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[ { "docid": "22636179", "title": "", "text": "Texaco’s complaint was filed, jurisdiction to hear the case would have been lacking. It is a well-settled principle that federal appellate review of judgments rendered by state courts can only occur in this Court, on appeal or by writ of certiorari. See District of Columbia Court of Appeals v. Feldman, 460 U. S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U. S. 413, 416 (1923); see also Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 296 (1970). Both the Court of Appeals and appellee here recognize the relevance of this rule. See 784 F. 2d 1133, 1141-1142 (CA2 1986); Brief for Appellee 44. It is said, however, that this principle applies only to review of the substance of state judgments, and that the federal action now before us involved solely a constitutional challenge to procedures for enforcement of the state judgment, totally apart from the merits of the state-court action itself. Id., at 45-46; 784 F. 2d, at 1144-1145. In the circumstances of the present case I find this asserted distinction completely unconvincing. As we have said, “[i]f the constitutional claims presented to a United States district court are inextricably intertwined” with the merits of a judgment rendered in state court, “then the district court is in essence being called upon to review the state-court decision. This the district court may not do.” District of Columbia Court of Appeals v. Feldman, supra, at 483-484, n. 16. While the question whether a federal constitutional challenge is inextricably intertwined with the merits of a state-court judgment may sometimes be difficult to answer, it is apparent, as a first step, that the federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is. difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. The opinions of the District Court and the Court of" } ]

[ { "docid": "22969687", "title": "", "text": "B. Rooker-Feldman The Rooker-Feldman doctrine, named for Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), stands for the proposition that a party aggrieved by a state-court decision cannot appeal that decision to a district court, but must instead petition for a writ of certiorari from the United States Supreme Court. This circuit has devised a number of for-mulae for determining when a district court lacks jurisdiction under the Rooker-Feldman doctrine; broken down to essentials, there are two categories of cases barred by the doctrine. First, when the federal courts are asked to “engage in appellate review of state court proceedings,” the doctrine necessarily applies. Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 390 (6th Cir.2002). In determining when a plaintiff asks for appellate review, we have in the past looked to the relief sought, see Dubuc v. Mich. Bd. of Law Exam’rs, 342 F.3d 610, 618-19 (6th Cir.2003), or asked the question whether the plaintiff alleges “that the state court’s judgment actively caused him injury [rather than] that the judgment merely failed to redress a preexisting injury,” Pieper v. Am. Arbitration Ass’n, Inc., 336 F.3d 458, 461 n. 1 (6th Cir.2003). See also Hutcherson v. Lauderdale County, 326 F.3d 747, 755 (6th Cir.2003) (“ ‘[T]he fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.’ ”) (quoting Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996)); Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 937 (6th Cir.2002) (The doctrine “precludes federal court jurisdiction where the claim is a specific grievance that the law was invalidly — even unconstitutionally — applied in the plaintiffs particular case.”) (internal quotation marks and citations (omitted)). The second category of cases barred by Rooker-Feldman is those which allege an injury that predates a state-court determination, but present issues inextricably intertwined with the claim asserted in the prior" }, { "docid": "22969732", "title": "", "text": "myriad of issues raised in this case. In the alternative, because the “England-reservsdion” doctrine is inapplicable, res judicata bars DLX’s federal takings claim. I will discuss each issue in turn. I. Under the Rooker-Feldman doctrine, lower federal courts do not have jurisdiction to review state court decisions; only the United States Supreme Court has jurisdiction to correct state court judgments. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The Rooker-Feldman doctrine deprives lower federal courts of jurisdiction to engage in appellate review of state court decisions or to adjudicate federal claims that are “inextricably intertwined” with a state court judgment. See Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 390 (6th Cir.2002). A federal claim is “inextricably intertwined” with a state court judgment when the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring); Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492 (6th Cir.2001). In this case, DLX’s federal takings claim is “inextricably intertwined” with the Kentucky state court judgment. Specifically, the Kentucky Supreme Court dismissed DLX’s state takings claim for want of jurisdiction based on its application of federal law; namely, the standards set forth in Williamson County Reg'l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). See Commonwealth v. DLX, Inc., 42 S.W.3d 624, 627 (Ky.2001). DLX then filed a federal takings claim in district court. To ensure DLX’s takings claim was ripe for review, the district court, like the Kentucky Supreme Court, applied the Supreme Court’s two-prong ripeness test from Williamson. Under Williamson, a Fifth Amendment takings claim is not ripe for review until (1) the government entity charged with implementing the regulations has reached a final decision inflicting an actual, concrete injury, and (2) if a State provides an" }, { "docid": "3321401", "title": "", "text": "against state officials where the state is the real party in interest. Pennhurst, 465 U.S. at 101-02, 104 S.Ct. 900. Accordingly, Plaintiffs claims against the Colorado Court of Appeals and the Supreme Court of Colorado are barred by the Eleventh Amendment. In addition, the state courts are not “persons” for purposes of § 1983. Will, 491 U.S. at 71, 109 S.Ct. 2304. This court finds that the State Defendants are entitled to Eleventh Amendment immunity. B. The Rooker-Feldman Doctrine Plaintiffs claims in this case are directly related to orders entered by the state court in Plaintiffs cases challenging his denial of admission to the Colorado Bar. The Rooker-Feldman doctrine is a jurisdictional prohibition that is based on 28 U.S.C. § 1257, which holds that federal review of state court judgments may be obtained only in the United States Supreme Court. See Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). Rooker-Feldman not only bars consideration of issues that were actually presented to and decided by a state court, but it also bars consideration of constitutional claims that are “inextricably intertwined with” issues that were ruled upon by a state court. See Feldman, 460 U.S. at 483-84 n. 16, 103 S.Ct. 1303. A constitutional claim is inextricably intertwined with issues reached by a state court “if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.” Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir.1995). In short, Rooker-Feldman precludes a federal action if the relief requested in the federal action would effectively reverse some action or decision by a state court, or would effectively void its ruling. Id. To determine whether claims are inextricably intertwined, “the fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.” Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996); see also Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 707 (10th Cir.2004) (holding that courts" }, { "docid": "6848393", "title": "", "text": "the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. Catz v. Chalker, 142 F.3d 279, 293 (6th Cir.1998) (quoting Keene Corp. v. Cass, 908 F.2d 293, 296-97 (8th Cir.1990) (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring))), amended by 248 F.3d 284 (6th Cir.2001); see also Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 937 (6th Cir.2002) (quoting Catz for the same proposition); Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492-93 (6th Cir.2001) (quoting Justice Marshall in Pennzoil). Though simple in concept, the doctrine is not easily applied. This is because the doctrine is, as this court has described it, “simple (yet nonetheless confusing).” Gottfried v. Med. Planning Servs., 142 F.3d 326, 330 (6th Cir.1998). The district court in the present case held that the Rooker-Feldman doctrine precludes Peterson’s claims in federal court because Peterson’s federal complaint merely restated many of the allegations Peterson made in the earlier state court proceedings. See Peterson, 2000 WL 1279169, at *2. Specifically, the court noted that paragraphs 7-36 of Peterson’s amended complaint were almost identical to the allegations made in Peterson’s emergency motion to the state court. Ibid. Writing that Rooker-Feldman applies when an issue was raised and adjudicated in a prior state court proceeding and when claims made in federal court “arise out of the very same incidents” that gave rise to an earlier state court adjudication, the district court held that Rooker-Feldman deprived it of subject matter jurisdiction over Peterson’s claims. See id. at *3 (quoting Peterson Novelties, Inc. v. Royal Oak Township, 98-71094, slip op. (E.D.Mich. Dec. 16, 1999)). In trying to support the district court’s disposition on appeal, the City similarly seizes upon the fact that Peterson’s federal case and its earlier state court case arise out of a common factual nexus. In other words, according to the City, the issues in the two cases are “inextricably intertwined” because the same facts that form the basis for Peterson’s constitutional claims in federal court formed the basis" }, { "docid": "21742826", "title": "", "text": "the losing party’s claim that the state judgment itself violates the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). We have held that there are two elements to a Rooker-Feldman analysis. “First, in order for the Rooker-Feldman doctrine to apply to a claim presented in federal district court, the issue before the Court must be [inextricably intertwined] with the claim asserted in the state court proceeding.” Catz v. Chalker, 142 F.3d 279, 293 (6th Cir.1998) (quotation omitted). “Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment.” Id. (quotation omitted). Second, the Rooker-Feldman doctrine precludes federal court jurisdiction where the claim is “a specific grievance that the law was invalidly — even unconstitutionally — applied in the plaintiffs particular case.” Id. In contrast, the Rooker-Feldman doctrine does not bar federal court jurisdiction where the claim is “a general challenge to the constitutionality of the state law applied in the state action.” Id. See also Patmon, 224 F.3d at 509-10. In this case, the district court held that it lacked subject matter jurisdiction under the Rooker-Feldman abstention doctrine because “[cjlearly, Plaintiffs’ complaints amount to nothing more than a challenge to various state-court judgments against them.” J.A. at 184 (Opinion and Order). The record fully supports this conclusion. In Count I of their November 9, 1999 complaint before the district court, the Tropfs directly attacked the state court judgments against them: 9. That the authorities in Michigan will provide no remedy for the theft of Plaintiffs’ land except that Plaintiffs accept a collusive, unjust, and un-col-lectable Judgment ... and that the Defendants be allowed to wrongfully confiscate the Plaintiffs [sic] land without trial, or compensation ... violating the Plaintiffs [sic] constitutional rights under the Fourteenth Amendment. 23. That the Michigan Courts have consistently refused to apply the Michigan Law applicable to the Plaintiffs’ claims because of the collusive nature of the lawsuits, and, the decisions" }, { "docid": "7900198", "title": "", "text": "from this statutory authorization is that “federal review of state court judgments can be obtained only in the United States Supreme Court.” Kenmen, 314 F.3d at 473 (internal quotation marks omitted). Thus, “Rooker-Feldman precludes a party losing in state court from seeking what in substance would be appellate review of a state judgment in a United States district court, based on the losing party’s claim that the state court judgment itself violates the loser’s federal rights.” Id. (internal brackets, ellipses and internal quotation marks omitted). The Supreme Court has applied the Rooker-Feldman jurisdictional bar to two categories of claims, those (1) actually decided by a state court, see Rooker v. Fid. Trust Co., 263 U.S. 413, 415, 44 S.Ct. 149, 68 L.Ed. 362 (1923); or (2) “inextricably intertwined” with a state court judgment, see Dist. of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 482 n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Plainly, the merits of Pitt-7’s claims for relief based on alleged violations of federal water rights law under 7 U.S.C. § 1926 and federal and antitrust law were not actually decided by the Oklahoma district court, which performed no merits analysis and dismissed Pitt-7’s appeal due to defective service of process. Whether Pitt-7’s federal court claims are “inextricably intertwined” with the Oklahoma state court’s judgment is the question that we must resolve. To apply the “inextricably intertwined” standard, we ask “ ‘whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.’ ” Kenmen, 314 F.3d at 476 (quoting Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996)). “In other words, we approach the question by asking whether the state-court judgment caused, actually and proximately, the injury for which the federal-court plaintiff seeks redress.” Kenmen, 314 F.3d at 476 (emphasis omitted). If it did, Rooker-Feldman deprives the federal court o'f jurisdiction; if it did not, Rooker-Feldman provides no bar. Applying that standard, Pitt-7’s claims do not result from the state court judgments dismissing, and then affirming that dismissal of, Pitt-7’s appeal of the Board of" }, { "docid": "1316293", "title": "", "text": "claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring). Several lower federal courts relied on Justice Marshall’s approach to expand Rooker-Feldman, holding that federal claims were barred because they were “inextricably intertwined” with state-court judgments. Indeed, Rooker-Feldman tripped up plaintiffs in our circuit even though they did not seek relief from a state-court judgment and their claims were not identical to claims asserted in state court. See, e.g., Prince v. Ark. Bd. Exam’rs in Psychol., 380 F.3d 337, 340 (8th Cir.2004) (quoted ante at 754-55); Ace Const. v. City of St. Louis, 263 F.3d 831, 833 (8th Cir.2001) (holding that the plaintiffs due process challenge to a city ordinance was barred because it was “inextricably intertwined” with a state-court ruling that plaintiff lacked standing to challenge the ordinance); Lemonds v. St. Louis County, 222 F.3d 488, 492-93, 495 (8th Cir.2000) (explaining that Rooker-Feldman bars “indirect attempts by federal plaintiffs to undermine state court decisions”; quoting Justice Marshall’s concurrence to affirm dismissal of plaintiffs “creative attempts to reclothe the failed due process claim in new constitutional garb.”). Then, in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005), the Supreme Court clarified the “limited circumstances” in which Rooker-Feldman bars subject matter jurisdiction. Id. at 291, 125 S.Ct. 1517. In its introductory remarks, the unanimous Court noted that the doctrine, which was “[v]ariously interpreted in the lower courts, ... has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases.” Id. at 283, 125 S.Ct. 1517. The Court held that Rooker-Feldman “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by" }, { "docid": "10589480", "title": "", "text": "Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), bars attempts by a federal plaintiff to receive appellate review of a state-court decision in a federal district court. Two categories of claims are barred by Rooker-Feldman: those which allege some injury arising directly from the state court’s judgments, and those which allege an injury predating the state-court’s judgments but which are still “inextricably intertwined” with state-court judgments. In determining whether a claim is in the first category, we look to the nature of the relief demanded and the particular injury alleged; “ ‘the fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.’ ” Hutcherson v. Lauderdale County, 326 F.3d 747, 755 (6th Cir.2003). In determining whether a claim is in the second category, we look to Justice Marshall’s test in Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring): [T]he federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. See Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 391 (6th Cir.2002); Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492-94 (6th Cir.2001) (applying “inextricably intertwined” test to hold abstention appropriate). An exception to the doctrine is that where a claim represents a “general challenge ... to a state law implicated” in the state decision, the federal courts have jurisdiction over that general challenge. Catz v. Chalker, 142 F.3d 279, 294-95 (6th Cir.1998); see also Feldman, 460 U.S. at 482-83, 103 S.Ct. 1303 (“To the extent that Hickey and Feldman mounted a general challenge to the constitutionality of Rule 461(b)(3), however, the District Court did have subject-matter jurisdiction over their complaints.”)." }, { "docid": "22969689", "title": "", "text": "state court proceeding. Adopting Justice Marshall’s phrasing in Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring), this circuit has held, The federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment! Peterson Novelties, 305 F.3d at 391. See, e.g., Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492-94 (6th Cir.2001) (applying “inextricably intertwined” test to hold Rooker-Feldman abstention appropriate). DLX’s claim is of the second type: the injury alleged is the permit denial that predates the state-court proceedings, not the state-court decision itself, and the relief that DLX requests is monetary. Therefore, the doctrine bars jurisdiction only to the extent that the-district court must determine that the state court decided an issue wrongly in order for DLX’s claim to succeed; Here, the state court decided that administrative exhaustion was a necessary component of a state constitutional takings claim; that although certain exceptions applied to that requirement, DLX met none of them; and that DLX had failed to exhaust administratively its claims. See DLX, 42 S.W.3d at 624-26. As administrative exhaustion is explicitly not a component of a federal takings claim, the district court could have con- eluded that DLX had established a regulatory taking of its property under the Fifth Amendment and was entitled to relief without undermining any of the state court’s conclusions. Indeed, as discussed below, the Supreme Court in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195-97, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), clearly contemplates that after a state just-compensation proceeding, a federal-court action will be filed. Rooker-Feldman is inapplicable here. C. Williamson County Prong-Two Ripeness and Administrative Exhaustion Williamson County, 473 U.S. at 186-91, 194-96, 105 S.Ct. 3108, sets out two requirements for a" }, { "docid": "6848391", "title": "", "text": "suit. The district court granted the defendants’ motion for judgment on the pleadings, holding that Peterson’s claims were “inextricably intertwined” with issues earlier presented to the state court and were therefore precluded by the Rooker-Feldman doctrine. See Peterson Novelties, Inc. v. City of Berkley, No. 99-73256, 2000 WL 1279169, at *2 (E.D.Mich. Aug.4, 2000). It is from this holding that Peterson appeals to this court. II The District Court’s Application of the Rooker-Feldman Doctrine The Rooker-Feldman doctrine, derived from two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), holds that lower federal courts lack subject matter jurisdiction to engage in appellate review of state court proceedings or to adjudicate claims “inextricably intertwined” with issues decided in state court proceedings. See, e.g., Patmon v. Michigan Supreme Court, 224 F.3d 504, 506 (6th Cir.2000) (noting that, pursuant to Rooker-Feldman, application to the Supreme Court is “the only avenue for federal review of state court proceedings”); Holloway v. Brush, 220 F.3d 767, 778 (6th Cir.2000) (en banc) (reading the doctrine as “teach[ing] that federal courts have no subject matter jurisdiction to entertain federal constitutional claims that are inextricably intertwined with a state court’s ruling in an earlier action, when their adjudication would be tantamount to a review [of] the state court decision.” (quotations omitted)); United States v. Owens, 54 F.3d 271, 274 (6th Cir.1995) (noting that the doctrine “stands for the proposition that a federal district court may not hear an ap peal of a case already litigated in state court”). In defining what is meant by “inextricably interwined,” this court has adopted the reasoning of Justice Marshall and of the Eighth Circuit that: [T]he federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive" }, { "docid": "22969688", "title": "", "text": "Cir.2003), or asked the question whether the plaintiff alleges “that the state court’s judgment actively caused him injury [rather than] that the judgment merely failed to redress a preexisting injury,” Pieper v. Am. Arbitration Ass’n, Inc., 336 F.3d 458, 461 n. 1 (6th Cir.2003). See also Hutcherson v. Lauderdale County, 326 F.3d 747, 755 (6th Cir.2003) (“ ‘[T]he fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.’ ”) (quoting Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996)); Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 937 (6th Cir.2002) (The doctrine “precludes federal court jurisdiction where the claim is a specific grievance that the law was invalidly — even unconstitutionally — applied in the plaintiffs particular case.”) (internal quotation marks and citations (omitted)). The second category of cases barred by Rooker-Feldman is those which allege an injury that predates a state-court determination, but present issues inextricably intertwined with the claim asserted in the prior state court proceeding. Adopting Justice Marshall’s phrasing in Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring), this circuit has held, The federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment! Peterson Novelties, 305 F.3d at 391. See, e.g., Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492-94 (6th Cir.2001) (applying “inextricably intertwined” test to hold Rooker-Feldman abstention appropriate). DLX’s claim is of the second type: the injury alleged is the permit denial that predates the state-court proceedings, not the state-court decision itself, and the relief that DLX requests is monetary. Therefore, the doctrine bars jurisdiction only to the extent that the-district court must determine that the state" }, { "docid": "13308551", "title": "", "text": "of his adversary; he asserts injury at the hands of the court, and the second suit therefore is an effort to obtain collateral review. It must be dismissed not on the basis of preclusion [res judicata] but for lack of jurisdiction [Rooker-Feldman ]. This distinction based upon state-court status as a plaintiff or defendant is a helpful shorthand, but ... should not be understood as a per se rule. Garry, 82 F.3d at 1365-67. Looking first to Rooker-Feldman, we have adopted a two-part inquiry for determining whether the doctrine applies in a given case. We first determine whether the federal claim is “inextricably intertwined” with the claim asserted in the prior state court proceeding: Under the [Rooker-\\ Feldman doctrine, the federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. Catz v. Chalker, 142 F.3d 279, 293 (6th Cir.1998) (quoting Keene Corp. v. Cass, 908 F.2d 293, 296-97 (8th Cir.1990)). We next consider whether the federal claim is a “general challenge to the constitutionality of the state law applied in the state action,” to which the Rooker-Feldman doctrine would not apply, or “a specific grievance that the law was invalidly— even unconstitutionally — applied in the plaintiff’s particular case,” that would raise a Rooker-Feldman bar. Catz, 142 F.3d at 293. Plaintiffs concede that their federal complaint asserts “violations of their substantive due process and equal protection rights based upon the same essential facts as those underlying the State Case.” They argue that their claims are not inextricably intertwined, however, because they are not challenging the state court’s decision. Indeed, Plaintiffs agree with the state court’s finding that their constitutional rights were violated. They seek, through this federal action, money damages for the constitutional violations that the state court has already found to exist. Plaintiffs argue" }, { "docid": "6761831", "title": "", "text": "103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)). The Feldman Court stated that “United States District Courts ... do not have jurisdiction ... over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those decisions may only be had in this Court.” Tropf v. Fidelity National Title Ins. Co., 289 F.3d 929, 936 (6th Cir.2002)(quoting Feldman, 460 U.S. at 486, 103 S.Ct. 1303; and citing Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492 (6th Cir.2001)). In a recent decision of the United States Court of Appeals for the Sixth Circuit, Howard v. Whitbeck, 382 F.3d 633 (6th Cir.2004); the Court reaffirmed that the Rooker-Feldman doctrine bars attempts by a federal plaintiff to receive appellate review of a state-court decision in a federal district court. The Sixth Circuit has devised “a number of formulae for determining when a district court lacks jurisdiction under the Rooker-Feldman doctrine; broken down to essentials, there are two categories of cases barred by the doctrine.” DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, (6th Cir.2004). First, when the district court is asked to “engage in appellate review of state court proceedings,” the doctrine necessarily applies. Id. (quoting Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 390 (6th Cir.2002)). In determining when a plaintiff is seeking appellate review, the Sixth Circuit looks to the relief sought, or asks the question “whether the plaintiff alleges ‘that the state court’s judgment actively caused him injury [rather than] that the judgment merely failed to redress a preexisting injury.’ ” DLX at 516 (quoting Pieper v. Am. Arbitration Ass’n, Inc., 336 F.3d 458, 461, n. 1 (6th Cir.2003)). The second category of cases barred by the Rooker-Feldman doctrine are those which allege an injury that predates a state-court determination, “but present issues inextricably intertwined with the claim asserted in the prior state court proceeding.” DLX, Inc., at 516-19. The Sixth Circuit has held: The federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only" }, { "docid": "6761832", "title": "", "text": "by the doctrine.” DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, (6th Cir.2004). First, when the district court is asked to “engage in appellate review of state court proceedings,” the doctrine necessarily applies. Id. (quoting Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 390 (6th Cir.2002)). In determining when a plaintiff is seeking appellate review, the Sixth Circuit looks to the relief sought, or asks the question “whether the plaintiff alleges ‘that the state court’s judgment actively caused him injury [rather than] that the judgment merely failed to redress a preexisting injury.’ ” DLX at 516 (quoting Pieper v. Am. Arbitration Ass’n, Inc., 336 F.3d 458, 461, n. 1 (6th Cir.2003)). The second category of cases barred by the Rooker-Feldman doctrine are those which allege an injury that predates a state-court determination, “but present issues inextricably intertwined with the claim asserted in the prior state court proceeding.” DLX, Inc., at 516-19. The Sixth Circuit has held: The federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. Id. (quoting Peterson Novelties, 305 F.3d at 391). To this end, the doctrine bars federal court jurisdiction where the claim is “a specific grievance that the law was invalidly — even unconstitutionally — applied in the plaintiffs particular case.” Tropf, 289 F.3d at 937 (quoting Catz. v. Chalker, 142 F.3d 279, 293 (6th Cir.1998)). However, the Sixth Circuit appears to have limited the preclusive impact of the concept of “inextricably intertwined”. In Catz v. Chalker, 142 F.3d 279, 281 (6th Cir.1998), aptly described by Chief Judge Boggs as “a very complicated case, both procedurally and factually,” the Plaintiff challenged a divorce decree entered by a state court in Arizona. The Plaintiff alleged that many of the Arizona divorce court rulings were procured by a variety" }, { "docid": "3321402", "title": "", "text": "it also bars consideration of constitutional claims that are “inextricably intertwined with” issues that were ruled upon by a state court. See Feldman, 460 U.S. at 483-84 n. 16, 103 S.Ct. 1303. A constitutional claim is inextricably intertwined with issues reached by a state court “if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.” Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir.1995). In short, Rooker-Feldman precludes a federal action if the relief requested in the federal action would effectively reverse some action or decision by a state court, or would effectively void its ruling. Id. To determine whether claims are inextricably intertwined, “the fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.” Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir.1996); see also Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 707 (10th Cir.2004) (holding that courts should ask “ ‘whether the state court judgment caused, actually and proximately, the injury for which [the party] seeks redress’ ”) (quoting Kenmen Engineering v. City of Union, 314 F.3d 468, 476 (10th Cir.2002)). Plaintiffs allegations fall squarely within the scope of the Rooker-Feldman doctrine and, therefore, preclude this court from reviewing them. While Plaintiff does set forth allegations that his constitutional rights have been violated, ultimately he is seeking to void state court orders. Under Rooker-Feldman, the redress for these alleged injuries is through the state court appellate process to the United States Supreme Court. Federal district courts can neither address these injuries nor review the state court proceedings. 28 U.S.C. § 1257 (2008). Accordingly, Plaintiffs claims against the State Defendants are properly dismissed for lack of subject matter jurisdiction. 3.Plaintiff’s Motion for Preliminary Injunction The plaintiff is requesting an injunction pursuant to Fed.R.Civ.P. 65(b). A party seeking preliminary injunction must meet the following four conditions: (1) the movant will suffer irreparable harm unless the injunction issues; (2) there is a substantial likelihood the" }, { "docid": "21742825", "title": "", "text": "court proceedings is jurisdictionally limited to the Supreme Court of the United States by 28 U.S.C. § 1257. See also Patmon v. Michigan Sup.Ct, 224 F.3d 504, 506 (6th Cir.2000). We refer to this doctrine as the Rooker-Feldman doctrine. See also Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The Feldman Court stated that “United States District Courts ... do not have jurisdiction ... over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those decisions may only be had in this Court.” Feldman, 460 U.S. at 486, 103 S.Ct. 1303; see also Anderson v. Charter Township of Ypsilanti 266 F.3d 487, 492 (6th Cir.2001). In a more recent decision, the Supreme Court restated the doctrine as follows: “under [the doctrine] a party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim that the state judgment itself violates the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). We have held that there are two elements to a Rooker-Feldman analysis. “First, in order for the Rooker-Feldman doctrine to apply to a claim presented in federal district court, the issue before the Court must be [inextricably intertwined] with the claim asserted in the state court proceeding.” Catz v. Chalker, 142 F.3d 279, 293 (6th Cir.1998) (quotation omitted). “Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment.” Id. (quotation omitted). Second, the Rooker-Feldman doctrine precludes federal court jurisdiction where the claim is “a specific grievance that the law was invalidly — even unconstitutionally — applied in the plaintiffs particular case.” Id. In contrast, the Rooker-Feldman doctrine does not bar federal court jurisdiction where the claim is “a general" }, { "docid": "10589481", "title": "", "text": "intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. See Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 391 (6th Cir.2002); Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492-94 (6th Cir.2001) (applying “inextricably intertwined” test to hold abstention appropriate). An exception to the doctrine is that where a claim represents a “general challenge ... to a state law implicated” in the state decision, the federal courts have jurisdiction over that general challenge. Catz v. Chalker, 142 F.3d 279, 294-95 (6th Cir.1998); see also Feldman, 460 U.S. at 482-83, 103 S.Ct. 1303 (“To the extent that Hickey and Feldman mounted a general challenge to the constitutionality of Rule 461(b)(3), however, the District Court did have subject-matter jurisdiction over their complaints.”). However, even where a general constitutional attack is mounted, the state proceedings may foreclose the federal claim under the doctrine of res judicata. See Feldman, 460 U.S. at 487-88, 103 S.Ct. 1303 (“[W]e expressly do not reach the question of whether the doctrine of res judicata forecloses litigation on these elements of the complaints.”). D. The District Court’s Decision The district court, after describing the Rooker-Feldman doctrine, classified Howard’s claim as an as-applied challenge. Howard’s complaint alleges that § 600.2963 is unconstitutional in denying access to the courts to indigents who are unable to pay the initial partial filing fee. The district court reasoned that because § 600.2963(7) allows for waiver of that fee, the statute was capable of constitutional application, and Howard could only be complaining of the application of the statute to his particular case. J.A. at 214. Having concluded that the “general challenge” exception to the Rooker-Feldman doctrine did not apply, the district court went on to determine that Howard’s federal claim was inextricably intertwined with the state-court decision, because for Howard" }, { "docid": "13308550", "title": "", "text": "state court judgment itself, Rooker-Feldman directs that the lower federal courts lack jurisdiction. If the injury alleged is distinct from that judgment, i.e., the party maintains an injury apart from the loss in state court and not “inextricably intertwined” with the state judgment, ... res judicata may apply, but Rooker-Feldman does not_ [W]e offer[ ] the following rough guide to determining whether Rooker-Feld-man or res judicata should be applied to a federal plaintiff making a claim due to unhappiness with a prior state-court ruling: if the federal plaintiff was the plaintiff in state court, apply res judicata; if the federal plaintiff was the defendant in state court, apply Rooker-Feldman. We stated in Homola [v. McNamara, 59 F.3d 647, 650 (7th Cir.1995) ]: A plaintiff who loses and tries again encounters the law of preclusion [res judicata]. The second complaint shows that the plaintiff wants to ignore rather than upset the judgment of the state tribunal. A defendant who has lost in state court and sues in federal court does not assert injury at the hands of his adversary; he asserts injury at the hands of the court, and the second suit therefore is an effort to obtain collateral review. It must be dismissed not on the basis of preclusion [res judicata] but for lack of jurisdiction [Rooker-Feldman ]. This distinction based upon state-court status as a plaintiff or defendant is a helpful shorthand, but ... should not be understood as a per se rule. Garry, 82 F.3d at 1365-67. Looking first to Rooker-Feldman, we have adopted a two-part inquiry for determining whether the doctrine applies in a given case. We first determine whether the federal claim is “inextricably intertwined” with the claim asserted in the prior state court proceeding: Under the [Rooker-\\ Feldman doctrine, the federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance," }, { "docid": "6848392", "title": "", "text": "for federal review of state court proceedings”); Holloway v. Brush, 220 F.3d 767, 778 (6th Cir.2000) (en banc) (reading the doctrine as “teach[ing] that federal courts have no subject matter jurisdiction to entertain federal constitutional claims that are inextricably intertwined with a state court’s ruling in an earlier action, when their adjudication would be tantamount to a review [of] the state court decision.” (quotations omitted)); United States v. Owens, 54 F.3d 271, 274 (6th Cir.1995) (noting that the doctrine “stands for the proposition that a federal district court may not hear an ap peal of a case already litigated in state court”). In defining what is meant by “inextricably interwined,” this court has adopted the reasoning of Justice Marshall and of the Eighth Circuit that: [T]he federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. Catz v. Chalker, 142 F.3d 279, 293 (6th Cir.1998) (quoting Keene Corp. v. Cass, 908 F.2d 293, 296-97 (8th Cir.1990) (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring))), amended by 248 F.3d 284 (6th Cir.2001); see also Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 937 (6th Cir.2002) (quoting Catz for the same proposition); Anderson v. Charter Township of Ypsilanti, 266 F.3d 487, 492-93 (6th Cir.2001) (quoting Justice Marshall in Pennzoil). Though simple in concept, the doctrine is not easily applied. This is because the doctrine is, as this court has described it, “simple (yet nonetheless confusing).” Gottfried v. Med. Planning Servs., 142 F.3d 326, 330 (6th Cir.1998). The district court in the present case held that the Rooker-Feldman doctrine precludes Peterson’s claims in federal court because Peterson’s federal complaint merely restated many of the allegations Peterson made in the earlier state court proceedings. See" }, { "docid": "6654185", "title": "", "text": "at 487, 103 S.Ct. 1303. In a later case, Justice Marshall succinctly restated the Rooker/Feldman doctrine when he reasoned as follows: While the question whether a federal constitutional challenge is inextricably intertwined with the merits of a state-court judgment may sometimes be difficult to answer, it is apparent, as a first step, that the federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment. Pennzoil Co. v. Texaco, Inc. 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring); see also Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923) (dismissing a complaint that a judgment of the Supreme Court of Indiana violated several federal constitutional provisions, because “[t]o do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original.”). Courts applying the Rooker/Feldman abstention doctrine have done so in two types of cases: (1) cases that constitute a direct attack on the substance of the state court opinion, and (2) cases that challenge the procedures by which a state court arrived at its decision. See Catz v. Chalker, 142 F.3d 279, 294-95 (6th Cir.1998) (distinguishing between thesé types of Rook-er/Feldman cases). In this appeal, the Rooker/Feldman issue is of the first type, i.e., whether the district court’s conclusions regarding Anderson’s federal-takings claim place it in the position of evaluating the merits of the state trial court’s decision. The district court concluded that “[Anderson’s] motion for summary judgment effectively asks this Court to adjudicate issues which are inextricably intertwined with those issues already decided upon by the state court.” Anderson, 71 F.Supp.2d at 734 (emphasis in original). After a careful analysis of Michigan and federal regulatory-takings law, as well as the specific rulings of the Michigan" } ]

[ { "docid": "16925044", "title": "", "text": "collective work, certainly was entitled to place its own copyright notice on it. . I deal below with the use of a multiplier based simply upon the alleged printability and downloadability of the images, divorced from any punitive concerns. . A multiplier was used in circumstances such as this in Bruce v. Weekly World News, Inc., 150 F.Supp.2d 313, 321 (D.Mass.2001), vacated in part, 310 F.3d 25 (1st Cir.2002). As Judge Stanton has pointed out, however, \"[t]he Bruce court did not analyze the issue, because both sides’ experts adopted the multiplier concept.” Stehrenberger v. R.J. Reynolds Tobacco Holdings, Inc., 335 F.Supp.2d 466, 468 (S.D.N.Y.2004). . Id. at 468-69. . Id. Accord, Straus v. DVC Worldwide, Inc., 484 F.Supp.2d 620 648-49 (S.D.Tex.2007) (following Stehrenberger); see also Fournier v. Erickson, 253 F.Supp.2d 664, 665 (S.D.N.Y.2003) (\"no further argument on the matter of expert testimony on damages multipliers as industry custom will be considered”). . His basis for supposing that this is so is that the methodology, if it may be called that, is said to appear in the Business Practices Guide of the American Society of Media Photographers. Alvarez Aff. Ex. B, at 29. The fact that a group of photographers publishes a formula suggesting damage payments in cases of infringement that are overwhelmingly fa vorable to photographers, not to mention at odds with the Copyright Act, does not make that suggestion an industry standard. . Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1118 (2d Cir.1986). . On Davis, 246 F.3d at 168. . No explanation is offered for cutting the base fee by only half despite the fact that the additional quantity is only one fourth that for the prior increment. . See Alvarez Aff. Ex. B, at 57-61. . See id. . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993). . Zaremba v. General Motors Corp., 360 F.3d 355, 358 (2d Cir.2004). . E.g., In re Rezulin Prods. Liab. Litig., 369 F.Supp.2d 398, 420 (S.D.N.Y.2005) (internal quotation marks and citations omitted). . See Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d" } ]

[ { "docid": "19043564", "title": "", "text": "Federal Circuit. See, e.g., Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1579 (Fed.Cir.1992) (analogizing actual damages under the Semiconductor Chip Protection Act of 1984, 17 U.S.C. §§ 901-14, to actual damages under copyright law as interpreted by the United States Court of Appeals for the Ninth Circuit (Ninth Circuit)); Dayva Int’l, Inc. v. Award Prods. Corp., 152 F.3d 943, 1998 WL 105945, at *2-4 (Fed.Cir. Mar. 11, 1998) (table) (unpublished) (discussing the burden of proof for demonstrating the infringer’s profits under 17 U.S.C. § 504(b) (1994) as interpreted by the Ninth Circuit); Nam Jin Yeu v. Kim, 940 F.2d 678, 1991 WL 142608, at *4 (Fed.Cir. July 31, 1991) (table) (unpublished) (explaining that the Copyright Act does not provide for treble damages). Therefore, the court looks to the decisions of other federal appellate and district courts for guidance on selecting the proper test for determining actual damages. Cf. Wechsberg, 54 Fed.Cl. at 166 (discussing the court’s discretion to select the proper theory of recovery). An award of actual damages “undertakes to compensate the [copyright] owner for any harm he suffered by reason of the infringer’s illegal act.” On Davis v. The Gap, Inc., 246 F.3d 152, 159 (2d Cir.2001) (citing Fitzgerald Publ'g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1118 (2d Cir.1986); Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir.1994)). Assessing actual damages is a “case-by-case assessment of the factors involved, rather than application of hard and fast rules.” Walker, 28 F.3d at 412. To determine actual damages, courts customarily assess “the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement.” United States v. King Features Entm’t, Inc., 843 F.2d 394, 400 (9th Cir.1988) (quoting Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc. (MGM), 772 F.2d 505, 512 (9th Cir.1985) (internal quotation marks omitted)); Brooktree, 977 F.2d at 1579 (measuring actual damages “in terms of the diminished market value of the copyrighted work” (citing MGM, 772 F.2d at 512)); Fitzgerald Publ’g Co., 807 F.2d at 1118; see Nimmer § 14.02[A] (“Actual damages represent the extent to which" }, { "docid": "23694949", "title": "", "text": "infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. . In calculating the \"profits of the infringer that are attributable to the infringement,\" § 504(b) provides for a two-part procedure. First, the copyright owner is required \"to present proof ... of the infringer’s gross revenue.” Gross revenue, however, does not mean the infringer's gross revenue from all of its commercial endeavors. Rather, as the Ninth Circuit recently observed, a copyright owner is only entitled to present the gross revenue for the infringer’s line of business or project related to the infringement. On Davis v. Gap, Inc., 246 F.3d 152, 160 (2d Cir.2001). Second, once the copyright owner has submitted evidence of the infringer's gross revenue, the infringer, pursuant to § 504(b), bears the burden of proving \"his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” Thus, under § 504(b), all gross revenue is presumed to be profit \"attributable to the infringement,” unless the infringer is able to demonstrate otherwise. . The Defendants raise three other issues on appeal, which we dispose of summarily. They challenge the district court’s calculation of the damage award in two respects: (1) they maintain that the court, in calculating the profits attributable to infringement, imper-missibly included the value of the personal property at Satyr Hill; and (2) they assert that the court erroneously allowed NSI to present evidence of the gross revenue of the entire Satyr Hill enterprise, rather than limiting the evidence to the gross revenue derived by the Defendants from the infringing portions of Satyr Hill. Neither of these contentions has merit. The court did not include the value of personal property at Satyr Hill in calculating the profits attributable to infringement; thus, the Defendants’ first challenge is without basis. With respect to their second contention, the Defendants misapprehend controlling law. As we noted, see supra note 9, in order to recover profits attributable to infringement, a copyright owner must submit to the court the gross revenue of the" }, { "docid": "97799", "title": "", "text": "it would have been willing to grant a license as a condition for recovering damages based on the fair market value of the license, the perverse result would be that some of the most assiduously protective copyright holders would be unable to recover the fair market value of their wrongfully appropriated copyrighted property. For example, posit a songwriter who has consistently refused to license her work for use in advertising. A fast-food chain nonetheless uses one of her songs in a nationwide television campaign. If the rule were as SAP proposes, the songwriter could not recover hypothetical-license damages for the infringement even if she could demonstrate that other songwriters charge $200,000 to license comparable songs for such use. This rule could operate unfairly, given the difficulty the songwriter might face in meeting the burden of proof for lost profits and infringer’s profits. See On Davis v. The Gap, Inc., 246 F.3d 152, 166 (2d Cir.2001) (“In our view, as between leaving the victim of the illegal taking with nothing, and charging the illegal taker with the reasonable cost of what he took, the latter, at least in some circumstances, is the preferable solution.”). SAP argues that a plaintiff must show that a license would have been granted because, if the copyright holder would never have agreed to license her work, she could not, by definition, have lost any licensing fees “as a result of the infringement” within the meaning of 17 U.S.C. § 504(b). We disagree. The Second Circuit has explained: If a copier of protected work, instead of obtaining permission and paying the fee, proceeds without permission and without compensating the owner, it seems entirely reasonable to conclude that the owner has suffered damages to the extent of the infringer’s taking without paying what the owner was legally entitled to exact a fee for. We can see no reason why, as an abstract matter, the statutory term “actual damages” should not cover the owner’s failure to obtain the market value of the fee the owner was entitled to charge for such use. On Davis, 246 F.3d at 165. The" }, { "docid": "23086795", "title": "", "text": "copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.\" Because the allegedly infringing use of Davis’s eyewear occurred in the late summer of 1996, far more than three months after the first publication of the eyewear in 1991 but before registration of the copyright on May 16, 1997, Davis is ineligible for statutory damages or attorney's fees. . Section 504(a) makes the infringer liable for (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). 17 U.S.C. § 504(a). Section 504(b) goes on to provide: The copyright owner is entitled to recover the actual damages suffered ... as a result of the infringement, and any profits of the infringer thal are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. 17 U.S.C. § 504(b). . See Encyclopedia Brown Prods. Ltd. v. Plome Box Office, Inc., 25 F.Supp.2d 395, 400-02 (S.D.N.Y.1998) (reading Business Trends to preclude license fee under \"profits\" prong of § 504(b), but not to preclude license fee under \"actual damages” prong); Childress v. Taylor, 798 F.Supp. 981, 991 (S.D.N.Y.1992) (questioning \"whether Business Trends precludes as a matter of law [plaintiff's] claim for lost royalties”). . See Sunset Lamp Corp. v. Alsy Corp., 749 F.Supp. 520, 524 (S.D.N.Y.1990) (reading Business Trends as \"merely limiting] the extent of actual recovery to amounts proved to have resulted from a defendant's infringement, as demonstrated by credible evidence”). . Furthermore, the fair market value to be determined is not of the highest use for which plaintiff might license but the use the infringer made. Thus, assuming the defendant made infringing use of a Mickey" }, { "docid": "23008254", "title": "", "text": "taken into account in computing the actual damages. In establishing the in-fringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the in-fringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. 17 U.S.C. § 504(b). Congress explicitly provides for two distinct monetary remedies — actual damages and recovery of wrongful profits. These remedies are two sides of the damages coin — the copyright holder’s losses and the infringer’s gains. “Actual damages are usually determined by the loss in the fair market value of the copyright, measured by the profits lost due to the infringement' or by the value of the use of the copyrighted work to the infringer.” McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566 (7th Cir.2003); see also Mackie v. Rieser, 296 F.3d 909, 914 (9th Cir.2002) (approving of recovery of reasonable license fee). To take away incentives for would-be infringers and “to prevent the infringer from unfairly benefitting from a wrongful act,” the statute also provides for the recovery of wrongfully obtained profits resulting from the infringement. H.R.Rep. No. 94-1476, § 504, at 161 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5777; cf. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 517 (9th Cir.1985) (“Frank I ”) (interpreting the Copyright Act of 1909). These profits can be direct or indirect. Profits indirectly gained from infringements used in promotional efforts, as is the case here, fall squarely within the rubric of wrongful profits. See generally, Andreas v. Volkswagen of Am., Inc., 336 F.3d 789 (8th Cir.2003); Bouchat v. Baltimore Ravens Football Club, 346 F.3d 514 (4th Cir.2003); Mackie, 296 F.3d at 914; On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir.2001); Cream Records Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826, 828 (9th Cir.1985). Under § 504(b), actual damages must be suffered “as a result of the infringement,” and recoverable profits must be “attributable to the infringement.” From the statutory language, it is apparent that a causal link between the infringement" }, { "docid": "1540438", "title": "", "text": "the defense of fair use may have been available to Interface for the infringements by the exhibitors (for example, if they were playing music only to demonstrate audio equipment), Interface never entered any evidence in support of this defense. Under these circumstances, the defense fails. VII.Liability of Third Party Defendant Third-party defendant McGraw-Hill has argued persuasively that the federal Copyright Act should not be construed to include the common law rights of contribution and indemnity, and that McGraw-Hill should therefore not be liable to Interface for contribution for any damages arising out of performances at the awards ceremony. The court need not decide this question, however, because, as explained above, the evidence was insufficient for a finding that Interface should be held liable on any basis for performances at the awards ceremony. Because Interface is not liable, there is no issue of contribution to be decided. VIII.Damages The Copyright Act- authorizes injunctive relief to the prevailing party in a copyright infringement case. 17 U.S.C. § 502(a). An injunction is appropriate if there is a “substantial likelihood of further infringement of plaintiffs’ copyrights.” Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288, 1295 (D.R.I.1982). Courts routinely authorize injunctions in cases in which the owner of an establishment has, after repeated warnings by ASCAP that performances at the establishment violated the Copyright Act, nevertheless refused to purchase a license. See, e.g., Id.; Famous Music Corp. v. Bay State Harness Horse Racing, 423 F.Supp. 341 (D.Mass.1976), aff'd, 554 F.2d 1213 (1st Cir.1977). This case presents different circumstances, however, because although Interface did repeatedly refuse to purchase a. license from ASCAP, it had a good faith basis for believing that, under existing law, no license was required. No injunction in these circumstances is warranted. The Copyright Act also authorizes a court to award either actual damages, 17 U.S.C. § 504(b), or statutory damages ranging from $500 to $ 20,000, 17 U.S.C. § 504(c)(1), to a copyright holder whose copyright has been infringed. Plaintiffs in this case seek statutory damages in the amount of $5,000 for each of the ten infringements of copyright, for a total" }, { "docid": "22294064", "title": "", "text": "so the question of his entitlement to such relief is not before this Court. . As noted above, Dash also appealed the district court’s denial of his Rule 59(e) motion for reconsideration, (J.A. 616); however, Dash neither briefed nor argued this issue on appeal. See Fed. R.App. P. 28(a)(9) (requiring an appellant to brief all issues raised on appeal); see also Edwards v. City of Goldsboro, 178 F.3d 231, 241 n. 6 (4th Cir.1999) (holding that failure to comply with Rule 28(a)(9) \"triggers abandonment of that claim on appeal”); Cavallo v. Star Enter., 100 F.3d 1150, 1152 n. 2 (4th Cir.1996). Because Dash briefed and argued only the merits of summary judgment, Dash has abandoned his appeal of the district court's denial of his Rule 59(e) motion for reconsideration. Had Dash not abandoned this claim, we would have reviewed it for abuse of discretion, a much more deferential standard than the de novo standard applied to our review of the district court’s grant of summary judgment. See Brown v. French, 147 F.3d 307, 310 (4th Cir.1998). . As noted above, Dash amended his Complaint to remove his claim for statutory damages under § 504(c). Accordingly, the only question before the district court — and now this Court' — was Dash's entitlement to damages under § 504(b). . In On Davis, the Second Circuit decided that \"as between leaving the victim of the illegal taking with nothing, and with charging the illegal taker with the reasonable cost of what he took, the latter, at least in some circumstances, is the preferable solution.” On Davis, 246 F.3d at 166. Specifically, to rule out actual damages in cases where the owner “may be incapable of showing a loss of either sales or licenses to third parties ... would mean that in such circumstances an infringer may steal with impunity.” Id. In emphasizing these points, however, the Second Circuit was discussing the importance of construing § 504(b)’s \"actual damages” provision broadly enough to include “the owner’s loss of the fair market value of the license fees he might have exacted of the defendant.” Id." }, { "docid": "22294035", "title": "", "text": "(emphasis in original). Although the district court’s broad statement, out of context, could be read to support the proposition that an infringer’s payment for the use of any copyrighted work of a given type is sufficient to show that the infringer would have been reasonably required to pay a fee to use a specific work of that type, the facts of the case speak differently. There, unlike here, the infringer had executed a number of licensing agreements with the copyright holder. Such agreements provided concrete evidence that Wood would have earned a licensing fee for HMH’s excess uses of his copyrighted photographs. We cannot adopt statements made in this context to conclude that payment of any licensing fee for a general type of copyrighted work is sufficient to show that all works of that type would garner such a fee, absent any other evidence that the allegedly infringed work had a fair market value. Likewise, the fact that Appellees used “Yep,” which included TGB, is not enough to show that Dash’s beat had fair market value. Allowing the “fact of use” alone to rebut a properly supported motion for summary judgment would entirely eliminate the copyright holder’s obligation to show that his work had a fair market value, a requirement designed to combat the risk of abuse inherent in recognizing a plaintiffs lost licensing fee as a measure of § 504(b) actual damages. On Davis, 246 F.3d at 166. In the face of overwhelming evidence that his work lacked fair market value, the plaintiff would need only to reiterate his initial complaint — that the defendant used his work without his permission — to survive summary judgment. This result is almost certainly not what our sister circuits had in mind when they recognized lost licensing fees as a measure of actual damages under § 504(b). Such an approach would preclude a § 504(b) actual damages claim from ever being decided on summary judgment, no matter how speculative or deficient the copyright holder’s evidence concerning his work’s fair market value. This outcome not only obviates the requirement that a copyright holder" }, { "docid": "14287720", "title": "", "text": "For these reasons, Fournier’s motion to preclude Defendants’ assertion of the fair use doctrine at trial is denied. F. EVIDENCE CONCERNING WHAT FOURNIER WOULD HAVE CHARGED TO LICENSE HIS WORK Section 504(b) of the Copyright Act makes available to the victim of copyright infringement “the actual damages suffered by him or her as a result of the infringement....” 17 U.S.C. § 504(b). As evidence of actual damages, Fournier seeks to offer evidence regarding what he would have charged Defendants for use of his work. Defendants object, claiming that any such evidence is too unreliably self-serving and speculative to be material to the question of actual damages. The Second Circuit has stated that an award of actual damages in the copyright context “should be broadly construed to favor victims of infringement.” Davis, 246 F.3d at 165 (citing William F. Patry, Copyright Law and Practice 1167 (1994) (“Within reason, any ambiguities should be resolved in favor of the copyright owner.”) and 4 Melville B. Nimmer & David Nim-mer, Nimmer on Copyright § 14.02 at 14-12 (1999) (“Uncertainty will not preclude a recovery of actual damages if the uncertainty is as to amount, but not as to the fact that actual damages are attributable to the infringement.”)) (other citations omitted). “The question is not what the owner would have charged, but rather what is the fair market value.” Davis, 246 F.3d at 166. “[T]he copyright owner is competent to testify as to the extent to which the copyright’s value has been injured or destroyed by defendant’s actions.” Fitzgerald Publ’g Co., Inc., 807 F.2d at 1118-19 (citations omitted). The Second Circuit recognized “that awarding the copyright owner the lost license fee can risk abuse. Once the defendant has infringed, the owner may claim unreasonable amounts as the license fee.... The law therefore exacts that the amount of damages may not be based on undue speculation.” Id. (citation omitted; internal quotations omitted). In this case, speculation can be minimized by evidence of sales figures for Fournier’s past work as well as evidence illustrating the progress of negotiations as the parties worked toward a mutually agreeable" }, { "docid": "18099432", "title": "", "text": "the infringer resulting from the infringement that are not otherwise taken into account in calculating actual damages. 17 U.S.C. § 504(b). Actual damages are usually determined by the loss in the fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer. Deltak, Inc. v. Advanced Systems, Inc., 767 F.2d 357, 360 (7th Cir.1985). MSI asserts that its actual damages can be calculated based either on the hypothetical value of an up-front license fee for Media 100 to distribute a Windows-compatible version of Comet/CG software, or on the approximate value of performing the translation of Comet/CG source code from Macintosh to Windows. Media 100 argues that damages based on the up-front license fee theory are speculative because they do not accurately identify the value of the Windows-compatible Comet/CG software to Media 100. In addition, Media 100 disputes MSI’s claim that it can recover actual damages based on lost translation fees because the parties never agreed that Media 100 would hire MSI to convert the Comet/CG source code to Windows. Despite Media 100’s disagreement with the jury’s calculations, MSI presented sufficient evidence at trial to sustain the jury’s award of $1.2 million in actual damages for copyright infringement. It is not improper for a jury to consider either a hypothetical lost license fee or the value of the infringing use to the infringer to determine actual damages, provided the amount is not based on “undue speculation.” On Davis v. The Gap, Inc., 246 F.3d 152, 166 (2d Cir.2001). See also Interactive Pictures Corp. v. Infinite Pictures, Inc., 274 F.3d 1371 (Fed.Cir.2001) (upholding award of actual damages based on estimated lump sum royalty payment from infringer’s projected sales). In this case MSI presented the jury with several ways of measuring actual damages, including: (1) the value of a software development fee to convert MSI’s Comet/CG source code to Windows (equivalent to the value of the translation project undertaken by Vanteon); (2) the value of the software license fees Media 100 paid to Inscriber, the" }, { "docid": "23086781", "title": "", "text": "basis. The hypothesis of a negotiation between a willing buyer and a willing seller simply seeks to determine the fan- market value of a valuable right that the infringer has illegally taken from the owner. The usefulness of the test does not depend on whether the copyright infringer was in fact himself willing to negotiate for a license. The honest purchaser is hypothesized solely as a tool for determining the fair market value of what was illegally taken. Furthermore, even if the larcenous intentions of the Deltak infringer furnished a valid reason to decline to award damages in that case for the fair market value of what the infringer took for free, that circumstance, as noted above, would not apply to all copyright infringement cases. Honest users can infringe by reason of oversight or good faith mistake. The in-fringer may have mistakenly believed in good faith that the work was in the public domain, that his licensor was duly licensed, or that his use was protected by fair use. On the record before us, there is no reason to believe the Gap had any intention to infringe a copyright. * sk * i|: * We conclude that Section 504(b) permits a copyright owner to recover actual damages, in appropriate circumstances, for the fair market value of a license covering the defendant’s infringing use. Davis adduced sufficiently concrete evidence of a modest fair market value of the use made by the Gap. The Gap’s use of the infringed matter was substantial. If Davis were not compensated for the market value of the use taken, he would receive no compensation whatsoever. C. Punitive Damages The district court correctly held that Davis is not entitled to punitive damages under the Copyright Act. See Davis I, 1999 WL 199005, at *8. As a general rule, punitive damages are not awarded in a statutory copyright infringement action. See 4 Nimmer § 14.02[B], at 14-23 to 24; Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir.1983). The purpose of punitive damages — to punish and prevent malicious conduct — -is generally achieved under the Copyright Act" }, { "docid": "22294001", "title": "", "text": "A. The Copyright Act entitles a copyright owner to recover “the actual damages suffered by him or her as a result of the infringement....” 17 U.S.C. § 504(b). The statute does not define the term “actual damages,” nor does it prescribe a method for calculating such damages. Generally, the term “actual damages” is “broadly construed to favor victims of infringement.” On Davis v. The Gap, Inc., 246 F.3d 152, 164 (2d Cir.2001) (collecting cases and commentaries). Consistent with this approach, courts have recognized several methods for calculating the compensable loss suffered by a copyright owner as a result of infringement. It is generally accepted that “the primary measure of recovery is the extent to which the market value of the copyrighted work at the time of the infringement has been injured or destroyed by the infringement.” Fitzgerald Publ’g Co., Inc. v. Baylor Publ’g Co., Inc., 807 F.2d 1110, 1118 (2d Cir.1986); Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir.2002) (quoting Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 (9th Cir.1985)). The fair market value of a copyrighted work is derived from an objective, not a subjective, inquiry. Mackie, 296 F.3d at 917 (general claims of “hurt feelings” or an owner’s “personal objections to the manipulation of his artwork” do not factor into the determination of the work’s fair market value). Injury to a copyrighted work’s market value can be measured in a variety of ways. The first possible measure is the amount of revenue that the copyright holder lost as a result of infringement, such as his own lost sales of the work. Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir.2004). Another cognizable measure is the fair market value of the licensing “fee the owner was entitled to charge for [the infringer’s] use” of his copyrighted work. On Davis, 246 F.3d at 165 (“If a copier of protected work, instead of obtaining permission and paying the fee, proceeds without permission and without compensating the owner, ... the owner has suffered damages to the extent of the infringer’s taking without paying what the" }, { "docid": "97797", "title": "", "text": "Oracle database copyrights. As a factual matter, we agree that Oracle never would have granted such a license to TomorrowNow. Oracle executives testified generally that Oracle never licenses its software to competitors, and specifically that Oracle never would have granted a license to Tomor-rowNow. However, we disagree with SAP’s legal argument. Under 17 U.S.C. § 504(b), a “copyright owner is entitled to recover [1] the actual damages suffered by him or her as a result of the infringement, and [2] any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” “[A] plaintiff in a § 504(b) action must establish [a] causal connection” “between the infringement and the monetary remedy sought.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir.2004). “ ‘Actual damages’ 'are the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement.” Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 (9th Cir.1985). Although “actual damages” can be awarded in the form of lost profits, hypothetical-license damages also constitute an acceptable form of “actual damages” recoverable under Section 504(b). See Polar Bear Prods., 384 F.3d at 708-09. To calculate the “market value” of the injury to the plaintiff based on a hypothetical-license theory, we look to “the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the actual use made by [the infringer] of the plaintiffs work.” Wall Data Inc. v. L.A. Cnty. Sheriff's Dep’t, 447 F.3d 769, 786 (9th Cir.2006) (internal quotation marks omitted). We have never required a plaintiff in a copyright infringement case to show that it would have licensed the infringed material. We decline to impose such a requirement now. A copyright holder has the right to refuse to license its work and should not be penalized for exercising that right. See Stewart v. Abend, 495 U.S. 207, 228-29, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990). If we were to require a copyright holder to demonstrate that" }, { "docid": "97798", "title": "", "text": "awarded in the form of lost profits, hypothetical-license damages also constitute an acceptable form of “actual damages” recoverable under Section 504(b). See Polar Bear Prods., 384 F.3d at 708-09. To calculate the “market value” of the injury to the plaintiff based on a hypothetical-license theory, we look to “the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the actual use made by [the infringer] of the plaintiffs work.” Wall Data Inc. v. L.A. Cnty. Sheriff's Dep’t, 447 F.3d 769, 786 (9th Cir.2006) (internal quotation marks omitted). We have never required a plaintiff in a copyright infringement case to show that it would have licensed the infringed material. We decline to impose such a requirement now. A copyright holder has the right to refuse to license its work and should not be penalized for exercising that right. See Stewart v. Abend, 495 U.S. 207, 228-29, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990). If we were to require a copyright holder to demonstrate that it would have been willing to grant a license as a condition for recovering damages based on the fair market value of the license, the perverse result would be that some of the most assiduously protective copyright holders would be unable to recover the fair market value of their wrongfully appropriated copyrighted property. For example, posit a songwriter who has consistently refused to license her work for use in advertising. A fast-food chain nonetheless uses one of her songs in a nationwide television campaign. If the rule were as SAP proposes, the songwriter could not recover hypothetical-license damages for the infringement even if she could demonstrate that other songwriters charge $200,000 to license comparable songs for such use. This rule could operate unfairly, given the difficulty the songwriter might face in meeting the burden of proof for lost profits and infringer’s profits. See On Davis v. The Gap, Inc., 246 F.3d 152, 166 (2d Cir.2001) (“In our view, as between leaving the victim of the illegal taking with nothing, and charging the illegal taker with" }, { "docid": "16283600", "title": "", "text": "infringement context, “willful blindness means that a defendant knew it might be selling infringing goods but nevertheless intentionally shielded itself from discovering the truth.” Fendi Adele, S.R.L. v. Ashley Reed Trading, Inc., 507 Fed.Appx. 26, 31 (2d Cir.2013) (internal quotation marks omitted). The court recognizes that “caution must be exercised in granting summary judgment when state of mind is in issue.” Nora Beverages, Inc. v. Perrier Group of America, Inc., 269 F.3d 114, 125 (2d Cir.2001). Nevertheless, “[w]illful blindness can be proven on summary judgment; a finding of actual knowledge is not required.” Fendi Adele, 507 Fed.Appx. at 31. If the evidence establishes that “no reasonable juror could fail to find other than willful infringement,” the court may award enhanced statutory damages for willful infringement at the summary judgment stage. Microsoft Corp. v. Black Cat Computer Wholesale, Inc., 269 F.Supp.2d 118, 123 (W.D.N.Y.2002). Because the Lanham Act does not provide guidelines for courts to use in determining an appropriate statutory damages award, courts in the Second Circuit have relied on the standard for willfulness applied to copyright claims asserted pursuant to the Copyright Act, 17 U.S.C. § 504. See Tu v. TAD Sys. Tech. Inc., No. 08-CV-3822, 2009 WL 2905780, at *5 (E.D.N.Y. Sept. 10, 2009). Under the Copyright Act, courts consider factors including: (1) the expenses saved and the profits reaped; (2) the revenues lost by the plaintiff; (3) the value of the copyright; (4) the deterrent effect on others besides the defendant; (5) whether the defendant’s conduct was innocent or willful; (6) whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced; and (7) the potential for discouraging the defendant. See Fitzgerald Publ’g. Co., Inc. v. Baylor Publ’g. Co., 807 F.2d 1110, 1116—17 (2d Cir.1986). Courts maintain “wide discretion” in determining an award of statutory damages. Id. at 1116. B. Damages under the Copyright Act Under the Copyright Act, an infringer may be liable for either (1) the copyright owner’s actual damages and any additional profits of the infringer, or (2) statutory damages. 17 U.S.C. § 504(a); Plaintiffs" }, { "docid": "22294000", "title": "", "text": "in order to “make[ ] clear that there is no gain to be made from taking someone else’s intellectual property without their consent.” Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir.1994). Recognizing the wide range of copyrightable material and the numerous considerations involved in quantifying the losses and gains that result from infringement, this Court has emphasized that damages under § 504(b) are to be determined via a “case-by-case assessment of the factors involved, rather than [by] application of hard and fast rules.” Id. Under the plain language of § 504, the copyright owner is first entitled to any actual damages resulting from infringement and then to certain profit damages, but only to the extent such profit damages are not contemplated in the calculation of the plaintiffs actual damages. See 17 U.S.C. § 504(b). Accordingly, we look first to the question of Dash’s entitlement to actual damages under § 504(b) before considering whether he is entitled to a portion of the profits derived from Wres-tlemania XXIV and the August 24, 2009, RAW broadcast. A. The Copyright Act entitles a copyright owner to recover “the actual damages suffered by him or her as a result of the infringement....” 17 U.S.C. § 504(b). The statute does not define the term “actual damages,” nor does it prescribe a method for calculating such damages. Generally, the term “actual damages” is “broadly construed to favor victims of infringement.” On Davis v. The Gap, Inc., 246 F.3d 152, 164 (2d Cir.2001) (collecting cases and commentaries). Consistent with this approach, courts have recognized several methods for calculating the compensable loss suffered by a copyright owner as a result of infringement. It is generally accepted that “the primary measure of recovery is the extent to which the market value of the copyrighted work at the time of the infringement has been injured or destroyed by the infringement.” Fitzgerald Publ’g Co., Inc. v. Baylor Publ’g Co., Inc., 807 F.2d 1110, 1118 (2d Cir.1986); Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir.2002) (quoting Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 (9th Cir.1985)). The fair" }, { "docid": "23086782", "title": "", "text": "is no reason to believe the Gap had any intention to infringe a copyright. * sk * i|: * We conclude that Section 504(b) permits a copyright owner to recover actual damages, in appropriate circumstances, for the fair market value of a license covering the defendant’s infringing use. Davis adduced sufficiently concrete evidence of a modest fair market value of the use made by the Gap. The Gap’s use of the infringed matter was substantial. If Davis were not compensated for the market value of the use taken, he would receive no compensation whatsoever. C. Punitive Damages The district court correctly held that Davis is not entitled to punitive damages under the Copyright Act. See Davis I, 1999 WL 199005, at *8. As a general rule, punitive damages are not awarded in a statutory copyright infringement action. See 4 Nimmer § 14.02[B], at 14-23 to 24; Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir.1983). The purpose of punitive damages — to punish and prevent malicious conduct — -is generally achieved under the Copyright Act through the provisions of 17 U.S.C. § 504(c)(2), which allow increases to an award of statutory damages in cases of willful infringement. See 4 Nimmer § 14.02[B], at 14-23 to 24; Kamakazi Music Corp. v. Robbins Music Corp., 534 F.Supp. 69, 78 (S.D.N.Y.1982). In any event, the question need not detain us long because Davis has failed to show willfulness on the Gap’s part. D. De Minimis Use The Gap contends that even if we find fault with the district court’s reasons, its dismissal should be affirmed under the doctrine de minimis non curat lex because any copying of protected matter was trivial. The de minimis doctrine essentially provides that where unauthorized copying is sufficiently trivial, “the law will not impose legal consequences.” Ringgold, 126 F.3d at 74. See also Knickerbocker Toy Co. v. Azrak-Hamway Int'l, Inc., 668 F.2d 699, 703 (2d Cir.1982) (denying relief under de minimis doctrine where defendant had made a copy of plaintiffs work, but copy was never used); American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 916 (2d Cir.1994)" }, { "docid": "16925032", "title": "", "text": "for punishing the publisher. The use of a multiplier in Step 4 — this one for alleged encouragement of users to copy from the CD-ROMs — is similar to some extent. The application of the multiplier, in Mr. Dauman’s opinion, appears to depend to some degree on whether the alleged infringer “encouraged” copying by end users — as distinguished from selling a product from which end users might copy without encouragement by the publisher. This evidences the partially punitive function of this multiplier. The application of a multiplier in Step 5 for the use of an image without authorization — in other words, for infringement — is purely punitive and entirely improper. It certainly is not anything that would have been agreed between a willing licensor and a willing licensee. Indeed, arguments substantially the same as Mr. Dauman’s have been rejected in every case to consider the question. In Stehrenberger v. R.J. Reynolds Tobacco Holdings, Inc., for example, Mr. Dauman submitted a report that, on this point, was substantially the same as his report in this case. But Judge Stanton ruled that such testimony was inadmissible because Mr. Dauman’s opinion was based on “concepts of punishment for infringement, deterrence of similar behavior ..., and recompense for the costs and effort of litigation” that “form no part of ‘actual damages’ under the statute.” In consequence, even if Mr. Dauman had an acceptable basis for asserting that the industry applies such multipliers, multiplier testimo ny would be inadmissible. Step 4, to the extent it rests on punitive considerations, and Steps 3 and 5 of his opinion are excluded. Z. Additional Press Runs The measure of actual damages here is “the extent to which the market value of the copyrighted work at the time of the infringement has been injured or destroyed by the infringement.” In most circumstances, that will be the reasonable value of a license authorizing the defendant’s use of the copyrighted work. Step 2 of Mr. Dauman’s opinion presupposes that the value of a license for the CNG is determined by assuming that an initial license would have been limited" }, { "docid": "21502457", "title": "", "text": "“believes that the price of $200 is fair and reasonable and represents the fair market value.... ” Without additional evidence, Bell’s subjective belief as to the fair market value of his photo is not enough to prove damages. See On Davis, 246 F.3d at 166 (“The question is not what the owner would have charged, but rather what is the fair market value.”). Likewise, the price that Bell listed on his website is not sufficiently concrete to show the fair market value of his photo. See Dash v. Mayweather, 731 F.3d 303, 318 (4th Cir. 2013) (“To survive summary judgment of an actual damages claim, a copyright holder must show that the thing taken had a fair market value. Evidence of the owner’s prior sale or licensing of copyrighted work will satisfy this burden when it is sufficiently concrete.” (internal citations and quotation marks omitted)). Despite the fact that the district court granted defendants’ motion to compel Bell’s sales records, Bell never produced any evidence supporting his assertion that he has sold the photo for $200. Finally, Bell argues that defendants did not present any evidence contradicting Bell’s affidavit or price listing. However, it was Bell’s burden to prove damages, and defendants were not required to produce any evidence showing a lack of damages. See McRoberts Software, 329 F.3d at 568. Thus, the district court did not err in granting summary judgment for O’Brien, Insurance Concepts, and Cheatham on the issue of damages. 2. Motion to Compel Discovery Next, Bell argues that the district court erred in denying his motions to compel discovery of defendants’ tax returns and the spreadsheet of Cheatham’s website traffic. We review the district court’s denial of a motion to compel for an abuse of discretion. e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 644 (7th Cir. 2011). The Copyright Act permits a plaintiff to recover an infringer’s profits that are “attributable to the infringement....” 17 U.S.C. § 504(b). The Act specifies that “[i]n establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer" }, { "docid": "22294036", "title": "", "text": "value. Allowing the “fact of use” alone to rebut a properly supported motion for summary judgment would entirely eliminate the copyright holder’s obligation to show that his work had a fair market value, a requirement designed to combat the risk of abuse inherent in recognizing a plaintiffs lost licensing fee as a measure of § 504(b) actual damages. On Davis, 246 F.3d at 166. In the face of overwhelming evidence that his work lacked fair market value, the plaintiff would need only to reiterate his initial complaint — that the defendant used his work without his permission — to survive summary judgment. This result is almost certainly not what our sister circuits had in mind when they recognized lost licensing fees as a measure of actual damages under § 504(b). Such an approach would preclude a § 504(b) actual damages claim from ever being decided on summary judgment, no matter how speculative or deficient the copyright holder’s evidence concerning his work’s fair market value. This outcome not only obviates the requirement that a copyright holder show that the infringed work had a fair market value, it also runs contrary to the well-established principles governing summary judgment under Federal Rule of Civil Procedure 56. See Glynn v. EDO Corp., 710 F.3d 209, 216 (4th Cir.2013) (“ ‘[CJoncluso-ry allegations and speculative assertions ... without further legitimate support clearly do[ ] not suffice’ to create a genuine issue of material fact.” (quoting Guinness PLC v. Ward, 955 F.2d 875, 901 (4th Cir.1992))). Thus, none of the facts recited in the Background section of the Einhorn Report is sufficient to show that Dash would have earned a licensing fee for Appellees’ use of TGB, and, accordingly, none is sufficient to rebut Appellees’ properly supported motions for summary judgment. Nor do these facts, taken together, create a genuine dispute for trial. Although we draw all reasonable inferences in favor of the non-moving party, “[a] party ‘cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.’ ” Stone, 105 F.3d at 191 (quoting Beale v. Hardy, 769" } ]

[ { "docid": "13932791", "title": "", "text": "MEMORANDUM OPINION GLEN M. WILLIAMS, District Judge. This case comes to the court on appeal from the order of the United States Bankruptcy Court for the Western District of Virginia entered on April 9, 1985, dismissing plaintiffs’ complaint in which plaintiffs sought to have dismissed, pursuant to 11 U.S.C. § 727 or alternatively 11 U.S.C. § 523, the debtors’ petition for bankruptcy under Chapter 7. In passing on an appeal from bankruptcy court, the district court must make an independent determination on the legal issues, but must accept the findings of fact of the bankruptcy judge unless those findings are clearly erroneous. Gilbert v. Scratch ’n Smell, Inc., 756 F.2d 320 (4th Cir.1985). A review of the record and the relevant law under this standard leads this court to conclude that the bankruptcy court’s order dismissing plaintiffs’ complaint must be reversed and that the debtors’ discharge in bankruptcy must be denied. I. Debtor, Tommy Thomas, operated a construction business from 1981 to 1984 during which time he engaged in business dealings with each of the named plaintiff creditors in this case. In August, 1984, Thomas filed for bankruptcy under Chapter 7. Subsequently, plaintiffs filed their complaint in which they consolidated their claims that discharge should be denied to Thomas under § 727, or that, alternatively, their individual claims were nondischargeable under 11 U.S.C. § 523. By order of the bankruptcy court, the plaintiffs’ § 727 claim was severed from their § 523 claims and the plaintiffs were put on terms to file separate complaints seeking nondischarge of individual debts under § 523. The plaintiffs chose to rely on their original complaint and not to file separate § 523 based claims. The relief sought in their complaint was founded on allegations that Thomas had obtained funds “based on false assertions,” which included advance payments in the amount of thirty thousand dollars from plaintiff Dominion Bank. At the evidentiary hearing on the § 727 claim, the plaintiffs presented evidence of alleged fraudulent conduct by Thomas arising during business transactions between Thomas and themselves as they were conducting business as building material suppliers," } ]

[ { "docid": "21558568", "title": "", "text": "to convert under 11 U.S.C. § 1112(b) is discretionary, as noted by the district court, the factors to be considered in entering such a motion are matters of law which we review de novo. Section 1112(b) of Title 11 provides: [T]he [bankruptcy court] may convert a case under this chapter [Chapter 11] to a case under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate, for cause.... A motion filed under this section invokes a two-step analysis, first to determine whether “cause” exists either to dismiss or to convert the Chapter 11 proceeding to a Chapter 7 proceeding, and second to determine which option is in “the best interest of creditors and the estate.” See In re Mechanical Maintenance, Inc., 128 B.R. 382, 386 (E.D.Pa.1991). Once “cause” is established, a court is required to consider this second question of whether to dismiss or convert. See In re Finney, 992 F.2d 43, 45 (4th Cir.1993). The “cause” requirement of § 1112(b) may be satisfied by showing a subjective bad faith on the part of the debtor, in that the motive for filing the Chapter 11 petition was to abuse the reorganization process, coupled with an objective element that reorganization is in fact unrealistic. See Carolin Corp. v. Miller, 886 F.2d 693, 700-02 (4th Cir.1989). In this case, the bankruptcy court made findings that the petition was filed in bad faith and that any proposed reorganization was futile, thus providing adequate cause for a § 1112(b) motion. These findings have not been challenged by the parties. Once a court turns to the second question of determining what is in the best interest of creditors and the estate, it must ascertain the impact on the creditors and on the estate of each of the options. Thus, it has been noted that the inquiry for this element cannot be completed without comparing the creditors’ interests in bankruptcy with those they would have under state law. See In re Mechanical Maintenance, Inc., 128 B.R. at 390. Moreover, in evaluating the" }, { "docid": "15736494", "title": "", "text": "sparingly. See, e.g., Carolin Corp. v. Miller, 886 F.2d 693, 694 (4th Cir.1989) (case could be dismissed \"with great caution and upon supportable findings both of the objective futility of any possibility of reorganization and the subjective bad faith of the petitioner in seeking this form of bankruptcy protection.”); In re Johns-Manville Coip., 36 B.R. 727, 737 (Bankr.S.D.N.Y.1984) (dismissal on bad faith grounds should be granted sparingly and on a clear showing of abuse of the bankruptcy process, avoiding an “intense focus on the debtor's motives in filing.”); In re 234-6 West 22nd St. Corp., 214 B.R. 751, 757 (Bankr.S.D.N.Y.1997). . Justices Brennan and Marshall said in their concurring opinion: \"Texaco clearly could exercise its right to appeal in order to protect its corporate interests even if it were forced to file in bankruptcy under Chapter 11. 11 U.S.C. § 362. Texaco, or its successors in interest, could go forward with the appeal, and if it did prevail on its appeal in Texas courts, the bankruptcy proceedings could be terminated. 11 U.S.C. § 1112. Texaco simply fails to show how the initiation of corporate reorganization activities would prevent it from obtaining meaningful appellate review.” 481 U.S. at 22, 107 S.Ct. 1519. Justice Stevens expressed a similar view. 481 U.S. at 32, n. 6, 107 S.Ct. 1519. Justice Black-mun, who also concurred separately, thought that the notion that Texaco could enter Chapter 11, pursue its appeal and then reemerge was \"somewhat at odds with the corporate reorganizations that might occur in bankruptcy,\" but he did not suggest there was a good faith issue. Id. at 28, 107 S.Ct. 1519, n. These remarks are dicta, but they may have been persuasive; there was never a litigated motion in the Texaco case to dismiss on bad faith grounds. . In In re Fox, the court declined “to adopt a per se rule that filing a bankruptcy as a substitute for posting an appeal bond always constitutes bad faith.” It agreed \"with those cases that look to the circumstances of the case, including whether or not the debtor could afford lo post such a" }, { "docid": "10749439", "title": "", "text": "reviewing its conclusions of law de novo.” Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.2006). With respect to a bankruptcy court’s dismissal of a Chapter 11 case, this is a matter within the discretion of the bankruptcy court. See 11 U.S.C. § 1112. Thus, as a general matter, this discretion will not be set aside by a district court unless there was an abuse of that discretion. See Hall v. Vance, 887 F.2d 1041, 1044 (10th Cir.1989); Adirondack Mines, Inc. v. U.S. Trustee, No. 10 Civ. 411, 2010 WL 4781529, at *2 (N.D.N.Y. Nov. 16, 2010). However, within the specific context of a bad faith dismissal in a bankruptcy case, this court must “review the bankruptcy court’s ultimate finding that the filing was not in good faith as one of fact subject to the clearly erroneous standard.” Carolin Corp. v. Miller, 886 F.2d 693, 702 (4th Cir.1989); see In re Premier Auto. Services, Inc., 492 F.3d 274 (4th Cir.2007) (reviewing bankruptcy court’s ultimate finding that filing was not in good faith as one of fact subject to “clearly erroneous” standard); In re Hall, Bayoutree Assocs., Ltd., 939 F.2d 802 (9th Cir.1991) (noting that question of whether case was filed in bad faith is factual one); U.S. Fidelity & Guar. Co. v. DJF Realty & Suppliers, Inc., 58 B.R. 1008 (Bankr.N.D.N.Y.1986) (reviewing bankruptcy court’s finding that filing was not in good faith, warranting dismissal, as one of fact subject to clearly erroneous standard). “The Bankruptcy Court’s determination that a bankruptcy petition was or was not filed in good faith is a purely factual finding evaluated under the clearly erroneous standard of review.” Allen v. Wells Fargo Bank Minn., N.A., 334 B.R. 746, 752 (Bankr.D.D.C.2005). B. As to Whether There Was Cause to Dismiss the Debtor’s Chapter 11 Case Pursuant to 11 U.S.C. § 1112(b) 1. Dismissal of a Chapter 11 Petition for Lack of Good Faith 11 U.S.C. § 1112(b) is a part of Chapter 11, the object of which “is to permit a potentially viable debtor to restructure and emerge from bankruptcy protection.” Kings Terrace Nursing Home" }, { "docid": "11160250", "title": "", "text": "as in that case, or reconversion to Chapter 7, as here. 141 B.R. at 99. A bankruptcy court may act under § 1112(b) on the motion of a party in interest or sua sponte as “necessary or appropriate” under § 105(a). Pleasant Pointe Apartments, Ltd. v. Kentucky Housing Corp., 139 B.R. 828, 831 (W.D.Ky.1992); 5 Collier on Bankruptcy § 1112.03[4] (1992). Reading these statutes in pari mate-ria, the district court reasoned that the bankruptcy court could deny Finney’s § 706(a) motion upon finding a sua sponte § 1112(b) reconversion to be warranted under § 105(a) and Carolin. With respect to whether § 105(a) was properly invoked here, the district court held that since a conversion creates no break in a bankruptcy case, Finney’s prior misconduct was “relevant to the [bankruptcy] court’s sua sponte reconversion. 141 B.R. at 100. We agree. Finney’s recalcitrance and fraud during the Chapter 7 proceedings, J.A. 84, and his resort to the § 706(a) motion only after his discharge was denied, are reasonably read as constituting abuse of process sufficient to trigger § 105(a). See Carolin, 886 F.2d at 702 (“[t]he subjective bad faith inquiry is designed to ... determine whether the petitioner’s real motivation is “to abuse the reorganization process’ ”) (citations omitted). While Finney’s actions do not justify an equitable override of his “onetime absolute right” to convert the case under § 706(a), they do justify the bankruptcy court’s sua sponte consideration of whether immediate reconversion under § 1112(b) is appropriate. 992 F.2d at 45. Because under the Fourth Circuit’s prior ruling in the case of Carolin Corp. v. Miller, 886 F.2d 693, 700-01 (4th Cir.1989), findings of both subjective bad faith and objective futility were required to dismiss a Chapter 11 case prior to a confirmation hearing, the Court remanded the Finney case back to the bankruptcy court to determine whether the bankruptcy case under Chapter 11 would be objectively futile. The bankruptcy court’s power to convert a case back from Chapter 11 to Chapter 7 for “cause” under 11 U.S.C. § 1112(b) is very comparable to its similar power to convert a" }, { "docid": "15736493", "title": "", "text": "on the Debtor. These procedures under the Bankruptcy Code are available to creditors in appropriate Chapter 11 cases and ordinarily make it particularly inappropriate to impose on the estate, and probably on these same creditors, the sizable cost of a trustee or examiner. In this case, without determining any issues that are not now before the Court, it would appear that the committee can appropriately perform any necessary investigation. Based on the foregoing, the Shareholder Group’s motion for dismissal of the case on the grounds of the Debtor’s alleged bad faith, for termination of the Debtor’s exclusivity period, and for appointment of an examiner with expanded powers or a trustee is denied. It is SO ORDERED. . Ronald Blendu, the fifth investor in BGI, joined in the shareholder derivative suit initially but settled with the counterclaimants prior to entry of judgment. In a separate lawsuit in Idaho, the Debtor is now seeking contribution from Blendu for part of the $3,000,000 judgment against him. . Many cases hold that courts should dismiss on bad faith grounds sparingly. See, e.g., Carolin Corp. v. Miller, 886 F.2d 693, 694 (4th Cir.1989) (case could be dismissed \"with great caution and upon supportable findings both of the objective futility of any possibility of reorganization and the subjective bad faith of the petitioner in seeking this form of bankruptcy protection.”); In re Johns-Manville Coip., 36 B.R. 727, 737 (Bankr.S.D.N.Y.1984) (dismissal on bad faith grounds should be granted sparingly and on a clear showing of abuse of the bankruptcy process, avoiding an “intense focus on the debtor's motives in filing.”); In re 234-6 West 22nd St. Corp., 214 B.R. 751, 757 (Bankr.S.D.N.Y.1997). . Justices Brennan and Marshall said in their concurring opinion: \"Texaco clearly could exercise its right to appeal in order to protect its corporate interests even if it were forced to file in bankruptcy under Chapter 11. 11 U.S.C. § 362. Texaco, or its successors in interest, could go forward with the appeal, and if it did prevail on its appeal in Texas courts, the bankruptcy proceedings could be terminated. 11 U.S.C. § 1112. Texaco" }, { "docid": "11160251", "title": "", "text": "trigger § 105(a). See Carolin, 886 F.2d at 702 (“[t]he subjective bad faith inquiry is designed to ... determine whether the petitioner’s real motivation is “to abuse the reorganization process’ ”) (citations omitted). While Finney’s actions do not justify an equitable override of his “onetime absolute right” to convert the case under § 706(a), they do justify the bankruptcy court’s sua sponte consideration of whether immediate reconversion under § 1112(b) is appropriate. 992 F.2d at 45. Because under the Fourth Circuit’s prior ruling in the case of Carolin Corp. v. Miller, 886 F.2d 693, 700-01 (4th Cir.1989), findings of both subjective bad faith and objective futility were required to dismiss a Chapter 11 case prior to a confirmation hearing, the Court remanded the Finney case back to the bankruptcy court to determine whether the bankruptcy case under Chapter 11 would be objectively futile. The bankruptcy court’s power to convert a case back from Chapter 11 to Chapter 7 for “cause” under 11 U.S.C. § 1112(b) is very comparable to its similar power to convert a case back from Chapter 13 to Chapter 7 for “cause” pursuant to 11 U.S.C. § 1307(c). Accordingly, applying the principles of that holding to the pres ent case, even if the Chapter 7 Trustee’s characterization of the Debtors’ conduct were accepted, appears to require that this Court determine whether “cause” exists to convert the case back to Chapter 7 under section 1307. In determining whether a bankruptcy debtor is proposing a Chapter 13 plan in “good faith”, the Court of Appeals for the Fourth Circuit has held that the bankruptcy court should consider all relevant circumstances, expressly including (1) the percentage of proposed repayment, (2) the financial situation of the debtor, (3) the time period for the plan, (4) employment history and prospects of the debtor, (5) the nature and amount of unsecured claims, (6) debtor’s honesty in representing facts, (7) past bankruptcy filings by the debtor, and any “unusual or exceptional” problems of the debtor. Deans v. O’Donnell, 692 F.2d 968 (4th Cir.1982). In the subsequent case of Neufeld v. Freeman, 794 F.2d 149" }, { "docid": "7117415", "title": "", "text": "the Court will not set aside findings of fact unless such findings are clearly erroneous. See Fed.R.Bankr.P. 8013; In re Downtown Properties, Ltd., 794 F.2d 647, 651 (11th Cir.1986). While conclusions of law are reviewed de novo, In re Owen, 86 B.R. 691, 693 (M.D.Fla.1988) rev’d on other grounds, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), discretionary rulings made pursuant to the Bankruptcy Code are reviewable only for abuse of discretion. See In re Albany Partners, Ltd., 749 F.2d 670, 674 (11th Cir.1984). III. Discussion A. Dismissal Order Singer alleges several errors relating to the Bankruptcy Court’s dismissal of its Chapter 11 petition. Singer claims that: SSMC failed to meet its burden of proof on its motion to dismiss, the Bankruptcy Court should have held an evidentiary hearing, the Bankruptcy Court applied the summary judgment standard and based its legal conclusions on facts it erroneously believed were not disputed, and the Bankruptcy Court relied on several material facts merely alleged by SSMC in finding that Singer’s case was filed in bad faith. These claims essentially challenge: (1) the factual basis underlying the Bankruptcy Court’s dismissal of Singer’s petition and (2) the procedural approach adopted by Chief Judge Paskay in determining whether to dismiss the petition. SSMC responds that overwhelming evidence supports the finding that the petition was filed in bad faith and that the Bankruptcy Court committed no procedural error in dismissing the petition. Section 1112(b) of the Bankruptcy Code provides that, on request from a party of interest, the court may dismiss a case for cause. See Colonial Daytona Ltd. Partnership v. American Sav. of Fla., 152 B.R. 996, 1000 (M.D.Fla.1993). In determining what constitutes “cause” under the Code, “the court may consider other factors as they arise, and use its equitable powers to reach an appropriate result in individual cases.” Albany Partners, 749 F.2d at 674 (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 406 [1977], U.S.Code Cong. & Admin.News 1978, pp. 5787, 6362). Of particular importance here, the Eleventh Circuit has determined that the debtor’s bad faith in filing its petition for relief constitutes" }, { "docid": "6090899", "title": "", "text": "of a judicially created concept, it makes that intent specific.” Id. at 553 (quoting Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prat, 474 U.S. 494, 501, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986)). See also The Penn Mutual Life Ins. Co. v. Woodscape L.P. (In re Woodscape L.P.), 134 B.R. 165 (Bankr.D.Md.1991). Accordingly, the court will look to judicially created definitions of good faith that are helpful to the necessary analysis under Section 362(c)(3). In the case of Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir.1989), the United States Court of Appeals for the Fourth Circuit explored the requirement of good faith in the context of a motion to dismiss chapter 11 case brought under Section 1112(b) of the Bankruptcy Code. The Court began its analysis by adopting a good faith filing requirement, that although not expressed in the Bankruptcy Code, was mandated in order to “proteet[ ] the jurisdictional integrity of the bankruptcy courts by rendering their powerful equitable weapons (i.e., avoidance of liens, discharge of debts, marshalling and turnover of assets) available only to those debtors and creditors with ‘clean hands.’ ” Id. at 698. The Court determined that a creditor seeking to dismiss the Chapter 11 case alleging that it was filed in bad faith, was required to prove two elements. Those elements: objective futility and subjective bad faith were to be decided by an analysis of the totality of the circumstances. Id. at 701-02. As to the objective futility component, the Court reasoned that the proper analysis required a determination whether there was any “hope of rehabilitation, except according to the debtor’s ‘terminal euphoria’[.]” Id. at 701-02 (quoting In re Little Creek Development Co., 779 F.2d 1068, 1073 (5th Cir.1986)). The subjective inquiry into bad faith, however, was stated to be “designed to insure that the petitioner actually intends ‘to use the provisions of Chapter 11... to reorganize or rehabilitate an existing enterprise, or to preserve going concern values of a viable or existing business.’ ” Id. at 702 (quoting In re Victory Constr. Co., 9 B.R. 549, 564 (Bankr.C.D.Cal.1981)(Victory I)). The Court further" }, { "docid": "23323263", "title": "", "text": "bankruptcy court denied that motion as well, “on equitable grounds” and “for good cause shown.” J.A. 91. A hearing was held on each of these motions. J.A. 5-7 (docket entry no. 13, docket entry 10/17/91); J.A. 83. Finney appealed the denial of his § 706(a) motion, and challenged the finding that he had made the real estate transfers in bad faith. The district court found no clear error in the latter finding. Finney v. Smith, 141 B.R. 94, 100 (Bankr.E.D.Va.1992). The court also held as a matter of law that a bankruptcy court may, in its discretion, deny a § 706(a) motion upon finding that immediate reconversion from Chapter 11 to Chapter 7 is appropriate under 11 U.S.C. § 1112(b), as that section was applied in Carolin Corp. v. Miller, 886 F.2d 693, 700-701 (4th Cir.1989). The court then remanded for additional fact-finding to determine whether circumstances justified such reconversion under Carolin. 141 B.R. at 103-104. This appeal followed. II Finney charges error solely in the district court’s conclusion of law, which we review de novo. In re Green, 934 F.2d 568, 570 (4th Cir.1991). The Bankruptcy Code allows a debtor to convert from Chapter 7 to Chapter 11,12, or 13 at any time, provided the ease has not been converted previously to Chapter 7. 11 U.S.C. § 706(a). “Any waiver of the right to convert a case under this subsection is unenforceable.” Id. The Code also provides that “on request of a party in interest or the United States trustee, and after notice and a hearing, the court may convert a [Chapter 11] case ... to a [Chapter 7] case\"... or may dismiss a [Chapter 11] case, whichever is in the best interest, of, creditors and the estate, for cause____” 11 U.S.C. § 1112(b). Finally, 11 U.S.C. § 105(a) provides that [t]he court may issue any order, process or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua" }, { "docid": "21558569", "title": "", "text": "may be satisfied by showing a subjective bad faith on the part of the debtor, in that the motive for filing the Chapter 11 petition was to abuse the reorganization process, coupled with an objective element that reorganization is in fact unrealistic. See Carolin Corp. v. Miller, 886 F.2d 693, 700-02 (4th Cir.1989). In this case, the bankruptcy court made findings that the petition was filed in bad faith and that any proposed reorganization was futile, thus providing adequate cause for a § 1112(b) motion. These findings have not been challenged by the parties. Once a court turns to the second question of determining what is in the best interest of creditors and the estate, it must ascertain the impact on the creditors and on the estate of each of the options. Thus, it has been noted that the inquiry for this element cannot be completed without comparing the creditors’ interests in bankruptcy with those they would have under state law. See In re Mechanical Maintenance, Inc., 128 B.R. at 390. Moreover, in evaluating the interests, the court must consider the interests of all of the creditors. In a case similar to that before us, where one creditor was prepared, upon dismissal of a Chapter 11 proceeding, to enforce a judgment against the debtor and against the interests of other creditors, the court stated: Though the movant seeks dismissal, § 1112(b) requires a determination of whether dismissal or conversion is in the best interests of creditors and the estate. In light of the pending state court action in which the movant seeks to enforce his judgment and the underlying bankruptcy principle of equality of distribution, the Court concludes that the interest of all the creditors will best be served by conversion, rather than by dismissal. In re Gilbert Broadcasting Corp., 54 B.R. 2, 5 (Bankr.D.N.J.1984) (emphasis added). We believe that these principles accurately flow from the requirements of 11 U.S.C. § 1112(b). The policy of the bankruptcy law to treat creditors in same classifications equally is central to the Bankruptcy Code. For instance, section 547 authorizes a bankruptcy court to" }, { "docid": "12010793", "title": "", "text": "no persuasive evidence of a favorable change in circumstances that would warrant the protection of the automatic stay as to the Property. The evidence indicates that the Property is less valuable than it was in the previous case and First Citizens has continued to accrue attorney’s fees and costs as a result of the multiple delays of the foreclosure and the proceedings in this Court. Its debt is also rapidly growing through the accrual of interest, attorney’s fees, costs, and unpaid property taxes. Debtor’s evidence clearly indicates that it lacks the ability to fund a plan capable of paying First Citizens and that it cannot offer First Citizens adequate protection. Although it relies on voluntary contributions from Worthy, this Court has previously found that such contributions have not been sufficiently substantiated and that any reorganization is not'within reasonable prospect. Therefore, the Court grants First Citizens in rem relief, either pursuant to its Motion or sua sponte, and orders that the filing of any bankruptcy petition in any jurisdiction within the six-month period following the entry of this Order shall not operate to stay First Citizens’ efforts to collect its debt and foreclose on the Property. Finally, the Court finds that Debtor’s bad faith also warrants the in rem relief. See McCray, 342 B.R. at 670 (finding that a debtor’s bad faith warrants in rem relief). The Fourth Circuit has found that filing a case in good faith is an implicit prerequisite to the right to obtain the equitable relief offered by the Bankruptcy Code. See Carolin Corp. v. Miller, 886 F.2d 693, 698 (4th Cir.1989). Under the Carotin standard, bad faith is demonstrated by a debtor’s subjective intent and the objective futility of the bankruptcy case. See id. at 700-701 (discussing bad faith in the context of the threshold dismissal of a chapter 11 case). “Subjective bad faith means an intent by the debtor to abuse the protections of Chapter 11 and to cause hardship or delay to creditors, without any real ability to reorganize.” See In re Belair 301-50 N.W. Quadrant Commercial Properties, Inc., 972 F.2d 338, 1992 WL" }, { "docid": "2922877", "title": "", "text": "petition may be dismissed at the very outset of the case if the petition was filed in bad faith. 17. The standard which must be used in deciding whether a Chapter 11 case should be dismissed as a bad faith filing is set forth in Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir.1989). In Carolin the Court of Appeals adopted a standard requiring that both objective futility and subjective bad faith be shown in order to warrant dismissals for want of good faith in filing. 18. The principal guidelines to be followed in making the two-pronged inquiry required by the Carolin ease are: the court should consider the totality of the circumstances; there is no exhaustive list of factors which should be considered; there is no single factor that will necessarily lead to a finding of bad faith; and the overall aim of the two-pronged inquiry is to determine whether the purposes of the Code would be furthered or advanced by permitting the Chapter 11 petition to proceed past filing. 19. The objective futility inquiry is designed to insure that there is embodied in the petition “some relation to the statutory objective of resuscitating a financially troubled [debtor].” In re Coastal Cable TV, Inc., 709 F.2d 762, 765 (1st Cir.1983). The criteria for making this determination is whether there is any going concern value to preserve on the part of the debtor and any realistic possibility of an effective reorganization. 20. After applying the foregoing criteria in the present case, the court has concluded that objective futility has been shown in this case. This debtor has no ongoing business to protect and no plans to initiate an ongoing business. There being no ongoing business in existence and none on the horizon, there is no going concern value to preserve. Further, there is no realistic possibility of an effective reorganization because there is nothing to reorganize or resuscitate and no plans for anything to reorganize. There are no jobs to save — save one which is hotly disputed — and no business concept or enterprise for the production of income" }, { "docid": "4595536", "title": "", "text": "cause under Section 1112(b)(4)(H) and (K), the court finds that Clarkson’s case is subject to dismissal under Section 1112 for lack of good faith in its purpose and prosecution. In the seminal case of Carotin Corporation v. Miller, 886 F.2d 693 (4th Cir.1989), at least where a motion to dismiss a voluntary Chapter 11 bankruptcy petition is filed at the very outset of the case on the grounds that the case was not commenced in good faith, the United States Court of Appeals for the Fourth Circuit holds that the movant must demonstrate both an objective futility to the asserted attempt to reorganize and a subjective showing of bad faith as to the intent of the debtor in order to obtain dismissal on the basis of lack of good faith. Id. at 700. Whether such a stringent standard applies to a motion to convert the case to Chapter 7 or appoint a trustee determined by the court over ten months after the date of the petition filing, is perhaps uncertain. As discussed in Colliers, The requirement of objectivity [sic] futility as a prerequisite to dismissal for subjective bad faith may be criticized as imposing a too stringent ground for relief. Absence of a reasonable likelihood of rehabilitation and substantial or continuing losses, as well as failure to confirm a plan within a time fixed by statute or order, and material default or failure to substantially consummate a confirmed plan are enumerated causes for dismissal or conversion to chapter 7 without the necessity of proving subjective bad faith. The effect of adding to the good faith doctrine the element of objective futility that is already covered by section 1112(b) may effectively negate bad faith filing as a basis for dismissal or conversion of the case. However, even if objective futility is required by the Fourth Circuit for dismissal of a case at the threshold of its filing, the presence of bad faith conduct may add substantial weight to the movant’s motion for dismissal for other cause. Without requiring proof of objectivity [sic] futility, bad faith is a basis to appoint a" }, { "docid": "18016755", "title": "", "text": "U.S.S.C.A.N. 5963, 6362. The Bankruptcy Code’s rules of construction, which provide that “include” and “inpluding” are not limiting terms, also support an expansive reading of § 1112(b). See 11 U.S.C. § 102(3). Section 1112(b), by its terms, therefore, does not preclude consideration of unenumerated factors in determining “cause.” We also note the courts of appeals that have considered the issue have held that the absence of good faith constitutes “cause” to dismiss a Chapter 11 petition under § 1112(b). See, e.g., Trident Assocs. Ltd. Partnership v. Metropolitan Life Ins. Co. (In re Trident Assocs. Ltd. Partner ship), 52 F.3d 127, 130 (6th Cir.1995); Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir.1994); Humble Place Joint Venture v. Fory (In re Humble Place Joint Venture), 936 F.2d 814, 816 (5th Cir.1991); First Nat’l Bank of Sioux City v. Kerr (In re Kerr), 908 F.2d 400, 404 (8th Cir.1990); Phoenix Piccadilly, Ltd. v. Life Ins. Co. (In re Phoenix Piccadilly, Ltd.), 849 F.2d 1393, 1394 (11th Cir.1988). In addition, several other courts of appeals have concluded that Chapter 11 imposes a general good faith requirement under which petitions can be dismissed for bad faith. See, e.g., C-TC 9th Ave. Partnership v. Norton Co. (In re C-TC 9th Ave. Partnership), 113 F.3d 1304 (2d Cir.1997); Carolin Corp. v. Miller, 886 F.2d 693, 698 (4th Cir.1989); Connell v. Coastal Cable T.V., Inc. (In re Coastal Cable T.V., Inc.), 709 F.2d 762, 764 (1st Cir.1983) (Breyer, J.). Numerous district and bankruptcy courts have reached the same conclusion under either or both approaches. See Carlos J. Cuevas, Good Faith and Chapter 11: Standard that Should Be Employed to Dismiss Bad Faith Chapter 11 Cases, 60 Tenn. L.Rev. 525 (1993). The “good faith” requirement for Chapter 11 petitioners has strong roots in equity. The court in In re Victory Construction Co., Inc., in first articulating the good faith requirement under the current Bankruptcy Code, highlighted the equitable nature of the doctrine when it explained: Review and analysis of [the bankruptcy laws and relevant cases] disclose a common theme and objective [underlying the reorganization provisions]:" }, { "docid": "23323262", "title": "", "text": "OPINION PHILLIPS, Circuit Judge: Vernon Lee Finney appeals a district court order affirming the denial of his motion to convert his Chapter 7 bankruptcy case to Chapter 11. We affirm, with some modification of the district court’s order remanding to the bankruptcy court. I Finney filed his Chapter 7 petition in January 1991. Alexander P. Smith was appointed Trustee. Finney was uncooperative during the Chapter 7 proceedings. For example, court orders were required to ensure his compliance with certain of the Trustee’s requests. J.A. 5-6 (docket entry nos. 12, 20). Finney also made undisclosed post-petition transfers of real estate with what the bankruptcy court found to be the “intent to hinder, delay and defraud his creditors.” J.A. 84. After the Trustee successfully recovered the transferred properties, Finney moved to dismiss his case. The bankruptcy court denied the motion, J.A. 73, and granted a creditor’s complaint to deny Finney’s discharge due to the bad-faith transfers. J.A. 83. Fin-ney then sought to convert his case to Chapter 11 under 11 U.S.C.A. § 706(a) (1979 & Supp.1992). The bankruptcy court denied that motion as well, “on equitable grounds” and “for good cause shown.” J.A. 91. A hearing was held on each of these motions. J.A. 5-7 (docket entry no. 13, docket entry 10/17/91); J.A. 83. Finney appealed the denial of his § 706(a) motion, and challenged the finding that he had made the real estate transfers in bad faith. The district court found no clear error in the latter finding. Finney v. Smith, 141 B.R. 94, 100 (Bankr.E.D.Va.1992). The court also held as a matter of law that a bankruptcy court may, in its discretion, deny a § 706(a) motion upon finding that immediate reconversion from Chapter 11 to Chapter 7 is appropriate under 11 U.S.C. § 1112(b), as that section was applied in Carolin Corp. v. Miller, 886 F.2d 693, 700-701 (4th Cir.1989). The court then remanded for additional fact-finding to determine whether circumstances justified such reconversion under Carolin. 141 B.R. at 103-104. This appeal followed. II Finney charges error solely in the district court’s conclusion of law, which we review de" }, { "docid": "10749438", "title": "", "text": "15, 2011, the Debtor filed the present appeal to this Court. According to the Appellant, the Bankruptcy Court’s dismissal of the case pursuant to 11 U.S.C. § 1112(b) was clearly erroneous, mainly because: (1) it did not have any evidentia-ry basis for finding that the Debtor itself engaged in fraud, and relatedly did not hold an evidentiary hearing on the issue of the alleged bad faith of the Debtor; (2) it improperly blamed the Debtor for fraud that was committed by prior members of the LLC; and (3) the current owner of the Debtor has clean hands and his troublesome chain of ownership is irrelevant. II. DISCUSSION A. Legal Standard of Review on a Bankruptcy Appeal Federal district courts have jurisdiction to hear appeals from final judgments, orders, and decrees of bankruptcy judges. Fed. R. Bankr.P. 8013. The standard of review in a bankruptcy appeal is plenary. In re MarketXT Holdings Corp., 346 Fed.Appx. 744, 745 (2d Cir.2009). The reviewing court “review[s] the bankruptcy court decision independently, accepting its factual findings unless clearly erroneous, but reviewing its conclusions of law de novo.” Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.2006). With respect to a bankruptcy court’s dismissal of a Chapter 11 case, this is a matter within the discretion of the bankruptcy court. See 11 U.S.C. § 1112. Thus, as a general matter, this discretion will not be set aside by a district court unless there was an abuse of that discretion. See Hall v. Vance, 887 F.2d 1041, 1044 (10th Cir.1989); Adirondack Mines, Inc. v. U.S. Trustee, No. 10 Civ. 411, 2010 WL 4781529, at *2 (N.D.N.Y. Nov. 16, 2010). However, within the specific context of a bad faith dismissal in a bankruptcy case, this court must “review the bankruptcy court’s ultimate finding that the filing was not in good faith as one of fact subject to the clearly erroneous standard.” Carolin Corp. v. Miller, 886 F.2d 693, 702 (4th Cir.1989); see In re Premier Auto. Services, Inc., 492 F.3d 274 (4th Cir.2007) (reviewing bankruptcy court’s ultimate finding that filing was not in good faith as" }, { "docid": "3523026", "title": "", "text": "a criteria for good faith and reinforced its decision in Deans v. O’Donnell, 692 F.2d 968 (4th Cir.1982), that prepetition conduct of the debtor is an element of good faith. 794 F.2d at 152. According to Neufeld, the ultimate purpose of the good faith inquiry is to “determine whether, considering ‘all militating factors,’ there has been ‘an abuse of the provisions, purpose, or spirit’ of Chapter 13 in the proposal or plan.’ ” Id. at 152 (quoting Deans v. O’Donnell, 692 F.2d at 972). The court in Mark, 336 B.R. at 267-68, also utilized the analysis of Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir. 1989), which explored the requirement of good faith in the context of a motion to dismiss a Chapter 11 case brought under Section 1112(b). Although not specifically expressed in the Bankruptcy Code, the Fourth Circuit adopted a good faith filing requirement which “prevents abuse of the bankruptcy process” and “protects the jurisdictional integrity of the bankruptcy courts by rendering their powerful equitable weapons (i.e., avoidance of liens, discharge of debts, marshalling and turnover of assets) available only to those Debtor and creditors with ‘clean hands.’ ” 886 F.2d at 698 (quoting In re Little Creek Development Co., 779 F.2d 1068, 1072 (5th Cir. 1986)). Carolin Corp. holds that a creditor seeking to dismiss a Chapter 11 case for bad faith must prove that objective futility and subjective bad faith were present at the filing. Id. at 701. Unlike Carolin Corp., the burden under Section 362(c)(4) does not rest on the party seeking dismissal as it does in Section 1112(b), but on the party seeking imposition of the stay. Therefore, the movant must prove that objective futility and subjective bad faith were not present at the filing of the current case. Like Neufeld, Carolin also adopted a totality of the circumstances test. 886 F.2d at 701. As to the objective futility component, the court reasoned that the scope of the inquiry is to determine whether there is any “hope of rehabilitation, except according to the debtor’s ‘terminal euphoria.’ ” Id. at 701-02 (quoting In re" }, { "docid": "14603649", "title": "", "text": "faith than to reject a plan for lack of good faith under Section 1325(a). Nevertheless, the bankruptcy court in this case did not make a premature dismissal. Instead, the court conducted an evidentiary hearing and carefully weighed the evidence before dismissing the petition under Section 1307(c). Considering that the totality of circumstances test is designed to give discretion to the bankruptcy judge and considering that the bankruptcy judge in this case carefully examined the facts, we see no need to impose an extraordinary circumstances requirement. Courts have also devised other methods besides requiring extraordinary circumstances in an attempt to limit the harsh remedy of dismissal under Section 1307(c). For example, in Carolin Corp. v. Miller, 886 F.2d 693, 700-01 (4th Cir.1989), the Court of Appeals for the Fourth Circuit held that dismissal of a Chapter 11 petition for lack of good faith is only permissible when the court finds both subjective bad faith and objective futility of any possible reorganization. Love argues that this court should follow this reasoning, thereby requiring that a bankruptcy court find objective futility before dismissing a Chapter 13 petition for lack of good faith. However, Carolin involved a Chapter 11 proceeding, as did the other court of appeals decisions that Love cited for this proposition. See In re Little Creek Dev. Co., 779 F.2d 1068, 1073 (5th Cir.1986); In re Albany Partners, Ltd., 749 F.2d 670, 674 (11th Cir.1984). Granted, Chapter 13 is the individual’s analogue to Chapter ll’s business reorganization provisions. Schaitz, 913 F.2d at 453. Nevertheless, as this court noted in Schaitz, the good faith analyses differ under Chapter 11 and Chapter 13 because businesses and individuals are obviously different. Id. Indeed, as a consequence of this difference between individuals and businesses, objective futility seems meaningless in the Chapter 13 context. Objective futility in the Chapter 11 context focuses on whether a business is capable of surviving after reorganization. Carolin, 886 F.2d at 701. This is not an issue in an individual bankruptcy filed under Chapter 13 because, ordinarily, an individual’s survival is not related to what happens in the Chapter 13 proceeding." }, { "docid": "12178400", "title": "", "text": "over the entities. Movants’ Position on Motions to Dismiss Movants’ Motions to Dismiss are based on § 1112(b). Movants allege bad faith as cause for dismissal. Bad faith is not an enumerated ground under § 1112(b)(4), but courts have found that bad faith is cause that justifies dismissal of a Chapter 11 case. See Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir.1989). Mov-ants argue that the Debtors are using this bankruptcy case to increase the equity position of David Eldredge and Charles Thompson by “strong-arming” Barney Ng and RE Loans into renegotiating the loans. Bad Faith Standard In the Fourth Circuit a party moving for dismissal on the ground of bad faith must prove, by a preponderance of the evidence, both the objective futility of reorganization and subjective bad faith. Id. See also In re Dunes Hotel Associates, 94-75715-JW (Bankr.D.S.C. September 26, 2007) Aff'd Dunes Hotel Assoc. v. Hyatt Corp., 245 B.R. 492 (D.S.C.2000). The Fourth Circuit Court of Appeals recently re-embraced the Carolin factors in Coleman v. Cmty. Trust Bank (In re Coleman), 426 F.3d 719, 728 (4th Cir.2005), stating, “In Carolin ... we held that a Chapter 11 petition may be dismissed for lack of good faith on the part of the petitioner, but to warrant dismissal, ‘both objective futility [of the bankruptcy filing] and subjective bad faith [must] be shown.’ ” Id. (internal citations omitted)[Brackets in original]. Analysis Movants did not offer any witnesses in support of their case. Rather, Movants relied solely on their pleadings and asked the Court to take judicial notice of certain facts. While, as previously discussed, the Court has taken judicial notice of a number of facts and admitted certain exhibits into evidence (some for limited purposes), it does so with reluctance. A party should not shuffle reams of paper and ask the Court to locate and judicially notice all the facts that support the party’s case. First, given the scope of Fed. R.Evid. 201, it would be a rare occurrence indeed if all facts necessary to prove a party’s case were so uncontroverted as to justify judicial notice. More importantly," }, { "docid": "11160248", "title": "", "text": "the nature of the Debtors’ right to convert their case to Chapter 13 and possible re-conversion of the case back to Chapter 7, the Court has found most analogous the decision of the Fourth Circuit Court of Appeals in the case of In re Finney, 992 F.2d 43 (4th Cir.1993). In that case the Chapter 7 debtor was uncooperative with the Trustee and made certain undisclosed post-petition transfers of real property which the bankruptcy court found to have been made with the intent to hinder, delay or defraud his creditors. After the trustee successfully recovered these transfers, the debtor moved to dismiss his case. The bankruptcy court denied the motion to dismiss and sustained a creditor’s complaint objecting to Finney’s discharge on the basis of the bad-faith transfers. At this point the debtor exercised his right under Bankrupt cy Code § 706(a) to convert his case to Chapter 11. The bankruptcy court denied the motion to convert “on equitable grounds” and “for good case shown”. 992 F.2d at 44. On appeal the Fourth Circuit Court stated as follows: Adopting the majority approach, the district court concluded that subjective bad faith, standing alone, is insufficient to abrogate the unqualified § 706(a) right of conversion. [Finney v. Smith,] 141 B.R. [94]at 98 [(E.D.Va.1992)]. We express no opinion on what circumstances, if any, would justify invocation of § 105(a) to deny a § 706(a) motion outright. We agree with the district court, however, that Finney’s misconduct during the Chapter 7 proceedings was insufficiently “egregious” to warrant such extreme action. 141 B.R. at 98. (distinguishing [In re] Colder, 93 B.R. [739]at 740 [(Bankr.D.Utah 1988)]). After recognizing Finney’s right to convert his case from Chapter 7, however, the district court observed that he had no subsequent right to remain in Chapter 11. To the contrary, § 1112(b) allows a bankruptcy court to dismiss a Chapter 11 petition upon finding that Chapter 11 status was sought in subjective bad faith and that it is objectively futile. Carolin, 886 F.2d at 700-701. The court correctly held the Carolin standard to apply whether the remedy sought is dismissal," } ]

[ { "docid": "18045493", "title": "", "text": "914, 255 N.E.2d 154. Metz cannot, as she contends, incur a charge for which she implicitly concedes she was never liable. We find no error in the district court’s conclusion that Metz did not incur more than the amounts that her physicians had agreed ahead of time they would seek from her. II. Metz also contends on appeal that the district court erred by dismissing the corn- plaint with prejudice, thus implicitly denying her request for leave to amend in the event of dismissal. We review the denial of leave to amend for abuse of discretion. Green v. Mattingly, 585 F.3d 97, 104 (2d Cir.2009). Here, Metz sought leave to amend only in the final sentence of her opposition to the motion to dismiss. On appeal, she does not advance new factual allegations that she would make if granted leave to amend, but merely claims in conclusory fashion that had she been permitted to amend, she could have pled allegations sufficient to make out a claim under the district court’s construction of the policy. We find no abuse of discretion in these circumstances. See Pacific Inv. Mgmt. Co. v. Mayer Brown LLP, 603 F.3d 144, 160-61 (2d Cir.2010). Conclusion We have reviewed Metz’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is Affirmed. .The district court granted U.S. Life's motion to dismiss before Metz moved for class certification; certification and any issues raised thereby are not at issue on appeal. . Metz is a resident of California, and U.S. Life is a New York corporation. . The policy, attached as an exhibit to the complaint, states that it was \"issued in and governed by the laws of New York.” . Metz does not allege that any of her doctors actually attempted to charge her more than the amounts permitted in their agreements with Medicare, or that she faced liability at any point for more than the Medicare-approved amounts for any other reason. We need not and do not resolve whether such allegations, if present, would produce a different result." } ]

[ { "docid": "23672743", "title": "", "text": "the market at large, about the valuation and risk exposure of mortgage-related assets. See, e.g., Joint App’x 101 (an April 2007 UBS internal investigation concluded that “valuation uncertainties in [the] IB ... were not sufficiently transparent and inherent risks not adequately analyzed”). However, the Complaint fails to create a strong inference that the UBS defendants recklessly disregarded known facts contradicting their public valuation of their highly-rated RMBS/CDO assets, or that their behavior represented an extreme departure from the ordinary standards of care. While the collapse in the entire sub-prime market revealed UBS’s failure to recognize the vulnerability of all its mortgage-related assets to have been poor judgment, poor business judgment — even if attributable to monetary incentives— does not establish an inference of recklessness that is “cogent and compelling [and] thus strong in light of other explanations.” We do not recognize allegations of “fraud by hindsight.” 2. Tax Fraud Claims We have held that the definition of “materiality” under § 11 of the Securities Act is the same as under § 10(b) of the Exchange Act. Accordingly, we affirm dismissal of the § 10(b) claims based on tax fraud for the reasons stated in Discussion Part B, ante. D. Denial of Leave to Amend Plaintiffs contend, finally, that the District Court erred in dismissing their Amended Complaint with prejudice because they have not yet amended directly in response to specifically identified pleading defects. We review a district court’s denial of leave to amend for abuse of discretion, unless the denial was based on futility, in which case we review that legal conclusion de novo. Plaintiffs have already had one opportunity to amend their complaint. Although that amendment was not in response to a motion to dismiss identifying particular deficiencies in the pleadings, it is unlikely that the deficiencies raised with respect to the Amended Complaint were unforeseen by plaintiffs when they amended. Moreover, plaintiffs have identified no additional facts or legal theories — either on appeal or to the District Court — they might assert if given leave to amend. We conclude that, in the circumstances presented, the District Court" }, { "docid": "1779857", "title": "", "text": "City’s failure to redetermine recipients’ eligibility for MSP benefits was “knowing and/or intentional, and/or [resulted from] reckless disregard and/or deliberate ignorance.” J.A. 67. The district court, however, was not required to credit those legal conclusions. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. While the SAC alleges that the City knew it failed to recertify over one thousand MSP recipients, the allegations do not support a strong inference of fraudulent intent; indeed, the SAC does not plausibly allege that anyone at the City knew, or was reckless in not knowing, that the City was causing false claims to be presented to the federal government on behalf of individuals who were ineligible to receive benefits. Tessler’s MSP claims thus fall short of Rule 9(b) and FCA scienter requirements. III. Denial of Leave to Amend A district court “has broad discretion in determining whether to grant leave to amend” and leave “should generally be denied in instances of futility ... [or] repeated failure to cure deficiencies by amendments previously allowed.” Ladas, 824 F.3d at 28 (citation and quotation marks omitted). We review the district court’s futility finding de novo and its decision to deny leave to amend a complaint for abuse of discretion. Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015). Tessler’s “contention that the District Court abused its discretion in not permitting an amendment that was never requested is frivolous.” Horoshko v. Citibank, N.A., 373 F.3d 248, 249-50 (2d Cir. 2004). Further, Tessler failed “to explain how [he] proposed to amend the complaint to cure its defects.” See F5 Capital v. Pappas, 856 F.3d 61, 90 (2d Cir. 2017). Moreover, Tessler had three opportunities to present his complaint and there is no indication that a third amended complaint would address the aforementioned issues. For these reasons, it was not an abuse of discretion for the district court to deny Tessler an opportunity to further amend. We have considered Tessler’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the district court’s judgment." }, { "docid": "23635969", "title": "", "text": "explain why she was unable to respond to defendants’ motion. She merely made the general assertion that she needed an opportunity for additional discovery to respond to the allegations. Otto claimed that discovery had been deferred until after the class had been certified. Any deferral of discovery, however, was due to plaintiff’s lack of diligence rather than to a court order. Moreover, Otto failed to indicate how production of the documents she sought would have assisted her in resisting summary judgment. The district court’s refusal to grant a continuance for additional discovery was not an abuse of discretion. VII. Otto argues that the court erred in denying her post-trial motions requesting leave to file a second amended complaint. On April 19,1985, Otto filed a motion to reconsider and for leave to file a second amended complaint. On April 26, 1985, the court denied Otto’s request because she failed to attach a second amended complaint to her motion or inform the court how she planned to cure the deficiencies of the first amended complaint. Otto filed a second motion to reconsider and for leave to amend on May 10, 1985. Although she submitted a second amended complaint with her second motion to reconsider, the court found that Otto’s motion to reconsider was untimely and that amendment would be futile. Following an entry of judgment on the dismissal of a complaint by a district court, a plaintiff may amend the complaint under Federal Rule of Civil Procedure 15(a) only after the judgment has been set aside or vacated pursuant to a motion under Rule 59(e) or Rule 60(b) and leave of court to amend has been granted. Twohy v. First National Bank, 758 F.2d 1185, 1196 (7th Cir.1985); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111-12 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758., 84 L.Ed.2d 821 (1985). Although leave to amend shall be freely given when justice so requires, Fed.R.Civ.P. 15(a), the decision to allow amendment after dismissal lies within the sound discretion of the trial court. A motion to amend should state with particularity" }, { "docid": "3428850", "title": "", "text": "for any primary violation of the securities laws, we affirm the district court’s dismissal of his Section 20(a) claim alleging that Merrill Lynch & Co. is liable as a controlling person. See SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1472 (2d Cir.1996). C. Leave To Amend Wilson contends that the district court erred by denying him leave to amend the complaint. “[I]t is within the sound discretion of the district court to grant or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir .2007). We see neither error nor abuse of discretion in the district court’s dismissal of the complaint with prejudice. The complaint dismissed by the district court had already been amended once following the district court’s consolidation order and again in connection with the substitution of lead plaintiffs. When Wilson filed the operative complaint, his counsel was on notice, through Merrill’s prior letters and motion to dismiss, that Merrill believed that its disclosures precluded any claim that its support bidding was manipulative. Yet Wilson never asked the district court for leave to amend the complaint in this or any other respect. “While leave to amend under the Federal Rules of Civil Procedure is ‘freely granted,’ no court can be said to have erred in failing to grant a request that was not made.” Gallop v. Cheney, 642 F.Sd 364, 369 (2d Cir.2011) (citation omitted). For that reason alone, the district court was justified in not providing Wilson with an additional opportunity to replead following its dismissal of his claims. Alternatively, the district court concluded that further amendment of the complaint would be futile. “[W]here amendment would be futile, denial of leave to amend is proper.” In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006). Wilson never indicated to the district court how further amendment would permit him to cure the deficiencies in the complaint. On appeal, he asserts in conclusory terms that “[g]reater detail can be provided” as to certain facts that the district court concluded were not pleaded with specificity. Wilson Br. at 59. Wilson" }, { "docid": "12308725", "title": "", "text": "of unlawful intent required for aiding and abetting liability under the CEA). Plaintiffs’ claim against UBS for unjust enrichment is likewise dismissed for the reasons stated above with respect to the Fixing Members. XIII. Leave to Amend Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave” to a party to amend its complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave may be denied ‘for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.’ ” Techno-Marine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (additional citation omitted)). Ultimately, “the grant or denial of an opportunity to amend is within the discretion of the District Court.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Given the fact that Plaintiffs have already amended their complaint twice and based on the parties’ briefs and the arguments presented during oral argument, it appears that leave to amend may be futile. Nevertheless, Plaintiffs shall have 14 days from the filing of this Opinion to show good cause why leave to file a Third Amended Complaint should be granted. CONCLUSION For the foregoing reasons, UBS’s Motion to DISMISS is GRANTED in its entirety. The Fixing Members’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Fixing Members’ Motion to Dismiss is GRANTED with respect to Plaintiffs’ antitrust claims for price fixing and unlawful restraint of trade from the beginning of the Class Period through December 31, 2006, and from January 1, 2014 through the end of the Class Period. The Fixing Members’ Motion to Dismiss is further GRANTED with respect to Plaintiffs’ manipulative device claims from the beginning of the Class Period through August 15, 2011, and with respect to Plaintiffs’ claims for bid-rigging, and unjust enrichment. The Fixing Members’ Motion to Dismiss is DENIED with respect to Plaintiffs’ antitrust claims for price fixing and unlawful restraint of trade from January 1, 2007 through December" }, { "docid": "6568854", "title": "", "text": "the Court informing them of the deficiencies of the complaint and then an opportunity to cure those deficiencies.” Id. (quoting PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 699 (6th Cir.2004) (internal quotation marks omitted)). Indeed, to permit amendment here might have the perverse effect of turning defense counsel and the Court into plaintiffs’ counsel’s co-counsel, with plaintiffs waiting to see what objections defendants raise and how the Court rules on those objections and then amending their complaint as necessary based on what they learned in the process. Especially in a case of this magnitude, with so much at stake and with enormous expenditure of resources by defendants and the Court, that is an unacceptable way to operate a system of justice. Nor is this a situation, as with pro se parties, where either plaintiffs or their counsel (who will, if they prevail, seek to have their fees paid by defendants) are deserving of any special solicitude. Finally, it must emphasized that essentially none of the allegations plaintiffs put forward with regard to antitrust injury rest on new facts that plaintiffs could not have pleaded before. Indeed, after receiving plaintiffs’ letter of August 1, 2012, we permitted plaintiffs to rely on the Barclays settlement documents in opposing defendants’ motions to dismiss, and, although settlements involving UBS and RBS have since come to light, these settlements do not advance plaintiffs’ antitrust injury argument in any way that the Barclays settlement did not. Plaintiffs’ new antitrust injury allegations mostly involve reframing previously known facts in an attempt to remedy the defects we identified on the fundamental issue of antitrust standing. 2. Plaintiffs’ Proposed Amendments Would Be Futile Even if we did not find plaintiffs’ effort to amend their complaints for a second time with regard to antitrust standing to be wholly unwarranted in these circumstances, we would deny them leave to amend because the proposed amendment would be futile. Specifically, even taking into account plaintiffs’ proposed allegations, plaintiffs do not adequately plead antitrust injury. The issue of antitrust injury was thoroughly examined in the March 29 Order, and we stand by our" }, { "docid": "23451058", "title": "", "text": "abandoned any argument relating to the district court’s grant of summary judgment on the breach of contract claim when he failed to raise this issue on appeal. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir.1986). II. ANALYSIS A. Rose’s Motion to Amend His Original Complaint Rose contends that the district court erred when it denied his motion to amend his original complaint, which prevented him from adding a claim of bad faith against Hartford in this insurance dispute. Rule 16(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.” We review a district court’s order denying a Rule 15(a) motion to amend for an abuse of discretion. General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir.1990). Although a district court has discretion to deny a motion to amend a complaint after an answer has been filed, we have held on several occasions that a district court abuses its discretion when it fails to state a basis for its decision to deny a motion to amend. Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 425 (6th Cir.1999); Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (“[An] 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.”). In the present case, the district court issued a marginal entry order denying Rose’s motion for leave to amend his complaint, but it did not provide a justification or explanation for its denial. Because the district court denied Rose’s motion without explanation, it has clearly abused its discretion in this case. Nevertheless, the district court’s abuse of its discretion could amount to a harmless error if adding Rose’s proposed amendment would have been futile. See, e.g., Jet, Inc., 165 F.3d at 425 (holding that magistrate judge’s denial of motion to" }, { "docid": "5983108", "title": "", "text": "3205062, at *16 (granting leave to amend where additional allegations, proffered in plaintiffs opposition brief, might, if properly plead, raise a strong inference of scienter sufficient to state a Section 10(b) claim). Cf. City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 188 (2d Cir.2014) (denying leave to amend where plaintiffs failed to offer any “additional facts or legal theories — either on appeal or to the District Court — they might assert if given leave to amend”). The Court cautions Plaintiffs that it will only grant a motion to amend the FAC to the extent that they can correct the deficiencies noted in this Opinion. Longtop I, 910 F.Supp.2d at 581. Plaintiffs are directed to file their motion to amend within twenty (20) days of the date of this Opinion, which shall include as an exhibit a copy of the proposed second amended complaint. ABAT I, 2012 WL 3758085, at *24. V. CONCLUSION For the reasons set forth above, the Deloitte Defendants’ motions to dismiss are GRANTED. Plaintiffs’ motion to amend shall be due within twenty (20) days of the date- of this Opinion. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 14, 32. It is SO ORDERED. . The Individual Defendants — Antonio Sena, Justin Tang, Yin Jianping, Richard Xue, and Michael Santos — have not yet been served or appeared in this action. Am. Compl. ¶¶ 222-233. In addition, Plaintiffs have sued twenty unnamed entities: ten John and Jane Does and ten ABC Corporations. Id. ¶¶ 31-38. . The following facts are based on the allegations in the FAC, which the Court accepts as true for purposes of the instant motions. See, e.g., Koch v. Christie's Int’l PLC, 699 F.3d 141, 145 (2d Cir.2012). The Court also considers documents of which it may take judicial notice, including legally required public disclosure documents filed with the SEC; documents incorporated into the FAC by reference; and documents upon which Plaintiffs relied in bringing this suit, which were possessed by and known to Plaintiffs. See Kalyanaram v. Am. Ass’n of" }, { "docid": "15809615", "title": "", "text": "of the bankruptcy estate. Again, UBS overlooks that fact that it had dominion over funds placed in its deposit accounts. Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 21, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995) It was free to loan such funds to other bank customers or make other profitable use of the funds. UBS is correct in arguing that count XII fails to plead fraud with particularity. The commission of fraud is the object of the conspiracy alleged in count XII. The second amended complaint contains a numerous examples of misconduct by Sia and persons and entities acting in concert with him. However, count XII fails to describe in sufficient detail which of the activities were part of the conspiracy and what fraudulent goal was the object of the conspiracy.. The motion to dismiss Count XII will be granted, with leave to amend. V. CONCLUSION A. Defendant Wee Wee merely filed a joinder in the UBS motion to dismiss. No legal memorandum was filed for Wee, and his counsel did not present a separate argument at the hearing on the motion to dismiss. Wee is apparently a banker, but he is not a bank. For present purposes, that distinction is important only as to the UBS argument that it is a mere conduit, and not a transferee, of funds sought to be recovered by the trustee. That argument by UBS is not being accepted. Therefore, the order to be entered concerning this motion to dismiss will be equally applicable to Wee and to UBS. B. Timing Because the motion to dismiss is being granted in part, a third amended complaint will be necessary. The form of the third amended complaint may be shaped by future discovery. Pending before the court is the trustee’s motion to compel discovery. At the conclusion of argument on the motion to dismiss, counsel were advised that the discovery motion would be considered after a ruling on the motion to dismiss. A tentative conclusion is that the discovery motion will be granted. The defenses raised by UBS and Wee require the trustee to" }, { "docid": "515865", "title": "", "text": "proper for the district court to grant summary judgment in favor of May- or Schneider as well as the City. V. Finally, Hammer argues that the district court erred in denying his second motion to amend his complaint to raise new claims of retaliation for whistleblowing activities, in violation of state law, the First Amendment, and 42 U.S.C. § 1983. Hammer argues that the district court should have granted his second motion for leave to amend his complaint in response to the City’s newly pleaded defense of sovereign immunity and that the district court erred in denying leave to amend without explanation. We review the district court’s decision to grant or deny leave to amend for abuse of discretion. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir.1998) (Bell) (citing Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th Cir.1993)) (additional citations omitted). Leave to amend under Federal Rule of Civil Procedure 15(a) “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). There is, however, no absolute right to amend a pleading. Becker v. Univ. of Nebraska, 191 F.3d 904, 908 (8th Cir.1999) (citing Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 224 (8th Cir.1994) {Williams)). Leave should be denied where there are compelling reasons “such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment.” Id. at 907-08 (quoting Brown v. Wallace, 957 F.2d 564, 566 (8th Cir.1992)). Reviewing the record, we find that the district court did not abuse its discretion in denying Hammer’s second motion for leave to amend his complaint. Hammer did not plead, or even mention, the First Amendment in his original complaint or his amended complaint; nor were his First Amendment claims reasonably related to the pleaded allegations such that Defendants would have been placed on notice that Hammer was pursuing such a claim. See Bell, 160 F.3d at 454 (“[W]hen late tendered amendments involve new theories of recovery and impose additional discovery requirements, courts are less likely" }, { "docid": "17082735", "title": "", "text": "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.,” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir.2008) (internal quotation marks omitted). Furthermore, .a district court has no obligation to grant leave to amend sua sponte. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.2011) (“[N]o court can be said to have erred in failing to grant a request [to amend the complaint] that was not made.”); Ariel (UK) Ltd. v. Reuters Grp., PLC, 277 Fed.Appx. 43, 45-46 (2d Cir.2008) (summary order) (district court did not exceed its discretion in not sua sponte granting leave to amend where plaintiff had already amended complaint once and amendment would have been futile); see also Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (leave to amend should be denied as futile where problem with complaint is substantive and better pleading would not cure it). At a pre-motion conference held on January 6, 2012, Defendants sought leave to file a motion to dismiss, and they had previously submitted a letter outlining the grounds on which they intended to move. (Doc. 10.) At the conference, I gave Plaintiffs leave to amend their complaint again, advising them to bolster certain allegations. Following the pre-motion conference, Plaintiffs filed the SAC, which added one plaintiff, four defendants, and five causes of action — including a derivative claim on behalf of nominal defendant NHI. With respect to the previously pleaded claims, Plaintiffs failure to fix deficiencies in its previous pleadings is alone sufficient ground to deny leave to amend sua sponte. See Payne v. Malemathew, No. 09-CV-1634, 2011 WL 3043920, at *5 (S.D.N.Y. July 22, 2011) (“That Plaintiff was provided notice of his pleading deficiencies and the opportunity to cure them is sufficient ground to deny leave to amend sua sponte.”); In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y.2005) (denying leave to amend because “the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure" }, { "docid": "5983107", "title": "", "text": "FAC, or not clearly stated therein, would permit the Court to draw stronger inferences of scienter; for example, Plaintiffs claim that, since filing their amended complaint, they have become aware of communications evidencing that “to the extent DTTC reviewed bank statements at all in the course of its audits, it only reviewed the last page and destroyed all others, thereby ignoring” the fraudulent transactions documented therein. Id. Plaintiffs’ opposition brief also notes that DTTC has admitted to the Company’s new management that it failed to test and confirm CCT HK’s bank records and internal controls as required by the Sarbanes Oxley Act for material subsidiaries. Id. at 10 n. 8. Accordingly, the Court grants Plaintiffs leave to file a motion to amend their complaint pursuant to Rule 15(a). Hanson, 2013 WL 5372749, at *8 (dismissing complaint without prejudice and granting leave to replead where plaintiffs’ opposition brief and oral argument on motion cited facts and “drew inferences that are either absent from the Complaint or are not made clear there”); China Auto. Sys., 2012 WL 3205062, at *16 (granting leave to amend where additional allegations, proffered in plaintiffs opposition brief, might, if properly plead, raise a strong inference of scienter sufficient to state a Section 10(b) claim). Cf. City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 188 (2d Cir.2014) (denying leave to amend where plaintiffs failed to offer any “additional facts or legal theories — either on appeal or to the District Court — they might assert if given leave to amend”). The Court cautions Plaintiffs that it will only grant a motion to amend the FAC to the extent that they can correct the deficiencies noted in this Opinion. Longtop I, 910 F.Supp.2d at 581. Plaintiffs are directed to file their motion to amend within twenty (20) days of the date of this Opinion, which shall include as an exhibit a copy of the proposed second amended complaint. ABAT I, 2012 WL 3758085, at *24. V. CONCLUSION For the reasons set forth above, the Deloitte Defendants’ motions to dismiss are GRANTED. Plaintiffs’ motion" }, { "docid": "23664587", "title": "", "text": "court dismissed Nielsen’s federal claims with prejudice and declined to exercise supplemental jurisdiction over any state law claims. This appeal followed. DISCUSSION “Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir.2000) (internal quotation marks and citation omitted). “A pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010) (internal brackets and quotation marks omitted). However, “leave to amend a complaint may be denied when amendment would be futile.” Tocher v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir.2006). “When the denial of leave to amend is based on ... a determination that amendment would be futile, a reviewing court conducts a de novo review.” Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir.2011). The District Court ruled that amendment was futile because, even considering the facts set forth in the opposition to the motion to dismiss, Nielsen did not adequately allege the mental state element of his deliberate indifference claim. We disagree. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “In addressing the sufficiency of a complaint we accept as true all factual allegations and draw from them all reasonable inferences; but we are not required to credit conclusory allegations or legal conclusions couched as factual 17 allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.2013). Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere con-clusory statements, do not suffice.” Iqbal, 556 U.S. at 678,129 S.Ct. 1937. “The plausibility standard is not akin to a probability requirement....” Id. (internal" }, { "docid": "3929457", "title": "", "text": "for amending pleadings under Rule 15(a)(2).”); Twohy v. First Natl Bank of Chicago, 758 F.2d 1185, 1196 (7th Cir.1985) (“Even after entry of judgment on dismissal, however, assuming the requirements of Rule 59(e) or 60(b) have been fulfilled, the liberal standard of Rule 15(a) still controls and leave to amend shall be freely given when justice so requires.” (alteration omitted) (emphasis added) (internal quotation marks omitted)). In this situation, the liberal amendment policy embodied in Rule 15 continues to govern a court’s decision to dismiss a complaint with prejudice and its consideration of a post-judgment motion to amend. As we stated in Runn-ion: [A] district court cannot nullify the liberal right to amend under Rule 15(a)(2) by entering judgment prematurely at the same time it dismisses the complaint that would be amended. As with prejudgment motions for leave to amend, the district court must still provide some reason — futility, undue delay, undue prejudice, or bad faith — for denying leave to amend, and we will review that decision under the same standard we would otherwise review decisions on Rule 15(a)(2) motions for leave to amend. Runnion, 786 F.3d at 522. We will not reverse a district court’s decision, however, when the court provides a reasonable explanation for why it denied the proposed amendment. See id. at 521-22. A district court acts within its discretion in denying leave to amend, either by dismissing a complaint with prejudice or by denying a post-judgment motion, when the plaintiff fails to demonstrate how the proposed amendment would cure the deficiencies in the prior complaint. See Indep. Tr. Corp., 665 F.3d at 943-44 (holding that the district court did not abuse its discretion by dismissing a complaint with prejudice without allowing an opportunity to amend because the plaintiff “did not offer any meaningful indication of how it would plead differently”); Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir.2009) (holding that the district court did not abuse its discretion by denying a motion for reconsideration requesting leave to amend the complaint “because the plaintiff did not attach an amended complaint and did" }, { "docid": "12291648", "title": "", "text": "Fixing Banks conspiracy—but, these allegations are sufficient at the pleading stage. XIII. Leave to Amend Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave” to a party to amend its complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave may be denied ‘for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.’ ” Techno-Marine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (additional citations omitted)). Ultimately, “the grant or denial of an opportunity to amend is within the discretion of the District Court.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Given the fact that Plaintiffs have already amended their Complaint twice and based on the parties’ briefs and the arguments presented during oral argument, it appears that leave to amend may be futile. Nevertheless, Plaintiffs shall have 14 days from the filing of this Opinion to show good cause why leave to file a Third Amended Complaint should be granted. CONCLUSION For the foregoing reasons, UBS’s Motion to DISMISS is GRANTED in its entirety. The Fixing Banks’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Fixing Banks’ Motion to Dismiss is GRANTED with respect to Plaintiffs’ claim for unlawful restraint of trade from the beginning of the Class Period through December 31, 2005, and from January 1, 2013 through the end of the Class Period. The Fixing Banks’ Motion to Dismiss is further GRANTED with respect to Plaintiffs’ manipulative device claims from the beginning of the Class Period to August 15, 2011, and with respect to Plaintiffs’ claim for unjust enrichment. The Fixing Banks’ Motion to Dismiss is DENIED with respect to Plaintiffs’ antitrust claims for unlawful restraint of trade from January 1, 2006 through December 13, 2012. The Fixing Banks’ Motion to Dismiss is further DENIED with respect to Plaintiffs’ price manipulation claims, Plaintiffs’ manipulative device claims after August 15, 2011, and Plaintiffs’ aiding and abetting" }, { "docid": "12308724", "title": "", "text": "Litig., 502 F.3d at 51 (“[SJimilar pricing can suggest competition at least as plausibly as it can suggest anticompetitive conspiracy.”). In the absence of any other circumstantial evidence or plus factors, Plaintiffs’ allegations that UBS quoted prices that were lower than market averages around the Fixing call are simply inadequate to create a plausible inference of unlawful activity. Plaintiffs’ CEA claims against UBS fail for similar reasons. Both Plaintiffs’ price manipulation and manipulative device claims require allegations that UBS caused (and intended to cause) the artificial price in question. In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173. Because Plaintiffs have failed to allege plausibly that UBS played any part in the Fixing Members’ conspiracy to suppress silver prices, Plaintiffs cannot establish that UBS caused (and intended to cause) the downward price manipulation at issue. Likewise, because Plaintiffs have not alleged any (non-conclusory) facts suggesting that UBS intentionally associated itself with and participated in the Fixing Members’ scheme, their aiding and abetting and principal-agent claims fail as well. See id. at 182 (proof of unlawful intent required for aiding and abetting liability under the CEA). Plaintiffs’ claim against UBS for unjust enrichment is likewise dismissed for the reasons stated above with respect to the Fixing Members. XIII. Leave to Amend Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave” to a party to amend its complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave may be denied ‘for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.’ ” Techno-Marine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (additional citation omitted)). Ultimately, “the grant or denial of an opportunity to amend is within the discretion of the District Court.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Given the fact that Plaintiffs have already amended their complaint twice and based on the parties’ briefs and the arguments presented during oral argument," }, { "docid": "3428851", "title": "", "text": "never asked the district court for leave to amend the complaint in this or any other respect. “While leave to amend under the Federal Rules of Civil Procedure is ‘freely granted,’ no court can be said to have erred in failing to grant a request that was not made.” Gallop v. Cheney, 642 F.Sd 364, 369 (2d Cir.2011) (citation omitted). For that reason alone, the district court was justified in not providing Wilson with an additional opportunity to replead following its dismissal of his claims. Alternatively, the district court concluded that further amendment of the complaint would be futile. “[W]here amendment would be futile, denial of leave to amend is proper.” In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006). Wilson never indicated to the district court how further amendment would permit him to cure the deficiencies in the complaint. On appeal, he asserts in conclusory terms that “[g]reater detail can be provided” as to certain facts that the district court concluded were not pleaded with specificity. Wilson Br. at 59. Wilson has neither provided us with any detail about these proposed new allegations nor explained how they could cure the deficiencies that led to the dismissal of his complaint. In the absence of “some indication as to what appellant[ ] might add to [his] complaint in order to make it viable, we see no reason to grant appellant[ ] relief in this Court which was not requested below.” Nat’l Union of Hosp. & Health Care Emps. v. Carey, 557 F.2d 278, 282 (2d Cir.1977) (citation omitted); see also Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir.2006) (per curiam). CONCLUSION For the foregoing reasons, we hold that Merrill’s disclosures of its bidding practices preclude Wilson’s market manipulation claim. Because Wilson has failed to satisfy the “manipulative acts” element of his Section 10(b) claim, we need not address his arguments directed toward the other elements of this claim or Merrill’s arguments that we should affirm on alternative grounds. Accordingly, the district court’s judgment is AFFIRMED. . A “bid” refers to an auction order placed" }, { "docid": "23672757", "title": "", "text": "material). . See id. (\"No investor would take such statements [about integrity and risk management] seriously in assessing a potential investment, for the simple fact that almost every investment bank makes these statements.”). Plaintiffs also allege that UBS's statement that WMI did not provide services to clients in the United States was materially misleading because, in fact, UBS continued to be engaged in the Tax Fraud — a claim first raised at oral argument in the District Court. As an initial matter, plaintiffs waived this claim by not including it in the Complaint. Although plaintiffs argue that “[t]here is no requirement under the Securities Act that a complaint specifically identify each misrepresentation in the Offering Materials,” Reply Br. 4, in fact that is exactly what Rule 9(b) requires along with an explanation of \"why the statements were fraudulent.” Rombach, 355 F.3d at 172 (internal quotation marks omitted). Moreover, plaintiffs failed to propose, below or on appeal, an amendment to the pleadings that would result in a viable claim. Accordingly, we need not give leave to amend based on some theoretically viable claim. See Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir.2012) (In reviewing a district court's denial of leave to amend on grounds of futility \"we consider the proposed amendments along with the remainder of the complaint” to determine whether the allegations, as amended, plausibly give rise to an entitlement of relief.) (internal quotation marks, citations and alterations omitted). See also Part D, post. . 17 C.F.R. § 229.503(c). . In re Morgan Stanley, 592 F.3d at 365 (internal quotation marks omitted). . Ciresi v. Citicorp, 782 F.Supp. 819, 823 (S.D.N.Y.1991), aff'd without opinion, 956 F.2d 1161 (2d Cir.1992). . Anschutz Corp. v. Merrill Lynch & Co., Inc., 690 F.3d 98, 108 (2d Cir.2012). The PSLRA is codified at 15 U.S.C. § 78u-4(b). . Anschutz, 690 F.3d at 108 (internal quotation marks omitted). . ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). Plaintiffs do not seriously press the argument that defendants had motive and opportunity to commit fraud on appeal." }, { "docid": "17082734", "title": "", "text": "jurisdiction over Plaintiffs’ allegations of misconduct related to inspection of NHI’s books and records. Further, Erwin and Price’s refusal to provide financial information to minority shareholders is redressable through Section 220. Finally, Plaintiffs cannot establish a prima facie tort for the creation of false documents related to the 2009 Stock Option Plan and Intego S.A.’s annual meeting because these alleged falsifications of business records would be illegal — as Plaintiffs admit. (Ps’ Mem. 20 n. 14 (citing N.Y. Penal Law §§ 175.05, 175.10).) Defendants’ Motion to Dismiss is accordingly granted. C. Leave to Amend Leave to amend should be “freely give[n] ... when justice so requires.” Fed.R.Civ.P. 15(a)(2); see Zucker v. Five Towns Coll., No. 09-CV-4884, 2010 WL 3310698, at *3 (E.D.N.Y. Aug. 18, 2010). It is within the discretion of the district court to grant or deny leave to amend, McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007), and “[l]eave to amend, though liberally granted, may properly be denied for: 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.,” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir.2008) (internal quotation marks omitted). Furthermore, .a district court has no obligation to grant leave to amend sua sponte. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.2011) (“[N]o court can be said to have erred in failing to grant a request [to amend the complaint] that was not made.”); Ariel (UK) Ltd. v. Reuters Grp., PLC, 277 Fed.Appx. 43, 45-46 (2d Cir.2008) (summary order) (district court did not exceed its discretion in not sua sponte granting leave to amend where plaintiff had already amended complaint once and amendment would have been futile); see also Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (leave to amend should be denied as futile where problem with complaint is substantive and better pleading would not cure it). At a pre-motion conference held on January 6, 2012, Defendants" }, { "docid": "23672756", "title": "", "text": "in contravention of an affirmative legal disclosure obligation; or (3) a material omission of information that is necessary to prevent existing disclosures from being misleading.” Litwin, 634 F.3d at 715— 16. . In re Morgan Stanley, 592 F.3d at 359 (internal quotation marks omitted). . Compare 15 U.S.C. § 77k(a) (registration statements), with § 771(a)(2) (prospectuses and oral communications); see also In re Morgan Stanley, 592 F.3d at 359. . In re Lehman Bros. Mortgage-Backed Sec. Litig., 650 F.3d 167, 174 (2d Cir.2011). . Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 484 (2d Cir.2011). See also Rom-bach v. Chang, 355 F.3d 164, 171 (2d Cir.2004) (\"[T]he heightened pleading standard of Rule 9(b) applies to Section 11 and Section 12(a)(2) claims insofar as the claims are premised on allegations of fraud.”). . ECA, Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 206 (2d Cir.2009); see also id. (noting that \"the importance of a bank’s reputation for integrity” does not render “a bank’s statements regarding its reputation” material). . See id. (\"No investor would take such statements [about integrity and risk management] seriously in assessing a potential investment, for the simple fact that almost every investment bank makes these statements.”). Plaintiffs also allege that UBS's statement that WMI did not provide services to clients in the United States was materially misleading because, in fact, UBS continued to be engaged in the Tax Fraud — a claim first raised at oral argument in the District Court. As an initial matter, plaintiffs waived this claim by not including it in the Complaint. Although plaintiffs argue that “[t]here is no requirement under the Securities Act that a complaint specifically identify each misrepresentation in the Offering Materials,” Reply Br. 4, in fact that is exactly what Rule 9(b) requires along with an explanation of \"why the statements were fraudulent.” Rombach, 355 F.3d at 172 (internal quotation marks omitted). Moreover, plaintiffs failed to propose, below or on appeal, an amendment to the pleadings that would result in a viable claim. Accordingly, we need not give leave to" } ]

[ { "docid": "10187960", "title": "", "text": "By its order dated March 7, 1991, the district court granted Petra Bank’s motion. A.I. Trade’s motion for reargument was denied by an order dated October 22, 1992. We granted A.I. Trade’s motion for a stay of the vacatur and for an expedited appeal of the district court’s orders and the judgment entered thereon. II. DISCUSSION To survive the motion to dismiss, A.I. Trade was required to make only a prima facie showing that Petra Bank is amenable to personal jurisdiction in New York. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). Eventually personal jurisdiction must be established by a preponderance of the evidence, either at an evidentiary hearing or at trial. But where the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff’s favor, notwithstanding a controverting presentation by the moving party. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); see Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 196-98 (2d Cir.) (discussing procedure for challenging personal jurisdiction), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). A. Personal Jurisdiction Under New York Law Personal jurisdiction over Petra Bank in this diversity action is governed by New York law. The district court rejected each of the three grounds A.I. Trade posited for jurisdiction: (1) transacting business in the state under CPLR 302(a)(1); (2) doing business in the state under CPLR 301; and (3) quasi in rem jurisdiction. See N.Y.Civ.Prac.L. & R. 301, 302 (McKinney 1990). We conclude that jurisdiction exists for this dispute on a fourth ground, raised on appeal, and hold that Petra Bank is amenable to suit under CPLR 302(a)(1) because it contracted to supply services in the state. CPLR 302(a)(1) confers jurisdiction over “any non-domiciliary” who “transacts any business within the state or contracts anywhere to supply goods or services in the state,” so'long as the cause of action arises from that contract. A.I. Trade argues that Petra Bank’s guaranty payable in New York is a contract for services" } ]

[ { "docid": "21853210", "title": "", "text": "new products.” (Id., at 15 (AstraZeneca Annual Report and Form 20-F 2002, at 8).) According to the Annual Report, one of AstraZene-ca PLC’s six key priorities is to “Win in the US” (Id., at 16.) • AstraZeneca PLC’s website also indicates that its “largest market is the US,” (id., at 25), and that AstraZeneca PLC maintains an investor relations office in Wilmington, Delaware. (Id., at 57.) It is undisputed for purposes of this motion that AstraZeneca PLC’s subsidiaries were doing business at the relevant times in this district. ANALYSIS Plaintiffs bear the burden of establishing that the court has jurisdiction over the defendant. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). However, when a motion to dismiss is brought before any discovery has been conducted, only a prima facie showing of personal jurisdiction is required to defeat the motion, Ball v. Metallurgie Hoboken-Overpelt, S.A, 902 F.2d 194, 197 (2d Cir.1990), and plaintiffs may rely on the complaint, affidavits, and other supporting materials to satisfy their burden. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). Such pleadings and affidavits must be construed in the light most favorable to .the plaintiffs, and all doubts must be resolved in plaintiffs’ favor. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). I. Personal Jurisdiction Under the Clayton Act Section 12 of the Clayton Act provides: Any suit, action or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found. 15 U.S.C. § 22. This section thus provides both bases for venue and personal jurisdiction that supplement the general venue and service of process provisions in the United States Code and Federal Rules of Civil Procedure. Although the parties vigorously dispute whether venue under Section 12 must be satisfied before plaintiffs may avail themselves" }, { "docid": "20659826", "title": "", "text": "manufacturer’s product, however substantial, have never made the foreign corporation amenable to suit in this jurisdiction.”). To support the exercise of ju risdiction, the defendant corporation must solicit business in New York in a manner that is “substantial and continuous” and must engage in other activities of substance in the state. Medpay Systems, Inc. v. Medpay USA, LLC, 2007 WL 1100796 at *6 (E.D.N.Y. March 29, 2007); see also Landoil, 918 F.2d at 1043-44. Even construing the facts alleged in the light most favorable to Plaintiff, it is clear that jurisdiction cannot be maintained pursuant to Section 301. Defendants do not maintain a New York office, do not have agents in New York, do not have any employees in New York, nor maintain any New York bank accounts. The court, therefore cannot find that either defendant is “present” within this jurisdiction. While the alleged infringing product was offered for sale in New York stores, these sales— however substantial — do not create personal jurisdiction over Babysport or over Habeeb. This is true even in light of defendant’s alleged solicitation via its website. This solicitation does not amount to conducting business in a manner that is “substantial and continuous” while engaging in other substantive activities in the state. 2. Section 302(a) (1) CPLR Section 302(a)(1) provides for jurisdiction over a nondomicilliary defendant who transacts any business within the state so long as the cause of action arises out of the defendant’s New York transaction. PDK Labs, Inc. v. Fnedlander, 103 F.3d 1105, 1109 (2d Cir.1997). A finding of jurisdiction under Section 302(a)(1) requires a showing that defendant: (1) “transacts any business” in New York and, (2) that the cause of action “arises from” such transaction. Best Van Lines, 490 F.3d at 246-47. When considering whether a defendant “transacted business,” New York courts rely on the constitutional standard set forth by the Supreme Court: “whether the defendant’s conduct constitutes ‘purposeful ] avail[ment]’ ... of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Best Van Lines, 490 F.3d at 246-47 quoting Hanson v." }, { "docid": "19013141", "title": "", "text": "S.Ct. at 1950). Accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010). . Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). . Id. at 1950, Accord Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.2010). . Twombly, 550 U.S. at 564, 127 S.Ct. 1955. . Iqbal, 129 S.Ct. at 1949 (quotation marks omitted). . Id. (quotation marks omitted). . DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir.2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)). . Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006)). Accord Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir.2006). . ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). . Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir.1984). Accord Tamam v. Fransabank Sal, 677 F.Supp.2d 720, 725 (S.D.N.Y.2010) (\"As no discovery has yet taken place, to survive a motion to dismiss the plaintiff must plead factual allegations [that] constitute a prima facie showing of jurisdiction.\") (quotation marks omitted). . Whitaker v. American Telecasting Inc., 261 F.3d 196, 208 (2d Cir.2001) (quotation marks omitted). . See Hsin Ten Enter. USA, Inc. v. Clark Enters., 138 F.Supp.2d 449, 452 (S.D.N.Y.2000). . See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996). . A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). Accord Whitaker, 261 F.3d at 208. . Schenker v. Assicurazioni Genereali S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002). . See CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). . Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 166 (2d Cir.2005). Accord Deutsche Bank Secs., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 (2006) (This is a \"single act statute [and] ... proof of one transaction in New York is sufficient" }, { "docid": "19902023", "title": "", "text": "business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce .... ” N.Y. CPLR § 302(a)(3). To establish a prima facie showing of jurisdiction under CPLR § 302(a)(3), Mir-man must allege facts, which, if ultimately found to be true, would establish that (1) Feiner committed a tortious act outside of New York that serves as the basis for Mirman’s claim; (2) the act caused injury to Mirman in New York; and (3) that Feiner’s activities also satisfy the requirements of either subset (i) or subset (ii) of the statute. See Merck Eprova AG v. Gnosis S.p.A., 2008 WL 5336587, *3, 2008 U.S. Dist. LEXIS 104712, *8 (S.D.N.Y. Dec. 12, 2008). “Courts determining whether there is injury in New York sufficient to warrant § 302(a)(3) jurisdiction must generally apply a situs-of-injury test, which asks them to locate the original event which caused the injury.” Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 209 (2d Cir.2001) (internal citation and.quotation marks deleted). “The situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are felt by the plaintiff.” Id. (internal alteration and quotation marks deleted). “This ‘original event’ is, however, generally distinguished not only from the initial tort but from the final economic injury and the felt consequences of that tort.” Bank Brussels, 171 F.3d at 791. For an example of the pivotal role the “situs of injury” principle may have on the outcome of a case, consider the rationale underlying the holding in Whitaker. Whitaker, a New York resident, claimed that he was retained by Fresno Telsat, Inc. (“FTI”), in its California action against an FTI partner and American Telecasting, Inc. (“ATI”), for breach of a fiduciary duty. During the trial of that action but prior to judgment, FTI retained another attorney for the purpose of negotiating a possible settlement with" }, { "docid": "3822764", "title": "", "text": "prima facie showing of jurisdiction. Matrix cites Schenker v. Assicurazioni Generali S.p.A., Consol, No. 98 Civ. 9186(MBM), 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002), for the proposition that “where ... defendant rebuts plaintiffs’ unsupported allegations with direct, highly specific, testimonial evidence regarding a fact essential to jurisdiction— and plaintiffs do not counter that evidence — the allegation may be deemed refuted.” See Matrix Reply Br. 5 n. 3, 20 (citing Schenker and cases standing for similar propositions); see also Matrix Br. 13. But in a case decided while briefing in this case was underway, the Second Circuit expressly disavowed Schenker and that proposition. See Dorchester, supra, at 86 (“[T]his Court has never adopted that standard ..., and we decline to do so now as it is inconsistent with the framework set forth in Ball [v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194,197 (2d Cir.1990) ]”). In Dorchester, the plaintiff had submitted documents which, if credited as authentic, would have sufficed to establish personal jurisdiction. Id. In response, defendant submitted sworn declarations and supporting documentation that tended to show that the documents relied on by plaintiff were forgeries. Id. The district court concluded that defendant’s submission was direct, highly specific, and that it had not been refuted by plaintiff; it therefore dismissed the complaint pursuant to Rule 12(b)(2). Id. at 83-84. The Second Circuit reversed. Although it agreed that there was “plainly reason to question the authenticity” of plaintiffs documents, the Second Circuit held that the district court erred by resolving that factual dispute, “rather than evaluating, whether [plaintiff] had, through its pleadings and affidavits, made a prima facie showing of personal jurisdiction notwithstanding any controverting presentation by [defendant].” Id. at 86 (citation omitted). That logic is controlling here. BMS has alleged that Matrix has substantial business dealings in New York and derives substantial revenue from those activities. In response, Matrix avers facts that, if credited, would suggest that BMS has overstated the extent of Matrix’s contacts with New York. But, as Dorchester explained, the showing a plaintiff must make to defeat a defendant’s claim that the court lacks personal" }, { "docid": "21530512", "title": "", "text": "F.3d 164, 174 (2d Cir. 2004); see also In re Austl. & N.Z. Banking Grp. Ltd. Sec. bitig., No. 08 Civ. 11278 (DLC), 2009 WL 4823923, at *7 (S.D.N.Y. Dec. 14, 2009). In addition, a plaintiff pleading scienter in a securities fraud action “shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). “For an inference of scienter to be strong, ‘a reasonable person [must] deem [it] cogent and at least as compelling as any opposing inference one could draw from the facts alleged.’ ” ATSI, 493 F.3d at 99 (quoting Tellabs, 551 U.S. at 324, 127 S.Ct. 2499) (alteration and emphasis in original). B. Rule 12(b)(2) “[T]he plaintiff bears the burden of establishing that the court has jurisdiction over the defendant.” DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (citation omitted); accord In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013). “[T]he showing a plaintiff must make to defeat a defendant’s claim that the court lacks personal jurisdiction over it ‘varies depending on the procedural posture of the litigation.’ ” Dorchester, 722 F.3d at 84 (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). Relevant here, before discovery, “a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiffs prima facie showing may be established solely by allegations.” Id. (quoting Ball, 902 F.2d at 197); accord In re Terrorist Attacks, 714 F.3d at 673 (“In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists,” (citation omitted)). A showing of personal jurisdiction “may be made through the plaintiffs ‘own affidavits and supporting materials, containing an averment' of facts that, if credited, would suffice to establish jurisdiction over the defendant.’ ” S. New Eng. Tel. Co. V. Global" }, { "docid": "3822756", "title": "", "text": "finds personal jurisdiction lacking. See BMS Br. 4-21; BMS Reply Br. 1-10. A. Applicable Legal Standard “[T]he plaintiff bears the burden of establishing that the court has jurisdiction over the defendant.” DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir.2001) (citation omitted); accord In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir.2013). “[T]he showing a plaintiff must make to defeat a defendant’s claim that the court lacks personal jurisdiction over it ‘varies depending on the procedural posture of the litigation.’ ” Dorchester Fin. Secs, IniC. v. Banco BRJ, S.A., No. 12-770-cv, 2013 WL 3335784, at *3 (2d Cir. July 3, 2013) (per curiam) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). “Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiffs prima facie showing may be established solely by allegations.” ■ Id.- (quoting Ball, 902 F.2d at 197); accord In re Terrorist Attacks, 714 F.3d at 673 (“In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists.” (citation omitted)). “This showing may be made through the plaintiffs ‘own affidavits and supporting materials, containing an averment of facts that, if credited, would suffice to establish jurisdiction over the defendant.’ ” S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 138 (2d Cir.2010) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001)). The Court “construe[s] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their favor.” Dorchester, supra, at 85 (quoting S. New Eng. Tel, 624 F.3d at 138); accord A.I.Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993) (“[Wjhere the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor, notwithstanding a controverting presentation by the moving party.” (citation omitted)). Nevertheless, the Court" }, { "docid": "20299769", "title": "", "text": "an opportunity following oral argument to make further evidentiary submissions to the Court by April 20, 2009 on the “substantial similarity” issue. Neither side made any additional evidentiary submissions. Moreover, plaintiff agreed with defendants that “[n]o additional discovery is needed on this issue” of substantial similarity. (Letter of Plaintiffs Counsel, dated April 21, 2009, at 1.) However, counsel for plaintiff did submit additional legal arguments in his letter, dated April 21, 2009, further addressing the legal issues surrounding the question of “substantial similarity.” On April 29, 2009, the defendants responded to plaintiffs letter. Accordingly, this matter is fully submitted, and the Court has considered all the evidentiary and legal submissions of the parties. II. Standard ob’ Review A. Rule 12(b)(2) On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). However, prior to discovery, the plaintiff “need only make a prima facie showing of jurisdiction through its own affidavits and supporting materials to defeat the motion.” Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir.1988) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981)). Furthermore, in considering a Rule 12(b)(2) motion, the pleadings and affidavits are to be construed in the light most favorable to plaintiff, the non-moving party, and all doubts are to be resolved in plaintiffs favor. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir.2001). However, a plaintiffs “unsupported allegations” can be rebutted by “direct, highly specific, testimonial evidence[.]” Schenker v. Assicurazioni Genereali, S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788, at *2 (S.D.N.Y. July 15, 2002). A. Rule 12(b)(6) In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc.," }, { "docid": "21942640", "title": "", "text": "refuted.” Schenker v. Assicurazioni Genereali S.p.A, Consol, No. 98 Civ. 9186(MBM), 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002) (citations omitted). Here, plaintiffs have failed to make sufficient jurisdictional allegations to make a prima facie showing of jurisdiction based on Thorkelson’s contacts with New York. See Bradley v. Staubach, No. 03 Civ. 4160(SAS), 2004 WL 830066, at *5 (S.D.N.Y. Apr.13, 2004) (finding no basis for jurisdiction over CEO defendant where complaint contained nothing but concluso-ry allegations as to his acts in an individual capacity); Hsin Ten Enter. USA Inc. v. Clark Enters., 138 F.Supp.2d 449, 456-57 (S.D.N.Y.2000) (finding personal jurisdiction over sole proprietorship but dismissing complaint against individual sole proprietor for insufficient jurisdictional allegations). Second, plaintiffs also fail to establish jurisdiction based on an agency theory. Under this theory, “ ‘plaintiff[s] need not establish a formal agency relationship.’ ” Bradley, 2004 WL 830066, at *4 (quoting Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d 195, 522 N.E.2d 40). “At the heart of this inquiry is whether the out-of-state corporate officers were ‘primary actor[s] in the transaction in New York’ that gave rise to the litigation, and not merely ‘some corporate employee[s] ... who played no part in’ it.” Karabu Corp. v. Gitner, 16 F.Supp.2d 319, 323 (S.D.N.Y.1998) (quoting Retail Software Servs., Inc. v. Lashlee, 854 F.2d 18, 22 (2d Cir.1988)). Plaintiffs have not alleged that Thorkelson was a “primary actor” in the matters in question; control cannot be shown based merely upon a defendant’s title or position. In re Sumitomo Copper Litig., 120 F.Supp.2d 328, 336 (S.D.N.Y.2000) (quoting Karabu, 16 F.Supp.2d at 324); see also Kinetic Instruments, Inc. v. Lares, 802 F.Supp. 976, 984 (S.D.N.Y.1992) (noting that “a corporation is not necessarily the agent of a corporate officer simply by virtue of the officer’s position with the company”). By grouping Thorkelson’s activities in with the alleged conduct of CanadaDrugs, Merck provides no basis for the Court to determine whether Thorkelson was a “primary actor” “orchestrating] the allegedly tortious conduct, or [whether he was] named in the complaint simply because [his] name[ ] appear[s] at the top of [Cana-daDrug]’s masthead.” Karabu," }, { "docid": "20127855", "title": "", "text": "the plaintiffs favor. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). When a federal court sits in diversity, it must “determine whether there is jurisdiction over the defendant under the relevant forum state’s laws.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999). Accordingly, a district court must conduct a two-part inquiry when considering a motion to dismiss for lack of personal jurisdiction. “First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state’s laws; and second, it must assess whether the court’s assertion of jurisdiction under these laws comports with the requirements of due process.” Savin v. Ranier, 898 F.2d 304, 306 (2d Cir.1990). A. Specific Jurisdiction Under New York’s Civil Practice Law Section 302 The portion of New York’s long arm statute allowing for specific jurisdiction over a non-domiciliary provides that “[a]s to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent ... (1) Transacts any business within the state or contracts anywhere to supply goods or services in the state ...” N.Y. Civ. Prac. Law § 302(a)(l)(McKinney 2008). Thus, jurisdiction is proper under section 302(a)(1) when: (1) the defendant has transacted business in New York; and (2) the cause of action arises out of the subject matter of the transacted business. See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir.2007); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986) (requiring “an articulable nexus between the business transacted and the cause of action sued upon”) (citing McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321, 323 (1981)). The following factors should be considered when determining whether a non-domiciliary has transacted business: (1) whether the defendant has an ongoing contractual relationship with a New York corporation; (2) whether the defendant negotiated or executed a contract in New York, and whether the defendant visited New York" }, { "docid": "4748876", "title": "", "text": "on December 8, 1988, raises three grounds for dismissal: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction over defendant, and (3) improper venue. At the hearing, defendant conceded, not surprisingly, that the Court has subject matter jurisdiction over this civil antitrust action. See, e.g., 28 U.S.C. § 1337. In addition, personal jurisdiction is not truly at issue because if venue is proper, defendant would be subject to nationwide service of process under either Bankruptcy Rule 7004(d) or under the Clayton Act, 15 U.S.C. § 22. Accordingly, we turn to the issue of venue. Section 12 of the Clayton Act provides that antitrust actions against corporations “may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business”. 15 U.S.C. § 22. When this test is satisfied, the section allows for nationwide service of process, in effect eliminating any personal jurisdiction inquiry. Defendant is a New York corporation with its principal place of business in the Bronx, New York; under section 12 venue would be proper here only if defendant “transacts business” in Vermont. The test for transaction of business is a practical, common-sense test. Any “substantial character” of business will satisfy the venue provision. Banana Distributors, Inc. v. United Fruit Co., 269 F.2d 790, 794 (2d Cir.1959). Purchases, as well as sales, may suffice, Frederick Cinema Corp. v. Interstate Theatres Corp., 413 F.Supp. 840, 843 (D.D.C.1976), as long as the sum total of activity amounts to “the practical, everyday business or commercial concept of doing or carrying on business ‘of any substantial character’ ”. United States v. Scophony Corp., 333 U.S. 795, 807, 68 S.Ct. 855, 862, 92 L.Ed. 1091 (1948). Fewer local contacts are needed to establish “transacting business” under section 12 than would be needed to establish “doing business” for ordinary jurisdictional purposes. See Friends of Animals, Inc. v. American Veterinary Ass’n, 310 F.Supp. 620, 622 (S.D.N.Y.1970). In this case, plaintiff does not dispute that defendant’s only transactions in Vermont were two isolated purchases from plaintiff, involving less than $5,000" }, { "docid": "19013142", "title": "", "text": "place, to survive a motion to dismiss the plaintiff must plead factual allegations [that] constitute a prima facie showing of jurisdiction.\") (quotation marks omitted). . Whitaker v. American Telecasting Inc., 261 F.3d 196, 208 (2d Cir.2001) (quotation marks omitted). . See Hsin Ten Enter. USA, Inc. v. Clark Enters., 138 F.Supp.2d 449, 452 (S.D.N.Y.2000). . See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996). . A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). Accord Whitaker, 261 F.3d at 208. . Schenker v. Assicurazioni Genereali S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002). . See CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). . Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 166 (2d Cir.2005). Accord Deutsche Bank Secs., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 (2006) (This is a \"single act statute [and] ... proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.”) (quotation marks omitted). . Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir.2007) (quoting McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 229 N.E.2d 604 (1967)). . See CutCo Indus., 806 F.2d at 368. . See Stillwater Mem., at 10-11; Gerova's Memorandum of Law in Support of Its Motion to Dismiss Amended Complaint (\"Gerova Mem,”), at 10-12. . SCP is comprised of SCP, LLC, a Delaware limited liability company, and SCP, Inc., a New York corporation. However, SCP has characterized itself as \"a New York based registered investment advisor,” and has made no statement that Delaware law should apply to the claims against it. Stillwater’s Memorandum of Law in Support of Its Motion to Dismiss (\"Stillwater Mem.”), at 2. As such, the court will apply New York law. See, e.g., Schwimmer v. Allstate Ins." }, { "docid": "20299770", "title": "", "text": "through its own affidavits and supporting materials to defeat the motion.” Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir.1988) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981)). Furthermore, in considering a Rule 12(b)(2) motion, the pleadings and affidavits are to be construed in the light most favorable to plaintiff, the non-moving party, and all doubts are to be resolved in plaintiffs favor. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir.2001). However, a plaintiffs “unsupported allegations” can be rebutted by “direct, highly specific, testimonial evidence[.]” Schenker v. Assicurazioni Genereali, S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788, at *2 (S.D.N.Y. July 15, 2002). A. Rule 12(b)(6) In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). The plaintiff must satisfy “a flexible ‘plausibility standard.’ ” Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. In connection with a motion to dismiss under Rule 12(b)(6), the Court generally may only consider “facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference.” Nechis, 421 F.3d at 100; accord Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991). The Court may only consider a document not appended to the complaint if the document is “incorporated in [the complaint] by reference” or is a document “upon which" }, { "docid": "21942639", "title": "", "text": "¶ 8), it does not allege that Thorkelson has transacted business in New York in his individual capacity. Instead, plaintiffs argue only that Thorkelson, as CEO and founder of CanadaDrugs, “should be presumed to be intimately involved in directing the infringing activities.” (P1.12(b)(2) Opp. Mem. at 5). Plaintiffs also argue that Thorkelson was the registered owner of the site and intentionally induced the company’s infringement. (Id. at 6-7). But plaintiffs fail to allege any specific actions on the part of Thorkelson, and a presumption is not enough. In contrast, Thorkelson submits a declaration in which he admits that the site had been registered in his name, but asserts that the Canada Drugs.com Partnership is the site’s owner. (Thorkel-son Decl. ¶ ll). Although a plaintiffs allegations are ordinarily accepted as true at the pleadings stage, on a motion to dismiss for lack of jurisdiction, where “defendant rebuts plaintiffs’ unsupported allegations with direct, highly specific, testimonial evidence regarding a fact essential to jurisdiction — and plaintiffs do not counter that evidence — the allegation may be deemed refuted.” Schenker v. Assicurazioni Genereali S.p.A, Consol, No. 98 Civ. 9186(MBM), 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002) (citations omitted). Here, plaintiffs have failed to make sufficient jurisdictional allegations to make a prima facie showing of jurisdiction based on Thorkelson’s contacts with New York. See Bradley v. Staubach, No. 03 Civ. 4160(SAS), 2004 WL 830066, at *5 (S.D.N.Y. Apr.13, 2004) (finding no basis for jurisdiction over CEO defendant where complaint contained nothing but concluso-ry allegations as to his acts in an individual capacity); Hsin Ten Enter. USA Inc. v. Clark Enters., 138 F.Supp.2d 449, 456-57 (S.D.N.Y.2000) (finding personal jurisdiction over sole proprietorship but dismissing complaint against individual sole proprietor for insufficient jurisdictional allegations). Second, plaintiffs also fail to establish jurisdiction based on an agency theory. Under this theory, “ ‘plaintiff[s] need not establish a formal agency relationship.’ ” Bradley, 2004 WL 830066, at *4 (quoting Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d 195, 522 N.E.2d 40). “At the heart of this inquiry is whether the out-of-state corporate officers were ‘primary actor[s] in the" }, { "docid": "8829931", "title": "", "text": "Many of the allegations that Global’s complaint asserted against TWA are identical to the allegations now asserted against the TWA officers. On March 24, 1997, I granted TWA’s motion to dismiss Global’s complaint, holding that Global’s breach of contract claim failed to join Karabu, an indispensable party, and that Global’s Sherman and Lanham Act claims failed to state a claim. 960 F.Supp. at 706-OS. Global and Karabu filed the instant action in New York Supreme Court in August 1997, ten months prior to the Missouri court’s holding. Defendants removed the action to federal court pursuant to 28 U.S.C. § 1441(a). Defendants now move to dismiss the Complaint on three grounds: (1) that there is no personal jurisdiction over them in New York, (2) that the present action is barred by res judicata by this Court’s earlier holding in Global Discount Travel Servs., LLC v. Trans World Airlines, Inc., and (3) that plaintiffs have failed to state a cause of action for tortious interference with prospective economic advantage. DISCUSSION I.Personal Jurisdiction Defendants move under Fed. R.Civ.P. 12(b)(2) to dismiss the Complaint against them for lack of personal jurisdiction. A plaintiff bears the ultimate burden of establishing jurisdiction over a defendant by a preponderance of the evidence. See CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). However, where, as here, personal jurisdiction is challenged by a Rule 12(b)(2) motion prior to discovery, a plaintiff may defeat the motion “ ‘by pleading in good faith, see Fed. R. Civ. P. 11, legally sufficient allegations of jurisdiction,’ i.e., by making a ‘prima facie showing’ of jurisdiction.” Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184, 1998 WL 341021, at *2 (2d Cir. Jun.29, 1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). In that regard, all pleadings and affidavits must be construed in the light most favorable to the plaintiff. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir.1997). Personal jurisdiction over a non-domiciliary in a diversity case is determined according to the laws of the state in which the court sits, in" }, { "docid": "22163426", "title": "", "text": "jurisdiction over the defendant when served with a Rule 12(b)(2) motion to dismiss. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). A plaintiff may carry this burden “by pleading in good faith ... legally sufficient allegations of jurisdiction, i.e., by making a ‘prima facie showing’ of jurisdiction.” Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). A plaintiff can make this showing through his “own affidavits and supporting materials[,]” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981), containing “an averment of facts that, if credited ..., would suffice to establish jurisdiction over the defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.8d 560, 567 (2d Cir.1996) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). “[W]here the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor!.]” A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993). In assessing whether personal jurisdiction is authorized, “the court must look first to the long-arm statute of the forum state, in this instance New York.” Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir.1997). “If the exercise of jurisdiction is appropriate under that statute, the court must decide whether such exercise comports with the requisites of due process.” Id. Because we agree with the district court that Whitaker failed to establish injury in New York and, hence, long arm jurisdiction, we do not reach his due process argument. The New York long arm statute authorizes personal jurisdiction over non-domiciliaries under several circumstances, see N.Y.C.P.L.R. § 302(a), including those cases where the non-domiciliary “commits a tortious act [outside] the state causing injury to person and property within the state, [among other requirements].” N.Y.C.P.L.R. § 302(a)(3) (McKinney’s 2001). “[C]ourts determining whether there is injury in New York sufficient to warrant § 302(a)(3) jurisdiction must generally apply a situs-of-injury test, which asks them to locate the ‘original event which" }, { "docid": "3822763", "title": "", "text": "New York. Mukundun Decl. ¶ 3. These are highly relevant factors, see Hoffritz, 763 F.2d at 58, and BMS does not appear to dispute those assertions. However, many of Mukundun’s other assertions are directly contrary to the allegations in the Amended Complaint that establish a prima facie showing of personal jurisdiction. For instance, Mukundun states that Matrix does not actively solicit business in New York and that Matrix does not sell the generic version of Lipitor in New York. Mukundun Decl. ¶¶ 3, 7. He represents that Matrix does not sell any drugs in their finished dose form to New York customers, and that of the approximately 75 active pharmaceutical ingredients sold by Matrix, only one was sold to a New York-based company, and one was sold to a New Jersey-based company with a delivery address in New York. Id. ¶ 4. He represents that Matrix’s sales in New York account for only .05% of Matrix’s annual revenue. Id. ¶ 5. At this initial stage of the proceedings, however, Mukundun’s declaration does not defeat BMS’s prima facie showing of jurisdiction. Matrix cites Schenker v. Assicurazioni Generali S.p.A., Consol, No. 98 Civ. 9186(MBM), 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002), for the proposition that “where ... defendant rebuts plaintiffs’ unsupported allegations with direct, highly specific, testimonial evidence regarding a fact essential to jurisdiction— and plaintiffs do not counter that evidence — the allegation may be deemed refuted.” See Matrix Reply Br. 5 n. 3, 20 (citing Schenker and cases standing for similar propositions); see also Matrix Br. 13. But in a case decided while briefing in this case was underway, the Second Circuit expressly disavowed Schenker and that proposition. See Dorchester, supra, at 86 (“[T]his Court has never adopted that standard ..., and we decline to do so now as it is inconsistent with the framework set forth in Ball [v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194,197 (2d Cir.1990) ]”). In Dorchester, the plaintiff had submitted documents which, if credited as authentic, would have sufficed to establish personal jurisdiction. Id. In response, defendant submitted sworn declarations and supporting documentation" }, { "docid": "824539", "title": "", "text": "the complaint. In the declaration of Kenneth F. McCallion, Esq., which accompanies plaintiffs’ opposition to defendant’s motion, plaintiffs set forth additional allegations they seek to include in a proposed amended complaint. As discussed in greater detail below, it is clear that plaintiffs’ additional allegations, taken together with the allegations of personal jurisdiction in the complaint, do not present a -prima facie case of personal jurisdiction over defendant Buchi AG. Accordingly, the Court denies plaintiffs’ motion to amend the complaint. 1. Subsidiary as Agent of Parent “The presence of the subsidiary alone does not establish the parent’s presence in the state.” Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998). In order to make a prima facie case that a New York subsidiary is an “agent” of a foreign parent corporation, a plaintiff must allege that the subsidiary does all the business that the foreign parent could do were it in New York through its own officials. See Frummer, 19 N.Y.2d at 536-37, 281 N.Y.S.2d 41, 227 N.E.2d 851. “Courts have interpreted this to mean that the agent’s activities in New York must be ‘sufficiently important to the foreign corporation that if it did not have a representative to perform them, the corporation’s own officials would undertake to perform substantially similar services.’ ” Schenker v. Assicurazioni Genereali S.P.A. Consol., No. 98-cv-9186 (MBM), 2002 WL 1560788, at *6 (S.D.N.Y. July 15, 2002) (quoting Gelfand v. Tanner Motor Tours, Ltd., 385 F.2d 116, 121 (2d Cir.1967)). Plaintiffs seek to amend their complaint to allege: “Upon information and belief, Buchi Analytical is doing in the U.S. all the business that Buchi AG could do if its own officials were present in the U.S.” That is simply a legal conclusion couched as fact and thus must be rejected. See Jazini, 148 F.3d at 184 (rejecting allegation that merely restates legal test for finding a subsidiary to be an agent of parent corporation). In addition, plaintiffs would amend their complaint to allege: “Buchi Analytical does not engage in any manufacturing and its entire line of products is manufactured by its parent corporation, Buchi" }, { "docid": "18127430", "title": "", "text": "to be construed in the light most favorable to the plaintiff.” Id. at *4 (quoting DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir.2001)). Quoting from another Southern District of New York case, however, the district court stated that “where a ‘defendant rebuts [a] plaintiff[’s] unsupported allegations with direct, highly specific testimonial evidence regarding a fact essential to jurisdiction — and [the] plaintiff[] do[es] not counter that evidence — the allegation may be deemed refuted.’ ” Id. (alterations in original) (quoting Merck & Co., Inc. v. Mediplan Health Consulting, Inc., 425 F.Supp.2d 402, 420 (S.D.N.Y.2006)). Applying these standards, the district court concluded that BRJ had “offered an overwhelming amount of ‘direct, highly specific testimonial evidence’ ” to show that it had no contacts with the Dorchester and the United States and that the documents submitted by Dorchester were forgeries, “none of which [evidence] Dorchester has sufficiently refuted.” Id. at *5 (quoting Merck, 425 F.Supp.2d at 420). Accordingly, the court held that it lacked personal jurisdiction over BRJ and dismissed the first amended complaint pursuant to Rule 12(b)(2). This appeal followed. DISCUSSION We have long made clear that “[i]n deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion.” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981) (citing cases). Significantly, however, the showing a plaintiff must make to defeat a defendant’s claim that the court lacks personal jurisdiction over it “varies depending on the procedural posture of the litigation.” Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). In Ball, we explained this sliding scale as follows: Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of ju risdiction. At that preliminary stage, the plaintiffs prima facie showing may be established solely by allegations. After discovery," }, { "docid": "665922", "title": "", "text": "conclusions of law will not suffice” to defeat motion to dismiss (internal quotation marks omitted)). I. Federal Antitrust Claims Lime Wire alleges that counter-defendants have conspired to foreclose competition in and monopolize the market for the digital distribution within the United States of copyrighted music over the internet. It seeks treble damages under sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1 and 2, and section 4 of the Clayton Act, 15 U.S.C. § 15. (FAC ¶¶ 93-96.) Counter-defendants raise a number of defenses, including: (1) that Lime Wire lacks standing to prosecute its antitrust counterclaims because it has not suffered antitrust injury and is not a proper antitrust plaintiff, (2) that Lime Wire has failed to define a relevant market, (3) that Lime Wire’s Sherman Act § 1 claim fails because the FAC does not sufficiently allege the existence of a conspiracy, and (4) that Lime Wire’s Sherman Act § 2 claims fail because the FAC erroneously relies on a “shared monopoly” theory of liability. A. Antitrust Standing While Congress intended the antitrust laws to prevent the concentration of market power and protect competition, not every injured plaintiff may seek to recover damages. See Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 534, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (“Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.” (internal quotation marks omitted)). A private plaintiff seeking to recover under the antitrust laws must demonstrate “antitrust standing.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121-22 (2d Cir.2007). To establish antitrust standing, a plaintiff not only must allege injury-in-fact to its “business or property” caused by the antitrust violation, 15 U.S.C. § 15(a), but also must make “a showing of a special kind of ‘antitrust injury/ as well as a showing that the plaintiff is an ‘efficient enforcer’ to assert a private antitrust claim.” Port Dock, 507 F.3d at 121-22. The notion of “antitrust injury” grew from the recognition that a" } ]

[ { "docid": "18673014", "title": "", "text": "RIDOT of the operation of the automatic stay and requested that the suspension be lifted. (See Debtor’s Ex. Nos. 2, 4, and 5.) 5) RIDOT responded, stating that in its opinion the suspension remained in effect until: (1) the underlying judgment debt was discharged; and (2) the Debtor filed proof of financial responsibility (form SR22). (See Division of Motor Vehicle’s letter dated December 2, 1993). 6) The current procedure followed by RI-DOT when a judgment debtor files for relief under the Bankruptcy Code is to continue the suspension until the debt is discharged and the Debtor files proof of financial responsibility. DISCUSSION The Rhode Island statute in question provides: “Suspension for nonpayment of judgment. — The registry upon receipt of a certificate copy of a judgment shall forthwith suspend license and registration and any nonresident’s operating privilege of any person against whom such judgment was rendered, except as hereinafter otherwise provided in this chapter.” R.I.Gen.Laws § 31-32-10. The statute further provides that the suspension shall remain in effect “unless and until every such judgment is stayed, satisfied in full or to the extent hereinafter provided and until the said person gives proof of financial responsibility_” R.I.Gen.Laws § 31-32-14 (emphasis added). Notwithstanding RIDOT’s argument that enforcement of the Rhode Island statute is an exercise of the State’s regulatory or police power, it is clear to this (and most other courts) that such statutes are collection devices provided by the State to assist in the recovery of claims by motor vehicle accident judgment creditors. As such, the automatic stay under 11 U.S.C. § 362(a)(1) bars RI-DOT from enforcing this collection remedy, after the judgment debtor files a petition under the Bankruptcy Code. “[I]f the focus of the police or regulatory power is directed at the debtor’s financial obligations rather than the State’s health and safety concerns, Code Section 362(b)(4) is inapplicable.” Muzio v. Sampson (In re Sampson), 17 B.R. 528, 530 (Bankr.D.Conn.1982). We also conclude, however, that requiring the Debtor to furnish proof oí future financial responsibility as a precondition to lifting the suspension violates neither the automatic stay nor the fresh" } ]

[ { "docid": "10560392", "title": "", "text": "of the bankruptcy proceedings, to return that property to the debtor (in chapter 11 or 13 proceedings) or his trustee (in chapter 7 proceedings). Otherwise, if persons who could make no substantial adverse claim to a debtor’s property in their possession could, without cost to themselves, compel the debtor or his trustee to bring suit as a prerequisite to returning the property, the powers of a bankruptcy court and its officers to collect the estate for the benefit of creditors would be vastly reduced. The general creditors, for whose benefit the return of property is sought, would have needlessly to bear the cost of its return. And those who unjustly retain possession of such property might do so with impunity. Damages Section 362(h) provides, “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” A willful violation of the automatic stay occurs when the creditor acts deliberately with knowledge of the bankruptcy petition. See Aponte v. Aungst (In re Aponte), 82 B.R. 738, 742 (Bankr.E.D.Pa.1988) (quoting Wagner v. Ivory (In re Wagner), 74 B.R. 898, 903 (Bankr.E.D.Pa.1987)). In this case the debtor informed the creditor of the bankruptcy filing and requested turnover, and the creditor refused. The violation of the automatic stay therefore was deliberate and in knowledge of the petition. This finding of a willful violation supports the bankruptcy court’s award of attorneys’ fees. An award of punitive damages under section 362(h) requires not only a willful violation of the automatic stay, but also a finding of “appropriate circumstances.” We recently interpreted this language to mean “egregious, intentional misconduct on the violator’s part.” United States v. Ketelsen (In re Ketelsen), 880 F.2d 990, 993 (8th Cir.1989). We have no trouble finding such conduct in this case. In particular we point to the efforts by creditor’s controlling officer to have the debtor excommunicated from his church. Thus, the creditor not only willfully failed to fulfill its obligations under the code, it brazenly attempted to punish the debtor for pursuing" }, { "docid": "4652801", "title": "", "text": "was made. In any event, a creditor that has repossessed collateral without knowledge of a bankruptcy petition has an affirmative duty to restore the status quo, which in this case would entail return of the Automobile, without the debtor having to seek relief from the bankruptcy court. See, Miller, 10 B.R. at 780, aff'd. 22 B.R. at 481 (D.Md.1982); En-dres, 12 B.R. at 406 (holding that “refusal to return the property upon learning of the proceeding is a willful violation of the stay provisions and may be contemptible”); Wariner, 16 B.R. at 218 (“creditor has an affirmative duty to return the property and restore the status quo once it learns its actions violated the stay”); Behm, 44 B.R. at 813; Clark, 60 B.R. at 14 (“creditor who violates the automatic stay has an affirmative duty to return the property and restore the status quo once it learns its actions violate the stay”); Grosse, 68 B.R. at 850 (“creditor should undo its postpetition collection activities without the debtor having to seek affirmative relief from bankruptcy court”); Contra, In re Abt, 2 B.R. 323 (Bankr.E.D.Pa.1980). The rationale which underpins this sound rule of law was aptly summarized by the district court in its af-firmance of the bankruptcy judge’s imposition of sanctions in Miller [10 B.R. 778]: The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. E.g., In re Elder, 12 B.R. 491, 494 (Bkrtcy.M.D.Ga.1981) (“No action is unacceptable; no action is action to thwart the effectiveness of the automatic stay.”) In recognition of this problem, creditors have been required, when necessary, to take affirmative steps to restore the status quo at the time of the filing of the petition for relief. See In re Norton, 15 B.R. 627 (Bkrtcy.E.D.Pa.1981) (retention of tax refund by I.R.S. held contemptuous); In re Howren, 10 B.R. 303 (Bkrtcy.D.Kan.1981) (withholding by university of debtor’s transcript violated automatic stay); In re Eisenberg, 7 B.R. 683 (Bkrtcy.E.D.N.Y.1980) (refusal by city to withdraw tax lien from tax lien sale contemptuous). To place the onus on the debtor," }, { "docid": "8341652", "title": "", "text": "of Livingston (In re Wariner), 16 B.R. 216, 218 (Bankr.N.D.Tex.1981) (“creditor has an affirmative duty to return the property and restore the status quo once it learns its actions violated the stay”); Matter of Clark, 60 B.R. 13,14 (Bankr.N.D.Ohio 1986) (“creditor who violates the automatic stay has an affirmative duty to return the property and restore the status quo once it learns its actions violate the stay”); Grosse, 68 B.R. at 850 (“creditor should undo its postpetition collection activities without the debtor having to seek affirmative relief from bankruptcy court”). The rationale which underpins this sound rule of law was aptly summarized by the district court in its affirmance of the bankruptcy judge’s imposition of sanctions in Miller 10 B.R. 778: The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. E.g., In re Elder, 12 B.R. 491, 494 (Bankr.M.D.Ga.1981) (“No action is unacceptable; no action is action to thwart the effectiveness of the automatic stay.”) In recognition of this problem, creditors have been required, when necessary, to take affirmative steps to restore the status quo at the time of the filing of the petition for relief. See In re Norton, 15 B.R. 627 (Bankr.E.D.Pa.1981) (retention of tax refund by I.R.S. held contemptuous); In re Howren, 10 B.R. 303 (Bankr.D.Kan.1981) (withholding by university of debtor’s transcript violated automatic stay); In re Eisenberg, 7 B.R. 683 (Bankr.E.D.N.Y.1980) (refusal by city to withdraw tax lien from tax lien sale contemptuous). To place the onus on the debtor, as the Bank would have the Court do, to take affirmative legal steps to recover property seized in violation of the stay would subject the debtor to the financial pressures the automatic stay was designed to temporarily abate, and render the contemplated breathing spell from his creditors illusory. 22 B.R. at 481. Bencharge asserts that because the garnishment was commenced on a prepetition basis, its conduct should not be found to be contemptuous. Inasmuch as it took no affirmative collection action postpetition, Bencharge argues, the imposition of sanctions pursuant to 11 U.S.C. §" }, { "docid": "4652796", "title": "", "text": "be relieved of the financial pressures that drove him into bankruptcy. H.R.Rep. No. 595, 95th Cong. 1st Sess. 340-42 (1977); S.Rep. No. 989, 95th Cong. 2d Sess. 54-55 (1978); reprinted in 1978 U.S.Code Cong. & Admin.News 5787 at 5840 and 6296-97. The consequences of violating the automatic stay provisions of § 362 are set forth in § 362(h), which provides that: “[A]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” See, Archer v. Macomb County Bank, 863 F.2d 497, 499 (6th Cir.1988). Actions by creditors to collect a debt from the debtor, which are taken after the filing of a bankruptcy petition, are void ab initio and of no legal effect. See, e.g., Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306 (11th Cir.1982); In re Eisenberg, 7 B.R. 683 (Bankr.E.D.N.Y.1980). Such actions are invalid even though the creditor had no notice of the bankruptcy filing. In re Miller, 10 B.R. 778 (Bankr.D.Md.1981), aff'd., 22 B.R. 479 (D.Md.1982); In re Stephen W. Grosse, P.C., 68 B.R. 847 (Bankr.E.D.Pa.1987). Lack of notice on the part of the creditor of the bankruptcy case means only that his action was not willful and, therefore, not contemptuous. See, Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); Matter of Endres, 12 B.R. 404 (Bankr.E.D.Wis.1981). The debtor concedes that Cash Cars did not have notice or actual knowledge of the bankruptcy at the time it repossessed the Automobile. However, Cash Cars’ continued retention of the Automobile after it received notice of Holman’s bankruptcy, debtor argues, constitutes a continuing violation of the automatic stay sufficient to hold Cash Cars in contempt. Cash Cars raises a number of arguments in response to the debtor’s assertions. As the discussion below demonstrates, none of the rejoinders made by Cash Cars convince the Court that sanctions should not be imposed. Cash" }, { "docid": "1098744", "title": "", "text": "4, § 4.31; Part 20 § 20.36. The majority of the reported cases on civil contempt for violations of the automatic stay focus on what responsibility the creditor has to prevent legal proceedings and collection proceedings from continuing beyond the filing of the petition. Numerous eases hold that the creditor must take affirmative steps to halt the legal proceedings. In Re Miller, 10 B.R. 778 (Bkrtcy.1981) affirmed 22 B.R. 479 (1982); In Re Baum, 15 B.R. 538 (Bkrtcy.1981); In Re Elder, 12 B.R. 491 (Bkrtcy.1981); In re Shiko, 21 B.R. 203 (Bkrtcy.1982). The absence from § 362 of any express provision that a creditor take affirmative action does not mean that receiving notice of the filing by a debtor of a petition in bankruptcy, a creditor may do nothing. He may, for example, be required to cancel a foreclosure sale, postpone a hearing scheduled in a matter pending against the debtor, dismiss an action filed against the debtor in violation of the stay, or to take other affirmative action, the failure of which would itself constitute a violation or continuing violation of the stay. It is implied in § 362 that a creditor is under an obligation to maintain the status quo as of the moment of the filing of the petition and to take whatever affirmative action is necessary to do so. In Re Miller, supra, p. 780. The court in In Re Shiko, 21 B.R. 203 (Bkrtcy.1982) held a bank in contempt for violation of the automatic stay for repossession of an automobile on May 12, 1981, when the petition had been filed on April 6, 1981, and the bank had received notice of the bankruptcy on May 11,1981. The court found that the bank’s single telephone call to stop the repossession was not a “... sufficient nor a reasonable effort under the circumstances, In Re Shiko, supra, p. 204.” The creditor’s application for a bench warrant on April 22,1982, is clearly a violation of 11 U.S.C. § 362(a). The subsequent efforts made by Grimm Collections, Inc. to abate the issuance of the warrant were not sufficient to" }, { "docid": "8341650", "title": "", "text": "plan, or simply to be relieved of the financial pressures that drove him into bankruptcy. H.R.Rep. No. 595, 95th Cong. 1st Sess. 340-42 (1977); S.Rep. No. 989, 95th Cong. 2d Sess. 54-55 (1978); reprinted in 1978 U.S.Code Cong. & Admin.News 5787 at 5840 and 6296-97. The consequences of violating the automatic stay provisions are set forth in § 362(h), which provides that: “[A]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h); Archer v. Macomb County Bank, 853 F.2d 497, 499 (6th Cir.1988); In re Holman, 92 B.R. 764, 767-68 (Bankr.S.D.Ohio 1988). Actions by creditors to collect a debt from the debtor, which are taken after the filing of a bankruptcy petition, are void ab initio and of no legal effect. See, Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940); Borg-Wamer Acceptance Corp. v. Hall, 685 F.2d 1306 (11th Cir.1982); In re Eisenberg, 7 B.R. 683 (Bankr.E.D.N.Y.1980). Such actions are invalid even though the creditor had no notice of the bankruptcy filing. In re Miller, 10 B.R. 778 (Bankr.D.Md.1981), aff'd., 22 B.R. 479 (D.Md.1982); In re Stephen W. Grosse, P.C., 68 B.R. 847 (Bankr.E.D.Pa.1987). Lack of notice on the part of the creditor of the bankruptcy case means only that his action was not willful and, therefore, not contemptuous. See, Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); Matter of Endres, 12 B.R. 404 (Bankr.E.D.Wis.1981). A creditor who has initiated collection action without knowledge of a bankruptcy petition has an affirmative duty to restore the status quo without the debtor having to seek relief from the Bankruptcy Court. See, Miller, 10 B.R. at 780, aff'd., 22 B.R. 479, 481 (D.Md.1982); Endres, 12 B.R. at 406 (holding that “refusal to return the property upon learning of the proceeding is a willful violation of the stay provisions and may be contemptible”); Wariner v. First State Bank" }, { "docid": "4661892", "title": "", "text": "violation of the automatic stay in this case, therefore, amounts to contempt of court. See In re Wagner, 74 B.R. 898 (Bkrtcy.E.D.Pa.1987) where the Court said: The importance of the automatic stay was well articulated in the Bankruptcy Code’s legislative history: The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all foreclosure action. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove, him into bankruptcy_ Prior to the enactment of 11 U.S.C. § 362(h), parties aggrieved by a violation of the automatic stay ordinarily invoked the remedy of civil contempt. See Kennedy, The Automatic Stay in Bankruptcy, 11 U.Mich.J.L. Reform 177, 259-66 (1977). In order for a party to be held in civil contempt, a court must find that the party violated a specific and definite court order and that the party had knowledge of the order sufficient to put him on notice of the proscribed conduct. ... In the case of In re Grosse, 84 B.R. 377 (Bkrtcy.E.D.Pa.1988), the Court said: Once a creditor has been notified of the bankruptcy filing, the creditor has a duty to restore the status quo, that is, the creditor should undo its postpetition collection activities without the debtor having to seek affirmative relief from bankruptcy court.... Thus, the automatic stay, 11 U.S.C. § 362(a), constitutes an injunction with the force of an order of this court, knowing violation of which gives rise to the remedy of civil contempt.... See also, In re Miller, 22 B.R. 479 (Bkrtcy.D.Md.1982); In re Ellis, 66 B.R. 821 (N.D.Ill.1986); In re Computer Communications, Inc., 824 F.2d 725 (9th Cir.1987). Having found that the actions of Citicorp amount to contempt of court, this Court must next fix the damages. The Debtors ask for actual damages and attorney fees and punitive damages. It must first be noted that § 362(h) of the Code, which allows an individual injured by a wilful violation of the stay to" }, { "docid": "15164238", "title": "", "text": "Civil Practice Law and Rules (“CPLR”), which provides that “[u]pon motion of any party ... the court may direct the sheriff to dispose of, account for, assign, return or release all of any part of any property or debt, or proceeds thereof....” The Practice Commentaries to that section provide that “[t]he [state] court has broad supervisory powers over the sheriff ... [and][i]n an exercise of this supervisory power the court can compel the sheriff to do whatever the sheriff should be doing according to law.” N.Y. Unconsol. Law § 5238 (McKinney 1978) (Practice Commentaries). Alternatively, the Second Circuit noted in In re Crysen/Montenay Energy Co. that the “standard [for awarding damages pursuant to § 362(h) ] encourages would-be violators to obtain declaratory judgments before seeking to vindicate their interests in violation of the automatic stay_” 902 F.2d at 1105 (dicta) (emphasis added). Thus, MIC Leasing could have sought the assistance of this Court in determining its responsibility with regard to the actions of the Sheriff. However, by failing to do so, and by failing to take any other action to prevent the postpetition garnishment of Ms. Sucre’s wages, MIC Leasing is liable for actual damages under § 362(h). MIC Leasing also violated § 362(a) by failing to promptly return to Ms. Sucre the amounts garnished from her postpetition wages after receiving actual notice of her bankruptcy case. Upon learning of a bankruptcy filing, a creditor has an affirmative duty to return the debtor to the status quo position as of the time of the filing of the petition. See In re Dungey, 99 B.R. at 816-17 (finding that the creditor had an affirmative obligation to return wages garnished postpetition in violation of the automatic stay); In re Stephen W. Grosse, P.C., 68 B.R. 847, 850 (Bankr.E.D.Pa.1987) (“[the] creditor should undo its postpetition collection activities without the debtor having to seek affirmative relief from the bankruptcy court”); Matter of Endres, 12 B.R. 404, 406 (Bankr. E.D.Wis.1981) (“refusal to return the property upon learning of the [bankruptcy] proceeding is a willful violation of the stay provisions and may be contemptible”). Despite having" }, { "docid": "4624527", "title": "", "text": "of the Bank’s own collateral security interest therein. As recognized in Miller v. Savings Bank of Baltimore, 22 B.R. 479 (D.Md.1982), The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts.... To place the onus on the debtor, as the Bank would have the Court do, to take affirmative legal steps to recover property seized in violation of the stay would subject the debtor to the financial pressures the automatic stay was designed to temporarily abate, and the contemplated breathing spell from his creditors illusory.... Id. at 481 (citations omitted.) Compare In re Lee, 35 B.R. 452, 458 (Bankr.N.D.Ga.1983) (“When the Bank eliminated the [Chapter 13] debtors access to their current funds, the Bank precipitated an unexpected financial emergency.”). 34. Because the Bank improperly accepted and retained the post-petition rents in violation of the automatic stay and failed to seek relief from the stay, the Bank is liable to Gillis for interest on the sums withheld. See, Miller v. Savings Bank of Baltimore, supra. The rate of interest paid shall be the amount of interest that the Bank paid on customer passbook accounts for the applicable period. Interest shall be due and payable on the amounts collected during the 60-day period from the date of collection through the date upon which the monies were paid over to the Chapter 7 trustee. 35. Gomes has incurred additional attorneys’ fees and costs since the filing of the Application and is entitled to recover such fees and costs, as the court deems reasonable and they shall be paid to Gomes in addition to the amount prayed for in Gomes’ Application. ORDER IT IS HEREBY ORDERED: 1. The Application for Payment of Administrative Expense and Adjudication of Continued Motions is hereby granted in part. 2. The Motion for Instruction and Motion for Interpleader filed by the Bank on June 20, 1985 and August 6, 1985, respectively, are hereby denied insofar as they seek to allow the Bank to retain the post-petition rents. The disposition of the post-petition rents shall be in accordance" }, { "docid": "4652802", "title": "", "text": "Contra, In re Abt, 2 B.R. 323 (Bankr.E.D.Pa.1980). The rationale which underpins this sound rule of law was aptly summarized by the district court in its af-firmance of the bankruptcy judge’s imposition of sanctions in Miller [10 B.R. 778]: The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. E.g., In re Elder, 12 B.R. 491, 494 (Bkrtcy.M.D.Ga.1981) (“No action is unacceptable; no action is action to thwart the effectiveness of the automatic stay.”) In recognition of this problem, creditors have been required, when necessary, to take affirmative steps to restore the status quo at the time of the filing of the petition for relief. See In re Norton, 15 B.R. 627 (Bkrtcy.E.D.Pa.1981) (retention of tax refund by I.R.S. held contemptuous); In re Howren, 10 B.R. 303 (Bkrtcy.D.Kan.1981) (withholding by university of debtor’s transcript violated automatic stay); In re Eisenberg, 7 B.R. 683 (Bkrtcy.E.D.N.Y.1980) (refusal by city to withdraw tax lien from tax lien sale contemptuous). To place the onus on the debtor, as the Bank would have the Court do, to take affirmative legal steps to recover property seized in violation of the stay would subject the debtor to the financial pressures the automatic stay was designed to temporarily abate, and render the contemplated breathing spell from his creditors illusory. 22 B.R. at 481. Thus, Cash Cars’ contention that it had no obligation to return the Automobile until the debtor made an actual demand therefor flies in the face of the authorities outlined above. The remaining arguments advanced by Cash Cars are equally uncom-pelling. Cash Cars suggests that it had the right to retain the Automobile while it attempted to negotiate a reaffirmation agreement with Holman’s counsel. As the case law discussed above indicates, a creditor must act immediately to restore the status quo once it learns that it has violated the automatic stay. To suggest that a creditor may retain collateral in violation of the automatic stay during the course of the reaffirmation negotiation process is ludicrous. Cash Cars also makes much of the fact that" }, { "docid": "485741", "title": "", "text": "estate by preventing one creditor from obtaining payment of its claim to the detriment of other creditors. In re Miller, 200 B.R. 415, 417 (Bankr.M.D.Fla.1996); In re Sky Group Int’l., Inc., 108 B.R. 86, 88-89 (Bankr.W.D.Pa.1989). In fulfilling these policy objectives, bankruptcy courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. Consequently, in recognition of this problem, creditors have been required to take affirmative steps to restore the status quo to the time of the filing of the petition for relief. In re Dungey, 99 B.R. 814, 816 (Bankr.S.D.Ohio 1989). The imposition of such an obligation upon a creditor should not, however, be taken to mean that such a duty is absolute. Instead, bankruptcy courts have generally only imposed an obligation upon a creditor to restore the status quo when the creditor has wrongfully acquired property from the debtor or the debtor’s bankruptcy estate. See, e.g., In re Roberts, 175 B.R. 339 (9th Cir. BAP 1994) (creditor willfully violated automatic stay by continuing to accept payments from employer pursuant to a prepetition garnishment after receiving notice of bankruptcy); Ledford v. Fidelity Financial Servs. (In re Hill), 174 B.R. 949, 954 (Bankr.S.D.Ohio 1994) (retention of automobile casualty insurance proceeds violated the automatic stay); In re Richardson, 135 B.R. 256, 259 (Bankr.E.D.Tex.1992) (failure to return ear after bankruptcy petition violated the stay). As a consequence, this Court declines to adopt an absolute rule that a creditor has an affirmative duty to prevent a judicial official, acting on their behalf, from executing a writ against the debtor personally. Conversely, given the central role that the automatic stay plays in the bankruptcy process, the Court will not automatically shield a creditor from liability merely because a judicial official is the one who executes the judgment on behalf of the creditor. In re Dencklau, 158 B.R. 796, 801 (Bankr.N.D.Iowa 1993) (not ruling out the possibility that a creditor could be held liable for a sheriffs postpetition garnishment of a debtor’s wages). For example, this Court can conceive of situations when it would be" }, { "docid": "2619335", "title": "", "text": "was not carried out in good faith, but was instead an attempt to pressure the debtor into agreeing to pay Mr. Summerlin’s claim. Under these circumstances, Mr. Summerlin will be required to reimburse the debtor $400 for the reasonable legal fees incurred after the pre-trial conference for the debtor’s defense in this section 727 action. The debtor is also entitled, pursuant to § 362(h), to an attorney fee award of $200 for the reasonable legal fees incurred in redressing Mr. Summerlin’s violation of the automatic stay. Section 362(h) states: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. Mr. Summerlin obtained a state court default judgment against Mrs. Outlaw on June 17, 1985, and in September of that year he formally requested execution on that judgment. These actions did not violate the stay because they occurred before the debtor filed her bankruptcy petition on October 1, 1985. However, Mr. Summerlin did violate the stay when, after learning that Mrs. Outlaw had filed for bankruptcy, he did not notify the Wake County Sheriff’s Department that they should not execute on his judgment against Mrs. Outlaw because of the pending bankruptcy. As a result, the debtor went through the distressing experience of having a deputy sheriff appear at her door demanding that she pay the state court judgment. There is no merit to Mr. Summerlin’s argument that it was not his responsibility to put a halt to the execution process which he had set in motion prior to the filing of the bankruptcy petition. Creditor inaction can be as disruptive to a debtor as affirmative collection efforts. In re Miller, 22 B.R. 479, 481 (D.Md.1982). In both In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984) and In re Elder, 12 B.R. 491 (Bankr.M.D.Ga.1981), a creditor took steps to have the debtor’s wages garnished prior to the debt- or’s filing of a bankruptcy petition. In each case, the court held that the creditor’s failure to take the steps necessary to release the" }, { "docid": "485740", "title": "", "text": "ministerial officer of the court, not the agent of the plaintiff, in levying execution and selling the property described in a writ) citing Kelley v. Vincent, 8 Ohio St. 415 (Ohio 1858); Earl’s Lessee v. Shoulder, 6 Ohio 409 (1834). Once more, a court bailiff in Ohio normally does not look to a creditor for compensation as O.R.C. § 1901.32 provides that a bailiff is to be paid directly by the court. Thus, given the lack of an agency relationship in this case, the Court will now proceed to examine whether the Conrad Family had an affirmative duty to take steps to prevent the Van Wert Municipal Court Bailiff from executing upon the writ of restitution issued on their behalf. The purpose of the automatic stay has often been framed as a device that serves two primary bankruptcy policies. First, by halting the collection process, the automatic stay implements the fresh start policy of the Bankruptcy Code by affording the debtor a “breathing spell.” Secondly, the automatic stay permits an orderly liquidation of the bankruptcy estate by preventing one creditor from obtaining payment of its claim to the detriment of other creditors. In re Miller, 200 B.R. 415, 417 (Bankr.M.D.Fla.1996); In re Sky Group Int’l., Inc., 108 B.R. 86, 88-89 (Bankr.W.D.Pa.1989). In fulfilling these policy objectives, bankruptcy courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. Consequently, in recognition of this problem, creditors have been required to take affirmative steps to restore the status quo to the time of the filing of the petition for relief. In re Dungey, 99 B.R. 814, 816 (Bankr.S.D.Ohio 1989). The imposition of such an obligation upon a creditor should not, however, be taken to mean that such a duty is absolute. Instead, bankruptcy courts have generally only imposed an obligation upon a creditor to restore the status quo when the creditor has wrongfully acquired property from the debtor or the debtor’s bankruptcy estate. See, e.g., In re Roberts, 175 B.R. 339 (9th Cir. BAP 1994) (creditor willfully violated automatic stay by continuing" }, { "docid": "18804971", "title": "", "text": "It is painfully clear that the instant defendant acted willfully. He admits that he received a copy of the petition and a call from debtor’s counsel discussing the filing. N.T. at 67. This occurred shortly after the filing. N.T. at 67. Instead of attempting to halt the August 1st landlord/tenant action, defendant allowed it to continue. He has clearly violated § 362(a)(6), which proscribes “... any act to collect, assess or recover a claim against the debtor that arose before the commencement of the case.” Although not argued, we note that defendant cannot hide behind his inactivity. As one court explained, “... creditor inaction can often be as disruptive to the debtor as affirmative collection efforts.” Miller v. Savings Bank of Baltimore (In re Miller), 22 B.R. 479, 481, 7 C.B.C.2d 124 (D.Md.1982). Thus, inaction can be a basis for the imposition of damages under § 362(h). Summerlin v. Outlaw (In re Outlaw), 66 B.R. 418, 419 (Bankr.E.D.N.C.1986). We need not rest our decision on defendant’s inaction, because he acted affirmatively and attempted to \"... obtain possession of the estate” and to “... exercise control over property of the estate ...” in violation of § 362(a)(3). Consider first defendant’s clever attempt to suggest that he did not cut off electric service to debtor. He claims merely to have called the electric company and told them that he would no longer pay for the service. We have no doubt that defendant conveniently neglected to inform PP & L that he was a landlord and that the recipient of this service was a debtor. In effect, the defendant acted the role of the errant utility company in effecting the cancellation of electric service. A utility company could not cancel services under 11 U.S.C. § 366 without affording debtor certain protections. We will not allow defendant to cause deprivation that the Code specifically prohibits. Defendant’s brazen actions continued. Only sporadic and virtually negligible supplies of heat and hot water were available in the eight months subsequent to the filing of this petition. We have no doubt that defendant was, literally and figuratively, trying" }, { "docid": "8341653", "title": "", "text": "been required, when necessary, to take affirmative steps to restore the status quo at the time of the filing of the petition for relief. See In re Norton, 15 B.R. 627 (Bankr.E.D.Pa.1981) (retention of tax refund by I.R.S. held contemptuous); In re Howren, 10 B.R. 303 (Bankr.D.Kan.1981) (withholding by university of debtor’s transcript violated automatic stay); In re Eisenberg, 7 B.R. 683 (Bankr.E.D.N.Y.1980) (refusal by city to withdraw tax lien from tax lien sale contemptuous). To place the onus on the debtor, as the Bank would have the Court do, to take affirmative legal steps to recover property seized in violation of the stay would subject the debtor to the financial pressures the automatic stay was designed to temporarily abate, and render the contemplated breathing spell from his creditors illusory. 22 B.R. at 481. Bencharge asserts that because the garnishment was commenced on a prepetition basis, its conduct should not be found to be contemptuous. Inasmuch as it took no affirmative collection action postpetition, Bencharge argues, the imposition of sanctions pursuant to 11 U.S.C. § 362(h) would not be appropriate. This argument is patently absurd. As the foregoing discussion has demonstrated, a creditor has an affirmative obligation to halt all collection activity and restore the status quo which was altered by its actions upon learning of the filing of a bankruptcy petition. This rule is derived from the plain language of § 362(a)(1) of the Code which stays “the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of a case under this ti-tle_” 11 U.S.C. § 362(a)(1) (emphasis added). Courts construing the foregoing language in the context of a garnishment proceeding have held that “[a]t whatever stage the garnishment is, the creditor’s attorney must do everything he can to halt the proceeding.” O’Connor v. Methodist Hospital of Jonesboro, Inc. (In re O’Connor), 42 B.R. 390, 392 (Bankr.E.D.Ark.1984). The rationale underlying this rule was articulated in Elder v. City of Thomasville, Georgia (In re Elder), 12 B.R. 491, 494-95 (Bankr.M.D.Ga.1981), wherein the bankruptcy" }, { "docid": "2619336", "title": "", "text": "stay when, after learning that Mrs. Outlaw had filed for bankruptcy, he did not notify the Wake County Sheriff’s Department that they should not execute on his judgment against Mrs. Outlaw because of the pending bankruptcy. As a result, the debtor went through the distressing experience of having a deputy sheriff appear at her door demanding that she pay the state court judgment. There is no merit to Mr. Summerlin’s argument that it was not his responsibility to put a halt to the execution process which he had set in motion prior to the filing of the bankruptcy petition. Creditor inaction can be as disruptive to a debtor as affirmative collection efforts. In re Miller, 22 B.R. 479, 481 (D.Md.1982). In both In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984) and In re Elder, 12 B.R. 491 (Bankr.M.D.Ga.1981), a creditor took steps to have the debtor’s wages garnished prior to the debt- or’s filing of a bankruptcy petition. In each case, the court held that the creditor’s failure to take the steps necessary to release the garnishment after the petition had been filed violated the stay and justified an award of attorney’s fees for the expenses incurred in having the violation corrected. In the present case, as in Pody and Elder, it was the responsibility of the creditor, not the debtor or the bankruptcy court, to do what needed to be done to prevent the stay from being violated. Once a creditor has knowledge of a debtor’s bankruptcy, the burden is more appropriately placed on him, rather than on the debtor, to correctly ascertain the scope of the automatic stay. In re Gibson, 16 B.R. 682, 684 (Bankr.S.D.Ohio 1981); In re Reed, 11 B.R. 258, 274 (Bankr.D.Utah 1981). If a creditor is uncertain about the scope of the automatic stay, he takes the risk of being assessed for damages if lie fails to obtain clarification from the bankruptcy court. In re Clark, 49 B.R. 704, 707 (Bankr.D.Guam 1985); In re Pody, 42 B.R. at 573-574. This court can understand Mr. Summer-lin’s frustration concerning this matter. He agreed to co-sign on a" }, { "docid": "23252236", "title": "", "text": "11 U.S.C. § 362 prevents creditors from taking certain actions to improve their positions following the filing of a petition for relief by the debtor, the Bank argues that it does not direct creditors to take any affirmative action. Article 11 U.S.C. § 362 does not expressly provide that a creditor take affirmative action on receiving notice of the filing of a petition in bankruptcy. In contrast, § 542 expressly directs an entity in possession of certain property of the debtor or his estate on the date of a filing of a petition for relief to deliver that property to the Trustee. In addition, a Trustee may invoke § 549 to avoid an unauthorized postpetition transfer and, in certain circumstances, the debtor may do so pursuant to § 522(h). The Bank argues that the Bankruptcy Court erred in holding that it had an “implied duty” under § 362 to return the vehicle in light of the express provisions outlined above for the return of property to the debtor or Trustee. To hold, as the Bank urges, that the remedies provided by those provisions are exclusive would emasculate the protections accorded the debtor under section 362. The automatic stay is intended to give the debt- or a breathing spell from his creditors. By establishing an immediate status quo and preventing the seizure of property from the estate or the continuation of pending creditor actions, it attempts to protect the debt- or from harassment, bother and contact for a reasonable period of time and prevent creditors from engaging in a “race of diligence” which could enable a creditor to obtain more than its equitable share of the debtor’s estate. See H.Rep.No. 95-495, Cong., 1st Sess. 340-2 (1977); S.Rep.No. 95-989, 95 Cong., 2d Sess. 49-51 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787; In re Adana Mortg. Bankers, Inc., 12 B.R. 977 (Bkrtcy.N.D.Ga.1980). The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. E.g., In re Elder, 12 B.R. 491, 494 (Bkrtcy.M.D.Ga.1981) (“No action is unacceptable; no action is action to" }, { "docid": "8341651", "title": "", "text": "683 (Bankr.E.D.N.Y.1980). Such actions are invalid even though the creditor had no notice of the bankruptcy filing. In re Miller, 10 B.R. 778 (Bankr.D.Md.1981), aff'd., 22 B.R. 479 (D.Md.1982); In re Stephen W. Grosse, P.C., 68 B.R. 847 (Bankr.E.D.Pa.1987). Lack of notice on the part of the creditor of the bankruptcy case means only that his action was not willful and, therefore, not contemptuous. See, Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); Matter of Endres, 12 B.R. 404 (Bankr.E.D.Wis.1981). A creditor who has initiated collection action without knowledge of a bankruptcy petition has an affirmative duty to restore the status quo without the debtor having to seek relief from the Bankruptcy Court. See, Miller, 10 B.R. at 780, aff'd., 22 B.R. 479, 481 (D.Md.1982); Endres, 12 B.R. at 406 (holding that “refusal to return the property upon learning of the proceeding is a willful violation of the stay provisions and may be contemptible”); Wariner v. First State Bank of Livingston (In re Wariner), 16 B.R. 216, 218 (Bankr.N.D.Tex.1981) (“creditor has an affirmative duty to return the property and restore the status quo once it learns its actions violated the stay”); Matter of Clark, 60 B.R. 13,14 (Bankr.N.D.Ohio 1986) (“creditor who violates the automatic stay has an affirmative duty to return the property and restore the status quo once it learns its actions violate the stay”); Grosse, 68 B.R. at 850 (“creditor should undo its postpetition collection activities without the debtor having to seek affirmative relief from bankruptcy court”). The rationale which underpins this sound rule of law was aptly summarized by the district court in its affirmance of the bankruptcy judge’s imposition of sanctions in Miller 10 B.R. 778: The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. E.g., In re Elder, 12 B.R. 491, 494 (Bankr.M.D.Ga.1981) (“No action is unacceptable; no action is action to thwart the effectiveness of the automatic stay.”) In recognition of this problem, creditors have" }, { "docid": "18804970", "title": "", "text": "prerequisite to the imposition of sanctions under § 362(h). See e.g., Budget Service Co. v. Better Homes of Virginia, 804 F.2d 289, 293 (4th Cir.1986). On the other hand, all violations of the automatic stay do not trigger the § 362(h) remedy provisions. As the wording of § 362(h) indicates, plaintiff must show a “willful” violation of the stay. We agree with Judge Fox that “... the willfulness requirement refers to the deliberateness of the conduct and the knowledge of the bankruptcy filing, not to a specific intent to violate a court order.” In re Wagner, 74 B.R. 898, 903. See also, Inre H & H Beverage Distributors, Inc. v. Dept. of Rev. of Pa., 79 B.R. 205, 208 (E.D.Pa.1987); In re Santa Rosa Truck Stop, 74 B.R. 641, 643 (Bankr.N.D.Fla.1987). Defendant has argued that his conduct was not willful because his actions were caused by his lack of money. N.T. at 5. This does not refute that he had knowledge of the filing, and defendant has cited no authority in support of his argument. It is painfully clear that the instant defendant acted willfully. He admits that he received a copy of the petition and a call from debtor’s counsel discussing the filing. N.T. at 67. This occurred shortly after the filing. N.T. at 67. Instead of attempting to halt the August 1st landlord/tenant action, defendant allowed it to continue. He has clearly violated § 362(a)(6), which proscribes “... any act to collect, assess or recover a claim against the debtor that arose before the commencement of the case.” Although not argued, we note that defendant cannot hide behind his inactivity. As one court explained, “... creditor inaction can often be as disruptive to the debtor as affirmative collection efforts.” Miller v. Savings Bank of Baltimore (In re Miller), 22 B.R. 479, 481, 7 C.B.C.2d 124 (D.Md.1982). Thus, inaction can be a basis for the imposition of damages under § 362(h). Summerlin v. Outlaw (In re Outlaw), 66 B.R. 418, 419 (Bankr.E.D.N.C.1986). We need not rest our decision on defendant’s inaction, because he acted affirmatively and attempted to \"..." }, { "docid": "4624526", "title": "", "text": "U.S. C.A. § 362 (West 1979) preclude such action. The bank must either apply for permission to move against the collateral or await final disposition of the estate. Id. at 441 (footnotes omitted). 32. Even if the Bank merely retained the subtenants’ rents and did not apply such monies to reduce Gillis’ pre-petition indebtedness, such retention is likewise violative of the automatic stay. If a bank “freezes” or withholds funds subject to a valid setoff, the bank must promptly file a complaint seeking relief from the automatic stay in order to avoid violating the stay. See Kenney's Franchise Corp. v. Central Fidelity Bank N.A., Lynch-burg, 22 B.R. 747, 748-49 (W.D.Va.1982) (Chapter 11 case); Third National Bank in Nashville v. Carpenter (In re Carpen ter), 14 B.R. 405, 407 (Bankr.M.D.Tenn. 1981). 33. It was incumbent upon the Bank to take swift and sure action to ensure that the subtenants’ rents it had collected were made available to Gillis to keep her master lease current for the preservation of the estate, as well as for the protection of the Bank’s own collateral security interest therein. As recognized in Miller v. Savings Bank of Baltimore, 22 B.R. 479 (D.Md.1982), The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts.... To place the onus on the debtor, as the Bank would have the Court do, to take affirmative legal steps to recover property seized in violation of the stay would subject the debtor to the financial pressures the automatic stay was designed to temporarily abate, and the contemplated breathing spell from his creditors illusory.... Id. at 481 (citations omitted.) Compare In re Lee, 35 B.R. 452, 458 (Bankr.N.D.Ga.1983) (“When the Bank eliminated the [Chapter 13] debtors access to their current funds, the Bank precipitated an unexpected financial emergency.”). 34. Because the Bank improperly accepted and retained the post-petition rents in violation of the automatic stay and failed to seek relief from the stay, the Bank is liable to Gillis for interest on the sums withheld. See, Miller v. Savings Bank of Baltimore," } ]

[ { "docid": "17059212", "title": "", "text": "the sandals were freely offered for sale in Mexico for exportation to the United States on the various dates .of exportation, but based his appraisal on the theory that the importer paid more for the merchandise because one of the invoices indicated that it was sold on the basis of a fixed rate of exchange. The court below cited the case of United States v. Alatary Mica Co., 19 C. C. P. A. 30, T. D. 44871, which in turn cited United States v. Irving Massin & Bros., 16 C. C. P. A. 19, T. D. 42714, for the proposition that an appraisement by the United States Customs Court was invalid where the court estimated the value by a method of computation. As we read those cases, however, the decisions held that where there is no such or similar merchandise upon which ap-praisement may be based, it cannot be made by comparison— * * * by taking some proportionate part of the foreign value of comparable goods of different grade or value. There is no suggestion of such a situation here, and the citations I are inapplicable. Likewise cited were the cases of Giovanni Ascione v. United States, 32 Treas. Dec. 725, T. D. 37252 (G. A. 8077); United States v. Jose Ferrari et al., Reap. Dec. 2489, and Collin & Gissel v. United States, Reap. Dec. 4183. From a study of these cases the court came to the following conclusion: It is apparent that the weight of authority is to the effect that the appraiser, cannot convert the currency of the unit price of merchandise in making an appraisal. There is no question but that where the appraisement is made in foreign currency, conversion of that currency into United States dollars for the purpose of calculating duties, etc., is a function of the collector, and it therefore follows that the appraiser cannot find or state the value of the unit of currency in which he appraised the merchandise, for he would then be usurping the function of the collector. It is the appraiser’s duty, however, to determine the currency" } ]

[ { "docid": "3719882", "title": "", "text": "that these goods were imported into this country from England, nor could such a claim be sustained upon the record. For while it is true that they were manufactured in England, yet they had afterwards become the property of the Canadian company, and had been sold as such to the appellants herein. It must therefore be conceded that they were Canadian as distinguished from English importations when they were entered at the ports of this country. In United States v. G. W. Sheldon & Co. (Damon Raike & Co.) 53 Treas. Dec. 34, T. D. 42541, the court stated: Merchandise imported from one country, being the growth, production, or manufacture of another country, must be appraised at its value in the principal markets of the country from which immediately imported, unless it is shown that it was destined for the United States at the time of original shipment without any contingency of diversion. In. the case of United States v. Canadian National Railways, 11 Cust. Ct. 365, Reap. Dec. 5901, certain linen tableware had been manufactured in Belfast, Ireland, for a Canadian firm in fulfillment of a contract to supply table linen for the Canadian National Railways. The linens were crested with the maple-leaf design of the ultimate consumer. Upon importation of the linens into the United States, the appraiser determined that there was no statutory foreign or export value, nor United States value, and that the linens should be appraised upon the basis of the cost of production. The nearest he could estimate such cost of production was the price in Montreal. Therefore, he appraised the merchandise at the invoiced and entered value. The collector appealed for a reappraisement, and the Government attempted to establish a foreign value in Canada, which it failed to do. The court held as to the cost of production that the value adopted by the appraiser, in the absence of any other evidence of value, was presumptively correct. In United States v. H. S. Dorf & Co., Inc., a/c Joseph H. Meyer Bros., 30 Cust. Ct. 664, A. R. D. 28, certain glass rods" }, { "docid": "20749499", "title": "", "text": "in assessing duties and has no application to a reappraisement proceeding. The second motion is therefore denied. Other cases wherein the court took jurisdiction and appraised merchandise upon which the appraiser did not advance the value higher than the entered value are as follows: Maillard & Schmiedell v. United States, Reap. Dec. 3766, 68 Treas. Dec. 1459; F. W. Myers & Co., Inc. v. United States, Reap. Dec. 3939, 70 Treas. Dec. 1267; Eisenstadt Manufacturing Co. v. United States, Reap. Dec. 3972, 70 Treas. Dec. 1316; Nippon Import & Trading Co. v. United States, Reap. Dec. 3977, 70 Treas. Dec. 1337; Sears, Roebuck & Co. v. United States, Reap. Dec. 4112, 72 Treas. Dec. 1066; Pfaltz & Bauer v. United States, Reap. Dec. 4323, 73 Treas. Dec. 1584; Julia H. Daube v. United States, Reap. Dec. 4111, 72 Treas. Dec. 1065; T. E. Ash et al. v. United States, Reap. Dec. 4327, 73 Treas. Dec. 1589, affirmed by Division One, Reap. Dec. 4601, 2 Cust. Ct. 1016; Bullocks, Inc. v. United States, Reap. Dec. 4400, 1 Cust. Ct. 629; Mitsubishi Shoji Kaisha, Ltd. v. United States, Reap. Dec. 4444, 1 Cust. Ct. 728, affirmed on question of jurisdiction by Division One, Reap. Dec. 4570, 2 Cust. Ct. 935; Frank P. Dow v. United States, Reap. Dec. 4539, 2 Cust. Ct. 885, affirmed by Division Two, Reap. Dec. 4624, 3 Cust. Ct. 528; Arthur J. Fritz v. United States, Reap. Dec. 4628, 3 Cust. Ct. 541. Every judge in this court participated in one or more of those decisions either as a single judge or in the decision of the Appellate Division on an application for review. Furthermore, in some of the cases counsel for the Government made a motion to dismiss on the ground that an importer could not appeal from his own valuation on entry, which motion was dismissed. In spite of this imposing array of authorities, counsel for the Government moved to dismiss the appeal in this case upon the authority of George S. Bush Co. v. United States, supra. An examination of that decision indicates that the" }, { "docid": "18995511", "title": "", "text": "refund should have been authorized pursuant to section 563 of the Tariff Act of 1930, as amended; (2) that the liquidation is illegal, null, and void because the claim for a refund was disallowed; and (3) that in disallowing the claim, the collector illegally exercised the statutory function of the Secretary of the Treasury as provided in section 563 of the Tariff Act of 1930, as amended, and failed to comply with mandatory provisions of the customs regulations and the Customs Manual. Section 563 (a), supra, provides that an allowance for a loss such as that alleged herein may be made by the Secretary of the Treasury, and that the “decision of the Secretary of the Treasury as to the abatement or refund of the duties on any such merchandise shall be final and conclusive upon all persons,” except that in certain cases involving less than $25 the Secretary may provide for such abatement or refund by collectors of customs, in which case the decision of the collector shall be final and conclusive on all persons. It is clear, therefore, that this court has no authority to grant or disallow an abatement or refund of duties under the circumstances set forth in section 563 (a) and has no authority to review the decision of the Secretary of tbe Treasury, or, in cases involving less tban $25, the collector. T. D. Downing Co. v. United States, 73 Treas. Dec. 406, T. D. 49441, rehearing denied, 73 Treas. Dec. 1324, Abstract 38855; McKesson & Robbins v. United States, 13 Cust. Ct. 290, Abstract 49737. The first and second claims in the instant case are to the effect that a refund should have been authorized under the circumstances alleged and that the liquidation is illegal because the claim for a refund was disallowed. Since this court has no jurisdiction to grant or disallow a refund or to review a proper decision granting or disallowing a refund under the circumstances herein alleged, plaintiff’s first and second claims must be dismissed. The defendant’s motion to dismiss the protest is granted to that extent. The third" }, { "docid": "20749500", "title": "", "text": "1 Cust. Ct. 629; Mitsubishi Shoji Kaisha, Ltd. v. United States, Reap. Dec. 4444, 1 Cust. Ct. 728, affirmed on question of jurisdiction by Division One, Reap. Dec. 4570, 2 Cust. Ct. 935; Frank P. Dow v. United States, Reap. Dec. 4539, 2 Cust. Ct. 885, affirmed by Division Two, Reap. Dec. 4624, 3 Cust. Ct. 528; Arthur J. Fritz v. United States, Reap. Dec. 4628, 3 Cust. Ct. 541. Every judge in this court participated in one or more of those decisions either as a single judge or in the decision of the Appellate Division on an application for review. Furthermore, in some of the cases counsel for the Government made a motion to dismiss on the ground that an importer could not appeal from his own valuation on entry, which motion was dismissed. In spite of this imposing array of authorities, counsel for the Government moved to dismiss the appeal in this case upon the authority of George S. Bush Co. v. United States, supra. An examination of that decision indicates that the same question involved in the motion to dismiss in the instant case was not raised in that case, wherein counsel for the Government moved to dismiss the appeal because it was not filed within the statutory time. The importer claimed that as the collector did not give him notice of appraisement he was entitled to file his appeal within the statutory time after liquidation because the liquidation gave him his first notice of appraisement. It is interesting to note the contention of the Government in that case, as reported in the court’s opinion, as follows: The defendant contends that it is the obligation of the importer to be diligent to the end that he shall learn when an appraisement shall have been made and that in such a case as we have before us he should have made his appeal to reappraisement within thirty days after said appraisement. Under the Government’s contention in that case, as above indicated, the appeal in this case would be valid because here it is not contended that the plaintiff" }, { "docid": "17038652", "title": "", "text": "purposes, the disappearance of the Republic of Austria as an independent state and its. incorporation in the territory of the German Government must be accepted as. a fact. Doubtless in view of this information the appraiser found it necessary to appraise the merchandise (which was exported in May 1938) in German reichsmarks which, it is fair to assume, became the prevailing currency with the “disappearance of the Republic of Austria”1 as above set forth. In such circumstances it would have been inappropriate for the appraiser to attempt to find a value for the merchandise in Austrian schillings, purporting to be the currency of the-country of exportation, when as a matter of fact Austria had, prior-to the date of exportation, disappeared “for all practical purposes.” We see no reason for disregarding the express statements on the-invoices that the merchandise was “appraised in German Reichs-marks.” The examiner’s red-inlc notations upon the invoices were- apparently adopted in their entirety by the appraiser, as is indicated by him on the summary sheets attached to the invoices, and illustrate some of the “reasonable ways and means” employed by him in arriving at his appraised values (Sec. 500 (a) (1), Tariff Act of 1930). And while he did not specifically state the exact number of reichsmarks per unit of appraisement, nevertheless, he did give sufficient information upon which the collector in due course could proceed to convert the currency \"For the purpose of the assessment and collection of duties,” pursuant to section 522 of the Tariff Act of 1930. Note Collin & Gissel v. United States, 71 Treas. Dec. 1227, Reap. Dec. 4004, affirmed in 72 Treas. Dec. 1210,. Reap. Dec. 4183, and United States v. Sontag’s Shoe Stores, 14 Cust. Ct. 314, Reap. Dec. 6091, decided February 1, 1945, reversing Reap. Dec. 5797. The action of the appraiser upon the summary sheets attached to the invoices is his seal of approval of the red-ink notations on the invoices. Consequently, there would seem to be no justification in fact or in law for dividing the red-ink notations into two separate parts, treating one part as the" }, { "docid": "20749498", "title": "", "text": "reappraisement because the entered value and appraised value are the same. Also I see nothing in the act that would forbid the collector from taking an appeal to reappraisement even though the appraised value was higher than the entered value. It is clear from reading the record in this case that the inaccurate description of the merchandise of this importation appearing in the invoice was the sole cause of the importer entering his merchandise at the price he did, but an incorrect invoice does not deprive the importer of his right to appeal to reappraisement. # # * * % * s}: I am of opinion that the importer in the present case had a perfect right to execute an appeal to reappraisement and the motion to dismiss on the first ground stated is hereby denied. The ground stated for dismissal on the second motion, in my judgment, has no application to reappraisement proceedings at all. Subsection (a) of section 503, Tariff Act of 1930, pertains to a subsequent action by the collector of customs in assessing duties and has no application to a reappraisement proceeding. The second motion is therefore denied. Other cases wherein the court took jurisdiction and appraised merchandise upon which the appraiser did not advance the value higher than the entered value are as follows: Maillard & Schmiedell v. United States, Reap. Dec. 3766, 68 Treas. Dec. 1459; F. W. Myers & Co., Inc. v. United States, Reap. Dec. 3939, 70 Treas. Dec. 1267; Eisenstadt Manufacturing Co. v. United States, Reap. Dec. 3972, 70 Treas. Dec. 1316; Nippon Import & Trading Co. v. United States, Reap. Dec. 3977, 70 Treas. Dec. 1337; Sears, Roebuck & Co. v. United States, Reap. Dec. 4112, 72 Treas. Dec. 1066; Pfaltz & Bauer v. United States, Reap. Dec. 4323, 73 Treas. Dec. 1584; Julia H. Daube v. United States, Reap. Dec. 4111, 72 Treas. Dec. 1065; T. E. Ash et al. v. United States, Reap. Dec. 4327, 73 Treas. Dec. 1589, affirmed by Division One, Reap. Dec. 4601, 2 Cust. Ct. 1016; Bullocks, Inc. v. United States, Reap. Dec. 4400," }, { "docid": "22713527", "title": "", "text": "determination? Section 501 of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, provides:' * * * The decision of the appraiser shall be final and conclusive upon all parties unless a written appeal for a reappraisement is filed with or mailed to the United States Customs Court by the collector within sixty days after the date of the appraiser’s report, or filed by the consignee or his agent with the collector within thirty days after the date of personal delivery, or if mailed the date of mailing of written notice of appraisement to the consignee, his agent, or his-attorney. * * * Thus an orderly process has been provided for challenging the-appraiser’s action. Neither party may take it upon himself to-declare the appraisement illegal or void. That is a matter for the courts. Appellant has cited many cases in which the legality of appraisements has been involved, but in all of them it was not the-collector but the court which determined the question. United States v. Passavant, 169 U. S. 16; United States v. F. W. Woolworth Co., 22. C. C. P. A. 184, T. D. 47126; United States v. V. W. Davis, Sinai Kosher Sausage Factory, 20 C. C. P. A. 305, T. D. 46087; United States v. Gilson Bros., 20 C. C. P. A. 117, T. D. 45753; United States v. William Prym of America (Inc.), 17 C. C. P. A. 180, T. D. 43475; United States v. Tampa Box Co., 15 Ct. Cust. Appls. 360, T. D. 42561; Klingerit, Inc. v. United States, 14 Cust. Ct. 435, Reap. Dec. 6159; United States v. Sontag’s Shoe Stores, 14 Cust. Ct. 314, Reap. Dec. 6091; Mitsubishi Shoji Kaisha, Ltd. v. United States, 2 Cust. Ct. 935, Reap. Dec. 4570; Independent Forwarding Co. (Inc.) v. United States, 60 Treas. Dec. 757, T. D. 45237, decided on rehearing in 61 Treas. Dec. 1634, Abstract 20023; United States v. Alex. Murphy & Co., 55 Treas. Dec. 273, T. D. 43210. We know of no case, nor has any been drawn to our attention, which holds that" }, { "docid": "19000046", "title": "", "text": "importer was not obliged to file the certificate of exportation because the Government’s records of export had been destroyed and, further, because of the fact that the merchandise was reimported at the port of exportation. Counsel for the plaintiff contends that the only point at issue, therefore, is whether there has been a satisfactory identification of the 10 rolls of press cloth in question. In that respect, counsel for plaintiff makes frequent reference to the collector’s acceptance of 10 rolls of the merchandise imported as being of American origin and his waiver of the evidence of exportation thereon and his allowing exemption from duty. Such action of the collector as to the 10 rolls cannot be regarded as sufficient to allow an exemption from duty upon the remainder of the goods, even though the evidence record of exportation is the same in both instances. Whether or not the collector abused the discretion granted him in the statute, in granting an exemption from duty respecting such 10 rolls, is not here before us and no opinion will be expressed thereon. Counsel for the plaintiff relies upon the cases of Pickfords Colonial, Inc. v. United States, 60 Treas. Dec. 1451, Abstract 18266; United States v. Saunders, 8 Ct. Cust. Appls. 82, T. D. 37200; Pensick & Gordon v. United States, 8 Cust. Ct. 518, Abstract 47186; Union Oil Co. v. United States, 65 Treas. Dec. 1455, Abstract 27727; Minneapolis Barrel & Bag Co. v. United States, 51 Treas. Dec. 187, T. D. 42006; United States v. Coastwise Steamship & Barge Co., 9 Ct. Cust. Appls. 216, T. D. 38047; and Fairbanks Morse & Co. v. United States, 69 Treas. Dec. 513, T. D. 48217. Tbe cases of Pickfords Colonial, Inc., and Union Oil Co., before this court, and the Saunders case, before the appellate court, involved goods exported and returned through the same port where the identity of the goods exported and returned was established, and the certificate of export was held not necessary in view of substitute evidence of the facts therein required. In the Minneapolis Barrel & Bag Co. case," }, { "docid": "17038653", "title": "", "text": "of the “reasonable ways and means” employed by him in arriving at his appraised values (Sec. 500 (a) (1), Tariff Act of 1930). And while he did not specifically state the exact number of reichsmarks per unit of appraisement, nevertheless, he did give sufficient information upon which the collector in due course could proceed to convert the currency \"For the purpose of the assessment and collection of duties,” pursuant to section 522 of the Tariff Act of 1930. Note Collin & Gissel v. United States, 71 Treas. Dec. 1227, Reap. Dec. 4004, affirmed in 72 Treas. Dec. 1210,. Reap. Dec. 4183, and United States v. Sontag’s Shoe Stores, 14 Cust. Ct. 314, Reap. Dec. 6091, decided February 1, 1945, reversing Reap. Dec. 5797. The action of the appraiser upon the summary sheets attached to the invoices is his seal of approval of the red-ink notations on the invoices. Consequently, there would seem to be no justification in fact or in law for dividing the red-ink notations into two separate parts, treating one part as the complete appraisement, and ignoring the other as a nullity and hence merely surplusage, as contended by the appellant. The notations should be accepted, or rejected, in their entirety. It may clarify the situation somewhat to point out that the invoices disclose the “purchase price” of the merchandise in United States currency and state th'e “Home Market Value” in Austrian schillings. However, 'as above indicated, it would scarcely be reasonable for the appraiser in the circumstances of this case to find a value in Austrian schillings when, prior to the date of exportation, Austria had ■ceased to exist as an independent state. In the brief filed on behalf of the appellant it is argued that “the ■appraiser having found the value in Austrian schillings, it was^ beyond his power and duty to convert such values into another currency.” While it is frequently stated that the conversion of currency is peculiarly the function of the collector of customs, nevertheless, it ’is not strictly accurate to confine the function solely to that officer. Obviously, article 776 of the" }, { "docid": "23367002", "title": "", "text": "Co., 5 Ct. Cust. Appls. 401, T. D. 34938. at p. 403. Of course, this last principle of law must be considered with and in the light of rules of evidence dispensing with proof, such as judicial notice (dealt with hereafter), presumptions, etc., which may be properly applied in a given case. Proof of the value, condition, character, or nature of the merchandise involved in a case in the Customs Court, unless waived by the adversary party, must be made in the same manner as any other facts which the party in question is called upon to establish by substantive evidence. United States v. Bird, 11 Ct. Cust. Appls. 229, T. D. 38991, at p. 232; Wanamaker v. United States, 6 Ct. Cust. Appls. 21, T. D. 35271; United States v. Burley & Tyrrell Co., supra. If the plaintiff intended to rely upon the amended chemist’s report as establishing that the merchandise was of a different nature and character than appraised, then said report should have been offered to the court as evidence for that purpose. W. T. Grant Company v. United States, supra; United States v. Abilene & Southern Railway Co., supra; Interstate Commerce Commission v. Louisville and Nashville Railroad Co., supra; United States v. Bird, supra. The plaintiff failed to do that and this record is devoid of any evidence to support an essential finding of fact necessary for plaintiff to establish in order to overcome the presumption of correctness attaching to .the appraisement of the goods as a coal-tar product dutiable under paragraph 28 upon the basis of the American selling price. A. Hauptmann, Inc. v. United States, 70 Treas. Dec. 1256, Reap. Dec. 3934, affirmed without opinion in United States v. A. Hauptmann, Inc., 25 C. C. P. A. (Customs) 323, T. D. 49423. Where, as here, a party in order to sustain an essential element of his proof relies upon the contents of a paper or document contained in or included in the “official files or papers” as tending to prove the-truth of the matters recited therein, the mere presence or inclusion of such paper" }, { "docid": "22964197", "title": "", "text": "F. 2d 56 (1945); In re Wiegand, 27 F. Supp. 725 (1939). Thus, a liquidation prior to the expiration of the time within which an appeal may be filed does not affect the validity of the appraisement. It does not, however, preclude the filing of an appeal by either the importer or the Government within the statutory period, and if such is filed, the appraisement is rendered inconclusive and jurisdiction is vested in the courts to determine value. In both United States v. Boston Paper Board Co., 23 CCPA 372, T.D. 48233 (1936), relied on in the Pistorino case, and Lawrence Groom & Co. v. United States, 64 Treas. Dec. 119, T.D. 46559 (1933), in which the appraisements were held void or inconclusive, appeals were taken within the statutory period, although the liquidation occurred prior to the expiration thereof. In Biddle Purchasing Co., Universal Light Co. v. United States, 69 Treas. Dec. 880, T.D. 48320 (1936), on the other hand, where no appeal was filed, the appraisement was not held void. In our view, since no appeal for reappraisement has been taken in the instant case and the time for such appeal has expired, the appraisement which was valid when made, is final and conclusive on all parties. Is the liquidation which took place before the expiration of the statutory period within which to file an appeal for reappraisement void or voidable? Obviously, if a timely appeal for reappraisement had been filed, the liquidation herein would have been rendered void. That is the situation which existed in a number of cases where the court has stated that the liquidation is void or that the collector has no power to liquidate while an appeal for reappraisement is pending. Stubbs v. United States, 7 Ct. Cust. Appls. 399, T.D. 36967 (1917); United States v. Boston Paper Board Co., supra; Lawrence Groom & Co. v. United States, supra; The New Home Sewing Machine Co. v. United States, 62 Cust. Ct. 895, R.D. 11655 (1969). See also United States v. European Trading Co., 26 CCPA 103, C.A.D. 1 (1938), where liquidation took place before" }, { "docid": "22713528", "title": "", "text": "S. 16; United States v. F. W. Woolworth Co., 22. C. C. P. A. 184, T. D. 47126; United States v. V. W. Davis, Sinai Kosher Sausage Factory, 20 C. C. P. A. 305, T. D. 46087; United States v. Gilson Bros., 20 C. C. P. A. 117, T. D. 45753; United States v. William Prym of America (Inc.), 17 C. C. P. A. 180, T. D. 43475; United States v. Tampa Box Co., 15 Ct. Cust. Appls. 360, T. D. 42561; Klingerit, Inc. v. United States, 14 Cust. Ct. 435, Reap. Dec. 6159; United States v. Sontag’s Shoe Stores, 14 Cust. Ct. 314, Reap. Dec. 6091; Mitsubishi Shoji Kaisha, Ltd. v. United States, 2 Cust. Ct. 935, Reap. Dec. 4570; Independent Forwarding Co. (Inc.) v. United States, 60 Treas. Dec. 757, T. D. 45237, decided on rehearing in 61 Treas. Dec. 1634, Abstract 20023; United States v. Alex. Murphy & Co., 55 Treas. Dec. 273, T. D. 43210. We know of no case, nor has any been drawn to our attention, which holds that the appraiser’s action, even though erroneous or invalid, may be disregarded or declared void by either party without resort to the judicial forum. In all such cases, the appraisement is final ■and conclusive on all parties, whether valid or invalid, unless the statutory procedure for challenging its legality is followed. It is argued, however, that the report of January 6, 1944, was incomplete and that therefore the collector could return it for completion. The report appeared complete on its face and the liquidator testified that when he first received it, he assumed that it was a valid appraisement, and that he did not liquidate because he did not have an exchange rate for the Swiss franc and because of instructions from the Bureau of Customs to withhold liquidation. The Government’s contention seems to be based upon the premise that an appraisement cannot be complete or valid unless a value for the foreign currency has been previously proclaimed by the Director of the Mint or certified by the Federal Reserve bank. We do not so read" }, { "docid": "13000528", "title": "", "text": "same kind as those which were passed upon in G. A. 6472 (T. D. 27684) and therein held to be dutiable as claimed in the protests.” As above pointed out, however, the court, in said T. D. 27684, did not decide the issue before it, but overruled the protests because they were found to be “insufficient.” The decision of the Court of Appeals for the Second Circuit, in United States v. Sellers, 166 Fed. 1022 (17 Treas. Dec. 101, T. D. 29521), affirmed the opinion of the circuit court. In W. B. Sellers v. United States, 14 Treas. Dec. 71, T. D. 28351, Abstract No. 16236, decided July 16, 1907, and again in W. B. Sellers v. United States, 14 Treas. Dec. 80, Abstract No. 16307, decided July 19, 1907, the protests of W. B. Sellers were sustained on the authority of said T. D. 27684. The latter two Sellers cases, upon appeal, were affirmed by consent (17 Treas. Dec. 331, T. D. 29692). Later, in W. B. Sellers v. United States, 17 Treas. Dec. 214, T. D. 29616, decided March 9, 1909, this court, then the Board of General Appraisers, described the merchandise there before it as “flat, thin plates of steel, with a highly polished surface and beveled edges, while others are so-called monogram dies, small plates of polished steel about one-half inch in thickness.” It was classified as articles of steel in paragraph 193 of the Tariff Act of 1897 and was claimed to be properly classifiable as steel plates and dutiable at the appropriate rates provided in paragraphs 135 and 141 of said act. Following earlier decisions, the protests were sustained. The last of this series of cases to be cited by the party in interest is W. E. Sellers v. United States, 4 Cust. Ct. 388, Abstract 43170, decided January 31, 1940. At the trial of that case, plaintiff, William E. Sellers, appeared without counsel and produced a sample of the merchandise there in question. It was received in evidence and marked “Plaintiff’s Exhibit 1.” It is in the present record as a part of" }, { "docid": "5814568", "title": "", "text": "testified that, upon receipt of the parts, he opened the case, drilled holes in it to make a place for the winding stem, cut the stem to fit a crown on it, secured the stem with the crown in the movement, fitted the movement into the case, and closed the case. He said there was nothing exceptional in the work he had done; that it was the regular way of making a watch. The court held that drawback should have been allowed, stating that the labor performed in adjusting the parts so as to unite them into a completed watch was more than mere assembling of such parts and that the watches were manufactured in the United States with imported merchandise. The court pointed out that the cases, movements, stems, and crowns were distinctive parts, each known and bought and sold by its respective name until they were united into one unit, thereafter called a watch. On appeal, the question as to whether the goods were manufactured in the United States was waived by the Government, and the decision of the trial court was affirmed. Since that time, drawback rates have been consistently promulgated by the Secretary of the Treasury covering watches manufactured in the United States with the use of imported watch movements and/or watchcases or watch heads. 74 Treas. Dec. 106, 109, T. D. 49672-N; 75 Treas. Dec. 359, 361, T. D. 50126-L/N; 80 Treas. Dec. 30, 32, T. D. 51194-F; 86 Treas. Dec. 108, 110, T. D. 52727-G; 90 Treas. Dec, 348, 350, T. D. 53931-1. Tbe evidence in this case indicates that the watchmaker employed by Mr. Niaman did much the same type of work as the watchmaker in the Schwob case. The latter testified that that was the regular way of making a watch. See also S. H. Pomerance Co., Inc., etc. v. United States, 21 Cust. Ct. 334, Reap. Dec. 7632, affirmed 28 Cust. Ct. 515, Reap. Dec. 8073, which, while involving a question of appraisement, discusses at length the method of assembling watchcases and movements. It has long been held that to constitute" }, { "docid": "5814578", "title": "", "text": "unless compliance is waived by the collector or is impossible. Maple Leaf Petroleum, Ltd. v. United States, 25 C. C. P. A. (Customs) 5, T. D. 48976; Thornley & Pitt a/c Earl Investment Corpn. v. United States, 33 Cust. Ct. 136, C. D. 1645; United States v. Coastwise Steamship & Barge Co., 9 Ct. Cust. Appls. 216, T. D. 38047; Close & Stewart v. United States, supra; Mine Safety Appliances Company v. United States, 36 Cust. Ct. 277, C. D. 1786. In the instant case, there has been no waiver, but, since the collector at Honolulu has refused to issue a certificate of exportation, it is impossible for the plaintiff to obtain one.' The question then presents itself as to whether sufficient evidence in lieu of such certificate has been produced. In some cases where it was impossible to obtain a certificate of exportation, substitute documentary evidence has been accepted. Minneapolis Barrel & Bag Co. v. United States, 51 Treas. Dec. 187, T. D. 42006; New York Dress & Costume Co., Inc. v. United States, 73 Treas. Dec. 1258, Abstract 38432; Draeger Shipping Co., Inc. v. United States, 2 Cust. Ct. 676, Abstract 41131; Glose & Stewart v. United States, supra. In United States v. Coastwise Steamship & Barge Co., supra, the facts were established by oral testimony.. There, an American marine engine which was taken from a wrecked American vessel and repaired in Canada was claimed, on its return, to be entitled to free entry as American goods returned, except as to the value of the repairs. The Government contended, among other things, that free entry could not be allowed because no certificate of exportation was made by the collector or noted on the manifest. The court held that since it was impossible to identify the article in accordance with the regulations, its identity might be, and was, established by other satisfactory evidence. In tbe instant case, there is positive testimony identifying the imported merchandise with watches purchased by Naneo in New York and Los Angeles, which watches were manufactured in the United States with American watchcases and foreign" }, { "docid": "18995512", "title": "", "text": "persons. It is clear, therefore, that this court has no authority to grant or disallow an abatement or refund of duties under the circumstances set forth in section 563 (a) and has no authority to review the decision of the Secretary of tbe Treasury, or, in cases involving less tban $25, the collector. T. D. Downing Co. v. United States, 73 Treas. Dec. 406, T. D. 49441, rehearing denied, 73 Treas. Dec. 1324, Abstract 38855; McKesson & Robbins v. United States, 13 Cust. Ct. 290, Abstract 49737. The first and second claims in the instant case are to the effect that a refund should have been authorized under the circumstances alleged and that the liquidation is illegal because the claim for a refund was disallowed. Since this court has no jurisdiction to grant or disallow a refund or to review a proper decision granting or disallowing a refund under the circumstances herein alleged, plaintiff’s first and second claims must be dismissed. The defendant’s motion to dismiss the protest is granted to that extent. The third claim, however, presents a different problem. It is alleged therein that the collector illegally exercised the function of the Secretary of the Treasury and failed to comply with certain mandatory regulations. While this court may not review issues the final determination of which has been conferred upon the Secretary of the Treasury, the validity of the action of the Secretary or other administrative official may be reviewed by the court, provided the legality of such action is properly raised by the filing of a timely protest. Waterman Steamship Corp. v. United States, 30 C. C. P. A. (Customs) 119, 125, C. A. D. 223; Hampton, Jr., & Co. v. United States, 14 Ct. Cust. Appls. 350, T. D. 42030 (affirmed in J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394; United States v. Tower & Son, 14 Ct. Cust. Appls. 421, T. D. 42058; Carl Zeiss, Inc. v. United States, 23 C. C. P. A. (Customs) 7, T. D. 47654. In Barr v. United States, 324 U. S. 83, the Supreme" }, { "docid": "5814569", "title": "", "text": "Government, and the decision of the trial court was affirmed. Since that time, drawback rates have been consistently promulgated by the Secretary of the Treasury covering watches manufactured in the United States with the use of imported watch movements and/or watchcases or watch heads. 74 Treas. Dec. 106, 109, T. D. 49672-N; 75 Treas. Dec. 359, 361, T. D. 50126-L/N; 80 Treas. Dec. 30, 32, T. D. 51194-F; 86 Treas. Dec. 108, 110, T. D. 52727-G; 90 Treas. Dec, 348, 350, T. D. 53931-1. Tbe evidence in this case indicates that the watchmaker employed by Mr. Niaman did much the same type of work as the watchmaker in the Schwob case. The latter testified that that was the regular way of making a watch. See also S. H. Pomerance Co., Inc., etc. v. United States, 21 Cust. Ct. 334, Reap. Dec. 7632, affirmed 28 Cust. Ct. 515, Reap. Dec. 8073, which, while involving a question of appraisement, discusses at length the method of assembling watchcases and movements. It has long been held that to constitute a manufacture it must appear that the processing applied produced an article with a new name, character, or use. Ishimitsu v. United States, 11 Ct. Cust. Appls. 186, T. D. 38963; United States v. Wilkinson Process Rubber Sales Corp., 22 C. C. P. A. (Customs) 60, T. D. 47051; H. Muehlstein & Co., Inc., et al. v. United States, 44 C. C. P. A. (Customs) 107, C. A. D. 645. The uniting of a watchcase and a watch movement into a complete watch results in an article having a new name, character, and use. When this operation is performed in the United States, the finished article is the product or manufacture of the United States. The next question concerns the identification of the imported merchandise with American-made watches previously exported. The witness Rundió, who examined the merchandise when it came in, stated positively that it consisted of watches which his company had shipped to Honolulu in May and June 1946. He testified that he recognized the names on the invoice, plaintiff’s collective exhibit 2, as" }, { "docid": "22713525", "title": "", "text": "and report of appraisement has been lodged with the collector, but within 60 days thereafter an appeal for reappraisement may be filed by the collector if he believes the appraisement is incorrect. It is also well settled by the authorities that an appraisement is-complete and subject to no further change when it has been physically-transmitted to and lodged with the collector. Igstaedter & Co. v. United States, 11 Ct. Cust. Appls. 477, T. D. 39570; Ringk & Co. v. United States, 12 Ct. Cust. Appls. 40, T. D. 39980; United States v. Dorn & Co., 13 Ct. Cust. Appls. 130, T. D. 40961; F. W. Myers & Co. v. United States, 36 Treas. Dec. 194, T. D. 37934; Ainslee Knitting Machine Co., Inc. v. United States, 69 Treas. Dec. 954, T. D. 48339. In Ringk & Co. v. United States, supra, the merchandise was entered at 13,354.18 yen, although the consular invoice stated the gross value-to be 14,760.10 Peiyang dollars, which, after deducting nondutiable-charges, would amount to 13,354.18 Peiyang dollars. The appraiser approved the valuation given in the entry and officially reported that-fact to the collector. No appeal was taken for a reappraisement. Subsequently, the collector transmitted the report to the appraiser with a notation calling his attention to the fact that the invoice was in Peiyang dollars and not in yen. Thereupon, the acting appraiser-returned the report indorsed as follows: “Collector, this office amends return to read currency as P. Y. Liquidation on the basis of the amended return was protested and it was held that the subsequent-attempt to amend was unauthorized; that if the collector was dissatisfied he was entitled to appeal for a reappraisement, but that after the time allowed for such appeal had elapsed, the appraisement became-final and the collector was bound to liquidate accordingly. It is claimed in the instant case, however, that the report of January 6, 1944, was incomplete and illegal and that it was not necessary for the collector to take an appeal for reappraisement from a void report. Assuming it were void, did the collector have the authority to make that" }, { "docid": "22713524", "title": "", "text": "bank; that an appraisement in such a currency has no meaning, unless a value has been previously proclaimed or certified; that therefore the original appraisement herein was void; that the collector is not required to file an appeal for re-appraisement from a void appraisement; and that the second appraisement is valid. In a well-considered opinion it was held by the single judge that the attempted appraisement on June 18, 1946, was illegal, null, and void, and that the return of value which approved the entered value as reported by the appraiser on January 6, 1944, constituted the statutory appraisement of the importation, and that in the absence of an appeal therefrom it became final 60 days after the date of the appraiser’s report and formed the basis for the assessment of duties. Gothic Watch Co. v. United States, 19 Cust. Ct. 309, Reap. Dec. 7438. Section 14.3 (/) of the Customs Regulations of 1943 provides: The report of the appraiser as to value shall not be reconsidered or modified by him after the appraised invoice and report of appraisement has been lodged with the collector, but within 60 days thereafter an appeal for reappraisement may be filed by the collector if he believes the appraisement is incorrect. It is also well settled by the authorities that an appraisement is-complete and subject to no further change when it has been physically-transmitted to and lodged with the collector. Igstaedter & Co. v. United States, 11 Ct. Cust. Appls. 477, T. D. 39570; Ringk & Co. v. United States, 12 Ct. Cust. Appls. 40, T. D. 39980; United States v. Dorn & Co., 13 Ct. Cust. Appls. 130, T. D. 40961; F. W. Myers & Co. v. United States, 36 Treas. Dec. 194, T. D. 37934; Ainslee Knitting Machine Co., Inc. v. United States, 69 Treas. Dec. 954, T. D. 48339. In Ringk & Co. v. United States, supra, the merchandise was entered at 13,354.18 yen, although the consular invoice stated the gross value-to be 14,760.10 Peiyang dollars, which, after deducting nondutiable-charges, would amount to 13,354.18 Peiyang dollars. The appraiser approved the valuation" }, { "docid": "20749495", "title": "", "text": "that the plaintiff’s only recourse is to apply to the Secretary of the Treasury who is authorized under section 520 of said act— “to refund duties and correct errors in liquidation of entries * * * whenever a clerical error is discovered in any entry or liquidation within one year after the date of entry, or within sixty days after liquidation when liquidation is made more than ten months after the date of entry.” In passing on protests alleging clerical error in which the importer claimed that on account of an error duty was assessed at too high a value, the court has consistently held that duty cannot be assessed on merchandise at less than the appraised value and that -unless the entered and appraised value, when they were the same, was not reduced by reappraisement, no relief could be granted. J. E. Bernard & Co. v. United States, T. D. 42525, 52 Treas. Dec. 504; C. J. Tower & Sons v. United States, Abstract 8470, 55 Treas. Dec. 1110; Decorative Plant Co. et al. v. United States, Abstract 15078, 59 Treas. Dec. 1543. In J. E. Bernard & Co. v. United States, supra, the court said: In the case at bar if the appraiser had appraised the merchandise at the invoiced value less $7.62, we would'be justified in ordering the collector to re-liquidate and take duty upon that value by reason of the clerical error made in the entering of the merchandise, but such is not the fact. The merchandise was appraised at the invoiced value. The importer might have appealed to reappraise- merit, and upon appeal the court might have found a different or lower value. That was his only method to obtain relief so far as the appraisement of the merchandise is concerned. It may be added that because an error was made in entering the merchandise it does not follow that there was a mistake in appraising. [Italics not quoted.] In tbe case of H. S. Dorf & Co., Inc. v. United States, Reap. Dec. 3925, 70 Treas. Dec. 1228, a motion to dismiss a reappraisement" } ]

[ { "docid": "23330987", "title": "", "text": "element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each year if, among other things, an employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). It is unlawful “for any employer to interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). Employers who violate § 2615 are “liable to any eligible employee affected” for damages and appropriate equitable relief. 29 U.S.C. § 2617(a)(1). Walton argues on appeal that Visteon interfered with his rights under the FMLA by refusing to recognize his absence from April 20 to May 4 as FMLAqualifying leave. To succeed on his FMLA-interference claim, Walton must demonstrate that: (1) he was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of his intention to take leave; and (5) the employer denied the employee FMLA benefits to which he was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003). Because the first three factors are not in dispute, the sole issue in this appeal is whether Walton provided adequate notice to Visteon of his need for FMLA leave under the fourth prong of the Cavin analysis. When the need for FMLA leave is unforeseeable, such as here, the pertinent regulations require that an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the" } ]

[ { "docid": "8291970", "title": "", "text": "basis for refusing to apply the Supreme Court’s Ledbetter reasoning as to the time when each of her FMLA claims accrued. The United States Supreme Court determined that Ledbetter’s accrual rule is sensible in the Title VII context, our Circuit and other courts have applied it in the ADA context, and Maher identifies no court decision that declines to apply Led-better in the FMLA context on the ground that the text or purpose of Title VII and FMLA are materially different and distinguishable on this basis. DISCUSSION If Not Time-Barred, Do Maher’s Claims Present a Genuine Issue of Material Fact? FMLA Theories of Recovery. Two of FMLA’s three available theories of recovery are potentially applicable here. A plaintiff may establish an FMLA violation through an entitlement/interference theory under 29 U.S.C. § 2615(a)(1) or a discrimination/retaliation theory under 29 U.S.C. § 2615(a)(2). See Alexander v. Atlantic Auto. Components, 2008 WL 4283520, *16 (W.D.Mich. Sept. 16, 2008) (Maloney, C.J.) (citing Wysong v. Dow Chem. Co., 503 F.3d 441, 446 (6th Cir.2007) and Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 555 (6th Cir.2006)). FMLA Interference Claim. To prevail on a claim under the entitlement/interference theory, Maher must show that (1) she is an eligible employee, (2) IPC is an employer as that term is defined by the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave IPC notice of her intention to take leave, and (5) IPC denied her FMLA benefits to which she was entitled. Alexander, 2008 WL 4283520 at *16 (citing Killian, 454 F.3d at 556 and Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003)). An employee is terminated after taking FMLA leave has been “denied benefits” because she has not been restored to her former position or an equivalent one. Alexander, 2008 WL 4283520 at *16 (citing Killian, 454 F.3d at 556); see 29 U.S.C. § 2614(a)(1) (an employee who takes leave under the FMLA is entitled to be restored to the same position or an equivalent position upon returning to work). FMLA Discrimination/Retaliation Claim. To prevail on" }, { "docid": "10313569", "title": "", "text": "to put an employer on notice that the protections of the Act may apply. See 29 U.S.C. § 2612(a)(1)(D), (e); 29 C.F.R. §§ 825.302-.303. When timely and adequate communication is not given, the protections of the Act do not apply, even if the employee in fact has a serious health condition. See, e.g., Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir.2001)(noting that “notice is essential” even assuming that the employee was suffering from a serious health condition). To establish unlawful interference with an entitlement to FMLA benefits, an employee must prove that: (1) she was an eligible employee; (2) her employer was covered by the statute; (3) she was entitled to leave under the FMLA; (4) she gave her employer adequate notice of her intention to take leave; and (5) the employer denied her FMLA benefits to which she was entitled. Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir.2006); see 29 U.S.C. § 2615(a)(l)(prohibiting an employer from interfering with an employee’s FMLA rights). i. Adequacy and Timeliness of Notice Smithfield argues that Rodriguez’s notice regarding her absences after September 20 was both inadequate and untimely under the FMLA. In measuring adequacy of notice under the Department of Labor’s promulgated regulations, the Court must assess whether Plaintiff informed Defendant of (1) such facts as to make the employer aware that the employee needed leave due to a serious health condition; and (2) “the anticipated timing and duration of the leave.” 29 C.F.R. § 825.302(c). Where the need for leave was not foreseeable, this notice should be given “as soon as practicable under the facts and circumstances of the particular case,” with an expectation that notice will occur “within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.” 29 C.F.R. § 825.303(a). In evaluating the timing of such notice, the Court must consider the requirements of the employer. 29 C.F.R. § 825.302(d)(providing that “an employer may also require an employee to comply with the employer’s usual and customary notice and procedural" }, { "docid": "19960592", "title": "", "text": "Cir.2007). As in those cases, we need not mention Colgate again. A. FMLA Interference We begin with Caskey’s FMLA interference claim. The FMLA entitles eligible employees up to twelve weeks of unpaid leave for, among other things, a “serious health condition” that makes an employee unable to perform the functions of his or her position. 29 U.S.C. § 2612(a)(1)(D); Darst, 512 F.3d at 908. The FMLA makes it unlawful for “any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided by [the Act].” 29 U.S.C. § 2615(a)(1); Darst, 512 F.3d at 908. Caskey claimed that Hill’s interfered with her attempt to claim FMLA for the absences on May 21, 22, and 27 of 2003. To prevail on her FMLA interference claim, Caskey must establish: (1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.2006). The district court found that Caskey failed to establish the third element, because she could not show that she had a serious health condition, and the fourth element, because she did not provide sufficient notice of her intent to take leave. An employee is entitled to leave under the FMLA if (1) she is afflicted with a “serious health condition,” and (2) that condition renders her unable to perform the functions of her job. 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Caskey did not present sufficient evidence to show that the string of absences starting on May 21 was the result of a serious health condition. She argues that during this time period she suffered from anxiety," }, { "docid": "22998827", "title": "", "text": "it attempts to do here, by pointing to an absence of evidence to support the non-moving party’s claim. If Sybra satisfies its burden, Donald must then set forth the specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In evaluating the evidence, we draw all reasonable inferences in favor of Donald. Blackmore, 390 F.3d at 895 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A mere scintilla of evidence in support of Donald’s position will be insufficient for her claim to survive summary judgment. Rather, there must be enough evidence such that the jury could reasonably find for her. Anderson, 477 U.S. at 251,106 S.Ct. 2505. B. FMLA Claims Donald argues that Sybra’s actions give rise to two causes of action under the FMLA. Donald first argues that because she was terminated while on leave, Sybra violated 29 U.S.C. § 2615(a)(1), which makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA provision. We have previously held that “[i]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLAprotected leave, the employer has denied the employee a benefit to which he is entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir.2007). To establish a prima facie case of FMLA interference, Donald must show that (1) she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled. Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir.2006) (citing Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir .2005)). Donald next argues that Sybra retaliated against her for taking FMLA leave. The FMLA" }, { "docid": "22998828", "title": "", "text": "employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA provision. We have previously held that “[i]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLAprotected leave, the employer has denied the employee a benefit to which he is entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir.2007). To establish a prima facie case of FMLA interference, Donald must show that (1) she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled. Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir.2006) (citing Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir .2005)). Donald next argues that Sybra retaliated against her for taking FMLA leave. The FMLA prohibits an employer from “discharging] or in any other manner discriminating] against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). To establish a prima facie case of FMLA retaliation, Donald must show that (1) she was engaged in an activity protected by the FMLA; (2) the employer knew that she was exercising her rights under the FMLA; (3) after learning of the employee’s exercise of FMLA rights, the employer took an employment action adverse to her; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action. Killian, 454 F.3d at 556 (citing Arban v. West Publ’g Corp., 345 F.3d 390, 404 (6th Cir.2003)). There are disputes as to whether Donald’s absence on February 27 and 28 was an exercise of her rights under the FMLA, and whether Donald provided her supervisors with adequate notice of her intention to take leave. This is an intensely factual determination, with a number of regulations governing how employees and employers must act based on the" }, { "docid": "21342091", "title": "", "text": "theories of recovery under the FMLA: (1) the interference theory arising under 29 U.S.C. § 2615(a)(1), which prohibits an employer from “interfer[ing] with, restraining], or denying]” an employee’s exercise, or attempt to exercise, a right provided by the statute; and (2) the retaliation theory arising under 29 U.S.C. § 2615(a)(2), which protects the employee from discrimination for exercising the statutory rights. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). Accord Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir. 2005). Plaintiff alleges that, by terminating her employment, Defendants interfered with the substantive rights to which she was entitled under the FMLA (Dkt. No. 1 ¶ 41; Dkt. No. 64 at 5). “As to interference claims, ‘[t]he issue is simply whether the employer provided its employee the entitlements set forth in the FMLA.’ ” Annobil v. Worcester Skilled Care Ctr., Inc., CM Action No. 11-40131-TSH, 2014 WL 4657295, at *8 (D. Mass. Sept. 10, 2014) (quoting Hodgens, 144 F.3d at 159). To prevail on the interference claim, Plaintiff must establish that: (1) she is an “eligible employee,” as that term is defined by the statute; (2) CHD is an employer that is covered by the FMLA; (3) she qualified for FMLA benefits because she suffered from a “serious- health condition;” (4) “she gave [Defendants] appropriate notice” of her intention to take leave; and (5) Defendants denied her benefits to which she was entitled. See Call v. Fresenius Med. Care Holdings, Inc., 534 F.Supp.2d 184, 192 (D. Mass. 2008) (quoting Wheeler v. Pioneer Developmental Servs., 349 F.Supp.2d 158, 164 (D. Mass. 2004)). Only the last element—whether Defendants, denied Plaintiffs FMLA bene-, fits—is disputed (Dkt. No. 64 at 5). Specifically, for purposes of the motion for summary judgment, the parties agree that: Plaintiff was eligible for FMLA benefits due to her hospitalization from April 15 to April 24,2013 for a mental health condition that arose unexpectedly on April 15; Plaintiffs son notified Plaintiffs supervisors, Pennington and Thomas, that Plaintiff was hospitalized, which triggered Ochrymowicz’s preparation of a short term disability and FMLA leave packet for" }, { "docid": "8750264", "title": "", "text": "any FMLA right. [ ] § 2615(a)(1). This prohibition includes retaliatory discharge for taking leave. See Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir.2001)”). We now turn to the applicable statutory.provisions and analyze Wysong’s claim under the interference theory. The FMLA prohibits qualifying employers from “interfering] with, restraining], or denying] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA].” 29 U.S.C. § 2615(a)(1). To prevail under the interference theory, the employee must establish the following: (1) he is an “[eligible employee,” 29 U.S.C. § 2611(2); (2) the defendant is an “Employer,” 29 U.S.C. § 2611(4); (3) the employee was entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1); (4) the employee gave the employer notice of his intention to take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer denied the employee FMLA benefits to which he was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003). The employee must establish these elements by a preponderance of the evidence. Sorrell v. Rinker Materials Corp., 395 F.3d 332, 335 (6th Cir.2005). The parties agree that Wysong meets the first four elements of her case. The question of whether- Dow denied her, FMLA benefits to which she was entitled (the fifth element) is more complicated. Quoting a case from the U.S. District Court for the Southern District of Ohio, Wysong argues that the fifth element of an interference-theory claim is that the employer “somehow used the leave against her and in an unlawful manner, as provided in either the statute or regulations.” Bradley v. Mary Rutan Hosp., 322 F.Supp.2d 926, 940 (S.D.Ohio 2004). Although this language is different from the language used in Cavin, it does not conflict with Cavin, and, in fact, adds depth to the fifth element articulated in Cavin. Under 29 C.F.R. § 825.220(c) “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” We have earlier held that this negative-factor analysis is applicable in analyzing an interference claim. See Brenneman" }, { "docid": "23697933", "title": "", "text": "alternatively, her termination was not related to any FMLA rights. The district court concluded the retaliation claim failed because she never exercised her FMLA rights, and, alternatively, she was not terminated because of those rights. Phillips, arguing the district court erred in granting summary judgment on both of her claims, now appeals. II This court reviews the district court’s grant of summary judgment de novo. Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir.2002). “Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Id. The FMLA entitles an employee to twelve workweeks of leave during any twelve-month period if he or she has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is any “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). There are two types of claims under the FMLA: “(1) ‘interference’ or ‘(a)(1)’ claims in which the employee alleges that an employer denied or interfered with his substantive rights under the FMLA and (2) ‘retaliation’ or ‘(a)(2)’ claims in which the employee alleges that the employer discriminated against him for exercising his FMLA rights.” Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir.2006) (citing 29 U.S.C. § 2615(a)(1)-(2)). A In order to state a claim for interference under the FMLA, Phillips must have given notice of her need for FMLA leave. When leave is needed for an unforeseeable event, notice is required “as soon as practicable.” 29 C.F.R. § 825.302(a). “This ordinarily means at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.” Spangler, 278 F.3d at 852 (quoting 29 C.F.R. § 825.302(b))" }, { "docid": "18494479", "title": "", "text": "FMLA interference claim, an employee need only demonstrate that her employer has denied her leave under the act; she need not show discriminatory intent on the part of the employer. Burnett, 472 F.3d at 477. As for the elements of an interference claim, an employee must demonstrate that: (1) she was eligible for FMLA protection; (2) her employer was covered by the FMLA; (3) she was entitled to FMLA leave; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her benefits to which she was entitled. Id. The district court issued summary judgment because Smith was not entitled to FMLA leave. Hope School argues on appeal that Smith also failed to provide sufficient notice and does not have a qualifying condition. An employee is entitled to FMLA leave if she can demonstrate that she suffers from a “serious health condition” that prevents her from fulfilling the functions of her job. 29 U.S.C. § 2612(a)(1)(D). The FMLA defines an employee with a “serious health condition” as one who has “an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Applicable regulations state that continuing treatment by a health care provider includes conditions that require examinations and evaluations over a period of time. 29 C.F.R. § 825.115. How ever, an employer is allowed to require an employee to document her condition before granting FMLA leave, and can require her to submit certification of her condition from her health care provider. 29 C.F.R. § 825.305(a). If an employee fails to provide such certification in a timely manner, then an employer is entitled to deny the employee FMLA leave. 29 C.F.R. § 825.313. In this case, Smith only made one attempt to submit her certification paperwork. Consequently, the issue here is whether Smith’s alteration of her certification form made her ineligible for FMLA leave. Smith’s arguments on this point are centered on a federal regulation governing job restoration and maintenance" }, { "docid": "12173206", "title": "", "text": "an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b). To state a claim for interference under the FMLA, a plaintiff must show that: (1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA. Lombardo v. Air Products and Chemicals, Inc., No. 05-1120, 2006 WL 1892677, at *3-4, 2006 U.S. Dist. LEXIS 46077 at *11 (E.D.Pa. July 7, 2006) (citing Weisman v. Buckingham Twp., No. 04-4719, 2005 WL 1406026, 2005 U.S. Dist. LEXIS 11696 at *11 (E.D. Pa. June 14, 2005)). Pursuant to FMLA regulations, an employee must give an employer notice that he or she needs to take FMLA leave. 29 C.F.R. § 825.302; Wilson v. Lemington Home for the Aged, 159 F.Supp.2d 186, 191 (W.D.Pa.2001). If the leave is foreseeable, the employee must provide thirty days’ notice. Id. If thirty days’ notice is not possible, then notice must be given “as soon as practicable.” Id. An employee need not specifically mention the FMLA or assert rights under it to satisfy the notice requirement. 29 C.F.R. § 825.302(c); Wilson, 159 F.Supp.2d at 192. The employee need only state that leave is needed. Id. In Sommer v. The Vanguard Group, 461 F.3d 397 (3d Cir.2006), the court of appeals noted: [T]he FMLA declares it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” in the FMLA. § 2615(a)(1). Such a claim is typically referred to as an “interference” claim, and is acknowledged to “set floors for employer conduct.” Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005). Id. at 399. “After an eligible employee returns from an FMLA leave, the employee is entitled to be reinstated" }, { "docid": "23216677", "title": "", "text": "violation of this right, which we have previously described as the “entitlement” or “interference” theory arising from 29 U.S.C. § 2615(a)(1), is different from a “retaliation” or “discriminatory” theory arising from 29 U.S.C. § 2615(a)(2). See Hoge, 384 F.3d at 244. As discussed supra, a secondary employer who interferes with an employee’s effort to return to her position is also liable under the Act. To prevail on the entitlement theory claim (i.e. failure to reinstate), an employee must prove that: (1) she was an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave the employer notice of her intention to take leave, and (5) the employer denied the employee FMLA benefits to which she was entitled. Edgar v. JAG Prods., 443 F.3d 501, 507 (6th Cir.2006). However, “[a]n employee returning from FMLA leave is not entitled to restoration unless he would have continued to be employed if he had not taken FMLA leave.” Hoge, 384 F.3d at 245. As discussed infra, the plaintiff has satisfied the first and third prongs and is an eligible employee vis-á-vis Bartech. Additionally, it is undisputed that Bartech employs more than 50 individuals within 75 miles of Grace’s worksite and is thus an employer under FMLA. Grace provided sufficient notice to the defendants of her intention to take leave. See JA 171 (noting that she informed Bartech of her intent); Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir.2004) (notice must be “reasonably adequate to apprise the employer of the employee’s request”). However, Bartech and USCAR contend that the decision to terminate the plaintiff resulted from a legitimate economic decision, thereby precluding the plaintiff from satisfying the fifth prong. An employer’s intent is not directly relevant to the entitlement inquiry. Edgar, 443 F.3d at 507. However, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Id. at 508 (citing Arban v. West Publ’g Corp., 345" }, { "docid": "4197793", "title": "", "text": "perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). In doing so, the statute “accommodates the important societal interest in assisting families by establishing minimum labor standard[s] for leave.” H.R. Rep. No. 103-8(1), 103d Cong., 1st Sess. 1993, at *21, U.S.Code Cong. & Admin.News 1993, pp. 3, 6. The FMLA prohibits employers from “interfer[ing] with, restraining], or denying] the exercise of or the attempt to exercise, any right” under the statute. 29 U.S.C. § 2615(a). It also prohibits an employer from discriminating or retaliating against an employee for taking FMLA leave. 29 U.S.C. § 2615(a)(2). Thus, the legislation provides recovery under two theories: interference and retaliation. Hunter v. Valley View Local Schs., 579 F.3d 688, 691 (6th Cir.2009), reh’g & reh’g en banc denied (Oct. 26, 2009). FMLA Interference. In order to prevail on an FMLA interference claim, the plaintiff must show that “(1) [she] is an eligible employee; (2) the defendant is an [FMLA] employer; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of [her] intention to take leave; and (5) the employer denied the employee FMLA benefits to which [she] was entitled.” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003), reh’g & reh’g en banc denied (Feb. 5, 2004) (internal citations and quotation marks omitted). A plaintiff cannot establish a prima facie case of FMLA interference without demonstrating that she suffered from a “serious health condition.” See Morris v. Family Dollar Stores of Ohio, Inc., 320 Fed.Appx. 330, 337 (6th Cir.), cert. denied — U.S. --, 130 S.Ct. 418, 175 L.Ed.2d 272 (2009). It is the position of the Defendant that Taylor has failed to do so. The term “serious health condition” means “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The Department of Labor’s regulations give a more detailed explanation of what qualifies as a serious health condition under § 261" }, { "docid": "20587690", "title": "", "text": "seek both equitable relief and money damages “against any employer (including a public agency),” id. § 2617(a)(2), who violates the Act, id. § 2615(a)(1). Plaintiff advances two theories of liability: (1) that Defendants wrongfully denied him FMLA leave and (2) that they “discouraged” him from exercising his FMLA rights. To make out a prima facie case on a claim for interference with FMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiff must show: (1) that he is an eligible employee under the FMLA; (2) that the defendant is an employer as defined in the FMLA; (3) that he was entitled to leave under the FMLA; (4) that he gave notice to the defendant of his intention to take leave; and (5) that he was denied benefits to which he was entitled under the FMLA. Geromanos v. Columbia Univ., 322 F.Supp.2d 420, 427 (S.D.N.Y.2004). “[C]ourts in the Second Circuit require a Plaintiff who asserts a FMLA interference claim on a ‘discouragement theory’ to offer evidence that she tried to assert her FMLA rights and was thereafter discouraged from taking FMLA leave” or that “the employer’s purported acts of discouragement would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise his or her FMLA rights.” Reilly v. Revlon, Inc., 620 F.Supp.2d 524, 535 (S.D.N.Y.2009). A. Intermittent leave under the FMLA Because Defendants contend that Mr. Santiago was not entitled to the kind of FMLA leave that he sought and Mr. Santiago’s claims necessarily depend upon being denied benefits to which he was entitled under the FMLA, the Court will first consider this argument. Under the FMLA, an employee is entitled to leave “[bjecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A “‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider.” Id. § 2611(11)(B). Included within this definition of a “serious health condition involving continuing treatment by a health care provider” is a: • “Chronic serious health condition,”" }, { "docid": "16433852", "title": "", "text": "to establish a prima facie case for interference. Columbia asserts that it did not interfere with plaintiffs rights under FMLA, since Geromanos received all of the leave to which she was statutorily entitled (12 weeks). Plaintiff avers that she has indeed established a prima facie case and that issues of fact prevent summary judgment. I conclude that Plaintiff has not presented sufficient evidence from which a reasonable jury could find that her rights under FMLA were violated. Geromanos did in fact receive her entire FMLA entitlement (twelve weeks), in addition to benefits beyond those required by FMLA. And there is no evidence that she was discharged for taking FMLA leave. Defendant’s Motion for Summary Judgment is granted. C. Plaintiff Has Failed To Establish A Prima Facie Case For Interference To make out a prima facie case on a claim for interference with FMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiff must establish five elements: 1) that she is an eligible employee under the FMLA; 2) that defendant is an employer as defined in FMLA; 3) that she was entitled to leave under FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under FMLA. (Def. Mem., 10-11 citing Santos v. Knitgoods Workers’ Union, Local 155, No. 99 Civ. 1499, 1999 WL 397500 at *3 (S.D.N.Y. June 15, 1999), aff'd, 252 F.3d 175 (2d Cir.2001)); see also Mayo v. Columbia University, No. 01 Civ.2002, 2003 WL 1824628, *8 (S.D.N.Y. April 7, 2003); Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., No. 00 Civ. 5207, 2002 WL 1059117 (S.D.N.Y. May 28, 2002). Plaintiff has failed to establish a prima facie case because there is no evidence that Columbia denied her any benefits to which she was entitled under FMLA. See Santos, 1999 WL 397500 at *3. FMLA grants employees two distinct rights: the right to take leave for the treatment of a serious health condition (29 U.S.C. § 2612(a)(1)) and the right to be reinstated to the former position or an equivalent position at the" }, { "docid": "5551292", "title": "", "text": "the FMLA and the employee may bring a civil action against the employer for said violations. 29 U.S.C. §§ 2615(a), 2617(a). Plaintiff asserts that Defendant violated both sections of the FMLA. 1. Violation of FMLA — Count I Count I of Plaintiffs Complaint alleges that Defendant improperly interfered with her right to take medical leave pursuant to 29 U.S.C. § 2615(a)(1). Specifically, § 2615(a)(1) provides: It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter. Defendant asserts that it is entitled to summary judgment as to Count I of Plaintiffs Complaint because: (1) Plaintiff failed to provide it with enough information to place it on notice that she was entitled to FMLA leave, (2) it met its obligation of providing Plaintiff with written notice of what was required in a physician certification for FMLA leave in its employee handbook; and (3) Plaintiff cannot prove any damages. I will deal with each argument in turn. a. An employee’s notice obligation under the FMLA Pursuant to the regulations, an employee must provide her employer with notice that she needs FMLA leave. 29 C.F.R. § 825.302. If the leave is foreseeable, the employee must provide at least 30 days notice. Id. If 30 days notice is not practicable, notice must be given “as soon as practicable.” 29 C.F.R. § 825.302(a); § 825.303(a). “As soon as practicable” is defined as “both possible and practical, taking into account all of the facts and circumstances in the individual case,” but usually within 1 -2 business days of when the need for leave becomes known. 29 C.F.R. § 825.302(b). Specifically: The employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed ... 29 C.F.R. § 825.302(c); see also, § 825.303(b) (stating virtually the same standard in cases of unforeseeable" }, { "docid": "8750263", "title": "", "text": "defendant looking at Wysong’s complaint would be on sufficient notice that she was broadly alleging violations under 29 U.S.C. § 2615, and that her FMLA claim could encompass either the interference theory, the retaliation theory, or both theories. J.A. at 10-11 (Compl. at 4-5). Contrary to the district court’s characterization, Wysong has never alleged a new claim since filing her complaint. The claim has always been the same one: that Dow’s actions violated the FMLA. Although we analyze an FMLA claim based on the interference theory differently from one based on the retaliation theory, notice pleading does not box plaintiffs into one theory or the other at the complaint stage of an FMLA action. Thus, Wysong did not forfeit the opportunity to present her FMLA claim under the interference theory. Wysong’s claim that she was terminated for taking FMLA leave is cognizable under the (a)(l)-interference theory. Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818, 825 (6th Cir.2002) (“[Employers are prohibited from interfering, restraining, or denying the exercise of or attempted exercise of any FMLA right. [ ] § 2615(a)(1). This prohibition includes retaliatory discharge for taking leave. See Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir.2001)”). We now turn to the applicable statutory.provisions and analyze Wysong’s claim under the interference theory. The FMLA prohibits qualifying employers from “interfering] with, restraining], or denying] the exercise of or the attempt to exercise, any right provided under th[e] [FMLA].” 29 U.S.C. § 2615(a)(1). To prevail under the interference theory, the employee must establish the following: (1) he is an “[eligible employee,” 29 U.S.C. § 2611(2); (2) the defendant is an “Employer,” 29 U.S.C. § 2611(4); (3) the employee was entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1); (4) the employee gave the employer notice of his intention to take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer denied the employee FMLA benefits to which he was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003). The employee must establish these elements by a preponderance of the evidence." }, { "docid": "1738620", "title": "", "text": "employer from “interfering] with, restraining], or denying] the exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1). Further, the FMLA provides that it is “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). An employee who believes her rights under the FMLA have been violated may file suit in federal court. 29 U.S.C. § 2617. An injured employee may receive damages and equitable relief for violation of 29 U.S.C. § 2615. 29 U.S.C. § 2617(a)(1). Interference Claim To state a prima facie claim of interference under the FMLA, a plaintiff must show that: (1) the plaintiff is an eligible employee; (2) the defendant is an employer covered by the FLMA; (3) the employee was entitled to FMLA leave; (4) the employee gave the employer notice of the employee’s intention to take leave; and (5) the employer denied the employee FMLA benefits to which the employee was entitled. Edgar v. JAC Products. Inc., 443 F.3d 501, 507 (6th Cir.2006); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir.2005). “If an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLAprotected leave, the employer has denied the employee a benefit to which he is entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 446 (6th Cir.2007). An employer is thus liable for interference if it uses FMLA leave as one factor in deciding to terminate an employee. Id. at 448. As Plaintiff reiterates, Drake made repeated complaints in writing about Plaintiffs need for FMLA leave. (Docket Entry No. 55 at 7). In addition, Drake refused to notify Plaintiff that she had been approved for FMLA leave, including one incident, wherein Plaintiff was required to pay an increased rate for airfare travel. (Id.). The court finds that there are questions of fact as to whether Drake’s discipline against Plaintiff was motivated by Plaintiff taking FMLA leave; as such, the court cannot grant summary judgment in" }, { "docid": "16012105", "title": "", "text": "supervisor approximately six months after Till’s termination. (PL’s Ex. 21, Maxwell Promotion Memo). This evidence questions whether Till’s position was truly eliminated through the RIF, as it appears that her position was filled at all times and that the number of security supervisors at Spectrum actually increased in 2010. For all these reasons, the Court denies Defendant’s motion for summary judgment as to Till’s claims under the ADA and Michigan’s PWDCRA. The Court now considers Till’s FMLA claims. B. Claims of FMLA Violations — Interference/Retaliation Till alleges that Spectrum violated the FMLA by denying her return to work after her FMLA leave (Count I). Till asserts claims of interference and retaliation under the FMLA. Till presents sufficient evidence to create genuine issues of material fact related to these claims. 1. Interference A plaintiff has an interference cause of action under the FMLA when an employer “interfered with, restraints] or den[ies] the exercise of or attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). To prevail on an interference claim, a plaintiff must show that (1) he or she is an eligible employee, (2) the defendant is an employer, (3) the employee was entitled to leave under the FMLA, (4) the employee gave the employer notice of the intention to take leave, and (5) the employer denied the employee FMLA benefits to which he or she was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003). Under the interference theory, “[t]he issue is simply whether the employer provided its employee the entitlements set forth in the FMLA — for example, a twelve-week leave or reinstatement after taking a medical leave.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 507-08 (6th Cir.2006). The employer’s intent is not a relevant part of the interference inquiry under § 2615, and the Court need not apply the McDonnell Douglas burden-shifting in such cases. Id. at 507-08. However, the entitlement to FMLA rights is not absolute, as an employer does not interfere with an employee if the employer had another legitimate reason to terminate the employee that" }, { "docid": "18019225", "title": "", "text": "evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two.” Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 593 (7th Cir.2008). As the district court noted, the parties do not dispute that Makowski meets the first and second requirements of the direct method. Regarding the third requirement, the district court found that without O’Gara’s statements, Makowski has no evidence of a direct connection between her statutorily protected activity and her termination; however, O’Gara’s statements are now admitted and provide the necessary causal connection. Makowski has sufficiently asserted a charge of retaliation under the FMLA; therefore, summary judgment for the defendants on Makowski’s FMLA retaliation claim is reversed. D. FMLA Interference Claim Finally, Makowski claims that the district court erred in failing to address her FMLA interference claim independently of her claim for retaliation and discrimination. We need not address this issue, because the admission of O’Gara’s statements also requires the reversal of the district court’s grant of summary judgment for the defendants on Makowski’s FMLA interference claim. Under the FMLA, an employer must not “interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA rights. 29 U.S.C. § 2615(a)(1). An employee on FMLA leave has the right to be restored to the same or an equivalent position that she had before she took leave. 29 U.S.C. § 2612. To prevail on an FMLA interference claim, a plaintiff must establish that: “(1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled.” Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993 (7th Cir.2010) (citing Burnett, 472 F.3d at 477). The parties do not dispute Makowski’s satisfaction of the first four requirements. The remaining issue is whether a jury could find that the defendants denied Makowski her right to reinstatement, an FMLA benefit to which" }, { "docid": "23697934", "title": "", "text": "that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). There are two types of claims under the FMLA: “(1) ‘interference’ or ‘(a)(1)’ claims in which the employee alleges that an employer denied or interfered with his substantive rights under the FMLA and (2) ‘retaliation’ or ‘(a)(2)’ claims in which the employee alleges that the employer discriminated against him for exercising his FMLA rights.” Stallings v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir.2006) (citing 29 U.S.C. § 2615(a)(1)-(2)). A In order to state a claim for interference under the FMLA, Phillips must have given notice of her need for FMLA leave. When leave is needed for an unforeseeable event, notice is required “as soon as practicable.” 29 C.F.R. § 825.302(a). “This ordinarily means at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.” Spangler, 278 F.3d at 852 (quoting 29 C.F.R. § 825.302(b)) (alterations omitted). However, “[a]n employee need not invoke the FMLA by name in order to put an employer on notice that the Act may have relevance to the employee’s absence from work.” Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000). The employer’s duties arise “when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.” Id. (quoting Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir.1999)). Whether an employee gave sufficient information to put his or her employer on notice that an absence may be covered by the FMLA is a question of fact for the jury. Browning, 178 F.3d at 1049. The district court erred in concluding as a matter of law that Phillips failed to provide enough information to put her employer on notice she may be in need of FMLA leave. Viewing the evidence in the light most favorable to Phillips, a reasonable jury could conclude Phillips satisfied the notice requirement because she put Appellees" } ]

[ { "docid": "21861921", "title": "", "text": "the district court incorrectly applied it. We disagree. The Fifth Circuit was faced with a question of ownership similar to that presented by the case at bar in Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir.1978). In order to determine the ownership of a shipwreck on the outer continental shelf — outside the territorial waters of the United States — the Fifth Circuit relied on the law of finds instead of the maritime salvage law. The court reasoned that because application of maritime salvage law was predicated on the fiction that the owner of the wrecked vessel was still in existence, it would be absurd to apply maritime salvage law to a vessel whose very location has been lost for centuries. Id. at 337. Instead, the court held that title to abandoned property vests in the person who reduces that property to his or her possession. Id. See also Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir.1981); Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456-57 (E.D.Va.1960). The common law of finds is the appropriate law to examine to determine the ownership of the shipwreck. The common law of finds generally assigns ownership of the abandoned property without regard to where the property is found. Two exceptions to that rule are recognized: First, when the abandoned property is embedded in the soil, it belongs to the owner of the soil; Second, when the owner of the land where the property is found (whether on or embedded in the soil) has constructive possession of the property such that the property is not “lost,” it belongs to the owner of the land. See Bishop v. Ellsworth, 91 Ill.App.2d 386, 234 N.E.2d 49 (1968); Allred v. Biegel, 240 Mo.App. 818, 219 S.W.2d 665 (1949); Flax v. Monticello Realty Co., 185 Va. 474, 39 S.E.2d 308 (1946); Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333 (1955). See also Elwes v. Briggs Gas Company, 33 Ch. 562. Both exceptions operate to give the United States" } ]

[ { "docid": "21584194", "title": "", "text": "Abandoned Vessel, 577 F.Supp. 597, 607. Actual possession of the res is not a prerequisite in an in rem action to the assertion of a claim to sovereign immunity. We next consider the “colorable claim” question. The Treasure Salvors plurality, albeit by negative implication, implied that if state officials had a “colorable basis on which to retain possession” of shipwrecked artifacts, a federal court would not have jurisdiction to resolve competing claims to the artifacts. Treasure Salvors, 458 U.S. at 682, 102 S.Ct. at 3313. The dissent would have barred the suit because the state itself purported to own the treasure and the very nature of the suit was to determine title to the property. Id. at 702, 102 S.Ct. at 3323. Perhaps the dissent would not require the claim to be colorable. Certainly, the dissent’s analysis of the colorability of the state’s claim to the treasure was far more lenient than that of the plurality. Compare id. at 694,102 S.Ct. at 3319 (plurality) with id. at 712, 102 S.Ct. at 3328 (dissent). We assume that a colorable claim is required. We hold that such a claim will suffice. Therefore, if Guam has a color-able claim to the two shipwrecks, and has not consented to federal jurisdiction, the district court lacked jurisdiction to resolve the parties’ claims to the wrecks and the case should be dismissed. See Subaqueous, 577 F.Supp. at 607; see also Maritime Underwater Surveys, 717 F.2d at 8. But see Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F.Supp. 923, 924 (E.D.N.C.1987). C. Congress has granted Guam title and control over the submerged lands off Guam’s coast. 48 U.S.C. § 1705 (1982). Congress modeled section 1705 after a similar statute giving coastal states control over lands within three miles of shore. 43 U.S.C. § 1311 (1982). Section 1311 is part of the Submerged Lands Act. Since this action was commenced, Congress enacted the Abandoned Shipwreck Act of 1987. Pub.L. 100-298, 102 Stat. 432 (1988). The 1987 Act granted the states and territories title to all shipwrecks embedded in the submerged lands of the state or" }, { "docid": "1716422", "title": "", "text": "in the shipwrecks by making clear that the lake bed on which the shipwrecks lie belongs to the State. With ownership of the lake bed established, the common law of finds gives the State a colorable claim of ownership to the shipwrecks found on that lake bed. The law of finds generally provides that the first finder to take possession of lost or abandoned property with the intention to exercise control over it acquires title. See Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377, 1386 (S.D.Fla.1988); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 804 (S.D.Ga.1984), aff'd mem., 775 F.2d 302 (11th Cir.1985). An exception applies, however, to vest title in the owner of the land if the property is found embedded in the land. Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; Chance, 606 F.Supp. at 805. Abandoned shipwrecks are generally considered to be “embedded” in the submerged land. See Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; ^ Chance, 606 F.Supp. at 805-07. In this case, the State has contended that the shipwrecks are embedded in submerged land within the State’s boundaries. Plaintiff has not contended otherwise, but argues that the State has no knowledge of whether the wrecks are embedded. In ruling on the State’s motion to dismiss, the Court cannot determine title, but may only determine whether the State’s claim of ownership is colorable. Considering the cases cited above, the shipwrecks are likely embedded in submerged lands which the State owns pursuant to the Submerged Lands Act, and the embeddedness exception of the common law of finds gives the State a colorable claim of ownership in the shipwrecks. c. Abandoned Shipwreck Act The State also contends that it has a colorable claim to ownership in the shipwrecks pursuant to the Abandoned Shipwreck Act, 43 U.S.C. § 2101 et seq. (“the ASA”). The heart of the ASA is 43 U.S.C. § 2105, which provides in part: (a)" }, { "docid": "1716421", "title": "", "text": "of the Lady Elgin and the Seabird, it does not purport to give the State an ownership interest in those remains. b. Common Law and the Submerged Lands Act The Submerged Lands Act, 43 U.S.C. § 1311, makes clear that the states have title to all lands and natural resources beneath navigable waters within the boundaries of the respective states. The State relies in part on this Act itself for its ownership claim, contending that the shipwrecks are “natural resources.” The Court is unwilling to engage in such a stretch of the meaning of “natural resource;” a shipwreck is not “natural.” Cf. Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel (“Cobb Coin I”), 525 F.Supp. 186, 214-16 (S.D.Fla.1981) (Act applies only to natural resources and does not give states authority to assert claims over shipwrecks); Commonwealth v. Maritime Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549, 552-53 (1988) (Submerged Lands Act did not give state title to shipwrecks). The Act does, however, prove instrumental in giving the State a colorable ownership interest in the shipwrecks by making clear that the lake bed on which the shipwrecks lie belongs to the State. With ownership of the lake bed established, the common law of finds gives the State a colorable claim of ownership to the shipwrecks found on that lake bed. The law of finds generally provides that the first finder to take possession of lost or abandoned property with the intention to exercise control over it acquires title. See Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Jupiter Wreck, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 691 F.Supp. 1377, 1386 (S.D.Fla.1988); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 804 (S.D.Ga.1984), aff'd mem., 775 F.2d 302 (11th Cir.1985). An exception applies, however, to vest title in the owner of the land if the property is found embedded in the land. Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; Chance, 606 F.Supp. at 805. Abandoned shipwrecks are generally considered to be “embedded” in the" }, { "docid": "2521872", "title": "", "text": "Abandoned Vessel, 577 F.Supp. 597 (D.Md.1983); cf., Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 898-901 (5th Cir.) (waiver of Eleventh Amendment immunity), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F.Supp. 923, 926 (E.D.N.C.1987); Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 803-04 (S.D.Ga.1984) (waiver of Eleventh Amendment immunity), aff'd, 775 F.2d 302 (11th Cir.1985). 5. In light of this authority, JWI has challenged the basis on which the State has asserted title to the property. JWI contends that the law relied upon by the State is pre-empted by federal maritime law. Specifically, Plaintiff relies on Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981) (Cobb Coin I), for the proposition that “Florida’s licensing scheme and the criminal penalties imposed for noncompliance therewith conflict impermissibly with federal maritime principles____” Id. at 200. JWI’s invocation of the pre-emption doctrine must fail for two reasons. First, under controlling precedent in this Circuit, the resolution of a claim to ownership and full possession of an historic shipwreck must be based on the application of the common law of finds. Second, even assuming arguendo that the law of finds does not apply here, the state regulatory scheme would not be preempted by federal maritime principles. 6. As stated by the First Circuit, “there is a generic question as to when the law of finds ... applies to property retrieved from the ocean floor, and when the law of salvage pertains____ [T]he better-reasoned authorities agree that the law of finds may appropriately be utilized.” Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987) (citations omitted). The former Fifth Circuit Court of Appeals has held that it is appropriate to apply the law of finds rather than the law of salvage for two general reasons. First, the court recognized that salvage law is premised on the notion that the owner of property abandoned at sea has not been" }, { "docid": "1716420", "title": "", "text": "do not grant the State an ownership interest in the shipwrecks. Unlike the statutes quoted above, they do not vest title in the State. For instance, the Rivers, Lakes and Streams Act provides in part: The Department of Transportation shall upon behalf of the State of Illinois, have jurisdiction and supervision over all of the rivers and lakes of the State of Illinois, wherein the State of Illinois or the people of the State have any rights or interests.... Ill.Rev.Stat. ch. 19 H 52. By its terms, this statute does not grant ownership to the State over anything which the State does not already own; it merely describes the powers and duties of a particular state agency. The State also relies on the Human Grave Protection Law, Ill.Rev.Stat. ch. 127 §§ 2661 et seq. This statute contains no reference to ownership, title or possession. It merely provides for civil and criminal penalties against those who disturb human skeletal remains and grave artifacts. Whether or not the statute can be construed to apply to the remains of the Lady Elgin and the Seabird, it does not purport to give the State an ownership interest in those remains. b. Common Law and the Submerged Lands Act The Submerged Lands Act, 43 U.S.C. § 1311, makes clear that the states have title to all lands and natural resources beneath navigable waters within the boundaries of the respective states. The State relies in part on this Act itself for its ownership claim, contending that the shipwrecks are “natural resources.” The Court is unwilling to engage in such a stretch of the meaning of “natural resource;” a shipwreck is not “natural.” Cf. Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel (“Cobb Coin I”), 525 F.Supp. 186, 214-16 (S.D.Fla.1981) (Act applies only to natural resources and does not give states authority to assert claims over shipwrecks); Commonwealth v. Maritime Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549, 552-53 (1988) (Submerged Lands Act did not give state title to shipwrecks). The Act does, however, prove instrumental in giving the State a colorable ownership interest" }, { "docid": "4828282", "title": "", "text": "ownership interest in the ship; a salvor receives a salvage award, but not title to the ship.” Fairport, 177 F.3d at 498 (citing Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir.1981)). If a salvor satisfies three elements for a valid salvage claim, including (1) maritime peril; (2) voluntary service rendered without an existing duty or contract; and (3) success, such that the salvor’s efforts contributed to saving the salvaged property, the court may order the vessel’s owner to pay the salvor a salvage award. Zych, 19 F.3d at 1141. With regard to the law of finds, abandoned property does not have an owner. Ray Andrews Brown, The Law on Personal Property, § 8 (2d ed.1955). The common law of finds, expresses “the ancient and honorable principle of ‘finders, keepers.’ ” Martha’s Vineyard Scuba HQ v. Unidentified Vessel, 833 F.2d 1059, 1065 (1st Cir.1987). “Typically, the finder of the abandoned property acquires title to it. But, the law of finds contains an exception to this general rule. When the abandoned property is embedded in the land, it belongs to the owner of the land.” Zych, 19 F.3d at 1141 n. 2 (citing Klein v. Unidentified Wreck & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985)). There has, however, been some disagreement among the courts as to whether application of the law of finds or salvage to a shipwreck is proper. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel Nuestra Senora de Atocha, 569 F.2d 330, 337 (5th Cir.1978) (application of salvage law to shipwreck “stretches a fiction to absurd lengths”); and Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (rejecting maritime law and applying common law of finds to determine ownership of abandoned shipwreck). “Where the owner has abandoned the ship, however, recent doctrine applies the law of finds, vesting title in the finder of the ship.” Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel, Captain Lawrence, 177 F.3d 491, 498 (6th Cir.1999) (citing cases). As such, whether the sunk en ship was abandoned" }, { "docid": "1716462", "title": "", "text": "improvements, and natural resources.... . Plaintiff does not expressly state that the shipwreck is located within the State’s boundaries. However, the complaint does assert that the shipwreck is located “within the territorial jurisdiction of this Court.\" Plaintiff also has not responded to the State’s assertion that it is undisputed that the shipwreck lies within the State’s boundaries. . It might be contended that the common law of salvage applies rather than the law of finds. Pursuant to the law of salvage, the provision of salvage services to an imperiled vessel gives rise to a maritime lien. In order for the law of salvage to apply even when a vessel is abandoned, it is presumed that the property has not been divested of title. The property is sold by the court, and the salvor receives a portion of the proceeds as compensation. See Chance, 606 F.Supp. at 804. The prevailing view is that in the context of historic, abandoned shipwrecks, the law of finds applies rather than the law of salvage. See Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Jupiter Wreck, 691 F.Supp. at 1385; Chance, 606 F.Supp. at 804; Subaqueous, 577 F.Supp. at 611. A salvage award provides an incentive to salvors and thus helps to protect the owner of the property against the loss of that property. See Jupiter Wreck, 691 F.Supp. at 1388. To apply the law of salvage, however, by creating the fiction of continuing ownership even after the property has long been abandoned is rather absurd, especially when the law of finds provides a rational method for determining rights in the property. See Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978); Jupiter Wreck, 691 F.Supp. at 1385. In any event, it appears that application of the law of salvage would often lead to the same result. Under the law of salvage, the owner of the vessel may reject the salvage services, in which event the salvor is not entitled to an award. See Platoro, 695 F.2d at" }, { "docid": "4027723", "title": "", "text": "so long lost that time can be presumed to have eroded any realistic claim of original title, and (2) those articles are now in hand, having been actually recovered, the better-reasoned authorities agree that the law of finds may appropriately be utilized. E.g., Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Treasure Salvors III, 640 F.2d at 567; Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F.Supp. 801, 804 (S.D.Ga.1984), aff'd mem., 775 F.2d 302 (11th Cir.1985); Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456 (E.D.Va.1960). Without question, the Republic and its cargo had been long forsaken when discovered by Mavis and thereafter called to Marshall-ton’s attention. After petitioner brought its action in rem in the district court, no person or firm appeared to assert any overall claim of ownership. And the intervenor had found the property and transported it to the court for the purpose of establishing its title. In such circumstances, given the passage of so many decades after the sinking, we think the district court did not err in deciding to apply the law of finds. Nor can the district court be faulted for its further determination that Marshall-ton — the first finder lawfully to appropriate the abandoned artifacts, take dominion over them, and return them to land with the aim of acquiring ownership rights — had the prime claim to the articles. See Treasure Salvors III, 640 F.2d at 571; Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337 & nn. 11-12 (5th Cir.1978) (Treasure Salvors I); Chance, 606 F.Supp. at 804; Rickard v. Pringle, 293 F.Supp. 981, 984 (E.D.N.Y.1968); cf. Klein, 758 F.2d at 1514 (recognizing principle, but discussing exception where wreck embedded in soil owned by third party). See also 3A M. Norris, Benedict on Admiralty: The Law of Salvage, § 158 at 11-14 (7th ed. 1983). But, possession alone is not enough; if it were, buccaneering would again flourish on the high seas. The finder must have gained possession of the “treasure” fairly" }, { "docid": "8076800", "title": "", "text": "Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (English ship sunk in eighteenth century); Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir.1978) (Spanish galleon sunk in 1622); Sub-Sal, Inc. v. The DeBraak, No. 84-296, 1992 WL 39050, at * 1-2, 1992 U.S. Dist. LEXIS 2461, at *6-7 (D.Del.1992) (British ship sunk in 1798); Zych v. Unidentified, Wrecked and Abandoned Vessel, 746 F.Supp. 1334, 1343-44 n. 12 (N.D.Ill.1990), vacated, 941 F.2d 525 (7th Cir.1991) (steamer sunk in 1860); Jupiter Wreck, Inc. v. Unidentified Sailing Vessel, 691 F.Supp. 1377, 1385 (S.D.Fla.1988) (Spanish galleon sunk in seventeenth century); Indian River Recovery Co. v. The China, 645 F.Supp. 141, 144 (D.Del.1986) (ship sunk in nineteenth century); Chance v. Certain Artifacts Found and Salvaged from the NASHVILLE, 606 F.Supp. 801, 804 (S.D.Ga.1984) (Confederate raider sunk in 1863); Wiggins v. 1100 Tons, More or Less, of Italian Marble, 186 F.Supp. 452, 456 (E.D.Va.1960) (Norwegian ship sunk in 1894); Commonwealth v. Maritime Underwater Surveys, Inc., 403 Mass. 501, 531 N.E.2d 549, 552 (1988) (pirate ship sunk in 1717); see also Schoenbaum, Admiralty and Maritime Law § 15-7, p. 514 (1987) (“In virtually all of the treasure salvage cases involving wrecks of great antiquity, the law of finds, not salvage, is appropriate ... ”) Even Benedict on Admiralty, from which much of the majority’s opinion appears to have been derived, would apply finds law to “long lost wrecks.” See 3A Norris, Benedict on Admiralty, § 158, p. 11-17 (1992). Modern courts have rejected application of the law of salvage in the context of long lost wrecks because, under the law of salvage, even an abandonment does not divest the owner of title. See 3A Norris, Benedict on Admiralty, § 150, p. 11-1 (1992) (“Should a vessel be abandoned without hope of recovery or return, the right of property still remains in her owner.”); Sub-Sal, Inc. v. The DeBraak, No. 84-296, 1992 WL 39050, at * 1-2, 1992 U.S. Dist. LEXIS 2461, at * 6-7 (D.Del.1992) (“Cognizant that the application of salvage law involves a" }, { "docid": "9781103", "title": "", "text": "assumes no other basis for federal jurisdiction can be found. The parties are not alleged to be diverse. The ASA itself gives finders no cause of action or right to relief. . The elimination of the law of salvage as applied to embedded shipwrecks in particular would destroy a finder’s ability to bring a federal in rem admiralty action. In rem jurisdiction exists when a maritime lien arises. Fed.R.Civ.P. C(l) (Supplemental Rules of Certain Admiralty and Maritime Claims). It is the salvage claim that gives rise to a lien, for the salvage award is secured by the ship itself. Norris, 3A Benedict on Admiralty § 143 (1991). . The law of finds developed at common law but has come to be considered a maritime concept. S.ee Owen, The Abandoned Shipwreck Act of 1987: Goodbye to Salvage in the Territorial Sea, 19 J. of Mar.L. & Comm. 499, 510 (1988). Compare Subaqueous, 577 F.Supp. at 611 (referring to \"maritime law of finds”); Treasure Salvors, 569 F.2d at 336 (law of finds is adjunct to salvage law), with Jupiter Wreck, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 691 F.Supp. 1377, 1385 (S.D.Fla.1988) (\"resolution to a claim of ownership * * * of an historic shipwreck must be based on application of the common law of finds”); Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (\"The common law of finds generally assigns ownership of the abandoned property * * * ’’). Congress seems to have assumed that the law of finds was indeed an aspect of admiralty law. See, e.g., House Report at 366 (\"Aspects of admiralty law most applicable [to historic wrecks] are the ‘Law of Finds’ * * * 'and the Law of Salvage.’ ”). . Recently the Supreme Court has implied that the uniformity doctrine is only properly invoked to strike down state legislation when it purports to regulate commercial navigation, \"suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to their crews.” Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36" }, { "docid": "9781102", "title": "", "text": "determined eligible for inclusion in the National Register of Historic Places. This makes it apparent that the notice requirement of Section 6(b) refers only to shipwrecks qualifying for ASA treatment under Section 6(a)(3), those lying on submerged lands but eligible for inclusion in the National Register. . \"Embeddedness” in the ASA is to be “consistent with the recognized exception from the law of finds for shipwrecks embedded in submerged lands of a state.” House Report at 375-376. As used in the context of the law of finds, embed-dedness is a factual question to be established by evidence. See Chance v. Certain Artifacts Found & Salvaged from The Nashville, 606 F.Supp. 801, 807 (S.D.Ga.1984) (court finds “vessel is firmly attached to river bottom” after hearing evidence from expert diver), affirmed without opinion, 775 F.2d 302 (11th Cir.1985); Klein v. Unidentified, Wrecked & Abandoned Sailing Vessel, 568 F.Supp. 1562, 1566 (S.D.Fla.1983) (court finds vessel embedded after hearing uncontradicted testimony and viewing film indicating wreck is substantially buried in land), affirmed, 758 F.2d 1511 (11th Cir.1985). . This assumes no other basis for federal jurisdiction can be found. The parties are not alleged to be diverse. The ASA itself gives finders no cause of action or right to relief. . The elimination of the law of salvage as applied to embedded shipwrecks in particular would destroy a finder’s ability to bring a federal in rem admiralty action. In rem jurisdiction exists when a maritime lien arises. Fed.R.Civ.P. C(l) (Supplemental Rules of Certain Admiralty and Maritime Claims). It is the salvage claim that gives rise to a lien, for the salvage award is secured by the ship itself. Norris, 3A Benedict on Admiralty § 143 (1991). . The law of finds developed at common law but has come to be considered a maritime concept. S.ee Owen, The Abandoned Shipwreck Act of 1987: Goodbye to Salvage in the Territorial Sea, 19 J. of Mar.L. & Comm. 499, 510 (1988). Compare Subaqueous, 577 F.Supp. at 611 (referring to \"maritime law of finds”); Treasure Salvors, 569 F.2d at 336 (law of finds is adjunct to salvage law)," }, { "docid": "3774500", "title": "", "text": "with an ownership interest in the tokens, we need not discuss the Forest Service regulations, relied upon by the government, which go beyond ARPA and attempt to define as “archaeological resources,” prohibited from excavation, artifacts that are at least 50 years old. See 36 C.F.R. §§ 261.2, 261.9(g). The asserted conflict between the Forest Service regulations and the ARPA does not need to be resolved in this case. C. Ownership and the Federal Common Law of Finds The district court concluded not only that the ARPA did not convey to Shivers an ownership interest in the Aldridge tokens, but also that in the absence of express or statutory title transfer, the federal common law of finds dictates that the United States, not Shivers, owns the tokens. The federal common law of finds, including certain critical exceptions, is pertinent to this case. As the Eleventh Circuit explained, [t]he common law of finds generally assigns ownership of the abandoned property without regard to where the property is found. Two exceptions to the rule are recognized: First, when the abandoned property is embedded in the soil, it belongs to the owner of the soil; Second, when the owner of the land where the property is found (whether on or embedded in the soil) has constructive possession of the property such that the property is not ‘lost,’ it belongs to the owner of the land. Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (emphasis added). In Klein, a vessel submerged beneath the waters of Biscayne National Park, Florida, had been rediscovered and salvaged by a private diver. Holding that the wreck was property of the government, not the diver, the court emphasized that the “ship is buried in the soil. The soil belongs to the United States as part of its national park system.... When the United States acquired title to the land from Florida in 1973, it also acquired title to the shipwrecks embedded in that soil.... Thus the United States has never legally lost the subject shipwreck and, as the owner of the land on and/or" }, { "docid": "1716423", "title": "", "text": "submerged land. See Klein, 758 F.2d at 1514; Jupiter Wreck, 691 F.Supp. at 1386; ^ Chance, 606 F.Supp. at 805-07. In this case, the State has contended that the shipwrecks are embedded in submerged land within the State’s boundaries. Plaintiff has not contended otherwise, but argues that the State has no knowledge of whether the wrecks are embedded. In ruling on the State’s motion to dismiss, the Court cannot determine title, but may only determine whether the State’s claim of ownership is colorable. Considering the cases cited above, the shipwrecks are likely embedded in submerged lands which the State owns pursuant to the Submerged Lands Act, and the embeddedness exception of the common law of finds gives the State a colorable claim of ownership in the shipwrecks. c. Abandoned Shipwreck Act The State also contends that it has a colorable claim to ownership in the shipwrecks pursuant to the Abandoned Shipwreck Act, 43 U.S.C. § 2101 et seq. (“the ASA”). The heart of the ASA is 43 U.S.C. § 2105, which provides in part: (a) United States title The United States asserts title to any-abandoned shipwreck that is— (1) embedded in submerged lands of a State.... (2) embedded in coralline formations protected by a State on submerged lands of a State; or (3) on submerged lands of a State and is included in or determined eligible for inclusion in the National Register. (b) Notice of shipwreck location; eligibility determination for inclusion in National Register of Historic Places The public shall be given adequate notice of the location of any shipwreck to which title is asserted under this section. The Secretary of the Interior, after consultation with the appropriate State Historic Preservation Officer, shall make a written determination that an abandoned shipwreck meets the criteria for eligibility for inclusion in the National Register of Historic Places under clause (a)(3). (c)Transfer of title to States The title of the United States to any abandoned shipwreck asserted under subsection (a) of this section is transferred to the State in or on whose submerged lands the shipwreck is located. Also significant for purposes of" }, { "docid": "2521874", "title": "", "text": "divested of title. Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978) (Treasure Salvors I); see also Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Chance, 606 F.Supp. at 804; Subaquaeous Explorations, 577 F.Supp. at 611; Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562, 1565 (S.D.Fla.1983), aff'd, 758 F.2d 1511 (11th Cir.1985). Yet, it found that “[disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths.” Treasure Salvors I, 569 F.2d at 337. Second, application of the laws of finds and salvage do not produce inconsistent results. If the owner of the vessel is actually in existence a salvage award is meant to fully compensate the salvor for his efforts, and “may include the entire derelict property.” Id. at 337 (footnote omitted). But, if the property has actually been abandoned by the owner, then the law of finds rewards the first finder with title and possession. Courts have applied the law of finds to cases concerning historic shipwrecks where the res lay outside of state territorial waters, see Klein, 568 F.Supp. 1562, 1565-68 (S.D.Fla.1983), aff'd, Klein, 758 F.2d at 1514; Treasure Salvors, Inc. v. Abandoned Sailing Vessel Believed To Be The Nuestra Señora de Atocha, 408 F.Supp. 907, 909 (S.D.Fla.1976), aff'd, 569 F.2d 330, 337 (5th Cir.1978), or when the state has waived its Eleventh Amendment immunity. See, e.g., Chance, 606 F.Supp. at 804-08. Accordingly, the present case presents a somewhat different factual scenario because the res is on state territory and there has been no waiver. Nonetheless we remain convinced that even if the Eleventh Amendment did not bar adjudication of title in this case, by application of the law of finds, JWI has no likelihood of success on its claim for title or full possession. 7.The State’s claim to title of the res is based on federal and state statutes, as well as the Florida Constitution. The Florida Constitution delineates the State boundaries and declares" }, { "docid": "2521873", "title": "", "text": "precedent in this Circuit, the resolution of a claim to ownership and full possession of an historic shipwreck must be based on the application of the common law of finds. Second, even assuming arguendo that the law of finds does not apply here, the state regulatory scheme would not be preempted by federal maritime principles. 6. As stated by the First Circuit, “there is a generic question as to when the law of finds ... applies to property retrieved from the ocean floor, and when the law of salvage pertains____ [T]he better-reasoned authorities agree that the law of finds may appropriately be utilized.” Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987) (citations omitted). The former Fifth Circuit Court of Appeals has held that it is appropriate to apply the law of finds rather than the law of salvage for two general reasons. First, the court recognized that salvage law is premised on the notion that the owner of property abandoned at sea has not been divested of title. Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978) (Treasure Salvors I); see also Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Chance, 606 F.Supp. at 804; Subaquaeous Explorations, 577 F.Supp. at 611; Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562, 1565 (S.D.Fla.1983), aff'd, 758 F.2d 1511 (11th Cir.1985). Yet, it found that “[disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths.” Treasure Salvors I, 569 F.2d at 337. Second, application of the laws of finds and salvage do not produce inconsistent results. If the owner of the vessel is actually in existence a salvage award is meant to fully compensate the salvor for his efforts, and “may include the entire derelict property.” Id. at 337 (footnote omitted). But, if the property has actually been abandoned by the owner, then the law of finds rewards the first finder" }, { "docid": "4828283", "title": "", "text": "the abandoned property is embedded in the land, it belongs to the owner of the land.” Zych, 19 F.3d at 1141 n. 2 (citing Klein v. Unidentified Wreck & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985)). There has, however, been some disagreement among the courts as to whether application of the law of finds or salvage to a shipwreck is proper. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel Nuestra Senora de Atocha, 569 F.2d 330, 337 (5th Cir.1978) (application of salvage law to shipwreck “stretches a fiction to absurd lengths”); and Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (rejecting maritime law and applying common law of finds to determine ownership of abandoned shipwreck). “Where the owner has abandoned the ship, however, recent doctrine applies the law of finds, vesting title in the finder of the ship.” Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel, Captain Lawrence, 177 F.3d 491, 498 (6th Cir.1999) (citing cases). As such, whether the sunk en ship was abandoned determined which law applied, as well as who owns the ship. Fairport, 177 F.3d at 498. Further, “admiralty courts recognize a presumption against finding abandonment” to protect the property rights of owners. Id. The ASA, enacted in 1987, displaces the maritime laws of finds and salvage with regard to any abandoned and embedded shipwreck. 43 U.S.C. § 2106(a) (“the law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies.”). Specifically, under the ASA, The United States asserts title to any abandoned shipwreck that is: (1) embedded in submerged lands of a State; (2) embedded in coralline formations protected by a State on submerged lands of a State or; (3) on submerged lands of a State and is included or determined eligible for inclusion in the National Register. 43 U.S.C. § 2105(a). Such title of the United States to an abandoned shipwreck is then “transferred to the State in or on whose submerged lands the shipwreck is located.” 43 U.S.C. § 2105(c). Accordingly, provided" }, { "docid": "21584197", "title": "", "text": "cites Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 339 (5th Cir.1978), as support for the proposition that the Submerged Lands Act does not cover shipwrecks, and, therefore, Guam does not have a colorable claim to the wrecks. This characterization of Abandoned Sailing Vessel is inaccurate. The case involved interpretation of the United States’ rights under the Continental Shelf Act rather than interpretation of the Submerged Lands Act. 569 F.2d at 339-40. Marx also cites the Cobb Coin cases. Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186, 189-90 (S.D.Fla.1981) (Cobb Coin I) and Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 555 n. 14 (S.D.Fla.1982) (Cobb Coin II). In the Cobb Coin cases, Judge King made a frontal attack on the State of Florida’s attempt to control the exploration and recovery of historical shipwrecks off the state’s coast. The most striking part of the Cobb Coin decisions is Judge King’s conclusion that the Florida Act was invalid. One of Judge King’s colleagues in the Southern District of Florida, however, has rejected the Cobb Coin cases. Jupiter Wreck, 691 F.Supp. at 1389. And other courts which have considered the question have ruled that similar submerged lands acts do give states at least a colorable claim to wrecks within their boundaries. See, e.g., Maritime Underwater Surveys, 717 F.2d 6, 7-8; Subaqueous, 577 F.Supp. 597. The First Circuit in Maritime Underwater Surveys held that Massachusetts had a colorable claim sufficient to deny the district court jurisdiction over a shipwreck one-quarter mile off its shore where its claim was based upon a Massachusetts statute asserting title over underwater archeological resources, and upon 43 U.S.C. § 1311 of the Submerged Lands Act. The court indicated that Massachusetts’ claim to the shipwreck was “at least colorable.” Maritime Underwater Surveys, 717 F.2d at 7-8. The Maritime Underwater Surveys case is directly on point. Guam’s Underwater Historic Property Act is similar to the Massachusetts statute in Maritime Underwater Surveys. See Guam Gov’t Code §§ 13985.29-35 (Supp.1974). And the federal statute" }, { "docid": "1716463", "title": "", "text": "Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987); Jupiter Wreck, 691 F.Supp. at 1385; Chance, 606 F.Supp. at 804; Subaqueous, 577 F.Supp. at 611. A salvage award provides an incentive to salvors and thus helps to protect the owner of the property against the loss of that property. See Jupiter Wreck, 691 F.Supp. at 1388. To apply the law of salvage, however, by creating the fiction of continuing ownership even after the property has long been abandoned is rather absurd, especially when the law of finds provides a rational method for determining rights in the property. See Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978); Jupiter Wreck, 691 F.Supp. at 1385. In any event, it appears that application of the law of salvage would often lead to the same result. Under the law of salvage, the owner of the vessel may reject the salvage services, in which event the salvor is not entitled to an award. See Platoro, 695 F.2d at 901-02. In enacting § 2106, Congress specifically rejected salvage services on the vessels subject to the ASA. Furthermore, it is reasonable to interpret state preservation statutes which limit the ability of divers and salvors to explore or excavate abandoned shipwrecks as expressing a rejection of salvage services. . Section 2105(b) provides: The public shall be given adequate notice of the location of any shipwreck to which title is asserted under this section. The Secretary of the Interior, after consultation with the appropriate State Historic Preservation Officer, shall make a written determination that an abandoned shipwreck meets the criteria for eligibility for inclusion in the National Register of Historic Places under clause (a)(3). (Emphasis added.) It might be argued that the ASA does not apply to a given shipwreck if the United States or the applicable state has not \"asserted” title to the wreck nor given any public notice of its location. Plaintiff, however, does not raise this issue and the Court thus does not reach it. . No congressional enactment has yet been struck down" }, { "docid": "3774501", "title": "", "text": "the abandoned property is embedded in the soil, it belongs to the owner of the soil; Second, when the owner of the land where the property is found (whether on or embedded in the soil) has constructive possession of the property such that the property is not ‘lost,’ it belongs to the owner of the land. Klein v. Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985) (emphasis added). In Klein, a vessel submerged beneath the waters of Biscayne National Park, Florida, had been rediscovered and salvaged by a private diver. Holding that the wreck was property of the government, not the diver, the court emphasized that the “ship is buried in the soil. The soil belongs to the United States as part of its national park system.... When the United States acquired title to the land from Florida in 1973, it also acquired title to the shipwrecks embedded in that soil.... Thus the United States has never legally lost the subject shipwreck and, as the owner of the land on and/or water in which the shipwreck is located, it owns the shipwreck.” Id. at 1514 (emphasis added). Similarly, the Al-dridge tokens excavated by Shivers were buried in the soil of the Angelina National Forest. As in Klein, this soil belongs to the United States, and with it the embedded tokens under the first exception to the federal common law of finds discussed in Klein. Shivers does not challenge this interpretation of the federal common law of finds. Indeed, his only retort is that the common law of finds is inapplicable because Congress expressly provided in § 470kk(b) of the ARPA that private collectors enjoy ownership of the non-archaeological resources that they discover on public lands. As already discussed, this contention is indefensible. The district court correctly held that the United States owns the tokens that Shivers discovered. CONCLUSION For the foregoing reasons, the judgment of the district court denying Shivers’s 41(e) motion for the return of the Aldridge tokens is AFFIRMED. . These figures are taken from a report relied upon by the district court and" }, { "docid": "9781101", "title": "", "text": "the ASA precludes reference to the law of finds where the ASA applies. . The United States retains title to historic wrecks located on public lands of the United States. 43 U.S.C. § 2105(d). .Neither party contends that the Seabird’s site has been declared eligible for inclusion in the National Register of Historic Places so as to subject the Seabird to the ASA under Section 6(a)(3). Though we agree with plaintiff that a specific finding of embeddedness is necessary for Section 6(a)(1) of the ASA to apply, we reject plaintiffs argument that the United States must give public notice of all wrecks to which it purports to be asserting title under Section 6(a)(1) for the assertion of title to be valid. The first sentence of Section 6(b) requires the United States to give \"adequate notice of the location of any shipwreck to which title is asserted under this section.” However, Section 6(b) qualifies Section 6(a)(3), not Section 6(a)(1) or (2). Section 6(b), in its second sentence, sets out the means by which a wreck is determined eligible for inclusion in the National Register of Historic Places. This makes it apparent that the notice requirement of Section 6(b) refers only to shipwrecks qualifying for ASA treatment under Section 6(a)(3), those lying on submerged lands but eligible for inclusion in the National Register. . \"Embeddedness” in the ASA is to be “consistent with the recognized exception from the law of finds for shipwrecks embedded in submerged lands of a state.” House Report at 375-376. As used in the context of the law of finds, embed-dedness is a factual question to be established by evidence. See Chance v. Certain Artifacts Found & Salvaged from The Nashville, 606 F.Supp. 801, 807 (S.D.Ga.1984) (court finds “vessel is firmly attached to river bottom” after hearing evidence from expert diver), affirmed without opinion, 775 F.2d 302 (11th Cir.1985); Klein v. Unidentified, Wrecked & Abandoned Sailing Vessel, 568 F.Supp. 1562, 1566 (S.D.Fla.1983) (court finds vessel embedded after hearing uncontradicted testimony and viewing film indicating wreck is substantially buried in land), affirmed, 758 F.2d 1511 (11th Cir.1985). . This" } ]

[ { "docid": "19929163", "title": "", "text": "OPINION IRENAS, Senior United States District Judge. Richard Martin Pulyer (hereafter “Pu-lyer” or “Defendant”), appeals his sentence of 78 months imposed after he pleaded guilty to 26 counts of mail fraud (in violation of 18 U.S.C. § 1341) and access device fraud (in violation of 18 U.S.C. § 1029(a)(2)). Pulyer’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), along with a Motion to Withdraw as Counsel, while Pulyer has filed a pro se brief in support of his appeal. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over the sentencing order pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we will affirm the sentence and grant counsel’s request to withdraw. I. Pursuant to a written plea agreement with the United States, Pulyer pled guilty to 26 counts of mail fraud and access device fraud on June 7, 2004. The Second Revised Pre-sentencing Investigation Report recommended a Sentencing Guideline offense level of 24, including enhancements of four points because the offense involved fifty or more victims and two points for abusing a position of trust. (App. at pp. 148-49). The Probation Department also recommended a criminal history category of III. (App. at p. 151). Although the plea was taken before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the discretion granted to the District Court by this decision applied to Pulyer’s sentencing, which occurred thereafter. On January 27, 2005, Pulyer filed a Notice of Motion for Downward Departure, in which U.S.S.G. § 5K2.13 (Diminished Capacity) was cited as the sole basis for the departure. (App. at p. 116). However, the brief in support of this motion argued, inter alia, that (i) the offense level calculations, including those for number of victims, loss amount, and abuse of position of trust, were erroneous; (ii) the criminal history score was overstated; (iii) the loss amount overstated the seriousness of the offense (Application Note 10 to U.S.S.G. § 2F1.1, since deleted); (iv) a" } ]

[ { "docid": "21389883", "title": "", "text": "to grant the two-level minor-role reduction. It followed the PSR’s recommendations to adjust the offense levels for acceptance of responsibility (minus 3) and maintaining a premises for drug distribution (plus 2). A total offense level of 33 (34 - 3 + 2) and a criminal history-category of II combined to establish a range of 151-188 months under the 2011 Guidelines Sentencing Manual, which was then in effect. Based on Mr. Kurtz’s personal history, the district court determined this range was too high and varied downward to a 78-month sentence. Mr. Kurtz-did not appeal that sentence. B. Motion to .Reduce Sentence On February 17, 2015, Mr. Kurtz filed a pro se motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). He argued Amendment 782 to the Guidelines, which went into effect on November 1, 2014, entitled him to a two-level reduction in his base offense level. Starting from the total offense level of 27 in the PSR, Mr. Kurtz contended his amended total offense level should be 25, which corresponds to a Guidelines range of 63-78 months. He therefore asked the district court to reduce his sentence to 63 months. The Government filed a response, arguing Mr. Kurtz was not statutorily eligible for a § 3582(c)(2) reduction. On August 19, 2015, the district court denied Mr. Kurtz’s motion. He filed a timely notice of appeal on September 1, 2015. See Fed. R-App. 4(b)(l)(A)(i). C. Anders Brief We appointed the Féderal Public Defender’s Office for the District of New Mexico to represent Mr. Kurtz on appeal. On November 25, 2015, Mr. Kurtz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential ap-pealable issues based on the record. The client may then choose to submit arguments- to the court. The Court must then conduct a full examination of the record to determine" }, { "docid": "23217145", "title": "", "text": "TYMKOVICH, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. Eduardo Galarza-Payan, a Mexican citizen, pleaded guilty to reentry after deportation in violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). Galarza asked the district court to consider sentencing him below the applicable range in the United States Sentencing Guidelines on the basis of his “cultural assimilation” — i.e., close familial and cultural ties to the United States. The district court denied his request and sentenced him within the range called for by the Guidelines. He now appeals his sentence, contending that the court acted unreasonably in refusing to adjust his sentence downward. We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM. I. Background Galarza was apprehended in Sunland Park, New Mexico, where he admitted to entering the United States illegally. Ga-larza had previously been deported to Mexico based upon a felony conviction (robbery) committed in El Paso, Texas. He pleaded guilty to illegal reentry as charged in the present indictment. At sentencing, the government’s presen-tence report calculated that Galarza’s presumptive sentence under the Guidelines fell in the range of 57 to 71 months. Ga-larza initially moved for a downward departure from the applicable range on the grounds of cultural assimilation. Specifically, he argued that his culpability should be mitigated because his reentry was motivated by his “family and community ties” to this country. Aplt. Br. at 5. During Galarza’s sentencing proceedings, the Supreme Court issued United States v. Booker, 543 U.S. 220, 258-59, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which made the application of the Guidelines advisory, rather than mandatory. Responding to the changed legal landscape, Galarza filed a post-Booker sentencing memorandum in which he reiterated his cultural assimilation grounds for a sentence adjustment but urged the court to consider these factors as a matter of discretion, given the advisory nature of the Guidelines. In particular," }, { "docid": "6230102", "title": "", "text": "HOLLOWAY, Chief Judge. 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 cause is therefore ordered submitted without oral argument. Defendant Ernie C. Doyan, having entered a plea of guilty to the charge of conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. 841(a)(1) (1990), now challenges on appeal the fine portion of his sentence. Doyan argues that the imposition of the fine of $32,291.92 constitutes (1) a misapplication of the United States Sentencing Guidelines rising to the level of an abuse of discretion on the part of the trial court, and (2) a violation of the defendant’s equal protection rights under the United States Constitution. Finding no merit in either of Doyan’s arguments, we affirm. I. Background Over a period of several months during 1988, the defendant negotiated with an undercover agent to purchase approximately one kilogram of cocaine. Doyan, who was then employed as manager of a pawn shop in Wichita, Kansas, was apparently acting as an intermediary between the undercover agent and a Mr. James Labat, whose money was to be used to purchase the cocaine. In what may be described as a “reverse sting” operation, the undercover agent agreed with the defendant that on January 11, 1989, Doyan was to bring $20,000 to a Wichita motel where the money would be exchanged for one kilogram of cocaine. At the conclusion of the transaction with the undercover, agent, the defendant was arrested. After his arrest, the defendant accepted responsibility for his crime and .cooperated fully with the government. As part of a plea agreement, Doyan entered a plea of guilty to the 21 U.S.C. 841(a)(1) (1990) violation. The government filed a motion pursuant to 18 U.S.C. 3553(e), requesting that the court impose a sentence below the statutory minimum of five years. 21 U.S.C. 841(b)(1)(B) (1990). Doyan was sentenced to 24 months of incarceration to be followed by five years of supervised release. TR. II at 9-10. The defendant was also fined" }, { "docid": "22841958", "title": "", "text": "ORDER Bobby Curry, through counsel, appeals his 240-month sentence for various drug offenses. His appeal has been referred to a panel of this court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon review, the panel concludes that oral argument is not needed. Fed. R.App. P. 34(a). Curry entered a written plea of guilty to conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine; conspiracy to distribute and possession with intent to distribute a quantity of pills containing oxycodone and methadone; distribution of cocaine and a quantity of pills containing oxycodone and methadone, which resulted in the death of an individual; and two criminal forfeiture counts. After conducting a hearing, the district court accepted Curry’s plea of guilty. A probation officer prepared a presentence report (“PSR”). Based upon a base offense level of 41 and a criminal history category of I, Curry’s sentencing range was 324 to 405 months of imprisonment. After granting the government’s motion for a downward departure, the district court sentenced Curry to 240 months of imprisonment, five years of supervised release, and $22,987 in restitution. Curry appealed. Curry’s counsel has moved to withdraw, and has submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel submitted two issues for review: (1) whether the district court should have departed downward to a greater extent; and (2) whether Curry’s sentence was reasonable. Curry was noti fied of his right to respond, but no response has been received by the court. Upon consideration, we grant counsel’s motion to withdraw and affirm Curry’s sentence. Curry first argues that the district court should have downwardly departed to a greater extent, based upon his significant cooperation with the government. When “the district court grants a downward departure for substantial assistance and the defendant’s claim on appeal goes only to the extent of the departure, this Court has no jurisdiction over the appeal.” United States v. Jones, 417 F.3d 547, 551 (6th Cir.2005) (citations omitted); see also United States v. Puckett, 422 F.3d 340, 345 (6th Cir.2005)." }, { "docid": "1003091", "title": "", "text": "HARTZ, Circuit Judge. After examining the briefs and appellate record, we have determined to honor the parties’ request for a decision on the briefs without oral argument in Appeal No. 01-3211, United States v. Mendez-Zamora. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. We heard oral argument in Appeal No. 01-3215, United States v. Gaona-Sepulveda. Because the two appeals share some issues, we dispose of them together in this opinion. At a joint trial the jury found Defendants Heraclio Gaona-Sepulveda and Salvador Mendez-Zamora guilty of conspiracy to distribute and to possess with intent to distribute at least one kilogram of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Mendez-Zamora was also convicted of three substantive offenses: (1) Count 5 — distribution of and possession with intent to distribute 50 grams or more of methamphetamine, as a principal or an aider and abettor, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (2) Count 7 — possession with intent to distribute 500 grams or more of methamphetamine, as a principal or an aider and abettor, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) Count 8 — using a telephone to facilitate drug trafficking, in violation of 21 U.S.C. § 843(b). Gaona-Sepulveda was also named in Counts 5 and 7, but he was acquitted on both charges. In computing Mendez-Zamora’s offense level under the United States Sentencing Guidelines (U.S.S.G.), the district court set the base offense level at 38, increased the level by 2 for possession of a firearm, increased it by 3 more for being a manager or supervisor, and added an additional 2 for obstruction of justice, resulting in an offense level of 45. The court sentenced him to life in prison. As for Gaona-Sepulveda, the district court first set the base offense level at 38 because the quantity of methamphetamine distributed or possessed with intent to distribute as part of the conspiracy exceeded 15 kilograms. The court then increased the level by 2 for possession of a firearm," }, { "docid": "6971315", "title": "", "text": "appointed counsel filed an Anders brief and moved to withdraw after concluding that his appeal presents no nonfrivolous issues. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aguirre did not initially respond, but we allowed him to file a late response. Counsel first notes that Aguirre did not seek to withdraw his guilty plea in the district court. In his belated response, Aguirre confirms that he does not want to withdraw his plea; counsel therefore properly limited his inquiry to possible sentencing challenges. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002) (counsel should not explore possible Rule 11 challenges in an Anders brief in the absence of a request by the defendant to withdraw his guilty plea). Counsel notes that in his plea agreement, Aguirre accepted the PSR’s guidelines calculations and reiterated at sentencing that he had no challenge to those calculations; any challenge to the court’s calculation of the advisory range would therefore be frivolous. Finally, counsel notes that although a below-guidelines sentence would have been reasonable in this case, Aguirre’s 235-month sentence — at the low end of the advisory range — is presumptively reasonable and there are no nonfrivolous arguments that might rebut that presumption. Aguirre now claims that he did not make any demands of the victim’s family and was not a leader or organizer of this kidnapping, but that conflicts with the facts he admitted when he entered his guilty plea. We agree with Aguirre’s counsel that there are no nonfrivolous arguments to pursue on appeal. For the foregoing reasons, we Affirm the judgment in Vizcarra’s case (No. 09-1174). In Aguirre’s case (No. 09-2457), we Grant counsel’s motion to withdraw and Dismiss the appeal. . We note that U.S.S.G. § 2J1.1, application note 2, was amended effective November 2011 and now explicitly provides that the enhancement in § 2B 1.1 (b)(9)(C) for violating a court order does not apply to failure to pay child support; this amendment was a response to our decision in United States v. Bell, 598 F.3d 366 (7th Cir.2010). See U.S.S.G. §" }, { "docid": "22270226", "title": "", "text": "bargain at the heart of the agreement — without the defendant’s waiver of his right to appeal, the Government might not have been willing to dismiss four of the five counts contained in the indictment. Having approved the plea agreement, the district court had no more right to change its terms than it would have to change the terms of any other contract. Id. at 1169; see also United States v. Ritsema, 89 F.3d 392, 398-99 (7th Cir. 1996) (noting that under Fed.R.Crim.P. 11, “[o]nce the court has accepted 'a plea agreement, however, it is, as a general rule, bound by the terms of that agreement”). Although the sentencing court may modify plea agreements in certain exceptional circumstances (for example, for reasons of public policy or in instances of fraud on the court, see, e.g., United States v. Ready, 82 F.3d 551 (2d Cir.1996)), those circumstances are not present here. Accordingly, because the district court’s remarks at sentencing could not have affected Mr. Black’s decision to enter into the plea agreement and waive his right to appeal, and because the district court lacked the authority to modify the plea agreement in these circumstances, we conclude that the waiver-of-appeal provision should be enforced. Accordingly, Mr. Black has waived his right to appeal his sentence on the grounds he asserts in his appellate brief. III. CONCLUSION For the reasons set forth above, we conclude that the district court did not abuse its discretion in denying Mr. Black’s motion to withdraw his guilty plea. Moreover, in light of the provisions of the plea agreement, Mr. Black has waived his right to appeal his sentence. Accordingly, we AFFIRM the district court’s denial of Mr. Black’s motion to withdraw his guilty plea. We DISMISS Mr. Black’s appeal insofar as it concerns the imposition of his sentence. . After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . In light of our conclusion" }, { "docid": "23290934", "title": "", "text": "criminal appeal will initially be evaluated under the summary procedure and analysis described in Hahn, 359 F.3d at 1328. We vacate the district court’s order and remand this case for a hearing to determine whether Mr. Garrett requested counsel to file a notice of appeal. Mr. Garrett’s motion for leave to proceed in forma pauperis is GRANTED, as is the government’s motion to supplement the record on appeal. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . The pertinent provision of the plea agreement states: [Mr. Garrett], in exchange for the promises and concessions made by the United States in this plea agreement, knowingly and voluntarily waives his right to appeal or collaterally challenge: a. Defendant’s guilty plea and any other aspects of his conviction.... b. Defendant's sentence as imposed by the Court and the manner in which the sentence is determined, provided the sentence is within or below the applicable guideline range determined by the Court to apply to this case, even if the Court rejects one or more of the positions of the United States or the defendant ... concerning the application of the U.S. Sentencing Guidelines; provided that (i) defendant specifically does not waive the right to appeal an upward departure from the sentencing guideline range determined by the Court to apply to this case, and (ii) his waiver of rights to appeal and to bring collateral challenges shall not apply to appeals or challenges based on changes in the law reflected in Tenth Circuit or Supreme Court cases decided after the date of this agreement which are held by the Tenth Circuit or Supreme Court to have retroactive effect. R., Doc. 403, at 8-9. . Though the COA order specified the issue on which defendant \"made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c), the government's brief failed to respond to this court's question. Indeed," }, { "docid": "22270227", "title": "", "text": "to appeal, and because the district court lacked the authority to modify the plea agreement in these circumstances, we conclude that the waiver-of-appeal provision should be enforced. Accordingly, Mr. Black has waived his right to appeal his sentence on the grounds he asserts in his appellate brief. III. CONCLUSION For the reasons set forth above, we conclude that the district court did not abuse its discretion in denying Mr. Black’s motion to withdraw his guilty plea. Moreover, in light of the provisions of the plea agreement, Mr. Black has waived his right to appeal his sentence. Accordingly, we AFFIRM the district court’s denial of Mr. Black’s motion to withdraw his guilty plea. We DISMISS Mr. Black’s appeal insofar as it concerns the imposition of his sentence. . After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . In light of our conclusion that Mr. Black has waived the right to appeal his sentence, we do not here address the § 2K2.1(b)(5) enhancement or the district court’s consideration of the Colorado misdemeanor offense. . Unlike some plea agreements, the one between the government and Mr. Black does not state that a particular sentence or range of sentences would constitute an appropriate disposition of the case. Compare Rec. vol. I, doc. 125, at 7 (plea agreement containing no statement as to an appropriate sentence or range of sentences) with United States v. Veri, 108 F.3d 1311, 1313 (10th Cir.1997) (upholding plea agreement providing that the government and the defendant agreed as to the appropriate offense level and therefore to \"a sentencing range of twenty-one to twenty seven months’ imprisonment”). In United States v. Rosa, 123 F.3d 94, 99-100 (2d Cir.1997), the Second Circuit has contrasted plea agreements that specify a sentencing range with those that do not. The former agreements allow the defendant \"in advance, to evaluate the predicted range and assess in an informed manner whether he is" }, { "docid": "23516168", "title": "", "text": "TACHA, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. In 2009, a jury found defendant-appellant Shevel Foy guilty of: (1) conspiring to manufacture, possess with intent to distribute, or to distribute cocaine base and/or cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(ii), (b)(l)(A)(iii), 846 and 18 U.S.C. § 2; and (2) attempting to possess with intent to distribute between 500 grams and less than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(ii), 846 and 18 U.S.C. § 2. The district court imposed concurrent sentences of 360 months’ imprisonment for each charge. Mr. Foy now appeals various aspects of his convictions and sentences. We take jurisdiction under 28 U.S.C. § 1291. We AFFIRM Mr. Foy’s conviction and sentence for conspiracy, but we VACATE his conviction and sentence for criminal attempt due to improper venue. I. BACKGROUND Mr. Foy’s convictions stem from his participation in a vast conspiracy to distribute cocaine and cocaine base in and around Kansas City, Kansas and Kansas City, Missouri from January 2006 to November 2007. The Drug Enforcement Administration (“DEA”) began investigating the conspiracy in 2006 at the request of the Leavenworth, Kansas police department. After attempting various traditional investigative techniques (e.g., surveillance, confidential informants, and search warrants) and finding them to be ineffective means of uncovering the size and scope of the conspiracy, federal law enforcement officers decided to seek wiretaps. By statute, before a law enforcement officer may submit a wiretap application to a federal judge, he must obtain authorization from a statutorily designated executive official or an executive official whom the Attorney General designates, and he must identify the authorizing official in the application. See 18 U.S.C. § 2516(1) (listing the executive officers who may authorize a wiretap application) and § 2518(l)(a) (requiring that all wiretap applications include “the identity of ... the officer authorizing the application”). In" }, { "docid": "21389881", "title": "", "text": "MATHESON, Circuit Judge. Federal prisoner William Kurtz appeals the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). His appointed counsel has submitted an Anders brief stating this appeal presents no non-frivolous grounds for reversal. After carefully examining the record, we agree. Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to withdraw and dismiss this appeal. I. BACKGROUND A. Conviction and Sentence Mr. Kurtz was indicted in September 2011 on six counts of conspiracy, distribution of methamphetamine, and possession with intent to distribute methamphetamine. In November 2011, he pled guilty to one count of conspiring to possess with intent to distribute more than five grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Mr. Kurtz and the Government stipulated in their plea agreement that he 1) was responsible for approximately 48.4 grams of pure methamphetamine, 2) had accepted responsibility for his conduct, and 3) was a minor participant in the criminal conduct giving rise to his plea. In its January 2012 presentence investigation report (“PSR”), the Probation Department concluded the plea agreement understated the quantity of drugs for which Mr. Kurtz was responsible and said the amount should have been the equivalent of 6,068 kilograms of marijuana. It also determined Mr.' Kurtz should not receive a sentence reduction for performing a minor role. Nevertheless, Probation accepted the plea agreement’s stipulations; the PSR therefore set Mr. Kurtz’s base offense level at 30 and recommended a two-level reduction for minor role. After a three-level reduction for acceptance of responsibility and a two-level enhancement for maintaining a premises for the purpose of distributing a controlled substance, Mr. Kurtz’s total offense level came to 27. A level II criminal history category yielded an advisory Guidelines range of 78-97 months. At a March 26, 2012 sentencing hearing, the district court agreed with Probation that Mr. Kurtz 1) was responsible for the equivalent of 6,068 kilograms of marijuana and 2) had played more than a minor role in the underlying criminal conduct. The court therefore set his base offense level at 34 and declined" }, { "docid": "22604663", "title": "", "text": "Breeze’s motion to withdraw. BACKGROUND On November 2, 2004, Mr. Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and punishable by 21 U.S.C. § 841(b)(1)(A). Under the terms and conditions of the plea agreement, the government agreed to recommend a two level reduction if defendant demonstrated an acceptance of responsibility. The government also agreed to recommend a sentence at the low end of the applicable Sentencing Guidelines range and not to seek a sentencing enhancement. As part of the plea agreement, Mr. Calderon waived his right to appeal his sentence. Under the Federal Sentencing Guidelines applicable at the time, the base level for Mr. Calderon’s offense was 36. U.S.S.G. § 2Dl.l(c)(2). Mr. Calderon was given a reduction of three levels because of his recognition of criminal conduct and assistance of authorities, giving him a total offense level of 33. No enhancements were made. According to the Presentence Report, the applicable sentencing range under the Guidelines was from 151 to 188 months. On January 11, 2005, Mr. Calderon was sentenced to 151 months of confinement, to be followed by 60 months of supervised release. On appeal, Attorney Breeze filed a brief pursuant to Anders and moved to withdraw as counsel. Attorney Breeze provided the Anders brief to both the court and his client. In the Anders brief, Attorney Breeze argues that Mr. Calderon waived his right to appeal his sentence and therefore his appeal is wholly frivolous. Attorney Breeze also notes that “[Mr. Calderon] could argue that he should be able to appeal his 151-month sentence and ... the denial of his motion to suppress,” id., with out developing these potential arguments. After receiving the Anders brief, Mr. Calderon submitted a response (entitled “Pro Se Opening Brief of Appellant”), raising several arguments to the Court. Mr. Calderon’s arguments can be summarized as follows: (1) The Controlled Substances Act, 21 U.S.C. § 801 et seq., violates the Commerce Clause; (2) Mr. Calderon was denied the effective assistance of counsel; and (3) The Supreme" }, { "docid": "22604662", "title": "", "text": "McCONNELL, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument. Ivan Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine. In his plea agreement, Mr. Calderon waived his right to appeal his sentence. He was sentenced to 151 months in prison. Mr. Calderon timely appealed, and his counsel, Robert Breeze, filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Calderon then filed a response brief to the Anders brief. The government declined to submit a brief. Although we decline to enforce the appeal waiver due to the government’s failure to seek enforcement of the plea agreement, we find that Mr. Calderon’s appeal is nonetheless frivolous. Therefore, we DISMISS the appeal and GRANT Attorney Breeze’s motion to withdraw. BACKGROUND On November 2, 2004, Mr. Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and punishable by 21 U.S.C. § 841(b)(1)(A). Under the terms and conditions of the plea agreement, the government agreed to recommend a two level reduction if defendant demonstrated an acceptance of responsibility. The government also agreed to recommend a sentence at the low end of the applicable Sentencing Guidelines range and not to seek a sentencing enhancement. As part of the plea agreement, Mr. Calderon waived his right to appeal his sentence. Under the Federal Sentencing Guidelines applicable at the time, the base level for Mr. Calderon’s offense was 36. U.S.S.G. § 2Dl.l(c)(2). Mr. Calderon was given a reduction of three levels because of his recognition of criminal conduct and assistance of authorities, giving him a total offense level of 33. No enhancements were made. According to the Presentence Report, the applicable sentencing range under the Guidelines was" }, { "docid": "13303092", "title": "", "text": "MURPHY, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore, ordered submitted without oral argument. I. INTRODUCTION Defendant Edward J. Brown (“Brown”) was indicted on one count of conspiracy to possess with intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; one count of using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g), 924(a)(2). Pursuant to a conditional plea agreement, Brown pleaded guilty to conspiracy to possess with intent to distribute and distribution of methamphetamine and use of a firearm during and in relation to a drug trafficking offense. The district court sentenced Brown to consecutive terms of 121 months on the former count and 60 months on the latter count. The district court also ordered a $1000 fine and five years of supervised release. Brown argues on appeal that he was deprived of his Fifth and Sixth Amendment guarantees of due process under the United States Constitution when the district court granted the government’s motion in limine to exclude evidence of Brown’s mental condition from consideration by the jury. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms, concluding that although psychological or psychiatric evidence negating specific intent may be admissible, Brown relied upon an impermissible legal theory for admitting the evidence and failed to identify a relationship between the proposed testimony and his mens rea. II. BACKGROUND On March 22, 2001, Brown was indicted on three counts for his participation in a multi-state methamphetamine operation. At arraignment, Brown pleaded not guilty to the three charges. Subsequent to entering his pleas, Brown filed a motion to obtain a psychological examination by Dr. Fred Lindberg for the purpose of preparing a defense. The district court granted the motion. On July" }, { "docid": "16373585", "title": "", "text": "McKAY, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The cáse is therefore ordered submitted without oral argument. Darwyn Rhon Horey appeals from the district court’s order denying his motion to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. § 2255. We granted a certificate of appealability (COA) on a single issue: whether his trial counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failure to object to an undisputedly inapplicable career offender enhancement that increased both Mr. Horey’s total offense level and his criminal history category by one level, increasing the applicable guideline range mínimums from 292 months to 360 . months. We reverse and remand for resentencing. I. . In 1996, a jury convicted Mr. Horey on one count of possession and distribution of approximately 240 grams of cocaine base and on two counts of being a felon in possession of a firearm. The penalty for the drug possession count was doubled to 240 months because of a prior felony drug conviction, and his total offense level was 36 with a criminal history category of V, placing his sentencing guideline range at 292-365 months’ imprisonment. But the government also successfully sought to enhance his sentence as a career offender under United States Sentencing Guideline § 4B1.1. Although it is undisputed that Mr. Horey’s prior conviction for possession of cocaine did not meet the definition of a qualifying felony under the guideline, Mr. Horey’s counsel did not object to application of this enhancement. Thus, his total offense level was adjusted to level 37 and his criminal history category was raised to VI, giving a range of 360 months to life. Mr. Horey was sentenced to 360 months’ imprisonment, the minimum sentence under the guidelines. Mr. Horey’s appellate counsel did not raise the error on direct appeal. But in 1998, Mr. Horey filed a timely motion to" }, { "docid": "9902377", "title": "", "text": "MURPHY, Circuit Judge. After examining the briefs and the appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without oral argument. I. INTRODUCTION Defendant-appellant Deon Raymond Martinez pleaded guilty to ten counts of bank robbery, all in violation of 18 U.S.C. § 2113(a). At sentencing, the district court departed upward from the sentencing range recommended in the presen-tence investigation report (“PSR”) and imposed a prison sentence of 130 months. Martinez now appeals his sentence, arguing (1) the district court’s four-level upward departure was unreasonable, (2) his criminal history category was improperly calculated, and (3) he must be resentenced in light of the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms Martinez’s sentence. II. BACKGROUND During a robbery spree in 2003, Martinez robbed ten banks and credit unions located in Utah and New Mexico. On August 27, 2003, Martinez was charged in the District of Utah with five counts of bank robbery. On September 11, 2003, Martinez was similarly charged in the District of New Mexico with five counts of bank robbery. Martinez consented to have the New Mexico case transferred to the District of Utah, pursuant to Fed. R. Crim P. 20, for purposes of his guilty plea. Subsequently, Martinez entered into plea agreements with the United States and, on. January 26, 2004, Martinez entered a plea of guilty on all ten counts. In calculating his sentence under the United States Sentencing Guidelines (“U.S.S.G.”), the PSR assigned Martinez a final adjusted offense level of twenty-four and a criminal history category of VI, producing a recommended sentencing range of 100 to 125 months’ imprisonment. The PSR concluded Martinez’s base offense level for robbery was twenty. U.S.S.G. § 2B3.1. Because the property taken belonged to a financial institution, a two-level increase was applied under U.S.S.G. § 2B3.1(b)(1). Pursuant to the multiple count" }, { "docid": "23290933", "title": "", "text": "have held that a defense attorney does not render ineffective assistance by failing to file a notice of appeal where the defendant has effectively waived his right to appeal.” R., Doc. 835, at 4 & n.4. This proposition cannot be reconciled with the Supreme Court’s holding in Flores-Ortega and this court’s statements in Snitz, In fact, whether or not Mr. Garrett instructed his attorney to file a notice of appeal is the crux of his § 2255 case. Mr. Garrett’s appellate rights have been significantly limited by his waiver, but the waiver does not foreclose all appel late review of his sentence. See Hahn, 359 F.3d at 1318. If Mr. Garrett actually-asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal. See Snitz, 342 F.3d at 1157. This is true regardless of whether, from the limited perspective of collateral review, it appears that the appeal will not have any merit. Flores-Ortega, 528 U.S. at 477, 484-85, 120 S.Ct. 1029; Snitz, 342 F.3d at 1155-56. Any resulting criminal appeal will initially be evaluated under the summary procedure and analysis described in Hahn, 359 F.3d at 1328. We vacate the district court’s order and remand this case for a hearing to determine whether Mr. Garrett requested counsel to file a notice of appeal. Mr. Garrett’s motion for leave to proceed in forma pauperis is GRANTED, as is the government’s motion to supplement the record on appeal. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . The pertinent provision of the plea agreement states: [Mr. Garrett], in exchange for the promises and concessions made by the United States in this plea agreement, knowingly and voluntarily waives his right to appeal or collaterally challenge: a. Defendant’s guilty plea and any other aspects of his conviction.... b. Defendant's sentence as imposed by the Court and the manner in which the sentence" }, { "docid": "23250491", "title": "", "text": "BROWN, Senior District Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Johnny Horton Weekes, a federal inmate appearing pro se, appeals from an order dismissing his petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2241. Mr. Weekes asserts that he is entitled to credit for pre-federal-sentence time served under 18 U.S.C. § 3585(b). He also asserts that he is entitled to credit for time served in post-federal-sentence state incarceration under 18 U.S.C. § 3585(a) and White v. Pearlman, 42 F.2d 788 (10th Cir.1930), because he has been forced to serve his federal sentence “on an installment basis” in violation of the statute and his constitutional rights. Appellant’s Br. at 3, 5. Our jurisdiction arises under 28 U.S.C. § 1291. We reject the first argument but, because we find merit in the second argument, we reverse. I. Standard of review The complex procedural history of this case is partially documented in the magistrate judge’s November 6, 2000 report and recommendation and the district court’s December 21, 2000 order denying the petition for writ of habeas corpus. Mr. Weekes does not claim that the procedural history is factually incorrect. Rather, he argues that the court misinterpreted the record and the applicable law. We thus review de novo the district court’s dismiss al of Mr. Weekes’ petition. Patterson v. Knowles, 162 F.3d 574, 575 (10th Cir.1998). II. Procedural history Mr. Weekes was arrested on November 13, 1993, by Idaho state authorities and charged with possession of a controlled substance in Bannock County, Idaho. He pleaded guilty to the charge, and on April 18, 1994, was sentenced to the custody of the Idaho Department of Corrections (DOC) for a fixed term of two years and a subsequent indeterminate term of three years. This sentence was suspended and Mr. Weekes was placed on three years’ probation. Just two days later, on April 20, 1994, Mr. Weekes was" }, { "docid": "22327722", "title": "", "text": "ORDER DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS, DENYING CERTIFICATE OF APPEALABILITY, AND DISMISSING APPLICATION TERRENCE L. O’BRIEN, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Dennis Neal Clark, a state prisoner proceeding pro se, filed a 28 U.S.C. § 2254 motion to vacate, set aside or correct his sentence. The district court dismissed the motion, concluding it was untimely under 28 U.S.C. § 2244(d)(1) which contains a one-year statute of limitations. Clark then filed a notice of appeal and an application to proceed in forma pauperis (ifp). The court denied his motion to proceed ifp, certifying the appeal was not taken in good faith under 28 U.S.C. § 1915(a)(3) because his application to appeal failed to give a reasoned nonfrivolous argument on the law and supporting facts as to why the dismissal of his habeas petition was incorrect. See 28 U.S.C. § 1915(a)(3); Fed. R.App. P. 24(a)(3). In this Court, Clark requests a Certificate of Appealability (COA) and again seeks leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1), 24(a)(5). Background Clark’s habeas petition stems from four state cases. In one case, a jury convicted Clark of two counts. He then pled guilty to three other pending cases pursuant to a plea agreement. On December 20, 2002, he was sentenced to twenty years imprisonment for the charges on which the jury found him guilty. At the same time, pursuant to the plea agreement, the court sentenced him on the remaining charges, running all sentences concurrently. Clark did not move to withdraw his guilty pleas, file a direct appeal, or seek a writ of certiorari from the United States Supreme Court. As a result, the judgments on Clark’s convictions became final ten days later, December 30, 2002. Okla. Stat. tit. 22, § 1501; Okla.Crim.App. R. 2.5(A) & 4.2(A). Clark filed his habeas petition in federal court on November" }, { "docid": "19352396", "title": "", "text": "remand to the district court for review of the charging documents, plea agreement, transcript of a plea colloquy or documentation of the judge’s factual findings in the prior offense’s proceeding to determine whether conviction for the prior offense necessarily meant the defendant engaged in the required element of force. United States v. Hernandez-Garduno, 460 F.3d 1287, 1294 (10th Cir.2006). The district court here reviewed only the amended information, judgment and sentence, and therefore the documents before the court were incomplete. On remand, the government should have the opportunity to present whatever additional documents are permissible under Shepard and Hemandez-Garduno for consideration of whether the prior conviction was for a crime of violence. Therefore, we hold that the district court erred in concluding that Mr. Ruiz-Rodriguez’s prior conviction for false imprisonment was a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A) and in applying a sixteen-level enhancement pursuant to that determination. We REVERSE and REMAND for resentencing. See United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006) (holding that a non-harmless error applying the Guidelines warrants remand). . After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . \"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.” United States v. Torres-Ruiz, 387 F.3d 1179, 1181 (10th Cir.2004) (quotation omitted). . The government conceded in its April 2, 2007, brief that the district court indeed erred in concluding that Mr. Ruiz-Rodriguez's prior conviction was a crime of violence under Taylor’s categorical approach. The government stood by its concession in its June 25, 2007, supplemental brief, arguing that we should reverse and remand for resentencing. Then, on July 12, 2007, the government submitted a letter pursuant to Fed. R.App. P. 28(j) that did not expressly withdraw its earlier concession but instead argued that" } ]

[ { "docid": "22556227", "title": "", "text": "In sum, Texas “in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life.” Jenness v. Fortson, 403 U. S., at 439. It affords minority political parties a real and essentially equal opportunity for ballot qualification. Neither the First and Fourteenth Amendments nor the Equal Protection Clause of the Fourteenth Amendment requires any more. Ill Appellants Dunn and Hainsworth challenged Arts. 13.50 and 13.51, which govern the eligibility of nonpartisan or independent candidates for general election ballot position. Regardless of the office sought, an independent candidate must file, within 30 days after the second or runoff primary election, a written petition signed by a specified number of qualified voters. The signatures required vary with the office sought. Dunn was required to obtain signatures equaling 3% of the 1970 vote for governor in the congressional district in which he desired to run; Hainsworth, a candidate for the State House of Representatives, needed 5% of the same vote in his locality. Article 13.50, however, states that in no event would candidates for any “district office,” as Dunn and Hainsworth were, be required to file more that 500 signatures. The law also provides that a voter may not sign more than one petition for the same office and is barred from signing any petitions if he voted at either primary election of any party at which a nomination was made for that office. Each voter signing an independent candidate’s petition must also subscribe to a notarized oath declaring his nonparticipation in any political party’s nominating process. Art. 13.51. Dunn and Hainsworth contend that the First and Fourteenth Amendments, including the Equal Protection Clause, forbid the State to impose unduly burdensome conditions on their opportunity to appear on the general election ballot. The principle is unexception able, cf. Storer v. Brown, ante, at 738, 739, 740, 746; but requiring independent candidates to evidence a “significant modicum of support” is not unconstitutional. Demanding signatures equal in number to 3% or 5%- of the vote in the last election is not invalid on its face, see Jenness v. Fortson, supra," } ]

[ { "docid": "11081", "title": "", "text": "political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Id. at 787, 103 S.Ct. at 1569, citing Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). Voters can assert their preferences only through candidates; “it is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Id., citing Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974). Excluding candidates from the ballot burdens voters’ freedom of association, because “an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying-point for like-minded citizens.” Id. at 787-88, 103 S.Ct. at 1569. Although these rights of voters are “fundamental,” not all restrictions on candidates’ ballot eligibility impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates. Id. at 788, 103 S.Ct. at 1569. Elections must be regulated in order to make them fair, honest and orderly. Id. Each regulation, whether it concerns voter registration, candidate eligibility or the voting process itself, “inevitably affects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.” Id. However, the State’s important regulatory interests are usually sufficient to justify “reasonable, nondiscriminatory restrictions.” Id. The Court noted that it had previously upheld “generally-applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself,” such as requirements that candidates show some voter support to qualify for the ballot and rules preventing “party raiding” in which voters switch parties to manipulate primary results. Id. at n. 9. Further, it had upheld restrictions on candidate eligibility which served legitimate state goals unrelated to First Amendment values. Id., citing Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (permissible to prevent incumbent Justice of the Peace from seeking election to state legislature where legislative term would begin before" }, { "docid": "12064699", "title": "", "text": "of barriers to a candidate’s access to the ballot ‘does not itself compel close scrutiny.’ ” Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982) (quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855-856, 31 L.Ed.2d 92 (1972)). Limitations on ballot access nonetheless burden two fundamental rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasions to cast their votes effectively.” Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986) (quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968)). In examining ballot access restrictions, the Court has focused on the rights of particular classes of voters to elect a candidate of their choice. The ballot access cases focus on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens the “availability of political opportunity.” Id. 107 S.Ct. at 540 (quoting Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974)). 2. What Level of Scrutiny? The Supreme Court has never stated the level of scrutiny applicable to ballot access restrictions with crystal clarity. The rigid multi-tiered approaches outlined above are too rigid for dealing with ballot access cases. There is no question that the rights to vote and to associate are fundamental. There is also no question that some regulation of access to the ballot is necessary in order to conduct orderly elections, and that the states have some authority to establish qualifications for office. As Justice Stevens recognized, any election regulation “inevitably effects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.” Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569-1570, 75 L.Ed.2d 547 (1983). The Supreme Court has taken several different approaches to resolving this conundrum. Justices Brennan" }, { "docid": "15546603", "title": "", "text": "the general election for major political struggles. See Timmons, 520 U.S. at 367, 117 S.Ct. 1364; Burdick, 504 U.S. at 439, 112 S.Ct. 2059. States also have a strong interest in preventing voter confusion by limiting ballot access to serious candidates who can demonstrate at least some level of political viability. See Anderson, 460 U.S. at 788 n. 9, 103 S.Ct. 1564; Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). We need not decide whether these interests can be considered “compelling” because Illinois has not demonstrated that its early filing deadline and high signature requirement, taken together, are narrowly drawn to the advancement of these interests. Illinois devoted much of its brief to arguing that we need not even engage in the foregoing analysis and should reject Lee’s challenge — to the filing deadline at least— as a matter of stare decisis based on Stevenson v. State Board of Elections, 794 F.2d at 1177. It is true that Stevenson rejected a challenge to Illinois’s early filing deadline for independents, but that decision does not control the outcome here for at least three reasons. First, the plaintiffs in Stevenson challenged only the early filing deadline; they did not ask this court to consider the deadline in conjunction with Illinois’s demanding signature requirement and its corresponding rule that disqualifies anyone who signs an independent’s nominating petition from voting in the primary. This distinction is important because we are required to evaluate challenged ballot access restrictions together, not individually, and assess their combined effect on voters’ and candidates’ political association rights. Nader, 385 F.3d at 735. An early filing deadline coupled with a less burdensome signature requirement may well pass constitutional muster, depending on their combined effect on political association rights. Second, as we have noted, the Supreme Court has instructed us to give significant weight to the historical impact of ballot access restrictions. Storer, 415 U.S. at 742, 94 S.Ct. 1274. Twenty years have passed since Stevenson, and in that time not a single independent General Assembly candidate has qualified for the general election ballot. Given" }, { "docid": "19366798", "title": "", "text": "quite similar to Hawaii’s section 12-41, one which also conditions certain candidates’ access to the general election ballot on receiving a minimum number of votes in the primary. 479 U.S. at 199, 107 S.Ct. at 539. With respect to the character and magnitude of the asserted injury to Erum’s first and fourteenth amendment rights, we acknowledge that restrictions upon the access of independent candidates to the ballot impinge upon the fundamental rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively. Anderson, 460 U.S. at 787-88, 103 S.Ct. at 1569-70; Illinois State Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); see also Munro, 479 U.S. at 193, 107 S.Ct. at 536 (minor party candidate restrictions) (citing Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968)). Nevertheless, the effect on a candidate’s constitutional rights is “slight” when a state affords a candidate easy access to the primary election ballot and the opportunity to wage a ballot-connected campaign. Munro, 479 U.S. at 199, 107 S.Ct. at 539. Here, Erum only had to submit a petition signed by fifteen eligible voters to gain access to the primary ballot. This certainly qualifies as “easy access.” Therefore, in light of Munro, the burden the Hawaii statutory scheme imposes on Erum’s constitutional rights is “slight.” As for Hawaii, the Lieutenant Governor has advanced essentially three major interests in support of section 12-41’s ballot access restrictions, the first two of which have served to justify such restrictions in other contexts. First, the Lieutenant Governor sets forth Hawaii’s interest in “combatting unrestrained factionalism,” an interest which the Court held to be compelling and sufficiently weighty to justify California’s one-year disaffiliation provision in Storer, 415 U.S. at 736, 94 S.Ct. at 1282. Second, he advances Hawaii’s interest in “avoiding] voter confusion and overcrowded ballots,” recognized in Munro as legitimate to support Washington’s minimum vote requirement. Munro, 479 U.S. at 196, 107 S.Ct. at 538; see also Clements v. Fashing, 457 U.S. 957," }, { "docid": "11080", "title": "", "text": "nominating petition in the state of Ohio had already passed. Accordingly, the Ohio Secretary of State refused to accept Anderson’s nominating petition on May 16, 1980. The Supreme Court held that Ohio’s early filing deadline placed an unconstitutional burden on the voting and associational rights of Anderson’s supporters. The Court analyzed the issue as follows. The Anderson Court first noted that although the direct impact of the early filing deadline falls on aspirants for office, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” 460 U.S. at 786, 103 S.Ct. at 1568, citing Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). The Court’s primary concern was with “the tendency of ballot access restrictions ‘to limit the field of candidates from which voters might choose.’ ” Id. Ballot access restrictions burden two different yet related types of rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Id. at 787, 103 S.Ct. at 1569, citing Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). Voters can assert their preferences only through candidates; “it is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Id., citing Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974). Excluding candidates from the ballot burdens voters’ freedom of association, because “an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying-point for like-minded citizens.” Id. at 787-88, 103 S.Ct. at 1569. Although these rights of voters are “fundamental,” not all restrictions on candidates’ ballot eligibility impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates. Id. at 788, 103 S.Ct. at 1569. Elections" }, { "docid": "12499579", "title": "", "text": "for a certain candidate or political theory. Socialist Party v. Rhodes, supra at 987. A ban on write-in voting directly burdens the voter’s right to freely vote for the candidate of his choice by completely precluding that voter’s choice. This burden is of a significant magnitude given the importance of the right impaired. There has been some suggestion that the right to be a candidate for political office, in and of itself, may not be a fundamental right. Dixon v. Md. State Administrative Election Laws, 878 F.2d 776, 779 (4th Cir.1989). This court recognizes that “not all restrictions imposed by the States on candidates’ eligibility ... impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates.” Anderson v. Celebrezze, 460 U.S. at 788, 103 S.Ct. at 1569. However, this court is not being asked to decide the constitutionality of an election statute restricting a candidate’s access to the ballot or the candidate’s right to have the State print his name on the ballot. This court must decide the constitutionality of Hawaii’s prohibition on a voter’s right to vote for the candidate of his choosing, even if that candidate is not one of the candidates on the printed ballot. This court realizes that “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Canaan v. Abdelnour, 40 Cal.3d 703, 221 Cal.Rptr. 468, 474, 710 P.2d 268, 274 (1985). Nevertheless, the court is not as greatly concerned with the candidate’s right to run for political office as it is with the voter’s right to vote for the candidate of his choice, associate with the candidate of his choosing, and exercise freedom of political expression. Therefore, even though the right to be a candidate for political office in and of itself may not be a fundamental constitutional right, this right, in conjunction with the deprivation of freedom of expression and the right to vote, two established fundamental rights, amounts to an enormous injury to plaintiffs First and Fourteenth Amendment" }, { "docid": "3230189", "title": "", "text": "... a voter who has signed the petition of a nonparty candidate to participate in a party primary”). Voters may also sign as many petitions as they like. See § 24.2-506 (imposing no limitation on voters to sign only one petition); see also Jenness, 403 U.S. at 438-39, 91 S.Ct. 1970. Nor does Virginia require independent candidates to have been previously unaffiliated with a political party, see Storer, 415 U.S. at 726, 94 S.Ct. 1274 (upholding statute that imposed such a requirement), or compel independent or minor party candidates to file an affidavit regarding their views. See Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974) (striking statute requiring minor parties to attest that they do not advocate overthrowing the government before being placed on the ballot). Any filing deadline imposes some burden on constitutional rights. The Supreme Court has long recognized, however, that “as practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.” Burdick, 504 U.S. at 433, 112 S.Ct. 2059 (quoting Storer, 415 U.S. at 730, 94 S.Ct. 1274). For this reason, “not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates.” Anderson, 460 U.S. at 788, 103 S.Ct. 1564. In this case, while we cannot say that Virginia’s statutory scheme taken as a whole imposes no burden on constitutional rights, the burden imposed is both reasonable and nondiscriminatory, particularly when compared with statutes that we and other courts have previously upheld. IV. The final step of the Anderson analysis is to “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule” and “determine the legitimacy and strength of each of those interests.” Anderson, 460 U.S. at 789, 103 S.Ct. 1564. The level of scrutiny a court applies to a state’s asserted interests differs depending on the nature of the" }, { "docid": "19590990", "title": "", "text": "of the URP on this issue, see Utah Code § 20A-1-103, but we nonetheless consider this argument in the alternative, and ultimately conclude that the Signature Requirements-while a burden-are not unconstitutional under the Anderson - Burdick balancing test as applied to the URP. Any form of candidate eligibility requirement necessarily implicates basic constitutional rights, but as a practical matter \"not all restrictions imposed by the States on candidates' eligibility [to appear on the] ballot impose constitutionally-suspect burdens on voters' rights to associate or to choose among candidates.\" Anderson, 460 U.S. at 788, 103 S.Ct. 1564. As we have previously held, a \"state has a legitimate interest in requiring a showing of a 'significant modicum of support' before it prints on the state election ballot the name of a political party and its slate of candidates,' \" noting that such a requirement \"serves the important state interest of avoiding 'confusion, deception, and even frustration of the democratic process[.]\" Arutunoff v. Okla. State Election Bd., 687 F.2d 1375, 1378 (10th Cir. 1982) (quoting Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) ). We have further recognized that there is no hard-and-fast rule as to when a restriction on ballot eligibility becomes an unconstitutional burden. See Arutunoff, 687 F.2d at 1379. Instead, candidate eligibility requirements are considered under the Anderson - Burdick balancing test, in which a court is to weigh the character and magnitude of the asserted injury to the plaintiff against the interests advanced by the State as justifications for the eligibility requirements. Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Under SB54, an individual who wants to follow the signature-gathering path onto a State Senate primary ballot is required to collect 2,000 signatures of registered voters who are residents of the district and permitted by the party to vote for its candidates in a primary election. Utah Code § 20A-9-408(8)(b)(iii). For a candidate for the State House, the requirement is 1,000 signatures. Id § 20A-9-408-(8)(b)(iv). The district court stated that these requirements, considered alone, \"may be unconstitutional as applied to the URP.\" URP III," }, { "docid": "19366797", "title": "", "text": "1279, 39 L.Ed.2d 714 (1974)). In ruling on such challenges, “there is ‘no substitute for the hard judgments that must be made.’ ” Anderson v. Celebrezze, 460 U.S. 780, 789-90, 103 S.Ct. 1564, 1570-71, 75 L.Ed.2d 547 (1983) (quoting Storer, 415 U.S. at 730, 94 S.Ct. at 1279). Instead, a court must weigh (1) the character and magnitude of the asserted injury to first and fourteenth amendment rights that the plaintiff seeks to vindicate; and (2) the precise interests put forward by the State as justifications for the burden imposed by its rule. Anderson, 460 U.S. at 789, 103 S.Ct. at 1570; see also Storer, 415 U.S. at 730, 94 S.Ct. at 1279. “In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.” Anderson, 460 U.S. at 789, 103 S.Ct. at 1570. In weighing these factors here, we rely in large measure on Munro, which upheld a Washington statute quite similar to Hawaii’s section 12-41, one which also conditions certain candidates’ access to the general election ballot on receiving a minimum number of votes in the primary. 479 U.S. at 199, 107 S.Ct. at 539. With respect to the character and magnitude of the asserted injury to Erum’s first and fourteenth amendment rights, we acknowledge that restrictions upon the access of independent candidates to the ballot impinge upon the fundamental rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively. Anderson, 460 U.S. at 787-88, 103 S.Ct. at 1569-70; Illinois State Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); see also Munro, 479 U.S. at 193, 107 S.Ct. at 536 (minor party candidate restrictions) (citing Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968)). Nevertheless, the effect on a candidate’s constitutional rights is “slight” when a state affords a candidate easy access to the primary election ballot" }, { "docid": "12324640", "title": "", "text": "any restrictions on access to the ballot “burden two distinct and fundamental rights, ‘the right of individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’ ” Socialist Workers, 440 U.S. at 184, 99 S.Ct. at 990, citing Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). Because certain fundamental rights are at stake, a state must demonstrate that a compelling interest is served by the restrictions at issue. Socialist Workers, 440 U.S. at 184, 99 S.Ct. at 990; American Party of Texas v. White, 415 U.S. 767, 780-781, 94 S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744 (1974). In general, the courts have upheld state laws regulating elections if “the state’s justification is logically sound and consonant with common experience.” Citizens for J. W. Moore v. Chicago Election Commissioners, 665 F.Supp. 1334, 1339 (N.D.Ill.1987). Thus, the Supreme Court has found that a state’s interest in keeping its ballots within manageable, comprehensible limits is a legitimate interest, Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); as is a state’s interest “in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot — the interest, if no other, in avoiding confusion, deception and even frustration of the democratic process at the general election.” Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971). In Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 1319, 39 L.Ed.2d 702 (1974), the Court observed: A procedure inviting or permitting every citizen to present himself to the voters on the ballot without some means of measuring the seriousness of the candidate’s desire and motivation would make rational voter choices more difficult because of the size of the ballot and hence would tend to impede the electoral process. A state may regulate to ensure an efficient electoral process, but it must do so in the least drastic way. Id. at 716, 94 S.Ct. at 1320. Plaintiffs" }, { "docid": "5522948", "title": "", "text": "Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), and concluding with Anderson v. Celebrezze, — U.S. —, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). See also Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982); Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); Lubin v. Parish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). We reject appellants’ contentions and hold that the strict scrutiny test is inapplicable. In the first place, a fundamental distinction exists between this case and all the cited Supreme Court decisions. In each of the cases before the Supreme Court the state had prevented the names of the candidates from even appearing on the ballot— candidate ballot access was absolutely denied. In Anderson the Supreme Court identified two “basic constitutional rights,” — U.S. at —, 103 S.Ct. at 1568-69, 75 L.Ed.2d at 556, burdened by ballot restrictions — “[t]he right to vote is ‘heavily burdened’ if that vote may be cast only for major-party candidates” and “[t]he exclusion of candidates also burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views ... and a candidate serves as a rallying-point for like-minded citizens.” Id. — U.S. at —, 103 S.Ct. at 1569, 75 L.Ed.2d at 557 (footnote omitted). Neither interest is invaded in a case of this kind — the voters had a full choice of candidates, including Dart, and candidate Dart was available as a rallying point and campaign focus for Libertarians and other like-minded citizens. Dart seems to recognize that the State did not restrict his access to the ballot. Instead, he and the Libertarian Party argue that the Party was denied access to" }, { "docid": "17210851", "title": "", "text": "long recognized that candidate-eligibility requirements in state election laws implicate fundamental constitutional rights. See Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). The “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraced freedom of speech.” Id. at 787, 103 S.Ct. 1564 (quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)). Ballot-access restrictions place burdens on two kinds of rights — the right of individuals to associate for the advancement of political beliefs and the right of qualified voters of all political persuasions to cast their votes effectively. Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). However, not all restrictions imposed by the states on candidates’ ballot access impose constitutionally suspect burdens on voters’ rights to associate or choose among candidates. Anderson, 460 U.S. at 788, 103 S.Ct. 1564. States are granted authority to substantially regulate elections to ensure that they are fair, honest, and orderly through the enactment of election codes. Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). These codes affect to some degree the individual's right to vote and to associate with others for political ends, but the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. Anderson, 460 U.S. at 788,103 S.Ct. 1564. Signature requirements and the deadlines for submitting signatures have been upheld as constitutional. See Norman v. Reed, 502 U.S. 279, 295, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (upholding signature requirements); American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (upholding both signature requirements and deadline for obtaining signatures); Storer, 415 U.S. at 745-46, 94 S.Ct. 1274 (upholding signature requirements); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (upholding signature requirements); Texas Indep. Party v. Kirk, 84 F.3d 178, 186 (5th Cir. 1996) (upholding early May deadlines for submitting petition signatures). Indeed, the Supreme Court" }, { "docid": "12499578", "title": "", "text": "vote for any candidate of his choice, subject to reasonable conditions and qualifications imposed by the State. See Socialist Party v. Rhodes, 290 F.Supp. 983 (S.D.Ohio 1968). Hawaii's absolute ban on write-in voting also affects the rights of association and political expression of both voters and potential candidates. Canaan v. Abdelnour, 40 Cal.3d 703, 221 Cal.Rptr. 468, 473, 710 P.2d 268, 273 (1985). It is a well-established tenet that “speech concerning public affairs is more than self-expression; it is the essence of self government.” Id. at 479, 710 P.2d at 279. Being able to vote for the candidate of one’s choice, even when that candidate is not one of the listed candidates on the ballot, is the type of significant political expression which the First Amendment was designed to protect. Similarly, the First Amendment protects the right to freely participate in the electoral process. Political participation should not be limited to those who adhere to the ideals and goals of the major political parties, but should include all citizens who wish to publicly demonstrate support for a certain candidate or political theory. Socialist Party v. Rhodes, supra at 987. A ban on write-in voting directly burdens the voter’s right to freely vote for the candidate of his choice by completely precluding that voter’s choice. This burden is of a significant magnitude given the importance of the right impaired. There has been some suggestion that the right to be a candidate for political office, in and of itself, may not be a fundamental right. Dixon v. Md. State Administrative Election Laws, 878 F.2d 776, 779 (4th Cir.1989). This court recognizes that “not all restrictions imposed by the States on candidates’ eligibility ... impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates.” Anderson v. Celebrezze, 460 U.S. at 788, 103 S.Ct. at 1569. However, this court is not being asked to decide the constitutionality of an election statute restricting a candidate’s access to the ballot or the candidate’s right to have the State print his name on the ballot. This court must decide the constitutionality of Hawaii’s" }, { "docid": "17210850", "title": "", "text": "and his supporters, and violates his civil rights by discriminating against him in favor of the candidates of minor political parties. This Court held a bench trial on July 22, 2004. The parties filed and the Court accepted Joint Stipulations of Fact (Doc. # 15) and Supplemental Joint Stipulations of Fact (Doc.# 19) with regard to all substantive issues before the Court. See Fed. R. Crv. P. 52(a). The Court, having considered the pleadings in this cause, the parties’ stipulations, the testimony of Nader’s witness, Linda Curtis, concerning the difficulty Nader encountered in obtaining signatures, and the briefs and argument of counsel, concludes that sections 192.032(a), 192.032(b)(3)(A), 192.032(c), and 192.032(d) of the Texas Election Code pass constitutional muster for the following reasons. II. Analysis A. Level of Scrutiny Nader challenges the constitutionality and legality of these portions of the Texas Election Code on the ground that the disparity between the signature requirements and the signature deadlines for independent candidates and those for minor political-party candidates is discriminatory and unconstitutionally burdensome to independent candidates. Courts have long recognized that candidate-eligibility requirements in state election laws implicate fundamental constitutional rights. See Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). The “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraced freedom of speech.” Id. at 787, 103 S.Ct. 1564 (quoting NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)). Ballot-access restrictions place burdens on two kinds of rights — the right of individuals to associate for the advancement of political beliefs and the right of qualified voters of all political persuasions to cast their votes effectively. Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). However, not all restrictions imposed by the states on candidates’ ballot access impose constitutionally suspect burdens on voters’ rights to associate or choose among candidates. Anderson, 460 U.S. at 788, 103 S.Ct. 1564. States are granted authority to substantially regulate" }, { "docid": "17697440", "title": "", "text": "Anderson, an independent candidate for President, as well as the rights of his supporters. Ohio’s statute would have prevented Anderson’s appearance on the ballot in November but for the decision of the district court declaring the deadline unconstitutional. Anderson v. Celebrezze, 499 F.Supp. 121 (S.D.Ohio 1980). On appeal, following the election, this court reversed, finding that the deadline served an important state interest. Anderson v. Celebrezze, 664 F.2d 554 (6th Cir.1981). The Supreme Court reversed. The Court first noted that its conclusions were based on the “basic constitutional rights” found in the first and fourteenth amendments and not upon “a separate Equal Protection Clause analysis.” Anderson v. Celebrezze, 460 U.S. 780, 787 n. 7, 103 S.Ct. 1564, 1569 n. 7, 75 L.Ed.2d 547 (1983). The specific rights the Court had in mind were “the right of individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Id. at 787, 103 S.Ct. at 1569, quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). Despite . the Court’s characterization of these rights as “basic,” id. at 788, 103 S.Ct. at 1569-70, the Court held that “not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates.” Id. A state may have “important regulatory interests” in elections which are “sufficient to justify reasonable, non-discriminatory restrictions.” Id. (footnote omitted). The Court then articulated a balancing test for distinguishing those restrictions which serve “the State’s important regulatory interests” from those which impose unconstitutional burdens on voters. Id. Under this test a court “must first consider the character and magnitude of the asserted injury to rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Id. at 789, 103 S.Ct. at 1570. A court must then “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” Id. This evaluation includes determining “the legitimacy and" }, { "docid": "15546597", "title": "", "text": "right of citizens ‘to band together in promoting among the electorate candidates who espouse their political views.’ ” Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000)). Accordingly, “the impact of candidate eligibility requirements on voters implicates basic constitutional rights.” Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). “The exclusion of candidates ... burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens.” Id. at 787-88, 103 S.Ct. 1564. Also, because “voters can assert their preferences only through candidates or parties or both[,] ... [t]he right to vote is ‘heavily burdened’ if that vote may be cast only for major-party candidates at a time when other parties or other candidates are ‘clamoring for a place on the ballot.’ ” Id. at 787, 103 S.Ct. 1564 (quoting Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974)). Ballot access laws thus “place burdens on ... the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). Illinois’s filing deadline and signature requirements must be addressed together and their constitutionality determined on the basis of their combined effect on Lee’s political association rights as a voter and candidate. Nader, 385 F.3d at 735 (citing Wood v. Meadows, 207 F.3d 708, 711 (4th Cir.2000)). Ballot access restrictions are evaluated under a flexible standard that weighs the “ ‘character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the" }, { "docid": "17210852", "title": "", "text": "elections to ensure that they are fair, honest, and orderly through the enactment of election codes. Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). These codes affect to some degree the individual's right to vote and to associate with others for political ends, but the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. Anderson, 460 U.S. at 788,103 S.Ct. 1564. Signature requirements and the deadlines for submitting signatures have been upheld as constitutional. See Norman v. Reed, 502 U.S. 279, 295, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (upholding signature requirements); American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (upholding both signature requirements and deadline for obtaining signatures); Storer, 415 U.S. at 745-46, 94 S.Ct. 1274 (upholding signature requirements); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (upholding signature requirements); Texas Indep. Party v. Kirk, 84 F.3d 178, 186 (5th Cir. 1996) (upholding early May deadlines for submitting petition signatures). Indeed, the Supreme Court has recognized that “not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates.” Anderson, 460 U.S. at 788, 103 S.Ct. 1564. Thus, if the signature requirements and the deadline for submitting signatures for independent presidential candidates under the Texas Election Code were reviewed in isolation, precedent would support upholding both as constitutional. Requiring that an independent presidential candidate demonstrate that voters equal in number to one percent of those who voted for president in the last presidential election favor placing the candidate on the ballot, does not place an unreasonable burden on the candidate and satisfies the state’s legitimate interest in “as-sur[ing] itself that the candidate is a serious contender truly independent, and with a satisfactory level of community support.” Storer, 415 U.S. at 746, 94 S.Ct. 1274 (footnote omitted). And it is not unduly restrictive or unreasonable that the number of signatures required of an independent presidential candidate be linked to the votes cast in a presidential" }, { "docid": "3110042", "title": "", "text": "to its validity under the fourteenth amendment. The first in the series of ballot access cases both defined the nature of the constitutionally implicated interests and illustrated clearly impermissible burdens on those interests. In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the Court struck down particularly harsh restrictions to ballot access for presidential elections. Ohio required any political party that had failed to receive ten percent of the vote in the previous gubernatorial election to file a petition signed by a number of registered voters equal to at least fifteen percent of the votes cast in that election. The parties had to file their petitions nine months before the election in which they sought to participate; to comply with extensive and costly organizational demands; and to hold primary elections and nominating conventions. With these restrictions — • and by prohibiting write-in votes — Ohio virtually excluded minority parties and thus denied them equal protection of the law. The Court identified two interests behind a fourteenth amendment right-to-access rule: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” 393 U.S. at 30, 89 S.Ct. at 10. Subsequent cases have added precision to the Williams rule by identifying permissible or impermissible ballot restriction schemes. The next major decision, Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 127, 27 L.Ed.2d 114 (1971), upheld with little elucidation of relevant constitutional principles, Georgia’s five percent petition requirement. See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); American Party v. White, 415 U.S. 724, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). Unlike Jenness, these cases sometimes characterize the right to ballot access as fundamental and employ the language, if not always the analysis, of strict scrutiny. See Illinois State Board of Elections v. Socialist Workers Party, 99 S.Ct. at 992-93 (Blackmun, J., concurring); L. Tribe, American Constitutional Law 783 (1978). The justification for restricting access to the ballot is two-fold." }, { "docid": "12164610", "title": "", "text": "This delay, it is argued, caused the appellee to make a material change of position in reliance on the lack of any potential claim’s being pressed. By choosing to regulate elections, the state sets up a tension between state interests and individual rights. It has been held that the state has an interest in avoiding voter confusion, Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); American Independent Party v. Austin, 420 F.Supp. 670, 673 (E.D.Mich. 1976), through the reasonable regulation of the number of candidates. Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). The state also has a compelling interest in maintaining the stability of its electoral system, McCarthy v. Austin, 423 F.Supp. 990, 996 (E.D.Mich. 1976) (three judge court); cf. Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968), and may thus require a preliminary showing of a significant modicum of support. Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 185, 99 S.Ct. 983, 991, 59 L.Ed.2d 230 (1979). Although not as compelling as the citizen’s interest in casting an effective vote, Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972), the right to be a candidate has been recognized as an important and related interest. “Access restrictions also implicate the right to vote because absent recourse to referendums, ‘voters can assert their preferences only through candidates or parties or both’ . . By limiting the choice available to voters, the State impairs the voters’ ability to express their political preferences.” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979). In addition to implicating the right to cast one’s vote effectively, ballot access restrictions also have a correlative effect on the right to associate in order to advance one’s beliefs. See id. at 184, 99 S.Ct. at 990; Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (per curiam); Williams v. Rhodes, 393" }, { "docid": "3110043", "title": "", "text": "right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” 393 U.S. at 30, 89 S.Ct. at 10. Subsequent cases have added precision to the Williams rule by identifying permissible or impermissible ballot restriction schemes. The next major decision, Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 127, 27 L.Ed.2d 114 (1971), upheld with little elucidation of relevant constitutional principles, Georgia’s five percent petition requirement. See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); American Party v. White, 415 U.S. 724, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). Unlike Jenness, these cases sometimes characterize the right to ballot access as fundamental and employ the language, if not always the analysis, of strict scrutiny. See Illinois State Board of Elections v. Socialist Workers Party, 99 S.Ct. at 992-93 (Blackmun, J., concurring); L. Tribe, American Constitutional Law 783 (1978). The justification for restricting access to the ballot is two-fold. The state has a legitimate interest in avoiding “laundry list” ballots that confuse voters and in protecting the integrity of the democratic process from frivolous candidacies. Cases employing strict scrutiny language have termed this state interest “compelling.” See, e. g., Illinois State Board of Elections v. Socialist Workers Party, 99 S.Ct. at 991. A thoughtful exposition — and reconciliation — of the conflicting concerns is set forth in Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974). There, the Court invalidated California’s requirement that candidates for congressional, state, and county offices pay a nonrefundable filing fee of one or two percent of the annual salary, depending upon the position sought. 415 U.S. at 710, 94 S.Ct. at 1317. The Court held that the state could impose only those limitations “reasonably necessary” to screen out non-serious candidates. Because California left no alternative to the payment of a filing fee, it overburdened access to the ballot: Thus, California has chosen to achieve the important and legitimate interest of maintaining the integrity of elections" } ]

[ { "docid": "23523815", "title": "", "text": "were removed to the district court and consolidated into the present action on behalf of some 220 plaintiffs. Plaintiffs contended that under Emhart’s pre-1986 policy, they had accrued rights to severance benefits and that Emhart’s failure to pay those benefits upon the sale of the roll and machine shops violated their rights un der ERISA and under common-law contract principles. Following a period of discovery, defendants moved for summary judgment dismissing the complaint; plaintiffs cross-moved for partial summary judgment in their favor on the issue of liability. In a Ruling on Cross Motions for Summary Judgment dated February 16, 1990, the district court denied plaintiffs’ motion and granted defendants’ motion to dismiss. The court found that, assuming Emhart’s pre-1986 policy was a de facto ERISA plan, Emhart was free to modify, restrict, or terminate it without violating ERISA. Since it was clear that plaintiffs were not entitled to severance benefits under the SUB plans, the court concluded that plaintiffs’ ERISA claims were without merit. Further, the court ruled that ERISA preempted plaintiffs’ breach-of-contract claims. Upon plaintiffs’ motion for reconsideration, the court adhered to its decision, and judgment was entered dismissing the complaint. This appeal followed. II. DISCUSSION On appeal, plaintiffs contend principally (1) that the district court erred in ruling that Emhart was not obligated under ERISA to award them severance pay in accordance with the practice followed prior to the sale of the roll and machine shops, and (2) that under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), plaintiffs’ claims should be adjudicated in accordance with common-law contract principles. We disagree. A. The ERISA Claims In support of their contention that they were entitled to severance benefits under ERISA, plaintiffs argue principally that Emhart’s SUB plans were “irrelevant,” that ERISA did not permit Emhart to adopt the SUB plans in modification of its prior practice, and that under the prior practice, plaintiffs were entitled to severance pay. Neither the law nor the record supports plaintiffs’ position. Plaintiffs contend that though Emhart had no written severance benefit plan from 1981" } ]

[ { "docid": "16705066", "title": "", "text": "BOGGS, Circuit Judge. Plaintiffs appeal the order of the district court granting summary judgment for the defendant employer. The district court ruled that appellant’s state law claims were preempted by ERISA, and that the ERISA Plan in effect superseded all previous agreements. Plaintiffs now argue that ERISA does not govern, and that they are entitled to benefits based on previous agreements not superseded by the employer’s Plan. For the reasons stated, we affirm. I Appellants are all former employees of Barnes Pumps, Inc. Prior to July 25, 1988, Barnes Pumps, at that time known as Peabody Barnes, had no formal, written severance pay plan. However, it was the policy of the company to give severance benefits of one week for every year spent with the corporation. Effective July 25, 1988, Barnes Pumps adopted the Pullman Company Severance Pay Plan (“Pullman Plan”). This Plan codified the unwritten policy previously in effect. Participants would receive one week of severance pay for each full year of service, subject to a two-week minimum and a twenty-six week maximum. The clear terms of the Pullman Plan stated that no severance benefits were vested, and that Barnes Pumps reserved the right to modify, suspend, or terminate the Plan. Specifically, it stated: NO VESTING No participant or beneficiary will have any vested right to benefits under the plan. FUTURE OF THE PLANS While the Company intends to continue the Severance Pay Plan indefinitely, it is difficult to predict the future and an unqualified commitment is impossible. Thus, the Company reserves the right to modify, suspend or terminate the Plan, at any time and for any reason. No amendment, however, may deprive you of any benefit payments to which you are entitled at the time of amendment or termination. Should the Plan be modified, any claims incurred prior to the amendment date will be paid in accordance with the Plan provisions in effect prior to the modification. Any claims incurred on or after the amendment date will be paid in accordance with the new provisions. Should the Plan. terminate, all eligible claims incurred prior to the date of" }, { "docid": "2321043", "title": "", "text": "welfare benefit plan’ under ERISA”[ ]. Since severance benefits are welfare benefits and an employee’s interest in a welfare benefit plan is not vested, the employer has no continuing obligation to provide severance benefits; under ERISA, the employer has the right at any time to amend or terminate a severance pay plan. 921 F.2d at 429-30 (emphasis added) (citations omittéd). Even assuming that the summaries do not support their theory that the “welfare benefits” in the plan were vested, the plaintiffs assert that oral statements of a supervisor that the “welfare benefits” were “for life” were reliable representations, for purposes of estoppel, that such benefits were vested. The district court agreed with this argument. This contention, though, runs counter to the provision of ERISA, requiring that all benefits plans under ERISA to be established and maintained pursuant to a written instrument. As the Court in Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir.1986), put it, “[Tjhis requirement that ERISA plans be ‘maintained’ in writing precludes oral modifications of the plan; the common law doctrine of estoppel cannot be used to alter this result.” See also, Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120 (4th Cir.1989); Musto v. American General Corp., 861 F.2d 897, 910 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989); Straub v. Western Union Tel. Co., 851 F.2d 1262, 1265 (10th Cir.1988) (“Following the lead of the Eleventh Circuit, we hold that no liability exists under ERISA for purported oral modifications of the terms of an employee benefit plan”). , • It would appear clear from this review of the applicable statutes and the relevant precedents that, since the medical and hospital benefits involved here were not vested, such benefits were terminable at will by the employer. The only theory on which the plaintiffs could base a claim is the omission from the SPD of a statement clearly articulating the right of Security to terminate or change the plan unilaterally. But Security did not make any change in its hospital and medical benefits until January, 1989, and as of that" }, { "docid": "14334480", "title": "", "text": "standards for that year. Although Chevron made the promises alleged by plaintiffs and did not establish a specific reserve for Gulf Plan members, the Court concludes that plaintiffs cannot prevail on this claim for several reasons. First, these promises were not contained in a written plan document as required by § 402(a)(1) of ERISA, 29 U.S.C. § 1102(a)(1). Plaintiffs admit that the writings that contained these representations were not plan documents. (Plaintiffs’ Post-Argument Brief on Defendants’ Promise to Set Aside Plan Assets for Plaintiffs’ Benefit at p. 4) Since these claims do not arise out of an ERISA plan, they are not actionable under ERISA. Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1296-97 (5th Cir.1989); Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989). The mere fact that some of these representations were made in writing does not lead to a different result; the test is whether the claim is based on plan documents, not whether non-plan representations were oral or written. In Alday v. Container Corp. of America, 906 F.2d 660 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 675, 112 L.Ed.2d 668 (1991), the plan documents allowed the administrator to “terminate, suspend, withdraw, amend or modify the Plan in whole or part at any time.” 906 F.2d at 662. Forms and correspondence sent to individual plan members stated that health insurance was available to members and their dependents upon retirement at a modest cost. When the employer later amended the plan to modify these benefits and substantially raise employee contributions for retiree health benefits, the plaintiff class alleged that the employer had breached its fiduciary duty under ERISA and was promissorily es-topped from rescinding the representations contained in these non-plan written commu nications. In affirming the trial court’s summary judgment for the defendants, the Eleventh Circuit held that, notwithstanding that the employer communications were in writing, they were not plan documents under § 402(a) of ERISA, and therefore the employer did not breach its fiduciary duty in disregarding such communications and relying instead on ERISA documents. Plaintiffs’ promissory estoppel claim does not fare any" }, { "docid": "16705069", "title": "", "text": "effective date is October 4, 1990. Section 2.3 of the Barnes Plan states: “This Severance Pay Plan constitutes the entire severance pay plan and policy of Barnes Pumps ... and supersedes and replaces any and all other policies, plans, understandings, obligations, and agreements, whether express or implied, written or oral.” In May 1991, the plant that employed appellants closed, and all of the participants bringing this suit were terminated. These appellants were paid in accordance with the Barnes Plan that became effective in October 1990. Appellants then brought suit in state court, arguing that they were entitled to the benefits available under the pre-1988 policy, codified in the June 1988 Pullman Plan. Barnes Pumps removed the action to federal court, and then moved for summary judgment. The district court dismissed appellants’ state law claims, finding that they were preempted by ERISA. The court also found that the Barnes Plan was clear and unambiguous, and that it superseded all previous agreements. Accordingly, the court granted Barnes’s motion for summary judgment. The plaintiffs then brought this timely appeal. II The Pullman Plan initiated in 1988 is explicit. It clearly states \"that the Plan was not binding and that the company reserved the “right to modify, suspend, or terminate the Plan, at any time and for any reason.” It is well established that an employer who reserves the right to alter a plan may exercise that right. Musto v. American General Corporation, 861 F.2d 897, 907 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989); In re White Farm Equipment Company, 788 F.2d 1186 (6th Cir.1986). In this case, all of the appellants were terminated in May 1991. Prior to termination, the Pullman Plan had been replaced legally, by the Barnes Plan. Accordingly, the appellants clearly do not have a claim under .the Pullman Plan. Realizing the futility of relying upon the Pullman Plan in this appeal, appellants, all of whom were with the company prior to 1988, now turn for support to the pre-1988 policy of the company. They argue that the pre-1988 policy of providing severance" }, { "docid": "19725794", "title": "", "text": "9 at ¶ 14.01(a)(l)-(3). Paragraph 14.01(b) states that “[t]he Plan may be amended by written instrument executed pursuant to authorization by the company.” D.I. 9. These paragraphs unambiguously preclude amendment of the Plan as asserted by plaintiff. The Plan may give discretion as to when amendment occurs, but it does not provide discretion in how it occurs. Without a written instrument executed pursuant to company authorization, the Plan Administrator’s actions with respect to Mr. Byrne alone do not equate to a binding plan amendment. One additional detail prevents plaintiff from relying on the treatment of Mr. Byrne to establish that the defendants violated ERISA § 502(a)(1)(B). The Plan documents in force at the time of plaintiffs termination indicate that they became effective on January 1, 1989, after the termination of Mr. Byrne. This means that the Plan documents relied upon by plaintiff did not govern whether or not Mr. Byrne received Employer Contributions or Plan Forfeitures in the year of his termination. Thus, even if Mr. Byrne’s treatment amended the Plan in force at the time Mr. Byrne was terminated, plaintiffs complaint does not allege that that Plan gave her any rights at the time of her termination or that that Plan is equal in content to the Plan documents in force when the plaintiff was terminated. In short, no legal basis exists to support plaintiffs theory with regard to the Employer Contributions and Plan Forfeitures. Defendants’ second response deals with plaintiffs claim of entitlement to the trust income allocable to plaintiffs account for 1990. Defendants argue that plaintiff fails to state a claim because she “requested and received a distribution of her benefits prior to the last business day of December,” thereby forfeiting any interest in the 1990 trust income otherwise allocable to her account. D.I. 8 at 4. In support, defendants point to paragraph 8.03 of the Plan, which directs the Trustee to make distributions “as soon as is reasonably practicable” after receiving notice of the distribution from the Plan Committee. D.I. 9 at A-25. In other words, the defendants argue that it was “reasonably practicable” to make" }, { "docid": "22436918", "title": "", "text": "OPINION OF THE COURT BECKER, Circuit Judge. Plaintiffs appeal from a grant of summary judgment to the defendant corporations, which formerly employed the plaintiffs and which declined to make certain severance payments to plaintiffs when they were involuntarily terminated. Plaintiffs contend that they are entitled to those payments under the terms of an ERISA welfare plan defendants had created in 1985. Defendants respond that the 1985 plan was amended in 1987, before plaintiffs’ termination, and that plaintiffs received all the benefits to which they were entitled under the amended, less generous plan. Plaintiffs contend that defendants, by unilaterally amending their severance plan in order to deny plaintiffs the additional benefits, violated fiduciary duties imposed on them by ERISA. We agree with defendants that they were not acting in their capacity as an ERISA fiduciary when they sought to promulgate the amendment, and that the amendment therefore cannot be struck down on that basis. However, we agree with the plaintiffs’ contention that ERISA precludes oral modification of employee benefit plans. Because defendants concede that the purported 1987 amendment was never reduced to a writing before plaintiffs were terminated, we conclude as a matter of law that the unamended 1985 plan must govern plaintiffs’ claims for severance benefits. Plaintiffs contend that in evaluating their entitlement to benefits under the 1985 plan, the trier of fact must consider not only the terms of that plan, but also the defendants’ failure to comply with ERISA’s reporting and disclosure provisions. We reject this contention. However, we conclude that the terms of the plan, considered in light of other record evidence bearing on the proper construction of those terms, are sufficiently ambiguous that a reasonable trier of fact could find that plaintiffs are entitled to benefits. Accordingly, we will reverse and remand for a trial on that issue. I. BACKGROUND The following facts are essentially undisputed. Prior to July 1985, defendant Erico International Corporation (“EIC”) was involved in the stud welding industry through the Erico-Jones Company, a wholly owned subsidiary of EIC. On July 15, 1985, EIC purchased KSM Fastening Systems, Inc. (“KSM”), a competitor of" }, { "docid": "20056846", "title": "", "text": "OPINION COHEN, Senior District Judge: In this action for damages and equitable relief, plaintiff Joseph Pane, Director of Special Programs for defendant RCA Corporation (“RCA”), alleges that RCA violated his rights under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and under New Jersey tort and contract law. Presently before the Court are motions by defendant (1) to dismiss plaintiff’s state law claims, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that they are preempted by ERISA, (2) to strike plaintiff’s claim for punitive and exemplary damages because such damages are not recoverable under ERISA, and (3) to strike plaintiffs jury demand because ERISA claims do not afford a right to trial by jury. Plaintiff’s complaint charges that, on or about December 8, 1985, RCA adopted an employee severance plan, under which its Vice Presidents and General Managers were to receive lump sum termination benefits. Complaint ¶ 4. At the time this plan was adopted, RCA and General Electric Company (“GE”) were engaged in merger negotiations. Complaint ¶ 5. Plaintiff maintains that on December 13,1985, while he was serving as Vice President and General Manager of RCA’s Aerospace and Defense Government Volume and Production Division, he was offered a severance agreement pursuant to this plan, which he accepted. He further asserts that he later received oral and written confirmations of this agreement.- Complaint IHI5 — 11. He charges that defendant withheld from him the benefits of the severance plan and agreement, and that, when he attempted to exercise his rights thereunder defendant retaliated against him by, inter alia, demotions, reductions in compensation and false disparagements of his abilities to others. Complaint Ml 13-15. Count I of the complaint asserts that the plan adopted on December 8, 1985, is an employee benefit plan within the meaning of ERISA, and that defendant’s conduct violated various provisions of ERISA. Count II charges a violation of defendant’s agreement to provide plaintiff with a written severance agreement. Count III alleges a violation of the severance agreement itself, and Count IV seeks damages for the intentional infliction of emotional distress." }, { "docid": "23548024", "title": "", "text": "Panaras’ allegation of prejudice. This point requires more extensive discussion. Although we agree with the district court that Panaras has failed to ade quately allege the prejudice necessary to survive a Rule 12(b)(6) motion, we believe that the district court’s analysis of the prejudice issue was too narrow. That court’s analysis too closely cabined the potential for prejudice, which might, in other eases, result when employers violate the notification provisions of ERISA with respect to welfare benefit plans. With respect to prejudice, the Complaint suggests only that: Plaintiff would have made other financial arrangements to cover any periods of unemployment following his termination from Defendant^] if Plaintiff knew that he would not receive benefits under Defendants’ Severance Plan unless he released all of his employment rights, including rights arising out of his termination due to age or other discriminatory reasons. Defendants press upon us, and the court below apparently accepted, the contention that, because LCI reserved the right to modify its severance benefits at any time, no prejudice could possibly have resulted from a failure to learn of the changes in the plan’s provisions in advance. Def.Br. at 21-22; Mem.Op. at 7 (“Since the plaintiff admits that, after learning of the condition, he was given ample time to sign the release and thereby qualify for benefits, the defendants’ alleged failure to inform him of the condition at an earlier time caused no prejudice to the plaintiff.”) Given such an interpretation of the prejudice requirement, no violation of the notice requirement involving a severance plan could ever give rise to a cognizable legal claim. We decline to go this far. It is true that LCI’s old severance plan clearly reserved a right to modify, or even terminate the plan. It stated: The severance benefits described hereunder are revocable or otherwise subject to change or alteration at the discretion of appropriate company representatives without prior notice to affected employees. Nothing in this bulletin should be interpreted or construed to establish or be part of any expressed, implied, written or oral contract of employment. Ex.A, Def.Mem. in Support of Motion to Dismiss. The" }, { "docid": "22436936", "title": "", "text": "a claim for breach of fiduciary duty, not just a claim “to recover benefits due ... under the terms of [a] plan.” ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). In deciding to amend the plan, Craven did not — indeed could not— have breached any fiduciary duties, because he simply was not acting as an ERISA fiduciary. Therefore, the district court did not err in granting summary judgment for defendants on count one. III. THE CLAIM FOR BENEFITS Plaintiffs’ third cause of action seeks benefits under the terms of defendants’ severance plan. See ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). The plan, how ever, was purportedly amended in 1987, before plaintiffs’ termination, so as to make plaintiffs ineligible for any benefits above and beyond what they have already received. Thus, plaintiffs must establish two propositions in order to prevail: first, that the purported 1987 amendment had no legal effect as of the date they were discharged, and second, that they are entitled to benefits under the terms of the unamended 1985 plan. A. Which Plan Controls? We agree with the plaintiffs’ contention that ERISA precludes oral amendments to employee benefit plans. Because defendants concede that the purported 1987 amendment was never reduced to a writing before plaintiffs were terminated, we conclude as a matter of law that the unamended 1985 plan must govern plaintiffs’ claims for benefits. Section 402(a)(1) of ERISA requires that “[e]very employee benefit plan shall be established and maintained pursuant to a written instrument.” 29 U.S.C. § 1102(a)(1). Relying primarily on this provision, the Eleventh Circuit in Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986), held that “ERISA precludes oral modifications of employee benefit plans.” Id. at 960. Since Nachwalter, at least five different circuits have agreed. See Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120 (4th Cir.1989) (stating that “informal” or “unauthorized” modification of pension plans is “impermissible” under ERISA); Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989) (“ERISA mandates that [a] plan itself and any changes made to it [are] to be in writing.”); Musto v. American General Corp., 861 F.2d" }, { "docid": "13023154", "title": "", "text": "plainly required some sort of an administrative set-up in order to make payments to employees. III. The plaintiffs assert that if the Schlumberger plan is an ERISA plan, Schlumberger violated it by failing fully to disclose the terms of the amendment to the employees prior to their termination. The plaintiffs concede, however., that the amendment “technically occurred] before the employees’ termination.” Even if this concession were not enough, the district court specifically found that Schlumberger complied with ERISA’s disclosure requirements in that “plaintiffs admit receiving copies of the amended severance ... plan on February 7, and admit receiving a summary description of this plan change on March 8, 1989.” The plaintiffs do not dispute these facts. The plaintiffs acknowledge that Schlum-berger gave notice within the time permitted by ERISA. They argue only that “such a technical reading of the disclosure provisions ... work [sic] an inequitable result and give [sic] effect to form over substance.” We conclude, to the contrary, that Schlumberger was entitled to give notice within the statutory notice period and was not required to provide it sooner. The plaintiffs’ argument is without merit. IV. The plaintiffs aver that their right to severance benefits had vested, precluding any amendment. They admit, however, that “ordinarily, severance benefits are unaccrued, unvested benefits which an employer has no continuing duty to provide.” The strongest argument they can muster for the proposition that the instant severance benefits are vested is that they “have been unable to find any case law which conclusively holds that, under ERISA, severance benefits never vest.” In fact, severance benefits consistently have been held not to vest. See, e.g., Reichelt v. Emhart Corp., 921 F.2d 425, 430 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2854, 115 L.Ed.2d 1022 (1991); Young v. Standard Oil (Ind.), 849 F.2d 1039, 1045 (7th Cir.), cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988). V. The plaintiffs argue that if the amended plan does not apply to them because of Schlumberger’s failure to make proper disclosure, they are entitled to de novo review of the denial of their" }, { "docid": "3268927", "title": "", "text": "RULING ON PENDING MOTIONS NEVAS, District Judge. In this nine-case consolidated action, brought under the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. Sections 1001 et seq., nine plaintiffs seek to recover severance pay to which they claim they are entitled pursuant to a company severance pay policy purportedly governed by ERISA. The plaintiffs also seek from each defendant “appropriate equitable relief, including punitive damages,” and reasonable attorneys’ fees and costs. The defendants have moved the court to strike the plaintiffs’ jury demands and claims for punitive damages. They also ask the court to dismiss the actions as against the defendant Royal E. Cowles, whom the plaintiffs have sued in his alleged capacity as the severance pay plan’s administrator. Ruling from the bench at the conclusion of oral argument on the motions on March 11,1988, the court granted the motion to strike for reasons stated on the record and herein memorialized and expanded upon. Having reserved ruling on the motion to dismiss, the court now denies it, for the reasons that follow. Background The nine plaintiffs were employed at the Farrel Roll Shop (“plant”), which was operated by a division of defendant USM Corporation, which was in turn a wholly-owned subsidiary of defendant Emhart Corporation. At all times pertinent to this action, the defendant Royal E. Cowles was Emhart’s Vice President for Human Resources. On May 2, 1986, having sold the Farrel plant, Emhart ceased employing the plaintiffs, who continued to work at the plant under its new owner. According to the complaint, the defendants maintained a severance pay policy which provided that an employee terminated for reasons other than misconduct would receive severance pay amounting to one week’s earnings (calculated as of the time of termination) for every year of employment. The plaintiffs demanded such severance pay when they were dismissed, but it was denied them. Because there existed no formal internal appeals procedure, the plaintiffs had no private means of pressing their case with their employer. Although the severance pay policy was informal, unwritten, and unfunded, the plaintiffs assert that it constituted a “plan, fund or" }, { "docid": "1366839", "title": "", "text": "learn their rights and obligations under the plan at any time.” Id. at 83,115 S.Ct. 1223. In light of these goals, several circuit courts have held that only those written documents that clearly indicate that a plan is being changed or terminated meet ERISA’s procedural requirements. The Fifth Circuit was the first court to articu late this principle in Borst v. Chevron Corp., 36 F.3d 1308, 1323 (5th Cir.1994), where it explained that—for the same reasons that an “oral agreement cannot sustain a cause of action under ERISA”— neither can “written modifications or promises which are not, and do not purport to be, formal amendments of a plan.” See also Kalda v. Sioux Valley Physician Partners, Inc., 481 F.3d 639, 648 (8th Cir.2007); Sprague v. General Motors Corp., 133 F.3d 388, 403 (6th Cir.1998). Our precedent also recognizes that “Congress intended ERISA insurers to speak clearly, in plain language, to plan recipients.” Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113, 132 (1st Cir.2004). The question before us is whether Bowa-ter’s actions in its 1999 sale of GNP or in its 2003 plan consolidation complied with ERISA’s requirements and terminated its responsibilities for these ERISA plans. The principles outlined above guide our review. A. The Effect of GNP’s Sale to Inexcon Bowater advances two related arguments to support its position that its responsibility for benefits under ERISA terminated when it sold GNP to Inexcon in 1999. First, it argues that the act of selling a subsidiary—in and of itself—terminates a parent company’s responsibilities for such benefits. Second, it argues that even if we reject such an “automatic termination” rule, the particular documents and actions through which Bowater sold GNP ended its obligations. Plaintiffs counter that the case law does not support a per se rule automatically terminating a parent company’s benefit responsibilities upon sale of a subsidiary and that such a rule would undermine the procedural protections afforded by ERISA. In addition, they argue that neither the terms of the SPA nor any other documents or actions related to the sale of GNP to Inexcon fulfilled these procedural" }, { "docid": "18403276", "title": "", "text": "Ferrer’s case as the lead case. The court subsequently granted Chevron’s motion for partial dismissal of Ferrer’s case, holding that Ferrer failed to plead with particularity his breach of fiduciary duty claim, which was based on Chevron’s alleged misrepresentations. In amended complaints, the plaintiffs more specifically asserted that Chevron breached its duty as an ERISA-plan fiduciary by misrepresenting the eligibility requirements for SITE benefits in several oral and written communications. Although the plaintiffs did not allege that anyone in their job groups was involuntarily terminated without cause or “allowed to participate” in the SITE plan, they maintained that Chevron’s misrepresentations caused them to retire voluntarily. They alleged that Chevron has refused to allow them to participate in the SITE plan, and they sought “equitable civil relief,” citing 29 U.S.C. § 1132(a)(3), but demanded “all benefits due and owing under the plan.” After Ferrer’s case had been pending for eighteen months, Chevron moved to dismiss all of the lawsuits under Fed. R. Civ. P. 12(b)(6). Among other contentions, Chevron argued that the plaintiffs could not state a claim for breach of fiduciary duty because the decision regarding which employees would be terminated was discretionary and that this court held in Boddine v. Employers Casualty Co. that an employer’s discretionary decision whether to terminate an individual’s employment does not give rise to any ERISA fiduciary obligations even if the decision affects a plan participant’s eligibility for enhanced retirement benefits. Chevron further averred that the plaintiffs could not prevail on a breach of fiduciary duty claim because the alleged misrepresentations did not cause their damages. The district court granted the motions to dismiss the plaintiffs’ lawsuits. II We review the district court’s 12(b)(6) dismissals de novo. We construe the plaintiffs’ complaints in the light most favorable to them, accepting all well-pleaded facts as true, but “[w]e do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” A written document that is attached to a complaint as an exhibit is considered part of the complaint and may be considered in a 12(b)(6) dismissal proceeding. A claim cannot be dismissed under rule" }, { "docid": "546709", "title": "", "text": "420 (1983)); see also Burnham v. Guardian Life Insurance Company of America, 873 F.2d 486, 489 (1st Cir.1989). Development of this federal common law under ERISA must be guided by principles of trust law. Bruch, 489 U.S. at 110-111, 109 S.Ct. at 954. Courts must construe employee benefit plans “without deferring to either party’s interpretation.... The terms of trusts created by written instruments are ‘determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the set-tlor with respect to the trust as is not inadmissible.’ ” Bruch, 489 U.S. at 112, 109 S.Ct. at 955 (citing Restatement (Second) of Trusts § 4, Comment d). As these principles illustrate, “the validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue.” Bruch, 489 U.S. at 115, 109 S.Ct. at 956. II. The terms of the employee benefits plan at issue here are found in Defendant’s employee handbook and personnel manual. According to the unambiguous language of that plan, severance pay benefits are available when Defendant “need[s] to terminate an employee for lack of work, poor business conditions, or change in business focus.” It is uncontradicted that Plaintiffs were hired to perform the maintenance functions under Defendant’s contracts with NSC; it is also uncontradicted that NSC, for economic reasons, decided to cancel those maintenance contracts. The contract cancellation eliminated Defendant’s need for Plaintiffs’ positions, and thus Defendant’s employment of Plaintiffs was terminated. The Court concludes, after accepting those material facts set forth by Defendant which are supported by appropriate record citations, that Defendant terminated Plaintiffs due to the “lack of work” caused by the NSC contract cancellation. Under the unambiguous language of the severance pay plan, those terminations rendered Plaintiffs eligible for severance pay. Defendant contends that an exclusion to the severance pay policy exists where a laid-off employee immediately obtains comparable employment. However, this additional proviso does not appear in the writings evidencing the severance pay plan. The Court holds that Defendant may not rely" }, { "docid": "6808541", "title": "", "text": "some pension losses, in consideration for her agreement to waive any ADEA claimsId. at 362 n. 3 (emphasis added). The Courts also notes the following language from the Sejman decision: “ ‘[T]he accrued benefits secured by ERISA do not encompass unfunded, contingent early retirement benefits or severance payments. The Act was not designed to prohibit modifications of these ancillary benefits.’ ” Sejman v. Warner-Lambert, 889 F.2d at 1348. Based on the O’Shea decision, ERISA preempts state contract law with respect to a release obtained in exchange for severance benefits. Applying the Sejman decision, an employer may unilaterally terminate or amend an ERISA severance plan, because severance benefits are contingent and unaccrued. The O’Shea court allowed the Defendant employer unilaterally to condition severance benefits upon execution of a release, irrespective of whether those benefits constituted consideration under state contract law. ’ The appellate court essentially dismissed Plaintiffs argument that she had a preexisting right to “accrued” severance pay. Applying the O’Shea ruling, the Court concludes the June 23 releases were supported by consideration in the form of an ERISA severance plan, regardless of whether the same severance benefits “accrued” pursuant to the May 29 letter. State contract law regarding preexisting consideration is preempted by the employer’s unilateral right to amend or eliminate a severance plan under ERISA. Accordingly the Court grants summary judgment with respect to all claims filed by the 721 workers who signed releases. The next issue concerns pending counts raised by the 184 remaining plaintiffs. COUNT ONE The Defendant claims count one should be dismissed based on the at will nature of Plaintiffs’ employment, the Belknap Agreements, and the Statute of Frauds. The Defendant als.o seeks dismissal of the count one claim for punitive damages, emotional distress damages, and damages arising from Plaintiffs’ expenses in seeking other employment. The Plaintiffs oppose dismissal based on Defendant’s oral and written representations regarding job security. The Plaintiffs also oppose dismissal of any damages claim. For reasons discussed below, the Court denies summary judgment on count one, with the exception of the claim for punitive damages. A. AT-WILL EMPLOYMENT AND THE BELKNAP" }, { "docid": "6808536", "title": "", "text": "of the complaint asserts Plaintiffs were wrongfully discharged, in breach of an implied and express employment contract under which Plaintiffs were promised they would not be discharged or replaced by returning union workers. Count two claims RAC faded to fully compensate the Plaintiffs for earned fringe benefits and severance benefits, in violation of the West Virginia Wage Payment and Collection Act. W.Va.Code § 21-5-1 et seq.. Count three alleges the Defendant failed to provide plaintiffs with sixty (60) days written notice of their termination, in violation of the Worker Adjustment and Retraining Notification Act (“WARN Act”). 29 U.S.C. § 2104(a)(5). Count four has already been dismissed pursuant to agreed stipulation. Lastly, count five asserts that RAC breached an implied covenant of good faith and fair dealing between the Plaintiffs and the company. EMPLOYEE RETIREMENT INCOME SECURITY ACT The first issue concerns severance benefits offered in the May 29 and June 23, 1992 letters. The Court notes “that plans established by an employer to provide severance benefits are employee welfare benefit plans within the meaning of [the Employee Retirement Income Security Act (“ERISA”) ].” Biggers v. Wittek Industries, Inc., 4 F.3d 291, 297 (4th Cir.1993); Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1145-46 (4th Cir.1985). As a general rule, an employee welfare benefit plan includes plans which provide benefits in the event of unemployment. 29 U.S.C. § 1002(1)(A). Based on Biggers and Holland, the May 29 and June 23 letters constitute employee welfare benefit plans under ERISA. One month’s severance pay, extended medical coverage, and preferential hiring constitute severance benefits provided in the event of unemployment, and therefore meet ERISA’s broad definition of a welfare benefit plan. Under ERISA statute, state law is preempted to the extent it relates to any employee benefit plan. 29 U.S.C. § 1144(a). State law “relates to” an employee benefit plan “if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). ERISA preemption must be given broad effect because of what the Court of Appeals" }, { "docid": "16705070", "title": "", "text": "appeal. II The Pullman Plan initiated in 1988 is explicit. It clearly states \"that the Plan was not binding and that the company reserved the “right to modify, suspend, or terminate the Plan, at any time and for any reason.” It is well established that an employer who reserves the right to alter a plan may exercise that right. Musto v. American General Corporation, 861 F.2d 897, 907 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989); In re White Farm Equipment Company, 788 F.2d 1186 (6th Cir.1986). In this case, all of the appellants were terminated in May 1991. Prior to termination, the Pullman Plan had been replaced legally, by the Barnes Plan. Accordingly, the appellants clearly do not have a claim under .the Pullman Plan. Realizing the futility of relying upon the Pullman Plan in this appeal, appellants, all of whom were with the company prior to 1988, now turn for support to the pre-1988 policy of the company. They argue that the pre-1988 policy of providing severance benefits was irrevocable, and that they had a vested right to the benefits it conferred. Appellants state them position in the alternative. They first argue that this pre-1988 policy does not constitute an ERISA plan, and therefore, ERISA rules do not apply. If ERISA rules do not apply, appellants argue that remand is proper. On the other hand, appellants argue that if the pre-1988 policy does constitute an ERISA Plan, vesting occurred, and the benefits it provided cannot be revoked. Appellants’ position is incorrect. First, the unwritten policy in existence prior to 1988 constitutes an ERISA Plan. Adams v. Avondale Industries, Inc., 905 F.2d 943 (6th Cir.), cert. denied, 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 529 (1991), is directly on point. In Adams, the appellants brought suit alleging that a written plan improperly amended their benefits under an oral agreement. The court squarely treated the oral policy as an’ERISA plan. The court ruled that the written policy constituted a valid amendment of the “unwritten pay plan.” Id. at 950. The present case is" }, { "docid": "17449681", "title": "", "text": "Fort Halifax, Ceridian’s obligation to pay severance to Employees is predicated on the occurrence of a single contingency that may never materialize. The employer may well never have to pay the severance benefits. To the extent that the obligation to do so arises, satisfaction of that duty involves only making a single set of payments to employees .... To do little more than write a check hardly constitutes the operation of a benefit plan. Once this single event is over, the [former] employer has no further responsibility. The theoretical possibility of a one-time obligation in the future simply creates no need for an ongoing administrative program for processing claims and paying benefits. Fort Halifax, 482 U.S. at 12, 107 S.Ct. 2211 (first emphasis added) (footnotes omitted). As in Crews, where we held that differences between the existing ERISA plan and the promised benefits led us “to conclude that the promised benefits were free-standing and were not premised in any way on the existing plan,” Crews, 274 F.3d at 505-06, Ceridian’s promise to provide severance to Employees if terminated by Grey Fox within their first year of employment does not constitute an ERISA plan or demonstrate that the promised benefits were premised on an ERISA plan. B. ERISA requires that “[e]very employee benefit plan shall be established and maintained pursuant to an written instrument.” 29 U.S.C. § 1102(a)(1). Courts have interpreted § 1102(a)(1) to preclude oral modifications of or amendments to ERISA plans. United Paperworkers Int’l Union v. Jefferson Smurfit Corp., 961 F.2d 1384, 1386 (8th Cir.1992). The district court granted summary judgment in favor of Grey Fox and General Dynamics in part because it reasoned that the oral promise by Ceridian to provide severance to Employees, if terminated by Grey Fox, constitutes an impermissible oral amendment to the Ceridian plan, as it contradicts the terms of the Ceridian plan that detail when severance payments will be made to participants in that plan. The district court determined as a matter of law that “oral statements, in the presence of an existing, formal ERISA plan, cannot be enforced.” Oral statements are unenforceable" }, { "docid": "22278836", "title": "", "text": "an employee severance plan under which its Vice Presidents and General Managers were to receive lump sum termination benefits. The plaintiff was offered and accepted a severance agreement pursuant to the plan, but the defendant subsequently withheld the promised benefits. Plaintiff instituted suit contending, inter alia, that defendant breached a separate contract to include him in the severance plan and that this claim was not preempted by ERISA. He further contended that there was nothing in ERISA or in recent Supreme Court cases interpreting its preemption clause which prevented an employee from seeking state law enforcement of a non-ERISA contract. The Court concluded that “the dispute over this alleged non-ERISA agreement [was] closely tied to the issue of plaintiff’s inclusion in the severance plan,” and was related to an ERISA plan and preempted by ERISA. In summary, we find that the express language of § 1144(a), its legislative history, and the jurisprudence, mandate a finding that ERISA preempts Cefalu’s state law cause of action for breach of contract. IV. Does ERISA Preclude Enforcement of Oral Modification to Written Pension Plans? Having concluded that ERISA preempts appellant’s state law claim, we must now decide whether ERISA precludes oral modifications to written pension plans. ERISA was enacted to “promote the interests of employees and their beneficiaries in employee benefit plans,” and “to protect contractually defined benefits.” Under § 1102(a)(1) of ERISA,” [e]very employee benefit plan shall be established and maintained pursuant to a written instrument.” We find that oral agreements or modifications to a pension plan are contrary to the express provisions of ERISA. Therefore, we conclude that any oral agreements or modifications relied on by the appellant cannot support his claim for recovery herein. The policy behind the “written instrument” clause in ERISA is to prevent collusive or fraudulent side agreements between employers and employees. But for the “written instrument” clause, employees could discriminate in favor of certain plan participants to the detriment of others. In addition, the writing requirement gives the plan’s participants and administrators a clear understanding of their rights and obligations. Employees who rely on a written benefit" }, { "docid": "23548025", "title": "", "text": "to learn of the changes in the plan’s provisions in advance. Def.Br. at 21-22; Mem.Op. at 7 (“Since the plaintiff admits that, after learning of the condition, he was given ample time to sign the release and thereby qualify for benefits, the defendants’ alleged failure to inform him of the condition at an earlier time caused no prejudice to the plaintiff.”) Given such an interpretation of the prejudice requirement, no violation of the notice requirement involving a severance plan could ever give rise to a cognizable legal claim. We decline to go this far. It is true that LCI’s old severance plan clearly reserved a right to modify, or even terminate the plan. It stated: The severance benefits described hereunder are revocable or otherwise subject to change or alteration at the discretion of appropriate company representatives without prior notice to affected employees. Nothing in this bulletin should be interpreted or construed to establish or be part of any expressed, implied, written or oral contract of employment. Ex.A, Def.Mem. in Support of Motion to Dismiss. The fact that a benefit plan might be terminated at the employer’s whim, however, does not inevitably imply that employees are not harmed if they are not informed that the benefit program has been eliminated or downgraded. While they may not be guaranteed any particular welfare benefits, employees depend on ERISA for assurance that they will at least know what their benefits are so that they can plan accordingly. Employees often rely, at least in part, on the menu of welfare benefits offered by an employer in choosing one offered job over another or in deciding whether to remain with a current employer or to seek employment elsewhere. Even though employers retain the power to alter these benefit plans whenever it suits them, workers necessarily base their decisions on the best information available to them and allocate their financial resources in light of their best estimates of their needs. Employees who are currently covered by a medical, severance or other welfare benefit plan may quite rationally make different financial decisions than those who are not. This" } ]

[ { "docid": "5377999", "title": "", "text": "by our decision in Rea v. Ford Motor Co., 497 F.2d 577, 590 (3d Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974). However, to the extent that Glauser Dodge claims an injury other than loss subsidies, we are compelled to address the question left unanswered by this court in Rea —i. e., whether a manufacturer’s subsidization of its partially or wholly owned dealerships for the purpose achieving market penetration violates § 1. In this case, the evidence was that the subsidy took the form of capital investments, absorption of start-up expenses, and favorable credit arrangements. But plaintiff’s theory of injury to competition would be equally applicable to any form of subsidy. Moreover, the effect on competition would be the same if the subsidies of which Glauser Dodge complains came from a source other than Chrysler. For example, if, instead of Chrysler’s investments, the four DE dealers had obtained more favorable lines of credit with banks and higher private venture capital investment, their ability to subject the plaintiff to intense price competition would be the same. Elimination of such competition cannot be the object of § 1 of the Sherman Act. Cf. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). Yet all that distinguishes the instant case from that of the hypothetical better-financed private dealer is the source of the financing and the motive — market penetration — of the financing manufacturer. The fact that the source of the subsidy is the manufacturer itself, we conclude, does not under a rule of reason analysis of the facts bring this case within the reach of § 1 of the Sherman Act. The object of the antitrust laws is the enhancement of competition, while in essence Glauser Dodge argues that it is entitled to be insulated from competition encouraged by a manufacturer. Absent forward vertical integration whose purpose or actual operation is to concentrate Dodge sales in the hands of the Chrysler-owned dealers, the subsidies have a pro-competitive effect, at both the intrabrand and the interbrand levels. Accordingly, the motion" } ]

[ { "docid": "7745454", "title": "", "text": "patents in suit. There was clearly nothing unusual about the agreement of settlement, since the defendant in that case apparently admitted validity and infringement. The only other complaint of the plaintiff is that the defendant reduced its prices on competitive articles of manufacture. This conduct was not in and of itself illegal. The very right to compete in a free market presupposes a right to lower prices in good faith to meet the prices of one’s competitors on comparable articles of manufacture. There is no evidence in this case that the price reductions were not effected in good faith and for the purpose of meeting competition; there is no evidence, for example, that the prices were either below cost or unreasonable in the light of competitive conditions. It should be noted that the absence of evidence concerning price policies is due solely to the reluctance of both the plaintiff and defendant to furnish it. (See page 728 of the record.) The statement of the Court in Ben Hur Coal Co. v. Wells, 10 Cir., 242 F.2d 481, at page 486, certiorari denied 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1427, is apposite. It was therein stated: “We cannot say, however, that a pricing policy based upon sound economics is inadmissible simply because it may result in the destruction of a competitor, for it is not within the scope or purpose of the antitrust laws to protect the business against loss in a competitive market. (Citation omitted.) One who reduces his prices in defense of his economic life cannot be guilty of eliminating competition or his competitors.” Whether or not the price policies of the plaintiff and the defendant were based upon sound economics we cannot decide, and this because of the reluctance of the litigants to produce the evidence upon which such a decision could be made. The plaintiff relies on the case of Moore v. Mead’s Fine Bread Co., 348 U. S. 115, 75 S.Ct. 148, 99 L.Ed. 145. The cited case is distinguishable from the present one. There the evidence was sufficient to support a factual determination" }, { "docid": "11231546", "title": "", "text": "according to its own figures its nationwide sales have not declined quite as noticeably during the relevant period: CHECKER MOTORS CORPORATION Annual Taxicab Sales New United York States City 1960 5,943 1,385 1961 4,219 1,667 1962 5,603 1,666 1963 4,969 1,221 1964 3,967 247 1965 4,050 240 Although Checker claims that the Rebate Plan has been a cause in the decline in Checker’s sales, Chrysler sets out other reasons for its difficulty. First, in New York City a taxicab owner is required to have a medallion to operate a taxi vehicle. Prior to 1953 National Transportation Co. (National), a Checker subsidiary, controlled in excess of 1,600 of the total of approximately 11,000 taxicab medallions, or franchises, authorized by the City of New York. Chrysler contends that beginning in that year, under pressure from Government antitrust litigation, National began to systematically sell its medallions to various New York City taxicab fleet operators. However, as a condition to the sale of its medallions, Checker would require the medallion purchaser to replace its entire fleet for the year with its taxicabs. By 1964, Checker had parted with the last of its 1,600 medallions with a resulting loss of this weapon for maintenance of its sales of taxicabs in New York. Moreover, Chrysler points to facts indicating that Checker’s president, Morris Markin, has contributed to the company’s loss of New York City sales by antagonizing that city’s taxicab fleet owners over the years through public statements in favor of higher wages for taxi drivers and against increases in cab fares. Even if it is assumed that the plan resulted in Chrysler dealers taking away sales from Checker, it is doubtful whether this is a permissible consideration, in the absence of a showing of predatory tactics, such as sales below cost or a scheme to squeeze Checker out of the market in order to destroy its competition and have it to themselves, since the purpose of the Sherman Act is to protect competition, not competitors. Ben Hur Coal Co. v. Wells, 242 F.2d 481, 486 (10th Cir.), cert. denied, 354 U.S. 910, 77 S.Ct. 1296," }, { "docid": "17209880", "title": "", "text": "adverse ruling on the antitrust claim and defendants appeal, attacking, inter alia, the jury verdict. II. We turn first to Malley-Duff’s contention that the district court erred in adversely directing a verdict on its antitrust claim. Section 1 of the Sherman Antitrust Act prohibits “[e]very contract, combination ... or conspiracy, in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. Courts have narrowed the apparent scope of § 1 and have concluded that it precludes only those contracts or combinations that “unreasonably” restrain competition. Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Generally, a “rule of reason” analysis is employed to determine whether § 1 has been violated. Under this analysis, a plaintiff must show anticompetitive effect in the relevant product and geographic markets. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). The Supreme Court has stated, however, that “there are certain agreements or practices which because of their pernicious effect on competition and lack, of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific, 356 U.S. at 5, 78 S.Ct. at 518. Activities that have been treated as per se illegalities are price fixing, resale price maintenance, group boycotts, tying arrangements, and certain types of reciprocal dealing. Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 166 (3d Cir.1979) (citing cases). Malley-Duff proceeded at trial under a group boycott theory. In directing the verdict, the district court held that there was no evidence from which a jury could conclude that defendants had violated Sherman § 1 under either a “rule of reason” analysis or a per se violation theory. App. at 30a. A. The district court determined that no antitrust offense could be established without proof that the alleged anticompetitive conduct adversely affected consumers. App. at 27a-30a. The court relied on Products Liability" }, { "docid": "9437902", "title": "", "text": "court noted that three of the four small retailers who testified increased sales volume during the discount pricing period. The record establishes that the discount program had the effect of lowering retail prices to consumers and increasing interbrand competition. The ultimate test of legality, under the rule-of-reason analysis, is whether the particular restraint increases or impairs competition. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 82 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). We agree with the trial court that Seagram’s support of Midwest’s discount program was not manifestly anti-competitive. The trial court’s holding that there was no section one Sherman Act violation is AFFIRMED. . Midwest routinely offered certain discounts and promotions to all retailers. Midwest did not always ask Seagram to fund these programs; even when asked, Seagram sometimes declined to fund a program or provided only partial funding. . In general, Seagram directly reimbursed Midwest the cost of the discounts. During one phase of the discount program, however, Seagram simply ensured Midwest a 10‘/2% gross profit on sales of 7 Crown and V.O., which exceeded Midwest’s prior profit figures and allowed it to offer substantial discounts. . The small retailers could have incurred damages of loss of profits or competitive disadvantage because they did not receive prices as low as the favored retailers. The parties stipulated to the amount of damages for which Seagram would be liable “if Seagram’s support of any of [Midwest’s discount programs] is found by the highest court which addresses the merits of the matter to violate the antitrust laws.” . The small retailers initially charged Seagram with violating the Robinson-Patman Act, 15 U.S.C. § 13, asserting they were purchasers from Seagram within the meaning of the Act. The trial court ruled against the claim, finding that Seagram did not direct Midwest’s price determinations or participate in any sales to retailers, that none of the allegedly discriminatory sales actually transpired “in interstate commerce,” and that the promotion programs were not substantially adverse to the competitive environment. The small retailers did not appeal this" }, { "docid": "9759066", "title": "", "text": "consumers, the plaintiff claimed that the subsidies were unreasonable because it could not compete, and its competitive opportunities were, therefore, unreasonably restricted. The court held that unless there was forward vertical integration that had the effect of concentrating Dodge sales in the hands of Chrysler-owned dealers, there was no antitrust violation. The court ruled that the subsidies had a pro-competitive effect at both intrabrand and interbrand levels. This was despite the fact that the subsidies obviously reduced the profits of non-subsidized dealers, and despite the fact that plaintiff claimed some of the cars sold by its subsidized competitors were sold at prices that no private venture capital dealers could afford to meet. Similarly, in this case, plaintiffs contend that because they were unable to meet Budget’s price without losing money, there was injury to competition. As the Glauser court rejected that contention, so does this Court. Plaintiffs attempt to distinguish Glauser because that case dealt only with intrabrand competition, and this one deals with interbrand competition. The Glauser court, however, did not so limit its holding, and in fact stated that the rule of reason standard is as applicable to restraints on intrabrand competition as it is to restraints on interbrand competition. 570 F.2d at 82. Plaintiffs’ final contention is that the Supreme Court in Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967), held that there can be injury to competition when a competitor loses profits because forced to match a very low price not justified by costs. The Court noted that a jury could reasonably have concluded “that a competitor who is forced to reduce his price to a new all-time low in a market of declining prices will in time feel the financial pinch and will be a less effective competitive force.” 386 U.S. at 699-700, 87 S.Ct. at 1334. This Court first notes that Utah Pie involved a claim under Section 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a) (1976). The relevant portion of that section forbids discriminatory pricing where the effect “of such discrimination may be" }, { "docid": "5377993", "title": "", "text": "the jury could have found to underlie the DE program in the relevant market as a tool for gauging the competitive effects of that program within that market. Thus, Coleman teaches us that predatory activities which have the purpose of consolidating sales of a manufacturer’s products in its wholly or partially owned dealerships may produce anti-competitive effects violative of the Sherman Act. In recognizing that restraints on intrabrand competition are cognizable under § 1 of the Sherman Act, Coleman reasoned that forward vertical integration in the automobile distribution system could eliminate competition among dealers of the same brand within a $200-300 per vehicle price jurisdiction, which arises because non-price factors enter into consumers’ decisions to purchase automobiles. In addition, the court stated that vertical integration could adversely affect competition among dealers with regard to repair services. In an oli-gopolistic industry such as automobile manufacturing, intrabrand competition among dealers of a single brand may be highly significant to the consumer. Thus, restraints designed to achieve forward vertical integration may be found to be unreasonable. But in the absence of either a purpose to integrate vertically or such an operative effect, steps taken by a car manufacturer to enhance its market penetration against its manufacturing competitors can only enhance interbrand competition and must be deemed to be lawful. In addition, where the manufacturer’s intent is not to maintain ownership of the dealer, but to sell its interest to the private manager, the eventual effect is an increase in the number of private dealers of that automobile brand and thus an enhancement of intrabrand competition. The rejection in Coleman of Chrysler’s contention that it was entitled to a judgment n.o.v. rather than a new trial is no more than a holding that on the record in that case a jury could have found a purpose or operative effect of forward vertical integration by the elimination of independent dealers in the geographic and product market there considered. This interpretation of Coleman is consistent with the Ninth Circuit’s opinion in England v. Chrysler Corp., 493 F.2d 269 (9th Cir. 1974). That case also involved a" }, { "docid": "23579018", "title": "", "text": "effect on competition. See Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245 (5th Cir. 1975); Bushie v. Stenocord Corp., 460 F.2d 116, 119-120 (9th Cir. 1972). H&B alleges that International Harvester intended to eliminate all other distributors in the Houston market, but in fact no such plan was carried out, and four other dealers continued to compete with Plains Machinery. Cf. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72 (3d Cir. 1977) (sale of company outlet to third party shows pro-competitive intent), cert. denied,-U.S.-, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). Absent anti-competitive effect, an unlawful intent will not establish a rule of reason violation, Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918), nor will the use of unfair methods of competition. Northwest Power Products, Inc. v. Omark Industries, Inc., 576 F.2d 83 (5th Cir. 1978). Even adopting the view that International Harvester reduced intrabrand competition by putting H&B out of business, H&B has not proven the effect to be any other than de minimis. Rivalry from International Harvester’s other dealers makes this situation far different from the exclusive territorial arrangements which introduced the intrabrand competition concept into antitrust law. Though the dealers were geographically separated, their buyers were businesses who took bids, presumably diminishing the importance of location. Competition among brands appears to have been healthy, even in the specialized hydraulic excavator market, where the company store was left as the sole International Harvester representative in Houston. Unlike the record in Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1347 (3d Cir. 1975), the evidence here does not contain substantial expert testimony that the manufacturer’s dealers enjoyed a general shelter from competitive forces and all possessed discretion to raise their prices within a certain range and still make sales. Injury from Customer Restrictions H&B tried the customer restrictions aspect of this case under the per se rule of United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), which held restraints similar to those imposed by International" }, { "docid": "23579017", "title": "", "text": "Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966), applies. Conspiracies between a manufacturer and its distributors are only treated as horizontal, however, when the source of the conspiracy is a combination of the distributors. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 372-373, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967); cf. Posner, The Rule of Reason and the Economic Approach: Reflections on the Sylvania Decision, 45 U.Chi. L.Rev. 1, 17 (1977) (condemning distributor cartels). Here the asserted originator of the plan to eliminate H&B was the manufacturer, which allegedly established the company store for that purpose. Consequently, antitrust law treats the conspiracy as a vertical restraint, and those restrictions are now judged under the rule of reason. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The first step in establishing an unreasonable restraint of trade is to show anticompetitive effect, either in the intrabrand or interbrand markets. International Harvester’s treatment of H&B, viewed as a dealer substitution, had no adverse effect on competition. See Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245 (5th Cir. 1975); Bushie v. Stenocord Corp., 460 F.2d 116, 119-120 (9th Cir. 1972). H&B alleges that International Harvester intended to eliminate all other distributors in the Houston market, but in fact no such plan was carried out, and four other dealers continued to compete with Plains Machinery. Cf. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72 (3d Cir. 1977) (sale of company outlet to third party shows pro-competitive intent), cert. denied,-U.S.-, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). Absent anti-competitive effect, an unlawful intent will not establish a rule of reason violation, Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918), nor will the use of unfair methods of competition. Northwest Power Products, Inc. v. Omark Industries, Inc., 576 F.2d 83 (5th Cir. 1978). Even adopting the view that International Harvester reduced intrabrand competition by putting H&B out of business, H&B has not proven the effect to be any" }, { "docid": "7700350", "title": "", "text": "of the Sherman Act, 15 U.S.C. § 1, that every contract, combination or conspiracy that imposes an unreasonable restraint on competition is illegal. A few types of restraint — price fixing agreements among competitors, e.g. — have such a clear lack of any redeeming virtue that any restraint of that type is conclusively presumed to be unreasonable. Most restraints on competition, however, are not illegal per se; they have been analyzed, historically, under a “rule of reason” approach that permite case-by-case evaluation of their effect on competition. And where the case involves manufactured goods sold in competition with goods of other manufacturers, it is “interbrand competition,” as opposed to “intrabrand competition,” that is “the primary concern of antitrust law.” Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 724, 108 S.Ct. 1515, 1519, 99 L.Ed.2d 808 (1988), quoting Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 52, n. 19, 97 S.Ct. 2549, 2558, n. 19, 53 L.Ed.2d 568 (1977). In determining whether a particular restraint on competition is illegal per se, it is sometimes important to know whether the restraint is “horizontal” or “vertical.” “ ‘[Horizontal’ restraints [are] agreements between competitors at the same level of market structure, and ‘vertical’ restraints [are] combinations of persons at different levels of the market structure, such as manufacturers and distributors. Horizontal restraints alone have been characterized as ‘naked restraints of trade with no purpose except stifling competition,’ ... and, therefore, per se violations of the Sherman Act. On the other hand, while vertical restrictions may reduce intrabrand competition by limiting the number of sellers of a partic ular product, competing for a given group of buyers, they also promote inter-brand competition by allowing a manufacturer to achieve efficiencies in the distribution of its products....” Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir.), cert. denied, 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978), as quoted in Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805-06 (6th Cir.1988). It is also important to distinguish between price restraints and non-price restraints. Even in vertical relationships—" }, { "docid": "5377991", "title": "", "text": "(3d Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974) — considered the DE programs in automobile distribution. In Rea, a privately capitalized Ford dealer sued Ford Motor Company (the manufacturer) charging that Ford’s subsidization of its wholly-owned dealerships constituted an unreasonable restraint of trade in violation of § 1 of the Sherman Act. The plaintiff introduced expert testimony that calculated plaintiff’s damages as equal to the average subsidy per car provided to the Ford-owned dealerships times the number of cars sold by the plaintiff. In rejecting this theory, we held that the mere proof of a subsidy from the manufacturer to DE dealerships for the purpose of increasing market penetration did not establish a recoverable injury to a competing dealer under § 4 of the Clayton Act. 497 F.2d at 587-90. The Rea case did not rule out the possibility that a manufacturer could be liable for antitrust violations committed in its operation of retail outlets. Id. at 590. However, since the plaintiff there had not suffered an injury recoverable under the antitrust laws, the Rea court found it unnecessary to consider the legality of the manufacturer’s distribution system under § 1 of the Sherman Act. This court in Coleman considered the same DE program, albeit in a different geographic market, as that presented in the instant case. In that case, the plaintiff averred that Chrysler’s activities were “intended to achieve a Dodge sales structure composed primarily or entirely of several large Chrysler-owned dealerships.” Reviewing the evidence for possible jury findings, we concluded that “the jury could have concluded that Chrysler had accomplished its purposes of increasing Dodge sales and consolidating retail sales in the hands of several strong Chrysler-controlled dealerships.” Since it found trial errors, the court remanded the case for a new trial. The opinion in Coleman suggests for present purposes the parameters of lawful activity under § 1 of the Sherman Act. More specifically, although the Coleman court acknowledged that the ultimate concern of the Sherman Act is with effects, not intent, the opinion also relied, in large part, upon the purpose" }, { "docid": "5377998", "title": "", "text": "for the plaintiff in this case. Since Coleman does not control the outcome in this ease, we must confront the more expansive theory advocated vigorously by Glauser Dodge. Under that theory, whenever a manufacturer subsidizes retail dealers in order to maximize its manufacturing profits by increasing its market penetration, there is an anti-competitive injury to any dealers who compete with the subsidized dealers. Glauser Dodge’s counsel explained the full thrust of its theory when at oral argument on this appeal he explained: I think that a General Motors dealer could have complained about it. I think a Ford dealer could have complained about it. Anybody who had to compete in this market with the type of conduct that was involved here would have a complaint under the antitrust laws. It should also be noted that this theory is not consistent with the premise that the relevant product market should be restricted to Dodge dealers. To the extent that Glauser Dodge claims an injury based solely on the loss subsidy theory, its claim is clearly foreclosed by our decision in Rea v. Ford Motor Co., 497 F.2d 577, 590 (3d Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974). However, to the extent that Glauser Dodge claims an injury other than loss subsidies, we are compelled to address the question left unanswered by this court in Rea —i. e., whether a manufacturer’s subsidization of its partially or wholly owned dealerships for the purpose achieving market penetration violates § 1. In this case, the evidence was that the subsidy took the form of capital investments, absorption of start-up expenses, and favorable credit arrangements. But plaintiff’s theory of injury to competition would be equally applicable to any form of subsidy. Moreover, the effect on competition would be the same if the subsidies of which Glauser Dodge complains came from a source other than Chrysler. For example, if, instead of Chrysler’s investments, the four DE dealers had obtained more favorable lines of credit with banks and higher private venture capital investment, their ability to subject the plaintiff to intense price" }, { "docid": "5377990", "title": "", "text": "the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences. For purposes of our analysis here, the critical part of Justice Brandéis’ opinion is its discussion of the role that the defendant’s intent or purpose plays in the rule of reason test. The ultimate test of legality, of course, is whether the particular restraint promotes or impairs competition. But, as Justice Brandéis’ opinion recog nized, the intent or purpose underlying the restraint is a crucial variable in aiding the court to assess the competitive effects of the restraint. Two prior decisions of this circuit — Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338 (3d Cir. 1975), and Rea v. Ford Motor Co., 497 F.2d 577 (3d Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974) — considered the DE programs in automobile distribution. In Rea, a privately capitalized Ford dealer sued Ford Motor Company (the manufacturer) charging that Ford’s subsidization of its wholly-owned dealerships constituted an unreasonable restraint of trade in violation of § 1 of the Sherman Act. The plaintiff introduced expert testimony that calculated plaintiff’s damages as equal to the average subsidy per car provided to the Ford-owned dealerships times the number of cars sold by the plaintiff. In rejecting this theory, we held that the mere proof of a subsidy from the manufacturer to DE dealerships for the purpose of increasing market penetration did not establish a recoverable injury to a competing dealer under § 4 of the Clayton Act. 497 F.2d at 587-90. The Rea case did not rule out the possibility that a manufacturer could be liable for antitrust violations committed in its operation of retail outlets. Id. at 590. However, since the plaintiff there had not suffered an injury recoverable" }, { "docid": "2200619", "title": "", "text": "testified is approximately $200 — $300 per vehicle, arises because there are non-price factors which enter into a consumer’s decision to purchase an automobile — e. g., styling, engine performance, transmission quality, dealer convenience and servicing. Accepting Dr. Slesinger’s uncontradicted testimony, we perceive an anticompetitive effect from the elimination of the Coleman dealership. As long as there are several Dodge dealerships with different owners, they can compete within the narrow range of price jurisdiction for the sales of those persons who want Dodge vehicles. The elimination of an independent dealer diminishes that competition. Cf. Klor’s, supra. If all independent dealerships were eliminated, Chrysler could eliminate price competition within the full range of price jurisdiction. Another area of competition between automobile dealers is service. If all independent dealers were eliminated, competition in price of parts and service and in quality of service could also be eliminated. Although the only evidence in the record concerning service is testimony by Coleman that he was proud of his dealership’s service record, it is common knowledge that quality of service is vital to a successful automobile dealership. To this analysis the objection might be raised that Chrysler has the right to structure its distribution system as it wishes and the law should not prevent it from achieving a totally vertically integrated distribution structure. Although that proposition may be open to question, it is at least subject to the qualification that a lawful end achieved by unlawful means is not protected from the antitrust laws. See Connell Co. v. Plumbers & Steamfitters, 421 U.S. 616, 625, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975); Siegal v. Chicken Delight, Inc., 448 F.2d 43, 51 (9th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1172, 31 L.Ed.2d 232 (1972). While Chrysler’s ability to cease doing business with franchisees may generally be restricted only by contractual provisions, the means it chose to accomplish this end here have an anti-competitive effect. If Chrysler had simply ceased doing business with Coleman, Coleman might have been able to seek a franchise from another manufacturer and become an interbrand competitor. However, the continuation" }, { "docid": "9437901", "title": "", "text": "responding to a local price war. Such a holding would discourage competition rather than encourage it, contrary to the policy of the Sherman Act. The trial court properly tested the alleged restraints under a rule-of-reason analysis, which requires scrutiny of the intent and effect of the restrictions. Seagram supported a pricing program whereby its wholesaler discriminated in pricing Seagram’s liquors among different retailers in the Denver market. But there is no evidence that this was aimed at crippling the small retailers as competitors to the large volume liquor stores who received the lower wholesale prices. Rather, it is clear that the purpose of the discount program was to increase sales of Seagram’s products vis-avis the major competing brands. While the parties stipulated to the fact and amount of damages, it is unclear whether those damages represent profits the small retailers could have made had they received the lower prices given to the favored retailers, or whether the damages represent a decline in sales volume due to a diversion of customers to the favored retailers. The court noted that three of the four small retailers who testified increased sales volume during the discount pricing period. The record establishes that the discount program had the effect of lowering retail prices to consumers and increasing interbrand competition. The ultimate test of legality, under the rule-of-reason analysis, is whether the particular restraint increases or impairs competition. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 82 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). We agree with the trial court that Seagram’s support of Midwest’s discount program was not manifestly anti-competitive. The trial court’s holding that there was no section one Sherman Act violation is AFFIRMED. . Midwest routinely offered certain discounts and promotions to all retailers. Midwest did not always ask Seagram to fund these programs; even when asked, Seagram sometimes declined to fund a program or provided only partial funding. . In general, Seagram directly reimbursed Midwest the cost of the discounts. During one phase of the discount program, however, Seagram simply ensured Midwest" }, { "docid": "9759065", "title": "", "text": "reduction in prices, “despite increasing cost pressures on all car rental companies during this period.” They cite in conjunction with this Ben Hur Coal Co. v. Wells, 242 F.2d 481, 486, (10th Cir.), cert. denied, 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1427 (1957). That case involved a claim that the defendant sold goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor in violation of § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a (1976). No claim is made with regard to that section in this case, and no evidence of any specific intent to destroy a particular competitor or competition has been shown. Budget aptly cites Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). That case involved a claim that Chrysler violated § 1, because it subsidized its partially-owned dealers without providing similar assistance to independent dealers. Though the effect of the subsidies was to lower prices to consumers, the plaintiff claimed that the subsidies were unreasonable because it could not compete, and its competitive opportunities were, therefore, unreasonably restricted. The court held that unless there was forward vertical integration that had the effect of concentrating Dodge sales in the hands of Chrysler-owned dealers, there was no antitrust violation. The court ruled that the subsidies had a pro-competitive effect at both intrabrand and interbrand levels. This was despite the fact that the subsidies obviously reduced the profits of non-subsidized dealers, and despite the fact that plaintiff claimed some of the cars sold by its subsidized competitors were sold at prices that no private venture capital dealers could afford to meet. Similarly, in this case, plaintiffs contend that because they were unable to meet Budget’s price without losing money, there was injury to competition. As the Glauser court rejected that contention, so does this Court. Plaintiffs attempt to distinguish Glauser because that case dealt only with intrabrand competition, and this one deals with interbrand competition. The Glauser court, however, did not so limit its" }, { "docid": "22092409", "title": "", "text": "protects competition in the marketplace and not individual competitors harmed by price discrimination. Monahan’s Marine, Inc. v. Boston Whaler, Inc., 866 F.2d 525, 529 (1st Cir.1989). As a result, Feeser cannot defeat summary judgment by merely showing that Feeser and other disfavored distributors lost sales because Weis, Tartan and Sky were able to offer lower prices to end users of Serv-A-Portion portion control products as a result of the pricing advantage they received from Serv-A-Portion, and that Serv-A-Portion realized that this would occur. Seaboard Supply Co., 770 F.2d at 375; Monahan’s Marine, Inc., 866 F.2d at 525 (where favoritism in prices for certain dealers was not likely to concentrate the relevant market or drive smaller dealers out, the fact that a disfavored dealer was harmed did not render a price discrimination agreement unreasonable under § 1); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 887 (9th Cir.1982) (indicating “that the price discrimination which results where buyers seek competitive advantage from sellers encourages the aims of the Sherman Act, a respect in which the Sherman Act is inconsistent with the aims of the Robinson-Patman Act,” and affirming a grant of summary judgment against a plaintiff victimized by price discrimination where plaintiff did not show an adverse effect on competition in the relevant market), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). The Sherman Act is not offended by unfair subsidies to some competitors that result in a price war and diminished profits for some disfavored competitors, unless those subsidies lead to diminished price competition in the relevant market and higher prices for consumers. AAA Liquors, Inc. v. Joseph E. Seagram & Sons, 705 F.2d 1203, 1207-08 (10th Cir.1982) (section 1 allows a supplier to start a “price war,” and does not require suppliers to offer the same prices to customers in a given geographical area, absent a purpose to exclude disfavored buyers from the relevant market or some adverse effect on competition in that market), cert. denied, 461 U.S. 919,103 S.Ct. 1903, 77 L.Ed.2d 290 (1983); cf. Tunis Bros. Co., Inc. v. Ford Motor Co., 763 F.2d" }, { "docid": "9759064", "title": "", "text": "by the defendants was irrelevant. In reviewing a motion for a new trial, the court stated: Whether any of these acts also violated principles of tort law was not, in and of itself, determinative of an antitrust violation. Merely because a defendant’s acts may have constituted a tort does not automatically make that defendant’s acts violative of the Sherman Act. 475 F.Supp. at 457. The court also noted that plaintiffs had, in closing argument, presented their theory regarding the allegedly illegal conduct to the jury. Looking at the judge’s comments as a whole, this Court believes they do not stand for the proposition that the legality or illegality of conduct is irrelevant. It is irrelevant, however, in determining whether there was injury to competition, and tortious or illegal conduct does not “automatically, in and of itself,” establish an injury to competition, and therein a violation of the Sherman Act. Plaintiffs next claim that the unreasonableness of the restraints (and hence by implication the injury to competition) is ipso facto demonstrated because there was a drastic reduction in prices, “despite increasing cost pressures on all car rental companies during this period.” They cite in conjunction with this Ben Hur Coal Co. v. Wells, 242 F.2d 481, 486, (10th Cir.), cert. denied, 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1427 (1957). That case involved a claim that the defendant sold goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor in violation of § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a (1976). No claim is made with regard to that section in this case, and no evidence of any specific intent to destroy a particular competitor or competition has been shown. Budget aptly cites Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). That case involved a claim that Chrysler violated § 1, because it subsidized its partially-owned dealers without providing similar assistance to independent dealers. Though the effect of the subsidies was to lower prices to" }, { "docid": "5504167", "title": "", "text": "downward pressure on the retail price at which the good is sold. Dealers, by competing against each other and bidding the retail price down, will in turn exert downward pressure on the seller’s wholesale price in order to maintain their profit margins. Thus, in situations of manufacturer market power, intrabrand restrictions on distributor competition can have a substantial adverse effect on consumer welfare by eliminating an important source of competitive pressure on price. Rather than promoting nonprice competition, vertical restraints in this context may enable a manufacturer to retain monopoly profits arising from an interbrand competitive advantage. Gerhart, supra, 1981 Duke L.J. at 426-29. See Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1347 (3d Cir.1975) (where manufacturer has discretion to raise prices over interbrand competitors, elimination of intrabrand competition injurious to consumer welfare because it eliminates source of downward pressure on price). Itek misreads our statement in Daniels v. All Steel Equipment, Inc., 590 F.2d 111, 113 (5th Cir.1979) that “a reduction in intrabrand competition is not pernicious as long as there exists interbrand competition, which acts as a ‘significant check on the exploitation of intrabrand market power because of the ability of consumers to substitute a different brand of the same product.’ ” (quoting Sylvania, 433 U.S. at 53 n. 19, 97 S.Ct. 2559 n. 19). Daniels was a case “weaker than, although analogous to, the dealer termination cases. We ... look to those cases for the standard against which to test the propriety of summary judgment.” Id. at 112. We have emphasized time and again that mere termination of a dealer — even an arbitrary and unfair termination — does not constitute an antitrust violation actionable under the treble damages provisions of the Clayton Act. See, e.g., Kestenbaum v. Falstaff Brewing Corp., 575 F.2d 564, 571 (5th Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Burdett Sound, Inc. v. Altec Corp., 515 F.2d 1245, 1249 (5th Cir.1975). “The antitrust laws were designed to protect competition and not necessarily competitors.” Almeda Mall, Inc. v. Houston Lighting & Power Co., 615 F.2d 343," }, { "docid": "5377992", "title": "", "text": "under the antitrust laws, the Rea court found it unnecessary to consider the legality of the manufacturer’s distribution system under § 1 of the Sherman Act. This court in Coleman considered the same DE program, albeit in a different geographic market, as that presented in the instant case. In that case, the plaintiff averred that Chrysler’s activities were “intended to achieve a Dodge sales structure composed primarily or entirely of several large Chrysler-owned dealerships.” Reviewing the evidence for possible jury findings, we concluded that “the jury could have concluded that Chrysler had accomplished its purposes of increasing Dodge sales and consolidating retail sales in the hands of several strong Chrysler-controlled dealerships.” Since it found trial errors, the court remanded the case for a new trial. The opinion in Coleman suggests for present purposes the parameters of lawful activity under § 1 of the Sherman Act. More specifically, although the Coleman court acknowledged that the ultimate concern of the Sherman Act is with effects, not intent, the opinion also relied, in large part, upon the purpose the jury could have found to underlie the DE program in the relevant market as a tool for gauging the competitive effects of that program within that market. Thus, Coleman teaches us that predatory activities which have the purpose of consolidating sales of a manufacturer’s products in its wholly or partially owned dealerships may produce anti-competitive effects violative of the Sherman Act. In recognizing that restraints on intrabrand competition are cognizable under § 1 of the Sherman Act, Coleman reasoned that forward vertical integration in the automobile distribution system could eliminate competition among dealers of the same brand within a $200-300 per vehicle price jurisdiction, which arises because non-price factors enter into consumers’ decisions to purchase automobiles. In addition, the court stated that vertical integration could adversely affect competition among dealers with regard to repair services. In an oli-gopolistic industry such as automobile manufacturing, intrabrand competition among dealers of a single brand may be highly significant to the consumer. Thus, restraints designed to achieve forward vertical integration may be found to be unreasonable. But in" }, { "docid": "11231547", "title": "", "text": "with its taxicabs. By 1964, Checker had parted with the last of its 1,600 medallions with a resulting loss of this weapon for maintenance of its sales of taxicabs in New York. Moreover, Chrysler points to facts indicating that Checker’s president, Morris Markin, has contributed to the company’s loss of New York City sales by antagonizing that city’s taxicab fleet owners over the years through public statements in favor of higher wages for taxi drivers and against increases in cab fares. Even if it is assumed that the plan resulted in Chrysler dealers taking away sales from Checker, it is doubtful whether this is a permissible consideration, in the absence of a showing of predatory tactics, such as sales below cost or a scheme to squeeze Checker out of the market in order to destroy its competition and have it to themselves, since the purpose of the Sherman Act is to protect competition, not competitors. Ben Hur Coal Co. v. Wells, 242 F.2d 481, 486 (10th Cir.), cert. denied, 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1427 (1957). See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 220-221, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). The inevitable result of lawful price competition, particularly in an inelastic market with a fixed ceiling on the number of units that can be sold (such as New York City, which limits taxicabs to approximately 12,000), is that some sellers are going to take away business from others, unless all sell the identical product at the same price. Thus, if Chrysler were to have reduced its wholesale prices by $183, a move the legality of which would probably not be successfully challengeable, the effect on plaintif’s share of the market might well be substantially the same. Even if we assume proof of Checker’s market loss to be relevant as some evidence of injury to competition in a market where few sellers are involved, genuine issues are raised by opposing affidavits to the effect that Checker’s losses are due not to Chrysler’s conduct but to inferior design and workmanship in Checker cabs, purchasers’ difficulties" } ]

[ { "docid": "19777005", "title": "", "text": "v. Blumstein, supra,, the Court applied the strict test to residency requirements which restricted both the right to vote and the right to travel interstate, and concluded that Tennessee could not show a compelling state interest in requiring voters to have resided in the state for one year and in the county for three months prior to registration. Although these cases are suggestive, they do not decide the precise question presented here. However, a number of lower federal courts have considered this issue, and the great majority have concluded that residency requirements for eondidates must be closely scrutinized for a compelling state interest. See Bolanowski v. Raich, 330 F.Supp. 724 (E. D.Mich. 1971); Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich. 1971); Green v. McKeon, 335 F.Supp. 630 (E. D.Mich. 1971), aff’d, 468 F.2d 883 (6th Cir. 1972); McKinney v. Kamisky, 340 F.Supp. 289 (M.D.Ala. 1972); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala. 1970), aff’d without oinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971); Draper v. Phelps, 351 F.Supp. 677 (D. Okla. 1972); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H. 1973) (applying a compelling state interest test). See also, Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich. 1970). But see Walker v. Yucht, 352 F.Supp. 85 (D. Del. 1972) (injecting the compelling state interest test). This court agrees with both the reasoning and result of the majority on this issue, and applies the strict test in this case. 2. The Character of the Classification in Question — In this case the combined five and two-year residency requirement is even more restrictive than those invalidated in cases cited above (Bolanowski — three years; Mogk — three years; Green — two years; McKinney— five years). In two of the cases in which a residency requirement was held to be essential to the achievement of a compelling state interest, the lengths of time involved were one year (Hadnott) and six months (Draper). Indeed, the opinion in the latter case distinguishes its situation from the cases finding no compelling state interest based on both the length" } ]

[ { "docid": "3028611", "title": "", "text": "v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416 (1941). To transform into a conclusion the presumption that the State Legislature would have desired the durational residency requirement to stand despite the elimination of the invalid freeholder requirement, defendants point to the Charter’s predecessor enactments containing residency, but not freeholder, requirements and to the legislative comments pertaining to the inclusion of the dual qualification in the drafts of the present Charter. On the basis of the evidence thus adduced, it would appear that the invalidity of requiring freeholder status would not affect the five-year residency requirement, if constitutionally valid, notwithstanding the necessity of grammatically metamorphosing the language of the provision to reach that result. However, before this determination can be made, the constitutional permissibility of requiring five years’ residence for the office of county executive, an issue left open in my previous opinion and order, must be examined. Defendants contend that the Supreme Court’s summary affirmances of the three-judge court decisions in Sununu v. Stark, 383 F.Supp. 1287 (D.N.H.1974), aff’d mem., 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975); Chimento v. Stark, 353 F.Supp. 1211 (D.N.H.1973), aff’d mem., 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973), and Hadnott v. Ames, 320 F.Supp. 107 (M.D.Ala.1970), aff’d mem., 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971), rejecting constitutional challenges to durational residency requirements-, compel the same result in this case. Although summary affirmances of cases within the Supreme Court’s obligatory appellate jurisdiction constitute adjudications on the merits of the issues on appeal, this circuit recognizes the necessity of careful analysis of each case to determine the issues actually before the Court. Mercado v. Rockefeller, 502 F.2d 666, 671 (2d Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975). Such an analysis of Hadnott, Chimento and Sununu distinguishes those cases from that here presented. Hadnott involved a challenge to Alabama’s one-year circuit residency requirement for circuit judges, which was upheld on the basis of Alabama’s “compelling state interest in imposing a substitutional preelection residence requirement.” Hadnott v. Ames, 320 F.Supp." }, { "docid": "19777006", "title": "", "text": "Okla. 1972); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H. 1973) (applying a compelling state interest test). See also, Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich. 1970). But see Walker v. Yucht, 352 F.Supp. 85 (D. Del. 1972) (injecting the compelling state interest test). This court agrees with both the reasoning and result of the majority on this issue, and applies the strict test in this case. 2. The Character of the Classification in Question — In this case the combined five and two-year residency requirement is even more restrictive than those invalidated in cases cited above (Bolanowski — three years; Mogk — three years; Green — two years; McKinney— five years). In two of the cases in which a residency requirement was held to be essential to the achievement of a compelling state interest, the lengths of time involved were one year (Hadnott) and six months (Draper). Indeed, the opinion in the latter case distinguishes its situation from the cases finding no compelling state interest based on both the length of time and the fact that it involved candidates, for a state office (state legislature), as did Hadnott (circuit court) and Chimento (governor), while the others dealt with candidates for purely local offices. 351 F.Supp. at 686. Such distinctions, to the extent they have merit, certainly cut against defendant in this case. 3. The Governmental Interests Asserted in Support of the Classification— Defendant suggests that the residency requirements in question here promote two legitimate governmental objectives: (1) They provide the electorate with the opportunity to become better acquainted with the candidate and (2) They insure the candidate’s familiarity with the city and its needs. It cannot be denied that these are in some measure worthwhile and even laudable objectives. But it is clear that the instruments chosen by the city to effectuate these goals are far too imprecise to justify their continued use. As the Court observed in Dunn, supra, 405 U.S. at 343, 92 S.Ct. at 1003: “It is not sufficient for the State to show that durational residence requirements further a very substantial" }, { "docid": "8536749", "title": "", "text": "665 (1965) ; Hayes v. Gill, 473 P.2d 872 (Hawaii 1970) ; DeHond v. Nyquist, 65 Misc.2d 526, 318 N.Y.S.2d 650 (S.Ct. Albany Cty. 1971) ; and State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo. 1972). . The Office of State Planning has determined the 1972 resident population of New Hampshire to be 778,566 as of June 30, 1972. The land area of New Hampshire is 9,033 square miles. . Part Second, Article 29, of the New Hampshire Constitution provides for a seven year durational residency requirement as a condition of eligibility for the office of State Senator. . Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), aff’d without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971) (Office of State Circuit Judge) ; Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971) (Mayor) ; Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971) (all elective/appointive city offices) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) (City Charter Revision Commission) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) (County Commissioner) ; Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972) (Mayor) ; and Zeilenga v. Nelson, 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578 (1971) (Office of County Supervisor). See also Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich.1970) (involving property ownership requirement for the office of city clerk). . The debates in the Constitutional Convention of 1787 indicate that one of the primary reasons why durational residency requirements were inserted in the Federal Constitution was to insure that those running for the designated office had sufficient opportunity to gain the necessary knowledge about the problems which they might be called upon to resolve. See Notes of Debates In The Federal Convention of 1787 Reported by James Madison, W. W. Norton and Company, pp. 406-407, 1966. . Chapter II, Section I, Article II, of the 1780 Constitution provides as a condition of eligibility for the office of Governor that “ . . .at the time of his election, he shall have been an inhabitant of this Commonwealth for seven years next preceding . ” . Source: The" }, { "docid": "3028612", "title": "", "text": "958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975); Chimento v. Stark, 353 F.Supp. 1211 (D.N.H.1973), aff’d mem., 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973), and Hadnott v. Ames, 320 F.Supp. 107 (M.D.Ala.1970), aff’d mem., 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971), rejecting constitutional challenges to durational residency requirements-, compel the same result in this case. Although summary affirmances of cases within the Supreme Court’s obligatory appellate jurisdiction constitute adjudications on the merits of the issues on appeal, this circuit recognizes the necessity of careful analysis of each case to determine the issues actually before the Court. Mercado v. Rockefeller, 502 F.2d 666, 671 (2d Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975). Such an analysis of Hadnott, Chimento and Sununu distinguishes those cases from that here presented. Hadnott involved a challenge to Alabama’s one-year circuit residency requirement for circuit judges, which was upheld on the basis of Alabama’s “compelling state interest in imposing a substitutional preelection residence requirement.” Hadnott v. Ames, 320 F.Supp. at 119, 124. Since the purported candidate had never resided in the circuit, however, the court expressly left untouched the question of “whether the period of one year is too long, thus unconstitutionally overreaching the implementation of the state’s compelling interest.” Id. at 119. Chimento and -Sununu sustained New Hampshire’s gubernatorial and senatorial seven-year state residency requirements in the face of attacks mounted on the grounds here asserted, as justified by the state’s compelling interests in insuring familiarity between the candidate and his constituency and preventing political carpetbagging. In upholding the length of these requirements as permissible infringements on the right to participate in the electoral process on equal protection grounds, however, the Chimento and Sununu courts overwhelmingly stressed that the seven-year mandates were contained in the New Hampshire Constitution as originally framed, and thus were appropriate for elimination or change only by the voters through the constitutional amending process. Indeed, the Sununu court emphasized that a proposed reduction of the senatorial requirement from seven to four years had been considered and rejected by the" }, { "docid": "8536746", "title": "", "text": "ripple. We hold that the relationship between the seven year residency requirement and the right to travel is far too attenuated to constitute any infringement of that right. Petition dismissed. Judgment for the defendant. So ordered. . Part Second, Article 42, of the New Hampshire Constitution reads in pertinent part as follows: . And no person shall be eligible to this office [Governor], unless, at the time of his election, he shall have been an inhabitant of this state for seven years next preceding .... . Mr. Chimento received 943 Democratic and 2 Republican votes in the September 12, 1972 primary. There were a total of 47,783 ballots cast for the office of Governor in the Democratic Primary and 93,910 ballots cast for the office of Governor in the Republican Primary. These results are on file with the Secretary of State of New Hampshire. . See Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich.1970) ; Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), aff’d without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971); Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971) ; Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) ; Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972) ; Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl.1972) ; Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965) ; Hayes v. Gill, 473 P.2d 872 (Hawaii, 1970) ; DeHond v. Nyquist, 65 Misc.2d 526, 318 N.Y.S.2d 650 (S.Ct., Albany Cty.1971) ; Zeilenga v. Nelson, 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578 (Calif.1971) ; and State ex. rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo.1972). . E. g., a classification based on race, religion, national origin, or personal wealth. . The right to participate in representative government (i. e., the right to vote) does seem to some degree more fundamental than the right to represent others in that process (i. e., the right to serve in public office). Perhaps this is so because running for office is self-limiting (i." }, { "docid": "8536747", "title": "", "text": "L.Ed.2d 318 (1971); Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971) ; Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) ; Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972) ; Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl.1972) ; Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965) ; Hayes v. Gill, 473 P.2d 872 (Hawaii, 1970) ; DeHond v. Nyquist, 65 Misc.2d 526, 318 N.Y.S.2d 650 (S.Ct., Albany Cty.1971) ; Zeilenga v. Nelson, 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578 (Calif.1971) ; and State ex. rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo.1972). . E. g., a classification based on race, religion, national origin, or personal wealth. . The right to participate in representative government (i. e., the right to vote) does seem to some degree more fundamental than the right to represent others in that process (i. e., the right to serve in public office). Perhaps this is so because running for office is self-limiting (i. e., only a comparatively few want to run), whereas voting is a right in which all should participate. . See pages 11-15 of the piaintiff’s brief for a statistical analysis of the number of people who have not lived in New Hampshire for seven years. . For cases that dealt with the issue of durational residency requirements for public office and applied the “compelling interest” test, see Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich.1970) ; Hadnott v. Amos, 320 F. Supp. 107 (M.D.Ala.1970), aff’d without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971) ; Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971) ; Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) ; Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972) ; Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl.1972) ; and Zeilenga v. Nelson, 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578 (1971). Contra see Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d" }, { "docid": "1225680", "title": "", "text": "accept the strict scrutiny test rather routinely, based on the momentum of precedent, without seriously investigating the assumptions which led other courts to choose strict scrutiny. Still, since the relevant decisions in this Circuit there have been two more authoritative decisions which may indirectly imply that the rational basis test is to be used here: these are the Supreme Court’s summary decisions in Sununu v. Stark, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975) aff'd mem. 383 F.Supp. 1287, and Chimento v. Stark, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973) aff'd mem. 353 F.Supp. 1211. Sununu is particularly telling. In that case the Supreme Court approved a judgment upholding a seven year state residency requirement for candidates to the New Hampshire state senate. Of course one must be cautious about speculating as to the Supreme Court’s reasoning in summary affirmances, but one is forced to wonder how the bona fide strict scrutiny test could be applied to uphold the overbroad seven year residency requirement for New Hampshire state senate candidates. . See pages 1322-1323, supra. . The Court of Appeals said, “In light of the alternative ground for affirmance set forth below, we do not pass on the question of whether the impact of Plymouth’s charter provision on the exercise of the franchise is sufficient to satisfy the criteria of Bullock to trigger application of the more stringent standard.” 468 F.2d at 884. . Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), is also occasionally cited in this regard. The issue in Dunn was the constitutionality of durational residency requirements for voting. The Supreme Court declared that where the “challenged statute grants the right to vote to some citizens and denies the franchise to others,” strict scrutiny must be applied. Id at 337, 92 S.Ct. at 1000. Some lower courts have erroneously relied on sweeping dicta in Dunn and automatically assumed that strict scrutiny applies to durational requirements for candidates as well. “In sum, durational residency laws must be measured by a strict equal protection test.” Id. at 342, 92" }, { "docid": "5613243", "title": "", "text": "(M.D.Ala.1970), aff’d, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972); see Chimento v. Stark, 353 F.Supp. 1211, 1215-16 (D.N.H.1973), aff’d, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973); Draper v. Phelps, 351 F.Supp. 677, 683-84 (W.D.Okl.1972). The case presently before us, even more so than the previously cited cases, presents a situation where compelling interests justify the imposition of a one-year durational residency requirement upon candidates. The extremely localized problems of the Tribes intensify the need for exposure of prospective candidates to the constituency for a substantial period of time as a prerequisite to Tribal Council eligibility. The Tribes have a great interest in promoting serious and knowledgeable candidates for Tribal Council positions, and in providing the electorate with the opportunity to observe and acquire first-hand knowledge of prospective candidates. These goals can only be achieved through the imposition of substantial durational residency requirements. We therefore agree with the holding reached by the district judge below that “the one-year requirement is justified for an office as important to the Tribes as is that of tribal councilman.” (C.T. 206). This requirement does not extend beyond its justification, however. Nothing we have said is intended to suggest that we would look with approval upon an interpretation of the requirement that makes inconsequential absences from the reservation, such as overnight or weekend absences, a disqualification for candidacy. Such an interpretation is not before us. Nor have we been concerned in this case with discriminatory applications of the requirement. The plaintiffs have made no such allegations. We, also, emphasize that plaintiffs are not barred from becoming eligible candidates in the future. Their candidacy is only delayed — not barred. A period is allotted for them to become familiar,— and for the electorate to be assured that the candidates are well acquainted — with the unique problems encountered in promoting Indian cultural identity and administering their own unique tribal government. We affirm the district court’s Opinion and Order denying plaintiffs all relief on the merits. Affirmed. . Interrogatory No. 9" }, { "docid": "3296885", "title": "", "text": "1211 (D.N.H.), aff’d without opinion, 1973, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39; Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich.1970); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala. 1970), aff’d without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971); Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971); Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971); Mogk v. City of Detroit, 335 F.Supp. 698 (E.D. Mich.1971); McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972); Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972); Draper v. Phelps, 351 F.Supp. 677 (W.D. Okl.1972). We conclude that section 7 must withstand strict scrutiny. When subjected to strict scrutiny, a statute or legislative scheme must be shown necessary to promote a compelling state interest. Shapiro v. Thompson, supra; Bullock v. Carter, supra. Thus phrased, the constitutional question may sound like a mathematical formula. But legal “tests” do not have the precision of mathematical formulas. The key words [necessary to promote a compelling governmental interest] emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes. Dunn v. Blumstein, 1972, 405 U.S. 330, 338, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274. The state is clearly vested with the power, derived from the Tenth Amendment, to prescribe reasonable citizenship, age, and residency requirements on the availability of the ballot, Kramer v. Union Free School District, 1969, 395 U.S. 621, 625, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583; cf. Carrington v. Rash, 1965, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, and the power to prescribe reasonable qualifications extends to candidates for office. See Storer v. Brown, supra; American Party v. White, supra; Bullock v. Carter, supra; Jenness v. Fortson, supra. The argued justification for section 7 is the state’s interest in a ballot composed of knowledgeable and qualified candidates for the increasingly complex job of school board member. However, voter registration for a period of three years is, at best, a crude index of the capabilities of a potential candidate. The background, experience, and political" }, { "docid": "5613238", "title": "", "text": "have considered this issue have applied the compelling governmental interest test. This conclusion applies both to those cases which have held that durational residency requirements regarding candidates to be constitutional, e. g., Chimento v. Stark, 353 F.Supp. 1211 (D.N.H.1973), aff’d, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973); Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl.1972); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), aff’d, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972); and those courts which have found the particular durational residency law to be unconstitutional, Alexander v. Kammer, 363 F.Supp. 324 (E.D.Mich.1973); McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972); Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971). The Sixth Circuit, in testing the constitutionality of a two-year residency requirement for candidates running for city office (Plymouth, Michigan), declared that the durational residency classification “requires that the requirement be strictly scrutinized . . . .” Green v. McKeon, 468 F.2d 883, 884 (6th Cir. 1972). Similarly, the First Circuit has held that any legislative classification that significantly burdens the' right to run for office, “must be subjected to strict equal protection review.” Mancuso v. Taft, 476 F.2d 187, 196 (1st Cir. 1973). We agree with the rationale of the above cases, applying the compelling state interest test. Here, we assume without deciding that the plaintiffs’ rights of travel and running for office are protected by the provisions of 25 U.S.C. § 1302(8). Because the Tribes’ election and voting procedures are analogous to Anglo-Saxon culture, it is clear that in this case the equal protection clause of the fourteenth amendment should be embraced by the Indian Civil Rights Act. See White Eagle v. One Feather, 478 F.2d 1311, 1314 (8th Cir. 1973), and other relevant cases cited in discussion supra regarding jurisdiction. It is settled law that absent a compelling state interest, governmental action may not burden the exercise of a fundamental constitutional right. Dunn v. Blum-stein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d" }, { "docid": "8536748", "title": "", "text": "e., only a comparatively few want to run), whereas voting is a right in which all should participate. . See pages 11-15 of the piaintiff’s brief for a statistical analysis of the number of people who have not lived in New Hampshire for seven years. . For cases that dealt with the issue of durational residency requirements for public office and applied the “compelling interest” test, see Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich.1970) ; Hadnott v. Amos, 320 F. Supp. 107 (M.D.Ala.1970), aff’d without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971) ; Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971) ; Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) ; Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972) ; Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl.1972) ; and Zeilenga v. Nelson, 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578 (1971). Contra see Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965) ; Hayes v. Gill, 473 P.2d 872 (Hawaii 1970) ; DeHond v. Nyquist, 65 Misc.2d 526, 318 N.Y.S.2d 650 (S.Ct. Albany Cty. 1971) ; and State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo. 1972). . The Office of State Planning has determined the 1972 resident population of New Hampshire to be 778,566 as of June 30, 1972. The land area of New Hampshire is 9,033 square miles. . Part Second, Article 29, of the New Hampshire Constitution provides for a seven year durational residency requirement as a condition of eligibility for the office of State Senator. . Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), aff’d without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971) (Office of State Circuit Judge) ; Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971) (Mayor) ; Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971) (all elective/appointive city offices) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) (City Charter Revision Commission) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) (County Commissioner) ; Wellford v. Battaglia," }, { "docid": "481064", "title": "", "text": "of the legislature.” The President of the Senate has all the powers and authorities of the Governor whenever the Governor’s ehair is vacant. The Senate lias the sole power to try impeachments. The Senate reviews and has veto power over legislation that lias been passed by the House. The Senate can also initiate legislation for the House’s consideration. . The result of the primary election for Senate District 22 was as follows: Democratic Nominee, Delbert Downing, received 1519 Democratic votes and 192 Republican write-in votes ; Mr. Sununu received 574 Republican write-in votes. . Although durational residency requirements for local offices have been held unconstitutional, no court has held unconstitutional a residency requirement for a statewide elective office. See Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl.1972); Walker v. Yucht, 352 F.Supp. 85 (D.C.Del.1972); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), aff’d. mem., 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971); State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo.1972); Hayes v. Gill, 52 Hawaii 251, 473 P.2d 872 (1970). . At oral argument, the State retracted from the position that it had taken in Chimento and agreed that the appropriate standard of review is the “compelling state interest” test. . Mr. Sununu has been a resident of New Hampshire for only four years and seven months; a five-year residency requirement would also make him ineligible. . Brief for Defendant at 17. . Id. at 17. LEVIN H. CAMPBELL, Circuit Judge, with whom GIGNOUX, District Judge, joins (concurring). Although I concur in the result, it seems to me that the compelling state interest standard has been improperly invoked and incorrectly applied. See Chimento v. Stark, 353 F.Supp. 1211, 1218 (D.N.H.1973) (concurring opinion). Were the compelling interest test the appropriate measure of the state’s residency requirement the outcome here would surely have to be in plaintiffs’ favor. Chief Justice Burger has described that standard as “seemingly insurmountable” and noted that the Supreme Court has yet to find its stringent requirements satisfied. Dunn v. Blumstein, 405 U.S. 330, 363-364, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Even if one assumes" }, { "docid": "481055", "title": "", "text": "in the general election. RULINGS OF LAW Plaintiff Sununu contends that the seven-year durational residency requirement violates both the Equal Pro tection Clause of the Fourteenth Amendment and his fundamental right to interstate travel. Whenever it is alleged that a state has violated either the Equal Protection Clause or infringed upon a “fundamental right,” the court must determine the appropriate standard of review. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). The court inquires into three areas: “the character of the classification in question ; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.” Dunn, supra, 405 U.S. at 335, 92 S.Ct. at 999. I do not write on a clean slate. In Chimento v. Stark, 353 F.Supp. 1211 (D.N.H.), aff’d. mem., 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973), the issue presented was whether the constitutionally mandated seven-year durational residency requirement for Governor violated either the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, or the fundamental right to interstate travel. In holding that the residency requirement did not violate any portion of the United States Constitution, this court adopted the “compelling state interest” test. The interests and rights of the present plaintiffs are similar to those involved in Chimento. I therefore conclude that the proper standard of review is the “compelling state interest” test. As in Chimento, I hold that there is a compelling state interest in prescribing durational residency requirements for those candidates who seek state elective office. Counsel for Sununu admitted during oral argument that durational residency requirements are not “per se” unconstitutional. The State has the power, reserved to it by the Tenth Amendment to the United States Constitution and the compelling interest, to impose eligibility requirements upon those who seek state-elective office. The three principal state interests served by the durational residency requirement are: first, to ensure that the candidate is familiar with his constituency; second, to ensure that the voters have been thoroughly exposed to the candidate ; and third, to prevent political carpetbagging. See Chimento" }, { "docid": "1225635", "title": "", "text": "cl. 2. The Constitution imposes similar requirements on senators (nine years) and Presidents (fourteen years). Id., Art. I, § 3, cl. 3 and Art. II, § 1. Thus, durational requirements have been historically recognized as legitimate governmental concerns. In addition, the Constitution grants to state legislatures the power to regulate elections and determine candidate qualifications. U.S.Const. Art. I, § 2,4; Art. II, § 1. Almost every state has passed laws establishing durational residency requirements for various state and local public offices. “Developments in the Law — Elections”, 88 Harv.L.Rev. 1111, 1217 (1975). The universal prevalence of such requirements casts some doubt on plaintiff’s argument. Moreover, the Supreme Court has directly held that some durational residency requirements for candidates are constitutional. In Sununu v. Stark, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975) and Chimento v. Stark, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973), the Supreme Court affirmed lower court judgments upholding New Hampshire’s seven year durational residency requirement for state senatorial and gubernatorial candidates against equal protection challenges. 383 F.Supp. 1287 (D.N.H.) and 353 F.Supp. 1211 (D.N.H.). Thus the Supreme Court, in decisions subsequent to the cases in this Circuit relied on by plaintiff, directly ruled that a seven year candidate residency law was constitutional. Finally in the analogous area of durational residency requirements for voters, the Supreme Court has expressly upheld some residency periods in the face of equal protection attacks. Burns v. Fortson, 410 U.S. 686, 93 S.Ct. 1209, 35 L.Ed.2d 633 (1973) and Marston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973) (50 days held constitutional). See also, Dunn v. Blumstein, 405 U.S. 330, 347, 92 S.Ct. 995, 1005, 31 L.Ed.2d 274 (1972) (30 days). The inescapable conclusion is that some durational residency requirements for candidates are constitutionally acceptable. Woodward v. City of Deerfield Beach, 538 F.2d 1081, 1084 (5th Cir. 1976). B. The Court Decisions Regarding One Year Residency Requirements The second step in defendants’ argument focuses on the outcome of cases directly on point with the one at bar, that is, the cases considering the constitutionality" }, { "docid": "1225671", "title": "", "text": "key words emphasize a matter of degree ...” Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972). In fact, several courts have used strict scrutiny in concluding that durational residency requirements for candidates were valid. The Ninth Circuit used the compelling state interest test to uphold a one year residency requirement for candidates for the Indian Tribal council. Howlett v. Salish and Kootenai Tribes, 529 F.2d 233 (9th Cir. 1976). The Colorado Supreme Court used strict scrutiny in upholding a one year requirement for municipal candidates, while striking a three year requirement. Cowan v. City of Aspen, 181 Colo. 343, 509 P.2d 1269 (1973). Accord, Draper v. Phelps, 351 F.Supp. 677 (Okl.1972) (six months for state representatives); Dunn v. Blumstein, 405 U.S. 330, 347, 92 S.Ct. 995, 1005, 31 L.Ed.2d 274 (1972) (upholding thirty-day residency period for voter,s on a strict scrutiny analysis). It is true that the cases for this Circuit have applied strict scrutiny in an extremely exacting manner, and the rhetoric of these cases has sometimes hinted that no durational residency requirement would be permissible. These cases are distinguishable, in the first place, because they dealt with residency periods greater than one year. Moreover, the logic and language of these cases cannot be squared with the Supreme Court’s ruling that a seven year requirement for state senators is constitutional. Sununu v. Stark, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975) aff’g mem. 383 F.Supp. 1287 (D.N.H.1974). To be sure, the Sixth Circuit in Green v. McKeon, as well as the other courts in this Circuit, did not have the benefit of this Supreme Court decision. It is now apparent that a seven year residency requirement is constitutional under certain circumstances, whatever the standard of review. Of course there are differences between the office of Birmingham city commissioner and that of New Hampshire state senator: But the Court cannot believe that these differences allow New Hampshire to require seven years residency, but preclude Birmingham from requiring one year. Thus on the authority of Sununu v. Stark this Court would have" }, { "docid": "5613237", "title": "", "text": "it is reasonably related to a legitimate tribal interest. We conclude that the district judge was correct in subjecting the residency requirement to the compelling interest test. The recent Supreme Court decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), dealt with the constitutionality of durational residence requirements as prerequisites for registration to vote: [Djurational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are “ necessary to promote a compelling governmental interest.” ****** It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. 405 U.S. at 342-43, 92 S.Ct. at 1003. Although we realize that “the right to vote and. the right to seek public office are not synonymous,” Sununu v. Stark, 383 F.Supp. 1287, 1291 (D.N.H.1974), we are also aware that the vast majority of courts which have considered this issue have applied the compelling governmental interest test. This conclusion applies both to those cases which have held that durational residency requirements regarding candidates to be constitutional, e. g., Chimento v. Stark, 353 F.Supp. 1211 (D.N.H.1973), aff’d, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973); Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl.1972); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), aff’d, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972); and those courts which have found the particular durational residency law to be unconstitutional, Alexander v. Kammer, 363 F.Supp. 324 (E.D.Mich.1973); McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972); Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971). The Sixth Circuit, in testing the constitutionality of a two-year residency requirement for candidates running for city office (Plymouth, Michigan), declared that the durational residency classification “requires that the requirement be strictly scrutinized . . . .” Green v. McKeon, 468 F.2d 883, 884 (6th Cir. 1972). Similarly, the First Circuit has held that" }, { "docid": "15934934", "title": "", "text": "plaintiff was clearly “live.” . Bullock v. Carter, 405 U.S. 134, 142, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). . See, e. g., Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) ; Bullock v. Carter, 405 U.S. 134, 142, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) ; Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (per curiam) ; Developments in the Law-— Equal Protection, 82 Harv.L.Rev. 1065 (1969). . See, e. g., Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) ; McDonald v. Board of Election Comm’rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969) ; Rapid Transit Corp. v. City of New York, 303 U.S. 573, 578, 58 S.Ct. 721, 82 L.Ed. 1024 (1938). . E. g., Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). . See Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (dictum) ; cf. Shapiro v. Thompson, 394 U.S. 618, 658-659, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1960) (Harlan, J. dissenting) . . E. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) ; Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“carefully and meticulously” scrutinize). . We are, of course, aware that this is not the first case in which constitutional attack has been leveled upon durational residency requirements for political candidates. See, e. g. Green v. McKeon, 468 F.2d 883 (6th Cir., filed Oct. 12, 1972) (unconstitutional) affg. 335 F.Supp. 630 (E.D.Mich.1971) ; Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl., filed Sept. 6, 1972) (3-judge court) (constitutional) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) (same) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich. 1971) (3-judge court) (same) ; Hadnott v. Amos, 320 F.Supp. 107, 119-123 (N.D.Ala.1970) (3-judge court) (unconstitutional), affd without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971). In addition, Judge Stapleton, in Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.," }, { "docid": "5613242", "title": "", "text": "in this case. The three counties are rural and sparsely populated. There is no television station in the circuit, one radio station, no daily newspaper. Necessarily communication between candidate and voter is personal and personalized. Information which under other circumstances might be communicated by more formal means necessarily is communicated informally by personal acquaintance and observation, by word of mouth from neighbor to neighbor. The voters acquire general community knowledge about the candidate, while at the same time the candidate builds a community reputation concerning many of the traits to which we above referred. These are processes which cannot operate overnight. But they represent appropriate functioning of democracy. [The candidate] must have the special capacities that will enable him to perform the office he seeks, and his possession or lack of possession of those capacities need to be exposed to those who will make the choice. Nonexpo-sure of . candidates with voters choosing from lack of knowledge, is a much more serious strain on the sinews of democracy. Hadnott v. Amos, 320 F.Supp. 107, 120-22 (M.D.Ala.1970), aff’d, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971), aff’d, 405 U.S. 1035, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972); see Chimento v. Stark, 353 F.Supp. 1211, 1215-16 (D.N.H.1973), aff’d, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973); Draper v. Phelps, 351 F.Supp. 677, 683-84 (W.D.Okl.1972). The case presently before us, even more so than the previously cited cases, presents a situation where compelling interests justify the imposition of a one-year durational residency requirement upon candidates. The extremely localized problems of the Tribes intensify the need for exposure of prospective candidates to the constituency for a substantial period of time as a prerequisite to Tribal Council eligibility. The Tribes have a great interest in promoting serious and knowledgeable candidates for Tribal Council positions, and in providing the electorate with the opportunity to observe and acquire first-hand knowledge of prospective candidates. These goals can only be achieved through the imposition of substantial durational residency requirements. We therefore agree with the holding reached by the district judge below that “the one-year requirement" }, { "docid": "15934935", "title": "", "text": "v. Thompson, 394 U.S. 618, 658-659, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1960) (Harlan, J. dissenting) . . E. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) ; Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“carefully and meticulously” scrutinize). . We are, of course, aware that this is not the first case in which constitutional attack has been leveled upon durational residency requirements for political candidates. See, e. g. Green v. McKeon, 468 F.2d 883 (6th Cir., filed Oct. 12, 1972) (unconstitutional) affg. 335 F.Supp. 630 (E.D.Mich.1971) ; Draper v. Phelps, 351 F.Supp. 677 (W.D.Okl., filed Sept. 6, 1972) (3-judge court) (constitutional) ; McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972) (same) ; Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich. 1971) (3-judge court) (same) ; Hadnott v. Amos, 320 F.Supp. 107, 119-123 (N.D.Ala.1970) (3-judge court) (unconstitutional), affd without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971). In addition, Judge Stapleton, in Wellford v. Battaglia, 343 F.Supp. 143 (D.Del., filed May 23, 1972) held that a five year durational residency requirement, imposed upon would-be candidates for the office of Mayor of Wilmington by that city’s Charter, violated the Constitution. Although we are naturally impressed by Judge Stapleton’s well-reasoned and articulate approach, this Court is not persuaded that the Wellford case forecloses our examination of the thorny constitutional issues presented here. . For the analytical framework upon which much of the case examination in Parts A. and B., infra, is based, see Comment, The Constitutionality of Qualifying Fees for Political Candidates, 120 U.Pa.L. Rev. 109 (1971) [hereinafter cited as Comment]. . 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). . Id. at 362-363, 90 S.Ct. at 541 (footnotes omitted). . Id. at 362, 90 S.Ct. 532. . Id. at 363-364, 90 S.Ct. at 542. . Id. at 363, 90 S.Ct. at 542. But cf. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 684-685, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (Harlan, J., dissenting). . See Comment, supra note 15, at 116. ." }, { "docid": "3296884", "title": "", "text": "were excluded from the ballot. Other than participation in the Democratic or Republican primary, the independent candidates in Williams were provided no alternative route to a place on the ballot in the general election. The petition alternative in Jenness, which the Court found reasonable in light of the strong state interest in a manageable ballot, allowed independent candidates demonstrating at least some political support a place on the ballot. The barrier erected by section 7 falls closer to Williams than to Jenness. It is absolute in its operation. No exception is made for expertise, fa miliarity, or the extent of political support in fact possessed by a potential candidate. Not unlike the exorbitant filing fees in Bullock v. Carter, section 7 denies access to what must be assumed is a significant number of potential school board candidates, and on that basis the statute’s impact on voters is substantial. Indeed, when examining less restrictive, but somewhat analogous durational requirements, a majority of courts have employed a standard of strict scrutiny. See Chimento v. Stark, 353 F.Supp. 1211 (D.N.H.), aff’d without opinion, 1973, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39; Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (E.D.Mich.1970); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala. 1970), aff’d without opinion, 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971); Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971); Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971); Mogk v. City of Detroit, 335 F.Supp. 698 (E.D. Mich.1971); McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972); Wellford v. Battaglia, 343 F.Supp. 143 (D.Del.1972); Draper v. Phelps, 351 F.Supp. 677 (W.D. Okl.1972). We conclude that section 7 must withstand strict scrutiny. When subjected to strict scrutiny, a statute or legislative scheme must be shown necessary to promote a compelling state interest. Shapiro v. Thompson, supra; Bullock v. Carter, supra. Thus phrased, the constitutional question may sound like a mathematical formula. But legal “tests” do not have the precision of mathematical formulas. The key words [necessary to promote a compelling governmental interest] emphasize a matter of degree: that a heavy burden of justification is on" } ]

[ { "docid": "23016337", "title": "", "text": "the prior decision to deny Sweatman’s claim. Sullivan reviewed the file and upheld the original determination. Consequently, MetLife informed Sweatman by letter of its decision to uphold the earlier denial. Sweatman filed suit under ERISA, 29 U.S.C. § 1132(a)(1)(B) seeking district court review of MetLife’s disability determination. After a bench trial submitted on pleadings, depositions, and the administrative record, the court held that MetLife did not abuse its discretion when it denied Sweatman’s claim, and the court entered judgment against Sweatman. Sweatman now appeals, alleging: (1) that the district court erroneously applied an abuse of discretion standard of review to MetLife’s determination, and (2) that even if “abuse of discretion” was the proper standard, MetLife abused its discretion in determining that Sweatman was not “totally disabled.” II A Sweatman argues that the district court erroneously applied an abuse of discretion standard of review to MetLife’s denial of her claim. In the Fifth Circuit, the proper standard for district court review of a plan administrator’s benefit determination is governed by the Supreme Court’s decision in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), and our decision in Pierre v. Connecticut General Life Insurance Co., 932 F.2d 1552 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 453, 116 L.Ed.2d 470 (1991). In Bruch, the Court held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” 489 U.S. at 115, 109 S.Ct. at 956-57. In Pierre, we held “that for factual determinations under ERISA plans, the abuse of discretion standard of review is the appropriate standard.” 932 F.2d at 1562. Consequently, district courts in the Fifth Circuit review under an abuse of discretion standard a plan administrator’s factual determinations and determinations made pursuant to a plan that gives the administrator discretionary authority to determine eligibility or interpret the terms of the plan. Sweatman concedes that MetLife’s determination that she" } ]

[ { "docid": "23164239", "title": "", "text": "district court held that the Plan Administrator abused its discretion and, consequentially, awarded Holland disability retirement benefits and attorney’s fees. Id. at *7. The Plan appealed, and we have jurisdiction under 28 U.S.C. § 1291. II. DISCUSSION The Plan appeals the district court’s judgment. We review de novo the district court’s judgment awarding disability retirement benefits, although we will set aside the district court’s factual findings only if clearly erroneous. Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir.2008); Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir.1994). Under de novo review, we apply the same standard to the Plan Administrator’s decision as did the district court. In this case, because the Plan undisputedly gives the Plan Administrator the discretionary authority to construe the Plan’s terms and to render benefit decisions, we reverse the Plan Administrator’s denial of benefits to Holland only if it abused its discretion. Stone v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257-58, 2009 WL 1479405, at *4 (5th Cir.2009); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). A plan administrator abuses its discretion where the decision is not “ ‘based on evidence, even if disputable, that clearly supports the basis for its denial.’ ” Lain v. UNUM Life Ins. Co., 279 F.3d 337, 342 (5th Cir.2002) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir.1999) (en banc)). We reach a finding of abuse of discretion only where “the plan administrator acted arbitrarily or capriciously.” Meditrust Fin. Servs. Corp. v. Sterling Chems., hie., 168 F.3d 211, 214 (5th Cir.1999). “A decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence.” Id. at 215 (quotation marks omitted). Our “review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall somewhere on a continuum of reasonableness — even if on the low end.” Corry v. Liberty Life Assurance Co. of Boston," }, { "docid": "21950461", "title": "", "text": "in pertinent part, as follows: “A civil action may be brought — (1) by a participant or beneficiary — (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” Standard of Review Under ERISA Where a “benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits of to construe the terms of the plan,” this court is limited to reviewing its decisions to limit or deny benefits under an abuse of discretion standard, rather than de novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-15, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); see also Albert v. Life Ins. Co. of North America, 156 Fed.Appx. 649, 651 (5th Cir.2005) (citations omitted); Ellis v. Liberty Life Assurance Co., 394 F.3d 262, 269 (5th Cir.2004); cert. denied, 545 U.S. 1128, 125 S.Ct. 2941, 162 L.Ed.2d 867 (2005); Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 295 (5th Cir.1999). The Plan and Policy give Hartford “full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy,” and therefore this court must apply an abuse of discretion standard in reviewing Hartford’s decision to limit Ms. Dowdy’s long-term disability benefits to the mental illness provision of the Policy. This standard of review applies to an initial denial of benefits as well as to a termination of benefits after an initial determination of eligibility. Matney v. Hartford Life & Accident Ins. Co., 172 Fed.Appx. 571, 572, 2006 WL 775129 (5th Cir.2006) (citing Ellis, 394 F.3d at 274). Under the abuse of discretion standard, the court must uphold the administrator’s decision if it is supported by substantial evidence and is not arbitrary and capricious. Ellis, 394 F.3d at 273; Matney, 172 Fed.Appx. at 572; Albert, 156 Fed.Appx. at 651 (citing Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir.1999)). “Substantial evidence” has been defined as" }, { "docid": "23362356", "title": "", "text": "v. Sabre, Inc., 473 F.3d 604, 609-10 (5th Cir.2006). By contrast, the administrator’s construction of plan terms is typically reviewed de novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). But where, as here, a plan expressly confers discretion on the plan administrator to construe the plan’s terms, the administrator’s construction is reviewed for abuse of discretion. Chacho, 473 F.3d at 610 (citing Firestone, 489 U.S. at 115, 109 S.Ct. 948; Gosselinh v. AT&T, Inc. 272 F.3d 722, 726 (5th Cir.2001); Vega v. Natl Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir.1999) (en banc)). Where an administrator’s decision is “tainted by a conflict of interest,” courts implement a sliding scale standard of review. MacLachlan, 350 F.3d at 478. The standard of review does not change, ie., it remains abuse of discretion; the existence of a conflict of interest is simply a factor to be considered in determining whether the administrator abused its discretion. Vega, 188 F.3d at 296-97. Less deference is given to the Administrator, in proportion to the evidence of conflict. Id. Where “a minimal basis for a conflict is established, the decision is reviewed with ‘only a modicum less deference than we otherwise would.’ ” Lain v. UNUM Life. Ins. Co. of Am., 279 F.3d 337, 343 (5th Cir.2002) (quoting Vega, 188 F.3d at 301). Wade concedes that the administrator has the discretion and final authority to determine eligibility for benefits, therefore triggering the abuse of discretion standard. Nonetheless he asserts that because Compaq both administers and insures the plan that an apparent conflict of interest exists; thus, he contends that the district court failed to apply the proper sliding scale standard. Even if a conflict of interest exists under these facts, the district court detailed the appropriate standard of review for such cases and nevertheless granted summary judgment for Compaq, ruling that the Administrator had not abused its discretion in denying Wade’s claim. We find no error in the standard of review it employed. IV. Next, Wade encourages us to heighten our standard of review" }, { "docid": "715261", "title": "", "text": "evidence that was not before the plan administrator for an abuse of discretion. See Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 985 (9th Cir.2001); Friedrich, 181 F.3d at 1110-11. We review for clear error underlying findings of fact. Friedrich, 181 F.3d at 1109. III. The district court correctly ruled that the appropriate standard for review of the Plan’s denial of benefits is de novo. The district court reviews a challenge to an ERISA plan’s denial of benefits de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We have held that the default standard of review in ERISA cases is de novo and that discretion exists only if it is “ ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992)). “We have held that ERISA plans are insufficient to confer discretionary authority on the administrator when they do not grant any power to construe the terms of the plan.” Abatie, 458 F.3d at 964. In Ingram v. Martin Marietta Long Term Disability Income Plan, 244 F.3d 1109, 1112-13 (9th Cir.2001), we concluded that even though the plan identified the carrier as “solely ... responsible” for providing benefits, deciding all claims, and controlling the operation and administration of the plan, “those provisions merely identified the plan administrator’s tasks, but bestowed no power to interpret the plan,” Abañe, 458 F.3d at 964, and therefore de novo review was appropriate. Here, the Plan nowhere states that the plan administrator, Northwest, has the full or sole discretion to interpret the terms of the plan. By its terms, the final decision as to eligibility is made not by Northwest, but by an independent mutually acceptable physician. Cf. Abatie, 458 F.3d at 965 (concluding that a plan conferred discretion because plan administrator had exclusive “responsibility to interpret the terms of" }, { "docid": "23467751", "title": "", "text": "facts and the decision or between the found facts and the evidence.” Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996). An administrator’s decision to deny benefits must be “based on evidence, even if disputable, that clearly supports the basis for its denial.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir.1999). We must find that “[wjithout some concrete evidence in the administrative record that supports the denial of the claim, ... the administrator abused its discretion.” Id. at 302 (emphasis added). A “sliding scale” is applied to the abuse of discretion standard where it is determined that the administrator has acted under a conflict of interest. Id. at 296. “The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. at 297. When a minimal basis for a conflict is established, we review the decision with “only a modicum less deference than we otherwise would.” Id. at 301 (emphasis added). In the instant case, the district court held that UNUM had an “inherent conflict of interest” because it was both the insurer and the plan administrator, which determined whether to pay claims under the Policy. Accordingly, the district court found that UNUM’s decision to deny Lain’s claim was subject to a “modicum less deference.” Id. UNUM argues that the district court erred in allowing UNUM only “a moderate or medium amount of deference on the sliding scale.” We are not required to apply the Vega “sliding scale” analysis to this case because we agree with the district court that “[gjiven the overwhelming evidence of ... Lain’s disability ... and the absence of any ‘concrete’ evidence to the contrary, the decision in this case would not be different even if UNUM’s factual determination[s] were entitled to all but ‘a modicum’ of deference.” A district court’s determination of whether an administrator abused its discretion in denying a claim for benefits is reviewed de novo. Bellaire Gen. Hosp., 97 F.3d at 829. However, this Court “will set aside the" }, { "docid": "23077219", "title": "", "text": "any additional relief under 29 U.S.C. § 1132(a)(3) and 29 C.F.R. § 2560.503-1(h). The district court ordered that Corry was entitled to benefits that she should have been paid from June 15, 2001 through June 1, 2005 plus prejudgment interest, the reinstatement of her benefits effective June 1, 2005, and reasonable attorney’s fees. Liberty appealed. III. This Court reviews summary judgments de novo in ERISA cases, applying the same standards as the district court. See Baker v. Metropolitan Life Ins. Co., 364 F.3d 624, 627-28 (5th Cir. 2004). We review an administrator’s denial of ERISA benefits for abuse of discretion if “an administrator has discretionary authority with respect to the decision at issue.” Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 295 (5th Cir.1999) (en banc). Here, Liberty had discretionary authority to determine eligibility for benefits and to construe the terms of the plan. Therefore, we review Liberty’s decisions for abuse of discretion. See id. Under the abuse of discretion standard, “[i]f the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary and capricious, it must prevail.” Ellis v. Liberty Life Assurance Co. of Bos ton, 394 F.3d 262, 273 (5th Cir.2004). “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted). “An arbitrary decision is one made without a rational connection between the known facts and the decision or between the found facts and the evidence.” Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996). Where, as here, the administrator is self-interested because it both insures and administers the plan, we apply a “sliding scale standard” and accord Liberty’s decision less than full deference. Vega, 188 F.3d at 295-97. “The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. at 297. Here, although Liberty’s dual role as administrator and insurer provides a minimal basis for a potential conflict of interest, see Lain v." }, { "docid": "23164240", "title": "", "text": "Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). A plan administrator abuses its discretion where the decision is not “ ‘based on evidence, even if disputable, that clearly supports the basis for its denial.’ ” Lain v. UNUM Life Ins. Co., 279 F.3d 337, 342 (5th Cir.2002) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir.1999) (en banc)). We reach a finding of abuse of discretion only where “the plan administrator acted arbitrarily or capriciously.” Meditrust Fin. Servs. Corp. v. Sterling Chems., hie., 168 F.3d 211, 214 (5th Cir.1999). “A decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence.” Id. at 215 (quotation marks omitted). Our “review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall somewhere on a continuum of reasonableness — even if on the low end.” Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007) (quotation marks omitted). If the administrator has a conflict of interest, “we weigh the conflict of interest as a factor in determining whether there is an abuse of discretion in the benefits denial, meaning we take account of several different considerations of which conflict of interest is one.” Crowell, 541 F.3d at 312 (quotation marks and footnotes omitted) (quoting Glenn, 128 S.Ct. at 2350-51); see also White v. St. Luke’s Episcopal Health Sys., 317 Fed.Appx. 390, 392 (5th Cir.2009) (“[A] ‘conflict of interest’ ... should ‘be weighed as a factor’ in determining whether an abuse of discretion occurred.”). In addressing how such a conflict must be accounted for under an abuse of discretion review, the Supreme Court in Glenn eschewed “special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/payor conflict.” 128 S.Ct. at 2351. In particular, the Court held that weighing a conflict as a factor in the abuse of discretion analysis does not “impl[y] a change in the standard of review, say," }, { "docid": "9774613", "title": "", "text": "Cir.1993); Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 597-98 (5th Cir.1994). Therefore, a plan administrator’s factual determinations are always reviewed for abuse of discretion; but its construction of the meaning of plan terms or plan benefit entitlement provisions is reviewed de novo unless there is an express grant of discretionary authority in that respect, and if there is such then review of those decisions is also for abuse of discretion. In light of this standard, we need not in fact determine which ASA controlled Vercher’s claim, because, as we will explain below, we believe that Alexander and MetLife applied a legally correct construction of the plan and its benefit entitlement provisions. 3. The administrator’s construction of the agreement Vercher claims that the district court erred in its determination that the administrator utilized a legally correct interpretation of the long-term disability provisions of the plan; specifically the definition of “any and every duty.” In this Circuit, we employ a two-step analysis in determining whether a plan administrator abused its discretion in construing plan terms. Rhorer v. Raytheon Eng’rs and Const’rs, Inc., 181 F.3d 634, 639 (5th Cir.1999). We first determine the legally correct interpretation of the plan and whether the administrator’s interpretation accords with the proper legal interpretation. Id. If the administrator’s construction is legally sound, then no abuse of discretion occurred and the inquiry ends. Id. at 639-40. However, if the court concludes that the administrator has not given the plan the legally correct inter pretation, the court must then determine whether the administrator’s interpretation constitutes an abuse of discretion. Id. at 640. A. The Legally Correct Interpretation In order to ascertain the legally correct interpretation of the plan, we must consider “(1) whether a uniform construction of the [plan] has been given by the administrator, (2) whether the interpretation is fair and reasonable, and (3) whether unanticipated costs will result from a different interpretation of the policy.” Lain v. UNUM Life Ins. Co. of America) 279 F.3d 337, 344 (5th Cir.2002). Applying these factors, the district court correctly determined that the essential inquiry here is whether MetLife’s" }, { "docid": "23467750", "title": "", "text": "STANDARD OF REVIEW An administrator’s denial of benefits under an ERISA plan is “reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (citation omitted). Because the language in the Policy does not give UNUM such discretion, we apply the de novo standard of review. However, UNUM’s factual determinations during the course of Lain’s benefit proceeding are reviewed for abuse of discretion. Estate of Bratton v. Nat.’l Union Fire Ins. Co. of Pittsburgh, Pa., 215 F.3d 516, 522 (5th Cir.2000). When applying the abuse of discretion standard, “we analy[ze] whether the plan administrator acted arbitrarily or capriciously.” Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir.1994) (quoting Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1014 (5th Cir.1992)). A decision is arbitrary when made “without a rational connection between the known facts and the decision or between the found facts and the evidence.” Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996). An administrator’s decision to deny benefits must be “based on evidence, even if disputable, that clearly supports the basis for its denial.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir.1999). We must find that “[wjithout some concrete evidence in the administrative record that supports the denial of the claim, ... the administrator abused its discretion.” Id. at 302 (emphasis added). A “sliding scale” is applied to the abuse of discretion standard where it is determined that the administrator has acted under a conflict of interest. Id. at 296. “The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. at 297. When a minimal basis for a conflict is established, we review the decision with “only a modicum less deference than we otherwise would.” Id. at 301 (emphasis added). In" }, { "docid": "16576130", "title": "", "text": "as the administrator and insurer under the Plan. See Lain v. UNUM Life Ins., 279 F.3d 337, 343 (5th Cir.2002). A conflicted administrator merits less deference. See Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 299 (5th Cir.1999) (en banc). This Court applies a “sliding scale” to determine how much deference to give: “[t]he greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. at 297. In Lain, we confronted a case where, as here, the insurer and administrator were the same entity. 279 F.3d at 343. As we did in Lain, we will assume arguendo that an administrator with such a conflict is “entitled to all but a modicum” of the deference afforded to unconflicted administrators. Id. Under this standard, the basis for Aetna’s decision must be supported by “some concrete evidence in the administrative record.” Vega, 188 F.3d at 302. S. No Concrete Evidence Supports Aet-na’s Decision Aetna found that “driving is not considered a material duty of a sales representative in the general economy.” Once the DOT definition is appropriately removed from consideration, however, we find a lack of concrete evidence to support this conclusion. The only dispute is an evidentiary one; the parties do not disagree over how the Plan should be interpreted. As discussed above, the Plan provides benefits to claimants who are unable to perform “the material duties of [their] own occupation[s].” Aetna has interpreted the term “own occupation” to mean employment of the same general character as the plaintiffs job in the general economy. Aetna has explained that the “material duties” of an occupation are the “essential tasks” generally required of employees in the occupation. Additionally, the Plan provides, “If solely due to disease or injury, you are unable to earn more than 80% of your adjusted pre-disability earnings, you will not be deemed to have performed the material duties of your own occupation on that day.” Robinson does not dispute Aetna’s right to reasonably interpret the terms of the Plan and does not challenge the reasonableness of its" }, { "docid": "23467749", "title": "", "text": "action: (1) breach of contract, (2) equitable or promissory estoppel, (3) common-law fraud and intentional misrepresentation, (4) violation of the Texas Deceptive Trade Practices Act, (5) violation of article 21.21 of the Texas Insurance Code, (6) breach of fiduciary duty and duty of good faith and fair dealing, and (7) in the event that her claims are preempted, she asserted denial of benefits and breach of fiduciary duty under ERISA. Subsequently, Lain filed a motion for partial summary judgment asking the district court to declare that ERISA did not preempt her state-law claims against UNUM and UNUM filed a motion to strike Lain’s jury demand. The district court found that Lain’s state law claims related to an ERISA-regulated plan and were therefore preempted. It also denied Lain’s demand for trial by jury. At the conclusion of trial, the district court held that Lain was disabled within the meaning of the Policy and awarded benefits from April 3, 1995 to the date of final judgment. The district court also awarded Lain attorneys’ fees. This appeal followed. STANDARD OF REVIEW An administrator’s denial of benefits under an ERISA plan is “reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (citation omitted). Because the language in the Policy does not give UNUM such discretion, we apply the de novo standard of review. However, UNUM’s factual determinations during the course of Lain’s benefit proceeding are reviewed for abuse of discretion. Estate of Bratton v. Nat.’l Union Fire Ins. Co. of Pittsburgh, Pa., 215 F.3d 516, 522 (5th Cir.2000). When applying the abuse of discretion standard, “we analy[ze] whether the plan administrator acted arbitrarily or capriciously.” Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir.1994) (quoting Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1014 (5th Cir.1992)). A decision is arbitrary when made “without a rational connection between the known" }, { "docid": "22568028", "title": "", "text": "that First Unum had denied his claims under the original and conversion policies in bad faith. After taking discovery, First Unum moved for judgment on the administrative record. At the same time, McCau-ley moved for summary judgment under Federal Rule of Civil Procedure 56. Treating both requests as motions for summary judgment, the District Court for the Southern District of New York (Lawrence M. McKenna, J.) denied McCauley’s motion and granted summary judgment in favor of First Unum, finding that a de novo standard of review was not applicable and that First Unum’s actions were neither arbitrary nor capricious. McCauley v. First UNUM Life Ins. Co., No. 97 Civ. 7662, 2006 WL 2854162 (S.D.N.Y. Oct. 5, 2006). McCauley appeals from that dismissal. DISCUSSION I. Legal Standard We review de novo a district court’s decision granting summary judgment in an ERISA action based on the administrative record and apply the same legal standard as the district court. Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir.1995); see also Glenn v. Met-Life, 461 F.3d 660, 665 (6th Cir.2006). “Summary judgment is appropriate only where the parties’ submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir.2002). The standard governing the district court’s review, and accordingly our review here, of an administrator’s interpretation of an ERISA benefit plan was first articulated by the Supreme Court in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Court explained that “a denial of benefits ... is to be reviewed under a de novo standard unless the benefit plan gives the administrator ... authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. 948. Where such authority is given, the administrator’s interpretation is reviewed for an abuse of discretion. Id. Furthermore, “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of" }, { "docid": "23434455", "title": "", "text": "de novo. Grupo Protexa, S.A. v. All Am. Marine Slip, 20 F.3d 1224, 1231 (3d Cir. 1994). We review a district court’s grant of summary judgment de novo, applying the same standard the district court applied. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.2007). We also review the legal interpretation of contractual language de novo. Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1254 (3d Cir. 1993). III. A. Standard of Review of LINA’s Benefits Denial The Supreme Court has held that “a denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If the plan gives the administrator or fiduciary discretionary authority to make eligibility determinations, we review its decisions under an abuse-of-discretion (or arbitrary and capricious) standard. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230, 233 (3d Cir.2009). “Whether a plan administrator’s exercise of power is mandatory or discretionary depends upon the terms of the plan.” Luby v. Teamsters Health, Welfare, & Pension Trust Funds, 944 F.2d 1176, 1180 (3d Cir.1991). There are no “magic words” determining the scope of judicial review of decisions to deny benefits, and discretionary powers may be granted expressly or implicitly. Id. However, when a plan is ambiguous, it is construed in favor of the insured. Heasley, 2 F.3d at 1258. “The plan administrator bears the burden of proving that the arbitrary and capricious standard of review applies.” Kinstler v. First Reliance Std. Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999). Under the abuse-of-discretion standard, we may overturn an administrator’s decision only if it is “without reason, unsupported by substantial evidence or erroneous as a matter of law.” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir.2011) (quoting" }, { "docid": "23077218", "title": "", "text": "denial letter. Additionally, Corry submitted a cover letter with the affidavits. It is undisputed that the cover letter clearly stated: “Attention: Mr. Chuck Johnson, Appeals Review Consultant.” II. This lawsuit followed. On January 15, 2004, Corry filed her complaint in federal district court. The parties conducted discovery and moved for summary judgment. Additionally, Liberty moved to strike from the evidence the three affidavits Corry had submitted to Liberty on October 30, 2002. On June 1, 2005, the district court entered final judgment. As to Liberty’s motion for summary judgment, the district court denied it in part and granted it in part. Additionally, the district court denied Liberty’s motion to strike the affidavits. The district court granted Corry’s motion for summary judgment on the basis of 29 U.S.C. § 1132(a)(1)(B) of ERISA, holding that Liberty’s decision to terminate Corry’s benefits was an abuse of discretion for failure to consider Corry’s subjective complaints of pain and disability. Because the district court granted Corry full relief under 29 U.S.C. § 1132(a)(1)(B) of ERISA, it dismissed her claims for any additional relief under 29 U.S.C. § 1132(a)(3) and 29 C.F.R. § 2560.503-1(h). The district court ordered that Corry was entitled to benefits that she should have been paid from June 15, 2001 through June 1, 2005 plus prejudgment interest, the reinstatement of her benefits effective June 1, 2005, and reasonable attorney’s fees. Liberty appealed. III. This Court reviews summary judgments de novo in ERISA cases, applying the same standards as the district court. See Baker v. Metropolitan Life Ins. Co., 364 F.3d 624, 627-28 (5th Cir. 2004). We review an administrator’s denial of ERISA benefits for abuse of discretion if “an administrator has discretionary authority with respect to the decision at issue.” Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 295 (5th Cir.1999) (en banc). Here, Liberty had discretionary authority to determine eligibility for benefits and to construe the terms of the plan. Therefore, we review Liberty’s decisions for abuse of discretion. See id. Under the abuse of discretion standard, “[i]f the plan fiduciary’s decision is supported by substantial evidence and is" }, { "docid": "16576129", "title": "", "text": "several of our sister Circuits have recognized that an administrator makes a finding of fact when it determines the material duties of a certain occupation. Kinstler v. First Reliance Life Ins., 181 F.3d 243, 252-53 (2d Cir.1999) (labeling as a “fact issue” the material duties of a given occupation); see Lasser v. Reliance Standard Life Ins., 344 F.3d 381, 387-88 (3d Cir.2003); Gallagher v. Reliance Standard Life Ins., 305 F.3d 264, 270-73 (4th Cir. 2002). Accordingly, the district court erred in considering the DOT entry because that evidence was not in the admin istrative record. 2. Aetna’s Decision Will Be Assessed Under a Modified Abuse of Discretion Standard Where a plan grants the administrator discretion to determine claims for benefits, claimants may recover under ERISA only if the administrator’s rejection of their claim was an abuse of discretion. See Atteberry v. Memorial-Hermann Healthcare Sys., 405 F.3d 344, 347 (5th Cir.2005). The parties agree that the Plan vests Aetna with such discretion. In this case, Aetna has an “inherent conflict of interest” because it serves both as the administrator and insurer under the Plan. See Lain v. UNUM Life Ins., 279 F.3d 337, 343 (5th Cir.2002). A conflicted administrator merits less deference. See Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 299 (5th Cir.1999) (en banc). This Court applies a “sliding scale” to determine how much deference to give: “[t]he greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. at 297. In Lain, we confronted a case where, as here, the insurer and administrator were the same entity. 279 F.3d at 343. As we did in Lain, we will assume arguendo that an administrator with such a conflict is “entitled to all but a modicum” of the deference afforded to unconflicted administrators. Id. Under this standard, the basis for Aetna’s decision must be supported by “some concrete evidence in the administrative record.” Vega, 188 F.3d at 302. S. No Concrete Evidence Supports Aet-na’s Decision Aetna found that “driving is not considered a material duty of a" }, { "docid": "16464613", "title": "", "text": "control in ERISA cases.” Cooper v. Hewlett-Packard Co., 592 F.3d 645, 651 (5th Cir.2009) (quoting Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir.2004)). We review the grant of summary judgment de novo, applying the same standard as the district court. Pub. Citizen Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 217 (5th Cir.2011). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.CivP. 56(a). We also review de novo the district court’s selection of the appropriate standard of review to be applied to an ERISA administrator’s eligibility determination. Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir.1999). Unless the terms of the plan give the administrator “discretionary authority to determine eligibility for benefits or to construe the terms of the plant,]” an administrator’s decision to deny benefits is reviewed de novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if the language of the plan does grant the plan administrator discretionary authority to construe the terms of the plan or determine eligibility for benefits, a plan’s eligibility determination must be upheld by a court unless it is found to be an abuse of discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) (citing Firestone Tire & Rubber Co., 489 U.S. at 111, 115, 109 S.Ct. 948). Independent of the administrator’s ultimate authority to determine benefit eligibility, factual determinations made by the plan administrator during the course of a benefits review will be rejected only upon a showing of abuse of discretion. Meditrust Fin. Servs. Corp., 168 F.3d at 213. In the ERISA context, “[a]buse of discretion review is synonymous with arbitrary and capricious review.” Cooper, 592 F.3d at 652. This standard requires only that substantial evidence supports the plan fiduciary’s decision. Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 273 (5th Cir.2004). Substantial evidence is" }, { "docid": "7792923", "title": "", "text": "submit “findings of fact and conclusions of law” for the purposes of a bench trial (3 Appellant’s App. at 1028), to be conducted pursuant to an arbitrary and capricious standard of judicial review. Following a bench trial, the district court held that UNUM’s decision to deny Ray’s claim was arbitrary and capricious. Finding a conflict of interest, indicia of bad faith and a lack of substantial evidence to support UNUM’s decision, the district court concluded that Ray was entitled to disability benefits under the Plan. UNUM appeals, arguing that the district court misapplied the arbitrary and capricious standard, and that given the correct amount of deference, its decision to deny Ray benefits must be upheld. II Of primary importance is whether the district court erred in applying the arbitrary and capricious standard of judicial review. A district court’s determination of the proper standard to apply in its review of an ERISA plan administrator’s decision is a legal conclusion we review de novo. Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 807 (6th Cir.2002); see also Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189 (10th Cir.1999) (“We review the district court’s decisions on questions of law ... de novo.”) A Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), sets forth the appropriate standard of review in actions challenging the denial of benefits under an ERISA plan: “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” When an ERISA plan gives the administrator discretionary powers, the district court reviews the administrator’s decisions under an arbitrary and capricious standard. See, e.g., Pitman v. Blue Cross & Blue Shield of Okla., 217 F.3d 1291, 1295 (10th Cir.2000); Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir.1992). Thus, only if the Plan confers discretion on UNUM either to interpret the terms" }, { "docid": "23467752", "title": "", "text": "the instant case, the district court held that UNUM had an “inherent conflict of interest” because it was both the insurer and the plan administrator, which determined whether to pay claims under the Policy. Accordingly, the district court found that UNUM’s decision to deny Lain’s claim was subject to a “modicum less deference.” Id. UNUM argues that the district court erred in allowing UNUM only “a moderate or medium amount of deference on the sliding scale.” We are not required to apply the Vega “sliding scale” analysis to this case because we agree with the district court that “[gjiven the overwhelming evidence of ... Lain’s disability ... and the absence of any ‘concrete’ evidence to the contrary, the decision in this case would not be different even if UNUM’s factual determination[s] were entitled to all but ‘a modicum’ of deference.” A district court’s determination of whether an administrator abused its discretion in denying a claim for benefits is reviewed de novo. Bellaire Gen. Hosp., 97 F.3d at 829. However, this Court “will set aside the district court’s factual findings underlying its review of the [policy] administrator’s determination only if clearly erroneous.” Id. (citation omitted). The district court has discretion to allow reasonable attorneys’ fees and court costs to either party under 29 U.S.C. § 1132(g)(1). “Such an award [of attorneys’ fees and costs] is purely discretionary, and we review the district court’s decision only for an abuse of discretion.” Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1016-17 (5th Cir.1992) (citing Donovan v. Cunningham, 716 F.2d 1455, 1475 (5th Cir.1983)). DISCUSSION I. -Disability In assessing whether to grant or deny benefits, an administrator must make two determinations. First, he must determine the facts underlying the claim presented and then he must determine whether the facts establish a claim to be honored under the terms of the policy. Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 394 (5th Cir.1998). In the instant case, UNUM argues that, based on the established facts, Lain is not disabled as defined under the Policy. The Policy provides “Disability” and “disabled” mean" }, { "docid": "17985675", "title": "", "text": "and the inferences to be drawn therefrom in the light most favorable to the non-moving party. Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.2001). Plaintiffs argue that the district court applied the incorrect standard of review. This is a question of law that we review de novo. Chevron Chem. Co. v. Oil, Chem. & Atomic Workers Local Union 4-447, 47 F.3d 139, 142 (5th Cir.1995). ERISA authorizes the district court to review a denial of a claim for benefits, see 29 U.S.C. § 1132(a)(1)(B), but the statute provides no guidance on the appropriate standard of review for the courts. Vega v. Nat’l Life Ins. Serv. Co., 188 F.3d 287, 295 (5th Cir.1999) (en banc). Where a plan administrator has been vested with the discretionary authority to interpret a benefit plan, a district court reviews the administrator’s interpretations only for abuse of discretion. “[0]ur review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall somewhere on a continuum of reasonableness — even if on the low end.” Vega, 188 F.3d at 297. Where, however, an administrator’s decision is tainted by a conflict of interest, the court employs a “sliding scale” to evaluating whether there was an abuse of discretion. Id. This approach does not mark a change in the applicable standard, but only requires the court to reduce the amount of deference it provides to an administrator’s decision. The degree to which a court must abrogate its deference to the administrator depends on the extent to which the challenging party has succeeded in substantiating its claim that there is a conflict. “The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. Where, however, only “a minimal basis for a conflict is established, we review the decision with ‘only a modicum less deference than we otherwise would.’ ” Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 343 (5th Cir.2002) (quoting Vega, 188 F.3d at 301). Plaintiffs concede that the administrator has" }, { "docid": "2869384", "title": "", "text": "Cleco retaliated against him for requesting reasonable accommodations. Jenkins appeals the court’s summary judgment ruling and involuntary dismissal of his claims. II. STANDARD OF REVIEW A. Summary Judgment This court reviews a district court’s grant of summary judgment de novo, applying the same standards as the trial court. See Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 205 (5th Cir.1998). Summary judgment is proper if the evidence shows 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. Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001). The Court views all evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). In an ERISA action, the plan administrator is granted discretionary authority to construe the plan documents and determine benefit eligibility. Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 332-33 (5th Cir.2001). Courts review the denial of benefits under an abuse of discretion standard. Id. The administrator’s decision will only be upset if it acted in an arbitrary or capricious manner in denying benefits. Matassarin v. Lynch, 174 F.3d 549, 563 (5th Cir.1999). A decision is arbitrary when it is made “without a rational connection between the known facts and the decision or between the found facts and the evidence.” Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996). When the administrator is also the insurer of the plan, there is a conflict of interest and the abuse of discretion standard is somewhat less deferential. Gooden, 250 F.3d at 333. Reviewing courts are limited to the administrative record and may inquire only “whether the ‘record adequately supports the administrator’s decision.’ ” Id. (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 298 (5th Cir.1999) (en banc)). B. Fed. R. Civ. P. 41(b) Dismissal This court reviews factual findings following a Rule 41(b) dismissal under a clearly erroneous standard. Prof'l Geophysics, Inc." } ]

[ { "docid": "23536363", "title": "", "text": "class action suits, Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983). To withstand judicial scrutiny, the settlement need only be “fair, reasonable and adequate.” Weinberger, 698 F.2d at 73; West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085 (2d Cir.), cert. denied sub nom. Cotier Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971). In making this determination, the Court’s role is to compare the terms of the compromise with the likely rewards of litigation. Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968); Weinberger, 698 F.2d at 73; In Re “Agent Orange\"Product Liability Litigation, 597 F.Supp. 740, 762 (E.D.N.Y.1984) ; Kaye v. Fast Food Operators, Inc., 99 F.R.D. 161, 163 (S.D.N.Y.1983). In City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), the Second Circuit provid ed a nonexhaustive list of factors to consider in reviewing a settlement proposal: (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 the class action through the trial ...; (7) the ability of the defendants to withstand a 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 to a possible recovery in light of all the attendant risks of litigation----(Citations omitted). Accord Malchman v. Davis, 706 F.2d 426, 433-34 (2d Cir.1983). It is also appropriate to examine the negotiating process that gave rise to the settlement. Weinberger, 698 F.2d at 74. The proper inquiry in this regard is whether the settlement was achieved through “arm’s length negotiations” by counsel who have “the experience and ability.. .necessary to effective representation of" } ]

[ { "docid": "17628315", "title": "", "text": "will grant Plaintiffs’ unopposed motion for class certification. B. Fairness of Settlement Terms Under Rule 23(e)(2), Fed.R.Civ. P., “[i]f the proposed settlement] would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.” In Girsh v. Jepson, the Court of Appeals set forth the list of factors that a district court must consider when determining whether a proposed settlement is fair, reasonable, and adequate under Rule 23(e)(2). The Girsh factors are: (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 the trial; (7) the ability of defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. In re AT&T Corp., 455 F.3d 160, 164-65 (3d Cir.2006) (citing Girsh, 521 F.2d at 157). The Court of Appeals has made clear that district courts must be “even more scrupulous than usual in approving settlements where no class has yet been formally certified.” In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigartion, 55 F.3d 768, 805 (3d Cir.1995). 1. Complexity, Expense and Likely Duration of the Litigation The first Girsh factor requires the Court to evaluate “the complexity, expense and likely duration of the litigation.” In re AT & T Corp., 455 F.3d at 164 (citation omitted). This factor is intended to capture the probable costs, in both time and money, of continued litigation. By measuring the costs of continuing on the adversarial path, a court can gauge the benefit of settling the claim amicably. General Motors, 55 F.3d at 812 (internal quotations and citations omitted). Considerations of the expense and duration of further litigation weigh strongly in favor of approving" }, { "docid": "14097848", "title": "", "text": "“after a hearing and on finding that [the settlement] is fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). This requires consideration of the “negotiating process leading up to the settlement, i.e., procedural fairness, as well as the settlement’s substantive terms, i.e., substantive fairness.” McReynolds v. Richards-Cantave, 588 F.3d 790, 803-04 (2d Cir.2009) (quoting D'Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.2001)). 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.” Wal-Mart Stores, Inc. v. Visa U.S.A., 396 F.3d 96, 116 (2d Cir.2005). All counsel here are experienced and capable. The parties here engaged in sufficient discovery to inform their negotiations, which were adversarial and at arm’s length. (Decl. of Brent E. Pelton ¶¶ 11-21 (ECF No. 45).) The settlement is procedurally reasonable and entitled to a presumption of fairness. At the final approval stage, courts determine whether a settlement is substantively fair by comparing “the terms of the compromise with the likely rewards of litigation.” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir.1995) (quoting Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982)). Courts in this circuit typically consider the nine 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 the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000) (internal citations omitted). b. Grinnell Factors Wage and hour cases are not unduly complex. As discussed below" }, { "docid": "18683656", "title": "", "text": "settlement must be both substantively reasonable compared to the likely rewards of litigation, Shlensky v. Dorsey, 574 F.2d 131, 147 (3d Cir.1978), and the result of good faith, arms length negotiations, Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir.1982). Various courts have attempted to specify factors to be considered prior to decision upon the fair, reasonable, and adequate nature of a proposed class action settlement. See Malchman v. Davis, 706 F.2d 426, 433-34 (2d Cir.1983) (nine factors); Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir.1983) (six factors); Officers for Justice v. Civil Service Commission, 688 F.2d 615, 625 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983) (eight factors). In Girsch v. Jepson, 521 F.2d 153 (3d Cir. 1975), this Circuit noted the relevancy of the following nine factors in determining the fairness of a settlement: ... (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 the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ... ; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation____ Girsch, 561 F.2d at 157 (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974)). A. Uncertainties of Litigation This settlement was achieved after discovery was virtually completed and after settlement of all other coordinated cases alleging conspiracy in the copper water tubing industry from 1975 through November, 1982. With the exception of actual trial preparation (though this would be extensive), this settlement did not avoid a great deal of discovery. However, a settlement allows the class to avoid many risks it would face in continuing to litigate against" }, { "docid": "6116771", "title": "", "text": "of distribution to the Court, together with any necessary claims form. Discussion I. Standards for Judicial Approval of a Settlement Fed.R.Civ.P. 23 provides that “[a] class action shall not be dismissed or compromised without the approval of the court.” The decision to grant or deny such approval lies within the discretion of the trial court, see In re Ivan F. Boesky Sec. Litig., 948 F.2d 1358, 1368 (2d Cir.1991); Newman v. Stein, 464 F.2d 689, 692 (2d Cir.1972), and this discretion should be exercised in light of the general judicial policy favoring settlement. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982) (3 Neuberg, Class Actions § 5570c at 479-80 (1977)); In re Michael Milken & Assoc. Sec. Litig., 150 F.R.D. 46, 53 (S.D.N.Y.1993); Chatelain v. Prudential-Bache Sec., Inc., 805 F.Supp. 209, 212 (S.D.N.Y.1992). It is well-established that courts’ principal responsibility in approving class action settlements is to ensure that such settlements are fair adequate and reasonable. See e.g., Weinberger, 698 F.2d at 73 (“The central question raised by the proposed settlement of a class action is whether the compromise is fair, reasonable and adequate.”); In re PaineWebber Limited Partnerships Litigation, 171 F.R.D. 104, 124 (S.D.N.Y.1997). This determination “involves consideration of two types of evidence.” Weinberger, 698 F.2d at 73. The Court’s primary concern is with “the substantive terms of the settlement compared to the likely result of a trial,” Malchman v. Davis, 706 F.2d 426, 433 (2d Cir.1983), and to that end “the trial judge must apprise himself of all the facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim[s] be litigated.” Weinberger, 698 F.2d at 74. (internal citations omitted). The Second Circuit has held that nine factors are generally considered in determining the fairness of a proposed settlement: (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 the class action" }, { "docid": "5282006", "title": "", "text": "The request for injunctive relief meets the requirements of Rule 23(b)(2), since the defendants are alleged to have acted or refused to act on grounds generally applicable to the class. Class treatment also is appropriate under Rule 23(b)(3). Common issues predominate over any issues affecting only individual members, and a class action is superior to thousands of individual actions. Amchem, 521 U.S. at 625, 117 S.Ct. 2231 (“Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws.”). Evaluation of the Settlements “The law favors settlements of class actions no less than of other cases.” In re Gulf Oil/Cities Service Tender Offer Litig., 142 F.R.D. 588, 590 (S.D.N.Y.1992) (citing Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982)). “The central question raised by the proposed settlement of a class action is whether the compromise is fair, reasonable and adequate.” Weinberger, 698 F.2d at 73. Guidelines for evaluating whether the settlement is fair and the class members’ interests adequately protected are well established in this circuit. They include the complexity, expense and likely duration of the underlying litigation; the risks of litiga tion for all parties; comparison of the proposed settlement with the likely result of litigation; the scope of discovery preceding settlement; the ability of the defendant to satisfy a greater judgment; and the reaction of the class to the settlement. See In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 292 (2d Cir.1992) (citing Wein-berger, 698 F.2d at 73-74); In re Warner Communications Sec. Litig., 798 F.2d 35, 37 (2d Cir.1986); City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974). The court must also examine the negotiating process that gave rise to the settlement to determine if it was achieved through arms-length negotiations by counsel with the experience and ability to effectively represent the class’s interests. Weinberger, 698 F.2d at 74 (citation omitted). The standards for approving a parens patriae suit are the same. Reebok, 903 F.Supp. at 535-36; New York v. Keds Corp., 1994-1 Trade Cas. (CCH) ¶ 70,549, 1994 WL 97201, at *2-3 (S.D.N.Y." }, { "docid": "18681196", "title": "", "text": "which might go to trial and prevail on the merits, the net recovery of a plaintiff from a broker-dealer must be credited to amounts which may come due from the guaranty association. As far as the Court can tell, some of the state associations mean to disclaim liability, or at least to postpone a determination of their liability until 1987 when the Rehabilitation Plan is concluded. Other states’ funds have notified SPDA holders in their states that the guaranty fund will insure a full recovery. (See Defendant’s Ex. C-3 and G-46). The applicable standards by which a class action settlement is judged have been set forth clearly in the case law of this Circuit. A settlement proposal must be “fair, adequate and reasonable,” Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983), upon a comparison of “the terms of the compromise with the likely rewards of litigation.” Id. at 73 (quoting Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25, 88 S.Ct. 1157, 1163-64, 20 L.Ed.2d 1 (1968). The role of the court is to reach an objective, educated estimate of the complexity and probable success of full litigation, together with all other factors relevant to a fair evaluation of the wisdom of the proposed compromise. Kaye v. Fast Food Operators, Inc., 99 F.R.D. 161, 163 (S.D.N.Y.1983). As was stated in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), the relevant factors include: “(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 the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment ...; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; [and] (9) the range of" }, { "docid": "836418", "title": "", "text": "expired on April 27, 1994. DISCUSSION I. Approval of the Settlement. Under the terms of the February 1, 1994 Settlement Agreement, defendants have agreed to pay $2,470,000.00 into an interest-bearing account, in return for dismissal with prejudice and release of all claims that have been or could have been asserted by class members. The parties have also agreed to retain the Certified Public Accounting firm of Heffler & Associates to administer the notice and claims process, for the fee of $325,000.00 to be paid by defendants. Finally, defendants have agreed to release all class members from any pending claims for excess wear and tear charges, conservatively valued at $1,000,000.00. The total value of the proposed settlement is thus stated at $3,795,-000.00, against a projected full value of approximately $5,900,000.00 in damages from the Quevedo and Freedman-Harris actions combined. Court approval of class action settlements is required under Rule 23(e) of the Federal Rules of Civil Procedure. In deciding whether to approve a proposed class action settlement, the court must determine whether the terms are fair, reasonable and adequate. Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Chatelain v. Prudential-Bache Securities, Inc., 805 F.Supp. 209, 212 (S.D.N.Y.1992). The Second Circuit has identified nine factors that should be considered in determining the fairness of a proposed settlement: (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 the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974) (citations omitted); see also County of Suffolk" }, { "docid": "8074025", "title": "", "text": "was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.” Malchman, 706 F.2d at 433 (citing Weinberger, 698 F.2d at 73). The Court has a fiduciary duty to ensure that the settlement is not the product of collusion. In re Warner Communications Securities Litigation, 798 F.2d 35, 37 (2d Cir.1986). So long as the integrity of the arm’s length negotiation process is preserved, however, a strong initial presumption of fairness attaches to the proposed settlement, Chatelain, 805 F.Supp. at 212 (citing Ross v. A.H. Robins Co., Inc., 700 F.Supp. 682, 683 (S.D.N.Y. 1988)), and “great weight” is accorded to the recommendations of counsel, who are most closely acquainted with the facts of the underlying litigation. Id. (citing Cannon v. Texas Gulf Sulphur Co., 55 F.R.D. 308 (S.D.N.Y.1972)). (1) Substantive Fairness: The Grinnell Factors The analytical framework for evaluating the substantive fairness of a class-action settlement was set forth by the Second Circuit in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), more than two decades ago, and is now well established. In determining whether to approve a proposed Settlement a district court should consider the following nine 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 the class action through the trial; (7) the ability of the defendants to withstand a 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 all the attendant risks of litigation. Id. at 463 (internal citations omitted). In its consideration of these factors, “[t]he Court must eschew any rubber stamp approval in favor of an independent evaluation, yet, at the same time, it must stop short of the detailed and thorough investigation that it would undertake if it were actually trying the ease.” Id. at" }, { "docid": "44466", "title": "", "text": "policy favoring settlement. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982). The Second Circuit has identified nine factors (the “Grinnell factors”) that courts should review in determining the fairness of a proposed settlement: (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 the class action through the trial; (7) the ability of the defendants to withstand a 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 to a possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463. Furthermore, the court should analyze the negotiating process in light of “the experience of counsel, the vigor with which the case was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.” Malchman v. Davis, 706 F.2d 426, 433 (2d Cir.1983) (citations omitted). A strong presumption of fairness attaches to proposed settlements that have been negotiated at arms-length. See Chatelain v. Prudential-Bache Sec., 805 F.Supp. 209, 212 (S.D.N.Y. 1992). The plaintiffs argue that the Grin-nell factors weigh in favor of the settlement. In particular, the plaintiffs contend that: (1) the case involves complex legal and factual issues and would require the involvement of expensive experts; (2) no class member objected to the settlement and only two requested to be excluded from the class; (3) the plaintiffs conducted some pretrial discovery (including, they say, reviewing tens of thousands of pages of documents, interviewing three Twinlab officers, including two of the Individual Officer Defendants, reviewing employees’ public filings, annual reports, press releases, other public statements, consulting with plaintiffs’ experts and agents concerning factual allegations contained in the complaint, damages allegedly sustained by the class and researching other potential defenses asserted in the action); (4) the defendants would assert in the exercise of reasonable diligence that" }, { "docid": "22818523", "title": "", "text": "668 F.2d 654, 658 (2d Cir.1982). “[G]reat weight [will] be accorded the views of the trial judge because exposure to the litigants and their strategies makes him uniquely aware of the strengths and weaknesses of the case and the risks of continued litigation. [We] will not overturn a district court’s approval of a settlement absent a clear showing of an abuse of discretion.” TBK Partners, Ltd. v. Western Union Comp., 675 F.2d 456, 463 (2d Cir.1982); see In re Warner Communications Sec. Litig., 798 F.2d 35, 37 (2d Cir.1986). A proferred settlement that is in large part negotiated prior to certification of the class — as occurred herein — is subject to a higher degree of scrutiny than is usual in assessing a settlement’s fairness. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983). We are satisfied that the district judge examined the settlement agreement with heightened scrutiny, 710 F.Supp. at 1436; additionally, the judge noted that the presence of the court-appointed mediator during the precer-tification hearings “helped ensure that the proceedings were free of collusion or undue pressure.” Id. Commonly, there are nine factors that should be considered in determining the fairness of a proposed settlement: (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 es tablishing liability, (5) the risks of establishing damages, (6) the risks of maintaining the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of reasonableness' of the settlement fund in light of the best possible recovery, (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation[.] Robertson v. National Basketball Ass’n, 556 F.2d 682, 684 n. 1 (2d Cir.1977) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974)). The district judge expressly considered each of these factors before" }, { "docid": "2260240", "title": "", "text": "analysis of the superiority factors militates in favor of certifying the class. C. Fairness As noted, federal law requires judicial approval of the settlement of a class action lawsuit. Under Fed.R.Civ.P. 23(e), the Court should approve a class settlement if it is “fair, adequate, and reasonable.” Eichenholtz v. Brennan, 52 F.3d 478, 482 (3d Cir.1995) (internal citations omitted). The court has considerable discretion in determining whether a proposed settlement meets this standard. See id. at 482 (citing Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 965 (3d Cir.1983)). A district court must consider the following factors when evaluating the fairness and adequacy of a settlement: (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 the class action through the trial ...; (7) the ability of the defendants to withstand a 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 to a possible recovery in light of all the attendant risks of litigationf.] Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir.1975) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974)). 1. Complexity, Expense and Duration of the Litigation “This factor is intended to capture the probable costs, in both time and money, of continued litigation.” In re Gen. Motors Corp., 55 F.3d at 811. Securities class actions are inherently complex, and this case is no exception, as the expense of continued litigation against AremisSoft would be substantial. See In re Ikon, 194 F.R.D. 166, 179. First, if the parties had not settled, they would have had to engage in an extensive discovery process. At a minimum, this process would have involved; review and analysis of voluminous documents, many of which would have had to be translated into English; an extensive" }, { "docid": "19022894", "title": "", "text": "notice and of possible settlements can be made to the open class members, and that the closed class members can be notified through publication. Cf. City of Philadelphia v. American Oil Co., 53 F.R.D. 45, 73-74 (D.N.J.1971) (rejecting as unmanageable a class composed of six million purchasers of oil products); United Egg Producers v. Bauer Int’l Corp., 312 F.Supp. 319, 321 (S.D.N.Y.1970) (rejecting “class comprising all consumers of eggs in the United States” on similar grounds). Given the difficulties inherent in individual resolution of the claims the Lakes seek to prosecute on behalf of the proposed class, the Court finds that the class action form presents the superior method of resolving the instant litigation. The Court will therefore approve the proposed class as previously defined for purposes of settlement. The Court will now turn to the proposed settlement. C. Preliminary Approval of the Class Settlement The Lakes and First Nationwide have proposed a settlement of this action and have submitted it for the Court’s preliminary approval. See Fed.R.Civ.P. 23(e). The standards for approval of a class action are well-settled. The Court will examine the proposed settlement to determine if it is fair, adequate, and reasonable. See Stoetzner v. United States Steel Corp., 897 F.2d 115, 118 (3d Cir.1990); Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 965 (3d Cir.1983). In making this determination, the Court must be guided by the factors set forth in the leading case of Girsh v. Jepson: (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 the class action through the trial; (7) the ability of the defendants to withstand a greater settlement; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. 521 F.2d 153," }, { "docid": "1564698", "title": "", "text": "commonality, typicality, and adequacy of representation — as well as the two requirements of Rule 23(b)(3) — predominance and superiority, it will approve the proposed class. The court will now address the terms of the proposed settlement. C. Preliminary Approval of the Class Settlement Having reached a tentative settlement of this class action, the parties are seeking this court’s preliminary approval of the proposed settlement pursuant to Rule 23(e). See Fed.R.Civ.P. 23(e). In order for a court to grant approval of a class action settlement, the court must determine whether the proposed settlement is fair, adequate, and reasonable. See Collier, 192 F.R.D. at 184 (citing General Motors, 55 F.3d at 785; Stoetzner v. United States Steel Corp., 897 F.2d 115, 118 (3d Cir.1990); Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 965 (3d Cir.1983)). The Third Circuit in Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975) identified certain factors which the court should consider in determining whether a proposed settlement agreement is fair, adequate, and reasonable: (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 the class action through the trial; (7) the ability of the defendants to withstand a greater settlement; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. at 157 (citing City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974)). “The proponents of the settlement bear the burden of proving that these factors weigh in favor of approval.” General Motors, 55 F.3d at 785. Of particular importance in reaching this determination is whether the settlement was not the product of a collusive agreement between the parties to the action. See Lake v. First Nationwide Bank, 900 F.Supp. 726, 732 (E.D.Pa.1995) (“[D]ue to the" }, { "docid": "6116772", "title": "", "text": "class action is whether the compromise is fair, reasonable and adequate.”); In re PaineWebber Limited Partnerships Litigation, 171 F.R.D. 104, 124 (S.D.N.Y.1997). This determination “involves consideration of two types of evidence.” Weinberger, 698 F.2d at 73. The Court’s primary concern is with “the substantive terms of the settlement compared to the likely result of a trial,” Malchman v. Davis, 706 F.2d 426, 433 (2d Cir.1983), and to that end “the trial judge must apprise himself of all the facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim[s] be litigated.” Weinberger, 698 F.2d at 74. (internal citations omitted). The Second Circuit has held that nine factors are generally considered in determining the fairness of a proposed settlement: (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 the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of reasonableness of the settlement fund in light of the best possible recovery, (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974) (“Grinnell I”). The Court’s second concern is with the “negotiating process by which the settlement was reached,” Weinberger, 698 F.2d at 73, which must be examined “in light of the experience of counsel, the vigor with which the case was prosecuted, and the coercion or collusion that may have marred the negotiations themselves.” Malchman, 706 F.2d at 433 (citing Weinberger, 698 F.2d at 73). The court has a fiduciary duty to ensure that the settlement is not the product of collusion. See In re Warner Communications Securities Litigation, 798 F.2d 35, 37 (2d Cir.1986). So long as the integrity of the arm’s length negotiation process is preserved, however, a strong initial" }, { "docid": "44465", "title": "", "text": "of their alleged distribution of false and misleading statements and omission of material facts regarding Twinlab’s business operations and financial results. Finally, the sixth element, that a class action is a superior means to adjudicate this matter, is met because of the numerous plaintiffs involved. Accordingly, the Court certifies this action as a class action. B. The Settlement Agreement Rule 23(e) of the Federal Rules of Civil Procedure requires that any settlement or dismissal of a class action be approved by the court. In determining whether to approve a class action settlement, the district court must determine whether the settlement is “fair, adequate, and reasonable, and not a product of collusion.” Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir.2000). In so doing, the court must “eschew any rubber stamp approval” j^et simultaneously “stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case.” City of Detroit v. Grinnell Corp., 495 F.2d 448, 462 (2d Cir.1974). Judicial discretion should be exercised in light of the general policy favoring settlement. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982). The Second Circuit has identified nine factors (the “Grinnell factors”) that courts should review in determining the fairness of a proposed settlement: (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 the class action through the trial; (7) the ability of the defendants to withstand a 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 to a possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463. Furthermore, the court should analyze the negotiating process in light of “the experience of counsel, the vigor with which the case was prosecuted, and the coercion or collusion that may have" }, { "docid": "19316501", "title": "", "text": "discovery.” Id. at 280 (citing Manual for Complex Litigation (Third) § 30.42 (1995)). A. Standards for Approval of a Class Action Settlement In evaluating a proposed settlement under Federal Rule of Civil Procedure 23, the Court must determine whether the settlement, taken as a whole, is fair, reasonable and adequate. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir.1995); see In re WorldCom, Inc. Sec. Litig., No. 02 Civ. 3288, 2004 WL 2591402, at *10 (S.D.N.Y. Nov. 12, 2004). It is well-established that courts in this Circuit examine the fairness, adequacy and reasonableness of a class action settlement according to 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 the class action through the trial; (7) the ability of the defendants to withstand a 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 all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974) (citations omitted). “In finding that a settlement is fair, not every factor must weigh in favor of settlement, ‘rather the court should consider the totality of these factors in light of the particular circumstances.’ ” In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 456 (S.D.N.Y.2004) (quoting Thompson v. Metro. Life Ins. Co., 216 F.R.D. 55, 61 (S.D.N.Y. 2003)). In deciding whether to approve a settlement, a court “should not attempt to approximate a litigated determination of the merits of the case lest the process of determining whether to approve a settlement simply substitute one complex, time consuming and expensive litigation for another.” White v. First Am. Registry, Inc., No. 04 Civ. 1611, 2007 WL 703926, at *2 (S.D.N.Y. Mar. 7, 2007). B. Application of the Grinnell Factors Supports" }, { "docid": "14097849", "title": "", "text": "Petroleum Co., 67 F.3d 1072, 1079 (2d Cir.1995) (quoting Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982)). Courts in this circuit typically consider the nine 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 the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000) (internal citations omitted). b. Grinnell Factors Wage and hour cases are not unduly complex. As discussed below in connection with counsel’s fees, even if the area of law is straightforward, class actions are complex. This alone is not relevant because every settlement considered under the Grinnell factors is a class action. But at the time of settlement, Plaintiffs had moved for class certification and Defendants had yet to respond. Litigating that motion, and assuming it would have been successful, continuing with extensive fact and expert discovery and ultimately trial would have entailed significant costs and taken considerable time. The reaction to the settlement has been favorable. As stated, there has been only one opt-out and no objections. “The fact that the vast majority of class members neither objected nor opted out is a strong indication that the proposed settlement is fair, reasonable, and adequate.” Wright v. Stern, 553 F.Supp.2d 387, 345 (S.D.N.Y.2008). In evaluating the stage of the case and the discovery taken, courts attempt to “determine whether counsel had an adequate appreciation of the merits of the case before negotiating.” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d" }, { "docid": "1759858", "title": "", "text": "employee contributions and, therefore, were not entitled to settlement payments. None of these individuals has objected to class counsel’s disallowance of his or her claim. On August 12, 1999, class counsel notified one additional claimant of the Withdrawal Subclass, Mr. Frederick Bender, that his claim was disallowed. After being notified of this disallowance, Mr. Bender has chosen to opt out of the class. See Order of September 14, 1999. As for the claimants in the Military Subclass, defendants notified 18 of such claimants that their claims would be granted and notified the remaining claimants that their claims were denied. The one dispute that arose between defendants and a potential member of the Military Subclass was resolved without court intervention. Fairness of the Settlement “The law favors settlements of class actions no less than of other cases.” In re Gulf Oil/Cities Service Tender Offer Litig., 142 F.R.D. 588, 590 (S.D.N.Y.1992) (citing Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982)). “The central question raised by the proposed settlement of a class action is whether the compromise is fair, reasonable and adequate.” Weinberger, 698 F.2d at 73. Guidelines for evaluating whether the settlement is fair and the class members’ interests adequately protected are well established in this circuit. They include the complexity, expense and likely duration of the underlying litigation; the risks of litigation for all parties; comparison of the proposed settlement with the likely result of litigation; the scope of discovery preceding settlement; the ability of the defendant to satisfy a greater judgment; and the reaction of the class to the settlement. See In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 292 (2d Cir.1992) (citing Weinberger, 698 F.2d at 73-74); In re Warner Communications Securities Litig., 798 F.2d 35, 37 (2d Cir.1986); City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974). The court must also examine the negotiating process that gave rise to the settlement to determine if it was achieved through arms-length negotiations by counsel with the experience and ability to effectively represent the class’s interests. Weinberger, 698 F.2d at 74 (citation omitted). Here, the" }, { "docid": "836419", "title": "", "text": "reasonable and adequate. Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Chatelain v. Prudential-Bache Securities, Inc., 805 F.Supp. 209, 212 (S.D.N.Y.1992). The Second Circuit has identified nine factors that should be considered in determining the fairness of a proposed settlement: (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 the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974) (citations omitted); see also County of Suffolk v. Long Island Lighting Co. (“LILCO”), 907 F.2d 1295, 1323-24 (2d Cir.1990). A. Complexity, Expense and Duration. This court has had the opportunity to consider the complexity of the issues involved in the Freedman-Harris case during the course of briefing and argument of the motion to dismiss, as well as during the many pretrial, status, telephone and settlement conferences conducted by the court. In Quevedo, argument of the motion to dismiss took an entire day in December, 1991. Discovery in both eases had proceeded through interrogatories, requests for admissions and document production, but depositions had barely begun. The litigation has already lasted three years, and further prosecution of either or both of these actions would likely have taken many more weeks of discovery, motions, trial preparation, trial itself, and appeal. Such protracted litigation would undeniably have reduced the recovery and delayed the payment of any judgment to the class members. See, e.g., Chatelain v. Prudential-Bache, supra, 805 F.Supp. at 213; In re Gulf Oil/Cities Service Tender Offer Litigation, 142 F.R.D. 588 (S.D.N.Y.1992). B. Reaction of" }, { "docid": "16508662", "title": "", "text": "to be provided with notice, generated approximately 143,000 claims, and fully complied with the requirements of Rule 23 of the Federal Rules of Civil Procedure and Rule 2002 of the Federal Rules of Bankruptcy Procedure. IV. FAIRNESS, ADEQUACY, AND REASONABLENESS OF THE SETTLEMENT 13. Before giving final approval to a proposed class action settlement, the Court must determine that the settlement is “fair, adequate, and reasonable.” Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 965 (3d Cir.1983). The Third Circuit has identified nine fac tors that a district court should consider when making this determination: “(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 the class action through trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.... ” In re Prudential Ins. Co. of America Sales Practices Litig., 148 F.3d 283, 317 (3d Cir.1998), quoting Girsh v. Jepson, 521 F.2d 153, v157 (3d Cir.1975). These factors are a guide and the absence of one or more does not automatically render the settlement unfair. Rather, the court must look at all the circumstances of the case and determine whether the settlement is within the range of reasonableness under Girsh. Bone Screw, 176 F.R.D. at 184 (citation omitted). A. The Complexity, Expense, and Duration of the Litigation. 14. Many of these cases have been pending for over two and one-half years. They have, collectively, already consumed millions of dollars in attorney time and litigation expenses on both sides. While significant discovery has been conducted, additional work remains to be done to fully prepare the cases for trial. See In re Warner Communications" } ]

[ { "docid": "6865935", "title": "", "text": "no evidence that defendant bank was distinct from its holding company, the enterprise); Nebraska Sec. Bank v. Dain Bosworth Inc., 838 F.Supp. 1362, 1369 (D.Neb.1993) (rejecting the reasoning in Haroco and holding that neither parent nor its wholly owned subsidiary can constitute a § 1962(c) enterprise if the other is named the defendant person); Tucker Freight Lines, Inc., 789 F.Supp. at 893 (rejecting Haroco and granting motion to dismiss because defendant corporation was not distinct from parent, the alleged enterprise). . Plaintiffs also contend that the result they seek is compelled by the Third Circuit's decision in Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258 (3d Cir.1995). In so doing, they misconstrue that opinion. Jaguar Cars holds only that \"corporate officers/employees ... may properly be held liable as persons managing the affairs of their corporation as an enterprise through a pattern of racketeering activity.\" Id. at 261. We note that this conclusion has long been the rule in this circuit. See Liberty Group, 965 F.2d at 886 (noting that employee of partnership may be liable under § 1962(c) for conducting the affairs of the partnership). Plaintiffs contend that the relationship between a subsid-iaty and its parent is analogous to that between officers/employees and a corporation. The analogy fails, however, for the simple reason that corporations can act only through their employees and agents. See Metcalf v. PaineWebber Inc., 886 F.Supp. 503, 514 n. 12 (W.D.Pa.1995) (concluding that the holding in Jaguar Cars cannot be extended to corporate defendants), off'd mem., 79 F.3d 1138 (3d Cir.1996). . Under § 1961(5) a \"pattern of racketeering activity” requires \"at least two acts of racketeering activity.” 18 U.S.C. § 1961(5); see also Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. 3275 (discussing definition of \"pattern of racketeering activity”)." } ]

[ { "docid": "3154542", "title": "", "text": "United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir.1982). As the assoeiation-in-faet pleaded by Khurana is in reality the corporate entity, we must affirm the district court as to its dismissal of these claims against the corporate entities as the distinctiveness requirement is not met in relation to these two defendants. River Region and Innovative cannot simultaneously be both the enterprise and the named defendants. See Securitron, 65 F.3d at 263. Therefore, we conclude that Khurana’s attempt to circumvent the distinction requirement in regard to the corporate defendants by pleading an association-in-fact theory must be rejected. We must also consider the claims in relation to the other named defendants, the officers and employees of the two corporate entities. See, e.g., Banks v. Wolk, 918 F.2d 418, 424 (3d Cir.1990) (leaving RICO action intact against certain individual defendants while dismissing the corporate defendant for failure to withstand distinctiveness requirement); Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1411 (3d Cir.1991) (considering § 1962(c) claim separately for each defendant’s fulfillment of distinctiveness and other requirements). As we explained above, Khurana’s complaint essentially pleads the corporation as the enterprise. Section 1962(c) may impose liability on individual corporate officers and employees who conduct the corporate enterprise which employs them through a pattern of racketeering activity. See Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 266-269 (3d Cir.1995); United States v. Robinson, 8 F.3d 398, 407 (7th Cir.1993); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (9th Cir.1992); Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1280 (7th Cir.1989); McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985); see also Securitron, 65 F.3d at 263. Accordingly, we reverse the dismissal of the remaining § 1962(e)-related claims against the three individual defendants. CONCLUSION For the foregoing reasons, we REVERSE in part and AFFIRM in part. We affirm the district court’s dismissal of Khurana’s claims based on alleged violations of § 1962(c) and § 1962(d) (to the extent they allege conspiracy to violate § 1962(c)) against the two corporate defendants. We also affirm the district court’s dismissal of" }, { "docid": "3154543", "title": "", "text": "other requirements). As we explained above, Khurana’s complaint essentially pleads the corporation as the enterprise. Section 1962(c) may impose liability on individual corporate officers and employees who conduct the corporate enterprise which employs them through a pattern of racketeering activity. See Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 266-269 (3d Cir.1995); United States v. Robinson, 8 F.3d 398, 407 (7th Cir.1993); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (9th Cir.1992); Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1280 (7th Cir.1989); McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985); see also Securitron, 65 F.3d at 263. Accordingly, we reverse the dismissal of the remaining § 1962(e)-related claims against the three individual defendants. CONCLUSION For the foregoing reasons, we REVERSE in part and AFFIRM in part. We affirm the district court’s dismissal of Khurana’s claims based on alleged violations of § 1962(c) and § 1962(d) (to the extent they allege conspiracy to violate § 1962(c)) against the two corporate defendants. We also affirm the district court’s dismissal of all claims alleging injury from “illegal competition.” Additionally, we affirm the district court’s dismissal of Khurana’s claims alleging termination injuries as a result of § 1962(b) and § 1962(c) violations. We reverse the district court’s dismissal of all other claims with directions to reinstate them for further proceedings consistent with this opinion. . Khurana's state law claims were remanded to state court following the district court's Fed. R.Civ.P. 12(b)(6) dismissal of his RICO claims. Only issues related to the dismissal of Khurana's RICO claims are before the panel. . 18 U.S.C. § 1962(b)-(d) is as follows: (b)It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate of foreign commerce. (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or" }, { "docid": "22835379", "title": "", "text": "Productions and also “acting within the scope of his authority.” Id., at 117. Under the Court of Appeals’ analysis, King, in a legal sense, was part of, not separate from, the corporation. There was no “person,” distinct from the “enterprise,” who improperly conducted the “enterprise’s affairs.” And thus § 1962(c) did not apply. Ibid. Other Circuits, applying § 1962(c) in roughly similar circumstances, have reached a contrary conclusion. See, e. g., Brannon v. Boatmen’s First Nat. Bank of Okla., 153 F. 3d 1144, 1148, n. 4 (CA10 1998); Richmond v. Nationwide Cassel L. R, 52 F. 3d 640,647 (CA71995); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F. 3d 258, 265, 269 (CA3 1995); Sever v. Alaska Pulp Corp., 978 F. 2d 1529, 1534 (CA9 1992). We granted certiorari to resolve the conflict. We now agree with these Circuits and hold that the Second Circuit’s interpretation of § 1962(c) is erroneous. We do not quarrel with the basic principle that to establish liability under § 1962(c) one must allege and prove the existence of two distinct entities: (1) a “person”; and (2) an “enterprise” that is not simply the same “person” referred to by a different name. The statute’s language, read as ordinary English, suggests that principle. The Act says that it applies to “person[s]” who are “employed by or associated with” the “enterprise.” § 1962(c). In ordinary English one speaks of employing, being employed by, or associating with others, not oneself. See Webster’s Third New International Dictionary 132 (1993) (defining “associate”); id., at 743 (defin ing “employ”). In addition, the Act’s purposes are consistent with that principle. Whether the Act seeks to prevent a person from victimizing, say, a small business, S. Rep¿ No. 91-617, p. 77 (1969), or to prevent a person from using a corporation for criminal purposes, Rational Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 259 (1994), the person and the victim, or the person and the tool, are different entities, not the same. The Government reads § 1962(c) “to require some distinctness between the RICO defendant and the RICO enterprise.”" }, { "docid": "402046", "title": "", "text": "scheme with such an expectation, however. Morken received the profits of the scheme after paying all expenses, including the promised 25% annualized return to the financiers/investors, if indeed there were any profits to be had merely from the sale of cattle. Morken could expect that his profits would be increased the more successful were his efforts. However, the investors were insulated from all of these concerns by the guaranteed flat return even if Morken did nothing. . Because the court dismissed the previous version of plaintiffs' RICO claim pursuant to Reves v. Ernst & Young, 494 U.S. 56, 110 S.Ct. 945, 108 L.Ed.2d 47 (1990), having concluded that the defendants had only been alleged to have provided services to Morken's RICO enterprise, it is pertinent to note, as did the Third Circuit Court of Appeals, the possibility of redefining the enterprise to save RICO claims: Commentators have observed that the plaintiffs in Reves could possibly have satisfied the operation and management requirement of § 1962(c) had they alleged the existence of another enterprise. In Reves the enterprise was the Co-op, but this is not the only possibility. Section 1961(4) defines enterprise as including any \"legal entity” ... and “any union or group of individuals associated in fact although not a legal entity.” ... Thus, RICO's enterprise requirement can be satisfied by “a group of individuals associated in fact” even though not a distinct “legal entity.” What if the plaintiff in Reves had alleged that an association in fact consisting of Arthur Young, Jack White [the Co-op’s General Manager], and the Co-op constituted the racketeering enterprise, and that Arthur Young directed the affairs of this \"enterprise?” See Daniel B. Fischel & Alan O. Sykes, Civil RICO after Reves: An Economic Commentary, 1993 SUP.CT.REV. 193-94 (footnote omitted). Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 266 n. 5 (3d Cir.1995). Perhaps plaintiffs here have taken this leaf from the Third Circuit's, or more properly, Fischel's and Sykes's, book by repleading the RICO enterprise in the manner now presented. In any event, this court must now answer the question" }, { "docid": "6826895", "title": "", "text": "but did not include more than the vaguest allusions to the acquisition or maintenance of any interest in or control of the alleged enterprise. Moreover, although Wagh maintains that he is able to amend his pleadings to state a claim under § 1962(b), he has given no indication — either in argument before the district court, or in his briefs to this court — what additional details he could provide without discovery. Given the length of time that Wagh has alleged a violation of the RICO statute (albeit a different section), and the paucity of facts that would establish the bare bones of his claim, we conclude that the district court did not abuse its discretion in dismissing Wagh’s § 1962(b) claim without granting leave to amend. C. Wagh’s § 1962(c) claim 18 U.S.C. § 1962(c) provides in relevant part: It shall be unlawful for any person employed by or associated with any enterprise ... to conduct or participate ... in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. “For the purposes of section 1962(c), RICO plaintiffs must allege a defendant— the ‘person’ or ‘persons’ — who is distinct from the enterprise whose business the defendant is conducting.” Sever v. Alaska Pulp Corp., 978 F.2d 1529 (9th Cir.1992). The term “enterprise” is defined in the statute as (1) “any individual, partnership, corporation, association, or other legal entity” and (2) “any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4) (West 2008). Wagh’s only theory of enterprise on appeal is that the defendants-appellees, two of their employees, and Citibank together constitute the enterprise. He therefore alleges that these corporations and individuals have formed an association in fact. Under this Circuit’s interpretation of the enterprise element, “the predicate acts of racketeering activity, by themselves, do not satisfy the RICO enterprise element.” Chang v. Chen, 80 F.3d 1293, 1299 (9th Cir.1996) (discussing the minimum requirements for an associated-in-fact enterprise). A RICO plaintiff must allege a structure for the making of decisions separate and apart from the" }, { "docid": "17911564", "title": "", "text": "and (4) fails to plead that a. RICO violation caused injury to plaintiffs’ business or property. a. Enterprise “Enterprise” is defined in the RICO statute to include “any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C.A. § 1961(4). The term “person” includes “any individual or entity capable of holding a legal or beneficial interest in property.” 18 U.S.C.A. § 1961(3). In United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981), the Supreme Court explained that an enterprise is a “group of persons associated together for a common purpose or engaging in a common course of conduct ... [It is] proved by evidence of an ongoing organization, formal or informal, and by any evidence that the various associates function as a continuing unit.” Courts in the Second Circuit should look to the “hierarchy, organization, and activities” of an association-in-fact to determine whether “its members functioned as a unit.” United States v. Coonan, 938 F.2d 1553, 1560-61 (2d Cir.1991), cert. denied, 503 U.S. 941, 112 S.Ct. 1486, 117 L.Ed.2d 628 (1992). For an association of individuals to constitute an enterprise, the individuals must “share a common purpose to engage in a particular fraudulent course of conduct and work together to achieve such purposes.” Moll v. U.S. Life Title Ins. Co., 654 F.Supp. 1012, 1031 (S.D.N.Y.1987). For purposes of § 1962(c), the Second Circuit requires that the alleged racketeering enterprise be distinct from the persons who participate in it. See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir.1994). The complaint alleges the “enterprise” to consist of “Misk, Rizk, various other individuais and their various related companies.” The purpose of the enterprise is alleged to be engaging in “massive and ongoing illegal activities affecting interstate and international commerce.” Compl. ¶ 9. It should be noted that although MDL is named as a defendant, it is not included as a member of the enterprise as above defined. In ¶ 130 of the complaint, however, it" }, { "docid": "21410551", "title": "", "text": "Again, because Zastrow's RICO claim fails even assuming that Mercedes Greenway's “threat” would be indictable under § 1503, we need not determine whether the alleged offending phone call would rise to the level of obstruction of justice. . The RICO statute defines an enterprise as \"any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). . Zastrow also summarily states that “[Mercedes] Greenway fits the definition of an enterprise on its own.” However, § 1962(c) \"requires that the RICO person be distinct from the RICO enterprise,” St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 445 (5th Cir.2000), and thus Zastrow could not proceed against the dealership if it alone is the enterprise. To the extent that Zastrow would be content to continue on against Kurisky and his law firm, he would be unable to do so because — in addition to the litany of other reasons described above — they did not \"participate in the operation or management of the enterprise.” Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (\"[W]e hold that 'to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs,’ § 1962(c), one must participate in the operation or management of the enterprise itself.”); see RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 682 F.3d 1043, 1051 n. 7 (D.C.Cir.2012) (stating that \"[t]he circuit courts of appeals have declined to extend RICO liability under § 1962(c) to an attorney's provision of routine legal services” and listing cases). . The district court also granted summary judgment on Zastrow's Title VII retaliation claim. Because he has not briefed the issue, it is waived. Atwood v. Union Carbide Corp., 847 F.2d 278, 280-81 (5th Cir.1988) (per cu-riam). In any case, it should be obvious that Zastrow has no Title VII claim because neither he nor the plaintiffs in the underlying arbitration were employees of Mercedes Greenway and there were no Title VII proceedings. . At oral argument, defendants" }, { "docid": "17479690", "title": "", "text": "that comprise the defendants’ corporate family. When we look to the other circuits, we find little direct guidance, but we do find substantial indications that to impose liability on a subsidiary for conducting an enterprise comprised solely of the parent of the subsidiary and related businesses would be to misread the statute. Ten other circuits require that the person and enterprise be distinct. Most of these circuits have suggested some limits on when related business entities, or business entities and their employees, may serve as both the person and enterprise under § 1962(c). See, e.g., Bachman v. Bear, Stearns & Co., 178 F.3d 930, 932 (7th Cir.1999); Brannon v. Boatmen’s First National Bank, 153 F.3d 1144, 1146-47 (10th Cir.1998);Compagnie De Reassurance D’Ile De France v. New England Reinsurance Corp., 57 F.3d 56, 92 (1st Cir.1995); Davis v. Mutual Life Ins. Co., 6 F.3d 367, 377 (6th Cir.1993), cert. denied, 510 U.S. 1193, 114 S.Ct. 1298, 127 L.Ed.2d 650 (1994); NCNB Nat’l Bank v. Tiller, 814 F.2d 931, 936 (4th Cir.1987), overruled on other grounds by Busby, 896 F.2d at 841-42; Atkinson v. Anadarko Bank & Trust Co., 808 F.2d 438, 440-41 (5th Cir.) (per curiam), cert. denied, 483 U.S. 1032, 107 S.Ct. 3276, 97 L.Ed.2d 780 (1987). Much of the controversy among these circuits concerns whether officers or employees of an entity may conduct an enterprise consisting of the employing entity. Compare, e.g., Jaguar Cars Inc. v. Royal Oaks Motor Co., 46 F.3d 258, 268-69 (3d Cir.1995) (stating the distinctiveness requirement is satisfied with allegations of “conduct by officers or employees who operate or manage a corporate enterprise”); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (9th Cir.1992) (determining that employees may conduct their employer as a RICO enterprise), with Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 344-45 (2d Cir.1994) (stating that a group allegedly consisting of a corporation and two of its employees could not “conduct” the corporation itself as the RICO enterprise). The plaintiffs have not claimed that any employees or officers of RAC were the persons conducting the RICO enterprise, however, so we" }, { "docid": "17479689", "title": "", "text": "corporate structure. See id. A corporation such as THORN Americas or TEMINAH may serve as a “person” for purposes of RICO § 1962(c). See 18 U.S.C. § 1961(3) (1994) (defining “person” as including “any individual or entity capable of holding a legal or beneficial interest in property”); see also Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 995 (8th Cir.1989) (involving a RICO enterprise allegedly conducted by two corporate persons). An association of business entities such as RAC also may serve as an “enterprise.” See United Healthcare, 88 F.3d at 570; Atlas Pile Driving, 886 F.2d at 995 n. 7. In this case, however, the plaintiffs allege that the RICO enterprise consists solely of wholly owned, related business entities, and that some of the wholly owned subsidiaries conducted the racketeering activities for the enterprise. This Court has not previously considered whether the § 1962(c) distinctiveness requirement may be satisfied when wholly owned subsidiaries are the persons who conduct a RICO enterprise consisting only of the parent company and other related business entities that comprise the defendants’ corporate family. When we look to the other circuits, we find little direct guidance, but we do find substantial indications that to impose liability on a subsidiary for conducting an enterprise comprised solely of the parent of the subsidiary and related businesses would be to misread the statute. Ten other circuits require that the person and enterprise be distinct. Most of these circuits have suggested some limits on when related business entities, or business entities and their employees, may serve as both the person and enterprise under § 1962(c). See, e.g., Bachman v. Bear, Stearns & Co., 178 F.3d 930, 932 (7th Cir.1999); Brannon v. Boatmen’s First National Bank, 153 F.3d 1144, 1146-47 (10th Cir.1998);Compagnie De Reassurance D’Ile De France v. New England Reinsurance Corp., 57 F.3d 56, 92 (1st Cir.1995); Davis v. Mutual Life Ins. Co., 6 F.3d 367, 377 (6th Cir.1993), cert. denied, 510 U.S. 1193, 114 S.Ct. 1298, 127 L.Ed.2d 650 (1994); NCNB Nat’l Bank v. Tiller, 814 F.2d 931, 936 (4th Cir.1987), overruled on other grounds by" }, { "docid": "9813320", "title": "", "text": "agree to a binding estimate, you are responsible for paying the charges due by cash, certified check, traveler’s check, or bank check (one drawn by a bank on itself and signed by an officer of the bank) at time of delivery unless the mover agrees before you move to extend credit or to accept payment by charge card. If you are unable to pay at the time the shipment is delivered, the mover may place your shipment in storage at your expense until the charges are paid. (Id.) . Those individuals are: Richard Stevens, Jan Figa, Marc Reece, Marilyn Lapka, Craig Pietrowiak, Michael Daniels, Peter and Christine Lucke, Mitchell McCloskey, Alan Gross, Marilyn Rankin, Richard Feasel, Cheryl Car-lucci, Bassel Nabelssi, Renee Vonderhaar, Ed Hershey, Kavita Amar and Beverly Place. (Id.) . \"[Enterprise,” as defined in the statute, \"includes any individual, partnership, corporation, association, or other legal entity....” 18 U.S.C. § 1961(4). The Seventh Circuit has characterized a RICO enterprise as \"an ongoing 'structure' of persons associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision-making.” Richmond, 52 F.3d at 644 (quoting Jennings v. Emry, 910 F.2d 1434, 1440 (7th Cir.1990)). . Although the ''distinctiveness” analysis set forth by the Third Circuit in Brittingham was subsequently called into question by that Circuit’s holding in Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258 (3d Cir.1995), courts in this District have continued to rely on the Brittingham analysis because it was expressly accepted by the Seventh Circuit in Richmond, notwithstanding the Jaguar Cars decision. See Fitzgerald v. Chrysler Corp., No. 96 C 0021, 1996 WL 473456 at *5 n. 5 (N.D.Ill. Aug. 16, 1996) (Marovich, J.); Ewing v. Midland Finance Company, No. 96 C 222, 1997 WL 627644 at *5 (N.D.Ill. Sept. 26, 1997) (Manning, J.). . The family resemblance test has been used in this Circuit to resolve the \"definitional complexities” of the word \"pattern” in RICO. Fujisawa Pharm. Co., Ltd. v. Kapoor, 115 F.3d 1332, 1338 (7th Cir. 1997); see also Shapo v. O’Shaughessy, 246 F.Supp.2d 935, 959 (N.D.Ill.2002). ." }, { "docid": "13696792", "title": "", "text": "by Vitalink, which was given to the plaintiffs by Manor Care along with their residence contract. These identical documents were given to every member of the plaintiff class, so we need not be concerned about the possibility of uncertainty regarding which employees said what to whom. At this stage of the game, we do not believe that the failure to identify particular employee participants has denied the defendants their right to be reasonably “appraised of the roles they each played in the scheme,” id. at 1329, so we conclude that Rohlfing’s complaint passes muster under Rule 9(b). b. the “enterprise” and “person” requirements The defendants’ second objection to Rohlfing’s RICO claims is that he has failed to allege an “enterprise” as the statute requires. See 18 U.S.C. §§ 1962(a), (b), (c); Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995) (“A RICO complaint must identify the enterprise.”). To this objection, the defendants append the related argument that Rohlfing has failed to allege a “person” distinct from the enterprise. See Haroco v. American Nat'l Bank & Trust Co., 747 F.2d 384, 402 (7th Cir.1984) (§ 1962(c) requires “some separate and distinct existence for the person and the enterprise”), aff'd, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). We disagree. The statute defines an “enterprise” as any “individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact....” 18 U.S.C. § 1961(4). In elaborating on this statutory theme, the Seventh Circuit has characterized an enterprise as an “ ‘ongoing structure of persons associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision-making.’” Richmond 52 F.3d at 644 (quoting Jennings v. Emry, 910 F.2d 1434, 1440 (7th Cir.1990)). Rohlfing proposes a number of different enterprises, consisting of various combinations of the members of the “Manor Care corporate group consisting of Manor Care and all its subsidiaries.” Compl. 111166, 77. Under the plain language of the statute as well as the characterization in Richmond, these ongoing, structured, corporate entities clearly qualify as “enterprises.” The defendants focus" }, { "docid": "8734062", "title": "", "text": "claims. The district court upheld the jury’s award in response to the defendants’ post-trial motions for judgment as a matter of law under Fed.R.Civ.Proc. 50(a) or for a new trial under Fed.R.Civ.Proc. 59. This appeal from the judgment and from the district court’s order denying the defendants’ post-trial motions followed. II. The defendants contend that Jaguar’s RICO claims were legally insufficient in that Jaguar failed to allege a violation of § 1962(c) by “persons” operating or managing a distinct “enterprise.” Since this is a question of law, we exercise plenary review. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993). Section 1962(c) provides, in relevant part: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.... 18 U.S.C.A. § 1962(c) (1984). It is uncontested, on appeal, that Royal Oaks conducted “a pattern of racketeering activity” which affected interstate commerce. Given that § 1962(c) requires conduct by a “person employed by or associated with any enterprise,” the issue is whether Jaguar has alleged activity by both a person and an enterprise. “Person” includes “any individual or entity capable of holding a' legal or beneficial interest in property.” 18 U.S.C.A. § 1961(3) (1984). “Enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C.A. § 1961(4) (1984). A. This court first addressed § 1962(c)’s requirement to plead persons distinct from an enterprise in Hirsch v. Enright Refining Co., 751 F.2d 628, 633 (3d Cir.1984). In Enright, a jewelry manufacturer brought an action alleging fraudulent misrepresentation and a corresponding violation of § 1962(c) against a lone defendant — a corporation engaged in metal refining. In Enright we concluded that the defendant corporation could not be liable under § 1962(c) in that “the ‘person’ subject to liability cannot be the same entity as the ‘enterprise.’” Id. at 633." }, { "docid": "22835378", "title": "", "text": "allegations in the complaint are true, we conclude that the “person” and “enterprise” here are distinct and that the RICO provision applies. Petitioner, Cedric Kushner Promotions, Ltd., is a corporation that promotes boxing matches. Petitioner sued Don King, the president and sole shareholder of Don King Productions, a corporation, claiming that King had conducted the boxing-related affairs of Don King Productions in part through a RICO “pattern,” i. e., through the alleged commission of at least two instances of fraud and other RICO predi cate crimes. The District Court, citing Court of Appeals precedent, dismissed the complaint. Civ. No. 98-6859,1999 WL 771366, *3-4 (SDNY, Sept. 28, 1999). And the Court of Appeals affirmed that dismissal. 219 F. 3d 115 (CA2 2000) (per curiam). In the appellate court’s view, § 1962(c) applies only where a plaintiff shows the existence of two separate entities, a “person” and a distinct “enterprise,” the affairs of which that “person” improperly conducts. Id., at 116. In this instance, “it is undisputed that King was an employee” of the corporation Don King Productions and also “acting within the scope of his authority.” Id., at 117. Under the Court of Appeals’ analysis, King, in a legal sense, was part of, not separate from, the corporation. There was no “person,” distinct from the “enterprise,” who improperly conducted the “enterprise’s affairs.” And thus § 1962(c) did not apply. Ibid. Other Circuits, applying § 1962(c) in roughly similar circumstances, have reached a contrary conclusion. See, e. g., Brannon v. Boatmen’s First Nat. Bank of Okla., 153 F. 3d 1144, 1148, n. 4 (CA10 1998); Richmond v. Nationwide Cassel L. R, 52 F. 3d 640,647 (CA71995); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F. 3d 258, 265, 269 (CA3 1995); Sever v. Alaska Pulp Corp., 978 F. 2d 1529, 1534 (CA9 1992). We granted certiorari to resolve the conflict. We now agree with these Circuits and hold that the Second Circuit’s interpretation of § 1962(c) is erroneous. We do not quarrel with the basic principle that to establish liability under § 1962(c) one must allege and prove the existence" }, { "docid": "11790853", "title": "", "text": "Defendants, Plaintiffs here have identified the individuals that make up the enterprise. They include: (1) Countrywide, including its LandSafe loan closing services subsidiaries, and (2) Mid Atlantic Capital, One Source Mortgage, and other mortgage brokers not named as defendants herein who have contracts with Countrywide pursuant to which they sell, arrange, promote, or otherwise assist Countrywide in directing borrowers into loans issued by Countrywide. (CAC at 51.) This is more specific than simply identifying “unnamed car dealers,” see Richmond v. Nationwide Cassel, L.P., 52 F.3d 640, 645 (7th Cir.1995), or “secondary lenders.” See VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696, 700 (6th Cir.2000). Thus, Plaintiffs’ allegations about the Broker Enterprise are sufficient. ii. The Countrywide Enterprise In addition to alleging the existence of the Broker Enterprise, Plaintiffs allege the existence of an alternative Countrywide Enterprise. They allege, based on their current knowledge, “the following persons constitute a group of individuals associated in fact that will be referred to herein as the ‘Countrywide Enterprise’: (1) Countrywide and (2) Countrywide’s subsidiaries, including its LandSafe loan closing services subsidiaries.” (CAC at 52.) Defendants assert these allegations are insufficient because a parent corporation and its subsidiaries cannot legally constitute a RICO enterprise. Plaintiffs disagree. Relying on the text of § 1962(c), courts have consistently held that “the ‘person’ must be a separate and distinct entity from the ‘enterprise.’ ” Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1396 (9th Cir.1986). Although the Ninth Circuit has not decided whether a parent and its subsidiary satisfies this distinctiveness requirement, other circuits have decided that these entities generally are not sufficiently distinct. See Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 934 (7th Cir.2003); Bessette v. Avco Financial Services, Inc., 230 F.3d 439, 449 (1st Cir.2000); Fogie v. THORN Americas, Inc., 190 F.3d 889, 898 (8th Cir.1999); Lorenz v. CSX Corp., 1 F.3d 1406, 1412 (3d Cir.1993). These courts recognize that the parent and its subsidiary are separate legal entities. However, they also acknowledge that “a subsidiary that simply conducts its affairs as delegated by the parent company for the" }, { "docid": "18076510", "title": "", "text": "v. Nationwide Cassel, L.P., 52 F.3d 640, 645 (7th Cir.1995); Jennings v. Emry, 910 F.2d 1434, 1439-40 (7th Cir.1990). “Enterprise” as defined in the statute includes “any individual, partnership, corporation, association, or other legal entity.” 18 U.S.C. § 1961(4). The Seventh Circuit has elaborated on this formulation, characterizing an enterprise as “an ongoing structure of persons associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision-making.” Richmond, 52 F.3d at 644 (citation and internal quotations omitted). The enterprises in Count I, NC and the corporate group it heads, easily meet this requirement — they fall squarely within the statute’s plain language as “corporation[s]” and meet Richmond’s continuity and structural requisites as well. See Rohlfing v. Manor Care, Inc., 172 F.R.D. 330, 348 (N.D.Ill.1997) (enterprises “consisting of Manor Care and all its subsidiaries” are “ongoing, structured, corporate entities” under the “plain language of the statute” and Richmond), Butler v. Platte Valley Mortgage Corp., 1995 WL 875412, at *3 (N.D.Ill. Oct.25, 1995) (corporate-group enterprise with parent corporation at the top adequately pled an enterprise). The contested questions are whether these enterprises are “distinct” from the RICO person — Norwest—and whether Norwest exercised sufficient control over their affairs. B. Norwest is Distinct from NC and the Corporate Group Section 1962(c) requires the liable RICO “person” to be an entity separate from the enterprise whose affairs it conducts. Haroco, Inc. v. American Nat’l Bank & Trust Co., 747 F.2d 384, 400 (7th Cir.1984). Termed the “distinctness” requirement, this proposition is alive and well in the Seventh Circuit, see Emery v. American General Finance, Inc., 134 F.3d 1321, 1323-25 (7th Cir. 1998), despite having come under fire in other jurisdictions, see Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 265 (3d Cir.1995). It requires the RICO person and the corporate entities in the enterprise to have “each played a distinct role within the purported scheme.” Ewing v. Midland Finance Co., 1997 WL 627644, at *4 (N.D.Ill. Sept.26, 1997) (citations omitted). The Seventh Circuit adopted the distinctness requirement in Haroco, Inc. v. American Nat’l Bank" }, { "docid": "401977", "title": "", "text": "argue, there is no enterprise distinct from the “RICO person” in the second phase alleged to have conducted the enterprise. i. Association-in-fact enterprises. An “enterprise” is defined by RICO to include any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity [.] 18 U.S.C. § 1961(4). Thus, “[t]he RICO Act encompasses two kinds of enterprises: legal entities, and ‘associations in fact.’ ” Bennett v. Berg, 685 F.2d 1053, 1060 n. 9 (8th Cir.1982) (citing United States v. Turkette, 452 U.S. 576, 581-82, 101 S.Ct. 2524, 2527-28, 69 L.Ed.2d 246 (1981)); United States v. Snider, 720 F.2d 985, 988 n. 2 (8th Cir.1983) (under § 1961(4) of RICO, two kinds of enterprises are defined, the second of which is an “association in fact,” citing United States v. Lemm, 680 F.2d 1193, 1198 (8th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 960 (1983)); see also Libertad v. Welch, 53 F.3d 428, 441 (1st Cir.1995) (“There are, therefore, two types of [RICO] enterprises [under § 1961(4) ]: legal entities and associations-in-fact,” citing Turkette); Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 644 (7th Cir.1995) (two kinds of entities under § 1961(4)); Crowe v. Henry, 43 F.3d 198, 204 (5th Cir.1995) (“A RICO enterprise can be either a legal entity or an association-in-fact.”); Aetna Cas. & Surety Co. v. P & B Autobody, 43 F.3d 1546, 1557 (1st Cir.1994) (distinguishing between “legal entity” enterprise and “assoeiation-in-fact” enterprise); United States v. Blandford, 33 F.3d 685, 703 (6th Cir.1994) (“Under § 1961(4), ‘associations in fact’ also are deemed enterprises.”), cert. denied, — U.S. -, 115 S.Ct. 1821, 131 L.Ed.2d 743 (1995). Whichever form of enterprise is alleged, the plaintiff must show both an “enterprise” and a “pattern of racketeering activity.” Turkette, 452 U.S. at 580-81, 101 S.Ct. at 2527-28; Libertad, 53 F.3d at 441; Blandford, 33 F.3d at 702-03; Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir.1993). In Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir.1989), the Eighth Circuit Court of Appeals" }, { "docid": "18076509", "title": "", "text": "Through this activity, Norwest conducted the affairs of two “enterprises”: (1) NC, its indirect parent corporation, and (2) the entire corporate group headed by NC. Id. ¶ 43. The John Does conducted the affairs of three enterprises through this activity: (1) Norwest, (2) NC, and (3) the corporate group headed by NC. Id. ¶ 55. Plaintiffs allege that the income Norwest derives from imposing the allegedly unauthorized property inspection and proof of claim fees benefitted the enterprises: it was “up-streamed to [NC], and was reported on [NC’s] financial statements.” ’ Id. ¶ 11. These financial statements provided the basis for NC to raise capital in public 'securities markets — capital that NC used to fund the operations of Norwest and the entire corporate group. Id. We find that these allegations are sufficient to maintain the RICO claim in Count I, but not in Count II. We address each Count in turn. II. Count I — Plaintiffs’ RICO Cláim Against Norwest A. The Complaint Identifies the Enterprise First, a RICO complaint must identify the enterprise. Richmond v. Nationwide Cassel, L.P., 52 F.3d 640, 645 (7th Cir.1995); Jennings v. Emry, 910 F.2d 1434, 1439-40 (7th Cir.1990). “Enterprise” as defined in the statute includes “any individual, partnership, corporation, association, or other legal entity.” 18 U.S.C. § 1961(4). The Seventh Circuit has elaborated on this formulation, characterizing an enterprise as “an ongoing structure of persons associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision-making.” Richmond, 52 F.3d at 644 (citation and internal quotations omitted). The enterprises in Count I, NC and the corporate group it heads, easily meet this requirement — they fall squarely within the statute’s plain language as “corporation[s]” and meet Richmond’s continuity and structural requisites as well. See Rohlfing v. Manor Care, Inc., 172 F.R.D. 330, 348 (N.D.Ill.1997) (enterprises “consisting of Manor Care and all its subsidiaries” are “ongoing, structured, corporate entities” under the “plain language of the statute” and Richmond), Butler v. Platte Valley Mortgage Corp., 1995 WL 875412, at *3 (N.D.Ill. Oct.25, 1995) (corporate-group enterprise with parent corporation at the top" }, { "docid": "6826896", "title": "", "text": "of unlawful debt. “For the purposes of section 1962(c), RICO plaintiffs must allege a defendant— the ‘person’ or ‘persons’ — who is distinct from the enterprise whose business the defendant is conducting.” Sever v. Alaska Pulp Corp., 978 F.2d 1529 (9th Cir.1992). The term “enterprise” is defined in the statute as (1) “any individual, partnership, corporation, association, or other legal entity” and (2) “any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4) (West 2008). Wagh’s only theory of enterprise on appeal is that the defendants-appellees, two of their employees, and Citibank together constitute the enterprise. He therefore alleges that these corporations and individuals have formed an association in fact. Under this Circuit’s interpretation of the enterprise element, “the predicate acts of racketeering activity, by themselves, do not satisfy the RICO enterprise element.” Chang v. Chen, 80 F.3d 1293, 1299 (9th Cir.1996) (discussing the minimum requirements for an associated-in-fact enterprise). A RICO plaintiff must allege a structure for the making of decisions separate and apart from the alleged racketeering activities, because “the existence of an enterprise at all times remains a separate element which must be proved.” Id. (citing U.S. v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)). In this ease, Wagh has not alleged a decision-making structure for the enterprise “beyond that which was inherent in the alleged acts of racketeering activity.” Id. at 1300. See also Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1083 (9th Cir.2000) (“[A] group does not constitute an enterprise unless it exists independently from the racketeering activity in which it engages.”). As the district court noted in its second order granting Metris Direct’s motion to dismiss, The basis of [Wagh’s] allegation is apparently that “a normal credit card transaction” between Defendants, Citibank, and [Wagh] is an action sufficient to satisfy the criminal enterprise requirement. Again, however, Plaintiff has failed to meet the enterprise requirements established by the Ninth Circuit in presenting this theory of enterprise. Plaintiff has not alleged that Defendants and Citibank have established a system of making decisions" }, { "docid": "21087114", "title": "", "text": "with an “ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity,” see United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.) (internal quotation marks omitted), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982); and (3) the enterprise was not distinct from London himself. We do not find these arguments convincing. London’s first argument is legal. The RICO statute states that the term “ ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). London contends that, under a plain reading of this provision, an assoeiation-in-fact RICO enterprise such as the one alleged here must be an association of individuals, and cannot include legal entities. London’s argument has been addressed to a number of circuit courts, and each has rejected it. See, e.g., United States v. Console, 13 F.3d 641, 652 (3d Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1660, 128 L.Ed.2d 377 (1994); United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir.1993); Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 995 n. 7 (8th Cir.1989); United States v. Perholtz, 842 F.2d 343, 352-53 (D.C.Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). And we recently indicated, without explicitly considering the issue, that an association between two legal entities and two individuals can constitute a RICO enterprise. See Libertad v. Welch, 53 F.3d 428, 444 (1st Cir.1995). Today we make explicit what we implied in Libertad: two or more legal entities can form or be part of an association-in-fact RICO enterprise. We think the Perholtz panel explained why rather well: [RICO] defines “enterprise” as including the various entities specified; the list of entities is not meant to be exhaustive. “There is no restriction upon the associations embraced by the definition....” United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). On the contrary, Congress has instructed us to construe RICO “liberally ... to effectuate its" }, { "docid": "17479691", "title": "", "text": "Busby, 896 F.2d at 841-42; Atkinson v. Anadarko Bank & Trust Co., 808 F.2d 438, 440-41 (5th Cir.) (per curiam), cert. denied, 483 U.S. 1032, 107 S.Ct. 3276, 97 L.Ed.2d 780 (1987). Much of the controversy among these circuits concerns whether officers or employees of an entity may conduct an enterprise consisting of the employing entity. Compare, e.g., Jaguar Cars Inc. v. Royal Oaks Motor Co., 46 F.3d 258, 268-69 (3d Cir.1995) (stating the distinctiveness requirement is satisfied with allegations of “conduct by officers or employees who operate or manage a corporate enterprise”); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (9th Cir.1992) (determining that employees may conduct their employer as a RICO enterprise), with Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 344-45 (2d Cir.1994) (stating that a group allegedly consisting of a corporation and two of its employees could not “conduct” the corporation itself as the RICO enterprise). The plaintiffs have not claimed that any employees or officers of RAC were the persons conducting the RICO enterprise, however, so we need not address this issue. But we must consider whether a subsidiary may be sufficiently distinct from its parent or other related subsidiaries so as to satisfy § 1962(c)’s distinctiveness requirement. We believe it cannot. A parent company and a subsidiary are separate legal entities, but this is not enough. Nor is it enough that the parent and subsidiary corporations have different roles in the alleged enterprise, as would be typical of every parent-subsidiary relationship. Rather, there must be a greater showing that the parent and subsidiary are distinct than the mere fact that they are separate legal entities. To conclude otherwise would be to read the distinctiveness requirement out of RICO. Turning our attention to the present-case, the plaintiffs have not shown sufficient distinctiveness between THORN Americas; TEMINAH; THORN EMI, pic; or any of the other related business entities that allegedly comprise the RAC enterprise. All these entities are part of one corporate family operating under common control. Therefore, we affirm the District Court’s granting of summary judgment to the defendants on the plaintiffs’" } ]

[ { "docid": "2020126", "title": "", "text": "were erroneously admitted in evidence because he was not given sufficient Miranda warnings and that his sentence was based on improper considerations. Following a pretrial suppression hearing, the court found that, after Miller had been arrested, handcuffed and placed in a government vehicle, a government agent advised him that “[h]e had a right to remain silent, anything he said can and would be jised in a court of law, that he had a right to an attorney, if he could not afford an attorney, an attorney would be appointed for him by the court.” Miller stated that he understood his rights. The government agent admitted at the suppression hearing that he had not expressly informed Miller that he had a right to have an attorney present before any questioning began. After the warnings stated above had been given to Miller at BNDD headquarters, he made certain incriminating statements to the agent. The court, relying upon United States v. Lamia, 429 F.2d 373, 376-77 (2 Cir.), cert. denied, 400 U.S. 907 (1970), held that these statements had been voluntarily given and were admissible. Miller contends that because the warnings given him departed from those prescribed in Miranda v. Arizona, 384 U.S. 436, 467-79 (1966), his statements were inadmissible. We disagree. We hold on the particular facts of this case that Miller was adequately informed of his right to counsel and that the Miranda warnings were sufficient. We have held that “words of Miranda do not constitute a ritualistic formula which must be repeated without variation”, but that “ [w] ords which convey the substance of the warning along with the required information are sufficient.” United States v. Vanterpool, 394 F.2d 697, 698-99 (2 Cir. 1968). In United States v. Lamia, supra, 429 F.2d at 376, defendant was told that he had the “right to an attorney” and if he was not able to afford an attorney one would be appointed by the court. On appeal Lamia contended, as Miller does here, “that this warning did not apprise him that he had the right to the ‘presence’ of an attorney during questioning.”" } ]

[ { "docid": "22049203", "title": "", "text": "of that opinion might suggest and a willingness to import a greater degree of flexibility in the application of Miranda to varying factual situations. We have concluded that a waiver of rights under Miranda can occur despite an earlier demand to have an attorney. Although the Hodge decision is terse, we believe that the result reached in that decision is consistent with the willingness to import a greater degree of flexibility and realism in the application of Miranda, which has been recently evidenced in the decision of the Supreme Court in Mosley and the decision of this Court in Davis. The Government, of course, bears a “heavy burden * * * to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1620. Our examination of the record in this case has revealed that the decision regarding waiver was a close one; yet, on balance, we believe that the district court was correct in deciding that the Government had met its “heavy burden” in establishing Pheaster’s waiver. Because it was not possible for the F.B.I. agents who arrested Pheaster to provide him with an attorney at the moment that he demanded one, the key question is whether the failure of the agents to sit mute during the ride to county jail, where an attorney could be provided, mandates the exclusion of Pheaster’s statements. On the particular facts of this case, we are convinced that such exclusion was not mandated. This conclusion would have been significantly easier had there been an express waiver of rights but the absence of such a waiver is not determinative, for this Court has held that in appropriate circumstances a waiver of Miranda rights can be implied rather than express. United States v. Hilliker, 436 F.2d 101, 103 (9 Cir.), cert. denied, 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971); see also United States v. Vigo, 487 F.2d 295, 299 (2 Cir. 1973) (statement after defective Miranda warning held to be volunteered). Although this question" }, { "docid": "22049264", "title": "", "text": "believe that waiver is possible in either situation. . One of the district court’s grounds for holding that Pheaster’s statements were admissible was the finding that the statements were volunteered and not the result of custodial interrogation. There can be no doubt that Pheaster was in custody at the time of his statements, so the key word in the district court’s finding was “interrogation”. As stated in the text, the conelusion that interrogation had not begun is consistent with the analysis in Hodge and Davis. In the instant case it could be argued that there was an element of interrogation. The F.B.I. agent in charge of Pheaster’s arrest testified that, because of his concern for the safety of the kidnap victim, he did ask Pheaster approximately three times where Larry Adell was being kept. In the context of this case and in light of the agent’s justifiable concern for the safety of Larry Adell, we find that these questions were reasonable and did not rise to the level of interrogation proscribed by Miranda. . Pheaster analogizes his case to United States v. Fowler, 439 F.2d 133 (9 Cir. 1971), in which we held that a “pretrial photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.” Id. at 133. In a prosecution for smuggling marijuana across the border, the defendant’s defense was that he had driven the car across the border as a favor to a man named Ellis without knowing that the marijuana was hidden in the car. Having established that the car had been purchased in Los Angeles several days before, the police continued their investigation in the following manner: “After having arrested Fowler and placed him in custody, the investigating officers ultimately went to the used car lot where the car had been purchased. They spoke with the car salesman, Valencio, and showed him two photographs of Fowler, taken on the night of his arrest. No other photographs were displayed. The salesman indicated that the man pictured was the one who had bought the car in the name of" }, { "docid": "22617543", "title": "", "text": "Justice, stayed the execution of the mandate of the Supreme Court of California. 439 U. S. 1310 (1978). Because the California judgment extending the per se aspects of Miranda presents an important question about the reach of that case, we thereafter issued the writ. 439 U. S. 925 (1978). II We note at the outset that it is clear that the judgment of the California Supreme Court rests firmly on that court’s interpretation of federal law. This Court, however, has not heretofore extended the per se aspects of the Miranda safeguards beyond the scope of the holding in the Miranda case itself. We therefore must examine the California court’s decision to determine whether that court’s conclusion so to extend Miranda is in harmony with Miranda’s underlying principles. For it is clear that “a, State may not impose ! . . greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” Oregon v. Hass, 420 U. S. 714, 719 (1975) (emphasis in original). See North Carolina v. Butler, 441 U. S. 369 (1979). The rule the Court established in Miranda is clear. In order to be able to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation. 384 U. S., at 473. “Once [such] warnings have been given, the subsequent procedure is clear.” 'Ibid. “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent" }, { "docid": "22049262", "title": "", "text": "agents approximately fifteen minutes after the car began going toward the county jail. Pheaster’s counsel did not put any particular emphasis on the overall delay in booking. . We note that decisions from other circuits have held that in the context of an otherwise complete Miranda warning, this omission is not a fatal flaw. United States v. Floyd, 496 F.2d 982, 988-989 (2 Cir. 1974); United States v. Adams, 484 F.2d 357, 361-362 (7 Cir. 1973); but cf. Smith v. Rhay, 419 F.2d 160, 163 (9 Cir. 1969), where the defendant was also not told that if he could not afford an attorney, one would be appointed to represent him. . In Miranda the discussion of both questions appears in the same paragraph and in very similar language. Because of the similarity in phrasing, an extended quotation is justified: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. * * * “ * * * If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.” 384 U.S. at 473-474, 86 S.Ct. at 1627 (emphasis added; footnote omitted). . Although we recognize that a demand to see an attorney may involve different considerations from an indication of a desire to remain silent, we" }, { "docid": "22049263", "title": "", "text": "this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. * * * “ * * * If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.” 384 U.S. at 473-474, 86 S.Ct. at 1627 (emphasis added; footnote omitted). . Although we recognize that a demand to see an attorney may involve different considerations from an indication of a desire to remain silent, we believe that waiver is possible in either situation. . One of the district court’s grounds for holding that Pheaster’s statements were admissible was the finding that the statements were volunteered and not the result of custodial interrogation. There can be no doubt that Pheaster was in custody at the time of his statements, so the key word in the district court’s finding was “interrogation”. As stated in the text, the conelusion that interrogation had not begun is consistent with the analysis in Hodge and Davis. In the instant case it could be argued that there was an element of interrogation. The F.B.I. agent in charge of Pheaster’s arrest testified that, because of his concern for the safety of the kidnap victim, he did ask Pheaster approximately three times where Larry Adell was being kept. In the context of this case and in light of the agent’s justifiable concern for the safety of Larry Adell, we find that these questions were reasonable and did not rise to the level of interrogation proscribed by Miranda. . Pheaster" }, { "docid": "22049191", "title": "", "text": "an alternative ground, the court held that Pheaster’s statements “were volunteered and not the result of any custodial interrogation.” Ibid. The only issue here is the correctness of the district court’s ruling on the alleged noncompliance by the F.B.I. agents with the requirements of Miranda. Specifically, Pheaster argues that the warning found by .the district court to have been given was inadequate under Miranda, and that the F.B.I. agents failed to respect his rights under Miranda by continuing to interrogate him after he stated that he wanted to see an attorney. A brief summary of the circumstances of Pheaster’s arrest and his making of the subsequent statements will suffice to frame the issues now before us. Because the district court’s holding that Pheaster was not physically abused or threatened is not challenged on this appeal, we excise those allegations from the following account. Shortly after 6 P.M. on July 14, 1974, four F.B.I. agents went to Pheaster’s apartment to arrest him, having previously secured an arrest warrant. Pheaster was arrested in front of the apartment building. Even as the agents struggled to restrain him, Pheaster stated, “I want an attorney right now.” R.T. Vol. 4, p. 179. The agents identified themselves and informed Pheaster that he was under arrest for extortion in connection with the kidnapping of Larry Adell. After his hands were handcuffed behind his back, Pheaster was taken back into his apartment and seated on the couch. Shortly thereafter, he was formally given his Miranda warning by one of the agents, who, at the suppression hearing, summarized the warning as follows: “I told him that he had a right to remain silent; that if he did not, and spoke, it could be used against him. I told him he was entitled to counsel, and if he could not afford one, the Government would furnish him one.” R.T. Vol. 4, p. 158. The agent admitted that he said nothing to Pheaster about his right to have an attorney present during the interrogation. He further testified that as the warning was being given, Pheaster interrupted to state that he knew" }, { "docid": "22049198", "title": "", "text": "more difficult question for decision is whether Pheaster’s statements made after he demanded to see an attorney but before he was provided one are admissible. Pheaster’s position is built upon the following language in Miranda: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. 474, 86 S.Ct. 1628. The Government argues that by agreeing to talk to the arresting F.B.I. agents on the way to county jail, Pheaster waived his rights under Miranda. In United States v. Hodge, 487 F.2d 945 (5 Cir. 1973), the Court of Appeals for the Fifth Circuit held that a confession obtained under circumstances remarkably similar to those in the instant case was admissible. After having been arrested and given adequate warnings of his rights, Hodge requested to have an attorney. In response to that request, the investigating agent “terminated the interview” but proceeded to explain “the charges and evidence” against Hodge. 487 F.2d at 946. Apparently prompted by the evidence already in the Government’s hands, Hodge then changed his mind and volunteered to make a statement. After waiving his right to counsel, Hodge made a confession which was subsequently introduced at trial. On appeal, Hodge urged the court to hold that “once an accused has invoked his right to have an attorney present, all questioning and discussion for whatever purpose must cease until an attorney is obtained for the accused.” Ibid. In affirming Hodge’s conviction, the court rejected his literal interpretation of Miranda, holding instead that “[a]n arrestee can change his mind after requesting an attorney” so long as the change of mind is “voluntarily and freely made”. Id. at 947. In so holding, the court distinguished United States v. Crisp, 435 F.2d 354 (7 Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971) (a case relied upon by Hodge), because in that case, “the police subjected the defendant to intensive questioning immediately following a refusal to answer.” 487 F.2d at 947 (emphasis added). This key distinction between questioning the suspect and presenting the evidence available against him" }, { "docid": "22049260", "title": "", "text": "the following summary of the findings necessary to convict the defendants, this time omitting any reference to a requirement of an actual kidnapping and transportation in interstate commerce: “If you find beyond a reasonable doubt that the existence of the conspiracy charged in the indictment has been proved and that during the existence of the conspiracy one of the overt acts alleged was knowingly done by one of the conspirators in furtherance of the object or purposes of the conspiracy, then proof of the conspiracy is complete and it is complete as to every person found by you to have been willfully a member of the conspiracy at the time the overt act was committed, regardless of which of the conspirators did the overt act.” R.T. Vol. 12, pp. 1794-1795 (emphasis added). The district court’s instructions to the jury indicate that the trial judge read the language of Count One to charge all the necessary elements of a conspiracy conviction, including the allegation that the appellants “conspired * * to transport him in interstate commerce * * Perhaps because of an abundance of caution arising from the poor phrasing of Count One, the district court also instructed the jury that it had to find two of the important elements of the substantive offense, although that offense was not charged in the indictment. The instructions were erroneous because of the combination of elements of the substantive and conspiracy offenses. The instructions placed a heavier burden on the government than was proper; however, since the defendants were convicted under this heavier standard, they have no cause for complaint. The error could only work in their favor and was therefore, harmless. . We must note that defense counsel for Pheaster, who raises this point, was at the time of the trial the Federal Public Defender for the Central District of California and is now the District Attorney for Los Angeles. He is a highly accomplished criminal lawyer. . We recognize that this is an unusually long interval between arrest and booking, but there is no dispute that Pheaster began to cooperate with the" }, { "docid": "22049195", "title": "", "text": "the F.B.I. to commence an investigation there. In addition, the agents received reports back from F.B.I. headquarters which they relayed to Pheaster in an attempt to verify his story. Telephones were used because of concern that a breach of security might result from a radio transmission. Throughout the evening Pheaster amplified and amended his story. The F.B.I. car was diverted from its route to the county jail when Pheaster said that he would show the agents where he had disposed of the typewriter he had used to type the ransom notes. After the car started toward Long Beach Bay, where Pheaster claimed to have thrown the typewriter, he changed his story and stated that the typewriter was in a storage locker in a laundry room behind his apartment and that the agents could get it. The agents then drove back to Pheaster’s apartment where he led them to the locker he had described. When the locker was forced open, a portable typewriter, a .22 caliber automatic pistol, a knapsack, and a towel were found. Later that night, at approximately 1 A.M., the agents transferred to another car parked at the Edgewater Hyatt, because the first car was almost out of gas and no service stations were open. Pheaster was booked at the Los Angeles County Jail at approximately 3 A.M. on July 15,1974, almost nine hours after his arrest. 1. The Adequacy of the Miranda Warning The question of the adequacy of the Miranda warning to Pheaster after his arrest need not detain us long. Pheaster’s argument here is based upon the admitted failure of the F.B.I. agent to inform him specifically that his right to a government-appointed attorney, about which he was informed, also included the right to have that attorney present during his interrogation. We need not decide whether, in the abstract, this omission from an otherwise complete Miranda warning is a fatal flaw, because it is abundantly clear that Pheaster was completely aware of this right. We recognize that in Miranda the Supreme Court held that “[n]o amount of circumstantial evidence that the person may have been" }, { "docid": "22049192", "title": "", "text": "building. Even as the agents struggled to restrain him, Pheaster stated, “I want an attorney right now.” R.T. Vol. 4, p. 179. The agents identified themselves and informed Pheaster that he was under arrest for extortion in connection with the kidnapping of Larry Adell. After his hands were handcuffed behind his back, Pheaster was taken back into his apartment and seated on the couch. Shortly thereafter, he was formally given his Miranda warning by one of the agents, who, at the suppression hearing, summarized the warning as follows: “I told him that he had a right to remain silent; that if he did not, and spoke, it could be used against him. I told him he was entitled to counsel, and if he could not afford one, the Government would furnish him one.” R.T. Vol. 4, p. 158. The agent admitted that he said nothing to Pheaster about his right to have an attorney present during the interrogation. He further testified that as the warning was being given, Pheaster interrupted to state that he knew his rights and to repeat his demand to see a lawyer. Despite the interruption, the warning summarized above was completed. Pheaster was then told that he would be provided an appointed attorney when he was taken before the magistrate following his booking at county jail. After a short delay while arrangements were made for the care of his young son, Pheaster was taken from his apartment to a waiting F.B.I. car for transportation to county jail. Because of his resistance, it was necessary to use some force to get him into the car. No questioning of Pheaster occurred in the apartment. Once in the car, the agent who was in charge of the arrest engaged Pheaster in a “firm” “one-way conversation”. This conversation consisted primarily of a recitation of the evidence against Pheaster, although Pheaster was asked several times whether he knew where Larry Adell was being held. Approximately fifteen to twenty minutes after the trip to county jail began, Pheaster was told that a fingerprint found on the ninth note from the kidnappers had" }, { "docid": "22049261", "title": "", "text": "* * Perhaps because of an abundance of caution arising from the poor phrasing of Count One, the district court also instructed the jury that it had to find two of the important elements of the substantive offense, although that offense was not charged in the indictment. The instructions were erroneous because of the combination of elements of the substantive and conspiracy offenses. The instructions placed a heavier burden on the government than was proper; however, since the defendants were convicted under this heavier standard, they have no cause for complaint. The error could only work in their favor and was therefore, harmless. . We must note that defense counsel for Pheaster, who raises this point, was at the time of the trial the Federal Public Defender for the Central District of California and is now the District Attorney for Los Angeles. He is a highly accomplished criminal lawyer. . We recognize that this is an unusually long interval between arrest and booking, but there is no dispute that Pheaster began to cooperate with the agents approximately fifteen minutes after the car began going toward the county jail. Pheaster’s counsel did not put any particular emphasis on the overall delay in booking. . We note that decisions from other circuits have held that in the context of an otherwise complete Miranda warning, this omission is not a fatal flaw. United States v. Floyd, 496 F.2d 982, 988-989 (2 Cir. 1974); United States v. Adams, 484 F.2d 357, 361-362 (7 Cir. 1973); but cf. Smith v. Rhay, 419 F.2d 160, 163 (9 Cir. 1969), where the defendant was also not told that if he could not afford an attorney, one would be appointed to represent him. . In Miranda the discussion of both questions appears in the same paragraph and in very similar language. Because of the similarity in phrasing, an extended quotation is justified: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At" }, { "docid": "12960565", "title": "", "text": "obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. As with the warning of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” 86 S.Ct. 1627. In view of Miranda, even if not Esco-bedo, the statements here would be inadmissible due to the failure of the police to advise appellant, an indigent person, prior to taking the statements, that he was entitled to have a court appointed lawyer, and that he could confer with the lawyer and have him present during interrogation. However, the Supreme Court in Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, held that Escobedo affects only those cases in which trial began after June 22, 1964, and that" }, { "docid": "22049204", "title": "", "text": "the Government had met its “heavy burden” in establishing Pheaster’s waiver. Because it was not possible for the F.B.I. agents who arrested Pheaster to provide him with an attorney at the moment that he demanded one, the key question is whether the failure of the agents to sit mute during the ride to county jail, where an attorney could be provided, mandates the exclusion of Pheaster’s statements. On the particular facts of this case, we are convinced that such exclusion was not mandated. This conclusion would have been significantly easier had there been an express waiver of rights but the absence of such a waiver is not determinative, for this Court has held that in appropriate circumstances a waiver of Miranda rights can be implied rather than express. United States v. Hilliker, 436 F.2d 101, 103 (9 Cir.), cert. denied, 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971); see also United States v. Vigo, 487 F.2d 295, 299 (2 Cir. 1973) (statement after defective Miranda warning held to be volunteered). Although this question is not specifically addressed in Mosley, the recitation of the facts indicates an implied, rather than an express, waiver by Mosley. 423 U.S. at 104, 96 S.Ct. 321. We think that this is a case in which waiver can be implied. It is critical to focus on the fact that Pheaster agreed to cooperate with the agents after he had been in the car for only fifteen to twenty minutes — a point not challenged in his brief. Thus, although he was in the car for a longer period, his cooperation was not the result of lengthy incommunicado detention. This is not a case in which there was an intentional delay in providing an attorney in the hope that the suspect would yield to pressure and recant his demand for an attorney. It is also important to note that Pheaster’s statements came as a result of an objective, undistorted presentation of the extensive evidence against him, particularly the positive identification of his fingerprint on the ninth note. As in Hodge and Davis, the questioning did" }, { "docid": "22049193", "title": "", "text": "his rights and to repeat his demand to see a lawyer. Despite the interruption, the warning summarized above was completed. Pheaster was then told that he would be provided an appointed attorney when he was taken before the magistrate following his booking at county jail. After a short delay while arrangements were made for the care of his young son, Pheaster was taken from his apartment to a waiting F.B.I. car for transportation to county jail. Because of his resistance, it was necessary to use some force to get him into the car. No questioning of Pheaster occurred in the apartment. Once in the car, the agent who was in charge of the arrest engaged Pheaster in a “firm” “one-way conversation”. This conversation consisted primarily of a recitation of the evidence against Pheaster, although Pheaster was asked several times whether he knew where Larry Adell was being held. Approximately fifteen to twenty minutes after the trip to county jail began, Pheaster was told that a fingerprint found on the ninth note from the kidnappers had been positively identified as his. Upon hearing that information, Pheaster stated that he had “something to do” with the kidnapping and began to supply details about the kidnapping scheme, his confederates, and the location of Larry Adell. The agent in charge of the arrest testified that, “Once [Pheaster] admitted implication, which was at the first stop, he was in a generally cooperative, amenable mood.” R.T. Vol. 4, p. 161. At approximately 6:45 P.M. Pheaster was again asked if he was aware of his rights and was reminded that he did not have to speak to the agents. He replied that he knew his rights, but that he had “had such a small part in this that I want, you know, help you get the boy back.” R.T. Vol. 4, pp. 214-215. A number of stops were made on the way to the county jail so that the information supplied by Pheaster could be relayed to F.B.I. headquarters by telephone. At one point Pheaster indicated that the boy was in Las Vegas, and the agents telephoned" }, { "docid": "19094894", "title": "", "text": "questioning.” Id. at 360-61, 101 S.Ct. at 2809-10 (citation omitted) (second ellipsis in original). See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). There can be little question, then, that the right to have counsel during questioning is fundamental to the Miranda scheme. We are not permitted, however, merely to apply the plain language of Miranda to the case before us. Rather, we must examine the Miranda warnings from a practical viewpoint. Camacho v. United States, 407 F.2d 39, 42 n. 2 (9th Cir.), cert. denied, 396 U.S. 944, 90 S.Ct. 380, 24 L.Ed.2d 245 (1969). If a defendant has been told the substance of his constitutional rights, it is not fatal if irrelevant words or words with no independent substance are omitted. See California v. Prysock, 453 U.S. at 359, 101 S.Ct. at 2809. In previous cases, we have stressed the importance of informing defendants that they have the right to the actual physical presence of an attorney, Smith v. Rhay, 419 F.2d 160, 163 (9th Cir.1969), and the right to have an attorney present immediately. Id.; see also California v. Prysock, 453 U.S. at 361, 101 S.Ct. at 2810. Although the warnings given Noti probably did not convey to him the right to the actual physical presence of an attorney, Noti has not raised this issue on appeal. Rather, he argues only that there is substantive importance to being informed of the right to counsel during questioning independent of being informed of the right to counsel before questioning. This court has not considered the precise issue whether a defendant is entitled to know that he has the right to the presence of counsel during interrogation. The Second Circuit has deemed the omission of this warning insignificant, holding that Miranda is satisfied by the inference that can be drawn from the combination of statements that the individual has the right to remain silent and that he has the right to consult with counsel. See United States v. Lamia, 429 F.2d 373, 377 (2d Cir.), cert. denied, 400 U.S. 907, 91 S.Ct. 150, 27" }, { "docid": "22049197", "title": "", "text": "aware of [his right to have an attorney present during interrogation] will suffice to stand in [the] stead [of the warning].” 384 U.S. at 471-472, 86 S.Ct. at 1626. Thus, the Supreme Court’s holding would preclude us from finding that Pheaster had prior knowledge of his right simply because of his almost continuous history of involvement with the criminal justice system. Here, however, we do not rely upon circumstantial evidence, for there is direct evidence from Pheaster’s own mouth that he was aware of his right. As the agent was informing him of his Miranda rights, Pheaster interrupted, insisting that he knew his rights and repeating his earlier demand to see an attorney immediately. To hold on these facts that the disputed evidence must be suppressed because of the alleged defect in the Miranda warning would be to convert a warning to a ritual and, in the truest sense of a hackneyed expression, to exalt form over substance. Needless to say, we decline to do so. 2. Waiver of the Miranda Rights The next and more difficult question for decision is whether Pheaster’s statements made after he demanded to see an attorney but before he was provided one are admissible. Pheaster’s position is built upon the following language in Miranda: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. 474, 86 S.Ct. 1628. The Government argues that by agreeing to talk to the arresting F.B.I. agents on the way to county jail, Pheaster waived his rights under Miranda. In United States v. Hodge, 487 F.2d 945 (5 Cir. 1973), the Court of Appeals for the Fifth Circuit held that a confession obtained under circumstances remarkably similar to those in the instant case was admissible. After having been arrested and given adequate warnings of his rights, Hodge requested to have an attorney. In response to that request, the investigating agent “terminated the interview” but proceeded to explain “the charges and evidence” against Hodge. 487 F.2d at 946. Apparently prompted by the evidence already in the Government’s hands, Hodge then changed" }, { "docid": "22891634", "title": "", "text": "asserted than when the government attempts to show a waiver of the right to remain silent. 430 U.S. at 405 & n. 10, 97 5. Ct. 1232. This circuit has not been consistent in its decisions on cases involving waiver of an asserted right to counsel. In United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977), a panel found an implied waiver less than half an hour after the right to counsel had been explicitly asserted. In Pheaster, FBI agents gave Miranda warnings. The defendant asked for an attorney and refused to answer questions. In a car en route to the county jail, an agent engaged in a “firm,” “one-way conversation” with the defendant, primarily involving a recitation of the evidence against him. Intermittently, the agent asked where the kidnapping victim was being held. Upon hearing that a fingerprint on one of the notes had been positively identified as his, the defendant admitted his complicity and then cooperated with the agents. The panel recognized a “key distinction between questioning the suspect and presenting the evidence available against him.” 544 F.2d at 366. The court noted that other panels of this and other circuits have relied on the same distinction in finding a waiver of asserted Miranda rights. See United States v. Davis, 527 F.2d 1110 (9th Cir. 1975); United States v. Hodge, 487 F.2d 945 (5th Cir. 1973). The court also found “instructive” the Supreme Court’s treatment of a “closely-related question” (“the effect of a suspect’s indication that he desires to remain silent”) in Michigan v. Mosley, supra: In Mosley the Court rejected a literal interpretation of Miranda, holding that the exercise of the right to remain silent does not preclude all further questioning. Rather, in the context of the particular facts of Mosley, the Court held that a confession made two hours after Mosley had indicated his desire to remain silent was admissible. . . . Although the specific holding in Mosley is not direct precedent for the resolution of" }, { "docid": "22891647", "title": "", "text": "1976; petition for rehearing pending). . Thus, the factual situation in Pheaster contrasts with that in Brewer v. Williams, where there was no serious doubt . . . that Detective Learning deliberately and designedly set out to elicit information from Williams just as surely as — and perhaps more effectively than — if he had formally interrogated him. Detective Learning’s “Christian burial speech” [was] tantamount to [an] interrogation. 430 U.S. at 399-400, 97 S.Ct. at 1239. In Pheaster, the officer was informing the defendant of the evidence against him so that the defendant could invoke or waive his constitutional rights based on a realistic appraisal of his situation. In the instant case, it is even more difficult to characterize Officer Brown’s follow-up question as continued “interrogation”. The context clearly indicates that it was an attempt to clarify the defendant’s intention. The Pheaster court also relied on the fact that only a short period of time transpired between the assertion of the right and the waiver. 544 F.2d at 368. About 15 to 20 minutes had elapsed. In the instant case the waiver immediately followed the assertion of the right to counsel. 1 It is stated in Miranda, 384 U.S. at 474, 86 S.Ct. at 1628, that: “If the individual states that he wants an attorney, the interrogation must cease until one is present.” Earlier in that paragraph, at 473-74, 86 S.Ct. 1602, 1628, however, the Court stated: “If the individual indicates in any manner, at any time prior [to] or during questioning, that he wishes to remain silent, the interrogation must cease. At that point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” Yet Mosley specifically approved later questioning of a suspect though the right to silence had previously been claimed. Similarly, see Miranda, at 444 — 45, 86 S.Ct. 1602, 1612: “If [the suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking" }, { "docid": "801004", "title": "", "text": "applied by the state court in determining the issue of waiver. Further, the resolution of the waiver issue by the state court, although after fair consideration and following procedural due process, cannot be accepted as binding when it has misconceived a federal constitutional right. Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 437, 97 L.Ed. 469 (1953); Townsend v. Sain, supra, 372 U.S. at 318, 83 S.Ct. 747; Doerflein v. Bennett, supra. Appellant points out that this court recently held that an accused can voluntarily, knowingly and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. See Moore v. Wolff, 495 F.2d 35 (8th Cir. 1973). The prosecution, however, has the weighty obligation to show that the waiver was knowingly and intelligently made. We quite agree with Judge Hanson that the state here failed to so show. In this case, appellee had obtained counsel in both Des Moines and Davenport and had been advised of his Miranda rights prior to departure from Davenport. Once the Miranda warnings have been given, the subsequent procedure to be followed by the police is well set forth by the Supreme Court as follows: Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Miranda v. Arizona, supra, 384 U.S. at 473, 474, 86 S.Ct. at 1627, 1628. (Emphasis supplied.) The facts in this case clearly indicate that the appellee told Detective Learning several times during the automobile trip to Des Moines that he would tell the whole story after consulting with Mr. McKnight. Despite this indication by appellee that he wished to delay his statement until he had consulted with his attorney in Des Moines, Detective Learning persisted in his “conversation” with appellee with the" }, { "docid": "22049196", "title": "", "text": "that night, at approximately 1 A.M., the agents transferred to another car parked at the Edgewater Hyatt, because the first car was almost out of gas and no service stations were open. Pheaster was booked at the Los Angeles County Jail at approximately 3 A.M. on July 15,1974, almost nine hours after his arrest. 1. The Adequacy of the Miranda Warning The question of the adequacy of the Miranda warning to Pheaster after his arrest need not detain us long. Pheaster’s argument here is based upon the admitted failure of the F.B.I. agent to inform him specifically that his right to a government-appointed attorney, about which he was informed, also included the right to have that attorney present during his interrogation. We need not decide whether, in the abstract, this omission from an otherwise complete Miranda warning is a fatal flaw, because it is abundantly clear that Pheaster was completely aware of this right. We recognize that in Miranda the Supreme Court held that “[n]o amount of circumstantial evidence that the person may have been aware of [his right to have an attorney present during interrogation] will suffice to stand in [the] stead [of the warning].” 384 U.S. at 471-472, 86 S.Ct. at 1626. Thus, the Supreme Court’s holding would preclude us from finding that Pheaster had prior knowledge of his right simply because of his almost continuous history of involvement with the criminal justice system. Here, however, we do not rely upon circumstantial evidence, for there is direct evidence from Pheaster’s own mouth that he was aware of his right. As the agent was informing him of his Miranda rights, Pheaster interrupted, insisting that he knew his rights and repeating his earlier demand to see an attorney immediately. To hold on these facts that the disputed evidence must be suppressed because of the alleged defect in the Miranda warning would be to convert a warning to a ritual and, in the truest sense of a hackneyed expression, to exalt form over substance. Needless to say, we decline to do so. 2. Waiver of the Miranda Rights The next and" } ]

[ { "docid": "22972655", "title": "", "text": "MEHRTENS, Senior District Judge: The oil-laden Barge New London, push-towed by the Tug Ocean Prince, struck a charted rock outside the navigable channel in the Hudson River, sustaining damage and causing a considerable oil spill. Tug Ocean Prince, Inc. and Red Star Towing & Transportation Co. (Red Star), the owner and charterer of the Tug Ocean Prince, petitioned for exoneration from or limitation of liability under 46 U.S.C. § 183 et seq. in which proceeding Pittston Marine Transport Corp. (Pittston) filed claims for damage to the barge and loss of cargo. Red Star thereafter filed a third-party action against the United States of America (the United States), alleging that its fault caused the casualty. The United States counterclaimed against the tug and cross-claimed against the barge for the pollution cleanup expenses. Pittston crossclaimed against the United States for its damages and the United States counterclaimed against Red Star for the money spent for cleanup. The United States also filed a separate action against them for the cleanup costs in the civil pollution penalty under 33 U.S.C. § 1321. The actions were consolidated for trial. The trial court denied exoneration but granted limitation to the value of the tug. It further found that Pitt-ston was not responsible for the oil spill and dismissed the United States’ action against Pittston. The court also dismissed both Red Star’s and Pittston’s claims in the third-party action as well as Pittston’s counterclaim against the United States in the action it instituted to recover the cleanup costs, limiting the tug’s liability for pollution cleanup to $100 per gross ton under the provisions of 33 U.S.C. § 1321. Nobody is happy and everybody has appealed. The court below made detailed findings of fact and conclusions of law. The Ocean Prince v. United States, 436 F.Supp. 907 (S.D.N.Y.1977). The facts may be capsulat-ed, enlarging upon them as need be in the discussion that follows. The Facts in the Court Below In examining Pittston’s and the United States’ contentions that the district court erred in holding that Red Star was entitled to limit its liability, we make plain at" } ]

[ { "docid": "7863918", "title": "", "text": "contra, Note, Oil Spills and Cleanup Bills: Federal Recovery of Oil Spill Cleanup Costs, 93 Harv.L.Rev. 1761 (1980). However, at this point we must note that a facet of the reasoning was that the Act itself did not show any intent to permit other remedies against the discharger than those stated by subsection (f). In Dixie Carriers, supra, we expressly noted, with regard to other remedies against third parties, Section 1321(h)(2) states that the FWPCA [the Act] does not affect the rights which the United States may have against a third party whose actions caused an oil spill. See United States v. LeBeouf Brothers Towing Co., 621 F.2d 787 (5th Cir. 1980) (third party defense under section 1321(f)(1) for oil spill from barge does not extend to tug towing barge at time of spill). No such express language allows the government to recover its cleanup costs under the Refuse Act or common law. 627 F.2d at 742. See also Oswego Barge, supra, 664 F.2d 327 at 341 n.19. In holding that the Act provides an exclusive remedy as against the discharger, Oswego Barge contained a thoughtful and well-reasoned discussion of the criteria for gauging whether the Act had preempted (as against the discharger) other causes of action there asserted, which included both the maritime tort (simple negligence) and the Refuse Act actions, both here presently asserted by the United States against the present third party non -discharging vessel. See especially 664 F.2d at 835-39. We see no need to reiterate the detailed reasoning of that opinion, but we here note and adopt the salient features of that decision’s excellent analysis of the applicable criteria as to whether the Act [referred to as the “FWPCA” in that opinion] had preempted other statutory or judge-made maritime law remedies. With respect to non-maritime federal common law, the Court has recently articulated a strict test for determining the preemptive effect of a federal statute. City of Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). Instead of inquiring whether “Congress ha[s] affirmatively proscribed the use of federal common law,” id." }, { "docid": "119596", "title": "", "text": "on appeal. DISCUSSION A. Was the dredge OREGON a “public vessel” engaged in commerce and thus covered by the WQIS policy? WQIS is an insurance syndicate offering coverage tailored to liabilities ere ated by the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1376 (1982). The FWPCA is a remedial statute intended to create a comprehensive plan to expedite oil pollution cleanup and allocate and limit liability. Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162 (2d Cir.1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979). WQIS’s coverage for removal costs of oil is coextensive with FWPCA’s liabilities. The Act specifically excludes public vessels unless engaged in commerce. 33 U.S.C. §§ 1321(a)(3) and (4). The Act does not define “engaged in commerce.” The OREGON was used to dredge the Columbia and Willamette Rivers as an aid to navigation. These tasks were performed under contract with the U.S. Army Corps of Engineers. The Port’s contract with the Corps of Engineers provided for the Port’s recovery of all “actual costs” as well as indirect costs such as maintenance, capital expenditures, insurance, depreciation and standby costs. When the OREGON sank it was being prepared for another dredging season. Its crew had just completed final preparations that included loading fuel oil. On these undisputed facts, the district court granted summary judgment in favor of the Port. The court concluded that the FWPCA was intended to cover a municipality’s activity “far removed from traditional state functions, which is more commonly performed by the private sector.” We agree. There is no question that municipalities engage in activities which may cause them liability under the FWPCA. See United States v. Massachusetts Bay Transportation Authority, 614 F.2d 27, 28-29 (1st Cir.1980) (transit authority liable for civil penalties for causing oil spills); United States v. City of New York, 481 F.Supp. 4, 6-7 (S.D.N.Y.1979) (city liable for civil penalties for discharges of oil into navigable waters), aff'd without opinion, 614 F.2d 1292 (2d Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2154, 64 L.Ed.2d 789 (1980). Dredging operations have been held to" }, { "docid": "22466825", "title": "", "text": "right of the United States to take legal measures to protect its interests. Bearing in mind the FWPCA is not a model of clarity, when interpreting it we must consider the statutory scheme as a whole, including the object and policies contained within. See Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 41 L.Ed.2d 525 (1975). We do not find that 33 U.S.C. § 1321 established a priority procedure which must be followed by the United States in filing suit against a party. In many cases the construction favored by the appellees would require a senseless expenditure of time and resources by requiring the United States to sue the non-culpable owner/operator with such owner/operator, cooperatively, bringing suit against the culpable third party. We refuse to add our imprimatur to such an impediment to the Congressionally declared purpose of prevention of oil spills. We hold that the United States may sue negligent third parties directly. The statute itself provides that “[t]he United States may bring an action against the third party in any court of competent jurisdiction to recover such removal costs.” 33 U.S.C. § 1321(g). Further, we find the provision dealing with “willful negligence or willful misconduct” is limited to situations where the United States seeks recovery of the full amount of the removal costs and such amount exceeds the limitation provided in 33 U.S.C. § 1321(g). Finally, we find the statutory provision regarding sole acts of negligence by third parties was included as an adjunct to the exceptions to owner/operator liability provided in 33 U.S.C. § 1321(f)(1), (2), and (3). This language makes it clear that in those circumstances described in section 1321(f)(1), (2), and (3) the negligent third party is liable for the cleanup costs. We do not read the Act as limiting third-party liability to the narrow circumstances urged by appellees. Cf. Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979) (third-party tugboat owner held liable under the FWPCA without a finding of sole responsibility). Appellant also argues it" }, { "docid": "18379101", "title": "", "text": "on the part of the third-party defendants. . Representative Gore’s amendment was intended to make § 3071 \"reflect more accurately the prevailing common law doctrines.” 126 Cong. Rec. 26,785 (1980). The earlier version of § 3071 had required courts to apportion liability among responsible parties \"to the maximum extent practicable.” 126 Cong.Rec. 26,779 (1980). . A number of district courts, applying common law principles, have held that one tortfeasor cannot compel the Rule 19 joinder of another in a CERCLA action. New York v. Shore Realty Corp., 21 E.R.C. 1430, 1431 (E.D.N.Y.1984); United States v. A & F Materials Co., Inc., 578 F.Supp. at 1260-61; United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. at 845 n. 26; United States v. Conservation Chemical Co., 589 F.Supp. at 63. The appropriate procedure, assuming there is a right to contribution, is to implead a joint tortfeasor as a third-party defendant under Rule 14, Fed.R.Civ.P. This procedural distinction, however, should not obscure the main point — Representative Gore clearly stated his understanding that, under the common law, a defendant subject to joint and several liability may bring other potentially responsible parties into the suit in order to apportion liability. . Courts have recognized a right to contribution under the Federal Water Pollution Control Act (\"FWPCA”). United States v. Bear Marine Services, 509 F.Supp. 710, 716 (E.D.La.1980), remanded on other grounds, 696 F.2d 1117 (5th Cir.1983); In re the Complaint of Berkley Curtis Bay Co., 557 F.Supp. 335, 339 (S.D.N.Y.1983). Section 311(h)(1) of FWPCA, 33 U.S.C. § 1321(h)(1), preserves a right to contribution, although, like CERCLA § 107(e)(2), it is not the source of the right. The source of the right must be, as in CERCLA, the prevailing common law rule permitting contribution among joint tortfeasors. My research has revealed no case expressly articulating the source of the FWPCA’s right to contribution. In In re the Complaint of Berkley Curtis Bay Co., for example, the court merely assumed that there is a right to contribution: “Of course, if the government elects to demand reimbursement from either one [liable party or the other] for" }, { "docid": "11895233", "title": "", "text": "of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omis sion of a third party without regard to whether any such act or omission was or was not negligent, or any combination of the foregoing clauses . In cases involving inland oil spills, section 1321(g) requires the Government to sue the owner or operator of the discharging vessel for clean-up costs before it can sue a “third party” who may have caused the spill. The statute does not define what constitutes such a “third party.” LeBeouf contends that the term “third party” in section 1321(f)(1) should be interpreted broadly to include all parties — such as the tugboat in this case — over whom the owner-operator has no direct control or supervision. As authority for this interpretation, LeBeouf relies upon the district court opinion in Tug Ocean Prince, Inc. v. United States, 436 F.Supp. 907, 923-24 (S.D.N.Y. 1977), aff’d in part and rev’d in part on other grounds, 584 F.2d 1151 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499 (1980). In Tug Ocean Prince a tug towed a tanker barge into submerged rocks, which caused the barge to spill oil onto the Hudson River. The tug owner sued to limit its liability as a “third party” under section 1321(g) so that damages would be calculated with reference to the weight of the tug alone, not with reference to the combined weight of the tug and barge together. The district court did not discuss section 1321(f)(1), but it treated the tug as a “third party” for purposes of section 1321(g), and construed that statute so that the tug’s liability would be limited to damages calculated only with reference to the weight of the tug alone. A broad interpretation of the term “third party” was rejected by the First Circuit in Burgess v. M/V Tamano, 564 F.2d 964, 981-82 (1st Cir. 1977), cert. denied, 435 U.S. 941, 98 S.Ct. 1520, 55 L.Ed.2d 537 (1978), in which the court expressly discussed what constitutes a “third party” under" }, { "docid": "7863917", "title": "", "text": "The House of Representatives bill limited the government’s recovery even upon proof of a willful discharge. H.R.Rep.No.91-127, 91st Cong., 1st Sess. (1969), reprinted in [1970] U.S.Code Cong. & Admin.News, p. 2691. The final statute allowing only limited recovery under a strict liability theory and allowing an unlimited recovery only upon proof of willful conduct represents a compromise between the two proposed statutes. See H.R.Conf.Rep.No. 91-940, 91st Cong., 1st Sess. 30-39 (1969), reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 2712-28. In enacting a compromise bill that limits the government’s recovery for cleanup costs in all cases except those involving willful discharges, Congress apparently intended to deter oil spills and recover cleanup costs in a manner that would protect most vessel owners from potentially crushing liability. A similar conclusion has been reached by the Second and Fourth Circuits. In re Oswego Barge Corp., 664 F.2d 327, 344 (2d Cir. 1981); Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 614-18 (4th Cir. 1979). See also: Comment, Federal Water Pollution Control Act, 53 Tul.L.Rev. 1421 (1979); contra, Note, Oil Spills and Cleanup Bills: Federal Recovery of Oil Spill Cleanup Costs, 93 Harv.L.Rev. 1761 (1980). However, at this point we must note that a facet of the reasoning was that the Act itself did not show any intent to permit other remedies against the discharger than those stated by subsection (f). In Dixie Carriers, supra, we expressly noted, with regard to other remedies against third parties, Section 1321(h)(2) states that the FWPCA [the Act] does not affect the rights which the United States may have against a third party whose actions caused an oil spill. See United States v. LeBeouf Brothers Towing Co., 621 F.2d 787 (5th Cir. 1980) (third party defense under section 1321(f)(1) for oil spill from barge does not extend to tug towing barge at time of spill). No such express language allows the government to recover its cleanup costs under the Refuse Act or common law. 627 F.2d at 742. See also Oswego Barge, supra, 664 F.2d 327 at 341 n.19. In holding that the Act provides an" }, { "docid": "7863903", "title": "", "text": "The Act imposes liability for cleanup costs on “dischargers,” and cleanup costs incurred by the government are recoverable under § 1321(f)(1), (2), (3) from the discharging vessel or facility. If, however (as here), the sole cause of the accident is the act or omission of a third party, the government is permitted to recover its cleanup costs from such sole-cause third-party. § 1321(g) . The Act also expressly pro vides that the liabilities thereby provided “shall in no way affect any rights” that a discharging vessel or facility, or the United States, may have against any third party whose acts “may in any way have caused or contributed to the discharge.” § 1321(h) (emphasis supplied). A primary issue of this appeal is the interrelationship between subsections (f), (g), and (h), with regard to the liability of a sole-cause non-discharging vessel. These subsections, as re-enacted in 1972 by the Act, are essentially the same as those originally enacted by section 11(f), (g), and (h) of the Water and Environmental Quality Improvement Act of 1970, Pub.L. 91-224, 84 Stat. 91. Committee reports and debates relating to the enactment of these predecessor provisions have been considered as the source of the legislative history of these subsections (f), (g), and (h), although the 1972 committee reports also referred to them without illuminating expression. Subsection (f) imposes a strict liability standard under which the United States may recover from a discharger its cleanup costs up to stated limits without a showing of fault. The discharger may, however, escape this strict liability if he shows that the discharge was caused solely by an act of God, an act of war, negligence on the part of the United States — or an act or omission of a third party. On the other hand, if the United States proves that the discharge “was the result of willful negligence or willful misconduct within the privity and knowledge of the owner,” the owner is liable to the United States for the full amount of the cleanup costs. Subsection (g) comes into play when the discharger proves that the discharge “was" }, { "docid": "7863902", "title": "", "text": "the solely negligent vessel, and in its holding that § 1321(g) of the Act provided the exclusive remedy against a third-party non-discharging vessel solely at fault. Before reaching these contentions, we will set forth briefly an overview of sections of the Act relevant to the issues before us. The Statutory Scheme The issues before us on this appeal are essentially ones of statutory construction. Involved are not only what remedies were intended by Congress in passing the Act, but as well what remedies were foreclosed. The Act, 33 U.S.C. §§ 1251-1376, was originally enacted as the Water Quality Improvement Act of 1970, Pub.L.No.91-224, with relevant provisions reenacted as part of the Federal Water Pollution Control Act Amendments of 1972. The Act prohibits the discharge of oil into the navigable waters of the United States, 33 U.S.C. § 1321(b)(1). The government is authorized to clean up any oil spill not properly removed by the discharger, 33 U.S.C. § 1321(c)(1), including the emergency power to remove, and if necessary destroy, the discharging vessel, 33 U.S.C. § 1321(d). The Act imposes liability for cleanup costs on “dischargers,” and cleanup costs incurred by the government are recoverable under § 1321(f)(1), (2), (3) from the discharging vessel or facility. If, however (as here), the sole cause of the accident is the act or omission of a third party, the government is permitted to recover its cleanup costs from such sole-cause third-party. § 1321(g) . The Act also expressly pro vides that the liabilities thereby provided “shall in no way affect any rights” that a discharging vessel or facility, or the United States, may have against any third party whose acts “may in any way have caused or contributed to the discharge.” § 1321(h) (emphasis supplied). A primary issue of this appeal is the interrelationship between subsections (f), (g), and (h), with regard to the liability of a sole-cause non-discharging vessel. These subsections, as re-enacted in 1972 by the Act, are essentially the same as those originally enacted by section 11(f), (g), and (h) of the Water and Environmental Quality Improvement Act of 1970, Pub.L. 91-224," }, { "docid": "7863927", "title": "", "text": "that subsection (g), providing for strict liability in limited amount against a faultless third-party causing the accident, is inconsistent with the no-limitation strict liability remedy to be implied from the Refuse Act. Conclusion Accordingly, we AFFIRM the district court’s dismissal of the United States claim insofar as based upon the Refuse Act; but we REVERSE the dismissal of the government’s maritime tort claim and the district court’s disallowance of an in rem remedy for the subsection (g) cleanup-cost damages resulting from the BIG SAM’s negligence. The case is remanded for further proceedings not inconsistent with this opinion. AFFIRMED IN PART; REVERSED IN PART, AND REMANDED. . The United States initially also sued the BUTANE (the discharging vessel) and Delta, its owner and operator. The government does not complain of the dismissal of these parties from the suit, as exculpated from liability because the negligence of the BIG SAM was the sole cause of the collision. See § 1321(f), quoted in note 5 below. . See Naptha Barge Co. v. Continental Navigation Co., 1978 A.M.C. 501, No. 75-1281 (E.D.La.1977). In this suit, Delta (the owner of the discharging vessel BUTANE) recovered from Tri-Capt (the bareboat charterer of the BIG SAM) damages, civil penalties paid to the Coast Guard under § 1321(b), costs expended to protect water intake, and the initial and aborted cleanup costs incurred by Delta. The right to recover the latter is expressly recognized by § 1321(h), which provides The liabilities established by this section shall in no way affect any rights which (1) the owner or operator of a vessel or of an onshore facility or an offshore facility may have against any third party whose acts may in any way have caused or contributed to such discharge, or .... The United States strongly argues that likewise its own cleanup costs were preserved by the remainder of this subsection § 1321(h)(2), which similarly provides that the liability established in § 1321 “shall in no way affect any rights which ... (2) the United States Government may have against any third party whose actions may in any way have" }, { "docid": "12564328", "title": "", "text": "government’s cleanup costs. See 462 F.Supp. 1126, 1127 n. 1. Neither did the district court decide whether Dixie acted willfully to cause the oil discharge in this case. See 462 F.Supp. at 1128. On appeal the government contends that it should be allowed to recover under additional legal theories because the FWPCA does not expressly repeal the Refuse Act nor supersede common law remedies. The government asserts that additional recoveries under the Refuse Act or common law would be consistent with the general policy of the FWPCA to prevent discharges of oil upon the navigable waters of the United States. 33 U.S.C. § 1321(b)(1). Dixie contends that the language, legislative history, and general statutory scheme of the FWPCA demonstrate Congress’ intent to provide an exclusive and comprehensive remedy for the government to clean up oil spills and to recover cleanup expenses. Because the FWPCA allows the government to recover only a limited amount under strict liability, and to recover an unlimited amount only upon proof of a willful discharge, Dixie asserts that the FWPCA embodies a balanced compromise which will be destroyed if the courts now allow the government to recover an unlimited amount under the Refuse Act or common law. Every court that has considered this issue has held that the FWPCA provides the government’s exclusive remedy for recovering oil spill cleanup costs. See Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 614-18 (4th Cir. 1979); United States v. Tug J. P. McAllister, Civ. No. 76—462 (D.P.R. Apr. 3, 1980); United States v. Hollywood Marine, Inc., No. 77-1870 (S.D.Tex. May 3, 1979); United States v. Hollywood Marine, Inc., 487 F.Supp. 1211 (S.D.Tex.1979), reversed, 625 F.2d 524 (5th Cir. 1980); United States v. M/V Big Sam, 480 F.Supp. 290 (E.D.La.1979), vacating 454 F.Supp. 1144 (E.D.La.1978); In re Oswego Barge Corp., 1979 A.M.C. 333 (N.D.N.Y.1978); Valley Towing Service, Inc. v. S. S. American Wheat, Civ. No. 75-363 (E.D.La. Dec. 19, 1978). See also Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979)" }, { "docid": "11895232", "title": "", "text": "crew. In March 1974 the tug crew unloaded oil from the LBT # 4 at Westwego, Louisiana. A tug crewman who was working as a tankerman without a license, in violation of 33 C.F.R. § 155.710(a)(2) (1979), accidentally opened the wrong valve and discharged sixty barrels of crude oil onto the Mississippi River. Neither LeBeouf, Bayou, nor Barracuda cleaned up the oil spill. Finally the Coast Guard contracted to clean up the spill at a total cost of $38,689. The Government sued to recover this clean-up cost under the Federal Water Pollution Control Act, 33 U.S.C. § 1321, in March 1977. The district court dismissed the Government’s suit against LeBeouf because it concluded that the oil spill was caused by a “third party” under section 1321(f)(1). II. Third-Party Defense under Section 1321(f)(1). Under section 1321(f)(1) the owner or operator of the discharging vessel is liable to the Government for the costs of cleaning up an oil spill [ejxcept where an owner or operator can prove that a discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omis sion of a third party without regard to whether any such act or omission was or was not negligent, or any combination of the foregoing clauses . In cases involving inland oil spills, section 1321(g) requires the Government to sue the owner or operator of the discharging vessel for clean-up costs before it can sue a “third party” who may have caused the spill. The statute does not define what constitutes such a “third party.” LeBeouf contends that the term “third party” in section 1321(f)(1) should be interpreted broadly to include all parties — such as the tugboat in this case — over whom the owner-operator has no direct control or supervision. As authority for this interpretation, LeBeouf relies upon the district court opinion in Tug Ocean Prince, Inc. v. United States, 436 F.Supp. 907, 923-24 (S.D.N.Y. 1977), aff’d in part and rev’d in part on other grounds, 584 F.2d 1151 (2d" }, { "docid": "22466826", "title": "", "text": "of competent jurisdiction to recover such removal costs.” 33 U.S.C. § 1321(g). Further, we find the provision dealing with “willful negligence or willful misconduct” is limited to situations where the United States seeks recovery of the full amount of the removal costs and such amount exceeds the limitation provided in 33 U.S.C. § 1321(g). Finally, we find the statutory provision regarding sole acts of negligence by third parties was included as an adjunct to the exceptions to owner/operator liability provided in 33 U.S.C. § 1321(f)(1), (2), and (3). This language makes it clear that in those circumstances described in section 1321(f)(1), (2), and (3) the negligent third party is liable for the cleanup costs. We do not read the Act as limiting third-party liability to the narrow circumstances urged by appellees. Cf. Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979) (third-party tugboat owner held liable under the FWPCA without a finding of sole responsibility). Appellant also argues it possesses the remedies available under maritime tort and nuisance theories. Some courts have held that the FWPCA is the government’s exclusive remedy to recover oil spill cleanup costs. E. g., Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609 (4th Cir. 1979); United States v. Dixie Carriers, Inc., 462 F.Supp. 1126 (E.D.La.1978), aff’d, 627 F.2d 736 (5th Cir. 1980). We feel, however, that the face of the statute itself undermines such a holding. The FWPCA provides: The liabilities established by this section shall in no way affect any rights which * * * (2) the United States Government may have against any third party whose actions may in any way have caused or contributed to the discharge of oil or hazardous substance. [33 U.S.C. § 1321(h)(2).] Oil pollution in navigable waters has been deemed a tort for which the United States is entitled damages, see Oppen v. Aetna Insurance Co., 485 F.2d 252, 257 (9th Cir. 1973); State Department of Fish and Game v. SS Bournemouth, 307 F.Supp. 922, 926 (C.D.Cal.1969). It has also" }, { "docid": "11895234", "title": "", "text": "Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499 (1980). In Tug Ocean Prince a tug towed a tanker barge into submerged rocks, which caused the barge to spill oil onto the Hudson River. The tug owner sued to limit its liability as a “third party” under section 1321(g) so that damages would be calculated with reference to the weight of the tug alone, not with reference to the combined weight of the tug and barge together. The district court did not discuss section 1321(f)(1), but it treated the tug as a “third party” for purposes of section 1321(g), and construed that statute so that the tug’s liability would be limited to damages calculated only with reference to the weight of the tug alone. A broad interpretation of the term “third party” was rejected by the First Circuit in Burgess v. M/V Tamano, 564 F.2d 964, 981-82 (1st Cir. 1977), cert. denied, 435 U.S. 941, 98 S.Ct. 1520, 55 L.Ed.2d 537 (1978), in which the court expressly discussed what constitutes a “third party” under section 1321(f)(1). In Burgess the court held that a supertanker’s temporary local pilot did not constitute a “third party” under section 1321(f)(1). As a result, the owners of the supertanker were held liable for an oil spill that occurred because the local pilot negligently ran the supertanker into a submerged ledge in a Maine harbor. The court concluded that the legislative purpose in drafting section 1321 as a strict liability statute would be undermined unless the third-party defense was narrowly interpreted. Even though the local pilot might be regarded as an independent contractor, he could not constitute a “third party” because the pilot acted for the ship and was subject to its ultimate control. In dicta the court reasoned that a shipyard that installed a defective valve would likewise not constitute a “third party” for the purpose of protecting the shipowner from liability for an oil spill caused by the defect in the valve. If a vandal opened the valve and caused the spill, however, the court said that the third-party defense would apply. Following" }, { "docid": "7863908", "title": "", "text": "specifically defined therein, means “any person owning, operating, or chartering by demise” the vessel in question. 33 U.S.C. § 1321(a)(6). As statutorily defined, the term “owner or operator” refers both to the owner and to the bareboat charterer, and thus in our opinion subsection (g) affords the government a remedy against either or both. Having in mind the intent of the Act to provide an effective remedy through strict liability for recovering cleanup costs from oil spills on navigable waters, it would seem that this construction is more consistent with the legislative purpose than one that would permit an offending vessel or its owners to insulate themselves from liability through a bareboat charter to, as here, an impecunious and uninsured charterer. See United States v. Lebeouf Bros. Towing Company, 621 F.2d 787 (5th Cir. 1980) (rejecting a similar attempt under subsection (f) to impose a third-party defense between the owners of the discharging vessel (a tanker barge) and the tugboat (the alleged third party) towing it, on the basis that the act or omission of the tugboat was that of an interposed third party). Section 1321(p) of the Act requires each vessel to maintain evidence of financial responsibility to meet the liability to which it could be subjected under § 1321. Zito, the owner of the BIG SAM, argues that 46 C.F.R. § 542.4(a), the federal regulation implementing § 1321(p), now prevents the non-operating owner from applying for a certificate of financial responsibility and, therefore, from protecting its interest against oil pollution liability. Although an applicant for such a certificate can establish evidence of financial responsibility in several ways, one of which is with insurance, 46 C.F.R. § 542.8, nevertheless, while the regulation does not require the owner to secure vessel insurance, neither does it prohibit him from doing so. If the owner is assured that the operator has in fact secured such insurance, a matter of course allocable by contractual responsibility, then obviously it need not do so. We therefore find that the liability of the owner and the operator under subsection (g) is not alternative but is instead" }, { "docid": "11895231", "title": "", "text": "THORNBERRY, Circuit Judge: In this appeal from judgment against the Government in its suit to recover clean-up costs under 33 U.S.C. § 1321 (1976) for an oil spill from appellee’s tanker barge, we must interpret the clause in section 1321(f)(1) that establishes a third-party defense for the owners of the discharging vessel. Because we conclude that the tugboat hired by the appellees in this case does not constitute a “third party” under section 1321(f)(1), we reverse the judgment and remand the case to the court below. I. Facts. The parties stipulated the facts as follows. LeBeouf is in the business of transporting petroleum products in tanker barges. In 1974 LeBeouf contracted with Bayou Marine Corporation to obtain a tug and crew that would tow the non-selfpropelled tanker barge LBT # 4 on an itinerary specified by LeBeouf. Bayou secured the M/V Harding R, a tug owned by Barracuda Marine Corporation. The tug crew loaded and unloaded LeBeouf’s cargo at the places and times designated in LeBeouf’s itinerary. LeBeouf engaged in no other supervision over the crew. In March 1974 the tug crew unloaded oil from the LBT # 4 at Westwego, Louisiana. A tug crewman who was working as a tankerman without a license, in violation of 33 C.F.R. § 155.710(a)(2) (1979), accidentally opened the wrong valve and discharged sixty barrels of crude oil onto the Mississippi River. Neither LeBeouf, Bayou, nor Barracuda cleaned up the oil spill. Finally the Coast Guard contracted to clean up the spill at a total cost of $38,689. The Government sued to recover this clean-up cost under the Federal Water Pollution Control Act, 33 U.S.C. § 1321, in March 1977. The district court dismissed the Government’s suit against LeBeouf because it concluded that the oil spill was caused by a “third party” under section 1321(f)(1). II. Third-Party Defense under Section 1321(f)(1). Under section 1321(f)(1) the owner or operator of the discharging vessel is liable to the Government for the costs of cleaning up an oil spill [ejxcept where an owner or operator can prove that a discharge was caused solely by (A) an act" }, { "docid": "948121", "title": "", "text": "its costs of cleaning up oil spilled into American waters. Section 1321(f) es tablishes a comprehensive remedial scheme providing for both strict liability up to specified limits and recovery of full costs upon proof of willful negligence or willful misconduct within the privity and knowledge of the owner. We must therefore start with a presumption that non-FWPCA maritime liabilities and remedies for oil spill cleanup costs of the United States have been preempted. This presumption is not rebutted by the language of the FWPCA. The remedies created by § 1321(f)(1) are established “notwithstanding any other provisions of law.” While various meanings can be drawn from this phrase, see United States v. Dixie Carriers, Inc., 627 F.2d 736, 739 (5th Cir. 1980); Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S.Ct. 1499, 59 L.Ed.2d 772 (1979); Note, Oil Spills, supra, 93 Harv.L.Rev. at 1772-73, we think it means that the remedies established by the FWPCA are not to be modified by any preexisting law. The main objective apparently was to assure that the limits on recoveries established by § 1321(f) are not to be varied by the different limits established by the Limitation Act. See In re Hokkaido Fisheries Co., 506 F.Supp. 631, 633-34 (D.Alaska 1981); G. Gilmore & C. Black, The Law of Admiralty 828 (2d ed. 1975). The “notwithstanding” phrase is not a preservation of preexisting bases of recovery. Nor do any of the savings clauses of the FWPCA aid the Government’s position. Section 511(a) of the Act, 33 U.S.C. § 1371(a), preserves the “authority or functions” of United States officers and agencies “not inconsistent” with the Act. It would torture the meaning of these words to interpret them as preserving “authority” of the United States to use non-FWPCA remedies to collect cleanup costs from discharging vessels. Elsewhere in the Act, when Congress sought to preserve a preexisting liability and remedy — the liability of vessel owners for damages to property from oil spills, 33 U.S.C. § 1321(o)(l) (1976), precise language was used, disclaiming any effect upon" }, { "docid": "948123", "title": "", "text": "vessel owners’ “obligations” under any provision of law. Moreover, § 1321(o) itself demonstrates that Congress used the term “authority” to mean something other than pursuing a legal remedy. Subsection (3) of § 1321(o) preserves certain aspects of federal “authority” (not pertinent to cleanup costs), thereby indicating, by comparison with subsection (l)’s reference to vessel owners’ “obligations” that “authority” does not refer to the right to collect upon an owner’s liability. In any event, whatever “authority” is preserved by § 1371(a) must be consistent with the Act, thereby raising the issue, to be considered infra, whether non-FWPCA remedies would be consistent with the remedies of § 1321(f). See Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 616 (4th Cir. 1979). The liability that is preserved by § 1321(oXl) concerns only damage to property and does not include recovery of oil removal costs, Steuart Transportation Co. v. Allied Towing Corp., supra, 596 F.2d at 616; United States v. Dixie Carriers, Inc., 627 F.2d at 741-42, at least in circumstances like this case where the Government incurred cleanup costs in the exercise of its responsibilities for navigable waters and not in connection with restoring damaged Government property. Arguably of more significance is § 1321(h)(2), which preserves the Government’s rights against “any third party whose actions may in any way have caused or contributed to” an oil spill. See United States v. Redwood City, 640 F.2d 963, 969-70 (9th Cir. 1981); Burgess v. M/V Tamano, 564 F.2d 964, 983 (1st Cir. 1977), cert. denied, 435 U.S. 941, 98 S.Ct. 1520, 55 L.Ed.2d 537 (1978); United States v. Bear Marine Services, 509 F.Supp. 710 (E.D.La.1980), appeal pending No. 81-3251 (5th Cir.). This clause does not directly aid the Government’s claim because cleanup costs are sought in this case from the discharging vessel’s owner, and not from a third party. Nevertheless the existence of subsection (h) lends some support to the Government’s position. It would be anomalous, the Government contends, for Congress to preserve non-FWPCA remedies against third parties (including vessels) if it had intended to abolish such remedies against discharging vessels and their" }, { "docid": "17072567", "title": "", "text": "may have against any third party whose acts may in any way have caused or contributed to such discharge. 33 U.S.C.A. § 1321(h) (Supp.1977). The issue then becomes whether the penalty imposed by Section 1321(b)(6) is a “liability” so as to provide a basis for indemnity. The parties draw support for their indemnity theory by pointing to the penalty provided in 33 U.S.C.A. § 1321(b)(2)(B)(iii) (Supp. 1977) which imposes a “penalty” in lieu of cleanup costs where it is impossible to remove a hazardous substance from the water. This penalty, unlike that of Section 1321(b)(6), is denominated a “liability” and is subject to the defense of third party causation. Clearly, no indemnity could have been sought had the penalty been construed as criminal, intended to punish the actor. The weight of current authority, discussed above, has concluded that this particular penalty is civil and, therefore, the claimed right to indemnity is at least tenable. However, the penalty imposed in lieu of clean-up costs correlates not to the penalty provision at issue here, but rather to the Government’s action for the actual costs of clean-up. Both of these actions recognize the third party defense, and, thereby, implicitly provide a ground for indemnity. The absence of a third party defense in this penalty provision, the language of the statutes, and the purposes of the various remedies supplied to the Government, lead to the conclusion that no indemnity right was contemplated for the penalty imposed by Section 1321(b)(6), even though it is civil in nature. Finally, the Government urges that the “flotilla rule” should apply not only to determine the correct limitation amount but also the possible imposition of the fine on the third party, Tug Ocean Prince. Both the penalty provision, Section 1321(b)(6), and the provision governing primary liability for cleanup costs, Section 1321(f), impose liability on the “owner or operator of a vessel.” It is at least a tenable construction of the statutory language, as applied to the facts of case, that “operator” should be construed to include to a tug operating a “dumb” barge. It is uncertain whether this construction" }, { "docid": "23120488", "title": "", "text": "a subject and a starting point for ascertaining federal common law. Illinois v. City of Milwaukee, 406 U.S. 91, 91, 92 S.Ct. 1385, 1385, 31 L.Ed.2d 712 (1972). Neither statutes nor decisions of a particular state can be conclusive when fashioning federal law. The Federal Water Pollution Control Act (FWPCA) was codified pursuant to the Congressional policy prohibiting oil or hazardous substance discharges into navigable waters of the United States. 33 U.S.C. § 1321(b)(1). The owner or operator of a vessel which illegally discharges may be jointly and severally liable to the government for its expenses in cleaning up the substances. Id. at § 1321(b)(2)(B)(ii); United States v. M/V Big Sam, 681 F.2d 432, 439 (5th Cir.1982); Tex-Tow, 589 F.2d at 1314; In Re Berkley Curtis Bay Co., 557 F.Supp. 335, 339 (S.D.N.Y.1983); aff’d in part and rem in part, 697 F.2d 288 (2d Cir.1983); United States v. Hollywood Marine, Inc., 519 F.Supp. 688, 692 (S.D.Tex. 1981), rev’d on other grounds, 625 F.2d 524 (5th Cir.1980). In fact, the pertinent language of the two statutes addressing liability and contribution is strikingly similar. Compare 33 U.S.C. § 1321(f)(1) with 42 U.S.C. § 9607(a), (b), and 33 U.S.C. § 1321(h) with 42 U.S.C. § 9607(e)(2). While the complementary policies and comparable language of FWPCA and CERCLA are persuasive points, a blanket adoption of the joint and several liability standard of § 1321 would be inconsistent with the legislative history of CERCLA. Typically, as in this case, there will be numerous hazardous substance generators or transporters who have disposed of wastes at a particular site. The term joint and several liability was deleted from the express language of the statute in order to avoid its universal application to inappropriate circumstances. An examination of the common law reveals that when two or more persons acting independently caused a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused. Restatement (Second) of Torts, §§ 433A, 881 (1976); Prosser," }, { "docid": "12564343", "title": "", "text": "in Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), and in United States v. Ira S. Bushey & Sons, Inc., 363 F.Supp. 110 (D.Vt.), aff’d mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974), which cases the committee discusses on the page previous to the quoted passage. The statement about reimbursement of cleanup costs refers only to section 1321(f)(1), whose maximum liability requirements the committee recognizes in the paragraph previous to the quoted passage. The statement about recovery for damages, as opposed to general cleanup costs, is consistent with section 1321(o)(l), which expressly allows the government to recover for property damages actually suffered from an oil spill. Neither the committee report nor Representative Dingell’s quotation from the report can be meaningfully interpreted as a statement that the FWPCA allows the government to recover cleanup costs under additional legal theories. In addition to the scheme for government recovery of cleanup costs in section 1321(f)(1), Congress expressly allows some other specific remedies in the event of oil spills. Section 1321(o)(1) states that the FWPCA should not affect or modify the remedies of any private or public party, including the government, to recover for actual damage to property from an oil spill. Section 1321(o)(2) states that the FWPCA does not preempt a state from imposing separate liability for oil spills on water within its borders. See Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973) (FWPCA) does not preempt state strict liability for oil spills). Section 1321(h)(2) states that the FWPCA does not affect the rights which the United States may have against a third party whose actions caused an oil spill. See United States v. LeBeouf Brothers Towing Co., 621 F.2d 787 (5th Cir. 1980) (third party defense under section 1321(f)(1) for oil spill from barge does not extend to tug towing barge at time of spill). No such express language allows the government to recover its cleanup costs under the Refuse Act or common law. In the" } ]

[ { "docid": "19017200", "title": "", "text": "S&R had established that there are substantia] questions going to the merits to make them a fair ground for litigation by raising factual questions as to the likelihood of public confusion resulting from McGraw-Hill’s use of S&R’s trademark. McGraw-Hill appealed and we assumed jurisdiction under 28 U.S.C. § 1292(a)(1). The grant of a preliminary injunction lies within the sound discretion of the district court; its action will not be disturbed unless there is an abuse of that discretion, Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), or a clear mistake of law, Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1358 (2d Cir. 1976). Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973), articulates the test for issuance of a preliminary injunction in this circuit: a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. These tests apply where a preliminary injunction is sought as relief from alleged trademark infringement. See, e. g., Charlie’s Girls, Inc. v. Revlon, 483 F.2d 953, 954 (2d Cir. 1973). Since Triebwasser & Katz, supra, 535 F.2d 1356, decisions of this court have insisted that under the second prong of the Sonesta test the moving party must make a showing of possible irreparable harm. New York Association of Homes for the Aging v. Toia, 559 F.2d 876, 880 (2d Cir. 1977); State of New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 750 (2d Cir. 1977); Jacobson & Co. v. Armstrong Cork Co., 548 F.2d 438, 441 n. 3, 444-45 (2d Cir. 1977). See generally Mulligan, “Preliminary Injunction in the Second Circuit,” 43 Brooklyn L.Rev. 831 (1977). Judge Duffy rested his finding of possible irreparable injury at least in part upon a determination that publication of the McGraw-Hill book might render the “SCRABBLE” trademark generic. This appears a sufficient basis. Federal trademark" } ]

[ { "docid": "22773661", "title": "", "text": "to induce investments must allege particular facts demonstrating the knowledge of defendants at the time that such statements were false. 3. The Forum-Selection Clame Paragraph 22 of the Broadway Associates Limited Partnership Agreement provides that in all actions arising out of the Partnership Agreement or breach thereof, the parties agreed to confer exclusive jurisdiction upon the Supreme Court of New York, New York County. Pursuant to this provision, the district court dismissed the limited partners’ claims based on state and common law and the Securities Act of 1933. Forum-selection clauses are not disfavored in the law. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 518 (1974); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). As Judge Friendly noted in AVC Nederland B.V. v. Atrium Investment Partnership, 740 F.2d 148, 156 (2d Cir.1984), “[tjhere can be nothing ‘unreasonable and unjust’ in enforcing such an agreement; what would be unreasonable and unjust would be to allow one of the [parties] to disregard it.” Plaintiffs, sophisticated investors who warranted their familiarity with the agreement, have failed to offer any reason for us not to enforce the forum-selection clause in this case. 4. Denial of Preliminary Injunctive Relief In order to obtain a preliminary injunction, plaintiffs were required to show both irreparable harm and either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly toward the moving party. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). In denying plaintiffs’ preliminary injunction request, the district court found that plaintiffs’ allegations implicated only the potential loss of their investment — economic injury that, because it does not constitute irreparable harm, is insufficient to justify the granting of a preliminary injunction. Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8,12 (2d Cir.1982); KMW International v. Chase Manhattan Bank, N.A., 606 F.2d 10, 14-15 (2d Cir. 1979). The decision to grant or deny preliminary injunctive relief rests in the sound discretion of the" }, { "docid": "20019077", "title": "", "text": "Groveman and Schleger. Schleger further states he is not operating any computer company which uses the trade name ‘Panther’ out of my father’s office.... Indeed, Panther Computer Systems is no longer transacting business of any sort. Schleger’s Federal Affidavit, at p. 15. While this may be true as of the date of the affidavit, absent from his affidavit is any denial he did not do these acts from January 16, 1991, the date Panther Computer Systems was incorporated, until mid-May of 1991. In particular, defendants’ affidavit does not contest plaintiffs’ allegations that Randy Schleger misrepresented that he was somehow still affiliated with Panther Systems Ltd. and that Groveman was \"no longer with the company.” Groveman Affidavit, at pp. 24-25. Based on plaintiffs contentions and defendants often non-responsive and contradictory answers to interrogatories and responses to plaintiffs’ allegations made under oath, the court recommends that the preliminary injunction be granted in accordance with the discussion below. DISCUSSION In order to obtain a preliminary injunction, the movant must demonstrate “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see also Warner Bros. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981) (applying Jackson Dairy standard to trademark infringement case). Based on the above facts, this court finds there is a more than sufficient basis to enjoin defendants from certain of their activities. The seriousness of the allegations, the potential breaches of defendants’ fiduciary duty to Lloyd Groveman and Panther Systems Ltd., the inconsistencies of defendants responses, the evidence of actual confusion and the likelihood of intentional misconduct on part of defendants lead inescapably to the granting of a preliminary injunction. The question is the extent of the injunction. A. The Panther Systems Ltd. Entity 1. Corporation In 1989, Panther Systems Ltd. was incorporated in Delaware. The incorporator was Lloyd" }, { "docid": "22900593", "title": "", "text": "July 1 and 2, and the matter was argued and fully submitted on July 10, 1991. On July 31,1991, the district court issued an opinion, 768 F.Supp. 1036, denying Laureyssens’ motion for a preliminary injunction based on copyright infringement, but granting Laureyssens’ motion on the grounds that Idea Group’s flat-form, shrink wrapped SNAFOOZ packaging raises a serious question of trade dress infringement under section 43(a) of the Lanham Act and under the New York common law of unfair competition. A corresponding order issued on August 7, 1991 preliminarily enjoined Idea Group from “marketing its SNAFOOZ puzzles ... in flat form and in transparent packaging, unless the puzzle package contains an assembled SNAFOOZ puzzle.” This appeal and cross-appeal followed. II. A party seeking a preliminary injunction must establish (1) irreparable injury and (2) a likelihood of success on the merits or a sufficiently serious question going to the merits and a balance of hardships tipping decidedly in the moving party’s favor. Stormy Clime Ltd. v. Progroup, Inc., 809 F.2d 971, 973-74 (2d Cir.1987); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). We review the district court’s decision to grant a preliminary injunction for an abuse of discretion. See Stormy Clime Ltd., 809 F.2d at 974 (involving claim of trade dress infringement); Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966) (involving claim of copyright infringement). We examine first the merits of Laureyssens’ claims. A. Trade Dress Infringement under section 43(a) of the Lanham Act To prevail on a claim of trade dress infringement under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988), a plaintiff must demonstrate that the product’s appearance has acquired secondary meaning and that purchasers are likely to confuse the imitating goods with the originals. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991). The defendant may avoid liability, however, by proving that the trade dress is not worthy of protection under the trademark law because it is functional. Id.; see also Restatement (Third) of Unfair Competition §§ 16, 17 comment a at" }, { "docid": "23110579", "title": "", "text": "OAKES, Circuit Judge: This appeal is from a grant of a preliminary injunction in favor of The Republic of the Philippines (“The Republic”) by the United States District Court for the Southern District of New York, Pierre N. Leval, Judge. The injunction continued an expiring temporary restraining order conditioned on the posting of a bond of $3 million against the transfer or encumbrance of five pieces of real property (the “properties”), four of which are located in New York City and one of which is in Long Island, New York. Judge Leval found that The Republic of the Philippines had met the standard under Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam), for issuing a preliminary injunction by “amply show[ing] ‘sufficiently serious questions going to the merits to make them a fair ground for litigation’ together with irreparable harm and a balance of hardships tipping in [the Republic’s] favor.” Order of May 2, 1986, as amended May 5, 1986 (quoting Jackson Dairy, 596 F.2d at 72). 634 F.Supp. 279. At the heart of this case is the issue of who owns the five properties, which consist of the following: 1. 40 Wall Street, a 71-story office building owned by Nyland (CF8) Ltd., a Netherlands Antilles corporation which in turn is owned by three Panamanian corporations that issued “bearer” shares to unknown persons. 2. The Crown Building, previously the Genesco Building, at 57th Street and Fifth Avenue, owned by The Canadian Land Company of America, formerly a Netherlands Antilles corporation called Lastura Corporation, which in turn is owned by three other Panamanian corporations that also issued “bearer” shares. 3. Herald Center, previously the Kor-vette Building, at Sixth Avenue and 34th Street, which is owned by Herald Center Ltd., formerly Voloby Ltd., a British Virgin Islands corporation. Herald Center Ltd. is owned by three other Panamanian corporations, again issuers of “bearer” shares. (These three properties have been managed by the appellants Joseph and Ralph Bernstein, and will sometimes be referred to as the Bernstein properties.) 4. 200 Madison Avenue, at the southwest corner" }, { "docid": "4187695", "title": "", "text": "MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: This case is before the Court on plaintiff’s motion for preliminary injunction, Fed.R. Civ.P. 65(a), respecting claims of copyright infringement, 17 U.S.C. § 501 et seq., and common law trademark infringement under the Lanham Act, 15 U.S.C. § 1125(a). Defendant cross moves for summary judgment on the copyright claims. Fed.R.Civ.P. 56. The Court has subject matter jurisdiction over the claims raised herein under 28 U.S.C. § 1338(a); personal jurisdiction over the defendant is uncontested and venue is proper in this forum. 28 U.S.C. § 1400(a); § 1391(b), (c). Before a preliminary injunction will issue, the movant must demonstrate likely irreparable harm and either probable success on the merits or serious litigable questions going to the merits coupled with a balance of hardships tipping decidedly in the movant’s favor. E. g., Jackson Dairy, Inc. v. H. P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979). Summary judgment, of course, requires that there is no genuine issue as to any material fact so that the Court may enter judgment as a matter of law. Rule 56(c). For the following reasons, I conclude that plaintiff is entitled to a preliminary injunction on its Lanham Act claims; and that defendant is entitled to summary judgment dismissing the copyright infringement claims. I. FINDINGS OF FACT Plaintiff Russ Berrie & Co., Inc. (“Berrie”), a New Jersey corporation with its principal place of business in that State, is the second largest manufacturer of stuffed toy animals in the United States. In this suit, Berrie charges defendant Jerry Eisner Co., Inc. (“Eisner”), a medium sized competitor incorporated in New York, with infringing three of its copyrighted plush toy designs — a stuffed Santa Claus figure, style # 195; a plush Christmas teddy bear, trimmed and capped in red, style # 181; and a thumb-sucking stuffed gorilla, style # 595. Eisner’s use of the name “Congo” in connection with sales of the latter toy is also alleged to infringe Berrie’s trademark “Gonga” used for its gorilla. Santa and Christmas Bear Berrie is the holder of certificates of copyright registration, issued" }, { "docid": "22134733", "title": "", "text": "1317 (2d Cir. 1969) (per curiam). B. The Standard For Granting a Preliminary Injunction in This Circuit. This Circuit has long provided two alternative tests for the grant of a preliminary injunction. The tests both require a finding of irreparable injury and differ regarding the potential for success on the merits which the plaintiff is able to demonstrate at this early stage of the litigation. A recent statement of these tests is found in Seaboard World Airlines, Inc. v. Tiger International, Inc., 600 F.2d 355, 359-360 (2d Cir. 1979), quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam): Preliminary injunctive relief in this Circuit calls for a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Accord, Caulfield v. Board of Education of the City of New York, 583 F.2d 605, 610 (2d Cir. 1978); Triebwasser & Katz v. American Telephone & Telegraph Co., supra, 535 F.2d at 1358-59; Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247 (2d Cir. 1973); Mulligan, Foreword — Preliminary Injunctions in the Second Circuit, 43 Brooklyn L.Rev. 831 (1977). In the present case Judge Haight granted the preliminary injunction on the basis of his findings of irreparable injury, a substantial question amounting to a fair ground for litigation, and a balance of hardships tipping decidedly in Kahn’s favor. This Court recognized in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., supra, 596 F.2d at 72, that “[a]s to the kind of irreparable harm that the party must show, the language of some past cases has suggested to some a spectrum ranging from possible to probable, which is defined as ‘not remote or speculative but . . . actual and imminent.’ ” Judge Haight relied on the formulation of the test stated in Caulfield v. Board of Education of the City of New York, supra, 583" }, { "docid": "7616083", "title": "", "text": "Edison, as chief executive officer, had the power to take such steps as were necessary to place the UK subsidiaries in administration proceedings in order to preserve MTi’s assets for the benefit of its creditors and shareholders. Hence, defendants quite plainly are not entitled to summary judgment. Defendants’ Preliminary Injunction Motion Defendants next seek a preliminary injunction “directing plaintiff to take any necessary steps to temporarily suspend the Administrative [sic ] Proceedings currently pending in London, England.” In order to obtain a preliminary injunction, the movant ordinarily is obliged to demonstrate “(a) irreparable harm and (b) either the likelihood of success on the merits or (c) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardship tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Where the injunction sought, however, is mandatory — that is, where, inter alia, the injunction “will alter, rather than maintain, the status quo” — the movant “must make a ‘clear’ or ‘substantial’ showing of a likelihood of success” on the merits. Jolly v. Coughlin, 76 F.3d at 473. In either case, a clear showing of a threat of irreparable harm is essential. E.g., Triebwasser v. American Tel. & Tel. Co., 535 F.2d 1356, 1359 (2d Cir.1976). “Absent such a threat, there is no occasion to consider either the merits or the balance of hardships.” Holford USA Ltd., Inc. v. Cherokee, Inc., 864 F.Supp. 364, 371 (S.D.N.Y.1994). Irreparable Injury When the Court heard defendants’ application to vacate the temporary restraining order, it was persuaded that the risk of any irreparable changes in Holdings or Trading was speculative. MTi’s counsel assured the Court that no material asset sales were in prospect, and it appeared that no more was underway than the rationalization to conserve cash that usually follows the commencement of a corporate reorganization. It now appears that the Court was led to an erroneous impression. In view of the advertisement in the Financial Times, defendants have suggested with considerable force that" }, { "docid": "23108261", "title": "", "text": "be removed to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1441 (1982). Hasbro subsequently amended its complaint without objection to assert a claim under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982). In October 1987, after referral upon stipulation of the parties to Magistrate Buchwald, approved by the district court (Duffy, J.), the magistrate held a hearing on the motion for a preliminary injunction. In an opinion rendered on November 18,1987 the magistrate denied Hasbro’s motion. Hasbro, Inc. v. Lanard Toys, Ltd., 87 Civ. 6214 (S.D.N.Y. Nov. 18, 1987). Hasbro brought this expedited interlocutory appeal as of right pursuant to 28 U.S.C. § 1292(a)(1) (1982). We reverse. DISCUSSION In order to obtain a preliminary injunction, Hasbro must demonstrate “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see Warner Bros. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981) (Jackson Dairy standard applies in trademark infringement cases). In a Lanham Act case a showing of likelihood of confusion establishes both a likelihood of success on the merits and irreparable harm, see Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 1311, 1314 (2d Cir.1987); Standard & Poor’s Corp. v. Commodity Exch., Inc., 683 F.2d 704, 708 (2d Cir.1982); Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir.1971), assuming that the plaintiff has a protectible mark. I Protectibility of Hasbro’s Mark The first question to be resolved is whether Hasbro’s unregistered mark is entitled to protection under the Lanham Act. The four categories that measure the degree of protection a mark merits are, in ascending order of protection, generic, descriptive, suggestive, and arbitrary or fanciful. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976)." }, { "docid": "18075563", "title": "", "text": "balance of hardships tipped decidedly in Arrow’s favor because any harm to Richards brought about by the injunction could be compensated by money damages, while in the absence of an injunction Arrow might suffer “the irreparable harm of loss of good will which is not compensable in money damages.” A written order was filed on February 22, enjoining Richards, as requested, (1) from “directly or indirectly displaying to potential customers a product of Plaintiff which bears an indicia [sic] of manufacture by Defendant Hugh Richards, or which is displayed in such manner as to create the impression that it is a product of Defendant Hugh Richards”; and (2) from “filling any orders for the ‘Uni-Foil’ for which samples were received by the New York City Transit Authority in about August 1981, or at any time thereafter.” Richards appeals from this order, contending principally that Arrow would not have been irreparably harmed had no preliminary injunction issued and that the balance of hardships does not tip decidedly toward Arrow. We reject these contentions insofar as Richards has been enjoined from designating Arrow products as its own, but find merit in the contention that Arrow did not show a likelihood of irreparable injury absent an injunction against Richard’s performance of the subcontracts. DISCUSSION It is well-settled in this Circuit that a preliminary injunction may be granted only upon “a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir. 1982) (quoting Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)). If the moving party has established these elements, the granting of the injunction may be reversed only if the district court has abused its discretion. Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975)" }, { "docid": "22467502", "title": "", "text": "That section’s prohibition, creating a felony, had been in effect since November 1, 1986. II. DISCUSSION On appeal, Plaza argues principally that the district court erred in applying only a likelihood-of-success test in ruling on the preliminary injunction motion and that, even under that test, the injunction should have been granted. We conclude that the court did not apply an improper standard and that its denial of the injunction was not an abuse of discretion. A. The Standard for Deciding a Motion for Preliminary Injunction In general, the district court may grant a preliminary injunction if the moving party establishes (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party. See, e.g., Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir.1982); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). We have held, however, that where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous fair-ground-for-litigation standard and should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim. See, e.g., Union Carbide Agricultural Products Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981); Medical Society of the State of New York v. Toia, 560 F.2d 535, 538 (2d Cir.1977). In the latter case, brought by physicians, patients, and a medical society challenging certain Medicaid regulations, we reversed the order of the district court which had granted a preliminary injunction against enforcement of the regulations using the fair-ground-for-litigation branch of the test. We stated that “where the grant of interim relief may adversely affect the public interest in a manner which cannot be" }, { "docid": "759920", "title": "", "text": "a district court should the management omit the proposals from the company’s proxy statement.” Goldin Affidavit In Support of Motion for Preliminary Injunction, Exhibit 1. In light of Borak, and the decisions of this court vindicating a private right of action brought to contest the exclusion of shareholder proposals, we conclude that NYCERS can seek an interpretation of Rule 14a-8 as applied to its particular proposal in this court. The standard for issuance of a preliminary injunction in this circuit is the showing of “(a) irreparable harm, and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons Inc., 596 F.2d 70, 72 (2d Cir.1979). Irreparable harm occurs “where there is a continuing wrong which cannot be adequately redressed by final relief on the merits.” New York Pathological and X-Ray Laboratories, Inc. v. Immigration and Naturalization Service, 523 F.2d 79, 81 (2d Cir.1975). Brands claims that NYCERS cannot claim irreparable injury because the court possesses the power to order the resolieitation of proxies if plaintiff ultimately prevails on the merits at trial, Defendant’s Memorandum of Law in Opposition to Motion for Preliminary Injunction at 42, and cites decisions by this court in which the shareholders failed to obtain preliminary relief. These cases are inapposite. In Catalano v. Trans World Corporation, No. 83 Civ. 1771, slip op. (S.D.N.Y. March 18, 1983) (Brieant, J.) plaintiffs— family members — unsuccessfully sought an order requiring six separate proposals to be included in a proxy solicitation, contrary to SEC regulations which permit only two. To the extent the proposals suggested waste, corporate wrongdoing, or management’s breach of fiduciary duty, the court held that plaintiff shareholders had an “adequate remedy without recourse to the Annual Shareholders Meeting or the proxy solicitation materials.” Id. at 5. The court suggested that plaintiffs request that the Board of Directors bring a lawsuit against the malefactors and, if that request is denied," }, { "docid": "10212288", "title": "", "text": "an injunction under section 105(a) is akin to a preliminary injunction and the test for determining whether a preliminary injunction should issue must be met. The Courts have adopted various tests. In the First and Eighth Circuits the party seeking such relief must establish that: (1) the plaintiff will suffer irreparable injury if the injunction is not granted; (2) the plaintiff has exhibited a likelihood of success on the merits; (3) the injury outweighs any harm which granting injunctive relief would inflict on the defendant; and (4) an injunction will not adversely affect the public interest. Auburn News Co., Inc. v. Providence Journal Co. (1st Cir.) 659 F.2d 273, 277; Dataphase Systems, Inc. v. C.L. Systems, Inc., (8th Cir.) 640 F.2d 109, 114. In this Second Circuit the test for the issuance of a preliminary injunction is: (1) the possibility of irreparable harm if an injunction does not issue, and (2) the probability that the party seeking the preliminary relief will succeed on the merits. Sanders v. Airline Pilots Association International 473 F.2d 244, 248 (2d Cir.); Dino DeLaurentiis Cinematografica S.P.A. v. D-150, Inc. 366 F.2d 373, 375 (2d Cir.1966). See also In Re Ackerman (Bankr.S.D.N.Y.1983) 28 B.R. 509 where the test is expressed as follows: “The standard in the Second Circuit for the issuance of a preliminary injunction requires movant to show possible irreparable injury and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Caulfield v. Board of Education of the City of New York, 583 F.2d 605, 610 (2d Cir.1978); see Jackson Dairy Co. v. H.P. Hood, Inc. 596 F.2d 70, 72 (2d Cir.1979); Friarton Estate Corp. v. City of New York, 681 F.2d 150, 152 n. 2 (2d Cir.1982).” The court also deems it important to note the following comment by Justice Cardozo in Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936) viz: “the power to stay proceedings is coincidental" }, { "docid": "23172230", "title": "", "text": "1292(a). DISCUSSION For a preliminary injunction to issue in this Circuit, the movant must show: Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam); see Friarton Estates Corp. v. City of New York, 681 F.2d 150, 152 n.2 (2d Cir. 1982); Arrow United Industries, Inc. v. Hugh Richards, Inc., 678 F.2d 410 (2d Cir. 1982). Our review of the grant of a preliminary injunction is limited to determining whether the trial court abused its discretion. Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2563, 45 L.Ed.2d 648 (1975). Further, the trial court’s factual findings are subject to the clearly erroneous standard of review. Fed.R.Civ.P. 52(a). Inwood Laboratories, Inc. v. Ives Laboratories, Inc., - U.S. -, -, 102 S.Ct. 2182, 2189, 72 L.Ed.2d 606 (1982). Accordingly, we may only disturb a trial court’s findings in instances where review of the record leaves “the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. We turn our attention to the two primary legal bases upon which the preliminary equitable relief was grounded, i.e., trademark infringement, including misrepresentation of source, and misappropriation. A. Trademark Claims The heart of a successful claim based upon §§ 32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a), and common law trademark infringement is the showing of likelihood of confusion as to the source or sponsorship of defendant’s products. Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 687 F.2d 563, 574 (2d Cir. 1982); Berlitz Schools of Languages of America, Inc. v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980). In the preliminary injunction context, a showing of likelihood of confusion as to source or sponsorship establishes" }, { "docid": "13455485", "title": "", "text": "PER CURIAM: Mattel, Inc. (Mattel), the manufacturer of a popular series of 5⅕\" action figure toy dolls sold under the registered trademark name of “Masters of the Universe,” brings an expedited appeal from a decision of the United States District Court for the Southern District of New York, Richard Owen, Judge. Judge Owen refused to issue a preliminary injunction against Azrak-Hamway International, Inc. (Remco), and certain Remco officials, to stop production and sale of Remco’s series of 52½\" action figure toy dolls titled the “Warlords,” which were designed to compete with Mattel’s “Masters of the Universe” dolls. Mattel claims that by producing and selling the “Warlord” dolls, Remco infringes upon Mattel’s registered copyright in the “Masters of the Universe” dolls in violation of 17 U.S.C. §§ 106, 501 (Supp. V 1981), its federal trademark rights in violation of 15 U.S.C. §§ 1115(b), 1125(a) (1976), and its common law right under New York law to be protected against unfair competition. The standard in the Second Circuit for injunctive relief, as set forth, e.g., in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979), requires a showing of two things, first, irreparable harm and, second, “either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Judge Owen held that Mattel did not make a showing that either prong of the second requirement was met. We agree. The “Masters of the Universe” dolls are a series of dolls with different heads, clothing, and names, but all sharing a common torso, which is a sculptor’s exaggerated rendering of a bodybuilder’s body with shortened legs. Likewise, the Remco series of dolls all share a body with overdeveloped musculature and legs proportionately shorter than the average human being’s. The Remco dolls all have names, heads, feet, hands, and clothing different from the Mattel dolls, with their names and costumes designed so that the dolls represent certain comic book figures. The Remco" }, { "docid": "20019078", "title": "", "text": "of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see also Warner Bros. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981) (applying Jackson Dairy standard to trademark infringement case). Based on the above facts, this court finds there is a more than sufficient basis to enjoin defendants from certain of their activities. The seriousness of the allegations, the potential breaches of defendants’ fiduciary duty to Lloyd Groveman and Panther Systems Ltd., the inconsistencies of defendants responses, the evidence of actual confusion and the likelihood of intentional misconduct on part of defendants lead inescapably to the granting of a preliminary injunction. The question is the extent of the injunction. A. The Panther Systems Ltd. Entity 1. Corporation In 1989, Panther Systems Ltd. was incorporated in Delaware. The incorporator was Lloyd Groveman. The court notes that the “Certificate of Dissolution By Written Consent Of All Stockholders Entitled to Vote” {see Exhibit XD to Complaint and Demand for Jury Trial) indicates that Lloyd Groveman was the sole director and shareholder. The court is not aware of any corporate resolutions or bylaws which identify Panther Systems Ltd.’s officers or employees. Nor have defendants provided the court with any corporate documentation to establish that Randy Schleger is either a shareholder, officer or director of the corporation. Randy Schleger claims that his execution of a bank account resolution makes him a shareholder of Panther Systems Ltd. While both sides admit that Randy Schleger was a signatory to Panthers Systems Ltd.’s checking account, they disagree as to how that arose. Groveman states that Randy Schleger never had authorization to sign the resolution. Randy Schleger states that he was given signing privileges because he “was an equal partner in the business, and I thought, an equal shareholder.” Schleger’s Federal Affidavit, at p. 7. With regard to the banking resolution signed by Randy" }, { "docid": "22825548", "title": "", "text": "548 F.Supp. 1063, 1064-65 (E.D.N.Y.1982). The court discussed eases construing section 27 of the Trademark Act of 1905, the predecessor to section 42 of the Lanham Act, and section 526 of the Tariff Act of 1930. The court stated that it was deciding this case “upon the fundamental question of trademark law, whether or not the defendant’s use of the MAMIYA marks on medium format photographic equipment is likely to cause confusion with the plaintiff’s use of the mark.” Id. at 1079. The court concluded that “[i]t is clear that such a substantial likelihood of confusion exists in this case.” Id. II. DISCUSSION To obtain a preliminary injunction in this circuit, a party must make “a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see also Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78-79 (2d Cir.1981) (same standard applicable in trademark infringement cases). The moving party has the burden of proving each of these elements. Robert W. Stark, Jr., Inc. v. New York Stock Exchange, Inc., 466 F.2d 743, 744 (2d Cir.1972) (per curiam). “Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948, at 431 (1973) (footnote omitted). Cf. Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975) (“traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury”); Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 56, 95 S.Ct. 2069, 2075, 45 L.Ed.2d 12 (1975) (“irreparable harm necessary" }, { "docid": "10998792", "title": "", "text": "Plaintiffs argue that this activity will chill their associational rights by generating negative publicity about plaintiffs and discouraging future contributions from individuals who might otherwise have contributed. Applicable Standards Many courts have stated that a preliminary injunction is an “extraordinary” and “drastic” remedy, but it bears repeating. See Medical Society of the State of New York v. Toia, 560 F.2d 535 (2d Cir.1977); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319 (2d Cir.1969); Holiday Inns of America Inc. v. B & B Corp., 409 F.2d 614 (3rd Cir.1969). There is a heavy burden on the moving party to show that preliminary relief is appropriate. Robert W. Stark, Jr. Inc. v. New York Exchange, Inc., 466 F.2d 743 (2d Cir.1972); Dopp v. Franklin Nat. Bank, 461 F.2d 873 (2d Cir.1972); Berrigan v. Norton, 451 F.2d 790 (2d Cir.1971). In this Circuit the granting of a preliminary injunction must ordinarily be based on a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). See also Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir. 1981); Union Carbide Agricultural Products Co. v. Costle, 632 F.2d 1014, 1017-18 (2d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196; KMW International v. Chase Manhattan Bank, N.A., 606 F.2d 10, 14 (2d Cir.1979); Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758-59 (2d Cir.1979); Seaboard World Airlines, Inc. v. Tiger International, Inc., 600 F.2d 355, 359—60 (2d Cir.1979). However, defendants argue that the “fair ground for litigation” test does not apply in a case such as this, where the issuance of a preliminary injunction may adversely affect the public interest. They maintain that in order to establish a basis for preliminary relief, movants must demonstrate a likelihood of success of" }, { "docid": "1914740", "title": "", "text": "website and submitted to defendants, along with a registration fee of $19.95 and a self-produced videotaped performance. Performances are to be displayed on the Internet for judging by individuals at home who may download, view and vote on them. Under defendants’ plan, the online contest winners are to appear on a nationally televised competition to be broadcast four times a year on a major network. The television contest, which is to be called “The Next Big Star Show”, is to be hosted by Mr. McMahon and will be simulcast on the World Wide Web. Performers who reach the television competition are eligible to win cash awards up to $10,000.00 and other prizes. Plaintiff, upon learning of defendants’ plans as announced on January 25, 2000, moved on February 7, 2000 for a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure to restrain defendants from (a) using “Next Big Star” or “nextbigstar.com” as a trademark, trade name, Internet domain name or as part of a logo in connection with their new online talent competition or related television program and (b) taking any other actions designed or intended to infringe and dilute the value of plaintiffs trademarks, logo and domain name. This Court heard oral argument on February 22, 2000. II. CONCLUSIONS OF LAW A preliminary injunction is an extraordinary equitable remedy which places on the movant the burden of proving each element requisite for such relief. The decision to grant a preliminary injunction rests within the sound discretion of the Court. To obtain a preliminary injunction in this Circuit, the moving party must show (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). We now consider whether plaintiff has met its burden, addressing the second requirement first for reasons later explained. A. Likelihood Of Plaintiffs Success" }, { "docid": "285973", "title": "", "text": "shares and the 277,000 shares Salant owned before the tender offer, it has, at most, 446,000 or 8.3% of Manhattan’s total common. On the same day that the tender offer was announced, plaintiffs filed this suit seeking permanent and preliminary declaratory and injunctive relief establishing that (1) section 912 of the New York Business Corporation Law (the “Anti-Takeover” law) is unconstitutional on its face and as applied to the tender offer; (2) the tender offer constitutes an “All Shareholders-All Cash” tender offer which does not trigger the so-called penalty provisions of Manhattan’s shareholders’ Rights Plan ; and (3) voiding as ultra vires Manhattan’s Board’s February 9 amendment to its by-laws, which provides that if any shareholder or group of affiliated shareholders owns more than 40% of the outstanding shares entitled to vote, a majority of shares other than those held by the 40% shareholder is required to remove a director without cause. DISCUSSION In this Circuit, the standard for preliminary injunctive relief requires a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). “A preliminary injunction ‘is an extraordinary and drastic remedy which should not be routinely granted.’ ” Sapienza v. New York News, Inc., 481 F.Supp. 671, 673 (S.D.N.Y.1979). Only if plaintiffs demonstrate that the alleged threat of harm is “actual and imminent,” rather than merely “remote or speculative,” will preliminary relief be granted. E.I. duPont de Nemours and Co. v. Daggett, 610 F.Supp. 260, 264 (W.D.N.Y.1985). Accord Kaplan v. Board of Education of City School District, 759 F.2d 256, 259 (2d Cir.1985); Association of American Medical Colleges v. Carey, 482 F.Supp. 1358, 1368 (W.D.N.Y.1980). Moreover, where “mandatory relief is sought, as distinguished from maintenance of the status quo, a strong showing of irreparable injury must be made....” Doe v. New York University, 666 F.2d 761, 773" }, { "docid": "15168918", "title": "", "text": "to cease doing business and by others to closely monitor future issues for improvements before finally deciding whether to continue advertising in New York Magazine. From May to early August 1986, the management of News America held a series of internal meetings to discuss the printing situation. These led to a decision by News America to terminate the agreement with Litho, and on August 6, 1986, News America’s President Martin Sugar-man advised Litho’s President Eric Ferrat that the agreement would be terminated after the printing of the New York Magazine issue dated September 1, 1986. News America offered to “buy out” the contract for $2 million. On August 15, 1986, both parties demanded arbitration, and on August 19, 1986, Unimedia commenced this action before this Court. DISCUSSION The Second Circuit has stated that a preliminary injunction must issue where plaintiffs show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the' party requesting the preliminary relief.” Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co., 749 F.2d 124, 125 (2d Cir.1984); Jackson-Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979). Irreparable Harm In the first place, it is not seriously contended that the loss of the New York Magazine printing business will threaten the ability of plaintiff to continue in business or even seriously cripple it. The $6.5 million (Canadian) plaintiff earned from the New York Magazine in 1985 represented less than 4% of plaintiff’s total revenues of $179 million (Canadian). Yet, cases finding the irreparable injury which forms a necessary predicate for injunctive relief pending arbitration typically involve situations where “defendant’s proposed termination of plaintiff’s [contract] is likely to cause the plaintiff’s business to fold.” Newport Tire & Rubber Co. v. Tire & Battery Corp., 504 F.Supp. 143, 150 (E.D.N.Y.1980). For example, in Roso-Lino Distributors, Inc. v. Coca-Cola Bottling Company of New York, 749 F.2d 124, 126 (2d Cir.1984) the Second Circuit granted an injunction prior to" } ]

[ { "docid": "22353958", "title": "", "text": "settlement of the claims against Integrated and its officers and directors. Finally, the class received $4.9 million in settlement of its claims against Touche Ross. Total recovery was thus over $54 million. Although Judge Pollack had supervised the substantive settlement of several aspects of this case, it fell to Judge Kram to award attorneys' fees. Throughout the fee proceedings before Judge Kram, counsel maintained they should be awarded a simple percentage of the recovery as a fee, rather than having to submit to a review of their billed hours under the so-called “lodestar” method. Specifically, counsel sought 25% of the total recovery, or a total fee of $13.5 million. The first fee application was made in October 1992 with respect to the funds recovered from the Drexel bankruptcy. Judge Kram appointed Michael D. Hess as a special master to review the application. Special Master Hess’s initial Report and Recommendation recommended that counsel receive their requested 25% fee. Judge Kram, however, directed Mr. Hess to revise his recommendation and to base any fee award on counsel’s lodestar. Following an exhaustive review of counsel’s billed hours, and after reducing for various charges he found excessive, Mr. Hess submitted a second Report, this time recommending a lodestar award of $1,416,-572.75. Among other things, Mr. Hess noted that counsel sought then-current hourly rates, even though their billings spanned the three and one-half years preceding the fee petition. For example, the Milberg firm requested hourly fees for attorney time ranging from $125 to $500 per hour. Mr. Hess reasoned that allowing such then-current hourly rates was justified in order to compensate counsel for the delay in payment. By order dated June 10, 1993, Judge Kram adopted Mr. Hess’s recommendation but reduced counsel’s lodestar to $1,284,-704.80, citing, inter alia, “over 80 instances where the time records of Milberg Weiss, indicating meetings and telephone conferences with co-counsel, do not correspond with the time records of other counsel.” In the same order, Judge Kram explained that she had considered but rejected counsel’s contentions that they should be awarded fees on a percentage basis. Judge Kram also declined to" } ]

[ { "docid": "2478924", "title": "", "text": "fund — the $3.86 million total award of costs and fees here represents 52.2% of the entire $7.39 million recovered by plaintiffs. Such an “award does not constitute an abuse of discretion simply because it deviates materially from the percentage usually awarded in similar cases.” McDaniel v. County of Schenectady, 595 F.3d at 426 (internal quotation marks and alterations omitted); see also Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir.2000) (encouraging use of hours billed as “cross check” on percentage fee award). In short, although the district court was permitted to cap the fee request at standard contingency-fee levels, it was not required to do so where, as here, it concluded that higher fees were reasonably incurred. Finally, Gristede’s submits that an award of costs and attorney’s fees that equals or exceeds the pecuniary value of a significant cash settlement contravenes the goals of fee shifting. This argument overlooks the fact that the $3.53 million settlement reduces on average to $11,194 for each of the roughly 300 individual class members. While a rational actor might not pay $10,843 — the similarly prorated amount of attorney’s fees — to recover but a few hundred dollars more, “[t]he whole purpose of fee-shifting statutes is to generate attorneys’ fees that are disproportionate to the plaintiffs recovery.” Millea v. Metro-N. R.R. Co., 658 F.3d at 169 (emphasis in original) (holding that district court impermissibly limited attorney’s fees to one-third of $612.50 recovery on Family Medical Leave Act claim). Accordingly, the district court did not abuse its discretion by awarding attorney’s fees in an amount exceeding one-third of the settlement’s pecuniary value. 4. Expert Witness Costs Gristede’s faults the district court for reimbursing plaintiffs $306,918.64 in expert witness costs, arguing that such costs are not recoverable under the FLSA. Plaintiffs respond that recovery of expert witness costs is allowed by the partial final judgment entered by the district court, see Partial Final Judgment ¶ 3, Torris v. Gristede’s Operating Corp., No. 04 Civ. 3316 (S.D.N.Y. Oct, 6, 2011), ECF No. 421 (reciting that defendants remain liable for “attorneys’ fees, costs, and expenses" }, { "docid": "2080807", "title": "", "text": "its discretion in using the total fund amount as its benchmark. Id. at 1311. In Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423 (2d Cir.2007), the Court of Appeals for the Second Circuit reviewed a percentage-fee award based on funds claimed by class members rather than on the entire settlement fund, some of which would ultimately be distributed to a cy pres recipient. Finding that the District Court abused its discretion, the Circuit Court held that the percentage fee should have been calculated on the basis of the total fees made available because “[t]he entire [settlement] [f]und, and not some portion thereof, [was] created through the efforts of counsel.” Id. at 437. It noted, however, that a court may within its discretion decrease the percentage of the fund awarded (rather than the benchmark value of the settlement) in appropriate circumstances to prevent attorneys from being improperly enriched. Id. We think it unwise to impose, as Young requests, a rule requiring district courts to discount attorneys’ fees when a portion of an award will be distributed cy pres. There are a variety of reasons that settlement funds may remain even after an exhaustive claims process — including if the class members’ individual damages are simply too small to motivate them to submit claims. Class counsel should not be penalized for these or other legitimate reasons unrelated to the quality of representation they provided. Nor do we want to discourage counsel from filing class actions in cases where few claims are likely to be made but the deterrent effect of the class action is equally valuable. We appreciate, however, that awarding attorneys’ fees based on the entire settlement amount rather than individual distributions creates a potential conflict of interest between absent class members and their counsel. “Arrangements such as [these] ... decouple class counsel’s financial incentives from those of the class.... They potentially undermine the underlying purposes of class actions by providing defendants with a powerful means to enticing class counsel to settle lawsuits in a manner detrimental to the class.” Int'l Precious Metals Corp. v. Waters, 530 U.S. 1223, 1224," }, { "docid": "8342356", "title": "", "text": "the notice did not include the date of appellees’ motion for attorneys’ fees or indicate how class members could access the motion document. This argument reduces to a challenge to the form and content of the notice, which we review for abuse of discretion, see Masters v. Wilhelmina Model Agency, Inc., 473 F.3d at 438, and we detect none here. The notice clearly states that “Plaintiffs’ Counsel are moving the Court to award attorneys’ fees not to exceed twenty percent (20%) of the Gross Settlement Fund, and for reimbursement of expenses incurred in connection with the prosecution of this Action in the approximate amount of five million dollars ($5,000,000).” Notice of Pendency of Class Action and Proposed Settlement, Motion for Attorneys’ Fees and Settlement Fairness Hearing at 3. The notice also informed class members as follows: “[Y]ou can object to ... the application by Plaintiffs’ Co-Lead Counsel for an award of fees and expenses. You may write the Court setting out your objection.” Id. at 14. The notice provided the addresses of the court and all counsel, so that class members could appropriately serve their objections, and it informed class members of the fairness hearing, at which they could appear to express their disapproval. That many class members— not just the three appellants—submitted objections to the court confirms that the notice was reasonably directed to class members as required by Rule 23. 2. Reasonableness of Fee a. Contract Attorney Time Appellants submit that the fee award of $3,314,399.90 was unreasonable because the district court should not have included contract attorney time in its “lodestar” calculation. In fact, the district court did not employ the lodestar method. Rather, it used the percentage method, which considers “less objective” factors to determine a fair fee as a percentage of the common fund’s recovery. See Goldberger v. Integrated Res., Inc., 209 F.3d at 47. We identify no abuse of discretion in the district court’s thorough application of these factors. See Carlson v. Xerox Corp., 596 F.Supp.2d 400 (D.Conn.2009). Thus, appellants challenge only the district court’s lodestar cross check of its percentage fee determination. See," }, { "docid": "12380557", "title": "", "text": "Second Circuit panel recently held that attorneys’ fees awarded as a percentage of a common fund must take into consideration the entirety of the fund, not only that portion received directly by class members. Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir.2007). In Masters, a fund of nearly $22 million was established, but only $9.34 million was claimed by class members. Id. at 428, 431. The settlement agreement left disbursement of the remainder of the fund to the discretion of the court. Id. at 428. Class counsel’s request of fees and expenses was nearly $8.9 million. Id. The district court awarded $3.76 million in fees based on 40% of the value of claims made, rather than the entirety of the fund, separately allowing $1.6 million in expenses. Id. The Court of Appeals reversed, holding that: “The entire Fund, and not some portion thereof, is created through the efforts of counsel at the instigation of the entire class. An allocation of fees by percentage should therefore be awarded on the basis of the total funds made available whether claimed or not.” Id. at 437. In the typical common fund case such as Masters, there is an actual fund, or at least a fixed amount of money representing the extent of the defendant’s liability. Here, the Settlement Agreement establishes neither; it simply provides that Time Warner will satisfy those claims that are made by eligible class members, while retaining any unclaimed benefits. In a similar case, the court in In re TJX Cos. Retail Security Breach Litig., distinguished Masters and decisions like it, noting that in such cases, “there was an actual common fund — -whether created by settlement or judgment of the court — to which the pereentage-of-the-fund method of determining attorneys’ fees was applied. In contrast, the Agreement here creates no fund; it simply provides that TJX will pay claims on an as-made basis, subject to certain caps.” 584 F.Supp.2d 395, 403 (D.Mass.2008). The heart of the concern articulated by the TJX court is the risk that settlement agreements will be designed to give the appearance" }, { "docid": "16781628", "title": "", "text": "991 F.Supp.2d at 446 (“A graduated schedule ensures that the greater the settlement, the greater the fee, and it therefore avoids certain incentive problems that come from simply scaling an overall percentage down as the size of the fund increases.”). Attorneys should not fear that, at any point, by securing a larger award for the class, they will receive a smaller award. See id. at 446-47; see also In re Synthroid Mktg. Litig., 264 F.3d 712, 721 (7th Cir.2001). To apply a sliding scale requires a starting point. In the context of a class action settlement, it is unlikely that any private stakeholder is a reliable source of information. Plaintiffs’ counsel have every incentive to request high fees. Individual plaintiffs rarely have any incentive to object to a fee, while defendants do not care about the allocation of the settlement fund among the class members and their attorneys. See McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 418 (2d Cir.2010) (discussing the incentives of plaintiffs and defendants); In re Auction Houses Antitrust Litig., 197 F.R.D. 71, 77-78 (S.D.N.Y.2000) (discussing the collective action problem faced by dispersed class members). Historical data of fees awarded in common fund cases provides an unbiased and useful reference for comparing fees cases of similar magnitude as a starting point for the sliding scale. Professors Eisenberg and Miller’s 2010 empirical study examined data from nearly 700 common fund settlements between 1993 and 2008. Ei-senberg & Miller, supra at 251. Eisen-berg & Miller divided cases into ten ranges of recovery (deciles) based on the amount of the settlement, and then calculated the mean and median fee percent, as well as the standard deviation. Id. at 265. The value of the settlement here is $45.9 million, which puts this case in the eighth decile of cases with settlements between $38.3 million and $69.6 million. Id. at Ta ble 7. In that decile, the median fee was 21.9% of the fund with a standard deviation of 10%. Id. Professor Fitzpatrick similarly reviewed almost 700 class settlements, but limited to two years, 2006 and 2007. Fitzpatrick, supra at 811. He" }, { "docid": "2478923", "title": "", "text": "the degree of success obtained.’ ” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Plaintiffs’ successes here included procuring summary judgment on FLSA liability, see Torres v. Gristede’s Operating Corp., 628 F.Supp.2d 447, 457-62 (S.D.N.Y.2008), and achieving a significant monetary recovery (up to $38,000 per class member) as well as injunctive and other non-monetary relief. Moreover, even if this were a “common fund” case — which Gristede’s concedes it is not — ■we would not identify error in the fee award. As Gristede’s previously acknowledged, the district court would have remained “free to pick and choose” between the lodestar and percentage methods in determining a reasonable attorney’s fee. Hearing Tr. 5, J.A. 2938; see McDaniel v. County of Schenectady, 595 F.3d at 426. Calculated “on the basis of the total funds made available,” Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir.2007) — i.e., as if it were a common settlement fund — the $3.86 million total award of costs and fees here represents 52.2% of the entire $7.39 million recovered by plaintiffs. Such an “award does not constitute an abuse of discretion simply because it deviates materially from the percentage usually awarded in similar cases.” McDaniel v. County of Schenectady, 595 F.3d at 426 (internal quotation marks and alterations omitted); see also Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir.2000) (encouraging use of hours billed as “cross check” on percentage fee award). In short, although the district court was permitted to cap the fee request at standard contingency-fee levels, it was not required to do so where, as here, it concluded that higher fees were reasonably incurred. Finally, Gristede’s submits that an award of costs and attorney’s fees that equals or exceeds the pecuniary value of a significant cash settlement contravenes the goals of fee shifting. This argument overlooks the fact that the $3.53 million settlement reduces on average to $11,194 for each of the roughly 300 individual class members. While a" }, { "docid": "2478922", "title": "", "text": "court referenced Gris-tede’s’ litigation tactics only to explain why plaintiffs incurred such high attorney’s fees and not to sanction Gristede’s for defending the action as it did, there is no merit to the suggestion that the fee award penalized Gristede’s for exercising its constitutional rights. 3. Proportionality of Fee Award to Settlement Amount Arguing that the fee award is both disproportionate to plaintiffs’ success in the litigation and out of line with awards in “common fund” cases, Gristede’s submits that the “fee award in this case should have been no more than one-third.” Appellants’ Br. 49. On deferential abuse-of-discretion review, we disagree. The proportionality of the $3.42 million-fee award is not to be judged, as Gristede’s urges, against the dollar value of the $3.53 million settlement. See Kassim v. City of Schenectady, 415 F.3d at 252 (dispelling “notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation”). Rather, “ ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Plaintiffs’ successes here included procuring summary judgment on FLSA liability, see Torres v. Gristede’s Operating Corp., 628 F.Supp.2d 447, 457-62 (S.D.N.Y.2008), and achieving a significant monetary recovery (up to $38,000 per class member) as well as injunctive and other non-monetary relief. Moreover, even if this were a “common fund” case — which Gristede’s concedes it is not — ■we would not identify error in the fee award. As Gristede’s previously acknowledged, the district court would have remained “free to pick and choose” between the lodestar and percentage methods in determining a reasonable attorney’s fee. Hearing Tr. 5, J.A. 2938; see McDaniel v. County of Schenectady, 595 F.3d at 426. Calculated “on the basis of the total funds made available,” Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir.2007) — i.e., as if it were a common settlement" }, { "docid": "6473804", "title": "", "text": "of a percentage fee request. Id. at 763. Because courts tend to deviate only slightly from the requested percentage amount, plaintiffs’ counsel can effectively “manipulate the fee award they are likely to receive by simply requesting a higher percentage.” Id. The lodestar method, however, provides courts with an objective fee amount with which to compare the requested fee. The lodestar method can also guard against attorney windfalls. A court’s use of the percentage method “can result in a windfall for the plaintiffs’ attorneys because the size of the settlement does not necessarily reflect the skill, efficiency, and hard-work of counsel.” Id. “[A] large settlement could result from the mere happenstance that the class is large, even though the liability issue would be the same regardless of whether there were 8,000 or 80,000 class members.” Id.; see also In re Cendant, 243 F.3d 722, 736 (3d Cir.2001) (explaining that the basis for reducing the percentage fee awarded as the size of the common fund increases is that “in many instances the increase [in recovery] is merely a factor of the size of the class and has no direct relationship to the efforts of counsel.” (internal quotations omitted)). An application of the lodestar method ensures that “the fee award is still roughly aligned with the amount of work the attorneys contributed.” In re Cardinal Health, 528 F.Supp.2d at 764. Courts incorporate the lodestar method into the percentage method in two ways. First, as discussed above, courts often apply lodestar factors when assessing the reasonableness of attorneys’ fees under the percentage method. See In re Microstrategy, 172 F.Supp.2d at 786-87 (explaining that courts using the percentage method “reference the same case-specific factors many courts use to adjust, or determine a multiplier for, a lodestar figure.”). Many courts have also incorporated a “lodestar cross-check” into their review of a percentage-based attorneys’ fee. See Manual for Complex Litigation (Fourth) § 14.121 at 191; In re Royal Ahold N.V. Securities & ERISA Litig., 461 F.Supp.2d 383, 385 (D.Md.2006); see also Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 436 (2d Cir.2007); In re AT &" }, { "docid": "23454605", "title": "", "text": "Cir.2001) (internal quotations omitted). The standards employed calculating attorneys’ fees awards are legal questions subject to plenary review, but “[t]he amount of a fee award ... is within the district court’s discretion so long as it employs correct standards and procedures and makes findings of fact not clearly erroneous.” Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1184 (3d Cir.1995) (internal quotations omitted). The appointment of an expert to assist a district court in the performance of its duties is governed by Fed.R.Evid. 706 which provides a court “may appoint expert witnesses of its own selection,” and is re viewable under an abuse of discretion standard. Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1070-71 (9th Cir.1999). III. Kaufmann challenges the District Court’s conclusion that the $31.6 million fee request on the $126.6 million Rite Aid II settlement was reasonable. He contends the District ’Court erred in assessing the fees’ reasonableness under our jurisprudence governing fee awards and should have applied a declining percentage “sliding scale” principle to reduce the percentage-of-recovery to account for the magnitude of the settlement fund. He also contends the District Court erred in calculating the lodestar cross-check multiplier using the hourly rates of the most senior lawyers on the case. In assessing attorneys’ fees, courts typically apply either the pereentage-of-recov-ery method or the lodestar method. The percentage-of-recovery method is generally favored in common fund cases because it allows courts to award fees from the fund “in a manner that rewards counsel for success and penalizes it for failure.” Prudential, 148 F.3d at 333 (internal quotations omitted). The lodestar method is more typically applied in statutory fee-shifting cases because it allows courts to “reward counsel for undertaking socially beneficial litigation in cases where the expected relief has a small enough monetary value that a percentage-of-recovery method would provide inadequate compensation” or in cases where the nature of the recovery does not allow the determination of the settlement’s value required for application of the percentage-of-recovery method. Id. Regardless of the method chosen, we have suggested it is sensible for" }, { "docid": "9042773", "title": "", "text": "calculate a lodestar in these circumstances.\" Badalamenti , 2015 WL 1862854, at *5. In contrast, having reviewed the contemporaneous billing records submitted as part of Plaintiff's fee application, the Court harbors no such concerns. Likewise, Dejana does not assert that these billing records are unreliable or otherwise contradictory to such an extent that calculation of the lodestar would be a futile exercise. Therefore, the concerns at issue in Badalamenti are not present here. Finally, to the extent Dejana's argument can be interpreted to suggest that a reasonable fee must be proportional to the recovery obtained, such a notion has been rejected by courts within this Circuit. See Badalamenti , 2015 WL 1862854, at *7 (\"[T]he Court is mindful that it is ordinarily inappropriate for an award of attorneys' fee be proportional to the damages recovered under ERISA.\"); Mason Tenders Dist. Council v. Aurash Const. Corp. , No. 04 CIV. 2427, 2006 WL 647884, at *3 (S.D.N.Y. Mar. 15, 2006) (\"Success in an ERISA action is not measured solely by the amount of damages awarded, and there is no requirement that the amount of an award of attorney's fees under ERISA ... be proportional to the amount of damages awarded.\"); see also Cowan v. Prudential Ins. Co. of Am. , 935 F.2d 522, 526 (2d Cir. 1991) (recognizing in the context of an action brought pursuant to 42 U.S.C. § 1988 that \"[a] presumptively correct 'lodestar' figure should not be reduced simply because a plaintiff recovered a low damage award.\"). Based upon the foregoing, the lodestar approach will be used in order to calculate the presumptively reasonable fee. See McDaniel v. Cty. of Schenectady , 595 F.3d 411, 417 (2d Cir. 2010) (\"[I]t remains the law in this Circuit that courts may award attorneys' fees in common fund cases under either the 'lodestar' method or the 'percentage of the fund' method.\"). 3. Application of the Lodestar Method Having determined that Plaintiff is entitled to an award of reasonable attorneys' fees and costs and that the lodestar method will be utilized in calculating the same, the next step requires calculation of the" }, { "docid": "2080806", "title": "", "text": "settlement fund that will partially revert to the defendant. In Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980), the Supreme Court confirmed the permissibility of using the entire fund as the appropriate benchmark, at least where each class member needed only to prove his or her membership in the injured class to receive a distribution. Id. at 480-81, 100 S.Ct. 745. Boeing, however, did not address whether a district court abuses its discretion by taking the converse approach, basing attorneys’ fees on only the amount of the fund claimed by class members. Courts of appeals have taken a similar approach when they have addressed this issue in the cy pres context. In Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir.1990), the District Court had calculated attorneys’ fees as a percentage of the total fund even though unclaimed funds would be distributed to cy pres recipients. The Court of Appeals for the Ninth Circuit, relying on Boeing, held that the District Court did not abuse its discretion in using the total fund amount as its benchmark. Id. at 1311. In Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423 (2d Cir.2007), the Court of Appeals for the Second Circuit reviewed a percentage-fee award based on funds claimed by class members rather than on the entire settlement fund, some of which would ultimately be distributed to a cy pres recipient. Finding that the District Court abused its discretion, the Circuit Court held that the percentage fee should have been calculated on the basis of the total fees made available because “[t]he entire [settlement] [f]und, and not some portion thereof, [was] created through the efforts of counsel.” Id. at 437. It noted, however, that a court may within its discretion decrease the percentage of the fund awarded (rather than the benchmark value of the settlement) in appropriate circumstances to prevent attorneys from being improperly enriched. Id. We think it unwise to impose, as Young requests, a rule requiring district courts to discount attorneys’ fees when a portion of an award will be" }, { "docid": "12380556", "title": "", "text": "doctrine. “The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (internal citations omitted). In this Circuit, courts may calculate reasonable attorneys’ fees from a common fund based either on the percentage of the recovery method or the lodestar method. Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir.2000). Under the percentage method, attorneys’ fees are set by the court as a percentage of the fund. Under the lodestar method, the lodestar is arrived at by multiplying the hours expended by class counsel by appropriate hourly rates, and may then be adjusted by a multiplier determined at the discretion of the court, taking into consideration the contingent nature of payment, the quality of representation and the results achieved. In re Arakis Energy Corp. Sec. Litig., No. 95 Civ. 3431(ARR), 2001 WL 1590512, at *15 (E.D.N.Y. Oct. 31, 2001). A Second Circuit panel recently held that attorneys’ fees awarded as a percentage of a common fund must take into consideration the entirety of the fund, not only that portion received directly by class members. Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir.2007). In Masters, a fund of nearly $22 million was established, but only $9.34 million was claimed by class members. Id. at 428, 431. The settlement agreement left disbursement of the remainder of the fund to the discretion of the court. Id. at 428. Class counsel’s request of fees and expenses was nearly $8.9 million. Id. The district court awarded $3.76 million in fees based on 40% of the value of claims made, rather than the entirety of the fund, separately allowing $1.6 million in expenses. Id. The Court of Appeals reversed, holding that: “The entire Fund, and not some portion thereof, is created through the efforts of counsel at the instigation of the entire class. An allocation of fees by percentage should therefore be awarded on the basis of" }, { "docid": "23137470", "title": "", "text": "1:03-cv-01324, 2004 WL 3522363 (N.D.N.Y. Mar. 17, 2004); Order, Kahler v. Rensselaer County, No. 1:03-cv-01324 (N.D.N.Y. Sept. 23, 2004). Counsel in Kahler received attorneys’ fees of approximately $442,700 out of a total settlement fund of $2.7 million, about 16% of the fund. In Marriott, the district court granted the plaintiffs’ motion for partial summary judgment in April 2006, concluding that Montgomery County’s jail policies included an unconstitutional strip search for which the county was liable (although reaching no decision as to the scope of damages) and that plaintiffs’ counsel, as counsel to a prevailing party in an action brought under 42 U.S.C. § 1983, were entitled to a statutory award of interim attorneys’ fees. Marriott v. County of Montgomery, 426 F.Supp.2d 1, 6-12 (N.D.N.Y.2006). The parties thereafter reached a settlement, which received final approval in May 2007, resulting in an attorneys’ fees award of $600,000 out of a total settlement fund of $2 million, or 30% of the fund. See Motion to Approve Consent Judgment (Exhibit A, Settlement Agreement), Marriott v. County of Montgomery, No. 5:03-cv-00531 (N.D.N.Y. Apr. 13, 2007); Order Granting Final Approval of Class Action Settlement and Judgment, Marriott v. County of Montgomery, No. 5:03-cv-00531 (N.D.N.Y. May 15, 2007). On September 5, 2007, the district court in this case conducted a final fairness hearing regarding the proposed settlement agreement, during which it issued an oral decision regarding the acceptability of the agreement. In determining the proper fees to be awarded to counsel from the common fund, the court noted its duty to act as “a guardian of the rights of absent class members” and the resulting need to “approach fee awards with an eye to moderation.” Oral Decision at 9. Further observing that the calculation of a reasonable fee was committed to its sound discretion, the court indicated that “[i]n the past, both the lodestar and the percentage of fund methods have been available to district judges in calculating attorneys’ fees in common fund cases,” and provided a brief explanation of each approach. Id. at 9-10. As the court noted, under the lodestar method: [T]he district court scrutinizes" }, { "docid": "15634972", "title": "", "text": "we wouldn’t have a deal.”).) The ADR provision, while not ideal in this Court’s view, represents a “fair proxy” for future disputes. After weighing all of the Grinnell factors, this Court finds that the Settlement is fair, reasonable, and adequate. III. Approval of Attorneys’ Fees, Expenses, and Incentive Awards A. Attorneys’ Fees In awarding attorneys’ fees, especially in the context of a class action, a court must “ensure that the interests of the class members are not subordinated to the interests of ... class counsel.” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1996). As a fiduciary for the Class, a court must assess the fee request with “a jealous regard to [class members’] rights.” Goldberger v. Integrated Res., Inc., 209 F.3d 43, 53 (2d Cir. 2000); McDaniel v. Cty. of Schenectady, 595 F.3d 411, 419 (2d Cir. 2010) (noting that, in approving fees, it is the “district court’s duty to act as a fiduciary who must serve as a guardian of the rights of absent class members”) (internal quotation marks and citation omitted). Courts traditionally have employed two methods to calculate reasonable attorneys’ fees in class action litigation: (1) the percentage of the fund approach, and (2) the lodestar approach. The percentage of fund approach assigns a proportion of the common settlement fund toward payment of attorneys’ fees. The lodestar approach calculates the total amount of fees billed by multiplying the number of hours expended by counsel by a reasonable hourly rate. The lodestar is typically enhanced by an appropriate multiplier which accounts for a number of factors unique to the case, including the contingent nature of success and the quality of counsel’s work. While this Court has the discretion to choose between either method, the prevailing trend in the Second Circuit is the percentage method because it “directly aligns the interests of the class and its counsel and provides a powerful incentive for the efficient prosecution and early resolution of litigation.” In re WorldCom, Inc. ERISA Litig., No. 02-cv-4816 (DLC), 2005 WL 3101769, at *7 (S.D.N.Y. Nov. 21, 2005). However, the lodestar approach" }, { "docid": "23454606", "title": "", "text": "to reduce the percentage-of-recovery to account for the magnitude of the settlement fund. He also contends the District Court erred in calculating the lodestar cross-check multiplier using the hourly rates of the most senior lawyers on the case. In assessing attorneys’ fees, courts typically apply either the pereentage-of-recov-ery method or the lodestar method. The percentage-of-recovery method is generally favored in common fund cases because it allows courts to award fees from the fund “in a manner that rewards counsel for success and penalizes it for failure.” Prudential, 148 F.3d at 333 (internal quotations omitted). The lodestar method is more typically applied in statutory fee-shifting cases because it allows courts to “reward counsel for undertaking socially beneficial litigation in cases where the expected relief has a small enough monetary value that a percentage-of-recovery method would provide inadequate compensation” or in cases where the nature of the recovery does not allow the determination of the settlement’s value required for application of the percentage-of-recovery method. Id. Regardless of the method chosen, we have suggested it is sensible for a court to use a second method of fee approval to cross-check its initial fee calculation. Id. Consistent with past jurisprudence, the percentage-of-recovery method was incorporated in the Private Securities Litigation Reform Act of 1995. 15 U.S.C. § 78u-4(a)(6) (“Total attorneys’ fees and expenses awarded by the court to counsel for the plaintiff class shall not exceed a reasonable percentage of the amount of any damages and prejudgment interest actually paid to the class.”). Nonetheless, we do not believe the Private Securities Litigation Reform Act precludes the use of the lodestar method as a check on the percentage-of-recovery calculation. Notwithstanding our deferential standard of review of fee determinations, we have required district courts to clearly set forth their reasoning for fee awards so that we will have a sufficient basis to review for abuse of discretion. See Prudential, 148 F.3d at 340; Gunter, 223 F.3d at 196; Cendant PRIDES, 243 F.3d at 733. A district court should consider seven factors when analyzing a fee award in a common fund case: (1) the size of the" }, { "docid": "17480042", "title": "", "text": "fund” from which money would be drawn. See Strong, 137 F.3d at 852 (“[N]o fund was established at all in this case.”). In contrast, the parties here established that $40 million was the fund upon which the amount of the individual claimants’ awards would be based. The district court here never made a determination that this amount was illusory. Cf. id. (finding that common fund figure was “phantom”). Moreover, in Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir.1997) (per curiam), a class action re-versionary fund case, the Ninth Circuit held that the “district court abused its discretion by basing the fee on the class members’ claims against the fund rather than on a percentage of the entire fund or on the lodestar.” Id. at 1027 (footnote omitted). The court found that the attorneys’ fee award should have been based on a percentage of the total recovery fund, $4.5 million, even though the actual payout only totaled approximately $10,000. Interestingly, in addressing arguments similar to those presented by the defendants here, the court stated that “Defendants here knew, because it was in the settlement agreement, that the class attorneys would seek to recover fees based on the entire $4.5 million fund. The Defendants had some responsibility to negotiate at the outset for a smaller settlement fund if they wished to limit the fees.” Id. We also note, as the district court recognized, that a leading commentator on class actions has agreed that fee awards may be based on the total available fund: When a lump sum has been recovered for a class, that sum represents the common fund benchmark on which a reasonable fee will be based. When, however, the defendant reserves the right to recapture any unclaimed portion of the common fund after class members have had an opportunity to make their claims against the fund, ... the question arises concerning whether the benchmark common fund amount for fee award purposes comprises only the amount claimed by class members or that amount potentially available to be claimed. In Boeing Co. v. Van Gemert, the Supreme Court settled this" }, { "docid": "20450415", "title": "", "text": "the e-credits and the injunctive relief. The court found the actual cash value of the e-credits to be “significantly less than [the] $1.5 million” face value of the credits approved as of the date of the order. After acknowledging that “the discount in the cash value of the e-credits is mitigated by [the] value of the injunctive relief achieved by the settlement,” but finding that “no precise value can be placed on the settlement in light of the many uncertainties involved,” the court concluded that “the ultimate value of the settlement to the class is roughly $1.5 million.” To that ballpark estimate of the total value of the coupon and equitable relief, combined, the court compared the plaintiffs’ requested lodestar figure, adjusting the fees downward to $1.5 million plus costs to ensure the fee award reflected the class members’ limited recovery. Precisely because the value of the award obtained by the class members here — e-credits and injunctive relief — is difficult to quantify, it made sense for the court to calculate the fee amount as a function of the hours counsel worked on the case, rather than a percentage of the class recovery. See Staton v. Boeing Co., 327 F.3d 938, 974 (9th Cir.2003). As in Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir.1998), the district court used its approximate valuation of the coupon and in-junctive relief “only as a cross-check of the lodestar amount, rejecting] the idea of a straight percentage recovery because of its uncertainty as to the valuation of the settlement.” Staton, 327 F.3d at 973 (alteration in original) (quoting Hanlon, 150 F.3d at 1029) (internal quotation marks omitted). This approach — CAFA aside for the moment — was entirely appropriate. There are no statutory fees at issue here, as there are in some civil rights class actions. So the attorney’s payment had to come from a constructive or “putative” common fund. Cf. id. at 966 (referring to the hypothetical “fund” constructed by.adding together the amount defendants agreed to pay in damages, attorney’s fees, and costs, and a gross amount of money ascribed to the" }, { "docid": "8342355", "title": "", "text": "SUMMARY ORDER Appellants, three members of a class that settled a securities fraud action for $750 million, object to the district court’s award of attorneys’ fees to appellees in the amount of 16% of the common fund’s recovery and $3,314,399.90 in expenses. We review the form and content of the notice given to class members, see Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 438 (2d Cir.2007), and the reasonableness of the fee award, see Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000), for abuse of discretion, deferring to the “district court, which is intimately familiar with the nuances of the ease,” In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir.1992). In doing so, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1. Notice to the Class Appellants submit that notice of the proposed fee award was not “directed to class members in a reasonable manner,” Fed.R.Civ.P. 23(h)(1), because the notice did not include the date of appellees’ motion for attorneys’ fees or indicate how class members could access the motion document. This argument reduces to a challenge to the form and content of the notice, which we review for abuse of discretion, see Masters v. Wilhelmina Model Agency, Inc., 473 F.3d at 438, and we detect none here. The notice clearly states that “Plaintiffs’ Counsel are moving the Court to award attorneys’ fees not to exceed twenty percent (20%) of the Gross Settlement Fund, and for reimbursement of expenses incurred in connection with the prosecution of this Action in the approximate amount of five million dollars ($5,000,000).” Notice of Pendency of Class Action and Proposed Settlement, Motion for Attorneys’ Fees and Settlement Fairness Hearing at 3. The notice also informed class members as follows: “[Y]ou can object to ... the application by Plaintiffs’ Co-Lead Counsel for an award of fees and expenses. You may write the Court setting out your objection.” Id. at 14. The notice provided the addresses of the court and" }, { "docid": "19316531", "title": "", "text": "created the fund are entitled to a reasonable fee—set by the court—to be taken from the fund.” Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir.2000) (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980)). “The rationale for the doctrine is an equitable one: it prevents unjust enrichment of those benefiting from a lawsuit without contributing to its cost.” Id. Common fund fee awards are therefore a common feature of class litigation. Here, Plaintiffs’ Counsel successfully created a common fund of $35 million plus interest, and accordingly are entitled to a reasonable share of that fund as compensation for their work. See In re Telik, Inc. Sec. Litig., 576 F.Supp.2d 570, 584-85 (S.D.N.Y.2008). The Second Circuit approves two ways of determining a reasonable attorney’s fee in common fund cases: the “percentage” method and the “lodestar” method. Under the percentage method, the fee is calculated simply as a percentage of the recovery. Under the “lodestar” method, the court determines the lodestar—that is, the number of hours reasonably expended on the case multiplied by the appropriate hourly rates— based on submissions from counsel regarding the work they performed. This lodestar is then adjusted, usually upward (by a “multiplier”), to arrive at the appropriate fee award for the case. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005); Goldberger, 209 F.3d at 50. A district court has discretion to use either method, although the trend in this Circuit is toward the percentage method. See Wal-Mart, 396 F.3d at 121. Regardless of which method is used, several factors identified by the Second Circuit in Goldberger (the “Goldberger factors”), discussed below, ultimately determine what is a reasonable fee. Masters v. Wilhelmina Model Agency, 473 F.3d 423, 436 (2d Cir.2007). As detailed in the Sarko Declaration, Plaintiffs’ Counsel have invested about 45,000 hours in this case. The rates range from $125 for certain administrative personnel to $775 for the most senior lawyers; the blended rate for the case as a whole is less than $300. The lodestar (as of December" }, { "docid": "2478921", "title": "", "text": "before awarding fees and costs. 2. Justification for Fee Award Gristede’s argues that the district court clearly erred in concluding that plaintiffs’ proposed hours were reasonable in light of Gristede’s’ “vigorous approach to litigating th[e] case.” Torres v. Gristede’s Operating Corp., 2012 WL 3878144, at *4 (attributing “much of the work performed by Plaintiffs ... to Defendants’ choice of litigation tactics”). As record support for the district court’s conclusion, plaintiffs point to a range of purportedly obstreperous behavior by Gristede’s that added to the cost of litigation. See Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir.2005) (observing that “hours required to litigate even a simple matter can expand enormously” where “attorney is compelled to defend against frivolous motions and to make motions to compel [discovery] compliance”). We need not decide the precise extent to which these litigation tactics expanded plaintiffs’ costs to conclude that the district court did not clearly err in determining that there was such an effect, which explained why plaintiffs reasonably incurred such high fees. Moreover, because the district court referenced Gris-tede’s’ litigation tactics only to explain why plaintiffs incurred such high attorney’s fees and not to sanction Gristede’s for defending the action as it did, there is no merit to the suggestion that the fee award penalized Gristede’s for exercising its constitutional rights. 3. Proportionality of Fee Award to Settlement Amount Arguing that the fee award is both disproportionate to plaintiffs’ success in the litigation and out of line with awards in “common fund” cases, Gristede’s submits that the “fee award in this case should have been no more than one-third.” Appellants’ Br. 49. On deferential abuse-of-discretion review, we disagree. The proportionality of the $3.42 million-fee award is not to be judged, as Gristede’s urges, against the dollar value of the $3.53 million settlement. See Kassim v. City of Schenectady, 415 F.3d at 252 (dispelling “notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation”). Rather, “ ‘the most critical factor’ in determining the reasonableness of a fee award ‘is" } ]

[ { "docid": "5247421", "title": "", "text": "into debt as its Chapter 11 case proceeded. Notwithstanding the Debtor’s dismal performance throughout 1989, however, G.S. & H. began to draft a plan of reorganization and disclosure statement for the Debt- or in January of 1990. The disclosure statement was never approved by this Court, and G.S. & H. ultimately applied to the Court for permission to sell the Debt- or’s assets pursuant to § 363 of the Bankruptcy Code. The Court approved the application, the sale was consummated, and the Debtor voluntarily converted its case to a ease under Chapter 7 on August 14, 1990. Thus, no benefit accrued to the estate from the preparation of the plan and disclosure statement by G.S. & H. This Court does not wish to establish a standard which mandates that a firm must achieve a successful reorganization in order to be awarded 100 percent of its fees in a Chapter 11 case. It does, however, believe that it is necessary to establish a duty of diligence on the part of attorneys representing debtors-in-possession to monitor the progress of each case and make a seasoned determination of whether further rehabilitation efforts are warranted. Consequently, absent a compelling explanation, attorney fees incurred beyond the period where there is no likelihood of a successful reorganization will be denied. Any other result would penalize unsecured creditors at the sole benefit of the attorney, an outcome clearly inconsistent with the purposes of Chapter 11, which is to achieve the debt- or’s reorganization and to distribute a fair return to unsecured creditors. Gamas, 40 B.R. at 141. While the Court believes all services for which fees are sought were in fact rendered, it does not believe the fees charged for preparation of a plan and disclosure statement were necessary in the present case. A review of the fee application filed by G.S. & H. in the present case shows that the firm allocated 23 hours at an hourly rate of $85.00 per hour and expenses of $30.85 to matters which were directly related to preparation or presentation of the plan and disclosure statement. Accordingly, the Court hereby" } ]

[ { "docid": "10045584", "title": "", "text": "the Court’s order, it never sought criminal contempt, the appropriate procedure for that purpose. See Latrobe Steel Co. v. United Steelworkers of America, AFL-CIO, 545 F.2d 1336, 1343 (3d Cir.1976); accord In re Keene Corp., 168 B.R. at 288. Instead, Ber-lack commenced a civil contempt proceeding, undoubtedly at Mr. Bailey’s insistence, ostensibly to recover its “carfare,” but in fact, to punish Mr. Levy. No reasonable attorney, however, could have believed that it would be worth the cost and effort to pursue this matter in light of the anticipated benefit to the estate. This proceeding is reminiscent of In re Taxman Clothing, Co., 49 F.3d 310, in which special counsel commenced a $61,-000.00 preference claim (later reduced to $33,000.00), and sought $85,000.00 in compensation. Id. at 311-12. Criticizing the applicant, Judge Posner observed that a trustee’s attorney must sometimes forbear from attempting to collect an asset because the costs of collection exceed the value of the asset. Id. at 315; accord In re Allied Computer Repair, Inc., 202 B.R. at 887 (Attorney for the estate is obligated to “abandon litigation once it becomes reasonably obvious that [its] cost ... is out of syne with the value of the asset sought to be recovered”). The Court ultimately directed him to retain $7,000.00 and disgorge the balance of the $85,000.00 he had already received as interim compensation. Id. at 316. Here, the maximum that the debtor could have recovered was Berlack’s “carfare.” It is difficult to accept that in a non-bankruptcy context, where one who must answer to shareholders, a corporate manager would authorize a lawyer to pursue such a case. In bankruptcy, however, the temptation exists because the debtor is paying the legal fee with the creditors’ money. Further, the chance of recovering the disproportionate legal fees from the alleged contemnors — a dubious proposition at best — makes no differ- enee. The potential upside to the debtor was always minimal. The mere possibility that someone else might pay the legal fees did not justify taking the risk that they would not. Moreover, Berlack was repeatedly warned during the interim fee hearings" }, { "docid": "10045561", "title": "", "text": "and considers “what services a reasonable lawyer or legal firm would have performed in the same circumstances.” In re Ames Dep’t Stores, Inc., 76 F.3d 66, 72 (2d Cir.1996) (citing In re Taxman Clothing Co., 49 F.3d 310, 315 (7th Cir.1995) (Posner, C.J.)); accord In re Drex-el Burnham Lambert Group, Inc., 133 B.R. 13, 23 (Bankr.S.D.N.Y.1991). In the case of litigation to recover money for the estate, the debtor’s attorney must “make a careful judgment whether the number of billable hours that he would be investing was commensurate with the expected gain.” In re Taxman Clothing Co., 49 F.3d at 314; see generally 3 Collier ¶ 330.03[3], at 330-26 (court should not measure the benefit by what the attorney actually achieved, but rather, “whether the services provided the estate with an opportunity commensurate with the cost”). The attorney has a fiduciary duty to maximize the estate, see In re Taxman Clothing Co., 49 F.3d at 315, and his allowed fees must be borne entirely by the creditors where the estate is insolvent. Before embarking upon costly litigation, a reasonable attorney must weigh the likely benefit to the creditors against the likely cost. In re Allied Computer Repair, Inc., 202 B.R. at 887. Once it becomes reasonably obvious that the prospective costs of commencing or continuing litigation will exceed any benefit to the estate, the attorney is duty bound to abandon the claim. In re Taxman Clothing Co., 49 F.3d at 315; In re Allied Computer Repair, Inc., 202 B.R. at 887. I. BERLACK FEE APPLICATION A. Keene 27 a/k/a/ The Unjust Enrichment Lawsuit 1. Origins of Keene 27 Berlack has failed to prove that the vast majority of services rendered in connection with the Keene 27 matter was necessary. Keene 27 appears to have sprung postpetition from the imagination of Glenn Bailey. Keene did not assign any value to its Keene 27 claim during the limited fund class action proceedings, and did not schedule it as an asset in this bankruptcy. Nevertheless, it was doubtless percolating for a great deal of time. One of Mr. Bailey’s criticisms of the tort" }, { "docid": "18804015", "title": "", "text": "ORDER ALLOWING FEES STEVEN H. FRIEDMAN, Bankruptcy Judge. After notice to all creditors, this Court has examined all pending fee applications filed in this case. The Court has considered these applications and finds that the following allowances are reasonable. The Court finds that reasonable compensation to Robert Furr, chapter 7 trustee (“trustee”), is $333.91, plus expenses of $0.34. The Court finds that reasonable compensation for Robert Furr, attorney for trustee (“Furr”), is $2,100.00 plus expenses of $445.10. The trustee is authorized and directed to pay the foregoing sums and shall pay to the Clerk of the Court $82.50 for special charges. In his fee application, Furr seeks average hourly compensation at the rate of $176.25 for 40 hours of time expended by him and an associate on behalf of the trustee. Most of the efforts relate to an adversary proceeding filed by the trustee against the debtor to recover a fraudulent transfer. The Court does not question whether the services delineated in the fee application were performed, although some of the time entries in the fee application appear excessive. However, the adversary proceeding ultimately was settled for $5,000.00. If the pending fee applications were awarded in full, all proceeds of this estate would be utilized to pay the adminis trative fee of professionals, including the trustee, leaving nothing for the unsecured creditors. By reducing the fee award, the Court does not intend to discourage trustees and their counsel from conducting investigations of bankruptcy estates, and the circumstances precipitating their demise, to determine whether causes of action exist which would result in the recovery of assets. However, bankruptcy estates should not be administered for the sole or primary benefit of the professionals appointed to administer such estates. Fee applications submitted by a trustee’s attorney should be given much greater scrutiny where the attorney’s considerable efforts result in little benefit for the estate. In re Crawford Hardware, Inc., 82 B.R. 885 (Bankr.S.D.Ohio 1987). All too often, the very creditors for whose benefit bankruptcy estates are administered are left with the impression that the debtors and/or their principals (having secreted undiscovered assets) and" }, { "docid": "17937915", "title": "", "text": "attorney’s conflicts of interest and “the rendition of services of doubtful value” In re Kendavis 91 B.R. at 762. The court in Roger Au & Son determined that the attorney would not be allowed full compensation, but “the firm was entitled to some compensation” for its substantial effort expended on the case. 71 B.R. at 243. 80. This Court shall disallow 60% of the fees provisionally allowed in Part I of the discussion. This ruling takes into account that Much Shelist has expended considerable energy on this matter and successfully pursued the matter to a confirmation of a plan. It has also performed valuable services to the estate in pursuing the collection of amounts owed to the Debtor and representing the Debtor in a variety of other matters. Balancing that against the sorry record described hereinabove, it is appropriate to reduce fees provisionally allowed to Much Shelist by 60% as an appropriate sanction for their failure to comply with Rule 2014, § 327 and § 328. 81. The Court does not reduce the reimbursement of expenses allowed in Part II. In In re Philadelphia Athletic Club, 38 B.R. 882 (Bankr.E.D.Pa.1984), the court denied all fees to the firm after it was found not to be disinterested, but allowed the firm to be reimbursed for its expenses. 38 B.R. at 884. The court stated, “the [conflict of interest] rule for fees may be applied by the bankruptcy judge to expenses but, generally, expenditures should be allowed which have clearly benefitted the estate.” Id. citing Woods v. City National Bank and Trust Co. of Chicago, 312 U.S. 262, 269-70, 61 S.Ct. 493, 497-98, 85 L.Ed. 820. See also In re Florida Peach Corp. of America, Int’l. Div., 110 B.R. 589, 593 (Bankr.M.D.Fla.1990). Since the Court has already denied all the expenses which were not beneficial to the estate in Part II, Much Shelist may be reimbursed for the remaining expenses. IV. MUCH SHELIST AND THE BEATRICE LITIGATION 82. The U.S. Trustee would also have this Court disqualify Much Shelist from representing Rusty Jones in the Beatrice litigation. Parties in interest and Debtor’s" }, { "docid": "16872844", "title": "", "text": "802 (Bankr.N.D.W.Va.1995). Other courts, however, have made a global adjustment for all the time lumped together. These courts simply reduce compensation for such entries by a certain percentage instead of denying all fees outright. See, e.g., In re Adventist Living Ctrs., Inc., 137 B.R. 701, 706 (Bankr.N.D.Ill.1991). Recourse taken under either method is based solely on an applicant’s failure to sustain its burden of proving the reasonableness of the fees provided. In re Poseidon Pools of America, Inc., 180 B.R. 718, 731 (Bankr.E.D.N.Y.1995). The action taken by courts does not necessarily suggest that the services provided were not beneficial to the estate. In re Breeden, 180 B.R. 802, 810 n. 7 (Bankr.N.D.W.Va.1995). The Ward court goes on to describe the applicant law firm as producing “excellent work;” the attorneys as “knowledgeable;” but the issues as “not complex.” All of these things are true in the pending matter. The Ward court found that “[although these charges are not necessarily wrong or improper, such expense is more properly directed toward the creditor instead of the debtor.” Ward, 190 B.R. at 251. We take additional note of In re Smith, 109 B.R. 421, 423 (Bankr.D.Mont.1988), where the court substantially reduced the attorney fees requested by an oversecured creditor by examining the items listed individually and explaining its reduction in this fashion: The Bank was at all times conceded to be an oversecured creditor by the Debtors and, therefore, its claim was never at issue.... [T]his Court finds that a legal fee which is nearly one-third of the Bank’s claim is not reasonable or economically prudent. We recognize as appropriate this concern for economy. Here, the same or similar tasks are performed and billed on successive days or grouped in such a way that they show billing by more than one professional, resulting in excessive charges to this estate. The Court explained in In re Busy Beaver Building Centers, Inc., 19 F.3d 833, 847 (3d Cir.1994), that the requisite degree of scrutiny: “In sum, if after initial review the bankruptcy court determines that, while the fee applicant made a good faith effort to comply" }, { "docid": "10045560", "title": "", "text": "contains two separate criteria, and before determining the reasonableness of the service, the Court must make a threshold inquiry into its necessity. In re Lederman Enters., Inc., 997 F.2d 1321, 1323 (10th Cir.1993); In re Allied Computer Repair, Inc., 202 B.R. 877, 886 (Bankr.W.D.Ky. 1996). The majority of courts hold that a service is “necessary” if it benefits the estate. In re Engel, 190 B.R. 206, 209 (Bankr.D.N.J. 1995) (citing cases); 3 Lawrence P. King, et al., Collier on Bankruptcy ¶330.03[3], at 330-25 (15th ed. rev. 1996) (“Collier”). The bankruptcy court may reduce or disallow a request if the underlying services conferred no real benefit on the estate. See, e.g., Vining v. Ward (In re Ward), 894 F.2d 771, 777 (5th Cir.1990) (court may reevaluate prior award to attorneys where judgment they obtained for estate turned out to be uncollectible). A court should not apply this test through hindsight, 3 Collier ¶ 330.04[l][b][iii], at 330-32, as a decision reasonable at first may turn out wrong in the end. Rather, the test is an objective one, and considers “what services a reasonable lawyer or legal firm would have performed in the same circumstances.” In re Ames Dep’t Stores, Inc., 76 F.3d 66, 72 (2d Cir.1996) (citing In re Taxman Clothing Co., 49 F.3d 310, 315 (7th Cir.1995) (Posner, C.J.)); accord In re Drex-el Burnham Lambert Group, Inc., 133 B.R. 13, 23 (Bankr.S.D.N.Y.1991). In the case of litigation to recover money for the estate, the debtor’s attorney must “make a careful judgment whether the number of billable hours that he would be investing was commensurate with the expected gain.” In re Taxman Clothing Co., 49 F.3d at 314; see generally 3 Collier ¶ 330.03[3], at 330-26 (court should not measure the benefit by what the attorney actually achieved, but rather, “whether the services provided the estate with an opportunity commensurate with the cost”). The attorney has a fiduciary duty to maximize the estate, see In re Taxman Clothing Co., 49 F.3d at 315, and his allowed fees must be borne entirely by the creditors where the estate is insolvent. Before embarking upon" }, { "docid": "18501992", "title": "", "text": "to the fee applications, the court still has the independent judicial duty to determine whether compensation is reasonable. York Intern. Building, Inc. v. Chaney, 527 F.2d 1061, 1068 (9th Cir.1975); In re Meade Land & Development Co., 527 F.2d 280, 284 (3rd Cir.1975) (“It is the [bankruptcy] court’s independent obligation to give credit only where there are ... supporting documents, even cases where no interested parties raise objections to the claims.”); In re Oberreich, 109 B.R. 936, 937 (Bankr.E.D.Wis.1990). By restricting compensation to actual and necessary service, § 330 imposes a mandatory duty on bankruptcy courts to exercise billing judgment in the award of fees. One court has described that duty as follows: “When attorneys fail to exercise this sort of billing judgment in advance, the Bankruptcy Court is within its discretion to act as ‘client’ ‘objecting’ to excessive fees which it deems overstep the ‘actual and necessary’ standard imposed by Section 330(a)(1).” In re Metro Tramp. Co., 107 B.R. at 53 (citation omitted), see In re S.T.N. Enterprises, Inc., 70 B.R. at 831 (Court has a “supervisory obligation” to protect the “public interest” in the award of fees from the estate). The bankruptcy court was well within its authority to scrutinize sua sponte the fee applications. Appellants argue they were denied any meaningful opportunity to supplement their fee application with additional documentation. This argument is subsumed by the broader issue of what are the bankruptcy court’s alternatives in handling inadequate fee applications. This problem has been dealt with in a number of different ways. In the case of In re Coastal Equities, Inc., 39 B.R. 304, 311 (Bankr.S.D.Cal.1984), the court reduced the fee request by 5% which represented the amount of the insufficient entries. Another court, in a similar fashion, totalled the exact number of hours inadequately documented and reduced the fee request accordingly. Matter of Boston and Maine Corp., 46 B.R. 990, 995 (D.Mass.), vacated, 776 F.2d 2 (1st Cir.1985). Where the fee application was deficient in several critical respects, including no evidence on a reasonable hourly rate, activities improperly aggregated and no detailed information, the court said" }, { "docid": "226262", "title": "", "text": "contests the fifteen percent sanction the bankruptcy court imposed because Franks failed to provide any significant benefit to the debtor. Again, I disagree. Whenever a bankruptcy court reviews fees pursuant to § 330, it must consider the benefit, if any, a professional provides to the debtor’s estate. In re Reed, 890 F.2d 104, 105 (8th Cir.1989). Indeed, it is common for a bankruptcy court to reduce fees and costs where the court perceives that only a middling benefit to the estate. See, e.g., In re Automobile Warranty Corp., 138 B.R. 72 (Bankr.D.Colo.1991) (reduction of $2,000 for over-billing practices); In re Associated Grocers, Inc., 137 B.R. 413 (Bankr.D.Colo.1990) (fees reduced by 20% to 40% for overbill-ing, duplicative billings, lumping tasks together and minuscule benefit to estate); and In re Wire Cloth Products, Inc., 130 B.R. 798 (Bankr.N.D.Ill.1991) (interim fee request of $40,000 excessive in light of nature of services provided and benefit to estate). As noted above, I accord significant latitude to the bankruptcy court’s discretion to allow or reject fees and costs. Franks advances no facts or arguments which make me think that the bankruptcy court abused its discretion in reducing its fee an additional fifteen percent. I accordingly affirm this aspect of the bankruptcy court’s ruling. III. Conclusion I reverse the bankruptcy court’s decision denying compensation to Franks for the work performed before it approved Franks as the debtor’s attorney. I therefore award Franks additional fees in the amount of $978.75. In all other respects, I affirm the bankruptcy court’s decision. Accordingly, Franks is ordered to disgorge to the debtor $428.35. . The cases are collected in 2 Collier on Bankruptcy ¶ 327.02 at 327-6 — 327-18 (15th Ed. 1992)." }, { "docid": "18553245", "title": "", "text": "them substantial incentive to litigate. Their interest is evidenced by their retention of separate counsel for the appeal. The question remains whether work done for the benefit of three defendants may be compensated in full by the bankruptcy estate of one. Fairness might dictate that the bill be divided evenly amongst the several beneficiaries. On the other hand, there is no evidence that Bolton would have paid any less for a separate defense as for a joint defense. Moreover, when the defenses largely overlap, as they did here, it may be more efficient to have joint counsel. Courts have stated that “attorneys entitled to fees for services in bankruptcy and Chapter XI proceedings will have their fees reduced proportionately where their services were partly performed on behalf of private clients.” Cle-Ware Indus., Inc. v. Sokolsky (In re Cle-Ware Indus., Inc.), 493 F.2d 863, 873 (6th Cir.), cert. denied, 419 U.S. 829, 95 S.Ct. 50, 42 L.Ed.2d 53 (1974); In re Transamerican Freight, 40 B.R. at 92. However, each of these cases involved the portion of an attorney’s fees that represented work done solely for the benefit of a private individual. These cases thus do not address how to measure compensation when work simultaneously performed for the debtor and its officers which equally benefitted the debtor as well as the private parties. Cf. Cle-Ware Indus., 493 F.2d at 873 (“Where there is such a multiplicity of beneficiaries of one particular service, courts are anxious to see in the estate only a kind of secondary beneficiary of efforts made primarily for, and therefore to be compensated by, the directly interested creditors.”) citing 3A Collier on Bankruptcy P. 62.12 at 1493 (14th ed. 1971); FSC Corp., 33 B.R. at 213-14 (approving payment of fees by estate where defense was important to the estate and individuals derived only minimal benefit from representation). Here, Standard Register concedes that there is no evidence that the debtor’s attorneys fees were more expensive because defendants pursued a joint defense, or that any of the attorneys fees were solely for the benefit of the individuals. Therefore, the bankruptcy court" }, { "docid": "21196071", "title": "", "text": "to Chapter 7 benefitted the estate and the creditors of Debtor’s estate because these efforts sought to preserve the estate’s assets from distribution to creditors of other estates and sought to successfully reorganize the estate’s assets to achieve greater value. (Paper 6, Ex. 1, at 53-54). The fact that Debtor contested many of the debts not held by her family members is insufficient to render this finding clearly erroneous. B. Billing Judgment Creditors arg-ue that Ms. Regen-hardt’s fee application should be denied in its entirety for failure to exercise billing judgment. They contend that billing judgment is a requirement of any attorney fee award, and that proper billing judgment always requires an attorney to exclude from a fee application some percentage of the time spent on that case. The Supreme Court of the United States, in considering attorney’s fee awards in other contexts has explained that: [cjounsel ... should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980)). “The exercise of billing judgment is the voluntary reduction of a fee by counsel to a private client for services [that] either conferred a negligible benefit or were excessive.... Such billing judgment is an absolute requirement of fee applications in bankruptcy.” In re Maxine’s, Inc., 304 B.R. 245, 249 (Bankr.D.Md. 2003) (citing In re Leonard Jed, 103 B.R. 706, 713 (Bankr.D.Md.1989); In re Bernard Hill, Inc., 133 B.R. 61, 62 (Bankr. D.Md.1991)). Creditors argue that a fee application indicating that no hours have been written-off should necessarily be denied or reduced, but this argument is without merit. While “billing judgment is" }, { "docid": "13875181", "title": "", "text": "necessarily the reasonable time expended. In the private sector, so-called “billing judgment” is an important component in fee setting which is no less important when the fees are to be approved by the Court. Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir.1990); Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983). See also, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-1940, 76 L.Ed.2d 40 (1983) (professionals, in applying for fees “should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.”). Any calculation of reasonable fees, based on services rendered and hours expended, must be leavened with an assessment of benefit accruing to the estate. Accord, e.g., In re Grabill Corf., 110 B.R. 356, 358-359 (Bankr.N.D.I11.1990). Many hours recorded resulting in no benefit can result in reduced fees and may result in no fees. Billable hours are not necessarily compensable hours. “An increasing attitude in the bankruptcy community is that if the time is actually expended, the applicant is entitled to receive all fees requested. All professionals must be disabused of this fallacious notion.” In re Chas. A. Stevens & Co., 105 B.R. 866, 871 (Bankr.N.D.Ill. 1989). “In other words, a debtor’s estate should not bear the costs of services which were either excessive or duplicative of the efforts of other professionals.” Wire Cloth Products, sufra at 806. In the final analysis, the setting of fees, whether by this Court or by the professionals themselves, is an art, not a science. Accord, In re Frontier Airlines, Inc., 74 B.R. 973, 979 (Bankr.D.Colo.1987). The fee awarded must ultimately be “a ‘reasonable’ fee — not the exact fee, not the right fee, but a reasonable fee. ‘Reasonableness’ is a most subjective standard with a range of acceptability.” Grayhall Resources, supra. “Few rulings in a bankruptcy case generate more outrage from the public, anxiety among attorneys, and tribulation for judges than the compensation of officers of an estate” pursuant to Section 330. In" }, { "docid": "18849643", "title": "", "text": "though private compensation agreements are permissible under the Code, the Court retains the responsibility of ensuring that the compensation awarded to professional persons falls within the parameters prescribed by section 330. See In re Churchfield Management & Invest. Corp., 98 B.R. 893 (Bankr.N.D.Ill.1989). The burden of proof to show entitlement to the fees requested is on the applicant. In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985). Moreover, fee applications must stand or fall on their own merits. See In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Even if no objections are raised to a fee application, the Court is not bound to award the fees sought, and in fact has a duty to independently examine the reasonableness of the fees. In re Chicago Lutheran Hospital Association, 89 B.R. 719, 734-735 (Bankr.N.D.Ill.1988); Pettibone, 74 B.R. at 299-300; In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986). Several courts have denied or drastically reduced compensation in unsuccessful Chapter 11 cases. See In re King, 96 B.R. 206, 208 (W.D.Mo.1989) (district court affirmed bankruptcy court’s order to return all fees rather than reduce the amount awarded); In re Coastal Equities, Inc., 39 B.R. 304, 311 (Bankr.S.D.Cal.1984) (reduction of fees by 17.5% for work performed in connection with a plan of reorganization without benefit to the estate). In re Coastal Equities, Inc. also sets forth the proposition that attorneys should receive less for their efforts when a plan of reorganization is not fully implemented or which fails. Id. at 311. Although a liquidating plan was confirmed in the instant case, these authorities provide instructive dicta to the situation at bar. The attempted reorganization of the Debtor as an ongoing business failed. Thus, Buccino’s request for fees must be considered with this fact in mind. The cited cases provide clear authority supporting reduction of fees where work actually performed did not benefit the estate in connection with the failed reorganization efforts. Professionals may be compensated out of the funds of the bankruptcy estate only if the work benefitted the estate. In re Ryan, 82" }, { "docid": "3825922", "title": "", "text": "the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 717-19. Courts may determine what is the reasonable amount of time a professional should have to spend on a given project. Wildman, 72 B.R. at 713. The Supreme Court, in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), ruled that “excessive, redundant or otherwise unnecessary” hours should be excluded from the fees sought. Id. at 434, 103 S.Ct. 1933. In other words, applicants should exercise good faith “billing judgment.” Id. Reasonable time spent does not necessarily include all time actually expended. See In re Chas. A. Stevens & Co., 105 B.R. 866, 870-71 (Bankr.N.D.Ill.1989). Hence, the exercise of good faith billing judgment comes into play. Compensation will not be awarded for nonproductive time, or for time spent on services that are duplicative of previously rendered services. In determining what constitutes reasonable compensation, the Seventh Circuit has stated that “there are limits— measured by standards of reasonableness—to what a professional can demand in a bankruptcy case.” Leventhal, 19 F.3d at 1178. “An increasing attitude in the bankruptcy community is that if the time is actually expended, the applicant is entitled to receive all fees requested. All professionals must be disabused of this fallacious notion.” Chas. A. Stevens, 105 B.R. at 871. Because of the apparent administrative insolvency of the estate as a result of the instant Application and additional estimated applications, the Court alerted the par ties to the relevant precedent of In re Taxman Clothing Co., 49 F.3d 310 (7th Cir.1995). In that case, the Seventh Circuit held that counsel for a Chapter 11 trustee was justified in pursuing preference claims only until it became reasonably obvious that further litigation would cost more than it was likely to bring into estate. “As soon as it became clear that the preference suit could not yield the estate a" }, { "docid": "11406664", "title": "", "text": "to be rendered in contemplation of or in connection with the case by such attorney 11 U.S.C.A. § 329(a) (1993). . See, e.g., In re Office Prods. of America, Inc., 136 B.R. 964, 977 (Bankr.W.D.Tex.1992) (reducing billing rate for attorney who delivered documents); In re Oakes, 135 B.R. 511, 514 (Bankr.N.D.Ohio 1991) (compensating counsel at paralegal rates for tasks which a paralegal or an office staff member could perform); In re Ginji Corp., 117 B.R. 983, 993-94 (Bankr.D.Nev.1990) (same); In re Amatex Corp., 70 B.R. 624, 627 (Bankr.E.D.Pa.1985) (same); In re Associated Grocers of Colo., Inc., 137 B.R. 413, 425 (Bankr.D.Colo.1990) (holding only a party with the necessary level of experience should perform a given task and compensation should consequently be set at that level); In re Rusty Jones, Inc., 134 B.R. 321, 334 (Bankr.N.D.Ill.1991) (same); In re Belknap, Inc., 103 B.R. 842, 845 (Bankr.W.D.Ky.1989) (importuning senior partners not to perform services \"which could be as competently performed by associates or paralegals”); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988) (\"[W]ork done by a senior partner that a beginning associate or paralegal could do will be compensated at a lower rate.”); In re Malden Mills, Inc., 42 B.R. 476, 481 (Bankr.D.Mass. 1984) (reducing attorney’s fees because experienced counsel charging high rates should delegate tasks not requiring his or her sophistication to junior, less expensive attorneys — \"counsel cannot be paid expert rates for routine services”); cf. Delaware Valley Citizens’ Council for Clean Air v. Pennsylvania, 762 F.2d 272, 279 (3d Cir.1985) (awarding able and experienced counsel fees under the Clean Air Act at paralegal rates for work which was “mundane or minor in character”), modified, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); In re Fine Paper Antitrust Litig., 751 F.2d 562, 591-93 (3d Cir.1984) (awarding partners compensation under the equitable fund doctrine in a class action at an associate attorney level for \"tasks which are customarily performed by junior associates or paralegals”); Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.1983) (statutory fee case under ERISA) (“Nor do we approve the wasteful use of highly" }, { "docid": "10045583", "title": "", "text": "fees because its attorneys had to attend to these matters. Nevertheless, on December 28, 1993, the debtor formally moved to hold Mr. Levy, two of his partners, and his law firm, in civil contempt. The motion alleged that the debtor had suffered damages in excess of $20,000.00. However, Mr. Weisfelner subsequently conceded that the debtor had proven minimal damages during the contempt hearing, equating the amount to “carfare.” (Fee Tr. at 30.) Like the Keene 27 matter, the contempt motion was withdrawn as part of the plan. Hence, it was never concluded. Yet despite the small sum involved, both sides litigated aggressively, and the matter generated substantial fees. The Court conducted several hearings, including part of a trial, and the parties fought long and hard over whether the vacatur of the temporary restraining order meant the debtor’s damage claim must fall. See In re Keene Corp., 168 B.R. 285. In the end, the debtor billed $184,014.50 to this matter. While Keene likes to argue that it filed the contempt motion to vindicate the integrity of the Court’s order, it never sought criminal contempt, the appropriate procedure for that purpose. See Latrobe Steel Co. v. United Steelworkers of America, AFL-CIO, 545 F.2d 1336, 1343 (3d Cir.1976); accord In re Keene Corp., 168 B.R. at 288. Instead, Ber-lack commenced a civil contempt proceeding, undoubtedly at Mr. Bailey’s insistence, ostensibly to recover its “carfare,” but in fact, to punish Mr. Levy. No reasonable attorney, however, could have believed that it would be worth the cost and effort to pursue this matter in light of the anticipated benefit to the estate. This proceeding is reminiscent of In re Taxman Clothing, Co., 49 F.3d 310, in which special counsel commenced a $61,-000.00 preference claim (later reduced to $33,000.00), and sought $85,000.00 in compensation. Id. at 311-12. Criticizing the applicant, Judge Posner observed that a trustee’s attorney must sometimes forbear from attempting to collect an asset because the costs of collection exceed the value of the asset. Id. at 315; accord In re Allied Computer Repair, Inc., 202 B.R. at 887 (Attorney for the estate is" }, { "docid": "226261", "title": "", "text": "either contemporaneous or retroactive § 327 approval before undertaking the state court case. It is thus ineligible for § 330 compensation. Were that not enough, Mr. Franks testified not once, but twice, at the December 11th hearing that his firm did not represent the debtor in the state court case, but only the principals. The fee application likewise makes it clear that Franks represented the individuals and not the debtor in the state case. To compound the confusion, Mr. Franks suggested at oral argument that his decision to represent only the principals and not the debtor in the state court litigation was a “tactical” decision, thereby suggesting that he was also protecting the debtor’s interests as well. If so, then § 327 demanded that he seek court approval before undertaking the litigation on the debtor’s behalf. In light of these admissions and conflicting statements, the bankruptcy court did not abuse its discretion in denying Franks fees and costs for the state court litigation. 3. Propriety of 15% Sanction for Failure to Benefit Estate Franks finally contests the fifteen percent sanction the bankruptcy court imposed because Franks failed to provide any significant benefit to the debtor. Again, I disagree. Whenever a bankruptcy court reviews fees pursuant to § 330, it must consider the benefit, if any, a professional provides to the debtor’s estate. In re Reed, 890 F.2d 104, 105 (8th Cir.1989). Indeed, it is common for a bankruptcy court to reduce fees and costs where the court perceives that only a middling benefit to the estate. See, e.g., In re Automobile Warranty Corp., 138 B.R. 72 (Bankr.D.Colo.1991) (reduction of $2,000 for over-billing practices); In re Associated Grocers, Inc., 137 B.R. 413 (Bankr.D.Colo.1990) (fees reduced by 20% to 40% for overbill-ing, duplicative billings, lumping tasks together and minuscule benefit to estate); and In re Wire Cloth Products, Inc., 130 B.R. 798 (Bankr.N.D.Ill.1991) (interim fee request of $40,000 excessive in light of nature of services provided and benefit to estate). As noted above, I accord significant latitude to the bankruptcy court’s discretion to allow or reject fees and costs. Franks advances no" }, { "docid": "12566287", "title": "", "text": "the hourly rate would be warranted. Id. at 756. See also Franks’ Law Corp. v. St. Vrain Station Co. (In re St. Vrain Station Co.), 151 B.R. 549 (D.Colo.1993) (Bankruptcy court reduced fees because work provided little benefit to the estate); In re Amberg, 148 B.R. 376 (Bankr. D.Conn.1992) (fees denied because there was no benefit to the estate). With the guidance furnished in these cases, we will address the instant applications, reminding applicants that “[e]ven without regard to objections by other parties in interest, the court has an independent judicial responsibility to evaluate professionals’ fees.” In re Bank of New England Corp., 134 B.R. 450, 453 (Bankr. E.D.Mass.1991), aff'd, 142 B.R. 584 (D.Mass.1992) (citing In re First Software Corp., 79 B.R. 108 (Bankr.D.Mass.1987)). 1. The Application of Stephen S. Gray, Trustee The Trustee was appointed during the Chapter 11 phase of the case on November 8, 1991, and he assumed the management of the Debtor’s country club and golf course at that time. Mr. Gray was appointed after ten months of debtor-in-possession operation, during which the Debtor lost much of its credibility, strained the patience of creditors in their efforts to stay informed as to the details of the debtor-in-possession operation, and the announcement of the final straw — the unauthorized diversion of $64,000 of the Debtor’s funds to a bank in Anguila, British West Indies. On August 27, 1992, when it became obvious that a feasible plan of reorganization was not forthcoming, the case was voluntarily converted to Chapter 7, and on September 11, 1992, Gray was appointed Chapter 7 Trustee. The Trustee asserts that through his efforts the Debtor’s major asset was sold for a price far in excess of the amount initially contemplated, with the result that the first mortgagee was paid $2.6 Million; $400,000 went to the second mortgagee; and, after the proposed payment of $195,210 in administrative fees and expenses, a distribution of $178,619 (9%) is expected to be paid to unsecured creditors. This result, the Trustee contends, supports the reasonableness of his request for a commission in the amount of $110,513. After a" }, { "docid": "3825923", "title": "", "text": "of previously rendered services. In determining what constitutes reasonable compensation, the Seventh Circuit has stated that “there are limits— measured by standards of reasonableness—to what a professional can demand in a bankruptcy case.” Leventhal, 19 F.3d at 1178. “An increasing attitude in the bankruptcy community is that if the time is actually expended, the applicant is entitled to receive all fees requested. All professionals must be disabused of this fallacious notion.” Chas. A. Stevens, 105 B.R. at 871. Because of the apparent administrative insolvency of the estate as a result of the instant Application and additional estimated applications, the Court alerted the par ties to the relevant precedent of In re Taxman Clothing Co., 49 F.3d 310 (7th Cir.1995). In that case, the Seventh Circuit held that counsel for a Chapter 11 trustee was justified in pursuing preference claims only until it became reasonably obvious that further litigation would cost more than it was likely to bring into estate. “As soon as it became clear that the preference suit could not yield the estate a net gain, he should have taken the necessary steps to drop it.” Id. at 314. Counsel was required to return fees awarded for services performed after that point. In rejecting the attorney’s argument that he was entitled to the entire amount of the fees he incurred, the Taxman court noted: the only result of [the attorney’s] efforts to recover the alleged preferences was to drain the debtor’s estate of 75 percent of its value ($85,000/$113,000), so that together with the other expenses of administration the estate has been depleted to the point where the creditors will realize nothing. But there is a little more merit to the argument than may at first appear. Litigation is a gamble, and a failed gamble can often produce a large net loss even if it was a good gamble when it was made. Id. at 313. Moreover, the court stated that “[the attorney] was required as a fiduciary of the estate to make a careful judgment whether the number of billable hours that he would be investing was commensurate" }, { "docid": "11387548", "title": "", "text": "reasonably justify a different treatment for purposes of compensation for fee applications. Upon a finding of “substantial contribution” for the underlying services, the Applicant is entitled to allowance of an administrative claim of $490.00. Accord, In re Hers Cosmetics Corp., 114 B.R. 240, 244 (Bankr.C.D.Cal.1990) (“The argument that a fee award is inappropriate ... because the estate does not benefit ... may have surface appeal, but it lacks substance after analysis.”); In re Catalina Spa & RV Resort, Ltd., 97 B.R. 13, 21 (Bankr.S.D.Cal. 1989); In re W.G.S.C. Enterprises, Inc., 47 B.R. 53, 58 (Bankr. N.D.Ga.1985). Contra, U.S. Lines, supra at 432 (unless it can be shown how the work substantially contributed to the benefit of the estate or the creditors in general); Matter of Seatrain Lines, Inc., 21 B.R. 194, 195 (Bankr.S.D.N. Y.1982). The benefit to the estate from formulating a Plan and developing a Disclosure Statement to compete with the one proffered by the debtor has already been evaluated. This Court agrees that the $19,-500.00 requested conferred a substantial benefit and is compensable from the estate. Applicant also requests compensation for its efforts in objecting to the fee application of the Debtor’s counsel. Applicant contends that, because of its objection, the award was reduced by over $11,000.00 which resulted in a savings to the estate. Such a savings was a benefit conferred upon the entire estate, therefore, the $1,160.00 request will be allowed as an administrative claim. Due to a combination of the inadequate detail in the application and the voluntary and apparently arbitrary reductions made by Applicant at the hearing on this matter, this Court is unable to specifically allocate the expense reimbursement request to each of the general categories of services as set forth above. For lack of a more precise method, this Court will apportion the expenses as follows: Category Amended Fee Request of Total Allocated Expenses Case Administration $ 5,620.00 19 $ 615.22 Post-Confirmation Matters $ 2,175.00 8 $ 259.04 Creditors’ Fee Application $ 490.00 2 $ 64.76 Plan and Disclosure Statement $ 19,500.00 67 $2,169.46 Debtor’s Fee Application $ 1,160.00 4 $ 129.52" }, { "docid": "18849644", "title": "", "text": "206, 208 (W.D.Mo.1989) (district court affirmed bankruptcy court’s order to return all fees rather than reduce the amount awarded); In re Coastal Equities, Inc., 39 B.R. 304, 311 (Bankr.S.D.Cal.1984) (reduction of fees by 17.5% for work performed in connection with a plan of reorganization without benefit to the estate). In re Coastal Equities, Inc. also sets forth the proposition that attorneys should receive less for their efforts when a plan of reorganization is not fully implemented or which fails. Id. at 311. Although a liquidating plan was confirmed in the instant case, these authorities provide instructive dicta to the situation at bar. The attempted reorganization of the Debtor as an ongoing business failed. Thus, Buccino’s request for fees must be considered with this fact in mind. The cited cases provide clear authority supporting reduction of fees where work actually performed did not benefit the estate in connection with the failed reorganization efforts. Professionals may be compensated out of the funds of the bankruptcy estate only if the work benefitted the estate. In re Ryan, 82 B.R. 929, 932 (N.D.Ill.1987); see also In re Rhoten, 44 B.R. 741, 743 (Bankr.M.D.Tenn.1984). In Ryan, Judge Grady declined to award an attorney compensation for time expended defending the debtor against dischargeability complaints. The court found that the services performed benefitted a debtor personally and not the estate. Ryan notes a general principle applicable in this case. Not all services rendered to the debtor by professionals benefit the estate. Hence, services that provide no benefit to the estate should not be compensable from estate property. Moreover, Judge Grady reviewed the legislative history of section 330. Ryan at 932-933. He concluded that the Code mediates between the interests of debtors and creditors in terms of allowable fees paid from the estate for services rendered on behalf of the debtor. Unless services performed produce a demonstrable benefit to the estate, the Court will not award compensation. Billa ble hours are not necessarily compensable hours. An increasing attitude in the bankruptcy community is that if the time is actually expended, the applicant is entitled to receive all fees" } ]

[ { "docid": "22694273", "title": "", "text": "Mr. Justice Frankfurter delivered the opinion of the Court. Once more it becomes necessary to determine “What Congress has made the allowable unit of prosecution,” United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221, under a statute which does not explicitly give the answer. This recurring problem now arises under what is familiarly known as the Mann Act. The relevant provisions of the Act in its present form are: “Whoever knowingly transports in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose .... “Shall be fined not more than $5,000 or imprisoned not more than five years, or both.” § 2 of the Act of June 25, 1910, 36 Stat. 825, now 18 U. S. C. § 2421. The facts need not detain us long. Petitioner pleaded guilty to violations laid in two counts, each referring to a different woman. Concededly, the petitioner transported the two women on the same trip and in the same vehicle. This was the basis of his claim that he committed only a single offense and could not be subjected to cumulative punishment under the two counts. The District Court rejected this conception of the statute and sentenced the petitioner to consecutive terms of two years and six months on each of the two counts. On appeal from denial of a motion to correct the sentence, the Court of Appeals affirmed the District Court. “While the act of transportation was a single one,” it ruled, “the unlawful purpose must of necessity have been selective and personal as to each of the women involved. ... We therefore believe that two separate offenses were committed in this case.” 213 F. 2d 629, 630. This decision was in accord with decisions of other lower federal courts, but a contrary holding by the Court of Appeals for the Tenth Circuit, in Robinson v. United States, 143 F. 2d 276, raised a square conflict for settlement by this Court. This led us to bring the case here. 348 U. S." } ]

[ { "docid": "8352375", "title": "", "text": "United States v. Olano, 507 U.S. 725, 731, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (noting that Rule 52(b) is only “to be ‘used sparingly’ ” and “to correct only ‘particularly egregious errors’ ”) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). The standard set forth in Rule 52(b) requires that “[tjhere must be an ‘error’ that is ‘plain’ and that *affect[s] substantial rights.’ ” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting Rule 52(b) (last alteration in original)). Further, “Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quotations marks, citations, and alterations omitted). A. We first consider whether the District Court’s entry of separate convictions and sentences for simultaneous possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) constituted “error.” See Olano, 507 U.S. at 732-33, 113 S.Ct. 1770 (noting that “[djeviation from a legal rule” constitutes “error” under Rule 52(b)). This, in turn, requires us to determine “ ‘[w]hat Congress has made the allowable unit of prosecution’ ” for purposes of § 922(g)(1). See Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952)). Our starting point is the Supreme Court’s decision in Bell v. United States. In Bell, as in this case, the Supreme Court considered whether multiple violations of a statute, occurring in a single transaction, supported multiple convictions under the statute. The specific issue in Bell was whether two offenses or only one offense occurred under the Mann Act, 18 U.S.C. § 2421, where the defendant transported two women across state lines on the same trip and in the same vehicle. The Mann Act" }, { "docid": "15297449", "title": "", "text": "three other cases. See United States v. Pittman, 172 F.3d 922 (D.C.Cir.1998) (table case), available at 1998 WL 939519, at *1; United States v. (John) Richardson, 161 F.3d 728, 730 n. 1 (D.C.Cir.1998); United States v. Hall, 77 F.3d 398, 402 (11th Cir.1996). Because “[t]he legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments,” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the validity of Clark’s claim turns on whether Congress intended the possession of a loaded firearm to constitute one or two “units of prosecution” under 18 U.S.C. § 922(g)(1). See Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). Section 922(g)(1) states: “It shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... [to] possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1) (emphasis added). It would not be unreasonable to read the phrase “any firearm or ammunition” as permitting separate charges for each. Such a reading would be consistent with a congressional intent to permit greater punishment for more dangerous acts, the possession of a gun loaded with ammunition being more dangerous than the possession of either alone. On the other hand, an affirmative intention to permit two separate charges for a gun and its ammunition is not clear on the face of the statute. Indeed, if the statute were read that way, it might just as readily permit fourteen charges against Clark, one for the gun and one for each of its thirteen bullets. In Bell v. United States, the Supreme Court instructed that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” 349 U.S. at 84, 75 S.Ct. 620 (holding that interstate transportation of two women on same trip in same vehicle constitutes single violation of Mann Act, 18 U.S.C. § 2421); see United States v. Anderson, 59 F.3d 1323, 1333" }, { "docid": "7013288", "title": "", "text": "the congressional intent. In Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the defendant was convicted of two counts under the Mann Act for the simultaneous transportation of two women across a state line. The Supreme Court held that, although Congress could declare that simultaneous transportation of two women would constitute two violations, Congress had not done so clearly. The Court held that criminal statutes are to be read “with the saving grace of common sense” but that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses . .” Id. at 622. In United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), 32 counts were charged for violations of the Fair Labor Standards Act; counts 1 through 6 alleged minimum wage violations, one per week for six weeks; counts 7 through 26 charged overtime pay violations, one per week for 20 weeks; and counts 27 through 32 charged record keeping violations, two each for two employees. The district court dismissed all but three counts, holding that the course of conduct rather than the separate actions within the course of conduct constituted the offense. The Supreme Court affirmed. Defendants cite the following language in the Supreme Court’s decision: when choice has to be made between two readings of what conduct Congress has . made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. Id. at 229. The Court ruled, however, that a decision as to the proper “unit of prosecu tion” must be made with reference to congressional intent in the particular statute and stressed the fact that each problem of statutory construction is unique. This case provides the approach to be taken when congressional intent is not clear, but it offers little guidance for the construction of the penalty provisions of the MBTA. The defendants and the United States cite a variety" }, { "docid": "403072", "title": "", "text": "although defendant had known of possible grounds for “a considerable time” previous to the motion). Double Jeopardy Appellant next argues that his conviction on both RICO counts would amount to double jeopardy, because both counts allege the same offense, participation in the same enterprise (the county judge’s office) through the same “pattern of racketeering activity,” i. e. a bribery and kickback pattern. The double jeopardy clause would of course prohibit double punishment for the same offense, but we are of the view that the two counts do not allege the same offense under RICO. We therefore remand both RICO counts, as well as the Travel Act counts, for retrial. As the Supreme Court has explained, It is Congress ... which establishes and defines offenses. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. Brown v. Ohio, 432 U.S. 161, 165 [97 S.Ct. 2221, 2225, 53 L.Ed.2d 187] (1977). But ... Congress has defined a statutory offense by its prescription of the “allowable unit of prosecution,” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 [73 S.Ct. 227, 229, 97 L.Ed. 260] (1952); Bell v. United States, 349 U.S. 81 [75 S.Ct. 620, 99 L.Ed. 905] (1955); Braverman v. United States, 317 U.S. 49 [63 S.Ct. 99, 87 L.Ed. 23] (1942); In re Nielsen, 131 U.S. 176 [9 S.Ct. 672, 33 L.Ed. 118] (1889).... Whether a particular course of conduct involves one or more distinct “offenses” under the statute depends on this congressional choice. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 2181-2182, 57 L.Ed.2d 43 (1978) (footnote omitted). See generally Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 113-19; Note, Twice in Jeopardy, 75 Yale L.J. 262, 811-18 (1965). The language of RICO itself, however, does not reveal what Congress envisioned as the allowable unit of prosecution. The statutory words would support at least four interpretations of the allowable unit of prosecution under RICO. The statute proscribes conducting or participating in enterprises affecting commerce through a pattern of racketeering activity. 18" }, { "docid": "21556449", "title": "", "text": "18 U.S.C. § 922(h)), and United States v. Carty, 447 F.2d 964 (5th Cir.1971) (simultaneous transportation in a single trip of multiple stolen firearms is but one violation of 18 U.S.C. § 922(i)), though neither cites Blockburger nor its test. When a single statutory provision is violated, the relevant inquiry is “[w]hat Congress has made the allowable unit of prosecution,” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). In this respect, “ambiguity” concerning Congress’ intent “should be resolved in favor of lenity,” so that “doubt will be resolved against turning a single transaction into multiple offenses,” Bell, 75 S.Ct. at 622, where “[neither the wording of the statute nor its legislative history points clearly to” the contrary. Ladner, 79 S.Ct. at 214. Bell tells us that where there is simultaneous transportation of two women in a single trip, each woman is not the allowable unit of prosecution under the Mann Act; Ladner instructs that each federal officer wounded in a single discharge of a shotgun is not the unit of prosecution under section 111; Hodges and Carty establish that in instances of simultaneous receipt in a single transaction, or simultaneous transportation in a single trip, of multiple firearms, “Congress did not intend ... to make the firearms themselves the allowable units of prosecution,” Hodges, 628 F.2d at 352, under sections 922(h) and 922(i). The present case, however, is not “on all fours” with these decisions, because in each of them the courts were dealing with individual items which were all part of one general statutory category (women, federal officers, firearms). Here, each item is of a different general statutory category. Section 922(a)(6) speaks of “any firearm or ammunition.” In count four, the “firearm” is alleged to be “one UZI, Model A, 9 Millimeter rifle”; in the parallel count seven, there is no firearm, but rather “ammunition” which is alleged to consist of “one box containing fifty (50) rounds of 9 Millimeter ammunition.” Nevertheless, we conclude that this difference in statutory general categories is not adequate to take this case out" }, { "docid": "23503060", "title": "", "text": "905 (1955) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952)). The prohibited conduct — possession .of any firearm or - ammunition — could arguably occur every time a disqualified person picks up a firearm even though it is the same firearm or every time that person picks up a- different firearm. The language does not delineate whether possession of two firearms — say two six-shooters in a holster — constitutes one or two violations, whether the possession of a firearm loaded with one bullet constitutes one or two violations, or whether-possession of a six-shooter loaded with six bullets constitutes one or two or seven violations. A similar problem was presented in Bell where the defendant was charged with two counts of violating the Mann Act, which prohibits the interstate transportation of “any woman or girl” for immoral purpose's. 18 U.S.C. § 2421. The defendant coneededly transported two women on the same trip and in-the same vehicle. The Supreme Court recognized that Congress could well have made the “simultaneous transportation of more than one woman” a violation, 349 U.S. at 82, 75 S.Ct. 620, but because of the ambiguity in the statute, it resolved the doubt in favor of finding one offense, id. at 84, 75 S.Ct. 620. Through a literal construction of the statute, we could conclude that when “any” is used in context of the singular noun “firearm,” “any” means a single firearm. Through'the same analysis, we could also conclude that “ammunition” is collective so that several rounds possessed at the one time constitutes a single offense. Under this literal interpretation, Dunford would have committed seven offenses, one for each firearm and one for the ammunition. But this literal interpretation would also require that each possession of a firearm constituted an offense, requiring a construction that defines the beginning and ending. It might require ammunition located in different rooms of Dunford’s house to be separate offenses and different calibers of ammunition to support a finding of different offenses. The Supreme Court has cautioned, however, that the question of" }, { "docid": "15297450", "title": "", "text": "ammunition” as permitting separate charges for each. Such a reading would be consistent with a congressional intent to permit greater punishment for more dangerous acts, the possession of a gun loaded with ammunition being more dangerous than the possession of either alone. On the other hand, an affirmative intention to permit two separate charges for a gun and its ammunition is not clear on the face of the statute. Indeed, if the statute were read that way, it might just as readily permit fourteen charges against Clark, one for the gun and one for each of its thirteen bullets. In Bell v. United States, the Supreme Court instructed that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” 349 U.S. at 84, 75 S.Ct. 620 (holding that interstate transportation of two women on same trip in same vehicle constitutes single violation of Mann Act, 18 U.S.C. § 2421); see United States v. Anderson, 59 F.3d 1323, 1333 (D.C.Cir.1995) (en banc). The question of whether section 922(g)(1) is ambiguous has already been decided in this circuit by United States v. Cunningham, 145 F.3d 1385 (D.C.Cir.1998), which considered the propriety of multiple section 922(g)(1) charges for the possession of multiple weapons. Cunningham concluded that the word “any” in the phrase “any firearm or ammunition” creates ambiguity as to the unit of prosecution intended by Congress, and that as a consequence, “[w]hen a felon possesses multiple weapons, only one offense is committed, unless the weapons are stored or acquired at different times or places.” Id. at 1398. Because the phrase is no less ambiguous for charges based on weapons and ammunition than for charges based on multiple weapons, Cunningham compels the conclusion that possession of a loaded weapon constitutes a single offense as well. In so holding, we join every other circuit that has considered the issue. Upon finding that a defendant has been convicted of two charges for a single offense, the usual remedy is to hold that the convictions have merged and order" }, { "docid": "23503059", "title": "", "text": "one disqualifying class only violates § 922(g) once for each act of “possession,” thereby reduces, at the least, Dun-ford’s number of convictions from fourteen to seven. Dunford argues further, however, that he did not perform seven acts of possession, but rather one, which was a “simultaneous possession of six different firearms and ammunition.”' To resolve Dunford’s argument and determine what constitutes an offense under § 922(g), we must begin with the language of the statute itself.. “The ‘first criterion in the interpretive hierarchy [is] a natural reading of the full text.’ ” See Norfolk Southern Corp. v. Commissioner, 140 E.3d 240, 244 (4th Cir.1998) (quoting United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 927, 137 L.Ed.2d 107 (1997)). Section 922(g) makes it unlawful for any member of a disqualified class “to ... possess ... any firearm or ammunition.” 18 U.S.C. § 922(g) (emphasis added). This language presents the recurring question of “[w]hat Congress has made the allowable unit of prosecution.” Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952)). The prohibited conduct — possession .of any firearm or - ammunition — could arguably occur every time a disqualified person picks up a firearm even though it is the same firearm or every time that person picks up a- different firearm. The language does not delineate whether possession of two firearms — say two six-shooters in a holster — constitutes one or two violations, whether the possession of a firearm loaded with one bullet constitutes one or two violations, or whether-possession of a six-shooter loaded with six bullets constitutes one or two or seven violations. A similar problem was presented in Bell where the defendant was charged with two counts of violating the Mann Act, which prohibits the interstate transportation of “any woman or girl” for immoral purpose's. 18 U.S.C. § 2421. The defendant coneededly transported two women on the same trip and in-the same vehicle. The Supreme Court recognized that Congress could well" }, { "docid": "7804326", "title": "", "text": "F.3d 34, 40 (1st Cir.1994). Verrecchia made no such request in this case. He argues nevertheless that it was plain error to fail to give such an instruction, contending that the possession of each firearm is a separate violation of § 922(g)(1) that should be charged in a separate count of the indictment. Verrecchia’s argument raises the question, addressed by the Supreme Court in the leading case of Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), of “[w]hat Congress has made the allowable unit of prosecution under a statute which does not explicitly give the answer.” Id. at 81, 75 S.Ct. 620 (citation and internal quotation marks omitted). The defendant in Bell had been convicted of two violations of the Mann Act, 18 U.S.C. § 2421 (prohibiting the interstate transportation of “any woman or girl” for purposes of prostitution), for transporting two women at the same time. The Court, noting that when Congress chooses to allow multiple prosecutions for a single transaction it has no difficulty expressing its will, found the statute to be ambiguous on the allowable unit of prosecution. See id. at 83, 75 S.Ct. 620. The Court thus applied the “presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment,” and held that the simultaneous transportation of two women was only one violation of the Mann Act. Id. We are the only circuit that has not ruled on “the allowable unit of prosecution” under the felon-in-possession statute (§ 922(g)(1) or its predecessors). The other courts of appeals have addressed the issue and have all agreed that the simultaneous possession of multiple firearms, or a firearm and ammunition, constitutes only one crime. See United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir.1983); United States v. Frankenberry, 696 F.2d 239, 244-45 (3d Cir.1982); United States v. Dunford, 148 F.3d 385, 390 (4th Cir.1998); United States v. Bullock, 615 F.2d 1082, 1084 (5th Cir.1980); United States v. Ro- senbarger, 536 F.2d 715, 721 (6th Cir.1976); McFarland v. Pickett, 469 F.2d 1277, 1279" }, { "docid": "7804325", "title": "", "text": "cure that duplicity. He also argues that if each count charged only one crime, and hence was not duplicitous, the possession of a particular weapon is still an element of the crime on which the jury must be unanimous. A. Duplicity and “the allowable unit of prosecution” “Duplicity is the joining in a single count of two or more distinct and separate offenses.” United States v. Martinez Canas, 595 F.2d 73, 78 (1st Cir.1979). “[T]he prohibition against duplicitous indictments arises primarily out of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense.” United States v. Valerio, 48 F.3d 58, 63 (1st Cir.1995). Although an argument that an indictment should be dismissed as duplicitous is waived if not made before trial, see id.; Fed.R.Crim.P. 12(b)(2), a defendant is still entitled on request to an instruction requiring jury unanimity on which offense (of the two or more alleged in the duplicitous count) he committed, see United States v. Puerta, 38 F.3d 34, 40 (1st Cir.1994). Verrecchia made no such request in this case. He argues nevertheless that it was plain error to fail to give such an instruction, contending that the possession of each firearm is a separate violation of § 922(g)(1) that should be charged in a separate count of the indictment. Verrecchia’s argument raises the question, addressed by the Supreme Court in the leading case of Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), of “[w]hat Congress has made the allowable unit of prosecution under a statute which does not explicitly give the answer.” Id. at 81, 75 S.Ct. 620 (citation and internal quotation marks omitted). The defendant in Bell had been convicted of two violations of the Mann Act, 18 U.S.C. § 2421 (prohibiting the interstate transportation of “any woman or girl” for purposes of prostitution), for transporting two women at the same time. The Court, noting that when Congress chooses to allow multiple prosecutions for a single transaction it has no difficulty expressing its will," }, { "docid": "11563393", "title": "", "text": "in a single count.” United States v. Marshall, 75 F.3d 1097, 1111 (7th Cir.1996). We have explained that “the prohibition of duplicitous counts is embodied in Rule 8(a) of the Federal Rules of Criminal Procedure, which provides for ‘a separate count for each offense.’ ” United States v. Berardi, 675 F.2d 894, 897 n. 5 (7th Cir.1982). However, an indictment charging multiple acts in the same count, each of which could be charged as a separate offense, may not be duplicitous where these acts comprise a continuing course of conduct that constitutes a single offense. See id. at 898. Buehmeier contends that § 922(g)(1) and § 922(j) both contemplate a violation to include the possession of a single firearm. Because the counts against him included multiple firearms, Buehmeier asserts that they each encompass more than one offense and are therefore impermissi-bly duplicitous. In order to address Buchmeier’s argument we must determine Congress’ intended unit of prosecution for these subsections. Section 922(g)(1) prohibits a convicted felon from “possessing] ... any firearm” that has traveled in interstate commerce. Likewise, § 922(j) makes it “unlawful for any person to receive ... any stolen firearm” that has traveled in interstate commerce. Although the use of the word “any” in these subsections creates “[uncertainty as to the unit of prosecution intended by Congress,” United States v. Cunningham, 145 F.3d 1385, 1398 (D.C.Cir.1998), this court has found guidance for interpreting such statutes in the Supreme Court’s decision in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). See McFarland v. Pickett, 469 F.2d 1277 (7th Cir.1972); United States v. Oliver, 683 F.2d 224 (7th Cir. 1982). In Bell, the Supreme Court reviewed a provision of the Mann Act, 18 U.S.C. § 2421, which explained that “ ‘[wjhoever knowingly transports in interstate or foreign commerce ... any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose .... Shall be fined not more than $5,000 or imprisoned not more than five years, or both.’ ” 349 U.S. at 82, 75 S.Ct. 620 (quoting 18 U.S.C. §" }, { "docid": "15739312", "title": "", "text": "where the question is whether a single transaction may give rise to separate punishments or prosecutions under separate statutes, see Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L,Ed.2d 616 (1975); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gaviares v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), and the double jeopardy cases which discuss the propriety of multiple prosecutions under the same statute for separate and discrete acts, see Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906). . In a concurring opinion, Judge Rosenn of the Third Circuit, sitting by designation, expressed the view that only one transaction had oecurred and, therefore, only one count should have been charged. 510 F.2d at 995. (Rosenn, J., concurring). Accord, United States v. Driscoll, 454 F.2d 792, 801 (5th Cir. 1972) (transportation in interstate commerce of 2 falsely made or forged checks only 1 violation of 18 U.S.C.A. § 2314). Judge Rosenn relied on Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), wherein the Supreme Court held that transporting 2 or more women in interstate commerce on the same occasion constituted only one violation of the Mann Act, 18 U.S.C. §2421. 349 U.S. at 84, 75 S.Ct. 620, 622. In so holding the Bell Court stated; \"[i]f Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses . . . .” Id, Bell is not controlling in this case because our problem is deciding whether multiple transactions should be charged as one or more than one offense, and not whether a single act can be the basis for more than one count. . The analysis we adopt today is meant to apply to any and all of the methods of “taking” proscribed by §" }, { "docid": "21556448", "title": "", "text": "it violates but a single statute, § 37 of the Criminal Code.”). See also Albernaz, 101 S.Ct. at 1142-43 (single conspiracy denounced by separate statutes constitutes separate offenses under Block-burger; distinguishing Braverman because only one conspiracy statute involved there). Indeed, decisions such as Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958) (defendant’s single discharge of a shotgun is but one violation of the predecessor to 18 U.S.C. § 111, denouncing assault on federal officers, notwithstanding that two such officers were wounded), and Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (single transportation of two women but one violation of Mann Act), can be reconciled with Blockburger (though neither cites it nor discusses its test) only on the assumption that Blockburger does not generally apply to single act-single statutory provision cases. The same assumption implicitly underlies our decisions in United States v. Hodges, 628 F.2d 350, 351-52 (5th Cir.1980) (simultaneous receipt of multiple firearms in a single transaction constitutes but one violation of 18 U.S.C. § 922(h)), and United States v. Carty, 447 F.2d 964 (5th Cir.1971) (simultaneous transportation in a single trip of multiple stolen firearms is but one violation of 18 U.S.C. § 922(i)), though neither cites Blockburger nor its test. When a single statutory provision is violated, the relevant inquiry is “[w]hat Congress has made the allowable unit of prosecution,” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). In this respect, “ambiguity” concerning Congress’ intent “should be resolved in favor of lenity,” so that “doubt will be resolved against turning a single transaction into multiple offenses,” Bell, 75 S.Ct. at 622, where “[neither the wording of the statute nor its legislative history points clearly to” the contrary. Ladner, 79 S.Ct. at 214. Bell tells us that where there is simultaneous transportation of two women in a single trip, each woman is not the allowable unit of prosecution under the Mann Act; Ladner instructs that each federal officer wounded in a single discharge of a shotgun" }, { "docid": "7013287", "title": "", "text": "n. 2. This comment implies that the court considered each bird death to be the appropriate “unit of prosecution” although not the appropriate “unit for sentencing.” In the absence of a written opinion on this issue, this court is unable to find precedential value in the FMC Corp. decision. Defendants here argue that FMC Corp. was correct in combining all deaths within a single species on a single day into one count. Although it is true that the defendant in FMC Corp. was so charged, the case offers no support for the proposition that the Act requires that approach. The court made no decision on that point because it was not raised. Defendants’ primary argument is the Congress did not intend that prosecutions should be brought separately for each bird death. They state that the “unit of prosecution” is the action resulting in the bird death or deaths. Defendants discuss analogous cases which they argue establish that multiple counts are improper, and they use the legislative history of the MBTA to demonstrate their interpretation of the congressional intent. In Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the defendant was convicted of two counts under the Mann Act for the simultaneous transportation of two women across a state line. The Supreme Court held that, although Congress could declare that simultaneous transportation of two women would constitute two violations, Congress had not done so clearly. The Court held that criminal statutes are to be read “with the saving grace of common sense” but that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses . .” Id. at 622. In United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), 32 counts were charged for violations of the Fair Labor Standards Act; counts 1 through 6 alleged minimum wage violations, one per week for six weeks; counts 7 through 26 charged overtime pay violations, one per week for 20 weeks; and" }, { "docid": "23503061", "title": "", "text": "have made the “simultaneous transportation of more than one woman” a violation, 349 U.S. at 82, 75 S.Ct. 620, but because of the ambiguity in the statute, it resolved the doubt in favor of finding one offense, id. at 84, 75 S.Ct. 620. Through a literal construction of the statute, we could conclude that when “any” is used in context of the singular noun “firearm,” “any” means a single firearm. Through'the same analysis, we could also conclude that “ammunition” is collective so that several rounds possessed at the one time constitutes a single offense. Under this literal interpretation, Dunford would have committed seven offenses, one for each firearm and one for the ammunition. But this literal interpretation would also require that each possession of a firearm constituted an offense, requiring a construction that defines the beginning and ending. It might require ammunition located in different rooms of Dunford’s house to be separate offenses and different calibers of ammunition to support a finding of different offenses. The Supreme Court has cautioned, however, that the question of what constitutes the allowable unit of prosecution “cannot be answered merely by a literal reading” of the statute. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952) (examining the allowable unit of prosecution for record-keeping violations under the-Fair Labor Standards Act). Moreover, when such ambiguity exists, we are instructed that such “ambiguity should be resolved in favor of lenity.” Bell, 349 U.S. at 83, 75 S.Ct. 620. This lenity does not arise from any sympathy for' the defendant who has committed a crime; “[i]t merely means that if Congress does not .fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” Id. at 84, 75 S.Ct. 620. We applied these principles in United States v. Mason, 611 F.2d 49, 52-53 (4th Cir.1979), to hold that defendant, who had purchased multiple firearms in one transaction and had misrepresented his qualification to possess those firearms on separate information forms submitted for each firearm, could not" }, { "docid": "11563394", "title": "", "text": "commerce. Likewise, § 922(j) makes it “unlawful for any person to receive ... any stolen firearm” that has traveled in interstate commerce. Although the use of the word “any” in these subsections creates “[uncertainty as to the unit of prosecution intended by Congress,” United States v. Cunningham, 145 F.3d 1385, 1398 (D.C.Cir.1998), this court has found guidance for interpreting such statutes in the Supreme Court’s decision in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). See McFarland v. Pickett, 469 F.2d 1277 (7th Cir.1972); United States v. Oliver, 683 F.2d 224 (7th Cir. 1982). In Bell, the Supreme Court reviewed a provision of the Mann Act, 18 U.S.C. § 2421, which explained that “ ‘[wjhoever knowingly transports in interstate or foreign commerce ... any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose .... Shall be fined not more than $5,000 or imprisoned not more than five years, or both.’ ” 349 U.S. at 82, 75 S.Ct. 620 (quoting 18 U.S.C. § 2421). The Court addressed the question of whether an individual who admitted to transporting two women in the same car on the same trip for purposes prohibited by § 2421 had committed one or two violations of that section. See id. at 82-83, 75 S.Ct. 620. Finding there to be no clear congressional expression of a desired unit of prosecution, the Court found that the defendant should only have been charged with one violation. See id. at 83, 75 S.Ct. 620. The Court explained that when “Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” Id. at 84, 75 S.Ct. 620. Relying on the Court’s reasoning in Bell, this court evaluated the language of § 922(j) in McFarland v. Pickett, 469 F.2d 1277 (7th Cir.1972). The question in McFarland was whether a defendant who was found with two stolen firearms could be charged with a separate count for each firearm in his possession. See 469 F.2d at 1278." }, { "docid": "15101522", "title": "", "text": "“No matter how clearly it spoke, Congress could not constitutionally provide for cumulative punishments unless each statutory offense required proof of a fact that the other did not under the criterion of Blockburger.” 450 U.S. at 345, 101 S.Ct. at 1145-46. Although we are not called upon by the facts before us to apply the Blockburger test, we nevertheless face a similar constitutional question. Following Albernaz, if we find that Congress intended multiple sentences to be imposed for simultaneous possession of different types of drugs, any question of violation of the double jeopardy clause is foreclosed. More applicable to our present discussion than Blockburger is Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the case Davis relies upon. Bell received consecutive sentences on two counts of violating the Mann Act, 18 U.S.C. §§ 2421-2424, making it unlawful to transport in interstate commerce “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” Bell transported two women on the same trip and in the same vehicle, and therefore claimed that he had committed only a single offense and could not be subjected to cumulative punishment. The Court stated that while Congress could constitutionally make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman, the question was whether it was Congress’s intent to do so. Finding that the statute could be read as imposing either single or multiple punishment, the Court found in favor of the defendant. The Court stated, When Congress has the will it has no difficulty in expressing it — when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.... It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement" }, { "docid": "15101521", "title": "", "text": "what punishment the Legislative Branch intended to be imposed.” 445 U.S. at 698, 100 S.Ct. at 1441. Justice Blackmun’s suggestion was adopted by the Court in Albernaz, where it stated, “[T]he question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended ... to impose multiple punishment, imposition of such sentences does not violate the Constitution.” 450 U.S. at 344, 101 S.Ct. at 1145. It thus appears that the Supreme Court has decided that Congress can never violate the double jeopardy clause in imposing criminal penalties. Rather, the double jeopardy clause is aimed at prosecutors and judges to ensure that a defendant is not placed in jeopardy twice for the same offense. The Blockburger test, then, is merely a tool used to divine legislative intent, rather than to test the constitutionality of statutory punishments. This reading of the Albernaz majority opinion is bolstered by language in a concurring opinion by three Justices which takes exception to the statement quoted above: “No matter how clearly it spoke, Congress could not constitutionally provide for cumulative punishments unless each statutory offense required proof of a fact that the other did not under the criterion of Blockburger.” 450 U.S. at 345, 101 S.Ct. at 1145-46. Although we are not called upon by the facts before us to apply the Blockburger test, we nevertheless face a similar constitutional question. Following Albernaz, if we find that Congress intended multiple sentences to be imposed for simultaneous possession of different types of drugs, any question of violation of the double jeopardy clause is foreclosed. More applicable to our present discussion than Blockburger is Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the case Davis relies upon. Bell received consecutive sentences on two counts of violating the Mann Act, 18 U.S.C. §§ 2421-2424, making it unlawful to transport in interstate commerce “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” Bell transported two women on the same trip and in" }, { "docid": "8352376", "title": "", "text": "a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) constituted “error.” See Olano, 507 U.S. at 732-33, 113 S.Ct. 1770 (noting that “[djeviation from a legal rule” constitutes “error” under Rule 52(b)). This, in turn, requires us to determine “ ‘[w]hat Congress has made the allowable unit of prosecution’ ” for purposes of § 922(g)(1). See Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952)). Our starting point is the Supreme Court’s decision in Bell v. United States. In Bell, as in this case, the Supreme Court considered whether multiple violations of a statute, occurring in a single transaction, supported multiple convictions under the statute. The specific issue in Bell was whether two offenses or only one offense occurred under the Mann Act, 18 U.S.C. § 2421, where the defendant transported two women across state lines on the same trip and in the same vehicle. The Mann Act made it a felony to transport in interstate commerce “ ‘any woman or girl for the purpose of prostitution.’ ” Bell, 349 U.S. at 82, 75 S.Ct. 620 (quoting § 2421) (emphasis added). Analyzing § 2421, the Court found no clear statement of intent as to the allowable unit of prosecution and commented that Congress surely could have “defin[ed] what it desirefd] to make the unit of prosecution.” Id. at 83, 75 S.Ct. 620. The Court then determined that “[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity” for the defendant. Id. Accordingly, the Court further determined that when Congress fails to set the unit of prosecution “clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” Id. at 84, 75 S.Ct. 620. Applying this rule to the facts before it, the Court held that only one offense occurred under the Mann Act. See id. at 82-84, 75 S.Ct. 620. This Court has not" }, { "docid": "23503062", "title": "", "text": "what constitutes the allowable unit of prosecution “cannot be answered merely by a literal reading” of the statute. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952) (examining the allowable unit of prosecution for record-keeping violations under the-Fair Labor Standards Act). Moreover, when such ambiguity exists, we are instructed that such “ambiguity should be resolved in favor of lenity.” Bell, 349 U.S. at 83, 75 S.Ct. 620. This lenity does not arise from any sympathy for' the defendant who has committed a crime; “[i]t merely means that if Congress does not .fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” Id. at 84, 75 S.Ct. 620. We applied these principles in United States v. Mason, 611 F.2d 49, 52-53 (4th Cir.1979), to hold that defendant, who had purchased multiple firearms in one transaction and had misrepresented his qualification to possess those firearms on separate information forms submitted for each firearm, could not be convicted of separate offenses for making false statements in connection with each firearm. Similarly, in United States v. Mullins, 698 F.2d 686 (4th Cir.1983), while we held that multiple possession of firearms at different times were separate offenses under 18 U.S.C. § 1202(a), a now-repealed statutory ancestor of § 922(g), we stated the rule that “when a convicted felon acquires two or more firearms in one transaction and stores and possesses them together, he commits only one offense under § 1202(a)(1).” Id. at 687. We will apply the rule stated in Mullins to hold now that Dunford’s possession of the six firearms and ammunition, seized at the same time from his house, supports only one conviction of 18 U.S.C. § -922(g). In so holding, we join the majority of circuits which have reached a similar conclusion. See, e.g., United States v. Keen, 104 F.3d 1111, 1119 (9th Cir.1996); United States v. Hutching, 75 F.3d 1453, 1459 (10th Cir.1996) (“The simultaneous possession of multiple firearms generally constitutes pnly ... one offense unless there is evidence" } ]

[ { "docid": "22748700", "title": "", "text": "join the opinion of the Court, I write to emphasize the significance of the texts of the Acts of 1933 and 1934 and especially the language of § 10 (b) and Rule 10b-5. I The starting point in every case involving construction of a statute is the language itself. The critical phrase in both the statute and the Rule is “in connection with the purchase or sale of any security.” 15 U. S. C. § 78j (b); 17 CFR § 240.10b-5 (1975) (emphasis added). Section 3 (a) (14) of the 1934 Act, 15 U. S. C. § 78c (a) (14), provides that the term “sale” shall “include any contract to sell or otherwise dispose of” securities. There is no hint in any provision of the Act that the term “sale,” as used in § 10 (b), was intended — in addition to its long-established legal meaning — to include an “offer to sell.” Respondent, nevertheless, would have us amend the controlling language in § 10 (b) to read: “in connection with the purchase or sale of, or an offer to sell, any security.” Before a court properly could consider taking such liberty with statutory language there should be, at least, unmistakable support in the history and structure of the legislation. None exists in this case. Nothing in the history of the 1933 and 1934 Acts supports any congressional intent to include mere offers in § 10 (b). Moreover, as the Court’s opinion indicates, impressive evidence in the texts of the two Acts demonstrates clearly that Congress selectively and carefully distinguished between offers, purchases, and sales. For example, § 17 (a), the antifraud provision of the 1933 Act, 15 U. S. C. § 77q (a), expressly includes “offer[s]” of securities within its terms while § 10 (b) of the 1934 Act and Rule 10b-5 do not. The 1933 Act also defines “offer to sell” as something distinct from a sale. § 2 (3), 15 U. S. C. § 77b (3). If further evidence of congressional intent were needed, it may be found in the subsequent history of these Acts. As noted" } ]

[ { "docid": "23663488", "title": "", "text": "brought on behalf of and for the benefit of Lum’s, Inc. Essentially both complaints allege that fraudulent activities took place in connection with the sale of Caesars Palace to Lum’s, similar to the allegations made in Brooks and Fenichal. In Kraut, the principal-seller defendants have moved this Court to dismiss both the first and second causes of action for failure to state a claim under either §§11 or 17 of the 1933 Act or §§ 10(b) or 14(a) of the 1934 Act and under Rule 10b-5. I Movants urge dismissal of plaintiff’s claims under § 17 of the 1933 Act, 15 U.S.C. § 77q, § 10(b) of the 1934 Act, 15 U.S.C. § 78j(b), and Rule 10b-5 on the basis that plaintiff must demonstrate some reliance upon false and misleading information in their role as purchaser or seller and that such allegations are not present in the instant complaint. It is contended that, as the securities at issue were issued by Caesars World to the public and were not purchased by the corporation, the requisite element of reliance cannot be shown. We cannot agree with the defendant’s characterization of this suit. The complaint before us alleges the misappropriation of the assets of Caesars Palace by the named defendants. It alleges that defendants enriched themselves by means of fraudulent sales of Lum’s securities through the use of misleading prospectuses and other writings and by artificial inflation of the price of Lum’s stock to the detriment of Lum’s and its shareholders. Such charges are surely sufficient to sustain a derivative claim for relief under the federal securities laws and plaintiff is clearly a proper party to assert a claim of this type. Section 10(b) outlaws the use of “any manipulative or deceptive device or contrivance” in connection with the purchase or sale of any security. The Act protects corporations as well as individuals who were sellers of a security. Lum’s was allegedly injured through the use of deceptive devices and manipulative practices which deprived it of full consideration and value in the transactions at issue. If these allegations are substantiated, Lum’s may" }, { "docid": "23450969", "title": "", "text": "claim in this count is that the acts of defendants were in violation of Section 10(b) of the 1934 Act and of Rule 10b-5 of the Securities and Exchange Commission (the “Commission”) thereunder. The cited statute and Rule make it unlawful to employ fraud “in connection with the purchase or sale of any security.” We may put to one side most of the averments of the first count. The wrongful use of the funds of Syracuse China to defeat the tender offer might give rise to a derivative action in equity to recover for Syracuse China the amount of those funds. This, however, is not such an action and if it were, there would be no jurisdiction to entertain it because there is no diversity of citizenship. There remain averments which are appropriate to a Section 10(b) claim, namely, that there were untrue statements of material facts by defendants to stockholders of Syracuse China. The history of Rule 10b-5 has been set out in the Birnbaum opinion. A summary will suffice here. The Securities Act of 1933 (15 U.S.C. § 77a and following; the “1933 Act”) contained a provision (Section 17(a); 15 U.S.C. § 77q) making it unlawful to employ fraud (including half-truths) “in the offer or sale of any securities.” This applied only to fraud on purchasers of securities. The 1934 Act contained a broader provision, Section 10(b), conferring rule making power on the Commission in respect of fraud “in connection with the purchase or sale of any security * * * ” (emphasis supplied). The rule making power thus included fraud on sellers of securities. No rule was adopted for some years and as long as there was no rule, fraud on a purchaser was actionable under the 1933 Act but fraud on a seller was not actionable under either the 1933 Act or 1934 Act. The Commission in May 1942 acted to close this loophole by adopting Rule 10b-5. This rule makes it unlawful to employ fraud (including half-truths) “in connection with the purchase or sale of any security * * * ” (emphasis supplied), thus making" }, { "docid": "23364747", "title": "", "text": "upon in this complaint. Count I charges a breach of Section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. § 78j(b)) and Rule 10b-5 thereunder (17 C.F.R. § 240.10(b)- (5) while Count II alleges a violation of Section 17(a) of the Securities Act of 1933 (15 U.S.C. § 77q(a)). This being an appeal from an order denying a motion to dismiss, the allegations concerning the use of the jurisdictional means and the making of material misrepresentations, the omissions to state material facts or the use of manipulative or fraudulent devices are treated as true by defendants. Their argument is based upon the phrase “in connection with the purchase or sale of any security” in Section 10(b) and Rule 10b-5 and the phrase “sale of any securities” in Section 17(a). Defendants assert that these anti-fraud provisions are inapplicable on their face on the ground that plaintiff’s interest in the pension fund is not a “security” and was not acquired by him in a “sale.” Plaintiff’s Interest in the Pension Fund Is a “Security” The term “security” is defined in Section 2(1) of the 1933 Act (15 U.S.C. § 77b(l)) and in Section 3(a)(10) of the 1934 Act (15 U.S.C. § 78e(a)(10)). In each statute, the definition of “security” includes any “investment contract.” Since the same Congress which passed both the 1933 and 1934 Acts clearly indicated that its definition of “security” in the 1934 Act was intended to be “ ‘substantially the same * * *’ ” as in the 1933 Act, cases construing either definition can be used interchangeably. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 847 n. 12, 95 S.Ct. 2051, 44 L.Ed.2d 621; Tcherepnin v. Knight, 389 U.S. 332, 336, 342, 88 S.Ct. 548, 19 L.Ed.2d 564. Therefore we need not break out separate lines of analysis in order to determine the existence of a security under Section 10(b) of the 1934 Act and Section 17(a) of the 1933 Act. In construing the statutory term “security,” guidance is provided by two overriding principles. First, as remedial legislation the securities acts should be construed broadly" }, { "docid": "16486529", "title": "", "text": "prejudice. Plaintiffs now appeal the district court’s Rule 12(b)(6) dismissal of their § 10(b) and Rule 10b-5 claims. ANALYSIS We review de novo a district court’s dismissal of a plaintiff’s claims pursuant to Fed. R.Civ.P. 12(b)(6). See In re VeriFone Securities Litigation, 11 F.3d 865, 868 (9th Cir.1993). I. STANDING A. The Investor Class Section 10(b) and Rule 10b-5 prohibit deceptive practices “in connection with the purchase or sale of any security.” In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court interpreted this restriction to limit relief under Rule 10b-5 to plaintiffs who had either purchased or sold securities. The plaintiffs in Blue Chip alleged that the offer- or had made misleadingly pessimistic statements in connection with its offering, causing the plaintiffs to forego purchasing shares at bargain prices. The Court noted that the limitation of § 10(b) to deception “in connection with the purchase or sale of any security” was significantly narrower than § 17(a) of the 1933 Securities Act, which reaches fraud “in the offer or sale of securities.” See id. at 733-34, 95 S.Ct. at 1924-25 (emphasis added). After discussing the additional policy reasons for limiting Rule 10b-5 relief to purchasers and sellers, the Court held that the plaintiffs were not entitled to maintain their action. Id. at 749, 95 S.Ct. at 1931-32. The defendants here argue that the Investor Class is in the same position as the plaintiffs in Blue Chip: they neither purchased nor sold any of the Units in issue. Section 3(a) of the 1934 Act, however, defines a “purchase” or “sale” of securities to include “any contract” to purchase or sell a security. See Blue Chip, 421 U.S. at 750-51, 95 S.Ct. at 1932-33. The Investor Class claims that it had contracts to purchase securities, and that its members accordingly have standing as “purchasers” to bring this action under § 10(b) and Rule 10b-5. We conclude that the members of the Investor Class did not have binding contracts to purchase securities from Stratosphere sufficient to confer standing under § 10(b). In" }, { "docid": "10014291", "title": "", "text": "44 L.Ed.2d 539 (1975), squarely supports the denial of standing to options traders. The plaintiffs in Blue Chip were offerees of a stock offering made pursuant to an antitrust consent decree. They alleged that affirmative misrepresentations and nondisclosures by the defendant offeror fraudulently induced the offerees not to purchase the stock. The Court denied standing, holding that a private damages action under section 10(b) and Rule 10b-5 is confined to actual purchasers or sellers of securities. Id. at 747-49, 95 S.Ct. at 1931-32. Options traders are, of course, purchasers or sellers of securities as the term “security” is defined by section 3(a)(10) of the 1934 Act. 15 U.S.C. § 78c(a)(10); see Blue Chip, 421 U.S. at 750-51, 95 S.Ct. at 1932. The conclusion that plaintiff in the instant case has satisfied the purchaser or seller requirement of Blue Chip, however, does not follow from this premise. Blue Chip can only be read as requiring that the plaintiff in a section 10(b) case be an actual purchaser or seller of securities issued by the defendant corporation. The call options purchased by plaintiff are securities within the meaning of the 1934 Act, but they are not securities in Beneficial. Like the plaintiffs in Blue Chip, plaintiff Deutschman is “a complete stranger to the corporation,” 421 U.S. at 755, 95 S.Ct. at 1934, without standing to assert a section 10(b) violation. Notwithstanding the obstacles erected by Chiarella and Blue Chip, plaintiff appears to assert four discrete theories in support of his claim. First, plaintiff alleges defendants engaged in “manipulative or deceptive” acts in violation of section 10(b) of the 1934 Act. The short answer to this contention is that section 10(b) proscribes manipulative and deceptive acts only “in connection with the purchase or sale of any security.” 15 U.S.C. § 78j(b). Similarly, Rule 10b-5 only prohibits fraudulent acts “in connection with the purchase or sale of any security.” 17 C.F.R. § 240.10b-5. There is no allegation that defendants either traded in options on Beneficial stock during the period in question or directed to the options market their alleged misrepresentations and nondisclosures. Plaintiffs trading" }, { "docid": "5556938", "title": "", "text": "plaintiffs to plead with specificity that NationsMart was a seller under § 12(2). IV. For the reasons given below, we uphold the District Court’s dismissal of the plaintiffs’ claim under §§ 10(b) and 20 of the Securities Exchange Act of 1934 and SEC Rule 10b-5. A. Rule 10b-5, promulgated by the SEC pursuant to § 10(b) of the Securities Exchange Act of 1934, prohibits fraudulent conduct in the sale and purchase of securities. 15 U.S.C. § 78j (1994); 17 C.F.R. § 240.10b-5 (1997); Harris v. Union Electric Co., 787 F.2d 355, 362 (8th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 94, 93 L.Ed.2d 45 (1986). Section 20 of the Securities Exchange Act extends liability under § 10(b) and Rule 10b-5 to any “controlling person.” 15 U.S.C. § 78t(a) (1994). To recover in a private action brought under Rule 10b-5, a plaintiff must establish: 1) that the defendant acted in a manner prohibited by the Rule, whether it be that the defendant employed a device, scheme, or artifice to defraud, made misrepresentations or omissions of material fact, or engaged in acts, practices or courses of business that operate as a fraud or deceit; 2) causation, often analyzed in terms of materiality and reliance; 3) damages; and 4) that the fraudulent activity occurred in connection with the purchase and sale of a security. Harris v. Union Electric Co., 787 F.2d at 362. Proof of scienter, or the “intent to deceive, manipulate, or defraud,” is necessary to prevail in a 10b-5 action. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 1381, 47 L.Ed.2d 668 (1976). Because a Rule 10b-5 claim is necessarily grounded in fraud, the more stringent pleading requirements of Federal Rule of Civil Procedure 9(b) apply to complaints alleging a 10b-5 violation. Arazie v. Mullane, 2 F.3d 1456, 1465 (7th Cir.1993). The Code of Federal Regulations applies a “safe harbor” rule to Rule 10b-5 which protects forward-looking statements from liability. 17 C.F.R. § 240.3b-6 (1997). This regulation is identical to the regulations which protect forward-looking statements under the Securities Act of 1933. See 17 C.F.R. §" }, { "docid": "8203350", "title": "", "text": "qua security was not the object of any “sale” by defendants to plaintiff, as that term is defined in Section 2(3) of the Securities Act of 1933, 15 U.S.C. § 77b(3), and in Section 3(a) (14) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a) (14). The former section defines the term “sale” as including “every contract of sale or disposition of a security or interest in a security, for value.” The latter section states that the term “sale” includes “any contract to sell or otherwise dispose of.” Indicative of the broad reach of such a concept of “sale” is the treatment of defendants’ motion to dismiss the complaint for lack of jurisdiction over the subject matter, and for failure to state a claim upon which relief can be granted, in Voege v. American Sumatra Tobacco Corp., 241 F.Supp. 369 (D.Del.1965). In Voege, a minority shareholder brought a derivative action in which she alleged various violations of Section 10 (b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically, plaintiff alleged a fraudulent course of conduct by which defendants induced a merger between the company in which she held shares and another, the result of which was a required surrender of her stock at a price grossly below its real value. Defendants argued that no rights could accrue to the plaintiff under Rule 10b-5 inasmuch as she never “sold” her stock pursuant to the tender offer of a fixed price per share, but rather demanded an appraisal under the Delaware Corporation Law. In denying defendants’ motion to dismiss the complaint, the court noted the breadth of the statutory definition of sale, acknowledged the contractual nature of the charter of a corporation between the corporation and its shareholders, and between the shareholders inter sese, and held the merger agreement by which shareholders would either surrender their shares for the amount specified in the agreement or accept their appraised value to constitute a contract to sell or otherwise dispose of securities under the 1934 Act. The Court stated: “The frauds allegedly perpetrated upon plaintiff were, in" }, { "docid": "23622348", "title": "", "text": "in violation of state and federal law, which would have an adverse impact on the RelationServe [Media] financial condition. (Compl: ¶ 52 (emphasis added).) Count I thus alleged that Media had violated the 1933 Act by selling securities under a false or misleading registration statement(s), prospectus, or oral communication, by failing to disclose its use of unregistered brokers and the contingent liability arising therefrom (the “unregistered-broker theory”). Count II, “Violation of Securities Act of 1933,” incorporated all of the preceding allegations of the complaint, including Count I. Count II alleged that Media and the Officers, who were “controlling persons, offered and sold the shares of RelationServe [Media] in violation of 15 U.S.C.A. § 111” (CompU 56.) Because I construe Count I to seek relief under § 12, codified at 15 U.S.C. § 111, Count II added nothing to Count I. Count III, ‘Violation of Securities Exchange Act of 1934, Rule 10b-5,” incorporated all of Counts I and II and further asserted that Media and the Officers “offered and sold the shares of RelationServe [Media] in violation of’ the Securities Exchange Act of 1934 (the “1934 Act”), 15 U.S.C. § 77q, and Rule 10b-5. (CompU 60.) Section 10(b) of the 1934 Act, and Rule 10b-5, provide relief for any person who relies on a false or misleading statement in connection with the purchase or sale of a security. More specifically, Count III alleged that “[t]he Defendants ... offered and sold the shares ... in violation of ... Rule 10b-5.” (Comply 60.) Because Media and the Officers only “offered and sold” shares to the private offering purchasers, the § 10(b), Rule 10b-5 claim was limited to the private offering subclass. The complaint did not directly identify any false or misleading statement made by any defendant in connection with Media’s sale of shares to Thompson or any other private offering purchaser; nor did the complaint allege any device or scheme to defraud. Thompson did, however, refer to the omissions in Count I’s section 11 and 12 claims. (Compl. ¶ 58 (“As stated herein, the registration statement and prospectus contained untrue statements of material" }, { "docid": "7886878", "title": "", "text": "to O.R.S. 59.115 and R.C.W. 21.20.430. Finally, plaintiffs urge that the Preliminary Injunction of November 8, 1972, be made permanent and the impounded records be delivered to the plaintiffs. V. SECURITIES LAWS Section 10(b) of the 1934 Act and Rule 10b-5 require that the act complained of be “in connection with the purchase or sale of any security”. In a private action for damages under Section 10(b), the plaintiff must be a purchaser or seller of the securities with respect to which he claims actionable fraud has occurred. Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339 (9th Cir. 1972). Based on my Opinion of June 6, 1973, in the companion case of Financial Programs, Inc., et al. v. Foss Financial, Inc., Civil No. 72-848, I conclude that FPI cannot recover under Section 10(b) of the 1934 Act. Although the Funds were purchasers of the securities, they were not purchasers protected by Section 10(b) and Rule 10b-5. Only a defrauded purchaser or seller is extended protection under Rule 10b-5. Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2nd Cir. 1952). Furthermore, the plaintiff must have purchased or sold the securities in reasonable reliance upon the misrepresentations of the defendant. Raschio v. Sinclair, 486 F.2d 1029 (9th Cir. Nov. 2, 1973). If any misrepresentations were made by the defendants, they were made to the shareholders, not to the Funds. If there was any securities fraud, it was perpetrated on the shareholders, not the Funds. The Funds were not defrauded purchasers, nor did they purchase the securities in reliance upon representations made by the defendants. Plaintiffs also have failed to state a valid claim under Section 17(a) of the 1933 Act. Section 17(a) is even narrower than 10(b) with respect to the persons who may be liable. It prohibits fraud “in” the offer or sale of securities rather than merely “in connection with” an offer or sale. Section 17(a) applies only to fraud by sellers of securities. The defendants did not sell any of the securities in question. Alleging violation of an NASD rule does not state a federal claim. The NASD" }, { "docid": "6180278", "title": "", "text": "section and rule. Section 10(b) of the 1934 Act is entitled “Regulation Of The Use of Manipulative And Deceptive Devices”, and reads in part as follows: “It shall be unlawful '* * * (b) To use or employ, in connection with the purchase or sale of any security * * * any manipulative or deceptive device or contrivance in contra vention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” Rule X-10B-5 provides that it shall be unlawful “(1) To employ any device, scheme or artifice to defraud, (2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements' made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.” Section 10(b) of the 1934 Act and Rule X-10B-5 were clearly not intended to supplant Section 11 of the 1933 Act. Section 11 of the 1933 Act is entitled “Civil liabilities on account of false registration statement”. It relates to a limited special subject, and gives a new remedy to a purchaser of a security where the Registration Statement contains untrue statements or omissions of material facts. Section 10(b) of the 1934 Act is, on the other hand, in general language and prohibits the use in connection with any purchase or sale of a security of “any manipulative or deceptive device or contrivance”. These words have been given a broad interpretation (see Geismar v. Bond & Goodwin, D.C., 40 F.Supp. 876, 878; Charles Hughes & Co. v. Securities and Exchange Comm., 2 Cir., 139 F.2d 434, 436), but they should not be construed so broadly as to make an action which is maintainable under Section 11 of the 1933 Act also maintainable under Section 10(b) of the 1934 Act. The settled rule of statutory construction is that, where there is a special statutory" }, { "docid": "16554672", "title": "", "text": "memorandum of defendant KDI (doc. 13, pp. 7-11) and is adopted by defendants Hartsock, Walter G. Cox, and Cors, Hair and Hartsock. The specific question relating to the plaintiffs herein is a part of the general area of law concerning the private, plaintiffs’ rights to maintain a civil action for damages under the federal securities statutes. This general area of law surrounding Rule 10b-5 has been described by the Supreme Court as having a “peculiar blend of legislative, administrative, and judicial history.” This “peculiar blend” began with the legislative enactment of the Securities Act of 1933, which is best described as a disclosure statute, and the Securities Exchange Act of 1934,' which is a regulatory statute. Title II of the- 1934 Act is an amendment to the 1933 Act, and it is Section 10 of the 1934 Act that makes it “unlawful for any person . (b) [t]o use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe . .” In 1942 the Securities and Exchange Commission, pursuant to the enabling authority of Section 10(b), promulgated Rule 10b-5 thereunder (17 C.F.R. § 240.-10b-5) which states: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or •artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the cir eumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. While there is no language in either Section 10(b) or in Rule 10b-5 explicitly providing for a civil remedy, the federal" }, { "docid": "1204809", "title": "", "text": "any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” This statute was aimed at fraudulent practices by which sellers of securities could defraud or deceive purchasers. The very purpose of the promulgation of Rule 10b-5 under the 1934 Act was to prohibit individuals or companies from buying securities if they engage in fraud in their purchase. The objective of Rule 10b-5 was to make the same prohibitions contained in section 17(a) of the 1933 Act applicable to purchasers as well as to sellers. See, e. g., Birnbaum v. Newport Steel Corp., 193 F.2d 461, 463 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952) ; III L. Loss, Securities Regulation at 1423-30 (2d ed. 1961); A. Bromberg. Securities Law: Fraud at 19-20 (1968). The requirement of being a defrauded purchaser to recover for a violation of section 17(a) has even more recently been upheld. See, e. g., Schoenbaum v. Firstbrook, 268 F.Supp. 385, 396 (S.D.N.Y.1967), aff’d, 405 F.2d 200 (2d Cir.), rev’d on other grounds en banc, 405 F.2d 215 (2d Cir. 1968); Colonial Realty Corp. v. The Curtis Publishing Co., CCH Fed.Sec.L.Rep. ¶ 92, 105 (S.D.N.Y. 1967); cf. Hoover v. Allen, 241 F.Supp. 213, 223 (S.D.N.Y.1965). Rule 10b-5, however, is more expansive than section 17(a) of the 1933 Act. It prohibits fraud or deception by either a purchaser or seller; and its operative language is “in connection with the purchase or sale of any security” as distinguished from the phrase “in the offer or sale of any seeurit[ies]” which appears in section 17(a) of the 1933 Act. Nevertheless, the standing requirement appears to differ only in that defrauded sellers as well as purchasers are included" }, { "docid": "8203349", "title": "", "text": "C., 398 F.2d 276, 279-280 (1 Cir. 1968), fraudulent representations as to securities not yet purchased by the recipient of a stock option are subject to the same federal prohibition as fraudulent representations as to securities whose sale is actually consummated. No compelling reason has been suggested to this Court why one who, in the interest of promoting his company and employing the most talent ed people in a particular field, engages in fraudulent practices in connection with the offer or sale of securities should enjoy any greater freedom from the operation of the federal securities laws than one who perpetrates a fraud without promotional or employment motive. Therefore, the Court declines to hold that the instant context, as a matter of law, requires that the explicit inclusion of stock options in the definitional sections of the 1933 and 1934 Acts be disregarded for the purpose of determining the question of subject matter jurisdiction. Nor is the Court persuaded that it lacks jurisdiction over the subject matter of this complaint because the stock option agreement qua security was not the object of any “sale” by defendants to plaintiff, as that term is defined in Section 2(3) of the Securities Act of 1933, 15 U.S.C. § 77b(3), and in Section 3(a) (14) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a) (14). The former section defines the term “sale” as including “every contract of sale or disposition of a security or interest in a security, for value.” The latter section states that the term “sale” includes “any contract to sell or otherwise dispose of.” Indicative of the broad reach of such a concept of “sale” is the treatment of defendants’ motion to dismiss the complaint for lack of jurisdiction over the subject matter, and for failure to state a claim upon which relief can be granted, in Voege v. American Sumatra Tobacco Corp., 241 F.Supp. 369 (D.Del.1965). In Voege, a minority shareholder brought a derivative action in which she alleged various violations of Section 10 (b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically," }, { "docid": "1204808", "title": "", "text": "not restricted to the particular legal theory of recovery or jurisdictional basis alleged in the complaint. If the facts are alleged with reasonable clarity so as to give adequate notice of the transaction, and if plaintiff is entitled to recover under any legal theory, the complaint is sufficient. 1A Barron & Holtzoff, Federal Practice and Procedure § 276.1 (Wright ed. 1960); 2A J. Moore, Federal Practice j[ 8.14 (2d ed. 1968). Moreover, because the operative language of section 10(b) and Rule 10b-5 is so similar to that of section 17(a) of the 1933 Act, the Court will consider the applicability of these provisions. See Hoover v. Allen, 241 F.Supp. 213, 226 n. 7 (S.D.N.Y.1965). Only a defrauded purchaser may recover under section 17(a) of the 1933 Act. The statute provides: “It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly — ■ (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” This statute was aimed at fraudulent practices by which sellers of securities could defraud or deceive purchasers. The very purpose of the promulgation of Rule 10b-5 under the 1934 Act was to prohibit individuals or companies from buying securities if they engage in fraud in their purchase. The objective of Rule 10b-5 was to make the same prohibitions contained in section 17(a) of the 1933 Act applicable to purchasers as well as to sellers. See, e. g., Birnbaum v. Newport Steel Corp., 193 F.2d 461, 463 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96" }, { "docid": "17043201", "title": "", "text": "“a common plan and concert of action” to sell the bonds to purchasers by utilization of the false representations. Plaintiff bases his claim upon Section 17(a) of the Securities Act of 1933, 15 U.S.C.A. § 77q(a) and Rule X-10B-5 of the Securities and Exchange Commission promulgated pursuant to Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b). Rule X-10B-5 provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, (1) to employ any device, scheme, or artifice to defraud, (2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” The language of Section 17(a) is substantially similar except that it is limited to fraud in the sale of securities whereas Section 10(b) and Rule X-10B-5 apply to fraud in the purchase as well as the sale of securities. Standing alone, the plain language of this Rule and of Section 17(a) clearly covers the alleged conduct of the defendants. The moving defendants, however, contend that this provision is inapplicable because: (1) as applied to them, it is inconsistent with Section 12(2) of the 1933 Act, 15 U.S.C.A. § 77i(2), which admittedly exempts any person who sold these municipal bonds from the civil liability provided in that section for material misrepresentations included in a prospectus or oral communication; (2) it is not alleged that they participated in the actual sale of the bonds to the plaintiff. Although Section 17(a) of the 1933 Act and Section 10(b) of the 1934 Act do not expressly provide for private civil remedies, the courts have consistently implied such remedies from the prohibitions of" }, { "docid": "16486528", "title": "", "text": "the Units actually sold to their customers, and not for their customers’ unfilled subscriptions. Thus, Union Equity received $186,704 in commissions and 45,798 Sales Agent Warrants, instead of the $341,624 and 84,973 Sales Agent Warrants it would have received if all of their customers’ subscriptions had been fulfilled. Plaintiffs filed a class action complaint in the United States District Court for the District of Nevada. The complaint alleged violations of §§ 11 and 15 of the Securities Act of 1933, §§ 10(b) and 20A of the Securities Exchange Act of 1934, and Rule 10b-5. It also asserted various state law fraud and breach of contract claims. Defendants filed three separate motions to dismiss. After a telephonic hearing on March 30, 1995, the district court dismissed the federal securities claim with prejudice pursuant to Fed. R.Civ.P. 12(b)(6). The district court did not issue a written order explaining its reasons for granting the motion, but simply stated that it did not believe that § 10(b) covered such situations. ‘ The district court dismissed the state-law claims without prejudice. Plaintiffs now appeal the district court’s Rule 12(b)(6) dismissal of their § 10(b) and Rule 10b-5 claims. ANALYSIS We review de novo a district court’s dismissal of a plaintiff’s claims pursuant to Fed. R.Civ.P. 12(b)(6). See In re VeriFone Securities Litigation, 11 F.3d 865, 868 (9th Cir.1993). I. STANDING A. The Investor Class Section 10(b) and Rule 10b-5 prohibit deceptive practices “in connection with the purchase or sale of any security.” In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court interpreted this restriction to limit relief under Rule 10b-5 to plaintiffs who had either purchased or sold securities. The plaintiffs in Blue Chip alleged that the offer- or had made misleadingly pessimistic statements in connection with its offering, causing the plaintiffs to forego purchasing shares at bargain prices. The Court noted that the limitation of § 10(b) to deception “in connection with the purchase or sale of any security” was significantly narrower than § 17(a) of the 1933 Securities Act, which reaches" }, { "docid": "22189729", "title": "", "text": "868 (9th Cir.1993) (citations omitted). “Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Gompper, 298 F.3d at 898 (citation and internal quotations omitted). II. Federal Securities Law Plaintiffs’ TAC asserts five claims for relief, alleging (1) violation of section 10(b) and Rule 10b-5 of the 1934 Exchange Act against all defendants; (2) violation of section 20(a) of the 1934 Exchange Act against certain defendants; (3) violation of section 11 of the 1933 Securities Act against certain defendants; (4) violation of section 12(a)(2) of the 1933 Securities Act against certain defendants; and (5) violation of section 15 of the 1933 Securities Act against certain defendants. a. Section 10(b) of the Exchange Act of 193k Section 10(b) of the Exchange Act of 1934, 15 U.S.C. § 78j(b), makes it unlawful “for any person ... [t]o use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe]!]” SEC Rule 10b-5, promulgated under the authority of section 10(b), in turn, provides: It shall be unlawful for any person ... (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.l0b-5. The basic elements of a Rule 10b-5 claim, therefore, are: (1) a material misrepresentation or omission of fact, (2) scienter, (3) a connection with the purchase or sale of a security, (4) transaction and loss causation, and (5) economic loss. See Dura Pharms., Inc. v. Broudo, 544 U.S. -, 125 S.Ct. 1627, 1631, 161 L.Ed.2d 577 (2005). It is" }, { "docid": "10636088", "title": "", "text": "Morgan Stanley, No. 03 Civ. 8208, 2006 WL 1008138, *6, 2006 U.S. Dist. LEXIS 20758, at *25 (S.D.N.Y. Apr. 14, 2006) (citing 15 U.S.C. § 77k). “The test for whether a statement is materially misleading under ... Section 11 is ‘whether the defendants’ representations, taken together and in context, would have misled a reasonable investor.’ ” Rombach v. Chang, 355 F.3d 164, 172 n. 7 (2d Cir.2004) (citation omitted). Section 12(a)(2) of the 1933 Act provides that any person who “offers or sells a security ... by means of a prospectus or oral communication, which includes an untrue statement of a material fact ... shall be hable ... to the person purchasing such security from him.” 15 U.S.C. 77i(a). Section 15 of the 1933 Act imposes control person liability. Typically, “[n]either Section 11 nor Section 12(a)(2) requires that [P]laintiffs allege the scienter or reliance elements of a fraud cause of action.” Rombach v. Chang, 355 F.3d at 169 n. 4 (citation omitted). The Second Circuit, however, has held that “the heightened pleading standard of Rule 9(b) applies to [§ ] 11 and [§ ] 12(a)(2) claims insofar as the claims are premised on allegations of fraud.” Id. at 171. 2. Securities and Exchange Act of 1934 Counts Five, Six, Seven, and Eight assert claims under the 1934 Exchange Act and, more specifically, under § 10(b), 15 U.S.C. § 78j(b) and Rules 10b-5(a) and (c) and 10b-10. 17 C.F.R. §§ 240.10b-5(a), 240.10b-5(c), 240.10-10. “In order to state a claim for securities fraud under § 10(b) of the Exchange Act and Rule 10b-5 promulgated by the SEC thereunder ..., a plaintiff must establish that ‘the defendant, [1] in connection with the purchase or sale of securities, [2] made a materially false statement or omitted a material fact, [3] with scienter, and [4] that the plaintiffs reliance on the defendant’s action [5] caused injury to the plaintiff.” Lawrence v. Cohn, 325 F.3d 141, 147 (2d Cir.2003) (citations omitted). To state a claim for relief under Rule 10b-5, a plaintiff must allege that: in connection with the purchase or sale of securities, the defendant," }, { "docid": "22647941", "title": "", "text": "Since the manipulative devices outlawed by § 9 all involve fraudulent activities integrally related to securities transactions, the conclusion necessarily follows that the “other cunning devices” sought to be prohibited by § 10(b) and Rule 10b-5 are those which also involve securities transactions as an integral part of the fraud. The statute as enacted requires that the fraudulent scheme be “in connection with the purchase or sale of any security.” The expression “in connection” is used elsewhere in the Act, including § 9(b), as a shorthand method of indicating that the activity sought to be made illegal is that having a direct relation to securities transactions. The majority read the phrase as merely requiring that the allegedly misleading statement be issued by a publicly traded corporation. They argue that the “connection” that has to exist between a corporate statement and a security transaction is supplied by the theoretical argument that every “material” corporate statement presumably affects the market price of the issuer’s securities. In my opinion such a broad interpretation of the statute is unwarranted as a matter of statutory construction and unwise as a matter of policy. Congress has made it clear in the other antifraud provisions of general application that its concern was not with allegedly misleading corporate publicity but rather with purposeful schemes to deceive and defraud the public by means of manipulative and deceptive devices which directly involve purchases or sales of securities. Thus § 12(a), 15 U.S.C. § 771 of the 1933 Act provides that any person who “offers or sells a security” by means of a prospectus or oral communication which includes a misstatement or omission of a material fact shall be civilly liable. Similarly § 17(a) of the 1933 Act, 15 U.S.C. § 77q(a), provides that it “shall be unlawful for any person in the offer or sale of any securities” to engage in fraudulent activity. A further insight into the proper scope of 10b-5 can be gained by examining § 17 (a), 15 U.S.C. § 77q(a) which is almost word for word the same except for the explicit requirement that any alleged" }, { "docid": "8203343", "title": "", "text": "that the complaint be dismissed on the ground that the Court lacks jurisdiction of the subject matter because, on its face, the complaint states no violation of Section 17 of the Securities Act of 1933, Section 10 (b) of the Securities Exchange Act of 1934, or Rule 10b-5. Jurisdiction, therefore, would not be conferred upon this Court by Section 22 of the 1933 Act or by Section 27 of the 1934 Act. The operative provisions of Section 17 of the 1933 Act and of Rule 10b-5, which implements Section 10(b) of the 1934 Act, are, for purposes of determining the sufficiency of the complaint, substantially identical. The facts that must be alleged to state a valid claim under Rule 10b-5 are set forth in the Rule itself : “§ 240.10b-5 Employment of manipulative and deceptive devices. It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interestate [sic] commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (e) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 C.F.R. § 240.10b-5 (rev. Jan. 1, 1971). Defendants concede that the complaint successfully alleges use of the jurisdictional means, and that plaintiff charges the defendant Rukin with certain material misrepresentations. Defendants rather contend that the complaint must be dismissed for failing to allege that such material misrepresentations were made “in connection with the purchase or sale of any security.” First, defendants argue that the stock option agreement is not subsumed by the statutory definition of the term “security” set forth in Section 3(a) (10) of the Securities Exchange Act of 1934, 15 U.S.C. §" } ]

[ { "docid": "20647529", "title": "", "text": "Often one jurisdiction would try, convict and incarcerate the person, and the other jurisdiction would merely lodge a detainer against the person and wait to try him until his release by the first jurisdiction. This would sometimes result in a trial many years after the crime. The Act was designed to meet these problems. It is a compact which is binding on the United States and such States as have adopted it. Article I of the Act speaks directly to the scope and purposes of the Act thus: “ . . . it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.”. Article 11(a) of the Act makes it clear that the term “State” as used in the Act means inter alia the United States. Under Article III (a) of the Act, subject only to certain exceptions not important here, the prisoner must be tried within one hundred eighty (180) days after the prisoner “ . . . shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . .” Article V(a) of the Act provides that the prisoner will be made available to the State where charges are outstanding, and Article V(c) specifically provides that “If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period" } ]

[ { "docid": "23675259", "title": "", "text": "was clearly erroneous. AFFIRMED. . The IADA has been adopted by forty-eight states, the Congress, the District of Columbia, Puerto Rico, and the United States Virgin Islands. Birdwell v. Skeen, 983 F.2d 1332, 1335 (5th Cir.1993). The IADA is designed to encourage the expeditious and orderly disposition of charges filed in one jurisdiction against persons already incarcerated in another jurisdiction. 18 U.S.C. App. II, art. I. Before the IADA was enacted, there was no legal mechanism for prisoners to clear detainers filed against them by authorities outside the jurisdiction in which they were imprisoned. Birdwell, 983 F.2d at 1335. . We partially adopted Cephas and Odom in United States v. Johnson, 953 F.2d 1167, 1171-72 (9th Cir.), cert. denied, 506 U.S. 879, 113 S.Ct. 226, 121 L.Ed.2d 163 (1992). In Johnson, we held that \"[w]here delay is excludable under the Speedy Trial Act because it is attributable to a defendant’s own motions, the running of the Interstate Detainers Act's speedy trial clock is also tolled.” Id. at 1172. However, Johnson did not go so far as to state that any delay excusable under 18 U.S.C. § 3161(h)(l)-(9) also tolls the clock under the IADA. . Collins argues that the clock should have been restarted on July 5th when he arrived at the Deuel Vocational Institution. After inspecting the record, we reject this argument because the Deuel Vocational Institution only served as a transfer station for Collins’ transport back to lone. Moreover, until Collins was returned to lone, he remained under the jurisdiction of the California court which had tried him. Cal.Penal Code § 2620. . Under our decision in Johnson, 953 F.2d at 1172, if a defendant's motion tolls the Speedy Trial Act, it also tolls the IADA. . Collins also argues that there was insufficient evidence to find that he was involved in the burglary. After reviewing the evidence, we find this argument to be without merit." }, { "docid": "1331408", "title": "", "text": "120 days. The IADA further provides in Article IV(e) that if the prisoner is returned to the sending state before trial, the charges against him must be dismissed. Diggs contends that these speedy trial and anti-shuttling provisions were violated in his prosecution. Diggs relies largely on United States v. Mauro, 436 U.S. 340, 349, 98 S.Ct. 1834, 1841-42, 56 L.Ed.2d 329 (1978), in which the Supreme Court held that a writ of habeas corpus ad prosequendum issued by a federal district court is not a “detainer” for purposes of the IADA although, when preceded by a proper detainer, the writ can serve as a “written request for temporary custody” which, if honored, will trigger the speedy trial and anti-shuttling provisions of the IADA. Building his argument on Mauro, Diggs contends that the Dauphin County capiases were detainers under the IADA so that his transfer to that county pursuant to the writ of habeas corpus ad prosequen-dum triggered the IADA. Thus, in his view, his return to federal custody after his arrival in Dauphin County required the dismissal of the kidnapping and murder indictments. See Casper v. Ryan, 822 F.2d 1283, 1289 n. 9 (3rd Cir.1987). He further contends that he is entitled to relief because his trial did not commence within 120 days of his transfer to Dauphin County. Diggs’ argument, however, faces one major obstacle; namely that in United States v. Williams, 615 F.2d 585, 592-93 (3rd Cir.1980), we ruled Mauro is not retroactive. See also Brown v. Mitchell, 598 F.2d 835, 837-39 (4th Cir.1979), cert. denied, 449 U.S. 1123, 101 S.Ct. 939, 67 L.Ed. 2d 109 (1981). Diggs seeks to circumvent Williams by urging that we abandon that decision on the basis of Griffith v. Kentucky, — U.S. —, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In Griffith the Supreme Court announced that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”" }, { "docid": "8094696", "title": "", "text": "court erred in refusing to dismiss the indictment as violative of the IADA. The IADA is a congressionally sanctioned interstate compact codified at 18 U.S.C.App. § 1 et seq. Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985). The purpose of the IADA is to create a productive rehabilitative environment for prison ers serving sentences in one state by facilitating the disposition of charges pending in another state or by the United States. United States v. Currier, 836 F.2d 11 (1st Cir.1987). The IADA mandates that prison authorities notify prisoners of detainers placed against them and their right to demand a speedy trial. Once the prisoner makes such a request, the state issuing the detainer must begin the trial within 180 days. 18 U.S.C.App. § 2. The relevant provision provides that “[w]henever during the continuance of the term of imprisonment there is pending in any other party any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days....” United States v. Bottoms, 755 F.2d 1349 (9th Cir.1985) is directly on point. In Bottoms, the defendant was arrested on state charges but ordered detained by federal authorities on the basis of an outstanding arrest warrant. A panel of this court ruled that although the defendant “was subject to detainers, they are not detainers as that word is defined in the Act.” Id. at 1350. The court made clear that a detainer must be supported by an indictment, information, or complaint as those terms are technically defined. See Fed.R.Crim.P. 3 (“The complaint is a written statement of the essential facts constituting the offense charges. It shall be made upon oath before a magistrate.”). In Hall’s case, as with Bottoms, no event occurred which would trigger the institution of the IADA provisions. Hall attempts to blunt the effect of Bottoms by urging this court to adopt a “rule of lenity” and interpret the IADA to cover this situation. But as Judge Chambers noted, if the statutory categories are to" }, { "docid": "13008641", "title": "", "text": "the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . Article 111(a) of the IADA provides, in pertinent part, as follows: Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint: Provided, That, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. 18 U.S.C.App. § 2, art. 111(a) (1982). . At the outset we note that the parties to this action have assumed that the fugitive warrants issued against Kerr while he was incarcerated in Chowan County, North Carolina, served as a detainer within the meaning of the IADA. Although the IADA does not define the word \"detainer,” the legislative history of the IADA states that \"[a] detainer is a notification filed with the institution in which a prisoner is serving a sentence advising that he is wanted to face pending criminal charges in another jurisdiction.” H.R. Rep. No. 91-1018, S.Rep. No. 91-1356, 91st Cong., 2d Sess. 3, reprinted in 1970 U.S.Code Cong. & Ad.News 4864, 4865 (emphasis added). The record in this case is not clear with respect to whom the fugitive warrants were delivered and how Kerr received notice of the warrants. A review of the warrants shows that they were issued in Chowan County, North Carolina, by the Clerk of Superior Court of that County on the basis of arrest warrants received from Spotsylvania County, Virginia. The fugitive warrants were addressed" }, { "docid": "1331407", "title": "", "text": "before the Pennsylvania Supreme Court. Even though this second appellate counsel failed to argue the ineffectiveness issue, Diggs’ petition was granted and a third appellate counsel was appointed to argue his appeal. On June 17, 1982, however, the Pennsylvania Supreme Court dismissed the appeal as improvidently granted. 498 Pa. 360, 446 A.2d 600 (1982). This habeas corpus action followed. II. Interstate Agreement on Detainers Act (IADA) The IADA, to which Pennsylvania and the United States are parties, establishes procedures by which a member state, including the United States, may procure a prisoner from another member jurisdiction for trial. The IADA may be triggered when the state in which the trial is to be had, the receiving state, lodges a “detain-er” with the state in which a prisoner is incarcerated, the sending state. The prisoner is transferred when the receiving state presents a “written request for temporary custody” to the appropriate authorities in the sending state. Once the prison er arrives in the receiving state, Article IV(c) of the IADA requires that his trial start within 120 days. The IADA further provides in Article IV(e) that if the prisoner is returned to the sending state before trial, the charges against him must be dismissed. Diggs contends that these speedy trial and anti-shuttling provisions were violated in his prosecution. Diggs relies largely on United States v. Mauro, 436 U.S. 340, 349, 98 S.Ct. 1834, 1841-42, 56 L.Ed.2d 329 (1978), in which the Supreme Court held that a writ of habeas corpus ad prosequendum issued by a federal district court is not a “detainer” for purposes of the IADA although, when preceded by a proper detainer, the writ can serve as a “written request for temporary custody” which, if honored, will trigger the speedy trial and anti-shuttling provisions of the IADA. Building his argument on Mauro, Diggs contends that the Dauphin County capiases were detainers under the IADA so that his transfer to that county pursuant to the writ of habeas corpus ad prosequen-dum triggered the IADA. Thus, in his view, his return to federal custody after his arrival in Dauphin County required" }, { "docid": "23697228", "title": "", "text": "held on charges of committing the state law crimes of aggravated robbery and aggravated assault. Rule 32.1 exists to protect the probationer from undue federal incarceration and to protect the probationer’s ability to defend the violation allegations. Sackinger, 537 F.Supp. at 1248. Because of Pardue’s pending state charges, no undue federal incarceration occurred. We agree with the Second Circuit that the requirements of Rule 32.1(a)(1) do not apply in this situation. We further note Pardue appeared with counsel before the district court of the magistrate judge three separate times, and Pardue never requested a Rule 32.1 hearing during any of these appearances. Accordingly, Pardue also waived his rights to a Rule 32.1 hearing. See Fed.R.Crim.P. 32.1(b)(1)(A); United States v. Abdul-Hamid, 966 F.2d 1228, 1231 (7th Cir.1992). We find the district court did not err by not providing Pardue a Rule 32.1 hearing. B. Interstate Agreement on Detain-ers Act Pardue concedes, correctly, the IADA may not apply to his situation as a pretrial detainee. We review de novo a denial of a motion to dismiss an indictment based on an interpretation of the IADA. United States v. Lualemaga, 280 F.3d 1260, 1263 (9th Cir.2002). The Supreme Court has decided “a detainer based on a probation-violation charge is not a detainer based on ‘any untried indictment, information or complaint,’ within the meaning of Art. III” of the IADA. Carchman v. Nash, 473 U.S. 716, 726, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985); see 18 U.S.C. app. § 2, art. III. Similarly, our court has ruled the objectives of the IADA “have no application to a pretrial detainee who is merely awaiting trial and is not then subject to a term of Imprisonment. He has no immediate interest in any institutional treatment or program of rehabilitation.” United States v. Harris, 566 F.2d 610, 613 (8th Cir.1977); see also United States v. Taylor, 173 F.3d 538, 541 (6th Cir.1999) (quoting United States v. Roberts, 548 F.2d 665, 669-70 (6th Cir.1977) (“[Pjretrial detainee awaiting his trial has not begun his ‘term of imprisonment’ ” pursuant to the IADA)). Pardue was a pretrial detainee held on" }, { "docid": "3145364", "title": "", "text": "detainer arrived antecedent to the writ and that Hill had failed to carry his burden of establishing the sequence of arrivals. On March 26,1979, Hill filed a pro se motion to reconsider in the district court, wherein he asserted breach of his speedy trial right for the first time, and a petition for a writ of mandamus in this court to compel the district court to dismiss the indictment. We denied the petition on May 10, 1979 and a subsequent motion to reconsider that denial on May 24, 1979. Trial commenced July 23, 1979, and this appeal followed conviction. II. Congress enacted the IADA in 1970 to combat abuses of the use of detainers. The provisions were operative during all pertinent times for purposes of this appeal. Article IV(c) of the IADA generally requires that a prisoner must be brought to trial within 120 days of his arrival in the “receiving State” in respect to any proceeding made possible by Article IV of the IADA. The term “State” is defined to include the United States by Article 11(a). Failure to adhere to the applicable time limitation requires dismissal of the indictment with prejudice under Article V(c). In United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the Court decided two appeals, the Mauro and Ford cases, from the Second Circuit. In the Mauro case, a unanimous Court held that the provisions of the IADA are not implicated when the presence of a prisoner, held by a jurisdiction which is also a party to the Interstate Agreement on Detainers, is obtained solely by multiple use of the writ. The writ is simply not a detainer within the meaning of the IADA. In the Ford case, a majority of the Court concluded that when a detainer is lodged with prison authorities in the sending state before the writ is re- ceived, the IADA is activated. In such circumstances, the writ operates as a “written request for temporary custody” within the meaning of Article IV, necessitating the commencement of trial within the 120-day constraint. However, neither the Court’s" }, { "docid": "23675258", "title": "", "text": "Batson v. Kentucky? During voir dire, the government exercised its first two preemptory challenges against Hispanic males, Mr. Castaneda and Mr. Padilla. Defense counsel objected and made a Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). The prosecutor immediately offered a race-neutral explanation for the challenges: I struck Mr. Padilla because he seems to be a loner type from Concord, expressionless, in essence. Mr. Castaneda was different. He answered too quickly. I just didn’t get a good reaction from him. The district court judge found that the prosecutor’s explanations for the challenges were satisfactory and also noted that he thought Mr. Castaneda behaved strangely. The trial court’s factual findings regarding purposeful discrimination in jury selection are entitled to “great deference” and will not be set aside unless clearly erroneous. United States v. Vasquez-Lopez, 22 F.3d 900, 901 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994). Here, there is no indication that the district court’s finding of no purposeful discrimination was clearly erroneous. AFFIRMED. . The IADA has been adopted by forty-eight states, the Congress, the District of Columbia, Puerto Rico, and the United States Virgin Islands. Birdwell v. Skeen, 983 F.2d 1332, 1335 (5th Cir.1993). The IADA is designed to encourage the expeditious and orderly disposition of charges filed in one jurisdiction against persons already incarcerated in another jurisdiction. 18 U.S.C. App. II, art. I. Before the IADA was enacted, there was no legal mechanism for prisoners to clear detainers filed against them by authorities outside the jurisdiction in which they were imprisoned. Birdwell, 983 F.2d at 1335. . We partially adopted Cephas and Odom in United States v. Johnson, 953 F.2d 1167, 1171-72 (9th Cir.), cert. denied, 506 U.S. 879, 113 S.Ct. 226, 121 L.Ed.2d 163 (1992). In Johnson, we held that \"[w]here delay is excludable under the Speedy Trial Act because it is attributable to a defendant’s own motions, the running of the Interstate Detainers Act's speedy trial clock is also tolled.” Id. at 1172. However, Johnson did not go so far" }, { "docid": "2805686", "title": "", "text": "Act (“IADA\"), 18 U.S.C.App. III. The IADA “prescribes procedures by which a member State may obtain for trial a prisoner incarcerated in another member jurisdiction and by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction.” United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 1838, 56 L.Ed.2d 329 (1978). The procedures are triggered only when a “detainer” is filed with the custodial (sending) State by another (receiving) State having untried charges pending against the prisoner. Id. Stephen Rossetti’s claims are founded upon Article III of the IADA. Article III provides that a prisoner against whom a detainer has been filed may demand speedy disposition of the charges pending against him in the jurisdiction that filed the detain-er by submitting a written notice and request for final disposition to the warden of the custodial facility. Once such a notice and request has been filed, various rights accrue to the prisoner under Article III. In particular, Article 111(d) provides that once the receiving state accepts temporary custody of the prisoner, he must be tried before he can be returned to the custody of the original jurisdiction. Article 111(d) also states the penalty for premature return of the prisoner: If trial is not had on any indictment, information, or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. A prisoner who understands his rights under these “anti-shuttling” provisions of Article III can, however, voluntarily waive those rights. See United States v. Black, 609 F.2d 1330, 1334 (9th Cir.), cert. denied, 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980); United States v. Eaddy, 595 F.2d 341, 344 (6th Cir.1979); United States v. Ford, 550 F.2d 732, 735, 742 (2nd Cir.), aff'd, 436 U.S. 340 (1978); United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir.), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978). Stephen" }, { "docid": "2805685", "title": "", "text": "relevant only to impeach the credibility of Delverde, not to challenge the government’s contention that these defendants committed this robbery. See note 4, supra. The jury had ample opportunity to draw its own conclusions as to Delverde’s and McLaughlin’s credibility and any possibility of collusion after the contacts between the two were revealed to the jury and explored by counsel on direct and cross-examination. Finally, as already noted, it does not appear that McLaughlin was motivated by any but proper motives in talking to Delverde. In sum, we believe the district court acted well within its discretion in allowing Delverde’s testimony to stand. IV. We find no merit in appellants’ argument that there was insufficient evidence to support the guilty verdicts. We have carefully reviewed the record and are satisfied that there was ample evidence for a jury to find both defendants guilty beyond a reasonable doubt. Accordingly, we affirm the district court’s denial of their motions for judgment of acquittal. V. Stephen Rossetti raised a final argument based on the Interstate Agreement on Detainers Act (“IADA\"), 18 U.S.C.App. III. The IADA “prescribes procedures by which a member State may obtain for trial a prisoner incarcerated in another member jurisdiction and by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction.” United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 1838, 56 L.Ed.2d 329 (1978). The procedures are triggered only when a “detainer” is filed with the custodial (sending) State by another (receiving) State having untried charges pending against the prisoner. Id. Stephen Rossetti’s claims are founded upon Article III of the IADA. Article III provides that a prisoner against whom a detainer has been filed may demand speedy disposition of the charges pending against him in the jurisdiction that filed the detain-er by submitting a written notice and request for final disposition to the warden of the custodial facility. Once such a notice and request has been filed, various rights accrue to the prisoner under Article III. In particular, Article 111(d) provides that once the receiving state accepts temporary" }, { "docid": "15966622", "title": "", "text": "PER CURIAM. Gale Rene Hobson appeals from the District Court’s denial of his motion to vacate sentence under 28 U.S.C. § 2255. Hobson seeks to vacate a 12-year sentence imposed by the District Court on December 19, 1977, following Hobson’s plea of guilty to two counts of bank robbery and conspiracy to rob the Austinville Office of the State Savings Bank in Aplington, Iowa. On appeál Hobson raises five issues: (1) that his indictment should be dismissed because of violations of the antishuttling provisions contained in Articles 111(d) and IV(e) of the Interstate Agreement on Detainers Act (IADA); (2) that the District Court violated Fed.R.Crim.P. 11(c) by at times addressing the defendants collectively at the change of plea and sentencing hearing and that as a result Hobson did not make a knowing and intelligent waiver of his rights to confront his accusers and against self-incrimination; (3) that the District Court should not have accepted his plea because he did not admit participation in all the overt acts in furtherance of the conspiracy; (4) that he was denied effective assistance of counsel because his attorney permitted him to plead guilty to conspiracy without investigating whether he committed all the overt acts alleged in the indictment; and (5) that he was prejudiced by the inclusion of untrue overt acts in his presentence report. We affirm the District Court’s dismissal of each of these grounds for § 2255 relief. First Hobson argues that under the IADA, the federal proceedings against him should have been commenced and completed when the federal authorities first acquired custody of him from the state prison where he was incarcerated. Hobson claims that he was transferred from state to federal authority three times before the federal proceedings were finally concluded. The District Court correctly decided that Hob-son is barred from raising this claim because his guilty plea constituted a waiver of his right to challenge his indictment under the IADA. See United States v. Hach, 615 F.2d 1203, 1204 (8th Cir.), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980); Camp v. United States, 587 F.2d" }, { "docid": "1331412", "title": "", "text": "a dismissal of the Dauphin County charges. We reject Diggs’ Groomes contentions. In Groomes we vacated a judgment dismissing a habeas corpus petition and remanded the matter for further proceedings upon finding that the petitioner had stated a claim under Article IV(e) of the IADA. In reaching that result, we rejected a narrow reading of a “detainer” as a “hold order” and suggested that a writ of habeas corpus ad prosequendum, when used to secure a defendant on bail in another jurisdiction, might constitute a detainer under the IADA. 520 F.2d at 838. However, we did not expressly recognize a writ of habe-as corpus ad prosequendum as a detainer under the IADA until our decision in United States v. Sorrell, 562 F.2d 227 (3rd Cir.1977) (in banc), cert. denied, 436 U.S. 949, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978), which we filed after Diggs’ conviction. We indicated that Sorrell would not be applied retroactively, 562 F.2d at 231 n. 6b, and, in fact, it has not been applied retroactively by the courts within this Circuit. See United States v. Boyd, 437 F.Supp. 519 (W.D.Pa.1977), aff'd without opinion, 578 F.2d 1376 (3rd Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1243, 59 L.Ed.2d 471 (1979). Finally, on this point, we note that the authority of Sorrell has been undermined by the holding in Mauro that a writ of habeas corpus ad prosequendum issued by a federal district court is not a detainer under the IADA. In summary we conclude that the writs of habeas corpus ad prosequendum from Dauphin County cannot be characterized as “written requests for temporary custody” through a retroactive application of Mauro nor as “detainers” through a retroactive application of Sorrell. Thus, Diggs’ transfer to state custody for the Dauphin County trials did not trigger the speedy trial and anti-shuttling provisions in Articles IV(c) and IV(e) of the IADA. Consequently, we reject his claims under the IADA. III. Rulings by the Trial Court Diggs contends that the Dauphin County trial court denied him due process of the law, equal protection of the law and the right to compulsory" }, { "docid": "12888570", "title": "", "text": "235 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976). Hopper has shown no prejudice in this case. Any claim that he is entitled to serve concurrent sentences is not yet ripe. Hopper has not contended that, over time, the loss of evidence relevant to show mitigating circumstances for the federal parole revocation hearing would cause him harm. The only other prejudice Hopper mentions, but without any specificity, is the allegedly adverse effect of the federal detainer on rehabilitative programs and parole decisions in the state prison. To the extent that Hopper contends that the state has arbitrarily and capriciously used the federal detainer to deny him rehabilitation and parole in violation of state law or without procedural due process, he should exhaust his state remedies. B. The Interstate Agreement on Detainers Hopper claims that because the USPC failed to give him a timely hearing as required under the IADA, the federal parole revocation charge must be dismissed. The IADA prescribes procedures whereby persons serving a sentence in one party state may be brought to trial in another party state, where there is pending “any untried indictment, information, or corn- plaint on the basis of which a detainer has been lodged against the prisoner.” 18 U.S.C. App. § 2, art. III(a) (Supp.1981). Failure to bring a prisoner to trial on the untried charge within the statutorily prescribed time results in a dismissal of that charge. Id. art. V(c). Because we hold that an unadjudicated parole violator warrant is not a “complaint” within the meaning of article III of the IADA, Hopper’s IADA claim also fails. The Government relies on United States v. Dobson, 585 F.2d 55 (3d Cir.), cert. denied, 439 U.S. 899, 99 S.Ct. 264, 58 L.Ed.2d 247 (1979), and United States v. Reed, 620 F.2d 709 (9th Cir.), cert. denied, 449 U.S. 880,101 S.Ct. 229, 66 L.Ed.2d 104 (1980), for the proposition that the IADA does not apply to an untried parole violator warrant. Those cases, however, address an entirely different issue. In Dobson and Reed the court held that neither a pretrial" }, { "docid": "3145387", "title": "", "text": "v. Scallion, 548 F.2d 1168 (5th Cir. 1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978). The high Court also agreed with the Scallion panel, 548 F.2d at 1174, that the United States is a party to the IADA as both a sending and a receiving “State.” . We are not deaf to the government’s contention that it was not party to any misconduct on the part of state prison authorities and that it has no greater access to evidence of the crucial dates than does the prisoner. But the United States does enjoy easy access to the suspect under the Interstate Agreement because he is confined in another jurisdiction that is party to the Interstate Agreement. Perhaps this fact alone should be sufficient to charge the government with the burden of demonstrating that the detainer did not precede the writ on these unusual facts. Our resolution permits us to escape deciding which party must shoulder the burden of proof. . The propriety of using this inquiry as a starting point in retroactivity analysis was recently reaffirmed in Lee v. Missouri, 439 U.S. 461, 462, 99 S.Ct. 710, 711, 58 L.Ed.2d 736 (1979) (per curiam). . Hill contends that the pertinent termination date for Article IV(c) is July 23, 1979, the day his trial commenced after remand, rather than January 10, 1977, the day he had originally entered a guilty plea. The IADA does not define when a “trial” commences within the meaning of Article IV(c) but we are confident that a plea of guilty within the 120-day limitation is sufficient. Mauro emphasized that the purpose of the IADA was to prevent the lodging of a detainer against an inmate, without any action being taken on it, for extended periods of time which could result in the denial of certain prison benefits and the frustration of rehabilitative efforts. 436 U.S. at 360, 98 S.Ct. at 1847. Acceptance of a guilty plea does take action on the detainer; it disposes of the outstanding charge. Moreover, if Hill is correct in his interpretation, then virtually every prisoner who" }, { "docid": "23697229", "title": "", "text": "indictment based on an interpretation of the IADA. United States v. Lualemaga, 280 F.3d 1260, 1263 (9th Cir.2002). The Supreme Court has decided “a detainer based on a probation-violation charge is not a detainer based on ‘any untried indictment, information or complaint,’ within the meaning of Art. III” of the IADA. Carchman v. Nash, 473 U.S. 716, 726, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985); see 18 U.S.C. app. § 2, art. III. Similarly, our court has ruled the objectives of the IADA “have no application to a pretrial detainee who is merely awaiting trial and is not then subject to a term of Imprisonment. He has no immediate interest in any institutional treatment or program of rehabilitation.” United States v. Harris, 566 F.2d 610, 613 (8th Cir.1977); see also United States v. Taylor, 173 F.3d 538, 541 (6th Cir.1999) (quoting United States v. Roberts, 548 F.2d 665, 669-70 (6th Cir.1977) (“[Pjretrial detainee awaiting his trial has not begun his ‘term of imprisonment’ ” pursuant to the IADA)). Pardue was a pretrial detainee held on state law charges and on federal violations of a supervised release term. He was not subject to a “term of imprisonment,” as the IADA requires, under either state or federal charges. Pardue’s transfers inured to his benefit, because the district court, using a preponderance of evidence standard, could have conducted a trial or revocation hearing on the supervised release violation the first time Pardue was brought before the court. The district court instead decided to allow the state charges against Pardue to be resolved first. This decision allowed Pardue, if he so chose, .to make the State of Arkansas prove its case to a jury by proof beyond a reasonable doubt. .We conclude the IADA does not apply to Pardue, and offers him no relief. We affirm the district court’s denial- of Pardue’s motion to dismiss the Petition under the IADA. C. Federal Sentence and Credit for Time Served We review legal questions regarding the interpretation and application of the supervised release statutes de novo. See United States v. Juan-Manuel, 222 F.3d 480, 485-86 (8th" }, { "docid": "23621938", "title": "", "text": "respond and without requiring an evidentiary hearing. Williams timely appealed and this court appointed appellate counsel to represent him. II. At the outset, we note that we are not asked on this appeal to review the merits of Williams’ motion for collateral relief under 28 U.S.C. § 2255. The sole issue before us is whether the district court properly denied Williams’ motion to vacate sentence without holding an evidentiary hearing. The motion was based principally on two separate but related theories. Williams claimed first that the sentence should be vacated because the Government violated the Interstate Agreement on Detainers Act (IADA or the Act), thereby requiring that the federal indictment against him be dismissed. Second, Williams claimed that the failure of trial counsel to raise the IADA defense constituted a deprivation of his sixth amendment right to the effective assistance of counsel, thereby requiring that his sentence be vacated. It is apparent that the nature of Williams’ claimed IADA defense is central to both theories he asserted as bases for collateral relief. However, in accordance with well-settled principles, we will first examine the statutory IADA claim and then, if necessary, turn to the constitutional ineffective assistance of counsel claim. See Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Congress enacted the Interstate Agreement on Detainers Act in 1970, Article 11(a), 18 U.S.C. App. at 1395 (1976), to authorize the United States to join with many of the States in eliminating problems associated with the transfer of prisoners currently serving a sentence in one state or territorial jurisdiction to another jurisdiction seeking to prosecute him on different or related charges. When a detainer is lodged against the prisoner while he is serving a sentence in another jurisdiction, the Act sets forth limitations on the transfers that may be made to the demanding jurisdiction. For example, under Article IV of the Act, if the prisoner’s presence is obtained in a jurisdiction lodging a detainer against him, that" }, { "docid": "13008640", "title": "", "text": "generally cognizable under federal habeas corpus provisions absent a showing of prejudice. Specifically, we hold that the violation of the 180-day time provision of Article 111(a) alleged in this case does not constitute a fundamental defect entitling Kerr to relief under § 2254, because Kerr has failed to show any prejudice arising out of the alleged violation. Nor does this case “ ‘present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Davis, 417 U.S. at 346, 94 S.Ct. at 2305. The IADA was designed, in part, to protect prisoners against whom detainers are issued from being denied prison privileges and rehabilitation efforts. See United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). As Kerr has introduced no evidence indicating that he has suffered any prejudice in his incarceration or in defending against the charges against him, we hold that, under Davis, the alleged violation of Article 111(a) of the IADA is not cognizable under 28 U.S.C. § 2254. III. For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . Article 111(a) of the IADA provides, in pertinent part, as follows: Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint: Provided, That, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. 18 U.S.C.App. § 2, art. 111(a) (1982)." }, { "docid": "8094695", "title": "", "text": "officer has a lawful right of access to the object itself. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Vehicles are also covered by the plain view exception. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Accordingly, the federal findings are not clearly erroneous and these facts support a finding of founded suspicion. Either on the basis of founded suspicion or probable cause for arrest, the officers were rightfully on the scene. Therefore, the items Hall sought to suppress were admissible under the plain view exception to the warrant requirement. MOTION TO DISMISS INDICTMENT The denial of a defendant’s motion to dismiss an indictment under the IADA is a question of law reviewed de novo. United States v. McConney, 728 F.2d 1195 (9th Cir.1984). The factual findings underlying the decision are reviewed on a clearly erroneous standard. United States v. Howard, 828 F.2d 552 (9th Cir.1987). Hall maintains that the district court erred in refusing to dismiss the indictment as violative of the IADA. The IADA is a congressionally sanctioned interstate compact codified at 18 U.S.C.App. § 1 et seq. Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985). The purpose of the IADA is to create a productive rehabilitative environment for prison ers serving sentences in one state by facilitating the disposition of charges pending in another state or by the United States. United States v. Currier, 836 F.2d 11 (1st Cir.1987). The IADA mandates that prison authorities notify prisoners of detainers placed against them and their right to demand a speedy trial. Once the prisoner makes such a request, the state issuing the detainer must begin the trial within 180 days. 18 U.S.C.App. § 2. The relevant provision provides that “[w]henever during the continuance of the term of imprisonment there is pending in any other party any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to" }, { "docid": "1331406", "title": "", "text": "his attorney who was also present. The judge upheld the claim of privilege and denied a request by Diggs’ attorney for permission to ask the witness whether he was asserting his privilege in response to official intimidation. Diggs was convicted and received a life sentence for first degree murder and a consecutive ten to 20 year term for kidnapping. His motions for arrest of judgment and a new trial were denied in a reported opinion. Commonwealth v. Diggs, 100 Dauph. 318 (1978). Diggs, represented by a retained attorney, appealed to the Pennsylvania Superior Court. Diggs alleges that he instructed this attorney to raise the alleged ineffectiveness of trial counsel as an issue but the attorney did not do so. While Diggs himself filed a brief dealing with this issue, the Superior Court nevertheless affirmed the convictions and sentences. Commonwealth v. Diggs, 273 Pa.Super. 121, 416 A.2d 1119 (1979). Thereafter, Diggs obtained a new attorney and instructed him to argue the ineffectiveness of both trial counsel and his first appellate counsel in a petition for review before the Pennsylvania Supreme Court. Even though this second appellate counsel failed to argue the ineffectiveness issue, Diggs’ petition was granted and a third appellate counsel was appointed to argue his appeal. On June 17, 1982, however, the Pennsylvania Supreme Court dismissed the appeal as improvidently granted. 498 Pa. 360, 446 A.2d 600 (1982). This habeas corpus action followed. II. Interstate Agreement on Detainers Act (IADA) The IADA, to which Pennsylvania and the United States are parties, establishes procedures by which a member state, including the United States, may procure a prisoner from another member jurisdiction for trial. The IADA may be triggered when the state in which the trial is to be had, the receiving state, lodges a “detain-er” with the state in which a prisoner is incarcerated, the sending state. The prisoner is transferred when the receiving state presents a “written request for temporary custody” to the appropriate authorities in the sending state. Once the prison er arrives in the receiving state, Article IV(c) of the IADA requires that his trial start within" }, { "docid": "12888571", "title": "", "text": "state may be brought to trial in another party state, where there is pending “any untried indictment, information, or corn- plaint on the basis of which a detainer has been lodged against the prisoner.” 18 U.S.C. App. § 2, art. III(a) (Supp.1981). Failure to bring a prisoner to trial on the untried charge within the statutorily prescribed time results in a dismissal of that charge. Id. art. V(c). Because we hold that an unadjudicated parole violator warrant is not a “complaint” within the meaning of article III of the IADA, Hopper’s IADA claim also fails. The Government relies on United States v. Dobson, 585 F.2d 55 (3d Cir.), cert. denied, 439 U.S. 899, 99 S.Ct. 264, 58 L.Ed.2d 247 (1979), and United States v. Reed, 620 F.2d 709 (9th Cir.), cert. denied, 449 U.S. 880,101 S.Ct. 229, 66 L.Ed.2d 104 (1980), for the proposition that the IADA does not apply to an untried parole violator warrant. Those cases, however, address an entirely different issue. In Dobson and Reed the court held that neither a pretrial detainee nor a parole violator should be considered “serving a sentence” in one party state for IADA purposes. Here Hopper is definitely serving a sentence in the California state penitentiary. The issue is whether his unadjudicated parole violator status is a “complaint on the basis of which a detainer has been lodged” requiring a hearing by the federal Parole Commission. The Government’s reliance on Moody is likewise misplaced. In Moody, the court held that a parolee has no constitutional right to a revocation hearing while serving an intervening sentence for the same sovereign. 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). The IADA provisions are applicable where a defendant is held by one sovereign and a charge by a different sovereign is pending. Furthermore, Moody addresses constitutional due process rights; the IADA provides for a separate statutory right. In the legislative history of the IADA, “detainer” is defined as a “notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges" } ]

[ { "docid": "469997", "title": "", "text": "the expertise of the arbitrator and his scope of authority under the arbitration agreement, and the procedural adequacy of the arbitration proceedings.” Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985). In addition to meeting these three criteria, the general prerequisites to the application of collateral estoppel must be met; (1) identity of issues; (2) actual litigation of the issue in the prior litigation proceeding; (3) the determination of the issue in the prior litigation or proceeding must have been a critical and necessary part of the judgment in the earlier proceeding, and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the early proceedings. Greenblatt, 763 F.2d at 1360. For purposes of res judicata, there must be an identity of causes of action, that is, an identity of the facts creating the right of action and the evidence necessary to sustain each action. Westwood Chemical Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981). As outlined above, we conclude that the federal interest in providing a judicial forum for federal securities claims, even though there are arbitrable pendent claims, weighs heavily against giving preclusive effect to the arbitration proceedings and is of paramount concern to this Court. While we do not question the expertise of the arbitration panel and their scope of authority under the arbitration agreement, we express concern over the procedural adequacy of the arbitration proceeding for purposes of giving preclusive effect of those proceedings on the issues before this Court. The arbitration award in this case simply stated that plaintiff is entitled to $40,000 from defendant and gives no indication of the basis for the award. Therefore, it is impossible for this Court to determine whether the issues underlying the federal securities claims were actually litigated and which issues were a critical and necessary part of that award. Moreover, plaintiff outlines several differences between actions for.violations of Section 12(2) of the Securities Act of 1933 and Rule 10b-5 of the Exchange Act of 1934, and the arbitrated state" } ]

[ { "docid": "4302827", "title": "", "text": "in a federal-question case); see also Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (“For judgments in federal-question cases ... federal courts participate in developing ‘uniform federal rule[s]’ of res judicata, which this Court has ultimate authority to determine and declare.” (quoting Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001))); 18B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4466; cf. Bayer Corp., 131 S.Ct. at 2376 n. 6. As the Supreme Court recently summarized: The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as “res judicata.” Under the doctrine of claim preclusion, a final judgment forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U.S. 742, 748 [121 S.Ct. 1808, 149 L.Ed.2d 968] (2001). Issue preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the pri- or judgment,” even if the issue recurs in the context of a different claim. Id. at 748-49 [121 S.Ct. 1808]. By “precluding] parties from contesting matters that they have had a full and fair opportunity to litigate,” these two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and fostefr] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153-54 [99 S.Ct. 970, 59 L.Ed.2d 210] (1979). Taylor, 553 U.S. at 892, 128 S.Ct. 2161. The Appellees do not assert claim preclusion, cf. S.E.C. v. First Jersey Sec., Inc., 101 F.3d 1450, 1465 (2d Cir.1996) (claim preclusion generally does not apply to “a claim that arose after a suit was commenced”), and instead focus their argument on issue preclusion, see Appellees’ Br. 34-36 (arguing that state court suit raises the “same issue” as previously decided). The Supreme Court has listed the various requirements of issue preclusion" }, { "docid": "8422335", "title": "", "text": "after giving Thalbo credit for the amounts earned by DiMilta at Stewart and the amounts awarded in the Title VII lawsuit, was $40,410.24. This petition for enforcement followed. II. DISCUSSION In opposition to the petition for enforcement, Thalbo principally pursues its contention that because of collateral estoppel, DiMilta is entitled to no backpay. It also contends that no such award is justified by the credible evidence before the ALJ, and it pursues its alternative contentions that the backpay period should have been shorter. For the reasons that follow, we reject all of Thalbo’s contentions. A. Issue Preclusion Urging application of collateral estoppel, Thalbo contends that the Board could not properly award any backpay to DiMilta for the period following the termination of her employment at Stewart because the district court in DiMilta v. G.B. Motel found that when her employment at Stewart ended, DiMilta retired. The Board, in opposition, contends that “if the Board was not a party to prior private litigation, it is not barred from litigating an issue involving enforcement of federal law which the private party has litigated successfully.” (NLRB appellate brief at 25.) Without adopting so broad a rule, we conclude that there was no estoppel in this case. Under general principles of collateral estoppel, or issue preclusion, a judgment in a prior proceeding bars a party and its privies from relitigating an issue if, but “only if:” (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. Local 32B-32J Service Employees International Union v. NLRB, 982 F.2d 845, 849 (2d Cir.) (internal quotation marks omitted), cert. denied, 509 U.S. 904, 113 S.Ct. 2995, 125 L.Ed.2d 689 (1993); see generally 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4416, at 137-38 (1981) (“Wright, Miller & Cooper”). If the issues were not identical, there is no collateral estoppel. Compare Local" }, { "docid": "11160032", "title": "", "text": "was injured in his business or property by reason of the defendant’s violation of § 1962.”). But, as explained below, the damages Ms. Knight alleges from Phase 2 conduct — increased litigation costs and lost claims — were matters resolved by Mooring I. Further litigation of these issues is therefore precluded, and the Phase 2 RICO claims cannot proceed unless and until Ms. Knight obtains relief from the judgment in Mooring I. See Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1272-73 (10th Cir.1995) (plaintiffs could not pursue fraud claims based on litigation misconduct without first obtaining relief from prior judgment because their claims of damages from fraud were incompatible with facts necessarily decided in the prior action). Because Mooring I is a federal judgment in a diversity action applying Oklahoma law, Oklahoma’s preclusion law applies. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). In this case the appropriate preclusion doctrine is issue preclusion. We recognize that the district court relied on claim preclusion rather than issue preclusion, but we may affirm on any ground supported by the record. See Bixler v. Foster, 596 F.3d 751, 760 (10th Cir.2010). And the defendants raised both claim preclusion and issue preclusion in the district court, so Ms. Knight had an opportunity to address both doctrines. See id. “Issue preclusion prevents reliti-gation of facts and issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies.” Durham v. McDonald’s Rests. Of Okla., Inc., 256 P.3d 64, 66 (Okla.2011) (emphasis omitted). To establish issue preclusion, a party must prove: 1) that the party against whom it is being asserted was either a party to or a privy of a party to the prior action; 2) that the issue subject to preclusion has actually been adjudicated in the prior case; 3) that the adjudicated issue was necessary and essential to the outcome of that prior case; and 4) the party against whom it is interposed had a full and fair opportunity to litigate the claim or critical issue. Id." }, { "docid": "14921573", "title": "", "text": "but did not rely on Florida’s preclusion rules. Rather, the panel began with the proposition that, “even in a case which rests its subject matter jurisdiction solely upon diversity of citizenship, a federal court must apply federal law to deter mine the preclusive effect of a prior federal court decision.” Id. at 1501. The panel then applied the federal common law rule that “a judgment exonerating a servant or agent from liability bars a subsequent suit on the same cause of action against the master or principal based solely on respon-deat superior,” and affirmed the district court’s dismissal of Data Lease’s counterclaims. Id. at 1502. Just as in Citibank, we must apply federal collateral estoppel law to determine the preclusive effect of the district court’s grant of summary judgment to Barnard. For this reason, TBW’s first argument lacks merit, and there is no need to certify any question of law to the Florida Supreme Court. As for whether HDR should have been estopped under federal law, the rule for applying either direct or collateral estoppel is well-established. A party asking the court to apply estoppel must establish that “(1) the issue at stake is identical to the one involved” in the earlier proceeding; “(2) the issue was actually litigated” in the earlier proceeding; “(3) the determination of the issue ... must have been a critical and necessary part” of the earlier judgment; and “(4) the ■ party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue.” Dana v. E.S. Originals, Inc., 342 F.3d 1320, 1323 (Fed.Cir.2003) (internal quotation marks omitted). If established, then “estoppel operates to bar the introduction or argumentation of certain facts necessarily established in a prior proceeding.” United States v. Lee, 622 F.2d 787, 790 (5th Cir.1980). The problem with TBW’s argument is that the district court never had occasion to consider HDR’s collapse upon wetting theory of causation when adjudicating the summary judgment proceeding between TBW and Barnard. TBW had abandoned all theories of causation against Barnard except the lenses and pockets theory, and the district court" }, { "docid": "1859514", "title": "", "text": "prior proceeding; (2) The issue was actually litigated in the prior proceeding; (3) The determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the first action; and (4) The party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding. Christo, 223 F.3d at 1339; Cope, 2000 WL 1639590, at *8. In the present case, the Defendant has failed to establish the second element of collateral estoppel; the Defendant has failed to show that reasonably equivalent value was actually litigated in the State Court Action. In his Motion for Summary Judgment, the Defendant asserts that during the State Court Action the Debtor raised as his eighth affirmative defense that the Contract should be set aside because “[a]t the time of the delivery of the [buyer’s] offer ... the Defendants knew or should have known that the contract was insubstantial in that the value of the property being offered to purchase by the alleged buyer ‘Kennedy’ was undervalued.” Accordingly, the Defendant argues that “[t]he issue of value of the property was raised and adjudicated in the Florida court.” “The first rule for identifying the issues to be precluded is that if there is no showing as to the issues that were actually decided, there is no issue preclusion. The burden is on the party asserting preclusion to show actual decision of the specific issues involved.” 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4420 (2002). Although the Defendant makes the assertion that the value of the property was actually litigated in the State Court Action, the Defendant fails to point to any specific findings of fact made by the state court judge. The Final Judgment of Specific Performance makes no reference to whether a reasonably equivalent value was received in exchange for the Manalapan Property. The fact that the issue of the value of the Manalapan Property was raised as a defense by the Debtor is simply not dispositive that" }, { "docid": "22686934", "title": "", "text": "See 2 Restatement §§43-44, 52, 55. These exceptions originated “as much from the needs of property law as from the values of preclusion by judgment.” 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4448, p. 329 (2d ed. 2002) (hereinafter Wright & Miller). Third, we have confirmed that, “in certain limited circumstances,” a nonparty may be bound by a judgment because she was “adequately represented by someone with the same interests who [wa]s a party” to the suit. Richards, 517 U. S., at 798 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U. S., at 762, n. 2 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573,593 (1974). See also 1 Restatement §41. Fourth, a nonparty is bound by a judgment if she “assumed] control” over the litigation in which that judgment was rendered. Montana, 440 U. S., at 154. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260,262, n. 4 (1961); 1 Restatement § 39. Because such a person has had “the opportunity to present proofs and argument,” he has already “had his day in court” even though he was not a formal party to the litigation. Id., Comment a, at 382. Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611, 620, 623 (1926); 18A Wright & Miller §4454, at 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a non-party later brings suit as an agent for a party who is bound by a judgment. See id., §4449, at 335. Sixth, in certain circumstances a special" }, { "docid": "16297532", "title": "", "text": "court to apply collateral estoppel must establish that: (1) the issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of the issue in the prior litigation must have been “a critical and necessary part” of the judgment in the first action; and (4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding. Dana v. E.S. Originals, Inc., 342 F.3d 1320, 1323 (Fed.Cir.2003) (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir.1998)); see also Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 1569 (Fed.Cir.1983) (describing the same collateral estoppel factors as above, with the third factor above characterized as, “the determination of those issues in the prior action was necessary and essential to the resulting judgment____”) (citing IB J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice 110.443[1] (2d ed.1983) and Restatement (Second) of Judgments §§ 27, 39 (1980)). The Restatement provides the general rule of issue preclusion: “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments § 27, at 250 (1982). The issues before this court and the ASBCA do not appear to be “identical,” such that a preclusive effect should stem from the first forum to rule. In this regard, Northrop Grumman suggests, and has not been contradicted by the defendant in the filings before this court, that the issue before the ASBCA is an accounting issue based on the failure of the contractor to comply with Cost Accounting Standard (CAS) 418.40(c), which requires allocation based on general purpose assets exhibiting a “beneficial or causal relationship” to government contracts in general. The essential issue before the ASBCA is not the same issue as is before this court, whether special purpose assets were" }, { "docid": "7651033", "title": "", "text": "to the nonparties who file a subsequent suit.”); Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir.) (indicating that the interests of the nonparty must be adequately represented by another vested with the authority of representation), cert. denied, 484 U.S. 992, 108 S.Ct. 511, 98 L.Ed.2d 511 (1987); see also supra note 10. But see In re Medomak Canning, 922 F.2d at 901 (explicitly finding virtual representation even where the representation was not authorized). Rather than requiring the legal obligation or accountability in all circumstances, however, the cases are better read as indicating that such a relationship is but one factor that will push mere sharing of parallel interests, into privity for res judicata or collateral estoppel purposes. 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure ¶ 4457 (noting that all of the cases finding virtual representation have involved several factors including adequate litigation by a party holding parallel interests). . The bankruptcy court’s decision did not discuss those provisions relating to Mrs. Kaplan and, in fact, placed some emphasis on those applying only to Mr. Kaplan. The bankruptcy court considered the guaranty significant in determining Mr. Kaplan personally liable for the amount of the tax refund. In re Kaplan, 1995 WL 500599, at *10-11 (citing the provision and noting that the “Debtor cannot guarantee the payment of the Refund and then argue that it was never his intention to be personally liable for such payment”). . Although not directly raised by First Options, under the doctrine of issue preclusion Mrs. Kap-lan appears to be precluded from raising certain defenses to its breach of contract claim against her. \"Issue preclusion may be invoked when (1) the identical issue was decided in a prior adjudication; (2) there was a final judgment on the merits; (3) the party against whom the bar is asserted was a party to or in privity with a party to the prior litigation; and (4) the party against whom the bar is asserted had a full and fair opportunity to litigate the issue in question.” Board" }, { "docid": "10936618", "title": "", "text": "to the pricing authority of the Milk Commission. The federal court plaintiffs are five individual Maine market producers. The attorney representing the federal court plaintiffs represented all plaintiffs in the state court litigation. It is undisputed that MMP is financing the federal court action and that four of the five federal court plaintiffs are members of MMP who contributed money towards meeting MMP’s expenses in litigating the state court action. Because the named plaintiffs in the state and federal court actions are not identical, the issue is whether the federal plaintiffs are in privity with MMP for res judicata purposes. The applicability of res judicata generally and preclusion by representation specifically “must be determined as a matter of substance and not of mere form,” based in part on an identification of the interests advanced in the first proceeding. Chicago, Rock Island & Pacific Railway Co. v. Schendel, 270 U.S. 611, 620, 46 S.Ct. 420, 424, 70 L.Ed. 757 (1926). See also Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). Cf. 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4448 at 408-09 [court must look to reasons for holding a person bound by a prior judgment]. An analysis of the preclusive effect of association representation requires consideration of several factors, including: (1) the adequacy of representation; (2) whether individual members of an association have interests which conflict with those of the association; (3) the degree to which the association is involved in the activities of its individual members; (4) whether, and to what extent, individual members participated in earlier litigation involving the association; and (5) whether, and to what extent, individual members have authorized the association to represent their individual interests. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, § 4456 (1981). In the vast majority of cases the determination as to whether individual members of an association or membership organization are bound by a judgment in an earlier action involving the organization usually turns upon whether the members consented" }, { "docid": "22034899", "title": "", "text": "estoppel, or issue preclusion, bars the relitigation of issues actually adjudicated in previous litigation between the same parties. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4402 (1981). Res judicata bars all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties on the same cause of action. McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir.1986). In determining whether successive lawsuits involve the same cause of action, we consider: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 459 U.S. 1087, 74 L.Ed.2d 932 (1982). To foreclose relitigation of an issue under collateral estoppel: (1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action. Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1360 (11th Cir.1985). An arbitration decision can have res judicata or collateral estoppel effect even if the underlying claim involves the federal securities laws. C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987). In applying res judicata and collateral estoppel to an arbitration proceeding, we make an examination of the record, if one exists, including any findings of the arbitrators. See, e.g., Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1950). We must decide whether a rational fact-finder could have reached a conclusion based upon an issue other than that which the defendant seeks to foreclose. See Ashe v." }, { "docid": "5925961", "title": "", "text": "law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.’ ” Arizona v. California, 530 U.S. 392, 414, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000) (quoting Restatement (Second) of Judgments § 27, at 250 (1982)). This circuit has previously applied collateral estoppel to a confirmed arbitration award. Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 927-28 (10th Cir.1992); see 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4475.1, at 514-18. The doctrine precludes a court from reconsidering an issue previously decided in a prior action where (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Estate of True v. C.I.R., 390 F.3d 1210, 1232 (10th Cir.2004). B-S Steel concedes the second and third requirements but argues that the first and fourth requirements are not met here. Specifically, it contends that because the arbitration was restricted to B-S Steel’s pre-April 3, 2001, claims, the issues before the arbitration panel and in this lawsuit are not identical. Further, it maintains that it lacked “a full and fair opportunity to litigate issues critical to its post-April 3, 2001 claims.” Appellant’s Br. at 20. We disagree. In order to satisfy the first prong, it is necessary, in the arbitration context, to determine “ ‘with clarity and certainty’ that the same issues were resolved.” Bear Stearns & Co., Inc. v. 1109580 Ontario, Inc., 409 F.3d 87, 91 (2d Cir.2005). B-S Steel suggests that “[i]t is axiomatic that ... issues involving conduct in one time period are different than ... issues based on different conduct in a different time period.” Appellant’s Br. at 24. On the other hand, the appellees identify the issue" }, { "docid": "23127391", "title": "", "text": "Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989) (“[I]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a facto [r] in determining whether there is an abuse of discretion.”) (quotation omitted). The district court noted that throughout the LHWCA litigation and this ease, Sedlack had consistently alleged that he was injured while working for Braswell aboard the SNELL. On that basis, the court concluded that Sedlack’s own allegations established the applicability of the work-related claims exclusion. Sedlack challenges that ruling arguing that collateral estoppel bars operation of the work-related claims exclusion to defeat his claim, because the adverse decision in his LHWCA proceeding determined that his alleged injury was not work-related. We disagree. Collateral estoppel forecloses “the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [issue preclusion] is asserted had a full and fair opportunity to litigate.” Ramsay v. INS, 14 F.3d 206, 210 (4th Cir.1994) (quotation omitted). For collateral estoppel to apply, the proponent must establish that: (1) the issue sought to be precluded is identical to one previously litigated; (2) the issue must have been actually determined in the prior proceeding; (3) determination of the issue must have been a critical and necessary part of the decision in the prior proceeding; (4) the prior judgment must be final and valid; and (5) the party against whom estoppel is asserted must have had a full and fair opportunity to litigate the issue in the previous forum. See id. Sedlack’s invocation of issue preclusion fails on the “identity of issues” and “actually determined” requirements. The dispositive issue in the LHWCA proceeding before the ALJ was not whether the accident was work-related, but rather, “[whether] an injury occurred on April 16, 199[1].” Sedlack argues that the ALJ’s finding that the accident did not occur as alleged by Sedlack was a finding-that the accident was not work-related." }, { "docid": "7224820", "title": "", "text": "(2d Cir.2010) (citing 18A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4446) (“So long as the request for declaratory relief is combined or followed with coercive relief, the claim-preclusion rules that apply to actions for coercive relief apply with full force.”). As held in Empire Fire, the supplemental nature of declaratory relief “requires that preclusive effect can only be given to relitigation of any issue actually litigated and necessary to the judgment rendered.” Empire Fire & Marine Ins. Co., 880 F.2d at 1294-97 (emphasis in original) (adopting the rationale of the former Fifth Circuit in Raspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530 (5th Cir.1978)). In other words, “the preclusive effect of a prior declaratory proceeding should be viewed, within the usual framework of res judicata, as presenting a special problem of issue preclusion.” Id. at 1296; see also Magaldi v. Safeco Ins. Co. of Am., No. 10-80280-CIV, 2010 WL 2542011, at *3 (S.D.Fla. June 22, 2010) (“Under the declaratory judgment exception to the [claim preclusion rule], the preclusive effect of a declaratory judgment is limited to the subject matter of the declaratory relief, with the rule of preclusion prohibiting only relitigation of any issue actually litigated and necessary to the judgment rendered in the first filed suit.”) (citations, omitted) (emphasis in original). Issue preclusion, otherwise known as collateral estoppel, applies when the issue at stake is identical to the one involved in the prior proceeding and the issue was actually litigated and decided in the prior proceeding. See Lozman v. City of Riviera Beach, 713 F.3d 1066, 1080 (11th Cir.2013) (citing Pleming v. Universalr-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir.1998)). Moreover, “the issue must have been ‘actually litigated and resolved in a valid court determination essential to the prior judgment.’ ” Id. (quoting Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008)). III. Analysis As previously indicated, in the prior action between the parties Plaintiff asserted, and then voluntarily dismissed, his inventorship claim. As a result, Defendants argue that all" }, { "docid": "5925960", "title": "", "text": "from pursuing its post-April 3, 2001, claims against the appellees. In making this argument, B-S Steel invokes “the traditional ‘jurisdictional competence’ limitation on” preclusion doctrine, suggesting that because the arbitration proceeding had no jurisdiction over claims regarding post-April 3, 2001, transactions, collateral estoppel cannot apply to bar those claims in district court. Appellant’s Br. at 26. However, the cases cited by B-S Steel in support of this argument apply this limitation to the doctrine of res judicata, or claim preclusion, which normally bars not only claims that were actually raised in a prior proceeding but also claims that “could have been raised\" but were not. Wolf v, Gruntal & Co., 45 F.3d 524, 527 (1st Cir.1995) (distinguishing res judicata from collateral estoppel on that basis). The concept of jurisdictional competence simply recognizes that a particular claim could not have been raised in the prior proceeding and that res judicata is therefore inapplicable. In contrast to res judicata, the doctrine of collateral estoppel, also known as issue preclusion, “attaches only ‘[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.’ ” Arizona v. California, 530 U.S. 392, 414, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000) (quoting Restatement (Second) of Judgments § 27, at 250 (1982)). This circuit has previously applied collateral estoppel to a confirmed arbitration award. Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 927-28 (10th Cir.1992); see 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4475.1, at 514-18. The doctrine precludes a court from reconsidering an issue previously decided in a prior action where (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in" }, { "docid": "8209248", "title": "", "text": "other courts of that state would afford it. Id. Ordinarily, a party seeking to assert issue preclusion as a defense has the burden of proof. Berr v. Fed. Deposit Ins. Corp. (In re Berr), 172 B.R. 299, 306 (9th Cir.BAP1994). In order to meet its burden, the party must “introduce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action. Any reasonable doubt as to what was decided by a prior judgment should be resolved against giving it collateral estoppel effect.” Id. To determine the preclusive effect of the Idaho state court judgment this Court must apply Idaho state law. Elias, 03.4 I.B.C.R. at 247, 302 B.R. 900. Idaho law requires five factors to be met in order for a judgment to have preclusive effect: (1) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue decided in the earlier case; (2) the issue decided in the prior litigation was identical to the issue presented in the present action; (3) the issue sought to be precluded was actually decided in the prior litigation; (4) there was a final judgment on the merits in the prior litigation; and (5) the party against whom the issue is asserted was a party or in privity with a party to the litigation. Id. (citing Rodriguez v. Dep’t of Correction, 136 Idaho 90, 29 P.3d 401, 404 (2001)). During oral argument at the conclusion of the trial, the parties discussed whether Plaintiffs claims against Defendant are precluded by virtue of the state court divorce decree. In this case, any alleged damage to Plaintiff occasioned by the gelding of Plaintiffs prized stallion occurred prior to the conclusion of the divorce proceedings, and before the state court’s order for the division of the parties’ property—in fact, several years before the court’s property division was finalized. FSW was community property, and was valued and awarded to Plaintiff in the state court proceedings. Therefore, the first element of issue preclusion is met: the Plaintiff had a full and fair opportunity to raise" }, { "docid": "11131188", "title": "", "text": "estoppel) “prevents a party from relitigating issues that have been previously adjudicated.” Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 770 (1st Cir. 2010). The doctrine applies to issues of fact as well as those of law, Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), and can apply where the subsequent proceeding involves a cause of action different from the first, see Comm’r v. Sunnen, 333 U.S. 591, 601, 68 S.Ct. 715, 92 L.Ed. 898 (1948). Under modern preclusion doctrine, “the central question is ‘whether a party has had a full and fair opportunity for judicial resolution of the same issue.’ ” Rodríguez-García, 610 F.3d at 771 (quoting Fiumara v. Fireman’s Fund Ins. Cos., 746 F.2d 87, 92 (1st Cir.1984)). Generally, final arbitral awards are afforded the same preclusive effects as are prior court judgments. See FleetBoston Fin. Corp. v. Alt, 638 F.3d 70, 79 (1st Cir.2011) (citing Wolf v. Gruntal & Co., 45 F.3d 524, 528 (1st Cir.1995)). As we have noted, however, “there may be particular difficulties” in applying preclusion principles to an arbitral award, especially where the reasoning behind the award is unexplained. Id. at 80. Thus, “it has been suggested that courts have discretion as to whether issue preclusion is appropriate” in the arbitration context. Id. (citing 18B Charles Alan Wright et al., Federal Practice & Procedure § 4475.1, at 518 (2d ed.2002)). Here, though, “[w]e need not consider that suggestion, as we find it clear that the outcome we reach is consistent with the traditional requirements.” Id. Under those traditional requirements, issue preclusion may be applied to bar relitigation of an issue decided in an earlier action where: (1) the issues raised in the two actions are the same; (2) the issue was actually litigated in the earlier action; (3) the issue was determined by a valid and binding final judgment; and (4) the determination of the issue was necessary to that judgment. Id.; accord Mercado-Salinas v. Bart Enters. Int’l, Ltd., 671 F.3d 12, 21-22 (1st Cir.2011). Here, Manganella argues that two of these predicates are missing: identity of the issues" }, { "docid": "7537688", "title": "", "text": "underlying this rule include the preservation of judicial resources and the protection of litigants. Montana, supra, 440 U.S. at 153-54, 99 S.Ct. at 973-74. The findings of agencies made in the course of proceedings which are judicial in nature should be given the same preclusive effect as findings made by a court. United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966). Issue preclusion should only be applied where the identical issue sought to be relitigated was actually determined and necessarily decided in a prior proceeding in which the litigant against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. See Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Parklane Hosiery, supra, at 326 n. 5; Marlene Industries, supra, at 1015-16. A factual issue is “necessarily decided” if its determination was necessary to support the judgment entered in the prior proceeding. See 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4421, p. 192; Marlene Industries, supra, at 1015-16. While the effect of the 1974 shutdown and 1975 reopening of the plant was actually litigated in the underlying unfair labor practices proceeding it was not necessary to the Board’s order. Accordingly Judge Ricci’s findings cannot preclude relitigation on that issue in the supplemental backpay proceeding. “ Tt is basic to the law of [issue preclusion] that a finding in one proceeding cannot bind tribunals in subsequent cases unless the finding acted as a basis for final judgment in the first.’ ‘The determination of an issue in an earlier proceeding must be essential to the judgment; it cannot be dicta.’ ” (citations omitted) Marlene Industries, supra, at 1015-16. See also Block v. Bourbon County Commissioners, 99 U.S. (4 Otto) 686, 693, 25 L.Ed. 491 (1878); Segal v. American Telephone & Telegraph Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.1979); Evans v. Wilkerson, 605 F.2d 369, 372 (7th Cir.1979). Judge Ricci’s finding that back pay periods should continue past the point of the plant shutdown was not essential to either his" }, { "docid": "12172875", "title": "", "text": "§§ 43-44, 52, 55. “These exceptions originated ‘as much from the needs of property law as from the values of preclusion by judgment.’ ” Taylor, 128 S.Ct. at 2172 (quoting 18A Wright & Miller, Federal Practice and Procedure § 4448 (2d ed.2002)). Utah contends that the substantive legal relationship at issue in this case is that of co-beneficiaries of the Fund. We disagree with Utah’s characterization of the Fund beneficiaries’ relationship. As recognized by the district court, a substantive legal relationship as contemplated by the exception is one in which the parties to the first suit are somehow accountable to nonparties who file a subsequent suit raising identical issues. Utah has never alleged a fiduciary, contractual or property relationship between current and prior litigants. Indeed, Utah continues to argue, as it did in support of its theory of virtual representation that the beneficiaries of the Fund do not hold individual or collective property rights; instead, they share an indivisible, collective interest in the trust corpus, and any obtainable remedy benefits all beneficiary class members. Such concurrent property relationships do not justify non-party preclusion. See 18A Wright & Miller, supra § 4461 (explaining the general rule that such concurrent relationships do not justify nonparty preclusion, but are likely to provide better justification for a virtual representation analysis than most other circumstances). There is nothing in the record to support a finding that any Fund beneficiary was authorized to bring suit or was in any way accountable to any other co-beneficiary, except as representatives within the context of the class actions. Instead, it appears that the Bigman plaintiffs were mere self-appointed volunteers without authority to bind any other beneficiaries by litigation. Such an elastic concept of privity violates due process of law. Richards, 517 U.S. at 804-05,116 S.Ct. 1761. V. CONCLUSION We AFFIRM the district court’s order finding that Beneficiaries’ claim in Pelt is not precluded by the judgments in Sakez-zie, Jim, or Bigman. The case is REMANDED for proceedings consistent with this opinion. Utah’s motion for supplemental oral argument is DENIED. . The district court determined that its ruling involved a" }, { "docid": "22967169", "title": "", "text": "“It being understood that your sublicensee shall have no right to commence or settle any claim or litigation hereunder.” The other relevant agreement is the March 12,1996 Closed Circuit Television Agreement entered into between [the licensor] and [NSS]. That agreement at paragraph 7 provides that there is no right to a piracy action to be pursued by [NSS]. [NSS’s] effort to overcome the language of the contract does not create a material fact for trial. Time Warner now argues that the district court below should have given preclu-sive effect to the earlier ruling in Coach’s Comer. It claims that Coach’s Corner determined that when a commercial establishment shows a sporting event ordered through a residential-cable service rather than properly paying the fees exacted by the commercial distributor, the distributor does not have standing to sue the authorized residential-service provider under § 605. NSS obviously disagrees. Our circuit has held that a prior decision shall have preclusive effect on an issue raised in a later ease if four elements are met: (1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding; (2) determination of the issue must have been necessary to the outcome of the prior proceeding; (3) the prior proceeding must have resulted in a final judgment on the merits; and (4) the party against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding. Smith v. SEC, 129 F.3d 356, 362 (6th Cir.1997) (en banc) (quoting Detroit Police Officers Ass’n v. Young, 824 F.2d 512, 515 (6th Cir.1987)). In the present case, the district court concluded that Time Warner had failed to establish the second and fourth elements of this test. Because Time Warner and NSS disagree as to whether these four elements were met, an analysis of each is necessary in order to decide if the district court erred by failing to give preclusive effect to the Coach’s Comer decision. 1. Identity of issues Time Warner argues that the Coach’s Comer court was faced with the precise threshold" }, { "docid": "8422336", "title": "", "text": "which the private party has litigated successfully.” (NLRB appellate brief at 25.) Without adopting so broad a rule, we conclude that there was no estoppel in this case. Under general principles of collateral estoppel, or issue preclusion, a judgment in a prior proceeding bars a party and its privies from relitigating an issue if, but “only if:” (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. Local 32B-32J Service Employees International Union v. NLRB, 982 F.2d 845, 849 (2d Cir.) (internal quotation marks omitted), cert. denied, 509 U.S. 904, 113 S.Ct. 2995, 125 L.Ed.2d 689 (1993); see generally 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4416, at 137-38 (1981) (“Wright, Miller & Cooper”). If the issues were not identical, there is no collateral estoppel. Compare Local 32B-32J Service Employees International Union v. NLRB, 982 F.2d at 849-50 (no collateral estoppel where issue in court proceeding had been whether part of contract had been assumed, whereas issue before the Board was whether the entire contract had been assumed), with NLRB v. Donna-Lee Sportswear Co., 836 F.2d 31, 34 (1st Cir.1987) (collateral estop-pel applied where issue in both proceedings was existence of contract). Nor is litigation of an issue barred by collateral estoppel if that issue was not actually decided in the prior proceeding or if its decision was not -necessary to the judgment. See, e.g., Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); Balderman v. United States Veterans Administration, 870 F.2d 57, 62 (2d Cir.1989). In the present case, even aside from the special considerations that may counsel against application of preclusion doctrines against a governmental agency seeking to enforce federal law, see, e.g., United States v. East Baton Rouge Parish School Board, 594 F.2d 56, 58 (5th Cir.1979) (claim preclusion); Wright, Miller &" } ]

[ { "docid": "13394708", "title": "", "text": "the record to suggest that these determinations were not “full, fair, and adequate,” or were otherwise deficient in any of the ways enumerated in the federal habeas statute, so as to overcome the presumption of their correctness that must be accorded by a federal court entertaining a habeas petition. See 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770-71, 66 L.Ed.2d 722 (1981). Consequently, we accept the finding that Neuman voluntarily waived his right to testify in his own behalf. There was not, therefore, any violation of that constitutional right that could support his habeas petition. See 28 U.S.C. § 2254(a). II Neuman alleges that rulings by the trial court admitting testimony Neuman describes as hearsay violated his rights under the Confrontation Clause. 1. Admission of Ronald Neuman’s Out-of-Court Statements Ronald Neuman, having invoked his right against self-incrimination, was unavailable to testify at his son’s trial. The trial court admitted testimony from an Officer Wenk that Ronald Neuman had confessed to having oral sex with the complainant, and to firing a gun into the air. Neuman argues that admission of his father’s testimony violated his rights under the Confrontation Clause. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, the admission of out-of-court statements of unavailable hearsay declarants pursuant to “firmly rooted” exceptions to the hearsay rule does not violate the Confrontation Clause, because the statements are presumed to bear adequate indicia of reliability. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). The district court correctly held that Wenk’s out-of-court statements were admissible under the declaration against penal interest exception to the hearsay rule, a “firmly rooted” exception. Cf. Fed.R.Evid. 804(b)(3). Therefore, the admission of this testimony did not violate Neuman’s rights under the Confrontation Clause. 2. Admission of Officer Johnson’s Testimony Neuman next argues that it was error for the trial court to admit testimony from an Officer Johnson regarding statements that he overheard one or both of the Neumans make. Johnson testified that when he arrived at" } ]

[ { "docid": "5290402", "title": "", "text": "Petrillo moved for a new trial based on newly discovered evidence. The district court denied the motion. At the sentencing hearing the following month, the district court denied Petrillo’s request to group Petrillo’s tax and mail fraud convictions pursuant to U.S.S.G. § 3D1.2. On appeal to this court, Petrillo challenges the admission of the plea allocu-tions, the denial of his motion for a new trial and the district court’s refusal to group his mail and tax fraud convictions. II. Admission of plea allocutions. Petrillo first objects to the admission at trial of the guilty plea allocutions of co-defendants and alleged co-conspirators Killeen and Bock. Petrillo argues that the allocutions, admitted as statements against penal interest pursuant to Federal Rule of Evidence 804(b)(3), violated his rights under the Confrontation Clause of the Sixth Amendment. In particular, Petrillo contends that the allocutions fail to satisfy the Confrontation Clause safeguards established by the Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) and Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). In Ohio v. Roberts, the Court held that hearsay evidence could be admitted at trial without running afoul of the defendant’s right to confront his accuser when (1) the declarant is unavailable and (2) the statement is either admitted pursuant to “a firmly-rooted hearsay exception” or has “particularized guarantees of trustworthiness.” Ohio, 448 U.S. at 66, 100 S.Ct. 2531. We have noted that this court has never decided whether a statement against penal interest under Fed.R.Evid. 804(b)(3) qualifies as a firmly-rooted hearsay exception, Latine v. Mann, 25 F.3d 1162, 1166 (2d Cir.1994), as the district court here correctly pointed out. United States v. Petrillo, 60 F.Supp.2d at 218. However, a plurality of the Supreme Court in Lilly held that, under circumstances somewhat similar to those of the present case, “accomplices’ confessions that inculpate a criminal defendant are not within a firmly-rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” 527 U.S. at 134, 119 S.Ct. 1887. We note that Lilly does not" }, { "docid": "1704678", "title": "", "text": "Id. at 643-45. However, McCleskey was not a habeas case, but a federal drug case. Therefore, our analysis was not bound by the strictures of the AEDPA. Accordingly, although we relied on the decision in Lee, we did not perform a thorough analysis of whether the principle was \"clearly established” by the Supreme Court, as that term is used in the AEDPA. . The State also raises two Sixth Circuit cases to support its proposition that the Supreme Court had not previously clearly established the rule of Lilly. However,- neither case is applicable here. In Neuman v. Rivers, 125 F.3d 315 (6th Cir.1997), we held that statements against penal interest fell within a \"firmly rooted” hearsay exception. But in that case, the admitted statement did not inculpate the declarant's accomplice, but only spoke to the declarant's role in the crime. See id. at 319-20. In Gilliam v.Mitchell, 179 F.3d 990 (6th Cir.1999), we relied on Neuman and likewise held an accomplice’s confession admissible. We did not, however, perform an analysis of whether the declarant's statement spoke only to his own role in the crime or inculpated his cohorts as well. Rather, in light of Lilly pending at the time in front of the Supreme Court, we gave only a cursory review of the “firmly rooted” exception issue, and rested our holding alternatively on two other grounds. See id. at 994 n. 1. First, we found that the declarant's statement contained additional particularized guarantees of trustworthiness. Id. at 994. And second, we found that any error was nonetheless harmless. Id. at 994-95. . Bulls’ statement went as follows: Q: Did you ask [Matthews] if he had anything? A: Yes. Q: And what was that? A: I asked him if he had a gun- — some heat. Q: And did he? A: Yes. Q: What kind? A: Shotgun. Q: Where did he get the shotgun from? A: He went upstairs. Q: Now you said you told [Hill] something. A: Yes. Q: What was that? A: I told him the same thing that I told [Matthews] about the fag and robbing. Q: So" }, { "docid": "19166826", "title": "", "text": "States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), the court again addressed the admission into evidence of the confession of an accomplice, and, on that occasion, the court did specifically address Fed.R.Evid. 804(b)(3), the against penal interest exception to the hearsay rule. The court held that, under the rule itself (not the Confrontation Clause), where the confession is an extended narration, only those parts that are individually self-inculpatory are admissible. All other parts of the statement that are non-self-inculpatory, or self-exculpatory, or neutral collateral remarks, may not be admitted. That decision having been made, necessitating a remand for further proceedings in the court of appeals, the Supreme Court expressly declared that “we need not decide whether the hearsay exception for declarations against interest is ‘firmly rooted’ for Confrontation Clause purposes.” 512 U.S. at 605, 114 S.Ct. at 2437. More recently, in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion), the court squarely held that “accomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” 527 U.S. at 134, 119 S.Ct. at 1899. Thus, as previously stated, even if the predicate requirements of the rule had been met (by a judicial ruling that Barrett was unavailable) thereby permitting, under the rules of evidence, the admission into evidence of Barrett’s against penal interest statement to Campbell, the Confrontation Clause was violated because the against penal interest exception to the hearsay-rule is not a firmly rooted exception for purposes of the Confrontation Clause and, as discussed below, there was no showing that the statement was otherwise reliable due to “particularized guarantees of trustworthiness.” Indicia of Reliability Through Particularized Guarantees of Trustworthiness From and after Ohio v. Roberts, sttpra, the Confrontation Clause jurisprudence of the Supreme Court teaches that hearsay which is not admissible under a firmly rooted exception to the hearsay rule may yet be admitted without offending the right of confrontation if the statement is supported by “particularized guarantees of trustworthiness.” Roberts, 448" }, { "docid": "17963012", "title": "", "text": "a codified exception to the hearsay rule or those labeled “not hearsay,” are judged to be sufficiently rehable to permit the government to introduce them as evidence against a defendant without the right to subject them to cross-examination. Specifically, the Supreme Court has ruled that out-of-court declarations that are, by definition, “hearsay” are nevertheless admissible where the declarant is unavailable to testify at trial, providing the hearsay statements bear “adequate ‘indicia of reliability.’ ” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Id. In Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 1897, 144 L.Ed.2d 117 (1999), the Supreme Court held “that accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” Thus, the fact that a statement is against the penal interest of the declarant does not in itself provide a basis for its admission against another defendant. This does not mean that the Confrontation Clause bans all use of nontestifying accomplice statements that incriminate a defendant. “Rather, it simply means that the government must satisfy the second prong of the Ohio v. Roberts [ ] test in order to introduce such statements.” Lilly, 527 U.S. at 134, n. 5, 119 S.Ct. 1887. The “particularized guarantees of trustworthiness” must be inherent in the circumstances of the testimony itself; the fact that other evidence corroborates the testimony in question is insufficient. Lilly, 527 U.S. at 136-37, 119 S.Ct. 1887. The Lilly court addressed the standard for determining whether particularized guarantees of trustworthiness are sufficiently strong for the Constitution to permit without cross-examination the admission of a nontestifying accomplice’s confession which incriminates a defendant as follows: When a court can be confident — as in the context of hearsay falling within a firmly rooted exception — that" }, { "docid": "1769693", "title": "", "text": "the exception “is at least two centuries old, currently widely accepted among the States,” and carries “substantial guarantees of ... trustworthiness ... [that] cannot be recaptured even by later in-court testimony.” White v. Illinois, 502 U.S. 346, 355-56 n. 8, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Established practice, in short, must confirm that statements falling within a category of hearsay inherently “carry special guarantees of credibility” essentially equivalent to, or greater than, those produced by the Constitution’s preference for cross-examined trial testimony. Id. at 356, 112 S.Ct. 736. This Court has found, on several occasions, that a statement against penal interest is not a firmly rooted hearsay exception, at least insofar as the exception is used to admit a declarant’s mutually inculpatory statement against a criminal defendant. See Hill, 337 F.3d at 715-16 (finding state court’s reliance on a statement against penal interest as a clearly established hearsay exception “contrary to” clearly established federal law); see also United States v. McCleskey, 228 F.3d 640, 644 (6th Cir.2000) (“[I]t is clear that Supreme Court Confrontation Clause jurisprudence does not permit the introduction of hearsay declarations uttered by accomplices in law enforcement custody that inculpate a defendant, absent further ‘particularized guarantees’ of the declaration’s trustworthiness.”). Compare Calvert v. Wilson, 288 F.3d 823, 837-38 (6th Cir.2002) (finding a declarant’s mutually inculpatory statement inadmissible against a third-party criminal defendant), with Neuman v. Rivers, 125 F.3d 315, 319-20 (6th Cir.1997) (finding statements against penal interest firmly rooted when admitted against the declarant). Moreover, this Court has found that it was clearly established, prior to the Supreme Court’s 1999 Lilly decision, that such statements were not firmly rooted hearsay exceptions in light of the Supreme Court’s precedents in Douglas (1965), Bruton (1968), and Lee (1990). See Hill, 337 F.3d at 715-16. Even were this Court to get past Kentucky’s application of the Taylor factors and apply the deferential AEDPA standard of review, then, Respondent’s argument would still fail because admitting an inculpatory statement, not against the declarant, but against an accomplice, was “contrary to” clearly established Supreme Court precedent in 1996. 2. Ash’s Statement Bore" }, { "docid": "22567221", "title": "", "text": "are satisfied. The district court declared Bell unavailable after he had been granted immunity yet refused to testify. Also the district court found that in his statement used at Cotton’s trial, Bell admits to a crime so far out of the ordinary, homosexual rape, that no reasonable person would have made the statement unless it was true. There are two methods for satisfying the third requirement of Rule 804(b)(3), which is also similar to the second requirement of the Confrontation Clause, i.e., the trustworthiness of the statement. United States v. Flores, 985 F.2d 770, 775 (5th Cir.1993). If the hearsay statements are admitted under a “firmly rooted exception” to the hearsay rule, trustworthiness is presumed. Lilly v. Virginia, 527 U.S. 116, 124-25, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); see also Roberts, 448 U.S. at 66, 100 S.Ct. 2531. If not, the statements must bear adequate “indicia of reliability,” such that “adversarial testing would be expected to add little, if anything, to the statements’ reliability.” Lilly, 527 U.S. at 124-25, 119 S.Ct. 1887; see also Roberts, 448 U.S. at 66, 100 S.Ct. 2531. The Supreme Court has stated that although some statements that fall within the declaration-against-penal-interest concept may be inherently reliable, the concept itself “defines too large a class for meaningful Confrontation Clause analysis.” Lee v. Illinois, 476 U.S. 530, 544 n. 5, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Therefore, each category of statements that falls within the exception must be analyzed to determine whether statements in that category are inherently reliable. More recently in Lilly v. Virginia, the Supreme Court issued a plurality opinion which followed Lee’s framework of dividing statements into categories. 527 U.S. at 127, 119 S.Ct. 1887. The plurality determined that admission of the entire statement of an accomplice that contained portions which inculpated the accomplice and the defendant on trial was “inherently unreliable.” Id. at 131, 119 S.Ct. 1887. Similarly, this Circuit held in United States v. Flores, a decision prior to Lilly, that “a confession by an accomplice inculpating a defendant that is being offered as a declaration against penal interest is" }, { "docid": "22567222", "title": "", "text": "Roberts, 448 U.S. at 66, 100 S.Ct. 2531. The Supreme Court has stated that although some statements that fall within the declaration-against-penal-interest concept may be inherently reliable, the concept itself “defines too large a class for meaningful Confrontation Clause analysis.” Lee v. Illinois, 476 U.S. 530, 544 n. 5, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Therefore, each category of statements that falls within the exception must be analyzed to determine whether statements in that category are inherently reliable. More recently in Lilly v. Virginia, the Supreme Court issued a plurality opinion which followed Lee’s framework of dividing statements into categories. 527 U.S. at 127, 119 S.Ct. 1887. The plurality determined that admission of the entire statement of an accomplice that contained portions which inculpated the accomplice and the defendant on trial was “inherently unreliable.” Id. at 131, 119 S.Ct. 1887. Similarly, this Circuit held in United States v. Flores, a decision prior to Lilly, that “a confession by an accomplice inculpating a defendant that is being offered as a declaration against penal interest is not a firmly rooted exception” to the hearsay rule, and thus not inherently reliable. Flores, 985 F.2d at 775; see also United States v. Dean, 59 F.3d 1479, 1493 (5th Cir.1995). Accordingly, as per Lilly and Flores, the statement at issue in this case cannot be presumed trustworthy because it does not fit within a firmly rooted hearsay exception. Because this type of hearsay statement does not fit within a firmly rooted exception, then the required “indicia of reliability” must be shown from “particularized guarantees of trustworthiness.” Flores, 985 F.2d at 774-75 (citing Roberts, 448 U.S. at 65, 100 S.Ct. 2531). The Supreme Court in Wright held that these “particularized guarantees of trustworthiness” include only the relevant circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” Wright, 497 U.S. at 819, 110 S.Ct. 3139. Corroborating evidence may not be considered because it “would permit ... bootstrapping on the trustworthiness of other evidence at trial.” Id. at 823, 110 S.Ct. 3139. Again, a panel of this Circuit in" }, { "docid": "1769613", "title": "", "text": "that Lilly did not announce a “new rule” of criminal procedure, and thus could apply to cases on collateral review without regard to § 2254(d)(1). See Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that in habeas cases, a subsequently decided case does not present new law if it is “dictated by precedent existing at the time the defendant’s conviction became final”). In other words, we held that what was clearly established by Lilly was, in fact, clearly established before Lilly: “Douglas, Bruton, and Lee evidence that the Supreme Court had clearly established the principle that a co-defendant’s custodial confessions are unreliable and not within a ‘firmly rooted’ hearsay exception prior to Lilly.” Hill, 337 F.3d at 717. Because Douglas (1965), Bruton (1968), and Lee (1986) all pre-date the 1996 conclusion of Fulcher’s direct appeal, the principle was clearly established by that point as well. Kentucky disagrees, arguing on the basis of Neuman v. Rivers, 125 F.3d 315 (6th Cir.1997), and Gilliam v. Mitchell, 179 F.3d 990 (6th Cir.1999) (applying Neuman retroactively to 1994 conduct), that by the end of Fulcher’s direct appeal it was clearly established that Ash’s statement did fall into a firmly rooted hearsay exception— specifically, the hearsay exception in Feb. R. Evib. 804(b)(3) for statements against penal interest. But in Hill we distinguished both of these cases. We said that unlike the contested statements in Hill, which inculpated the defendant (as Ash’s do here), “the admitted statement [in Neuman ] did not inculpate the declarant’s accomplice, but only spoke to the declarant’s role in the crime.” 337 F.3d at 717 n. 5; see United States v. Franklin, 415 F.3d 537, 547 (6th Cir.2005) (rejecting the government’s argument that the statement against penal interest exception was firmly rooted in the Sixth Circuit because “in Neuman — the one case where this Court suggested as much — the statements at issue were made by the defendant and inculpated only himself’). And we noted that “[in Gilliam,] we gave only a cursory review of the ‘firmly rooted’ exception issue, and rested our" }, { "docid": "1769615", "title": "", "text": "holding alternatively on two other grounds [ie., the presence of ‘particularized guarantees of trustworthiness’ and harmless error].” Hill, 337 F.3d at 717 n. 5; see Gilliam, 179 F.3d at 994 n. 1 (expressly avoiding Neuman’s holding because the Supreme Court had recently heard oral arguments in Lilly). Thus neither Neuman nor Gilliam stand in the way of Hill’s holding that after Lee (1986) (the latest case we considered necessary to Lilly’s holding), it was clearly established that there was no firmly rooted hearsay exception for “accomplices’ confessions that inculpate a criminal defendant.” Lilly, 527 U.S. at 134, 119 S.Ct. 1887. Nor does it matter that Hill concerned statements by a declarant who was later tried for the crime to which he confessed, either as a codefendant in a consolidated trial (as in Hill), or as a sole defendant in a separate trial (as in Lilly). A prosecutor’s later decision to try a declarant does not affect whether the declarant’s statements possessed sufficient “indicia of reliability” at the time they were made. The test of whether such indicia exist references only the substance and circumstances of the hearsay statement’s declaration: [The] standard [for determining whether a hearsay exception is firmly rooted] is designed to allow the introduction of statements falling within a category of hearsay whose conditions have proven over time “to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath” and cross-examination at a trial. Lilly, 527 U.S. at 126, 119 S.Ct. 1887 (quoting Mattox, 156 U.S. at 244, 15 S.Ct. 337) (emphasis added). The logic of Lilly ’s holding is simply that because “an accomplice’s statements that shift or spread the blame to a criminal defendant” may evidence such a temptation for falsehood, they cannot fall within a firmly rooted hearsay exception. Lilly, 527 U.S. at 133, 119 S.Ct. 1887 (quoted in Hill, 337 F.3d at 713-14). Having considered the clearly established law with respect to Roberts’s “firmly rooted” category, we now address the clearly established law at the time of Fulcher’s direct appeal regarding certain" }, { "docid": "23588351", "title": "", "text": "no material departure from the reason of the general rule.” Id. at 65, 100 S.Ct. 2531 (internal quotation marks omitted). “ ‘The focus of the Court’s concern has been to insure that there are indicia of reliability which have been- widely viewed as determinative of whether the statement may be placed before the jury though there is no confrontation of the declarant, and to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ ” Id. (internal citation omitted) (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972)). From these principles, the Court has held that a hearsay statement is admissible and does not violate the Confrontation Clause where the witness is unavailable and the statement bears sufficient “indicia of reliability” in that it falls within a “firmly rooted hearsay exception,” or has “particularized guarantees of trustworthiness.” Id. at 65-66, 100 S.Ct. 2531; see also Lilly v. Virginia, 527 U.S. 116, 124-25, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality). First, a hearsay exception is “firmly rooted” if it “rest[s] upon such solid foundations that admission of virtually any evidence within [it] comports with the ‘substance of constitutional protection.’ ” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. For example, in United States v. Saks, 964 F.2d 1514 (5th Cir.1992), the Fifth Circuit identified several “firmly rooted” exceptions to the hearsay prohibition that would serve as exceptions to Bruton: the hearsay exception for co-conspirators in Rule 801(d)(2)(E), the “spontaneous declaration” exception in Rule 803(2), and the “medical examination” exception in Rule 803(4) of the Federal Rules of Evidence. See id. at 1525; White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); see also Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (holding that “no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception” like that for co-conspirators under Rule 801(d)(2)(E) (internal quotation marks omitted)); United States v. Shores, 33 F.3d 438, 442 (4th Cir.1994) (observing that Bruton does not" }, { "docid": "1760063", "title": "", "text": "guarantees of trustworthiness must be shown from the totality of the circumstances, but the relevant circumstances include only those surrounding the making of the statement and that render the declarant particularly worthy of belief. The circumstantial guarantees of trustworthiness are those that exist at the time the statement was made and do not include those that may be added by using hindsight. Idaho v. Wright, supra. An out of court statement is presumptively reliable, however, if it falls within a firmly rooted exception to the hearsay rule. State of Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Evidence admitted under such a firmly rooted exception to the hearsay rule is presumed to be so trustworthy that adversarial testing would add little to its reliability. Idaho v. Wright, supra at 821, 110 S.Ct. 3139. In this case, respondent argues that these statements were admissible as statements against penal interest. Respondent further contends that the hearsay exception codified by Fed.R.Evid. 804(b)(3), which includes statements against penal interest, is a firmly rooted exception to the hearsay rule. Accordingly, respondent argues that the admission of these statements did not result in a violation of petitioner’s right of confrontation. At the outset, this court notes that it is not at all clear that the statements against penal interests exception is a “firmly rooted exception” to the hearsay rule, as applied in circumstances similar to the instant case. It is true that a number of circuits, including the Sixth Circuit, have held that the statements against interest exception codified by Rule 804(b)(3) is a firmly rooted exception. See Neuman v. Rivers, 125 F.3d 315, 319 (6th Cir.), cert. denied, 522 U.S. 1030, 118 S.Ct. 631, 139 L.Ed.2d 610 (1997); United States v. York, 933 F.2d 1343, 1362-64 (7th Cir.1991); United States v. Seeley, 892 F.2d 1, 2 (1st Cir.1989); United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir.1983). However, the plurality opinion in Lilly, which was decided June 10, 1999, explicitly noted: [t]he decisive fact ... is that accomplices’ confessions that inculpate a criminal defendant are not within a" }, { "docid": "1769614", "title": "", "text": "Cir.1999) (applying Neuman retroactively to 1994 conduct), that by the end of Fulcher’s direct appeal it was clearly established that Ash’s statement did fall into a firmly rooted hearsay exception— specifically, the hearsay exception in Feb. R. Evib. 804(b)(3) for statements against penal interest. But in Hill we distinguished both of these cases. We said that unlike the contested statements in Hill, which inculpated the defendant (as Ash’s do here), “the admitted statement [in Neuman ] did not inculpate the declarant’s accomplice, but only spoke to the declarant’s role in the crime.” 337 F.3d at 717 n. 5; see United States v. Franklin, 415 F.3d 537, 547 (6th Cir.2005) (rejecting the government’s argument that the statement against penal interest exception was firmly rooted in the Sixth Circuit because “in Neuman — the one case where this Court suggested as much — the statements at issue were made by the defendant and inculpated only himself’). And we noted that “[in Gilliam,] we gave only a cursory review of the ‘firmly rooted’ exception issue, and rested our holding alternatively on two other grounds [ie., the presence of ‘particularized guarantees of trustworthiness’ and harmless error].” Hill, 337 F.3d at 717 n. 5; see Gilliam, 179 F.3d at 994 n. 1 (expressly avoiding Neuman’s holding because the Supreme Court had recently heard oral arguments in Lilly). Thus neither Neuman nor Gilliam stand in the way of Hill’s holding that after Lee (1986) (the latest case we considered necessary to Lilly’s holding), it was clearly established that there was no firmly rooted hearsay exception for “accomplices’ confessions that inculpate a criminal defendant.” Lilly, 527 U.S. at 134, 119 S.Ct. 1887. Nor does it matter that Hill concerned statements by a declarant who was later tried for the crime to which he confessed, either as a codefendant in a consolidated trial (as in Hill), or as a sole defendant in a separate trial (as in Lilly). A prosecutor’s later decision to try a declarant does not affect whether the declarant’s statements possessed sufficient “indicia of reliability” at the time they were made. The test of whether" }, { "docid": "1769612", "title": "", "text": "for the court in Lee to seek such “particularized guarantees of trustworthiness” if the statements fell within a “firmly rooted hearsay exception.” Our holdings in Bruton [,] ... Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), Gray v. Maryland, ... and Lee v. Illinois ... were all premised, explicitly or implicitly, on the principle that accomplice confessions that inculpate a criminal defendant are not per se admissible (and thus necessarily fall outside a firmly rooted hearsay exception), no matter how much those statements also incriminate the accomplice. 527 U.S. at 134 n. 5, 119 S.Ct. 1887. The court in Lilly thus cast the holding most relevant to Fulcher’s case as follows: “The decisive fact, which we make explicit today, is that accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” 527 U.S. at 134, 119 S.Ct. 1887 (emphasis added). We held in Hill v. Hofbauer, 337 F.3d at 717, that Lilly did not announce a “new rule” of criminal procedure, and thus could apply to cases on collateral review without regard to § 2254(d)(1). See Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that in habeas cases, a subsequently decided case does not present new law if it is “dictated by precedent existing at the time the defendant’s conviction became final”). In other words, we held that what was clearly established by Lilly was, in fact, clearly established before Lilly: “Douglas, Bruton, and Lee evidence that the Supreme Court had clearly established the principle that a co-defendant’s custodial confessions are unreliable and not within a ‘firmly rooted’ hearsay exception prior to Lilly.” Hill, 337 F.3d at 717. Because Douglas (1965), Bruton (1968), and Lee (1986) all pre-date the 1996 conclusion of Fulcher’s direct appeal, the principle was clearly established by that point as well. Kentucky disagrees, arguing on the basis of Neuman v. Rivers, 125 F.3d 315 (6th Cir.1997), and Gilliam v. Mitchell, 179 F.3d 990 (6th" }, { "docid": "19191413", "title": "", "text": "The question, however, is not whether the testimony could be introduced at trial post-Craioford, but whether it was admissible under clearly-established Supreme Court precedent at the time the petitioner’s conviction became final in 2002, which was some two years prior to the Court’s decision in Crawford. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). (“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”) Prior to Crawford, a hearsay statement was considered admissible for purposes of the Confrontation Clause if the statement bore “adequate ‘indicia of reliability,’ ” which could be inferred if the evidence fell “within a firmly rooted hearsay exception.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In 1999, a plurality of the Supreme Court held that “accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (footnote omitted). In doing so, the Court said: “It is clear that our cases consistently have viewed an accomplice’s statements that shift or spread the blame to a criminal defendant as falling outside the realm of those ‘hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add little to [the statements’] reliability.’ ” Id. at 133, 119 S.Ct. 1887 (alteration in original) (quoting White v. Illinois, 502 U.S. 346, 357, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)); see also Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (“that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts”). The district court rejected the Ohio Court of Appeals decision that Quarterman’s statements had particularized guarantees of trustworthiness, correctly noting that the state court’s conclusion could not be reconciled with Lilly, 527 U.S. at 137-40," }, { "docid": "14524008", "title": "", "text": "reliability” to admit them against an accused when: (1) “the evidence falls within a firmly rooted hearsay exception,” or (2) contains “particularized guarantees of trustworthiness.” Id. at 66, 100 S.Ct. 2531. The Supreme Court applied the Roberts framework to accomplice confessions in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), and a plurality of the Court found that “accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” Id. at 134, 119 S.Ct. 1887. Lilly noted that the admission of hearsay under this exception was “of quite recent vintage” and that the category “encompasses statements that are inherently unreliable,” namely, cases “in which the government seeks to introduce a confession by an accomplice which incriminates a criminal defendant.” Id. at 131, 130, 119 S.Ct. 1887 (internal quotations omitted). The court held that such statements “function similarly to those used in the ancient ex parte system,” and pointed to a line of authority holding that accomplice confessions are untrustworthy. Id. at 131, 119 S.Ct. 1887; see also Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (such statements are “inevitably suspect”). Thus, the Court held, “[i]t is clear that our cases consistently have viewed an accomplice's statements that shift or spread the blame to a criminal defendant as falling outside the realm of those ‘hearsay exeeption[s] [that are] so trustworthy that adversarial testing can be expected to add little to[the statements’] reliability.’ ” Id. at 133, 88 S.Ct. 1620(quoting White v. Illinois, 502 U.S. 346, 357, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)). Hill’s November 13 statement was admitted against Forn under the “against penal interest” exception, and the facts of this case are therefore materially indistinguishable from Lilly in this regard. Thus, the California courts’ reliance on the “against penal interest” exception in finding that the admission of Hill’s statement did not violate Forn’s rights under the Confrontation Clause was contrary to clearly established federal law. However, the admission of" }, { "docid": "14524009", "title": "", "text": "authority holding that accomplice confessions are untrustworthy. Id. at 131, 119 S.Ct. 1887; see also Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (such statements are “inevitably suspect”). Thus, the Court held, “[i]t is clear that our cases consistently have viewed an accomplice's statements that shift or spread the blame to a criminal defendant as falling outside the realm of those ‘hearsay exeeption[s] [that are] so trustworthy that adversarial testing can be expected to add little to[the statements’] reliability.’ ” Id. at 133, 88 S.Ct. 1620(quoting White v. Illinois, 502 U.S. 346, 357, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)). Hill’s November 13 statement was admitted against Forn under the “against penal interest” exception, and the facts of this case are therefore materially indistinguishable from Lilly in this regard. Thus, the California courts’ reliance on the “against penal interest” exception in finding that the admission of Hill’s statement did not violate Forn’s rights under the Confrontation Clause was contrary to clearly established federal law. However, the admission of Hill’s statement may still satisfy the Confrontation Clause if it contains “particularized guarantees of trustworthiness” such that the statement may be considered inherently reliable, even if it does not fall within a firmly rooted exception to the hearsay rule. Roberts, 448 U.S. at 66, 100 S.Ct. 2531. However, the nature of Hill’s statements and the circumstances under which they were made make clear that the November 13 statement to police did not possess such guarantees of trustworthiness that adversarial testing would have been of little value. To the contrary, close examination of the statement shows that cross-examination would have been essential. The Lilly plurality held that guarantees of trustworthiness were “highly unlikely” to exist for accomplice confessions that inculpate a defendant “when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice — that is, when the government is involved in the statements’ production, and when the statements describe past events and have not been subject to adversarial testing.” Lilly, 527 U.S. at 137, 119 S.Ct. 1887." }, { "docid": "8068928", "title": "", "text": "statement unless he believed it to be true. Cal. Evid.Code § 1230. . The Sixth Amendment's Confrontation Clause was made applicable to the states through the Due Process Clause of the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 403-05, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). . The Court explained that where evidence does not fall within a firmly rooted exception to the hearsay rule, a presumption arises that the evidence should be excluded; in such cases, \"the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id. . In dissent, four Justices faced head-on the issue of whether the declaration against penal interest exception is a firmly rooted one. They concluded that the answer was \"yes”: \"The hearsay exception for declarations against interest is firmly established....” Id. at 551, 106 S.Ct. 2056 (Blackmun, J., dissenting, joined by Burger, C.J., Powell, J., and Relinquish J.). . This statement in Williamson left the Circuits in flux. In fact, until the Court’s decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion), the circuits were in discord on whether declarations against penal interest were a firmly rooted exception to the hearsay rule. Compare Neuman v. Rivers, 125 F.3d 315, 319-320 (6th Cir.1997) (concluding that penal interest exception is firmly rooted), United States v. Barone, 114 F.3d 1284, 1300-02 (1st Cir.1997) (same), and United States v. York, 933 F.2d 1343, 1363-64 & n. 5 (7th Cir.1991) (same), with Earnest v. Dorsey, 87 F.3d 1123, 1131 n. 6 (10th Cir.1996) (distinguishing an earlier opinion holding that penal interest exception is firmly rooted as inconsis tent with Lee, but ultimately avoiding the issue). Indeed, the Second Circuit was internally incoherent. Compare United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir.1983) (concluding that penal interest exception is firmly rooted), with United States v. Bakhtiar, 994 F.2d 970, 978 (2d Cir.1993) (declining to reaffirm court's earlier holding in Katsougrakis that the penal interest exception is firmly rooted). The Fifth Circuit, too, seemed equivocal. Compare United States v. Flores, 985 F.2d 770, 775" }, { "docid": "5797506", "title": "", "text": "not inconsistent with this opinion. DUGGAN, District Judge, concurring. Although I concur in Judge Ryan’s opinion, I write, separately to address the statement by the dissent that this Court, affirming “the ruling of District Judge Duggan,” has “specifically upheld the introduction of such evidence without a further reliability analysis in exactly the situation faced by McCleskey, namely, when the prosecution seeks to admit a statement against a declarant’s penal interest that inculpates the defendant,” citing Neuman v. Rivers, 125 F.3d 315 (6th Cir.1997). In Neuman, I ruled, and this Court affirmed, that the trial judge had properly admitted, at the request of the government, the out-of-court statements of the defendant’s then “unavailable” father under Federal Rule of Evidence 804(b)(3). However, I disagree with the dissent that the father’s out-of-court statements in Neuman inculpated the defendant. As Judge Boggs noted in Neuman, “[t]he trial court admitted testimony ... that [the father] had confessed to having oral sex with the complainant, and to firing a gun into the air.” Neuman, 125 F.3d at 319. Such statements only inculpated the father, making no mention whatsoever of the defendant. That fact, in my view, distinguishes Neuman from this case, in which the declarant’s statements clearly inculpated McCleskey. Furthermore, Judge Boggs is correct that in my opinion in Neuman I stated that the father’s statements were “against [his] penal interests, a firmly rooted hearsay exception,” citing Rule 804(b)(3). I did not, however, rule that an out-of-court statement by a declarant that directly inculpates the defendant, such as in this case, is admissible as a “firmly rooted hearsay exception.” Moreover, this Court’s decision in Neu-man was issued on February 16,1996. On June 10, 1999, the United States Supreme Court rendered its decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), in which four justices expressly stated: The decisive fact, which we make explicit today, is that accomplice’s confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence. Id. at 134, 119 S.Ct." }, { "docid": "5290403", "title": "", "text": "1887, 144 L.Ed.2d 117 (1999). In Ohio v. Roberts, the Court held that hearsay evidence could be admitted at trial without running afoul of the defendant’s right to confront his accuser when (1) the declarant is unavailable and (2) the statement is either admitted pursuant to “a firmly-rooted hearsay exception” or has “particularized guarantees of trustworthiness.” Ohio, 448 U.S. at 66, 100 S.Ct. 2531. We have noted that this court has never decided whether a statement against penal interest under Fed.R.Evid. 804(b)(3) qualifies as a firmly-rooted hearsay exception, Latine v. Mann, 25 F.3d 1162, 1166 (2d Cir.1994), as the district court here correctly pointed out. United States v. Petrillo, 60 F.Supp.2d at 218. However, a plurality of the Supreme Court in Lilly held that, under circumstances somewhat similar to those of the present case, “accomplices’ confessions that inculpate a criminal defendant are not within a firmly-rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” 527 U.S. at 134, 119 S.Ct. 1887. We note that Lilly does not decide the issue before us in the present case — the admissibility of plea allocutions where the accomplices’ statements were redacted so that they did not inculpate the defendant. In any event, after consideration of all the relevant facts and circumstances, we agree with the district court that the allocutions were accompanied by such “particularized guarantees of trustworthiness” that cross-examination would have added little to an evaluation of their reliability. United States v. Matthews, 20 F.3d 538, 545 (2d Cir.1994). Petrillo argues that the guilty plea allo-cutions were inherently untrustworthy. He points to the unequal bargaining power of the government and the co-defendants during plea negotiations. Furthermore, Petrillo suggests that Killeen and Bock had a substantial incentive to provide the Government with allocutions containing in-culpatory information given the fact that they simultaneously negotiated pleas to charges in the present indictment together with pleas to charges for securities fraud under a separate indictment. While the potential for coercion or misrepresentation during the negotiation over guilty plea allocutions may be present in theory, we conclude on this" }, { "docid": "1760064", "title": "", "text": "exception to the hearsay rule. Accordingly, respondent argues that the admission of these statements did not result in a violation of petitioner’s right of confrontation. At the outset, this court notes that it is not at all clear that the statements against penal interests exception is a “firmly rooted exception” to the hearsay rule, as applied in circumstances similar to the instant case. It is true that a number of circuits, including the Sixth Circuit, have held that the statements against interest exception codified by Rule 804(b)(3) is a firmly rooted exception. See Neuman v. Rivers, 125 F.3d 315, 319 (6th Cir.), cert. denied, 522 U.S. 1030, 118 S.Ct. 631, 139 L.Ed.2d 610 (1997); United States v. York, 933 F.2d 1343, 1362-64 (7th Cir.1991); United States v. Seeley, 892 F.2d 1, 2 (1st Cir.1989); United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir.1983). However, the plurality opinion in Lilly, which was decided June 10, 1999, explicitly noted: [t]he decisive fact ... is that accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence. Lilly, 527 U.S. at-, 119 S.Ct. at 1899. Fortunately, there is no need to resolve this issue in this case because the statements are admissible under the second prong of the test set forth in Roberts and reiterated in Lilly; that is, the statements bear “particularized guarantees of trustworthiness” that render them admissible under the totality of circumstances. See Latine, 25 F.3d at 1166; United States v. Garcia, 897 F.2d 1413, 1421 (7th Cir.1990). At the outset, it is clear that the portions of the statements in which Davis confesses to one of the murders constitute statements against penal interest. Such a confession clearly constitutes a statement which at the time of its making so far tended to subject the declarant to criminal liability “that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Fed.R.Evid. 804(b)(3). The question before the court is whether the inculpatory portions of" } ]

[ { "docid": "22600535", "title": "", "text": "of the agency. Cagle v. Califano, 638 F.2d 219 (10th Cir.1981). Nonetheless, we must review the record as a whole, and “the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). The AU appears to view the claimant’s heart, lung, and liver impairments as insignificant limitations on his ability to perform light work because, among other things, he found that the claimant’s testimony was “not wholly credible and ... somewhat probably exaggerated.” R. Vol. II at 17. We acknowledge that it is not our job to make an independent judgment as to the credibility of the claimant’s testimony regarding his subjective physical symptoms. “[T]he determination of credibility is left to the observations made by the Administrative Law Judge as the trier of fact.” Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir.1983). We note, however, that the AU gave no particular reasons for discounting the claimant’s credibility except to observe that his blackouts had occurred when no witnesses were present. Therefore, we feel free to view the AU’s conclusion with “a skeptical eye.” Id. at 414. Additionally, we do not question the AU’s inference that the claimant himself showed that he thought he was able to work by applying for rehabilitation training — training which was denied because of his impairments, using different criteria for disability than the SSA criteria. The AU uses the inference as to the claimant’s own belief, however, as support for the finding that the claimant’s respiratory impairments imposed only an insignificant environmental restriction on his ability to work. While the AU has the discretion to make the initial inference, we note that, logically, the inference does not dictate the conclusion that the claimant thought he could work at a full range of light activity rather than a limited range of light or sedentary activity. The AU attempted to buttress his finding of insignificant environmental restrictions by concluding that the claimant’s combined impairments had not prevented him from doing light and" } ]

[ { "docid": "4736978", "title": "", "text": "and/or medium exertional jobs existing in the national economy, based entirely on the vocational expert’s conclusions, is not founded on substantial evidence. Hypotheticals posed to a vocational expert must accurately portray the plaintiff’s individual physical and mental impairments. Podedworny, supra, 745 F.2d at 218. Here, the AU failed to include the plaintiff’s numerous hospital admissions, as well as the impairments which resulted from the plaintiff’s frequent diabetic shock episodes. Accordingly, because of the insufficient hypothetical and the corresponding deficient answer, we cannot regard the vocational expert’s testimony or the AU’s conclusions based on that testimony as substantial evidence. Moreover, it is not enough for an AU to base his sole decision on the conclusions of a vocational expert without furnishing any explanation concerning the relative weight and credibility of the evidence before him. Dobrowolsky, supra, 606 F.2d at 409. The AU never explained why he rejected the testimony of the plaintiff regarding his subjective symptomology and ability to perform substantial gainful activity, nor did he explicitly state what medical evidence he was relying on to support his conclusion that the plaintiff was not dis abled. Although we cannot second guess the AU’s reasoning, remand is unnecessary when the record provides substantial and uncontradicted evidence of disability and a remand for further evidentiary proceedings would serve no useful purpose. Podedworny, supra, 745 F.2d at 213. The evidence presented before the AU warrants a finding that the plaintiff was totally disabled due to his diabetes and neurovascular disease. The overwhelming evidence in the record reveals that the plaintiff suffers from uncontrollable diabetes, resulting in frequent diabetic shock episodes and regular hospital admissions. In addition, the medical evidence indicates a general deterioration in the plaintiffs health as demonstrated by his recurrent gastritis, varicosities and diabetic ulcers. Section 423(d)(5) of the Social Security Act requires the Secretary to consider the plaintiffs subjective complaints of pain or other symptoms when such complaints are substantiated by medical findings demonstrating the existence of an impairment which could be expected to produce the alleged pain or symptoms. 42 U.S.C. 423(d)(5). If the intensity and persistence of pain is" }, { "docid": "9341920", "title": "", "text": "upon the second hypothetical question, the expert identified other jobs existing in the national economy that Taylor could perform. Accordingly, she could not be considered disabled. The Appeals Council declined Taylor’s request for review and Taylor sought review in district court. The court determined that substantial evidence in the record supported the AU’s credibility findings and conclusion that Taylor was not disabled. Accordingly, the court affirmed the denial of SSI. This appeal followed. Our review of a social security case is limited to a determination of whether the Secretary’s final decision is supported by substantial evidence. Hutsell v. Sullivan, 892 F.2d 747, 748-49 (8th Cir.1989). “[TJhis standard of review involves more than a mere search for evidence supporting the Secretary’s findings. We must examine all of the evidence on the record, and take into account whatever fairly detracts from its weight.” Delrosa v. Sullivan, 922 F.2d 480, 484 (8th Cir.1991) (cited cases omitted). I believe Taylor’s decisive argument is that the AU improperly determined she could perform jobs other than her past relevant work on the basis of incomplete hypotheticals posed to the vocational expert. Taylor argues that the third hypothetical more accurately reflected her capabilities than the second hypothetical, upon which the AU relied. The vocational expert opined that under the circumstances described in hypothetical two there were jobs Taylor could still perform, but under hypothetical three there were not. Hypothetical three contained more details about Taylor’s complaints. The main difference between the two hypotheticals, however, concerned the effect the described impairments would have on Taylor’s ability to work. “The law is clear that ‘hypothetical questions posed to vocational experts ... should precisely set out the claimant’s particular physical and mental impairments.’ If the question is inadequate, the response to it is not substantial evidence sufficient to uphold the AU’s decision.” Greene v. Sullivan, 923 F.2d 99, 101 (8th Cir.1991) (quoted case omitted). The AU’s reliance on hypothetical two apparently was tied to his evaluation of Taylor’s allegations of pain. Immediately after discrediting the severity of the pain alleged, the AU stated “[t]he greater weight of the evidence establishes" }, { "docid": "22869200", "title": "", "text": "are different ‘skills’ used in cleaning Navy ships and working as a civilian janitor.” Appellant’s Br. at 8. He states that he used a mop, a broom, and a can of paint in the Navy, but that these activities required no “technical knowledge.” Id.; Appellant’s App. Vol. II at 77. Claimant, fails, however, to specifically explain why this experience would not transfer to like work activities in the civilian community. We therefore determine this argument to be sophistic and without merit. Claimant argues that the AU did not adequately consider his subjective complaints of disabling pain. The framework for the proper analysis of Claimant’s evidence of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir.1987). We must consider (1) whether Claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a “loose nexus” between the proven impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether, considering all the evidence, both objective and. subjective, Claimant’s pain is in fact disabling. Id. at 168-64. In order to find Claimant's alleged pain to be disabling, the “ ‘pain must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment.’ ” Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir.1983)). The AU considered Claimant’s medical evidence, his responses to questions regarding his daily activities, and his appearance and demean- or at the hearing. See, e.g., Jordan v. Heckler, 835 F.2d 1314, 1315-16 (10th Cir. 1987) (AU asked sufficient questions to afford claimant an opportunity to convince factfinder that claimant suffered disabling pain). As previously noted, there is a discrepancy between Claimant’s recitation of his daily routine and activities as set forth on his application and as set forth in his testimony. “Credibility is the province of the AU.” Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495, 1499 (10th Cir.1992). There is no medical evidence in the record to support Claimant’s allegations of disabling pain. Claimant’s testimony alone cannot establish" }, { "docid": "1168564", "title": "", "text": "AU explicitly considered Brown’s allegations of pain. Although Brown contends that his own credibility should be unquestioned, the Secretary is entitled to examine the medical record and evaluate a claimant’s credibility in determining whether the claimant suffers from disabling pain. Dumas, 712 F.2d at 1553. Moreover, a claimant’s subjective complaint of pain is by itself insufficient to establish disability. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529; Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir.1985). In the instant case, the Secretary concluded that Brown’s conflicting statements raised a serious question as to his credibility. In any event, there has been no authority presented to us which would justify reversing this case and remanding it to the AU for further proceedings simply because some questions by the AU were, perhaps, objectionable in form. See Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir.1985), where the Eighth Circuit affirmed a district court’s affirmance of a Secretary’s denial of benefits and, in so doing, rejected the claim that an AU’s hypothetical questions of a vocational expert were improper because they did not set forth all of the claimant’s alleged disabilities. See also Dumas, 712 F.2d at 1553-54 for a discussion of the role of vocational experts. Our review of the record leads us to conclude that the decision of the Secretary is supported by substantial evidence and that such is not in anywise undermined by the fact that the AU may have asked some hypothetical questions of the vocational expert which did not fully itemize all of the disabilities claimed by Brown. The district court carefully reviewed the entire administrative record and in a detailed seventeen-page opinion concluded that the Secretary’s decision was supported by substantial evidence. We are in accord with the district court’s handling of the matter. Judgment affirmed. . The Social Security Act provides that federal courts may review the \"final decision\" of the Secretary. 42 U.S.C. § 405(g). Pursuant to the Secretary’s rulemaking authority under 42 U.S.C. § 405(a), the Appeals Council has become the final decision-making body. See 20 C.F.R. § 404.900 (1985). In the instant case," }, { "docid": "2406429", "title": "", "text": "not give enough credence to her subjective complaints. Plaintiff’s testimony, sup ported in part by friends, suggests she is virtually an invalid. Obviously, the ALJ gave more weight to the medical record than to plaintiffs testimony. Certainly an AU may assess credibility and disbelieve a claimant’s subjective complaints, especially if there are inconsistencies. Underwood v. Bowen, 807 F.2d 141, 143 (8th Cir.1986); Tucker v. Heckler, 776 F.2d 793, 796 (8th Cir.1985). No one, including the AU, disputes that plaintiff has pain. She suffers from chronic myofascitis which is painful. The question is “whether she is fully credible when she claims that her back hurts so much that it prevents her from engaging in her prior work.” Baker v. Secretary of Health and Human Services, 955 F.2d 552, 555 (8th Cir.1992). The AU stated the question in similar language and then set out reasons for his evaluation of plaintiffs testimony. He detailed his findings as to subjective symptoms of pain as set out on pages 14 and 15 of the Record of Proceedings applying the criteria set out in Polaski v. Heckler, 751 F.2d 943 (8th Cir.1984). We find the AU examined plaintiffs testimony and evidence and set out reasons for discrediting plaintiffs testimony as to disabling pain. His judgment should not be disturbed. Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.1992). II. Plaintiffs next assertion of error is that the District Judge should have remanded the case for testimony by a vocational expert. Plaintiff argues that the AU should not have applied Medical-Vocational Guidelines because she has established non-exertional impairments. Jones v. Bowen, 841 F.2d 849, 850 (8th Cir.1988). While we have adhered to the rule that Medical-Vocational Guidelines should not be applied in cases where non-exertional impairments have been established, we also have determined that “if non-exertional impairment does not diminish exertional capacity, a vocational expert need not be called. Jones v. Bowen at 850; Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985). For a more elaborate examination of the rule, see Thompson v. Bowen, 850 F.2d 346, 349 (8th Cir.1988). Here the ALJ found, and we" }, { "docid": "15849425", "title": "", "text": "grand mal seizure could complicate the convalescent period. Plaintiff testified that sitting caused him pain and stretching would be necessary every 30 minutes to a couple of hours. Plaintiff has fallen because of his right leg being weak from pain. The AU found claimant’s testimony on the severity of his pain to be not credible. The AU made his conclusion upon three factors: (1) no appearance of severe pain or distress at the hearing: (2) ability to play tennis in June of 1981; and (3) Dr. Stock-well’s testimony that plaintiff was not totally disabled physically. There must be a basis in the record for the AU to disbelieve a witness, and the AU must make specific findings and state reasons for disbelieving plaintiff’s subjective testimony. See Cole v. Heckler, 616 F.Supp. 871, 874 (D.Kan.1984); Claassen v. Heckler, 600 F.Supp. at 1511. Subjective complaints of pain may not be ignored only because, no objective evidence exists to support them. Byron, 742 F.2d at 1235. A claimant’s subjective complaint of pain is by itself insufficient to establish disability. Brown v. Bowen, 801 F.2d 361, 363 (10th Cir.1986). “[Subjective pain need not be shown to have an objective physical origin to be disabling.” Turner, 754 F.2d at 330. Where claimant’s testimony as to pain is reasonably supported by medical evidence, the AU may not discount claimant’s pain without contrary medical evidence. Green v. Schweiker, 749 F.2d 1066, 1068 (3d Cir.1984); Hammerstone v. Heckler, 635 F.Supp. 1089, 1093 (E.D.Pa.1986). The AU’s observations at the hearing constitute relevant, material and admissible evidence. Extensive reliance on observations is discouraged, as one court explained: [W]e cannot allow the dismissal of a claim for pain solely on the AU’s observations at the hearing. This procedure amounts to the infamous and thoroughly discredited “sit and squirm” test. We do not imply that there was no evidence in the record from which the AU could not draw the inference for a lack of pain. However, the AU must cite some other evidence for denying a claim for pain in addition to personal observation. Weaver v. Secretary of Health and Human" }, { "docid": "3951866", "title": "", "text": "his symptoms.” Finally, the claimant argues that the hypothetical question posed to the vocational expert was flawed because the question failed to set forth all of his impairments. We do not agree. This court has often held that testimony elicited by hypothetical questions that do not relate with precision to all of a claimant’s impairments cannot constitute substantial evidence to support the Secretary’s decision. See, e.g., Ekeland v. Bowen, 899 F.2d 719, 722 (8th Cir.1990). The hypothetical question, however, need only include those impairments accepted by the AU as true. Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir.1990). The AU’s hypothetical question to the vocational expert included the facts that claimant could not lift more than ten pounds, could walk or stand only for short periods of time, and could not do work which was more than low stress in nature. This question included all of Rappoport’s impairments that were supported by substantial evidence. The additional impairments posited by claimant, including allegations of subjective complaints of pain, were discredited by the AU, and we have concluded that the AU’s credibility determinations are supported by substantial evidence on the record as a whole. In response to the hypothetical question, the vocational expert opined that there were over 3,000 jobs in the economy which claimant would be able to perform. The vocational expert then noted as significant the fact that claimant left his last job as an envelope stuffer after two days because of chest pain. The expert stated that if claimant was unable to this job, which was the type of sedentary low stress work within claimant’s capabilities, then there were no jobs in the economy that claimant could perform. Notwithstanding this testimony, the district court ruled it was clear that the AU did not accept claimant’s reasons for leaving the envelope stuffing job. The court held that the AU’s hypothetical question, which assumed that claimant had a residual functional capacity which allowed him to perform sedentary jobs with restrictions, was supported by substantial evidence in the record as a whole. Based on this finding, the district court held that" }, { "docid": "3951865", "title": "", "text": "subjective complaints of pain were not credible given the inconsistencies in the evidence. Based on the foregoing we conclude that the AU properly considered the Polaski factors in finding the claimant’s complaints of pain not credible. We also reject Rappoport’s argument that the AU failed to consider testimony of Helen Rappoport, claimant’s wife, as required by Smith v. Heckler, 735 F.2d 312, 317 (8th Cir.1984). The AU noted that in reaching his decision he conducted “a careful and thorough evaluation of the entire record in this matter, including the testimony received at the hearing.” Moreover, Helen Rappoport's testimony regarding claimant’s limitations since his heart attack and his visits to the hospital is not in dispute. Mrs. Rappoport’s testimony that she believes her husband when he complains of chest pain goes to Rappoport’s credibility and is within the province of the AU to determine. See Andrews v. Schweiker, 680 F.2d 559, 561 (8th Cir.1982). Although Mrs. Rappoport testified that she agreed with her husband, she also reported to Dr. Tolins that she felt her husband “maximizes his symptoms.” Finally, the claimant argues that the hypothetical question posed to the vocational expert was flawed because the question failed to set forth all of his impairments. We do not agree. This court has often held that testimony elicited by hypothetical questions that do not relate with precision to all of a claimant’s impairments cannot constitute substantial evidence to support the Secretary’s decision. See, e.g., Ekeland v. Bowen, 899 F.2d 719, 722 (8th Cir.1990). The hypothetical question, however, need only include those impairments accepted by the AU as true. Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir.1990). The AU’s hypothetical question to the vocational expert included the facts that claimant could not lift more than ten pounds, could walk or stand only for short periods of time, and could not do work which was more than low stress in nature. This question included all of Rappoport’s impairments that were supported by substantial evidence. The additional impairments posited by claimant, including allegations of subjective complaints of pain, were discredited by the AU, and we" }, { "docid": "6422684", "title": "", "text": "expert, the AU found that Stout was still able to perform jobs found in significant numbers in the national economy and therefore was not entitled to disability benefits. The vocational expert’s opinion that Stout was not disabled was based on a hypothetical question posed by the AU which took into consideration Stout’s age, education, previous work experience, and residual functional capacity. On review, this court must determine whether substantial evidence in the record as a whole supports the Secretary’s denial of benefits. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir.1991). Stout argues substantial evidence does not support the decision because the AU and the vocational expert failed adequately to consider the severity of Stout’s headache condition and improperly determined he possessed transferable skills. The AU discounted Stout’s claims about disabling headache pain as not credible and refused to consider it in making the benefits determination. The AU did not mention Stout’s headache condition in his hypothetical question to the vocational expert. Had the AU accepted Stout’s evidence about the severity of his headaches and included it in the hypothetical question, the vocational expert testified her opinion Stout could perform alternative jobs may have been different. The evidence offered by Stout to support his claim of disabling headache pain included references to headaches in his medical records. However, no evidence indicated that Stout had ever sought medical treatment specifically for headaches or taken prescription medicine specifically to treat headaches alone. Rather, the record showed Stout was able to control his headache condition through the use of over-the-counter medication and prescription medication for his other ailments. If an impairment can be controlled by treatment or medication, it cannot be considered disabling. Warford v. Bowen, 875 F.2d 671, 678 (8th Cir.1989). Stout and his wife offered subjective testimony about the severity of the headaches. Subjective complaints of pain may be discounted, however, where the complaints are inconsistent with the record as a whole. See, e.g., Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir.1989); Long v. Bowen, 866 F.2d 1066, 1067 (8th Cir.1989); Benskin v. Bowen, 830 F.2d 878, 885 (8th Cir.1987)." }, { "docid": "20872017", "title": "", "text": "is not supported by substantial evidence, and the AU’s conclusion that Jeffery could perform her past relevant work was improper. Where the Secretary has erroneously found that a claimant can return to her prior work, remand for further proceedings is generally appropriate. See Gavin v. Heckler, 811 F.2d 1195, 1201 (8th Cir.1987). However, because the record overwhelmingly supports a finding of disability, a remand is not necessary. See Beeler v. Bowen, 833 F.2d 124, 127-28 (8th Cir.1987). As noted above, the vocational expert testified that if Jeffery’s descriptions of pain were credible, and could be “somewhat” relieved by rest, and over-the-counter medication, she would be unable to perform any of her past work or any jobs in the regional or national economy. Because the record supports a finding that Jeffery’s medication is not effective in relieving her pain, the record as a whole supports Jeffery’s claim of disability. . Jeffery also argues that the AU erred in concluding that she did not meet the listing for musculo-skeletal disabilities, and in ignoring uncontroverted medical evidence of a disabling psychological impairment. We have reviewed these claims and find them to be without merit. BOWMAN, Circuit Judge, dissenting. Because I believe that Jeffery’s allegation that the AU improperly evaluated her subjective complaints of disabling pain is without merit, I respectfully dissent. The questions for federal courts to consider in this kind of case are (1) whether the Secretary considered all of the evidence relevant to claimant’s complaints of pain, and (2) whether the evidence contradicted her account, so that the Secretary could discount her testimony for lack of credibility. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir.1987). In answering these questions, we are governed by the general principle that credibility findings in the first instance are for the AU. See Smith v. Heckler, 760 F.2d 184, 187 (8th Cir.1985). Under Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984), the AU must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, as well as to observations by third parties and treating and" }, { "docid": "23389068", "title": "", "text": "of objective medical support for Dr. Reynolds’ opinion and for Ward’s description of the severity of his condition and the physical limitations imposed thereby were clearly factors in the AU’s decision. The AU also noted that his own observation of Ward (i.e., that Ward had no apparent problem walking, sitting, standing, concentrating, remembering, or attending to his surroundings during the hearing) was a factor. However, the AU also discussed the existing objective medical evidence in detail. Clearly, inconsistencies existed among that evidence, the various physicians’ interpretations of that evidence, and Ward’s subjective complaints. Subjective complaints may be discounted where, as here, there are inconsistencies in the evidence as a whole. Id.; see also Conley v. Bowen, 781 F.2d 143, 146-47 (8th Cir.1986) (per curiam). Ward also challenges the validity of the vocational expert’s testimony, arguing that his responses to the hypothetical questions posed by the AU do not constitute substantial evidence because those questions failed to set out all of Ward's impairments and included assumptions not supported by the record. Tennant v. Schweiker, 682 F.2d 707, 711 (8th Cir.1982). Examination of the hearing transcript reveals that the AU actually posed a series of three hypothetical questions based upon the same description of Ward’s physical impairments, but varying the severity of the limitations imposed upon Ward’s physical capabilities. Contrary to Ward’s contention, the AU’s description of Ward’s physical impairments does not appear deficient. The AU included in his description each of Ward’s physical complaints and mentioned the pain Ward suffers. Two of the hypothetical questions explored the combined impact of Ward's physical impairments and the limitations Ward testified he experiences upon Ward’s employability. The remaining hypothetical set forth Ward’s physical limitations to the extent the AU found them to exist. Therefore, the hypothetical questions were appropriate in light of the AU’s credibility determinations discussed previously. Finally, Ward contends that the transcript of his administrative hearing was not sufficiently complete to ensure a fair evaluation upon judicial review of his claims. Examination of the thirty-two page transcript reveals that, on the average, between one and two times per page small portions of" }, { "docid": "23185141", "title": "", "text": "able to be a cashier, but could do the remaining jobs. After reviewing the medical evidence, Meredith’s testimony, and the answers of the vocational expert, the AU found that Meredith had a severe impairment, but did not have any impairment or any combination of impairments to allow her to come within the confines equivalent to a per se disabling condition. The AU also found that while Meredith could not perform her past work, she was functionally capable of performing the jobs referred to in the vocational expert’s response. The AU concluded that Meredith was not entitled to a period of disability or disability insurance benefits requested in her third application. The district court reversed the AU’s decision. The court decided that the AU did not give the proper consideration to Meredith’s complaints of pain, and that the AU’s hypothetical questions to the vocational expert were defective because they did not include any consideration of Meredith’s pain in assessing the work she could have performed. The trial court concluded that after reviewing the record in its totality, the AU’s decision was not supported by substantial evidence and reversed the decision, awarding disability benefits from January 1, 1983. II. In reviewing the decision of the AU in cases such as this one, the district court as well as the appellate court are obliged to review the entire record and all the evidence therein. However, after review we must accept the findings of the AU if supported by substantial evidence. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986) (per curiam). In so doing, we may not decide the facts anew, reweigh the evidence, or substitute our own judgment for that of the AU. See Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir.1984). Here, the district court found that the AU “effectively ignored the objective medical evidence of [Meredith’s] pain provided by Dr. Bossard and others.” We disagree with this conclusion, for the AU stated in his findings that Meredith’s “subjective complaints concerning the limitation of motion in her neck, as well as pain with motion, are considered credible in light of" }, { "docid": "8122893", "title": "", "text": "by his inability to stand or walk throughout the day, and the capacity for a full range of sedentary work. Based on the vocational expert’s testimony, the AU concluded Buckler could engage in alternative substantial gainful employment. The Appeals Council modified the AU’s finding that Buckler retained the residual functional capacity for a full range of sedentary work, finding instead that Buckler’s impairments limited him to sedentary work permitting a change of position and requiring no left foot controls, and that his hearing impairment limited him to work not involving excessive background noise. Even so, the Appeals Council concluded that Buckler’s capacity for a wide range of sedentary work had not been significantly compromised by his additional limitations, and affirmed the finding of no disability. The district court affirmed, and Buckler filed a timely appeal arguing, inter alia, that the AU erred in discrediting his complaints of pain and his hearing impairment, and in failing to incorporate all of Buckler’s impairments in the hypothetical. Judicial review of disability determinations is limited to assessing whether there is substantial evidence in the record as a whole to support the Secretary’s decision. 42 U.S.C. § 405(g) (Supp. Ill 1985). This review requires more than a search for the existence of substantial evidence supporting the Secretary’s decision, but rather must take into account evidence which fairly detracts from its weight. Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir.1987). In evaluating a claimant’s subjective allegations of pain, the AU must decide if the claimant’s complaints are consistent with his or her prior work record and the observations of third parties and examining physicians regarding the claimant’s daily activities and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted). The AU may disbelieve a claimant’s allegations of pain, but credibility determinations must be supported by substantial evidence. See Hardin v. Heckler, 795 F.2d 674, 676 (8th Cir.1986). Moreover, in making credibility determinations, the AU must set forth the inconsistencies in the record that lead him to reject the claimant’s complaints. See Douthit v. Bowen, 821 F.2d 508, 509 (8th Cir.1987)." }, { "docid": "3970456", "title": "", "text": "do not survive application of the Polas ki standards for evaluating pain. The AU also discounted the testimony of Miss Parson, as she lives with Rautio and has a financial interest in the case. He noted that Parson had only recently become acquainted with Rautio and was thus unable to contrast Rautio’s present to past behavior. Smith v. Heckler, 735 F.2d 312 (8th Cir.1984) directs consideration of testimony of family members but certainly does not mandate belief of such testimony as credible. The AU properly considered Miss Parson’s testimony. The AU found that Rautio had met his burden of proving that he was unable to return to his past work and therefore correctly shifted the burden of proof to the Secretary to show that the claimant can do some other work in the national economy. McMillian v. Schweiker, 697 F.2d 215, 220-21 (8th Cir.1983). Rautio challenges that the AU’s hypothetical question rejected facts which were supported by the record. Thus, Rautio argues that because the AU failed to include all of Rautio’s impairments in the final hypothetical question posed to the vocational expert, the expert’s response does not constitute substantial evidence. Although the hypothetical question “must precisely set out all of the claimant’s impairments,” O’Leary v. Schweiker, 710 F.2d 1334, 1343 (8th Cir.1983), the hypothetical question is sufficient if it sets forth the impairments which the AU accepts as true. Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir.1985); Baugus v. Secretary of HHS, 717 F.2d 443, 447 n. 5 (8th Cir.1983). Having concluded that the AU properly considered Rautio’s subjective complaints of pain, the hypothetical question was appropriate in light of the credibility determination made by the AU. See Ward v. Heckler, 786 F.2d 844, 848 (8th Cir.1986). In our opinion, substantial evidence in the record as a whole is inconsistent with Rautio’s allegations of constant, disabling pain. There was a sufficient basis on which to discount his subjective complaints, and once those complaints are discounted, there is substantial medical evidence in the record to support the Secretary’s conclusion that Rautio is not disabled. Therefore, because the evidence was" }, { "docid": "18882913", "title": "", "text": "vocational expert Ronald W. Morrell. Copeland contends that the questions posed by the first AU to the vocational expert should have considered his subjective complaints of pain and limited motion in his lower extremities and shoulders, and the residual functional incapacity noted by his physicians. Copeland cites Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984) as support for his contention that all questions presented by the AU to the vocational expert should have included consideration of Copeland’s subjective complaints. In Gallant, the questions posed by the AU to the vocational expert were incomplete because they excluded pain as a limitation, and because the AU had no clear or convincing reasons for rejecting Gallant’s claims of pain. Id. at 1456. The AU posed various hypotheticals to the vocational expert, the first of which assumed that the claimant has “... impairments which restrict him in the shoulders bilaterally, hips, knees, ankles, and feet, as described, and that he has significant pain immobilizing or has ‘disabling’ pain on even the most minimal motions of the dominant extremities....” Other hypotheticals posed by the AU assumed that the claimant has the capacity to do “light” work. It is clear that not all of the questions assumed all of the impairments the claimant was asserting. However, exclusion of some of a claimant’s subjective complaints in questions to a vocational expert is not improper if the Secretary makes specific findings justifying his decision not to believe the claimant’s testimony about claimed impairments such as pain. Martinez v. Heckler, 807 F.2d 771, 773-74 (9th Cir.1986). The AU did make a specific finding that Copeland’s claims that his pain precluded light work were not credible. The AU’s decision states: Clarifying questions to the consultative examiner do expand the record to the point that the interrogatories establish some degree of function and handling in the upper extremity, and when the claim ant would, to a certain degree, have a certain amount of discomfort. Consequently, the degree of discomfort must be assessed to determine the credibility of this feature. The claimant could only, according to his presentation in the hearing room," }, { "docid": "3068849", "title": "", "text": "alternate sitting and standing, walk up to a block and a half, and not lift more than five or ten pounds. Tennenbaum estimated that there are thousands of such jobs in San Diego. Drouin maintains that the Secretary erred in' failing to properly consider the medical evidence establishing a disability and in rejecting her complaints of pain as not credible. We find the Secretary erred in neither respect. The AU is charged with determining credibility of medical testimony and resolving ambiguities in the evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989). Where evidence exists to support more than one rational interpretation, the Court must defer to the decision of the ALJ. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984). In this case, while some of the evidence could be interpreted to support a finding that Drouin is disabled, more convincing evidence supports a conclusion that she is not disabled. While it is well documented that Drouin suffers from chronic health problems, the opinions of medical and other experts differ on how those problems restrict her ability to work. She was able to hold two previous jobs with a fair amount of success, and even if those particular jobs are, as she claims, too taxing for her, the vocational counselor testified that she is qualified for thousands of less strenuous jobs. Thus, we find substantial evidence to support the AU’s determination that Drouin is not disabled. We also find the AU correct in finding Drouin’s subjective complaints about severe pain not credible. As this court recently concluded, the standard set out in Cotton v. Bowen, 799 F.2d 1403 (9th Cir.1986), is the proper standard to use in evaluating pain in Social Security disability cases. Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir.1991) (en banc). The “Cotton standard,” while requiring the claimant to produce medical evidence of an underlying impairment reasonably likely to be the cause of the alleged pain, does not require the claimant to submit medical findings which support the severity of pain. Bunnell, 947 F.2d at 343. Thus, the AU may not discredit the claimant’s" }, { "docid": "2488098", "title": "", "text": "decision to the Appeals Council and was granted another hearing before a different AU. At that hearing, the AU considered considerable evidence on the plaintiff’s mental impairment in relation to his ability to work. The AU found that while plaintiff was impaired, he had sufficient residual capacity to perform certain sedentary jobs with a low stress level. The AU then ask hypothetical questions of a vocational specialist to determine the availability of jobs for a male individual 34 to 37 years of age, with a tenth grade education and past “unskilled,” “medium” level exertion as a sandblaster, and the residual functional capacity for “sedentary” exertion and specified work placement in a structured environment not requiring independent judgments and a good deal of supervision. (R. 19). Relying on the testimony of the vocational specialist that there was a significant number of such jobs in the national economy which such an individual could perform, the AU issued a decision dated August 31, 1987 again finding that plaintiff was not disabled. (R. 15). The use of such hypothetical questions in such a hearing is not improper and may be an effective means of examination. An AU may rely on the responses of vocational specialists to such hypothetical questions to make a determination that a claimant is not disabled even if the questions do not fully itemize all of the disabilities alleged by the claimant. Brown v. Bowen, 801 F.2d 361, 363 (10th Cir.1986). In reviewing the Secretary’s decision to deny disability benefits, this court determined that the Secretary had failed to meet his burden in showing there was a significant number of jobs in the national economy which plaintiff could perform. The court found that the AU properly evaluated all relevant evidence in making his determination that the pain plaintiff was suffering was not disabling. With regard to plaintiff’s mental impairment, however, the court found that the AU did not fully take into account the evidence relating to the plaintiff’s mental impairment, and that certain evidence was either misunderstood or misapplied. Specifically, the court found that the AU did not properly consider the" }, { "docid": "13985983", "title": "", "text": "Dr. Biller’s testimony that plaintiff “may be given to ... somatic concerns.” This statement, however, does not suggest plaintiff has a somatoform disorder as that condition is described in section 12.07. Given the lack of evidence in the record, the AU did not err by not evaluating plaintiffs condition under section 12.07. Plaintiff next argues the AU failed to correctly evaluate plaintiff’s testimony regarding his pain. The AU found that although plaintiff suffered some discomfort, his subjective testimony regarding pain and limitation was not fully credible. Subjective complaints of pain must be evaluated in light of plaintiff’s credibility and the medical evidence. Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir.1986); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir.1983). The AU reasonably concluded based on the medical evidence presented that plaintiff was capable of working despite his assertions to the contrary. We cannot say this finding was not supported by substantial evidence. Plaintiff finally contends the AU failed to adequately consider the combination of his exertional and nonexertional impairments in evaluating plaintiff’s ability to return to work. The AU properly relied on the testimony of a vocational expert that plaintiff had residual functional capacity for a limited range of light work and there were jobs he could perform. This testimony is substantial evidence supporting the AU’s conclusion that plaintiff was not disabled. The order of the district court is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument." }, { "docid": "8122894", "title": "", "text": "is substantial evidence in the record as a whole to support the Secretary’s decision. 42 U.S.C. § 405(g) (Supp. Ill 1985). This review requires more than a search for the existence of substantial evidence supporting the Secretary’s decision, but rather must take into account evidence which fairly detracts from its weight. Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir.1987). In evaluating a claimant’s subjective allegations of pain, the AU must decide if the claimant’s complaints are consistent with his or her prior work record and the observations of third parties and examining physicians regarding the claimant’s daily activities and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted). The AU may disbelieve a claimant’s allegations of pain, but credibility determinations must be supported by substantial evidence. See Hardin v. Heckler, 795 F.2d 674, 676 (8th Cir.1986). Moreover, in making credibility determinations, the AU must set forth the inconsistencies in the record that lead him to reject the claimant’s complaints. See Douthit v. Bowen, 821 F.2d 508, 509 (8th Cir.1987). In discrediting Buckler’s allegations of pain, the AU, as required by Polaski, identified specific pieces of contradictory or inconsistent evidence, such as Russell’s functional capacity report, the limited use of prescription medications, infrequent visits to the doctor, and Buckler’s testimony as to his daily activities which, although restricted, are consistent with his ability to do sedentary work. We find no error. Similarly, the AU considered in detail Buckler’s testimony regarding his hearing impairment and the audiologist’s report, noting that Buckler s hearing problem has been present for at least forty years, he had no observable problems answering questions posed to him, he responded thoroughly and appropriately, and he did not indicate he could not hear the proceedings. The AU concluded the hearing loss imposed some restriction, and incorporated this finding into the hypothetical posed to the vocational expert. We have reviewed the record and find it substantially supports the AU’s conclusion that Buckler’s hearing loss is only mildly restricting. Although both Buckler and his wife testified that his hearing had become progressively worse, the issue" }, { "docid": "22200592", "title": "", "text": "findings concerning the credibility of a witness and to weigh conflicting evidence, Rhodes v. Schweiker, 660 F.2d 722, 724 (9th Cir.1981), he cannot reach a conclusion first, and then attempt to justify it by ignoring competent evidence in the record that suggests an opposite result. Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir.1982). Viewing the record as a whole, it is clear that all doctors who examined claimant concur that claimant’s condition is a source of constant pain for him. Although claimant’s testimony of his persistent, disabling pain is corroborated by the medical reports of eleven treating physicians, the AU rejected this strong evidence in favor of insubstantial evidence — i.e., the report of non-treating, non-examining physician, combined with the AU’s own observance of claimant’s demeanor at the hearing. Therefore, the AU’s finding that Gallant’s allegations of severe pain do not preclude substantial gainful activity is not supported by substantial evidence. The testimony of the vocational expert in this case cannot constitute substantial evidence to support the AU’s findings. A vocational expert’s testimony in a disability benefits proceeding “is valuable only to the extent that it is supported by medical evidence.” Sample v. Schweiker, 694 F.2d 639, 643-44 (9th Cir.1982). The hypothetical question asked of the vocational expert in this case specifically excluded pain as a limitation to Gallant’s exertional capabilities. Because claimant’s allegations of persistent disabling pain are supported by the medical evidence in this case and the AU had no clear or convincing reasons for rejecting such claims, claimant’s pain should have formed a part of the AU’s question to the expert. “[A] hypothetical question should ‘set out all of the claimant’s impairments.’ ” Baugus v. Secretary of Health & Human Services, 717 F.2d 443, 447 (8th Cir.1983) quoting O’Leary v. Schweiker, 710 F.2d 1334, 1343 (8th Cir.1983). If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has a residual working capacity has no evidentiary value. The most appropriate way to insure the validity of the hypothetical question posed to the vocational expert is to base" } ]

[ { "docid": "22671284", "title": "", "text": "the car, and they found a machete and a second revolver hidden in the automobile. Respondent contends that the initial seizure of his pistol,, upon which rested the later search and seizure of other weapons and narcotics, was not justified by the informant’s tip to Sgt. Connolly. He claims that absent a more reliable informant, or some corroboration of the tip, the policeman’s actions were unreasonable under the standards set forth in Terry v. Ohio, supra. In Terry this Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id., at 22. The Fourth Amendment does not require a policeman who lacks the precise level of information necéssary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the' time. Id., at 21-22; see Gaines v. Craven, 448 F. 2d 1236 (CA9 1971); United States v. Unverzagt, 424 F. 2d 396 (CA8 1970). The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. “When an officer is justified in. believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” he may conduct a limited protective search for concealed weapons. 392 U. S., at 24. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally" } ]

[ { "docid": "23461332", "title": "", "text": "armed or otherwise a hazard to the detaining officers. The mere use or display of force in making a stop does not necessarily transform a stop into an arrest if the surrounding circumstances give rise to a justifiable fear for personal safety. United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). “To require an officer to risk his life in order to make an investigatory stop would run contrary to the intent of Terry v. Ohio.” United States v. Maslanka, 501 F.2d 208, 213 n. 10 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975) (citation omitted). See e.g., United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985) (police officers were “well within the permissible range in the context of suspects who are reported to be armed and dangerous” in approaching, with their guns drawn, a vehicle they had stopped); United States v. Serna-Barreto, 842 F.2d at 968 (officers’ drawing guns did not automatically escalate investigatory stop into an arrest where officers’ safety required such a measure). Cf. United States v. Novak, 870 F.2d 1345 (7th Cir.1989) (Terry stop in an airport became an arrest; one officer pointed her gun at suspect as six to nine officers stopped the two defendants, who were not believed to be armed or dangerous and were not in a car and offered no resistance). As we explained in Sema-Barreto: “Although we are troubled by the thought of allowing policemen to stop people at the point of a gun when probable cause to arrest is lacking, we are unwilling to hold that an investigative stop is never lawful when it can be effectuated safely only, in that manner. It is not nice to have a gun pointed at you by a policeman but it is worse to have a gun pointed at you by a criminal, so there is a complex tradeoff involved in any proposal to reduce (or increase) the permissible scope of investigatory stops. We need not decide" }, { "docid": "1330486", "title": "", "text": "v. Thompson, 558 F.2d 522, 524 (9th Cir.1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978). Accordingly, the purpose of the asserted “Terry stop”— to allow the officers to investigate without fear of flight or violence, see Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)—was not served by the intrusion imposed. No necessity, reason nor purpose is shown for stopping Steep-row in order to serve the arrest warrant on Johnson. We do not find the recently decided case of Greene persuasive as to the dissent’s contention that a mere “Terry stop” occurred. The dissent reasons that, in this case, as in Greene, 783 F.2d at 1367-68, such use of force does not constitute an arrest where the circumstances justify the agents’ fears for their personal safety. See also Coades, supra. While recognizing that the officers had no specific information that Steeprow was armed and dangerous, the dissent nevertheless declares that “sudden violence could reasonably be anticipated.” The dissent distinguishes Strickler and Ramos-Zaragosa on the basis that those cases “involved stops of suspected vehicles by police pointing guns from their adjacent cars.” The dissent suggests that Greene is the more vital authority and has supplanted Strickler and Ramos-Zaragosa. The ground for our holding in Greene was that the officers in that case had specific knowledge that the defendants were armed. See 783 F.2d at 1368. On this basis, the Court upheld the officers’ stop of defendants as a legitimate Terry stop. Id. In other words, in Greene, officers were confronted with circumstances justifying fears for personal safety — although not amounting to probable cause so as to justify an arrest — which justified the temporary restriction of defendant’s freedom of movement. See also United States v. Taylor, 716 F.2d 701, 708 (9th Cir.1983) (police knew defendant armed and dangerous); Coades, supra (police knew defendants armed and in flight from bank robbery attempt and gun fight). Here, there is no indication that the officers were confronted with circumstances such as those in Greene, Taylor, and Coades. Certainly the slamming of the door provided" }, { "docid": "8004728", "title": "", "text": "to our many decisions upholding stops that involve brief but complete restrictions of personal liberty and would defeat the purpose of the investigatory stop. In Strickler, we indicated that the force used may have been excessive under the circumstances. See 490 F.2d at 380. In United States v. Ramos-Zaragosa, we again found that an arrest had occurred, but emphasized that the agents had pointed their guns at the suspects “under circumstances not suggesting fears for their personal safety.” 516 F.2d at 144. Proscription of excessive force is merely the corollary to our holding that an “officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop.” United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978). Accord, United States v. Moore, 638 F.2d 1171, 1174 (9th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); United States v. Richards, 500 F.2d 1025, 1028 (9th Cir. 1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975). In such cases, the person stopped clearly is not free to go. See United States v. Moore, 638 F.2d at 1174. In Beck, we acknowledged that “a suspicious individual may be briefly stopped and detained for the purposes of limited inquiry and weapons frisk, ... or ‘to maintain the status quo momentarily while obtaining more information’ .... ” 598 F.2d at 500 (emphasis added) (quoting Adams v. Williams, 407 U.S. at 146, 92 S.Ct. at 1923; also citing Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). We observed that the officers had followed the suspects for several days, essentially on a hunch, and had stopped them despite having failed to find any evidence of wrongdoing. 598 F.2d at 502. The stop was designed not to freeze the status quo, but to yield evidence of wrongdoing, resembling the detention for custodial interrogation held to be an arrest in Dunaway v. New" }, { "docid": "1330484", "title": "", "text": "seven to ten police officers, one of whom aimed his gun at her nose, told her to freeze, and detained her for at least five and perhaps fifteen minutes. The restriction of her liberty of movement was complete upon this encirclement by officers who gave her orders at gunpoint. See Kraus, 793 F.2d at 1108-09 (encirclement of defendants by officers with guns drawn; spotlight); United States v. Coades, 549 F.2d 1303, 1305 (9th Cir.1977) (ordering defendant to stop and prostrate self at gunpoint constituted arrest); Ramos-Zaragosa, supra at 144 (holding defendants at gunpoint); Strickler, 490 F.2d at 380 (surrounding defendant in car with police cruisers, holding at gunpoint) (citing Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)). Steeprow was not free to “choose between terminating or continuing the encounter.” See United States v. Johnson, 626 F.2d 753, 755 (9th Cir.1980), aff'd, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). We acknowledge previous holdings that such a complete restriction, if brief and not excessive under the circumstances, may constitute a valid “Terry stop” and not an arrest. See, e.g., United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983); Patterson, 648 F.2d at 632-34. But such is not the case here given the excessive nature of the restriction under the circumstances. Steeprow was not armed, but the officers made no attempt to discern if she was armed, thereby strongly suggesting that they had not the slightest indication that she was armed. Compare United States v. Greene, 783 F.2d 1364, 1368 (9th Cir.) (police knew defendants armed, frisked them), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). Nothing in the record suggests that the display of force was necessary to ensure her compliance with a request to stop. Compare Patterson, 648 F.2d at 633-34 (defendant in driver’s seat with motor running at scene of arrest of other defendant); Bautista, 684 F.2d at 1289 (defendant kept pacing, turning head, “as if he was thinking about running”). See United States" }, { "docid": "23614201", "title": "", "text": "the officers had a particularized and objective basis for making the investigatory stop of Alvarez’ vehicle. B. Validity of the Manner of the Investigatory Stop After stopping the vehicle, one of the police officers immediately ordered Alvarez not to move and to keep his hands in view. The officers then approached the vehicle with their weapons drawn and ordered Alvarez to step out of the vehicle. Appellant argues that the investigatory stop escalated to a full arrest when he was forced to exit his car at gunpoint necessitating a showing of probable cause. The Supreme Court has permitted limited intrusions on a suspect’s liberty during a Terry stop to protect the officer’s safety; a police officer may take reasonable measures to neutralize the risk of physical harm and to determine whether the person in question is armed. United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985); Terry, 392 U.S. at 24, 88 S.Ct. at 1881-82. In this circuit it has been held that “[t]he use of force does not convert the [investigatory] stop into an arrest if it occurs under circumstances justifying fears of personal safety.” Buffington, 815 F.2d at 1300 (Terry stop where police officers forced suspects to exit car and lie down on pavement at gunpoint); accord United States v. Parr, 843 F.2d 1228 (9th Cir.1988) (briefly placing suspect in police car does not convert a Terry stop into an arrest requiring probable cause). See United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986) {Greene) (investigatory stop where officers instructed suspects to put their hands on the car and then drew their weapons); United States v. Taylor, 716 F.2d 701, 708 (9th Cir.1983) {Taylor) (investigatory stop where officers approached suspects with their weapons drawn after having been warned that the suspects were dangerous). In this case, the totality of the circumstances indicate that the police conducted an investigatory stop rather than an arrest without probable cause. The police, through their independent observations, verified the details of the anonymous" }, { "docid": "23614204", "title": "", "text": "States v. Strickler, 490 F.2d 378 (9th Cir.1974), does not require a different result. In that case, we held that an armed approach to a surrounded vehicle was an arrest. In Strickler, “it is clear that ... the police had no legitimate fear for their safety and only tenuous reasons to believe that the occupants of the car were involved in the drug transaction.” Taylor, 716 F.2d at 708-09. In the present case, the police officers had strong reason to believe that Alvarez was armed with explosives and legitimate reasons to fear for their safety. We hold that the manner of the stop did not convert the investigatory stop into an arrest. C. Validity of the Frisk The decision to frisk Alvarez for weapons was similarly justified. “Police are entitled to take steps to assure that the person stopped is not armed.” Greene, 783 F.2d at 1368. “The purpose of the Terry frisk is ‘to allow the officer to pursue his investigation without fear of violence.’ ” United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)). In this case, the corroborated details of the anonymous tip noted by the officers allowed them to form the reasonable suspicion that Alvarez was armed with explosives. Additionally, when the officers placed Alvarez’ arm behind his back they observed a large bulge underneath his jacket. The visible bulge was a significant factor in clueing in the officers to Alvarez’ possession of a gun. It was thus reasonable for the officers to take the precautionary step of a pat frisk to insure that Alvarez was not armed. We conclude that the officers acted properly in frisking Alvarez. D. Validity of the Search of the Vehicle The next question is whether the officers’ warrantless search of Alvarez’ automobile including the trunk was proper. Due to an automobile’s mobility, a search warrant does not need to be obtained prior to a search of the automobile. However, the search" }, { "docid": "23244956", "title": "", "text": "reason to believe suspect was armed with explosives) and United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.) (no arrest where police were tipped that defendants were armed and police frisked them), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986) with United States v. Robertson, 833 F.2d 777, 781-82 (9th Cir.1987) (surrounding suspect and pointing weapons at her amounted to an arrest where officers had no indication that suspect was armed). Indeed, the government cites no case in which we have found “reasonable measures” in a Terry-stop to include drawing weapons on a cooperative suspect, ordering him out of his vehicle and to lie prone on the street, and handcuffing him. Given the extensive limits placed on Del Vizo’s freedom and the lack of an investigatory justification for the degree of these restraints, we have little difficulty concluding that Del Vizo was arrested before the discovery of cocaine in the back of the van. Ill Having determined that Del Vizo was arrested before the discovery of cocaine in his van, we next consider whether there was probable cause to support that arrest. The district court found that the investigating officers possessed probable cause to arrest Del Vizo when they stopped Del Vizo’s van. We agree. An arrest must be supported by probable cause. See Whiteley v. Warden, 401 U.S. 560, 564-66, 91 S.Ct. 1031, 1034-36, 28 L.Ed.2d 306 (1971) (same probable-cause standard applies for arrest warrant or warrantless arrest). Probable cause exists when the police know “reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense.” Delgadillo-Velasquez, 856 F.2d at 1296; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (same). Courts look to the totality of the circumstances known to the officers prior to any search conducted incident to the arrest. United States v. Potter, 895 F.2d 1231, 1233-34 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 3247, 111 L.Ed.2d 757 (1990). When there has been communication among agents, probable cause can rest upon" }, { "docid": "1330488", "title": "", "text": "cause for belief that violence might erupt in the house. But, unlike in Greene, Taylor, and Coades, the record in the case at bench is bare of any indication that Steeprow was armed or dangerous. Underscoring this fact is the officers’ omission to engage in a patdown or frisk in order to search for weapons. The officers in Greene conducted such a frisk, manifesting their fears of physical danger. See 783 F.2d at 1367. See also Taylor, 716 F.2d at 708; Coades, 549 F.2d at 1305. B. Having held that the detention at gunpoint of Steeprow amounted to an arrest, the next question is whether probable cause existed for that arrest as required by the Fourth Amendment. We hold that probable cause for her arrest was absent. For all that was then known to the officers, Steeprow was an innocent visitor. Lacking from both the arrest warrant for Johnson and the search warrant for the premises was the slightest indication that Steeprow was involved in criminal activity. Her mere presence on the premises, without more, cannot support an arrest of her under these circumstances. Compare Michigan v. Summers, 452 U.S. 692, 701, 101 S.Ct. 2587, 2593, 69 L.Ed.2d 340 (1981) (warrant justifying search of defendant’s house justified detention of his person on premises), Greene, 783 F.2d at 1368 (pistol in defendants' motel room), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986), Taylor, supra (police knew defendants armed and dangerous), United States v. Patterson, 648 F.2d 625, 628 (9th Cir.1981) (defendant in car with engine running; officers knew gun under front seat), and Coades, supra (police knew defendants armed and in flight from bank robbery attempt and gun fight), with Strickler, 490 F.2d at 380 (mere proximity to a residence where cocaine was being delivered and participation in some ambiguous driving and observing activity) and Ramos-Zaragosa, 516 F.2d at 144 (conformity of vehicle with imprecise description of informant, where informant’s reliability not demonstrated, did not justify arrest). See also Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968) (talking to" }, { "docid": "1330485", "title": "", "text": "constitute a valid “Terry stop” and not an arrest. See, e.g., United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983); Patterson, 648 F.2d at 632-34. But such is not the case here given the excessive nature of the restriction under the circumstances. Steeprow was not armed, but the officers made no attempt to discern if she was armed, thereby strongly suggesting that they had not the slightest indication that she was armed. Compare United States v. Greene, 783 F.2d 1364, 1368 (9th Cir.) (police knew defendants armed, frisked them), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). Nothing in the record suggests that the display of force was necessary to ensure her compliance with a request to stop. Compare Patterson, 648 F.2d at 633-34 (defendant in driver’s seat with motor running at scene of arrest of other defendant); Bautista, 684 F.2d at 1289 (defendant kept pacing, turning head, “as if he was thinking about running”). See United States v. Thompson, 558 F.2d 522, 524 (9th Cir.1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978). Accordingly, the purpose of the asserted “Terry stop”— to allow the officers to investigate without fear of flight or violence, see Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)—was not served by the intrusion imposed. No necessity, reason nor purpose is shown for stopping Steep-row in order to serve the arrest warrant on Johnson. We do not find the recently decided case of Greene persuasive as to the dissent’s contention that a mere “Terry stop” occurred. The dissent reasons that, in this case, as in Greene, 783 F.2d at 1367-68, such use of force does not constitute an arrest where the circumstances justify the agents’ fears for their personal safety. See also Coades, supra. While recognizing that the officers had no specific information that Steeprow was armed and dangerous, the dissent nevertheless declares that “sudden violence could reasonably be anticipated.” The dissent distinguishes Strickler and Ramos-Zaragosa on the basis that" }, { "docid": "3984619", "title": "", "text": "testified that Maples told them that there were four black men in a red or burgundy Pontiac in front of her home with guns. An informant’s tip is sufficient to establish reasonable suspicion; it need not be based exclusively on an officer’s personal observations. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). When the police arrived at the scene, they observed a vehicle matching Maples’ description — a burgundy Pontiac with four black men in it — which started to leave upon their arrival. Given these circumstances, the officers were certainly justified in stopping the car. We next turn to the second inquiry and examine whether the officers’ actions escalated the purported investigative stop into an arrest. Looking at all the circumstances surrounding the seizure of Hard-nett, we do not find that the officers’ conduct was so intrusive as to constitute an arrest. We recognize that the officers’ show of force — approaching Hardnett’s car with their guns drawn and ordering the occupants out of the car at gunpoint — was highly intrusive and under some circumstances would certainly be tantamount to an arrest. However, the mere use or display of force in making a stop will not necessarily convert a stop into an arrest. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, — U.‘S.; 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986); United States v. White, 648 F.2d 29, 34 (D.C. Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 235 (1981). Where the display or use of arms is viewed as “reasonably necessary for the protection of the officers,” the courts have generally upheld investigative stops made at gunpoint. See White, 648 F.2d at 34-35, and cases cited therein; see also United States v. Danielson, 728 F.2d 1143, 1147 (8th Cir.), cert. denied, 469 U.S. 919, 105 S.Ct. 300, 83 L.Ed.2d 235 (1984). That is, if the surrounding circumstances give rise to a justifiable fear for personal safety, a seizure effectuated with weapons drawn may properly be considered an investigative stop. See Greene, 783 F.2d" }, { "docid": "23461331", "title": "", "text": "banc) (blocking car was proper where police concerned that suspect might seek to evade a vehicle stop by escaping at high speed, thereby risking danger to the police, unwary motorists or pedestrians), cert. denied, — U.S. -, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993); United States v. Jones, 759 F.2d 633, 638 (8th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 113, 88 L.Ed.2d 92 (1985) (blocking proper because suspect might flee upon approach of police with resulting danger to the public as well as to the officers). Tilmon complains that he was terrified when he saw that all the officers had drawn their weapons prior to his leaving the car, and he argues that the drawn weapons transformed the stop into an arrest. But it is not surprising that “[ijnvestigative detentions involving suspects in vehicles are fraught with danger to police officers.” Michigan v. Long, 463 U.S. at 1047, 103 S.Ct. at 3480. The officers here performed a “felony stop,” a form of detention employed when the person in a suspect vehicle is considered armed or otherwise a hazard to the detaining officers. The mere use or display of force in making a stop does not necessarily transform a stop into an arrest if the surrounding circumstances give rise to a justifiable fear for personal safety. United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). “To require an officer to risk his life in order to make an investigatory stop would run contrary to the intent of Terry v. Ohio.” United States v. Maslanka, 501 F.2d 208, 213 n. 10 (5th Cir.1974), cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975) (citation omitted). See e.g., United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985) (police officers were “well within the permissible range in the context of suspects who are reported to be armed and dangerous” in approaching, with their guns drawn, a vehicle they had stopped); United States v. Serna-Barreto, 842 F.2d at 968 (officers’ drawing" }, { "docid": "23049781", "title": "", "text": "initial police command that he put his hands up), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). See also United States v. Jones, 973 F.2d 928, 931 (D.C.Cir.1992) (action necessary to restrain fleeing suspect), cert. denied, 510 U.S. 1065, 114 S.Ct. 741, 126 L.Ed.2d 704 (1994); Bautista, 684 F.2d at 1289 (one officer watching two suspects, one of whom appears to be thinking about fleeing). . See, e.g., United States v. Thompson, 906 F.2d 1292, 1294 (8th Cir.) (informant’s tip indicating that men in car were going to rob bank and were carrying “three large caliber handguns”), cert. denied, 498 U.S. 989, 111 S.Ct. 530, 112 L.Ed.2d 540 (1990); Greene, 783 F.2d at 1368 (\"The informant told the police that she had seen a pistol in the motel room of the two men she had described.”) . See, e.g., Jacobs, 715 F.2d at 1346 (suspects closely match radio description of “possibly armed” group that had robbed a bank twenty minutes earlier); see also Alexander v. County of Los Angeles, 64 F.3d 1315, 1317 (9th Cir.1995) (officers stop suspects in the vicinity of an armed robbery in which shots had been fired forty-five minutes earlier). . See, e.g., United States v. Buffington, 815 F.2d 1292, 1295 (9th Cir.1987) (police stop suspects near bank after informant's tip that three men are planning to rob a bank, and police recognize one suspect who has a history of violent criminal behavior). . See, e.g., Greene, 783 F.2d at 1367-68 (officers have specific information that the suspects are armed, and one suspect fails to obey officer’s initial command to raise his hands). . In Del Vizo, we ultimately held that the police action, which was overly intrusive under the circumstances to be deemed a Terry stop, was lawful, because probable cause to make an arrest existed. . During his testimony, Lambert stated that \"various cars were being used in the robberies ... [and that the robbers] could be using anything.” . Lambert correctly notes that in Alexander, in vaguely similar circumstances, this court gave some weight to a policeman’s claim that" }, { "docid": "8004727", "title": "", "text": "In United States v. Strickler, we placed great weight on the fact that the defendant was not free to leave. 490 F.2d at 380. Strickler, like Oglesby, had been observed in an automobile near a home under surveillance in a drug investigation. Id. at 379. We concluded that the defendant was arrested at the outset of his encounter with the police because “[t]he restriction of Strickler’s ‘liberty of movement’ was complete when he was encircled by police and confronted with official orders made at gunpoint.” Id. at 380. Relying on Strickler, we held in United States v. Beck, 598 F.2d 497 (9th Cir. 1979), that an arrest occurred when nine agents stopped a taxi carrying three suspects, even though, as in the present case, the agents had not drawn their guns. Id. at 500-01. Oglesby contends that the Strickler line of cases forecloses any complete restriction of liberty, even for a short time, without probable cause. We disagree. Although our treatment of the issue has not been entirely free of ambiguity, Oglesby’s position is contrary to our many decisions upholding stops that involve brief but complete restrictions of personal liberty and would defeat the purpose of the investigatory stop. In Strickler, we indicated that the force used may have been excessive under the circumstances. See 490 F.2d at 380. In United States v. Ramos-Zaragosa, we again found that an arrest had occurred, but emphasized that the agents had pointed their guns at the suspects “under circumstances not suggesting fears for their personal safety.” 516 F.2d at 144. Proscription of excessive force is merely the corollary to our holding that an “officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop.” United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978). Accord, United States v. Moore, 638 F.2d 1171, 1174 (9th Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); United States v. Richards, 500" }, { "docid": "1330489", "title": "", "text": "cannot support an arrest of her under these circumstances. Compare Michigan v. Summers, 452 U.S. 692, 701, 101 S.Ct. 2587, 2593, 69 L.Ed.2d 340 (1981) (warrant justifying search of defendant’s house justified detention of his person on premises), Greene, 783 F.2d at 1368 (pistol in defendants' motel room), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986), Taylor, supra (police knew defendants armed and dangerous), United States v. Patterson, 648 F.2d 625, 628 (9th Cir.1981) (defendant in car with engine running; officers knew gun under front seat), and Coades, supra (police knew defendants armed and in flight from bank robbery attempt and gun fight), with Strickler, 490 F.2d at 380 (mere proximity to a residence where cocaine was being delivered and participation in some ambiguous driving and observing activity) and Ramos-Zaragosa, 516 F.2d at 144 (conformity of vehicle with imprecise description of informant, where informant’s reliability not demonstrated, did not justify arrest). See also Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968) (talking to a number of known narcotics addicts over a period of eight hours insufficient to establish probable cause to arrest); Kraus, 793 F.2d at 1109 (seeing rapidly departing car from parking lot after robber seen fleeing on foot into parking lot insufficient to establish probable cause for arrest of car owners). It is undisputed that the officers had probable cause to believe that criminal activity was afoot in the house. But where the standard for the seizure of a person is probable cause, that seizure must be supported by probable cause particularized with respect to that person. Ybarra v. Illinois, 444 U.S. 85, 93 & n. 4, 100 S.Ct. 338, 343 & n. 4, 62 L.Ed.2d 238 (1979) (warrant to search a place cannot be construed to authorize a search of every individual in that place). It is insufficient to point to the defendant’s mere proximity to others independently suspected of criminal activity. See Ybarra, 444 U.S. at 92, 100 S.Ct. at 343. Every person who walked onto the premises of Johnson’s house on October 16," }, { "docid": "23614203", "title": "", "text": "tip. After corroborating the details of the tip, including the suspect’s location, description and vehicle, the police officers had additional reason to credit the portion of the tip that indicated the suspect was carrying explosives. “Although approaching a suspect with dfawn weapons are extraordinary measures, such police procedures [are] justified ... as a reasonable means of neutralizing danger to police and innocent bystanders.” United States v. Taylor, 857 F.2d 210, 214 (5th Cir.1988); United States v. Serna-Barreto, 842 F.2d 965, 968 (7th Cir.1988) {Terry stop does not turn into an arrest as soon as an officer points his gun at the suspect); Taylor, 716 F.2d at 708. In Taylor, the officers had been warned that the suspects were dangerous and approached the suspects’ vehicle with weapons drawn. We held that “[w]hen the officers stopped [the suspects] to question them ... the officers were justified in drawing their weapons in self protection,” and the officers’ drawn weapons did not convert the Terry stop into an arrest. Taylor, 716 F.2d at 708-09. Contrary to appellee’s contentions, United States v. Strickler, 490 F.2d 378 (9th Cir.1974), does not require a different result. In that case, we held that an armed approach to a surrounded vehicle was an arrest. In Strickler, “it is clear that ... the police had no legitimate fear for their safety and only tenuous reasons to believe that the occupants of the car were involved in the drug transaction.” Taylor, 716 F.2d at 708-09. In the present case, the police officers had strong reason to believe that Alvarez was armed with explosives and legitimate reasons to fear for their safety. We hold that the manner of the stop did not convert the investigatory stop into an arrest. C. Validity of the Frisk The decision to frisk Alvarez for weapons was similarly justified. “Police are entitled to take steps to assure that the person stopped is not armed.” Greene, 783 F.2d at 1368. “The purpose of the Terry frisk is ‘to allow the officer to pursue his investigation without fear of violence.’ ” United States v. Bautista, 684 F.2d 1286, 1289" }, { "docid": "23614202", "title": "", "text": "not convert the [investigatory] stop into an arrest if it occurs under circumstances justifying fears of personal safety.” Buffington, 815 F.2d at 1300 (Terry stop where police officers forced suspects to exit car and lie down on pavement at gunpoint); accord United States v. Parr, 843 F.2d 1228 (9th Cir.1988) (briefly placing suspect in police car does not convert a Terry stop into an arrest requiring probable cause). See United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986) {Greene) (investigatory stop where officers instructed suspects to put their hands on the car and then drew their weapons); United States v. Taylor, 716 F.2d 701, 708 (9th Cir.1983) {Taylor) (investigatory stop where officers approached suspects with their weapons drawn after having been warned that the suspects were dangerous). In this case, the totality of the circumstances indicate that the police conducted an investigatory stop rather than an arrest without probable cause. The police, through their independent observations, verified the details of the anonymous tip. After corroborating the details of the tip, including the suspect’s location, description and vehicle, the police officers had additional reason to credit the portion of the tip that indicated the suspect was carrying explosives. “Although approaching a suspect with dfawn weapons are extraordinary measures, such police procedures [are] justified ... as a reasonable means of neutralizing danger to police and innocent bystanders.” United States v. Taylor, 857 F.2d 210, 214 (5th Cir.1988); United States v. Serna-Barreto, 842 F.2d 965, 968 (7th Cir.1988) {Terry stop does not turn into an arrest as soon as an officer points his gun at the suspect); Taylor, 716 F.2d at 708. In Taylor, the officers had been warned that the suspects were dangerous and approached the suspects’ vehicle with weapons drawn. We held that “[w]hen the officers stopped [the suspects] to question them ... the officers were justified in drawing their weapons in self protection,” and the officers’ drawn weapons did not convert the Terry stop into an arrest. Taylor, 716 F.2d at 708-09. Contrary to appellee’s contentions, United" }, { "docid": "1330487", "title": "", "text": "those cases “involved stops of suspected vehicles by police pointing guns from their adjacent cars.” The dissent suggests that Greene is the more vital authority and has supplanted Strickler and Ramos-Zaragosa. The ground for our holding in Greene was that the officers in that case had specific knowledge that the defendants were armed. See 783 F.2d at 1368. On this basis, the Court upheld the officers’ stop of defendants as a legitimate Terry stop. Id. In other words, in Greene, officers were confronted with circumstances justifying fears for personal safety — although not amounting to probable cause so as to justify an arrest — which justified the temporary restriction of defendant’s freedom of movement. See also United States v. Taylor, 716 F.2d 701, 708 (9th Cir.1983) (police knew defendant armed and dangerous); Coades, supra (police knew defendants armed and in flight from bank robbery attempt and gun fight). Here, there is no indication that the officers were confronted with circumstances such as those in Greene, Taylor, and Coades. Certainly the slamming of the door provided cause for belief that violence might erupt in the house. But, unlike in Greene, Taylor, and Coades, the record in the case at bench is bare of any indication that Steeprow was armed or dangerous. Underscoring this fact is the officers’ omission to engage in a patdown or frisk in order to search for weapons. The officers in Greene conducted such a frisk, manifesting their fears of physical danger. See 783 F.2d at 1367. See also Taylor, 716 F.2d at 708; Coades, 549 F.2d at 1305. B. Having held that the detention at gunpoint of Steeprow amounted to an arrest, the next question is whether probable cause existed for that arrest as required by the Fourth Amendment. We hold that probable cause for her arrest was absent. For all that was then known to the officers, Steeprow was an innocent visitor. Lacking from both the arrest warrant for Johnson and the search warrant for the premises was the slightest indication that Steeprow was involved in criminal activity. Her mere presence on the premises, without more," }, { "docid": "7780017", "title": "", "text": "and identified himself. The officer noticed that Alonso and Fiuza had mud on their pants and scratches on their arms. The officer asked Alonso and Fiuza for identification. Both produced Florida drivers’ licenses. The officer then told Alonso and Fiuza to walk over to the officer’s truck, and to lean against the truck so that the officer could .frisk for weapons. As the officer conducted the frisk, Fiuza dropped the key to room 257 into the bed of the truck. The officer detained Alonso and Fiuza until a back-up unit arrived. Alonso and Fiuza were then arrested. Alonso and Fiuza argue that because the officer approached them with his gun drawn, required them to walk over to his truck, and frisked them, the initial stop constituted an arrest without probable cause. They also argue that, even if the initial stop was no more than a Terry stop, the officer had no reasonable suspicion of criminal activity. Alonso and Fiuza argue that under either a probable cause or a reasonable suspicion standard, the evidence developed subsequent to the stop should have been suppressed at trial. We find nothing improper about the stop, frisk, and arrest of Alonso and Fiuza. The fact that the officer drew his gun and frisked Alonso and Fiuza for weapons does not necessarily elevate the stop into an arrest. Courts have held that an officer may draw his gun and conduct a frisk when justified as a reasonable precaution for protection and safety. See, e. g., United States v. Thompson, 558 F.2d 522 (9th Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978); United States v. Worthington, 544 F.2d 1275, 1280 n.3 (5th Cir. 1977), cert. denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977) (based upon experience with drug traffickers, agents reasonably feared death or serious injury when they stopped plane on dark, deserted airstrip). Under the circumstances here, drawing the gun was a reasonable safety precaution, and the stop, therefore, was valid under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), if the" }, { "docid": "3984620", "title": "", "text": "gunpoint — was highly intrusive and under some circumstances would certainly be tantamount to an arrest. However, the mere use or display of force in making a stop will not necessarily convert a stop into an arrest. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, — U.‘S.; 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986); United States v. White, 648 F.2d 29, 34 (D.C. Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 235 (1981). Where the display or use of arms is viewed as “reasonably necessary for the protection of the officers,” the courts have generally upheld investigative stops made at gunpoint. See White, 648 F.2d at 34-35, and cases cited therein; see also United States v. Danielson, 728 F.2d 1143, 1147 (8th Cir.), cert. denied, 469 U.S. 919, 105 S.Ct. 300, 83 L.Ed.2d 235 (1984). That is, if the surrounding circumstances give rise to a justifiable fear for personal safety, a seizure effectuated with weapons drawn may properly be considered an investigative stop. See Greene, 783 F.2d at 1367-68. We believe that the use of arms in the present case was reasonably necessary under the circumstances. The officers were acting in a situation which justified a fear for personal safety. The officers had been told by Maples that the occupants of the car in front of her home were armed. Therefore, when the officers approached the car, it was reasonable for them to display their weapons for their own protection. Under these circumstances, the use of arms did not convert the investigative stop into an arrest. Nor did the mere blocking of Hard-nett’s car effectuate an arrest of Hardnett. Several circuits have held that blocking a vehicle generally is reasonable, and not an excessive intrusion, when the suspect is in a vehicle “because of the chance that the suspect may flee upon the approach of police with resulting danger to the public as well as to the officers involved.” United States v. Jones, 759 F.2d 633, 638 (8th Cir.), cert. denied, — U.S.; 106 S.Ct. 113, 88 L.Ed.2d 92 (1985); see also" }, { "docid": "8098435", "title": "", "text": "of drug suspects arrested are not armed at the time of arrest. Ante at 35 n.29. In this case, the anonymous tipster, who gave detailed information about the appellants, made no mention of guns or weapons. In addition, there was nothing to indicate that the appellants had a record of violent crimes. Moreover, the police behavior in this case belies their purported concern about their safety. The record reveals that after White got out of the car, but before Hill had frisked him for weapons, Hill holstered his gun in order to pick up the tinfoil. Rather than a means to protect himself or maintain the status quo, the drawn weapon was a tool to place the appellants under absolute restraint. In many ways the present case parallels United States v. Ramos-Zaragosa, 516 F.2d 141 (9th Cir. 1975), in which the police had received a detailed tip that the defendants were transporting drugs. The police stopped the defendants at gunpoint and ordered them out of their vehicle. The court held that the defendants had been arrested: The arrest was completed when the appellant and his passenger complied with the order to get out of the pickup. The encounter of the agents and the appellant and his passenger was an arrest, as opposed to an investigatory stop, because the agents at gun point, under circumstances not suggesting fears for their personal safety, ordered the appellant and his passenger to stop and put up their hands. Id. at 144. Under certain circumstances, force may be necessary to effect a stop. As stated in United States v. Thompson, 558 F.2d 522, 524 (9th Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978): A police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop. In Thompson the police drew their guns only after the van “began to move and then suddenly lurched forward.” Id. In the present case, there was no factual basis to believe the appellants were armed, and" } ]

[ { "docid": "16134186", "title": "", "text": "521 (1978), for the proposition that an appeal from the denial of a “Rule 60(b) motion does not bring up the underlying judgment for review.”). We review the denial of a Rule 60(b) motion for abuse of discretion. Cash v. Illinois Div. of Mental Health, 209 F.3d 695, 697-98 (7th Cir.2000) (citing Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 628 (7th Cir.1997)). Under Rule 60(b)(1), a district court may vacate a final judgment based on “mistake, inadvertence, surprise, or excusable neglect.” “Attorney carelessness can constitute excusable neglect” under Rule 60(b)(1). Federal Election Comm’n v. Al Salvi for Senate Comm., 205 F.3d 1015, 1020 (7th Cir.2000) (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). However, Rule 60(b)(1) relief is discretionary, and our review is, therefore, extremely deferential. Id. (citing United States v. Golden Elevator, Inc., 27 F.3d 301, 303 (7th Cir.1994)). A district judge’s ruling on a Rule 60(b)(1) motion will stand “unless no reasonable person could have acted as the judge did.” Id. (quoting Golden Elevator, Inc., 27 F.3d at 303). Given the facts of the present case together with our deferential standard of review, we find that Judge Bucklo did not abuse her discretion in denying Castro’s motion for Rule 60(b)(1) relief. As was the case in Federal Election Commission v. Al Salvi for Senate Committee, the circumstances of the present case may arguably constitute excusable neglect. See id. at 1020. However, they do not compel that conclusion. See id. The district court considered Castro’s reasons for delay as proffered in the motion to vacate and determined that Castro knew of the deadlines established by the court but chose to ignore them. This determination is not clearly unreasonable. We do not address Castro’s due process claim under Rule 60(b)(4) because this issue was not raised in his motion to vacate. The district court’s denial of Castro’s motion to vacate is Affirmed. . Under Fed.R.Civ.P. 60(b), the court may relieve a party from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or" } ]

[ { "docid": "20475765", "title": "", "text": "reasons for excusing such failure apply. Accordingly, the district court properly granted Appellees’ motion for summary judgment. IV. Leave to File Answers Out of Time Chorosevic also appeals the district court’s order granting Appellees leave to file answers nearly seven months after the court partially granted Appellees’ motion to dismiss. We review a district court’s decision to allow a party to submit a late filing for an abuse of discretion. Sugarbaker v. SSM Health Care, 187 F.3d 853, 855-56 (8th Cir.1999). “An abuse of discretion occurs where the district court fails to consider an important factor, gives significant weight to an irrelevant or improper factor, or commits a clear error of judgment in weighing those factors.” Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 316 (8th Cir.2009). Federal Rule of Civil Procedure 6(b)(1)(B) permits a district court to extend the time for a party to submit a filing “if the party failed to act because of excusable neglect.” Excusable neglect is an “elastic concept” that empowers courts to accept, “where appropriate, ... late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S.Ct. 1489. “[T]he following factors are particularly important: (1) the possibility of prejudice to [Chorosevic]; (2) the length of [Appellees’] delay and the possible impact of that delay on judicial proceedings; (3) [Appellees’] reasons for delay, including whether the delay was within [their] reasonable control; and (4) whether [Appellees] acted in good faith.” Sugarbaker, 187 F.3d at 856. The district court relied primarily on two considerations. First, Appellees’ failure to file an answer to the surviving portion of the amended complaint was not a result of bad faith, but instead an inad vertent oversight. Second, Chorosevic did not suffer any prejudice from the delay, because he had notice of Appellees’" }, { "docid": "10782395", "title": "", "text": "Rule 6(b)(1), which allows a court to grant an extension if a ‘request’ is made before the time for filing expires. By contrast, the Court emphasized that post-deadline extensions may be granted only ‘for cause shown’ and ‘upon motion.’ Any post-deadline motion ‘must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond.’ ” (quoting Lujan, 497 U.S. at 896 n. 5, 110 S.Ct. 3177)); Jones v. Cent. Bank, 161 F.3d 311, 314 n. 2 (5th Cir.1998) (“[R]ule 6(b)(2) requires that, once a deadline has expired (as occurred in the instant case), leave to file late can be granted only ‘upon motion made.’ The Supreme Court said so explicitly in construing rule 6(b) in [Lujan ].... In other words, there is no discretion to grant a post-deadline extension absent a motion and showing of excusable neglect.” (citing Lujan, 497 U.S. at 896, 110 S.Ct. 3177)); ADAPT of Phila. v. Phila. Hous. Auth., 511 F.Supp.2d 510, 515 (E.D.Pa.2007) (“If the moving party does not seek an extension until after the time limit has expired, the court may exercise its discretion only if a motion is made and the moving party proves its failure to comply with the applicable deadline was the result of excusable neglect.” (citing Lujan, 497 U.S. at 896 n. 5, 110 S.Ct. 3177)). C. We are left with the question whether the District Court’s last-minute hearing on summary judgment violated Rule 6(b), requiring reversal. We agree that Rule 6(b) and Lujan require motions, untimely under the Rules, to be filed in accordance with the requirements of Rule 6(b)(1)(B). Thus a party must make a formal motion for extension of time and the district court must make a finding of excusable neglect, under the Pioneer factors, before permitting an untimely motion. Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Under Pioneer, the excusable neglect inquiry must consider “all relevant circumstances surrounding the party’s omission. These include ... the danger of prejudice ...," }, { "docid": "22249968", "title": "", "text": "hearing, and confirmed the denial through an order filed one week later. The district court construed the Lemoges’ Motion as a motion for relief under Federal Rule of Civil Procedure 60(b)(1) for excusable neglect. Despite accepting that Caruana had suffered medical injuries requiring extensive treatment, the district court concluded that none of Caruana’s explanations justified the significant passage of time before the Motion was filed. The district court also concluded that the government would be unfairly prejudiced if the Lemoges’ action was reopened because the government relied on its dismissal in settling the Granite State Action. The Lemoges appeal the district court’s denial of their Motion. II A district court’s denial of relief from a final judgment, order, or proceed ing under Federal Rule of Procedure 60(b) is reviewed for abuse of discretion. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir.2000). A district court abuses its discretion by denying relief under Rule 60(b) when it makes an error of law or relies on a clearly erroneous factual determination. Bateman v. U.S. Postal Serv., 281 F.3d 1220, 1223 (9th Cir.2000). Federal Rule of Civil Procedure 60(b)(1) provides as follows: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: [] mistake, inadvertence, surprise, or excusable neglect.” Excusable neglect “encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and includes “omissions caused by carelessness,” id. at 388, 113 S.Ct. 1489. The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S.Ct. 1489. To determine when neglect is excusable, we conduct the equitable analysis specified in Pioneer by examining “at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for" }, { "docid": "10782396", "title": "", "text": "the moving party does not seek an extension until after the time limit has expired, the court may exercise its discretion only if a motion is made and the moving party proves its failure to comply with the applicable deadline was the result of excusable neglect.” (citing Lujan, 497 U.S. at 896 n. 5, 110 S.Ct. 3177)). C. We are left with the question whether the District Court’s last-minute hearing on summary judgment violated Rule 6(b), requiring reversal. We agree that Rule 6(b) and Lujan require motions, untimely under the Rules, to be filed in accordance with the requirements of Rule 6(b)(1)(B). Thus a party must make a formal motion for extension of time and the district court must make a finding of excusable neglect, under the Pioneer factors, before permitting an untimely motion. Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Under Pioneer, the excusable neglect inquiry must consider “all relevant circumstances surrounding the party’s omission. These include ... the danger of prejudice ..., the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id.; see also In re OBrien Envtl. Energy, Inc., 188 F.3d 116, 125 n. 7 (3d Cir.1999) (holding that Pioneer factors apply to all excusable neglect inquiries mandated under the Federal Rules of Civil Procedure). We do not evaluate the District Court’s purported finding of excusable neglect because, notwithstanding Gototweski’s averment otherwise, the record is devoid of evidence suggesting that such a finding was made. We conclude that the District Court violated Rule 6(b) by granting Gototweski’s third and final motion for summary judgment. The scheduling order required all dispositive motions to be filed by March 3, 2008. On November 10, 2008, Gototweski filed his second motion for summary judgment on the grounds that none of Drippe’s grievances reached the final and required stage of the grievance review procedure. On November 17, 2008, after additional documents came to light," }, { "docid": "23552581", "title": "", "text": "appeal from Pretrial Order No. 2622 filed by another counsel participating in MDL 1203. Pursuant to Fed. R.App. P. 4(a), the deadline to file an appeal was Monday, November 4, 2002. On Wednesday, November 6, after the deadline had passed, Riepen claims to have finally learned that Pretrial Order No. 2622 had issued on October 3 and that the appeal deadline had recently passed. On November 12, 2002, eight days after the time to appeal had expired, Riepen filed an untimely Notice of Appeal and also moved the District Court to extend the time to appeal under Rule 4(a)(5), claiming “excusable neglect.” The PMC opposed the motion. On February 20, 2003, this Court ordered the appeal dismissed for lack of jurisdiction. On November 26, 2003 (more than a year after Riepen’s motion was filed), in Pretrial Order No. 3141, the District Court denied Riepen’s motion to excuse the untimely appeal. On December 22, 2003, Riepen filed a timely Notice of Appeal from that order, which is a final order for purposes of 28 U.S.C. § 1291. Appellate jurisdiction therefore exists pursuant to § 1291 on the limited issue of the timeliness of Riepen’s appeal and the existence of excusable neglect. We review the District Court’s rejection of Riepen’s motion for an extension for abuse of discretion. Fed. R.App. P. 4(a)(5) provides that the district court may extend the time to file a notice of appeals if the delinquent party shows excusable neglect or good cause. In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380, 395-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court interpreted the term “excusable neglect,” albeit in the context of the bankruptcy rules. Since that time, the determination of whether a party’s neglect is excusable has been held to be an equitable determination, in which we are to take into account all the relevant circumstances surrounding a party’s failure to file timely. In George Harms Const. Co., Inc. v. Chao, 371 F.3d 156, 163-64 (3d Cir.2004), this Court applied Pioneer’s, four-factor analysis of the excusable- neglect standard in a Fed.R.Civ.P. 60(b)" }, { "docid": "23197241", "title": "", "text": "appeal of the original dismissal. See id. Thus, Noah’s October 6 notice of appeal is timely only with respect to the district court’s September 9 order denying his sec ond Rule 60(b) motion to set aside the judgment. See Fed. R.App. P. 4(a)(1)(A) (requiring a notice of appeal to be filed “within 30 days after the judgment or order appealed from is entered”). An appeal from the denial of a Rule 60(b) motion does not raise the underlying judgment for our review but only the question of whether the district court abused its discretion in ruling on the Rule 60(b) motion. Sanders v. Clemco Indus., 862 F.2d 161, 169 (8th Cir.1988).' We will find an abuse of discretion only when the district court’s judgment was based on clearly erroneous fact-findings or erroneous conclusions of law. Roark v. City of Hazen, 189 F.3d 758, 761 (8th Cir.1999). “Reversal of a district court’s denial of a Rule 60(b) motion is rare because Rule 60(b) authorizes relief in only the most exceptional of cases.” Int'l Bhd. of Elec. Workers v. Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir.2002). Under Rule 60(b)(1), a district court may grant relief from a judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” The term “excusable neglect” in this context is generally “ ‘understood to encompass situations in, which the failure to comply with a filing deadline is attributable to negligence.’ ” Union Pac. R.R. v. Progress Rail Servs. Corp., 256 F.3d 781, 782 (8th Cir.2001) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). To be excusable, however, the neglect must be accompanied by a showing of good faith and some reasonable basis for not complying with the rules. Ivy v. Kimbrough, 115 F.3d 550, 552 (8th Cir.1997). It is generally held that “excusable neglect” under Rule 60(b) does not include ignorance or carelessness on the part of an attorney. Hunt v. City of Minneapolis, 203 F.3d 524, 528 n. 3 (8th Cir.2000); Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969). Neither a" }, { "docid": "23197242", "title": "", "text": "Workers v. Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir.2002). Under Rule 60(b)(1), a district court may grant relief from a judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” The term “excusable neglect” in this context is generally “ ‘understood to encompass situations in, which the failure to comply with a filing deadline is attributable to negligence.’ ” Union Pac. R.R. v. Progress Rail Servs. Corp., 256 F.3d 781, 782 (8th Cir.2001) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). To be excusable, however, the neglect must be accompanied by a showing of good faith and some reasonable basis for not complying with the rules. Ivy v. Kimbrough, 115 F.3d 550, 552 (8th Cir.1997). It is generally held that “excusable neglect” under Rule 60(b) does not include ignorance or carelessness on the part of an attorney. Hunt v. City of Minneapolis, 203 F.3d 524, 528 n. 3 (8th Cir.2000); Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969). Neither a mistake of law nor the failure to follow the clear dictates of a court rule constitutes excusable neglect. See Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 404 (8th Cir.2000). ' Here, the district court’s scheduling and trial order clearly required Noah to file a designation of incidents of discriminatory treatment by June 1, yet Noah failed to comply. Further, the order to show cause clearly warned that a failure to respond would result in a dismissal of the complaint, yet Noah failed to respond. In support of his second Rule 60(b) motion, Noah’s counsel stated that his concentration was focused on other matters because his schedule was “unusually complicated after a holiday weekend.” (App. at 135.) Noah asserts that the failure to comply with the court’s orders should be overlooked because he was not dilatory in other discovery matters in this case and because Bond Cold Storage does not demonstrate that it suffered prejudice from his failure to comply with the court’s orders. After considering all of the relevant circumstances, we find no abuse" }, { "docid": "20401173", "title": "", "text": "vice had functioned as appearances in the tag along cases. The district court denied the motion. It reasoned that Plaintiffs failed to comply with the January 26, February 7, February 19, and April 14 orders and failed to respond to Anthem’s motion, even though Plaintiffs’ counsel received three of the orders electronically and received a paper copy of the motion by mail. The court concluded that these circumstances did not constitute excusable neglect. Rule 60(b)(1) of the Federal Rules of Civil Procedure authorizes a court to relieve a party from a final judgment or order upon a showing of “mistake, inadvertence, surprise, or excusable neglect.” “Rule 60(b) motions are directed to the sound discretion of the district court, and we will set aside the denial of relief from such motion only for abuse of that discretion.” Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849 n. 2 (11th Cir.1996). Excusable neglect is generally an “equitable inquiry” based upon the particular circumstances of the case. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 1495, 123 L.Ed.2d 74 (1993). In Pioneer, the Court held that an attorney’s inadvertent failure to timely file a proof of claim can constitute excusable neglect under Bankruptcy Rule 9006(b)(1). Looking to other rules for guidance on the meaning of “excusable neglect,” the Court considered Rule 60(b)(1) and observed that “for purposes of Rule 60(b), ‘excusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Id. at 394, 113 S.Ct. at 1497. The Court identified four factors pertinent to the determination: “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on the judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. at 395, 113 S.Ct. at 1498. This Court applied the Pioneer factors in Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir.1996), holding that the plaintiffs counsel’s late filing" }, { "docid": "22442445", "title": "", "text": "the District Court’s erroneous procedural rulings until this Court decided it was without jurisdiction; now it is too late. Because Lowry’s 60(b) motion was not filed within the thirty days permitted for filing a notice of appeal from the denial of the 4(a)(5) motion, the District Court erred in considering the 60(b) motion. III. Even if the Rule 60(b) motion had been timely filed and properly granted so as to give the District Court the authority to revisit the Rule 4(a)(5) motion, we conclude that the District Court abused its discretion in finding that Lowry had shown excusable neglect. See Metropolitan Fed. Bank v. W.R. Grace & Co., 999 F.2d 1257, 1259 (8th Cir.1993) (standard of review). The time limits detailed in Federal Rule of Appellate Procedure 4 for filing a notice of appeal in the district court are “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). Under the terms of the rule, as relevant here, the district court may extend the time for filing a notice of appeal upon motion by a party made within thirty days of the filing deadline and with a showing of excusable neglect. See Fed. R.App. P. 4(a)(5). The question here is whether Lowry can demonstrate excusable neglect. In Fink v. Union Central Life Insurance Co., this Court adopted the “more flexible analysis of the excusable neglect standard” set forth in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), for application to Rule 4(a)(5) cases. Fink, 65 F.3d 722, 724 (8th Cir.1995). In Pioneer, the Supreme Court “conclude[d] that the determination [of whether neglect is excusable] is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at 395, 113 S.Ct. 1489. The Court found those circumstances to include “the danger of prejudice to the [non-moving party], the length of the delay and its potential impact on" }, { "docid": "8381420", "title": "", "text": "COFFEY, Circuit Judge. This appeal concerns the issue of whether attorney negligence in missing a filing deadline may be deemed “excusable neglect” for purposes of Fed.R.Civ.P. 60(b)(1). The plaintiff-appellant, Michele A. Robb, brought a wrongful death action against the defendant-appellee Norfolk & Western Railway Company (“NWR” or “the railroad”). Because Robb’s attorney failed to submit a timely brief in response to the railroad’s summary judgment motion, the district court granted judgment in favor of NWR. Subsequently, the plaintiffs attorney filed a motion for relief from the judgment under Rule 60(b)(1), noting that he had reached an agreement with opposing counsel for an extension of time in which to file his responsive brief, and arguing that his failure to notify the court of this agreed-upon extension amounted to “excusable neglect.” The trial judge denied the Rule 60(b)(1) motion, stating his belief that he lacked discretion to grant the motion because of what he classified as a “hard and fast” rule in this circuit that attorney negligence can never be considered “excusable neglect.” However, the Supreme Court in Pioneer Inv. Sens. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), underscored the equitable nature of a court’s “excusable neglect” determination and clarified that “excusable neglect” could “encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Id. at 394, 113 S.Ct. at 1497. Consistent with Pioneer, we remand this ease to the district judge in order that he .might exercise his discretion in ruling on the plaintiff-appellant’s Rule 60(b)(1) motion. I. BACKGROUND The plaintiff-appellant’s husband, Paul D. Robb, was killed on September 15, 1993 when the ear he was driving collided with a train at a railroad crossing in Marshall County, Indiana. In 1994, Michele A. Robb, the decedent’s wife, brought a wrongful death action against NWR, both individually and in her capacity as personal representative of her husband’s estate. Robb alleged that the railroad (which owned and operated both the train and the railroad crossing involved in the accident), had “negligently failed to adequately protect [the decedent] from" }, { "docid": "22326347", "title": "", "text": "Casey’s second excusable neglect argument is that her first attorney committed malpractice; that her second attorney was inexperienced; and that her second and third attorneys did the best they could under the circumstances. As a general rule, parties are bound by the actions of their lawyers, and alleged attorney malpractice does not usually provide a basis to set aside a judgment pursuant to Rule 60(b)(1). See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (parties are “held responsible for the acts and omissions of their chosen counsel”); Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir.1997) (“attorney error is insufficient grounds for relief under ... Rule 60(b)(1)”). This is especially the case where a party has waited a year to complain about the failings of her lawyers. The time for Casey to have complained about her lawyers was when her third attorney came on, weeks prior to the summary judgment ruling, and not a year later in a motion for relief from judgment. The district court did not abuse its discretion in ruling that Casey’s attorneys’ alleged inexperience and/or malpractice did not constitute excusable neglect under Rule 60(b)(1). 2. Fraud Rule 60(b)(3) provides that “[o]n motion ... the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons ... fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” “To prevail, the moving party must prove by clear and convincing evidence that the verdict was obtained through fraud, misrepresentation, or other misconduct and the conduct complained of prevented the losing party from fully and fairly presenting the defense.” De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir.2000). “Federal Rule of Civil Procedure 60(b)(3) require[s] that fraud ... not be discoverable by due diligence before or during the proceedings.” Pac. & Arctic Ry. and Navigation Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir.1991). Casey claims that Albertson’s failure to respond" }, { "docid": "22124883", "title": "", "text": "for drafting oppositions than for drafting replies. See, e.g., N.D. Cal. Local R. 7-3(a), (c); S.D. Cal. Local R. 7.1(e)(1), (2). Had the district court had any doubts about the veracity or good faith of Ahanchian’s counsel, or been worried about prospective prejudice, it could have held an evidentiary hearing or sought more information; instead, without support in the record, it summarily denied Ahanchian’s request. The record shows that Ahanchian’s requested relief was reasonable, justified, and would not result in prejudice to any party. The district court nevertheless denied Ahanchian’s motion, thus effectively dooming Ahanchian’s case on the impermissible ground that he had violated a local rule. Because Ahanchian clearly demonstrated the “good cause” required by Rule 6, and because there was no reason to believe that Ahanchian was acting in bad faith or was misrepresenting his reasons for asking for the extension, the district court abused its discretion in denying Ahanchian’s timely motion. B. We next turn to the district court’s denial of Ahanchian’s September 5, 2008, ex parte application to allow his late-filed opposition, which the court construed as a Rule 60(b) motion for reconsideration of its denial of Ahanchian’s Rule 6 motion for an extension. Rule 60(b) provides that a court “may relieve a party or its legal representative from a final judgment, order, or proceeding” on the basis of “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b). The court denied Ahanchian’s application after concluding that Ahanchian had not demonstrated “excusable neglect.” In so doing, however, the district court failed to cite the correct legal standard, applying an incorrect legal standard for deciding Rule 60(b) motions. To determine whether a party’s failure to meet a deadline constitutes “excusable neglect,” courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Briones v. Riviera" }, { "docid": "17890035", "title": "", "text": "F.3d 249, 250 (5th Cir.2004) (“Motions addressing costs and attorney’s fees ... are generally made pursuant to Rule 54, are considered collateral to the judgment, and do not toll the time period for filing an appeal.”). This rule applies equally to requests for attorney’s fees made both before and after the court issues a judgment on the merits, and applies “with full force” to fee requests authorized by statutory provisions. Shultz, 802 F.2d at 502 n. 1. As noted, on January 12, 2011, the court issued an order in this case granting summary judgment to DHS and denying the plaintiffs cross-motion for summary judgment. See generally Order (Jan. 12, 2011). Upon entry of the court’s Order, the only remaining issue for adjudication was the plaintiffs motion for attorney’s fees and costs. The court’s January 12, 2011 Order therefore constitutes a final judgment for purposes of appeal. See White, 455 U.S. at 452 n. 14, 102 S.Ct. 1162. Because the court’s January 12, 2011 Order constitutes a final judgment as opposed to an interlocutory order, the plaintiffs motion seeking relief upon reconsideration of that Order is not properly brought under Rule 54(b), which can only be used to seek reconsideration of interlocutory orders. See supra Part III.A. 1.a. Accordingly, the court turns to consider the plaintiffs motion under Rule 60(b), the proper procedural vehicle to alter or amend a final judgment. 2. The Court Construes the Plaintiffs Motion for Relief Upon Reconsideration as a Rule 60(b) Motion a. Legal Standard for Relief Under Rule 60(b) In its discretion, the court may relieve a party from an otherwise final judgment pursuant to any one of six reasons set forth in Rule 60(b). Fed.R.Civ.P. 60(b); Lepkowski v. Dep’t of Treasury, 804 F.2d 1310, 1311-12 (D.C.Cir.1986). First, the court may grant relief from a judgment involving “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). Relief under Rule 60(b)(1) turns on equitable factors, notably whether any neglect was excusable. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Second, the court may grant relief" }, { "docid": "7541446", "title": "", "text": "pre-trial mediation. Concluding that counsel’s forgetfulness does not constitute excusable neglect, the district court struck Plaintiffs response. The district court subsequently granted summary judgment to Defendant without considering Plaintiffs response. II. DISCUSSION On appeal, Plaintiff does not challenge the merits of the summary judgment decision, instead assigning error only to the district court’s decision to strike her response to the summary judgment motion. Because Plaintiff requested an extension of the response deadline after the deadline had passed, the district court could grant the extension only if her failure to act resulted from excusable neglect. Fed. R.Civ.P. 6(b)(1)(B). “We review a district court’s determination of excusable neglect, or lack thereof, under the abuse-of-discretion standard.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir.2006) (citing Turner v. City of Taylor, 412 F.3d 629, 649 (6th Cir.2005)). Such abuse exists if the district court “relied on erroneous findings of fact, applied the wrong legal standard, misapplied the correct legal standard when reaching a conclusion, or made a clear error of judgment.” Id. The determination of excusable neglect is “an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In Pioneer, the Supreme Court set out five factors for courts to balance when determining the existence of excusable neglect: (1) the danger of prejudice to the non-moving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the reasonable control of the moving party, and (5) whether the late-filing party acted in good faith. Nafziger, 467 F.3d at 522 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). The district court considered the Pioneer factors and concluded they did not show excusable neglect. The court found that only the first factor weighed in favor of Plaintiff in that Defendant was not prejudiced. But the other factors weighed against Plaintiff, the district court concluded, because the delay significantly impacted judicial proceedings, was not excusable, and" }, { "docid": "20632270", "title": "", "text": "other misconduct of an adverse party.” Fed.R.Civ.P. 60(b)(3). Subsection (6) provides for relief, for “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(6). We review a district court’s disposition of a 60(b) motion for abuse of discretion. Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.1986). It is fundamental that Rule 60(b) “provides for extraordinary relief, [and] a motion thereunder may be granted only under exceptional circumstances.” Id. Plaintiffs allege that extraordinary relief is warranted in this case because defendants willfully and intentionally misled plaintiffs to believe that the deposition transcripts and other documents they requested would be promptly provided. They maintain that defendants’ dilatory tactics in this regard prevented them from timely filing their opposition to summary judgment. Plaintiffs first claim that the district court erred by denying their motion for reconsideration on grounds of “excusable neglect,” within the meaning of Rule 60(b)(1). Discussing similar language found elsewhere in the Federal Rules of Civil Procedure, the Supreme Court has acknowledged that “excusable neglect” is a fairly flexible concept that encompasses “inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Plaintiffs only address one of these factors, contending that the delay was not within their control because neither Caballero nor defense counsel provided certain “essential” documents, despite repeated requests. By contrast, the district court found that plaintiffs did have a significant measure of control over — and ability to minimize — the delay. In an order dated August 26, 2003, the district judge allowed an additional fifteen days for plaintiffs to take Caballero’s deposition because they had been previously unable to do so. The order stipulated that “[i]f an impasse occurs, parties shall request the intervention of the Court, and should there be any other conflict regarding her deposition, Plaintiffs are therefore allowed to present a petition for sanctions.” In its order denying plaintiffs’ Amended Motion for Reconsideration, the district court found that plaintiffs “were provided an exceptional amount of time to" }, { "docid": "22124884", "title": "", "text": "opposition, which the court construed as a Rule 60(b) motion for reconsideration of its denial of Ahanchian’s Rule 6 motion for an extension. Rule 60(b) provides that a court “may relieve a party or its legal representative from a final judgment, order, or proceeding” on the basis of “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b). The court denied Ahanchian’s application after concluding that Ahanchian had not demonstrated “excusable neglect.” In so doing, however, the district court failed to cite the correct legal standard, applying an incorrect legal standard for deciding Rule 60(b) motions. To determine whether a party’s failure to meet a deadline constitutes “excusable neglect,” courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (adopting this test for consideration of Rule 60(b) motions). Through other decisions, including Bateman v. U.S. Postal Serv., 231 F.3d 1220 (9th Cir.2000), and Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) (en banc), we have further clarified how courts should apply this test. In Bateman, we concluded that when considering a Rule 60(b) motion a district court abuses its discretion by failing to engage in the four-factor Pioneer/Briones equitable balancing test. Bateman, 231 F.3d at 1223-24. Bateman’s counsel had left the country before filing an opposition to the Postal Service’s summary judgment motion, allowed the deadline to pass while abroad, failed to file any motions for extensions of time, and failed to contact the district court for sixteen days after he returned because of “jet lag and the time it took to sort through the mail.” Id. at 1223. Because the district court had already awarded summary judgment to the Postal Service, Bateman moved to set aside the judgment pursuant to Rule 60(b). Id." }, { "docid": "22249969", "title": "", "text": "U.S. Postal Serv., 281 F.3d 1220, 1223 (9th Cir.2000). Federal Rule of Civil Procedure 60(b)(1) provides as follows: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: [] mistake, inadvertence, surprise, or excusable neglect.” Excusable neglect “encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and includes “omissions caused by carelessness,” id. at 388, 113 S.Ct. 1489. The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S.Ct. 1489. To determine when neglect is excusable, we conduct the equitable analysis specified in Pioneer by examining “at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman, 231 F.3d at 1223-24 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). Although Pioneer involved excusable neglect under Federal Rule of Bankruptcy Procedure 9006(b), in Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997), we concluded that the Pioneer standard governs analysis of excusable neglect under Rule 60(b)(1). See id. at 381, 113 S.Ct. 1489. A We conclude that the district court did not identify the Pioneer-Briones standard or correctly conduct the PioneerBriones analysis and that this was an abuse of discretion. While the district court conducted analysis related to the first three factors, the district court did not consider the fourth factor, good faith, or, as required under the circumstances of this case, the prejudice the Lemoges would suffer if their Motion was denied. The district court did not cite to Pioneer or Briones or list the Pioneer-Briones factors. In Bateman, we held that district courts should explicitly use the PioneerBriones framework for analysis of excusable neglect under Rule" }, { "docid": "15875585", "title": "", "text": "the United Nations” in his letter to Beth Stephens, Center for Constitutional Rights, March 24, 1993. J.A. at 12-13, 18. . The agencies’ motion was for partial summary judgment regarding Categories One, Two, and Four. As noted, SAGE subsequently dismissed its claim regarding Category Three. . See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973); see also Mays v. DEA, 234 F.3d 1324, 1326 (D.C.Cir.2000). . The magistrate also found that one document was covered by Exemptions 5 (deliberative process privilege) and 6 (personal privacy). Those exemptions are not at issue on appeal. . SAGE filed its notice of appeal two days after the deadline set by Federal Rule of Appellate Procedure 4(a)(1)(B). The district court granted SAGE's timely motion to extend the time for appeal under Rule 4(a)(5), which authorizes district courts to grant an extension upon a showing of \"excusable neglect.” We review such orders on an abuse of discretion standard, see Johnson v. Lehman, 679 F.2d 918, 919-20 (D.C.Cir.1982), and we reject the government’s suggestion that the district court’s determination of \"excusable neglect” constituted such an abuse. See Pioneer Inv. Servs. Co. v. Brunswick Assoc., 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir.1996). . Exec. Order No. 12,958, § 1.5(c), 60 Fed. Reg. 19,825 (Apr. 17, 1995), reprinted in 50 U.S.C. § 435. . Exec. Order No. 12,951, § 2, 60 Fed.Reg. 10,789 (Feb. 22, 1995), reprinted in 50 U.S.C. § 435. . The CIA also invoked the Central Intelligence Agency Information Act of 1984, 50 U.S.C. § 431, in support of its claim to protection under Exemption 3. As the government notes, however, we need not consider SAGE's challenge to the applicability of that Act because the agency invoked the National Security Act for the same photographs. . The government stated that any satellite imagery that existed was protected from disclosure under Exemptions 1 and 3, but that it could neither confirm nor deny the existence of such imagery. Strickland Deck at 6. We have held such a response, commonly referred to as" }, { "docid": "2386318", "title": "", "text": "Court’s resolution of Defendant’s Motion for Summary Judgment. III. PLAINTIFF’S MOTIONS FOR EXTENSION OF TIME. The procedural history set out above details the untimeliness of Plaintiffs actions with respect to the discovery deadlines established in this case. Nevertheless, Plaintiff has moved, pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, for an extension of time \"with respect to the deadlines set forth in the Joint Rule 26(f) Report. Specifically, Plaintiff now seeks an extension of time both to amend his Complaint and to name an expert. However, Plaintiffs motions for extension of time in both instances were not filed until October 29, 1997, after Defendant filed a Motion for Summary Judgment. It is clear that Plaintiffs motions were filed well beyond the April 23, 1997 deadline for such actions to be taken. Under such circumstances, Rule 6(b) provides for extensions-of time as follows: When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect- Fed.R.Civ.P. 6(b)(2) (emphasis added). Therefore, in order for Plaintiff to receive the relief he now seeks, there must be evidence that Plaintiffs omissions resulted from excusable neglect. Id. As interpreted by the United States Supreme Court, the term “neglect” is defined to encompass “late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Pioneer Inv. Servs., Co. v. Brunswick Assocs., Ltd. Partnership, 607 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74, 85 (1993). In defining whether a party’s neglect is “excusable,” the Supreme Court concluded “that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at 395, 113 S.Ct. at 1498, 123 L.Ed.2d at 89. See also United States v. Borromeo, 945 F.2d" }, { "docid": "22326346", "title": "", "text": "1. Excusable Neglect Rule 60(b)(1) provides that “[o]n motion ... the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... excusable neglect.” Casey’s first argument that her Rule 60(b)(1) motion should be granted is that she was justifiably delayed in her efforts to locate Smith and obtain her declaration. This argument is unpersuasive. Casey does not explain why only one search service could locate Smith, nor why she was unable to “discover” this service until nearly a year after the entry of summary judgment. The district court ruled that Casey’s failure to look for and find a key witness until after the lawsuit was over was not excusable neglect under Rule 60(b)(1). The district court did not abuse its discretion in so ruling. Cf. United States v. Bransen, 142 F.2d 232, 235 (9th Cir.1944). Further, Casey did not prove that finding this witness would have changed the outcome of the summary judgment hearing given the requests for admissions she failed to answer. Casey’s second excusable neglect argument is that her first attorney committed malpractice; that her second attorney was inexperienced; and that her second and third attorneys did the best they could under the circumstances. As a general rule, parties are bound by the actions of their lawyers, and alleged attorney malpractice does not usually provide a basis to set aside a judgment pursuant to Rule 60(b)(1). See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (parties are “held responsible for the acts and omissions of their chosen counsel”); Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir.1997) (“attorney error is insufficient grounds for relief under ... Rule 60(b)(1)”). This is especially the case where a party has waited a year to complain about the failings of her lawyers. The time for Casey to have complained about her lawyers was when her third attorney came on, weeks prior to the summary judgment ruling, and not a year later in" } ]

[ { "docid": "22862476", "title": "", "text": "exists, we can see no reason why an award for future lost earnings would not be in order, Thompson v. Brotherhood of Sleeping Car Porters, 367 F.2d 489, 494 (4th Cir. 1966), cert. denied, 386 U.S. 960, 87 S.Ct. 1019, 18 L.Ed.2d 110 (1967), provided they are apportioned between the Union and the employer along the guidelines of Vaca v. Sipes, supra and Czosek v. O’Mara, supra. Moreover, we think it makes good sense to give the district court an alternative to reinstatement in those cases where some prospective relief is warranted. Textile Workers Union of America v. Lincoln Mills, supra, 353 U.S. at 456-457, 77 S.Ct. 912. The admittedly difficult problems of quantifying future lost earnings should not be allowed to preclude any prospective remedy or to force the parties to accept the more drastic remedy of reinstatement. Of course the employee will only be entitled to recover from the Company for those damages which are reasonably attributable to the discharge and which could not have been mitigated by engaging in substantially equivalent employment. In this case it is unclear why the district court denied any form of prospective relief. We therefore remand this aspect of the damages question for the district court either to order reinstatement or to submit to a jury, after the taking of evidence, the question of the amount of future lost earnings. Plaintiffs also seek an award of reasonable attorney’s fees. While federal courts have awarded attorney’s fees as a part of the successful plaintiff’s recovery in the labor relations context in the absence of express statutory authorization and while we are inclined to think that such relief could be appropriate in a § 301 suit such as this one, we think the circumstances presented in this case preclude such relief. Normally such relief should be charged against the union, for its failure to utilize the grievance procedure on the employee’s behalf is what necessitated his resort to the Courts. However, in our case the Union is immune from liability because of the statute of limitations, and we can find no substantial evidence that" } ]

[ { "docid": "12164617", "title": "", "text": "not provided for in the statute, their use did not operate to prejudice the appellant. Furthermore, it is the opinion of this Court that Kay is not entitled to equitable relief in this instance as a result of laches. Those courts which have considered comparable claims have in effect balanced the interests of the parties and required that any claims against the state procedure be pressed expeditiously. See, e. g., Williams v. Rhodes, 393 U.S. 23, 34-35, 89 S.Ct. 5, 12, 21 L.Ed.2d 24 (1968). As time passes, the state’s interest in proceeding with the election increases in importance as resources are committed and irrevocable decisions are made, and the candidate’s claim to be a serious candidate who has received a serious injury becomes less credible by his having slept on his rights. In this case, Kay waited until nearly two weeks after he knew the choice of the candidates would be made and further delayed eleven days before filing suit. During this time, the state proceeded with election preparations. According to the affidavit of Cullen L. Towne, Senior Vice-President of Doubleday Brothers & Company, one of the companies which prints election materials for the State of Michigan, by March 31, 1980 — the day on which suit was filed — all of the necessary preliminary work had been done for the paper ballots, voting machine strips, and punch cards. He further stated that other supplies, such as notices of election, absentee voting material, and registration notices had been completed and shipped. As of March 31, 1980, the work completed represented from 50% to 75% of the total billable costs of $400,000. On the basis of these facts before it, it is the conclusion of this Court that the failure of the appellant to press his case when he should have known that an injury had occurred is fatal to his receiving any relief. Accordingly, for the reasons stated above, the judgment of the District Court is affirmed. . Although the Secretary of State has no record of receiving these clippings, for the purposes of this decision the Court assumes" }, { "docid": "11098546", "title": "", "text": "ROSZKOWSKI, Senior District Judge. This is an appeal from the district court’s award of summary judgment in favor of the plaintiff. The judgment awarded $150,000.00 in life insurance proceeds plus attorney’s fees to the plaintiff resulting from her husband’s death. The defendant appeals the entire judgment, while the plaintiff has filed a cross-appeal challenging the amount of attorney’s fees awarded as less than the amount requested by the plaintiffs counsel. As the insurance policy was part of an employee benefit plan, the district court had jurisdiction under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. This court has jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons stated herein, we affirm in part, reverse in part, and remand the case to the district court. I. The plaintiff, Maxine Bartlett, is the widow of Frank Bartlett. Mr. Bartlett was hired by the defendant’s predecessor company, G.E. Operations Support (“GEOS”), in February of 1990. He was hired as a civilian employee of its subsidiary, Operation and Maintenance Service, Inc. (“OMS”). He was hired as a regular full-time employee and had a normal work week of forty hours. In mid-1990, GEOS decided to change its benefits plan for employees to a cafeteria plan. In the fall of 1990, as part of the change in the benefits plan, a presentation was given to the employees, describing the flex benefits program. The employees were then asked to make an individual election of benefits under the new plan. At that time, there was no summary plan description detailing the qualifications on the benefits. A flex benefits workbook was given to the employees at the presentation. The workbook states: Who is eligible? All regular full-time employees of OMS are eligible to participate in the flexible benefits program. You are considered a full-time employee if you are regularly scheduled to work 40 hours in a week, usually consisting of five work days (or a full-time schedule in effect for your work location.) A complete description of the Flexible Benefits Program is contained in insurance contracts and legal documents on file" }, { "docid": "21483622", "title": "", "text": "are in all Meat Cutters contracts in this and other areas. 1. Vacation: 1 week after one year’s service 2 weeks after three years’ service 3 weeks after ten years’ service 4 weeks after twenty years’ service 2. Six paid holidays: New Year’s Day Memorial Day Fourth of July Labor Day Thanskgiving Day Christmas'Day 3. Group Life Insurance for the employee and his family as well as Sick Pay for time lost for sickness. 4. Pension Plan. 5. Time and one-half (1%) pay for all hours over forty (40) hours in any week. 6. Time and one-half (1%) pay for all hours worked on a holiday plus the holiday pay. 7. Time and one-half (1%) for all hours worked on Sundays. 8. A grievance procedure, which means that the Company cannot push you around to suit themselves. 9. Two (2) fifteen (15) minute paid coffee breaks each day. 10. Seniority: Which means that the Company cannot shove you all over the map to suit themselves. 11. All uniforms are furnished and laundered by the Company. 12. Leaves of Absence for pregnancy, personal reasons, union business and death in the family without loss of seniority. AND ONE OF THE MOST IMPORTANT PROVISIONS IN ALL MEAT CUTTERS CONTRACTS: “NO EMPLOYEE SHALL SUFFER A REDUCTION IN WAGES OR THE LOSS OF ANY OTHER BENEFITS DUE TO HAVING A UNION.” A YES VOTE AT THE SECRET BALLOT ELECTION ON FEBRUARY 14th WILL BE THE FIRST STEP IN SECURING THESE CONDITIONS AND BENEFITS IN YOUR STORES, AND FOR A BETTER WAY OF LIFE FOR YOU AND YOUR FAMILY. NO ONE BUT NO ONE WILL KNOW HOW ANYONE VOTES UNLESS THE EMPLOYEE HIMSELF TELLS. FULL DETAILS ON WAGE RATES WILL BE GIVEN AT A LATER DATE. Respondent contends that the circular so distributed contained willful and substantial mis-statements of fact designed and calculated to affect the results of the election. It subsequently developed that the benefits as listed in the circular are not in all of the Union’s contracts in this and other areas. The Union’s contract with Colonial Stores contained all the claimed benefits but" }, { "docid": "22855138", "title": "", "text": "are ability to drive a truck, departmental seniority and being white. Employees, whether they be Negro or white, need training to operate a machine in the fabrication department. While no case precisely on point appears to have been decided, the governing principles are not new. Present discrimination may be found in contractual provisions that appear fair upon their face, but which operate unfairly because of the historical discrimination that undergirds them. NLRB v. Local 269, IBEW, 357 F.2d 51 (3rd Cir. 1966). Departmental seniority rooted in decades of racially segregated departments can neither mask the duty of a union to fairly represent its members nor shield the employer who is privy to the union’s derelictions. Central of Georgia Railway Co. v. Jones, 229 F.2d 648 (5th Cir. 1956), cert. den., 352 U.S. 848, 77 S.Ct. 32, 1 L.Ed.2d 59 (1956). The court finds that the defendants have intentionally engaged in unlawful employment practices by discriminating on the ground of race against Quarles, and other Negroes similarly situated. This discrimination, embedded in seniority and transfer provisions of 'collective bargaining agreements, adversely affects the conditions of employment and opportunities for advancement of the class. The parties have proposed various remedies that they deem appropriate under § 706(g) [42U.S.C. § 2000e-5(g)], which provides in part: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay * * *.” The plaintiffs suggest that the seniority rosters for the fabrication, prefabrication and warehouse shipping and receiving departments be merged according to employment seniority. They urge that Quarles be given the opportunity to fill the first vacancy for a truck driver arid that Negro employees have an opportunity to fill the first vacancies in a number of jobs that previously have not been held by Negro employees. The United States Equal Employment Opportunity Commission, amicus curiae, suggests" }, { "docid": "22855143", "title": "", "text": "ground of race. The departmental seniority rights of white employees in the fabrication department are not vested, indefeasible rights. They are expectancies derived from the collective bargaining agreement, and are subject to modification. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Pellicer v. Brotherhood of Railway and Steamship Clerks, 217 F.2d 205 (5th Cir. 1954); cert. den., 349 U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1246 (1955). In Central of Georgia Railway Co. v. Jones, 229 F.2d 648, 649 n. 3 (5th Cir. 1956), cert. den., 352 U.S. 848, 77 S.Ct. 32, 1 L.Ed.2d 59 (Í956), the court affirmed a decree that invalidated white and Negro lines of seniority, and enjoined the union and the company from enforcing contractual or operating practices which denied Negroes the right to compete and train for brakeman and other jobs. The decree affirmatively required the union and company to grant “the same seniority rights, training privileges, assignments, and opportunities to these jobs as white persons of similar continuous service would enjoy.” Here also the remedy should permit Negro employees in the class to train and advance on the same basis as white employees with comparable ability and employment seniority. At the same time, the remedy should disturb as little as possible the efficiencies which the company finds in its departmental structure. The decree will provide that all Negroes hired by the company before January 1,1966 who now work in the prefabrication department shall be given an opportunity to transfer to the fabrication or warehouse shipping and receiving departments to fill vacancies if they elect to transfer and if they are qualified for the jobs they seek. Fifteen days after the entry of this decree the company shall serve on counsel for other parties and file Roster No. 1, showing the name of each Negro employee hired before January 1, 1966 who now works in the prefabrication department, together with his employment seniority date. Ten days after Roster No. 1 has been filed the company" }, { "docid": "10352646", "title": "", "text": "it may, from time to time, establish such further departments and job classifications as may be necessary. Before new departments or classifications or changes in existing classifications are established, the Company shall meet with the Union and explain the changes and reasons therefor. The Company shall give a written explanation of the changes and reasons to the Union. The Company and the Union shall mutually agree to the rates to be paid for each classification and the seniority of the employee effected. If no mutual agreement is made, the Union may file a grievance and arbitrate the matter. That this was not the first time the parties disagreed over interpretation of 10(D) is clear from the inclusion in the agreement of article 34 — “Letters of Understanding.” That article provides, in part: “During the course of 1981 contract negotiations, Art. ... 10(D) . .. [was] .. . discussed and no agreement reached except to return to current contract language. The agreement reached above recognizes that the parties do not agree upon interpretation of the 1978-81 contract language and that this memo simply recognizes and confirms each party’s agreement to disagree and does not prejudice either party’s position.” Consolidated was not persuaded. On April 4, it implemented its plan. On the following day, the Union filed its complaint. On April 6, after hearing, the court ordered Consolidated to reinstate the sixteen laid-off employees and to return to the status quo ante pending arbitration. The court found that “the changes effected by ... [Consolidated] ... appear to be in violation of [a]rticle 10(D)” and that the “apparent breach” had occurred and would continue unless enjoined. It also found that: [Consolidated] ... will suffer little or none from issuance of an injunction pending arbitration requiring it to continue the operations as it has in the past. While such an order will reinstate laid-off employees, ... [Consolidated] ... will have the benefit of production from those persons. On the other hand, denial of the injunction will irreparably harm employees represented by ... [the Union] ... in that job opportunities and wages will be lost." }, { "docid": "11685353", "title": "", "text": "good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. H & D, Inc. v. NLRB, 665 F.2d 257, 259-60 (9th Cir.1980), rev’d on other grds., 455 U.S. 902, 102 S.Ct. 1243, 71 L.Ed.2d 440 (1982) (citations omitted). The Plan points to subjective criteria such as “contemporaneous understanding” to buttress its position that summary judgment should not be granted. But if undisputed evidence in the record would require a finding that “there was no realistic prospect that continuation of discussion at that time would have been fruitful,” id., then summary judgment is appropriate. British Airways Bd. v. Boeing Co., 585 F.2d 946, 950-51 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Since the Plan does not put in issue any of the facts produced by Schulze, the only question is whether these facts are sufficient to meet Schulze’s burden on summary judgment. The presentation and rejection of a final offer is a good indication of impasse. In Excavation-Construction, Inc. v. NLRB, 660 F.2d 1015, 1019-20 (4th Cir.1981), the employer had unilaterally imposed a policy of no overtime pay on Saturday unless the hours worked were in excess of 40 for the week. The NLRB found the employer guilty of refusal to bargain, an unfair labor practice. The court reversed, finding that an impasse existed: “The company had made its last and final offer which the union had voted to reject. At that point, it cannot be said that there was a realistic possibility that negotiations would be fruitful.” Id. In the present case, of course, the employer also made a final offer, at the union’s request, which was voted down by the members who then went on strike. The fact that progress had been made on some issues and that Schulze had shown flexibility on the pension issue does not necessarily indicate" }, { "docid": "13151136", "title": "", "text": "but they had to go to United States District Courts to get the order of reinstatement which most such claimants wanted. They could sue in the district court for money damages also under the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2), but if they did, they would have to waive any money claimed over $10,000. The Court of Claims held section 1500 did not bar the maintenance of both suits in this situation, explaining section 1500 was only intended to “require an election,” auoting Matson Nav. Co. v. United States, 284 U.S. 352, 355-56, 52 S.Ct. 162, 164, 76 L.Ed. 336 (1932), and deeming that the fired employee had no election and therefore section 1500 did not apply to him. That was a holding the claims were not the same because election was not possible. Here by Casman reasoning, the claimant, Johns-Manville, has no election either, because it cannot sue the United States on its tort claim in the Claims Court, or on its contract claim in any other court, in view of its magnitude. The court does not so reason because apparently it sees the Casman decision and its progeny as a sort of arbitrary happening inexplicable under the kind of analysis it deems the only kind possible. Casman is, however, cited and followed in Truckee-Carson Irrigation District, 223 Ct.Cl. 684 (1980). I see Casman as merely and simply Holmsian. The court herein professes to see a difference between claims based on the same “operative facts” if one seeks money relief and the other injunctive relief, that does not exist if one seeks contract relief and the other tort relief. The real explanation I fear is that the court construes the word “claims” in a manner unfavorable to the claimant because it elects to view the statute “strictly and with an adverse eye.” The court insists on repeating that the tort and contract claims of Johns-Manville against the government are “based on the same operative facts.” If the “operative facts” in this situation are the facts the claimant must prove to establish the claims, obviously they are not the" }, { "docid": "5946424", "title": "", "text": "State in 1966 through the agency now known as the Metropolitan Transportation Authority (the “MTA”), which continues to have day-to-day responsibility for the operation of the LIRR. The LIRR carries approximately 250,000 passengers each week day and is the only common carrier by rail serving the public and industries in Nassau and Suffolk Counties. While its physical operations are solely within New York State, it interchanges freight with more than a dozen interstate rail carriers and handles from 800-1000 freight cars per week. Its revenue from freight operations in 1979 was in excess of $12.1 million. These freight revenues have decreased steadily over the years and now provide a fraction of its total income, which is estimated at more than $300 million. The appellee United Transportation Union (the “UTU”) is one of seven collective bargaining representatives for the LIRR operating and train employees. On December 7,1979, as the parties were on the verge of exhausting the collective bargaining procedures provided by the Railway Labor Act, the UTU filed this suit in the Eastern District of New York seeking (1) a declaratory judgment that the relationship between the parties was governed by the RLA and that the employees could thus not be subjected to the sanctions of the Taylor Law in the event they engaged in self help; and (2) injunctive relief to protect those rights of the employees guaranteed by the Act, including an injunction against the commencement or prosecution of a state court action seeking to invoke the Taylor Law. The next day, the unions, including the UTU, went on strike. On December 14, 1979, a Presidential Emergency Board was established pursuant to § 10 of the RLA, 45 U.S.C. § 160, and the employees returned to work. Appellants moved to dismiss this action but before the motion was heard, on February 8, 1980, converted the LIRR from a private stock corporation to a public benefit corporation whose employees would be at least facially subject to the Taylor Law. On February 12, the UTU responded by moving for a temporary restraining order and preliminary injunctive relief restraining the defendants" }, { "docid": "16880114", "title": "", "text": "this court. In view of the above-quoted language of the Court of Appeals, I see no reason why this suit cannot be maintained. As stated by the Court of Appeals, the complaint shows great and irreparable damage to the plaintiff. The particular form of relief to which the plaintiffs may be entitled can be determined in final hearing.” No appeal was taken from this decision. The case of Klein v. Herrick, D. C., 41 F.Supp. 417, was a suit by the treasurer of a Labor Union against a Regional Director of the National Labor Relations Board, wherein plaintiff moved for an injunction pendente lite restraining defendant from carrying into effect or taking any proceedings under the decision and direction of election of the Board. Defendant moved to dismiss on the grounds that the court lacked jurisdiction of the subject matter, and that the complaint failed to state a cause of action entitling plaintiff to equitable relief. The court denied the application for an injunction and granted the motion to dismiss. In the course of an illuminating and instructive opinion, Judge Rif kind pointed out that, according to the complaint in the suit before him, the controversy had its root origin in the rivalry of two unions for the patronage of the employees of Presto Recording Corp.; that in 1939 plaintiff union was selected as the exclusive bargaining agent of said employees as the result of an election conducted under Section 9 (c) of the National Labor Relations Act; that on March 9, 1939, an agreement was made between the employer and plaintiff union in behalf of such employees upon the subject of collective bargaining for the term of one year, subject to renewal for an additional two-year period, and that through the exercise of the option to renew the contract had been extended to March 8, 1942; that after hearing the petition of a rival union for certification of a collective bargaining agent for said employees, the Board made a direction ordering an election among the latter; and that accordingly plaintiff union asked the court to restrain defendant from carrying" }, { "docid": "22855137", "title": "", "text": "in Whitfield only because it was rooted in the Negro employees’ lack of ability and training to take skilled jobs on the same basis as white employees. The fact that white employees received their skill and training in a discriminatory progression line denied to the Negroes did not outweigh the fact that the Negroes were unskilled and untrained. Business necessity, not racial discrimination, dictated the limited transfer privileges under the contract. Undoubtedly, Whitfield is applicable to the situation concerning supervisory employees at Philip Morris. Because of past discrimination, many Negroes, regardless of seniority, are not qualified for supervisory positions. The company cannot be required to promote them to supervisors to lessen the disproportion in the numbers of white and Negro persons holding these positions. Whitfield, however, is not controlling with regard to the agreement reached by the company and the union on transfers and departmental seniority. Promotion to truck driver, the job which Quarles sought, does not depend upon progression from one classification to another in the warehouse shipping and receiving department. The only qualifications are ability to drive a truck, departmental seniority and being white. Employees, whether they be Negro or white, need training to operate a machine in the fabrication department. While no case precisely on point appears to have been decided, the governing principles are not new. Present discrimination may be found in contractual provisions that appear fair upon their face, but which operate unfairly because of the historical discrimination that undergirds them. NLRB v. Local 269, IBEW, 357 F.2d 51 (3rd Cir. 1966). Departmental seniority rooted in decades of racially segregated departments can neither mask the duty of a union to fairly represent its members nor shield the employer who is privy to the union’s derelictions. Central of Georgia Railway Co. v. Jones, 229 F.2d 648 (5th Cir. 1956), cert. den., 352 U.S. 848, 77 S.Ct. 32, 1 L.Ed.2d 59 (1956). The court finds that the defendants have intentionally engaged in unlawful employment practices by discriminating on the ground of race against Quarles, and other Negroes similarly situated. This discrimination, embedded in seniority and transfer provisions" }, { "docid": "6318023", "title": "", "text": "announced that it would be present at the hearing only to see that the contract provisions were not altered. It is not clear from the affidavits, inter rogatories, and depositions whether the attorney was hired as a result of the Union’s refusal to represent plaintiff but the plaintiff so alleges in his complaint. There are several alleged defects in the manner of selection of the arbitrator and the conduct of the hearing, which will be discussed in a later part of this opinion. The arbitrator issued his award on September 21, 1965, holding that the discharge was for sufficient and just cause. A motion was filed with the arbitrator on March 28, 1966 for reconsideration which was denied. Neither the plaintiff nor the Union attempted any appeals or attempted to have the award vacated until the filing of this case on September 19, 1966. On October 4, 1965 the International President of the Union ruled that plaintiff should be reinstated as a committeeman, but plaintiff claims this was never accomplished. Plaintiff’s complaint contains five “counts”. Count I seeks to vacate the arbitration award. Count II seeks damages and injunctive relief against the Union for a breach of its duty of fair representation in the grievance procedure and arbitration. Count III alleges that the Union and the company conspired to prevent him from continuing his employment and from being reinstated to his position as committeeman. Count IV seeks damages and injunctive relief against the company and Union for conspiring to have him removed from his office in the Union. Count V seeks a mandatory injunction directing defendants not to destroy any evidence or threaten witnesses, with regard to any of the matters alleged in the first four counts. The company has filed a motion to dismiss with respect to the first count, and a motion for a summary judgment with regard to the last four, or in the alternative, a motion to dismiss. The Union has also moved to dismiss the complaint, while plaintiff has moved for summary judgment against both defendants. The rulings on these motions have been delayed considerably" }, { "docid": "17247586", "title": "", "text": "proceedings in equity to restrain violations of that act. 15 U.S.C.A. § 4. Paine is not unique in its bolding that, where a statute charges a public official with its enforcement, private persons may not maintain an action based upon that statute. See, e. g., Meyercheck v. Givens, 180 F.2d 221 (7th Cir. 1950) (only Housing Expeditor may secure injunction against violations of Housing and Rent Act); Johnson v. San Diego Waiters Union, 190 F.Supp. 444 (S.D.Cal.1961) (only Secretary of Labor may sue to set aside union election); International Longshoremen’s Union etc. v. Sunset Line & Twine Co., 77 F.Supp. 119 (N.D.Cal.1948) (only NLRB may secure injunctive relief pending adjudication of unfair labor practice charges). The Dealer’s Day in Court Act, however, confers no duties on public officials; it deals solely with the rights of private parties inter se. . In the context of whether a given statute makes the issuance of an injunction mandatory upon a showing of certain facts, however, it has been said that “courts are not to presume a legislative intention to rigidify the traditionally flexible equity practice of granting or withholding injunctive relief in the exercise of sound judicial discretion.” Esquire, Inc. v. Esquire Slipper Mfg. Co., 243 F.2d 540, 544 (1st Cir. 1957), citing Hecht Co. v. Bowles, 321 U.S. 321, 330, 64 S.Ct. 587, 88 L.Ed. 754 (1944). . Throughout the Senate debate on the bill, there were various statements that the statute would write into dealer-manufacturer contracts a term which had not existed previously. Thus, Senator Allott, in discussing possible constitutional objections to the act, said: “The bill would incorporate in the franchise a term, a condition, and a right, as the report of the committee says, which did not previously exist.” 108 Cong.Rec. 10577 (1956). And Senator Kefauver referred to the bill as one “which sets forth the method and the way the contracts between the automobile companies and the dealers shall be carried out.” Id. at 10569." }, { "docid": "5417182", "title": "", "text": "MEMORANDUM OPINION GLEN M. WILLIAMS, District Judge. Plaintiff, Little Six Corporation, brought this suit in the Circuit Court of Dickenson County, Virginia seeking temporary and permanent injunctive relief and a declaration that the defendant, United Mine Workers of America, Local Union No. 8332, is precluded from seeking arbitration on the present grievance by virtue of an arbitrator’s award to the Company in a previous grievance procedure. Upon the state court’s entry of an order granting temporary injunctive relief, the Union removed the present case from state court pursuant to 28 U.S.C. § 1441. The case is presently before the Court on the Union’s motion to dissolve the state court injunction enjoining arbitration. However, it appears to the court that the state court injunction expired of its own terms on January 27, 1981. Therefore, the court will treat this case in the posture of the Company’s motion for permanent injunctive and declaratory relief. Original jurisdiction of this action rests with the Court by virtue of Section 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C. § 185. The Court has held an evidentiary hearing in this matter from which the facts of this case were presented by both parties. Closely related to the grievance which is the subject of this action is a previous grievance filed by certain members of UMWA, District 28, Local 8332, on July 15, 1980. All of the grievants are former long-term employees of Contracting Enterprises, a coal mining enterprise. During the summer of 1980, the management of Contracting Enterprises decided to close a mine that the company had been operating, and each grievant was laid off. Subsequently, the plaintiff, Little Six Corporation hired younger employees of the Contracting Enterprise mine to work at a strip mining site some 30 miles from the Contracting Enterprises mine site. Alleging that Contracting Enterprises and Little Six Corporation were the “same company” under Article XVII, Section (k) of the National Bituminous Coal Wage Agreement of 1978, the Union contended that the grievants were entitled to seniority rights at the Little Six Corporation mine site upon being laid" }, { "docid": "22855142", "title": "", "text": "seasonal employees from permanent employees. Negroes hired directly into the fabrication or warehouse shipping and receiving departments or who transferred under the six-months rule are not members of the class because no discrimination has been practiced against them. On the other hand, Negro employees who transferred under a note of intent to fabrication or to warehouse shipping and receiving are included because they were required to relinquish employment seniority, and were placed at a disadvantage with respect to white employees hired into these departments under the company’s former discriminatory hiring policy. Negroes hired after January 1, 1966 are not included in the class. Since that time the company has hired employees in all of its departments on a nondiscriminatory basis. Thus, even though Negro employees hired in the prefabrication department after January 1, 1966 have limited transfer privileges, these restrictions are not unfair employment practices. The departmental seniority status of Negroes hired after January 1, 1966 is predicated on a bona fide seniority system that did not result from an intention to discriminate on the ground of race. The departmental seniority rights of white employees in the fabrication department are not vested, indefeasible rights. They are expectancies derived from the collective bargaining agreement, and are subject to modification. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Pellicer v. Brotherhood of Railway and Steamship Clerks, 217 F.2d 205 (5th Cir. 1954); cert. den., 349 U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1246 (1955). In Central of Georgia Railway Co. v. Jones, 229 F.2d 648, 649 n. 3 (5th Cir. 1956), cert. den., 352 U.S. 848, 77 S.Ct. 32, 1 L.Ed.2d 59 (Í956), the court affirmed a decree that invalidated white and Negro lines of seniority, and enjoined the union and the company from enforcing contractual or operating practices which denied Negroes the right to compete and train for brakeman and other jobs. The decree affirmatively required the union and company to grant “the same seniority rights, training privileges, assignments, and opportunities" }, { "docid": "21483621", "title": "", "text": "HUTCHESON, District Judge. The National Labor Relations Board (hereinafter called the Board) seeks enforcement of an order entered by it on February 11,1964 requiring the respondent, Bonnie Enterprises, Inc., to recognize Local 305, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (hereinafter called the Union) as the exclusive bargaining representative of all its meat department employees at the retail stores of Respondent located in Virginia, as the result of an election held by the Board on February 14, 1963. Respondent filed timely objections to the conduct of the election and the order here involved was entered adverse to Respondent’s contentions. The controversy involves two issues: (1) Whether the campaign literature issued by the Union warranted setting aside the election; and (2) whether the ballots of certain voters should not be counted because of the asserted supervisory status of those voters. The Campaign Literature. On election day and on the preceding day the Union distributed to employees a circular which reads as follows: HANDBILL #2 The provisions listed below are the Union’s program and are in all Meat Cutters contracts in this and other areas. 1. Vacation: 1 week after one year’s service 2 weeks after three years’ service 3 weeks after ten years’ service 4 weeks after twenty years’ service 2. Six paid holidays: New Year’s Day Memorial Day Fourth of July Labor Day Thanskgiving Day Christmas'Day 3. Group Life Insurance for the employee and his family as well as Sick Pay for time lost for sickness. 4. Pension Plan. 5. Time and one-half (1%) pay for all hours over forty (40) hours in any week. 6. Time and one-half (1%) pay for all hours worked on a holiday plus the holiday pay. 7. Time and one-half (1%) for all hours worked on Sundays. 8. A grievance procedure, which means that the Company cannot push you around to suit themselves. 9. Two (2) fifteen (15) minute paid coffee breaks each day. 10. Seniority: Which means that the Company cannot shove you all over the map to suit themselves. 11. All uniforms are furnished and laundered by the Company." }, { "docid": "23663050", "title": "", "text": "(U.S. June 25, 1985) (No. 84-1936). The non-moving party' receives the benefit of all inferences that may reasonably be drawn in his favor. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). A moving party may file affidavits in support of his motion for summary judgment and shift to the non-moving party the burden of showing that an issue of material fact exists. Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir.1982) (citing Faulkner v. Baldwin Piano & Organ Co., 561 F.2d 677, 683 (7th Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978)); Fed.R.Civ.P. 56(c). While the non-moving party may not avoid summary judgment by baldly asserting the existence of a disputed question of fact, Atchison, Topeka and Santa Fe Railway Company v. United Transportation Union, 734 F.2d 317, 320 (7th Cir.1984) (citations omitted), the Federal Rules do not require him to submit any evidence in opposition to a motion for summary judgment. Failure to submit such evidence “leads only to the court’s acceptance as true of the facts set forth in the [movant’s] affidavits....” Wang v. Lake Maxinhall Estates, Inc., 531 F.2d 832, 835 n. 10 (7th Cir.1976) (citations omitted). The court has no obligation to comb the record for evidence contradicting the movant’s affidavits. Lawson v. Sheriff of Tippecanoe County, Indiana, 725 F.2d 1136, 1139 (7th Cir.1984). In the instant case, Mrs. Kaszuk’s affidavits and deposition indicate that Mr. Kaszuk thought that he had provided for Mrs. Kaszuk in the event of his death before retirement, and that he would have elected the pre-retirement husband-and-wife pension if the Fund had given him proper notice. In the absence of any opposing evidence from the Fund, the district court properly granted summary judgment to Mrs. Kaszuk on the questions of actual notice and of Mr. Kaszuk’s election if properly notified. Issue IV. Whether the district court properly granted injunctive relief. When the Fund filed its original notice of appeal, many matters remained before the district court. At best, the Fund had appealed an interlocutory order pursuant to 28 U.S.C. § 1292; at worst, the Fund" }, { "docid": "12804205", "title": "", "text": "McILVAINE, District Judge. This case is before the Court on petition of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq, for enforcement of its order issued against Newspaper & Mail Deliverers’ Union of New York & Vicinity, Respondent, hereinafter called the Union, on May 16, 1956. The employer in this case, the Passaic County News Co, Inc, uses two types of employees in its business of wholesale distribution of newspapers and periodicals. It employs men known as regular situation holders for steady full-time jobs. In addition, to meet varying demand, it hires so-called “extras” on a day-to-day basis. The latter present themselves at the company plant in search of work, the arrangement being known as a shape-up. The employer here is a party to a Wholesaler’s Association contract made with the Union on February 1, 1955, and running until January 31, 1957. Under the provisions of this contract any employee receiving 5 days’ work a week for a period of 5 consecutive weeks shall become a regular situation holder and be listed on the company seniority and priority list in accordance with his length of service. And in general under this contract, seniority is a governing factor in the hiring of extras, and except for considerations of union membership, it has been the company policy in hiring extras to give jobs to applicants in the shape-up on the basis of seniority. However, early in 1955, William Walsh, the Union’s business agent, called at the company plant and told John Fylstra, the president and general manage;: of the company, that a union card must give its possessor in a shape-up the first right to go to work. This admonition by Walsh to Fylstra had been repeated on several occasions and in March of 1955, Walsh instructed Night Foreman Alexander Herald that Union men come first in hiring extra help. Walsh also told the Day Foreman John Smith in June that whenever possible he wanted union men to be used. The company failed to hire one Philip" }, { "docid": "5494331", "title": "", "text": "ORDER ROSENBAUM, District Judge. Plaintiffs in this putative class action lawsuit move for class certification, pursuant to Rule 23, Federal Rules of Civil Procedure (Fed.R.Civ.P.), alleging discrimination on the basis of gender, in violation of both Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Minnesota Human Rights Act, Minnesota Statutes, §§ 363.01-.15. At the same time, plaintiffs seek a preliminary injunction directing defendants to adopt and enforce a policy for the prevention of sexual harassment. Finally, plaintiffs move to consolidate consideration of the class issues with trial on the merits. The Court heard this matter over the course of seven days between May 13, 1991, and June 3, 1991. For the reasons set forth herein, plaintiffs’ motion is granted in part and denied in part. I. Background The named defendants include Eveleth Taconite Company, Eveleth Expansion Company, Oglebay Norton Company, and Oglebay Norton Taconite Company (collectively, “Eveleth Mines”). Eveleth Mines owns and conducts a taconite mining operation in Eveleth, Minnesota. Defendant United Steel Workers of America is the certified bargaining representative of a unit of Eveleth Mines employees. Plaintiffs press no separate claims against the union which is joined as a defendant for the sole purpose of obtaining full equitable relief. Amended Complaint, at 3. Plaintiff Lois Jenson was hired by Evel-eth Mines in March, 1975, and remains employed there to this date. Plaintiff Kathleen O’Brien Anderson was hired at Eveleth Mines in July, 1976, and continues her employment today. Plaintiff Patricia Kosmach was employed at Eveleth Mines from January, 1976, through October, 1988. All three women worked as laborers. Plaintiffs charge that Eveleth Mines engages in a pattern of discriminatory practices, including discrimination in hiring, job assignment, discipline, promotion, and compensation. Plaintiffs also allege gender discrimination based on environmental sexual harassment—a hostile work environment. Plaintiffs seek damages, injunctive relief, and attorneys’ fees. II. Analysis—Class Action Motion Pursuant to Rules 23(a) and 23(b)(2), Fed. R.Civ.P., plaintiffs seek to certify and represent a class of: All women who have been employed by, applied for employment with, or were deterred from applying for" }, { "docid": "23649693", "title": "", "text": "before August 6, 1969, and suit was not filed until October 13, 1970, over fourteen months later. The parties agree that 7 Code of Alabama § 26 applies; it prescribes a one-year limitation period for “Actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated.” The First Circuit has held that the state statute of limitations for tort actions should apply to fair representation actions and has persuasively rejected an attempt to characterize a fair representation suit as a contract action. De Arroyo v. Sindicato De Trabajadores Packing House, AFL-CIO, 1st Cir. 1970, 425 F.2d 281, 285-289; see also Tippett v. Liggett & Myers Tobacco Co., N.D.N. C.1970, 316 F.Supp. 292, 297-298. We are in accord with this approach and agree that the Alabama one-year statute is the applicable one for this type of case. The Union’s limitations argument must fail, however, for two reasons. First, the acts and omissions of the Union of which Sanderson complained did not all take place before August 6, 1969. One of the most important aspects of the Union’s alleged breach of its duty of fair representation was its failure to process Sanderson’s grievance after his October 20, 1969, seniority lay-off. This part of the alleged breach of duty necessarily took place after October 20, 1969, less than one year before suit against the Union was filed on October 13, 1970. Secondly, the Alabama one-year statute “begins to run when the injury happens or damage accrues, and not from the date of the act causing the injury or damage.” Brotherhood of Locomotive Firemen & Engineermen v. Hammett, 1962, 273 Ala. 397, 140 So.2d 832; accord Central Georgia Railway v. Jones, 5th Cir. 1956, 229 F.2d 648, cert. denied, 352 U.S. 848, 77 S.Ct. 32, 1 L.Ed.2d 59. In this case the limitation period began to run on October 20, 1969, the date of Sanderson’s seniority lay-off, less than one year before suit was filed on October 13, 1970. Thus, the statute of limitations will not bar retrial of the action against the Union on" } ]

[ { "docid": "12261909", "title": "", "text": "a new motion to reopen his deportation proceedings and on April 5, 1979, he refiled that motion. In it, he alleged that he had newly discovered evidence to prove the termination of his prior marriage and attached various letters from his brother in Ghana, a letter from the Ghanaian Embassy, and an affidavit from his Ghanaian wife. The motion was denied by the immigration judge and that denial was affirmed by the Board of Appeals which stated: [DaBaase] and his wife have known that proof of termination of [his] prior marriage was necessary since the visa petition was initially denied on September 12, 1973. They have known what evidence we would accept as proof of termination of that marriage since October 1, 1976. They now come forward seeking to reopen these proceedings for consideration of an affidavit which we have previously indicated is insufficient * * *. Accordingly, no legitimate purpose would be served by reopening the proceedings. In re DaBaase, [ AXX XXX XXX ] — St. Louis, slip op. at 2 (Bd. of Immigration App. May 14, 1979) (citation omitted). We, too, are satisfied that DaBaase’s offer of proof failed to satisfy the requirements detailed in the Board of Appeals ruling of October 1, 1976. The letters from DaBaase’s brother only serves the purpose of detailing his efforts to secure various forms of evidence. The letter from the Ghanaian Embassy establishes that the Ghana Government recognizes tribal marriage and divorce customs, but expressed no opinion on whether DaBaase was or was not divorced. Finally, the conclusory affidavit of DaBaase’s Ghanaian wife asserted only that she had been “divorced [from] her husband Francis A. DaBaase under the Ghanaian Tribal Native Customs Divorce, since February, 1972.” None of the proffered evidence established what tribe DaBaase belonged to, what the current tribal custom was, or whether the pertinent ceremonial procedures were followed. Thus, there was no reason to reopen the proceedings. DaBaase contends before us that the Board abused its discretion in failing to require that the case be reopened and that its evidentiary requirement was unconstitutionally vague. We have thoroughly" } ]

[ { "docid": "5261982", "title": "", "text": "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 are ordinarily to be reopened when a prima facie approvable visa petition and adjustment application have been submitted. Id. at 656. It would be an abuse of discretion for the BIA to fail to follow Garcia consistently. Israel v. INS, 785 F.2d 738 (9th Cir.1986). Garcia, however, is no longer the policy of the BIA. The Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639,100 Stat. 3537, and the Immigration Act of 1990, Pub.L. No. 101-649,104 Stat. 4978, amended the immigration laws to require that a spouse seeking adjustment of status must either reside outside of the United States for two years or establish by clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of immigrating to the United States. 8 U.S.C. §§ 1154(h), 1255(e). After these amendments, the BIA decided that it was no longer justified in assuming that an application for adjustment of status based on a marriage constituted a prima facie showing that a party moving to reopen proceedings is entitled to relief." }, { "docid": "7871311", "title": "", "text": "ARNOLD, Circuit Judge. After an immigration judge denied Mohammed Thimran’s request for a continuance and voluntary departure and ordered him removed, he appealed to the Board of Immigration Appeals. The BIA affirmed the IJ’s order and Mr. Thimran then filed this petition for review. We deny the petition. Mr. Thimran, a native and citizen of Yemen, was lawfully admitted to the United States as a nonimmigrant. He overstayed his visa and married Nafeesah Lawrence Brooks, a United States citizen. When a resident alien marries a U.S. citizen, the citizen spouse may file a Form I-130, Petition for Alien Relative, to acquire an “immediate relative” visa for the alien spouse, see 8 U.S.C. §§ 1151(b)(2)(A)®, 1154(a)(1)(A)®; 8 C.F.R. § 204.1(a)(1); if the petition is approved, the alien may then apply to become a lawful permanent resident, see 8 U.S.C. § 1255(a). The Department of Homeland Security will not approve an 1-130 petition unless the claimed relationship is verified; to establish a spousal relationship, the petitioner must provide documentation, including proof that any previous marriages of the petitioner or beneficiary have been legally terminated. See 8 U.S.C. § 1154(b); 8 C.F.R. § 204.2(a). Ms. Brooks filed an 1-130 petition on behalf of Mr. Thimran, but officials at the United States Embassy in Yemen determined that a divorce certificate that Mr. Thimran had provided was not authentic. The embassy officials also advised that even though Mr. Thimran’s birth certificate was a genuine Yemeni document, it could not be relied upon as the sole basis of any claim of identity, relationship, or civil status, since corruption in the Yemeni government was widespread. Mr. Thimran now concedes that the divorce certificate was not authentic but maintains that a private agency provided both that document and the birth certificate to him and that he had believed the agency’s representations that the certificates were authentic and reliable. Based on the embassy’s report, a District Director of the United States Citizenship & Immigration Service (part of DHS) concluded that Ms. Brooks had not established that Mr. Thimran’s previous marriage was legally dissolved and thus could not prove that" }, { "docid": "20817835", "title": "", "text": "decision of the immigration judge to the Board of Immigration Appeals (BIA). See generally 8 C.F.R. § 3.1(b)(2) (1976). Liu contended that inasmuch as the INS had “unjustifiably refused to act” upon an immediate relative visa petition filed on his behalf, the immigration judge should have corrected that injury by granting Liu a “conditional termination of [the deportation] proceedings.” Liu did not point to nor could the BIA find any provision in the immigration statutes or in the pertinent regulations that would authorize an immigration judge to adjudicate a visa petition or to grant extended voluntary departure, the closest analogue to the “conditional termination of proceedings” sought by Liu. Accordingly, in April 1978 the BIA dismissed Liu’s appeal by written order and reinstated the privilege of voluntary departure for an additional thirty days. Liu did not take an appeal to this court from that adverse decision. II. Along a second procedural route, albeit with considerable chronological overlap, Liu employed other means in his quest to remain in this country. In May 1975 he married Peggy Joyce Mitchell, a citizen of the United States. In October of that year, after some delay in acquiring divorce certificates from her three or four previous marriages, Mrs. Liu filed an immediate relative visa petition (Form 1-130) on behalf of her new husband, Te Kuei Liu. See generally 8 U.S.C. §§ 1151(b), 1154, 1204 (1976); 8 C.F.R. § 204.1(a) (1975). In September 1976, an interview was conducted by the INS with Liu and his wife. The adjudicator determined that the petitioner could speak little or no Chinese and the beneficiary could speak little or no English. An investigation was therefore ordered into the bona fides of Liu’s marriage. An INS criminal investigator subsequently questioned Mrs. Liu, who was residing in Houston, Texas, and determined that Mr. Liu was living in Galveston, Texas, for the stated purpose of being closer to his work. Record memoranda also indicate some discussion of the possibility that Liu was using petitioner to gain residency in the United States, but that Mrs. Liu was unwilling to withdraw her petition because she" }, { "docid": "13002308", "title": "", "text": "when “the marriage shall have been consummated.” Plaintiffs here were united by a marriage ceremony, they were present at that ceremony, and the marriage was consummated. Second. The Service’s interpretation is unsupported by its own and the Department of Justice’s regulations. No rule or regulation issued by the Attorney General or the Immigration and Naturalization Service requires the existence of a “viable” marriage as a precondition to the grant of immediate relative status. To the contrary, 8 C.F.R. § 204.2(2) implies that no such precondition exists for it requires only that “a petition [for classification to immediate relative status] submitted on behalf of a wife or husband . . . must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both husband and wife” — requirements that, too, were met in the instant case. Likewise, 8 C.F.R. § 205.1(a)(4) quite appropriately conditions the revocation of a petition merely upon the “legal termination” of the relationship of husband and wife, not upon any assumed dissolution of the marriage by reference to a standard not known to the law of domestic relations. Third. There is no support for defendant’s interpretation in the judicial case law. The only court to date to construe a provision similar to the one at issue here squarely determined the Service’s construction to be in error. In Whetstone v. Immigration and Naturalization Service, 561 F.2d 1303 (9th Cir. 1977), the U.S. Court of Appeals for the Ninth Circuit was faced with construing 8 U.S.C. §§ 1101(a)(15)(K) and 1184(d), the statutes governing admission of fiances of United States citizens. If anything, those particular provisions are more hospitable to the Service’s position than the section here involved, for section 1184(d) (the “fiance” section) expressly refers to the parties’ “bona fide intention to marry” and to their actual willingness “to conclude a valid marriage,” while no comparable language can be found in the “immediate relative” provisions of the immigration laws. Nevertheless, the court rejected arguments similar to those advanced by the Service in the instant case, holding (561 F.2d" }, { "docid": "5261983", "title": "", "text": "are ordinarily to be reopened when a prima facie approvable visa petition and adjustment application have been submitted. Id. at 656. It would be an abuse of discretion for the BIA to fail to follow Garcia consistently. Israel v. INS, 785 F.2d 738 (9th Cir.1986). Garcia, however, is no longer the policy of the BIA. The Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639,100 Stat. 3537, and the Immigration Act of 1990, Pub.L. No. 101-649,104 Stat. 4978, amended the immigration laws to require that a spouse seeking adjustment of status must either reside outside of the United States for two years or establish by clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of immigrating to the United States. 8 U.S.C. §§ 1154(h), 1255(e). After these amendments, the BIA decided that it was no longer justified in assuming that an application for adjustment of status based on a marriage constituted a prima facie showing that a party moving to reopen proceedings is entitled to relief. In re Arthur, Interim Dec. 3173, 1992 WL 195807, 1992 BIA LEXIS 8 (BIA, May 5, 1992). The BIA explained that [a]n inquiry into whether the evidence submitted in support of a visa petition is sufficient, in light of the heavy burden imposed on the petitioner, to demonstrate prima facie eligibility for the preference sought would necessarily involve an in-depth examination into the merits of the petition. Such examination would, in our view, constitute a substantial and unwarranted intrusion into the district director’s authority over the adjudication of visa petitions. In light of the foregoing discussion, we shall hereafter decline to grant motions to reopen for consideration of applications for adjustment of status based upon unadjudi-cated visa petitions which fall within [8 U.S.C. §§ 1154(g), 1255(e) ]. Id. (citation omitted). It is clear that Arthur, and not Garcia, is now the established policy of the BIA. Under Arthur, Petitioner’s motion to reopen was properly denied. Petitioner realizes that Arthur controls and argues that the precedent set in that case, and the Board’s decision in his" }, { "docid": "2136743", "title": "", "text": "PREGERSON, Circuit Judge: Petitioner Imelda Napuli Israel seeks review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal from a decision by an immigration judge (IJ) denying her motion to reopen her deportation proceedings. Israel sought to reopen the proceedings to apply for adjustment of status based on her marriage to a United States citizen. See 8 U.S.C. §§ 1151(b), 1255. We have jurisdiction under' 8 U.S.C. § 1105a(a). We grant the petition and remand. BACKGROUND Israel, a Philippine national, entered the United States legally as a temporary worker in December 1982, with permission to remain and work until September 9, 1983. After repeatedly seeking an extension, Israel overstayéd her visa, and the Immigration and Naturalization Service (INS) took her into custody on September 19, 1983. On September 20, in a telephonic bond-reduction and deportation hearing, Israel conceded deportability, and the IJ granted her 30 days to depart voluntarily, based partly on her promise not to marry a United States citizen during that time. Eleven days later, on October 1, petitioner married Jose Din Israel, a serviceman in the United States Navy and a United States citizen. They had been seeing each other for several months before the deportation hearing. On October 14, Israel’s husband filed a visa petition on her behalf, and Israel filed a motion to reopen her deportation hearing to allow consideration of her application for adjustment of status. The IJ denied the motion to reopen because he considered Israel guilty of “a breach of faith and a misrepresentation to the Court.” The BIA dismissed her appeal on the ground that neither the equity inherent in her marriage nor the hardship to her citizen spouse was entitled to much weight, because the marriage took place after Israel had been found deportable. Israel contends that the BIA acted arbitrarily in dismissing her appeal because her case is not factually distinguishable from Matter of Garcia, 16 I. & N. Dec. 653 (BIA Í978), where the BIA established a policy of granting reopening in cases like hers. STANDARD OF REVIEW We review BIA denials of motions" }, { "docid": "22400566", "title": "", "text": "INS to argue that Onyeme’s marriage to Jacobsen was not legal, despite an IJ’s decision in previous rescission proceedings that Onyeme’s marriage to Jacobsen was legal; and upholding the deportation order where the INS failed to conduct a prompt investigation of the validity of the Nigerian court decree stating that Onyeme was not married in Nigeria. II. Whether to grant a motion to continue deportation proceedings is within the sound discretion of the IJ and is reviewed for abuse of discretion only. See Hassan v. INS, 110 F.3d 490, 492 (7th Cir.1997); see also Bull v. INS, 790 F.2d 869, 871 (11th Cir.1986) (holding denial of continuance to be an abuse of discretion). Accordingly, when reviewing the BIA’s decision upholding the IJ’s discretionary action, “we ... uphold the BIA’s decision ‘unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular race or group.’ ” Hassan, 110 F.3d at 492 (quoting Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir.1993)). A. Onyeme first argues that the BIA committed reversible error when it upheld the IJ’s denial of his motion to continue his deportation proceedings pending the resolution of Jacobsen’s second immigrant visa petition filed on Onyeme’s behalf. Under INS regulations, an IJ may grant a motion for a continuance in a deportation proceeding upon an alien’s showing of “good cause.” See 8 C.F.R. § 3.29 (1997). In order to evaluate whether the IJ abused its discretion in denying Onyeme’s motion for a continuance, it is first necessary to understand the significance of the visa petition to Onyeme’s quest to obtain permanent residency. We begin, then, with a brief explanation of the steps an alien such as Onyeme must take, in the absence of deportation proceedings, to have his status adjusted to that of permanent resident. First, because Onyeme is relying on his status as spouse of a United States citizen, Onyeme’s spouse, Jacobsen, must successfully petition for an immediate relative immigrant visa on Onyeme’s behalf under 8 U.S.C. § 1153(a)(2). Second, either simultaneously or" }, { "docid": "13002307", "title": "", "text": "legal separation have been instituted. Nevertheless, and in spite of the fact that plaintiffs’ marital relationship has never been dissolved and that they clearly meet the literal requirements of the law, the Board of Immigration Appeals, relying on its own earlier decision in Matter of Sosa, Interim Decision 2469 (BIA 1976), decided that the Chans’ marriage was “nonviable,” that sections 1151(b) and 1154(b) therefore do not apply, and that their petition would not be approved. For a number of reasons, the Board’s construction of the law is plainly wrong. First. There is no support for defendant’s interpretation in the language of the Statute. Section 1154(b) explicitly directs the Attorney General to grant immediate relative status to the spouse of an American citizen, without any reference whatever to marriage viability or solidity. Indeed, section 1101(a)(35) of title 8, U.S. Code, the definitional section, excludes from the definition of “spouse” only those situations “where the contracting parties [to the marriage ceremony] are not physically present in the presence of each other,” and even that condition is waived when “the marriage shall have been consummated.” Plaintiffs here were united by a marriage ceremony, they were present at that ceremony, and the marriage was consummated. Second. The Service’s interpretation is unsupported by its own and the Department of Justice’s regulations. No rule or regulation issued by the Attorney General or the Immigration and Naturalization Service requires the existence of a “viable” marriage as a precondition to the grant of immediate relative status. To the contrary, 8 C.F.R. § 204.2(2) implies that no such precondition exists for it requires only that “a petition [for classification to immediate relative status] submitted on behalf of a wife or husband . . . must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both husband and wife” — requirements that, too, were met in the instant case. Likewise, 8 C.F.R. § 205.1(a)(4) quite appropriately conditions the revocation of a petition merely upon the “legal termination” of the relationship of husband and wife, not upon any assumed" }, { "docid": "21637953", "title": "", "text": "strict standards for making this determination. See Systronics Corp. v. INS, 153 F.Supp.2d 7, 11-12 (D.D.C.2001); accord ANA Int’l, Inc. v. Way, 242 F.Supp.2d 906 (D.Or.2002) El-Khader argues only that the broad statutory language of § 1155 is limited by INS precedent establishing that revocation of a visa petition is only appropriate when the petition should not have been approved in the first place, which, he contends, is not a discretionary decision. See Matter of Tawfik, 20 I. & N. Dec. 166 (BIA 1990); Matter of Estime, 19 I. & N. Dec. 450 (BIA 1987). Moreover, he notes that 8 U.S.C. § 1154(c) dictates that “no petition shall be approved if’ the petitioning alien has previously committed a marriage fraud in an attempt to secure an immigration benefit. El-Khader argues that the INS’s decision was not discretionary because the INS revoked his visa petition based on its finding that he committed a marriage fraud by entering into a marriage for purposes of procuring an immigration benefit. El-Khader contends that this finding nullifies the INS’s discretion because the INS is prohibited from issuing a visa petition to anyone who has committed a marriage fraud for immigration purposes. El-Khader’s argument is misguided. It is true that the INS has regulations requiring that there must be “substantial and probative” evidence of marriage fraud to deny a petition on these grounds. See Ghaly v. INS, 48 F.3d 1426, 1436 (7th Cir.1995) (Posner, C.J., concurring) (citing 8 C.F.R. § 204.2(a)(1)(ii)). Nevertheless, these regulations are inapplicable in those instances where the INS, acting under the authority of the Attorney General, chooses to exercise its discretion in revoking a visa under § 1155 after a petition for that visa has already been granted. Likewise, the fact that the INS is required to deny petitions to those who have committed marriage fraud for immigration purposes in no way limits the discretionary status of the Attorney General’s subsequent revocation under § 1155 of a granted petition that, it turns out, should have never been made in the first instance. No statutory or regulatory mandate exists requiring the Attorney General" }, { "docid": "7871312", "title": "", "text": "petitioner or beneficiary have been legally terminated. See 8 U.S.C. § 1154(b); 8 C.F.R. § 204.2(a). Ms. Brooks filed an 1-130 petition on behalf of Mr. Thimran, but officials at the United States Embassy in Yemen determined that a divorce certificate that Mr. Thimran had provided was not authentic. The embassy officials also advised that even though Mr. Thimran’s birth certificate was a genuine Yemeni document, it could not be relied upon as the sole basis of any claim of identity, relationship, or civil status, since corruption in the Yemeni government was widespread. Mr. Thimran now concedes that the divorce certificate was not authentic but maintains that a private agency provided both that document and the birth certificate to him and that he had believed the agency’s representations that the certificates were authentic and reliable. Based on the embassy’s report, a District Director of the United States Citizenship & Immigration Service (part of DHS) concluded that Ms. Brooks had not established that Mr. Thimran’s previous marriage was legally dissolved and thus could not prove that her marriage to him was valid. The Director further determined that “the submission of fraudulent documents [sic] clearly demonstrates that [Ms. Brooks’s] marriage to Mr. Thimran was entered into for the purpose of committing marriage fraud and evading the immigration laws.” See 8 U.S.C. § 1154(c). DHS therefore denied Ms. Brooks’s 1-130 petition. DHS then charged Mr. Thimran with being removable under 8 U.S.C. § 1227(a)(1)(A), as an alien who had sought to procure a visa by fraud or by willfully misrepresenting a material fact, see 8 U.S.C. § 1182(a)(6)(C)(i), and under § 1227(a)(1)(B), as an alien who was admitted as a nonimmigrant but remained longer than permitted. Shortly thereafter, Ms. Brooks filed a second 1-130 petition on Mr. Thimran’s behalf, accompanied by new documents obtained directly from the Yemeni government. Mr. Thimran appeared on the removability charges, and the IJ granted him a continuance and then another. Mr. Thimran later conceded that he was removable for overstaying his visa but maintained that he was not removable for fraud. The IJ continued the case four" }, { "docid": "22793039", "title": "", "text": "to produce her or any other witnesses at the deportation hearing. Matter of Agyeman, No. [ AXX-XXX-XXX ]-Eloy, slip op. at 2 (BIA Mar. 16, 1999). Therefore, the BIA ruled, Agyeman “failed to establish his marriage to a United States citizen for purposes of adjustment of status.” Id. At the outset, we note that Levy’s attendance and testimony at the deportation hearing was not a statutory prerequisite for adjustment of status. On the face of the statute and accompanying regulations, Agyeman was only required to provide sufficient evidence of his bona fide marriage to a United States citizen. Yet, this was never explained to him. He was simply told that she must be there or his application would be denied. For a full understanding of what was legally required, we turn to a discussion of the statutory and regulatory framework governing the adjudication of adjustment of status applications based on marriage to a United States citizen. a. Statutory and Regulatory Framework Section 245 is the proper statutory framework for adjudicating an application for adjustment of status filed by an alien in deportation proceedings. 8 C.F.R. §§ 240.1(a)(1)(h), 240.11(a)(1) (2001). The IJ has exclusive jurisdiction to decide the adjustment of status application. 8 C.F.R. § 245.2(a)(1) (2001). However, only the INS may adjudicate the underlying I 130 visa petition. 8 C.F.R. § 204.1(e) (2001); Dielmann v. INS, 34 F.3d 851, 854 (9th Cir.1994). Under Section 245, an alien may be eligible for adjustment of status if, among other prerequisites, an immigrant visa is immediately available. INA § 245(a); 8 U.S.C. § 1255(a). One of the ways by which- an alien may become eligible to receive an immigrant visa is through marriage to a United States citizen. INA § 201(b), 8 U.S.C. § 1151(b). An approved I 130 filed by the spouse satisfies the requirement that a visa is immediately available. INS, v. Miranda, 459 U.S. 14, 15, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982). Once approved, the I 130 remains valid for the legal duration of the marriage. 8 C.F.R. § 204.2(h)(1) (2001). However, approval of the I 130 petition does" }, { "docid": "9977319", "title": "", "text": "as well. This is because both statutory schemes implicate a deeper juridical problem, which results from placing greater emphasis on the date of adjudication rather than on the date of filing. We thus conclude that the proper construction of the pre-IIRIRA voluntary departure provision requires that aliens be afforded a reasonable opportunity to receive a ruling on the merits of a timely-filed motion to reopen. VI. Accordingly, we will GRANT the Petition for Review of the BIA’s decision, and remand this matter to the BIA for further proceedings consistent with this opinion. . Barrios’s petition is controlled by that now-repealed section because he was charged by the INS with deportation prior to its repeal. . The INS is now the Bureau of Citizenship and Immigration Services within the Department of Homeland Security. 6 U.S.C. § 271. Because the INS commenced the relevant proceedings, we will use INS herein, unless otherwise indicated. . Barrios's case was consolidated with the related cases of his parents and sister into one deportation proceeding. . Section 245 of the INA is the proper statutory framework for adjudicating an application for adjustment of status filed by an alien in deportation proceedings. Under section 245, an alien may be eligible for adjustment of status if, among other prerequisites, an immigrant visa is immediately available. 8 U.S.C. § 1255(a). One of the ways by which an alien may become eligible to receive an immigrant visa is through marriage to a United States citizen. 8 U.S.C. § 1151(b)(2)(A)(i). An approved 1-130 filed by the spouse satisfies the requirement that a visa be immediately available. INS v. Miranda, 459 U.S. 14, 15, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982). However, approval of the 1-130 petition does not automatically entitle the alien to adjustment of status. INS v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (citing Menezes v. INS, 601 F.2d 1028 (9th Cir.1979)). While an 1-130 establishes eligibility for adjustment of status, the Attorney General — or in the context of deportation proceedings, the IJ — still has discretion to accord the status. 8 U.S.C." }, { "docid": "2136751", "title": "", "text": "it implies that the marriage took place after Garcia had been ordered deported. 16 I. & N. Dec. at 654. The fact that the BIA granted Garcia’s motion to reopen suggests that the evidence relating to his marriage could not have been presented at his original deportation hearing. See 8 C.F.R. § 3.2. Moreover, in oral argument before this court, counsel for the INS conceded that the legally relevant facts in Garcia and Israel are indistinguishable. . The new policy announced in Garcia was based on a change in the law and implementing regulations. An alien applying for adjustment of status under 8 U.S.C. § 1255 must show that he or she: (1) is admissible for permanent residence and eligible for an immigrant visa; and (2) has an immigrant visa “immediately available.\" 8 U.S.C. § 1255(a); Ahwazi v. INS, 751 F.2d 1120, 1122 n. 1 (9th Cir.1985). Before 1977, the INS would routinely deny adjustment applications submitted simultaneously with visa petitions because the visa in such cases would by definition not be immediately available. The petition had to be first processed and approved for the visa to become \"available.” Garcia, 161. & N. Dec. at 654. In 1976 Congress amended section 1255’s provision for dating the adjustment application, and the INS accordingly amended its regulation to provide for the simultaneous filing of a visa petition and an adjustment application. 8 C.F.R. § 245.2(a)(2) (1985); Garcia, 16 I. & N. Dec. at 654-55. The BIA in Garcia recognized that the new simultaneous filing provision would be nullified if the INS continued its previous practice of requiring already-available visas. Accordingly, the BIA established a new policy for simultaneously filed adjustment applications and visa petitions: unless it is clear from the record that the petition would not be approved, or that the adjustment application would be denied on statutory grounds, or as a matter of discretion notwithstanding approval of the petition, the motion to reopen should be granted and the adjustment application retained pending a ruling on the visa petition. Id. at 657. . See also Matter of Cavazos, 17 I. & N." }, { "docid": "13690311", "title": "", "text": "ruling of the BIA standing alone). The Board itself made no similar comment regarding whether a specific finding of a “sham marriage” was warranted on the evidence, instead holding only that Ms. Reynoso had failed to carry her burden of proof. Second, Ms. Reynoso’s argument turns on her interpretation of the statute dealing with sham marriage determinations, 8 U.S.C. § 1154(c). This provision, however, has a single directive: It prohibits issuance of a visa to an individual if the Attorney General determines that the individual ever had sought status on the basis of a sham marriage. See 8 U.S.C. § 1154(c). Here, neither the IJ nor the BIA was adjudicating a new visa petition for Ms. Reynoso. Instead, they were charged with making a determination about permanent resident status based on a visa petition that already had been granted years ago by the Department, the validity of which was not in question in the removal proceedings. Ms. Reynoso did have a second such visa petition pending at the time of her removal proceedings, filed by her second husband, but the contemporaneous review of that petition by the Department was an entirely separate administrative proceeding. See Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir.1990); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987) (noting that “[t]he proceedings in which visa petitions are adjudicated are separate and apart from exclusion and deportation proceedings” and that, consequently, “it is well established that immigration judges have no jurisdiction to decide visa petitions, a matter which is solely within the authority of the district director”). Section 1154(c), therefore, had no application to these proceedings, and the IJ’s failure to cite it, or render a decision under it, in no way conflicts with the entirely separate determination that Ms. Reynoso had failed to establish the bona fides of her first marriage in her removal proceedings. The Board’s decision to deny removal of the conditions on Ms. Reynoso’s residency, is, therefore, supported by substantial evidence, and we shall not disturb it. B. Cancellation of Removal 1. Standard of Review In order to demonstrate" }, { "docid": "5261986", "title": "", "text": "constitutional or otherwise, in the policy adopted by the BIA. Arthur determined that a presumption in favor of the marriage’s validity was inconsistent with the statutory mandate implemented by the 1990 amendments to the Immigration and Nationality Act, and refused to intrude upon the Attorney General’s authority to adjudicate immediate relative visa petitions by engaging in an independent inquiry into the bona fides of the marriage. We find no fault with that conclusion. This court has recently affirmed that the authority to adjudicate immediate relative preference petitions properly rests with the Attorney General (who has, in turn, delegated it to the district directors), and not with the BIA or the immigration judge. Dodig v. INS, 9 F.3d 1418, 1420 (9th Cir.1993); see Immigration and Nationality Act of 1952 (“INA”) § 204, codified at 8 U.S.C. § 1154. The same applies to the adjustment of status under INA § 245 (8 U.S.C. § 1255). The BIA was correct to await the Attorney General’s determination. Moreover, Petitioner is not wronged by the fact that the Attorney General, not the BIA, was charged with the adjudication of the immediate relative petition. Before Garcia, we approved a policy substantially the same ás the current one. In Phatanakitjumroon v. INS, 577 F.2d 84, 86 (9th Cir.1978), this court held that the immigration judge had discretion to deny a motion to reopen because “on the date of the alien’s application for adjustment of status he was not eligible for an adjustment of status as a matter of right because his wife’s visa petition had not yet been approved.” We were not swayed by the argument that “the finding of ineligibility here [was] based solely on a procedural requirement outside the control of the alien.” Id.; see also Pritchett v. INS, 993 F.2d 80, 84-85 (5th Cir.) (finding Arthur reasonable and upholding a BIA denial of a motion to reopen), cert. denied, — U.S.-, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993). The BIA was entitled to presume that Petitioner was not statutorily entitled to an adjustment of status until the relative visa petition had been adjudicated. The" }, { "docid": "22357797", "title": "", "text": "prong and for the exercise of discretion regarding suspension of deportation. IV. Adjustment of Status Hernandez also appeals the BIA’s denial of her petition for adjustment of status under section 245 of the INA, 8 U.S.C. § 1255. The BIA deemed Hernandez statutorily ineligible for relief, and alternatively denied her relief as a discretionary manner. As an initial matter, we note that the INS’s treatment of Hernandez’s application for adjustment of status provides belated support for Congress’s assessment that the INS’s hostility to battered women results in unnecessary barriers to relief to which they appear entitled. Both grounds relied upon by the BIA to justify its denial of Hernandez’s application — her inability to provide a copy of the approved visa petition and the deterioration of her marriage — relate directly to her status as a battered woman. A. Statutory Eligibility For Adjustment of Status Section 245(i) requires that in order for an applicant to be eligible for an adjustment of status, the applicant must show that: “(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed.” 8 U.S.C. § 1255(i). During the time that Hernandez lived with her husband, who was a legal permanent resident of the United States, he filed an 1-130 petition for her to become a legal permanent resident pursuant to 8 U.S.C. § 1154(a)(1)(B). As the spouse of a legal permanent resident, Hernandez was eligible for an immigrant visa under the second family preference category upon approval of the petition. See 8 U.S.C. § 1153(a)(2)(A). However, the IJ, affirmed by the BIA, found that Hernandez was statutorily ineligible for adjustment of status because she could not show that she had an approved visa petition and because she had not been allocated an immigrant visa number. We address these issues in turn. 1) Approved Visa Petition The INS claims that Hernandez must show that a visa petition has been approved on her behalf. Neither the BIA nor the" }, { "docid": "22357823", "title": "", "text": "contained in the BIA’s adjudication of Hernandez's claim. Although the Supreme Court has held that case-by-case adjudications under the INA may be subject to Chevron deference, see INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999), there is no indication that the BIA intended to issue an interpretation of extreme cruelty in this case. The decision was not designated as precedential. Moreover, the BIA did not focus on the term or even reference its own regulation, and the opinion contains no definition or explicit consideration of the term. In essence, the BIA appeared to treat \"extreme cruelty” as a mere extension of \"battery,” an interpretation that would not present a permissible construction of the regulation, even if the BIA had so intended it. See, e.g., Lal v. INS, 255 F.3d 998, 1004 (9th Cir.2001). . See 8 U.S.C. § 1154(a)(l)(A)(iii) (allowing battered alien to self petition only if she has \"resided in the United States with the alien’s spouse \" (emphasis added)). . The first act in obtaining a visa is filing a petition with the INS. Gordon et al.. Immigration Law & Procedure, § 41.01(l)(c) (2003). The INS determines whether a petition will be approved or denied. Certain categories of beneficiaries, for example spouses of United States citizens, are eligible to receive immigrant visas immediately upon approval of their petitions. Id. at § 51.01(2)(b)(iii). Otherwise, once a petition is approved, a visa issuance priority date is assigned. For petitions based on a family preference category, the priority date is the date that the approved petition was filed. See 22 C.F.R. § 42.53; Gordon, supra, § 51.01(2)(b)(iii). . In most cases, a family petition may not be filed by the individual desiring to acquire status (the beneficiary), but must be filed by the relative who is the United States citizen or legal permanent resident (the petitioner). . Approved petitions are now forwarded to the National Visa Center, which is a division of the State Department. Between 1991 and 1994 (the period during which Hernandez's petition was filed and processed), petitions went to the Transitional Immigrant" }, { "docid": "22356972", "title": "", "text": "implement the public policy underlying these laws. See, e. g., INS v. Jong Ha Wang, 450 U. S. 139, 144-145 (1981) (per curiam); Hibi, supra, at 8. Appropriate deference must be accorded its decisions. This case does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws. Proof only that the Government failed to process promptly an application falls far short of establishing such conduct. Accordingly, we grant the petition for certio-rari and reverse the judgment of the Court of Appeals. It is so ordered. Section 201(b) of the Immigration and Nationality Act of 1952 provides for the admission of immigrants who are immediate relatives of United States citizens. 66 Stat. 175, as amended, 8 U. S. C. § 1151(b). Section 245(a) provides that the status of an alien who was admitted into the United States “may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.” 66 Stat. 217, as amended, 8 U. S. C. § 1255(a). The INS has maintained consistently that the 18-month delay was reasonable because of the need to investigate the validity of respondent’s marriage. Because the issue of estoppel was raised initially on appeal, the parties were unable to develop any factual record on the issue. In 1976, the year in which Milligan filed her petition on behalf of respondent, some 206,319 immediate-relative petitions were filed. See INS Ann. Rep. 11 (1976). The Service has noted: “In dealing with these petitions, an inordinate amount of fraud, particularly in relation to claimed marriages, has been uncovered. . . . For a fee, partners are provided and marriages contracted to establish eligibility under the statutes" }, { "docid": "22793040", "title": "", "text": "status filed by an alien in deportation proceedings. 8 C.F.R. §§ 240.1(a)(1)(h), 240.11(a)(1) (2001). The IJ has exclusive jurisdiction to decide the adjustment of status application. 8 C.F.R. § 245.2(a)(1) (2001). However, only the INS may adjudicate the underlying I 130 visa petition. 8 C.F.R. § 204.1(e) (2001); Dielmann v. INS, 34 F.3d 851, 854 (9th Cir.1994). Under Section 245, an alien may be eligible for adjustment of status if, among other prerequisites, an immigrant visa is immediately available. INA § 245(a); 8 U.S.C. § 1255(a). One of the ways by which- an alien may become eligible to receive an immigrant visa is through marriage to a United States citizen. INA § 201(b), 8 U.S.C. § 1151(b). An approved I 130 filed by the spouse satisfies the requirement that a visa is immediately available. INS, v. Miranda, 459 U.S. 14, 15, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982). Once approved, the I 130 remains valid for the legal duration of the marriage. 8 C.F.R. § 204.2(h)(1) (2001). However, approval of the I 130 petition does not automatically entitle the alien to adjustment of status as an immediate relative of a United States citizen. INS v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (citing Menezes v. INS, 601 F.2d 1028 (9th Cir.1979)). While an I 130 establishes eligibility for status, the Attorney General- — or in the context of deportation proceedings, the IJ — must still decide to accord the status. Amarante v. Rosenberg, 326 F.2d 58, 62 (9th Cir.1964). As part of the investigative process for adjustment of status, the alien must attend an interview with an immigration officer. 8 C.F.R. § 245.6 (2001). While the regulations do not explicitly require the spouse to appear or testify on the alien’s behalf, as a practical matter, the INS often requests the attendance of both the alien and the spouse at the initial adjustment interview. See SARAH IGNATIUS, IMMIGRATION LAW AND THE FAMILY § 8.04[5] at 8-60 (2001). Its authority to do so is found in its general regulatory power to request the appearance of an applicant," }, { "docid": "15448160", "title": "", "text": "inquiry differs accordingly. Because the legislative purpose is preservation, the INS inquires into the existence of a bona fide marital relationship. The applicant seeks a permanent, not a temporary, visa. Here, mandatory admission for permanent residence based primarily on intent at the time of the marriage does not further the congressional goal of preservation. Consequently, Congress provided that, to be admitted for permanent residence, immediate relatives must submit to the discretion of the Attorney General by applying for adjustment of status under § 245. In determining whether to grant permanent resident status based on a marriage, it is highly relevant that the relationship may no longer be in existence when the application is under consideration. Thus Whetstone, which directs the INS to ignore deterioration of a marriage except as it bears upon intent at the time of the marriage, is simply inapplicable. We affirm dismissal of Menezes’ appeal. . Mrs. Menezes’ visa petition on her husband’s behalf was originally denied and the denial was affirmed by the BIA. It was apparently reconsidered and approved in April, 1975. . When final separation occurred, Menezes refused to allow his wife to return to his home until she discontinued habits of which he disapproved. Nevertheless, he testified that he thought the marriage was still viable and that he did not think his wife was going to divorce him. . The regulation provides in part: The approval of a petition ... is revoked as of the date of approval ... if any of the following circumstances occur before the beneficiary’s journey to the United States commences or, if the beneficiary is an applicant for adjustment of status to that of permanent resident, before the decision on his application becomes final: (a) Relative petitions. (4) Upon the legal termination of the relationship of husband and wife when a petition has accorded status as the spouse of a citizen . . . under section 201(b) ... of the Act. 8 C.F.R. § 205.1 (1978) (emphasis added). It must be read in conjunction with § 205 of the Act; 8 U.S.C. § 1155 (1976), which states that" } ]

[ { "docid": "8089864", "title": "", "text": "bankrupt’s liability for post-petition interest on the tax that had been left unpaid. Contra Hugh H. Eby Co. v. United States, 319 F.Supp. 942, 943-944 (E.D.Pa.1970). .This distinction is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disallowance of claims for such interest against the bankrupt estate, to wit, “the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience,” 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a non-dis-chargeable federal tax claim was asserted against the bankrupt himself. Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966), relied on by the district court, dealt with the quite different question of allowance of post-petition interest against the bankrupt estate. Far from indirectly undercutting Bruning, the Court was at pains to point out, 384 U.S. at 682 n. 9, 86 S.Ct. at 1678-1679, that “[i]t is clear that the interest-bearing quality of the debt is suspended, rather than extinguished, by the filing of a petition in bankruptcy” and that in some circumstances, citing Bruning, “the accrual of interest may continue during the period of bankruptcy administration.” To be sure, it can be argued that it is unfair to charge a bankrupt with interest during a period when his funds are in custodia legis. But often, perhaps even usually, the money is being used by the debtor in possession or the trustee for a useful business purpose and there is thus no real hardship in the bankrupt’s having to pay interest on a claim not subject to discharge. In any event the words of 26 U.S.C. § 6873 (a) and § 17 of the Bankruptcy Act are too strict to leave room for judicial loosening in the service of a policy that at best is doubtful. The order of the district court is reversed, with instructions to direct the referee to enter an order dismissing Johnson Electrical" } ]

[ { "docid": "5175712", "title": "", "text": "the pendency of the reorganization proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings. See 376 U.S. at 360, 84 S.Ct. 906 [907], 11 L.Ed.2d 772. “Id.\" But, in Matter of Benson, 65 B.R. 148, 150, 151 (Bkrtcy.W.D.Mo.1986), this court had observed that the Johnson decision had been predicated on legal precedents and a statute which had since been changed in very critical respects: \"In Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3rd Cir.1972), the debtor paid the principal in full during the course of a confirmed chapter XI plan. It was held lawful for the United States to collect the interest from the debtor 'from assets acquired by the taxpayer subsequent to the confirmation of the plan of arrangement. 456 F.2d at 924. Under the former chapter XI, the bankruptcy was ordinarily regarded as closed as of the date of the confirmation of the plan. (The court was to retain jurisdiction only if ‘is so provided in the arrangement.’ Section 368 of the Bankruptcy Act.) Thus, the ruling was to the effect that so much of the debt which survived bankruptcy and was not paid during the course of the bankruptcy proceedings might be collected thereafter, plus both pre-petition and postpetition interest. The same holding was the rule of another decision now cited and relied upon by the government, In re Johnson Electrical Corp., 442 F.2d 281, 282 (2d Cir.1971), in which it was held that a full payment of principal made under a chapter XI plan did not preclude the later collection of interest on a nondischargeable tax obligation. In that case, the court observed that one line of authority had ruled to the contrary, but quoted the opinion in the Bruning decision, supra, to the effect that there was ‘no indication in the wording or history of section 6873(a) that the section was meant to limit the Government’s" }, { "docid": "7460778", "title": "", "text": "United States, 456 F.2d 923 (3d Cir. 1972), we held that the rule of Bruning is applicable to a Chapter XI arrangement. On the basis of Bruning, we declared that Congress, in determining that tax debts were nondischargeable, had made a judgment that the importance of financing the government outweighs the “value of giving the debtor a fresh start.” Id. at 925. Eby extended the Bruning rationale by declaring that the rehabilitative purpose of the Bankruptcy Act was not an obstacle to holding the Chapter XI debtor personally liable for post-petition interest on a tax debt where the debtor had acquired assets subsequent to confirmation of a Chapter XI arrangement. In similar fashion, although claims for pre-petition penalties on a tax debt are not allowable against a bankruptcy estate, debtors may be held personally liable for such penalties following confirmation of a Chapter XI plan of arrangement. In World Scope Publishers, Inc. v. United States, 348 F.2d 640, 642 (2d Cir. 1965), the Court of Appeals for the Second Circuit found support for this result in the principle that “there is no reason to believe that [the] deterrent function” achieved by the imposition of tax penalties “is less worthy than the rehabilitative function served by Chapter XI proceedings.” With these principles in mind, we turn to the question whether IRS should be estopped from asserting liabilities for penalties and interest against the debtors in this case. Traditionally, an equitable estoppel has been imposed when one party has relied to its detriment on the conduct of the other party, and such reliance was justified. The record supports the conclusion that the debtors relied on the conduct of the IRS during the arrangement as signifying that the IRS would not assert claims for pre-petition penalties and post-petition interest following completion of the plan. The IRS does not deny that the debtors so relied. Nor does the IRS question that the debtors’ reliance would work to their detriment if collection of the claims at issue here is permitted. That conclusion is also supported by the record and follows from an understanding of a" }, { "docid": "5175711", "title": "", "text": "unfair to charge a bankrupt with interest during a period when his funds are in custodia legis. But often, perhaps even usually, the money is being used by the debtor in possession or the trustee for a useful business purpose and there is thus a real hardship in the bankrupt’s having to pay interest on a claim not subject to discharge. In any event the words of 26 U.S.C. § 6873(a) and § 17 of the Bankruptcy Act are too strict to leave room for judicial loosening in the service of a policy that at best is doubtful.” \"Id. at 284. “Similarly, in Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3rd Cir.1972), the Eby Company argued that the district court ‘erred in applying Bruning’ because ‘the taxes were paid in full here whereas they were not so paid in Bruning.' The Third Circuit rejected this argument: \"That the underlying taxes were later paid in full here does not affect the fact that appellant had the use of the Government’s money during the pendency of the reorganization proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings. See 376 U.S. at 360, 84 S.Ct. 906 [907], 11 L.Ed.2d 772. “Id.\" But, in Matter of Benson, 65 B.R. 148, 150, 151 (Bkrtcy.W.D.Mo.1986), this court had observed that the Johnson decision had been predicated on legal precedents and a statute which had since been changed in very critical respects: \"In Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3rd Cir.1972), the debtor paid the principal in full during the course of a confirmed chapter XI plan. It was held lawful for the United States to collect the interest from the debtor 'from assets acquired by the taxpayer subsequent to the confirmation of the plan of arrangement. 456 F.2d at 924. Under the former chapter XI, the bankruptcy was ordinarily regarded as closed" }, { "docid": "18576232", "title": "", "text": "Cir.1956). However, the Second Circuit has concluded that Bruning nullified National Foundry, and it no longer follows its earlier decision. See In re Johnson Electrical Corporation, 442 F.2d 281 (2d Cir.1971). In permitting recovery of post-petition interest from the rehabilitated debtor, the court in Johnson Electrical Corporation found no reason to limit the Bruning holding to cases where the underlying debt had not been paid. Judge Friendly wrote for the court: This distinction is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disal-lowance of claims for such interest against the bankrupt estate, to wit, “the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience,” 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a non-dischargeable federal tax claim was asserted against the bankrupt himself. Id. at 284. The Third Circuit reached the same conclusion in Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972), and the Second Circuit reaffirmed its position in In re Jaylaw Drug, Inc., 621 F.2d 524 (2d Cir.1980). We conclude that Vaughan was incorrectly decided and join those courts which have held that the government may recover post-petition interest on nondischarged debts for taxes regardless of whether the underlying debt has been paid or not. We also disagree with the defendants’ contention that even if the “fee” is a “tax,” the interest in this case cannot be recovered because it did not accrue “within three years preceding bankruptcy,” a condition of nondischargeability under § 17 of the Act. A similar argument was rejected in Jaylaw where the court agreed with the conclusion stated in 9 Collier on Bankruptcy If 9:32 at 412 that the “within three years preceding bankruptcy” language of § 17 should not be applied literally to post-petition interest which, by its very nature, cannot accrue prior to bankruptcy. 621 F.2d at 527 n. 1. Since the abandoned mine reclamation" }, { "docid": "22235321", "title": "", "text": "application of portions of his $38,296.86 payment to postpetition interest and penalties that accrued on his prepetition tax debts. Mr. Fullmer contends that the IRS improperly exacted payment for these debts from the bankruptcy estate. We do not dispute the contention that unmatured interest, including interest accruing postpetition on a prepetition tax debt) is disallowed against the bankruptcy estate pursuant to 11 U.S.C. § 502(b)(2). However, Mr. Fullmer paid the IRS the $38,296.86 after his plan was confirmed. Thus, the pay ment was made by him personally and not by the bankruptcy estate. See 11 U.S.C. § 1141(b) (confirmation of plan vests property of estate in debtor). Interest that accrues postpetition on a nondischargeable prepetition tax debt survives bankruptcy as a personal liability. See Bruning v. United States, 376 U.S. 358, 360, 84 S.Ct. 906, 907, 11 L.Ed.2d 772 (1964). See also Allen v. Romero, 535 F.2d 618, 623 (10th Cir.1976) (interest continues to accrue on non-dischargeable debt). Furthermore, tax penalties imposed pursuant to a nondis-chargeable tax debt are nondischargeable pursuant to 11 U.S.C. § 523(a)(7) (1988) and thus survive bankruptcy as a personal liability as well. Because Mr. Fullmer remained personally liable for both the post-petition interest and the penalties that accrued on his prepetition debt, the IRS was entitled to apply a portion of his personal payment to these debts. Mr. Fullmer further contends that he was entitled to direct to which debts his payments to the IRS would be applied. According to Mr. Fullmer, the IRS improperly applied his payments to his prepetition tax debt rather than his postpetition tax debt as he had directed. As a general rule, a taxpayer can direct how voluntary payments are to be applied. O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964). A taxpayer cannot direct the application of involuntary payments, however. Id. The issue before us, therefore, is whether the payments Mr. Fullmer made to the IRS pursuant to his Chapter 11 proceeding were voluntary or involuntary. We join the Third, Sixth and Ninth Circuits in holding that such payments are involuntary. See In the Matter of Ribs-R-Us," }, { "docid": "4725366", "title": "", "text": "Believing that it was for this purpose that section 2201 of Title 28 was enacted, the Court will address the balance of the issue. See Maryland Casualty v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, 829. As set out in the government’s brief, “The seminal case under the Bankruptcy Act addressing the issue of the discharge-ability of post-petition statutory interest accruing on a non-dischargeable tax liability is the Supreme Court decision in Bruning v. United States, 376 U.S. 358 [84 S.Ct. 906, 11 L.Ed.2d 772] (1964).” In Bruning, the Court points out that under section 17 of the Bankruptcy Act of 1898, as amended, the bankrupt remained personally liable following his discharge for that portion of the principal amount of the tax debt and pre-petition interest not paid out of the bankruptcy estate. The Court further affirmed the lower court holding that the debtor also remained personally liable for post-petition interest on that tax debt. In 1971, in the case of In re Johnson Electrical Corporation, 442 F.2d 281, the Second Circuit refused to distinguish the case (a Chapter XI under the Act) on the grounds that all pre-petition tax and interest had been paid in full from the estate, whereas in Bruning, a liquidation case, they had not. The Court stated: Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disal-lowance of claims for such interest against the bankrupt estate, to wit, ‘the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience,’ 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a non-dischargeable federal tax claim was asserted against the bankrupt himself. (Citation omitted). In re Johnson at 284. In 1980, the issue was again before the Second Circuit in In re Jaylaw Drug, Inc., 621 F.2d 524. In Jaylaw, as in Johnson Electrical, the I.R.S. sought to collect from the debtor following confirmation of a Chapter XI arrangement." }, { "docid": "19165723", "title": "", "text": "estate. See Bruning v. United States, 376 U.S. 358, 363, 84 S.Ct. 906, 909, 11 L.Ed.2d 772 (1964). If Congress had intended to change that rule under the Bankruptcy Code, it would have made that intent clear in the language of the statute. See Midlantic National Bank v. New Jersey Dept, of Environmental Protection, 474 U.S. 494, 501, 106 S.Ct. 755, 759-60, 88 L.Ed.2d 859 (1986). The language of § 1141(d)(2) provides confirmation, however, that Congress did not intend to change the pre-Code law in that regard. In Bruning, a liquidation proceeding under the Bankruptcy Act of 1898, the United States Supreme Court held that post-petition interest may be collected from the debtor personally even though it may not be collected from the bankruptcy estate. 376 U.S. at 363, 84 S.Ct. at 909. The debtor in Bruning asserted that the longstanding rule, now codified in § 502(b)(2), disallowing creditors’ claims for post-petition interest against the bankruptcy estate, also applies to discharge the debtor from personal liability for such interest even if the underlying debt is not discharged. The Court rejected that contention stating that the reasons for the rule denying post-petition interest as a claim against the bankruptcy estate do not apply to an action brought against the debtor personally. Id. at 363, 84 S.Ct. at 909. In the instant case there is no dispute that the underlying debt to the IRS is non-disehargeable. Nor does the IRS seek to collect Gap Interest from the estate. The reasoning in Bruning, therefore, applies here. Several courts of appeals’ decisions arising under the Bankruptcy Act support such a holding. See United States v. River Coal Co., Inc., 748 F.2d 1103, 1106-07 (6th Cir.1984) (extending Bruning to Gap Interest on non-disehargeable tax debts in Chapter XI proceedings where the tax claim was paid in full under the plan); In re Jaylaw Drug, Inc., 621 F.2d 524, 528 (2d Cir.1980) (same); Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972) (same); In re Johnson Electrical Corp., 442 F.2d 281, 283-84 (2nd Cir.1971) (same). Most decisions under the Bankruptcy Code also" }, { "docid": "7460777", "title": "", "text": "their detriment upon the finality of the Proof of Claim.” The IRS contends that the district court erred in applying the doctrine of equitable estoppel, and that the judgment of the district court, at least in this respect, should be reversed. It is well-established that obligations for pre-petition penalties and post-petition interest that accrue on a tax debt comprise personal liabilities of the debtor, and survive payment of the principal debt pursuant to an arrangement. In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the Supreme Court, confirming that post-petition interest on a nondischargeable tax debt was not allowable against a bankruptcy estate, held that such claims could be asserted against the discharged bankrupt. The Court reasoned that the policies underlying the prohibition against the collection of post-petition interest claims against a bankruptcy estate-avoidance of diminution of the amount payable to competing creditors and administrative convenience-are inapplicable where the personal liability of the debtor is involved. Id. at 362-63, 84 S.Ct. at 908-09. In Hugh H. Eby Co. v. United States, 456 F.2d 923 (3d Cir. 1972), we held that the rule of Bruning is applicable to a Chapter XI arrangement. On the basis of Bruning, we declared that Congress, in determining that tax debts were nondischargeable, had made a judgment that the importance of financing the government outweighs the “value of giving the debtor a fresh start.” Id. at 925. Eby extended the Bruning rationale by declaring that the rehabilitative purpose of the Bankruptcy Act was not an obstacle to holding the Chapter XI debtor personally liable for post-petition interest on a tax debt where the debtor had acquired assets subsequent to confirmation of a Chapter XI arrangement. In similar fashion, although claims for pre-petition penalties on a tax debt are not allowable against a bankruptcy estate, debtors may be held personally liable for such penalties following confirmation of a Chapter XI plan of arrangement. In World Scope Publishers, Inc. v. United States, 348 F.2d 640, 642 (2d Cir. 1965), the Court of Appeals for the Second Circuit found support for this result" }, { "docid": "4725367", "title": "", "text": "442 F.2d 281, the Second Circuit refused to distinguish the case (a Chapter XI under the Act) on the grounds that all pre-petition tax and interest had been paid in full from the estate, whereas in Bruning, a liquidation case, they had not. The Court stated: Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disal-lowance of claims for such interest against the bankrupt estate, to wit, ‘the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience,’ 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a non-dischargeable federal tax claim was asserted against the bankrupt himself. (Citation omitted). In re Johnson at 284. In 1980, the issue was again before the Second Circuit in In re Jaylaw Drug, Inc., 621 F.2d 524. In Jaylaw, as in Johnson Electrical, the I.R.S. sought to collect from the debtor following confirmation of a Chapter XI arrangement. In Jaylaw, the debtor sought to distinguish Bruning, a liquidation proceeding or in the words of the Court “an ordinary bankruptcy” from its own situation in which an arrangement had been confirmed. The Court recognized that although they had assumed in Johnson that Bruning was applicable in a reorganization case, they had not addressed that issue in a discrete fashion. In Jaylaw they did so. The Court acknowledges that the distinction between not collecting post-petition interest from the “estate” while doing so from the former debtor after the reorganization proceeding has terminated “may appear to be lacking in reality.” Judge Friendly then concluded; Despite this we see no sufficient reason to depart from our decision in Johnson Electrical even if this panel had the power to do so, which it does not, see United States v. Fatico, 603 F.2d 1053, 1058 (2 Cir.1979); Ingram v. Kumar, 585 F.2d 566, 568 (2 Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). Congress was at pains to exclude from § 371, the discharge" }, { "docid": "16772635", "title": "", "text": "Chapter 11 differ as to timing, the distinction being that a Chapter 7 discharge operates as to debts that arose before the date of filing, while a Chapter 11 discharge covers debts that arose before the date of confirmation. The contention is that post-petition interest on a nondischargeable debt is not dis-chargeable in a Chapter 7 for the reason that it accrues post-discharge. According to the debtors, this premise should have been the basis for the Bruning holding. Stated another way, the debtors maintain that date of discharge is the first date on which the taxing authority can commence charging interest against a debtor on the nondischargeable claim. Since the Chapter 11 discharge occurs at confirmation, it follows that the IRS cannot begin charging interest on prepetition taxes in a Chapter 11 until the date of confirmation. If Brun-ing had in fact turned on the timing of the discharge, the debtors’ argument might be persuasive. However, as indicated above, the Bruning Court based its decision on a much different premise, and the debtors’ argument therefor fails. Next, the debtors raise a further difference between Chapter 7 and Chapter 11. In Chapter 7, a clear distinction exists between the estate and the discharged debt- or, such that interest may continue to run against the debtor and not against the estate. Citing N.L.R.B. v. Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984), the debtors contend that the debtor-in-possession and the Chapter 11 estate are the same entities, and thus § 502(b) restrictions against post-petition interest apply to both. In In re Jaylaw Drug, Inc., 621 F.2d 524 (2nd Cir.1980), a case arising under Chapter XI of the Bankruptcy Act, the Second Circuit discussed this problem as follows: In ordinary bankruptcy there is a sharp distinction between the estate and the bankrupt. The estate, after payment of administration expenses, is distributed to creditors; the bankrupt emerges with none of the assets of the estate and continues with only exempt and after-acquired assets which had never formed part of it. In arrangements the situation is more complex. In some arrangements a" }, { "docid": "16777079", "title": "", "text": "Transp., Inc., 632 F.2d at 245. Nothing in § 6871 indicates that a taxpayer- who contests the government’s assessment during the pendency of his bankruptcy proceedings is not entitled to protection from the immediate accrual of interest that would flow from such an adjudication. Because Resyn contested the government’s assessment during the pendency of this bankruptcy proceeding, I believe interest on the assessed fraud penalty should run from the date that determination is considered final, that is, 30 days after December 9, 1981, the date upon which the bankruptcy court ren dered its decision. See 26 C.F.R. § 301.7481-1 (1987). Accordingly, I dissent and would affirm the order of the district court in its entirety. . Generally, claims for pre-petition fraud penalties and post-petition interest can be allowed only if the bankruptcy court finds that the debt- or has been rehabilitated. Such penalties and interest are assessed against the debtor personally, rather than against the bankruptcy estate, and are satisfied from assets that are after-acquired properties of the debtor. See In re Becker’s Motor Transp., Inc., 632 F.2d 242, 248 (3d Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981); Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972). In this case, the government entered into a stipulation for the creation of a fund which would satisfy tax penalties and interest. App. at 4-7. . Section 6871, as amended in 1980, distinguishes between receiverships and Chapter XI proceedings. With respect to the latter, it now reads: (b) Immediate assessment with respect to certain title 11 cases. — Any deficiency (together with all interest, additional amounts, and additions to the tax provided by law) determined by the Secretary in respect of a tax imposed by subtitle A or B or by chapter 41, 42, 43, 44, or 45 on— (1) the debtor's estate in a case under title 11 of the United States Code, or (2) the debtor, but only if liability for such tax has become res judicata pursuant to a determination in a case under title 11 of the United States" }, { "docid": "16850996", "title": "", "text": "Coal Co., Inc., 748 F.2d 1103, 1106-07 (6th Cir.1984) (extending Bruning to gap interest — i.e., post-petition, pre-confirmation interest — on non-dischargeable tax debts in Chapter 11 proceedings where the tax claim was paid in full under the plan); In re laylaw Drug, Inc., 621 F.2d 524, 528 (2d Cir.1980) (same); Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972) (same); and In re Johnson Electrical Corp., 442 F.2d 281, 283-84 (2nd Cir.1971) (same)) (also relying on a number of decisions under the Code, including: Leeper, 49 F.3d at 104; Fullmer, 962 F.2d at 1468; Burns, 887 F.2d at 1543; Hanna, 872 F.2d at 831; In re Willauer, 192 B.R. 796, 801 n. 4 (Bankr.D.Mass.1996); JAS Enters., 143 B.R. 718, 719 (Bankr.D.Neb.1992); and In re Fox, 130 B.R. 571, 575 (Bankr.W.D.Wash.1991). But see In re Wasson, 152 B.R. 639, 642 (Bankr.D.N.M.1993)). . Id. (relying on River Coal, 748 F.2d at 1107; Eby, 456 F.2d at 925 (\"That the underlying taxes were later paid in full here does not affect the fact that appellant had the use of the Government’s money during the period of the reorgani zation proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), neither is the interest which accrues by reason of the use of such money during the pendency of the proceedings.”)); Johnson Electrical, 442 F.2d at 284 (stating that the distinction between post-petition interest where the underlying tax is partially paid and where it is fully paid \"is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not.”). . Heisson, 217 B.R. at 4. . Regarding the application of the payments, we note in passing that \"[u]nder [a] long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments.\" United States v. Pepper-man, 976 F.2d 123, 127 (3d Cir.1992) (citing Rev.Rul. 79-284, 1979-2" }, { "docid": "18576233", "title": "", "text": "Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972), and the Second Circuit reaffirmed its position in In re Jaylaw Drug, Inc., 621 F.2d 524 (2d Cir.1980). We conclude that Vaughan was incorrectly decided and join those courts which have held that the government may recover post-petition interest on nondischarged debts for taxes regardless of whether the underlying debt has been paid or not. We also disagree with the defendants’ contention that even if the “fee” is a “tax,” the interest in this case cannot be recovered because it did not accrue “within three years preceding bankruptcy,” a condition of nondischargeability under § 17 of the Act. A similar argument was rejected in Jaylaw where the court agreed with the conclusion stated in 9 Collier on Bankruptcy If 9:32 at 412 that the “within three years preceding bankruptcy” language of § 17 should not be applied literally to post-petition interest which, by its very nature, cannot accrue prior to bankruptcy. 621 F.2d at 527 n. 1. Since the abandoned mine reclamation fee is a tax, the rule applicable to post-petition interest on claims for taxes controls. In the only reported decision involving post-petition interest on abandoned mine reclamation fees, the court permitted recovery of interest. In re King, 19 B.R. 936 (Bkrptey.E.D.Tenn.1982). IV. We also conclude that the estoppel argument of the defendants is unsound. Ordinarily the United States is not es-topped by acts of individual officers and agents. Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791 (1917); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). At the very minimum some affirmative misconduct by a government agent is required as a basis of estoppel. INS v. Miranda, 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982); Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981). The failure to seek interest on a nondischargeable debt for taxes during the Chapter XI proceedings clearly did not constitute affirmative misconduct. The Supreme Court has recently emphasized the" }, { "docid": "16772633", "title": "", "text": "operates to discharge the bankrupt from personal liability for such interest, even though the underlying tax debt is not discharged. Rejecting this argument, the Court explained that the purpose of the rule disallowing claims against the estate for post-petition interest is to promote administrative convenience and ensure equality of treatment of claims where the estate is insufficient to pay all claims in full. The rule does not technically prevent interest from running post-petition, since post-filing interest is indeed payable from a solvent estate. Thus the reasons for the general rule against post-filing interest do not apply in an action against the bankrupt personally. As such, the Court held that “post-petition interest on an unpaid tax debt not discharged by § 17 remains, after bankruptcy, a personal liability of the bankrupt.” Id. at 363, 84 S.Ct. at 909. The debtors contend that Bruning should be confined to Chapter 7 cases and not be extended to Chapter 11 cases. The IRS notes that the Bruning holding was followed in two cases under Chapter XI of the Act; In re Jaylaw Drug, Inc., 621 F.2d 524 (2nd Cir.1980), and United States v. River Coal Co., Inc., 748 F.2d 1103 (6th Cir.1984). One Bankruptcy Court has determined that it applies to Chapter 11 Bankruptcy Code cases as well. In re Cline, 100 B.R. 660 (Bankr.W.D.N.Y.1989). The debtors have advanced a number of arguments in favor of their position. On the issue of interest, they note first that the Code defines “debt” as “liability on a claim,” and further that claims for unma-tured interest are disallowed against the estate under § 502(b)(2). The debtors contend that this limitation extends to § 523, so that a debt is nondischargeable only to the extent that a claim on such debt would have been allowable in the bankruptcy. This argument was advanced in Bruning. The Court rejected it, noting that the rule disallowing claims for post-petition interest is based on administrative convenience and equality of treatment and does not apply to claims against the debtor personally. Second, the debtors note that the discharge provisions of Chapter 7 and" }, { "docid": "16772632", "title": "", "text": "arose before the date of such confirmation ... (2) The confirmation of a plan does not discharge an individual debtor from any debt excepted from discharge under section 523 of this title. Section 523(a) excepts from discharge any debt “for a tax ... of the kind and for the periods specified in section ... 507(a)(7) of this title, whether or not a claim for such tax was filed or allowed.” Section 523(a)(7) provides that tax penalties are nondis-chargeable. The IRS maintains that the debtors’ non-dischargeable tax liability includes post-petition interest and penalties, relying on Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), and its progeny. Bruning was a Chapter VII case arising under the Bankruptcy Act. The IRS filed a claim and had received a small distribution from the estate. After the bankrupt received his discharge, the IRS proceeded to collect the remainder of the unpaid tax debt, including interest that had accrued post-petition. The bankrupt asserted that the rule disallowing claims against the estate for post-petition interest also operates to discharge the bankrupt from personal liability for such interest, even though the underlying tax debt is not discharged. Rejecting this argument, the Court explained that the purpose of the rule disallowing claims against the estate for post-petition interest is to promote administrative convenience and ensure equality of treatment of claims where the estate is insufficient to pay all claims in full. The rule does not technically prevent interest from running post-petition, since post-filing interest is indeed payable from a solvent estate. Thus the reasons for the general rule against post-filing interest do not apply in an action against the bankrupt personally. As such, the Court held that “post-petition interest on an unpaid tax debt not discharged by § 17 remains, after bankruptcy, a personal liability of the bankrupt.” Id. at 363, 84 S.Ct. at 909. The debtors contend that Bruning should be confined to Chapter 7 cases and not be extended to Chapter 11 cases. The IRS notes that the Bruning holding was followed in two cases under Chapter XI of the Act;" }, { "docid": "16772634", "title": "", "text": "In re Jaylaw Drug, Inc., 621 F.2d 524 (2nd Cir.1980), and United States v. River Coal Co., Inc., 748 F.2d 1103 (6th Cir.1984). One Bankruptcy Court has determined that it applies to Chapter 11 Bankruptcy Code cases as well. In re Cline, 100 B.R. 660 (Bankr.W.D.N.Y.1989). The debtors have advanced a number of arguments in favor of their position. On the issue of interest, they note first that the Code defines “debt” as “liability on a claim,” and further that claims for unma-tured interest are disallowed against the estate under § 502(b)(2). The debtors contend that this limitation extends to § 523, so that a debt is nondischargeable only to the extent that a claim on such debt would have been allowable in the bankruptcy. This argument was advanced in Bruning. The Court rejected it, noting that the rule disallowing claims for post-petition interest is based on administrative convenience and equality of treatment and does not apply to claims against the debtor personally. Second, the debtors note that the discharge provisions of Chapter 7 and Chapter 11 differ as to timing, the distinction being that a Chapter 7 discharge operates as to debts that arose before the date of filing, while a Chapter 11 discharge covers debts that arose before the date of confirmation. The contention is that post-petition interest on a nondischargeable debt is not dis-chargeable in a Chapter 7 for the reason that it accrues post-discharge. According to the debtors, this premise should have been the basis for the Bruning holding. Stated another way, the debtors maintain that date of discharge is the first date on which the taxing authority can commence charging interest against a debtor on the nondischargeable claim. Since the Chapter 11 discharge occurs at confirmation, it follows that the IRS cannot begin charging interest on prepetition taxes in a Chapter 11 until the date of confirmation. If Brun-ing had in fact turned on the timing of the discharge, the debtors’ argument might be persuasive. However, as indicated above, the Bruning Court based its decision on a much different premise, and the debtors’ argument therefor" }, { "docid": "5175710", "title": "", "text": "282. On appeal, Johnson Electrical argued that Bruning did not apply because unlike the debtor in Bruning, Johnson Electrical had paid the entire underlying tax debt: ‘The only basis suggested for disregarding Bruning is that here the entire tax, apparently including pre-petition interest, was paid as a result of the Chapter XI proceeding, whereas in Bruning only a partial payment had been made.’ \"Id. at 283. \"The second Circuit disagreed. ****** \"This distinction is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disal-lowance of claims for such interest against the bankrupt estate, to wit, 'the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience,’ 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a nondischargeable federal tax claim was asserted against the bankrupt himself.” ****** \"To be sure, it can be argued that it is unfair to charge a bankrupt with interest during a period when his funds are in custodia legis. But often, perhaps even usually, the money is being used by the debtor in possession or the trustee for a useful business purpose and there is thus a real hardship in the bankrupt’s having to pay interest on a claim not subject to discharge. In any event the words of 26 U.S.C. § 6873(a) and § 17 of the Bankruptcy Act are too strict to leave room for judicial loosening in the service of a policy that at best is doubtful.” \"Id. at 284. “Similarly, in Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3rd Cir.1972), the Eby Company argued that the district court ‘erred in applying Bruning’ because ‘the taxes were paid in full here whereas they were not so paid in Bruning.' The Third Circuit rejected this argument: \"That the underlying taxes were later paid in full here does not affect the fact that appellant had the use of the Government’s money during" }, { "docid": "19165724", "title": "", "text": "not discharged. The Court rejected that contention stating that the reasons for the rule denying post-petition interest as a claim against the bankruptcy estate do not apply to an action brought against the debtor personally. Id. at 363, 84 S.Ct. at 909. In the instant case there is no dispute that the underlying debt to the IRS is non-disehargeable. Nor does the IRS seek to collect Gap Interest from the estate. The reasoning in Bruning, therefore, applies here. Several courts of appeals’ decisions arising under the Bankruptcy Act support such a holding. See United States v. River Coal Co., Inc., 748 F.2d 1103, 1106-07 (6th Cir.1984) (extending Bruning to Gap Interest on non-disehargeable tax debts in Chapter XI proceedings where the tax claim was paid in full under the plan); In re Jaylaw Drug, Inc., 621 F.2d 524, 528 (2d Cir.1980) (same); Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972) (same); In re Johnson Electrical Corp., 442 F.2d 281, 283-84 (2nd Cir.1971) (same). Most decisions under the Bankruptcy Code also support such a holding. See, e.g., Leeper v. Pennsylvania Higher Education Assistance Agency, 49 F.3d 98, 104 (3rd Cir.1995); In re Fullmer, 962 F.2d 1463, 1468 (10th Cir.1992); In re Burns, 887 F.2d 1541, 1543 (11th Cir.1989); In re Hanna, 872 F.2d 829, 831 (8th Cir.1989); In re Willauer, 192 B.R. 796, 801 n. 4 (Bankr.D.Mass.1996); JAS Enterprises, 143 B.R. at 719; In re Fox, 130 B.R. 571, 575 (Bankr.W.D.Wash.1991). But see In re Wasson, 152 B.R. 639, 642 (Bankr.D.N.M.1993). The Bankruptcy Court concluded that Bmning did not apply to the present case because it dealt with non-dischargeable claims which were only partially paid in the bankruptcy proceeding, whereas, here the claims are to be fully paid in the bankruptcy proceedings. The Court draws that distinction apparently to reconcile § 1141(d)(2) and § 1129(a)(9)(C), but the effort, in this Court’s opinion, was unnecessary. Several circuit courts have rejected the distinction altogether. River Coal, 748 F.2d at 1107; Eby, 456 F.2d at 925; Johnson Electrical, 442 F.2d at 284. The distinction between post-petition interest where the" }, { "docid": "18576231", "title": "", "text": "involved income taxes, and the plan of arrangement provided for payment of the taxes plus penalties and interest to the date the petition in bankruptcy was filed. In seeking to collect post-petition interest in Vaughan the government conceded that it could collect such interest only from the debtor individually as incident to a nondischargeable debt, and not from the bankruptcy estate. The district court in Vaughan held that tax claims in Chapter XI proceedings bear interest only to the date the petition is filed and recovery of post-petition interest is limited to those cases where the underlying debt for taxes remains unpaid after approval of the plan of arrangement. In reaching this conclusion the Vaughan court distinguished Bruning, where the tax debt was not paid from the bankruptcy estate. Vaughan appears to be the only case in which a court has limited the Bruning holding to situations where the underlying debt for taxes has not been paid. The Vaughan court relied heavily on National Foundry Co. v. Director of Internal Revenue, 229 F.2d 149 (2d Cir.1956). However, the Second Circuit has concluded that Bruning nullified National Foundry, and it no longer follows its earlier decision. See In re Johnson Electrical Corporation, 442 F.2d 281 (2d Cir.1971). In permitting recovery of post-petition interest from the rehabilitated debtor, the court in Johnson Electrical Corporation found no reason to limit the Bruning holding to cases where the underlying debt had not been paid. Judge Friendly wrote for the court: This distinction is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not. In holding the latter, Bruning made clear that the reasons generally causing disal-lowance of claims for such interest against the bankrupt estate, to wit, “the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience,” 376 U.S. at 362, 84 S.Ct. at 909, were inapplicable when a non-dischargeable federal tax claim was asserted against the bankrupt himself. Id. at 284. The Third Circuit reached the same conclusion in" }, { "docid": "13520871", "title": "", "text": "the debtors’ argument is that this court has already held that the Bruning reasoning applies even in instances where the debt is paid in full. In Hugh H. Eby Co. v. United States, 456 F.2d 923 (3d Cir.1972), a taxpayer in a pre-Code case where the underlying debt was paid in full argued that it was entitled to recovery of post-petition interest on taxes that it had paid. The taxpayer sought to distinguish Bruning, which would have permitted the interest to accrue, on the ground that in Bruning the taxes had not been paid in full out of the estate. Id. at 925. The taxpayer also argued in Eby that because only liability for post-petition, pre-con-firmation interest was at issue, Bruning was inapplicable. We rejected both distinctions. We stated: “[I]n Bruning, the Supreme Court held that all post-petition interest, including interest accrued during the pendency of the bankruptcy proceeding, could be collected by the Government from after-acquired assets of the debtor. A fortiori, post-petition, pre-confirmation interest is also collectible.” Id. We then stated, in language of particular relevance here, “That the underlying taxes were later paid in full here does not affect the fact that appellant had the use of the Government’s money during the pendency of the reorganization proceeding, and that since the underlying debt is not discharged ... neither-is the interest which accrues by reason of the use of such money during the pendency of the proceedings.” Id.; see also United States v. River Coal Co., Inc., 748 F.2d 1103, 1107 (6th Cir.1984) (holding that the Bruning rule applied “regardless of whether the underlying debt has been paid or not”). Eby is good precedent. We cannot distinguish it, even if we were so inclined, on the ground that it is a pre-Code case because as we noted earlier, Bruning has been held as equally applicable to cases under the Bankruptcy Code. It follows from our construction of Bruning in Eby that even if the nondischargeable debt has been paid in full by the bankruptcy estate, accrual of post-petition interest is not precluded. Therefore the two-class problem identified by" } ]

[ { "docid": "9445394", "title": "", "text": "claims, e.g. Vernon J. Rockier & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 340 (D.Minn.1971), and defendant does not seriously argue that plaintiffs have failed to identify common questions sufficient to satisfy Rule 23(a)(2). Rather, it strenuously urges that they cannot satisfy the more stringent test of Rule 23(b)(3), that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Craig-Hallum asserts that the predominant issues in this case are individual questions of fact: what oral and written representations were made to each class members, and upon which, if any, of these representations did that individual rely. According to defendant, certification is precluded because the individual class members may have spoken to different brokers, who may have made varied sales pitches, and because not all class members necessarily read and relied upon all of the allegedly fraudulent documents. Unless plaintiffs can show that each class member read and heard exactly the same representations, defendant argues, certification is improper. Defendant concedes that this argument would require denial of class certification in virtually all 10b-5 actions against brokers. Defendant reads Rule 23(b)(3) too rigidly. “[A]s a general rule, securities fraud actions are allowed to proceed as class actions ‘in spite of forseeable variations on the issue of reliance.’ ” Reichert v. Bio-Medicus, Inc., 70 F.R.D. 71, 75 (D.Minn.1974) (citations omitted). There will always be some individuals who read the financial statements directly, others who read secondary analyses ..., and many others who relied on the advice of stock brokers or friends. If ... factual differences of this nature where sufficient to defeat class certification, there would never be a class action of securities purchases. Biben v. Card, Fed.Sec.L.Rep. (CCH) ¶ 92,-462, at 92,826 (W.D.Mo.1986) [Available on WESTLAW, DCT database] (quoting In re Data Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984)). The courts have recognized that class actions are “a particularly appropriate and desirable means to resolve claims based on the securities laws, ‘since the effectiveness of the securities laws may depend in large measure on the application of the" } ]

[ { "docid": "1763726", "title": "", "text": "Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶98,633 (S.D.N.Y.Mar. 16, 1982). See generally 4 Newberg, Class Actions, § 22.11 at 29 (1977). The advancement of the common interests of class members, however, may be jeopardized when the defendant can assert defenses against the representatives that are not applicable to the majority of the class members. The existence of defenses unique to the class representatives raises concerns that the representatives’ attention and the focus of the litigation will be shifted from issues common to the class to defenses unique to the representatives. See, e.g., Koos v. First National Bank of Peoria, 496 F.2d 1162 (7th Cir.1974); Masri v. Wakefield, 106 F.R.D. 322 (D.Col.1984); Cohen v. Laiti, 98 F.R.D. 581, 583-84 (E.D.N.Y.1983). Although the district court should not consider the merits of the plaintiffs case in deciding the certification issue, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974), when the requirements of commonality and typicality are brought into question, it may be necessary that the court analyze the substantive claims and defenses of the parties. Hurwitz, 76 F.R.D. at 157. In the present case, the defendants argue that the named plaintiffs’ lack of reliance subjects the plaintiffs to unique defenses. Examples of conduct cited by the defendants in support of their claim of unique defenses are speculation (plaintiff Page), sophistication (plaintiff Steiner), and lack of sophistication (plaintiff Randall). Consequently, the defendants argue, plaintiffs’ federal claims are not typical of the class and certification must be denied. The court rejects the defendants argument that variations in reliance raise unique defenses and preclude a showing of typicality. If reliance is an element of the plaintiffs’ 10b-5 claim, it is one that applies to each class member. As stated by the court in Graphic Enterprises “[rjeliance is an issue lurking behind every securities fraud claim, and to require that it first be proven, would effectively negate the concept of a 10b-5 class action.” Graphic Enterprises, 52 F.R.D. at 345. Acceptance of the defendants’ argument would effectively prevent certification of all non-omission 10b-5 claims. There is nothing unique about a" }, { "docid": "7921060", "title": "", "text": "The court finds that the questions of actual reliance do not render class treatment of the pendent claims unworkable. There is a limited factual basis for the claims of fraud and misrepresentation in this case. The core elements of the tort of fraud: material misrepresentation, knowledge of falsity, and intent, must be argued on the basis of the identical facts for all the members of the class. Considering the total lack of personal contact between the defendants and class members, the actual reliance argument will not be amenable to significant variation among class members. This court simply does not see actual reliance as an issue requiring such a level of individualized attention that class certification is inappropriate. It should be noted that varying issues of reliance exist in practically all securities class actions. Even if plaintiff Finkel relied on her stockbroker’s advice, that reliance would not be sufficient to defeat class action certification. Indeed, it is typical, rather than atypical, for shareholders to rely on various sources of information including stockbrokers in making investment decisions. Finkel, at 14 (citing In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984). Class certification is particularly appropriate in the case at bar because “there are no individual acts of fraud or misrepresentation alleged.” In re Victor Technologies Securities Litigation, 102 F.R.D. 53, 59 (N.D.Cal.1984). In the event that some significant variation of reliance argument is presented to the court, mechanisms are available to effectively litigate the reliance issues. See Riding, 94 F.R.D. at 151 (separate hearings); Fiddler’s Woods, at Tr. 19 (use of questionnaires); Caleb, 1192, 739 at 93, 594 (use of special master); see also Dekro, 540 F.Supp. at 418. The court also finds that there will be a considerable overlap of evidence and proofs between the common law claims and the federal securities claims. Common law of fraud, including New Jersey common law, and the elements of fraud under the securities laws consist of the core elements of material misrepresentation and justifiable reliance. See Koch Industries, Inc. v. Vosko, 494 F.2d 713, 717 (10th Cir.1974) (In affirming a finding" }, { "docid": "743775", "title": "", "text": "(quoting Leist v. Tamco Enterprises, Inc., 1982 Fed.Sec.L.Rep. ¶ 98,633 (S.D.N.Y.)). Defendants’ objection to plaintiffs’ claim of typicality focuses on the potential distinctions between the claims of Aronberg, Schlosser and Goodman, on the one hand, and, on the other, claims of plaintiffs who “actually relied on ... research experts or on other sources,” Defendants’ Memorandum of Law at 17 (quoting Seiler v. E.F. Hutton, 102 F.R.D. 880, 890 (D.N.J.1984)). But the defendants’ attention is misplaced. “The focus of the typicality inquiry in a case such as this is not plaintiff’s behavior, but defendants’.” In re Electro-Catheter Securities Litigation, 1987 Fed.Sec.L.Rep. ¶ 93,643 at ¶ 97,931 (D.N.J.). Put another way, it is defendants’ course of conduct, in this case the release to the press of the allegedly fraudulent and misleading statements, upon which the court must focus in determining typicality. Since the plaintiffs allege that these press releases led to financial losses among all named plaintiffs and class members, and since “defendants did not take any actions that are unique to these named plaintiffs,” Data Access Systems, 103 F.R.D. at 139, the plaintiffs have satisfied the Rule 23(a)(3) typicality requirement. Second, Your Honor also disposes of defendants’ argument that different types of reliance defeat a class certification motion. “[Djiffering types of reliance are present in almost every securities class action.” Data Access Systems, 103 F.R.D. at 139. See also Finkel, et al. v. O’Brien, et al., where Judge Barry states, “[I]t is typical, rather than atypical, for shareholders to rely on various sources of information ... in making investment decisions,” Finkel, et al. v. O’Brien, et al., No. 85-2539, slip op. at 8 (D.N.J. May 23, 1986) (citing Data Access Systems, 103 F.R.D. at 139). This court has recently reasserted this reliance doctrine, in a case in which the defendants opposing class certification argued that differences among the types of data relied on by investors was fatal to class certification. In his recent opinion in In re Western Union Securities Litigation, Chief Judge Gerry reminded the litigants that if differing types of reliance “were enough to defeat class action certification on" }, { "docid": "17653147", "title": "", "text": "allegedly were uniformly misleading. [Any] variations are therefore immaterial” and cannot defeat class treatment. Bresson, 118 F.R.D. at 343. While oral misrepresentations have been held to be insufficiently similar to warrant class certification, written misrepresentations disseminated to all class members have often been found sufficiently similar. Compare Kaser v. Swann, 141 F.R.D. 337, 339 (M.D.Fla.1991) with Heastie v. Community Bank of Greater Peoria, 125 F.R.D. 669, 679 (N.D.Ill.1989). Many cases predicated on securities violations have been certified as class actions with regard to pendent state law fraud claims. See, e.g., In re Southeast Hotel Properties Ltd. Partnership Investor Litig., 151 F.R.D. 597 (W.D.N.C.1993); In re Seagate Tech. Sec. Litig., 115 F.R.D. 264 (N.D.Cal.1987); In re ORFA Sec. Litig., 654 F.Supp. 1449 (D.N.J.1987); In re Energy Sys. Equip. Leasing Sec. Litig., 642 F.Supp. 718 (E.D.N.Y.1986). Courts have also found that where there is a “common legal grievance,” shared by the members of the class, “the benefit from the determination in a class action of the existence of a ... common pattern of fraud outweighs the problems of individual actions involving such other issues as causation, reliance, and damages.” In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 461 A.2d 736, 745-47 (1983). Where plaintiffs in a class action allege similar representations, the reliance issues may be presumed similar as well. See Town of New Castle v. Yonkers Contracting Co., Inc., 131 F.R.D. 38, 43 (S.D.N.Y.1990) (common questions pervade fraudulent concealment inquiry); Fisher Bros. v. Mueller Brass Co., 102 F.R.D. 570, 579 (E.D.Pa.1984) (same); In re Screws Antitrust Litig., 91 F.R.D. 52, 55 (D.Mass.1981) (same); In re Independent Gasoline Antitrust Litig., 79 F.R.D. 552, 559 (D.Md.1978) (same); Reserve Life Ins. Co. v. Kirkland, 917 S.W.2d 836, 843 (Tex.Ct.App.-Houst.1996). Consequently, courts have permitted actions for fraudulent concealment to proceed as a nationwide class if: convinced that individual actions by claimants would impose a strangling harness on the judiciary, as well as the parties____ [and] [s]eparate actions would produce considerable duplication of effort, increase the cost of litigation, create the risk of inconsistent results for parties who are similarly situated, and consume judicial resources" }, { "docid": "1763725", "title": "", "text": "defenses of the representatives and those of the class members. J. Friedenthal, M. Kane, A. Miller, Civil Procedure at 729 (1980); see also Hurwitz v. R.B. Jones Corp., 76 F.R.D. 149, 158 (W.D.Mo.1979); Metge v. Baehler, 77 F.R.D. 470, 475 (S.D.Ia.1978); Graphic Enterprises, 52 F.R.D. at 340. The claims or potential defenses need not be identical, and typicality usually will be satisfied if the claims or defenses of the representatives and the class stem from the same events or rest on the same legal theories. See, e.g., In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984); Jones v. Blinziner, 536 F.Supp. 1181 (N.D.Ind.1982); Holland v. Steele, 92 F.R.D. 58 (N.D.Ga.1981). When the claims or defenses of the representatives and the class are based on the same course of conduct or legal theory, it is thought that the representatives will advance the interest of the class members by advancing his or her own interests. See Zeffiro v. First Pennsylvania Banking & Trust Co., 96 F.R.D. 567 (E.D.Pa.1983); Leist v. Tamco Enterprises, Inc., [1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶98,633 (S.D.N.Y.Mar. 16, 1982). See generally 4 Newberg, Class Actions, § 22.11 at 29 (1977). The advancement of the common interests of class members, however, may be jeopardized when the defendant can assert defenses against the representatives that are not applicable to the majority of the class members. The existence of defenses unique to the class representatives raises concerns that the representatives’ attention and the focus of the litigation will be shifted from issues common to the class to defenses unique to the representatives. See, e.g., Koos v. First National Bank of Peoria, 496 F.2d 1162 (7th Cir.1974); Masri v. Wakefield, 106 F.R.D. 322 (D.Col.1984); Cohen v. Laiti, 98 F.R.D. 581, 583-84 (E.D.N.Y.1983). Although the district court should not consider the merits of the plaintiffs case in deciding the certification issue, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974), when the requirements of commonality and typicality are brought into question, it may be necessary that the court analyze the substantive claims and" }, { "docid": "743773", "title": "", "text": "and 5,000 for the Defined Benefit Plan of Builders, Contractors, Developers Ltd. DISCUSSION OF LAW I. Rule 23(a) Plaintiffs must, in order to conduct their suit as a class action, satisfy the four requirements of Rule 23(a), Fed.R.Civ.P., which provides for certification where (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Defendants do not dispute that plaintiffs’ application satisfies the Rule 23(a)(1) and (2) requirements of numerosity and commonality. Defendants’ Memorandum of Law at 15. Hence, this Report excludes discussion of the requirements of Rule 23(a)(1) and (2) and proceeds directly to an analysis of the 23(a)(3) and (4) requirements. A. Rule 23(a)(3): Typicality Defendants vigorously argue that plaintiffs’ claims are not typical of those of the proposed class. The essence of their objection is that the named plaintiffs, Aron-berg, Schlosser and Goodman, had different levels of investing expertise, they relied on different kinds of information in making their investment decisions, and the variations in their claims would require the defendants to raise unique defenses and proofs. This, say the defendants, renders the three named plaintiffs’ claims potentially atypical of class members’ claims and, therefore, unsuitable for class certification. I respectfully suggest that the defendants’ argument fails, for the following reasons, and I find that plaintiffs meet the requirement of Rule 23(a)(3). In re Data Access Systems Securities Litigation, 103 F.R.D. 130 (D.N.J.1984), Your Honor set forth a four-point analysis of reliance in a fraud-on-the-market case. Data Access Systems, 103 F.R.D. at 139 et seq. This analysis is readily applied to the case at bar. First, Your Honor said, “a plaintiffs claim is typical of the class if it arises from the ‘same event or course of conduct which in turn had given rise to the claims of other class members’ ”, Data Access Systems, 103 F.R.D. at 139" }, { "docid": "6139135", "title": "", "text": "of enforcing investors’ rights, Biben v. Card, [1985-1986 Transfer Binder] Fed. Sec.L.Rep. (CCH) 1192,462, at 92,824 (W.D.Mo. Jan. 6, 1986) [available on WESTLAW, 1986 WL1199]; In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 137, 149 (D.N.J.1984). A. Numerosity and Commonality As noted, defendants do not dispute and I find that the requirements of Fed.R. Civ.P. 23(a)(1) and 23(a)(2) are met. Although the exact number of class members has not been determined, plaintiff's undisputed estimate that shareholders of record of Zayre common stock numbered more than 9,000 during the class period permits the inference that the class is so large that joinder is impracticable. See Abelson v. Strong, Civ. No. 85-0592-S, slip op. at 4 (D.Mass. July 30, 1987) (Skinner, D.J.) [available on WESTLAW, 1987 WL15872]; Kirby v. Cullinet Software, Inc., 116 F.R.D. 303, 306 (D.Mass.1987) (Wolf, D.J.). In addition, common questions of law and fact exist in this case regarding: (1) Whether statements made by defendants contained misrepresentations or omissions; (2) Whether the alleged misrepresentations or omissions were material; (3) Whether defendants acted with scien-ter; and (4) Whether the misrepresentations or omissions inflated the market price of Zayre common stock. B. Typicality and Adequacy Defendants contend first and most emphatically that plaintiff is an atypical and inadequate plaintiff because he will be subject to unique defenses regarding reliance. They argue both that he did not rely on the documents containing the alleged misrepresentations, and that he relied on extraneous factors. Defendants identify as outside influences the publication Value Line and a computer program that incorporated historical data and current price information as well as adjustments for plaintiff’s own subjective preferences. To the extent that defendants’ reliance argument depends on plaintiff’s deposition testimony that he had no specific memory of any of the documents identified in the complaint, but recalled “favorable press,” it extends beyond the scope of class certification and into the merits of this litigation. See Kirby, 116 F.R.D. at 307; Data Access, 103 F.R.D. at 139; M. Berenson Co. v. Faneuil Hall Marketplace, 100 F.R.D. 468, 471 (D.Mass.1984) (McNaught, D.J.). Class certification is not an appropriate" }, { "docid": "5068295", "title": "", "text": "Corp., Etc., Securities Litigation, 122 F.R.D. 251, 255 (C.D.Cal.1988). Numerous other courts have consistently held that even though questions concerning the varying levels of investment sophistication, experience, and individual reliance are properly raised as defenses, they are clearly questions which go to the merits of the case and should not be considered in a certification motion. In re MDC Holdings Securities Litigation, 754 F.Supp. at 802; In re United Energy Corp., Etc., Securities Litigation, 122 F.R.D. at 255. Furthermore, such a determination at this stage of the proceedings is clearly premature and inefficient. Defendant confuses the predominant fact of reliance with the diversity of Plaintiffs manner of relying. The fact of reliance is different from the object relied upon. At this point, we cannot decide the object of reliance issue without improperly intruding on the merits of the claims and defenses. In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139-140 (D.N.J.1984). In any event, the Court agrees with the Eleventh Circuit that since the complaint here alleged a common course of conduct by all defendants, the issues of individual reliance could not predominate over common questions of fact even if the object of reliance differs. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d at 724. (involving the sale of limited partnerships based on false and misleading information). As previously stated, like Kirkpatrick, the core of this case is premised on the claim that the named plaintiffs, and presumably the absent class members, relied on alleged misrepresentations contained in standardized documents or other communications disseminated to the entire class as a result of the defendants common scheme. These common questions of fact presented by the plaintiffs clearly predominate. E. Typicality As a general rule, a plaintiffs claim meets the typicality requirement if it is both legally and factually similar and arises from the same events or course of conduct that gives rise to the claims of other class members. Dura-Bilt Corporation v. Chase Manhattan Corp., 89 F.R.D. 87, 99 (S.D.N.Y.1981); Simpson v. Specialty Retail Concepts, 149 F.R.D. at 99. Generally, allegations that the plaintiffs’ securities purchases arose out of" }, { "docid": "15853639", "title": "", "text": "a sophisticated investor renders him neither devoid of the protection of the securities law nor immune to injury by misrepresentation.” Modell v. Eliot Savings Bank, 139 F.R.D. 17, 22 (D.Mass.1991). In First RepublicBank, at 53,546, the court recognized that the omission of material facts or misrepresentation could have misled even sophisticated investors. Moreover, defendants’ theory, if adopted, would abolish the use of class actions in many securities cases. The court in Vernon J. Rockler & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 345 (D.Minn. 1971), recognized that “[rjeliance is an issue lurking behind every securities fraud claim, and to require that it first be proven, would effectively negate the concept of a 10b-5 class action.” Defendants’ argument was rejected by one court which noted that differing types of reliance are present in almost every securities class action. There will always be some individuals who read the financial statements directly, others who read secondary analyses such as Moody’s or Value Line, and many others who relied on the advice of stockbrokers or friends. If defendants’ argument were to prevail that factual differences of this nature were sufficient to defeat class action certification, there could never be a class action of securities purchasers. Vitiello v. Cicconi (In re Data Access Systems Securities Litigation), 103 F.R.D. 130, 139 (D.N.J.1984), rev’d on other grounds, 843 F.2d 1537 (3d Cir.), cert. denied, 488 U.S. 849, 109 S.Ct. 131, 102 L.Ed.2d 103 (1988). D. Adequacy Rule 23 requires that “the representative parties will fairly and adequately protect the interests of the class.” In Senter, 532 F.2d at 524-25, the circuit recognized that: There are two criteria for determining whether the representation of the class will be adequate: 1) The representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel. Defendants do not challenge Arsam’s claims as to adequacy. The Court notes that Arsam purchased $1 million of notes during the class period. Further, as indicated supra, Arsam’s claims are typical of the rest of the" }, { "docid": "1029912", "title": "", "text": "that the stock was unlawfully inflated.” Fox v. Equimark Corp., Fed. Sec. L. Rep. ¶ 98,384, 1994 WL 560994, *4 (W.D.Pa. July 18, 1994) (citing Simon v. Westinghouse Electric Corp., 73 F.R.D. 480, 484 (E.D.Pa. 1977)). Next, defendants argue that some of the class representatives will be subject to the unique defense of non-reliance. Defendants point to the deposition testimony of certain plaintiffs who purchased stock because they thought MAW would be bought by another company and stock value would increase. Sept. 6, 2002 Dep. of Ronald Gerhart, pp. 40-41; Sept. 10, 2002 Dep. of William Yurkovic, p. 50. Courts have found that similar arguments of non-reliance do not defeat typicality because the defense is not unique and because it goes too far into the merits. See Deutschman, 132 F.R.D. at 373 (citing cases for the holding that “a ‘no-reliance’ defense in a securities fraud class action is not the kind of defense unique to the named plaintiff which would render his claim atypical”); In re Data Access Sys. Securities Litig., 103 F.R.D. 130, 139-40 (D.N.J.1984) (“[E]ven if [defendants] can prove non-reliance as an affirmative defense, this goes to the merits of the case and cannot be considered by the court on a certification motion.”); In re Control Data Corp. Securities Litig., 116 F.R.D. 216, 221 (D.Minn.1986) (defense of market “speculation” on part of plaintiff did not defeat typicality); Ridings v. Canadian Imperial Bank of Commerce Trust Co. (Bahamas) Ltd., 94 F.R.D. 147, 151 (D.Ill.1982). Moreover, that plaintiffs Gerhart and Yurkovic bought stock based on speculation does not prove non-reliance. They perhaps made their purchases in reliance that the price paid accurately reflected the value of MAW stock at the time of purchase, but hoping the value would soon increase. Cf. In re Adobe Systems, Inc. Securities Litig., 139 F.R.D. 150, 155 (N.D.Cal.1991) (calling the argument of non-reliance “virtually meaningless ... in an open market situation”). If the price was artificially inflated at the time Gerhart and Yurkovic bought stock, then they suffered injuries typical of the class. Defendants also argue that plaintiffs Barry and Wendy Bovee will be subject" }, { "docid": "2655265", "title": "", "text": "Pizza Time Theatre Securities Litigation, 112 F.R.D. 15, 18 (N.D.Cal.1986) (court should not conclusively determine choice of law question on motion for class certification). Further, Andersen claims that the necessity to prove individual reliance and causation in the common law fraud and RICO claims causes individual issues to predominate over any common issues. The Court is of the opinion that since Plaintiffs’ RICO and common law fraud claims are predicated upon the same fraudulent acts and material representations and omissions that underlie the federal securities claims in this action, the similarities among them outnumber the differences. See Dekro, 540 F.Supp. at 418. Class action treatment will also prove to be more efficient as it seems likely that the evidence regarding certain elements of these claims will overlap to a great extent. Consequently, the Court finds that the required predominance of common issues is present in connection with both Plaintiffs’ federal and common law claims. In sum, Rule 23(b)(3) does not require that all questions of law or fact be common; it only requires that the common questions predominate over individual questions. “To be sure, individual issues will likely arise in this as in all class action cases. But, to allow various secondary issues of plaintiffs’ claim to preclude certification of a class would render the rule an impotent tool for private enforcement of the securities laws.” Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 99 (S.D.N.Y.1981). The Court finds that Plaintiffs have met this requirement in the present case by sufficiently pleading an alleged conspiracy and common course of conduct by the Defendants to defraud investors. In addition to these common factual issues, the Court also finds that common legal issues relating to the applicability of the 1934 Securities Act, RICO claim and common law fraud cause of action predominate. C. Typicality Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. “A plaintiff’s claim meets the typicality requirement if it arises from the same event or course of conduct that gives rise to claims of other" }, { "docid": "743776", "title": "", "text": "Systems, 103 F.R.D. at 139, the plaintiffs have satisfied the Rule 23(a)(3) typicality requirement. Second, Your Honor also disposes of defendants’ argument that different types of reliance defeat a class certification motion. “[Djiffering types of reliance are present in almost every securities class action.” Data Access Systems, 103 F.R.D. at 139. See also Finkel, et al. v. O’Brien, et al., where Judge Barry states, “[I]t is typical, rather than atypical, for shareholders to rely on various sources of information ... in making investment decisions,” Finkel, et al. v. O’Brien, et al., No. 85-2539, slip op. at 8 (D.N.J. May 23, 1986) (citing Data Access Systems, 103 F.R.D. at 139). This court has recently reasserted this reliance doctrine, in a case in which the defendants opposing class certification argued that differences among the types of data relied on by investors was fatal to class certification. In his recent opinion in In re Western Union Securities Litigation, Chief Judge Gerry reminded the litigants that if differing types of reliance “were enough to defeat class action certification on typicality grounds there could never be a class action for securities purchasers.” In re Western Union Securities Litigation, 120 F.R.D. 629, 634 (D.N.J.1988) (citing Data Access Systems, 103 F.R.D. at 139). Judge Gerry concluded, as I do on strikingly similar facts, What plaintiffs appear to allege, then, is that certain statements, uniformly available to the plaintiff class, were either relied on by the plaintiffs, or affected the market price of [the] common stock which was then itself relied on by the plaintiffs when they purchased ... shares. This indicates to us that the claims of [the plaintiffs and the class] are typical, all arising out of the same set of alleged misrepresentations. Western Union at 634. The third step of the Data Access Systems analysis directs us to the issue of proof of non-reliance. Even should defendants be able to prove non-reliance by plaintiffs, this proof will be made at trial, not on a motion for class certification. Data Access Systems, 103 F.R.D. at 139 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94" }, { "docid": "1763727", "title": "", "text": "defenses of the parties. Hurwitz, 76 F.R.D. at 157. In the present case, the defendants argue that the named plaintiffs’ lack of reliance subjects the plaintiffs to unique defenses. Examples of conduct cited by the defendants in support of their claim of unique defenses are speculation (plaintiff Page), sophistication (plaintiff Steiner), and lack of sophistication (plaintiff Randall). Consequently, the defendants argue, plaintiffs’ federal claims are not typical of the class and certification must be denied. The court rejects the defendants argument that variations in reliance raise unique defenses and preclude a showing of typicality. If reliance is an element of the plaintiffs’ 10b-5 claim, it is one that applies to each class member. As stated by the court in Graphic Enterprises “[rjeliance is an issue lurking behind every securities fraud claim, and to require that it first be proven, would effectively negate the concept of a 10b-5 class action.” Graphic Enterprises, 52 F.R.D. at 345. Acceptance of the defendants’ argument would effectively prevent certification of all non-omission 10b-5 claims. There is nothing unique about a defense of lack of reliance. See Hurwitz, 76 F.R.D. at 158. In re Data Access, 103 F.R.D. at 136. The court is sufficiently persuaded that the focus of the representatives’ attention and the litigation will be on issues common to the class and not on the issue of reliance. Accordingly, the court concludes that plaintiffs’ federal claims are typical of the federal claims of the class. 4. Requirement of Rule 23(a)(4)—Ade-quate Representation The adequate representation provision of Fed.R.Civ.P. 23(a)(4) requires that the interests of the named plaintiffs and the other members of the class coincide and it appears that the plaintiffs and their attorneys will vigorously prosecute the action. See, e.g., In re Data Access Systems, 103 F.R.D. at 140; Peil v. National Semi Conducter Corp., 86 F.R.D. 357, 365 (E.D.Pa.1980). The defendants do not argue that the named plaintiffs and their attorneys will not vigorously prosecute this action. The defendants argue that because they can assert defenses against the plaintiffs based upon lack of reliance, the interests of the named plaintiffs and the class" }, { "docid": "7200797", "title": "", "text": "do not necessarily defeat a showing of typicality. “In proving their own claims, [Randle and Eresian] will necessarily prove the case of earlier purchasers, thereby fairly and adequately representing all purchasers regardless of when their purchase was made.” Dura-Bilt Corp. v. Chase Manhattan Corp., supra at 100. Furthermore, if as the case develops, differences in purchase dates significantly affect the nature of the class members’ claims, the court may, upon motion of any party or sua sponte, divide the class into appropriate subclasses. See Green v. Wolf Corp., 406 F.2d 291, 299 (2d Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). At this time, however, I conclude that the possible differences in claims due to varying purchase dates do not defeat plaintiffs’ showing of typicality under Rule 23(a)(3). Defendants also allege that Randle is atypical because she relied upon the advice of Eresian in making her purchases, rather than upon the market. Reliance on the market, under the fraud-on the market theory, however, includes reliance on “ ‘statements of third parties [such as brokers] that merely reiterated, digested, or reflected the misstated [market] information that forms the basis of the securities fraud claims.’ ” Kirby, supra, at 306 (quoting Grossman v. Waste Management, Inc., 100 F.R.D. 781, 788 (N.D.Ill.1984)). “Such a rule is necessary if the salutary purposes of the ‘fraud on the market’ theory are not to be gutted, for it is likely that many investors rely upon information digested by others and not simply on the market.” Id. Any difference in the source of Randle’s information is insufficient to prevent certification of the class. As noted in In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 137, 149 (D.N.J. 1984), differing types of reliance are present in almost every securities class action. There will always be some individuals who read the financial statements directly, others who read secondary analyses ... and many others who relied on the advice of stockbrokers or friends. If defendants’ argument were to prevail that factual differences of this nature were sufficient to defeat class action certification, there" }, { "docid": "5036428", "title": "", "text": "to represent persons who purchased prior to disclosure. See Hochschuler v. G.D. Searle, supra, 82 F.R.D. at 347, 348 n. 14. In short, plaintiffs have alleged that the defendants’ acts and omissions were pursuant to a “common course of conduct” as required by a long line of precedent. E.g., Blackie v. Barrack, supra, 524 F.2d 891; Green v. Wolf Gorp., supra, 406 F.2d 291; Data Access, supra, 103 F.R.D. 130. There is no apparent antagonism between plaintiffs’ claims and those of other prospective class members. Accordingly, plaintiffs’ claims are sufficiently typical to satisfy Rule 23(a)(3). a. Reliance Defendants contend that plaintiffs’ claims are not typical for an additional reason: plaintiffs cannot demonstrate that the decedent relied on allegedly misleading public statements when he purchased Avant-Garde stock. Recently, the Third Circuit held that it was an abuse of discretion to deny class certification because individual questions of reliance existed. Eisenberg v. Gagnon, supra, 766 F.2d at 786. This court has previously held that even if plaintiffs relied on different pieces of information, the separate issues of reliance did not render plaintiffs’ claims atypical for four reasons. Data Access, supra, 103 F.R.D. at 139-40. First, the Data Access plaintiffs’ claims arose from a common course of conduct. Id. Second, differing types of reliance are present in almost every securities class action. To deny class certification on this basis alone would stifle the incentive to pursue securities claims through class actions. Id. Third, non-reliance as an affirmative defense goes to the merits of a case and is not applicable to a class certification motion. “Reliance is an issue lurking behind every securities fraud claim, and to require that it first be proven, would effectively negate the concept of a 10b-5 class action.” Id., citing Vernon J. Rockier & Co., Inc. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 345 (D.Minn.1971). Fourth, whether individual reliance is a necessary element or whether a fraud on the market theory will eventually apply is itself a question which is common to and typical of the entire class. Data Access, supra, 103 F.R.D. at 140. Individual questions of reliance" }, { "docid": "5036429", "title": "", "text": "reliance did not render plaintiffs’ claims atypical for four reasons. Data Access, supra, 103 F.R.D. at 139-40. First, the Data Access plaintiffs’ claims arose from a common course of conduct. Id. Second, differing types of reliance are present in almost every securities class action. To deny class certification on this basis alone would stifle the incentive to pursue securities claims through class actions. Id. Third, non-reliance as an affirmative defense goes to the merits of a case and is not applicable to a class certification motion. “Reliance is an issue lurking behind every securities fraud claim, and to require that it first be proven, would effectively negate the concept of a 10b-5 class action.” Id., citing Vernon J. Rockier & Co., Inc. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 345 (D.Minn.1971). Fourth, whether individual reliance is a necessary element or whether a fraud on the market theory will eventually apply is itself a question which is common to and typical of the entire class. Data Access, supra, 103 F.R.D. at 140. Individual questions of reliance are “not an impediment” to class certification. Blackie v. Barrack, supra, 524 F.2d at 905. Indeed, “[questions of reliance are simply irrelevant to class determination.” Muth v. Dechert, Price & Rhoads, supra, 70 F.R.D. at 607. The lack of any evidence about the nature of plaintiffs’ decedent’s reliance does not prevent this court from finding that plaintiff has met the typicality requirement of Rule 23(a)(3). 3. Numerosity As noted above, defendants do not challenge plaintiffs’ contention that the proposed class is numerous enough to satisfy Rule 13(a)(1) (class must be so large that joinder of all members would be impracticable). Plaintiffs contend that 1.88 million shares of Avant-Garde stock were sold in the initial public offering and “millions more” were traded during the class period. Plaintiffs estimate that the proposed class will number in the hundreds or thousands once its members are identified. Certification is not barred because the precise number of class members has not been determined. Data Access, supra, 103 F.R.D. at 137; In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322, 335" }, { "docid": "743774", "title": "", "text": "is that the named plaintiffs, Aron-berg, Schlosser and Goodman, had different levels of investing expertise, they relied on different kinds of information in making their investment decisions, and the variations in their claims would require the defendants to raise unique defenses and proofs. This, say the defendants, renders the three named plaintiffs’ claims potentially atypical of class members’ claims and, therefore, unsuitable for class certification. I respectfully suggest that the defendants’ argument fails, for the following reasons, and I find that plaintiffs meet the requirement of Rule 23(a)(3). In re Data Access Systems Securities Litigation, 103 F.R.D. 130 (D.N.J.1984), Your Honor set forth a four-point analysis of reliance in a fraud-on-the-market case. Data Access Systems, 103 F.R.D. at 139 et seq. This analysis is readily applied to the case at bar. First, Your Honor said, “a plaintiffs claim is typical of the class if it arises from the ‘same event or course of conduct which in turn had given rise to the claims of other class members’ ”, Data Access Systems, 103 F.R.D. at 139 (quoting Leist v. Tamco Enterprises, Inc., 1982 Fed.Sec.L.Rep. ¶ 98,633 (S.D.N.Y.)). Defendants’ objection to plaintiffs’ claim of typicality focuses on the potential distinctions between the claims of Aronberg, Schlosser and Goodman, on the one hand, and, on the other, claims of plaintiffs who “actually relied on ... research experts or on other sources,” Defendants’ Memorandum of Law at 17 (quoting Seiler v. E.F. Hutton, 102 F.R.D. 880, 890 (D.N.J.1984)). But the defendants’ attention is misplaced. “The focus of the typicality inquiry in a case such as this is not plaintiff’s behavior, but defendants’.” In re Electro-Catheter Securities Litigation, 1987 Fed.Sec.L.Rep. ¶ 93,643 at ¶ 97,931 (D.N.J.). Put another way, it is defendants’ course of conduct, in this case the release to the press of the allegedly fraudulent and misleading statements, upon which the court must focus in determining typicality. Since the plaintiffs allege that these press releases led to financial losses among all named plaintiffs and class members, and since “defendants did not take any actions that are unique to these named plaintiffs,” Data Access" }, { "docid": "702192", "title": "", "text": "Therefore, plaintiffs do not satisfy the requirements of commonality or typicality because they will be subject to unique defenses concerning reliance. In contradistinction to defendants’ position, however, the prevailing view is that for class certification purposes, security fraud actions are allowed to proceed as class actions “in spite of foreseeable variations on the issue of reliance.” Reichert v. Bio-Medicus, Inc., 70 F.R.D. 71, 75 (D.Minn.1974). See also In re ORFA Securities Litigation, 654 F.Supp. 1449, 1461 (D.N.J.1987); Nelsen v. Craig-Hallum, Inc., 659 F.Supp. 480, 487 (D.Minn.1987); In re Pizza Time Theatre Securities Litigation, 112 F.R.D. 15, 22 (N.D.Cal.1986); In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984). But see Lewis v. Johnson, 92 F.R.D. 758, 759 (E.D.N.Y.1981) (named plaintiffs atypical because subject to unique defenses on issue of reliance); Blumenthal v. Great Am. Mortgage Investors, 74 F.R.D. 508, 511-12 (N.D.Ga.1976) (requiring standardized representations); Gatzke v. Owen, 69 F.R.D. 412, 414 (N.D. Miss.1975) (requiring standardized representations). The fact that all class members did not receive the same information and information from the same source does not preclude class certification. See Dura-Bilt, 89 F.R.D. at 96. “Reliance is an issue lurking behind every securities fraud claim and to require that it first be proven, would effectively negate the concept of a 10b-5 class action.” Vernon J. Rockler and Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 345 (D.Minn.1971). Defendants may raise non-reliance as an affirmative defense at trial but it is inappropriate to raise non-reliance at the certification stage because entry into the intricacies of reliance goes to the merits of the case and cannot be considered by a court on a certification motion. Eisen, 417 U.S. at 178, 94 S.Ct. at 2152-53; Abelson, slip op. at 9-10. Moreover, there are different types of reliance in almost every securities class action and to deny certification where a factual difference in reliance arises would render the class action device nugatory in security fraud cases. As the Federal District Court of New Jersey has indicated: It should be noted that varying issues of reliance exist in practically all securities class actions." }, { "docid": "702193", "title": "", "text": "source does not preclude class certification. See Dura-Bilt, 89 F.R.D. at 96. “Reliance is an issue lurking behind every securities fraud claim and to require that it first be proven, would effectively negate the concept of a 10b-5 class action.” Vernon J. Rockler and Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 345 (D.Minn.1971). Defendants may raise non-reliance as an affirmative defense at trial but it is inappropriate to raise non-reliance at the certification stage because entry into the intricacies of reliance goes to the merits of the case and cannot be considered by a court on a certification motion. Eisen, 417 U.S. at 178, 94 S.Ct. at 2152-53; Abelson, slip op. at 9-10. Moreover, there are different types of reliance in almost every securities class action and to deny certification where a factual difference in reliance arises would render the class action device nugatory in security fraud cases. As the Federal District Court of New Jersey has indicated: It should be noted that varying issues of reliance exist in practically all securities class actions. Even if plaintiff Finkel relied on her stockbroker’s advice, that reliance would not be sufficient to defeat class action certification. Indeed, it is typical, rather than atypical, for shareholders to rely on various sources of information including stockbrokers in making investment decisions. ORFA Securities Litigation, 654 F.Supp. at 1461 (citing Finkel v. O’Brien, Civ. No. 85-2539, slip op. at 14 (D.N.J. May 23, 1986) [available on WESTLAW, 1986 WL 15569]). Defendants argue further that Mr. Kieiak, for example, cannot establish reasonable reliance because his interpretation of the Preliminary Official Statement was idiosyncratic and unreasonable. They point out, inter alia, that the only flaw Mr. Kieiak saw in the Preliminary Official Statement was the alleged failure to disclose that Brethren Care could lease as well as sell life occupancy units. Even if such omission were proven, they argue there was no causal connection between the omission and Mr. Kiciak’s loss, since no individuals were prevented from purchasing the units because the units were being leased. Although some statements in Mr. Kiciak’s deposition suggest that, in purchasing" }, { "docid": "702191", "title": "", "text": "are common questions of law and fact that Mr. Kiciak, who read and relied on the Preliminary Official Statement, including the Touche Ross Feasibility Study, shares with those purchasers of the Notes, such as Ms. Gorsey and Mr. Whalen, who relied exclusively on oral representations by brokers of Simon. Mr. Kiciak, they say, is typical of all original purchasers of the Notes since he purchased the Notes during the same time period relying on the same material omissions and deceptive sales literature and prospectuses as the other purchasers. Class members who received either official statement have claims against defendants based on misrepresentations and material omissions in the official statements; whereas, those original purchasers who did not receive an official statement have claims based on material omissions. Plaintiffs assert that the overlap is sufficient to satisfy both the commonality and typicality requirements of Fed.R.Civ.P. 23(a).. Defendants argue that the distinction in reliance between those class members who read the official statements and those class members who did not vitiates typicality and commonality of the class representative. Therefore, plaintiffs do not satisfy the requirements of commonality or typicality because they will be subject to unique defenses concerning reliance. In contradistinction to defendants’ position, however, the prevailing view is that for class certification purposes, security fraud actions are allowed to proceed as class actions “in spite of foreseeable variations on the issue of reliance.” Reichert v. Bio-Medicus, Inc., 70 F.R.D. 71, 75 (D.Minn.1974). See also In re ORFA Securities Litigation, 654 F.Supp. 1449, 1461 (D.N.J.1987); Nelsen v. Craig-Hallum, Inc., 659 F.Supp. 480, 487 (D.Minn.1987); In re Pizza Time Theatre Securities Litigation, 112 F.R.D. 15, 22 (N.D.Cal.1986); In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984). But see Lewis v. Johnson, 92 F.R.D. 758, 759 (E.D.N.Y.1981) (named plaintiffs atypical because subject to unique defenses on issue of reliance); Blumenthal v. Great Am. Mortgage Investors, 74 F.R.D. 508, 511-12 (N.D.Ga.1976) (requiring standardized representations); Gatzke v. Owen, 69 F.R.D. 412, 414 (N.D. Miss.1975) (requiring standardized representations). The fact that all class members did not receive the same information and information from the same" } ]

[ { "docid": "13660304", "title": "", "text": "the Center. Therefore, the Center’s liability as principal under Title VII is clear. Because punitive damages are not available under Title VII, see Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1140, 103 L.Ed.2d 201 (1989), we also should determine whether, under § 1981, the district court correctly held the Center, a private employer, liable for the acts of Richard and Booker, supervisory employees. This court has held that vicarious liability against a public employer is not allowed under § 1981. See Jett v. Dallas Independent School Dist., 798 F.2d 748, 762 (5th Cir.1986), reh’g en banc denied, 837 F.2d 1244, 1248, aff'd in part and remanded in part, — U.S. —, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Explicitly left open by the United States Supreme Court and this court, however, is whether the doctrine of respondeat superior applies against a private employer under § 1981. See General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 395, 102 S.Ct. 3141, 3152, 73 L.Ed.2d 835 (1982) (“On the assumption that respondeat superior applies to suits based on § 1981, there is no basis for holding ... the employers ... liable under that doctrine without evidence that an agency relationship existed.”); Jett, 798 F.2d at 763 (5th Cir.1986), reh’g en banc denied, 837 F.2d at 1248 n. 4 (citing General Building Contractors Ass’n v. Pennsylvania). Other circuits have held that, based on the doctrine of respondeat superior or general principles of agency law, liability may be imposed under § 1981 against a private employer for the acts of an employee. See Vance v. Southern Bell Telephone and Telegraph Co., 863 F.2d 1503, 1512 (11th Cir.1989) (corporate employer may be held liable in § 1981 claim under two theories, “through respondeat superior [for the discriminatory acts of employees where] ... the employer knew or should have known” but fails to take remedial action and through general agency principles for the acts of supervisors); Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1430 (D.C.Cir.1988) (applying agency law, international union" } ]

[ { "docid": "23650517", "title": "", "text": "5th Amendment and 14th Amendment” is presumably an equal protection claim. Carter, however, does not mention either Amendment in his brief; therefore, obviously, he does not mention equal protection. To the extent an equal protection claim might reach the same conduct for which we have already recognized qualified immunity against the § 1981 claims, Carter has failed to make the requisite showing. “We do ‘not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs’ ”. Pierce, 117 F.3d at 872 (internal citations omitted; quoting Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.1992)). B. Regarding Miller, the only claim recognized by the district court is under § 1983 for deliberate indifference. Felton I, at 12-13. It held: “Although Carter has offered evidence suggesting that Miller may have been aware of racial bias and discrimination by Thomas, the evidence fails to demonstrate discriminatory intent on behalf of Miller”. Id. at 12. As noted, the court also recognized, however: “[A]c-cording to the Fifth Circuit, a supervisor may be liable under § 1983 if ‘that official, by action or inaction, demonstrates a deliberate indifference to a plaintiffs constitutionally protected rights’ ”. Id. at 12-13 (quoting Southard, 114 F.3d at 551). In that light, the court concluded: “Because Carter has presented sufficient evidence to create a genuine issue as to whether Miller was aware of racial discrimination and did nothing to prevent it, he is not entitled to qualified immunity....” Id. at 13. For such liability, however, the supervisor’s conduct must have caused a constitutional injury. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454-55 (5th Cir.) (en banc), cert. denied, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). There are none here. Accordingly, Miller is entitled to qualified immunity. III. For the foregoing reasons, the denial of qualified immunity from the §§ 1981 and 1983 claims against Thomas and Miller, in their individual capacities, is REVERSED and this case is REMANDED for further proceedings consistent with this opinion. REVERSED and REMANDED." }, { "docid": "22326398", "title": "", "text": "34 (\"Section 1983 liability can be imposed upon individual employers, or responsible supervisors, for failing properly to investigate and address allegations of sexual harassment when through this failure, the conduct becomes an accepted custom or practice of the employer.\"). A policy, custom, or practice may also be inferred where \"the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.\" Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997) (internal quotation marks omitted). Liability of a municipal defendant or an individual sued in his official capacity under § 1981 and § 1983 cannot, however, be premised on a theory of respondeat superior. See, e.g., Jett, 491 U.S. at 733-36, 109 S.Ct. 2702 (§ 1981); Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (§ 1983). Third, although as discussed in Part II.B.2. above, Title VII claims are not cognizable against individuals, individuals may be held liable under §§ 1981 and 1983 for certain types of discriminatory acts, including those giving rise to a hostile work environment, see, e.g., Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d at 75 (§ 1981); Hayut v. State University of New York, 352 F.3d 733, 753-54 (2d Cir.2003) (§ 1983). Thus, Patterson's hostile work environment claims against the individual defendants, sued in their individual capacities under §§ 1981 and 1983, are not automatically dismissable. [26] Fourth, although in certain circumstances a Title VII claim may be established through proof of a defendant's mere negligence, without a showing of discriminatory intent, see, e.g., Richardson v. New York State Department of Correctional Service, 180 F.3d at 441-42 (employer subject to liability if negligent in responding appropriately to a complaint of racial harassment by co-workers), a plaintiff pursuing a claimed violation of § 1981 or denial of equal protection under § 1983 must show that the discrimination was intentional, see Tolbert v. Queens College, 242 F.3d 58, 69 (2d Cir.2001) (§ 1981); Back v. Hastings on Hudson Union Free School District, 365 F.3d" }, { "docid": "23028655", "title": "", "text": "a basis of respondeat superior when the claim is one of racial discrimination under § 1981.” Id. (internal quotation marks omitted). On appeal the Fifth Circuit “rejected the District Court’s conclusion that the [school district’s] liability for [the principal’s] actions could be predicated on a theory of respondeat superior under § 1981,” noting that the Supreme Court in Monell v. Department of Social Services City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), had held that “Congress did not intend municipalities to be subject to vicarious liability for the ... violations of their employees.” Jett, 491 U.S. at 710, 109 S.Ct. 2702. In rejecting a suggestion for rehearing en banc, the court issued a second opinion, again holding that “respondeat superior liability against local governmental entities was unavailable under § 1981.” Id. The Supreme Court granted certiorari. It stated that the two questions before it were “whether 42 U.S.C. § 1981 [which at the time was identical to the present § 1981(a)] provides an independent federal cause of action for damages against local governmental officials, and whether that cause of action is broader than the damages remedy available under 42 U.S.C. § 1983, such that a municipality may be held liable for its employees’ violations of § 1981 under a theory of respondeat superior.” Id. at 705, 109 S.Ct. 2702. Although noting that it had previously recognized an implied damages remedy for violations of § 1981 by private actors, see id. at 731, 109 S.Ct. 2702, the Court refused to extend that remedy to encompass claims against state actors, such as municipalities. Examining the legislative history of §§ 1981, 1983, and 1988, four members of the Court determined that the remedy provided by § 1983 was intended to be the sole remedy for civil-rights violations by state actors. See id. at 733-36, 109 S.Ct. 2702. They said “that the express ‘action at law* provided by § 1983 for the ‘deprivations of any rights, privileges, or immunities secured by the Constitution and 'laws’ provides the exclusive federal damages remedy for the violation of the rights guaranteed" }, { "docid": "23650500", "title": "", "text": "§ 1981. Instead, it is for violations of “constitutional rights ... se cured pursuant to the 5th Amendment and Hth Amendment of the United States Constitution”: (1) an equal protection claim (presumably) against Thomas; and (2) a deliberate indifference claim against Miller. The § 1981 claim is independent (Count 1). In sum, Carter has failed to invoke the only remedy available to him for the claimed deprivation of his § 1981 rights — he has essentially failed to state a claim. b. In any event, and as discussed below, even if Carter can maintain an independent § 1981 claim against Thomas in his individual capacity, or even if his complaint is sufficiently broad to incorporate the alleged § 1981 deprivations into his § 1983 claim, or even if amendment were permitted on remand, Thomas is nevertheless entitled to qualified immunity against the discrimination claims involved in this interlocutory appeal — racial harassment and disparate treatment. “To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerns one or more of the activities enumerated in the statute [e.g., enforcement of a contract].” Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir.1994). (1) A harassment claim under § 1981 has not always been “clearly established”. For the pre-amended version of § 1981, and pursuant to Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), employment discrimination claims alleging racial harassment [were] “not actionable under § 1981, which covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process. Rather, such conduct is actionable under the more expansive reach of Title VII ”. Lavender v. V & B Transmissions and Auto Repair, 897 F.2d 805, 806 (5th Cir.1990) (emphasis added; quoting Patterson, 491 U.S. at 179-80, 109 S.Ct. 2363). However: In the Civil Rights Act of 1991," }, { "docid": "12608245", "title": "", "text": "respondeat superior applies to claims under §§ 1985 and 1986. We therefore affirm the district court’s dismissal of Counts II and III as against the defendant Postal Service. Springer’s claim under § 1981, however, is much more formidable. Section 1981 derives from the Civil Rights Act of 1866 and was intended “to eradicate all discrimination against blacks and to secure for them full freedom and equality in civil rights.” Mahone v. Waddle, 564 F.2d 1018 (3d Cir.1977) (emphasis in original; footnote omitted). Racial animus is a necessary element of a claim under this section. General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Although Springer does not allege racial animus on the part of the Postal Service itself, he asserts that the Postal Service may be held liable for McGlincey’s and Gretchen’s actions on the theory of respondeat superior. The respondeat superior doctrine has generally been held to be inapplicable to actions brought under § 1983. See, e.g., Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Ross v. Reed, 719 F.2d 689 (4th Cir.1983); Glick v. Sargent, 696 F.2d 413 (8th Cir.1983); Ellis v. Blum, 643 F.2d 68 (2d Cir.1981). The Supreme Court has declined to state whether the doctrine applies to § 1981 actions. See General Bldg. Contractors Ass’n, 458 U.S. at 392, 102 S.Ct. at 3150. Most of the courts that have addressed the question have held that respondeat superior does apply to § 1981 actions against public employers. In Haugabrook v. City of Chicago, 545 F.Supp. 276 (N.D.Ill.1982), the court, citing the Supreme Court’s decision in Monell v. Department of Social Services, noted the inapplicability of respondeat superi- or to the plaintiff’s § 1983 claims, and granted the defendant City’s motion for summary judgment as to those claims. The court denied the City’s motion for summary judgment on the § 1981 claim, however, holding that the doctrine did apply to § 1981 because of “the substantial differences between the two statutes as indicated by their respective language, purpose, and legislative" }, { "docid": "4428536", "title": "", "text": "Motion to Dismiss A. The Section 1981 Claim Against New York City Defendants have requested that this Court dismiss the claim, under 42 U.S.C. § 1981 against the City of New York, pursuant to Fed.R.Civ.P. 12(b)(6) , arguing that the doctrine of respondeat superior is inapplicable to claims brought under 42 U.S.C. § 1981. Plaintiff contends that the City can be held liable under § 1981 on a vicarious liability theory. The respondeat superior doctrine has generally been held to be inapplicable to actions brought under 42 U.S.C. § 1983. See, e.g., Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Ellis v. Blum, 643 F.2d 68 (2d Cir.1981). However, both the Supreme Court and the Second Circuit have declined to state whether the doctrine applies to § 1981 actions. See General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 392, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Krulik v. Board of Education of the City of New York, 781 F.2d 15, 23 (2d Cir.1986). The Monell Court’s rejection of respondeat superior in § 1983 claims against municipalities has no bearing on § 1981 claims. See, e.g., Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F.2d 189, 194 n. 9 (6th Cir.1985) (citations omitted); Pennsylvania v. Local Union 542, 469 F.Supp. 329, rev’d on other grounds sub. nom. General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). But see Jett v. Dallas Independent School Dist., 798 F.2d 748 (5th Cir.1986), reh’g denied, 837 F.2d 1244 (1988), cert. granted — U.S. -, 109 S.Ct. 363, 102 L.Ed.2d 353 (1988). “Most of the courts that have addressed the question have held that respondeat superior does apply to § 1981 actions against public employers.” Springer v. Seaman, 821 F.2d 871, 880 (1st Cir.1987) (footnote omitted). See also Dickerson v. City Bank & Trust Co., 590 F.Supp. 714 (D.Kan.1984); Haugabrook v. City of Chicago, 545 F.Supp. 276 (N.D.Ill.1982); Jones v. Local 520, Int’l Union of Operating Eng’rs, 524 F.Supp. 487 (S.D.Ill.1981); Ganguly v. New York State Dept." }, { "docid": "23650499", "title": "", "text": "of § 1981 rights, such claim must also be pursued under the remedial provisions of § 1983.” (emphasis in original)). Needless to say, requiring § 1981 claims against state actors to be pursued through § 1983 is not a mere pleading formality. One of the reasons why the § 1981 claim in this situation must be asserted through § 1983 follows. Although respondeat superior liability may be available through § 1981, see, e.g., Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 395, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Flanagan v. Aaron E. Henry Cmty. Health Servs. Ctr., 876 F.2d 1231, 1234-36 (5th Cir.1989), it is not available through § 1983, see, e.g., Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.2002). True, that form of liability against the governmental entity has no direct bearing on qualified immunity from individual capacity liability, but it is germane to whether a claim has been stated, bearing on the first prong of qualified immunity analysis. Again, Carter’s § 1983 claim (Count 3) does not include § 1981. Instead, it is for violations of “constitutional rights ... se cured pursuant to the 5th Amendment and Hth Amendment of the United States Constitution”: (1) an equal protection claim (presumably) against Thomas; and (2) a deliberate indifference claim against Miller. The § 1981 claim is independent (Count 1). In sum, Carter has failed to invoke the only remedy available to him for the claimed deprivation of his § 1981 rights — he has essentially failed to state a claim. b. In any event, and as discussed below, even if Carter can maintain an independent § 1981 claim against Thomas in his individual capacity, or even if his complaint is sufficiently broad to incorporate the alleged § 1981 deprivations into his § 1983 claim, or even if amendment were permitted on remand, Thomas is nevertheless entitled to qualified immunity against the discrimination claims involved in this interlocutory appeal — racial harassment and disparate treatment. “To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the" }, { "docid": "4428537", "title": "", "text": "rejection of respondeat superior in § 1983 claims against municipalities has no bearing on § 1981 claims. See, e.g., Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F.2d 189, 194 n. 9 (6th Cir.1985) (citations omitted); Pennsylvania v. Local Union 542, 469 F.Supp. 329, rev’d on other grounds sub. nom. General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). But see Jett v. Dallas Independent School Dist., 798 F.2d 748 (5th Cir.1986), reh’g denied, 837 F.2d 1244 (1988), cert. granted — U.S. -, 109 S.Ct. 363, 102 L.Ed.2d 353 (1988). “Most of the courts that have addressed the question have held that respondeat superior does apply to § 1981 actions against public employers.” Springer v. Seaman, 821 F.2d 871, 880 (1st Cir.1987) (footnote omitted). See also Dickerson v. City Bank & Trust Co., 590 F.Supp. 714 (D.Kan.1984); Haugabrook v. City of Chicago, 545 F.Supp. 276 (N.D.Ill.1982); Jones v. Local 520, Int’l Union of Operating Eng’rs, 524 F.Supp. 487 (S.D.Ill.1981); Ganguly v. New York State Dept. of Mental Hygiene, 511 F.Supp. 420 (S.D.N.Y.1981); Pennsylvania v. Local Union 542, supra; cf. EEOC v. Gaddis, 733 F.2d 1373 (10th Cir.1984) (private employer); Miller v. Bank of America, 600 F.2d 211 (9th Cir.1979) (same). As a general rule, the civil rights statutes should be construed individually since “[different problems of statutory meaning are presented by two enactments deriving from different constitutional sources.” District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602, 605, 34 L.Ed.2d 613 (1972), (quoting Monroe v. Pape, 365 U.S. 167, 205-06, 81 S.Ct. 473, 494, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting)). Section 1983 was enacted to enforce the fourteenth amendment as part of the Civil Rights Act of 1871, whereas section 1981 was originally enacted under the thirteenth amendment as section 1 of the Civil Rights Act of 1866 and later reenacted under the fourteenth amendment as section 16 of the Enforcement Act of May 31, 1870. In determining that a municipality cannot be held vicariously liable under § 1983 for the unconstitutional acts of its employees," }, { "docid": "20733774", "title": "", "text": "civil rights under § 1981.” Oden, 246 F.3d at 463 (citing Jett, 491 U.S. at 735-36, 109 S.Ct. 2702); accord Felton, 315 F.3d at 481. In Jett, the Supreme Court held that “the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.” 491 U.S. at 733, 109 S.Ct. 2702; accord Felton, 315 F.3d at 481-82; Oden, 246 F.3d at 462-64. The Supreme Court further broadened the language in the opinion to include all state actors, holding that “the express ‘action at law* provided by § 1983 for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws,’ provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.” Jett, 491 U.S. at 735, 109 S.Ct. 2702 (quoting 42 U.S.C. § 1983); see also Felton, 315 F.3d at 481-82. Thus, “ ‘[t]he Supreme Court did not make a distinction between state entities and individuals acting pursuant to color of state law.’ ” Felton, 315 F.3d at 482 (quoting Ebrahimi v. City of Huntsville Bd. of Educ., 905 F.Supp. 993, 996 (N.D.Ala.1995)); Jett, 491 U.S. at 735, 109 S.Ct. 2702. In Felton and Oden, the Fifth Circuit recognized that Jett remains controlling law on this issue despite the changes to § 1981 effected by the Civil Rights Act of 1991. See Felton, 315 F.3d at 481; Oden, 246 F.3d at 463-64; see also McCall v. Dallas Indep. Sch. Dist., 169 F.Supp.2d 627, 639-40 (N.D.Tex,2001). Moreover, the Fifth Circuit observed that “requiring § 1981 claims against state actors to be pursued through § 1983 is not a mere pleading formality,” noting that “[although respondeat superior liability may be available through § 1981, it is not available through § 1983.” Felton, 315 F.3d at 482 (citations omitted) (emphasis in original). Thus, despite her argument to the contrary, Gallentine has no independent cause of action against Defendants under 42 U.S.C. § 1981. Instead, she must assert a cause" }, { "docid": "20733773", "title": "", "text": "at 1087)). Liability cannot be imposed under § 1981 absent proof of purposeful discrimination. See Gen. Bldg. Contractors Ass’n, Inc., 458 U.S. at 390, 102 S.Ct. 3141; Arguello v. Conoco, Inc., 207 F.3d 803, 809 n. 9 (5th Cir.2000); Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 536 (9th Cir.1982). A public sector employee, however, cannot assert a viable § 1981 claim against a state entity or state actor independent of § 1983. The Fifth Circuit, relying on Supreme Court authority, has held “that § 1981 [does] not provide a separate cause of action against local government entities.” Oden, 246 F.3d at 462 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)); see Felton, 315 F.3d at 481; Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 341 n. 16 (5th Cir.2002), cert. denied, 537 U.S. 1108, 123 S.Ct. 885, 154 L.Ed.2d 780 (2003). Instead, “plaintiffs must assert a cause of action against state actors under § 1983 to remedy violations of civil rights under § 1981.” Oden, 246 F.3d at 463 (citing Jett, 491 U.S. at 735-36, 109 S.Ct. 2702); accord Felton, 315 F.3d at 481. In Jett, the Supreme Court held that “the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.” 491 U.S. at 733, 109 S.Ct. 2702; accord Felton, 315 F.3d at 481-82; Oden, 246 F.3d at 462-64. The Supreme Court further broadened the language in the opinion to include all state actors, holding that “the express ‘action at law* provided by § 1983 for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws,’ provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.” Jett, 491 U.S. at 735, 109 S.Ct. 2702 (quoting 42 U.S.C. § 1983); see also Felton, 315 F.3d at 481-82. Thus, “ ‘[t]he Supreme Court did not make a distinction" }, { "docid": "7638234", "title": "", "text": "Cir.1979). The Court notes, in passing, that this question was left open by the Supreme Court in General Bldg. Contractors v. Pa., 458 U.S. 375, 392, 102 S.Ct. 3141, 3151, 73 L.Ed.2d 835 (“Even if the doctrine of respondeat superior were broadly applicable to suits based on § 1981 ... ”) and 395 (“On the assumption that respondeat superior applies to suits based on § 1981, ... ”) (1982). Recognizing the major distinctions in the legislative history and language between §§ 1981 and 1983, at least one other court has held that the “municipal immunity” provided under § 1983 would not extend to actions under § 1981. Mahone v. Waddle, 564 F.2d 1018, 1031 (3d Cir.1977). However, even if the doctrine of respondeat superior creates liability on the part of an employer for the acts of an employee in violation of § 1981, there could be no dispute that, in this case, defendants Toll, Gluckstern, and Kirwan were not the employers of those responsible for the denial of the plaintiff’s application. Accordingly, their motion to dismiss all claims against them under § 1981 will be granted. The defendants make the same claim with regard to Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) which imposes liability for employment discrimination on “employers,” which are defined as. including both those individuals or entities which are commonly thought of as “employers” and their “agents.” ... the term “employer” under Title VII has been construed in a functional sense to encompass persons who are not employers in conventional terms, but who nevertheless control some aspects of an individual’s compensation, terms, conditions or privileges of employment. Spirt v. Tchrs. Ins. and Annuity Ass’n., 475 F.Supp. 1298, 1308 (S.D.N.Y.1979), aff'd in relevant part, 691 F.2d 1054 (2d Cir.1982). The term “agents” has been broadly construed by the courts. Liberal construction is to be given to the definition of employer as defined by the Civil Rights Acts ... For Title VII purposes, it is not necessary for individuals or the Council to have total control or ultimate authority over hiring" }, { "docid": "23650494", "title": "", "text": "decisions concerning government employment contracts. Likewise, when a plaintiff asserts a cause of action under § 1981 for discrimination in the terms and conditions of a municipal employment contract, the proper defendant is the government employer in his official capacity. Id. at 464 (internal citations omitted; emphasis added). Oden speaks of discrimination in the terms and conditions of a municipal employment contract; we see no reason not to extend its holding to discrimination in the terms and conditions of state employment contracts. (3) The final point is whether, as Carter has done in this action, a state employee can assert a claim against his supervisor, in his individual capacity, for violation of § 1981, when the § 1981 right has not been asserted through § 1983. Carter’s independent § 1981 claim — not brought through § 1983— against Thomas in his individual capacity is contrary to Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989): “[T]he express ‘action at law’ provided by § 1988 for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws,’ provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor”. Id. at 735, 109 S.Ct. 2702 (emphasis added). Again, Oden comes into play. In considering additional § 1981 claims against the county and its sheriff in his official capacity, Oden characterized Jett as holding “plaintiffs must assert a cause of action against state actors under § 1988 to remedy violations of civil rights under § 1981 ”. Oden, 246 F.3d at 463 (emphasis added). Oden recognized some doubt had been cast on Jett’s viability by the above-referenced addition in 1991 of subsection (c) to § 1981: “The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law ”. 42 U.S.C. § 1981(c) (emphasis added). Oden nonetheless held: “Because Congress neither expressed its intent to overrule Jett, nor explicitly created a remedy against state actors in addition to § 1983, we" }, { "docid": "20733776", "title": "", "text": "of action under § 1983 to remedy alleged violations of § 1981. Gallentine’s independent § 1981 claims against Defendants are dismissed. D. § 1983 Claims Defendants also cite numerous grounds for dismissing Gallentine’s § 1983 claims against Quesada in his individual capacity and against the Housing Authority: (1) Title VII is Gallentine’s exclusive remedy for employment discrimination and retaliation; (2) the complaint fails to state a plausible § 1983 claim against the Housing Authority; (3) the complaint fails sufficiently to allege Quesada’s personal involvement in the alleged discrimination and retaliation; and (4) the complaint fails to overcome Quesada’s qualified immunity. 1. Viability of § 1983 Claims in the Employment Discrimination Context Defendants assert that Gallentine cannot state a § 1983 claim because Title VII is her exclusive remedy for the discrimination and retaliation she allegedly suffered. Specifically, they contend that because all of Gallentine’s claims are based on facts alleging discrimination or violations of the Equal Protection Clause, they must be pursued through Title VII. Although allowing a plaintiff to pursue a separate claim for a violation of a constitutional or statutory right is proper, “[allowing a plaintiff to state a discrimination claim under § 1983 as well would enable him to sidestep the detailed and specific provisions of Title VII.” Jackson v. City of Atlanta, 73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996). Nevertheless, “even if a plaintiff alleges the same conduct for both Title VII and § 1981 claims, he or she may seek redress under both statutes, as long as the conduct violates both Title VII and a separate constitutional or statutory right.” Evans, 246 F.3d at 356 n. 9; accord Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565 (5th Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990). The holding in Evans applies with equal force to § 1983 claims. 246 F.3d at 356 n. 9. Gallentine’s complaint appears to state that her § 1983 claim is brought to remedy Defendants’ violations of § 1981. Moreover, her response clarifies that" }, { "docid": "6144123", "title": "", "text": "Local Law Number 1 of 1982 § 21 A-13 is facially unconstitutional. This, combined with the general factual allegations found in paragraphs 1 through 64 constitute a sufficient claim that state actors have violated plaintiffs due process rights under the Fourteenth Amendment. Thus, plaintiff has properly pleaded a § 1988 claim. 2. Monell Claim For a valid claim of municipal liability under § 1983 the municipality itself must be the wrongdoer rather than one of its employees because § 1983 liability cannot be based on a respondeat superior theory. Monell v. Department of Social Serv., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978). A valid claim of municipal liability under § 1983 must be based on official municipal policy or custom pursuant to which a constitutional violation was committed. Id. at 689-91, 98 S.Ct. at 2035-36. Plaintiff does make a claim in his complaint that the Village of Hancock failed to use care in the training and hiring of village employees who investigated the fire on his property. However, this allegation is made as part of the pendant state law negligence claim only and is not made part of the preceding federal civil rights claims. Therefore, insofar as plaintiff has attempted to set forth a Monell claim against the Village of Hancock, he has failed, and so any such Monell claim is dismissed. 3. Claim Under 42 U.S.C. § 1981 The law is clear that in order to state a claim under § 1981 the plaintiff must plead facts which establish that defendants’ actions were racially motivated and purposefully discriminatory. General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982); Albert v. Carovano, 851 F.2d 561, 571 (2d Cir.1988). The key question in examin ing the sufficiency of a claim based on § 1981 is whether plaintiff has “assembled specific facts adequate to show or raise a plausible inference that [he was] subjected to race-based discrimination.” Dartmouth Review v. Dartmouth College, 889 F.2d 13, 17 (1st Cir.1989). “Under § 1981, the events of the intentional and purposeful discrimination," }, { "docid": "21287133", "title": "", "text": "under ,a theory of ..direct liability,, claims for racial discrimination, retaliation, and hostile work environment; and (2) claims for aiding and abetting the District’s discriminatory and retaliatory conduct. Third, thé Plaintiff’s “employment discrimination claims under § 1981 are subsumed within [his] claims .under § 1983, which is the vehicle for enforcing those rights.” McKinney v. Bennett, 06-cv-13486, 2009 WL 2981922, at *5 n. 1 (S.D.N.Y. Sept. 16, 2009); see Hill v. City of New York, 136 F.Supp.3d 304, 329-30, 2015 WL 5719656, at *8 (E.D.N.Y.2015) (“[Wjhen the defendant sued for discrimination in violation of § 1981 is a municipality or individual sued in his official capacity, § 1983 supplies the exclusive remedy for violation of rights guaranteed under § 1981”); Gilbert v. Dep’t of Corr., 10-cv- 1877, 2014 WL 6471415, at *4, 2014 U.S. Dist. LEXIS 161476, at *9-10 (D.Conn. Nov. 18, 2014) (“The express causé of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed by § 1981 by state governmental units. When a state employee seeks to hold an individual fellow state employee liable in damages for violation of § 1981 rights, such claim must also be pursued under the remedial provisions of § 1983” (emphasis in original) (internal quotation marks and citation omitted)); Zaniewska v. City of New York, 11-cv-2446, 2013 WL 3990751, at *8, 2013 U.S. Dist. LEXIS 109918, at *28-29 (E.D.N.Y. Aug. 5, 2013) (“[W]here defendants are state actors, Section 1983, not Section 1981, is the appropriate vehicle through which a plaintiff may pursue discrimination claims for damages”), aff'd, 569 Fed.Appx. 39 (2d Cir.2014). Accordingly, although not specifically pled as such, the Plaintiff’s § 1981 and § 1983 claims will be discussed collectively in this opinion. On July .2,2015, the Defendants filed the instant motion, pursuant to Fed.R.Civ.P. 56, seeking summary judgment and dismissal of the complaint. For the reasons that follow, the motion is granted in part and denied in part. II. Discussion A. The Applicable Legal Standards 1. Summary Judgment under Fed. R.Civ.P.56 Under Fed.R.Civ.P. 56(a), “[t]he court shall grant summary judgment if the" }, { "docid": "20733772", "title": "", "text": "at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 694). “As a general matter, section 1981 serves as a deterrent to employment discrimination and a means of punishing employers who discriminate on the basis of race. Section 1981 also provides a means of compensating a victim of racial discrimination.” Carroll v. Gen. Accident Ins. Co. of Am., 891 F.2d 1174, 1176 (5th Cir.1990). In order to establish a claim under § 1981, it must be shown that “(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give, evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir.1993); see Causey v. Sewell Cadillac Chevrolet, Inc., 394 F.3d 285, 288-89 (5th Cir.2004); Felton, 315 F.3d at 483 (citing Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir.1994) (citing Mian, 7 F.3d at 1087)). Liability cannot be imposed under § 1981 absent proof of purposeful discrimination. See Gen. Bldg. Contractors Ass’n, Inc., 458 U.S. at 390, 102 S.Ct. 3141; Arguello v. Conoco, Inc., 207 F.3d 803, 809 n. 9 (5th Cir.2000); Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 536 (9th Cir.1982). A public sector employee, however, cannot assert a viable § 1981 claim against a state entity or state actor independent of § 1983. The Fifth Circuit, relying on Supreme Court authority, has held “that § 1981 [does] not provide a separate cause of action against local government entities.” Oden, 246 F.3d at 462 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)); see Felton, 315 F.3d at 481; Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 341 n. 16 (5th Cir.2002), cert. denied, 537 U.S. 1108, 123 S.Ct. 885, 154 L.Ed.2d 780 (2003). Instead, “plaintiffs must assert a cause of action against state actors under § 1983 to remedy violations of" }, { "docid": "23650498", "title": "", "text": "for violation of the rights guaranteed in § 1981 by state governmental units” (emphasis added)). Thomas is a state actor for purposes of this action. “[S]tate employment is generally sufficient to render the defendant a state actor”. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting Lugar). Accordingly, it appears § 1983 constitutes Carter’s exclusive remedy for the claimed § 1981 violation by Thomas. See, e.g., Ebrahimi v. City of Huntsville Bd. of Educ., 905 F.Supp. 993, 996 (N.D.Ala.1995) {“Jett is clear that a claim for damages against a state actor for violation of rights contained in § 1981 must be redressed pursuant to the explicit remedial provisions of § 1983. The Supreme Court did not make a distinction between state entities and individuals acting pursuant to col- or of state law. Therefore, when a state employee seeks to hold an individual fellow state employee liable in damages for violation of § 1981 rights, such claim must also be pursued under the remedial provisions of § 1983.” (emphasis in original)). Needless to say, requiring § 1981 claims against state actors to be pursued through § 1983 is not a mere pleading formality. One of the reasons why the § 1981 claim in this situation must be asserted through § 1983 follows. Although respondeat superior liability may be available through § 1981, see, e.g., Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 395, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Flanagan v. Aaron E. Henry Cmty. Health Servs. Ctr., 876 F.2d 1231, 1234-36 (5th Cir.1989), it is not available through § 1983, see, e.g., Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir.2002). True, that form of liability against the governmental entity has no direct bearing on qualified immunity from individual capacity liability, but it is germane to whether a claim has been stated, bearing on the first prong of qualified immunity analysis. Again, Carter’s § 1983 claim (Count 3) does not include" }, { "docid": "23650497", "title": "", "text": "1866 Act [(precursor to § 1981)] and the 1871 Act [ (precursor to § 1983) ] ... indicates that Congress intended that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors alleging violation of the rights declared in § 1981.” (emphasis added)); id. at 733, 109 S.Ct. 2702 (“Section 1983 provides an explicit remedy in damages which, with its limitations on municipal liability, Congress thought suitable to carry ... into effect the rights guaranteed by § 1981 as against state actors.” (internal quotation marks omitted; ellipsis in original; emphasis added)); id. at 734, 109 S.Ct. 2702 (“The historical evidence surrounding the revision of 1874 [(amending what became § 1983)] further indicates that Congress thought that the declaration of rights in § 1981 would be enforced against state actors through the remedial provisions of § 1983.” (emphasis added)); but see id. at 733, 109 S.Ct. 2702 (discussing Court’s “conclusion that the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units” (emphasis added)). Thomas is a state actor for purposes of this action. “[S]tate employment is generally sufficient to render the defendant a state actor”. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting Lugar). Accordingly, it appears § 1983 constitutes Carter’s exclusive remedy for the claimed § 1981 violation by Thomas. See, e.g., Ebrahimi v. City of Huntsville Bd. of Educ., 905 F.Supp. 993, 996 (N.D.Ala.1995) {“Jett is clear that a claim for damages against a state actor for violation of rights contained in § 1981 must be redressed pursuant to the explicit remedial provisions of § 1983. The Supreme Court did not make a distinction between state entities and individuals acting pursuant to col- or of state law. Therefore, when a state employee seeks to hold an individual fellow state employee liable in damages for violation" }, { "docid": "20733775", "title": "", "text": "between state entities and individuals acting pursuant to color of state law.’ ” Felton, 315 F.3d at 482 (quoting Ebrahimi v. City of Huntsville Bd. of Educ., 905 F.Supp. 993, 996 (N.D.Ala.1995)); Jett, 491 U.S. at 735, 109 S.Ct. 2702. In Felton and Oden, the Fifth Circuit recognized that Jett remains controlling law on this issue despite the changes to § 1981 effected by the Civil Rights Act of 1991. See Felton, 315 F.3d at 481; Oden, 246 F.3d at 463-64; see also McCall v. Dallas Indep. Sch. Dist., 169 F.Supp.2d 627, 639-40 (N.D.Tex,2001). Moreover, the Fifth Circuit observed that “requiring § 1981 claims against state actors to be pursued through § 1983 is not a mere pleading formality,” noting that “[although respondeat superior liability may be available through § 1981, it is not available through § 1983.” Felton, 315 F.3d at 482 (citations omitted) (emphasis in original). Thus, despite her argument to the contrary, Gallentine has no independent cause of action against Defendants under 42 U.S.C. § 1981. Instead, she must assert a cause of action under § 1983 to remedy alleged violations of § 1981. Gallentine’s independent § 1981 claims against Defendants are dismissed. D. § 1983 Claims Defendants also cite numerous grounds for dismissing Gallentine’s § 1983 claims against Quesada in his individual capacity and against the Housing Authority: (1) Title VII is Gallentine’s exclusive remedy for employment discrimination and retaliation; (2) the complaint fails to state a plausible § 1983 claim against the Housing Authority; (3) the complaint fails sufficiently to allege Quesada’s personal involvement in the alleged discrimination and retaliation; and (4) the complaint fails to overcome Quesada’s qualified immunity. 1. Viability of § 1983 Claims in the Employment Discrimination Context Defendants assert that Gallentine cannot state a § 1983 claim because Title VII is her exclusive remedy for the discrimination and retaliation she allegedly suffered. Specifically, they contend that because all of Gallentine’s claims are based on facts alleging discrimination or violations of the Equal Protection Clause, they must be pursued through Title VII. Although allowing a plaintiff to pursue a separate claim for" }, { "docid": "12608244", "title": "", "text": "were sufficiently independent of the individual defendants’ discriminatory actions to constitute superseding causes under the Restatement as a matter of law. The issue of causation of Springer’s injuries, as to which there exist genuine issues of material fact, is one for the jury. Summary judgment therefore should not have been entered in favor of the individual defendants, McGlincey and the Seamans. III. Springer asserted claims against the Postal Service for violations of 42 U.S.C. §§ 1981, 1985, 1986, and 2000d, and the fifth amendment of the United States Constitution. The district court granted the Postal Service’s motion for summary judgment because Springer did not allege that racial animus on the part of Vogel or the inspectors was a substantial or motivating factor in the decision to terminate his contract. After reviewing the amended complaint, we agree that there is an absence of allegation of racial animus on the part of Vogel or the inspectors. Springer’s theory of racial conspiracy focused only on the Seamans and McGlincey, and he has not asserted that the doctrine of respondeat superior applies to claims under §§ 1985 and 1986. We therefore affirm the district court’s dismissal of Counts II and III as against the defendant Postal Service. Springer’s claim under § 1981, however, is much more formidable. Section 1981 derives from the Civil Rights Act of 1866 and was intended “to eradicate all discrimination against blacks and to secure for them full freedom and equality in civil rights.” Mahone v. Waddle, 564 F.2d 1018 (3d Cir.1977) (emphasis in original; footnote omitted). Racial animus is a necessary element of a claim under this section. General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Although Springer does not allege racial animus on the part of the Postal Service itself, he asserts that the Postal Service may be held liable for McGlincey’s and Gretchen’s actions on the theory of respondeat superior. The respondeat superior doctrine has generally been held to be inapplicable to actions brought under § 1983. See, e.g., Monell v. Department of Social Services, 436 U.S." } ]

[ { "docid": "287356", "title": "", "text": "stated: We need not decide the thorny problem of whether, on the facts of this case, an injunction against the announced rally could be justified. The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties . and to give them an opportunity to participate. 393 U.S., at 180, 89 S.Ct. at 351. We turn, then, to a consideration of the equal protection clause of the “Constitutional Rights” section (§ 1302) of the Indian Civil Rights Act, codified at 25 U.S.C.A. §§ 1302,1303 (Supp,1969), enacted in 1968 as part of the Civil Rights Act. The question for our con-7 sideration is the scope and meaning of the Congressional use of well-known constitutional terms, such as, here “the equal protection of its laws,” within the setting of the culture and ethnical background of the Indian tribes. The Indian Civil Rights Act was the result of several years of hearings respecting the Indian problem. It gave to the federal courts, for the first time, a broad power of intervention in the tribal government and tribal courts. Prior thereto “The civil liberties of the Indians in relation to their tribal governments” had been uncertain, in view of the fact that tribal governments possessed “a measure of quasi-sovereignty [and were] not directly subject to the Constitutional Bill of Rights.” The Act before us sought solution to this problem. Senator Ervin, sponsor of the Act, described the bill in part as follows :— “It [the bill] gives the Senate an opportunity to show whether it believes in constitutional rights for the red man. The reservation" } ]

[ { "docid": "5613220", "title": "", "text": "constitutional rights which other Americans enjoy.” 114 Cong.Rec. 5836 (1968). See also Senator Ervin’s remarks concerning the Act in 1968 U.S.Code Cong. & Admin.News, pp. 1863-67. In White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973), the Eighth Circuit dealt with a similar and almost identical issue presently before us. In that case concerning the reapportionment of elective districts, the appellants contended that the equal protection clause of 25 U.S.C. § 1302(8) should “not apply to tribal elections because there was no intent to interfere with tribal elections or office holdings . . .” 478 F.2d at 1314. In the case presently before us, plaintiffs contend that the refusal of the Tribes to declare them eligible candidates for counsel membership deprived them of their right to travel and their right to run for office in violation of the equal protection clause of 25 U.S.C. § 1302(8). In One Feather, the Court concluded: We need not explore upon this record the degree to which federal courts may assert jurisdiction over tribal elections in all circumstances. Our problem has no such complexities as tribal membership or blood lines. The tribe itself, in the case before us, has established voting procedures precisely paralleling those commonly found in our culture, if not taken verbatim therefrom. * * * * * * Here, then, we have no problem of enforcing an alien culture, with strange procedures, on this tribe. What the plaintiffs seek is merely a fair compliance with the tribe’s own voting procedures in accordance with the principles of Baker v. Carr, supra, and subsequent cases. The language of the equal protection clause in- the Act is clear, its meaning (in this context) is clear, its employment subsequent to the decisions in Baker v. Carr, supra, has its own significance, and we can find nothing (and have been cited to nothing) in the legislative history of the Act, or, indeed, the tribal customs and culture manifesting the inapplicability of the principle. The plaintiffs are entitled to the relief they seek. 478 F.2d at 1314. In Daly v. United States, 483 F.2d 700" }, { "docid": "22001925", "title": "", "text": "the parties of the entry of this order. . Article VI (Res. 62-11) of the Constitution of the Crow Tribe (as amended) requires regular tribal council meetings to be called by the chairman and committee on the second Saturday of, respectively, January, April, July and October of each year. Notices of all council meetings are required to be given at least seven (7) days prior to each meeting date. . “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: “(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. . . . ” . “No Indian tribe in exercising powers of self-government shall— “(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law; . . . .” . Article V: “The Crow Tribe, through its tribal council, reserves unto itself the right to remove for cause any officer of the council for misconduct or negligence or non-diligence in connection with the protection of the rights of the Crow Tribe in its relations with the Bureau of Indian Affairs or the local employees.” . Res. No. 62-11: “This Constitution and Bylaws shall be amended by a majority vote at an election called for that purpose by the Tribal Council, provided no amendment shall become effective until it shall have been approved by the Commissioner of Indian Affairs or his authorized representative.” . The complaint mistakenly refers to Paragraph XII vice Paragraph XI of the impeachment resolution. There was no Paragraph XII contained in the impeachment resolution. . Indeed, the very purpose of the Indian Civil Rights Act was to give Indians the same rights other Americans enjoy. See Senator Ervin’s remarks concerning the Act in 1968 U.S.Code Cong. & Admin.News, pp. 1863-67. . The text of 28 U.S.C. § 1343(4) is set forth in n.2, supra. . See, also, Howlett v. Salish and Kootenai Tribes," }, { "docid": "5613223", "title": "", "text": "of traditional equal protection dpctrines would significantly impair a tribal practice or alter a custom firmly embedded in Indian culture, and where the individual injury alleged by the tribal member is, by comparison, not a grievous one, then the equal protection clause at 25 U.S.C. § 1302(8) may be implemented somewhat differently than its constitutional counterpart. Where, however, the Tribes’ election and voting procedures are parallel to those commonly employed in Anglo-Saxon society, we then “have no problem of forcing an alien culture, with strange procedures, on [these tribes.]” White Eagle v. One Feather, 478 F.2d at 1314. The legislative history clearly indicates that the equal protection clause of the fourteenth amendment should be embraced by the Indian Civil Rights Act. In order to determine whether Anglo-Saxon concepts of equal protection would impose elements of an alien culture upon the Indian Tribes in this particular case, we first consider the pertinent provisions of the Tribes’ constitution which concern election and voting procedures: Article III — The Tribal Council * * ‡ * * Section 6. No person shall be a candidate for membership in the Tribal Council unless he shall be a member of the Confederated Tribes of the Flathead Reservation and shall have resided in the district of his candidacy for a period of one year next preceding the election. Section 7. The Tribal Council of the Confederated Tribes of the Flathead Reservation shall be the sole judge of the qualifications of its members. Article IV — Nominations and Elections * * * * * * Section 5. Any member of the Confederated Tribes of the Flathead Reservation who is 21 years of age or over and who has maintained a legal residence for at least one year on the Flathead Reservation shall be entitled to vote. Article V — Vacancies and Removal from Office Section 1. If a councilman or official shall die, resign, permanently leave the reservation, or be removed from office, the Council shall declare the position vacant and appoint a .successor to fill the unexpired term, provided that the person chosen to fill such vacancy" }, { "docid": "3597646", "title": "", "text": "that the District Court: (1) was without jurisdiction over the subject matter; (2) erred by allowing the Tribe and its officials to be sued despite their sovereign immunity; (3) erred by striking out the blood quantum requirement for membership on the Tribal Council ; (4) erred by extinguishing the terms of the three councilmen who were elected at-large pursuant to its order of April 14, 1972; (5) ordered implementation of a plan which fails to comply with the one-man, one-vote doctrine; and (6) erred by summarily denying the appellants’ petition for rehearing. We deal with these contentions in the order raised. SUBJECT MATTER JURISDICTION The appellants contend that the District Court was without subject matter jurisdiction for three reasons. First, the equal protection clause in the Indian Civil Rights Act, 25 U.S.C. § 1302(8), does not extend the one-man, one-vote doctrine to tribal council elections. That position was rejected in Melvin White Eagle, etc., et al. v. Philomene One Feather et al., 478 F.2d 1311 (8th Cir. 1973). In One Feather, we held that where a tribe has adopted election procedures analogous to those found in Anglo-American culture, the equal protection clause of the Indian Civil Rights Act required that the election procedures comply with the one-man, one-vote principle established by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its progeny. We follow One Feather here and hold the District Court was correct in assuming jurisdiction: “ * * * [0]nce the applicability of Section 1302(8) is established as comprehending the one-man, one-vote principle * * * the cause of action * * * is clearly within the jurisdiction of the District Court * * * under 28 U.S.C. § 1343(4) * * (Citation omitted.) Melvin White Eagle, etc., et al. v. Philo-mene One Feather, et al., supra, 478 F. 2d at 1314. Second, the District Court lacked jurisdiction because the Tribe did not consent to the Indian Reorganization Act of 1934, 25 U.S.C. § 461, et seq. There is no merit to this argument. This action was brought únder the Indian Civil Rights" }, { "docid": "5613239", "title": "", "text": "any legislative classification that significantly burdens the' right to run for office, “must be subjected to strict equal protection review.” Mancuso v. Taft, 476 F.2d 187, 196 (1st Cir. 1973). We agree with the rationale of the above cases, applying the compelling state interest test. Here, we assume without deciding that the plaintiffs’ rights of travel and running for office are protected by the provisions of 25 U.S.C. § 1302(8). Because the Tribes’ election and voting procedures are analogous to Anglo-Saxon culture, it is clear that in this case the equal protection clause of the fourteenth amendment should be embraced by the Indian Civil Rights Act. See White Eagle v. One Feather, 478 F.2d 1311, 1314 (8th Cir. 1973), and other relevant cases cited in discussion supra regarding jurisdiction. It is settled law that absent a compelling state interest, governmental action may not burden the exercise of a fundamental constitutional right. Dunn v. Blum-stein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Accordingly, the district court applied the proper test in this case, that of “compelling tribal interest.” In applying the compelling interest test, the district judge upheld the Tribes’ one year residency requirement. The defendants contend that the district court’s holding was correct and supported by two compelling interests. First, the political and managerial responsibilities placed on the members of the Tribal Council can be discharged responsibly only with the benefit of the full knowledge and information that can be acquired only by almost daily living on the reservation. Second, the cultural identity of the Salish and Kootenai Tribes is primarily a product of continued physical presence on the reservation, and the elected leaders of the Tribe must be current and long-term actual residents (i. e., at least one year) in order to insure that they are sufficiently familiar with and part of that culture in order to be entrusted to carry it forward. In holding that the State of" }, { "docid": "17698269", "title": "", "text": "same meaning. “During oral argument, counsel for appellee urged that due process within the meaning of 25 U.S.C. § 1302 did not have the same meaning as traditional notions of due process under the Fourteenth Amendment. There may be some provisions of the Indian Civil Rights Act that under some circumstances may have a modified meaning because of the special historical nature of particular tribal customs or organization. However, this is not one of them. The Hearings on H.R. 15419 and Related Bills Before the Subcomm. on Indian Affairs of the Comm. on Interior and Insular Affairs, 90th Cong., 2d Sess.: ‘Rights of Members of Indian Tribes,’ at 17 (1968), in discussing title I (now 25 U.S.C. § 1302) dealing with the denial of rights by tribal governments state that: ‘ . . . any Indian tribe in exercising its powers of local self-government shall, with certain exceptions, be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the Constitution.’ It thus appears when the bill which was later enacted as 25 U.S.C. § 1302 was before the House Subcommittee, it was the clear intention of that body that the due process restrictions of the bill should be interpreted in the same way when applied to a tribe as when applied to the United States or to the states. The legislative history states: ‘By a unanimous vote, the subcommittee sought to extend constitutional rights to the American Indians, . ‘ . . . the substitute bill would grant to the American Indians enumerated constitutional rights and protection from arbitrary action in their relationship with tribal governments, . ’ 2 U.S.Code Cong. & Admin. News at p. 1864 (1968).” Johnson v. Lower Elwha Tribal Community, etc., 484 F.2d 200, 202-03 n. 4 (9th Cir. 1973). Consequently, when the federal constitutional claims of Red Fox were examined by the Oregon appellate court in determining whether to allow Oregon’s courts to be used to implement the tribal divorce decree, the due process claims under the Indian Civil Rights Act were also adjudicated." }, { "docid": "3597647", "title": "", "text": "a tribe has adopted election procedures analogous to those found in Anglo-American culture, the equal protection clause of the Indian Civil Rights Act required that the election procedures comply with the one-man, one-vote principle established by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its progeny. We follow One Feather here and hold the District Court was correct in assuming jurisdiction: “ * * * [0]nce the applicability of Section 1302(8) is established as comprehending the one-man, one-vote principle * * * the cause of action * * * is clearly within the jurisdiction of the District Court * * * under 28 U.S.C. § 1343(4) * * (Citation omitted.) Melvin White Eagle, etc., et al. v. Philo-mene One Feather, et al., supra, 478 F. 2d at 1314. Second, the District Court lacked jurisdiction because the Tribe did not consent to the Indian Reorganization Act of 1934, 25 U.S.C. § 461, et seq. There is no merit to this argument. This action was brought únder the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303, and the provisions of that Act apply to all Indian tribes subject to the jurisdiction of the United States which possess powers of self-government. See, 25 U.S.C. §§ 1301-1302. The Crow Creek Sioux Tribe possesses these powers and its consent to the 1934 Act is unnecessary. Third, the District Court was without subject matter jurisdiction because the plaintiffs failed to show that they had exhausted their tribal remedies. The plaintiffs, in short, reply that there were no tribal remedies available for them to exhaust. We are satisfied that the plaintiffs’ position is accurate and, accordingly, the District Court properly assumed jurisdiction. See, e. g., McCurdy v. Steele, 353 F.Supp. 629, 636 (D.Utah 1973). SOVEREIGN IMMUNITY The appellants contend that the Crow Creek Sioux Tribe and, hence, the Council members, have sovereign immunity and may not be sued absent Congressional authorization. We disagree. While the Indian Civil Rights Act does not abrogate the sovereign immunity of Indian tribes by specific language, we read the Act to do so by implication. We" }, { "docid": "5613224", "title": "", "text": "No person shall be a candidate for membership in the Tribal Council unless he shall be a member of the Confederated Tribes of the Flathead Reservation and shall have resided in the district of his candidacy for a period of one year next preceding the election. Section 7. The Tribal Council of the Confederated Tribes of the Flathead Reservation shall be the sole judge of the qualifications of its members. Article IV — Nominations and Elections * * * * * * Section 5. Any member of the Confederated Tribes of the Flathead Reservation who is 21 years of age or over and who has maintained a legal residence for at least one year on the Flathead Reservation shall be entitled to vote. Article V — Vacancies and Removal from Office Section 1. If a councilman or official shall die, resign, permanently leave the reservation, or be removed from office, the Council shall declare the position vacant and appoint a .successor to fill the unexpired term, provided that the person chosen to fill such vacancy shall be from the district in which such vacancy occurs. Similar to the Eighth Circuit’s holding in One Feather, it is unnecessary here for us to declare by a general rule the extent to which federal courts may entertain jurisdiction over tribal election and voting procedures in all circumstances. It is sufficient for us to observe that in this particular case the tribes have established procedures “paralleling those commonly found in our culture.” 478 F.2d at 1314. Thus, this is the type of case in which the Anglo-Saxon notion of equal protection is embraced by section 1302(8) of the Indian Civil Rights Act. In order for the district court to have properly granted jurisdiction in this matter, plaintiffs were required to show that they had exhausted their tribal remedies before bringing suit in an action predicated upon the Indian Civil Rights Act Bill of Rights, 25 U.S.C. § 1302. As stated by the Eighth Circuit in O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir. 1973): [I]t is clear to us that Congress" }, { "docid": "5613222", "title": "", "text": "(8th Cir. 1973), the Eighth Circuit confronted the identical issue as was before it in One Feather. Viewing that decision with approval, the Court held: In One Feather, we held that where a tribe has adopted election procedures analogous to those found in Anglo-American culture, the equal protection clause of the Indian Civil Rights Act required that the election procedures comply with the one-man, one-vote principle established by Baker v. Carr . . We follow One Feather here and hold the District Court was correct in assuming jurisdiction. 483 F.2d at 704-05. Accord, Brown v. United States, 486 F.2d 658 (8th Cir. 1973); Luxon v. Rosebud Sioux Tribe of South Dakota, 455 F.2d 698 (8th Cir. 1972); Williams v. Sisseton-Wahpeton Sioux Tribal Council, 387 F.Supp. 1194 (D.S.D.1975); Yellow Bird v. Oglala Sioux Tribe of South Dakota, 380 F.Supp. 438 (D.S.D.1974). We believe that the above approach, first adopted by the Eighth Circuit, promotes both the maintenance of cultural tribal identity and the preservation of fundamental constitutional rights for the individual Indian. Where the strict application of traditional equal protection dpctrines would significantly impair a tribal practice or alter a custom firmly embedded in Indian culture, and where the individual injury alleged by the tribal member is, by comparison, not a grievous one, then the equal protection clause at 25 U.S.C. § 1302(8) may be implemented somewhat differently than its constitutional counterpart. Where, however, the Tribes’ election and voting procedures are parallel to those commonly employed in Anglo-Saxon society, we then “have no problem of forcing an alien culture, with strange procedures, on [these tribes.]” White Eagle v. One Feather, 478 F.2d at 1314. The legislative history clearly indicates that the equal protection clause of the fourteenth amendment should be embraced by the Indian Civil Rights Act. In order to determine whether Anglo-Saxon concepts of equal protection would impose elements of an alien culture upon the Indian Tribes in this particular case, we first consider the pertinent provisions of the Tribes’ constitution which concern election and voting procedures: Article III — The Tribal Council * * ‡ * * Section 6." }, { "docid": "22001926", "title": "", "text": "itself the right to remove for cause any officer of the council for misconduct or negligence or non-diligence in connection with the protection of the rights of the Crow Tribe in its relations with the Bureau of Indian Affairs or the local employees.” . Res. No. 62-11: “This Constitution and Bylaws shall be amended by a majority vote at an election called for that purpose by the Tribal Council, provided no amendment shall become effective until it shall have been approved by the Commissioner of Indian Affairs or his authorized representative.” . The complaint mistakenly refers to Paragraph XII vice Paragraph XI of the impeachment resolution. There was no Paragraph XII contained in the impeachment resolution. . Indeed, the very purpose of the Indian Civil Rights Act was to give Indians the same rights other Americans enjoy. See Senator Ervin’s remarks concerning the Act in 1968 U.S.Code Cong. & Admin.News, pp. 1863-67. . The text of 28 U.S.C. § 1343(4) is set forth in n.2, supra. . See, also, Howlett v. Salish and Kootenai Tribes, 529 F.2d 233 (9th Cir. 1976); Crowe v. Eastern Bank, 506 F.2d 1231 (4th Cir. 1974); Luxon v. Rosebud Tribe, 455 F.2d 698 (8th Cir. 1972). But see, Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir. 1971). . Indian Tribes are quasi-sovereign and enjoy immunity from suit coextensive with that of the United States except where there has been a Congressional consent to suit. Hamilton v. Nakai, 453 F.2d 152, 158 (9th Cir. 1971), cert. denied 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972). . 25 U.S.C. §§ 1301, 1302, 1303. . See, Rule 7(a), F.R.Civ.P.; 2A Moore’s Federal Practice, ]] 7.02, p. 1531; 2A Moore’s Federal Practice, ¶ 12.15, p. 2342. . Pursuant to a request of plaintiffs counsel, a conference in this case was held in Chambers wherein counsel for all the parties were present. The conference was prior to the filing of the motion to strike and the parties agreed that the case could be deemed submitted with respect to the tribal defendants. Counsel for the plaintiff asked" }, { "docid": "5613218", "title": "", "text": "in a proper case, whether an Indian tribe has denied to one of its members any of the rights given to the members under the Indian Bill of Rights.” 455 F.2d at 700. Similarly, in Solomon v. LaRose, 335 F.Supp. 715 (D.Neb.1971), the district judge concluded that “it was the intent of Congress in enacting the Indian Civil Rights Act to create sui generis a body of substantive rights, patterned in part on the federal Bill of Rights, to extricate the individual Indian from the legal no man’s land . 335 F.Supp. at 718. See Loncassion v. Leekity, 334 F.Supp. 370 (D.N.M.1971); Spotted Eagle v. Blackfeet Tribe, 301 F.Supp. 85 (D.Mont.1969); Dodge v. Nakai, 298 F.Supp. 17 (D.Ariz.1968); Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv.L.Rev. 1343 (1969). Some courts, however, have expressed doubt whether the federal courts may exercise jurisdiction over tribal elections under 25 U.S.C. § 1302(8). See Groundhog v. Keeler, 442 F.2d 674, 682 (10th Cir. 1971). It is indeed true that 25 U.S.C. § 1302(8) “is not coextensive with the fourteenth amendment . . . Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079, 1082 (8th Cir. 1975). We noted this principle in our decision in Johnson, observing that “[tjhere may be some provisions of the Indian Civil Rights Act that under some circumstances may have a modified meaning because of the special historical nature of particular tribal customs or organization.” 484 F.2d at 202 n. 4. At the same time, in that note 4, we referred to the pertinent legislative history regarding 25 U.S.C. § 1302, which was cited as follows: “. . . any Indian tribe in exercising its powers of local self-government shall, with certain exceptions, be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the Constitution.” Id. The Act’s sponsor, Senator Ervin, described the purpose of the bill in the following terms: “The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians" }, { "docid": "1821095", "title": "", "text": "2454, (No. 74-1656, the Mary Settler case) the contention as to professional counsel has been withdrawn by counsel for Petitioner and is no longer at issue in this case, because the Yakima Indian Nation now permits tribal members to be represented by professional counsel in tribal court proceedings.” The file in 74-2364 does not contain a similar stipulation, and in that case Alvin continues to urge this alleged denial of his constitutional rights. The 1967 Tribal proceedings against Alvin Settler involved misdemeanors. Section 8, Chapter 1 of the Law and Order Code of the Yakima Indian Nation prohibited the appearance of “professional attorneys” in Tribal Court. It did, however, provide for representation by members of the Tribe. Alvin Settler was offered and he rejected this representation. Counsel have not cited nor have we found any case prior to the enactment of the Indian Civil Rights Act of 1968 which guarantees the Sixth Amendment right of counsel to Indians appearing in tribal courts. As noted in the legislative history of the 1968 Act, “The Federal courts generally have refused to impose constitutional standards on Indian tribal governments, on the theory that such standards apply only to State or Federal governmental action, and that Indian tribes are not States within the meaning of the 14th Amendment”. Senate Report No. 721, 2 U.S.Code Cong. & Admin. News, pp. 1837, 1864 (90th Cong. 2nd Sess. 1968). Senator Ervin, sponsor of the 1968 Act, described the Act in part as follows: “ . . . The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.” 14 Cong.Rec. 5836 (1968). There are many cases supporting .the conclusion that prior to the 1968 Act constitutional rights were not applicable to Indian tribes and Indians living on reservations. The leading case is Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896) wherein the Supreme Court held that the Fifth Amendment was not applicable to the Cherokee Nation. The Court stated: “ . . . the existence of the right in" }, { "docid": "8624132", "title": "", "text": "traditional notions of due process under the Fourteenth Amendment. There may be some provisions of the Indian Civil Rights Act that under some circumstances may have a modified meaning because of the special historical nature of particular tribal customs or organization. However, this is not one of them. The Hearings on H.R. 15419 and Related Bills Before the Subcomm. on Indian Affairs of the Comm, on Interior and Insular Affairs, 90th Cong., 2d Sess.: “Rights of Members of Indian Tribes,” at 17 (1968), in discussing title I (now 25 U.S.C. § 1302) dealing with the denial of rights by tribal governments state that: “ . any Indian tribe in exercising its powers of local self-government shall, with certain exceptions, be subject to the same limitations and restraints as those which are imposed on the Govern ment of the United States by the Constitution.” It thus appears when the bill which was later enacted as 25 U.S.C. § 1302 was before the House Subcommittee, it was the clear intention of that body that the due process restrictions of the bill should be interpreted in the same way when applied to a tribe as when applied to the United States or to the states. The legislative history states: “By a unanimous vote, the subcommittee sought to extend constitutional rights to the American Indians, . . . “ . . . the substitute bill would grant to the American Indians enumerated constitutional rights and protection from arbitrary action in their relationship with tribal governments, . . . ” 2 U.S. Code Cong. & Admin.News at p. 1864 (1968). Additionally, the constitution adopted by the Lower Elwha Community provides in part: “No member shall be denied any of the rights or guarantees enjoyed by citizens under the constitution of the United States, including . . . due process of law.” Article VII, Bill of Rights. . The Supreme Court in situations similar to this has implied an appropriate remedy (usually a private cause of action) to carry out Congressional purposes. See, e. g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414 n." }, { "docid": "1821096", "title": "", "text": "generally have refused to impose constitutional standards on Indian tribal governments, on the theory that such standards apply only to State or Federal governmental action, and that Indian tribes are not States within the meaning of the 14th Amendment”. Senate Report No. 721, 2 U.S.Code Cong. & Admin. News, pp. 1837, 1864 (90th Cong. 2nd Sess. 1968). Senator Ervin, sponsor of the 1968 Act, described the Act in part as follows: “ . . . The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.” 14 Cong.Rec. 5836 (1968). There are many cases supporting .the conclusion that prior to the 1968 Act constitutional rights were not applicable to Indian tribes and Indians living on reservations. The leading case is Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896) wherein the Supreme Court held that the Fifth Amendment was not applicable to the Cherokee Nation. The Court stated: “ . . . the existence of the right in congress to regulate the manner in which the local powers of the Cherokee Nation shall be exercised does not render such local powers Federal powers arising from and created by the constitution of the United States. It follows that as the powers of local self-government enjoyed by the Cherokee Nation existed prior to the constitution, they are not operated upon by the fifth amendment, which, as we have said, had for its sole object to control the powers conferred by the constitution on the national government.” Id. at 384, 16 S.Ct. at 989. This rationale was followed in subsequent cases involving the application of the Bill of Rights and the Fourteenth Amendment to the Indian Tribes. Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553 (8 Cir. 1958), cert. den., 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959); Martinez v. Southern Ute Tribe of Southern Ute Reservation, 249 F.2d 915 (10 Cir. 1957), cert. den., 356 U.S. 960, 78 S.Ct.. 998, 2 L.Ed.2d 1067 (1958); Native American Church of North" }, { "docid": "5613219", "title": "", "text": "1302(8) “is not coextensive with the fourteenth amendment . . . Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079, 1082 (8th Cir. 1975). We noted this principle in our decision in Johnson, observing that “[tjhere may be some provisions of the Indian Civil Rights Act that under some circumstances may have a modified meaning because of the special historical nature of particular tribal customs or organization.” 484 F.2d at 202 n. 4. At the same time, in that note 4, we referred to the pertinent legislative history regarding 25 U.S.C. § 1302, which was cited as follows: “. . . any Indian tribe in exercising its powers of local self-government shall, with certain exceptions, be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the Constitution.” Id. The Act’s sponsor, Senator Ervin, described the purpose of the bill in the following terms: “The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.” 114 Cong.Rec. 5836 (1968). See also Senator Ervin’s remarks concerning the Act in 1968 U.S.Code Cong. & Admin.News, pp. 1863-67. In White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973), the Eighth Circuit dealt with a similar and almost identical issue presently before us. In that case concerning the reapportionment of elective districts, the appellants contended that the equal protection clause of 25 U.S.C. § 1302(8) should “not apply to tribal elections because there was no intent to interfere with tribal elections or office holdings . . .” 478 F.2d at 1314. In the case presently before us, plaintiffs contend that the refusal of the Tribes to declare them eligible candidates for counsel membership deprived them of their right to travel and their right to run for office in violation of the equal protection clause of 25 U.S.C. § 1302(8). In One Feather, the Court concluded: We need not explore upon this record the degree to which federal courts may assert jurisdiction over tribal elections in all" }, { "docid": "5562266", "title": "", "text": "the exterior boundaries of the Cheyenne River Sioux Indian Reservation tf Furthermore, the Code, in Title 4, Chap. 1, Subehapter 3, § 11, provides that “[T]he Superior Court shall have power to issue any writs or orders necessary and proper to its jurisdiction.” This review of the Code clearly indicates that there were two types of tribal remedies which were open to the plaintiffs. It is, therefore, incumbent on this Court to determine whether, as a general rule, exhaustion should be required. This action, essentially predicated on allegations of due process violations, was primarily based upon 25 U.S.C. § 1302. 25 U.S.C. § 1302 provides in pertinent part: “No Indian tribe in exercising powers of self-government shall— (5) take any private property for a public use without just compensation; (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;” Enacted in 1968, this significant legislation was designed to remedy the anomalous situation in which reservation Indians found themselves. As Senator Er-vin, the moving force behind the legislation, said: “ ‘The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.’ ” White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973). It is the plaintiffs’ position in this lawsuit that Congress did not intend to require exhaustion of tribal remedies, because the purpose of the legislation was to give Indians the “constitutional rights which other Americans enjoy.” Since other Americans, according to the plaintiffs, need not exhaust state remedies when bringing conventional civil rights suits, see e. g., Stradley v. Andersen, 456 F.2d 1063 (8th Cir. 1972), the plaintiffs argue that they should not be required to exhaust tribal remedies. However, it is clear to us that Congress wished to protect and preserve individual rights of the Indian peoples, with the realization that this goal is best achieved by maintaining the unique Indian culture and necessarily strengthening tribal governments. From this perspective an exhaustion requirement is consistent with the" }, { "docid": "860645", "title": "", "text": "Tribe under the provisions of Article II, section 1, of the Oglala Sioux Tribal Constitution, or under the provisions of the Oglala Sioux Tribal Council resolution 64-43. It does not appear from the complaint, however, that either of the plaintiffs have petitioned the Tribal Council for a determination of their tribal membership status. The plaintiffs further contend that their classification as non-enrolled members in the Oglala Sioux Tribe, which status does not allow them to run for tribal office, is arbitrary and capricious and has no reasonable relationship to any legitimate purpose of the Oglala Sioux Tribe. The plaintiffs therefore pray that this Court assume jurisdiction of this case under 28 U.S.C. § 1343(4), issue a declaratory judgment finding that Article II of the Oglala Sioux Tribal Constitution and Oglala Sioux Election Ordinance 85G are on their face in violation of plaintiffs’ civil rights under 25 U.S.C. § 1302, and invalidate the primary election that was held for the Pine Ridge and Wakpamni communities on January 22, 1974 for the position of councilman. Before any determination can be made of the plaintiffs’ claim, this Court must decide whether or not it has jurisdiction. The plaintiffs in their complaint contend that the District Court has jurisdiction to determine their claims under 28 U.S. C. § 1343(4) and 28 U.S.C. § 1331(a). However, before the plaintiffs may take advantage of either jurisdictional statute, it must be determined whether the equal protection clause in the Indian Civil Rights Act, 25 U.S.C. § 1302(8) extends to the type of injury alleged by the plaintiffs. This determination is not inconsistent with the Eighth Circuit Court of Appeals opinion in Luxon v. Rosebud Sioux Tribe of S. D., 455 F.2d 698 (1972), since the Court there stated: “In our opinion, 28 U.S.C. § 1343(4) gives the district court jurisdiction to determine in a proper case, whether an Indian tribe has denied one of its members any of the rights given to the members under the Indian Bill of Rights. See, Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Reservation, 301 F.Supp. 85, 89 (D.Mont. 1969); Dodge" }, { "docid": "5613213", "title": "", "text": "OPINION Before BARNES, SNEED and KENNEDY, Circuit Judges. BARNES, Senior Circuit Judge: This appeal involves two plaintiffs, Kevin Howlett and Bernard Clairmont, members of the Salish and Kootenai Tribes of the Flathead Reservation, Montana [herein Tribes] who contend that the refusal of the Tribes to declare them eligible candidates for tribal council membership deprived them of their right to travel and their right to run for office in violation of Section 1302(8) of the Indian Civil Rights Act (25 U.S.C. § 1302(8) (1968)). Plaintiffs’ ineligibility was based upon their failure to satisfy the residency requirements for candidates seeking office under the Tribes’ Constitution. Howlett and Clairmont ask this Court to grant them the following relief: (1) that the tribal election held December 15, 1973, for council membership be declared invalid, (2) that the Court order and direct the Tribal Council to conduct a special election according to guidelines established by the Court permitting plaintiffs to be candidates in that election, (3) that the Court declare invalid as violative of the Constitutional rights of Indians Article III, Sections 6 and 7 of the Constitution of the Confederated Salish and Kootenai Tribes, and (4) that the plaintiffs be awarded whatever other relief the Court deems just and reasonable. In an unpublished Opinion and Order of January 7, 1975 (C.T. 202), the district judge denied plaintiffs all relief on the merits. Defendants, however, urged that the trial judge lacked jurisdiction and thus should not have reached the merits. On appeal, defendants continue to maintain that the district judge lacked jurisdiction due to several reasons, namely that Indian Tribes are quasi-sovereign entities which may not be sued without express Congressional consent, that no Federal Statute exists which grants jurisdiction in this particular area involving tribal elections, and that the plaintiffs did not exhaust their tribal remedies. I. Jurisdiction In the district court, jurisdiction was allegedly based on 25 U.S.C. § 1302(8) and 28 U.S.C. § 1343(4). If the district judge properly found jurisdiction, we then consider the issues raised by plaintiffs on this appeal. (28 U.S.C. § 1291). In finding jurisdiction, the district judge" }, { "docid": "17698268", "title": "", "text": "Red Fox, 542 P.2d 918, 922 n. 8 (Or.App.1975). Nonetheless, we find that in disposing of the federal constitutional claims, the Oregon court also reached the merits of Red Fox’s claims under the Indian Civil Rights Act. To hold otherwise would exalt form over substance. Because the Bill of Rights protections were not available to protect persons falling under the jurisdiction of the tribes from tribal government actions, Congress enacted the Indian Civil Rights Act in 1968. The Act substantially tracks the precise language of the Bill of Rights portion of the Constitution, thereby acting as a conduit to transmit federal constitutional protections to those individuals subject to tribal jurisdiction. Although due regard for the historical, governmental, and cultural values of the Indian tribes has resulted in some variance in the protections accorded under the Bill of Rights and the Indian Civil Rights Act, see Tom v. Sutton, 533 F.2d 1101, 1104-05 n. 5 (9th Cir. 1976) and cases cited therein, our court has written that the due process clauses of both documents have the same meaning. “During oral argument, counsel for appellee urged that due process within the meaning of 25 U.S.C. § 1302 did not have the same meaning as traditional notions of due process under the Fourteenth Amendment. There may be some provisions of the Indian Civil Rights Act that under some circumstances may have a modified meaning because of the special historical nature of particular tribal customs or organization. However, this is not one of them. The Hearings on H.R. 15419 and Related Bills Before the Subcomm. on Indian Affairs of the Comm. on Interior and Insular Affairs, 90th Cong., 2d Sess.: ‘Rights of Members of Indian Tribes,’ at 17 (1968), in discussing title I (now 25 U.S.C. § 1302) dealing with the denial of rights by tribal governments state that: ‘ . . . any Indian tribe in exercising its powers of local self-government shall, with certain exceptions, be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the Constitution.’ It thus appears when" }, { "docid": "860646", "title": "", "text": "determination can be made of the plaintiffs’ claim, this Court must decide whether or not it has jurisdiction. The plaintiffs in their complaint contend that the District Court has jurisdiction to determine their claims under 28 U.S. C. § 1343(4) and 28 U.S.C. § 1331(a). However, before the plaintiffs may take advantage of either jurisdictional statute, it must be determined whether the equal protection clause in the Indian Civil Rights Act, 25 U.S.C. § 1302(8) extends to the type of injury alleged by the plaintiffs. This determination is not inconsistent with the Eighth Circuit Court of Appeals opinion in Luxon v. Rosebud Sioux Tribe of S. D., 455 F.2d 698 (1972), since the Court there stated: “In our opinion, 28 U.S.C. § 1343(4) gives the district court jurisdiction to determine in a proper case, whether an Indian tribe has denied one of its members any of the rights given to the members under the Indian Bill of Rights. See, Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Reservation, 301 F.Supp. 85, 89 (D.Mont. 1969); Dodge v. Nakai, 298 F.Supp. 17, 25 (D.Ariz.1968).” (Emphasis added.) The Eighth Circuit Court of Appeals, subsequent to its decision in Luxon v. Rosebud Sioux Tribe of S. D., has not defined the term “proper case\" in regard to when a District Court should assume jurisdiction under the Indian Civil Rights Act. The Eighth Circuit, in various decisions, however, has determined that certain practices of an Indian tribe fall within the scope of the equal protection clause of the Indian Civil Rights Act. In the case of White Eagle v. One Feather, 478 F.2d 1311 (1973), the Court of Appeals held that the one-man, one-vote doctrine of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, applied to tribal elections. In determining whether this doctrine was within the scope and meaning of the equal protection clause of the Indian Civil Rights Act, 25 U.S.C. § 1302(8), the Court gave due regard to the cultural and ethnical background of the Indian tribes. 478 F.2d at 1312. Such a determination is necessary in determining the" } ]

[ { "docid": "22709528", "title": "", "text": "question are removed from classification thereunder. First of all, the merchandise before us was not “prepared for use.” On the contrary, these plates of lambskins were unusable in their imported condition and required considerable processing or treatment, and manipulation, to become available for ultimate use by manufacturers. Furthermore, the plates were made up of undressed lambskins, a condition which excludes classification under said paragraph 1519 (b), as it specifically provides that the merchandise classifiable thereunder shall be “further advanced than dressing.” The Kung Chen Fur Corporation cases, supra, held plates of undressed kidskins to be free of duty under paragraph 1681, supra. Those cases presented facts and circumstances that so closely parallel the conditions concerning the processing in China, the treatment in this country, and the ultimate use by American manufacturers of the lambskin plates in question that the classification invoked in the said cases should also apply in the present case. Accordingly, we hold the plates of undressed lambskins in question to be free of duty under said paragraph 1681, as claimed. The reasoning followed and the conclusion reached make it unnecessary to discuss other points of argument presented in the briefs of counsel for the respective parties. The protest is sustained and judgment will be rendered accordingly. DISSENTING OPINION Mollison, Judge: I am constrained to dissent from the decision and judgment of my colleagues in this case. The legal situation herein is distinguished from that which obtained in the case of United States v. Kung Chen Fur Corporation, 38 C. C. P. A. (Customs) 107, C. A. D. 447, cited and relied upon by the majority, by reason of the particular language of the tariff provision under which the lambskin plates at bar were assessed with duty, which provision is different from that under which the kidskin plates in the Kung Chen case were assessed. In short, a different issue is here presented. The kidskin plates in the Kung Chen case were classified by the collector of customs under paragraph 1519 (a) of the Tariff Act of 1930, which reads: Dressed furs and dressed fur skins (except silver" } ]

[ { "docid": "22709507", "title": "", "text": "Oliver, Chief Judge: This case involves the classification of lambskin plates exported from China and entered at the port of New York. Duty was assessed on the merchandise at the rate of 35 per centum ad valorem under the provisions of paragraph 1519 (b) of the Tariff Act of 1930, which reads as follows: Manufactures of fur (except silver or black fox), further advanced than dressing, prepared for use as material (whether or not joined or sewed together) including plates, mats, linings, strips, and crosses (except plates, mats, linings, strips, and crosses of dog, goat, and kid skins), if not dyed, 35 per centum ad valorem; if dyed, 40 per centum ad valorem. Plaintiff’s principal claim is that the merchandise is free of duty under paragraph 1681 of the Tariff Act of 1930, which provides for “Furs and fur skins, not specially provided for, undressed.” An alternative claim is made for classification as nonenumerated manufactured articles under paragraph 1558 of the Tariff Act of 1930, carrying a dutiable rate of 20 per centum ad valorem. Plaintiff’s claim for free entry is based on the premise that the lambskin plates in question are merely undressed furs or fur skins, and that under clear and unambiguous language of paragraph 1519 of the Tariff Act of 1930, as judicially construed in a line of cases, hereinafter discussed, the present merchandise is excluded from the provisions of paragraph 1519 (b), as assessed, and is properly classifiable under said paragraph 1681. To support its contentions, plaintiff introduced the testimony of 15 witnesses, who may be divided into 3 general categories, i.e., importers of and dealers in furs and fur skins, fur dressers and dyers, and fur garment manufacturers. Each of the witnesses showed many years of experience in the particular branch of the fur business in which he has been engaged, and all of them were amply qualified to supply the factual foundation upon which plaintiff has presented its case. Before discussing plaintiff’s testimony, mention should be made of the pretrial conferences that resulted in certain agreements which became the subject of stipulated facts entered" }, { "docid": "22725531", "title": "", "text": "of 25 per centum ad valorem, an additional claim for duty at the rate of 20 per centum ad valorem under the provision in paragraph 1558 for nonenumerated manufactured articles is included in each protest. This claim, while not specifically pressed, was not abandoned. The claim does not appear in the protests covering the merchandise which was assessed with duty at the rate of 12}( per centum ad valorem under paragraph 1519 (a), as modified. The record made on the trial of the issues herein presents afresh the issues presented in the case of Kung Chen Fur Corp. v. United States, decided by a majority of the first division of this court — the writer dissenting — on January 13, 1950, in favor of the plaintiff’s claim, the said decision being reported in 24 Cust. Ct. 24, C. D. 1203. Upon appeal by the defendant, the decision was affirmed by our appellate court under the style of United States v. Kung Chen Fur Corporation, reported in 38 C. C. P. A. (Customs) 107, C. A. D. 447. It was stipulated and agreed between counsel in the case at bar that the merchandise covered by the protests and entries listed in the protest schedule, which is attached hereto and made a part of this decision, is in all material respects the same as the merchandise the subject of the Kung Chen Fur Corp. case, supra. The record in that case was incorporated as part of the record in the instant case by agreement of counsel, and the plaintiff thereupon rested. The defendant then offered the testimonial evidence of 14 additional witnesses, and the plaintiff offered the evidence of 5 witnesses in rebuttal. In the incorporated case, the majority of this court, and the majority of the Court of Customs and Patent Appeals on appeal thereto, were of the opinion that the processes to which the kidskins involved had been subjected in China prior to being sewn into plates (the so-called “China dressing process”) did not dress the same within the meaning of the term “dressed,” as used in the provision for" }, { "docid": "22709529", "title": "", "text": "followed and the conclusion reached make it unnecessary to discuss other points of argument presented in the briefs of counsel for the respective parties. The protest is sustained and judgment will be rendered accordingly. DISSENTING OPINION Mollison, Judge: I am constrained to dissent from the decision and judgment of my colleagues in this case. The legal situation herein is distinguished from that which obtained in the case of United States v. Kung Chen Fur Corporation, 38 C. C. P. A. (Customs) 107, C. A. D. 447, cited and relied upon by the majority, by reason of the particular language of the tariff provision under which the lambskin plates at bar were assessed with duty, which provision is different from that under which the kidskin plates in the Kung Chen case were assessed. In short, a different issue is here presented. The kidskin plates in the Kung Chen case were classified by the collector of customs under paragraph 1519 (a) of the Tariff Act of 1930, which reads: Dressed furs and dressed fur skins (except silver or black fox), and plates, mats, linings, strips, and crosses of dressed dog, goat, or kid skins * * *. The lambskin plates at bar were classified by the collector under paragraph 1519 (b) of the same act, which reads: Manufactures of fur (except silver or black fox), further advanced than dressing, prepared for use as material (whether or not joined or sewed together) including plates, mats, linings, strips, and crosses (except plates, mats, linings, strips, and crosses of dog, goat, and kid skins) * * *. Language substantially the same as that immediately above was construed by our appellate court in Carlowitz v. United States, 2 Ct. Cust. Appls. 172, T. D. 31681, and it was held that the words “plates, linings, and crosses,” appearing in paragraph 439 of the Tariff Act of 1909, were words of extension rather than specification, and that whether they were dressed or dyed or not plates, linings, and crosses were properly dutiable thereunder. The rationale of that decision is that plates, etc., are manufactures of fur (Caracul Fur" }, { "docid": "22709527", "title": "", "text": "manufactures constituting materials for further manufacture. It was a phrase used, by Congress in connection with the subsequent limiting words to define by the entire expression a condition of merchandise upon which a rate of duty is levied, which, however, in fact had not reached a condition coming fully and completely within the term \"manufactures of furs” in the sense last above stated. The provision transposed, it seems to us, essentially provides as if it read “materials prepared for use when made of furs further advanced than dressing or dyeing.” This provision is tantamount to a description of the condition of merchandise constituting materials for and levying duties thereupon rather than an enactment assessing duties upon manufactures of that merchandise. That result is inherent from the very terms of limitation placed upon the phrase “manufactures of furs,” as used in the statute. [Italics quoted. ] Applying the foregoing analysis to paragraph 1519 (b) of the Tariff Act of 1930, the subject of the present discussion, it is quite clear that the plates of lambskins in question are removed from classification thereunder. First of all, the merchandise before us was not “prepared for use.” On the contrary, these plates of lambskins were unusable in their imported condition and required considerable processing or treatment, and manipulation, to become available for ultimate use by manufacturers. Furthermore, the plates were made up of undressed lambskins, a condition which excludes classification under said paragraph 1519 (b), as it specifically provides that the merchandise classifiable thereunder shall be “further advanced than dressing.” The Kung Chen Fur Corporation cases, supra, held plates of undressed kidskins to be free of duty under paragraph 1681, supra. Those cases presented facts and circumstances that so closely parallel the conditions concerning the processing in China, the treatment in this country, and the ultimate use by American manufacturers of the lambskin plates in question that the classification invoked in the said cases should also apply in the present case. Accordingly, we hold the plates of undressed lambskins in question to be free of duty under said paragraph 1681, as claimed. The reasoning" }, { "docid": "3689866", "title": "", "text": "Opinion by Oliver, C. J. It was stipulated that the merchandise and issues are the same in all material respects as those the subject of John P. Herber & Co., Inc. v. United States (30 Cust. Ct. 193, C. D. 1519). In accordance with stipulation of counsel and following the cited case, the protest was dismissed, and the matter was remanded to a single judge sitting in reappraisement for determination of the value of the merchandise in the manner provided by law (28 U. S. C. § 2636 (d))." }, { "docid": "22709508", "title": "", "text": "Plaintiff’s claim for free entry is based on the premise that the lambskin plates in question are merely undressed furs or fur skins, and that under clear and unambiguous language of paragraph 1519 of the Tariff Act of 1930, as judicially construed in a line of cases, hereinafter discussed, the present merchandise is excluded from the provisions of paragraph 1519 (b), as assessed, and is properly classifiable under said paragraph 1681. To support its contentions, plaintiff introduced the testimony of 15 witnesses, who may be divided into 3 general categories, i.e., importers of and dealers in furs and fur skins, fur dressers and dyers, and fur garment manufacturers. Each of the witnesses showed many years of experience in the particular branch of the fur business in which he has been engaged, and all of them were amply qualified to supply the factual foundation upon which plaintiff has presented its case. Before discussing plaintiff’s testimony, mention should be made of the pretrial conferences that resulted in certain agreements which became the subject of stipulated facts entered into between counsel for the respective parties during the course of the trial. The agreed facts are as follows: (1) That the articles in question “are imported, invoiced, bought and sold and dealt in and known as lambskin plates.” (2) That these lambskin plates “are oblong in shape and measure approximately 24 inches by 48 inches, with a possible variation as much as two inches in either direction.” (3) That plaintiff’s exhibits 1 to 8, inclusive, “are illustrative of the merchandise before the Court.” (4) That the lambskin plates in question were subjected to the same “China dressing process” as that applied to the kidskin plates that were the subject of the decisions in the cases of Kung Chen Fur Corp. v. United States, 24 Cust. Ct. 24, C. D. 1203, affirmed in United States v. Kung Chen Fur Corporation, 38 C. C. P. A. (Customs) 107, C. A. D. 447, and Kung Chen Fur Corpn. v. United States, 29 Cust. Ct. 266, C. D. 1480 (not appealed). The so-called “China dressing process” which was" }, { "docid": "22725528", "title": "", "text": "(a), swpra, and since it falls within the description of either fur or fur skins it would be classifiable under paragraph 1681, supra, if the rule stated in the decision of the Rotberg & Krieger, Arnhold & Co., and Winograd cases, supra, be followed. Being a fur or fur skin it is enumerated in the latter paragraph and there is no room for the application of paragraph 1568. [Italics supplied.] Our appellate court, thus having had the claim to classification under paragraph 1558, supra, brought squarely before it, and having held that paragraph not applicable, it is our view, therefore, that we should accept the decision in the Kung Chen Fur Corporation case, C. A. D. 447, supra, as the law governing the present case. Accordingly, we follow the decision in C. A. D. 447, supra, and hold the Chinese kidskin plates in question to be free of duty under paragraph 1681, supra, which covers “Furs and fur skins, not specially provided for, undressed,” as alleged by plaintiff. That claim in all of the protests before us is sustained and judgment will be rendered accordingly. DISSENTING OPINION Mollison, Judge: I regret that I am unable to concur in the decision rendered by my colleagues in this case. As I view the matter, as will be developed hereinafter in this dissenting opinion, there is a very important question of statutory interpretation involved in the ultimate determination of the case. I am of the opinion that the application of both logic and authority to that question of statutory interpretation requires a conclusion as to the classification status of the merchandise involved different from that reached by my colleagues. Some of the material contained in the following dissenting opinion may be repetitive of facts or data contained in the majority opinion. However, in the interest of orderly exposition of what I conceive to be the deciding factor in the case, I have set forth the background situation at some length. The merchandise involved in these cases, which were consolidated for purposes of trial and disposition, consists of plates of kidskins imported from China" }, { "docid": "22725518", "title": "", "text": "Oliver, Chief Judge: This case concerns the classification of ldd-skin plates exported from China and entered at the port of New York, Tbe merchandise was classified as plates of dressed kidskins, and assessed with duty either at 25 per centum ad valorem under paragraph 1519 (a) of the Tariff Act of 1930, as originally enacted, or at 12% per centum ad valorem under said paragraph, as modified by the trade agreement with Argentina, T. D. 50504. Plaintiff claims that the merchandise is free of duty under paragraph 1681 of the Tariff Act of 1930, which provides for “Furs and fur skins, not specially provided for, undressed[Italics added.] Although defendant seeks to support the collector’s classification, much stress is placed on an alternative claim for classification of the merchandise as nonenumerated manufactured articles under paragraph 1558 of the Tariff Act of 1930, carrying a dutiable assessment of 20 per centum ad valorem. Counsel for the respective parties have stipulated that the plates of kidskins in question, covered by the protests and entries enumerated in the schedule attached to and made a part hereof, are the same in all material respects as the merchandise which was the subject of Kung Chen Fur Corp. v. United States, 24 Cust. Ct. 24, C. D. 1203, affirmed in United States v. Kung Chen Fur Corporation, 38 C. C. P. A. (Customs) 107, C. A. D. 447, the record in which case was incorporated herein on motion of plaintiff and without objection from defendant. The incorporated case presented issues identical with those now before us. In other words, the present case is a retrial of the Rung Chen Fur Corp. case, supra. The incorporated record, as noted in our decision in C. D. 1203, supra, covered over 2,000 pages of testimony with some 42 exhibits. Plaintiff introduced testimony of 24 witnesses, and the Government offered the testimony of 13 witnesses. Both parties produced physical exhibits, illustrative of their respective lines of proof. Following incorporation herein of the record in the Kung Chen Fur Corp. case, supra, plaintiff rested, whereupon defendant introduced testimony of 14 witnesses, following" }, { "docid": "22103711", "title": "", "text": "A. D. 438. The court there said: Expressed in simple terms, the exact issue, as the case is presented to us, is whether the printing on the imported material so changed its status, within the meaning of the customs law, that it ceased to be paper and became an article-“made of paper,” as held by the trial court. * * * * * * the trial court erred in holding that the printing on the paper converted it into articles of paper *■ * *. The fact that the rolls of cellophane before us are used on a wrapping machine to wrap a specific product, does not change the status of this merchandise from “Cellophane” in bands or strips to an article-made therefrom. For these reasons, plaintiff’s claim to classification under paragraph 31 (b) (2) as being compounds of cellulose “made into finished or partly finished articles” is overruled. (See also Birn & Wachenheim v. Du Pont Cellophane Co. (Inc.), 17 C. C. P. A. 122, 127, T. D. 43454.) For reasons set forth herein and in view of our conclusion, plaintiff’s claim to classification under paragraph 1409, Tariff Act of 1930, as modified, supra, as “Wrapping paper” is overruled. Plaintiff’s claim to classification as a nonenumerated manufactured article under paragraph 1558 is likewise overruled. For reasons hereinbefore set forth, the classification of the collector is overruled and the plaintiff’s claim that the merchandise in question is dutiable under paragraph 31 (c), Tariff Act of 1930, as “Sheets, bands, and strips (whether known as cellophane or by any other name whatsoever), exceeding one inch in width but not exceeding three one-thousandths of one inch in thickness, * * * by solidification into sheets, bands, or strips,” at 45 per centum ad valorem is sustained. In all other respects the protest is overruled. Judgment will issue accordingly. DISSENTING OPINION Mollison, Judge: I am unable to agree with the conclusion of the majority that the merchandise at bar is entitled to classification under the provisions of paragraph 31 (c) of the Tariff Act of 1930, for the reason that I do not" }, { "docid": "22725529", "title": "", "text": "before us is sustained and judgment will be rendered accordingly. DISSENTING OPINION Mollison, Judge: I regret that I am unable to concur in the decision rendered by my colleagues in this case. As I view the matter, as will be developed hereinafter in this dissenting opinion, there is a very important question of statutory interpretation involved in the ultimate determination of the case. I am of the opinion that the application of both logic and authority to that question of statutory interpretation requires a conclusion as to the classification status of the merchandise involved different from that reached by my colleagues. Some of the material contained in the following dissenting opinion may be repetitive of facts or data contained in the majority opinion. However, in the interest of orderly exposition of what I conceive to be the deciding factor in the case, I have set forth the background situation at some length. The merchandise involved in these cases, which were consolidated for purposes of trial and disposition, consists of plates of kidskins imported from China which were classified by the collector as “plates * * * of dressed * * * kid skins” and assessed with duty under the provision therefor in paragraph 1519 (a) of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 1519 (a)) at the rate of 25 per centum ad valorem, if imported prior to the effective date of the modification of paragraph 1519 (a) by the Argentine Trade Agreement, T. D. 50504, or at 12% per centum ad valorem, if imported subsequent thereto. The claim relied upon by the importer is for free entry under the provision in paragraph 1681 of the Tariff Act of 1930 for “Furs and fur skins, not specially provided for, undressed.” There is no question but that the merchandise at bar consists of plates of kidskins, the issues as raised by the parties being whether they are plates of dressed kidskins, and, if not, whether they are classifiable as furs or fur skins. In those cases where the merchandise was assessed with duty at the rate" }, { "docid": "22103712", "title": "", "text": "and in view of our conclusion, plaintiff’s claim to classification under paragraph 1409, Tariff Act of 1930, as modified, supra, as “Wrapping paper” is overruled. Plaintiff’s claim to classification as a nonenumerated manufactured article under paragraph 1558 is likewise overruled. For reasons hereinbefore set forth, the classification of the collector is overruled and the plaintiff’s claim that the merchandise in question is dutiable under paragraph 31 (c), Tariff Act of 1930, as “Sheets, bands, and strips (whether known as cellophane or by any other name whatsoever), exceeding one inch in width but not exceeding three one-thousandths of one inch in thickness, * * * by solidification into sheets, bands, or strips,” at 45 per centum ad valorem is sustained. In all other respects the protest is overruled. Judgment will issue accordingly. DISSENTING OPINION Mollison, Judge: I am unable to agree with the conclusion of the majority that the merchandise at bar is entitled to classification under the provisions of paragraph 31 (c) of the Tariff Act of 1930, for the reason that I do not believe that a prima jade case in favor of such classification has been established. The full text of that provision reads as follows: Par. 31. (c) Sheets, bands, and strips (whether known as cellophane or by any other name whatsover), exceeding one inch in width but not exceeding three one-thousandths of one inch in thickness, made by any artificial process from cellulose, a cellulose hydrate, a compound of cellulose (other than cellulose ■acetate), or a mixture containing any of the foregoing, by solidification into ¡sheets, bands, or strips, 45 per centum ad valorem. .A careful examination of the entire record, including the written ¡stipulation of counsel upon which the case was submitted for decision, ■fails to reveal anything which could be considered as evidence or would dispense with the need of producing evidence on the question ¡of whether the bands or strips in issue were “made by any artificial process from * * * cellulose hydrate * * * by solidification ¡into * * * bands or strips.” As there is no evidence in the" }, { "docid": "22709509", "title": "", "text": "into between counsel for the respective parties during the course of the trial. The agreed facts are as follows: (1) That the articles in question “are imported, invoiced, bought and sold and dealt in and known as lambskin plates.” (2) That these lambskin plates “are oblong in shape and measure approximately 24 inches by 48 inches, with a possible variation as much as two inches in either direction.” (3) That plaintiff’s exhibits 1 to 8, inclusive, “are illustrative of the merchandise before the Court.” (4) That the lambskin plates in question were subjected to the same “China dressing process” as that applied to the kidskin plates that were the subject of the decisions in the cases of Kung Chen Fur Corp. v. United States, 24 Cust. Ct. 24, C. D. 1203, affirmed in United States v. Kung Chen Fur Corporation, 38 C. C. P. A. (Customs) 107, C. A. D. 447, and Kung Chen Fur Corpn. v. United States, 29 Cust. Ct. 266, C. D. 1480 (not appealed). The so-called “China dressing process” which was applied, as conceded by the parties, to the lambskin plates in question was described in our decision in the Kung Chen Fur Corp. case, C. D. 1203, supra, as follows: The raw kidskins were first soaked in water until soft; then they were scraped with a certain kind of knife to remove blood, dirt, and flesh from the under side of the skins. Following this, they were placed in vats, called “kongs,” into which had been poured a solution consisting of water, millet flour, and sea salt. They remained in this solution from 3 to 7 days, depending upon temperature, type of skin, etc., during which time they were occasionally stirred. After they were removed from the kongs they were hand-kneaded to soften them, and then they were permitted to dry, after which they were again softened by hand and then piled with a heavy weight on top to keep them flat. Following this, the skins were sorted according to the different types of hair character, after which groups of selected skins were laid out" }, { "docid": "22709524", "title": "", "text": "that they are dressed. Thirdly, it is the Government’s position that the provision for plates in itself derogates against the merchandise being held dutiable as furs or fur skins, that a plate is a manufactured article and as such it cannot be dutiable as a fur or fur skin * * * . Our conclusion, as hereinabove stated, that the present merchandise consists of plates of undressed lambskins, is dispositive of the Government’s second contention claiming “that they are dressed.” Defendant’s third claim, alleging that “a plate is a manufactured article and as such it cannot be dutiable as a fur or fur skin,” is one of the claims that was presented by the Government in the Kung Chen Fur Corporation cases, and therein held to be without merit. The record herein supports the same conclusion. Thus, our consideration is limited to defendant’s contention that the words in paragraph 1519 (b), supra, “including plates, mats, linings, strips, and crosses” are words of extension, which, as stated in Government counsel’s brief, “Extend the scope of that paragraph to include lambskin plates whether or not they be dressed.” In support thereof, defendant cites the case of Carlowitz v. United States, 2 Ct. Cust. Appls. 172, T. D. 31681, which arose under the Tariff Act of 1909 and involved judicial interpretation of the provision in paragraph 439 of said act for “manufactures of furs, further advanced than dressing and dyeing, when prepared for use as material, including plates, linings, and crosses.” The merchandise under consideration in the said Carlowitz case consisted of fur skins sewn into the form of crosses and linings. All of the skins were dressed; some of them were also dyed. The court found from the testimony and the samples that “much time and labor has been devoted to the matching and cutting of the different pieces making up these importations,” which resulted in “perfectly matched and selected crosses and linings.” It was also shown by the record, as stated by the appellate court, that the merchandise was “prepared for the use of the furrier and other manufacturers of furs.”" }, { "docid": "22725530", "title": "", "text": "which were classified by the collector as “plates * * * of dressed * * * kid skins” and assessed with duty under the provision therefor in paragraph 1519 (a) of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 1519 (a)) at the rate of 25 per centum ad valorem, if imported prior to the effective date of the modification of paragraph 1519 (a) by the Argentine Trade Agreement, T. D. 50504, or at 12% per centum ad valorem, if imported subsequent thereto. The claim relied upon by the importer is for free entry under the provision in paragraph 1681 of the Tariff Act of 1930 for “Furs and fur skins, not specially provided for, undressed.” There is no question but that the merchandise at bar consists of plates of kidskins, the issues as raised by the parties being whether they are plates of dressed kidskins, and, if not, whether they are classifiable as furs or fur skins. In those cases where the merchandise was assessed with duty at the rate of 25 per centum ad valorem, an additional claim for duty at the rate of 20 per centum ad valorem under the provision in paragraph 1558 for nonenumerated manufactured articles is included in each protest. This claim, while not specifically pressed, was not abandoned. The claim does not appear in the protests covering the merchandise which was assessed with duty at the rate of 12}( per centum ad valorem under paragraph 1519 (a), as modified. The record made on the trial of the issues herein presents afresh the issues presented in the case of Kung Chen Fur Corp. v. United States, decided by a majority of the first division of this court — the writer dissenting — on January 13, 1950, in favor of the plaintiff’s claim, the said decision being reported in 24 Cust. Ct. 24, C. D. 1203. Upon appeal by the defendant, the decision was affirmed by our appellate court under the style of United States v. Kung Chen Fur Corporation, reported in 38 C. C. P. A. (Customs) 107, C. A." }, { "docid": "20752913", "title": "", "text": "the court stated: “The evidence does not establish that this vaccine may not be imported in containers other than ampoules, but if it did, Congress has emphatically declared in paragraph 23 that drugs and medicinal and similar substances so imported are to be assessed at not less than 25 per centum ad valorem. There is no ambiguity whatever about this provision, and whenever any of the articles named in that paragraph are imported in ampoules, they must, in the absence of some provision more specifically controlling than paragraph 1510, pay at least that rate of duty.” The foregoing review of the two cited cases reveals nothing to support the motion for dismissal. On the contrary, the decisions, construing, as they do, paragraph 23, supra, show that the provisions thereof contemplate the classifica tion of certain kinds of merchandise imported in definitely specified forms, and supply reason for plaintiff’s position. The protest in question is directed against the collector’s classification of the present merchandise as coal-tar medicináis under paragraph 28, supra, and alleges that the imported products are drugs in capsules, one of the classes of merchandise provided for in said paragraph 23. That a justiciable issue has been formed therefrom is clear. The conclusion makes it unnecessary to discuss additional points suggested by counsel for plaintiff in their brief. The following, over the signature of Mollison, J., appeared on the face of the order denying motion to dismiss: I do not concur in all of the reasons set forth in the memorandum signed by my colleagues accompanying this order, particularly with respect to that part of the same which refers to the case of Geo. S. Bush & Co., Inc., et al. v. United States, 22 Cust. Ct. 158, C. D. 1175, and the actions of the single circuit judges in this case. However, I am satisfied that the motion to dismiss should be denied, and with the foregoing reservations, I join in this order." }, { "docid": "22613776", "title": "", "text": "particular criminal trial, such as a murder trial (the setting for the dispute in Richmond Newspapers) or a rape trial, depends not on the historical openness of that type of criminal trial but rather on the state interests assertedly supporting the restriction. See Part III-B, infra. See Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 569 (plurality opinion); id., at 596-597 (BRENNAN, J., concurring in judgment); Gannett Co. v. DePasquale, 443 U. S., at 383; id., at 428-429 (BLACKMUN, J., concurring in part and dissenting in part). See Levine v. United States, 362 U. S. 610, 616 (1960); In re Oliver, 333 U. S. 257, 268-271 (1948); Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 570-571 (plurality opinion); id., at 595 (Brennan, J., concurring in judgment); Gannett Co. v. DePasquale, supra, at 428-429 (Blackmun, J., concurring in part and dissenting in part). See Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 570-571 (plurality opinion); id., at 596 (Brennan, J., concurring in judgment); Gannett Co. v. DePasquale, 443 U. S., at 394 (Burger, C. J., concurring); id., at 428 (Blackmun, J., concurring in part and dissenting in part). Of course, limitations on the right of access that resemble “time, place, and manner” restrictions on protected speech, see Young v. American Mini Theatres, Inc., 427 U. S. 50, 63, n. 18 (1976), would not be subjected to such strict scrutiny. See Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 581-582, n. 18 (plurality opinion); id., at 598, n. 23 (Brennan, J., concurring in judgment); id., at 600 (Stewart, J., concurring in judgment). In its opinion following our remand, the Supreme Judicial Court of Massachusetts described the interests in the following terms: “(a) to encourage minor victims to come forward to institute complaints and give testimony. . . ; (b) to protect minor victims of certain sex crimes from public degradation, humiliation, demoralization, and psychological damage . . . ; (c) to enhance the likelihood of credible testimony from such minors, free of confusion, fright, or embellishment; (d) to promote the sound and orderly administration of justice . ." }, { "docid": "17803511", "title": "", "text": "Opinion by Johnson, J. In accordance with stipulation of counsel that the merchandise, facts, and issues are the same in all material respects as those the subject of R. J. Saunders & Co., Inc. v. United States (37 Cust. Ct. 267, C. D. 1834), the collector was directed to [reliquidate the entries, assessing duty upon the basis of the unit appraised value per conditioned pound or kilo, multiplied by the total number of conditioned pounds or kilos, as set forth in the invoices." }, { "docid": "5799736", "title": "", "text": "Ford, Judge: By the suit listed above, plaintiff herein challenges the' action of the collector of customs in classifying certain imported merchandise as articles having as an essential feature an electrical element, or device, in chief value of metal, not specially provided for, under paragraph 353 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739. Plaintiff claims said merchandise is entitled to entry free of duty under paragraph 1643 of said act as shoe machinery. The pertinent portions of the involved paragraphs are as follows: Paragraph 353, as modified, supra: Articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, finished or unfinished, wholly or in chief value of metal, and not specially provided for: Other * * *_ 13%% ad val. Paragraph 1643: Linotype and all typesetting machines, shoe machinery, * * * all the foregoing whether in whole or in part, including repair parts. [Free entry.] At the trial of this ease, a folder was admitted in evidence as exhibit 1, -on page 1 of which is shown a picture of the subject machine, with details of the same machine on the remaining pages. One witness testified for the plaintiff substantially as follows: That these machines are “About two yards by one yard table, I would say,” weighing “roughly 800 to 1,000 pounds”; that “The first step in making a line of shoes is to determine from a master pattern the pieces of leather which are needed for the manufacture of the various sizes and widths of shoes. This machine has a pantograph system, and from a master model, it enlarges or reduces the contours of all the parts of the shoe”; that it operates on “Paper or a special cardboard, .which is called pattern board, and which is used for — as a pattern for cutting the specific size of the leather piece”; “From the given master pattern, it makes not" }, { "docid": "22666653", "title": "", "text": "san ping 82 sie sat 1338 sai chok (yoke 9 kwat cheun san (wai san) 10/13 ngoi pak hop 14/15 hong chuen san (wai san) 22/4 hoi pak lin 35 hard nuts (lo hon quar) 44 hard nuts (lo hon quar) 73 sui sut 91 lung ngan pulp 1342 944103G/G0034 Tong Ciiun Gauk. 5 — 2 chuen mok kwar 16 — 1 yuk 23 — 2 sha sum 24 — 7 ehing 25 — 1 yuk chuk 25 — 14 yee shan tiu (wai san) 26 — 1 chuen shan (wai 27 — 7 mak hung (yuk chuk) Having decided that all of the commodities involved are drugs, and in view of the above stipulation, we hold as follows: That the items enumerated in the stipulation set forth above, with the exception of those followed by the letters G, H, and E in the column designated “Invoice descriptions” are properly free of duty under paragraph 1669 of the Tariff Act of 1930 as crude drugs. That the items enumerated in said stipulation followed by the letters G, H, and E in said column, are properly dutiable as drugs advanced under paragraph 34 of the same act. That in protest 481730-G the testimony shows that the commodity covered by item 2, case 1, is similar to Exhibit B and that the commodity covered by item 3, case 1, is similar to Exhibit O. We therefore sustain the claims for free entry as crude drugs under paragraph 1567 of the Tariff Act of 1922, as to those items. As to protest 545036-G the testimony discloses that the merchandise in case 3 consists of bak hop similar to Exhibit A herein; that the merchandise covered by case 19, item 9, consists of sui sut similar to Exhibit D and that covered by case 21, item 6, consists of yuen yuk similar to Exhibit J. We therefore sustain the claims for free entry as crude drugs under paragraph 1669, Tariff Act of 1930, as to those items. As to .protest 938217-G we accept the statements of counsel for the plaintiffs at the hearing, which" }, { "docid": "22709525", "title": "", "text": "paragraph to include lambskin plates whether or not they be dressed.” In support thereof, defendant cites the case of Carlowitz v. United States, 2 Ct. Cust. Appls. 172, T. D. 31681, which arose under the Tariff Act of 1909 and involved judicial interpretation of the provision in paragraph 439 of said act for “manufactures of furs, further advanced than dressing and dyeing, when prepared for use as material, including plates, linings, and crosses.” The merchandise under consideration in the said Carlowitz case consisted of fur skins sewn into the form of crosses and linings. All of the skins were dressed; some of them were also dyed. The court found from the testimony and the samples that “much time and labor has been devoted to the matching and cutting of the different pieces making up these importations,” which resulted in “perfectly matched and selected crosses and linings.” It was also shown by the record, as stated by the appellate court, that the merchandise was “prepared for the use of the furrier and other manufacturers of furs.” It is readily discernible from the record before us, as hereinabove outlined, that the plates of lambskins in question are materially different from the crosses and linings of dressed skins involved in the Carlowitz case, supra. The very definite distinction between the classes of merchandise the subject of the cited case and the plates of lambskins now under consideration renders inapplicable here the reasoning followed there. A significant part of the Carlowitz case is the court’s analysis of the provision in paragraph 439, supra, set forth as follows: Whilst the provision opens with the phrase “manufactures of furs,” the subsequent limitations placed upon that phrase in that such shall be “further ad- vaneed than dressing and dyeing,” and be such as are \"prepared for use as material,” indicate that the term \"manufactures of furs” was not used by Congress with a view to including therewithin and making here dutiable only such things as arise to the dignity of manufactures of furs in the sense of articles completed, ready for final use, as distinguished from such" } ]

[ { "docid": "22373595", "title": "", "text": "for protection of the community, as a truly independent risk assessment has not been conducted. Perhaps even more compelling is that such a term is needed to meet the goal of ensuring adequate rehabilitative treatment. The issues underlying sex offenses are typically deeply ingrained and require life long management. Should the defendant be able to demonstrate to the Court during the term of supervised release that all the underlying clinical truths as to his condition have been identified and ameliorated, the defendant can apply for an early termination of his supervised release. Most of the argument at the sentencing hearing related to the term of imprisonment. The lifetime term of supervised release and special conditions of release were not brought up by either party. The district court ultimately imposed a 51-month sentence of imprisonment, below the low-end of the advisory Guidelines range. Although Daniels’ opening brief challenged his term of imprisonment as unreasonable, he withdrew that argument in his reply brief. The district, court also imposed a lifetime term of supervised release with several special conditions, including those to which Daniels had consented in the plea agreement and others for which he had not waived appellate rights. Daniels timely appealed, challenging the length of his term of supervised release as well as several of its special conditions. II We first address Daniels’ challenges to the district court’s imposition of a lifetime term of supervised release. The length of Daniels’ term of supervised release is part of his sentence and is reviewed for reasonableness. See United States v. Cope, 527 F.3d 944, 950 (9th Cir.2008). “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). Daniels argues that the lifetime term must be reversed because the district court failed to explain its reasons for its imposition in violation of 18 U.S.C. § 3553(c), which provides that “[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.”" } ]

[ { "docid": "23365693", "title": "", "text": "OPINION MARBLEY, District Judge: Tim James Collins appeals his conviction and imposition of a 60-month sentence following his entry of a plea of guilty to a single charge of possessing child pornography that had been shipped in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). Collins challenges his conviction and sentence on three bases: (1) the district court’s acceptance of Collins’s guilty plea violated Federal Rule of Criminal Procedure 11; (2) the First Superseding Indictment was invalid due to improper instructions submitted to the grand jury; and (3) the lifetime term of supervised release imposed by the district court is unreasonable and unconstitutional. Collins contends that, as a result of these errors, the district court’s judgment must be vacated, and he is entitled to negotiate about re-pleading under the status quo ante immediately after his initial, August 18, 2009, plea. Collins alternatively contends that the lifetime term of supervised release and certain conditions of release should be struck from his sentence. The district court did not err in accepting Mr. Collins’s guilty plea, and Collins’s challenges to the grand jury instructions were untimely and therefore waived. Accordingly, we AFFIRM Collins’s conviction. We hold, however, that the district court committed procedural error by failing to provide adequate analysis for the imposition of the residency restrictions in Collins’s lifetime term of supervised release. We, therefore, VACATE the supervised release portion of his sentence, and REMAND the case to the district court to resentence Collins under the First Superseding Indictment. The district court’s articulated reasons for its imposed sentence must show that it properly analyzed all the required factors to be considered under 18 U.S.C. § 3553(a) before imposing terms and conditions of supervised release which are substantively reasonable, in light of Collins’s offense characteristics and the goals of sentencing. I. BACKGROUND A. Factual History On December 19, 2007, an FBI Special Agent, working undercover, used peer-to-peer network software to view lists of videos and images stored on Collins’s computer. The agent downloaded and viewed three images that appeared to be child pornography. On March 6, 2008, agents executed a federal search" }, { "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": "23365734", "title": "", "text": "analysis and support for its imposed terms and conditions of supervised release. c. Substantive Reasonableness of Condition 15 The next step in our review of Collins’s conditions of release would be to evaluate them for substantive reasonableness. The sentencing court “enjoys significant discretion in crafting terms of supervised release for criminal defendants, including the authority to impose restrictions that infringe on fundamental rights,” but that discretion “is not, however, boundless.” United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006). In Weber, the Court held that “conditions of supervised release are permissible only if they are reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender.” Id. at 558. There is good reason to suspect that the imposition of the sweeping residency restriction in Condition 15 for life is substantively unreasonable for Collins’s conviction of possession of child pornography. Because we have concluded the district court procedurally erred by failing to provide adequate reasons for imposing Condition 15 where the reasons for such a condition were not clear form the record alone, it follows that we do not reach the question of the substantive reasonableness of Collins’s conditions of release. We remand the determination of the substantive reasonableness of Condition 15 to the district court, as part of its reconsideration under 18 U.S.C. § 3553(a) for whether the residency restriction involves “a greater deprivation of liberty than is reasonably necessary.” Rudd, 662 F.3d at 1264 (quoting Daniels, 541 F.3d at 924). d. Constitutional Challenges to Condition 15 Collins raises a number of constitutional challenges to the restrictions posed by the lifetime term of supervised release containing Condition 15. Collins claims that Condition 15’s residency restriction is so overbroad and punitive that it violates four separate fundamental liberty interests: his right to interstate travel; intrastate travel; freedom of association; and freedom of assembly. Collins also claims that his fundamental right to acquire, own, possess and enjoy property is unconstitutionally abridged by Condition 15, because under the condition he must move whenever a restricted child-oriented establishment is opened within a 2,000-foot radius of his residence. Finally," }, { "docid": "7642685", "title": "", "text": "to justify a life sentence.” The court gave many reasons including its review of the sentencing factors, the nature of the offense, and Preston’s characteristics. See United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (“A within-Guidelines sentence ordinarily needs little explanation.”). Preston also argues that the sentence is substantively unreasonable, asserting that the court failed to take into account the sentencing factors provided by 18 U.S.C. § 3553(a). Section 3553(a) states that the court must consider: “the nature and circumstances of the offense and the history and characteristics of the defendant ... [and] shall impose a sentence sufficient, but not greater than necessary ... [1] to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; [2] to afford adequate deterrence to criminal conduct; [3] to protect the public from further crimes of the defendant; and [4] to provide the defendant with needed ... correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a). The district court made explicit reference to section 3553(a) and took these factors into account during sentencing. Preston argues that the sentence was “greater than necessary” because his age, mental impairments, and lack of a prior record should necessitate a lesser sentence. The court accounted for these facts, and Preston’s argument is not sufficient to show that the court abused its discretion. However, the prosecution recommended a lifetime term of supervised release because “the extent of [Preston’s] dysfunction” was not clear at the time of the trial. The prosecutor reasoned that “if [at] some later time it becomes clear that he has been rehabilitated ... he can have that term of supervised release shortened ... but at no time can Your Honor lengthen the term of supervised release if you don’t avail yourself today of the term of lifetime supervised release.” We cannot, on this record, hold that the court abused its discretion, but we note that Preston is young and this can possibly be a very long sentence. We therefore suggest that the district court, in its own discretion, consider the prosecutor’s" }, { "docid": "23015261", "title": "", "text": "protect the public, and rehabilitate the defendant. 18 U.S.C. § 3583(d)(2); see United States v. Pruden, 398 F.3d 241, 248 (3d Cir.2005) (noting that the considerations included in § 3583 by the incorporation of § 3553 “are fairly broad, but they do impose a real restriction on the district court’s freedom to impose conditions on supervised release”). Conditions of supervised release must be supported by some evidence that the condition imposed is tangibly related to the circumstances of the offense, the history of the defendant, the need for general deterrence, or similar concerns. Pruden, 398 F.3d at 248-49. “[A] condition with no basis in the record, or with only the most tenuous basis, will inevitably violate § 3583(d)(2)’s command that such conditions involve no greater deprivation of liberty than is reasonably necessary.” Id. at 249 (internal quotations omitted). Accordingly, “courts of appeals have consistently required district courts to set forth factual findings to justify spe.eial probation conditions.” United States v. Warren, 186 F.3d 358, 366 (3d Cir.1999). Where a sentencing court fails to adequately explain its reasons for imposing a condition of supervised release or the condition’s relationship to the applicable sentencing factors, we may nevertheless affirm the condition if we can “ascertain any viable basis for the ... restriction in the record before the District Court ... on our own.” See id., 186 F.3d at 367. Although Voelker is challenging the lifetime term of his supervised release as well as the three special conditions of supervised release set forth above, we need not separately address his challenge to the term of his supervised release. Our discussion of the propriety of the conditions imposed on that term applies to duration of the term with equal force. Accordingly, we will focus on the propriety of the conditions of the supervised release. A. Prohibition op Computer Equipment and the Internet Voelker contends that an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to" }, { "docid": "22131076", "title": "", "text": "as early as 1981 and as late as 2003, id., and the need to protect the public once Cope leaves prison, id. § 3553(a)(2)(C). The lifetime term is also reasonable in light of the “pertinent policy statement,” id. § 3553(a)(5), issued by the Sentencing Commission, which recommends the maximum term of supervised release for sex offenses, U.S.S.G. § 5D1.2(c). The Sentencing Guidelines’ definition of “sex offense” includes child pornography possession. United States v. Allison, 447 F.3d 402, 405 (5th Cir.2006); United States v. Kimler, 335 F.3d 1132, 1147 (10th Cir.2003); 18 U.S.C. § 2252A (statute is located in Chapter 110 of title 18, which falls under the definition). Accordingly, a lifetime term of supervised release for Cope is consistent with the policy statement’s recommendation. See 18 U.S.C. § 3583(k) (2003) (lifetime statutory maximum). Moreover, although their opinions do not necessarily render the sentence reasonable in this particular case, some of our sister circuits have held that life terms of supervised release are reasonable for those convicted of possession of child pornography. See Hayes, 445 F.3d at 537 (2d Cir.2006) (“The fact that Hayes ... already was a recidivist [ ] weakens substantially his argument that” a lifetime term was unreasonable.); United States v. Gonzalez, 445 F.3d 815, 820 (5th Cir.2006) (lifetime term for possession of child pornography was reasonable); see also United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.2005) (lifetime term did not violate Eighth Amendment). Therefore, under our deferential standard of review and the circumstances of this case, we uphold the district court’s sentence of a lifetime term of supervised release. V. Cope challenges certain special conditions of his supervised release on the grounds that (1) he did not receive notice of the conditions prior to the district court’s announcement of the sentence, and (2) that the district court failed to make adequate findings to support the special conditions of release. The government concedes, at least in part, that these challenges have merit and that a remand is therefore required. A. “Where a condition of supervised release is not on the list of mandatory or discretionary conditions" }, { "docid": "23327623", "title": "", "text": "United States’ reply. Further, the district court properly determined that a lifetime term of supervised release is recommended by the Guidelines for his crime and that, while it was not compelled to sentence Apodaca to this term, the facts of Apodaca’s case warranted a sentence that included lifetime supervised release. See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b)(2) & cmt. n. 1. See also Daniels, 541 F.3d at 923. Finally, when Apodaca objected to the length of the sentence’s term of supervised release, the district court addressed his concern (albeit briefly) and modified the language of the sentencing order to permit Apodaca to seek relief from this aspect of his sentence at a later date. It is clear that the trial court adequately justified its sentencing decisions. B. Substantive Reasonableness Having determined that the district court did not commit a procedural error when sentencing Apodaca, we turn to considering the sentence’s substantive reasonableness. Blinkinsop, 606 F.3d at 1116. When reviewing the substantive reasonableness of a sentence, we look at the reasonableness of the sentence “in light of all the 18 U.S.C. § 3553(a) factors, including the applicable Guideline range,” United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006), as well as “the degree of variance for a sentence imposed outside the Guidelines range.” United States v. Autery, 555 F.3d 864, 870 (9th Cir.2009) (citing Carty, 520 F.3d at 993). Trial courts are supposed to impose sentences that are “sufficient but not greater than necessary,” 18 U.S.C. § 3553(a), and appellate courts are only to reverse sentences when they find that the trial court has abused its discretion. United States v. Barsumyan, 517 F.3d 1154, 1157-58 (9th Cir.2008). “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We have previously held that sentencing individuals convicted of possessing child pornography to lifetime terms of supervised release is not substantively unreasonable. United States v. Cope, 527 F.3d 944, 952 (9th Cir.2008);" }, { "docid": "22373603", "title": "", "text": "is reasonably related to his offense of conviction or to his background, but argues that because he “had never posed a threat to anyone,” the deprivation of liberty involved is greater than necessary to protect the public and prevent recidivism. Although, unlike the defendant in Cope, Daniels has no prior sex offense convictions, the district court was not obligated to accept his assertion that he “never posed a threat to anyone,” or to rely on a report he submitted that the Probation Office found was “based almost exclusively on [Daniels’] self-interested self-reporting.” See United States v. Rearden, 349 F.3d 608, 620 (9th Cir.2003) (“Although [defendant] testified that his sexual interest in children was strictly fantasy ..., the district court was entitled not to accept his version of the facts”). The Probation Office was concerned that “a truly independent risk assessment” was never conducted on Daniels because he “carefully controlled the type of information provided to the Court,” and both the Probation Office and the court were concerned that Daniels “lack[ed] ... insight into his problems.” The court was also concerned about Daniels’ “addictive behavior,” which contributed significantly to his offense conduct. Additionally, as the district court reminded Daniels at sentencing, merely possessing child pornography is not a victimless crime; it fuels the demand for the creation and distribution of child pornography. The government presented evidence of the harm that children suffer when they are used in the creation of child pornography and when that pornography is distributed to others. A lifetime term of supervised release was warranted in order to ensure that Daniels does not relapse into his addictive behavior and again begin collecting child pornography. The district court was within its discretion to conclude that a lifetime term of supervised release was necessary to punish Daniels for his crime, to rehabilitate him, and to protect the public from future crimes by Daniels. Daniels’ constitutional argument focuses on the fact that several conditions of supervised release restrict his access to computers and the internet which, if imposed for an entire lifetime, he argues, improperly restrict his First Amendment rights. However," }, { "docid": "22373600", "title": "", "text": "that a reasoned decision has been made. It is most helpful for this to come from the bench, but adequate explanation in some cases may also be inferred from the PSR or the record as a whole.” 520 F.3d at 992. Here, the PSR and record as a whole communicate that the district court heard and rejected Daniels’ arguments. Furthermore, the district court expressly stated that its sentence was based upon consideration of the sentencing factors enumerated in 18 U.S.C. § 3553(a). The district cornet did not commit procedural error. Daniels also argues that the lifetime term of supervised release is substantively unreasonable because it improperly restricts Daniels’ First Amendment rights and because it involves a greater deprivation of liberty than is necessary to meet the goals of supervised release. Substantive reasonableness is reviewed “in light of all the 18 U.S.C. § 3553(a) [sentencing] factors, including the applicable Guidelines range.” United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006). While we have not adopted a presumption of reasonableness for a within-Guidelines sentence, we “abide by the Supreme Court’s admonition that ‘when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.’ ” Carty, 520 F.3d at 994 (quoting Rita, 127 S.Ct. at 2465). 18 U.S.C. § 3583(k) authorizes a term of supervised release of “not less than 5 [years], or life” for offenses involving a minor victim, including possession of child pornography in violation of 18 U.S.C. § 2252A. The Sentencing Guidelines also provide that “the length of the term of supervised release shall not be less than the minimum term of years specified for the offense ... and may be up to life, if the offense is a sex offense.” U.S.S.G. § 5D1.2(b)(2). An accompanying policy statement recommends the maximum term of supervised release for a sex offense. See id. Application Note 1 to section 5D1.2 defines possession of child pornography as a sex offense. The Probation Office recommended a lifetime term of supervised release in part based" }, { "docid": "23365720", "title": "", "text": "good cause for granting relief from Rule 12’s mandated waiver, Collins has relinquished his opportunity to raise the instructional challenges on appeal. C. The Court’s Imposition of a Life Term of Supervised Release 1. Standard of Review The Court’s review of Collins’s sentence involves a two-step determination for whether the district court abused its discretion. First, we review the sentence for any significant procedural errors. United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc). As a matter of procedural due process, “a sentencing judge must explain a sentence sufficiently to communicate ‘that a reasoned decision has been made’ and ‘permit meaningful appellate review.’ ” United States v. Rudd, 662 F.3d 1257, 1260 (9th Cir.2011); 18 U.S.C. § 3553(a). The sufficiency of a court’s explanation of its sentence is case specific. See Carty, 520 F.3d at 992. In the second step, we review the sentence for its substantive reasonableness, accounting for the “totality of the circumstances” presented to the district court. United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir.2010). This Court, tracking the language of 18 U.S.C. § 3553(a), has held that “[a] substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals.” Rudd, 662 F.3d at 1260. The length of a term of supervised release is reviewed for its reasonableness using the same, deferential, abuse-of-discretion standard used for. challenges to any other part of the defendant’s sentence. United States v. Apodaca, 641 F.3d 1077, 1079 (9th Cir.2011), cert. denied,—U.S.-, 132 S.Ct. 296, 181 L.Ed.2d 179 (2011). Additionally, we review the district court’s decision to impose a particular condition of a term of supervised release for an abuse of discretion. Rudd, 662 F.3d at 1259; United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir.2008). 2. Analysis Collins challenges the district court’s procedural and substantive reasonableness in imposing the lifetime term of supervised release with Condition 15, which prohibits him from residing within 2,000 feet of parks, schools, and other child areas, particularly in conjunction with Condition 11, which prohibits frequenting or loitering “within 100 feet of" }, { "docid": "22373602", "title": "", "text": "on this policy statement, which reflects the judgment of Congress and the Sentencing Commission that a lifetime term of supervised release is appropriate for sex offenders in order to protect the public. See H.R. Rep. 107-807, 2003 WL 131168 (discussing lifetime supervised release for sexual offenders). This policy recommendation was a factor in our decision to uphold a lifetime term of supervised release in Cope, 527 F.3d at 952: “[t]he lifetime term is also reasonable in light of the ‘pertinent policy statement’ issued by the Sentencing Commission, which recommends the maximum term of supervised release for sex offenses” (internal citations omitted). The recommendation was also based on Daniels’ “stated interest in child pornography over a number of years; his strong desire to protect the child pornography images ...; and an unknown clinical risk assessment.” Additionally, the Probation Office pointed out the importance of a lifetime term of supervised release in rehabilitating Daniels because “[t]he issues underlying sex offenses are typically deeply ingrained and require life long management.” Daniels does not question that the lifetime term is reasonably related to his offense of conviction or to his background, but argues that because he “had never posed a threat to anyone,” the deprivation of liberty involved is greater than necessary to protect the public and prevent recidivism. Although, unlike the defendant in Cope, Daniels has no prior sex offense convictions, the district court was not obligated to accept his assertion that he “never posed a threat to anyone,” or to rely on a report he submitted that the Probation Office found was “based almost exclusively on [Daniels’] self-interested self-reporting.” See United States v. Rearden, 349 F.3d 608, 620 (9th Cir.2003) (“Although [defendant] testified that his sexual interest in children was strictly fantasy ..., the district court was entitled not to accept his version of the facts”). The Probation Office was concerned that “a truly independent risk assessment” was never conducted on Daniels because he “carefully controlled the type of information provided to the Court,” and both the Probation Office and the court were concerned that Daniels “lack[ed] ... insight into his problems.”" }, { "docid": "7642684", "title": "", "text": "viewed in the light most favorable to the prosecution, could not convince a rational trier of fact that the assault occurred. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. IX. The length of a term of supervised release is part of the sentence and is reviewed for reasonableness. United States v. Daniels, 541 F.3d 915, 921 (9th Cir.2008). We must consider (1) whether the district court committed significant procedural error, and then (2) the sentence’s substantive reasonableness. Id. Whether the district court adequately explained its reasons for a sentence is a procedural issue, United States v. Cherer, 513 F.3d 1150, 1159 (9th Cir.2008), reviewed de novo, United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.2009). If the district court’s sentence is procedurally sound, we will review the substantive reasonableness of the sentence for an abuse of discretion. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir.2012). The district court’s imposition of a lifetime term of supervised release was procedurally sound. The record does not support Preston’s assertion that the court “gave no reasons to justify a life sentence.” The court gave many reasons including its review of the sentencing factors, the nature of the offense, and Preston’s characteristics. See United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (“A within-Guidelines sentence ordinarily needs little explanation.”). Preston also argues that the sentence is substantively unreasonable, asserting that the court failed to take into account the sentencing factors provided by 18 U.S.C. § 3553(a). Section 3553(a) states that the court must consider: “the nature and circumstances of the offense and the history and characteristics of the defendant ... [and] shall impose a sentence sufficient, but not greater than necessary ... [1] to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; [2] to afford adequate deterrence to criminal conduct; [3] to protect the public from further crimes of the defendant; and [4] to provide the defendant with needed ... correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a). The district court made explicit reference to section" }, { "docid": "23327620", "title": "", "text": "later time to shortening Apodaca’s term of supervised release and included a statement in the sentencing order permitting Apodaca to request such relief later. Apodaca appeals from the district court’s sentencing order on two grounds. First, he claims that the imposition of lifetime supervised release was unreasonable. Second, he claims that the fifteenth supervised release condition violates his constitutional rights. For the reasons articulated below, we reject both arguments. II. We conduct a two-step analysis when reviewing the reasonableness of a sentence: “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). A. Procedural Error When determining whether a district court committed a reversible procedural error during sentencing, we consider whether the court “(1) correctly calculate^] the Sentencing Guidelines range; (2) treat[ed] the Guidelines as Advisory; (3) considered] the 18 U.S.C. § 3553(a) factors; (4) [chose] a sentence that is not based on clearly erroneous facts; (5) adequately explain[ed] the sentence; and (6) [did] not presume that the Guidelines range is reasonable.” United States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir.2010) (footnote omitted) (citing Carty, 520 F.3d at 991-93). While Blinkinsop and Carty concerned allegations of procedural error with regard to terms of imprisonment, we consider the same factors when considering challenges to terms of supervised release. See Daniels, 541 F.3d at 921. Apodaca’s allegations of procedural error are limited to claims concerning the adequacy of the district court’s explanation of why it was imposing a lifetime term of supervised release. The sentencing statutes require district courts to “state in open court the reasons [supporting] imposition of a particular sentence.” 18 U.S.C. § 3553(c). Further, “when a party raises a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” Carty, 520 F.3d at 992-93. Even though a “within-Guidelines sentence ordinarily needs little explanation,” courts are required to provide some explanation for their decision when “a party" }, { "docid": "22373605", "title": "", "text": "as he admits, Daniels agreed to those conditions in his plea agreement. Contrary to Daniels’ assertion, the plea agreement expressly informed him that the district court could impose a sentence up to a lifetime of supervised release. At his change of plea hearing, Daniels was again reminded that he could receive a lifetime term of supervised release, and he stated that he understood the maximum penalties to which he was subject. As Daniels expressly agreed to the conditions knowing that a lifetime term of supervised release might be imposed, he has waived his right to challenge them. His First Amendment argument is therefore meritless. Ill Daniels next challenges a number of the conditions of supervised release imposed by the district court. We review the district court’s decision to impose conditions of supervised release for an abuse of discretion. United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006). In applying this standard of review, “we give considerable deference to a district court’s determination of the appropriate supervised release conditions,” recognizing that “a district court has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude.” Id. (internal quotation marks omitted). District courts may impose conditions of supervised release “if they are reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender, and involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release.” Rear-den, 349 F.3d at 618 (internal quotation marks omitted); see also 18 U.S.C. § 3583(d). “Circuit law establishes that a sentencing judge is not required to articulate on the record at sentencing the reasons for imposing each condition of supervised release, where we can determine from the record whether the court abused its discretion.” United States v. Betts, 511 F.3d 872, 876 (9th Cir.2007) (internal quotation marks and footnote omitted). However, to impose a condition that implicates a significant liberty interest, the district court must support its decision on the record with evidence justifying the condition. United States v. Williams, 356 F.3d 1045, 1055-57 (9th Cir.2004). A. Condition six of" }, { "docid": "23327624", "title": "", "text": "light of all the 18 U.S.C. § 3553(a) factors, including the applicable Guideline range,” United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006), as well as “the degree of variance for a sentence imposed outside the Guidelines range.” United States v. Autery, 555 F.3d 864, 870 (9th Cir.2009) (citing Carty, 520 F.3d at 993). Trial courts are supposed to impose sentences that are “sufficient but not greater than necessary,” 18 U.S.C. § 3553(a), and appellate courts are only to reverse sentences when they find that the trial court has abused its discretion. United States v. Barsumyan, 517 F.3d 1154, 1157-58 (9th Cir.2008). “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We have previously held that sentencing individuals convicted of possessing child pornography to lifetime terms of supervised release is not substantively unreasonable. United States v. Cope, 527 F.3d 944, 952 (9th Cir.2008); Daniels, 541 F.3d at 922. Apodaca claims that the district court’s decision to sentence him to a lifetime term of supervised release was unreasonable on two grounds. First, he contends that the district court did not consider all of the mitigating facts present in his case and that the court’s sentence contradicted its own findings concerning Apodaca’s character and likelihood of committing future crimes. Second, he argues that the court failed to recognize important differences between individuals who have been convicted of possession-only child pornography crimes and violent sexual predators, leading it to enter an unduly severe sentence. Although a district court’s failure to properly consider the § 3553(a)-relevant facts of a defendant’s case may support a finding of substantive unreasonableness, Apodaca’s contention is not supported by the record. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir.2009). Despite Apodaca’s assertions to the contrary, there is every indication that the district court considered the specific facts presented by his case and that its sentence was consistent with its assessment of these facts. The" }, { "docid": "22373599", "title": "", "text": "position, the defendant’s position regarding sentencing factors, and then the government’s response to the defendant’s sentencing memorandum on the defendant’s position. I’ve read all of the exhibits; the report from the treating therapists and doctors; the letters, Mr. Daniels’ letters; and the various other information that you submitted concerning sentencing issues and placement issues. From this record, it is clear that the sentencing court was aware of Daniels’ objection to the recommended term of supervised release and had considered Daniels’ arguments and evidence before making its decision. See Carty, 520 F.3d at 996 (reasoning that when a sentencing judge “stated that he reviewed the papers” and “the papers discussed the applicability of § 3553(a) factors,” we can assume that the judge considered the relevant factors). Certainly the district court could have said more to explain its decision, as did the district court in Cope, 527 F.3d at 951-52, but such a lengthy explanation is not always necessary. Indeed, as we recently stated in Carty, “[a]n explanation communicates that the parties’ arguments have been heard, and that a reasoned decision has been made. It is most helpful for this to come from the bench, but adequate explanation in some cases may also be inferred from the PSR or the record as a whole.” 520 F.3d at 992. Here, the PSR and record as a whole communicate that the district court heard and rejected Daniels’ arguments. Furthermore, the district court expressly stated that its sentence was based upon consideration of the sentencing factors enumerated in 18 U.S.C. § 3553(a). The district cornet did not commit procedural error. Daniels also argues that the lifetime term of supervised release is substantively unreasonable because it improperly restricts Daniels’ First Amendment rights and because it involves a greater deprivation of liberty than is necessary to meet the goals of supervised release. Substantive reasonableness is reviewed “in light of all the 18 U.S.C. § 3553(a) [sentencing] factors, including the applicable Guidelines range.” United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006). While we have not adopted a presumption of reasonableness for a within-Guidelines sentence, we “abide" }, { "docid": "23327616", "title": "", "text": "OPINION CUDAHY, Circuit Judge: Daniel Apodaca pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). The district court deviated downward from the United States Sentencing Guidelines’ recommendation and sentenced Apodaca to two years imprisonment and lifetime supervised release. Apodaca appeals the supervised release portion of his sentence, arguing that its length was unreasonable and that one of the supervised release conditions violates his constitutional rights. We affirm. I. A. Jurisdiction and Standard of Review We review the length of a term of supervised release for reasonableness. United States v. Daniels, 541 F.3d 915, 921 (9th Cir.2008). When reviewing a sentence for reasonableness, we “merely ask[ ] whether the trial court abused its discretion.” Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Similarly, this court reviews “a district court’s determination of the appropriate supervised release conditions ... for abuse of discretion.” United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. B. Factual and Procedural Background In January 2008, the Los Angeles Police Department conducted an undercover, online investigation of individuals sharing child pornography over the internet. During the course of this investigation, a detective discovered that a computer owned by Daniel Apodaca contained a sizeable library of child pornography. On March 6, 2008, officers executed a federal search warrant at Apodaca’s apartment. These officers seized Apodaca’s laptop, which contained the pornographic materials the police had discovered earlier, and several compact discs, which contained further pornographic images and videos of children. On July 28, 2008, Apodaca was arrested and charged with one count of violating 18 U.S.C. § 2252A(a)(5)(B), (b)(2) in the U.S. District Court for the Central District of California. The court released him on a $10,000 appearance bond and ordered that he comply with certain conditions of release. Apodaca fully complied with the terms of his release on bond. On December 12, 2008, Apodaca appeared before the district court and pleaded guilty. He acknowledged that he had knowingly possessed child" }, { "docid": "23190651", "title": "", "text": "” to the district court’s conclusions regarding supervised release conditions. Id. (quoting United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006)). Our review is limited to whether the condition was procedurally and substantively reasonable. Id. at' 1090. Finally, “[Conditions affecting fundamental rights ... are ‘reviewed carefully.’ ” Id. at 1089 (quoting United States v. Soltero, 510 F.3d 858, 866 (9th Cir.2007)). DISCUSSION I. The district court did not commit procedural error. To avoid procedural error, a district court must consider the relevant statutory sentencing factors. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). When the court imposes a special condition of supervised release, the relevant factors include “the nature and circumstances of the offense and the history and characteristics of the defendant,” the need for the sentence to “afford adequate deterrence to criminal conduct,” the need to “protect the public from further crimes of the defendant,” and the rehabilitation of the defendant. 18 U.S.C. § 3553(a)(1), (2); 18 U.S.C. § 3583(d)(1). Procedural error occurs if the district court “choose[s] a sentence based on clearly erroneous facts” or “fail[s] adequately to explain the sentence selected.” Carty, 520 F.3d at 993. A sufficient explanation “permit[s] meaningful appellate review” and “communicates that the parties’ arguments have been heard, and that a reasoned decision has been made.” Id. at 992. We evaluate the sufficiency of the district court’s explanation on a case-by-case basis. See United States v. Daniels, 541 F.3d 915, 921 (9th Cir.2008). A detailed explanation from the court is not always required; in some cases, “adequate explanation ... may also be inferred from the [Pre-Sentence Re port] or the record as a whole.” Id. at 922 (internal quotation marks omitted). In cases implicating a “particularly significant liberty interest,” however, a specific explanation from the court is necessary, and there is an additional hurdle: “ ‘the district court must support its decision to impose the condition on the record with record evidence that the condition of supervised release sought to be imposed is necessary to accomplish’ ” the goals of supervised release and “ ‘involves no greater deprivation" }, { "docid": "22131075", "title": "", "text": "whether Cope’s lifetime term of supervised release was reasonable. The parties disagree as to whether we should review the length of a term of supervised release for reasonableness, the standard we use when reviewing sentences, Reina-Rodriguez, 468 F.3d at 1158, or abuse of discretion, the standard we use when reviewing conditions of supervised release, Williams, 356 F.3d at 1052. Because the length of a term of supervised release is not a condition of that release, but instead is part of a defendant’s sentence, see Weber, 451 F.3d at 559; 18 U.S.C. § 3583(a), we review for reasonableness the district court’s decision to sentence Cope to a lifetime term of supervised release. See also United States v. Hayes, 445 F.3d 536, 537 (2d Cir.2006) (reviewing a lifetime term of supervised release for reasonableness). The district court’s statements, discussed above, demonstrate that the lifetime term is not greater than necessary, 18 U.S.C. § 3553(a), and is reasonable in light of the nature of Cope’s offense, id. § 3553(a)(1), his history of having a sexual interest in children as early as 1981 and as late as 2003, id., and the need to protect the public once Cope leaves prison, id. § 3553(a)(2)(C). The lifetime term is also reasonable in light of the “pertinent policy statement,” id. § 3553(a)(5), issued by the Sentencing Commission, which recommends the maximum term of supervised release for sex offenses, U.S.S.G. § 5D1.2(c). The Sentencing Guidelines’ definition of “sex offense” includes child pornography possession. United States v. Allison, 447 F.3d 402, 405 (5th Cir.2006); United States v. Kimler, 335 F.3d 1132, 1147 (10th Cir.2003); 18 U.S.C. § 2252A (statute is located in Chapter 110 of title 18, which falls under the definition). Accordingly, a lifetime term of supervised release for Cope is consistent with the policy statement’s recommendation. See 18 U.S.C. § 3583(k) (2003) (lifetime statutory maximum). Moreover, although their opinions do not necessarily render the sentence reasonable in this particular case, some of our sister circuits have held that life terms of supervised release are reasonable for those convicted of possession of child pornography. See Hayes, 445 F.3d" }, { "docid": "23365735", "title": "", "text": "the record alone, it follows that we do not reach the question of the substantive reasonableness of Collins’s conditions of release. We remand the determination of the substantive reasonableness of Condition 15 to the district court, as part of its reconsideration under 18 U.S.C. § 3553(a) for whether the residency restriction involves “a greater deprivation of liberty than is reasonably necessary.” Rudd, 662 F.3d at 1264 (quoting Daniels, 541 F.3d at 924). d. Constitutional Challenges to Condition 15 Collins raises a number of constitutional challenges to the restrictions posed by the lifetime term of supervised release containing Condition 15. Collins claims that Condition 15’s residency restriction is so overbroad and punitive that it violates four separate fundamental liberty interests: his right to interstate travel; intrastate travel; freedom of association; and freedom of assembly. Collins also claims that his fundamental right to acquire, own, possess and enjoy property is unconstitutionally abridged by Condition 15, because under the condition he must move whenever a restricted child-oriented establishment is opened within a 2,000-foot radius of his residence. Finally, he contends that the term constitutes excessive punishment prohibited by the Eighth Amendment. The Court need not address the constitutional arguments against Condition 15 at this time, having already decided to remand the supervised release portion of Collins’s sentence to the district court for reconsideration. The Court also leaves open, for now, the question of the constitutionality of the California Penal Code 3003.5(b) residency restriction for lower-risk defendants of Collins’s class, as that restriction was not objected to by Collins below, and the issue was not brought before the Court on appeal. IV. CONCLUSION For the foregoing reasons, Collins’s conviction is AFFIRMED. The portion of Collins’s sentence containing the lifetime term of supervised release is VACATED and REMANDED to the district court, with instructions for the court to consider all the required factors under 18 U.S.C. § 3553(a), and adequately articulate its rationale for imposing a term of supervised release with a duration and special conditions that are reasonable in light of the circumstances of this case and the goals of sentencing. . Collins was" } ]

[ { "docid": "6546238", "title": "", "text": "here involved are concerned, the new Act merely clarifies what was inchoate in the old. Therefore, this threshold question need not be resolved. Section 7 of the old Act (codified at Md. Corps. & Ass’ns Code Ann., Section 10-106(b)(l)(1975)) provided as follows: A limited partner shall not become liable as a general partner unless, in addition to the exercise of his rights and powers as a limited partner, he takes part in the control of the business. Some courts held that, under this section, a limited partner could not be held liable as a general partner unless he had led the plaintiff to believe that he was a general partner. See, e.g., Western Camps, Inc. v. Riverway Ranch Enterprises, 70 Cal.App.3d 714, 138 Cal.Rptr. 918 (1977); Outlet Co. v. Wade, 377 So.2d 722 (Fla.Dist.Ct.App.1979); Frigidaire Sales Corp. v. Union Properties, Inc., 88 Wash.2d 400, 562 P.2d 244 (1977) (en banc). These cases drew support from an official comment to Section 1 of the old Act that “no public policy requires a person who contributes to the capital of a business ... to become bound for the obligations of the business; provided creditors have no reason to believe that the times their credits were extended that such person was so bound.” At least one other court held, however, that reliance by the plaintiff was not an element of control under the old Act. See Delaney v. Fidelity Lease Ltd., 526 S.W.2d 543, 545 (Tex.1975). See generally Comment, Limited Partner Control and Liability under the Revised Uniform Limited Partnership Act, 32 Sw. L.J. 1301 (1979). Although undoubtedly in conflict with one another, these two dichotomous lines of authority can be explained by recognizing that the different courts had different focuses. Those which required reliance as an element of control were concentrating upon the external relationship between the plaintiff and the limited partner, and were concerned with the equities arising from that relationship. The Delaney Court, in contrast, appears to have been concerned about the broader public policy of requiring those who choose to accept the benefits of the limited partnership form to" } ]

[ { "docid": "15480106", "title": "", "text": "for which a claim can be made against the partners.”). Counts I, II, and IV contain causes of action seeking, in effect, to have limited partners and others held liable as general partners because the limited partners acted as general partners. Section 723(a) facially applies solely to general partners, but at least one court has held that § 723 is the vehicle through which limited partners who act as general partners may be held liable to a chapter 7 trustee, notwithstanding the application of state law. In In re The Ridge II, the trustee attempted, as the trustee is trying to do in this proceeding, to make limited partners generally liable because of the degree of control the limited partners exercised over the debtor partnership. The court there, while dismissing the trustee’s claims on the merits, analyzed the trustee’s evidence for making the limited partners generally liable under § 723(a) to satisfy any deficiency. In re The Ridge II, 158 B.R. at 1023-24. Even if § 723 were not available to the trustee in pursuing limited partners who have acted as general partners, the trustee may rely on the “strong arm” clause of Bankruptcy Code § 544. Clearly, a creditor of a limited partnership can make such claims against limited partners under state law, and § 544 clothes the trustee with such creditor’s powers. See Litchfield Co. of South Carolina Limited Partnership v. Anchor Bank (In re Litchfield Co. of South Carolina Limited Partnership), 135 B.R. 797, 803 n. 6 (W.D.N.C.1992) (Under South Carolina law assignee for benefit of creditors has right to enforce contributions from partners, and under “Code § 544(a)(1), the trustee stands in the shoes of such a person and thus can enforce such rights for the benefit of all creditors.”)- In either event, therefore, the trustee’s causes of action arise under the Code and constitute core proceedings. V. CONCLUSION The Second Circuit has construed BAFJA to grant to the bankruptcy courts final jurisdiction over core proceedings to the fullest extent constitutionally permitted. See In re Ben Cooper, 896 F.2d 1394, 1398 (2d Cir.) (adopting the First" }, { "docid": "15480096", "title": "", "text": "that four individual defendants, Herbert A. Sostek, Fred J. Boling, Jr., Richard H. Gibbs, and Randall L. Gibbs (together, the “individual defendants”) are shareholders, officers, and directors of WHCT and Astroline Inc. and are general and limited partners of Astroline. The complaint also names as defendants Carolyn H. Gibbs, Richard Goldstein, Edward A. Saxe, and Alan Tobin in their capacity as co-executors of the estate of Joel A. Gibbs (the “Estate”), which was, at relevant times, a stockholder in WHCT and Astroline Inc. and a limited partner in Astroline. The complaint contains four counts, each asserting a separate basis for the liability of certain of the defendants to satisfy the deficiency in the estate’s property to pay in full the debtor’s creditors (the “deficiency”). Count I asserts that Astroline, Astroline Inc., and the Roses (the limited partners of the debtor) are hable under Massachusetts limited partnership law as if they were general partners of the debtor because of the degree of management control they exercised over the debtor. Count I refers to Bankruptcy Code § 723 as a basis for recovery of the deficiency. Count II alleges that Astroline’s name was used by the debtor in such a way that creditors did not have actual knowledge that As-troline was not a general partner. Citing Massachusetts limited partnership law, the trustee contends this assertion makes Astro-line, Astroline Inc., and the individual defendants liable under § 723 as if they were general partners of the debtor. Count III seeks recovery under § 723 of the deficiency from the general partners of the debtor — WHCT, Hart, and Ramirez. Count IV asserts a cause of action whereby the trustee seeks to disregard the corporate form of WHCT and hold the shareholders, officers, and directors of WHCT directly liable for any deficiency for which WHCT would be liable under § 723 as a general partner of the debtor. This count seeks recovery from the individual defendants, the Estate, and Astroline as current or former shareholders, officers, and directors of WHCT. III. ARGUMENTS OF THE PARTIES The trustee and the movants have submitted briefs on" }, { "docid": "4086807", "title": "", "text": "a receiver has been appointed to maximize value only for the benefit of creditors, the rationales for these equitable defenses lose their meaning. Thus, no evidence regarding any pre-petition wrongful actions is material. When the EMC custodian filed this bankruptcy, the custodian-controlled corporation became the debtor in possession and stepped into the shoes of EMC. This plaintiff is now at least two levels removed from any wrongful actors who engaged in the Medicare fraud. In this suit, the debtor in possession is engaged in the collection of assets for distribution to creditors, not for its own benefit. Given that EMC was organized as a not-for-profit hospital, it seems unlikely that any potential creditors could be parties who were engaged in the Medicare fraud scheme. Nevertheless, should this be the case, the very equitable defenses asserted in this case and the equitable subordination of this category of creditors’ claims serve to ensure that these wrongful actors will not recover from the estate. Lastly, the plaintiff contends that, as a matter of law, Bainbridge Inc. is liable to the same extent as are Bainbridge L.P. and Braddock. Because Bainbridge L.P. is an Illinois limited partnership and Braddock is a California limited partnership, both California and Illinois law must be considered. The defendants only response to this assertion is found in a footnote, which asserts that any consideration of this argument is premature as the plaintiff is not entitled to summary judgment in the first place. Both states have adopted the Uniform Limited Partnership Act, which provides that, “a general partner of a limited partnership has the liabilities of a partner in a partnership without limited partners.” (805 ILCS § 210/403(b); Cal Corp Code § 15643(b)). Additionally, both states have adopted the Uniform Partnership Act, which holds partners in a general partnership jointly and severally liable for the debts and obligations of the partnership. See In re Keck, Mahin & Cate, 241 B.R. 583, 594 (Bankr.N.D.Ill.1999); see also City of San Diego v. DeLeeuw, 12 Cal.App.4th 10, 13, 15 Cal.Rptr.2d 98, 99 (Cal.App.1993). Both states hold general partners liable to creditors for the" }, { "docid": "10276943", "title": "", "text": "commit breach of fiduciary duty owed to the limited partners, or commit other torts in relation to running the partnerships, the limited partners are not entitled to file claims to recover such damages individually, that only the partnerships themselves have a cause of action for such mismanagement and other torts. This argument claims that under California state law (the 16 partnerships are California partnerships), “Any liability with respect to management of the Partnerships runs to each Partnership and not to the individual Limited Partners.” (Creditors’ Committee’s Supplemental Memorandum, p. 18) and that “As a general rule, a limited partner may not bring a lawsuit on behalf of a limited partnership.” (Creditors’ Committee’s Main Memorandum of Points and Authorities, p. 12). In short, Movant argues that the individual limited partners have no standing to bring suit against general partners who commit torts, that only the partnership can sue general partners committing torts, and that any recovery must go to the partnership, not to the individual limited partners. This argument states the general rule, but carefully overlooks the exception to the general rule applicable here. It is correct that under California law, one partner must ordinarily enforce its rights against others by an equitable suit for dissolution and accounting, rather than an action for damages. 9 B.E. Witkin, Summary of California Law Partnership § 34 (9th ed. 1989). However, California law recognizes several exceptions to this general rule. One of these exceptions, applicable here, is that a partner can bring an action for damages against another partner where the other partner is guilty of a tort, such as conversion of partnership assets. 9 B.E. Witkin, Summary of California Law Partnership § 36 (9th ed. 1989). California case law has long so held. Prince v. Harting, 177 Cal.App.2d 720, 736-36, 2 Cal.Rptr. 545, 554-55 (Cal.Dist.Ct.App.1960) (under California law, a partner may sue another partner for damages where the later partner has committed breach of fiduciary duty); Laughlin v. Haberfelde, 72 Cal.App.2d 780, 788-89, 165 P.2d 544 (Cal.Dist.Ct.App.1946) (recognizing that under California law, one partner can sue another directly for damages where the second" }, { "docid": "5699300", "title": "", "text": "others, the Court refused to ignore the limited partnership form when the opposing parties had had notice. Nothing in Garrett will provide a life jacket to the Laneys on this issue. Mrs. Laney also clings to Delaney v. Fidelity Lease Limited, 526 S.W.2d 543 (Tex. 1975). There, the Supreme Court of Texas, reversing the trial court’s grant of summary judgment, held that limited partners in a limited partnership who also were officers of a corporation that was a general partner could become liable as general partners by taking an active part in the corporation’s business. We point out that Mr. Laney is not a member of the limited partnership; Delaney is thus inapposite. In any ease, the Supreme Court’s statement, in dicta, that strict compliance with the limited partnership statute is necessary to avoid liability as a general partner, related to the requirement that a limited partner be a passive actor. It does not avail Mrs. Laney here, where she, as all concede, played no part in the affairs of the Corporation. Accordingly, we agree with the Tax Court that Mrs. Laney had effected a valid limited partnership in November 1971. III. Having concluded that Mrs. Laney was a limited partner in a valid limited partnership, we now confront the question whether, as to the limited partnership, the mort gage and other loans were recourse or non-recourse liabilities. The Tax Court held that the debts were recourse liabilities since the Corporation remained liable even after it transferred the property to the limited partnership. We warn at the outset against confusing personal liability of the Corporation with its ability to meet those obligations. Whether or not the Corporation had the means to pay off the loans is, legally, irrelevant. The question for our decision, simply put, is: did the Corporation’s personal liability on the notes operate to make the liabilities recourse liabilities of the limited partnership once the Corporation had become a general partner? Section 1.752-1 dictates an answer to this question, and that answer is yes. Facing the identical issue, the Tax Court in King-bay held that one of the" }, { "docid": "4086808", "title": "", "text": "to the same extent as are Bainbridge L.P. and Braddock. Because Bainbridge L.P. is an Illinois limited partnership and Braddock is a California limited partnership, both California and Illinois law must be considered. The defendants only response to this assertion is found in a footnote, which asserts that any consideration of this argument is premature as the plaintiff is not entitled to summary judgment in the first place. Both states have adopted the Uniform Limited Partnership Act, which provides that, “a general partner of a limited partnership has the liabilities of a partner in a partnership without limited partners.” (805 ILCS § 210/403(b); Cal Corp Code § 15643(b)). Additionally, both states have adopted the Uniform Partnership Act, which holds partners in a general partnership jointly and severally liable for the debts and obligations of the partnership. See In re Keck, Mahin & Cate, 241 B.R. 583, 594 (Bankr.N.D.Ill.1999); see also City of San Diego v. DeLeeuw, 12 Cal.App.4th 10, 13, 15 Cal.Rptr.2d 98, 99 (Cal.App.1993). Both states hold general partners liable to creditors for the debts of the limited partnerships. See Allen v. Amber Manor Apartments Partnership, 95 Ill.App.3d 541, 547, 51 Ill.Dec. 26, 420 N.E.2d 440, 445 (Ill.App.1981); see also Kazanjian v. Rancho Estates, Ltd., 235 Cal.App.3d 1621, 1 Cal.Rptr.2d 534 (Cal. App.1991). Therefore, Bainbridge Inc., as general partner of both Bainbridge L.P. and Braddock, is fully liable to EMC as a matter of law. Conclusion For the reasons discussed herein, no genuine issue of material fact is in dispute; and partial summary judgment on the question of liability is GRANTED in favor of the plaintiff for breach of fiduciary duty, breach of contract, and indemnification, with the only remaining issue on these three counts being the amount of damages. This Memorandum Opinion will serve as findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. A separate judgment will be entered pursuant to Federal Rule of Bankruptcy Procedure 9021. . The defendants cite to one case for this proposition in the body of their argument accompanied by additional citations in a footnote: In" }, { "docid": "6546237", "title": "", "text": "was executed, it would have been able to foreclose upon that deed of trust and recover $1,200,000 (the amount which Dominion Federal eventually recovered by way of foreclosure when the Partridge project failed.) All of these contentions raise disputed matters of fact. Therefore, whatever their merits may be, they cannot be resolved short of trial. FSLIC’S Claim Against MIW FSLIC contends that MIW has unlimited liability for Partridge Associates’ obligations because MIW took part in the control of the business of the partnership. Theoretically, a threshold question is presented whether this case is governed by the “old” Uniform Limited Partnership Act, which was in effect in Maryland when Partridge Associates was formed and which governed Partridge Associates at the time of the occurrence of the events giving rise to this action, or under the “new” Revised Uniform Limited Partnership Act, which became applicable to partnerships formed under the old Act on July 1, 1985. See Md. Corps. & Ass’ns Code Ann., Section 10-1104(2) (Michie Supp.1987). However, this Court believes that insofar as the statutory provisions here involved are concerned, the new Act merely clarifies what was inchoate in the old. Therefore, this threshold question need not be resolved. Section 7 of the old Act (codified at Md. Corps. & Ass’ns Code Ann., Section 10-106(b)(l)(1975)) provided as follows: A limited partner shall not become liable as a general partner unless, in addition to the exercise of his rights and powers as a limited partner, he takes part in the control of the business. Some courts held that, under this section, a limited partner could not be held liable as a general partner unless he had led the plaintiff to believe that he was a general partner. See, e.g., Western Camps, Inc. v. Riverway Ranch Enterprises, 70 Cal.App.3d 714, 138 Cal.Rptr. 918 (1977); Outlet Co. v. Wade, 377 So.2d 722 (Fla.Dist.Ct.App.1979); Frigidaire Sales Corp. v. Union Properties, Inc., 88 Wash.2d 400, 562 P.2d 244 (1977) (en banc). These cases drew support from an official comment to Section 1 of the old Act that “no public policy requires a person who contributes to" }, { "docid": "14807040", "title": "", "text": "limited partner should be likened to (and taxed the same way as) a corporate shareholder, as both risk only the capital they have chosen to put at stake. In contrast, a general partner has full personal liability for partnership debts. See Mass.Gen.Laws Ann. ch. 109, §§ 19(a), 24. Moreover, like a shareholder, a limited partner may not participate in the active management of the enterprise; indeed, if he should, he will lose his protected status and become fully liable as a general partner. See id. § 19(a); see also id. § 19(d). Mr. Unger also points out that the distinctions between general and limited partnerships can be dispositive. Courts have chosen, for example, to protect partnership assets from execution by judgment creditors of a limited partner, see Evans v. Galardi, 16 Cal.3d 300, 128 Cal.Rptr. 25, 546 P.2d 313 (1976) (in bank), and to ignore the citizenship of limited partners, but not that of general partners, in determining diversity jurisdiction, see Wroblewski v. Brucher, 550 F.Supp. 742, 751 (W.D.Okla.1982). Mr. Unger makes a number of valid observations about the intricacies and inconsistencies that exist in the law of partner ship as it has evolved in various jurisdictions, but he fails to provide any persuasive reason, based on either Massachusetts partnership law or the facts of this case, for us to disregard what has come to be viewed as settled law under the Tax Convention. In 1962, in Donroy, the Ninth Circuit was called upon to deal with an almost identical case. It involved Canadian corporations that were limited partners of two California partnerships whose principal offices were located in San Francisco. The court examined the relevant California partnership law and concluded that the aggregate theory was to be applied in determining whether the Canadian partners had a permanent establishment in the United States. It concluded that “the office or permanent establishment of the partnership is in law, the office of each of the partners — whether general or limited.” 301 F.2d at 207. The court also noted that “the United States and Canada look, not to the partnership as such," }, { "docid": "20311598", "title": "", "text": "limited partner, the limited partner participates in the control of the business. However, if the limited partner does participate in the control of the business, the limited partner is liable only to persons who transact business with the limited partnership reasonably believing, based on the limited partner's conduct, that the limited partner is a general partner. Id. at 499 (citations omitted). See also, As-shauer v. Wells Fargo Foothill, 263 S.W.3d 468 (Tex.App.-Dallas 2008) (same holding). Similarly, under Delaware’s limited partnership law, see Del.Code Ann. Tit. 6, § 17-303(a) (2008), a limited partner’s liability is limited to the amount of its investment. However, if the limited partner participates in the control of the limited partnership, it risks losing limited liability unless its activities fall within a statutory safe harbor. See id. § 17— 303(b)(l)-(10). If the safe harbor applies, the activities are deemed not to constitute participation in control. Id. And, under Delaware's General Partnership Act, § 17-403 (b), general partners always remain fully liable for the partnership's obligations. The Texas courts' analysis of the application of veil piercing theories like alter ego to limited partnerships makes sense. Given the similarity of the Texas and Delaware statutory schemes for limited partnerships, this Court concludes that the alter ego theory cannot be used to attempt to pierce the entity veil of Steadfast or Tikchik to reach their respective limited partners. However, the general part ner(s) of Steadfast and Tikchik are liable for that entity’s debts. . Kornman testified at trial that Defendant Ettman Trust owns 99% of Steadfast, as a limited partner, and that Defendant Korn-man Associates owns 1% of Steadfast. Testimony of Kornman (1/8/09) 63:23-64:23. In turn, the evidence at trial established that Kornman is the Trustee of Ettman Trust and a beneficiary of the trust, see id. at 14:17— 15:6; 85:22-86:14, and that Kornman owns 100% of the stock of Kornman Associates, which is the general partner of Steadfast. Id. at 54:12-13; Pretrial Order, Stipulation 44. It is not clear if Kornman is the only beneficiary of the Ettman Trust. Since Steadfast is a Delaware limited partnership, however, this Court" }, { "docid": "20917236", "title": "", "text": "estate to pay in full all claims which are allowed in a case under this chapter concerning a partnership and with respect to which a general partner of the partnership is personally liable, the trustee shall have a claim against such general partner for the full amount of the deficiency. 11 U.S.C. § 723(a) (emphasis added). The Code does not define or interpret “claims ... with respect to which a general partner of the partnership is personally liable,” nor is there a body of federal law on partnerships. Therefore, we must look to state law. In California, partnership law is contained in the California Corporations Code (“CCC”), under the Uniform Partnership Act at Section 15000 et seq. At § 15015, the CCC provides that “All partners are liable ... jointly and severally for everything chargeable to the partnership under Sections 15013 and 15014 ...” and “[¡jointly for all other debts and obligations of the partnership ...” Cal. Corp.Code Ann. § 15015 (West 1991). But, where a partner has not been with the partnership from inception, the CCC provides: A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission as though he had been a partner when such obligations were incurred, except that this liability shall be satisfied only out of partnership property. Cal.Corp.Code Ann. § 15017 (West 1991) (emphasis added). Yousif was substituted as the sole general partner in January 1989. Based on California law, debts which arose before his admission may be “satisfied only out of partnership property.” Id. Here, the partnership property has been fully liquidated and the only remaining asset is the trustee’s claim against the partners. Therefore, since the partnership property has been depleted, Yousif may only be held personally liable for the remaining estate claims which arose after he was admitted to the partnership. The trustee acknowledged that this sect’on of the CCC, and the lack of any bankruptcy cases dealing with our factual situation, tend to indicate Yousif should not be liable for the portion of the estate deficiency created by" }, { "docid": "9716743", "title": "", "text": "a transaction. In Pritchett, we held that limited partners were “at risk” under Section 465(b) for a partnership’s recourse debt even though the partners were not personally and directly liable to the creditors of the debt. Instead of focusing on the personal and direct liability aspect we asked who had the ultimate responsibility for the debt and examined the “substance” of the transaction, not its form. Pritchett, 827 F.2d at 647. The “economic reality” of the situation is the key factor in determining who is ultimately liable for a debt. Id., quoting Durkin v. Commissioner, 87 T.C. 1329, 1379 (1986). In Pritchett, we found the limited partners ultimately responsible for their partnership’s debt because they were contractually bound to make additional capital contributions when called upon to do so by general partners to compensate for any deficiency caused by failure to pay off the debt. Even though it was not known whether the general partners would make a cash call upon the limited partners, we held that the limited partners were at risk because the contract made the calls mandatory and “economic” reality ensured that the general partners would enforce their rights. Id. Although Pritchett and Durkin involved contractual obligations, we find no basis to distinguish those obligations from those derived from tort law. Neither are we persuaded that recovery under tort law is more risky than recovery under contract law. The risk of finding a solvent obligor is present under both theories of law. Further, the difficulty in dissolving limited partnerships is exaggerated although it is true that no contribution can be asked for until a partnership is dissolved. Stodd v. Goldberger, 73 Cal.App.3d 827, 837, 141 Cal.Rptr. 67, 73 (1977). Under Cal.Corp.Code. Section 15510(l)(c) (West 1977), a limited partner has the same rights as a general partner in dissolving a partnership by decree of the court. Under Sections 15032(l)(e) and (f) of the Cal.Corp. Code, a court is required to decree a dissolution whenever the business of the part nership can only be carried on at a loss or when other circumstances render a dissolution “equitable”. If Marcus" }, { "docid": "20311596", "title": "", "text": "entities are Delaware limited partnerships. It is unclear if the alter ego theory applies to limited partnerships in Delaware. The Court's research did not find a single case in Delaware in which the alter ego doctrine was applied to a limited partnership so as to hold its limited partners individually liable for the partnership’s debts. Of course, as a matter of partnership law, the general partner of a limited partnership is liable for the partnership's debts. As a matter of statutory law in Delaware, a limited partner is liable for the debts of the limited partnership where he or she participates in the control of the partnership and transacts business with parties who reasonably believe, based upon the limited partner’s conduct, that the limited partner is a general partner. Del. Code Ann. Tit. 6, § 17-303 (2008). Although not directly relevant, in Pinebrook Properties, Ltd. v. Brookhaven Lake Property Owners Assoc., 77 S.W.3d 487 (Tex.App.-Tex-arkana 2002), the court addressed the question of whether the alter ego theoty applied to a Texas limited partnership. In concluding that it did not, the court explained: The trial court erred in its application of law. The theory of alter ego, or piercing the corporate veil, is inapplicable to partnerships. Under traditional general partnership law, each partner is liable jointly and severally for the liabilities of the partnership. The Texas Legislature has altered this general scheme and statutorily created limited partnerships which are governed by [statute cites]. Under [the statute], 'a general partner of a limited partnership has the liabilities of a partner in a partnership without limited partners to persons other than the partnership and the other partners.’ Under the Texas Revised Partnership Act, 'all partners are liable jointly and severally for all debts and obligations of the partnership Therefore, in a limited partnership, the general partner is always liable for the debts and obligations of the partnership. Limited partners are not liable for the obligations of a limited partnership unless the limited partner is also a general partner or, in addition to the exercise of a limited partner’s rights and powers as a" }, { "docid": "15480105", "title": "", "text": "is not determinative on the core issue. See 28 U.S.C. § 157(b)(3) (“A 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.”). Proceedings whose basis lies within the Code may be considered core proceedings under the Marathon rationale because “when Congress creates a substantive federal right, it possesses substantial discretion to prescribe the manner in which that right may be adjudicated — including the assignment to an adjunct of some functions historically performed by [Article III] judges.” Marathon 458 U.S. at 80, 102 S.Ct. at 2876. See 11 U.S.C. § 541(a)(3) (property of the estate includes property the trustee recovers under § 723). Cf. Miller v. Spitz (In re CS Assocs.) (Spitz I), 156 B.R. 755, 758 (Bankr.E.D.Pa. 1993) (Unlike Code §§ 544, 545, 547, 548, and 553 which involve causes of action arising from prepetition actions, “a § 723 action cannot accrue until after a trustee has been appointed and determines that a deficiency in assets exists, for which a claim can be made against the partners.”). Counts I, II, and IV contain causes of action seeking, in effect, to have limited partners and others held liable as general partners because the limited partners acted as general partners. Section 723(a) facially applies solely to general partners, but at least one court has held that § 723 is the vehicle through which limited partners who act as general partners may be held liable to a chapter 7 trustee, notwithstanding the application of state law. In In re The Ridge II, the trustee attempted, as the trustee is trying to do in this proceeding, to make limited partners generally liable because of the degree of control the limited partners exercised over the debtor partnership. The court there, while dismissing the trustee’s claims on the merits, analyzed the trustee’s evidence for making the limited partners generally liable under § 723(a) to satisfy any deficiency. In re The Ridge II, 158 B.R. at 1023-24. Even if § 723 were not available to the trustee in pursuing" }, { "docid": "4757555", "title": "", "text": "unsecured claims total $25,000.00. In a chapter 7 proceeding, the trustee would liquidate the sole asset, pay the secured creditors, see 11 U.S.C. §§ 725, 726 and assert a $25,000.00 deficiency claim against the general partner, pursuant to § 723(a). Assume, though, that the general partner, during the course of the chapter 7 case, paid $10,-000.00 to the secured creditor, thereby reducing the secured claim to $90,000.00. Again, if the property were then sold and its full value achieved, the allowed secured claim would be paid in full, $10,000.00 would remain estate property after sale, and the deficiency would be only $15,-000.00. Thus, without allowance of any general partner claim, that partner has received full credit for his payment to the mortgagee. To also allow him a priority of $10,000.00 which would either be paid directly to him or which would be set-off against his § 723(a) liability would reduce the partner’s liability to $5,000.00. If one accepts the partners’ position, a general partner could easily reduce a $25,000.00 obligation to $5,000.00 simply by paying $10,000.00. In essence, then, the partners here seek double recovery for their payments made on behalf of the partnership on debts for which they were personally liable. Such attempts at double recovery have been denied by other courts, which have disallowed claims by individuals for payments made to reduce debts on which they were jointly liable or guarantors. See Matter of London, Inc. (payments made by debtor shareholders on mortgages which they had guaranteed disallowed as priority claim); Matter of Unclaimed Freight, Inc., 64 B.R. 435 (Bankr.M.D.Fla.1986) (payments made by debtor’s shareholder on lease for which he was guarantor was not entitled to priority status). See also In re Keegan Utility Contractors, Inc., 70 B.R. 87 (Bankr.W.D.N.Y.1987) (officer of debtor corporation who was sued on theory of joint liability for the debtor’s unpaid pension contribu tions may not assert priority claim for the expenses incurred in defending against the lawsuit). By preserving the partnership asset for sale, the general partners acted in their own self-interest, reduced debts for which they were jointly liable along with" }, { "docid": "15480097", "title": "", "text": "723 as a basis for recovery of the deficiency. Count II alleges that Astroline’s name was used by the debtor in such a way that creditors did not have actual knowledge that As-troline was not a general partner. Citing Massachusetts limited partnership law, the trustee contends this assertion makes Astro-line, Astroline Inc., and the individual defendants liable under § 723 as if they were general partners of the debtor. Count III seeks recovery under § 723 of the deficiency from the general partners of the debtor — WHCT, Hart, and Ramirez. Count IV asserts a cause of action whereby the trustee seeks to disregard the corporate form of WHCT and hold the shareholders, officers, and directors of WHCT directly liable for any deficiency for which WHCT would be liable under § 723 as a general partner of the debtor. This count seeks recovery from the individual defendants, the Estate, and Astroline as current or former shareholders, officers, and directors of WHCT. III. ARGUMENTS OF THE PARTIES The trustee and the movants have submitted briefs on the issue of whether Counts I, II, and IV of the complaint constitute core proceedings. The trustee initially argues that this proceeding is a core proceeding arising under the Bankruptcy Code because it is brought pursuant to § 723. Trustee’s Brief at 5-7. In the alternative, the trustee argues that this is a core proceeding arising in a case under the Bankruptcy Code because it concerns (a) the administration of the estate, (b) a proceeding to turn over property of the estate, or (c) the liquidation of the estate’s assets and the adjustment of the debtor-equity holder relationship. The movants argue that this proceeding, while related to the underlying bankruptcy case, is not a core proceeding arising under Code § 723 because § 723 states a cause of action only against general partners, not against limited partners or for piercing a corporate veil. The movants also dispute the trustee’s characterization of § 723 as an independent federal cause of action and argue instead that § 723 is merely an “enabling statute.” Movant’s Brief at 9-11." }, { "docid": "18782717", "title": "", "text": "trustee has a claim against the estate of each general partner in such partnership that is a debtor in a case under this title for the full amount of all claims of creditors allowed in the case concerning such partnership. Notwithstanding § 502 of this title, there shall not be allowed in such partner’s case a claim against such partner on which both such partner and such partnership are liable, except to any extent that such claim is secured only by property of such partner and not by property of such partnership. The claim of the trustee under this subsection is entitled to distribution in such partner’s case under § 726(a) of this title the same as any other claim of a kind specified in such section. (d) If the aggregate that the trustee recovers from the estates of general partners under subsection (c) of this section is greater than any deficiency not recovered under subsection (b) of this section, the court, after notice and a hearing, shall determine an equitable distribution of the surplus so recovered, and the trustee shall distribute such surplus to the estates of the general partners in such partnership according to such determination. These provisions clearly imply that the trustee of the partnership debtor must exhaust the assets of the partnership prior to seeking a claim against a general partner, or at least must determine with reasonable certainty that such a deficiency exists. In addition, under the provisions of § 103 of the Bankruptcy Code, Subchapters I & II of Chapter 7 of Title 11 apply only in a case under such chapter. Section 723 is a part of Subchapter II of Chapter 7 and is therefore inapplicable to a case pending under Chapter 11. The 1-37 Gulf Limited Partnership is a pending Chapter 11 case. Therefore, it is clear that Congress intend ed to exclude the operative effects of § 723 from a Chapter 11 case such as this one. In further support of its position that the general partners should be ordered to surrender their assets to the trustee, MBank cites §§ 28" }, { "docid": "12875748", "title": "", "text": "person” is one who “does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders-” Id,. § 101(14)(E). In re McKinney Ranch Associates, 62 B.R. 249 (Bankr.C.D.Cal.1986), the court held that an attorney representing both a debtor limited partnership and its general partner was not a “disinterested person” as a matter of law, explaining that a general partner “will always be a potential target of claims by a limited partnership debtor.” Id. at 255. The court reasoned that a general partner is often the fiduciary who made the day-to-day decisions that led the partnership into bankruptcy. Id. at 255. Therefore, explained the court, a general partner is vulnerable to charges of “breach of fiduciary duty or securities law violations.” Id. In addition, general partners may be defendants in actions to recover fraudulent or preferential transfers, and they may be exposed to personal liability resulting from guarantees of certain partnership debt. Id. Although the concerns raised by the court in McKinney Ranch are noted, we decline to follow McKinney Ranch and similar decisions for the simple reason that the Court of Appeals for the Fourth Circuit discourages the use of per se rules when evaluating disinterestedness, favoring instead a fact-intensive inquiry into the situation presented. See Harold & Williams Dev’t Co. v. United States Trustee (In re Harold & Williams Dev’t Co.), 977 F.2d 906, 909-10 (4th Cir.1992) (“Because the few absolute disqualifications Congress has established are carefully delineated and narrowly tailored, the courts must take care not to fashion absolute prohibitions beyond those legislatively mandated without some measure of assurance that the purposes of the Bankruptcy Code always will be served thereby.” (internal footnote omitted)). As for the facts at hand, the Partnership argues that it enjoyed an existence separate from Palumbo. It further maintains that its interests diverged from Palumbo’s when Palumbo provided the retainer to Akin Gump and guaranteed payment of the Partnership’s legal bills. The Partnership’s theory of the case may be summarized as follows: Palumbo became a “contingent creditor” of the Partnership when he" }, { "docid": "15480109", "title": "", "text": "timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11. A 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. 28 U.S.C. § 157(b)(3). . Massachusetts limited partnership law provides that if a limited partner participates in the control of the business ..., he is liable ... to persons who transact business with the limited partnership reasonably believing, based upon the limited partner's conduct, that the limited partner is a general partner. Mass.Gen.L. ch. 109, § 19(a). . Section 723 provides, in pertinent part: (a) If there is a deficiency of property of the estate to pay in full all claims which are al lowed in a case under this chapter concerning a partnership and with respect to which a general partner of the partnership is personally liable, the trustee shall have a claim against such general partner for the full amount of the deficiency. (b) To the extent practicable, the trustee shall first seek recovery of such deficiency from any general partner in such partnership that is not a debtor in a case under this title. Pending determination of such deficiency, the court may order any such partner to provide the estate with indemnity for, or assurance of payment of, any deficiency recoverable from such partner, or not to dispose of property. 11 U.S.C. § 723. . See Mass.Gen.L. ch. 109, § 19(d), which provides: A limited partner who knowingly permits his name to be used in the name of the limited partnership ... is liable to creditors who extend credit to the limited partnership without actual knowledge that the limited partner is not a general partner. . None of the other appearing defendants have submitted memoranda, and each of their answers to the complaint do not comply with the requirements of Fed.R.Bankr.P. 7012(b) (a responsive pleading shall admit or deny an allegation that the proceeding is core or non-core, and if claimed" }, { "docid": "20917235", "title": "", "text": "stipulated that only the following three issues remain: 1. Whether Yousif is liable to the trustee for claims incurred prior to his becoming general partner of the debtor; 2. Whether Yousif is entitled to an offset for the rents paid to HomeFed Bank in the sum of $58,650.00; and, 3.Determination of the amount of the deficiency for which Yousif is to be held liable. At the hearing on the motion this Court ruled that Yousif is liable for only those debts incurred by the partnership after he became general partner and he is not entitled to an offset for the rents paid to HomeFed Bank. Further, the Court limited the trustee’s fees for which Yousif is liable to a percentage based on the deficiency amount payable by Yousif. This opinion is issued for the purpose of discussing the effect of the ruling on the distribution of the recovered deficiency amount to the remaining creditors of the estate. DISCUSSION Section 723(a) of the Bankruptcy Code (“Code”) provides: If there is a deficiency of property of the estate to pay in full all claims which are allowed in a case under this chapter concerning a partnership and with respect to which a general partner of the partnership is personally liable, the trustee shall have a claim against such general partner for the full amount of the deficiency. 11 U.S.C. § 723(a) (emphasis added). The Code does not define or interpret “claims ... with respect to which a general partner of the partnership is personally liable,” nor is there a body of federal law on partnerships. Therefore, we must look to state law. In California, partnership law is contained in the California Corporations Code (“CCC”), under the Uniform Partnership Act at Section 15000 et seq. At § 15015, the CCC provides that “All partners are liable ... jointly and severally for everything chargeable to the partnership under Sections 15013 and 15014 ...” and “[¡jointly for all other debts and obligations of the partnership ...” Cal. Corp.Code Ann. § 15015 (West 1991). But, where a partner has not been with the partnership from inception," }, { "docid": "18782718", "title": "", "text": "so recovered, and the trustee shall distribute such surplus to the estates of the general partners in such partnership according to such determination. These provisions clearly imply that the trustee of the partnership debtor must exhaust the assets of the partnership prior to seeking a claim against a general partner, or at least must determine with reasonable certainty that such a deficiency exists. In addition, under the provisions of § 103 of the Bankruptcy Code, Subchapters I & II of Chapter 7 of Title 11 apply only in a case under such chapter. Section 723 is a part of Subchapter II of Chapter 7 and is therefore inapplicable to a case pending under Chapter 11. The 1-37 Gulf Limited Partnership is a pending Chapter 11 case. Therefore, it is clear that Congress intend ed to exclude the operative effects of § 723 from a Chapter 11 case such as this one. In further support of its position that the general partners should be ordered to surrender their assets to the trustee, MBank cites §§ 28 and 40 of article 6132b of the Texas Uniform Partnership Act. I fail to find support in the cited sections for MBank’s argument. While MBank quotes § 40 as defining the assets of a partnership to include: “The contribution of the partners necessary for the payment of all liabilities owing to creditors other than partners,” a close reading reveals that § 40 applies to the settling of accounts between partners. This is not the situation in the case at bar. Neither is § 28 applicable. While it permits a Court to charge the interest of a debtor partner with payment of an unsatisfied amount of judgment debt, the charging order is only for judgment creditors of an individual partner. See comment following Tex.Rev.Civ.Stat.Ann. art. 6132b-28 (Vernon). Since § 723 would be available in a liquidating bankruptcy (i.e. Chapter 7) and therefore the assets of the general partners could be reached by the liquidating trustee to satisfy any deficiency in payment of the debts of the partnership, it seems clear to this Court that if all" } ]

[ { "docid": "22750552", "title": "", "text": "moral imperative. They were well aware of the corrosive impact employment discrimination has on its victims, and on society generally. They sought, therefore, “to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens”; McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800 (1973); see also Griggs v. Duke Power Co., 401 U. S., at 429-431; Alexander v. Gardner-Denver Co., 415 U. S. 36, 44 (1974); and “to make persons whole for injuries suffered on account of unlawful employment discrimination,” Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975). In short, Congress wanted to enable black workers to assume their rightful place in society. It is, of course, true that Congress was not willing to invalidate seniority systems on a wholesale basis in pursuit of that goal. But the United States, as the plaintiff suing on behalf of the incumbent minority group employees here, does not seek to overturn petitioners’ seniority system. It seeks only to have the “time actually worked in [minority group] jobs [recognized] as the equal of [the majority group’s] time,” Local 189, United Papermakers & Paperworkers v. United States, 416 F. 2d, at 995, within the existing seniority system. Admittedly, such recognition would impinge on the seniority expectations white employees had developed prior to the effective date of the Act. But in enacting Title VII, Congress manifested a willingness to do precisely that. For example, the Clark-Case Interpretive Memorandum, see n. 6, supra, makes clear that Title VII prohibits unions and employers from using discriminatory waiting lists, developed prior to the effective date of the Title, in making selections for jobs or training programs after that date. 110 Cong. Rec. 7213 (1964). Such a prohibition necessarily would disrupt the expectations of those on the lists. More generally, the very fact that Congress made Title VII effective shortly after its enactment demonstrates that expectations developed prior to passage of the Act were not considered sacrosanct, since Title VII’s general ban on employment discrimination inevitably interfered with the pre-existing expectations of whites who anticipated benefiting from" } ]

[ { "docid": "23355424", "title": "", "text": "has been noted by several courts. See Telephone Workers Union of New Jersey Local 827 v. New Jersey Bell Telephone, 450 F.Supp. 284, 298 (D.N.J.1977), aff’d., 584 F.2d 31 (1978); Dennison, 658 F.2d at 695-6; Hunter v. St. Louis-San Francisco Ry. Co., 639 F.2d 424, 425 n.2 (8th Cir. 1981). See also Alexandria, 614 F.2d at 1366. The proposed intervenors contend that this potential double liability is necessary to ensure that an employer bears the full price of its past wrongdoing. Permitting double liability in this situation would clearly maintain the status quo. At a minimum, double liability would so escalate the cost of affirmative action that an employer’s ability to implement an affirmative action plan would be severely crippled. As a result, affirmative action would be unpractically expensive. It is unfortunate that the City engaged in the employment practices which precipitated the decree. However, non-minorities benefitted from, practiced, and acquiesced in those practices. The 1980 Decree is a reasonable means to correct the adverse effects which minorities shouldered as a result of those employment practices. The decree does not adversely affect any legally protected interest of non-minorities. The proposed intervenors apparently agree that some action must be taken to ensure that discrimination does not prevent minorities from receiving a fair share of the economic opportunities available. They disagree, however, on the means selected to accomplish this end. The proposed intervenors assert that non-minorities are unhappy with the promotion section of the 1980 Decree. This temporary measure only partially realigns promotional expectations to reflect minority employment levels which would have occurred absent the discrimination. This realignment vindicates a societal interest in remedying the effects of racial and more than justifies the displeasure some non-minorities may experience. Moreover, the proposed intervenors disregard the fact that minorities may also be dissatisfied with the temporary relief afforded by the 1980 Decree. In fact, minorities may be less than totally satisfied that the remedial provisions of the decrees are adequate compensation for the many opportunities foreclosed to them for decades. The dissatisfaction which non-minorities and minorities may experience is inherent in the compromise which" }, { "docid": "22394588", "title": "", "text": "years is not unreasonable in light of the demonstrated history of racial discrimination in promotions in the City of Cleveland Fire Department. It is neither unreasonable nor unfair to require non-minority firefighters who, although they committed no wrong, benefited from the effects of the discrimination to bear some of the burden of the remedy. Furthermore, the amended proposal is more reasonable and less burdensome than the nine-year plan that had been proposed originally.” Id., at A5. The Judge therefore overruled the Union’s objection and adopted the consent decree “as a fair, reasonable, and adequate resolution of the claims raised in this action.” Ibid. The District Court retained exclusive jurisdiction for “all purposes of enforcement, modification, or amendment of th[e] Decree upon the application of any party . . . .” App. to Pet. for Cert. A38. The Union appealed the overruling of its objections. A panel for the Court of Appeals for the Sixth Circuit affirmed, one judge dissenting. Vanguards of Cleveland v. City of Cleveland, 753 F. 2d 479 (1985). The court rejected the Union’s claim that the use of race-conscious relief was “unreasonable,” finding such relief justified by the statistical evidence presented to the District Court and the City’s express admission that it had engaged in discrimination. The court also found that the consent decree was “fair and reasonable to non-minority firefighters,” emphasizing the “relatively modest goals set forth in the plan,” the fact that “the plan does not require the hiring of unqualified minority firefighters or the discharge of any non-minority firefighters,” the fact that the plan “does not create an absolute bar to the advancement of non-minority employees,” and the short duration of the plan. Id., at 485. After oral argument before the Court of Appeals, this Court decided Firefighters v. Stotts, 467 U. S. 561 (1984). “Concerned with the potential impact of Stotts,” the Court of Appeals ordered the parties to submit supplemental briefs, 753 F. 2d, at 485-486, but ultimately concluded that Stotts did not affect the outcome of the case. The court noted that the District Court in Stotts had issued an injunction" }, { "docid": "22265636", "title": "", "text": "decree to those affected, the adequacy of the settlement to the class, and the public interest. The decree must be fair and reasonable to those it affects. See Stotts, 679 F.2d at 552; Airline Stewards and Stewardesses, 573 F.2d at 964. A consent decree may not embody affirmative relief provisions unless the employer has utilized minorities at a rate less than their proportion in the relevant labor market. See Stotts, 679 F.2d at 552; United Steelworkers v. Weber, 443 U.S. 193, 203, 99 S.Ct. 2721, 2727, 61 L.Ed.2d 480 (1979). This identifiable statistical disparity, however, need not be so great as to constitute a prima facie case of discrimination. See Stotts, 679 F.2d at 552 n. 10; Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.1981). The decree must be temporary in nature and terminate when the under-utilization of minorities has been corrected. See Stotts, 679 F.2d at 553. Valentine v. Smith, 654 F.2d 503, 510-11 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981); Detroit Police Officers Ass’n, 608 F.2d 671 at 694-98 (6th Cir.1979); Setser, 657 F.2d at 968-69. The decree also cannot bar absolutely the advancement of qualified persons, or require the discharge of non-minority workers and the replacement with minorities. Id. Affirmative provisions which seek “the same racial proportion among employees as in the labor force will ordinarily be reasonable.” See Detroit Police Officers Ass’n, 608 F.2d at 696; Stotts, 679 F.2d at 553. A simple reduction in non-minority “expectations” does not necessarily make a consent decree unfair and unreasonable. The affirmative relief provisions of any consent decree will undoubtedly diminish the expectation of non-minorities. Non-minority expectations are based on the employer’s pre-decree employment practices which have caused the under-utilization of minorities the decree is designed to correct. See Stotts, 679 F.2d at 556. Therefore, it is impossible not to adversely affect non-minority expectations and simultaneously correct the under-utilization of minorities. In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977), the Supreme Court stated" }, { "docid": "22265635", "title": "", "text": "23 (1st Cir.1980); City of Miami, 614 F.2d at 1331-34; Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). The ultimate issue the court must decide at the conclusion of the hearing is whether the decree is fair, adequate and reasonable. Id. The Court has no occasion to determine the merits of the controversy or the factual underpinning of the legal authorities advanced by the parties. See Carson, 450 U.S. at 88 n. 14, 101 S.Ct. at 998 n. 14; Stotts, 679 F.2d at 552; Jackson, 519 F.2d at 1151-52. If the court determines that the decree is problematic, it should inform the parties of its precise concerns and give them an opportunity to reach a reasonable accommodation. See Stotts, 679 F.2d at 554; Miami, 614 F.2d at 1332. The court should articulate its “principled reasons” for rejecting a decree if the accommodation is not satisfactory. See Stotts, 679 F.2d at 554; Miami, 614 F.2d at 1333. In making the reasonableness determination the court is under the mandatory duty to consider the fairness of the decree to those affected, the adequacy of the settlement to the class, and the public interest. The decree must be fair and reasonable to those it affects. See Stotts, 679 F.2d at 552; Airline Stewards and Stewardesses, 573 F.2d at 964. A consent decree may not embody affirmative relief provisions unless the employer has utilized minorities at a rate less than their proportion in the relevant labor market. See Stotts, 679 F.2d at 552; United Steelworkers v. Weber, 443 U.S. 193, 203, 99 S.Ct. 2721, 2727, 61 L.Ed.2d 480 (1979). This identifiable statistical disparity, however, need not be so great as to constitute a prima facie case of discrimination. See Stotts, 679 F.2d at 552 n. 10; Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.1981). The decree must be temporary in nature and terminate when the under-utilization of minorities has been corrected. See Stotts, 679 F.2d at 553. Valentine v. Smith, 654 F.2d 503, 510-11 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981); Detroit Police Officers" }, { "docid": "23355425", "title": "", "text": "practices. The decree does not adversely affect any legally protected interest of non-minorities. The proposed intervenors apparently agree that some action must be taken to ensure that discrimination does not prevent minorities from receiving a fair share of the economic opportunities available. They disagree, however, on the means selected to accomplish this end. The proposed intervenors assert that non-minorities are unhappy with the promotion section of the 1980 Decree. This temporary measure only partially realigns promotional expectations to reflect minority employment levels which would have occurred absent the discrimination. This realignment vindicates a societal interest in remedying the effects of racial and more than justifies the displeasure some non-minorities may experience. Moreover, the proposed intervenors disregard the fact that minorities may also be dissatisfied with the temporary relief afforded by the 1980 Decree. In fact, minorities may be less than totally satisfied that the remedial provisions of the decrees are adequate compensation for the many opportunities foreclosed to them for decades. The dissatisfaction which non-minorities and minorities may experience is inherent in the compromise which the 1980 Decree represents. A consent decree reached after negotiation and consultation is the preferred means of balancing the conflicting societal and individual interests inherent in any employment discrimination action. The only alternative to a consent decree is a costly and lengthy trial which would only confront the court with the difficult question of how much affirmative action must be imposed to correct the effects of past employment discrimination. III. THE PRELIMINARY INJUNCTION On May 4, 1981, the City announced that an unanticipated economic crisis required the layoff of certain personnel in nonessential services. The proposed layoffs were unprecedented in the City’s history. The affirmative relief accomplished under the decrees would be severely eroded by the proposed layoff policy. Subsequently, the court granted an injunction preventing the City from applying the layoff policy in a manner which would reduce the percentage of minority employees in each job classification below that which existed before the layoffs were announced. The City and the Union brought this appeal. We must weigh whether the plaintiffs have shown a strong" }, { "docid": "23355385", "title": "", "text": "Fire Department would have been devastated by the proposed layoffs. Plaintiff Stotts filed a motion to restrain the City of Memphis from implementing the layoff proposal in a manner which affected minority firemen. The district court found that the proposed layoffs were an unanticipated change in circumstance not contemplated by the consent decrees. Accordingly, the court modified the decrees and enjoined the proposed layoffs and demotions of minority firemen. We affirm. I. FACTS In 1974, the United States Department of Justice (“Government”) instituted an action against the City of Memphis (“City”) under Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, the Fourteenth Amend ment, and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 1221 et seq. The complaint alleged that the Fire Department and various other City divisions had engaged in a pattern or practice of race and sex discrimination in hiring and promotions. The City initially denied the allegations. Later in 1974, however, it agreed to settle the litigation with a consent decree (“1974 Decree”). The motivation for the 1974 Decree was the desire to remedy past discrimination and avoid the delay and expense of further litigation. In the decree, the City did not admit to any misconduct. The City did acknowledge, however, that its employment practices may create an inference of racial and sexual discrimination. The purpose of the 1974 Decree is to remedy any disadvantage to blacks and women which may have resulted from past discrimination. Subject only to the availability of qualified applicants, the City agreed to undertake the “goal of achieving throughout the work force proportions of minority and female employees in each job classification approximating their respective proportions in the civilian labor force.” The decree established interim hiring goals for each of the City’s divisions. The interim goal affecting the Fire Department required that minority employment in the uniformed positions increase by 5% before July of 1976. The decree also required the City to “engage in affirmative recruitment activities consistent with their obligation to take all reasonable steps to reach the goals set forth” in the" }, { "docid": "23355410", "title": "", "text": "1362. In the instant case, all pretrial discovery had been completed. Thus, counsel and the court were in an excellent position to assess the relative strengths of each litigant’s case. The parties agreed to the terms of the 1980 Decree. The court found that there was no evidence of collusion, stating “no parroting” had occurred throughout the pretrial period. The 1980 Decree represents a reasonable compromise of their competing interests. The City relinquished no more control over its personnel decisions than was absolutely necessary to avoid a trial on the merits. Plaintiffs did not agree to the decree until it became apparent that they had obtained substantially all they could have obtained, given the risks of litigation. The adequacy of the 1980 Decree can be assessed by considering the statistical evidence of discrimination in the record. This statistical evidence, is sufficient to create a strong prima facie case of racial discrimination. In fact, the trial court thought that the evidence was so compelling that it could take judicial notice of the discriminatory employment practices of the City. Minorities were excluded from meaningful participation in the Memphis Fire Department for decades. The goals embodied in the decree are reasonable. However, the goals are merely an adequate response to the gross underutilization of minorities within the Fire Department. The promotion and hiring goals embodied within the 1980 Decree supplement the relief provided in the 1974 Decree. The 1974 Decree contemplated the imposition of these goals if the utilization of minorities was not substantially increased. This contingency in the 1974 Decree is an additional factor enhancing the reasonableness of the 1980 Decree. Significantly, no class mem ber objected to the terms of the 1980 Decree. The court also considered the interests of non-minorities. The affirmative action provisions of the 1980 Decree do diminish the promotional expectations of non-minorities. A simple reduction in the “expectations” does not, however, necessarily make a consent decree unreasonable. For example, in Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480, the expectations of non-minorities were adversely affected, yet the affirmative action plan was legal. In the instant" }, { "docid": "22394589", "title": "", "text": "Union’s claim that the use of race-conscious relief was “unreasonable,” finding such relief justified by the statistical evidence presented to the District Court and the City’s express admission that it had engaged in discrimination. The court also found that the consent decree was “fair and reasonable to non-minority firefighters,” emphasizing the “relatively modest goals set forth in the plan,” the fact that “the plan does not require the hiring of unqualified minority firefighters or the discharge of any non-minority firefighters,” the fact that the plan “does not create an absolute bar to the advancement of non-minority employees,” and the short duration of the plan. Id., at 485. After oral argument before the Court of Appeals, this Court decided Firefighters v. Stotts, 467 U. S. 561 (1984). “Concerned with the potential impact of Stotts,” the Court of Appeals ordered the parties to submit supplemental briefs, 753 F. 2d, at 485-486, but ultimately concluded that Stotts did not affect the outcome of the case. The court noted that the District Court in Stotts had issued an injunction requiring layoffs over the objection of the City, while in this case the City of Cleveland had agreed to the plan. The court reasoned that even if Stotts holds that Title VII limits relief to those who have been actual victims of discrimination, “[t]he fact that this case involves a consent decree and not an injunction makes the legal basis of the Stotts decision inapplicable.” 753 F. 2d, at 486. Local 93 petitioned this Court for a writ of certiorari. The sole issue raised by the petition is whether the consent decree is an impermissible remedy under § 706(g) of Title VII. Local 93 argues that the consent decree disregards the express prohibition of the last sentence of § 706(g) that “[n]o order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment" }, { "docid": "22265644", "title": "", "text": "superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. 608 F.2d at 695-96. Accord Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982); Stotts, 679 F.2d at 553; NAACP v. Allen, 493 F.2d 614, 621 (5th Cir.1974); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333, 1341 (2d Cir.1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 896-97 (C.D.Cal.1976) III. In the present case, the Final Decree is attacked on two grounds. It is argued first that the number of promotions granted minorities is excessive. It is next argued that the decree mandates the promotion of unqualified individuals. See Stotts, 679 F.2d at 553. For the reasons which follow, each of these contentions is without merit. The number of promotions called for in the decree is a reasonable, yet conservative response to the stark exclusion of minorities from meaningful participation in the Youngstown Police Department. In 1976, minorities represented over twenty-five percent of Youngstown’s population, but less than eight percent of the city’s police force. Virtually all of the minority policemen held the lowest rank in the department; they were patrolmen. On the day the action was filed the highest ranking Black was merely a sergeant. Moreover, no minority had been promoted in the police department for well over a dozen years, Given these employment practices, the affirmative provisions of the Final Decree are a very conservative response to the gross under-utilization of minorities. As this Court stated in Stotts, specific race-con-seious hiring and promotion goals may be appropriate elements of consent decrees where the under-utilization of minorities is particularly great. See, e.g., Vulcan Society of Westchester City v. Fire Department of the City of White Plains, 505 F.Supp. 955 (S.D.N.Y.1981) (temporary fifty percent hiring ratio reasonable where minority representation in population is sixteen percent and workforce representation is only four percent); Dennison v. City of Los Angeles Department" }, { "docid": "21721790", "title": "", "text": "promotions, and, perforce, no specific victims of promotion discrimination have been identified, the appellants contend that the district court erred in granting plaintiffs’ motion to enforce the consent decrees. Having carefully reviewed the Stotts decision and cases interpreting it, we conclude that appellants read Stotts too broadly. The Stotts case arose out of a class action filed in 1977 by black employees of the Memphis, Tennessee fire department. Plaintiffs charged that the fire department engaged in a pattern or practice of making hiring and promotion decisions on the basis of race, in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. Stotts, 104 S.Ct. at 2581. Prior to trial, the case was settled by a consent decree wherein the fire department agreed' to promote certain individual firefighters, and also agreed to eventually increase minority representation in all job classifications to reflect the proportion of blacks in the relevant labor force. Toward this end, interim hiring and promotional percentage goals were established. The defendant did not, however, admit that any allegation in plaintiffs’ complaint was true, nor did the consent decree mention what would happen in the event of layoffs. Id. A little more than a year after the consent decree was entered, the City announced that fiscal problems necessitated a reduction in non-essential personnel. Lay offs were to be made according to the “last hired, first fired” rule of the city-wide seniority system. Plaintiffs sought relief in the district court to protect the advances by blacks made since the entry of the consent decree. Because the court found that the City’s seniority system was not bona fide, and that the proposed layoffs would have a racially discriminatory effect on blacks, it enjoined the City from applying the “last hired, first fired” rule to the extent that it would decrease the percentage of blacks then employed in certain job classifications. Id. at 2582. On appeal, the Sixth Circuit affirmed even though it disagreed with the district court’s finding that the seniority system was not bona fide. 679 F.2d 541, 551 n. 6 (6th" }, { "docid": "23374879", "title": "", "text": "the nature of the intervenor’s interest. See Boston Tow Boat Co. v. United States, 321 U.S. 632, 64 S.Ct. 776, 88 L.Ed. 975 (1944); Airline Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra, 573 F.2d at 964; Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., supra, 556 F.2d at 173; see also Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L.Rev. 721, 727 (1968) [hereinafter Shapiro]. Non-minorities do not have a legally protected interest in the mere expectation of appointments which could only be made pursuant to presumptively discriminatory employment practices. See Franks v. Bowman Transportation Co., 424 U.S. 747, 775-78, 96 S.Ct. 1251, 1269-1270, 47 L.Ed.2d 444 (1976); Stotts II, supra, 679 F.2d at 583-84 & n. 3; Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., supra, 556 F.2d at 173. Accordingly, the legal rights of non-minorities generally are not adversely affected by reasonable and lawful race-conscious hiring or promotional remedies, whether such remedies are imposed by court order following litigation on the merits or are created by voluntary agreement between the parties. See Stotts II, supra, 679 F.2d at 583; Stotts v. Memphis Fire Department, 679 F.2d 541, 554, 556, 558 (6th Cir.1982), cert. granted, — U.S. —, 103 S.Ct. 2451, 77 L.Ed.2d 1331 (1983) (“Stotts F); Setser v. Novack Investment Co., 657 F.2d 962, 970 (8th Cir.1981) (en banc); Prate v. Freedman, 583 F.2d 42, 47 (2d Cir.1978); Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., supra, 556 F.2d at 173. It follows, therefore, that although non-minority third parties allowed to intervene in cases which involve consent decrees or settlement agreements implementing race-conscious hiring or promotional remedies do have a sufficient interest to argue that the decree or agreement is unreasonable or unlawful, their interest in the expectation of appointment does not require their consent as a condition to any voluntary compromise of the litigation. See Airline Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra, 573 F.2d at 964; Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., supra, 556" }, { "docid": "23355411", "title": "", "text": "the City. Minorities were excluded from meaningful participation in the Memphis Fire Department for decades. The goals embodied in the decree are reasonable. However, the goals are merely an adequate response to the gross underutilization of minorities within the Fire Department. The promotion and hiring goals embodied within the 1980 Decree supplement the relief provided in the 1974 Decree. The 1974 Decree contemplated the imposition of these goals if the utilization of minorities was not substantially increased. This contingency in the 1974 Decree is an additional factor enhancing the reasonableness of the 1980 Decree. Significantly, no class mem ber objected to the terms of the 1980 Decree. The court also considered the interests of non-minorities. The affirmative action provisions of the 1980 Decree do diminish the promotional expectations of non-minorities. A simple reduction in the “expectations” does not, however, necessarily make a consent decree unreasonable. For example, in Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480, the expectations of non-minorities were adversely affected, yet the affirmative action plan was legal. In the instant case, the harm suffered by incumbent non-minority employees because of the promotional goal is de minimus. Many minorities would have been promoted even absent the consent decree. In fact, absent discrimination, the minority promotion rate should approximate the percentage of minorities in the community. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n.20, 97 S.Ct. 1843, 1856 n.20, 52 L.Ed.2d 396 (1977); Detroit Police Officers Assoc., 608 F.2d at 696-97. Minorities represent 35% of the Memphis Community, therefore, over the long-run the minority promotion rate should exceed the 20% promotion ratio in the 1980 Decree. Viewed in this light, the promotion ratio in the 1980 Decree is a floor and not a ceiling on minority promotions. The consent decree embodies a minority promotion ratio which is less than the 35% minority promotion ratio which presumptively would be the norm absent the City’s past employment practices. Non-minorities allege the 1980 Decree’s 20% promotion goal unduly interferes with their expectation of promotion. It appears, however, that the expectation of non-minorities is based upon" }, { "docid": "22265643", "title": "", "text": "3145, 57 L.Ed.2d 1161 (1978). A decree which requires that individual considerations of race be an important factor in personnel decisions may also serve the public interest. Several courts have emphasized that the attainment of racial diversity, particularly in supervisory ranks, is a legitimate interest an employer may pursue. Such diversity will, in the long run, enhance public confidence and productivity as employees recognize that their efforts will be rewarded. The rewards of attaining racial diversity in the workplace are particularly great where the employer is a governmental entity. In Detroit Police Officers Ass’n, supra, Judge Lively, speaking for the Court, explained the benefits of a multi-racial urban police department thusly: The argument that police need more minority officers is not simply that blacks communicate better with blacks, or that a police department should eater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support .and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. 608 F.2d at 695-96. Accord Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982); Stotts, 679 F.2d at 553; NAACP v. Allen, 493 F.2d 614, 621 (5th Cir.1974); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333, 1341 (2d Cir.1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 896-97 (C.D.Cal.1976) III. In the present case, the Final Decree is attacked on two grounds. It is argued first that the number of promotions granted minorities is excessive. It is next argued that the decree mandates the promotion of unqualified individuals. See Stotts, 679 F.2d at 553. For the reasons which follow, each of these contentions is without merit. The number of promotions called for in the decree is a reasonable, yet conservative response to the stark" }, { "docid": "22265638", "title": "", "text": "that absent discrimination, the minority utilization should approximate the percentage of minorities in the community. It is not unreasonable for non-minorities’ expectations to be reduced to accommodate a level of minority participation which would have occurred absent discrimination. Stotts, 679 F.2d at 556. In assessing the fairness of the decree the court should be aware of the practical observation made in Stotts: An employer, such as the City, is unlikely to have an over-compromising attitude toward affirmative action. Employers recognize, as does the dissent, that an inequitable or overly zealous affirmative action plan may create racial tension in the workplace. The presence of this tension may create dissension and a general non-productive work climate. This unfortunate, but real, potential for non-minority backlash is a potent disincentive which restrains employers from agreeing to “too” sweeping affirmative action. However, it is doubtful that this backlash is any less counter-productive than that created by perpetual discriminatory employment policies. More significantly, such considerations cannot justify failure to sustain an otherwise reasonable consent decree. 679 F.2d at 555 n. 12. The court must also evaluate the adequacy of the decree “by weighing the plaintiff’s likelihood of success on the merits against the amount and form of the relief offered in the settlement.” Carson, 450 U.S. at 88 n. 14, 101 S.Ct. at 998 n. 14. See, e.g., United States v. Trucking Employers, Inc., 561 F.2d 313, 317 (D.C.Cir. 1977); Stotts, 679 F.2d at 552; Airline Stewards and Stewardesses, 573 F.2d at 964; Plummer, 668 F.2d at 660. A court may not withhold approval simply because the benefits accrued from the decree are not what a successful plaintiff would have received in a fully litigated case. See Trucking Employers, Inc., 561 F.2d at 317. A decree is a compromise which has been reached after the risks, expense, and delay of further litigation have been assessed. See, e.g., Stotts, 679 F.2d at 557; Moore, 615 F.2d at 1271; Luevano v. Campbell, 93 F.R.D. 68, 86 (D.C.1981). Class counsel and the class representatives may compromise their demand for relief in order to obtain substantial assured relief for the" }, { "docid": "22265645", "title": "", "text": "exclusion of minorities from meaningful participation in the Youngstown Police Department. In 1976, minorities represented over twenty-five percent of Youngstown’s population, but less than eight percent of the city’s police force. Virtually all of the minority policemen held the lowest rank in the department; they were patrolmen. On the day the action was filed the highest ranking Black was merely a sergeant. Moreover, no minority had been promoted in the police department for well over a dozen years, Given these employment practices, the affirmative provisions of the Final Decree are a very conservative response to the gross under-utilization of minorities. As this Court stated in Stotts, specific race-con-seious hiring and promotion goals may be appropriate elements of consent decrees where the under-utilization of minorities is particularly great. See, e.g., Vulcan Society of Westchester City v. Fire Department of the City of White Plains, 505 F.Supp. 955 (S.D.N.Y.1981) (temporary fifty percent hiring ratio reasonable where minority representation in population is sixteen percent and workforce representation is only four percent); Dennison v. City of Los Angeles Department of Water and Power, 658 F.2d 694, 695 (9th Cir.1981) (a decree which awards fifty percent of all hiring and promotion opportunities to qualified minorities is reasonable); Baker v. City of Detroit, 504 F.Supp. 841 (E.D.Mich.1980) (fifty percent promotion ratio is reasonable). Moreover, arguments that the final decree mandates the promotion of “unqualified persons” is based on a faulty premise. Since the promotion examinations the City has administered are presumptively discriminatory and not job-related, see 29 C.F.R. § 2697.4(D), they can hardly be probative evidence that the minorities who failed are any less “qualified” than the non-minorities who passed, All policemen have a legitimate expectation to be promoted on the basis of their qualifications. Correspondingly, the City bas a resPonsibility to promote only qualified, candidates. Ranking candidates ac-cording to their performance on a non-job related examination does not necessarily result *n ^be ®electi°n of qualified candidates, See Guardian's Ass'n. of New York v. Civil Service, 630 F.2d 79, 100 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981). Ranking is" }, { "docid": "23355456", "title": "", "text": "is unlikely to have an over-compromising attitude toward affirmative action. Employers recognize, as does the dissent, that an inequitable or overly zealous affirmative action plan may create racial tension in the workplace. The presence of this tension may create dissension and a general non-productive work climate. This unfortunate, but real potential for non-minority backlash is a potent disincentive which restrains employers from agreeing to “too” sweeping affirmative action. However, it is doubtful that this backlash is any less counter-productive than that created by perpetual discriminatory employment policies. More significantly, however, such considerations cannot justify failure to sustain an otherwise reasonable consent decree. . Statistical evidence of racially disparate impact may establish a statutory violation of Title VII. See Detroit Police Officers Assoc., 608 F.2d at 686; International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977). Under some circumstances such evidence could demonstrate a constitutional violation. See Village of Arlington Heights v. Metropolitan Housing Corporation, 429 U.S. 252, 266 and n.13, 97 S.Ct. 555, 564 and n.13, 50 L.Ed.2d 450 (1972). . This court assumes the rate of minority participation in the labor force equals the percentage of minorities in the Memphis community. . If a violation had been established, the remedy would have embodied retrospective as well as prospective relief. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1974). . Absent extraordinary circumstances, the court should act only on the motion of the parties. . We express no opinion on whether the goals contained in the instant decree should be increased at the conclusion of the unanticipated economic crisis in Memphis. . See Footnote 5. . We note that this court has previously endorsed the analysis of Rule 60(b) in Philadelphia Welfare Rights Org’n., 602 F.2d at 1120-21: Any injunction imposing mandatory affirmative duties for the future involves elements of prediction. Whether the prediction as to achievability is made as a result of litigation or, as here, in a negotiated settlement, it will always be speculative to some degree. This is" }, { "docid": "22265637", "title": "", "text": "Ass’n, 608 F.2d 671 at 694-98 (6th Cir.1979); Setser, 657 F.2d at 968-69. The decree also cannot bar absolutely the advancement of qualified persons, or require the discharge of non-minority workers and the replacement with minorities. Id. Affirmative provisions which seek “the same racial proportion among employees as in the labor force will ordinarily be reasonable.” See Detroit Police Officers Ass’n, 608 F.2d at 696; Stotts, 679 F.2d at 553. A simple reduction in non-minority “expectations” does not necessarily make a consent decree unfair and unreasonable. The affirmative relief provisions of any consent decree will undoubtedly diminish the expectation of non-minorities. Non-minority expectations are based on the employer’s pre-decree employment practices which have caused the under-utilization of minorities the decree is designed to correct. See Stotts, 679 F.2d at 556. Therefore, it is impossible not to adversely affect non-minority expectations and simultaneously correct the under-utilization of minorities. In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977), the Supreme Court stated that absent discrimination, the minority utilization should approximate the percentage of minorities in the community. It is not unreasonable for non-minorities’ expectations to be reduced to accommodate a level of minority participation which would have occurred absent discrimination. Stotts, 679 F.2d at 556. In assessing the fairness of the decree the court should be aware of the practical observation made in Stotts: An employer, such as the City, is unlikely to have an over-compromising attitude toward affirmative action. Employers recognize, as does the dissent, that an inequitable or overly zealous affirmative action plan may create racial tension in the workplace. The presence of this tension may create dissension and a general non-productive work climate. This unfortunate, but real, potential for non-minority backlash is a potent disincentive which restrains employers from agreeing to “too” sweeping affirmative action. However, it is doubtful that this backlash is any less counter-productive than that created by perpetual discriminatory employment policies. More significantly, such considerations cannot justify failure to sustain an otherwise reasonable consent decree. 679 F.2d at 555 n. 12." }, { "docid": "23355412", "title": "", "text": "case, the harm suffered by incumbent non-minority employees because of the promotional goal is de minimus. Many minorities would have been promoted even absent the consent decree. In fact, absent discrimination, the minority promotion rate should approximate the percentage of minorities in the community. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n.20, 97 S.Ct. 1843, 1856 n.20, 52 L.Ed.2d 396 (1977); Detroit Police Officers Assoc., 608 F.2d at 696-97. Minorities represent 35% of the Memphis Community, therefore, over the long-run the minority promotion rate should exceed the 20% promotion ratio in the 1980 Decree. Viewed in this light, the promotion ratio in the 1980 Decree is a floor and not a ceiling on minority promotions. The consent decree embodies a minority promotion ratio which is less than the 35% minority promotion ratio which presumptively would be the norm absent the City’s past employment practices. Non-minorities allege the 1980 Decree’s 20% promotion goal unduly interferes with their expectation of promotion. It appears, however, that the expectation of non-minorities is based upon a pre-decree minority promotion ratio which presumptively would have been significantly higher had the City’s employment practices been non-discriminatory. The 1980 Decree eliminated only a portion of the promotional expectations of non-minorities which presumptively were based on the City’s discriminatory promotional practices. The court also held a hearing to enable the proposed intervenors to air their objections to the 1980 Decree. The proposed intervenors suggested that the court restructure the Fire Department, institute a constructive promotion procedure, or create more upper management positions so the promotional expectations of non-minorities would not be diminished. The district court rejected these alternatives. The court was correct in summarily rejecting the alternatives suggested by the intervenors. See Philadelphia, 24 EPD at 18,048, 499 F.Supp. at 1199-2000. The court had no authority to restructure the Memphis Fire Department. See National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), on remand sub nom., National League of Cities v. Marshall, 429 F.Supp. 703 (D.C.D.C.1977). Finally, the court determined that the decree was reasonable. We agree." }, { "docid": "23355455", "title": "", "text": "See Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir. 1981); Detroit Police Officers Association, 608 F.2d at 689, 690 (6th Cir.). In the context of consent decrees providing af firmative action relief, we interpret the disclaimer of wrongdoing to be an admission that there is a statistical disparity which the defendants cannot unequivocally explain, together with a reservation of the right to attempt to explain it at any other time. See United States v. City of Alexandria, 614 F.2d 1358 at 1365 n.15 (5th Cir.). . “Settlement agreements should ... be upheld whenever equitable and policy considerations so permit. By such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before overburdened courts, and to citizens whose taxes support the latter. An amicable compromise provides the more speedy and reasonable remedy for the dispute.” Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976). . An employer, such as the City, is unlikely to have an over-compromising attitude toward affirmative action. Employers recognize, as does the dissent, that an inequitable or overly zealous affirmative action plan may create racial tension in the workplace. The presence of this tension may create dissension and a general non-productive work climate. This unfortunate, but real potential for non-minority backlash is a potent disincentive which restrains employers from agreeing to “too” sweeping affirmative action. However, it is doubtful that this backlash is any less counter-productive than that created by perpetual discriminatory employment policies. More significantly, however, such considerations cannot justify failure to sustain an otherwise reasonable consent decree. . Statistical evidence of racially disparate impact may establish a statutory violation of Title VII. See Detroit Police Officers Assoc., 608 F.2d at 686; International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977). Under some circumstances such evidence could demonstrate a constitutional violation. See Village of Arlington Heights v. Metropolitan Housing Corporation, 429 U.S. 252, 266 and n.13, 97 S.Ct. 555, 564 and" }, { "docid": "23374880", "title": "", "text": "merits or are created by voluntary agreement between the parties. See Stotts II, supra, 679 F.2d at 583; Stotts v. Memphis Fire Department, 679 F.2d 541, 554, 556, 558 (6th Cir.1982), cert. granted, — U.S. —, 103 S.Ct. 2451, 77 L.Ed.2d 1331 (1983) (“Stotts F); Setser v. Novack Investment Co., 657 F.2d 962, 970 (8th Cir.1981) (en banc); Prate v. Freedman, 583 F.2d 42, 47 (2d Cir.1978); Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., supra, 556 F.2d at 173. It follows, therefore, that although non-minority third parties allowed to intervene in cases which involve consent decrees or settlement agreements implementing race-conscious hiring or promotional remedies do have a sufficient interest to argue that the decree or agreement is unreasonable or unlawful, their interest in the expectation of appointment does not require their consent as a condition to any voluntary compromise of the litigation. See Airline Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra, 573 F.2d at 964; Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., supra, 556 F.2d at 173 (interests of a third party in a consent decree limited to appropriateness of the remedy); see also Stotts II, supra, 679 F.2d at 584 n. 3 (dictum); Stotts I, supra, 679 F.2d at 554; In re Fine Paper Litigation State of Washington, 632 F.2d 1081, 1087 (3d Cir.1980); Kirkland Sergeants, 520 F.2d 420, 424 (2d Cir.1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976); Shapiro, supra, at 756 n. 157 (“It might ... be possible to hold that persons allowed to intervene in a consent decree proceeding could argue ... that the decree was inadequate but could not veto the entrance of the decree .... ”). Indeed, a rule indiscriminately enabling all intervenors in these cases to veto proposed compromises would seriously hamper efforts to settle Title VII cases, see Airline Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra, 573 F.2d at 963, thereby frustrating Congress’s expressed preference for achieving Title VII compliance by voluntary means. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36," } ]

[ { "docid": "9951935", "title": "", "text": "Southern District of Texas. ANR argued that dismissal was proper because FERC has exclusive or primary jurisdiction to consider whether take-or-pay prepayments violate NGPA price ceilings. After a hearing on the motion, the district court dismissed Wagner & Brown’s suit, finding that the controlling issues in the case were within FERC’s primary jurisdiction. Wagner & Brown appeals. II. Primary jurisdiction is a judicially created doctrine whereby a court of competent jurisdiction may dismiss or stay an action pending a resolution of some portion of the action by an administrative agency. The doctrine is invoked: “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” United States v. Western Pacific R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). It is a flexible doctrine to be applied at the discretion of the district court. El Paso Natural Gas Co. v. Sun Oil Co., 708 F.2d 1011, 1020 (5th Cir.1983), cert. denied, 468 U.S. 1219, 104 S.Ct. 3589, 82 L.Ed.2d 887 (1984); Mississippi Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 418 (5th Cir.1976), cert. denied, 429 U.S. 1094, 97 S.Ct. 1109, 51 L.Ed.2d 541 (1977). Application of the doctrine is especially appropriate where: “uniformity of certain types of administrative decisions is desirable, or where there is a need for the ‘expert and specialized knowledge of the agencies.’ ” Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 919 (5th Cir.1983) (quoting, Western Pacific, supra, 77 S.Ct. at 165). A court considering deferring to an agency’s primary jurisdiction must weigh the benefits of obtaining the agency’s aid against the need to resolve the litigation expeditiously and may defer only if the benefits of agency review exceed the costs imposed on the parties. Gulf States Utilities Co. v. Alabama Power Co., 824 F.2d 1465, 1473 (5th Cir.1987) (citing, Mississippi Power & Light Co. v. United Gas" } ]

[ { "docid": "5968303", "title": "", "text": "Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). See United States v. Radio Corp. of America, 358 U.S. 334, 346, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959). “Primary jurisdiction is invoked in situations where the courts have jurisdiction over the claim from the very outset but it is likely that the case will require resolution of issues which, under a regulatory scheme, have been placed in the hands of an administrative body.” Total Telecommunications Services, Inc. v. AT & T, 919 F.Supp. 472, 478 (D.D.C.1996) (quoting Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376 (10th Cir.1989)). “The primary jurisdiction doctrine is premised on a desire for uniform outcomes and on the inherent advantage in allowing an agency, in this case the FCC, to apply its expert judgment to the issues in dispute.” Total Telecommunications, 919 F.Supp. at 478. Under the doctrine, a court should refer a matter to an administrative agency for resolution, “even if the matter is otherwise properly before the court, if it appears that the matter involves technical or policy considerations which are beyond the court’s ordinary competence and within the agency’s particular field of expertise.” MCI v. AT & T, 496 F.2d 214, 220 (3d Cir.1974); see also Allnet Communication Service, Inc. v. National Exchange Carrier Ass’n., 965 F.2d 1118, 1120 (D.C.Cir.1992) (“Expertise, of course, is not merely technical but extends to the policy judgments needed to implement an agency’s mandate.”). Although there is no fixed formula for determining whether to apply the doctrine of primary jurisdiction, see United States v. Western Pacific R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), the courts traditionally have considered four factors: (1) whether the question at issue is within the conventional expertise of judges; (2) whether the question at issue lies particularly within the agency’s discretion or requires the exercise of agency expertise; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made. Total Telecommunications, 919 F.Supp. at 478; AT & T v. MCI, 837" }, { "docid": "7782826", "title": "", "text": "affecting such charges, except as specified in such schedule. Defendants assert that plaintiffs’ claims under the Communications Act must be dismissed and referred to the FCC under the doctrine of primary jurisdiction. This doctrine requires courts to defer to administrative agencies issues intended by Congress to be within an agency’s expert discretion. The Supreme Court described this doctrine in United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956), in which it stated: The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties ... “Primary jurisdiction” ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 331, 84 L.Ed. 361. Courts have applied this doctrine to require deferral to administrative agencies of matters that call for the exercise of an agency’s discretion and expertise. For example, a dispute as to whether a carrier’s rates or practices are reasonable has uniformly been deemed to be within the primary jurisdiction of the appropriate regulating agency. As the court held in Danna v. Air France, 463 F.2d 407, 409 (2nd Cir.1972): It is beyond dispute that claims that filed tariffs are either unreasonable in amount or unduly discriminatory in effect are questions that in the first instance must be determined by the agency with the tariffs are filed. Any attempt to sue in federal court or in state court on such claims without first obtaining an agency determination of unreasonableness or undue discrimination fails to state a cause of action. See also Montana-Dakota Utility Co. v. Northwestern Public Service Co., 341 U.S. 246, 251, 71" }, { "docid": "6819772", "title": "", "text": "hospital also used the Chemlawn service (cplt. at ¶ 104). The complaint requests compensatory and punitive damages, as well as several forms of injunctive relief. Chemlawn asserts that “plaintiff seeks to have this court function as a scientific tribunal and decide a virtually endless list of issues of law and fact regarding the uses and effects of at least eight pesticide products” (mem. in supp. of def. mo. to dism. at 3). Chemlawn therefore requests that this court dismiss or, in the alternative, stay these proceedings pending a determination of many of the factual issues by the United States Environmental Protection Agency (EPA). DISCUSSION I. Primary Jurisdiction Primary jurisdiction “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body....” United States v. Western Pacific Railroad Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). It is not, as defendants would have it, an automatic procedure. Rather, “[a] court considering deferring to an agency’s primary jurisdiction must weigh the benefits of obtaining the agency’s aid against the need to resolve the litigation expeditiously and may defer only if the benefits of agency review exceed the costs imposed on the parties.” Wagner & Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th Cir.1988) (citations omitted). We agree that deferral to the expertise of the EPA on the technical aspects of plaintiff’s case would be far preferable, even though the EPA cannot provide every remedy sought by plaintiff. However, the desire to employ this expertise must be weighed against the harm that might occur while awaiting an administrative decision, a delay which appears likely were defendant’s motion granted. As far as this court can tell, the EPA will not complete its assessment of non-agricultural pesticides until the beginning of the next century. See General Accounting Office, Nonagricultural Pesticides, Risks and Regulations, 26 (April 1986) (Nonagri-cultural Pesticides). The EPA’s expedited review program (special review) appears backlogged as well. According" }, { "docid": "17642126", "title": "", "text": "properly cognizable in court but contains some issue within the special competence of an administrative agency.” United States v. Haun, 124 F.3d 745, 749 (6th Cir.1997) (citing Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). When the doctrine applies, court proceedings are stayed so that the agency may bring its special competence to bear on the issue. See id. Unfortunately, “[n]o fixed formula exists for applying the doctrine[.]” United States v. Western Pacific. R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)). Rather, “[i]n every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” Id. Those reasons, broadly speaking, are the desire for uniformity in adjudication and the belief that the decisionmaker with the most expertise and broadest perspective regarding a statutory or regulatory scheme will be most likely to resolve the issue correctly. See id. The doctrine has even been applied to the government itself. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952) (ordering an antitrust action brought by the United States as a shipper dismissed pursuant to the doctrine of primary jurisdiction following the intervention of, and motion to dismiss by, the Maritime Board, the relevant federal agency). But the doctrine does not apply when the specially competent agency is itself the plaintiff. See, e.g., United States v. Alcon Laboratories, 636 F.2d 876, 888 (1st Cir.1981) (“[Djeference to an agency’s primary jurisdiction makes little sense in the context of an enforcement proceeding initiated by the agency.”); ICC v. All-American, Inc., 505 F.2d 1360, 1362 (7th Cir.1974) (“It has been suggested ... that, in cases where the appropriate administrative body is before the court, the doctrine should not apply since a principal function of the rule, acquainting the court with the agency’s position concerning the matter, has been satisfied.”); CAB v. Aeromatic Travel Corp., 489 F.2d 251, 254 (2d Cir.1973) (“[W]hen the agency chooses to go to the" }, { "docid": "4530885", "title": "", "text": "likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court also rejects Defendants’ argument that a state agency enjoys “primary jurisdiction” over Plaintiffs’ claims. The doctrine of primary jurisdiction is designed to coordinate the relationship between federal courts and administrative agencies. United States v. Western Pac. R.R., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). Where an administrative agency and a court share concurrent jurisdiction, but resolution of the claim at issue falls within the peculiar competence of the agency, the court may stay further action to permit a plaintiff to apply for a ruling from the agency. Reiter v. Cooper, 507 U.S. 258, 268 n. 3, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993); Hansen v. Norfolk & W. Ry., 689 F.2d 707, 710 (7th Cir.1982). The Supreme Court first recognized the doctrine of primary jurisdiction in the context of the Interstate Commerce Act (“ICA”). Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). The ICA permitted plaintiffs to seek redress either in federal district courts or by making a complaint to the Interstate Commerce Commission (“ICC”). 49 U.S.C.A. § 9 (repealed 1978); cf. 49 U.S.C.A. § 11704(c)(1). The Court concluded, however, that questions related to the determination of just shipping rates should first be committed to the ICC. Abilene Cotton Oil, 204 U.S. at 44(MU, 27 S.Ct. 350. Application of the doctrine of primary jurisdiction initially rested upon the need for uniformity with respect to certain administrative regulations. Id. Subsequently, the Court emphasized the specialized knowledge held by administrative agencies. Western Pac. R.R., 352 U.S. at 64-65, 77 S.Ct. 161. The question raised by Defendants’ Motion to Dismiss is whether the statutory scheme imposed under the Medicaid Act requires the Georgia State Department of Community Health to pass on Plaintiffs’ claims of lack of sufficient care. Cf. Western Pac. R.R., 352 U.S. at 65, 77 S.Ct. 161 (“[T]he first question presented is whether effectuation of the statutory purposes of" }, { "docid": "3503817", "title": "", "text": "tariffs for liability — until Spring 1996, in large part due to defendants’ fraudulent concealment of their claims; (3) the doctrine of equitable estoppel precludes defendants from asserting the statutes of limitations as a defense; and (4) the statutes were tolled by defendants’ “continuing wrongs.” 1. Exhaustion of Administrative Remedies with the PSC Plaintiffs first argue that the PSC has “primary jurisdiction” to hear their claims and they were therefore required to exhaust their administrative remedies with the PSC prior to filing an action in this court. Under plaintiffs’ theory, timely filing of their claims with the PSC satisfied the applicable statutes of limitations, a. The Doctrine of Primary Jurisdiction Plaintiffs appear to be conflating the concepts of exhaustion of administrative remedies and primary jurisdiction. The Supreme Court has explained: The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. “Exhaustion” applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. “Primary jurisdiction,” on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. United States v. Western Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). Indeed, plaintiffs’ position, that the doctrine of primary jurisdiction required them to present their claims to an administrative agency — here the PSC — in the first instance has been rejected by the Supreme Court. See Reiter v. Cooper, 507 U.S. 258, 268-69, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (“[Rjespondents contend that the doctrine of primary jurisdiction requires petitioners initially to present their unreasonable-rate claims to the ICC, rather than to a court. That reflects a" }, { "docid": "22278406", "title": "", "text": "an FTCA claim raises a substantial question of FECA coverage, the courts do not immediately lose subject-matter jurisdiction over the case. For if the Secretary determines that the type of claim involved does not implicate the FECA, then the FTCA claim may proceed. See Noble, 216 F.3d at 1235; White v. United States, 143 F.3d 232, 239 (5th Cir.1998); McDaniel, 970 F.2d at 198; DiPippa, 687 F.2d at 20. “[T]he courts have no jurisdiction over FTCA claims where the Secretary determines that FECA applies.” Sw. Marine, 502 U.S. at 90, 112 S.Ct. 486 (emphasis added). Even in situations where the district court deems it highly unlikely that the claim falls outside the scope of the FECA, subject-matter jurisdiction over the case remains with the court until the Secretary has made that determination. Our conclusion in this regard is informed by the Supreme Court’s discussion in Southwest Marine of the relationship between FECA and the FTCA in the context of the so-called “primary jurisdiction” doctrine. Id. The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. “Exhaustion” applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. “Primary jurisdiction,” on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); see also Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (“Referral of the issue to the administrative agency does not deprive the court of jurisdiction.... ”). We think the doctrine of primary jurisdiction establishes a helpful" }, { "docid": "23346982", "title": "", "text": "a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 331, 84 L.Ed. 361. No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. See Texas & Pacific Railroad Company v. Abilene Cottonoil Company, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. More recently the expert and specialized knowledge of agencies involved has been particularly stressed. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. United States v. Western Pacific Company, 1956, 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126; see also Watts v. Missouri-Kansas-Texas Railroad Company, 5th Cir. 1967, 383 F.2d 571, 581; Carter v. American Telephone & Telegraph Company, 5th Cir. 1966, 365 F.2d 486, 493-498, cert. denied 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546. Primary jurisdiction reference to an agency is favored when it will promote even-handed treatment and uniformity in a highly regulated area or when “sporadic action by federal courts would disrupt an agency’s delicate regulatory scheme.” United States v. Radio Corporation of America, 1959, 358 U.S. 334, 348, 79 S.Ct. 457, 466, 3 L.Ed.2d 354. The importance of uniformity has been recognized especially in cases involving reasonableness of tariffs or rates. E. g., Arrow Transportation Company v. Southern Railroad Company, 1963, 372 U.S." }, { "docid": "23039444", "title": "", "text": "412, 417 (5th Cir.1977), cert. denied, 429 U.S. 1094, 97 S.Ct. 1109, 51 L.Ed.2d 541 (1977). The doctrine applies when agency action would produce needed uniformity in an area or when the agency has “special competence” over the issue to be decided. See United States v. Western Pacific Railroad Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956); accord Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 515 n. 11 (5th Cir.1982) (defer to agency if it is “better equipped than court’s by specialization, by insight gained through experience, and by more flexible procedures”), cert. denied, 464 U.S. 335, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); United States v. McDonnell Douglas Corp., 751 F.2d 220, 224 (8th Cir.1984) (defer if issue requires uniformity of resolution and the agency’s “expert consideration”). Sometimes, the courts should allow an agency to interpret a contract, especially when “words ... are used in a peculiar or technical sense, and where extrinsic evidence is necessary to determine their meaning or proper applications.” Western Pacific Railroad, 352 U.S. at 65-66, 77 S.Ct. at 166 (holding that the Interstate Commerce Commission, not the court, should decide whether napalm gel bombs without fuses or bursters are “incendiary bombs” within the meaning of an ICC tariff). We have said that a district court in its discretion should invoke primary jurisdiction and defer only if the benefits of obtaining the agency’s aid outweigh the need to resolve the litigation expeditiously. Mississippi Power, 532 F.2d at 419. The district court may consider many factors in striking this balance, including: how agency action will aid the litigation; whether the litigation involves conduct requiring continuing supervision by the agency; whether the issues to be litigated are unique to regulated industries; and whether proceedings already are pending before the agency. Id. at 419-20. In the case before us, both parties have initiated proceedings before the FERC, but the district court refused to stay the litigation pending the FERC’s decision. Since the district court’s decision and oral argument in this appeal, the FERC’s Administrative Law Judge (“AU”) rendered an" }, { "docid": "21458852", "title": "", "text": "doctrine does not bar TON’s ability to proceed in federal court at this stage of the litigation. C. Primary Jurisdiction 1. Primary Jurisdiction Doctrine Even where a court has subject matter jurisdiction over a claim, courts have discretion to refer an issue or issues to an administrative agency. Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376 (10th Cir.1989). The doctrine of primary jurisdiction is “specifically applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency.” Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). The purpose of the doctrine is to “allow agencies to render opinions on issues underlying and related to the cause of action.” Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171, 1179 (10th Cir.2005). It is “designed to allow an agency to pass on issues within its particular area of expertise before returning jurisdiction to the federal district court for final resolution of the case.” Id. at 1176; see also Williams Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1496 (10th Cir. 1996) (“[C]ourts apply primary jurisdiction to cases involving technical and intricate questions of fact and policy that Congress has assigned to a specific agency.”). The doctrine of primary jurisdiction is distinct from the concept of exhaustion, which prevents a federal court from exercising jurisdiction over a claim until all administrative remedies have been pursued. See United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Mountain States Natural Gas Corp. v. Petroleum Corp. of Tex., 693 F.2d 1015, 1019 (10th Cir.1982). In this circuit, a district court’s decision to invoke the primary jurisdiction doctrine “requirefs] it to consider whether the issues of fact in the case: (1) are not within the conventional experience of judges; (2) require the exercise of administrative discretion; or (3) require uniformity and consistency in the regulation of the business entrusted to the particular agency.” Crystal Clear Commc’ns, 415 F.3d at 1179. Additionally, when the regulatory agency has actions pending" }, { "docid": "1572302", "title": "", "text": "claims they raise. The doctrine of primary jurisdiction “comes into play whenever enforcement of [a] claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” Johnson v. Nyack Hospital, 964 F.2d 116, 122 (2d Cir.1992) (quoting United States v. Western Pac. R.R., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)). “Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion either to retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice.” Reiter v. Cooper, 507 U.S. 258, 268-69, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). Although the doctrine arose out of situations involving jurisdictional conflicts between federal courts and federal agencies, see, e.g., Goya Foods, Inc. v. Tropicana Products, Inc., 846 F.2d 848 (2d Cir.1988), it has been held applicable where state agencies have jurisdiction over issues sought to be raised before federal district courts. See Johnson, supra, 964 F.2d at 122-23. “The aim of the doctrine ... is to ensure that courts and agencies with concurrent jurisdiction over a matter do not work at cross-purposes.” Fulton Cogeneration Assocs. v. Niagara Mohawk Power Corp., 84 F.3d 91, 97 (2d Cir.1996) (citations omitted). In determining whether to apply the doctrine, courts generally look to four factors. These are: (1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made. See National Communications Assoc. v. American Telephone and Telegraph Co., 46 F.3d 220, 222-23 (2d Cir.1995). In addition, courts must “balance the advantages of applying the doctrine against the potential costs resulting from complications and delay in the administrative proceedings.” Id. at 223. With respect to the first and second factors, the court is not persuaded that the questions at" }, { "docid": "5007309", "title": "", "text": "all claims for injunctive and declaratory relief, “because the subject matter of these claims, namely, the question of whether 2, 4, 5-T should be banned, is committed to the primary jurisdiction of the Environmental Protection Agency.” Not all the equitable claims in the AVC involve the banning of 2, 4, 5 — T; however, the court holds for reasons set forth below, that those claims that do so are committed to the primary jurisdiction of the EPA and must be stayed. In a leading case, the Supreme Court explained the doctrine of primary jurisdiction as follows: The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. * * * “Primary jurisdiction” * * * applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views, [citations omitted]. No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions, [citation omitted]. More recently, the expert and specialized knowledge of the agencies involved has been particularly stressed. United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). Cases since Western Pacific have elaborated upon and expanded the doctrine of primary jurisdiction. See discussion in Mississippi Power and Light Company v. United Gas Pipe Line, 532 F.2d 412 (CA5 1976), rehearing denied 5" }, { "docid": "2274702", "title": "", "text": "risk classifications for the coal ash lagoons. (Hr’g Tr. 25:2-7, ECF No; 44); see N.C. Gen.Stat. § 130A~309.213(a). Duke Energy’s argument in support of a stay rests on the primary jurisdiction doctrine and the Court’s inherent power to stay proceedings. A. Primary Jurisdiction Doctrine In its initial briefing, Duke Energy relied exclusively on the primary jurisdiction doctrine as grounds for its motion to stay. (See Def.’s Stay Mem. 7-14, ECF No. 24.) The primary jurisdiction doctrine is “concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific R.R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). The doctrine applies when enforcement of a claim that is “originally cognizable in the courts ... requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” Id. at 63-64, 77 S.Ct. 161. In such a case, the court can “enable a ‘referral’ to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling.” Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). “Notably, such a referral.... ‘does not deprive the court of jurisdiction____’” Smith v. Clark/Smoot/Russell, 796 F.3d 424, 431 (4th Cir.2015) (quoting Reiter, 507 U.S. at 268, 113 S.Ct. 1213). Rather, the court “has discretion either to retain jurisdiction or,. if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice.” Id. (quoting Reiter, 507 U.S. at 268-69, 113 S.Ct. 1213). The decision to refer an issue to an administrative agency is “a discretionary-matter.” Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 789 n. 24 (4th Cir.1996). “No fixed formula exists for applying the doctrine of primary jurisdiction. In every ease the quéstion is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” Western Pacific, 352 U.S. at 64, 77 S.Ct. 161. Identified decades ago by the Supreme Court and persisting today," }, { "docid": "22042359", "title": "", "text": "to allow the Corps to exercise its “primary jurisdiction” over which activities should be permitted on the wetlands by directing the private defendants to apply for a permit rather than proceeding to trial: In light of the complex situation in this case, federal defendants suggest that the initial determination in this case of the essentially factual issues of whether or not there will be discharges of dredged or fill material and what the effects thereof will be on the reach and flow and circula tion of navigable waters, be made through the permit process instituted by Congress for that purpose, and thereafter the case would be ripe for judicial review. Id. (emphasis in original). The judge-made doctrine of primary jurisdiction is “concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific Railroad, 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). It applies where a claim is “originally cognizable in the courts,” but where “enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” Id. at 64, 77 S.Ct. at 165. Application of the doctrine is particularly appropriate where uniformity of certain types of administrative decisions is desirable, or where there is a need for the “expert and specialized knowledge of the agencies.” Id.; see also Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 420, 79 S.Ct. 1210, 1216, 3 L.Ed.2d 1334 (1959); Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494-95, 96 L.Ed. 576 (1952). The district court might have been well advised to agree to the federal defendants’ request that the Corps be allowed to make the initial determination about which activities should be permitted on the Lake Long Tract. Compare Deltona Corp. v. Alexander, 682 F.2d 888, 893-94 (11th Cir.1982) (upholding summary judgment in Corps’ favor where Corps" }, { "docid": "21458853", "title": "", "text": "Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1496 (10th Cir. 1996) (“[C]ourts apply primary jurisdiction to cases involving technical and intricate questions of fact and policy that Congress has assigned to a specific agency.”). The doctrine of primary jurisdiction is distinct from the concept of exhaustion, which prevents a federal court from exercising jurisdiction over a claim until all administrative remedies have been pursued. See United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Mountain States Natural Gas Corp. v. Petroleum Corp. of Tex., 693 F.2d 1015, 1019 (10th Cir.1982). In this circuit, a district court’s decision to invoke the primary jurisdiction doctrine “requirefs] it to consider whether the issues of fact in the case: (1) are not within the conventional experience of judges; (2) require the exercise of administrative discretion; or (3) require uniformity and consistency in the regulation of the business entrusted to the particular agency.” Crystal Clear Commc’ns, 415 F.3d at 1179. Additionally, when the regulatory agency has actions pending before it which may influence the instant litigation, invocation of the doctrine may be appropriate. See Mical Commc’ns, Inc. v. Sprint Telemedia, Inc., 1 F.3d 1031, 1037-38 (10th Cir.1993). There is, however, no “fixed formula ... for applying the doctrine.” W. Pac. R.R. Co., 352 U.S. at 64, 77 S.Ct. 161.. Courts should consider case-by-case whether “the reasons for the existence of the doctrine are present and whether the purposes it serves [i.e., uniformity and resort to administrative expertise] will be aided by its application in the particular litigation.” Id. When the primary jurisdiction doctrine is invoked, “the judicial process is suspended pending referral of such issues to the administrative body for its views.” Id. Referral does not automatically divest the court of jurisdiction. Reiter, 507 U.S. at 268, 113 S.Ct. 1213. The district court may retain jurisdiction over the' proceedings by staying the plaintiffs claims pending agency action or, if neither party will be unfairly disadvantaged, dismissing the case without prejudice. Id. at 268-69, 113 S.Ct. 1213; see also Crystal Clear Commc’ns, 415 F.3d" }, { "docid": "20121016", "title": "", "text": "these issues is granted. VI. Even if this Court has concurrent jurisdiction with the agency over Mulberry Hills’ complaint, the doctrine of primary jurisdiction would require deferral to the agency. The doctrine of primary jurisdiction directs a court, where both an agency and a court have jurisdiction over a matter, to refrain from exercising its judicial power so that an agency particularly equipped to address issues and charged with regulatory duties within its expertise may perform its functions. See Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303, 96 S.Ct. 1978, 1986, 48 L.Ed.2d 643 (1976); Western Pacific Railroad, 352 U.S. at 63, 77 S.Ct. at 164. The purpose of the doctrine of primary jurisdiction, and the reasons for invoking the doctrine, include the need to promote uniformity and consistency in the regulation of business entrusted to an administrative agency, and the recognition that agencies are often better equipped than courts to resolve certain issues because of specialization and insight gained through experience. The doctrine is particularly appropriate where a technical question of fact is presented which is uniquely within the jurisdiction and expertise of the delegated agency. See Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494-95, 96 L.Ed. 576 (1952); Nader, 426 U.S. at 304, 96 S.Ct. at 1987. Deferral to the agency on the issues raised in this case, on the basis of primary jurisdiction, is appropriate. The factual issues are present which are particularly within the expertise of the Corps and the EPA. Determination of whether an area constitutes a wetland within the meaning of § 404 of the CWA requires agency expertise. See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 919-20 (5th Cir.1983); Golden Gate Audubon Society v. United States Army Corps of Engineers, 717 F.Supp. 1417, 1420 n. 3 (N.D.Cal.1988). Accordingly, even if this Court were to find that this complaint was ripe for determination, the Court would defer to the agency for further findings under the doctrine of primary jurisdiction. VII. Mulberry Hills, in Counts III through V of the amended complaint, seeks declaratory judgment by" }, { "docid": "3677096", "title": "", "text": "Act gives a plaintiff the choice of forums: the FCC or the District Court. SWB argues that it is simply exercising its “unequivocal right to pursue its claim for damages in this Court.” It characterizes its claims as a “straightforward action to collect unpaid charges for service ...” and objects to Allnet’s assertion that this case involves the reasonableness of rates. Plaintiff asserts that there is no issue as to the reasonableness of the rates because of the “filed tariff doctrine”. SWB contends that under the “filed tariff doctrine”, defendant Allnet is precluded from challeng ing in this Court the reasonableness of rates duly filed with the FCC. The doctrine of primary jurisdiction applies where enforcement of a claim originally cognizable in a court requires the resolution of issues which, under a regulatory scheme, have been placed within the special expertise and competence of an administrative agency; in such a case the judicial process is suspended pending referral of the issues in question to the administrative agency for its views. United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-65, 77 S.Ct. 161, 164-66, 1 L.Ed.2d 126 (1956). The doctrine is concerned with “promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” U.S. v. Western Pac. R. Co., 352 U.S. at 63, 77 S.Ct. at 165. There is no fixed formula for applying the doctrine of primary jurisdiction. Each case must be evaluated independently to see whether “the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” U.S. v. Western Pac. R. Co., 352 U.S. at 64, 77 S.Ct. at 165. There are two reasons to apply the doctrine: 1) to secure uniformity and consistency in the regulation of businesses entrusted to a particular agency; and 2) to obtain the benefit of the expertise and experience of the particular agency. Nader v. Allegheny Airlines, 426 U.S. 290, 303-04, 96 S.Ct. 1978, 1986-87, 48 L.Ed.2d 643 (1976); U.S. v. Western Pac. R. Co., 352 U.S. at 64, 77 S.Ct." }, { "docid": "22819732", "title": "", "text": "were not satisfied because plaintiffs had not proceeded with reasonable diligence during the period they sought to have tolled. 891 F.Supp. at 161. On appeal, plaintiffs pursue the same contention. The doctrine of primary jurisdiction applies where a claim, though “originally cognizable in the courts,” is better suited for a specialized administrative body. United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S.Ct. 161, 164-65, 1 L.Ed.2d 126 (1956). Under the doctrine, a court defers to the agency for advisory findings and either stays the pending action or dismisses it without prejudice. Reiter v. Cooper, 507 U.S. 258, 268-69, 113 S.Ct. 1213, 1220-21, 122 L.Ed.2d 604 (1993). In doing so, the court must take care that its deferral not unfairly disadvantage either party. Id. The paramount concern is that the deferral not work a time-bar to claims that will in all likelihood be refiled in federal court after the agency acts. The statute of limitations is not a concern where the deferring court has issued a stay — the action is simply reactivated, if necessary, after the administrative proceeding runs its course. See American Tel. & Tel. Co. v. Delta Communications Corp., 590 F.2d 100, 102 (5th Cir.) (per curiam) (vacating without-prejudice dismissal and remanding with instructions for district court to stay counterclaims within primary jurisdiction of Federal Communications Commission because dismissal might unfairly prejudice defendant), cert. denied, 444 U.S. 926,100 S.Ct. 265, 62 L.Ed.2d 182 (1979). But where the action has been dismissed without prejudice, a plaintiffs subsequent court filing is vulnerable to a time-bar because the dismissal in and of itself does not halt the running of the limitations period, even though designated to be without prejudice. See Jewell v. County of Nassau, 917 F.2d 738, 740-41 (2d Cir. 1990) (per curiam); Gannett Co. v. Register Publishing Co., 428 F.Supp. 818, 835 (D.Conn.1977) (“without prejudice” does not mean that “[t]ime ... stands still”). Thus, to ensure that unfair prejudice does not result from a deferring court’s without-prejudice dismissal, courts have protected a plaintiffs rights with the doctrine of equitable tolling, which provides a plaintiff with “just" }, { "docid": "2448054", "title": "", "text": "of proper relationships between the courts and administrative agencies responsible for certain regulatory duties. The Supreme Court in United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956) explained the doctrine as follows: ‘Primary jurisdiction’ ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. 352 U.S. at 63-64, 77 S.Ct. at 165. See also Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952). Under the primary jurisdiction doctrine, a court does not surrender jurisdiction of the case; instead, the court postpones exercise of jurisdiction pending a decision thereon by an administrative agency. In determining whether to apply the doctrine courts consider the reasons for primary jurisdiction and whether the purposes it serves will be enhanced by applying it to the particular case. Such determination must of necessity be made on a case by case basis in order to facilitate the congressional policy of economy of administration without undue delay in bankruptcy matters. See Western Pacific Railroad Co., 352 U.S. at 64-65, 77 S.Ct. at 165; In re Townview Nursing Home, supra, at 441. One of the reasons often stated for invocation of primary jurisdiction is the “desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions.” Western Pacific Railroad Co., 352 U.S. at 64, 77 S.Ct. at 165. In addition to this, the expertise and specialized knowledge of the administrative agencies have been important factors in invoking the primary jurisdiction doctrine. Because of the involvement of the Medicare reimbursement issues, the specialized knowledge, experience, and expertise of HHS and the need for uniformity in Medicare matters, this court is of the opinion that this is an appropriate case for application of the doctrine of primary jurisdiction." }, { "docid": "10522975", "title": "", "text": "of government resources, and an unjust expense to the parties to try to run parallel litigation of these issues in the district court while the problem is under the management of the federal agency. Even if this case were not moot, I would invoke the primary jurisdiction doctrine and stay the case pending further administrative proceedings before the U.S. Fish and Wildlife Service. The primary jurisdiction doctrine is a flexible tool that is designed to allocate efficiently fact finding between the federal courts and administrative agencies. See United States v. Western Pac. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). The doctrine is “applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency. It requires the court to enable a ‘referral’ to the agency---Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion either to retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice.” Reiter v. Cooper, 507 U.S. 258, 268-69, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). This case involves a question of fact-whether artificial beachfront lighting “takes” sea turtles-that is not only within the special competence of the U.S. Fish and Wildlife Service, but is actually being reviewed by that agency. The Incidental Take Permit requires Volusia County to provide the U.S. Fish and Wildlife Service with information regarding lights which potentially disorient turtles and, if necessary, develop an appro priate mitigation plan. If the U.S. Fish and Wildlife Service determines that artificial beachfront lighting does indeed “take” turtles but does not threaten the continued existence of the species, then it is empowered by statute to craft a flexible solution to the problem of incidental takes. In this case, the U.S. Fish and Wildlife Service has already issued an Incidental Take Permit that comprehensively regulates artificial beachfront lighting. Invoking the primary jurisdiction doctrine would avoid a judicial solution that might conflict with the regulatory scheme already approved by the appropriate administrative agency. See Friends of Santa Fe County" } ]

[ { "docid": "18754437", "title": "", "text": "§ 544(a) (1982) grants the trustee the status of a lien holder without notice. See S.Rep.No. 989, 95th Cong., 2d Sess. 85, reprinted in 1978 U.S. Code Cong. & Ad. News 5787, 5871; H.R.Rep. 595, 95th Cong., 1st Sess. 370 (1977), reprinted in 1978 U.S. Code Cong. & Ad. News 5963, 6326; In re Brent Explorations, Inc., 31 B.R. 745, 748-49 (Bankr.D.Colo.1983); 4 Collier on Bankruptcy 11544.02 (15th ed. 1984). Thus, the party which is seeking to avoid Deere’s liens, i.e., the debtor, cannot be on notice of Deere’s unperfected liens because section 544(a) statutorily determines that the debtor does not have such notice. See, e.g., In re Morse, 30 B.R. 52, 54 (1st Cir.Bankr.App. Panel 1983). Deere argues, however, that even if the law allows debtor to avoid Deere’s liens, the bankruptcy court should have used its equitable powers to prevent this harsh result {i.e., Deere losing more than $500,000 because of 19 misfilings). Deere argues that no creditor was harmed by the misfiling of the financing statements. Yet, a debtor in its role as trustee does not have to establish that any creditor was harmed by the failure to perfect a lien before the debtor can avoid the unperfected lien under section 544(a). See In re Great Plains Western Ranch Co., Inc., 38 B.R. 899, 904 (Bankr.C.D.Calif.1984). Moreover, a bankruptcy court’s equitable powers do not allow a bankruptcy court to contravene clear statutory provisions. See, e.g., Bank of Montevideo, 719 F.2d at 274. In fact, neither equity nor estoppel doctrines limit a trustee’s avoiding powers under section 544(a). Brent Explorations, 31 B.R. at 745, 748-49 cf. also Morse, 30 B.R. at 54 (personal knowledge of trustee irrelevant). Still, Deere cites three cases for the proposition that a bankruptcy court can use its equitable powers to avoid unjust results under section 544(a) in the case of misfiled liens. Loye v. Denver United States National Bank, 341 F.2d 402 (10th Cir.1965) and In re Mitchell, 104 F.Supp. 969 (N.D.Ohio 1952), aff'd, 202 F.2d 426 (6th Cir.1953), both involved banks which had liens on automobiles. Title and security interests in the" } ]

[ { "docid": "1077543", "title": "", "text": "re Brent Explorations, Inc., 31 B.R. 745, 748-49 (Bankr.D.Col.1983). Accordingly, with respect to the New York air conditioners, the case is remanded to the Bankruptcy Court for factual determinations as to which air conditioners were either brought to the Suffolk County stores from the Nassau County store, or shipped to the Suffolk County stores before the Nassau County store closed. Sanyo has a perfected security interest in these air conditioners. Sanyo does not have a perfected security interest in any air conditioners that the Bankruptcy Court determines were shipped to the Suffolk County stores after Howards closed its Nassau County store. Air Conditioners Stored in New Jersey Howards argued in the Court below that because Sanyo never filed a financing statement in New Jersey, it does not have a perfected security interest in the air conditioners located in that state. The Bankruptcy Court held that the doctrine of equitable estoppel applies to prevent Ho-wards from claiming that Sanyo’s security interest in the New Jersey air conditioners was not perfected since Sanyo had no imputable knowledge that the goods in fact were being stored in New Jersey. The Bankruptcy Court relied upon several cases which applied the doctrine of estoppel in bankruptcy proceedings. In Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966), the Supreme Court held that, “[t]here is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Id. at 103, 87 S.Ct. at 277. In addition, some courts have applied the doc trine of estoppel to prevent a debtor from denying that a security interest was perfected. See, e.g., In re Rule, 38 B.R. 37, 40-41 (Bankr.D.Vt.1983). Other courts have applied the doctrine of estoppel to prevent the bankruptcy trustee or a third party from denying the attachment of a security interest. See, e.g., In re Pubs, Inc., 618 F.2d 432 (7th Cir.1980). Thus, the doctrine of estoppel is clearly applicable in bankruptcy proceedings. The application of the doctrine of estoppel in bankruptcy proceedings is not, however, without limits. In Johnson v. First Nat’l Bank, 719 F.2d 270 (8th Cir.1983)," }, { "docid": "1077546", "title": "", "text": "trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists; 11 U.S.C. § 544(a) (emphasis added). The phrase “without regard to any knowledge of the trustee” has been interpreted to mean that the trustee can avoid a lien under section 544(a) even where the trustee had actual notice of the lien’s existence. In re Measure Control Devices, Inc., 48 B.R. 613, 615 (Bankr.E.D.N.Y.1985). The trustee, under this section, is accorded the status of a “hypothetical lien creditor” who did not have notice of the improperly filed security interest and thus can act as that lien creditor to avoid the security interest. Id.; In re Johnson, 28 B.R. 292, 296 (Bankr.N.D.Ill.1983). Therefore, a trustee would be able to avoid Sanyo’s unperfected security interest, even if the trustee had actual knowledge of the interest. Ho-wards, as debtor in possession, has the same rights and powers as a trustee. 11 U.S.C. § 1107(a). Therefore, Howards has the power, just as would a trustee, to avoid Sanyo’s unperfected lien, even though Ho-wards had prior knowledge of the lien's existence. Several courts have examined the applicability of the doctrine of estoppel with respect to the lien avoidance powers of section 544(a). In In re Brent Explorations, Inc., 31 B.R. 745 (Bankr.D.Col.1983), the bankruptcy court held that: “Section 544(a) vests the trustee (or the debtor-in-possession) with the rights of an ideal creditor, without knowledge or notice. One of the purposes for providing the ideal creditor status is to prevent such defenses as estoppel from being raised against the trustee.” Id. at 748-49; see also, In re Pirsig Farms, Inc., 46 B.R. 237, 242 (D.Minn.1985); In re Measure" }, { "docid": "14061258", "title": "", "text": "Collier on Bankrupt cy, II 544.01, at 544-2 to 3 (L. King 15th ed. 1986). Thus § 544(a) allows a trustee in bankruptcy to avoid liens and security interests against the debtor’s estate which were not properly perfected under state law before the debtor filed bankruptcy. Pirsig Farms, Inc. v. John Deere Co. (In re Pirsig Farms, Inc.), 46 B.R. 237, 240 (D.Minn.1985). See Frier v. Creative Bath Prods., Inc. (In re Measure Control Services, Inc.), 48 B.R. 613, 615 (Bktcy.E.D.N.Y.1985). As a debtor in possession, the debtor in this case has all the rights and powers of a trustee, subject to a few exceptions. 11 U.S.C. § 1107(a). Essentially, the trustee or debtor in possession takes priority over any unenforceable or unper-fected security interests. Pirsig Farms, 46 B.R. at 242. Because this court has already determined that NWNL’s interest in the assignment of rents is unperfected, the question then is whether the debtor in possession may avoid that interest under 11 U.S.C. § 544. The general rule under Minnesota law is that the first lien in point of time takes precedence. Oldewurtel v. Redding, 421 N.W.2d 722, 726 (Minn.1988); Schnirring v. Stubbe, 177 Minn. 441, 443, 225 N.W. 389, 390 (1929). Furthermore, Minnesota law has long held that a lien is not a property interest but rather is collateral for a debt. Application of Gau, 230 Minn. 235, 240, 41 N.W.2d 444, 448 (1950). See Redding, 421 N.W.2d at 726. As the supreme court stated in Gau, “a lien is [in] no sense an estate or interest in the land.” 230 Minn, at 240, 41 N.W.2d at 448. Accordingly, pursuant to § 544(a)(1) the debt- or in possession acquired the status of a lien creditor, with respect to rental income, as of the commencement of the case. As such, applying the general rule of first in time, first in right, NWNL’s inchoate lien is inferior to the debtor in possession’s lien and is avoided by the debtor in possession by operation of § 544(a)(1). F. Conclusion The end result is that none of the rents are cash collateral. That" }, { "docid": "6482591", "title": "", "text": "debtor-in-possession upon commencement of the case takes on a new status as trustee acting on behalf of unsecured creditors and can avoid unperfected liens pursuant to § 544(a). See 11 U.S.C. §§ 1101(1), 1107(a), 544(a). The debtor-in-possession, though physically the same as the debtor, is conceptually separate for purposes of bankruptcy law and is armed with § 544(a) powers without regard to any notice or knowledge of the debtor’s practices. In re Matos, 50 B.R. 742 (N.D.Ala.1985); In re International Gold Bullion Exchange, Inc., 53 B.R. 660 (Bankr.S.D.Fla.1985); In re Great Plains Western Ranch Co., Inc., 38 B.R. 899 (Bankr.C.D.Cal.1984). The debtor-in-possession stands in the same idealized shoes as the trustee, and his status as hypothetical lien creditor remains unaffected by any alleged wrongful acts of the debtor. See In re International Gold Bullion Exchange, Inc. The Bank has cited no case authority in support of its position that debtor here should not be allowed to avoid the Bank’s unperfected lien in his capacity as hypothetical lien creditor. This Court, however, has considered a line of cases in which, in similar fact situations, the doctrine of equitable lien was invoked as a basis for upholding liens that were unperfected in bankruptcy. These cases set forth the rule that where a creditor has done everything reasonable under the circumstances to perfect its lien on a vehicle prior to bankruptcy but is prevented from doing so by a debt- or’s improper behavior, the creditor should not be penalized for the debtor’s actions and the creditor’s lien would, therefore, be valid against the trustee in bankruptcy. See Matter of Rettig, 32 B.R. 523 (Bankr.D.Del.1983); In re Trim-Lean Meat Products, Inc., 10 B.R. 333 (D.Del.1981); see also In re Solar Energy Sales and Service, Inc., 4 B.R. 364 (Bankr.D.Utah 1980). Other courts, while noting the existence of equitable liens under state law, have ruled that such liens would nevertheless be subordinate to the subsequent legal lien of the trustee as hypothetical lien creditor under § 544(a). See Matter of Einoder, 55 B.R. 319 (Bankr.N.D.Ill.1985); In re Earl Roggenbuck Farms, Inc., 51 B.R. 913 (Bankr.E.D.Mich.1985);" }, { "docid": "14669361", "title": "", "text": "to Suffolk County prior to the sale of the Nassau County store. Finally, the district court held that, as to the property in Suffolk County acquired after the sale and as to all Sanyo’s merchandise stored in New Jersey, the application of equitable estoppel would contravene the “strong-arm” powers of Howard, in its capacity as a debtor-in-possession. Because a debtor-in-possession generally has the same rights, powers and duties as a trustee, see 11 U.S.C. § 1107(a); In re Vintero Corp., 735 F.2d 740, 741 (2d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984), and because a trustee may avoid a lien under section 544(a) even where he possesses actual notice of the iien’s existence, the court concluded that “Howard[] has the power, just as would a trustee, to avoid Sanyo’s unper-fected lien,” 91 B.R. at 207. The court quoted In re Brent Explorations, Inc., 31 B.R. 745, 749 (Bankr.D.Colo.1983), as authority for the proposition that one of the purposes of providing the debtor-in-possession with the status of an ideal creditor was “to prevent such defenses as estoppel from being raised.” The court observed that this determination rests firmly with the “conscious decision by Congress to favor the trustee over unperfected creditors, regardless of the particular equities of the case.” 91 B.R. at 208. Sanyo, the court continued, could have protected its interest by taking “precautionary measures” to ensure that the property in fact was delivered to Howard’s locations in New York, where Sanyo filed its security interest. Id. The court thus concluded that “[t]he doctrine of estoppel cannot prevent Howard[] from avoiding Sanyo’s interest under section 544(a).” Id. After judgment was entered and Sanyo filed its notice of appeal, the parties, in an effort to resolve the issue remanded to the bankruptcy court, entered a stipulation providing that no merchandise was shipped to Howard in Suffolk County after the sale of the Nassau County store. Consequently, the only issue remaining for this Court to address is the extent of Sanyo’s interest in the air conditioners located in New Jersey. DISCUSSION Under section 541 of the" }, { "docid": "14061257", "title": "", "text": "a creditor exists; or (3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists. (b) The trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502(e) of this title. 11 U.S.C. § 544. Under § 544 the trustee is accorded avoidance powers the same as if he were a bona fide purchaser of real property or judgment lien creditor. Whenever under applicable law such a creditor or bona fide purchaser might prevail over prior transfers, liens, encumbrances or the like, the trustee, or debtor in possession, will also prevail. 4 Collier on Bankrupt cy, II 544.01, at 544-2 to 3 (L. King 15th ed. 1986). Thus § 544(a) allows a trustee in bankruptcy to avoid liens and security interests against the debtor’s estate which were not properly perfected under state law before the debtor filed bankruptcy. Pirsig Farms, Inc. v. John Deere Co. (In re Pirsig Farms, Inc.), 46 B.R. 237, 240 (D.Minn.1985). See Frier v. Creative Bath Prods., Inc. (In re Measure Control Services, Inc.), 48 B.R. 613, 615 (Bktcy.E.D.N.Y.1985). As a debtor in possession, the debtor in this case has all the rights and powers of a trustee, subject to a few exceptions. 11 U.S.C. § 1107(a). Essentially, the trustee or debtor in possession takes priority over any unenforceable or unper-fected security interests. Pirsig Farms, 46 B.R. at 242. Because this court has already determined that NWNL’s interest in the assignment of rents is unperfected, the question then is whether the debtor in possession may avoid that interest under 11 U.S.C. § 544. The general rule under Minnesota law is that the first" }, { "docid": "14669360", "title": "", "text": "23, 1988, affirmed the bankruptcy court’s determination regarding Sanyo’s security interest in the merchandise stored in Suffolk County, but only as to the merchandise shipped to the Suffolk County locations while Howard also operated its store in Nassau County. Insofar as goods may have been shipped to Suffolk County after the closing of Howard’s Nassau County store, the court held that, pursuant to U.C.C. § 9-401(1)(c), Sa-nyo was required to file a financing statement with the Clerk of Suffolk County to perfect its interest. See In re Knapp, 575 F.2d 341, 344 (2d Cir.1978) (proper place for filing determined at time security interest attaches to collateral); Marine Midland Bank-Eastern Nat’l Ass’n v. Conerty Pontiac-Buick, Inc., 77 Misc.2d 311, 317, 352 N.Y.S.2d 953, 961 (Sup.Ct.1974) (security interest attaches when debtor acquires collateral). Concluding that “Sanyo’s sales and credit departments had actual knowledge that the Nassau County location had been sold,” 91 B.R. at 206, the court rejected Sanyo’s estoppel argument and remanded the matter to the bankruptcy court for a determination of which goods were shipped to Suffolk County prior to the sale of the Nassau County store. Finally, the district court held that, as to the property in Suffolk County acquired after the sale and as to all Sanyo’s merchandise stored in New Jersey, the application of equitable estoppel would contravene the “strong-arm” powers of Howard, in its capacity as a debtor-in-possession. Because a debtor-in-possession generally has the same rights, powers and duties as a trustee, see 11 U.S.C. § 1107(a); In re Vintero Corp., 735 F.2d 740, 741 (2d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984), and because a trustee may avoid a lien under section 544(a) even where he possesses actual notice of the iien’s existence, the court concluded that “Howard[] has the power, just as would a trustee, to avoid Sanyo’s unper-fected lien,” 91 B.R. at 207. The court quoted In re Brent Explorations, Inc., 31 B.R. 745, 749 (Bankr.D.Colo.1983), as authority for the proposition that one of the purposes of providing the debtor-in-possession with the status of an ideal creditor" }, { "docid": "19003542", "title": "", "text": "or not such a creditor exists. 11 U.S.C. § 544(a)(1) (Supp. III 1985). Pursuant to this section, the trustee in bankruptcy can avoid unperfected liens on property belonging to the bankruptcy estate. Matter of Chaseley’s Foods, Inc., 726 F.2d 303, 307 (7th Cir.1983); White & Summers, Uniform Commercial Code § 24-3, at 996-97 (2d ed. 1980). Once the trustee has assumed the status of a hypothetical lien creditor under § 544(a)(1), state law is used to determine what the lien creditor’s priorities and rights are. In re Clifford, 566 F.2d 1023 (5th Cir.1978); In re Gringeri Brothers Transportation Co., 14 B.R. 396 (Bankr.D.Mass.1981); e.g., In re Cushman Bakery, 526 F.2d 23 (1st Cir.1975) (whether security interest has been perfected against trustee in bankruptcy is a question of state law), cert. denied, 425 U.S. 937, 96 S.Ct. 1670, 48 L.Ed.2d 178 (1976). Hence, the bankruptcy court and the district court examined Vermont law to determine what rights the trustee had as a hypothetical lien creditor under § 544(a)(1). The bankruptcy court found, and the district court agreed, that under Vermont law the Howard Bank failed to perfect its security interest in the Kors equipment. Under Article 9 of the Vermont Uniform Commercial Code, a security interest may be perfected by filing a financing statement signed by the debtor. Vt.Stat.Ann. tit. 9A §§ 9-302, 9-402(1), 9-403 (1966). The failure to identify and obtain the signature of a debtor on a financing statement is fatal to the perfection of the security interest. Id. at § 9-402(2). As owner of the collateral, Kors was the debt- or whose signature was necessary on the financing statement for perfection. Indeed, the Bank loaned money for the equipment to Kors and RIDC jointly. Since only RIDC, and not Kors, signed the financing statement, the bankruptcy court found that the Bank did not hold a perfected security interest against Kors in any collateral. 50 B.R. 874, 879 (Bankr.D.Vt.1985). Thus, at the commencement of the bankruptcy case, the Bank had an unper-fected security interest in Kors’ collateral. Since Vermont law gives a lien creditor rights superior to those of" }, { "docid": "1077545", "title": "", "text": "cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984), the Eighth Circuit analyzed the limitation on bankruptcy courts’ equitable powers and held that, “[although a bankruptcy court is essentially a court of equity ... its broad equitable powers may only be exercised in a manner which is consistent with the provisions of the [Bankruptcy] Code.” Id. at 273; see also, In re J.M. Wells, Inc., 575 F.2d 329, 331 (1st Cir.1978); In re Pirsig Farms, Inc., 46 B.R. 237, 240 (D.Minn.1985); 4 Collier on Bankruptcy 11105.02 at 105-7, 8 (15th ed.) (a court must not “ignore, super-cede, suspend or even misconstrue the [Bankruptcy Code] or the' rules”). Thus, if the application of estoppel would contravene a section of the Bankruptcy Code, such application would be inappropriate. In the Court below, Howards argued that the application of estoppel in this case would contravene section 544(a) of the Bankruptcy Code. Section 544 provides that: (a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists; 11 U.S.C. § 544(a) (emphasis added). The phrase “without regard to any knowledge of the trustee” has been interpreted to mean that the trustee can avoid a lien under section 544(a) even where the trustee had actual notice of the lien’s existence. In re Measure Control Devices, Inc., 48 B.R. 613, 615 (Bankr.E.D.N.Y.1985). The trustee, under this section, is accorded the status of a “hypothetical lien creditor” who did not have notice of the improperly filed security interest and thus can act as that lien creditor" }, { "docid": "1077547", "title": "", "text": "to avoid the security interest. Id.; In re Johnson, 28 B.R. 292, 296 (Bankr.N.D.Ill.1983). Therefore, a trustee would be able to avoid Sanyo’s unperfected security interest, even if the trustee had actual knowledge of the interest. Ho-wards, as debtor in possession, has the same rights and powers as a trustee. 11 U.S.C. § 1107(a). Therefore, Howards has the power, just as would a trustee, to avoid Sanyo’s unperfected lien, even though Ho-wards had prior knowledge of the lien's existence. Several courts have examined the applicability of the doctrine of estoppel with respect to the lien avoidance powers of section 544(a). In In re Brent Explorations, Inc., 31 B.R. 745 (Bankr.D.Col.1983), the bankruptcy court held that: “Section 544(a) vests the trustee (or the debtor-in-possession) with the rights of an ideal creditor, without knowledge or notice. One of the purposes for providing the ideal creditor status is to prevent such defenses as estoppel from being raised against the trustee.” Id. at 748-49; see also, In re Pirsig Farms, Inc., 46 B.R. 237, 242 (D.Minn.1985); In re Measure Control Devices, Inc., 48 B.R. 613, 615 (Bankr.E.D.N.Y.1985); In re I.A. Durbin, Inc., 46 B.R. 595, 602 (Bankr.S.D.Fla.1985). In In re Wiggs, 87 B.R. 57 (Bankr.S.D.Ill.1988), the court permitted a debtor-in-possession to defeat the lien of a creditor who was unable to perfect the lien due to the debtor’s wrongful conduct. The court held that a debtor-in-possession’s avoidance powers are unaffected by improper conduct of the debtor or equitable considerations. The reasoning of the Brent and Wiggs Courts is sound. The framers of the code designed this hypothetical lien creditor to have all the characteristics necessary to avoid a fellow creditor’s lien. In fact, knowledge on the part of this ideal creditor that a prior lien existed has been explicitly removed as a factor for consideration. This evinces a conscious decision by Congress to favor the trustee over unperfected creditors, regardless of the particular equities of the case. Such a decision by Congress is reasonable in light of the ability of creditors, selling after-acquired property, to take precautionary measures to ensure that the property is" }, { "docid": "1077542", "title": "", "text": "maintaining a Nassau location by allowing the new owners to continue using its name, by joint advertising, and through the clause in the security agreement that there are no other places of business. Sanyo’s argument is unpersuasive for two reasons. First, Sanyo cannot properly claim to have relied on Howards’ allegedly misleading conduct with respect to continued ownership of the Nassau store in question, since both Sanyo’s sales and credit departments had actual knowledge that the Nassau County location had been sold. Sanyo cannot assert estoppel without proving its own reliance on the alleged misleading conduct. See Wiser v. Lawler, 189 U.S. 260, 23 S.Ct. 624, 47 L.Ed. 802 (1903); 28 Am.Jur.2d Estoppel and Waiver § 80 (1966); 57 N.Y.Jur.2d Estoppel, Ratification, and Waiver § 56 (1986). Second, as discussed further below, with respect to the air conditioners stored in New Jersey, the Bankruptcy Code itself removes the possibility of asserting equitable estoppel against Howards by raising the status of a debtor-in-possession to that of a hypothetical lien creditor. 11 U.S.C. § 544(a); see In re Brent Explorations, Inc., 31 B.R. 745, 748-49 (Bankr.D.Col.1983). Accordingly, with respect to the New York air conditioners, the case is remanded to the Bankruptcy Court for factual determinations as to which air conditioners were either brought to the Suffolk County stores from the Nassau County store, or shipped to the Suffolk County stores before the Nassau County store closed. Sanyo has a perfected security interest in these air conditioners. Sanyo does not have a perfected security interest in any air conditioners that the Bankruptcy Court determines were shipped to the Suffolk County stores after Howards closed its Nassau County store. Air Conditioners Stored in New Jersey Howards argued in the Court below that because Sanyo never filed a financing statement in New Jersey, it does not have a perfected security interest in the air conditioners located in that state. The Bankruptcy Court held that the doctrine of equitable estoppel applies to prevent Ho-wards from claiming that Sanyo’s security interest in the New Jersey air conditioners was not perfected since Sanyo had no imputable knowledge" }, { "docid": "19003543", "title": "", "text": "agreed, that under Vermont law the Howard Bank failed to perfect its security interest in the Kors equipment. Under Article 9 of the Vermont Uniform Commercial Code, a security interest may be perfected by filing a financing statement signed by the debtor. Vt.Stat.Ann. tit. 9A §§ 9-302, 9-402(1), 9-403 (1966). The failure to identify and obtain the signature of a debtor on a financing statement is fatal to the perfection of the security interest. Id. at § 9-402(2). As owner of the collateral, Kors was the debt- or whose signature was necessary on the financing statement for perfection. Indeed, the Bank loaned money for the equipment to Kors and RIDC jointly. Since only RIDC, and not Kors, signed the financing statement, the bankruptcy court found that the Bank did not hold a perfected security interest against Kors in any collateral. 50 B.R. 874, 879 (Bankr.D.Vt.1985). Thus, at the commencement of the bankruptcy case, the Bank had an unper-fected security interest in Kors’ collateral. Since Vermont law gives a lien creditor rights superior to those of the holder of an unperfected security interest, the trustee, pursuant to § 544(a)(1) of the Code, had rights superior to those of the Bank on the date of the bankruptcy filing. Vt.Stat.Ann. tit. 9A § 9-301(1)(b) (1966); see In re Jerome, 31 Bankr. 266 (Bankr.D.Vt.1983); In re Rutland Tile Center, Inc., 5 U.C.C.Rep.Serv. (Callaghan) 1115 (Bankr.D.Vt.1968); see also A. Cohen, Bankruptcy, Secured Transactions and Other Debtor-Creditor Matters 361 n. 4 (1981) (“The trustee has the status of a creditor with a judicial lien as of the time of the commencement of the bankruptcy case, resulting in the trustee having the power to assert priority in the collateral pursuant to U.C.C. § 9-301(1)(b).”) Section 551 of the Code automatically preserves for the benefit of the estate any interest avoided under § 544. “Section 551 ... provide[s] that any transfer of an interest in property avoided under Code Section 544 is preserved for the benefit of the estate.” In re Vermont Fiberglass, Inc., 45 B.R. 603 (Bankr.D.Vt.1984). Applying § 551, the bankruptcy court preserved the Bank’s unperfected" }, { "docid": "10044746", "title": "", "text": "defeat a secured creditor, thereby making the property beneficial to retain in the estate. See Chase Manhattan Bank v. Edmondson (In re Cunningham), 48 B.R. 509 (Bankr.M.D.Tenn.1985); Continental Bank v. Freehling (In re Karl A. Neise, Inc.), 31 B.R. 409 (Bankr.S.D.Fla.1983); In re Manicure, 29 B.R. 248 (Bankr.W.D.Va.1983); In re Anspach, 13 B.R. 208 (Bankr.E.D.Pa.1981); In re Brannan, 5 B.R. 505 (D.V.I.1980). In four other cases, the secured creditor’s lien on the property was subordinated to the trustee’s interest by some other provision of the Code. In re Joliet Will Community Action Agency, 58 B.R. 973 (Bankr.N.D.Ill.1986); In re Air Vermont, Inc., 41 B.R. 486 (Bankr.Vt.1984); First National Exchange Bank v. Kelly (In re Kelly), 21 B.R. 495 (Bankr.W.D.Va.1982); In re Pacific Sunwest Printing, 6 B.R. 408 (Bankr.S.D.Cal.1980). In those cases, the subordination of the secured creditors to the trustee defeated motions for abandonment. Likewise here, § 724(b) would subordinate the City’s lien to the trustee for the administrative creditors, defeating Detroit’s motion for abandonment. This result is also suggested by In re Darnell, 58 B.R. 122 (Bankr.W.D.Ky.1986). Although Darnell did not deal with abandonment, it specifically addressed the effect § 724(b) has on the balance of the Code: “[S]ection 724(b) of the Bankruptcy Code ... modifies the secured claim status of the IRS lien so that it is, for bankruptcy purposes, an unsecured priority tax claim.” Id. at 122-23. Traditionally, administrative expenses were not charged against secured creditors, In re Trim-X, Inc., 695 F.2d 296, 301 (7th Cir.1982), therefore, there was no benefit accruing to the estate absent equity in the property or some exception. But this situation has been expressly changed by the Code, which subordinates the tax lien to the administrative creditors, in effect charging the administrative expense against the secured tax creditor. Because the district court correctly reversed the error of law made by the bankruptcy court in ordering the trustee to abandon property which § 724(b) makes beneficial to the estate, we affirm. . 11 U.S.C. § 554(b) (1986 Supp.) provides: “On request of a party in interest and after notice and a hearing, the" }, { "docid": "1077550", "title": "", "text": "were not debtors in possession and therefore could not employ the lien avoidance powers of section 544(a). See Rule, 38 B.R. at 41; Chase, 37 B.R. at 347. In re Pubs, 618 F.2d 432, also cited by the Court below, was decided under the Bankruptcy Act before it was superseded by the Bankruptcy Code, which considerably expanded the powers of a trustee. See 4 Collier on Bankruptcy if 544.02 (15th Ed.). Thus, reliance on In re Pubs to determine the trustee’s powers under section 544(a) is inappropriate. Since Sanyo did not file financing statements in New Jersey, as required by New Jersey law, N.J.Stat.Ann. § 12A:9-302(1) (West Supp.1988), Sanyo has as unperfect-ed security interest in the air conditioners located there. The doctrine of estoppel cannot prevent Howards from avoiding Sa-nyo’s interest under Section 544(a). The decision of the Bankruptcy Court is affirmed in part and reversed in part. The case is remanded to the Bankruptcy Court for proceedings consistent with this opinion. The Clerk of the Court is directed to return the entire record to the Bankruptcy Court. SO ORDERED." }, { "docid": "14669362", "title": "", "text": "was “to prevent such defenses as estoppel from being raised.” The court observed that this determination rests firmly with the “conscious decision by Congress to favor the trustee over unperfected creditors, regardless of the particular equities of the case.” 91 B.R. at 208. Sanyo, the court continued, could have protected its interest by taking “precautionary measures” to ensure that the property in fact was delivered to Howard’s locations in New York, where Sanyo filed its security interest. Id. The court thus concluded that “[t]he doctrine of estoppel cannot prevent Howard[] from avoiding Sanyo’s interest under section 544(a).” Id. After judgment was entered and Sanyo filed its notice of appeal, the parties, in an effort to resolve the issue remanded to the bankruptcy court, entered a stipulation providing that no merchandise was shipped to Howard in Suffolk County after the sale of the Nassau County store. Consequently, the only issue remaining for this Court to address is the extent of Sanyo’s interest in the air conditioners located in New Jersey. DISCUSSION Under section 541 of the Bankruptcy Code, a debtor’s legal and equitable interests in property, “as of the commencement of the case,” constitute “[property of the estate,” 11 U.S.C. § 541(a)(1). Property in which the debtor holds only legal title and not an equitable interest, however, becomes property of the estate “only to the extent of a 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,” id. § 541(d). That is, the bankruptcy estate does not include “property of others in which the debtor ha[s] some minor interest such as a lien or bare legal title,” United States v. Whiting Pools, Inc., 462 U.S. 198, 204 n. 8, 103 S.Ct. 2309, 2313 n. 8, 76 L.Ed.2d 515 (1983); see 4 Collier on Bankruptcy If 541.13, at 541-75 (15th ed.1989) (estate succeeds only to the title and rights that the debtor possessed); In re Quality Holstein Leasing, 752 F.2d 1009, 1012 (5th Cir.1985) (same). Where the debtor’s “conduct gives rise to the imposition of a constructive" }, { "docid": "1077548", "title": "", "text": "Control Devices, Inc., 48 B.R. 613, 615 (Bankr.E.D.N.Y.1985); In re I.A. Durbin, Inc., 46 B.R. 595, 602 (Bankr.S.D.Fla.1985). In In re Wiggs, 87 B.R. 57 (Bankr.S.D.Ill.1988), the court permitted a debtor-in-possession to defeat the lien of a creditor who was unable to perfect the lien due to the debtor’s wrongful conduct. The court held that a debtor-in-possession’s avoidance powers are unaffected by improper conduct of the debtor or equitable considerations. The reasoning of the Brent and Wiggs Courts is sound. The framers of the code designed this hypothetical lien creditor to have all the characteristics necessary to avoid a fellow creditor’s lien. In fact, knowledge on the part of this ideal creditor that a prior lien existed has been explicitly removed as a factor for consideration. This evinces a conscious decision by Congress to favor the trustee over unperfected creditors, regardless of the particular equities of the case. Such a decision by Congress is reasonable in light of the ability of creditors, selling after-acquired property, to take precautionary measures to ensure that the property is delivered to the debtor at a location where the creditor has filed its security interest. The notion that creditors should exercise diligence in connection with the perfection of a security interest is not novel. See In re J.A. Thompson & Son, 665 F.2d 941, 950-51 (9th Cir.1982); In re Marta Group, Inc., 33 B.R. 634, 639 (Bankr.E.D.Pa.1983). In the case at bar, Sanyo could have protected its interest in after-acquired property by establishing a policy whereby its shipping department would notify its credit department before addressing bills of lading to unapproved shipping destinations. The burden of this type of precautionary behavior when after-acquired property is involved is minimal compared to the heavier burden on third party creditors who may be potentially damaged when a proper filing has not been completed. The cases relied upon by the Bankruptcy Court to support its application of the doctrine of estoppel in no way undermine the conclusion reached by this Court. In re Rule, 38 B.R. 37 (Bankr.D.Vt.1983), and In re Chase, 37 B.R. 345 (Bankr.D.Vt.1983), involved debtors who" }, { "docid": "12804593", "title": "", "text": "99, 104 (2d Cir.2006) (emphasis added). Where goods are consigned to the debtor prepetition, they might be liquidated for the benefit of other creditors pursuant to the trustee’s power under § 544(a). See In re Tristar Automotive Group, Inc., 141 B.R. 41 (Bankr.S.D.N.Y.1992) (“[A debtor-in-possession under § 1107] may assert the so-called strong-arm avoiding powers under 11 U.S.C. § 544(a) and set aside an unperfected security interest.... The fact that [the creditor] retained the title documents for the automobiles in question did not prevent the vehicles from becoming property of the estate within the meaning of 11 U.S.C. § 541.”); Valley Media, 279 B.R. at 132 (“No knowledge of the pre-petition debtor regarding the consignments is imputed to the Debtor in Possession.... [A] consign- or will not prevail over a trustee exercising its powers pursuant to 11 U.S.C. § 544(a).”); In re Morgansen’s LTD, 302 B.R. 784 (Bankr.E.D.N.Y.2003) (“If a person takes goods to one who is considered a consignee (a ‘buyer’ for resale) and that buyer files for bankruptcy relief, the buyer/debtor’s trustee will take the goods as property of the debtor’s estate. Under section 544(a) of the Bankruptcy Code, these goods may be sold by debtor’s trustee.”). A chapter 11 debtor that remains in control of its bankruptcy case is called a debtor-in-possession, which may exercise a trustee’s avoidance powers under § 544. See 11 U.S.C. §§ 1101, 1107. In the matter at bar, the Court must determine whether to order the Trust to arbitration with Kraken pursuant to the Jersey Law Clause. The Court denies Kraken’s motion. The bankruptcy court is the proper forum to determine whether the Botticelli is property of the estate, as one element of an action to avoid an unper-fected security interest, which is a core proceeding. The Trust is not a party to the consignment agreement and is not bound by the Jersey Law Clause, because it asserts rights derived as a hypothetical judicial lien creditor, which stems from the Bankruptcy Code, and as assignee of the Bank. With respect to arbitration, a bankruptcy court may decline to enforce an arbitration clause" }, { "docid": "14669352", "title": "", "text": "(1982 & Supp. Ill 1985). Although it never filed any financing statements in New Jersey, Sanyo moved for relief from the automatic stay imposed by 11 U.S.C. § 362 (1982 & Supp. Ill 1985) to enable it to proceed against Howard’s inventory. Invoking the doctrine of equitable estoppel, the bankruptcy court determined, inter alia, that Sanyo possessed the rights of a holder of a validly perfected security interest in the air conditioners stored in New Jersey, and that Sanyo was entitled to an order vacating the automatic stay or to adequate protection of its interest. See 69 B.R. 1015 (Bankr.E.D.N.Y. 1987). The district court reversed this part of the bankruptcy court’s order, holding that equitable estoppel was ineffective against Howard’s “strong-arm” powers under 11 U.S.C. § 544 (1982 & Supp. Ill 1985) as a debtor-in-possession. See 91 B.R. 204 (E.D.N.Y.1988). Because we look to 11 U.S.C. § 541 (1982 & Supp. Ill 1985) to impress a constructive trust in Sanyo’s favor, we reverse the judgment of the district court and hold that Sanyo’s interest in the collateral is superior to that of Howard. BACKGROUND Howard, a retailer of home appliances, began purchasing appliances from Sanyo in March 1984. The parties entered into a security agreement on March 12 of that year, giving Sanyo a security interest in all of the goods possessed or acquired by Howard that were manufactured or sold by, or acquired from, Sanyo. Sanyo was given also an interest in the proceeds from the sale of those goods. The agreement provided that “[t]he collateral will be kept at the debtor’s place of business located at the address as shown at the beginning of this agreement; and that there are no other places of business of debtor.” At that time, Howard operated only one store, located in Nassau County, New York, the address shown on the agreement. In order to perfect its security interest, Sanyo filed a UCC-1 Financing Statement with the Clerk of Nassau County and the Secretary of State of New York on March 30, 1984. Howard opened a second store, in April 1984, and a" }, { "docid": "14669351", "title": "", "text": "MINER, Circuit Judge: Plaintiff-appellant Sanyo Electric, Inc. (“Sanyo”) appeals from the portion of a judgment of the United States District Court for the Eastern District of New York (Wexler, J.) that reversed an order of the United States Bankruptcy Court for the Eastern District of New York (Holland, J.). Sanyo had entered into a security agreement with defendant-appellee Howard’s Appliance Corp. (“Howard”), under the terms of which Howard gave Sanyo a security interest in all Sanyo air conditioners (“collateral”) possessed or thereafter acquired by Howard. As the agreement required Howard to keep the air conditioners at its store in Nassau County, New York, Sanyo perfected its security interest in New York only. Howard later began to store the air conditioners at a warehouse in New Jersey without informing Sanyo. Approximately six months after it began to warehouse the air conditioners in New Jersey, Howard filed a voluntary Chapter 11 petition with the Bankruptcy Court in the Eastern District of New York; Howard continued thereafter in business as a debt- or-in-possession, see 11 U.S.C. § 1107 (1982 & Supp. Ill 1985). Although it never filed any financing statements in New Jersey, Sanyo moved for relief from the automatic stay imposed by 11 U.S.C. § 362 (1982 & Supp. Ill 1985) to enable it to proceed against Howard’s inventory. Invoking the doctrine of equitable estoppel, the bankruptcy court determined, inter alia, that Sanyo possessed the rights of a holder of a validly perfected security interest in the air conditioners stored in New Jersey, and that Sanyo was entitled to an order vacating the automatic stay or to adequate protection of its interest. See 69 B.R. 1015 (Bankr.E.D.N.Y. 1987). The district court reversed this part of the bankruptcy court’s order, holding that equitable estoppel was ineffective against Howard’s “strong-arm” powers under 11 U.S.C. § 544 (1982 & Supp. Ill 1985) as a debtor-in-possession. See 91 B.R. 204 (E.D.N.Y.1988). Because we look to 11 U.S.C. § 541 (1982 & Supp. Ill 1985) to impress a constructive trust in Sanyo’s favor, we reverse the judgment of the district court and hold that Sanyo’s interest in" }, { "docid": "1077549", "title": "", "text": "delivered to the debtor at a location where the creditor has filed its security interest. The notion that creditors should exercise diligence in connection with the perfection of a security interest is not novel. See In re J.A. Thompson & Son, 665 F.2d 941, 950-51 (9th Cir.1982); In re Marta Group, Inc., 33 B.R. 634, 639 (Bankr.E.D.Pa.1983). In the case at bar, Sanyo could have protected its interest in after-acquired property by establishing a policy whereby its shipping department would notify its credit department before addressing bills of lading to unapproved shipping destinations. The burden of this type of precautionary behavior when after-acquired property is involved is minimal compared to the heavier burden on third party creditors who may be potentially damaged when a proper filing has not been completed. The cases relied upon by the Bankruptcy Court to support its application of the doctrine of estoppel in no way undermine the conclusion reached by this Court. In re Rule, 38 B.R. 37 (Bankr.D.Vt.1983), and In re Chase, 37 B.R. 345 (Bankr.D.Vt.1983), involved debtors who were not debtors in possession and therefore could not employ the lien avoidance powers of section 544(a). See Rule, 38 B.R. at 41; Chase, 37 B.R. at 347. In re Pubs, 618 F.2d 432, also cited by the Court below, was decided under the Bankruptcy Act before it was superseded by the Bankruptcy Code, which considerably expanded the powers of a trustee. See 4 Collier on Bankruptcy if 544.02 (15th Ed.). Thus, reliance on In re Pubs to determine the trustee’s powers under section 544(a) is inappropriate. Since Sanyo did not file financing statements in New Jersey, as required by New Jersey law, N.J.Stat.Ann. § 12A:9-302(1) (West Supp.1988), Sanyo has as unperfect-ed security interest in the air conditioners located there. The doctrine of estoppel cannot prevent Howards from avoiding Sa-nyo’s interest under Section 544(a). The decision of the Bankruptcy Court is affirmed in part and reversed in part. The case is remanded to the Bankruptcy Court for proceedings consistent with this opinion. The Clerk of the Court is directed to return the entire record to" } ]

[ { "docid": "22549081", "title": "", "text": "or statute, a tribe has the power to determine tribe membership, Cherokee Intermarriage Cases, 203 U. S. 76; Roff v. Burney, 168 U. S. 218, 222-223; to regulate domestic relations among tribe members, Fisher v. District Court, 424 U. S. 382; cf. United States v. Quiver, 241 U. S. 602; and to prescribe rules for the inheritance of property. Jones v. Meehan, 175 U. S. 1, 29; United States ex rel. Mackey v. Coxe, 18 How. 100. See infra, at 326. The first treaty was signed at Canyon de Chelly in 1849, and ratified by Congress in 1850. 9 Stat. 974. The second treaty was signed and ratified in 1868. 15 Stat. 667. Title 18 U. S. C. § 1152 (1976 ed.) now provides: “Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. \"This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to, any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulation, the exclusive jurisdiction over such offenses is or may be secured to' the Indian tribes respectively.” Despite the statute's broad language, it does not apply to crimes committed by non-Indians against non-Indians, which are subject to state jurisdiction. United States v. McBratney, 104 U. S. 621. This statute is not applicable to the present case. The Major Crimes Act, under which the instant prosecution was brought, was enacted in 1885. Act of Mar. 3, 1885, § 9, 23 Stat. 385. It does not contain any exception for Indians punished under tribal law. We need not decide whether this “ 'carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes' to punish Indians for crimes committed on Indian land,’ ” United States v. Antelope, 430 U. S. 641," } ]

[ { "docid": "9692434", "title": "", "text": "State v. Burnett, 671 P.2d 1165, 1166-68 (Okla.Crim.App.1983), which held that state criminal jurisdiction over Indian country is precluded unless state has previously manifested by affirmative political action its intent to assume jurisdiction pursuant to 25 U.S.C. § 1321(a)), cert. denied, 476 U.S. 1106, 106 S.Ct. 1952, 90 L.Ed.2d 361 (1986); Langley v. Ryder, 778 F.2d 1092, 1095-96 (5th Cir.1985) (once land is determined to be Indian country, state criminal jurisdiction is preempted on subjects relating to Indians, tribes, and their property, absent the consent of Congress to such jurisdiction); see, e.g., Bartlett v. Solem, 691 F.2d 420, 421 (8th Cir.1982) (en banc) (affirming grant of habeas corpus petition on ground that state lacked jurisdiction to prosecute tribal member for offense committed within Indian country), aff'd, 465 U.S. 463, 467 n. 8, 104 S.Ct. 1161, 1164 n. 8, 79 L.Ed.2d 443 (1984) (noting exclusive federal and tribal criminal jurisdiction under §* 1152, 1153); see also Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665, 668 (10th Cir.1980) (\"States have no authority over Indians in Indian country unless it is expressly conferred by Congress\"). The government argues against application of the general exclusion of state jurisdiction over Indian country on two grounds. First, the government maintains that this case falls within the exception to exclusive federal and tribal jurisdiction established in United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881). Subsequent case law, however, has for some time quite clearly limited the McBratney exception to crimes committed by non-Indians against non-Indians, see, e.g., United States v. Antelope, 430 U.S. 641, 643 n. 2, 648 n. 9, 97 S.Ct. 1395, 1397 n. 2, 1399-1400 n. 9, 51 L.Ed.2d 701 (1977); Williams v. United States, 327 U.S. 711, 714-15 n. 10, 66 S.Ct. 778, 780 n. 10, 90 L.Ed. 962 (1946); Donnelly v. United States, 228 U.S. 243, 271-72, 33 S.Ct. 449, 458-59, 57 L.Ed. 820 (1913), and the government failed to establish either of these conjunctive factual predicates below. Second, the government invokes Fed.R. Crim.P. 41, which provides for state court issuance of a federal search warrant “upon request of a federal" }, { "docid": "16744000", "title": "", "text": "tribal courts.” 430 U.S. at 643 n. 2, 97 S.Ct. at 1397 n. 2. See also United States v. Johnson, 637 F.2d 1224, 1231 (9th Cir.1980); United States v. Smith, 562 F.2d 453, 457 (7th Cir.1977), cert. denied, 434 U.S. 1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1978). Thus, under 18 U.S.C. § 1152, if the crime was committed by one Indian against another Indian, the tribal court would retain jurisdiction. . Rev.Stat. § 2145 provided that “except as to crimes the punishment of which is expressly provided for in this Title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.” Famous Smith v. United States, 151 U.S. at 53, 14 S.Ct. at 235. Rev.Stat. § 2146 provided that \"the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offence in the Indian country who has been punished by the local law of the tribe, nor to any case where by treaty stipulations, the exclusive jurisdiction over such offences is or may be secured to the Indian tribes respectively.” Id. . We note that in Henry v. United States, 432 F.2d 114 (9th Cir. 1970), modified on other grounds, 434 F.2d 1283 (9th Cir.1971), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971), the Government prosecuted a rape charge under 18 U.S.C. § 1152, even though rape was one of the fourteen enumerated crimes of the Major Crimes Act and thus should have been prosecuted under 18 U.S.C. § 1153. For purposes of 18 U.S.C. § 1152, the court instructed the jury as follows: \"First: that the offense was committed within the Indian Country as they find in these instructions. Second: that the defendant is an Indian and the victim is not an Indian. Third: that the defendant had sexual intercourse with the victim. And Fourth: that the act" }, { "docid": "23398063", "title": "", "text": "court, the Ninth Circuit vacated the judgment and ordered the indictment dismissed. It reasoned that because “[t]he indictment did not allege that appellant or the victim of the accused was an Indian[,][i/i thus failed to state that any basis for federal jurisdiction existed in this case.... ” Id. at 356 (emphasis added). In United States v. Torres, 733 F.2d 449 (7th Cir.1984), the Seventh Circuit addressed a defendant’s challenge to instructions that failed to inform the jury that, in order to find him guilty of conspiring to commit murder in Indian country in violation of 18 U.S.C. §§ 1117 and 1152, it was required to find that the victim was a non-Indian. Citing Lucas and Smith, the court concluded that, “[f]or purposes of 18 U.S.C. § 1152, the Government had to prove not only that [the defendants] were Indians but also that the victim ... was a non-Indian.” Id. at 457; see also id. at 454 (stating that, “[i]n order to prosecute under 18 U.S.C. § 1152, the Government must prove, as a jurisdictional requisite, that the crime was in violation of a Federal enclave law, and that the crime occurred between an Indian and a non-Indian within Indian country”) (emphasis added). Hilderbrand and Torres thus impose the burden of alleging the victim’s status on the government — in the indictment and at trial. Just as the older Supreme Court decisions in Lucas and Smith, neither case suggests that the defendant bears the initial burden of raising this issue. Both cases indicate that the mere allegation that the defendant has committed a crime in Indian country is not sufficient to establish federal jurisdiction under § 1152. In addition to these decisions, the policies of protecting state and tribal sovereignty support the view that the status of the victim is an element. See McBratney, 104 U.S. at 624 (concluding that a state’s admission to the union upon equal footing with the original states provided it with criminal jurisdiction over a crime involving non-Indians); United States v. Romero, 136 F.3d 1268, 1270 n. 2 (10th Cir.1998) (noting that the § 1152 limitations" }, { "docid": "16743974", "title": "", "text": "See also United States v. Dodge, 538 F.2d at 786; F. Cohen, Handbook of Federal Indian Law, 23-27 (1982). In the instant case, the trial judge instructed the jury that in order to be considered an Indian, a person must have some degree of Indian blood and must be recognized as an Indian by the Indian tribe and/or the Federal government. Accordingly, we hold that the district court properly instructed the jury on the issue of what constitutes an Indian for purpose of 18 U.S.C. § 1153, and we will not disturb the jury’s finding that appellants Fish and Torres were, in fact, Indians. The appellants next jurisdictional claim is that the district court erred by failing to instruct the jury that in order to find Fish and Torres guilty of conspiracy to commit murder in violation of 18 U.S.C. § 1152, the jury had to find that Peterson was a non-Indian. The statute in question, 18 U.S.C. § 1152, provides: “Except as otherwise provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” According to the appellants, the second paragraph of 18 U.S.C. § 1152 requires the Government to prove as a jurisdictional element of its case, that the conspiracy to commit murder was not committed by one Indian against the person or property of another Indian. Appellants claim that Peterson’s non-Indian status was a question of fact to be decided by the jury and the district court’s failure to instruct the jury on this jurisdictional element constitutes plain error. In Famous Smith" }, { "docid": "16743966", "title": "", "text": "The trial judge entered judgments of conviction and sentenced each appellant to three consecutive terms of life imprisonment. On appeal, Fish and Torres contend that the Government’s evidence was insufficient to prove that the crimes were punishable in Federal court and, in the alternative, that the sentences imposed by the district court were improper. II The appellants were prosecuted for first degree murder and kidnaping under the Major Crimes Act, 18 U.S.C. § 1153, and for conspiracy to commit murder under the General Crimes Act, 18 U.S.C. § 1152. In order to prosecute un der 18 U.S.C. § 1153, the Government must prove, as a jurisdictional requisite, that an Indian committed one of fourteen enumerated crimes against another Indian, or any person, within Indian country. See United States v. Antelope, 430 U.S. 641, 646-47 n. 7, 97 S.Ct. 1395, 1398-99 n. 7, 51 L.Ed.2d 701 (1977); United States v. Jewett, 438 F.2d 495, 497 (8th Cir.), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 117 (1971); F. Cohen, Handbook of Federal Indian Law, 300-04 (1982). In order to prosecute under 18 U.S.C. § 1152, the Government must prove, as a jurisdictional requisite, that the crime was in violation of a Federal enclave law, and that the crime occurred between an Indian and a non-Indian within Indian country. See United States v. Wheeler, 435 U.S. 313, 324-25, 98 S.Ct. 1079, 1086-87, 55 L.Ed.2d 303 (1978); United States v. Blue, 722 F.2d 383, 384-85 (8th Cir.1983); United States v. John, 587 F.2d 683, 686-87 (5th Cir.) (on remand from the United States Supreme Court), cert. denied, 441 U.S. 925, 99 S.Ct. 2036, 60 L.Ed.2d 399 (1979); F. Cohen, Handbook of Federal Indian Law, 287-300 (1982). The appellants contend that the evidence introduced at trial was insufficient to prove the jurisdictional requisite of their Indian status for purposes of 18 U.S.C. § 1153, and further, that the district court erred by failing to instruct the jury on the jurisdictional requisite of Peterson’s non-Indian status for purposes of 18 U.S.C. § 1152. In addition, the appellants claim that the evidence clearly showed" }, { "docid": "23398121", "title": "", "text": "Defendant with the sole crime for which the jury convicted him, i.e., setting fire to a dwelling within the confines of the Tesuque pueblo in violation of 18 U.S.C. §§ 81 & 1152. This is not a case where the indictment charged Defendant with one crime and the jury convicted him of another. . Because Fed.R.Crim.P. 12(b)(2) requires us to consider \"at any time during the pen-dency of the proceedings” a challenge to an indictment for failure to state an offense, we believe the harmless error rather than plain error standard of review should apply to a belated challenge in all cases. See Fed. R.Crim.P. 52. . Section 1152's earliest predecessors are late eighteenth and early nineteenth century statutes and treaties providing federal court jurisdiction over criminal offenses which non-Indians committed against Indians within tribal territory. See Felix S. Cohen, Handbook of Federal Indian Law, 287-88 (1982 ed.). The primary purpose of these laws was to protect Indians from their hostile white neighbors. See Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L.Rev. 503, 521 n. 88 (1977). An Act of March 3, 1817, Ch. 92, § 2, 3 Stat. 383, provided for federal enclave jurisdiction over crimes committed both by Indians and non-Indians except for crimes “by one Indian against another, within any Indian boundary.” Since that time, the law has undergone numerous revisions until its present codification as 18 U.S.C. § 1152 by an Act of June 25, 1948, ch. 645, 62 Stat. 653, 757. See United States v. Cowboy, 694 F.2d 1228, 1232-33 (10th Cir.1982) (setting forth the history of § 1152). The primary purpose of § 1152 is to recognize the federal government’s trust responsibility towards Indians by extending federal law enforcement to Indian country. See Clinton, supra at 521 n. 88. . Federal crimes \"are solely creatures of statute.” Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Subject to constitutional limitations not implicated here, Congress, not a federal appellate court, is authorized to define the elements of a federal criminal" }, { "docid": "155549", "title": "", "text": "as an Indian in Indian country he was subject to federal jurisdiction and the more severe penalty, while a non-Indian charged in the same circumstances would have been subject only to state jurisdiction and the lighter penalty. To sustain a claimed denial of constitutional rights, defendant must demonstrate a legal injury. United States v. Maestas, 523 F.2d 316, 322 (10th Cir.1975). Defendant here was not subject to different treatment than that to which he would have been subject had he been a non-Indian. Defendant and his wife were both enrolled members of the Jicarilla Apache Tribe. The shooting of defendant's wife occurred on the Jicarilla reservation. A non-Indian charged with shooting defendant’s Indian wife in Indian country would be subject to federal jurisdiction and the more severe federal penalty under 18 U.S.C. § 1152, just as defendant was under 18 U.S.C. § 1153. Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913) (affirming the federal conviction of a non-Indian for the murder of an Indian, pursuant to a predecessor to 18 U.S.C. § 1152). Thus, defendant’s equal protection challenge to the constitutionality of the federal scheme under which he was tried and found guilty must fail. AFFIRMED. . United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977), cited by the parties on the equal protection claim, involves disparate treatment of Indians and non-Indians when the victim is a non-Indian. United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881), judicially created an exception to federal jurisdiction over crimes committed in Indian country, for crimes committed by non-Indians against other non-Indians. Although McBratney has been criticized, see F. Cohen, Handbook of Federal Indian Law 264-66 (1982 ed.), the decision has been consistently followed by the Supreme Court in other cases involving crimes in Indian country by non-Indians against non-Indians. Antelope, 430 U.S. at 643 n. 2, 648 n. 9, 97 S.Ct. at 1397 n. 2, 1399 n. 9. In Antelope the Court dismissed disparate treatment concerns raised by its adherence to the McBratney precedent. Id. at 646, 97 S.Ct. at" }, { "docid": "23277302", "title": "", "text": "the necessary elements to be proved by the Government: Broncheau was an Indian who had stabbed a non-Indian within the boundaries of the Nez Perce Indian Reservation. Unless § 1153 is void for vagueness, see part II infra, the indictment is sufficient because it closely follows the language of the statute. See United States v. Anderson, 532 F.2d 1218, 1222 (9th Cir. 1976), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976). Moreover, although an allegation of enrollment may be sufficient for purposes of alleging federal jurisdiction, see e. g., United States v. Heath, 509 F.2d 16, 20 (9th Cir. 1974), enrollment has not yet been held to be an absolute requirement of federal jurisdiction. See United States v. Antelope, 430 U.S. 641, 646 n. 7, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). Nor should it be. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative. See United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir. 1977), cert. denied, - U.S. -, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978); United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974), vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975); Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938); F. Cohen, Handbook of Federal Indian Law 2-5 (1942). An indictment must state the essential facts to apprise the defendant of the charges against him so that the defendant may prepare a defense, but the indictment may be construed to include facts necessarily implied by the allegations. United States v. Anderson, 532 F.2d at 1222; United States v. Heath, 509 F.2d at 20. The purpose of an indictment was served here. Broneheau had adequate notice of his classification as an Indian. The allegation encompassed by implication those facts material to proving that an individual is an Indian, e. g., enrollment, blood quantum, residence. Alleging that Broneheau was an Indian was sufficient for purposes of federal jurisdiction under § 1153. Further refinement was not required. II. Vagueness of" }, { "docid": "16743967", "title": "", "text": "300-04 (1982). In order to prosecute under 18 U.S.C. § 1152, the Government must prove, as a jurisdictional requisite, that the crime was in violation of a Federal enclave law, and that the crime occurred between an Indian and a non-Indian within Indian country. See United States v. Wheeler, 435 U.S. 313, 324-25, 98 S.Ct. 1079, 1086-87, 55 L.Ed.2d 303 (1978); United States v. Blue, 722 F.2d 383, 384-85 (8th Cir.1983); United States v. John, 587 F.2d 683, 686-87 (5th Cir.) (on remand from the United States Supreme Court), cert. denied, 441 U.S. 925, 99 S.Ct. 2036, 60 L.Ed.2d 399 (1979); F. Cohen, Handbook of Federal Indian Law, 287-300 (1982). The appellants contend that the evidence introduced at trial was insufficient to prove the jurisdictional requisite of their Indian status for purposes of 18 U.S.C. § 1153, and further, that the district court erred by failing to instruct the jury on the jurisdictional requisite of Peterson’s non-Indian status for purposes of 18 U.S.C. § 1152. In addition, the appellants claim that the evidence clearly showed that the conspiracy to commit murder and the kidnaping originated in non-Indian country, and thus should have been prosecuted in the Wisconsin state court system. We initially address the appellants’ jurisdictional claim under 18 U.S.C. § 1153, which provides: “Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder ... kidnaping ... within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” According to this language, in order to prosecute the appellants under 18 U.S.C. § 1153, the Government had to establish that the appellants were Indians who committed murder and kidnaping against an Indian, or any other person, within Indian country. In the instant case, the indictment charged that appellants Fish and Torres were “Indians” who committed first degree murder in violation of 18 U.S.C. § 1111, and kidnaping in violation of 18 U.S.C. § 1201, against the person of Thomas" }, { "docid": "16743965", "title": "", "text": "professor of pathology at the University of Wisconsin-Madison Medical School, performed an autopsy and determined that the person, a Caucasian identified by the Federal Bureau of Investigation as a Thomas Peterson, died of “multiple modes of homicidal assault.” Dr. Huntington listed those modes specifically as “[b]lunt injury, drowning while restrained, deep cutting in the abdomen, and strangulation.” Dr. Huntington stated that due to the amount of water and debris in the victim’s lungs, Peterson was still alive when he was submerged beneath the water. On August 25, 1982, a Federal Grand Jury returned a three count indictment against Tony Fish and Ramon Torres for first degree murder in violation of 18 U.S.C. §§ 1111, 1153, conspiracy to commit murder in violation of 18 U.S.C. §§ 1117, 1152, and kidnaping in violation of 18 U.S.C. §§ 1201, 1153. Following a trial in the United States District Court for the Eastern District of Wisconsin, the jury found appellants Fish and Torres guilty of conspiracy to commit murder, kidnaping, and the lesser included offense of second degree murder. The trial judge entered judgments of conviction and sentenced each appellant to three consecutive terms of life imprisonment. On appeal, Fish and Torres contend that the Government’s evidence was insufficient to prove that the crimes were punishable in Federal court and, in the alternative, that the sentences imposed by the district court were improper. II The appellants were prosecuted for first degree murder and kidnaping under the Major Crimes Act, 18 U.S.C. § 1153, and for conspiracy to commit murder under the General Crimes Act, 18 U.S.C. § 1152. In order to prosecute un der 18 U.S.C. § 1153, the Government must prove, as a jurisdictional requisite, that an Indian committed one of fourteen enumerated crimes against another Indian, or any person, within Indian country. See United States v. Antelope, 430 U.S. 641, 646-47 n. 7, 97 S.Ct. 1395, 1398-99 n. 7, 51 L.Ed.2d 701 (1977); United States v. Jewett, 438 F.2d 495, 497 (8th Cir.), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 117 (1971); F. Cohen, Handbook of Federal Indian Law," }, { "docid": "16744001", "title": "", "text": "committing any offence in the Indian country who has been punished by the local law of the tribe, nor to any case where by treaty stipulations, the exclusive jurisdiction over such offences is or may be secured to the Indian tribes respectively.” Id. . We note that in Henry v. United States, 432 F.2d 114 (9th Cir. 1970), modified on other grounds, 434 F.2d 1283 (9th Cir.1971), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971), the Government prosecuted a rape charge under 18 U.S.C. § 1152, even though rape was one of the fourteen enumerated crimes of the Major Crimes Act and thus should have been prosecuted under 18 U.S.C. § 1153. For purposes of 18 U.S.C. § 1152, the court instructed the jury as follows: \"First: that the offense was committed within the Indian Country as they find in these instructions. Second: that the defendant is an Indian and the victim is not an Indian. Third: that the defendant had sexual intercourse with the victim. And Fourth: that the act was committed forcibly and against the will of the victim.” (emphasis added). 432 F.2d at 117 n. 1. . In United States v. Sosseur, 181 F.2d 873, 875 (7th Cir.1950), this court referred to the three exceptions contained in the second paragraph of 18 U.S.C. § 1152 as \"defenses.\" Though the use of the term \"defenses” appears to confuse the burden of proof on the issue of non-Indian status under 18 U.S.C. § 1152, the court cleared that confusion when it later, in the same opinion, referred to the three exceptions as \"three conditions.” Indeed, for purposes of 18 U.S.C. § 1152, the Government must satisfy the first \"condition” and prove that the \"crime was interracial.” F. Cohen, Handbook of Federal Indian Law, 301 n. 157 (1982). See also United States v. Wheeler, 435 U.S. at 324-25, 98 S.Ct. at 1086-87. . Between August 1954, and March 1976, the State of Wisconsin had criminal jurisdiction over the Menominee Indian Reservation. See 18 U.S.C. § 1162 (1982). Pursuant to 25 U.S.C. § 1323 (1982), the State" }, { "docid": "16743976", "title": "", "text": "v. United States, 151 U.S. 50, 14 S.Ct. 234, 38 L.Ed. 67 (1894), the United States Supreme Court interpreted Rev.Stat. §§ 2145, 2146, the predecessor of 18 U.S.C. § 1152, see United States v. Cowboy, 694 F.2d 1228, 1232-33 (10th Cir. 1982), and stated:- “That [the victim] was a white man, and not an Indian, was a fact which the government was bound to establish, and if it failed to introduce any evidence upon that point, the defendant was entitled to an instruction to that effect.” 151 U.S. at 55, 14 S.Ct. at 235, 38 L.Ed. 67. Two years later, the Court, in Lucas v. United States, 163 U.S. 612, 16 S.Ct. 1168, 41 L.Ed. 282 (1896), again interpreted Rev. Stat. §§ 2145, 2146 and stated that “[t]he burden of proof was on the government to sustain the jurisdiction of the court by evidence as to the status of the deceased, and the question should have gone to the jury as one of fact and not of presumption.” 163 U.S. at 617, 16 S.Ct. at 1170. Based upon the Court’s foregoing analysis of Rev. Stat. §§ 2145, 2146; the predecessor of 18 U.S.C. § 1152, it is apparent that for purposes of 18 U.S.C. § 1152, the jury must determine, as a question of fact, the victim’s status as an Indian or non-Indian. See also 42 C.J.S. Indians § 83(a) (1944). In the instant case, the district court instructed the jury that: “In order to establish the offense of conspiracy, the government must prove these elements beyond a reasonable doubt, one, that the alleged conspiracy existed, and, two, that an overt action was committed in furtherance of the conspiracy, three, that the defendant knowingly and intentionally became a member of the conspiracy, and, of course, four that the defendant is an Indian and, five, that the conspiracy occurred within Indian country.” For purposes of 18 U.S.C. § 1152, the Government had to prove not only that Fish and Torres were Indians but also that the victim, Peterson, was a non-Indian. See F. Cohen, Handbook of Federal Indi an Law, 301" }, { "docid": "7197676", "title": "", "text": "presumed.’ ” Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57 (1969) (quoting Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943)); United States v. Wolters, 656 F.2d 523, 526 (9th Cir.1981). The fact proved is sufficient to support the inference of intent beyond a reasonable doubt. See County Court of Ulster County v. Allen, 442 U.S. 140, 166, 99 S.Ct. 2213, 2229, 60 L.Ed.2d 777 (1979); see McGuinn v. Crist, 657 F.2d 1107, 1108 (9th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1614, 71 L.Ed.2d 850 (1982). AFFIRMED. . 18 U.S.C. § 1152 provides: Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. . In Heath, the defendant was a Klamath Indian who killed an Indian of the Warm Springs Tribe on the latter’s reservation. Heath was indicted and convicted of violating the Major Crimes Act, 18 U.S.C. § 1153. On appeal, she contended that the district court lacked jurisdiction under section 1153 because she was a terminated Klamath Indian, see 25 U.S.C. § 564q, and hence no longer an Indian. This court agreed that Heath had lost her Indian legal status and that section 1153 did not confer federal jurisdiction. 509 F.2d at 19. However, we held that when a non-Indian defendant had committed a crime against an Indian victim on a reservation, the Federal Enclaves Act could confer jurisdiction, even though the indictment did not mention section 1152. Id. at 20 &" }, { "docid": "23059627", "title": "", "text": "See also William C. Canby, Jr., American Indian Law 133 (4th ed.2004). Today, by virtue of the interplay between the Indian Country Crimes Act or Federal Enclave Act, 18 U.S.C. § 1152, and the Major Crimes Act, 18 U.S.C. § 1153, federal court jurisdiction extends to certain major crimes committed by an Indian against another Indian, or by an Indian in Indian country, see United States v. Bruce, 394 F.3d 1215, 1220 (9th Cir.2005); United States v. Anderson, 391 F.3d 1083, 1085 n. 3 (9th Cir.2004), and by virtue of decisional law, federal court jurisdiction extends to intra-Indian violations of federal criminal laws of general, nationwide applicability. Id. at 1085-86; United States v. Smith, 387 F.3d 826, 829 (9th Cir.2004) (stating that federal criminal jurisdiction extends to intra-Indian violations of 18 U.S.C. § 1513(b), retaliating against a witness, as it is a statute of nationwide applicability); United States v. Errol D., Jr., 292 F.3d 1159, 1164-65 (9th Cir.2002) (observing that the federal government could have charged Indian defendant who burglarized Bureau of Indian Affairs facilitates located in Indian country with 18 U.S.C. § 641, theft of government property); United States v. Begay, 42 F.3d 486, 499 (9th Cir.1994) (holding that a violation of 18 U.S.C. § 371, conspiracy, “applies equally to everyone everywhere within the United States, including Indians in Indian country”). Mitchell maintains that the Major Crimes Act is the sole source of federal criminal jurisdiction over intra-Indian crimes, and that, because carjacking resulting in death is not one of the crimes identified in the Act, he cannot be prosecuted for it in federal court. However,-we have previously rejected this argument. See, e.g., United States v. Juvenile Male, 118 F.3d 1344, 1350-51 (9th Cir.1997) (holding that the district court could properly exercise jurisdiction over the charged federal criminal offense of general applicability, despite its not being enumerated in the Major Crimes Act, in an incident occurring between Indians in Indian country). Mitchell’s suggestion that Juvenile Male is contrary to two earlier Supreme Court opinions, United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977), and" }, { "docid": "16743999", "title": "", "text": "to prove that the Tony Fish and Ramon Torres appearing on the Menominee Tribal Roll and the shared dividend checks issued by the Menominee Tribal Enterprises were, in fact, the defendants. However, at trial, the defendants introduced no evidence to show that they were not the Tony Fish and Ramon Torres who were identified on the Tribal Roll and who received the shared dividend checks from Menominee Tribal Enterprises. In light of the Government’s uncontradicted evidence, it was reasonable for the jury to infer that the Tony Fish and Ramon Torres appearing on the Menominee Tribal Roll and the shared dividend checks, were, in fact, the defendants. See Corona-Palomera v. Immigration and Naturalization Service, 661 F.2d 814, 816-17 (9th Cir.1981) (and cases cited therein). . The United States Supreme Court stated in United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977), that \"[e]xcept for the offenses enumerated in the Major Crimes Act, all crimes committed by enrolled Indians against other Indians in Indian country are subject to the jurisdiction of tribal courts.” 430 U.S. at 643 n. 2, 97 S.Ct. at 1397 n. 2. See also United States v. Johnson, 637 F.2d 1224, 1231 (9th Cir.1980); United States v. Smith, 562 F.2d 453, 457 (7th Cir.1977), cert. denied, 434 U.S. 1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1978). Thus, under 18 U.S.C. § 1152, if the crime was committed by one Indian against another Indian, the tribal court would retain jurisdiction. . Rev.Stat. § 2145 provided that “except as to crimes the punishment of which is expressly provided for in this Title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.” Famous Smith v. United States, 151 U.S. at 53, 14 S.Ct. at 235. Rev.Stat. § 2146 provided that \"the preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian" }, { "docid": "155550", "title": "", "text": "18 U.S.C. § 1152). Thus, defendant’s equal protection challenge to the constitutionality of the federal scheme under which he was tried and found guilty must fail. AFFIRMED. . United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977), cited by the parties on the equal protection claim, involves disparate treatment of Indians and non-Indians when the victim is a non-Indian. United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881), judicially created an exception to federal jurisdiction over crimes committed in Indian country, for crimes committed by non-Indians against other non-Indians. Although McBratney has been criticized, see F. Cohen, Handbook of Federal Indian Law 264-66 (1982 ed.), the decision has been consistently followed by the Supreme Court in other cases involving crimes in Indian country by non-Indians against non-Indians. Antelope, 430 U.S. at 643 n. 2, 648 n. 9, 97 S.Ct. at 1397 n. 2, 1399 n. 9. In Antelope the Court dismissed disparate treatment concerns raised by its adherence to the McBratney precedent. Id. at 646, 97 S.Ct. at 1398 (federal regulation \"is rooted in the unique status of Indians as ‘a separate people' ”)." }, { "docid": "16744002", "title": "", "text": "was committed forcibly and against the will of the victim.” (emphasis added). 432 F.2d at 117 n. 1. . In United States v. Sosseur, 181 F.2d 873, 875 (7th Cir.1950), this court referred to the three exceptions contained in the second paragraph of 18 U.S.C. § 1152 as \"defenses.\" Though the use of the term \"defenses” appears to confuse the burden of proof on the issue of non-Indian status under 18 U.S.C. § 1152, the court cleared that confusion when it later, in the same opinion, referred to the three exceptions as \"three conditions.” Indeed, for purposes of 18 U.S.C. § 1152, the Government must satisfy the first \"condition” and prove that the \"crime was interracial.” F. Cohen, Handbook of Federal Indian Law, 301 n. 157 (1982). See also United States v. Wheeler, 435 U.S. at 324-25, 98 S.Ct. at 1086-87. . Between August 1954, and March 1976, the State of Wisconsin had criminal jurisdiction over the Menominee Indian Reservation. See 18 U.S.C. § 1162 (1982). Pursuant to 25 U.S.C. § 1323 (1982), the State of Wisconsin retroceded its criminal jurisdiction over the Menominee Indian Reservation to the United States, effective March 1, 1976. See Latender v. Israel, 584 F.2d 817, 818 (7th Cir.1978), cert. denied, 440 U.S. 985, 99 S.Ct. 1800, 60 L.Ed.2d 247 (1979); State ex rel. Pyatskowit v. Montour, 72 Wis.2d 277, 280-82, 240 N.W.2d 186, 187-88 (1976). . See footnote 11. We note that the tribal court may have concurrent jurisdiction if an Indian commits one of the fourteen enumerated crimes of 18 U.S.C. § 1153 against another Indian. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 203-04 n. 14, 98 S.Ct. 1011, 1018-19 n. 14, 55 L.Ed.2d 209 (1978); United States v. Broncheau, 597 F.2d at 1264-65; United States v. John, 587 F.2d at 686 n. 6. However, according to the United States Supreme Court “[s]ince tribal and federal prosecutions are brought by separate sovereigns, they are not ‘for the same offence,’ and the double jeopardy clause thus does not bar one when the other has occurred.\" United States v. Wheeler, 435 U.S. at" }, { "docid": "16451282", "title": "", "text": "HEANEY, Circuit Judge. Thomas Bruce Allen, an Indian, was found to be a juvenile delinquent under 18 U.S.C. § 5031 et seq., for the commission of assault with a deadly weapon against another Indian within Indian Country in violation of 18 U.S.C. §§ 1153 and 113(c). Allen appeals from the adjudication of delinquency on the grounds that the trial court lacked jurisdiction over the proceedings, that his request for a preliminary hearing should have been granted and that the evidence was insufficient to support the trial court’s findings. We affirm. I. Allen first contends that since the status of juvenile delinquency is not one of the crimes enumerated in 18 U.S.C. § 1153, jurisdiction over his offense lay not in federal court but rather in the tribe. Generally, offenses committed by an Indian against another Indian within Indian Country are subject to the jurisdiction of the tribal courts if not among those crimes expressly subject to federal jurisdiction under the Major Crimes Act, 18 U.S.C. § 1153. United States v. Antelope, 430 U.S. 641, 643 n. 2, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). Since a finding of delinquency under the Federal Juvenile Delinquency Act is an adjudication of status, not a conviction for a crime, United States v. King, 482 F.2d 454, 456 (6th Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 594, 38 L.Ed.2d 483 (1973); Fagerstrom v. United States, 311 F.2d 717, 720 (8th Cir. 1963), Allen contends that a proceeding under the Act is jurisdictionally distinct from a criminal proceeding under § 1153, with the result that no federal jurisdiction existed over his offense. We disagree. The Federal Juvenile Delinquency Act defines “juvenile delinquency” as “the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.” 18 U.S.C. § 5031. Thus, it is apparent that the Act does not create a substantive offense with its own jurisdictional basis, but rather establishes a procedural mechanism for the treatment of juveniles who are already subject to federal jurisdiction because of" }, { "docid": "16743971", "title": "", "text": "Cir.1976): “Without objection, the Government introduced ... the certificate of the Tribal Enrollment officer of the Eastern band of Cherokee Indians that defendant is on Revised Roll No. 3902, was born May 8, 1943, and possesses three-fourths degree of Indian blood. That was adequate proof that defendant was a Cherokee Indian.” (emphasis added). 537 F.2d at 1251. See also United States v. Dodge, 538 F.2d 770, 786 (8th Cir.1976), cert. denied sub nom. Alvarado v. United States, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547 (1977) (tribal enrollment and one-fourth Indian blood is sufficient proof that one is an Indian). Additionally, in United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977), proof that defendants were “enrolled members of the Coeur d’Alene Tribe and thus not emancipated from tribal relations,” 430 U.S. at 646-47 n. 7, 97 S.Ct. at 1398-99 n. 7, was sufficient proof that defendants were Indians for purposes of Federal jurisdiction under 18 U.S.C. § 1153. In the instant case, the Government introduced not only the certificates of tribal enrollment, which included appellants’ degree of Indian blood, but also certified copies of cancelled checks that the Menominee Tribal Enterprises had issued to Tony Fish and Ramon Torres as shared dividend payments. According to the testimony of Dolores Ninham, the payroll supervisor for the Menominee Tribal Enterprises, these shared dividend payments were made only to persons who appeared on the Menominee Tribal Roll. In light of appellants’ status as enrolled Indians of the Menominee Indian Tribe, and their receipt of shared dividend payments issued only to enrolled members of the Menominee Indian Tribe, we hold that there was ample evidence to support the jury’s finding that appellants Fish and Torres were Indians for purposes of 18 U.S.C. § 1153. Appellants further claim that the district court’s jury instruction on what constitutes an Indian for purposes of 18 U.S.C. § 1153 was improper. The trial judge instructed the jury: “To be considered an Indian, a person must have some degree of Indian blood, and must be recognized as an Indian. In considering whether a" }, { "docid": "23185437", "title": "", "text": "offenses committed by Indians in Indian country. See United States v. Broncheau, 597 F.2d 1260, 1265 (9th Cir.1979), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979). As relevant for our purposes, § 1153 provides: Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely ... an assault against an individual who has not attained the age of 16 years ... shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. 18 U.S.C. § 1153(a) (2004). Enacted in 1885, the Indian Major Crimes Act (“IMCA”) guaranteed that Indians committing major crimes against other Indians would be treated with the same rigor as non-Indian offenders. See Oliphant, 435 U.S. at 203 & n. 4, 98 S.Ct. 1011. The IMCA, the Court has recognized, is a “ ‘carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land.’ ” United States v. Antelope, 430 U.S. 641, 642-43 n. 1, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977) (quoting Keeble v. United States, 412 U.S. 205, 209, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). Assault against an individual who has not attained the age of 16 years is one of the enumerated crimes that the IMCA covers. We have recognized that the “limited intrusion” on Indian sovereignty in the IMCA is itself confined to federal enclave law. In United States v. Begay, 42 F.3d 486, 498(9th Cir.1994), we rejected the claim “that Indians may not be charged for any criminal conduct beyond those crimes enumerated in [the Indian Major Crimes Act].” We concluded that the IMCA only concerns “the application of federal enclave law to Indians and has no bearing on federal laws of nationwide applicability that make actions criminal wherever committed.” Id. (citing United States v. Top Sky, 547 F.2d 483, 484(9th Cir.1976)). Thus, we held that federal criminal laws of general, nationwide applicability- — such as the federal" } ]

[ { "docid": "18613034", "title": "", "text": "not have Sunday drawings, and some bettors do not bet on Sunday, thereby reducing gross revenues that could be targeted for seizure. 26. Claimants James Ronson Taylor and Jamel Earleen White Taylor were both charged by the State; James Taylor pled guilty to one count of misdemeanor gambling, and all other charges against both claimants were dismissed. The charge of the gambling offense was based on the same evidence which claimants now seek to suppress. 27. Claimant James Ronson Taylor testified at the hearing. Because of his obvious interest in the case, his demeanor while testilying, and the inconsistencies and admissions within his testimony, the court did not find him to be a credible witness. PROPOSED CONCLUSIONS OF LAW The Complaint initiating this case seeks forfeiture of the defendant currency and claimants’ real property as described above under the civil forfeiture provisions of 18 U.S.C. § 981 and 1955(d), incorporating conduct under § 1956(a)(1). Claimants have assailed these actions under two theories: first, that the evidence used to justify the forfeiture was obtained in violation of claimants’ Fourth Amendment rights, and second, that forfeiture of the defendant property both real and personal would constitute an excessive fine in violation of the Eighth Amendment. A. Fourth Amendment Claim The Fourth Amendment to the United States Constitution establishes the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fourth Amendment’s protection against unreasonable searches and seizures applies in civil forfeiture proceedings. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 85 S.Ct. 1246, 1248, 14 L.Ed.2d 170 (1965); United States v. Taylor, 13 F.3d 786, 788 (4th Cir.1994); United States v. Turner, 933 F.2d 240, 243 (4th Cir.1991). The exclusionary rule — that the government cannot use evidence against a defendant obtained in violation of the defendant’s Fourth Amendment rights — also bars the government from relying on evidence derived from an illegal search to sustain a forfeiture. One 1958 Plymouth Sedan, 380 U.S. at 698, 85 S.Ct. at 1249. Claimants’ primary contention is that they had a reasonable" } ]

[ { "docid": "5156599", "title": "", "text": "S.Ct. 492, 505 n. 3, 126 L.Ed.2d 490 (1993). Rather, a warrant of seizure may be issued in cases where the Government establishes, inter alia, probable cause to believe that an order entered under § 853(e) may not be sufficient to assure the availability of the property for forfeiture. 21 U.S.C. § 853(f). A court imposing a sentence upon a person found in violation of the provisions specified in § 853(a) must order property described in that subsection forfeited to the United States, and upon entry of an order of forfeiture the Court must authorize the Attorney General to seize all property so forfeited. See 21 U.S.C. § 853(a) and (g). This dispute fits under the provisions of 21 U.S.C. § 853(n) which concerns third-party interests and the procedures that govern such claims in forfeiture actions brought under § 853. The express provision dealing with the notice issue is § 853(n)(l) which provides: Following the entry of an order of forfeiture under this section, the United States shall publish notice of the order and of its intent to dispose of the property in such manner as the Attorney General may direct. The Government may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the order of forfeiture as a substitute for published notice as to those persons so notified. 21 U.S.C. § 853(n)(1). Section 853(n) allows persons with an interest in the property to assert a claim within thirty days of the final publication of the notice or his receipt of notice under subsection (n)(1), see § 853(n)(2) & (3), and provides procedures for a hearing to govern the determination of such claims, see § 853(n)(2), (4) & (5). The statute also provides that if a petitioner establishes that he has an interest described in § 853(n)(6)(A) or (B), the Court shall amend its forfeiture order to reflect that determination. Id. The statutory procedures set forth in § 853(n) are not the only procedures that govern such claims, for the section also provides" }, { "docid": "10208889", "title": "", "text": "no legal right to the forfeited proceeds. This timely appeal followed. A motion to dismiss á third-party petition in a criminal forfeiture proceeding is analyzed in the same way as a motion to dismiss a complaint under Rule 12(b) of the Federal Rules of Civil Procedure. See Willis Mgmt. (Vt.), Ltd. v. United States, 652 F.3d 236, 241 (2d Cir. 2011). Consequently, a third-party petitioner under section 853(n) must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Where, as here, the district court finds that the petition does not satisfy this standard, its order of dismissal is reviewed de novo. See Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). Under section 853, individuals convicted of drug-trafficking crimes must forfeit “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” 21 U.S.C. § 853(a)(1). They also must forfeit any instrumentalities used to commit the crime. See id. § 853(a)(2). In this appeal, the appellant takes issue with the district court’s application of section 853(n). Pertinently, the statute sets forth the procedures through which a third party can challenge a preliminary order of forfeiture. To initiate the process, the third party must petition the court for a hearing to evaluate his interest in the property that the government says is subject to forfeiture. See 21 U.S.C. § 853(n)(2); United States v. Zorrilla-Echevarría, 671 F.3d 1, 6 (1st Cir. 2011). At the hearing, the third party must establish that he has standing within the meaning of section 853 by “asserting a legal interest” in the property. 21 U.S.C. § 853(n)(2); see United States v. Watts, 786 F.3d 152, 160 (2d Cir. 2015). He must then show his entitlement to relief on the merits by establishing (as relevant here) that the order of forfeiture is invalid because any right to the property “was vested in [him] rather than the defendant or [that his right to the property] was superior" }, { "docid": "5098714", "title": "", "text": "acts which gave rise to the forfeiture of the property under this section; or (B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of pur chase reasonably without cause to believe that the property was subject to forfeiture under this section---- 21 U.S.C. § 853(n)(6). If the court finds by a preponderance of the evidence that the petitioner falls within either of the above two categories, the court must amend the forfeiture order so as accordingly to restore a properly apportioned part of the seized property to the third party petitioner. Id. The Government contends that as general creditors, petitioners do not possess a legal interest in the seized C & F funds under 21 U.S.C. § 853(n)(2) and thus lack standing to contest the order of forfeiture. “The mere fact that [petitioners] hold cheeks drawn on C & F accounts does not give them a legal interest in the specific funds ... seized in the C & F accounts.” Letter of Peter T. Gelfman and Sharon Cohen Levin, Assistant United States Attorneys, Dated January 26, 1996, at 3. Petitioners assert a legal interest in the C & F accounts as bona fide purchasers pursuant to 21 U.S.C. § 853(n)(6)(B). Specifically, they claim two special rights as bona fide purchasers of the seized funds: a right of withdrawal and a right of ownership. All petitioners assert a “right to employ the United States banking system to withdraw the number of Dollars purchased ... from checking accounts on which the Dollar cheeks were drawn____” Letter from Stuart Holtzman, Dated February 23, 1996, at 3. Those petitioners who purchased the dollar checks in foreign currency transactions, with sucres as opposed to dollars, claim an “additional right of ownership of the seized U.S. Dollars received in trade, represented by the U.S. Dollar check.” Letter from Stuart Holtzman, Dated August 15,1995, at 2. However, as the specific property in which petitioners assert both withdrawal and ownership rights is by its very nature incapable of identification, petitioners can not claim" }, { "docid": "20407031", "title": "", "text": "not obtain a criminal indictment containing an allegation that the property was subject to forfeiture before the time for filing a complaint had expired; and (3) there were other claims besides the return of the seized money raised in the motion before the district court, i.e., Brown allegedly “[ajlso sought ... some vindication of Fourth Amendment Rights. For if appellant’s consent to the search was involuntary and for that reason illegal, she was wronged.” We find these arguments unavailing. The district court correctly concluded that it lacked jurisdiction over Brown’s motion for return of the money. Under 21 U.S.C. § 853(k)(2), a third party asserting an interest in a forfeiture proceeding is “expressly barred ... from ‘commencfing] an action at law or equity against the United States concerning the validity of [her] alleged interest in the property[.]’ ” United States v. Douglas, 55 F.3d 584, 586 (11th Cir.1995) (quoting 21 U.S.C. § 853(k)(2)). “A third party’s only avenue for protecting [her] interest is the procedure set forth in 21 U.S.C. § 853(n), which provides that ‘[a]ny person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section’ may ‘petition the court for a hearing to adjudicate the validity of [her] alleged interest in the property.’” United States v. Wade, 255 F.3d 833, 837 (D.C.Cir.2001); see also United States v. Nava, 404 F.3d 1119, 1125 (9th Cir.2005) (explaining that § 853(k) “bars third parties ... from bringing independent suits against the United States once an indictment alleging that the property is subject to forfeiture has been filed”). Because Brown brought this suit after the government filed the indictment and bill of particulars in Cooper’s criminal case, her suit is barred by § 853(k)(2). Brown’s assertion that the government unlawfully included the $102,570 in the criminal case against Cooper does not change things. Indeed, unless and until Brown establishes a legal interest in the money, which she can only do now through a § 853(n) proceeding, her claims that the government failed to comply with 18 U.S.C. § 983(a)(3)(B)" }, { "docid": "10208888", "title": "", "text": "with distributing oxycodone and marijuana in violation of federal law. See 21 U.S.C, § 841(a). As part of the investigation leading to those charges, federal agents had searched the defendant’s home and seized $14,792 in cash. The case was docketed in the United States District Court for the District of Rhode Island, and the defendant pleaded guilty to the charges. The court determined that the $14,792 in cash represented the proceeds of the defendant’s illegal drug dealings and was, therefore, subject to forfeiture. See 21 U.S.C. § 853(a). Based on this determination, the court entered a preliminary order of forfeiture. Within a matter of days, the appellant filed a third-party petition, in which he asserted a claim to the seized cash under 21 U.S.C. § 853(n) and Federal Rule of Criminal Procedure 32.2(c). The government moved to dismiss his claim under Rule 32.2(c)(1)(A), which authorizes dismissal of a third-party petition for, among other things, lack of standing or failure to state a claim. The district court granted the government’s motion, ruling that the appellant had no legal right to the forfeited proceeds. This timely appeal followed. A motion to dismiss á third-party petition in a criminal forfeiture proceeding is analyzed in the same way as a motion to dismiss a complaint under Rule 12(b) of the Federal Rules of Civil Procedure. See Willis Mgmt. (Vt.), Ltd. v. United States, 652 F.3d 236, 241 (2d Cir. 2011). Consequently, a third-party petitioner under section 853(n) must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Where, as here, the district court finds that the petition does not satisfy this standard, its order of dismissal is reviewed de novo. See Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). Under section 853, individuals convicted of drug-trafficking crimes must forfeit “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” 21 U.S.C. § 853(a)(1). They also must forfeit any instrumentalities used" }, { "docid": "17891167", "title": "", "text": "position that the Court should determine the outcome of this ancillary proceeding with resort to equitable rather than legal principles, and use funds in MVMC’s possession at the time of the February 2010 seizures in order to aid in the compensation of other victims because to do so would be more “fair” in the Government’s eyes. The Government’s argument in favor of the “equitable” distribution of the property fails because it is without support in the criminal forfeiture statute, which gives third-parties the right to recover property in which they have a legal interest. 21 U.S.C. § 853(n)(6)(A)-(B). The statute contains no distinction between those who are victims of fraud and those who are not victims of fraud; under the plain language of the statute, any third party with a legal interest in property superior to the defendant’s may recover that property. See United States v. Nolasco, 354 Fed.Appx. 676, 680 (3d Cir.2009) (citing United States v. Soreide, 461 F.3d 1351, 1354 (11th Cir.2006)) (“Ownership is the only relevant issue in a Section 853(n) ancillary proceeding.”). While the Government cites Securities and Exchange Commission v. Credit Bancorp, 290 F.3d 80, 89 (2d Cir.2002), for the proposition that a pro rata distribution of available funds is the appropriate remedy to compensate victims of a fraudulent scheme, that case is distinguishable because it involved a civil enforcement action brought by the SEC rather than criminal forfeiture proceedings. In Credit Bancorp, the U.S. Court of Appeals for the Second Circuit held that it was within the district court’s discretion to order a pro rata distribution of funds to the victims of a Ponzi scheme. Credit Bancorp, being a civil case, is inapplicable to criminal forfeiture actions, which are governed by 21 U.S.C. § 853 and Criminal Rule 32.2. Equitable distribution is not appropriate here if the Claimants establish their legal interests in the Seized Funds. IV. Conclusion As discussed above, the Claimants’ petitions plausibly assert legal interests in portions of the Seized Funds, and therefore are entitled to a hearing on the merits. Therefore, the Government’s Motion to Dismiss Petitions for Ancillary Hearing" }, { "docid": "10986664", "title": "", "text": "ORDER HAND, Chief Judge. The Court is called upon at this juncture to resolve a procedural quagmire pertaining to the respective claims of the Government, the defendant and the defendant’s attorney, W. A. Kimbrough, to $11,400.00 in currency seized on December 3, 1984 pursuant to a state court authorized search warrant executed at 963 Gorgas Street, the defendant’s residence. The Government’s position is that these funds are forfeitable property under the criminal forfeiture provisions of 21 U.S.C. § 853 which provides that title vests in the United States upon the commission of the act giving rise to the forfeiture and that the Government’s interest in the funds clearly pre-dates that claimed by the defendant’s attorney. The apparently alternative positions taken by the defendant and Mr. Kimbrough include the assertions that: 1) the Government abandoned its claim to the $11,400.00 by first permitting the State of Alabama to proceed against the funds in a civil forfeiture action and then interceding with its claim only when “it was learned that the State intended to abandon the money to the claimant and his attorney”; and 2) the forfeiture provisions of 21 U.S.C. § 853 were found unconstitutional in United States v. Crozier, 111 F.2d 1376 (9th Cir.1985). The Court first finds that Mr. Kimbrough, in the capacity of a third-party claimant, lacks standing to contest the forfeiture of the $11,400.00 seized in this action. Under Eleventh Circuit law, as set forth in United States v. $500,000.00, 730 F.2d 1437 (11th Cir.1984): A party seeking to challenge the government’s forfeiture of money or property used in violation of federal law must first demonstrate an interest in the seized item sufficient to satisfy the court of its standing to contest the forfeiture. United States v. $364,960.00 in Currency, 661 F.2d 319, 326 (5th Cir. Unit B 1981); see also, United States v. Currency Totaling $48,318.08, 609 F.2d 210, 213-14 (5th Cir.1980). One must claim an ownership or possessory interest in the property seized. United States v. $15,000.00, 558 F.2d 1359, 1361 (9th Cir.1977). The burden of establishing standing in forfeiture proceedings is on the claimant." }, { "docid": "19960316", "title": "", "text": "constructive trust claim could not be imposed to defeat the government’s forfeiture claim. The Fund appealed. II. STANDARD OF REVIEW “In the context of third-party claims to criminally forfeited property, we review the district court’s factual findings for clear error and its legal conclusions de novo.” United States v. Watkins, 320 F.3d 1279, 1281 (11th Cir.2003). Because the district court disposed of the Fund’s ancillary hearing petition on the government’s motion to dismiss, we assume (as did the district court) that the facts alleged in the petition are true. See Fed. R.Crim.P. 32.2(c)(1)(A). Thus, the only issues before us in this appeal are legal ones meriting de novo review. III. DISCUSSION Section 853 governs criminal forfeiture proceedings, see 28 U.S.C. § 2461(c), and provides that persons convicted of certain criminal violations shall forfeit to the United States any property used to commit or facilitate the crime, or any property “constituting, or derived from, any proceeds the person obtained” from the crime, 21 U.S.C. § 853(a)(l)-(2). “All right, title, and interest” in the forfeited property “vests in the United States upon the commission of the act giving rise to forfeiture.” 21 U.S.C. § 853(c). Section 853(n) establishes a procedure for third parties who claim an interest in forfeited property to avoid its forfeiture. Such parties may “petition the [district] court for a hearing to adjudicate the validity of [their] alleged interest in the property.” Id. § 853(n)(2). The statute establishes the following standard by which third-party interests are adjudicated: If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that— (A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superi- or to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or (B) the petitioner" }, { "docid": "18297753", "title": "", "text": "review. Portman v. County of Santa Clara, 995 F.2d 898, 903 (9th Cir.1993). B We first address the injury requirement for Article III standing and ripeness, which ultimately sounds the death knell for Liquidators’ interlocutory appeal. Liquidators claim two injuries: (1) unlawful restraint on the assets seized from their bank accounts, and (2) denial of an immediate hearing after the government seized their property. Both, according to Liquidators, constitute an “injury” sufficient to satisfy Article III standing. We disagree. Neither constitutes a legally cognizable injury in light of the statutory scheme specifying the process accorded to Liquidators in connection with a criminal forfeiture. Section 853(n) provides Liquidators an adequate opportunity to protect their claimed interest in the funds and bonds in an ancillary proceeding where they may present evidence, offer witnesses, and cross-examine witnesses who appear at the hearing. 21 U.S.C. § 853(n)(5). Although the government seized the funds and bonds from accounts Liquidators control, whether the seizure actually injures Liquidators is conjectural or hypothetical because it depends on the district court’s findings on who possesses superior title to the res under § 853(n)(6). If the district court determines that Liquidators have a superior legal right, title, or interest in the property, the court must amend the order of forfeiture to divest the United States’ interest in the forfeited property. Id. § 853(n)(6). Moreover, as government counsel conceded at oral argument, Liquidators may obtain pre-judgment accrued interest in the amount the government actually earned while wrongfully holding the money. The district court shall bind the government accordingly if it ultimately rules in Liquidators’ favor. Liquidators present no reason why the ancillary proceeding would inadequately protect their interest in adjudicating their competing claim to the property. In the proceedings that we understand the district court will promptly commence below, Liquidators may present all arguments and defenses to defeat the government’s forfeiture, including those raised in their seizure motion and on appeal. We express no opinion on the merits of those arguments, and the district court may freely apply the law to the facts as it finds them during the ancillary proceedings." }, { "docid": "16470940", "title": "", "text": "subject to the defense of laches in enforcing its rights.”); United States v. Delgado, 321 F.3d 1338, 1349 (11th Cir.2003) (noting that “rare exceptions to this [Summerlin] rule” apply only in civil cases and “ha[ve] never been applied in a criminal context”). Here, the conduct of the government was the government’s enforcing its rights to seize property Duboc obtained with the profits of an international drug trafficking operation. See Bissell, 866 F.2d at 1349 (recognizing the “principle that the fruits and instrumentalities of a crime do not belong to the criminal, but rather to the government”). In any event, as noted above, Federal Rule of Criminal Procedure 32.2(e)(1) permits the district court to amend a criminal forfeiture order “at any time” on motion by the government. As of 2009, the $100 million judgment had not been fully satisfied. And no provision of 21 U.S.C. § 853 or the Federal Rules of Criminal Procedure otherwise limits the time during which the government may move to amend an existing criminal forfeiture order to seize property subject to forfeiture under § 853. See United States v. Baker, 227 F.3d 955, 970 (7th Cir.2000) (explaining that a criminal forfeiture order is an in personam judgment enforceable “for the balance of [the defendant’s] prison term and beyond”). C. Due Process and Notice Duboc argues next that the 11-year delay between the United States’s 2000 request that Thailand restrain the Thailand condos and its 2011 motion to amend the 1999 forfeiture order violated his Fifth Amendment due process rights. Duboc cites Supreme Court and other federal court of appeals cases holding that due process requires the government to commence property forfeiture proceedings without undue delay. See, e.g., United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 562-70, 103 5.Ct. 2005, 2011-15, 76 L.Ed.2d 143 (1983); Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir.1978). The problem for Duboc is that the cases he cites are civil, not criminal, forfeiture cases. For this reason, they do not establish the due process rights of criminal defendants in cases" }, { "docid": "21240680", "title": "", "text": "of fact for clear error and its interpretation and application of federal forfeiture laws de novo. United States v. Totaro, 345 F.3d 989, 993 (8th Cir.2003). Twenty-one United States Code § 853 addresses criminal forfeitures. 21 U.S.C. § 853. Under § 853, any person convicted of a drug-law violation punishable by more than one-year imprisonment shall forfeit to the United States, irrespective of any provision of state law, “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as a result of [the] violation.” Id. § 853(a)(1). Section 853 also articulates procedures by which third parties may assert their interest in forfeited property. Indeed, a third party may petition a federal district court to adjudicate the validity of his purported interest in such property. Id. § 853(n). Specifically, “[a]ny person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may ... petition the court for a hearing to adjudicate the validity of his alleged interest in the property.” Id. § 853(n)(2) (emphasis added). Additionally, Federal Rule of Criminal Procedure 32.2 includes a similar provision mandating that a district court conduct an ancillary proceeding when a third party files a petition asserting an interest in property forfeited as the proceeds of criminal activity. Fed.R.Crim.P. 32.2(c)(1). The specifications that a third-party claimant have a legal interest (under § 853) and an interest (under Rule 32.2) impose a statutory-standing requirement on claimants. Thus, under both § 853 and Rule 32.2, “a party seeking to challenge the government’s forfeiture of money or property used in violation of federal law must first demonstrate [a legal] interest in the seized item sufficient to satisfy the court of its standing to contest the forfeiture.” United States v. Three Hundred Sixty Four Thousand Nine Hundred Sixty Dollars ($364,960.00) in U.S. Currency, 661 F.2d 319, 326 (5th Cir.1981). Standing in forfeiture cases has “both constitutional and statutory aspects.” United States v. One-Sixth Share of James J. Bulger in All Present & Future Proceeds of Mass Millions Lottery Ticket No. M246233, 326" }, { "docid": "5098713", "title": "", "text": "In two instances — the exceptions noted above — the dollar checks were purchased not with sucres but with American dollars. Contending that under 21 U.S.C. § 853(n)(2) and (n)(6), petitioners lack standing to contest the forfeiture, the Government seeks dismissal of the petitions. For the reasons stated below, we agree with the Government and dismiss the petitions. DISCUSSION The relevant statutory law provides that Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may ... petition the court for a hearing to adjudicate the validity of his alleged interest in the property____ 21 U.S.C. § 853(n)(2) (emphasis added). Once a petition has been filed under (n)(2), the court conducts a hearing to determine whether (A) the petitioner has a legal right, title, or interest in the property, ... [that] was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or (B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of pur chase reasonably without cause to believe that the property was subject to forfeiture under this section---- 21 U.S.C. § 853(n)(6). If the court finds by a preponderance of the evidence that the petitioner falls within either of the above two categories, the court must amend the forfeiture order so as accordingly to restore a properly apportioned part of the seized property to the third party petitioner. Id. The Government contends that as general creditors, petitioners do not possess a legal interest in the seized C & F funds under 21 U.S.C. § 853(n)(2) and thus lack standing to contest the order of forfeiture. “The mere fact that [petitioners] hold cheeks drawn on C & F accounts does not give them a legal interest in the specific funds ... seized in the C & F accounts.”" }, { "docid": "18231052", "title": "", "text": "seizures were lawful, has the government demonstrated an interest in the continued restraint of the assets. The government contends that the court can only examine the lawfulness of the seizure and not the propriety of forfeiture, which is necessarily intertwined with the government’s interest in the continued restraint of the assets. The government’s position fails to take note of the 1989 amendments to Rule 41(e) which added the following italicized language and now provide that “[a] person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court ... for the return of the property on the ground that such person is entitled to lawful possession of the property.” Therefore, a “person whose property has been lawfully seized may seek return of property when aggrieved by the continued possession of it.” See Notes of Advisory Committee accompanying the 1989 Amendment to Fed.R.Crim.P. 41. See also, In re Seizure of Four (4) DC-3 Aircraft, 134 F.R.D. 251 (E.D.Wis.1991); In re 4330 North 35th St., 142 F.R.D. 161 (E.D.Wis.1992). The court is thus satisfied that, regardless of whether the initial seizure was lawful or unlawful, the court is empowered under Fed. R.Crim.P. 41(e) to reach both issues; the lawfulness of the initial seizure and the continued retention of the property. The court notes that a motion for the return of property which is filed after an indictment is filed shall also be treated also as a motion to suppress under Fed.R.Crim.P. 12. See Fed. R.Crim.P. 41(e). However, it is clear from the parties’ submissions, including the defendants’ separate suppression motion, that the present motion is to be treated solely as a motion for the return of the assets under Rule 41(e). Lawfulness of the Initial Seizure The government is seeking forfeiture of the assets named in the indictment under the authority of 21 U.S.C. § 853. The government may seek the forfeiture of drug trafficking proceeds under 21 U.S.C. § 853(a), or of substitute property under the authority of § 853(p) if property which would be subject to forfeiture under § 853(a) is not available" }, { "docid": "5156600", "title": "", "text": "its intent to dispose of the property in such manner as the Attorney General may direct. The Government may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in the property that is the subject of the order of forfeiture as a substitute for published notice as to those persons so notified. 21 U.S.C. § 853(n)(1). Section 853(n) allows persons with an interest in the property to assert a claim within thirty days of the final publication of the notice or his receipt of notice under subsection (n)(1), see § 853(n)(2) & (3), and provides procedures for a hearing to govern the determination of such claims, see § 853(n)(2), (4) & (5). The statute also provides that if a petitioner establishes that he has an interest described in § 853(n)(6)(A) or (B), the Court shall amend its forfeiture order to reflect that determination. Id. The statutory procedures set forth in § 853(n) are not the only procedures that govern such claims, for the section also provides that “[ejxcept to the extent that they are inconsistent with the provisions of this section, the provisions of section 881(d) of this title shall apply to a criminal forfeiture under this section.” 21 U.S.C. § 853(j). Section 881(d), in turn, provides that: The provision of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws ... shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof____ 21 U.S.C. § 881(d). Thus, § 881(d) references the procedures set forth in Title 19. See 19 U.S.C. § 1600. The procedures set out. in 19 U.S.C. § 1602-19 govern all seizures made by customs officers with exceptions not relevant here. 19 U.S.C. § 1600. These provisions provide, inter alia, that seized property is appraised, see 19 U.S.C. § 1606, and the procedures employed depend upon the appraised value of the property. If the property is valued at $500,000" }, { "docid": "5926838", "title": "", "text": "v. Y2K Shipping & Trading, Inc., 207 F.R.D. 23, 24 n. 1 (E.D.N.Y.2001) (magistrate had authority to issue final order under § 636(b)(1)(A), rather than a recommendation under § 636(b)(1)(B), because issue was non-dispositive). For that reason, and to comply with Judge Telesca’s referral order, I am issuing a Report and Recommendation in this matter. II. Analysis of Defendant’s Motion Now turning to the merits of defendant’s Rule 41(g) motion, I find that such motion is not the appropriate vehicle through which to pursue the relief defendant seeks. Accordingly, it is my Report and Recommendation that defendant’s motion be denied. In his motion, defendant has effectively raised two arguments for the return of the seized property. First, defendant claims that the government’s failure to return the property has placed an undue hardship upon him. Second, defendant claims that the money was seized illegally. Each of defendant’s claims will be addressed in turn below. A. Undue Hardship: Defendant contends that the government’s continuing seizure of the United States currency constitutes an undue burden. (Docket # 10). According to defendant, this amount of money was set aside for the purpose of paying bills for his business and the promissory note for the premises. (Docket # 10). Defendant’s argument, however, is more appropriately brought in another forum. The seizure of defendant’s money on April 14, 2003 initiated the administrative stage of a civil forfeiture proceeding, which is governed by the regulations set forth in the Civil Asset Forfeiture Reform Act, 18 U.S.C. § 983 (government has 60 days from date of seizure to send notice of civil forfeiture proceeding). The Act sets forth specific procedures for contesting a seizure of property and provides claimants with a remedy for improper seizures. Civil forfeiture proceedings, however, are not governed by the Federal Rules of Criminal Procedure. Rule 1(a)(5)(B) of the Criminal Rules specifically states that a civil property forfeiture for violation of a federal statute is not covered by the Criminal Rules. See United States v. One 1985 Black Buick Auto., Bearing New York License No. AHZ 732, 725 F.Supp. 148, 150 (W.D.N.Y.1989) (citing prior" }, { "docid": "141220", "title": "", "text": "of Forfeiture was entered March 5, 1993, resulting in the forfeiture of approximately $2.1 million to the United States. Appellants were businesses based in Quito, Ecuador, which occasionally converted Ecuadorian sucres into U.S. dollars by purchasing checks drawn on C & F accounts in the United States. Once the assets in those accounts were frozen by reason of the money laundering activities of Ribadeneira and Alzate, Appellants were left unable to redeem U.S. dollar checks which they had purchased. On December 8,1995, they petitioned under 21 U.S.C. § 853(n)(2) to modify the Final Order of Forfeiture and recover their alleged interest in the seized accounts. On April 1, 1996, the district court held that Appellants, as general creditors without an identifiable legal interest in the particular assets subject to forfeiture, lacked standing to contest the Final Order of Forfeiture, and dismissed their petition. Because they are questions of law, we review de novo both a district court’s determination that a party lacks standing, Fund for Animals v. Babbitt, 89 F.3d 128, 132 (2nd Cir.1996), and that court’s interpretation of a statute, United States v. Ripinsky, 20 F.3d 359, 361 (9th Cir.1994). II Discussion Title 21 U.S.C. § 853, sets forth the procedure by which third parties seeking to recover an alleged interest in forfeited property may obtain judicial resolution of their claim. The provision granting standing to parties seeking to modify a Final Order of Forfeiture to exclude certain properties from that Order states: Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may ... petition the court for a hearing to adjudicate the validity of this alleged interest in the property. The hearing shall be held before the court alone, without a jury.... 21 U.S.C. § 853(n)(2). Section 853(n) further provides that, once a petition has been filed, the district court conducts a hearing on the issue. In addition, If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that— (A) the petitioner has a" }, { "docid": "18231076", "title": "", "text": "with the requirements of § 888(c) by filing an indictment within 60 days of filing of a claim and cost bond. This would be using the dictionary definition of “complaint” which is simply a “formal allegation against a party.” Webster’s New Collegiate Dictionary at 228 (1979). Parenthetically, this court finds such an argument equally unpersuasive. It is not necessary, however, to resolve the question of whether the government is foreclosed from pursuing civil forfeiture at some later date since the court is satisfied that criminal forfeiture remains a viable proceeding. The defendants do, however raise a point worthy of further discussion, that the government is now retaining the vehicles under the authority of 21 U.S.C. § 853 without prior judicial approval or any apparent statutory authority. See 21 U.S.C. § 853(e); United States v. Millan-Colon, 836 F.Supp. 994 (S.D.N.Y.1993) (following seizure, government obtained a post-indictment, pre-trial restraining order). To date, that there has been no judicial ratification of the continued restraint of the vehicles, thus depriving the defendants of an opportunity to be heard. When the government opted to abandon an administrative forum under §§ 881 and 888, it foreclosed the defendants of the due process provided for under those procedures. Therefore, if the government chooses to utilize criminal forfeiture, the procedures established under § 853 to provide due process must be followed. A forfeiture under § 853 only occurs upon a conviction. As discussed with the defendant’s other motion, the government is entitled to either restrain or seize assets subject to forfeiture prior to conviction under clearly defined circumstances. See § 853(e), (f). This has not occurred. The government’s present retention of the vehicles is without authority, and they should be returned to the defendants. Finally, since the government has agreed to return the cost bonds, this should be done promptly. IT IS THEREFORE ORDERED that: 1. The defendants’ motion for the return of approximately $86,500 in seized assets is denied. 2. The defendants’ motion for the return of the cost bonds is granted. The government shall return this property forthwith. 3. The defendants’ motion for the return of" }, { "docid": "5098712", "title": "", "text": "agreed to the criminal forfeiture of various assets, including several accounts in the name of C & F. A Final Order of Forfeiture was entered on March 5, 1993, which forfeited to the United States approximately 2.1 million dollars from the seized C & F assets. On June 25,1992, and August 6, 1992, the Government published, in the Miami Review and the New York Law Journal respectively, notice of the forfeiture order and of its intent to dispose of the funds contained in the order, in compliance with 21 U.S.C. § 853(n)(l). Petitioners are customers of C & F. After having obtained from the Court an extension of the requisite time within which to file petitions contesting the forfeiture order, pursuant to 21 U.S.C. § 853(n)(2), on December 8, 1995, petitioners filed petitions claiming a legal interest in the seized assets. Specifically, they alleged that they had purchased United States dollar cheeks from C & F through transactions, whereby, with two exceptions, they exchanged an equivalent amount of Equadorian sucres for the dollar checks purchased. In two instances — the exceptions noted above — the dollar checks were purchased not with sucres but with American dollars. Contending that under 21 U.S.C. § 853(n)(2) and (n)(6), petitioners lack standing to contest the forfeiture, the Government seeks dismissal of the petitions. For the reasons stated below, we agree with the Government and dismiss the petitions. DISCUSSION The relevant statutory law provides that Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may ... petition the court for a hearing to adjudicate the validity of his alleged interest in the property____ 21 U.S.C. § 853(n)(2) (emphasis added). Once a petition has been filed under (n)(2), the court conducts a hearing to determine whether (A) the petitioner has a legal right, title, or interest in the property, ... [that] was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the" }, { "docid": "10622462", "title": "", "text": "hearing after the government seized their property. Both, accord ing to Liquidators, constitute an “injury” sufficient to satisfy Article III standing. We disagree. Neither constitutes a legally cognizable injury in light of the statutory scheme specifying the process accorded to Liquidators in connection with a criminal forfeiture. Section 853(n) provides Liquidators an adequate opportunity to protect their claimed interest in the funds and bonds in an ancillary proceeding where they may present evidence, offer witnesses, and cross-examine witnesses who appear at the hearing. 21 U.S.C. § 853(n)(5). Although the government seized the funds and bonds from accounts Liquidators control, whether the seizure actually injures Liquidators is conjectural or hypothetical because it depends on the district court’s findings on who possesses superior title to the res under § 853(n)(6). If the district court determines that Liquidators have a superior legal right, title, or interest in the property, the court must amend the order of forfeiture to divest the United States’ interest in the forfeited property. Id. § 853(n)(6). Moreover, as government counsel conceded at oral argument, Liquidators may obtain pre-judgment accrued interest in the amount the government actually earned while wrongfully holding the money. The district court shall bind the government accordingly if it ultimately rules in Liquidators’ favor. Liquidators present no reason why the ancillary proceeding would inadequately protect their interest in adjudicating their competing claim to the property. In the proceedings that we understand the district court will promptly commence below, Liquidators may present all arguments and defenses to defeat the government’s forfeiture, including those raised in their seizure motion and on appeal. We express no opinion on the merits of those arguments, and the district court may freely apply the law to the facts as it finds them during the ancillary proceedings. The district court deferred hearing Liquidators’ motion for return of the seized funds until the ancillary proceeding and at no time held that it would not consider the arguments raised in their seizure motion. [7] At oral argument, Liquidators’ counsel attributed the inadequacy of the ancillary proceeding to the delay between the government’s seizure and the" }, { "docid": "14225926", "title": "", "text": "an appeal would suspend any seizures until completion of that appeal and I want the record to reflect that we fully intend to appeal the verdict of the jury both as to guilt and particularly as to guilt of Count 1 and as to forfeiture.” This statement does not support the petitioners’ estoppel argument. Petitioners contend the November 3 withdrawal of their petition was made in the belief that the appeal stayed the forfeiture. Further, they contend that because neither the district court nor the assistant U.S. attorney corrected this erroneous belief when DeSalvo expressed it, the government is estopped from proceeding with the forfeiture. The district court rejected this argument and refused to reinstate the petitions. This finding can only be reversed if it was an abuse of discretion. See United States v. One 1972 44’ Striker, Bonanza, 753 F.2d 867, 869 (11th Cir.1985). The district court found that since the petitioners knew to file a petition within thirty days, they were aware that the petition was required to allow them to intervene in the action. This finding was not an abuse of discretion. Moreover, parties who assert estoppel must prove that their reliance was induced. See Restatement (Second) of Contracts § 90 (1979). There is no evidence of inducement here. The Seventh Circuit has established a procedure for forfeiture cases where, due to procedural considerations, the trial court did not conduct a hearing on the merits. In such cases, the trial court is to conduct an independent review of its forfeiture order. United States v. De Ortiz, 910 F.2d 376, 384 (7th Cir.1990). The court here conducted such a review and concluded that “these petitioners have no right to any interests in the properties.” This finding is not clearly erroneous. See United States v. Reckmeyer, 836 F.2d 200, 204 (4th Cir.1987). Petitioners also wish to stay the forfeiture proceedings. 21 U.S.C. § 853(h) allows this if they can show that they would otherwise suffer irreparable harm, injury, or loss. The provisions of section 853(k), which bar intervention other than under section 853(n), do not apply to section 853(h)" } ]

[ { "docid": "22607641", "title": "", "text": "297 F. 2d, at 596, and in Evans, 353 U. S. 976, where the affiant was a man who “came to the headquarters of the federal liquor law enforcement officers and stated that he wished to give information . . . ,” 242 F. 2d, at 535. In summary, the informátion must be more than mere wholly unsupported suspicion but less than “would justify condemnation,” as Chief Justice Marshall said in Locke v. United States, 7 Cranch 339, 348 (1813). As Chief Justice Taft said in Carroll v. United States, 267 U. S. 132, 162 (1925): Probable cause exists where '“the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] . . . sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. And as Mr. Justice Rutledge so well stated in Brinegar v. United States, 338 U. S. 160, 176 (1949): “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Believing that the Court has substituted a rigid, academic formula for the unrigid standards of reasonableness and “probable cause” laid down by the Fourth Amendment itself — a substitution of technicality for practicality— and believing that the Court’s holding will tend to obstruct the administration of criminal justice throughout the country, I respectfully dissent. Mr. Justice Black," } ]

[ { "docid": "22879788", "title": "", "text": "crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusion of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would be to leave law-abiding citizens at the mercy of the officer’s whim or caprice.” We agree that vagrancy was an unsuitable ground for the arrest. We note, however, that the record m this case fails to show bad faith on the part of the officers in making the arrest for vagrancy. The testimony, suggests that Officer Kiseeker made what appears to be an honest mistake in specifying the reason for arrest. The circumstances do not give rise to the inference that the arrest was effected for the purpose of creating an excuse to search, which would make both the arrest and search illegal under the principles enunciated in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). In this case, Officer Kiseeker was on the lookout for the robbery suspects and he directed Klingler’s arrest with knowledge of a robbery that had recently been committed. Objectively, the facts known to Kiseeker prior to the arrest and search met the standard of probable cause. Notwithstanding the officer’s mistaken statement of grounds, the existence of probable cause for a robbery arrest prevents the vagrancy arrest from being considered pretextual. See, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Barnett v. United States, 384 F.2d 848 (5th Cir. 1967); Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (1966); Feguer v. United States, 302 F.2d 214, 245-248 (8th Cir. 1962), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962); Bell v. United States, 102 U.S.App.D.C. 383, 254 F.2d" }, { "docid": "3211322", "title": "", "text": "probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.” See, also, Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; White v. United States, 8 Cir., 1971, 448 F.2d 250 per. Despite the different standards applied, a warrantless search of a motor vehicle must still meet the requirements of probable cause and reasonableness. The search must not be remote in time or place when the securing of a warrant would be practicable. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. Nor will the search be sustained if the arrest for a traffic violation is a mere pretext for an exploratory search. Amador-Gonzalez v. United States, 5 Cir., 1968, 391 F.2d 308; United States v. Owens, 7 Cir., 1965, 346 F.2d 329. The circumstances justifying the search in each case must rise to probable cause and reasonableness. These standards must of necessity be applied in a flexible manner. In Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, Mr. Justice Rutledge noted: “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating" }, { "docid": "7373362", "title": "", "text": "the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [69 L.Ed. 543, 555, 45 S.Ct. 280, 39 A.L.R. 790]. “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice. “The troublesome line posed by the facts in the Carroll case and this case is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances. No problem of searching the home or any other place of privacy was presented either in Carroll or here. * * * But one who recently and repeatedly has given substantial ground for believing that he is engaging in the forbidden transportation in the area of his usual operations has no * * * immunity, if the officer who intercepts him in that region knows that fact at the time he makes the interception and the circumstances under which it is made are not such as to indicate the suspect is going about legitimate affairs.” Brinegar v. United States, supra, 338 U.S. pp. 175-177, 69 S.Ct. pp. 1310-1311, 93 L.Ed. pp. 1890-1891. It is, of course, conceivable that the defendants Haskins and Mrs. Cook might have come in this automobile, ■ despite its and their reputations, to the Stover residence for" }, { "docid": "164411", "title": "", "text": "v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In this case, defendants concede that on plaintiffs version of the facts, which we must credit for purposes of summary judgment, Jensen’s detention and interrogation of Paul constituted a seizure, and we agree. See Doe v. Heck, 327 F.3d 492, 509-10 & n. 15 (7th Cir.2003). We must therefore decide whether Jensen had probable cause to seize Paul and, if not, whether Jensen is entitled to qualified immunity because the law was not clearly established at the time of the interrogation. A. Probable Cause “Probable cause exists where the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (internal quotation marks omitted); see also Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Further, “[b]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable [people], acting on facts leading sensibly to their conclusions of probability.” Brinegar, 338 U.S. at 176, 69 S.Ct. 1302. The Stoots argue that Jensen violated Paul’s Fourth Amendment rights by relying solely on “the confused statement from a 4-year-old girl made during an improperly conducted interview” to justify Paul’s seizure. They note that A.B. provided “vastly different reports about what was alleged to have happened, when, where, and with whom” — inconsistencies that should have raised “serious concerns about the veracity and reliability of the allegation made by A.B.” And they maintain that a reasonable officer, presented with A.B.’s contradictory account of alleged abuse, should have engaged in a more thorough investigation to corroborate A.B.’s allegations before seizing and interrogating Paul. Had" }, { "docid": "22963970", "title": "", "text": "interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” (Footnotes omitted.) See Draper v. United States, supra, 358 U.S. at 311-312, 79 S.Ct. 329; United States v. Heitner, 149 F.2d 105, 106 (2 Cir.), cert. denied sub nom. Cryne v. United States, 326 U.S. 727, 66 S.Ct. 33, 90 L.Ed. 432 (1945); Cervantes v. United States, 263 F.2d 800, 803 (9 Cir. 1959). In the light of these principles there was abundant evidence to support a finding that the officers had probable cause to justify their arrest of the appellant. Thompson told two narcotics agents operating in undercover capacities that his source of supply was a girl whose description fitted that of the appellant. This information standing alone was perhaps not enough to give the Government reasonable grounds for arresting Mrs. Smith, for when the agents’ only knowledge of the defendant’s crime is the statement of an informer who the agents do not know to be reliable, it has generally been held that the agents do not have probable cause for an arrest. See Rodgers v. United States, supra, 267 F.2d at 85; Contee v. United States, 94 U.S.App.D.C. 297, 215 F.2d 324, 326-327 (1954), and cases cited therein at 327 n. 1; Wrightson v. United States, supra, 222 F.2d at 558 n. 3; Cervantes v. United States, supra, 263 F.2d at 804 (dictum). The Government asserts that a statement by a narcotics peddler to a federal agent while" }, { "docid": "19233063", "title": "", "text": "were held in default of $100,000 or more bond; 11 were held on bond of $50,000 to $99,000; 180 were held on bond of $5,000 to $49,000; and 288 were held on bond of $4,900 or less. Trial Tr. 1070. . See Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975): Pretrial detainees are no more than defendants waiting for trial, entitled to the presumption of innocence, a speedy trial and all the rights of bailees and other ordinary citizens except those necessary to assure their presence at trial and the security of the prison. In providing for their detention, correctional institutions must be more than mere depositories for human baggage and any deprivation or restriction of the detainees’ rights beyond those which are necessary for confinement alone, must be justified by a compelling necessity. See Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974). . There are important reasons why the presumption of innocence should continue to protect a defendant held in pretrial detention. The presumption rests in the first instance on the possibility of mistake inhering in the process of arrest and prosecution. To protect the community from crime, government may arrest a person on a showing of probable cause and incarcerate him until trial for various reasons set by statute. But as the Supreme Court has noted, “[i]n dealing with probable cause ... we deal with probabilities.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Persons may be detained on evidence less than necessary to prove guilt beyond a reasonable doubt “[bjecause many situations which confront officers in the course of executing their duties are more or less ambiguous” and “room must be allowed for some mistakes on their part.” Id. at 176, 69 S.Ct. at 1311. Despite the oversight of a neutral judi cial officer, the chance of error persists because the determination of probable cause need not be made in an adversary proceeding with the safeguards of appointed counsel and cross-examination of witnesses. See Gerstein v. Pugh, 420" }, { "docid": "23031591", "title": "", "text": "note 42, 267 U.S. at 162, 45 S.Ct. 280. “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding-citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, supra note 42, 338 U.S. at 176, 69 S.Ct. at 1311. . “The troublesome line * * * between mere suspicion and probable cause. * * * ” is one that “necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.” Id. at 176, 69 S.Ct. at 1311. See also Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Bailey v. United States, supra note 8, 389 F.2d at 308. . Brinegar v. United States, supra note 42, 338 U.S. at 175, 69 S.Ct. at 1310. . United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Draper v. United States, supra note 38, 358 U.S. at 311-312, 79 S.Ct. 329; Brinegar v. United States, supra note 42, 338 U.S. at 172-173, 69 S.Ct. 1302; Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364 (1813); Bailey v. United States, supra note 8, 389 F.2d at 308-309. . See Brown v. United States, 125 U.S.App.D.C. 43, 46, 365 F.2d 976, 979 (1966). Compare Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862 (1965). . Brinegar v." }, { "docid": "2612244", "title": "", "text": "a new exigency that justifies the warrantless entry into Defendant’s home. United States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir.1996). The court assesses the police officers’ belief in the existence of an exigent circumstance based upon the “objective facts reasonably known to, or discoverable by, the officers at the time of the search.” United States v. Tibolt, 72 F.3d 965, 969 (1st Cir.1995). See also Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). But this is a relatively forgiving standard, as the Supreme Court explained: “Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” Ibid, (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Upon approaching 123 Imperial Point, Officer Germany knew that the house had reportedly been vacant for some time and that a neighbor had called and reported a light on inside. Checking the doors and windows, Officer Germany saw and heard nothing amiss until he reached the front door, which he found ajar. The fact that the officer neither saw signs of forced entry nor heard any noises does not mean there were no possible crimes being committed inside. The house was two stories; the officer testified that a light was on upstairs. Obviously, he could not see into the second floor windows. The house was also not small. It had several bedrooms and a basement. It certainly would be possible for an intruder to have been inside the house, even talking or vandalizing the place, without noise being audible from outside. Therefore, all the officer knew was that a house, reported by a named neighbor to have been vacant for some time, had lights on, no car visible suggesting the owner had returned, and that the front door was ajar, with no porch lights on. Even if the officer could see no signs that" }, { "docid": "11499638", "title": "", "text": "way indicated appellant’s participation ; and likewise the fact that appellant happened to be in a public restaurant where Martinez said she would be in no way indicated her involvement. It is quite true that the interpretations by which the appellant seeks to explain the facts which the officers had before them appear reasonable. However, in determining whether or not these facts establish probable cause depends only upon whether the inferences which the agents drew from them are reasonable. While the standards imposed to determine probable cause for arrest seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, “they also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duty are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice. “The troublesome line posed by [the cases] is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.” Brinegar v. United States, supra, 338 U.S. at page 176, 69 S.Ct. at page 1311. Here it is true, as appellant points out, that prior to the time of the arrival at San Ysidro the agents had never seen or heard of either Martinez, Rodgers or the appellant. They had received no advance tip that Rodgers or Martinez was engaged in smuggling activity. The agents did not check any file or reports on Rodgers, nor, with the exception of a telephone call to the San Diego police which revealed a minor" }, { "docid": "22879787", "title": "", "text": "facts” upon which to arrest Klingler for armed robbery. His subjective opinion is not material. See, Terry v. State of Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A constitutional safeguard predicated on an objective standard requires an even-handed application. From the standpoint of the individual, the figurative zone protecting his privacy and personal integrity may be encroached under the law only by facts and circumstances totaling probable cause for arrest. See, Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed. 2d 142 (1964); Johnson v. United States, 333 U.S. 10, 14, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948). From the standpoint of the government, application of the principle of probable cause must allow room for some mistakes by the arresting officer. As Mr. Justice Rutledge stated in Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949): “These long-prevailing standards [of probable cause] seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusion of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would be to leave law-abiding citizens at the mercy of the officer’s whim or caprice.” We agree that vagrancy was an unsuitable ground for the arrest. We note, however, that the record m this case fails to show bad faith on the part of the officers in making the arrest for vagrancy. The testimony, suggests that Officer Kiseeker made what appears to be an honest mistake in specifying the reason for arrest. The circumstances do not give rise to the inference that the arrest was effected" }, { "docid": "164412", "title": "", "text": "911 (1996); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Further, “[b]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable [people], acting on facts leading sensibly to their conclusions of probability.” Brinegar, 338 U.S. at 176, 69 S.Ct. 1302. The Stoots argue that Jensen violated Paul’s Fourth Amendment rights by relying solely on “the confused statement from a 4-year-old girl made during an improperly conducted interview” to justify Paul’s seizure. They note that A.B. provided “vastly different reports about what was alleged to have happened, when, where, and with whom” — inconsistencies that should have raised “serious concerns about the veracity and reliability of the allegation made by A.B.” And they maintain that a reasonable officer, presented with A.B.’s contradictory account of alleged abuse, should have engaged in a more thorough investigation to corroborate A.B.’s allegations before seizing and interrogating Paul. Had Jensen done so, the Stoots contend, he quickly would have learned that A.B. was “a confused young girl, with a long history of hallucinations, vaginal issues, and reports of sexual abuse by other persons,” whose statements, standing alone, were not sufficiently reliable to constitute probable cause. We agree with the Stoots that A.B.’s statements were not sufficiently reliable to establish probable cause to seize Paul. Law enforcement officers may obviously rely on statements made by the victims of a crime to identify potential suspects. But such information does not, on its own, support a finding of probable cause if the information is not reasonably trustworthy or reliable. See Cortez v. McCauley, 478 F.3d 1108, 1116-22 (10th Cir.2007) (en banc); United States v. Shaw, 464 F.3d 615, 623-26 (6th Cir.2006); Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir.1987). In this case, three factors, taken together, compel the conclusion that the statements made by A.B. to Jensen were not sufficiently trustworthy or reliable to establish probable cause on their own. First, A.B. was four years old" }, { "docid": "23044340", "title": "", "text": "to the suspected premises by announcing his identity, the existence of the arrest warrant, and his desire to search for and arrest the accused person. If the officer has any doubt as to the existence of ‘probable cause’, he should immediately either seek the issuance of a search warrant, or consult with the office of the State’s Attorney for Baltimore City or of the Attorney General of the State of Maryland before attempting entry upon private premises in search of the accused person. “In all instances, consideration should be given to the convenience of the persons whose premises are to be searched and the other residents of the neighborhood. In this connection, it may at times be necessary, and in the public interest, to make such searches in the nighttime when most of the residents would not be on the street, when the possibility of warning and escape would be less, and when greater safety would be afforded the arresting officer. “Copies: Inspectors, All Districts, Divisions, Units.” . But see, for example, cases where courts have enjoined the police from enforcing segregation. Due v. Tallahassee Theatres, Inc., 333 F.2d 630 (5th Cir. 1963) ; Anderson v. City of Albany, Georgia, 321 F. 2d 649 (5th Cir. 1963) ; Williams v. Wallace, 240 F.Supp. 100 (M.D.Ala. 1965). . See Costello v. United States, 298 F.2d 99 (9th Cir. 1962) ; Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556 (D.C.Cir. 1955) ; Contee v. United States, 94 U.S.D.C. 297, 215 F.2d 324, 327 (1954) ; United States v. Ruffner, 51 F.2d 579 (D.Md.1931). See also Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) ; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Even a cursory reading of the Fourth Amendment will not fail to convey the idea that an essential requirement before police may enter a private home is the existence of probable cause: “The right of the people to be secure" }, { "docid": "23289634", "title": "", "text": "their duties.” United States v. Heitner, 149 F.2d 105, 106 (2d Cir.1945) (quoted in Draper v. United States, 358 U.S. 307, 311 n. 4, 79 S.Ct. 329, 332 n. 4, 3 L.Ed.2d 327 (1959)). “Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” Brinegar, 338 U.S. at 176, 69 S.Ct. at 1311. “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 175, 69 S.Ct. at 1310. We hold that, based on the information known to defendants at the pertinent times, probable cause existed to detain Marx for questioning and to arrest Marx. AFFIRMED. . 42 U.S.C. § 1983 (1988), says in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . Because this appeal involves only claims against the three law enforcement officers, references hereinafter to \"defendants” refers to only those individuals. Also, because we affirm summary judgment for all three officers, we make no distinctions between the officers when discussing the events of Marx's arrest. . In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), this court adopted as precedent as decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981. . In Stein v. Reynolds, Inc., 667 F.2d 33, 34 (11th Cir.1982), this court adopted as precedent all decisions of Unit B of the former Fifth Circuit. . Although" }, { "docid": "2612243", "title": "", "text": "Johnson, 22 F.3d 674, 680 (6th Cir.1994); see also United States v. Haddix, 239 F.3d 766, 767 (6th Cir.2001). However, following the lead of other circuits, this circuit has also upheld warrantless searches conducted during suspected burglary investigations under the exigent circumstances exception. United States v. Johnson, 9 F.3d 506, 509 (6th Cir.1993); United States v. Estese, 479 F.2d 1273, 1274 (6th Cir. 1973). In addition, the court has opined that: these existing categories do not occupy the entire field of situations in which a warrantless entry may be justified. As an initial matter, the Fourth Amendment’s broad language of “reasonableness” is flatly at odds with any claim of a fixed and immutable list of established exigencies. Moreover, such a claim would ignore the case-by-case and fact-specific development of the existing categories of exigent circumstances. None of the presently recognized exigencies can claim any special constitutional status; instead, each was a product ... of a particular case in light of underlying Fourth Amendment principles.... Therefore, if the situation dictates, we are not precluded from fashioning a new exigency that justifies the warrantless entry into Defendant’s home. United States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir.1996). The court assesses the police officers’ belief in the existence of an exigent circumstance based upon the “objective facts reasonably known to, or discoverable by, the officers at the time of the search.” United States v. Tibolt, 72 F.3d 965, 969 (1st Cir.1995). See also Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). But this is a relatively forgiving standard, as the Supreme Court explained: “Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” Ibid, (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Upon approaching 123 Imperial Point, Officer Germany knew that the house had reportedly been vacant for some time and" }, { "docid": "3211323", "title": "", "text": "is a mere pretext for an exploratory search. Amador-Gonzalez v. United States, 5 Cir., 1968, 391 F.2d 308; United States v. Owens, 7 Cir., 1965, 346 F.2d 329. The circumstances justifying the search in each case must rise to probable cause and reasonableness. These standards must of necessity be applied in a flexible manner. In Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, Mr. Justice Rutledge noted: “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” 338 U.S. at 176, 69 S.Ct. at 1311. In the instant situation, we must judge the reasonableness of the search from all of the attendant circumstances. We note first that three of the pieces of the stolen welfare check later introduced into evidence had fallen into the “plain view” of the arresting officers. In Harris v. United States, 1968, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069, the court noted: “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (Emphasis supplied.) See, United States v. Patterson, 10 Cir., 1971, 447 F.2d 424; United States v. Harflinger, 8 Cir., 1970, 436 F.2d 928, cert. denied, 1971, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d" }, { "docid": "22713378", "title": "", "text": "was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time.” Id., at 803-804. It would be superfluous to multiply these examples. It is apparent that in order to satisfy the “reasonableness” requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government — whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement — is not that they always be correct, but that they always be rea sonable. As we put it in Brinegar v. United States, 338 U. S. 160, 176 (1949): “Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” We see no reason to depart from this general rule with respect to facts bearing upon the authority to consent to a search. Whether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably. The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. See Archibald v. Mosel, 677 F." }, { "docid": "12103799", "title": "", "text": "the police officers and their conduct should be gauged by the standard set forth in Garrison. As in Garrison the police verified their information regarding the identity of the apartment with the Baltimore Gas and Electric Company. The Court in Garrison reiterated that “ ‘[b]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.’ ” 480 U.S. at - n. 11, 107 S.Ct. at 1018 n. 11, 94 L.Ed.2d at 82 n. 11 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Suppression of the evidence here would clearly run counter to the reasoning of Garrison. The Court there articulated the underlying rationale which compelled rejection of the argument for suppression. It would brand as illegal the execution of any warrant in which, due to a mistake in fact, the premises intended to be searched vary from their description in the warrant. Yet in this case, in which the mistake in fact does not invalidate the warrant precisely because the police do not know of the mistake in fact when they apply for, receive, and prepare to execute the warrant, the police cannot reasonably know prior to their search that the warrant rests on a mistake in fact. Id. 480 U.S. at - n. 14, 107 S.Ct. at 1019 n. 14, 94 L.Ed.2d at 83 n. 14. The officers had a reasonable and objective basis on which to conclude that the warrant authorized a search of the apartment numbered 324. This determination was much more than a calculated guess and cannot be described as an effort to conduct a fishing expedition. The officers were justified in using common sense and reliable information known to them outside the four comers of the warrant and affidavit to assist in determining the place actually authorized by the warrant to be searched. They were not prohibited from making a" }, { "docid": "12103798", "title": "", "text": "officers were justified in their belief that there was a good likelihood that if narcotics were in the apartment they would be destroyed or removed unless immediate action was taken. The warrant authorized the search of an apartment on the third floor of building 3901. There were only two apartments on that floor and one appeared to have never been occupied. The affidavit clearly identified the apartment to be searched as one that was occupied and Wilson’s statement confirmed the officers’ observations that it had to be the one on the right. No other apartment fit that description. Based on this information, “the right number was readily ascertainable.” United States v. Bentley, 825 F.2d 1104, 1109 (7th Cir.), cert. denied, — U.S.-, 108 S.Ct. 240, 98 L.Ed.2d 198 (1987). Under all of these circumstances, “there was no probability of a mistaken search, and we cannot conclude that the inaccurate address in the warrant should operate to invalidate the search.” United States v. Clement, 747 F.2d 460, 461 (8th Cir.1984). An honest mistake was made by the police officers and their conduct should be gauged by the standard set forth in Garrison. As in Garrison the police verified their information regarding the identity of the apartment with the Baltimore Gas and Electric Company. The Court in Garrison reiterated that “ ‘[b]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.’ ” 480 U.S. at - n. 11, 107 S.Ct. at 1018 n. 11, 94 L.Ed.2d at 82 n. 11 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Suppression of the evidence here would clearly run counter to the reasoning of Garrison. The Court there articulated the underlying rationale which compelled rejection of the argument for suppression. It would brand as illegal the execution of any warrant in which, due to a mistake in fact, the" }, { "docid": "23289633", "title": "", "text": "he denied raping Kristina, and defendants had Marx’s statement — made in response to questioning about why Kristina would implicate him — that Kristina “knew [he] left her and came back in the house and left her out there.” That a defendant is subsequently acquitted or charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself. See Trivette v. State, 244 So.2d 173, 175 (Fla.App.1971); Brown v. State, 91 So.2d 175, 177 (Fla.1956); see also Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979) (“The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released.”). As Judge Learned Hand wrote, “the ‘reasonable cause’ necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.” United States v. Heitner, 149 F.2d 105, 106 (2d Cir.1945) (quoted in Draper v. United States, 358 U.S. 307, 311 n. 4, 79 S.Ct. 329, 332 n. 4, 3 L.Ed.2d 327 (1959)). “Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” Brinegar, 338 U.S. at 176, 69 S.Ct. at 1311. “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 175, 69 S.Ct. at 1310. We hold that, based on the information known to defendants at the pertinent times, probable cause existed to detain Marx for questioning and to arrest Marx. AFFIRMED. . 42 U.S.C. § 1983 (1988), says in pertinent part: Every person" }, { "docid": "23031590", "title": "", "text": "the case at bar. . But see note 51, infra. . E.g., Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). . Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), quoting Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which in turn quoted McCarthy v. De Armit, 99 Pa.St. 63, 69 (1881). “The sum total of the reams that have been written on the subject is that a peace officer may arrest without a warrant when he has reasonable grounds, in light of the circumstances of the moment as viewed through his eyes, for belief that a felony has been committed and that the person before him committed it.” Bell v. United States, 102 U.S.App.D.C. 383, 388, 254 F.2d 82, 87, cert. denied 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed.2d 113 (1958). . Beck v. Ohio, supra note 38, 379 U.S. at 96, 85 S.Ct. at 228, quoting Carroll v. United States, supra note 42, 267 U.S. at 162, 45 S.Ct. 280. “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding-citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, supra note 42, 338 U.S. at 176, 69 S.Ct. at 1311. . “The troublesome line * * * between mere suspicion and probable cause. * * * ” is one that “necessarily" } ]

[ { "docid": "18806648", "title": "", "text": "§ 522(b)(2)(A). California Civil Procedure Code § 704.-115(a) (West 1987) provides an exemption for “Profit-sharing plans designed and used for retirement purposes” and for “Private retirement plans.” Bloom argues that her two plans are covered by these two exemptions. The Trustee argues that Bloom’s heavy borrowing indicates that she did not use the plans for a retirement purpose. Instead, he contends, they became a type of tax-free savings account, from which Bloom could take money at will. We recently considered a similar argument. In In re Daniel, 771 F.2d 1352 (9th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986), we discussed California Civil Procedure Code § 690.18(d), the predecessor of § 704.115. There the debtor had established a medical corporation, which in turn had created a pension and profit-sharing plan. Daniel managed and controlled the plan. Acting as the plan’s trustee, he made a $75,000 unsecured loan to himself so that he could buy a house. The loan, which “was substantially equal to the debtor’s interest in the plan,” id. at 1357, was secured only by Daniel’s interest in the plan. He never made interest or principal payments- on the loan; and when the original note came due, he rolled it over. Two weeks before filing bankruptcy, he deposited “all the corporation’s available cash,” $39,000, in the plan. Id. at 1354. We held that because “the plan essentially operated to meet debtor’s short-term personal needs by lending money or shielding and hiding funds from creditors,” it was not principally used for retirement purposes. Id. at 1358. We therefore denied the exemption. Bloom does not deny that profit-sharing plans must be designed and used for retirement purposes in order to be exempt. She argues, however, that retirement plans need not be held to the same standard. Apparently she would have us hold that any plan declared to be a “private retirement plan” is exempt merely by virtue of its name. It is true that § 704.115 does not explicitly require private retirement plans to be “designed and used for retirement purposes” in order to be exempt." } ]

[ { "docid": "13969471", "title": "", "text": "look to California’s exemptions. In California, debtors have the additional option of choosing between exemptions available to non-bankrupts, and the State bankruptcy exemptions, which are identical to the federal exemptions. See CCP § 703.140(b)(l-ll) and 11 U.S.C. § 522(d). The Debtors here chose to claim their exemptions under California non-bankruptcy law, specifically CCP § 704.115. CCP § 704.115(a) provides an exemption for all amounts held “in private retirement plans.” “Private retirement plans” are defined as: (1) Private retirement plans, including, but not limited to, union retirement plans; (2) Profit-sharing plans designed and used for retirement purposes; (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 ... Section 704.115(b) provides that “[a]ll amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability pay ment, or death benefit from a private retirement plan are exempt.” (Emphasis added.) However, section 704.115(a)(3) plans are subject to the condition found in section § 704.115(e) which provides: Notwithstanding subdivisions (b) ... the amounts described in paragraph (3) of subdivision (a) are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires.... CCP § 704.115(e) (emphasis added). Thus, the statutory language is clear that the subsection (e) limitation applies only to sub-paragraph (3) plans, which are either self-employed plans or individual retirement accounts and annuities (IRAs). The Debtors’ retirement plans are neither self-employed plans, nor IRAs. The words of this statute must be interpreted to mean what they say. “Courts must presume that a legislature says in a statute what it means and means in a statute what it says.” Nesovic v. United States, 71 F.3d 776 (9th Cir.1995) quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-53, 112 S.Ct. 1146, 1149-50, 117 L.Ed.2d 391" }, { "docid": "18293932", "title": "", "text": "the asset side of the balance sheet. 11 U.S.C. § 101(32)(A)(ii). . The version of § 704.115(a)(3) in effect in 1992 was: (a) As used in this section, \"private retirement plan” means: (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended, to the extent the amounts held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code. Cal.Civ.Proc.Code § 704.115(a)(3) (West Supp.1992). A 1999 amendment substituted \"1986” for \"1954” and added the clause: \"including individual retirement accounts qualified under Section 408 or 408A of that code.” Id. (West Supp.2000). Subsection (e) provides, in relevant part: (e) ... [T]he amounts described in [§ 704.115(a)(3)] are exempt only to the extent necessaiy to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires. Cal.Civ.Proc.Code § 704.115(e) (West 1987 & Supp.2000). . There is a continuing concealment doctrine. Hughes v. Lawson (In re Lawson), 122 F.3d 1237, 1240-42 (9th Cir.1997), aff'g 193 B.R. 520 (9th Cir. BAP 1996); Rosen v. Bezner (In re Rosen), 996 F.2d 1527, 1531-32 (3d Cir. 1993); Thibodeaux v. Olivier (In re Olivier), 819 F.2d 550, 554-55 (5th Cir.1987); Friedell v. Kauffman (In re Kauffman), 675 F.2d 127, 128 (7th Cir.1981) (Bankruptcy Act). . . The legend related by Cicero is that Damocles, a courtier of Dionysius the Elder in the 4th Century BCE, opined how happy the ruler must be. Dionysius made the point that such happiness was tempered by precarious fortune by seating Damocles at a banquet beneath a sword that was suspended over Damocles’ head by a single horse hair. Cicero, Tusculanae Disputationes, 5.61. . Because the debtor’s discharge is being denied pursuant to § 727(a)(2)(A) and the transfer is being avoided under UFTA, we need not address the remainder of the arguments." }, { "docid": "348888", "title": "", "text": "amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement, allowance, disability payment, or death benefit from a private retirement plan are exempt. The term “private retirement plan” is defined in section 704.115(a)(l)-(3). As noted by the bankruptcy court in In re Phillips, 206 B.R. 196, 200 (Bankr.N.D.Cal.1997), paragraph (1) of section 704.115(a) provides an unhelpful tautological definition: a private retirement plan consists of a “private retirement plan.” The Ninth Circuit and other courts have filled this definitional void by providing an analytical framework to determine whether a plan qualifies as a private retirement plan under section 704.115(b), as defined by section 704.115(a)(1). First, the court must consider the use of the word “plan” in section 704.115(a)(1). A plan requires more than the instantaneous transmutation of a lump sum of previously nonexempt money or other assets into an exempt retirement plan. It contemplates the gradual accumulation of money to fund a future retirement. This is supported by the language of the statute, which provides that a private retirement plan means “private retirement plans, including, but not limited to, union retirement plans.” Cal.Civ.Proc. Code § 704.115(a)(1). Union retirement plans provide for a retirement income funded by employee and employer annual contributions made over a long period of time. In this case, the debtors purchased the annuity with proceeds from a home sale. The annuity was not purchased for the debtors by an employer, nor does it represent the gradual investment of contributed funds. Second, the amount exemptible in a private retirement plan under section 704.115(a)(1) is unlimited. That is, the exemption is not limited to what is neces sary to support a debtor. If the court were to permit the debtors’ exemption of the annuity, then, any debtor could avoid a loss of all assets to a bankruptcy trustee or a levying judgment creditor by declaring that those assets are funding a private retirement plan. It would be strange indeed if a person with a substantial net worth could avoid paying any debts, forever, through this mechanism. Paragraph" }, { "docid": "16175594", "title": "", "text": "dispositive here. C In sum, a single-premium annuity does not qualify categorically as life insurance under California Civil Procedure Code section 704.100(a), and the bankruptcy court did not err in concluding that this particular instrument did not qualify as exempt life insurance under California law. III The BAP and the bankruptcy court did not err in concluding that the Keyport Annuity does not qualify as an exempt private retirement plan under California law. In examining this contention, we employ the same analytical framework as applied to the life insurance exemption: we first examine as a matter of statutory interpretation whether the asset qualifies categorically and, if it does not, we then examine as a factual matter whether this particular instrument qualifies as such. A The annuity does not qualify categorically as an exempt private retirement plan under California Civil Procedure Code section 704.115(b). That section allows a debtor to shield the assets that he has accumulated in a private retirement plan from the bankruptcy estate. Section 704.115(b) provides: All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt. A “private retirement plan” is not a generic term referring to any retirement plan. Rather, in order to be a “private retirement plan,” the asset must meet one of the three possible definitions specified in subsection (a) of the statute: (1) Private retirement plans, including, but not limited to, union retirement plans. (2) Profit-sharing plans designed and used for retirement purposes. (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1986. Id. § 704.115(a). The statute does not indicate that whether an asset is “designed and used for retirement purposes” has any bearing on whether it constitutes a “private retirement plan” under section 704.115(b). Rather, if the annuity does not meet any of the statutory definitions for private retirement plan, it is not exempt under the statute. Single-premium annuities do not qualify categorically as private retirement" }, { "docid": "13969470", "title": "", "text": "necessary to provide for the support of the debtor and the debtor’s spouse and dependents upon retirement, pursuant to § 704.115(e). DISCUSSION This ease involves a question of California statutory construction and the appeal of a BAP decision. Questions of statutory interpretation are subject to de novo review, In re Pikush, 157 B.R. 155, 156 (9th Cir. BAP 1993), aff'd, 27 F.3d 386 (9th Cir.1994), as are decisions of the BAP. In re Johnston, 21 F.3d 323, 326 (9th Cir.1994). The filing of a petition under the Bankruptcy Code creates an estate, comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). However, the Bankruptcy Code also permits individual debtors to exempt certain kinds of assets from the bankruptcy estate. 11 U.S.C. § 522. A debtor may exempt either those assets delineated in the federal Bankruptcy Code or those assets exempted by the law of the debtor’s state. 11 U.S.C. § 522(b)(2)(A). The Debtors here, who reside in California, have chosen to look to California’s exemptions. In California, debtors have the additional option of choosing between exemptions available to non-bankrupts, and the State bankruptcy exemptions, which are identical to the federal exemptions. See CCP § 703.140(b)(l-ll) and 11 U.S.C. § 522(d). The Debtors here chose to claim their exemptions under California non-bankruptcy law, specifically CCP § 704.115. CCP § 704.115(a) provides an exemption for all amounts held “in private retirement plans.” “Private retirement plans” are defined as: (1) Private retirement plans, including, but not limited to, union retirement plans; (2) Profit-sharing plans designed and used for retirement purposes; (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 ... Section 704.115(b) provides that “[a]ll amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability pay ment, or death benefit from a private retirement plan are exempt.” (Emphasis added.) However, section 704.115(a)(3) plans are subject to the condition found in section § 704.115(e) which" }, { "docid": "348887", "title": "", "text": "1998, prior to filing the petition, the debtors sold their home and used a portion of the sale proceeds to purchase an annuity. The debtors have failed to produce a copy of the annuity contract but they have described it in Mr. Barnes’ declaration filed on October 24, 2001. As described, the debtors used cash realized from the sale of their home to purchase a future stream of income to be paid to them by Sun Life, the issuer of the annuity contract. If Mr. Barnes dies, Mrs. Barnes will receive the higher of the value of the account or the money paid by the debtors to Sun Life (less distributions) plus 5% per year through Mr. Barnes’ eightieth birthday at which point the policy is convertible to an annuity. On amended Schedule C, the debtors claimed the annuity as exempt pursuant to Cal.Civ.Proc.Code §§ 704.115 and 704.100(c). In responding to the trustees’ objections, the debtors also maintain that the annuity is exempt pursuant to CaLCiv. Proc.Code § 704.100(a). 1 Section 704.115(b) provides that: All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement, allowance, disability payment, or death benefit from a private retirement plan are exempt. The term “private retirement plan” is defined in section 704.115(a)(l)-(3). As noted by the bankruptcy court in In re Phillips, 206 B.R. 196, 200 (Bankr.N.D.Cal.1997), paragraph (1) of section 704.115(a) provides an unhelpful tautological definition: a private retirement plan consists of a “private retirement plan.” The Ninth Circuit and other courts have filled this definitional void by providing an analytical framework to determine whether a plan qualifies as a private retirement plan under section 704.115(b), as defined by section 704.115(a)(1). First, the court must consider the use of the word “plan” in section 704.115(a)(1). A plan requires more than the instantaneous transmutation of a lump sum of previously nonexempt money or other assets into an exempt retirement plan. It contemplates the gradual accumulation of money to fund a future retirement. This is supported by the language of the statute," }, { "docid": "8310573", "title": "", "text": "or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances, such plan, fund, or program— (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond ... . C.P.C. § 15304. Cases In which settlor is beneficiary . An exhaustive search has not revealed any published California case law either similar or analogous to the instant case. Therefore, although in both cited cases the Ninth Circuit Court of Appeals and Bankruptcy Appellate Panel were technically interpreting Arizona law regarding self-settled trusts, each court's analysis and conclusions are highly persuasive here. . Code § 522(b)(2)(A) provides in pertinent part: (b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection. (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition ... . C.C.P. § 704.115 provides, in pertinent part: (a) As used in this section, “private retirement plan” means: (1) Private retirement plans, including, but not limited to, union retirement plans. (2) Profit-sharing plans designed and used for retirement purposes. (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended, to the extent the amount held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code. (e) Notwithstanding subdivisions (b) and (d), except as provided in subdivision (f), the amounts described in paragraph (3) of subdivision (a) are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that" }, { "docid": "348890", "title": "", "text": "(a)(1) of section 704.115 “does not extend to protect anything a debtor unilaterally chooses to claim as intended for retirement purposes.” In re Rogers, 222 B.R. 348, 351 (Bankr.N.D.Cal.1998). See also Lieberman v. Hawkins (In re Lieberman), 245 F.3d 1090, 1094 (9th Cir.2001) (“[I]f a debtor were permitted to exempt a fund created by himself under § 704.115(a)(1), ... ‘the “necessary for support” limitation for plans created by the debtor under [§ 704.115(a)(3) ] would be eviserated.’ ” Quoting Rogers.). This case is nearly identical to the facts in Rogers. There, the debtor converted non-exempt equity from her home into an annuity on the eve of bankruptcy. The court sustained the objection to the exemption of the annuity pursuant to section 704.115(a)(1). Here, the debtors purchased an annuity under the same circumstances and asserted that the annuity is made exempt by the simple fact that they intend the annuity to fund, in part, their retirement. Subjective intent alone is not sufficient for the creation of an exemptible private retirement plan. Third, the debtors’ retirement plan was not established by a third party. In Lieberman the Ninth Circuit held: The ... legislative history [of § 704.115(a)(1) ] leads to the conclusion that the legislature intended § 704.115(a)(1) to exempt only retirement plans established or maintained by private employers or employee organization, such as unions, not arrangements by individuals to use specified assets for retirement purposes. Lieberman, 245 F.3d at 1094. No private employer, employee group, or similar organization created the debtors’ asserted private retirement plan. The debtors created it. Therefore, the annuity is not a private retirement plan within the meaning of section 704.115(a)(1). 2 Paragraph (2) of section 704.115(a) provides that a private retirement plan includes a profit-sharing plan designed and used for retirement purposes. The debtors do not contend that the annuity comprises a profit-sharing plan and there is no indication that the annuity was purchased with the profits of a business or some other enterprise. 3 The debtors fare no better under section 704.115(a)(3). The annuity is not a self-employed retirement plan or an individual retirement annuity or" }, { "docid": "348889", "title": "", "text": "which provides that a private retirement plan means “private retirement plans, including, but not limited to, union retirement plans.” Cal.Civ.Proc. Code § 704.115(a)(1). Union retirement plans provide for a retirement income funded by employee and employer annual contributions made over a long period of time. In this case, the debtors purchased the annuity with proceeds from a home sale. The annuity was not purchased for the debtors by an employer, nor does it represent the gradual investment of contributed funds. Second, the amount exemptible in a private retirement plan under section 704.115(a)(1) is unlimited. That is, the exemption is not limited to what is neces sary to support a debtor. If the court were to permit the debtors’ exemption of the annuity, then, any debtor could avoid a loss of all assets to a bankruptcy trustee or a levying judgment creditor by declaring that those assets are funding a private retirement plan. It would be strange indeed if a person with a substantial net worth could avoid paying any debts, forever, through this mechanism. Paragraph (a)(1) of section 704.115 “does not extend to protect anything a debtor unilaterally chooses to claim as intended for retirement purposes.” In re Rogers, 222 B.R. 348, 351 (Bankr.N.D.Cal.1998). See also Lieberman v. Hawkins (In re Lieberman), 245 F.3d 1090, 1094 (9th Cir.2001) (“[I]f a debtor were permitted to exempt a fund created by himself under § 704.115(a)(1), ... ‘the “necessary for support” limitation for plans created by the debtor under [§ 704.115(a)(3) ] would be eviserated.’ ” Quoting Rogers.). This case is nearly identical to the facts in Rogers. There, the debtor converted non-exempt equity from her home into an annuity on the eve of bankruptcy. The court sustained the objection to the exemption of the annuity pursuant to section 704.115(a)(1). Here, the debtors purchased an annuity under the same circumstances and asserted that the annuity is made exempt by the simple fact that they intend the annuity to fund, in part, their retirement. Subjective intent alone is not sufficient for the creation of an exemptible private retirement plan. Third, the debtors’ retirement plan" }, { "docid": "8310574", "title": "", "text": "under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition ... . C.C.P. § 704.115 provides, in pertinent part: (a) As used in this section, “private retirement plan” means: (1) Private retirement plans, including, but not limited to, union retirement plans. (2) Profit-sharing plans designed and used for retirement purposes. (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended, to the extent the amount held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code. (e) Notwithstanding subdivisions (b) and (d), except as provided in subdivision (f), the amounts described in paragraph (3) of subdivision (a) are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires ... . Although the Plan, as amended, is entitled the James J. Witwer M.D., Inc. Profit Sharing Plan, the Debtor and his counsel refer to the Plan as a Pension Plan. The legislative history of C.C.P. § 704.115 lends no assistance in determining, beyond the name of the plan, what distinguishes a private retirement plan from a profit sharing plan. For purposes of analysis, the distinction, is moot since under either type of plan, in order to be entitled to exemption under California law, the plan must be designed and used for retirement purposes. See In re Bloom, 839 F.2d 1376, 1378 (9th Cir.1988). . Curiously, the California legislature fully exempted private retirement plans and profit-sharing plans from the reach of creditors despite exempting self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code only to the extent necessary to provide for the support of the judgment debtor as well as the" }, { "docid": "348891", "title": "", "text": "was not established by a third party. In Lieberman the Ninth Circuit held: The ... legislative history [of § 704.115(a)(1) ] leads to the conclusion that the legislature intended § 704.115(a)(1) to exempt only retirement plans established or maintained by private employers or employee organization, such as unions, not arrangements by individuals to use specified assets for retirement purposes. Lieberman, 245 F.3d at 1094. No private employer, employee group, or similar organization created the debtors’ asserted private retirement plan. The debtors created it. Therefore, the annuity is not a private retirement plan within the meaning of section 704.115(a)(1). 2 Paragraph (2) of section 704.115(a) provides that a private retirement plan includes a profit-sharing plan designed and used for retirement purposes. The debtors do not contend that the annuity comprises a profit-sharing plan and there is no indication that the annuity was purchased with the profits of a business or some other enterprise. 3 The debtors fare no better under section 704.115(a)(3). The annuity is not a self-employed retirement plan or an individual retirement annuity or account “provided for in the Internal Revenue Code of 1986, as amended, ... to the extent the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code.” Cal. Civ.Proc.Code § 704.115(a)(3). Section 704.115(a)(3) provides an exemption only if the self-employed retirement plan is provided for in the Internal Revenue Code of 1986. In other words, it must be a tax qualified plan. A qualified retirement plan is one that satisfies specific requirements of the Internal Revenue Code, particularly I.R.C. § 401(a), entitling it to receive favorable tax advantages. Before 1962, self-employed individuals (sole proprietors and partners) could not participate in or obtain the tax benefits of such retirement plans. Keogh or “H.R. 10” pension plans were authorized by legislation en acted as the Self-Employed Individuals Tax Retirement Act of 1962, Pub.L. No. 87-792, 76 Stat. 809 (1962). The act’s purpose was to provide self-employed individuals with an opportunity to participate in retirement plans on a comparable basis to those offered corporate employees. S.Rep. No. 992 (1961), reprinted" }, { "docid": "18293931", "title": "", "text": "Law Section of the California State Bar.”). . \"Asset” is defined in UFTA as: (a) \"Asset” means property of a debtor, but the term does not include, the following: (1) Property to the extent it is encumbered by a valid lien. (2) Property to the extent it is generally exempt under nonbankruptcy law. Cal. Civ.Code § 3439.01(a). . Insolvency is defined in UFTA as: (a) A debtor is insolvent if, at fair valuations, the sum of the debtor’s debts is greater than all of the debtor’s assets. (d) Assets under this section do not include property that has been transferred, concealed, or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable under this chapter. (e) Debts under this section do not include an obligation to the extent it is secured by a valid lien on property of the debtor not included as an asset. Cal. Civ.Code § 3439.02. The Bankruptcy Code reaches the same result by defining \"insolvent” to exclude exempt property from the asset side of the balance sheet. 11 U.S.C. § 101(32)(A)(ii). . The version of § 704.115(a)(3) in effect in 1992 was: (a) As used in this section, \"private retirement plan” means: (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended, to the extent the amounts held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code. Cal.Civ.Proc.Code § 704.115(a)(3) (West Supp.1992). A 1999 amendment substituted \"1986” for \"1954” and added the clause: \"including individual retirement accounts qualified under Section 408 or 408A of that code.” Id. (West Supp.2000). Subsection (e) provides, in relevant part: (e) ... [T]he amounts described in [§ 704.115(a)(3)] are exempt only to the extent necessaiy to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the" }, { "docid": "16175598", "title": "", "text": "exemption because the debtor treats it as something other than a retirement asset. Thus, while the debtor’s subjective intent cannot create an exemption, it may take one away. Id. Simpson’s sole argument in support of his claimed exemption is that the annuity constitutes a private retirement plan under section 704.115(a)(1), because he subjectively intended to use it as one. As we have noted, a debtor’s subjective intent for or use of the asset is irrelevant to this analysis. Lieberman, 245 F.3d at 1095. Rather, section 704.115(a)(1) applies only to retirement plans set up by private employers, “not by individuals acting on their own, outside of the employment sphere.” Simpson, 366 B.R. at 74 (citing Lieber man, 245 F.3d at 1093). As we explained in Lieberman: [T]he legislature intended § 704.115(a)(1) to exempt only retirement plans established or maintained by private employers or employee organizations, such as unions, not arrangements by individuals to use specified assets for retirement purposes. 245 F.3d at 1095. The Keyport Annuity was not established for Simpson by an employer. Rather, Simpson purchased it as an individual. Thus, regardless of his intentions, Simpson is not entitled to claim an exemption for the annuity as a private retirement plan under section 704.115(b). IV Because the single-premium annuity does not qualify under California law either as life insurance or a private retirement plan, the BAP and the bankruptcy court correctly concluded that the property was not exempt property under federal bankruptcy law. AFFIRMED. . The Internal Revenue Code classifies annuities as either qualified or non-qualified. A qualified annuity is purchased through an employer-provided retirement plan or an individual retirement plan that meets certain requirements (such as an Individual Retirement Annuity or Simplified Employee Pension Plan). 26 U.S.C.A. §§ 72(d)(1)(G), 4974(c)(2) (2006). For example, an \"Individual Retirement Annuity\" cannot be transferable, have fixed premiums, or have a premium that exceeds $6000 in any one year. Id. § 408(b)(1)-(2) and 219(b)(5)(B). Contributions to a qualified annuity may be deductible from the taxable income of the employee or employer who made the contribution. Id. § 219(a). An annuity that does not meet" }, { "docid": "13969469", "title": "", "text": "the Internal Revenue Code. The Debtors contributed to their section 403(b) retirement plans through voluntary reductions in their salaries. In 1991, Creditor Phillip DeMassa obtained a judgment against the Debtors in the amount of $505,923.87, later reduced to $350,-261.12, for breaching a contract to purchase a residence from DeMassa. The Debtors filed a bankruptcy petition under Chapter 7 of Title 11 of the United States Code. They claimed an exemption for their section 403(b) retirement plans and their individual retirement accounts (IRAs), pursuant to California Code of Civil Procedure (CCP) § 704.115. The bankruptcy court and the BAP found, in unpublished decisions, that the value of the section 403(b) retirement plan annuities were fully exempt from the bankrupt estate under CCP § 704.115(a)(1) and (b), but that the Debtors’ IRAs were not exempt because they were not reasonably necessary to provide for the support of the debtors upon retirement, pursuant to CCP § 704.115(e). The Creditors and Trustee contend that section 403(b) private retirement plan annuities, like the IRAs, are exempt only to the extent necessary to provide for the support of the debtor and the debtor’s spouse and dependents upon retirement, pursuant to § 704.115(e). DISCUSSION This ease involves a question of California statutory construction and the appeal of a BAP decision. Questions of statutory interpretation are subject to de novo review, In re Pikush, 157 B.R. 155, 156 (9th Cir. BAP 1993), aff'd, 27 F.3d 386 (9th Cir.1994), as are decisions of the BAP. In re Johnston, 21 F.3d 323, 326 (9th Cir.1994). The filing of a petition under the Bankruptcy Code creates an estate, comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). However, the Bankruptcy Code also permits individual debtors to exempt certain kinds of assets from the bankruptcy estate. 11 U.S.C. § 522. A debtor may exempt either those assets delineated in the federal Bankruptcy Code or those assets exempted by the law of the debtor’s state. 11 U.S.C. § 522(b)(2)(A). The Debtors here, who reside in California, have chosen to" }, { "docid": "13969474", "title": "", "text": "exemption for the corpus of private retirement plans is to safeguard a stream of income for retirees at the expense of bankruptcy creditors. In re Witwer, 148 B.R. 930, 941 (Bankr.C.D.Cal.1992), aff'd., 163 B.R. 614 (9th Cir. BAP 1994); Yaesu Electronics Corp. v. Tamura, 28 Cal.App.4th 8, 33 Cal. Rptr.2d 283 (1994). There may be no logical reason why a doctor who works for a nonprofit hospital should be treated differently than one working for a profit hospital who has an IRA, or one who has a self-employed retirement plan, but that is what the clear language of CCP § 704.115 provides. Curiously, the California legislature fully exempted private retirement plans and profit-sharing plans from the reach of creditors despite exempting self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code only to the extent necessary to provide for the support of the judgment debtor as well as the debtor’s spouse and dependents. In re Witwer, supra, 148 B.R. at 940 n. 12. CONCLUSION The California legislature exempted “private retirement accounts” from a debtor’s bankruptcy estate, and defined “private retirement accounts” as (1) private retirement plans, (2) profit-sharing plans designed and used for retirement purposes, and (3) self-employed retirement plans and IRAs. The legislature then conditioned the exemption of only (a)(3) self-employed retirement plans and IRAs “to the extent necessary” to provide for the retirement of the debtor and his dependents. Because the Debtors’ section 403(b) annuities are neither self-employed retirement plans nor IRAs, they are not subject to the section 704.115(e) “extent necessary” condition. The Debtors’ plans are “private retirement plans” pursuant to CCP § 704.115(a)(1), and are, therefore, fully exempted from the bankruptcy estate under C.C.P. § 704.115(b). AFFIRMED." }, { "docid": "13969468", "title": "", "text": "QUACKENBUSH, Senior District Judge: The Creditors DeMassa and the Trustee in this bankruptcy proceeding, appeal from a Judgment by the Bankruptcy Appellate Panel (BAP), affirming the bankruptcy court, holding that the Debtors’ private retirement plans are exempt from their bankruptcy estate under California law. The BAP had jurisdiction to hear the appeal pursuant to 28 U.S.C. § 158(a) and (b)(1). We have juris diction pursuant to 28 U.S.C. § 158(d). We affirm the BAP’s judgment. BACKGROUND The issue before this court is a narrow one of first impression, i.e., whether the Debtors’ Internal Revenue Code Section 403(b) retirement plan annuities are fully exempt from their bankruptcy estate under California Civil Procedure (CCP) § 704.115(a)(1) and (b), or whether they are subject to the “extent neeessary for retirement” limitation of § 704.115(e). The Debtors, Ronald Maclntrye and Mary Pikus, husband and wife, are physicians, who are employed by Sharp Rees Stealy Hospital, a nonprofit hospital. As employees of a nonprofit hospital, they are eligible for the tax advantages of section 403(b) retirement plans, provided for in the Internal Revenue Code. The Debtors contributed to their section 403(b) retirement plans through voluntary reductions in their salaries. In 1991, Creditor Phillip DeMassa obtained a judgment against the Debtors in the amount of $505,923.87, later reduced to $350,-261.12, for breaching a contract to purchase a residence from DeMassa. The Debtors filed a bankruptcy petition under Chapter 7 of Title 11 of the United States Code. They claimed an exemption for their section 403(b) retirement plans and their individual retirement accounts (IRAs), pursuant to California Code of Civil Procedure (CCP) § 704.115. The bankruptcy court and the BAP found, in unpublished decisions, that the value of the section 403(b) retirement plan annuities were fully exempt from the bankrupt estate under CCP § 704.115(a)(1) and (b), but that the Debtors’ IRAs were not exempt because they were not reasonably necessary to provide for the support of the debtors upon retirement, pursuant to CCP § 704.115(e). The Creditors and Trustee contend that section 403(b) private retirement plan annuities, like the IRAs, are exempt only to the extent" }, { "docid": "16175595", "title": "", "text": "of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt. A “private retirement plan” is not a generic term referring to any retirement plan. Rather, in order to be a “private retirement plan,” the asset must meet one of the three possible definitions specified in subsection (a) of the statute: (1) Private retirement plans, including, but not limited to, union retirement plans. (2) Profit-sharing plans designed and used for retirement purposes. (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1986. Id. § 704.115(a). The statute does not indicate that whether an asset is “designed and used for retirement purposes” has any bearing on whether it constitutes a “private retirement plan” under section 704.115(b). Rather, if the annuity does not meet any of the statutory definitions for private retirement plan, it is not exempt under the statute. Single-premium annuities do not qualify categorically as private retirement plans under the statute. We reject Simpson’s argument that the California Supreme Court would interpret the provision broadly to include assets acquired by the individual outside of an employment-related retirement plan. While the California Supreme Court has not expressly held that the statute limits “private retirement plans” to those “established or maintained” by an employer, it has applied the exemption only to such plans. See, e.g., Mejia v. Reed, 31 Cal.4th 657, 3 Cal.Rptr.3d 390, 74 P.3d 166, 174 (2003) (construing the exemption in the context of a formal retirement account accumulated through a medical practice). Because the California Supreme Court has not had occasion to consider this issue, we look to the holdings of California’s intermediate appellate courts as indicative of how the highest court would decide this issue. Klein v. United States, 537 F.3d 1027, 1032 (9th Cir.2008). A survey of recent California Court of Appeal cases construing the statute does not reveal a single instance in which that court has interpreted section 704.115(a)(1) to include independent retirement investments. See, e.g., McMullen v." }, { "docid": "21722364", "title": "", "text": "retirement plans, including, but not limited to, union retirement plans. (2) Profit-sharing plans designed and used for retirement purposes. [Emphasis added.] (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended, to the extent the amounts held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code. (b) All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt. (c) * * * (d) After payment, the amounts described in subdivision (b) and all contributions and interest thereon returned to any member of a private retirement plan are exempt---- . See Footnote 6, for the exact language of C.C.P. § 690.18(d). . See Footnote 6, for the exact language of the second sentence of C.C.P. § 690.18(d). . Former 26 U.S.C. § 219(b)(2)(A)(i) provided: § 219. Retirement savings (b) Limitations and restrictions. (2) Covered by certain other plans. — No deduction is allowed under subsection (a) for an individual for the taxable year if for any part of such year— (A) he was an active participant in— (i) a plan described in section 401(a) which includes a trust exempt from tax under section 501(a) ... . See Footnote 6, for the exact language of the second sentence of C.C.P. § 690.18(d). . 29 U.S.C. § 1056(d)(1) states that “[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” . IRC § 401(a)(13) specifies that “[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.\" \"Alienated” as it is used in 26 U.S.C. 401(a)(13) includes an involuntary transfer to an executing creditor. IRC Reg. 1.401(a) — (13)(b)(l) provides: Under section 401(a)(13) a trust will not be qualified unless the plan of which the" }, { "docid": "21722363", "title": "", "text": "whether the same shall be in the actual possession of such pensioner or beneficiary, or deposited by him, are exempt from execution, attachment, or garnishment. Except with regard to moneys withheld from employees’ wages and contributions based on wages in employment under provisions of the Unemployment Insurance Code, the exemption given by this subdivision shall apply to any moneys held in self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended by the federal \"Employee Retirement Income Security Act of 1974” (P.L. 93-406, 29 U.S.C. 1001 et seq.) and by the \"Tax Reform Act of 1976” (P.L. 94-455), provided that such moneys do not exceed the maximum amounts exempt from federal income taxation under these acts. [Emphasis added.] . California Code of Civil Procedure § 690.18(d) was repealed effective July 1, 1983, and recodified as § 704.115, which now provides, in relevant part, as follows: § 704.115. Private retirement plans; exemption; periodic payments (a) As used in this section, \"private retirement plan\" means: (1) Private retirement plans, including, but not limited to, union retirement plans. (2) Profit-sharing plans designed and used for retirement purposes. [Emphasis added.] (3) Self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended, to the extent the amounts held in the plans, annuities, or accounts do not exceed the maximum amounts exempt from federal income taxation under that code. (b) All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt. (c) * * * (d) After payment, the amounts described in subdivision (b) and all contributions and interest thereon returned to any member of a private retirement plan are exempt---- . See Footnote 6, for the exact language of C.C.P. § 690.18(d). . See Footnote 6, for the exact language of the second sentence of C.C.P. § 690.18(d). . Former 26 U.S.C. § 219(b)(2)(A)(i) provided: § 219. Retirement savings" }, { "docid": "21722362", "title": "", "text": "(ii) such payment is on account of age or length of service; and (iii) such plan or contract does not qualify under section 401(a), 403(b), 408, or 409 of the Internal Revenue Code of 1954 (26 U.S.C. § 401(a), 403(b), 408, or 409). . See Footnote 2, 11 U.S.C. § 522(b)(1), for the exact language. . See Footnote 2, 11 U.S.C. § 522(b)(2)(A), for the exact language. . California Code of Civil Procedure § 690.-18(d), which was in effect at the time the debtor filed his petition for relief, provided: (d) Except with regard to a judgment or order for child or spousal support payments, money held, controlled, or in process of distribution by any private retirement plan, including, but not limited to, union retirement plan, or any profit-sharing plan designed and used for retirement purposes, or the payment of benefits as an annuity, pension, retirement allowance, disability payment or death benefit from such retirement or profit-sharing plans, and all contributions and interest thereon returned to any member of any such retirement or profit-sharing plan, whether the same shall be in the actual possession of such pensioner or beneficiary, or deposited by him, are exempt from execution, attachment, or garnishment. Except with regard to moneys withheld from employees’ wages and contributions based on wages in employment under provisions of the Unemployment Insurance Code, the exemption given by this subdivision shall apply to any moneys held in self-employed retirement plans and individual retirement annuities or accounts provided for in the Internal Revenue Code of 1954 as amended by the federal \"Employee Retirement Income Security Act of 1974” (P.L. 93-406, 29 U.S.C. 1001 et seq.) and by the \"Tax Reform Act of 1976” (P.L. 94-455), provided that such moneys do not exceed the maximum amounts exempt from federal income taxation under these acts. [Emphasis added.] . California Code of Civil Procedure § 690.18(d) was repealed effective July 1, 1983, and recodified as § 704.115, which now provides, in relevant part, as follows: § 704.115. Private retirement plans; exemption; periodic payments (a) As used in this section, \"private retirement plan\" means: (1) Private" } ]

[ { "docid": "1279155", "title": "", "text": "line. We affirm its exercise of jurisdiction. III. The Dual Card Doctrine HDA and District 6 argue that the Board improperly subtracted from District 6’s apparent majority those authorization cards that were signed by employees who also signed cards for District 1199. The Employer and the Union insist that an apparent majority is enough in light of Bruckner Nursing Home, Inc., 262 N.L.R.B. 955 (1982). They claim that the Board cannot now hold that an employer commits an unfair labor practice by recognizing and bargaining with a union just because the union did not actually have the unambiguous support of a majority of the employees in the appropriate bargaining unit. A. The Vitality of the Dual Card Doctrine Under the NLRA, an employer may recognize a union as an exclusive collective bargaining agent only if that union enjoys the support of a majority of the employees in the relevant bargaining unit. International Ladies’ Garment Workers’ Union v. NLRB (Bernhard-Altmann Texas Corp.), 366 U.S. 731, 737, 81 S.Ct. 1603, 1607, 6 L.Ed.2d 762 (1961). By recognizing and bargaining with a minority union, an employer provides forbidden aid to that union and interferes with the employees’ right to select their own bargaining representative; the employer thus violates §§ 8(a)(1) and 8(a)(2) of the NLRA. Id. at 737-38, 81 S.Ct. at 1607. The employer’s knowledge or ignorance of the union’s minority status is irrelevant to the question whether the recognition constitutes an unfair labor practice. Id. at 739, 81 S.Ct. at 1608. Although an employer may permissibly use a variety of methods to determine the sentiments of its employees, the Supreme Court and the Board have long expressed a preference for the Board-conducted representation . election. Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 304, 95 S.Ct. 429, 431, 42 L.Ed.2d 465 (1974); NLRB v. Gissel Packing Co., 395 U.S. 575, 596, 602, 89 S.Ct. 1918, 1930, 1934, 23 L.Ed.2d 547 (1969). When an employer recognizes a union without the confirmation of a representation election, it assumes the risk of mistaking the extent of the union’s support, and of committing" } ]

[ { "docid": "14239217", "title": "", "text": "to bargain will be an unfair labor practice if the union does represent a majority), the Board generally will allow an employer to justify a refusal to bargain with an established union by showing that at the time it refused to bargain it had a good faith doubt about whether the union represented a majority of employees. See Bellwood, 627 F.2d at 102. Where an employer demonstrates that it held a good faith doubt as to the union’s majority status, the burden shifts to the Board to produce evidence that on the date the employer refused to bargain, the union did represent a majority of the employees. See Curtin Matheson, 494 U.S. at 804, 110 S.Ct. at 1558 (Sealia, J., dissenting); Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th Cir.1975) (per curiam). Despite the rule generally prohibiting bargaining with minority unions, the Board .has decided, with court approval, that in some circumstances the interests of industrial peace and stability in bargaining relationships are better served by not allowing an employer to question a union’s majority status for a reasonable time during which bargaining is to occur. Thus, an employer usually may not withdraw recognition from a union for one year after the Board has certified the union as the employees’ bargaining representative despite questions about the union’s majority status. Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954); NLRB v. Jarm Enterprises, Inc., 785 F.2d 195, 205 (7th Cir.1986); see also Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37-38, 107 S.Ct. 2225, 2232-33, 96 L.Ed.2d 22 (1987). Similarly, an employer that voluntarily recognizes a union must bargain with the union for a reasonable time without questioning the union’s majority status. Royal Coach Lines, Inc. v. NLRB, 838 F.2d 47, 51-52 (2d Cir.1988); NLRB v. Cayuga Crushed Stone, 474 F.2d 1380, 1381-84 (2d Cir.1973). By requiring bargaining in these situations, the Board is attempting to promote stable bargaining relationships between employers and unions. Requiring the employer to bargain for a reasonable time removes the employer’s incentive to try to evade bargaining by" }, { "docid": "21230376", "title": "", "text": "of memberships by Local 325. We shall then discuss the interrogations of June 25 and June 26. Finally, we shall consider the discharge of Abraham Axelrod. I We uphold the Board’s determination that petitioner committed an unfair labor practice by erroneously assuming that the New York plant had accreted to the previous bargaining unit and by acting as though the New York employees had already chosen Local 325 as their bargaining agent. The company does not challenge here the correctness of the Board’s finding in the representation proceedings that there had been no accretion. And it is clear from our decision in NLRB v. Masters-Lake Success, Inc., 2 Cir., 1961, 287 F.2d 35, that the recognition and coverage clauses contained in the contracts with Local 325 did not justify the company’s announcements that it was applying the contract to the New York plant. In essence, the company argues that as its actions were taken in good faith it committed no unfair labor practice. There is much in this record to indicate that Welch acted in good faith, although this is disputed by the Board, but we conclude that, if the conduct complained of otherwise violated Section 8 (a) (1), good faith is no defense. The cases clearly demonstrate that it is the tendency of an employer’s conduct to interfere with the rights of his employees protected by Section 8(a) (1), rather than his motives, that is controlling. NLRB v. Burnup & Sims, Inc., 1964, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1; NLRB v. Erie Resistor Corp. 1963, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308; International Ladies’ Garment Workers Union, etc. v. NLRB, 1961, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762; Brooks v. NLRB, 1954, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125; NLRB v. Masters-Lake Success, Inc., supra; United Aircraft Corp. v. NLRB, 2 Cir., 1964, 333 F.2d 819. This is especially true where, as here, the Board’s order is purely remedial. International Ladies’ Garment Workers Union, etc. v. NLRB, supra, 366 U.S. at 740, 81 S.Ct. 1603; cf. NLRB v. Burnup &" }, { "docid": "14239215", "title": "", "text": "(7th Cir.1989); Operating Engineers v. NLRB, 755 F.2d 78, 81 (7th Cir.1985). Substantial evidence is evidence that “ ‘a reasonable mind might accept as adequate to support a conclusion.’ ” Operating Engineers, 755 F.2d at 81 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Similarly, we will uphold the Board’s legal conclusions “ ‘unless they are irrational or inconsistent with the [Act].’ ” David R. Webb, 888 F.2d at 503 (quoting NLRB v. Parents and Friends of the Specialized Living Center, 879 F.2d 1442, 1448 (7th Cir.1989)); see also Operating Engineers, 755 F.2d at 81. The Board held that Randall was obligated to bargain with the UAW for a reasonable time regardless of whether a majority of the Morristown employees supported the UAW. As Randall correctly points out, recognizing and bargaining with a minority union usually violates §§ 8(a)(1), (2), and (3) of the Act. See Garment Workers v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961); Bellwood General Hospital v. NLRB, 627 F.2d 98, 102 (7th Cir.1980). Allowing employers to recognize and bargain with minority unions is thought to impair the employees’ rights guaranteed by §§ 7 and 9(a) of the Act to freely choose their own bargaining representatives, or to choose not to be represented at all, through the exercise of majority rule. See Garment Workers, 366 U.S. at 737, 738-39, 81 S.Ct. at 1607-08; 29 U.S.C. §§ 157 (ensuring employees the right to bargain collectively through representatives of their own choice, or to refrain from collective bargaining) and 159(a) (providing that the collective bargaining representative chosen by a majority of employees in a unit shall be the employees’ exclusive representative). Therefore, an employer may usually justify its refusal to bargain with an established union by showing the union no longer represents a majority of employees. Also, to ameliorate the dilemma that faces an employer that is not sure of the union’s continued majority support (because bargaining will be an unfair labor practice if the union turns out not to represent a majority, and refusing" }, { "docid": "23132941", "title": "", "text": "prohibiting withdrawal after negotiations have begun in place of an inquiry as to bad faith and possible harmful effects. When the possible disruption of the bargaining process occurs the Board has been fully able to correct the abuse. Administrative convenience, desirable as it surely is, cannot justify introduction of a rigid rule in these circumstances. See, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). Not only does the Board’s proposed rule put an unnecessary limitation upon the voluntary nature of multi-employer units but it conflicts with the policy so forcefully expressed in International Ladies’ Garment Workers Union, AFL-CIO v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 1762 (1961) that an employer should not bargain with a non-representative union. If an employer has not withdrawn from a multi-employer bargaining unit, and if such a unit is appropriate, it may be proper to allow or even require him to bargain with a union which has a majority in the overall unit but not among his employees. But the policy of not permitting an employer to bargain with a union which does not represent the choice of his employees furnishes strong reason for allowing withdrawal from the multi-employer unit in the absence of any showing of actual harm to the collective bargaining process or lack of good faith. The rule approved by the majority is unnecessary, and this case amply demonstrates its unsoundness. There being no evidence of bad faith by the employer or any harmful effect of its withdrawal from the voluntarily formed unit, I would deny enforcement. . The majority’s insistence that good faith is always irrelevant to a charge of a violation of § 8(a) (1) is misplaced. NLRB v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). As the Supreme Court made clear last term, NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965), the employer’s motivation is irrelevant only where the conduct is “demonstratively destructive of employee rights and is not justified by the service of significant or important" }, { "docid": "23024373", "title": "", "text": "wage scale, its allowance through Beshears of the appointment of a union job steward, and the undisputed testimony of Beshears, whom I credit, to the effect that on some but not all occasions when he wanted to start work at an earlier hour than called for in the union agreement he will check with business agent Rosentritt, all reflects [sic] an intention to adhere to the terms of the Union-AGC agreement. Since these findings are supported by substantial evidence on the record as a whole, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we conclude that the Company had adopted the Union-AGC contract. The Company asserted below that it was free to repudiate the Union-AGC contract because its adoption of that agreement did not create a collective bargaining agreement, but created instead a “prehire contract.” It is true that section 8(f) of the Act creates a unique situation with respect to the formation of contracts between employers in the building and construction industry and unions. Section 9(a) of the Act, which otherwise would govern, provides that the exclusive representative of all the employees in a bargaining unit shall be the “representatives designated or selected for the purposes of collective bargaining by the majority of the employees” in the unit. 29 U.S.C. § 159(a) (1976). Accordingly, the Supreme Court has held that it is an unfair labor practice for an employer under section 8(a)(1) and (2) and for a union under section 8(b)(1)(A) to enter into a collective bargaining agreement recognizing the union as the exclusive bargaining representative when only a minority of the employees have authorized the union to represent them. Garment Workers v. NLRB, 366 U.S. 731, 737, 81 S.Ct. 1603, 1607, 6 L.Ed.2d 762 (1961). Section 8(f) of the Act specifically provides, however, that it shall not be an unfair labor practice for an employer to make an agreement with a labor organization covering employees engaged in the building and construction industry prior to the establishment of majority status for the labor organization. In NLRB v. Local 103, International Association" }, { "docid": "12432031", "title": "", "text": "Union v. NLRB, 366 U.S. 731, 737-38, 81 S.Ct. 1603, 1607-08, 6 L.Ed.2d 762 (1961). And a union without majority support violates section 8(b)(1)(A) of the Act by accepting such recognition. See id. at 738, 81 S.Ct. at 1607-08. When an employer and a minority union enter into a contract that contains a union security provision, the employer violates section 8(a)(3) of the Act, and the union violates section 8(b)(2) of the Act. See Local Lodge No. 1424, Int’l Ass’n of Machinists v. NLRB, 362 U.S. 411, 412-14, 80 S.Ct. 822, 824-25, 4 L.Ed.2d 832 (1960). The Board’s determination that Irwin and the Union violated these provisions of the Act was based on its finding that the Union was not entitled to a presumption of majority status and that, absent that presumption, the Union had failed to demonstrate that it represented a majority of Irwin’s refinery maintenance employees. We reject this determination, because it is at odds with the successorship doctrine and the presumption of continued majority status that arises pursuant thereto. Under the successorship doctrine articulated in Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987), a union’s majority status will be presumed following a change in employers if the new employer is a “successor” to the old employer and a majority of the new employer’s workers were employed by its predecessor. Id. at 41, 107 S.Ct. at 2234-35. A new employer is a successor to its predecessor if there is “substantial continuity” between the two enterprises. Id. at 43, 107 S.Ct. at 2236. The inquiry into “substantial continuity” is primarily factual, and is based on “the totality of the circumstances.” Id. In particular, courts and the Board will examine whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. Id.; see also NLRB v. Burns Int’l" }, { "docid": "9732515", "title": "", "text": "the petition and 31 on the attorney’s list — neither of which is sufficient on its own to indicate a lack of majority support for Local 340. LaVerdiere’s, however, argues that numerous other factors, taken together with the petitions and attorney list, combined to create an adequate objective basis for a good faith doubt of majority support. See Bolton-Emerson, 899 F.2d at 106 (combination of factors may be basis for good faith doubt). The Company points to the following evidence: —substantial turnover had occurred since the Union had been certified and the trend was that newer employees did not support the Teamsters; —the Teamsters were adamantly resisting an election, suggesting that they doubted their strength; —five employees told the Company directly that they did not want to pay their initiation fees; —the Teamsters had informed the Company that twelve employees had not paid initiation fees; —even discounting the presumedly tainted signatures, a substantial number of employees had signed the decertification petitions. In addition, a factor of some significance emphasized by LaVerdiere’s is that the NLRB regional director informed the Company that the Teamsters’ withdrawal of recognition charge, filed in April, was being rejected because the Company had a sufficient basis for a good faith doubt of continued Union support. At that point, the Company argues, it could have committed an unfair labor practice had it not withdrawn recognition. See International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 732-33, 81 S.Ct. 1603, 1604-05, 6 L.Ed.2d 762 (1961) (recognizing union supported by minority of employees is an unfair labor practice). We have sympathy for LaVerdiere’s position. The record makes it clear that substantial employee opposition to the Union existed, and the Company’s burden is to demonstrate only a doubt, not actual loss, of majority Union support. The employees initiated the decertification drive as well as both conversations that were deemed to taint petition signatures. Nevertheless, to rebut the presumption of continued majority support, the Company must come forward with objective evidence not only of substantial opposition to the Union but of at least 50 percent opposition. It failed to do" }, { "docid": "14230122", "title": "", "text": "that the arbitration decision, particularly the calculation of damages, did not draw its essence from the contract. A. The National Labor Relations Act confirms the right of workers to organize and join labor organizations, to bargain collectively through chosen representatives, and “to refrain from any or all such activities.” 29 U.S.C. § 157. A workforce’s decision to organize, and its choice of a representative, are governed by majority rule. See NLRA § 9(a), 29 U.S.C. § 159 (“Representatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purpose of collective bargaining.”); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967) (holding that majority rule concept is at the center of federal labor policy). Majority status is established by an election conducted under the supervision of the National Labor Relations Board, NLRA § 9(c), 29 U.S.C. § 159(c), or by other means set forth in the Act. See NLRB v. Canton Sign Co., 457 F.2d 832, 844 (6th Cir.1972). Generally, employers who recognize a labor organization that does not have the majority support of workers, and labor unions that purport to represent workers absent such majority support, commit an unfair labor practice. See NLRA § 8(a), (b), 29 U.S.C. § 158(a), (b); Int’l Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 738, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961) (quoting NLRB v. Penn. Greyhound Lines, 303 U.S. 261, 267, 58 S.Ct. 571, 82 L.Ed. 831 (1938) (“The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of that section, because the union so favored is given ‘a marked advantage over any other in securing the adherence of employees[.]’ ”)). Because of the lengthy procedure required to call, hold, and certify representation elections, the process ordained by Section 9 has been found to be impractical in industries where there is a high labor turnover. Congress specifically" }, { "docid": "7221337", "title": "", "text": "MUMS, not “the joint venture,” that declined to hire the plaintiffs or give them seniority over other workers. Once MUMS came into being, Universal became its investor. Plaintiffs do not contend that MUMS, Panasonic, and Universal have failed to observe the formalities of corporate (or LLC) life, so MUMS cannot be held liable on a contract to which only Universal is a party, any more than Universal may be held liable on a contract to which only MUMS and the Union are parties. See 6 DeLCode § 18-303; Abbott Laboratories v. CVS Pharmacy, Inc., 290 F.3d 854, 858 (7th Cir.2002); Secon Service System, Inc. v. St. Joseph Bank & Trust Co., 855 F.2d 406, 416-17 (7th Cir.1988). Compare NLRB v. International Measurement & Control Co., 978 F.2d 334, 339-41 (7th Cir.1992), with Esmark, Inc. v. NLRB, 887 F.2d 739, 749-52 (7th Cir.1989). See also Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41-43, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987) (successor employer not bound by predecessor’s collective bargaining agreement unless this is an essential remedy for unfair labor practices such as refusing to hire union adherents on equal terms); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 285-87, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972) (same). MUMS hired union adherents who applied and immediately recognized and bargained with the Union; it is therefore bound by the new terms, not its predecessor’s. Contrast U.S. Marine Corp. v. NLRB, 944 F.2d 1305 (7th Cir.1991) (en banc). There is thus no way in which the Union, Panasonic, and MUMS, the only defendants that became parties to the case, could be held liable for any wrongs committed by Universal. (After all, the Union did not agree to employ or pay the plaintiffs; any obligation along those lines rests on Universal itself.) Even if Universal should have paid MUMS to assume the old collective bargaining agreement or hire the returns-department employees, the fact remains that it did not — and, as a non-party, cannot be ordered to do so now. This makes it unnecessary to determine whether the Union may" }, { "docid": "22276896", "title": "", "text": "signed on behalf of all present and future employees. See General Extrusion Co., 121 N.L.R.B. 1165 (1958). Concluding also that the other charges of unlawful assistance had not been established, he recommended that the complaint be dismissed. The Board, acting through a three-member panel, accepted the Examiner’s report in largest part but reached a different ultimate conclusion. It held that the solicitation by Felter constituted unlawful assistance in violation of § 8 (a) (2) since at the time Felter was working “in a lead capacity for the general laborers then being hired” and had received the cooperation of Thomson. It also found unlawful assistance in the very act of negotiating a contract with Local 815 as the exclusive representative of the employees before the union had achieved majority status, even though on the understanding that execution of any agreement depended on the union's having attained that goal. In arriving at this conclusion, which was thought to be a logical or even necessary corollary of International Ladies Garment Workers Union, etc., v. NLRB (Bernhard-Alt-mann), 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961), the panel was obliged to overrule the Board’s longstanding decision permitting such conditional negotiation, Julius Resnick, Inc., 86 N.L.R.B. 38 (1949), and to override the objection that no such issue had been posed by the complaint. Finally, the panel held that since the contract with Local 815 had thus resulted from violations of § 8(a) (2), execution of the agreement unlawfully interfered with employees’ rights protected by § 8(a) (1), that it consequently afforded no justification for refusing to bargain with the Textile Workers, and that Majestic had thus violated § 8(a) (5). The order issued by the Board directed the Company, inter alia, to cease and desist from giving any effect to the agreement with Local 815 “or to any modification, extension, renewal or supplement thereto” and from refusing to bargain with the Textile Workers as the exclusive representative of the employees; to withdraw recognition from Local 815 unless and until the latter was certified by the Board; and to bargain with the Textile Workers. In" }, { "docid": "465314", "title": "", "text": "existing unit through normal turnover. . The Board has long recognized that in some circumstances either a large unit or smaller units included within it may be appropriate for collective bargaining. Note, The Board and Section 9(c) (5), 79 Harv.L.Rev. 811, 822 (1968). See NLRB v. Smith, 209 F.2d 905, 907 (9th Cir. 1954). . The trial examiner listed the following factors supporting the conclusion that the Sheraton-Kauai hotel employees would constitute an appropriate bargaining unit: . There are two reasons why the decertification remedy is inadequate. The first is the Board’s “established policy, in a representation ease [of] not inquiring] * * * into the question of whether at the time the contract was executed a majority of the employees had designated the union as their bargaining representative.” Columbia Kiver Salmon & Tuna Packers Ass’n, 91 N.L.R.B. 1424, 1427 (1950) ; see also Garment Workers v. NLRB, 366 U.S. 731, 737 n. 8, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). The second is the Board’s rule that the “unit appropriate in a decertification election must be coextensive with either the unit previously certified or the existing contract unit.” W. T. Grant Co., 179 N.L.R.B. No. 114 (1969). See International Ass’n of Tool Craftsmen v. Leedom, 107 U.S. App.D.C. 268, 276 F.2d 514, 515, 516 (1960). . Our decision in Intalco Aluminum Corp. v. NLRB, 417 F.2d 36 (9th Cir. 1969), refusing to enforce the reimbursement provisions of a Board order, can be reconciled with our subsequent decision in NLRB v. Jan Power, Inc., 421 F.2d 1058 (9th Cir. 1970), only by restricting the earlier decision to its facts — that is, to a case in which prior to the time the collective bargaining agreement was extended to the new employees, the employer had a good faith belief that a majority of the employees had chosen to be represented by the union. JERTBERG, Circuit Judge, concurring and dissenting: I concur in the majority opinion except that portion of the Board’s order which requires Company and Union to jointly: “reimburse said Company’s employees for any initiation fees, dues, or other moneys" }, { "docid": "18870265", "title": "", "text": "and to afford the union all the benefits that accompany full representational status. Chief among those benefits is a conclusive presumption of continuing majority support for one year after voluntary recognition. Thus, by unlawfully refusing to negotiate with the Union absent an election only eight months after recognition, Exxel violated its promise to respect the desires of a majority of its employees and to allow the Union a reasonable time to negotiate. Because Exxel was not at liberty to request an election at that time, ordering an election after the fact would grant the Company an option to which it was not entitled when it committed the unfair labor practice. Such a result would allow employers to circumvent the one-year presumption simply by calling for an election within that year and then presenting to the Board some evidence of an erosion of majority support. As this outcome would be inconsistent with the purposes of the NLRA, we uphold the Board’s conclusion that Exxel was not entitled to an election. We must still decide, however, whether the Board erred in not explaining why a bargaining order, as opposed to the cease and desist order standing alone, was justified in this case. Although it might appear redundant to require a company simultaneously to cease refusing to bargain and to bargain upon request, the Board has attached different legal and practical consequences to the two orders. See Caterair Int'l v. NLRB (“Caterair”), 22 F.3d 1114, 1121-22 (D.C.Cir.1994). Cease and desist orders are remedial; they require only that the employer “conform his conduct to the norms set forth in the Act.” International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 740, 81 S.Ct. 1603, 1608-09, 6 L.Ed.2d 762 (1961). Bargaining orders, in contrast, have a somewhat punitive aspect because under longstanding Board practice they are accompanied by a decertification bar that prevents employees from challenging the union’s majority status for a reasonable period of time. Sullivan Industries v. NLRB, 957 F.2d 890, 903 (D.C.Cir.1992). While in some circumstances the decertification bar may be necessary to insulate a fragile union from employer interference, it" }, { "docid": "10694998", "title": "", "text": "the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.” 29 U.S.C. § 159(a); see also id. § 158(a)(5) (making it an unfair labor practice to refuse to bargain with a union selected in accor dance with section 9(a)). In fact, an employer that signs a collective bargaining agreement recognizing a minority union as the exclusive representative of its employees will generally be deemed to have committed an unfair labor practice by interfering with employee rights under NLRA section 7 “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, ... to engage in other concerted activities[,] ... and ... [generally] to refrain from any or all such activities.” 29 U.S.C. § 157; Int’l Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 737, 81 S.Ct. 1603, 1607, 6 L.Ed.2d 762 (1961). Even if the employer and union have both acted on a good faith belief of majority status, such agreements are unenforceable because “[t]o countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act — that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives.” Garment Workers, 366 U.S. at 738-39, 81 S.Ct. at 1608. NLRA section 8(f) creates a limited exception to this majority support requirement for the construction industry. Under this exception, a contractor may sign a “pre-hire” agreement with a union regardless of how many employees authorized the union’s representation. 29 U.S.C. § 158(f). Pre-hire agreements respond to the unique nature of the industry: Construction companies need to draw on a pool of skilled workers and to know their labor costs up front in order to generate accurate bids; union organizing campaigns are complicated by the fact that employees frequently work for multiple companies over short, sporadic periods. NLRB v. Local Union No. 103, 434 U.S. 335, 348-49, 98 S.Ct. 651, 659-60, 54 L.Ed.2d 586 (1978). To protect employees, however, section 8(f) provides that employees" }, { "docid": "23132940", "title": "", "text": "of the negotiations. Cf. Universal Insulation Corp., 149 NLRB No. 124 (1964); Tulsa Sheet Metal Works, supra. The withdrawal does not appear to have prejudiced the union in any manner in its bargaining tactics — there were three negotiating sessions in the month following the withdrawal. Compare Walker Electric Co., supra, where the president of the respondent continued to participate in the negotiations after his “withdrawal” and Detroit Window Cleaners Union, 126 NLRB 63 (1960) where the union did not know of the purported withdrawal until after the contract was completed. Because the record is so clear on this matter I do not think that a remand is necessary to determine whether the union suffered any disadvantage from the withdrawal even though the issue was not considered either by the Board, which thought a flat rule should be applied, or by the Hearing Examiner, who was concerned solely with the issue of good faith on the part of the employer. Neither potential instability of the bargaining process nor administrative convenience requires substituting a flat rule prohibiting withdrawal after negotiations have begun in place of an inquiry as to bad faith and possible harmful effects. When the possible disruption of the bargaining process occurs the Board has been fully able to correct the abuse. Administrative convenience, desirable as it surely is, cannot justify introduction of a rigid rule in these circumstances. See, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). Not only does the Board’s proposed rule put an unnecessary limitation upon the voluntary nature of multi-employer units but it conflicts with the policy so forcefully expressed in International Ladies’ Garment Workers Union, AFL-CIO v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 1762 (1961) that an employer should not bargain with a non-representative union. If an employer has not withdrawn from a multi-employer bargaining unit, and if such a unit is appropriate, it may be proper to allow or even require him to bargain with a union which has a majority in the overall unit but not among his employees. But" }, { "docid": "21230377", "title": "", "text": "good faith, although this is disputed by the Board, but we conclude that, if the conduct complained of otherwise violated Section 8 (a) (1), good faith is no defense. The cases clearly demonstrate that it is the tendency of an employer’s conduct to interfere with the rights of his employees protected by Section 8(a) (1), rather than his motives, that is controlling. NLRB v. Burnup & Sims, Inc., 1964, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1; NLRB v. Erie Resistor Corp. 1963, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308; International Ladies’ Garment Workers Union, etc. v. NLRB, 1961, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762; Brooks v. NLRB, 1954, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125; NLRB v. Masters-Lake Success, Inc., supra; United Aircraft Corp. v. NLRB, 2 Cir., 1964, 333 F.2d 819. This is especially true where, as here, the Board’s order is purely remedial. International Ladies’ Garment Workers Union, etc. v. NLRB, supra, 366 U.S. at 740, 81 S.Ct. 1603; cf. NLRB v. Burnup & Sims, Inc., supra. The question before us on this phase of the ease is thus reduced to whether it was a violation of Section 8(a) (1) for the company to apply the contract with Local 325 to the New York employees, announce this application, and permit a repi'esentative of Local 325 to’ solicit memberships on company time-after the demand for recognition by Local 2682 had been rejected. The Board’s1 conclusion that this conduct had a tendency to interfere with the fundamental right of the New York employees to choose their own representative seems to us clearly correct. See also Note, The Employer’s Duty of Neutrality in the Rival Union Situation: Administrative and Judicial Application of the Midwest Piping Doctrine, 111 U.Pa.L.Rev. 930 (1963). The vice president’s announcement that, as part of the contract with Local 325, the New York employees would receive a five cent an hour raise was likewise contrary to Section 8(a) (1). NLRB v. Exchange Parts Co., 1964, 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435. We therefore enforce the Board’s" }, { "docid": "9799974", "title": "", "text": "if U.S. Marine had respected its obligations under the law. Perhaps U.S. Marine was obliged to afford its workers the benefit of the Chrysler contract, on the theory that when a successor is likely to hire most of the predecessor’s workers, it must use the predecessor’s terms until the union consents to the change or the parties reach impasse after lengthy good-faith bargaining. Cf. Litton Financial Printing v. NLRB, — U.S. —, 111 S.Ct. 2215, 2221-23, 115 L.Ed.2d 177 (1991). Although our panel so held, today no member of this court endorses that belief. The language and rationale of NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), like the Court’s other successorship cases, create only a bargaining obligation even if the successor plans to (and does) hire all of its predecessor’s employees. A bona fide sale of the business enables the successor to start with its own terms. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 40, 107 S.Ct. 2225, 2234, 96 L.Ed.2d 22 (1987); Burns, 406 U.S. at 284-91, 92 S.Ct. at 1580-84. Change may be the only alternative to consigning the plant to the scrap heap. Burns, 406 U.S. at 287-88, 92 S.Ct. at 1582-83. Denying the successor the right to establish its own wages and other terms whenever it is likely to hire substantially all of the predecessor’s workers could prevent this process from occurring and lead to liquidation rather than revivification. Paradoxically it also would discourage successors from making generous offers to labor. If the buyer offers an attractive package of wages and other terms and conditions of employment, many of the old employees will want to cross over; the NLRA forbids discrimination against them; once they cross over the employer would be forced to restore the old package in toto— even if it makes the transaction uneconomic. If the buyer offers a package that is unattractive to the old work force, it avoids any risk of being forced to up the ante, but it also may have trouble hiring workers with the skills" }, { "docid": "10695005", "title": "", "text": "cross-petitions for enforcement. We will affirm the Board’s order unless its factual findings are unsupported by substantial evidence in the record as a whole or the Board acted arbitrarily or otherwise erred in applying established law to the facts. Beverly Health & Rehab. Servs., Inc. v. NLRB, 317 F.3d 316, 320 (D.C.Cir.2003). II. The Board adopted its current interpretation of section 8(f) in John Deklewa & Sons, ruling that in light of prevailing practices in the construction industry as well as of the statute’s legislative history, it would presume that all collective bargaining agreements in the industry are 8(f) contracts and therefore require parties asserting the existence of a section 9(a) relationship to prove affirmatively that such a relationship exists. 282 N.L.R.B. at 1386 n. 41. Absent a Board-conducted election, the Board required proof of “a union’s express demand for, and an employer’s voluntary grant of, recognition to the union as bargaining representative based on a contemporaneous showing of union support among a majority of the employees in an appropriate unit.” J&R Tile, Inc., 291 N.L.R.B. 1034, 1037, 1988 WL 214248 (1988). In a string of more recent decisions, including Central Illinois, however, the Board has ruled that written contract language standing alone may establish the existence of a section 9(a) relationship as long as the contract indicates that “the employer’s recognition [of the union’s 9(a) status] was based on the union’s showing, or offer to show, substantiation of its majority support.” 335 N.L.R.B. No. 59, 2001 WL 1039904, at *4. Relying on Central Illinois in this case, the Board concluded that Nova and the union had formed a section 9(a) agreement because the contract’s recognition clause “leaves no reasonable doubt that the parties intended a 9(a) relationship.” Nova Plumbing, Inc., 336 N.L.R.B. No. 61, 2001 WL 1216968, at *4 (Sept. 30, 2001). Nova argues that the Board’s reliance on contract language alone directly contradicts International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). In that case the Supreme Court held that a section 9(a) collective bargaining agreement recognizing the Garment Workers’" }, { "docid": "10695006", "title": "", "text": "N.L.R.B. 1034, 1037, 1988 WL 214248 (1988). In a string of more recent decisions, including Central Illinois, however, the Board has ruled that written contract language standing alone may establish the existence of a section 9(a) relationship as long as the contract indicates that “the employer’s recognition [of the union’s 9(a) status] was based on the union’s showing, or offer to show, substantiation of its majority support.” 335 N.L.R.B. No. 59, 2001 WL 1039904, at *4. Relying on Central Illinois in this case, the Board concluded that Nova and the union had formed a section 9(a) agreement because the contract’s recognition clause “leaves no reasonable doubt that the parties intended a 9(a) relationship.” Nova Plumbing, Inc., 336 N.L.R.B. No. 61, 2001 WL 1216968, at *4 (Sept. 30, 2001). Nova argues that the Board’s reliance on contract language alone directly contradicts International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). In that case the Supreme Court held that a section 9(a) collective bargaining agreement recognizing the Garment Workers’ Union as the employees’ exclusive bargaining representative “must fail in its entirety” because at the time the agreement was signed, only a minority of plant employees had actually authorized the union to represent their interests. Id. at 737, 81 S.Ct. at 1607. The contract language, the parties’ intent to form a binding section 9(a) agreement, and their good faith belief of majority status could not, the Court held, overcome the fact that the union actually lacked majority support. Emphasizing that “[t]here could be no clearer abridgment” of employees’ section 7 rights to choose their own representatives or to refrain from collective activity, id., the Court explained: We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices here involved. The act made unlawful by § 8(a)(2) is employer support of a minority union. Here that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees’ rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith." }, { "docid": "1283833", "title": "", "text": "banc. 832 F.2d 1164 (9th Cir.1987). En banc review was limited to: (1) whether Deklewa should be applied retroactively to this case, and (2) whether the rule of Royal Dev. Co., Ltd. v. NLRB, 703 F.2d 363, 369 (9th Cir.1983), that a panel may not overrule prior panels’ interpretations of the NLRA even when intervening NLRB cases decide differently, should be overruled. Background — Judicial History of Section 8(f). The NLRA generally requires that a union possess majority support before it may act as the bargaining representative for a group of employees. Sections 8(a)(1), (2) and 8(b)(1)(A), 29 U.S.C. § 158(a), (b), collectively require that a union possess majority support before a collective bargaining agreement can be negotiated. See ILGWU v. NLRB, 366 U.S. 731, 737, 81 S.Ct. 1603, 1607, 6 L.Ed.2d 762 (1961) [hereinafter Garment Workers ]. Historically, however, the construction industry had established its own unique collective bargaining practices. One such practice was the use of pre-hire agreements between construction unions and employers that allowed the industry’s employers to obtain a guaranteed work force before a particular job was begun. In 1948, the NLRB first asserted jurisdiction over the construction industry. See, e.g., Carpenters Local 74, 80 N.L.R.B. 533 (1948); Ozark Dam Constructors, 77 N.L.R.B. 1136 (1948); cf. In Re Johns Manville Corp., 61 N.L.R.B. 1 (1945). The Board refused to make any exceptions to its general rule that minority contracts were illegal and unenforceable. In a number of cases, the Board rejected the “general custom and practice in the construction industry” and held that pre-hire collective bargaining agreements were illegal and unenforceable. See, e.g., Daniel Hamm Drayage Co., 84 N.L.R.B. 458, 460 (1950) (“custom and practice” argument better directed to Congress than to the Board); Chicago Freight Car, 83 N.L.R.B. 1163 (1949). In response, Congress, recognizing the longstanding use of pre-hire agreements in the construction industry, added subsection (f) to section 8 of the NLRA. S.Rep. No. 187, 86th Cong., 1st Sess. 27 (1959), U.S.Code Cong. & Admin.News 1959, p. 2318, reprinted in I Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 397," }, { "docid": "9732516", "title": "", "text": "regional director informed the Company that the Teamsters’ withdrawal of recognition charge, filed in April, was being rejected because the Company had a sufficient basis for a good faith doubt of continued Union support. At that point, the Company argues, it could have committed an unfair labor practice had it not withdrawn recognition. See International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 732-33, 81 S.Ct. 1603, 1604-05, 6 L.Ed.2d 762 (1961) (recognizing union supported by minority of employees is an unfair labor practice). We have sympathy for LaVerdiere’s position. The record makes it clear that substantial employee opposition to the Union existed, and the Company’s burden is to demonstrate only a doubt, not actual loss, of majority Union support. The employees initiated the decertification drive as well as both conversations that were deemed to taint petition signatures. Nevertheless, to rebut the presumption of continued majority support, the Company must come forward with objective evidence not only of substantial opposition to the Union but of at least 50 percent opposition. It failed to do so. In fact, even had we not discounted the seven signatures found tainted by the Board, we in all likelihood still would have been required to uphold the finding of an improper withdrawal of recognition. The Regional Director’s conclusion that LaVer-diere’s in April had sufficient support for a good faith doubt of majority status does not necessarily guide the appropriate outcome for that issue at the end of May. In the interim, the Company received from the Union’s business agent a counter-petition signed by 50 employees at a May 2 meeting. The petition affirmed the employees’ desire for continued representation by Local 340 and demanded good-faith bargaining with the Union. Whatever the circumstances surrounding the signing of this petition, it at least should have caused LaV-erdiere’s to move cautiously before withdrawing recognition. There is, however, no evidence of any effort undertaken by the Company to unravel the conflicting messages it had received from its employees in order to determine the extent of true opposition to the Union. It may be that LaVerdiere’s did not wish" } ]

[ { "docid": "22813796", "title": "", "text": "Final Results of Countervailing Duty Administrative Reviews, 68 Fed.Reg. 53,962 (September 15, 2003) (hereinafter the “Final Results ”). NHC then filed suit in the Court of International Trade, alleging jurisdiction under 28 U.S.C. § 1581(c). The United States (on behalf of Commerce) and U.S. Magnesium moved to dismiss for lack of jurisdiction, which motion failed, the Court of International Trade concluding it had jurisdiction. Norsk Hydro Canada v. United States, 350 F.Supp.2d 1172, 1176-83 (Ct. Int’l Trade 2004) (“NHC I”). Although the Court of International Trade concluded NHC may once have had a remedy at Customs, it determined that exhaustion of such a remedy was unnecessary before seeking redress from Commerce. Id. On the merits, the Court of International Trade concluded that Commerce not only had authority to make the setoffs, but was required to do so to satisfy 19 U.S.C. § 1671(a). Id.; Norsk Hydro Canada v. United States, 374 F.Supp.2d 1275, 1276 (Ct. Int’l Trade 2005) (“NHC II”). On remand, Commerce made the setoffs under protest, and the Court of International Trade entered final judgment in favor of NHC on the administrative record. Norsk Hydro Canada v. United States, 391 F.Supp.2d 1326 (Ct. Int’l Trade 2005) (“NHC III”). This appeal followed. III. Jurisdiction The threshold question is whether the Court of International Trade correctly concluded it had jurisdiction to hear NHC’s claim. Our review of this ruling is de novo, as a trial court’s determination of subject matter jurisdiction is a legal conclusion. Consol. Bearings v. U.S., 348 F.3d 997 (Fed.Cir.2003). NHC’s claim in the Court of International Trade was brought under 28 U.S.C. § 1581(c), which confers jurisdiction on that court to hear “any civil action commenced under section 516A of the Tariff Act of 1930.” Section 516A, in turn, provides for review in the Court of International Trade of certain “reviewable determinations” in countervailing duty proceedings for the purpose of “contesting any factual findings or legal conclusions upon which the [CVD] determination is based.” 19 U.S.C. § 1516a(a)(2)(A)-(B). Among the list of reviewable determinations is “a final determination ... under section 1675 of this title.” Id." } ]

[ { "docid": "9249464", "title": "", "text": "The U.S. Court of International Trade has exclusive jurisdiction over any civil action commenced to contest Customs' denial of a protest, in whole or in part, under 19 U.S.C. § 1515. 28 U.S.C. § 1581(a). A party may protest a decision made by Customs, including decisions concerning the entry, liquidation, or reliquidation of merchandise. 19 U.S.C. § 1514(a). Customs excluded one entry of One World's Redesigned GDO. One World submitted a timely protest to the exclusion, which Customs denied. See HQ H300129. The court has subject matter jurisdiction over the excluded entry pursuant to 28 U.S.C. § 1581(a) because this action contests Customs' denial of a protest relating to One World's entry. B. Subject Matter Jurisdiction Over Future Entries An importer may seek review of a ruling prior to the importation of goods under 28 U.S.C. § 1581(h), which provides in relevant part that: The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, ... relating to ... restricted merchandise, ... or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h). This provision sets out four requirements to establish jurisdiction: (1) judicial review must be sought prior to importation; (2) judicial review must be sought of a ruling, a refusal to issue a ruling, or a refusal to change such a ruling; (3) the ruling must relate to certain subject matter; and (4) the importer must demonstrate that irreparable harm will result unless judicial review prior to importation is obtained. See Best Key Textiles Co., Ltd. v. United States, 777 F.3d 1356, 1360 (Fed. Cir. 2015) ; Am. Air Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1551-52 (Fed. Cir. 1983). Jurisdiction under 28 U.S.C. § 1581(h) is \"an extraordinary instrument, and a significant exception to the procedural requirements traditionally placed on those challenging a decision by Customs.\"" }, { "docid": "18643847", "title": "", "text": "that the compliance date for the front panel marking requirement in T.D. 94-5 would be suspended until January 1, 1995. 59 Fed. Reg. 14,548 (Dep’t Treas. 1994). Customs also suspended the compliance date for meeting the type size and style requirements for front panel marking, and solicited comments both on a new effective date and the specifications for type size and style. 59 Fed. Reg. 14,579 (Dep’t Treas. 1994). Defendants moved to dismiss this action on March 24,1994. II. Discussion A. Motion to Dismiss for Lack of Subject Matter Jurisdiction: The threshold issue presented is whether this court possesses jurisdiction to hear plaintiffs’ challenge to T.D. 94-5. Defendants contend that plaintiffs improperly seek a review of the 516 petition by Norcal, for which judicial review is only available to the “domestic interested party” petitioner, not to importers. See 19 U.S.C. § 1516(c), (e) (1988). Defendants also maintain that plaintiffs are unable to satisfy the test for jurisdiction under 28 U.S.C. § 1581(h) (1988). Plaintiffs respond that T.D. 94-5 contains new marking requirements constituting rulemaking sub ject to review under the APA. As such, plaintiffs assert jurisdiction under § 1581(h). Under certain circumstances, a plaintiff is not required to complete the traditional protest procedures as defined in 19 U.S.C. §§ 1514 and 1515 (1988) before bringing a civil action. One alternative available to an importer seeking pre-importation review is found in § 1581(h), which provides in part that The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, * * * relating to * * * marking * * *, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h). The court has interpreted this section to set out four requirements to establish jurisdiction: 1/ review must be sought prior to importation; 2/ review sought must be for a ruling; 3/ the ruling" }, { "docid": "22125055", "title": "", "text": "matter of this complaint. Declaratory relief only is available. 28 U.S.C. § 2643(c)(4). Thus, importers have wholly failed to meet the requirements of § 1581(h). Ill Finally, the importers claim that the Administrative Procedure Act, 5 U.S.C. § 701, et seq., (APA) gives the Court of International Trade “the right to fashion the appropriate remedy, without hindrance of the usual procedure, when there are Constitutional violations of the type and nature suffered by American Air.” However, clear precedent exists that the APA is not a jurisdictional statute and does not confer jurisdiction on a court not already possessing it. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Thus, the APA does not give an independent basis for finding jurisdiction in the Court of International Trade. Rather, 28 U.S.C. § 1581 is the jurisdictional statute which governs this case. As the importers have failed to establish jurisdiction under 28 U.S.C. § 1581 for the reasons recited above, the decision of the Court of International Trade is affirmed. AFFIRMED. . 28 U.S.C. § 1581 provides in pertinent part: § 1581. Civil actions against the United States and agencies and officers thereof * * * * * * (h) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises" }, { "docid": "13712222", "title": "", "text": "the commerce of the United States. When informal attempts to reach an agreement failed, plaintiff filed, on July 16, 1981, a protest objecting to the refusal by Customs to accept the entry under item 694.41. Customs responded to plaintiff’s protest with a letter which stated that the protest was premature since the rejection of entry papers was not a protestable decision. Plaintiff chose to construe the explanation offered by Customs as a denial of its protest, and, on January 15, 1982 commenced this civil action. The question presented by defendant’s motion to dismiss is whether this court has jurisdiction to review, after imported merchandise has been released into the commerce of the United States, but before liquidation or the payment of estimated duties, a decision by Customs which classifies imported merchandise for the purpose of determining estimated duties. For the reasons which follow, the court holds that it does not have jurisdiction of this action. It is not questioned that when a jurisdictional issue is raised, “the burden rests on plaintiff to prove that jurisdiction exists.” United States v. Biehl & Co., 3 CIT 158, 160, 539 F. Supp. 1218 (1982). In this case, plaintiff asserts that the court has jurisdiction of this action under 28 U.S.C. § 1581, subsections (a), (h) and (i). Section 1581 provides in pertinent part: (a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. ******* (h) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation." }, { "docid": "23172039", "title": "", "text": "A As the initial pleading, the summons must establish the court’s jurisdiction. Federal courts established under Article III of the Constitution, such as the Court of International Trade, are courts of limited jurisdiction, Delaware v. Van Arsdall, 475 U.S. 673, 692, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), and are presumed to be “without jurisdiction” unless “the contrary appears affirmatively from the record.” King Iron Bridge & Mfg. Co. v. Otoe County, 120 U.S. 225, 226, 7 S.Ct. 552, 30 L.Ed. 623 (1887); see also Thomas v. Bd. of Trs., 195 U.S. 207, 210, 25 S.Ct. 24, 49 L.Ed. 160 (1904); Minnesota v. N. Secs. Co., 194 U.S. 48, 62-63, 24 S.Ct. 598, 48 L.Ed. 870 (1904); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1206, at 110 (3d ed.2004). Accordingly, it is settled that a party invoking federal court jurisdiction must, in the initial pleading, allege sufficient facts to establish the court’s jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); KVOS, Inc. v. Assoc. Press, 299 U.S. 269, 277-78, 57 S.Ct. 197, 81 L.Ed. 183 (1936); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1206, at 117-18. It is also settled that a plaintiff must es tablish jurisdiction independently for each cause of action asserted. See, e.g., Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.2004); Rifkin v. Bear Stearns & Co., Inc., 248 F.3d 628, 634 (7th Cir.2001). The plain language of the pertinent statutes establishes that the Court of International Trade has jurisdiction only to review “the denial of a protest,” and that each protest denial is the basis of a separate claim. 28 U.S.C. §§ 1581(a), 2631(a), 2635(a), 2636(a) (referring to “[a] civil action contesting the denial, in whole or in part, of a protest”) (emphasis added), 2637(a), 2638 (referring to “any civil action ... in which the denial, in whole or in part, of a protest is a precondition to the commencement of a civil action” (emphasis added)). Thus, the filing" }, { "docid": "18636387", "title": "", "text": "carries the burden of demonstrating that the Court of International Trade has jurisdiction to hear and determine this case. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Smith Corona Group, SCM Corp. v. United States, 8 CIT 100, 102, 593 F. Supp. 415, 417-18 (1984). Jurisdiction Pursuant to 28 U.S.C. § 1581(h): Plaintiff asserts that jurisdiction exists pursuant to 28 U.S.C. § 1581(h) because this action concerns a Customs ruling regarding the classification, duty and entry requirements of merchandise which “has been denied importation into the United States. ” Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction (“Plaintiff’s Brief”) at 7. At oral argument on October 21, 1994, plaintiff also asserted that HRL 957068 is, in substance, a ruling relating to prospective transactions. Plaintiff maintains that judicial review prior to importation of its prospective imports is necessary to avert the irreparable harm which plaintiff will suffer as a result of Customs’ ruling. Plaintiff’s Brief at 7. The irreparable harm envisioned by plaintiffis the loss of $2 million in sales, the loss of future business, and the threatened impairment of its ability to provide jobs for its employees. Id. at 7,9-11. Plaintiff also contends that the criterion of irreparable harm is satisfied by the fact that, because it is barred from seeking monetary damages for Customs’ misclassification, it will be left without a judicial remedy. Id. at 10. Defendants argue that § 1581(h) jurisdiction does not extend to plaintiffs merchandise which has already been imported and denied entry. Memorandum, in Support of Defendants’ Motion to Dismiss, Motion for Attorneys Fees, and Opposition to Plaintiff’s Motion for Preliminary Injunction (“Defendants’ Brief”) at 8. With respect to plaintiffs prospective imports, defendants contend that § 1581(h) does not confer jurisdiction upon the Court as the subject ruling is not a ruling within the meaning of this provision. Defendants submit that the subject ruling is an internal advice ruling and, as such, is exempt from judicial review under § 1581(h). Defendants’ Brief at 8-9. In support of this contention, defendants paraphrase and quote a portion of this provision’s legislative history." }, { "docid": "18643848", "title": "", "text": "ject to review under the APA. As such, plaintiffs assert jurisdiction under § 1581(h). Under certain circumstances, a plaintiff is not required to complete the traditional protest procedures as defined in 19 U.S.C. §§ 1514 and 1515 (1988) before bringing a civil action. One alternative available to an importer seeking pre-importation review is found in § 1581(h), which provides in part that The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, * * * relating to * * * marking * * *, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h). The court has interpreted this section to set out four requirements to establish jurisdiction: 1/ review must be sought prior to importation; 2/ review sought must be for a ruling; 3/ the ruling must relate to certain subject matter; and 4/ the importer must show that irreparable harm will result unless judicial review prior to importation is obtained. National Juice Prods. Ass’n v. United States, 10 CIT 48, 51, 628 F. Supp. 978, 982 (1986). Plaintiffs have the burden of establishing that jurisdiction exists. Id. The parties do not dispute that judicial review sought is for goods prior to importation and that T.D. 94-5 pertains to a specific or certain subject matter, but disagree as to the remaining two factors to establish § 1581(h) jurisdiction. 1. The ruling requirement: Defendants initially argue that T.D. 94-5 is not a ruling as contemplated under § 1581(h), but rather a general interpretation regarding proper placement of country of origin markings, arising from the decision on the 516 petition. A “ruling” has been defined in the legislative history of § 1581(h) as a \"determination by the Secretary of the Treasury as to the manner in which it will treat [a] completed transaction.” H.R. Rep. No. 1235, 96th Cong., 2d Sess. 46, reprinted" }, { "docid": "13462578", "title": "", "text": "discretion, or otherwise not in accordance with law.” Id. The scope of review is limited to the administrative record. See 28 U.S.C. § 2640(e); 5 U.S.C. § 706. IV Discussion A. Plaintiff Has Met Its Burden of Demonstrating by Clear and Convincing Evidence That the Court Has Jurisdiction Pursuant to 28 U.S.C. § 1581(h). Plaintiff asserts that the Court has jurisdiction over this matter pursuant to 28 U.S.C. §1581(h) with respect to declaratory relief and §1581 (i) with respect to injunctive relief. Defendant concedes jurisdiction with respect to § 1581(h) but challenges jurisdiction under §1581(i). Defendant-Intervenor contests jurisdiction under both §1581(h) and (i), and argues that the Court may only exercise jurisdiction pursuant to §1581(a). Because of the differing positions of each party in this case, the Court finds it necessary to address the issue of jurisdiction in detail. The Court exercises jurisdiction under §1581(h), and will grant relief accordingly, thus the need for a preliminary injunction is moot. Section 1581(h), Title 28, United States Code, provides: The [court] shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, * * * or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h) (1994). The Court of Appeals for the Federal Circuit outlined four requirements for invoking the jurisdiction of this Court under 28 U.S.C. § 1581(h): (1) judicial review must be sought prior to importation of goods; (2) review must be sought of a ruling, a refusal to issue a ruling or a refusal to change such ruling; (3) the ruling must relate to certain subject matter; and (4) irreparable harm must be shown unless judicial review is obtained prior to importation. American Air Parcel Forwarding Co. v. United States, 718" }, { "docid": "9249462", "title": "", "text": "One World's petition for inter partes review of the '319 Patent. The PTAB concluded that multiple claims, including Claims 1 and 9 of the '319 Patent, are unpatentable as obvious in light of prior art. See Pl. One World Technologies, Inc.'s Notice Suppl. Authority, Oct. 16, 2018, ECF No. 48; see also Ex. 1, Oct. 16, 2018, ECF No. 48-1 (\"PTAB Op.\"). ANALYSIS I. Subject Matter Jurisdiction Defendants filed a partial motion to dismiss, arguing that the court does not have subject matter jurisdiction over Plaintiff's action under 28 U.S.C. § 1581(h). See Defs.' Mem. 1, 7-11. Plaintiff alleges that the court possesses subject matter jurisdiction over Customs' \"exclusion of goods from entry into the U.S. and its denial of One World's Protest of that exclusion that was filed pursuant to 19 U.S.C. § 1514 (HQ H300129).\" Am. Compl. ¶ 2. To the extent that One World requests relief with respect to future imports of its merchandise, One World contends that the court may exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1581(h). See Pl. One World Technologies, Inc.'s Opp'n Defs.' Omnibus Mot. & Resp. 5, Oct. 15, 2018, ECF No. 45. The U.S. Court of International Trade, like all federal courts, is one of limited jurisdiction and is presumed to be without jurisdiction unless the contrary appears affirmatively from the record. DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (citing King Iron Bridge & Mfg. Co. v. Otoe Cty., 120 U.S. 225, 226, 7 S.Ct. 552, 30 L.Ed. 623 (1887) ). The party invoking jurisdiction must allege sufficient facts to establish the court's jurisdiction, id. (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ), and therefore bears the burden of establishing it. Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). The Court is empowered to hear civil actions brought against the United States pursuant to the specific grants of jurisdiction enumerated under 28 U.S.C. § 1581(a) - (i). A. Subject Matter Jurisdiction Over the Excluded Entry" }, { "docid": "13462579", "title": "", "text": "civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, * * * or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h) (1994). The Court of Appeals for the Federal Circuit outlined four requirements for invoking the jurisdiction of this Court under 28 U.S.C. § 1581(h): (1) judicial review must be sought prior to importation of goods; (2) review must be sought of a ruling, a refusal to issue a ruling or a refusal to change such ruling; (3) the ruling must relate to certain subject matter; and (4) irreparable harm must be shown unless judicial review is obtained prior to importation. American Air Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1551-52 (Fed. Cir. 1983), cert. denied, 466 U.S. 937 (1984). Defendant does not claim that the Court lacks jurisdiction under § 1581(h). Between the other parties to this action, there is no dispute as to the first three requirements of jurisdiction under this section. Defendant-Intervenor challenges only Heartland’s claim of irreparable injury. “When a jurisdictional issue is raised, the burden rests on the plaintiff to prove that jurisdiction exists.” Manufacture de Machines du Haut-Rhin v. von Rabb, 6 CIT 60, 62, 569 F. Supp. 877, 880 (1983) (citing United States v. Biehl & Co., 3 CIT 158, 160, 539 F. Supp. 1218, 1220 (1982)). Plaintiff must demonstrate irreparable harm by a clear and convincing evidence standard. Irreparable harm is that which “cannot receive reasonable redress in a court of law.” Manufacture de Machines du Haut Rhin, 6 CIT at 64, 569 F. Supp. at 881-82 (quoting Black’s Law Dictionary 706-707 (5th ed. 1979)). “In making this determination, what is critical is not the magnitude of the injury, but rather its immediacy and the" }, { "docid": "9249463", "title": "", "text": "Pl. One World Technologies, Inc.'s Opp'n Defs.' Omnibus Mot. & Resp. 5, Oct. 15, 2018, ECF No. 45. The U.S. Court of International Trade, like all federal courts, is one of limited jurisdiction and is presumed to be without jurisdiction unless the contrary appears affirmatively from the record. DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (citing King Iron Bridge & Mfg. Co. v. Otoe Cty., 120 U.S. 225, 226, 7 S.Ct. 552, 30 L.Ed. 623 (1887) ). The party invoking jurisdiction must allege sufficient facts to establish the court's jurisdiction, id. (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ), and therefore bears the burden of establishing it. Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). The Court is empowered to hear civil actions brought against the United States pursuant to the specific grants of jurisdiction enumerated under 28 U.S.C. § 1581(a) - (i). A. Subject Matter Jurisdiction Over the Excluded Entry The U.S. Court of International Trade has exclusive jurisdiction over any civil action commenced to contest Customs' denial of a protest, in whole or in part, under 19 U.S.C. § 1515. 28 U.S.C. § 1581(a). A party may protest a decision made by Customs, including decisions concerning the entry, liquidation, or reliquidation of merchandise. 19 U.S.C. § 1514(a). Customs excluded one entry of One World's Redesigned GDO. One World submitted a timely protest to the exclusion, which Customs denied. See HQ H300129. The court has subject matter jurisdiction over the excluded entry pursuant to 28 U.S.C. § 1581(a) because this action contests Customs' denial of a protest relating to One World's entry. B. Subject Matter Jurisdiction Over Future Entries An importer may seek review of a ruling prior to the importation of goods under 28 U.S.C. § 1581(h), which provides in relevant part that: The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of" }, { "docid": "18631253", "title": "", "text": "challenged, the plaintiff must prove that jurisdiction in this court is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Dennison Mfg. Co. v. United States, 12 CIT 1, 678 F. Supp. 894, 896 (1988); Lowa Ltd. v. United States, 5 CIT 81, 83, 561 F. Supp. 441, 443 (1983), aff'd, 2 Fed. Cir. (T) 27, 724 F.2d 121 (1984). The importer alleges jurisdiction under 28 U.S.C. § 1581(a) (1982), which allows judicial review of Customs’ denial of a protest filed pursuant to 19 U.S.C. § 1514(a)(4) (1982) relating to \"the exclusion of merchandise from entry or delivery * * * under any provision of the customs laws * * The importer also alleges jurisdiction under 28 U.S.C. § 1581(i)(3) and (4) (1982), which grant the court exclusive jurisdiction over civil actions commenced against the United States, its agencies, and its officers that arise out of any federal law providing for administration and enforcement of quotas. I. Jurisdiction Based on a \"Deemed Denial” of a Protest The importer asserts that because its protest stated that it must be reviewed and acted upon within 30 days under 19 C.F.R. § 174.21(b) (1988), a time-limit only applicable when invoked, the protest must be deemed to have been denied. The government argues that passage of 30 days without action does not constitute a deemed denial for jurisdictional purposes. a. Jurisdiction under 28 U.S.C. § 1581(a). 19 C.F.R. § 174.21(b) (1988) states that when a protest is filed relating to the exclusion of merchandise, Customs shall review and act on the protest within 30 days. See Arbor Foods, Inc., v. United States, 8 CIT 355, 359, 600 F. Supp. 217, 220 (1984). Violation of the time period does not, however, assure jurisdiction in the Court of International Trade. See American Air Parcel Forwarding Co. v. United States, 2 Fed. Cir. (T) 1, 7, 718 F.2d 1546, 1551 (1983), cert. denied, 466 U.S. 937 (1984) (finding no relationship between Customs’ violation of a regulation and jurisdiction in the Court of International Trade). An importer may obtain judicial review on an accelerated basis" }, { "docid": "3904729", "title": "", "text": "United States, 442 F.3d 1313, 1319 (Fed.Cir.2006) (“the filing of a protest is a jurisdictional requirement.”); see also United States v. Boe, 64 C.C.P.A. 11, 15-16, 543 F.2d 151, 154-55 (CCPA 1976). In addition, the importer must have paid all liquidated duties, charges, or exactions at the time the action is commenced. See 28 U.S.C. § 2637(a). This payment requirement is a mandatory condition precedent for invoking the jurisdiction of the Court of International Trade. If payment is not made, then this Court must dismiss an importer’s cause of action for lack of jurisdiction. See Syva Co. v. United States, 12 CIT 199, 201, 681 F.Supp. 885, 887 (1988) (citing Boe, 64 C.C.P.A. at 18, 543 F.2d at 155-56). Similarly, for a domestic manufacturer to commence an action in this Court under 28 U.S.C. § 1581(b) challenging the classification, valuation, or rate of duty of imported merchandise, the domestic manufacturer must file a petition with Customs, and have that petition denied. See 19 U.S.C. § 1516, 28 U.S.C. § 2637(b) (“A civil action contesting the denial of a petition under section 516 of the Tariff Act of 1930 may be commenced in the Court of International Trade only by a person who has first exhausted the procedures set forth in such section.”). Then and only then, upon satisfying the statutory condition precedent, is the domestic manufacturer authorized to commence an action in the Court of International Trade. See National Com Growers Ass’n v. Baker, 840 F.2d 1547, 1557 (Fed.Cir.1988) (failure to file a section 516 petition renders jurisdiction under 28 U.S.C. § 1581(b) impossible). In an action brought pursuant to 28 U.S.C. § 1581(h), an importer, prior to importation of subject merchandise, may challenge a ruling or a refusal to issue or change a ruling by Customs only if the importer can show that it would be irreparably harmed if required to exhaust its administrative remedies. See 28 U.S.C. § 2637(c). To establish subject matter jurisdiction in a 1581(h) action, the importer must demonstrate that: (1) the review sought must be prior to importation; (2) the review sought must pertain" }, { "docid": "1604852", "title": "", "text": "6110.30.30 (men’s shirts made of polyester). Revocation of Ruling Letter & Revocation of Treatment Relating to the Tariff Classification of a “Johnny Collar” Pullover Garment, 47 Cust. B. & Dec. No. 41, at 15 (Oct. 2, 2013) (App.43-48). Appellant challenged the Yarn Ruling Revocation, but not the revocation of the Johnny Collar Ruling, before the CIT, but the court dismissed the action for lack of subject matter jurisdiction. Best Key Textiles Co. v. United States (Best Key I), No. 13-00367, slip op. 13-148, at 1, 2013 WL 6511985 (Ct. Int’l Trade Dec. 13, 2013) (Appellee’s App. 81-88). The CIT subsequently granted Best Key’s Motion for Reconsideration, and reversed its prior jurisdictional holding, finding jurisdiction existed under 28 U.S.C. § 1581(i)(4) (2012). Best Key II, at 2. On the merits, however, the CIT denied Best Key’s Motion for Judgment on the Agency Record, thereby sustaining the Revocation. Id. at 27. Best Key appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). Discussion The Government claims the CIT lacked jurisdiction over Best Key’s claim, and therefore this action should be dismissed. The CIT’s limited jurisdiction is articulated in 28 U.S.C. § 1581(a) through (i). While subsection (a) vests the CIT with “exclusive jurisdiction of any civil action commenced to contest the denial of a protest [by Customs],” subsections (b) through (h) delineate other specific grants of jurisdiction. Under § 1581(h), the CIT has exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters; but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h). In addition, an action under § 1581(h) may only be commenced “by the person who would have standing to bring a civil action under [§ ] 1581(a) ..." }, { "docid": "18636388", "title": "", "text": "loss of future business, and the threatened impairment of its ability to provide jobs for its employees. Id. at 7,9-11. Plaintiff also contends that the criterion of irreparable harm is satisfied by the fact that, because it is barred from seeking monetary damages for Customs’ misclassification, it will be left without a judicial remedy. Id. at 10. Defendants argue that § 1581(h) jurisdiction does not extend to plaintiffs merchandise which has already been imported and denied entry. Memorandum, in Support of Defendants’ Motion to Dismiss, Motion for Attorneys Fees, and Opposition to Plaintiff’s Motion for Preliminary Injunction (“Defendants’ Brief”) at 8. With respect to plaintiffs prospective imports, defendants contend that § 1581(h) does not confer jurisdiction upon the Court as the subject ruling is not a ruling within the meaning of this provision. Defendants submit that the subject ruling is an internal advice ruling and, as such, is exempt from judicial review under § 1581(h). Defendants’ Brief at 8-9. In support of this contention, defendants paraphrase and quote a portion of this provision’s legislative history. Id. In addition, defendants argue that plaintiff cannot demonstrate the requisite irreparable harm for § 1581(h) judicial review. Specifically, defendants contend that the harm resulting from lost profits, lost opportunities for sales contracts and lost goodwill does not constitute irreparable harm. Defendants’ Brief at 9-10. Title 28, United States Code, Section 1581(h) bestows upon this Court exclusivejurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements * * * or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. (Emphasis added.) As an initial matter, the Court expresses that judicial review pursuant to 28 U.S.C. § 1581(h) is available only for prospective transactions. See, e.g., American Air Parcel Forwarding Co. v. United States, 5" }, { "docid": "23172038", "title": "", "text": "requirement that the importer invoke the Customs Court’s jurisdiction by filing a summons. Id. at 10-12, 18. In 1980 when Congress expanded the jurisdiction of the Customs Court to encompass new kinds of suits, Pub.L. No. 96-417 § 201, 94 Stat. 1727, 1728-29, 96th Cong.2d Sess. (Oct. 10, 1980), Congress determined that, in general, “a civil action in the Court of International Trade shall be commenced by filing concurrently with the clerk of the court a summons and complaint .... ” Id., 94 Stat. at 1732 (enacting the current version of 28 U.S.C. § 2632(a)). Congress explicitly chose, however, to retain the provision from the prior act requiring that only a summons be initially filed to commence an action contesting the denial of a protest. Id. (enacting what is now 28 U.S.C. § 2632(b)); H.R. Rep. 96-1235, at 15 (1980) (noting that section 2632(b) “restates existing law with respect to” actions contesting the denial of a protest). We conclude that the initial pleading in actions to contest the denial of a protest is the summons. A As the initial pleading, the summons must establish the court’s jurisdiction. Federal courts established under Article III of the Constitution, such as the Court of International Trade, are courts of limited jurisdiction, Delaware v. Van Arsdall, 475 U.S. 673, 692, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), and are presumed to be “without jurisdiction” unless “the contrary appears affirmatively from the record.” King Iron Bridge & Mfg. Co. v. Otoe County, 120 U.S. 225, 226, 7 S.Ct. 552, 30 L.Ed. 623 (1887); see also Thomas v. Bd. of Trs., 195 U.S. 207, 210, 25 S.Ct. 24, 49 L.Ed. 160 (1904); Minnesota v. N. Secs. Co., 194 U.S. 48, 62-63, 24 S.Ct. 598, 48 L.Ed. 870 (1904); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1206, at 110 (3d ed.2004). Accordingly, it is settled that a party invoking federal court jurisdiction must, in the initial pleading, allege sufficient facts to establish the court’s jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80" }, { "docid": "9249465", "title": "", "text": "the Treasury, ... relating to ... restricted merchandise, ... or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h). This provision sets out four requirements to establish jurisdiction: (1) judicial review must be sought prior to importation; (2) judicial review must be sought of a ruling, a refusal to issue a ruling, or a refusal to change such a ruling; (3) the ruling must relate to certain subject matter; and (4) the importer must demonstrate that irreparable harm will result unless judicial review prior to importation is obtained. See Best Key Textiles Co., Ltd. v. United States, 777 F.3d 1356, 1360 (Fed. Cir. 2015) ; Am. Air Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1551-52 (Fed. Cir. 1983). Jurisdiction under 28 U.S.C. § 1581(h) is \"an extraordinary instrument, and a significant exception to the procedural requirements traditionally placed on those challenging a decision by Customs.\" Heartland By-Prods., Inc. v. United States, 26 CIT 268, 274, 223 F.Supp.2d 1317, 1324 (2002). A plaintiff may invoke subsection (h) \"only when the traditional route will inflict irreparable harm on a plaintiff.\" Id. at 274, 223 F.Supp.2d at 1325. The legislative history \"makes clear that Congress did not intend for subsection (h) to replace jurisdiction under [ 28 U.S.C. § 1581(a) ], and, therefore, limited the scope of relief under (h) to declaratory judgment, explicitly precluding injunctive relief.\" Id.; see also Otter Prods., LLC v. United States, 38 CIT ----, ----, 37 F.Supp.3d 1306, 1319 n.8 (2014). One World imported multiple entries totaling thousands of units of the Redesigned GDO prior to initiating this action and clearly will not be harmed if it does not obtain judicial review prior to importation. The court has jurisdiction over the excluded entry pursuant to 28 U.S.C. § 1581(a), and Plaintiff may not utilize 28 U.S.C. § 1581(h) as a way of circumventing the procedures required by 28 U.S.C. § 1581(a). The court concludes that One World has" }, { "docid": "1604853", "title": "", "text": "therefore this action should be dismissed. The CIT’s limited jurisdiction is articulated in 28 U.S.C. § 1581(a) through (i). While subsection (a) vests the CIT with “exclusive jurisdiction of any civil action commenced to contest the denial of a protest [by Customs],” subsections (b) through (h) delineate other specific grants of jurisdiction. Under § 1581(h), the CIT has exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters; but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. 28 U.S.C. § 1581(h). In addition, an action under § 1581(h) may only be commenced “by the person who would have standing to bring a civil action under [§ ] 1581(a) ... if he imported the goods involved and filed a protest which was denied.” Id. § 2631(h). Accordingly, this court has articulated four requirements to invoke jurisdiction under § 1581(h): (1) judicial review must be sought prior to importation of goods; (2) review must be sought of a ruling, a refusal to issue a ruling or a refusal to change such ruling; (3) the ruling must relate to certain subject matter; and (4) irreparable harm must be shown unless judicial review is obtained prior to importation. Am. Air Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1551-52 (Fed.Cir.1983). The statute also contains a “residual jurisdiction” provision under § 1581(i), which provides: (i)In addition to the jurisdiction conferred upon the [CIT] by subsections (a)-(h) of this section ..., the [CIT] shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation" }, { "docid": "13712223", "title": "", "text": "exists.” United States v. Biehl & Co., 3 CIT 158, 160, 539 F. Supp. 1218 (1982). In this case, plaintiff asserts that the court has jurisdiction of this action under 28 U.S.C. § 1581, subsections (a), (h) and (i). Section 1581 provides in pertinent part: (a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930. ******* (h) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. ******* (i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) Revenue from imports or tonnage; (2) Tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) Embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) Administration and enforcement with respect to the matters referred to in paragraphs (1)—(3) of this subsection and subsections (a)-(h) of this section. ******* Jurisdiction Under 28 U.S.C. § 1581(a) 28 U.S.C. § 1581(a) grants the Court of International Trade exclusive jurisdiction of any civil action contesting the denial of a protest under section 515 of the" }, { "docid": "20012053", "title": "", "text": "Co., 3 CIT 158, 160, 539 F. Supp. 1218, 1220 (1982). Plaintiff argues that the court has jurisdiction pursuant to 28 U.S.C. § 1581 (h) and (i), and 28 U.S.C. § 1585 (Supp. IV 1980). Defendants contend that none of the above sections confer jurisdiction upon the court and judicial review should be entertained pursuant to section 1581(a), after plaintiff has exhausted its administrative remedies. It is with this general argument of the defendants that the court agrees. A discussion of each assertion of jurisdiction follows. 28 U.S.C. § 1581(h) Plaintiff contends that it should not be required to exhaust its administrative remedies in the traditional sense by completing an import transaction, filing a protest and contesting the denial of the protest. Plaintiff asserts, although not alleged in the complaint, that the court has jurisdiction pursuant to section 1581(h) and the traditional method of obtaining judicial review should be circumvented because it will suffer irreparable harm if further delay is encountered. Subsection (h) of section 1581 provides: * * * The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, or a refusal to issue or change such a ruling, relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters, but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation. It is clear that section 1581(h) grants this court jurisdiction to review pre-importation rulings under limited circumstances where an importer may suffer irreparable harm if he is unable to obtain judicial review of a ruling until a contemplated transaction is completed, the duties are paid and a suit is commenced. In the case at hand, the determination made by Customs was not a pre-importation ruling, since the goods in question were detained when there was an attempt to import them. Furthermore, plaintiff has not demonstrated that it would" } ]

[ { "docid": "22198798", "title": "", "text": "In 1995, the Government of the Federal Democratic Republic of Ethiopia assumed power after free elections. The State Department Country Report noted that “sweeping changes” had occurred in Ethiopia and that neither ethnic Amharas nor relatives of former army officers were subject to persecution. See Bureau of Democracy, Human Rights and Labor, U.S. Dept, of State, Ethiopia — Profile of Asylum Claims & Country Conditions 3 (1995). Therefore, substantial evidence supports the BIA’s conclusion that Belayneh does not have a well-founded fear of persecution — either because of her own views or those imputed to her — upon her return to Ethiopia. Because she did not meet the threshold for asylum, she would not meet the higher burden for withholding of deportation. 8 C.F.R. § 208.16(b)(1); see also Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir.1993). Ill Belayneh also claims that the BIA erred in denying her “humanitarian asylum” for atrocious past persecution. The BIA may grant asylum for humanitarian reasons where an applicant or his family has suffered undef atrocious forms of persecution, even where there is little likelihood of future persecution. See Acewicz v. INS, 984 F.2d at 1062. When the BIA finds past persecution but no well-founded fear of future persecution, we review its denial of humanitarian asylum for an abuse of discretion. See Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir.1996). Although rape may constitute an atrocious form of persecution, see id. at 962, Belayneh never claims to have been raped, and there is scant evidence even of an attempted rape; she did not mention an attempted rape in her application, and testified to it only in passing. While this does not mean that she could not have been so traumatized, she failed to evince it sufficiently to support a finding of atrocity. On this record, we cannot say that the BIA abused its discretion. Belayneh also argues that the BIA should have accorded more weight to her adult son’s successful asylum claim, particularly because his persecution occurred during the Mengistu regime, yet he won asylum in 1996. Issue preclusion applies to immigration proceedings." } ]

[ { "docid": "22621526", "title": "", "text": "of his political opinion.” Nevertheless, the BIA dismissed the appeal on the ground that a 1997 State Department country report, introduced into evidence by the INS, demonstrates that Gonzalez no longer has a well-founded fear of persecution in 'Guatemala. According to the BIA, this country report rebuts the presumption that Gonzalez will be persecuted upon his return to Guatemala in three ways. First, the report indicates that peace accords were signed in Guatemala, “ending the civil war in that country.” Second, the report states that “only party leaders or high-profile activists generally would be vulnerable to such harassment and usually only in their home communities, making internal relocation a viable alternative in many cases.” Finally, the report never mentions the PR, suggesting “that the political party [Gonzalez] opposed and feared may no longer even exist.” In addition to the country report, the BIA also relied upon the lapse of time between the events giving rise to the past persecution and the hearing (ten years) to hold that Gonzalez no longer has a well-founded fear of persecution in Guatemala. B Our review of the BIA’s determination that Gonzalez does not qualify for asylum is quite narrow. The BIA’s decision need only be supported by substantial evidence. Kumar v. INS, 204 F.3d 931, 933 (9th Cir.2000).. In other words, to overturn the BIA’s determination that he is ineligible for asylum, Gonzalez “must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also 8 U.S.C. § 1252(b)(4)(B). “Within broad limits the law entrusts the agency to make the basic asylum eligibility decision.... ” INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002) (per curiam). The BIA did not exceed those limits in holding that the INS rebutted the presumption that Gonzalez has a well-founded fear of future persecution. The 1997 country report introduced into evidence by the INS, “Guatemala — Profile of Asylum Claims & Country Conditions,” states that" }, { "docid": "23301783", "title": "", "text": "afford a basis for asylum.” Grava v. INS, 205 F.3d 1177, 1181 n. 3 (9th Cir.2000). Any violence that Rodas-Mendoza’s cousin may perpetrate against her, violence that the government does not sponsor and in which it is not complicit, cannot support a reasonable fear of persecution. We affirm the BIA’s determination that Rodas-Mendoza is not eligible for asylum because she did not demonstrate an objectively reasonable fear of future persecution. Rodas-Mendoza also requested withholding of deportation. To be entitled to withholding of deportation, an immigrant must “demonstrate that it is ‘more likely than not’ that [s]he will be persecuted on account of one of the five enumerated factors were [s]he to return.” Duarte de Guinac, 179 F.3d at 1159 (quoting 8 C.F.R. § 208.16(b)(1)). This standard “is a more stringent one than that for asylum eligibility.” Id. If an immigrant fails to qualify for asylum, therefore, she necessarily fails to qualify for withholding of deportation., Kumar v. INS, 204 F.3d 931, 934 (9th Cir.2000); Rivera Moreno v. INS, 213 F.3d 481, 485 (9th Cir.1999). We affirm the BIA’s holding denying RodasMendoza’s request for withholding of deportation. Where the persecution suffered by an immigrant in her home country is particularly severe, asylum may be granted even if she does not have a well-founded fear of future persecution. See Rodriguez-Matamoros v. INS, 86 F.3d 158, 160-61 (9th Cir.1996); see also 8 C.F.R. § 208.13(b)(l)(ii). Rodas-Mendoza argues before this Court for the first time that the severity of her persecution qualifies her for such “humanitarian” asylum. Having failed to raise this argument before the IJ or the BIA, Rodas-Mendoza has waived it and cannot raise it before this Court. See Farhoud v. INS, 122 F.3d 794, 797 (9th Cir.1997). Even if Rodas-Mendoza had properly raised this issue, however, the persecution she suffered was not so pervasive, atrocious, and severe as to qualify her for humanitarian asylum. PETITION DENIED." }, { "docid": "22621527", "title": "", "text": "persecution in Guatemala. B Our review of the BIA’s determination that Gonzalez does not qualify for asylum is quite narrow. The BIA’s decision need only be supported by substantial evidence. Kumar v. INS, 204 F.3d 931, 933 (9th Cir.2000).. In other words, to overturn the BIA’s determination that he is ineligible for asylum, Gonzalez “must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also 8 U.S.C. § 1252(b)(4)(B). “Within broad limits the law entrusts the agency to make the basic asylum eligibility decision.... ” INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002) (per curiam). The BIA did not exceed those limits in holding that the INS rebutted the presumption that Gonzalez has a well-founded fear of future persecution. The 1997 country report introduced into evidence by the INS, “Guatemala — Profile of Asylum Claims & Country Conditions,” states that “only party leaders or high-profile activists generally would be vulnerable to” persecution based on political opinion. Gonzalez was neither a party leader nor a high-profile activist. By his own admission, Gonzalez’s involvement in the Christian Democratic Party was minimal: he participated in the Party for three months and monitored one election. Even if we assume that Gonzalez was in fact a “party leader” or “high profile activist,” the 1997 country report explains that such persons are usually susceptible to persecution “only in their home communities, making internal relocation a viable alternative in many cases.” Because “an individual who can relocate safely within his home country ordinarily cannot qualify for asylum here,” Ventura, 123 S.Ct. at 356 (citing 8 C.F.R. § 208.13(b)(1)(i)), the fact that Gonzalez relocated to Guatemala City for several months without receiving any threats or letters is highly relevant. The BIA could have reasonably concluded that Gonzalez would be safe in Guatemala City, although Gonzalez might face persecution if he returned to his hometown. Substantial evidence therefore supports the BIA’s asylum determination. C" }, { "docid": "23029075", "title": "", "text": "the United States illegally in 1991. On February 3, 1995, the IJ denied Ku-mar’s application for asylum and withholding of deportation, but he granted her voluntary departure. In deciding the matter, the IJ relied primarily on the changed country conditions of Fiji. In addition, he did not And that acts perpetrated against her were so egregious that she warranted asylum regardless of the changed country conditions. He concluded his opinion by noting that because Kumar had not successfully made out a claim for asylum, she necessarily “failed to sustain her burden of proof with regarding withholding of deportation as well.” The Board of Immigration Appeals agreed. The Board did “not find any argument presented on appeal that persuades us that the Immigration Judge erred in his decision in this case.” Specifically, the Board noted that Kumar “has not challenged the Immigration Judge’s finding that the conditions in Fiji have fundamentally changed since the time of the incidents in which she based her application for asylum and withholding.” Accordingly, the Board dismissed Kumar’s appeal. II Although we typically review the decision of the BIA, when the Board adopts the decision of the IJ, we also review the decision of the IJ. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir.1995). We review the lower court’s decision that an alien has not established eligibility for asylum under the “substantial evidence” standard. See Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Therefore, the IJ’s determination, affirmed by the Board, that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence in the record. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). In other words, Kumar must show “that the evidence [s]he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. To qualify for asylum under 8 U.S.C. § 1158, Kumar must demonstrate a well-founded fear of persecution, on account of statutorily protected grounds, that is both subjectively genuine and objectively reasonable. See Sanchez-Trujil lo v. INS, 801" }, { "docid": "22274682", "title": "", "text": "prejudiced those interests protected by the regulation. Id. While we are dubious as to whether the particular regulation at issue creates any protectible right, we need not resolve that issue here. As conceded by the Kumars’ counsel at oral argument, the Kumars did not and cannot show that they were prejudiced by the footnote or that the violation of the regulation affected the outcome of the proceedings. See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir.1989). At worst, the inclusion of the footnote was harmless surplusage. At best, the Kumars benefitted from the BIA’s error. We assume, as the IJ did in her alternative ruling, that the Kumars are credible. We conclude that the Kumars did not suffer prejudice as a result of the BIA’s failure to strictly adhere to its regulations. The Kumars’ remaining contentions regarding streamlining are foreclosed by our decision in Falcon Carriche v. Ashcroft, 360 F.3d 845, 848, 851 (9th Cir.2003), where we held that “streamlining does not violate an alien’s due process rights .... Nor is it a due process violation for the BIA to affirm the IJ’s decision without issuing an opinion.” B. Persecution in Fiji To establish eligibility for asylum, an applicant must demonstrate that he is a “refugee,” i.e., an alien who is unable or unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1064(9th Cir. 2003). To give rise to refugee status, the persecution must be “on account of’ one of the five statutorily-specified grounds. AlHarbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). The IJ found that Mr. Kumar’s experiences in Fiji did not rise to the level of persecution. We agree; substantial evidence supports the IJ’s conclusion that the Kumars failed to establish past persecution on account of any of the five statutorily-specified grounds. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Following the incident" }, { "docid": "22382406", "title": "", "text": "presumption, and therefore did not consider whether changed conditions in Fiji were sufficient to rebut it. In some cases in which the BIA failed to analyze the record regarding country conditions because it did not find the harm necessary to give rise to the presumption, we have remanded to allow it to do so. See Del Camen Molina v. INS, 170 F.3d 1247, 1250 (9th Cir.1999). We have held, however, that such a remand is not appropriate where the record clearly shows that the country conditions material in the record will not serve to rebut the presumption. Navas, 217 F.3d at 661-62; Maini, 212 F.3d at 1177; Vallecillo-Castillo, 121 F.3d at 1240; Prasad v. INS (G. Prasad), 101 F.3d 614, 617 (9th Cir.1996). The evidence in this case compels the conclusion that conditions have not changed sufficiently to rebut the presumption that arose with respect to Chand. While the evidence in the record suggests that, in general, conditions had improved in Fiji between the time of the 1987 coup and the time described in the State Department’s Profile, they obviously did not improve enough to save Chand from several attacks by Fijian soldiers and ethnic Fijians or from his eviction from his land and the seizure of his home. Most important, the Profile quoted above makes clear that racially motivated crime of the type Chand faced remains a problem for some Indians, and that in some cases police are unable or unwilling to stop such crime. We recently denied a petition for review filed by an Indian Fijian on the ground that even if she had suffered persecution, country conditions had changed sufficiently to rebut the presumption to which she may have been entitled. See Kumar v. INS, 204 F.3d 931, 934 (9th Cir.2000). Kumar, however, cannot be read to stand for a general proposition that no Indian Fijian can any longer have a reasonable fear of future persecution because conditions in Fiji had improved. First, we have long held that the determination of whether or not a particular applicant’s fear is rebutted by general country conditions information requires an" }, { "docid": "22274685", "title": "", "text": "to the contrary. Finally, the IJ noted that the Kumars both testified that practicing their religion at home is “comfortable, acceptable, and routine to them.” The single incident in 1991 at Mr. Kumar’s temple is not sufficient to establish that the Kumars suffered religious persecution in Fiji. Even considering the cumulative effect of the Kumars’ experiences, this case is not one in which the evidence presented compels a finding contrary to that of the IJ. Mr. Kumar’s testimony also fails to establish a well-founded fear of future persecution. See Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir.1998) (stating that to establish a well-founded fear of future persecution, the alien must demonstrate both an objectively reasonable and subjectively genuine fear of persecution). Because the Kumars have not established eligibility for asylum, they have not met the higher burden of proving that they are entitled to withholding of removal. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc) (holding that an applicant who has not satisfied the lesser standard of proof required to establish eligibility for asylum necessarily fails to satisfy the more stringent standard required to establish eligibility for withholding of removal). CONCLUSION The Kumars’ petition for review is denied. The stay of removal pending review •will expire upon issuance of the mandate in this case. See Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004). PETITION DENIED. . The regulations now at 8 C.F.R. Part 1003 (2003) formerly were at 8 C.F.R. Part 3 (2002). . Furthermore, there is nothing to be gained by remanding the case to the BIA so that it can excise the footnote and send the case back to us without it. . Compare with Prasad v. INS, 47 F.3d 336, 339-340 (9th Cir. 1995) (concluding that an attack committed by a group of ethnic Fijians and the military, detention by the police, physical abuse while in.police custody, and coercive questioning by the police regarding political affiliations were insufficient to establish past persecution); Singh v. INS, 134 F.3d 962, 968-69 (9th Cir.1998) (holding that an Indo-Fijian's claims of ethnic tension, including the" }, { "docid": "23406302", "title": "", "text": "cannot agree with the majority that this single document establishes that Don-chev was not persecuted because of his association with the Roma in light of the compelling direct evidence that he was targeted because of that association. II. Fear of Future Persecution The Immigration Judge denied Donchev’s asylum claim because he failed to establish a well-founded fear of future persecution. However, because the record compels the conclusion that Donchev suffered persecution in the past, the burden was on the government to rebut the presumption of future persecution. 8 C.F.R. § 1208.13(b)(1). In order to do this, the government must establish by a preponderance of the evidence that there has been a fundamental change in circumstances in the country of origin such that the asylum seeker no longer has a well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1)(i). The government’s evidence must allow the BIA to make “an individualized analysis of how changed conditions will affect [Donchev’s] situation.” Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir.2004) (citation omitted). Generalized country information from the State Department is not by itself sufficient to rebut the presumption. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002). Because the Immigration Judge failed to properly shift the burden to the government and failed to consider the issue of changed country conditions, I would remand. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (holding that Courts of Appeals cannot decide the issue of changed country conditions in the first instance). I note that no Country Report on Human Rights Practices for Bulgaria is contained in the Administrative Record. III. Withholding of Removal Once a petitioner establishes past persecution, he is entitled to a presumption of withholding of removal. Mihalev, 388 F.3d at 731. Because I believe that the record compels the conclusion that Don-chev was persecuted in the past, I would remand the case so that the BIA consider his withholding of removal claim or, if appropriate, remand to the IJ to do so. . Because Donchev filed his application for asylum in 2003, the provisions of" }, { "docid": "22382407", "title": "", "text": "State Department’s Profile, they obviously did not improve enough to save Chand from several attacks by Fijian soldiers and ethnic Fijians or from his eviction from his land and the seizure of his home. Most important, the Profile quoted above makes clear that racially motivated crime of the type Chand faced remains a problem for some Indians, and that in some cases police are unable or unwilling to stop such crime. We recently denied a petition for review filed by an Indian Fijian on the ground that even if she had suffered persecution, country conditions had changed sufficiently to rebut the presumption to which she may have been entitled. See Kumar v. INS, 204 F.3d 931, 934 (9th Cir.2000). Kumar, however, cannot be read to stand for a general proposition that no Indian Fijian can any longer have a reasonable fear of future persecution because conditions in Fiji had improved. First, we have long held that the determination of whether or not a particular applicant’s fear is rebutted by general country conditions information requires an individualized analysis that focuses on the specific harm suffered and the relationship to it of the particular information contained in the relevant country reports. As we stated in Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir.1998), “opr cases hold that ‘individualized analysis’ of how changed conditions will affect the specific petitioner’s situation is required. Information about general changes in the country is not sufficient.” Id. (citing Osorio v. INS, 99 F.3d 928, 933 (9th Cir.1996); Berroteran-Melendez v. INS, 955 F.2d 1251, 1257 (9th Cir.1992) (stating that “blindly” applying country conditions information to deny claims would be error)). The reason for the requirement of individualized analysis is clearly demonstrated by the differences between Kumar and the case before us. Whereas in that case the petitioner suffered no harm beyond that which “took place in the aftermath of the 1987 coups,” Kumar, 204 F.3d at 934, here Chand suffered harm at the hands of the Fijian military and other Fijians that the government would not control in 1988, 1990, 1991, 1992, and immediately before he left" }, { "docid": "21929508", "title": "", "text": "Although Suntharalinkam did not specifically contend that the IJ’s analysis under the CAT was error, he did appeal the IJ’s decision to deny relief under the CAT, and therefore he preserved the issue for appeal. We decline to reach the merits of this claim, however, because we remand the question to the BIA. IV. Because the adverse credibility finding is not supported by substantial evidence, we remand to the BIA to consider, taking his testimony as true, whether Suntharalinkam has met the necessary conditions for eligibility for asylum, withholding of removal, and relief under the Convention Against Torture, as well as any other issues that may preclude his admission into this country. See INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam); see also Chen, 362 F.3d at 621-23. PETITION GRANTED; REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. . This can be found at ht tp://news.nationalgeographic.com/news/2002/ 11/1126_021120_TVGeoRoperSurvey.html. . This can be found at ht tp://www.cdc.gov/mmwr/preview/mmwrhtml/rr5201al.htm. RAWLINSON, Circuit Judge, dissenting: I respectfully dissent. I simply cannot agree that we are compelled to find Suntharalinkam credible. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (explaining the special deference accorded to the BIA’s credibility determination). As the majority opinion recognizes, so long as one of the Immigration Judge’s identified reasons for disbelieving Suntharalinkam is supported by substantial evidence and goes to the heart of the persecution claim, we must accept the Immigration Judge’s adverse credibility determination. Majority Opinion at 1040. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). Additionally, we have endorsed the concept of cumulative incredulity. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000). The majority opinion takes issue with the IJ’s finding that Suntharalinkam’s testimony regarding employment that was not included in his asylum application supported an adverse credibility finding. Majority Opinion at 1041. However, we have specifically recognized testimony that is inconsistent with the details of the asylum application as supporting an adverse credibility determination. See id. The majority also faults the IJ for relying on the omission of Suntharalinkam’s August, 2000, detention from" }, { "docid": "5802619", "title": "", "text": "if he returned to Fiji. While stating that she was “extremely sympathetic to the situation of Mr. Taga-ga” as it was “apparent he has very democratic beliefs and does not agree with the tact [sic] the current Fijian government has taken against the Indians and other minorities in Fiji,” the IJ concluded that Tagaga had failed to establish a well-founded fear of persecution and rejected his application. The BIA affirmed. Ta-gaga petitioned this court for review of the BIA’s decision. II. To establish eligibility for asylum, an applicant must prove that he 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.” 8 U.S.C. § 1101(a)(42)(A). A well-founded fear of future persecution may be established by proving either past persecution or “good reason” to fear “future persecution.” Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1140 (9th Cir.1988)). The Attorney General has discretion to grant asylum to eligible applicants. INS v. Cardoza-Fonseca, 480 U.S. 421, 428 & n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In reviewing the BIA’s determination of eligibility for asylum, we apply a substantial evidence test. The BIA’s decision must be upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)); Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). Its decision must be reversed if a reasonable factfinder would have to conclude that the requisite persecution or fear has been shown. Elias-Zacarias, 502 U.S. at 481, 483-84, 112 S.Ct. 812; Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Moreover, we must reverse the BIA’s denial of withholding of deportation if such a factfinder would also have to conclude that it is more likely than not that the applicant would be subject to persecution if sent back to the country he fled. See Cardoza-Fonseca, 480 U.S. at 423," }, { "docid": "22274683", "title": "", "text": "process violation for the BIA to affirm the IJ’s decision without issuing an opinion.” B. Persecution in Fiji To establish eligibility for asylum, an applicant must demonstrate that he is a “refugee,” i.e., an alien who is unable or unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1064(9th Cir. 2003). To give rise to refugee status, the persecution must be “on account of’ one of the five statutorily-specified grounds. AlHarbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). The IJ found that Mr. Kumar’s experiences in Fiji did not rise to the level of persecution. We agree; substantial evidence supports the IJ’s conclusion that the Kumars failed to establish past persecution on account of any of the five statutorily-specified grounds. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Following the incident at the Kumars’ home in 1987, Mr. Kumar left Fiji and lived in New Zealand for approximately two years. He then voluntarily returned to Fiji because he was lonely and depressed in New Zealand. The IJ stated that Mr. Kumar’s voluntary return to Fiji was indicative of Kumar’s own belief that it would be safe and appropriate for him to live in Fiji. In addition, following his return to Fiji in 1989, Mr. Kumar no longer had any association with the Labor Party. To the extent that the Fijian military targeted Mr. Kumar in 1987 because of his activities with the Labor Party, as Mr. Kumar testified, his two-year absence from the country and distance from the party upon his return weaken his claim of persecution. The IJ found that the 1994 incident was a traffic accident and was not related to any of the five statutory grounds for asylum. Moreover, the IJ concluded that the accident was brief and did not result in any serious problems with the military. The Kumars presented no evidence" }, { "docid": "22794182", "title": "", "text": "regulatory presumption of a well-founded fear of future persecution; and that because the facts adduced did not independently and objectively support this claim, it must fail.” Jahed v. INS, 356 F.3d 991, 996 (9th Cir.2004). Nevertheless, recent reports reflect that “seven years after the signing of peace accords, Guatemala has made little progress toward securing the protection of human rights and rule of law that are essential features of a functioning democ racy.” Testimony of Daniel Wilkinson, Human Rights Watch, before the Congressional Human Rights Caucus, at http:// www.house.govAantos/caucus/Testimony-Wilkinsonl01603.htm (last visited May 10, 2004). Accordingly, “the significance of political change in Guatemala [is] a highly complex and sensitive matter.” INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Therefore, we must give “the BIA the opportunity to address the matter in the first instance in light of its own expertise.” Id.; see also Gonzalez-Hernandez, 336 F.3d at 1000 (“[T]he agency, not a court of appeals, must construe the country report and determine if country conditions have changed such that the applicant no longer has a well-founded fear of persecution”). Because neither the IJ nor the BIA determined whether country conditions have changed such that a presumption of future persecution is rebutted, we may not do so in the first instance. Ventura, 537 U.S. at 14, 123 S.Ct. 353. Thus, although we hold that Garcia has suffered past persecution, thereby triggering a rebuttable presumption of a well-founded fear of future persecution, we must remand Garcia’s case to the BIA, so that the agency may determine whether current conditions in Guatemala sufficiently overcome that presumption. See id. at 16, 123 S.Ct. 353 (holding that if the BIA has not made findings on an issue of fact, “the proper course ... is to remand to the agency for additional investigation or explanation”) (citations omitted). Remand is also necessary to determine if, pursuant to the humanitarian exceptions of 8 C.F.R. § 1208.13(b)(l)(iii)(A)-(B), Garcia’s past persecution alone renders her eligible for asylum. Although Garcia argues to this Court that she is entitled to a discretionary grant of asylum for humanitarian" }, { "docid": "22386935", "title": "", "text": "is eligible “for a humanitarian grant of asylum on account of the severe forms of past persecution that he and his family suffered and the reasonable possibility that he will suffer other serious harm if removed to Sierra Leone” pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(A), (B). Pet’r Br. at 39. “[I]t is now within the discretion of the IJ and BIA to grant asylum to victims of past persecution whose fear of future persecution has been rebutted.” Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir.2004) (order) (citing 8 C.F.R. § 1208.13(b)(l)(iii)(A), (B)). Section 1208.13(b)(l)(iii)(A) provides that an applicant who does not have a well-founded fear of future persecution “may be granted asylum, in the exercise of the decision-maker’s discretion, if ... [t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.” In determining whether an applicant qualifies for this relief, the BIA must “consider the level of atrocity of past persecution.” Lopez-Galarza v. INS, 99 F.3d 954, 963 (9th Cir.1996). The BIA denied discretionary relief pursuant to section 1208.13(b)(l)(iii)(A), stating: “[w]e do not find the harm that respondent claims to have suffered, that of being detained and beaten by the RUF, to be sufficiently compelling to support a grant of asylum in the absence of a well-founded fear of future persecution.” The BIA erred in failing to determine whether, assuming the truth of Sowe’s testimony that he witnessed his parents’ murder, the severing of his brother’s hand, and his sister’s kidnaping, he provided compelling reasons for his being unwilling or unable to return to Sierra Leone. Because we lack the authority to act as fact-finders, or to determine credibility in the first instance, we must remand to the BIA the question whether Sowe is eligible for asylum pursuant to section 1208.13(b)(l)(iii)(A). INS v. Orlando Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). Sowe also alleges that the BIA erred in denying him relief pursuant to section 1208.13(b)(l)(iii)(B). As to that claim, the BIA concluded that there was no" }, { "docid": "22382411", "title": "", "text": "for withholding, Chand must “demonstrate that it is more likely than not that [he] would be subject to persecution in the country to which he would be returned.” I.N.S. v. Cardoza- Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (citation omitted). The reasons that compel our holding that Chand is eligible for asylum would also compel any reasonable fact-finder to conclude that Chand is entitled to withholding of deportation. We therefore hold that Chand has demonstrated his entitlement to withholding of deportation as well as his eligibility for asylum. We GRANT Chand’s petition for review and REMAND his case to the BIA for further action consistent with this opinion. . Chand's wife, Premila Mudaliar Chand, filed an asylum claim derivative of her husband's. The IJ and BIA treated their cases together, and we do the same. Because we hold that Ashok Chand is eligible for asylum, we hold that Premila Chand is also eligible for asylum. .The ugly events surrounding the coups in Fiji, including the rapes and beatings of Indian citizens and the fire bombings of their houses, have been described in detail in this court's prior opinion in Singh v. INS, 94 F.3d 1353, 1356-57 (9th Cir.1996) (hereinafter RJ. Singh). Sadly, at the time of this writing, another military takeover is taking place in Fiji. It appears that this one, like the prior coups, has succeeded in crushing a democratically elected government composed in part of ethnic Indians. See Fiji’s Ethnic Indians Live in Fear, AP Online, June 1, 2000. For purposes of this decision, however, we consider only the events that are reflected in the record before the BIA. . In the affidavit submitted as part of the asylum application, Chand stated that this incident occurred in 1991. However, during his hearing Chand stated that it occurred in 1992. In both the affidavit and the hearing, Chand stated that his father died on March 8, 1991. At the hearing, neither the IJ, the INS attorney, nor Chand's own attorney questioned him about the inconsistency between his statement that his father died in 1991" }, { "docid": "22274684", "title": "", "text": "at the Kumars’ home in 1987, Mr. Kumar left Fiji and lived in New Zealand for approximately two years. He then voluntarily returned to Fiji because he was lonely and depressed in New Zealand. The IJ stated that Mr. Kumar’s voluntary return to Fiji was indicative of Kumar’s own belief that it would be safe and appropriate for him to live in Fiji. In addition, following his return to Fiji in 1989, Mr. Kumar no longer had any association with the Labor Party. To the extent that the Fijian military targeted Mr. Kumar in 1987 because of his activities with the Labor Party, as Mr. Kumar testified, his two-year absence from the country and distance from the party upon his return weaken his claim of persecution. The IJ found that the 1994 incident was a traffic accident and was not related to any of the five statutory grounds for asylum. Moreover, the IJ concluded that the accident was brief and did not result in any serious problems with the military. The Kumars presented no evidence to the contrary. Finally, the IJ noted that the Kumars both testified that practicing their religion at home is “comfortable, acceptable, and routine to them.” The single incident in 1991 at Mr. Kumar’s temple is not sufficient to establish that the Kumars suffered religious persecution in Fiji. Even considering the cumulative effect of the Kumars’ experiences, this case is not one in which the evidence presented compels a finding contrary to that of the IJ. Mr. Kumar’s testimony also fails to establish a well-founded fear of future persecution. See Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir.1998) (stating that to establish a well-founded fear of future persecution, the alien must demonstrate both an objectively reasonable and subjectively genuine fear of persecution). Because the Kumars have not established eligibility for asylum, they have not met the higher burden of proving that they are entitled to withholding of removal. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc) (holding that an applicant who has not satisfied the lesser standard of proof required to" }, { "docid": "22859410", "title": "", "text": "in January 1993. He then applied for asylum and withholding of deportation. At his hearing before the Immigration Judge (“IJ”), Gafoor testified about the things that had happened to him. He also testified that ethnic Fijians had since taken over his house in Fiji and that he feared returning home. The IJ denied Gafoor’s application, finding that the abuse he suffered “had nothing to do with any political motives, racial motives, membership in any particular social group or religious belief or any of the other items mentioned.” Instead, the IJ concluded, the attacks against Gafoor were motivated solely by revenge for the arrest of the army officer. The BIA affirmed this decision in September 1998, finding “no nexus between the incidents ... and any ground protected by” the Immigration and Nationality Act. The BIA also ruled that even if Gafoor had been persecuted on account of a protected ground, country conditions had changed sufficiently to rebut the presumption of a well-founded fear. Gafoor then filed a timely petition for review of the BIA’s decision. II. STANDARD OF REVIEW “We must uphold the BIA’s determination that an alien is not eligible for asylum if it is supported by reasonable and substantial evidence based on the record as a whole.” Maini v. INS, 212 F.3d 1167, 2000 WL 640352 (9th Cir. May 19, 2000). “Put differently, we will reverse its decision only if the petitioner can demonstrate that the evidence is ‘such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). III. ANALYSIS A. Past Persecution To establish eligibility for asylum, an applicant must show a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1158(b)(1); 8 U.S.C. § 1101(a)(42)(A). If an applicant demonstrates past persecution on account of one of these protected grounds, there is a presumption of a well-founded fear of future persecution. See 8 C.F.R. •§ 208.13(b)(1)(i); Garrovillas v. INS, 156 F.3d" }, { "docid": "23087031", "title": "", "text": "The IJ’s determination accordingly lacks support, and we remand for further proceedings consistent with this opinion. IV Maharaj also contends that, in light of the May 2000 coup in Fiji, he is eligible for withholding of removal because it is more likely than not that he will be persecuted upon his return to Fiji. The State Department Country Report on Human Rights Practice for 2000 catalogs violence against Indo-Fijians and specifically states that the areas near Maharaj’s home province of Nausori “experienced a particularly high level of violence, including looting, arson, and physical intimidation directed against Indo-Fijians.” However, we cannot make a determination on changed country conditions in the first instance. INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (requiring remand where the BIA had not decided the “changed circumstances” question). In its October 8, 2003 denial of Maharaj’s motion to reopen, the Board stated that information about the 2000 coup was before it when it issued its prior decision. Yet, the BIA’s February 27, 2003 decision affirming the IJ’s denial of asylum and withholding of removal states only “that the record rebuts the assumption of future harm,” and it gives no indication that the BIA considered evidence of changed conditions following the May 2000 coup. In any event, the BIA did not “make an individualized determination as to the effect of country conditions,” Lopez v. Ashcroft, 366 F.3d 799, 806 (9th Cir.2004), and remand is appropriate to allow the BIA to consider the issue in a way that allows for principled appellate review of its decision. In addition, we note that “remand could lead to the presentation of further evidence of current circumstances in [Fiji].” Ventura, 537 U.S. at 18, 123 S.Ct. 353. V We conclude that the IJ’s determination that Maharaj was firmly resettled lacks support. We grant the petition, and remand so that the IJ may consider whether evidence that Maharaj had a right to work, receive benefits, and apply for some kind of refugee or asylum status in Canada constitutes “an offer of permanent residence, citizenship, or some" }, { "docid": "22587064", "title": "", "text": "he is unable or unwilling to return to his country of nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The applicant’s credible account of past persecution raises a presumption that his fear of future persecution is well-founded. See 8 C.F.R. § 208.13(b)(l)(i). The INS can then rebut this presumption by demonstrating, “by a preponderance of the evidence, that conditions ‘have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.’ ” Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir.1998) (quoting 8 C.F.R. § 208.13(b)(l)(i)). In Lai’s case, the BIA found that the INS successfully rebutted the presumption that his fear of future persecution was well-founded by demonstrating that conditions in Fiji have improved significantly since the tumultuous 1987 coup. Unless Lai could benefit from some other applicable rule, the BIA had no choice but to affirm denial of asylum. A But the BIA has developed a humanitarian exception to the general rule. See Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989). Where he cannot demonstrate a well-founded fear of future persecution (because, for example, country conditions have changed), asylum shall be granted if “it is determined that the applicant has demonstrated compelling reasons for being unwilling to return to his or her country of nationality ... arising out of the severity of the past persecution.” 8 C.F.R. § 208.13(b)(l)(ii). This regulation grows out of Chen, which remains the touchstone for determining the applicability of this exception. See Kumar v. INS, 204 F.3d 931, 935 (9th Cir.2000); Vongsakdy v. INS, 171 F.3d 1203, 1207 (9th Cir.1999). In Chen, the BIA explained that where a petitioner has suffered from “atrocious” persecution, changed country conditions “may not always produce a complete change ..., in view of his past experiences, in the mind of the refugee.” 20 I. & N. Dec. at 20. In Lai’s case, the BIA appears to have considered Chen’s humanitarian exception" }, { "docid": "23029080", "title": "", "text": "suffering that Kumar endured took place in the aftermath of the 1987 coups. Since that time, conditions have improved significantly in Fiji, and any lingering discrimination that may exist against Indo-Fijians certainly does not rise to the level of persecution. The Immigration Judge’s denial of Kumar’s ap-' plication upon this ground, therefore, is supported by substantial evidence. See Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. IV The only remaining avenue of relief for Kumar is the argument that her suffering was so severe that it constituted atrocious persecution and, for humanitari an reasons, she should therefore not be forced to return to Fiji. See Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir.1993) (citing Matter of Chen, 20 I & N Dec. 16, 19, 1989 WL 331860 (B.I.A.1989)). The abuse visited upon Kumar does not amount to this level of horror. In Chen, the eight-year-old petitioner’s home was destroyed, and his father was dragged through streets and forced to write confessions of his crimes over fifty times. See id. at 19. His father was also pushed into a bonfire of burning bibles. See id. The petitioner was also beaten and sent for reeducation on numerous occasions, as well as being stoned at one point. See id. The Board held that such severe persecution overrode the fact of changed country conditions in China since that time. See id. at 21. Kumar’s suffering does not compare to that described in Chen, and she therefore does not warrant a special dispensation of humanitarian relief. The record does not compel a contrary finding. V Because Kumar has not met the standard for asylum, she necessarily cannot meet the more stringent standard for withholding of deportation. See De Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir. 1997). VI For the foregoing reasons, we hold that substantial evidence exists to support the Board of Immigration Appeals’ determination that the change in Fijian country conditions rebuts Kumar’s well-founded fear of persecution. PETITION DENIED." } ]

[ { "docid": "22608689", "title": "", "text": "v. Kras, 409 U. S. 434, 445-446 (1973). We also do not believe that, in the context of provisions designed to exempt certain claims from discharge, a debtor has an interest in discharge sufficient to require a heightened standard of proof. We are unpersuaded by the argument that the clear-and-convincing standard is required to effectuate the “fresh start” policy of the Bankruptcy Code. This Court has certainly acknowledged that a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Local Loan Co. v. Hunt, 292 U. S. 234, 244 (1934). But in the same breath that we have invoked this “fresh start” policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the “honest but unfortunate debtor.” Ibid. The statutory provisions governing nondischargeability reflect a congressional decision to exclude from the general'policy of discharge certain categories of debts — such as child support, alimony, and certain unpaid educational loans and taxes, as well as liabilities for fraud. Congress evidently concluded that the creditors’ interest in recovering full payment of debts in these categories outweighed the debtors’ interest in a complete fresh start. We think it unlikely that Congress, in fashioning the standard of proof that governs the applicability of these provisions, would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud. Requiring the creditor to establish by a preponderance of the evidence that his claim is not dischargeable reflects a fair balance between these conflicting interests. I — I HH Our conviction that Congress intended the preponderance standard to apply to the discharge exceptions is reinforced by the structure of § 523(a), which groups together in the same subsection a variety of exceptions without any indication that any particular exception is subject to a special standard of proof. The omission of" } ]

[ { "docid": "16697245", "title": "", "text": "Section 523(a)(2)(A) of the Bankruptcy Code. The court found that since fraud was not originally litigated under a clear and convincing standard, collateral estoppel was not appropriate. The case was then tried in the bankruptcy court before the Honorable Jo Ann C. Stevenson for a determination of whether the acts or omissions committed by the appellee Ward constitutes fraud under Section 523(a)(2)(A) and 523(a)(4) of the Bankruptcy Code. Judge Stevenson’s Order and Opinion of June 7, 1989 discharged appel-lee’s Sixty Thousand Dollars ($60,000) debt. Discharge of Debt In a personal bankruptcy case, the issue of barring discharge of a debt is controlled by 11 U.S.C. § 523. That section provides that certain classes of debts may not be discharged, including tax debt, alimony, educational loans, and relevant to the case before me, a debt for money obtained fraudulently. Section 523(a)(2)(A) reads in relevant part: § 523 Exceptions to discharge (a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1338(b) of this title does not discharge an individual debtor from any debt — ... (2) for money, property, services, or an extension, renewal, or refinancing of credit to the extent obtained by — ... (A) False pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.... The party seeking an exception from discharge of a debt under § 523(a)(2)(A) bears the burden of proof by clear and convincing evidence. In re Martin, 761 F.2d 1163, 1165 (6th Cir.1985). When deciding whether a debt should be discharged under § 523(a)(2)(A), the standards applied should be construed in the light of the congressional objective that the debtor should be given a “new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Lines v. Frederick, 400 U.S. 18, 19, 91 S.Ct. 113, 113-14, 27 L.Ed.2d 124 (1970) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1933). Exceptions to dischargeability are to be construed strictly. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed." }, { "docid": "10235429", "title": "", "text": "rule and is persuaded by the reasoning employed by, among others, the Hall, Morrison, and Stiles courts. A case-by-case approach is adopted considering a totality of the particular circumstances of each case. As the court in In re Stiles held “notwithstanding the fact that this default judgment would be binding on the debt- or in a subsequent state court proceeding, the default judgment as to liability is not binding so as to preclude the debtor’s [bankruptcy] discharge of the judgment debt.” 118 B.R. at 86. Because this court finds that the “actually litigated” requirement of the doctrine of collateral estoppel has not been sufficiently satisfied in this proceeding, it is unnecessary to address the final requirement of whether the resolution of the issues in the prior state court litigation was “necessary” to a finding of, for example, actual fraud, false pretenses, or a false representation. The principles underlying the “fresh start” also provide compelling reasons here for recognizing an exception to the general rule of applying the doctrine of collateral estoppel or issue preclusion when the prior judgment is a state court default judgment. It is expressly noted that exceptions to the operation of an individual’s bankruptcy discharge are strictly construed against the objector and liberally in favor of the debtor. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915). The general philosophy of the laws of Congress relating to bankruptcy is “to give the debtor a ‘new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.’ ” Lines v. Frederick, 400 U.S. 18, 19, 91 S.Ct. 113, 113-14, 27 L.Ed.2d 124 (1970) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). In In re Jones, 490 F.2d 452, 457 (5th Cir.1974), the court stated as follows: “The Bankruptcy Act was intended to be a sturdy bridge over financially troubled waters by means of which ‘the honest but unfortunate debtor’ may reach ‘a new opportunity in life and a clear field for future effort, unhampered by the" }, { "docid": "7256903", "title": "", "text": "to be a part of the Bankruptcy Code, address the issue presently before the Court, to wit: whether the State of Texas can be compelled to appear and defend against the present action filed by the Debtor in this Court. DISCUSSION One of the primary purposes of the Bankruptcy Code is to provide a means by which those struggling under the weight of oppressive indebtedness can “reorder their affairs, make peace with their creditors, and enjoy a ‘new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (quoting Local Loan v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). The bankruptcy discharge is the embodiment of this “fresh start” principle, and lies at the very heart of the Bankruptcy Code. See Code § 727(b) and § 524(a). These remedial aims, however, are not without limitation. One such limitation is that debts for educational loans are not generally discharge-able. Code § 523(a)(8). This general rule, however, is itself subject to an exception for cases in which the denial of a discharge of the student loan debts would impose an “undue hardship” on the debtor and his or her dependents. Code § 523(a)(8) states as follows: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents; Code § 523(a)(8) is not self-effectuating. Rather, it requires the debtor to bring an adversary proceeding to determine whether a student loan debt is dis-chargeable under that provision, see In re Greenwood, 237 B.R. 128, 130 (N.D.Tex.1999); In" }, { "docid": "19287795", "title": "", "text": "of fact and legal precept”, we must “break down” the questions of law and fact and “apply the appropriate standard to each component.” Meridian Bank v. Alten, 958 F.2d 1226, 1229 (3d Cir.l992)(quoting Universal Minerals, 669 F.2d at 102-03, and In re Sharon Steel Corp., 871 F.2d 1217, 1222 (3d Cir.1989)). III. When a debtor files under Chapter 7 of the Bankruptcy Code, the debtor is generally granted a discharge from all debts arising prior to the filing of the bankruptcy petition. 11 U.S.C. § 727(b) (1994); see also In re Birkenstock, 87 F.3d 947, 950 (7th Cir.1996); In re Toti, 24 F.3d 806, 808 (6th Cir.1994). The remedial purpose of the Bankruptcy Code is “to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life [and] a clear field for future effort, unhampered by the pressure and discouragement of pre[-]existing debt.’ ” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). However, this “fresh start” policy provided by the Bankruptcy Code applies only to the “honest but unfortunate debtor.” Id. at 286-87, 111 S.Ct. at 659 (quoting Local Loan, 292 U.S. at 244, 54 S.Ct. at 699). The Code excepts certain liabilities from discharge. Section 528(a)(1)(C) provides: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (1) for a tax or a customs duty— (C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax. 11 U.S.C. § 523(a)(1)(C) (1994) (emphasis added). These exceptions to discharge are to be strictly construed in favor of the debtor. Dalton v. I.R.S., 77 F.3d 1297, 1300 (10th Cir.1996). Moreover, “the burden of proving that the debtor’s tax liabilities are nondischargeable under § 523(a)(1)(C) is on the United States.” Berkery v. Commissioner, 192 B.R. 835, 840 (E.D.Pa.1996), aff'd, 111 F.3d 125 (3d Cir.1997)." }, { "docid": "16697246", "title": "", "text": "for money, property, services, or an extension, renewal, or refinancing of credit to the extent obtained by — ... (A) False pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.... The party seeking an exception from discharge of a debt under § 523(a)(2)(A) bears the burden of proof by clear and convincing evidence. In re Martin, 761 F.2d 1163, 1165 (6th Cir.1985). When deciding whether a debt should be discharged under § 523(a)(2)(A), the standards applied should be construed in the light of the congressional objective that the debtor should be given a “new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Lines v. Frederick, 400 U.S. 18, 19, 91 S.Ct. 113, 113-14, 27 L.Ed.2d 124 (1970) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1933). Exceptions to dischargeability are to be construed strictly. Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915); In re Ward, 857 F.2d 1082, 1083 (6th Cir.1988). The Sixth Circuit has also noted that § 523 should be interpreted in a manner consonant with equity and Congress’s intent that “the honest citizen may be relieved from the burden of hopeless insolvency.” In re Phillips, 804 F.2d 930 (6th Cir.1986). To sustain an objection to the discharge of a debt under § 523(a)(2)(A), each plaintiff is obliged to show the following: 1. The debtor made a materially false representation; 2. The debtor knew the representation was false or made the representation with gross recklessness as to its truth at the time he made it; 3. The representation was made with the intent and purpose of deceiving the creditor; 4. The creditor reasonably relied upon the debtor’s materially false representation; and 5. The creditor sustained loss and damages as a proximate result of the materially false representation by the debtor. See, e.g., In re Phillips, 804 F.2d 930, 932 (6th Cir.1986); In re Black, 787 F.2d 503, 506 (10th Cir.1986); In re Slutzky," }, { "docid": "6891744", "title": "", "text": "creditors seeking to establish exceptions and debtors seeking discharge within the statutory framework. In so doing, the courts must first ascertain the congressional purposes underlying discharge and the false statement exception. A principal purpose of the bankruptcy laws generally, and the discharge provisions in particular, is to provide the “honest but unfortunate” debtor with “a new opportunity in life and a clear field for future effort.” Brown v. Felson, 442 U.S. 127, 128, 99 S.Ct. 2205, 2207, 60 L.Ed.2d 767 (1979), quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). Nevertheless, because exceptions to discharge prevent such a result they are construed liberally in favor of the debtor and strictly against the creditor. See, e.g., Gleason v. Thew, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1914); Roberts v. W.P. Ford & Son, Inc., 169 F.2d 151, 152 (4th Cir.1948); Johnston v. Johnston, 63 F.2d 24, 26 (4th Cir.1933). In discussing the Code’s false statement exception, Professor Zaretsky has commented as follows: “Since the purpose of the exception is to protect creditors who are actually misled by fraudulent statements of debtors, the requirement that reliance be reasonable is sensible. A creditor who ignores available information, or who fails to seek information from sources that are commonly used, should not be heard to complain about the debtor’s fraud. It is the creditor’s failing to comport with normal business practices, not the debtor’s fraud, that is the true cause of the loss.” Zaretsky, The Fraud Exception to Discharge under the New Bankruptcy Code, 53 Am.Bkrtcy.L.J. 253, 262 (1979). Cf. Appel v. Hupfield, 198 Md. 374, 380, 84 A.2d 94 (1951) (“Representations of value are regarded as expressions of opinion which should put the person to whom they are made upon inquiry, and if he chooses to rely upon such statements and fails to make inquiry, he cannot maintain an action for deceit.”). It appears appropriate, therefore, that the reasonableness of a creditor’s reliance on a financial statement should be judged by comparing the creditor’s actual conduct with (1) the creditor’s" }, { "docid": "22803086", "title": "", "text": "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Century 21 Balfour Real Estate v. Menna, 16 F.3d 7, 9 (1st Cir.1994) (quotations and citations omitted). Although we view the evidence in the light most favorable to the nonmov-ant, “[a]s to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” Id. (quoting Ralar Distribs., Inc. v. Rubbermaid, Inc., 4 F.3d 62, 67 (1st Cir.1993)) (alteration in original). III. The Bankruptcy Code offers debtors, through discharge, “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). “By seeking discharge, however, [the debtor] placets] the rectitude of his prior dealings squarely in issue, for as the Court has noted, the Act limits th[e] opportunity [for discharge] to the ‘honest but unfortunate debtor.’ ” Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) (quoting Local Loan Co., 292 U.S. at 244, 54 S.Ct. 695). Nevertheless, the Bankruptcy Code does not condition discharge upon a generalized determination of the moral character of the debtor. Instead, it specifies the types of debts that the Code deems exempt from discharge. See, e.g., 11 U.S.C. § 523(a). Moreover, “[exceptions to discharge are narrowly construed .. ! and the claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate, 16 F.3d at 9. A. The scope of the exception to discharge. As the party seeking to prevent Spigel from discharging his debt to them, the McCrorys bear this burden to show that Spigel’s debt comes squarely within an exemption from discharge. They focus their argument solely on 11 U.S.C. § 523(a)(2)(A), which exempts from discharge a debt" }, { "docid": "2568629", "title": "", "text": "debtor” of his indebtedness, allowing him to make a financial “fresh start.” Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); In re Haas, 48 F.3d 1153, 1156 (11th Cir.), cert. denied, 515 U.S. 1142, 115 S.Ct. 2578, 132 L.Ed.2d 828 (1995); Equitable Bank v. Miller (In re Miller), 39 F.3d 301, 304 (11th Cir.1994); Murphy & Robinson Inves. Co. v. Cross (Matter of Cross), 666 F.2d 873, 879-80 (5th Cir.1982). The United States Supreme Court has stated: that a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” But in the same breath that we have invoked this “fresh start” policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (internal quotations and citations omitted). This fresh start is primarily accomplished through the discharge of debt. See S. REP. NO. 95-989, at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5793 (section 727 is central to the fresh start policy). Generally, a chapter 7 debtor receives a complete discharge from most prepetition debts pursuant to section 727(b) of the Bankruptcy Code. Nonetheless, “[t]here is no constitutional right to obtain a discharge in bankruptcy ... [It] is a legislatively created benefit .... ” United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Siegel v. Weldon (In re Weldon), 184 B.R. 710, 712 (Bankr.D.S.C.1995) (discharge is not a right, but rather a statutory privilege for honest debtors) (citing Hazelip v. Hor-ridge (In re Horridge), 127 B.R. 798, 799 (S.D.Tex.1991)). For example, Congress has, through section 523 of the Bankruptcy Code, excepted certain debts from discharge. Further, section 727(a) of the Bankruptcy Code may be utilized to deny a discharge to dishonest debtors," }, { "docid": "18539365", "title": "", "text": "upon the consent judgment as well as debtor’s admissions at the 341 meeting, AMEX-TRS is requesting that the court hold the debt not dischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A), 523(a)(4), or 523(a)(6). In rebuttal, debtor asserts that preclusive effect should not be given to the consent judgment on the issue of discharge-ability of the debt for the following reasons: 1) the elements of a collection of monies action are different from those required for an exception to discharge; 2) dischargeability was never fully litigated as the issue was not essential to judgment; and 3) debtor did not have a full and fair opportunity to litigate in the prior action as he was not represented by an attorney when stipulating to the terms of the consent judgment. DISCHARGEABILITY OF A DEBT We briefly review the underlying policy and bankruptcy provisions governing discharge of debts. The Supreme Court has articulated the central purpose of the Bankruptcy Code as providing a “fresh start” for honest but unfortunate and insolvent debtors. Accordingly, the Code provides a procedure whereby debtors can reorder their financial affairs, resolve matters with their creditors and be given “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). In addition, Congress has fashioned various exceptions to the discharge of debts based on the reasoning that the creditor’s interest in being paid outweighs debtor’s interest in a fresh start. These exceptions are designed to penalize debtors for culpable acts as well as protect innocent creditors. In re Menna, 16 F.3d 7, 10 (1st Cir.1994). The exceptions are contained in 11 U.S.C. § 523(a). Those pertinent to this action include the following: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (1) ... (2) for money, property, services, or an extension renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation or actual fraud other than a" }, { "docid": "18539366", "title": "", "text": "debtors can reorder their financial affairs, resolve matters with their creditors and be given “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). In addition, Congress has fashioned various exceptions to the discharge of debts based on the reasoning that the creditor’s interest in being paid outweighs debtor’s interest in a fresh start. These exceptions are designed to penalize debtors for culpable acts as well as protect innocent creditors. In re Menna, 16 F.3d 7, 10 (1st Cir.1994). The exceptions are contained in 11 U.S.C. § 523(a). Those pertinent to this action include the following: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (1) ... (2) for money, property, services, or an extension renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation or actual fraud other than a statement respecting the debtor’s or an insider’s financial condition; (3) ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (5) ... (6) for willful and malicious injury by debt- or to another entity or to the property of another entity; ... Consistent with the purpose of the Code, the exceptions to discharge of a debt set forth in § 523(a) are strictly construed against the creditor and in favor of the debt- or. In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986); In re Ward, 88 B.R. 727, 728 (Bankr.W.D.Pa.1988). Moreover, the party opposing discharge, has the burden of persuasion. In re Burgess, 955 F.2d 134, 136 (1st Cir.1992). DISCUSSION Congress has vested Bankruptcy Courts with exclusive jurisdiction on the issue of dischargeability. Brown v. Felsen, 442 U.S. 127, 136-37, 99 S.Ct. 2205, 2211-12, 60 L.Ed.2d 767 (1979). While res judicata is not applicable to claims and defenses concerning dischargeability of a claim previously reduced to judgment in state court, Brown, 442 U.S. at 139-40, 99 S.Ct. at 2212-13," }, { "docid": "177652", "title": "", "text": "the principal purposes of the Bankruptcy Code is to “provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Grogan, 498 U.S. at 286, 111 S.Ct. 654 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). An “honest but unfortunate debt- or” is thus able to get a “fresh start,” unencumbered by their past debts. Id. at 286-87, 111 S.Ct. 654. That fresh start, however, has never been intended to pertain to all debts. The Code explicitly makes some debts nondischargeable in bankruptcy, including child support, alimony, and liabilities for fraud, because “Congress evidently concluded that the creditors’ interest in recovering full payment of debts in these categories outweighed the debtors’ interest in a complete fresh start.” Id. at 287, 111 S.Ct. 654; see also Cohen v. de la Cruz, 523 U.S. 213, 217, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). Section 523(a) thus “gives creditors an opportunity to prove that particular debts arose through impermissible means, and advances the cornerstone bankruptcy principal that relief befall only the debtor with clean hands.” In re Luthra, 182 B.R. 88, 91 (E.D.N.Y.1995); see also In re Weiss, 235 B.R. 349, 360 (Bankr.S.D.N.Y.1999) (Section 523(a)(4) is “an extension of the general bankruptcy policy that discharge is not meant to protect the dishonest debtor.”), aff'd, 255 B.R. 115 (S.D.N.Y.2000). It is the unique character of a bankruptcy discharge proceeding that counsels against holding that a valid settlement agreement bars a creditor from later attempting to prove that a certain debt arises from fraud or a defalcation of a fiduciary duty. Instructive here, although not dispositive, is the Supreme Court’s ruling in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). Broum considered the application of res judicata in the context of a bankruptcy discharge proceeding pursuant to the pre-1979 Bankruptcy Act. Section 17a(4) of the Act provided, much like the present" }, { "docid": "15943110", "title": "", "text": "4005 (\"At the trial on a complaint objecting to a discharge, the plaintiff has the burden of proving the objection.”); Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1292-93 (10th Cir.1997) (preponderance of the evidence standard applies); The First Nat’l Bank v. Serafini (In re Serafini), 938 F.2d 1156, 1157 (10th Cir.1991) (same); of. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (holding that a creditor objecting to the dischargeability of a debt under § 523(a) must prove its case by a preponderance of the evidence). . 11 U.S.C. § 727(b); see id. at § 524. . Grogan, 498 U.S. at 287, 111 S.Ct. 654 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934), quoted in Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979)); see generally, United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) (\"discharge represents an independent ... public policy in favor of extricating an insolvent debtor from what would otherwise be a ñnan-cial impasse.”) (citations and internal quotations omitted). . S.R. 989, 95th Cong., 2d Sess. 98 (1978); H.R. 595, 95th Cong., 1st Sess. 384 (1977). . Brown, 108 F.3d at 1292. . Compare 11 U.S.C. § 727(a) (preventing the discharge of all of the debtor’s debts when the debtor has engaged in bad acts that undermine the bankruptcy system as a whole) with id. at § 523(a) (preventing the discharge of a debt obtained as a result of an injury to a single creditor). . Cohen v. de la Cruz, 523 U.S. 213, 217, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). . Grogan, 498 U.S. at 287, 111 S.Ct. 654 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934), quoted in Brown, 442 U.S. at 128, 99 S.Ct. 2205), quoted in Cohen, 523 U.S. at 217, 118 S.Ct. 1212; see Brown v. Felsen, 442 U.S. 127, 128-29, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). . See generally, Kras, 409 U.S. at 447, 93" }, { "docid": "3386742", "title": "", "text": "debt comes within Section 523(a)(4), which it has not done for the reasons set forth above. B. 528(a)(2)(A) 11 U.S.C. § 523(a)(2)(A) provides: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (2)for money, property, services, or an extension, renewal or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s ... financial condition. The burden is on the plaintiff to establish each of the elements of the statute by a preponderance of the evidence. In re Balzano, 127 B.R. 524 (Bankr.E.D.N.Y.1991); Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). This standard fairly balances the conflicting interests resulting from the provisions of the Code which discharge a Chapter 7 debtor from his pre-petition debts. A discharge is meant to provide an insolvent debtor with a “fresh start”; the exceptions to discharge are designed to limit that ideal to the “honest but unfortunate debtor.” Grogan, at 286, 111 S.Ct. at 659 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). To sustain a claim under § 523(a)(2)(A), a creditor must establish the following: (1) The debtor made a false representation; (2) That at the time the representation was made, the debtor knew it was false; (3) The debtor made the representation with the intention of deceiving the creditor; (4) The creditor relied on the representation; and (5) The creditor sustained loss or damage as the proximate consequence of the false, material misrepresentation. In re Hanna, 163 B.R. 918 (Bankr.E.D.N.Y.1994); In re Jacone, 156 B.R. 740 (Bankr.S.D.N.Y.1993) (Schwartzberg, B.J.); In re Tesmetges, 86 B.R. 21, 24 (E.D.N.Y.1988); In re Balzano, 127 B.R. 524, 530 (Bankr.E.D.N.Y.1991). Section 523(a)(2) precludes the discharge of debts only “to the extent obtained” through false pretenses, false statements, or actual fraud. It “relates only to the creation of the current credit relationship ... [and] a plaintiff must establish a causal connection between the misrepresentation and the loss suffered.” In re Kibler, 172 B.R." }, { "docid": "23389858", "title": "", "text": "can have no other meaning. We adhere to the principle of statutory construction that advises us to “account for a statute’s full text.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). We thus note that in the exceptions to discharge articulated in § 523, Congress provided protection for creditors injured by the torts of bankrupt debtors in subsection (a)(6), which excepts from discharge a debt incurred as a result of the debtor’s “willful and malicious injury” to the creditor or her property. It would be unnecessary for subsection (a)(2)(A) also to provide relief for judgment creditors injured in tort. The additional subsection of § 523(a)(2), which excepts from discharge debts for money, property, services, or credit to the extent obtained by use of a false written statement, § 523(a)(2)(B), makes clear that Congress intended § 523(a)(2) to protect creditors who were tricked by debtors into loaning them money or giving them property, services, or credit through fraudulent means. In Nunnery’s case, Rountree’s fraud may have injured her, but Rountree did not commit the fraud in order to obtain anything in the sense contemplated by § 523(a)(2). Both Supreme Court and our own precedent support our interpretation of the exception in this case. The Supreme Court explained the rationale behind Congress’s adoption of the exceptions to discharge in Local Loan v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). The Court stated that bankruptcy proceedings provide “a new opportunity in life and a clear field for future effort” to an individual burdened by excessive debt, but it also cautioned that such a new opportunity is available only for the “honest but unfortunate debtor.” Hunt, 292 U.S. at 244, 54 S.Ct. 695. When a debtor has acquired debt through fraudulent means, the exceptions to discharge protect the duped creditor and demand that the debtor make good for her misdeeds. Brown v. Felsen, 442 U.S. 127, 138, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The Supreme Court has provided some guidance for our analysis of" }, { "docid": "18459766", "title": "", "text": "to offer debtors “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt,” such opportunity for a fresh start is limited to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (citing Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). Thus, a Chapter 7 debtor is not entitled to a discharge if the debtor: with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition; 11 U.S.C. § 727(a)(2). Similarly, a debtor is not entitled to a discharge if the debtor “knowingly and fraudulently, in or in connection with the case — (A) made a false oath or account....” 11 U.S.C. § 727(a)(4). Under either subsection, the party objecting to discharge “must establish grounds for denial of discharge under 11 U.S.C. § 727(a) by a preponderance of the evidence.” Stamat v. Neary, 635 F.3d 974, 978 (7th Cir.2011). A. Section 727(a)(4) (False Oath) To establish grounds to deny a discharge on the basis of a false oath, the U.S. Trustee must demonstrate that: “(1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knew the statement was false; (4) the debtor made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case.” Id. “A debtor’s petition, schedules, statement of financial affairs, statements made at a section 341 meeting, testimony given at a Bankruptcy Rule 2004 examination, and answers to interrogatories all constitute statements under oath for purposes of section 727(a)(4)(A).” Schaumburg Bank & Trust Co. v. Hartford (In re Hartford), 525 B.R. 895, 907-08 (Bankr.N.D.Ill.2015). Omissions in bankruptcy" }, { "docid": "22803087", "title": "", "text": "for as the Court has noted, the Act limits th[e] opportunity [for discharge] to the ‘honest but unfortunate debtor.’ ” Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) (quoting Local Loan Co., 292 U.S. at 244, 54 S.Ct. 695). Nevertheless, the Bankruptcy Code does not condition discharge upon a generalized determination of the moral character of the debtor. Instead, it specifies the types of debts that the Code deems exempt from discharge. See, e.g., 11 U.S.C. § 523(a). Moreover, “[exceptions to discharge are narrowly construed .. ! and the claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate, 16 F.3d at 9. A. The scope of the exception to discharge. As the party seeking to prevent Spigel from discharging his debt to them, the McCrorys bear this burden to show that Spigel’s debt comes squarely within an exemption from discharge. They focus their argument solely on 11 U.S.C. § 523(a)(2)(A), which exempts from discharge a debt “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by — false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” 11 U.S.C. § 523(a)(2)(A). Applying this language, we have said that the statutory language does not “remotely suggest that nondischargeability attaches to any claim other than one which arises as a direct result of the debtor’s misrepresentations or malice.” Century 21 Balfour Real Estate, 16 F.3d at 10. Thus, in order to establish that a debt is nondischargeable because obtained by “false pretenses, a false representation, or actual fraud,” we have held that a creditor must show that 1) the debtor made a knowingly false representation or one made in reckless disregard of the truth, 2) the debtor intended to deceive, 3) the debt- or intended to induce the creditor to rely 'upon the false statement, 4) the creditor actually relied upon the misrepresentation, 5) the creditor’s reliance was justifiable, and 6) the reliance upon the false" }, { "docid": "21961849", "title": "", "text": "(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or insider’s financial condition .... 11 U.S.C. § 523(a). The Court’s reasoning in applying a preponderance standard for establishing such causes not to discharge counsels against imposing a heightened ev-identiary standard elsewhere in the bankruptcy context without express congressional direction. Grogan noted that the statute and its legislative history, along with that of its predecessor “does not prescribe the standard of proof for the discharge exceptions” and that “[tjhis silence is inconsistent with the view that Congress intended to require a special, heightened standard of proof.” Grogan, 498 U.S. at 286, 111 S.Ct. 654. And, in determining whether a heightened standard is appropriate, the court observed that “[bjecause the preponderance-of-the-evidence standard results in a roughly equal allocation of risks of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’ ” Id. (quoting Herman & Mac-Lean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)). The Court did not find any such interests implicated in Grogan and I find none exist here. A “presumption” that a debtor remain in possession is, to be sure, based on the notion that the debtor is generally best equipped to oversee the company’s reorganization. This basis touches on the “fresh start” policy of the code: “to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Id. (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). The Grogan Court, however, was “unpersuaded- by the argument that the clear-and-convincing standard is required to effectuate” this policy, as am I in this setting. The policy is designed to provide an “unencumbered new beginning to the ‘honest but unfortunate debtor.’ ” Id. at 286-87, 111 S.Ct. 654 (quoting Local Loan Co., 292" }, { "docid": "6891743", "title": "", "text": "security for a loan to purchase a business. The financial statement did not re veal a mortgage recently placed on the realty. The bankruptcy court found that the creditor did not check the debtor’s credit rating, did not investigate the business to be purchased, and failed to ascertain the lien status of the realty. Noting that the creditor had access to all of this information but failed to make use thereof, the court held the creditor’s reliance on the financial statement to be unreasonable. 13 B.R. 967-69. Accord In re Ducote, 4 Bkrtcy.Ct.Dec. 943, 945 (Bkrtcy.W.D.La.1978) (creditor failed to examine public land records).; In re Hodges, 6 C.B.C. 65, 67-68 (Bkrtcy.S.D.Fla.1975) (same). But cf. East Providence Credit Union v. Harpootian, 108 R.I. 219, 273 A.2d 852, 855 (R.I.1971) (creditor not required to investigate whether debtor has any unlisted indebtedness). Although the Code amended the Act’s discharge language to include a statutory reasonableness requirement, Congress did not provide any definitional language. Accordingly, the courts must attempt to strike a balance between the legitimate, competing interests of creditors seeking to establish exceptions and debtors seeking discharge within the statutory framework. In so doing, the courts must first ascertain the congressional purposes underlying discharge and the false statement exception. A principal purpose of the bankruptcy laws generally, and the discharge provisions in particular, is to provide the “honest but unfortunate” debtor with “a new opportunity in life and a clear field for future effort.” Brown v. Felson, 442 U.S. 127, 128, 99 S.Ct. 2205, 2207, 60 L.Ed.2d 767 (1979), quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). Nevertheless, because exceptions to discharge prevent such a result they are construed liberally in favor of the debtor and strictly against the creditor. See, e.g., Gleason v. Thew, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1914); Roberts v. W.P. Ford & Son, Inc., 169 F.2d 151, 152 (4th Cir.1948); Johnston v. Johnston, 63 F.2d 24, 26 (4th Cir.1933). In discussing the Code’s false statement exception, Professor Zaretsky has commented as follows: “Since" }, { "docid": "10212637", "title": "", "text": "debtor in good faith, and was the debt- or’s best effort; or (10) the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter. 11 U.S.C.A. § 727(a) (1979 & Supp.1985). This section codifies the Congressional determination of the conditions a chapter 7 debtor must meet to obtain a bankruptcy discharge. It is the duty of the bankruptcy court to grant or deny a discharge based on these conditions. Commenting on the discharge provision of the Bankruptcy Act of 1898 shortly before the effective date of the Bankruptcy Reform Act of 1978, the Supreme Court stated: Through discharge, the Bankruptcy Act provides “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt,” Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). By seeking discharge, however, respondent placed the rectitude of his prior dealings square ly in issue, for, as the Court has noted, the Act limits that opportunity to the “honest but unfortunate debtor.” Ibid. Section 14 of the Act, 11 U.S.C. § 32, specifies that a debtor may not obtain a discharge if he has committed certain crimes or offenses. Brown v. Felsen, 442 U.S. 127, 128-29, 99 S.Ct. 2205, 2207-08, 60 L.Ed.2d 767 (1979) (emphasis in original). Discharge, the principal objective of a chapter 7 debtor, is a statutory right involving public policy considerations. It is not a proper subject for contractual negotiation. See In re Levy, 127 F.2d 62 (3rd Cir.1942) (offer of $5,000 by third party to compromise turnover proceeding commenced by creditors’ committee on condition there would be no opposition to bankrupt’s discharge was illegal); United States v. Hampton, 47 B.R. 47, 50 (Bankr.N.D.Ill.1985 (Congress only has the power to dictate terms for discharge in bankruptcy, which is a privilege, not a right). Discharge “is refused to a dishonest bankrupt as a punishment for his fraud and to prevent its continuance in the future. In a sense the question has passed beyond the creditors and is one" }, { "docid": "23389859", "title": "", "text": "case, Rountree’s fraud may have injured her, but Rountree did not commit the fraud in order to obtain anything in the sense contemplated by § 523(a)(2). Both Supreme Court and our own precedent support our interpretation of the exception in this case. The Supreme Court explained the rationale behind Congress’s adoption of the exceptions to discharge in Local Loan v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). The Court stated that bankruptcy proceedings provide “a new opportunity in life and a clear field for future effort” to an individual burdened by excessive debt, but it also cautioned that such a new opportunity is available only for the “honest but unfortunate debtor.” Hunt, 292 U.S. at 244, 54 S.Ct. 695. When a debtor has acquired debt through fraudulent means, the exceptions to discharge protect the duped creditor and demand that the debtor make good for her misdeeds. Brown v. Felsen, 442 U.S. 127, 138, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The Supreme Court has provided some guidance for our analysis of the specific question in this case. It has ruled that a bankruptcy court may look behind the record of the underlying judgment to determine if the debtor indeed obtained the debt through fraudulent means. Brown, 442 U.S. at 138-39, 99 S.Ct. 2205. The Court has held that a bankruptcy court should use a preponderance of the evidence standard to determine fraud in exception cases. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). It has determined that subsection (a)(2)(A) provides an exception to the diseharge of punitive damages when those punitive damages arise from a debt obtained through fraud. Cohen, 523 U.S. at 215, 118 S.Ct. 1212. The Court has also held that the subsection excepts from discharge the settlement agreement in a fraud case. Archer v. Warner, 538 U.S. 314, 316, 123 S.Ct. 1462, 155 L.Ed.2d 454 (2003). The dicta in the Court’s fraud-exception jurisprudence lend support to Nunnery’s claim that Rountree’s judgment debt cannot be discharged in bankruptcy. In Brown, the Court stated that the “broad language” of" } ]

[ { "docid": "21888784", "title": "", "text": "appellants’ constitutional right to a speedy trial was violated, we must consider the length of the delay, reason for the delay, assertion of the right and the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Blackburn v. U. S. Dist. Court for N. Dist. of Cal., 564 F.2d 332, 333 (9th Cir. 1977). There was a delay of approximately five months here, which in itself is insufficient to show violation of the right. The reason for the delay was apparently caused by court congestion and is not attributable to either the government or the appellants. Appellants did not assert their right until shortly before the time when their trial actually commenced. And, finally, appellants fail to show any actual prejudice resulting from the delay. We therefore conclude that appellants were not denied their right to a speedy trial. JURY INSTRUCTION Appellants claim that the trial judge erred in failing to give one of their proposed jury instructions on the conspiracy charge. In the exercise of our discretion, we do not reach this issue because of the concurrent sentence doctrine. A federal appellate court may decline to decide an issue as to a conviction under one count of an indictment if the defendant has been validly convicted under another count and concurrent sentences were imposed for the convictions. United States v. Walls, 577 F.2d 690, 699 (9th Cir. 1978). Appellants were convicted on one count of distribution of heroin, one count of conspiracy to distribute heroin, and sentenced to concurrent terms. Their claim of error only relates to the conspiracy count. The evidence against them on both counts was overwhelming and the conviction on the distribution count was unassailable (testimony of appellants’ co-conspirator who had already entered a guilty plea, observations of several D.E.A. agents, and statements made by appellants to the agents). See United States v. Monroe, 552 F.2d 860, 865 (9th Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1009. Appellants do not show, nor do we perceive any adverse legal consequences which will result" } ]

[ { "docid": "23053008", "title": "", "text": "the sixth amendment right to speedy trial has been violated. In Barker v. Wingo, 407 U.S. 514, 531-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), the Supreme Court enunciated the factors to be considered in determining whether the sixth amendment right to a speedy trial has been denied: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice resulting from the delay. See United States v. Saunders, 641 F.2d 659, 665 (9th Cir. 1980). Here, the delay between indictment and trial was less than five months. This delay cannot be considered “presumptively prejudicial,” so as to even trigger the balancing and require an examination of the other three factors. Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192; United States v. Rich, 589 F.2d 1025 (10th Cir. 1978); see United States v. Diaz-Alvarado, 587 F.2d 1002, 1005 (9th Cir. 1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1261, 59 L.Ed.2d 482 (1979) (five month delay insufficient in itself to show violation of right). Even if we consider the other factors, the reason for the delay, as discussed in Part I supra, was largely the need to preserve continuity of defense counsel. Of this, the portion caused by court congestion is not attributable to the Government for sixth amendment speedy trial analysis, see United States v. Diaz-Alvarado, supra. More importantly, Stelly has not alleged any prejudice whatsoever resulting from the delay. See United States v. Saunders, supra; United States v. Diaz-Alvarado, supra. We find that neither defendant’s right to a speedy trial under the sixth amendment nor implementing Federal Rule of Criminal Procedure 48(b) has been abridged. Cf. United States v. Pilla, 550 F.2d 1085 (8th Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2954, 53 L.Ed.2d 1080 (1977) (violation of implementing Federal Rule of Criminal Procedure 48(b) is addressed to discretion of district court and reversed only for abuse of discretion); United States v. Dooling, 406 F.2d 192, 196 (2d Cir.), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969) (showing" }, { "docid": "23361336", "title": "", "text": "the level of a constitutional violation. In determining whether a defendant has been deprived of his constitutional right to a speedy trial under the Sixth Amendment, a court should consider and balance the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Dirden, 38 F.3d 1131, 1137 (10th Cir.1994). The threshold factor to consider is the length of the delay. We need only inquire into the other factors if the period of delay is “presumptively prejudicial.” See Dirden, 38 F.3d at 1137. Here we find that the delay of approximately seven months, even if not excusable, is not “presumptively prejudicial” and, therefore, a Barker analysis is not necessary. See Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (“[T]he lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”); Dirden, 38 F.3d at 1138 (seven-and-one-half-month delay between arraignment and trial not “presumptively prejudicial”); United States v. Kalady, 941 F.2d 1090, 1095-96 (10th Cir.1991) (eight-month delay between indictment and trial nonprejudieial); United States v. Bagster, 915 F.2d 607, 611 (10th Cir.1990) (delay of thirty months insufficient to trigger Barker analysis). But see Gomez, 67 F.3d at 1521 (twelve-and-one-half-month delay triggered Barker analysis); Perez v. Sullivan, 793 F.2d 249, 255 (10th Cir.1986) (delay of fifteen months triggered Barker analysis). In any event, given that the reason for the delay was brought about by Mr. Lugo’s motion to suppress, plus the fact that the right to a speedy trial was never asserted and there has been no showing of prejudice, we conclude that there has been no violation of Mr. Lugo’s Sixth Amendment right to a speedy trial. B. Denial of Mr. Lugo’s Motion to Suppress Mr. Lugo contends that the district court erred by denying his motion to suppress evidence seized during a warrantless search of the vehicle" }, { "docid": "7583718", "title": "", "text": "knowingly and intelligently. And in Caballero v. Hudspeth, 114 F.2d 545 (10th Cir. 1940), we identified the right not to be placed in jeopardy twice for the same offense as a personal right which could be waived by the accused by an intelligent, knowledgeable plea of guilty. We hold that neither Rich nor his counsel consented to the trial court’s entry of the order of discharge of the jury and that the record is barren of any justifiable cause for the discharge order. Under these circumstances, the Double Jeopardy Clause bars reprosecution of Rich. II. Rich argues that he was denied his right to a speedy trial contrary to the Sixth Amendment. In evaluating this contention we must consider the four factors articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. The delay in this case was somewhat more than nine months, including more than four months from the end of the first trial to the commencement of the second, and more than five months following the temporary excuse of the jury. Unless the delay is “presumptively prejudicial,” we need not examine the other three factors enunciated in Barker. Barker v. Wingo, supra, at 530, 92 S.Ct. 2182. While recognizing that the length of delay that will trigger such an examination depends upon the circumstances of each case (Barker v. Wingo, supra, at 530, 531, 92 S.Ct. 2182), we note that delays longer than that involved here have been held not to constitute Sixth Amendment violations. See United States v. Mackay, 491 F.2d 616 (10th Cir. 1973), cert. denied, 416 U.S. 972, 94 S.Ct. 1996, 40 L.Ed.2d 560 (1974), 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974) (18 months); United States v. Goeltz, 513 F.2d 193 (10th Cir. 1975), cert. denied, 423 U.S. 830, 96 S.Ct. 51, 46 L.Ed.2d 48 (1975) (17 months); United States v. Redmond, 546 F.2d 1386 (10th Cir. 1977), cert. denied, 435 U.S. 995," }, { "docid": "6843244", "title": "", "text": "calendar. Carreon took no steps in the district court to cut short this delay. Finally, we note that the two-week delay between June 26 and July 9, 1979 was due to Carreon’s unavailability. Because the delay was in major part due to the negligence of the parties and oversight in the courts, and because Carreon failed to assert his speedy trial rights or otherwise move to expedite the case prior to July 23, 1979, the reasons for the delay do not mandate dismissal of the prior indictment with prejudice. Accordingly, the trial court acted within its discretion in determining that to try Carreon would not violate the Speedy Trial Act. C. Sixth Amendment Speedy Trial Right What we have already said largely disposes, we think, of Carreon’s complaint that his Sixth Amendment speedy trial right was violated. Although Sixth Amendment speedy trial issues require a careful, ad hoc balancing approach, four critical factors are to be examined in every case. These are the “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 533, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Considering these factors, we conclude that no Sixth Amendment violation occurred. The length of delay here involved was approximately one year. Though significant, the delay was not extreme. See United States v. Joyce, 499 F.2d 9, 20 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974). The delay was due, in part, to the government’s negligence in failing to move to expedite the case. Such negligence is to be “weighted less heavily” than intentional delay. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192. The delay was also due to Carreon’s negligence, however; Carreon failed to asset his right during the entire period of the delay. As the Supreme Court emphasized in Barker, “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532, 92 S.Ct. at 2193. Finally, Carreon has" }, { "docid": "18920015", "title": "", "text": "Amendment Right to a Speedy Trial: The Barker Test The Supreme Court set forth the test for determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors to be considered are (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant has timely asserted his right to a speedy trial, and (4) whether the defendant has suffered prejudice as a result of the delay. See id. at 530-32, 92 S.Ct. at 2192-93. All four factors need not be present, however, to find a violation. See id. at 533, 92 S.Ct. at 2192. “[Tjhese factors have no tahsmanic qualities; courts must still engage in a difficult and sensitive balancing process.” Id. A. The Length of the Delay Length of delay, in addition to being the first factor in the Barker test, also represents an independent hurdle which must be overcome to prompt that test. “Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, he cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, 120 L.Ed.2d 520, 528 (1992) (citation omitted). The Supreme Court noted that “lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Id. n. 1. The delay between King’s indictment and his trial on those charges is over 31 months, and thus is sufficient to trigger the Barker test. The government correctly notes that in Barker itself, a delay of five years was held not to violate the accused’s right to a speedy trial, and that the Fourth Circuit, in Ricon v. Garrison, 517 F.2d 628 (4th Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 195, 46 L.Ed.2d 127 (1975), held that a delay of 36 months did" }, { "docid": "23567412", "title": "", "text": "triggering event will be the filing of an indictment. Whereas due process considerations generally govern pre-indictment delay, United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), post-indictment delay implicates the Sixth Amendment speedy trial guarantee, United States v. Greene, 737 F.2d 572, 575 (6th Cir.1984). Here, Watford complains of prosecutorial delay that followed the filing of the July 22, 1998 Indictment. Thus, we reject the Government’s contention that Watford’s Sixth Amendment speedy trial rights did not accrue until his April 20, 2004 arraignment, and find that Watford’s Sixth Amendment rights were implicated no later than the filing of the July 22, 1998 Indictment. See id. The Supreme Court has rejected rigid rules for determining when a Sixth Amendment speedy trial violation has occurred in favor of an ad hoc balancing approach. Barker v. Wingo, 407 U.S. 514, 523-30, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see also Sanders, 452 F.3d at 578 (discussing the Barker test in light of the purposes of the underlying right). Four factors guide a court’s inquiry into the merits of a post-indictment speedy trial claim: “(1) whether the delay was uncommonly long; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether prejudice resulted to the defendant.” Maples, 427 F.3d at 1025 (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). None of these factors, standing alone, is sufficient to establish a Sixth Amendment violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182. Rather, a court must conduct a balancing analysis that considers each of these factors, together with such other circumstances as may be relevant. United States v. Schreane, 331 F.3d 548, 553 (6th Cir.2003). 1. Length of the Delay The first Barker factor serves as a threshold to any Sixth Amendment speedy trial claim. Maples, 427 F.3d at 1025. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182; see also United States v. Brown," }, { "docid": "23053007", "title": "", "text": "deemed non-excludable, when added to the initial fifty-three day unexcludable period, the unexcused delay totals sixty-eight days. Thus, defendants were brought to trial within the seventy day time limit of the Speedy Trial Act and dismissal is not warranted. II. SIXTH AMENDMENT CLAIM [11-13] Defendant Stelly claims that the delay, in addition to violating the seventy day limit of the Speedy Trial Act, also violated his constitutional right to a speedy trial as guaranteed by the sixth amendment, and as implemented by Rule 48(b) of the Federal Rules of Criminal Procedure. The Speedy Trial Act was enacted in part out of dissatisfaction with sixth amendment speedy trial jurisprudence, and to put more life into defendants’ speedy trial rights. So, although no provision of the Speedy Trial Act is intended to bar any sixth amendment speedy trial claim, 18 U.S.C. § 3173 (1976); see United States v. Herman, 576 F.2d 1139, 1140 n.3 (5th Cir. 1978), it will be an unusual case in which the time limits of the Speedy Trial Act have been met but the sixth amendment right to speedy trial has been violated. In Barker v. Wingo, 407 U.S. 514, 531-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), the Supreme Court enunciated the factors to be considered in determining whether the sixth amendment right to a speedy trial has been denied: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice resulting from the delay. See United States v. Saunders, 641 F.2d 659, 665 (9th Cir. 1980). Here, the delay between indictment and trial was less than five months. This delay cannot be considered “presumptively prejudicial,” so as to even trigger the balancing and require an examination of the other three factors. Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192; United States v. Rich, 589 F.2d 1025 (10th Cir. 1978); see United States v. Diaz-Alvarado, 587 F.2d 1002, 1005 (9th Cir. 1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1261, 59 L.Ed.2d 482 (1979) (five month delay insufficient in itself to" }, { "docid": "5252510", "title": "", "text": "need not, therefore, consider the status of the remaining contested periods. Even allowing for a margin of computational error, the Government did not violate the Plans’ requirements. We turn now to appellants’ Sixth Amendment claims. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court enunciated four factors to be considered in evaluating a claim of a denial of the right to a speedy trial. These factors are the length of the delay, the reasons for the delay, the defendant’s assertion of his right, and the extent of prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. Other relevant circumstances may also be considered. These factors, the Court noted, have no “talismanic qualities”; none is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Id. at 533, 92 S.Ct. at 2193. The delay here was lengthy — some 24 months elapsed from indictment to first trial — but was nevertheless considerably shorter than that of other cases in which no Sixth Amendment violation has been found. See, e. g., Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193 (“well over five years”); United States v. DiFrancesco, supra at 776 (“about 30 months”); United States v. Lane, 561 F.2d 1075 (2d Cir. 1977) (approximately 58 months). There were a variety of reasons for the delay, including the Government’s interlocutory appeal, defendants’ requests for continuances, pretrial motions, the illness of the Assistant United States Attorney, and court congestion. Some delays were clearly due to institutional dysfunction. These delays, while weighing against the Government, do so less heavily than “deliberate delays or delays related to inexcusable inefficiency,” United States v. Companion, 545 F.2d 308, 312 n.3 (2d Cir. 1976); see Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192; United States v. Roberts, 515 F.2d 642, 646 (2d Cir. 1975). There is no evidence of bad faith or deliberate delays here. The Court’s third factor weighs against appellants. Rather than “repeatedly and energetically” asserting their rights, as in United" }, { "docid": "23053009", "title": "", "text": "show violation of right). Even if we consider the other factors, the reason for the delay, as discussed in Part I supra, was largely the need to preserve continuity of defense counsel. Of this, the portion caused by court congestion is not attributable to the Government for sixth amendment speedy trial analysis, see United States v. Diaz-Alvarado, supra. More importantly, Stelly has not alleged any prejudice whatsoever resulting from the delay. See United States v. Saunders, supra; United States v. Diaz-Alvarado, supra. We find that neither defendant’s right to a speedy trial under the sixth amendment nor implementing Federal Rule of Criminal Procedure 48(b) has been abridged. Cf. United States v. Pilla, 550 F.2d 1085 (8th Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2954, 53 L.Ed.2d 1080 (1977) (violation of implementing Federal Rule of Criminal Procedure 48(b) is addressed to discretion of district court and reversed only for abuse of discretion); United States v. Dooling, 406 F.2d 192, 196 (2d Cir.), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969) (showing of prejudice from delay necessary to invoke Rule 48(b)). III. SUFFICIENCY OF THE EVIDENCE In addition to his speedy trial contentions, Stelly claims that the evidence against him was not sufficient to convict him of the August 31, 1980, theft from interstate shipment in violation of 18 U.S.C. § 659 (1976). Viewing the evidence in the light most favorable to the Government, we find that there was ample evidence to permit a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Spears, 631 F.2d 114 (9th Cir. 1980). Accordingly, the convictions are AFFIRMED. . See S.Rep.No.1021, 93d Cong., 2d Sess. 21 (1974). . S.Rep.No.1021, 93d Cong., 2d Sess. 41 (1974). . The other three factors were part of the text of the 1974 Act: whether a miscarriage of justice would likely result if the continuance were not granted, whether the nature of the case is such that adequate preparation cannot" }, { "docid": "13169937", "title": "", "text": "stressed that “the purpose of the provision is to make sure that [the Speedy Trial Act] does not alter the present rules on severance of codefendants by forcing the [government to prosecute the first defendant separately or to be subject to a speedy trial dismissal motion under section 3162.” S.Rep.No. 93-1021, 93rd Cong., 2nd Sess. (1974). The express exclusionary command of § 3161(h)(7) and the congressional guidance gleaned from its legislative history refutes the appellant’s contention that the district court abused its discretion in denying his motions for severance. The appellant’s statutory right to a speedy trial was not violated by the four-month pretrial delay. A defendant’s constitutional right to a speedy trial cannot be established by any inflexible rule but can be determined only by a balancing test in which the conduct of the prosecution and that of the defendant are weighed. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, outlined the factors to be considered: (1) the length of delay; (2) the reason for delay; (3) the defendant’s assertions of his right; and (4) the prejudice to the defendant. “The first prong of Barker, the length of the delay, is the threshold ‘triggering mechanism.’ No inquiry into the other factors is required unless there has been a delay of such length as to be ‘presumptively prejudicial.’” United States v. Edwards, 577 F.2d 883, 888 (5th Cir.1978), citing Barker, 407 U.S. at 530, 92 S.Ct. 2182. In this case, the four-month delay cannot be considered “presumptively prejudicial,” so as to even trigger the balancing and require an examination of the other three factors. United States v. Avalos, 541 F.2d 1100 (5th Cir.1976); Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192. We note that delays longer than that involved here have been held not to constitute sixth amendment violations. See United States v. Burns, 662 F.2d 1378, 1384 (11th Cir.1981) (twelve-month delay); United States v. Elorduy, 612 F.2d 986, 988 (5th Cir.1980) (“no prejudice actually or presumptively resulted from [a five-month] delay.”); United States v." }, { "docid": "7583719", "title": "", "text": "four months from the end of the first trial to the commencement of the second, and more than five months following the temporary excuse of the jury. Unless the delay is “presumptively prejudicial,” we need not examine the other three factors enunciated in Barker. Barker v. Wingo, supra, at 530, 92 S.Ct. 2182. While recognizing that the length of delay that will trigger such an examination depends upon the circumstances of each case (Barker v. Wingo, supra, at 530, 531, 92 S.Ct. 2182), we note that delays longer than that involved here have been held not to constitute Sixth Amendment violations. See United States v. Mackay, 491 F.2d 616 (10th Cir. 1973), cert. denied, 416 U.S. 972, 94 S.Ct. 1996, 40 L.Ed.2d 560 (1974), 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974) (18 months); United States v. Goeltz, 513 F.2d 193 (10th Cir. 1975), cert. denied, 423 U.S. 830, 96 S.Ct. 51, 46 L.Ed.2d 48 (1975) (17 months); United States v. Redmond, 546 F.2d 1386 (10th Cir. 1977), cert. denied, 435 U.S. 995, 98 S.Ct. 1645, 56 L.Ed.2d 83 (1978) (11 months); United States v. Bettenhausen, 499 F.2d 1223 (10th Cir. 1974) (10 months). On the other hand, the delay in this case was brought about after the Government had already tried Rich once and, to a significant extent, after it had undertaken proceedings to try him a second time. We need not decide whether the delay is “presumptively prejudicial,” because Rich clearly has not made a strong showing on the other three factors. Rich at no time asserted his right to a speedy trial. He has not established the elements of prejudice identified in Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. 2182. There is no record that Rich was incarcerated during the delay or that he was otherwise depressed. At the May 25,- 1976 hearing, counsel for Rich declared in a conclusory fashion that his client had been prejudiced due to the witnesses’ fading memories and the difficulty of keeping track of witnesses. This claim has in no manner been substantiated. We do indeed" }, { "docid": "22189998", "title": "", "text": "Amendment Right to a Speedy Trial Schlei also contends that the delays in the pretrial proceedings violated his Sixth Amendment right to a speedy trial. Although compliance with the Speedy Trial Act does not bar Sixth Amendment speedy trial claims, “it will be an unusual case in which time limits of the Speedy Trial Act have been met but the [S]ixth [A]mendment right to a speedy trial has been violated.” United States v. Saintil, 705 F.2d 415, 418 (11th Cir.) (citation omitted), cert. denied, 464 U.S. 855, 104 S.Ct. 171, 78 L.Ed.2d 155 (1983). The district court’s denial of Schlei’s motion to dismiss based upon the Sixth Amendment right to a speedy trial is reviewed de novo. United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir.1993). We review the district court’s factual findings for clear error. Id. In evaluating whether the constitutional guarantee to a speedy trial had been violated, this court must consider (1) the length of the delay, (2) the reason for the delay, (3) whether and when the defendant asserted the right to a speedy trial, and (4) whether defendant has suffered actual prejudice as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). These factors must be considered together—no single factor is sufficient to find a deprivation of the defendant’s Sixth Amendment right. Id. at 533, 92 S.Ct. at 2193. If each of the first three factors weigh heavily in favor of the defendant, however, the defendant is not required to demonstrate actual prejudice. United States v. Davenport, 935 F.2d 1223, 1239 (11th Cir.1991). 1. Length of the Delay The length of the delay must be “presumptively prejudicial” to trigger an inquiry into the other three factors. Ringstaff v. Howard, 885 F.2d 1542, 1543 (11th Cir. 1989), cert. denied, 496 U.S. 927, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990). A delay is considered presumptively prejudicial as it approaches one year. United States v. Davenport, 935 F.2d 1223, 1239 (11th Cir.1991). In this case, more than two years elapsed between Schlei’s indictment on October 8," }, { "docid": "8775918", "title": "", "text": "for the first time the claim that the indictment should have been dismissed. Rather than allow appellant’s “wait and see” tactic to prevail, we find that he has waived this objection. Id.; see Tenorio-Angel, 756 F.2d at 1508 n. 5. Accordingly, Mr. Holguin’s argument lacks merit. b. sixth amendment claim Mr. Holguin states his sixth amendment speedy trial argument as follows: Holguin first appeared before a judicial officer on November 2, 1985 and remained in custody until his trial began [on] May 16, 1986 — 195 days after his first appearance and in violation of his right to speedy trial under the Sixth Amendment and 18 U.S.C. 3161. Defendant’s right to speedy trial under 18 U.S.C. 3161 and the Speedy Trial Clause of the Sixth Amendment to the United States Constitution were denied. Holguin’s Br. at 101-02 (emphasis in original). Mr. Holguin cannot prevail. As the Supreme Court has noted: “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance .... [T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker v. Wingo, 407 U.S. 514, 530-31, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972) (emphasis supplied). In United States v. Diaz-Alvarado, 587 F.2d 1002 (9th Cir.1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1261, 59 L.Ed.2d 482 (1979), the Ninth Circuit held that a 152-day delay in bringing a narcotics conspiracy to trial was “insufficient to show [a] violation of the right” where the “appellant[] fail[ed] to show any prejudice resulting from the delay.” Id. at 1005. Indeed, without even considering time properly excluded under 18 U.S.C. § 3161(h), we fail to see how Mr. Holguin raises an argument that the delay here was prejudicial. Therefore, his claim must fail. Special Parole Mr. Alvarez raises the contention that his special parole sentence for life on count 12 of the indictment should be vacated because the statute authorizing such sentence is unconstitutional. On February 13, 1987, however, he filed a motion with the district" }, { "docid": "2319521", "title": "", "text": "See Banks v. McGougan, 717 F.2d 186, 190 (5th Cir.1983). Thus, we do not reach the second level of habeas inquiry. Right to Speedy Trial Determining whether a defendant’s Sixth Amendment right to a speedy trial has been violated requires a careful balancing of the four factors enunciated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors are: (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the right, and (4) the prejudice to the defendant. In balancing these factors, the district court made several findings, ultimately concluding no violation to have occurred. We find the court’s overall evaluation not to have been clearly erroneous. Davis v. Puckett, 857 F.2d 1035, 1041 (5th Cir.1988). (1) Length of Delay This first factor serves as a “triggering mechanism.” Barker, 407 U.S. at 530, 92 S.Ct. at 2191. If the length of delay reaches a threshold level regarded as “presumptively prejudicial,” the court must make findings regarding the remaining three factors and balance all accordingly. Id. The relevant period of delay is that following accusation, either arrest or indictment, whichever occurs first. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). In this case, Robinson was arrested for the rape on October 7,1980, and his trial began on April 12, 1984. The district court correctly found this delay of approximately forty-two and a half months to require examination of the remaining factors. This circuit generally requires a delay of one year to trigger speedy trial analysis. Nelson v. Hargett, 989 F.2d 847, 851 (5th Cir.1993). The balancing of factors required by Barker emphasizes that the delay itself is merely presumptive and does not warrant an immediate conclusion that the defendant has been denied his Sixth Amendment right to a speedy trial. United States v. Carter, 603 F.2d 1204, 1207 (5th Cir.1979). His conduct must be weighed against that of the government. Id. (2) Reasons for the Delay The district court found that the approximate twenty-three-month delay between Robinson’s arrest and" }, { "docid": "5485208", "title": "", "text": "caused by pretrial motions, McAfee would not have been vacated. B. The defendants also contend that the delay between their indictment and trial violated their Sixth Amendment right to a speedy trial. A Sixth Amendment speedy trial claim is assessed by balancing the length of the delay, the reason for the delay, whether the defendant asserted his right to a speedy trial, and whether the delay prejudiced the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972). “[N]o single factor is ‘either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.’ ” Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir.) (quoting Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193), cert. denied, 479 U.S. 936, 107 S.Ct. 413, 93 L.Ed.2d 364 (1986). 1. The length of the delay is “a triggering mechanism;” only if the period is “presumptively prejudicial” need we inquire into the other factors. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191. Starting from the date of the indictment, United States v. Padilla, 819 F.2d 952, 963 (10th Cir.1987), the delay in this case was nearly six years. While a longer delay is tolerable for a complex conspiracy than for an ordinary crime, Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192, this delay clearly triggers consideration of the other factors. See United States v. Hay, 527 F.2d 990, 994 (10th Cir.1975) (further analysis triggered by seventeen-month delay in prosecution for conspiracy to defraud the United States), cert. denied, 425 U.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d 176 (1976); see also, e.g., United States v. Colombo, 852 F.2d 19, 24 (1st Cir.1988). 2. The causes of the delay may be stated as follows: The delay from February to October 1983 was caused by Ellsworth’s unavailability. The delay from November 1983 to May 1986 was attributable to the interlocutory appeal. From June 1986 to February 1987, trial was delayed by waivers and other motions by the defendants. The delay from March 1987 to March 1988 was" }, { "docid": "13169938", "title": "", "text": "the reason for delay; (3) the defendant’s assertions of his right; and (4) the prejudice to the defendant. “The first prong of Barker, the length of the delay, is the threshold ‘triggering mechanism.’ No inquiry into the other factors is required unless there has been a delay of such length as to be ‘presumptively prejudicial.’” United States v. Edwards, 577 F.2d 883, 888 (5th Cir.1978), citing Barker, 407 U.S. at 530, 92 S.Ct. 2182. In this case, the four-month delay cannot be considered “presumptively prejudicial,” so as to even trigger the balancing and require an examination of the other three factors. United States v. Avalos, 541 F.2d 1100 (5th Cir.1976); Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192. We note that delays longer than that involved here have been held not to constitute sixth amendment violations. See United States v. Burns, 662 F.2d 1378, 1384 (11th Cir.1981) (twelve-month delay); United States v. Elorduy, 612 F.2d 986, 988 (5th Cir.1980) (“no prejudice actually or presumptively resulted from [a five-month] delay.”); United States v. Rankin, 572 F.2d 503, 505 (5th Cir.1978) (“A seven-month delay is not presumptively prejudicial .... ”); United States v. Maizumi, 526 F.2d 848, 851 (5th Cir.1976) (“The [ten-month] delay per se was not unreasonably long”). Even if we considered the other factors, appellant Gavin has not alleged any prejudice resulting from the pretrial delay. In the absence of a showing that he suffered some particular injury, such as lost evidence or prolonged pretrial incarceration, “we must presume that [appellant Gavin] relies on the anxiety inherent in any delay. Standing alone, however, this form of prejudice is insufficient to warrant reversal.” United States v. Hill, 622 F.2d 900, 910 (5th Cir.1980); United States v. Wilson, 657 F.2d 755, 767 (5th Cir.1981); United States v. Greer, 655 F.2d 51, 53 (5th Cir. 1981); United States v. Noll, 600 F.2d 1123, 1127-28 (5th Cir.1979). The district court did not err by declining to dismiss the indictment either pursuant to the sixth amendment or pursuant to the Speedy Trial Act. Denial of Severance The point pressed most strenuously on" }, { "docid": "18008300", "title": "", "text": "claims for relief and asserts only his Sixth Amendment claim on this appeal. In assessing appellant Sixth Amendment claim the starting point is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the Supreme Court enunciated an ad hoc balancing test to be applied in determining whether a defendant has been deprived of his constitutional right to a speedy trial. The Supreme Court identified four factors that should be considered in making this determination: the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and the resulting prejudice to the defendant from the delay. 407 U.S. at 530, 92 S.Ct. 2182. The length of the delay. The ten-month delay that elapsed between appellant’s demand for a speedy trial and his subsequent trial is sufficiently lengthy to trigger a further inquiry into his speedy trial allegations. See Paine v. McCarthy, 527 F.2d 173, 176 (9th Cir. 1975), cert. denied, 424 U.S. 957, 96 S.Ct. 1434, 47 L.Ed.2d 363 (1976); United States v. Strunk, 467 F.2d 969, 971-72 (7th Cir. 1972), rev’d on other grounds, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). The delay is not, however, so inordinately lengthy that it requires an automatic dismissal. See Barker v. Wingo, supra (five-year delay; no denial of speedy trial); United States v. Larson, 555 F.2d 673, 675 (8th Cir. 1977) (fifteen-month delay; no denial of speedy trial); United States v. Smith, 552 F.2d 257, 262 (8th Cir. 1977) (twenty-one month delay; no denial of speedy trial); United States v. Crow Dog, 532 F.2d 1182, 1192-94 (8th Cir.), application for stay denied, 426 U.S. 917, 96 S.Ct. 2620, 49 L.Ed.2d 370 (1976) (twenty-two-month delay; no denial of speedy trial). The ten-month delay in this case is, however, long enough to require consideration of the other relevant factors. The reason for the delay. The District Court found that while the State of Arkansas was unaware that appellant had filed a writ of mandamus demanding a speedy trial and a waiver of extradition, its lack of knowledge" }, { "docid": "22189999", "title": "", "text": "right to a speedy trial, and (4) whether defendant has suffered actual prejudice as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). These factors must be considered together—no single factor is sufficient to find a deprivation of the defendant’s Sixth Amendment right. Id. at 533, 92 S.Ct. at 2193. If each of the first three factors weigh heavily in favor of the defendant, however, the defendant is not required to demonstrate actual prejudice. United States v. Davenport, 935 F.2d 1223, 1239 (11th Cir.1991). 1. Length of the Delay The length of the delay must be “presumptively prejudicial” to trigger an inquiry into the other three factors. Ringstaff v. Howard, 885 F.2d 1542, 1543 (11th Cir. 1989), cert. denied, 496 U.S. 927, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990). A delay is considered presumptively prejudicial as it approaches one year. United States v. Davenport, 935 F.2d 1223, 1239 (11th Cir.1991). In this case, more than two years elapsed between Schlei’s indictment on October 8, 1992, and the commencement of trial on October 4, 1994. The Government concedes that this period of time is sufficient to merit an inquiry into the three remaining Barker factors. 2. Reason for the Delay Different reasons for delay are accorded different weight in the Barker analysis. 407 U.S. at 531, 92 S.Ct. at 2192. Government actions which are tangential, frivolous, dilatory, or taken in bad faith weigh heavily in favor of a finding that a speedy trial violation occurred. United States v. Loud Hawk, 474 U.S. 302, 315-17, 106 S.Ct. 648, 656-57, 88 L.Ed.2d 640 (1986). Conversely, delays that occur for valid reasons, such as overcrowded courts or strongly contested interlocutory appeals, will not be accorded heavy weight against the Government. Id. This court has held that where the delay was caused by “numerous pretrial motions; the illness of an essential government witness; [defendant’s] substitution of counsel; and scheduling conflicts resulting in the unavailability of certain defense counsel,” there was no violation of the Sixth Amendment. Twitty, 107 F.3d at 1490. In addition, even" }, { "docid": "2531575", "title": "", "text": "v. Saglimbene, 471 F.2d 16, 17 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2146, 36 L.Ed.2d 686 (1973), the usual factors to be evaluated in determining whether the defendant has been denied his Sixth Amendment right to a speedy trial are clearly delineated in Barker v. Wingo, supra. Under Barker, the four factors which should generally be considered are: (1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant has asserted his right to a speedy trial; and (4) the prejudice resulting to the defendant from the delay. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. These four factors are the primary components of a “balancing test [which] necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Id. at 530, 92 S.Ct. at 2192. No one “of the four factors [is, however,] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Id. at 533, 92 S.Ct. at 2193; United States v. Vispi, supra at 333. Rather, and perhaps most critical for purposes of the case presently before us, the four factors “must be considered together with such other circumstances as may be relevant.” Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193 (emphasis supplied); accord, United States v. Vispi, supra at 333. We believe that the case before us now presents such an additional relevant circumstance, namely, the acknowledged violation of the Speedy Trial Act, which, in view of the closeness of the case here, we consider to be pivotal. The length of the delay here — 34 months — is, indeed, disturbing and, although, as emphasized in Barker v. Wingo, supra, 407 U.S. at 521, 530-31, 92 S.Ct. 2182 and demonstrated in our own cases, see United States v. Vispi, supra; United States v. Roberts, supra, length alone is not dispositive, the length of the delay here does unquestionably “trigger,” see Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182, our review of the three other factors" }, { "docid": "8383698", "title": "", "text": "remedies regarding the speedy trial claim, Morris petitioned the federal district court seeking habeas corpus relief. The matter was referred to a United States magistrate who reviewed the record and recommended that the petition be denied. The district judge concurred in this recommendation and dismissed the petition without holding an evidentiary hearing. On appeal Morris again raises the claim that he was denied his sixth amendment right to a speedy trial. Additionally, he asserts that the district court erred in not granting him an evidentiary hearing. I. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), the Supreme Court discussed in some detail the manner in which a court must evaluate a speedy trial claim. The Court recognized that each case needs to be approached on an ad hoc basis, and it identified four factors to be utilized by the courts to make a balancing test in each instance: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Footnote omitted.) The first factor, length of delay, acts as a triggering mechanism for further inquiry into the speedy trial allegation. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182; Arrant v. Wainwright, 468 F.2d 677, 680 (5th Cir. 1972), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973). Here the gap of approximately 15V2 months from indictment to trial must be considered presumptively prejudicial so as to require further consideration of Morris’ claim. However, we do not consider the delay so inordinately lengthy as to automatically weigh heavily against the state. See Barker v. Wingo, supra, (five-year delay — no denial of speedy trial); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (19-month delay—no denial of speedy trial); United States v. Roemer, 514 F.2d 1377 (2d Cir. 1975) (56-month delay—no denial of speedy trial); United States v. Skillman, 442 F.2d 542, 557 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971) (20-month delay — no denial of" } ]

[ { "docid": "5425117", "title": "", "text": "remembered that the plaintiff’s supervisory position did not tie him to one spot in order to perform his work nor was there evidence that he had to get specific permission to leave the work site. He returned from lunch at 1:00 p. m. and then decided to see Mr. Gorsline at his site some mile away. If he had occasion to see Mr. Gorsline about a construction problem it would scarcely have been contended that he was not acting in the course of his employment just because the site was different from the one wheré his ordinary duties lay. Similarly, since the activities of the bowling league were activities within the scope of plaintiff’s employment, why should a conference with the other superintendent be differently treated? The statute creates a presumption that a claim filed under it comes within the provision of the Act unless there is “substantial evidence to the contrary.” Title 33 U.S.C.A. § 920. The statute creates this presumption for the benefit of the claimant. Accordingly if disability arises in the course of employment it must be presumed to have arisen therefrom unless there is substantial evidence to the contrary. Travelers Ins. Co. v. Donovan, 1955, 95 U.S.App.D.C. 331, 221 F.2d 886. We must recognize that “Workmen’s compensation is not confined by common-law conceptions of scope of employment. * * * The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. * * * Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, 1951, 340 U.S. 504, 506, 71 S.Ct. 470, 471, 95 L.Ed. 483. Injuries suffered by an employee in the course of travel raise questions as to whether the injuries are incurred in the course of the employment. Judge Cardozo, speaking for the New York Court of Appeals, has well expressed the test that" } ]

[ { "docid": "6127432", "title": "", "text": "time later by his fellow-employee [;] that he died at 1:30 p. m. of coronary thrombosis * * *.” The Deputy Commissioner concluded that death “was not caused by an injury arising out of and in the course of the employment.” The finding that coronary thrombosis was the cause of death is amply supported by the evidence. But the conclusion of the Deputy Commissioner does not appear in a context of supporting findings which enables us adequately to pass upon the correctness of the denial of an award. I. Events Preceding and Surrounding the Attack: The conclusion that death was not caused by an injury arising out of and in the course of employment might mean that the pain suffered at the end of the lunch period was not caused by an injury within the meaning of the Act. Or it could mean that though the attack was an injury it did not occur in the course of employment. It could also mean that the injury did not arise out of the employment or, in any event, did not cause the death. A different result might be required on the evidence, dependent upon which meaning should be deemed the correct one. For example, if there was an injury incident to the chest pain obviously it arose in the course of employment. The only question then would be whether it arose out of the employment. We have held that the occurrence of an injury in the course of employment strengthens the presumption that it arises out of the employment, with doubts resolved in the claimant’s favor. Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 54, 112 F.2d 11, 13, certiorari denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415. And we have also held that where death in the course of employment is due to an illness which has taken a sudden and unusual turn for the worse, not shown by substantial evidence to be unrelated to the employment, the statutory presumption makes the death compensable. Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435, certiorari denied, 346" }, { "docid": "243686", "title": "", "text": "a guess to say which was the most likely; that the best he could do was to say that it was probably the result of one of the three factors mentioned. This testimony therefore would not support a finding that the illness itself was due to an acute paranoia not associated with his work, much less that it was not aggravated or agitated by his work. . That the presumption applies to proceedings under the District of Columbia provisions, see Cardillo v. Liberty Mutual Ins. Co., 1947, 330 U.S. 469, 474, 67 S.Ct. 801, 91 L.Ed. 1028, where the reference to the presumption was with respect to jurisdiction. . “In any proceeding for the enforcement of a claim for compensation * * * it shall be presumed, in the absence of substantial evidence to the contrary * * * (d) That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.” § 20(d), 44 Stat. 1436 (1927), 33 U.S.C.A. § 920(d). . Since the evidence does not support a finding of absence of aggravation by the employment, and since the presumption and evidence require the contrary conclusion, it follows that the death arose out of and in the course of the employment. But we point out also that, when deceased met his death he was in and about Wakefield on Ills employer's business, was subject to his instructions, and was on continuous duty, “ * * * Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481 467 S.Ct. 801, 808, 91 L.Ed. 1028] ; Matter of Waters v. Taylor Co., 218 NY. 248, 251, 112 N.E. 727, 728. The tost of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or" }, { "docid": "14753429", "title": "", "text": "an employee, but only if the disability ... results from an injury .... ” 33 U.S.C. § 903(a). “Disability” is defined, in relevant part, as an “incapacity because of injury.” 33 U.S.C. § 902(10). “Injury” is defined as an “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury .... ” 33 U.S.C. § 902(2). An employer must “furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.” 33 U.S.C. § 907(a). The Supreme Court has determined that the phrases “arising out of’ and “in the course of’ are separate requirements to establish an injury: “the former refers to injury causation; the latter refers to the time, place, and circumstances of the injury.” See U.S. Industries/Federal Sheet Metal, Inc. v. Director, Office of Workers’ Compensation Programs, 455 U.S. 608, 615, 102 S.Ct. 1312, 71 L.Ed.2d 495 (1982). “Not only must the injury have been caused by the employment, it also must have arisen during the employment.” Id. To make a claim for compensation under the LHWCA, an injured employee “must timely file a claim with the Deputy Commissioner.” Id. at 613, 102 S.Ct. 1312. The claimant must “timely give the Deputy Commissioner and his employer notice of his injury,” and “ ‘[s]uch notice ... shall contain ... a statement of the time, place, nature, and cause of the injury.’ ” Id. (quoting 33 U.S.C. § 912(b)). The presumption of causation that the ALJ applied in this case is set out in Section 20(a) of the LHWCA. It states that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — ... [t]hat the claim comes within the provisions of this chapter.” 33 U.S.C. § 920(a). To invoke the presumption, a claimant must make a" }, { "docid": "16931470", "title": "", "text": "went out of its way” to point out, that the death arose out of and in the course of employment. In reinstating the award, set aside by the court below, the Supreme Court held: “Workmen’s compensation is not confined by common-law conceptions of scope of employment, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481, [67 S.Ct. 801, 808, 91 L.Ed. 1028]; Matter of Waters v. William J. Taylor Co., 218 N.Y. 248, 251, 112 N.E. 727, 728, L.R.A.1917A, 347. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142 [(Eng.) [1919], A.C. 127, 142 Ann.Cas.1917D, 188-H.L.]. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. at 506, 71 S.Ct. at 471, 95 L. Ed. 486. (Emphasis added.) Guam was also the place of employment in Self v. Hanson. Mrs. Self was injured while in a parked automobile with a friend at a time and place which the Court described as leading to “some cynicism about the parking”. In upholding the Deputy Commissioner’s award, the court observed: “[T]his is a case where the scope of employment should be construed in favor of the workman * * *. Obviously, recreation was considered a necessity for MK-PK employees in Guam * * [In] concluding] that Mrs. Self’s injury was one ‘arising out of and in the course of employment * * * [we] consider our decision consistent with the liberal purpose of the act.” In Hastorf-Nettles, Inc. v. Pillsbury, 9 Cir. 1953, 203 F.2d 641, the employee was injured while returning to his base from a Labor Day recreation in Anchorage, Alaska. In upholding the compensation award the court stated: “The Deputy Commissioner undoubtedly had the exclusive and unreviewable right to draw inferences from the unique character and isolated place" }, { "docid": "22688187", "title": "", "text": "Ninth Circuit reversed. It concluded that “The lethal currents were not a part of the recreational facilities supplied by the employer and the swimming in them for the rescue of the unknown man was not recreation. It was an act entirely disconnected from any use for which the recreational camp was provided and not in the course of Valak’s employment.” 182 F. 2d 772, 773. We granted certiorari, 340 U. S. 849, because the case brought into question judicial review of awards under the Longshoremen’s Act in light of the Administrative Procedure Act. The Longshoremen’s and Harbor Workers’ Act authorizes payment of compensation for “accidental injury or death arising out of and in the course of employment.” § 2 (2), 44 Stat. 1425, 33 U. S. C. § 902 (2). As we read its opinion the Court of Appeals entertained the view that this standard precluded an award for injuries incurred in an attempt to rescue persons not known to be in the employer’s service, undertaken in forbidden waters outside the employer’s premises. We think this is too restricted an interpretation of the Act. Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 481; Matter of Waters v. Taylor Co., 218 N. Y. 248, 251, 112 N. E. 727, 728. The test of re covery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.” Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, 17," }, { "docid": "909715", "title": "", "text": "Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1335 (9th Cir. 1978), cert. denied, 440 U.S. 911, 99 S.Ct. 1223, 59 L.Ed.2d 459 (1979); see Wheatley v. Adler, supra, 407 F.2d at 312 n.11 (“ ‘[T]he cases almost invariably decide that the fact that the injury would not have resulted but for the pre-existing disease, or might just as well have been caused by a similar strain at home or at recreation, are both immaterial.’ ”) Thus, the only issue in this case is whether or not the aggravation of Hensley’s psoriasis, which occurred during July and August of 1977 when potholes and construction on his route made driving particularly stressful, arose even in part “out of and in the course of” his employment. 33 U.S.C. § 902(2). This statutory language does not require “a causal relation between the nature of employment of the injured person and the accident.. .. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special’ danger out of which injury arose.” .. . [The line is drawn] only at cases where an employee [has] become “so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” O’Keeffe v. Smith, Hinchman & Grylls Assoc., Inc., supra, 380 U.S. at 362, 85 S.Ct. at 1014 (emphasis supplied). See, e. g., Mitchell v. Woodworth, 449 F.2d 1097 (D.C.Cir. 1971) (denial of compensation reversed despite apparent absence of evidence that death arose from any particularly unusual work related stress); Butler v. District Parking Management Co., 363 F.2d 682 (D.C.Cir.1966) (denial of compensation re versed despite apparent absence of any particularized causal theory connecting claimant’s mental breakdown with his 20 years of service as a parking lot attendant); Robinson v. Bradshaw, supra (denial of death benefits reversed for failure to apply presumption to issue of work-relatedness in case where deceased suddenly became obsessed with idea that he was being pursued by mob, resulting in his confinement in jail, where he was" }, { "docid": "1900533", "title": "", "text": "em (ployee is engaged in his usual and ordinary work. The seizure, whether it be of heart, or the result of sudden paralysis ■or even of epilepsy may produce an injury which becomes compensable. Where an employee holding a hot water hose fell during an epileptic fit and suffered burns ■inflicted by the instrumentality being utilized in his employment, this court ■concluded the injury arose out of his employment. The work must bring “the worker within the orbit of whatever dangers the ■environment affords.” Such was the principle upon which this court sustained the Deputy Commissioner in his finding -of compensability when one Brosnan, an employee in the course of his employment was required to use the city streets where he fell and was injured “by reason of the risks incident to the streets.” The Supreme Court has emphasized that the test of the statute, just as we have construed it, does not lie in a causal relation between the nature of the employment of the injured person and the accident. Tort principles or common-law concepts of the scope of employment are not controlling. What does matter is “that the ‘obligations or conditions’ of employment [must] create the ‘zone of special danger’ out of which the injury arose.” Here the Deputy Commissioner drew the inference from all of the facts as found that the injury suffered by the appellant’s decedent did not arise out of his employment. Accordingly he concluded on a record which supports him that the claim was not compensable. Since “there is factual and legal support for that conclusion, our task is at an end.” As did the District Court, we are bound to Affirm. . 44 Stat. 1424, 33 U.S.C. § 901 et seq., as made applicable to tbe District of Columbia, 45 Stat. 600, D.C.Code § 36-501 (1961). . 33 U.S.C. § 920 (1958). . Cf. Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). . In addition from expert medical testimony the Deputy Commissioner was enabled to understand the nature of the convulsive seizure which precipitated the decedent’s leap which ended in his" }, { "docid": "16931469", "title": "", "text": "“Both sides concede that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237 [Ch. 324], 5 U.S.C.A. § 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 [457] [71 S.Ct. 456, 95 L.Ed. 456], It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole.” 340 U.S. at 507-508, 71 S.Ct. at 472, 95 L.Ed. 487. (Emphasis added.) In O’Leary v. Brown-Pacific-Maxon, Inc., the injured employee was on Guam, an island far more civilized than Grand Turk. The employee was off-duty, had sought recreation, and was waiting for transportation back to his base from a recreation trip when he dived into dangerous waters, where swimming was prohibited, in order to rescue two employees of another employer. He drowned. The Deputy Commissioner made a finding of “fact”, as the Supreme Court “seemingly went out of its way” to point out, that the death arose out of and in the course of employment. In reinstating the award, set aside by the court below, the Supreme Court held: “Workmen’s compensation is not confined by common-law conceptions of scope of employment, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481, [67 S.Ct. 801, 808, 91 L.Ed. 1028]; Matter of Waters v. William J. Taylor Co., 218 N.Y. 248, 251, 112 N.E. 727, 728, L.R.A.1917A, 347. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142 [(Eng.) [1919], A.C. 127, 142 Ann.Cas.1917D, 188-H.L.]. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. at 506, 71 S.Ct. at 471, 95" }, { "docid": "1900534", "title": "", "text": "concepts of the scope of employment are not controlling. What does matter is “that the ‘obligations or conditions’ of employment [must] create the ‘zone of special danger’ out of which the injury arose.” Here the Deputy Commissioner drew the inference from all of the facts as found that the injury suffered by the appellant’s decedent did not arise out of his employment. Accordingly he concluded on a record which supports him that the claim was not compensable. Since “there is factual and legal support for that conclusion, our task is at an end.” As did the District Court, we are bound to Affirm. . 44 Stat. 1424, 33 U.S.C. § 901 et seq., as made applicable to tbe District of Columbia, 45 Stat. 600, D.C.Code § 36-501 (1961). . 33 U.S.C. § 920 (1958). . Cf. Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). . In addition from expert medical testimony the Deputy Commissioner was enabled to understand the nature of the convulsive seizure which precipitated the decedent’s leap which ended in his striking his head on the concrete floor. . Commercial Casualty Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678 (1945). . Hancock v. Einbinder, 114 U.S.App.D.C. 67, 71, 310 F.2d 872, 876 (1962) where we rejected the “notion that an injury is not compensable unless it resulted from the performance of unusual work.\" (Emphasis added.) . General Accident Fire & Life Assur. Corp. v. Donovan, 102 U.S.App.D.C. 204, 251 F.2d 915 (1958). . President and Directors of Georgetown College v. Stone, 61 App.D.C. 200, 59 F.2d 875 (1932). . Ibid.; compare Employers Mut. L. Ins. Co. of Wisconsin v. Industrial Acc. Com’n, (Sup.Ct.Calif. en banc), 41 Cal.2d 676, 263 P.2d 4 (1953). . Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 55, 112 F.2d 11, 14, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940). . See New Amsterdam Casualty Co. v. Hoage, 61 App.D.C. 306, 307, 62 F.2d 468, 469 (1932) where the court said: “From the record it appears probable that Brosnan’s fall was occasioned" }, { "docid": "12915212", "title": "", "text": "912 (1964). The District Court sustained the Deputy Commissioner’s findings and granted Appellees’ motion for summary judgment. Two doctors testified, one an internist and the other a psychiatrist. The internist expressed an opinion that Appellant’s illness arose out of his employment as a parking lot attendant; the psychiatrist testified that he could not say that Appellant’s illness was caused by his employment, and that “Since we do not know the cause, I would have to say that I cannot answer the question whether there is a causal relation.” Section 20 of ■ the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1436, 33 U.S.C. § 920 (1964), provides: In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary— (a) That the claim comes within the provisions of this Act. (b) That sufficient notice of such claim has been given. * * * [Emphasis added.] This provision places the burden on the employer to go forward with evidence to meet the presumption that injury or illness occurring during employment was caused by that employment. Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935). The employer offered no substantial evidence that Appellant’s injury was not work-related and hence has not met the burden imposed by the statute. Cf. Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 221 F.2d 886 (1955); Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). As to the statutory notice requirement, Section 12(d), 33 U.S.C. § 912(d), provides: Failure to give such notice shall not bar any claim under this Act (1) if the employer (or his agent in charge of the business in the place where the injury occurred) * * * had knowledge of the injury or death and the deputy commissioner determines that the employer * * * has not been prejudiced by failure to give such notice * * The Deputy Commissioner found that “the employer did not have knowledge of the alleged injury or illness,” but the undisputed testimony of" }, { "docid": "14753443", "title": "", "text": "$6,082.31 for his work before the BRB. REAVLEY, Circuit Judge, concurring: I concur in the judgment of the majority but disagree with the conclusion that the presumption created by § 20(a) of the Longshore and Harbor Workers Compensation Act (LHWCA) is inapplicable to Dover’s alleged heart condition because Dover’s claim was limited to a back injury and the claim did not reference a work-related heart injury. I would apply the presumption as long as Dover presented sufficient evidence to establish a prima facie case, but because Dover did not present such a case on the current record I concur. The § 20(a) presumption provides that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — ... [t]hat the claim comes within the provisions of this chapter.” 33 U.S.C. § 920(a). “A prima facie ‘claim for compensation’ to which the statutory presumption refers, must at least allege an injury that arose in the course of employment as well as out of employment.” U.S. Industries/Federal Sheet Metal, Inc. v. Dir., OWCP, 455 U.S. 608, 615-16, 102 S.Ct. 1312, 1318, 71 L.Ed.2d 495 (1982). Dover claimed that he suffered a work-related back injury, and he testified that the steroid treatment for his back resulted in his heart condition. We have recognized that “ ‘[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.’” Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1051 (5th Cir.1983) (quoting 1 A. Larson, The Law of WORKMEN’S Compensation § 1300 (1980)). Because Dover’s claimed back injury indisputably arose out of his employment, any injury resulting from treatment for that injury should also be presumed to have arisen out of the employment and the primary injury. See Mattera v. M/V MARY ANTOINETTE, 20 BRBS 43 (1987) (back injury sustained during vocational testing following a" }, { "docid": "22688188", "title": "", "text": "this is too restricted an interpretation of the Act. Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 481; Matter of Waters v. Taylor Co., 218 N. Y. 248, 251, 112 N. E. 727, 728. The test of re covery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.” Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, 17, 164 N. E. 726, 727; Puttkammer v. Industrial Comm’n, 371 Ill. 497, 21 N. E. 2d 575. This is not to say that there are not cases “where an employee, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” Matter of Waters v. Taylor Co., 218 N. Y. at 252, 112 N. E. at 728. We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own. The Deputy Commissioner treated the question whether the particular rescue attempt described by the evidence was one of the class covered by the Act as a question of “fact.” Doing so only serves to illustrate once more the variety of ascertainments covered by the blanket" }, { "docid": "6127433", "title": "", "text": "any event, did not cause the death. A different result might be required on the evidence, dependent upon which meaning should be deemed the correct one. For example, if there was an injury incident to the chest pain obviously it arose in the course of employment. The only question then would be whether it arose out of the employment. We have held that the occurrence of an injury in the course of employment strengthens the presumption that it arises out of the employment, with doubts resolved in the claimant’s favor. Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 54, 112 F.2d 11, 13, certiorari denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415. And we have also held that where death in the course of employment is due to an illness which has taken a sudden and unusual turn for the worse, not shown by substantial evidence to be unrelated to the employment, the statutory presumption makes the death compensable. Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435, certiorari denied, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400. We hesitate to apply these principles to the case before us, or, on the other hand, to' reject their application, in the absence of an expression of view by the Deputy Commissioner as to whether the attack was an injury, if so the cause of the attack, the relation of Vendemia’s work to the attack, the relation of the attack to his death, the existence of a weakened or diseased condition before the attack and, if so the relation in that event of the work to the attack. Should the Deputy Commissioner, however, not be able in his appraisal of the evidence to make findings of this character it would be helpful for his order so to reflect, so that our review would be informed by his position. II. The Post-Attack Events: The uncontroverted medical testimony was to the effect that the noon-hour complaints of pain indicated the presence of a heart condition. This gave rise to an issue of fact as to whether the employee performed" }, { "docid": "22773626", "title": "", "text": "ter it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter.” § 20 (a), 33 U. S. C. §920 (a). In this case, the Deputy Commissioner, applying the Brown-Pacific-Maxon standard to the undisputed facts, concluded “that the accident and the subsequent death of the decedent arose out of and in the course of employment.” 222 F. Supp. 4, 6. The District Court, likewise applying the Brown-Padfic-Maxon standard, held “that the Deputy Commissioner was correct in his finding that the conditions of the deceased’s employment created a zone where the deceased Ecker had to seek recreation under exacting and unconventional conditions and that therefore the accident and death of the decedent arose out of and in the course of employment.” 222 F. Supp., at 9. We agree that the District Court correctly affirmed the finding of the Deputy Commissioner. While this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding that the decedent’s death, in a zone of danger, arose out of and in the course of his employment is irrational or without substantial evidence on the record as a whole. The decedent was hired to work in the exacting and unconventional conditions of Korea. His transportation over and back was to be at the employer’s expense, and while there he was considered to be working on a 365-day-per-year basis, subject to call at the job site at any time, and quite often he worked Saturdays and Sundays and at other times outside the working day. The employer considered decedent and all other employees at this hazardous overseas base to be “in the course of regular occupation from the time they leave the United States until their return.” Finally, the employer provided neither housing nor recreational activities for its employees, but expected them to live, while necessarily in the country to perform its work, under the exacting and dangerous conditions of Korea. The employer paid decedent’s rent and provided him with a per diem expense" }, { "docid": "22773631", "title": "", "text": "order to obtain it the three crossed the lake in a small aluminum boat to a sandy part of the shore. There they filled the boat with a load of sand, intending to transport it back to the house. The return trip, however, put Archimedes’ Principle to the test; in the middle of the lake the boat capsized and sank. Two of the three men drowned, including Ecker. The Longshoremen’s and Harbor Workers’ Compensation Act, as extended by the Defense Bases Act, provides workmen’s compensation for any “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out- of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.” 33 U. S. C. § 902 (2). The Court holds, per curiam, that Ecker died in the course of his employment. I see no meaningful interpretation of the statute which will support this result except a rule that any decision made by a Deputy Commissioner must be upheld (compare Rogers v. Missouri Pac. R. Co., 352 U. S. 500). That interpretation, although meaningful, is unsupportable. O’Leary v. Brown-Pacific-Maxon., Inc., 340 U. S. 504, relied upon by the Court, did not establish such a rule. The Court there upheld a compensation award arising from the accidental death of an employee of a government contractor on the island of Guam. The employer maintained for its employees a recreation center near the shoreline along which ran a very dangerous channel. After spending the afternoon at the employer’s recreation center, and while waiting for the employer’s bus, the employee heard cries for help from two men in trouble in the channel. He drowned in his attempt to rescue them. Mr. Justice Frankfurter, writing for the Court, stated the standard of coverage as: “All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” 340 U. S., at" }, { "docid": "22773625", "title": "", "text": "between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” Id., at 507. And, borrowing from language in Matter of Waters v. Taylor Co., 218 N. Y. 248, 252, 112 N. E. 727, 728, the Court in Brown-Pacific-Maxon drew the line only at cases where an employee had become “so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” 340 U. S., at 507. This standard is in accord with the humanitarian nature of the Act as exemplified by the statutory command that “[i]n any proceeding for the enforcement of a claim for compensation under this chap ter it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter.” § 20 (a), 33 U. S. C. §920 (a). In this case, the Deputy Commissioner, applying the Brown-Pacific-Maxon standard to the undisputed facts, concluded “that the accident and the subsequent death of the decedent arose out of and in the course of employment.” 222 F. Supp. 4, 6. The District Court, likewise applying the Brown-Padfic-Maxon standard, held “that the Deputy Commissioner was correct in his finding that the conditions of the deceased’s employment created a zone where the deceased Ecker had to seek recreation under exacting and unconventional conditions and that therefore the accident and death of the decedent arose out of and in the course of employment.” 222 F. Supp., at 9. We agree that the District Court correctly affirmed the finding of the Deputy Commissioner. While this Court may not have reached the same conclusion as the Deputy Commissioner, it cannot be said that his holding" }, { "docid": "3471834", "title": "", "text": "of Binghamton, 218 A.D. 451, 218 N.Y.S. 355, 357 (N.Y.App.Div.1926) (finding that an employee was injured in the line of duty and therefore within the scope of his employment); Plouffe v. American Hard Rubber Co., 211 A.D. 298, 207 N.Y.S. 373, 375 (N.Y.App.Div.1925) (finding that a worker stepped out the scope of his employment when he engaged in a personal fight with a co-worker); see also O’Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359, 362-63, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965) (examining the BRB’s determination that the injury arose out of the scope or course of employment). The Fifth Circuit has recently discussed the reach of the course or scope of employment for the DBA. In Jones v. Halliburton, the Fifth Circuit reiterated that the course or scope of employment aspect of the statute was intended to be very broad and that “ ‘[t]he test of recovery is not a causal relationship between the nature of employment of the injured person and the accident .... All that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose.”’ 583 F.3d 228, 238 (5th Cir.2009) (quoting O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 506-07, 71 S.Ct. 470, 95 L.Ed. 483 (1951)). It is not in dispute here that the plaintiffs were acting within the course and scope of their employment. Moreover, if Congress had meant the broader concept of “arising from or in the course of his employment,” it would have used those very words like it did a few sentences earlier in the same section. And, this determination is different from the question of whether they were injured because of their employment. Instead, for determining the willful act of a third party, the court determines an injury using the much narrower phrase, “because of his employment.” Unlike “out of and in the course of employment,” the phrase “because of his employment” has received very little attention. Cases in New York during the 1920’s focus almost entirely on the inquiry of whether the injury was an accident arising" }, { "docid": "18442869", "title": "", "text": "under discussion was shown as a matter of law to have occurred “in the course of employment.” II The next question on our record arises from the requirement that the death be one “arising out of” that employment. Some have seemed to think that a claim is compensable only if the “accidental injury or death” specified in the Act shall have been caused by the employment. Acceptance of so narrow a view, that of actual “causation,” would seem unduly to limit a possible basis for a claim “arising out of” the employment, for the element of occupational hazard must be recognized. On this very point and in some situations a much broader scope must be accorded to the language as the Supreme Court has instructed us. It is enough, we have been told, “that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.” Ill The Act, 33 U.S.C. § 920(a) (1964), provides: “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary— “(a) That the claim comes within the provisions of this chapter.” The effect to be given to the presumption so prescribed goes directly to the core of this case. Wheatley, before undertaking actual manual labor, left the garage and stepped outdoors. He had a crippled leg. “The bathroom is way in the back of the terminal,” an eyewitness explained, as he testified that he had seen Wheatley urinating in an area between two trucks in the yard, apparently only 50 feet or so from the garage. To accomplish his purpose, a trip across the yard and up a flight of steps, which might have presented no problem at all to an able-bodied fellow employee, became a condition of employment for the partially crippled Wheatley, giving rise to a “zone of special danger,” an occupational hazard. Within a matter of minutes, Wheatley collapsed and died. The Deputy Commissioner seems to have given no consideration whatever to this aspect of the “arising out of”" }, { "docid": "243687", "title": "", "text": "does not support a finding of absence of aggravation by the employment, and since the presumption and evidence require the contrary conclusion, it follows that the death arose out of and in the course of the employment. But we point out also that, when deceased met his death he was in and about Wakefield on Ills employer's business, was subject to his instructions, and was on continuous duty, “ * * * Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 481 467 S.Ct. 801, 808, 91 L.Ed. 1028] ; Matter of Waters v. Taylor Co., 218 NY. 248, 251, 112 N.E. 727, 728. The tost of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose. Ibid. * * * ” O’Leary v. Brown-Pacific-Maxon, 340 U.S. at pages 506-507, 71 S.Ct. 470, 471, 95 L.Ed. 483." }, { "docid": "16261317", "title": "", "text": "Commissioner’s finding of fact as to the work Hancock had done just prior to his death was shown by the whole record to be inaccurate in that it failed to include his handling of the heavy mail bags very soon before his collapse. We further conclude that the medical evidence considered as a whole furnishes no basis whatever for the Deputy Commissioner’s finding “that the acute congestive heart failure which caused the employee’s death * * * did not arise out of and in the course of the employment or was it otherwise related thereto.” The testimony of the three medical experts was exactly to the contrary. As we have said, Hancock was suffering from angina pectoris, which had been diagnosed about four months before he died. His death, which the experts were unanimous in saying- arose out of or in the course of his employment, was due to an “accidental injury” within the meaning of the statute. Hoage v. Royal Indemnity Co., 67 App.D.C. 142, 90 F. 2d 387 (1937). The Deputy Commissioner’s questioning of witnesses and certain passages in his compensation order emphasized the fact “that the employee at the time of his death was performing duties consistent with the normal part of his job.” If his ultimate decision was based on the notion that an injury is not compensable unless it resulted from the performance of unusual work, he was mistaken. We said in Commercial Casualty Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678 (1935): “ * * * It has been held a number of times, and we think correctly, that an accidental injury may occur notwithstanding the injured is then engaged in his usual and ordinary work * * *. It is enough if something unexpectedly goes wrong within the human frame. * * * ” The statute provides that “[I]t shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of [this Act].” 44 Stat.1436, 33 U.S.C. § 920. We said in Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 219," } ]

[ { "docid": "16096277", "title": "", "text": "failure to submit, on a timely basis, a “separate, short and concise statement of the material facts” as required by Local Civil Rule 56.1, either in support of their motion or in opposition to Cello’s motion. Defendants did not submit a Rule 56.1statement until two months after they had cross-moved for summary judgment and a month and a half after Cello had filed reply papers. Cello objects to defendants’ late-filed 56.1 statement and argues that it should be rejected and the facts contained in Cello’s 56.1 statement deemed admitted. Cello’s objection to defendants’ late Rule 56.1statement is overruled. Defendants did submit, on a timely basis, declarations and other evidentiary materials that challenged Cello’s factual assertions, and they also submitted a timely memorandum of law. The facts contained in their late Rule 56.1statement do not contradict the facts asserted in their earlier filed declarations and other materials. Hence, there is no prejudice to Cello if defendants’ Rule 56.1 statement is accepted. On the other hand, defendants will be seriously prejudiced if the facts asserted in Cello’s Rule 56.1 statement are deemed admitted merely because their attorneys inadvertently neglected to file a Rule 56.1 statement when they filed their initial papers. See Citibank N.A. v. Outdoor Resorts of Am., Inc., No. 91 Civ. 1407, 1992 WL 162926 (S.D.N.Y. June 29, 1992) (holding that granting summary judgment in favor of plaintiff on basis of defendants’ failure to submit a Rule 56.1 statement was unwarranted where defendants submitted papers that made defendants’ basis for opposing summary judgment sufficiently clear); see also Abu-Nassar v. Elders Futures Inc., No. 88 Civ. 7906, 1994 WL 445638 (S.D.N.Y. Aug.17, 1994) (holding that the court’s “striking” of an untimely [56.1] statement is discretionary). Accordingly, I accept Storey’s belatedly filed Rule 56.1 statement and I have considered it in deciding these motions. B. Personal Jurisdiction Defendants’ motion for summary judgment is denied to the extent they seek to dismiss the complaint for lack of personal jurisdiction, for I conclude that this Court has personal jurisdiction over Storey pursuant to the New York long-arm statute. In considering the issue of personal" } ]

[ { "docid": "4996088", "title": "", "text": "in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis in original); see Ello v. Singh, 531 F.Supp.2d 552, 562 (S.D.N.Y.2007). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff complains are insufficient as a matter of law. See Martin v. N.Y. State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978). Summary judgment is appropriate when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. See Fed. R. Civ. P 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether to grant summary judgment, the Court resolves all ambiguities and draws all permissible factual inferences in favor of the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. II. Local Rule 56.1 Plaintiffs argue that defendants’ motion for summary judgment should be summarily denied, because defendants did not serve or file a separate, short and concise statement, in numbered paragraphs, of the undisputed material facts pursuant to S.D.N.Y. Local Civil Rule 56.1. (Pis. Mem. Opp. Mot. Dismiss at 1.) According to the relevant part of the Rule, which is applicable in the United States District Courts for the Eastern and Southern Districts of New York: “[u]pon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.” S.D.N.Y. LoCal Civ. R. 56.1(a) (emphasis in original). “A district court has broad discretion to determine" }, { "docid": "8955542", "title": "", "text": "a showing that the defendants actions were pretext for impermissible discrimination. Moreover, defendants argue that the proper mechanism for a due process claim is an Article 78 proceeding in state court. We agree and thus conclude that the amendment would be futile for the additional reason that Hartley would not be permitted to raise his due process challenge in this forum. See, e.g., Behrend v. Klein, No. 04 Civ. 5413(NGG)(CLP), 04 Civ. 5414(NGG)(CLP), 2010 WL 627696, at *8 (E.D.N.Y. Feb. 22, 2010); Piccoli v. Yonkers Bd. of Educ., No. 08 Civ. 8344(CS), 2009 WL 4794130, at *5 (S.D.N.Y. Dec. 11, 2009); Felton v. Katonah Lewisboro Sch. Dist., No. 08 Civ. 9340(SCR), 2009 WL 2223853, at *6-7 (S.D.N.Y. July 27, 2009). This is true even where, as here, a plaintiff has failed to avail himself of an Article 78 proceeding. Piccoli 2009 WL 4794130, at *5. CONCLUSION For the foregoing reasons, defendants’ motion for summary judgment is granted and plaintiffs cross motion for summary judgment and cross motion to amend the pleadings are denied. . The background is derived from Defendants’ Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1, filed July 12, 2010 (\"R. 56.1”), the exhibits annexed thereto (\"D. Ex.”), Plaintiff’s Response to Defense 56.1 Statement, filed October 13, 2010 (\"Counter R. 56.1”), and the exhibits annexed thereto (\"P. Ex.”). Pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (\"Local Rules”), ”[t]he papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party.” Local Rule 56.1(b). Additionally, \"each statement controverting any statement of material fact[ ] must be followed by citation to evidence which would be admissible!] as required by Federal Rule of Civil Procedure 56(e).” Local Rule 56.1(d). Where a party opposing a motion for summary judgment fails to specifically controvert a statement of material fact, the statement is \"deemed to be admitted for the purposes of the motion.” Local Rule 56.1(c); see also Major League Baseball Props., Inc." }, { "docid": "14888626", "title": "", "text": "U.S.C. §§ 1654, 2071; Fed. R. Civ. Pro. 83). Pursuant to Local Civil Rule 56.1(a) adopted in this District, a motion for summary judgment must have annexed to it a short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no issue to be tried. Local Civil Rule 56.1(a). Here, defendants, as the moving party, included such a statement with their motion for summary judgment. Defendants’ statement contains eighty-two separate paragraphs with citations to the record. In addition, Rule 56.1(b) imposes a parallel mandate on the party opposing summary judgment. “The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party.” Local Civil Rule 56.1(b) (emphasis added). Counsel for plaintiff has filed an affidavit in opposition (the “Sacks Affidavit”) which contains a desultory assortment of factual allegations. But these allegations — contained in thirty-three numbered paragraphs — merely recite the asserted facts underlying plaintiffs case. Counsel for plaintiff has not submitted the statement in opposition required by Rule 56.1(b). In that circumstance, Local Rule 56.1(c) provides as follows: Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. Local Civil Rule 56.1(c) (emphasis added); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). (“If the opposing party then fails to controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed admitted.”); Gubitosi v. Kapica, 154 F.3d 30, 31 (2d Cir.1998) (same). However, “[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1(a) statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.” Holtz" }, { "docid": "11749870", "title": "", "text": "Rule 56.1 provides that a party moving for summary judgment must include a \"separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.” Royal’s Local Rule 56.1 statement is carefully annotated and refers to declarations, affidavits, and exhibits also submitted with the motion. Accordingly, most of the citations in the text are to Royal's Local 56.1 statement. As discussed in greater detail below, Burke did not submit a Local Rule 56.1 statement. Because Burke is proceeding pro se, I will construe Burke’s Memorandum of Law, submitted in opposition to defendant’s motion for summary judgment, as meeting the requirements of the Rule. Any factual assertions by the plaintiff in contradiction to defendant's Local Rule 56.1 Statement will be noted. . Further reductions in work at the Jericho office led to McNally’s termination in November 1997. Def.’s Rule 56.1 Stmt, at ¶ 92. . As a pro se plaintiff, Burke was apprised of his right and responsibility to conduct discovery at various court conferences. See, e.g., Docket Entry 19 (Feb. 27, 1998) (advising plaintiff to proceed with interrogatories, document requests, or depositions upon written questions and discussing the impending summary judgment motion); Docket Entry 22 (Apr. 30, 1998); Docket Entry 27 (July 10, 1998). From a review of the court file, it appears that the only discovery conducted by Burke was a deposition upon written questions of Koloski. . The McDonnell Douglas framework also applies to claims of discrimination under the New York Human Rights Law, N.Y.Exec.Law § 296. See Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir.1992); Ortega v. New York City Off-Track Betting Corp., No. 97 CV 7582, 1998 WL 355416 at *3 n. 2 (S.D.N.Y.1998). Accordingly, I will not discuss Executive Law § 296 separately. . The recent decision in Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), the first decision from the Supreme Court interpreting the definition of disability, supports the conclusion that diabetes is a disability under the ADA. The Court in Bragdon held that" }, { "docid": "19135035", "title": "", "text": "to the plaintiffs motion with affidavits showing that any contested issues of fact between the parties are not material. To the extent that there is some dispute between Ticali’s Rule 56.1 statement and the defendants’ papers, the facts will be viewed in the light most favorable to the plaintiff and any facts in Ticali’s Rule 56.1 statement which remain uncon-troverted by the defendants’ papers will be accepted as true. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir.1984). Turning to the defendants’ motion for summary judgment, the court notes that, while it could deny their motion on the ground that they failed to comply with Local Rule 56.1, this Court is not compelled to do so but may overlook the “technical deficiency” of a party’s submission. Zeno v. Cropper, 650 F.Supp. 138, 139 (S.D.N.Y.1986) (citing Reisner v. General Motors Corp., 511 F.Supp. 1167, 1174-75 n. 14-15 (S.D.N.Y.1981), aff'd, 671 F.2d 91 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 130, 74 L.Ed.2d 112 (1982)). Though the defendants indeed failed to submit a Rule 56.1 statement with their moving papers, their affidavits set forth clearly the few issues of fact that are disputed and will be deemed to satisfy the rule. C. The Motion to Strike Various Affidavits and Exhibits In an additional procedural matter, the plaintiff requests that this Court strike certain materials that have been submitted either in support of defendants’ motion for summary judgment or in opposition to plaintiffs motion for summary judgment. The only “material” aimed at which the Court will consider are the “Teachers’ Affidavits” (made by teachers and staff who worked at the School during the relevant time period) attached as Exhibit 14 to the First Sarna Affidavit. Ticali corréctly urges this Court to disregard those parts of the affidavits that are not based on personal knowledge as being inadmissible. PL’s Mem. in Supp. of Mot. to Strike at 5 (citing United States v. Alessi, 599 F.2d 513, 515 (2d Cir.1979)). In using the teacher’s affidavits as evidence, this Court relies only on those portions based upon personal knowledge of the affiant. II." }, { "docid": "14888625", "title": "", "text": "MEMORANDUM OPINION AND ORDER HAIGHT, Senior District Judge. This diversity case removed from a state court is now before this Court on the motion of defendants 42nd Street Development Project, Inc. and Turner Construction Co., (“defendants”) for summary judgment on plaintiff Stanley Wojcik’s claims based upon New York Labor Law §§ 240(1), 241(6), 200, and common law negligence. For the reasons explained herein, I deny defendants’ motion as to plaintiffs Labor Law § 240(1) and § 241(6) claims, but grant their motion as to plaintiffs Labor Law § 200 and common law negligence claims. I. Preliminary Before I proceed to a recitation of the circumstances underlying this action, I address a preliminary issue. Plaintiff, represented by counsel, has wholly failed to submit a statement complying with Local Rule 56.1 statement. The consequences of that failure must be considered. District courts have the discretion to adopt local rules which they deem necessary to carry out the conduct of their business. Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) (citing 28 U.S.C. §§ 1654, 2071; Fed. R. Civ. Pro. 83). Pursuant to Local Civil Rule 56.1(a) adopted in this District, a motion for summary judgment must have annexed to it a short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no issue to be tried. Local Civil Rule 56.1(a). Here, defendants, as the moving party, included such a statement with their motion for summary judgment. Defendants’ statement contains eighty-two separate paragraphs with citations to the record. In addition, Rule 56.1(b) imposes a parallel mandate on the party opposing summary judgment. “The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party.” Local Civil Rule 56.1(b) (emphasis added). Counsel for plaintiff has filed an affidavit in opposition (the “Sacks Affidavit”) which contains a desultory assortment of factual allegations. But these allegations — contained in thirty-three numbered paragraphs — merely recite the asserted facts underlying plaintiffs case. Counsel for plaintiff has not" }, { "docid": "11539109", "title": "", "text": "ORDER KENNETH M. KARAS, District Judge: Plaintiff W. Terrell Baity (“Baity”), by his counsel, Michael H. Sussman, brings this Action against Defendants James Kra-lik (“Kralik”) and the County of Rockland (“Rockland County” or “the County”), alleging that Defendants discriminated against him on the basis of his race by terminating him from his position as a probationary corrections officer with the Rockland County Department of Corrections. Before the Court is Defendants’ Motion for Summary Judgment. (See Dkt. No. 26.) For the following reasons, Defendants Motion is Granted. I. BACKGROUND A. Plaintiffs Rule 56.1 Statement “Local Civil Rule 56.1 calls for a summary judgment movant to submit ‘a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,’ and for the opposing party to submit ‘a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.’ ” Johnson v. IAC/Interactive Corp., 2 F.Supp.3d 504, 507 (S.D.N.Y.2014) (quoting Local R. 56.1(a)-(b).) In responding to a Rule 56.1 statement, the party opposing the motion for summary judgment is “required by [the district’s] Local Rules to specifically respond to the assertion of each purported undisputed fact by the movant and, if controverting any such fact, to support its position by citing to admissible evidence in the record.” Risco v. McHugh, 868 F.Supp.2d 75, 86 n. 2 (S.D.N.Y.2012) (citing Local Rule 56.1(b), (d), and Fed.R.Civ.P. 56(c)). “If the opposing party then fails to controvert a fact set forth in the movant’s Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule.” Johnson, 2 F.Supp.3d at 507; see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). The purpose of this rule, and counsel’s compliance with the same, is to assist the Court by narrowing the scope of the issues to be adjudicated and identifying the" }, { "docid": "2872012", "title": "", "text": "OPINION & ORDER DENISE COTE, District Judge: Plaintiffs Adam Smith (“Smith”), Frank D’Angelo (“D’Angelo”), and Dawn Jasper (“Jasper”) bring this action in connection with work they performed in support of a line of haircare products created by defendant Darían Braun (“Braun”) under the brand name “Mikki More” (the “Mikki More Products”). Plaintiffs have sued Braun, his former partner Vincent Pacifico (“Pacifico”), and their company Mikki More, LLC for, among other things, misappropriating labels, marketing materials, and a website that plaintiffs created for the Mikki More Products in exchange for payment they never received. The parties have crossed-moved for summary judgment. For the reasons stated below, plaintiffs’ motion is granted in part and defendants’ motion is denied. BACKGROUND I. The Parties’ Failure to Abide by Local Rule 56.1 The parties’ factual disputes are difficult to parse here because the parties failed to follow the Southern District’s Local Rules (the “Local Rules”). Local Rule 56.1 requires a party moving for summary judgment to submit a short and concise statement, in numbered paragraphs, of the material facts as to which that party contends there is no genuine issue to be tried. Local Rule 56.1(a). A party opposing a motion for summary judgment is to respond to each paragraph in “a correspondingly numbered paragraph”; each paragraph is deemed admitted for purposes of this motion if not “specifically controverted by a correspondingly numbered paragraph.” Id. at 56.1(b), (c). If necessary, the opposing party shall offer its own statement of additional undisputed material facts. Id. at 56.1(b). The parties’ statements, including statements controverting any statement of material fact, must be followed by citation to admissible evidence. Id. at 56.1(d). Here, defendants submitted a Rule 56.1 Statement of Undisputed Material Facts in support of their motion for summary judgment that largely complied with the rule (the “Statement of Facts”). Plaintiffs, in response, submitted a single Rule 56.1 Counterstatement of Undisputed Material Facts (the “Counterstatement of Facts”). The first 89 paragraphs of plaintiffs’ Coun-terstatement of Facts correspond in some fashion to the 89 paragraphs of defendants’ Statement of Facts. Where plaintiffs did not dispute defendants’ statement of fact," }, { "docid": "14164597", "title": "", "text": "stated below, plaintiffs Motion for Summary Judgment is granted. FACTS PERTINENT TO THE MOTION A. Local Rule 56.1 and Fed.R.Civ.P. 56(e) Omnipoint argues that all of the facts set forth in its Rule 56.1 statement should be deemed admitted because defendants have not submitted a response to Omni-point’s statement of facts. Omnipoint further argues that paragraphs 3-9, 11-18 and 20-21 of Defendants’ Affirmation in Opposition contravenes Fed.R.Civ.P. 56(e), and should be stricken. Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 56.1”) requires a party moving for summary judgment to submit “a separate, short and concise statement” setting forth material facts as to which there is no genuine issue to be tried. Local Rule 56.1(a). A party opposing summary judgment must respond with a statement of facts, containing citations to admissible evidence as to which a triable issue remains. Local Rule 56.1(b) & (d). The facts set forth in a moving party’s statement “will be deemed admitted unless controverted” by the opposing party’s statement. Local Rule 56.1(c); Omnipoint Communications, Inc. v. City of White Plains, 175 F.Supp.2d 697, 700 (S.D.N.Y.2001). Defendants have failed to respond to plaintiffs Rule 56.1 Statement of Material Facts. Therefore, the facts set forth in Omnipoint’s Rule 56.1 Statement are deemed admitted by defendants. Fed.R.Civ.P. 56(e) provides that “opposing 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 matters stated therein.” An attorney’s affidavit which is not based on personal knowledge of the relevant facts should be accorded no weight on a motion for summary judgment. See Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983). When an attorney’s affirmation does not comply with Rule 56(e), the court should strike the portions thereof which are not made upon the affiant’s personal knowledge, contain inadmissible hearsay or make conclusory statements. See Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir.), cert. denied, 528 U.S. 965, 120 S.Ct. 399," }, { "docid": "17128422", "title": "", "text": "OPINION AND ORDER LEISURE, District Judge. Plaintiff AAI Recoveries, Inc. (“AAI”) brings this action to recover monies allegedly owed on four notes signed by defendant pro se Joaquin Pijuan (“Pijuan” or defendant). Pursuant to Rule 56 of the Federal Rules of Civil Procedure, AAI moves for summary judgment. For the reasons stated below, the motion is granted. BACKGROUND As the United States Court of Appeals for the Second Circuit has explained: Pursuant to 28 U.S.C. § 2071(a) and Rule 83 of the Federal Rules of Civil Procedure, district courts have the power to enact Local Rules governing their practice, procedure, and conduct of business. Local Rules have the force of law, to the extent that they do not conflict with rules prescribed by the Supreme Court, Acts of Congress,, or the Constitution. Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir.1991) (internal citations omitted). Local Rule 56.1 (“Rule 56.1”) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York provides: (a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion. (b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. ■ - ' • (e) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party. Rule 56.1. AAI submitted a Rule 56.1 statement in support of its motion for summary judgment. Although Pijuan submitted an affidavit in opposition to AAI’s motion, he did not submit a Rule 56.1 statement in response." }, { "docid": "17319236", "title": "", "text": "not mistake advocacy for assertions of fact based upon personal knowledge in evaluating Dr. Lessin’s statements. See Gittes v. GMIS, Inc., No. 95 Civ. 2296(BSJ), 1999 WL 500144 at *7 (S.D.N.Y. July 15, 1999). II. Defendants’ Opposition to the State’s Rule 56.1 Statement Defendants move to strike portions of the State’s Opposition to Defendants’ Rule 56.1 Statement (the “State’s Opposition Statement”) on grounds the State has failed to meet the requirements of Local Rule 56.1. Defendants’ contention has no merit. Local Rule 56.1 states in pertinent part that: (a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.... (b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. (c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to served by the opposing party. (d) Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e). The State’s Opposition Statement satisfies the requirements of Local Rule 56.1. First, a “proper 56.1 statement submitted by a non-movant should consist of a paragraph-by-paragraph response to the movant’s 56.1 statement, much like an answer to a complaint.” Rodriguez v. Schneider, 1999 WL 459813 at 1 (June 29, 1999). The State has listed the paragraphs and statements within paragraphs as to which the State concedes there are no genuine issues to be tried. (Pl.Opp. Statement at 1-9.) Second, where a nonmovant asserts that a fact claimed to be undisputed by the moving party is actually in dispute, the non-movant must support its contention with evidence from" }, { "docid": "16198980", "title": "", "text": "be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 280-81 (2d Cir.1999). Nevertheless, \"[e]ven a pro se party is not exempt from the requirements of summary judgment motions.” Johnson v. Queens Admin, for Children's Servs., No. 02-CV-4497, 2006 WL 229905, at *4 (E.D.N.Y. Jan. 31, 2006) (citation omitted). Local Rule 56.1 requires a party opposing summary judgment to file a separate statement of material facts \"as to which it is contended that there exists a genuine issue of material fact,” and that controverts all material facts set forth in the moving party's Rule 56.1 Statement. Local Civil Rule 56.1(b)-(c). Any material fact in a movant's Rule 56.1 Statement not controverted by the opposing party is deemed admitted. Id. at 56.1(c). Nevertheless, parties are not permitted to controvert a moving party's material facts with conclusory or unsupported statements, as “each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible ....” Id. at 56.1(e). Here, Plaintiff did not specifically contest each numbered paragraph in the moving party’s statement. Plaintiff also did not consistently cite to admissible evidence when Plaintiff did dispute Defendants' statements of facts Courts have \"broad discretion” in dealing with a party's failure to comply with local court rules. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 72 (2d Cir.2001). In this case, the Court accepts Defendants' Rule 56.1 statements of fact which Plaintiff stipulated to, and has independently reviewed the record in all other instances. . By the time Plaintiff made her May 2002 complaint, Sylvester had already left the employ of HHC, although he remained on the payroll by utilizing his sick, holiday and annual leave through December 20, 2002. Def. 56.1 Ex. O \"A. Sylvester's Employee Profile.” . Plaintiff's fourth evaluation, given to her in February 2002, was not dated until March 14, 2002-299 days before Plaintiff filed her NYSDHR complaint. See Def. 56.1, Ex. W \"Jan. 7, 2003 NYSDHR Complaint.\" Nevertheless, Plaintiff claims to have received this negative review — as she detailed in her" }, { "docid": "19135034", "title": "", "text": "a controverting statement in opposition to Ticali’s motion. She argues that since the defendants did not file a controverting Rule 56.1 statement, all material facts in Ticali’s 56.1 statement must be deemed admitted by the defendants for purposes of her summary judgment motion. Further, Ticali argues that the defendants’ failure to submit a Rule 56.1 statement in support of their own motion for summary judgment is a reason to deny their motion. Each of these contentions are now addressed. Federal Rule of Civil Procedure 56(e) provides that when a motion for summary judgment is made and supported by affidavits and depositions, an 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. If he does not so respond, summary judgment, if appropriate shall be entered against him.” In this case, despite the defendants’ failure to file a controverting Rule 56.1 statement, it is not appropriate to enter an order of summary judgment against them because the defendants have responded to the plaintiffs motion with affidavits showing that any contested issues of fact between the parties are not material. To the extent that there is some dispute between Ticali’s Rule 56.1 statement and the defendants’ papers, the facts will be viewed in the light most favorable to the plaintiff and any facts in Ticali’s Rule 56.1 statement which remain uncon-troverted by the defendants’ papers will be accepted as true. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir.1984). Turning to the defendants’ motion for summary judgment, the court notes that, while it could deny their motion on the ground that they failed to comply with Local Rule 56.1, this Court is not compelled to do so but may overlook the “technical deficiency” of a party’s submission. Zeno v. Cropper, 650 F.Supp. 138, 139 (S.D.N.Y.1986) (citing Reisner v. General Motors Corp., 511 F.Supp. 1167, 1174-75 n. 14-15 (S.D.N.Y.1981), aff'd, 671 F.2d 91 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 130, 74 L.Ed.2d 112 (1982)). Though the defendants indeed failed to submit a Rule" }, { "docid": "4115434", "title": "", "text": "Specific Facts,” which Plaintiff submitted along with its Response Memorandum in Opposition to Defendant’s Motion for Summary Judgment. The fact statement is thirty-eight pages long and contains one-hundred-twenty-nine individually numbered paragraphs, all in addition to Plaintiffs twenty page Memorandum in Opposition which itself contains a factual statement section. Local Rules 56.1(c) and 7.3(d) provide that responsive briefs on motions for summary judgement are limited to twenty (20) pages. Local Rule 56.1(e) provides that a responsive brief should set out “the specific, authenticated facts existing in the record or set forth in accompanying affidavits that would be sufficient to support a jury finding of the existence of the disputed elements.” Plaintiffs “Statement of Specific Facts” greatly exceeds the applicable page limit mandated by the local rules of this Court. Further, the statement does not set forth facts which are not otherwise available in the record. Moreover, the facts the statement brings forth were largely presented in the Opposition Memorandum’s own statement of facts or alleged in the Complaint. The Court therefore finds that Plaintiffs “Statement of Specific Facts,” which was submitted along with its Response Memorandum in Opposition to Defendant’s Motion for Summary Judgment, violates the Local Rules and lacks any utility which would justify exempting it from the Rules. Accordingly, Defendant’s Motion to Strike is GRANTED and the statement is hereby STRICKEN from the record. B. Motion for Summary Judgment 1. Summary Judgment Standard Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is considered “material” if it “might affect the outcome of the suit under the governing law .... ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986). Under this standard, a genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. As a result, the Court will only enter summary judgment in favor of the moving party when the" }, { "docid": "13519246", "title": "", "text": "ORDER WALTER E. JOHNSON, United States Magistrate Judge. Plaintiff, Donna Katz Maples, a former employee of Peachford Hospital, filed this action alleging that defendants eliminated her part-time nurse position in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. (Compl. [1] ¶¶ 1, 13, 17, 22-24.) After discovery, defendants moved for summary judgment. (See Defs.’ Mot. for Summ. J. [38].) For the reasons explained below, the Court concludes that no disputed issues of material fact remain to be tried. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED. I. STATEMENT OF FACTS In compliance with Local Rule 56.1(B)(1), defendants as movants filed a Statement of Material Facts in Support of Their Motion for Summary Judgment [38-3] (“DSMF”). Local Rule 56.1(B)(2) requires a respondent like Ms. Maples to submit both a response to the movants’ statement of undisputed facts and a statement of additional facts which she contends are material. N.D. Ga. R. 56.1(B)(2)(a)-(b). Ms. Maples did not respond to the movants’ statement of undisputed material facts. Under Local Rule 56.1(B)(2)(a)(2), because the record cites support them, the Court must deem each of defendants’ proposed facts admitted. See Reese v. Herbert, 527 F.3d 1253, 1267-71 (11th Cir.2008). Plaintiff did file a “Separate Statement of Uneontested Material Facts in Support of Her Objections to Defendant’s Motion for Summary Judgment” [45] (“PSMF”). See N.D. Ga. R. 56.1(B)(2)(b). Defendants have responded, admitting some of plaintiffs proposed facts and denying others. (See Def.’s Resp. to Pl.’s Stat. of Undisp. Mat. Facts (“RSMF”) [53-2].) When defendants admit one of plaintiffs proposed facts, the Court accepts it for purposes of this Motion. Where, however, defendants deny one of plaintiffs proposed facts, the Court reviews the record to determine whether the proposed fact is both material and presents a genuine issue for trial. However, the Court does not include proposed facts that are immaterial (PSMF ¶¶ 7, 28), unsupported by the record (id. ¶¶ 12-14, 19), or constitute legal conclusions (id. ¶¶4, 29). The Court also includes other record evidence where relevant. A. Plaintiff’s Employment On November 12, 2001," }, { "docid": "9528256", "title": "", "text": "MEMORANDUM OPINION (On Reconsideration) KAPLAN, District Judge. Plaintiff Archie Comic Publications, Inc. (“ACP”) is a publisher of comic books including the well-known Archie, Josie, Sabrina the Teenage Witch, and Cheryl Blossom publications. The late Daniel S. DeCarlo was a comic book artist who did freelance work for ACP beginning in the early 1950s, contributed to the Josie, Sabrina and Cheryl Blossom properties, and in recent years began claiming ownership rights in those properties. ACP seeks declaratory and injunctive relief, essentially to quiet its title to these properties against recent claims by DeCarlo’s estate. The matter now is before the Court on plaintiffs motion for summary judgment on its first through fifth claims for relief in No. 00 Civ. 5686. I. Facts A. Defendant’s Failure to Comply With Local Civ. R. 56.1 There is a preliminary matter that must be addressed before getting to the pertinent facts. On a motion for summary judgment, the moving party bears the burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In considering such a motion, all facts and inferences reasonably drawn therefrom are construed in favor of the nonmoving party. Local Civil Rule 56.1 of this Court, which is substantially similar to antecedents that have been in effect for many years, provides in relevant part as follows: “(a) Upon any motion for summary judgment ..., there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion. “(b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. “(c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to" }, { "docid": "4996089", "title": "", "text": "favor of the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. II. Local Rule 56.1 Plaintiffs argue that defendants’ motion for summary judgment should be summarily denied, because defendants did not serve or file a separate, short and concise statement, in numbered paragraphs, of the undisputed material facts pursuant to S.D.N.Y. Local Civil Rule 56.1. (Pis. Mem. Opp. Mot. Dismiss at 1.) According to the relevant part of the Rule, which is applicable in the United States District Courts for the Eastern and Southern Districts of New York: “[u]pon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.” S.D.N.Y. LoCal Civ. R. 56.1(a) (emphasis in original). “A district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (citations omitted). In its exercise of this broad discretion, the Court will overlook defendants’ failure to adhere to Local Civil Rule 56.1 because: defendants submitted evidence in the form of affidavits to which plaintiffs responded; the facts about the front desk area upon which we rely to determine this motion are not in dispute and plaintiffs have not alleged that they suffered any prejudice from the failure, nor could they because the relevant facts were readily apparent from the “Facts” section of the memorandum of law and the supporting affidavits. See Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 156 n. 2 (2d Cir.2003) (noting that failure to comply with Local Civil Rule 56.1 was excused since the relevant facts were apparent from the parties’ submissions and there was no evidence of prejudice from the defect); Gilani v. GNOC Corp., 2006 WL 1120602, at *2 (E.D.N.Y. Apr. 26, 2006) (exercising court’s" }, { "docid": "19186121", "title": "", "text": "Hospital. Mahmud I, 454 F.Supp.2d at 153 n. 2. . Local Rule 56.1 provides that upon motions for summary judgment the moving party shall submit \"a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” (alteration in original). Although it appears that defendants' initial Rule 56.1 Statement meets these requirements, defendants' Supplemental Rule 56.1 Statement does not contain any numbered paragraphs. Therefore, the Court's citations to this Statement include only the relevant page number. Local Rule 56.1 also provides that the papers opposing a motion for summary judgment “shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts.” (alterations in original). Plaintiff has not provided any statement corresponding to either of defendants' Rule 56.1 Statements. Instead, plaintiff directs the Court to her 84-paragraph declaration, to her own Rule 56.1 Statement, which, according to plaintiff, \"is also a brief summary of the material facts,” and to two exhibits which, together, contain approximately 185 documents. (PL Mem. Opp. Summ. J. at 3.) Plaintiff also includes a seven-page \"Partial Statement of Facts” in her Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment. (Id. at 4-12.) Plaintiff's counsel explains: \"Instead of attempting to summarize this substantial body of evidence, I have arranged the documents ... so that they tell the story.” (Id. at 3.) The Court notes that not only is it an attorney’s job to attempt to summarize the evidence, but it is the attorney’s job to actually do so. By barraging the Court with documents in this manner, plaintiff not only fails to comply with Rule 56.1's requirements of \"short and concise” statements, but also undermines the purpose of Rule 56.1 \"to streamline the consideration of summary judgment motions by freeing the district courts from the need to hunt through voluminous records without guidance from the parties.” Rodriguez v. Morton, 2009 WL 414033, at *6 (S.D.N.Y. Feb." }, { "docid": "16096276", "title": "", "text": "Dilution Act (the “FTDA”), 15 U.S.C. § 1125(c), and § 360-1 of the New York General Business Law. N.Y. Gen. Bus. L. § 360-1 (McKinney Supp. 1999). After discovery, these motions followed. In November 1999, while the cross-motions for summary judgment were pending, the Anticybersquatting Consumer Protection Act (the “ACPA”) was signed into law. Pub.L. No. 106-113, 113 Stat. 1501 (1999) (to be codified at 15 U.S.C. § 1125(d)). On February 2, 2000, the Second Circuit issued a decision interpreting the ACPA — the first interpretation of the ACPA at the appellate level — in Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489 (2d Cir.2000). In light of these developments, Cello requested leave of the Court to amend the complaint to add a claim under the ACPA. Defendants opposed the request, arguing that the ACPA was inápplicable. The Court then asked for, and received, supplemental briefing from the parties on the applicability of the ACPA and Sporty’s to this case. DISCUSSION A. Local Civil Rule 56.1 A threshold issue is presented by defendants’ failure to submit, on a timely basis, a “separate, short and concise statement of the material facts” as required by Local Civil Rule 56.1, either in support of their motion or in opposition to Cello’s motion. Defendants did not submit a Rule 56.1statement until two months after they had cross-moved for summary judgment and a month and a half after Cello had filed reply papers. Cello objects to defendants’ late-filed 56.1 statement and argues that it should be rejected and the facts contained in Cello’s 56.1 statement deemed admitted. Cello’s objection to defendants’ late Rule 56.1statement is overruled. Defendants did submit, on a timely basis, declarations and other evidentiary materials that challenged Cello’s factual assertions, and they also submitted a timely memorandum of law. The facts contained in their late Rule 56.1statement do not contradict the facts asserted in their earlier filed declarations and other materials. Hence, there is no prejudice to Cello if defendants’ Rule 56.1 statement is accepted. On the other hand, defendants will be seriously prejudiced if the facts asserted in Cello’s" }, { "docid": "17319235", "title": "", "text": "Accordingly, his statements meet the personal knowledge requirement of Fed.R.Evid. 602. To the extent he gives an opinion, Brandow’s opinion is rationally based on his perception and is helpful to the trier of fact as required by Fed.R.Evid. 701. D. The Lessin Affidavit Defendants also move to strike the affidavit of Dr. Herschel Lessin, chairman of the board of TIPA in its entirety on grounds of hearsay and lack of personal knowledge. This motion is denied. The Court has reviewed the affidavit and has found that, while certain portions of the affidavit are unduly argumentative, the affidavit should not be stricken in its entirety. TIPA has a risk-sharing arrangement with MVP regarding hospital costs and other expenses. (Lessin Aff. ¶ 3.) The affidavit states Dr. Lessin’s perception of the impact a joint negotiating strategy by hospitals may have upon TIPA’s costs. (Id. ¶¶4-6.) This opinion testimony is rationally based upon Dr. Lessin’s experience as chairman of the board of TIPA. To the extent Dr. Lessin’s affidavit offers generalized conclusions and legal arguments, the Court will not mistake advocacy for assertions of fact based upon personal knowledge in evaluating Dr. Lessin’s statements. See Gittes v. GMIS, Inc., No. 95 Civ. 2296(BSJ), 1999 WL 500144 at *7 (S.D.N.Y. July 15, 1999). II. Defendants’ Opposition to the State’s Rule 56.1 Statement Defendants move to strike portions of the State’s Opposition to Defendants’ Rule 56.1 Statement (the “State’s Opposition Statement”) on grounds the State has failed to meet the requirements of Local Rule 56.1. Defendants’ contention has no merit. Local Rule 56.1 states in pertinent part that: (a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.... (b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be" } ]

[ { "docid": "23051456", "title": "", "text": "to reinstate the default judgment once immunity was denied. Joseph also argues that the district court incorrectly determined that jurisdiction over Nigeria and the Consulate is not conferred by the waiver, commercial activity, and immovable property exceptions to the FSIA. DISCUSSION Our evaluation of the defendants’ claims of immunity involves two independent doctrines. The doctrine of sovereign immunity is applicable only to states and their instrumentalities — here, Nigeria and the Consulate. The doctrine of consular immunity is applicable only to consular officials and employees — here, Olalandu. I. Sovereign Immunity The FSIA is the exclusive source of subject matter jurisdiction over suits involving foreign states or their instrumentalities. De Letelier v. Republic of Chile, 748 F.2d 790, 793 (2d Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985); see 28 U.S.C. § 1330(a). Nigeria is of course a foreign state. The Consulate, as a separate legal person, also qualifies as a “foreign state” under the FSIA. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1517 (9th Cir.1987). Under the FSIA, we presume that actions taken by foreign states or their instrumentalities are sovereign acts and thus are protected from the exercise of our jurisdiction, unless one of the FSIA’s exceptions to immunity applies. Meadows v. Dominican Republic, 817 F.2d 517, 522 (9th Cir.1987). Once the plaintiff offers evidence that an FSIA exception to immunity applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. See id. at 522-23; Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne de Navigation, 730 F.2d 195, 199 (5th Cir.1984). Joseph claims that Nigeria and the Consulate are subject to jurisdiction pursuant to four exceptions to sovereign immunity set forth in § 1605 of the FSIA. These exceptions are commonly known as the waiver exception, 28 U.S.C. § 1605(a)(1), the commercial activity exception, 28 U.S.C. § 1605(a)(2), the immovable property exception, 28 U.S.C. § 1605(a)(4), and the tortious activity exception, 28 U.S.C. § 1605(a)(5). *6 We review de novo the district court’s determination that subject matter jurisdiction over" } ]

[ { "docid": "5475625", "title": "", "text": "provide 60-days notice of intent to close the plant; (2) violation of the continuation rules of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), 29 U.S.C. §§ 1161-68, for failure to give the Plan participants notice of entitlement to, and actual opportunity to convert to, continuation health care coverage upon their terminations from employment; (3) breach of Plan obligations for failure to pay benefits for covered health care services rendered before the Plan was terminated; (4) breach of fiduciary duty for failure to cause the Plan to pay covered pre-Plan-termination benefits and to give notice of, and make available, continuation health care coverage; and,(5) violation of section 510 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, for interfering with the GGFF employees’ opportunities to obtain pre-Plan-termination and continuation health care coverage benefits by terminating the Plan. Alberta Pork and FFF moved to dismiss for lack of subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act (“the Act”), 28 U.S.C. §§ 1602-1611. The district court declined to decide whether Alberta Pork and FFF were entities protected by the Act; instead, the court assumed that they were but concluded that the defendants were not immune from the court’s jurisdiction in any event because the defendants’ actions fell into the commercial activities exception to the Act’s grant of immunity. Alberta Pork and FFF appeal. II The Foreign Sovereign Immunities Act provides the exclusive source of subject matter jurisdiction over suits involving foreign states and their instrumentalities. Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). Under the Act, foreign states are presumed to be immune from the jurisdiction of United States courts unless one of the Act’s exceptions to immunity applies. 28 U.S.C. § 1604. For instance, a foreign state is not immune if the plaintiffs cause of action is based upon a commercial activity carried on by the foreign state. 28 U.S.C. § 1605(a). The parties first dispute whether the Act is even implicated. The GGFF employees contend that" }, { "docid": "4214737", "title": "", "text": "State of the United States as defined in section 1332(c)and (d) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b) (emphasis added). The defendants argue that Pemex-Refin-ing does not qualify as an “agency or instrumentality of a foreign state” under § 1603(b)(2) because it is a subsidiary of Pemex. For authority, the defendants cite to Gates v. Victor Fine Foods, 54 F.3d at 1461-63. Gates focused on § 1603(b)(2) of the FSIA. In that case, a group of plaintiffs in California sued Alberta Pork and its fully owned subsidiary, Fletcher’s Fine Foods (FFF). Alberta Pork was a pork marketing board in Alberta, Canada; its primary role was to purchase live hogs from producers and sell the porkers to packers. Id. at 1461. FFF was a pork processing plant headquartered in British Columbia, Canada. Id. at 1459. Both Alberta Pork and FFF claimed that they were “agencies or instrumentalities of a foreign state” and hence immune from the court’s jurisdiction under the FSIA. We explained in Gates that there are two ways in which an entity can fulfill the requirements of § 1603(b)(2). Either the entity can be an “organ of a foreign state,” or the entity can have a majority of its shares or other ownership interest owned by “a foreign state or a political subdivision thereof.” Id. at 1461. Applying the two-part test of § 1603(b)(2) to Alberta Pork and FFF, we held that Alberta Pork was an organ of a foreign state even though the government did not exercise day-to-day management over the entity. We noted that the government played an active supervisory role: Alberta Pork could only act on matters the government authorized; the government could order it to change its regulations; producers who were dissatisfied with a decision by Alberta Pork could appeal to an appellate body appointed by the government; and members of Alberta Pork’s board were given immunity from liability similar to that given to government actors. Id. at 1460-61. Having found that Alberta Pork was an “agency or instrumentality of a foreign state,” we then considered" }, { "docid": "5475646", "title": "", "text": "for jurisdiction if it were determined that Alberta Pork was involved in the employment decisions in controversy, mere stock ownership, without more, does not create any relationship to the GGFF employees’ claims, especially given the Act’s presumption that separate juridical entities are to be treated as such. The record contains no evidence to suggest that Alberta Pork was involved in GGFF’s decision to cancel its Plan and to close its plant. There is no evidence that GGFF shared officers and directors with Alberta Pork. Nor is there any evidence that Alberta Pork participated in any decisions concerning GGFF’s operations. Thus, we conclude that because Alberta Pork’s commercial activities are unrelated to the GGFF employees’ claims, Alberta Pork does not fall into the Act’s commercial activities exception. y Finally, the GGFF employees contend that Alberta Pork has waived its immunity. The Act provides that a foreign state shall not be immune from the jurisdiction of United States courts if “the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.” 28 U.S.C. § 1605(a)(1). This court has held that the waiver exception must be narrowly construed. Joseph, 830 F.2d at 1022. Generally speaking, implicit waivers are found only where (1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that the law of a particular country should govern the contract; or (3) a foreign state has filed a responsive pleading without raising the defense of sovereign immunity. Id. The GGFF employees maintain Alberta Pork waived immunity “by participating in loan and credit transactions ... which expressly provide for jurisdiction of the United States courts.” The GGFF employees call particular attention to the “credit arrangements undertaken for the sole and exclusive purpose of funding GGFF Lodi plant operations.” The GGFF employees’ argument is not persuasive, however. As Alberta Pork points out, the GGFF employees’ theory seems to be that if a foreign state enters into one agreement as to which it" }, { "docid": "5475638", "title": "", "text": "Cir.1987), cert denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). The Act was intended to codify the so-called “restrictive” principle of sovereign immunity. 1976 U.S.C.C.A.N. at 6605. “Under this principle, the immunity of a foreign state is ‘restricted’ to suits involving a foreign state’s public acts (jure imperii) and does not extend to suits based on its commercial or private acts (jure gestionis).” Id. Accordingly, the Act provides that foreign states which are engaging in commercial activity are not immune from the jurisdiction of the United States courts. Specifically, a court has jurisdiction in any case in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. § 1605(a)(2). In determining the commercial character of an activity, the Act directs courts to examine the nature of the act or course of conduct, rather than the purpose. 28 U.S.C. § 1603(d). Further, it is not enough for the defendant merely to have engaged in a commercial activity. Rather, the statutory language requires that the plaintiffs cause of action be “based upon” the commercial activity in question. Saudi Arabia v. Nelson, — U.S. —, —, 113 S.Ct. 1471, 1477, 123 L.Ed.2d 47 (1993). Thus, a court must “focus only on those specific acts that form the basis of the suit” to determine whether those acts constitute or are in connection with the commercial activity. Joseph, 830 F.2d at 1023 (emphasis in original). Here, the district court determined that Alberta Pork fell into the commercial activities exception and was therefore not immune. The district court had previously held that COBRA’s definition of “employer” applied to the GGFF employees’ COBRA and ERISA claims, and that Alberta Pork was an “employer” of the GGFF employees for the purposes" }, { "docid": "4214736", "title": "", "text": "performance bond, in part because the government of Mexico guarantees Pemex-Refining’s performance. B. Analysis The FSIA is the exclusive source of subject matter jurisdiction over suits involving foreign states and their instrumentalities. Gates v. Victor Fine Foods, 54 F.3d 1457, 1459 (9th Cir.1995), cert. denied, - U.S. 116 .Ct. 187, 133 L.Ed.2d 124 (1995). The Act provides that \"a foreign state shall be immune from the jurisdiction of the Courts of the United States and of the gtates\" except in certain specified circumstances. 28 U.S.C. § 1604. Under the FSIA, a \"foreign state\" includes any \"agency or instrumentality of a foreign state.\" 28 U.S.C. § 1603(a). In turn, an \"agency or instrumentality of a foreign state\" is defined as: any entity-(1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or a political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or a political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c)and (d) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b) (emphasis added). The defendants argue that Pemex-Refin-ing does not qualify as an “agency or instrumentality of a foreign state” under § 1603(b)(2) because it is a subsidiary of Pemex. For authority, the defendants cite to Gates v. Victor Fine Foods, 54 F.3d at 1461-63. Gates focused on § 1603(b)(2) of the FSIA. In that case, a group of plaintiffs in California sued Alberta Pork and its fully owned subsidiary, Fletcher’s Fine Foods (FFF). Alberta Pork was a pork marketing board in Alberta, Canada; its primary role was to purchase live hogs from producers and sell the porkers to packers. Id. at 1461. FFF was a pork processing plant headquartered in British Columbia, Canada. Id. at 1459. Both Alberta Pork and FFF claimed that they were “agencies or instrumentalities of a foreign state” and hence immune from the court’s jurisdiction under the FSIA. We explained in Gates that there" }, { "docid": "4214738", "title": "", "text": "are two ways in which an entity can fulfill the requirements of § 1603(b)(2). Either the entity can be an “organ of a foreign state,” or the entity can have a majority of its shares or other ownership interest owned by “a foreign state or a political subdivision thereof.” Id. at 1461. Applying the two-part test of § 1603(b)(2) to Alberta Pork and FFF, we held that Alberta Pork was an organ of a foreign state even though the government did not exercise day-to-day management over the entity. We noted that the government played an active supervisory role: Alberta Pork could only act on matters the government authorized; the government could order it to change its regulations; producers who were dissatisfied with a decision by Alberta Pork could appeal to an appellate body appointed by the government; and members of Alberta Pork’s board were given immunity from liability similar to that given to government actors. Id. at 1460-61. Having found that Alberta Pork was an “agency or instrumentality of a foreign state,” we then considered the status of FFF under § 1603(b)(2). We quickly rejected the idea that FFF could be “an organ of a foreign state” because it was only “an ordinary pork processing plant.” Id. at 1461. Next, we considered FFF’s contention that it was an agency or instrumentality of a foreign state by virtue of the fact that 100% of its shares were held by Alberta Pork. We rejected this contention and held that the ownership test of § 1603(b)(2) applied only to the first tier of ownership: an entity wholly owned by “an agency or instrumentality of a foreign state” is not owned by a “foreign state or a political subdivision thereof’ and therefore does not meet the definition of § 1603(b)(2). Id. at 1462. In the instant case, the defendants claim that Pemex-Refining does not meet the ownership test of § 1603(b)(2) because it is a subsidiary of Pemex and therefore should be analogized to FFF in Gates. However, the defendants’ focus on only one prong of § 1603(b)(2) ignores the possibility that Pe-mex-Refining could" }, { "docid": "5475626", "title": "", "text": "Pork and FFF were entities protected by the Act; instead, the court assumed that they were but concluded that the defendants were not immune from the court’s jurisdiction in any event because the defendants’ actions fell into the commercial activities exception to the Act’s grant of immunity. Alberta Pork and FFF appeal. II The Foreign Sovereign Immunities Act provides the exclusive source of subject matter jurisdiction over suits involving foreign states and their instrumentalities. Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). Under the Act, foreign states are presumed to be immune from the jurisdiction of United States courts unless one of the Act’s exceptions to immunity applies. 28 U.S.C. § 1604. For instance, a foreign state is not immune if the plaintiffs cause of action is based upon a commercial activity carried on by the foreign state. 28 U.S.C. § 1605(a). The parties first dispute whether the Act is even implicated. The GGFF employees contend that Alberta Pork and FFF are not “foreign states” within the meaning of the Act, and thus can gain no protection from it. Assuming that the defendants are foreign states, the parties next dispute whether the defendants are nonetheless subject to jurisdiction because they fall into the Act’s commercial activities exception. We examine these contentions in turn. Ill The Foreign Sovereign Immunities Act provides immunity only for “foreign states.” 28 U.S.C. § 1604. The Act defines a foreign state to include any “agency or instrumentality of a foreign state.” 28 U.S.C. § 1603. In order for an entity to be considered an “agency or instrumentality,” three requirements must be met. First, the entity must be a separate legal person. Second, the entity must not be a citizen of the United States nor be created under the laws of any third country. Finally, the entity must be either “an organ” of the foreign state or political subdivision thereof, or a majority of its shares must be owned by the foreign state or political subdivision thereof. 28 U.S.C." }, { "docid": "4214739", "title": "", "text": "the status of FFF under § 1603(b)(2). We quickly rejected the idea that FFF could be “an organ of a foreign state” because it was only “an ordinary pork processing plant.” Id. at 1461. Next, we considered FFF’s contention that it was an agency or instrumentality of a foreign state by virtue of the fact that 100% of its shares were held by Alberta Pork. We rejected this contention and held that the ownership test of § 1603(b)(2) applied only to the first tier of ownership: an entity wholly owned by “an agency or instrumentality of a foreign state” is not owned by a “foreign state or a political subdivision thereof’ and therefore does not meet the definition of § 1603(b)(2). Id. at 1462. In the instant case, the defendants claim that Pemex-Refining does not meet the ownership test of § 1603(b)(2) because it is a subsidiary of Pemex and therefore should be analogized to FFF in Gates. However, the defendants’ focus on only one prong of § 1603(b)(2) ignores the possibility that Pe-mex-Refining could be an “organ of a foreign state” and therefore fulfill § 1603(b)(2)’s requirements by a different route. Pemex-Refining fulfills the “organ of a foreign state” prong of § 1603(b)(2). As the district court explained, [Pemex-Refining] is an integral part of the United Mexican States. Pemex[-Refining] was created by the Mexican Constitution, Federal Organic Law, and Presidential Proclamation; it is entirely owned by the Mexican Government; is controlled entirely by government appointees; employs only public servants; and is charged with the exclusive responsibility of refining and distributing Mexican government property. Thus Pemex-[Refining] is a subdivision of the United Mexican States and therefqre qualifies for foreign sovereign immunity under FSIA. The defendants have not contested this description of Pemex-Refining. In a eompari-son with our decision in Gates, Pemex-Re-fining is much more of an “organ” of the government of Mexico than Alberta Pork is of the province of Alberta. Therefore, the FSIA applies to this action. II. Pemex-Refining’s waiver of its foreign sovereign immunity A. Did Pemex-Refining implicitly waive all of its FSIA immunity? The defendants contend that" }, { "docid": "5475623", "title": "", "text": "O’SCANNLAIN, Circuit Judge: This case requires us to explore the statutory maze of the Foreign Sovereign Immunities Act as it applies to Canadian entities that market and promote hogs raised in the Province of Alberta and operate a pork processing plant in British Columbia, either one of which might affect employees in a plant in California. I Alberta Pork Producers Development Corporation (“Alberta Pork”) is a Canadian entity established pursuant to the Alberta 'Marketing of Agricultural Products Act, R.S.A. 1980, c. M-5, to provide for the effective marketing and promotion of hogs produced in the Province of Alberta. Alberta Pork is the sole marketing agent through which hogs raised in Alberta for slaughter must be sold. Hog producers must sell their hogs to Alberta Pork, which receives a service charge for each hog. Alberta Pork, in turn, sells the hogs to pork processors both within and outside of Canada and remits the proceeds to the producers. In order to promote and to sell hogs effectively, Alberta Pork is authorized to acquire businesses that process and sell pork. Pursuant to this authority, Alberta Pork purchased Fletcher’s Fine Foods (“FFF”), a pork processing plant headquartered in British Columbia, and it currently owns 100% of the shares of FFF. FFF, in turn, is parent to a number of subsidiaries, and through these subsidiaries owned Golden Gate Fresh Foods (“GGFF”), a California pork processing plant. GGFF was located in Lodi, California and operated under the trade name of Victor Fine Foods. GGFF maintained a welfare benefit plan known as the Victor Fine Foods Group Benefits Plan (“the Plan”). Throughout the time that FFF owned GGFF, GGFF experienced great financial difficulties. Finally, on November 19, 1991, FFF discontinued its financial support of GGFF. The next day, GGFF terminated the Plan. On December 13, the GGFF plant closed, and all the employees were terminated. The former employees of GGFF (“GGFF employees”) brought a class action against GGFF, Alberta Pork, FFF and other defendants, asserting five claims: (1) violation of the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et seq., for failure to" }, { "docid": "5475637", "title": "", "text": "foreign state or political subdivision or has a majority of its shares owned by the foreign state or political subdivision. Although such a broad view of sovereign immunity may very well be desirable, we cannot assume that Congress intended such a result when a literal reading of the statute leads to the opposite conclusion. In sum, we hold that Alberta Pork is an agency or instrumentality under the Act and thus is immune from jurisdiction unless one of the Act exceptions applies. However, FFF cannot be considered an agency or instrumentality and thus is entitled to no protection from the Act. IV As an agency or instrumentality of a foreign state, Alberta Pork is entitled to immunity unless it falls into one of the Foreign Sovereign Immunities Act’s exceptions to immunity. Once a plaintiff offers evidence that an Act exception applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir.1987), cert denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). The Act was intended to codify the so-called “restrictive” principle of sovereign immunity. 1976 U.S.C.C.A.N. at 6605. “Under this principle, the immunity of a foreign state is ‘restricted’ to suits involving a foreign state’s public acts (jure imperii) and does not extend to suits based on its commercial or private acts (jure gestionis).” Id. Accordingly, the Act provides that foreign states which are engaging in commercial activity are not immune from the jurisdiction of the United States courts. Specifically, a court has jurisdiction in any case in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. 28 U.S.C. §" }, { "docid": "4214740", "title": "", "text": "be an “organ of a foreign state” and therefore fulfill § 1603(b)(2)’s requirements by a different route. Pemex-Refining fulfills the “organ of a foreign state” prong of § 1603(b)(2). As the district court explained, [Pemex-Refining] is an integral part of the United Mexican States. Pemex[-Refining] was created by the Mexican Constitution, Federal Organic Law, and Presidential Proclamation; it is entirely owned by the Mexican Government; is controlled entirely by government appointees; employs only public servants; and is charged with the exclusive responsibility of refining and distributing Mexican government property. Thus Pemex-[Refining] is a subdivision of the United Mexican States and therefqre qualifies for foreign sovereign immunity under FSIA. The defendants have not contested this description of Pemex-Refining. In a eompari-son with our decision in Gates, Pemex-Re-fining is much more of an “organ” of the government of Mexico than Alberta Pork is of the province of Alberta. Therefore, the FSIA applies to this action. II. Pemex-Refining’s waiver of its foreign sovereign immunity A. Did Pemex-Refining implicitly waive all of its FSIA immunity? The defendants contend that Pemex-Re-fining implicitly waived any claim that it had for immunity when it intervened in this action. 28 U.S.C. § 1605 states that a foreign state is not immune from the- jurisdiction of United States courts if “the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.” 28 U.S.C. § 1605(a)(1). The waiver exception is narrowly construed. The legislative history of the Act indicates, that implicit waivers are ordinarily found in three situations: “(1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that a- contract is governed by the law of a particular country; and (3) a foreign state has filed a responsive pleading in a case without raising the defense of sovereign immunity.” Joseph v. Office of Consulate General of Nigeria, 830 F,2d 1018, 1022 (9th Cir.1987) (emphasis added), cert. denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). Since" }, { "docid": "5475624", "title": "", "text": "sell pork. Pursuant to this authority, Alberta Pork purchased Fletcher’s Fine Foods (“FFF”), a pork processing plant headquartered in British Columbia, and it currently owns 100% of the shares of FFF. FFF, in turn, is parent to a number of subsidiaries, and through these subsidiaries owned Golden Gate Fresh Foods (“GGFF”), a California pork processing plant. GGFF was located in Lodi, California and operated under the trade name of Victor Fine Foods. GGFF maintained a welfare benefit plan known as the Victor Fine Foods Group Benefits Plan (“the Plan”). Throughout the time that FFF owned GGFF, GGFF experienced great financial difficulties. Finally, on November 19, 1991, FFF discontinued its financial support of GGFF. The next day, GGFF terminated the Plan. On December 13, the GGFF plant closed, and all the employees were terminated. The former employees of GGFF (“GGFF employees”) brought a class action against GGFF, Alberta Pork, FFF and other defendants, asserting five claims: (1) violation of the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et seq., for failure to provide 60-days notice of intent to close the plant; (2) violation of the continuation rules of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), 29 U.S.C. §§ 1161-68, for failure to give the Plan participants notice of entitlement to, and actual opportunity to convert to, continuation health care coverage upon their terminations from employment; (3) breach of Plan obligations for failure to pay benefits for covered health care services rendered before the Plan was terminated; (4) breach of fiduciary duty for failure to cause the Plan to pay covered pre-Plan-termination benefits and to give notice of, and make available, continuation health care coverage; and,(5) violation of section 510 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, for interfering with the GGFF employees’ opportunities to obtain pre-Plan-termination and continuation health care coverage benefits by terminating the Plan. Alberta Pork and FFF moved to dismiss for lack of subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act (“the Act”), 28 U.S.C. §§ 1602-1611. The district court declined to decide whether Alberta" }, { "docid": "5475647", "title": "", "text": "waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.” 28 U.S.C. § 1605(a)(1). This court has held that the waiver exception must be narrowly construed. Joseph, 830 F.2d at 1022. Generally speaking, implicit waivers are found only where (1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that the law of a particular country should govern the contract; or (3) a foreign state has filed a responsive pleading without raising the defense of sovereign immunity. Id. The GGFF employees maintain Alberta Pork waived immunity “by participating in loan and credit transactions ... which expressly provide for jurisdiction of the United States courts.” The GGFF employees call particular attention to the “credit arrangements undertaken for the sole and exclusive purpose of funding GGFF Lodi plant operations.” The GGFF employees’ argument is not persuasive, however. As Alberta Pork points out, the GGFF employees’ theory seems to be that if a foreign state enters into one agreement as to which it waives immunity, then the foreign state has implicitly waived immunity for all of its other transactions, regardless of how unrelated the transactions are to one another. Such a theory does not comport with the narrow construction that the waiver exception must receive. Just because Alberta Pork may have agreed to submit to the jurisdiction of United States courts in connection with a loan collection action by a bank in Washington State, it does not in any way mean that they also agreed to submit to the jurisdiction of United States courts in connection with a dispute involving GGFF employees in California. Thus, we conclude that Alberta Pork did not waive its immunity under the Act. VI Foreign sovereign immunity is premised on comity and respect for the equality and independence of sovereigns. Although the United States has enacted the restrictive principle of sovereign immunity, whereby foreign states do not enjoy immunity over claims based on their commercial activities, a foreign state does not lose its immunity under the Foreign Sovereign Immunities Act merely by engaging" }, { "docid": "5475648", "title": "", "text": "waives immunity, then the foreign state has implicitly waived immunity for all of its other transactions, regardless of how unrelated the transactions are to one another. Such a theory does not comport with the narrow construction that the waiver exception must receive. Just because Alberta Pork may have agreed to submit to the jurisdiction of United States courts in connection with a loan collection action by a bank in Washington State, it does not in any way mean that they also agreed to submit to the jurisdiction of United States courts in connection with a dispute involving GGFF employees in California. Thus, we conclude that Alberta Pork did not waive its immunity under the Act. VI Foreign sovereign immunity is premised on comity and respect for the equality and independence of sovereigns. Although the United States has enacted the restrictive principle of sovereign immunity, whereby foreign states do not enjoy immunity over claims based on their commercial activities, a foreign state does not lose its immunity under the Foreign Sovereign Immunities Act merely by engaging in some commercial conduct no matter how unrelated to the cause of action in question. Because the GGFF employees’ employment-based claims are not related to Alberta Pork’s commercial activities, Alberta Pork is immune from jurisdiction. By contrast, we conclude that the district court correctly exercised jurisdiction over FFF because FFF does not meet the statutory definition of a foreign state and thus is afforded no protection from the Foreign Sovereign Immunities Act. AFFIRMED in part, REVERSED in part, and REMANDED. Each party to bear its own costs. . The cases that the GGFF employees cite are not relevant. The GGFF employees maintain that the defendants are not organs of a foreign state because \"instrumentalities and agencies are accorded a presumption of independence from foreign states.\" However, there is no presumption of independence when considering the threshold question of whether an entity is a foreign state for purposes of the Act; rather, such a presumption comes into play only when courts must determine whether to impute the misdeeds of a government agency to the government itself." }, { "docid": "5475649", "title": "", "text": "in some commercial conduct no matter how unrelated to the cause of action in question. Because the GGFF employees’ employment-based claims are not related to Alberta Pork’s commercial activities, Alberta Pork is immune from jurisdiction. By contrast, we conclude that the district court correctly exercised jurisdiction over FFF because FFF does not meet the statutory definition of a foreign state and thus is afforded no protection from the Foreign Sovereign Immunities Act. AFFIRMED in part, REVERSED in part, and REMANDED. Each party to bear its own costs. . The cases that the GGFF employees cite are not relevant. The GGFF employees maintain that the defendants are not organs of a foreign state because \"instrumentalities and agencies are accorded a presumption of independence from foreign states.\" However, there is no presumption of independence when considering the threshold question of whether an entity is a foreign state for purposes of the Act; rather, such a presumption comes into play only when courts must determine whether to impute the misdeeds of a government agency to the government itself. As the Fifth Circuit explained: The use of the single term \"agency” for two purposes in the context of this case may cause some confusion. The [Act] uses it to determine whether an \"agency” of the state may potentially qualify for foreign sovereign immunity itself under the [Act]. This is a completely different question from that which we must address here: whether or not the [National Grains Production Co.] enjoyed an alter ego relationship with the Federal Republic of Nigeria so that it could bind Nigeria to a contract. ... [T]he level of state control required to establish an \"alter ego” relationship is more extensive than that required to establish [Act] agency. Hester Int’l Corp. v. Federal Republic of Nigeria, 879 F.2d 170, 177 n. 5 (5th Cir.1989). . In addition, Alberta Pork does more than just buy and sell hogs; it also carries on educational activities and supports research in the swine industry. Alta.Reg. 195/68, § 3(3)(c). . This is because each subsidiary would be owned by an agency or instrumentality. . Consequently, we" }, { "docid": "5475632", "title": "", "text": "hog producers are the only persons eligible to become directors of Alberta Pork. Alta.Reg. 195/68, § 10. Consequently, the GGFF employees conclude that Alberta Pork is an agent of hog producers, not of the Province. We reject the GGFF employees’ arguments. Congress’ statement in the legislative history that a “state trading company” and “an export association” can be “organs” of a foreign state indicates Congress’ belief that an entity’s involvement in commercial affairs does not automatically render the entity non-governmental. This conclusion is especially sound here given that the purpose of the entity in question is to advance the Province of Alberta’s interest in marketing Alberta hogs. Id. § 3(1). Finally, that the Province is not directly involved in the day-to-day activities of Alberta Pork does not mean that it is not exercising control over the entity, especially, as here, where the Province’s laws and regulations narrowly circumscribe the entity’s ability to act independently. Consequently, we conclude that Alberta Pork is an agency or instrumentality of the Province of Alberta. B The clear language of the Act does not allow us to reach the same conclusion with respect to FFF, however. To recap, the Act provides that a “foreign state” includes an “agency or instrumentality of a foreign state.” 28 U.S.C. § 1603(a). To be an “agency or instrumentality,” the entity must either be an “organ of a foreign state” or have a majority of its shares owned by “a foreign state or political subdivision thereof.” 28 U.S.C. § 1603(b). FFF, an ordinary pork processing plant, cannot be considered an “organ” of the Province of Alberta. Thus, FFF can be an agency or instrumentality only if a majority of its shares is owned by “a foreign state or political subdivision thereof.” FFF is wholly owned by Alberta Pork. Alberta Pork, we have just concluded, is an agency or instrumentality of a foreign state. Thus, FFF is wholly owned by an agency or instrumentality of a foreign state; however, FFF is not owned by “a foreign state or political subdivision thereof,” as required by the statute. One might argue that once" }, { "docid": "5475627", "title": "", "text": "Alberta Pork and FFF are not “foreign states” within the meaning of the Act, and thus can gain no protection from it. Assuming that the defendants are foreign states, the parties next dispute whether the defendants are nonetheless subject to jurisdiction because they fall into the Act’s commercial activities exception. We examine these contentions in turn. Ill The Foreign Sovereign Immunities Act provides immunity only for “foreign states.” 28 U.S.C. § 1604. The Act defines a foreign state to include any “agency or instrumentality of a foreign state.” 28 U.S.C. § 1603. In order for an entity to be considered an “agency or instrumentality,” three requirements must be met. First, the entity must be a separate legal person. Second, the entity must not be a citizen of the United States nor be created under the laws of any third country. Finally, the entity must be either “an organ” of the foreign state or political subdivision thereof, or a majority of its shares must be owned by the foreign state or political subdivision thereof. 28 U.S.C. § 1603(b). The parties agree that the defendants satisfy the first and second requirements. Therefore, the issue before us is whether or not they are “organs” of a foreign state or political subdivision thereof, or majority-owned by a foreign state or political subdivision. The Act’s legislative history suggests that Congress intended the terms “organ” and “agency or instrumentality” to be read broadly. The House Report states that: entities which meet the definition of an “agency or instrumentality of a foreign state” could assume a variety of forms, including a state trading corporation, a mining enterprise, a transport organization such as a shipping line or airline, a steel company, a central bank, an export association, a governmental procurement agency or a department or ministry which acts and is suable in its own name. H.R.Rep. No. 94-1487, 94th Cong. 2nd Sess. (1976), reprinted at 1976 U.S.C.C.A.N. 6604, 6614. The case law provides us with little guidance because most of the eases discussing this issue involve entities owned by socialist governments. See, e.g., Yessenin-Volpin v. Novosti Press Agency," }, { "docid": "21064716", "title": "", "text": "other defendants are thus “foreign states” within the meaning of the Foreign Sovereign Immuni ties Act of 1976 (F.S.I.A.), 28 U.S.C. §§ 1330, 1602-1611. See Lopez v. Gobierno de la Capital v. Betterroads Asphalt Corp., 855 F.Supp. 34, 35 (D.Puerto Rico 1994) (entities the majority of whose shares or other ownership interest is owned by a foreign state are themselves considered “foreign states.”). The issue before the Court is whether, according to the facts of the instant case, FOGADE and the other defendants are entitled to sovereign immunity pursuant to the F.S.I.A. The F.S.I.A. provides the exclusive source for obtaining jurisdiction over foreign states in United States courts. “Under the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 1476, 123 L.Ed.2d 47 (1993). Plaintiff claims that FOGADE is subject to jurisdiction because it falls within the purview of the commercial activity exception to sovereign immunity. 28 U.S.C. § 1605. The burden-shifting framework to analyze a sovereign immunity defense is as follows. Sovereign immunity is an affirmative defense and as such the foreign state bears the ultimate burden of proving, by a preponderance of the evidence, immunity. See Meadows v. Dominican Republic, 817 F.2d 517, 522 (9th Cir.1987), cert. denied, 484 U.S. 976, 108 S.Ct. 486, 487, 98 L.Ed.2d 485 (1987). Initially, there exists a presumption that “actions taken by foreign states or their instrumentalities are sovereign acts and thus are protected from the exercise of our jurisdiction, unless one of the F.S.I.A.’s exceptions to immunity applies.” Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). The opposing party then bears the burden of moving forward by producing evidence that there is an applicable exception to sovereign immunity. Id. Once that burden is met, the burden then shifts to the foreign state who “bears the burden of proving" }, { "docid": "5475636", "title": "", "text": "6614 (emphasis added). Indeed, our reluctance to put words in Congress’ mouth is especially justified here because Congress seemed exceedingly conscious of the distinction between foreign states, political subdivisions, and agencies or instrumentalities of foreign states and political subdivisions. It could easily have stated that an entity must be owned by a foreign state, a political subdivision or an agency or instrumentality of a foreign state or political subdivision. It did not. Moreover, a contrary reading of the statute could expand immunity far beyond what Congress intended. As it is written, the Act provides potential immunity to entities that are either organs of a foreign state or political subdivision thereof or have a majority of shares owned by the foreign state or political subdivision. To add to that list entities that are owned by an agency or instrumentality would expand the potential immunity considerably because it would provide potential immunity for every subsidiary in a corporate chain, no matter how far down the line, so long as the first corporation is an organ of the foreign state or political subdivision or has a majority of its shares owned by the foreign state or political subdivision. Although such a broad view of sovereign immunity may very well be desirable, we cannot assume that Congress intended such a result when a literal reading of the statute leads to the opposite conclusion. In sum, we hold that Alberta Pork is an agency or instrumentality under the Act and thus is immune from jurisdiction unless one of the Act exceptions applies. However, FFF cannot be considered an agency or instrumentality and thus is entitled to no protection from the Act. IV As an agency or instrumentality of a foreign state, Alberta Pork is entitled to immunity unless it falls into one of the Foreign Sovereign Immunities Act’s exceptions to immunity. Once a plaintiff offers evidence that an Act exception applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th" }, { "docid": "5475645", "title": "", "text": "because Alberta Pork engaged in a commercial activity. Rather, jurisdiction is proper only if the GGFF employees’ legal claims are based upon the commercial activity in question. See Saudi Arabia v. Nelson, — U.S. —, —, 113 S.Ct. 1471, 1477, 123 L.Ed.2d 47 (1993). The GGFF employees allege five claims under COBRA, ERISA, and WARN. All of these claims arose out of GGFF’s termination of the GGFF employees’ health care coverage and termination of the GGFF employees’ employment. Thus, in order to assert jurisdiction over Alberta Pork, we must conclude that Alberta Pork engaged in a commercial activity that forms the basis for the GGFF employees’ employment-based claims. This we are unable to do. Alberta Pork can be seen as engaging in two types of commercial activities. First, Alberta Pork sells hogs to pork processors in the United States. This commercial activity is not a sufficient basis for jurisdiction, however, because hog sales are unrelated to the GGFF employees’ employment claims. Second, Alberta Pork owned, through subsidiaries, GGFF. Although such ownership could provide a basis for jurisdiction if it were determined that Alberta Pork was involved in the employment decisions in controversy, mere stock ownership, without more, does not create any relationship to the GGFF employees’ claims, especially given the Act’s presumption that separate juridical entities are to be treated as such. The record contains no evidence to suggest that Alberta Pork was involved in GGFF’s decision to cancel its Plan and to close its plant. There is no evidence that GGFF shared officers and directors with Alberta Pork. Nor is there any evidence that Alberta Pork participated in any decisions concerning GGFF’s operations. Thus, we conclude that because Alberta Pork’s commercial activities are unrelated to the GGFF employees’ claims, Alberta Pork does not fall into the Act’s commercial activities exception. y Finally, the GGFF employees contend that Alberta Pork has waived its immunity. The Act provides that a foreign state shall not be immune from the jurisdiction of United States courts if “the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the" } ]

[ { "docid": "4489509", "title": "", "text": "central issue of this case which is whether Nalley was entitled to recover administrative expenses under section 507(b) of the Bankruptcy Code. This administrative expense claim is based on the insufficiency of adequate protection in covering the post-petition diminution in value of the trucks furnished by Paccar and used by the estate. Under Grundy Nat’l Bank, this is a separate claim from a deficiency claim. B. Entitlement to Administrative Expense Claim 1. Benefit to Bankruptcy Estate In addition to contending that Nalley’s claim is barred by failure to comply with state law, the Trustee also raises several arguments alleging that Nalley failed to establish a valid administrative expense claim. First, the Trustee argues that a pre-petition secured creditor cannot elevate his claim to a super-priority administrative expense claim just because the debtor used the property post-petition and adequate protection proved to be inadequate. The Trustee insists that in order for a claim to qualify as an “actual, necessary cost and expense of preserving the estate” under 11 U.S.C. § 503(b), the creditor must establish that there has been an actual, concrete benefit to the estate on account of a transaction with the debtor which is beneficial to the estate. App.Br. at 44-46, citing In re Subscription Television, 789 F.2d 1530 (11th Cir.1986); In re James B. Downing & Co., supra; In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984); and In re Advisory Info. and Management Sys., Inc., 50 B.R. 627 (Bankr.M.D.Tenn.1985). The Trustee alleges further that mere continued use of collateral by a debtor-in-possession is not enough to establish an administrative expense claim because such a claim requires the advancement of goods or services pursuant to a post-petition transaction. Based on these principles, the Trustee argues that Nalley has only a deficiency claim on the installment contracts because its predecessor-in-interest, Paccar, did not provide any new value to the estate after the imposition of the automatic stay. However, this case does involve a post-petition transaction beneficial to Debtor’s estate rather than a mere continued use of the trucks by Debtor. Paccar consented to forgoing foreclosure on its secured collateral" } ]

[ { "docid": "118974", "title": "", "text": "that “[bjefore or at the time of each payment to creditors under the plan, there shall be paid — (1) any unpaid claim of the kind specified in section 507(a)(1) of this title ....” 11 U.S.C. § 1326(b)(1). The statute permits a court the option of ordering complete payment of allowed administrative expense claims in front of other creditors, or ordering their payment “at the time of’ payment to other creditors. Meanwhile, section 1322(a)(2) says that a plan shall “provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title ....” 11 U.S.C. § 1322(a)(2). Reading the two sections in pari materia, as one must in construing competing sections of a coherent statutory scheme, the actual payout of claims having priority under section 507 can occur along with payments to creditors under the plan. Most courts agree with this reading of section 1326(b)(1). See In re Moses, 293 B.R. 711, 718 (Bankr.E.D.Mich.2003); In re Pappas & Rose, P.C., 229 B.R. 815, 820 (W.D.Okla.1998); In re Cook, 205 B.R. 437, 443 (Bankr.N.D.Fla.1997); In re Cason, 190 B.R. 917, 933 (Bankr.N.D.Ala.1995); In re Barbee, 82 B.R. 470, 473 (Bankr.N.D.Ill.1988); In re Parker, 21 B.R. 692, 694 (E.D.Tenn.1982); but see In re Harris, 304 B.R. 751, 757-58 (Bankr.E.D.Mich.2004). The secured creditors’ position that their distributions cannot be altered by the satisfaction of the debtors’ attorneys’ fees rests on their assumption that these distributions represent a form of adequate protection. In this court’s view, however, that position is not sustainable. See In re Cook, supra (adequate protection is what is paid to creditor to compensate for depreciation in collateral value prior to confirmation). Plan payments to secured creditors, by design, are, in essence, a device by which the collateral is redeemed by the debtor, by substituting for that collateral a stream of payments having a present value equal to the allowed amount of the creditor’s secured claim. See 11 U.S.C. §§ 1325(a)(5)(B); 506(a); see also In re Stembridge, 394 F.3d 383, 387 (5th Cir.2004) (holding that “allowed secured claim” in this section is determined" }, { "docid": "11853383", "title": "", "text": "to receive its claim value payment beginning with the first payment and throughout the duration of the plan conflicts with the provision of the Code requiring priority treatment of administrative expenses. Further, the dangers of abuse that precipitated the amendments to § 1325 are not inherent under this interpretation of the statute. Since Marquette is receiving adequate protection payments in the amount of depreciation while the administrative claims are covered, it will not be left holding the bag for any loss in value of the collateral if the plan should later fail or become converted to a chapter 7 case. Marquette is not injured by the plan so long as it is receiving these monthly payments equal to the collateral’s depreciation. Note that the Debtor is required to make equal monthly payments to the plan by § 1325(a)(5)(B)(iii), not to a particular creditor. Moreover, the trustee is not obligated to disburse equal monthly payments to the creditor because of the trustee’s duty to pay priority claims. See Erwin, 376 B.R. at 902 (noting that accelerated payment of attorney’s fees is expressly authorized by the Code, stating that a chapter 13 trustee has independent authority to administer a plan in holding that the trustee is not bound by the equal payment provision of § 1325 and finding that accelerated payment of debtors’ attorney’s fees was not intended to be precluded by the equal monthly payment provision). Therefore, Marquette’s objection relating to it receiving equal periodic payments under the Debtor’s plan is overruled. There is no requirement in § 1326 that the plan payments to the creditor start in month one. Such cannot be contemplated since payment of priority payments under §§ 1326(b), 507(a)(2), and 503(b) of attorney’s fees and trustee’s fees will necessarily reduce the creditors’ take in the initial stage of the plan as they have to be paid “before or at the time of each payment to creditors.” 11 U.S.C. § 1326(b). Section 1325(a)(5)(B)(iii) at (I) provides that periodic payments be made to the plan in equal monthly amounts; at (II) that provision requires conversely that adequate protection payments" }, { "docid": "5630457", "title": "", "text": "PER CURIAM: Upon consideration of the appellant’s Petition for Rehearing, the panel has concluded that the original opinion at 991 F.2d 682 (11th Cir.1993) be amended by adding the following paragraphs immediately following the final paragraph of Part II.A: The Trustee’s reliance on § 361(3) is misplaced. Section 361(3) states that adequate protection required under section 362, 363, or 364 may be provided by “granting such other relief, other than entitling such entity to compensation allowable under section 503(b)(1) of this title as an administrative expense, as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property.” 11 U.S.C. § 361(3) (emphasis added). Although this language, at first blush, seems to contradict the allowance of such an administrative expense claim as in § 507(b), the legislative history of § 361(3) clarifies the issue. Section 361(3) prohibits only the granting of an administrative expense claim as adequate protection as an initial matter. In drafting this provision, Congress was concerned about undersecured creditors being lured into forgoing the right to foreclose on collateral by the illusory promise of an administrative expense claim, when the estate’s assets would later prove to be insufficient to make such payments. 124 Cong.Rec. 32,395 (1978) (“In every case there is the uncertainty that the estate will have sufficient property to pay administrative expenses in full.”). Hence, the goal of § 361(3) is to protect creditors, not debtors, and its prohibition applies only to the initial form of adequate protection allowed. Despite this ex ante prohibition on the use of an administrative expense claim, it is specifically allowed as a remedy for the later failure of the adequate protection granted. The legislative history reinforces this construction: “To the extent the protection proves to be inadequate after the fact, the creditor is entitled to a first priority administrative expense under section 503(b).” Id. (emphasis added). Section 507(b) thus implies that an administrative expense claim under § 503(b) will be allowed where adequate protection payments prove insufficient to compensate a secured creditor for the diminution in the value of its collateral." }, { "docid": "7664325", "title": "", "text": "of the value of the collateral to the secured creditor. Therefore, it suggested that a secured creditor could seek to have the deficiency considered as an administrative expense with priority over the other unsecured creditors. 247 B.R. at 909 (citing 11 U.S.C. § 507(a)(1), (b)). . In 2005, Congress amended section 1325(a)(5)(B) to specifically provide that the holder of a secured claim “retain[s] the lien securing such claim until the earlier of (aa) the payment of the underlying debt determined under nonbankruptcy law; or (bb) discharge under section 1328.” The new 1325(a)(5)(B)(i) also provides that if a chapter 13 case is \"dismissed or converted without completion of the plan, such lien shall also be retained by such holder to the extent recognized by applicable nonbankruptcy law.” BAPCPA, Pub.L. No. 109-8, §§ 306(a), 1501, 119 Stat. 80, 216. . See, e.g., 8 COLLIER ON BANKRUPTCY ¶ 1329.04[1], 1329-8 through 1329-9 (15th ed. rev.2004). But see 5 NORTON BANKR. L. & PRAC. 2D § 124:3, n. 94 (\"Mere dismissal of the applicability of the rule of res judica-ta to a secured claim dealt with by a confirmed plan is unconvincing, for it appears that both creditor and debtor should be able to rely on the confirmed plan’s treatment of the claim, subject only to possible modification of the ’amount’ or the ‘time’ of payments on the secured claim.”). . We share the Trustee's concern that there may be cases in which a portion of the deficiency is the result of damage done to the collateral by the creditor or its agents in the course of, or following, repossession of the collateral. The Trustee believes Daimler-Chrysler’s repossession of the Neon caused the broken steering column and led to the vehicle being sold at auction for only $800, but there is no evidence in the record before us proving this. However, secured creditors should not assume that our decision herein allows them to \"run up” the amount of the remaining deficiency through the reckless or careless actions of a repossession agent. We decline to rule whether the bankruptcy court may take damage done to" }, { "docid": "21848123", "title": "", "text": "are limited by the secured creditor’s entitlement to “adequate protection” of the value of its collateral. See 11 U.S.C. §§ 362(d)(1), 363(e). Adequate protection is designed to protect a secured creditor, in this instance Volvo, against any decrease in the value of its collateral which may result from depreciation, destruction, or the debtor’s use of the collateral. See id. § 361; Lend Lease v. Briggs Transp. Co. (In re Briggs Transp. Co.), 780 F.2d 1339, 1344 (8th Cir.1985); In re Raymond, 99 B.R. 819, 821 (Bankr.S.D.Ohio 1989); In re Kain, 86 B.R. 506, 513 (Bankr.W.D.Mich.1988). Under § 361, adequate protection may be provided to a secured creditor: by “requiring the trustee to make a cash payment or periodic cash payments” to the creditor, by granting the creditor “an additional or replacement lien,” or by “granting such other relief, other than entitling [the creditor] to compensation allowable under section 503(b)(1) ... as an administrative expense, as.will result in the realization by such [creditor] of the indubitable equivalent of such [creditor’s] interest in such property.” 11 U.S.C. § 361 (emphasis added). Importantly, while adequate protection may be required under at least three sections of the Bankruptcy Code, §§ 362, 363 and 364, adequate protection may not be awarded solely through the grant of an administrative expense claim under § 503(b)(1)(A). As explained, in pertinent part, by Judge Lundin: There is nothing in § 503 remotely suggesting that administrative expense priority was intended as an optional remedy to adequate protection of a secured claimholder’s interest in property of the estate. A secured creditor is protected against depreciation of collateral during the reorganization period through various other provisions of the Bankruptcy Code. Under 11 U.S.C. §§ 361 and 362 adequate protection of the creditor’s interest may be required through periodic cash payments, replacement liens, or other relief except the granting of a § 503(b)(1) administrative expense. [When a secured creditor fails to exercise available adequate .protection remedies], it may not [later] advantage itself through [a] back door request for an administrative expense. In re Advisory Info. & Mgmt. Sys., Inc., 50 B.R. at 629-31" }, { "docid": "23097628", "title": "", "text": "him to pay the secured creditors as required by the plan and to satisfy § 1326. A plan can be confirmed only if it meets those requirements. 11 U.S.C. § 1325(a)(1). Beginning with the first payment, the trustee should have enough money to make the required payments on secured claims and to make a partial payment of administrative expenses. The payment of administrative expenses may delay payment on other unsecured claims, none of which could have priority over administrative expenses. The trustee is not required to defer the payment of administrative expenses to the payment of secured claims. He could pay administrative expenses in full before making any payment on secured claims. Section 1326 allows that. The secured creditors could not object that the delay in payment would deprive them of “adequate protection”. 11 U.S.C. §§ 361 & 363(e). A chapter 13 plan is confirmed on the assumption that it will be successfully completed and on the finding that it is likely to be successfully completed. 11 U.S.C. § 1325(a)(6). If a non-assenting secured creditor is dealt with as provided in § 1325(a)(5), then its property interest is adequately protected by the plan’s provisions for payment of the total value of the interest, even though payment will be made in installments. See also 11 U.S.C. § 1327. Adequate protection is no longer relevant to how much the installment payments should be, and priority of payment relative to other claims is generally controlled by the bankruptcy statute. Of course, it is possible that a plan will not be successful. If payment on a secured claim is delayed, the holder runs the risk that the payments it receives up to the time the plan aborts will be less than the depreciation of the collateral. That is one reason why the trustee begins payment on secured claims immediately. But the problem is one that should be, and in this court is, considered before or at the time of confirmation. See In re Lewis, 8 B.R. 132 (Bkrtcy.D.Idaho 1981); In re Brock, 6 B.R. 105 (Bkrtcy.N.D.Ill.1981). In re Lum, 1 B.R. 186, 5 B.C.D." }, { "docid": "18982591", "title": "", "text": "confirmation and valuation rules.” Id. at 244. MRC and Marathon should not be considered third parties for the purposes of mootness analysis in this appeal any more than in the prior appeal of the confirmation order. Third and finally, so long as there is the possibility of “fractional recovery,” the Noteholders need not suffer the mootness of their claims. Based on Pacific Lumber, the Notehold-ers’ appeal is not subject to dismissal for equitable mootness. C. § 507(b) Claim The Noteholders contend that the bankruptcy court erred in fixing the value of their § 507(b) claim. This court has explained that adequate protection of a secured creditor’s collateral and its fallback administrative priority claim are tradeoffs for the automatic stay that prevents foreclosure on debtors’ assets: the debtor receives “breathing room” to reorganize, while the present value of a creditor’s interests is protected throughout the reorganization. In re Stembridge, 394 F.3d 383, 387 (5th Cir.2004). A secured creditor whose collateral is subject to the automatic stay may first seek adequate protection for diminution of the value of the property, 11 U.S.C. §§ 362(d)(1), 363(e), 364(d), and then, if the protection ultimately proves inadequate, a priority administrative claim under § 507(b). Section 507(b) of the Bankruptcy Code allows an administrative expense claim under § 503(b) where adequate protection payments prove insufficient to compensate a secured creditor for the diminution in the value of its collateral. “It is an attempt to codify a statutory fail-safe system in recognition of the ultimate reality that protection previously determined the ‘indubitable equivalent’ ... may later prove inadequate.” In re Carpet Ctr. Leasing Co., Inc., 4 F.3d 940, 941 (11th Cir.1993) (internal quotation marks and citations omitted). On six occasions, the bankruptcy court entered orders authorizing Scopac to use the Noteholders’ and Bank of America’s cash collateral to operate its business and preserve the estate, and in each order it required Scopac to provide adequate protection under § 363(e). At issue is the extent of that protection. 1. Timber Sales Proceeds The Noteholders first argue that the bankruptcy court erred when it declined to recognize their lien" }, { "docid": "18982597", "title": "", "text": "507(b) claim. The proceeds that came into the estate during the bankruptcy, discussed above, were almost entirely consumed by professional fees and related expenses incurred by the estate, the creditors’ committees, and the Noteholders. These payments were authorized by the cash collateral orders. The basis for the payments to the Noteholders’ professionals was the Note-holders’ lien on those proceeds. By denying the Noteholders’ claim on the proceeds, the bankruptcy court effectively charged the Noteholders for all of these expenses, including those incurred by the estate and the committees. It then deducted the Noteholders’ own professionals’ fees, for a second time, from the amount that remained. This was clear error. The result of this re-evaluation of the cash collateral portion of the § 507(b) motion is as follows: Cash Collateral at date of bankruptcy: $48.7 million Net timber sales proceeds: (Bank of America higher lien): $36.2 million Net interest in cash collateral: = $42.2 million (Payment under MRC/Marathon Plan for cash collateral) -$ 3.6 million (Payment to Noteholders’ professionals from timber proceeds) -$ 8.9 million Net owed for § 507(b) adequate protection $29.7 million The Noteholders were entitled to receive an additional $29.7 million in payment of their administrative priority claim. 3. Declining Value of Collateral Finally, the Noteholders assert a claim for an alleged post-petition decline in the value of their secured interest in Scopac’s timberland between the date of filing and the date of the hearing. They claim that the bankruptcy court erred in its determination that the property did not, in fact, decline in value. The bankruptcy court’s first error, they assert, was to compare the timberland’s foreclosure value at the petition date to its fair-market value at the date of confirmation, which had the effect of obscuring the decline in the value of the property. An asset’s foreclosure value is typically lower than its fair-market value. Assocs. Commer. Corp. v. Rash, 520 U.S. 953, 958, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997) (explaining that fair-market value is “generally higher than what a secured creditor could realize pursuing ... foreclosure .... ”). In general, when valuing a secured" }, { "docid": "9031491", "title": "", "text": "concurrent payment of attorneys' fees and adequate protection payments may be allowed because legitimate adequate protection payments would constitute an administrative expense entitled to similar priority as attorneys' fees, payments to a secured creditor exceeding the amount required for adequate protection before payment in full of attorneys' fees would violate section 1326(b). 340 B.R. at 799. Reasoning that it is \"mathematically impossible\" to require equal monthly payments throughout the term of the plan, including the period of adequate protection, the DeSardi court concluded that the \"equal monthly amount\" requirement in section 1325(a)(5) did not apply to adequate protection payments. 340 B.R. at 809. This court finds no such conflict between 1325(a)(5)(B)(iii) and section 1326(b). Section 1326(b) only requires payment of allowed administrative expenses \"[b]efore or at the time of each payment to creditors under the plan.\" 11 U.S.C. § 1326(b) (emphasis added). Clearly, that section permits creditors to be paid concurrently with administrative expenses. Under DeSardi 's interpretation, however, the phrase \"or at the time of\" is reduced to surplusage. Had Congress intended to require one class of claims to be paid in full prior to another it easily could have said so, structuring section 1326 like section 726 to specify the order of distribution. Nor does concurrent payment of administrative expenses violate priority rules as the Bankruptcy Code requires only that priority claims be paid in full over the course of a Chapter 13 plan. Section 1322(a)(2) only requires the plan \"provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim.\" 11 U.S.C. § 1322(a)(2). Finally, section 1326(b) is not structured to fully implement the priority scheme of section 507, as it references only administrative expenses and trustee fees and not all priority claims. Administrative expenses and trustee fees by their nature accrue post-petition and are likely to continue accruing post-confirmation. Section 1326 requires that those charges not be subordinated or deferred pending payment of other claims as it clarifies that they can" }, { "docid": "12924811", "title": "", "text": "payments under General Order 32), the current trustee fee of 5% would have to be deducted ($5.80), leaving $63.20 to pay the remaining administrative fees, which include the attorney “kicker fee.” In this case, the kicker fee is $1000. This is the amount that would need to be paid before any payments were made to creditors under the plan. At $63.20 per month, the kicker fee would be paid in approximately 18 months, at which time the regular monthly payments to the creditors could begin. In the mean time, payment for the depreciation of the creditor’s property is provided by the adequate protection payments that are required by the code. The Court finds that this is the proper application of § 1326(b) with regard to the timing of the trustee’s requirement to pay certain administrative claims before or at the time of payments to creditors. Considering the Court’s finding that adequate protection payments continue until the trustee is able to make the proposed plan payments, the priority of adequate protection payments in relation to administrative expenses must be addressed. At least one court has found that the payment of adequate protection payments after confirmation is in the nature of an administrative expense under § 503(b)(1). See DeSardi, 340 B.R. at 799 (finding that “actual, necessary costs and expenses of preserving the estate” under § 503(b)(1) includes adequate protection payments). If adequate protection payments are necessary costs of preserving the estate under § 503(b)(1), and § 507(a)(2) refers to “administrative expenses allowed under section 503(b),” then the § 503(b)(1) administrative claims would have priority over the § 503(b)(2) administrative claims, which include the attorney fees. In that instance, the adequate protection payments would be paid prior to the remaining administrative fees. While in agreement with the ultimate holding of the DeSardi court, another court disagreed with the finding that adequate protection payments were administrative priority claims. It recognized that if the debtor retains the creditor’s personal property collateral, the debtor must pay adequate protection because it is a requirement of § 1326(a)(1)(C) and § 1325(a)(5)(B)(iii). Hill, 397 B.R. at 271. According" }, { "docid": "7664336", "title": "", "text": "to fault of debtor, creditor may object to § 502(j) modification for lack of good faith); In re Johnson, 247 B.R. 904, 908-09 (Bankr.S.D.Ga.1999). Furthermore, when a reconsideration under § 502(j) renders a deficiency as unsecured, a creditor may be entitled to an administrative-expense claim for failure of adequate protection, which “has priority over unsecured claims and is paid in full. 11 U.S.C. § 507(a)(1) & (b).” Id. at 909. Finally, I believe that the plain language of § 506(a) necessitates the conclusion that any deficiency remaining after the secured creditor has initiated a sale of collateral must not be treated as a secured claim, and therefore must be reconsidered under § 502(j). Section 506(a) provides: An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. 11 U.S.C. § 506(a) (emphasis added). The Supreme Court has repeatedly cited § 506(a) as the basis for the tenet that a claim is secured only to the extent that it is secured by an interest in collateral. See, e.g., Till v. SCS Credit Corp., 541 U.S. 465, 470 n. 5, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004); Assocs. Commercial Corp. v. Rash, 520 U.S. 958, 956, 960, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997). To hold otherwise, as the majority does, would turn the definition of a secured claim on its head. The" }, { "docid": "21848135", "title": "", "text": "a debtor-in-possession is prohibited from using cash collateral unless the secured creditor with an interest in the collateral consents or unless the court authorizes its use. 11 U.S.C. § 363(c)(2). Cash collateral is not involved in this appeal. . Under § 507(b), a creditor who has received adequate protection, either through court order or consent agreement, may subsequently become entitled to a \"superpriority” administrative claim if the protection received eventually proves insufficient. See Grundy Nat'l Bank v. Rife, 876 F.2d 361, 363-64 (4th Cir.1989) (Section 507(b) \"converts a creditor’s claim where there has been a diminution in the value of a creditor's secured collateral by reason of a § 362 stay into an allowable administrative expense claim under § 503(b).”). An administrative claim awarded under § 507(b) \"must be predicated upon an affirmative grant of adequate protection to a creditor.” Zions Credit Corp. v. Rebel Rents, Inc. (In re Rebel Rents, Inc.), 291 B.R. 520, 534 (Bankr.C.D.Cal.2003). This fact distinguishes administrative claims awarded under § 507(b) from cases where § 503 is proffered as an alternative to adequate protection. Creditors who are awarded administrative claims under § 507(b) have utilized the statutory procedures for obtaining adequate protection of their interests. See Bonapfel v. Nalley Motor Trueles (In re Carpet Center Leasing Co.), 991 F.2d 682, 687 (11th Cir.1993), reh’g denied, 4 F.3d 940 (11th Cir.1993), cert. denied, 510 U.S. 1118, 114 S.Ct. 1069, 127 L.Ed.2d 388 (1994). Rather than \"merely sitting back and allowing the [d]ebtor to continue using the [collateral],” these creditors have asserted their “undeniable right to repossession and agreed to forgo repossession only after ... [the debtor] consented to paying adequate protection.” Id. Further, an administrative claim awarded under § 507(b) likely represents an \"actual and necessary” cost of preserving the debtor's estate because the debtor presumably sought to retain possession of the collateral by agree ing to make adequate protection payments to the creditor. Id. {“The negotiation for continued possession of the [collateral] in return for adequate protection is a post-petition transaction providing new value to the bankruptcy estate. [A debtor’s] efforts to retain the [collateral]" }, { "docid": "5630458", "title": "", "text": "right to foreclose on collateral by the illusory promise of an administrative expense claim, when the estate’s assets would later prove to be insufficient to make such payments. 124 Cong.Rec. 32,395 (1978) (“In every case there is the uncertainty that the estate will have sufficient property to pay administrative expenses in full.”). Hence, the goal of § 361(3) is to protect creditors, not debtors, and its prohibition applies only to the initial form of adequate protection allowed. Despite this ex ante prohibition on the use of an administrative expense claim, it is specifically allowed as a remedy for the later failure of the adequate protection granted. The legislative history reinforces this construction: “To the extent the protection proves to be inadequate after the fact, the creditor is entitled to a first priority administrative expense under section 503(b).” Id. (emphasis added). Section 507(b) thus implies that an administrative expense claim under § 503(b) will be allowed where adequate protection payments prove insufficient to compensate a secured creditor for the diminution in the value of its collateral. “It is an attempt to codify ‘a statutory fail-safe system in recognition of the ultimate reality that protection previously determined the “indubitable equivalent” ... may later prove inadequate.’ ” In re Becker, 51 B.R. 975, 979 (Bankr.D.Minn. 1985) (quoting In re Marine Optical, Inc., 10 B.R. 893, 894 (Bankr.D.Mass.1981)). This construction of the Code makes clear that Nalley’s claim for administrative expenses arose, not from any deficiency claim based on the underlying pre-petition obligation, but entirely under § 503(b) as an post-petition “actual, necessary eost[] and expense[] of preserving the estate.” 11 U.S.C. § 503(b). Consequently, the bankruptcy court and the district court correctly held that compliance with state law is irrelevant to the allowance of a claim for administrative expenses under § 507(b). Except as above amended, the original opinion shall remain in full force and effect. The Petition for Rehearing is DENIED and no member of this panel nor other Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules" }, { "docid": "22176551", "title": "", "text": "and also “as is,” at 163,90o. In its view, substantial depreciation, independent of the accident, has taken place. The court values the collateral as of June 5 at $68,900. Subtracting costs of repair in the amount of $7,097 leaves $61,803. Hence, the collateral has dwindled in worth by $67,197. At least four factors account for this decrease. The uninsured loss equals $19,411. Error in the stipulation is responsible for $33,447. Market forces caused a loss of $7,993. Use caused a loss of $6,346. Because of the error in the stipulation, the allowed secured claim on January 23 was $95,553, not $106,248. The allowed secured claim on June 5 was $61,-803, for a reduction of $33,750. These facts raise several issues which may be classified under the headings of statutory construction, allowance, and rank. Under statutory construction: May a creditor ineligible for an administrative claim under 11 U.S.C. Section 503(b) qualify for superpriority status under 507(b)? Under allowance: Are losses caused by failure to obtain insurance, an error in the stipulation, market forces, and depreciation recompensable under 507(b)? Under rank: Does the superpriority take precedence over interim fees under 331? Under what, if any, circumstances may fees be paid notwithstanding the existence of or potential for a su-perpriority? These questions are discussed below. IS THE SUPERPRIORITY AN ADMINISTRATIVE EXPENSE OR SOMETHING MORE? The superpriority provision is found in 507(b) which states: If the trustee, under Section 362, 363, or 364 of this title, provides adequate protection of the interest of a holder of a claim secured by a lien on property of the debtor and if, notwithstanding such protection, such creditor has a claim allowable under subsection (a)(1) of this section arising from the stay of action against such property under Section 362 of this title, from the use, sale, or lease of such property under Section 363 of this title, or from the granting of a lien under Section 364(d) of this title, then such creditor’s claim under such subsection shall have priority over every other claim under such subsection. 11 U.S.C. Section 507(a)(1) gives priority to “expenses allowed under" }, { "docid": "23097627", "title": "", "text": "the statute must be read in light of the rights of secured creditors. Administrative expenses are a priority “unsecured” claim. In a sense, secured claims may be said to have “priority” over all unsecured claims because they are different in kind. Though Credithrift is not the holder of a secured claim in this case, the court thinks it best to consider the argument in order to have a complete exposition of how the trustee can make payments. A secured claim represents the holder’s rights in specific property. The holder of a secured claim generally must receive out of the bankruptcy estate the property or its value up to the amount of the secured debt. 11 U.S.C. § 506(a), (b), & (c). The holder of an allowed secured claim has not just a general claim but property which it is entitled to receive. 9A Am.Jur.2d, Bankruptcy § 689 (1980). In that sense, secured claims are first priority claims in bankruptcy cases. In any chapter 13 case, the debtor’s payments to the trustee must be enough for him to pay the secured creditors as required by the plan and to satisfy § 1326. A plan can be confirmed only if it meets those requirements. 11 U.S.C. § 1325(a)(1). Beginning with the first payment, the trustee should have enough money to make the required payments on secured claims and to make a partial payment of administrative expenses. The payment of administrative expenses may delay payment on other unsecured claims, none of which could have priority over administrative expenses. The trustee is not required to defer the payment of administrative expenses to the payment of secured claims. He could pay administrative expenses in full before making any payment on secured claims. Section 1326 allows that. The secured creditors could not object that the delay in payment would deprive them of “adequate protection”. 11 U.S.C. §§ 361 & 363(e). A chapter 13 plan is confirmed on the assumption that it will be successfully completed and on the finding that it is likely to be successfully completed. 11 U.S.C. § 1325(a)(6). If a non-assenting secured creditor" }, { "docid": "10197020", "title": "", "text": "and costs accruing on the 1981, 1982, and 1983 taxes until the effective date of the plan also are deducted from the fair market value of the real property. See In re Krump, No. 87-10230, slip op. at 8-10 (Bankr.D.S.D. June 7,1988) (Hoyt, J.). On the other hand, the amount of taxes due and owing for 1984, 1985, 1986, and 1987 is not deducted from the fair market value of the real property. The county does not have a secured claim for this amount because of the automatic stay, and, therefore, it is not a proper deduction in a Section 506(a) determination. This unsecured claim for Faulk County real estate taxes is governed by either 11 U.S.C. § 503(b)(l)(B)(i), as an administrative expense entitled to first priority of payment pursuant to 11 U.S.C. § 507(a)(1), or by 11 U.S.C. § 507(a)(7)(B), as a seventh priority claim. See Carlisle Court, 36 B.R. at 214-18. The issues of the proper classification and treatment of these post-petition taxes, and of the related interest and costs, however, are not properly before this Court. The present decision is limited to a determination of the allowed amount of the FLB-O’s secured claim. The debtors argued that the postpe-tition real estate taxes were a “reasonable, necessary cost and expense of preserving the estate” and they should recover the amount of the taxes from the value of the real property under 11 U.S.C. § 506(c). That section provides that “[t]he trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c). Administrative expenses generally may not be charged against secured collateral. In re Cascade Hydraulics & Util. Serv., Inc., 815 F.2d 546, 548 (9th Cir.1987). The payment of administrative expenses, however, will be allowed from the value of secured collateral when those expenses were incurred directly for the benefit of a secured creditor or when the secured creditor caused or consented to the expense. See id.; Brookfield Production Credit Ass’n" }, { "docid": "18549439", "title": "", "text": "to a creditor as a condition for using property may give rise to a section 507(b) claim. See, e.g., Bonapfel v. Nalley Motor Trucks (In re Carpet Center Leasing Co., Inc.), 991 F.2d 682 (11th Cir.1993), amending opinion on denial of rehearing, 4 F.3d 940 (11th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1069, 127 L.Ed.2d 388 (1994). There being no such agreement here, the court need not comment on or address possible limitations on the application of section 507(b) to such agreements. Because the Debtor was not required to provide, and did not provide, adequate protection to Vincent within the meaning of section 507(b), Vincent has no claim under that section. The second hurdle that Vincent must clear is-that it holds a claim under section 507(a)(1). That section gives first priority to “administrative expenses allowed under section 503(b) of this title.” Hence, to have a superpriority claim under section 507(b), Vincent must first show that under section 503(b) it holds an allowed administrative expense. Section 503(b)(1)(A) provides in relevant part as follows: (b) After notice and a hearing, there shall be allowed administrative expenses ... including— (1)(A) the actual, necessary costs and expenses of preserving the estate.... None of the other subsections of section 503(b) are relevant to the inquiry, but the word “including” is “not limiting,” 11 U.S.C. § 102(3), so that the listing of kinds of administrative expenses in section 503(b) does not define the universe of such expenses. The only basis on which Vincent could contend that the Debtor incurred an administrative expense to it, other than in connection with preserving the estate, is the breach of an agreement or order requiring that adequate protection be provided. As shown already, there is no such agreement or order. Hence, the issue boils down to whether the disposition of the collateral securing Vincent’s claim following the denial of its motions for stay relief gave rise to an “actual, necessary” cost or expense of “preserving the estate.” This too is a deadend for Vincent. The Debtor correctly asserts that Vincent has failed to satisfy section 503(b)(1)(A) because the" }, { "docid": "14953888", "title": "", "text": "in bankruptcy was one of the many considerations lender must evaluate at the time of the original loan and security agreement. secured depreciation of collateral reorthe reorganization period through various other provisions of the Bankruptcy Code. Under 11 U.S.C. §§ 361 and protecadequate protection of the creditor’s interest rebe required through periodic repayments, replacement liens, or other relief except the granting of a § exadministrative expense. Where the adequate protection given by the debtor-in-possesor debtor-in-possession proves to be inadequate, 11 U.S.C. 507(b) provides a superpriority to the See In creditor. See-In re Callister, 15 B.R. 521, 8 Bankr.Ct.Dec. (CRR) 446, 5 Collier Bankr.Cas.2d (Bankr.1058 (Bankr. D.Utah 1981). If adequate protection is not feasible, the creditor may receive relief from the stay to repossess its collateral. 11 U.S.C. § 362(d). Pursuant to 11 U.S.C. § 363(e) the court may condior condition the use of property in credithe creditor has an interest as is proto provide adequate protection of such interest. Bankruptcy responsibility on the debtor to initiate consideration of adequate protection of a creditor’s noncash collateral. There is nothing in § 503 remotely suggesting that administrative expense priority was intended as an optional remedy to adequate protection of a secured claimholder’s interest in property of the estate. In re Advisory Information and Management Systems, Inc., 50 B.R. 627, 629-630 (Bankr.M.D.Tenn.1985); accord, In re Briggs Transportation Co., 47 B.R. 6 (Bankr.D.Minn.1984). Having failed to file a motion for adequate protection, AFG is not entitled to an administrative priority. Confirmation of the Plan Under § 1325(a)(1) of the Bankruptcy Code, in order for a plan to be confirmed, it must comply “with the provisions of this chapter [13] and with the other applicable provisions of this title.” § 1325(a)(1). The Plan proposes to pay the Administrative Claim of AFG, a claim which is not allowable under either § 503(b)(1) or § 507 of the Bankruptcy Code, in full. A plan which proposes to pay a disallowed claim does not comply with the operative provisions of the Bankruptcy Code and may not be confirmed. In addition, there is no indication that notice of the" }, { "docid": "4654386", "title": "", "text": "secured creditor’s claim for administrative expense under 11 U.S.C. § 503 for the use and depreciation of aircraft which the chapter 11 debtor continued to use and derive revenue from in the operation of its business prior to the creditor obtaining relief from the stay. Reasoning that the creditor — who did not seek adequate protection — was attempting to use § 503 as a method to bypass a request for adequate protection, the court stated that “[t]here is no indication in § 503 which even remotely suggests that an administrative expense priority claim was intended as an optional remedy to adequate protection provided for by the Code of a secured creditor’s interest in property of the estate.” Here, SBJ, without a rent clause or proof of entitlement to adequate protection, is attempting to obtain payment for making a substantial contribution to debtors’ estate through debtors’ continued use of the farmland. However, as the Province-town-Boston court stated: [the creditor] cannot divest the debtor of its right to use collateral necessary to reorganization unless the creditor can show that postpetition retention and use of the collateral will impair the creditor’s adequate protection. The secured creditor is not contributing to the estate by allowing a Debtor-in-Possession to use collateral which it already owns and has a statutory right to use. Matter of Provincetown-Boston Airline, Inc., 66 B.R. at 634. Moreover, although given opportunity to do so, SBJ has failed to explain how the payment it seeks differs from postpetition interest on the use value of its collateral proscribed by the United States Supreme Court in United Savings Ass’n. v. Timbers of Inwood Forest, — U.S. —, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Timbers involved an undersecured creditor whose collateral was appreciating in value and who was receiving postpetition rents under an after-acquired property clause in its security agreement. The creditor contended that it was entitled as well to additional compensation in the nature of adequate protection under 11 U.S.C. § 362(d)(1) for the use of the proceeds it was deprived of by virtue of the delay in immediate foreclosure on its" }, { "docid": "23422476", "title": "", "text": "adequate protection. Naturally, where the property is shrinking in value the secured claimant is not protected without payment or additional security, but, where the value of the collateral is firm, the secured creditor is adequately protected in the sense of the Bankruptcy Code if the collateral is otherwise properly insured, relieved of taxes and properly maintained. Here the Court finds there is no undue risk of material harm to Provident and there is a possibility of reorganization. In the gap of time between filing and confirmation, plaintiff is entitled only to demand the value continue to be in that amount which was the value of the collateral at the commencement of the case. It must be remembered that Section 362 is designed as a holding pattern for secured claims under the Code providing there is adequate protection until a plan takes hold. Should the case be dismissed, or confirmation denied, the secured claimant is entitled to the interim adequate protection. If a plan is confirmed the secured claimant is entitled to the rights provided in 11 U.S.C. § 1129 and to the election under 11 U.S.C. § 1111(b)(2). To the extent the protection found here proves to be inadequate after the fact, i. e., the value of the collateral falls below the $4,000,000 stipulated to be its fair market value at the time of filing, Provident would be entitled to request a priority even over administrative expenses. The Court is given power in 11 U.S.C. § 361(3) to grant such compensation ahead of priority administrative expense. 11 U.S.C. § 503(b)(1). H.R.Rep.No.95-595, 95th Cong., 1st Sess. 340 (1978). But, when, as here, the secured claimant refused what appears to be the indubitable equivalent ($4,150,000 in cash which was stipulated at the time to be the fair market value) there is a serious question whether the Court should give further protection under Section 361(3), even if the collateral depreciates although a secured claimant has a right to refuse cash out at the time a plan is proposed by the election in Section 1111(b)(2). A secured claimant who wishes time-value for its allowed" } ]

[ { "docid": "23466186", "title": "", "text": "waters. In view of the somewhat ambiguous language of the statute itself and the apparent lack of authority on the point, we hesitate to conclude whether a tort occurring within foreign territorial waters comes within the purview of the Death on the High Seas Act. However, we find it unnecessary to resolve this question since our acceptance of appellees’ maritime tort designation on either this or Executive Jet ground would require recognition of another jurisdictional obstacle prohibiting this suit. It is axiomatic that Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise. Recognizing this fact, the appellees rely upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., as an expression of governmental consent to be sued. The United States, however, contends that maritime claims against the Government arising under either the Death on the High Seas Act or the general maritime law are cognizable solely under two specific federal admiralty statutes, the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752 and the Public Vessels Act, 46 U.S.C. §§ 781-790. Neither side disputes the fact that jurisdiction under the FTCA and the two admiralty statutes is mutually exclusive, 28 U.S.C. § 2680(d). The District Court, believing that the admiralty statutes extended only to claims involving United States vessels or cargo concluded that the appellees’ maritime claim was maintainable solely under the FTCA. Prior to 1960, this interpretation of the intersecting scope of the statutes would have been correct. However, in 1960, Congress amended section 742 of the SIA by deleting the language which restricted the statute to claims involving merchant vessels and by substituting a broad new jurisdictional statement: “In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States. . . .” Pub.L. No. 86-770, § 3, 74 Stat. 912. (Emphasis added) The addition of" } ]

[ { "docid": "18306316", "title": "", "text": "MTL to act as its vessel operator pursuant to a fixed price contract (United States’ Brief at 3-4) and that Marine Transport has been its agent prior to August 5, 1982 until the present (United States’ Statement of Uncontested Material Facts at ¶ 2). The crux of the United States’ argument on the dismissal issue is that defendant MTL was acting as the United States’ agent and that “[sjeamen’s actions, such as plaintiff’s, must be filed under the Public Vessels Act, 46 U.S.C. §§ 781-790, which incorporates by reference the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 [and] may be commenced only against the United States and not against its agents. Carter v. American Export Isbandtsen Lines, Inc., 411 F.2d 1185 (2d Cir.1969).” (United States’ Brief at 4). In Carter, supra, the Second Circuit held that because plaintiff seaman, allegedly injured on a public vessel of the United States, had an adequate remedy against the United States under the Public Vessels Act and the Suits in Admiralty Act, his sole remedy was against the United States, not against defendant, the operator of that public vessel and the agent of the United States. A seaman’s remedy against the United States is provided in the Public Vessels Act, 46 U.S.C. §§ 781-790, which establishes that a libel in personam may be brought against the United States in cases involving public vessels. 46 U.S.C. § 781. The Public Vessels Act incorporates by reference the provisions of the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. 46 U.S.C. § 782. Section 742 makes available a libel in personam against the United States in any case in which a proceeding in admiralty could have been maintained against a privately owned vessel had it been involved. 46 U.S.C. § 742. That the remedy of a seaman injured aboard a public vessel, such as the USNS Sealift Pacific, lies exclusively against the United States is provided in 46 U.S.C. § 745 which reads: where a remedy is provided by this Act [46 USCS §§ 741 et seq. ] it shall hereafter be exclusive of any other" }, { "docid": "5888306", "title": "", "text": "as set forth in that Addition to the Agreed Statement of Facts. “THE COURT: Is it so stipulated then? “MR. STERLING: Yes, it is so stipulated.” The only conflict in the facts concerns the contents of a telephone conversation of January 8, 1971, between plaintiffs’ counsel and the government claims officer, Mr. Marsh. The conversation concerned the possibility of administrative settlement of the claim even though the complaint had been filed. This conversation is material only regarding the cause of action under the Federal Tort Claims Act. As hereinafter appears, no action under the Federal Tort Claims Act lies. Therefore, the conflict in the evidence is immaterial. 7. The defendants have affirmatively defended on the ground that the complaint involves a “maritime tort” and therefore the sole remedy falls under the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. The defendants further affirmatively allege that inasmuch as plaintiffs’ Complaint was not filed within two years after the incident in controversy, the claim is barred by the two-year statute of limitations of the Suits in Admiralty Act, 46 U.S.C. § 745. 8. Any Finding of Fact deemed to be contained in the Conclusions of Law is included herein by reference. CONCLUSIONS OF LAW 1. This Court has jurisdiction over the instant cause of action pursuant to the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. The Act, at section 742, provides in part: “In cases where if such vessel were privately owned or operated . or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States . ” The words “or if a private person or property were involved” were added by an amendment to section 742 enacted in 1960, Pub.L. 86-770, 74 Stat. 912, § 3, September 13, 1960. The amendment: “restates in brief and simple language the now existing exclusive jurisdiction conferred on the district courts, both on their admiralty and law sides, over cases against the United States which could be sued on in admiralty if private vessels, persons, or" }, { "docid": "22935240", "title": "", "text": "civil actions on claims against the United States, for money damages, accruing on and after January 1, 1946, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Section 2674 provides, in pertinent part: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” Section 2680(d) excludes from the coverage of the FTCA “[a]ny claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.” See United States v. United Continental Tuna Corp., 425 U. S. 164, 172 (1976) (“Maritime tort claims deemed beyond the reach of both Acts could be brought only on the law side of the district courts under the Federal Tort Claims Act”). Pub. L. 69-165, 41 Stat. 537, codified at 46 U. S. C. App. §761 et seq. See also Block v. Neal, 460 U. S. 289, 298 (1983), and United States v. Aetna Casualty & Surety Co., 338 U. S. 366, 383 (1949). As we stated in the latter: “In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo’s statement...: ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’” Ibid, (quoting Anderson v. Hayes Construction Co., 243 N. Y." }, { "docid": "20317372", "title": "", "text": "admiralty jurisdiction of the federal courts, 28 U.S.C. § 1333, the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, the Public Vessels Act, 46 U.S.C. § 781-790, and the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740. The Court will separately discuss each of the nine counts in Third-Party Complaint A. A. Count I Count I of Third-Party Complaint A seeks noncontractual indemnification and contribution from the United States, as a seller of asbestos to certain of the defendants and to BIW, based upon the government’s alleged negligent failure to provide warnings regarding the hazards of asbestos exposure. Count I must be dismissed for lack of subject matter jurisdiction. The doctrine of sovereign immunity prevents this Court from exercising jurisdiction over a claim against the United States unless the United States has consented to suit on the claim. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Defendants urge that waiver of the United States immunity from suit on this claim can be found in the FTCA. The FTCA subjects the United States to liability for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674. The United States does not deny either that it sold asbestos or that it failed to warn regarding the hazards of asbestos exposure. It contends, however, that Count I alleges conduct for which it cannot be liable by reason of 28 U.S.C. § 2680(a), the discretionary function exception to the government’s liability under the FTCA. Section 2680(a) provides in relevant part that the provisions of the FTCA shall not apply to (a) Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty" }, { "docid": "6199018", "title": "", "text": "a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in person-am may be brought against the United States.... 46 U.S.C.App. § 742. The Supreme Court, however, held in United States v. United Continental Tuna Corp., 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976), that a plaintiff whose claim falls within the scope of the PVA may not escape the PVA’s reciprocity requirement by suing under the SAA. Id. at 181, 96 S.Ct. 1319. The Court emphasized that to permit such a claim would “render nugatory the provisions of the Public Vessels Act.” Id. at 178, 96 S.Ct. 1319. United Continental Tuna, however, did not involve the FTCA, and the survivors argue that they may still bring their claims under that statute. The FTCA provides: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.... 28 U.S.C. § 2674. The FTCA provides for several exceptions to this broad grant of liability, however, and one of them generally excludes claims remediable in admiralty: The provisions of this chapter ... shall not apply to— (d) Any claim for which a remedy is provided by sections 741-752 [the SAA], 781-790 [the PVA] of Title 46, relating to claims or suits in admiralty against the United States. 28 U.S.C. § 2680. The United States argues that this provision bars the non-citizen survivors’ claim. The non-citizen survivors contend that it does not, because as foreign nationals who cannot show reciprocity they have no “remedy” under the PVA or SAA. They argue, not unreasonably, that a literal reading of the statute’s language would not bar their suit. The parties thus address the question of the FTCA’s applicability as if it were chiefly a matter of interpreting § 2680’s admiralty exception. But it does not matter who is correct, because the survivors’ claim is barred for reasons unrelated to the FTCA’s admiralty exception. The PVA of its own force bars their claim. The Supreme Court’s" }, { "docid": "1301199", "title": "", "text": "The determination of this question requires a review of the history of the waiver of governmental immunity by the United States in admiralty causes and of the correlative statutory provisions concerning the payment of interest by the United States. The United States had accumulated a large fleet of merchant vessels during World War I and the Congress saw fit to waive sovereign immunity in the Suits in Admiralty Act, enacted in 1920, Act of March 9, 1920, c. 95, 41 Stat. 525, 46 U.S.C. § 741. Section 3 of that Act, 46 U.S.C. § 743 et seq. provided that “[ijnterest shall run as ordered by the court.” The Suits in Admiralty Act limited the waiver of immunity to damages flowing from “merchant ships” owned by the United States although an actual collision was not necessary to ground liability. See Canadian Aviator Ltd. v. United States, 324 U.S. 215, 221-25, 65 S.Ct. 639, 89 L.Ed. 901 (1945). In 1925, the Congress determined to waive sovereign immunity not only with respect to damage caused by merchant ships but also by “public vessels” owned or controlled by the United States. The Public Vessels Act, Act of March 3, 1925, c. 428, 43 Stat. 1112, 46 U.S.C. § 781 et seq. was enacted. In Section 2 of that statute it was provided that “no interest shall be allowed on any claim up to the time of the rendition of judgment unless upon a contract expressly stipulating for the payment of interest.” In 1946 there was enacted the Federal Tort Claims Act, Act of August 2, 1946, c. 753, § 402, 60 Stat. 842, 28 U.S.C. § 2671 et seq. It included a provision for the exception from that Act of any claim for which a remedy is provided in the Suits in Admiralty Act or the Public Vessels Act, 46 U.S.C. §§ 741-752, 781-790, relating to claims or suits in admiralty against the United States, 28 U.S.C. § 2680(d). That statute also provided that the United States “shall not be liable for interest prior to judgment” (28 U.S.C. § 2674). Confusion arose with respect" }, { "docid": "6199000", "title": "", "text": "claims against the United States. The district court granted the United States’ motion for summary judgment, holding that the survivors’ claims are not cognizable, and denied as futile the survivors’ motion to amend. The court entered judgment for the United States and this appeal timely followed. We review the grant of summary judgment de novo. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). II The United States, of course, is liable in court only when it has waived its sovereign immunity. Three immunity-waiving statutes are relevant here. The first is the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674 et seq., which generally renders the United States hable for its torts to the same extent as a private actor. The FTCA includes an exception, however, for “[a]ny claim for which a remedy is provided” by either of the other two statutes relevant to this case. 28 U.S.C. § 2680. These are the Public Vessels Act (“PVA”), 46 U.S.C.App. § 781 et seq., and the Suits in Admiralty Act (“SAA”), 46 U.S.C.App. § 741 et seq. The PVA renders the United States liable in admiralty for “damages caused by a public vessel of the United States.” 46 U.S.CApp. § 781. The PVA, however, contains a special reciprocity requirement that permits foreign nationals to sue the U.S. government only if their country of nationality would permit a similar suit by a U.S. citizen. 46 U.S.CApp. § 785. The SAA is broader: it renders the United States liable in admiralty in any case in which, “if a private person or property were involved, a proceeding in admiralty could be maintained.” 46 U.S.CApp. § 742. It contains no reciprocity requirement. One might wonder why the PVA even exists, since the SAA appears to cover all admiralty claims, including those involving a public vessel. The answer lies in history. Until 1960 the SAA applied only to “merchant vessels,” a category mutually exclusive of “public vessels.” See United States v. United Cont’l Tuna Corp., 425 U.S. 164, 167 n. 1, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976). For this and other reasons, admiralty" }, { "docid": "23004141", "title": "", "text": "of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The test of liability under the Act is thus prescribed in Section 2674: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” In Section 2680 are listed twelve classes 4of cases expressly excepted from the grant .of' jurisdiction under the Act, and we quote two of these excepted classes: “(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” “(d) Any claim for which a remedy is provided by sections 741-752 (Suits in Admiralty Act), 781-790 (Public Vessels Act) of Title 46, relating to claims or suits in admiralty against the United States.” The contention of the United States that the case before us is not within the Act seems to stem primarily from § 2680(d) just quoted above, which, we are told, evidenced an intent on the part of Congress to except from the Act all maritime torts which might be made the basis for a suit in admiralty. With this we cannot agree, and we think it is necessary to add little to what was said by the District Judge. The instant action was not brought, and could not be brought, under either the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., or the Public Vessels Act, 46" }, { "docid": "23252975", "title": "", "text": "problems in 1960. First, Congress authorized transfers between the Court of Claims and district courts for eases filed in the wrong court. See Pub.L. No. 86-770, §§ 1-2, 74 Stat. 912 (1960). In addition, Congress amended the SIAA by eliminating the reference to “merchant vessel.” See id., § 3, 74 Stat. 912 (1960). Thus, after the 1960 amendments, the SIAA authorized in per-sonam admiralty actions against the United States “[i]n cases where if such vessel were piivately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained.” 46 U.S.C.A.App. § 742 (West Supp.2003). As is relevant to this case, the 1960 amendments worked no other substantive change to the SIAA. Specifically, no limitations on the waiver of sovereign immunity similar to those contained in the FTCA were added to the Act. There is no indication in the legislative history that Congress intended the 1960 amendments to do anything other than correct the jurisdictional problems mentioned above. Nonetheless, courts have consistently concluded that the 1960 amendments greatly expanded the reach of the SIAA to include essentially all admiralty tort actions that could be asserted against the government. See, e.g., Trautman v. Buck Steber, Inc., 693 F.2d 440, 444 (5th Cir.1982); Bearce v. United States, 614 F.2d 556, 558 (7th Cir.1980); Kelly v. United States, 531 F.2d 1144, 1148-49 (2nd Cir.1976); Lane, 529 F.2d at 179. Thus, after the 1960 amendments, admiralty actions that previously would have been brought under the FTCA instead had to be brought under the SIAA— both the SIAA and the FTCA make it clear that the SIAA provides the exclusive remedy for cases falling within its scope. See 46 U.S.C.A. § 745 (“[W]here a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter....”); 28 U.S.C.A. § 2680(d) (excluding from the FTCA “[a]ny claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United" }, { "docid": "17017191", "title": "", "text": "the Suits in Admiralty Act (SAA), 46 U.S.C. § 741 et seq. If the Federal Tort Claims Act were the applicable base of jurisdiction, then Williams’ claim expired under the limitations statute on September 11, 1981, six months after the FAA’s March 11, 1981 letter which denied her administrative claim. See 28 U.S.C. § 2401(b). On the other hand, if the Suits in Admiralty Act provided the applicable base of jurisdiction, then Williams’ claim expired on July 20, 1981, two years after the loss of her husband in the plane crash. See 46 U.S.C. § 745. Service was apparently completed on the U.S. Attorney on July 21, 1981, and on the U.S. Attorney General on July 25, 1981. The district court granted defendant’s FAA’s motion to dismiss. The court held that: (1) jurisdiction existed solely under the Suits in Admiralty Act (SAA); (2) the United States, not the FAA, was the proper party defendant under the SAA; and (3) suit against the United States was now time-barred by the SAA’s two-year statute of limitations. The court also denied plaintiff’s motion to amend, which sought to name the United States as a party defendant. The court reasoned that an amendment naming the United States as a party could not relate back under Fed.R.Civ.P. 15(c), because the United States did not receive notice of the suit “within the period provided by law for commencing the action.” We affirm. 1. Jurisdiction Williams alleged in her complaint that the action against the “United States of America Federal Aviation Administration” was based upon the FTCA or, alternatively, the SAA. The district court ruled that the SAA provided the exclusive basis for jurisdiction. Suits against the sovereign require pleading a statute whereby the United States consents to be sued. United States v. Clarke, 33 (8 Pet.) U.S. 436, 443, 8 L.Ed. 1001 (1900). Although the FTCA usually provides that waiver in tort actions, the FTCA is inapplicable where an admiralty claim exists. 28 U.S.C. § 2680(d). Admiralty claims against the United States are cognizable solely under two statutes, the Suits in Admiralty Act (SAA), 46 U.S.C." }, { "docid": "1301200", "title": "", "text": "but also by “public vessels” owned or controlled by the United States. The Public Vessels Act, Act of March 3, 1925, c. 428, 43 Stat. 1112, 46 U.S.C. § 781 et seq. was enacted. In Section 2 of that statute it was provided that “no interest shall be allowed on any claim up to the time of the rendition of judgment unless upon a contract expressly stipulating for the payment of interest.” In 1946 there was enacted the Federal Tort Claims Act, Act of August 2, 1946, c. 753, § 402, 60 Stat. 842, 28 U.S.C. § 2671 et seq. It included a provision for the exception from that Act of any claim for which a remedy is provided in the Suits in Admiralty Act or the Public Vessels Act, 46 U.S.C. §§ 741-752, 781-790, relating to claims or suits in admiralty against the United States, 28 U.S.C. § 2680(d). That statute also provided that the United States “shall not be liable for interest prior to judgment” (28 U.S.C. § 2674). Confusion arose with respect to the selection of a proper forum for admiralty claims — whether the Court of Claims or the District Courts — and which statute of limitations was applicable, matters which do not concern us here. For an interesting history of the statutory confusion, see the discussion of Chief Judge Brown in De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5 Cir. 1971). Suffice it to say that important amendments were made to the Suits in Admiralty Act, which included a redraft of Section 2, Act of September 13, 1960, Pub.L. 86-770, § 3, 74 Stat. 912, 46 U.S.C. § 742. The amended section provided that an appropriate non-jury proceeding in personam may be brought against the United States not only, as formerly, “[i]n cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained,” but also in cases where “if a private person or property were involved, a proceeding in admiralty could be maintained.” This rather vague language" }, { "docid": "17698999", "title": "", "text": "DENMAN, Circuit Judge. The two corporate appellants, hereafter Orion, appeal from the dismissal of a third party complaint filed in a suit at common law. The complaint was filed by one Basnight, a seaman on Orion’s Steamship Seacoronet while in dock at Pier 2, in Pusan, Korea, where he was injured by the unseaworthiness of the vessel, exposing him to the fumes of chlorine gas which were negligently allowed to escape from the containers during their loading. Basnight could have sued in admiralty but he chose to sue at common law, as private persons and corporations are permitted. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 88, 66 S.Ct. 872, 90 L.Ed. 1099. His case was tried by a jury, a verdict rendered for him which Orion accepted and paid. Orion’s third party complaint states a claim on which Orion asserts that it is entitled to sue the United States under both “Federal Tort Claims Act, Title IV, Chapter 753 — Public Law 601— Legislative Reorganization Act of 1946, the Suits in Admiralty Act, 46 U.S.C.A. P. 741-752, and other applicable Federal Statutes.” It is obvious that Orion cannot recover under the Tort Claims Act since 28 U.S.C. § 2680 (k) excepts from the act “any claim arising in a foreign country” as here at Pier 2 in Pusan, Korea, and 28 U.S.C. § 2680(d) excepts “Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.” Title 46 U.S.C.A. § 742 provides that: “In cases where if such vessel were privately owned or operated, or if such [United States] cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States * * The question then arises whether the authority so given to sue the United States in admiralty for torts in handling its cargo should be so liberally construed as to permit its assertion in a third party" }, { "docid": "8692125", "title": "", "text": "a source of rights as distinct from a waiver of the government’s defense of sovereign immunity than the Federal Tort Claims Act. The latter act provides that “the United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances ...,” 28 U.S.C. § 2674, the former that the United States may be sued in cases where, “if a private person ... were involved, a proceeding in admiralty could be maintained ...,” 46 U.S.C. § 742. In Weyerhaeuser, if it had not been for the passage of the Federal Employees’ Compensation Act the injured seaman, a civilian, could have sued the government in tort by virtue of the Public Vessels Act, 46 U.S.C. §§ 781 et seq. The only question was whether the Federal Employees’ Compensation Act, by cutting off the seaman’s tort remedy, cut off an indemnity action as well. However that question was answered, it was possible to regard the government as having committed a tort as to which the Public Vessels Act had raised the bar of sovereign immunity and the Federal Employees’ Compensation Act had changed the remedy. But that is not possible here. Even if there were no Veterans’ Benefits Act, corresponding to the Federal Employees’ Compensation Act in Weyerhaeuser, Hillier, a serviceman, would have had no tort cause of action against the government. Therefore the appellants have no such cause of action either, for by definition they can obtain tort indemnity only from a joint tortfeasor. This analysis reconciles Weyerhaeuser, Wallenius, and Lockheed with Stencel Aero, and shows that Wellington was overruled by Stencel Aero, since in both cases there was no tort duty owed by the government to the plaintiff and therefore no basis, in the absence of an express or implied contractual obligation, for requiring the government to indemnify the defendant. The Court in Stencel Aero noted that there was no contractual relationship between the defendant and the government and that the defendant’s theory of indemnity was that it had been passively and the United States actively negligent. See 431 U.S. at" }, { "docid": "23545810", "title": "", "text": "46 U.S.C. §§ 781-790, and the United States did not dispute the applicability of that statute save for unsuccessfully contending that Bushey must first present its claim to the Coast Guard Board of Contract Appeals, the judge ruled that the damage to the drydoek was not “caused by a public vessel of the United States” since “the Tamaroa was not, in a practical sense, a ship causing a ‘collision,’ but an inert mass.” 276 F.Supp. at 523. He then proceeded to hold (1) that sovereign immunity was nevertheless waived under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, the exception in § 2680(d) for “any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States” being inapplicable because, as he believed, no such remedy was provided; (2) that Bushey’s pleading would be deemed amended to allege a claim under the Tort Claims Act which it had not asserted; (3) that New York law applied, 28 U.S.C. § 1346(b); (4) that this, however, was the “whole” law of New York; and (5) that New York would, indeed must, determine liability for a tort on navigable waters in accordance with maritime law. Hence, from a substantive standpoint, the chase was thought to have ended where it began, save for a caveat as to the applicability of distinctive admiralty remedies, notably limitation, an issue not practically important here. What does remain important is that our powers to review a judgment determining liability but not fixing damages are entirely different if the action was in admiralty as the parties thought or at law as the judge held. If it was the former, we have jurisdiction under 28 U.S.C. § 1292(a) (3) relating to “interlocutory decrees * * * determining the rights and liability of the parties to admiralty cases in which appeals from final decrees are allowed,” whereas if it were the latter, we would have none. Beebe v. Russell, 60 U.S. (19 How.) 283, 285, 15 L.Ed. 668 (1856); Catlin v. United States, 324 U.S." }, { "docid": "17017192", "title": "", "text": "court also denied plaintiff’s motion to amend, which sought to name the United States as a party defendant. The court reasoned that an amendment naming the United States as a party could not relate back under Fed.R.Civ.P. 15(c), because the United States did not receive notice of the suit “within the period provided by law for commencing the action.” We affirm. 1. Jurisdiction Williams alleged in her complaint that the action against the “United States of America Federal Aviation Administration” was based upon the FTCA or, alternatively, the SAA. The district court ruled that the SAA provided the exclusive basis for jurisdiction. Suits against the sovereign require pleading a statute whereby the United States consents to be sued. United States v. Clarke, 33 (8 Pet.) U.S. 436, 443, 8 L.Ed. 1001 (1900). Although the FTCA usually provides that waiver in tort actions, the FTCA is inapplicable where an admiralty claim exists. 28 U.S.C. § 2680(d). Admiralty claims against the United States are cognizable solely under two statutes, the Suits in Admiralty Act (SAA), 46 U.S.C. §§ 741-52 and the Public Vessels Act (PVA), 46 U.S.C. §§ 781-90. The question is whether Williams has an admiralty claim under the SAA; however, the SAA in itself does not provide the answer. That Act only operates to waive sovereign immunity where an admiralty claim exists against the United States. In turn, the source of an admiralty claim is either: (1) maritime common law, or (2) statute (e.g., Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-67). See Roberts v. United States, 498 F.2d 520, 525-26 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974). Focusing first on the admiralty claim under maritime common law, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) provides the starting point in an attempt to define a maritime tort in the context of aviation. Executive Jet reserved the question whether, absent legislation, air traffic controller negligence in the course of a transoceanic flight constitutes a maritime tort. Id. at 271, 93" }, { "docid": "20317371", "title": "", "text": "Court will then address the United States’ motion to dismiss, or for summary judgment on, Model Third-Party Complaint B. I. Model Third-Party Complaint A: BIW Cases Model Third-Party Complaint A contains nine counts. In the first eight counts, defendants seek indemnity and/or contribution by the United States variously based on its status as a seller of raw asbestos fibers and products containing asbestos (Counts I, II, III), as the promulgator of specifications requiring the use of asbestos products at BIW (Counts IV, V), as the entity in control of the work at BIW (Counts IV, V, VII, VIII), and as the owner of naval vessels at BIW (Count VI). In addition, if it should be determined that admiralty jurisdiction is applicable to the actions, a final count seeks indemnification and/or contribution from the United States on admiralty and maritime law principles (Count IX). Jurisdiction over these claims is asserted under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671-2680; the Tucker Act, 28 U.S.C. § 1346(a)(2); and under the general maritime and admiralty jurisdiction of the federal courts, 28 U.S.C. § 1333, the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, the Public Vessels Act, 46 U.S.C. § 781-790, and the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740. The Court will separately discuss each of the nine counts in Third-Party Complaint A. A. Count I Count I of Third-Party Complaint A seeks noncontractual indemnification and contribution from the United States, as a seller of asbestos to certain of the defendants and to BIW, based upon the government’s alleged negligent failure to provide warnings regarding the hazards of asbestos exposure. Count I must be dismissed for lack of subject matter jurisdiction. The doctrine of sovereign immunity prevents this Court from exercising jurisdiction over a claim against the United States unless the United States has consented to suit on the claim. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Defendants urge that waiver of the United States immunity from suit on this claim can be found in the FTCA. The" }, { "docid": "17699000", "title": "", "text": "46 U.S.C.A. P. 741-752, and other applicable Federal Statutes.” It is obvious that Orion cannot recover under the Tort Claims Act since 28 U.S.C. § 2680 (k) excepts from the act “any claim arising in a foreign country” as here at Pier 2 in Pusan, Korea, and 28 U.S.C. § 2680(d) excepts “Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.” Title 46 U.S.C.A. § 742 provides that: “In cases where if such vessel were privately owned or operated, or if such [United States] cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States * * The question then arises whether the authority so given to sue the United States in admiralty for torts in handling its cargo should be so liberally construed as to permit its assertion in a third party pleading in a common law suit in which the complaint alleges a liability both at law and in admiralty. We think we are required to give this liberal construction of a power so granted to suitors against the United States, by the Supreme Court decision in United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. The court there holds that where the Government has given its consent to be sued at common law, it may be so sued for contribution for its torts by a joint tort-feasor or by a separate common law complaint, stating 340 U.S. at page 555, 71 S.Ct. at page 407, that “ ‘when [such] authority is given, it is liberally construed.’ ” The Government relies upon Johnson v. United States Board Emergency Fleet Corporation, 280 U.S. 320, 50 S.Ct. 118, 74 L.Ed. 451, decided in 1930, in which a strict rule of construction is given to the legislation for suits against the United States. We prefer to follow the more liberal 1951 rule" }, { "docid": "8692124", "title": "", "text": "“not the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence.... We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the government he is serving.... We find no parallel liability before and we think no new one has been created by this Act.” 340 U.S. at 141-42, 71 S.Ct. at 156-57. The Court was speaking of soldiers suing under the Federal Tort Claims Act rather than sailors suing under the Suits in Admiralty Act. But as the appellants acknowledged at oral argument, servicemen on active duty have never been allowed to bring tort suits against the government under the Suits in Admiralty Act either. Their attempts to do so have been uniformly repelled, most recently in Charland v. United States, 615 F.2d 508 (9th Cir.1980), and Cusanelli v. Klaver, 698 F.2d 82, 85 (2d Cir.1983) — the latter a suit by a Coast Guardsman. The Suits in Admiralty Act is no more a source of rights as distinct from a waiver of the government’s defense of sovereign immunity than the Federal Tort Claims Act. The latter act provides that “the United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances ...,” 28 U.S.C. § 2674, the former that the United States may be sued in cases where, “if a private person ... were involved, a proceeding in admiralty could be maintained ...,” 46 U.S.C. § 742. In Weyerhaeuser, if it had not been for the passage of the Federal Employees’ Compensation Act the injured seaman, a civilian, could have sued the government in tort by virtue of the Public Vessels Act, 46 U.S.C. §§ 781 et seq. The only question was whether the Federal Employees’ Compensation Act, by cutting off the seaman’s tort remedy, cut off an indemnity action as well. However that question was answered, it was possible to regard the government as having committed a tort as to which the Public Vessels Act" }, { "docid": "22220546", "title": "", "text": "Keene contends that it is excused from the filing requirement because its suit is in the nature of a third party complaint, 28 U.S.C. § 2675. However, under Fed.R. Civ.P. 14, a third party action is one in which a defendant asserts a claim against a non-party to the original action for all or part of the plaintiff’s claim against him. Since Keene is the original complainant in this suit, its action is not within Rule 14. See generally, 6 C. Wright & A. Miller, Federal Practice and Procedure §§ 1441, 1453-55 (1971). We perceive no reason to read the FTCA’s reference to third party actions as including more than is encompassed by Rule 14. ADMIRALTY JURISDICTION The Suits in Admiralty Act (“SIAA”), 46 U.S.C. §§ 741-752, and the Public Vessels Act (“PVA”), 46 U.S.C. §§ 781-790, waive sovereign immunity in the area of maritime torts. Under the SIAA the United States waives sovereign immunity with respect to cases in which “if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained.” 46 U.S.C. § 742. The PVA waives sovereign immunity with' respect to “damages caused by a public vessel of the United States.” 46 U.S.C. § 781. Keene argues that even if we lack jurisdiction over its claim under the FTCA, federal jurisdiction exists in admiralty. Admiralty jurisdiction in tort exists when the wrong (1) took place on navigable waters (“situs”) and (2) “bear[s] a significant relationship to traditional maritime activity” (“status”). Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 254-61, 93 S.Ct. 493, 497-01, 34 L.Ed.2d 454 (1972); Foremost Insurance Co. v. Richardson, -U.S.-,-, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982) (approving application of Executive Jet test outside the context of aviation torts); see also Kayfetz v. Walker, 404 F.Supp. 75, 76 (D.Conn.1975) (Lumbard, Circuit Judge). The Amended Complaint states that “[m]ost of the claimants [against Keene] were involved in installing high temperature thermal insulation around pipes and boilers on naval ships," }, { "docid": "22857026", "title": "", "text": "169 F. Supp. 523. See also Continental Casualty Co. v. United States, 140 Ct. Cl. 500, 156 F. Supp. 942. As amended, 46 U. S. C. § 742 now provides in pertinent part: “In cases where if such vessel [owned by the United States] were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate non-jury proceeding in personam may be brought against the United States .... Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. . . .\" Mr. Justice Harlan, whom Mr. Justice Stewart joins, dissenting. In my opinion a course of legal history, reflecting both decisions of this Court and congressional enactments, precludes the interpretation that is now placed on the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U. S. C. § 741 et seq. (1964 ed.). I. The Suits in Admiralty Act was enacted in 1920 to deal with problems created by the formation of a large government-owned merchant fleet during World War I. The Act established a method to sue the United States in admiralty that would protect the interests of libellants while at the same time prevent in rem attachments of government vessels during a possible emergency. See S. Rep. No. 223, 66th Cong., 1st Sess. (1919); H. R. Rep. No. 497, 66th Cong., 2d Sess. (1919); 58 Cong. Rec. 7317 (1919); 59 Cong. Rec. 1684-1688 (1920). Although the creation of this statutory procedure for suits in admiralty was occasioned by particular needs, the early cases, discussed below, held unmistakably, first, that the Act provided the exclusive admiralty remedy against the United States, and, second, that it was exclusive of all other remedies affording relief for an underlying claim cognizable in admiralty. The Suits in Admiralty Act provides the" } ]

[ { "docid": "12412993", "title": "", "text": "was approved by the bankruptcy court without any objection from a party-in-interest. The Trustee then sought $89,359.99 in compensation from the estates. The bankruptcy court reduced the Trustee’s compensation to $38,009.30 based upon 11 U.S.C. § 326(a), which caps a Chapter 7 trustee’s compensation based upon a percentage of the moneys disbursed.- The Trustee appealed the bankruptcy court’s compensation decision to the district court, which reversed the decision and ruled that the Trustee’s maximum compensation would be based upon the moneys and property disbursed. The United States Trustee (the U.S. Trustee) and Palmer & Palmer, P.C. (Palmer), the debtors’ counsel, appeal. II.STANDARD OF REVIEW This case presents only a question of statutory interpretation, which is a question of law reviewed de novo. See Bruner v. United States (In re Bruner), 55 F.3d 195, 197 (5th Cir.1995). III.DISCUSSION Section 330 of the Bankruptcy Code provides authority for the bankruptcy court to award the bankruptcy trustee “reasonable compensation for actual, necessary services rendered by such trustee.” See 11 U.S.C. § 330(a)(1). Under § 330, the bankruptcy court may award less compensation than requested, and the section sets out relevant factors to consider in determining reasonable compensation. See id. ; 3 CollieR on Bank ruptCY § 330.02[l][e][i] (Lawrence P. King ed., 15th ed. rev.1998). However, § 326 of the Bankruptcy Code limits the bankruptcy court’s power to award compensation to the trustee by setting a maximum limit on the trustee’s compensation. Section 326(a) provides that [i]n a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed [decreasing percentages of increasing dollar amounts], upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. Id. § 326(a) (emphasis added). The proper outcome of this appeal turns upon whether “moneys disbursed” as used in § 326(a) includes the disbursement of unliquidated property from the estate. Before interpreting the statute, we must first address the" } ]

[ { "docid": "362176", "title": "", "text": "Reasonable compensation to trustees is determined under the standards of § 330. See In re Financial Corp. of America, 114 B.R. 221, 223-24 (9th Cir. BAP 1990), aff'd, 946 F.2d 689 (9th Cir.1991). Section 326 acts independently as a limit on trustee compensation. Id. By its terms, § 326(a) limits trustee compensation to certain percentages of “all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor...” in “a case under chapter 7 or 11.” In other words, it limits compensation to trustees in Chapter 7 or 11 cases where funds in fact have been distributed to parties in interest other that the debtor. However, the terms of § 326(a) do not address the circumstances of Chapter 7 cases where assets have been found, that convert to Chapter 13 before assets are liquidated and disbursed. Such cases often require the Chapter 7 trastee to render substantial services for the benefit of the estate prior to conversion, as mandated by § 704 —services for which the Chapter 7 trustee would receive no reasonable compensation if the terms of § 326(a) were extended to cover such cases. Such a result cannot have been intended and is unwarranted in light of the specific language used in § 326(a). The Colburn and Macklin cases no longer are Chapter 7 cases, as they both have been converted to Chapter 13, and no funds were disbursed or turned over to interested parties in either case by the Chapter 7 trustee prior to conversion. In such cases, by its terms, read literally, § 326(a) simply does not apply to preclude trustee compensation. 2. Section 326(c) does not limit Chapter 7 trustee compensation in a case converted to Chapter 13. At the Colburn hearing, counsel for Nilsen argued that if § 326(a) did not preclude Chapter 7 trustee compensation entirely following conversion to Chapter 13, § 326(c) would limit the aggregate compensation of the Chapter 7 and Chapter 13 trustees to the Chapter 13 trustee compensation limit set forth in § 326(b). Section 326(c) provides that “[i]f more than one" }, { "docid": "18139208", "title": "", "text": "Wittenburg (In re Fin. Corp. of Am.), 114 B.R. 221 (9th Cir. BAP 1990), aff'd and remanded, 946 F.2d 689 (9th Cir.1991), also adopted the “separate and distinct case” approach. The bankruptcy in that case was commenced as one under Chapter 11. The Chapter 11 Trustee moved to convert the ease to one under Chapter 7, which motion was granted. The Chapter 11 Trustee was later appointed to serve as Chapter 7 Trustee of the case. As the Chapter 11 Trustee, he turned over to himself, as Chapter 7 Trustee, approximately $1.5 million. He then sought, as Chapter 11 Trustee, to recover fees based upon the monies turned over to himself as Chapter 7 Trustee. Id. at 222. In relying on the reasoning and analysis of Yale Mining Corp., the Bankruptcy Appellate Panel stated that the Chapter 11 and Chapter 7 Trustee fees should be assessed independently of each other by virtue of the fact that the services that each type of trustee provides are distinct. While a Chapter 11 Trustee carries on the business of the estate, the Chapter 7 Trustee is tasked with liquidating the bankruptcy estate; yet, “both are valuable to the estate.” Id. at 225 (citing In re Yale Mining Corp., 59 B.R. at 305). On the issue of whether the statutory cap under Section 326(c) applies, the court stated that a bankruptcy court “may exercise its discretion to award less than the statutory maximum of Section 326(a)” when the Chapter 7 Trustee and the Chapter 11 Trustee are the same person. Id. Along these lines, “Congress presumably addressed its concerns about double compensation for trustees in Subsection 326(c), which prevents multiple trustees under the same Chapter in a case from earning aggregate compensation in excess of the limits stated in Section 326(a).” Id. at 226. D. Constructive Disbursement Theory The “constructive disbursement” theory imputes the distributions made by the Chapter 13 Trustee upon the former Chapter 7 Trustee to calculate the latter’s maximum fee. Unlike Rodriguez and the “multiple” or “composite” trustee theory, however, the “constructive disbursement” theory does not combine the fees of the" }, { "docid": "18139199", "title": "", "text": "only one bankruptcy “case” is commenced by the filing of the original petition. Id. B. Strict Interpretation of Section 326 As the court in Rodriguez pointed out, several courts have precluded a former Chapter 7 Trustee from recovering compensation in converted cases based upon a strict interpretation of the language in Section 326(a). Courts that strictly interpret Section 326(a) have concluded that a former Chapter 7 Trustee must have either disbursed or turned over monies in order to be eligible to receive compensation in a converted case. In re Fischer, 210 B.R. 467, 469 (Bankr.D.Minn.1997); see also In re Woodworth, 70 B.R. 361, 362-63 (Bankr.N.D.N.Y.1987) (finding that the trustee’s activities were minimal, as he did not marshal or safekeep any assets nor did he liquidate anything). The court in Fischer so concluded by finding that “when Congress has spoken as clearly as it has, it is inappropriate to go beyond the statute in order to achieve what is perceived as fairness.” In re Fischer, 210 B.R. at 469. The court in that case pointed out: Being a chapter 7 trustee is a difficult and risky business. While the trustee is entitled to a statutory part of the filing fee, currently $60.00, that amount rarely compensates the trustee for the time spent on the case. Trustees can only hope that by achieving certain efficiencies by way of volume and by making a substantial fee in an occasional case, that the work of a trustee will be profitable. One of the risks that trustees take is that even if there are nonexempt assets in the case, that the debtor will convert the case to chapter 13 or obtain dismissal of the case short of final administration. This is one of those cases. Id. Also adopting this theory was the court in In re Murphy, 272 B.R. 483 (Bankr.D.Colo.2002). Noting that, despite what would otherwise qualify as reasonable compensation under Section 330(a), the Murphy court concluded that the plain language of Section 326(a) commanded that Chapter 7 Trustees should receive only a percentage of those funds actually disbursed, and that nothing in the" }, { "docid": "18139203", "title": "", "text": "compensation, the court stated that, while this may occasionally lead to an unfair result, Congress, not the court, is the proper ven ue in which a remedy could be fashioned. Id. at *3 (citing In re England, 153 F.3d at 237) (“Congress’s decision to set a maximum limit on trustee compensation based only upon moneys disbursed may arguably lead to a trustee receiving inadequate compensation in a particular case, but that is a problem for Congress to remedy.”). The plain language approach to interpreting Section 326(a) was also addressed in In re Meadows, No. 7-97-02526, 2003 WL 477428 (Bankr.W.D.Va. Jan.6, 2003). In Meadows, the Chapter 7 Trustee sought a commission when the debtor’s case, which had originally been closed as a no-asset case, was subsequently reopened after the trustee discovered assets. After the case was reopened, the trustee liquidated assets and applied for his fees. The court granted his fees, but no disbursement was authorized because the order was not based on Section 331, which governs interim compensation for trustees. When no creditors submitted proofs of claim, the trustee filed a motion to disburse the funds, with the first distribution to himself and the remainder to the debt- or. Id. at *1. The court found that, while the cases of Fischer, Murphy, and Celano were factually distinguishable and thus did not supply controlling authority, the Cela-no case contained the legal basis upon which to find that the trustee was not entitled to compensation. In choosing to follow the plain meaning rule, the court, like in Celano, noted that Congress should be tasked with remedying any inherent unfairness that might result in unusual circumstances such as the ones that court faced. Id. at *1-2 (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); In re Celano, 2001 WL 1586778, at *3-4). The court flatly rejected applying Section 105(a) to award compensation to the trustee, finding that a remedy under Section 105(a) was not available unless express statutory requirements otherwise applied. Id. at *2 (citing United States v. Sutton, 786 F.2d 1305," }, { "docid": "18139201", "title": "", "text": "statutory scheme indicated any different result in cases that had been converted from Chapter 7 to Chapter 13 prior to any disbursements being made. Id. at 485. The court reasoned that “trustees are expected to perform the essential tasks of scrutinizing a debtor’s assets, schedules, and conduct,” and often, the trustee will determine that there are no assets to collect and distribute. In those cases, the Chapter 7 Trustees are limited under Sections 326 and 330 to compensation in the form of a small portion of the debtor’s filing fee. Id. at 486. Thus, “[g]iven this reality, it is anomalous to project that Congress intended an unstated exception to the often harsh workings of section 326(a) to apply in Chapter 7 cases that convert to Chapter 13.” Id. at 486 fn. 8. The court in In re Celano, No. CIV.A. 01-310, 2001 WL 1586778 (E.D.La. Dec.7, 2001), aff'd, 54 Fed.Appx. 591 (5th Cir.2002) (unpublished), refusing to impute post-conversion disbursement upon a former Chapter 7 Trustee in a case that was converted to a Chapter 11 case but dismissed on the debtors’ motion prior to any distribution of funds, also followed the plain meaning rule. Id. at *1, *3. The court so concluded based upon the application of the plain language of Section 326(a), which the court found to be the requirement under case law in the Fifth Circuit. Id. at *3 (citing Pritchard v. United States Trustee (In re England), 153 F.3d 232 (5th Cir.1998)). Under the plain language of Section 326(a), the court found, a Chapter 7 Trustee cannot be compensated based on post-conversion distributions. Id. The court focused its analysis on the phrase “disbursed or turned over by the trustee” as used in Section 326(a). Noting that phrase was not defined in the Bankruptcy Code, the court turned to the dictionary definition of disburse, which means “to pay out.” Thus, the court concluded that the trustee would actually have to distribute funds in order to be compensated. Id. at *4 (citations omitted). In finding that the former Chapter 7 Trustee in that case could not be awarded any" }, { "docid": "18139202", "title": "", "text": "case but dismissed on the debtors’ motion prior to any distribution of funds, also followed the plain meaning rule. Id. at *1, *3. The court so concluded based upon the application of the plain language of Section 326(a), which the court found to be the requirement under case law in the Fifth Circuit. Id. at *3 (citing Pritchard v. United States Trustee (In re England), 153 F.3d 232 (5th Cir.1998)). Under the plain language of Section 326(a), the court found, a Chapter 7 Trustee cannot be compensated based on post-conversion distributions. Id. The court focused its analysis on the phrase “disbursed or turned over by the trustee” as used in Section 326(a). Noting that phrase was not defined in the Bankruptcy Code, the court turned to the dictionary definition of disburse, which means “to pay out.” Thus, the court concluded that the trustee would actually have to distribute funds in order to be compensated. Id. at *4 (citations omitted). In finding that the former Chapter 7 Trustee in that case could not be awarded any compensation, the court stated that, while this may occasionally lead to an unfair result, Congress, not the court, is the proper ven ue in which a remedy could be fashioned. Id. at *3 (citing In re England, 153 F.3d at 237) (“Congress’s decision to set a maximum limit on trustee compensation based only upon moneys disbursed may arguably lead to a trustee receiving inadequate compensation in a particular case, but that is a problem for Congress to remedy.”). The plain language approach to interpreting Section 326(a) was also addressed in In re Meadows, No. 7-97-02526, 2003 WL 477428 (Bankr.W.D.Va. Jan.6, 2003). In Meadows, the Chapter 7 Trustee sought a commission when the debtor’s case, which had originally been closed as a no-asset case, was subsequently reopened after the trustee discovered assets. After the case was reopened, the trustee liquidated assets and applied for his fees. The court granted his fees, but no disbursement was authorized because the order was not based on Section 331, which governs interim compensation for trustees. When no creditors submitted proofs" }, { "docid": "18139212", "title": "", "text": "manner led the court to conclude that Section 326(c) is no longer applicable after a case converts because the limitations apply only if more than one person serves as a trustee when the bankruptcy case is under a particular Chapter of the code. Id. at 796 (citations omitted). In support of this conclusion, Hages cites to Sections 326, 330, and 331 to demonstrate that Congress set forth precise formulas and guidelines for awarding compensation to trustees, and given the context of these provisions, “it is highly unlikely that Congress intended the capricious result” of limiting a former Chapter 7 Trustee’s compensation at the expense of the compensation due the Chapter 13 Trustee. Id. at 796-97. Finally, citing Gill v. Wittenburg (In re Fin. Corp. of Am.), 114 B.R. 221 (9th Cir. BAP 1990), the court agreed that the separate functions performed by the trustees under the different chapters of the Bankruptcy Code eliminated any double-dipping that could occur. In re Hages, 252 B.R. at 797 (citing In re Fin. Corp. of Am., 114 B.R. at 224-25). But see In re Celano, No. CIV.A. 01-310, 2001 WL 1586778 (E.D.La. Dec.7, 2001), aff'd, 54 Fed.Appx. 591 (5th Cir.2002) (rejecting the “constructive disbursement” theory in favor of applying the plain meaning of the statute). E. Compensation Based Upon Section 105 Another theory that favors compensation of former Chapter 7 Trustees is found in In re Ferris, No. 99-13328, 2000 WL 877038 (Bankr.N.D.Cal. June 11, 2000), and In re Owens, No. 99-11881, 2000 WL 1672331 (Bankr.N.D.Cal. Nov.2, 2000), two virtually identical decisions in which Judge Jaroslovsky awarded compensation to former Chapter 7 Trustees based on the court’s powers under Section 105(a). In so holding, the court found that a literal reading of the Bankruptcy Code did not forbid compensation to a former Chapter 7 Trustee who made no distributions to creditors prior to the conversion of the cases, but rather, that the Bankruptcy Code was silent as to compensation in this situation. In re Owens, 2000 WL 1672331, at *1; In re Ferris, 2000 WL 877038, at *1. Likening the situation to one where" }, { "docid": "18139223", "title": "", "text": "Coal Co., 534 U.S. 438, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002)). Those courts which turn to the legislative history of Section 326 for support of their theories fare no better when the Plain Meaning Rule is applied. As stated in this Circuit, “legislative history suggesting an interpretation contrary to a statute’s plan meaning is not necessarily sufficient to override the Plain Meaning Rule.... [Cjourts are not free to replace a statute’s plain meaning with ‘unenacted legislative intent.’ ” Id. at 270 (citing Sigmon Coal, 226 F.3d at 306; United States v. Morison, 844 F.2d 1057, 1064 (4th Cir.1988)). Other factors that the Fourth Circuit cited in Sunterra in declining to adopt the legislative intent of Section 365 over the statute’s plain meaning were that the legislative report cited by the defendantappellee was written several years prior to the statute’s enactment and the fact that the report reflected the views of only a single house committee. Id. In applying the principles outlined in Sunterra and the cases cited therein, this Court concludes that the Plain Meaning Rule should apply to its interpretation of Section 326. In this Court’s view, the language of Section 326(a) is clear and unambiguous: that reasonable compensation to a Chapter 7 Trustee is to be computed based “upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.” It is undisputed that Ruby did not make any distributions or turn over any money in any of the four above-captioned cases. Thus, without any disbursements or money turned over to any parties in interest, there can be no calculation of compensation. See In re Celano, No. CIV.A. 01-310, 2001 WL 1586778, at *3-4 (E.D.La. Dec.7, 2001), aff'd, 54 Fed.Appx. 591 (5th Cir.2002) (unpublished) (noting that the phrase “disbursed or tuned over by the trustee” means that the trustee must have actually paid out funds in order to be compensated); see also In re Meadows, No. 7-97-02526, 2003 WL 477428, at *2-3 (Bankr.W.D.Va. Jan.6, 2003) (finding that Section 326(a) does not authorize compensation" }, { "docid": "18139209", "title": "", "text": "of the estate, the Chapter 7 Trustee is tasked with liquidating the bankruptcy estate; yet, “both are valuable to the estate.” Id. at 225 (citing In re Yale Mining Corp., 59 B.R. at 305). On the issue of whether the statutory cap under Section 326(c) applies, the court stated that a bankruptcy court “may exercise its discretion to award less than the statutory maximum of Section 326(a)” when the Chapter 7 Trustee and the Chapter 11 Trustee are the same person. Id. Along these lines, “Congress presumably addressed its concerns about double compensation for trustees in Subsection 326(c), which prevents multiple trustees under the same Chapter in a case from earning aggregate compensation in excess of the limits stated in Section 326(a).” Id. at 226. D. Constructive Disbursement Theory The “constructive disbursement” theory imputes the distributions made by the Chapter 13 Trustee upon the former Chapter 7 Trustee to calculate the latter’s maximum fee. Unlike Rodriguez and the “multiple” or “composite” trustee theory, however, the “constructive disbursement” theory does not combine the fees of the trustees when applying the statutory cap in Section 326(a). In In re Hages, 252 B.R. 789 (Bankr.N.D.Cal.2000), the court noted its general agreement with the reasoning and conclusion reached in Rodriguez, save the portion that applied the Section 326(a) cap to the amount of compensation a former Chapter 7 Trustee could receive. Id. at 793. The court noted that debtors often convert their Chapter 7 cases to ones under Chapter 13 because the Chapter 7 Trustee has either uncovered assets or taken an action adverse to the debtors and stated that, regardless of whether the Chapter 7 Trustee turns over cash to the Chapter 13 Trustee upon conversion, “the chapter 7 trustee turns over an estate that must generate distributions to creditors under a chapter 13 plan that are equal to or greater than they will receive in Chapter 7.” Id. at 794 (citing 11 U.S.C. § 1325(a)(4)). Thus, the court reasoned that leaving the former Chapter 7 Trustee uncompensated would serve as a disincentive to Chapter 7 Trustees to work to increase the value" }, { "docid": "18139228", "title": "", "text": "to the disbursement language in Section 326(a), that a Chapter 7 Trustee’s compensation would be based “upon the actual disbursement by the Chapter 7 Trustee, or, in a case which has been converted, those disbursements made by the trustee in the converted case” or other language to this effect. Congress, however, did not include such language, and this Court will not read such language into the statute. If Congress desires that Chapter 7 Trustees be compensated in a circumstance where a case is converted prior to any trustee disbursements, then Congress is well-positioned to enact such a change. The Court does not find persuasive the language in In re Rodriguez, which turned to the legislative history of Section 326 to support its decision to award compensation to Chapter 7 Trustees. The Rodriguez court cited to legislative history that discussed payments to interim trustees (those trustees who serve prior to the election of a permanent trustee), as opposed to trustees that subsequently serve following a conversion. See In re Rodriguez, 240 B.R. 912, 914 fn. 1 (Bankr.D.Colo.1999) (citing H.R.Rep. No. 95-595, at 327-28, reprinted in 1977 U.S.C.C.A.N. 5963, 6283-84; S.Rep. No. 95-989, at 38, reprinted in 1978 U.S.C.C.A.N. 5787, 5824). Such a circumstance, however, is not wholly analogous to the situation in the instant matter where two trustees have served while the bankruptcy case was under different Chapters of the Bankruptcy Code. In addition to the legal bases cited above, the Court also finds that certain policy reasons also support the preclusion of compensation for former Chapter 7 Trustees in these circumstances. The first of those policy reasons is based upon the fact that the debtors have a one-time absolute right to convert their case. Section 706 of the Bankruptcy Code provides that: “The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title.” 11 U.S.C. § 706(a). The right to convert a Chapter 7 case to one under another chapter of" }, { "docid": "18139224", "title": "", "text": "Meaning Rule should apply to its interpretation of Section 326. In this Court’s view, the language of Section 326(a) is clear and unambiguous: that reasonable compensation to a Chapter 7 Trustee is to be computed based “upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.” It is undisputed that Ruby did not make any distributions or turn over any money in any of the four above-captioned cases. Thus, without any disbursements or money turned over to any parties in interest, there can be no calculation of compensation. See In re Celano, No. CIV.A. 01-310, 2001 WL 1586778, at *3-4 (E.D.La. Dec.7, 2001), aff'd, 54 Fed.Appx. 591 (5th Cir.2002) (unpublished) (noting that the phrase “disbursed or tuned over by the trustee” means that the trustee must have actually paid out funds in order to be compensated); see also In re Meadows, No. 7-97-02526, 2003 WL 477428, at *2-3 (Bankr.W.D.Va. Jan.6, 2003) (finding that Section 326(a) does not authorize compensation where the trustee makes distributions only to himself and to the debtor). This Court also finds that neither of the enumerated exceptions to the Plain Meaning Rule apply in the instant matter. First, the result does not place Section 326(a) demonstrably at odds with the intention of the drafters. It creates no irreconcilable conflict with itself or with neighboring statutes. In fact, the contrary appears true, that any interpretation other than an application of the plain meaning would place Section 326(a) in conflict with itself and with neighboring statutes. Were former Chapter 7 Trustees allowed to recover compensation in this instance, it is conceivable that former Chapter 13 Trustees could, in the future, profess a like entitlement to a percentage of the funds that a Chapter 7 Trustee gathers and distributes after a case is converted from a Chapter 13 case to a Chapter 7 case. Such claim would clearly be in contravention to Section 326(b), which plainly allows only a Chapter 13 Trustee to recover only a percentage of all Chapter 13 plan payments." }, { "docid": "18139213", "title": "", "text": "224-25). But see In re Celano, No. CIV.A. 01-310, 2001 WL 1586778 (E.D.La. Dec.7, 2001), aff'd, 54 Fed.Appx. 591 (5th Cir.2002) (rejecting the “constructive disbursement” theory in favor of applying the plain meaning of the statute). E. Compensation Based Upon Section 105 Another theory that favors compensation of former Chapter 7 Trustees is found in In re Ferris, No. 99-13328, 2000 WL 877038 (Bankr.N.D.Cal. June 11, 2000), and In re Owens, No. 99-11881, 2000 WL 1672331 (Bankr.N.D.Cal. Nov.2, 2000), two virtually identical decisions in which Judge Jaroslovsky awarded compensation to former Chapter 7 Trustees based on the court’s powers under Section 105(a). In so holding, the court found that a literal reading of the Bankruptcy Code did not forbid compensation to a former Chapter 7 Trustee who made no distributions to creditors prior to the conversion of the cases, but rather, that the Bankruptcy Code was silent as to compensation in this situation. In re Owens, 2000 WL 1672331, at *1; In re Ferris, 2000 WL 877038, at *1. Likening the situation to one where the Ninth Circuit Court of Appeals found that, despite the Bankruptcy Code’s failure to provide for payment of fees to a debtor’s counsel in a Chapter 7 case, such fees should be allowed because the omission of such a provision was a “mistake” and policy considerations favored allowing such compensation, so also Judge Jaroslovsky found compensation was favored in Ferris and Owens. In re Owens, 2000 WL 1672331, at *1; In re Ferns, 2000 WL 877038, at *1 (both citing United States Trustee v. Garvey, Schubert & Barer (In re Century Cleaning Servs., Inc.), 195 F.3d 1053, 1060 (9th Cir.1999)). Judge Jaroslovsky placed an equal amount of emphasis on the argument that equitable concerns favored compensating the former Chapter 7 Trustees, who, the court found, completed their jobs “diligently and effectively.” In re Owens, 2000 WL 1672331, at *1; In re Ferris, 2000 WL 877038, at *2. Citing Section 105(a), Judge Jaroslovsky concluded, ‘When the Bankruptcy Code does not specifically forbid compensation, Century Cleaning makes it clear that the court should do what is right," }, { "docid": "18139218", "title": "", "text": "unnecessary to look beyond the bounds of the Bankruptcy Code to award compensation to former Chapter 7 Trustees in converted cases, as that court found that the authority under which to award compensation to a trustee in those situations existed under Section 330 of the code, which establishes a standard of reasonableness in determining trustee compensation. Id. at 784 fn. 7. Similar to the courts in Moore, Berry, and Washington, the court found that Section 326(a) did not preclude compensation to a former Chapter 7 Trustee in the instant circumstances and thus did not impose maximum limitations when determining compensation under Section 330 to the former Chapter 7 Trustees. Id. at 782-83. The court explained also that, in its view, Section 326(c) also did not serve to limit former Chapter 7 Trustees from receiving compensation in converted cases. According to that court, “Section 326(c) was designed to solve a perceived problem in liquidating cases under the Bankruptcy Act where the receiver and the succeeding trustee could receive maximum compensation for performing the same functions,” and could result in “double-dipping,” thus depriving creditors of those monies. Id. at 783. The court went on to reason that, while Section 326(c) addresses potential abuses by multiple trustees serving in the same case, it does not address compensation of former trustees in converted cases. Citing the fact that Chapter 7 Trustees and Chapter 13 Trustees engage in distinct tasks in the respective stages of the case in which they serve, the court found that compensation for each of the trustees should be independently determined under Section 330, without application of Section 326(c). Id. G. Analysis Upon consideration of the numerous theories discussed above, this Court concludes the more compelling position is that which precludes awarding compensation based upon the plain language of Section 326(a). This Court finds, as did the courts in Fischer, Woodworth, Murphy, Celano, and Meadows, that Congress has spoken clearly in Section 326(a), and thus, it would be inappropriate for this Court to look beyond the bounds of the statute to formulate a basis upon which to award Ruby compensation. Our" }, { "docid": "18139227", "title": "", "text": "that while the result of precluding compensation to the former Chapter 7 Trustee may be seen as harsh, Section 326(a) is clear and unambiguous and must be applied, despite any perceived harshness. Additionally, as the courts in Celano and Meadows explain, Congress is the proper venue in which to seek a remedy to any problem with the result of applying statutory language. Such principle has been recently addressed by the Fourth Circuit: “As the Supreme Court has repeatedly emphasized, ... Congress is the policymaker — not the courts. [P]ut simply, the modification of a statutory provision to achieve a preferable policy outcome is a task reserved to Congress.” Id. at 269 (citations omitted). Congress was fully aware that bankruptcy cases may be converted, either voluntarily or upon the motion of a party in interest by virtue of the numerous provisions in the Code addressing conversions. Further, Congress was doubtlessly aware of the absolute right of conversion it elected to confer upon Chapter 7 debtors pursuant to Section 706(a). Thus, Congress could have stated, with regard to the disbursement language in Section 326(a), that a Chapter 7 Trustee’s compensation would be based “upon the actual disbursement by the Chapter 7 Trustee, or, in a case which has been converted, those disbursements made by the trustee in the converted case” or other language to this effect. Congress, however, did not include such language, and this Court will not read such language into the statute. If Congress desires that Chapter 7 Trustees be compensated in a circumstance where a case is converted prior to any trustee disbursements, then Congress is well-positioned to enact such a change. The Court does not find persuasive the language in In re Rodriguez, which turned to the legislative history of Section 326 to support its decision to award compensation to Chapter 7 Trustees. The Rodriguez court cited to legislative history that discussed payments to interim trustees (those trustees who serve prior to the election of a permanent trustee), as opposed to trustees that subsequently serve following a conversion. See In re Rodriguez, 240 B.R. 912, 914 fn. 1" }, { "docid": "18139204", "title": "", "text": "of claim, the trustee filed a motion to disburse the funds, with the first distribution to himself and the remainder to the debt- or. Id. at *1. The court found that, while the cases of Fischer, Murphy, and Celano were factually distinguishable and thus did not supply controlling authority, the Cela-no case contained the legal basis upon which to find that the trustee was not entitled to compensation. In choosing to follow the plain meaning rule, the court, like in Celano, noted that Congress should be tasked with remedying any inherent unfairness that might result in unusual circumstances such as the ones that court faced. Id. at *1-2 (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); In re Celano, 2001 WL 1586778, at *3-4). The court flatly rejected applying Section 105(a) to award compensation to the trustee, finding that a remedy under Section 105(a) was not available unless express statutory requirements otherwise applied. Id. at *2 (citing United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir.1986) (“bankruptcy courts do not have the power ‘to create substantive rights that are otherwise unavailable under applicable law, or constitute a roving commission to do equity’ ”); Tennessee Student Assistance Corp. v. Mort, 272 B.R. 181, 184 (W.D.Va.2002) (same)). Finally, the court in Meadows addressed those cases in which either a strict application of Sections 326 and 330 had been eschewed or some other argument had been advanced to find that compensating a Chapter 7 Trustee is proper, stating that those decisions all sought to compensate a Chapter 7 Trustee for their diligent work in generating dividends from estate property, regardless of intervening events that may have prevented disbursement. Id. at *2. Despite the fact that “[ajdequate compensation in each case would promote the goal of ensuring diligent attention to all cases,” the court concluded that, “notwithstanding this court’s conviction that neither equity nor the best interest of the administration of the Bankruptcy Code are served by denying [the trustee] compensation under § 326(a), the decision of Congress, as reflected in its" }, { "docid": "18139226", "title": "", "text": "While the issue posed in this hypothetical is not before the Court, it does add further support to the Court’s conclusion that Congress sought, by the plain language of Section 326(a), to likewise limit Chapter 7 Trustees’ compensation based upon the distributions they make in a case. Further, the result of interpreting Section 326(a) using the Plain Meaning Rule, while it may produce an unpopular result, such does not rise to the level required to trigger the absurdity exception. In re Sunterra, 361 F.3d at 268 (citing Maryland State Dep’t of Educ. v. United States Dep’t. of Veterans Affairs, 98 F.3d 165, 169 (4th Cir.1996)) (to trigger the absurdity exception, “the issue is not whether the result would be ‘unreasonable,’ or even ‘quite unreasonable,’ but whether the result would be absurd.”). Many courts have fashioned remedies to award a former Chapter 7 Trustee compensation in situations similar to the ones currently before this Court, seemingly to avoid penalizing the trustees and to avoid the appearance of an inequitable result. It is this Court’s view, however, that while the result of precluding compensation to the former Chapter 7 Trustee may be seen as harsh, Section 326(a) is clear and unambiguous and must be applied, despite any perceived harshness. Additionally, as the courts in Celano and Meadows explain, Congress is the proper venue in which to seek a remedy to any problem with the result of applying statutory language. Such principle has been recently addressed by the Fourth Circuit: “As the Supreme Court has repeatedly emphasized, ... Congress is the policymaker — not the courts. [P]ut simply, the modification of a statutory provision to achieve a preferable policy outcome is a task reserved to Congress.” Id. at 269 (citations omitted). Congress was fully aware that bankruptcy cases may be converted, either voluntarily or upon the motion of a party in interest by virtue of the numerous provisions in the Code addressing conversions. Further, Congress was doubtlessly aware of the absolute right of conversion it elected to confer upon Chapter 7 debtors pursuant to Section 706(a). Thus, Congress could have stated, with regard" }, { "docid": "18139200", "title": "", "text": "Being a chapter 7 trustee is a difficult and risky business. While the trustee is entitled to a statutory part of the filing fee, currently $60.00, that amount rarely compensates the trustee for the time spent on the case. Trustees can only hope that by achieving certain efficiencies by way of volume and by making a substantial fee in an occasional case, that the work of a trustee will be profitable. One of the risks that trustees take is that even if there are nonexempt assets in the case, that the debtor will convert the case to chapter 13 or obtain dismissal of the case short of final administration. This is one of those cases. Id. Also adopting this theory was the court in In re Murphy, 272 B.R. 483 (Bankr.D.Colo.2002). Noting that, despite what would otherwise qualify as reasonable compensation under Section 330(a), the Murphy court concluded that the plain language of Section 326(a) commanded that Chapter 7 Trustees should receive only a percentage of those funds actually disbursed, and that nothing in the statutory scheme indicated any different result in cases that had been converted from Chapter 7 to Chapter 13 prior to any disbursements being made. Id. at 485. The court reasoned that “trustees are expected to perform the essential tasks of scrutinizing a debtor’s assets, schedules, and conduct,” and often, the trustee will determine that there are no assets to collect and distribute. In those cases, the Chapter 7 Trustees are limited under Sections 326 and 330 to compensation in the form of a small portion of the debtor’s filing fee. Id. at 486. Thus, “[g]iven this reality, it is anomalous to project that Congress intended an unstated exception to the often harsh workings of section 326(a) to apply in Chapter 7 cases that convert to Chapter 13.” Id. at 486 fn. 8. The court in In re Celano, No. CIV.A. 01-310, 2001 WL 1586778 (E.D.La. Dec.7, 2001), aff'd, 54 Fed.Appx. 591 (5th Cir.2002) (unpublished), refusing to impute post-conversion disbursement upon a former Chapter 7 Trustee in a case that was converted to a Chapter 11" }, { "docid": "18139193", "title": "", "text": "the ag gregate compensation of such persons for such service may not exceed the maximum compensation prescribed for a single trustee by subsection (a) or (b) of this section, as the case may be.” Id. § 326(c). The language of Section 326 becomes the source of controversy when a former Chapter 7 Trustee seeks compensation in a case that is converted to one under Chapter 13 prior to the disbursement of any monies by the trustee in the Chapter 7 case. Several theories exist regarding whether a former Chapter 7 Trustee in a converted case is entitled to compensation when he has made no distribution to the creditors, including that of quantum meruit, which is posited by Ruby as the basis for his recovery of compensation and expenses. Other theories include the “multiple” or “composite” trustee theory; the theory that the plain language of Section 326(a) precludes such an award; the theory that the Chapter 13 case should be treated as separate and distinct from the Chapter 7 case; the “constructive disbursement” theory; and the theory that fees may be awarded pursuant to Section 105 of the Bankruptcy Code. A. “Multiple” or “Composite” Trustee Theory The case of In re Rodriguez, 240 B.R. 912 (Bankr.D.Colo.1999), aptly explains the “multiple” or “composite” trustee theory, which focuses on the statutory cap language in Section 326. In that case, the former Chapter 7 Trustee sought the allowance of an administrative expense for fees and out-of-pocket costs for time he spent investigating the debtors’ financial situation and in filing an adversary proceeding objecting to the debtors’ discharge prior to the debtors converting their case. Id. at 913. The Court found that, while the Bankruptcy Code espoused a clear policy that trustees be adequately and fairly compensated, Congress had also sought to limit the total compensation to trustees. Id. at 915 (citing In re Arius, Inc., 237 B.R. 843 (Bankr.M.D.Fla.1999)). In so finding, however, the Court rejected a strict application of Section 326(a), which would preclude a former Chapter 7 Trustee from receiving compensation if a Chapter 7 case converted prior to any disbursement being" }, { "docid": "18139210", "title": "", "text": "trustees when applying the statutory cap in Section 326(a). In In re Hages, 252 B.R. 789 (Bankr.N.D.Cal.2000), the court noted its general agreement with the reasoning and conclusion reached in Rodriguez, save the portion that applied the Section 326(a) cap to the amount of compensation a former Chapter 7 Trustee could receive. Id. at 793. The court noted that debtors often convert their Chapter 7 cases to ones under Chapter 13 because the Chapter 7 Trustee has either uncovered assets or taken an action adverse to the debtors and stated that, regardless of whether the Chapter 7 Trustee turns over cash to the Chapter 13 Trustee upon conversion, “the chapter 7 trustee turns over an estate that must generate distributions to creditors under a chapter 13 plan that are equal to or greater than they will receive in Chapter 7.” Id. at 794 (citing 11 U.S.C. § 1325(a)(4)). Thus, the court reasoned that leaving the former Chapter 7 Trustee uncompensated would serve as a disincentive to Chapter 7 Trustees to work to increase the value of the estate for the benefit of the creditors. Id. In determining that the Section 326(a) cap did not apply, the Hages court cited several problems that would result were that section to apply. First, the court notes that the more value added to the estate by the Chapter 7 Trustee, the less compensation he would receive post-conversion. Id. at 795-96. Second, the court points to an inconsistent result between converted cases where more than one person serves as a trustee, in which the cap would apply, versus those converted cases where the same person is appointed as trustee, in which the cap would not apply, which it interprets would be the result if the Rodriguez court’s reasoning were applied. Id. at 796 (citing In re Rodriguez, 240 B.R. 912, 914 fn. 1 (Bankr.D.Colo.1999)). Instead, the Hages court reads the phrase “trustee in the case” in Section 326(c) as referring not to the case as a whole, but to the “case under chapter 7” (or Chapter 11, 12, or 13). Reading the statute in this" }, { "docid": "18139194", "title": "", "text": "theory that fees may be awarded pursuant to Section 105 of the Bankruptcy Code. A. “Multiple” or “Composite” Trustee Theory The case of In re Rodriguez, 240 B.R. 912 (Bankr.D.Colo.1999), aptly explains the “multiple” or “composite” trustee theory, which focuses on the statutory cap language in Section 326. In that case, the former Chapter 7 Trustee sought the allowance of an administrative expense for fees and out-of-pocket costs for time he spent investigating the debtors’ financial situation and in filing an adversary proceeding objecting to the debtors’ discharge prior to the debtors converting their case. Id. at 913. The Court found that, while the Bankruptcy Code espoused a clear policy that trustees be adequately and fairly compensated, Congress had also sought to limit the total compensation to trustees. Id. at 915 (citing In re Arius, Inc., 237 B.R. 843 (Bankr.M.D.Fla.1999)). In so finding, however, the Court rejected a strict application of Section 326(a), which would preclude a former Chapter 7 Trustee from receiving compensation if a Chapter 7 case converted prior to any disbursement being made by him or her. The court stated that those courts strictly applying Section 326(a) improperly read the final phrase of Section 326(a) (which references the disbursement of moneys by the trustee) “to be limited to the person who served as trustee while the bankruptcy case was pending under chapter 7.” Id. at 914 (citing In re Frost, 214 B.R. 295 (Bankr.S.D.N.Y.1997); In re Fischer, 210 B.R. 467 (Bankr.D.Minn.1997); In re Berry, 166 B.R. 932 (Bankr.D.Or.1994)). Instead, the court in Rodriguez interpreted the final phrase of Section 326(a) as referring to a generic, “composite” trustee and to an aggregate of the distributions made by any trustee at any point during the administration of the case. Id. at 915. Thus, the total aggregate compensation that a Chapter 7 Trustee could receive would be limited by the cap set forth in Section 326(a) as applied to the aggregate disbursements made by any trustee that served in the case. Id. at 915-16. The court concluded that, because the case had been converted and both the Chapter 7 and" } ]

[ { "docid": "22758573", "title": "", "text": "a “direct collision” between the Federal Rule and the state law. 380 U. S., at 472. In Hanna itself the “clash” between Rule 4 (d) (1) and the state in-hand service requirement was “unavoidable.” 380 U. S., at 470. The first question must therefore be whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the Court. It is only if that question is answered affirmatively that the Hanna analysis applies. As has already been noted, we recognized in Hanna that the present case is an instance where “the scope of the Federal Rule [is] not as broad as the losing party urge[s], and therefore, there being no Federal Rule which cover[s] the point in dispute, Erie command[s] the enforcement of state law.” Ibid. Rule 3 simply states that “[a] civil action is commenced by filing a complaint with the court.” There is no indication that the Rule was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In our view, in diversity actions Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations. Cf. 4 C. Wright & A. Miller, Federal Practice and Procedure § 1057, pp. 190-191 (1969); id., § 1051, at 165-166. In contrast to Rule 3, the Oklahoma statute is a statement of a substantive decision by that State that actual service on, and accordingly actual notice by, the defendant is an integral part of the several policies served by the statute of limitations. See C & C Tile Co. v. Independent School District No. 7 of Tulsa County, 503 P. 2d 554, 559 (Okla. 1972). The statute of limitations establishes a deadline after which the defendant may legitimately have peace of mind; it also recognizes that after a certain period of time it is unfair to require the defendant to attempt to piece together his defense to an old claim. A requirement of actual service promotes both" } ]

[ { "docid": "22758581", "title": "", "text": "of the relevant State.” 380 U. S., at 472. Mr. Justice Harlan in his concurring opinion in Hanna concluded that Ragan was no longer good law. 380 U. S., at 474-478. See also Sylvestri v. Warner & Swasey Co., 398 F. 2d 598 (CA2 1968). This is not to suggest that the Federal Rules of Civil Procedure are to be narrowly construed in order to avoid a “direct collision” with state law. The Federal Rules should be given their plain meaning. If a direct collision with state law arises from that plain meaning, then the analysis developed in Hanna v. Plumer applies. “Rule 3 simply provides that an action is commenced by filing the complaint and has as its primary purpose the measuring of time periods that begin running from' the date -of commencement; the rule does not state that filing tolls the statute of limitations.” 4 C. Wright & A. Miller, Federal Practice and Procedure § 1057, p. 191 (1969) (footnote omitted). The Note of the Advisory Committee on the Rules states: “When a Federal or State statute of limitations is pleaded as a defense, a question may arise under this rule whether the mere filing of the complaint stops the running of the statute, or whether any further step is required, such as, service of the summons and complaint or their delivery to the marshal for service. The answer to this question may depend on whether it is competent for the Supreme Court, exercising the power to make rules of procedure without affecting substantive rights, to vary the operation of statutes of limitations. The requirement of Rule 4 (a) that the clerk shall forthwith issue the summons and deliver it to the marshal for service will reduce the chances of such a-question arising.” 28 IT. S. C. App., pp. 394-395. This Note establishes that the Advisory Committee predicted the problem which arose in Ragan and arises again in the instant case. It does not indicate, however, that Rule 3 was intended to serve as a tolling provision for statute of limitations purposes; it only suggests that the Advisory" }, { "docid": "20151877", "title": "", "text": "the Hanna Analysis In addressing the first question under Hanna — whether § 768.72 directly collides with a Federal Rule — it is first necessary to discern the relevant rule. This initial task is one over which district courts facing state punitive damage pleading rules have differed. Some courts, including the only district court to identify a Rule conflicting with the Florida statute, see Citron, 721 F.Supp. at 1261, as well as the parties now before this court, have identified Federal Rule 9(g) as the focus of potential conflict with the state provision. See also, NAL II, Ltd v. Tonkin, 705 F.Supp. at 528 (finding Kansas statute in conflict with Rule 9(g)). Rule 9(g) requires that “[w]hen items of special damages are claimed, they shall be specifically stated.” Yet read in light of the Supreme Court’s pronouncements in Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), the court finds no unavoidable conflict between Rule 9(g) and § 768.72. In Walker, the Court reaffirmed its pre-Hanna holding in Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed 1520 (1949), that the provision in Federal Rule 3 commencing a civil action upon the “filing” of a complaint does not conflict with state statutes of limitations which commence lawsuits upon service of the summons and complaint. Walker, 446 U.S. at 750-51, 100 S.Ct. at 1985-86. Though the language of Rule 3 and the Oklahoma statute of limitation provision seemed to conflict on their face, the Court explained: There is no indication that [Rule 3] was intended to toll a statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In our view, in diversity actions, Rule 3 governs the date from which various timing requirements of the federal rules begin to run, but does not affect state statutes of limitations. Id. (footnotes omitted). Similarly, Rule 9(g) can co-exist with § 768.72. Though the Rule “requires, in mandatory language, that a claim for punitive damages be set forth in a party’s" }, { "docid": "14040147", "title": "", "text": "at bar is deemed dismissed under the court rule and as the statutory period for said claim has passed and as Plaintiff has not sought to refile this claim prior to January 11, 1980, under Michigan law, Plaintiff’s suit is barred by the statute of limitations. It is necessary to conduct a similar analysis of relevant federal law. Although the Sixth Circuit recently stated that “federal courts must look to Rules 3 and 4 of the FRCP to determine when an action is commenced” United States v. Wahl, 583 F.2d 285, 287 (CA 6 1978), the opposite conclusion was authoritatively pronounced by the Supreme Court in Walker v. Armco Steel Corporation, 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). There the court stated: ... in diversity actions Rule 3 governs the date from which various timing requirements of the federal rules begin to run, but does not affect state statutes of limitations. Id. at 1989 (footnote omitted) The Walker court noted that “Rule 3 simply provides that an action is commenced by filing the complaint and has as its primary purpose the measuring of time periods that begin running from the date of commencement; the rule does not state that filing tolls the statute of limitations.” Id. 446 U.S. at 750, 100 S.Ct. at 1985, 64 L.Ed.2d at 668, n.10. In so doing, the Court conclusively stated that Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) did not overrule its previous opinion rendered in Ragan v. Merchants Transfer and Warehouse Company, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). In Ragan, supra, the Supreme Court required application of the Kansas statutory definition of “commencement” of an action rather than the definition of “commencement” under Federal Rule 3 in determining when the Kansas statute of limitations was tolled. The court held that the Kansas “commencement” statute was an “integral part” of that State’s statute of limitations and under the principles of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and Guaranty Trust, supra, the “commencement”" }, { "docid": "10914006", "title": "", "text": "with or displacing state tolling statutes, the Court looked to Oklahoma law, requiring service of process to toll the statute of limitations, and concluded, therefore, that Oklahoma’s service requirements were “an integral part of the state statute of limitations.” Id. at 752, 100 S.Ct. at 1986. Accordingly, the Supreme Court held that the lawsuit was time-barred, commenting: “There is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants.” Id. at 753, 100 S.Ct. at 1986. See also Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) (reaching the same result on comparable facts prior to Hanna and the more searching analysis of Walker). By contrast, in Hanna, where the Supreme Court was confronted for the first time with a case where the applicable Federal Rule was in direct collision with a state law, the Court sanctioned service of process upon the defendant’s wife at his home, as permitted under Fed.R.Civ.P. 4(b), and did not require personal service upon the defendant as called for by a Massachusetts statute. Hanna exemplifies that scenario, therefore, where the Federal Rule: (1) was sufficiently broad to cover the issue, and (2) did not affront either the Enabling Act or the Constitution since it resulted “only in altering the way in which process was served” and did not alter “the mode of enforcement of state-created rights in a fashion sufficiently ‘substantial’ to raise the sort of equal protection problems to which the Erie opinion alluded.” Hanna, 380 U.S. at 469, 85 S.Ct. at 1143. Since Walker, which “laid to rest the notion that Rule 3 can ever be used to toll a state statute of limitations in a diversity case arising under state law,” Converse v. General Motors Corp., 893 F.2d 513, 516 (2d Cir.1990) (quoting Fischer v. Iowa Mold Tooling" }, { "docid": "8753547", "title": "", "text": "of both Hanna and Erie, but focused on the Hanna analysis as the starting place for determining the validity and applicability of a federal rule when there is a different state law provision. “The first question must, therefore, be whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the court. It is only if that question is answered affirmatively that the Hanna analysis applies,” the Court said. It then added in a footnote: This is not to suggest that the Federal Rules of Civil Procedure are to be narrowly construed in order to avoid a “direct collision” with state law. The Federal Rules should be given their plain meaning. If a direct collision with state law arises from that plain meaning, then the analysis developed from Hanna v. Plumer applies. The Walker Court then compared the scope of Fed.R.Civ.P. 3, providing that a civil action is commenced by filing a complaint, with an Oklahoma statute that provided that an action was not deemed to be “commenced” for purposes of the statute of limitations until a summons was served on the defendant. The state statute further provided that, if the complaint was filed within the limitations period, the action was deemed to have commenced on the date of filing if the plaintiff served the defendant within 60 days, even though service occurred after the limitations period had run. The Court found that Rule 3 did not affect the tolling of the statute of limitation, but, in contrast, the Oklahoma statute “[was] an integral part of the several policies served by the statute of limitations.” The Court then held that, because the scope of Rule 3 was not broad enough to control the issue before the district court, and because there was no direct conflict between the Federal Rule and the state law, the Hanna analysis did not apply and Erie required the application of the Oklahoma statute in a federal diversity action. In contrast to the situation in Walker, there is a direct conflict between Rule 38 and the Mississippi statute. Fed.R.App.P. 38" }, { "docid": "7911391", "title": "", "text": "MERRITT, Chief Judge. This case arises out of an automobile accident that occurred on January 13, 1992. Plaintiffs-Appellants, citizens of Ohio, sued Defendants-Appellees, a Kentucky company and its employee, in a diversity action in federal court in Kentucky. The complaint was filed on January 11,1994, within the two-year period in which a motor vehicle injury action must be commenced under the Kentucky limitations statute. See Ky.Rev.Stat. Ann. § 304.39-230 (Baldwin 1987). Under Kentucky law, however, an action is deemed commenced not at the time a complaint is filed, but rather “on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.” Ky.Rev.Stat.Ann. § 413.250 (Baldwin 1991). This statutory directive is echoed in Rule 3 of the Kentucky Rules of Civil Procedure, which states that “[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.” Because a summons was not issued until April 5, 1994, the action did not “commence” for state law purposes until after the statute of limitations had run. The District Court held that the state definition of commencement, and not the one found in the Federal Rules, should apply in this diversity case, and it accordingly sustained defendants’ motion for summary judgment. The issue in this case is whether recent amendments to Rule 4 of the Federal Rules of Civil Procedure have brought the Rules into direct conflict with Kentucky law governing the commencement of actions. Finding no conflict, we affirm the district court’s holding that the state statute of limitation bars this litigation. Plaintiffs argue that Hanna v. Plu-mer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), requires a different result than that reached below. In Hanna the Supreme Court held that, where there is a “direct collision” between a Federal Rule of Civil Procedure and state law, the Federal Rule should apply if it is within the scope of the Rules Enabling Act and within the constitutional power of Congress. Id. at 464, 85" }, { "docid": "8289479", "title": "", "text": "1854(c)(1). But Congress has plenary power to override the Federal Rules, so its enactments, unlike those of the States, prevail even in case of a conflict. . But see, e.g., Asher v. Abbott Labs., 290 App. Div. 2d 208, 737 N.Y.S.2d 4 (2002) (treble damages under N. Y. Gen. Bus. Law Ann. § 340(5) are nonwaivable, wherefore class actions under that law are barred). . Our decision in Walker v. Arinco Steel Corp., 446 U.S. 740, 100 S. Ct. 1978, 64 L. Ed. 2d 659 (1980), discussed by the dissent, post, at 441, 448, n. 8, 176 L. Ed. 2d, at 344, 349, is not to the contrary. There we held that Rule 3 (which provides that a federal civil action is “ ‘commenced’ ” by filing a complaint in federal court) did not displace a state law providing that “ ‘[a]n action shall be deemed commenced, within the meaning of this article [the statute of limitations], as to each defendant, at the date of the summons which is served on him . . . ” 446 U.S., at 743, n. 4, 100 S. Ct. 1978, 64 L. Ed. 2d 659 (quoting Okla. Stat., Tit. 12, § 97 (1971); alteration in original; emphasis added). Rule 3, we explained, “governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations’’ or tolling rules, which it did not “purpor[t] to displace.’’ 446 U.S., at 751, 750, 100 S. Ct. 1978, 64 L. Ed. 2d 659. The texts were therefore not in conflict. While our opinion observed that the State’s actual-service rule was (in the State’s judgment) an “integral part of the several policies served by the statute of limitations,’’ id., at 751, 100 S. Ct. 1978, 64 L. Ed. 2d 659, nothing in our decision suggested that a federal court may resolve an obvious conflict between the texts of state and federal rules by resorting to the state law’s ostensible objectives. . The dissent also suggests that we should read the Federal Rules “ ‘with sensitivity to important state interests’" }, { "docid": "20151878", "title": "", "text": "v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed 1520 (1949), that the provision in Federal Rule 3 commencing a civil action upon the “filing” of a complaint does not conflict with state statutes of limitations which commence lawsuits upon service of the summons and complaint. Walker, 446 U.S. at 750-51, 100 S.Ct. at 1985-86. Though the language of Rule 3 and the Oklahoma statute of limitation provision seemed to conflict on their face, the Court explained: There is no indication that [Rule 3] was intended to toll a statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In our view, in diversity actions, Rule 3 governs the date from which various timing requirements of the federal rules begin to run, but does not affect state statutes of limitations. Id. (footnotes omitted). Similarly, Rule 9(g) can co-exist with § 768.72. Though the Rule “requires, in mandatory language, that a claim for punitive damages be set forth in a party’s complaint,” NAL II, Ltd, v. Tonkin, 705 F.Supp. at 528, it makes no reference as to when such damages are to be set forth in the complaint. It only requires that, when plead, they be plead specifically. Conceivably, a state statute could allow a right of action to punitive damages to accrue only six months after the filing of a lawsuit or only after a plaintiff prevailed on its underlying compensatory claim. Neither these delays in the pleading of punitive damages nor that engendered by § 768.72’s requirement of some minimum reasonable basis determination directly conflicts with Rule 9(g). The specificity required by 9(g) has no more effect on the timing of a state punitive damage claim than Rule 3 does on the tolling of a state statute of limitation. The Florida statute, however, does directly and irreconcilably conflict with Federal Rule 8. Rule 8(a)(2) provides that a plaintiffs complaint establishes a claim by setting forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Section 768.72 obviously" }, { "docid": "10914005", "title": "", "text": "of the state would not apply “‘in matters governed by the Federal Constitution or by Acts of Congress.’ ” Id. 2. In determining whether a matter is governed by a Federal Rule of Civil Procedure, the initial inquiry is whether the rule is “sufficiently broad to control the issue before the Court.” Walker, 446 U.S. at 749-50, 100 S.Ct. at 1984. If so, the rule governs unless the court determines that it is invalid because it transgresses the Constitution or the Rules Enabling Act. 3. If the federal rule is not sufficiently broad to cover the point in dispute or is invalid, then “ ‘Erie command[s] the enforcement of state law.’ ” Id. at 750, 100 S.Ct. at 1984 (quoting Hanna, 380 U.S. at 470, 85 S.Ct. at 1143). The Walker Court held that Fed.R.Civ.P. 3 “does not affect state statutes of limitations” but simply “governs the date from which various timing requirements of the Federal Rules begin to run.” Id. at 751, 100 S.Ct. at 1985. Since there was no federal rule in conflict with or displacing state tolling statutes, the Court looked to Oklahoma law, requiring service of process to toll the statute of limitations, and concluded, therefore, that Oklahoma’s service requirements were “an integral part of the state statute of limitations.” Id. at 752, 100 S.Ct. at 1986. Accordingly, the Supreme Court held that the lawsuit was time-barred, commenting: “There is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants.” Id. at 753, 100 S.Ct. at 1986. See also Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) (reaching the same result on comparable facts prior to Hanna and the more searching analysis of Walker). By contrast, in Hanna, where the Supreme Court was confronted for the first time with a case" }, { "docid": "1680346", "title": "", "text": "Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), The Supreme Court expanded on its holding in Erie. In Hanna, the Supreme Court held that in diversity actions, if there is a “direct collision” between a Federal Rule of Civil Procedure and state procedural law, federal law must control. Id. at 472, 85 S.Ct. at 1144. In Hanna, the collision was between Rule 4(d)(1) of the Federal Rules of Civil Procedure and a Massachusetts state statute governing service of process. Massachusetts law required in-hand service on an executor or administrator of an estate, while Rule 4 permitted service by leaving copies of the summons and complaint at the defendant’s home with a person of “suitable age and discretion”. Procedurally, the two statutes were in direct conflict. In ruling that service was to be governed by Rule 4(d)(1) rather than by the state statute, the Court distinguished the case from Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and its progeny. In Hanna, although the Court’s choice of law might have affected the outcome of the case, adherence to the state law would have resulted only in changing the manner in which process was served. Importantly, application of federal procedural law under those facts would not have encouraged forum shopping. Plaintiff asserts that under Hanna, sections 50-e and 50 — i of the New York State General Municipal Law are not applicable to state claims heard in federal court. The Supreme Court's holding in Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), however, demonstrates that state law must rule in the instant case. In Walker, the Supreme Court held that a federal court should follow state law rather than Rule 3 of the Federal Rules of Civil Procedure in determining when an action is commenced for the purpose of tolling a state statute of limitations. In that case, an Oklahoma statute provided that an action was deemed commenced upon service of the summons on the defendant. Rule 3, however, provides that a civil action" }, { "docid": "7911392", "title": "", "text": "did not “commence” for state law purposes until after the statute of limitations had run. The District Court held that the state definition of commencement, and not the one found in the Federal Rules, should apply in this diversity case, and it accordingly sustained defendants’ motion for summary judgment. The issue in this case is whether recent amendments to Rule 4 of the Federal Rules of Civil Procedure have brought the Rules into direct conflict with Kentucky law governing the commencement of actions. Finding no conflict, we affirm the district court’s holding that the state statute of limitation bars this litigation. Plaintiffs argue that Hanna v. Plu-mer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), requires a different result than that reached below. In Hanna the Supreme Court held that, where there is a “direct collision” between a Federal Rule of Civil Procedure and state law, the Federal Rule should apply if it is within the scope of the Rules Enabling Act and within the constitutional power of Congress. Id. at 464, 85 S.Ct. at 1140. Plaintiffs find a direct collision in that Kentucky law requires issuance of a summons to commence a case, whereas the Federal Rules deem a civil action commenced at the filing of the complaint. See Fed.R.Civ.P. 8. In addition, Plaintiffs note that the Federal Rules encourage waiver of service, id. at 4(d), and allow service of the summons at any time within 120 days from the filing of the complaint, id. at 4(m), and are thus fundamentally at odds with the Kentucky procedure. Indeed, it appears that this suit could continue if federal, rather than state, procedural rules were applied. Were Hanna the only Supreme Court opinion on point, and were we reasoning only from that opinion, Plaintiffs would have a strong argument. But Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), is directly on point. There the Court, affirming Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), specifically held that “in diversity actions Rule 3 governs" }, { "docid": "7911394", "title": "", "text": "the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations.” Walker, 446 U.S. at 751, 100 S.Ct. at 1985. The Court went on to conclude that, “[sjinee there is no direct conflict between the Federal Rule and the state law, the Hanna analysis does not apply.” Id. at 752, 100 S.Ct. at 1986. Plaintiffs argue that the 1993 amendments to Rule 4, which provide for waiver of service, were not considered by the Court in its Walker decision in 1980. They say that the new amendments bring the current version of the Federal Rules into direct conflict with state law. This contention is inconsistent with Walker. The Supreme Court’s holding in Walker was based on a finding that Rule 3 was not intended to affect the tolling of state limitations statutes. The Court reached this conclusion in spite of the fact that Rule 3 specifically governs the date of commencement of federal actions. The new Rule 4 is a much poorer candidate than Rule 3 in the search for a direct conflict with state limitations law. Nothing in the text of the rule relates in any way to the tolling of limitations statutes. Nor does it appear that the rule was intended by its drafters to change Walker. In fact, the Advisory Committee recognized that state law would be unaffected by the new amendments: Some state limitations laws may toll an otherwise applicable statute at the time when the defendant receives notice of the action. Nevertheless, the device of requested waiver of service is not suitable if a limitations period which is about to expire is not tolled by the filing of the action. Unless there is ample time, the plaintiff should proceed directly to the formal methods for service identified in subdivisions (e), (f), or (h). Fed.R.Civ.P. 4 advisory committee notes, 1993 amendments (emphasis added). Plaintiffs argue that by altering the definition of “direct collision,” post-Walker cases suggest that state and federal tolling rules are in conflict and that the federal rule should thus apply. See Stewart" }, { "docid": "3778069", "title": "", "text": "v. Armco Steel Corp., 446 U.S. 740, 752, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), the Supreme Court held that “in diversity actions Rule 3 [of the Federal Rules of Civil Procedure on commencement of the action] governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations.” Id. at 751, 100 S.Ct. 1978. More specifically, Walker held that a federal court sitting in diversity should adhere to state procedural (service) requirements integral to the state law (statute of limitations) so long as there is no federal rule directly on point. Id. at 752-53, 100 S.Ct. 1978; see also Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533-34, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) (finding that the state statute of limitations that requires service to commence an action controls rather than Fed.R.Civ.P. 3); 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1057 (2d ed. 1987) (discussing commencement of actions in diversity cases involving statutes of limitations). This holding has been reiterated by other courts of appeals. “[T]he Federal Rules of Civil Procedure determine the date from which various timing requirements begin to run. They do not, however, affect the commencement of a lawsuit. Rather, state commencement rules apply.” Larsen v. Mayo Med. Ctr., 218 F.3d 863, 867 (8th Cir.2000) (involving timeliness of a malpractice action under the state statute of limitations) (citations omitted). Given the close kinship between statutes of limitations and statutes of repose, this reliance on state law to resolve action commencement issues raised by state statutes of limitations also applies to state statutes of repose. Massachusetts law, however, is unsettled on the specific point of whether the filing of the motion for leave to amend the complaint to add a party or the filing of the amended complaint itself after approval of the motion to amend by the court constitutes the commencement of the action for the purpose of the statutes of repose. In Tindol, the SJC considered whether the allowance by the trial court of a" }, { "docid": "7911393", "title": "", "text": "S.Ct. at 1140. Plaintiffs find a direct collision in that Kentucky law requires issuance of a summons to commence a case, whereas the Federal Rules deem a civil action commenced at the filing of the complaint. See Fed.R.Civ.P. 8. In addition, Plaintiffs note that the Federal Rules encourage waiver of service, id. at 4(d), and allow service of the summons at any time within 120 days from the filing of the complaint, id. at 4(m), and are thus fundamentally at odds with the Kentucky procedure. Indeed, it appears that this suit could continue if federal, rather than state, procedural rules were applied. Were Hanna the only Supreme Court opinion on point, and were we reasoning only from that opinion, Plaintiffs would have a strong argument. But Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), is directly on point. There the Court, affirming Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), specifically held that “in diversity actions Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations.” Walker, 446 U.S. at 751, 100 S.Ct. at 1985. The Court went on to conclude that, “[sjinee there is no direct conflict between the Federal Rule and the state law, the Hanna analysis does not apply.” Id. at 752, 100 S.Ct. at 1986. Plaintiffs argue that the 1993 amendments to Rule 4, which provide for waiver of service, were not considered by the Court in its Walker decision in 1980. They say that the new amendments bring the current version of the Federal Rules into direct conflict with state law. This contention is inconsistent with Walker. The Supreme Court’s holding in Walker was based on a finding that Rule 3 was not intended to affect the tolling of state limitations statutes. The Court reached this conclusion in spite of the fact that Rule 3 specifically governs the date of commencement of federal actions. The new Rule 4 is a much poorer candidate than" }, { "docid": "1680347", "title": "", "text": "choice of law might have affected the outcome of the case, adherence to the state law would have resulted only in changing the manner in which process was served. Importantly, application of federal procedural law under those facts would not have encouraged forum shopping. Plaintiff asserts that under Hanna, sections 50-e and 50 — i of the New York State General Municipal Law are not applicable to state claims heard in federal court. The Supreme Court's holding in Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), however, demonstrates that state law must rule in the instant case. In Walker, the Supreme Court held that a federal court should follow state law rather than Rule 3 of the Federal Rules of Civil Procedure in determining when an action is commenced for the purpose of tolling a state statute of limitations. In that case, an Oklahoma statute provided that an action was deemed commenced upon service of the summons on the defendant. Rule 3, however, provides that a civil action is commenced by filing a complaint. In Walker, the petitioner filed a complaint within Oklahoma’s two year statute of limitations but failed to serve the respondent with a summons until after the limitation period. The Court, in applying the Oklahoma statute stated that where the Federal Rule is not so broad as to cover the points in dispute, Erie commands enforcement of state law. The Court noted that Rule 3 simply states that “[a] civil action is commenced by filing a complaint with the court.” The court reasoned that there was no indication that the Rule was intended to toll a state statute of limitations. Rather, in diversity cases, Rule 3 simply governs the date from which various timing requirements of the Federal Rules begin to run. The Court held that this was not a “direct collision” within the meaning of Hanna. Rather, the Court found that in contrast to the procedural basis of Rule 3, the Oklahoma statute was based upon a “substantive decision by that State that actual service on and accordingly, actual" }, { "docid": "1341178", "title": "", "text": "other, and the principle of Erie R. Co. v. Tompkins is transgressed.” 337 U.S. at 533, 69 S.Ct. at 1234. Ragan was arguably eroded by the court’s conclusion in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), that Rule 4, Fed.R.Civ.P. governed the manner of serving process in federal diversity actions, to the exclusion of state rules. The Court’s broad language suggested that the relevant rules are federal in all suits in federal court, unless contrary to the Rules Enabling Act or the Constitution; and that there is no Erie choice to be made. 380 U.S. at 471, 85 S.Ct. at 1144. At least Justice Harlan and the Second Circuit thought the decision might have sounded a death knell for Ragan. Hanna v. Plumer, supra, at 474-78, 85 S.Ct. at 1145-48 (Harlan, J., concurring); Sylvestri v. Warner and Swasey Co., 398 F.2d 598 (2d Cir.1968). So it was when the Court resolved doubts about Ragan in Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). The Court held that Rule 3 did not affect the service requirements integral to state statutes of limitations. The Court concluded the Rule was not so broad: Rule 3 simply states that “[a] civil action is commenced by filing a complaint with the court.” There is no indication that the Rule was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In our view, in diversity actions Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations. 446 U.S. at 750-51, 100 S.Ct. at 1985. The Court held that the service requirements in the Oklahoma prescriptive statute were an integral part of the statute because the state’s insistence on service was to promote its policies to promote repose and to protect defendants from stale claims. Thus, Erie, Guaranty Trust Co. v. York, and Ragan required district courts to apply them in diversity cases." }, { "docid": "1341179", "title": "", "text": "(1980). The Court held that Rule 3 did not affect the service requirements integral to state statutes of limitations. The Court concluded the Rule was not so broad: Rule 3 simply states that “[a] civil action is commenced by filing a complaint with the court.” There is no indication that the Rule was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations. In our view, in diversity actions Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations. 446 U.S. at 750-51, 100 S.Ct. at 1985. The Court held that the service requirements in the Oklahoma prescriptive statute were an integral part of the statute because the state’s insistence on service was to promote its policies to promote repose and to protect defendants from stale claims. Thus, Erie, Guaranty Trust Co. v. York, and Ragan required district courts to apply them in diversity cases. Id. at 751-52, 100 S.Ct. at 1985-86. There is little doubt but that the service requirement in Article 3462 reflects a determination by the Louisiana legislature that absent proper venue, only service provides adequate notice. The statute promotes the fundamental purposes of the Louisiana prescriptive statutes, which are “to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or non-preservation of relevant proof.” Allstate Ins. Co. v. Theriot, 376 So.2d 950, 954 (La.1979). Filing suit alone, if in the wrong parish, is not likely to give notice. We are persuaded that the requirement is integral to the Louisiana prescriptive statutes, and not supplanted by Rule 3. The result the Mullens urge would have the anomalous effect of rendering Article 3462’s service requirement inapplicable in every removed action even though the statute is fully applicable in Louisiana suits and in diversity suits filed originally in federal court. Such differing measures of the cause of action would step on Erie R." }, { "docid": "691010", "title": "", "text": "93 L.Ed. 1524 (1949) [foreign corporation could not maintain suit where state courts were closed to it]. It is clear that Hanna v. Plumer, supra, did not overrule Ragan. The rule in Hanna, that federal procedural rules govern diversity cases, applies by its terms only where there is a direct conflict between a state procedural rule and the applicable federal rule. Walker v. Armco Steel Co., 446 U.S. 740, 749-50 at fn. 9, 100 S.Ct. 1978, 1984-85, 64 L.Ed.2d 659 (1980). There was no direct conflict in Ragan, and there is none in the case now before us, because Federal Rule 3 was never intended to define commencement of federal lawsuits for purposes of tolling state statutes of limitation. Id. at 750-51,100 S.Ct. at 1985-86. Walker v. Armco Steel Co., supra, involved an Oklahoma statute which provided that a lawsuit was not commenced for purposes of tolling the statute of limitations until process was served. In Walker, a plaintiff filed suit before the statute of limitations ran, but did not achieve service of process until after the limitations period had run. The federal district court dismissed the case as barred by the statute of limitations. The Court of Appeals affirmed. A unanimous Supreme Court also affirmed the decision and held that Rule 3 was not intended to toll a state statute of limitations. Id. at 748-51, 100 S.Ct. 1981-85. The Court further held that there was therefore no direct conflict between Rule 3 and the Oklahoma statute in question. Each could control within its own sphere. Id. at 751-52,100 S.Ct. at 1985-86. Finally, the Court stated: “... There is simply no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants. The policies underlying diversity jurisdiction do not support such a distinction between state and federal plaintiffs, and Erie and its progeny do not permit it.”" }, { "docid": "12059565", "title": "", "text": "whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the Court.” Walker, 446 U.S. at 749-50, 100 S.Ct. at 1985. Justice Marshall, writing for the Court in Walker, also makes clear that only in cases of direct conflict between state and federal procedural rules does the Hanna analysis apply. Walker, 446 U.S. at 750 n. 9, 100 S.Ct. at 1985 n. 9. Walker does not require us to read Fed.R.Civ.P. 3 narrowly in order to avoid this conflict; rather, the Court instructs us that the federal rules are to be “given their plain meaning.” Id. Thus, it is clear that rule 3 is sufficiently broad to control the issue of the date of the commencement of the action. Furthermore, there is a direct con flict between state and federal law as to the date of commencement. While an analysis of Ragan, Hanna, and Walker supports our holding, it is helpful to consider in addition the purpose behind rule 3. The Walker Court quoted approvingly from Professors Wright and Miller’s treatise on federal practice, which states: “Rule 3 simply provides that an action is commenced by filing the complaint and has as its primary purpose the measuring of time periods that begin running from the date of commencement; the rule does not state the filing tolls the statute of limitations.” Walker, 446 U.S. at 750 n. 10, 100 S.Ct. at 1985 n. 10 (emphasis added) (quoting from 4 C. Wright and A. Miller, Federal Practice and Procedure § 1057, at 191 (1969)). The Hughes’ action does not present a tolling problem. Even so, Justice Marshall’s discussion of the policies involved in construing a federal-state procedural rule conflict in Walker is helpful. The Court states: In contrast to Rule 3, the Oklahoma statute is a statement of a substantive decision by that State that actual service on, and accordingly actual notice by, the defendant is an integral part of the several policies served by the statute of limitations. See C & C Tile Co. v. Independent School District No. 7 of Tulsa County, 503" }, { "docid": "1680348", "title": "", "text": "is commenced by filing a complaint. In Walker, the petitioner filed a complaint within Oklahoma’s two year statute of limitations but failed to serve the respondent with a summons until after the limitation period. The Court, in applying the Oklahoma statute stated that where the Federal Rule is not so broad as to cover the points in dispute, Erie commands enforcement of state law. The Court noted that Rule 3 simply states that “[a] civil action is commenced by filing a complaint with the court.” The court reasoned that there was no indication that the Rule was intended to toll a state statute of limitations. Rather, in diversity cases, Rule 3 simply governs the date from which various timing requirements of the Federal Rules begin to run. The Court held that this was not a “direct collision” within the meaning of Hanna. Rather, the Court found that in contrast to the procedural basis of Rule 3, the Oklahoma statute was based upon a “substantive decision by that State that actual service on and accordingly, actual notice by the defendant [w]as an integral part of the several policies served by the statute of limitations.” Id. at 751, 100 S.Ct. at 1985. The service requirement was an integral part of the statute of limitations. Accordingly, the service rule was deemed “part and parcel” of the statute of limitations. Rule 3 was simply not designed to displace those state those policies. Id. Accordingly, finding no direct conflict between the Federal Rule and the state law, the Court applied Oklahoma law. Applying Walker and the policy considerations of Erie to this case, the court finds no direct conflict between General Municipal Law sections 50-e and 50 — i and Rules 3 and 4. Oklahoma’s commencement rule was bound up or “part and parcel” of the state statute of limitations. New York’s General Municipal Law’s commencement rule is not merely “part and parcel” of New York’s statute of limitations but also provides an express statutory condition precedent to bringing a suit against a municipality. Unlike Hanna, the statute in question does more than govern the" } ]

[ { "docid": "14279184", "title": "", "text": "Payne v. Tennessee, — U.S. -, -, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991) (quoting McCleskey v. Kemp, 481 U.S. at 305, 107 S.Ct. at 1774). Moreover, when, as in this case, a jury generally inexperienced in sentencing decisions is entrusted with “so grave [a] determination” as “whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. at 189, 96 S.Ct. at 2932 (opinion of Stewart, Powell, and Stevens, JJ.). The means by which sentencing discretion can be narrowed and directed are varied. See id. at 195, 96 S.Ct. at 2935 (opinion of Stewart, Powell, and Stevens, JJ.). For example, a legislature can limit the types of murders for which capital punishment may be imposed. See Lowenfield v. Phelps, 484 U.S. 231, 244-45, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988). Alternatively, it can require proof of specific aggravating factors. Id. In this case, Congress appears to have done both: limiting the type of homicide for which the death penalty can be imposed to intentional murders committed in relation to a serious drug crime, and providing for specific aggravating factors that must be found before a sentence of death can be considered. See United States v. Pretlow, 779 F.Supp. at 772. Nevertheless, Mr. Pitera and amici contend that the statutory scheme is constitutionally inadequate.- The court addresses in turn the particular cited deficiencies. A. Vagueness of the Crime Amici submit that the crime outlined in 21 U.S.C. § 848(e)(1)(A) is unconstitutionally vague. Specifically, they argue that the statute, in failing to specify the relationship to be proved between the defendant and the killing, between the enterprise and the killing, and between the defendant and. the enterprise, risks arbitrary imposition of the death penalty. Amici further suggest that the statute violates due process in singling out certain drug-related murders for capital punishment when other equally or more heinous murders are not so punished. Neither argument has merit. 1. Eighth Amendment Vagueness Generally, a vagueness challenge to" } ]

[ { "docid": "16891280", "title": "", "text": "violates the Ex Post Facto Clause of the Constitution. Frank’s additional challenges to the facial validity of the FDPA are, fourth, that the evidentiary standard prescribed for the penalty phase of the trial is insufficiently rigorous; fifth, that the Act provides inadequate appellate and proportionality review; and sixth, that the death penalty is per se unconstitutional under the Eighth Amendment. The Court notes at the outset that all of the arguments advanced by Frank for the FDPA’s facial uneonstitutionality have been rejected by other courts confronted with death penalty prosecutions under the Act. A growing body of case law, derived largely from district court opinions and a few circuit opinions, has developed considering various challenges to the FDPA and its precursor, the Anti-Drug Abuse Act of 1988. Without exception, these opinions have upheld both Acts’ constitutionality. See, e.g., United States v. Jones, 132 F.3d 232 (5th Cir.1998) (considering similar challenges to the FDPA); United States v. Tipton, 90 F.3d 861 (4th Cir.1996) (considering similar challenges to the Anti-Drug Abuse Act), cert. denied, — U.S. -, 117 S.Ct. 2414, 138 L.Ed.2d 179 (1997); United States v. McCul lah, 76 F.3d 1087 (10th Cir.1996) (same), cert. denied, — U.S. -, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997); United States v. Kaczynski, 96 Civ. 259 (GEB), 1997 WL 716487 (E.D.Cal. Nov. 7, 1997) (considering challenges to the FDPA); United States v. Nguyen, 928 F.Supp. 1525 (D.Kan.1996) (same); United States v. Davis, 912 F.Supp. 938 (E.D.La.1996) (same), aff'd, 132 F.3d 1454 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1331, 140 L.Ed.2d 492 (1998); United States v. McVeigh, 944 F.Supp. 1478 (D.Col.1996) (same); United States v. Pitera, 795 F.Supp. 546 (E.D.N.Y.1992) (considering challenges to Anti-Drug Abuse Act). This Court has considered on its own the merits of Frank’s arguments, but nevertheless concludes that it agrees with the other courts that have considered these issues. In sum, the Court does not find the FDPA constitutionally infirm for any of the reasons advanced by Frank. 1. The FDPA’s Incorporation of Non-Statutory Aggravating Factors First, the Court rejects the argument that the use of non-statutory aggravating" }, { "docid": "14441249", "title": "", "text": "facts to the grand jury which in turn, returned the Second Superseding Indictment which contains the statutory aggravating factors and mental culpability requirements. In fact, the Defendants concede this point in their joint brief. (Defs Jt. Mot. at 4). For the foregoing reasons, this Court find that Defendants’ constitutional challenge of the FDPA’s on the basis that its provisions do not conform to the requirements of Ap-prendi and Ring is without merit. b. Evidentiary Standard Employed at Sentencing Phase Defendants Taylor and Thomas rely on a recent decision by the United States District Court for the District of Vermont in support of their argument that the FDPA is unconstitutional due to the relaxed evidentiary standard employed during the penalty phase of a death penalty case. See United States v. Fell, 217 F.Supp.2d 469, 489 (D.Vt.2002). In Fell, the court held that the relaxed evidentiary standard provided under the FDPA for the penalty phase of a capital prosecution violates a defendant’s rights under the Due Process Clause of the Fifth Amendment and confrontation and cross-examination provisions of the Sixth Amendment. Id. at 485. For the following reasons, this Court respectfully declines to follow the analysis set forth in Fell and finds that the eviden-tiary standard found in § 3593(c) of the FDPA upholds the constitutional required balance between the needs for heightened reliability and individualized sentencing by enabling the judge, as gatekeeper, to bar unreliable or unfair sentencing information. See 18 U.S.C. § 3593(c). The ultimate question raised with Defendants’ challenge to § 3593 is whether the FDPA must incorporate the Federal Rules of Evidence into its provisions to withstand constitutional scrutiny. This Court finds, as other courts have, that the Due Process Clause of the Fifth Amendment and the rules of evidence are not synonymous. See United States v. Mikos, No. 02 CR 137-1, 2003 WL 22110948, at *10 (N.D.Ill. Sept. 11, 2003). Rather, “the Due Process Clause is the baseline standard with which a statute must comply to remain fundamentally fair, and the rules of evidence is a set of heightened procedural rules that go beyond the minimum standards" }, { "docid": "5267454", "title": "", "text": "90, 98 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d 253, 267-71 (S.D.N.Y.1998); United States v. Nguyen, 928 F.Supp. 1525, 1546-47 (D.Kan.1996); United States v. McVeigh, 944 F.Supp. 1478, 1487 (D.Colo.1996). . But see Jones, 132 F.3d at 248-49 (noting that the FDPA narrows the jury's discretion to impose the death penalty in federal homicide prosecutions by \"requirfing] the jury first to find that the defendant had the requisite intent”); Minerd, 176 F.Supp.2d at 441 (same); United States v. Cooper, 91 F.Supp.2d 90, 97 (D.D.C.2000) (same). .The Indictment Clause states that No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger .... U.S. Const, amend. V. . The Fifth Amendment right to grand jury indictment does not extend to state prosecutions. See generally Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). As a result, the Supreme Court in Ring did not raise the issue of indictment, and it was not specifically addressed. See Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428 (\"Ring does not contend that his indictment was constitutionally defective.”). . Ring, 536 U.S. at 609, 122 S.Ct. 2428. . See also United States v. Foster, 2004 WL 225084 at *1 (D.Md. Jan.27, 2004) (\"The FDPA's failure to require inclusion of the mens rea elements and aggravating factors in the indictment does not render the Act unconstitutional.”); United States v. Taylor, 302 F.Supp.2d 901, 904 (N.D.Ind.2003) (\"[T]he Court finds the Government has satisfied the requirement that any fact that is the functional equivalent of an element of the offense be charged in the indictment by presenting the Second Superseding Indictment which contains the .statutory aggravating factors and mental culpability requirements.”); United States v. Mikos, 2003 WL 22110948 at *5 (N.D.Ill. Sept.11, 2003) (\"[T]he Court finds that the superseding indictment and the Notice of Special Findings filed by the government on November 14, 2002 satisfies" }, { "docid": "14441252", "title": "", "text": "consideration of evidence during sentencing hearings. See Schlup v. Delo, 513 U.S. 298, 326, n. 44, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)(holding that reduced procedural protections at sentencing is appropriate); Romano v. Oklahoma, 512 U.S. 1, 7, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994)(holding that “traditional latitude ... extends to evidentiary rules as sentencing proceedings”); Payne v. Tennessee, 501 U.S. 808, 820-21, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)(holding that “a sentencing authority has always been free to consider a wide range of relevant material”). Moreover, aside from Fell, the federal courts that have entertained the issue of § 3593’s constitutionality have upheld it. See Mikos, 2003 WL 22110948, at *12; Matthews, 246 F.Supp.2d at 146; United States v. Regan, 221 F.Supp.2d 672, 681-83 (E.D.Va.2002); United States v. Minerd, 176 F.Supp.2d 424, 434-36 (W.D.Pa.2001); United States v. Frank, 8 F.Supp.2d 253, 268 (S.D.N.Y.1998); United States v. Nguyen, 928 F.Supp. 1525, 1546-47 (D.Kan.1996), cert. denied, 525 U.S. 1167, 119 S.Ct. 1086, 143 L.Ed.2d 87 (1999); United States v. Pitera, 795 F.Supp. 546, 565 (E.D.N.Y.1992), cert. denied, 510 U.S. 1131, 114 S.Ct. 1103, 127 L.Ed.2d 415 (1994); United States v. Llera Plaza, 179 F.Supp.2d 444, 452-53 (E.D.Pa.2001). Therefore, for the reasons outlined above, Defendants Taylor and Thomas’s challenge to the FDPA on the grounds of a “relaxed” evidentiary standard must be rejected. However, out of an abundance of caution, this Court will apply the Federal Rules of Evidence if this case proceeds to the sentencing phase of the trial. 2. Non-statutory Aggravating Factors need not be included in the Indictment In their second challenge to the FDPA, Defendants Thomas and Taylor argue that the FDPA is unconstitutional because it fails to require the inclusion of non-statutory aggravating factors in the indictment. Specifically, Thomas and Taylor contend that the non-statutory aggravating factors operate as the functional equivalent of an element of the offense and therefore they should be presented to the grand jury and included in the indictment. The Defendants argue that the FDPA runs counter to Ring and Apprendi, since it does not treat the non-statutory aggravating factors as the functional" }, { "docid": "21754043", "title": "", "text": "3122418 at *6-*7 (W.D. La. July 3, 2014) (rejecting “claim that the FDPA is unconstitutional because of an incompre hensible sentencing scheme”); United States v. Coonce, Case No. 10-cr-3029, 2014 WL 1018081, *22 (W.D.Mo. Mar. 14, 2014) (\"The Court ... joins with other district courts in concluding that the submissions fall short of the mark in establishing that the FDPA is unconstitutional.”); United States v. Sablan, Case No. 08-cr-259, 2014 WL 172543, *4 (E.D. Cal. Jan. 15, 2014) (\"This Court agrees with the other courts that have addressed and rejected the position taken by Defendant ... on whether the FDPA is incomprehensible.”). See also United States v. Williams, Case No. 08-cr-00070, 2013 WL 1335599, *17-*18 (M.D. Pa. Mar. 29, 2013) United States v. Jacques, 2011 WL 1675417, *11-*13 (D. Vt. May 4, 2011); United States v. Taylor, 635 F.Supp.2d 1243, 1247 (D.N.M. 2009); United States v. Green, Case No. 06-cr-19, 2008 WL 4000901, *2 (W.D. Ky. Aug. 26, 2008) (holding empirical studies, including the Capital Jury Project, “provide[] no basis for undermining the constitutionality of the FDPA, a statute that has withstood innumerable attacks since its passage in 1994”); United States v. Mikos, Case No. 02-cr-137, 2003 WL 22110948, *17-*19 (N.D. Ill. Sept. 11, 2003) (\"There is no justification prior to trial for this court to hold that the sentencing jury will be unable to comprehend the provisions of the FDPA or the instructions provided by the court or counsel.”); United States v. Regan, 228 F.Supp.2d 742, 746 (E.D. Va. 2002) (holding same); United States v. Llera Plaza, 179 F.Supp.2d 444, 450 (E.D. Pa. 2001) (holding studies cited \"do not establish that the concepts of aggravating and mitigating factors as used in the FDPA bear such a degree of intrinsic incomprehensibility as to render them incapable of clarification through adequate juty instructions”). . The Court finds that Defendant’s argument relying on 18 U.S.C. § 3593 is premature at this time because § 3593 is the functional equivalent of Rule 403 of the Federal Rules of Evidence. Section 3593 governs the information—that is, evidence—relating to the mitigating and aggravating factors, not" }, { "docid": "14441251", "title": "", "text": "required by the Fifth Amendment.” Id. In actuality, § 3593(c) is broader in scope than Rule 403, the corresponding exclusionary provision under the Federal Rule of Evidence. While both provisions balance the probative value of evidence against the prejudicial effect, Rule 403 allows a trial judge to exclude evidence only if its probative value is substantially outweighed by its prejudicial effect whereas § 3593(c) permits exclusion of evidence whenever its prejudicial effect outweighs its probative value. Under both provisions, the judge, as gatekeeper, has the ability to exclude any evidence from trial that he deems overly prejudicial, confusing, or misleading. As a result, the FDPA enables a judge to act in compliance with the constitutional constraints of the Fifth and Sixth Amendments. Thus, the evidentiary provisions of the FDPA “should result in the exclusion of evidence that would violate the accused’s right to a fair trial.” Id. (quoting United States v. Matthews, 246 F.Supp.2d 137, 146 (N.D.N.Y.2002)). Furthermore, it should be noted that the Supreme Court has consistently upheld sentencing schemes that allow for broad consideration of evidence during sentencing hearings. See Schlup v. Delo, 513 U.S. 298, 326, n. 44, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)(holding that reduced procedural protections at sentencing is appropriate); Romano v. Oklahoma, 512 U.S. 1, 7, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994)(holding that “traditional latitude ... extends to evidentiary rules as sentencing proceedings”); Payne v. Tennessee, 501 U.S. 808, 820-21, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)(holding that “a sentencing authority has always been free to consider a wide range of relevant material”). Moreover, aside from Fell, the federal courts that have entertained the issue of § 3593’s constitutionality have upheld it. See Mikos, 2003 WL 22110948, at *12; Matthews, 246 F.Supp.2d at 146; United States v. Regan, 221 F.Supp.2d 672, 681-83 (E.D.Va.2002); United States v. Minerd, 176 F.Supp.2d 424, 434-36 (W.D.Pa.2001); United States v. Frank, 8 F.Supp.2d 253, 268 (S.D.N.Y.1998); United States v. Nguyen, 928 F.Supp. 1525, 1546-47 (D.Kan.1996), cert. denied, 525 U.S. 1167, 119 S.Ct. 1086, 143 L.Ed.2d 87 (1999); United States v. Pitera, 795 F.Supp. 546, 565 (E.D.N.Y.1992), cert." }, { "docid": "13055858", "title": "", "text": "3593(a).. The Act does not contain any requirement that the statutory aggravating factors be presented to the grand jury and treated as “the functional equivalents of elements” of the offense. This silence, however, is not enough to render the statute facially unconstitutional, even if Ring requires that such factors be set forth in the indictment. A statute, whether it defines substantive crimes or sets forth sentencing factors, does not provide specifics indicating what must be presented to a grand jury. The requirements for what must be contained in the indictment are governed by Federal Rule of Criminal Procedure 7(c) and court decisions. Although the FDPA provides for a formal notice of intent it does not preclude the Government from alleging the intent factor and any statutory aggravating factors in the indictment. As noted by other courts, the fact that the statute does not expressly provide for a role for the grand jury does not render it unconstitutional. See United States v. Sampson, 245 F.Supp.2d 327, 336 (D.Mass.2003)(“[t]he Federal Death Penalty Act does not conflict with or contradict the grand jury process that is now prescribed by [Jones, Apprendi, and Ring ].”); United States v. Johnson, 239 F.Supp.2d 924, 935-46 (N.D.Iowa 2003) (upholding constitutionality of death penalty provisions of 21 U.S.C. § 848); United States v. Regan, 221 F.Supp.2d 672 (E.D.Va.2002) (upholding constitutionality of death penalty provisions of FDPA). C. Challenge to the FDPA’s Evidentia-ry Standard Defendant’s final challenge to the constitutionality of the FDPA is based on the evidentiary standard used in the sentencing phase of a capital trial. The Act provides that: At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592.... Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. 18 U.S.C. § 3593(c). Defendant argues that this relaxed standard of evidence violates" }, { "docid": "13055859", "title": "", "text": "or contradict the grand jury process that is now prescribed by [Jones, Apprendi, and Ring ].”); United States v. Johnson, 239 F.Supp.2d 924, 935-46 (N.D.Iowa 2003) (upholding constitutionality of death penalty provisions of 21 U.S.C. § 848); United States v. Regan, 221 F.Supp.2d 672 (E.D.Va.2002) (upholding constitutionality of death penalty provisions of FDPA). C. Challenge to the FDPA’s Evidentia-ry Standard Defendant’s final challenge to the constitutionality of the FDPA is based on the evidentiary standard used in the sentencing phase of a capital trial. The Act provides that: At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592.... Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. 18 U.S.C. § 3593(c). Defendant argues that this relaxed standard of evidence violates his Fifth Amendment due process rights and Sixth Amendment guarantees of confrontation and cross-examination. Defendant contends that based on the Supreme Court’s concern for heightened reliability in capital cases and Ring’s statement that aggravating circumstances operate as the “functional equivalent of elements of a greater offense” the evidence proffered in support of these factors must be subject to the same constitutional protections as the evidence proffered in support of the guilt determination. Defendant relies primarily on the district court decision in United States v. Fell, 217 F.Supp.2d 469, 489 (D.Vt.2002), which held that the FDPA was unconstitutional as its relaxed eviden-tiary standard requirement did not provide the adequate constitutional protection required in a death-eligibility determination. According to Fell, this level of protection requires that the evidence be subject to the constraints of the Federal Rules of Evidence. See Fell, 217 F.Supp.2d at 488-89. As in Defendant’s challenge based on the Indictment Clause, the specific holding in Ring does not compel this result. Even if the aggravating factors are to be treated as the functional equivalent" }, { "docid": "5267453", "title": "", "text": "Intent to Seek the Death Penalty must be denied. An appropriate order will issue. . 18 U.S.C. § 3591 et seq. . See also United States v. Cuong Gia Le, Criminal Action No. 1:03cr48 (E.D.Va. July 20, 2004) (Order denying government's motion for reconsideration). . See also United States v. Johnson, 239 F.Supp.2d 924, 946 (N.D.Iowa 2003) (holding that the FDPA \"expressly supplants only the rules of evidence, not constitutional standards .... [The trial court] retains the authority under the statute to impose upon the parties any standards of admissibility or fairness dictated by the Fifth and Sixth Amendments”) (emphasis in original). . See, e.g., Fell, 360 F.3d at 146; Jones, 132 F.3d at 241; United States v. Haynes, 269 F.Supp.2d 970, 983-87 (W.D.Tenn.2003); Battle, 264 F.Supp.2d at 1105-07; United States v. Davis, 2003 WL 1837701, at *11 (E.D.La. Apr.9, 2003); Johnson, 239 F.Supp.2d at 944-46; Matthews, 246 F.Supp.2d at 141-46; United States v. Regan, 221 F.Supp.2d 672, 681-83 (E.D.Va.2002); United States v. Minerd, 176 F.Supp.2d 424, 435-36 (W.D.Pa.2001); United States v. Cooper, 91 F.Supp.2d 90, 98 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d 253, 267-71 (S.D.N.Y.1998); United States v. Nguyen, 928 F.Supp. 1525, 1546-47 (D.Kan.1996); United States v. McVeigh, 944 F.Supp. 1478, 1487 (D.Colo.1996). . But see Jones, 132 F.3d at 248-49 (noting that the FDPA narrows the jury's discretion to impose the death penalty in federal homicide prosecutions by \"requirfing] the jury first to find that the defendant had the requisite intent”); Minerd, 176 F.Supp.2d at 441 (same); United States v. Cooper, 91 F.Supp.2d 90, 97 (D.D.C.2000) (same). .The Indictment Clause states that No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger .... U.S. Const, amend. V. . The Fifth Amendment right to grand jury indictment does not extend to state prosecutions. See generally Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). As" }, { "docid": "5267455", "title": "", "text": "a result, the Supreme Court in Ring did not raise the issue of indictment, and it was not specifically addressed. See Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428 (\"Ring does not contend that his indictment was constitutionally defective.”). . Ring, 536 U.S. at 609, 122 S.Ct. 2428. . See also United States v. Foster, 2004 WL 225084 at *1 (D.Md. Jan.27, 2004) (\"The FDPA's failure to require inclusion of the mens rea elements and aggravating factors in the indictment does not render the Act unconstitutional.”); United States v. Taylor, 302 F.Supp.2d 901, 904 (N.D.Ind.2003) (\"[T]he Court finds the Government has satisfied the requirement that any fact that is the functional equivalent of an element of the offense be charged in the indictment by presenting the Second Superseding Indictment which contains the .statutory aggravating factors and mental culpability requirements.”); United States v. Mikos, 2003 WL 22110948 at *5 (N.D.Ill. Sept.11, 2003) (\"[T]he Court finds that the superseding indictment and the Notice of Special Findings filed by the government on November 14, 2002 satisfies the constitutional requirements of the Indictment Clause.\"); United States v. Sampson, 245 F.Supp.2d 327, 336 (D.Mass.2003) (\"Recognizing a role for the grand jury in deciding whether a defendant shall be subject to the death penalty does not require a rewriting of the Federal Death Penalty Act. The statutory roles of the Department of Justice, the judge, and the jury are not altered.”); United States v. Acosta-Martinez, 265 F.Supp.2d 181, 185 (D.P.R.2003) (\"[T]here is nothing in the FDPA or elsewhere that precludes the Government from alleging the aggravating factors in the indictment.”); United States v. Haynes, 269 F.Supp.2d 970, 981 (W.D.Tenn.2003) (\"[T]he Court rejects Defendant’s contention that a grand jury has no authority to make ‘special findings’ concerning death-eligibility factors.”); Johnson, 239 F.Supp.2d at 944; United States v. Denis, 246 F.Supp.2d 1250, 1255 (S.D.Fla.2002); Regan, 221 F.Supp.2d at 679-81; Lentz, 225 F.Supp.2d at 677-82; United States v. Church, 218 F.Supp.2d 813, 815 (W.D.Va.2002). . A facial challenge to a legislative act is \"the most difficult challenge to mount successfully, since the challenger must establish that no" }, { "docid": "2109166", "title": "", "text": "places where public opinion is formed. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 239-40 (1962). V. SAMPSON HAS STANDING TO PRESENT HIS CHALLENGES TO THE FDPA, BUT ONLY SOME ARE RIPE TO BE RESOLVED NOW Sampson asks the court to declare now, prior to trial, that the FDPA is unconstitutional on nine grounds. Although supported by voluminous appendices, Sampson characterizes his motion as a “facial challenge” to the statute. Many courts have addressed as facial challenges prior to trial the issues Sampson presents and have usually rejected them. See, e.g., United States v. Llera Plaza, 179 F.Supp.2d 444 (E.D.Pa.2001); United States v. Minerd, 176 F.Supp.2d 424 (W.D.Pa.2001); United States v. Bin Laden, 126 F.Supp.2d 290 (S.D.N.Y.2001) (citing cases); United States v. Cooper, 91 F.Supp.2d 90 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d 253 (S.D.N.Y.1998); United States v. Kaezynski, CR-S-96-259, 1997 WL 716487 (E.D.Cal. Nov. 7, 1997); United States v. Nguyen, 928 F.Supp. 1525 (D.Kan.1996); United States v. McVeigh, 944 F.Supp. 1478 (D.Colo.1996). But see United States v. Fell, 217 F.Supp.2d 469 (D.Vt.2002), appeal docketed, No. 02-1638 (2d Cir.2002); Quinones, 205 F.Supp.2d 256 (S.D.N.Y.2002), rev’d, 313 F.3d 49 (2d Cir.2002), reh’g denied, 317 F.3d 86 (2d Cir.2003). However, the First Circuit has not decided any of the issues Sampson presents. Therefore, except for any issues decided by the Supreme Court, there is no precedent that this court must follow in deciding Sampson’s many challenges to the FDPA. In opposing Sampson’s earlier motion seeking a declaration that the FDPA was unconstitutional on its face after the Supreme Court’s decision in Ring, supra, the government argued that: To sustain such a challenge to a federal statute, the defendant has a supremely high hurdle: 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. The fact that ta federal statute] ... might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since [the Supreme Court" }, { "docid": "21740112", "title": "", "text": "v. Minerd, 176 F.Supp.2d 424 (W.D.Pa.2001); Cooper, 91 F.Supp.2d 90; United States v. DesAnges, 921 F.Supp. 349 (W.D.Va.1996); Davis, 904 F.Supp. 554; The FDPA’s appellate review provisions do not violate the Equal Protection Clause. Cooper, 91 F.Supp.2d at 99; Cuff, 38 F.Supp.2d at 285-86; Frank, 8 F.Supp.2d at 270-73; McVeigh, 944 F.Supp. at 1484-85; Nguyen, 928 F.Supp. at 1548; Davis, 904 F.Supp. at 562-63. Defendant’s contentions raised in sections III.E & F of his motion have been previously addressed by this Court in its September 18, 2002, Memorandum Opinion, United States v. Regan, 221 F.Supp.2d 672 (E.D.Va.2002). The FDPA does not violate the Eighth Amendment prohibition of cruel of unusual punishment. Gregg v. Georgia, 428 U.S. 153, 168-87, 183, 177-78, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that the death penalty is not per se cruel and unusual punishment); See McCleskey, 481 U.S. at 300-03, 107 S.Ct. 1756; United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998) aff'd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Llera Plaza, 179 F.Supp.2d at 464. B. The Statutory Aggravating Factors of “Grave Risk to National Security” and “Grave Risk of Death” Are Not Overbroad or Vague Defendant’s motion to dismiss the indictment under grounds that the Govern ment’s asserted statutory and non-statutory aggravating factors are overbroad or vague is denied. A statutory aggravating factor may not be overbroad, and it may not be vague. Tuilaepa v. California, 512 U.S. 967, 972-73, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). The only constitutional function of an aggravating factor is to “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The sentencing authority’s discretion must be suitably directed and limited to each aggravating factor that is utilized by the scheme. In defining each aggravating factor, the death penalty statute must provide the sentencing authority with “ ‘clear and objective standards’ that provide ‘specific and detailed guidance’ ” to the sentencing authority in the exercise of its discretion. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct." }, { "docid": "9888320", "title": "", "text": "96 S.Ct. 2909. By freeing both prosecution and defense from the restraints of evidentiary rules at the sentencing phase, the FDPA allows for the individualized sentencing the Constitution requires. At the same time, it should also be noted that those evidentiary restrictions that are imposed by the FDPA are adequate to ensure the reliability of sentencing decisions. As discussed above, information that may be presented at the sentencing phase is subject to important constraints: the defendant presents information relevant to mitigating factors; the government presents information relevant to those aggravating factors — statutory and non-statutory — enumerated in its § 3593(a) notice; and both sides are limited by the trial judge’s authority to exclude information “if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” § 3593(c). The last of these three constraints is particularly noteworthy in that it is more stringent than the analogous provision in the Federal Rules of Evidence — Rule 403. Rule 403 only authorizes the trial judge to exclude evidence if its probative value is “substantially” outweighed by its potential prejudicial impact. Fed. R. Ev. 403. In sum, the evidentiary standards for sentencing hearings under the FDPA are constitutionally permissible and adequate to ensure a reliable and individualized sentencing decision. See United States v. Allen, 247 F.3d 741, 759-760 (8th Cir.2001); United States v. Minerd, 176 F.Supp.2d. 424, -, 2001 WL 1463518, *7 (W.D.Pa.2001); United States v. Cooper, 91 F.Supp.2d. 90, 97-98 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d., 253 268-270 (S.D.N.Y.1998); Nguyen, 928 F.Supp. at 1546-47. IV. “The FDPA unconstitutionally authorizes the government to allege non-statutory aggravating factors.” The defendants challenge the constitutionality of the catch-all sentence which concludes § 3592(c), which reads: “The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists.” The catch-all sentence authorizes the government to present information to the sentencer of non-statutory aggravating factors — i.e., aggravating factors that are not listed in subsections (1)-(16) of § 3592(c). The defendants’ argument consists of five different" }, { "docid": "21740108", "title": "", "text": "offense the defendant knowingly created a grave risk of substantial danger to the national security,” and (2) that “[i]n the commission of the offense the defendant knowingly created a grave risk of death to another person.” 18 U.S.C. § 3592(b)(2)-(3). In light of the Supreme Court’s decision in Ring, — U.S. -, 122 S.Ct. 2428, 153 L.Ed.2d 556, the Government filed another superseding indictment on July 24, 2002, re-alleging Counts One through Four and including the two statutory factors set forth in the death penalty notice. Defendant filed several motions seeking to strike the death penalty provisions of the superseding indictment and attacking the constitutionality of the FDPA on its face and as applied. This order discusses the facial and as-applied challenges to the statute raised in the motion captioned “Omnibus Motions Concerning the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 et seq. and the Government’s Notice of Intent to Seek a Sentence of Death.” II. DISCUSSION A. The Federal Death Penalty Act is Constitutional Defendant’s motion to dismiss the indictment because the Federal Death Penalty Act is unconstitutional is denied. The FDPA scheme is comprehensible and allows the jury to make a reasoned and informed choice between death and a life sentence. United States v. Llera Plaza, 179 F.Supp.2d 444, 449-50 (E.D.Pa.2001). See also Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (noting that the “crucial assumption underlying the system of trial by jury is that juries will follow the instructions given them by the trial judge”) (quoting Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979)); United States v. Kee, 2000 WL 863119 (S.D.N.Y.2000); United States v. Frank, 8 F.Supp.2d 253 (S.D.N.Y.1998). The studies cited by Defendant “do not establish that the concepts of aggravating and mitigating factors as used in the FDPA bear such a degree of intrinsic ‘incomprehensibility’ as to render them incapable of clarification through adequate jury instructions.” Llera Plaza, 179 F.Supp.2d at 450 n. 5 (analyzing the same studies cited by Defendant Regan); see also Kee, 2000 WL" }, { "docid": "14108681", "title": "", "text": "v. Davis, No. CR.A.01-282, 2003 WL 1837701, at *11 (E.D.La. April 9, 2003); Johnson, 239 F.Supp.2d at 944-46; Matthews, 246 F.Supp.2d at 141-46; United States v. Regan, 221 F.Supp.2d 672, 681-83 (E.D.Va.2002); United States v. Minerd, 176 F.Supp.2d 424, 435-36 (W.D.Pa.2001); United States v. Cooper, 91 F.Supp.2d 90, 98 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d 253, 267-71 (S.D.N.Y.1998); United States v. Nguyen, 928 F.Supp. 1525, 1546-47 (D.Kan.1996); United States v. McVeigh, 944 F.Supp. 1478, 1487 (D.Colo.1996). CONCLUSION For the foregoing reasons, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion. In particular, to avoid further piecemeal litigation, we instruct the district court to collectively dispose of all of the defendant’s remaining pre-trial challenges. . In fact, Judge Winter is of the view that, even in the absence of the express language of the FDPA, the FRE would be inapplicable to a capital penalty phase under Fed.R.Evid. 1101(d)(3), which states that the FRE are inapplicable to all sentencing proceedings, and 18 U.S.C. § 3661, which provides, \"No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” The other panel members express no view on this point. . Title 18 U.S.C. § 3731 provides: In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.... The provisions of this section shall be liberally construed to effectuate its purposes. : Rule 1101 of the Federal Rules of Evidence is entitled \"Applicability of Rules.” Subsection (d) of the rule provides, in relevant part, Rules inapplicable. The rules (other than with respect to privileges) do not" }, { "docid": "14108680", "title": "", "text": "2003) (holding that the FDPA “expressly supplants only the rules of evidence, not constitutional standards .... [The trial court] retains the authority under the statute to impose upon the parties any standards of admissibility or fairness dictated by the Fifth and Sixth Amendments”) (emphasis in original). In the instant case, then, if the district court were to conclude that admission of statements by Fell’s deceased co-defendant would unfairly prejudice Fell, it would be obligated by the FDPA Standard to exclude them. We, of course, take no position on the question. In short, as the Fifth Circuit observed in Jones, the FDPA Standard “does not impair the reliability or relevance of information at capital sentencing hearings.” 132 F.3d at 242. Rather, it “helps to accomplish the individualized sentencing required by the constitution.” Id. Accordingly, we agree with the numerous courts that have held that the FDPA Standard set forth in § 3593(c) meets constitutional requirements. See, e.g., id. at 241; United States v. Haynes, 269 F.Supp.2d 970, 983-87 (W.D.Tenn.2003); Battle, 264 F.Supp.2d at 1105-07; United States v. Davis, No. CR.A.01-282, 2003 WL 1837701, at *11 (E.D.La. April 9, 2003); Johnson, 239 F.Supp.2d at 944-46; Matthews, 246 F.Supp.2d at 141-46; United States v. Regan, 221 F.Supp.2d 672, 681-83 (E.D.Va.2002); United States v. Minerd, 176 F.Supp.2d 424, 435-36 (W.D.Pa.2001); United States v. Cooper, 91 F.Supp.2d 90, 98 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d 253, 267-71 (S.D.N.Y.1998); United States v. Nguyen, 928 F.Supp. 1525, 1546-47 (D.Kan.1996); United States v. McVeigh, 944 F.Supp. 1478, 1487 (D.Colo.1996). CONCLUSION For the foregoing reasons, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion. In particular, to avoid further piecemeal litigation, we instruct the district court to collectively dispose of all of the defendant’s remaining pre-trial challenges. . In fact, Judge Winter is of the view that, even in the absence of the express language of the FDPA, the FRE would be inapplicable to a capital penalty phase under Fed.R.Evid. 1101(d)(3), which states that the FRE are inapplicable to all sentencing proceedings, and 18 U.S.C. § 3661, which provides, \"No" }, { "docid": "5267452", "title": "", "text": "those alleged crimes under the Federal Sentencing Guidelines. Finally, Le’s argument that non-statutory aggravating factors must be alleged in the indictment has already been rejected by the Fourth Circuit in Higgs. There, the Fourth Circuit held that the Indictment Clause does not require that nonstatutory aggravating factors be included in the indictment because “the finding of a nonstatutory aggravating factor alone will not support imposition of the death penalty. Rather, the purpose of nonstatutory aggravators is to aid the fact-finder in selecting the appropriate sen tence from the available options, ie., death or life imprisonment.” Higgs, 353 F.3d at 298. Therefore, “[bjecause nonstatutory aggravating factors do not increase the available punishment to which a defendant might be subjected, they are not required to be alleged in the indictment.” Id. at 299. IY. Accordingly, for all the reasons stated herein, Le’s Motion to Strike Aggravating Factors Alleged in Government’s Notice of Intent to Seek the Death Penalty and his Motion to Dismiss or, in the Alternative, to Strike Aggravating Factors Alleged in, Government’s Amended Notice of Intent to Seek the Death Penalty must be denied. An appropriate order will issue. . 18 U.S.C. § 3591 et seq. . See also United States v. Cuong Gia Le, Criminal Action No. 1:03cr48 (E.D.Va. July 20, 2004) (Order denying government's motion for reconsideration). . See also United States v. Johnson, 239 F.Supp.2d 924, 946 (N.D.Iowa 2003) (holding that the FDPA \"expressly supplants only the rules of evidence, not constitutional standards .... [The trial court] retains the authority under the statute to impose upon the parties any standards of admissibility or fairness dictated by the Fifth and Sixth Amendments”) (emphasis in original). . See, e.g., Fell, 360 F.3d at 146; Jones, 132 F.3d at 241; United States v. Haynes, 269 F.Supp.2d 970, 983-87 (W.D.Tenn.2003); Battle, 264 F.Supp.2d at 1105-07; United States v. Davis, 2003 WL 1837701, at *11 (E.D.La. Apr.9, 2003); Johnson, 239 F.Supp.2d at 944-46; Matthews, 246 F.Supp.2d at 141-46; United States v. Regan, 221 F.Supp.2d 672, 681-83 (E.D.Va.2002); United States v. Minerd, 176 F.Supp.2d 424, 435-36 (W.D.Pa.2001); United States v. Cooper, 91 F.Supp.2d" }, { "docid": "14441253", "title": "", "text": "denied, 510 U.S. 1131, 114 S.Ct. 1103, 127 L.Ed.2d 415 (1994); United States v. Llera Plaza, 179 F.Supp.2d 444, 452-53 (E.D.Pa.2001). Therefore, for the reasons outlined above, Defendants Taylor and Thomas’s challenge to the FDPA on the grounds of a “relaxed” evidentiary standard must be rejected. However, out of an abundance of caution, this Court will apply the Federal Rules of Evidence if this case proceeds to the sentencing phase of the trial. 2. Non-statutory Aggravating Factors need not be included in the Indictment In their second challenge to the FDPA, Defendants Thomas and Taylor argue that the FDPA is unconstitutional because it fails to require the inclusion of non-statutory aggravating factors in the indictment. Specifically, Thomas and Taylor contend that the non-statutory aggravating factors operate as the functional equivalent of an element of the offense and therefore they should be presented to the grand jury and included in the indictment. The Defendants argue that the FDPA runs counter to Ring and Apprendi, since it does not treat the non-statutory aggravating factors as the functional equivalents to an element of the offense and therefore it is unconstitutional. In Response, the Government rejects Defendants’ position and states that Defendants’ argument rests on two false presumptions — (1) that Ring and Apprendi require that all non-statutory factors be submitted to the grand jury and (2) therefore, the FDPA is unconstitutional because it does not require this procedure. The Government submits that neither Ring nor Apprendi require the non-statutory aggravating factors be included in the indictment and that the omission of such a requisite do not render the FDPA unconstitutional. The Court agrees. Defendants Taylor and Thomas’ argument erroneously assumes that non-statutory aggravating factors serve the same function as statutory aggravating factors. However, “statutory aggravating factors narrow the class of defendants eligible for the death penalty, whereas non-statutory aggravating factors serve the separate ‘individualizing’ function that ensure that the ‘jury [has] before it all possible relevant information about the individual defendant whose fate it must determine.’ ” United States v. Johnson, No. 96-CR 379, 1997 WL 534163, at *6 (N.D.Ill. Aug.20, 1997)(quoting United" }, { "docid": "9888321", "title": "", "text": "if its probative value is “substantially” outweighed by its potential prejudicial impact. Fed. R. Ev. 403. In sum, the evidentiary standards for sentencing hearings under the FDPA are constitutionally permissible and adequate to ensure a reliable and individualized sentencing decision. See United States v. Allen, 247 F.3d 741, 759-760 (8th Cir.2001); United States v. Minerd, 176 F.Supp.2d. 424, -, 2001 WL 1463518, *7 (W.D.Pa.2001); United States v. Cooper, 91 F.Supp.2d. 90, 97-98 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d., 253 268-270 (S.D.N.Y.1998); Nguyen, 928 F.Supp. at 1546-47. IV. “The FDPA unconstitutionally authorizes the government to allege non-statutory aggravating factors.” The defendants challenge the constitutionality of the catch-all sentence which concludes § 3592(c), which reads: “The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists.” The catch-all sentence authorizes the government to present information to the sentencer of non-statutory aggravating factors — i.e., aggravating factors that are not listed in subsections (1)-(16) of § 3592(c). The defendants’ argument consists of five different points. A. “Non-statutory aggravating factors do not constitutionally limit and guide discretion of jury, thus permitting wholly arbitrary and capricious death sentences in violation of the Eighth and Fourteenth Amendments.” The premise of this argument — the Eighth Amendment requirement that the sentencer’s discretion in meting out the death penalty be narrowed such that its decision is neither arbitrary nor capricious — is well accepted. See discussion supra. However, this argument shares the weakness noted with respect to the defendants’ argument regarding the lack of evidentiary standards under the FDPA: because of the need for individualized information in capital sentencing decisions, the Supreme Court has expressly permitted the use of non-statutory aggravating factors. In Stephens, the Court observed: “[Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death." }, { "docid": "21740111", "title": "", "text": "juror confusion may be relied on by district court judges was overruled by the Seventh Circuit. See Free v. Peters, 12 F.3d 700, 705 (7th Cir.1993). Defendant’s argument that allowing the Government to “play with prose” in defining non-statutory aggravating factors violates the Eighth Amendment has been previously rejected. See United States v. Nguyen, 928 F.Supp. 1525, 1538 (D.Kan.1996). Defendant lacks standing at this time to challenge the appellate review provisions of the FDPA. Llera Plaza, 179 F.Supp.2d at 461. Furthermore, the FDPA provides meaningful and constitutionally sufficient appellate review. United States v. Cooper, 91 F.Supp.2d 90, 99 (D.D.C.2000); United States v. Cuff, 38 F.Supp.2d 282, 285-86 (S.D.N.Y.1999); Frank, 8 F.Supp.2d at 270-73; United States v. McVeigh, 944 F.Supp. 1478, 1484-85 (D.Colo.1996); Nguyen, 928 F.Supp. at 1548; United States v. Davis, 904 F.Supp. 554, 562-63 (E.D.La.1995). The FDPA adequately narrows the class of defendants eligible for the death penalty. United States v. Webster, 162 F.3d 308, (5th Cir.1998); United States v. Flores, 63 F.3d 1342 (5th Cir.1995); Llera Plaza, 179 F.Supp.2d at 451; United States v. Minerd, 176 F.Supp.2d 424 (W.D.Pa.2001); Cooper, 91 F.Supp.2d 90; United States v. DesAnges, 921 F.Supp. 349 (W.D.Va.1996); Davis, 904 F.Supp. 554; The FDPA’s appellate review provisions do not violate the Equal Protection Clause. Cooper, 91 F.Supp.2d at 99; Cuff, 38 F.Supp.2d at 285-86; Frank, 8 F.Supp.2d at 270-73; McVeigh, 944 F.Supp. at 1484-85; Nguyen, 928 F.Supp. at 1548; Davis, 904 F.Supp. at 562-63. Defendant’s contentions raised in sections III.E & F of his motion have been previously addressed by this Court in its September 18, 2002, Memorandum Opinion, United States v. Regan, 221 F.Supp.2d 672 (E.D.Va.2002). The FDPA does not violate the Eighth Amendment prohibition of cruel of unusual punishment. Gregg v. Georgia, 428 U.S. 153, 168-87, 183, 177-78, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that the death penalty is not per se cruel and unusual punishment); See McCleskey, 481 U.S. at 300-03, 107 S.Ct. 1756; United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998) aff'd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Llera Plaza, 179 F.Supp.2d at" } ]

[ { "docid": "7086696", "title": "", "text": "(3) whether it was possible the declarant was relying on faulty recollection; and (4) whether the circumstances suggest the de-clarant misrepresented the defendant’s involvement in the crime. Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970); Paris, 812 F.2d at 477. Moreover, the court need not independently inquire into the reliability of these statements. Bourjaily, 107 S.Ct. at 2783. Robinson’s statement that Crespo and others used the apartment as a “safe-house” to conduct cocaine transactions meets all four requirements. It was an assertion of past fact, he had personal knowledge of the manner in which the premises were used because he rented the apartment, and the statement was not dependent upon Robinson’s recollection. Coulson’s observation of Crespo’s involvement in the negotiations concerning the narcotics transaction demonstrated the trustworthiness of the statement. B. Admissibility of Non-Narcotics Evidence Seized at the Dominguez-Peraza House Crespo contends that evidence seized from Dominguez-Peraza’s house was erroneously admitted against him because (1) its probative value did not outweigh its prejudicial effect under Fed.R.Evid. 403 and (2) the government failed to produce any evidence linking him to the evidence found in Dominguez-Peraza’s home. We review a trial judge’s decision regarding the admission or exclusion of evidence under Rule 403 for abuse of discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir.1983). We find the evidence seized in the house and the Mercedes-Benz properly admitted. Because Crespo was indicted for conspiracy to possess and distribute narcotics, the firearms can be relevant to show his involvement in the narcotics trade. See United States v. Martin, 599 F.2d 880, 889 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979) (evidence of guns seized from defendant's residence relevant to show defendant’s involvement in narcotics trade). The other evidence including $6,000 in cash, a mobile phone, paging equipment, and evidence of Dominguez-Peraza’s cash purchases of vehicles and weapons is probative of an overall narcotics trafficking conspiracy. See United States v. Uriarte, 575 F.2d 215, 218 (9th Cir.), cert. denied, 439 U.S. 963, 99 S.Ct. 449, 58 L.Ed.2d 421 (1978)," } ]

[ { "docid": "23150568", "title": "", "text": "for a proper probative purpose. We hold that the trial court did not abuse its discretion in permitting the introduction of the photographs of various weapons in evidence at trial. Several courts have held that firearms are generally admissible in a drug conspiracy trial because they are “tools of the trade” for those engaged in illegal drug activity. See, e.g., United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir.1987); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Martinez, 808 F.2d 1050 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987); United States v. Rodriguez, 765 F.2d 1546 (11th Cir.1985). Without accepting this broad proposition as a substitute for a more detailed case-by-case analysis under Federal Rules of Evidence 401 and 403, we are persuaded that there was sufficient independent evidence to tie the weapons found at the Sullivan and Fisher residences to the crimes charged so that their admission in evidence was not error. Furthermore, although the large number of weapons involved here ereates some risk of undue prejudice, we are persuaded that any undue prejudice was outweighed by the probative value of the evidence. Before the weapons were admitted, several witnesses testified that the defendants routinely carried firearms, both for legal and illegal purposes. Moreover, the defendants testified that it was their general practice to possess and carry firearms for recreational purposes and that most of the persons in the community possessed guns. E.g., XIV R. at 1332, 1338; XV R. at 1558. Finally, the government did not attempt to parade the weapons before the jury; instead, it relied on photographs of the weapons found at the Sullivan and Fisher residences. This use of the evidence was proper. In sum, we feel there was ample evidence in this case from which a jury could infer that the defendants’ access to firearms not only facilitated their drug manufacturing efforts, but also provided the type of protection the defendants believed they needed for their operation. Admission" }, { "docid": "1377754", "title": "", "text": "to the district court’s judgment. United States v. Foley, 871 F.2d 235, 238 (1st Cir.1989); United States v. Pelletier, 845 F.2d 1126, 1130 (1st Cir.1988). We will reverse a district court’s decision regarding the comparative probative value and prejudicial effect of evidence only in “exceptional circumstances.” United States v. Griffin, 818 F.2d 97, 101 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). We find no such circumstances here. The white-handle .22 caliber pistol seized at the Nelson Street residence was highly probative of the firearms offense because it was the gun that Green usually carried while selling cocaine, as observed by Beech. The other firearms were relevant to corroborate Beech’s testimony and to establish that Green and his codefend-ants conspired to distribute cocaine at the three Boston residences. This circuit and others have recognized that in drug trafficking firearms have become “tools of the trade” and thus are probative of the existence of a drug conspiracy. See United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Montes-Cardenas, 746 F.2d 771, 777 (11th Cir.1984); United States v. Perez, 648 F.2d 219, 224 (5th Cir. Unit B 1981), cert. denied, 454 U.S. 1055, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981). We also note that the district judge maintained strict control over the presentation of the firearms evidence to ensure that unfair prejudice did not result. We find no abuse of discretion in the district court’s admission of this evidence. Likewise, the district court’s admission of the other items of real evidence, including telephone billing records, a video tape, and a photograph, did not unfairly prejudice the defendant. Each of the items was relevant and served to corroborate Beech’s testimony and to link the conspirators to their weapons and to each other. Green next argues that the district court abused its discretion in admitting into evidence statements made by Green’s co-conspirator, Homer, to Beech just before Homer shot Beech. Beech testified that, before shooting him, Homer accused Beech of being an" }, { "docid": "309871", "title": "", "text": "place. Because we conclude below that the factfinder could properly consider the Chase Street evidence, we find no foundation for Martinez’ assertion that he was prejudiced by having to rebut it. . See also United States v. Newton, 891 F.2d 944, 948-49 (1st Cir.1989) (large-scale cash purchases); United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.) (firearm and weighing scales), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987) (firearm), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Dempewolf, 817 F.2d 1318, 1322 (8th Cir.) ($720 in cash), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); Adams, 759 F.2d at 1109 (firearm); United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.) ($967,450 in cash), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). . In upholding the admission of evidence of the possession or expenditure of large sums of cash, some courts have characterized drug distribution offenses as crimes where “pecuniary gain is the usual motive for or natural result of\" their perpetration. United States v. Chagra, 669 F.2d 241, 256 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982); see United States v. Wood, 834 F.2d 1382, 1386 (8th Cir.1987). Cf. United States v. Jackskion, 102 F.2d 683, 684 (2d Cir.) (a bootlegging case), cert. denied, 307 U.S. 635, 59 S.Ct. 1032, 83 L.Ed. 1517 (1939). As such, drug distribution offenses are akin to larceny and similar crimes, where it has been held that the sudden acquisition of money by an accused renders the view that the money was acquired dishonestly \"a natural and prominent hypothesis.” 1A J. Wigmore, Evidence § 154, at 1764 (1983); see Chagra, 669 F.2d at 256. Cf. Jackskion, 102 F.2d at 684. While we do not quarrel with this characterization of drug distribution offenses, our focus here is more precisely on the \"cash-and-carry” nature of the drug trade. United States v. McDonald, 933 F.2d at 1522 (10th Cir.1991). . We" }, { "docid": "23020925", "title": "", "text": "weapons to support the government’s theory of a drug conspiracy is generally not improper. See United States v. Martinez, 938 F.2d 1078, 1084 (10th Cir. 1991) (quoting 1 J. Weinstein & M. Berger, Weinstein’s Evidence, ¶ 401[05], at 401-33, for the comparative proposition that evidence that assists “ ‘the trier of fact in evaluating the validity of an evidential hypothesis may be admissible even though it may not directly relate to a consequential fact’ ”). In this context, both the cocaine and weapons were also relevant. Finally, the district court specifically found a proper inference arose between the weapons and their probable purpose to protect the narcotics. Evidence of weapons or other paraphernalia used in distributing illicit drugs is relevant. See Sullivan, 919 F.2d at 1420 (citing 1 J. Weinstein & M. Berger, Weinstein’s Evidence, ¶ 401[10], at 401-70 & n. 14 (a collection of cases), and United States v. Romero, 692 F.2d 699, 705 (10th Cir.1982)). Prejudice Although the introduction of cocaine and a large number of weapons creates some risk of undue prejudice, we are convinced the probative value of the evidence here outweighed the risk of any undue prejudice. “Evidence is not unfairly prejudicial simply because it is damaging to an opponent’s case.” Martinez, 938 F.2d at 1082. Instead, “the evidence must have ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” Id. (quoting Fed.R.Evid. 403 advisory committee’s note). “[Balancing the probative value of evidence against its potential prejudicial effect” remains a matter of broad discretion with the district court, id., and we see no reason to disturb its ruling. Borrowing from this court’s prior use of a “ ‘mosaic’ analogue” regarding evidence, “ ‘all the evidence was mosaic, each making its contribution, and all building up to a compelling whole that ... the jury should actually view.’ ” Troutman, 814 F.2d at 1447 (quoting United States v. Masiello, 235 F.2d 279, 283 (2d Cir.), cert. denied, 352 U.S. 882, 77 S.Ct. 100, 1 L.Ed.2d 79 (1956)). The jury weighed Mr. Mendoza’s claims of indifference and that the" }, { "docid": "3553011", "title": "", "text": "F.2d 201 (7th Cir.1989) (collecting cases). Although we are not in a position to decide whether the items found in Field’s cell would constitute “tools of the trade” in every money order alteration case, we think that, especially given testimony by inmates as to Field’s methodology, this evidence was relevant here. United States v. Miroff, 606 F.2d 777, 781 (7th Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1315, 63 L.Ed.2d 761 (1980) (although declining to adopt a “tools of the trade” rationale with respect to introduction of weapons in a trial for conspiracy to transport stolen property, the court of appeals nonetheless found that this evidence was relevant in that case). Field also was not unduly prejudiced by the admission of this evidence. Whether the probative value of evidence is outweighed by the prejudice thereof is a matter left to the sound discretion of the trial court, United States v. Byrd, 771 F.2d 215, 220 (7th Cir.1985), and we will not reverse the court’s determination absent a showing of abuse of that discretion. Alvarez, 860 F.2d at 830. The defendant has not made such a showing here. Moreover, any prejudicial effect created by the introduction of such evidence is limited by the district court’s instruction to the jury that the items found in Field's cell only could be considered by the jury on the question of his capacity to commit the offenses charged. United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988) (holding that limiting instruction in “tools of the trade” case properly protected the defendants from undue prejudice). The fact that Field’s cell was searched seven and one-half months after he was indicted, during a time when other inmates might have had access to the cell, moreover, does not mean that the items .found in Field’s cell were improperly admitted. A district court’s decision to admit or exclude evidence on remoteness grounds only will be reversed for an abuse of discretion. Cf. United States v. Amaro, 816 F.2d 284, 287 (7th Cir.), cert. denied, 481" }, { "docid": "22841712", "title": "", "text": "court sustained the objection. When the defense “opened the door” by cross-examining Danny Gonzalez about the firearms, however, the government re-offered the photograph which was received over defense’s objection. Cf. United States v. Lester, 749 F.2d 1288 (9th Cir.1984) (admitting testimony as to defendant’s possession of weapons in obstruction of justice case which was not predicated on violence was not so prejudicial as to be an abuse of discretion in light of fact that government referred to possession of weapons only after defense had brought up various shootings in cross-examining government witnesses). It is uniformly recognized that weapons are often as much “tools of the trade” as the most commonly recognized narcotics paraphernalia. United States v. Adams, 759 F.2d 1099, 1108 (3rd Cir.), cert. denied, 474 U.S. 906, 106 S.Ct. 275, 88 L.Ed.2d 236 (1985). Accord United States v. Sarda-Villa, 760 F.2d 1232, 1234 n. 1 (11th Cir.1985). Since weapons can be viewed as tools of illegal narcotics trafficking, the testimony of Terzado’s former associates as to his possession of various weapons is probative evidence of appellant’s involvement in a cocaine conspiracy. More specifically, the testimony had at least circumstantial relevance to Terzado’s knowledge and intent to participate in the conspiracy, and to the type of protection appellant believed necessary to protect its operation. See, e.g., United States v. Rodriguez, 765 F.2d 1546 (11th Cir.1985) (admitting into evidence firearms even without a showing of a direct connection to the charges, since such weapons are many times “tools of the trade” for drug dealers, and since the evidence thus had circumstantial relevance to defendant's intent on drug conspiracy count); see also United States v. Martinez, 808 F.2d 1050 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987) (handgun properly admitted in prosecution for drug conspiracy since weapon was tool of trade of those engaged in illegal drug activity and was highly probative in proving criminal intent, and inference of illegal enterprise arising from its presence supported conspiracy theory). We find that the probative value of the testimony outweighed any likely prejudicial impact. Thus, the district court’s" }, { "docid": "23150567", "title": "", "text": "the crimes charged under a “tools of the trade” theory, and that any error as to the admissibility of the firearms was harmless since there was other substantial and direct evidence to support the defendants’ convictions. As a general rule, evidence that the defendants possessed weapons or other paraphernalia that may have been used in committing the crimes for which they are charged is relevant. See 1 J. Weinstein & M. Berger, Weinstein’s Evidence 11401[10], at 401-70 & n. 14 (a collection of cases). In United States v. Romero, 692 F.2d 699 (10th Cir.1982), we upheld the admission of two revolvers seized from a van in which the defendants were transporting marijuana because “[t]he firearms may have been part of the circumstantial evidence of an intent to distribute the marijuana.” 692 F.2d at 705. Although the instant case is not on all fours with Romero, that court’s reasoning is applicable here. In this prosecution for conspiracy to manufacture amphetamine, and attempted manufacture of amphetamine, the firearms seized from the Sullivan and Fisher homes were introduced for a proper probative purpose. We hold that the trial court did not abuse its discretion in permitting the introduction of the photographs of various weapons in evidence at trial. Several courts have held that firearms are generally admissible in a drug conspiracy trial because they are “tools of the trade” for those engaged in illegal drug activity. See, e.g., United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir.1987); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Martinez, 808 F.2d 1050 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987); United States v. Rodriguez, 765 F.2d 1546 (11th Cir.1985). Without accepting this broad proposition as a substitute for a more detailed case-by-case analysis under Federal Rules of Evidence 401 and 403, we are persuaded that there was sufficient independent evidence to tie the weapons found at the Sullivan and Fisher residences to the crimes charged so that their admission in" }, { "docid": "7982248", "title": "", "text": "present, unless it is clearly improbable that the weapon was connected with the offense.” (Application Note 3 to U.S.S.G. § 2D1.1(b)(1)). Possession of the weapons by Morgan is not required. The weapons were present at 1717 Grove Street and the,jury found beyond a reasonable doubt that Morgan possessed with the intent to distribute approximately 183 grams of crack cocaine and possessed with the intent to manufacture crack cocaine approximately- 225 grams of cocaine hydrochloride. Morgan’s relevant conduct includes the conduct of the Nelson brothers taken in furtherance of their jointly-undertaken criminal activity,. and it was reasonably foreseeable to Morgan that there would be firearms located at 1717 Grove Street because it was a place of. manufacturing, storing and distributing crack Cocaine. The weapons were present, Morgan and the Nelsons were acting in a “jointly-undertaken criminal activity,” the weapons were connected with the offenses charged in Counts 1 and 2, and it was reasonably foreseeable to Morgan that his code-fendants would be in possession of a firearm. These circumstances are sufficient to support the 2 level increase. See United States v. White, 875 F.2d 427, 433 (4th Cir.1989). The facts in White were less aggravated than those now before the court. Jackson was a codefendant and coappellant with White and we found: The facts surrounding the apprehension of Defendants are important. Jackson arrived at the train station after midnight, exited the train, greeted White and rode away with him. The pistol under the driver’s seat was readily accessible to both. And, as Jackson conceded, he knew White personally and had been involved in at least one previous similar transaction with him. Finally, it is not unreasonable to recognize that weapons have become “tools of the trade” in illegal narcotics operations. United States v. Hinds, 856 F.2d 438, 443 (1st Cir.1988) (quoting United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988). Therefore, although Jackson’s guilty plea was based on an aiding and abetting charge and not on a conspiracy charge, the district court did not err in considering the" }, { "docid": "1377753", "title": "", "text": "residence the police seized and the government later introduced into evidence six firearms, ammunition, an address book, telephone billing records, cocaine, a photograph of one of Green’s co-conspirators holding a gun, and a video tape that the conspirators had filmed at 37 Westmore Road that showed several of them, including Green, handling firearms, money, and cocaine. The items introduced by the government that had been seized from the Fuller Street residence included two firearms, ammunition, a scale, and cocaine residue. II. We first address Green’s claim that the district court’s admission of the eight guns and other items unfairly prejudiced him. Federal Rule of Evidence 403 provides that “[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.” Fed.R.Evid. 403. We review a district court’s decision regarding Rule 403 pursuant to the abuse of discretion standard and are obligated to give great deference to the district court’s judgment. United States v. Foley, 871 F.2d 235, 238 (1st Cir.1989); United States v. Pelletier, 845 F.2d 1126, 1130 (1st Cir.1988). We will reverse a district court’s decision regarding the comparative probative value and prejudicial effect of evidence only in “exceptional circumstances.” United States v. Griffin, 818 F.2d 97, 101 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). We find no such circumstances here. The white-handle .22 caliber pistol seized at the Nelson Street residence was highly probative of the firearms offense because it was the gun that Green usually carried while selling cocaine, as observed by Beech. The other firearms were relevant to corroborate Beech’s testimony and to establish that Green and his codefend-ants conspired to distribute cocaine at the three Boston residences. This circuit and others have recognized that in drug trafficking firearms have become “tools of the trade” and thus are probative of the existence of a drug conspiracy. See United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied," }, { "docid": "309857", "title": "", "text": "means for the distribution of illegal drugs. See, e.g., United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976). Accordingly, they have been held to be probative of an accused’s participation in the drug distribution business and, more specifically, his or her participation in the charged distribution offenses. See United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); 1 C. Torcia, Wharton’s Criminal Evidence § 96, at 351-52 (14th ed. 1985) (noting that an accused’s possession of a weapon or implement “suitable to the commission of the crime charged ... is always a proper ingredient of the case for the prosecution”). It is basically immaterial to the admissibility inquiry in cases like these whether the accused has been charged with an offense directly related to his or her possession of a “tool of the trade.” See United States v. Ariza-Ibarra, 605 F.2d 1216, 1224-25 (1st Cir.1979). In particular, in admitting firearms and large amounts of cash, courts have recognized the high level of violence that is not uncommonly associated with the drug distribution business and the prevalence in this business of large-scale cash transactions. See United States v. Wood, 834 F.2d 1382, 1386 (8th Cir.1987); United States v. Marino, 658 F.2d 1120, 1123 (6th Cir.1981). We are persuaded by the rationale of these cases. Indeed, we have recently de scribed such items in similar terms. See United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir.1991) (noting that a loaded pistol, a single-edge razor blade, and a pager can “best be described as a drug dealer's tools of trade,” and calling the drug trade “a cash-and-carry business”). Moreover, the view of this case is consistent with our decision in Fitzgerald, supra. There, we noted that weighing scales and a large quantity of narcotics, which were seized following the arrest of defendant, supported the" }, { "docid": "309856", "title": "", "text": "government presented no witness who observed him exiting the home with two kilograms of cocaine, despite the fact that an officer had him under surveillance. We find no abuse of discretion. In other circuits, courts have often held in the context of drug distribution offenses that items like those at issue here — firearms, large sums of cash, weighing scales, and uncharged quantities of illegal drugs — are sufficiently probative to warrant admission under Fed.R.Evid. 403. See, e.g., United States v. Nixon, 918 F.2d 895, 904 (11th Cir.1990) (firearms); United States v. Bernal, 719 F.2d 1475, 1477-78 (9th Cir.1983) (weighing scales and $8,600 in cash); United States v. Miroyan, 577 F.2d 489, 494-95 (9th Cir.) (firearm and small quantity of marijuana), cert. denied, 439 U.S. 896, 99 S.Ct. 258, 58 L.Ed.2d 243 (1978). But cf. United States v. Chen, 629 F.Supp. 263, 272 (S.D.N.Y.1986) (noting that defendant’s possession of firearms was “at best marginally probative of his ability to engage in narcotics trafficking”). Such items have generally been viewed as “tools of the trade”—that is, means for the distribution of illegal drugs. See, e.g., United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976). Accordingly, they have been held to be probative of an accused’s participation in the drug distribution business and, more specifically, his or her participation in the charged distribution offenses. See United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); 1 C. Torcia, Wharton’s Criminal Evidence § 96, at 351-52 (14th ed. 1985) (noting that an accused’s possession of a weapon or implement “suitable to the commission of the crime charged ... is always a proper ingredient of the case for the prosecution”). It is basically immaterial to the admissibility inquiry in cases like these whether the accused has been charged with an offense directly related to his or her" }, { "docid": "309870", "title": "", "text": "an unsuccessful attempt to discover the whereabouts of the irons (the exact nature of which he was uncertain), and then left. He later reunited with Romero, who departed in his car alone. At that point, to get home, Martinez said he accepted a ride with a person driving a black Mustang. Soon thereafter, he was arrested. See V R. 405-13. . Martinez further contends that he was prejudiced by the admission of the Chase Street evidence because he was compelled to put on an expert witness in rebuttal to refute misguided inferences of guilt flowing from his presence at the Chase Street home. The expert’s testimony was intended to demonstrate that it was unlikely that Martinez could have exited the Chase Street home with the cocaine, undetected by the Agent on surveillance. V R. 378-79; Brief of Appellant at 9. According to Martinez, in part this rebuttal testimony had the negative effect of highlighting the Chase Street evidence, which, due to its limited probative value, should not have been before the factfinder in the first place. Because we conclude below that the factfinder could properly consider the Chase Street evidence, we find no foundation for Martinez’ assertion that he was prejudiced by having to rebut it. . See also United States v. Newton, 891 F.2d 944, 948-49 (1st Cir.1989) (large-scale cash purchases); United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.) (firearm and weighing scales), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988); United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987) (firearm), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Dempewolf, 817 F.2d 1318, 1322 (8th Cir.) ($720 in cash), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); Adams, 759 F.2d at 1109 (firearm); United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.) ($967,450 in cash), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). . In upholding the admission of evidence of the possession or expenditure of large sums of cash, some courts have characterized drug distribution" }, { "docid": "22841713", "title": "", "text": "of appellant’s involvement in a cocaine conspiracy. More specifically, the testimony had at least circumstantial relevance to Terzado’s knowledge and intent to participate in the conspiracy, and to the type of protection appellant believed necessary to protect its operation. See, e.g., United States v. Rodriguez, 765 F.2d 1546 (11th Cir.1985) (admitting into evidence firearms even without a showing of a direct connection to the charges, since such weapons are many times “tools of the trade” for drug dealers, and since the evidence thus had circumstantial relevance to defendant's intent on drug conspiracy count); see also United States v. Martinez, 808 F.2d 1050 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987) (handgun properly admitted in prosecution for drug conspiracy since weapon was tool of trade of those engaged in illegal drug activity and was highly probative in proving criminal intent, and inference of illegal enterprise arising from its presence supported conspiracy theory). We find that the probative value of the testimony outweighed any likely prejudicial impact. Thus, the district court’s admission of the testimony concerning appellant’s possession of weapons was not plainly erroneous under Fed.R.Crim.P. 52(b) and the court’s refusal to exclude the photograph of the firearms was not an abuse of discretion. Appellant further alleges the prosecution prejudiced the jury by eliciting irrelevant comments from witnesses concerning his apparent wealth. Officer Martinez testified that, while interviewing Terzado about his involvement in the Nadal shooting, he observed appellant wearing a large gold bracelet on his left wrist, a lot of thick gold chains around his neck, and several rings on his fingers. Martinez also stated that Terzado claimed to be worth two or three million dollars. After Helen Villar testified as to Terzado's “Excaliber” automobile, the government introduced a photograph which showed appellant sitting in the luxury antique car. Although the presence of unexplained wealth can be relevant to drug cases, see, e.g., United States v. Dazzo, 672 F.2d 284, 289 (2nd Cir.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 77 (1982), the mere fact that a defendant wears gold jewelry, boasts" }, { "docid": "9876528", "title": "", "text": "prior to the commission of the crimes charged in the indictment, and he did so. Walters also had an opportunity to discredit the link between the gun in the photograph and the gun seized, but he chose not to. With these opportunities available, we cannot say that the district court abused its discretion in ruling that the photograph’s probative value was not substantially outweighed by the photograph’s prejudicial effect. Finally, the defendant, for the first time on appeal, claims that the photograph was not properly authenticated and therefore, inadmissible. Federal Rule of Evidence 103(a)(1) requires that objections at trial not only be made on time but that the grounds of the objection be specific. The reason for such a requirement is to alert the trial court and the other party to the grounds of the objection so that it may be addressed or cured. See Bryant v. Consolidated Rail Corp., 672 F.2d 217, 220 (1st Cir.1986). At trial the defendant failed to specify inadequate authentication as a ground for his objection. We, therefore, decline to consider this argument on appeal. II. We now turn to the other issues on appeal. Williams claims that the admission of the firearms was unfairly prejudicial. As already explained, a ruling denying an objection based on unfair prejudice is very difficult to overturn. Williams faces an additional hurdle in trying to have the guns excluded because the same weapons were admitted in the trial of co-conspirator Green and that admission was recently affirmed by us on appeal. As we said in Green, we have long recognized that in drug trafficking firearms have become “tools of the trade” and thus are probative of the existence of a drug conspiracy. See also, United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied [486 U.S. 1042], 108 S.Ct. 2033 [100 L.Ed.2d 618] (1988); United States v. Montes-Cardenas, 746 F.2d 771, 777 (11th Cir.1984); United States v. Perez, 648 F.2d 219, 224 (5th Cir. unit B), cert. denied, 454 U.S. 1055 [102 S.Ct. 602, 70 L.Ed.2d 592] (1981). Green, 887 F.2d at 27. One weapon was directly" }, { "docid": "7982249", "title": "", "text": "increase. See United States v. White, 875 F.2d 427, 433 (4th Cir.1989). The facts in White were less aggravated than those now before the court. Jackson was a codefendant and coappellant with White and we found: The facts surrounding the apprehension of Defendants are important. Jackson arrived at the train station after midnight, exited the train, greeted White and rode away with him. The pistol under the driver’s seat was readily accessible to both. And, as Jackson conceded, he knew White personally and had been involved in at least one previous similar transaction with him. Finally, it is not unreasonable to recognize that weapons have become “tools of the trade” in illegal narcotics operations. United States v. Hinds, 856 F.2d 438, 443 (1st Cir.1988) (quoting United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988). Therefore, although Jackson’s guilty plea was based on an aiding and abetting charge and not on a conspiracy charge, the district court did not err in considering the possession of the weapon for sentencing purposes. 875 F.2d at 433. In United States v. Brooks, 957 F.2d 1138 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 3051, 120 L.Ed,2d 917 (1992), we found no error in the enhancement of Brooks’ offense level based upon the possession of a firearm by a codefendant where the possession was in furtherance of the conspiracy and reasonably foreseeable to Brooks. Although Brooks involved a drug conspiracy, it is clear from Application Note to § lB1.3(a)(l) that it is not necessary that Morgan and the Nelsons be charged with conspiracy if the code-fendant’s conduct is “in furtherance of the execution of the jointly-undertaken criminal activity and was reasonably foreseeable by the defendant.” We find that the sentencing court’s decision to apply the enhancement under § 2Dl.l(b)(l) and its findings of fact is support thereof were not dearly erroneous, and they are supported by a preponderance of the evidence. (B) Appellant argues that the sentencing court’s consideration of evidence introduced in support of Count 3, on which he was" }, { "docid": "309859", "title": "", "text": "proposition that defendant was engaged in narcotics distribution, and specifically held that the admission of the seized narcotics was not improper under Rule 403. 719 F.2d at 1070-71. See also United States v. Mabry, 809 F.2d 671, 687 (10th Cir.) (finding no abuse of discretion under Fed.R.Evid. 404(b) in the admission of evidence of defendant’s purchase and possession of a large quantity of gold and silver), cert. denied, 484 U.S. 874, 108 S.Ct. 33, 98 L.Ed.2d 164 (1987). In challenging the admission of the sub-machine gun, Martinez relies on the Ninth Circuit’s decision in United States v. Green, 648 F.2d 587 (9th Cir.1981) (per curiam). We do not believe, however, that Green suggests a different result. There the court held that it was error under Rule 403 to admit evidence of defendant’s possession of firearms, noting that weapons are generally held to be inadmissible where they are unrelated to the charged offenses and the charged offenses are not dependent on their use or ownership. 648 F.2d at 594-95. However, the offenses in Green were a conspiracy to obstruct justice, to make false statements, and to violate the civil rights of United States citizens. Id. at 589. Here, on the contrary, the offenses at issue involve the distribution of illegal drugs. Violence is not an uncommon feature of the drug trade and weapons are often viewed as necessary tools to facilitate it. Indeed, in drug distribution cases, the Ninth Circuit has allowed the admission of evidence of firearms under Rule 403. See Savinovich, 845 F.2d at 837; Miroyan, 577 F.2d at 495. Here Martinez’ reliance on Green is misplaced. Furthermore, we find little substance in Martinez’ position that no connection was established between the Chase Street evidence and him. The government did not allege nor seek to prove that Martinez owned the Chase Street home or that he exercised dominion and control over all of its contents. Instead, in introducing the Chase Street items in evidence, the government sought to establish a key point in support of its evidentiary hypothesis that Martinez acquired the two kilograms of cocaine from the Chase" }, { "docid": "23133264", "title": "", "text": "evidence at drug trials. In United States v. Lippner, 676 F.2d 456 (11th Cir.1982), this court held that weapons found on a defendant’s person or property were admissible into evidence in a trial for a drug conspiracy. Id. at 463. The court reasoned that a gun and brass knuckles were “tools for the execution of the crime” of drug trafficking, and were probative of the defendant’s intent and his knowledge that he was engaged in an illicit transaction. Id. Similarly, in United States v. Perez, 648 F.2d 219 (5th Cir.), cert. denied, 454 U.S. 1055, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981), the court upheld the introduction into evidence of loaded guns discovered in a house into which the defendants were unloading marijuana at the time of their arrest. 648 F.2d at 224. The Perez court endorsed the following observation: Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment, and other narcotic equipment. 648 F.2d at 224 (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.1976). Several other courts also have recognized that weapons have become “tools of the trade” for those involved in the distribution or manufacture of illicit drugs, in holding that weapons were properly admitted into evidence at drug trials. See United States v. Romero, 692 F.2d 699, 705 (10th Cir.1982); United States v. Marino, 658 F.2d 1120, 1123 (6th Cir.1981); United States v. Picklesimer, 585 F.2d 1199, 1204 (3d Cir.1978); United States v. Pentado, 463 F.2d 355, 361 (5th Cir.1972), cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973); United States v. Cannon, 472 F.2d 144, 145 (9th Cir.1972); see also United States v. Arnott, 704 F.2d 322, 326 (6th Cir.1983) (weapons found in coconspirator’s home properly admitted into evidence at defendant’s drug trial when defendant had frequently visited coconspirator’s home in which drugs were stored). The same logic used to admit weapons into evidence at drug trials directs us to conclude that," }, { "docid": "23150566", "title": "", "text": "judges of the facts, the weight of the evidence, and credibility of the witnesses, and that they might consider the interest, if any, which a witness may have in the result of the trial, inter alia. Tr. at 2235. We have considered the defendants’ several related complaints concerning the instructions and believe they are without merit except, as noted, with respect to submitting an entrapment instruction. VI. Other Evidentiary Rulings A. Evidence of Multiple Firearms Defendants contend that the trial court erred when it admitted in evidence a .22 caliber rifle seized from a trailer approximately 100 yards from the lab site and photographs of approximately 20 weapons seized from the Sullivan and Fisher residences. They say the firearms were not relevant since there was no credible evidence linking the firearms to any of the crimes charged. Defendants also argue that to the extent the evidence was relevant, its probative value was substantially outweighed by the danger of unfair prejudice. The prosecution contends that the firearms, or photographs of them, were admissible as evidence of the crimes charged under a “tools of the trade” theory, and that any error as to the admissibility of the firearms was harmless since there was other substantial and direct evidence to support the defendants’ convictions. As a general rule, evidence that the defendants possessed weapons or other paraphernalia that may have been used in committing the crimes for which they are charged is relevant. See 1 J. Weinstein & M. Berger, Weinstein’s Evidence 11401[10], at 401-70 & n. 14 (a collection of cases). In United States v. Romero, 692 F.2d 699 (10th Cir.1982), we upheld the admission of two revolvers seized from a van in which the defendants were transporting marijuana because “[t]he firearms may have been part of the circumstantial evidence of an intent to distribute the marijuana.” 692 F.2d at 705. Although the instant case is not on all fours with Romero, that court’s reasoning is applicable here. In this prosecution for conspiracy to manufacture amphetamine, and attempted manufacture of amphetamine, the firearms seized from the Sullivan and Fisher homes were introduced" }, { "docid": "21561554", "title": "", "text": "MM Handgun Found in Defendant’s Automobile at the Time of His Arrest? Appellant challenges the admission of evidence showing that he was in possession of a loaded pistol when arrested. The handgun was uncovered immediately after defendant had left his apartment where the cocaine and other firearms were later found by agents executing a search warrant. After a bench conference outside of the presence of the jury, the trial court found that the evidence was probative as to defendant’s intent, knowledge, and use of the weapons found in his bedroom. Finding that the “probative value of the evidence outweigh[ed] the prejudicial effect,” R.Vol. II at 69-71, the trial court allowed the evidence. In evaluating the trial court’s admission of evidence, we are bound to uphold the trial court unless we find an abuse of discretion. See United States v. Keys, 899 F.2d 983, 987 (10th Cir.) (decision whether to exclude evidence as being unfairly prejudicial is one for which trial judge is particularly well-suited), cert. denied, — U.S. —, 111 S.Ct. 160, 112 L.Ed.2d 125 (1990). The trial court is given broad discretion in determining whether evidence is relevant and whether the probative value of the evidence outweighs any unfair prejudice to the defendant. We find no abuse of discretion here. Although appellant contends that there was “never any showing that the[re] was any connection between the 9 mm. handgun and the drug trafficking charges,” Appellant’s Brief at 45, we believe that the handgun was indeed relevant to defendant’s “possession, knowledge and ownership of the firearms found in the bedroom in the apartment.” R.Vol. II at 70. Faced with almost identical circumstances in United States v. Sullivan, 919 F.2d 1403 (10th Cir.1990), this court agreed with several other circuits that “firearms are generally admissible in a drug conspiracy trial because they are ‘tools of the trade’ for those engaged in illegal drug activity.” Id. at 1420 (citations omitted). Although we noted that such a broad proposition must not “substitute for a more detailed case-by-case analysis under Federal Rules of Evidence 401 and 403,” id., we were persuaded that the admission" }, { "docid": "9876529", "title": "", "text": "consider this argument on appeal. II. We now turn to the other issues on appeal. Williams claims that the admission of the firearms was unfairly prejudicial. As already explained, a ruling denying an objection based on unfair prejudice is very difficult to overturn. Williams faces an additional hurdle in trying to have the guns excluded because the same weapons were admitted in the trial of co-conspirator Green and that admission was recently affirmed by us on appeal. As we said in Green, we have long recognized that in drug trafficking firearms have become “tools of the trade” and thus are probative of the existence of a drug conspiracy. See also, United States v. Cresta, 825 F.2d 538, 554 (1st Cir.1987), cert. denied [486 U.S. 1042], 108 S.Ct. 2033 [100 L.Ed.2d 618] (1988); United States v. Montes-Cardenas, 746 F.2d 771, 777 (11th Cir.1984); United States v. Perez, 648 F.2d 219, 224 (5th Cir. unit B), cert. denied, 454 U.S. 1055 [102 S.Ct. 602, 70 L.Ed.2d 592] (1981). Green, 887 F.2d at 27. One weapon was directly linked to Williams by both Beeche and Gray. Other weapons were linked to the other defendants. We cannot say that the court abused its discretion in admitting the guns. In addition, we note that the court was aware of the possible prejudice that could result from brandishing guns in the courtroom and took steps to avoid that prejudice. III. Mattis and Baines take issue with the sufficiency of the evidence presented by the government on a number of issues. When an appellant attacks the sufficiency of the evidence of a criminal conviction, we consider the facts in the light most favorable to the prosecution. United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989); United States v. Torres-Lopez, 851 F.2d 520, 527 (1st Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989). Our inquiry is limited to whether any reasonable juror “ ‘after viewing the evidence in the light most favorable to the prosecution ... could have found the essential elements of the crime beyond a reasonable doubt.’ ” Serrano, 870" } ]

[ { "docid": "8667749", "title": "", "text": "OPINION TENNEY, District Judge. This action concerns the interpretation of an insurance contract. The plaintiff, Nipkow & Kobelt, Inc., Parliament Textile Division (“Parliament”), instituted this diversity action to recover on a fire insurance policy (“policy”) issued by the defendant, The North River Insurance Co. (“North River”). In 1984, almost $600,000 of the plaintiff’s inventory was destroyed by a fire. The defendant now moves for summary judgment, arguing that the fire occurred at a location which was not covered by plaintiff’s policy. The plaintiff contends that the policy covered its entire inventory, regardless of where it was located. The plaintiff cross-moves for summary judgment on the issue of the policy’s coverage. The Court concludes that the inventory at issue here was covered by the plaintiff’s policy. BACKGROUND The facts are undisputed in this matter. Parliament deals in textile fabrics, and its goods are processed at various plants. Parliament purchases unfinished fabric from various mills, has the fabric dyed or finished, and then sells the fabric to clothing manufacturers. Parliament does not own or operate any plants; its fabrics are sent to various factories to be processed. In March, 1984, there was a fire at Jamel Textiles, Inc. (“Jamel”), which is a printing and finishing plant located in Lebanon, Pennsylvania. Approximately one-half of the plaintiff’s total inventory was on Jamel’s premises at the time of the fire, and, in June 1984, the plaintiff submitted its proof of loss under the policy for $594,848.10. North River denied insurance coverage on the ground that the loss occurred at a location that was not specifically listed in the policy and therefore the loss was not covered by the plaintiff’s policy. Parliament argues that the policy was intended to cover its entire inventory, regardless of where it was located. The parties have cross-moved for summary judgment on the issue of coverage. DISCUSSION Summary judgment may be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. (“Rule”) 56(c); see generally 6 J. Moore, W. Taggart and J. Wicker, Moore’s Federal Practice If" } ]

[ { "docid": "15317815", "title": "", "text": "in production. Plaintiff did not make this projection in a vacuum; it did so in large part because it enjoyed such an increase the year before. While a jury could find that plaintiff fraudulently misrepresented its loss, that finding is not inescapable. Therefore, the presumption of fraud is not conclusive and defendant is not entitled to summary judgment. Further, cases dismissing an insured’s claim for breach of the “false swearing” clause have done so on much clearer proof of intentional misrepresentation. For example, in Saks & Co., supra, 295 N.Y.S.2d at 672, 242 N.E.2d at 835, physical evidence proved the insured lied about the presence of persian rugs allegedly destroyed in an apartment fire. The insured also claimed he lost three quarters of a million dollars worth of gems after the fire by theft, but never took inventory, attempted to secure, or attempted to recover the gems until three months after the fire. In Oak Point Indus. Park, Inc. v. Massachusetts Bay Ins. Co., 143 A.D.2d 79, 531 N.Y.S.2d 329, 330 (2d Dep’t 1988), the court dismissed the insured’s claim for breach of the contract’s false swearing clause after the insured had been convicted of fraud in a separate criminal proceeding stemming from his attempt to defraud the insurance company regarding the same claim. Plaintiff’s explanation supporting its disallowed claim is not so “unreasonable or fantastic” that fraud must be found as a matter of law. Plaintiff’s reliance on past sales history and the question of fact as to Fonda’s competitive status create questions of fact as to whether plaintiff intentionally misrepresented its claim. iii. The extra expense claim Defendant also argues that plaintiff misrepresented its extra expenses claim because it calculated its expenses using the full absorption method of accounting and claimed expenses which were in fact not extra. (Hurwitz aff., 1170). Although I have found that plaintiff is not entitled to all the extra expenses which it has claimed, defendant has not shown by clear and convincing evidence that plaintiff intentionally misstated them. Jack Slawson, plaintiff’s director of insurance, negotiated the Policy and the Endorsement for plaintiff. He" }, { "docid": "1046106", "title": "", "text": "that there was a material discrepancy between the statements made by the plaintiffs under oath in their proofs of loss, and their statements when testifying at the trial that the former were false, so as to justify the court in assuming it, and directing verdicts for the defendants. It is only fraudulent false swearing in furnishing the preliminary proofs, or in the examinations which the insurers have a right to require, that avoids the policies, and it was for the jury to determine whether that swearing was false and fraudulent. Id. at 382-83 (emphasis added). Similarly, in American Ins. Co. v. Jass, 22 F.2d 793 (5th Cir.1927), a fire had destroyed a warehouse located in Georgia. Claiming that the policy was void due to the submission of a false affidavit, the insurer declined to pay. The court stated: Regarding the affidavit of [the plaintiff], while it was in fact inaccurate, there was other evidence tending to show that he was simply mistaken and did not willfully swear falsely. Under the circumstances ... it was not error to submit the case to the jury under proper instructions. Id. at 794 (emphasis added). See also Camden Fire Ins. Ass’n v. Penick, 2 F.2d 964 (5th Cir.1924) (“We are of opinion that whether the claim was fraudulently or innocently made was a question peculiarly within the province of the jury.”). Thus, under our cases, the issue of whether the proof of loss was false and fraudulent should have been resolved by the jury. Cases interpreting Georgia law require a similar result. In Casey Enterprises, Inc. v. American Hardware Mutual Insurance Co., 655 F.2d 598 (5th Cir.1981) the court discussed Georgia’s law respecting misstatements in proofs of loss. The court stated: Under Georgia law misstatements in a proof of loss will not form the basis for a defense against the insured unless the insurer shows that the misstatements were made fraudulently. The district court found no evidence in the record that any of the misstatements in the proof of loss were fraudulent.... Since ... there is no evidence that it contained fraudulent misstatements, the" }, { "docid": "21842572", "title": "", "text": "through mere mistake.” Black’s Law Dictionary 725 (rev. 5th ed. 1979). There is no distinction between false statements made in proof of loss statements and false statements made under oath. See Sun-bright Fashions, Inc. v. Greater New York Mutual Insurance Co., 34 A.D.2d 235, 236, 310 N.Y.S.2d 760 (2d Dep't 1970), aff'd, 28 N.Y.2d 563, 319 N.Y.S.2d 609, 268 N.E.2d 323 (1971). In Sunbright Fashions the Appellate Division reversed a denial of summary judgment upon determining that the facts supported only an inference of deliberate false testimony. In that case, the claimant admitted that he had lied under oath and had prepared false documents to support his false claim. 34 A.D.2d at 237, 310 N.Y.S.2d 760. We accept the fact, therefore, that according to the law of New York, a false statement made on an examination under oath must be both material and willful in order to void a fire insurance policy. III Appellants contend that the district court erred as a matter of law in refusing to consider its motion under Rule 60(b). We disagree. Our previous ruling was the law of the case, and the district judge correctly found that it had no jurisdiction to review an appellate court’s decision. Eutectic Corp. v. Metco Inc., 597 F.2d 32, 34 (2d Cir.1979); United States v. Fernandez, 506 F,2d 1200, 1202 (2d Cir.1974). See also Seese v. Volkswagenwerk A.G., 679 F.2d 336, 337 n. 1 (3d Cir.1982) (“the basis of the Rule 60(b)(6) motion was before this court and the Supreme Court, and thus could not be considered by the district court”). Judge Sweet correctly noted that the appellants cite no material change of circumstances or newly discovered evidence so as to bring the matter under the aegis of Standard Oil Co. v. United States, 429 U.S. 17, 18, 97 S.Ct. 31, 32, 50 L.Ed.2d 21 (1976). IV Appellants also urge that this Court correct its own mistake by recalling its mandate. They vigorously contend that our previous decision, which focused solely on the legal standard to be used in determining materiality, incorrectly assumed the element of willfulness. They argue," }, { "docid": "11091303", "title": "", "text": "whether defendant relied upon misrepresentation allegedly made in the application for the policy, or whether defendant relied upon misrepresentation allegedly made subsequent to the issuance of the policy and subsequent to the destruction of the property covered by the policy. Counsel stated with admirable frankness that the defendant was only relying upon misrepresentation made by plaintiffs subsequent to the fire which caused destruction of the property that was insured. He further stated that the misrepresentations relied upon by him to defeat recovery were, first, that plaintiffs made misrepresentations to the defendant as to the party or parties from whom they purchased the property; second, that they made misrepresentations as to how much they paid for the property. The policy is filed as an exhibit to the complaint. It contains the following provision, beginning at line 1: “This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof or the interest of the insured therein or in case of any fraud or false swearing by the insured relative thereto.” In Insurance Co. v. Scales, 101 Tenn. 628, at pages 639 and 640, 49 S.W. 743, at page 746, the Court said: “There must, from the nature of things, be a difference between the cases, even though the policy provide that false swearing, either before or after the loss, shall vitiate the policy. When the false swearing is in the application, it forms the basis upon which the contract rests, and, if fraud enters into it, the policy would be voided, even though the policy [does] not so provide. But, after the loss occurs, then voiding the policy is in the nature of a penalty or forfeiture. In other words, in such cases the holding is virtually that although insured has had a loss, and may be entitled to recover from it, yet, as he has been guilty of fraud in the proofs, he must have his policy vacated and set aside a3 a punishment for such fraud or attempted fraud." }, { "docid": "21408266", "title": "", "text": "TIMBERS, Chief Judge. QUESTION PRESENTED In these companion actions brought to recover a total of $25,000 under three fire insurance policies covering a two-story dwelling in Branford, Connecticut, which was completely destroyed by fires in May 1957, the controlling question, believed to be dispositive of all issues in both eases, is whether misrepresentations, fraud and false swearing at the trial with respect to material facts by the only plaintiff insured who testified voids the policies pursuant to a concealment and fraud provision, identical in each policy, prescribed by Connecticut statute. After a ten day trial of the consolidated actions to the Court without a jury, the Court holds that the misrepresentations, fraud and false swearing at the trial with respect to material facts by plaintiff Giuseppe Lomartira, Sr. voided each of the policies. Accordingly, the Court orders that judgment enter in favor of defendant, with costs, in each action. JURISDICTION Jurisdiction is founded on diversity of citizenship. Plaintiffs are Connecticut citizens. Defendant American Automobile Insurance Company being a Missouri corporation, is a citizen of that state. Defendant Queen Insurance Company of America, being a New York corporation, is a citizen of that state. The amount in controversy in each action exceeds $3000, exclusive of interest and costs. FACTS Relief Sought In Civil Action No. 7295 plaintiffs seek recovery under two fire insurance policies issued by American Automobile Insurance Company, each in amount of $10,000, as a result of fires which completely destroyed the insured dwelling located in Branford, Connecticut. In Civil Action No. 7296 plaintiffs seek recovery under a fire insurance policy issued by Queen Insurance Company of America in amount of $5,000 covering the same dwelling, as a result of the same fires. Disputed Issues At the trial defendants conceded that the policies were in effect at the time of the fires on May 26, 1957 and May 30, 1957, and that the insured two-story dwelling was partially damaged by the first fire and was totally destroyed by the latter fire. For trial purposes, they were treated as one fire and one loss. The chief disputed issues at the" }, { "docid": "5439156", "title": "", "text": "on December 18 were the same as the ones stolen on the morning of December 7, and that the jewelry never contained real diamonds. Therefore, XL argues, “plaintiff has made material misrepresentations by consistently exaggerating] the value of the loss in this case.” Mars Media/XL Opp. at 8. Further, it argues that those misrepresentations trigger a provision in the policy which states that a party’s false or fraudulent claim as to a loss renders the policy void. Plaintiff clearly states that it moves this Court for an order granting summary judgment as to liability alone and not as to damages. Thus, any dispute as to the value of the jewelry concerns damages and is immaterial to XL’s liability to plaintiff. See PI. Opp. at 12. XL may not manufacture factual issues to defeat plaintiffs motion for summary judgment. In any event, XL presents no evidence that plaintiff misrepresented the value of the jewelry other than the deposition testimony of Ribaeoff that it would have been a “miracle” for a jeweler to copy the three pieces by the time they were recovered. XL presents no evidence to establish that, under the language of the insurance policy, plaintiff “knowingly concealed or misrepresented any material fact or circumstances concerning this insurance” or that plaintiff committed any “fraud or false swearing” or made “any false or fraudulent claim.” See Mars Media/XL Opp. at 8; see Vetter Deck Ex. A. “General Policy Considerations” at 1. Accordingly, because XL fails to raise a genuine issue of material fact regarding its liability to plaintiff based on the 12/5 Certificate, the Court finds that plaintiff is entitled to summary judgment. CONCLUSION For the reasons stated above, the Court: (1) grants summary judgment in favor of Johnson as to the Fourth Claim for Relief asserting negligence; (2) grants summary judgment in favor of Johnson as to the Fifth Claim for Relief asserting breach of bailment; (3) denies plaintiffs motion for summary judgment as to the Fourth Claim for Relief asserting negligence against Mars Media; (4) grants summary judgment in favor of LOUD as to the Fourth Claim for Relief" }, { "docid": "98429", "title": "", "text": "new address, 5737 West Division Street, Chicago. About the time, of the removal of the stock to the new location, plaintiff Tenore arranged through a broker, to insure the personal property of the partnership for $80,000.00, and the policies of insurance were duly issued. One insurance company desired an inspection of the property and contents, and arranged for an appointment at the premies on October 10, 1951 at 10 a. m. When the parties arrived at the scheduled hour on October 10th, they discovered that during the night a serious fire, accompanied by explosions, had seriously damaged plaintiffs’ property. The nature of the fire aroused suspicion and the origin of the fire was investigated, but the Chicago Fire Department listed the cause as “undetermined.” After the fire the windows and doors of' the building were open, and the contents-largely unprotected. By agreement of' the parties concerned, the guns, gun. parts and related merchandise were removed to a designated warehouse. The-merchandise was sorted and placed on tables and the two plaintiffs made an inventory. The actual pricing or valuing-of the merchandise was done later by Scaramuzzo, and he placed a value thereon of $78,698.34. This sum was incorporated into the sworn proofs of loss. The companies refused to pay, their-principal defense being that the policies, sued upon became and were rendered void because of the wilful and false swearing of the plaintiffs with respect to the value- and loss of the property insured. Each of the policies here involved provided. “The entire policy shall be void if, whether before or after a loss, the insured has. willfully concealed or misrepresented any material facts or circumstances concerning this insurance or the subject thereof,. * * * or in case of any fraud or false-swearing by the insured relating thereto.” The inventory was divided into 532 items or lots. The first 161 lots were made up of one gun each. All of these guns had been used. Forty-five were listed as riot shotguns which although of .12 gauge had barrels of only twenty inches in length. A number of the guns were sawed-off" }, { "docid": "21408280", "title": "", "text": "to explain, Lomar-tira’s detailed testimony of improvements made by the Russo Roofing Company, for which Lomartira said he paid more than $8,000. On this issue, plaintiffs chose to offer no rebuttal evidence whatsoever, either by recalling Lomartira or otherwise. Such conduct by plaintiffs cannot preclude the Court from treating the issue of misrepresentations, fraud and false swearing at the trial as having been raised and tried. Accordingly, the Court must make a determination on that issue. And while it may not have been necessary for defendants to have moved to amend their answers to conform to the evidence pursuant to Rule 15(b), their motions were timely, having been made as soon as it was clear that there would be no attempted explanation of the apparent misrepresentations, fraud and false swearing by Lomartira. Defendants’ motions to amend their answers to conform to the evidence are granted. MISREPRESENTATIONS, FRAUD AND FALSE SWEARING AT THE TRIAL BY PLAINTIFFS VOIDED EACH OF THE POLICIES In the Court’s view, the resolution of one substantive issue is dispositive of these cases: whether the misrepresentations, fraud and false swearing at the trial with respect to material facts by the only plaintiff insured who testified voids the policies pursuant to the concealment and fraud provision, identical in each policy, prescribed by Connecticut statute. The concealment and fraud provision contained in each of the three fire insurance policies here involved is a standard provision in such policies in most of the states of this country. As far as the Court has been able to ascertain, the Connecticut state courts have never had occasion to consider whether the misrepresentations, fraud or false swearing “after a loss” which voids a policy containing such provision includes such conduct when perpetrated by the insured at the trial of an action upon the policy. And the jurisdictions which have considered the question have split in their resolution thereof, with some indications of diverse results even within individual jurisdictions Apparently those courts which have held the provision inapplicable to testimony given at trial consider it to have been the purpose of the respective legislative prescriptions" }, { "docid": "22241250", "title": "", "text": "do not operate as an assignment of the insurance policy. Rather, they function as an agreement between the insurer and the parties as to the method by which the policy’s proceeds are to be distributed in the event of a loss. 10A Couch Cyclopedia of Insurance Law 2d § 42:684 (Rev. ed.). Mortgage clauses can be segregated into two principal categories. The first group, known as \"loss payable clauses,\" provide that the proceeds of the policy shall be paid first to the mortgagee, to the extent of his interest. The second group, often referred to as \"standard mortgage clauses,” are more specific in that they also provide that the mortgagee shall be protected against loss due to any act or neglect of the mortgagor. Id. at § 42:682. . The letter set forth the reasons for denial as follows: 1. The fire was [procured] to be set by you or by persons in [privity] with you, and or with your knowledge and permission, and therefore your claims under the policy are barred. 2. Your claims under the policy are barred, as a result of fraud and false swearing and the misrepresentation and concealment of material facts relating to the cause and [origin] of the fire. . The insurance policy contained the standard policy language relevant to fraud and false swearing that is provided by Michigan statute: This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto. Mich.Comp.Laws Ann. § 500.2832. . At the close of defendant's proofs, plaintiff moved for directed verdict on the fraud and false swearing claim, alleging insufficiency of the evidence. The district court denied the motion. . The Bank also asserted before the district court, and reasserts here, other theories upon which a grant of summary judgment could be based, including that it is entitled to reformation of the policy and that a" }, { "docid": "1046105", "title": "", "text": "to develop the issue just quoted. As I shall demonstrate, the facts of this case disclose that Woods probably did have an insurable interest in the house, since the evidence indicated that he owned it at the time of the fire. Foreclos ing Woods’ opportunity to litígate the issue merely because of a misstatement in a proof of loss is summary injustice at its worst. In Insurance Companies v. Weides, 81 U.S. (14 Wall.) 375, 20 L.Ed. 894 (1871) the Supreme Court indicated that the issue of whether statements made by an insured are false and fraudulent misrepresentations are questions of fact upon which a jury should decide. The Court mentioned: It is true the policies stipulated that fraud or false swearing on the part of the assured should work a forfeiture of all claim under them. The false swearing referred to is such as may be in the submission of preliminary proofs of loss, or in the examination to which the assured agreed to submit. But it does not inevitably follow from the fact that there was a material discrepancy between the statements made by the plaintiffs under oath in their proofs of loss, and their statements when testifying at the trial that the former were false, so as to justify the court in assuming it, and directing verdicts for the defendants. It is only fraudulent false swearing in furnishing the preliminary proofs, or in the examinations which the insurers have a right to require, that avoids the policies, and it was for the jury to determine whether that swearing was false and fraudulent. Id. at 382-83 (emphasis added). Similarly, in American Ins. Co. v. Jass, 22 F.2d 793 (5th Cir.1927), a fire had destroyed a warehouse located in Georgia. Claiming that the policy was void due to the submission of a false affidavit, the insurer declined to pay. The court stated: Regarding the affidavit of [the plaintiff], while it was in fact inaccurate, there was other evidence tending to show that he was simply mistaken and did not willfully swear falsely. Under the circumstances ... it was not" }, { "docid": "21408274", "title": "", "text": "each of the policies; that provision, included in the policies pursuant to Connecticut law, is as follows : “Concealment, fraud. This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.” Defendants claimed, by their motion to amend their answers to conform to the evidence, that plaintiffs, through the testimony at the trial of Giuseppe Lomar-tira, Sr., were guilty of misrepresentations of material facts with respect to the insured property, and had engaged in fraud and false swearing with relation thereto, thereby voiding each of the three policies in accordance with the concealment and fraud provision set forth above. Defendants further claimed that, while plaintiff Rose Lomartira did not testify, the testimony of Giuseppe Lomartira, Sr. must be considered as having been offered on behalf of both plaintiffs. The Court reserved decision on defendants’ oral motions at the time of trial. Subsequently., with the Court’s permission, written motions to the same effect were filed in each action. Rule 15(a), to the extent here applicable, provides: “ * * * a party may amend his pleading only by leave of court * * and leave shall be freely given when justice so requires.” Construing this rule, the Supreme Court has said: “In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.— the leave sought should, as the rules require, be ‘freely given.’ Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that" }, { "docid": "22241206", "title": "", "text": "introduced that equipment was valued with no deduction for depreciation and in contradiction of plaintiff’s own financial statements. In addition, Standard Fire introduced evidence indicating that Wyckoff misrepresented its financial condition, the nature of its relationship and loan status with the Bank, and the status of negotiations for the sale of Julie’s Family Portraits. At the close of trial, the district court instructed the jury on the elements of fraud as follows: In order to establish that the policy is void on the grounds of misrepresentation, concealment, fraud or false swearing on the part of the plaintiff, the defendant has the burden of proof by clear and convincing evidence that the plaintiff: 1. Made a statement, 2. Such statement was false, 3. Such statement was material, 4. That the plaintiff knew the representation was false at the time it was made, or that it was made recklessly without any knowledge of its truth, and 5. The false representation was made with the intention of deceiving the defendant. The jury returned a special verdict, finding that Wyckoff’s contents loss was $300,-000, that the camera loss was $35,000, that the plaintiff did not cause the fire, and that Wyekoff had committed fraud and false swearing. The result of the jury’s verdict was to void the policy and to release Standard Fire from liability to Wyekoff. At the end of trial, Wyekoff moved for judgment notwithstanding the verdict, arguing that, in order to sustain a defense of fraud and false swearing in Michigan, Standard Fire must rely on the alleged misrepresentations made by the insured and suffer prejudice as a result of that reliance. As an alternative ground for judgment notwithstanding the verdict, Wyekoff argued that, assuming arguendo that the elements of fraud do not include reliance and prejudice, there was not sufficient evidence of fraud and false swearing to submit the issue to the jury. Plaintiff further argued that the court should grant a new trial on the basis that the subsequent verdict was against the clear weight of the evidence. The district court denied plaintiffs motions for a judgment notwithstanding the" }, { "docid": "17681649", "title": "", "text": "an examination, “although not a formal proof of loss, nevertheless is an elaboration upon and partakes of the nature of a proof of loss, and therefore comes within the statute even though not specifically mentioned.” Id. at 169. Relying on this Court’s decision in Vernon v. Aetna Insurance Co., 301 F.2d 86 (5th Cir.), cert. denied, 371 U.S. 819, 83 S.Ct. 33, 9 L.Ed.2d 59 (1962), the Court reasoned that, if false statements in the more formal proof of loss will not void the policy unless they are fraudulent, material and harmful to the insurer, certainly the intent of the statute is that false statements of lesser consequence should not be allowed to void a policy unless they, too, meet such requirements. Id. The District Court’s disregard of the jury’s finding of concealment was affirmed because there was “no allegation or proof ... that the false statements were fraudulently made, were material to the issue of liability, or caused the insurers to waive or lose any valid defense to the policies.” Id. The Court also relied on Fireman's Fund Insurance Co. v. Reynolds, 85 S.W.2d 826 (Tex.Civ.App.—Waco 1935, writ ref’d), which held that false statements by an insured, made during a post-loss examination required by the insurance company in connection with proofs of loss, fell within the scope of the predecessor to Article 21.19. There, through Chief Justice Gallagher, the Court stated that, “The false statements relied on to work a forfeiture of the rights of the insured under a policy must have been willfully made and must not have resulted from inadvertance or mistake.... Our courts have uniformly required an insurer seeking to defeat liability on the ground of fraud and false swearing to fully meet the requirements of [the precedessor to Article 21.19]. Id. at 829. Vernon, on which the Texas court in Ska-tell relied, was an appeal from an action on a personal property insurance policy for the loss of jewelry. After the suit was filed, the daughter of the assured-plaintiff gave a sworn statement to the insurer (Aetna) that the alleged burglary was a sham, staged" }, { "docid": "22241251", "title": "", "text": "under the policy are barred, as a result of fraud and false swearing and the misrepresentation and concealment of material facts relating to the cause and [origin] of the fire. . The insurance policy contained the standard policy language relevant to fraud and false swearing that is provided by Michigan statute: This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto. Mich.Comp.Laws Ann. § 500.2832. . At the close of defendant's proofs, plaintiff moved for directed verdict on the fraud and false swearing claim, alleging insufficiency of the evidence. The district court denied the motion. . The Bank also asserted before the district court, and reasserts here, other theories upon which a grant of summary judgment could be based, including that it is entitled to reformation of the policy and that a loss payee is not barred from recovery due to the fraud of another. The district court declined to address the reformation argument. It did, however, address the Bank's theory that rights under a loss payable clause cannot be defeated by fraud and false swearing that occurs after the loss due to the fact that the rights of parties to a fire insurance policy are fixed as of the time of the fire. The district court ultimately rejected this theory. We need not review this portion of the decision or address the reformation theory because we affirm the summary judgment on the basis that Standard Fire was estopped from denying that the Bank's interests are protected under a standard mortgage clause. . Similarly, a trial court may grant a directed verdict only if it concludes, after viewing all the evidence in the light most favorable to the non-moving party, that \"all reasonable men would agree that there has been an essential failure of proof.” Rhea v. Massey-Ferguson, Inc., 767 F.2d 266, 269 (6th Cir.1985) (quoting Snider" }, { "docid": "21408273", "title": "", "text": "to take appropriate steps to determine whether there has been any violation of any law applicable to testimony under oath in this Court.” At no time during the remainder of the trial was any explanation whatsoever offered as to the discrepancy between Lomartira’s testimony about $8,000 having been paid to Russo for improvements on the insured property and the flatly contradictory evidence produced by Russo. Although plaintiffs did present a rebuttal case and Lomartira was present in the courtroom during plaintiffs’ rebuttal case, he was not called as a rebuttal witness and the discrepancy between his direct testimony regarding improvements and Russo’s evidence on the same subject was not even touched upon. DEFENDANTS’ MOTIONS TO AMEND ANSWERS TO PLEAD DEFENSE OF MISREPRESENTATIONS, FRAUD AND FALSE SWEARING BY PLAINTIFFS AT TRIAL On the last day of the trial, at the conclusion of the evidence, defendants orally moved, pursuant to Rule 15(b), Fed.R.Civ.P., to amend their answers to conform to the evidence by pleading as a defense to each action a concealment and fraud provision contained in each of the policies; that provision, included in the policies pursuant to Connecticut law, is as follows : “Concealment, fraud. This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.” Defendants claimed, by their motion to amend their answers to conform to the evidence, that plaintiffs, through the testimony at the trial of Giuseppe Lomar-tira, Sr., were guilty of misrepresentations of material facts with respect to the insured property, and had engaged in fraud and false swearing with relation thereto, thereby voiding each of the three policies in accordance with the concealment and fraud provision set forth above. Defendants further claimed that, while plaintiff Rose Lomartira did not testify, the testimony of Giuseppe Lomartira, Sr. must be considered as having been offered on behalf of both plaintiffs. The Court reserved decision on" }, { "docid": "22241194", "title": "", "text": "RALPH B. GUY, Jr., Circuit Judge, Plaintiff, J.C. Wyckoff & Associates, Inc. (Wyckoff), commenced this suit in order to recover proceeds under a fire insurance policy issued by defendant, The Standard Fire Insurance Company (Standard Fire). The policy named intervening plaintiff, Second National Bank of Saginaw (the Bank), a lender of money to Wyckoff, under a loss payable clause. Standard Fire refused to pay proceeds to either the Bank or Wyck-off, claiming that Wyckoff committed arson and fraud and false swearing, thus barring recovery under the policy by either the Bank or Wyckoff. Standard Fire maintained that, because the Bank was named under a loss payable endorsement rather than a standard mortgage endorsement, the Bank’s right to recover was contingent upon Wyckoff s right to recover. After a trial on the issue of Standard Fire’s liability to Wyckoff, the jury rendered a verdict against Standard Fire on the arson defense and in favor of Standard Fire on the fraud and false swearing defense. Upon cross motions for summary judgment filed by the Bank and Standard Fire, the district court held that the jury verdict did not bar recovery by the Bank for outstanding loans made to Wyckoff and secured by real estate and personal property covered under the policy. The Bank’s claim regarding the amount of judgment was subsequently resolved pursuant to a stipulation entered into between the Bank and Standard Fire. Wyckoff raises numerous claims of error on appeal: (1) the trial court erred in denying Wyckoff’s motions for directed verdict and judgment notwithstanding the verdict, as proof of reliance is required to sustain a claim of fraud and false swearing in Michigan, and Standard Fire admits that there was no reliance; (2) the issue of whether reliance is a necessary element of fraud and false swearing should have been certified for decision to the Michigan Supreme Court; (3) even assuming that proof of reliance is not required, the district court should have granted plaintiff’s motion for judgment notwithstanding the verdict because there was not sufficient evidence of fraud and false swearing to submit the issue to the jury;" }, { "docid": "22241207", "title": "", "text": "Wyckoff’s contents loss was $300,-000, that the camera loss was $35,000, that the plaintiff did not cause the fire, and that Wyekoff had committed fraud and false swearing. The result of the jury’s verdict was to void the policy and to release Standard Fire from liability to Wyekoff. At the end of trial, Wyekoff moved for judgment notwithstanding the verdict, arguing that, in order to sustain a defense of fraud and false swearing in Michigan, Standard Fire must rely on the alleged misrepresentations made by the insured and suffer prejudice as a result of that reliance. As an alternative ground for judgment notwithstanding the verdict, Wyekoff argued that, assuming arguendo that the elements of fraud do not include reliance and prejudice, there was not sufficient evidence of fraud and false swearing to submit the issue to the jury. Plaintiff further argued that the court should grant a new trial on the basis that the subsequent verdict was against the clear weight of the evidence. The district court denied plaintiffs motions for a judgment notwithstanding the verdict and for a new trial. Standard Fire moved for summary judgment on the Bank’s claim, and the Bank filed a cross-motion for summary judgment, contending that Standard Fire was estopped from denying liability to the Bank. After a hearing, the district court granted the Bank’s motion for summary judgment and denied the motion for summary judgment filed by Standard Fire. Upon determining that the jury verdict did not bar recovery by the Bank, the court held that judgment should be entered in favor of the Bank for an amount not to exceed the lesser of the following: (1) the outstanding amount of the Bank’s loan as secured by the real estate loan, notwithstanding that the Bank may have had additional security; (2) the value of the destroyed property; and (3) the amount of the insurance policy. The Bank then brought a motion for summary judgment to determine the amount due, alleging $565,191.02 as the amount due and owing by Wyekoff as of the date of the motion. This amount was calculated by beginning with" }, { "docid": "22241195", "title": "", "text": "Fire, the district court held that the jury verdict did not bar recovery by the Bank for outstanding loans made to Wyckoff and secured by real estate and personal property covered under the policy. The Bank’s claim regarding the amount of judgment was subsequently resolved pursuant to a stipulation entered into between the Bank and Standard Fire. Wyckoff raises numerous claims of error on appeal: (1) the trial court erred in denying Wyckoff’s motions for directed verdict and judgment notwithstanding the verdict, as proof of reliance is required to sustain a claim of fraud and false swearing in Michigan, and Standard Fire admits that there was no reliance; (2) the issue of whether reliance is a necessary element of fraud and false swearing should have been certified for decision to the Michigan Supreme Court; (3) even assuming that proof of reliance is not required, the district court should have granted plaintiff’s motion for judgment notwithstanding the verdict because there was not sufficient evidence of fraud and false swearing to submit the issue to the jury; (4) because the jury’s verdict was against the great weight of the evidence, the district court erred in denying plaintiff’s motion for a new trial; (5) disputes over the value of lost property should have been referred to arbitration as provided by the policy; (6) the district court erred by allowing Standard Fire to amend at trial its allegations of fraud; and (7) the court erred by allowing Standard Fire to deduct loan payments, made by Wyckoff to the Bank subsequent to the fire, from insurance proceeds due the Bank under the insurance policy. Standard Fire cross appeals, arguing that (1) the trial court erroneously excluded evidence regarding locked doors within the Wyckoff buildings, thereby prejudicing Standard Fire’s ability to effectively present an arson defense; and (2) the trial court erred by ruling that Standard Fire was estopped from relying upon a loss payable clause in the policy as a basis for denying the Bank recovery. For the reasons set forth below, we affirm the district court in all respects. I. On July 3, 1983," }, { "docid": "21842571", "title": "", "text": "the instant appeal. At the same time they moved for leave to file a second petition for rehearing and to consolidate that petition with this appeal. This motion was denied. Appellants question on this appeal the district court’s application of the “law of the case” doctrine. They also ask us to consider whether and under what circumstances a panel of the Court may recall its mandate. We turn to these issues. II In July 1984, some months after the previous panel’s decision the New York Court of Appeals reaffirmed, in Deitsch Textiles, Inc. v. New York Property Insurance Underwriting Ass’n, 62 N.Y.2d 999, 479 N.Y.S.2d 487, 468 N.E.2d 669 (1984), that in addition to materiality, an insurance company must prove willfulness to void a fire insurance policy. Appellee attempts to distinguish Deitsch Textiles on the ground that it involved false statements made in a proof of loss statement and not a false swearing on an examination under oath. The distinction is not supported by precedent. False swearing is “swearing knowingly and intentionally false and not through mere mistake.” Black’s Law Dictionary 725 (rev. 5th ed. 1979). There is no distinction between false statements made in proof of loss statements and false statements made under oath. See Sun-bright Fashions, Inc. v. Greater New York Mutual Insurance Co., 34 A.D.2d 235, 236, 310 N.Y.S.2d 760 (2d Dep't 1970), aff'd, 28 N.Y.2d 563, 319 N.Y.S.2d 609, 268 N.E.2d 323 (1971). In Sunbright Fashions the Appellate Division reversed a denial of summary judgment upon determining that the facts supported only an inference of deliberate false testimony. In that case, the claimant admitted that he had lied under oath and had prepared false documents to support his false claim. 34 A.D.2d at 237, 310 N.Y.S.2d 760. We accept the fact, therefore, that according to the law of New York, a false statement made on an examination under oath must be both material and willful in order to void a fire insurance policy. III Appellants contend that the district court erred as a matter of law in refusing to consider its motion under Rule 60(b). We" }, { "docid": "21408283", "title": "", "text": "“voiding” provision of the policies simply by not incorporating their misrepresentations, fraud and false swearing in a sworn “proof of loss” — none ever having been filed — and that such conduct can be perpetrated for the first time at trial with impunity, would make a mockery of the legislative prescription. The Court concludes that, under the circumstances of the instant cases, the provision in each of the policies which declares the entire policy shall be void if there are misrepresentations, fraud or false swearing by an insured — “whether before or after a loss” — applies to testimony of the insured at the trial of an action based on such policies. The factual question of whether plaintiffs did engage in misrepresentations, fraud or false swearing at the trial of these actions, must be answered in the affirmative, as the testimony of Giuseppe Lomartira, Sr., viewed in the light of the evidence produced by Dominick Russo, all too plainly demonstrates. Giving full consideration to the demeanor of the respective witnesses on the stand, any interest they had in the outcome of the cases, the inherent probability and consistency of their testimony, and its corroboration or lack of corroboration with other credible evidence, the Court finds that the insured, Giuseppe Lomartira, Sr., in his testimony at the trial of the instant actions, fraudulently misrepresented and swore falsely regarding the improvements he alleged were made by the Russo Roofing Company to the insured dwelling prior to the fires and regarding the alleged payment of over $8,-000 by Lomartira to Russo for such work. Since the valuation of the insured dwelling, as a measure of the loss, was one of the chief disputed issues at the trial, the materiality of Lomartira’s fraudulent misrepresentations and false swearing is obvious. CONCLUSION The Court concludes that the misrepresentations, fraud and false swearing at the trial with respect to material facts by Giuseppe Lomartira, Sr. voided each, of the three fire insurance policies here involved. Accordingly, the Court orders that judgment enter in favor of each of the defendants, with costs, in each action. . 28 U.S.C." } ]

[ { "docid": "22531192", "title": "", "text": "Pennoyer 's sway, but we have declined to stretch general jurisdiction beyond limits traditionally recognized.9 As this Court has increasingly trained on the \"relationship among the defendant, the forum, and the litigation,\" Shaffer, 433 U.S., at 204, 97 S.Ct. 2569,i.e., specific jurisdiction,10 general jurisdiction has come to occupy a less dominant place in the contemporary scheme.11 IV With this background, we turn directly to the question whether Daimler's affiliations with California are sufficient to subject it to the general (all-purpose) personal jurisdiction of that State's courts. In the proceedings below, the parties agreed on, or failed to contest, certain points we now take as given. Plaintiffs have never attempted to fit this case into the specific jurisdiction category. Nor did plaintiffs challenge on appeal the District Court's holding that Daimler's own contacts with California were, by themselves, too sporadic to justify the exercise of general jurisdiction. While plaintiffs ultimately persuaded the Ninth Circuit to impute MBUSA's California contacts to Daimler on an agency theory, at no point have they maintained that MBUSA is an alter ego of Daimler. Daimler, on the other hand, failed to object below to plaintiffs' assertion that the California courts could exercise all-purpose jurisdiction over MBUSA. 12 But see Brief for Petitioner 23, n. 4 (suggestion that in light of Goodyear, MBUSA may not be amenable to general jurisdiction in California); Brief for United States as Amicus Curiae 16, n. 5 (hereinafter U.S. Brief) (same). We will assume then, for purposes of this decision only, that MBUSA qualifies as at home in California. A In sustaining the exercise of general jurisdiction over Daimler, the Ninth Circuit relied on an agency theory, determining that MBUSA acted as Daimler's agent for jurisdictional purposes and then attributing MBUSA's California contacts to Daimler. The Ninth Circuit's agency analysis derived from Circuit precedent considering principally whether the subsidiary \"performs services that are sufficiently important to the foreign corporation that if it did not have a representative to perform them, the corporation's own officials would undertake to perform substantially similar services.\" 644 F.3d, at 920 (quoting Doe v. Unocal Corp., 248 F.3d" } ]

[ { "docid": "12291643", "title": "", "text": "on alterego theory); cf. Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 142-43 (2d Cir. 1991) (affirming diversity jurisdiction premised in part on alter ego relationship between parties). While it is true that in Daimler, the Supreme Court “expressed doubts as to the usefulness of an agency analysis,” Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014) (emphasis supplied), the Daimler opinion does not call into question the alter-ego theory of jurisdiction asserted by Plaintiffs here. In Daimler, the Supreme Court expressed skepticism regarding the relevance of an agency relationship to assertions of general jurisdiction. See Daimler, 134 S.Ct. at 759. The Ninth Circuit general jurisdiction test at issue permitted a court to impute a “subsidiary’s jurisdictional contacts” if those activities were “important” to the parent. Id. The Supreme Court contrasted the Ninth Circuit’s “less rigorous test” with the more common standard, applicable here, that requires a showing that the subsidiary was “so dominated by the [parent] as to be its alter ego.” Id. The Supreme Court’s concern regarding the Ninth Circuit’s “sprawling view of general jurisdiction,” id. does not apply where there are allegations that the subsidiary was in fact the alter ego of a corporation over which jurisdiction is proper. See NYKCool A.B. v. Pac. Int’l Servs., Inc., 66 F.Supp.3d 385, 392-93 (S.D.N.Y. 2014) (rejecting argument that Daimler extends to alter-ego jurisdiction). The Court agrees with Plaintiffs that the alter ego theory of jurisdiction is viable. In order plausibly to allege that LGMF was the Fixing Banks’ alter ego, Plaintiffs must show: (1) that “the [Fixing Banks] exercised complete domination over [LGMF] with respect to the transac tion at issue,” and (2) that “such domination was used to commit a fraud or wrong that injured the [Plaintiffs].” Lakah v. UBS AG, 996 F.Supp.2d 250, 260 (S.D.N.Y. 2014) (quoting MAG Portfolio Consultant, GMBH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 63 (2d Cir. 2001) (internal quotation marks omitted)). This standard is “relaxed where the alter ego theory is used not to impose liability, but merely to establish jurisdiction.” Int'l" }, { "docid": "12291664", "title": "", "text": "not depend on Defendants’ \"average” trading activity, but rather Defendants’ trading around the PM Fixing on days when the Fix Price was allegedly manipulated. . The Court notes that, in contrast to Plaintiffs’ price manipulation claims, Plaintiffs' manipulative device claims under Section 6(c)(1) and 17 C.F.R. 180.1 require scienter to be proven by intentional or reckless conduct. See 17 C.F.R. § 180.1(a); Prohibition on Manipulative and Deceptive Devices, 76 Fed. Reg. at 41,404; CFTC v. Kraft Foods Grp., Inc., 153 F.Supp.3d 996, 1014-15 (N.D. Ill. 2015), motion to certify appeal denied, No. 15 C 2881, 195 F.Supp.3d 996, 2016 WL 3907027 (N.D. Ill. July 19, 2016). Because the Court has already found that Plaintiffs alleged strong circumstantial evidence of conscious misbehavior or recklessness, this element has been adequately alleged. . The SAC’s relatively thin principal-agent allegations reflect in part the posture of this case. None of the individual defendants, presumably employees of the Fixing Banks, has been identified, and there has been no document discovery. Assuming this case reaches the summary judgment stage, Plaintiffs will be required to adduce significantly more evidence establishing that agents of the Fixing Banks violated the CEA and did so acting within the scope of their employment. . Notably, Plaintiffs do not claim' to be clients of UBS who suffered losses as a result of UBS front-running their orders or triggering their stop loss orders. See SAC ¶¶ 301-02. Rather Plaintiffs allege that they \"suffered harm in respect of the sales they conducted where the relevant sales price was artificially lowered by collusive manipulation” by the Defendants' in connection with the PM Fixing. SAC ¶¶ 323-28. . Citing Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 423 (2d Cir. 2005), LGMF asserts that statutory personal jurisdiction under the Sherman Act—and seemingly under the CEA—is proper only if Plaintiffs can show that venue is proper because “LGMF is ‘an inhabitant,’ ‘may be found,' or ‘transacts business’ in this district.” LGMF Mem. at 3. This argument is at best a red herring. Daniel requires a plaintiff establishing jurisdiction under the Sherman Act to also satisfy" }, { "docid": "12291644", "title": "", "text": "Court’s concern regarding the Ninth Circuit’s “sprawling view of general jurisdiction,” id. does not apply where there are allegations that the subsidiary was in fact the alter ego of a corporation over which jurisdiction is proper. See NYKCool A.B. v. Pac. Int’l Servs., Inc., 66 F.Supp.3d 385, 392-93 (S.D.N.Y. 2014) (rejecting argument that Daimler extends to alter-ego jurisdiction). The Court agrees with Plaintiffs that the alter ego theory of jurisdiction is viable. In order plausibly to allege that LGMF was the Fixing Banks’ alter ego, Plaintiffs must show: (1) that “the [Fixing Banks] exercised complete domination over [LGMF] with respect to the transac tion at issue,” and (2) that “such domination was used to commit a fraud or wrong that injured the [Plaintiffs].” Lakah v. UBS AG, 996 F.Supp.2d 250, 260 (S.D.N.Y. 2014) (quoting MAG Portfolio Consultant, GMBH v. Merlin Biomed Grp. LLC, 268 F.3d 58, 63 (2d Cir. 2001) (internal quotation marks omitted)). This standard is “relaxed where the alter ego theory is used not to impose liability, but merely to establish jurisdiction.” Int'l Equity Invs., Inc., 475 F.Supp.2d at 459 (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). In the jurisdictional context, a plaintiff need only show that the “allegedly controlled entity “was a shell’ for the allegedly controlling party.” Id. At this stage, Plaintiffs have adequately alleged that LGMF is the alter ego of the Fixing Banks. This conclusion follows from the Court’s finding supra that Plaintiffs have plausibly alleged—albeit barely—that the Fixing Banks engaged in a conspiracy to manipulate the Fix Price between January 1, 2006 and December 31, 2012. According to the SAC, this scheme operated around and through the PM Fixing call administered by LGMF. The SAC alleges that the PM Fixing call was the perfect locus for the Fixing Banks’ scheme because it was a seemingly-legitimate opportunity for the Fixing Banks to share information necessary to their collusion. SAC ¶¶ 74, 201. Moreover, the SAC alleges that it was through the Fix Price, set by the Fixing Banks on LGMF’s behalf, that the Fixing Banks ultimately profited" }, { "docid": "12291630", "title": "", "text": "misrepresentation of the Fix Price was, by its nature, self-concealing. See id. (“The passing off of a sham article as one that is genuine is an inherently self-concealing fraud, whether what is passed off is a fake vase sold as a real antique ... or a collusive bid purporting to reflect genuine competition.” (internal citations omitted)); see also Nine West Shoes, 80 F.Supp.2d at 198 (“[B]y alleging a price-fixing scheme, the plaintiff sufficiently has alleged the first prong of fraudulent concealment .... ”). Thus, Plaintiffs have satisfied the first element. As for the second element, as described supra, Plaintiffs have adequately alleged that they remained ignorant of the alleged manipulative scheme until a point of time within the statute of limitations. Cf. In re Sumitomo Copper Litig., 120 F.Supp.2d 328, 346-47 (S.D.N.Y. 2000) (noting that dismissal at the pleading stage, and even summary judgment, is often inappropriate on issues of constructive knowledge that typically “depend on inferences drawn from the facts of each particular case” (citations omitted)). With respect to the third element, a “plaintiff will prove reasonable diligence either by showing that: (a) the circumstances were such that a reasonable person would not have thought to investigate, or (b) the plaintiffs attempted investigation was thwarted.” See In re Publ’n Paper Antitrust Litig., No. 304-md-1631 (SRU), 2005 WL 2175139, at *5 (D. Conn. Sept. 7, 2005). While Plaintiffs’ allegations regarding due diligence are thin, the filing of the first complaint in this consolidated action on March 3, 2014, several months prior to Deutsche Bank’s withdrawal from the LGMF, and their rapid assembly of data analyses in support of their consolidated complaint (and amendments thereto) sufficiently demonstrates due diligence for purposes of withstanding the Fixing Banks’ Motion to Dismiss. The Court therefore finds that Plaintiffs have adequately alleged tolling; at the pleading stage, the Court need not determine the precise contours of the applicable tolling period. X. Plaintiffs’ Unjust Enrichment Claim Fails Under New York law, a claim for unjust enrichment requires that “ ‘(1) [the] defendant was enriched, (2) at plaintiffs expense, and (3) equity and good conscience militate against" }, { "docid": "12291631", "title": "", "text": "will prove reasonable diligence either by showing that: (a) the circumstances were such that a reasonable person would not have thought to investigate, or (b) the plaintiffs attempted investigation was thwarted.” See In re Publ’n Paper Antitrust Litig., No. 304-md-1631 (SRU), 2005 WL 2175139, at *5 (D. Conn. Sept. 7, 2005). While Plaintiffs’ allegations regarding due diligence are thin, the filing of the first complaint in this consolidated action on March 3, 2014, several months prior to Deutsche Bank’s withdrawal from the LGMF, and their rapid assembly of data analyses in support of their consolidated complaint (and amendments thereto) sufficiently demonstrates due diligence for purposes of withstanding the Fixing Banks’ Motion to Dismiss. The Court therefore finds that Plaintiffs have adequately alleged tolling; at the pleading stage, the Court need not determine the precise contours of the applicable tolling period. X. Plaintiffs’ Unjust Enrichment Claim Fails Under New York law, a claim for unjust enrichment requires that “ ‘(1) [the] defendant was enriched, (2) at plaintiffs expense, and (3) equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover.’ ” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 55 (2d Cir. 2011) (citations omitted). The “essence” of such a claim “is that one party has received money or a benefit at the expense of another.” Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000) (quoting City of Syracuse v. R.A.C. Holding, Inc., 258 A.D.2d 905, 685 N.Y.S.2d 381 (4th Dep’t 1999)). As a result, courts require proof that the defendant received a “specific and direct benefit” from the property sought to be recovered, rather than an “indirect benefit.” Id. While the plaintiff “need not be in privity with the defendant to state a claim for unjust enrichment,” neither can the relationship between the parties be “too attenuated to support such a claim.” Sperry v. Crompton Corp., 8 N.Y.3d 204, 215-16, 831 N.Y.S.2d 760, 863 N.E.2d 1012 (2007); see also Reading Int’l, Inc. v. Oaktree Capital Mgmt., 317 F.Supp.2d 301, 334 (S.D.N.Y. 2003) (an unjust enrichment claim “requires some type" }, { "docid": "12291665", "title": "", "text": "be required to adduce significantly more evidence establishing that agents of the Fixing Banks violated the CEA and did so acting within the scope of their employment. . Notably, Plaintiffs do not claim' to be clients of UBS who suffered losses as a result of UBS front-running their orders or triggering their stop loss orders. See SAC ¶¶ 301-02. Rather Plaintiffs allege that they \"suffered harm in respect of the sales they conducted where the relevant sales price was artificially lowered by collusive manipulation” by the Defendants' in connection with the PM Fixing. SAC ¶¶ 323-28. . Citing Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 423 (2d Cir. 2005), LGMF asserts that statutory personal jurisdiction under the Sherman Act—and seemingly under the CEA—is proper only if Plaintiffs can show that venue is proper because “LGMF is ‘an inhabitant,’ ‘may be found,' or ‘transacts business’ in this district.” LGMF Mem. at 3. This argument is at best a red herring. Daniel requires a plaintiff establishing jurisdiction under the Sherman Act to also satisfy the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28. Thus, Plaintiffs need not satisfy the venue provision of the CEA (or the Clayton Act) for personal jurisdiction to be proper under the CEA, and, as Plaintiffs explain, personal jurisdiction under the CEA is adequate to establish supplementary jurisdiction over Plaintiffs’ other claims. PL’s Mem. Opp. LGMF at 8 n. 12. . Because the Court concludes that LGMF is the Fixing Banks' alter ego it need not reach Plaintiffs' arguments that personal jurisdiction is proper under a \"conspiracy jurisdiction” theory. Pis.’ Opp. LGMF at 7-8. It also is unnecessary to consider the parties arguments regarding the application of Federal Rules of Civil Procedure 4(k)(l) and 4(k)(2). . Moreover, the Supreme Court made clear that an agency relationship remains relevant" }, { "docid": "12291640", "title": "", "text": "likewise dismissed for the same reasons articulated above with respect to the Fixing Banks. XII. Plaintiffs Have Sufficiently Alleged Personal Jurisdiction over LGMF Plaintiffs allege that the Court has personal jurisdiction over LGMF as an alter ego of the Fixing Banks. Pl.’s Opp. LGMF at 1, 6, 9. LGMF does not dispute that the Fixing Banks are subject to the Court’s personal jurisdiction but contends that Plaintiffs have not adequately alleged that LGMF is their alter ego. Moreover, it argues, personal jurisdiction based on an alter ego theory is inconsistent with the Due Process Clause in light of the Supreme Court’s recent decision in Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). LGMF Mem. at 4-9. As explained below, Daimler does not support LGMF’s position, and, at this stage in the proceedings, Plaintiffs have adequately pled that LGMF acted as the alter ego of the Fixing Banks. Accordingly, personal jurisdiction is proper, and LGMF’s motion is denied. Plaintiffs bear the burden of establishing personal jurisdiction. When no discovery has taken place, however, a plaintiff need only make a prima facie showing of jurisdiction—through “legally sufficient allegations”—to survive a Rule 12(b)(2) motion. In re Parmalat Sec. Litig., 376 F.Supp.2d 449, 452 (S.D.N.Y. 2005). The Court will construe “all pleadings and affidavits in the light most favorable to the plaintiff’ and resolve “all doubts in the plaintiffs favor.” Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citations omitted). On the other hand, the Court need not accept either party’s legal conclusions as true, nor will it draw “argumentative inferences” in either party’s favor. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). Plaintiffs contend that the Court has personal jurisdiction over the Fixing Banks (and LGMF) under Federal Rules of Civil Procedure 4(k)(1) and 4(k)(2) or under the Sherman Act and the CEA. Pl.’s Mem. Opp. LGMF at 5, 8, 9. LGMF concedes that personal jurisdiction under the CEA extends to the fullest extent permitted by the Due Process Clause. LGMF Mem. at" }, { "docid": "12291646", "title": "", "text": "from their manipulation. Id. ¶¶ 222, 228-32. While Plaintiffs’ evidence of the Fixing Banks’ “domination” of LGMF is less persuasive, it is adequate at the pleading stage. New York courts consider a number of indicia in order to determine whether one entity dominated another such that the corporate form should be disregarded, including inter alia: “the failure to observe corporate formality; inadequate capitalization; intermingling of personal and corporate funds; the sharing of common office space, address and telephone numbers of the alleged dominating entity and the subject corporation; an overlap of ownership, directors, officers or personnel; the use of the corporation as a means to perpetrate the wrongful act against the plaintiff.” Miramax Film Corp. v. Abraham, No. 01-cv-5202 (GBD), 2003 WL 22832384, at *8 (S.D.N.Y. Nov. 25, 2003) (citing Wm. Passalacqua Builders, Inc., 933 F.2d at 138). Several of these factors are allegedly present with respect to LGMF. LGMF and the Fixing Banks have overlapping ownership and directors; the Fixing Banks are the only owners and directors of LGMF. See SAC ¶ 73. Plaintiffs have also alleged that LGMF is financially dependent on membership fees paid by the Fixing Banks and that LGMF has no real corporate headquarters or separate mailing address. Id.-, Pis.’ Opp. LGMF at 3, Exs. 15-25. LGMF disputes the extent to which LGMF is dependent on and controlled by the Fixing Banks, but at the pleading stage the Court assumes that these allegations are true. Finally, and most critically, the wrongful acts plausibly alleged by Plaintiffs are themselves evidence of the Fixing Banks’ domination of LGMF. Chief among LGMF’s corporate purposes is the “promotion, administration and conduct of the London Gold Market Fixings.” Pis.’ Opp. LGMF Ex. 12 (LGMF Memorandum of Association) at 1. The use of the PM Fixing as a disguise for market-manipulation is inconsistent with the “promotion” and “administration” of the PM Fixing and plainly contrary to LGMF’s corporate purposes. Plaintiffs will be required to supplement these allegations going forward—for instance by identifying the LGMF personnel that were purportedly involved in the operation of the PM Fixing and their nexus to the" }, { "docid": "12291666", "title": "", "text": "the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28. Thus, Plaintiffs need not satisfy the venue provision of the CEA (or the Clayton Act) for personal jurisdiction to be proper under the CEA, and, as Plaintiffs explain, personal jurisdiction under the CEA is adequate to establish supplementary jurisdiction over Plaintiffs’ other claims. PL’s Mem. Opp. LGMF at 8 n. 12. . Because the Court concludes that LGMF is the Fixing Banks' alter ego it need not reach Plaintiffs' arguments that personal jurisdiction is proper under a \"conspiracy jurisdiction” theory. Pis.’ Opp. LGMF at 7-8. It also is unnecessary to consider the parties arguments regarding the application of Federal Rules of Civil Procedure 4(k)(l) and 4(k)(2). . Moreover, the Supreme Court made clear that an agency relationship remains relevant to assertions of specific jurisdiction. Id. at 759 n.13. . While LGMF suggests that English law may govern whether the Court may pierce LGMF’s corporate veil, LGMF has not provided any indication that there is a \"true conflict of laws” between English law and New York law on this point. In the absence of a true conflict, the Court will apply New York law. See Int’l Equity Invs., Inc., 475 F.Supp.2d at 458-59 (applying New York law to veil-piercing analysis in the absence of any identified conflict between New York and English law). Likewise, although Plaintiffs suggest that Federal common law, rather than New York law may govern, there is no discernable difference with respect to the issues here. See Wajilam Exports (Singapore) Pte. Ltd. v. ATL Shipping Ltd., 475 F.Supp.2d 275, 284 n.10 (S.D.N.Y. 2006) (Federal common law and New York law of veil-piercing are not \"meaningfully” distinct); see also Lakah, 996 F.Supp.2d at 260 (\"the Second Circuit’s common law standard [for veil piercing] is taken directly from New York law”)." }, { "docid": "12291639", "title": "", "text": "can suggest anticompetitive conspiracy.”). In the absence of any other circumstantial evidence or plus factors, Plaintiffs’ allegations that UBS quoted prices that were lower than market averages around the PM Fixing are simply inadequate to create a plausible inference of conspiracy. Plaintiffs’ CEA claims fail for similar reasons. Both Plaintiffs’ price manipulation and manipulative device claims require allegations that UBS caused (and intended to cause) the artificial price in question. In re Amaranth Nat. Gas Commodities Litig., 730 F.3d at 173. Because Plaintiffs have failed to allege plausibly that UBS played a role in the Fixing Banks’ conspiracy to suppress gold prices, Plaintiffs cannot establish that UBS caused (and intended to cause) the down ward price manipulation at issue. Likewise, because Plaintiffs have not alleged any (non-conelusory) facts suggesting that UBS intentionally associated itself with and participated in the Fixing Banks’ scheme, their aiding and abetting and principal-agent claims fail as well. See id. (proof of unlawful intent required for aiding and abetting liability under the CEA). Plaintiffs’ claim against UBS for unjust enrichment is likewise dismissed for the same reasons articulated above with respect to the Fixing Banks. XII. Plaintiffs Have Sufficiently Alleged Personal Jurisdiction over LGMF Plaintiffs allege that the Court has personal jurisdiction over LGMF as an alter ego of the Fixing Banks. Pl.’s Opp. LGMF at 1, 6, 9. LGMF does not dispute that the Fixing Banks are subject to the Court’s personal jurisdiction but contends that Plaintiffs have not adequately alleged that LGMF is their alter ego. Moreover, it argues, personal jurisdiction based on an alter ego theory is inconsistent with the Due Process Clause in light of the Supreme Court’s recent decision in Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). LGMF Mem. at 4-9. As explained below, Daimler does not support LGMF’s position, and, at this stage in the proceedings, Plaintiffs have adequately pled that LGMF acted as the alter ego of the Fixing Banks. Accordingly, personal jurisdiction is proper, and LGMF’s motion is denied. Plaintiffs bear the burden of establishing personal jurisdiction. When no discovery has taken" }, { "docid": "12291526", "title": "", "text": "OPINION AND ORDER VALERIE CAPRONI, United States District Judge The Complaint in these consolidated cases, which involve the alleged manipulation and suppression of gold prices during the period from January 1, 2004 to June 30, 2013 (the “Class Period”), sug gests that in the era of supercomputers, big data, and sophisticated statistical anal-yses, it may be very difficult to hide illegal conduct that might otherwise have escaped detection. On the other hand, it also brings to mind a quip attributed to Benjamin Disraeli—there are three kinds of lies: lies, damn lies and statistics. Whether the detailed statistical analyses contained in the Complaint reveal ground truth about the activities of the Defendant banks who participated in the Gold Fix or are on the “lies, damn lies and statistics” side of the dichotomy remains to be seen. The Defendants in this case are UBS AG and UBS Securities LLC (together, “UBS”); The London Gold Market Fixing Ltd. (“LGMF”); and the five LGMF fixing banks during the Class Period: The Bank of Nova Scotia (“BNS”), Barclays, Deutsche Bank, HSBC, and Société Générale (collectively, the “Fixing Banks”). Plaintiffs are individuals and entities that sold physical gold, gold futures traded on the Commodity Exchange, Inc. (“COMEX”) market, shares in gold exchange-traded funds (“ETFs”), or options on gold ETFs during the Class Period. Seeking to recover losses suffered as a result of Defendants’ alleged manipulation and suppression of the price of gold through the gold “fixing” process, Plaintiffs bring putative class action claims for (1) unlawful restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 et seq.; (2) market manipulation in violation of the Commodity Exchange Act (“CEA”), 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.2; (3) employment of a manipulative or deceptive device and false reporting in violation of the CEA, 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.1; (4) principal-agent liability in violation of the CEA, 7 U.S.C. §§ 1 et seq.; (5) aiding and abetting manipulation in violation of the CEA, 7 U.S.C. §§ 1 et seq., and (6) unjust enrichment. On" }, { "docid": "12291528", "title": "", "text": "July 22, 2014, the Court appointed Quinn Emanuel Urquhart & Sullivan, LLP and Berger & Montague P.C. as interim class co-counsel. See Maher v. Bank of Nova Scotia et al., 14-cv-1459 (S.D.N.Y.) (VEC), Dkt. 29. On August 13, 2014, the United States Judicial Panel on Multidis-trict Litigation transferred one case from the Northern District of California to this Court for “coordinated or consolidated pretrial proceedings” along with other cases that had been filed in this District. In re Commodity Exch., Inc., Gold Futures & Options Trading Litig., 38 F.Supp.3d 1394, 1395 (J.P.M.L. 2014); see also 28 U.S.C. § 1407. Discovery was stayed by the Court in these consolidated actions on October 20, 2014. Dkt. 22. On March 16, 2015, Plaintiffs filed a Second Consolidated Amended Class Action Complaint (the “SAC”), Dkt. 44. Defendants have moved to dismiss the SAC through three separate motions, the first filed by UBS, Dkt. 71, the second filed by the Fixing Banks, Dkt. 73, and the third filed by LGMF, Dkt. 75. For the following reasons, the Fixing Banks’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART, UBS’s Motion to Dismiss is GRANTED, and LGMF’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART. BACKGROUND I. The LGMF Gold Fixing London’s gold market (now known as the “London Bullion Market”) has been the center of the global market for gold since the late 1800s. SAC ¶ 93. Trading within the London Bullion Market, which operates on an over-the-counter basis, 24-hours a day, is the “indisputable international standard for gold and silver dealing and settlement.” Id. ¶¶ 94-95. The London gold fixing process (the “Fixing” or the “Gold Fixing”) has been integral to price-setting and trading on the London Bullion Market and the various gold markets around the world since 1919. Id. ¶¶ 77, 96. Historically, the purpose of the Fixing was to determine a daily benchmark price for one troy ounce of “Good Delivery” gold at a specified time during the London trading day. Id. ¶ 76. Because there is no single forum for trading gold and gold-related investments, the" }, { "docid": "12291628", "title": "", "text": "Pls.’ Opp. at 48. Based on the SAC, it appears that Plaintiffs would not have been on inquiry notice of the alleged manipulation prior to May 2014, when Deutsche Bank withdrew as a member of the LGMF, or at the earliest at some point in 2013, when “regulators across the globe began investigating benchmarking practices.” SAC ¶ 129. Either way, because Plaintiffs’ CEA claims were filed within two years of the discovery date, the Fixing Banks’ Motion to Dismiss based on the statute of limitations is denied. B. Plaintiffs’ Antitrust Claims Plaintiffs’ antitrust claims are subject to a four-year statute of limitations. See 15 U.S.C. § 15b. Plaintiffs argue that the statute of limitations should be tolled here due to Defendants’ fraudulent concealment. Pis.’ Opp. at 48-49. To show fraudulent concealment, “an antitrust plaintiff must prove (1) that the defendant concealed the existence of the antitrust violation^] (2) that plaintiff remained in ignorance of the violation until sometime within the ... statute of limitations; and (3) that his continuing ignorance was not the result of lack of diligence.” In re Nine West Shoes Antitrust Litig., 80 F.Supp.2d 181, 192 (S.D.N.Y. 2000) (quoting Klehr v. A.O. Smith Corp., 521 U.S. 179, 189, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997)). “A claim of fraudulent concealment must be pled with particularity, in accordance with the heightened pleading standards of Rule 9(b).” Hinds Cty., Miss. v. Wachovia Bank N.A, 700 F.Supp.2d 378, 399 (S.D.N.Y. 2010). At the same time, because resolution of a claim of fraudulent concealment is “intimately bound up with the facts of the case,” it often cannot be decided at the motion to dismiss stage. Id. (quoting In re Mercedes-Benz Anti-Trust Litig., 157 F.Supp.2d 355, 374 (D.N.J. 2001)). As to the first factor, a plaintiff may prove concealment by showing “either that the defendant took affirmative steps to prevent the plaintiffs discovery of his claim or injury or that the wrong itself was of such a nature as to be self-concealing.” State of N.Y. v. Hendrickson Bros., 840 F.2d 1065, 1083-84 (2d Cir. 1988). Here, the Fixing Banks’ alleged manipulation and" }, { "docid": "12291527", "title": "", "text": "HSBC, and Société Générale (collectively, the “Fixing Banks”). Plaintiffs are individuals and entities that sold physical gold, gold futures traded on the Commodity Exchange, Inc. (“COMEX”) market, shares in gold exchange-traded funds (“ETFs”), or options on gold ETFs during the Class Period. Seeking to recover losses suffered as a result of Defendants’ alleged manipulation and suppression of the price of gold through the gold “fixing” process, Plaintiffs bring putative class action claims for (1) unlawful restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 et seq.; (2) market manipulation in violation of the Commodity Exchange Act (“CEA”), 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.2; (3) employment of a manipulative or deceptive device and false reporting in violation of the CEA, 7 U.S.C. §§ 1 et seq. and CFTC Rule 180.1; (4) principal-agent liability in violation of the CEA, 7 U.S.C. §§ 1 et seq.; (5) aiding and abetting manipulation in violation of the CEA, 7 U.S.C. §§ 1 et seq., and (6) unjust enrichment. On July 22, 2014, the Court appointed Quinn Emanuel Urquhart & Sullivan, LLP and Berger & Montague P.C. as interim class co-counsel. See Maher v. Bank of Nova Scotia et al., 14-cv-1459 (S.D.N.Y.) (VEC), Dkt. 29. On August 13, 2014, the United States Judicial Panel on Multidis-trict Litigation transferred one case from the Northern District of California to this Court for “coordinated or consolidated pretrial proceedings” along with other cases that had been filed in this District. In re Commodity Exch., Inc., Gold Futures & Options Trading Litig., 38 F.Supp.3d 1394, 1395 (J.P.M.L. 2014); see also 28 U.S.C. § 1407. Discovery was stayed by the Court in these consolidated actions on October 20, 2014. Dkt. 22. On March 16, 2015, Plaintiffs filed a Second Consolidated Amended Class Action Complaint (the “SAC”), Dkt. 44. Defendants have moved to dismiss the SAC through three separate motions, the first filed by UBS, Dkt. 71, the second filed by the Fixing Banks, Dkt. 73, and the third filed by LGMF, Dkt. 75. For the following reasons, the Fixing Banks’ Motion" }, { "docid": "12291641", "title": "", "text": "place, however, a plaintiff need only make a prima facie showing of jurisdiction—through “legally sufficient allegations”—to survive a Rule 12(b)(2) motion. In re Parmalat Sec. Litig., 376 F.Supp.2d 449, 452 (S.D.N.Y. 2005). The Court will construe “all pleadings and affidavits in the light most favorable to the plaintiff’ and resolve “all doubts in the plaintiffs favor.” Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citations omitted). On the other hand, the Court need not accept either party’s legal conclusions as true, nor will it draw “argumentative inferences” in either party’s favor. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). Plaintiffs contend that the Court has personal jurisdiction over the Fixing Banks (and LGMF) under Federal Rules of Civil Procedure 4(k)(1) and 4(k)(2) or under the Sherman Act and the CEA. Pl.’s Mem. Opp. LGMF at 5, 8, 9. LGMF concedes that personal jurisdiction under the CEA extends to the fullest extent permitted by the Due Process Clause. LGMF Mem. at 2-3; Amaranth I, 587 F.Supp.2d at 526 (CEA extends personal jurisdiction to limits of Due Process Clause). Thus, personal jurisdiction over LGMF is proper so long as it comports with due process. Because LGMF concedes that personal jurisdiction over the Fixing Banks is proper, personal jurisdiction over LGMF comports with due process so long as the alter ego theory of jurisdiction is viable and Plaintiffs have adequately pled that LGMF is an alter ago of the Fixing Banks. The Second Circuit has consistently recognized that “it is compatible with due process for a court to exercise personal jurisdiction over an individual or a corporation ... when the individual or corporation is an alter ego or successor of a corporation that would be subject to personal jurisdiction in that court.” Transfield, ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d 221, 224 (2d Cir. 2009) (quoting Patin v. Thoroughbred Power Boats, 294 F.3d 640, 653 (5th Cir. 2002)); Int’l Equity Invs., Inc. v. Opportunity Equity Partners, Ltd., 475 F.Supp.2d 456, 458-460 (S.D.N.Y. 2007) (personal jurisdiction established" }, { "docid": "12291649", "title": "", "text": "show good cause why leave to file a Third Amended Complaint should be granted. CONCLUSION For the foregoing reasons, UBS’s Motion to DISMISS is GRANTED in its entirety. The Fixing Banks’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Fixing Banks’ Motion to Dismiss is GRANTED with respect to Plaintiffs’ claim for unlawful restraint of trade from the beginning of the Class Period through December 31, 2005, and from January 1, 2013 through the end of the Class Period. The Fixing Banks’ Motion to Dismiss is further GRANTED with respect to Plaintiffs’ manipulative device claims from the beginning of the Class Period to August 15, 2011, and with respect to Plaintiffs’ claim for unjust enrichment. The Fixing Banks’ Motion to Dismiss is DENIED with respect to Plaintiffs’ antitrust claims for unlawful restraint of trade from January 1, 2006 through December 13, 2012. The Fixing Banks’ Motion to Dismiss is further DENIED with respect to Plaintiffs’ price manipulation claims, Plaintiffs’ manipulative device claims after August 15, 2011, and Plaintiffs’ aiding and abetting and principal-agent liability claims. LGMF’s Motion to Dismiss is DENIED with respect to personal jurisdiction and is GRANTED IN PART and DENIED IN PART to the same extent as the Fixing Banks’ Motion to Dismiss. The Clerk of Court is respectfully directed to close the open motions at docket numbers 71, 73. Plaintiffs’ deadline to show good cause why leave to replead should be granted is October 17, 2016. The parties must appear for a pretrial conference on October 28, 2016 at 3:00 p.m. in courtroom 443 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, NY 10007. The parties, together with the parties in In re Silver Fixing, Ltd., Antitrust Litig., No. 14-md-2573 (VEC), must meet and confer regarding a proposed schedule for discovery and class certification. The parties are required to submit a joint proposal (if possible) or separate proposals (if a joint proposal is not possible) by October 21, 2016. Within that submission the parties must address whether discovery in this case should be consolidated with discovery in In re Silver" }, { "docid": "12291529", "title": "", "text": "to Dismiss is GRANTED IN PART and DENIED IN PART, UBS’s Motion to Dismiss is GRANTED, and LGMF’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART. BACKGROUND I. The LGMF Gold Fixing London’s gold market (now known as the “London Bullion Market”) has been the center of the global market for gold since the late 1800s. SAC ¶ 93. Trading within the London Bullion Market, which operates on an over-the-counter basis, 24-hours a day, is the “indisputable international standard for gold and silver dealing and settlement.” Id. ¶¶ 94-95. The London gold fixing process (the “Fixing” or the “Gold Fixing”) has been integral to price-setting and trading on the London Bullion Market and the various gold markets around the world since 1919. Id. ¶¶ 77, 96. Historically, the purpose of the Fixing was to determine a daily benchmark price for one troy ounce of “Good Delivery” gold at a specified time during the London trading day. Id. ¶ 76. Because there is no single forum for trading gold and gold-related investments, the price determined through the Gold Fixing (the “Fix Price”) is intended to provide an objective price point for gold producers, consumers, investors, derivatives traders, and central banks, and has thus become “the dominant price benchmark for the world’s gold trading.” Id. ¶ 77. Unlike many alleged price-fixing conspiracies, the fact that the Fixing Banks met daily to fix the price of gold was known to all market participants. At all times during the Class Period, the Gold Fixing took place each business day at 10:30 A.M. (the “AM Fixing”) and 3:00 P.M. (the “PM Fixing”) London time. Id. ¶¶ 1 n.1. During the Class Period, the Fixing was administered by the Fixing Banks, operating collectively through LGMF. Id. ¶¶ 79, 84. Founded in 1994, LGMF is a private company organized and based in the United Kingdom. Id. ¶¶ 72-73. Throughout the Class Period, LGMF was owned and controlled by the Fixing Banks. Id. ¶ 72. Throughout the Class Period, the Gold Fixing was conducted through a “Walra-sian” auction. Id. ¶ 81. Leading up to the" }, { "docid": "12291645", "title": "", "text": "Equity Invs., Inc., 475 F.Supp.2d at 459 (citing Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). In the jurisdictional context, a plaintiff need only show that the “allegedly controlled entity “was a shell’ for the allegedly controlling party.” Id. At this stage, Plaintiffs have adequately alleged that LGMF is the alter ego of the Fixing Banks. This conclusion follows from the Court’s finding supra that Plaintiffs have plausibly alleged—albeit barely—that the Fixing Banks engaged in a conspiracy to manipulate the Fix Price between January 1, 2006 and December 31, 2012. According to the SAC, this scheme operated around and through the PM Fixing call administered by LGMF. The SAC alleges that the PM Fixing call was the perfect locus for the Fixing Banks’ scheme because it was a seemingly-legitimate opportunity for the Fixing Banks to share information necessary to their collusion. SAC ¶¶ 74, 201. Moreover, the SAC alleges that it was through the Fix Price, set by the Fixing Banks on LGMF’s behalf, that the Fixing Banks ultimately profited from their manipulation. Id. ¶¶ 222, 228-32. While Plaintiffs’ evidence of the Fixing Banks’ “domination” of LGMF is less persuasive, it is adequate at the pleading stage. New York courts consider a number of indicia in order to determine whether one entity dominated another such that the corporate form should be disregarded, including inter alia: “the failure to observe corporate formality; inadequate capitalization; intermingling of personal and corporate funds; the sharing of common office space, address and telephone numbers of the alleged dominating entity and the subject corporation; an overlap of ownership, directors, officers or personnel; the use of the corporation as a means to perpetrate the wrongful act against the plaintiff.” Miramax Film Corp. v. Abraham, No. 01-cv-5202 (GBD), 2003 WL 22832384, at *8 (S.D.N.Y. Nov. 25, 2003) (citing Wm. Passalacqua Builders, Inc., 933 F.2d at 138). Several of these factors are allegedly present with respect to LGMF. LGMF and the Fixing Banks have overlapping ownership and directors; the Fixing Banks are the only owners and directors of LGMF. See SAC ¶ 73. Plaintiffs" }, { "docid": "12291647", "title": "", "text": "have also alleged that LGMF is financially dependent on membership fees paid by the Fixing Banks and that LGMF has no real corporate headquarters or separate mailing address. Id.-, Pis.’ Opp. LGMF at 3, Exs. 15-25. LGMF disputes the extent to which LGMF is dependent on and controlled by the Fixing Banks, but at the pleading stage the Court assumes that these allegations are true. Finally, and most critically, the wrongful acts plausibly alleged by Plaintiffs are themselves evidence of the Fixing Banks’ domination of LGMF. Chief among LGMF’s corporate purposes is the “promotion, administration and conduct of the London Gold Market Fixings.” Pis.’ Opp. LGMF Ex. 12 (LGMF Memorandum of Association) at 1. The use of the PM Fixing as a disguise for market-manipulation is inconsistent with the “promotion” and “administration” of the PM Fixing and plainly contrary to LGMF’s corporate purposes. Plaintiffs will be required to supplement these allegations going forward—for instance by identifying the LGMF personnel that were purportedly involved in the operation of the PM Fixing and their nexus to the Fixing Banks conspiracy—but, these allegations are sufficient at the pleading stage. XIII. Leave to Amend Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave” to a party to amend its complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave may be denied ‘for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.’ ” Techno-Marine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (additional citations omitted)). Ultimately, “the grant or denial of an opportunity to amend is within the discretion of the District Court.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Given the fact that Plaintiffs have already amended their Complaint twice and based on the parties’ briefs and the arguments presented during oral argument, it appears that leave to amend may be futile. Nevertheless, Plaintiffs shall have 14 days from the filing of this Opinion to" }, { "docid": "12291642", "title": "", "text": "2-3; Amaranth I, 587 F.Supp.2d at 526 (CEA extends personal jurisdiction to limits of Due Process Clause). Thus, personal jurisdiction over LGMF is proper so long as it comports with due process. Because LGMF concedes that personal jurisdiction over the Fixing Banks is proper, personal jurisdiction over LGMF comports with due process so long as the alter ego theory of jurisdiction is viable and Plaintiffs have adequately pled that LGMF is an alter ago of the Fixing Banks. The Second Circuit has consistently recognized that “it is compatible with due process for a court to exercise personal jurisdiction over an individual or a corporation ... when the individual or corporation is an alter ego or successor of a corporation that would be subject to personal jurisdiction in that court.” Transfield, ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d 221, 224 (2d Cir. 2009) (quoting Patin v. Thoroughbred Power Boats, 294 F.3d 640, 653 (5th Cir. 2002)); Int’l Equity Invs., Inc. v. Opportunity Equity Partners, Ltd., 475 F.Supp.2d 456, 458-460 (S.D.N.Y. 2007) (personal jurisdiction established on alterego theory); cf. Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 142-43 (2d Cir. 1991) (affirming diversity jurisdiction premised in part on alter ego relationship between parties). While it is true that in Daimler, the Supreme Court “expressed doubts as to the usefulness of an agency analysis,” Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014) (emphasis supplied), the Daimler opinion does not call into question the alter-ego theory of jurisdiction asserted by Plaintiffs here. In Daimler, the Supreme Court expressed skepticism regarding the relevance of an agency relationship to assertions of general jurisdiction. See Daimler, 134 S.Ct. at 759. The Ninth Circuit general jurisdiction test at issue permitted a court to impute a “subsidiary’s jurisdictional contacts” if those activities were “important” to the parent. Id. The Supreme Court contrasted the Ninth Circuit’s “less rigorous test” with the more common standard, applicable here, that requires a showing that the subsidiary was “so dominated by the [parent] as to be its alter ego.” Id. The Supreme" } ]

[ { "docid": "2542136", "title": "", "text": "Holman would plead guilty and the government would agree that a sentence no greater than one year and one day was an appropriate disposition of the case. On July 1, 1982, Holman appeared before the district court to make his plea. During the plea inquiry the court acknowledged the plea agreement and referred to it as providing “if the court accepts your plea of guilty and should decide to impose a custody sentence, that sentence would not exceed one year and one day and that there are no other promises.” The court then accepted the guilty plea and ordered a pre-sentence report. The court learned through the presen-tence report that Holman had a history of criminal activity and mental problems, information which was unknown to the government when the plea agreement was reached. On the date set for sentencing the court informed Holman that it was rejecting the plea agreement and offered Holman an opportunity to withdraw his guilty plea. Holman withdrew his plea, but noted that it was his understanding that the plea agreement had been unconditionally accepted when his plea was taken. Holman later moved that the court reinstate the guilty plea and sentence according to the plea agreement. This motion was denied. After these proceedings a new plea agreement was reached between Holman and the government under which Holman could be sentenced for up to thirty months. Holman then pled guilty and ultimately received the maximum sentence of thirty months. DISCUSSION The procedures associated with the court’s role in the plea agreement process are found in Rule 11(e) of the Federal Rules of Criminal Procedure. Subsection (1) describes the types of promises the attorney for the government can make. The promise made to Holman fits into category (C) since the government’s attorney promised to “agree that a specific sentence [was] the appropriate disposition of the case.” F.R.Cr.P. 11(e)(1)(C). With this type of agreement, “the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report.” F.R.Cr.P. 11(e)(2). I The" } ]

[ { "docid": "1062664", "title": "", "text": "pled guilty to Count Three (bank robbery) and Count Four (brandishing a firearm during and in relation to a crime of violence). In addition, Lopez stipulated to having committed Count One (carjacking) and Count Two (brandishing a firearm during, and in relation to a crime of violence). • This plea agreement allowed Lopez to avoid 18 U.S.C. § 924(c)(1)(C), which would have required a minimum term of 25 years for having committed two crimes involving the use of a firearm. The plea agreement, which the defendant signed, contained a preliminary sentencing calculation. The agreed upon calculation contained a total offense level of 26 and a criminal history category of VI, yielding a sentencing range of. 120-150 months imprisonment on Count Three. In addition, the plea agreement stated, “At the time of sentencing, both parties will recommend a sentence within the applicable advisory Guideline range as to Count Three and a sentence of seven years as to Count Four to be imposed consecutive to the sentence on Count Three.” The plea agreement contained language explicitly noting that the Probation Department and the Court would make their own guideline calculations and that “the validity of [the] Plea Agreement is not contingent upon the Probation Department’s or the Court’s concurrence with the [calculations in the agreement].” The presentence report found several errors in the plea agreement’s guideline calculation. As a result, both the presen-tence report and the district court found the appropriate offense level to be 30, not 26. This yielded a sentence of 168-210 months on Count Three. At the April 20, 2005, sentencing hearing, the district court allowed each party an opportunity to object to the sentencing report. Neither party did. The district court reviewed the calculation differences between the sentencing report and plea agreement. Lopez told the court he understood the differences. Lopez and his lawyer both accepted the validity of the sentencing report. The district court accepted the presen-tence report and sentenced the defendant to the lowest sentence within the sentencing guidelines, 168 months for Count Three plus a mandatory consecutive term of 84 months for Count Four; this" }, { "docid": "16549790", "title": "", "text": "Guidelines”) should be applied. Second, the PSR determined that Ro-sen’s total offense level should be 10, rather than 8, because, in addition to the base offense level and adjustments to which the parties had stipulated, there should be a two-step offense-level enhancement pursuant to 1995 Guidelines § 2Fl.l(b)(2)(A) because the offenses required “more than minimal planning.” Third, contrary to “the information ... available to th[e United States Attorney’s] Office (including representations by the defense) [that Rosen] ha[d] zero criminal history points” (Plea Agreement at 3), the PSR noted that Ro-sen had two prior convictions, placing him in criminal history category II, rather than I. Given an offense level of 10 and a criminal history category of II, the 1995 Guidelines-recommended range of imprisonment was 8-14 months. Rosen objected to the PSR, principally on the ground that its calculations resulted in a Guidelines range that would require imprisonment. He asked the district court for a ruling, or at least an indication, that the court would instead sentence him in accordance with the range of 0-6 months anticipated by the parties in the Plea Agreement. {See Hearing Transcript, April 14, 2004 (“Hrg.Tr.”), at 5-7.) The court declined to commit itself. {See id. at 7-8.) Rosen thereafter moved to withdraw his plea or, in the alternative, to have the court “impose a non-incarceratory sentence.” (Rosen Memorandum of Law in Support of Motion To Withdraw Plea or, in the Alternative, Sentencing Submission, dated May 14, 2004 (“Rosen Withdrawal Motion Memorandum”), at 1.) Portraying Rosen as a participant who was “irrelevant to the trading activity of H & R stock” and who “was one of [the scheme’s] victims” {id. at 3), the motion indicated that Rosen had entered into the Plea Agreement and pleaded guilty based on his belief that there was a “possibility and likelihood of no period of incarceration” {id. at 6), and that the parties’ “mutual mistake” {id.) as to the Guidelines range created “a substantial issue concerning the voluntariness and validity of the plea” {id.). Further, he argued, [ s]etting aside principles of contract law, the substantial disparity between the contents" }, { "docid": "5757751", "title": "", "text": "of Johnson’s Offense Level at 16, but disagreed with the parties’ Criminal History calculation. Because many of Johnson’s pri- or convictions were entered more than fifteen years before this action commenced, they could not be used to calculate his Criminal History Category. See U.S.S.G. § 4A1.2(e). Thus, the probation officer calculated Johnson’s Criminal History points at 6, corresponding to a Criminal History Category of III. This led to a guidelines range of 27 to 33 months. The probation officer also noted that the judge may consider departing upward under U.S.S.G. § 4A1.3. Because the 48 month sentence that the parties agreed to was not within the guidelines range that the probation officer calculated, the court held a hearing on May 19, 1994 to determine what to do next. At that hearing, Johnson’s counsel argued that the court should “specifically enforce” the plea agreement, as modified by the court’s statement to Johnson that is quoted above: in other words, sentence Johnson to 33 months. The government argued that specific enforcement was not the proper remedy, but rather Johnson should be allowed either to withdraw his guilty plea or to proceed with sentencing. The court continued sentencing to give the parties time to continue plea negotiations and for Johnson to consult with counsel. On June 28,1994, the court proceeded with sentencing. Judge Zagel denied Johnson’s request for a 33 month sentence, determining that Johnson’s remedy was to have an opportunity to withdraw his plea. See Fed. R.ÜRIM.P. 11(e)(4). Johnson declined to withdraw his guilty plea. The court then sentenced Johnson. Starting from the PSR’s Guidelines calculations, the court departed upward four points, to a Criminal History Category of V. \" When combined with an Offense Level of 16, the applicable sentencing range was 41 to 51 months, and the court imposed a sentence of 48 months. Timing of Sentencing Johnson first argues that during the February 9th status hearing, Judge Zagel accepted the 48 month sentence recommended in the Plea Agreement and effectively sentenced Johnson to that term before requesting and receiving a PSR, in violation of U.S.S.G. § 6Bl.l(c). Johnson did" }, { "docid": "2292585", "title": "", "text": "which occurred prior to the enactment of the Sentencing Guidelines, the government agreed to recommend a sentence of 2 years on each count to run concurrent to each other but consecutive to the Guideline sentence imposed for Counts 1-3. The plea agreement contained the parties’ calculation of the defendant’s applicable sentencing range under the Guidelines. The parties agreed that the defendant had an offense level of 12 and that the defendant’s role in the offense was that of an organizer pursuant to § 3Bl.l(c) of the Guidelines and therefore the offense level should be increased two levels to 14. The agreement further stated that the government recommended a two level reduction for the defendant’s acceptance of responsibility pursuant to § 3El.l(a). Finally, the parties agreed that the defendant had a criminal history category of IV. Based on these calculations, the applicable sentencing range was 21-27 months. The plea agreement also stated that the defendant understood that the district court did not participate in the plea agreement and was not bound by any recommendations of the government and that the defendant understood that he would not be allowed to withdraw his guilty plea once entered. The district court accepted the defendant’s plea. A presentence report was subsequently prepared which arrived at an applicable sentencing range that was higher than that reached by the parties in the plea agreement. The presentence report calculated the defendant’s offense level as 13 and his criminal history category as VI, resulting in an applicable range of 33-41 months. The defendant filed objections to these calculations. The district court granted several of his objections, reducing his criminal history category to V, but denied his objection to the calculation of his offense level which characterized him as an organizer resulting in the addition of two levels to his computation. At sentencing, the district court rejected the parties’ recommended sentence in favor of the calculations contained in the presentence report and sentenced the defendant to 37 months on Counts 1-3 (to run concurrently with each other), 5 years on'Count 4 (to run concurrently to Counts 1-3), and 5 years" }, { "docid": "23642155", "title": "", "text": "offense level of 20. Frederick H. Mandeb asserts that the district court violated the express terms of the plea agreement and the stipulation by: 1) sentencing him based on an offense history of 27 as opposed to the agreed upon level of 20, and 2) failing to give him the opportunity to withdraw the plea. In United States v. Holman, 728 F.2d 809, 813 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984), we stated that once the district court accepts the plea agreement, it is bound by the bargain. In Holman, the Court stated that the district court’s failure to indicate the status of the plea agreement would be construed as an acceptance of the agreement. Holman, 728 F.2d at 812. Frederick H. Mandeb erroneously asserts that if he was sentenced under level 20, then his sentence would be 33-41 months. Actually, depending upon the applicable criminal history category, at an offense level of 20, he could have a sentence within the range of 33 and 87 months according to both the sentencing guidelines and the plea agreement. The United States claims that the district court did not err because Frederick H. Mandeb was sentenced to a term of incarceration falling within the range provided for in the plea agreement. The government makes the tortured argument that by stating that the offense level should be 20, they really were saying that the sentence could be anywhere from 33 to 87 months. Consequently, because Frederick H. Man-deb was sentenced to 5 years and 10 months in prison, there was no breach of the agreement. This argument is just contrary to the signed plea agreement and stipulation. The stipulation, which was incorporated into the plea agreement and is therefore material in interpreting the plea bargain, clearly states that Frederick H. Mandeb’s offense level would be no higher than 20. It was not 20. Even though the actual sentence fell within the permissible range stated in the plea agreement, it was not arrived at by the method agreed upon in the stipulation. “A plea bargain itself is" }, { "docid": "15188591", "title": "", "text": "fifty grams or more of crack. Count Three charged that, on or about October 16, 2003, Cardona and a co-defendant intentionally and unlawfully distributed five grams or more of crack. On March 7, 2006, Cardona pled guilty to both of those counts. The terms of Cardona’s plea agreement provided for a base offense level of thirty, pursuant to U.S. Sentencing Guideline § 2D1.1(5), “for possession and conspiracy to possess with intent to distribute between three point five (3.5) and five (5) kilograms of cocaine and between thirty-five (35) and fifty (50) grams of cocaine base.” [Plea Agreement, DE 147, p. 5] Cardona agreed to both of these drug amounts in the plea agreement and at his change-of-plea hearing. The agreement also stipulated a three-level reduction for acceptance of responsibility, establishing a total offense level of 27 and a sentencing range of 70-87 months imprisonment. The parties did not stipulate to Cardona’s criminal history category, but the Presentence Report assigned him a criminal history category of I. The parties also agreed that no further adjustments or departures were applicable, and that the government would recommend that the court sentence Cardona to 87 months imprisonment. Though the plea agreement stated only that the government would recommend a sentence of 87 months imprisonment, during the sentencing hearing, the district court was under the mistaken impression that Cardona and the government had negotiated for and agreed to a sentence of 87 months. However, neither party objected to the district court’s characterization of the 87-month sentence as that “agreed upon” by the parties. Ultimately, the district court adopted the parties’ stipulations and sentenced Cardona to 87 months imprisonment. II. The issue before us is whether Cardona’s appeal is barred by the waiver contained in his plea agreement. The government urges us to enforce that waiver, as, “under ordinary circumstances, a knowing, voluntary waiver of the right to appeal from a sentence, contained in a plea agreement, ought to be enforced.” United States v. Teeter, 257 F.3d 14, 23 (1st Cir.2001) (footnote omitted). In determining whether to enforce the waiver, we make three inquiries. First, we" }, { "docid": "23642157", "title": "", "text": "contractual in nature and subject to contract-law standards.” Baker v. United States, 781 F.2d 85, 90 (6th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986) (citations and quotations omitted). “In determining whether a plea agreement has been broken, courts look to ‘what was reasonably understood by [the defendant] when he entered his plea of guilty.’ ” United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979) (quoting United States v. Crusco, 536 F.2d 21, 27 (3d Cir.1976)). Frederick H. Mandell reasonably understood that he would be sentenced at offense level 20, not at some other level which happened to overlap level 20 in terms of its periods of incarceration. The government does not have the benefit of a fortuity due to an overlap when the terms of the agreement focus on the offense level, not the range. See United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir.), cert. denied, 479 U.S. 819, 107 S.Ct. 80, 93 L.Ed.2d 35 (1986) (government will be held to the literal terms of the plea agreement). While the plea agreement discusses the potential range of Frederick H. Mandell’s sentence, the more specific terms of the stipulation attached to the plea agreement govern the method by which a sentence falling within that range was to be determined. A breached plea agreement may be remedied by either specific performance of the agreement or by allowing the defendant to withdraw the plea. Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). In this case, the agreement itself provides the remedy of withdrawal of the plea. Therefore, the option of specific performance entitles Frederick H. Mandell to the same remedy as withdrawal. It does not provide Frederick H. Mandell with the right to have the sentence determined at level 20 under the specific performance theory. Therefore, under the terms of the plea agreement, the case will be remanded to offer Frederick H. Mandell the opportunity to withdraw the plea. There is a second, independent reason for our remand for resentencing. Frederick H. Mandell argues that if" }, { "docid": "2292586", "title": "", "text": "government and that the defendant understood that he would not be allowed to withdraw his guilty plea once entered. The district court accepted the defendant’s plea. A presentence report was subsequently prepared which arrived at an applicable sentencing range that was higher than that reached by the parties in the plea agreement. The presentence report calculated the defendant’s offense level as 13 and his criminal history category as VI, resulting in an applicable range of 33-41 months. The defendant filed objections to these calculations. The district court granted several of his objections, reducing his criminal history category to V, but denied his objection to the calculation of his offense level which characterized him as an organizer resulting in the addition of two levels to his computation. At sentencing, the district court rejected the parties’ recommended sentence in favor of the calculations contained in the presentence report and sentenced the defendant to 37 months on Counts 1-3 (to run concurrently with each other), 5 years on'Count 4 (to run concurrently to Counts 1-3), and 5 years on Counts 5-8 (to run concurrently with each other but consecutive to Counts 1-4). The defendant thereby received a sentence of 13 years and 1 month, which was above the 4 year 3 month total recommended by the government in the plea agreement but well within the sentencing ranges provided for in 18 U.S.C. § 1343 and § 2314. DeCicco raises two claims on appeal. First, he alleges that the district court failed to comply with the requirements of Rule 11 by imposing a sentence materially different from the terms of the plea agreement without advising him at the time of the plea that he would not be allowed to withdraw his plea if the court rejected the plea agreement. Second, he contends that the trial court erred in computing his offense. level by adding two points for his role in the offense as an organizer. We address these claims in turn. A. Fed.R.Crim.P. 11 contains the procedures governing plea agreements. Subsection (e)(1)(B) permits the government to agree to make a sentencing recommendation to the" }, { "docid": "23642150", "title": "", "text": "she met with the buyer/special agent and gave him 480.5 grams of marijuana and 492.9 grams of hashish, or about a pound of each substance, for delivery to Cincinnati. Again, the drugs were intended to be samples of the substances which they could supply. Next, on June 29, Joseph J. Mandell trav-elled to Cincinnati from Kentucky to meet the buyer/special agent and further discuss the future delivery of up to 2,000 pounds of marijuana from the Mandells. On July 6, the Mandells sent David La-tham from New York to Cincinnati where he delivered approximately 68,009 grams or 149.93 pounds of marijuana to the buyer/special agent. That same day, the Man-dells and David Latham were indicted in the Southern District of Ohio for conspiring to distribute a total of 5,000 pounds of marijuana, in violation of 21 U.S.C. § 846. Subsequently, Frederick H.- Mandell entered into a plea agreement under which the United States moved to dismiss the indictment and he pled guilty to a superseding information alleging that he, Joseph J. Mandell and Reuven Mandell distributed 68,553.8 grams or 151.14 pounds of marijuana and 492.9 grams or 1.09 pounds of hashish in the Southern District of Ohio. The plea agreement between the United States and Frederick H. Mandell stated that if the district court refused to accept the agreement or indicated its intention to sentence Frederick H. Mandell outside the calculated 33 to 87 month range, Frederick H. Mandell would be permitted to withdraw his guilty plea. In an attached stipulation to the plea agreement, it was agreed that the base level for Frederick H. Mandell’s offense was 22 and that because of his acceptance of responsibility for his actions, his base level would be reduced by two points to level 20. The stipulation also stated that Frederick H. Mandell could withdraw his guilty plea if the Court departed from level 20 or departed from the otherwise applicable criminal history category. Under the sentencing guidelines, for a base offense level of 20, the minimum sentence, for a criminal history category of I, is 33 months, or two years and nine" }, { "docid": "21548231", "title": "", "text": "using the reserve amounts listed in item 33 of DEA form 7 to determine total scale of drug quantity and that further investigation with agents of the DEA had substantiated the method of calculation used by the probation officer, who had prepared the presentence report and had used the amount taken from item 25 of DEA Form 7. The guideline range calculated in the presentence report was 33-41 months based on an offense level of 18 for conspiracy to distribute and possess with intent to distribute 100 grams or more of cocaine and defendant’s criminal history category of III. At the sentencing hearing on September 5, 1989, the district court rejected the plea agreement and sentenced defendant to 33 months, accepting the guideline range of 33-41 months established by the presen-tence report based on a drug quantity of 100 grams or more, and rejecting the guideline range implicit in the plea agreement of 27-33 months based on a drug quantity of 99 grams. The district court refused to consider a two-level reduction for acceptance of responsibility under Guideline § 3E 1.1 after it rejected the plea agreement. Defendant timely filed this appeal. II. This court must decide whether the district court erred in rejecting the plea agreement and imposing a sentence higher than the one assumed in the plea agreement because the drug quantity stipulated to in the plea agreement was erroneous. Defendant argues that there is no authority for the district court’s actions. Defendant contends that once a trial court unqualifiedly accepts a plea agreement, it becomes bound by the agreement, and, absent fraud, cannot later reject the agreement, relying on United States v. Holman, 728 F.2d 809 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984). In Holman, this court found that it was inappropriate to reject a plea agreement based on information obtained in the presentence report about defendant’s criminal history. Id. at 813. The government agrees that it was error for the district court to reject the plea agreement and recommends that the case be remanded to the district court for" }, { "docid": "22795429", "title": "", "text": "mail fraud and failure to appear charges on September 22,1993. In the plea agreement, Buchanan waived the right to appeal his sentence, so long as the sentence was within the applicable United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range. The waiver would not apply if there was a departure outside the Guidelines range. During the September 1993 plea hearing, the district court judge reviewed the charges brought against Buchanan and asked Buchanan whether he understood the contents of his plea agreement. He answered that he understood the plea agreement and the consequences of his guilty plea. The prosecutor read the entire plea agreement out loud in open court. On January 4, 1994, Buchanan appeared for sentencing. At that hearing, Buchanan orally moved to withdraw his guilty plea on the ground that his original attorneys had not fully informed him of unfavorable stipulations in the plea agreement. Buchanan specifically complained about the provision in the plea agreement that barred arguments at sentencing for downward departures. During the discussions on that issue, the district court stated that Buchanan “could appeal the sentencing findings.” At the close of the hearing, the court delayed sentencing to allow Buchanan to file a motion to withdraw. Buchanan did not file such a motion; instead, on January 20,1994, the parties filed a modification to the plea agreement that permitted both parties to argue for a departure. As a result of the modification, Buchanan agreed to drop his ineffective assistance of counsel claim. Buchanan reappeared for sentencing on January 21, 1994. At that hearing, despite the waiver clause in Buchanan’s plea agreement, the district court judge explicitly informed Buchanan that he had a right to appeal his sentence. The judge set the base offense level at thirteen and placed Buchanan in criminal history category III. The resulting imprisonment range was 18-24 months. The district court imposed a seventeen-month sentence on the mail fraud charge and a consecutive one-month sentence on the failure to appear charge. II. DISCUSSION On appeal, Buchanan argues that the district court erred in calculating his criminal history score. Before we reach the merits of" }, { "docid": "23642158", "title": "", "text": "plea agreement). While the plea agreement discusses the potential range of Frederick H. Mandell’s sentence, the more specific terms of the stipulation attached to the plea agreement govern the method by which a sentence falling within that range was to be determined. A breached plea agreement may be remedied by either specific performance of the agreement or by allowing the defendant to withdraw the plea. Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). In this case, the agreement itself provides the remedy of withdrawal of the plea. Therefore, the option of specific performance entitles Frederick H. Mandell to the same remedy as withdrawal. It does not provide Frederick H. Mandell with the right to have the sentence determined at level 20 under the specific performance theory. Therefore, under the terms of the plea agreement, the case will be remanded to offer Frederick H. Mandell the opportunity to withdraw the plea. There is a second, independent reason for our remand for resentencing. Frederick H. Mandell argues that if a defendant alleges inaccuracies in a presen-tencing report and the court fails either to make findings regarding those allegations in dispute or make a determination that the disputed information will not be used in sentencing, resentencing is required under Fed.R.Crim.P. 32(c)(3)(D). Rule 32(c)(3)(D) provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. Fed.R.Crim.P. 32(c)(3)(D). A defendant demanding a resentencing due to a violation of Rule 32(c)(3)(D) needs only to show that “(1) allegations of inaccuracy were before the sentencing court" }, { "docid": "15278420", "title": "", "text": "not a career offender, based upon the convictions that we know of.\" (Emphasis added.) After Bennett said he had no further questions about the plea agreement, the court found the agreement to be in proper form, accepted the agreement, and entered it into the record. The court ordered the preparation of the PIR. In compiling the PIR, Probation discovered that Bennett had committed an additional violent felony, which the plea agreement failed to include. The additional offense categorized Bennett as a career offender. Based on his career offender status, Probation concluded that Bennett had an offense level of thirty-two and a criminal history category of six. Probation adjusted Bennett’s Guidelines range pursuant to section 5G1.1(c)(1) of the Sentencing Guidelines to 210 to 240 months. The adjusted sentencing range was greater than the range set forth in the plea agreement, which was seventy-seven to ninety-six months, based on an offense level of twenty-four and a criminal history category of four. Both the government and Bennett objected to the career offender finding in light of the stipulation in the plea agreement that Bennett was not a career offender. They claimed they were unaware of the additional conviction when they entered into the agreement. The government, however, conceded “that the stipulation in the Plea Agreement [was] not binding on the Court.” In contrast, Bennett argued that he expected to be sentenced pursuant to his plea agreement and “that his expectation should be honored.” Bennett then moved the district court for leave to withdraw his guilty plea. Because he had entered into the plea agreement anticipating that he would not be sentenced as a career offender, Bennett argued that, owing to the greater sentence he would now receive, he did not knowingly and voluntarily plead guilty. The district court denied Bennett’s motion. The court found that Bennett admitted during his plea hearing that a factual basis for his guilty plea existed and that Bennett realized the court was not bound by the terms of the plea agreement. At Bennett’s sentencing hearing, the district court considered each party’s objection to the PIR concerning Bennett’s career" }, { "docid": "23631707", "title": "", "text": "RILEY, Circuit Judge. Manuel Villareal-Amarillas (Villareal-Amarillas) and Juan Gonzalez (Gonzalez) each pled guilty to conspiracy to distribute in excess of 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The district court sentenced Villareal-Amarillas to 328 months’ imprisonment and Gonzalez to 151 months’ imprisonment. The government appeals Villareal-Amarillas’s and Gonzalez’s sentences, arguing the district court erred in its drug quantity findings and its failure to rule on the credibility of the government’s witnesses. Villareal-Amarillas cross-appeals his sentence. His counsel moved to withdraw and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Villareal-Amarillas filed a pro se supplemental brief. For the reasons stated below, we affirm in part and reverse in part. I. BACKGROUND Villareal-Amarillas pled guilty pursuant to a written plea agreement, stipulating to a drug quantity in excess of 500 grams of methamphetamine. Also in the plea agreement, Villareal-Amarillas and the government agreed to dispute the specific drug quantity, above 500 grams, at the time of sentencing. Gonzalez pled guilty without a plea agreement, and he admitted during his plea colloquy to a drug quantity in excess of 500 grams of methamphetamine. The United States Probation Office prepared a presentence investigation report (PSR) for both Villareal-Amarillas and Gonzalez. The PSRs attributed base offense levels of 38 to each man, representing a relevant drug quantity in excess of fifteen kilograms of methamphetamine. Villareal-Amarillas and Gonzalez each raised a timely objection to his respective PSR’s drug quantity calculation. Due to Villareal-Amarillas’s career offender status, his PSR assigned him a criminal history category of VI. The PSR also recommended a four-level enhancement for Villareal-Amarillas’s leadership role in the offense, a two-level enhancement for the possession of a firearm in connection with the offense, and a three-level reduction for acceptance of responsibility, resulting in a total offense level of 41. Based on a total offense level of 41 and a criminal history category of VI, the PSR calculated a sentencing range under the' United States Sentencing Guidelines (Guidelines) of 360 months’ to life imprisonment. Villareal-Amarillas objected to" }, { "docid": "23642152", "title": "", "text": "months, and the maximum sentence, for a criminal history category of VI, is 87 months, or 12 years and 3 months. On September 27, 1988, the district court accepted the agreement and Frederick H. Mandell’s guilty plea. On February 20, 1989, Frederick H. Mandell was sentenced to 5 years and 10 months in prison and three to five years of supervised release. Prior to sentencing, an addendum to the presentencing investigation report was submitted to the district court by the probation officer. The addendum indicated that, based on a co-conspirator’s statements, Frederick H. Mandell was involved in the distribution of an additional 73 kilograms of marijuana. Adoption of the findings in the presentence report would result in Frederick H. Mandeb's sentencing level increasing to a level 26 because of the increased quantity of drugs. See U.S.S.G. § 2D1.1(a)(3) (incorporating § 2D1.1(c)(9)). Frederick H. Mandell’s counsel objected to the use of the allegations in the adden dum and reiterated that the plea agreement stated that Frederick H. Mandeb's base offense level was to be 20 after the acceptance of responsibility deduction was made. The district court did not state whether the new allegations regarding Frederick H. Mandell’s marijuana distribution activities would be taken into account in determining the sentence, but reminded Frederick H. Mandeb’s counsel that the plea agreement allowed a sentence within the 33-87 month range. The district court then adopted the base offense level of 26 under U.S.S.G. § 2Dl.l(a)(3), raised it three levels to level 29 based on a finding that Frederick H. Mandeb was an organizer and leader in the criminal activity under U.S.S.G. § 3Bl.l(b), and lowered it two levels pursuant to U.S. S.G. § 3El.l(a) to level'27 because of Frederick H. Mandeb’s acceptance of responsibility. The district court found the guideline range for imprisonment to be from 70-87 months based on an offense level of 27 and a criminal history category of I. Counsel for the defendant did not raise at this time the plea agreement’s provision allowing Frederick H. Mandeb to withdraw his plea of guilt if the findings placed him in a criminal" }, { "docid": "23331873", "title": "", "text": "violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years.... 18 U.S.C. § 924(e). Section 924(e), which does not expressly delineate a maximum term of imprisonment, has been construed to allow a life sentence. United States v. Mack, 229 F.3d 226, 229 n. 4 (3d Cir.2000) (citing Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994)). . The PSI stated \"based on a total offense level of 30 and a criminal history category of VI, the guideline range for imprisonment is 168 to 210 months. However, since the mandatory minimum term of imprisonment is 180 months, the effective guideline range is 180 to 210 months.” PSI at ¶ 51 (emphasis in original). . In the alternative, Powell argues that he should be allowed to withdraw his guilty plea. . Federal Rule of Criminal Procedure 11(h) provides: (h) Harmless Error. Any variance from the procedures required by this rule which does not effect substantial rights shall be disregarded. Fed.R.Crim.P. 11(h). . Powell also argues that we should vacate his sentence based on our decision in United States v. Gilchrist, 130 F.3d 1131, 1133 (3d Cir.1997), where we vacated the defendant’s sentence because the district court caused a breach of the defendant's guilty plea agreement. There, however, the parties entered into a guilty plea agreement pursuant to Rule 11(e)(1)(C), which is binding on the court once accepted. Because there is no indication in the record before us that the parties entered into the guilty plea agreement here pursuant to Rule 11(e)(1)(C), we find that this assertion is without merit, and need not be addressed. Similarly, we need not address Powell's Apprendi claim. Powell’s sentence was enhanced based upon prior convictions that he conceded in his plea agreement. Accordingly, Apprendi does not apply. See Apprendi, 120 S.Ct. at 2362-63 (\"other than the" }, { "docid": "23642151", "title": "", "text": "distributed 68,553.8 grams or 151.14 pounds of marijuana and 492.9 grams or 1.09 pounds of hashish in the Southern District of Ohio. The plea agreement between the United States and Frederick H. Mandell stated that if the district court refused to accept the agreement or indicated its intention to sentence Frederick H. Mandell outside the calculated 33 to 87 month range, Frederick H. Mandell would be permitted to withdraw his guilty plea. In an attached stipulation to the plea agreement, it was agreed that the base level for Frederick H. Mandell’s offense was 22 and that because of his acceptance of responsibility for his actions, his base level would be reduced by two points to level 20. The stipulation also stated that Frederick H. Mandell could withdraw his guilty plea if the Court departed from level 20 or departed from the otherwise applicable criminal history category. Under the sentencing guidelines, for a base offense level of 20, the minimum sentence, for a criminal history category of I, is 33 months, or two years and nine months, and the maximum sentence, for a criminal history category of VI, is 87 months, or 12 years and 3 months. On September 27, 1988, the district court accepted the agreement and Frederick H. Mandell’s guilty plea. On February 20, 1989, Frederick H. Mandell was sentenced to 5 years and 10 months in prison and three to five years of supervised release. Prior to sentencing, an addendum to the presentencing investigation report was submitted to the district court by the probation officer. The addendum indicated that, based on a co-conspirator’s statements, Frederick H. Mandell was involved in the distribution of an additional 73 kilograms of marijuana. Adoption of the findings in the presentence report would result in Frederick H. Mandeb's sentencing level increasing to a level 26 because of the increased quantity of drugs. See U.S.S.G. § 2D1.1(a)(3) (incorporating § 2D1.1(c)(9)). Frederick H. Mandell’s counsel objected to the use of the allegations in the adden dum and reiterated that the plea agreement stated that Frederick H. Mandeb's base offense level was to be 20 after" }, { "docid": "23642156", "title": "", "text": "to both the sentencing guidelines and the plea agreement. The United States claims that the district court did not err because Frederick H. Mandeb was sentenced to a term of incarceration falling within the range provided for in the plea agreement. The government makes the tortured argument that by stating that the offense level should be 20, they really were saying that the sentence could be anywhere from 33 to 87 months. Consequently, because Frederick H. Man-deb was sentenced to 5 years and 10 months in prison, there was no breach of the agreement. This argument is just contrary to the signed plea agreement and stipulation. The stipulation, which was incorporated into the plea agreement and is therefore material in interpreting the plea bargain, clearly states that Frederick H. Mandeb’s offense level would be no higher than 20. It was not 20. Even though the actual sentence fell within the permissible range stated in the plea agreement, it was not arrived at by the method agreed upon in the stipulation. “A plea bargain itself is contractual in nature and subject to contract-law standards.” Baker v. United States, 781 F.2d 85, 90 (6th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986) (citations and quotations omitted). “In determining whether a plea agreement has been broken, courts look to ‘what was reasonably understood by [the defendant] when he entered his plea of guilty.’ ” United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979) (quoting United States v. Crusco, 536 F.2d 21, 27 (3d Cir.1976)). Frederick H. Mandell reasonably understood that he would be sentenced at offense level 20, not at some other level which happened to overlap level 20 in terms of its periods of incarceration. The government does not have the benefit of a fortuity due to an overlap when the terms of the agreement focus on the offense level, not the range. See United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir.), cert. denied, 479 U.S. 819, 107 S.Ct. 80, 93 L.Ed.2d 35 (1986) (government will be held to the literal terms of the" }, { "docid": "23642153", "title": "", "text": "the acceptance of responsibility deduction was made. The district court did not state whether the new allegations regarding Frederick H. Mandell’s marijuana distribution activities would be taken into account in determining the sentence, but reminded Frederick H. Mandeb’s counsel that the plea agreement allowed a sentence within the 33-87 month range. The district court then adopted the base offense level of 26 under U.S.S.G. § 2Dl.l(a)(3), raised it three levels to level 29 based on a finding that Frederick H. Mandeb was an organizer and leader in the criminal activity under U.S.S.G. § 3Bl.l(b), and lowered it two levels pursuant to U.S. S.G. § 3El.l(a) to level'27 because of Frederick H. Mandeb’s acceptance of responsibility. The district court found the guideline range for imprisonment to be from 70-87 months based on an offense level of 27 and a criminal history category of I. Counsel for the defendant did not raise at this time the plea agreement’s provision allowing Frederick H. Mandeb to withdraw his plea of guilt if the findings placed him in a criminal offense level above level 20. Frederick H. Mandeb now objects to the district court’s action. We remand for re-sentencing for two separate reasons. The confusion in this case stems from the attempt to coordinate the plea agreement’s discussion of Frederick H. Mandeb’s range of possible incarceration under the sentencing guidelines with the attached stipulation’s discussion of Frederick H. Mandeb’s criminal offense level as defined by the guidelines. It is clear that in this case, the process and criminal offense level set forth in the stipulation produced the sentencing range listed in the plea agreement but not the offense level arrived at by the district court in imposing a sentence that happened to fab within the sentencing range agreed to in the plea agreement. Frederick H. Mandeb argues that the district court erred by failing to conform with the terms of the plea agreement. Specifically, Frederick H. Mandeb points to the provision in the stipulation attached to the plea agreement stating that Frederick H. Mandeb could withdraw his guilty plea if the court departed from the" }, { "docid": "23642154", "title": "", "text": "offense level above level 20. Frederick H. Mandeb now objects to the district court’s action. We remand for re-sentencing for two separate reasons. The confusion in this case stems from the attempt to coordinate the plea agreement’s discussion of Frederick H. Mandeb’s range of possible incarceration under the sentencing guidelines with the attached stipulation’s discussion of Frederick H. Mandeb’s criminal offense level as defined by the guidelines. It is clear that in this case, the process and criminal offense level set forth in the stipulation produced the sentencing range listed in the plea agreement but not the offense level arrived at by the district court in imposing a sentence that happened to fab within the sentencing range agreed to in the plea agreement. Frederick H. Mandeb argues that the district court erred by failing to conform with the terms of the plea agreement. Specifically, Frederick H. Mandeb points to the provision in the stipulation attached to the plea agreement stating that Frederick H. Mandeb could withdraw his guilty plea if the court departed from the offense level of 20. Frederick H. Mandeb asserts that the district court violated the express terms of the plea agreement and the stipulation by: 1) sentencing him based on an offense history of 27 as opposed to the agreed upon level of 20, and 2) failing to give him the opportunity to withdraw the plea. In United States v. Holman, 728 F.2d 809, 813 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984), we stated that once the district court accepts the plea agreement, it is bound by the bargain. In Holman, the Court stated that the district court’s failure to indicate the status of the plea agreement would be construed as an acceptance of the agreement. Holman, 728 F.2d at 812. Frederick H. Mandeb erroneously asserts that if he was sentenced under level 20, then his sentence would be 33-41 months. Actually, depending upon the applicable criminal history category, at an offense level of 20, he could have a sentence within the range of 33 and 87 months according" } ]

[ { "docid": "205882", "title": "", "text": "Rule 16(b) of the Federal Rules of Criminal Procedure which expressly exempts from discovery reports, memoranda, or other internal government documents made by government agents in connection with the investigation and prosecution of the case. . . . It is this rule, rather than any general privilege applicable in the civil discovery context, that has posed the obstacle to criminal defendants seeking to probe the basis of their individual prosecution. We have thus examined the range of recognized evidentiary privileges and the authorities relied upon by the Department of Justice, and we have concluded simply that no recognized privilege exists such as would protect the withheld portions of the Manual and the FOT Guidelines from disclosure in the civil discovery context. Hence, the district court was correct in holding that Exemption 5 was inapplicable to these documents. D. Appellant’s (b)(7) Claim Initially the Justice Department relied on one exemption — Exemption 5 — in denying appellee Jordan’s request for documents. In the District Court, the Department expanded its defense, relying on two exemptions — Exemptions 2 and 5. In its initial appellate briefs in this court, the Department continued its reliance on only these two exemptions,-plus a reference to § 552(a)(2). Astonishingly, however, in a supplemental memorandum filed one month prior to oral argument before this en banc court, the Department invoked for the first time Exemption 7 ex proprio vigore. That provision applies to (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings In our view, this Exemption 7 claim was not timely made by the Department, and consequently there is no need to consider its merits. It is basic that the FOIA establishes a statutory presumption that all federal records are available to “any person.” This presumption is rebutted only by evidence presented by an agency that the item sought is exempt from disclosure under one of the nine enumerated exemptions. The agency bears the full burden of proof when an exemption is claimed to apply. To meet this burden the agency" } ]

[ { "docid": "22050455", "title": "", "text": "According to Strieker, the release of such information would allow hostile intelligence organizations to neutralize the use of those methods, thereby causing a concomitant loss of intelligence. On November 14, 1990, the district court ordered the government to give to plaintiff information from three of the documents subject to in camera review. This included the information at issue here—the third full paragraph on page 2 of the December 22, 1961 memo. The CIA moved for reconsideration of the portion of the court’s order regarding the redacted paragraph and submitted an in camera declaration by Strieker, which explained in further detail the nature of the information withheld. On February 1, 1991, the district court granted the CIA’s motion for reconsideration, but on reconsideration, the court affirmed its earlier ruling, finding that “the movant’s assertion that disclosure will ‘reveal its sources and methods’ in a matter now approximately thirty years old is without substance and is, indeed, the height of bureaucratic disingenuousness.” The CIA appeals from this order. A. FOIA Exemption 3 The FOIA gives members of the public access to documents held in government files. Every federal agency “upon any request for records which ... reasonably describes such records” must make the records “promptly available to any person.” 5 U.S.C. § 552(a)(3). Nine categories of documents are exempted from this broad disclosure requirement. Exemption 3 permits a federal agency to withhold matters that are: (3) specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. 5 U.S.C. § 552(b)(3). Two questions need to be answered in determining whether Exemption 3 applies in a particular situation. CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 1886, 85 L.Ed.2d 173 (1985). First, does the statute constitute a “statutory exemption to disclosure within the meaning of Exemption 3”? Second, is the requested information “included within” the statute’s “protection”? Id. The first question has" }, { "docid": "14976920", "title": "", "text": "documents provided by Gould. The Court will consider the application of each Exemption separately. Exemption 3 The disclosure requirements of the FOIA do not apply to documents “specifically exempted from disclosure by statute ... provided that such statute (A) requires that matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters withheld.” 5 U.S.C. § 552(b)(3) (emphasis added). The DOC asserts that all of the documents withheld in this case are exempted from disclosure by Section 12(c) of the Export Administration Act, which provides in relevant part that “information obtained for the purpose of consideration of, or concerning, license applications under this Act ... shall be withheld from public disclosure unless the release of such information is determined by the Secretary to be in the national interest.” 50 U.S.C.App. § 2411(c)(1). The Court holds that Section 12(c) clearly meets the criteria of Exemption 3 by specifically describing the type of information within the DOC’s possession which will be withheld — license applications and related materials. In so holding, the Court concurs with the Ninth Circuit’s decision in Lessner v. United States Department of Commerce, 827 F.2d 1333 (1987), and finds that the decision relied on by the plaintiff, American Jewish Congress v. Kreps, 574 F.2d 624, 632 (D.C.Cir.1978), was nullified by Congresses’ later amendment of Section 12(c). Because all of the documents withheld in this case were provided to the DOC in connection with DTG’s license application, they are protected from disclosure under Section 12(c) of the Export Administration Act and, therefore, fall within FOIA Exemption 3. Although Exemption 3 supports the DOC’s nondisclosure of all of the documents responsive to the plaintiff’s FOIA request, the Court has also considered the applicability of the other exemptions relied upon by the DOC in withholding the documents. Exemption h This FOIA exemption excludes from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Although Danver has apparently waived any" }, { "docid": "22952020", "title": "", "text": "to direct your requests to the appropriate field offices.” Id. By letter dated December 12, 2000, the FBI informed plaintiff that it was resending the disclosed documents to him because the April 19, 2000 mailing that had been sent to the address that appeared on the last correspondence it had received from him before the first mailing had been returned and marked “because it was refused.” Id., Exhibit G. The FBI withheld information under FOIA exemptions 3, 7(C) and 7(D). Plaintiff does not challenge the FBI’s justification for withholding information under the latter two exemptions and therefore concedes the issue as to the 89 released pages. Plaintiff does challenge the FBI’s withholding of entire documents and the FBI’s decision not to conduct searches at its field offices. Plaintiffs administrative appeal of the FBI’s actions concerning his FOIA request was denied on March 2, 2001, as untimely. Id., Exhibit J. (a.) Record Segregability The FBI withheld 115 pages of responsive records in their entirety under FOIA exemptions 3 and 7. It avers that “[e]very effort was made to provide plaintiff with all reasonably segregable portions of the records requested and no reasonably segregable non-exempt portions have been withheld. All information withheld is exempt from disclosure either pursuant to a FOIA exemption, because it is so intertwined with protected material that segregation is not possible, or because its release would identify the underlying protected material.” Hodes Decl. ¶ 20. Invoking exemption 3, the FBI avers that it withheld the names of individuals subpoenaed to testify before a grand jury and their grand jury testimony. Hodes Decl. ¶¶ 24-25. Exemption 3 covers records that are “specifically exempted from disclosure by statute ...” provided that such statute either “(A) [requires withholding] in such a manner as to leave no discretion on the issue,” or “(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3); see also Senate of the Commonwealth of Puerto Rico v. Dep’t of Justice, 823 F.2d 574, 582 (D.C.Cir.1987). The FBI invoked this FOIA exemption in conjunction with Rule 6(e) of" }, { "docid": "22812977", "title": "", "text": "of material fact regarding his theory of an arms eoverup. Therefore,, the district court did not err in. adopting the magistrate judge’s recommendation on this point. 4. Classification in Anticipation of Litigation Finally, McDonnell urges that the Government classified the withheld information in anticipation of litigation, but he points to no evidence to support this argument. Even if this is so, an agency may classify or reclassify information after it has received a request for it under the FOIA if that classification meets the requirements of Executive Order 12,356 and is accomplished personally and on a document-specific basis by an official with original Top Secret classification authority. Exec.Order 12,356, 47 Fed.Reg. 14874 § 1.6(d) (1982). We have already determined that the five withheld documents identified were properly classified under Executive Order 12,356 by Whaley, an official holding the requisite classification authority. Accordingly, McDonnell’s argument that these documents should be released because they were classified in anticipation of litigation has no merit. B. Exemption 3 — Statutory Exception Under Exemption 3, an agency may withhold matters “specifically exempted from disclosure by statute,” other than the FOIA, if that statute either “(A) requires that the matter be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C.A. § 552(b)(3); see American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978) (statute falls within Exemption 3 if it satisfies either one of disjunctive requirements lettered “(A)” and “(B)”). Exemption 3 differs from the other FÓIA exemptions in that its applicability depends less on the detailed factual contents of specific documents. Association of Retired R.R. Workers v. United States R.R. Retirement Bd., 830 F.2d 331, 336 (D.C.Cir.1987). Instead, the sole issues for decision in determining the applicability of Exemption 3 to a particular set of documents are the existence of either type of relevant statute and the inclusion of withheld material within the statute’s coverage. Id. The Government invoked Exemption 3 to preclude disclosure of requested material under two." }, { "docid": "5729896", "title": "", "text": "memorandum, statement of material facts, and declarations supplied by HHS, EOUSA and NRC, the Court finds the declarants’ descriptions of the withheld information too sweeping and vague to permit an assessment of the asserted exemptions. Therefore, summary judgment is denied without prejudice to reconsideration upon defendants’ filing of Vaughn indexes or some equivalent documents that would reasonably describe the records at issue and explain with specificity how the claimed exemptions apply to the withheld material. Consequently, the Court will defer consideration of plaintiffs challenge to HHS’s search for responsive records. See PL’s Opp’g Facts ¶ 6. 2. DHS Records (i) USCIS’s Withholdings USCIS, as the custodian of DHS’s Alien Files, produced a considerable volume of material, but withheld some information under FOIA exemptions, 3, 5, 6, 7(C), and 7(E). Defs.’ Mem. at 32; see Welsh Decl., Vaughn Index [Dkt. # 39-7, EOF pp. 25- ■ 64]. a.) FOIA Exemption S Exemption 3 authorizes the government to withhold information that is “specifically exempted from disclosure by statute” so long as (1) the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or” (2) “establishes particular criteria for withholding or refers to particular types of matters to be withheld; and if enacted after the date of enactment of the OPEN FOIA Act of 2009 [enacted Oct. 28, 2009], specifically cites to this paragraph.” 5 U.S.C. § 552(b)(3). It is “beyond dispute” that 26 U.S.C. § 6103 “is the sort of nondisclosure statute contemplated by FOIA Exemption 3,” which “leave[s] the IRS with no discretion to reveal those matters publicly.” Tax Analysts v. IRS, 117 F.3d 607, 611 (D.C.Cir.1997). In addition, § 6103 provides that tax returns and return information “shall be confidential” and prohibits any “officer or employee of the United States” from disclosing such information “except as authorized by this title.” 26 U.S.C. § 6103(a). See Judicial Watch, Inc. v. Soc. Sec. Admin., 701 F.3d 379, 380 (D.C.Cir.2012) (affirming Social Security Administration’s exemption 3 invocation to tax return information). USCIS properly applied exemption 3 to “federal income tax" }, { "docid": "21844965", "title": "", "text": "statute, provided that the statute in question (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. Section 552(b)(7)(E) exempts investigatory records complied for law enforcement purposes to the extent that production of such records would disclose investigative techniques and procedures. . \"In light of this overwhelming emphasis upon disclosure, it is anomalous but obviously inevitable that the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation of the concealed information.” . This circuit reaffirmed its support of the \"Vaughn Index\" as the initial FOIA enforcement tool in Lame I. See Lame, 654 F.2d at 921 citing Ferri v. Bell, 645 F.2d 1213, 1222 (3d Cir.1981), reh. on other grounds, 671 F.2d 769 (3d Cir. 1982); Coastal States Gas Corp. v. Dept. of Energy, 644 F.2d 969, 972 (3d Cir.1981). . Lame objected below that the government may not raise on remand any exemption that it did not claim the first time that this case was before the district court. We are, however, persuaded by the district court’s analysis of Jordan v. United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978) wherein the failure to assert an exemption applying to “investigatory records compiled for law enforcement purposes\" until appeal was deemed waived. The Jordan court believed that an agency would invoke a new exemption before the court of appeals for one of three reasons: first, it was attempting to gain a tactical advantage; second, a substantial change in the facts of the case or the applicable law occurred in the interim; and third, the agency had an \"after thought.\" Id. at 780. In the present case, the district court reasoned that Jordan was concerned primarily with due process considerations of raising on appeal exemptions not raised originally before the trial court. It distinguished Jordan from the case at bar because the government raised the new exemptions on remand and" }, { "docid": "23279532", "title": "", "text": "exemptions to FOIA. Vaughn, 484 F.2d at 827. When, as is the case here, a claimed FOIA exemption is based on a general exclusion, such as Exemption 7(A)’s criminal investigation exclusion, which is dependent on the category of the requested records rather than the individual subject matters contained within each document, a Vaughn index is futile. Church of Scientology v. IRS, 792 F.2d 146, 152 (D.C.Cir.1986) (Scalia, J.); see Campbell, 682 F.2d at 265 (government is required to provide affidavits but not Vaughn index to establish applicability of Exemption 7(A)). Moreover, a Vaughn index of the documents here would defeat the purpose of Exemption 7(A). It would aid Lewis in discovering the exact nature of the documents supporting the government’s case against him earlier than he otherwise would or should. “FOIA was not intended to function as a private discovery tool, ... [and] we cannot see how FOIA’s purposes would be defeated by deferring disclosure until after the Government has ‘presented its case in court.’ ” Robbins Tire & Rubber Co., 437 U.S. at 242, 98 S.Ct. at 2327 (emphasis in original). AFFIRMED. . The relevant portion of Lewis’ first letter requested “copies of any and all documents, interoffice memos, papers, or reports which bear [his] name, and are relative to the criminal investigation which the I.R.S. has commenced concerning [him].” (Emphasis added.) The relevant portion of Lewis’ second letter requested all documents which related to him and were \"maintained in [the IRS’s] system of records known as ’Controlled Accounts, open and closed, Criminal Investigation Division.’ ” (Emphasis added.) . 5 U.S.C. §§ 552(b)(3)(B) (Exemption 3) and 552(b)(7)(A) (Exemption 7(A)). Exemption 3 authorizes the nondisclosure of any documents which are \"specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.\" 29 U.S.C. § 552(b)(3). See generally Julian v. United States Dep't of Justice, 806 F.2d 1411 (9th Cir.1986), cert. granted,—U.S.-," }, { "docid": "18268197", "title": "", "text": "next day. In a front page article, the New York Times identified the plaintiff as one of six legislators — five congressmen and one senator — targeted by the two year undercover operation. The Staten Island Advance, which serves the plaintiff’s district, also highlighted the story on February 3 and in subsequent days. Presently before the court are cross-motions for summary judgment and a motion challenging the sufficiency of the Vaughn v. Rosen itemization. The plaintiff claims that release of the tapes is necessary to ensure a fair re-election campaign. Vitaliano Affidavit, paragraph 12. The government avers that exemptions (b)(3) and (b)(7)(A) of the FOIA, 5 U.S.C. § 552(b)(3) & (b)(7)(A), sanction nondisclosure of the tapes. For the reasons set forth below, the court agrees with the government and will enter summary judgment on behalf of the defendants. I. EXEMPTION THREE Exemption three of the FOIA allows a government agency to withhold records that are: Specifically exempted from disclosure by statute, provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. 5 U.S.C. § 552(b)(3). In essence, exemption three permits nondisclosure when another statute expressly commands that documents be withheld from the public. The collateral statute claimed by the government herein is Federal Rule of Criminal Procedure 6(e). This law protects the secrecy of grand jury proceedings. It provides, subject to limited exceptions, that “matters occurring before the grand jury” shall not be disclosed. The defendants argue that on February 5, 1980, a grand jury convened in the Eastern District of New York. The plaintiff is among the objects of the grand jury investigation. In connection with its duties, the grand jury examined the videotapes requested by the plaintiff. Since Rule 6(e) requires that secrecy prevail pursuant to materials presented to the grand jury, the tapes are allegedly exempt from disclosure. The plaintiff maintains that Rule 6(e) only prohibits the disclosure of materials that constitute “matters occurring" }, { "docid": "4995494", "title": "", "text": "Opinion for the Court filed by Chief Judge SENTELLE. SENTELLE, Chief Judge: Pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, the plaintiffs seek to compel the release of documents pertaining to violence they or their loved ones suffered in Guatemala in the 1970s and 1980s. The National Security Agency (“NSA”) and the Central Intelligence Agency (“CIA”) withheld, in whole or in part, certain records responsive to the plaintiffs’ requests under FOIA Exemptions 1 and 3, and the district court upheld the withholdings in granting summary judgment for the agencies. Despite the plaintiffs’ arguments that they are entitled to the documents and that the agencies did not adequately explain why the records should be withheld, we agree with the district court that the withheld documents are exempt from disclosure under FOIA Exemptions 1 and 3, and that the agencies sufficiently detailed the reasons for their nondisclosure. The plaintiffs also challenge the responsiveness of the Department of State (“DOS”) to one of their FOIA requests and the district court’s decision not to view the withheld documents in camera. We affirm the judgment of the district court on these issues as well. I The plaintiffs in this case each independently sought information about past violence in Guatemala from government agencies pursuant- to FOIA. “FOIA mandates broad disclosure of government records to the public, subject to. nine enumerated exemptions.” Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007) (citation omitted). Exemption 1 protects matters “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Exemption 3 covers matters “specifically exempted from disclosure by statute,” provided that such statute leaves no discretion on disclosure or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Id. § 552(b)(3). These exemptions cover not only the content of protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption. Wolf, 473 F.3d" }, { "docid": "16237133", "title": "", "text": "placed by the government upon the evidence, (5) the transactions being investigated, (6) the direction of the investigation, (7) government strategy, (8) confidential informants, (9) the scope and limits of the government’s investigation, (10) prospective new defendants, (11) materials protected by the Jencks Act, (12) attorney work product, (13) the methods of surveillance, (14) subjects of surveillance. The government also fears that disclosure will enable the objects of its investigation to “construct defenses”, and perhaps even tamper with evidence and witnesses. A national security argument is also raised. . The court emphasizes that this does not mean that plaintiffs can routinely undermine the validity of affidavits submitted by FOIA defendants by unsubstantiated suspicions of governmental bad faith. . E. g., see Department of the Air Force v. Rose, supra, which approved the in camera review of “case summaries” as a workable compromise between individual rights and the preservation of public rights to official information. . Although the first 87 pages of the government’s initial brief argue the government’s primary defense, exemption 7(A), they have also raised in passing a claim under exemption 3. Exemption 3 pertains to materials “specifically exempted from disclosure” by statutes other than FOIA. The government asserts that most of the documents at issue constitute “returns” or “return information” pursuant to the newly amended § 6103 of the Internal Revenue Code, 26 U.S.C. § 6103(b)(1) and (2). This amendment, part of the Tax Reform Act of 1976, authorizes the Secretary to deny disclosure of these materials if he determines that disclosure • would seriously impair tax administration. § 6103(c) and § 6103(e)(6). Exemption 3, which has also been recently revised by Congress, applies only where the statute in question mandates withholding of information, and leaves no discretion, or where it “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” While the legislative history of the Tax Reform Act does reveal congressional intention that other types of tax-related documents, covered by § 6110, be exempt from FOIA, there is no express discussion of whether § 6103 is to be treated as an" }, { "docid": "16305135", "title": "", "text": "referred to in the press release; any closing agreement relating to the issues described in the press release; any written correspondence or memoranda of meetings or conversations between the IRS and CBN pertaining to those agreements or the press release; and any renewal, revocation, or modification of any ruling granting tax exempt status to CBN. A few months later, on June 29, 1998, the IRS responded and, citing FOIA Exemption 3, 5 U.S.C. § 552(b)(3), and I.R.C. § 6103, declined to-disclose any of the requested information except the Form 1023 filed on February 2, 1998, and the March 13, 1998 determination letter from the IRS to CBN granting exempt status. On July 20, 1998, Tax Analysts sent a letter to CBN seeking the same information as requested from the IRS, citing I.R.C. § 6104 as the basis for its request. Like the IRS, CBN declined to make available any documents other than the Form 1023 and letter from the IRS granting exempt status. Shortly thereafter, Tax Analysts filed this action against the IRS and CBN seeking, access to the requested records. As a general matter, FOIA provides for the disclosure upon request of government-held records and documents. See 5 U.S.C. § 552. FOIA’s general disclosure rule is subject to nine statutory exceptions, however. See id. § 552(b). The government bears the burden of proving that any requested documents it withholds fall within one of the nine exceptions. See id. § 552(a)(4)(B); Petroleum Info. Corp. v. United States Dep’t of the Interi- or, 976 F.2d 1429,1433 (D.C.Cir.1992). The exemption asserted by the IRS in this case, “Exemption 3,” permits the withholding of government records “specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld....” 5 U.S.C. § 552(b)(3). The I.R.C. explicitly provides for the confidentiality of tax returns and “return information.” I.R.C. § 6103(a), 26 U.S.C. § 6103(a). This court and" }, { "docid": "16305136", "title": "", "text": "seeking, access to the requested records. As a general matter, FOIA provides for the disclosure upon request of government-held records and documents. See 5 U.S.C. § 552. FOIA’s general disclosure rule is subject to nine statutory exceptions, however. See id. § 552(b). The government bears the burden of proving that any requested documents it withholds fall within one of the nine exceptions. See id. § 552(a)(4)(B); Petroleum Info. Corp. v. United States Dep’t of the Interi- or, 976 F.2d 1429,1433 (D.C.Cir.1992). The exemption asserted by the IRS in this case, “Exemption 3,” permits the withholding of government records “specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld....” 5 U.S.C. § 552(b)(3). The I.R.C. explicitly provides for the confidentiality of tax returns and “return information.” I.R.C. § 6103(a), 26 U.S.C. § 6103(a). This court and others have recognized consistently that I.R.C. § 6103(a) is a nondisclosure statute falling within the scope of FOIA Exemption 3. See, e.g., Church of Scientology v. IRS, 484 U.S. 9, II, 108 S.Ct. 271, 98 L.Ed.2d 228 (1987); Lehrfeld v. Richardson, 132 F.3d 1463, 1466 (D.C.Cir.1998); Tax Analysts v. IRS, 117 F.3d 607, 611 (D.C.Cir.1997); Aronson v. IRS, 973 F.2d 962, 964 (1st Cir.1992). I.R.C. § 6104(a)(1)(A), cited by Tax Analysts in its request to CBN, provides for the disclosure of certain documents relating to organizations exempt from tax under I.R.C. § 501(c)(3), like CBN: If an organization described in section 501(c) or (d) is exempt from taxation under section 501(a) for any taxable year, the application filed by the organization with respect to which the Secretary made his determination that such organization was entitled to exemption under section 501(a), together with any papers submitted in support of such application, and any letter or other document issued by the Internal Revenue Service with respect to such application shall be open to public inspection at the" }, { "docid": "4995495", "title": "", "text": "the withheld documents in camera. We affirm the judgment of the district court on these issues as well. I The plaintiffs in this case each independently sought information about past violence in Guatemala from government agencies pursuant- to FOIA. “FOIA mandates broad disclosure of government records to the public, subject to. nine enumerated exemptions.” Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007) (citation omitted). Exemption 1 protects matters “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Exemption 3 covers matters “specifically exempted from disclosure by statute,” provided that such statute leaves no discretion on disclosure or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Id. § 552(b)(3). These exemptions cover not only the content of protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption. Wolf, 473 F.3d at 374. Agency refusal to confirm or deny the existence of records responsive to a request is known as a Glomar response. Id. (citing Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C.Cir.1976), which concerned the existence of records regarding a ship named Hughes Glomar Explorer). As relevant here, plaintiff Meredith Larson submitted a FOIA request to the NSA, seeking documents relating to a violent attack she suffered in Guatemala in 1989, the organization she worked with in Guatemala, and her subsequent visits to the country and meetings with Guatemalan and United States government officials. In response to Larson’s request, the NSA released to her four documents in full and eight documents in part, making redactions pursuant to FOIA Exemptions 1 and 3.. Plaintiff Thomas Henehan, a Maryknoll priest, made a FOIA request of NSA regarding a 1976 plane crash that killed a fellow Maryknoll priest working as a missionary in Guatemala. Henehan requested all documents relating to the crash and the priest’s death, including records about threats to and investigations of the Maryknoll Fathers, copies" }, { "docid": "5273705", "title": "", "text": "reasonably specific detail, [ (b)] demonstrate that the information withheld logically falls within the claimed exemption, and [ (c)] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). While an agency’s affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Services, Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)). But such evidence cannot be comprised of “purely speculative claims about the existence and discoverability of other documents.” Id. B. The Defendant Demonstrates that the Requested Information Falls Within a Recognized FOIA Exemp-tion 1. Exemption 3 In its cross-motion for summary judgment, the defendant asserts that the requested information is exempt from disclosure under Exemption 3 of FOIA. Def.’s Mot. for Summ. J. (“Def.’s Mot.”) at 5. Exemption 3 excludes from disclosure information that is “[specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Thus, to determine if the agency properly withheld information under Exemption 3, the court must ensure first that the statute the agency asserts as the underlying basis for the exemption is recognized as a statute of exemption under FOIA, and second, that the withheld material satisfies the criteria for exemption under that statute. Id.; CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985); Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C.Cir.1990). 2. 50 U.S.C. § 403-3(c)(7) is a Statute of Exemption under FOIA In the instant case, the defendant’s invocation of Exemption 3 rests on 50 U.S.C. § 403-3(c)(7), which provides that the Director of Central Intelligence (“DCI”) shall “protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403-3(c)(7). In an" }, { "docid": "21731404", "title": "", "text": "not previously argue all applicable exemptions. That a deliberate choice had been made with regard to exemptions is shown by the fact that it did advance one. Cf. Carson v. U.S. Dept. of Justice, 631 F.2d 1008, 1015 n. 29 (D.C.Cir.1980) (government raised no exemptions below, relying entirely on agency vs. court records issue); Berry v. Dept. of Justice, 733 F.2d 1343, 1352 n. 13 (9th Cir.1984) (same). We find unpersuasive the reasoning of the Fifth Circuit in support of its decision in the identical situation to allow consideration of newly raised exemptions, Cotner v. United States Parole Commission, 747 F.2d 1016 (5th Cir.1984), and conclude that this ease does not involve “extraordinary circumstances” warranting such consideration, Ryan v. Dept. of Justice, 617 F.2d 781, 792 (D.C. Cir.1980). “The key is that assertion of the exemption originally [must have been] barred by legal doctrine, and only now is available. The exception should not apply when the exemption was available but the government, as the result of a deliberate, tactical decision, simply chose not to assert it. This is ‘tactical maneuvering’ [and] the consequence is [that] the exemption claim comes too late.” Lykins v. Asst. Atty. Gen., 608 F.Supp. 693, 696 (D.D.C.1984). See Jordan v. U.S. Dept. of Justice, 591 F.2d 753, 780 (D.C.Cir.1978) (en banc). Were we to rule otherwise on the facts of this case we would be elevating routine recourse to hindsight to the level of “extraordinary circumstances.” We thus consider only exemption 3, 5 U.S.C. § 552(b)(3), which the Commission raised previously. It states that the FOIA does not apply to matters that are “specifically exempted from disclosure by statute (other than section 552(b) of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” The Commission seems to argue that Fed.R.Crim.P. 32 and 18 U.S.C. § 4208, the Parole Act, or some combination of the two of them, meet the requirements" }, { "docid": "5154391", "title": "", "text": "the adequacy of the agencies’ searches, which this Court has already rejected. Accordingly, the Court finds defendants’ Vaughn indices to be adequate — except as specifically indicated later in this Memorandum Opinion — and the Court need not conduct an in camera inspection of the documents. See PHE, Inc. v. DOJ, 983 F.2d 248, 253 (D.C.Cir.1993), quoting Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1209 (D.C.Cir.1992) (“[I]n camera review is generally disfavored. It is ‘not a substitute for the government’s obligation to justify its withholding in publicly available and debatable documents.’ ”). 4. With certain exceptions, the FOIA exemptions defendants have invoked adequately justify their withhold-ings Plaintiff also challenges the specific FOIA exemptions under which defendants have withheld information. The Court will assess each of them. A. Exemption 3 Defendants relies on Exemption 3 to withhold information covered by 18 U.S.C. § 3509(d) and Federal Rule of Criminal Procedure 6(e). FOIA Exemption 3 authorizes the government to withhold information that is: [Specifically exempted from disclosure by statute ... if that statute (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009 [enacted Oct. 28, 2009], specifically cited to this paragraph. 5 U.S.C. § 552(b)(3). Plaintiff concedes defendants properly invoked Exemption 3 to withhold the names and identifying information of child victims and witnesses in plaintiffs prosecution pursuant to the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509(d), which statutorily prohibits disclosure of those types of information. Pl.’s Opp. at 12. However, he objects to defendants’ invocation of Federal Rule of Criminal Procedure 6(e) as a basis for withholding information concerning the grand jury proceedings in his criminal case. Defendants have withheld all information obtained pursuant to a grand jury subpoena that was contained in an FBI report of investigation, Hardy Decl. ¶ 40 & p. 11; names of grand jury" }, { "docid": "20286045", "title": "", "text": "87-CV-2415, 1991 WL 111457, at *4 (D.D.C. June 13, 1991) (citing Access Reports v. Dep’t of Justice, 926 F.2d 1192 (D.C.Cir.1991)). A document is deliberative if it reflects the give-and-take of the consultative process. Coastal States Gas Corp., 617 F.2d at 866 (D.C.Cir.1980). In other words, “the document must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C.Cir.1975). Thus, purely factual material is not protected, “ ‘unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.’ ” N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. at 308 (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997)). Therefore, documents will not be protected in their entirety, unless redacting the portions of the documents that reveal deliberations is impossible. Id. at 309. Documents that “ ‘memorialize or evidence the policy an agency ultimately adopts on an issue’ ” or “documents that the agency used in dealing with the public” are not privileged. Id. Plaintiffs rest their objection to the use of the privilege to withhold documents on mere speculation that some of the documents might include working law. I cannot find that the exemption was improperly withheld on mere speculation, nor I will order the defendant to release the documents because of this same speculation. 6. Documents Withheld Pursuant to Exemption 3 The IRS withheld a large number of the documents according to 5 U.S.C. § 552(b)(3), which provides an exemption from production under FOIA for information “specifically exempted from disclosure by statute.” Id. The plaintiffs object to the withholding of 37 documents pursuant to this exemption, hereinafter referred to as Exemption 3. See App. A to Pis. Mot. (“App. A”). For this FOIA exemption to apply, the statute in question must require that “the matters be withheld from the public in such a manner as to leave no discretion on the issue,” or it must “[establish] particular criteria for withholding or [refer] to particular types of matters to be" }, { "docid": "7066626", "title": "", "text": "would also mandate disclosure to any potential defendant who files a FOIA request. We are therefore unable to accept the appellants’ argument that disclosure would not interfere with the Government’s ongoing enforcement proceedings. IV. For the foregoing reasons, we affirm the decision of the district court. . In its brief to the Court, the Government states that subsequent to the appellants' September 1995 FOIA request, it has secured eleven additional indictments, all resulting in guilty pleas, as well as fines exceeding $11 million. After submitting its brief to the Court, the Government secured indictments of three corporate officers involved in the conspiracy. One of the three men has pleaded guilty to conspiracy charges; the other two are set to stand trial. . While the Government asserted that it could withhold all the documents under Exemption (7)(A), it also asserted that other exemptions — ■ including Exemptions 3, 4, 5, and 7(D) — could apply to portions of the withheld documents. See 5 U.S.C. § 552(b). The Government reserved the right to assert those exemptions if the district court rejected its 7(A) exemption claim. . A Vaughn index is a comprehensive listing of each withheld document cross-referenced with the FOIA exemption that the Government asserts is applicable. See Wright v. OSHA, 822 F.2d 642, 645 (7th Cir.1987); Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). . The court also found that the Government was justified in withholding the category D documents-grand jury testimony and exhibits — under FOIA Exemption 3, which permits withholding information that is \"specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld,\" 5 U.S.C. § 552(b)(3). The court held that Federal Rule of Criminal Procedure 6(e) generally prohibits disclosure of grand jury materials, and that any request for disclosure must be filed in the Northern District" }, { "docid": "22813031", "title": "", "text": "required to exhaust his administrative remedies before challenging in district court the Government’s withholding of documents regarding Oscar Niger. We held his argument is without merit. Although the Government missed the ten-day statutory deadline for responding to a FOIA request under § 552(a)(6)(C), it responded to the request before McDonnell moved to amend his complaint to include the withheld documents. The district court thus correctly dismissed this portion of, McDonnell’s lawsuit for lack of subject matter jurisdiction. . B. FOIA Exemptions After deciding the three preliminary issues outlined above, we considered the parties’ claims under five separate exemptions to the general FOIA policy of full disclosure. The first exemption we considered is Exemption 1, the National Security Exemption. The Government presented an affidavit describing the withheld information, stating the reason for the withholding, and establishing why disclosure of the information would constitute a threat to national security. McDonnell provided no evidence to controvert the Government’s showing that the requested information falls within Exemption 1. We will therefore affirm the district court’s order granting summary judgment to the Government on Exemption 1. The second exemption we considered is Exemption 3, which permits an agency to withhold matters specifically exempted from disclosure by another statute if certain requirements are met. The Government withheld documents under Exemption 3 on grounds that they fell within the general secrecy requirements of two other statutes. The first is Federal Rule of Criminal Procedure 6(e)(2), which prevents disclosure except in certain enumerated circumstances of matter presented to a grand jury. We will affirm the district. court’s order granting summary judgment to the Government on its refusal to disclose requested information that falls within the scope of Rule 6(e)(2) and Exemption 3. The second statute on which the Government relied is 18 U.S.C.A. § 5038, which provides for nondisclosure of juvenile records, subject to certain enumerated exceptions. McDonnell seeks the New Jersey juvenile records of George White Rogers. Because § 5038 imposes a secrecy requirement on federal juvenile records only, the records McDonnell seeks do not fall within the scope of that statute. The Government has not asserted" }, { "docid": "14073183", "title": "", "text": "11-445, regarding the agency’s decision to withhold thirteen documents under FOIA Exemption 2. These documents are labeled in the CIA’s Vaughn index as: C05520233, C05520227, C05520231, C05520236, C05520235, C05520226, C06520181, C05520232, C05520213, C05520218, C05520223, C05520228, and C05520234. H. Exemption 3 Next, the plaintiff challenges the withholding of several hundred records by the CIA, DIA, and ODNI, in whole or in part, under FOIA Exemption 3. That exemption, in the context of this case, applies to matters “specifically exempted from disclosure by statute ... if that statute” either (1) “requires that the matters to be withheld from the public in such a manner as to leave no discretion on the issue,” or (2) “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” See 5 U.S.C. § 552(b)(3). Specifically, the plaintiff challenges (1) the CIA’s Exemption 3 with-holdings made under the authority of Section 6 of the CIA Act, 50 U.S.C. § 403g, in all three cases, (2) the DIA’s Exemption 3 withholdings made under the authority of the National Security Act, 50 U.S.C. § 403-1(0(1), in No. 11-445, and (3) the ODNI’s Exemption 3 withholding of the domain portions of e-mail addresses, under the authority of Section 6 of the CIA Act, in No. 11-445. The Court will discuss each category of withholding decisions in turn. 1. CIA The plaintiff challenges the CIA’s withholding of over 300 responsive records, in whole or in part, under FOIA Exemption 3. A1 of the information withheld by the CIA under Exemption 3 in all three cases was withheld under the authority of Section 6 of the CIA Act, 50 U.S.C. § 403g, which states in relevant part that “the [CIA] shall be exempted from the ... provisions of any other law [including the FOIA] which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the [CIA].” See Def.’s First 443 Mem. at 9-10; Def.’s First 444 Mem. at 24-25; Defs.’ First 445 Mem. at 17. The threshold question presented by the plaintiffs Exemption 3 challenges against the CIA" } ]

[ { "docid": "691718", "title": "", "text": "the established law of a state. Plaintiff declined to do so. Consequently, the case must be dismissed because it fails to state a cause of action under established New York law. Plaintiff has sued the New York Medical College and several individuals in connection with her termination from several job assignments as an ophthalmologist. She claims that defendants terminated her work assignments because she had given an interview to the New York Times, which resulted in an article suggesting that some student openings in the medical school were being sold for contributions amounting to as much as $100,000 each. The complaint asserted five claims: (1) breach of an implied understanding that plaintiff’s employment would not be terminated without good cause; (2) breach of an implicit covenant of good faith and fair dealing that her employment would not be terminated without good cause; (3) violation of her constitutional right to speak to the press regarding defendant’s admissions policies; (4) malicious termination of plaintiff’s employment, with intent to injure and without economic justification, and in contravention of her reasonable expectancy not to be terminated except for good cause; and (5) wanton and willful infliction of injury to plaintiff. Plaintiff asked $500,000 on each of the first four claims, and $1,000,000 on the fifth. Plaintiff has not claimed to be a tenured employee, or one with any contract of em-. ployment. In fact, she has relinquished her claims based on any form of employment contract, written or oral, express or implied. She has also relinquished her claim for willful and wanton infliction of harm. The only claim she still asserts is her claim for abusive discharge. In plaintiff’s responding papers to the motion, the abusive discharge claim is the only one addressed, and at oral argument plaintiff’s counsel stated that he would have voluntarily discontinued the other claims had he been asked to do so. The tort of abusive discharge has been tentatively recognized by some lower courts in New York. E.g., Murphy v. American Home Products Corp., Sup., 447 N.Y.S.2d 218 (1982); Balancio v. American Optical Corp., Index No. 13229/80 (Sup.Ct. Westchester" } ]

[ { "docid": "3262263", "title": "", "text": "within the limitations period, and Roster has not alleged any conduct by Ross within that period that in and of itself is sufficiently extreme, outrageous and uncivilized to be actionable. I therefore am constrained to grant summary judgment to Ross on Count V. D. Counts VI and VII. In Count VI of the complaint Roster purports to state a tort claim for wrongful or abusive discharge against Ross and Chase. Defendants correctly point out that New York does not recognize a tort of wrongful or abusive discharge where the plaintiff was an at-will employee. Murphy, 58 N.Y.2d at 300-02, 461 N.Y.S.2d 232, 448 N.E.2d 86. Her final cause of action is for breach of an implied covenant of good faith and fair dealing in her employment contract. Unless a former employee alleges that the employer made representations that the discretion of the employer in choosing to discharge her was less than unfettered, and that the plaintiff relied on those representations to her detriment, Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982), no such implied covenant exists in at-will employment contracts. Murphy, supra, 58 N.Y.2d at 304-05, 461 N.Y.S.2d 232, 448 N.E.2d 86; Wernham v. The Rt. Rev. Paul Moore, Jr., N.Y.L.J. Apr. 15, 1985 at 7, col. 4, col. 6. Roster has not alleged any such representations. Defendants must be awarded summary judgment on Counts VI and VII. III. CONCLUSION. The motion of defendants Chase and Ross for summary judgment is granted as to Counts II, III, VI and VII. Summary judgment is granted in favor of defendant Ross as to Counts IV and V. Roster’s claims of sexual harassment and disparate treatment will be considered under Title VII. Since the only remaining claims are in Count I of the complaint, a claim under Title VII, plaintiff’s demand for a jury trial is hereby stricken. Trial will be to the Court. SO ORDERED. . The general standard and each of its components are defined in 29 C.F.R. §§ 800.119 — 800.-132. . Owen is no longer an employee of Chase. He is now president" }, { "docid": "8922425", "title": "", "text": "Inc. v. Chicago Hous. Auth., 892 F.2d 583, 589 (7th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). As Gordon explains, “[sjuch an obligation ‘is in aid and furtherance of other terms of the agreement of the parties.’ It does not create an independent cause of action.” 562 F.Supp. at 1290 (quoting Murphy v. Am. Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86, 91 (1983)). An employment-at-will relationship “gives the employer the right to terminate the employment at any time. Therefore, it is incongruous to imply a covenant [the implied covenant of good faith and fair dealing] which restricts that right.” Harrison v. Sears, Roebuck & Co., 189 Ill.App.3d 980, 993, 137 Ill.Dec. 494, 502, 546 N.E.2d 248, 256 (4th Dist.1989). Having determined that LaScola was an employee-at-will, the district court concluded that the duty of good faith and fair dealing, implied in every contract as a matter of law, did not create an independent cause of action in LaScola’s case and that he could not prevail on his claim that US Sprint breached the covenant by discharging him. US Sprint contends that it had the right to terminate LaScola for a good reason, bad reason or no reason. LaScola counters that the implied duty of good faith and fair dealing should have restricted US Sprint’s right in that regard, because a cause of action for a breach of the covenant of good faith and fair dealing exists when there is opportunistic deprivation of commissions through termination. By failing to consider US Sprint’s obligation to deal fairly and in good faith with respect to LaScola’s commissions, LaScola claims, the district court granted summary judgment for US Sprint without ruling on a key allegation in the complaint. LaScola also asserts that US Sprint violated the duty to discharge in good faith that LaScola argues was inherent in the noncompetition agreement between LaScola and US Sprint. The Illinois courts do not allow for a cause of action based on discharge from employment-at-will, and “have shown no disposition to abandon the at will" }, { "docid": "10479598", "title": "", "text": "III alleges that NatWest breached Moylan’s contract of employment. NatWest responds that Moylan was an employee-at-will. Moylan counters that he relied on unspecified personnel practices of NatWest to accept, and remain in, employment there. Under New York law, employment for an indefinite term is presumed to be an employment-at-will. See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 300, 448 N.E.2d 86, 89, 461 N.Y.S.2d 232, 235 (1983). An employer may terminate an employee-at-will “at any time for any reason or even for no reason.” Id. at 300-02, 448 N.E.2d at 89, 461 N.Y.S.2d at 235. In such a case, the employee does not have a claim for wrongful discharge. See id. at 297, 448 N.E.2d at 87, 461 N.Y.S.2d at 233. If, however, the employee shows an express limitation on the employer’s right to discharge him, he may sue the employer for breach of contract. See id. at 305, 448 N.E.2d at 91, 461 N.Y.S.2d at 237-38. Moylan has presented no specific evidence bearing on this issue. He instead states in a general and conclusive manner that he came to rely on defendant’s assurances. This evidence, with nothing more, is insufficient for a jury to find that Moylan was more than an employee-at-will. E.g., id. at 304-05, 448 N.E.2d at 91, 461 N.Y.S.2d at 237-38. Compare Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982) (limitation on right to discharge may be inferred from concrete evidence of such a limitation). Thus, I conclude that Moylan has no claim for a breach of contract. Count IV alleges a claim under N.Y.Exec.Law § 296(1)(a), which bars, among other things, age discrimination. Moylan also filed this claim with the appropriate state agency, which rejected it. Accordingly, he is barred by the doctrine of election of remedies from bringing this action. Id. § 297(9); see Collins v. Manufacturers Hanover Trust Co., 542 F.Supp. 663, 672-73 (S.D.N.Y.1982). CONCLUSION For the forgoing reasons, it is hereby ORDERED that defendant’s motion to dismiss Counts III and IV of the Complaint is granted. The motion is denied in all other respects." }, { "docid": "9549088", "title": "", "text": "entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Consequently, the defendant’s motion for summary judgment on count seven of the complaint is granted. VII. State Law Claims Counts two, three, four, five and six of the plaintiffs complaint charge breach of employment contract, breach of the covenant of good faith, negligent misrepresentation/negligent infliction of emotional distress, promissory estoppel and intentional infliction of emotional distress, respectively. In its motion for summary judgment, the defendant asked this court to decline to exercise pendent jurisdiction over these state law claims. Since oral argument on this motion, however, the plaintiff has amended his complaint to assert diversity of citizenship as a basis for this court’s jurisdiction over these state law claims. Thus, we will consider the merits of the defendant’s summary judgment motion on these counts. A. Breach of Employment Contract Count two of the plaintiff’s complaint alleges breach of an employment contract. The defendant moves for summary judgment on this count contending that the plaintiffs employment was an employment at will. The New York courts maintain a “long-settled rule that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason.” Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300, 461 N.Y.S.2d 232, 235, 448 N.E.2d 86, 89 (1983). Although the plaintiff apparently concedes that his employment arrangement with Chase did not include a definite term of employment, he argues that Chase’s verbal and written promises of job security created an implied contract of employment. Abstract assurances of future employment will not transform and employment at will to a contract of permanent employment. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d" }, { "docid": "646029", "title": "", "text": "her deposition that she had no written employment contract, and that no one in a position of authority ever promised her anything regarding the length of her employment. Nonetheless, plaintiff contends that certain statements allegedly made by her supervisor, together with a December 16, 1982 newsletter distributed to employees, created a contract of employment. I am not persuaded. The newsletter article, after acknowledging Interfaith’s obligation to reduce the work-force, refers to a statement by the State Health Commissioner that “the state would attempt to provide every hospital worker who lost his/her job through the merger with the same level hospital job.” Plaintiff’s Ex. 4 (emphasis added). This statement, attributed to a state official, can hardly form the basis of a claim against Interfaith. Thus, plaintiff’s claim rests solely upon the statements attributed to her supervisor, Ms. Porter. Plaintiff alleges that Ms. Porter told the employees at a meeting held two or three days before plaintiff learned of her lay-off that their jobs would not be affected by the merger. Clearly, a question of fact exists as to whether this statement was made. Defendant argues, however, that assuming arguendo that the statement was made, it is nonetheless entitled to summary judgment. I agree. As the New York Court of Appeals recently has stated: [A]bsent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired. Murphy v. American Home Products Corp., 58 N.Y.2d at 305, 461 N.Y.S.2d at 237, 448 N.E.2d at 91. Of course, an express limitation on an employer’s right to discharge an at-will employee must be given effect. See Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 460, 457 N.Y.S.2d 193, 194, 443 N.E.2d 441, 442 (1982). In Weiner, the Court of Appeals held that the plaintiff, although not employed for a fixed term, had pleaded a good cause of action for breach of employment contract where he was “discharged without the ‘just and sufficient cause’ or the rehabilitative efforts specified in the employer’s personnel handbook and allegedly promised" }, { "docid": "646030", "title": "", "text": "as to whether this statement was made. Defendant argues, however, that assuming arguendo that the statement was made, it is nonetheless entitled to summary judgment. I agree. As the New York Court of Appeals recently has stated: [A]bsent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired. Murphy v. American Home Products Corp., 58 N.Y.2d at 305, 461 N.Y.S.2d at 237, 448 N.E.2d at 91. Of course, an express limitation on an employer’s right to discharge an at-will employee must be given effect. See Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 460, 457 N.Y.S.2d 193, 194, 443 N.E.2d 441, 442 (1982). In Weiner, the Court of Appeals held that the plaintiff, although not employed for a fixed term, had pleaded a good cause of action for breach of employment contract where he was “discharged without the ‘just and sufficient cause’ or the rehabilitative efforts specified in the employer’s personnel handbook and allegedly promised at the time he accepted the employment.” Id. at 460, 457 N.Y.S.2d at 194, 443 N.E.2d at 442. The New York courts, however, have refused to extend the Weiner decision beyond the facts of that case. See, e.g., O’Donnell v. Westchester Community Service Council, Inc., 96 A.D.2d 885, 466 N.Y.S.2d 41, 42 (2d Dep’t 1983); Utas v. Power Authority of the State of New York, 96 A.D.2d 940, 940-41, 466 N.Y.S.2d 390, 391 (2d Dep’t 1983). The Weiner case is clearly distinguishable from this case, since (a) plaintiff was not induced to take her job at Interfaith because of Porter’s alleged representation, (b) the representation was not incorporated into an employment application, (c) plaintiff produces no support for her allegations that she rejected other offers of employment in reliance on the representation and (d) the representation was not contained in an employee handbook. See Utas, 96 A.D. at 940-41, 466 N.Y.S.2d at 381. Clearly, plaintiff cannot succeed on her breach of contract claim since there was no employment agreement to be breached. Accordingly, summary judgment" }, { "docid": "3262262", "title": "", "text": "may make it sufficiently outrageous that a jury could reasonably find in Roster’s favor. See Nader v. General Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 654, 255 N.E.2d 765, 770 (1970) (“where severe mental pain and anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for intentional infliction of emotional distress”); Mitran v. Williamson, 21 Misc.2d 106, 197 N.Y.S.2d 689 (Sup.Ct. Rings Co. 1960); W.P. Reeton, D.B. Dobbs, R.E. Reeton & D.G. Owen, Keeton & Prosser on the Law of Torts § 12 at 61-62 & n. 62 (5th ed. 1984). Roster’s claim is, however, barred by the statute of limitations. As an intentional tort, this claim has a one-year limitations period under CPLR § 215. Roster filed this action on August 11, 1981; she was fired on August 13, 1980. All acts occurring before the limitations period are excluded from consideration. See Weisman v. Weisman, 485 N.Y.S.2d 570 (App.Div. 1985). Only a very short amount of time is within the limitations period, and Roster has not alleged any conduct by Ross within that period that in and of itself is sufficiently extreme, outrageous and uncivilized to be actionable. I therefore am constrained to grant summary judgment to Ross on Count V. D. Counts VI and VII. In Count VI of the complaint Roster purports to state a tort claim for wrongful or abusive discharge against Ross and Chase. Defendants correctly point out that New York does not recognize a tort of wrongful or abusive discharge where the plaintiff was an at-will employee. Murphy, 58 N.Y.2d at 300-02, 461 N.Y.S.2d 232, 448 N.E.2d 86. Her final cause of action is for breach of an implied covenant of good faith and fair dealing in her employment contract. Unless a former employee alleges that the employer made representations that the discretion of the employer in choosing to discharge her was less than unfettered, and that the plaintiff relied on those representations to her detriment, Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d" }, { "docid": "14169954", "title": "", "text": "the strict common law doctrine of at-will employment has come under attack, Davis v. United Supply, 581 F.2d 335, 340 (3d Cir.1978); see Weiner v. McGraw Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (N.Y.1982); see generally Peirce, Mann, Roberts, Employee Termination at Will: A Principled Approach, 28 Vill.L.Rev. 1 (1982); Comment, The Employment-at-Will Rule: The Development of Exceptions and Pennsylvania’s Response, 21 Duquesne L.Rev. 477 (1983), Pennsylvania has neither recognized nor advanced the principles asserted by these challenges to the traditional doctrine. Compare Murphy v. American Home Products, 461 N.Y.S.2d 232, 448 N.E.2d 86, 58 N.Y.2d 293 (N.Y.1983) (at-will employees discharged in bad faith do not have cause of action against employer for breach of contract). For these reasons, defendants’ motion for summary judgment on count VII of the amended complaint will be granted. B. Intentional Infliction of Emotional Distress Count VIII of the amended complaint asserts that the conduct of the defendants vis-a-vis the plaintiff constituted “outrageous conduct and an intentional infliction of emotional distress upon plaintiff.” It is the duty of the court to determine, in the first instance, whether the defendants’ conduct could reasonably be regarded as so extreme and outrageous as to permit recovery. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273-74 (3d Cir.1979); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 385, 368 A.2d 770, 774 (1976); Restatement (Second) of Torts § 46, comment (h) (1965). As a basis for her claim, plaintiff avers that defendants, without cause, stripped her of her position as Personnel Director at HUP and placed her in a newly created position without responsibilities. They took away plaintiff’s private office and had her working in a “corral space.” Her secretary was reassigned to someone who had previously reported to Wells and a line was removed from plaintiff’s phone without prior consultation. Wells was the only managerial level employee who, if she was away from her desk, would have her phone calls go unanswered. Additionally, Thomas gave plaintiff poor performance evaluations on two occasions, the first time she was rated below excellent in 25 years." }, { "docid": "16941688", "title": "", "text": "fruits of the contract.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 80 (2d Cir.2002). While the implied covenant of good faith and fair dealing does not “imply obligations inconsistent with other terms of the contractual relationship,” it does encompass “any promises which a reasonable person in the position of the promisee would be justified in understanding were included.” Manhattan Motorcars, Inc. v. Automobili Lamborghini 244 F.R.D. 204 (S.D.N.Y.2007) (quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 304, 461 N.Y.S.2d 232, 448 N.E.2d 86 (N.Y.1983); Rowe v. Great Atl. & Pac. Tea Co., 46 N.Y.2d 62, 69, 412 N.Y.S.2d 827, 385 N.E.2d 566 (N.Y.1978)). To avoid redundancy, “Claims of breach of the implied covenant ... must be premised on a different set of facts from those underlying a claim for breach of contract.” Deutsche Bank Sec. Inc. v. Rhodes, 578 F.Supp.2d 652, 664 (S.D.N.Y.2008) . “A party may maintain a claim for breach of the implied covenant only if the claim is based on allegations different from the allegations underlying the accompanying breach of contract claim.” Id. Accordingly, “A claim for breach of the implied covenant will be dismissed as redundant where the conduct allegedly violating the implied covenant is also the predicate for breach of covenant of an express provision of the underlying contract.” ICD Holdings S.A. v. Frankel, 976 F.Supp. 234, 243-44 (S.D.N.Y.1997); Murphy, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (holding that the implied obligation is simply “in aid and furtherance of other terms of the agreement of the parties.”); Madison Capital Co., LLC v. Alasia, LLC, 615 F.Supp.2d 233, 239 (S.D.N.Y.2009). b. Discussion Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing in the Policies is duplicative of their breach of contract claim. “New York law ... does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing when a breach of contract claim, based upon the same facts, is also pled.” Harris, 310 F.3d at 81. Plaintiffs’ claim here is precisely so based. Count" }, { "docid": "3327146", "title": "", "text": "the claims under the Minnesota Franchise Act in Dwyer should be dismissed. However, defendants did not move for summary judgment on those claims and the law in the Eighth Circuit prohibits a court from granting summary judgment sua sponte. Williams v. City of St. Louis, 783 F.2d 114 (8th Cir.1986). B. Governing Law Defendants attack plaintiffs’ claims for breach with three alternative arguments, depending upon the particular allegation, either: (A) that the evidence demonstrates no breach, (B) that plaintiffs’ claims are barred by the contract’s integration clause, the parol evidence rule or the statute of frauds, or (C) that claims based on alleged oral modifications of the contract are unenforceable unless supported by new or additional consideration. Defendants also argue that (1) plaintiffs cannot assert their breach of contract and implied covenant claims against any defendants other than HDF and HDSC, and (2) that neither Pillsbury nor HDSC are liable as a successor to HDF. 1. General Contract Principles In New York, as in every state, the law of contracts provides a remedy only for the nonperformance of agreed terms because “[ejvery man is presumed to be capable of managing his own affairs, and whether his bargains are wise or unwise, is not ordinarily a legitimate subject of inquiry in a court of either legal or equitable jurisdiction.” Parmelee v. Cameron, 41 N.Y. 392, 395 (1869). An unjustified failure to perform as required by the contract’s express terms constitutes a breach. Restatement (Second) of Contracts § 260(2). In addition, a covenant of good faith and fair dealing is implied in contracts which do not involve the sales of goods or employment at will. Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Pub. Co., 30 N.Y.2d 34, 330 N.Y.S.2d 329, 281 N.E.2d 142, cert. denied, 409 U.S. 875, 93 S.Ct. 125, 34 L.Ed.2d 128 (1972). The implied covenant of good faith and fair dealing serves “in aid and furtherance of other terms of the agreement of the parties.” Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.\\S.2d 232, 237, 448 N.E.2d 86 (1983). That covenant is breached only when" }, { "docid": "4042135", "title": "", "text": "limits her endurance for physical labor, but it does not prevent her from working. Accordingly, FedEx is entitled to summary judgment on Aquinas’s NYHRL claims. 2. Plaintiffs Claim for Breach of Contract Aquinas also claims that defendant breached its contract with her by failing to follow the policies contained in its employee handbook. In particular, she alleges that FedEx applied its disciplinary procedures differently to her than to similar, non-disabled employees, in violation of its stated policies against discrimination. (Amended Complaint at 11; Pl.Dep.Tr. at 301, 306.) Presumably she intends to argue that this unequal treatment rendered her termination wrongful under the terms of her employment agreement with FedEx. (See Plaintiffs Response to Motion at ¶ 8.) It is not necessary to reach the merits of this contention, however, because Aquinas has failed to show that the employee handbook constitutes a binding contract. Pursuant to New York law, an employer retains its traditional right to terminate any employment arrangement at will, unless that right is limited by statute or by contractual provision. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 305, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86, 91 (1983). Aquinas’s original employment contract contains no such limiting clause; to the contrary, it provides that her employment “shall be for an indefinite period and may be terminated at any time.” (Pl.Dep.Exh. 6— final page.) Nor has Aquinas presented any evidence to support her elaim that the terms of her employment handbook altered her at-will relationship with FedEx. In the first place, she has pointed to no “express limitation” in the manual, see Murphy, at 304, 461 N.Y.S.2d 232, 448 N.E.2d 86; but even if the handbook policies that she has cited are liberally construed to be limiting provisions, they cannot contractually bind FedEx, as a matter of law, in the absence of substantial evidence that FedEx intended to limit its rights and that Aquinas actually relied on the contents of the handbook at the time she was hired. Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 464, 457 N.Y.S.2d 193, 197, 443 N.E.2d 441, 445 (1983); Wexler v. Newsweek, Inc.," }, { "docid": "7353329", "title": "", "text": "193 (1982). In Weiner, the New York Court of Appeals held for the first time that a plaintiff had pleaded a good cause of action for breach of contract even though he had not been hired for a specific term of employment. The court held it possible for an employer to bind itself by promises in a handbook that employees would not be dismissed without “just and sufficient cause” or rehabilitative efforts, assuming that the employee relied on these promises when he accepted employment. Weiner listed the allegations that, taken together, evinced a contract and a breach: First, plaintiff was induced to leave Prentice-Hall with the assurance that McGraw-Hill would not discharge him without cause. Second, this assurance was incorporated into the employment application. Third, plaintiff rejected other offers of employment in reliance on the assurance. Fourth, appellant alleged that, on several occasions when he had recommended that certain of his subordinates be dismissed, he was instructed by his supervisors to proceed in strict compliance with the handbook and policy manuals because employees could be discharged only for just cause. He also claims that he was told that, if he did not proceed in accordance with the strict procedures set forth in the handbook, McGraw-Hill would be liable for legal action. Id. at 465-66, 443 N.E.2d at 445, 457 N.Y. S.2d at 197 (emphasis added). The gold rush of litigation touched off by Weiner was blunted, in large measure, by Murphy v. American Home Products Corp., 58 N.Y.2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232 (1983). Murphy contended that “in all employment contracts the law implies an obligation on the part of the employer to deal with his employees fairly and in good faith and that a discharge in violation of that implied obligation exposes the employer to liability for breach of contract.” Id. at 304, 448 N.E.2d at 91, 461 N.Y.S.2d at 237. This proposition was rejected by the Court of Appeals, which summarized the applicable New York law: [Ajbsent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s" }, { "docid": "22308028", "title": "", "text": "a particular clause, there is no ambiguity. Hudson-Port Ewen Assocs., L.P. v. Chien Kuo, 78 N.Y.2d 944, 945, 573 N.Y.S.2d 637, 578 N.E.2d 435 (1991). The sole other reference in the Settlement Agreement to “Audit” is in § 1, yet the definition provided in § 1 is circular and does not clarify the meaning of § 17A. It states that “‘Audit’ is defined in Section 6(r) of this Agreement,” the same reference that creates the ambiguity in the first place. Because there is no other provision in the Settlement Agreement that removes the ambiguity in § 17A, we must vacate the district court’s grant of summary judgment on the breach of contract claims and remand this case for trial on these claims. Plaintiffs’ final theory rests on Marine’s alleged breach of the covenant of good faith and fair dealing, which is implied in every contract under New York law unless there is an inconsistency between the covenant and the other terms of the contractual relationship. New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 662 N.E.2d 763 (1995); Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 304-05, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983); Gelder Medical Group v. Webber, 41 N.Y.2d 680, 684, 394 N.Y.S.2d 867, 363 N.E.2d 673 (1977); Goodstein Constr. Corp. v. City of New York, 111 A.D.2d 49, 51, 489 N.Y.S.2d 175 (1st Dep’t 1985), aff'd, 67 N.Y.2d 990, 502 N.Y.S.2d 994, 494 N.E.2d 99 (1986). But plaintiffs have failed to produce any evidence that Marine or Eagle Rock ever violated that covenant. The First Amended Complaint is devoid of any allegation that the audit had not been performed in good faith. Nor have plaintiffs pointed to any evidence to show that Marine or Eagle Rock acted in bad faith. On appeal, plaintiffs cite only to Rea-le’s affidavit, which does not make a single reference to the accuracy of the audit, let alone defendants’ good or bad faith in conducting the audit. Accordingly, we believe that there is no disputed issue of material fact that would forestall the grant of summary judgment" }, { "docid": "8910212", "title": "", "text": "support plaintiff’s IIED claim here is that he was discharged; such an allegation falls substantially below the strict standard applicable to IIED claims. Consequently, defendants’ motion to dismiss plaintiff’s IIED claim is granted. See George v. Hilaire Farm Nursing Home, 622 F.Supp. 1349, 1354-1355 (S.D.N.Y.1985) (“Where conduct is not sufficiently egregious to meet this yardstick, the claim must be dismissed.”) C. Implied Covenant of Fair Dealing and Good Faith In his fifth cause of action plaintiff alleges that defendants “breached their obligation to deal with Giles A. Wanamaker in good faith.” Amended Complaint at par. 25. But because plaintiff did not indicate in that cause of action, or anywhere in the amended complaint for that matter, any express promise made by any of the defendants to deal with him in good faith, presumably he is alleging an implied covenant of good faith and fair dealing. New York does not recognize such an implied covenant in employment contracts, however. Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 335, 514 N.Y.S.2d 209, 506 N.E.2d 919 (1987); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 304-05, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983). See also Wakefield v. Northern Telecom, Inc., 769 F.2d 109 (2d Cir.1985), modified on other grounds, 813 F.2d 535 (2d Cir.1987). Therefore, in the absence of an express contract by defendants to deal with plaintiff fairly and in good faith, defendants’ motion to dismiss that cause of action is also granted. D. Human Rights Law Although not well pleaded, it does appear as though plaintiff is also alleging a cause of action based upon the HRL in his amended complaint. Defendants assert that “if the court finds that plaintiff has fulfilled his ADEA administrative filing obligations,” as it has so found, this claim must be dismissed for failure to state a claim upon which relief may be granted, based upon election of remedies. N.Y.Exec.Law § 297(9) states, in relevant part: Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies" }, { "docid": "646027", "title": "", "text": "motive necessary to establish a claim of disparate treatment. Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, n. 15, 52 L.Ed.2d 396 (1977) . Indeed, the lack of proof or admission of intentional discrimination is dispositive of plaintiff’s § 1982 claim. Firefighters Local Union No. 1784 v. Stotts, - U.S.-, 104 S.Ct. 2576, 2590 n. 16, 81 L.Ed.2d 483 (1984); General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 383, 102 S.Ct. 3141, 3146, 73 L.Ed.2d 835 (1982). In short, there simply is nothing in the record to indicate that either age, sex or race was a determinative factor in plaintiff’s lay off. Hagelthorn, 710 F.2d at 86. As the Second Circuit recently has stated: To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly [may grant] summary judgment. Meiri v. Dacon, 759 F.2d at 998. Accordingly, defendant’s motion for summary judgment on plaintiff’s ADEA, Title VII and § 1981 claims is granted. State Law Claims Plaintiff asserts various state law claims in connection with her discharge, including breach of employment contract, breach of an implied covenant of good faith, fraud, detrimental reliance and tortious wrongful discharge. For the reasons set forth below, defendant is granted summary judgment on these claims. Clearly, summary judgment must be granted as a matter of law on plaintiff’s claims of breach of implied covenant of good faith and tortious wrongful discharge, since both theories of recovery specifically have been rejected by the New York Court of Appeals. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 297, 304-05, 461 N.Y.S.2d 232, 233, 237, 448 N.E.2d 86, 87, 91 (1983). Cf. Boniuk v. New York Medical College, 535 F.Supp. 1353, 1355 (S.D.N.Y.), aff'd, 714 F.2d 111 (2d Cir.1982). Nor can plaintiff succeed on her claim of breach of employment contract. Plaintiff acknowledged at" }, { "docid": "3370990", "title": "", "text": "summary judgment in favor of defendants on the issue of whether defendants breached their implied covenant of good faith and fair dealing in connection with the distributorship contracts between plaintiffs and defendants. The district court granted summary judgment to defendants because it held that plaintiffs had failed to show “some breach of, or threat to breach, the underlying contract forming the relationship between the parties.” R.Doc. 305 at 10. When reviewing a summary judgment order, we apply the same standard as the district court to determine whether there is a genuine issue of material fact or whether the moving party is entitled to a judgment as a matter of law. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988); Fed.R.Civ.P. 56. Because there is express language in the contracts between plaintiffs and defendants which arguably was breached by defendants, the district court erred in granting summary judgment to defendants. New York case law recognizes that all contracts include an implied covenant of good faith and fair dealing. See Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Co., 30 N.Y.2d 34, 281 N.E.2d 142, 330 N.Y.S.2d 329 (Ct.App.), cert. denied, 409 U.S. 875, 93 S.Ct. 125, 34 L.Ed.2d 128 (1972). The implied covenant “is in aid and furtherance of other terms of the agreement of the parties.” Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 334-335, 506 N.E.2d 919, 921-922, 514 N.Y.S.2d 209, 212 (1987) (quoting Murphy v. American Home Prod. Corp., 58 N.Y.2d 293, 304, 448 N.E.2d 86, 91, 461 N.Y.S.2d 232, 237 (Ct.App.1983)); see also Associates Capital Svc. Corp. v. Fairway Private Cars, Inc., 590 F.Supp. 10, 16 (E.D.N.Y.1982); Caceci v. Di Canio Constr. Corp., 72 N.Y.2d 52, 60-61, 526 N.E.2d 266, 270, 530 N.Y.S.2d 771, 775 (Ct.App.1988) (“[I]t has long been the law in New York that courts will imply a covenant of good faith where the implied terms are consistent with other mutually agreed upon terms.”). In this case, the contracts specifically state that “[defendants] shall endeav- or to treat all of [defendants’] Sales Associates fairly in accordance with their respective" }, { "docid": "15399203", "title": "", "text": "it is presumed to be an employment at will, and that, “absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired.” Murphy v. American Home Products Corp., 58 N.Y.2d 293, 298, 448 N.E.2d 86, 91, 461 N.Y.S.2d 232, 237 (1983). I strongly disagree, however, that the statement in Robert Kopecek’s August 14 letter that “the occupant of the position serves at the pleasure of the supervisor for the first two years” is not an express limitation on the university’s right to terminate Ms. Wright. Although my brothers never fully describe their view of what is an express limitation, apparently they believe that, for a restriction to be express, it must be explicit, definitive and unambiguous. Hence, on the theory that “serves at the pleasure of the supervisor for the first two years” is susceptible of more than one meaning, the majority concludes that the restriction on which the plaintiff relies is not express. In my opinion, the decision in Murphy cannot bear the majority’s interpretation. There, the plaintiff sued for breach of contract alleging that his discharge after twenty-three years was an act of bad faith. Completely lacking any evidence that the defendant had in fact agreed to restrict its right to terminate his employment, the plaintiff urged the court to impose a limitation as a matter of law, on the theory that in all contracts the law implies an obligation on the part of the parties to act fairly and in good faith. The Court of Appeals dismissed the complaint. Recognizing that in certain circumstances an obligation of good faith may be implied, the court refused to supply such a covenant because it would be inconsistent with other terms of the parties’ agreement. Since the contract specified an at will employment, and the law affords an employer in that relationship an unfettered right of discharge, the court reasoned, it would be incongruous to infer that the employer impliedly agreed to a provision which would be destructive of" }, { "docid": "7353330", "title": "", "text": "discharged only for just cause. He also claims that he was told that, if he did not proceed in accordance with the strict procedures set forth in the handbook, McGraw-Hill would be liable for legal action. Id. at 465-66, 443 N.E.2d at 445, 457 N.Y. S.2d at 197 (emphasis added). The gold rush of litigation touched off by Weiner was blunted, in large measure, by Murphy v. American Home Products Corp., 58 N.Y.2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232 (1983). Murphy contended that “in all employment contracts the law implies an obligation on the part of the employer to deal with his employees fairly and in good faith and that a discharge in violation of that implied obligation exposes the employer to liability for breach of contract.” Id. at 304, 448 N.E.2d at 91, 461 N.Y.S.2d at 237. This proposition was rejected by the Court of Appeals, which summarized the applicable New York law: [Ajbsent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired. Id. at 305, 448 N.E.2d at 91, 461 N.Y.S.2d at 237 (emphasis added). The potentially broad implications of Weiner were very nearly limited to the facts of that case: “on an appropriate evidentiary showing, a limitation on the employer’s right to terminate an employment of indefinite duration might be imported from an express provision therefor found in the employer’s handbook on personnel policies and procedures.” Id. (emphasis added). The court is not unmindful of the “harshness of a rule which permits an employer to discharge with impunity a 30-year employee one day before his pension vests,” id. at 307, 448 N.E.2d at 93, 461 N.Y.S.2d at 239 (Meyer, J., dissenting in part), but it goes without saying that, in this diversity action, the court must apply New York law as explicated by the New York Court of Appeals. The Murphy principle has been applied by state and federal courts, often with unpleasant consequences for wrongful discharge claimants. Thus, in Rizzo v. International Brotherhood" }, { "docid": "646028", "title": "", "text": "judge properly [may grant] summary judgment. Meiri v. Dacon, 759 F.2d at 998. Accordingly, defendant’s motion for summary judgment on plaintiff’s ADEA, Title VII and § 1981 claims is granted. State Law Claims Plaintiff asserts various state law claims in connection with her discharge, including breach of employment contract, breach of an implied covenant of good faith, fraud, detrimental reliance and tortious wrongful discharge. For the reasons set forth below, defendant is granted summary judgment on these claims. Clearly, summary judgment must be granted as a matter of law on plaintiff’s claims of breach of implied covenant of good faith and tortious wrongful discharge, since both theories of recovery specifically have been rejected by the New York Court of Appeals. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 297, 304-05, 461 N.Y.S.2d 232, 233, 237, 448 N.E.2d 86, 87, 91 (1983). Cf. Boniuk v. New York Medical College, 535 F.Supp. 1353, 1355 (S.D.N.Y.), aff'd, 714 F.2d 111 (2d Cir.1982). Nor can plaintiff succeed on her claim of breach of employment contract. Plaintiff acknowledged at her deposition that she had no written employment contract, and that no one in a position of authority ever promised her anything regarding the length of her employment. Nonetheless, plaintiff contends that certain statements allegedly made by her supervisor, together with a December 16, 1982 newsletter distributed to employees, created a contract of employment. I am not persuaded. The newsletter article, after acknowledging Interfaith’s obligation to reduce the work-force, refers to a statement by the State Health Commissioner that “the state would attempt to provide every hospital worker who lost his/her job through the merger with the same level hospital job.” Plaintiff’s Ex. 4 (emphasis added). This statement, attributed to a state official, can hardly form the basis of a claim against Interfaith. Thus, plaintiff’s claim rests solely upon the statements attributed to her supervisor, Ms. Porter. Plaintiff alleges that Ms. Porter told the employees at a meeting held two or three days before plaintiff learned of her lay-off that their jobs would not be affected by the merger. Clearly, a question of fact exists" }, { "docid": "1039283", "title": "", "text": "and that section 10.49D permitted the use of seniority to displace junior employees systemwide. . The complaint asserted that the failure to follow these procedures constituted breach of the employment agreements and breach of the implied covenant of good faith and fair dealing existing in the employment agreements. Pursuant to the diversity of citizenship provisions of 28 U.S.C. § 1441(b), TWA re-' moved the action to the United States District Court for the Northern District of California and, following discovery, TWA moved for summary judgment. The district court granted TWA’s motion as to each of the claims made by Gianacu-lus, Buck and Gregg. The court found that New York law governed the contract under California conflict of laws principles and that New York did not provide for recovery in this case. The court added that the appellants were also barred from recovery under California law.- We need not decide whether the case is governed by New York or California láw, because recovery is precluded by the laws of both states. See Comment, False Conflicts, 55 CaliLL.Rev. 74, 76-77 (1967); Cavers, The Choice of Law Process (1965), p. 89 (where the laws of two states yield identical results, at most a “false conflict” is presented). II The New York Court of Appeals has explicitly rejected the existence of implied covenants of good faith and fair dealing in at-will employment contracts. Murphy v. American Home Products, 58 N.Y.2d 293, 304-305, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86, 91 (1983). In Murphy, the court of appeals stated: [Ujnder New York law as it now stands, absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual' contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired. ]/d. The court noted, however, that an employment handbook might constitute an express, limitation which would be given effect even though the employment contract was of indefinite duration. Murphy, 58 N.Y.2d at 304-305, 461 N.Y.S.2d at 237, 448 N.E.2d at 91. Whether a handbook could constitute such an express limitation depended, the court continued, upon the" } ]

[ { "docid": "14772116", "title": "", "text": "PER CURIAM: This appeal is taken from an order of the district court denying the petition of a federal convict for the writ of habeas corpus. We affirm. Appellant alleges that he has been deprived of 75 days of his accumulated good time without being given a hearing. The district court found from the record that appellant was present at a hearing before the good time forfeiture board, resulting in the board recommending forfeiture of good time. The record reflects that this is correct. Appellant does not indicate that he has applied to the Director of the Bureau of Prisons for a recommendation to restore his good time. Before a prisoner can avail himself of judicial review for loss of good time, he must first exhaust his administrative remedies. 18 U.S.C. § 4166. Gilchrist v. United States, 5th Cir. 1970, 429 F.2d 1132 [No. 29456, June 17, 1970]; Lynch v. United States, 5th Cir. 1969, 414 F.2d 281; Smoake v. Willingham, 10th Cir. 1966, 359 F.2d 386. The judgment below is affirmed. Affirmed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981." } ]

[ { "docid": "14631431", "title": "", "text": "PER CURIAM: Appellant is a Florida state prisoner serving a life sentence for murder. He filed a petition in the court below under 42 U.S.C. § 1983, seeking an injunction to obtain his permanent release from administrative segregation. He alleged that such confinement is unlawful because he has violated no prison regulations. The district court dismissed the petition for failure to state a claim upon which relief may be granted. We affirm. Classification of inmates is a matter of prison administration and management with which federal courts are reluctant to interfere except in extreme circumstances^. See Krist v. Smith, 5th Cir. 1971, 439 F.2d 146; Flint v. Wainwright, 5th Cir. 1970, 433 F.2d 961; Granville v. Hunt, 5th Cir. 1969, 411 F.2d 9. There being no extreme circumstances present in this case, the judgment below is affirmed. Affirmed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981." }, { "docid": "23270575", "title": "", "text": "for the period of December 10 to December 30 or 31, 1968. During that time he was actually serving his state sentence for offenses unrelated to the federal charges. Sanders v. McGuire, 5 Cir. 1968, 405 F.2d 881. The state court purported to give Willis credit for his presentence custody from October 31 to December 10, 1968. This did not help Willis, however, because his federal sentence is due to expire more than a year after his state terms. In previous proceedings, the District Court denied relief to Willis because the sentences being concurrent, the state already had given credit for the presen-tence jail time. The instant petition was denied as being a successive application for similar relief. 28 U.S.C.A. § 2244. This case is governed by our decision in Davis v. Attorney General, 5 Cir. 1970, 425 F.2d 238. There we held that if Davis “was denied release on bail because the federal detainer was lodged against him, then that was time ‘spent in custody in connection with the [federal] offense,’ [18 U.S.C.A. § 3568] since the detainer was issued upon authority of the appellant’s federal conviction and sentence.” 425 F.2d at 240. Accordingly the judgment of the District Court is affirmed in part and reversed in part; and the case is remanded for an evidentiary hearing on Willis’ contention that he should be accorded credit on his federal sentence for his presentence custody of October 31 to December 10,1968. Affirmed in part; reversed in part; and remanded. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir. 1969, 412 F.2d 981. . On authority of 18 U.S.C.A. § 3568 as amended in 1966; see United States v. Morgan, 5 Cir. 1970, 425 F.2d 1388. . The appellant’s official “commitment and diagnostic summary” sheet prepared by the Bureau of Prisons shows that he is credited with service of his federal sentence from December 30," }, { "docid": "6148470", "title": "", "text": "which a petition attacking a state court judgment must be brought. Section 2241(a) provides that “[wjrits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” In Ahrens v. Clark, the Supreme Court interpreted this provision to mean that a district court lacks subject matter jurisdiction if the prisoner or his custodian is not confined within the district court’s territorial boundaries. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). This interpretation proved unfortunate, however, because the district court that has jurisdiction over the prisoner frequently is not the most convenient forum in which to entertain the prisoner’s habeas petition. The necessary records and witnesses often are located near the sentencing court rather than the court with jurisdiction over the prisoner, and courts with prisons within their jurisdiction receive an inordinate proportion of habeas petitions. In response to this situation, Congress in 1966 passed 28 U.S.C. § 2241(d). Section 2241(d) provides: Where an application for a writ of habe-as corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. Section 2241(d) applies only to prisoners confined under the judgment of a state court. If the petitioner is a federal prisoner, or if the state sentencing court is in a different state from the prisoner or his custodian, the district court still must have jurisdiction over the prisoner or his custodian. In the instant case, the district court applied the rule applicable to federal prisoners to Story, who is confined under the judgment of a state court. Section 2241(d), however, directly applies to Story’s petition. The District Court for the Northern District of" }, { "docid": "3200249", "title": "", "text": "relief cannot be granted at this stage in the proceedings. We think it appropriate to note that a difficult procedural problem lurks just around the corner should Jackson exhaust his California state remedies. Jackson will have to decide whether he wishes to renew his collateral attack upon his Louisiana conviction in a United States District Court in Louisiana, or, instead, whether he prefers to recommence his collateral attack in a United States District Court in California. While it is clear that the California United States District Court for the district where Jackson is confined would have jurisdiction over Jackson’s habeas petition, Nelson v. George, supra, it is by no means clear that the district court in Louisiana could entertain Jackson’s petition. In Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, the Supreme Court interpreted the language of 28 U.S.C. § 2241(a), which provides that writs of habeas corpus may be granted by district courts “within their respective jurisdictions”. This language, the Supreme Court said, meant that only the district court for the dis trict in which the petitioner is detained or confined when the petition is filed may grant the writ of habeas corpus. Since Ahrens, though, the Fourth Circuit has held in Word v. North Carolina, 4 Cir.1969, 406 F.2d 352, that Ahrens is no longer viable, and that in appropriate circumstances a district court may entertain a habeas petition in the sentencing jurisdiction even if the petitioner is not confined or detained there. Other circuits have continued to follow Ahrens. E.g. U. S. ex. rel. Van Scoten v. Pennsylvania, 3 Cir.1968, 404 F.2d 767. There is strong reason, then, to doubt whether Ahr&ns is still good law. The Supreme Court expressly reserved judgment on the question in Nelson v. George, 399 U.S. 228 n. 5, 90 S.Ct. 1963, 26 L.Ed.2d 582 n. 5. See Developments in the Law —Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1160-65 (1970). Because of the importance and difficulty of the Ahrens-Word question, we believe Jackson would have every right to insist upon the appointment of counsel should he exhaust his" }, { "docid": "7917675", "title": "", "text": "state conviction on constitutional grounds. The District Court ruled it had no power to grant the specific relief sought, and then, treating Booker’s “Application” as a petition for a writ of habeas corpus, denied relief on the ground that habeas corpus “cannot be used to question the validity of a sentence not then being served”, citing McNally v. Hill, supra. The Eighth Circuit affirmed denial of the habeas corpus writ on the ground that the District Court lacked territorial jurisdiction to issue it under Ahrens. In doing so it stated (p. 243): “Booker is an inmate of the federal penitentiary at Atlanta, Georgia. His incarceration there is coneededly lawful and it has been continuous since prior to the filing of his petition in the Eastern District of Arkansas. Atlanta is in the Fifth Circuit and the Northern District of Georgia. * * The district court, therefore, has no jurisdiction to issue the writ. 28 U.S.C. § 2241(a); Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); Karp v. United States, 296 F.2d 564 (8 Cir. 1961), cert. denied 369 U.S. 867, 82 S.Ct. 1034, 8 L.Ed.2d 86; Hart v. Ohio Bureau of Probation and Parole [290 F.2d 550, 551 (6 Cir. 1961)]. * * *” In Allen v. United States, 327 F.2d 58 (5 Cir. 1964), the Ahrens case was cited in holding that Allen, then incarcerated in the United States Penitentiary at Leavenworth, Kansas, under a prison term imposed by an Oklahoma District Court, could not petition for a writ of habeas corpus in a Texas District Court challenging a parole violator’s warrant issued by the United States Board of Parole for Allen’s breach of parole incident to his sentence by the Texas District Court for violation of the Dyer Act. In doing so the Court, citing Ahrens, said (p. 59): “It would avail the petitioner nothing to consider his petition [in a post-conviction proceeding] as an application for writ of habeas corpus, as he was not in custody within the territorial limits of the court below at the time of the institution of this" }, { "docid": "3781220", "title": "", "text": "PER CURIAM: This appeal is taken from an order of the district court denying the petition of a federal convict for relief against the parole board. We affirm. Appellant’s petition, entitled an “Application for Issuance of Writ of Mandamus and Expedition (sic) Relief,” was considered by the district court as a petition for writ of habeas corpus. While the petition should properly have been considered as one seeking mandamus relief, failure to treat it as such did not prejudice appellant. Appellant originally sought relief in the United States District Court for the District of Columbia and his petition was transferred to the United States District Court for the Northern District of Georgia when it appeared that he was both sentenced and confined in the latter district. His petition sought an order requiring the United States Parole Board to explain why he was not granted parole under 18 U.S.C.A. §§ 4202 and 4203. These statutes, under certain conditions, allow parole to be granted when a prisoner has served one-third of his sentence. Appellant does not allege an abuse of discretion or that the board acted in an arbitrary or discriminatory manner. He simply argues that when a prisoner has met the conditions of 18 U.S.C.A. §§ 4202 and 4203, he is entitled, as a matter of right, to parole. Such a view of the parole statutes is contrary to the law. It is well settled that the determination of eligibility for parole is wholly within the discretion of the Parole Board. United States v. Frederick, 3 Cir., 1968, 405 F.2d 129; Cagle v. Harris, 8 Cir., 1965, 349 F.2d 404; Walker v. Taylor, 10 Cir., 1964, 338 F.2d 945; Hiatt v. Compagna, 5 Cir., 1949, 178 F.2d 42, affirmed 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639. Thus the district court’s dismissal of the petition was proper. Affirmed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto," }, { "docid": "6148469", "title": "", "text": "petition is filed.” Story is confined in the Wynne Unit of the TDC at Huntsville, Texas — a location outside of the jurisdiction of the District Court for the Northern District of Texas. The district court, therefore, dismissed the claim without prejudice to Story’s right to refile in the appropriate district court. A prisoner may bring a claim for good conduct time under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973) (§ 2254 habeas petition is sole remedy for state prisoner seeking speedier release from imprisonment based on application of good conduct time). Section 2241, however, provides the general jurisdictional basis for federal courts to consider challenges to both state and federal judgments. Section 2254 specifically confers jurisdiction on the federal courts to consider collateral attacks on state court judgments, Lehman v. Lycoming County Children’s Services, 458 U.S. 502, 509 n. 9, 102 S.Ct. 3231, 3236 n. 9, 73 L.Ed.2d 928 (1982), but § 2241, rather than § 2254, specifies the court in which a petition attacking a state court judgment must be brought. Section 2241(a) provides that “[wjrits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” In Ahrens v. Clark, the Supreme Court interpreted this provision to mean that a district court lacks subject matter jurisdiction if the prisoner or his custodian is not confined within the district court’s territorial boundaries. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). This interpretation proved unfortunate, however, because the district court that has jurisdiction over the prisoner frequently is not the most convenient forum in which to entertain the prisoner’s habeas petition. The necessary records and witnesses often are located near the sentencing court rather than the court with jurisdiction over the prisoner, and courts with prisons within their jurisdiction receive an inordinate proportion of habeas petitions. In response to this situation, Congress in 1966 passed 28 U.S.C. § 2241(d). Section 2241(d) provides: Where an application for a writ" }, { "docid": "3200248", "title": "", "text": "(and the detainer imposed upon him as a result of that conviction) “adversely affected the probability of his securing parole and the degree of security in which he was detained by [California] authorities.” 399 U.S. at 229, 90 S.Ct. at 1966, 26 L.Ed.2d at 582. But the Supreme Court affirmed denial of the writ because the petitioner had never given California the opportunity to decide what effect, if any, it would give to the North Carolina detainer for purposes of the petitioner’s custody. Noting that the Full Faith and Credit Clause does not require that sister States enforce a foreign penal judgment, the Supreme Court held that the petitioner had not exhausted his California remedies. Petitioner Jackson also alleges that his Louisiana conviction adversely affects his chances of parole, but, like George, Jackson has not given California a chance to indicate whether it will in fact attach any significance to the Louisiana conviction when it evaluates Jackson’s prospects for parole. Jackson’s petition falls squarely within the exhaustion rule of Nelson v. George, and federal habeas relief cannot be granted at this stage in the proceedings. We think it appropriate to note that a difficult procedural problem lurks just around the corner should Jackson exhaust his California state remedies. Jackson will have to decide whether he wishes to renew his collateral attack upon his Louisiana conviction in a United States District Court in Louisiana, or, instead, whether he prefers to recommence his collateral attack in a United States District Court in California. While it is clear that the California United States District Court for the district where Jackson is confined would have jurisdiction over Jackson’s habeas petition, Nelson v. George, supra, it is by no means clear that the district court in Louisiana could entertain Jackson’s petition. In Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, the Supreme Court interpreted the language of 28 U.S.C. § 2241(a), which provides that writs of habeas corpus may be granted by district courts “within their respective jurisdictions”. This language, the Supreme Court said, meant that only the district court for" }, { "docid": "18059202", "title": "", "text": "PER CURIAM: This appeal is from the district court’s denial of the appellant’s petition for a writ of mandamus. We affirm. Appellant has made a blanket request for free copies of his trial transcript and other records in his case, for the purpose of framing a motion to vacate his sentence under § 2255. He does not advert to any possible defects in his conviction which the documents will show, but merely claims that as an indigent he has a right to be furnished with all the records and files pertaining to his conviction. We have consistently held that where a federal prisoner has not attempted to file a petition collaterally attacking his conviction, he is not entitled to obtain copies of court records at the government’s expense under 28 U.S.C. § 2255 to search the record for possible error. Walker v. United States, 5th Cir. 1970, 424 F.2d 278; Harless v. United States, 5th Cir. 1964, 329 F.2d 397. As in Lucas v. United States, 6th Cir. 1970, 423 F.2d 683, this federal prisoner petitioner is under none of the special circumstances of the California state prisoner in Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970). We adhere to our decisions in Walker and Harless, supra. Affirmed. . It is appropriate to dispose of this pro se ease summarily pursuant to this Court’s local Rule 9(e) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981." }, { "docid": "1344013", "title": "", "text": "PER CURIAM: Bennett appeals from the district court’s denial of his petition for a writ of mandamus in which he sought to obtain free copies of his trial transcript and all other court documents pertaining to his conviction. We affirm. Although the appellant has no appeal or motion for collateral relief pending in any court, he asserts that as an indigent he is entitled to his own copy of his record in order to prepare a petition for post-conviction relief. We do not agree with this contention. To the contrary, we have consistently held that a federal prisoner has no absolute right to copies of court records to search for possible defects, merely because of his status as an indigent. Skinner v. United States, 5th Cir. 1970, 434 F.2d 1036 [1970]; Walker v. United States, 5th Cir. 1970, 424 F.2d 278; Harless v. United States, 5th Cir. 1964, 329 F.2d 397. In the recent case of Wade v. Wilson, 1970, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470, cited by appellant, the Supreme Court indicated that under “special circumstances” where state laws and procedure entitled the indigent to have access to his transcript, as on direct appeal, he can not thereafter be denied the right to borrow an existing transcript for the purpose of framing a petition collaterally attacking his conviction. No such “special circumstances” are alleged in the instant case, nor does the appellant allege that he is being unlawfully deprived of borrowed copies of the records and files in his case. We therefore perceive no compelling reason militating in favor of a departure from this court’s previous decisions, supra. See Lucas v. United States, 6th Cir. 1970, 423 F.2d 683. The judgment of the district court is affirmed. Affirmed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981." }, { "docid": "7917674", "title": "", "text": "proper court for his case. But Congress has conferred jurisdiction upon the United States District Courts to issue writs of habeas corpus ‘within their respective jurisdictions’. (28 U.S.C. § 2241(a)). The Supreme Court has held that this means the district in which the petitioner is detained when the petition is filed. Ahrens v. Clark, 1948, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898. Ashley is detained in Florida, not Washington.” Again, in Booker v. State of Arkansas, 380 F.2d 240 (8 Cir. 1967), Booker was sentenced by an Arkansas state court to serve a 7-year term in an Arkansas state penitentiary. He was placed on parole after having served one-third of his sentence. While on parole he was sentenced by a federal court to serve a 10-year term in the United States Penitentiary at Atlanta, Georgia. Arkansas lodged a detainer against Booker with the Atlanta prison. Later, he filed in the United States District Court for the Eastern District of Arkansas an “Application for Writ of Mandamus and Declaratory Judgment”, seeking to void his state conviction on constitutional grounds. The District Court ruled it had no power to grant the specific relief sought, and then, treating Booker’s “Application” as a petition for a writ of habeas corpus, denied relief on the ground that habeas corpus “cannot be used to question the validity of a sentence not then being served”, citing McNally v. Hill, supra. The Eighth Circuit affirmed denial of the habeas corpus writ on the ground that the District Court lacked territorial jurisdiction to issue it under Ahrens. In doing so it stated (p. 243): “Booker is an inmate of the federal penitentiary at Atlanta, Georgia. His incarceration there is coneededly lawful and it has been continuous since prior to the filing of his petition in the Eastern District of Arkansas. Atlanta is in the Fifth Circuit and the Northern District of Georgia. * * The district court, therefore, has no jurisdiction to issue the writ. 28 U.S.C. § 2241(a); Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); Karp v. United States, 296" }, { "docid": "20052838", "title": "", "text": "PER CURIAM: The appeal is taken from an order of the district court denying the writ of habeas corpus. We affirm. Appellant is presently incarcerated in the federal penitentiary at Atlanta for violations of 18 U.S.C. §§ 471, 472, and 708, passing and forging United States treasury checks and stealing mail. He was sentenced on January 21, 1959, to ten (10) years imprisonment. Appellant was twice released pursuant to the mandatory release provisions of 18 U.S.C. § 4163. On both occasions he violated the terms of release and was retaken on a parole violator warrant be fore the minimum supervisory period had expired. In both instances the parole board held that he had forfeited all prior accumulated good time. Appellant filed his petition in the district court claiming his right to immediate release on grounds that his sentence had expired. The court denied the petition stating that appellant, having violated the terms of his conditional release, is not entitled to credit for the time on parole and must serve the unexpired term of his sentence. A convict who is granted conditional release pursuant to § 4163 is considered as if released on parole. 18 U.S.C. § 4164. Buchanan v. Blackwell, 5th Cir. 1967, 372 F.2d 451. If he violates these conditions and is required to serve the remainder of his sentence, the time spent on parole shall not diminish the sentence. 18 U.S.C. § 4205; Clark v. Blackwell, 5th Cir. 1967, 374 F.2d 952; Buchanan v. Blackwell, supra; Smith v. Blackwell, 5th Cir. 1966, 367 F.2d 539. The judgment is affirmed. Affirmed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981." }, { "docid": "6224269", "title": "", "text": "earlier sentence for the time spent in custody on the invalidated Dyer Act conviction. It is clear to this Court that appellant is entitled to the relief sought. Had it not been for the intervention of the invalid Dyer Act sentence, the commencement of service of the remainder of his earlier sentence would have been advanced. See Goodwin v. Page, 10th Cir. 1969, 418 F.2d 867; Jenkins v. United States, 10th Cir. 1968, 389 F.2d 765; Tucker v. Peyton, 4th Cir. 1966, 357 F.2d 115; United States v. Maroney, M.D.Penn.1967, 264 F.Supp. 684. It is un necessary for us to determine whether the appellant should be credited with jail time from March 5, 1968, the date of his arrest, or from October 16, 1968, the date of the invalid conviction, since he is entitled to immediate unconditional release in either case. We do not intend that this opinion be interpreted as standing for the principle that prisoners may “bank” time. Rather, we intend that it be restricted to eases strictly within the factual situation here involved, i. e. time served on an invalid sentence at a time when a presently existing sentence could have been served. The judgment below is reversed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981." }, { "docid": "4480115", "title": "", "text": "held that a prison regulation prohibiting inmate assistance in the drafting of pro se legal papers constituted a deprivation of due process of law, where no “reasonable alternative” was available to furnish legal advice. That court noted that the existence of programs wherein legal aid is provided to prisoners by law students “indicates that techniques are available to provide alternatives.” Appellant alleges that the legal services which Emory University Law School renders to the prisoners at the Atlanta Penitentiary is not a “reasonable alternative” to inmate assistance since the law school is overwhelmed with cases, and therefore it is unable to act upon some prisoners' requests for as long as eighteen months. We believe that an eighteen-month delay is an unreasonable length of time for a prisoner to wait in order to file a petition for post-eonviction relief. See 28 U.S.C. § 2243, which provides for speedy adjudication of the merits of habeas corpus cases. The district court, however, failed to make any findings relative to the veracity of appellant’s allegation that such a delay exists. We, therefore, remand this case to the district court for a determination of the issue. Affirmed in part; vacated and remanded in part. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981. . In his amended petition to the District Court the appellant has attached a copy of the prison’s Policy A-7300.36 dated March 2, 1970, which provides: “14. LEGAL PAPERS AND BOOKS Writs, petitions, court decisions, correspondence from attorneys, or other legal papers pertaining to an individual’s present case or to pending cases, may be kept in the inmate’s living quarters. These items, as well as all others, must be stored in a neat and orderly manner. The volume of items, as well as method of storage, must be kept to standards that permit effective security searches and inspections with a minimum amount" }, { "docid": "4390125", "title": "", "text": "However, since the Justice of the Supreme Judicial Court of the State of Maine did not summarily dismiss Duncan’s petition for habeas corpus but decided it on the merits, we must assume that the remedy afforded by that writ is still available to one in his situation. Giving Duncan the benefit of the doubt we conclude that he has exhausted the corrective processes of the State of Maine to the extent that they are available to him. This brings us face to face with the question whether a district court has jurisdiction to entertain a petition for habeas corpus by one originally held in custody in the district pursuant to the judgment of a state court but who at the time of application for the writ is being held outside the court’s territorial jurisdiction by federal authorities acting under a contract entered into pursuant to Title 18 U.S.C. § 5003 and implementing state legislation. Ahrens v. Clark, 1948, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898, upon which the court below relied, is not squarely in point. In the first place it was decided almost four years before § 5003 was enacted into law. In the second place the petitioners in that case were not being held in custody pursuant to the judgment of a State court. When they filed applications for habeas corpus in the District Court for the District of Columbia they were being held in New York by direction of the Attorney General for deportation to Germany. Nevertheless, we think the decision in that case rules the case at bar, for in it the Court held categorically on the basis of presumed congressional policy supported by legislative history that the words “within their respective jurisdictions” as used in 28 U.S.C. § 452 (1946 Ed.), the predecessor statute to § 2241(a) of Title 28 U.S. C., strictly limited the jurisdiction of the district courts to inquiries into the causes of restraints of liberty of those confined or restrained within their respective territorial jurisdictions. Taking the view that, at least insofar as prisoners held within the territorial jurisdiction" }, { "docid": "12990918", "title": "", "text": "trial, the court, sitting without a jury, found the appellant not guilty by reason of insanity. As authorized by the provisions of F.S..A. § 919.11 relative to such verdicts, the court on March 26, 1969 ordered the appellant committed to the hospital for care and treatment. The transcript of the psychiatric testimony and the order committing the appellant are in the record of TCA 1532, which is filed as an exhibit herein. In TCA 1532, the district court held further, that the circumstances of the appellant’s extradition did not constitute grounds for habeas relief. We agree with this ruling for reasons which we have more fully stated in the appellant’s other case lately pending here, Collins v. State of Florida, 5th Cir. 1970, 432 F.2d 60. There we also pointed out that the appellant has an available remedy in the Florida state courts to test the legality of his present detention in the hospital. We find no error in the district court’s denial of habeas corpus relief in the case sub judice. Concerning appellant’s complaint that he is being denied full access to his monies and other property by the hospital, the district court held as follows: “ * * * Necessarily consonant with these findings of legal commitment is the additional finding that the authorities in charge at the hospital may properly supervise the handling and disbursement of monies of those legally committed to the institution as those authorities are in the nature of de facto guardians of those persons confined thereto. See Chapter 394 of Florida Statutes, Sections 394.05 and 394.22(1) [F.S.A.].” We find no error in the judgment of the district court, which accordingly is hereby affirmed. Affirmed. . 28 U.S.C. § 2244. . Disposed of pursuant to this Court’s Local Rule 9(c) (2), appellant having failed to file a brief within time fixed by Rule 31, F.R.A.P., Kimbrough v. Beto, Director, 5 Cir. 1969, 412 F.2d 981." }, { "docid": "20368429", "title": "", "text": "PER CURIAM: It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), the appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, 412 F.2d 981 (5th Cir. 1969). We affirm the judgment of the district court, for the reasons well stated in its unpublished final order, which is attached as an appendix to this opinion. Affirmed. APPENDIX ORDER OF DISMISSAL This is a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is currently in state custody serving a five year sentence for larceny, which sentence is the maximum allowed by statute for that crime. In his petition he seeks to expunge two prior convictions. In November 1958 petitioner was sentenced to one year in the state penitentiary after pleading guilty to larceny of an automobile. In April 1962 a judge sitting without a jury found him guilty of breaking and entering and sentenced him to one year in the state penitentiary. As to the first of these convictions (for larceny of an automobile) petitioner alleges that the State violated his right under F.S.A. § 932.38, which requires notice to parents or guardians of unmarried minors charged with a crime. As to the second conviction (for breaking and entering) petitioner claims he was denied an attorney in violation of his rights under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and the cases making Gideon retroactive, see, e. g., United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 310-312 (2d Cir. 1964), cert. den., LaVallee v. Durocher, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048. I do not reach these claims, however. I find there is no jurisdiction to attack either of these sentences as they have already been served. Neither sentence is within the exceptions of Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), where the sentence had expired by the time the court considered the habeas petition but the petition had" }, { "docid": "7917679", "title": "", "text": "conclusion that a Federal District Court has no jurisdiction to issue the writ if the person detained is not within the territorial jurisdiction of the court when the petition is filed, Ahrens v. Clark, 1948, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898. Moreover, it is fundamental that habeas corpus will not lie if the person seeking the writ is not in physical custody of the official to whom the writ is directed, Weber v. Squier, 1941, 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209; Strand v. Schmittroth, 9 Cir., 1957, 251 F.2d 590, 602. The defendant, the Parole Director of Virginia, has neither actual nor constructive custody of the petitioner.” In consonance with what has been said, the Order of the District Court denying Van Scoten’s application for a writ of habeas corpus will be affirmed on the ground that the District Court was without territorial jurisdiction to entertain it. . “When constabulary duty’s to be done— “To be done, “The policeman’s lot is not a happy one— “Happy one.” Sir William S. Gilbert — The Pirates of Penzance, Act II. . A limited exception to this rule was made by statutory enactment in 1966 of Section 2241(d), 28 U.S.C.A. It provides that in a state which contains more than one federal judicial district, an application for habeas corpus relief by a prisoner of that state may be filed either in the district in which he is in custody or in the district within which he was convicted and sentenced. . On September 29, 1965, the Pennsylvania Supreme Court in Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613, radically changed the law of Pennsylvania by eliminating the doctrine of “prematurity” and permitting challenge by habeas corpus of a sentence not yet being served." }, { "docid": "12006459", "title": "", "text": "PER CURIAM: The order of the District Court in this cause, dismissing the Petitioner’s’ fourth petition for the writ of habeas corpus for failure to exhaust state remedies is Affirmed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir., 1969, 412 F.2d 981." }, { "docid": "23270576", "title": "", "text": "3568] since the detainer was issued upon authority of the appellant’s federal conviction and sentence.” 425 F.2d at 240. Accordingly the judgment of the District Court is affirmed in part and reversed in part; and the case is remanded for an evidentiary hearing on Willis’ contention that he should be accorded credit on his federal sentence for his presentence custody of October 31 to December 10,1968. Affirmed in part; reversed in part; and remanded. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir. 1969, 412 F.2d 981. . On authority of 18 U.S.C.A. § 3568 as amended in 1966; see United States v. Morgan, 5 Cir. 1970, 425 F.2d 1388. . The appellant’s official “commitment and diagnostic summary” sheet prepared by the Bureau of Prisons shows that he is credited with service of his federal sentence from December 30, 1968, but that he has been accorded no credit thereon for any presentence time." } ]

[ { "docid": "20312192", "title": "", "text": "MEMORANDUM DECISION AND ORDER COGAN, District Judge. Plaintiffs have filed suit against Chinese vitamin C manufacturers, alleging that they engaged in an illegal cartel to fix prices and limit supply for exports, including those to the United States. The four main defendants are Hebei Welcome Pharmaceutical Co. Ltd. (“Hebei Welcome” or “Welcome”), Aland (Jiangsu) Nutraceutical Co., Ltd. (“Jiangsu Jiangshan” or “JJPC”), Northeast Pharmaceutical Co. Ltd. (“NEPG” or “Northeast”) and Weisheng Pharmaceutical Co. Ltd. (“Weisheng”) (collectively “defendants”). Plaintiffs bring this putative class action under Section 1 of the Sherman Act and Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 4, 16. Plaintiffs seek treble damages and injunctive relief against all defendants except for Northeast, against whom only injunctive relief is sought. Defendants do not dispute that the cartel agreements at issue violate the antitrust laws save for one primary defense: that they were compelled by the Chinese government to fix prices. They have filed a motion for summary judgment based upon that defense and the related doctrines of comity and act of state. The three doctrines upon which defendants rely recognize that a foreign national should not be placed between the rock of its own local law and the hard place of U.S. law. However, that concern is insufficient to protect defendants from their acknowl edged violation of the antitrust laws because, here, there is no rock and no hard place. The Chinese law relied upon by defendants did not compel their illegal conduct. Although defendants and the Chinese government argue to the contrary, the provisions of Chinese law before me do not support their position, which is also belied by the factual record. I decline to defer to the Chinese government’s statements to the court regarding Chinese law. Accordingly, defendants’ motion for summary judgment is denied. (1) BACKGROUND By November 2001, defendants, who faced much lower manufacturing costs than their foreign competitors, had captured over 60% of the worldwide market for vitamin C. China’s share of vitamin C imports to the United States rose from 60% in 1997 to over 80% by 2002. Around this time, a" } ]

[ { "docid": "8300644", "title": "", "text": "MEMORANDUM AND ORDER TRAGER, District Judge. Plaintiffs in this case allege that defendants, Chinese corporations that manufacture and sell vitamin C, formed an illegal cartel to fix prices and limit supply for exports of vitamin C, including those to the United States. Plaintiffs bring this action under Section 1 of the Sherman Act and Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 4, 16. Defendants now move to dismiss, on the grounds that their price-fixing activities were compelled by the Chinese government. Background The following facts, which are drawn from the complaints, are assumed to be true for purposes of this motion to dismiss. China began producing vitamin C in the late 1950s, and by 1969 its scientists had developed a two-stage fermentation process to manufacture vitamin C, resulting in a significant cost advantage compared to European producers. China began employing this technology commercially in the 1980s. Chinese vitamin C manufacturers were able to overcome an early reputation for poor product quality, and now supply a full range of vitamin C products at premium prices. Most sales of vitamin C are of bulk ascorbic acid. In the early 1990s, European manufacturers F. Hoffmann LaRoche, Ltd., Merck KgaA, and BASF AG and the Japanese company Takeda Chemical Industries, Ltd. dominated the worldwide vitamin C market. From 1990 to 1995, these companies conspired to suppress competition and fix prices for vitamin C. They were sued in In re Vitamins Antitrust Litigation, MDL No. 1285, Misc. No. 99-0197 (D.D.C.) (Hon. Thomas F. Hogan). Competition from Chinese manufacturers of vitamin C undermined this early conspiracy during the 1990s, until it reportedly disbanded in late 1995. During 1995, it was reported that thirteen Chinese manufacturers of vitamin C met and agreed to form their own cartel to limit production of vitamin C to stabilize prices. This attempt at market control reportedly failed. From the end of 1995, world vitamin C prices slumped and were cut in half by early 1996. By 1997, there were as many as 22 competitors in the Chinese vitamin C manufacturing market. Strong competition by Chinese competitors during" }, { "docid": "20312300", "title": "", "text": "between defendants, the Chamber and the Ministry that, given the evolving changes in Chinese law, was still being sorted out. Although Wang Qi notes that the Chamber “will continue to be a major force in coordinating companies” and that “go[ing] beyond [the] coordination of the [Chamber]” could have some negative consequences, his e-mail suggests that the latter action was, nonetheless, still a potential option. Moreover, it is not clear that the potential negative repercussions of such action would rise to the level necessary to constitute compulsion. I conclude that Chinese law did not compel defendants’ conduct in the post-filing period. Therefore, summary judgment must also be denied as to the post-filing period. CONCLUSION For the reasons explained above, defendants’ motion for summary judgment is denied. SO ORDERED. . Two similar price-fixing suits are currently pending against Chinese producers of magnesite and bauxite. See Animal Science Prods., Inc. v. China Nat. Metals & Minerals Import & Export Corp., 702 F.Supp.2d 320 (D.N.J.2010), vacated, 654 F.3d 462 (3d Cir.2011); Resco Prods., Inc. v. Bosai Minerals Group Co., Ltd., No. 06-235, 2010 WL 2331069 (W.D.Pa. June 4, 2010). . There are also other defendants that do not manufacture vitamin C, including JSPC America Inc. (\"JSPCA”) a subsidiary of JJPC, Shijiazhuang Pharmaceutical (USA) (\"Shijiazhuang”), Inc., an affiliate of Weisheng, and China Pharmaceutical Group Ltd. (\"China Pharmaceutical”), the owner of Weisheng and Shijiazhuang. The complaint also names North China Pharmaceutical Group (\"NCPC Group Corp.”), North China Pharmaceutical Group Co. Ltd., (\"NCPC Ltd.”) and North China Pharmaceutical Group Corporation Import and Export Trade Co., Ltd. (\"NCPC I&E”) (collectively \"North China defendants”). Welcome, is a partially-owned subsidiary of NCPC Ltd., which is in turn, a partially-owned subsidiary of NCPC Group Corp. NCPC I&E is an indirectly owned subsidiary of NCPC Group Corp. that purchases vitamin C from Chinese companies including Welcome. . The Ministry was originally known as the Ministry of Foreign Trade and Economic Cooperation (or \"MOFTEC”). For ease of reference, \"the Ministry” is used to refer to both entities. . This case was reassigned to me in January 2011 following the death of my dear" }, { "docid": "3966064", "title": "", "text": "WELLFORD, Circuit Judge. Defendants, S.E. Johnson Company (Johnson) and other affiliated entities (referred to collectively as Johnson Companies), appeal the judgments and orders entered by the district court against them following a unanimous jury verdict for plaintiffs in this private antitrust action for alleged violations of Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2, and Section 7 of the Clayton Antitrust Act, 15 U.S.C. § 18. Plaintiffs, Arthur S. Langenderfer, Inc. (Langenderfer), and its sister company, Northern Ohio Asphalt Paving Co. (NOAP), claimed defendants had combined and conspired to drive plaintiffs out of business by various monopolistic and anticompetitive practices including, but not limited to, predatory pricing and illegal acquisitions. The jury found actual damages of $982,117.00. The district court trebled the damage award to $2,946,351.00 and enjoined future acquisitions and anticompetitive acts, pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26. Defendants contend the district court erred by (1) failing to apply the appropriate legal standard to plaintiff’s allegation of predatory pricing; (2) allowing the jury to find a violation of Section 7 of the Clayton Act, 15 U.S.C. § 18, on the basis of purely intrastate acquisitions; and (3) allowing damages for losses suffered outside the relevant market and beyond the statute of limitations period. Langenderfer cross-appeals from the district court’s refusal to order divestiture and the refusal to allow post-trial intervention by a company affiliated with Langenderfer. We vacate the judgments below because of prejudicial error on the issues of predatory pricing and intrastate acquisitions. FACTS Langenderfer and S.E. Johnson were competitors for many years in the business of supplying “hot-mix,” stone, sand and contracting services for highway construction and repair in northwest Ohio. Most of this work is administered and paid for by governmental bodies which invite competitive bids from paving contractors. Federal and state highway projects are administered by the Ohio Department of Transportation (ODOT) and the Ohio Turnpike Commission (OTC) with substantial use of federal funds. For the purpose of this appeal the parties have stipulated the relevant product and geographic market" }, { "docid": "8300645", "title": "", "text": "at premium prices. Most sales of vitamin C are of bulk ascorbic acid. In the early 1990s, European manufacturers F. Hoffmann LaRoche, Ltd., Merck KgaA, and BASF AG and the Japanese company Takeda Chemical Industries, Ltd. dominated the worldwide vitamin C market. From 1990 to 1995, these companies conspired to suppress competition and fix prices for vitamin C. They were sued in In re Vitamins Antitrust Litigation, MDL No. 1285, Misc. No. 99-0197 (D.D.C.) (Hon. Thomas F. Hogan). Competition from Chinese manufacturers of vitamin C undermined this early conspiracy during the 1990s, until it reportedly disbanded in late 1995. During 1995, it was reported that thirteen Chinese manufacturers of vitamin C met and agreed to form their own cartel to limit production of vitamin C to stabilize prices. This attempt at market control reportedly failed. From the end of 1995, world vitamin C prices slumped and were cut in half by early 1996. By 1997, there were as many as 22 competitors in the Chinese vitamin C manufacturing market. Strong competition by Chinese competitors during this period allowed the Chinese to drive European manufacturers from the market. By the end of the 1990s, the reduction in vitamin C prices and other factors resulted in industry consolidation in China to four major manufacturers, all of which are defendants in this case— Hebei Welcome Pharmaceutical Co. Ltd. (“Hebei Welcome”), Jiangsu Jiangshan Pharmaceutical Co. Ltd. (“Jiangsu Jiang-shan”), Northeast Pharmaceutical Group Co. Ltd. (“NEPG”) and Weisheng Pharmaceutical Co. Ltd. (“Weisheng”) (collectively, the “defendant manufacturers”). The price of vitamin C remained relatively low in 2001, by which time Takeda had withdrawn from the market and sold its manufacturing capacity to BASF. Merck and Roche also announced their intention to withdraw from the vitamin C market. BASF announced that it would halt its new production line in Takeda, Japan. By 2001, defendants had captured approximately 60 percent of the worldwide market for vitamin C. Currently, defendants control 82 thousand metric tons, or approximately 68 percent, of the worldwide production capacity for vitamin C. According to the complaints, beginning in December 2001, defendants and their co-conspirators formed" }, { "docid": "17118813", "title": "", "text": "Surreply”); the oral argument; and, the entire record herein, the Court will grant plaintiffs’ Motions for Class Certification and certify the proposed Choline Chloride Class and the Vitamin Products Class. I. Background The background information presented below is taken directly from plaintiffs’ Second Consolidated Amended Vitamins Class Action Complaint (“Vitamins Complaint”) filed on June 1, 2000 and plaintiffs’ Third Consolidated Amended Choline Chloride Class Action Complaint (“Choline Chloride Complaint”) filed on November 21, 2000. As such, the facts presented below are not factual findings. Plaintiffs in this consolidated action allege that defendants participated in a massive, long-running international horizontal conspiracy to (1) raise, fix, maintain and stabilize the prices of vitamins, vitamin premixes, bulk vitamin products (A, C, E, Bl, B2, B3, B5, B6, B12, H, beta carotene, astaxanthin, can-thaxanthin, and/or vitamin premixes), and choline chloride, and (2) allocate customers or accounts among themselves, in violation of Section 1 of the Sherman Act, 15 U.S.C. § l. Plaintiffs allege that defendants conspired to control the global market for vitamins, vitamins premixes and choline chloride between at least 1988 and 1998. Plaintiffs also allege that defendants avoided detection of the conspiracy, for approximately ten years, through a scheme of concealment which included: discussing and agreeing upon the prices, volume of sales, and markets in covert meetings and conversations; limiting knowledge of the conspiracy to high level personnel; deliberately refraining from creating documents; destroying records; refraining from submitting bids and submitting falsified bids; issuing agreed-upon price announcements and price quotations; formulating and rehearsing a cover story denying the vitamin cartel activity in an attempt to avoid further government investigation; and, engaging in other activities designed to keep the existence of the conspiracy hidden. In 1998, the first class suit was filed on behalf of direct purchasers of vitamins alleging violations of antitrust laws. In 1999 the United States Department of Justice announced that several companies had pled guilty to fixing the price of certain vitamins in violation of Section 1 of the Sherman Act. Many more lawsuits followed, all of which have been consolidated for pretrial purposes before this Court. As set" }, { "docid": "14225802", "title": "", "text": "commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and (2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section. If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States. Id. Appellees (“vitamin companies”) are manufacturers and distributors of vitamins and vitamin products. Appellants (“foreign purchasers” or “foreign plaintiffs”) are foreign corporations domiciled in various foreign countries, who purchased vitamins abroad from the vitamin companies or their alleged co-conspirators from January 1, 1988 to February 1999, for delivery outside the United States. The plaintiffs in this case originally filed a class action suit on behalf of foreign and domestic purchasers of vitamins, alleging “a massive and long-running conspiracy” among the vitamin companies and their co-conspirators “with the purpose and effect of fixing prices, allocating market share, and committing other unlawful practices designed to inflate the prices of various vitamins ... sold to the Plaintiffs and other purchasers both within and outside the United States.” Amend. Compl. at ¶ 1, Joint Appendix (“J.A.”) 15-16. The plaintiffs sought injunctive relief and damages under § 1 of the Sherman Act; §§ 4 and 16 of the Clayton Act; the antitrust laws of relevant foreign nations; and international law. Id. at ¶ 7, J.A. 19. The vitamin companies moved to dismiss the suit as to the foreign plaintiffs pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction under the federal antitrust laws, and for lack of standing under the federal antitrust laws. They also urged the District Court to decline to exercise supplemental jurisdiction over the foreign law claims, and to dismiss the international law claims for failure to state a claim upon which relief may be granted. The District Court held that it lacked subject matter jurisdiction under FTAIA over the foreign plaintiffs’ claims. See Empar gran S.A." }, { "docid": "20312301", "title": "", "text": "Ltd., No. 06-235, 2010 WL 2331069 (W.D.Pa. June 4, 2010). . There are also other defendants that do not manufacture vitamin C, including JSPC America Inc. (\"JSPCA”) a subsidiary of JJPC, Shijiazhuang Pharmaceutical (USA) (\"Shijiazhuang”), Inc., an affiliate of Weisheng, and China Pharmaceutical Group Ltd. (\"China Pharmaceutical”), the owner of Weisheng and Shijiazhuang. The complaint also names North China Pharmaceutical Group (\"NCPC Group Corp.”), North China Pharmaceutical Group Co. Ltd., (\"NCPC Ltd.”) and North China Pharmaceutical Group Corporation Import and Export Trade Co., Ltd. (\"NCPC I&E”) (collectively \"North China defendants”). Welcome, is a partially-owned subsidiary of NCPC Ltd., which is in turn, a partially-owned subsidiary of NCPC Group Corp. NCPC I&E is an indirectly owned subsidiary of NCPC Group Corp. that purchases vitamin C from Chinese companies including Welcome. . The Ministry was originally known as the Ministry of Foreign Trade and Economic Cooperation (or \"MOFTEC”). For ease of reference, \"the Ministry” is used to refer to both entities. . This case was reassigned to me in January 2011 following the death of my dear colleague, Judge Trager. . Plaintiffs do not have a Chinese law expert and, instead, attempt to make their case by relying on the plain language of: (1) directives issued by the Ministry; (2) charter documents of the Chamber and its sub-committee that dealt with the vitamin C; and (3) public statements made by the Chinese government and various Chambers to the World Trade Organization (\"WTO”) and the United States government. . The record includes various regulatory documents issued by the Ministry that have various titles such as “Regulations,” \"Decision” and \"Notice.” These types of documents are collectively referred to herein as \"governmental directives.” . In the WTO Proceeding, the United States and other countries challenged Chinese export restrictions on certain raw materials. Although vitamin C is not at issue in the WTO Proceeding, one of the raw materials in dispute was, like vitamin C, also subject to verification and chop. . The 1997 Charter was enacted on October 11, 1997, which is prior to the promulgation of the 1997 Notice (November 27, 1997), the effective" }, { "docid": "20846651", "title": "", "text": "MEMORANDUM OPINION AND ORDER CARL O. BUE, Jr., District Judge. In this private antitrust action for treble damages and injunctive relief pursuant to sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, plaintiffs seek preliminary injunctive relief and partial summary judgment. In plaintiffs’ original complaint it is alleged that defendants, Anheuser-Busch, Inc. (AnheuserBusch) and Jos. Schlitz Brewing Company (Schlitz) have (1) engaged with their respective wholesale distributors in price fixing arrangements in violation of section 1 of the Sherman Act, 15 U.S.C. § 1; (2) engaged in an attempt to monopolize the Texas beer industry in violation of section 2 of the Sherman Act, 15 U.S.C. § 2; and (3) engaged in territorial price discrimination in violation of section 2(a) of the RobinsonPatman Act, 15 U.S.C. § 13(a). The conduct of Anheuser-Busch and Schlitz is claimed to have substantially lessened competition in the Texas beer industry. As a result of these activities, plaintiffs seek some $18 million in actual damages and an injunction permanently enjoining Anheuser-Busch and Schlitz from combining with their wholesale distributors to violate the antitrust laws to plaintiffs’ injury. For purposes of the present hearing on the preliminary injunction pending a trial on the merits and on the motion for partial summary judgment only the alleged violation of section 1 of the Sherman Act need be considered. There is no assertion by plaintiffs that Anheuser-Busch and Schlitz combined, conspired or in any other manner acted in concert in any of the alleged violations of the antitrust laws. This Court, accordingly, granted defendants’ motion for severance because of misjoinder of parties pursuant to Rule 20, Fed.R.Civ.P. However, since there is a common question of law and fact involved in this action as asserted against Anheuser-Busch and Schlitz, the Court consolidated the actions pursuant to Rule 42(a), Fed.R.Civ.P., for purposes of the hearing on the motion for preliminary injunction. Pearl Brewing Company (Pearl), is engaged in the business of brewing a regional or popular priced beer in plants in San Antonio, Texas, and St. Joseph, Missouri. Approximately 95 percent of the beer brewed by Pearl" }, { "docid": "4550475", "title": "", "text": "MEMORANDUM OPINION HOGAN, Chief Judge. Pending before the Court are three contested motions: (1) Defendants’ motion to stay all further proceedings pending resolution of their Federal Rule of Civil Procedure 23(f) petition currently pending before the Court of Appeals; (2) Class Plaintiffs’ motion to quash subpoenas issued by Defendants to absent class members; and (3) Class Plaintiffs’ motion to bifurcate trial pursuant to Federal Rule of Civil Procedure 42(b). Upon careful consideration of each motion, the oppositions and replies thereto, and the entire record herein, the Court will grant Defendants’ motion to stay all matters pending a decision from the Court of Appeals on the pending Rule 23(f)' petition and thus hold in abeyance Class Plaintiffs’ motions. I. BACKGROUND The four named Class Plaintiffs in this consolidated MDL action — Advocate Health Care (“Advocate”), St. Charles Hospital and Rehabilitation Center (“St. Charles”), Dik Drug Company (“Dik Drug”), and Harvard Pilgrim Health Care, Inc. (“Harvard Pilgrim”) — have brought this lawsuit as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and a class of direct purchasers of generic anti-anxiety drugs known as lorazepam and clorazepate during the period January 12, 1998 through the present. They claim that Defendants— Mylan Laboratories, Inc. (“Mylan Laboratories”), Mylan Pharmaceuticals, Inc. (“Mylan Pharmaceuticals”), UDL Laboratories, Inc. (“UDL”), Cambrex Corporation (“Cam-brex”), Profarmaco S.R.L. (“Profarmaco”), Gyma Laboratories of America, Inc. (“Gyma”), and SST Corporation (“SST”)— conspired to monopolize, monopolized, and fixed prices of lorazepam and clorazepate, in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2. They further claim that as a result of Defendants’ anticompeti-tive behavior, they paid much higher prices than they would have paid in a competitive market and thus seek treble-damages under the Clayton Act, 15 U.S.C. § 15, for the overcharges they paid. On July 2, 2001, the Court denied Defendants’ motion to dismiss this class action and granted the plaintiffs’ motion for class certification. In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12 (D.D.C.2001). Defendants then filed a petition for review with the Court of Appeals, pursuant to" }, { "docid": "14225801", "title": "", "text": "antitrust laws,” and provides for treble damages. Id. § 15(a). Section 16 of ■ the Clayton Act entitles “[a]ny - person, firm, corporation or association ... to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws.... ” Id § 26. In 1982, Congress enacted FTAIA, which amended the Sherman Act to make the Sherman Act inapplicable to non-import foreign commerce unless the conduct has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce, and “such effect gives rise to a claim under” the Sherman Act. Id. § 6a. The text of FTAIA provides, in full: Sections 1 to 7 of this title shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless- (1) such conduct has a direct, substantial, and reasonably foreseeable effect- (A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations; or (B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and (2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section. If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States. Id. Appellees (“vitamin companies”) are manufacturers and distributors of vitamins and vitamin products. Appellants (“foreign purchasers” or “foreign plaintiffs”) are foreign corporations domiciled in various foreign countries, who purchased vitamins abroad from the vitamin companies or their alleged co-conspirators from January 1, 1988 to February 1999, for delivery outside the United States. The plaintiffs in this case originally filed a class action suit on behalf of foreign and domestic purchasers of vitamins, alleging “a massive and long-running conspiracy” among the vitamin companies and their co-conspirators “with the purpose and effect of" }, { "docid": "14225803", "title": "", "text": "fixing prices, allocating market share, and committing other unlawful practices designed to inflate the prices of various vitamins ... sold to the Plaintiffs and other purchasers both within and outside the United States.” Amend. Compl. at ¶ 1, Joint Appendix (“J.A.”) 15-16. The plaintiffs sought injunctive relief and damages under § 1 of the Sherman Act; §§ 4 and 16 of the Clayton Act; the antitrust laws of relevant foreign nations; and international law. Id. at ¶ 7, J.A. 19. The vitamin companies moved to dismiss the suit as to the foreign plaintiffs pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction under the federal antitrust laws, and for lack of standing under the federal antitrust laws. They also urged the District Court to decline to exercise supplemental jurisdiction over the foreign law claims, and to dismiss the international law claims for failure to state a claim upon which relief may be granted. The District Court held that it lacked subject matter jurisdiction under FTAIA over the foreign plaintiffs’ claims. See Empar gran S.A. v. F. Hoffman-La Roche, Ltd., 2001 WL 761360, at 2-4 (D.D.C. June 7, 2001). The “critical question in this case,” the District Court stated, “is whether allegations of a global price fixing conspiracy that affects commerce both in the United States and in other countries gives persons injured abroad in transactions otherwise unconnected with the United States a remedy under our antitrust laws.” Id. at 2. The District Court held that, because the conspiracy’s effect on U.S. commerce did not cause the foreign purchasers’ injury, the court did not have jurisdiction over the foreign purchasers’ claims. See id. at 2-4. Because the District Court dismissed the foreign purchaser’s federal claims for lack of subject matter jurisdiction, it found that it did not need to reach the issue of standing with respect to the foreign plaintiffs. See id. at 5. The District Court declined to exercise supplemental jurisdiction over the foreign purchasers’ foreign law claims, because “these foreign law claims raise novel and complex issues of foreign law, the court has already dismissed all federal claims" }, { "docid": "12271141", "title": "", "text": "of a failure to state a claim under federal law. We decline to resolve the question, because it was not argued by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1). No petitions for panel rehearing or rehearing en banc will be considered. OPINION FISHER, Circuit Judge: Plaintiff-appellant Centerprise International, Ltd. (“Centerprise”), a British computer manufacturer that purchased dynamic random access memory (“DRAM”) outside of the United States, appeals the district court’s dismissal of its complaint for lack of subject matter jurisdiction under the Foreign Trade Antitrust Improvement Act of 1982 (“FTAIA”), 15 U.S.C. § 6a, amending the Sherman Act, 15 U.S.C. § 1-7. Defendants-appellees are U.S. and foreign manufacturers and sellers of DRAM, a type of high-density memory used in personal computers and other electronic devices. We affirm. I. Background Centerprise is a British corporation that uses DRAM in the manufacture of its computers. DRAM is a common type of memory chip that is sold around the world. According to Centerprise, DRAM is “a readily transportable commodity product with multiple firms offering essentially identical parts.” Centerprise purchased DRAM outside of the United States from the defendants, various memory companies. Centerprise brought this antitrust class action in May 2005 on behalf of itself and all others similarly situated, pursuant to §§ 4(a), 12 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 22 and 26, seeking injunctive relief and damages, premised on defendants’ alleged violations of federal antitrust laws, including § 1 of the Sherman Act. Centerprise alleged that the defendants engaged in a global conspiracy to fix DRAM prices, raising the price of DRAM to customers in both the United States and foreign countries. Specifically, Center-prise asserted that the domestic effect of the defendants’ anticompetitive conduct— higher DRAM prices in the United States — gave rise to its foreign injury of having to pay higher DRAM prices abroad because the defendants could not have raised prices worldwide and maintained their global price-fixing arrangement without fixing the DRAM prices in the" }, { "docid": "17118814", "title": "", "text": "at least 1988 and 1998. Plaintiffs also allege that defendants avoided detection of the conspiracy, for approximately ten years, through a scheme of concealment which included: discussing and agreeing upon the prices, volume of sales, and markets in covert meetings and conversations; limiting knowledge of the conspiracy to high level personnel; deliberately refraining from creating documents; destroying records; refraining from submitting bids and submitting falsified bids; issuing agreed-upon price announcements and price quotations; formulating and rehearsing a cover story denying the vitamin cartel activity in an attempt to avoid further government investigation; and, engaging in other activities designed to keep the existence of the conspiracy hidden. In 1998, the first class suit was filed on behalf of direct purchasers of vitamins alleging violations of antitrust laws. In 1999 the United States Department of Justice announced that several companies had pled guilty to fixing the price of certain vitamins in violation of Section 1 of the Sherman Act. Many more lawsuits followed, all of which have been consolidated for pretrial purposes before this Court. As set forth in the Class Complaints, the defendants are manufacturers of raw vitamins (synthetic and natural and in dry and oil form), vitamins premixes, bulk vitamins, and choline chloride. Defendants sell vitamins to food and pharmaceutical manufacturers for human consumption and to manufacturers of animal feed and nutrition products. Defendants also sell vitamins premixes and bulk vitamins products to manufacturers and users of animal feed and nutrition products. The vitamins manufactured by defendants are commonly used as an ingredient in the production of vitamins packaged for consumer use under major brand names. The plaintiffs bring the action on behalf of themselves as representatives of a class of all persons or entities who directly purchased the named vitamins and choline chloride. The class of direct purchasers is composed of feed mills, premix blenders, vitamin packagers (of products for human consumption), distributors and brokers, and, in some cases, farms raising produce animals. The plaintiffs seek treble damages under the Clayton Act for the overcharges they paid as a result of the alleged antitrust violations. The plaintiffs, as direct" }, { "docid": "20312193", "title": "", "text": "The three doctrines upon which defendants rely recognize that a foreign national should not be placed between the rock of its own local law and the hard place of U.S. law. However, that concern is insufficient to protect defendants from their acknowl edged violation of the antitrust laws because, here, there is no rock and no hard place. The Chinese law relied upon by defendants did not compel their illegal conduct. Although defendants and the Chinese government argue to the contrary, the provisions of Chinese law before me do not support their position, which is also belied by the factual record. I decline to defer to the Chinese government’s statements to the court regarding Chinese law. Accordingly, defendants’ motion for summary judgment is denied. (1) BACKGROUND By November 2001, defendants, who faced much lower manufacturing costs than their foreign competitors, had captured over 60% of the worldwide market for vitamin C. China’s share of vitamin C imports to the United States rose from 60% in 1997 to over 80% by 2002. Around this time, a number of foreign competitors discontinued or reduced production. It is not disputed that defendants fixed prices and agreed on output restrictions. Defendants are members of the Chamber of Commerce of Medicines and Health Products Importers and Exporters (“the Chamber”). Many of the agreements at issue were reached at meetings of the Chamber and appear to have been, at the very least, facilitated by the Chamber. Defendants, however, contend that the Chamber is a government-supervised entity through which the Chinese government exercises its regulatory authority over vitamin C exports and that all of the agreements at issue were compelled by the Chinese government. After plaintiffs filed suit, defendants moved to dismiss the complaint, invoking the foreign sovereign compulsion defense, the act of state doctrine and the doctrine of international comity. The Ministry of Commerce of the People’s Republic of China (“The Ministry”), which is the highest authority in China authorized to regulate foreign trade, filed an amicus brief in support of defendants’ motion, explaining the Chinese government’s regulation of vitamin C exports. The Ministry “formulates strategies," }, { "docid": "14225794", "title": "", "text": "Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. Dissenting opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON. HARRY T. EDWARDS, Circuit Judge: The action in this case was filed under section 1 of the Sherman Act, 15 U.S.C. § 1, sections 4 and 16 of the Clayton Act, 15 U.S.C. § 15 and 26, the antitrust laws of foreign nations, and international law, on behalf of all foreign purchasers of certain vitamins, vitamin premixes, and bulk vitamin products and precursors, against a number of corporations, both foreign and domestic, who distribute and sell these vitamin products around the world. Appellants contend that appellees engaged in an over-arching worldwide conspiracy to raise, stabilize, and maintain the prices of vitamins; that this cartel operated on a global basis and affected virtually every market where appellees operated worldwide; and that appellees’ unlawful price-fixing conduct had adverse effects in the United States and in other nations that caused injury to appellants in connection with their foreign purchases of vitamin products. Appellees moved to dismiss the action in the District Court, asserting that the court lacked subject matter jurisdiction under the federal antitrust laws, because the injuries plaintiffs sought to redress were allegedly sustained in transactions that lack any direct connection to United States commerce. The District Court granted the motion to dismiss and appellants now appeal. This appeal requires us to interpret the Foreign Trade Antitrust Improvements Act (“FTAIA”), 15 U.S.C. § 6a, to determine the jurisdictional reach of the federal antitrust laws. FTAIA, which amended the Sherman Act, provides that the Sherman Act “shall not apply to conduct” involving trade or commerce with foreign nations unless “such conduct has a direct, substantial, and reasonably foreseeable effect” on trade or commerce in the United States, and “such effect gives rise to a claim” under the provisions of the Sherman Act. Section 6a(l) of FTAIA makes it clear that our federal antitrust laws regulate foreign conduct only where that conduct has the proscribed “effects” on domestic or foreign United States commerce. And § 6a(2) of FTAIA provides that the antitrust laws are" }, { "docid": "20312194", "title": "", "text": "number of foreign competitors discontinued or reduced production. It is not disputed that defendants fixed prices and agreed on output restrictions. Defendants are members of the Chamber of Commerce of Medicines and Health Products Importers and Exporters (“the Chamber”). Many of the agreements at issue were reached at meetings of the Chamber and appear to have been, at the very least, facilitated by the Chamber. Defendants, however, contend that the Chamber is a government-supervised entity through which the Chinese government exercises its regulatory authority over vitamin C exports and that all of the agreements at issue were compelled by the Chinese government. After plaintiffs filed suit, defendants moved to dismiss the complaint, invoking the foreign sovereign compulsion defense, the act of state doctrine and the doctrine of international comity. The Ministry of Commerce of the People’s Republic of China (“The Ministry”), which is the highest authority in China authorized to regulate foreign trade, filed an amicus brief in support of defendants’ motion, explaining the Chinese government’s regulation of vitamin C exports. The Ministry “formulates strategies, guidelines and policies concerning domestic and foreign trade and international economic cooperation, drafts and enforces laws and regulations governing domestic and foreign trade, and regulates market operation to achieve an integrated, competitive and orderly market system.” The Ministry is equivalent to a cabinet level department in the United States. According to the Ministry, defendants’ actions were compelled by the Chinese government. Judge David G. Trager denied defendants’ motion to dismiss, finding the record, at that time, to be “simply too ambiguous to foreclose further inquiry into the voluntariness of defendants’ actions.” In re Vitamin C Antitrust Litig., 584 F.Supp.2d 546, 559 (E.D.N.Y.2008). With the benefit of some discovery, plaintiffs had offered evidence suggesting that defendants’ agreements may have been voluntary. In addition, Judge Trager was concerned with the possibility that the cartel and purportedly compulsive governmental regulations at issue had been established at the behest of defendants and the Chinese government had simply given its “imprimatur.” Defendants now move for summary judgment on their three related defenses. Although the initial complaint in this suit was" }, { "docid": "20312195", "title": "", "text": "guidelines and policies concerning domestic and foreign trade and international economic cooperation, drafts and enforces laws and regulations governing domestic and foreign trade, and regulates market operation to achieve an integrated, competitive and orderly market system.” The Ministry is equivalent to a cabinet level department in the United States. According to the Ministry, defendants’ actions were compelled by the Chinese government. Judge David G. Trager denied defendants’ motion to dismiss, finding the record, at that time, to be “simply too ambiguous to foreclose further inquiry into the voluntariness of defendants’ actions.” In re Vitamin C Antitrust Litig., 584 F.Supp.2d 546, 559 (E.D.N.Y.2008). With the benefit of some discovery, plaintiffs had offered evidence suggesting that defendants’ agreements may have been voluntary. In addition, Judge Trager was concerned with the possibility that the cartel and purportedly compulsive governmental regulations at issue had been established at the behest of defendants and the Chinese government had simply given its “imprimatur.” Defendants now move for summary judgment on their three related defenses. Although the initial complaint in this suit was filed in January 2005, the operative complaint for the purposes of the instant motion covers the time period from December 1, 2001 through December 2, 2008. (2) CHINESE LAW I. China’s Economic Transition and the Establishment of the Chambers In 1978, China began to transition from a planned economy to a “socialist market economy.” During the planned economy era, the control of foreign trade was centralized under the Ministry and all foreign trade was conducted through state-owned import and trade companies according to state trade plans. After some reforms in the mid-1980’s led to aggressive forms of competition, the government imposed new administrative controls, which involved the establishment of the various China Chambers of Commerce for Import and Export (“Chambers”), including the Chamber. According to defendants’ Chinese law expert, Professor Shen Sibao, the formation of the Chambers was part of China’s “important national policy which requires Chinese exporting companies to ‘unite and act in unison in foreign trade.’ ” The authority to regulate import and export commerce was eventually transferred from the state-owned trading companies" }, { "docid": "22252945", "title": "", "text": "Mr. Justice Stewart delivered the opinion of the Court. In this case we are asked to decide whether a foreign nation is entitled to sue in our courts for treble damages under the antitrust laws. The respondents are the Government of India, the Imperial Government of Iran, and the Republic of the Philippines. They brought separate actions in Federal District Courts against the petitioners, six pharmaceutical manufacturing companies. The actions were later consolidated for pretrial purposes in the United States District Court for the District of Minnesota. The complaints alleged that the peti tioners had conspired to restrain and monopolize interstate and foreign trade in the manufacture, distribution, and sale of broad spectrum antibiotics, in violation of §§ 1 and 2 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 16 U. S. C. §§ 1, 2. Among the practices the petitioners allegedly engaged in were price fixing, market division, and fraud upon the United States Patent Office. India and Iran each alleged that it was a “sovereign foreign state with whom the United States of America maintains diplomatic relations”; the Philippines alleged that it was a “sovereign and independent government.” Each respondent claimed that as a purchaser of antibiotics it had been damaged in its business or property by the alleged antitrust violations and sought treble damages under § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, on its own behalf and on behalf of several classes of foreign purchasers of antibiotics. The petitioners asserted as an affirmative defense to the complaints that the respondents as foreign nations were not “persons” entitled to sue for treble damages under § 4. In response to pretrial motions the District Court held that the respondents were “persons” and refused to dismiss the actions. The trial court certified the question for appeal pursuant to 28 U. S. C. § 1292 (b). The Court of Appeals for the Eighth Circuit affirmed, 550 P. 2d 396, and adhered to its decision upon rehearing en banc. Id., at 400. We granted certiorari to resolve an important and novel" }, { "docid": "14225806", "title": "", "text": "the domestic plaintiffs had no pending claims in the instant case. On September 10, 2001, the District Court granted the defendants’ motion for an order directing entry of final judgment, and on April 26, 2002, the District Court entered final judgment for the defendants in the instant case. The foreign plaintiffs’ appeal is therefore no longer interlocutory. II. ANALYSIS ' A. Subject Matter Jurisdiction This court reviews de novo the District Court’s dismissal of a complaint for lack of subject matter jurisdiction. Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1432 (D.C.Cir.1995). A complaint may be dismissed for lack of subject matter jurisdiction 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.’ ” Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir.1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In our review, this court assumes the truth of the allegations made and construes them favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). In. this case, the foreign purchasers, who bought vitamins exclusively outside the United States, allege, that the vitamin companies conspired to fix vitamin prices around the world, and that the foreign purchasers paid inflated prices for vitamins abroad as a result of the global conspiracy. FTAIA makes the Sherman Act inapplicable to conduct in foreign commerce unless the conduct has “a direct, substantial, and reasonably foreseeable effect” on domestic commerce and “such effect gives rise to a claim under” the Sherman Act. See 15 U.S.C. § 6a(l). As an initial matter, the parties appear to dispute the scope of the “conduct” that should be considered for our FTAIA analysis. Essentially, appellants argue that the relevant conduct is the “massive international cartel, exercising global market power.” Appellants’ Br. 19. Appellees argue that the relevant conduct is solely the market transactions between them and the. foreign plaintiffs overseas. Appellees’ Br. 20-21. Both the Second and Fifth Circuits have adopted appellants’ approach," }, { "docid": "9814545", "title": "", "text": "NICHOLS, Judge. Plaintiff-appellant, Edward Q. Lupia, was an exclusive distributor of defendant’s ethnic bakery products in the Chicago metropolitan area from 1961 until 1972. Defendant-appellee, Stella D’Oro Biscuit. Company, Inc., is a New York corporation. In 1972, Lupia brought an action against Stella D’Oro, alleging that Stella D’Oro’s marketing practices had violated various provisions of the Federal antitrust laws, specifically section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, section 3 of the Clayton Act, 15 U.S.C. § 14, and sections 2(a) and 2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(a), (c). Plaintiff seeks monetary relief under section 4 of the Clayton Act, 15 U.S.C. § 15, the remedial provision allowing recovery of treble damages by “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws * * *.” The terms of the agreements between the parties and the defendant’s allegedly illegal practices are detailed below. Both plaintiff and defendant filed motions for summary judgment in the district court. The motions were based on a substantial record assembled by discovery and affidavits, establishing beyond the mere allegations of the pleadings, what the plaintiff was and was not able to prove. Judge Flaum granted summary judgment to defendant on all four counts of the complaint, and denied summary judgment to plaintiff. We affirm. Before discussing the contentions of the parties regarding the antitrust claims, it is necessary to comment on the role of a summary judgment in antitrust cases. In any type of litigation, the standard for granting summary judgment is strict. In Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1961), citing Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944), the Supreme Court enunciated that standard, declaring that summary judgment was proper: * * * “only where the moving party is entitled to a judgment as a matter of law, where it is quite clear what the truth is, * * * [and where] no genuine issue remains for trial *" } ]

[ { "docid": "2977402", "title": "", "text": "MEMORANDUM OF DECISION ON DAMAGES WINTER, Circuit Judge: In an earlier opinion, familiarity with which is assumed, I concluded that Mr. Cowan had proven that Prudential had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1982), when his superior failed to consider Mr. Cowan for promotions for which he was qualified. Subsequently, a hearing on backpay and damages was held. After reviewing the evidence, I conclude that plaintiff suffered no loss of income as a result of not being promoted, but that he should receive $15,000 in damages for emotional distress. I. BACKPAY Under Title VII, a successful plaintiff is presumptively entitled to back-pay. See Cohen v. West Haven Bd. of Police Comm’rs, 638 F.2d 496, 502 (2d Cir.1980). Backpay and other relief authorized under Title VII “is intended to make the victims of unlawful discrimination whole, [and] requires that persons aggrieved by the consequences and the effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” 118 Cong.Rec. 7168 (1972) (statement of Sen. Williams), quoted in Albermarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975). Accordingly, the statute expressly provides that “[interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g) (1982). I find that Mr. Cowan is not entitled to an award of backpay because the evidence clearly demonstrates that, had he been promoted to the position of sales manager in November 1978, he would have earned less than what he could reasonably have earned as an insurance agent. The parties disagree about the period of time over which backpay should be calculated. Mr. Cowan argues that he should receive backpay corresponding to earnings he allegedly lost between the time of Mr. Shepard’s promotion in November 1978 and the time of Mr. Cowan’s formal resignation from Prudential in January 1980. Prudential argues in response that plaintiff effectively" } ]

[ { "docid": "16731021", "title": "", "text": "a claim under section 2000e-2(m), (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subpara-graph (A). . 42 U.S.C. § 1988(b) provides in relevant part, In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of costs. . 42 U.S.C. § 2000e-5(k) provides, In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. . The passage may have more force in cases in which a plaintiff brings more than one claim of discrimination — for instance, a case alleging numerous instances of discriminatory failure to hire or promote — and in which the jury ultimately finds that, with respect to some of the claims, the employer would have made the same decision in the absence of the illegal motivating factor. Under 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k), a party who \"prevails” on at least one claim under some circumstances may receive attorney's fees for work on related claims on which it was unsuccessful. See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983); Goodwin v. Metts, 973 F.2d 378, 381-83 (4th Cir.1992). A more restrictive rule may apply to successful claims under section 2000e-5(g)(2)(B) in light of this emphasis on attorney's fees and costs \"directly attributable only” to pursuit of the mixed motive claim. The language stresses Congress’ sensitivity to the principle of causation and the need to circumscribe the defendant’s liability for actions it would have taken anyway. See H.R.Rept. No. 102-40(1), 102 Cong., 1st Sess., at 49 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 587; H.R.Rept. 102-40(11), 102 Cong., 1st Sess.," }, { "docid": "2977403", "title": "", "text": "were it not for the unlawful discrimination.” 118 Cong.Rec. 7168 (1972) (statement of Sen. Williams), quoted in Albermarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975). Accordingly, the statute expressly provides that “[interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g) (1982). I find that Mr. Cowan is not entitled to an award of backpay because the evidence clearly demonstrates that, had he been promoted to the position of sales manager in November 1978, he would have earned less than what he could reasonably have earned as an insurance agent. The parties disagree about the period of time over which backpay should be calculated. Mr. Cowan argues that he should receive backpay corresponding to earnings he allegedly lost between the time of Mr. Shepard’s promotion in November 1978 and the time of Mr. Cowan’s formal resignation from Prudential in January 1980. Prudential argues in response that plaintiff effectively resigned his employment in August 1979, when, as I observed in my previous opinion, Mr. Cowan “virtually ceased work.” Cowan v. Prudential Insurance Co. of Am., No. B-81-511 (PCD), 703 F.Supp. 177, 184 (D.Conn.1986) (“Cowan /”). This controversy need not be resolved, however, because plaintiff cannot demonstrate an entitlement to backpay, even if he is correct as to the liability period. Prudential determined the compensation of its insurance agents on the basis of their productivity. Mr. Richard Cashion, who administered the compensation plans covering Prudential’s agents and managers, testified that Prudential paid its agents under what it called a “level-mix plan.” Part of an agent’s compensation was paid at a rate that remained fixed for thirteen-week periods; during any given calendar quarter, this portion of the agent’s compensation reflected the agent’s performance during the immediately preceding quarter. Prudential nevertheless guaranteed its agents a minimum weekly compensation, which at the time of Mr. Cowan’s resignation amounted to approximately $220 per week. This system is illustrated by Mr. Cowan’s compensation record. Until mid-November 1979, Mr. Cowan consistently" }, { "docid": "22967633", "title": "", "text": "district court’s denial of this motion for an abuse of discretion. Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.1994). After reviewing the record, and in light of the fact that the court had previously declined to exercise jurisdiction over this state law claim, we conclude that the court did not abuse its discretion in denying Mr. Reynolds’ Rule 15(d) motion. However, the court initially justified its decision to deny pendent jurisdiction in part because “Title VII provides a prompt and effective remedy for employment discrimination.” Berry, 744 F.Supp. at 1036. Because this justification has not proven true in this case, we believe that the district court should be given the opportunity to re-exercise its discretion and to reconsider its decision to dismiss the state law claims. We therefore remand this issue to the district court. V. Attorney’s Fees The district court granted Mr. Reynolds and Mr. Berry $324,894 in attorney’s fees under 42 U.S.C. § 2000e-5 and 42 U.S.C. § 1988. In arriving at this figure, the court concluded that Mr. Berry was a prevailing party with respect to his section 1981 and Title VII discrimination claims and that Mr. Reynolds was a prevailing party with respect to his Title VII retaliation claim. The court then calculated the lodestar for these plaintiffs’ claims. After disallowing a few specific fee requests, see Order dated Mar. 30, 1993, Aplt.App., vol. I at 245-248, the court further reduced the lodestar by twenty percent to reflect the fact that monetary damages fell far short of the amount sought. Id. at 9. Defendants first argue that the district court abused its discretion in failing to discount the lodestar for imprecise time entries. “An attorney’s fee award by the district court will be upset on appeal only if it represents an abuse of discretion.” Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir.1986). We will reverse subsidiary factual findings only if they are clearly erroneous. Id. We require that “lawyers keep meticulous time records that ‘reveal ... all hours for which compensation is requested and how those hours were" }, { "docid": "19309988", "title": "", "text": "Legal Standard for Recovery of Compensatory Damages Victims of intentional discrimination in violation of Title VII are entitled, under 42 U.S.C. § 1981a, to compensatory damages for losses that are not otherwise compensable under the enforcement provisions of 42 U.S.C. § 2000e-5(g). The compensatory damages authorized by § 1981a are, in contrast to the backpay ordinarily available § 2000e-5(g), a tort-like remedy. See United States v. Burke, 504 U.S. 229, 240-42, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) (contrasting Title VTI’s focus on redressing “legal injuries of an economic character” with 42 U.S.C. § 1981, which permits victims of some forms of employment discrimination to obtain tort-like damages); Duse v. IBM Corp., 252 F.3d 151, 160-61 (2d Cir.2001) (discussing Burke). “[Djamages in tort eases are designed to provide compensation for the injury caused to plaintiff by defendant’s breach of duty.” Memphis Community School District v. Stachura, 477 U.S. 299, 306, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (quotation marks omitted). Thus, a plaintiff who seeks compensatory damages must prove that the defendant’s breach of duty caused him actual injury. Id. at 308, 106 S.Ct. 2537 (holding that “principles of tort damages on which ... [42 U.S.C.] § 1983 is grounded” require plaintiff to prove actual injury). Consistent with these principles, the Second Circuit has held that victims of intentional employment discrimination may recover compensatory damages under § 1981a(a)(l) if they “prove that the discrimination caused them ‘emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other nonpecuniary losses.’ ” Robinson, 267 F.3d at 160 (quoting 42 U.S.C. § 1981a(b)(3)). This requires proceedings capable of determining “whether and to what extent” the discrimination caused the injuries complained of by the plaintiff. See Cowan v. Prudential Ins. Co. of Am., 852 F.2d 688, 690-91 (2d Cir.1988) (affirming award of compensatory damages under § 1981 and Title VII where, after bench trial, district court considered that the plaintiff “himself was the cause of some of the humiliation he suffered and some of the difficulties he had with co-workers”). Other circuit courts have held that individualized assessments of intangible injury are" }, { "docid": "12138875", "title": "", "text": "VII expressly provides that “[ijnterim earnings or amounts earnable with reasonable diligence by the person ... discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g) (1982). Therefore an award of back pay must take into account amounts which Cowan earned or could have earned with reasonable effort. Here, the district court in essence determined that although an award of back pay was appropriate, the amount of that award was $0, because Cowan would have earned less during the fifty-eight-week liability period (from the time he was passed over for promotion until he resigned) as a sales manager than he would have earned, in the exercise of reasonable diligence, as a sales agent. The court reached this conclusion by comparing the income which Prudential guarantees sales managers with the amount that Cowan earned while diligently working as a sales agent during the same period. Although Cowan might have earned more as a sales manager during the liability period, it was hardly error for the district court to refuse to engage in speculation. Rather, Judge Winter’s calculations have substantial support in the record and will not be disturbed on appeal. Compensatory Damages The district court did award Cowan $15,000 in compensatory damages on his section 1981 claim. Section 1981 provides that “[a]ll persons ... shall have the same right in every State and Territory to make and enforce contracts, ... as is enjoyed by white citizens,” 42 U.S.C. § 1981 (1982), and has been interpreted to forbid racial discrimination in private employment. Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). Cowan claims that the district court considered a number of impermissible factors in determining damages and that an award of $50,000 to $150,000 was warranted. At the hearing on damages, Cowan testified that Prudential’s failure to promote him caused him severe emotional distress, humiliation, and loss of self-esteem. As a result, his home life suffered, he began having serious disagreements with his wife, and he began drinking heavily. His testimony was corroborated by testimony from his wife" }, { "docid": "2977417", "title": "", "text": "made (I make no finding on whether they were), they were flatly inconsistent with his simultaneous arguments with his wife about whether he was the victim of racial discrimination. If he believed, as he clearly did, that he was the victim of racial discrimination, he should not have predicted imminent promotion to others and thus increase his humiliation by his own acts. Mr. Cowan also cannot recover for the emotional distress resulting from his problems with his co-workers. As I observed in my earlier discussion of Mr. Cowan’s constructive discharge claim, these problems were not due to racial animus. “The evidence is overwhelming that Mr. Czel and Mr. Lely were reacting to being described publicly by Mr. Cowan [in a newspaper article] as not deserving promotion____” Id. at 191. Finally, I conclude that Mr. Cowan should have sought counseling. His belief that he would be hindered in his employment prospects if he received counseling is not credible, for his conduct in refusing to work at Prudential and his subsequent poor performance at Metropolitan Life were potentially far more damaging to his career than public knowledge of counseling would have been. Moreover, he had no reason at all to anticipate that the counseling would not be confidential. For the foregoing reasons, I conclude that Mr. Cowan is entitled to an award of $15,000 for his emotional distress. III. CONCLUSION Plaintiff has failed to prove that he is entitled to an award for backpay under Title VII because the evidence demonstrates that, had he obtained the promotion that he was unlawfully denied, he would have earned less than he could have in his original job. Nevertheless, plaintiff has proven that he has suffered emotional distress as the result of defendant’s discrimination, and is accordingly awarded $15,000 in damages under Section 1981. This opinion will serve as my findings of fact and conclusion of law under Fed.R.Civ.P. 52. SO ORDERED. The Honorable Ralph K. Winter, U.S. Circuit Judge, U.S. Court of Appeals for the Second Circuit, sitting by designation. . This amount is based upon the parties' shared assumption that Mr. Cowan would" }, { "docid": "23480422", "title": "", "text": "against the Hospital. The district court made no finding on this issue. Pino’s attorney then sought $92,029.50 in attorney’s fees and $4,842,49 in costs. The district court concluded that attorney’s fees were proper because the trial “confer[ed] a generalized benefit on the public and vindicated the rights of this particular plaintiff.” The district court cited our decision in Cowan v. Prudential Insurance Company of America, 935 F.2d 522 (2d Cir.1991), as support for awarding Pino fees and costs. It did not, however, cite the Supreme Court’s later decision in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). The court reduced Pino’s request to eliminate the time spent on unsuccessful claims and awarded Pino $50,590.80 in attorney’s fees and $4,842.49 in costs. The Hospital now appeals the district court’s award of attorney’s fees arguing that, under Farrar, attorney’s fees are inappropriate when a plaintiff wins only nominal damages. DISCUSSION There is only one issue presented here: Did the district court abuse its discretion by awarding attorney’s fees and costs to a plaintiff who recovered only nominal damages? We conclude that the Supreme Court substantially answered this question in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). 42 U.S.C. § 2000e-5(k) provides that “[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party .... a reasonable attorney’s fee_” 42 U.S.C. § 2000e-5(k). We review a trial court’s decision to award attorney’s fees to a prevailing party for an abuse of discretion. LaRouche v. Kezer, 20 F.3d 68, 71 (2d Cir.1994). Determining whether an award of attorney’s fees is appropriate requires a two-step inquiry. First, the party must be a “prevailing party” in order to recover. Farrar, 506 U.S. at 109, 113 S.Ct. at 571-72. If she is, then.the requested.fee must also be reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). The most important factor in determining the reasonableness of a fee is the degree of success obtained. Farrar, 506 U.S. at 114, 113 S.Ct. at 574-75." }, { "docid": "2977412", "title": "", "text": "DISTRESS Although my earlier opinion addressed specifically only plaintiff’s claim under Title VII, plaintiff had also alleged a claim under 42 U.S.C. § 1981, which provides that “all persons ... shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.” Section 1981 has been interpreted to forbid racial discrimination in private employment, Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975), and although differences exist between Title VII and Section 1981 in coverage, procedure and remedies, under the circumstances of this case a finding of unlawful discrimination under Title VII compels a similar finding under Section 1981. See, e.g., Gray v. Board of Higher Educ., 692 F.2d 901, 905 & n. 8 (2d Cir.1982); Lewis v. University of Pittsburgh, 725 F.2d 910, 915 & n. 5 (3d Cir.1983). Unlike Section 1981, however, Title VII makes no provision for legal remedies such as the award of compensatory damages, see, e.g., Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1184 (7th Cir.1986); Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 138-39 (3d Cir.1986); Walker v. Ford Motor Co., 684 F.2d 1355, 1363-64 (11th Cir.1982), including damages “for emotional distress, pain and suffering, or interest that would have been earned on ... lost wages.” Protos, 797 F.2d at 138. Accordingly, plaintiff’s claim of damages for emotional distress will be treated as arising under Section 1981. At the hearing on damages, Mr. Cowan testified that he had been deeply affected by Prudential’s failure to give him the promotion that went to Arthur Lely in August 1979. Mr. Cowan stated that “I [had] wanted to climb as high as I possibly could” at Prudential, but that when he was denied the Lely promotion “I felt humiliated, I felt — I had a very low self-esteem____” According to Mr. Cowan, every time a sales manager’s position was about to open up, he would tell his clients that he would no longer be collecting premiums. When he did not get the promotion, he would" }, { "docid": "23251820", "title": "", "text": "1981 for the emotional distress suffered as a result of Casa Gallardo’s conduct. Because Title VII authorizes relief based principally on equitable principles, such damages are not allowable under that Act. No award under § 1981 can be made unless the district court finds the failure to promote constituted a violation of that statute, and, if so, the award must be limited to the damages suffered as a result of the failure to promote. Accordingly, the court on remand shall determine whether any award should be made, and, if so, its amount. D. Attorney’s Fees The district court awarded Weaver’s attorneys fees. Weaver does not seek an additional award for attorney’s services on appeal, and Casa Gallardo does not contest the amount awarded for trial-court services, seeking vacation of the award only on the basis that the district court incorrectly decided the liability issues. We therefore affirm the judgment insofar as it awarded attorney’s fees. For the reasons stated, we: 1. AFFIRM the judgment of liability under Title VII for both of Weaver’s failure to promote claims and for his claim of retaliatory and discriminatory discharge; 2. REVERSE the district court’s judgment of liability under Section 1981; 3. REMAND to the district court to reevaluate the question of liability under Section 1981 for the failure-to-promote claims; 4. AFFIRM the award of back pay; 5. AFFIRM the award for lost retirement benefits and prejudgment interest; 6. VACATE the award of front pay; 7. VACATE the award of compensatory damages; and 8. AFFIRM the award of attorney’s fees. The case is REMANDED for further proceedings consistent with this opinion. .42 U.S.C. § 2000e-2(a), -3(a) (1988). . 42 U.S.C. § 1981 (1988). . 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). . See Walker v. Ford Motor Co., 684 F.2d 1355, 1364 (11th Cir.1982). . 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). . Id. at -, 109 S.Ct. at 2374-75. . Id. at-, 109 S.Ct. at 2374. . Id. at-, 109 S.Ct. at 2377. . -U.S.-, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990). . Id. 110 S.Ct. at" }, { "docid": "12138871", "title": "", "text": "OAKES, Circuit Judge: Curtis Cowan appeals the damage award he received in his successful Title VII and section 1981 action in the United States District Court for the District of Connecticut, Ralph K. Winter, Circuit Judge, sitting by designation. Cowan v. Prudential Ins. Co. of America, No. B 81-511 (D.Conn. Sept. 21, 1987). Cowan claims that the district court was in error in not awarding back pay and in considering impermissible factors in calculating compensatory damages. The Prudential Insurance Co. of America (“Prudential”) cross-appeals, claiming that the district court’s finding of liability was contrary to the evidence and based upon a theory of discrimination expressly rejected by the plaintiff. Because we find no error in either the computation of damages or in the finding of liability, we affirm. Cowan, who is black, worked as an insurance agent for Prudential in its Stamford, Connecticut, district between 1975 and 1980. During that time the Stamford district promoted four white agents to the position of sales manager, overlooking Cowan despite his active solicitation of promotion and his superior job performance. After Cowan was passed over, his job performance declined, and on January 3, 1980, he resigned. After a bench trial Judge Winter issued his opinion in two parts, the first addressing only the liability issues and the second, damages. In the first, Judge Winter applied the test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and found that Cowan had made out a prima facie case of racial discrimination for failure to promote, and that Prudential failed to make a persuasive rebuttal case. The opinion added that Cowan had not proven his constructive discharge claim, in that Cowan’s resignation was voluntary. In his opinion on damages, Judge Winter noted that an award of back pay was appropriate, but that Cowan should have earned as much in his sales agent position as he would have had he been promoted. He did award $15,000 in compensatory damages under 42 U.S.C. § 1981. Our review of the district court’s ruling on damages uses two different" }, { "docid": "12138874", "title": "", "text": "view to ‘ “fashionpng] ... the most complete relief possible.” ’ ” Id. at 504 (quoting Albemarle Paper Co. v. Moody, 422 U.S. at 421, 95 S.Ct. at 2373 (quoting 118 Cong.Rec. 7168 (1972) (remarks of Sen. Williams))); Association Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256, 288 (2d Cir.1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). [GJiven 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. The courts of appeals must maintain a consistent and principled application of the backpay provision, consonant with the twin statutory objectives, while at the same time recognizing that the trial court will often have the keener appreciation of those facts and circumstances peculiar to particular cases. Albemarle Paper Co. v. Moody, 422 U.S. at 421-22, 95 S.Ct. at 2373-74, quoted in Association Against Discrimination, 647 F.2d at 288. However, Title VII expressly provides that “[ijnterim earnings or amounts earnable with reasonable diligence by the person ... discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g) (1982). Therefore an award of back pay must take into account amounts which Cowan earned or could have earned with reasonable effort. Here, the district court in essence determined that although an award of back pay was appropriate, the amount of that award was $0, because Cowan would have earned less during the fifty-eight-week liability period (from the time he was passed over for promotion until he resigned) as a sales manager than he would have earned, in the exercise of reasonable diligence, as a sales agent. The court reached this conclusion by comparing the income which Prudential guarantees sales managers with the amount that Cowan earned while diligently working as a sales agent during the same period. Although Cowan might have earned more as a sales manager during the liability period, it was hardly error for the district court to refuse to engage" }, { "docid": "12138876", "title": "", "text": "in speculation. Rather, Judge Winter’s calculations have substantial support in the record and will not be disturbed on appeal. Compensatory Damages The district court did award Cowan $15,000 in compensatory damages on his section 1981 claim. Section 1981 provides that “[a]ll persons ... shall have the same right in every State and Territory to make and enforce contracts, ... as is enjoyed by white citizens,” 42 U.S.C. § 1981 (1982), and has been interpreted to forbid racial discrimination in private employment. Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). Cowan claims that the district court considered a number of impermissible factors in determining damages and that an award of $50,000 to $150,000 was warranted. At the hearing on damages, Cowan testified that Prudential’s failure to promote him caused him severe emotional distress, humiliation, and loss of self-esteem. As a result, his home life suffered, he began having serious disagreements with his wife, and he began drinking heavily. His testimony was corroborated by testimony from his wife and from co-workers. In reaching an award, Judge Winter considered the fact that Cowan had not been subjected to overt racism or public humiliation, that the upper management of Prudential was not aware that race played a role in the failure to promote Cowan and had offered Cowan three other, though less attractive, sales manager positions in other parts of New England, that Cowan himself was the cause of some of the humiliation he suffered and some of the difficulties he had with co-workers (in that he told clients that he would be promoted and that he criticized co-workers in a newspaper article), and that Cowan had not sought counseling. Appellant does not challenge the factual bases for these findings, but rather argues that the district court considered factors not in keeping with the remedial purposes of section 1981 and Title VII. But each of the factors was directly relevant to whether and to what extent Prudential caused Cowan’s emotional distress. Appellant characterizes Judge Winter’s findings as if he deducted amounts from a larger figure" }, { "docid": "18842478", "title": "", "text": "asserted against them in the second amended complaint. Those claims alleged: violation of 42 U.S.C. § 1981; violation of 42 U.S.C. § 1985(3); violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; defamation; and violation of N.J.S.A. 10:5-1 et seq. Attorneys’ fees are also sought on behalf of three individual defendants who received voluntary dismissals on October 27, 1981 (Cooper, Fenster and Herron), and three individual defendants who received involuntary dismissals on July 7, 1982 (Dickinson, Fuller and McGarry). Defendant FDU seeks attorneys’ fees pursuant to 42 U.S.C. § 1988 for services performed with respect to three of the claims against it: the § 1985 claim, the defamation claim, and the claim under N.J. S.A. 10:5-1 et seq. A. Standard Governing Awards of Attorneys’ Fees Under 43 U.S.C. §§ 1988 and 2000e-5(k) In 1976 Congress amended 42 U.S.C. § 1988 to allow awards of attorneys’ fees in civil rights actions. The statute now provides: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), contains similar language: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs .... Congress intended the standards for awards of attorneys’ fees under the two statutes to be “generally the same,” S.Rep. No. 94-1011, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912, and the Supreme Court has stated that the standards are identical. Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (per curiam). See also Roadway Express, Inc. v. Piper, 447 U.S. 752, 758 n. 5, 100 S.Ct. 2455, 2460 n. 5, 65 L.Ed.2d 488 (1980). Thus cases interpreting one statute may be used" }, { "docid": "2977411", "title": "", "text": "calls, postage and train ing — that amounted to $3581.06. He also urges, based on his tax returns, that his expenses for 1979 totaled $5046.00, and that in calculating backpay this court should consider these claimed expenses for 1979 along with a prorated amount, based upon the 1978 figure, for expenses incurred during the last six weeks of 1978 (i.e., after the Shepard promotion). But if plaintiffs claimed expenses for 1978 are accurate, his claimed expenses for 1979 are obviously overstated. As I observed in my earlier opinion, Mr. Cowan virtually ceased work in July 1979, when he failed to receive the promotion that was given to Arthur Lely. Because Mr. Cowan essentially stopped selling policies and collecting premiums at that time, I find it difficult to believe that his expenses in 1979 could have exceeded his expenses for the previous year. Mr. Cowan’s out-of-pocket expenses would have thus increased had he been promoted to sales manager. Accordingly, I conclude that Mr. Cowan is not entitled to an award for backpay. II. DAMAGES FOR EMOTIONAL DISTRESS Although my earlier opinion addressed specifically only plaintiff’s claim under Title VII, plaintiff had also alleged a claim under 42 U.S.C. § 1981, which provides that “all persons ... shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.” Section 1981 has been interpreted to forbid racial discrimination in private employment, Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975), and although differences exist between Title VII and Section 1981 in coverage, procedure and remedies, under the circumstances of this case a finding of unlawful discrimination under Title VII compels a similar finding under Section 1981. See, e.g., Gray v. Board of Higher Educ., 692 F.2d 901, 905 & n. 8 (2d Cir.1982); Lewis v. University of Pittsburgh, 725 F.2d 910, 915 & n. 5 (3d Cir.1983). Unlike Section 1981, however, Title VII makes no provision for legal remedies such as the award of compensatory damages, see, e.g., Bohen v. City of East Chicago," }, { "docid": "23682862", "title": "", "text": "The majority’s interpretation of section 2000e-5(g)(2)(B) is not supportable as a matter of statutory construction. Nor is it reasonable. I. The Supreme Court’s decision in Farrar v. Hobby does not have any bearing on whether and to what extent a court should grant an award of attorney’s fees under section 2000e-5(g)(2)(B). And, even if Farrar were applicable in mixed-motive cases, that decision would support the conclusion that an award of attorney’s fees should be granted under almost all circumstances in which a plaintiff establishes a violation of section 2000e-2(m). A. In Farrar the Court was asked to decide whether a plaintiff who recovers only nominal damages may still be deemed a prevailing party eligible for an award of attorney’s fees. The statute at issue there was the Civil Rights Attorney’s Fees Awards Act of 1976, as amended, 42 U.S.C. § 1988, which provides that: In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983,1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d, et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. (Emphasis added.) After determining that a party who “wins” her ease yet recovers only nominal damages is in fact a “prevailing party” under section 1988, Farrar, 506 U.S. at 112-14, 113 S.Ct. at 573-74, the Court nonetheless held that under such circumstances “the only reasonable fee is usually no fee at all.” Id. at 115, 113 S.Ct. at 575. In this case, however, we are asked to interpret section 2000e-5(g)(2)(B), not section 1988. On their faces these sections are quite different. Section 1988 makes clear that “the court, in its discretion, may allow the prevailing party ... reasonable attorney’s fees as part of costs.” (Emphasis added.) Likewise, section 2000e-5(k), the general provision under which a Title" }, { "docid": "11894997", "title": "", "text": "706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, allow for the recovery of attorneys’ fees and costs by prevailing parties in suits brought under Title VII and under the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981, 1983. The applicable sections of those Acts provide that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. §§ 1988, 2000e-5(k). The statutory purpose of the provisions is to promote private enforcement of the Civil Rights Acts. S.Rep.No. 94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S. Code Cong. & Ad. News 5908, 5912. Although the statutory language makes the award of attorneys’ fees discretionary, the general rule which has developed indicates that the prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). That statement was further explained in N.Y. Gaslight Club, Inc. v. Kerry, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980): [I]t is clear that one of Congress’ primary purposes in enacting ... [Section 706(k) ] was to ‘make it easier for a plaintiff of limited means to bring a meritorious suit.’... Because Congress has cast the Title VII plaintiff in the roll of ‘a private attorney general,’ vindicating a policy ‘of the highest priority,’ a prevailing plaintiff ‘ordinarily is to be awarded attorney’s fees in all but special circumstances.’ [Citations omitted.] It is clear that Congress intended to facilitate the bringing of discrimination complaints. 447 U.S. at 63, 100 S.Ct. at 2030. This court has interpreted Newman and the applicable legislative history to indicate that “[a] prevailing plaintiff in a § 1983 action should receive fees almost as a matter of course....” Busch e v. Burkee, 649 F.2d 509, 521 (7th Cir.), cert. denied, 50 U.S.L.W. 3278 (Oct. 13, 1981) (quoting Davis v. Murphy," }, { "docid": "12138877", "title": "", "text": "and from co-workers. In reaching an award, Judge Winter considered the fact that Cowan had not been subjected to overt racism or public humiliation, that the upper management of Prudential was not aware that race played a role in the failure to promote Cowan and had offered Cowan three other, though less attractive, sales manager positions in other parts of New England, that Cowan himself was the cause of some of the humiliation he suffered and some of the difficulties he had with co-workers (in that he told clients that he would be promoted and that he criticized co-workers in a newspaper article), and that Cowan had not sought counseling. Appellant does not challenge the factual bases for these findings, but rather argues that the district court considered factors not in keeping with the remedial purposes of section 1981 and Title VII. But each of the factors was directly relevant to whether and to what extent Prudential caused Cowan’s emotional distress. Appellant characterizes Judge Winter’s findings as if he deducted amounts from a larger figure in order to reach $15,000. Rather, Judge Winter distinguished the injuries he believed to be caused by the discrimination from those caused by other factors. Given the unquantifiable nature of the injuries, and the substantial deference we afford to the court in awarding damages, we will not substitute our views for those of the trial court. Cross-Appeal Prudential’s claim that the district court decided the issue of liability on a theory of the case which was not advanced by either party is without merit. The court followed the test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), in finding that Cowan had made out a prima facie case of discrimination under Title VII, noting that Cowan had proven that he was a member of a racial minority, that he sought and was qualified for a promotion which Prudential intended to make, that he was rejected, despite his qualifications, and that a non-minority employee was offered the position. See also Watson v. Fort Worth Bank" }, { "docid": "17978257", "title": "", "text": "from that described by the plaintiffs here. After reviewing a number of other similar cases, the court ordered a remittitur reducing damages for emotional distress from $125,000 to $20,000. Id. at 330-32. Similarly, in McIntosh v. Irving Trust Co., 887 F.Supp. 662 (S.D.N.Y.1995), a case also involving a termination with similar evidence oí emotional distress, the court considered an extensive array of cases and authorities before ordering a remittitur reducing the plaintiffs damages for emotional distress to $20,000. Having reviewed those cases, the cases cited therein, and others, the court concludes that the maximum amount of damages to be awarded to the plaintiffs for emotional distress without shocking the judicial conscience is $20,000 for each of the plaintiffs Ethridge, Sefton, Hogan and Duryee, and $30,000 for the plaintiff Hiller. See generally, Cowan v. Prudential Insurance Co. of America, 852 F.2d 688, 691 (2d Cir.1988); Ortiz-Del Valle v. National Basketball Ass’n, 42 F.Supp.2d 334 (S.D.N.Y.1999); Funk v. F & K Supply, Inc., 43 F.Supp.2d 205 (N.D.N.Y.1999); Borja-Fierro v. Girozentrale Vienna Bank, No. 91 Civ. 8743, 1994 WL 240360 (S.D.N.Y. May 27, 1994). Thus, the court conditionally grants a new trial as to damages for each plaintiff who does not accept the remitted amount above. III. The plaintiffs have moved for an award of their attorneys’ fees and litigation expenses. Plaintiffs who are successful on at least some of their claims in civil rights cases are entitled to such awards, and the standards for making such awards are the same whether made under Title VII or 42 U.S.C. § 1988. See Hensley v. Eckerhart, 461 U.S. 424, 433 & n. 7,103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A plaintiff may be considered a “prevailing party,” and thus eligible for an award of attorneys’ fees, even if he or she does not prevail on the central issue in a case or obtain the primary relief sought. LeBlanc-Stemberg v. Fletcher, 143 F.3d 748, 757 (2d Cir.1998). When a plaintiff has succeeded on less than all of the claims in the action, however, a reduction in 'the attorneys’ fees award must be made if the" }, { "docid": "7272893", "title": "", "text": "objection, included awards for back-pay and compensatory damages only. See Verdict Form at 2 (Document No. 73). . Plaintiff filed a notice of appeal on January 28, 1997. (Document No. 86) of this Court's Order of January 14, 1997. . The relevant statute provides: In any action or proceeding under [Title VII] the court, in its discretion, may allow the prevailing party, ... a reasonable attorney’s fee (including expert fees) as part of the costs.... 42 U.S.C. § 2000e-5(k) (Supp.1993). . In Farrar, the Supreme Court dealt not with 42 U.S.C. § 2000e-5(k), but with the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. Congress intended that § 2000e-5(k) and § 1988 follow similar standards. See S.Rep. No. 1011, 94th Cong., 2d Sess. 3-4, reprinted in 1976 U.S.C.C.A.N. 5908, 5912; see also Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983); Commonwealth v. Flaherty, 40 F.3d 57, 60-61 (3d Cir.1994); Sullivan v. Pennsylvania Dep’t of Labor and Indus., 663 F.2d 443, 447 n. 5 (3d Cir.1981) (stating that cases interpreting 42 U.S.C. § 1988 can be applied to Title VII as well), cert. denied, 455 U.S. 1020, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982). .The cases on which plaintiff also relies, Stewart v. Weis Markets, Inc., 890 F.Supp. 382 (M.D.Pa.1995), and Noble v. Herrington, 732 F.Supp. 114 (D.D.C.1989), can be distinguished. The plaintiff in Stewart, unlike in the case sub judice, was awarded compensatory damages under her state law claim for sexual harassment. Stewart, 890 F.Supp. at 396. In Noble, although there is no mention whether the plaintiff was awarded any damages, the defendant did not dispute that plaintiff was a prevailing party, unlike the defendant in the case at bar. Noble, 732 F.Supp. at 115-16. . Should the Court of Appeals of the Third Circuit render a ruling in favor of plaintiff on plaintiff's appeal of this Court's Order of January 14, 1997, plaintiff may then file an appropriate motion for attorneys' fees with this Court." }, { "docid": "460201", "title": "", "text": "the [complainant’s] representative, and the agency cannot reach an agreement on the amount of attorney’s fees or costs ... the agency shall issue a decision determining the amount of attorney’s fees or costs due.... The decision shall include a notice of right to appeal to the EEOC.... 29 C.F.R. § 1614.501 (e)(2)(ii)(A) (1995). . The Agency did not dispute the amount of costs requested by Chris with regard to her third complaint of discrimination. . An award of attorney’s fees and costs under Title VII is authorized by 42 U.S.C. § 2000e-5(k), which states: In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United Slates shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(lt). . Although Chris is an employee of the federal government, the ability of federal employees to seek attorney’s fees and costs is subject to the same statutory provisions as private sector employees. See 42 U.S.C. § 2000e-16(d) (incorporating by reference 42 U.S.C. § 2000e-5(f) through (k) to any \"civil action[ ]” brought by a federal employee under Title VII). . 42 U.S.C. § 1988(b) provides: In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. § 2000bb et seq.l title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.}, or Section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.... 42 U.S.C. § 1988(b) (footnote omitted). . Because we conclude that the district court lacked subject matter jurisdiction under 42 U.S.C. § 2000e-5(f)(3), we need not address the CIA’s alternative argument that Chris, upon agreeing that any fee dispute would" } ]

[ { "docid": "18074678", "title": "", "text": "do so without permission, Skeen hit him in the head with a slapjack and handcuffed him. After this attack Skeen arrested Powell for assault and battery, disturbing the peace, and resisting arrest, of which he was subsequently acquitted. Powell filed this action against Shopco and Skeen in October 1980, charging inter alia that Skeen, while acting under the col- or of State law, had deprived him of his civil rights. To repeat, Shopco’s liability was laid solely on principles of respondeat superior. The District Court, July 21, 1981, granted Shopeo’s motion for judgment on the pleadings, holding that respondeat superior could not be invoked under section 1983 In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipal corporation cannot be saddled with section 1983 liability via respondeat superior alone. We see this holding as equally applicable to the liability of private corporations. Two aspects of Monell exact this conclusion. The Court found section 1983 evincing a Congressional intention to exclude the imposition of vicarious answerability. For a third party to be liable the statute demands of the plaintiff proof that the former “caused” the deprivation of his Federal rights. 436 U.S. at 691-92, 98 S.Ct. at 2036. Continuing, the Court observed that the policy considerations underpinning the doctrine of respon-deat superior insufficient to warrant integration of that doctrine into the statute. Id. at 694, 98 S.Ct. at 2037. No element of the Court’s ratio decidendi lends support for distinguishing the case of a private corporation. With appellant Powell’s Federal claim against Shopco fatally flawed, the judgment of the District Court is AFFIRMED. . The statute provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured" } ]

[ { "docid": "2461915", "title": "", "text": "the Supreme Court has not directly said whether Monell applies to private corporations, and there are powerful reasons to say no. Yet we and all other circuits that have considered the question have said yes. Why? It’s not easy to say. Our opinion in Iskander and virtually all of the circuit opinions after Monell simply cite one or more prior cases that all seem to trace back to the terse Fourth Circuit opinion in Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir.1982). The relevant portion of that opinion said in full: In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipal corporation cannot be saddled with section 1983 liability via respondeat superior alone. We see this holding as equally applicable to the liability of private corporations. Two aspects of Monell exact this conclusion. The Court found section 1983 evincing a Congressional intention to exclude the imposition of vicarious answerability. For a third party to be' liable the statute demands of the plaintiff proof that the former “caused” the deprivation of his Federal rights. 436 U.S. at 691-92, 98 S.Ct. 2018. Continuing, the Court observed that the policy considerations underpinning the doctrine of respondeat superior insufficient to warrant integration of that doctrine into the statute. Id. at 694, 98 S.Ct. 2018. No element of the Court’s ratio decidendi lends support for distinguishing the case of a private corporation. 678 F.2d at 506. There are good reasons to question the Powell conclusion. It overlooked the fact that Monell was focused on the Sherman Amendment, which would have imposed liability for mere failure to prevent harm caused by private citizens, not employees controlled by an employer. It also overlooked the fact that respondeat superior liability was already a well established part of the common law in 1871, so Congress could reasonably have expected the courts to apply the doctrine under § 1988. Perhaps most important, the Powell opinion simply overlooked the Monell Court’s special solicitude for municipalities and their budgets. These omissions counsel against" }, { "docid": "14574567", "title": "", "text": "(1977); Adams v. Pate, 445 F.2d 105, 107 n.2 (7th Cir. 1971). See generally Annot. 51 A.L.R.Fed. 285 (1981). Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights. Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir. 1974) (alternative holding); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054 (E.D.N.Y.1976); Weiss v. J. C. Penney Co., 414 F.Supp. 52 (N.D.Ill.1976). Contra Classon v. Shopco Stores, Inc., 435 F.Supp. 1186, 1187-88 (E.D.Wisc.1977) (misinterpreting, in our view, the significance of certain conclusory language in Adickes v. S. H. Kress and Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970), a case in which the vicarious liability issue appears not to have been raised). In order to warrant submission of her case against Zayre to the jury, plaintiff had to show an “impermissible policy” or a “constitutionally forbidden” rule or procedure of Zayre, Polk Co. v. Dodson, supra, 454 U.S. at 326, 102 S.Ct. at 454, which was the “moving force of the constitutional violation.” Monell v. Department of Social Services, supra, 436 U.S. at 694, 98 S.Ct. at 2037. Even assuming that plaintiff proved that her detention by the store detective was without probable cause and invaded her civil rights, that single act of unconsti tutional conduct does not support the inference that the conduct was pursuant to an impermissible Zayre policy. See Powe v. City of Chicago, supra, 664 F.2d at 650. Indeed, the only link between Zayre’s policies and the store detective’s actions advanced by plaintiff is the conclusory testimony that he was acting in accordance with Zayre’s operating procedures pertaining to shoplifting suspects. This statement, however, is wholly insufficient to raise a triable issue of whether Zayre had an unconstitutional policy or" }, { "docid": "1556807", "title": "", "text": "law.” See Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (E.D.N.Y.1986); Thompson v. McCoy, 425 F.Supp. 407, 410-11 (D.S.C.1976); cf. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951) (private detective who held a Special Police Officer’s Card issued by the City of Miami held to be acting “under color of law,” even though employed by private corporation). Consequently, the Officers are subject to suit under § 1983. B. The Doctor In order to state a claim for relief against a private individual under § 1983, plaintiff must allege a conspiracy between the individual and those acting “under col- or of state law” to deprive plaintiff of his constitutionally protected interests. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). The Supreme Court has made it clear that a defendant need not be a state agent for his actions to be actionable under § 1983. “Private persons, jointly engaged with state officials in the challenged action, are acting ‘under color’ of law for purposes of § 1983 actions.” Id. at 27-28, 101 S.Ct. at 186. Because plaintiff has alleged that the Doctor conspired with the Officers, who, for the reasons set forth above, were acting “under color of state law,” plaintiff has satisfied the requirement for maintaining a § 1983 action against this private defendant. C. The Hospital Plaintiff alleges that the Hospital is vicariously liable for the constitutional torts of its employees, the Officers and Doctor. While it is clear that vicarious liability may not be imposed under § 1983 upon a municipality, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), neither the Supreme Court nor the Second Circuit appear to have addressed directly the issue of whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. However, numerous courts in other jurisdictions have held that a corporate employer is not vicariously liable, relying on the reasoning of Monell. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 128-29" }, { "docid": "11351467", "title": "", "text": "laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3); See Bowen v. Rubin, 2002 U.S. Dist. LEXIS 25283 at *5-9. Defendants argue that plaintiffs have failed to adduce sufficient admissible evidence of their participation in the conspiracy to defeat summary judgment. The Americare Defendants argue, and plaintiffs do not dispute, that they may not be held liable for conspiracy under Section 1985(3) solely on a theory of respondeat superior liability. Instead, plaintiffs, borrowing the standard applicable to municipal corporations from Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), seek to show that defendants are liable by virtue of an official policy or custom of the corporation. Monell’s bar against vicarious liability under Section 1983 has been extended to private corporations. See Rojas v. Alexander’s Department Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990) (noting that “[although Monell dealt with municipal employers, its rationale has been extended to private businesses”); Mejia v. City of New York, 228 F.Supp.2d 234, 243 (E.D.N.Y.2002) (“[N]either a municipality nor a private corporation can be held vicariously liable under § 1983 for the actions of its employees.”). Monell’s prohibition against vicarious liability in the context of Section 1983 claims also has been extended to claims brought against municipal corporations under Section 1985. See Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.1979); Estes-El v. New York State Dep’t of Motor Vehicles Office of Admin., 1997 WL 342481, *5, 1997 U.S. Dist. LEXIS 8779, *15 (S.D.N.Y.1997) (“As with section 1983, a section 1985 claim may not be based solely on the doctrine of respondeat superior. ”). Although defendants argue that Monell’s “official policy or custom” standard of liability has never been extended to private businesses in a Section 1985(3) claim, they offer no persuasive reason why this standard should not apply to private employers as well. In Rojas, the court stated that private employers are not liable under Section 1983 for the constitutional torts of their employees “unless the plaintiff proves that ‘action pursuant to official ... policy" }, { "docid": "23119076", "title": "", "text": "0.C.G.A. § 37-3-43. Within a week, Mr. Harvey and his lawyer, Mr. Perry, obtained an order from Berrien County Probate Judge John P. Webb appointing Mr. Harvey as his wife’s emergency guardian. Mrs. Harvey was then transferred to Duke University Hospital in North Carolina. In April 1989, appellant filed suit against Mr. Harvey, Dr. Hunter, Dr. Friedman, Charter and Mr. Perry, claiming that she had been involuntarily incarcerated, given medications against her will, and never informed of her procedural rights under the Georgia Mental Health Act, O.C.G.A. § 37-3-1, et seq. Mrs. Harvey alleged that these violations arose as the result of a conspiracy among the doctors, Mr. Harvey and Charter to deprive her of her rights. In a second count, she charged that Mr. Harvey and his lawyer, Mr. Perry, falsely informed Judge Webb of her condition so that the resulting guardianship order failed to comport with Georgia law. Each defendant filed a motion to dismiss, and the motions were granted by the district court Harvey v. Harvey, 749 F.Supp. 1118 (M.D.Ga.1990). DISCUSSION CHARTER The initial barrier to appellant’s relief from Charter is that the actions she questions are actually the actions of Charter’s employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medication against her will. The hospital organization did not take these steps, hospital employees did. A defendant cannot be held liable under section 1983 on a respondeat superi- or or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a municipal corporation, but every circuit court to consider the issue has extended the holding to private corpora tions as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc), vacated on other grounds, 489" }, { "docid": "15207525", "title": "", "text": "SABIS Plaintiff attempts to hold SA-BIS liable under § 1983 for the acts of its agents. However, “just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982). Therefore, to hold SABIS liable for its employees’ unconstitutional acts, plaintiff must allege that SABIS’s official policy or custom was the “moving force of the constitutional violation.” Id. (quoting Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (U.S.1978)). The complaint fails to allege that any “official policy or custom” of SABIS was the “moving force” behind its agents’ deprivation of plaintiffs civil rights. Id. The complaint alleges that Ralph Bistany: (1) stated that “it is not the SABIS way” to hire male teachers for lower school positions; (2) stated that it is “the SABIS way to hire only native speakers to teach foreign language;” and (3) insisted that plaintiff implement the SABIS disciplinary code that was determined to be illegal under the IDEA. While Bistany’s statements suggest that SABIS has certain hiring and student selection policies that may violate prospective teachers’ and students’ civil rights, nowhere in the complaint does plaintiff allege that a SABIS policy or custom contributed to its agents’ decision to terminate plaintiffs employment without dué process or to undermine his reputation because he complained about discrimination against others. To the contrary, the complaint alleges that SABIS’s official policy, as expressed in the handbook, is not to retaliate in any way against employees who report violations of federal or state laws. Count V(E) against SABIS is dismissed. B. The Foundation As a municipal actor, the same “official policy or custom” requirement applicable to private corporations is applicable to the Foundation. See Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir.1993). Like the complaint’s deficiency with respect to SABIS, the complaint fails to allege that the" }, { "docid": "15490248", "title": "", "text": "Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981) overruled in part, on other grounds Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978). The second prong of the standard is not at issue in this case as Alexander’s does not dispute the district court’s ruling that its employment of Luck as a Special Police Officer satisfied § 1983’s “under color of” state law requirement. Rojas is not suing Luck, the arresting, “quasi-public” officer, and Luck’s employer, Alexander’s, is not responsible for the illegal arrest under the tort theory of re-spondeat superior in suits brought under § 1983. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453-54, 70 L.Ed.2d 509 (1981). Private employers are not liable under § 1983 for the constitutional torts of their employees, see Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir.1974), unless the plaintiff proves that “action pursuant to official ... policy of some nature caused a constitutional tort.” Monell v. Dep’t of Social Serv. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (emphasis added). See also Weeks, Personal Liability Under Federal Law: Major Developments Since Monell, in Section 1983: Sword and Shield, 295, 299 (Reilich and Carlisle ed. 1983). Although Monell dealt with municipal employers, its rationale has been extended to private businesses. See, e.g. Iskander, supra, at 128-29; Powell, supra, at 506; Smith v. Brookshire Bros., 519 F.2d 93, 94 (5th Cir.1975) (per curiam) (the mere fact that the store manager may have made a mistake in detaining customers suspected of shoplifting does not, by itself, make the store owner liable to customers for damages); Draeger, supra, at 145-46. Thus, to recover under § 1983, it is not enough for Rojas to show that his" }, { "docid": "23119077", "title": "", "text": "The initial barrier to appellant’s relief from Charter is that the actions she questions are actually the actions of Charter’s employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medication against her will. The hospital organization did not take these steps, hospital employees did. A defendant cannot be held liable under section 1983 on a respondeat superi- or or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a municipal corporation, but every circuit court to consider the issue has extended the holding to private corpora tions as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to public defendants). We believe the same holds true for Charter: the hospital cannot be faulted for the conduct of its employees. Even if Mrs. Harvey could attribute liability to Charter directly and not vicariously, she is unable to state a claim for section 1983 relief. A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Taking the factual allegations of Mrs. Harvey’s complaint as true, which we must do when reviewing motions to dismiss, Walker Process Equip, v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965), we see a" }, { "docid": "22902930", "title": "", "text": "be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at -, 114 S.Ct. at 1982-83. There is ample evidence of the reasonableness of Turner’s actions in regard to staffing at MDCDF: staffing levels were maintained consistent with the requirements of the Tennessee Corrections Institute and the American Corrections Association. Neither the faulty phone system, allegedly responsible for Street’s original argument with Harris, nor that argument itself, created a substantial risk of serious harm to Street. Even taking the facts and the inferences drawn from those facts in the light most favorable to Street, there are no genuine issues of fact as to whether Turner was deliberately indifferent to a substantial risk of serious harm to Stephen. C. There are genuine issues of fact only as to whether Stephen violated Street’s Eighth Amendment rights. There was no evidence presented that indicated that Stephen’s deliberate indifference to the risk of harm to Street (i.e., his failure to take action in light of Harris’ questions) was undertaken pursuant to any policy or custom of CCA or because of the inadequacy of Stephen’s training. Therefore, CCA’s only potential liability is vicarious liability for the actions of Stephen. A defendant cannot be held liable under section 1983 on a respondeat superior or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 ... (1978). Monell involved a municipal corporation, but every circuit to consider the issue has extended the holding to private corporations as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126; 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc); vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 ... (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to" }, { "docid": "968460", "title": "", "text": "doctrine of respondeat superior. Under existing precedent, neither public nor private entities may be held vicariously liable under § 1983. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (discussing municipal liability); Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (extending Monell to suits against private corporations) (citations omitted). Though we have recently questioned whether the rule against vicarious liability should indeed apply to private companies, see Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 786, 789-95 (7th Cir. 2014), we again leave that question for another day. Dr. Al-Shami is not liable, so — even if the theory of respondeat superior were available — neither is his employer. B. The State-Law Claims Collins also brought a medical-malpractice claim against Dr. Al-Shami and Advanced Correctional Healthcare under Indiana law. (There is no dispute that re-spondeat superior applies in Indiana.) To succeed on such a claim, Collins must show that Dr. Al-Shami owed Collins a duty of care, that the doctor’s actions did not conform to that standard of care, and that Collins was proximately injured by the doctor’s breach. See McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 910 (Ind. 2009). Collins seeks, to avoid summary judgment on his state-law claims using the same evidence he presented in support of his § 1983 claims. That evidence, however, for reasons already discussed, is insufficient to create a genuine issue of material fact. The state-law claims against Dr. Al-Shami and Advanced Correctional Healthcare were correctly dismissed. III. Conclusion For the foregoing reasons, we Affirm the judgment of the district court. . Collins initially sued several employees of Jackson County and the City of Seymour, as well, but settled with those defendants in April 2015. The term “defendants,” as used in this opinion, therefore refers only to Dr. Al-Shami and Advanced Correctional Healthcare. . Available at http://www.aafp.org/afp/2004/ 0315/p 1443.html (last visited March 20, 2017). . The “[s]ource” of the protocol is listed as the \"Physician Advisory Board.”" }, { "docid": "1556808", "title": "", "text": "of § 1983 actions.” Id. at 27-28, 101 S.Ct. at 186. Because plaintiff has alleged that the Doctor conspired with the Officers, who, for the reasons set forth above, were acting “under color of state law,” plaintiff has satisfied the requirement for maintaining a § 1983 action against this private defendant. C. The Hospital Plaintiff alleges that the Hospital is vicariously liable for the constitutional torts of its employees, the Officers and Doctor. While it is clear that vicarious liability may not be imposed under § 1983 upon a municipality, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), neither the Supreme Court nor the Second Circuit appear to have addressed directly the issue of whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. However, numerous courts in other jurisdictions have held that a corporate employer is not vicariously liable, relying on the reasoning of Monell. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a" }, { "docid": "2461901", "title": "", "text": "in Mississippi with several African American students. She had been refused service and was then arrested when she left the restaurant. The Supreme Court reversed summary judgment for the restaurant and explained that the plaintiff could recover from the restaurant if she could prove “that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.” 398 U.S. at 152, 90 S.Ct. 1598. In other words, the Court indicated that a private corporation could be held liable under § 1983 on a theory of respondeat superior liability. Interestingly, Adickes was decided at a time when a municipal government could not be held liable at all under § 1983. For present purposes, the next pivotal decision was Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell first overruled Monroe in part and held that a local government could be sued as a person under § 1983. Id. at 690, 98 S.Ct. 2018. The Court then considered the issue of respondeat superior liability under § 1983, and held that “respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees.” Id. at 663 n. 7, 98 S.Ct. 2018. The Court held instead that a local government could be held liable under § 1983 only if the government’s own policy or custom had caused the violation. Id. at 694, 98 S.Ct. 2018. In a number of decisions since Monell, our court has applied the Monell standard to private corporations. We said it first in Iskander: “Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, [Monell, 436 U.S. at 694, 98 S.Ct. 2018], a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” 690 F.2d at 128; see also Gayton v. McCoy, 593 F.3d" }, { "docid": "2461902", "title": "", "text": "could be sued as a person under § 1983. Id. at 690, 98 S.Ct. 2018. The Court then considered the issue of respondeat superior liability under § 1983, and held that “respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees.” Id. at 663 n. 7, 98 S.Ct. 2018. The Court held instead that a local government could be held liable under § 1983 only if the government’s own policy or custom had caused the violation. Id. at 694, 98 S.Ct. 2018. In a number of decisions since Monell, our court has applied the Monell standard to private corporations. We said it first in Iskander: “Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, [Monell, 436 U.S. at 694, 98 S.Ct. 2018], a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” 690 F.2d at 128; see also Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir.2010); Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 822 (7th Cir.2009); Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917, 927 (7th Cir.2004). All other circuits that have addressed the issue have reached the same conclusion, extending the Monell standard to private corporations. Such a unified phalanx of decisions from our own and other circuits is entitled to considerable respect. Upon closer examination, however, there are substantial grounds to question the extension of the Monell holding for municipalities to private corporations. A close look at the reasoning of Monell provides no persuasive reason to extend its holding to private corporations. Monell gave two reasons for barring respondeat superior liability for municipalities under § 1983. First, the Court focused on the language of § 1983, which imposes liability on a person who “shall subject, or cause to be subjected,” any person to a deprivation of Constitutional rights: The italicized language [of causation] plainly imposes liability on a government that, under color of some official policy, “causes” an employee to violate" }, { "docid": "1556809", "title": "", "text": "(7th Cir.1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10 Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). I agree that there is no tenable reason to distinguish a private employer from a municipality. Thus, a private corporate employer may not be vicariously liable under § 1983. This is not to say that a private corporate employer is never liable under § 1983. Where a plaintiff alleges a conspiracy between the private employer and its employees who are acting “under color of state law,” a sufficient basis for potential liability exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858 (S.D.N.Y.1987). A further basis for liability would arise if plaintiff alleged that it was the Hospital’s policy to have its security guards engage in coercive practices or its medical staff to decline medical services to arrested persons. Such a policy would satisfy the requirement that a plaintiff show that the institution is the driving force behind the constitutional violation. See Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981); Rojas v. Alexander’s Dep’t Store, Inc., 654 F.Supp. 856, 858-59 (S.D.N.Y.1987). Yet another basis for liability against the Hospital would exist if plaintiff alleged that the Hospital received funding from or was controlled by the state to such an extent that its activities constitute state action for purposes of § 1983. See Davidson, M.D. v. Yeshiva University, 555 F.Supp. 75, 79 (S.D.N.Y.1982). Because plaintiff has made no such allegations, and because there is no vicarious liability against a private corporate employer under § 1983, the action against the Hospital is dismissed. CONCLUSION For the reasons set forth above, defendants’ motion to dismiss is granted in part and denied in part. SO ORDERED. . Plaintiff seeks to have the Officers dismissed from their employment at the Hospital and to have the American Medical Association consider the Doctor's actions. ." }, { "docid": "11147659", "title": "", "text": "Addington, the defendants will have to prove that they complied with the standards articulated in the Wyoming Emergency Detention Statute by clear and convincing evidence to prevail at trial. b. the Monell doctrine. If defendant Wyoming Medical Center is not entitled to qualified immunity under Wyatt v. Cole, then the same reasoning precludes Wyoming Medical Center from asserting municipal immunity pursuant to Mo-nell v. New York City Dep’t of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court held that a municipality cannot be held liable under a respondeat superior theory. Instead, Monell requires that “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, [must] inflict[ ] the injury” for the municipality to be liable. 436 U.S. at 694, 98 S.Ct. at 2038. After Monell, several circuits held that “municipal immunity” extended to private corporations that acted under color of state law. See, e.g., Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990) (Monell’s rationale extends to private businesses even though Monell itself dealt with municipal employers); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (private corporation may not be held vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (nothing in Mo-nell suggests that municipal immunity should not be extended to a private corporation acting pursuant to § .1983). However, courts decided these cases before Wyatt. The Supreme Court articulated two “mutually dependent rationales” in support of Mo-nell-type immunity. See Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). First, “the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion.” Second, “the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public" }, { "docid": "7757027", "title": "", "text": "alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985))). Finally, the Court notes that various circuits have applied Section 1983 and its limitations as set forth in Monell to private institutions such as Georgetown University where such private institutions employ quasi-state actors. See Iskander v. Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (holding that an alleged shoplifter detained by a store detective must show that an “impermissible policy” or a “constitutionally forbidden” rule or procedure of the department store was the “moving force of the constitutional violation”) (“[J]ust as a municipal corporation is not vicariously liable upon a theory of respon-deat superior for the constitutional torts of its employees, a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” (internal citation omitted)); Powell v. Shopco Laurel Co., 678 F.2d 504, 505-06 (4th Cir.1982) (holding that an individual detained for alleged shoplifting by a state-licensed security guard could not bring suit pursuant to Section 1983 against the private employer of the guard solely on the principle of respondeat superior). See also Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2nd Cir.1990) (“[Plaintiff] is not suing ... the arresting, ‘quasi-public’ officer, and [the officer’s] employer [ ] is not responsible for the illegal arrest under the tort theory of respondeat superior in suits brought under § 1983. Private employers are not liable under § 1983 for the constitutional torts of their employees, unless the plaintiff proves that ‘action pursuant to official ... policy of some nature caused a constitutional tort.’ Although Monell dealt with municipal employers, its rationale has been extended to private businesses.” (internal citations omitted) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018)). “[A] corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies. The proper test is whether there is a policy, custom or action by those who represent official policy" }, { "docid": "14574566", "title": "", "text": "The question before us is whether there is any evidence upon which Zayre could be found liable under § 1983. Initially, it is clear that Zayre’s liability may not be based merely on the employer-employee relationship between it and the store detective. “Section 1983 will not support a claim based on a respondeat superior theory of liability.” Polk Co. v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). See also Powe v. City of Chicago, 664 F.2d 639, 649-51 (7th Cir. 1981); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981); Chapman v. Pickett, 586 F.2d 22, 27 (7th Cir. 1978); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071, 1083 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), disapproved on other grounds, Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981); McDonald v. Illinois, 557 F.2d 596, 601-02 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977); Adams v. Pate, 445 F.2d 105, 107 n.2 (7th Cir. 1971). See generally Annot. 51 A.L.R.Fed. 285 (1981). Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), a private corporation is not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights. Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir. 1974) (alternative holding); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054 (E.D.N.Y.1976); Weiss v. J. C. Penney Co., 414 F.Supp. 52 (N.D.Ill.1976). Contra Classon v. Shopco Stores, Inc., 435 F.Supp. 1186, 1187-88 (E.D.Wisc.1977) (misinterpreting, in our view, the significance of certain conclusory language in Adickes v. S. H. Kress and Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970), a case in which the vicarious liability issue appears not to" }, { "docid": "22902931", "title": "", "text": "questions) was undertaken pursuant to any policy or custom of CCA or because of the inadequacy of Stephen’s training. Therefore, CCA’s only potential liability is vicarious liability for the actions of Stephen. A defendant cannot be held liable under section 1983 on a respondeat superior or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 ... (1978). Monell involved a municipal corporation, but every circuit to consider the issue has extended the holding to private corporations as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126; 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc); vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 ... (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to public defendants). Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992). “[C]onsiderable conceptual difficulty would attend any search for the subjective state of mind of a government entity, as distinct from that of a government official.” Farmer, 511 U.S. at -, 114 S.Ct. at 1981. Summary judgment was properly granted to CCA. V. Street claims that CCA, Turner and Stephen are liable to him for the failure to exercise ordinary care under Tennessee law and that CCA is liable for the negligence of its agents and employees under Tennessee law. The district court had supplemental jurisdiction over Street’s state law claims. 28 U.S.C. § 1367. “District courts enjoy wide discretion in determining whether to retain supplemental jurisdiction over a state claim once all federal claims are dismissed....” Noble v. White, 996 F.2d 797, 799 (5th Cir.1993). As supplemental jurisdiction over Street’s state law claims was lacking after dismissal of the federal claims, the district court did not abuse its discretion in dismissing Street’s state law claims. On remand for consideration of Street’s claims against Stephen," }, { "docid": "15888070", "title": "", "text": "Mejias’ arrest was not patently abusive, and (3) that preclude even the availability of qualified immunity on their malicious prosecution claims to private actors in Airborne’s position. Accordingly, Airborne’s motion for summary judgment on plaintiffs’ § 1983 false arrest and malicious prosecution claims is denied. 4. Respondeat Superior Throughout the foregoing discussion, it was assumed that Airborne can be held liable under § 1983 for the actions of its employees in this case. Although Airborne did not raise the issue in its briefs, this assumption does not appear to be correct. As previously discussed, under Monell, a municipality cannot be held vicariously liable under § 1983 for the actions of its employees. See 436 U.S. at 694, 98 S.Ct. at 2037. Instead, a municipality can only be held liable if the constitutional violation of which a plaintiff complains resulted from an official custom, policy, practice, or usage of the municipality. See id. at 690-91, 98 S.Ct. at 2035-36. The Second Circuit, along with every other court of appeals that has considered the issue, has held that Monell applies with equal force to private corporations sued under § 1983. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.1990); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.1992); see also Draeger v. Grand Cent., Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (predating Monell, but holding that private employers are not liable under § 1983 for constitutional torts of their employees); Smith v. Brookshire Bros., 519 F.2d 93, 94 (1975) (per curiam) (same). Here, there is no evidence that Airborne had a corporate custom, policy, practice or usage of assisting law enforcement in making the type of improper controlled pickup alleged by plaintiffs. Moreover, although a private corporation, like a municipality, can be held liable under Monell for a single act of an employee with" }, { "docid": "3714736", "title": "", "text": "U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed. 2d 611 (1978); (2) corporate defendants similarly are not vicariously liable under § 1983, Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1432-33 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985) (cert. petition of private defendant T.G. & Y. Stores); (3) municipal defendants in § 1983 claims receive no qualified immunity defense, Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980); and therefore corporate defendants to § 1983 suits likewise should not be able to claim qualified immunity. The basic premise underlying DeVargas’ argument is that because the courts have extended the principle that municipalities are not vicariously liable under § 1983 to include corporate defendants, we should similarly extend the rule that municipalities are not entitled to qualified immunity to private corporations. We reject this premise. The issue of whether parties should be held vicariously liable is completely distinct from whether parties should be entitled to qualified immunity. The Supreme Court’s holding in Monell was based on congressional intent that § 1983 liability not be imposed vicariously. See Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036. Although Monell addressed only the liability of municipalities, the rationale of its holding applies equally to corporate defendants. Lusby, 749 F.2d at 1433; Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982). In the area of § 1983 immunities, the critical distinction is not between employer and individual defendants, but between defendants that are governmental bodies and other defendants. “[Different considerations come into play when governmental rather than personal liability is threatened.” Owen, 445 U.S. at 653 n. 37, 100 S.Ct. at 1416 n. 37. When the Court has addressed immunity of government actors who may be personally liable, it has made it clear that immunity in some form is the norm. See Harlow, 457 U.S. at 818 & n. 30, 102 S.Ct. at 2738 & n. 30. Similarly, we have just held generally that when private parties act pursuant to contractual duties and perform" } ]

[ { "docid": "3566721", "title": "", "text": "Act’s effective date. See Farmer v. Higgins, 907 F.2d 1041, 1044 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Mr. Ross invites our attention to several cases that hold that, once the possession of machineguns became illegal, the registration and taxing requirement was effectively rendered meaningless. See United States v. Dalton, 960 F.2d 121 (10th Cir.1992), cert. denied, — U.S.—, 114 S.Ct. 253, 126 L.Ed.2d 205 (1993); United States v. Rock Island Armory, Inc., 773 F.Supp. 117, 126 (C.D.Ill.1991). Thus, submits Mr. Ross, “the registration requirement is unconstitutional because Congress removed the underlying basis for the statute.” Appellant’s Br. at 17. In Rock Island Armory, a defendant was prosecuted under §§ 5822 and 5861 for failing to register machine guns that were manufactured after the effective date of § 922(o) of the 1986 Act. 773 F.Supp. at 125. The defendant pointed out that after the 1986 Act took effect, the government no longer would allow the registration of machineguns that had not already been properly registered. Thus, submitted the defendant, it was being prosecuted for failing to perform an impossible action. The district court agreed and held that the registration and taxing provisions of the earlier statute were impliedly repealed to the extent that they required actions that were no longer possible. In short, the court concluded that the 1986 Act “undercut the constitutional basis of registration which had been the rule since Sonzin-sky.” Rock Island Armory, 773 F.Supp. at 125. In United States v. Dalton, 960 F.2d 121 (10th Cir.1992), the Tenth Circuit followed the same reasoning. The court held that “[a]s a result of section 922(o), compliance with section 5861 is impossible.” Id. at 126. Consequently, the court vacated the defendant’s conviction on the ground that it was “constitutionally infirm.” Id. Five months later, the Tenth Circuit again had occasion to consider the intersection of § 922(o) and the registration requirements in § 5861 in United States v. Staples, 971 F.2d 608 (10th Cir.1992), cert. granted, — U.S.—, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993). In Staples, the court held that the" } ]

[ { "docid": "11393483", "title": "", "text": "5812, 5822; 27 C.F.R. § 179.105. .Statutes criminalizing the possession, transfer, and making of machine guns are merely malum prohibitum laws. In contrast to rape, murder, and robbery, such gun-related activities are not inherently bad; they are only technically or artificially illegal. Courts, however, must defer to Congress when it legislates pursuant to its enumerated powers. Thus, had Ardoin been properly indicted, prosecuted, and convicted under section 922(o ) of the FOPA, I would not now be dissenting. But I simply do not think that the NFA — which everyone concedes is a tax law^— can legitimately double as a per se prohibition against the possession of machine guns. . Indeed, I would personally support well-conceived efforts to do just that. . United States v. Dalton, 960 F.2d 121, 123 (10th Cir.1992). . See Dalton, 960 F.2d at 123 (referring to Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)). . 390 U.S. at 89, 88 S.Ct. at 726. . Id. at 95, 88 S.Ct. at 729. . Id. at 93, 88 S.Ct. at 728; see also Dalton, 960 F.2d at 123 (for a more detailed discussion of the Haynes opinion). . Dalton, 960 F.2d at 124 (quoting 1 W. LaFave & A. Scott, Jr., Substantive Criminal Law, § 3.3(c) at 291 (1986)). . Rock Island Armory, 773 F.Supp. at 119-21 (citing National Firearms Act: Hearings Before the House Comm. on Ways and Means, 73rd Cong., 2d Sess. 6-19 (1934). . See, e.g., United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953); Sonzinsky v. United States, 300 U.S. 506, 514, 57 S.Ct. 554, 556, 81 L.Ed. 772 (1937) (upholding the constitutionality of the NFA because it was \"productive of some revenue”); Bailey v. Drexel, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817 (1922) (holding the Child Labor Tax Act unconstitutional because it was primarily a penalty, not a tax); United States v. Dalton, 960 F.2d 121, 124-25 (10th Cir.1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117, 119 (C.D.Ill.1991). . Dalton, 960 F.2d at 124-25; Rock Island" }, { "docid": "12398979", "title": "", "text": "constitutionality of 26 U.S.C. § 5861(d) is firmly established, and we need not reconsider it. B. Notwithstanding the statute’s facial constitutionality, Gresham claims that his conviction violates the due process clause and belies the constitutional foundation of § 5861(d), because it was legally impossible for him to register the pipe bomb and thus comply with the requirements of the NFA. We disagree. The NFA forbids the manufacture or transfer of any firearm without the government’s advance permission. Permission shall be denied if the making, transfer or possession of the firearm would place the transferee in violation of the law. See 26 U.S.C. §§ 5812, 5822. If permission is not obtained, the registration requirement cannot be satisfied. See 26 U.S.C. § 5841(c). Consequently, Gresham complains that the NFA permits the government to deny registration, yet permits prosecution for possession of an unreg- istered firearm. This dilemma, he contends, violates the due process clause and belies the constitutional foundation of the statute. In support of this argument, Gresham cites two cases in which convictions obtained pursuant to § 5861(d) have been held unconstitutional, under circumstances similar to the instant ease. See, e.g., United States v. Dalton, 960 F.2d 121 (10th Cir.1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.I11.1991). These two courts held that a conviction for possession of an unregistered maehinegun, in violation of § 5861(d), would violate due process because the enactment of another statute, 18 U.S.C. § 922(o), made registration of the firearms impossible. Likewise, they held that a statute enacted under the taxing power, to facilitate the enforcement and collection of the tax, loses its constitutional foundation when the object of the tax is prohibited. See Dalton, 960 F.2d at 125; Rock Island Armory, 773 F.Supp. at 125. Accordingly, the two courts concluded, it would violate due process to convict a defendant for violations of a statute when compliance with it is legally impossible. This court rejected the same claim in United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994), holding that the enactment of § 922(o) did not absolve maehinegun owners of their" }, { "docid": "11393482", "title": "", "text": "both. 18 U.S.C. § 924(a)(1)(D) & (a)(2). . A citizen may only be convicted for knowingly violating section 922(o). 18 U.S.C. § 924(a)(2). In contrast, a citizen may be convicted under the NFA for \"violating] or failing] to comply with any provision.” 26 U.S.C. § 5871. . Section 5861 of the NFA alone lists twelve separate acts that constitute violations of the NFA. 26 U.S.C. § 5861. . United States v. Rock Island Armory, Inc., 773 F.Supp. 117, 119 (C.D.Ill.1991); accord United States v. Dalton, 960 F.2d 121, 123 (10th Cir.1992). . At trial the BATF consistently denied the existence of this circular. Subsequent events have revealed that the BATF’s denial was incorrect if not duplicitous. . The National Firearms Act of 1934, 26 U.S.C. §§ 5812, 5822 (emphasis added). . Id. . Rock Island Armory, 773 F.Supp. at 119 (citing 27 C.F.R. § 179.105). . See, e.g., United States v. Dalton, 960 F.2d 121 (10th Cir.1992); Rock Island Armory, 773 F.Supp. at 119. . See ante at 184. . Again, see 26 U.S.C. §§ 5812, 5822; 27 C.F.R. § 179.105. .Statutes criminalizing the possession, transfer, and making of machine guns are merely malum prohibitum laws. In contrast to rape, murder, and robbery, such gun-related activities are not inherently bad; they are only technically or artificially illegal. Courts, however, must defer to Congress when it legislates pursuant to its enumerated powers. Thus, had Ardoin been properly indicted, prosecuted, and convicted under section 922(o ) of the FOPA, I would not now be dissenting. But I simply do not think that the NFA — which everyone concedes is a tax law^— can legitimately double as a per se prohibition against the possession of machine guns. . Indeed, I would personally support well-conceived efforts to do just that. . United States v. Dalton, 960 F.2d 121, 123 (10th Cir.1992). . See Dalton, 960 F.2d at 123 (referring to Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)). . 390 U.S. at 89, 88 S.Ct. at 726. . Id. at 95, 88 S.Ct. at 729. . Id. at" }, { "docid": "15667514", "title": "", "text": "PER CURIAM. After a conservation officer encountered William W. Elliott with two handguns in his van and local law enforcement officers seized an unregistered AK-47 fully automatic machinegun at Elliott’s home, a jury convicted Elliott on three counts of being a felon in possession of a firearm, and one count each of possessing an illegal firearm and failing to register a firearm. See 18 U.S.C. §§ 922(g)(1) and 922(o)(l) (1994); 26 U.S.C. § 5861(d) (1994). Elliott appeals Ms convictions and sentence. . We affirm. In challenging Ms convictions for being a felon in possession of a firearm, Elliott contends he has no valid underlying felony conviction for the purposes of § 922(g)(1). Elliott argues his counseled guilty plea to an earlier Arkansas felony charge is constitutionally infirm because the trial judge failed to comply with Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). The holdings of the United States Supreme Court, however, foreclose Elliott’s collateral attack on Ms earlier plea-based conviction. See Lewis v. United States, 445 U.S. 55, 60-65, 100 S.Ct. 915, 918-20, 63 L.Ed.2d 198 (1980); see also Custis v. United States, 511 U.S. 485, 496-97, 114 S.Ct. 1732, 1738-39, 128 L.Ed.2d 517 (1994). Because this Court gave Elliott permission to file a pro se brief, we now turn to the arguments in Elliott’s brief. See Hoggard v. Parkett, 29 F.3d 469, 472 (8th Cir. 1994) (pro se briefs not accepted when a party is represented by counsel). Elliott contends his § 5861(d) conviction for failure to register the machinegun violates due process. Elliott' argues § 5861(d) was implicitly repealed by the later-enacted '§ 922(o)(l), which proMbits possession of a machinegun. Because Elliott can comply with both statutes by simply refusing to possess the maehinegun, we agree with the Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits that the statutes are reconcilable. See Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995); United States v. Ardoin, 19 F.3d 177, 179-80 (5th Cir.1994); United States v. Ross, 9 F.3d 1182, 1193-94" }, { "docid": "15667515", "title": "", "text": "55, 60-65, 100 S.Ct. 915, 918-20, 63 L.Ed.2d 198 (1980); see also Custis v. United States, 511 U.S. 485, 496-97, 114 S.Ct. 1732, 1738-39, 128 L.Ed.2d 517 (1994). Because this Court gave Elliott permission to file a pro se brief, we now turn to the arguments in Elliott’s brief. See Hoggard v. Parkett, 29 F.3d 469, 472 (8th Cir. 1994) (pro se briefs not accepted when a party is represented by counsel). Elliott contends his § 5861(d) conviction for failure to register the machinegun violates due process. Elliott' argues § 5861(d) was implicitly repealed by the later-enacted '§ 922(o)(l), which proMbits possession of a machinegun. Because Elliott can comply with both statutes by simply refusing to possess the maehinegun, we agree with the Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits that the statutes are reconcilable. See Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995); United States v. Ardoin, 19 F.3d 177, 179-80 (5th Cir.1994); United States v. Ross, 9 F.3d 1182, 1193-94 (7th Cir.1993), vacated on other grounds, 511 U.S. 1124, 114 S.Ct. 2129, 128 L.Ed.2d 860 (1994); United States v. Jones, 976 F.2d 176, 182-83 (4th Cir.1992); but see United States v. Dalton, 960 F.2d 121, 123-24 (10th Cir. 1992). In sum, Elliott was fairly convicted under § 5861(d). Claiming he never fired the machinegun and did not know it was an automatic, Elliott also contends the Government failed to prove he knowingly possessed the weapon. Because Elliott possessed the machinegun and observed its characteristics, Elliott’s contention is foreclosed by our holding in United States v. Farrell, 69 F.3d 891, 894 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1283, 134 L.Ed.2d 228 (1996). We also reject Elliott’s challenge to his sentence. Our review shows the district court’s gmdeline sentence was correct. Finally, we have considered Elliott’s remaining contentions and find them without merit. We affirm Elliott’s convictions and sentence." }, { "docid": "6522596", "title": "", "text": "PER CURIAM: The National Firearms Act makes it unlawful for private citizens to possess unregistered firearms, and mandates denial of any application for registration of a firearm the possession of which is illegal. 26 U.S.C. §§ 5812, 5822. The Firearm Owners’ Protection Act makes it illegal for any person to possess a machine gun that was not lawfully possessed before the statute’s effective date of May 19,1986,18 U.S.C. § 922(o), and thus makes it impossible to comply with the National Firearms Act’s registration requirement with respect to machine guns not lawfully possessed before May 19,1986. William Hunter pled guilty to possession of an unregistered machine gun in violation of 26 U.S.C. § 5861(d). He subsequently filed a § 2255 motion to vacate his sentence on the ground that the statute under which he was convicted, read in the light of section 922(o), was unconstitutional. The district court denied the motion, and we affirm. I. Relying on United States v. Dalton, 960 F.2d 121 (10th Cir.1992), Hunter contends that criminalizing possession of an unregistered machine gun is fundamentally unfair because the statute prevents him from complying with the registration requirement, and that this unfairness renders his conviction unconstitutional. We disagree. Although this circuit in dictum has “note[d] with favor the analysis in Dalton,” U.S. v. Kurt, 988 F.2d 73, 75 (9th Cir.1993), three circuits have expressly rejected the Dalton holding. In U.S. v. Jones, 976 F.2d 176 (4th Cir.1992), the Fourth Circuit reasoned that the registration requirement is not unfair, even as to machine guns made illegal under § 922(o), because individuals “can comply with both acts by refusing to deal in newly-made machine guns,” 976 F.2d at 183. Although the passage of § 922(o) effectively rendered the possession of a machine gun a violation of both § 5861(d) and § 922(o), the Constitution does not forbid making the same conduct illegal under two statutes, and the government is permitted to prosecute under either one. See id.; United States v. Ross, 9 F.3d 1182, 1194 (7th Cir.1993); see also United States v. Ardoin, 19 F.3d 177, 180 (5th Cir.1994). In U.S." }, { "docid": "12398999", "title": "", "text": "on the argument that the ban on machineguns rendered the registration requirements and criminal penalties of the NFA unconstitutional. Ardoin, 19 F.3d at 179. Therefore, Ardoin necessarily decided the constitutional issue as a prerequisite to rejecting the theory of implicit repeal. Id. . The authority of Congress to tax illegal activity is firmly established. See, e.g., Department of Revenue v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994); Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). . See also United States v. Thomas, 15 F.3d 381, 382-83 (5th Cir. 1994) (affirming the denial of a motion for acquittal under § 5861(d) because defendant failed to demonstrate that pipe bombs cannot be registered). . Gresham offers no authority to support the proposition that registration of a pipe bomb is legally impossible, but he contends that registration of a pipe bomb is impossible as a practical matter. However true that may be, it does not undermine the constitutional basis of the statute. To the contrary, if possession of pipe bombs is not illegal per se, the registration requirement is reasonably related to the revenue purposes of the act and does not impose an unreasonable dilemma on Gresham. We express no opinion as to whether the prohibition against possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), would have been sufficient to render the registration of the pipe bomb legally impossible in this case, as Gresham does not suggest this alternative ground for our consideration. See United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995) (holding that the prohibition against possession of a firearm by a convicted felon does not render registration of such firearms “legally impossible”). . The mere fact that Gresham is exposed to prosecution for the same conduct under two different criminal statutes does not occasion a constitutional defect. The Constitution permits Congress to prohibit the same conduct under multiple statutes, provided the prosecution does not violate the Double Jeopardy Clause. See, e.g., Hunter, 73 F.3d at 262; Ross, 9 F.3d at" }, { "docid": "12398997", "title": "", "text": "issue in this case: whether Gresham was guilty of shipping the pipe bomb to Taylor. Although Meeks’s testimony corroborated the government’s theory of the ease, it was not necessary to obtain a conviction. Thus, the “newly discovered” evidence was cumulative, not material. Moreover, given the weight of the evidence amassed against Gresham, Meeks’s recantation is not sufficient to raise a reasonable doubt. Under these circumstances, it is impossible to conclude that this “newly discovered evidence” would probably result in an acquittal. See MMR Corp., 954 F.2d at 1046; Nixon, 881 F.2d at 1311. AFFIRMED. . For purposes of the NFA, the term \"firearm” includes \"destructive devices.” See 26 U.S.C. § 5845(a). \"Destructive devices,” in turn, include any “explosive bomb.” See 26 U.S.C. § 5845(f). Under this definition, the pipe bomb manufactured by Gresham qualified as a \"firearm” under the act. . See also United States v. Parker, 960 F.2d 498, 500 (5th Cir.1992) (discussing Ross). . Section 922(o ) outlaws the transfer or possession of all machineguns that were not lawfully possessed prior to the effective date of the statute. Because possession of machineguns manufactured or transferred after that date is illegal, their registration is legally impossible. See' 26 U.S.C. § 5812, 5822. . We declined to follow Dalton and Rock Island Armory in reaching our decision in Ardoin. See Ardoin, 19 F.3d at 179-80. Furthermore, the majority of courts addressing this question have agreed with our disposition, declining to follow Dalton and Rock Island Armory. See Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995); United States v. Ross, 9 F.3d 1182, 1192-94 (7th Cir. 1993), vacated on other grounds, 511 U.S. 1124, 114 S.Ct. 2129, 128 L.Ed.2d 860 (1994); United States v. Jones, 976 F.2d 176, 182-84 (4th Cir.1992). . Gresham attempts to distinguish Ardoin by claiming that the only issue in Ardoin was whether the enactment of § 922(o ) had implicitly repealed portions of the NFA. This distinction is superficial and unpersuasive, however, as the theory of implicit repeal considered in Ardoin was based" }, { "docid": "10933189", "title": "", "text": "and Firearms’ (“BATF”) agents admitted at trial that all applications will be denied if it is illegal to possess or transfer the weapon. See also 26 U.S.C. § 5812(a) (applications will be denied if possession of the firearm would place person in violation of law). Mr. Gambill concedes that the Government could have charged him with illegal possession of a machine gun under section 922(o), but the Government chose not to do so. Instead, the Government chose to prose cute Mr. Gambill under section 5861(d) with possession of an unregistered machine gun. A. Split in the Circuits This case presents an issue that the United States Court of Appeals for the Sixth Circuit is yet to decide: whether section 922(o) implicitly repealed portions of the NFA. A split of opinion exists in the circuits that have addressed this question. See United States v. Dalton, 960 F.2d 121 (10th Cir.1992) (unconstitutional to prosecute under section 5861(d)); United States v. Kurt, 988 F.2d 73 (9th Cir.1993) (favoring analysis in Dalton); but see United States v. Ardoin, 19 F.3d 177 (5th Cir.1994) (finding section 5861(d) and section 922(o) reconcilable because a citizen could comply with both by not possessing a machine gun); United States v. Ross, 9 F.3d 1182 (7th Cir.1993) (same); United States v. Jones, 976 F.2d 176 (4th Cir.1992) (same); United States v. Djelaj, 842 F.Supp. 278 (E.D.Mich.1994) (same). The Court finds the reasoning of Dalton to be correct, because convicting citizens for violating laws with which they cannot possibly comply is fundamentally unfair. It is hard to understand how any circuit could find such a conviction permissible when the provisions of the NFA have been totally eclipsed by section 922(o). Moreover, section 5861(d) cannot be complied with due to the refusal of the Government to permit compliance. 1. Implied Repeal of 5861(d) A statute is repealed by implication only when that statute and a later statute are irreconcilable. Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). We find section 922(o) and section 5861(d) irreconcilable in this case. Until the enactment of section 922(o)," }, { "docid": "12398981", "title": "", "text": "obligation to register such weapons and pay the tax as required by the NFA, nor did it immunize them from criminal prosecution if they failed to comply with the statute. Id. at 180. Furthermore, we held that prosecutions under § 5861(d) are constitutional, despite the fact that it is legally impossible to register machineguns in the wake of § 922(o). Id. Hence, we held that such prosecutions do not offend due process. The Ardoin court based its conclusions on two fundamental premises that apply with equal force in the instant ease. First, the court noted that Congress may tax illegal activity. Consequently, although § 922(o) prohibits the transfer and possession of machineguns not legally possessed prior to 1986, Congress may still tax the illegal possession of such machineguns and may still assess criminal penalties for failure to comply with the registration requirements promulgated to enforce the tax. Id. Insofar as the basis for the authority to regulate compliance with the registration requirements—the taxing authority—still exists, the Ardoin court held that the registration requirements are constitutional under the taxation power. Id. Likewise, even if Gresham was not legally entitled to possess a pipe bomb, the mere fact that his possession was illegal did not absolve him of the obligation to comply with the requirements of the NFA, nor did it preclude the government from prosecuting him for his failure to register the destructive device. The pipe bomb remained taxable under the NFA; therefore, the registration requirements and enforcement provisions of the NFA are constitutional and enforceable. Cf. Ardoin, 19 F.3d at 180. Indeed, the facts of this case are even less sympathetic than are those we found insufficient to merit relief in Ardoin. There, registration of the machineguns was legally impossible, as the object of the tax had been banned completely by § 922(o). No federal statute completely outlaws the possession of pipe bombs, however; therefore, their registration is not legally impossible. United States v. Gambill, 912 F.Supp. 287, 290 (S.D.Ohio 1996); accord United States v. Copus, 93 F.3d 269, 276 (7th Cir.1996). For this reason, the registration requirement governing pipe" }, { "docid": "11393450", "title": "", "text": "§ 102(9) of the Firearms Owners’ Protection Act of 1986 (“FOPA”), 18 U.S.C. § 922(o), which amended the Gun Control Act of 1968 by making possession of machineguns illegal, implicitly repealed portions of the NFA. We review such legal questions de novo. United States v. Guajardo, 950 F.2d 203, 206 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992). Ardoin argues that 26 U.S.C. §§ 5821, 5861(d), (e), (f), (l), 5871, and 5845 are unconstitutional because they were originally based upon Congress’s taxing power. He reasons that since individuals may not possess ma-chineguns manufactured after May 19, 1986, and ATF refuses to accept applications to register or to pay the tax on such weapons, the constitutional authority for provisions of the NFA dealing with the registration and taxing of post-1986 machineguns is gone. Consequently, criminal liability imposed under the NFA for failure to comply with these provisions has also been repealed. Ardoin cites United States v. Rock Island Armory, 773 F.Supp. 117 (C.D.Ill.1991), and United States v. Dalton, 960 F.2d 121 (10th Cir.1992), as authority for this position. In Rock Island Armory, the court held portions of the NFA to have been implicitly repealed by the FOPA Two bases exist for declaring the portions of the NFA pertaining to post-1986 machine-guns to have been implicitly repealed. First, the fact that ATF no longer collects taxes or accepts registration forms for such weapons makes compliance with § 5861(d) impossible. Second, and more importantly in the Rock Island Armory court’s view, the refusal to tax these weapons undercuts the constitutional basis of registration, since the NFA was originally upheld under Congress’s power to tax. The Tenth Circuit adopts this view in Dalton. The government cites United States v. Jones, 976 F.2d 176 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2361, 124 L.Ed.2d 260 (1993), to rebut these two arguments. The court held in Jones that in the absence of an affirmative showing of an intention to repeal a statute, the only permissible justification for repeal by implication is when the earlier and later statutes are" }, { "docid": "10933190", "title": "", "text": "F.3d 177 (5th Cir.1994) (finding section 5861(d) and section 922(o) reconcilable because a citizen could comply with both by not possessing a machine gun); United States v. Ross, 9 F.3d 1182 (7th Cir.1993) (same); United States v. Jones, 976 F.2d 176 (4th Cir.1992) (same); United States v. Djelaj, 842 F.Supp. 278 (E.D.Mich.1994) (same). The Court finds the reasoning of Dalton to be correct, because convicting citizens for violating laws with which they cannot possibly comply is fundamentally unfair. It is hard to understand how any circuit could find such a conviction permissible when the provisions of the NFA have been totally eclipsed by section 922(o). Moreover, section 5861(d) cannot be complied with due to the refusal of the Government to permit compliance. 1. Implied Repeal of 5861(d) A statute is repealed by implication only when that statute and a later statute are irreconcilable. Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). We find section 922(o) and section 5861(d) irreconcilable in this case. Until the enactment of section 922(o), a citizen could legally possess a machine gun, as long as he/she complied with the relevant registration and tax provisions of the NFA. See Ardoin, 19 F.3d at 183 (Wiener, J., dissenting) (“Simply put, since 1934 the NFA has said to such a citizen, “You may manufacture, transfer, or possess a machine gun if— but only if — you register and pay taxes on it.’ ”). Then, in 1986, Congress enacted section 922(o), which forbids the possession of any machine gun made after 1986. Congress did not indicate what effect section 922(o) would have on the NFA. “But undeniably the enactment of section 922(o) did effect the NFA — enormously.” Id. The NFA forbids the BATF to register and accept taxes for illegal firearms. Consequently, Congress’ enactment of section 922(o), which made the mere possession of machine guns by private citizens illegal, rendered the extensive taxation and registration provisions of the NFA meaningless. As Judge Wiener eloquently stated, “Their vestigial existence on the statute books analogizes perfectly to the human appendix: no useful function whatsoever," }, { "docid": "11393449", "title": "", "text": "filed a Form 1 instead of a Form 10 and should have paid a making tax. Ar-doin responded that the Welsh Police Department had authorized him to receive the weapons and that he was a commissioned officer acting on the department’s behalf. Furthermore, ATF had sent out a circular stating that it would no longer accept Form l’s and that the guns were tax-exempt, since they were made for a government agency. Ardoin was unable to obtain a copy of the ATF circular, and ATF agent Paul Rash testified that no such circular existed. A jury found Ardoin guilty on all twelve counts. He moved for a new trial after obtaining a copy of the ATF circular. The motion for new trial was denied. The sentencing court adopted the factual findings contained in the presentence investigation report (“PSR”), which recommended a range of forty-six to fifty-seven months’ imprisonment. Ardoin was sentenced to forty-six months on each of the twelve counts, to run concurrently. II. This case presents a novel constitutional issue in this circuit: whether § 102(9) of the Firearms Owners’ Protection Act of 1986 (“FOPA”), 18 U.S.C. § 922(o), which amended the Gun Control Act of 1968 by making possession of machineguns illegal, implicitly repealed portions of the NFA. We review such legal questions de novo. United States v. Guajardo, 950 F.2d 203, 206 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992). Ardoin argues that 26 U.S.C. §§ 5821, 5861(d), (e), (f), (l), 5871, and 5845 are unconstitutional because they were originally based upon Congress’s taxing power. He reasons that since individuals may not possess ma-chineguns manufactured after May 19, 1986, and ATF refuses to accept applications to register or to pay the tax on such weapons, the constitutional authority for provisions of the NFA dealing with the registration and taxing of post-1986 machineguns is gone. Consequently, criminal liability imposed under the NFA for failure to comply with these provisions has also been repealed. Ardoin cites United States v. Rock Island Armory, 773 F.Supp. 117 (C.D.Ill.1991), and United States v. Dalton, 960 F.2d" }, { "docid": "6522597", "title": "", "text": "is fundamentally unfair because the statute prevents him from complying with the registration requirement, and that this unfairness renders his conviction unconstitutional. We disagree. Although this circuit in dictum has “note[d] with favor the analysis in Dalton,” U.S. v. Kurt, 988 F.2d 73, 75 (9th Cir.1993), three circuits have expressly rejected the Dalton holding. In U.S. v. Jones, 976 F.2d 176 (4th Cir.1992), the Fourth Circuit reasoned that the registration requirement is not unfair, even as to machine guns made illegal under § 922(o), because individuals “can comply with both acts by refusing to deal in newly-made machine guns,” 976 F.2d at 183. Although the passage of § 922(o) effectively rendered the possession of a machine gun a violation of both § 5861(d) and § 922(o), the Constitution does not forbid making the same conduct illegal under two statutes, and the government is permitted to prosecute under either one. See id.; United States v. Ross, 9 F.3d 1182, 1194 (7th Cir.1993); see also United States v. Ardoin, 19 F.3d 177, 180 (5th Cir.1994). In U.S. v. Gann, 732 F.2d 714 (9th Cir.1984), we rejected an argument identical to that advanced by Hunter. Gann was convicted both of possession of a firearm by a felon and possession of an unregistered firearm. Id. at 721. Just as Hunter asserts it was unfair to charge him with possession of an unregistered machine gun since he could not register it, Gann argued that “since a felon cannot register a firearm, it is unfair to charge him with a separate crime for failing to do so.” Id. We rejected that argument. Id. Following Gann and Jones, we hold it was not unfair to convict Hunter of violating 26 U.S.C. § 5861(d). II. Hunter also argues we should follow Dalton’s holding that § 5861(d) is no longer within Congress’s power to tax. As with the fundamental fairness argument, three circuits have rejected Dalton’s reasoning, and we agree. We adopt the rationale of Jones, that requiring those who possess machine guns to register them is in aid of the taxing power even if the government no longer" }, { "docid": "12398982", "title": "", "text": "under the taxation power. Id. Likewise, even if Gresham was not legally entitled to possess a pipe bomb, the mere fact that his possession was illegal did not absolve him of the obligation to comply with the requirements of the NFA, nor did it preclude the government from prosecuting him for his failure to register the destructive device. The pipe bomb remained taxable under the NFA; therefore, the registration requirements and enforcement provisions of the NFA are constitutional and enforceable. Cf. Ardoin, 19 F.3d at 180. Indeed, the facts of this case are even less sympathetic than are those we found insufficient to merit relief in Ardoin. There, registration of the machineguns was legally impossible, as the object of the tax had been banned completely by § 922(o). No federal statute completely outlaws the possession of pipe bombs, however; therefore, their registration is not legally impossible. United States v. Gambill, 912 F.Supp. 287, 290 (S.D.Ohio 1996); accord United States v. Copus, 93 F.3d 269, 276 (7th Cir.1996). For this reason, the registration requirement governing pipe bombs is not a mere pretext for a police power, but is “part of the web of regulation aiding enforcement of the transfer tax provision in § 5811.” Ross, 458 F.2d at 1146. Under the circumstances of the instant case, therefore, the registration requirement is plainly constitutional. Second, to the objection that it would violate due process to convict a defendant for the possession of an unregistered firearm, when such registration is impossible because the defendant cannot legally possess the firearm, the Ardoin court had a ready answer: Just say no. If registration of the weapon is legally impossible, we explained, the defendant can comply with the registration requirement by not taking unlawful possession of an illegal weapon. Therefore, we held that prosecutions for failure to comply with the registration requirement do not violate the Due Process Clause, notwithstanding the fact that compliance may be legally impossible, because such prosecutions impose no “cruel dilemma” on defendants. Ardoin, 19 F.3d at 180 n. 4. Likewise, if it was legally impossible for Gresham to register the pipe" }, { "docid": "11393480", "title": "", "text": "of the Treasury’s BATF — an arm of the Executive branch — that advances this interpretation; Congress remains mute. With the NFA stripped of its revenue-raising function, I would void Ardoin’s conviction on this ground as well. For all of the foregoing reasons, I respectfully but earnestly DISSENT. . National Firearms Act of 1934: Hearings Before the House Committee on Ways and Means, 73rd Cong., 2d Sess. 6 (1934). . Id. at 8. . Id. . United States v. Rock Island Armory, Inc., 773 F.Supp. 117, 121 (C.D.Ill.1991) (emphasis added) (citing Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937), aff'g 86 F.2d 486 (7th Cir.1936)). . Firearms Owners’ Protection Act of 1986, 18 U.S.C. § 922(o). . Rock Island Armory, 773 F.Supp. at 119 (interpreting the FOPA). . Id. . Neither the BATF nor the majority indicates why the BATF continues to prosecute citizens under the NFA for mere possession of machine guns when Congress has enacted section 922(o ) of FOPA for that very purpose and when the relevant NFA provisions were enacted not to ban machine guns, but expressly to collect taxes from firearm-owning citizens. . United States v. Dalton, 960 F.2d 121 (10th Cir.1992); Rock Island Armory, 773 F.Supp. at 121 (discussing the legislative and judicial history of the NFA). . United States v. Jones, 976 F.2d 176, 184 (4th Cir.1992). . Morton v. Mancari, 417 U.S. 535, 549-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). . 976 F.2d 176. . See The National Firearms Act of 1934, 26 U.S.C. §§ 5812, 5822 (applications to register the transfer, making, or possession of firearms shall be denied if the transfer, making, or possession would be illegal) (emphasis added); 27 C.F.R. § 179.105. . A person who is convicted of violating any provision of the NFA is \"fined not more than $10,000, or be imprisoned not more than ten years, or both.” 26 U.S.C. § 5871. In contrast, a person who is convicted of violating section 922(o ) is fined not more than $5,000 or imprisoned not more than 10 years, or" }, { "docid": "12398998", "title": "", "text": "effective date of the statute. Because possession of machineguns manufactured or transferred after that date is illegal, their registration is legally impossible. See' 26 U.S.C. § 5812, 5822. . We declined to follow Dalton and Rock Island Armory in reaching our decision in Ardoin. See Ardoin, 19 F.3d at 179-80. Furthermore, the majority of courts addressing this question have agreed with our disposition, declining to follow Dalton and Rock Island Armory. See Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995); United States v. Ross, 9 F.3d 1182, 1192-94 (7th Cir. 1993), vacated on other grounds, 511 U.S. 1124, 114 S.Ct. 2129, 128 L.Ed.2d 860 (1994); United States v. Jones, 976 F.2d 176, 182-84 (4th Cir.1992). . Gresham attempts to distinguish Ardoin by claiming that the only issue in Ardoin was whether the enactment of § 922(o ) had implicitly repealed portions of the NFA. This distinction is superficial and unpersuasive, however, as the theory of implicit repeal considered in Ardoin was based on the argument that the ban on machineguns rendered the registration requirements and criminal penalties of the NFA unconstitutional. Ardoin, 19 F.3d at 179. Therefore, Ardoin necessarily decided the constitutional issue as a prerequisite to rejecting the theory of implicit repeal. Id. . The authority of Congress to tax illegal activity is firmly established. See, e.g., Department of Revenue v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994); Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). . See also United States v. Thomas, 15 F.3d 381, 382-83 (5th Cir. 1994) (affirming the denial of a motion for acquittal under § 5861(d) because defendant failed to demonstrate that pipe bombs cannot be registered). . Gresham offers no authority to support the proposition that registration of a pipe bomb is legally impossible, but he contends that registration of a pipe bomb is impossible as a practical matter. However true that may be, it does not undermine the constitutional basis of the statute. To" }, { "docid": "10933191", "title": "", "text": "a citizen could legally possess a machine gun, as long as he/she complied with the relevant registration and tax provisions of the NFA. See Ardoin, 19 F.3d at 183 (Wiener, J., dissenting) (“Simply put, since 1934 the NFA has said to such a citizen, “You may manufacture, transfer, or possess a machine gun if— but only if — you register and pay taxes on it.’ ”). Then, in 1986, Congress enacted section 922(o), which forbids the possession of any machine gun made after 1986. Congress did not indicate what effect section 922(o) would have on the NFA. “But undeniably the enactment of section 922(o) did effect the NFA — enormously.” Id. The NFA forbids the BATF to register and accept taxes for illegal firearms. Consequently, Congress’ enactment of section 922(o), which made the mere possession of machine guns by private citizens illegal, rendered the extensive taxation and registration provisions of the NFA meaningless. As Judge Wiener eloquently stated, “Their vestigial existence on the statute books analogizes perfectly to the human appendix: no useful function whatsoever, but unlimited potential for insidious mischief.” Id. at 184. Finally, the obsolescence of the NFA provisions is revealed if one looks to their original purpose. The Supreme Court upheld the validity of the NFA because it “was a revenue measure only and did not purport to exercise any general criminal power not delegated to Congress by the Constitution.” United States v. Rock Island Armory, 773 F.Supp. 117, 121 (C.D.Ill.1991) (citing Sonzinsky v. United States, 300 U.S. 506, 513, 57 S.Ct. 554, 555-56, 81 L.Ed. 772 (1936)). After the enactment of Section 922(o), however, those provisions no longer produce any revenue from the possession of machine guns by private citizens. “The suggestion that a tax measure can somehow have continued vitality when it no longer taxes certainly tests one’s imagination.” Ardoin, 19 F.3d at 184 (Wiener, J., dissenting). While implied repeals are disfavored, in this instance the Court is left with no other logical choice. Section 5861(d) and section 922(o) are utterly irreconcilable. Section 922(o) has superseded and supplanted section 5861(d) with respect to machine guns" }, { "docid": "12398980", "title": "", "text": "§ 5861(d) have been held unconstitutional, under circumstances similar to the instant ease. See, e.g., United States v. Dalton, 960 F.2d 121 (10th Cir.1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.I11.1991). These two courts held that a conviction for possession of an unregistered maehinegun, in violation of § 5861(d), would violate due process because the enactment of another statute, 18 U.S.C. § 922(o), made registration of the firearms impossible. Likewise, they held that a statute enacted under the taxing power, to facilitate the enforcement and collection of the tax, loses its constitutional foundation when the object of the tax is prohibited. See Dalton, 960 F.2d at 125; Rock Island Armory, 773 F.Supp. at 125. Accordingly, the two courts concluded, it would violate due process to convict a defendant for violations of a statute when compliance with it is legally impossible. This court rejected the same claim in United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994), holding that the enactment of § 922(o) did not absolve maehinegun owners of their obligation to register such weapons and pay the tax as required by the NFA, nor did it immunize them from criminal prosecution if they failed to comply with the statute. Id. at 180. Furthermore, we held that prosecutions under § 5861(d) are constitutional, despite the fact that it is legally impossible to register machineguns in the wake of § 922(o). Id. Hence, we held that such prosecutions do not offend due process. The Ardoin court based its conclusions on two fundamental premises that apply with equal force in the instant ease. First, the court noted that Congress may tax illegal activity. Consequently, although § 922(o) prohibits the transfer and possession of machineguns not legally possessed prior to 1986, Congress may still tax the illegal possession of such machineguns and may still assess criminal penalties for failure to comply with the registration requirements promulgated to enforce the tax. Id. Insofar as the basis for the authority to regulate compliance with the registration requirements—the taxing authority—still exists, the Ardoin court held that the registration requirements are constitutional" }, { "docid": "10933188", "title": "", "text": "Mr. Gambill guilty of possessing an unregistered machine gun in violation of the National Firearms Act (“NFA”), 26 U.S.C. § 5861(d) (enacted 1968). In 1986, Congress enacted a separate criminal statute prohibiting the possession of any machine gun made after 1986. 18 U.S.C. § 922(o). The Government’s witnesses admitted that the Government would not permit the registration of machine guns covered by section 922(o). Mr. Gambill contends that due process bars his conviction under a statute that punishes his failure to register a weapon when such registration is precluded by law. He also maintains that sections 5861(d) and 922(o) are irreconcilable. We agree and reverse his conviction under Count VI. Section 5861(d) states that it is unlawful for any person to “receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d) (emphasis added). Section 922(o) states in pertinent part that “it shall be unlawful for any person to transfer or possess a machinegun.” 18 U.S.C. § 922(o). The Bureau of Alcohol, Tobacco and Firearms’ (“BATF”) agents admitted at trial that all applications will be denied if it is illegal to possess or transfer the weapon. See also 26 U.S.C. § 5812(a) (applications will be denied if possession of the firearm would place person in violation of law). Mr. Gambill concedes that the Government could have charged him with illegal possession of a machine gun under section 922(o), but the Government chose not to do so. Instead, the Government chose to prose cute Mr. Gambill under section 5861(d) with possession of an unregistered machine gun. A. Split in the Circuits This case presents an issue that the United States Court of Appeals for the Sixth Circuit is yet to decide: whether section 922(o) implicitly repealed portions of the NFA. A split of opinion exists in the circuits that have addressed this question. See United States v. Dalton, 960 F.2d 121 (10th Cir.1992) (unconstitutional to prosecute under section 5861(d)); United States v. Kurt, 988 F.2d 73 (9th Cir.1993) (favoring analysis in Dalton); but see United States v. Ardoin, 19" } ]

[ { "docid": "277999", "title": "", "text": "to further show that listings of stores, and particularly supermarkets, bearing the name “GIANT”, either alone or in conjunction with some other word or words, may be found in the telephone directories of such other cities as Wichita, Kansas, St. Louis, Missouri, Mt. Pleasant, Michigan, and Boston, Massachusetts. The TTAB, speaking primarily of the issue in the opposition, concluded that GIANT and GIANT FOOD possess a strong trademark or service-mark significance in appellant’s area of doing business, indicating appellant’s goods and services, and, notwithstanding extensive use of GIANT by others located elsewhere, that there would be likelihood of confusion from the use of appellee’s mark including the words GIANT FOODS OF AMERICA in that area. Citing the prima facie evidentiary effect which an unrestricted registration to ap pellee would have under § 7(b) of the statute (15 U.S.C. § 1057(b)), the TTAB therefore sustained the opposition and held that appellee was not entitled to register its product trademark involved therein, at least on its then pending unrestricted application. The TTAB opinion then proceeded to a consideration of the interference involving the two service marks of the parties. Its legal analysis of why neither mark should be registered is as follows (footnote omitted; matter in brackets added): Turning to the interference proceeding, inasmuch as defendant’s [appellee’s] mark * * * bears the words “GIANT FOODS OF AMERICA”, what has been said in regard to defendant’s mark involved in the opposition likewise pertains thereto, and in view of plaintiff’s [appellant’s] established prior rights, as between the parties, in “GIANT” and “GIANT FOOD”, defendant is not entitled to a registration of this mark. In view of this holding, it appears that this interference need proceed no further and that judgment should forthwith be rendered in favor of plaintiff. However, Section 17 of the statute [15 USC 1067] provides that: “In every case of interference, opposition to registration, application to register as a lawful concurrent user, or application to cancel the registration of a mark, the Commissioner shall give notice to all parties and shall direct a Trademark Trial and Appeal Board to determine" } ]

[ { "docid": "16791952", "title": "", "text": "determination of no likelihood of confusion should be conclusive of the very same issue raised in the stayed application proceeding under the doctrine of stare decisis. [Citations omitted.] Consequently, while not conceding the point that there is no likelihood of confusion between its and Bongrain’s marks, Delice submits this brief to point out that resolution of the issues raised by Bongrain’s motion for summary judgment will further Deliee's efforts to obtain registration of its mark. [Emphasis ours except for stare decisis.] This can scarcely be characterized as an opposition to Bongrain’s motion for summary judgment in its favor — thus preserving its registrations — on the ground “that no likelihood of confusion exists.” Bongrain filed a 2-paragraph reply reiterating that it asked for a holding of no likelihood of confusion. The TTAB Decision Thus informed and briefed, the board, in a 16-page March 19, 1986, opinion, essentially synthesized its own case for likelihood of confusion — Delice having made no argument to that effect and Bongrain having argued entirely to the contrary in support of its motion — and decided what neither party had asked it to decide, viz., that “a likelihood of confusion exists because the marks are similar, the goods are closely related, and none of the other factors argued by respondent [Bongrain] negates likelihood of confusion.” It then proceded to justify this essentially a priori opinion with point-by-point argument and citation of some 15 cases, mostly TTAB opinions involving different fact situations. Notably, it never mentioned the DuPont decision of the CCPA on which Bongrain principally relied and based its whole argument, nor did it say a single word about how it disposed of Bongrain’s motion for summary judgment, which was the sole procedural means by which the case had been brought before it. Its conclusion reads: In view of the above, the Board finds that there remains no genuine issue of material fact for trial, and that petitioner [Delice] is entitled to summary judgment as a matter of law on the question of likelihood of confusion. Accordingly, the petition to cancel respondent’s marks is granted. The" }, { "docid": "16791953", "title": "", "text": "its motion — and decided what neither party had asked it to decide, viz., that “a likelihood of confusion exists because the marks are similar, the goods are closely related, and none of the other factors argued by respondent [Bongrain] negates likelihood of confusion.” It then proceded to justify this essentially a priori opinion with point-by-point argument and citation of some 15 cases, mostly TTAB opinions involving different fact situations. Notably, it never mentioned the DuPont decision of the CCPA on which Bongrain principally relied and based its whole argument, nor did it say a single word about how it disposed of Bongrain’s motion for summary judgment, which was the sole procedural means by which the case had been brought before it. Its conclusion reads: In view of the above, the Board finds that there remains no genuine issue of material fact for trial, and that petitioner [Delice] is entitled to summary judgment as a matter of law on the question of likelihood of confusion. Accordingly, the petition to cancel respondent’s marks is granted. The registration will be can-celled in due course. OPINION Perhaps the board was motivated by the fact that Delice, as between the parties hereto, was the prior user and was being denied registration, to which it was clearly entitled, on the basis of a junior user’s registrations. But that is insufficient to support the board’s decision. The gravamen of this case is that as prior user Delice is entitled to a registration of its mark which the PTO has denied it. As Delice was at some pains to point out to the board after the parties, over a long period, had labored to work out a mutually satisfactory settlement which would give both of them the advantages of registration, there was more than one route to a solution. In filing its motion for summary judgment and in stipulating the facts supporting that motion, both parties, in effect, were asking for the solution which was mutually agreeable to them, which destroyed nobody’s rights, and which, under the law, seemed to them to be entirely proper. That solution" }, { "docid": "6975709", "title": "", "text": "factors set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (C.C.P.A.1973), to find no likelihood of confusion; (2) ignored substantial evidence showing that CSI’s COACH mark was famous for dilution purposes, including corporate annual reports that CSI had attempted to introduce via a notice of reliance; and (3) found that Triumph’s descriptive COACH marks have acquired distinctiveness. In response, Triumph argues that the Board correctly found: (1) no likelihood of confusion “in light of the vast differences in the parties’ respective goods, the channels of trade through which those goods are sold, and the vastly different commercial impressions made by the marks on consumers”; (2) no likelihood of dilution because CSI did not meet the stringent standards for fame under the TDRA and because “its mark has not become the principal meaning of the word ‘coach’”; and (3) that Triumph’s marks have attained secondary meaning. Appellee’s Br. 12-13. For the reasons set forth below, we find Triumph’s arguments regarding likelihood of confusion and likelihood of dilution well-taken. Because we find that the Board made evidentiary errors with respect to its acquired distinctiveness analysis, we vacate that portion of the Board’s decision and remand for further proceedings on that issue alone. A. Evidentiary Ruling Regarding CSI’s Notice of Reliance On appeal, CSI takes issue with the Board’s decision to exclude the corporate annual reports it attempted to admit through a notice of reliance. According to CSI, the Board should have considered its 2000-2008 annual reports as evidence of CSI’s annual sales figures and the amount it expended in advertising, design, and promotion of its COACH products. In response, Triumph argues that the Board properly struck the documents from the record because they were not submitted in accordance with the Board’s rules and were not otherwise authenticated. We agree with Triumph. This court reviews evidentiary rulings for abuse of discretion. Crash Dummy Movie, LLC v. Mattel, Inc., 601 F.3d 1387, 1390 (Fed.Cir.2010) (citing Chen v. Bouchard, 347 F.3d 1299, 1307 (Fed.Cir. 2003)). We will reverse only if the Board’s evidentiary ruling was: (1) “clearly unreasonable, arbitrary, or" }, { "docid": "16791959", "title": "", "text": "case of likelihood of confusion when not asked to do so. The only motion before the board, substantially unopposed, was supported by facts showing exactly the opposite. Analyzing this case from both a factual and legal viewpoint, it is not necessary, in view of cumulative differences between the marks and the goods enumerated, to hold that confusion is likely. It seems more than probable that that is the reason why Bongrain’s registrations were issued. As the prior user, Delice would be the one to object to the use and registration of Bongrain’s mark. It has never objected to the use and, notwithstanding this cancellation proceeding, it has not seriously objected to its registration. Considering the agreement and stipulated facts, it is clear that the only reason for asking cancellation is because the PTO refused a registration to it. It is still party to an agreement which it insists will become enforceable again as soon as it gets a registration. The cancellation can therefore be regarded as pro forma, or as a mere procedural device to correct the PTO’s error in not registering the Delice trademark. That done, clearly it has no objection to Bongrain having registrations of its mark on milk products and cheese. There is no evidence in this case, other than the marks themselves, to support a conclusion of likelihood of confusion and substantial evidence to the contrary. The statute refers to likelihood, not the mere possibility, of confusion. We have given careful consideration to appellee’s brief before us but find it wholly unpersuasive as we did the presentation of its counsel at oral argument. The brief represents a complete change of position from that taken before the board’s decision. Likelihood of confusion cannot be established, as the board did, merely by citing other cases based on different fact situations. It is an ultimate conclusion which must be reached on all the circumstances of the case at bar. The decision of the Trademark Trial and Appeal Board is reversed and the case is remanded with instructions to grant Bongrain’s motion for summary judgment in its favor consistently with" }, { "docid": "15616067", "title": "", "text": "who did not prove “damage” could not be heard on what it termed “ex parte” issues affecting the validity of an application or registration. In a number of cases, this court criticized the practice of the board in not deciding all issues within the inter partes proceeding. Nevertheless, the practice of the board continued until its decision in Norac Co. v. Occidental Petroleum Corp., 197 USPQ 306 (TTAB 1977). In Norac, a petitioner sought to cancel a number of registrations on the ground of prior rights in a mark with which the registrant’s marks were alleged to be in conflict. In addition, some of the registrations were also challenged on the ground of abandonment because of nonuse of the marks. The board ruled that there was no likelihood of confusion between the respective uses. Under prior practice, the petition would have been dismissed without reaching the issue of abandonment. However, the board rejected its previous practice and ordered cancellation of the registrations covering abandoned marks. In so doing, the board stated: This past practice of the Board permitted invalid registrations to remain on the Register only because petitioner failed to prove its standing, as distinct from alleging such standing. The modern theory of standing, as we review the legal decisions, is that it is determined from a reading of the allegations made in good faith in the pleading. The purpose of requiring allegations that demonstrate standing is to preclude meddlesome parties from instituting proceedings as self-appointed guardians of the purity of the Register. However, a party who demonstrates a real interest in the proceeding has standing to litigate even though ultimately its allegation that he is or will be damaged is refuted. See: Federated Foods, Inc. v. Fort Howard Paper Company, 192 USPQ 24 (CCPA, 1976); and Yoder Brothers, Inc. v. California-Florida Plant Corporation, 193 USPQ 264 (CA 5, 1976). Although fully recognizing the change from our past practice, we nevertheless, conclude that the question of standing is to be determined upon the well-pleaded allegations of the complaint, made in good faith, and is not contingent upon re-examination based on" }, { "docid": "11530086", "title": "", "text": "(Fed.Cir.1984), the court held that Colony Foods had not established a pattern of use sufficient to support public recognition of a family of restaurant marks incorporating the word “hobo”, although Colony Foods had more than one such mark. Id. at 1339, 222 USPQ at 186-87. While the court pointed out that Colony Foods did not have trademark rights in “hobo” per se, the court did not hold that Colony Foods could not have a family of “hobo” marks unless it did. J & J refers to the large number of “Me” marks not registered to McDonald’s, and argues that the existence of these marks is inconsistent with McDonald’s claim to a family of marks. Third party registrations of various “Me” names does not defeat McDonald’s specific family of marks wherein the prefix “Me” is used with generic food names to create fanciful words. See Motorola, 317 F.2d at 400, 137 USPQ at 553 (“As a matter of logic it would seem to us that if opposer has a family of six marks all starting with the [same] word ..., it still has that family notwithstanding there may be some others using the same word”). Responding to J & J’s argument that there would not be customer confusion because it sells its pretzels frozen and in bulk at the wholesale level, the Board found that the pretzels would reach the consuming public in a fast-food, ready-to-eat manner, and that J & J's registration applications as well as its marketing plans were not limited to sales only at wholesale and only in schools. Determination of reg-istrability is made on the basis of the description of the goods in the application. Octocom Systems, Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 942, 16 USPQ2d 1783, 1787 (Fed.Cir.1990). The protective provisions of the Lanham Act benefit not only the business community but the consuming public, and it is from the perspective of the consumer that likelihood of confusion is determined. See Massey Junior College, Inc. v. Fashion Institute of Technology, 492 F.2d 1399, 1403, 181 USPQ 272, 274 (CCPA 1974). While evidence of" }, { "docid": "16791950", "title": "", "text": "The next procedural event was the filing on July 2, 1984, of Delice’s petition for cancellation, in spite of which the parties continued to cooperate on the basis of their belief that there was no likelihood of confu- sion from their respective practices, abiding by the agreement except for Delice’s petition to cancel. Bongrain next filed, on August 23, 1985, a motion for summary judgment requesting dismissal of the petition to cancel on the sole ground “that no likelihood of confusion exists between its trademark ... and petitioner’s mark” (emphasis ours), accompanied by the aforesaid stipulation of facts and a supporting memorandum in which it principally relied on our predecessor court’s opinion in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). That case involved an application to register “RALLY” for certain goods and a cited registration of the identical mark for different goods and an agreement between applicant and registrant to avoid likelihood of confusion. The court reversed the PTO’s refusal to register and the opinion discusses some thirteen factors to be considered in determining likelihood of confusion under such circumstances. Bongrain compared all of them to its situation and submitted that the DuPont case strongly supported a finding of no likelihood of confusion. It thus laid before the board an extensive argument plus the stipulation of facts and the parties’ agreement. Delice, in reply to all of the foregoing, filed a 2-page memorandum. Over half was devoted to a recitation of undisputed facts. No disagreement was expressed with any of Bongrain’s arguments. No objection was made to the granting of Bongrain’s motion. No cross-motion was filed. What was actually said is significant: ... Delice brought the instant cancellation proceeding in order to deal with the objections in the trial examiner’s decision [rejecting Delice’s application]. Those objections would be overcome either if registrant’s marks [sic, registrations] were cancelled or, in the alternative, if Delice’s cancellation petition were denied on the ground that there is, in fact, no likelihood of confusion between Delice’s and Bongrain’s marks. In the latter case, this Board’s" }, { "docid": "16790036", "title": "", "text": "made with respect to the use of the mark specified in the registration and application. Neither involved a registration and application that were for the identical use, as in the present case. Each case involved the use of the same (du Pont) or similar (Giant Food) marks for different products, and the question was whether that use was likely to cause confusion as to the source of the product. In answering that question, the court necessarily had to consider the impact of the marks upon the customers in the different markets in which the marks were used. Indeed, in each case the court apparently based its analysis upon confusion in the markets specified in the registration and application, where the marks were used. In the present case, however, Canadian Bank sought registration of its mark for the identical service that Crocker’s registered mark covered. The Board thus properly considered whether, in the entire market for that service (banking services), there was likelihood of confusion between the marks. That is precisely the approach that CBS requires, and nothing in du Pont or Giant Food is inconsistent with it. Canadian Bank relies on the statement in Giant Food that likelihood of confusion must be determined “in the context of the marketplace, because that is where confusion of prospective purchasers would or would not occur,” and that “[a]ll evidence of record bearing on the likelihood of confusion must be considered to determine the circumstances surrounding the use of the mark.” The statements in an opinion, however, must be read in light of the issue before the court, and broad language cannot be applied uncritically to wholly different factual situations. Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944). Here the relevant “marketplace” is “banking services,” and those were the services for which Canadian Bank sought to register its mark. In determining likelihood of confusion, the Board properly limited its inquiry to the likelihood of confusion in that broad category of services. Ill Canadian Bank also challenges the Board’s finding that in the market for banking" }, { "docid": "22914738", "title": "", "text": "NIES, Circuit Judge. This appeal is from the grant of summary judgment by the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office dismissing Opposition No. 67,-633 to registration of the mark FERMODYL PURE GOLD (GOLD disclaimed) for hair treatment preparations, as shown in Application Serial No. 296,488, of Syntex (U.S.A.), Inc., based on likelihood of confusion with the mark PURE GOLD for fresh citrus fruits and juices, a mark long used and registered by Pure Gold, Inc., (PGI). We affirm. Background The decision of the Board setting forth more particularly the details of the notice of opposition and of the ensuing proceedings is reported at 221 USPQ 151 (TTAB 1983). Only the board’s rulings on PGI’s claims under 15 U.S.C. § 1052(a) and § 1052(d) (§§ 2(a) and 2(d) of Lanham Act) are challenged in the appeal. In response to PGI’s notice of opposition, Syntex filed a motion for summary judgment asserting that there was no genuine-issue of any material fact relating to PGI’s claim of likelihood of confusion under 15 U.S.C. § 1052(d) , that it was entitled to judgment as a matter of law because the mark FERMODYL PURE GOLD is sufficiently different from PGI’s PURE GOLD mark to avoid likelihood of confusion, and that, even if the marks were identical, there would be no likelihood of confusion in view of the vast differences in the respective goods. In support of the motion, Syntex presented copies of eleven third party registrations consisting of the word mark PURE GOLD for various food products and other goods.’ In reply, PGI proffered no affidavits to support its complaint, merely asserting that the pleadings and the motion itself raised genuine issues of material fact, and that it was entitled to discovery in order to develop relevant evidence. In granting the motion, the board stated .that Syntex was entitled to judgment as a matter of law for the reason: Specifically, it is clear that the goods to which the parties apply their marks are so different in nature that confusion is unlikely to result from the contemporaneous use of" }, { "docid": "7799978", "title": "", "text": "that is, outside of a cancellation proceeding. II. This appeal raises a question with respect to the significance, in determining likelihood of confusion, that may be attributed to highly descriptive or generic terms which appear in composite marks. National argues that the board relied solely on such a term, i.e., CASH MANAGEMENT, in finding likelihood of confusion between the subject marks and, thus, erred as a matter of law. National points to a number of opinions of the United States Court of Customs and Patent Appeals in which marks were held not to be conflicting because the similarity between them rested solely in a descriptive or generic term which formed part of each mark. National further faults the board for presuming that the expression CASH MANAGEMENT in the cited registration “possesses trademark significance” and for precluding National from challenging the registrant’s rights in these words. While we do not agree with the board’s analysis in all respects, we must nevertheless affirm the board’s decision. National has failed to persuade us that the board erred not only in its approach to the ultimate issue, but also in the result. III. The basic principle in determining confusion between marks is that marks must be compared in their entireties and must be considered in connection with the particular goods or services for which they are used. Glenwood Laboratories v. American Home Products Corp., 455 F.2d 1384, 1385, 173 USPQ 19, 20 (CCPA 1972); 2 J. McCarthy, Trademarks and Unfair Competition § 23:15A (2nd ed. 1984). It follows from that principle that likelihood of confusion cannot be predicated on dissection of a mark, that is, on only part of a mark. On the other hand, in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable. That a particular feature is descriptive or generic with respect to" }, { "docid": "283345", "title": "", "text": "which is more likely to be impressed on the consumer’s memory.” Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570, 218 USPQ 390, 395 (Fed.Cir.1983). .Notwithstanding .arguments to the contrary, see infra, we also agree with the board that Dixie’s services and the registrant’s are identical. DuPont, 476 F.2d at 1361, 177 USPQ at 567 (factor two). Because the dominant portion of THE DELTA CAFE and design is identical to the DELTA mark, and because the two marks are for identical services, the two marks are likely to cause confusion. Dixie’s principal challenge focuses on the second DuPont factor: ,“[t]he similarity or dissimilarity and nature of the ... services as described in an application or registration or in connection with which a prior mark is in use.” Id. The gravamen of its argument is that the two marks are actually used for different services because the registrant has not used the DELTA mark for restaurant services. Thus, there is no likelihood of confusion between the two marks. Dixie argues that the board erred in giving conclusive weight to the identification of services in the registrant’s trademark, which includes “restaurant services.” It- claims that the registrant’s identification is merely prima facie evidence of its use of the mark for such services, which Dixie overcame with evidence to the contrary. Specifically, it provided declarations to the effect that it could find no evidence that the registrant actually used that mark in connection with restaurant services. The PTO answers that Dixie is merely attempting to circumvent the statutory requirement that arguments that a mark has been abandoned be brought in. a cancellation proceeding. \"VVe agree with the PTO. “ ‘Likelihood of confusion must be determined based on an analysis of the mark as applied to the ... services recited in applicant’s application vis-a-vis the ... services recited in [a] ... registration, rather than what the evidence shows the ... services to be.’ Canadian Imperial Bank v. Wells Fargo Bank, N.A., 811 F.2d 1490, 1493, 1 USPQ2d 1813, 1815 (Fed.Cir.1987) (quoting approvingly the board’s formulation of the test). Indeed, the second DuPont" }, { "docid": "21953691", "title": "", "text": "Sharp’s opposition to the word-and-design mark. Sharp Kabushiki Kaisha v. ThinkSharp, Inc., Opposition No. 91123480 (TTAB Oct. 11, 2002) (default judgment). However, ThinkSharp contested Sharp’s opposition to registration of the word mark THINKSHARP. After the TTAB proceedings were completed but before the Board’s decision, Sharp asserted that the default judgment in its favor on the word-and-design mark operated as res judicata to preclude ThinkSharp from contesting Sharp’s opposition to registration of the word mark. The Board rejected Sharp’s opposition, on two grounds. First, the Board held that Sharp had waived its right to assert res judicata, stating that Sharp had not put ThinkSharp on notice and had not raised the issue until after the TTAB evi-dentiary proceedings were completed. On the merits, the Board held that confusion was not likely between the word marks SHARP and THINKSHARP. Sharp asked the Board to reconsider. On the res judi-cata issue, Sharp pointed out that it had properly raised and given notice of the issue, and produced a copy of a letter to the Board with copy to ThinkSharp, which stated that Sharp intended to rely on the default judgment for res judicata effect. The Board then granted reconsideration, explaining that Sharp’s notice letter had been misplaced at the Board. On reconsideration, the Board observed that the ThinkSharp applications were co-pending; the Board held that the applicant was entitled to choose to pursue one registration and abandon the other, even after oppositions had been filed. The Board explained that an applicant is not required to defend against multiple oppositions in order to preserve its right to defend against one of them. Thus the Board held that the default judgment on the word- and-design mark did not preclude defending the application to register the word mark. The Board also confirmed its decision that there was not a likelihood of confusion between SHARP and THINK-SHARP. Sharp appeals only the decision of the issue of res judicata. DISCUSSION Whether a particular claim is barred by res judicata is a matter of law, and its decision by an administrative agency receives plenary review. See 5 U.S.C. ’706(2)(A)" }, { "docid": "6451577", "title": "", "text": "U.S.P.Q. 341 (TTAB 1978) Dissatisfied with this result, WF sued SP in district court. Count I of its complaint sought a declaratory judgment that SP’s service mark registration of “STAGECOACH INN” for restaurant and motel services was invalid, Count II requested review of the Board’s rulings on SP’s opposition, and Count III sought, in the alternative, declaratory judgment that WF was entitled to concurrent registration of its marks. The district court reviewed the Board’s findings and specifically found that they had not been overcome at trial. Thus, in response to Count II and in its capacity to review the Board’s decision, the district court affirmed. It remanded to the Board Counts I and III (invalidity of SP’s registration and concurrent registration). DISCUSSION Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d), provides that a trademark will be refused registration if, when connected to the applicant’s goods or services, it is likely to cause confusion with goods or services bearing (1) a mark already registered in the Patent and Trademark Office, or (2) a mark that previously has been used somewhere in the United States. In an opposition proceeding, the opposer therefore contends that the applicant’s mark so resembles his own registered mark or his prior common law mark that it will likely cause confusion. If, as an initial matter, the opposer fails to prove likelihood of confusion, and no other bar to registration appears, the Board’s inquiry ends and registration may be granted. Once likelihood of confusion is established, the opposer still must prove his superior right to the mark, either by presenting proof of prior registration or of prior use in the United States. See generally 1 J. McCarthy, Trademarks and Unfair Competition §§ 20:4-20:8. In the present proceeding, the Board and the district court held on alternative grounds that registration should be denied. These grounds were: (1) WF’s marks are confusingly similar to SP’s previously used, unregistered marks, and (2) they are confusingly similar to SP’s registered “STAGECOACH INN” service mark. WF on appeal has argued against both holdings. Because we affirm on the first ground, which" }, { "docid": "7141167", "title": "", "text": "JACK R. MILLER, Circuit Judge. This is an appeal from the decision of the Trademark Trial and Appeal Board (“board”) of the Patent and Trademark Office dismissing appellant’s opposition to application serial No. 145,054 for registration of the mark “THINKER TOYS and Design,” shown below, for “[apparatus for electronic computers and data processing systems.” We reverse. Thinker Toys BACKGROUND Applicant-appellee’s business is currently limited to the design, manufacture, and sale of peripheral products for microcomputers and small computers and/or data processing systems. Applicant’s products are sold through two main channels of trade: approximately 85% of his products are sold wholesale to microcomputer stores and systems houses; the remaining 15% are mail order sales, of which approximately one-third are made to individual consumers. Applicant’s goods bearing the mark “THINKER TOYS” currently include “electronic components and circuit boards,” but do not include “electronic terminals, keyboards, screens, printers, computers or programs or software for games or toys.” Registration has been opposed by appellant on the ground of likelihood of confusion between applicant’s mark, as applied to the goods described in its application, and oppo-ser’s mark based on opposer’s prior use and registration (in 1914) of the mark “TINKERTOY” on the principal register for “games, toys, and children’s building-blocks,” renewed for the third time for twenty years from April 7, 1974. The board found that the goods of the applicant are not so closely related to the goods of opposer that the purchasing public would identify them with a single source; also, that the channels of trade in which the respective goods move are different. The board further found that the commercial impression of applicant’s mark differed significantly from that of the “TINKERTOY” mark, relying primarily on the presence of the light bulb in applicant’s mark. Accordingly, the board, with one member dissenting, held that there was no likelihood of confusion from concurrent use of the respective marks. ANALYSIS Where likelihood of confusion is asserted by an opposer with respect to a trademark for which an application for registration has been filed, the issue must be resolved on the basis of not only a" }, { "docid": "12062929", "title": "", "text": "issued in August 1985 for use on luggage, clothing and accessories. After recording U.S. sales near 4 million dollars in 1985, Person’s Co. granted California distributor Zip Zone International a license to manufacture and sell goods under the “PERSON’S” mark in the United States. In early 1986, appellant’s advertising in the U.S. became known to Christman and both parties became aware of confusion in the marketplace. Person’s Co. initiated an action to cancel Christman’s registration on the following grounds: (1) likelihood of confusion; (2) abandonment; and (3) unfair competition within the meaning of the Paris Convention. Christman counterclaimed and asserted prior use and likelihood of confusion as grounds for cancellation of the Person’s Co. registration. After some discovery, Christman filed a motion with the Board for summary judgment on all counts. In a well reasoned decision, the Board held for Christman on the grounds that Person’s use of the mark in Japan could not be used to establish priority against a “good faith” senior user in U.S. commerce. The Board found no evidence to suggest that the “PERSON’S” mark had acquired any notoriety in this country at the time of its adoption by Christman. Therefore, appellant had no reputation or goodwill upon which Christ-man could have intended to trade, rendering the unfair competition provisions of the Paris Convention inapplicable. The Board also found that Christman had not abandoned the mark, although sales of articles bearing the mark were often intermittent. The Board granted summary judgment to Christman and ordered appellant’s registration cancelled. The Board held in its opinion on reconsideration that Christman had not adopted the mark in bad faith despite his appropriation of a mark in use by appellant in a foreign country. The Board adopted the view that copying a mark in use in a foreign country is not in bad faith unless the foreign mark is famous in the United States or the copying is undertaken for the purpose of interfering with the prior user’s planned expansion into the United States. Person’s Co. appeals and requests that this court direct the Board to enter summary judgment in" }, { "docid": "15616066", "title": "", "text": "any person who believes he is or will be damaged by the registration of a mark on the principal register established by this Act. . . . * * * (c) at any time if the registered mark . . . has been abandoned, .... It had, for many years, been the view of the board that the determinative issue under section 14 was whether the petitioner would be “damaged” by the registration. While the petitioner was not required to prove actual damage, it was incumbent upon the petitioner to prove that the registered mark was likely to cause confusion with a mark in which petitioner had superi- or rights or that the registered mark was a descriptive term which petitioner was entitled to use. If the petitioner was unable to establish such “damage,” the petition for cancellation would be dismissed even in instances where there was uncontroverted evidence of abandonment of the mark or other grounds showing that the subject registration should be cancelled. Moreover, the board repeatedly held that a petitioner or opposer who did not prove “damage” could not be heard on what it termed “ex parte” issues affecting the validity of an application or registration. In a number of cases, this court criticized the practice of the board in not deciding all issues within the inter partes proceeding. Nevertheless, the practice of the board continued until its decision in Norac Co. v. Occidental Petroleum Corp., 197 USPQ 306 (TTAB 1977). In Norac, a petitioner sought to cancel a number of registrations on the ground of prior rights in a mark with which the registrant’s marks were alleged to be in conflict. In addition, some of the registrations were also challenged on the ground of abandonment because of nonuse of the marks. The board ruled that there was no likelihood of confusion between the respective uses. Under prior practice, the petition would have been dismissed without reaching the issue of abandonment. However, the board rejected its previous practice and ordered cancellation of the registrations covering abandoned marks. In so doing, the board stated: This past practice of" }, { "docid": "11811726", "title": "", "text": "2(a). I Likelihood of Confusion, Lanham Act § 2(d) Likelihood of confusion is a ground for opposition to trademark or service mark registration, and for cancellation of registration if raised within five years after registration. See Lanham Act § 13 (opposition) and § 14 (cancellation); 15 U.S.C. §§ 1063 and 1064. On appeal of decisions of the Trademark Trial and Appeal Board, the Board’s determination of whether confusion is likely is reviewed by the Federal Circuit as a question of law based on findings of underlying facts. Specialty Brands, Inc. v. Coffee Bean Distributors, Inc., 748 F.2d 669, 671, 223 USPQ 1281, 1282 (Fed.Cir.1984). The factual findings, in turn, are reviewed on the clearly erroneous standard. Id. The principal factual considerations pertinent to the issue of likelihood of confusion are collected in In re E.I. duPont de Nem-ours & Co, 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). Not all of the duPont factors are relevant or of similar weight in every case. The relevant facts with respect to the service marks here at issue include the similarities and differences among the various marks; the appearance, sound, connotation, and commercial impression of the marks; the nature of the services with which the marks are associated; the channels of trade in which the marks are used; the promotion, amount, and length of use of the several marks; and the nature and extent of any actual confusion. A The Board compared the CAROLINA OPRY marks with Opryland’s marks such as GRAND OLE OPRY or OZARK OPRY after excluding the word “opry”. The incorrectness of this analytical approach is apparent, for marks must be considered in the way they are perceived by the relevant public, in determining likelihood of confusion. Although it is often helpful to the decisionmaker to analyze marks by separating them into their component words or design elements in order to ascertain which aspects are more or less dominant, such analysis must not contravene law and reason. When it is the entirety of the marks that is perceived by the public, it is the entirety of the marks that must" }, { "docid": "16791949", "title": "", "text": "for cancellation of any registrations issued therefor, on the basis that Bongrain’s Marks so resemble Delice’s Mark as to be likely to cause confusion, or to cause mistake, or to deceive. That is a provision the stipulation contemplates will “be made binding ... when Del-ice obtains a registration” as a result of the board decision which was being sought. Presumably, as a result of the board decision cancelling the two Bongrain registrations, thus removing the references on the basis of which Delice’s application to register its mark was refused, Delice will now be able to obtain its registration. But this was not how the parties contemplated matters would turn out; from the outset, they both sought to obtain registrations. They entered into the agreement in March 1983, Bongrain got its registrations in July and August of the same year in spite of being the later user, and in April 1984 Delice, the prior user, was denied registration on the basis of those registrations even though the agreement was made of record in the Delice application. The next procedural event was the filing on July 2, 1984, of Delice’s petition for cancellation, in spite of which the parties continued to cooperate on the basis of their belief that there was no likelihood of confu- sion from their respective practices, abiding by the agreement except for Delice’s petition to cancel. Bongrain next filed, on August 23, 1985, a motion for summary judgment requesting dismissal of the petition to cancel on the sole ground “that no likelihood of confusion exists between its trademark ... and petitioner’s mark” (emphasis ours), accompanied by the aforesaid stipulation of facts and a supporting memorandum in which it principally relied on our predecessor court’s opinion in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). That case involved an application to register “RALLY” for certain goods and a cited registration of the identical mark for different goods and an agreement between applicant and registrant to avoid likelihood of confusion. The court reversed the PTO’s refusal to register and the opinion" }, { "docid": "3500005", "title": "", "text": "not restrict such goods to household use. The board, properly we think, approached the issue of likelihood of confusion on basis of use for both household and commercial purposes. J. C. Hall Co. v. Hallmark Cards, Inc., 52 CCPA 981, 340 F. 2d 960, 144 USPQ 435. Under such circumstances it is reasonable to presume that it is likely that the goods of the parties would be encompassed by the same channels of trade, under similar circumstances and conditions so as to create the impression in the minds of purchasers that they emanated from the same source. Appellant contended below, as it does here, that a pertinent factor dissuasive of likelihood of confusion is that in appellee’s advertising of its mark TORNADO the mark always appears with a representation of the whirling funnel of a tornado and that since approximately 1950 appellant’s VOKNADO has always been used in a distinctive and particular style. In response thereto the board held, and we agree, that the display of a mark in a particular style is of no material significance since the display may be changed at any time as may be dictated by the fancy of the applicant or the owner of the mark. In this connection it is to be further noted that appellee relies liere solely on its registrations which, disclose only the term TORNADO. We agree with the board that the issue here does not properly admit consideration of a design used by appellee in advertising in derogation of rights attaching by reason of appellee’s registrations. Mindful of the fact that appellee is the prior user; that the goods of the parties in the light of the record before us are of the same general class; and that they are substantially similar and could be dispensed through the same channels of trade to purchasers of electrical supplies, we turn to consideration of the competing marks VORNADO and TORNADO. The only significant difference which we perceive is that TORNADO is a dictionary word with a well-known meaning, while VORNADO is a coined and arbitrary term. With the exception of the" }, { "docid": "11530085", "title": "", "text": "feature to the recognition of the marks as of common origin. McDonald’s showed extensive usage and promotion of various marks using the “Me” formative, in association with the MCDONALD’S mark, in advertising and at McDonald’s restaurants. McDonald’s showed that in 1987 it operated 7,600 outlets in the United States with sales of over $14 billion; that it engaged in extensive nationwide advertising, spending $405 million in 1987; that its current menu is diverse; and that two of its restaurants have sold pretzels. J & J does not challenge the renown of the individual marks, but argues that a trademark owner must own trademark rights to the formative itself, in order to establish rights to a family based on that formative. J & J points out that the “Me” mark, standing alone, is registered by McCormick & Company for use with spices. However, it is not correct that the formative itself must be a trademark in order to sustain a family of marks. In Colony Foods, Inc. v. Sagemark, Ltd., 735 F.2d 1336, 222 USPQ 185 (Fed.Cir.1984), the court held that Colony Foods had not established a pattern of use sufficient to support public recognition of a family of restaurant marks incorporating the word “hobo”, although Colony Foods had more than one such mark. Id. at 1339, 222 USPQ at 186-87. While the court pointed out that Colony Foods did not have trademark rights in “hobo” per se, the court did not hold that Colony Foods could not have a family of “hobo” marks unless it did. J & J refers to the large number of “Me” marks not registered to McDonald’s, and argues that the existence of these marks is inconsistent with McDonald’s claim to a family of marks. Third party registrations of various “Me” names does not defeat McDonald’s specific family of marks wherein the prefix “Me” is used with generic food names to create fanciful words. See Motorola, 317 F.2d at 400, 137 USPQ at 553 (“As a matter of logic it would seem to us that if opposer has a family of six marks all starting with" } ]

[ { "docid": "7574064", "title": "", "text": "what the appropriate standard of review is. We exercise plenary review to determine whether jury instructions misstated the applicable law, but in the absence of a misstatement we review for abuse of discretion. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir.1997); Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir.1989). If the party claiming error did not make a timely objection, we review for plain error. See Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 136 (3d Cir.1997). Fed.R.Civ.P. 51 provides that a party may not assign as error defects in jury instructions unless the party distinctly stated its objection before the jury retired to consider its verdict. See Fed.R.Civ.P. 51; accord Smith v. Borough of Wilkinsburg, 147 F.3d 272, 277 (3d Cir.1998) (“[T]o preserve an issue for appeal, counsel must state distinctly the matter objected to and the grounds of the objection.”). We will reverse only if the trial court committed plain error that was “fundamental and highly prejudicial, such that the instructions failed to provide the jury with adequate guidance and our refusal to consider the issue would result in a miscarriage of justice.” Ryder, 128 F.3d at 136. Cooper did not object at the close of jury instructions. When the District Court asked Cooper’s counsel if he had any objections after the jury charge, he responded only by correcting one of the exhibit numbers. Moreover, Cooper had previously participated in a charge conference in which both parties met with the judge and agreed on mutually satisfactory language on all the instructions. It appears from the record that the District Court gave the instructions agreed upon by the parties at the charge conference. Nevertheless, Cooper claims its objections were properly preserved and should receive plenary review. Cooper relies upon two cases. In the first, Bowley v. Stotler & Co., 751 F.2d 641 (3d Cir.1985), we held the appellant’s objection was preserved because the trial court expressly told appellant that his previous written objections would constitute an automatic objection to every adverse ruling and that his objections would be preserved in the record. See id. at" } ]

[ { "docid": "23487207", "title": "", "text": "him from the case. The court further ruled that Dream Games could not recover actual damages for Fast Action Bingo’s lost profits because the game was offered illegally in Utah and Wyoming, but that Dream Games was entitled to recover statutory damages to be determined by the jury. The jury found PC Onsite and Hagon liable for willful copyright infringement. It awarded $25,000 to Dream Games in statutory damages. Final judgment was entered on March 30, 2007, in favor of Dream Games. Dream Games subsequently moved to amend the judgment for an error correction and to enter a permanent injunction. It also filed a motion for a new trial on Pierce’s liability for inducement. On May 2, 2007, the district court amended its judgment to correct the clerical error and to order a permanent injunction, and denied Dream Games’s motion for a partial new trial. PC Onsite timely appeals. Dream Games and Affordable Video Systems cross-appeal the district court’s denial of Dream Games’s motion for a partial new trial on Pierce’s liability. II. JURISDICTION AND STANDARD OF REVIEW The district court’s jurisdiction was based on 28 U.S.C. §§ 1331, 1338(a) and 1367(a). We have jurisdiction under 28 U.S.C. § 1291 from a final judgment that disposes of all claims with respect to all parties. We review a district court’s evidentiary ruling for abuse of discretion. See Tritch- ler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004). Appellant must also show “that the error was prejudicial.” Id. “We review a district court’s formulation of civil jury instructions for an abuse of discretion,” and “[w]e review de novo whether a jury instruction misstates the law.” Wall Data Inc. v. L.A. County Sheriff's Dep’t, 447 F.3d 769, 784 (9th Cir.2006). A denial and a grant of a motion for a judgment as a matter of law are both reviewed de novo. See Quiksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 755(9th Cir.2006). III. DISCUSSION A. Evidence of Unprotectable Elements Before the Jury Because “copyright protects only an author’s expression of an idea,” Data E. USA, Inc. v. Epyx, Inc., 862 F.2d" }, { "docid": "8463610", "title": "", "text": "have known that its actions were likely to infringe (and, also, that it had no objectively reasonable defenses). The district court separately denied Marvell’s affirmative defense that CMU’s delay in bringing suit should bar pre-suit damages under the equitable doctrine of laches, concluding that the equities ultimately favored CMU because of Marvell’s copying. Marvell appeals rulings on infringement, invalidity, and damages, as well as willfulness and laches. We have jurisdiction under 28 U.S.C. § 1295(a)(1). DISCUSSION We review rulings on issues not unique to patent law under the standards of the relevant regional circuit. Info-Hold, Inc. v. Muzak LLC, 783 F.3d 1365, 1371 (Fed.Cir.2015). Accordingly, here we review the denial of judgment as a matter of law de novo and must affirm if “there is sufficient evidence to support the verdict, drawing all reasonable inferences in favor of the verdict winner.” Blum v. Witco Chem. Corp., 829 F.2d 367, 372 (3d Cir.1987). We review for abuse of discretion the denial of a new-trial motion challenging the verdict as against the weight of the evidence. Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 383-84 (3d Cir.2002). We review jury instructions de novo, asking “whether the charge, taken as a whole and viewed in light of the evidence, fairly and adequately submits the issue in the case to the jury.” Abrams v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir.1995) (quotation marks and citation omitted). Other standards of review are noted as needed below. I The general contours of the parties’ dispute on liability — on invalidity and infringement — are familiar ones. CMU developed what it believed to be a new and improved way of doing something useful— here, detecting recorded data accurately. In the written-description portions of its patents, it presented, among other things, an optimal way to achieve its stated advance. Its claims, however, were not limited to the optimal embodiment. They claimed not only the optimal approach but also a broader class of processes that exploit the inventors’ key insight to solving the problems of the prior art — here, dealing with the difficulty of detecting densely packed data" }, { "docid": "23704009", "title": "", "text": "on the malicious prosecution count, notwithstanding its finding in an answer to a special interrogatory that “all of the significant facts that the [appellants] provided to the Philadelphia police [were] true.” As we have indicated, the appellants have appealed from the order of May 14, 1992, denying their post-trial motions. II. Standard of Review Normally, we review a district court’s ruling on a motion for a new trial for abuse of discretion, but here our review is plenary as the district court’s denial of the motion was based on the application of legal precepts. See Rotonda v. Keene Corp., 956 F.2d 436, 438 (3d Cir.1992); Waldorf v. Shuta, 896 F.2d 723, 737 (3d Cir.1990). Furthermore, while we ordinarily review a district court’s ruling on points for charge on an abuse of discretion standard, Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d Cir.1986), in this case we are exercising plenary review because the appellants contend that the charge taken as a whole does not state the correct legal standard. See Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir.1989). Thus, we will review the charge as a whole in the light of the evidence to determine if it fairly and adequately submitted the issues to the jury and we will reverse if the instructions were capable of confusing and thereby misleading the jury. See Limbach Co. v. Sheet Metal Workers Int'l Ass’n, 949 F.2d 1241, 1259 n. 15 (3d Cir.1991) (in banc). III. Discussion 1. Malicious Prosecution The appellants first maintain that the court erred in instructing the jury on the Pennsylvania law of malicious prosecution in both the charge and the special interrogatories. In particular the appellants contend that the court misstated the law in telling the jury that the appellants had a responsibility to conduct a reasonable investigation of the theft of the computers, to determine the significant facts, and to report all the facts to the police before focusing police attention on Griffiths. The appellants urge that they had no obligation to investigate inasmuch as they did not file the complaint or demand Griffiths’" }, { "docid": "2674482", "title": "", "text": "Armstrong several times during the year that he was out on disability to discuss possible job options with him. But when Armstrong did not return to work within a year capable of performing the distribution stock clerk duties (including the linen clerk functions), he was formally terminated. II. Procedural History Armstrong filed suit against the Defendants in July 2000 for uncompensated overtime under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and employment discrimination under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. § 10:5-1, et seq. In April 2002, he won a $50,000 verdict for emotional distress and loss of enjoyment of life based upon the LAD hostile work environment claim against the Hospital and Kraus. They filed a motion for a new trial. The Court granted the motion in August 2002 without restrictions or limitations on the scope of the new trial. At the second trial, Armstrong filed written objections to the proposed charge and jury interrogatories. After they were denied, the jury found in favor of the Defendants on all claims. Armstrong now appeals. III. Standard of Review Generally, we review jury instructions for abuse of discretion. United States v. McLaughlin, 386 F.3d 547, 551-52 (3d Cir.2004). However, our review is plenary when the issue is whether the instructions misstated the law. Id. at 552. We must consider “whether the charge, ‘taken as a whole, properly apprise[d] the jury of the issues and the applicable law.’ ” Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir.1998) (quoting Limbach Co. v. Sheet Metal Workers Int’l Ass’n, 949 F.2d 1241, 1259 n. 15 (3d Cir. 1991)). Harmless errors in parts of a jury-charge that do not prejudice the complaining party are not sufficient grounds on which to vacate a judgment and order a new trial. Watson v. S.E. Penn. Transp. Auth., 207 F.3d 207, 221-22 (3d Cir.2000). We review a Court’s formulation of jury interrogatories for abuse of discretion. Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir.1998). “The only limitation [on this discretion] is that the questions asked of the jury be" }, { "docid": "7032335", "title": "", "text": "as to which I have had to give the jury a limiting instruction as I have admitted that into evidence. The conclusion of this Court is that substantial evidence has been presented to the jury on the claims brought forward by plaintiff in this case, but it differs from the assertions which are the findings in the EEOC report. • For that reason, I find there is little probative value in the EEOC’s conclusory statements regarding the same record. I further find that those conclusory statements regarding the evidence are expressly stated to be the basis of the EEOC’s detérmination and to admit the determinations without revealing that they are based upon findings that are supported by the evidence in this case, would be, I believe, an erroneous ruling in the sound exercise of this Court’s discretion. This jury would, in effect, be receiving an EEOC determination in the nature of an expert opinion on conclusions which this lay jury is as equipped to -reach from the evidence and its own experience and instructions in the law where this jury will have had the opportunity to view all of the evidence and will have the ability to draw its own conclusions from the evidence presented regarding whether Ms. Coleman was or was not subjected to disparate treatment in her assignments and in her termination in this case. [AS — 11] (emphasis added). The jury returned a verdict in favor of Home Depot. Coleman appeals, arguing that the District Court abused its discretion in excluding the EEOC determination letter from trial. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction based on 28 U.S.C. § 1291. We review the admissibility of evidence for abuse of discretion. See Abrams v. Lightolier, Inc., 50 F.3d 1204, 1213 (3d Cir.1995). “An abuse of discretion is a ‘clear error of judgment,’ and not simply a different result which can arguably be obtained when applying the law to the facts of the case.” SEC v. Infinity Group Co., 212 F.3d 180, 195 (3d Cir.2000) (quoting In re Tutu Wells Contamination" }, { "docid": "23560592", "title": "", "text": "you find that any money was lost because of general conditions in the steel industry not attributable to this conspiracy and so forth, you should, of course, not include any such sums in your calculation of damages ... there should not be any overlapping or duplication of damages. App. at 6377. The jurors could deduce from the charge that they were to divorce from their deliberations any non-conspiratorial activity. Be cause the language cOnveyed this clearly, the challenge to the instruction fails. Concerning the specificity of the interrogatories, we must determine whether the district court abused its discretion in their formulation. McNally v. Nationwide Ins. Co., 815 F.2d 254 (3d Cir.1987). The interrogatories are adequate if they will determine the facts essential to the judgment. Kornicki v. Calmar S.S. Corp., 460 F.2d 1134, 1139 (3d Cir.1972). Our review shows that the questions sent to the jury here met that criteria. There was no abuse of discretion calling for a new trial. 4. The Damage Models B & LE next points to the models designed by the plaintiffs to assess damage and characterizes them as overspeculative and in conflict with the economic realities of the time. As with its sufficiency of evidence causation claim, B & LE was given the opportunity to confront the plaintiffs evidence, aggressively seized upon the opportunity to do so and presented its own version of the extent of damages to the jury. Our review of the record convinces us that the jury's verdict in the plaintiffs' favor is fully supported. The district court did not err in refusing to award a new trial on the damages issue. E. Post-Judgment Interest The last issue we address on B & LE's appeal is the date from which post-judgment interest should be calculated. 28 U.S.C. § 1961, the governing statute, reads in relevant part: § 1961. Interest (a) Interest shall be allowed on any• money judgment in a civil case recovered in a district court,... Such interest shall be calculated from the date of the entry of judgment.... With the statute in mind, we examine, under plenary review, the" }, { "docid": "23630481", "title": "", "text": "the district court abused its discretion in awarding injunctive relief; and (4) the plaintiffs were not entitled to attorneys’ fees. The doctors cross-appeal, raising two issues: (1) they were entitled to a new trial on the retaliation claims; and (2) the district court erred by vacating the award for lost wages. A. Standards of Review We review the denial of a motion for judgment as a matter of law de novo. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 582 (11th Cir.2000). We review the district court’s decision to grant equitable relief for abuse of discretion, underlying questions of law de novo, and findings of fact under the clearly erroneous standard. Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1220 (11th Cir.2002). We review jury instructions for abuse of discretion and give trial judges “wide discretion as to the style and wording employed.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.1999). We review jury instructions de novo to determine whether they misstate the law or mislead the jury. Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233 (11th Cir.2004). Motions for new trial on the basis of erroneous and prejudicial jury instructions are within the district court’s discretion and are reviewed for abuse of discretion. Pate v. Seaboard R.R., Inc., 819 F.2d 1074, 1077 (11th Cir.1987). B. The Secretary’s Motion for Judgment as a Matter of Law Under Rule 50, a court should render judgment as a matter of law when there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Fed.R.Civ.P. 50. We review all of the evidence in the record and draw all reasonable inferences in favor of the nonmoving party. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir.2004) (citing Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 148-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves, 530 U.S. at 150, 120 S.Ct. 2097; see" }, { "docid": "14184057", "title": "", "text": "v. Calmar Steamship Co., 460 F.2d 1134, 1139 (3d Cir.1972); 5A James Wm. Moore, Moore’s Federal Practice 49-16 (1985) (footnote omitted) (“it is within the trial judge’s discretion to structure the special verdict interrogatories”). “The only limitation [on this discretion] is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment.” Kornicki, 460 F.2d at 1139. The interrogatories submitted to the jury on this issue satisfy that standard. By asking whether “if Nationwide had [settled or interpled] the Eckmans’ judgment against McNally would not have been en tered” the interrogatories properly ask the jury to decide whether Nationwide’s breach of duty, if there was one, caused McNally’s injury, i.e. the Eckman judgment. The causation issue is therefore dealt with by the interrogatories. We do not believe that the district judge was obliged to distill the causation issue any more finely than this. B. Nationwide also argues that the district court mischaracterized the standard by which Nationwide’s conduct should be judged because the district court told the jury that Nationwide was required “to exercise that degree of care which a reasonably prudent insurance company would exercise under the same circumstances to see that the interests of the insured are protected.” 2494A. Our discussion of the law governing bad faith failure to settle cases, at page 260 above, demonstrates that Nationwide is wrong on this issue, and that the district court’s instruction was proper. Nationwide cites Casson v. Nationwide Insurance Co., 455 A.2d 361 (Del. Super.1982), as support for what it asserts is the rule that the claim in this case should be resolved by determining whether or not the insurer’s conduct “was clearly without any reasonable justification.” Casson, 455 A.2d at 369. Casson does indeed impose that standard, but not on an insurer in the same position as Nationwide has assumed in this case. There the insurer had failed to pay a claim made by its own policy holder. In that situation the insurer has not assumed the defense of a lawsuit against the insured. The fiduciary duty to conduct such litigation in" }, { "docid": "4864723", "title": "", "text": "3231. We have jurisdiction to review challenges to a conviction under 28 U.S.C. § 1291 and challenges to the sentence under 18 U.S.C. § 3742(a). We review the District Court’s refusal to give specific jury instructions for abuse of discretion, but exercise plenary review over whether the District Court gave a correct statement of law in its jury instructions. United States v. Jimenez, 513 F.3d 62, 74 (3d Cir.2008). Evidentiary rulings are reviewed for abuse of discretion, United States v. Starnes, 583 F.3d 196, 213-14 (3d Cir.2009), but even erroneous rulings only require a new trial if the ruling affects a “substantial right of the party,” Fed. R. Evid. 103(a). An error in an evidentiary ruling is harmless error when “it is highly probable that the error did not affect the result.” Hill v. Laeisz, 435 F.3d 404, 420 (3d Cir.2006). This Court will only reverse a district court’s limitation on cross-examination where the limitation “is so severe as to constitute a denial of the defendant’s right to confront witnesses against him and it is prejudicial to substantial rights of the defendant.” United States v. Casoni, 950 F.2d 893, 918-19 (3d Cir.1991) (internal quotation marks and citations omitted). The District Court’s decision to limit cross-examination is reviewed for abuse of discretion. United States v. Ellis, 156 F.3d 493, 498 (3d Cir.1998). When a motion for a new trial is based on a Brady claim, we “conduct a de novo review of the district court’s conclusions of law as well as a ‘clearly erroneous’ review of any findings of fact.” United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.2005) (citation omitted). III. ANALYSIS 1. Jury Instructions Friedman maintains that the District Court abused its discretion in rejecting his proposed jury instruction because Friedman argues that an instruction that coercion bears upon the defendant’s state of mind is required. This Court has established that “[a] defendant is entitled to a theory of defense instruction if (1) he proposes a correct statement of the law; (2) his theory is supported by the evidence; (3) the theory of defense is not part of" }, { "docid": "7032336", "title": "", "text": "the law where this jury will have had the opportunity to view all of the evidence and will have the ability to draw its own conclusions from the evidence presented regarding whether Ms. Coleman was or was not subjected to disparate treatment in her assignments and in her termination in this case. [AS — 11] (emphasis added). The jury returned a verdict in favor of Home Depot. Coleman appeals, arguing that the District Court abused its discretion in excluding the EEOC determination letter from trial. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction based on 28 U.S.C. § 1291. We review the admissibility of evidence for abuse of discretion. See Abrams v. Lightolier, Inc., 50 F.3d 1204, 1213 (3d Cir.1995). “An abuse of discretion is a ‘clear error of judgment,’ and not simply a different result which can arguably be obtained when applying the law to the facts of the case.” SEC v. Infinity Group Co., 212 F.3d 180, 195 (3d Cir.2000) (quoting In re Tutu Wells Contamination Litig., 120 F.3d 368, 387 (3d Cir.1997)). This standard applies to Rule 803(8)(C) and EEOC determination letters. Walton v. Eaton Corp., 563 F.2d 66, 75 (3d Cir.1977). III. Discussion A. Rule 803(8)(C) Fed.R.Evid. 803(8)(C) provides: The following are not excluded by the hearsay rule, even though the declarant is not available as a witness.... (8) Records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. The rationale of Rule 803(8)(C) is explicated in the advisory committee’s note as being grounded on a presumption of reliability of government records. The note explains that it is “assum[ed] that a public official will perform his duty properly.” Fed.R.Evid. 803(8)(C) advisory committee’s note. As was explained in Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 505 F.Supp. 1125, 1145 (E.D.Pa.1980), “the drafters of 803(8)(C) were motivated by a variation" }, { "docid": "4822512", "title": "", "text": "law, requesting among other things that the court discard the jury verdict. The district court granted the post-trial motion as to MSG, concluding that there was no evidence indicating that MSG sold domain names, operated the servers, or did anything more than own and lease the hardware operated by Akanoc and Chen. The district court denied the motion as to Akanoc and Chen, awarded statutory damages, and entered a permanent injunction restricting them from engaging in similar conduct. Akanoc and Chen timely appealed. Louis Vuitton cross-appealed the district court’s order granting judgment as a matter of law in favor of MSG. II. Standards of Review We review de novo whether jury instructions misstate the law. Wall Data Inc. v. L.A. Cnty. Sheriff’s Dep’t, 447 F.3d 769, 784 (9th Cir.2006). We review the district court’s formulation of jury instructions for abuse of discretion. Id. We have consistently held that “an error in instructing the jury in a civil case does not require reversal if the error was ‘more probably than not harmless.’ ” Lambert v. Ackerley, 180 F.3d 997, 1008 (9th Cir.1999) (en banc) (quoting Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir.1985)). We review de novo a district court’s decision to grant or deny judgment as a matter of law. Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 938 (9th Cir.2009). III. Discussion A. The Cross-Appeal Louis Vuitton contends that the district court erred when it set aside the jury’s verdict against MSG. We disagree. The jury’s verdict as to MSG was not supported by “substantial evidence.” See Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir.2001) (“Substantial evidence is evidence adequate to support the jury’s conclusion. ...”). With regard to both contributory copyright and trademark infringement, the district court’s verdict form asked the jury to determine whether each defendant, while knowing that its customers were using its services to directly infringe Louis Vuitton’s intellectual property rights, “had reasonable means to withdraw its services so that they could not be used to directly infringe but continued to provide its services.” We agree" }, { "docid": "14184056", "title": "", "text": "which scenario it found to be the real one: otherwise the court cannot tell whether the verdict for plaintiff was premised on a set of fact which should, or should not, give rise to liability. Here, however, there is no doubt as to whether or not the jury believed that Nationwide had failed to settle or interplead before 31 October, 1981: the parties are agreed that Nationwide did neither. In addition we have held that, on the facts of this case, the district court did not err in permitting the jury to impose on Nationwide a duty to interplead. These two facts each independently dictate the conclusion that it was unnecessary for the jury to explain whether it believed Nationwide’s breach of duty lay in its failure to settle or its failure to interplead. Nationwide also attacks the special interrogatories as improper because, Nationwide contends, they did not spell out the proximate causation issue with sufficient clarity. Under rule 49, Fed.R.Civ.P., however, the formulation of special verdict interrogatories is within the district court’s discretion. Kornicki v. Calmar Steamship Co., 460 F.2d 1134, 1139 (3d Cir.1972); 5A James Wm. Moore, Moore’s Federal Practice 49-16 (1985) (footnote omitted) (“it is within the trial judge’s discretion to structure the special verdict interrogatories”). “The only limitation [on this discretion] is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment.” Kornicki, 460 F.2d at 1139. The interrogatories submitted to the jury on this issue satisfy that standard. By asking whether “if Nationwide had [settled or interpled] the Eckmans’ judgment against McNally would not have been en tered” the interrogatories properly ask the jury to decide whether Nationwide’s breach of duty, if there was one, caused McNally’s injury, i.e. the Eckman judgment. The causation issue is therefore dealt with by the interrogatories. We do not believe that the district judge was obliged to distill the causation issue any more finely than this. B. Nationwide also argues that the district court mischaracterized the standard by which Nationwide’s conduct should be judged because the district court told the jury" }, { "docid": "22562832", "title": "", "text": "Cir. 1959)). On appeal we are required “to review the record in this case in the light most favorable to the non-moving party, ... and to affirm the judgment of the district court denying the motion[] unless the record is ‘critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief.’ ” Dawson v. Chrysler Motors Corp., 630 F.2d 950, 959 (3d Cir.1980) (quoting Denne-ny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969) ), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Normally, the district court’s ruling on a motion for a new trial is reviewed for abuse of discretion, Wagner v. Pennsylvania Railroad Co., 282 F.2d 392 (3d Cir.1960), but “if the court’s denial was based on the application of a legal precept, review is plenary.” Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329, 333 (3d Cir.1985). Where a contention for a new trial is based on the admissibility of evidence, the “trial court has great discretion ... which will not be disturbed on appeal absent a finding of abuse.” Kane v. Ford Motor Co., 450 F.2d 315, 316 (3d Cir.1971). The standard of review for the district court’s ruling on points for charge is also abuse of discretion. However, “[ojnce the court has given an instruction, we must ‘determine whether the charge, taken as a whole and viewed in the light of the evidence, fairly and adequately submits the issues in the case to the jury.’ ” United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984) (quoting Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2952, 53 L.Ed.2d 1079 (1977)), cert. denied, — U.S. -, 105 S.Ct. 1397, 84 L.Ed.2d 785 (1985). We should reverse the trial court “only if the instruction was capable of confusing and thereby misleading the jury.” Id. III. Based on appellants’ brief and oral argument, we understand appellants to contend that the documentary evidence submitted at trial was sufficient to establish, as a matter of law, that Mercedes conspired with its" }, { "docid": "572201", "title": "", "text": "injunction pending appeal. Eaton filed a timely notice of appeal and Plaintiffs filed a timely cross-appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1337. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over an order denying a motion for judgment as a matter of law. LePage’s Inc. v. 3M, 324 F.3d 141, 145 (3d Cir.2003) (en banc). A motion for judgment as a matter of law should be granted “only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.” Id. at 145-46 (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993)). We review questions of law underlying a jury verdict under a plenary standard of review. Id. at 146 (citing Bloom v. Consol. Rail Corp., 41 F.3d 911, 913 (3d Cir.1994)). Underlying legal questions aside, “[a] jury verdict will not be overturned unless the record is critically deficient of that quantum of evidence from which a jury could have rationally reached its verdict.” Swineford v. Snyder Cnty., 15 F.3d 1258, 1265 (3d Cir.1994). We review a district court’s decision to exclude expert testimony for abuse of discretion. Montgomery Cnty. v. Microvote Corp., 320 F.3d 440, 445 (3d Cir.2003). To the extent the district court’s decision involved an interpretation of the Federal Rules of Evidence, our review is plenary. Elcock v. Kmart Corp., 233 F.3d 734, 745 (3d Cir.2000). We also review a district court’s decisions regarding discovery and case management for abuse of discretion. United States v. Schiff, 602 F.3d 152, 176 (3d Cir.2010); In re Fine Paper Antitrust Litig., 685 F.2d 810, 817-18 (3d Cir.1982). We review legal conclusions regarding standing de novo, and the underlying factual determinations for clear error. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 253 (3d Cir.2005). III. DISCUSSION A. Effect of the Price-Cost Test The most significant issue in this case is" }, { "docid": "1557123", "title": "", "text": "or leave that for the jury. In either event, there must be an appropriate instruction covering the relevant state law. Next, regardless of how the legal standard is submitted to the jury, the court should instruct the jury that it should test the facts against that legal standard and decide whether there was a reasonable probability of ultimate success. This instruction should be given in connection with the charge on materiality. In sum, we hold that where a minority shareholder in a merger alleges a material misrepresentation or omission by the defendant in connection with the merger that deprived him of a state law injunctive remedy, a cause of action is asserted under rule 10b-5. For such information to be material, the plaintiff bears the burden of proving that had he received the correct information he would have had a reasonable probability of ultimate success in the state injunctive action. We remand to the district court to determine whether there was sufficient evidence to create a jury issue on materiality.' B. Causation Because of the possibility of a new trial, we will consider the remaining contentions of the defendants. The defendants claim that the district court erred by failing to give a special interrogatory on causation. We are not persuaded by this argument. The district court has wide latitude in deciding which issues should be covered by special interrogatories. Its action will only be overturned for an abuse of discretion. Here, the district court covered causation in its charge and felt a special interrogatory would not be necessary. General ly this is not an abuse of discretion. See Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1139 (3d Cir. 1972). The defendants try to overcome this rule by labelling the question of whether the plaintiff could have gotten an injunction as a causation issue. They argue that because this was the crucial element of the plaintiff’s case, it was an abuse of discretion not to have a special interrogatory covering it. This argument is somewhat disingenuous given that a portion of the defendants’ brief treats this as a question of" }, { "docid": "18847216", "title": "", "text": "(3d Cir. 1972). In reviewing the charge on the “successorship” issue, the Court finds that it did not express any views respecting the probative value or weight of the evidence, but that it merely cited examples of the evidence introduced by both sides at trial from which plaintiffs and Carey-Canadian presented their arguments to the jury. The Court finds that the Court’s charge, on balance, was fair and impartial since the Court instructed the jury on three separate occasions that Carey-Canadian could not be held liable for asbestos fiber supplied by the QAC corporate entity if Carey-Canadian was not a continuation of QAC. N.T. 29.31, lines 22-25; N.T. 29.32, lines 21-23; N.T. 29.33, lines 15-16. The Court’s Esso-Exxon illustration was merely submitted as an aid for the jury and was not unfairly prejudicial. For these reasons, the Court did not err in its charge to the jury. (3) Successorship Issue — -Special Interrogatories Carey-Canadian contends that the Court erred in failing to frame a special interrogatory to the jury which would ask the jury to determine (1) whether QAC supplied asbestos fiber to the Plymouth Meeting plant to which plaintiffs were exposed, and (2) whether Carey-Canadian was the successor to QAC. Pursuant to Fed.R. Civ.P. 49, a trial judge has wide discretion in determining the form of the special verdict and written interrogatories submitted to the jury. Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1139 (3d Cir. 1972). The only limitations imposed upon the Court’s discretion is that the interrogatories be adequate to determine the factual issues essential to the judgment in the case and that the interrogatories be fashioned in such a manner that valid theories of recovery or defenses are not withdrawn from consideration by the jury in the case. Kornicki v. Calmar Steamship Corp., supra. In the present case, the Court submitted a special interrogatory to the jury with respect to each claimant which asked whether the plaintiff was exposed at his place of employment to asbestos fiber supplied by Carey-Canadian Mines. The Court specifically instructed the jury that they could find Carey-Canadian liable if they" }, { "docid": "22575339", "title": "", "text": "works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.” McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir.1985) (quoting McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.1980)) (internal quotation marks omitted). A timely appeal from the denial of a Rule 59 motion to alter or amend the judgment brings up the underlying judgment for review, so that our standard of review varies with the underlying judicial decision. Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986). We exercise plenary review in determining whether a jury instruction misstates a legal standard. Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir.1989). We consider the jury instructions as a whole to determine whether they fairly and adequately contain the law applicable to the case. See Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir.1995); Savarese, 883 F.2d at 1202. “We review pre-trial and trial court rulings concerning the admission of evidence for abuse of discretion,” but “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir.1994) (internal quotation marks omitted). “[I]f we find non-constitutional error in a civil suit, such error is harmless only if it is highly probable that the error did not affect the outcome of the case.” Id. (internal quotation marks omitted). III. A. We will address first the London Insurers’ argument that the district court gave erroneous jury instructions regarding the trigger of coverage under their policies. The district court instructed the jury that the policies could be triggered in either of two ways: These policies are triggered if either, one, the cause of the property damage or, two, the property damage itself took place during the policy period for each site. Thus, if an event or events that eventually led to property damage took place during the policy period, or if ... the property damage itself took place during the policy period, the" }, { "docid": "23560591", "title": "", "text": "Rather, B & LE asserts that outside economic factors, totally unrelated to its industry, made investment in self-unloader technology unattractive~ And, forming the focus of B & LE's challenge, the jury instruction and special interrogatories were inadequate to convey to the jury the importance of the link of causation to damages. To the contrary, the instruction to the damages jury explained the proper focus of the jury's deliberation-how damages were to be calculated, how to evaluate the evidence and the ways in which the parties disagreed on the method of calculation of damages. What is required, and the burden is upon the plaintiff, is to provide you with a reasonable estimate of their damages, what your regard as a reasonably reliable estimate. You are not permitted to simply guess or speculate or pull figures out of the air. You have to have a rationale, reasonable basis for supposing the damages' figure that you come up with is a reasonable estimate, a fair estimate of the probable loss sustained by the plaintiffs. To the extent that you find that any money was lost because of general conditions in the steel industry not attributable to this conspiracy and so forth, you should, of course, not include any such sums in your calculation of damages ... there should not be any overlapping or duplication of damages. App. at 6377. The jurors could deduce from the charge that they were to divorce from their deliberations any non-conspiratorial activity. Be cause the language cOnveyed this clearly, the challenge to the instruction fails. Concerning the specificity of the interrogatories, we must determine whether the district court abused its discretion in their formulation. McNally v. Nationwide Ins. Co., 815 F.2d 254 (3d Cir.1987). The interrogatories are adequate if they will determine the facts essential to the judgment. Kornicki v. Calmar S.S. Corp., 460 F.2d 1134, 1139 (3d Cir.1972). Our review shows that the questions sent to the jury here met that criteria. There was no abuse of discretion calling for a new trial. 4. The Damage Models B & LE next points to the models designed by" }, { "docid": "22575338", "title": "", "text": "pursuant to 28 U.S.C. § 1332. We have appellate jurisdiction over the final order pursuant to 28 U.S.C. § 1291. The parties agree, as do we, that Pennsylvania law governs this case. We review the district court’s interpretation and prediction of state law de novo. Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457, 459 (3d Cir.1993). In adjudicating a case under state law, we are not free to impose our own view of what state law should be; rather, we are to apply existing state law as interpreted by the state’s highest court in an effort to predict how that court would decide the precise legal issues before us. Kowalsky v. Long Beach Township, 72 F.3d 385, 388 (3d Cir.1995). In the absence of guidance from the state’s highest court, we must look to decisions of state intermediate appellate courts, of federal courts interpreting that state’s law, and of other state supreme courts that have addressed the issue. Wiley, 995 F.2d at 459-60. We must also consider “analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.” McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir.1985) (quoting McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.1980)) (internal quotation marks omitted). A timely appeal from the denial of a Rule 59 motion to alter or amend the judgment brings up the underlying judgment for review, so that our standard of review varies with the underlying judicial decision. Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986). We exercise plenary review in determining whether a jury instruction misstates a legal standard. Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir.1989). We consider the jury instructions as a whole to determine whether they fairly and adequately contain the law applicable to the case. See Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir.1995); Savarese, 883 F.2d at 1202. “We review pre-trial and trial court rulings concerning the admission of evidence for abuse of discretion,” but" }, { "docid": "2674483", "title": "", "text": "on all claims. Armstrong now appeals. III. Standard of Review Generally, we review jury instructions for abuse of discretion. United States v. McLaughlin, 386 F.3d 547, 551-52 (3d Cir.2004). However, our review is plenary when the issue is whether the instructions misstated the law. Id. at 552. We must consider “whether the charge, ‘taken as a whole, properly apprise[d] the jury of the issues and the applicable law.’ ” Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir.1998) (quoting Limbach Co. v. Sheet Metal Workers Int’l Ass’n, 949 F.2d 1241, 1259 n. 15 (3d Cir. 1991)). Harmless errors in parts of a jury-charge that do not prejudice the complaining party are not sufficient grounds on which to vacate a judgment and order a new trial. Watson v. S.E. Penn. Transp. Auth., 207 F.3d 207, 221-22 (3d Cir.2000). We review a Court’s formulation of jury interrogatories for abuse of discretion. Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir.1998). “The only limitation [on this discretion] is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment.” Id. at 216 (citations omitted). We also review for abuse of discretion a Court’s determination of issues and claims to be re-tried following the grant of a new trial. Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir.1977). IV. Discussion In order to prevail on his failure to accommodate claim under the LAD, Armstrong had to establish four elements: (1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317-320 (3d Cir.1999); Tynan v. Vicinage 13, 351 N.J.Super. 385, 798 A.2d 648, 657, 659 (2002). Armstrong established the first element, as the jury explicitly decided in response to an interrogatory that he was disabled, and the Defendants acknowledge that Armstrong informed the Hospital of his condition. Armstrong also satisfied the second element, as it is undisputed that he" } ]

[ { "docid": "12901858", "title": "", "text": "the fraudulent issuance of the note for $782,000 for grossly inadequate consideration. Desser was able to deceive the shareholders initially by making affirmative misrepresentations in the 1965 report which induced the shareholders not to sell their stock and not to take protective action. Then by not filing the 1966 report the directors were able to conceal the fraud from the shareholders while continuing, allegedly, to plunder the corporation. This omission violated the directors’ duty to disclose fully the material facts relating to the Henry Hudson Hotel and the River Oaks Farm transactions. Although the plaintiff’s complaint does not clearly articulate this theory of the case, it is evident that the filing of the 1965 report and the failure to file the 1966 report were vital elements in the over-all scheme to defraud and that this scheme was accomplished “in connection with the purchase or sale of securities” to which § 10(b) and Rule 10b-5 refer. Recovery, if there be recovery, under § 10(b) and Rule 10b-5 will provide the same relief sought under § 15(d) and Rule 15d-l. ****** IV. Greenbreak appeal. On appeal, Greenbreak, Inc., defendant-appellee, filed a separate brief pointing out that the corporation was a purchaser of the River Oaks Farm; that it was not a director or under any duty to WorldWide or its stockholders. The amended complaint, however, alleges that Green-break and others “wrongfully participated as co-conspirators”. On remand, the trial court should determine whether World-Wide issued treasury stock to Greenbreak and whether the facts support the plaintiff’s conspiracy theory. Accordingly, we reverse and remand for proceedings consistent with this opinion. . It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange — •* * * (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may" } ]

[ { "docid": "23666434", "title": "", "text": "Inc., 7 Cir. 1969, 415 F.2d 1326, and Boggess v. Hogan, N.D.Ill. 1971, 328 F.Supp. 1048, establish that the dilution of a shareholder’s equity interest is a cognizable element of damages for violation of Rule 10b-5 and that their equity interest was in fact diluted by (1) the NIB-IGB stock exchange, and (2) defendants’ misrepresentations and omissions, which greatly altered the composite picture of the corporation from that represented to plaintiffs at the time of their initial purchase of IGB stock. In Swanson v. American Consumer Industries, Inc., supra, the Seventh Circuit held that the dilution of equity interest is an appropriate measure of damages where dilution was caused by fraud in connection with a purchase or sale in which the claimants participated. Boggess v. Hogan, supra, held that individual stockholders could maintain Rule 10b-5 claims when fraud in connection with a purchase or sale in which their corporation participated diluted the equity position of the corporation, and thus does support plaintiffs’ argument. This Circuit, however, has already rejected the result reached there. In Herpich v. Wallace, 5 Cir. 1970, 430 F.2d 792, we refused to allow shareholders of a corporation to maintain an individual Rule 10b-5 claim arising out of a fraudulent purchase by their corporation. We held that: “we are of the opinion that only purchasers and sellers of securities involved in an alleged Rule 10b-5 violation — that is, securities in connection with which fraud has allegedly been committed — can show injury of the type the rule is meant to prevent.” Id., 430 F.2d at 806. In short, a reading of Swanson with Herpich establishes that plaintiffs do not have standing to seek individual damages for the dilution of equity interest caused by the NIB-IGB stock exchange because plaintiffs were neither purchasers nor sellers in connection with that transaction. Plaintiffs also contend that their equity interest was diluted by defendants’ failure to fulfill the promises that had induced plaintiffs to purchase IGB stock. The District Court held that because plaintiffs had already made a profit of approximately $20,000 on their IGB stock, they were unable to" }, { "docid": "23666426", "title": "", "text": "§ 517.-21, plaintiffs are barred because they failed to tender their securities to defendants as required by F.S.A. § 517.21. Plaintiffs reply that Florida’s three-year statute of limitations for actions brought for relief on the ground of fraud, F.S.A. § 95.11, is applicable and that they fall well within that time period. Defendants’ argument misconceives the issue. This suit was maintained in the District Court under Rule 10b-5, not under pendent jurisdiction of a state claim. When applying the forum’s statute of limitations to actions brought under the federal securities laws, federal courts borrow only the chronometric aspects and not the procedural or substantive nuances of the law of the forum. We therefore find it unnecessary to determine whether the applicable statute of limitations is the two-year limitation embodied in Section 517.21 or the three-year limitation of Section 95.11 because plaintiffs commenced this action well within either period of limitation. C. Plaintiffs’ Standing to Maintain the Derivative Claim Defendants next maintain that the District Court erred in allowing plains tiffs to maintain the derivative Rule 10b-5 claim on behalf of IGB because at no time material to the occurrences complained of were plaintiffs stockholders of IGB entitled to maintain a derivative stockholders’ .suit. See Fed.R.Civ.P. 23.-1. Defendants contention, supported more by invective and vituperation than by scholarly analysis or citation of authority, is apparently based on a belief that: (1) plaintiffs’ allegedly unclean hands bar them from maintaining a derivative suit; or (2) the fact that plaintiffs made a profit in excess of their original investment divests them of stockholder status, even though plaintiffs at all relevant times retained approximately 14,000 shares of IGB stock; or (3) the District Court was “clearly erroneous” in finding that plaintiffs at all times retained 14,000 shares of IGB. We hold that the District Court did not err in allowing plaintiffs to maintain the derivative Rule 10b-5 claim. Defendants are purblind to the fact that this is not a case of a brigand seeking to recover his loot. Plaintiffs’ actions, alleged to be illegal, were in no way involved with the transactions for which" }, { "docid": "23666415", "title": "", "text": "their 37,500 shares to approximately fourteen persons in various parts of the United States at prices ranging from $2.00 to $5.00 per share. In these transactions plaintiffs realized a total of $95,000.00, some $20,000 more than they had paid for all of their IGB stock. In fact, an application for approval as a bank holding company was never filed on behalf of IGB. Furthermore, defendants did not pay $2.00 cash per share when they acquired their own stock interest in IGB. First, in September, 1969, defendants exchanged 19,826 shares of stock in the National Industrial Bank [hereinafter NIB] with IGB for 346,995 newly issued shares- of IGB stock, pursuant to an exchange ratio computed by defendant Roberts. At the exchange value of $2.00 per share, the IGB stock acquired in the exchange by defendants was worth $693,910.00. The NIB stock that the corporation received from defendants in exchange was worth considerably less. It had been purchased by defendants in January, 1968 for $198,260.00, or $10.00 per share, and was selling for $10.00 per share in October, 1969. Second, on January 16, 1970, defendants received 184,935 shares of IGB stock in exchange for non-interest bearing, unsecured promissory notes in the amount of $369,870.00 due in 1973. A voting trust agreement reflects that defendants controlled 1,336,391 voting shares of IGB and were at all material times in control of the company. Although IGB’s Certificate of Incorporation requires the directors to fix the value of any property received by the corporation in exchange for stock, this was •not done in conjunction with the transfer by defendants of their 19,826 shares of their NIB stock for 346,995 shares of IGB stock [hereinafter the “NIB-IGB stock exchange”]. In that exchange, a ratio of 17t4 to 1 was the basis used, and the value of the IGB stock was calculated at its par of $1.00 per share. Under this ratio, defendants received the equivalent of $17.50 per share for their NIB stock. If the transaction had been based on payment of $2.00 per share for the IGB stock, the sum that defendants had represented would be" }, { "docid": "23666427", "title": "", "text": "10b-5 claim on behalf of IGB because at no time material to the occurrences complained of were plaintiffs stockholders of IGB entitled to maintain a derivative stockholders’ .suit. See Fed.R.Civ.P. 23.-1. Defendants contention, supported more by invective and vituperation than by scholarly analysis or citation of authority, is apparently based on a belief that: (1) plaintiffs’ allegedly unclean hands bar them from maintaining a derivative suit; or (2) the fact that plaintiffs made a profit in excess of their original investment divests them of stockholder status, even though plaintiffs at all relevant times retained approximately 14,000 shares of IGB stock; or (3) the District Court was “clearly erroneous” in finding that plaintiffs at all times retained 14,000 shares of IGB. We hold that the District Court did not err in allowing plaintiffs to maintain the derivative Rule 10b-5 claim. Defendants are purblind to the fact that this is not a case of a brigand seeking to recover his loot. Plaintiffs’ actions, alleged to be illegal, were in no way involved with the transactions for which the District Court granted derivative relief. Furthermore, although defendants contend that plaintiffs are economic pirates disqualified because of their piracy from representing an innocent corporation, the District Court made no such finding and in fact found that only defendants were picaroons. Whether plaintiffs were or were not knights in shining armor is irrelevant under Rule 23.1 of the Federal Rules of Civil Procedure, so long as they fairly and adequately represented the shareholders in enforcing the rights of IGB. Assuming, without deciding, that unclean hands might bar plaintiffs from maintaining a derivative Rule 10b-5 claim, we find that the District Court exercised its discretion properly when it refused to find plaintiffs barred under the doctrine. We next find that the fact that plaintiffs made a profit on their original investment in no way alters their status as stockholders or their standing to bring a derivative claim. That plaintiffs’ stock represented a profit to them does not alter its status as stock for the purposes of Rule 23.1 of the Federal Rules of Civil Procedure. As" }, { "docid": "23666420", "title": "", "text": "the individual plaintiffs the option of rescinding their purchase of 14,000 shares of IGB stock. The Court also held that Section 5 of the 1933 Act did not authorize derivative relief for the corporate entity. Finally, the District Court found that defendants breached their fiduciary duty on January 16, 1970 by paying for IGB stock with non-interest bearing notes. The Court ordered defendants to pay IGB 7i/2 percent back-interest on the $369,870.00 note, from January 16, 1970 to the date of the judgment. The District Court, however, refused to find that plaintiffs were entitled to be reimbursed for the costs of maintaining a derivative action for IGB. The Court also refused to appoint a receiver or to grant other equitable relief sought by plaintiffs. On cross-appeal, defendants contend that the District Court erred by: (A) failing to recognize plaintiffs’ unclean hands and to take appropriate remedial actions against plaintiffs; (B) failing to rule that the derivative Rule 10b-5 claim was barred by the statute of limitations; (C) allowing plaintiffs to maintain a derivative action; (D) failing to give proper weight to defendants’ evidence concerning the value of the NIB stock exchanged for IGB stock; and (E) substituting its business judgment for that of the IGB stockholders and directors who ratified defendants’ activities. Plaintiffs contend on direct appeal that the District Court erred by: (A) refusing to grant plaintiffs individual relief pursuant to Rule 10b-5; (B) not granting interest to IGB on the judgment recovered from defendants; (C) dismissing plaintiffs’ derivative Section 5 claim; (D) failing to grant further equitable relief to correct defendants’ wrongdoing; and (E) denying plaintiffs’ request for reimbursement for the costs of attorneys’ fees and expert witness fees incurred in maintaining the derivative claim. ■ III. DEFENDANTS’ APPEAL The defendants’ briefs and arguments are predicated upon facts and inferences and conclusions that the trial court neither found nor was compelled to find. In the welter of charges and counter charges the ensuing obfuscation can be visioned away by the application of a relatively few simple legal propositions, the most elementary principle being that appellate courts are governed" }, { "docid": "23666435", "title": "", "text": "v. Wallace, 5 Cir. 1970, 430 F.2d 792, we refused to allow shareholders of a corporation to maintain an individual Rule 10b-5 claim arising out of a fraudulent purchase by their corporation. We held that: “we are of the opinion that only purchasers and sellers of securities involved in an alleged Rule 10b-5 violation — that is, securities in connection with which fraud has allegedly been committed — can show injury of the type the rule is meant to prevent.” Id., 430 F.2d at 806. In short, a reading of Swanson with Herpich establishes that plaintiffs do not have standing to seek individual damages for the dilution of equity interest caused by the NIB-IGB stock exchange because plaintiffs were neither purchasers nor sellers in connection with that transaction. Plaintiffs also contend that their equity interest was diluted by defendants’ failure to fulfill the promises that had induced plaintiffs to purchase IGB stock. The District Court held that because plaintiffs had already made a profit of approximately $20,000 on their IGB stock, they were unable to show any damages arising out of their purchase. Typically in Rule 10b-5 damage actions: “[d]efrauded buyers who have prevailed on the merits have recovered their purchase price on a recission measure of damages, whether or not formally suing for recission. In an appropriate situation, e. g., if the scurities are not worthless, a buyer can keep them and recover damages for the difference between the price paid and the real value when bought. This is an out of pocket rule not covering expected speculative profit.” 2 A. Bromberg, Securities Law: Fraud, § 9.1, p. 226, at nn. 2-4 (emphasis added) (1971). We find that this is the appropriate measure of damages. Therefore, in light of the facts that: (1) the District Court award plaintiffs the option to rescind the purchase of their remaining shares of IGB; (2) plaintiffs have already made a $20,000 profit on their original purchase of IGB stock; and (3) Rule 10b-5 only provides for recovery of actual damages, 15 U.S.C. § 78bb, and not for loss of speculative profits, Schaefer v." }, { "docid": "23666428", "title": "", "text": "the District Court granted derivative relief. Furthermore, although defendants contend that plaintiffs are economic pirates disqualified because of their piracy from representing an innocent corporation, the District Court made no such finding and in fact found that only defendants were picaroons. Whether plaintiffs were or were not knights in shining armor is irrelevant under Rule 23.1 of the Federal Rules of Civil Procedure, so long as they fairly and adequately represented the shareholders in enforcing the rights of IGB. Assuming, without deciding, that unclean hands might bar plaintiffs from maintaining a derivative Rule 10b-5 claim, we find that the District Court exercised its discretion properly when it refused to find plaintiffs barred under the doctrine. We next find that the fact that plaintiffs made a profit on their original investment in no way alters their status as stockholders or their standing to bring a derivative claim. That plaintiffs’ stock represented a profit to them does not alter its status as stock for the purposes of Rule 23.1 of the Federal Rules of Civil Procedure. As long as plaintiffs actually owned stock at the time of the challenged actions, then plaintiffs have standing to maintain a non-collusive Rule 10b-5- claim under the provisions of Rule 23.1. Finally, we hold that the District Court’s finding that plaintiffs resold all but 14,000 of their shares of IGB was not clearly erroneous. Neither by selectively reading the record, nor by isolating words and phrases, can defendants establish that plaintiffs were not shareholders at the critical and crucial times. The transcript and record, when fairly and comprehensively examined in their entirety, amply support the District Court’s finding that plaintiffs were stockholders at the time of the occurrences they attack. D. Valuation of the NIB Stock Defendants assert that the District Court erred in valuating the 19,826 shares of NIB stock that they exchanged for 346,995 shares of IGB stock in the NIB-IGB stock exchange. More specifically, defendants insist that the' Court did not give proper weight to general trade practices concerning controlling stock and to other evidence in support of defendants’ belief that the exchange" }, { "docid": "23666430", "title": "", "text": "rate was not detrimental or unfavorably harmful to IGB. We cannot agree. The District Court, the finder of fact, held: “Under any measure of value, the NIB stock was greatly overvalued in the exchange.” We have considered the record before us, and under the limited factual review open to us, see Fed.R.Civ.P. 52(a); Movible Offshore, Inc. v. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 271, we are unable to say that the District Court’s valuation of NIB stock was clearly erroneous. E. Stockholder and Director “Ratification” Defendants contend that the District Court wrongfully substituted its business judgment for that of the Board of Directors of IGB. Defendants urge that this is especially so in light of the fact that the IGB stockholders allegedly ratified the corporate directors’ actions. The problem with this contention is that defendants have failed to adduce adequate evidence that in any way shows that the stockholders of IGB made a knowing ratification of either the NIB-IGB stock exchange or of the sale of IGB stock for unsecured, noninterest bearing notes. We therefore refuse to hold that the stockholders of IGB ratified the activities found by the District Court to be fraudulent. The only action that we have discovered in the record that arguably constitutes a ratification of defendants’ action is that taken by the newly constituted Board of Directors on January 16, 1970. At that time, the defendants themselves elected three new members to the IGB Board, and the newly constituted Board, with all three defendants participating, then held two different votes to ratify defendants’ past actions as directors. The newly elected directors, with defendants abstaining, also voted to sell defendants additional IGB stock for unsecured, non-interest bearing notes. We are mindful of the Florida rule that “[i]t cannot be disputed that a board of directors of a corporation is without power to ratify that which it cannot do directly or that which it could not authorize to be done initially. It has no power to ratify a' void or illegal act.” Flight Equipment & Engineering Corp. v. Shelton, 103 So. 2d 615," }, { "docid": "23666436", "title": "", "text": "show any damages arising out of their purchase. Typically in Rule 10b-5 damage actions: “[d]efrauded buyers who have prevailed on the merits have recovered their purchase price on a recission measure of damages, whether or not formally suing for recission. In an appropriate situation, e. g., if the scurities are not worthless, a buyer can keep them and recover damages for the difference between the price paid and the real value when bought. This is an out of pocket rule not covering expected speculative profit.” 2 A. Bromberg, Securities Law: Fraud, § 9.1, p. 226, at nn. 2-4 (emphasis added) (1971). We find that this is the appropriate measure of damages. Therefore, in light of the facts that: (1) the District Court award plaintiffs the option to rescind the purchase of their remaining shares of IGB; (2) plaintiffs have already made a $20,000 profit on their original purchase of IGB stock; and (3) Rule 10b-5 only provides for recovery of actual damages, 15 U.S.C. § 78bb, and not for loss of speculative profits, Schaefer v. First National Bank of Lincolnwood, N.D.Ill.1970, 326 F.Supp. 1186, 1193, appeal dismissed, 7 Cir. 1972, 465 F.2d 234; Ross v. Licht, S.D.N.Y.1967, 263 F.Supp. 395, 410, plaintiffs are unable to show that they suffered any damages compensable under Rule 10b-5. B. Prejudgment Interest Plaintiffs’ contend that the District Court erred in not granting interest on the moneys that the Court ordered defendants to reimburse to IGB in connection with the NIB-IGB stock exchange. Relying on Joseph E. Bennet Co. v. Trio Industries, Inc., 1 Cir. 1962, 306 F.2d 546, plaintiffs claim that the right to recover interest on a claim is a state question and that Florida law requires that IGB recover interest on the judgment entered in its favor. Plaintiffs reliance on Joseph E. Bennet Co. v. Trio Industries, Inc., supra, is erroneous. Bennet was a diversity case where state substantive law clearly would be controlling, and it is thus of no weight in an action brought pursuant to the federal securities laws. In determining whether prejudgment interest is allowed on damages awarded pursuant" }, { "docid": "23666429", "title": "", "text": "long as plaintiffs actually owned stock at the time of the challenged actions, then plaintiffs have standing to maintain a non-collusive Rule 10b-5- claim under the provisions of Rule 23.1. Finally, we hold that the District Court’s finding that plaintiffs resold all but 14,000 of their shares of IGB was not clearly erroneous. Neither by selectively reading the record, nor by isolating words and phrases, can defendants establish that plaintiffs were not shareholders at the critical and crucial times. The transcript and record, when fairly and comprehensively examined in their entirety, amply support the District Court’s finding that plaintiffs were stockholders at the time of the occurrences they attack. D. Valuation of the NIB Stock Defendants assert that the District Court erred in valuating the 19,826 shares of NIB stock that they exchanged for 346,995 shares of IGB stock in the NIB-IGB stock exchange. More specifically, defendants insist that the' Court did not give proper weight to general trade practices concerning controlling stock and to other evidence in support of defendants’ belief that the exchange rate was not detrimental or unfavorably harmful to IGB. We cannot agree. The District Court, the finder of fact, held: “Under any measure of value, the NIB stock was greatly overvalued in the exchange.” We have considered the record before us, and under the limited factual review open to us, see Fed.R.Civ.P. 52(a); Movible Offshore, Inc. v. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 271, we are unable to say that the District Court’s valuation of NIB stock was clearly erroneous. E. Stockholder and Director “Ratification” Defendants contend that the District Court wrongfully substituted its business judgment for that of the Board of Directors of IGB. Defendants urge that this is especially so in light of the fact that the IGB stockholders allegedly ratified the corporate directors’ actions. The problem with this contention is that defendants have failed to adduce adequate evidence that in any way shows that the stockholders of IGB made a knowing ratification of either the NIB-IGB stock exchange or of the sale of IGB stock for unsecured, noninterest" }, { "docid": "23666419", "title": "", "text": "exchange constituted a fraudulent issuance of stock to insiders for grossly inadequate consideration. The District Court found that the NIB stock was worth $198,260.00 and that therefore defendants paid approximately $.57 per share of IGB stock issued to them, or $1.43 less than the $2.-00 per share that defendants represented that they would pay for their IGB purchase. The Court ordered defendants to reimburse IGB $1.43 per share of IGB received in the fraudulent transaction. The District Court also found, however, that plaintiffs were not entitled to indi vidual relief under Rule 10b-5 because they failed to show any actual individual damages in connection with the sale or purchase of IGB stock, since through their own sales of IGB stock they had made a profit of approximately $20,000.-00 in addition to the value of the IGB shares they retained. The District Court relied on Hill York Corp. v. American International Franchises, Inc., 5 Cir. 1971, 448 F.2d 680, in finding that defendants had violated Section 5 of the Securities Act of 1933 and in granting the individual plaintiffs the option of rescinding their purchase of 14,000 shares of IGB stock. The Court also held that Section 5 of the 1933 Act did not authorize derivative relief for the corporate entity. Finally, the District Court found that defendants breached their fiduciary duty on January 16, 1970 by paying for IGB stock with non-interest bearing notes. The Court ordered defendants to pay IGB 7i/2 percent back-interest on the $369,870.00 note, from January 16, 1970 to the date of the judgment. The District Court, however, refused to find that plaintiffs were entitled to be reimbursed for the costs of maintaining a derivative action for IGB. The Court also refused to appoint a receiver or to grant other equitable relief sought by plaintiffs. On cross-appeal, defendants contend that the District Court erred by: (A) failing to recognize plaintiffs’ unclean hands and to take appropriate remedial actions against plaintiffs; (B) failing to rule that the derivative Rule 10b-5 claim was barred by the statute of limitations; (C) allowing plaintiffs to maintain a derivative action; (D)" }, { "docid": "23666413", "title": "", "text": "by IGB for the cost of maintaining this derivative claim. The District Court’s order is therefore affirmed in all things but the denial of plaintiffs’ plea for reimbursement for the costs of maintaining this action. I. THE OPERATIVE FACTS The District Court made numerous and detailed findings of fact and conclusions of law that have greatly aided this Court in its resolution of this complex appeal. Not all of these findings and conclusions are involved in this appeal; thus, we here summarize only those matters necessary for an understanding of our disposition of the case. In early 1969, plaintiff J. William Wolf began discussing with defendants Robert R. Frank and Jack H. Stein the possibility of his investing in IGB, a Florida corporation with its principal place of business in Florida. Defendants Frank, Stein, and Roberts organized IGB with the intention of making it a bank holding company, and they served at all relevant times as officers and directors of IGB. Plaintiff repeatedly met with defendants, in various combinations, to discuss IGB. Prior to plaintiffs’ initial purchase, defendants Stein and Frank represented to plaintiff that they were going to allow not more than fifteen of their friends to purchase shares in IGB before making a proposed public offering: They represented that everyone would pay $2.00 cash per share and that there would be no free stock or fringe benefits. In reliance upon these and other representations concerning (1) an application by IGB to the Federal Reserve Board for approval as a bank holding company, (2) the acquisition plans of IGB, and (3) the progress of registration of IGB shares with the Florida Securities Commission, plaintiffs purchased 37,500 shares of IGB stock for $75,000.00 between July 28, 1969 and October 8, 1969. No registration statement was then in effect as to those securities. As early as July 24, 1969, prior to the initial purchase of IGB stock, plaintiff began inquiring among his friends about resales to them of the IGB stock that was to be purchased. During the six-month period beginning in late July, 1969, plaintiffs sold at least 23,000 of" }, { "docid": "23666433", "title": "", "text": "could “be no more effective way to emasculate the policies of the federal securities laws then to deny relief solely because a fraud was committed by a director rather than by an outsider.” Ruckle v. Roto American Corp., 5 Cir. 1964, 339 F.2d 24, 29. As the District Court, held, and as this Court stated in Rekant v. Desser, supra, 425 F.2d at 882: “[W]hen officers and directors have defrauded a corporation by causing it to issue securities for grossly inadequate consideration to themselves or others in league with them or the one controlling them, the corporation has a federal cause of action under § 10b and Rule 10b-5. . . .” Defendants’ arguments to the contrary are meritless. IV. PLAINTIFFS’ APPEAL A. Plaintiffs’ Individual Rule 10b-5 Claim The District Court dismissed plaintiffs’ individual Rule 10b-5 claim because plaintiffs were unable to show any actual damages inasmuch as the dilution of their equity interest was not a cognizable element of damages for a violation of Rule 10b-5. Plaintiffs argue that Swanson v. American Consumer Industries, Inc., 7 Cir. 1969, 415 F.2d 1326, and Boggess v. Hogan, N.D.Ill. 1971, 328 F.Supp. 1048, establish that the dilution of a shareholder’s equity interest is a cognizable element of damages for violation of Rule 10b-5 and that their equity interest was in fact diluted by (1) the NIB-IGB stock exchange, and (2) defendants’ misrepresentations and omissions, which greatly altered the composite picture of the corporation from that represented to plaintiffs at the time of their initial purchase of IGB stock. In Swanson v. American Consumer Industries, Inc., supra, the Seventh Circuit held that the dilution of equity interest is an appropriate measure of damages where dilution was caused by fraud in connection with a purchase or sale in which the claimants participated. Boggess v. Hogan, supra, held that individual stockholders could maintain Rule 10b-5 claims when fraud in connection with a purchase or sale in which their corporation participated diluted the equity position of the corporation, and thus does support plaintiffs’ argument. This Circuit, however, has already rejected the result reached there. In Herpich" }, { "docid": "23666418", "title": "", "text": "of stockholders of which plaintiffs received notice was held until January 21, 1971. II. ACTION BELOW Soon after the meeting of January 21, 1971, plaintiffs brought this action both individually and derivatively as stockholders of IGB against defendants. The complaint charged that: (1) misrepresentations, omissions, and acts of defendants constituted a manipulative and deceptive device and contrivance and a scheme and artifice to defraud in connection with the sale of securities of IGB to plaintiffs, all of which was in violation of Rule 10b-5; (2) sale by defendants to plaintiffs of the IGB stock constituted a violation of Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e, because no registration covering the securities had been declared effective by the United States Securities and Exchange Commission; (3) defendants committed common-law fraud in connection with plaintiffs’ purchase of IGB stock. Relying on Rekant v. Desser, 5 Cir. 1970, 425 F.2d 872, the District Court found that plaintiffs had established a derivative Rule 10b-5 violation by defendants in that defendants’ activities in the NIB-IGB stock exchange constituted a fraudulent issuance of stock to insiders for grossly inadequate consideration. The District Court found that the NIB stock was worth $198,260.00 and that therefore defendants paid approximately $.57 per share of IGB stock issued to them, or $1.43 less than the $2.-00 per share that defendants represented that they would pay for their IGB purchase. The Court ordered defendants to reimburse IGB $1.43 per share of IGB received in the fraudulent transaction. The District Court also found, however, that plaintiffs were not entitled to indi vidual relief under Rule 10b-5 because they failed to show any actual individual damages in connection with the sale or purchase of IGB stock, since through their own sales of IGB stock they had made a profit of approximately $20,000.-00 in addition to the value of the IGB shares they retained. The District Court relied on Hill York Corp. v. American International Franchises, Inc., 5 Cir. 1971, 448 F.2d 680, in finding that defendants had violated Section 5 of the Securities Act of 1933 and in granting" }, { "docid": "11546391", "title": "", "text": "held the stock for a reasonable time after disclosure. The court found that the defendant had obtained no “enrichment” and received no windfall as a result of the redemption. In \"fact, the stockholders received “a good deal more” than what the stock was worth: “The plain fact is that save for the possibility of selling to an innocent victim, Levine lost nothing from Seilon’s alleged fraud except the euphoria he doubtless experienced during the summer and fall of 1968. This does not constitute the ‘actual damages,’ see - § 28(a), compensable under § 10(b) of the Securities Exchange Act or Rule 10b-5.” Id. at 335. Like Seilon, FBA has obtained no enrichment, and, like Levine, the Abrahamsons have not been damaged. Wolf v. Frank, 477 F.2d 467 (5th Cir.), cert. denied, 414 U.S. 975, 94 S.Ct. 287, 38 L.Ed.2d 218 (1973), lends further support to defendants’ motions. Plaintiffs purchased 37,500 shares in IGB Corporation for $75,000 in reliance on various representations made by defendants. Within six months of the purchase, plaintiffs had sold approximately 23,000 of their shares for $95,000. Plaintiffs sued the defendants individually and derivatively as stockholders of IGB, charging that the defendants had failed to fulfill their promises and alleging conduct generally violative of Rule 10b-5. The Court of Appeals agreed with the lower court’s finding that the plaintiffs were not entitled to individual relief because they failed to show any actual damages, since they had made a profit of roughly $20,000, over and above the value of the IGB shares which had been retained. Moreover, a finding of profit is not even required to defeat an action for damages under Rule 10b-5; an absence of actual loss is sufficient. The District Court in Lewis v. Bogin, 337 F.Supp. 331 (S.D.N.Y.1972), granted summary judgment for defendants on plaintiff’s 10b-5 suit attacking a consummated merger. The merger was conceivably in violation of the securities laws. However, plaintiff suffered no damage, and hence had no valid 10b-5 claim, where his stock commanded the same price before and after the merger. The court in Madigan, Inc. v. Goodman, supra, similarly" }, { "docid": "23666437", "title": "", "text": "First National Bank of Lincolnwood, N.D.Ill.1970, 326 F.Supp. 1186, 1193, appeal dismissed, 7 Cir. 1972, 465 F.2d 234; Ross v. Licht, S.D.N.Y.1967, 263 F.Supp. 395, 410, plaintiffs are unable to show that they suffered any damages compensable under Rule 10b-5. B. Prejudgment Interest Plaintiffs’ contend that the District Court erred in not granting interest on the moneys that the Court ordered defendants to reimburse to IGB in connection with the NIB-IGB stock exchange. Relying on Joseph E. Bennet Co. v. Trio Industries, Inc., 1 Cir. 1962, 306 F.2d 546, plaintiffs claim that the right to recover interest on a claim is a state question and that Florida law requires that IGB recover interest on the judgment entered in its favor. Plaintiffs reliance on Joseph E. Bennet Co. v. Trio Industries, Inc., supra, is erroneous. Bennet was a diversity case where state substantive law clearly would be controlling, and it is thus of no weight in an action brought pursuant to the federal securities laws. In determining whether prejudgment interest is allowed on damages awarded pursuant to Rule 10b-5, federal law governs. Ross v. Licht, supra, 263 F.Supp. at 411. Rule 10b-5, like Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), “being a federal right, its remedial aspects also are a matter of federal law.” Gilson v. Chock Full O’Nuts Corp., 2 Cir. 1964, 331 F.2d 107, 109. Under federal law, whether prejudgment interest should be awarded on a damage recovery in a Rule 10b-5 action is a question of fairness resting within the District Court’s sound discretion. Blau v. Lehman, 1962, 368 U.S. 403, 414, 82 S.Ct. 451, 7 L.Ed.2d 403, 411; Wessels v. Buhler, 9 Cir. 1971, 437 F.2d 279, 284; Norte & Co. v. Huffines, 2 Cir. 1969, 416 F.2d 1189, 1191, 1192, cert. denied sub nom., Muscat v. Norte & Co., 1970, 397 U.S. 989, 90 S.Ct. 1121, 25 L.Ed.2d 396. We perceive no abuse of discretion in the District Court’s denying IGB prejudgment interest in the instant case. C. The Derivative § 5 Claim The District Court awarded defendants summary judgment" }, { "docid": "23666417", "title": "", "text": "paid and that everyone else did in fact pay, then defendants actually received what amounted to $35.00 per share for their NIB stock, which was worth no more than $10.00 per share. The required valuation was also neglected in connection with the issuance of stock to defendants in exchange for their promissory notes. At a directors meeting held on January 16, 1970, defendants, acting as directors, elected three additional directors. The new directors, with defendants abstaining, authorized defendants to purchase the aforementioned 184,935 shares of IGB stock by executing non-interest bearing, unsecured notes in the total amount of $369,870. At the same time that these non-interest bearing and unsecured notes of defendants were outstanding, IGB borrowed greater sums from banks at interest rates varying from 7i/2 percent to 9y2 percent per annum. Such loans were fully secured by part of the assets of IGB. The newly constituted board of directors, with defendants voting, “ratified” the NIB-IGB stock exchange and all other actions taken on previous occasions by defendants as directors. No annual or special meeting of stockholders of which plaintiffs received notice was held until January 21, 1971. II. ACTION BELOW Soon after the meeting of January 21, 1971, plaintiffs brought this action both individually and derivatively as stockholders of IGB against defendants. The complaint charged that: (1) misrepresentations, omissions, and acts of defendants constituted a manipulative and deceptive device and contrivance and a scheme and artifice to defraud in connection with the sale of securities of IGB to plaintiffs, all of which was in violation of Rule 10b-5; (2) sale by defendants to plaintiffs of the IGB stock constituted a violation of Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e, because no registration covering the securities had been declared effective by the United States Securities and Exchange Commission; (3) defendants committed common-law fraud in connection with plaintiffs’ purchase of IGB stock. Relying on Rekant v. Desser, 5 Cir. 1970, 425 F.2d 872, the District Court found that plaintiffs had established a derivative Rule 10b-5 violation by defendants in that defendants’ activities in the NIB-IGB stock" }, { "docid": "23666421", "title": "", "text": "failing to give proper weight to defendants’ evidence concerning the value of the NIB stock exchanged for IGB stock; and (E) substituting its business judgment for that of the IGB stockholders and directors who ratified defendants’ activities. Plaintiffs contend on direct appeal that the District Court erred by: (A) refusing to grant plaintiffs individual relief pursuant to Rule 10b-5; (B) not granting interest to IGB on the judgment recovered from defendants; (C) dismissing plaintiffs’ derivative Section 5 claim; (D) failing to grant further equitable relief to correct defendants’ wrongdoing; and (E) denying plaintiffs’ request for reimbursement for the costs of attorneys’ fees and expert witness fees incurred in maintaining the derivative claim. ■ III. DEFENDANTS’ APPEAL The defendants’ briefs and arguments are predicated upon facts and inferences and conclusions that the trial court neither found nor was compelled to find. In the welter of charges and counter charges the ensuing obfuscation can be visioned away by the application of a relatively few simple legal propositions, the most elementary principle being that appellate courts are governed by the “clearly erroneous” test of Rule 52(a) of the Federal Rules of Civil Procedure when they review District Court fact findings. In applying this test, we have said: “The question is not simply whether the reviewing court would have found otherwise but whether the trial court could permissibly find as it did. The reviewing court should upset a finding only when it ‘is convinced on the whole record that the finding does not reflect the truth and right of the case.’ Wright, Federal Courts § 96, at 432.” Movible Offshore, Inc. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 271. Defendants’ brief oftentimes totally fails to evidence an awareness, much less an understanding, of this controlling principle of appellate jurisprudence. A. Equitable Defenses Defendants contend that the facts clearly establish that plaintiffs were manipulating market-makers who violated applicable statutes and Securities and Exchange Commission rules by selling IGB stock before actually acquiring it. Claiming that this factual contention gives rise to a defense of “unclean hands.” defendants' urge that the District Court" }, { "docid": "23666416", "title": "", "text": "October, 1969. Second, on January 16, 1970, defendants received 184,935 shares of IGB stock in exchange for non-interest bearing, unsecured promissory notes in the amount of $369,870.00 due in 1973. A voting trust agreement reflects that defendants controlled 1,336,391 voting shares of IGB and were at all material times in control of the company. Although IGB’s Certificate of Incorporation requires the directors to fix the value of any property received by the corporation in exchange for stock, this was •not done in conjunction with the transfer by defendants of their 19,826 shares of their NIB stock for 346,995 shares of IGB stock [hereinafter the “NIB-IGB stock exchange”]. In that exchange, a ratio of 17t4 to 1 was the basis used, and the value of the IGB stock was calculated at its par of $1.00 per share. Under this ratio, defendants received the equivalent of $17.50 per share for their NIB stock. If the transaction had been based on payment of $2.00 per share for the IGB stock, the sum that defendants had represented would be paid and that everyone else did in fact pay, then defendants actually received what amounted to $35.00 per share for their NIB stock, which was worth no more than $10.00 per share. The required valuation was also neglected in connection with the issuance of stock to defendants in exchange for their promissory notes. At a directors meeting held on January 16, 1970, defendants, acting as directors, elected three additional directors. The new directors, with defendants abstaining, authorized defendants to purchase the aforementioned 184,935 shares of IGB stock by executing non-interest bearing, unsecured notes in the total amount of $369,870. At the same time that these non-interest bearing and unsecured notes of defendants were outstanding, IGB borrowed greater sums from banks at interest rates varying from 7i/2 percent to 9y2 percent per annum. Such loans were fully secured by part of the assets of IGB. The newly constituted board of directors, with defendants voting, “ratified” the NIB-IGB stock exchange and all other actions taken on previous occasions by defendants as directors. No annual or special meeting" }, { "docid": "23666414", "title": "", "text": "initial purchase, defendants Stein and Frank represented to plaintiff that they were going to allow not more than fifteen of their friends to purchase shares in IGB before making a proposed public offering: They represented that everyone would pay $2.00 cash per share and that there would be no free stock or fringe benefits. In reliance upon these and other representations concerning (1) an application by IGB to the Federal Reserve Board for approval as a bank holding company, (2) the acquisition plans of IGB, and (3) the progress of registration of IGB shares with the Florida Securities Commission, plaintiffs purchased 37,500 shares of IGB stock for $75,000.00 between July 28, 1969 and October 8, 1969. No registration statement was then in effect as to those securities. As early as July 24, 1969, prior to the initial purchase of IGB stock, plaintiff began inquiring among his friends about resales to them of the IGB stock that was to be purchased. During the six-month period beginning in late July, 1969, plaintiffs sold at least 23,000 of their 37,500 shares to approximately fourteen persons in various parts of the United States at prices ranging from $2.00 to $5.00 per share. In these transactions plaintiffs realized a total of $95,000.00, some $20,000 more than they had paid for all of their IGB stock. In fact, an application for approval as a bank holding company was never filed on behalf of IGB. Furthermore, defendants did not pay $2.00 cash per share when they acquired their own stock interest in IGB. First, in September, 1969, defendants exchanged 19,826 shares of stock in the National Industrial Bank [hereinafter NIB] with IGB for 346,995 newly issued shares- of IGB stock, pursuant to an exchange ratio computed by defendant Roberts. At the exchange value of $2.00 per share, the IGB stock acquired in the exchange by defendants was worth $693,910.00. The NIB stock that the corporation received from defendants in exchange was worth considerably less. It had been purchased by defendants in January, 1968 for $198,260.00, or $10.00 per share, and was selling for $10.00 per share in" } ]

[ { "docid": "7867159", "title": "", "text": "presumption. Conclusion For the reasons noted, we AFFIRM the judgment of the bankruptcy court avoiding the debtor’s payment to the creditor as a preferential transfer and, consequently, awarding judgment in favor of the trustee and against the creditor in such amount. AFFIRMED. . This court has jurisdiction under 28 U.S.C. § 1293(b), which permits the parties by mutual agreement to appeal directly to the Court of Appeals “a final judgment, order, or decree of a bankruptcy court of the United States.” See also Matter of Kutner, 656 F.2d 1107, 1111-12 (5th Cir.1981) (section 1293(b) applies to bankruptcy court appeals in the transition period before full implementation of all provisions of the new Bankruptcy Code). . Section 547(b) provides, in pertinent part: [T]he trustee may avoid any transfer of property of the debtor— (1) to or for the benefit of a creditor; (2) for or on account 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; [and] % % sfs (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 . Section 547(c)(2), 11 U.S.C. § 547(c)(2) (1978), provides, in pertinent part: The trustee may not avoid under this section a transfer— ****** (2) to the extent that such transfer was— (A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (D) made according to ordinary business terms. . Since we find the debt was incurred on January 3, 1980, it is unnecessary to decide whether Wilson’s payment was made on March 3rd, the date Wilson deposited Emerald’s check in its account and received credit therefor (as" } ]

[ { "docid": "17979568", "title": "", "text": "the presumption of insolvency in the 90 days before filing. Section 547(f). The presumption does not shift the burden of proof, but merely allocates to the creditor the burden of going forward. 4 Collier, Bankruptcy ¶ 547.26 at 109. Alithochrome need not present evidence of insolvency unless the defendant comes forward with some evidence to rebut the presumption. Rule 301 Federal Rules of Evidence. On a. motion for summary judgment the presumption has the same effect it would otherwise have. 6J Moore, Federal Practice, II 56.11[10] at 56-299 (2d ed. 1985). East Coast in its answer denied Alithochrome’s insolvency but failed to introduce any evidence which would rebut the presumption. A party opposing a motion for summary judgment cannot create a dispute as to a material fact asserted in an affidavit by the moving party simply by relying on a contrary allegation in a well-pleaded answer. Adickes v. S.H. Kress and Company, 398 U.S. 144, 160 at n. 20, 90 S.Ct. 1598, 1609 at n. 20, 26 L.Ed.2d 142 (1970). The very mission of the summary judgment motion is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. Advisory Committee Note on 1963 Amendment to subdivision (e) of Rule 56. The defendant’s general denial of insolvency in the amended answer is inadequate to rebut the plaintiffs allegation that the debtor was insolvent. Therefore, Alithochrome enjoys the benefit of the presumption and no dispute exists. See In re Emerald Oil Co. 695 F.2d 833, 838 (5th Cir.1983). The final element for proof of a preference is that the transfer enabled the creditor to receive more than it would have if the case were in Chapter 7, the transfer had not been made and the creditor had received payment to the extent provided by the Code. § 547(b)(5). Alithochrome alleged that the transfer enabled East Coast to receive more than it otherwise would in liquidation. East Coast did not deny that allegation in its answer. An allegation of the complaint which is not denied in the answer is deemed" }, { "docid": "1068531", "title": "", "text": "insurance proceeds, the debtor was entitled to an exemption of $603,097.60 pursuant to New York Insurance Law § 3212(b)(2). In re Rundlett, 142 B.R. 655 (Bankr.S.D.N.Y. 1992). This decision is presently on appeal. On July 29, 1992, the Chapter 7 trustee commenced-this action to avoid and recover the $130,000.00 payment which the debtor made to her sister in September of 1991. The trustee contends this payment was a voidable preferential transfer pursuant to 11 U.S.C. § 547(b). The defendant’s original answer admitted that the transfer was for or on account of an antecedent debt incurred by the debt- or and that the transfer was made on or within ninety days before the date of the filing of the debtor’s bankruptcy petition. The defendant denied that the transfer would enable the debtor to receive more than she would receive as a creditor under Chapter 7 of the Bankruptcy Code. The defendant’s original answer also asserted two affirmative defenses. The first affirmative defense states that this court lacks jurisdiction because defendant is entitled to a jury trial. The second affirmative defense alleges that the $130,000.00 the defendant received from the debtor was made from the debtor’s late husband’s property and not from property of the debt- or, who was merely a conduit. The trustee moved for summary judgment on the theory that the two elements in 11 U.S.C. § 547(b) which were not admit ted in the answer, were satisfied. The element of insolvency under 11 U.S.C. § 547(b)(3) was supported by the presumption of insolvency in accordance with 11 U.S.C. § 547(f). The element as to the defendant receiving more than as a Chapter 7 creditor, as stated in 11 U.S.C. § 547(b)(5), was satisfied by the fact that the defendant was paid in full while the schedules reflect that creditors will receive only a small fraction of their claims. However, the defendant cross-moved to amend her answer. Significantly, the defendant denies that she was a creditor of the debtor. Instead, she contends that the $130,000.00 payment was made by the debtor on account of a debt owed to the defendant" }, { "docid": "18675427", "title": "", "text": "section 547(b). 12.In its answer to the complaint, Venus denied that the aforesaid payments made by the Debtor to Venus were preferential but if found to be preferences, the payments are nevertheless insulated from avoidance under the provisions of sections 547(c)(2) and (c)(4). 13.Notwithstanding the alleged preferential transfers in the sum of $65,178.37, Venus filed a non-priority proof of claim as a general unsecured creditor for outstanding sums due from the Debtor in the amount of $92,722.65. Such proof of claim dated June 8,1992, was not amended nor was it objected to. Thus, if Venus had not received $65,-178.37 within the ninety days preceding Debtor’s bankruptcy, it would have been owed $157,901.02. 14. The parties have stipulated that the first four elements of section 547(b) were met, namely, (1) that the aforesaid payments are transfers made for the benefit of a creditor; (2) on account of an antecedent debt; (3) made while the debtor was insolvent; and (4) made within ninety days before the date of the filing of the petition. 15. The parties have not stipulated that Plaintiff has met the fifth element of section 547(b), i.e., that the transfers enabled Venus to receive more than it would receive if the estate were liquidated under chapter 7 and the transfers had not been made. 16.Plaintiff has conceded to Venus’ argument that the Debtor received subsequent new value for payments made during the preference period in the amount of $37,474.10 and, therefore, if Plaintiff successfully demonstrates the subject payments to be preferential transfers, $37,474.10 qualifies for exception from avoidance under section 547(c)(4). Accordingly, after offsetting the insulated amount of $37,474.10 from $65,-178.37, Plaintiff agrees that the amount of alleged preferential transfers at issue is $27,-704.27. 17.At trial, Venus was given the opportunity to supplement its evidence with respect to its section 547(c)(2)(C) defense and did submit post-trial affidavits with respect thereto. DISCUSSION Section 547(b) provides authority for a trustee to avoid and recover prepetition payments or transfers made by a debtor that prefer some creditors over others and is intended to discourage creditors “from racing to the courthouse to dismember" }, { "docid": "17979567", "title": "", "text": "proceeds into escrow, the creation of the trust itself would be a transfer probably avoidable by Alithochrome. The third element for proof of a preference is a transfer to or for the benefit of a creditor. Section 547(b)(1). The term “creditor,” as defined in Section 101(9)(A), includes an entity that has a claim against the debtor arising before the order for relief. East Coast had not only a claim but also a judgment against Alithochrome before the debtor filed for reorganization, thereby satisfying this requisite. The fourth element for proof of a preference is that the transfer was made on account of an antecedent debt. § 547(b)(2). Alithochrome asserts, and East Coast does not deny, that the transfer was made in partial satisfaction of a debt which was evidenced by a judgment against Alitho-chrome. The fifth element for proof of a preference is a showing that the debtor was insolvent at the time of the transfer § 547(b)(3). Alithochrome did not introduce evidence to support its allegation that the debtor was insolvent, relying instead on the presumption of insolvency in the 90 days before filing. Section 547(f). The presumption does not shift the burden of proof, but merely allocates to the creditor the burden of going forward. 4 Collier, Bankruptcy ¶ 547.26 at 109. Alithochrome need not present evidence of insolvency unless the defendant comes forward with some evidence to rebut the presumption. Rule 301 Federal Rules of Evidence. On a. motion for summary judgment the presumption has the same effect it would otherwise have. 6J Moore, Federal Practice, II 56.11[10] at 56-299 (2d ed. 1985). East Coast in its answer denied Alithochrome’s insolvency but failed to introduce any evidence which would rebut the presumption. A party opposing a motion for summary judgment cannot create a dispute as to a material fact asserted in an affidavit by the moving party simply by relying on a contrary allegation in a well-pleaded answer. Adickes v. S.H. Kress and Company, 398 U.S. 144, 160 at n. 20, 90 S.Ct. 1598, 1609 at n. 20, 26 L.Ed.2d 142 (1970). The very mission of the" }, { "docid": "4237599", "title": "", "text": "Metcalfs’ interest) by recovering those assets through a fraudulent transfer action under 11 U.S.C. § 548. In his § 547 preference action, however, the trustee was not representing all of the creditors’ inter ests, but rather the interests of all of the creditors other than the Metcalfs. Therefore, under the allegations of the Metcalfs’ counterclaim, the trustee was not an “opposing party” within the meaning of Rule 13 and the counterclaim was properly dismissed. II. The Motion for Summary Judgment in the Preference Action Under 11 U.S.C. § 547 the bankruptcy trustee may recover certain transfers made by the debtor within 90 days before filing for bankruptcy, if the trustee proves: (1) a transfer of an interest of the debt- or in property; (2) to or for the benefit of a creditor; (3) for or on account of an antecedent debt; (4) made while the debtor was insolvent; (5) made on or within 90 days before the date of the filing of the petition; and (6) one that enables the creditor to receive more than such creditor would receive in a Chapter 7 liquidation of the estate. In re Superior Stamp & Coin Co., Inc., 223 F.3d 1004, 1007 (9th Cir.2000) (citing 11 U.S.C. § 547(b)). Such a transfer is known as an “avoidable preference” or a “preferential transfer.” Id. at 1007-09. The “earmarking doctrine” is a court-made exception to this rule that applies when a third party advances funds to the debtor subject to an agreement requiring the debtor to use the funds to pay off another creditor. Id.; In re Sierra Steel, Inc., 96 B.R. 271, 274 (9th Cir. BAP 1989). In such circumstances, the funds are deemed earmarked” and are not considered part the debtor’s estate. Sierra Steel, 96 B.R. at 274. A. Waiver of an Earmarking Defense The trustee argues that the Metcalfs waived their earmarking defense entirely by failing to plead it as an affirmative defense in their answer to the preference action complaint. Federal Rule of Civil Procedure 8(a) and (c) provide that a defendant’s failure to raise an “affirmative defense” in his answer" }, { "docid": "1068532", "title": "", "text": "The second affirmative defense alleges that the $130,000.00 the defendant received from the debtor was made from the debtor’s late husband’s property and not from property of the debt- or, who was merely a conduit. The trustee moved for summary judgment on the theory that the two elements in 11 U.S.C. § 547(b) which were not admit ted in the answer, were satisfied. The element of insolvency under 11 U.S.C. § 547(b)(3) was supported by the presumption of insolvency in accordance with 11 U.S.C. § 547(f). The element as to the defendant receiving more than as a Chapter 7 creditor, as stated in 11 U.S.C. § 547(b)(5), was satisfied by the fact that the defendant was paid in full while the schedules reflect that creditors will receive only a small fraction of their claims. However, the defendant cross-moved to amend her answer. Significantly, the defendant denies that she was a creditor of the debtor. Instead, she contends that the $130,000.00 payment was made by the debtor on account of a debt owed to the defendant by the debtor’s late husband, Donald H. Rundlett. Thus, it is argued that there was no transfer on account of an antecedent debt owed by the debtor, as required by 11 U.S.C. § 547(b)(2). The proposed answer also asserts that the alleged payment did not involve any transfer of an interest of the debtor in property because the payments were made pursuant to a prepetition assignment of life insurance proceeds. Another affirmative defense in the proposed answer is that the transfer of $130,-000.00 by the debtor to the defendant did not diminish the estate because it was from property claimed as exempt by the debtor. Finally, an affirmative defense is asserted that the transfer was not a voidable preference because it “was a substantially contemporaneous exchange.” This point may be dismissed out of hand because 11 U.S.C. § 547(c)(1) requires that a contemporaneous exchange must be for “new value given to the debtor.” The proposed answer does not allege that the defendant gave any “new value” to the debtor, nor do any of the supporting" }, { "docid": "17979571", "title": "", "text": "value. In the Matter of Lario, 36 B.R. 582 (Bankr.D.Ohio 1983). Similarly, East Coast’s forbearance from enforcing the judgment is not new value for purposes of Section 547(c). Thus, this defense is unavailable to East Coast to defeat avoidance if Alithochrome ultimately proves that the transfer was preferential. The last defense advanced by East Coast, that Alithochrome should be es-topped from recovery because it induced East Coast to enter into the workout, merits little discussion. Although not cast in these terms, the estoppel which East Coast urges is promissory estoppel which has been described as: A promise which the promisor should reasonably expect to induce action or for-ebearance on the part of the promisee or a third person and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.... Restatement, Contracts 2d § 90 at 242 (1979). The doctrine, assuming for the sake of argument its applicability, would nonetheless be unavailing to East Coast because, in fact, Alithochrome gave the performance which it promised. Further, since absent bankruptcy there is nothing improper making payments to creditors which are avoidable as preferences only if bankruptcy ensues, 4 Collier, Bankruptcy, ¶ 547.01 (15th ed. 1985), it is not appropriate to hold that the debtor was estopped from bringing this cause of action just because it induced East Coast to accept the transfer. To so hold would be to undermine seriously the aim of equality of distribution to creditors which pervades the administration of bankruptcy. Cunard Steamship Company Limited v. Salen Reefer Services AB, 773 F.2d 452, 459 (2d Cir.1985). CONCLUSION The motion to dismiss and the motions for summary judgment are denied. Based upon the foregoing, it is clear that as a matter of law, if the transfer was a transfer of the debtor’s property, East Coast’s defenses and affirmative defenses will not save the transfer from avoidance. IT IS SO ORDERED. . The complaint alleges that the amount of the transfer was $5,550, but the parties’ motion papers consistently use $5,500. . The debtor in possession is vested by virtue of" }, { "docid": "17979569", "title": "", "text": "summary judgment motion is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. Advisory Committee Note on 1963 Amendment to subdivision (e) of Rule 56. The defendant’s general denial of insolvency in the amended answer is inadequate to rebut the plaintiffs allegation that the debtor was insolvent. Therefore, Alithochrome enjoys the benefit of the presumption and no dispute exists. See In re Emerald Oil Co. 695 F.2d 833, 838 (5th Cir.1983). The final element for proof of a preference is that the transfer enabled the creditor to receive more than it would have if the case were in Chapter 7, the transfer had not been made and the creditor had received payment to the extent provided by the Code. § 547(b)(5). Alithochrome alleged that the transfer enabled East Coast to receive more than it otherwise would in liquidation. East Coast did not deny that allegation in its answer. An allegation of the complaint which is not denied in the answer is deemed admitted. Rule 8(d), Federal Rules of Civil Procedure. Nor does the record contain any evidence to the contrary. It remains only to review two affirmative defenses which East Coast raised in its amended answer, neither of which was addressed in the parties’ motions for summary judgment. East Coast contends that, even if preferential, the transfer is exempt from avoidance because it was a contemporaneous exchange for new value. East Coast bears the burden of proving each element of the Section 547(c) defense. In re Independent Clearing House Co., 41 B.R. 985, 1014 (Bankr.D.Utah 1984). Section 547(c)(1). Under this theory, East Coast’s forbearance from enforcing its judgment constituted “new value.” But the applicable definition of “new value” specifically excludes “an obligation substituted for an existing obligation.” Section 547(a)(2). Thus, forbearance from repossessing a rented car is not new value because it does not enhance or preserve the value of the estate, In re Duffy, 3 B.R. 263, 1 C.B.C. 641 (Bankr.S.D.N.Y.1980), and a lessor’s forbearance from exercising its rights under a lease does not constitute new" }, { "docid": "13341530", "title": "", "text": "preference pursuant to 11 U.S.C. § 547. The Defendant filed an Answer denying the allegation, and after discovery was completed the Defendant filed a Motion for Summary Judgment. LAW Section 547(b) of the Bankruptcy Code provides in pertinent part: (b) 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 account 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 DISCUSSION The only matter in dispute in this action concerns the fifth element of § 547(b) which deems a prepetition transfer preferential if such a transfer enables the creditor to receive more than it would have if, (1) the case were a case under Chapter 7, (2) the transfer had not been made, and (3) the creditor received only the distribution to which the creditor would have been entitled to receive in the liquidation case. § 547(b)(5); see In re Finn, 86 B.R. 902, 904 (Bankr.E.D.Mich.1988), order aff'd, 111 B.R. 123 (E.D.Mich.1989) judgment rev’d on other grounds, 909 F.2d 903 (6th Cir.1990). A simpler way of putting this is to ask whether the transferee would receive more, as a result of the prepet-ition transfer, than it otherwise would have in a hypothetical Chapter 7 distribution. Proceedings to determine, avoid, or recover preferences are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(F). Thus, this case is a core proceeding. This matter comes before the Court" }, { "docid": "17979559", "title": "", "text": "rights without justification to the detriment of its creditors. Although equity will not aid a party whose application is destitute of reasonable diligence, Mackall v. Casilear, 137 U.S. 556, 566, 11 S.Ct. 178, 181, 34 L.Ed. 776 (1890), there has been no showing here that such diligence is lacking. Accordingly, the motion is denied. II. The trustee or debtor in possession bears the burden of proving by a preponderance of the evidence each element of the asserted preference. In re Casco Electric Corp., 28 B.R. 191, 195 (Bankr.E.D.N.Y.1983); In re Vasu Fabrics, Inc., 39 B.R. 513, 515 (Bankr.S.D.N.Y.1984); Section 547(g). Those elements are set forth in Section 547(b), which reads as follows: (b) Except as provided in subsection (c) of this section, the trustee may void any transfer of property of the debt- or— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owned 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 petition; or (B) between 90 days and one year before the date of filing of the petition, if such creditor, at the time of such transfer (i) was an insider; and (ii) had reasonable cause to believe the debtor was insolvent at the time of such transfer; 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. The central inquiry in this case is whether the interest transferred to East Coast was indeed property of the debtor. East Coast argues that Alithochrome created an express trust for the benefit of its creditors, transferring all but bare legal title to the Press to its creditors on July 31, 1981 and that East Coast became a beneficiary on November 19, 1981, outside the ninety day preference" }, { "docid": "4384426", "title": "", "text": "a trust created during the ninety day preference period, citing to Alithochrome Corp. v. East Coast Finishing Sales Corp. (In re Alithochrome Corp.), 53 B.R. 906 (Bankr.S.D.N.Y.1985) and Torres v. Eastlick (In re North American Coin & Currency Ltd.), 767 F.2d 1573, 1576, n. 2 (9th Cir.1985), amended by 774 F.2d 1390 (9th Cir.1985). In considering these decisions, the court found them distinguishable, in that \"the trusts were either created from the debtor’s property or the court found that no trust had been created.” In re Trans-End Technology, Inc., 228 B.R. at 184. In contrast, the funds in question in Trans-End were paid by Ford [the project owner] to the debtor and therefore \"[t]he trust arising in this case did not arise out of the debtor’s funds.” Id. As this Court has determined that an express trust was created in March 2001 by the execution of the Escrow Agreement and the Subcontract, the court need not rely on this authority to resolve the instant matter. . Section 547(b) provides: [T]he 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 account 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 90 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. § 547(b) (2001). . First by permitting the trustee to avoid prebankruptcy transfers that occur within a short period before bankruptcy, creditors are discouraged from racing to the courthouse to dismember the" }, { "docid": "16531072", "title": "", "text": "to defendants East Beach, Enterprises, P. Johnson and Lee. He contends that those transfers are avoidable under 11 U.S.C. § 547(b) and that he is entitled to recover the amount of each transfer pursuant to 11 U.S.C. § 550(a). Section 547(b) describes the elements of a preferential transfer: 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 account 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. § 547(b). The trustee has the burden of proving all five elements of the preferential transfer. 11 U.S.C. § 547(g); Murphy v. Nunes (In re Terrific Seafoods, Inc.), 197 B.R. 724, 730-31 (Bankr.D.Mass.1996). At trial, the Trustee failed to produce any evidence, as required by § 547(b)(5), that the Defendants received more by virtue of the alleged preferential transfers than they would have under an equal distribution to all creditors with similar legal status. He contended that the Summary of Schedules shows an estimated $21 million in secured creditors’ claims against the Debtors as of the Petition Date and cited evidence that on March 10, 1998, the Debtor Corporations’ bank, Coast Business Credit, foreclosed on all of their assets. The Trustee also argued that if the Debtor Corporations had no assets and there were approximately $21 million in claims after the Petition Date, the" }, { "docid": "13648268", "title": "", "text": "overdue and not contingent on success. Therefore, I will address this motion only insofar as it concerns that $50,000.00. The Trustee contends that the payment satisfies the requirements of his case in chief under § 547(b) and that it does not qualify for either of the affirmative defenses that Oppenheimer has invoked. Although Oppenheimer’s answer puts the Trustee to his proof as to most of the operative allegations of the Trustee’s case under § 547(b), Oppenheimer opposes the motion for summary judgment primarily on the strength of its affirmative defenses and, except on the requirement of an antecedent debt, § 547(b)(2), offers no defense as to the elements of § 547(b). a. Elements of § 547(b) The Trustee must establish that there is no genuine issue of material facts as to the each element of his case in chief under § 547(b), of which there are six: that 1. the debtor made a transfer of an interest of the debtor in property, 2. on or within 90 days before the date of the filing of the petition 3. and while the debtor was insolvent, 4. to or for the benefit of a creditor and 5. for or on account of an antecedent debt owed by the debtor before such transfer was made, 6. which transfer enables the creditor to receive more than the creditor would receive if— (A) the case were a case under chapter 7 of the Bankruptcy Code, (B) the transfer had not been made, and (C) such creditor received payment of such debt to the extent provided by the provisions of the Bankruptcy Code. 11 U.S.C. § 547(b). Oppenheimer admitted the first in its Answer: the Debtor made a transfer of $350,000 of its funds to Oppenheimer. The evidence is uncontro-verted as to the second: the transfer was made between September 10 and September 22, 1997, on a date within 90 days before December 2, 1997, the date of the filing of the petition. The third is established by virtue of the statutory presumption of insolvency during the 90 days immediately preceding the bankruptcy filing, 11 U.S.C." }, { "docid": "1077365", "title": "", "text": "20,590.11 May 30 $ 18,420.07 $ 23,056.79 June 6 $ 18,922.37 $ 17,436.51 June 13 $ 23,479.03 $ 15,967.54 June 20 $ 17,127.20 $113,566.47 July 22 TOTALS: $163,267.24 $276,008.47 The right column indicates the value of goods supplied between the dates of each check. In response to Trustee’s interrogatory, Creditor admitted that $90,372.07 of goods shipped after April 25 remained unpaid. Trustee seeks recovery of $72,895.17, asserting preferential transfers of $163,-267.24 and admitting a § 547(c)(4) defense of $90,372.07. Creditor asserts a complete new value defense under § 547(c)(4). Alternatively, Creditor asserts defenses under Code § 547(e)(1), a transfer for a contemporaneous exchange of new value, and Code § 547(c)(2), a transfer in the ordinary course of business. DISCUSSION Federal Rule of Bankruptcy Procedure 7056 makes Federal Rule of Civil Procedure 56 applicable in bankruptcy cases. The latter rule provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Trustee bears the burden of establishing the five elements of a § 547(b) preference: (1) the debtor made a trans- fer to a creditor; (2) for an antecedent debt; (3) while the debtor was insolvent; (4) during the 90 days before the petition; (5) allowing the creditor to receive more than it would under a Chapter 7 liquidation. Trustee has established the five § 547(b) elements. No issue was raised with respect to elements (1), (2), and (4). Element (5) was satisfied because any payment to a general unsecured creditor during the preference period necessarily favors that creditor if a Chapter 7 liquidation would yield less than a 100 percent distribution. In re Lewis Shurtleff, Inc., 778" }, { "docid": "10244021", "title": "", "text": "7 case;’ i.e., to determine what the creditor would have received in a liquidation.” Still v. Rossville Bank (In re Chattanooga Wholesale Antiques, Inc.), 930 F.2d 458, 464 (6th Cir.1991). Unless the estate is sufficient to provide a 100% distribution, any unsecured creditor ... who receives a payment during the preference period is in a position to receive more than it would have received under a chapter 7 liquidation. Id. at 465. Thus, the court must undertake a two-part test. First, the court must determine what the creditor receives if the transfer is not avoided. Second, the court must determine what the creditor would have received in a liquidation case if the transfer had not been made. Citra filed a proof of claim in the unsecured amount of $33,583.25. The undisputed facts establish that Citra received $11,000 within the preference period. Liquidation of the debtor’s assets in a chapter 7 would only pay an estimated twenty percent of the claims of unsecured creditors exclusive of preference recoveries. Thus, if the transfers are not avoided Citra would receive $11,000 plus 20% of $33,583.25 (or $6,716.65). If the transfer had not occurred Citra would only receive 20% of $33,583.25, or $6716.65. Therefore, Citra has received more than if the case were a ease under chapter 7 of this title; the transfer had not been made; and such creditor received payment of such debt to the extent provided by the provision of this title. Consequently, the Trustee has sufficiently established that the requirements for subsection § 547(b)(5). Based upon the foregoing, the court concludes that the Trustee has established all the elements under § 547(b) to establish a preference. Significantly, despite being afforded several opportunities, Citra has failed to set forth any defense to the Trustee’s complaint under § 547(c). As previously stated, Citra failed to raise any defense in its answer or in its supplemental answer (Doc. 13-1). Furthermore, Citra did not assert any defense in its response to the Trustee’s motion for summary judgment nor did it file any motion seeking additional opportunities to file any defenses. Notably, an order was" }, { "docid": "16543854", "title": "", "text": "any, would attach to the proceeds of the sale. II Pursuant to Fed.R.Civ.P. 56(c), made applicable to this adversary proceeding through Fed. R. Bankr.P. 7056, summary judgment is available only when a party is entitled to a judgment as a matter of law and when, after consideration of the evidence presented by the pleadings, affidavits, answers to interrogatories, and depositions in a light most favorable to the nonmoving party, there remain no genuine issues of material fact. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The factual dispute must be genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir.1989). III The single issue to be resolved by the court, as set forth in the February 5, 1997 Pretrial Order, is “[wjhether the Defendant’s interests in the estate’s two 1995 Isuzu Troopers, or proceeds therefrom, are avoidable by the [TJrustee pursuant to 11 U.S.C. §§ 547(b) and 550.” Bankruptcy Code § 547(b) provides in material part: 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 account 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; [] (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.A. § 547(b) (West 1993). The Defendant does not contest the foregoing elements of the Trustee’s claim. However, because these elements have not been stipulated, the court deems it necessary to hold the Trustee to his" }, { "docid": "17979566", "title": "", "text": "judgment must be denied. Rule 56(d) of the Federal Rules of Civil Procedure (“F.R.G.P.”) mandates that upon denial of all or a part of a motion for summary judgment, the court shall if practicable ascertain what material facts exist without substantial controversy and shall make an order specifying such facts. Thus, we turn to the balance of the elements necessary to prove a preference and the defenses alleged by East Coast. The second element for a preference is that the transfer occurred during the ninety day period before filing. Section 547(b)(4)(A). Determination of this element is bound up with a determination of whether the agreement created a mere security interest or a trust, for if the former were created, a transfer of the debtor’s property would have occurred when the check was tendered or paid, well within the preference period. If a trust were created outside the preference period, no transfer of the debt- or’s property would have occurred at all. And if a trust were created during the preference period, by delivery of the proceeds into escrow, the creation of the trust itself would be a transfer probably avoidable by Alithochrome. The third element for proof of a preference is a transfer to or for the benefit of a creditor. Section 547(b)(1). The term “creditor,” as defined in Section 101(9)(A), includes an entity that has a claim against the debtor arising before the order for relief. East Coast had not only a claim but also a judgment against Alithochrome before the debtor filed for reorganization, thereby satisfying this requisite. The fourth element for proof of a preference is that the transfer was made on account of an antecedent debt. § 547(b)(2). Alithochrome asserts, and East Coast does not deny, that the transfer was made in partial satisfaction of a debt which was evidenced by a judgment against Alitho-chrome. The fifth element for proof of a preference is a showing that the debtor was insolvent at the time of the transfer § 547(b)(3). Alithochrome did not introduce evidence to support its allegation that the debtor was insolvent, relying instead on" }, { "docid": "17979555", "title": "", "text": "the Company seeks the protection of any federal reorganization or bankruptcy statute or involuntarily becomes subject to any federal reorganization or bankruptcy statute; provided, however, that our security interest in the proceeds of the sale of the Press, as described in Paragraph 3 above, shall survive cancellation of this Agreement and shall be valid and enforceable to the extent allowed by law.” Alithochrome asserts, and East Coast does not deny, that the Press was sold in early December 1981 and the proceeds deposited in Alithochrome’s bank account. On December 10, 1981 Alithochrome wrote East Coast a check for $5,550 in keeping with the terms of the Agreement. It is this payment which Alithochrome now seeks to recover. East Coast raised four separate defenses in its amended answer: first, that Alitho-chrome is estopped from avoiding the transfer because Alithochrome induced East Coast to enter into the Agreement; second, that the transfer was a contemporaneous exchange for new value and is therefore exempt from avoidance by Section 547(c)(1); third, that the transfer was made from a trust created outside the statutory period; and fourth, that the proceeding is time barred by the statute of limitations found in Section 546(a)(1) of the Code. I. East Coast moves for judgment on the pleadings pursuant to Rule 12(c) on the grounds that the proceedings are time barred. East Coast maintains that Alitho-chrome’s preference action is barred either by the two year statute of limitations contained in Section 546(a) or by the equitable doctrine of laches. Neither argument has merit. Section 546(a) states that a trustee may not commence an action to avoid a preferential transfer more than two years after the appointment of a trustee. Whereas section 1107(a) gives the debtor in possession in a Chapter 11 case the same power of avoidance as a trustee and whereas more than two years concededly elapsed between the time Alithochrome sought the protection of the court and the date it initiated this preference action, Alithochrome properly argues that that two year statute of limitations does not apply to preference actions brought by a Chapter 11 debtor in" }, { "docid": "17979570", "title": "", "text": "admitted. Rule 8(d), Federal Rules of Civil Procedure. Nor does the record contain any evidence to the contrary. It remains only to review two affirmative defenses which East Coast raised in its amended answer, neither of which was addressed in the parties’ motions for summary judgment. East Coast contends that, even if preferential, the transfer is exempt from avoidance because it was a contemporaneous exchange for new value. East Coast bears the burden of proving each element of the Section 547(c) defense. In re Independent Clearing House Co., 41 B.R. 985, 1014 (Bankr.D.Utah 1984). Section 547(c)(1). Under this theory, East Coast’s forbearance from enforcing its judgment constituted “new value.” But the applicable definition of “new value” specifically excludes “an obligation substituted for an existing obligation.” Section 547(a)(2). Thus, forbearance from repossessing a rented car is not new value because it does not enhance or preserve the value of the estate, In re Duffy, 3 B.R. 263, 1 C.B.C. 641 (Bankr.S.D.N.Y.1980), and a lessor’s forbearance from exercising its rights under a lease does not constitute new value. In the Matter of Lario, 36 B.R. 582 (Bankr.D.Ohio 1983). Similarly, East Coast’s forbearance from enforcing the judgment is not new value for purposes of Section 547(c). Thus, this defense is unavailable to East Coast to defeat avoidance if Alithochrome ultimately proves that the transfer was preferential. The last defense advanced by East Coast, that Alithochrome should be es-topped from recovery because it induced East Coast to enter into the workout, merits little discussion. Although not cast in these terms, the estoppel which East Coast urges is promissory estoppel which has been described as: A promise which the promisor should reasonably expect to induce action or for-ebearance on the part of the promisee or a third person and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.... Restatement, Contracts 2d § 90 at 242 (1979). The doctrine, assuming for the sake of argument its applicability, would nonetheless be unavailing to East Coast because, in fact, Alithochrome gave the performance which it promised. Further," }, { "docid": "17979560", "title": "", "text": "days before the date of the filing of petition; or (B) between 90 days and one year before the date of filing of the petition, if such creditor, at the time of such transfer (i) was an insider; and (ii) had reasonable cause to believe the debtor was insolvent at the time of such transfer; 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. The central inquiry in this case is whether the interest transferred to East Coast was indeed property of the debtor. East Coast argues that Alithochrome created an express trust for the benefit of its creditors, transferring all but bare legal title to the Press to its creditors on July 31, 1981 and that East Coast became a beneficiary on November 19, 1981, outside the ninety day preference period. The import is that even though the check was written within the ninety day period, since the proceeds were no longer the property of the debtor, payment therefrom was not preferential. The debtor’s estate consists of all of the legal and equitable interests in property which the debtor had as of the commencement of the case. Section 541(a). When the debtor holds only legal title, the estate does not acquire any equitable interest in property. Section 541(d); 4 Collier, Bankruptcy ¶ 541 (15th ed. 1980). Hence, had East Coast proven, which it has not, that the proceeds were actually placed in trust outside of the statutory period, Ali-thochrome’s action would have to fail. The essential relationship between Alithochrome and East Coast is that of debtor and creditor. Although debtor and creditor may effect a novation to discharge the debt and create a trust, Restatement (Second) Trusts § 12 comment n. at 42 (1959), a debt is not a trust, id. § 12. The four essential elements of a valid trust of personal property are:" } ]

[ { "docid": "18754120", "title": "", "text": "describe those proceedings that involve a. cause of action created or determined by a statutory provision of title ll. Apparently, the phrase was taken from 28 U.S.C. § 1331, conferring federal question jurisdiction in which it carries a similar and well-accepted meaning. The meaning of “arising in” proceedings is less clear, but seems to be a reference to those “administrative” matters that arise only in bankruptcy cases. In other words, “arising in” proceedings are those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy. As defined above, the phrases “arising under” and “arising in” are helpful indicators of the meaning of core proceedings. If the proceeding involves a right created by the federal bankruptcy law, it is a core proceeding; for example, an action by the trustee to avoid a preference. If the proceeding is one that would arise only in bankruptcy, it is also a core proceeding; for example, the filing of a proof of claim or an objection to the discharge of a particular debt. If the proceeding does not invoke a substantive right created by the federal bankruptcy law and is one that could exist outside of bankruptcy it is not a core proceeding; it may be related to the bankruptcy because of its potential effect, but under section 157(c)(1) it is an “otherwise related” or non-core proceeding. Finally, the interpretation of core proceeding based on its equation with “arising under” and “arising in” proceedings comports with the interpretation suggested by Marathon. Justice Brennan’s description of “core” matters parallels that of matters “arising under” title 11—matters invoking a substantive right created by federal bankruptcy law. Moreover, his comment that the matter could have proceeded absent the bankruptcy suggests a contrast with “arising in” proceedings—matters that could arise only in bankruptcy. We hold, therefore, that a proceeding is core under section 157 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. The proceeding before" } ]

[ { "docid": "10890495", "title": "", "text": "itself.” Id. at 225-26 n. 38 (quotation and citation omitted). A case “arises under” title 11 “if it invokes a substantive right provided by title 11.” Torkelsen v. Maggio (In re Guild & Gallery Plus, Inc.), 72 F.3d 1171, 1178 (3d Cir.1996). Bankruptcy “arising under” jurisdiction is analogous to 28 U.S.C. § 1331, which provides for original jurisdiction in district courts “of all civil actions arising under the Constitution, laws, or treaties of the United States.” 1 Collier on Bankruptcy § 3.01[4][c][i] at 3-21-22 (15th ed. rev.2005); see also Wood v. Wood (Matter of Wood), 825 F.2d 90, 96-97 (5th Cir.1987). The category of proceedings “arising in” bankruptcy cases “includes such things as administrative matters, orders to turn over property of the estate and determinations of the validity, extent, or priority of liens.” 1 Collier on Bankruptcy § 3.01[4][c][iv] at 3-31 (quotations and footnotes omitted). Proceedings “arise in” a bankruptcy case, “if they have no existence outside of the bankruptcy.” United States Trustee v. Gryphon at the Stone Mansion, Inc., 166 F.3d 552, 556 (3d Cir.1999). Finally, a proceeding is “related to” a bankruptcy case if “the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” In re Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984); see also In re Federal-Mogul Global, Inc., 300 F.3d 368, 381 (3d Cir.2002) (noting that Pacor “clearly remains good law in this circuit” in this respect). The question presented here is whether Stoe’s claim “arises under” title 11, “arises in” a bankruptcy case, or is merely “related to” a bankruptcy case. This is equivalent to the question whether Stoe’s claim is a “core” proceeding or a “non-core” proceeding within the meaning of 28 U.S.C. § 157. In re Combustion Eng’g, Inc., 391 F.3d at 225 (“Cases under title 11, proceedings arising under title 11, and proceedings arising in a case under title 11 are referred to as ‘core’ proceedings; whereas proceedings ‘related to’ a case under title 11 are referred to as ‘non-core’ proceedings.”). The defendants insist that Stoe’s claim both “arises under” the Bankruptcy" }, { "docid": "17694887", "title": "", "text": "those differences are not being considered for purposes of these motions to dismiss for lack of subject matter jurisdiction. To the extent the facts of each individual case of the named plaintiff might impact on the broad ruling in this order, those facts will be considered at another time. The defendants have filed motions to dismiss their adversary proceedings under Fed. R. Bankr.P. 7012. For purposes of this ruling, the Court assumes that all of the plaintiffs’ allegations, other than jurisdiction, are true. Rainwater v. State of Alabama (In re Rainwater), 233 B.R. 126, 140 (Bankr.N.D.Ala.1999). The defendants allege that, as to all of the class action suits, this Court and the district court have no subject matter jurisdiction except as to the named plaintiffs. The Court disagrees and concludes that it and the district court have subject matter jurisdiction over the potential class members’ lawsuits and concludes that the bankruptcy court’s jurisdiction is core. I. A. The jurisdiction of the district courts (from which the bankruptcy court’s jurisdiction is derivative) over bankruptcy matters is established in 28 U.S.C. § 1334. Continental Nat. Bank of Miami v. Sanchez (In re Toledo), 170 F.3d 1340, 1344 (11th Cir.1999). Section 1334(b) states in part: “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Generally, “ ‘[ajrising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code.” Toledo, 170 F.3d at 1345 (cites omitted). “[A]rising in” proceedings involve “administrative-type matters, or ... ‘matters that could arise only in bankruptcy.’ ” Id. The plain meaning of the words used in the statute gives a district court jurisdiction over suits such as these in which the issues relate only to federally created bankruptcy law. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (plain meaning of legislation is conclusive except in rare cases) (cite omitted). These class actions clearly fit within the plain language of the “arising under” or “arising in” jurisdictional categories. All" }, { "docid": "20991026", "title": "", "text": "least 5,214 individuals to sign up for his program. His victims signed up under the belief that they would be represented by an attorney, Nelms, and that he would negotiate a settlement with their creditors (usually credit card companies). McCallan instructed these individuals to stop paying on their debts directly, and induced them into transferring a portion of their income to entities controlled by him, with the promise that their debts would be taken care of. They were not. Virtually all of the money paid by Allegro customers toward the goal of debt settlement was siphoned off by McCallan and those in league with him. The Court finds that AmeriCorp, Seton, and McCallan defrauded their victims out of $102,949,220.72. II. CONCLUSIONS OF LAW The Court will divide its Conclusions of Law into three parts. In Part A, the Court will consider its jurisdiction and adjudicatory power. In Part B, the Court will discuss the Defendants’ motion to re-cuse the undersigned. In Part C, the Court will consider whether default judgment is appropriate. A. Jurisdiction & Adjudicatory Power 1. Jurisdiction A district court has original jurisdiction over “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(b). A district court may refer all such cases to the bankruptcy judges for the district, 28 U.S.C. § 157(a), and the District Court for the Middle District of Alabama has done so. See General Order of Reference— Bankruptcy Matters (M.D. Apr. 25, 1985). “ ‘Arising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code.” Continental Nat’l Bank of Miami v. Sanchez (In re Toledo), 170 F.3d 1340, 1345 (11th Cir.1999). A proceeding is “related to” a bankruptcy case when “‘the outcome of the proceeding could conceivably have an effect on the estate being administered in bankruptcy.’ ” Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784, 788 (11th Cir.1990) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)). “ ‘An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities," }, { "docid": "20262099", "title": "", "text": "the District of Delaware would be more efficient. The bankruptcy jurisdiction and venue statutes provide that “[a] district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties.” 28 U.S.C. § 1412. First, if characterized as an attempt to enforce the Confirmation Order’s discharge injunction, Debtors’ complaint initiated a “proceeding under title 11,” 28 U.S.C. § 1412, that triggered the Florida Bankruptcy Court’s statutory transfer power, see Cont’l Nat’l Bank of Miami v. Sanchez (In re Toledo), 170 F.3d 1340, 1345 (11th Cir.1999) (“ ‘Arising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code.” (citing Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir.1987))); see also 28 U.S.C. § 1334(b) (giving the district courts original jurisdiction “of all civil proceedings arising under title 11”); Ins. Co. of N. Am. v. NGC Settlement Trust & Asbestos Claims Mgmt. Corp. (In re Nat’l Gypsum Co.), 118 F.3d 1056, 1063-64 (5th Cir.1997) (“[An] action to enforce the discharge injunction ... is a federal cause of action, asserting a statutory right under the Bankruptcy Code.”). Thus, § 1412’s case-or-proceeding prerequisite is satisfied. Second, although courts cite myriad factors in determining whether to transfer a case under § 1412 “in the inter est of justice,” we think no factors favor transfer more heavily here than that (1) the transferor forum has no power to adjudicate Debtors’ claim for relief and (2) the transferee forum is the only court with jurisdiction to provide the relief Debtors seek. If the case is transferred to the United States District Court for the District of Delaware, that court may refer it to the Delaware Bankruptcy Court pursuant to that District Court’s procedures. See 28 U.S.C. § 157(a) (“Each district court may provide that any or all ... proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district.”). Accordingly, we shall vacate the District Court’s judgment and remand" }, { "docid": "17694888", "title": "", "text": "established in 28 U.S.C. § 1334. Continental Nat. Bank of Miami v. Sanchez (In re Toledo), 170 F.3d 1340, 1344 (11th Cir.1999). Section 1334(b) states in part: “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Generally, “ ‘[ajrising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code.” Toledo, 170 F.3d at 1345 (cites omitted). “[A]rising in” proceedings involve “administrative-type matters, or ... ‘matters that could arise only in bankruptcy.’ ” Id. The plain meaning of the words used in the statute gives a district court jurisdiction over suits such as these in which the issues relate only to federally created bankruptcy law. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (plain meaning of legislation is conclusive except in rare cases) (cite omitted). These class actions clearly fit within the plain language of the “arising under” or “arising in” jurisdictional categories. All of the debtors’ claims will be determined from the statutory provisions of the Bankruptcy Code. This reading is consistent with the legislative history to the Bankruptcy Code. H.R.Rep. No. 595, 95th Cong., 1st Sess. 445 (1977), U.S.Code & Cong. & Admin. News pp. 5963, 6401 (“The phrase ‘arising under’ has a ... broad meaning in the jurisdictional context”). Section 1334(b) was intended to give broad jurisdiction to the district courts over bankruptcy matters. Id. (“Subsection (b) is the broadest grant of jurisdiction to dispose of proceedings that arise in bankruptcy cases or under the bankruptcy code. Actions that formerly had to be tried in State court or in Federal district court, at great cost and delay to the estate, may now be tried in the bankruptcy courts.”). The Bankruptcy Code, unlike its predecessor, the Bankruptcy Act, gives the district courts in personam as well as in rem jurisdiction. Id. A court no longer is restricted to dealing only with assets under its control; it also has the ability to deal with other matters affecting debtors." }, { "docid": "10787136", "title": "", "text": "title 11. See, e.g., In re Combustion Eng’g, Inc., 391 F.3d 190, 225 (3d Cir.2004). All matters that a bankruptcy court may hear, other than the bankruptcy case itself, fall into two (2) categories: (1) “core proceedings” arising under or arising in title 11 or cases under title 11; and (2) “non- core proceedings” that are otherwise “related to” a case under title 11. See 28 U.S.C. § 157(b), (c); Mullarkey, 536 F.3d at 221. Generally speaking, the matters designated as “core” correspond to the “arising in” and “arising under” jurisdictional grant and non-core matters correspond to the “related to” jurisdictional grant in 28 U.S.C. § 1334(b). Id. Further, one can conceptualize core matters as a subset of the matters that are “related to” the bankruptcy case. [Ejvery core proceeding necessarily is also “related to” the bankruptcy case for purposes of 28 U.S.C. 1334(b). One might say that every core proceeding is related, but not every related proceeding is core and that a matter must at least be related to the bankruptcy for the bankruptcy court to exercise any type of subject matter jurisdiction. In re Universal Mktg., Inc., 459 B.R. 573, 579 (Bankr.E.D.Pa.2011). Thus, the ultimate jurisdictional question presented in this dispute is whether Debtor’s claim for relief is, at minimum, “related to” this bankruptcy case. In the seminal case, Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (emphasis in original) (citations omitted), the Court of Appeals stated: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.... An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Under Pacor, most questions involving the scope of the court’s “related to” jurisdiction are determined by focusing on the effect that resolution of the dispute may or may not have on the bankruptcy estate. See," }, { "docid": "20991027", "title": "", "text": "Adjudicatory Power 1. Jurisdiction A district court has original jurisdiction over “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(b). A district court may refer all such cases to the bankruptcy judges for the district, 28 U.S.C. § 157(a), and the District Court for the Middle District of Alabama has done so. See General Order of Reference— Bankruptcy Matters (M.D. Apr. 25, 1985). “ ‘Arising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code.” Continental Nat’l Bank of Miami v. Sanchez (In re Toledo), 170 F.3d 1340, 1345 (11th Cir.1999). A proceeding is “related to” a bankruptcy case when “‘the outcome of the proceeding could conceivably have an effect on the estate being administered in bankruptcy.’ ” Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784, 788 (11th Cir.1990) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)). “ ‘An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.’” Id. (quoting Pacor, 743 F.2d at 994). Counts II, III, and IV (avoidance of preferences, post-petition transfers, and fraudulent transfers) of Hamm’s amended complaint invoke substantive rights created by the Bankruptcy Code and are thus “arising under” proceedings. In its decision affirming this Court’s denial of arbitration, the District Court ruled that Counts I and V (turnover and accounting) are more properly characterized as breach-of-contract claims. McCallan v. Hamm, 2012 WL 1392960, *5, 2012 U.S. Dist. LEXIS 56907, *15 (M.D.Ala. Apr. 23, 2012). These claims could still conceivably have an effect on the Allegro bankruptcy estate and therefore are “related to” proceedings. The Court has jurisdiction under 28 U.S.C. § 1334(b) on all five counts of Hamm’s amended complaint. 2. Adjudicatory Power Absent consent of the parties, a bankruptcy court may not enter final judgment in non-core proceedings. 28 U.S.C. § 157(c)(1); see also N. Pipeline Constr. Co. v. Marathon Pipe" }, { "docid": "13198872", "title": "", "text": "proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(b). Jurisdiction of the full array of bankruptcy cases may be referred to the bankruptcy court. Id. § 157(a). To satisfy constitutional limitations on the subject matter jurisdiction of the Article I bankruptcy courts, bankruptcy jurisdiction is divided into “core” and “non-core” jurisdiction. See 28 U.S.C. § 157; N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 84, 87, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality op.); id. at 91-92, 102 S.Ct. 2858 (Rehnquist, J., concurring in the judgment); Mt. McKinley Ins. Co. v. Corning, Inc., 399 F.3d 436, 447-48 (2d Cir.2005). A bankruptcy court may “hear and enter final judgments in” all “core” proceedings. Stern v. Marshall, - U.S. -, 131 S.Ct. 2594, 2603, 180 L.Ed.2d 475 (2011). In a non-core case, a bankruptcy court “may only” submit proposed findings of fact and conclusions of law to the district court, which may enter final judgment “after reviewing de novo any matter to which a party objects.” Id. at 2604, 131 S.Ct. 2594; see 28 U.S.C. § 157(c)(1). Core claims are those proceedings “arising under title 11” and proceedings that “arise in” cases under title 11. 28 U.S.C. § 157(a)-(b); In re Ames Dep’t Stores Inc., No. 06 Civ. 5394, 2008 WL 7542200, at *4 (S.D.N.Y. June 4, 2008). Cases “arise under” title 11 when the cause of action or substantive right claimed is created by the Bankruptcy Code. MBNA Am. Bank, N.A. v. Hill, 436 F.3d 104, 108-09 (2d Cir.2006); see In re Housecraft Indus. USA, Inc., 310 F.3d 64, 70 (2d Cir.2002). Cases “arise in” a title 11 proceeding if they “are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy.” Baker v. Simpson, 613 F.3d 346, 351 (2d Cir.2010) (per curiam) (quoting In re Wood, 825 F.2d 90, 97 (5th Cir.1987)) (internal quotation marks and alteration omitted). Thus, a claim that is “an essential part of administering the estate” implicates the Bankruptcy Court’s core" }, { "docid": "21021077", "title": "", "text": "case under the Code. “ ‘Arising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code. The ‘arising in a case under’ category is generally thought to involve administrative-type matters, or as the ... court put it, ‘matters that could arise only in bankruptcy.’ ” In re Toledo, 170 F.3d 1340, 1345 (11th Cir.1999) (citations omitted). We have stated, “The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have an effect on the estate being administered in bankruptcy.” Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784, 788 (11th Cir.1990). While Carter’s action against Defendants arose after the date of the bankruptcy petition, his suit turns solely on allegations of wrongdoing in the sale of property belonging to the bankruptcy estate. Any recovery would reduce the administrative expenses of the sale of the estate property and would perforce increase the amount of estate property available to satisfy creditors’ claims. See 11 U.S.C. § 541(a)(7); see, e.g., McGuirl v. White, 86 F.3d 1232 (D.C.Cir.1996). Thus, the outcome of this case will impact Carter’s bankruptcy estate. Further, Carter sued the trustee and other court approved officers of his bankruptcy estate for alleged breaches of their bankruptcy-related duties. The Bankruptcy Code establishes the office of trustee and defines the trustees’ duties. Moreover, an action against a bankruptcy trustee for breach of bankruptcy-related fiduciary duty can only arise in a bankruptcy case. Thus, Carter’s “fiduciary claims against [the fiduciaries] are within the bankruptcy jurisdiction defined by 28 U.S.C. § 1334(b) both as ‘arising under’ the Code and ‘arising in’ a bankruptcy case.” Schechter v. Illinois (In re Markos Gurnee Partnership), 182 B.R. 211, 222 (Bankr.N.D.Ill.1995); see In re Toledo, 170 F.3d 1340, 1345 (11th Cir.1999). D. The Section 959 Exception Finally, Carter asserts that he should be permitted to file his lawsuit in the district court without first obtaining leave from the bankruptcy court pursuant to section 959’s statutory exception to the Barton doctrine. Section 959 provides for a limited exception to" }, { "docid": "20190003", "title": "", "text": "833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (same). 2. The bankruptcy court and the district court both concluded that this case was a core proceeding under 28 U.S.C. § 157(b)(2)(A) (“matters concerning the administration of the estate”). Both the district court and the bankruptcy court read this section too broadly. Our circuit precedents have “held that a proceeding is core under section 157 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.” In re Marcus Hook Dev. Park Inc., 943 F.2d 261, 267 (3d Cir.1991) (citations and internal quotation marks omitted). In support of its ruling that this case was a core proceeding, the bankruptcy court relied, inter alia, on the decision of the Court of Appeals for the Fifth Circuit in In re Wood, 825 F.2d 90 (5th Cir.1987), which observed that the phrases “arising under” and “arising in” are helpful indicators of the meaning of core proceedings. If the proceeding involves a right created by the federal bankruptcy law, it is a core proceeding; for example, an action by the trustee to avoid a preference. If the proceeding is one that would arise only in bankruptcy, it is also a core proceeding; for example, the filing of a proof of claim or an objection to the discharge of a particular debt. If the proceeding does not invoke a substantive right created by the federal bankruptcy law and is one that could exist outside of bankruptcy it is not a core proceeding; it may be related to the bankruptcy because of its potential effect, but under section 157(c)(1) it is an “otherwise related” or non-core proceeding. Id. at 97. We conclude, however, that applying this standard to the present matter warrants a result contrary to that reached by the bankruptcy court. The claims that Torkelsen raises against the trustee need not “arise only in bankruptcy.” Torkelsen’s state law claims are not comparable to the filing of a proof of claim or raising an objection to a discharge" }, { "docid": "8899885", "title": "", "text": "United States that IRS receive more from a third party (First Texas) than is actually due from the Debtor tax payers themselves.” Consequently, although the Bank frames its request as a request for relief from the order on the IRS’s claim, based on the excusable neglect of Debtors’ counsel, the dispute essentially involves the existence and amount of the tax lien on the property in Texas. The Court determines that it lacks subject matter jurisdiction over this proceeding. The jurisdiction of Bankruptcy Courts is set forth in 28 U.S.C. §§ 1334 and 157. 28 USC § 1334. Bankruptcy cases and proceedings (a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11. (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. “This provision creates jurisdiction in three categories of proceedings: those that ‘arise under title 11,’ those that ‘arise in cases under title 11,’ and those ‘related to cases under title 11.’ The bankruptcy court’s jurisdiction is derivative of and dependent upon these three bases.” In re Toledo, 170 F.3d 1340, 1344 (11th Cir.1999). The Bank’s request for cancellation or modification of the tax hen is not based on a substantive right created by the Bankruptcy Code, and therefore does not “arise under” title 11. Additionally, the request is not an administrative matter that could arise only in bankruptcy, and therefore does not “arise in a case under” title 11. In re Toledo, 170 F.3d at 1345-46. The issue, therefore, is whether the request is “related to” a case under the Bankruptcy Code. “[F]or federal bankruptcy jurisdiction to exist, a case must at minimum ‘relate to’ a case under title 11.” In re Boone, 52 F.3d 958, 960 (11th Cir.1995). The Eleventh Circuit Court of Appeals has adopted the test established by the Third Circuit for determining" }, { "docid": "8899886", "title": "", "text": "provision creates jurisdiction in three categories of proceedings: those that ‘arise under title 11,’ those that ‘arise in cases under title 11,’ and those ‘related to cases under title 11.’ The bankruptcy court’s jurisdiction is derivative of and dependent upon these three bases.” In re Toledo, 170 F.3d 1340, 1344 (11th Cir.1999). The Bank’s request for cancellation or modification of the tax hen is not based on a substantive right created by the Bankruptcy Code, and therefore does not “arise under” title 11. Additionally, the request is not an administrative matter that could arise only in bankruptcy, and therefore does not “arise in a case under” title 11. In re Toledo, 170 F.3d at 1345-46. The issue, therefore, is whether the request is “related to” a case under the Bankruptcy Code. “[F]or federal bankruptcy jurisdiction to exist, a case must at minimum ‘relate to’ a case under title 11.” In re Boone, 52 F.3d 958, 960 (11th Cir.1995). The Eleventh Circuit Court of Appeals has adopted the test established by the Third Circuit for determining whether a proceeding is “related to” a bankruptcy case. “The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have an effect on the estate being administered in bankruptcy. The proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.” In re Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir.1990), quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984). The jurisdictional grant under this test is extremely broad. In re Toledo, 170 F.3d at 1345. As shown above, the Bank in this case seeks the cancellation or modification of a tax lien on property located in Texas. While the case was pending as a chapter 13 case, the Bank and the Debtors “stipulated” that the" }, { "docid": "18968324", "title": "", "text": "case under title 11; and (4) proceedings “related to” a case under title 11. In re Combustion Eng’g, Inc., 391 F.3d 190, 225 (3d Cir.2005). The category of cases “under” title 11 “refers merely to the bankruptcy petition itself.” Id. at 225-26 n. 38 (quotation and citation omitted). A case “arises under” title 11 “if it invokes a substantive right provided by title 11.” Torkelsen v. Maggio (In re Guild & Gallery Plus, Inc.), 72 F.3d 1171, 1178 (3d Cir.1996). Bankruptcy “arising under” jurisdiction is analogous to 28 U.S.C. § 1331, which provides for original jurisdiction in district courts “of all civil actions arising under the Constitution, laws, or treaties of the United States.” 1 Collier on Bankruptcy § 3.01[4][c][i] at '3-21-22 (15th ed. rev. 2005);- see also Wood v. Wood (Matter of Wood), 825 F.2d 90, 96-97 (5th Cir.1987). The category of proceedings “arising in” bankruptcy cases “includes such things as administrative matters, orders to turn over property of the estate and determinations of the validity, extent, or priority of liens.” 1 Collier on Bankruptcy § 3.01[4][c][iv] at 3-31 (quotations and footnotes omitted). Proceedings “arise in” a bankruptcy case, “if they have no existence outside of the bankruptcy.” United States Trustee v. Gryphon at the Stone Mansion, Inc.) 166 F.3d 552, 556 (3d Cir.1999). Finally, a proceeding is “related to” a bankruptcy case if “the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” In re Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984); see also In re Federal-Mogul Global, Inc., 300 F.3d 368, 381 (3d Cir.2002) (noting that Pacor “clearly remains good law in this circuit” in this respe.ct). Stoe, 436 F.3d at 216. These matters are core proceedings within the meaning of 28 U.S.C. § 157(b)(2)(A), (N), and (O), and these matters “arise under” title 11. In In re Bell, 476 B.R. 168, 175 (Bankr.E.D.Pa. 2012), the court explained that “arising under” jurisdiction includes any proceeding which invokes a substantive right un der the Bankruptcy Code. Indeed, the current action is one which involves the substantive rights granted" }, { "docid": "3333101", "title": "", "text": "bankruptcy court had jurisdiction to entertain the instant adversary proceeding under 28 U.S.C. § 1334. Section 1334(b) provides that “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” This provision creates jurisdiction in three categories of proceedings: those that “arise under title 11,” those that “arise in cases under title 11,” and those “related to cases under title 11.” The bankruptcy court’s jurisdiction is derivative of and dependent upon these three bases. Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S.Ct. 1493, 1498, 131 L.Ed.2d 403 (1995); 1 Lawrence P. King, Collier on Bankruptcy ¶ 3.01[4] (15th ed.1998) [hereinafter Collier on Bankruptcy]. The instant adversary proceeding did not “arisfe] under” or “aris[e] in” a case under the Bankruptcy Code. “Arising under” proceedings are matters invoking a substantive right created by the Bankruptcy Code. Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir.1987); 1 Collier on Bankruptcy ¶ 3.01[4][e][i]. The “arising in a case under” category is generally thought to involve administrative-type matters, 1 Collier on Bankruptcy ¶ 3.01[4][c][iv], or as the Wood court put it, “matters that could arise only in bankruptcy,” Wood, 825 F.2d at 97. Hence, the only one of the three categories of proceedings over which the district court is granted jurisdiction in § 1334(b) that is potentially relevant to the instant case is proceedings “related to cases under title 11.” The “related to” connection has been described as “the minimum for bankruptcy jurisdiction.” E. Scott Fruehwald, The Related to Subject Matter Jurisdiction of Bankruptcy Courts, 44 Drake L.Rev. 1, 7 (1995). The Bank claims that the dispute between Sanchez and the Bank over entitlement to the proceeds of the Partnership Property was not related to Toledo’s underlying bankruptcy case and had no effect on Toledo or the Estate, and therefore the bankruptcy court had no jurisdiction to adjudicate that dispute. Blending the concepts of jurisdiction and the core versus non-core dichotomy, the district court held that the bankruptcy court had jurisdiction because the" }, { "docid": "20262098", "title": "", "text": "district consistent with Fifth Amendment due process. That court, then, may properly sanction those without the district when their conduct violates or frustrates the court’s injunctive orders. So, too, could the Delaware Bankruptcy Court adjudicate the rights of Creditors and the members of their class, notwithstanding that Creditors and those similarly situated may or may not have independent jurisdictional ties to the District of Delaware. 3. This conclusion does not fully resolve the matter at hand, for there remains the issue of how we are to dispose of this appeal. Above all, the Delaware Bankruptcy Court should be the court to consider the merits of Debtors’ assertion that Creditors are pursuing discharged claims. The simplest option would be to remand the case with the instruction that Debtors’ complaint be dismissed without prejudice. If that were the disposition, Debtors presumably would turn to the Delaware Bankruptcy Court for relief. Taking that course, however, would seem unnecessarily cumbersome and wasteful of judicial resources. Instead, we believe that transferring the case to the United States District Court for the District of Delaware would be more efficient. The bankruptcy jurisdiction and venue statutes provide that “[a] district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties.” 28 U.S.C. § 1412. First, if characterized as an attempt to enforce the Confirmation Order’s discharge injunction, Debtors’ complaint initiated a “proceeding under title 11,” 28 U.S.C. § 1412, that triggered the Florida Bankruptcy Court’s statutory transfer power, see Cont’l Nat’l Bank of Miami v. Sanchez (In re Toledo), 170 F.3d 1340, 1345 (11th Cir.1999) (“ ‘Arising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code.” (citing Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir.1987))); see also 28 U.S.C. § 1334(b) (giving the district courts original jurisdiction “of all civil proceedings arising under title 11”); Ins. Co. of N. Am. v. NGC Settlement Trust & Asbestos Claims Mgmt. Corp. (In re Nat’l Gypsum Co.), 118 F.3d 1056, 1063-64 (5th Cir.1997)" }, { "docid": "13198873", "title": "", "text": "which a party objects.” Id. at 2604, 131 S.Ct. 2594; see 28 U.S.C. § 157(c)(1). Core claims are those proceedings “arising under title 11” and proceedings that “arise in” cases under title 11. 28 U.S.C. § 157(a)-(b); In re Ames Dep’t Stores Inc., No. 06 Civ. 5394, 2008 WL 7542200, at *4 (S.D.N.Y. June 4, 2008). Cases “arise under” title 11 when the cause of action or substantive right claimed is created by the Bankruptcy Code. MBNA Am. Bank, N.A. v. Hill, 436 F.3d 104, 108-09 (2d Cir.2006); see In re Housecraft Indus. USA, Inc., 310 F.3d 64, 70 (2d Cir.2002). Cases “arise in” a title 11 proceeding if they “are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy.” Baker v. Simpson, 613 F.3d 346, 351 (2d Cir.2010) (per curiam) (quoting In re Wood, 825 F.2d 90, 97 (5th Cir.1987)) (internal quotation marks and alteration omitted). Thus, a claim that is “an essential part of administering the estate” implicates the Bankruptcy Court’s core jurisdiction. In re Ben Cooper, Inc., 896 F.2d 1394, 1400 (2d Cir.1990). The Court of Appeals has “held that core proceedings should be given a broad interpretation that is close to or congruent with constitutional limits.” Mt. McKinley, 399 F.3d at 448 (internal quotation marks omitted). Sixteen different types of matters are listed in the statute, providing a nonexclusive list of what claims are included within the bankruptcy court’s core jurisdiction. 28 U.S.C. § 157(b)(2); Stem, 131 S.Ct. at 2603. However, “the determination of whether a particular proceeding is core or non-core cannot be made by simply consulting that list.” In re Ames, 2008 WL 7542200, at *6. Whether a claim is core or non-core is determined on a “case-by-case basis by evaluating both the form and the substance of the particular proceeding” under the standards above. Id Non-core claims are those that are “related to” a bankruptcy case. See 28 U.S.C. § 157(c)(1). “[A] civil proceeding is ‘related to’ a title 11 case if the action’s outcome might have any conceivable effect on the" }, { "docid": "21021076", "title": "", "text": "— breach of fiduciary duty and reasonable care- — are “unrelated to” and “outside the scope” of the bankruptcy proceeding because they do not arise directly from substantive provisions of the Bankruptcy Code. Carter posits the theory that because his claims are unrelated to the bankruptcy proceeding, the bankruptcy court lacks jurisdiction over his lawsuit and, therefore, he was not required to obtain leave of the bankruptcy court before bringing his suit in district court. We disagree. The bankruptcy court has jurisdiction over Carter’s claims because his breach of fiduciary duty and reasonable care claims are “related to” and “within the scope” of the bankruptcy proceeding. Because Carter’s claims are related to the bankruptcy proceeding, we need not determine whether leave of the bankruptcy court is required when a debtor sues a trustee for a tort completely “unrelated to” and “outside the scope” of the bankruptcy proceeding. A proceeding is within the bankruptcy jurisdiction, defined by 28 U.S.C. § 1334(b), if it “arises under” the Bankruptcy Code or “arises in” or is “related to” a case under the Code. “ ‘Arising under’ proceedings are matters invoking a substantive right created by the Bankruptcy Code. The ‘arising in a case under’ category is generally thought to involve administrative-type matters, or as the ... court put it, ‘matters that could arise only in bankruptcy.’ ” In re Toledo, 170 F.3d 1340, 1345 (11th Cir.1999) (citations omitted). We have stated, “The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have an effect on the estate being administered in bankruptcy.” Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784, 788 (11th Cir.1990). While Carter’s action against Defendants arose after the date of the bankruptcy petition, his suit turns solely on allegations of wrongdoing in the sale of property belonging to the bankruptcy estate. Any recovery would reduce the administrative expenses of the sale of the estate property and would perforce increase the amount of estate property available to satisfy creditors’ claims. See 11 U.S.C. §" }, { "docid": "19760348", "title": "", "text": "Title 28 Congress established the jurisdiction of the bankruptcy courts in Title 28. Kontrick v. Ryan, 540 U.S. 443, 453, 124 S.Ct. 906, 914, 157 L.Ed.2d 867 (2004). Section 1334 of Title 28 provides that “the district courts shall have original and exclusive jurisdiction of all cases under title 11 [the Bankruptcy Code],” and “original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(a)-(b). Section 151 of Title 28 provides that the bankruptcy courts are “a unit of the district court.” Id. § 151. Pursuant to 28 U.S.C. § 157(a), “[e]ach district court may provide that any or all cases under title 11 [the Bankruptcy Code] and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the- district.” Id. § 157(a). Section 157(b)(1) then provides that bankruptcy courts “may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to [appellate] review” by the district court. Id. § 157(b)(1). Thus, bankruptcy court jurisdiction exists, by reference from the district courts, “in three categories of proceedings: those that ‘arise under title 11,’ those that ‘arise in cases under title 11,’ and those ‘related to cases under title 11.’ ” Cont’l Natl Bank of Miami v. Sanchez (In re Toledo), 170 F.3d 1340, 1344 (11th Cir. 1999) (citation omitted); see also Eastman Kodak Co. v. Atlanta Retail, Inc. (In re Atlanta Retail, Inc.), 456 F.3d 1277, 1287 (11th Cir.), cert. denied, 549 U.S. 1102, 127 S.Ct. 836, 166 L.Ed.2d 676 (2006). 2. Title 11 In turn, Title 11, the Bankruptcy Code, contains nine chapters. Chapter 7 governs liquidation and is the substantive chapter operative in this case. Chapter 3, entitled “Case Administration,” contains § 303(b), the procedural statute at issue. Chapter 3 has four subchapters, including Subchapter I," }, { "docid": "19087859", "title": "", "text": "same for purposes of removal under section 1452, a distinction exists between those concurrent jurisdiction claims that “arise under” or “arise in” Title 11 on the one hand, and those that are merely “related to” Title 11 on the other hand. This distinction between “arising under,” “arising in,” and “related to” Title 11 has significance as a jurisdictional consideration: “Arising under” and “arising in” are terms of art. They are two of the three categories of cases over which district courts have jurisdiction under 28 U.S.C. § 1334(b). The third category includes cases “related to” a case under title 11. As the Fifth Circuit has explained, Congress used the phrase “arising under title 11” to describe those proceedings that involve a cause of action created or determined by a statutory provision of title 11.... The meaning of “arising in” proceedings is less clear, but seems to be a reference to those “administrative” matters that arise only in bankruptcy cases. In other words, “arising in” proceedings are those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy. In re Wood, 825 F.2d 90, 96-97 (5th Cir.1987) (footnotes omitted). The court concluded: “If the proceeding does not invoke a substantive right created by the federal bankruptcy law and is one that could exist outside of bankruptcy it is not a core proceeding; it may be related to the bankruptcy because of its potential effect, but ... it is an ‘otherwise related’ or non-core proceeding.” Id. at 97. Eastport Assocs. v. City of Los Angeles (In re Eastport Assocs.), 935 F.2d 1071, 1076-77 (9th Cir.1991) (as amended) (emphases in original; footnote omitted). Put another way, claims that arise under or in Title 11 are deemed to be “core” proceedings, while claims that are related to Title 11 are “noncore” proceedings. See e.g. Robertson v. Isomedix, Inc. (In re Int’l Nutronics), 28 F.3d 965, 969 (9th Cir.1994) (“[c]ore proceedings are matters concerning the administration of the estate and rights created by title 11.”) (internal citation and quotation omitted). This distinction between" }, { "docid": "15728553", "title": "", "text": "improper. II. Bankruptcy Jurisdiction A. Standards 28 U.S.C. § 1452(a) provides a party may remove any civil claim or cause of action to the federal district court for the district in which the state civil action is pending if the federal district court has jurisdiction over that claim or cause of action pursuant to 28 U.S.C. § 1334. 28 U.S.C. § 1334(b) provides “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Proceedings that involve a cause of action created or determined by a statutory provision of Title 11 are proceedings “arising under” Title 11 for purposes of 28 U.S.C. § 1334. In re Harris Pine Mills, 44 F.3d 1431, 1435 (9th Cir.), cert. denied, 515 U.S. 1131, 115 S.Ct. 2555, 132 L.Ed.2d 809 (1995). Proceedings “arising in” a case under Title 11 are those administrative matters that are not based on any right expressly created by Title 11 but, nevertheless, would have no existence outside of the bankruptcy. Id. In other words, claims “arising under” Title 11 or “arising in” a case under Title 11 are those proceedings referred to as “core proceedings” and are specifically listed in the Bankruptcy Code in 28 U.S.C. § 157(b)(2). Id. Proceedings “related to” a bankruptcy matter do not invoke a substantive right created by the federal bankruptcy law and could exist outside of the bankruptcy. Id. A proceeding is “related to” the bankruptcy if “the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy.” In re American Hardwoods, Inc., 885 F.2d 621, 623 (9th Cir.1989). A cause of action is “related to” the bankruptcy case “if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.” Id. Claims that are “related to” the bankruptcy are “noncore proceedings” under the Bankruptcy Code. In re Harris Pine Mills, 44 F.3d at 1435. See also 28 U.S.C." } ]

[ { "docid": "22597336", "title": "", "text": "contended, the applicable base offense level for Guerrero was 28 because of the quantity of heroin involved in his overall scheme. With a two-level reduction for acceptance of responsibility and a further two-level reduction for being a minor participant in that scheme, the correct base offense level was 24. The appropriate guideline range was therefore fifty-one to sixty-three months, and the sixty-three month sentence was therefore proper under the Guidelines. II. The Upward Departure Even if, contrary to our conclusion, the appropriate base offense level for Guerrero was 12, the level for an offense involving less than five grams of heroin, it was not unreasonable for the sentencing judge to make an upward departure from the guideline range of six to twelve months and select a sentence of sixty-three months in light of the large quantity of narcotics in the ultimate transaction that Guerrero admitted he had facilitated. We recently examined the departure authority of a sentencing judge under the Guidelines in United States v. Correa-Vargas, 860 F.2d 35 (2d Cir.1988). We there upheld an upward departure above the guideline range specified for the offense of using a telephone in the commission of a drug offense. 21 U.S. C. § 843(b) (1982). The departure was based on the large quantity of narcotics involved. Guerrero’s situation is arguably different from Correa-Vargas’ because, unlike the guideline for distributing narcotics, section 2D1.1(a)(3), the guideline for a telephone drug offense, section 2D1.6, does not include a range of base levels that correlate with the quantity of drugs involved. Because of this difference, Guerrero contends that the Sentencing Commission has already taken into account drug quantities in setting the base offense levels for distribution offenses and, he argues, quantity may therefore not be used as the basis for an upward departure. As he points out, a departure is permitted only if the sentencing court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (Supp. IV 1986). Guerrero’s point would have more" } ]

[ { "docid": "14346443", "title": "", "text": "offense levels of 29 reached by reference to the sexual abuse guideline, with a credit for acceptance of responsibility. The court departed upward by 4 levels, for total offense levels of 33* on the bases of the extreme psychological harm sustained by Caveny and the extreme conduct exhibited by Anderson and Barnett. Anderson’s criminal history category of III, with an offense level of 33, yielded a sentencing range of 168 to 210 months.' The district court sentenced him to 200 months imprisonment, followed by 5 years supervised release. Barnett, with a criminal history category of V and an offense level of 33, faced a sentencing range of 210 to 262 months. He received a term of 240 months imprisonment and 5 years supervised release. On appeal, Anderson and Barnett challenge the calculation of their offense levels and the district court’s upward departure. Discussion I. Application of the Kidnapping Guideline We will uphold a sentence imposed pursuant to the guidelines unless it is imposed in violation of law, is the result of incorrect- application of the guidelines, or is an unreasonable departure from the applicable guideline range. 18 U.S.C. § 3742(e); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). We review determinations of legal principles de novo and factual findings for clear error. United States v. Mourning, 914 F.2d 699, 704 (5th Cir.1990). A. Anderson’s claims In sentencing the defendants, the district court began with the kidnapping guideline, section 2A4.1, with its base offense level of 24. Next, as directed by section 2A4.1(b)(7), the court referred to the criminal sexual abuse guideline, section 2A3.1, which carries a base offense level of 27. Finally, the court enhanced the sexual abuse offense level for abduction of the victim, reaching an offense level (before any departure) of 31. Anderson does not argue that the district court improperly turned to section 2A3.1 from section 2A4.1(b)(7). Instead, he complains that it was error for the district court to enhance the sexual abuse base offense level for the abduction of the victim, reasoning" }, { "docid": "17141299", "title": "", "text": "board the vessels in 1989 and 1991 was destined for Canada and had been the subject of Canadian prosecution. The court thus concluded that only 2% of the hashish — the amount that entered the United States — should be counted as part of the defendants’ relevant conduct pursuant to U.S.S.G. § 1B1.3. This resulted in a U.S.S.G. base offense level of 36. The court added three levels to the defendants’ base offense levels for their aggravating roles under U.S.S.G. § 3Bl.l(b). The resulting total offense level for each defendant was 39. Because Greer’s criminal history category was II, his U.S.S.G. range was 292 to 365 months; Hutchins’s criminal history category was I, and his U.S.S.G. range was therefore 262 to 327 months. The District Court sentenced Greer to 324 months’ and Hutchins to 276 months’ imprisonment. Both defendants were also fined $500,000. A. The Defendants’ Sentencing Claims 1. Failure to State Reasons Greer and Hutchins request a remand for resentencing because the District Court failed to state its reasons for imposing sentences of 324 months’ and 276 months’ imprisonment, respectively. Whether we may review a district court’s failure to state its reasons for imposing a particular sentence depends on whether the court imposed a sentence within an applicable Sentencing Guideline range that exceeds 24 months or whether it departed downward and imposed a sen-fence outside the applicable range. Title 18, section 3553(c)(1) of the United States Code requires a district court to explain its reasons for imposing a sentence at a particular point within a Guidelines range if the range exceeds 24 months. See 18 U.S.C. § 3553(c)(1); see also United States v. Prince, 110 F.3d 921, 927 (2d Cir.), cert. denied, 522 U.S. 872, 118 S.Ct. 188, 139 L.Ed.2d 127 (1997). Title 18, section 3553(c)(2) similarly requires a district court to state its reasons for imposing a sentence outside the range established by the Guidelines — that is, for departing. See 18 U.S.C. § 3553(c)(2). However, in United States v. Hargrett, 156 F.3d 447, 450 (2d Cir.), cert. denied, 525 U.S. 1048, 119 S.Ct. 607, 142 L.Ed.2d 547" }, { "docid": "13987378", "title": "", "text": "of the Diaz-Villafane analysis, we must next determine whether the “degree” of the district court’s departure was reasonable. See id. (“[T]he direction and degree of departure must, on appeal, be measured by a standard of reasonableness.”). C. Having determined that departure was warranted, we must now consider whether the direction and degree of departure was reasonable. United States v. Christoph, 904 F.2d 1036, 1042 (6th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). Because “[tjrial judges are on the front line dealing with real live defendants, and are in a far better position than appellate courts to determine the circumstances justifying an upward departure,” United States v. Joan, 883 F.2d at 496, a “[district] court’s discretion to depart from the Guidelines is broad.” United States v. Rodriguez, 882 F.2d 1059, 1068 (6th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990). “Necessarily, the trial judge’s determination must be given great deference, and, unless there is little or no basis for the trial court’s action in departing, it must be upheld, provided the trial court has recognized that departure is the exception, and has adequately articulated its reasons for departure.” United States v. Joan, 883 F.2d at 496. Though the sentencing judge in the instant action determined that the Sentencing Guidelines directed a 97 to 121 month sentence (offense level 28; criminal history category III), the judge departed from the guideline range and sentenced Gonzales to 236 months due to the severity of his criminal history which was not reflected in his guideline range calculation. Pursuant to the Sentencing Guidelines’ career offender provision, U.S.S.G. § 4B1.1, the sentencing judge determined that Gonzales’ proper sentencing range dictated a 210 to 262 month sentence (offense level 32; criminal history category VI). This departure can hardly be deemed unreasonable in light of Gonzales’ crimes. See United States v. Roberson, 872 F.2d 597, 606 n. 7 (5th Cir.), cert. denied, — U.S. —, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989) (“[T]he mere fact that a departure sentence exceeds by several times the maximum recommended under the" }, { "docid": "12951910", "title": "", "text": "little or no basis for the trial court’s action in departing, it must be upheld, provided the trial court has recognized that departure is the exception, and has adequately articulated its reasons for departure.” United States v. Joan, 883 F.2d at 496. Furthermore, the district court judge “must act in a rational and just way in an effort to vindicate one of the major purposes of the criminal law— deterrence, punishment, isolation, rehabilitation, or retribution.” Id. Though the district court judge in the instant action determined that the Sentencing Guidelines directed a 27 to 33 month sentence (offense level 18; criminal history category I), the judge departed from the guideline range and sentenced Benskin to 60 months due to the severity, and duration, of his crimes. This departure can hardly be deemed unreasonable in light of Benskin’s crimes: The trial court, however, specifically stated that her decision to enhance Burns’ sentence was based not simply on planning but upon the prolonged and repetitive nature of Burns’ crime.... The court properly observed that in incorporating a “more than minimal planning” adjustment into the Guidelines, the Commission did not consider “the number of years and the amount of fraudulent transactions ... executed” by a defendant. Burns’ crime involved 53 separate acts of theft over a six-year period. The trial judge could reasonably have concluded that the duration of execution, then, warranted enhancement. We note that a defendant who persists in his criminal activity over a period of years may deserve a harsher sentence than a defendant whose crime was limited in duration because the former has arguably had more opportunities to renounce his illegal schemes. Accordingly, the trial court’s finding that the duration of Burns’ crime justified departure ... was not unreasonable. United States v. Burns, 893 F.2d 1343, 1346 (D.C.Cir.) (emphasis in original), cert. granted, — U.S. -, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990). See also United States v. Roberson, 872 F.2d 597, 606 n. 7 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989) (“[T]he mere fact that a departure sentence exceeds by several" }, { "docid": "14031321", "title": "", "text": "to sixty months’ imprisonment followed by three years’ supervised release on each count to run concurrently. This appeal followed. UPWARD DEPARTURE Huddleston contends that the district court erred in determining that an upward departure of his sentence from the guideline range was appropriate. ■ This Court has held that sentences that fall within the statutory limits, even though constituting an upward departure from the guidelines, will not be disturbed absent a “gross abuse of discretion.” United States v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir.1989). When departing from the guidelines, however, the district court must articulate reasons justifying the upward departure. United States v. Murillo, 902 F.2d 1169, 1172 (5th Cir.1990). If the reasons are “acceptable” and “reasonable,” this Court will affirm. United States v. Perez, 915 F.2d 947, 948 (5th Cir.1990); United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989); United States v. Velasquez-Mercado, 872 F.2d 632, 637 (5th Cir.), cert. denied, — U.S. —, 110 S.Ct. 187, 107 L.Ed.2d 142 (1989). Precedent in this circuit does not, however, require that the district court give reasons for the extent of its departure. United States v. Roberson, 872 F.2d 597, 601 (5th Cir.), cert. denied, — U.S. —, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989); United States v. Geiger, 891 F.2d 512, 514 (5th Cir.1989); United States v. Rogers, 917 F.2d 165, 169 (5th Cir.1990). The district court determined Huddleston’s guideline sentencing range to be from twenty-seven to thirty-three months. However, in departing upward from the guidelines, the district court specifically found: [A]n upward departure in this case is warranted based on the fact that the offense level in this case does not adequately reflect the risk this offense represented in the community. These explosives were being transported by the defendant in an unsafe manner through a populated area. A car wreck would have resulted in the detonation of these explosives, would have resulted in extensive property damage, and casualties. The relevant section in this case 2K1.3, I believe, fails to take such a risk into consideration" }, { "docid": "12083526", "title": "", "text": "and unlawful acquisition and possession of food stamps, 7 U.S.C. § 2024(b). She was then sentenced to 120 months imprisonment, six years supervised release, a $1000 fine, and a $50 special assessment. Geiger filed this timely appeal, claiming that the district court made an impermissible upward departure from the Guidelines. II. At the time the instant offense was committed, Geiger was on probation for a prior conviction and on bail for pending drug charges. Her criminal history consists of four prior convictions for drug offenses and one conviction for gambling. Based on these convictions Geiger would have qualified as a career offender, but did not because three of the drug convictions were consolidated for one sentence. Her criminal record was thus computed to be Criminal History Category III. See U.S. Sentencing Commission, Sentencing Guidelines Manual, § 4Al.l(c), (d) (Oct. 15, 1988) [hereinafter Sentencing Guidelines].. The base offense level is 16, but was adjusted to 14 for acceptance of responsibility. Id. §§ 2D1.1(a)(3), 2D1.-3(a)(2)(B), 3E1.1. According to the Guidelines, the appropriate imprisonment range is 21 to 27 months. See id. § 5C2.1, Sentencing Table. The district court made an upward departure from the Guidelines by imposing a sentence of 120 months. We are bound to uphold a sentence unless it was “ ‘imposed in violation of law,’ or was ‘imposed as a result of an incorrect application of the sentencing guidelines,’ or was ‘outside the range of the applicable sentencing guideline, and is unreasonable.’ ” United States v. Buenrostro, 868 F.2d 135, 136 (5th Cir.1989) (quoting 18 U.S.C. § 3742(d), (e)). An upward departure is permissible if aggravating circumstances are present that are not adequately taken into consideration by the Guidelines. United States v. Roberson, 872 F.2d 597, 601 (5th Cir.), cert. denied, - U.S. -, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989); 18 U.S.C. § 3553(b); Sentencing Guidelines § 5K2.0. While a sentencing court has broad discretion in departing from the Guidelines, it must explain why the departure is justified by the policies underlying the Guidelines. United States v. Rivera, 879 F.2d 1247, 1254-55 (5th Cir.1989); Roberson, 872 F.2d at" }, { "docid": "14578676", "title": "", "text": "by the district court. . Under guideline 2D1.1(a)(3), the offense level for his conviction for distributing 13.5 grams of cocaine was twelve (minus two points for acceptance of responsibility); Shoupe's past convictions landed him a criminal history score of twelve under guideline 4A1.1. Thus, a straight application of the sentencing guidelines, without reference to the career offender category, would have brought Shoupe a sentence of 21-27 months imprisonment. . For other cases similarly permitting substantial downward departures from the career offender provision, see United States v. Maddalena, 893 F.2d 815 (6th Cir.1989) (holding that sentencing court had discretion to consider defendant’s attempts to stay away from drugs in departing downward from career offender provision); United States v. Brittman, 750 F.Supp. 388 (E.D.Ark.1990) (granting defendant substantial downward departure because career offender provision over-represented the seriousness of his criminal history); United States v. Nichols, 740 F.Supp. 1332 (N.D.Ill.1990) (granting substantial downward departure from career offender provision because of the age of defendant, the minute quantify of drugs involved, and the absence of violence from any of the prior offenses); and United States v. Garrett, 712 F.Supp. 1327 (N.D.Ill.1989) aff'd 903 F.2d 1105 (7th Cir.) cert. denied, — U.S. —, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990) (granting substantial downward departure from career offender sentence of 35 years because the defendant was 42 years old and under such a long sentence would \"die in prison”). . See, e.g., United States v. Ybabez, 919 F.2d 508 (8th Cir.1990) (Government permitted departure from 210-262 months down to 150 months and court affirmed); United States v. Dean, 908 F.2d 215 (7th Cir.1990) (Government permitted downward departure for “career offender” from sentence of 30 years-life to 6 years and court affirmed); United States v. Gant, 902 F.2d 570 (7th Cir.1990) (Government permitted downward departure for \"career offender” from a sentencing range of 210-262 months to 120 months and court affirmed); United States v. Left Hand Bull, 901 F.2d 647 (8th Cir.1990) (affirming departure from 51-63 months to 48 months); United States v. Jones, 898 F.2d 1461 (10th Cir.) cert. denied, — U.S. —, 111 S.Ct. 111, 112" }, { "docid": "3962036", "title": "", "text": "there may be other grounds for departure that are not mentioned; it also believes there may be cases in which a departure outside suggested levels is warranted. In its view, however, such cases will be highly unusual. Guidelines ch. 1, pt. A, § 4(b); see United States v. Nuno-Para, 877 F.2d 1409, 1413 (9th Cir.1989) (“[t]he district court’s discretion is further fettered by any analogy provided by the guidelines”). Guided by analogy, the approximate amount of departure for the two excess offenses not considered in determining Pearson’s combined offense level may be calculated by adding one offense level for the two uncounted offenses. The total offense level thus rises from 22 to 23. The guidelines sentencing range for an offense level of 23 and criminal history category III is 57 to 71 months. Guidelines ch. 5, part A. The 120-month sentence imposed was significantly greater, 49 months more than the high end of the range. When other courts have permitted substantial departures, the cases typically have been ill-suited to departure by analogy. See United States v. Lopez-Escobar, 884 F.2d 170, 173 (5th Cir.1989) (mere fact that a departure more than doubles the maximum guideline sentence is of no independent significance, finding departure from 2 to 5 years reasonable based on large number of illegal aliens transported); United States v. Rodriguez, 882 F.2d 1059, 1067-68 (6th Cir.1989) (departure from 37 to 72 months reasonable where court articulated several grounds for departure, one of which related to criminal history level), cert. denied, — U.S.-, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); United States v. Diaz-Villafane, 874 F.2d 43, 50-52 (1st Cir.) (departure more than tripling maximum sentence from 33 to 120 months not “outside of the universe of acceptable punishments” where court articulated five separate grounds for departure), cert, denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Salazar-Villarreal, 872 F.2d 121, 122-23 (5th Cir.1989) (upward departure from maximum 10-month guideline to 36 months reasonable, based on death and injury resulting from crime); United States v. Roberson, 872 F.2d 597, 602-03 (5th Cir.) (departure from maximum of" }, { "docid": "14617296", "title": "", "text": "to 18 U.S.C. § 3553(e), the resulting sentence must be within the Guidelines range appropriate for the offense and the offender’s criminal history category. Because his original offense level was 16 and his criminal history category is I, Hayes contends that the district court was constrained by the resulting 21 to 27 month range. Hayes bases his argument on the portion of § 3553(e) that states: “Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission.... ” 18 U.S.C. § 3553(e) (referring to sentences imposed below the statutory minimum for substantial assistance). Hayes’ argument is unavailing, however, because his 47-month sentence was imposed in accordance with the Guidelines. “Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall he the guideline sentence.” U.S.S.G. § 5G1.1(b) (emphasis supplied). Therefore, when the district court originally sentenced Hayes, the statutory mandatory minimum sentence of 60 months became Hayes’ Guidelines range, albeit a narrow one. The 21 to 27 range no longer applied. The appropriate starting point for Hayes’ downward departure was 60 months, and the district court properly began there. That determination made, we must now consider the extent of the downward departure that the district court granted Hayes. Though our review of departures from the Guidelines is deferential, we require the extent of a downward departure to be linked to the structure of the Guidelines. United States v. Gentry, 925 F.2d 186, 188-89 (7th Cir.1991). In addition, when a departure is made, “we measure the degree of the departure itself under a standard of reasonableness.” United States v. Bigelow, 914 F.2d 966, 975 (7th Cir.1990), cert. denied, 498 U.S. 1121, 111 S.Ct. 1077, 112 L.Ed.2d 1182 (1991). The district court determined the extent of the downward departure to be awarded Hayes by starting with the lowest offense level consistent with a 60-month sentence and departing downward two levels from that point. This method is linked appropriately to the structure of the Guidelines. In addition, the two-level downward departure is reasonable for Hayes’" }, { "docid": "22311836", "title": "", "text": "month upward sentencing departure from the applicable maximum 87 month sentence under the Guidelines. Melton, 970 F.2d at 1334. The district court departed upward because the defendant was responsible for a murder, for which the guideline range did not account, that was related to the drug conspiracy charged. 970 F.2d at 1330. To determine the extent of departure, the district court relied on analogous guideline provisions for first degree murder and for a death that results from the use of a drug. Id. at 1334. We approved of this analytical approach and, applying the abuse of discretion standard of Hummer, held that the extent of departure was reasonable. Id. Likewise, the defendant in United States v. Lara pleaded guilty to illegally transporting and harboring aliens, which resulted in an offense level of nine under the Guidelines. United States v. Lara, 975 F.2d 1120, 1126 n. 7 (5th Cir.1992). The district court upwardly departed an additional nine levels based upon an analogy between the defendant’s conduct and the conduct proscribed by a similar guideline providing sentences for extortion. Id. at 1123. Noting its reluctance \"to tread with too heavy a step upon the district court’s discretion,” the Fifth Circuit upheld the departure based on the strength of the analogy. Id. at 1126. The court noted that \" 'the mere fact that a departure sentence exceeds by several times the maximum recommended under the Guidelines is of no independent consequence in determining whether the sentence is reasonable.’ ’’ Id. (quoting United States v. Roberson, 872 F.2d 597, 606 n. 7 (5th Cir.), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989))." }, { "docid": "22955651", "title": "", "text": "departing from the sentencing guidelines. The district court sentenced Laury to 175 months imprisonment, 25 months above the sentencing guidelines maximum. A departure from the sentencing guidelines will be upheld if (1) the district court provided acceptable reasons for the departure, and (2) the extent of the departure was reasonable. United States v. Fields, 923 F.2d 358, 361 (5th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2066, 114 L.Ed.2d 470 (1991). Laury argues that the district court’s upward departure was unreasonable because it was based on a factor (Laury’s criminal history) already taken into account by the guidelines. The presentence report stated that Laury had been convicted seven times for offenses involving theft and burglary in a span of six years. The presentence report also showed that Laury repeatedly violated parole and probation. Adopting the factual findings of the presentence report, the district court stated that it was upwardly departing because of Laury’s “constant recidivism and displaying of violent behavior.” Record on Appeal, vol. 2, at 325. Thus, the district court upwardly departed because Laury’s criminal history category did not adequately reflect the seriousness of his past criminal conduct. We review this finding of fact for clear error. See United States v. Roberson, 872 F.2d 597, 607 (5th Cir.1989), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). We review the district court’s decision to depart upward from the guidelines for abuse of discretion. See Roberson, 872 F.2d at 601. That a defendant’s criminal history category does not adequately reflect the seriousness of a defendant’s past criminal conduct “is a factor not taken into account by the Guidelines and is a permissible justification for upward departure.” United States v. Geiger, 891 F.2d 512, 514 (5th Cir.1989) (emphasis added) (upholding upward departure where defendant’s criminal history category did not adequately reflect seriousness of defendant’s criminal history), cert. denied, 494 U.S. 1087, 110 S.Ct. 1825, 108 L.Ed.2d 954 (1990), overruled on other grounds by United States v. Lambert, 984 F.2d 658, 659 (5th Cir.1993) (en banc); see also Roberson, 872 F.2d at 606 (same). In fact, the Commission" }, { "docid": "1288051", "title": "", "text": "from a range of 33 to 41 months under Criminal History Category 5 (and Offense Level 14), to a range of 37 to 46 months under Criminal History Category 6 (and the same Offense Level 14), still below the mandatory minimum 180 month sentence that had to be imposed. Unable to follow the directive of Lopez and Jones, the district court extrapolated a formula of its own. It turned to the Guidelines “Sentencing Table,” and under category 5, located the range within which a sentence of 180 months would fall. That corresponded to an offense level of 30 (which provided for a guideline range of 151 to 188 months). The court then reasoned that Carpenter’s criminal history warranted a two point upward adjustment to an offense level of 32, providing for a guideline sentencing range of 188 to 235 months. The court chose a sentence of 230 months, comfortably within its newly formulated guideline range. We know of no authority sanctioning the district court’s methodology. Likewise, we know of no authority condemning it. Because guideline sentencing ranges recommended by the Sentencing Table do not account for the § 924(e) enhancement, the district court was left to improvise. Although we do not ratify the methodology employed by the district court, we nevertheless affirm the sentence because, ultimately, the departure reflected a reasonable upward adjustment. See United States v. Webb, 950 F.2d 226, 232 (5th Cir.1991) (“We hold that the amount of the departure, five years [60 months], was reasonable, particularly in light of the facts of Webb’s past and that his base sentence was the minimum statutory penalty of fifteen years.”) (emphasis in original); Fields, 923 F.2d at 362 (24 month upward departure from the mandatory minimum 180 month sentence required by § 924(e) was reasonable); United States v. Geiger, 891 F.2d 512, 513-14 (5th Cir.1989) (upholding a 120 month sentence even though guidelines recommended a maximum sentence of 27 months), cert. denied, 494 U.S. 1087, 110 S.Ct. 1825, 108 L.Ed.2d 954 (1990); accord United States v. Briggman, 931 F.2d 705, 710 (11th Cir.), cert. denied, — U.S. —, 112 S.Ct." }, { "docid": "12082624", "title": "", "text": "may be other grounds for departure that are not mentioned; it also believes there may be eases in which a departure outside suggested levels is warranted. In its view, however, such cases will be highly unusual. Guidelines ch. 1, pt. A, § 4(b); see United States v. Nuno-Para, 877 F.2d 1409, 1413 (9th Cir.1989) (“[t]he district court’s discretion is further fettered by any analogy provided by the guidelines”). Guided by analogy, the approximate amount of departure for the two excess offenses not considered in determining Pearson’s combined offense level may be calculated by adding one offense level for each of the two uncounted offenses. The total offense level thus rises from 22 to 24. The guidelines sentencing range for an offense level of 24 and criminal history category III is 63 to 78 months. Guidelines ch. 5, part A. The 120-month sentence imposed was significantly greater, 42 months more than the high end of the range. When other courts have permitted substantial departures, the cases typically have been ill-suited to departure by analogy. See United States v. Lopez-Escobar, 884 F.2d 170, 173 (5th Cir.1989) (mere fact that a departure more than doubles the maximum guideline sentence is of no independent significance, finding departure from 2 to 5 years reasonable based on large number of illegal aliens transported); United States v. Rodriguez, 882 F.2d 1059, 1067-68 (6th Cir.1989) (departure from 37 to 72 months reasonable where court articulated several grounds for departure, one of which related to criminal history level), cert. denied, — U.S. -, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); United States v. Diaz-Villafane, 874 F.2d 43, 50-52 (1st Cir.) (departure more than tripling maximum sentence from 33 to 120 months not “outside of the universe of acceptable punishments” where court articulated five separate grounds for departure), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Salazar-Villarreal, 872 F.2d 121, 122-23 (5th Cir.1989) (upward departure from maximum 10-month guideline to 36 months reasonable, based on death and injury resulting from crime); United States v. Roberson, 872 F.2d 597, 602-03 (5th Cir.) (departure from" }, { "docid": "15300034", "title": "", "text": "a drug trafficking crime (18 U.S.C. § 924(c)(1)). . Prior to the April 22, 1992 sentencing, the probation officer determined the base offense level to be 36 pursuant to U.S.S.G. § 2D1.1(a)(3). (PSR at 6, par. 9). No adjustments were recommended by probation and, therefore, the total offense level was 36. (Id.). In determining MADISON’s criminal history category, the probation officer assessed MADISON one criminal history point for her 1990 conviction for credit card fraud. (Id. at 7-8, par. 29). Two points were assessed for MADISON’s 1991 conviction for possession of stolen property and criminal trespass. (Id. at 8, par. 30). Two additional points were assessed because MADISON committed her instant offense within two years after being released from confinement on the 1991 conviction. (Id. at 8, par. 31). The total of five criminal history points placed MADISON in criminal history category III. One additional conviction, and five different arrests were not applied to her criminal history score. Accordingly, the minimum guideline sentencing range was determined to be 235 to 293 months, not including the 60 month consecutive sentence mandated by 18 U.S.C. § 924(c)(1). According to the PSR, there were no aggravating or mitigating factors warranting a departure from the sentencing range. (Id. at 13, par. 63). Neither party objected to the PSR’s recommended findings of fact, nor to its conclusions concerning the applicable guideline range. (R., Vol. 1 at 26). . R., Vol. 4 at 9. . 18 U.S.C. § 924(c)(1). . Incidentally, Allen was sentenced to 295 months in F.C.I. and 60 months of supervised release. . In its \"Statement of Reasons for Imposing Sentence,\" the district court apparently abandoned this reason. (R., Vol. 1 at 27). Since this statement was not included in the reasons for sentence entered into the record, we consider it as superfluous verbiage. . See also United States v. Fields, 906 F.2d 139, 142 (5th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 200, 112 L.Ed.2d 162 (1990) (sentencing court properly refused to impose a downward departure on the basis that defendant was a \"minor\" participant); United States v. Velasquez, 868 F.2d" }, { "docid": "6676643", "title": "", "text": "both crimes where the cases were unconnected and where no formal consolidation order was entered), cert. denied, - U.S. -, 112 S.Ct. 346, 116 L.Ed.2d 286 (1991); United States v. Rivers, 929 F.2d 136, 139 (4th Cir.) (different sentences levied in different cases is evidence that cases were not consolidated for sentencing even though sentences were imposed at same time by same judge), cert. denied, - U.S. -, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991); United States v. Smith, 905 F.2d 1296, 1303 (9th Cir.1990) (simply because a defendant received concurrent sentences for separate offenses does not lead to the conclusion that the cases were consolidated for sentencing). As the court in Lopez, 961 F.2d at 386, stated, “[S]imply because sentences run concurrently and were imposed on the same day does not require the sentences to be consolidated for guideline purposes absent a showing of a close factual relationship between the convictions.” In the present case, defendant does not argue that there was a close factual relationship between the seven offenses set forth in the indictment as the predicate offenses for his conviction of being a former felon in possession of a firearm. For these reasons, the decision of the district court is hereby AFFIRMED. With a criminal history category of VI and a base offense level of 33, defendant’s sentencing guideline range was 235-293 months’ imprisonment. Thus, defendant was properly sentenced at the low end of that range to 235 months’ imprisonment. . Defendant thus received twelve criminal history points because of the seven sentences he received in state court on May 23, 1991. Defendant argues that he should have been assessed only three points because the cases were consolidated for sentencing. Accordingly, his total criminal history points would have been 7 instead of 16, and his criminal history category would have been IV instead of VI, with a resulting guideline range of 188-235 months (base offense level of 33, criminal history level IV). The district court found the guideline range to be 235-293 months (base offense level of 33, criminal history level VI). . Defendant was paroled on" }, { "docid": "12082625", "title": "", "text": "States v. Lopez-Escobar, 884 F.2d 170, 173 (5th Cir.1989) (mere fact that a departure more than doubles the maximum guideline sentence is of no independent significance, finding departure from 2 to 5 years reasonable based on large number of illegal aliens transported); United States v. Rodriguez, 882 F.2d 1059, 1067-68 (6th Cir.1989) (departure from 37 to 72 months reasonable where court articulated several grounds for departure, one of which related to criminal history level), cert. denied, — U.S. -, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); United States v. Diaz-Villafane, 874 F.2d 43, 50-52 (1st Cir.) (departure more than tripling maximum sentence from 33 to 120 months not “outside of the universe of acceptable punishments” where court articulated five separate grounds for departure), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Salazar-Villarreal, 872 F.2d 121, 122-23 (5th Cir.1989) (upward departure from maximum 10-month guideline to 36 months reasonable, based on death and injury resulting from crime); United States v. Roberson, 872 F.2d 597, 602-03 (5th Cir.) (departure from maximum of 37 months to 120 months reasonable where defendant’s conduct was “extreme”), cert. denied, — U.S. -, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). We do not imply that a departure by analogy always must be on a strict proportional basis to the guidelines sentence. Factors other than the number of offenses may be considered, such as those factors mentioned by the district judge — including the threat of use of a gun, and the commission of the robbery in an area occupied by people, thus increasing the likelihood of harm. There may be many other factors justifying results different from those derived by analogy. In this case, however, after considering the factors mentioned by the judge, we conclude that the sentence so greatly exceeds the amount suggested by analogy that the amount of departure is unreasonable. The district judge thus abused his discretion in fixing the degree of departure. See Lira-Barraza, 897 F.2d at 987. Due Process Pearson’s argument that his sentence violated due process is based primarily on the use by the" }, { "docid": "3962037", "title": "", "text": "v. Lopez-Escobar, 884 F.2d 170, 173 (5th Cir.1989) (mere fact that a departure more than doubles the maximum guideline sentence is of no independent significance, finding departure from 2 to 5 years reasonable based on large number of illegal aliens transported); United States v. Rodriguez, 882 F.2d 1059, 1067-68 (6th Cir.1989) (departure from 37 to 72 months reasonable where court articulated several grounds for departure, one of which related to criminal history level), cert. denied, — U.S.-, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); United States v. Diaz-Villafane, 874 F.2d 43, 50-52 (1st Cir.) (departure more than tripling maximum sentence from 33 to 120 months not “outside of the universe of acceptable punishments” where court articulated five separate grounds for departure), cert, denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Salazar-Villarreal, 872 F.2d 121, 122-23 (5th Cir.1989) (upward departure from maximum 10-month guideline to 36 months reasonable, based on death and injury resulting from crime); United States v. Roberson, 872 F.2d 597, 602-03 (5th Cir.) (departure from maximum of 37 months to 120 months reasonable where defendant’s conduct was “extreme”), cert. denied, — U.S.-, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). We do not imply that a departure by analogy always must be on a strict proportional basis to the guidelines sentence. Factors other than the number of offenses may be considered, such as those factors mentioned by the district judge — including the threat of use of a gun, and the commission of the robbery in an area occupied by people, thus increasing the likelihood of harm. There may be many other factors justifying results different from those derived by analogy. In this case, however, after considering the factors mentioned by the judge, we conclude that the sentence so greatly exceeds the amount suggested by analogy that the amount of departure is unreasonable. The district judge thus abused his discretion in fixing the degree of departure. See Lira-Barraza, 897 F.2d at 986. Due Process Pearson’s argument that his sentence violated due process is based primarily on the use by the judge of his" }, { "docid": "21571947", "title": "", "text": "renting a house and receiving rental payments through a numbered bank account. The district court also noted that a very substantial length of time elapsed from the first of these events until the Snovers’ arrest, which occurred in July 1988. The sentence range under the Guidelines for a conviction under 18 U.S.C. § 152 was 14 to 21 months for Dale Snover, based on an offense level of 14, and 10 to 16 months for Mary Snover, based on an offense level of 12. See Guidelines § 2F1.1. The district court determined that Dale Snover’s offense level was higher because of his greater role in the offense. The district court may depart from the Guidelines if it finds aggravating or mitigating circumstances which are not adequately taken into consideration by the Guidelines. 18 U.S.C. § 3553(b). When departing from the Guideline range, however, the district court must provide “the specific reason for the imposition of a sentence different from that described [in the Guidelines].” 18 U.S.C. § 3553(c). The district court’s decision to depart upward is reviewed under an abuse of discretion standard, United States v. Carey, 898 F.2d 642 (8th Cir.1990); United States v. Drew, 894 F.2d 965 (8th Cir.1990), and “[t]he court’s discretion to depart from the Guidelines is broad.” United States v. Roberson, 872 F.2d 597, 601 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). We review sentences which are outside the applicable range for reasonableness. See 18 U.S.C. § 3742(e)(3). We are commanded to accept the district court’s findings of fact unless they are clearly erroneous and to give due deference to the district court’s application of the Guidelines to the facts. Id. § 3742(e). The district court listed the aggravating factors which it found justified an upward departure. These factors included the Sno-vers’ acts of concealment before and after filing bankruptcy, as well as “activity of a somewhat similar nature, though not resulting in criminal charges but intimating a deep attachment to the obtaining of money or property at the expense of others, thereby signaling the unlikelihood of rehabilita" }, { "docid": "13987379", "title": "", "text": "it must be upheld, provided the trial court has recognized that departure is the exception, and has adequately articulated its reasons for departure.” United States v. Joan, 883 F.2d at 496. Though the sentencing judge in the instant action determined that the Sentencing Guidelines directed a 97 to 121 month sentence (offense level 28; criminal history category III), the judge departed from the guideline range and sentenced Gonzales to 236 months due to the severity of his criminal history which was not reflected in his guideline range calculation. Pursuant to the Sentencing Guidelines’ career offender provision, U.S.S.G. § 4B1.1, the sentencing judge determined that Gonzales’ proper sentencing range dictated a 210 to 262 month sentence (offense level 32; criminal history category VI). This departure can hardly be deemed unreasonable in light of Gonzales’ crimes. See United States v. Roberson, 872 F.2d 597, 606 n. 7 (5th Cir.), cert. denied, — U.S. —, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989) (“[T]he mere fact that a departure sentence exceeds by several times the maximum recommended under the Guidelines is of no independent consequence in determining whether the sentence is reasonable.”). Accordingly, “the extent of the district court’s departure from the Guidelines ... was within the realm of reason.” United States v. Diaz-Villafane, 874 F.2d at 52. IV. For the aforementioned reasons, we AFFIRM Gonzales’ conviction and sentence. . In fact, it appears that the probation officer and the district court judge applied the wrong provision of § 4B1.1. Gonzales should have been sentenced pursuant to § 4B1.1(B), not (C). Under § 4B1.1(B), the applicable guideline range would have been substantially higher (262 to 327 months). Neither party addressed this error, however. . The district court properly moved directly from criminal history category III to criminal history category VI because of the Sentencing Guidelines’ career offender provision, § 4B1.1. See United States v. Medved, 905 F.2d 935, 941-42 (6th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991)." }, { "docid": "18689507", "title": "", "text": "matter controverted has not been taken into account in the sentencing. The Judgment and Commitment Order prepared by the court stated that appellant’s offense level was 13, which established a guideline range of 12-18 months. The Order also states, “The sentence is within the guideline range, that range does not exceed months, and the court finds no reason to depart from the sentence called for by application of the guideline.” (emphasis added). The defendant then filed a motion for resen-tencing, státing that the government’s intention was to recommend a downward departure equivalent to a reduction of two levels, based upon appellant’s cooperation. The United States filed a document, joining in defendant’s motion. On June 19, 1992, the court denied the motion, stating that a downward departure from 18 to 15 months was granted and that the recommendation of the United States was not binding. The defendant then brought this timely appeal. II The appellant argues that it was improper for the court to consider criminal acts occurring outside of Iowa because only the Iowa wrongdoing served as the basis for the information, and the plea agreement stipulated that the relevant conduct was limited to the defendant’s Iowa activities. We disagree. Under the Guidelines then in effect, the court may consider any activities related to the offense charged. U.S.S.G. § 1B1.3 provided that the base offense level “shall be determined on the basis of ...' all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction_” The activities occurring in other states were part of the same course of conduct. Moreover, this court previously has rejected this same argument. United States v. Silverman, 976 F.2d 1502 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993); United States v. Miller, 910 F.2d 1321 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). In Miller, the defendant pled guilty to one count of distributing 1.25 ounces of cocaine. In sentencing the defendant, the trial court looked to drug dealing activities" } ]

[ { "docid": "13608460", "title": "", "text": "726 [98 S.Ct. 3026, 57 L.Ed.2d 1073] (1978) and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 [109 S.Ct. 2829, 106 L.Ed.2d 93] (1989).” Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02. The legislative history makes clear that Congress did not intend to create a distinction in meaning when it used the generic term “indecency” in § 223(a) and the definition of that term in § 223(d). There is no doubt that the CDA requires the most stringent review for vagueness, since it is a criminal statute that “threatens to inhibit the exercise of constitutionally protected rights”. Colautti v. Franklin, 439 U.S. 379, 391, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979); see also Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983); Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. My analysis here nevertheless leads ineluctably to the conclusion that the definition of indecency is not unconstitutionally vague. The Miller definition of obscenity has survived such challenges, see, e.g., Hamling v. United States, 418 U.S. 87, 118-19, 94 S.Ct. 2887, 2908-09, 41 L.Ed.2d 590 (1974); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57, 109 S.Ct. 916, 924, 103 L.Ed.2d 34 (1989), and the definition of indecency contains a subset of the elements of obscenity. If the Miller test “give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly”, Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972), the omission of parts of that test does not warrant a contrary conclusion. See Dial Information Services, 938 F.2d at 1541-42. Similarly, since the definition of indecency arose from the Supreme Court itself in Pacifica, we may fairly imply that the Court did not believe its own interpretation to invite “arbitrary and discriminatory enforcement” or “abut upon sensitive areas of basic First Amendment freedoms”. Grayned, 408 U.S. at 108-109, 92 S.Ct. at 2299 (citations and alterations omitted). Sable, while not explicitly addressing the issue of vagueness, reinforces" } ]

[ { "docid": "845479", "title": "", "text": "provided. It is impermissible to set out a law violation where the offense is too subjective, involving a risk of discriminatory enforcement of the law, again inhibitory to First Amendment freedoms. See Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, 227-228 (1972). Under the holdings of Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), and Interstate Circuit, Inc. v. Dallas, supra, considering the statutes and ordinances there considered, section 22-23.1(g) is impermissibly vague. As necessarily applied by Board members, the section constituted an excessively subjective judgment as to what might be deemed “obscene to juveniles”. Again, society and parents are to be commended for current concern about the extraordinary portrayals of violent conduct on movie (as well as television) screens. If carefully drawn, under obscenity standards, such portrayals might be subject to permissible criminal standards. The Court reaches this conclusion with particular regret as to excision of two sections of the ordinance, recognizing the difficulty confronting legislatures and councils under Supreme Court standards and recognizing the laudable intent of the drafters of this section dealing with undoubted pernicious effects of excessive violence portrayed in the communicative arts upon youth (as well as adults). It is noted that subsections (c), (e) and (f) are markedly more specific than is subsection (g). Cf. Chief Justice Burger’s examples of one of the obscenity standards in Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, 431 (1973), and see Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1061 (1942). Violence in the form of sadism or in relation to prurient acts may properly be considered in determining obscenity, or may be taken into account as an important factor in defining obscenity. SEVERABILITY Drafters of the Memphis Code (Section 1-11) in question provided that if particular provisions were held invalid, they could and should be severed so that the remainder of the ordinance could be saved. Striking out sections 22-23.-1(b)(4) and 22-23.1(g), does not impair the continued validity of the remainder of" }, { "docid": "402051", "title": "", "text": "forces must perforce be conditioned to meet certain overriding demands of discipline and duty.” Parker v. Levy, 417 U.S. 733, 744, 94 S.Ct. 2547, 2556, 41 L.Ed.2d 439 (1974) (internal quotation marks and citations omitted). Congress, acting under its authority to maintain and regulate the armed forces, may constitutionally place some restrictions on the speech that occurs under military command. The Military Honor and Decency Act of 1996 embodies such a set of constitutional restrictions.' Accordingly, we vacate the judgment of the district court and remand with instructions to enter judgment for the appellants. I. The Military Honor and Decency Act became effective on December 22, 1996, and provides in pertinent part: (a) PROHIBITION OF SALE OR RENTAL. The Secretary of Defense may not permit the sale or rental of sexually explicit material on property under the jurisdiction of the Department of Defense. (b) PROHIBITION OF OFFICIALLY PROVIDED SEXUALLY EXPLICIT MATERIAL. A member of the armed forces or a civilian officer or employee of the Department of Defense acting in an official capacity may not provide for sale, remuneration, or rental sexually explicit material to another person. (c) REGULATIONS. The Secretary of Defense shall prescribe regulations to implement this section. (d) DEFINITIONS. In this section: (1) the term “sexually explicit material” means an audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium, the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs; in a lascivious way. 10 U.S.C. § 2489a. Pursuant to section 2489a(e), the Department of Defense issued a “directive-type memorandum” implementing the Act that also became effective on December 22, 1996. This memorandum contains the following pertinent definitions: 1. Material. An audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium. 2. Sexually Explicit Material. Material the dominant theme of which is the depiction or description of nudity, including sexual or excretory activities or organs, in a lascivious way. 3. Dominant Theme. A theme of any material that is superior in power, influence, and importance to all" }, { "docid": "6861597", "title": "", "text": "First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.”). J&B additionally argues that the Ordinance is void for vagueness because it “im-permissibly delegates basic policy matters to policemen, judges, and juries.” See Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2299; Kolender v. Lawson, 461 U.S. 352, 358-60, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983). We again note that J&B has not argued that the terms “nipple,” “anus,” or “genitals” are vague or that a person of reasonable intelligence cannot understand the meaning of these terms. See Dodger’s Bar & Grill, 32 F.3d at 1444-45; Kev, 793 F.2d at 1057. In the absence of any such argument, we find that the Ordinance sets forth a core of prohibited conduct with sufficient definiteness to guide those who must interpret it. See Kolender, 461 U.S. at 358, 103 S.Ct. at 1858 (finding a law to be void for vagueness because it specified no core of prohibited conduct and permitted “‘a stan-dardless sweep allowing] policemen, prosecutors, and juries to pursue their personal predilections’”) (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1247-48, 39 L.Ed.2d 605 (1974)). Finally, J&B argues that the Ordinance is facially vague because the exception contains only one of the Miller obscenity test’s three prongs. This argument is reminiscent of the Supreme Court’s reasoning in Reno v. ACLU, — U.S. -, -, 117 S.Ct. 2329, 2345, 138 L.Ed.2d 874 (1997), in which the Court found certain terms in the Communications Decency Act of 1996 to be vague because the Act defined them by reference only to one of Miller’s three prongs. The offending terms in the Act were “indecent” and material that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Id. at -, 117 S.Ct. at 2331. In rejecting the government’s argument that these terms were no more vague than Miller’s definition of obscenity, the Court described the “lack[ing] of serious" }, { "docid": "6536899", "title": "", "text": "thus entitling a plaintiff to a preliminary injunction if he shows a likelihood of success on the merits. Rather the plaintiffs must show “a chilling effect on free expression.” It is “purposeful unconstitutional [government] suppression of speech [which] constitutes irreparable harm for preliminary injunction purposes.” Accordingly, it is the “direct penalization, as opposed to incidental inhibition, of First Amendment rights [which] constitutes irreparable injury.” Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction. Hohe v. Casey, 868 F.2d 69, 72-78 (3d Cir.) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976)) (other citations omitted), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989). See also Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir.1996); Shea on Behalf of Am. Reporter v. Reno, 930 F.Supp. 916, 935 (S.D.N.Y.1996), petition for cert. filed, 65 U.S.L.W. 3323 (U.S. Oct. 15, 1996) (No. 96-595). For the second prong of the preliminary injunction standard, the Second Circuit has recently reaffirmed that in cases requiring an injunction against the government, the plaintiff must show likelihood of success: Ordinarily, the movant then has two options: it must either demonstrate a likelir hood of success on the merits or it must raise “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” However, in a case in which “the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” the injunction should be granted only if the moving party . meets the more rigorous likelihood-of-success standard. Bery, 97 F.3d at 694 (citations omitted). B. The City’s Actions Violate the Cable Act. A judgment of whether particular programming violates Section 531(a) must be grounded in an understanding of the structure of the Cable Act itself, the programming environment in which Congress imposed the regulatory structure, and the legislative history explaining the purposes and content of Section 531(a). The franchise agreements" }, { "docid": "402110", "title": "", "text": "or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 2545, 105 L.Ed.2d 342 (1989). Indeed, the government’s defense of the statute unmasks the Act’s viewpoint discrimination. The government asserts that the statute serves the government’s interest in preserving “the military’s image of honor, professionalism, and proper decorum.” The underlying premise is that the military’s distribution of depictions of nudity that are lewd or intended to elicit a sexual response are inconsistent with “honor, professionalism, and proper decorum.” Yet the decision to ban distribution of such material strips military personnel of the right to decide for themselves whether such depictions are consistent with those values. It even arguably denies them the right to determine which displays of nudity are lascivious. “At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 2458, 129 L.Ed.2d 497 (1994); see also Board of Educ. v. Pico, 457 U.S. 853, 867, 102 S.Ct. 2799, 2808, 73 L.Ed.2d 435 (1982) (“[T]he right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press and political freedom.”). Thus, the majority’s claims that one does not “go about discussing and considering the political issues of the day from a lascivious viewpoint,” is beside the point. It ignores the political issue of whether nonobscene, lascivious material, whatever form it may take, is necessarily inconsistent with the military’s image of honor, professionalism and decorum, or the promotion of core values. The majority’s claim that the Supreme Court’s dicta in R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 2546, 120 L.Ed.2d 305 (1992), that “[a] State might chose to prohibit only that obscenity ... which involves the most lascivious displays of sexual activity,” authorizes the government to ban distribution of all lascivious portrayals of sexually explicit materials, ante at 281, is misguided for two reasons. Not only is no-nobscene sexually explicit speech protected, unlike" }, { "docid": "402102", "title": "", "text": "jurisdiction of the Department of Defense,” which includes military exchanges. 10 U.S.C. § 2489a(a), (d)(2). The Act bans audio and video recordings, and periodicals with visual descriptions, produced in any medium, but does not ban purely written material. 10 U.S.C. § 2489a(d)(l). The term “sexually explicit material” is defined as material “the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way.” Id. “Lascivious” is defined by the implementing regulations to mean “lewd and intended or designed to elicit a sexual response.” Department of Defense Directive-Type Memorandum, “Sale or Rental of Sexually Explicit Material on DoD Property” (Dec. 22, 1996). This memorandum also establishes the “Resale Activities Board of Review,” which hás “the authority and responsibility to periodically review material offered or to be offered for sale or rental” at exchanges, and to determine whether such material is “sexually explicit” as defined by the memorandum. Id. The court below granted appellee’s request for permanent injunctive relief on the basis that the Act violated the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. It reasoned that because the purpose of the Act was to ban expression that the government conceded was “offensive” and “because the First Amendment prevents the government from banning material solely because it is offensive,” the Act was unconstitutional. The district court did not decide whether a military exchange is a public or nonpublic forum, nor whether the Act was viewpoint discriminatory. I agree with the majority that, as these issues are questions of law, we are equally well positioned to decide them. However, that is where my agreement with the majority ends. I would affirm the district court’s opinion. I. The Military Honor and Decency Act of 1996 does not prohibit the distribution of all sexually explicit material in military exchanges. Nor does it ban all depictions of nudity. Instead, it bars only the distribution of sexually explicit material, “the dominant theme of which depicts or describes nudity ... in a lascivious way.” Because I believe this is viewpoint discrimination," }, { "docid": "402052", "title": "", "text": "provide for sale, remuneration, or rental sexually explicit material to another person. (c) REGULATIONS. The Secretary of Defense shall prescribe regulations to implement this section. (d) DEFINITIONS. In this section: (1) the term “sexually explicit material” means an audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium, the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs; in a lascivious way. 10 U.S.C. § 2489a. Pursuant to section 2489a(e), the Department of Defense issued a “directive-type memorandum” implementing the Act that also became effective on December 22, 1996. This memorandum contains the following pertinent definitions: 1. Material. An audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium. 2. Sexually Explicit Material. Material the dominant theme of which is the depiction or description of nudity, including sexual or excretory activities or organs, in a lascivious way. 3. Dominant Theme. A theme of any material that is superior in power, influence, and importance to all other themes in the material combined. 4. Lascivious. Lewd and intended or designed to elicit a sexual response. Joint App. at 63, reproducing DoD Directive-Type Memorandum, “Sale or Rental of Sexually Explicit Material on DoD Property” (Dec. 22, 1996). The memorandum also provides that “[m]aterial shall not be deemed sexually explicit because of any message or point of view expressed therein.” In addition, the memorandum establishes the “Resale Activities Board of Review’ (the “Board”). The Board is obliged periodically to review material offered for sale or rental on military property to determine whether such material is sexually explicit. Any material that the Board finds to be “sexually explicit” according to the stated terms of the memorandum is to be withdrawn from military retail outlets. The district court found, and the parties do not dispute, that the Act bans only the sale or rental of sexually explicit material on military property. The Act does not restrict the possession of such material on military property, nor does it prohibit military personnel from sharing such material with their" }, { "docid": "845478", "title": "", "text": "of itself, “obscene to juveniles”, and subject to elimination because of so-called “freedom” of speech. Many recent films distributed by plaintiffs seem regrettably to go out of their way to insert such language even in ‘PG’ rated films. This section, however, is overbroad and could be aided by guidelines set out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and its progeny. Certainly, language itself may be a factor in determining whether a film, or a part thereof, is obscene to minors. Note also the dissent in Lewis v. City of New Orleans, 415 U.S. 136, 142, 94 S.Ct. 970, 976, 39 L.Ed.2d 214, 224 (1974) wherein the expression may bring about an imminent breach of the peace. EXCESS VIOLENCE SECTION Section 22-23.1 defines “obscene to juveniles” as “excess violence”, which is defined in § 22-23.1(g), set out in footnote No. 1. Plaintiffs attack this section as unconstitutionally vague. The “vagueness” doctrine proscribes criminal statutes which lack clear definition and import so that no fair warning or notice is provided. It is impermissible to set out a law violation where the offense is too subjective, involving a risk of discriminatory enforcement of the law, again inhibitory to First Amendment freedoms. See Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, 227-228 (1972). Under the holdings of Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), and Interstate Circuit, Inc. v. Dallas, supra, considering the statutes and ordinances there considered, section 22-23.1(g) is impermissibly vague. As necessarily applied by Board members, the section constituted an excessively subjective judgment as to what might be deemed “obscene to juveniles”. Again, society and parents are to be commended for current concern about the extraordinary portrayals of violent conduct on movie (as well as television) screens. If carefully drawn, under obscenity standards, such portrayals might be subject to permissible criminal standards. The Court reaches this conclusion with particular regret as to excision of two sections of the ordinance, recognizing the difficulty confronting legislatures and councils under Supreme" }, { "docid": "402106", "title": "", "text": "discrimination is censorship in its purest form ... ”). Even in a nonpublic forum, the government may not regulate speech in “an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46, 103 S.Ct. at 955; see also Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985) (“Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purposes of the forum ... the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”) As the majority points out, the distinction between content and viewpoint discrimination is not “a precise one.” However, the majority’s assertion that “lascivious” is an adjective identifying subject matter does not advance the inquiry: viewpoints and subject matters are both identified by some adjective — the question is whether the statute will skew one side of a debate. “Indecent” speech, or even “sexually explicit” speech, may be regarded as a category of speech, and the regulation of such speech is a content-based regulation. See Sable Communications, 492 U.S. at 126, 109 S.Ct. at 2836. To divide that category between depictions of nudity and other depictions, is yet another division, one step closer to viewpoint discrimination. But in banning distribution of only those depictions of nudity that are “lascivious,” defined as “lewd and intended or designed to elicit a sexual response,” the government is necessarily attempting to regulate a specific perspective — a point of view. Portrayals of nude men and women designed to elicit a sexual response illustrate an idea: that lust or sexual desire is good, that men and women are sexual beings, or, if depicted in a submissive way, that women or men are submissive objects for humiliation or domination. Depictions of nude men and women in nonsubmissive ways, or in ways not designed to arouse, are permitted under the Act. This is, under relevant precedent, viewpoint discrimination. See," }, { "docid": "15145261", "title": "", "text": "of ‘conventions of decency.’ ” Papish v. Board of Curators of University of Missouri, 1973, 410 U.S. 667, 670, 93 S.Ct. 1197, 1199, 35 L.Ed.2d 618; see also Healy v. James, 1972, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266. But see Gay Lib v. University of Missouri, W.D.Mo.1976, 416 F.Supp. 1350 [45 L.W. 2021, 1976] (a case which, in my opinion, cannot be reconciled with Healy). . See Erznoznik v. City of Jacksonville, 1975, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125; Cohen v. California, 1971, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284. Justice Stewart’s description of the motion pictures at issue in Young v. American Mini Theatres, 1976, - U.S. -,-, 96 S.Ct. 2440, 49 L.Ed.2d 310 [44 U.S.L.W. 4999, 1976 (dissenting opinion), is obviously applicable to the MGA ad: The kind of expression at issue here is no doubt objectionable to some, but that fact does not diminish its protected status any more than did the particular content of the “offensive” expression in Erznoznik . (display of nudity on a drive-in movie screen); Lewis v. City of New Orleans, 415 U.S. 130 [94 S.Ct. 970, 39 L.Ed.2d 214] (utterance of vulgar epithet); Hess v. Indiana, 414 U.S. 105 [94 S.Ct. 326, 38 L.Ed.2d 303] (utterance of vulgar remark); Papish . . . (indecent remarks in campus newspaper); Cohen . . . (wearing of clothing inscribed with a vulgar remark); Brandenburg . . . (utterance of racial slurs); or Kingsley Pictures Corp. v. Regents, 360 U.S. 684 [79 S.Ct. 1362, 3 L.Ed.2d 1512] (alluring portrayal of adultery as proper behavior). . “[T]here is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 1974, 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789; 805; cf. New York Times v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. . See Miller v. California, 1973, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Cf. Young v. American Mini Theatres, Inc.,--U.S.-, 96 S.Ct. 2440," }, { "docid": "6861598", "title": "", "text": "of prohibited conduct and permitted “‘a stan-dardless sweep allowing] policemen, prosecutors, and juries to pursue their personal predilections’”) (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1247-48, 39 L.Ed.2d 605 (1974)). Finally, J&B argues that the Ordinance is facially vague because the exception contains only one of the Miller obscenity test’s three prongs. This argument is reminiscent of the Supreme Court’s reasoning in Reno v. ACLU, — U.S. -, -, 117 S.Ct. 2329, 2345, 138 L.Ed.2d 874 (1997), in which the Court found certain terms in the Communications Decency Act of 1996 to be vague because the Act defined them by reference only to one of Miller’s three prongs. The offending terms in the Act were “indecent” and material that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Id. at -, 117 S.Ct. at 2331. In rejecting the government’s argument that these terms were no more vague than Miller’s definition of obscenity, the Court described the “lack[ing] of serious literary, artistic, political, or scientific value” prong as “particularly important” and “critically limiting] the uncertain scope of the obscenity definition.” Id. at -, 117 S.Ct. at 2345. In contrast to the Communications Decency Act, the Ordinance includes this “particularly important” prong as its exception. Moreover, as the district court correctly noted, nudity and obscenity are not synonymous. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981); Erznoznik, 422 U.S. at 213, 95 S.Ct. at 2275. If the City were required to include all three prongs of Miller, it would be regulating obscene nudity, and its ability to regulate nonobscene nudity would be eviscerated. Because Barnes plainly gives governments the power to regulate nonob-scene nudity, as we discuss below, we reject J&B’s argument. In conclusion, we reiterate that because the Ordinance is riot vague as applied to J&B, we have reviewed J&B’s facial vagueness challenge only to determine whether the Ordinance contains real and substantial vagueness. We express no opiriion as to whether less than substantial" }, { "docid": "402107", "title": "", "text": "a debate. “Indecent” speech, or even “sexually explicit” speech, may be regarded as a category of speech, and the regulation of such speech is a content-based regulation. See Sable Communications, 492 U.S. at 126, 109 S.Ct. at 2836. To divide that category between depictions of nudity and other depictions, is yet another division, one step closer to viewpoint discrimination. But in banning distribution of only those depictions of nudity that are “lascivious,” defined as “lewd and intended or designed to elicit a sexual response,” the government is necessarily attempting to regulate a specific perspective — a point of view. Portrayals of nude men and women designed to elicit a sexual response illustrate an idea: that lust or sexual desire is good, that men and women are sexual beings, or, if depicted in a submissive way, that women or men are submissive objects for humiliation or domination. Depictions of nude men and women in nonsubmissive ways, or in ways not designed to arouse, are permitted under the Act. This is, under relevant precedent, viewpoint discrimination. See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist.,, 508 U.S. 384, 394, 113 S.Ct. 2141, 2147-48, 124 L.Ed.2d 352 (1993) (denying permission to evangelical church to use school facilities to show a film about child rearing and family values solely because the film dealt with a subject from a religious perspective was viewpoint discriminatory when that subject had not been placed off limits to any and all speakers); American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.1985) (striking down an ordinance prohibiting trafficking in pornography, where pornography was defined as expressive material that depicts women as sexual objects, or as enjoying or deserving humiliation), aff'd mem., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); AIDS Action Comm. v. MBTA, 42 F.3d 1, 12 (1st Cir.1994) (holding that transit authority’s refusal to accept advertisements regarding AIDS prevention for display in subway ears when it had allowed other sexually explicit material to be advertised which represented “the conventional exploitation of women’s bodies” was viewpoint discrimination). It is no answer that the" }, { "docid": "23105722", "title": "", "text": "special condition prohibiting possession of material containing nudity without discussion. Id. Without some guidance from the Seventh Circuit about the reasoning for its decision or information about why the district court imposed the special condition on that particular defendant, Holm does little to assist our analysis here. The government attempts to save special condition 13 by analogizing it to cases like Stults, Boston, and Ristine, which upheld prohibitions on possessing pornography, essentially arguing that special condition 13 was intended to prohibit Simons from viewing or possessing pornography. But special condition 13 goes well beyond the conditions upheld in those cases. Whatever the definition of “pornography,” it includes more than mere nudity. See Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974) (“[N]udity alone is not enough to make material legally obscene....”); United States v. Kemmerling, 285 F.3d 644, 645-46 (8th Cir.2002) (‘We have held that more than mere nudity is required before an image can qualify as ‘lascivious’ within the meaning of the [child pornography statute].”). Indeed, if the district court was attempting to prohibit Simons’s possession of pornography, a ban on materials that contain nudity may have been superfluous; a ban on “material that depicts or alludes to sexual activity or depicts sexually arousing material” would also ban pornography, at least under some definitions of the word. See Black’s Law Dictionary 1279 (9th ed.2009) (defining pornography as “Material (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement”); Miller, 413 U.S. at 18 n. 2, 93 S.Ct. 2607 (defining pornography as “a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.” (quoting Webster’s Third New International Dictionary (Unabridged 1969))). Thus, our prior decisions upholding prohibitions on possessing pornography are insufficient to save special condition 13. The government also argues that the probation office and, ultimately, the district court can act to limit the reach of special condition 13 to obscene materials or pornography, thereby bringing it within the reach of Stults," }, { "docid": "402101", "title": "", "text": "leave constitutional safeguards and judicial protection behind them when they enter military service.” Weiss v. United States, 510 U.S. 163, 194, 114 S.Ct. 752, 769, 127 L.Ed.2d 1 (1994) (Ginsburg, J., concurring). In short, the fact that the interests of the individual may sometimes be validly subordinated to “ ‘the needs of service,’ ” Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986) (quoting Orloff v. Willoughby, 345 U.S. 83, 92, 73 S.Ct. 534, 539, 97 L.Ed. 842 (1953)), does not mean service members lose those rights whenever Congress, in exercising its power to raise armies, so desires. When First Amendment protection bows to the military’s desire to suppress certain ideas without a clear and strong reason, desire to protect our liberties with a strong military authority may end up eroding our liberty to speak freely and to be tolerated in doing so. The Military Honor and Decency Act of 1996,10 U.S.C. § 2489a (the “Act”), prohibits “the sale or rental of sexually explicit material on property under the jurisdiction of the Department of Defense,” which includes military exchanges. 10 U.S.C. § 2489a(a), (d)(2). The Act bans audio and video recordings, and periodicals with visual descriptions, produced in any medium, but does not ban purely written material. 10 U.S.C. § 2489a(d)(l). The term “sexually explicit material” is defined as material “the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way.” Id. “Lascivious” is defined by the implementing regulations to mean “lewd and intended or designed to elicit a sexual response.” Department of Defense Directive-Type Memorandum, “Sale or Rental of Sexually Explicit Material on DoD Property” (Dec. 22, 1996). This memorandum also establishes the “Resale Activities Board of Review,” which hás “the authority and responsibility to periodically review material offered or to be offered for sale or rental” at exchanges, and to determine whether such material is “sexually explicit” as defined by the memorandum. Id. The court below granted appellee’s request for permanent injunctive relief on the basis that the Act violated the Free Speech" }, { "docid": "402068", "title": "", "text": "in a lascivious way.” 10 U.S.C. § 2489a(d). Appellees suggest that this construction targets a viewpoint portraying “women as sexual beings or as the focus of sexual desire,” as well as a viewpoint of “lasciviousness.” Appellees’ Brief at 25. Even apart from the absence of any references to gender in the Act or its implement ing directive, we find this line of argument unconvincing. To conceive of lasciviousness as a “specific premise” or “a standpoint from which a variety of subjects may be discussed and considered” strikes us as linguistic overreaching; how, for example, would one go about discussing and considering the political issues of the day from a lascivious viewpoint? The adjective “lascivious” is much more plausibly understood as helping to identify more particularly the subject matter content) that the Act encompasses: namely, depictions of nudity including sexual or excretory activities or organs, but only those depictions that are also lascivious. We note that the Supreme Court has suggested in dicta, but in an opinion that strictly applied the Constitution’s prohibition against viewpoint discrimination, that “[a] State might choose to prohibit only that obscenity which is the most patently offensive in its prurience, ie., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages.” R.A.V., 505 U.S. at 388, 112 S.Ct. at 2546. Thus prurience and patent offensiveness are apparently permissible grounds on which to discriminate — and by implication, they do not constitute “viewpoints” (against which the government may not discriminate). Insofar as R.A.V. equates prurience and patent offensiveness with “lascivious displays of sexual activity,” lasciviousness too is impliedly not a “viewpoint.” Other Supreme Court precedents construing the First Amendment support, by analogy, the reasoning that a distinction based on lasciviousness is viewpoint neutral. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 3165, 92 L.Ed.2d 549 (1986) (school’s sanctions “in response to [respondent’s] offensively lewd and indecent speech” were permissible, given that “the penalties imposed in this case were unrelated to any political viewpoint”); Board of" }, { "docid": "402103", "title": "", "text": "Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. It reasoned that because the purpose of the Act was to ban expression that the government conceded was “offensive” and “because the First Amendment prevents the government from banning material solely because it is offensive,” the Act was unconstitutional. The district court did not decide whether a military exchange is a public or nonpublic forum, nor whether the Act was viewpoint discriminatory. I agree with the majority that, as these issues are questions of law, we are equally well positioned to decide them. However, that is where my agreement with the majority ends. I would affirm the district court’s opinion. I. The Military Honor and Decency Act of 1996 does not prohibit the distribution of all sexually explicit material in military exchanges. Nor does it ban all depictions of nudity. Instead, it bars only the distribution of sexually explicit material, “the dominant theme of which depicts or describes nudity ... in a lascivious way.” Because I believe this is viewpoint discrimination, and the government has failed to meet its burden of justification for this restriction on speech, I respectfully dissent. The Act’s definition of sexually explicit material includes within its scope much that is not encompassed within the Supreme Court’s definition of “obscenity,” which enjoys virtually no First Amendment protection. To be “obscene” under Miller v. California, 413 U.S. 15, 98 S.Ct. 2607, 37 L.Ed.2d 419 (1973), a publication must (a) taken as a whole and applying contemporary community standards, appeal to the prurient interest, (b) contain patently offensive depictions or descriptions of specified sexual conduct, and (c) on the whole have no serious literary, artistic, political or scientific value. Id. at 24-25, 93 S.Ct. at 2614-16. See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 497, 105 S.Ct. 2794, 2798, 86 L.Ed.2d 394 (1985). The Act does not refer to the prurient interest or to the standards of the community. Nor does it require that the work lack literary, artistic, political or scientific value. The Act therefore covers both protected and unprotected speech. See" }, { "docid": "6163015", "title": "", "text": "see also Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (invalidating a ban on residential picketing that exempted labor picketing); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 1559, 26 L.Ed.2d 44 (1970) (invalidating a law that allowed wearing military uniforms only in dramatic portrayals that did not “tend to discredit the military”). The First Amendment forbids the government from “restricting] expression because of its message [or] its ideas.” Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint. The decision of the district court is affirmed. AFFIRMED. . Although Sigma Chi’s national fraternity is not involved in the litigation, the IOTA Chapter XI is hereafter referred to as \"Sigma Chi” or “the Fraternity.” . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. . 10 U.S.C. § 772© provides: While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force. . At least eight justices agreed that First Amendment protection extends to nude dancing, but they differed in their approaches to defining that protection. Justice Rehnquist, writing for a plurality, relied on the four-part test announced in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). He concluded that the Indiana statute prohibiting public nudity was constitutional because it was unrelated to the suppression of speech, infringed" }, { "docid": "402122", "title": "", "text": "if the military still remained genuinely concerned about the mere possibility of the appearance of approval, it could easily place a sign above the materials stating that “The Military Disapproves The Sale Of All Sexually Explicit Material Depicting Nudity In A Lascivious Way.” The majority’s concern that “if sparseness of legislative history were a basis for invalidation of acts of Congress, a wide swath of legislation could fall before the judicial axe,” ante at 283, is overstated. Clearly, lack of legislative history is not a basis on which to strike down an Act of Congress. In the first place the purpose of many legislative enactments and the manner in which the legislation furthers the purpose are obvious from their text. Furthermore, not every Act of Congress trammels on constitutional rights. When a legislature interferes with constitutional rights, however, it is neither unreasonable nor contrary to authority to require some sort of legislative determination that the infringement of the constitutional right was necessary to further the government interest advanced. See, e.g., Sable Communications, 492 U.S. at 129-30, 109 S.Ct. at 2838 (holding that a ban on indecent telephone messages violated the First Amendment, and noting that “aside form eonclusory statements during the debates by proponents of the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the congressional record presented to us contains no evidence as to how effective or ineffective the FCC’s most recent regulations might prove to be”); Reno v. ACLU, — U.S. -, - n. 24, 117 S.Ct. 2829, 2338 n. 24, 138 L.Ed.2d 874 (1997) (holding that the “indecent transmission” and “patently offensive display” provisions of the Communications Decency Act of 1996 violated the First Amendment, the Court pointed to the fact that “[n]o hearings were held on the provisions that became law.”). Cf. Giano v. Senkowski, 54 F.3d 1050, 1058-62 (2d Cir.1995) (Calabresi, J., dissenting). In this case, the government simply advances post-hoc rationalizations which find no support in Congressional history or military consideration. To rely on the mere fact that a statute has been enacted as evidence" }, { "docid": "402048", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: In this appeal, we address whether Congress exceeded its constitutional authority in banning the sale or rental of “sexually explicit materials” by military personnel acting in an official capacity, including the sale or rental of such materials by “military exchanges.” The United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge) enjoined enforcement of the Military Honor and Decency Act of 1996, 10 U.S.C. § 2489a (the “Act”), after concluding that it violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. General Media Communications, Inc. v. Perry, 952 F.Supp. 1072 (S.D.N.Y.1997). Heeding the Supreme Court’s admonition that “judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged,” Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981), we hold that Congress acted well within its constitutional authority to regulate official military conduct. Congress has not banned sexually explicit magazines and videos — soldiers and sailors may still buy them elsewhere, receive them by mail, and read or watch them; Congress has decided only that the military itself will not be in the business of selling or renting these items to servicemembers. The appel-lees, who include publishers and producers of sexually explicit materials, argue that their free speech rights will be abridged if the military stops selling and renting their products. But military exchanges are not public streetcorners; they are not available for everyone to “speak” from their shelves. These stores are nonpublic forums in which the government may restrict the content of speech, so long as the restriction is reasonable and it does not discriminate among particular viewpoints. Congress has regulated the military’s purchase and resale of materials constituting a particular subject matter— lascivious depictions of nudity including sexual or excretory activities or organs — not those reflecting particular viewpoints. This policy avoids the appearance that the military, by selling sexually explicit materials in military exchanges, endorses" }, { "docid": "402109", "title": "", "text": "Act excludes such depictions of both men and women: the exclusion of “an entire class of viewpoints” is “just as offensive to the First Amendment as exclusion of only one.” Rosenberger, 515 U.S. at 831, 115 S.Ct. at 2518. If multiple voices are silenced, the debate is simply skewed in multiple ways. Id. Nor is this form of expression any less deserving of protection because it may work through “inexpressible emotions,” Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788-89, 29 L.Ed.2d 284 (1971). Just as words may be chosen for their emotive force, id,., so too visual pictures can be chosen for their ability to arouse or offend. By restricting the sale of depictions which some viewers find offensive and others titillating, the government favors and protects the viewpoint of those offended and restrict the viewpoint of those who are titillated. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 2545, 105 L.Ed.2d 342 (1989). Indeed, the government’s defense of the statute unmasks the Act’s viewpoint discrimination. The government asserts that the statute serves the government’s interest in preserving “the military’s image of honor, professionalism, and proper decorum.” The underlying premise is that the military’s distribution of depictions of nudity that are lewd or intended to elicit a sexual response are inconsistent with “honor, professionalism, and proper decorum.” Yet the decision to ban distribution of such material strips military personnel of the right to decide for themselves whether such depictions are consistent with those values. It even arguably denies them the right to determine which displays of nudity are lascivious. “At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 2458, 129 L.Ed.2d 497 (1994); see also Board of Educ. v." } ]

[ { "docid": "21958339", "title": "", "text": "statutes should be consistent. Consequently, we hold that the correct measure of damages for lost insurance benefits in FMLA cases is either actual' replacement cost for the insurance, or expenses actually incurred that would have been covered under a former insurance plan. The lost “value” of benefits, absent actual costs to the plaintiff, is not recoverable. Here, because the jury awarded an undifferentiated sum for employee benefits without segregating insurance benefits, and the award was based on an incorrect understanding of FMLA remedies, we must remand to the district court for rede-termination of this damage element. E. Offsetting the amount of retirement plan payout Finally, the City argues that the district court should have offset the amount of Lubke’s retirement plan payout, which he received at termination, against his damage award. As a threshold matter, Lubke argues that the City waived its offset argument by not pleading it as an affirmative defense, pursuant to Fed.R.CivP. 8(c). Regardless whether the City pled offset, however, both parties addressed the issue in their pretrial motions in limine. Lubke was on notice of the City’s position and suffered no prejudice by the absence of a formal initial pleading. Giles v. General Elec. Co., 245 F.3d 474, 494 n. 36 (5th Cir .2001). An employer’s portion of retirement and other payments made to a terminated employee must be deducted from an award of lost wages and benefits in ADEA discrimination cases. See Brunnemann, 975 F.2d at 179 n. 7 (noting that “a deduction is allowed for sums received from retirement benefits” upon termination); Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 209-10 (5th Cir.1986) (holding that “Guthrie’s back pay award should be reduced by payments received from Penney’s retirement fund”). The City ar gues that this rule should apply in FMLA cases. The district court, on the other hand, adopted the rationale used in personal injury tort cases and applied the collateral source rule. See Haughton v. Blackships, Inc., 462 F.2d 788 (5th Cir. 1972). Where the City is being sued in its capacity as an employer, not as a tortfea-sor, the ADEA discrimination" } ]

[ { "docid": "19350602", "title": "", "text": "trial so that he or she is prepared to properly litigate it” (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971))); Jones v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir. Unit B 1981). On appeal, Fluor contends it implicitly pled the borrowed servant doctrine in its answer by claiming an affirmative defense under the AWCA’s exclusivity provisions, because the only basis for asserting an affirmative defense under the AWCA’s exclusivity provisions would have been under the theory that Lawrence was a borrowed servant of Solutia and thus a co-employee of Proctor. Fluor also contends that Proctor had other notice of the defense and was not prejudiced. The district court concluded that Fluor had not actually pled the defense and thus waived the defense “regardless of whether the Plaintiff realized, recognized, or inquired as to facts that may give rise to such a defense .... ” The district court said nothing about, much less made a finding about, whether Proctor, in fact, either had notice of Fluor’s borrowed servant defense or would be surprised and prejudiced. Instead, the district court considered Proctor’s notice of the defense to be unimportant. We conclude that, given the circumstances presented in this case, the district court abused its discretion by concluding that Fluor waived the borrowed servant defense by failing to plead it separately in its answer. The general rule of waiver is more easily applied when a party fails to set forth one of the nineteen defenses specifically listed in Rule 8(c); waiver becomes less clear when a party fails to assert affirmatively some “other matter” that pre-existing federal case law has not clearly construed as “constituting an avoidance or affirmative defense” under Rule 8(c). Here, we can find no pre-existing federal case law in this Circuit discussing Alabama’s borrowed servant doctrine under the federal rule. Moreover, although we make no determination about the validity of Fluor’s “implicit pleading” argument, we do note that the results in some Aabama cases arguably support Fluor’s contention that, because its putative servant Lawrence" }, { "docid": "23319517", "title": "", "text": "physical and emotional damage borne by Hassan. Therefore, we conclude that the collateral source payments argument falls within the scope of Rule 8(c), and that the government erred in not including this issue in the pleadings as an affirmative defense. Nonetheless, we do not find that the district court improperly considered the evidence on collateral source payments. Admittedly, the general rule is that, when a party fails to raise an affirmative defense in the pleadings, that party waives its right to raise the issue at trial. See American National Bank v. Federal Deposit Insurance Corp., 710 F.2d 1528, 1537 (11th Cir.1983). However, the liberal pleading rules established by the Federal Rules of Civil Procedure apply to the pleading of affirmative defenses. We must avoid hypertechni-cality in pleading requirements and focus, instead, on enforcing the actual purpose of the rule. The purpose of Rule 8(c) is simply to guarantee that the opposing party has notice of any additional issue that may be raised at trial so that he or she is prepared to properly litigate it. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). When a plaintiff has notice that an affirmative defense will be raised at trial, the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff any prejudice. And, when the failure to raise an affirmative defense does not prejudice the plaintiff, it is not error for the trial court to hear evidence on the issue. See Bull’s Corner Restaurant v. Director of the Federal Emergency Management Agency, 759 F.2d 500, 502 (5th Cir.1985); see also Jones v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir. Unit B 1981) (“Failure to affirmatively plead the defense is simply noncompliance with a technicality and does not constitute a waiver where there is no claim of surprise.”) (dicta) (citation omitted). In the case before us, it is clear that there was no prejudice to Hassan. Long before the trial, the government deposed Hassan and questioned her extensively about the collateral source payments she received. In addition," }, { "docid": "21800663", "title": "", "text": "result in unfair surprise,” then a “technical failure to comply precisely with Rule 8(c) is not fatal.” Id. at 417 (quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983) (per curiam)). Because Rule 8(c)’s purpose is to give the plaintiff fair notice, we recognize “some play in the joints.” Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir. 2008). A defendant thus avoids waiver if (1) the defendant raised the affirmative defense “at a pragmatically sufficient time,” and (2) the plaintiff “was not prejudiced in its.ability to respond.” Lucas, 807 F.2d at 418 (quotation mark omitted) (quoting Allied Chem., 695 F.2d at 856); see also 2 Moore’s Federal Practice § 8.08[3] (3d ed. 2016). ThermoTek got -fair, notice. It learned of the preemption defense at a pragmatically sufficient time and suffered no prejudice. The preemption issue first surfaced at the summary judgment stage before discovery closed and nearly two years before trial. And, in denying the motion to reconsider its summary judgment-order, the district court noted that it could “consider a preemption challenge to ThermoTek’s unfair competition claim by motion for judgment as a matter of law and by post-judgment motion, if necessary, assuming ThermoTek prevails on that claim at trial.” The parties therefore had two years’ notice that preemption was on the table. Preemption resurfaced closer to and during trial. After the parties had engaged in substantial additional discoveiy—and still before trial—Wilford and Thermo Compression raised copyright and patent law preemption in the parties’ joint proposed pretrial order. Wilford and Thermo Compression raised those defenses again in Rule 50 motions at-the close of both cases-in-chief. See Fed. R. Civ. P. 50. The charge conference also addressed preemption. All this was enough to meet our “sufficiently pragmatic” requirement. We have repeatedly rejected waiver arguments when a defendant raised an affirmative defense for the first time at summary judgment—or even later. See, e.g., Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009) (no waiver when defendant first raised affirmative defense of qualified immunity in summary judgment motion filed two months before discovery was" }, { "docid": "1918619", "title": "", "text": "We now address whether the district court properly held that Knoblauch waived his defense of qualified immunity by failing to raise the defense until the motion for summary judgment. This is an issue of law over which we have jurisdiction under the collateral order doctrine. See Eddy, 256 F.3d at 209 (finding that the collateral order doctrine permitted review of the district court’s determination that qualified immunity was waived as untimely under Rule 8(c)). We conclude that the district court applied the incorrect legal standard for deciding whether an affirmative defense was waived. As an affirmative defense, qualified immunity must be pled and proved by the defendant. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Fed. R. Civ. P. 8(e). Generally, under Rule 8(c) affirmative defenses must be raised in the first responsive pleading. However, “[w]here the matter is raised in the trial court in a manner that does not result in unfair surprise ... technical failure to comply precisely with Rule 8(c) is not fatal.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir.1983). An affirmative defense is not waived if the defendant “raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” Id. at 856. We have noted that a failure to plead an affirmative defense in the first response is “especially excusable” where the law on the topic is not clearly settled. See Johnson v. Johnson, 385 F.3d 503, 516 n. 7 (5th Cir.2004). Despite referencing the above law, the district court found waiver based solely on the fact that a fifty-two month delay existed between Knoblauch’s first responsive pleading and his assertion of qualified immunity. The district court concluded that Pasco was presumptively prejudiced by this delay, without any analysis or description of the prejudice. However, under Rule 8(c) we do not take a formalistic approach to determine whether an affirmative defense was waived. Rather, we look at the overall context of the litigation and have found no waiver where no evidence of prejudice exists and sufficient time" }, { "docid": "14377590", "title": "", "text": "asserted because rather than denying the motion, he granted Williams leave to amend her complaint in response to the defendants’ motion. Williams asserts that the state judge abused his discretion in allowing the defense to be asserted. Though she does not develop the argument, she points to our decision in Venters v. City of Delphi, 123 F.3d 956 (7th Cir.1997). In Venters, the district judge allowed assertion of a limitations defense even though the defendants raised it for the first time in a reply memorandum in support of their summary judgment motion, on the eve of oral argument. Id. at 968. We reversed because the plaintiff was prejudiced by the defendants’ delay as the delay effectively “deprived [her] of any reasonable opportunity to address that defense.” Id. By permitting the defendant to raise the issue at the eleventh hour and giving the plaintiff almost no time to respond, we concluded the district court had “bushwhacked” the plaintiff. See id. at 969. In contrast, the state, judge here gave Williams time to respond to the defendants’ limitations defense. The purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Thus, where the plaintiff has an opportunity to respond to a late affirmative defense, he cannot establish prejudice merely by showing that the case has progressed significantly since the defendants answered his complaint. See Jackson, 213 F.3d at 393; Brinkley v. Harbour Recreation Club, 180 F.3d 598, 612 (4th Cir.1999); Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir.1993); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir.1993); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1374 (3d Cir.1993). Because Williams does not suggest any prejudice to her from the defendants’ delay other than her subsequent preparation for trial, the court did not abuse its discretion in allowing the defense. AFFIRMED." }, { "docid": "1918620", "title": "", "text": "Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir.1983). An affirmative defense is not waived if the defendant “raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” Id. at 856. We have noted that a failure to plead an affirmative defense in the first response is “especially excusable” where the law on the topic is not clearly settled. See Johnson v. Johnson, 385 F.3d 503, 516 n. 7 (5th Cir.2004). Despite referencing the above law, the district court found waiver based solely on the fact that a fifty-two month delay existed between Knoblauch’s first responsive pleading and his assertion of qualified immunity. The district court concluded that Pasco was presumptively prejudiced by this delay, without any analysis or description of the prejudice. However, under Rule 8(c) we do not take a formalistic approach to determine whether an affirmative defense was waived. Rather, we look at the overall context of the litigation and have found no waiver where no evidence of prejudice exists and sufficient time to respond to the defense remains before trial. See Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir.2001) (finding no waiver where a new affirmative defense was raised in a joint pretrial order over a year after complaint was filed); Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir.2006) (finding no waiver where a defense was raised in a pretrial motion in limine two years after the complaint was filed and just weeks before trial); Allianz Versicherungs, AG v. Profreight Brokers, Inc., 99 Fed.Appx. 10, 12 (5th Cir.2004) (unpublished) (finding no waiver because “[t]he fact that [the plaintiff] had three months to consider and prepare for the limitations defense ... refutes [the] assertion that it was prejudicially surprised .... ”). This is consistent with the Supreme Court’s inter pretation of the purpose of Rule 8(c), which is to give the opposing party notice of the affirmative defense and a chance to argue why it should not apply. See Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct." }, { "docid": "18724268", "title": "", "text": "plaintiff filed the claim objection and this adversary proceeding which defendants now seek to have dismissed. Plaintiff urges that the defendants’ failure to raise the affirmative defense of res judicata in the answer constitutes waiver of that defense. Federal Rule of Civil Procedure 8(c), made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure (FRBP) 7008(a), provides that, [i]n pleading to a preceding pleading, a party shall set forth affirmatively ... res judicata ... and any other matter constituting an avoidance or affirmative defense. Although the general rule is that failure to raise such a defense in the answer constitutes waiver of that defense, the Eleventh Circuit has expressed its reluctance to follow strictly the harsh waiver rule where the plaintiff is unable to demonstrate prejudice. Easterwood, v. CSX Transportation, Inc., 933 F.2d 1548, 1551 (11th Cir.1991) aff'd — U.S. -, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The purpose of Rule 8(c) is to guarantee that the opposing party has notice of any additional issue that may be raised at trial in order for the parties to have ample opportunity to prepare for and litigate the issue. Hassan v. U.S. Postal Service, 842 F.2d 260, 263 (11th Cir.1988), citing Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). Plaintiff has failed to establish any prejudice, having merely stated that it is prejudiced by this defense, and has had adequate notice and opportunity to address the issue of res judi-cata, claim — preclusion, in response to the motion to dismiss. Plaintiff relies on the technical failure of the defendants’ answer to include this affirmative defense. Where an opposing party asserts the technical failure of the pleadings to include the affirmative defense in the answer, the court may give a party leave to amend the answer under Federal Rule of Civil Procedure 15(a) (FRBP 7015) to include the omitted defense. East-erwood, supra. Considering the notice and opportunity plaintiff has had to prepare for and respond to the assertion of this defense, the apparent lack of prejudice to plaintiff," }, { "docid": "1918621", "title": "", "text": "to respond to the defense remains before trial. See Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir.2001) (finding no waiver where a new affirmative defense was raised in a joint pretrial order over a year after complaint was filed); Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir.2006) (finding no waiver where a defense was raised in a pretrial motion in limine two years after the complaint was filed and just weeks before trial); Allianz Versicherungs, AG v. Profreight Brokers, Inc., 99 Fed.Appx. 10, 12 (5th Cir.2004) (unpublished) (finding no waiver because “[t]he fact that [the plaintiff] had three months to consider and prepare for the limitations defense ... refutes [the] assertion that it was prejudicially surprised .... ”). This is consistent with the Supreme Court’s inter pretation of the purpose of Rule 8(c), which is to give the opposing party notice of the affirmative defense and a chance to argue why it should not apply. See Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Here, though Knoblauch raised qualified immunity fifty-two months after the complaint was filed, substantial time remained before trial for Pasco to respond to the defense. Knoblauch asserted qualified immunity two months before discovery was due and six months before the pretrial conference. Pasco submitted a full response to the defense to the district court and has briefed it on appeal to this court. No evidence indicates that Pasco was prejudiced by the late assertion or that Knoblauch intentionally delayed raising the defense to prejudice Pasco. On the contrary, the record indicates the delay resulted from the lengthy procedural history of this case (including numerous stays, which totaled twenty-nine months while the first two appeals were pending), combined with significant developments following the appeal in Pasco II. One such development occurred when Pasco abandoned the claim, on appeal in Pasco II, that Roy Pasco died from blunt trauma injuries inflicted by the police after he walked away from the crash. Further, a major legal development occurred when the Supreme Court handed" }, { "docid": "19350601", "title": "", "text": "So.2d 892, 896-97 (Ala.1995). Thus, we accept that the borrowed servant doctrine is an affirmative defense covered by Rule 8(c) in this case. In general, a party’s failure to raise an affirmative defense in the pleadings results in a waiver of the defense. See Steger, 318 F.3d at 1077. In deciding waiver issues under Rule 8(c), this Court in some cases has examined whether a plaintiff had notice of the unpled defense or was prejudiced by the lack of notice. See Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1321 n. 4 (11th Cir.2006) (concluding that a plaintiff is not prejudiced by a defendant’s failure to comply with Rule 8(c) if the plaintiff has notice of the affirmative defense by some other means), cert. denied, — U.S. —, 127 S.Ct. 2139, 167 L.Ed.2d 871 (2007); Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir.1989) (same); Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.1988) (examining whether “the opposing party has notice of any additional issue that may be raised at trial so that he or she is prepared to properly litigate it” (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971))); Jones v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir. Unit B 1981). On appeal, Fluor contends it implicitly pled the borrowed servant doctrine in its answer by claiming an affirmative defense under the AWCA’s exclusivity provisions, because the only basis for asserting an affirmative defense under the AWCA’s exclusivity provisions would have been under the theory that Lawrence was a borrowed servant of Solutia and thus a co-employee of Proctor. Fluor also contends that Proctor had other notice of the defense and was not prejudiced. The district court concluded that Fluor had not actually pled the defense and thus waived the defense “regardless of whether the Plaintiff realized, recognized, or inquired as to facts that may give rise to such a defense .... ” The district court said nothing about, much less made a finding about, whether Proctor, in fact," }, { "docid": "12232318", "title": "", "text": "defendant may raise an affirmative defense for the first time in a dispositive motion, or whether failure to raise the defense in pleadings constitutes forfeiture under Rule 8(e). The language of Rule 8(c) itself requires that the defense of statute of limitations be raised affirmatively in “a pleading to a preceding pleading.” Fed. R.Crv.P. Rule 8(c). Although the Rules do not explicitly mention waiver or forfeiture as the consequence of failure to follow Rule 8(c), it is well-settled that “[a] party’s failure to plead an affirmative defense ... generally ‘results in the waiver of that defense and its exclusion from the case.’ ” Dole v. Williams Enterprises, Inc., 876 F.2d 186, 189 (D.C.Cir.1989) (emphasis in original, quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (1990)). More specifically, “[rjeliance on a statute of limitations is an affirmative defense and is waived if a party does not raise it in a timely fashion.” Banks v. Chesapeake and Potomac Telephone Co., 802 F.2d 1416, 1427 (D.C.Cir.1986) (citations omitted). The Supreme Court has explained that the purpose of the pleading requirement of Rule 8(c) “is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate.” Blonder-Tongue Lab. v. University of Illinois Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). The same rationale the Court invoked regarding collateral estoppel applies with equal or greater force to the defense of the statute of limitations, where a party may require notice and time not only to frame legal arguments, but to establish relevant facts that might affect the applicability of the statute of limitations. The pleading requirement of Rule 8(c) gives the opposing party notice of the defense of untimeliness and permits the party to develop in discovery and to argue before the District Court various responses to the affirmative defense. These responses could include, for example, facts and legal arguments that require the tolling of the statute, whether by action of law, by agreement of the" }, { "docid": "23351740", "title": "", "text": "arrived at the scene, saw Curry strike Lynch in the face. Eventually Curry, who had been told repeatedly to desist, was cuffed, pinned. Curry was struck with a radio in the chest, etc. Curry should not have assaulted the police officers. Based on these findings, the ALJ recommended that Curry be incarcerated for a period of 18 months. The district court accorded collateral estoppel effect to the ALJ’s finding that Curry struck Lynch. Curry argues this was error. First, Curry argues that Lynch waived his right to assert collateral estoppel because he did not plead collateral estoppel as an affirmative defense, and only raised the issue for the first time in a supplemental memorandum filed after the motion for summary judgment was already pending. Under Fed.R.Civ.P. 8(c), collateral estoppel, like res judicata, is an affirmative defense. As such, it normally must be pled in a timely manner or it may be waived. See, e.g., Pangburn v. Culbertson, 200 F.3d 65, 68 n. 1 (2d Cir.1999). However, we have previously upheld a district court’s dismissal of a case on collateral estoppel grounds even where collateral es-toppel was not raised as an affirmative defense in the answer, but was raised by the district court sua sponte, without permitting the party against which it was asserted an opportunity to argue the issue. See Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir.1998) (“Although the district court raised the issue of collateral estoppel sua sponte, this decision does not require reversal.”). In so doing, we relied on “the strong public policy in economizing the use of judicial resources by avoiding relit-igation.” Id. The Supreme Court has stated that the purpose of requiring collateral estoppel to be pled as an affirmative defense “is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate.” Blonder-Tongue Labs. v. Univ. Of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Here, Lynch raised the defense of collateral estoppel in the reply memorandum filed in response to" }, { "docid": "21800664", "title": "", "text": "preemption challenge to ThermoTek’s unfair competition claim by motion for judgment as a matter of law and by post-judgment motion, if necessary, assuming ThermoTek prevails on that claim at trial.” The parties therefore had two years’ notice that preemption was on the table. Preemption resurfaced closer to and during trial. After the parties had engaged in substantial additional discoveiy—and still before trial—Wilford and Thermo Compression raised copyright and patent law preemption in the parties’ joint proposed pretrial order. Wilford and Thermo Compression raised those defenses again in Rule 50 motions at-the close of both cases-in-chief. See Fed. R. Civ. P. 50. The charge conference also addressed preemption. All this was enough to meet our “sufficiently pragmatic” requirement. We have repeatedly rejected waiver arguments when a defendant raised an affirmative defense for the first time at summary judgment—or even later. See, e.g., Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009) (no waiver when defendant first raised affirmative defense of qualified immunity in summary judgment motion filed two months before discovery was due and six months before the pretrial conference); Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000) (no waiver where defendants first raised affirmative defense of res judicata in summary judgment motion and plaintiffs had fourteen months to respond and filed three responsive briefs during that period); Allied Chem., 695 F.2d at 855-56 (no waiver where defendant first raised affirmative defense of usury in motion for summary judgment and the defense appeared in the pretrial order); Lucas, 807 F.2d at 417-18 (no waiver when the government first raised affirmative defense of a statutory damages cap at trial immediately after expert testimony on damages). In fact, we have recognized that sometimes a preemption defense is most suitably raised after the defendant answers the complaint. See Fisher v. Halliburton, 667 F.3d 602, 610 (5th Cir. 2012) (“Unless the complaint itself establishes the applicability of a federal-preemption defense—in which case the issue may properly be the subject of a Rule 12(b)(6) motion'—a defendant should ordinarily raise preemption in a Rule 12(c) motion for judgment on" }, { "docid": "1918615", "title": "", "text": "motion to strike. Knoblauch appeals the denial of summary judgment. II We review the district court’s denial of summary judgment predicated on qualified immunity de novo. Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir.2004). In an interlocutory appeal in which the defendant asserts qualified immunity, if the district court found that factual disputes exist we accept the plaintiffs version of the facts as true to the extent supported by the summary judgment record. Id. Knoblauch appeals the district court’s order denying his motion for summary judgment based on qualified immunity. In this order, as well as in the memorandum opinion explaining the reasons for the denial, the district court also granted Pasco’s motion to strike the affirmative defense as waived. Despite this somewhat confusing posture, it is clear that the district court denied summary judgment because it found Knoblauch had waived the defense, and also because it concluded that qualified immunity would not protect Knoblauch from suit since he violated clearly established Fourth Amendment law. Importantly, the district court based both determinations on conclusions of law. Therefore, we will review the waiver issue and the Fourth Amendment issue de novo since both form the basis for the denial of summary judgment. See, e.g., Murray v. Crossmark Sales, Inc., 163 Fed.Appx. 339, 341-42 (5th Cir.2006) (unpublished) (reviewing de novo the district court’s sum mary judgment conclusion that an affirmative defense was not waived under Fed. R. Civ. P. 8(c)); Eddy v. Virgin Islands Water and Power Auth., 256 F.3d 204, 208-09 (3d Cir.2001) (reviewing de novo the district court’s summary judgment conclusion that qualified immunity was waived because it was not raised in the first responsive pleading, and observing that “[i]f we have jurisdiction to review an order rejecting qualified immunity at the summary judgment stage, our review of the order is plenary”). Ill A We first consider our jurisdiction to hear this interlocutory appeal. Generally, denials of summary judgment are not final orders. See Mendenhall v. Riser, 213 F.3d 226, 229 (5th Cir.2000). However, the denial of qualified immunity on summary judgment is immediately appealable under the" }, { "docid": "19940794", "title": "", "text": "around the business entities, that is McDorman was not \"individually” kiting checks. The footnote cannot be fairly read as meaning that the affirmative defenses would not apply to him. . See Bull's Comer Rest., Inc. v. Dir. of FEMA, 759 F.2d 500, 502 (5th Cir.1985) (finding no waiver where defendant pled substance of policy exclusion as an affirmative defense even though the policy exclusion was not pled by name), superceded in pan by mle on other grounds, Fed.R.Civ.P. 52(a). . Compare Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir.2006) (\"Regardless whether the City pled offset, however, both parties addressed the issue in their pretrial motions in limine. Lubke was on notice of the City’s position and suffered no prejudice by the absence of a formal initial pleading.”), reh’g denied, 473 F.3d 571 (5th Cir.2006); Giles v. General Electric, 245 F.3d 474, 492 (5th Cir.2001) (concluding the plaintiff was not \"unfairly surprised” where the affirmative defense was addressed in the pretrial order and the court held a hearing on the issue pretrial), with Morris v. Homco Int’l, Inc., 853 F.2d 337, 343 (5th Cir.1988) (finding waiver where the district court raised an affirmative defense \"in drafting its opinion months after trial”); Ingraham, 808 F.2d at 1078-80 (concluding the Government waived a statutory defense by raising it for the first time after trial). .Directors' discussion of the \"prejudice” and \"confusion” caused by Defendants’ in pari delicto defense focused on waiver, and cannot be fairly read as appealing the district court's evidentiary rulings. Indeed, Rule 403 is not mentioned. See Fed.R.Evid. 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.”). As such, Directors abandoned any ''evidentiary” arguments. See, e.g., Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir.1997) (\"All issues not briefed are waived.”). . See Pinto Trucking Serv., 649 F.2d at 534 (raising the defense at the \"eleventh-hour” prevented plaintiff from taking discovery on the" }, { "docid": "22372639", "title": "", "text": "that the government did not waive its AEDPA statute of limitations defense, thus implying that government waiver is possible); Samuel v. Duncan, 1996 WL 413632, 92 F.3d 1194 (9th Cir.1996) (table) (unpublished opinion) (AEDPA statute of limitations defense can be waived). We join these courts of appeals and now hold that because the AEDPA limitations period is subject to equitable modifications such as tolling, it is also subject to other non-jurisdictional, equitable considerations, such as waiver. B. Parties are generally required to assert affirmative defenses early in litigation, so they may be ruled upon, prejudice may be avoided, and judicial resources may be conserved. Habeas proceedings are no exception. Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts (the “Habeas Rules”) makes the Federal Rules of Civil Procedure applicable to habeas petitions to the extent they are not inconsistent with the Habeas Rules. Federal Rule of Civil Procedure 8(c) requires that a defendant plead an affirmative defense, such as a statute of limitations defense, in his answer. Rule 8(c) states: Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense. Fed.R.Civ.P. 8(c). The purpose of requiring the defendant to plead available affirmative defenses in his answer is to avoid surprise and undue prejudice by providing the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); see also Williams v. Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir.1995) (“The purpose of Rule 8(c) is to give the court and the other parties fair warning that a particular line of defense will be pursued.”); Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir.1989) (“The Supreme Court has held that the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it.”) (citing Blonder-Tongue); Marino v. Otis Eng’g Corp.," }, { "docid": "16492773", "title": "", "text": "(affirmative defense of statute of limitations is waived if not pleaded). The Supreme Court has held that the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). Thus, if a plaintiff receives notice of an affirmative defense by some means other than pleadings, “the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.” Hassan v. U.S. Postal Service, 842 F.2d 260, 263 (11th Cir.1988). When there is no prejudice, the trial court does not err by hearing evidence on the issue. Id. Preferred raised the statute of limitations defense in a motion for summary judgment filed in August of 1988, approximately one month before trial. As a result, plaintiff was fully aware that Preferred intended to rely on a statute of limitations defense. Further, plaintiff does not assert any prejudice from the lateness of the pleading. Under these circumstances, the district court correctly addressed the statute of limitations issue on the merits. See Hassan, 842 F.2d at 263. Preferred argues that the district court erred in denying its motion for judgment notwithstanding the verdict on plaintiff’s fraud claim because the evidence clearly indicated that the statute of limitations barred that claim. In considering a motion for judgment notwithstanding the verdict, both the trial and appellate courts must consider all of the evidence in the light most favorable to the party opposing the motion. This Court asks whether reasonable people could have differed based upon the evidence submitted. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1044-45 (11th Cir.1989) (quoting Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc)). The statute of limitations for fraud in Alabama is set out in Ala.Code Ann. § 6-2-3. Under that section, a plaintiff has two years from the date he discovers or should be aware of the fraud in which to file a fraud claim. Thus, Section 6-2-3 is actually a “tolling” statute: the limitations" }, { "docid": "23418474", "title": "", "text": "particular line of defense will be pursued. See, e.g., Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453-54, 28 L.Ed.2d 788 (1971); Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st Cir.1994). Hence, a defendant who fails to assert an affirmative defense at all, or who asserts it in a largely uninformative way, acts at his peril. See, e.g., FDIC v. Ramirez-Rivera, 869 F.2d 624, 626 (1st Cir.1989). In determining whether general, non-specific language in a defendant’s answer, as was used here, suffices to preserve an affirmative defense, an inquiring court must examine the totality of the circumstances and make a practical, commonsense assessment about whether Rule 8(c)’s core purpose — to act as a safeguard against surprise and unfair prejudice — has been vindicated. In this case, USF & G complied with the spirit, if not the letter, of Rule 8(c). Well before the close of discovery — and six months prior to the filing of the cross-motions for summary judgment — USF & G wrote to appellants and amplified its position, asseverating that count 2 should be dismissed under Rule 12(b)(6) because ERISA preempted section 29. In the papers accompanying the cross-motions for summary judgment, both sides briefed the preemption issue. Thus, no ambush occurred. Where, as here, a plaintiff clearly anticipates that an issue will be litigated, and is not unfairly prejudiced when the defendant actually raises it, a mere failure to plead the defense more particularly will not constitute a waiver. See Conjugal Partnership, 22 F.3d at 401; Lucas v. United States, 807 F.2d 414, 418 (5th Cir.1986). Fourth: Appellants’ final attempt to resuscitate their claim against USF & G is hardly worth mentioning. It involves the resupinate assertion that the Supremacy Clause of the Federal Constitution, U.S. Const, art. VI, cl. 2, bars preemption of section 29. This assertion is doubly flawed. For one thing, it is new to the case, having been alluded to, but not developed below, and accordingly, it is proeedurally defaulted. See, e.g., McCoy, 950 F.2d at 22 (“It is" }, { "docid": "22372640", "title": "", "text": "states: Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense. Fed.R.Civ.P. 8(c). The purpose of requiring the defendant to plead available affirmative defenses in his answer is to avoid surprise and undue prejudice by providing the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); see also Williams v. Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir.1995) (“The purpose of Rule 8(c) is to give the court and the other parties fair warning that a particular line of defense will be pursued.”); Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir.1989) (“The Supreme Court has held that the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it.”) (citing Blonder-Tongue); Marino v. Otis Eng’g Corp., 839 F.2d 1404, 1408 (10th Cir.1988) (“The purpose behind rule 8(c) ... [is to] put[ ] ‘plaintiff on notice well in advance of trial that defendant intends to present a defense in the nature of an avoidance.’ ”) (citations omitted); Perez v. United States, 830 F.2d 54, 57 (5th Cir.1987) (“The central purpose of the Rule 8(c) requirement that affirmative defenses be pled is to prevent unfair surprise. ‘A defendant should not be permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.’ ”) (citations omitted). Technically, the Federal Rules of Civil Procedure require that affirmative defenses be pleaded in the answer. Rule 12(b) states that “[e]very defense ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion.... ” The defenses listed in Rule 12(b) do not include limitations defenses. Thus, a limitations defense must be raised in the answer, since Rule 12(b) does not permit it to be raised by motion." }, { "docid": "16091422", "title": "", "text": "... [the] statute of limitations ... and any other matter constituting an avoidance or affirmative defense.” While it is generally true that an affirmative defense that has not been pleaded is deemed waived, see Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir.1991), such a failure does not automatically constitute waiver of the defense when the policy behind the rule is not violated. Id.; Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir.1989); Bull's Corner Restaurant v. Director of the Fed. Emergency Management Agency, 759 F.2d 500, 502 (5th Cir.1985); accord, 2A Moore’s Federal Practice 8.27[3] at 8-170-73 (1992); 5 Wright & Arthur R. Miller § 1278 at 494 (1990). The reason for this rule is to put plaintiff on notice, well in advance of trial, that a defendant intends to pursue a defense that is in the nature of an avoidance. See Blonder-Tongue Lab., Inc. v. University of Illinois Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453-54, 28 L.Ed.2d 788 (1971). If the defendants raise \"the issue at a pragmatically sufficient time,\" and the plaintiffs were not prejudiced in their ability to respond, there is no waiver. Charpentier, 937 F.2d at 864. Here, defendants Cullen and W. Ihlenfeld raised their statute of limitations defense in their Rule 12(b)(6) motions, which served as responses to plaintiffs’ complaints. Plaintiffs were thus put on notice of this defense while this suit was still in its infancy, and cannot complain of unfair surprise or prejudice. Because plaintiffs were afforded ample notice of the statute of limitations issue, and because they have not argued that such a defense has been waived, the Court will address the merits of this defense. . The Delaware statute of limitations provides: No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained.... 10 Del.C. § 8119. . Section 1001 provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully" }, { "docid": "8452156", "title": "", "text": "MOT’s fraud claim, however, is distinct from Moore’s fraud claim. MOT alleged (in its complaint) that the Coffeys made several false misrepresentations which induced it to enter the purchase and sale agreement Moore claims that'these same representations induced him to enter the guaranty agreement Thus, MOT is claiming fraudulent inducement as to the underlying contract while Moore is claiming fraudulent inducement as to the guaranty agreement. Because these claims are different, Moore cannot “piggy-back” on MOT’s claim. It is well established, however, that failure to raise an affirmative defense by responsive pleading does not always result in waiver. See, e.g., Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir.1991). The Supreme Court has held that the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). “Thus, if a plaintiff receives notice of an affirmative defense by some means other' than pleadings, ‘the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.’ ” Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir.1989) (quoting Hassan v. United States Postal Serv., 842 F.2d 260, 263 (11th Cir.1988)). See also Charpentier, 937 F.2d at 864 (“It has been held that a ‘defendant does not waive an affirmative defense if [h]e raised the issue at a pragmatically sufficient time and [the plaintiff] was not prejudiced in its ability to respond.’ ”) (quoting Lucas v. United States, 807 F.2d 414, 418 (5th Cir.1986) (quoting Allied Chemical Corp. v. MacKay, 695 F.2d 854, 855-56 (5th Cir.1983)); Mackay, 695 F.2d at 855-56 (“Where the matter is raised in the trial court in a manner that does not result in unfair surprise ... technical failure to comply precisely with Rule 8(c) is not fatal.”); Pierce v. County of Oakland, 652 F.2d 671 (6th Cir.1981) (affirmative defense not waived, even though not specifically pleaded, where defense clearly appears on face of the pleading and is raised in motion to dismiss). Here," } ]

[ { "docid": "23420192", "title": "", "text": "F.3d 712, 714-15 (7th Cir.1994); Pietro Scalzitti Co. v. Operating Engineers, 351 F.2d 576 (7th Cir.1965), that such employment contracts are not excluded from the purview of the FAA. Koveleskie argues that arbitration of her discrimination claims is improper because (1) Congress intended to preclude Title VII claims from the FAA, 9 U.S.C. § 1 et seq.; (2) the arbitration agreement is an unconscionable contract of adhesion; (3) the securities industry arbitration procedures are inadequate to protect the rights of a civil rights plaintiff and (4) the agreement violates the “unconstitutional conditions” doctrine. A. Title VII and the FAA. The Federal Arbitration Act provides that predispute arbitration is enforceable and valid. The plaintiff argues that its use is prohibited in the Title VII setting. In order to resolve this challenge, we must consider whether Congress intended Title VII to preclude the use of pre-dispute arbitration agreements. If not, the FAA’s presumption in favor of arbitrability applies to Title VII claims. Section 118 of the 1991 Civil Rights Act (the “CRA”), passed on November 21, 1991, provides that “Where appropriate and to the extent authorized by law, the use of alternative dispute resolution, including ... arbitration, is encouraged to resolve disputes arising under [Title VII].” Koveleskie argues that the language and legislative history of the CRA indicate that Congress did not intend to authorize compelled, involuntary arbitration in discrimination cases. However, the weight of authority strongly suggests otherwise. In Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), which involved a claim of age discrimination brought under the Age Discrimination in Employment Act (“ADEA”), the Supreme Court held that the FAA required the enforcement of the pre-dispute mandatory enforcement clause in a Form U-4 identical to the one signed by Koveleskie. When his employer sought to compel arbitration of Gilmer’s ADEA claims, Gilmer challenged the application of arbitration to statutory civil rights claims. Id. The Court, noting that there was no reason to treat civil rights statutes any differently than other important statutes that may be the subject of enforceable arbitration agreements, held that pre-dispute" } ]

[ { "docid": "7843689", "title": "", "text": "between me and KFC, its related companies and/or their current or former employees. Such claims would include any concerning compensation, employment including, but not limited to any claims concerning (sexual harassment), or termination of employment ... In any arbitration, the prevailing rules of the American Arbitration Association and, to the extent\" not inconsistent, the prevailing rules of the Federal Arbitration Act will apply. (Doc. No. 16, Exh. A)(herein, “KFC Arbitration Agreement”). Defendants now argue that Plaintiff and Defendants have bargained for mandatory arbitration, and thus her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101 et seq. Plaintiff responds that there is no agreement to arbitrate between herself and these particular Defendants, and, even if there is an agreement, that agreement is unenforceable because it require the Plaintiff to pay a portion of the costs associated with arbitration. II. LEGAL STANDARDS The Supreme Court has recently held that agreements to arbitrate employment disputes as a condition of employment are almost universally enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. (“FAA”), Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Nevertheless, arbitration agreements may be attacked under “such grounds as exist at law or in equity for the revocation of a contract.” 9 U.S.C. § 2. The Sixth Circuit has consistently held that pre-dispute mandatory arbitration agreements are valid. Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir.2000); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310 (6th Cir.1991). Specifically, the Sixth Circuit has held that the employees may be required, as a condition of employment, to waive their right to bring future Title YII claims in court. Willis, supra. Almost every other Circuit to consider this issue has agreed with the Sixth Circuit. However, although the Supreme Court and lower courts endorse the use of arbitration, courts continue to emphasize that an employee cannot be required to forfeit any “substantive rights” as a" }, { "docid": "16788640", "title": "", "text": "MEMORANDUM OPINION HUVELLE, District Judge. Before the Court is defendant’s motion to dismiss, plaintiffs opposition, and defendant’s reply. Plaintiff Charity Emeronye filed this suit against her former employer, CACI International, Inc., alleging discrimination under 42 U.S.C. § 1981, et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Plaintiff contends that she was denied promotions because of her race and/or national origin, and that her employer engaged in retaliatory conduct. Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1), arguing that under plaintiffs employment agreement her discrimination claims are subject to mandatory arbitration and cannot be pursued in this Court. In response, plaintiff argues that: (1) the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”), does not apply to employment contracts; (2) the employment contract was an adhesion contract that plaintiff did not assent to; (3) the contract here does not contain a clear waiver of statutory rights; and (4) under the FAA, a court can stay a case pending arbitration, but cannot dismiss. The Court finds that the parties’ dispute is covered by the Employment Agreement, thus subject to mediation and then binding arbitration, and that this arbitration provision is enforceable. Accordingly, defendant’s motion to dismiss and to compel arbitration is granted. BACKGROUND Plaintiff is a Nigerian female with a law degree from the University of London and an L.L.M. degree from DePaul University, majoring in health law. Plaintiff began working for defendant in May 1997 as a \"temporary coder.\" On August 6, 1997, defendant offered plaintiff a permanent position as a paralegal. The offer letter, which was signed by both plaintiff and defendant, requested that plaintiff return a signed copy of the standard \"Employee Agreement,\" which was attached. Def. Reply Ex. A. The offer letter also stated that \"[y]our signature on [the Employee Agreement] acknowledges your understanding of the requirements contained therein, and your agreement to abide by them.\" Id. Plaintiff signed the Employee Agreement on August 6, 1997. This two page agreement provides in relevant part that: Any controversy or claim arising out of, or relating to" }, { "docid": "10887098", "title": "", "text": "not the officer, was party to arbitration agreement). Plaintiffs are non-members and their dispute with Shaw and Skelton arises in connection with Defendants’ activities as associated persons. Therefore, the scope of Plaintiffs’ arbitration agreements includes their claims against the individual Defendants as well as those against Smith Barney. C. Whether Congress Intended Any of Plaintiffs’ Claims to be Nonarbitrable. It is well-settled that federal statutory claims, including discrimination claims, are arbitrable under the FAA. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 35, 111 S.Ct. 1647, 1652, 1656-57, 114 L.Ed.2d 26 (1991) (holding discrimination claims under Age Discrimination in Employment Act arbitrable). “Having made the bargain to arbitrate, [a] party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354-55, 87 L.Ed.2d 444 (1985). Thus, the burden is on the party who asserts that Congress intended to preclude arbitration of claims under a given statute to demonstrate such intent with evidence from either the statute or its legislative history or an inherent inconsistency between compulsory arbitration and the statute’s underlying framework and purposes. Gilmer, 500 U.S. at 26-27, 111 S.Ct. at 1652. See also Bird v. Shearson Lehman/American Express, Inc., 926 F.2d 116, 119 (2d Cir.), cert. denied, 501 U.S. 1251, 111 S.Ct. 2891, 115 L.Ed.2d 1056 (1991); McNulty v. Prudential-Bache Sec., 871 F.Supp. 567, 569 (E.D.N.Y.1994). Plaintiffs’ only effort with regard to legislative history is to cite the same sources that the Ninth Circuit relied upon in Lai. As discussed above, the two statements cited in that ease are insufficient to contradict the seemingly unambiguous Congressional endorsement of arbitration in § 118 of the Civil Rights Act of 1991. Concerning any inherent inconsistency between compelled arbitration and the underlying framework and purposes of Title VII, Plaintiffs’ only assertion is that as unsophisticated entry level employees they would be at an unfair disadvantage in arbitration before the NYSE, a body in which Smith Barney wields great power as" }, { "docid": "8618585", "title": "", "text": "method of weakening the protections afforded in the substantive law to would-be complainants”); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 634, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (agreement to arbitrate Sherman Act claim is enforceable; “we ... reject the proposition that an arbitration panel will pose too great a danger of innate hostility to the constraints on business conduct that antitrust law imposes.”) Accordingly, SOX does not render the arbitration clause unenforceable in this case. III. CONCLUSION We REVERSE the district court’s order denying Ricoh’s motion to compel arbitration and REMAND with instructions to grant Ricoh’s motion and order the parties to arbitrate. . The complaint alleged federal-question jurisdiction under 28 U.S.C. § 1331 based on the SOX claim and diversity jurisdiction under 28 U.S.C. § 1332. . The provision reads: If a legally cognizable dispute arises out of or relates to this Agreement or the breach, termination, or validity hereof, or the compensation, promotion, demotion, discipline, discharge or terms and conditions of employment of [Hill], and if said dispute cannot be resolved through direct discussions, the parties voluntarily agree to settle the dispute by binding arbitration.... The arbitration shall proceed in accordance with the Employment Dispute Resolution Rules of the [American Arbitration Association] in effect on the date of the demand for arbitration. ... Disputes subject to binding arbitration pursuant to this section include all tort and contract claims as well as claims brought under all applicable federal, state or local statutes, laws, regulations or ordinances, including but not limited to, Title VII of the Civil Rights Act of 1964, as amended; the Family and Medical Leave Act; the Americans with Disabilities Act; the Rehabilitation Act of 1973, as amended; the Fair Labor Standards Act of 1938, as amended; the Age Discrimination in Em ployment Act, as amended; the Equal Pay Act; the Civil Rights [Act] of 1866, as amended; and the Employee Retirement Income Security Act of 1974. Disputes subject to binding arbitration pursuant to this section also include claims against [Lanier's] parent and subsidiaries, and affiliated and successor companies.... Each party shall pay" }, { "docid": "15088865", "title": "", "text": "Svc., Inc. v. NCR Corp., 859 F.Supp. 349, 354-56 (N.D.Ind.1994) (district court staying judicial proceedings, pursuant to 9 U.S.C. § 3, because permitting claims to proceed both in the district court and in arbitration is contrary to the FAA’s purpose of avoiding wasted resources, delay, and expense of litigation). Therefore, we shall focus on whether there is a valid written agreement to arbitrate between Flynn and AerChem and if so, what is the scope of that agreement. I. Federal Policy and the Arbitration of Title VII Claims The Agreement purportedly signed by Flynn and Ronald Tippman, acting on behalf of AerChem, called for the undersigned employee to agree: to submit to final and binding arbitration any controversy, dispute, or claim arising out of, concerning, or relating to Employee’s employment with Company, including, but not limited to, any claim by Employee implicating rights under: (a.) Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 et seq.; (b.) The Civil Rights Act of 1991, 42 U.S.C. 1981 a[sic]; (m.) Any contract, tort or common law. Defs.’ Mot. to Dismiss, Ex. A. Federal policy strongly favors arbitration. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). In fact, the FAA provides that prospective agreements to arbitrate in the employment context are enforceable and valid. See Koveleskie v. SBC Capital Markets, Inc., 167 F.3d 361, 364 (7th Cir.1999). Much discussion has occurred over whether Congress intended to include Title VII claims within the scope of disputes subject to pre-dispute arbitration agreements. In response to that question, the Seventh Circuit has conclusively found a “clear congressional intent to encourage arbitration of Title VII and ADEA claims, not to preclude such arbitration.” Koveleskie, 167 F.3d at 365 (quoting Sens v. John Nuveen & Co., 146 F.3d 175, 183 (3rd Cir.1998)). In holding that Title VII claims are arbitrable, the Seventh Circuit relied on Gilmer, in which case the Supreme Court noted that employees who sign pre-dispute arbitration agreements do not agree to forego their substantive rights under statutes such as Title VII; rather, they allow" }, { "docid": "1740103", "title": "", "text": "and compel arbitration was decided, or alternatively, to stay its obligation to answer indefinitely if the court grants the motion to compel arbitration. The court agrees with DU that it should not be required to conduct discovery while this action is stayed pending arbitration. Such a requirement is precisely the sort of burdensome and expensive discovery the court is empowered to prevent. Fed.R. Civ.P. 26(c). Accordingly, all discovery in this action shall be stayed pending completion of the arbitration process. CONCLUSION Defendant’s motion to stay this proceeding and compel arbitration of all claims raised in plaintiff’s complaint is GRANTED. Additionally, defendant’s motion for a protective order staying all discovery until the arbitration proceeding is complete is GRANTED. . Defendant has not filed an answer to plaintiff's complaint. Instead, defendant has framed its motion as one brought pursuant to Rule 12(b)(1), Fed.R.Civ.P., contending that the court lacks subject matter jurisdiction because plaintiff's claims should be arbitrated. Although the court has concluded defendant’s motion should be characterized as a motion made under 9 U.S.C. §§ 3, 4 (see p. 4 infra), which falls outside the ambit of Rule 12(b) motions that serve as responsive pleadings made in lieu of answers, the court notes that this jurisdiction has entertained such motions even though no answer has been filed. First Citizens Municipal Corp. v. Pershing Division of Donaldson, Lufkin & Jenrette Securities Corp., 546 F.Supp. 884, 886 n. 1 (N.D.Ga.1982). Accordingly, this court will consider defendant’s motions. . This court previously held that a valid arbitration agreement exists between DO and FCMC. First Citizens, 546 F.Supp. at 887-888. Defendant, however, has not contended that Goldberg is bound to arbitrate under that agreement. . There is a split among the courts of appeal regarding whether section 17(a) creates an implied private cause of action. Compare Kirshner v. U.S., 603 F.2d 234 (2nd Cir.1978) (found right to private cause of action) with Landry v. All American Assurance Co., 688 F.2d 381 (5th Cir.1982) (no private cause of action). However, DLJ did not raise this issue, so the court need not address it. . Even if plaintiff" }, { "docid": "16611189", "title": "", "text": "predecessor clearing agent for Hess Grant. Counts VII through X set forth claims against both Hess Grant and Merrill Lynch. They pertain to a series of options purchases made between September 20 and October 6, 1982 by Hess Grant for plaintiffs. Some of these purchases resulted in Regulation T calls against plaintiffs’ margin accounts. Hess Grant determined after consultation with Merrill Lynch that it was necessary to liquidate promptly 4,000 shares of Telex stock held in plaintiffs’ account to meet that margin call. Plaintiffs complain that defendants followed through with the liquidation decision despite Mr. Okcuoglu’s protests and that they had given him insufficient time and opportunity to meet the call with other resources. Jurisdiction is based upon diversity of citizenship and the amount in controversy, exclusive of interests and costs, exceeds $10,000. The complaint does not allege any claims arising under the securities laws or other statutes conferring exclusive jurisdiction upon the federal courts. Plaintiffs seek a jury trial to resolve their state law claims against defendants. Defendants have filed separate motions to stay proceedings in this court pending arbitration of plaintiffs’ claims. They contend that arbitration is mandated by several agreements to which Mr. Okcuoglu, and inferentially, Geotech are parties. As to Counts VII through X, defendants claim that plaintiffs are bound to arbitrate pursuant to an options agreement, a Merrill Lynch form, dated October 28,1982. As to Counts I through VI, Hess Grant contends that arbitration is compelled by a customer agreement and an options agreement with the immediate predecessor clearing agent, Pershing & Company, Inc. Hess Grant claims that it was understood, despite the absence of clear language in the documents in question to that effect, that it was an agent of Pershing & Co. and Merrill Lynch for purposes of all options transactions. Specifically, defendants seek to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. '§§ 2-4. The parties agree that where there is a motion to arbitrate the court must decide if a party has agreed to arbitrate. Vespe Contracting Co. v. Anvan Corp., 399 F.Supp. 516, 519 (E.D.Pa.1975). Whether a matter" }, { "docid": "23418973", "title": "", "text": "employees to arbitrate any employment-related dispute at the request of their employers. NYSE Rule 347 provides: Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules. The NASD Code of Arbitration Procedure, as amended in 1993, provides: [A]ny dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of associated person(s) with any members ... shall be arbitrated. Id. at Part 1, § 1. After signing her Form U-4 in 1988, Duffield began working as a broker-dealer for Robertson Stephens. In January, 1995, Duffield brought suit in federal court, alleging sexual discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and California’s Fair Employment and Housing Act (FEHA), breach of contract, deceit, intentional infliction of emotional distress, and negligent infliction of emotional distress. As a threshold matter, she requested a declaratory judgment stating that securities industry employees cannot be compelled to arbitrate their employment disputes under the arbitration provision in Form U-4. She made five specific arguments in this regard: (1) that the “compulsory” arbitration requirement mandated by Form U-4 does not constitute a voluntary agreement to arbitrate within the meaning of Title VII; (2) that signing Form U-4 does not constitute a “knowing” agreement to arbitrate within the meaning of Title VII; (3) that the NYSE’s arbitration system fails adequately to protect employees’ substantive Title VII rights; (4) that Form U-4 is an unconscionable contract of adhesion because it forces her to arbitrate her Title VII claims under an inadequate arbitration system; and (5) that the industry’s mandatory arbitration requirement constitutes an unconstitutional condition of employment. Only in connection with her final argument did Duffield contest the arbitrability of her state" }, { "docid": "7843688", "title": "", "text": "MEMORANDUM ORDER JOHN T. NIXON, Senior District Judge. Pending before the Court is Defendants’ Motion to Dismiss or, in the Alternative, to Compel Arbitration and Stay Proceedings (Doc. No. 12). Plaintiff has now responded to this Motion (Doc. No. 16). The Court heard oral arguments in this matter on April 8, 2002. For the reasons discussed below, Defendants’ Motion will be denied. I. BACKGROUND This case arises from the employment of Plaintiff by Defendant MRM Investment Co. (“MRM”), a Kentucky Fried Chicken (“KFC”) franchisee. Ms. Cooper was hired by MRM to work at its Waverly Tennessee KFC on or about January 8, 2000. Plaintiff alleges that, while working for MRM, she was sexually harassed by Defendant Terry Rogers, one of the owners of MRM, and was constructively discharged by Defendants on or about August, 2000. As part of her employment contract, and prior to commencing work at KFC, Plaintiff signed a document entitled “Arbitration of Employee Rights.” The document provides: ... KFC and I agree to use confidential binding arbitration for any claims that arise between me and KFC, its related companies and/or their current or former employees. Such claims would include any concerning compensation, employment including, but not limited to any claims concerning (sexual harassment), or termination of employment ... In any arbitration, the prevailing rules of the American Arbitration Association and, to the extent\" not inconsistent, the prevailing rules of the Federal Arbitration Act will apply. (Doc. No. 16, Exh. A)(herein, “KFC Arbitration Agreement”). Defendants now argue that Plaintiff and Defendants have bargained for mandatory arbitration, and thus her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101 et seq. Plaintiff responds that there is no agreement to arbitrate between herself and these particular Defendants, and, even if there is an agreement, that agreement is unenforceable because it require the Plaintiff to pay a portion of the costs associated with arbitration. II. LEGAL STANDARDS The Supreme Court has recently held that agreements to arbitrate employment disputes as" }, { "docid": "14963984", "title": "", "text": "DECISION AND ORDER LARIMER, District Judge. BACKGROUND Plaintiff was formerly employed by ITT Consumer Financial Corporation (“ITT”) as the Operations Manager at its subsidiary, Lyndon Guaranty Bank of New York. On July 7, 1989, plaintiff and ITT entered into a written employment contract, Paragraph 5 of which provides: ITT CFC and EMPLOYEE agree that any dispute between them or claim by either of them against the other or any agent or affiliate of the other shall be resolved by binding arbitration under the Code of Procedure of the National Arbitration Forum, 2124 Dupont Avenue South, Minneapolis, MN, and that judgment upon the award may be entered in any court of competent jurisdiction. Goodman Aff.Ex.A. Plaintiff, who resigned from her employment on October 30, 1991, timely filed a complaint with the New York State Division of Human Rights, alleging that her immediate supervisor subjected her to gender discrimination, sexual harassment and a hostile work environment. After she was issued a right-to-sue letter by the Equal Employment Opportunity Commission (“EEOC”), plaintiff commenced this action in March 1992, alleging causes of action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and the New York State Human Rights Law, N.Y.Exec.L. § 296. Defendants have moved to stay these proceedings and to compel arbitration under the Federal Arbitration Act (“FAA” or “the Act”), 9 U.S.C. § 1 et seq. Plaintiff has cross-moved for attorney’s fees and costs pursuant to Rule 11 of the Federal Rules of Civil Procedure. With one narrow exception, which will be explained below in the discussion of punitive damages, I will grant defendants’ motion to compel arbitration. Since plaintiff’s cross-motion is based largely on her contention that defendants’ motion is meritless, I will deny her motion for attorney’s fees and costs. DISCUSSION 1. Applicable Standard Under the FAA A court deciding a motion to compel arbitration and to stay proceedings should consider four factors: whether there has been an agreement to arbitrate; the scope of that agreement; whether the federal statutory claims, if any, were intended by Congress to be non-arbitrable; and, if only some of the" }, { "docid": "1621559", "title": "", "text": "ILANA DIAMOND ROVNER, Circuit Judge. Gloria McCaskill filed suit in federal court against SCI Management Corporation, Evergreen Cemetery, Sam Smith, and Patrick Comer (collectively “SCI”) alleging that she was terminated from her position at SCI in violation of Title VII, 42 U.S.C. § 2000e et seq. She further alleges denial of her contract rights in violation of 42 U.S.C. § 1981, violation of the Illinois Wage Payment and Collection Act, 820 ILS 115/1 et seq., and tortious interference with contract. The facts underlying those claims are irrelevant to the issues on appeal, but essentially involve allegations that McCaskill forwarded complaints of sexual harassment from her subordinates to her supervisor, who was the alleged harasser, and to the general manager, and that she was denied compensation owed to her and eventually terminated as a result. SCI moved to dismiss the complaint and compel arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and the Illinois Uniform Arbitration Act (“IUAA”), 710 ILCS 5/2 et seq. SCI asserts that McCaskill signed an agreement providing that all employment disputes shall be resolved through binding arbitration. Although acknowledging the applicability of the arbitration provision, McCaskill asserts that the arbitration agreement is not enforceable because it prevents her from fully and effectively vindicating her Title VII rights. She grounds this argument in a provision in the arbitration agreement which (1) requires each party to pay its own costs and attorneys’ fees regardless of the outcome and (2) mandates that each party shall pay one-half of the compensation to be paid to the arbitrator as well as one-half of any other costs of arbitration. Because we agree that the attorney’s fee provision renders the agreement unenforceable in this Title VII action, we need not consider the argument regarding the costs. We note that the parties had initially challenged the ability of this court to hear this case, with SCI arguing that this court lacked jurisdiction over the district court’s order compelling arbitration based on the distinction between an “embedded” and an “independent” proceeding. Since that time, however, the Supreme Court resolved the" }, { "docid": "10403885", "title": "", "text": "cases. There is no contradiction created by defendants’ motion to compel arbitration in this case, even though defendants have not so moved in other, similar cases. There is no requirement that defendants must move to compel arbitration in every employment discrimination case in which an employee signed a U-4 form. Plaintiff can cite no case law in support of this position. For the foregoing reasons, this court rejects plaintiffs arguments. Plaintiff has signed an agreement to arbitrate claims such as this and she will be held to that agreement. This holding is consistent with contract law, the FAA, Title VII, and the Supreme Court’s decision in Gilmer. ORDER Therefore, it is hereby ORDERED that defendants’ motion to compel arbitration and/or to dismiss be GRANTED in part. Plaintiff is directed to submit her claims to binding arbitration pursuant to the NASD Code of Arbitration Procedure. SO ORDERED. . Plaintiffs initial complaint also included state law claims over which this court declined to exercise supplemental jurisdiction. . Although the FAA does not apply to certain employment contracts, that exception does not apply in the present case because the arbitration agreement in the case at bar is not within an employment contract, but rather within an agreement between the plaintiff and NASD. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 n. 2, 111 S.Ct. 1647, 1651 n. 2, 114 L.Ed.2d 26 (1991); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310-12 (6th Cir.1991). . In Alexander, the Court held that an arbitration clause in a collective bargaining agreement could not preclude a Title VII suit. . The Prudential court recognizes that Congress expressly stated, in the notes to 42 U.S.C. § 1981, that \" ‘Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolutions including, ... arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title.’ § 118 of Pub.L. 102-166, set forth in the notes following 42 U.S.C. § 1981 (Supp.1994).” Prudential, 42 F.3d at 1304. . See, McMaster v. Teledyne Pine, 838" }, { "docid": "583951", "title": "", "text": "Order CARR, District Judge. This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended. This court has jurisdiction pursuant to 28 U.S.C. § 1381. Pending is defendant’s motion and application to stay proceedings pending arbitration. (Doc. 18). Defendant claims that arbitration of plaintiffs claim is required by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA), because of an arbitration clause contained in the employee handbook. For the following reasons, defendant’s motion shall be denied. Facts Plaintiff Debra Trumbull was employed by Century Marketing Corp. (Century) for about ten years. Her employment was terminated by Century in August of 1997. Sometime after plaintiff began her employment and before March 1, 1996, she was given an employee handbook to read and sign. The court has no record of the circumstances under which she was asked to sign the handbook. Also, the court has no record indicating how the handbook may vary or correspond with any handbook or original employment contract. During her employment with Century, plaintiff alleged several incidents of sexual harassment by her supervisor, and complained of a hostile working environment. Trumbull claims that Century did not respond adequately to her complaints, and that she was ultimately discharged by Century in retaliation for her sexual harassment claims. The merits of these claims are not relevant at this time. The employee handbook states that “any and all disputes arising out of employment with the Company will be resolved through arbitration”. (Def. Ex. A). Defendant argues that this arbitration clause is a valid, binding agreement barring the plaintiff from bringing any claim in this court until the matter is arbitrated. Plaintiff contends that her Title VII claim is not subject to the arbitration clause and that defendant’s motion to stay proceedings should be denied. This order is concerned solely with whether the arbitration clause is a valid, binding agreement to arbitrate disputes between the parties. While the ultimate question is whether there was a valid waiver by Trumbull of her right to take her Title VII claim to a judicial forum," }, { "docid": "7284322", "title": "", "text": "are consistent with the statutory scheme of the claims they cover. The decisions between Gilmer and Cole concur with this basic proposition. Where courts have differed, however, is on an issue that neither Gilmer nor Cole addressed: whether Congress has established in Title VII a prerequisite to mandatory arbitration — the claimant’s knowing waiver of the right to press her Title VII claims in court. Compare Prudential Ins. Co. v. Lai, 42 F.3d 1299, 1305 (9th Cir.1994) with Beauchamp v. Great West Life Assurance Co., 918 F.Supp. 1091, 1098 (E.D.Mich.1996). The Seventh Circuit has not yet dealt with this issue. 2. The Ninth Circuit’s Formulation in Lai — A Knowing Agreement The Ninth Circuit in Lai held that “a Title VII plaintiff may only be forced to forgo her statutory remedies and arbitrate her claims if she has knowingly agreed to submit such disputes to arbitration.” 42 F.3d at 1305. The Lai plaintiffs were securities industry employees who registered with the NASD, but not with the NYSE, by signing Forms U-4. They alleged they were told they were signing something entirely different and never given an opportunity to read the forms or the NASD manual on arbitration. The U-4s contained the same generic arbitration clause that Cremin signed, but the suit was filed long before the NASD promulgated rules specifically requiring arbitration of employment disputes. The plaintiffs thus contended that, even assuming they had agreed to arbitrate, nothing in the U-4 or the NASD arbitration rules mentioned employment disputes. Consequently, their signatures could not have possibly manifested consent to submit Title VII claims to arbitration. The court agreed. While Gilmer and its progeny held that individuals may contract to arbitrate employment disputes, Congress mandated that this agreement be “knowing.” Id. at 1304. The court gleaned Congress’ intent from the legislative history to Title VII’s post-Gilmer amendment, section 118 of the 1991 Civil Rights Act. Section 118 states that “[w]here appropriate and to the extent authorized by law, the use of alternative dispute resolution, including ... arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law" }, { "docid": "999539", "title": "", "text": "final judgment. Murray now appeals the district court’s grant of defendants’ motion to dismiss and to compel arbitration of his discrimination claim, as well as the district court’s dismissal of his defamation claim under Rule 12(b)(6). II. We begin with Murray’s contention that the district court erred in granting the motion to dismiss and to compel arbitration of his race discrimination claim brought under Title VII and § 1981 against Local 400 and Cash. A. The Federal Arbitration Act (“FAA”), 9 U.S.C.A. §§ 1-16 (West 1999) represents “a liberal federal policy favoring arbitration agreements,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), in order “ ‘to reverse the longstanding judicial hostility to arbitration agreements ... and to place arbitration agreements upon the same footing as other contracts,’ ” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 89, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (alteration in original) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)). “Pursuant to th[is] liberal policy, ‘any doubts concerning the scope of arbi-tral issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.’ ” O’Neil v. Hilton Head Hosp., 115 F.3d 272, 273-74 (4th Cir.1997) (quoting Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927). When parties have entered into a valid and enforceable agreement to arbitrate their disputes and the dispute at issue falls within the scope of that agreement, the FAA requires federal courts to stay judicial proceedings, see 9 U.S.C.A. § 3, and compel arbitration in accordance with the agreement’s terms, see 9 U.S.C.A. § 4. It is settled that the provisions of the FAA, and its policy favoring the resolution of disputes through arbitration, apply to employment agreements to arbitrate discrimination claims brought pursuant to federal statutes, including Title VII of the Civil Rights Act. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109," }, { "docid": "22161731", "title": "", "text": "CARDAMONE, Circuit Judge. Plaintiff, Susan A. Desiderio, received an offer of employment from Florida’s Suntrust Bank (Suntrust or bank) to become a securities broker. Her employment was conditioned on registration with defendant National Association of Securities Dealers, Inc. (NASD). To register with the NASD, Desiderio was asked to sign Form U-4 that contained a provision making all employment related disputes subject to arbitration. Desiderio said she would sign the form only if the mandatory arbitration provision was stricken from it. When the NASD refused to accept an altered form, the bank’s offer of employment to plaintiff was revoked. In her complaint, Desiderio asserts that the mandatory arbitration provision in Form U-4 violates her statutory rights under Title VII, 42 U.S.C. §§ 2000e to e-17, her constitutional rights under the Fifth Amendment Due Process Clause to an Article III judicial forum, and her right to a jury trial under the Seventh Amendment. She seeks a declaratory judgment invalidating the mandatory arbitration provision in Form U-4, and also asks for compensatory damages through her pendent state law tort claims. BACKGROUND Defendant NASD is a self-regulatory private corporation registered with the Securities and Exchange Commission (SEC) as a national securities association. As an integral part of a comprehensive system of federal regulation of the securities industry, the NASD regulates the over-the-counter securities market, which includes securities firms and registered representatives who buy and sell over-the-counter-securities. Its authority is exercised under the close supervision of the SEC, which must approve all the NASD’s rules and regulations. Among the rules that have been expressly approved by the SEC is the Form U-4 registration form. That form — the subject of this litigation — incorporates a provision for compulsory arbitration of all disputes between a securities representative and her employer, when required by the rules of the self-regulatory organization with which the securities representative seeks to become registered. Under NASD rules, all employees are compelled to arbitrate any employment-related dispute. In order to work in the securities industry, the SEC requires a securities broker to be registered with at least one self-regulatory organization, see 17 C.F.R." }, { "docid": "10545606", "title": "", "text": "(ii) national origin discrimination under Title VII; and other claims entitled (iii) breach of implied contract; (iv) breach of course of dealing contract to pay bonus; (v) attempt to force plaintiff into arbitration; and (vi) damage to plaintiffs reputation, against his former employers, CIBC, Inc. and Wood Gundy Corp. and their parent corporation, the Bank. At the time Hart signed his Form U-4 and when he filed the instant complaint, the NASD and NYSE rules provided for compulsory arbitration of employment related disputes, including statutory discrimination claims. Accordingly, on October 15, 1998, defendants moved to dismiss Count V of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim and, simultaneously, for an order pursuant to Section 3 of the FAA, staying this action and compelling arbitration of all causes of action not dismissed by the Court. Since then, the Securities and Exchange Commission (“SEC”) has approved changes to NASD and NYSE arbitration rules creating an exception to mandatory arbitration of employment disputes. According to the amendments, arbitration of statutory employment discrimination claims may only be compelled if the parties agreed to arbitration after the dispute had arisen. The NASD rule change went into effect January 1, 1999 and applies to claims filed on or after that date. See SEC Release No. 34^40109, 63 Fed.Reg. 35299, 1998 WL 339422. The NYSE rule change was approved by the SEC on December 29, 1998 and is silent on the issue of retroactivity. See SEC Release No. 34-40858, 64 Fed. Reg. 1051, 1999 WL 3315. DISCUSSION The Second Circuit has enumerated the following factors to be considered when deciding whether to compel arbitration: (1) whether the parties agreed to arbitrate; (2) the scope of that agreement; (3) whether Congress intended the plaintiffs statutory claims to be nonarbitrable; and (4) if not all claims are arbitrable, the court must determine whether to stay the balance of the proceedings pending arbitration. See Bird v. Shearson Lehman/American Express, Inc., 926 F.2d 116, 118 (2d Cir.1991) (citing Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840," }, { "docid": "17451816", "title": "", "text": "Court to compel arbitration of the plaintiffs claims, pursuant to a clause in the employment contract. Under 9 U.S.C. § 4, “a district court must enter an order to arbitrate upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 23 n. 27, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (quoting 9 U.S.C. § 4 (2006)) (internal quotation marks omitted). Therefore, “the role of courts [when asked to compel arbitration] is limited to determining two issues: i) whether a valid agreement or obligation to arbitrate exists, and ii) whether one party to the agreement has failed, neglected or refused to arbitrate.” Shaw Grp., Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 120 (2d Cir.2003) (quoting PaineWebber, Inc. v. Bybyk, 81 F.3d 1193, 1198 (2d Cir.1996)) (internal quotation marks omitted). However, in determining whether an obligation to arbitrate exists, a court must examine whether the agreement “has been overridden by a contrary congressional command.” CompuCredit Corp. v. Greenwood, — U.S. -, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012) (quoting Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)) (internal quotation marks omitted). Until 2010, complaints alleging a violation of Sarbanes-Oxley whistleblower protection could be subject to arbitration. See Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir.2008) (“Because we find no inherent conflict between the purpose of [the Sarbanes-Oxley Act] whistleblower protection provision and mandatory arbitration, we hold that such claims are arbitrable.”). However, in 2010, Congress passed the Dodd-Frank Act (“DoddFrank”). Section 922 of that Act amended the Sarbanes-Oxley Act to bar the arbitration of whistleblower claims. Pub. L. Ill— 203. Title IX, §§ 922(b) — (c), 929A, July 21, 2010, 124 Stat. 1848, 1852. The Sarbanes-Oxley Act now provides: No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under [the Sarbanes-Oxley whistleblower protection provision]. 18 U.S.C. § 1514A(e)(2). Therefore, after July 21, 2010, the enactment date for Dodd-Frank," }, { "docid": "22310288", "title": "", "text": "such disputes, controversies or claims whether asserted against the Company and/or against any employee, officer, alleged agent, director or affiliate company. All previously unasserted Associate claims arising under federal, state or local statutory or common law shall be subject to arbitration. Merely by way of example, these claims include, but are not limited to, claims arising under the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, as amended, including the amendments of the Civil Rights Act of 1991, the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), 42 U.S.C. § 1981, as amended, including the amendments of the Civil Rights Act of 1991, the Employee Polygraph Protection Act, the Employee Retirement Income Security Act (ERISA), state discrimination statutes] state statutes and/or common law regulating employment termination, the law of contract or the law of tort; including, but not limited to, claims for malicious prosecution,\" wrongful discharge, wrongful arrest/wrongful imprisonment, intentional/negligent infliction of emotional distress or defamation. Claims by Associates for state employment insurance (e.g., unemployment compensation, workers’ compensation, worker disability compensation) or under the Nátional Labor Relations Act shall nof be subject to arbitration. Statutory or common law claims alleging that Circuit City retaliated or discriminated against an Associate for filing a state employment insurance claim, however, shall be subject to arbitration, (emphasis added). . See Stirlen, 51 Cal.App.4th at 1540-41, 60 Cal.Rptr.2d 138 (criticizing an arbitration agreement in which the employer \"identifies no provision of the ... contract and no statute likely to give rise to a claimfthe employer] would be compelled to submit to arbitration”). . See Armendariz, 24 Cal.4th at 115, 99 Cal. Rptr.2d 745, 6 P.3d at 690; see also Ting, 319 F.3d at 1150 (citing Mercuro v. Superior Court, 96 Cal.App.4th 167, 116 Cal.Rptr.2d 671, for the proposition that the “arbitration forum, though equally applicable to both parties ... [is] relevant to finding of unconscio-nability because ‘repeat player effect’ rendered provision disadvantageous to weaker party”). See generally Jean R. Sternlight, Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial," }, { "docid": "16611190", "title": "", "text": "proceedings in this court pending arbitration of plaintiffs’ claims. They contend that arbitration is mandated by several agreements to which Mr. Okcuoglu, and inferentially, Geotech are parties. As to Counts VII through X, defendants claim that plaintiffs are bound to arbitrate pursuant to an options agreement, a Merrill Lynch form, dated October 28,1982. As to Counts I through VI, Hess Grant contends that arbitration is compelled by a customer agreement and an options agreement with the immediate predecessor clearing agent, Pershing & Company, Inc. Hess Grant claims that it was understood, despite the absence of clear language in the documents in question to that effect, that it was an agent of Pershing & Co. and Merrill Lynch for purposes of all options transactions. Specifically, defendants seek to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. '§§ 2-4. The parties agree that where there is a motion to arbitrate the court must decide if a party has agreed to arbitrate. Vespe Contracting Co. v. Anvan Corp., 399 F.Supp. 516, 519 (E.D.Pa.1975). Whether a matter is subject to arbitration “depends upon the intent of the parties as it appears from the language used, its context within the instrument, and the circumstances surrounding its formation and execution.” Bruno v. Pepperidge Farm, Inc., 256 F.Supp. 865, 868 (E.D.Pa.1966). Essentially, the court must determine whether there was a clear meeting of the minds on the issue. Whether a party has agreed to arbitration is determined on the basis of ordinary contract principles. A valid arbitration provision must be in writing, but a party may be bound by that provision without having signed an exemplar. Fox v. Merrill Lynch & Co., Inc., 453 F.Supp. 561, 564 (S.D.N.Y.1978). See also First Citizens Municipal Corp. v. Pershing Division of Donaldson, Lufkin & Jen-rette Securities Corp., 546 F.Supp. 884 (N.D.Ga.1982). The lynchpin of the analysis, however, is whether the facts and circumstances surrounding the formation and execution of the document demonstrate that there was mutual assent to arbitration. A party who has not agreed cannot be forced to arbitrate a dispute, even though the law favors arbitration" } ]

[ { "docid": "22113890", "title": "", "text": "the general will. But as the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.” The first two instances mentioned present no barrier to a State’s enactment of copyright statutes. The clause of the Constitution granting to Congress the power to issue copyrights does not provide that such power shall vest exclusively in the Federal Government. Nor does the Constitution expressly provide that such power shall not be exercised by the States. In applying the third phase of the test, we must examine the manner in which the power to grant copyrights may operate in our federal system. The objectives of our inquiry were recognized in Cooley v. Board of Wardens, 12 How. 299 (1852), when, in determining whether the power granted to Congress to regulate commerce was “compatible with the existence of a similar power in the States,” the Court noted: “Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.” Id., at 319. The Court’s determination that Congress alone may legislate over matters which are necessarily national in import reflects the basic principle of federalism. Mr. Chief Justice Marshall said, “The genius and character of the [federal] government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which" } ]

[ { "docid": "18668788", "title": "", "text": "provides that a person is guilty of theft of services when: With intent to avoid payment by himself or another person of the lawful charge for any telecommunications service, including without limitation, cable television service . . . which is provided for a charge or compensation, he obtains . such service for himself or another person ... or avoids . payment therefor . This court’s initial inquiry must be whether Congress, pursuant to its powers to regulate commence and to grant copyrights, has prohibited New York’s regulation of the aspects of commerce involved in this case. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Goldstein v. California, 412 U.S. 546, 561, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). Although the Constitution does not prohibit the states from protecting intellectual property, Goldstein, supra, 412 U.S. at 553-61, 93 S.Ct. 2303, when Congress has “unmistakably ordained that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall.” Jones, supra, 430 U.S. at 525, 97 S.Ct. at 1309. Fortunately for our purposes here, Congress, in the Copyright Act of 1976, made its preemptive intentions quite explicit. Pursuant to 17 U.S.C. § 301(a), Congress has abolished, effective January 1, 1978, all state law rights in copyrightable material that are “equivalent to any of the exclusive rights” of copyright recognized in the statute. The only state law rights preserved by Congress are those which involve: 1. subject matter that is not copyrightable; 2. causes of action arising from works created before January 1, 1978; or 3. rights that are not equivalent to any of the exclusive rights recognized by the federal statute. 17 U.S.C. § 301(b). The works exhibited by HBO are generally “motion pictures and other audiovisual works”, 17 U.S.C. § 102(6), and are therefore proper subject matter for copyright protection. Moreover, many of the works exhibited by HBO were created after January 1, 1978. HBO’s state law claims are thus clearly pre-empted by the Copyright Act unless they involve rights that are “not equivalent” to the" }, { "docid": "23488177", "title": "", "text": "L.Ed. 581, The nature of a court’s inquiries as to this question has been established in earlier cases. The Supreme Court summarized these inquiries in Jones v. Rath Packing Co., 1977, 430 U.S. 519, 525-26, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604: The first inquiry is whether Congress, pursuant to its power to regulate commerce, U.S.Const., Art. 1, § 8, has prohibited state regulation of the particular aspects of commerce involved in this case. [W]hen Congress has “unmistakably . . . ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973); Rice v. Santa Fe Elevator Corp., 331 U.S. [218,] 230, 67 S.Ct. 1152, [91 L.Ed. 1447] [1947]. Congressional enactments that do not exclude all state legislation in the same field nevertheless override state laws with which they conflict. U.S.Const., Art. VI. The criterion for determining whether state and federal laws are so inconsistent that the state law must give way is firmly established in our decisions. Our task is “to determine whether, under the circumstances of this particular case, [the state’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 339, 404, 85 L.Ed. 581 (1940). Accord, De Canas v. Bica, 424 U.S. 351, 363, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976); Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); Florida Lime & Avocado Growers v. Paul, supra, at 141, 83 S.Ct. at 1217; id. at 165, 83 S.Ct. at 1229 (White, J., dissenting). This inquiry requires us to consider the relationship between state and federal laws as they are interpreted and" }, { "docid": "6962003", "title": "", "text": "police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ This assumption provides assurance that ‘the federal-state balance’ will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has ‘unmistakably ... ordained’ that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 1977, 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (citations omitted). Accord Florida Lime & Avocado Growers, Inc. v. Paul, 1963, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248; California v. Zook, 1949, 336 U.S. 725, 733, 69 S.Ct. 841, 845, 93 L.Ed. 1005; Rice v. Santa Fe Elevator Corp., 1947, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447; Savage v. Jones, 1912, 225 U.S. 501, 537, 32 S.Ct. 715, 727, 56 L.Ed. 1182. The preemption of state law implicit in the goals and operation of the Staggers Act is unmistakable. One of the Act’s primary purposes is the elimination of the previous lack of uniformity in standards and procedures that governed rate-setting by interstate rail carrier {see notes 9-10), and the certification procedure of section 214 of the Act is tailored to this purpose. When Congress seeks to end a situation of conflicting regulatory schemes and to establish uniform regulatory standards, it has clearly manifested its intent to preempt state law. See City of Burbank v. Lockheed Air Terminal, Inc., 1973, 411 U.S. 624, 633, 638-39, 93 S.Ct. 1854, 1859, 1862-63, 36 L.Ed.2d 547; Campbell v. Hussey, 1961, 368 U.S. 297, 300-01, 82 S.Ct. 327, 328-29, 7 L.Ed.2d 299; Rice v. Santa Fe Elevator Corp., 331 U.S. at 234, 67 S.Ct. at 1154; Hines v. Davidowitz, 1941, 312 U.S. 52, 72-74, 61 S.Ct. 399, 407-08, 85 L.Ed. 581. That Congress intended the Staggers Act to preempt state law is manifest not only" }, { "docid": "6649771", "title": "", "text": "at issue. Where a federal lawmaking body explicitly provides for pre-emption in the statute or regulation, pre-emption is indubitable. Jones v. Rath Packing Co., 430 U.S. 519, 524, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). However, this is rarely the case. More common are those instances where Congress or a regulatory agency implicitly pre-empts state law by the “structure and purpose” of the federal regulation. Id. Here, Courts are to determine if Congress or the regulatory agency has otherwise provided its “clear manifestation of intention” before finding a federal regulatory scheme preempts state laws. New York State Department of Social Services v. Dublino, 413 U.S. 405, 417, 93 S.Ct. 2507, 2515, 37 L.Ed.2d 688 (1973). The intent of the regulatory agency or Congress depends first upon the language of the statute or regulation employed, and then on such factors as the pervasiveness of the federal regulation, and the need for uniformity. Pre-emption is disfavored where a regulatory agency seeks to displace the power of a sovereign state to act “unless and until Congress confers power upon it.” Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. at 374, 106 S.Ct. at 1901. The Supreme Court has unmistakably spoken on the importance of presuming against pre-emption when a federal regulatory agency is acting to preempt the will of the states, especially where public safety and health are involved. H.P. Welch Co. v. New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500 (1939). However, the Court has also said “the best way of determining whether Congress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency.” Id. A) Regulation J The regulatory measure at issue here is Regulation J, promulgated in 12 C.F.R. § 210 et seq. by the Federal Reserve Board. Regulation J was promulgated pursuant to the Federal Reserve Act to implement guidelines for the receipt of money by “Any Reserve Bank ... from any of its member banks or other depository institutions----” 12 U.S.C. § 342. Specifically, the" }, { "docid": "18668787", "title": "", "text": "on its Federal Communications Act claim must be denied. B. The State Law Claims: Unfair Competition and the New York Penal Law HBO next claims that Orth-O-Vision’s unauthorized use of the HBO program service may be enjoined pursuant to two distinct state law theories. HBO invokes New York’s common law of unfair competition, a well-developed doctrine which New York’s courts, following the seminal case of International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), have used to grant relief in a wide variety of situations to insure that one does not misappropriate the results of the skill, expenditures and labors of another. See, e. g., Flexitized, Inc. v. National Flexitized Corporation, 335 F.2d 774, 781 (2d Cir. 1964); Capitol Records, Inc. v. Greatest Records, Inc., 43 Misc.2d 878, 252 N.Y.S.2d 553 (Sup.Ct.1964); Metropolitan Opera Association, Inc. v. Wagner-Nichols Records Corp., 199 Misc. 786, 101 N.Y.S.2d 483, 489 (Sup.Ct.1950). Alternatively, HBO asks the court to imply a private right of action under New York Penal Law § 165.15, which provides that a person is guilty of theft of services when: With intent to avoid payment by himself or another person of the lawful charge for any telecommunications service, including without limitation, cable television service . . . which is provided for a charge or compensation, he obtains . such service for himself or another person ... or avoids . payment therefor . This court’s initial inquiry must be whether Congress, pursuant to its powers to regulate commence and to grant copyrights, has prohibited New York’s regulation of the aspects of commerce involved in this case. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Goldstein v. California, 412 U.S. 546, 561, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). Although the Constitution does not prohibit the states from protecting intellectual property, Goldstein, supra, 412 U.S. at 553-61, 93 S.Ct. 2303, when Congress has “unmistakably ordained that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall.” Jones, supra, 430" }, { "docid": "2112661", "title": "", "text": "sections 25503 and 2S524.2. IV PREEMPTION When a state statute is challenged under the supremacy clause, U.S.Const. art. VI, cl. 2, our inquiry is directed to whether Congress intended to prohibit the states from regulating in such a manner. We start with the assumption that the states’ police powers were not to be superseded “unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); accord, e. g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Congress’s purpose is most clear, of course, when the federal statute at issue explicitly prohibits state regulation in the same field. E. g., Rath Packing, 430 U.S. at 530-31, 97 S.Ct. at 1312. When the federal statute contains no such prohibition, congressional intent to preempt may be inferred from the nature of the federal regulatory scheme, e. g., Ray, 435 U.S. at 163, 98 S.Ct. at 997; City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973), or from the subject matter being regulated, e. g., Rice, 331 U.S. at 230, 67 S.Ct. at 1152; Hines v. Davidowitz, 312 U.S. 52, 62-63, 61 S.Ct. 399, 401-02, 85 L.Ed. 581 (1941). Congressional intent to preempt must, however, be unambiguous. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-47, 83 S.Ct. 1210, 1219-20, 10 L.Ed.2d 248 (1963). An intent to preempt cannot be inferred from the mere fact that the federal statute is detailed and complex, see De Canas v. Bica, 424 U.S. 351, 359-60, 96 S.Ct. 933, 938, 47 L.Ed.2d 43 (1976); New York State Department of Social Services v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 2514, 37 L.Ed.2d 688 (1973), or because the state legislation touches an area of predominantly national concern, e. g., De Canas, 424 U.S. at 354-55, 96 S.Ct. at 935-36; Kewanee Oil" }, { "docid": "6186520", "title": "", "text": "v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotation marks omitted). Finally, state law may be displaced under conflict preemption principles if the state law in question presents a conflict with federal law in one of two situations: when it is impossible to comply with both the state and the federal law, see Pacific Gas, 461 U.S. at 204, 103 S.Ct. 1713, or when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Jones v. Rath Packing Co., 430 U.S. 619, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). As the Court has noted, these categories are not necessarily airtight. See English v. General Elec. Co., 496 U.S. 72, 79 n. 5, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (“By referring to these three categories, we should not be taken to mean that they are rigidly distinct. Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.”). The Copyright Act contains an express preemption provision in § 301, which states, in relevant part: On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. § 301(a) (emphasis added). The exclusive rights in the copyrighted work granted by the Act are reproduction; preparation of derivative works; distribution by sale, rental, lease or lending; public performance, in the case of motion pictures or audiovisual works; and" }, { "docid": "23488176", "title": "", "text": "believe Great Western’s claim against the Idaho officials arose in Dallas would equally apply to them, and a single suit would have been possible. In summary, on the questions whether the requirements of personal jurisdiction and venue are satisfied, we hold that both are met. Personal jurisdiction existed under the Texas long arm statute, as made applicable by the Federal Rules of Civil Procedure, and the requirements of due process. Personal jurisdiction also existed by virtue of § 27 of the 1934 Act. Venue is proper under both § 27 of the 1934 Act and 28 U.S.C. § 1391(b). IV. PREEMPTION A. The Legal Criteria. We now proceed to the district court’s substantive holding that federal securities regulation preempts the Idaho statute. No simple, mechanical formula can summarize the analysis necessary to determine whether a state statute is void under the supremacy clause, U.S.Const. art. I, § 10. See Goldstein v. California, 1973, 412 U.S. 546, 561, 93 S.Ct. 2303, 37 L.Ed.2d 163; Hines v. Davidowitz, 1941, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581, The nature of a court’s inquiries as to this question has been established in earlier cases. The Supreme Court summarized these inquiries in Jones v. Rath Packing Co., 1977, 430 U.S. 519, 525-26, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604: The first inquiry is whether Congress, pursuant to its power to regulate commerce, U.S.Const., Art. 1, § 8, has prohibited state regulation of the particular aspects of commerce involved in this case. [W]hen Congress has “unmistakably . . . ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973); Rice v. Santa Fe Elevator Corp., 331 U.S. [218,] 230, 67" }, { "docid": "7557197", "title": "", "text": "of establishments regulated by the Act. IV. “No simple, mechanical formula can summarize the analysis necessary to determine whether a state statute is void under the supremacy clause.” Great Western United Corp. v. Kidwell, 5 Cir. 1978, 577 F.2d 1256, 1274 (citing cases). The first inquiry must be whether Congress has prohibited state regulation of the commerce involved in this case: [W]hen Congress has “unmistakably . ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Jones v. Rath Packing Co., 1977, 430 U.S. 519, 525, 97 S.Ct. 1305,1309, 51 L.Ed.2d 604. A federal law that does not exclude all state legislation nonetheless overrides state laws with which it conflicts. U.S.Const. art. VI. To ascertain whether the state law in question is fatally inconsistent with federal law, we must “determine whether . [it] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”. Hines v. Davidow-itz, 1940, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581. See Great Western, 577 F.2d at 1274-75. The association does not argue that, by passing the Act, Congress intended to occupy the whole field of meat inspection. Rather, the association asserts that language in the Act clearly conflicts with these local ordinances. To assess this claim, we must first review the applicable provisions of the Act. Far from intending to preempt the entire field of meat inspection, Congress actually designed the Act to “protect the consuming public from meat and meat food products that are adulterated or misbranded and to assist in efforts by State and other Government agencies to accomplish this objective”. 21 U.S.C. § 661(a). In brief, subchapter I of the Act provides meat inspection standards to be enforced by the Secretary of Agriculture. 21 U.S.C. §§ 601-624. Congress made" }, { "docid": "8348931", "title": "", "text": "488] (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably ... ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), that its enactments alone are to regulate a part of commerce, state law regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. 430 U.S. at 525, 97 S.Ct. at 1309, 51 L.Ed.2d at 614. See also California v. ARC America Corp., - U.S. -, -, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86, 94-95 (1989). As indicated in the last sentence of the quotation from the Rath Packing case, the caution which a federal court should exercise in dealing with preemption involving federal and state authorities does not prevent a finding of preemption where the Congressional intent is clear. The Su preme Court has squarely held that express preemption found in a federal statute will be enforced notwithstanding disruption of important state interests. See Exxon Corp. v. Hunt, supra, 475 U.S. at 362, 371-74, 106 S.Ct. at 1313-15 (1986); Aloha Airlines, Inc. v. Director of Taxation, supra, 464 U.S. at 12, 104 S.Ct. at 294. Moreover, it has been held that the caution used when looking for preemptive intent is not as strong when the federal law and Constitution create a “uniquely federal interest.” In Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), the Court found procurement of military equipment to be one of these interests. The Court stated as follows: In most fields of activity, to be sure, this Court has refused to find federal pre-emption of state law in the absence of either a clear statutory prescription, see, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), or a direct conflict between federal" }, { "docid": "18668789", "title": "", "text": "U.S. at 525, 97 S.Ct. at 1309. Fortunately for our purposes here, Congress, in the Copyright Act of 1976, made its preemptive intentions quite explicit. Pursuant to 17 U.S.C. § 301(a), Congress has abolished, effective January 1, 1978, all state law rights in copyrightable material that are “equivalent to any of the exclusive rights” of copyright recognized in the statute. The only state law rights preserved by Congress are those which involve: 1. subject matter that is not copyrightable; 2. causes of action arising from works created before January 1, 1978; or 3. rights that are not equivalent to any of the exclusive rights recognized by the federal statute. 17 U.S.C. § 301(b). The works exhibited by HBO are generally “motion pictures and other audiovisual works”, 17 U.S.C. § 102(6), and are therefore proper subject matter for copyright protection. Moreover, many of the works exhibited by HBO were created after January 1, 1978. HBO’s state law claims are thus clearly pre-empted by the Copyright Act unless they involve rights that are “not equivalent” to the exclusive rights of copyright set forth in 17 U.S.C. § 106. In the case of motion pictures and audiovisual works, the Copyright Act grants the copyright owner exclusive rights to “perform” works (to show their images in any sequence or to make the sounds accompanying them audible to the public by means of any process) and to “display” them (to show individual images nonsequentially to the public by means of any process). The common law unfair competition doctrine upon which HBO relies seeks to vindicate equivalent, if not identical, rights; the misappropriation of which HBO complains is the lost right to exhibit for a profit the audiovisual works that comprise its programming. See, Metropolitan Opera Association, Inc. v. Wagner-Nichols Corp., supra, 101 N.Y.S.2d at 492. In the context of this case, “misappropriation” consists simply of acts of public performance. As such, it undoubtedly constitutes a right “within the general scope of copyright as specified by section 106” and HBO’s unfair competition claim is preempted by federal law. See, 1 M. Nimmer, supra, 1.01[B], at 1-16" }, { "docid": "6186522", "title": "", "text": "public display of individual images from motion pictures or audiovisual works. 17 U.S.C. § 106. State laws, whether statutory or common law, are subject to express preemption under Copyright Act § 301 only if they create rights that are “equivalent” to the exclusive rights within the general scope of copyright. See 17 U.S.C. § 301(a); see also Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir.1985) (holding that because literary works, including compilations and derivative works, are within the subject matter of copyright, state common law that purported to protect a work for which plaintiffs copyright action was unsuccessful was preempted); 1 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 1.01[B][1] (1998) (discussing various state law causes of action). As noted above, conflict preemption may arise either because “ ‘compliance with both regulations is a physical impossibility’ or because the state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Jones, 430 U.S. at 525, 97 S.Ct. 1305; see also Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). The purposes and objectives of Congress, which appear in the Copyright Act, are to implement a nationally uniform system for the creation and protection of rights in a copyrighted work. See Goldstein v. California, 412 U.S. 546, 561, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973) (turning “to federal copyright law to determine what objectives Congress intended to fulfill”). An illustration of conflict preemption under the Copyright Act is provided by Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 710-11,104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). That ease concerned an Oklahoma state law that banned advertising of alcoholic beverages by cable operators. However, the Copyright Revision Act of 1976 established a program of compulsory copyright licensing under the regulations of the Federal Communications Commission (FCC) pursuant to which a cable operator could transmit signals out of state upon payment of service royalties. The Supreme Court held that the Oklahoma law was preempted, not only because the FCC had explicitly preempted the area, but also" }, { "docid": "1044757", "title": "", "text": "L.Ed. 191] (1898), “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). This assumption provides assurance that “the federal-state balance,” United States v. Bass, 404 U.S. 336, 349 [92 S.Ct. 515, 523, 30 L.Ed.2d 488] (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably ... ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). To depart from that long tradition of interpretation in the present case is particularly inappropriate, because the language at issue was specifically adopted as a compromise between pro- and anti-preemption legislators, who must be presumed to have evaluated the deal with that tradition in mind. It is worth briefly describing the compromise, since the basic issue here is whether it will be enforced or disregarded. The original House version of the Staggers Act (H.R. 7235, 96th Cong., 2d Sess. (1980)) flatly ousted the states from all jurisdiction over intrastate rates. See 126 Cong.Rec. 17,793 (1980) (colloquy prepared by Rep. Madigan). Rep. Broyhill, however, introduced an amendment prompted by “great concern expressed by the public utility commission in my State and in others” about the elimination of state jurisdiction. Id. at 18,298. The amendment sought to “achieve a better balance between Federal regulation and State regulation,” id., by permitting states to continue to exercise jurisdiction over intrastate rates if they applied the rate regulation standards set forth in the Staggers Act and if their proposed regulatory procedures were approved by the ICC as consistent with its own procedures. Rep. Broyhill’s amendment was accepted by the majority of the" }, { "docid": "22229274", "title": "", "text": "in Reno v. ACLU, finding that the Internet allows “tens of millions of people to communicate with one another and to access vast amounts of information from around the world.[It] is ‘a unique and wholly new medium of worldwide human communication.’ ” — U.S. at —, 117 S.Ct. at 2334 (citation omitted). Application of the canon invoked by Zeran here would significantly lessen Congress’ power, derived from the Commerce Clause, to act in a field whose international character is apparent. While Congress allowed for the enforcement of “any State law that is consistent with [§ 230],” 47 U.S.C. § 230(d)(3), it is equally plain that Congress’ desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action. Section 230(d)(3) continues: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” With respect to federal-state preemption, the Court has advised: “[W]hen Congress has ‘unmistakably ... ordained,’ that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. The result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977) (citations omitted). Here, Congress’ command is explicitly 'stated. Its exercise of its commerce power is clear and counteracts the caution counseled, by the interpretive canon favoring retention of common law principles. III. The CDA was signed into law and became effective on February 8, 1996. Zeran did not file his complaint until April 23, 1996. Zeran contends that even if § 230 does bar the type of claim he brings here, it cannot be applied retroactiyély to bar an action arising from AOL’s alleged misconduct prior to the CDA’s enactment. We disagree. Section 230 applies by its plain terms to complaints brought after the CDA became effective. As noted in Part IIB, the statute provides, in part: “No cause of action may be brought and no" }, { "docid": "6439034", "title": "", "text": "date subsections (a) and (b) become effective may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing with gold in the United States or abroad.” Plaintiffs’ argument on this issue is not persuasive. In Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978), the United States Supreme Court stated: “The Court’s prior cases indicate that when a State’s exercise of its police power is challenged under the Supremacy Clause, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947); Jones v. Rath Packing Co., 430 U.S. 519, 525 [97 S.Ct. 1305, 1309, 51 L.Ed.2d 604] (1977). . . .” 435 U.S. at 157, 98 S.Ct. at 994. A state statute will fall if it is in direct conflict with national legislation [see generally, Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945)], or the United States has clearly pre-empted a given field [see Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)], or state law obstructs the execution of the full purpose and objectives of Congress [Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)]. Here, none of those considerations are present. The Act does not prohibit the holding, selling or othérwise dealing with gold. The Act merely regulates those persons or entities which engage in the sale of precious metals, of which one is gold. Further, there is no indication the Congress has pre-empted the field of regulating the sale of precious metals dealers. While the legislative history of Public Law 93-373 is sketchy, it is clear that the right to private gold ownership was not passed as a major statement of congressional policy in the field. Finally, the Precious Metals Dealers Act does not obstruct the" }, { "docid": "7557196", "title": "", "text": "court’s dismissal into a grant of summary judgment. Under Federal Rules of Civil Procedure 12(b) and 56(c), the district court should have notified the association that it intended to treat the defendant’s motion to dismiss as a motion for summary judgment. Furthermore, the court should have allowed the association a reasonable opportunity to establish the existence of material controverted facts. See Choudhry v. Jenkins, 7 Cir. 1977, 559 F.2d 1085, 1089, cert. denied, 434 U.S. 997, 98 S.Ct. 634, 54 L.Ed.2d 491; Macklin v. Butler, 7 Cir. 1977, 553 F.2d 525, 528 (per curiam); Winfrey v. Brewer, 8 Cir. 1978, 570 F.2d 761, 764. We call attention to this error for its prophylactic effect in future cases, but the error does not require reversal. If we assume the existence of all the facts alleged by the association, its challenges to the local ordinances fail nonetheless. We have concluded that the supremacy and commerce clauses allow municipalities to enact and enforce ordinances providing for the inspection of meat delivery vehicles at locations other than the premises of establishments regulated by the Act. IV. “No simple, mechanical formula can summarize the analysis necessary to determine whether a state statute is void under the supremacy clause.” Great Western United Corp. v. Kidwell, 5 Cir. 1978, 577 F.2d 1256, 1274 (citing cases). The first inquiry must be whether Congress has prohibited state regulation of the commerce involved in this case: [W]hen Congress has “unmistakably . ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Jones v. Rath Packing Co., 1977, 430 U.S. 519, 525, 97 S.Ct. 1305,1309, 51 L.Ed.2d 604. A federal law that does not exclude all state legislation nonetheless overrides state laws with which it conflicts. U.S.Const. art. VI. To ascertain whether the state law in question is" }, { "docid": "1044756", "title": "", "text": "this traditional sphere of state competence. Wheeling-Pittsburgh Steel Corp. v. ICC, 723 F.2d 346, 353 (3d Cir.1983). The majority’s only basis for its hypothesis of total preemption is a statement in the Conference Report that “the Act preempts state authority over rail rates, classifications, rules and practices,” H.R. Rep. No. 1430, 96th Cong., 2d Sess. 106 (1980), 1980 U.S. Code Cong. & Ad.News p. 4111-4112. I would agree it preempts: the question is how far — totally or only in part? Nothing suggests the former. In short, from both a technical and a practical point of view, what is at issue here is not the scope of a supposed federal cede-back, but the scope of a partial federal preemption. There is no doubt concerning the manner in which we are to resolve this issue: Where ... the field which Congress is said to have pre-empted has been traditionally occupied by the States, see, e.g., U.S. Const., Art. I, § 10; Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 358 [18 S.Ct. 862, 867, 43 L.Ed. 191] (1898), “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). This assumption provides assurance that “the federal-state balance,” United States v. Bass, 404 U.S. 336, 349 [92 S.Ct. 515, 523, 30 L.Ed.2d 488] (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably ... ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). To depart from that long tradition of interpretation in the present case is particularly inappropriate, because the language at issue was specifically" }, { "docid": "8348930", "title": "", "text": "in our dual-sovereignty governmental system. The leading case for this proposition is Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). In this case, the court had to decide whether a state’s packaging laws were preempted by federal laws regulating net-weight labeling. The Court stated the parameters of preemption analysis as follows: Where, as here, the field which Congress is said to have pre-empted has been traditionally occupied by the States, see, e.g., U.S. Const., Art. I, § 10; Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 358 [18 S.Ct. 862, 867, 43 L.Ed. 191] (1898), “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp. 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). This assumption provides assurance that “the federal-state balance,” United States v. Bass, 404 U.S. 336, 349 [92 S.Ct. 515, 523, 30 L.Ed.2d 488] (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably ... ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), that its enactments alone are to regulate a part of commerce, state law regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. 430 U.S. at 525, 97 S.Ct. at 1309, 51 L.Ed.2d at 614. See also California v. ARC America Corp., - U.S. -, -, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86, 94-95 (1989). As indicated in the last sentence of the quotation from the Rath Packing case, the caution which a federal court should exercise in dealing with preemption involving federal and state authorities does not prevent a finding of preemption where the Congressional intent is clear. The Su preme Court has squarely held that express preemption found in a federal statute" }, { "docid": "6962002", "title": "", "text": "intrastate rates of interstate rail carriers. First, to avoid complete federal preemption, a state agency must receive ICC certification of its standards and procedures. Second, to avoid ICC reversal of its decisions, a certified state agency must exercise its authority in accordance with the standards and procedures of the Interstate Commerce Act. Thus, although the Staggers Act grants the states the option of continuing to regulate intrastate rail rates, the Act is in nature a preemptive statute. If a state wishes to continue regulating, it must do so in accordance with federal policy. In concluding that the Act is preemptive, we are mindful of the clear-statement rule of statutory construction governing such a conclusion. Under this rule, a court cannot find that a federal law preempts state regulation of an activity historically regulated by the states, unless Congress has given a “clear statement” of its intent to preempt: “Where, as here, the field which Congress is said to have pre-empted has been traditionally occupied by the States, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ This assumption provides assurance that ‘the federal-state balance’ will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has ‘unmistakably ... ordained’ that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 1977, 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (citations omitted). Accord Florida Lime & Avocado Growers, Inc. v. Paul, 1963, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248; California v. Zook, 1949, 336 U.S. 725, 733, 69 S.Ct. 841, 845, 93 L.Ed. 1005; Rice v. Santa Fe Elevator Corp., 1947, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447; Savage v. Jones, 1912, 225 U.S. 501, 537, 32" }, { "docid": "22229275", "title": "", "text": "commerce, state laws regulating that aspect of commerce must fall. The result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977) (citations omitted). Here, Congress’ command is explicitly 'stated. Its exercise of its commerce power is clear and counteracts the caution counseled, by the interpretive canon favoring retention of common law principles. III. The CDA was signed into law and became effective on February 8, 1996. Zeran did not file his complaint until April 23, 1996. Zeran contends that even if § 230 does bar the type of claim he brings here, it cannot be applied retroactiyély to bar an action arising from AOL’s alleged misconduct prior to the CDA’s enactment. We disagree. Section 230 applies by its plain terms to complaints brought after the CDA became effective. As noted in Part IIB, the statute provides, in part: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(d)(3). Initially, it is doubtful that a retroactivity issue is even presented here. Retroactivity concerns arise when a statute applies to conduct predating its enactment. Section 230 does not directly regulate the activities of interactive computer service providers like AOL. Instead, § 230 is addressed only to the bringing of a cause of action. Here, Zeran did not file his complaint until over two months after § 230’s immunity became effective. Thus, the statute’s application in this litigation is in fact prospective. See St. Louis v. Texas Worker’s Compensation Comm’n, 65 F.3d 43, 46 (5th Cir.1995) (holding “issue is not technically one' of retroactivity” when statute applies to “filing of the complaint”), cert. denied, — U.S. —, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996); Vernon v. Cassadaga Valley Central Sch. Dist., 49 F.3d 886, 889 (2d Cir.1995) (same). Even if this were a case implicating the application of a federal statute to pre-enactment events, the Supreme" } ]

[ { "docid": "9614892", "title": "", "text": "Indemnity contemplates two parties at least at the time of making the contract. Suretyship always involves three parties. Id. at 236. Applying this distinction to the present case, Martin’s promise indeed appears to be one synonymous with insurance. The promise embodied in Paragraph 7 might have been operable between either Martin and Beck or Martin and FWSS without the “presence” of the third party. Further, the language of the agreement does not support the reading that liability would be satisfied by one other than the indemnitor. Finally, Indiana courts recognize that a right to indemnification can arise as a matter of law. See McClish v. Niagara Machine & Tool Works, 266 F.Supp. 987, 989 (S.D.Ind.1967). There is a degree of obvious illogic in concluding that indemnification can arise as a matter of law but that any express agreement to indemnify must be in writing in order to be enforceable. We conclude that the indemnification portion of the FWSS-Martin contract falls outside the statute of frauds provision codified as Section 32-2-1-1 and that Beck, as the intended third-party beneficiary of that contract, is able to maintain an action against Martin on the contract. IV. EXCLUSIVE REMEDY PROVISION The second ground upon which the district court relied in dismissing Beck’s claim and FWSS’s cross-claim was that the suits were inconsistent with the rationale behind the exclusive remedy provision of the Indiana Workmen’s Compensation provision, Ind.Code § 22-3-2-6 (Burns 1974). The magistrate had already concluded that any express contract was unenforceable. He relied therefore on two lines of precedent: (1) the rule, recognized by a majority of states, that a third-party tortfeasor has no right of contribution against a contributorily negligent employer who is subject to a workmen’s compensation scheme; and (2) cases applying Indiana law in which it was held that the exclusive remedy provision barred an employee’s common-law negligence suit premised on a dual capacity theory eg., Kottis v. United States Steel Corp., 543 F.2d 22 (7th Cir.1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1328, 51 L.Ed.2d 594 (1977). Our analysis differs from that of the district court because of" } ]

[ { "docid": "9614891", "title": "", "text": "for finding the present contract to be outside the statute: its similarity to a contract of insurance. FWSS relies on a portion of the Restatement of Security § 82 (1941). The Restatement recognizes that the chief importance for distinguishing between a “suretyship” and an “indemnity” contract is in cases involving the Statute of Frauds, which generally does not apply to contracts of indemnity. An oral contract of indemnity may generally be enforced but not an oral contract to answer for the debt, default, or miscarriage of another. Id. at 237. The Restatement makes the following distinction between the two kinds of contracts: A contract of indemnity is one where the promisor agrees to save a promisee harmless from some loss, irrespective of the liability of a third person. In this sense, indemnity is synonymous with insurance. The indemnitor, upon the happening of the stipulated contingency, is liable whether or not the indemnitee has any recourse against a third person. In sure-tyship, the normal expectation is that the liability will be satisfied by the third person. Indemnity contemplates two parties at least at the time of making the contract. Suretyship always involves three parties. Id. at 236. Applying this distinction to the present case, Martin’s promise indeed appears to be one synonymous with insurance. The promise embodied in Paragraph 7 might have been operable between either Martin and Beck or Martin and FWSS without the “presence” of the third party. Further, the language of the agreement does not support the reading that liability would be satisfied by one other than the indemnitor. Finally, Indiana courts recognize that a right to indemnification can arise as a matter of law. See McClish v. Niagara Machine & Tool Works, 266 F.Supp. 987, 989 (S.D.Ind.1967). There is a degree of obvious illogic in concluding that indemnification can arise as a matter of law but that any express agreement to indemnify must be in writing in order to be enforceable. We conclude that the indemnification portion of the FWSS-Martin contract falls outside the statute of frauds provision codified as Section 32-2-1-1 and that Beck, as the" }, { "docid": "22644414", "title": "", "text": "laws of that State, the courts of New York .would .enforce it, notwithstanding it would be illegal in that State. Boyle v. Zacharie, 6 Pet. 635, is a direct authority upon the point. There Zacharie and' Turner were resident merchants at New Orleans, and Boyle at Baltimore. The latter sent his ship to New;Orleans, consigned to Zacharie and Turner, where she arrived, and, having landed her cargo, the latter procured a freight for her to Liverpool. When she was ready to sail she was attached by process of law at the suit of certain creditors of Boyle, and Zacharie and Turner procured her release by becoming security for Boyle on the attachment. Upon information of the facts, Boyle promised to indemnify them for any loss they might sustain on that account. Judgment was rendered against them on the attachment bond, which they were compelled to pay, and to recover the amount so paid they brought suit in the Circuit Court for Maryland against Boyle upon his promise of indemnity. A judgment was rendered by confession in that cause, and a bill in equity was subsequently filed to enjoin further proceedings on it, in the course of which-various, questions arose, among them, whether the promise of indemnity was a Maryland or a Louisiana contract. Mr. Justice Story, delivering the opinion of the court, said: “ Such a contract would be understood by all parties to be a contract made in tbe place where the advance was to be made, and the payment, unless otherwise stipulated, would also be understood to be made there ; ” “that the contract.would clearly refer for its. execution to Louisiana.” The» very point was also decided by this court in Bell v. Bruen, 1 How. 169. That was an action upon a guaranty written by the defendant in New York, addressed to the plaintiffs in London, who, at the latter place, had made advances of a credit to Thorn. The operative language of the guaranty was, “ that you may consider this, as well as any and every other credit you may open in his favor," }, { "docid": "23676518", "title": "", "text": "and their insurance carriers, so long as Pennzoil is paid $3 billion and is given indemnities and releases under the Plan. The Icahn Group reasons that the derivative suits seek to recover assets for Texaco to compensate for what Texaco has to pay to Pennzoil under the Plan and that the recovery of any such assets for Texaco will not affect Pennzoil after it collects the $3 billion settlement because the Pennzoil representatives will be indemnified and released by Texaco under the Plan with regard to any possible subrogation claims. Moreover, the Icahn Group concludes that Texaco’s creditors will not be affected because assets may be retrieved for Texaco’s benefit, whereas the creditors will be fully paid under the Plan, together with interest, or they will be reinstated as if no default had occurred. The net effect of the indemnities and releases of non-Pennzoil interests and the discontinuances of the objectants’ derivative actions is to erase the potential liabilities of these third parties to Texaco. If these non-parties were possibly liable to creditors other than Texaco, such releases, indemnities and discontinuances of derivative actions would not be effective against the other creditors because such a result would be contrary to the principle expressed in 11 U.S.C. § 524(e), which is made applicable to Chapter 11 cases by 11 U.S.C. § 103(a). Section 524(e) states in relevant part that a ... discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt. Thus, payment to a creditor under a confirmed plan of reorganization “is not consideration for any promise by creditors, much less for one to release non-party obligations.” Union Carbide Corporation v. Newboles, 686 F.2d 593, 595 (7th Cir.1982). The confirmation of a Chapter 11 plan of reorganization should not release the obligations of non-party entities to creditors of a debtor. Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1050 (5th Cir.1987); United States v. Stribling Flying Service, Inc., 734 F.2d 221, 223 (5th Cir.1984). However, 11 U.S.C. § 524(e) does not apply to" }, { "docid": "16293075", "title": "", "text": "defendants rely on Judge Stewart’s decision in Halpern v. Rosenbloom, 459 F.Supp. 1346 (S.D.N.Y. 1978), in which two of three guarantors of a corporation’s indebtedness sued the third guarantor. The defendant counterclaimed against one plaintiff claiming inter alia that that plaintiff had orally agreed to indemnify him against any liability arising from his guarantee. The court held that such an agreement was within section 5-701(a)(2) and that the counterclaim was therefore barred. Id. at 1355. With all due respect to Judge Stewart, the Court believes that this interpretation of New York law overlooks clear authority to the contrary from the state courts which is, of course, controlling in this diversity action. In Jones v. Bacon, 145 N.Y. 446, 449, 40 N.E. 216 (1895), the Court of Appeals held that the “promise by one person to indemnify another for becoming a guaranty for a third is not within the statute [of frauds] and need not be in writing.” The holding of Jones v. Bacon was reaffirmed in Gilinsky v. Klionsky, 140 Misc. 724, 251 N.Y.S. 570 (Sup.Ct. Broome Co. 1931), in which Bernet Klionsky orally agreed that if the plaintiffs guaranteed the notes of his brother Israel, Bernet would indemnify the plaintiffs against loss. The plaintiffs became guarantors on Israel’s notes and when Israel defaulted they were required to pay Israel’s creditors. In a scholarly opinion, the court held that defendant’s promise was not within the statute of frauds, explaining: The defendant’s promise was not to pay the indebtedness of his brother Israel to the banks; his promise was to pay an indebtedness not then in existence, but which would come into existence if and when these plaintiffs as guarantors of the banks’ indebtedness were required to pay and did pay that indebtedness. Id. at 725-26, 251 N.Y.S. at 571-72. Quoting from an English opinion, the court stated that “there is a plain distinction between a promise to pay the creditor if the principal debtor makes default in payment, and a promise to keep a person who has entered, or is about to enter, into a contract of liability indemnified against" }, { "docid": "9614885", "title": "", "text": "“indemnitor” in Cheesman, Stephen Wiggins, had promised the creditor, Cheesman, that he would be responsible for any loss that Cheesman suffered as a result of paying the entire partnership debt owed by the creditor and Andrew Wiggins. Just as there is no magic to the label “indemnity agreement,” characterizing the agreement as a “primary obligation” or a “collateral obligation” is an unreliable approach to resolving the statute of frauds issue because whether an agreement is termed “primary” or “collateral” depends largely upon the court’s view of the intent of the parties to the agreement, Symons v. Burton, 83 Ind.App. 631, 149 N.E. 460, 461 (1925), and quite frequently courts use these terms in stating conclusions rather than in providing a workable test for analyzing an agreement, J. Murray, Law of Contracts § 316, at 650 (2d rev. ed. 1974); see S. Williston, supra, § 465, at 402. There are, however, well-established rules pertaining to the applicability of the statute of frauds that aid our analysis. First, it is a matter of hornbook law that the statute of frauds applies only to a promise between a creditor and a third party. If the promise is between the debtor and the third party, the oral agreement is not within the statute. J. Murray, supra, § 314, at 648; accord, S. Williston, supra, § 460, at 389 & n. 1; 2 A. Corbin, Corbin on Contracts, § 357, at 241 & n. 96 (1950). This is true even though the literal language of the statute would encompass a third person’s promise to a debtor, J. Murray, supra, § 314, at 648 n. 36, and the rule applies even if the third party also promises the creditor, A. Corbin, supra, § 357, at 243. This rule has long been followed by Indiana courts. For instance, in Crim v. Fitch, 53 Ind. 214 (1876), Fitch had purchased a threshing machine from Aultman and Taylor. At the time Fitch decided to sell the machine to Crim, he still owed Aultman and Taylor a balance on the debt. Fitch and Crim orally agreed that Crim would pay" }, { "docid": "9614887", "title": "", "text": "the remaining debt to Aultman and Taylor as part of the consideration for the purchase of the machine. Crim received the machine and eventually resold it. He never paid any part of the debt to Aultman and Taylor. Aultman and Taylor successfully sued Fitch. Fitch, in turn, sued Crim and recovered. In affirming that result, the Supreme Court of Indiana discussed whether the Fitch-Crim agreement was one to “answer for the debt, default, or miscarriage of another.” The court stated: We think it was not. Crim’s promise was not made to Aultman and Taylor, but to Fitch to pay Fitch’s debt to Aultman and Taylor.... If Crim’s promise had been to Aultman and Taylor, to pay Fitch’s debt to them, it would have been within the statute, and Aultman and Taylor could not have enforced the promise, unless it had been made in writing and properly signed. Id. at 215. A later Indiana case, relying on Crim, held that the oral promise of an as-signee to a lease that he would pay the rent of the assignor was enforceable. Wolke v. Fleming, 103 Ind. 105, 2 N.E. 325 (1885). The Wolke court noted that the rule exempting an agreement between a third party and a debtor from the statute of frauds was supported by “decisions ... from nearly all the courts of the Union.” 2 N.E. at 327. Indiana courts have also recognized that when a third party promises a debtor that he will pay the debtor’s debt to a creditor, the creditor has a right of action against the third party. Eg., Edwards v. Van Cleave, 47 Ind.App. 347, 94 N.E. 596 (1911). In Edwards, two real-estate brokers, Smith and Walkup, had promised to pay Van Cleave one-third of the commission resulting from the sale of the appellants’ land. After the sale was consummated, the appellants paid Smith and Walkup two-thirds of the total commission and promised to pay the remaining third directly to Van Cleave. They did hot do so. Van Cleave sued the appellants. The appellate court affirmed the judgment for Van Cleave, noting that the relevant" }, { "docid": "9614893", "title": "", "text": "intended third-party beneficiary of that contract, is able to maintain an action against Martin on the contract. IV. EXCLUSIVE REMEDY PROVISION The second ground upon which the district court relied in dismissing Beck’s claim and FWSS’s cross-claim was that the suits were inconsistent with the rationale behind the exclusive remedy provision of the Indiana Workmen’s Compensation provision, Ind.Code § 22-3-2-6 (Burns 1974). The magistrate had already concluded that any express contract was unenforceable. He relied therefore on two lines of precedent: (1) the rule, recognized by a majority of states, that a third-party tortfeasor has no right of contribution against a contributorily negligent employer who is subject to a workmen’s compensation scheme; and (2) cases applying Indiana law in which it was held that the exclusive remedy provision barred an employee’s common-law negligence suit premised on a dual capacity theory eg., Kottis v. United States Steel Corp., 543 F.2d 22 (7th Cir.1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1328, 51 L.Ed.2d 594 (1977). Our analysis differs from that of the district court because of our conclusion that the statute of frauds is not a bar to enforcement of an express contract between FWSS and Martin. A respected commentator has stated: When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee be cause of the operation of the exclusive remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation. 2A A. Larsen, Workmen’s Compensation § 76.00. Consistent with the distinction expressed by Larsen, courts have recognized the right of a third party to be indemnified by an employer subject to a workmen’s compensation act if the third party and employer were bound by an" }, { "docid": "1066672", "title": "", "text": "the effect of such amendment may be that ‘proof of claim’ is thereby effectively made only after the [bar date].” (emphasis added)). Since Beaver’s amendment would otherwise be subject to disallowance based on the prejudice to other parties that would result, see In re Kelly, 95 B.R. 758 (Bankr.D.Mont.1989), restricting the amendment to “prospective” application is consistent with the principle of liberally allowing amendments to proofs of claim. To summarize, I hold that Beaver’s letter to the trustee, timely submitted to the Court on February 1, 1991, constituted an informal proof of claim which, standing alone, did not entitle Beaver to share in the distribution of estate assets. I further hold that Beaver’s proof of claim filed on April 16, 1991, served as an amendment which corrected the defects in Beaver’s informal proof of claim, thereby entitling Beaver to share on an even basis with other creditors holding nonpriority unsecured claims in distributions made subsequent to the date the amending proof of claim was filed. An order to this effect has been entered. . The trustee does not explain why Beaver’s claim, if late, must be subordinated in this fashion. Although such treatment of untimely unsecured claims is required by 11 U.S.C. § 726(a), that provision is relevant to chapter 13 only for purposes of determining, pursuant to 11 U.S.C. § 1325(a)(4), whether the value of the stream of payments to creditors holding unsecured claims under the chapter 13 plan is at least equal to the dividend such creditors would receive in a hypothetical chapter 7 proceeding. See generally In re Hardy, 755 F.2d 75 (6th Cir.1985); cf. In re Kentucky Lumber Co., 860 F.2d 674, 676 (6th Cir.1988) (\"Section 726 does not apply directly to Chapter 11 cases. It does, however, apply indirectly through the \"best interests of creditors test’ found in section 1129(a)(7).”). And since the Debtor's plan would satisfy the \"best interest of creditors” test regardless of whether Beaver's claim is paid as if timely filed, § 726(a) does not mandate subordination of Beaver’s claim. The trustee's argument may derive from the terms of the Debtor’s plan," }, { "docid": "568445", "title": "", "text": "SIBJ,EY, District Judge. A. H. Penfield, a minority stockholder, seeks to annul an adjudication of Beaver Cotton Mills as a voluntary bankrupt because (1) the directors were without authority at the time of filing the petition, and (2) because the petition was in fraud of his stockholders’ bill then pending in the state court. The facts in outline are these: On April 19, 1920, the stockholders of the Beaver Mills, including Penfield, unanimously voted to unite with two other mills in the organization -of a new corporation to be called Couch Cotton Mills, Inc., to which they would sell their respective plants and assets for stock in the new corporation, which would assume their several liabilities. About June 1st, the new corporation was organized. Beaver Mills made a deed to its plant and an assignment of all its assets and received the stipulated stock. The Couch Company took possession of the assets, operated the plant, assumed the debts, amounting to some $114,000, and paid many of them, as was also true as to the other merging mills. In October, 1920, Penfield demanded of the directors of Beaver Mills, who were also directors of. the new company and majority stockholders in both, that the properly of the Beaver Mills be restored to it on account: of misrepresentation of the condition of the other merging companies and of the failure on the part of one of them to clear its property of liens as agreed. The Couch Company passed a resolution offering to do this if Beaver Mills would repay what had been paid to its creditors and assume the loss in operation of its mill since June 1st and its proportion of the overhead expenses of Couch Company during that time. Beaver Mills took no action on the proposal, and Penfield, on December 20, 1920, filed in a state court his bill in behalf of himself as a stockholder and all other stockholders similarly situated, and, averring the invalidity of the transfer of the Beaver Mills assets to Couch Company because of the fraud and failure of consideration mentioned above, and" }, { "docid": "9614888", "title": "", "text": "the assignor was enforceable. Wolke v. Fleming, 103 Ind. 105, 2 N.E. 325 (1885). The Wolke court noted that the rule exempting an agreement between a third party and a debtor from the statute of frauds was supported by “decisions ... from nearly all the courts of the Union.” 2 N.E. at 327. Indiana courts have also recognized that when a third party promises a debtor that he will pay the debtor’s debt to a creditor, the creditor has a right of action against the third party. Eg., Edwards v. Van Cleave, 47 Ind.App. 347, 94 N.E. 596 (1911). In Edwards, two real-estate brokers, Smith and Walkup, had promised to pay Van Cleave one-third of the commission resulting from the sale of the appellants’ land. After the sale was consummated, the appellants paid Smith and Walkup two-thirds of the total commission and promised to pay the remaining third directly to Van Cleave. They did hot do so. Van Cleave sued the appellants. The appellate court affirmed the judgment for Van Cleave, noting that the relevant “contract” was the appellants’ promise to Smith and Walkup that they would pay the one-third commission directly to Van Cleave. The court stated: “A third party may maintain an action on a contract made for his benefit.. . . Such promise to pay the debt of another does not fall within the statute of frauds.” 94 N.E. at 597 (citations omitted). Edwards is support for the propositions that the FWSS-Martin contract is not within the statute of frauds and that Beck may recover from Martin pursuant to that contract. Application of the Crim rule to the present case compels the conclusion that the FWSS-Martin oral agreement is not within the statute of frauds. Martin’s promise was made to a potential “debtor” rather than to any party that could plausibly be termed a creditor. The most straightforward analysis of the facts is that Martin’s promise was made to FWSS and that FWSS was a potential debtor as to Beck. Even if one construes the promise more broadly, recognizing that Beck was an intended beneficiary of the" }, { "docid": "20639948", "title": "", "text": "non-exclusive license, retroactive to July 27, 1994 and continuing in perpetuity, to use and exploit the Beaver in connection with Fox’s Scrat. (Bogin Decl. Ex. A.) The new agreement also contains a release from liability for any future use Fox might make of the Beaver. (Id.) In spite of this scramble to assert ownership of the Beaver copyright, defendants are not contending that they based their Scrat on the Beaver. Rather, they base their motion for summary judgment on five primary fronts. First, they argue that their license to use the Beaver cartoon operates to preclude a copyright infringement claim as to any features of plaintiffs Sqrat that were in the original Beaver cartoon. Second, they claim that Silber-stein has failed to present evidence that the creators of the Ice Age Scrat ever had access to the Sqrat logo, as would be necessary for her to prove that copying had taken place. Third, they maintain that the evidence of independent creation of Scrat defeats any claim of actual copying of Sqrat. Fourth, they contend that Scrat is not substantially similar to the protectible elements of the Sqrat logo. Fifth, they argue that the evidence does not support a claim of trademark infringement because (1) Silberstein has not used the word “Sqrat” or the Sqrat logo in commerce; (2) “Sqrat” is a descriptive term, thus necessitating a showing that the term had secondary meaning, and Silberstein has failed to put in evidence of secondary meaning; and (3) the evidence cannot support a claim of likelihood of confusion. Defendants also contend that the evidence cannot support plaintiffs state law claims. DISCUSSION I. Summary Judgment Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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 reviewing the record, the district court must assess the evidence in “a light most" }, { "docid": "8512064", "title": "", "text": "Ebsary, and Niagara, on the other part. In 1923 Certain-teed, originally a manufacturer of roofing products, entered the gypsum industry with the acquisition of the Acme Cement Plaster Company (Acme). In 1926 it commenced the manufacture o. open-edge gypsum board at the former Acme plant in Texas. On January 20, 1928, it purchased the assets of Beaver. Beaver was then making a closed-edge board. Certain-teed refused to assume the Beaver-USG settlement agreement and license. USG thereupon, on or about February 21, 1928, instituted suit in the District Court of the United States in Illinois against Certain-teed and Beaver, seeking an injunction against the distribution of the proceeds of sale to the Beaver stockholders and asserting that Certain-teed should be required to assume all liabilities of Beaver under its-settlement agreement and license. Certain-teed was required to put up a million dollar bond, or otherwise to suffer a temporary injunction, as security for damages which might be found due to USG.' On May 22, 1929, ' Certain-teed settled this shit with-USG, agreeing to pay damages of approximately $64,000 and to fulfill the obligations of Beaver under its original settlement agreement and license; USG executed in-Certain-teed’s favor a patent license agreement and the suit was dismissed and the-bond released. A supplemental license agreement between USG and Certain-teed covering a bundling process patent, more particularly referred to below, was executed on July 3, 1929. On May 16, 1929,. National settled two patént infringement suits which USG had brought against it, one on November 5, 1926, the other on May 7,, 1928, paying on account of damages approximately $178,000 and entering into a patent license agreement with USG. National had commenced the manufacture of a modified closed-edge gypsum board in 1926. Ebsary, which had commenced making open-edge gypsum board in 192B, was granted a patent license by USG on May 22, 1929. This license was not a part of settlement of an infringement claim, since Ebsary had not manufactured closed-edge board and there was no infringement suit or basis therefor against it. Niagara commenced making an open-edge gypsum board, but later made board with a" }, { "docid": "1066647", "title": "", "text": "December 4, 1990, all parties listed on the matrix were served with a notice of the bankruptcy filing, which advised that the meeting of creditors required by 11 U.S.C. § 341 would be held on January 10, 1991, and that the last date for filing a proof of claim was April 10, 1991. On January 21, 1991, eleven days after attending the creditors’ meeting, Beaver’s credit manager mailed a letter to the chapter 13 trustee in which she expressed misgivings about the Debtor’s proposed plan. The letter also displayed Beaver’s irritation “that [the Debtor] owed Beaver over $20,-000.00 yet was buying expensive jewelry.” A copy of this letter was received by the bankruptcy court clerk on February 1, 1991. However, Beaver did not file a proof of claim, as such, until April 16, 1991, six days after the bar date established by F.R.Bankr.P. 3002(c). The Debtor’s plan was confirmed on April 17, 1991. On May 14, 1991, Beaver filed a motion in which it argued that its letter and/or other actions it took prior to the bar date constituted an “informal” proof of claim, the defects of which were cured by its “amending” proof of claim filed after the bar date. Because its informal claim was made prior to expiration of the bar date, Beaver urged the Court to allow its claim as timely filed. The Debtor and the trustee opposed this motion, arguing that the facts of this case do not warrant application of the informal proof of claim doctrine, and stressing that the payment of Beaver’s claim as though it were timely filed would be “prejudicial” to other creditors with unsecured claims. This assertion is undoubtedly correct from a strictly financial standpoint, inasmuch as the allowance of Beaver’s claim as timely filed would reduce the dividend to creditors holding timely unsecured claims from 77% to approximately 38.6%, resulting in an aggregate loss to them of about $8,640. After a hearing, I now issue the following findings of fact and conclusions of law pursuant to F.R.Bankr.P. 7052. DISCUSSION The trustee does not oppose the allowance, per se, of Beaver’s" }, { "docid": "9614886", "title": "", "text": "statute of frauds applies only to a promise between a creditor and a third party. If the promise is between the debtor and the third party, the oral agreement is not within the statute. J. Murray, supra, § 314, at 648; accord, S. Williston, supra, § 460, at 389 & n. 1; 2 A. Corbin, Corbin on Contracts, § 357, at 241 & n. 96 (1950). This is true even though the literal language of the statute would encompass a third person’s promise to a debtor, J. Murray, supra, § 314, at 648 n. 36, and the rule applies even if the third party also promises the creditor, A. Corbin, supra, § 357, at 243. This rule has long been followed by Indiana courts. For instance, in Crim v. Fitch, 53 Ind. 214 (1876), Fitch had purchased a threshing machine from Aultman and Taylor. At the time Fitch decided to sell the machine to Crim, he still owed Aultman and Taylor a balance on the debt. Fitch and Crim orally agreed that Crim would pay the remaining debt to Aultman and Taylor as part of the consideration for the purchase of the machine. Crim received the machine and eventually resold it. He never paid any part of the debt to Aultman and Taylor. Aultman and Taylor successfully sued Fitch. Fitch, in turn, sued Crim and recovered. In affirming that result, the Supreme Court of Indiana discussed whether the Fitch-Crim agreement was one to “answer for the debt, default, or miscarriage of another.” The court stated: We think it was not. Crim’s promise was not made to Aultman and Taylor, but to Fitch to pay Fitch’s debt to Aultman and Taylor.... If Crim’s promise had been to Aultman and Taylor, to pay Fitch’s debt to them, it would have been within the statute, and Aultman and Taylor could not have enforced the promise, unless it had been made in writing and properly signed. Id. at 215. A later Indiana case, relying on Crim, held that the oral promise of an as-signee to a lease that he would pay the rent of" }, { "docid": "9669564", "title": "", "text": "of 1974. The use of the word “insurance” in the statute is not determinative in light of the realities existing between the relevant parties. The nature of the substantive rights and duties among the parties clearly reflects a surety-principal-lender relationship. Insurance is a contract where one undertakes to indemnify another against loss, damage or liability caused by an unknown or contingent event. Since the insured pays the insurer for the promise of indemnity, the insurer benefits to the extent that a contingency never occurs. Where a contingency does occur, the insurer can still be made whole, by virtue of subro-gation, to the extent that the insured would be able to recover damages from a third party. Despite the presence of this right of subrogation it is clear that when the contract is formed all legal rights and obligations flow between the insurer and the insured. At this initial stage, there is no legal obligation owing from the third party to the insurer! In fact, it is unknown at that stage whether such a third party obligation will ever arise and, if so, who that third party will be. A surety, on the other hand, promises to assume the responsibility for the payment of a debt incurred by another should he or she fail to repay the creditor. The arrangement is made to induce the creditor to deal with the borrower where there might otherwise be a reluctance to do so. Under this arrangement, the nature, size, and source of the possible loss to the creditor is known from the start. In addition, there is no payment from the creditor to the surety or guarantor for this “insured” payment. Rather, a kind of tripartite relationship is formed. The consideration running from the creditor to the debtor is deemed sufficient to support the surety’s promise to make the debt good. In turn, the benefit flowing to the debtor by virtue of the surety’s promise places that debtor under an implied legal obligation to make good any loss incurred by any payment the surety must ultimately make to the creditor. 74 Am.Jur.2d Suretyship" }, { "docid": "1066673", "title": "", "text": "trustee does not explain why Beaver’s claim, if late, must be subordinated in this fashion. Although such treatment of untimely unsecured claims is required by 11 U.S.C. § 726(a), that provision is relevant to chapter 13 only for purposes of determining, pursuant to 11 U.S.C. § 1325(a)(4), whether the value of the stream of payments to creditors holding unsecured claims under the chapter 13 plan is at least equal to the dividend such creditors would receive in a hypothetical chapter 7 proceeding. See generally In re Hardy, 755 F.2d 75 (6th Cir.1985); cf. In re Kentucky Lumber Co., 860 F.2d 674, 676 (6th Cir.1988) (\"Section 726 does not apply directly to Chapter 11 cases. It does, however, apply indirectly through the \"best interests of creditors test’ found in section 1129(a)(7).”). And since the Debtor's plan would satisfy the \"best interest of creditors” test regardless of whether Beaver's claim is paid as if timely filed, § 726(a) does not mandate subordination of Beaver’s claim. The trustee's argument may derive from the terms of the Debtor’s plan, which allows only for the payment of \"duly filed” unsecured claims. This qualifier arguably excludes claims filed after the bar date. See Black’s Law Dictionary (5th ed. 1979) (Defining “duly” as \"according to legal requirements.\"). In any event, Beaver did not challenge the contention that its claim must be fully subordinated if deemed late, so for purposes of this opinion I have assumed that the trustee’s premise is correct. . The letterhead reveals that Beaver is a ceramic tile distributor, and the letter states that the Debtor “stopped paying on her account in March of 1990.” A logical inference, then, is that the basis for Beaver’s claim is goods sold by Beaver to the Debtor. In conjunction with the fact that the letter also expresses Beaver’s interest in maximizing the amount that “could be disbursed to the unsecured creditors,” one could also infer that Beaver held an unsecured nonpri-ority claim. But administration of the estate would hardly be facilitated if, as aptly stated by the trustee, he were required \"to look for hidden meaning in" }, { "docid": "1066646", "title": "", "text": "MEMORANDUM OPINION ON MOTION TO ALLOW INFORMAL PROOF OF CLAIM AS TIMELY FILED ARTHUR J. SPECTOR, Bankruptcy Judge. FACTS In this case, a creditor with a nonpriority unsecured claim requests that I deem its late-filed proof of claim to be an amendment to its timely “informal” claim so that it may be paid on a par with those creditors who filed their proofs of claim within the time permitted by law. For the reasons which follow, I hold that the “informal proof of claim” doctrine provides some relief to this creditor. On November 7, 1990, Beaver Distributors, Inc. commenced a lawsuit in state court against Constance I. Dietz, now the Debtor, seeking judgment in the amount of $22,074.27. Shortly thereafter, on December 3, 1990, the Debtor filed a petition for relief under chapter 13 of the Bankruptcy Code, and scheduled Beaver as a creditor holding an unsecured claim for the amount mentioned. Both Beaver and the attorney representing it in the state-court action were listed on the mailing matrix filed with the Debtor’s petition. On December 4, 1990, all parties listed on the matrix were served with a notice of the bankruptcy filing, which advised that the meeting of creditors required by 11 U.S.C. § 341 would be held on January 10, 1991, and that the last date for filing a proof of claim was April 10, 1991. On January 21, 1991, eleven days after attending the creditors’ meeting, Beaver’s credit manager mailed a letter to the chapter 13 trustee in which she expressed misgivings about the Debtor’s proposed plan. The letter also displayed Beaver’s irritation “that [the Debtor] owed Beaver over $20,-000.00 yet was buying expensive jewelry.” A copy of this letter was received by the bankruptcy court clerk on February 1, 1991. However, Beaver did not file a proof of claim, as such, until April 16, 1991, six days after the bar date established by F.R.Bankr.P. 3002(c). The Debtor’s plan was confirmed on April 17, 1991. On May 14, 1991, Beaver filed a motion in which it argued that its letter and/or other actions it took prior to" }, { "docid": "13689734", "title": "", "text": "obligations to its landlord and the guarantor received in return from the debtor its promise to indemnify for any liability incurred on the guarantee. Distinguishing that situation from the common-law indemnity claims raised in Pacor, the Court of Appeals offered two points of comparison: (1) that a judgment in favor of the landlord against the non-debtor guarantor would trigger the debtor’s liability on the indemnity agreement, and (2) the landlord’s claim against a guarantor of the estate would necessarily affect the landlord’s status with respect to other creditors. Pacor1 s discussion of Brentano was technically dictum, because in the end the Third Circuit found no related-to bankruptcy jurisdiction. However, appellate courts applying Pacor have recognized that “the clear implication of the decision is that, if there had been a contract to indemnify, a contrary result would have been in order.” A.H. Robins, 788 F.2d at 1001. The clarity of that implication notwithstanding, cases since Pacor have failed to endorse the proposition that any con tract of indemnification will support an extension of related-to jurisdiction. As will be discussed, this failure has its own implications too, relevant to the motions at bar. As to the vast majority of the claims that are the subject of the Court’s provisional transfer orders, the movants have produced no evidence whatsoever of even a bare agreement to indemnify running between the debtors and the solvent co-defendants. Of the Big Three, Ford Motor Company and General Motors rely only on affidavits of employees that recall one or more of the debtors as a supplier of brake parts to them. Likewise, the International Automakers proffer an employee affidavit that stops well short of even suggesting that there was any promise to indemnify. Nor does Honeywell make a showing that an explicit agreement to indemnify existed. The Court sees no justification to take the situation of these movants outside of the rule of Pacor. A judgment against them will not bind the debtors. No asset of the estate is threatened nor is any reordering of creditors in the offing. It is true that recovery by asbestos claimants against" }, { "docid": "20639947", "title": "", "text": "Szafarczyk, an independent contractor. (Id, Ex. D at 50:6 — 14, 108:14 — 22.) The ensuing dispute between DAS and Szafarczyk went to arbitration, and after a hearing on the issue, on July 1, 2003, the arbitrator awarded an undivided one-half ownership of the Beaver copyright to each party, effective July 27, 1999. (Cane Decl. Ex. E; Bogin Decl. Ex. A.) The final award, which by its terms legally bound the assignees of both parties (Cane Decl. Ex. E), was confirmed by an Arizona Superior Court judge (Zavin Decl. Ex. C). Subsequently, in or around July 2003, Sil-berstein purchased Szafarczyk’s rights in and to the Beaver, retroactive to the date of the Beaver’s creation in July 1994. (Sil-berstein Decl. Ex. K.) Further, in or around September 2003, Fox and DAS entered into a second agreement that superseded and voided the March 2002 agreement based on the fact that the parties had, at the time of that prior agreement, lacked knowledge as to the ownership of the Beaver copyright. Under the new agreement, Fox gained a non-exclusive license, retroactive to July 27, 1994 and continuing in perpetuity, to use and exploit the Beaver in connection with Fox’s Scrat. (Bogin Decl. Ex. A.) The new agreement also contains a release from liability for any future use Fox might make of the Beaver. (Id.) In spite of this scramble to assert ownership of the Beaver copyright, defendants are not contending that they based their Scrat on the Beaver. Rather, they base their motion for summary judgment on five primary fronts. First, they argue that their license to use the Beaver cartoon operates to preclude a copyright infringement claim as to any features of plaintiffs Sqrat that were in the original Beaver cartoon. Second, they claim that Silber-stein has failed to present evidence that the creators of the Ice Age Scrat ever had access to the Sqrat logo, as would be necessary for her to prove that copying had taken place. Third, they maintain that the evidence of independent creation of Scrat defeats any claim of actual copying of Sqrat. Fourth, they contend that" }, { "docid": "13268432", "title": "", "text": "first Dow Coming factor, a court must consider whether there is an identity of interests—usually an indemnity obligation—between the debtor and the released parties. A nondebtor release may be appropriate in such circumstances because a suit against the non-debtor may, “in essence, [be] a suit against the debtor” that risks “depleting] the assets of the estate.” NHF I, 663 F.3d at 711 (quoting In re Dow Corning, 280 F.3d at 658). We conclude that NHF has demonstrated an identity of interests between itself and the Released Parties. Under the terms of its bylaws, NHF must advance legal expenses and indemnify its officers and directors for “any action ... in which such person may be involved by reason of his being or having been a director or officer of’ NHF. J.A. 868. No security is required to ensure the covered parties repay NHF for any advanced expenses. See also In re Nat’l Heritage Found., 478 B.R. at 227-28 (describing the scope of NHF’s indemnification provisions). Such an expansive indemnity obligation is sufficient to satisfy the first Dow Coming factor. 2. The second Dow Coming factor required NHF to demonstrate that the Released Parties made a substantial contribution of assets to its reorganization. NHF I, 663 F.3d at 711. In effect, this factor ensures that in order for a Released Party to achieve that status, it must have provided a cognizable and valid contribution to the debtor as part of the debtor’s reorganization. None of the Released Parties in this case made any financial contribution to the reorganization. NHF nonetheless argues that its officers and directors satisfied this requirement by promising to continue serving NHF. As an initial matter, there is no evidence in the record to support NHF’s assertion that its officers and directors actually promised to continue serving NHF. Even if such a promise had been made, we find no error in the district court’s conclusion that it would not constitute a substantial contribution of assets in this case. As the bankruptcy court found, NHF’s “officers and directors, all of whom are insiders, performed their duties either because they were" } ]

[ { "docid": "7483093", "title": "", "text": "situation. V. T. H. Bien, 20 T.C. 49, 53 (1953). Ordinarily, a method of accounting which is in accordance with generally accepted accounting principles will be regarded as clearly reflecting income for tax purposes if it is used consistently and if the taxpayer continues in existence. Sec. 1.446-1 (a) (2), Income Tax Regs.; Jud Plumbing & Heating, Inc., 5 T.C. 127, 134 (1945), affd. 153 F. 2d 681 (C.A. 5, 1946); L. A. Wells Construction Co., 46 B.T.A. 302 (1942), affirmed per curiam 134 F. 2d 623 (C.A. 6, 1943), certiorari denied 319 U.S. 771 (1943); R. G. Bent Co., 26 B.T.A. 1369 (1932), involving “flat contract price,” “fixed fee with upset price,” and “flat percentage” contracts; Russell G. Finn et al., 22 B.T.A. 799 (1931), involving “lump-sum” and “cost plus a percentage of cost” contracts; Alfred E. Badgley, 21 B.T.A. 1055 (1931), affirmed per curiam 59 F. 2d 203 (C.A. 2, 1932), involving “cost plus a fixed fee” contracts. After reviewing the expert testimony in this case and examining other authoritative materials, we are convinced, and accordingly have found as a fact, that the completed-contract method of accounting is a generally accepted method of reporting income from cost-plus contracts. Furthermore, the record in this case shows that the petitioner has consistently used this method since 1920 in reporting its income from long-term construction contracts, a key factor in the reporting of income regardless of the method or system of accounting employed. Advertisers Exchange, Inc., 25 T.C. 1086, 1092 (1956), affirmed per curiam 240 F. 2d 958 (C.A. 2, 1957). Thus, the method of accounting used by petitioner, on its face at least, would seem to satisfy the dictates of section 1.446-1 (a) (2) of the regulations and the cases noted above. Respondent contends, however, that under the circumstances of this case this is not enough. He argues, in effect, that since the cost-plus contracts involved herein provided for periodic progress payments, which payments represented a reasonably accurate measure of the income earned during the periods covered by the payments, and inasmuch as the danger of subsequent loss of such" } ]

[ { "docid": "10414126", "title": "", "text": "comports with generally accepted accounting principles, is consistently used by the taxpayer from year to year, and is consistent with the regulations. Sec. 1.446-1(c)(1)(ii), Income Tax Regs. The cycle meter reading method of accounting is in accord with generally accepted accounting principles and is predominate in use within the utilities industry. See Public Service Co. of New Hampshire v. Commissioner, supra at 456; Commissioner v. Idaho Power Co., 418 U.S. 1, 15 (1974); Madison Gas & Electric Co. v. Commissioner, 72 T.C. 521, 556 (1979), affd. 633 F.2d 512 (7th Cir. 1980). It has long been considered a generally accepted accounting principle for utilities to accrue revenues based on either cycle meter readings or bills rendered basis with no accounting recognition of unbilled revenue, and certified public accountants issue unqualified financial statements prepared so as to accrue revenue when meters are read or the consumer is billed. Financial statements which reflect unbilled revenue also are prepared in accordance with generally accepted accounting principles. Petitioners have consistently used the cycle meter reading method of ac counting for tax purposes from incorporation over 50 years ago through the tax years in issue and for financial statement purposes from incorporation through the year ended December 31, 1969. The issue as to whether the cycle meter reading method of accounting is a permissible method of accounting must focus upon the determination as to whether such method is consistent with the regulations. Section 1.446(c)(l)(ii), Income Tax Regs., states that “Generally under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. “Accordingly, the cycle meter reading method of accounting which operates to defer unbilled December revenue, will be a permissible method of accrual accounting within section 446(c)(2) if all events which fix petitioners’ right to receive such unbilled revenue have not occurred as of December 31 of each year in issue or the amount thereof cannot be determined with reasonable accuracy. Sec. 1.446-l(c)(l)(ii), Income Tax Regs. Respondent asserts that" }, { "docid": "16915933", "title": "", "text": "determination “is not to be set aside unless shown to be ‘plainly arbitrary.’” Thor Power Tool Co. v. Commissioner, supra at 532-533 (quoting Lucas v. Structural Steel Co., 281 U.S. 264, 271 (1930)). See also Prabel v. Commissioner, supra at 1112; Coors v. Commissioner, 60 T.C. 368, 394 (1973), affd. 519 F.2d 1280 (10th Cir. 1975). Although the Commissioner has broad discretion, she cannot require a taxpayer to change from an accounting method which clearly reflects income because the Commissioner considers an alternate method to more clearly reflect income. Molsen v. Commissioner, 85 T.C. 485, 498 (1985); Peninsula Steel Products & Equip. v. Commissioner, supra at 1045; Fort Howard Paper Co. v. Commissioner, 49 T.C. 275 (1967). If a taxpayer's method of accounting is specifically authorized by the Internal Revenue Code or the underlying regulations and has been applied on a consistent basis, respondent has not been allowed to arbitrarily require a change or reject the taxpayer's method. Prabel v. Commissioner, supra at 1112; Hallmark Cards, Inc. v. Commissioner, 90 T.C. 26, 31 (1988). Our inquiry is limited to the question of whether the accounting method in issue satisfies the clear reflection standard of the statute, and we do not decide whether a method is superior to other possible methods. Auburn Packing Co. v. Commissioner, 60 T.C. 794, 799-800 (1973). Whether a particular method of accounting clearly reflects income is a question of fact, and the issue must be decided on a case-by-case basis. Capitol Federal Savings & Loan v. Commissioner, supra at 210; Peninsula Steel Products & Equip. Co. v. Commissioner, supra at 1045. With these general rules and principles as a backdrop, we proceed to consider the arguments of the parties. The parties have structured their arguments into several categories and, similarly to the question concerning timber blocks, they relied heavily upon expert witnesses. We consider each argument separately. 1. Clear Reflection — Composite vs. Separate Accounts Initially, petitioner, citing Osterloh v. Lucas, 37 F.2d 277, 278 (9th Cir. 1930), argues that the rule or standard for “clear reflection of income” established in the Ninth Circuit is that" }, { "docid": "10414125", "title": "", "text": "petitioner’s unbilled December revenues are properly accruable in December within the meaning of section 1.446-l(c)(l)(ii), Income Tax Regs., is the linchpin of respondent’s argument under section 446(c), because if they are not properly accruable, then petitioner’s meter reading and billing cycle method of accounting is an accrual method within the meaning of respondent’s regulations, and as such, it is a “permissible method” pursuant to section 446(c)(2). That is, respondent’s arguments under section 446(c)(4) are premised on our finding that petitioner’s method of accounting is a “hybrid” * * * rather than an accrual method, * * * [Public Service Co. of New Hampshire v. Commissioner, supra at 453-454; citations omitted.] We also noted that the billing requirements of the applicable public utility commission regulations and rate tariffs “may well be critical with respect to the issue of accruability.” Public Service Co. of New Hampshire v. Commissioner, supra at 454-455. The method of accounting used by a taxpayer to determine when income is recognized will be accepted as a permitted method of accounting if such method comports with generally accepted accounting principles, is consistently used by the taxpayer from year to year, and is consistent with the regulations. Sec. 1.446-1(c)(1)(ii), Income Tax Regs. The cycle meter reading method of accounting is in accord with generally accepted accounting principles and is predominate in use within the utilities industry. See Public Service Co. of New Hampshire v. Commissioner, supra at 456; Commissioner v. Idaho Power Co., 418 U.S. 1, 15 (1974); Madison Gas & Electric Co. v. Commissioner, 72 T.C. 521, 556 (1979), affd. 633 F.2d 512 (7th Cir. 1980). It has long been considered a generally accepted accounting principle for utilities to accrue revenues based on either cycle meter readings or bills rendered basis with no accounting recognition of unbilled revenue, and certified public accountants issue unqualified financial statements prepared so as to accrue revenue when meters are read or the consumer is billed. Financial statements which reflect unbilled revenue also are prepared in accordance with generally accepted accounting principles. Petitioners have consistently used the cycle meter reading method of ac counting" }, { "docid": "20077220", "title": "", "text": "of the regulations, which govern the timing of deductions under the accrual method. Applying such test to the unfixed, delivered, on-call purchase contracts involved here, the Commissioner argues that the provisional payments advanced in 1977 are includable in purchases but that no yearend accrual may be made for the estimated additional amounts due under the contracts because Molsen & Co.’s liability for such additional amounts was contingent until the time that the sellers actually called the price. The petitioners, on the other hand, contend that the Commissioner acted arbitrarily and abused his discretion in disallowing the year-end accrual for the unfixed, on-call purchases because such accrual conformed to industry-wide practice and to generally accepted accounting principles, was consistently applied year after year, and, most importantly, was necessary in order to clearly reflect the company’s income. The petitioners present a variety of arguments, but their basic position is that the Commissioner, having recognized the need of cotton merchants for, and the practice of, valuing ending inventory at market, was arbitrary in rejecting their companion practice of bringing unfixed, delivered, on-call purchases to market; to value their inventories at market in any event and to deny them the opportunity to bring their purchase costs to market results, they maintain, in a substantial distortion of income. As stated above, if a taxpayer uses inventories, purchases must be accounted for under the accrual method in order to accurately reflect the cost of goods sold during the year. Sec. 1.446-l(c)(2), Income Tax Regs. The all events test relied upon by the Commissioner has long been a cornerstone of the accrual method of accounting for Federal income tax purposes. See, e.g., Brown v. Helvering, 291 U.S. 193 (1934); Lucas v. American Code Co., 280 U.S. 445 (1930); United States v. Anderson, 269 U.S. 422 (1926). The regulations describe the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions" }, { "docid": "20077215", "title": "", "text": "42 T.C. 926 (1964); All-Steel Equipment Inc. v. Commissioner, 54 T.C. 1749, 1751 (1970), affd. per curiam on this issue 467 F.2d 1184 (7th Cir. 1972). Where inventories are employed, purchases and sales must be computed on the accrual method (unless another method is authorized by the Commissioner) in order to avoid the distortion of income. Sec. 1.446-1(c)(2), Income Tax Regs.; Stoller v. United States, 162 Ct. Cl. 839, 845, 320 F.2d 340, 343 (1963). Inventories are most commonly valued at either (1) cost or (2) the lower of cost or market. Sec. 1.471-2(c), Income Tax Regs. Use of the latter method accelerates the recognition of unrealized losses on the inventory: where the market value of the inventory on hand at yearend has fallen below its original cost, the decline is recognized as a loss for income tax purposes even though the inventory has not been sold during the year. St. James Sugar Co-op, Inc. v. United States, supra at 1226; D. Loveman & Son Export Corp. v. Commissioner, 34 T.C. 776, 798 (1960), affd. 296 F.2d 732 (6th Cir. 1961). The lower of cost or market method, expressly approved by the regulations, is a recognized exception to the principle of annual accounting that only closed transactions occurring during the taxable year may be reflected on the year’s tax return. St. James Sugar Co-op, Inc. v. United States, supra. Molsen & Co.’s method of valuing ending inventory at market, whether higher or lower than cost, results in the recognition of unrealized gains as well as unrealized losses on the inventory. Valuation at market is the longstanding practice of cotton merchants. Expressly authorized for dealers in securities by section 1.471-5 of the regulations, such method was originally approved for cotton merchants and other dealers in commodities in S.M. 5693, supra, and was reap-proved in Rev. Rul. 74-227, supra. The method was approved on the basis of a brief submitted on behalf of cotton merchants and made a part of A.R.M. 135, 5 C.B. 67, 69 (1921), wherein it was explained: The bales bought by the cotton merchant from day to day" }, { "docid": "20077219", "title": "", "text": "contracts declines as the market value of the cotton inventory declines. If the market price were to fall below the amount which Molsen & Co. advanced as a provisional payment under its unfixed, on-call purchases, the amount potentially receivable by the company from the sellers (assuming, as under most of the Memphis territory contracts, that the provisional payment was not a guaranteed minimum price) would be offset against the loss recognized on the inventory. At the end of 1977, the market and futures prices of cotton were rising, and Molsen & Co. accrued $1,099,464.58 to the cost of purchases as the amount that it would have owed on December 31 had the sellers under the Memphis territory and Texas contracts, which were unfixed, called their prices on that day. As it turned out, the market continued to rise, and Molsen & Co. eventually paid about $1,839,633.70 in 1978 in final settlement of the contracts. The Commissioner contends that purchases are an expense subject to the \"all events” test of sections 1.446 — l(c)(l)(ii) and 1.461-l(a)(2) of the regulations, which govern the timing of deductions under the accrual method. Applying such test to the unfixed, delivered, on-call purchase contracts involved here, the Commissioner argues that the provisional payments advanced in 1977 are includable in purchases but that no yearend accrual may be made for the estimated additional amounts due under the contracts because Molsen & Co.’s liability for such additional amounts was contingent until the time that the sellers actually called the price. The petitioners, on the other hand, contend that the Commissioner acted arbitrarily and abused his discretion in disallowing the year-end accrual for the unfixed, on-call purchases because such accrual conformed to industry-wide practice and to generally accepted accounting principles, was consistently applied year after year, and, most importantly, was necessary in order to clearly reflect the company’s income. The petitioners present a variety of arguments, but their basic position is that the Commissioner, having recognized the need of cotton merchants for, and the practice of, valuing ending inventory at market, was arbitrary in rejecting their companion practice of" }, { "docid": "16909981", "title": "", "text": "(1) That petitioner used its method of accounting consistently in each of the years of its existence (see Sam W. Emerson Co. v. Commissioner, 37 T.C. 1063, 1068 (1962)); (2) that its method is a generally accepted method of accounting (see Commissioner v. Idaho Power Co., 418 U.S. 1, 14-15 (1974), affg. a Memorandum Opinion of this Court, but see Thor Power Tool Co. v. Commissioner, supra); and (3) that its method is specifically required by the Wisconsin PSC and apparently approved of by the FERC and the NRC (see Commissioner v. Idaho Power Co., supra at 14—15; see also Fort Howard Paper Co. v. Commissioner, 49 T.C. 275, 284 (1967); Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-799 (1973)). Even though the Commissioner has broad powers in determining what accounting methods clearly reflect income (Commissioner v. Hansen, 360 U.S. 446, 467 (1959)), his discretion can be, and in this case has been, abused. It is to be noted that in his determination he referred to a “first-in, first-out” method for “valuation of coal on hand” even though his regulation (sec. 1.471-1, Income Tax Regs.) provides that a taxpayer’s inventory of raw materials includes only those intended for sale or which will physically become a part of merchandise intended for sale. Petitioner’s obligation in order to clearly reflect its income was to determine in a realistic manner the cost of the coal it actually used each year in the production of electricity. This petitioner has done. The second issue in this case involves deductions claimed by petitioner as ordinary and necessary business expenses under section 162(a) for certain training costs and other expenses paid in connection with its interest in Plant 2, the nuclear power plant. Petitioner takes the position that the amounts paid in connection with its interest in the nuclear power plant for which it claims a deduction meet all the requirements of section 162(a) for deductible ordinary and necessary business expenses and are not capital expenditures within the meaning of section 263. Petitioner argues that these expenses were incurred in carrying on its trade or business" }, { "docid": "16909980", "title": "", "text": "allowable under the stringent requirements of the showing necessary to overcome the “first-in, first-out” presumption under the predecessor of section 1.471-2(d), Income Tax Regs.). Petitioner’s method of accounting, although not tagging each lump of coal as it is received and registering its use, does within the parameters of de minimus differences trace the actual consumption of coal. The last coal received is the coal first used with any excess being added to, or deficiency taken from, the most recent reserve pile edges. The excess and deficiency alterations to the reserve piles were not common and, in any event, were accounted for in petitioner’s method of determining cost of its coal used. The only variations from actual consumption would be as a result of petitioner’s monthly averaging of costs in combination with the movements to and from the reserve piles. Even these minor variations would in most part be worked out over a year’s time so that only de minimus differences from actual consumption could occur. Although not controlling, strengthening petitioner’s position are the following facts: (1) That petitioner used its method of accounting consistently in each of the years of its existence (see Sam W. Emerson Co. v. Commissioner, 37 T.C. 1063, 1068 (1962)); (2) that its method is a generally accepted method of accounting (see Commissioner v. Idaho Power Co., 418 U.S. 1, 14-15 (1974), affg. a Memorandum Opinion of this Court, but see Thor Power Tool Co. v. Commissioner, supra); and (3) that its method is specifically required by the Wisconsin PSC and apparently approved of by the FERC and the NRC (see Commissioner v. Idaho Power Co., supra at 14—15; see also Fort Howard Paper Co. v. Commissioner, 49 T.C. 275, 284 (1967); Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-799 (1973)). Even though the Commissioner has broad powers in determining what accounting methods clearly reflect income (Commissioner v. Hansen, 360 U.S. 446, 467 (1959)), his discretion can be, and in this case has been, abused. It is to be noted that in his determination he referred to a “first-in, first-out” method for “valuation of coal" }, { "docid": "20077212", "title": "", "text": "industry-wide practice, the company has historically and consistently accounted for its cost of goods sold by valuing ending cotton inventory at market and accruing to the cost of purchases the additional amount that would be payable by it under its unfixed, delivered, on-call purchase contracts were the cost of such purchases fixed on December 31. Since 1926, the Commissioner has expressly permitted cotton merchants and other dealers in commodities to value their ending inventories at market value even though market value may exceed the inventories’ actual cost. See Rev. Rul. 74-227,1974-1 C.B. 119, which updated, restated, and superseded S.M. 5693, V-2 C.B. 20 (1926). However, the Commissioner has recently ruled that cotton merchants may not include the additional amounts (if any) payable under on-call purchase contracts in the cost of cotton purchases unless the cotton producers have called the prices during the taxable year. Rev. Rui. 81-298, 1981-2 C.B. H4 Thg primary issue for decision is therefore whether Molsen & Co.’s method of accounting for its unfixed, delivered, on-call purchases clearly reflects its income so that the Commissioner was arbitrary and abused his discretion in determining that the company’s method should be changed. Section 446 vests the Commissioner with wide discretion in determining whether a particular method of accounting clearly reflects income, and a heavy burden is imposed upon the taxpayer to overcome a determination by the Commissioner in this area. Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532 (1979); United States v. Catto, 384 U.S. 102, 114 (1966); Commissioner v. Hansen, 360 U.S. 446, 467 (1959); Lucas v. Structural Steel Co., 281 U.S. 264, 271 (1930). However, it is a well-established principle that the Commissioner cannot require a taxpayer to change from an accounting method which clearly reflects income because the Commissioner considers an alternate method to more clearly reflect income. See, e.g., St. James Sugar Co-op, Inc. v. United States, 643 F.2d 1219 (5th Cir. 1981); Bay State Gas Co. v. Commissioner, 75 T.C. 410, 417 (1980), affd. 689 F.2d 1 (1st Cir. 1982); Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-800 (1973); Garth v." }, { "docid": "20077230", "title": "", "text": "by taxpayers, but the facts of that case were significantly different. There, the taxpayer sought to writedown its \"excess” inventory to what it estimated to be its net realizable value, even though the taxpayer continued to hold such inventory for sale at original prices. The Court determined that because the taxpayer provided no objective evidence of the reduced value of the excess inventory, the writedown was plainly inconsistent with the regulations, and the Commissioner properly disallowed it. 439 U.S. at 538. The Court considered that the taxpayer was, in effect, claiming a loss which it had not sustained, because the inventory was still available and had not been discarded. 439 U.S. at 545. Here, the Commissioner is attempting to tax Molsen & Co. on income that it has not received. The Commissioner would recognize the increase in the value of the inventory, but he refuses to recognize the increase in the company’s liabilities. In Thor, the Supreme Court found that there was a distortion in income when the taxpayer attempted to claim a loss not sustained; here, there would be a distortion of income if we adopted the Commissioner’s position and taxed Molsen & Co. on income computed without taking into consideration the costs attributable to it. In the final analysis, whether Molsen & Co.’s method of accounting for its unfixed, delivered, on-call purchases clearly reflects income is a question of fact. St. James Sugar Co-op, Inc. v. United States, 643 F.2d at 1223; Madison Gas & Electric Co. v. Commissioner, 72 T.C. 521, 555 (1979), affd. 633 F.2d 512 (7th Cir. 1980). Based on the facts here present, we conclude that Molsen & Co.’s method clearly reflects its income and that the Commissioner was arbitrary and abused his discretion in seeking to change it. The petitioners’ position is strengthened by the following facts: (1) That Molsen & Co. used its method of accounting consistently in each of the years of its existence (see Madison Gas & Electric Co. v. Commissioner, 72 T.C. at 556; Auburn Packing Co. v. Commissioner, 60 T.C. at 799; Sam W. Emerson Co. v. Commissioner," }, { "docid": "20077232", "title": "", "text": "37 T.C. 1063, 1068 (1962)); (2) that its method conforms to an industry-wide practice of very long standing (see sec. 1.446-1(a)(2), Income Tax Regs.; Garth v. Commissioner, 56 T.C. at 619); and (3) that its method conforms to the best accounting practice in the industry (see Commissioner v. Idaho Power Co., 418 U.S. 1, 14-15 (1974), but see Thor Power Tool Co. v. Commissioner, supra). In addition, although Molsen & Co.’s accrual to purchases may not have met the all events test, on December 31, 1977, it was more than likely that the liabilities would become definitely fixed within a matter of months and that the liabilities would approximate the amount of the accrual. The market and the futures prices of cotton had risen by the end of the year, and while the market and the response thereto of the cotton sellers could not be predicted with complete accuracy, it was reasonable to assume that, in the event of a subsequent decline in the market, most of the sellers would call their contracts before their prices declined to the level of their provisional payments. Moreover, the Commissioner’s proposed treatment of unfixed, delivered, on-call purchases is inconsistent with his treatment of hedging transactions entered into by cotton merchants. A cotton merchant may hedge fixed price purchases and fixed price sales by entering into offsetting positions in the futures market. Hedging reduces the merchant’s risk in the event of fluctuations in the market price of cotton. Hedging almost always involves taking a straddle position. As a result, the cotton merchant will normally make money on the actual cotton and lose money on the futures, or profit on the futures and lose (or receive less profit) on the actual cotton. See generally Willingham, \"More than You Ever Wanted to Know About Hedging,” 3 Agricultural L. J. 100-114 (1981-82). Gains and losses on hedging transactions receive ordinary income (or loss) treatment. See Stewart Silk Corp. v. Commissioner, 9 T.C. 174 (1947), and cases cited therein. Since 1921, the Commissioner has expressly permitted cotton merchants, in determining gross income, to take into account gains and" }, { "docid": "20744500", "title": "", "text": "Power Tool Co. v. Commissioner, 439 U.S. 522, 532 (1979). The taxpayer bears “a heavy burden of proof” to show that the Commissioner abused his discretion, and the Commissioner’s determination “is not to be set aside unless shown to be plainly arbitrary.” Thor Power Tool Co. v. Commissioner, 439 U.S. at 532-533. See also Prabel v. Commissioner, 91 T.C. at 1112 (this Court cannot interfere with the Commissioner’s audit adjustments under section 446(b) unless such adjustments are “clearly unlawful” or “plainly arbitrary”); Coors v. Commissioner, 60 T.C. at 394-395. Where, however, a taxpayer does demonstrate that his method of accounting clearly reflects income, the Commissioner cannot require him to change to a different method of accounting, even if such different method, in the Commissioner’s view, more clearly reflects income. Molsen v. Commissioner, 85 T.C. 485, 498 (1985); Peninsula Steel Products & Equip, v. Commissioner, 78 T.C. at 1045; Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-799 (1973); Garth v. Commissioner, 56 T.C. 610, 618 (1971); Fort Howard Paper Co. v. Commissioner, 49 T.C. 275 (1967). Furthermore, the Commissioner may not require a taxpayer to change from one incorrect method of accounting to another incorrect method. Prabel v. Commissioner, 91 T.C. at 1112. The province of this Court is not to weigh and determine the relative merits of systems of accounting. Brown v. Helvering, 291 U.S. at 204-205; Auburn Packing Co. v. Commissioner, 60 T.C. at 799. Our inquiry is limited to the question of whether the accounting method in issue satisfies the dear-reflection standard of the statute, and we do not decide whether a method is superior to other possible methods. Auburn Packing Co. v. Commissioner, 60 T.C. at 799-800; Sam W. Emerson Co. v. Commissioner, 37 T.C. 1063, 1068 (1962). The question of whether a particular accounting method clearly reflects the income of a taxpayer is one of fact, and is to be determined on a case-by-case basis. Peninsula Steel Products & Equip, v. Commissioner, 78 T.C. at 1045; Coors v. Commissioner, 60 T.C. at 395. In the instant case, respondent determined that petitioner’s method of accounting for" }, { "docid": "20077231", "title": "", "text": "sustained; here, there would be a distortion of income if we adopted the Commissioner’s position and taxed Molsen & Co. on income computed without taking into consideration the costs attributable to it. In the final analysis, whether Molsen & Co.’s method of accounting for its unfixed, delivered, on-call purchases clearly reflects income is a question of fact. St. James Sugar Co-op, Inc. v. United States, 643 F.2d at 1223; Madison Gas & Electric Co. v. Commissioner, 72 T.C. 521, 555 (1979), affd. 633 F.2d 512 (7th Cir. 1980). Based on the facts here present, we conclude that Molsen & Co.’s method clearly reflects its income and that the Commissioner was arbitrary and abused his discretion in seeking to change it. The petitioners’ position is strengthened by the following facts: (1) That Molsen & Co. used its method of accounting consistently in each of the years of its existence (see Madison Gas & Electric Co. v. Commissioner, 72 T.C. at 556; Auburn Packing Co. v. Commissioner, 60 T.C. at 799; Sam W. Emerson Co. v. Commissioner, 37 T.C. 1063, 1068 (1962)); (2) that its method conforms to an industry-wide practice of very long standing (see sec. 1.446-1(a)(2), Income Tax Regs.; Garth v. Commissioner, 56 T.C. at 619); and (3) that its method conforms to the best accounting practice in the industry (see Commissioner v. Idaho Power Co., 418 U.S. 1, 14-15 (1974), but see Thor Power Tool Co. v. Commissioner, supra). In addition, although Molsen & Co.’s accrual to purchases may not have met the all events test, on December 31, 1977, it was more than likely that the liabilities would become definitely fixed within a matter of months and that the liabilities would approximate the amount of the accrual. The market and the futures prices of cotton had risen by the end of the year, and while the market and the response thereto of the cotton sellers could not be predicted with complete accuracy, it was reasonable to assume that, in the event of a subsequent decline in the market, most of the sellers would call their contracts before their" }, { "docid": "20077213", "title": "", "text": "that the Commissioner was arbitrary and abused his discretion in determining that the company’s method should be changed. Section 446 vests the Commissioner with wide discretion in determining whether a particular method of accounting clearly reflects income, and a heavy burden is imposed upon the taxpayer to overcome a determination by the Commissioner in this area. Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532 (1979); United States v. Catto, 384 U.S. 102, 114 (1966); Commissioner v. Hansen, 360 U.S. 446, 467 (1959); Lucas v. Structural Steel Co., 281 U.S. 264, 271 (1930). However, it is a well-established principle that the Commissioner cannot require a taxpayer to change from an accounting method which clearly reflects income because the Commissioner considers an alternate method to more clearly reflect income. See, e.g., St. James Sugar Co-op, Inc. v. United States, 643 F.2d 1219 (5th Cir. 1981); Bay State Gas Co. v. Commissioner, 75 T.C. 410, 417 (1980), affd. 689 F.2d 1 (1st Cir. 1982); Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-800 (1973); Garth v. Commissioner, 56 T.C. 610, 618 (1971). Gross income, in a merchandising business, means total sales less cost of goods sold (the gross profit from sales), plus any income from investments and from incidental or outside operations and sources. Sec. 1.61-3, Income Tax Regs.; Form 1120. The cost of goods sold during a year is determined by subtracting inventory on hand at the end of the year from the total inventory on hand at the beginning of the year and the cost of purchases. Schedule A, Form 1120. The use of inventories is a key feature of the accrual method of accounting. Inventories are intended to insure a clear reflection of the year’s income by matching sales during the taxable year with the purchase costs attributable to those sales; costs attributable to inventory remaining on hand at the end of the year are not expensed in the year incurred, but are, in effect, deferred until the year in which such inventory is sold. See Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 657-658 (9th Cir. 1966), affg." }, { "docid": "10394365", "title": "", "text": "income, the computation of taxable income shall be made under such method as, in the opinion of the [Commissioner], does clearly reflect income.” Sec. 1.446-l(a)(2), Income Tax Regs.,’provides, inter alia: A method of accounting which reflects the consistent application of generally accepted accounting principles in a particular trade or business in accordance with accepted conditions or practices in that trade or business will ordinarily be regarded as clearly reflecting income, provided all items of gross income and expense are treated consistently from year to year. In interpreting the above-quoted statutory and regulatory language, the Supreme Court, in Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979), stated (p. 540): Most importantly, the Code and Regulations give the Commissioner broad discretion to set aside the taxpayer’s method if, “in [his] opinion,” it does not reflect income clearly. * * * [The Commissioner] may prescribe a different practice without having to rebut any presumption running against the Treasury. Therefore, in those instances where the Commissioner has questioned a practice employed by a taxpayer in keeping his books, it is incumbent upon the taxpayer to show that his accounting procedures are an acceptable method of reflecting his income; “the taxpayer has a heavy burden to show that respondent has clearly abused his discretion so that his determination can be held to be arbitrary.” Seaboard Coast Line Railroad Co. v. Commissioner, 72 T.C. 855, 875 (1979), on appeal (5th Cir., Mar. 13, 1980). See also Madison Gas & Electric Co. v. Commissioner, 72 T.C. 521, 554-555 (1979), affd. on another point 633 F.2d 512 (7th Cir. 1980); Photo-Sonics, Inc. v. Commissioner, 42 T.C. 926, 933 (1964), affd. 357 F.2d 656 (9th Cir. 1966). In the present case, petitioner has shown neither the accept ability of its accounting procedures nor the arbitrariness of respondent’s determination. As discussed above, we view the evidence herein as bearing out respondent’s assertion that petitioner’s method was an improper application of recognized RRB accounting principles. We also believe there is ample justification in the record for respondent’s conclusion that petitioner’s method did not clearly reflect income in light of" }, { "docid": "20744499", "title": "", "text": "for such interest did not clearly reflect petitioner’s income, and respondent accordingly changed such method pursuant to his power under section 446(b). It is well established that respondent possesses wide discretion to determine whether a particular method of accounting clearly reflects income and to require a change to a method which, in his opinion, does clearly reflect income. Prabel v. Commissioner, 91 T.C. 1101, 1111-1112 (1988), affd. 882 F.2d 820 (3d Cir. 1989); Coors v. Commissioner, 60 T.C. 368, 394 (1973), affd. 519 F.2d 1280 (10th Cir. 1975). See also Commissioner v. Hansen, 360 U.S. 446, 467 (1959); Brown v. Helvering, 291 U.S. 193, 203-204 (1934). Indeed, we previously have stated that respondent’s determination with respect to the issue of whether income is reflected clearly is entitled to more than the usual presumption of correctness. Reco Industries, Inc. v. Commissioner, 83 T.C. 912, 920 (1984); Peninsula Steel Products & Equip, v. Commissioner, 78 T.C. 1029, 1044 (1982). Respondent’s interpretation of the “clear-reflection standard [of section 446(b)] should not be interfered with unless clearly unlawful.” Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532 (1979). The taxpayer bears “a heavy burden of proof” to show that the Commissioner abused his discretion, and the Commissioner’s determination “is not to be set aside unless shown to be plainly arbitrary.” Thor Power Tool Co. v. Commissioner, 439 U.S. at 532-533. See also Prabel v. Commissioner, 91 T.C. at 1112 (this Court cannot interfere with the Commissioner’s audit adjustments under section 446(b) unless such adjustments are “clearly unlawful” or “plainly arbitrary”); Coors v. Commissioner, 60 T.C. at 394-395. Where, however, a taxpayer does demonstrate that his method of accounting clearly reflects income, the Commissioner cannot require him to change to a different method of accounting, even if such different method, in the Commissioner’s view, more clearly reflects income. Molsen v. Commissioner, 85 T.C. 485, 498 (1985); Peninsula Steel Products & Equip, v. Commissioner, 78 T.C. at 1045; Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-799 (1973); Garth v. Commissioner, 56 T.C. 610, 618 (1971); Fort Howard Paper Co. v. Commissioner, 49 T.C. 275" }, { "docid": "20077210", "title": "", "text": "31, 1977, as determined in accordance with the contract. The average amount due was 880 points, or 8.8 cents, per pound. By multiplying 8.8 cents by 10,342,500 pounds (the approximate weight of 20,685 bales of Memphis territory cotton ), the company determined that it would have owed $910,140 more if the sellers had fixed their prices on December 31, 1977. All of the sellers under the Texas and Memphis territory contracts exercised their call rights and fixed their prices by June 23,1978; Molsen & Co. paid approximately $1,839,633.70 in 1978 in final settlement of the Texas and Memphis territory contracts. The petitioners reported their distributive shares of Molsen & Co.’s reported taxable income on their Federal income tax returns for 1977. In his notices of deficiency, the Commissioner determined that Molsen & Co. could not bring its unfixed, delivered, on-call purchases to market on December 31, 1977, by accruing $1,099,465 to purchases in computing its cost of goods sold, because, on December 31, 1977, such purchase contracts were open-ended contracts under which Molsen & Co. had only a contingent liability for additional costs. The Commissioner therefore limited purchases to the $249,995,543 actually paid by Molsen & Co. in 1977 and increased the company’s taxable income by $1,099,465. There is no evidence that the Commissioner changed the company’s method of valuing opening and ending inventories at market. OPINION Section 446 provides that taxable income shall be computed under the method of accounting regularly used by the taxpayer in computing his income and keeping his books, but if no method has been regularly used by the taxpayer or if \"the method used does not clearly reflect income,” the computation shall be made under such method as, in the opinion of the Commissioner, does clearly reflect income. The term \"method of accounting” includes not only the taxpayer’s overall method but also the accounting treatment of any item. Sec. 1.446-l(a)(l), Income Tax Regs. Molsen & Co., a cotton merchant, accounts for its taxable income on an accrual basis and employs a taxable year ending December 31. In accordance with generally accepted accounting principles and" }, { "docid": "2530575", "title": "", "text": "reflects income because the Commissioner considers an alternate method to more clearly reflect income. See, e.g., St. James Sugar Co-op, Inc. v. United States, 643 F.2d 1219 (5th Cir. 1981); Bay State Gas Co. v. Commissioner, 75 T.C. 410, 417 (1980), affd. 689 F.2d 1 (1st Cir. 1982); Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-800 (1973); Garth v. Commissioner, 56 T.C. 610, 618 (1971). In addition, the Commissioner may not require a taxpayer to adopt an accounting method which does not clearly reflect income. See Brountas v. Commissioner, 74 T.C. 1062, 1069 (1980), supplemental opinion to 73 T.C. 491 (1979), vacated and remanded on other grounds 692 F.2d 152 (1st Cir. 1982), affd. in part and revd. in part on other grounds sub nom. CRC Corp. v. Commissioner, 693 F.2d 281 (3d Cir. 1982). Gross income, in a manufacturing business, means total sales less cost of goods sold (the gross profit from sales), plus any income from investments and from incidental or outside operations and sources. Sec. 1.61-3(a), Income Tax Regs.; see Form 1120. “[T]he Commissioner has always recognized * * * that the cost of goods sold must be deducted from gross receipts in order to arrive at gross income.” Sullenger v. Commissioner, 11 T.C. 1076, 1077 (1948). The cost of goods sold during a year is determined by subtracting inventory on hand at the end of the year from the sum of the inventory on hand at the beginning of the year and the cost of purchases. See Schedule A, Form 1120. The use of inventories is a key feature of the accrual method of accounting. Inventories are intended to insure a clear reflection of the year’s income by matching sales during the taxable year with the costs attributable to those sales; costs attributable to inventory remaining on hand at the end of the year are not expensed in the year incurred but are, in effect, deferred until the year in which such inventory is sold. See Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 657-658 (9th Cir. 1966), affg. 42 T.C. 926 (1964); All-Steel Equipment Inc." }, { "docid": "2530574", "title": "", "text": "and a heavy burden is imposed upon the taxpayer to overcome a determination by the Commis sioner in this area. Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532 (1979); United States v. Catto, 384 U.S. 102, 114 (1966); Commissioner v. Hansen, 360 U.S. 446, 467 (1959); Lucas v. Structural Steel Co., 281 U.S. 264, 271 (1930). In the case of taxpayers who are operating on a completed contract method of accounting, and who pass those contracts to their stockholders in liquidation, the Commissioner may exercise the discretion granted by section 446 to place those taxpayers on a percentage of completion method of accounting to insure that profits earned by the corporation prior to liquidation are taxed to it. Standard Paving Co. v. Commissioner, 190 F.2d 330 (10th Cir. 1951), affg. 13 T.C. 425 (1949); Jud Plumbing & Heating, Inc. v. Commissioner, 153 F.2d 681 (5th Cir. 1946), affg. 5 T.C.. 127 (1945). However, it is a well-established principle that the Commissioner cannot require a taxpayer to change from an accounting method which clearly reflects income because the Commissioner considers an alternate method to more clearly reflect income. See, e.g., St. James Sugar Co-op, Inc. v. United States, 643 F.2d 1219 (5th Cir. 1981); Bay State Gas Co. v. Commissioner, 75 T.C. 410, 417 (1980), affd. 689 F.2d 1 (1st Cir. 1982); Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-800 (1973); Garth v. Commissioner, 56 T.C. 610, 618 (1971). In addition, the Commissioner may not require a taxpayer to adopt an accounting method which does not clearly reflect income. See Brountas v. Commissioner, 74 T.C. 1062, 1069 (1980), supplemental opinion to 73 T.C. 491 (1979), vacated and remanded on other grounds 692 F.2d 152 (1st Cir. 1982), affd. in part and revd. in part on other grounds sub nom. CRC Corp. v. Commissioner, 693 F.2d 281 (3d Cir. 1982). Gross income, in a manufacturing business, means total sales less cost of goods sold (the gross profit from sales), plus any income from investments and from incidental or outside operations and sources. Sec. 1.61-3(a), Income Tax Regs.; see Form" }, { "docid": "20077211", "title": "", "text": "had only a contingent liability for additional costs. The Commissioner therefore limited purchases to the $249,995,543 actually paid by Molsen & Co. in 1977 and increased the company’s taxable income by $1,099,465. There is no evidence that the Commissioner changed the company’s method of valuing opening and ending inventories at market. OPINION Section 446 provides that taxable income shall be computed under the method of accounting regularly used by the taxpayer in computing his income and keeping his books, but if no method has been regularly used by the taxpayer or if \"the method used does not clearly reflect income,” the computation shall be made under such method as, in the opinion of the Commissioner, does clearly reflect income. The term \"method of accounting” includes not only the taxpayer’s overall method but also the accounting treatment of any item. Sec. 1.446-l(a)(l), Income Tax Regs. Molsen & Co., a cotton merchant, accounts for its taxable income on an accrual basis and employs a taxable year ending December 31. In accordance with generally accepted accounting principles and industry-wide practice, the company has historically and consistently accounted for its cost of goods sold by valuing ending cotton inventory at market and accruing to the cost of purchases the additional amount that would be payable by it under its unfixed, delivered, on-call purchase contracts were the cost of such purchases fixed on December 31. Since 1926, the Commissioner has expressly permitted cotton merchants and other dealers in commodities to value their ending inventories at market value even though market value may exceed the inventories’ actual cost. See Rev. Rul. 74-227,1974-1 C.B. 119, which updated, restated, and superseded S.M. 5693, V-2 C.B. 20 (1926). However, the Commissioner has recently ruled that cotton merchants may not include the additional amounts (if any) payable under on-call purchase contracts in the cost of cotton purchases unless the cotton producers have called the prices during the taxable year. Rev. Rui. 81-298, 1981-2 C.B. H4 Thg primary issue for decision is therefore whether Molsen & Co.’s method of accounting for its unfixed, delivered, on-call purchases clearly reflects its income so" } ]

[ { "docid": "3252342", "title": "", "text": "EPA’s motion for summary judgment, Judge Parsons concluded that there was no genuine issue that Overton was not “otherwise qualified” for his position. Mem.Op. and Order at 16 (July 9, 1991) (Mem.Op.). The EPA had made every “reasonable accommodation” for Overton’s handicap; Overton had presented no evidence that he “could have performed the essential functions of any position”; and Overton’s suggested accommodations were unreasonable in that they required the EPA to manufacture a new position for him. Id. at 14-15. II. Overton brought suit under sections 501 and 504 of the Rehabilitation Act of 1973. 29 U.S.C. §§ 791 & 794. The district court treated Overton's claim as one brought solely under section 504. Mem. Op. at 1. To compound the confusion, we have expressed some doubt that section 504 applies to employment discrimination suits against federal agencies. McGuinness v. United States Postal Service, 744 F.2d 1318, 1321-22 (7th Cir.1984); see also Johnson v. United States Postal Service, 861 F.2d 1475, 1477 (10th Cir.1988), cert. denied, 493 U.S. 811, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989); Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985) (section 501 is exclusive remedy for federal employees). Other circuits, however, believe that 504 does apply. See, e.g., Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir.1983); Smith v. United States Postal Service, 742 F.2d 257, 260 (6th Cir.1984); Prewitt v. United States Postal Service, 662 F.2d 292, 302-04 (5th Cir.1981) (discussing legislative history); cf. Ristoff v. United States, 839 F.2d 1242, 1243-44 (7th Cir.1988) (assuming without discussion that plaintiff may sue federal employer under section 504). The EPA is also in dissent from our musings in McGuinness, as it has promulgated regulations under section 504 that apply to its own employees. See 40 C.F.R. pt. 12 (1991). Neither of the parties has addressed the applicability of section 504 or the differences (if any) between a claim brought under 501 and a claim brought under 504. We need not address these questions either, since the threshold issue on which the district court granted summary judgment is identical (or at least substantially similar)" } ]

[ { "docid": "17434462", "title": "", "text": "in excluding Lindsay’s testimony. We turn next to Mannie’s hostile work environment and retaliation claims, which were dismissed on summary judgment. We review de novo the district court’s grant of summary judgment to the Postal Service. Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir.2004). We view the evidence in the light most favorable to Mannie, the non-moving party, to determine if the record demonstrates that there is no genuine issue of material fact and that the Postal Service is entitled to judgment as a matter of law. Id. Mannie has no remedy for employment discrimination under the Americans With Disabilities Act (“ADA”) because she is a federal employee. See Rivera v. Heyman, 157 F.3d 101,103 (6th Cir.1998). Thus, we evaluate her claims under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. Section 501 of the Act, which is the sole remedy for federal employees claiming disability discrimination, see McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984), requires federal agencies to accommodate disabled employees and prohibits discrimination based on disability. 29 U.S.C. § 791(b); McWright v. Alexander, 982 F.2d 222, 225-26 (7th Cir. 992). Employees who bring successful claims under § 501 are entitled to the remedies prescribed by Title VII. 29 U.S.C. § 794(a)(1); McWright, 982 F.2d at 226 n. 1. Mannie first argues that the district court improperly granted summary judgment on her hostile work environment claim because she had produced sufficient evidence to show “an ongoing and pervasive hostile environment.” Although we have not yet decided whether a claim for hostile work environment is cognizable under the ADA or the Rehabilitation Act, we have assumed the existence of such claims where resolution of the issue has not been necessary. See Conley v. Village of Bedford Park, 215 F.3d 703, 712-13 (7th Cir.2000). We have further assumed that the standards for proving such a claim would mirror those we have established for claims of hostile work environment under Title VII. Silk, 194 F.3d at 804. See also Jeseritz v. Potter, 282 F.3d 542, 547 (8th Cir.2002). A hostile work" }, { "docid": "10821263", "title": "", "text": "306 (5th Cir.1981) (quoting Ryan v. Federal Deposit Ins. Corp., 565 F.2d 762, 763 (D.C.Cir.1977)). Section 504 of the Act, 29 U.S.C. § 794, prohibits discrimination against individuals with handicaps by reason of their handicap “under any program or activity conducted by any Executive agency or by the United States Postal Service.” Congress has expressly established private rights of action under both sections. 29 U.S.C. § 794a(a). McWright’s complaint raises two claims: one is denominated “Failure to Accommodate” and the other “Disparate Treatment.” Although the complaint does not specify the section of the Act under which each claim is brought, on appeal McWright refers to her accommodation claim as a § 501 claim and her disparate treatment claim as a § 504 claim. The distinction may be relevant, for we have expressed doubts about whether § 504 applies to employment discrimination suits against federal agencies, McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321-22 (7th Cir.1984), and the issue has divided the circuits. Compare Johnson v. United States Postal Serv., 861 F.2d 1475, 1477 (10th Cir.1988), cert. denied, 493 U.S. 811, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989); Boyd v. United States Postal Serv., 752 F.2d 410, 413 (9th Cir.1985) (§ 501 is exclusive remedy for federal employees) with Smith v. United States Postal Serv., 742 F.2d 257, 260 (6th Cir.1984); Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir.1983); Prewitt, 662 F.2d at 302-04 (federal employees can sue under § 504). See also Ristoff v. United States, 839 F.2d 1242, 1243-44 (7th Cir.1988) (assuming without discussion that plaintiff may sue federal employer under § 504). We need not resolve the question here. The complaint does not distinguish between § 501 and § 504, and we may treat both of McWright’s claims as having been brought under § 501. In addition to requiring accommodation of individuals with handicaps, § 501 — by regulation and interpretation — prohibits discrimination on the basis of handicap, just like § 504. 29 C.F.R. § 1613.703 (“An agency shall not discriminate against a qualified physically or mentally handicapped person.”); Gardner v. Morris, 752 F.2d" }, { "docid": "10821262", "title": "", "text": "motion to dismiss, concluding that the “causal nexus between the alleged discrimination suffered by McWright and her inability to bear a child is too attenuated to meet the requirements of the Rehabilitation Act.” McWright v. Alexander, 771 F.Supp. 256, 259 (N.D.Ill.1991). McWright appeals. II. We review a decision granting a motion to dismiss de novo, assuming the truth of all well-pleaded factual allegations and drawing inferences in favor of the plaintiff. Wroblewski v. City of Washburn, 965 F.2d 452, 453 (7th Cir.1992). Dismissal under Federal Rule 12(b)(6) is appropriate only if relief could not be granted “under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, imposes an affirmative duty upon federal agencies “to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion.” Prewitt v. United States Postal Serv., 662 F.2d 292, 306 (5th Cir.1981) (quoting Ryan v. Federal Deposit Ins. Corp., 565 F.2d 762, 763 (D.C.Cir.1977)). Section 504 of the Act, 29 U.S.C. § 794, prohibits discrimination against individuals with handicaps by reason of their handicap “under any program or activity conducted by any Executive agency or by the United States Postal Service.” Congress has expressly established private rights of action under both sections. 29 U.S.C. § 794a(a). McWright’s complaint raises two claims: one is denominated “Failure to Accommodate” and the other “Disparate Treatment.” Although the complaint does not specify the section of the Act under which each claim is brought, on appeal McWright refers to her accommodation claim as a § 501 claim and her disparate treatment claim as a § 504 claim. The distinction may be relevant, for we have expressed doubts about whether § 504 applies to employment discrimination suits against federal agencies, McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321-22 (7th Cir.1984), and the issue has divided the circuits. Compare Johnson v. United States Postal Serv., 861 F.2d 1475, 1477" }, { "docid": "267211", "title": "", "text": "Supp.1984). The case was subsequently recast as an action under sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 & 794 (1982), and transferred to federal court in Michigan. The Postal Service moved for dismissal on grounds that plaintiff had failed to exhaust administrative remedies as required by sections 501 and 505(a)(1) of the Rehabilitation Act. In response, plaintiff maintained that exhaustion is not required of suits brought under section 504 and 505(a)(2) of the Act. After a hearing, the District Court ruled that the exhaustion requirement applies to both section 501 and section 504, and entered an order of dismissal without prejudice. Plaintiff appeals from this determination. II. A. Statutory Framework The Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796Í (1982), is a program designed to assist and protect the rights of the handicapped. Through it, Congress wanted to “develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living” for disabled persons. See id. § 701 (statement of purpose). Title V of the Act prohibits federal agencies, federal contractors, and recipients of federal funds from discriminating against the handicapped. Specifically, section 501(b), 29 U.S.C. § 791(b), requires all executive branch agencies and departments, including the Postal Service, to submit affirmative action plans for the hiring and advancement of handicapped persons. Section 503, 29 U.S.C. § 793, stipulates that all federal contracts contain a provision requiring the contractor to “take affirmative action to employ and advance in employment qualified handicapped individuals.” Finally, section 504 of the Act, found at 29 U.S.C. § 794, declares Congress’ intention that [n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The 1973 Act did not create an express private right of action on the part of handicapped employees against" }, { "docid": "23644501", "title": "", "text": "defendant briefed this issue on appeal. Because we hold that there is no genuine issue of material fact to preclude granting the Postmaster General’s motion for summary judgment, as we will discuss infra, we need not reach the § 504 issue to decide the case before us. We do note, however, that we agree with Seventh Circuit precedent that it is doubtful that \"§ 504 applies to employment discrimination suits against federal agencies.” McWright v. Alexander, 982 F.2d 222, 225 (7th Cir.1992); Overton v. Riley [Reilly], 977 F.2d 1190, 1193 (7th Cir.1992); McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984) (”[I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies ... in Section 501, would have done so again a few sections later in Section 504”). Johnson v. Runyon, 47 F.3d 911, 917 n. 5 (7th Cir.1995). . United States v. Porter, 581 F.2d 698 (8th Cir.1978) (regarding when the regulations of the Small Business Association would release a defendant from liability for guaranty loans); Jones v. Nelson, 484 F.2d 1165 (10th Cir.1973) (genuine issues of material fact existed in a personal injury diversity action, concerning the negligence of the driver of a car who passed a truck on a highway, and collided with the truck after a tire blow-out); Ozark Milling Co. v. Allied Mills, Inc., 480 F.2d 1014 (8th Cir.1973) (whether Ozark entered into an oral contract with Allied to become a hog feed distributor); and Commodity Futures Trading Commission v. American Metals Exchange Corp., 775 F.Supp. 767 (D.N.J.1991) (what constitutes fraud under the Commodity Exchange Act, and which states have jurisdiction to prosecute for violations of the same). . We agree with the concurring judge that Tyler would not prevail on the merits of this issue. Equitable tolling should be exercised \"only sparingly,” and not in cases \"where the claimant failed to exercise due diligence in preserving his legal rights.\" Irwin v. Veteran's Admin., 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990). Although Tyler stated that he made a number of attempts to contact" }, { "docid": "15013616", "title": "", "text": "501 provides the exclusive remedy for federal employees claiming discrimination on the basis of handicap. See Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985); McGuinness v. United States Postal Service, 744 F.2d 1318, 1321 (7th Cir.1984); DiPompo v. West Point Military Academy, 708 F.Supp. 540, 544-46 (S.D.N.Y.1989). Others have held that the two sections provide overlapping protections for handicapped federal employees. See Morgan v. United States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987); de la Torres v. Bolger, 781 F.2d 1134, 1135-36 (5th Cir.1986); Prewitt v. United States Postal Service, 662 F.2d 292, 304 (5th Cir. Unit A Nov. 1981). This issue has not been addressed by the Second Circuit, and for purposes of this decision it need not be resolved. Section 501 incorporates the procedural requirements of Title VII, including administrative exhaustion obligations, which do not apply in section 504 cases. However, in this case the government has abandoned any defense based on the plaintiffs purported failure to file his administrative complaint of handicap discrimination in a timely fashion. (Tr. 2). And, although only section 501 places affirmative action obligations on the federal government, Mr. Hogarth has consistently litigated this action as a straightforward anti-discrimination claim cognizable under either section 501 or section 504. Finally, the substantive obligations placed upon an employer not to discriminate on the basis of handicap are the same, whether the claim is raised under section 501 or section 504. Indeed, the regulations promulgated to implement these respective sections are substantially the same. Compare 29 C.F.R. §§ 1613.701-1613.707 (section 501) with 45 C.F.R. §§ 84.1-84.14 (section 504). Accordingly, the determination in this action will rely on law that has developed under both sections. The basic protections afforded to a handicapped person by section 504 are stated as follows: No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal" }, { "docid": "18734820", "title": "", "text": "and the EEOC regulations support that holding. Being left-handed is a physical characteristic, not a chronic illness, a disorder or deformity, a mental disability, or a condition affecting de la Torres’ health. It is not an “impairment” as contemplated by the Act. The district judge found that de la Torres’ supervisors may have had a bias against left-handed persons. There was no proof, however, that they viewed this trait as an “impairment,” as the Act defines that term. De la Torres failed to make out a prima facie case of handicap discrimination because he failed to demonstrate that he is a handicapped individual under the Act. The district judge correctly dismissed his suit. The judgment appealed from is AFFIRMED. . The Fifth Circuit has held that both sections 501 and 504 provide for a private cause of action against the federal government for handicap discrimination. See Prewitt v. United States Postal Service, 662 F.2d 292, 301-04 (5th Cir.1981); accord Smith v. United States Postal Service, 742 F.2d 257, 262 (6th Cir.1984) (plaintiff must exhaust administrative remedies first before bringing claim under § 501 or § 504). But see Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985) (holding section 501 is the exclusive remedy for handicap discrimination against the Postal Service); accord McGuinness v. United States Postal Service, 744 F.2d 1318, 1321-22 (7th Cir.1984) (noting this distinction is a \"matter of merely technical interest”). . The Tudyman court looked to the regulations contained in 45 C.F.R. § 84.30). These regulations complement § 504 of the Rehabilitation Act as it pertains to programs or activities that receive financial assistance. 45 C.F.R. § 84.1. The plaintiff’s prospective employer was an airline company receiving federal assistance rather than a government agency. Unlike the regulations that de la Torres erroneously urges us to follow, these regulations contain the same explanations of the terms in the Act’s definition of handicapped individual as the regulations contained in 29 U.S.C. § 1613.702. See 45 C.F.R. § 84.3(j)." }, { "docid": "15013615", "title": "", "text": "as arising under section 504 of the Act, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicap by programs or activities receiving federal financial assistance or conducted by a federal agency. When it was originally enacted, section 501 did not provide for a private right of action. By contrast, the courts readily held that there was an implied private right of action under section 504. See Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir.1977). In amending the Act in 1978, however, Congress explicitly stated that the rights and remedies available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., would apply to section 501. 29 U.S.C. § 794a(a)(l). At the same time, the procedures under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., were to apply to claims under section 504. 29 U.S.C. § 794a(a)(2). This statutory evolution created some confusion about the relationship between sections 501 and 504. Some courts have taken the position that section 501 provides the exclusive remedy for federal employees claiming discrimination on the basis of handicap. See Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985); McGuinness v. United States Postal Service, 744 F.2d 1318, 1321 (7th Cir.1984); DiPompo v. West Point Military Academy, 708 F.Supp. 540, 544-46 (S.D.N.Y.1989). Others have held that the two sections provide overlapping protections for handicapped federal employees. See Morgan v. United States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987); de la Torres v. Bolger, 781 F.2d 1134, 1135-36 (5th Cir.1986); Prewitt v. United States Postal Service, 662 F.2d 292, 304 (5th Cir. Unit A Nov. 1981). This issue has not been addressed by the Second Circuit, and for purposes of this decision it need not be resolved. Section 501 incorporates the procedural requirements of Title VII, including administrative exhaustion obligations, which do not apply in section 504 cases. However, in this case the government has abandoned any defense based on the plaintiffs purported failure" }, { "docid": "11510157", "title": "", "text": "she applied for reinstatement — a necessary element of any Rehabilitation Act claim. “Qualified” is a defined term. The Equal Employment Opportunity Commission defines a “qualified handicapped person” as one who “with or without reasonable accommodation, can perform the essential function of the position in question-” 29 C.F.R. § 1613-702(f). The record in this case does not reveal the essential functions of the position Kupferschmidt formerly held at the Postal Service. Cf. Davis v. Frank, 711 F.Supp. 447, 453 (N.D.Ill.1989) (job description is relevant to determination of essential functions of position). As set forth above, however, the Defendant maintains that Kupferschmidt is not qualified for any position with or without reasonable accommodation because she receives Social Security disability benefits and Federal Employee Retirement System disability retirement benefits. This court cannot grant summary judgment as a matter of law on this basis because six months before the Defendant submitted his brief the Seventh Circuit indicated that a finding of disability by the Social Security Administration should not be given preclusive effect in a Rehabilitation Act case. See Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir.1992) (“the determination of disability may be relevant evidence of the severity of [the Plaintiffs] handicap, but it can hardly be construed as a judgment that [the Plaintiff] could not do his job”). A more fruitful inquiry might have been whether Kupferschmidt’s job site misconduct, standing alone, disqualifies her from reinstatement. The ALJ found that the Postal Service denied reinstatement in May of 1990 based on Kupferschmidt’s “previous Postal Service record,” not because of mental illness. See Memorandum in Support of Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment at Exhibit (Statement of Findings, Analysis and Recommended Decision in the Complaint of Rita Kupferschmidt). But, because this issue was not raised by the Defendant as a ground for summary judgment, this issue, as well as whether the Plaintiff was “qualified” at the time she sought reinstatement, must be decided at trial. ORDER For these reasons the court ORDERS that the “Defendant’s Motion for Dismissal or in the Alternative for Summary Judgment” (filed April" }, { "docid": "11510155", "title": "", "text": "have not adequately addressed this issue in their briefs. B. REHABILITATION ACT CLAIM The Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-797b, as amended, (West Supp.1993), is legislation designed to assist and protect the rights of the handicapped. The Act provides for private rights of action to redress violations of the Act under two sections. Section 501, 29 U.S.C.A. § 791 (West Supp.1993), imposes an affirmative duty upon federal agencies “to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion.” Ryan v. Federal Deposit Insurance Corporation, 565 F.2d 762, 763 (D.C.Cir.1977). Section 504 of the Act, 29 U.S.C.A. § 794 (West Supp.1993), prohibits discrimination against individuals with handicaps by reason of their handicap “under any program or activity conducted by any Executive agency or by the United States Postal Service.” Unfortunately, in this ease, the parties have not identified which section of the Reha bilitation Act is at issue. This is essential because there are procedural and remedial differences between sections 501 and 504. See McWright v. Alexander, 982 F.2d 222, 226 n. 1 (7th Cir.1992). The Seventh Circuit is among those courts of appeals which have expressed doubt that section 504 applies to employment discrimination suits against federal agencies. See Id. at 225; Overton v. Reilly, 977 F.2d 1190, 1193 (7th Cir.1992); McGuinness v. United States Postal Service, 744 F.2d 1318, 1321-22 (7th Cir.1984). In moving for summary judgment the sole argument propounded by the Postmaster General is that: “plaintiff cannot prove that she is capable of performing the essential functions of her former position either with or without accommodation. Plaintiff is totally disabled from work as evinced by her receipt of Social Security and Federal Employee Retirement System disability retirements benefits.” Memorandum in Support of Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment at 10. In other words, the Defendant contends that, because other government agencies have concluded that Kupferschmidt was totally disabled at some time in the past, Kupferschmidt cannot prove that she is a “qualified handicapped person” at the time" }, { "docid": "2009995", "title": "", "text": "Claim Section 794 provides: No otherwise qualified handicapped individual with handicaps ... as defined in section 706(8) of this title, shall, solely by reason of his handicap ... be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. An “otherwise qualified handicapped individual” under § 794 may bring a private cause of action for handicap discrimination against an activity or program that receives federal funds. Boyd, 752 F.2d at 413 (citing Kling v. County of Los Angeles, 633 F.2d 876, 879 (9th Cir.1980)) (private plaintiff brought suit against federally assisted activity). Section 794 does not create a private cause of action for handicap discrimination against a federal employer by a federal employee. Boyd, 752 F.2d at 413-14. Section 791 is the exclusive remedy for handicap discrimination claims by federal employees. Id. We acknowledge a split among the circuits as to whether a federal employee may sue the federal employing agency under § 794. See Morgan v. United States Postal Serv., 798 F.2d 1162, 1165-66 (8th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987) (answering affirmatively); Smith v. United States Postal Serv., 742 F.2d 257, 259-60 (6th Cir.1984); Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir.1981); but see Johnson v. United States Postal Serv., 861 F.2d 1475, 1478 (10th Cir.1988) (§ 791 exclusive remedy); McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984). See also Milbert v. Koop, 830 F.2d 354, 357 (D.C.Cir.1987) (not deciding the question). We, however, have stated: [I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies (as distinct from employment by recipients, themselves nonfederal, of federal money) in section 501 [§ 791], would have done so again a few sections later in section 504 [§ 794]. Boyd, 752 F.2d at 413 (citing McGuinness, 744 F.2d at 1321). Although Boyd and most of the cases deciding this question find that § 791 is the exclusive remedy for an employee" }, { "docid": "11321180", "title": "", "text": "States Postal Serv., 798 F.2d 1162 (8th Cir.1986) (per curiam) (assuming without deciding that employees may sue the Postal Service under § 504), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987); Smith v. United States Postal Serv., 742 F.2d 257, 259-60 (6th Cir.1984) (citing Prewitt). To further bolster his position, DiPompo argues that Army regulations promulgated pursuant to § 504 of the Rehabilitation Act, 32 C.F.R. §§ 56.1 — .10 (1987) make clear that the Army also believes that § 504 provides federal employees with protection from employment discrimination based on handicap. Turning to DiPompo’s last argument first, the Army regulations that interpret § 504 do not give employees any rights at all. In fact, as the regulations make clear, they are intended to prohibit employment discrimination by federal contractors, and discrimination based on handicap in such Army activities as the Tools for Schools program. See, e.g., 32 C.F.R. §§ 56.7(b)(15) and 56.8(b) (1987). However, they do not reach the Army in its capacity as employer. Moreover, reviewing the provisions of the Rehabilitation Act, including amendments to the Act and the legislative history of those amendments makes clear that § 501 is a federal employee’s exclusive remedy for employment discrimination based on handicap, and that §§ 501 and 504 do not provide overlapping protection for federal employees who allege employment discrimination based on handicap. Boyd v. United States Postal Serv., 752 F.2d 410, 413 (9th Cir.1985) (citing McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321-22 (7th Cir.1984)). Section 501 of the Rehabilitation Act currently provides in relevant part that: Each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch shall, ... submit ... an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals in such department, agency, or instrumentality____ 29 U.S.C. § 791(b). Section 504 of the Rehabilitation Act currently provides that: No otherwise qualified individual with handicaps in the United States, ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits" }, { "docid": "23644500", "title": "", "text": "public, handling window transactions, including sales of postage and packaging, as well as assisting in the mailing of letters and packages for those appearing at the window. . 28 U.S.C. § 1746 provides, in relevant part: Whenever ... any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration ... in writing of the person making the same ... such matter may, with like force and effect, be supported ... by the unsworn declaration ... in writing of such person which is subscribed by him, as true under penally of perjury, and dated[.] . The court also found that the Postal Service did not breach the settlement agreement by deducting taxes from Tyler’s $5000 settlement payment, but Tyler does not appeal this issue. . Tyler’s cause of action included a claim that the Postal Service violated § 504 of the Rehabilitation Act. 29 U.S.C. § 794. Although the district court did not address the issue of whether § 504 authorizes individual claims by federal employees against federal agencies, the defendant briefed this issue on appeal. Because we hold that there is no genuine issue of material fact to preclude granting the Postmaster General’s motion for summary judgment, as we will discuss infra, we need not reach the § 504 issue to decide the case before us. We do note, however, that we agree with Seventh Circuit precedent that it is doubtful that \"§ 504 applies to employment discrimination suits against federal agencies.” McWright v. Alexander, 982 F.2d 222, 225 (7th Cir.1992); Overton v. Riley [Reilly], 977 F.2d 1190, 1193 (7th Cir.1992); McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984) (”[I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies ... in Section 501, would have done so again a few sections later in Section 504”). Johnson v. Runyon, 47 F.3d 911, 917 n. 5 (7th Cir.1995). . United States v. Porter, 581 F.2d 698 (8th Cir.1978) (regarding when the regulations of the Small Business Association would release a defendant from liability for guaranty loans); Jones" }, { "docid": "2151429", "title": "", "text": "not have been [sic] known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. . In their briefs, both parties raise and argue the issues of (1) whether the statute of limitations should be equitably tolled for Johnson; and (2) whether § 504 of the Rehabilitation Act authorizes claims against federal agencies for employment discrimination based on handicaps. Nei ther party, however, raised these issues during oral argument. Because we hold that Johnson does meet the tolling requirements of 29 C.F.R. § 1614.105(a)(2), we need not reach either of these issues to decide the case before us. We do note, however, that we agree with Seventh Circuit precedent that it is doubtful that “§ 504 applies to employment discrimination suits against federal agencies.\" McWright v. Alexander, 982 F.2d 222, 225 (7th Cir.1992); Overton v. Reilly, 977 F.2d 1190, 1193 (7th Cir.1992); McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984) (\"[I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies ... in section 501, would have done so again a few sections later in section 504.”). Furthermore, Johnson wants to bring a § 504 claim because she believes that it is not subject to the same requirements of administrative exhaustion that § 501 claims are. She is incorrect for in McGuinness we held that because Congress \"in section 505(a)(1) ... created a judicial remedy identical to Title VII for federal discrimination against the handicapped, we ... cannot believe that ... Congress would have wanted us to interpret the Act as allowing the handicapped — alone among federal employees or job applicants complaining of discrimination — to bypass the administrative remedies in Title VII.” 744 F.2d at 1322. . Johnson is unsure of the exact date on which she visited the EEOC. . Johnson argues that this court's ruling in Kontos v. United States Dep’t of Labor, 826" }, { "docid": "3252343", "title": "", "text": "(1989); Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985) (section 501 is exclusive remedy for federal employees). Other circuits, however, believe that 504 does apply. See, e.g., Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir.1983); Smith v. United States Postal Service, 742 F.2d 257, 260 (6th Cir.1984); Prewitt v. United States Postal Service, 662 F.2d 292, 302-04 (5th Cir.1981) (discussing legislative history); cf. Ristoff v. United States, 839 F.2d 1242, 1243-44 (7th Cir.1988) (assuming without discussion that plaintiff may sue federal employer under section 504). The EPA is also in dissent from our musings in McGuinness, as it has promulgated regulations under section 504 that apply to its own employees. See 40 C.F.R. pt. 12 (1991). Neither of the parties has addressed the applicability of section 504 or the differences (if any) between a claim brought under 501 and a claim brought under 504. We need not address these questions either, since the threshold issue on which the district court granted summary judgment is identical (or at least substantially similar) under both provisions. Section 504 authorizes discrimination suits by “otherwise qualified handicapped individual[s].” Section 501(b) is phrased in very different terms: the section says nothing about discrimination or qualifications and merely requires federal agencies to submit affirmative action plans. Nonetheless, section 505(a)(1), 29 U.S.C. 794a(a)(l) (1988), authorizes individual lawsuits against federal agencies that violate the terms of section 501. And regulations promulgated by the Equal Employment Opportunity Commission (EEOC) under section 501 make clear that federal agencies may not discriminate against “qualified physically or mentally handicapped person[s].” 29 C.F.R. § 1613.703 (1991); see generally Langon v. Department of Health and Human Services, 959 F.2d 1053, 1057 (D.C.Cir.1992). Thus, Overton may not maintain an action under either provision unless he is “qualified.” “Qualified” is a defined term. The EEOC polices section 501, 29 U.S.C. 791(b), and defines a qualified handicapped person as one who “with or without reasonable accommodation, can perform the essential functions of the position in question....” 29 C.F.R. § 1613.702(f) (1991). “Reasonable accommodation” is also defined: Reasonable accommodation may include, but shall not" }, { "docid": "11321181", "title": "", "text": "the Rehabilitation Act, including amendments to the Act and the legislative history of those amendments makes clear that § 501 is a federal employee’s exclusive remedy for employment discrimination based on handicap, and that §§ 501 and 504 do not provide overlapping protection for federal employees who allege employment discrimination based on handicap. Boyd v. United States Postal Serv., 752 F.2d 410, 413 (9th Cir.1985) (citing McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321-22 (7th Cir.1984)). Section 501 of the Rehabilitation Act currently provides in relevant part that: Each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch shall, ... submit ... an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals in such department, agency, or instrumentality____ 29 U.S.C. § 791(b). Section 504 of the Rehabilitation Act currently provides that: No otherwise qualified individual with handicaps in the United States, ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794. Before 1978, § 504 ended after the words “financial assistance.” However, DiPompo’s argument for a right of action against the government as his employer rests on the next clause. That clause was added in 1978. In 1978, Congressman (now Senator) Jeffords, author of the amendment to § 504, thought that state agencies receiving federal funding were required to comply with § 504, while federal aid programs such as the Comprehensive Employment Training Act, also known as CETA, were exempted. 124 Cong.Rec. 13,901, 38,550-51 (1978) (discussing Memorandum Opinion for the Gen. Counsel of the Dep’t of Health, Educ. & Welfare, 1 Op.Off. Legal Counsel 210 (1977)). In response to that perception, Congressman Jeffords proposed an amendment that he thought made direct federal aid programs, such as CETA, subject to § 504. 124 Cong.Rec. at 13,900-02, 38,550-52 (1978); see also" }, { "docid": "11510156", "title": "", "text": "and 504. See McWright v. Alexander, 982 F.2d 222, 226 n. 1 (7th Cir.1992). The Seventh Circuit is among those courts of appeals which have expressed doubt that section 504 applies to employment discrimination suits against federal agencies. See Id. at 225; Overton v. Reilly, 977 F.2d 1190, 1193 (7th Cir.1992); McGuinness v. United States Postal Service, 744 F.2d 1318, 1321-22 (7th Cir.1984). In moving for summary judgment the sole argument propounded by the Postmaster General is that: “plaintiff cannot prove that she is capable of performing the essential functions of her former position either with or without accommodation. Plaintiff is totally disabled from work as evinced by her receipt of Social Security and Federal Employee Retirement System disability retirements benefits.” Memorandum in Support of Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment at 10. In other words, the Defendant contends that, because other government agencies have concluded that Kupferschmidt was totally disabled at some time in the past, Kupferschmidt cannot prove that she is a “qualified handicapped person” at the time she applied for reinstatement — a necessary element of any Rehabilitation Act claim. “Qualified” is a defined term. The Equal Employment Opportunity Commission defines a “qualified handicapped person” as one who “with or without reasonable accommodation, can perform the essential function of the position in question-” 29 C.F.R. § 1613-702(f). The record in this case does not reveal the essential functions of the position Kupferschmidt formerly held at the Postal Service. Cf. Davis v. Frank, 711 F.Supp. 447, 453 (N.D.Ill.1989) (job description is relevant to determination of essential functions of position). As set forth above, however, the Defendant maintains that Kupferschmidt is not qualified for any position with or without reasonable accommodation because she receives Social Security disability benefits and Federal Employee Retirement System disability retirement benefits. This court cannot grant summary judgment as a matter of law on this basis because six months before the Defendant submitted his brief the Seventh Circuit indicated that a finding of disability by the Social Security Administration should not be given preclusive effect in a Rehabilitation Act case." }, { "docid": "11510154", "title": "", "text": "rejection. See Hamilton v. Komatsu Dresser Industries, Inc., 964 F.2d 600, 605-06 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 324, 121 L.Ed.2d 244 (1992). Next, the Postal Service argues that the May of 1990 failure to reinstate claim should also be dismissed because Kupferschmidt’s reapplication following the January rejection was obviously futile and was merely an attempt to extend the administrative limitation period for the January rejection. The record does not reveal any change of circumstances which might have prompted Kupferschmidt’s March of 1990 reapplication and Kupferschmidt herself has offered no explanation. At least one district court in this circuit has ruled that a plaintiff cannot extend a limitation period by repeatedly renewing a demand for reinstatement. See Mitilinakis v. City of Chicago, 735 F.Supp. 839, 841 (N.D.Ill.1990). Although the court agrees with this ruling, it will proceed to consider the merits of the claim based on the refusal to rehire in May of 1990, because the filings for the May of 1990 claim were timely in other respects and because the parties have not adequately addressed this issue in their briefs. B. REHABILITATION ACT CLAIM The Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-797b, as amended, (West Supp.1993), is legislation designed to assist and protect the rights of the handicapped. The Act provides for private rights of action to redress violations of the Act under two sections. Section 501, 29 U.S.C.A. § 791 (West Supp.1993), imposes an affirmative duty upon federal agencies “to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion.” Ryan v. Federal Deposit Insurance Corporation, 565 F.2d 762, 763 (D.C.Cir.1977). Section 504 of the Act, 29 U.S.C.A. § 794 (West Supp.1993), prohibits discrimination against individuals with handicaps by reason of their handicap “under any program or activity conducted by any Executive agency or by the United States Postal Service.” Unfortunately, in this ease, the parties have not identified which section of the Reha bilitation Act is at issue. This is essential because there are procedural and remedial differences between sections 501" }, { "docid": "10477413", "title": "", "text": "as stated in Overton, the SSA’s decision to award benefits is not synonymous with a determination that plaintiff is not a “qualified individual” under the ADA. Nor does it amount to a determination that the plaintiff can not find work in the economy. This is particularly true in the present case because Smith has found another job as a full-time administrator. Recent district court cases in this and other circuits have applied the same reasoning to cases factually similar to the present case. In Kupferschmidt v. Runyon, 827 F.Supp. 570 (E.D.Wis.1993), the defendant moved for summary judgment on plaintiffs claim under the Rehabilitation Act, arguing that “because other government agencies have concluded that Kupferschmidt was totally disabled at some time in the past, Kupferschmidt cannot prove that she is a ‘qualified handicapped person’ at the time she applied for reinstatement.” The court, relying on Overton, rejected this argument and held that the fact that the plaintiff received social security and federal employee retirement system disability benefits did not preclude her from proving that she was a “qualified handicapped person” under the Rehabilitation Act. Id. at 574. Similarly, in Lawrence v. United States ICC, 629 F.Supp. 819 (E.D.Pa.1985), plaintiff claimed that defendants’ harassing conduct led to plaintiffs heart condition and subsequent retirement on medical disability. Pri- or to his retirement, plaintiff completed a disability retirement application in which he stated that he was “ ‘[tjotally disabled’ ” and “ ‘unable to carry out the vigorous activity required by my position.’ ” The defendants moved for summary judgment, arguing, as defendant does here, that these representations judicially estopped plaintiff from asserting that he was now able to work, and that his disability was brought about by defendants’ wrongful acts. The court rejected this argument and held that plaintiffs claim that he was now able to work was not inconsistent with his statements that he was not able to perform his job at the time he filled out his disability retirement application. Likewise, the court rejected defendants’ argument that plaintiffs current acceptance of disability benefits precluded him from recovering: “A retiree’s acceptance of" }, { "docid": "18011962", "title": "", "text": "in or beneficiaries of a “program or activity conducted by any Executive agency”; they are Government employees. Moreover, because the Congress addressed discrimination against Government employees, including specifically employees of the Smithsonian Institution, in § 501, it is highly unlikely the Congress meant to address the subject again in § 504. See McGuinness v. U.S. Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984). Both in its own terms and in the context of the statutory scheme, therefore, it is unreasonable to interpret § 504’s prohibition of “discrimination under any program or activity conducted by any Executive agency” as a prohibition of discrimination in employment by the Government. We now hold, therefore, in conformity with the majority of courts to have addressed the issue, that § 504 does not provide federal employees an “alternative route for relief under the Rehabilitation Act.” Rivera v. Heyman, 157 F.3d 101, 104 (2nd Cir.1998) (so holding where, as here, plaintiff was employee of Smithsonian Institution); see Johnson v. U.S. Postal Serv., 861 F.2d 1475, 1478 (10th Cir.1989) (“only section 501 provides a private cause of action for federal employees ... alleging employment discrimination based on handicap”) (emphasis in original); Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir.1985) (“section 501 is the exclusive remedy for discrimination in employment by [a federal agency] on the basis of handicap”); McGuinness, 744 F.2d at 1321. But see Gardner v. Morris, 752 F.2d 1271, 1277 (8th Cir.1985) (recognizing cause of action for employment discrimination against federal employer under both §§ 501 and 504); Smith v. U.S. Postal Serv., 742 F.2d 257 (6th Cir.1984) (same); Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir.1981) (same). Taylor also argues that dismissal of her claim was inappropriate, notwithstanding her failure to invoke the correct section of the Act, because she had set forth all the elements of a claim under § 501. Taylor’s argument is unavailing, at least in the circumstances of this case. The Smithsonian’s motion for summary judgment put Taylor on notice of her error. Taylor’s only response was that she had inadver tently cited § 505(1)" } ]

[ { "docid": "7650823", "title": "", "text": "07-07, which prohibits a landowner from building a private institutional facility on any property subject to a transferable development rights easement. Because Bethel’s property is subject to such an easement, ZTA 07-07 bars it from building even the smaller 800-seat church. In April 2008, the County “deferred” Bethel’s well and septic application pending submission of a proposed use consistent with ZTA 07-07 (ie., agriculture or single family homes); Bethel’s appears to have been the only pending application effectively denied based on ZTA 07-07. A month later, in May 2008, Bethel filed this action in federal court alleging that ZTA 07-07 and the “deferral” of its application for a well and septic system violated its rights under RLUIPA, the First and Fourteenth Amendments, and the Maryland Declaration of Rights. After completion of discovery, the County moved for summary judgment. The district court conducted a hearing and then granted summary judgment to the County on all claims. Bethel noted a timely appeal. We review the district court’s grant of summary judgment de novo. Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 174 (4th Cir.2009). II. Bethel’s principal appellate argument is that the County violated the substantial burden provision of RLUIPA. See 42 U.S.C. § 2000cc(a)(l). That provision prohibits the imposition or implementation of any land use regulation in a manner that: imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution— (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. Id. “Religious exercise” includes “[t]he use, building, or conversion of real property for the purpose of religious exercise.” Id. § 2000cc-5(7). A. Before turning to the merits of Bethel’s substantial burden claim, we note that the district court’s substantial burden analysis rested on two misunderstandings of the appropriate legal standards. We address these in turn. 1. First, in considering whether the County imposed a substantial burden on Bethel’s religious exercise, the district" } ]

[ { "docid": "4087900", "title": "", "text": "14 years. Before Andón filed the application seeking a variance, the Zoning Administrator had informed Andón that the application would not be approved for failure to meet the setback requirement. Thus, the plaintiffs assumed the risk of an unfavorable decision, and chose to mitigate the impact of such a result by including the contingency provision in the lease. Accordingly, unlike the governmental action at issue in Bethel, the BZA’s denial of the variance in the present case did not alter any pre-existing expectation that the plaintiffs would be able to use the property for a church facility, or cause them to suffer delay and uncertainty in locating a place of worship. Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships. See Petra Presbyterian Church, 489 F.3d at 851 (because the plaintiff purchased property with knowledge that the permit to use the property for a church would be denied, the plaintiff “assumed the risk of having to sell the property and find an alternative site for its church”). A self-imposed hardship generally will not support a substantial burden claim under RLUIPA, because the hardship was not imposed by governmental action altering a legitimate, pre-existing expectation that a property could be obtained for a particular land use. See Bethel, 706 F.3d at 556-58; Petra Presbyterian Church, 489 F.3d at 851. Therefore, we hold that under these circumstances, the plaintiffs have not satisfied the “substantial burden” requirement of govern mental action under RLUIPA. See Bethel, 706 F.3d at 556; Guru Nanak Sikh Soc’y of Yuba City, 456 F.3d at 988-89; Civil Liberties for Urban Believers, 342 F.3d at 761. Our conclusion is not altered by the plaintiffs’ further contention that they have been unable to find another property that meets the congregation’s desired location, size, and budgetary limitations. The absence of affordable and available properties within a geographic area will not by itself support a substantial burden claim under RLUIPA. See Civil Liberties for Urban Believers, 342 F.3d at" }, { "docid": "4087895", "title": "", "text": "amended complaint, and entered judgment in favor of the City. The plaintiffs timely filed this appeal. II. We review de novo the district court’s dismissal of a complaint under Rule 12(b)(6) for failure to state a claim. United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707 F.3d 451, 455 (4th Cir.2013). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When reviewing the district court’s action, we consider the factual allegations in the plaintiffs’ complaint as true. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir.2003). The plaintiffs argue that the district court erred in dismissing their complaint of a RLUIPA violation, contending that the BZA’s action denying a variance imposed a substantial burden on their religious exercise. Citing our decision in Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548 (4th Cir.2013), the plaintiffs assert that they plausibly alleged a claim under RLUIPA, because, as a result of the BZA’s action, the congregation has been unable to find a suitable location in the City for worship, and the plaintiffs have suffered “delay, expense, and uncertainty” in establishing a church location and in executing the lease agreement. The plaintiffs alternatively contend that the district court abused its discretion in refusing their request to amend their complaint. We disagree with the plaintiffs’ arguments. RLUIPA contains two provisions limiting governmental regulation of land use with respect to religious exercise. The first such RLUIPA provision prohibits governmental entities from imposing land use restrictions that: (1) treat a religious organization “on less than equal terms” with a nonreligious organization; or (2) discriminate against any organization on the basis of religion. 42 U.S.C. § 2000cc(b)(l), (2). The second RLUIPA provision addressing governmental regulation of land use, on which the plaintiffs base their claim, does not require a showing of discriminatory governmental conduct. 42 U.S.C. § 2000cc(a)(l); see Bethel, 706 F.3d at 557. Instead, this provision prohibits a governmental entity from" }, { "docid": "4087890", "title": "", "text": "Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Judge WILKINSON and Judge HARRIS joined. BARBARA MILANO KEENAN, Circuit Judge: In this appeal, we consider whether the district court erred in dismissing with prejudice a complaint filed by two entities, Andón, LLC, and Reconciling People Together in Faith Ministries, LLC (collectively, the plaintiffs) against the City of Newport News, Virginia (the City, or Newport News). The plaintiffs’ complaint alleged that the City, acting through its Board of Zoning Appeals (BZA), violated the Religious Land Use and Institutionalized Persons Act (RLUIPA, or the Act), 42 U.S.C. § 2000cc et seq., by denying the plaintiffs’ request for a variance to permit a certain property to be used as a church facility. Upon our review, we conclude that the plaintiffs failed to state a claim that the BZA’s decision imposed a substantial burden on the plaintiffs’ right of religious exercise. We also conclude that the district court did not abuse its discretion in denying the plaintiffs’ request to amend their complaint, because any such amendment would have been futile. We therefore affirm the district court’s judgment. I. In 2012, Walter T. Terry, Jr. formed a congregation for religious worship known as Reconciling People Together in Faith Ministries, LLC (the congregation) in Newport News, and served as its pastor. Although the members of the congregation initially gathered to worship in a local business owned by Terry, they later sought a larger location for their use. Terry ultimately found a suitable property, which included an office building (the building) and a small parking lot, that was offered for “lease or sale” by Andón, LLC (Andón). The property is located at 6212 Jefferson Avenue in Newport News (the property). Andón had purchased the property, a 0.32-acre parcel of land, in 2011. Since 1997, the property continuously has been classified for commercial use under the City’s zoning ordinance. The ordinance provides that properties zoned for commercial use may be used for a “community facility,” including a “place of worship” or church, only when four conditions are satisfied: (a) access is provided from a public street" }, { "docid": "4087896", "title": "", "text": "a claim under RLUIPA, because, as a result of the BZA’s action, the congregation has been unable to find a suitable location in the City for worship, and the plaintiffs have suffered “delay, expense, and uncertainty” in establishing a church location and in executing the lease agreement. The plaintiffs alternatively contend that the district court abused its discretion in refusing their request to amend their complaint. We disagree with the plaintiffs’ arguments. RLUIPA contains two provisions limiting governmental regulation of land use with respect to religious exercise. The first such RLUIPA provision prohibits governmental entities from imposing land use restrictions that: (1) treat a religious organization “on less than equal terms” with a nonreligious organization; or (2) discriminate against any organization on the basis of religion. 42 U.S.C. § 2000cc(b)(l), (2). The second RLUIPA provision addressing governmental regulation of land use, on which the plaintiffs base their claim, does not require a showing of discriminatory governmental conduct. 42 U.S.C. § 2000cc(a)(l); see Bethel, 706 F.3d at 557. Instead, this provision prohibits a governmental entity from imposing or implementing a land use regulation ... that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc(a)(l). To state a substantial burden claim under RLUIPA, a plaintiff therefore must show that a government’s imposition of a regulation regarding land use, or application of such a regulation, caused a hardship that substantially affected the plaintiffs right of religious exercise. See Bethel, 706 F.3d at 556; Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter, 456 F.3d 978, 988-89 (9th Cir.2006); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.2003). We addressed the scope of substantial burden claims under RLUIPA in our decision in Bethel. The plaintiff in Bethel asserted a substantial burden claim against a county that had" }, { "docid": "16731935", "title": "", "text": "may be liable for monetary damages under RLUIPA, if plaintiffs prove a violation and damages. B. RLUIPA. The facts are not at issue. We review the legal conclusions of the district court de novo. RLUIPA has two separate provisions limiting government regulation of land use. One prohibits governments from implementing land use regulations that impose “a substantial burden” on religious exercise unless the government demonstrates that they further a “compelling governmental interest” by the “least restrictive means.” That “substantial burden” provision is not at issue here. The second RLUIPA land use provision prohibits a government from imposing a land use restriction on a religious assembly “on less than equal terms” with a nonreligious assembly. This “equal terms” provision is the one before us. We have not had occasion to construe it. We decided a Sikh temple case under the “substantial burden” provision in Guru Nanak Sikh Society v. County of Sutter. We laid out the history of RLUIPA, that Congress promulgated RLUIPA after City of Boeme v. Flores had invalidated the Religious Freedom Restoration Act of 1993 (RFRA). RLUIPA’s purpose was to address what Congress perceived as inappropriate restrictions on religious land uses, especially by “unwanted” and “newcomer” religious groups. We held that the “substantial burden” portion of RLUIPA (unlike RFRA) “is constitutional because it addresses documented, unconstitutional government actions in a proportional manner.” We reversed a summary judgment against a church, and held that the church had established enough to get to trial under the “substantial burden” provision, in International Church of the Foursquare Gospel v. City of San Leandro. Because we reversed under the “substantial burden” provision, we expressly did not address the “equal terms” provision in Foursquare Gospel. Now we do. The statutory text of the equal terms provision says: No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. Most of the elements of the prohibition are not at issue: (1) there must be an imposition or implementation of a land-use regulation, (2) by a" }, { "docid": "4087904", "title": "", "text": "F.3d 105, 121 (4th Cir.2013) (“Denying leave to amend is appropriate when ... the amendment would have been futile.”). III. For these reasons, we affirm the district court’s judgment dismissing with prejudice the plaintiffs’ complaint against the City. AFFIRMED . The building is located 33 feet, 85 feet, and 80 feet away from the rear and side property lines abutting neighboring residential properties. . The City also argued in its motion to dismiss that Andón lacked standing to bring the RLUIPA claim. The district court disagreed, and the City does not challenge this ruling on appeal. Although a litigant’s standing presents a jurisdictional question that may be considered sua sponte by this Court, see Benham v. City of Charlotte, 635 F.3d 129, 134 (4th Cir.2011), we need not address the district court’s ruling regarding Andon’s standing, because the congregation unquestionably had standing to hie suit alleging a violation under RLUIPA. . Under RLUIPA, “ ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). And \"[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” 42 U.S.C. § 2000cc-5(7)(B). . We do not reach the merits of the plaintiffs’ separate, speculative contention that if the congregation had purchased the property, instead of entering into a contingent lease agreement, the financial loss sustained would have been sufficient to state a substantial burden claim. We decline to pass judgment on facts not before us." }, { "docid": "4087902", "title": "", "text": "762 (concluding that the “scarcity of affordable land available” and costs “incidental to any high-density urban land use” represent “ordinary difficulties associated with location” and do not support a substantial burden claim under RLUIPA). We further observe that if we agreed with the plaintiffs that the BZA’s denial of a variance imposed a substantial burden on their religious exercise, we effectively would be granting an automatic exemption to religious organizations from generally applicable land use regulations. Such a holding would usurp the role of local governments in zoning matters when a religious group is seeking a variance, and impermissibly would favor religious uses over secular uses. See Petra Presbyterian Church, 489 F.3d at 851 (reasoning that the substantial burden requirement must be taken seriously, or religious organizations would be free “from zoning restrictions of any kind”); Civil Liberties for Urban Believers, 342 F.3d at 762 (explaining that no “free pass for religious land uses masquerades among the legitimate protections RLUIPA affords to religious exercise”). The plain language of RLUIPA, however, prevents such a result. By requiring that any substantial burden be imposed by governmental action and by carefully balancing individual rights and compelling governmental interests, the language of RLUIPA demonstrates that Congress did not intend for RLUIPA to undermine the legitimate role of local governments in enacting and implementing land use regulations. See Petra Presbyterian Church, 489 F.3d at 851; Civil Liberties for Urban Believers, 342 F.3d at 762. Finally, we conclude that the district court did not abuse its discretion in denying the plaintiffs’ request to amend their complaint. See HealthSouth Rehab. Hasp. v. Am. Nat’l Red Cross, 101 F.3d 1005, 1010 (4th Cir.1996) (stating the applicable standard of review). Because the plaintiffs did not have a reasonable expectation to use the property as a church and any burden on their religious exercise was self-imposed, the plaintiffs cannot articulate any set of facts demonstrating that an amendment would survive the City’s motion to dismiss. Thus, we agree with the district court that any amendment to the complaint would have been futile. See Scott v. Family Dollar Stores, Inc., 733" }, { "docid": "5642642", "title": "", "text": "for summary judgment on count 10 (retaliation for First Amendment activity). ECF No. 54. The defendants have not opposed the cross-motion for summary judgment or replied to Ross’s opposition to the motion to dismiss. See docket. II. Analysis A. The Defendants’ Motion 1. Standards of Review i. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006). The Court bears in mind that Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Migdal v. Rowe Price-Fleming Int’l Inc., 248 F.3d 321, 325-26 (4th Cir.2001). Although Rule 8’s notice-pleading requirements are “not onerous,” the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir.2003). These facts must be sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This requires the plaintiff to do more than “plead[ ] facts that are ‘merely consistent with a defendant’s liability’ the facts pled must “allow[ ] 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) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The complaint must not only allege but also “show” that the plaintiff is entitled to relief. Id. at 679, 129 S.Ct. 1937. “Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief.” Id. (internal quotation marks omitted). ii. Summary Judgment Under Rule 56(a), summary judgment “shall" }, { "docid": "16286218", "title": "", "text": "of RLUIPA, 42 U.S.C. § 2000cc(b)(l). The court also concluded, as we have for the other RLUIPA claims, that Covenant has failed to produce evidence of compensatory damages for the equal terms claim. The City, in its cross-appeal, argues that the district court erred in finding that the 2004 Ordinance facially violates the equal terms provision of RLUIPA and that the court erred in awarding nominal damages for this claim. We find no error in the district court’s treatment of the equal terms claim and the award of nominal damages. RLUIPA’s equal terms provision states that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(l). The only issue in this case is whether the 2004 Ordinance facially differentiates between religious and nonreligious assemblies or institutions. To state an equal terms violation, a plaintiff has the burden of showing the following elements: “(1) the plaintiff must be a religious assembly or institution, (2) subject to a land use regulation, that (3) treats the religious assembly on less than equal terms, with (4) a nonreligious assembly or institution.” Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1307-08 (11th Cir.2006) (citing 42 U.S.C. § 2000cc(b)(l)). Once the plaintiff produces prima facie evidence supporting an equal terms violation, the government bears the burden of showing the land use regulation passes strict scrutiny — that is, the regulation “employs a narrowly tailored means of achieving a compelling government interest.” Id. at 1308 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 2233, 124 L.Ed.2d 472 (1993)). The City first argues that the equal terms claim fails because private parks, playgrounds, and neighborhood recreation centers do not qualify as an “assembly” under RLUIPA, and thus the City can treat these entities differently than religious assemblies without running afoul of RLUIPA. The City reasons that those who attend these places are not assembling for a" }, { "docid": "16858687", "title": "", "text": "the basis of religion or religious denomination. (3) EXCLUSIONS AND LIMITS— No government shall impose or implement a land use regulation that— (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. Lighthouse argues the District Court should have entered summary judgment in its favor because both the Ordinance and the Plan violate RLUIPA’s Equal Terms provision on their face by allowing secular assemblies, but not religious ones, to locate in the zones they regulate. Lighthouse contends the District Court misinterpreted RLUIPA, imposing additional requirements not contemplated by the statute. It urges us to reverse the judgment of the District Court and to hold that (1) a plaintiff, advancing a claim under the Equal Terms provision, need not prove that the unequal treatment imposed a “substantial burden” on its exercise of religion; (2) the Equal Terms provision does not require the identification of a similarly situated comparator; a religious assembly need only show that the challenged land-use regulations treat any secular assembly better than the religious plaintiff; and (3) unlike the Substantial Burdens section, the Equal Terms provision does not provide for strict scrutiny of offending land-use regulations but rather operates under a strict liability standard, making the regulations automatically invalid. Long Branch responds that the District Court’s decision was correct. The parties substantially agree that both the Ordinance and the Plan are land use regulations within the meaning of 42 U.S.C.2000cc(b), that Lighthouse’s proposed church use is use as a religious assembly, and that several of the permitted uses under both ordinances are nonreligious assemblies. The question is what else Lighthouse must show in order to prevail. 1. Must a plaintiff in an action under RLUIPA’s Equal Terms provision show that the alleged discriminatory land-use regulation imposes a “substantial burden” on its religious exercise? The District Court held that a plaintiff raising a claim under the Equal Terms provision must show that the challenged land-use regulation imposed a “substantial burden” on its exercise of religion. We disagree because the structure of the statute and the legislative history clearly reveal" }, { "docid": "4087893", "title": "", "text": "reviewing Andon’s application, the City Codes and Compliance Department (the Compliance Department) filed a report with the BZA concerning the variance request. The report stated that the BZA, prior to issuing a variance, must first find that: (1) “strict application of the ordinance would produce an undue hardship” relating to the property “not shared generally by other properties”; (2) such a variance “will not be of substantial detriment to adjacent property”; and (3) “the character of the district will not be changed” by granting the variance. See Newport News, Va. Municipal Code § 45-3203(c). Based on these restrictions, the Compliance Department recommended that the BZA deny the variance, because the property could be used for other purposes without a variance, and because denial of a variance would not cause Andón to suffer a hardship unique among other commercial property owners in the vicinity. After holding a public hearing, the BZA adopted the Compliance Department’s recommendation and voted to deny the variance request. Andón appealed from the BZA decision to a Virginia state circuit court, which upheld the BZA’s determination. The plaintiffs filed the present suit in federal district court alleging that the BZA’s denial of their variance request imposed a substantial burden on the plaintiffs’ religious exercise in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(l) (the substantial burden claim). The plaintiffs alleged that the BZA’s action caused “delay in obtaining a viable worship location” and “uncertainty as to whether ... the [congregation will be able to go forward with the lease of the [property.” The plaintiffs attached to their complaint an affidavit from Terry, who stated that he “could not find a[n alternate property] that was the appropriate size, location, and price” to serve as a place of worship for the congregation. He also stated in the affidavit that “[m]any of the [alternative] buildings were too large and too expensive for [the] young congregation.” The City moved to dismiss the complaint with prejudice under Federal Rule, of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the City’s motion, denied the plaintiffs’ request to file an" }, { "docid": "4087894", "title": "", "text": "upheld the BZA’s determination. The plaintiffs filed the present suit in federal district court alleging that the BZA’s denial of their variance request imposed a substantial burden on the plaintiffs’ religious exercise in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(l) (the substantial burden claim). The plaintiffs alleged that the BZA’s action caused “delay in obtaining a viable worship location” and “uncertainty as to whether ... the [congregation will be able to go forward with the lease of the [property.” The plaintiffs attached to their complaint an affidavit from Terry, who stated that he “could not find a[n alternate property] that was the appropriate size, location, and price” to serve as a place of worship for the congregation. He also stated in the affidavit that “[m]any of the [alternative] buildings were too large and too expensive for [the] young congregation.” The City moved to dismiss the complaint with prejudice under Federal Rule, of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the City’s motion, denied the plaintiffs’ request to file an amended complaint, and entered judgment in favor of the City. The plaintiffs timely filed this appeal. II. We review de novo the district court’s dismissal of a complaint under Rule 12(b)(6) for failure to state a claim. United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707 F.3d 451, 455 (4th Cir.2013). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When reviewing the district court’s action, we consider the factual allegations in the plaintiffs’ complaint as true. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir.2003). The plaintiffs argue that the district court erred in dismissing their complaint of a RLUIPA violation, contending that the BZA’s action denying a variance imposed a substantial burden on their religious exercise. Citing our decision in Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548 (4th Cir.2013), the plaintiffs assert that they plausibly alleged" }, { "docid": "11374885", "title": "", "text": "dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Parpasan v. Attain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The motion should be granted unless the complaint “states a plausible claim for relief.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). In considering a Rule 12(b)(6) motion, the Court “must accept as true all of the factual allegations contained in the complaint,” drawing “all reasonable inferences” in the non-moving party’s favor. E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted). The court is not obligated to assume the veracity of the legal- conclusions drawn from the facts alleged. Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008) (citing Dist. 28, United Mine Workers of Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1979)). The complaint must contain sufficient factual allegations, taken as true, “to raise a right to relief above the speculative level” and “nudge [the] claims across the line from conceivable to plausible.” Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The facial plausibility standard requires pleading of “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 554 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The plausibility requirement imposes not a probability requirement but rather a mandate that a plaintiff “demonstrate more than a ‘sheer possibility that a defendant has acted unlawfully.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937). Accordingly, a complaint is insufficient if it relies upon “naked assertions” and “unadorned conclusory allegations” devoid of “factual enhancement.” Id. (citations omitted). The complaint must present" }, { "docid": "9362116", "title": "", "text": "see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). The Federal Rules of Civil Procedure “require[] only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp., 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). Instead, a plaintiff must allege facts sufficient “to raise a right to relief above the speculative level,” id. (citation omitted), stating a claim that is “plausible on its face,” id. at 570, 127 S.Ct. 1955, rather than merely “conceivable.” Id. “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.” Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp., 550 U.S. at 556, 127 S.Ct. 1955). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir.2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir.2002)). “Although a motion pursuant to Rule 12(b)(6) invites an inquiry into the legal sufficiency of the complaint, not an analysis of" }, { "docid": "16858693", "title": "", "text": "(11th Cir.2005) (holding that although the zoning code at issue did not impose a substantial burden on plaintiffs religious exercise, it violated RLUIPA’s equal terms provision because it was enforced in a way that treated religious organizations on less than equal terms with secular ones); Midrash Sephardi Inc. v. Town of Surfside, 366 F.3d 1214, 1229-35 (11th Cir.2004) (a zoning ordinance prohibiting churches in a certain district violated RLUIPA’s equal terms provision although it did not impose a substantial burden on plaintiffs); Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612, 2007 WL 3151201 at *2 (7th Cir.2007); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir.2003) (“the substantial burden and nondiscrimination provisions are oper-atively independent of one another”). We now hold as well that a plaintiff challenging a land-use regulation under section 2(b)(1) of RLUIPA does not need to present evidence that the regulation imposes a substantial burden on its religious exercise. 2. Does a RLUIPA Equal Terms plaintiff need to show that it is “similarly situated” to a secular comparator that was treated better? The District Court held that Lighthouse could not prevail on its RLUIPA Equal Terms claim because it could not identify a similarly situated nonreligious comparator. Lighthouse contends this was error and urges us to take the position that a plaintiff, asserting a violation of the Equal Terms provision, needs to show nothing more than that the challenged land-use regulation treats one or more nonreligious assemblies or institutions better than a religious assembly or institution, without regard for the objectives of the regulation or the characteristics of the secular and religious comparators. We conclude that the District Court was correct in construing RLUIPA’s Equal Terms provision to require a plaintiff to do something more than identify any nonreligious assembly or institution that enjoys better terms under the land-use regulation. Nevertheless, we find that the court erred in requiring the religious plaintiff to point to a secular comparator that proposes the same combination of uses. As we will explain, what the Equal Terms provision does in fact require is a" }, { "docid": "4087903", "title": "", "text": "requiring that any substantial burden be imposed by governmental action and by carefully balancing individual rights and compelling governmental interests, the language of RLUIPA demonstrates that Congress did not intend for RLUIPA to undermine the legitimate role of local governments in enacting and implementing land use regulations. See Petra Presbyterian Church, 489 F.3d at 851; Civil Liberties for Urban Believers, 342 F.3d at 762. Finally, we conclude that the district court did not abuse its discretion in denying the plaintiffs’ request to amend their complaint. See HealthSouth Rehab. Hasp. v. Am. Nat’l Red Cross, 101 F.3d 1005, 1010 (4th Cir.1996) (stating the applicable standard of review). Because the plaintiffs did not have a reasonable expectation to use the property as a church and any burden on their religious exercise was self-imposed, the plaintiffs cannot articulate any set of facts demonstrating that an amendment would survive the City’s motion to dismiss. Thus, we agree with the district court that any amendment to the complaint would have been futile. See Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 121 (4th Cir.2013) (“Denying leave to amend is appropriate when ... the amendment would have been futile.”). III. For these reasons, we affirm the district court’s judgment dismissing with prejudice the plaintiffs’ complaint against the City. AFFIRMED . The building is located 33 feet, 85 feet, and 80 feet away from the rear and side property lines abutting neighboring residential properties. . The City also argued in its motion to dismiss that Andón lacked standing to bring the RLUIPA claim. The district court disagreed, and the City does not challenge this ruling on appeal. Although a litigant’s standing presents a jurisdictional question that may be considered sua sponte by this Court, see Benham v. City of Charlotte, 635 F.3d 129, 134 (4th Cir.2011), we need not address the district court’s ruling regarding Andon’s standing, because the congregation unquestionably had standing to hie suit alleging a violation under RLUIPA. . Under RLUIPA, “ ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42" }, { "docid": "4087899", "title": "", "text": "have been available for the plaintiff to purchase, the “delay, uncertainty, and expense” of selling the plaintiffs property and finding an alternate location increased the burden imposed on the plaintiffs religious exercise. Id. at 557-58. In reaching this conclusion, we emphasized that a critical function of RLUIPA’s substantial burden restriction is to protect a plaintiffs reasonable expectation to use real property for religious purposes. Id. at 556-57; see Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir.2007) (explaining that when an organization buys property “reasonably expecting to obtain a permit, the denial of the permit may inflict hardship” on the organization). The circumstances of the present case are materially different from those presented in Bethel. The plaintiffs here never had a reasonable expectation that the property could be used as a church. When the plaintiffs entered into- the prospective lease agreement, the property was not a permitted site for a community facility such as a church, and had not met applicable setback requirements for that type of use for at least 14 years. Before Andón filed the application seeking a variance, the Zoning Administrator had informed Andón that the application would not be approved for failure to meet the setback requirement. Thus, the plaintiffs assumed the risk of an unfavorable decision, and chose to mitigate the impact of such a result by including the contingency provision in the lease. Accordingly, unlike the governmental action at issue in Bethel, the BZA’s denial of the variance in the present case did not alter any pre-existing expectation that the plaintiffs would be able to use the property for a church facility, or cause them to suffer delay and uncertainty in locating a place of worship. Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships. See Petra Presbyterian Church, 489 F.3d at 851 (because the plaintiff purchased property with knowledge that the permit to use the property for a church would be denied, the plaintiff “assumed" }, { "docid": "9272681", "title": "", "text": "hold worship services this Sunday, March 31, 2019. See Dkt. No. 28 (\"Village's March 26 Report\") (indicating that if the Motion \"is not ... based upon ... the Plaintiff's [in]ability to hold worship services or engage in religious activities on March 31, 2019-but rather, solely based on the Village's Zoning Code; then there are not material questions of fact and no need for an evidentiary hearing\"). The Court will not consider the Church's alleged lack of alternative space for March 31 services in deciding the Motion. As discussed later, other facts warrant a finding that the Ordinance irreparably harms the Church, and the Village has not submitted evidence that places those facts in genuine dispute. B. Likelihood of Success on the Merits a. RLUIPA RLUIPA is \"the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens\" on land use and the rights of institutionalized persons, \"consistent with [Supreme Court] precedent.\" Cutter v. Wilkinson, 544 U.S. 709, 714, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). To that end, RLUIPA enacted three provisions concerning land use. The first prohibits a \"government\" from using a land use regulation to impose a \"substantial burden on the religious exercise of a person, including a religious assembly or institution.\" 42 U.S.C. § 2000cc(a)(1). The other provisions forbid such regulations to impose unequal burdens or discrimination against religious institutions and assemblies. § 2000cc(b)(1)-(2). Although the Complaint asserts that the Village has violated all three provisions, the Motion relies only on the second, \"Equal Terms\" provision. Mot. ¶ 3 (citing § 2000cc(b)(1) ). The Equal Terms provision states that \"[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.\" § 2000cc(b)(1). \"Under this provision, the plaintiff bears the initial burden to 'produce[ ] prima facie evidence to support a claim' of unequal treatment, after which the 'government ... bear[s] the burden of persuasion on any element of the claim.' \" Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm'n, 768" }, { "docid": "19521877", "title": "", "text": "12(b)(6). It dismissed the first two claims under the FCA because the SAC failed to sufficiently allege that United ever presented, or caused another contractor to present, a false claim for payment to the government, as required by §§ 3729(a)(1)(A) and (B). The district court also dismissed the retaliation claim, reasoning that the SAC did not allege that Grant engaged in the type of activity that is protected by the FCA. This appeal followed. III. First, we address Grant's claims under §§ 3729(a)(1)(A) and (B). We review de novo the district court's dismissal of a complaint for failure to state a claim under Rule 12(b)(6). Garnett v. Remedi Seniorcare, LLC , 892 F.3d 140, 142 (4th Cir. 2018). In our analysis, we consider only the allegations contained in the SAC. See E.I. du Pont de Nemours & Co. v. Kolon Indus. Inc. , 637 F.3d 435, 449 (4th Cir. 2011) (\"[M]atters beyond the pleadings ... cannot be considered on a Rule 12(b)(6) motion.\"). A. Generally, a complaint will survive a Rule 12(b)(6) motion to dismiss if it \"state[s] a claim to relief that is plausible on its face,\" meaning that it pleads sufficient facts to support a \"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) (citation omitted). However, fraud-based claims must satisfy Rule 9(b)'s heightened pleading standard. United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc. , 707 F.3d 451, 455-56 (4th Cir. 2013). Rule 9(b) requires that \"a party must state with particularity the circumstances constituting fraud or mistake.\" Fed. R. Civ. P. 9(b). Claims arising under §§ 3729(a)(1)(A) and (B) of the FCA are fraud-based claims that must satisfy Rule 9(b) 's pleading standard. Nathan , 707 F.3d at 455-56. The FCA protects the government against false claims that are presented to it in federal contracts. All FCA claims require, among other elements, that the false statement or conduct \"caused the government to pay out money or to forfeit money due.\" United States ex rel. Harrison v. Westinghouse" }, { "docid": "4087901", "title": "", "text": "the risk of having to sell the property and find an alternative site for its church”). A self-imposed hardship generally will not support a substantial burden claim under RLUIPA, because the hardship was not imposed by governmental action altering a legitimate, pre-existing expectation that a property could be obtained for a particular land use. See Bethel, 706 F.3d at 556-58; Petra Presbyterian Church, 489 F.3d at 851. Therefore, we hold that under these circumstances, the plaintiffs have not satisfied the “substantial burden” requirement of govern mental action under RLUIPA. See Bethel, 706 F.3d at 556; Guru Nanak Sikh Soc’y of Yuba City, 456 F.3d at 988-89; Civil Liberties for Urban Believers, 342 F.3d at 761. Our conclusion is not altered by the plaintiffs’ further contention that they have been unable to find another property that meets the congregation’s desired location, size, and budgetary limitations. The absence of affordable and available properties within a geographic area will not by itself support a substantial burden claim under RLUIPA. See Civil Liberties for Urban Believers, 342 F.3d at 762 (concluding that the “scarcity of affordable land available” and costs “incidental to any high-density urban land use” represent “ordinary difficulties associated with location” and do not support a substantial burden claim under RLUIPA). We further observe that if we agreed with the plaintiffs that the BZA’s denial of a variance imposed a substantial burden on their religious exercise, we effectively would be granting an automatic exemption to religious organizations from generally applicable land use regulations. Such a holding would usurp the role of local governments in zoning matters when a religious group is seeking a variance, and impermissibly would favor religious uses over secular uses. See Petra Presbyterian Church, 489 F.3d at 851 (reasoning that the substantial burden requirement must be taken seriously, or religious organizations would be free “from zoning restrictions of any kind”); Civil Liberties for Urban Believers, 342 F.3d at 762 (explaining that no “free pass for religious land uses masquerades among the legitimate protections RLUIPA affords to religious exercise”). The plain language of RLUIPA, however, prevents such a result. By" } ]

[ { "docid": "23024303", "title": "", "text": "that the EPA be ordered to substitute the resulting new designations for the present ones when the process is complete. The EPA, on the other hand, argues that even if there was a violation of APA requirements the petitioners’ substantive injuries, if any, could have been, and therefore must be deemed to have been, made whole during the post-promulgation' comment period. “Certainly regulations subject to the APA cannot be afforded the ‘force and effect of law’ if not promulgated pursuant to the statutory procedural minimum found in that Act.” Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 1723, 60 L.Ed.2d 208 (1979). This is a reasonable corollary of the Court’s recent emphasis on the limited scope of judicial review of agency action. See Costle v. Pacific Legal Foundation, 445 U.S. 198, 214-16, 100 S.Ct. 1095, 1105-06, 63 L.Ed.2d 329 (1980); Chrysler Corp., supra, 441 U.S. at 312-13, 99 S.Ct. at 1723; Vermont Yankee, supra, 435 U.S. at 556-57, 98 S.Ct. at 1218. When substantive judgments are committed to the very broad discretion of an administrative agency, procedural safeguards that assure the public access to the decisionmaker should be vigorously enforced. This we believe is sound policy. We therefore reject the agency’s argument. A further corollary of Vermont Yankee, Chrysler, and Pacific Legal Foundation is that relief for agency procedural error should be a strict reconstruction of procedural rights. In Vermont Yankee, we recognized that the APA is “ ‘a formula upon which opposing social and political forces have come to rest.’ ”... [Cjourts are charged with maintaining the balance: ensuring that agencies comply with the “outline of minimum essential rights and procedures” set out in the APA. Chrysler Corp., supra, 441 U.S. at 313, 99 S.Ct. at 1723. The proper remedy, therefore, is a reenactment of the deliberative process with correct provision for the petitioners’ participation. Whether to leave the challenged designations in effect during reenactment of the deliberative process is a difficult question. Ordinarily a failure to comply with the APA requirements of prior notice and comment would invalidate such designations. Federal Power Commission v. Transcontinental" } ]

[ { "docid": "8966437", "title": "", "text": "about those industries. See EPA Br. at 40. Despite our conclusion that the EPA failed to provide adequate notice and comment on the issue of administrative exemptions, we allow the exemptions to remain in place until the EPA conducts a new round of notice and comment. Ordinarily, when a regulation is not promulgated in compliance with the APA, the regulation cannot be “afforded the ‘force and effect of law.’ ” Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 1723, 60 L.Ed.2d 208 (1979) (citing Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) and Allegheny-Ludlam Steel Corp., 406 U.S. 742, 758, 92 S.Ct. 1941, 1951, 32 L.Ed.2d 453 (1972)). Yet, when equity de mands, an unlawfully promulgated regulation can be left in place while the agency provides the proper procedural remedy. See, e.g., Western Oil & Gas Assoc. v. EPA, 633 F.2d 803, 813 (9th Cir.1980); Chemical Mfrs. Ass’n v. EPA, 870 F.2d 177, 236 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990); but see Alaniz v. OPM, 728 F.2d 1460, 1469-70 & n. 7 (Fed.Cir.1984) (declining to leave in place procedurally inadequate regulations that are not “harmless”). Because the removal of the EPA’s exemptions may affect the EPA’s ability to respond adequately to serious safety hazards, we are reluctant to remove the exemptions here. As the Ninth Circuit reasoned in Western Oil and Gas, “[o]ur intervention into the process of environmental regulation, a process of great complexity, should be accomplished with as little intrusiveness as feasible.” 633 F.2d at 813. Also we are influenced by the fact that no party challenged the specific exemptions set by the EPA. Indeed AMC and TFI’s only complaint about the exemptions is that they are not broad enough. We emphasize, however, that, by leaving the EPA’s exemptions in place, we are not relieving the EPA of its burden to conduct notice and comment rulemaking ab initio, i.e., without giving preference to the exemptions left in place in the interim. IV. Finally we decline to reach AMC and TFI’s challenge to" }, { "docid": "8017868", "title": "", "text": "480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir.2002) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). . See, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir.2004) and Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir.2002). . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir.2004) (quoting Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 999 (9th Cir.2000)). . eBay Inc. v. MercExchange, L.L.C.,-U.S. -, 126 S.Ct. 1837, 1841, 164 L.Ed.2d 641 (2006). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 314-15, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642-643 (9th Cir.2004). . The dissent argues a NEPA violation requires an injunction prohibiting all action pending NEPA compliance. On the contrary, there is no such absolute rule, and were we to impose one, it would run afoul of Supreme Court precedent and our own precedent. The Supreme Court and Ninth Circuit precedents clearly establish that courts must apply the usual equitable factors in determining the scope of an injunction pending NEPA compliance. In Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) and Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-13, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), the Supreme Court held that courts must apply the usual equitable factors in determining the scope of an injunction pending compliance with procedural environmental laws. And in High Sierra Hikers Ass’n v. Blackwell, 390" }, { "docid": "10558982", "title": "", "text": "Fay, 326 F.2d 268 (10th Cir.1964). Mandatory injunctive relief should be granted only under compelling circumstances. Citizens Concerned, etc. v. City and County of Denver, 628 F.2d 1289 (10th Cir.1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981). The basis of injunctive relief is irreparable injury and inadequacy of legal remedies. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982). The court must balance the competing claims of injury and must consider the effect on each party in granting or withholding the requested relief. Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). By its nature environmental injury can seldom be adequately remedied by money damages and is often permanent, or at least of long duration. That is, it may be considered irreparable. Id., at 545, 107 S.Ct. at 1404. If such injury is sufficiently likely, then the balance of harms will usually favor the is suance of an injunction to protect the environment. Id. Considering the totality of the circumstances in this case, limited injunctive relief is appropriate. There is no sufficient legal remedy in this case and there is no adequate assurance that reforestation under future contracts will occur within five years. The Forest Service is hereby permanently ENJOINED from offering any land located on the Bighorn National Forest for harvest unless the Forest Service has first made a determination, based on research and experience, and pursuant to the implementing regulations and three-stage analysis discussed above, that the land is suitable for harvest. Plaintiffs motion for injunctive relief in regard to future sales is granted. 2. Application to Current Contracts The Forest Service’s December directives affect only timber sales occurring after December 6, 1989. Thirteen pending timber sales were approved prior to the directives and are based on the seven-year suitability analysis. Plaintiff seeks to enjoin the Forest Service from cutting lodge-pole pine stands on the Bighorn National Forest under existing contracts unless the Forest Service can assure, based on research and experience, those stands will be adequately restocked within" }, { "docid": "22974298", "title": "", "text": "us, had chosen the snail darter over the dam. The purpose and language of the statute limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-14, 102 S.Ct. 1798, 1803-04, 72 L.Ed.2d 91 (1982); see also Amoco Prod. Co. v. Village of Gambell, — U.S. -, 107 S.Ct. 1396, 1403 n. 9, 94 L.Ed.2d 542 (1987) (same). Congress has established procedures to further its policy of protecting endangered species. The substantive and procedural provisions of the ESA are the means determined by Congress to assure adequate protection. Only by requiring substantial compliance with the act’s procedures can we effectuate the intent of the legislature. As we stated in Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985): If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violation of the ESA’s substantive provisions will not result. The latter, of course, is impermissible. See TVA v. Hill, 437 U.S. 153 [98 S.Ct. 2279]. We conclude that the Sierra Club is entitled to injunctive relief if the COE violated a substantive or procedural provision of the ESA by allowing construction to continue in the face of the County’s failure to transfer the mitigation lands or by refusing to reinitiate consultation with the FWS. See Thomas, 753 F.2d at 763-65. The Ninth Circuit has applied this same test when plaintiffs have alleged violations of other environmental statutes. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984) (NEPA); People of Village of Gambell v. Hodel, 774 F.2d 1414, 1422-26 (9th Cir.1985) (Alaska National Interest Lands Conservation Act (ANILCA)). The Supreme Court recently reversed People of Village of Gambell. Village of Gambell, 107 S.Ct. 1396. It held that the equitable discretion of courts is not foreclosed absent a clear statement of congressional intent to do so. Id. at 1402-03. The federal defendants suggest that Village of Gambell, in addition to explicitly reversing the Ninth Circuit’s decision in that case, also implicitly overrules Thomas. We conclude the opposite:" }, { "docid": "8966436", "title": "", "text": "necessarily be appropriate to a determination of the hazards of entities using or producing radionuclides, we conclude that the notice published by the EPA did not provide interested parties with an adequate opportunity to comment. The fact that some commenters actually submitted comments suggesting the creation of administrative exemptions is of little significance. Commenting parties cannot be expected to monitor all other comments submitted to an agency. As we stated in Small Refiner Lead Phase-Down Task Force, “the EPA must itself provide notice of a regulatory proposal. Having failed to do so, it cannot bootstrap notice from a comment.” 705 F.2d at 549 (emphasis in the original). See also AFL-CIO v. Donovan, 757 F.2d 330, 339-40 (D.C.Cir.1985). We conclude that the EPA’s notice was not sufficient to advise interested parties that comments directed to the creation of administrative exemptions should be made. Indeed, we note that one of the reasons the EPA failed to grant exemptions that would have included AMC and TFI is that, according to the EPA, there was not enough information available about those industries. See EPA Br. at 40. Despite our conclusion that the EPA failed to provide adequate notice and comment on the issue of administrative exemptions, we allow the exemptions to remain in place until the EPA conducts a new round of notice and comment. Ordinarily, when a regulation is not promulgated in compliance with the APA, the regulation cannot be “afforded the ‘force and effect of law.’ ” Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 1723, 60 L.Ed.2d 208 (1979) (citing Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) and Allegheny-Ludlam Steel Corp., 406 U.S. 742, 758, 92 S.Ct. 1941, 1951, 32 L.Ed.2d 453 (1972)). Yet, when equity de mands, an unlawfully promulgated regulation can be left in place while the agency provides the proper procedural remedy. See, e.g., Western Oil & Gas Assoc. v. EPA, 633 F.2d 803, 813 (9th Cir.1980); Chemical Mfrs. Ass’n v. EPA, 870 F.2d 177, 236 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1936, 109 L.Ed.2d 299" }, { "docid": "23086957", "title": "", "text": "(5th ed. 1979) (“As used in statutes ... [shall] is generally imperative or mandatory.”). Unpersuaded by the clear language of § 706 and the weight of authority interpreting the imperative nature of “shall,” the Secretary argues that this court is not required to issue an injunction. Instead, the Secretary urges this court to use its equitable discretion to permit his continued non-compliance with the ESA, citing several Supreme Court opinions that hold that even in the face of a government statutory violation, the power to grant or deny injunctive relief rests in the sound discretion of the court. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Tennessee Valley Authority v. Hill, 437 U.S. 153, 193, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). However, these cases also unmistakably hold that Congress may “restrict! ] the court’s jurisdiction in equity” by making injunctive relief mandatory for a violation. Weinberger, 456 U.S. at 313, 102 S.Ct. 1798; see Amoco Prod. Co., 480 U.S. at 542-43 & n. 9, 107 S.Ct. 1396; see also TVA, 437 U.S. at 194, 98 S.Ct. 2279. While the Supreme Court has made clear that courts should not lightly infer Congress’ intent to curtail the courts’ traditional equitable power to exercise discretion in the granting of injunctive relief, the Court has likewise made clear Congress’ power to curb the courts’ discretion by clear expression. See Weinberger, 456 U.S. at 313, 102 S.Ct. 1798 (“Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that. Congress has intended to depart from established principles.”). Through § 706 Congress has stated unequivocally that courts must compel agency action unlawfully withheld or unreasonably delayed. Even in mandamus cases, which inherently involve court discretion, we have often spoken in strong, and occasionally even absolute, language with regard to the court’s duty to enforce agency action mandated by Congress. “If, after studying the statute and its legislative history, the" }, { "docid": "3746596", "title": "", "text": "dangers that may be posed by a discontinuity in the regulation of hazardous wastes, however, the agency may wish to consider reenacting the rules, in whole or part, on an interim basis under the “good cause” exemption of 5 U.S.C. § 553(b)(3)(B) pending full notice and opportunity for comment. See e.g., Mid-Tex Elec. Co-op, Inc. v. FERC, 822 F.2d 1123, 1131-34 (D.C.Cir.1987). As we vacate them on procedural grounds, we do not reach petitioners’ argument that the mixture and derived-from rules unlawfully expand the EPA’s jurisdiction under Subtitle C of RCRA. Shell Oil, 950 F.2d at 752 (emphasis added). In the subsequent ease of United States v. Goodner Brothers Aircraft, Inc., supra, the government made the identical argument which is now before this court—that the in validation of the Mixture Rule does not apply retroactively. The Eighth Circuit rejected the government’s argument and, because the undersigned is persuaded by the Eighth Circuit’s reasoning and is of the opinion that the United States Court of Appeals for the Sixth Circuit would adopt that reasoning, the Eighth Circuit’s decision regarding the retroactive application of Shell Oil is set forth in full below: A regulation not promulgated pursuant to the proper notice and comment procedures has no “force or effect of law” and therefore is void ab initio. See Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 1723, 60 L.Ed.2d 208 (1979). “Yet, when equity demands, an unlawfully promulgated regulation can be left in place while the agency provides the proper procedural remedy.” Fertilizer Inst. v. E.P.A., 935 F.2d 1303, 1312 (D.C.Cir.1991) (citations omitted). The Shell Oil court “vacated” and “set aside” the mixture rule. 950 F.2d at 752. The government argues, however, that under the same authority the court had to leave the rule in place, it chose to invalidate the rule only prospectively. Based upon the language in Shell Oil that the EPA may wish to reenact the mixture rule on an interim basis pending full notice and comment to avoid “discontinuity in the regulation of hazardous wastes,” the government asserts that the court must have intended only" }, { "docid": "7847796", "title": "", "text": "L.Ed.2d 91 (1982); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402-03, 94 L.Ed.2d 542 (1987). In addition, the Court must consider the magnitude of the administrative error and how extensive and substantive it was. At the crux of this case is the question whether the P.c.c. gnatcateher subspecies exists in such small numbers that the bird and its fragile habitat should receive federal protection under the Endangered Species Act. If the bird meets the criteria for listing, it should receive all the protection accorded under the Act. The release of Dr. Atwood’s research data, and the public comments thereon will permit a more informed debate, and provide a more complete record on which the Secretary will make his final decision. From the release of Dr. Atwood’s data and the Secretary’s evaluation of that data will come one of two outcomes: the bird will either be deemed threatened or not threatened. The Director of the U.S. Fish and Wildlife Service is of the opinion that removal of the P.c.c. from the threatened list during the relatively short reevaluation period would destabilize a delicate structure of regulations, and incentives, designed by State and Federal officials to protect not just the P.c.c., but the entire coastal sage scrub habitat community. The Director argues persuasively that landowners fearful of an imminent relisting of the P.c.c. may well destroy the remaining coastal sage scrub habitat on their property, in order to preemptively free themselves from potential limits on development that may come if the bird is listed permanently. By contrast, if the bird listing is continued during the review period and the P.c.c. is not entitled to listing and the Secretary so finds after an evaluation of Atwood’s data, then the southern California building industry and plaintiff Transportation Corridor Agencies would be delayed for but 100 days in their economic development and transportation construction plans. While the Court does not minimize the cost of such a delay to the plaintiffs, such delay does not outweigh the potential harm to the public interest if the Secretary’s eventual decision is" }, { "docid": "8017867", "title": "", "text": "interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action ... Will not prejudice the ultimate decision on the program. Interim action - prejudices the ultimate decision on the program when’ it tends to determine subsequent development or limit alternatives.” 40 C.F.R. § 1506.1(c)(3). . Appellants cite United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) and Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for this general proposition, but do not cite any authority holding a NEPA violation requires an automatic, full injunction rather than a partial injunction. . United States v. Alisal Water Corp., 431 F.3d 643, 654 (9th Cir.2005). . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir.2004). . Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir.2002). . eBay Inc. v. MercExchange, L.L.C.,-U.S. -, 126 S.Ct. 1-837, 1839, 164 L.Ed.2d 641 (2006). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir.2002) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). . See, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir.2004) and Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir.2002). . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir.2004) (quoting Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 999 (9th Cir.2000)). . eBay Inc. v. MercExchange, L.L.C.,-U.S. -, 126 S.Ct. 1837, 1841, 164 L.Ed.2d 641 (2006). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . Weinberger v. Romero-Barcelo, 456 U.S. 305, 314-15, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct." }, { "docid": "3041777", "title": "", "text": "the proper notice and comment procedures required under the Administrative Procedures Act, the court vacated the mixture rule. Id. at 752. When a jury verdict may be supportable on one ground but also may be based on another ground that is unconstitutional or illegal, and when it is impossible to tell which ground the jury selected, then the verdict must be set aside. Griffin v. United States, - U.S.-, 112 S.Ct. 466, 474, 116 L.Ed.2d 371 (1991); Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957). From the jury’s general verdict in this case, it is impossible to determine whether the jury found the waste to be a listed F002 waste or whether it relied upon the invalidated mixture rule. To avoid the reversal of the convictions under counts 1 through 4, the government first argues that the invalidation of the rule does not apply retroactively. A regulation not promulgated pursuant to the proper notice and comment procedures has no “force or effect of law” and therefore is void ab initio. See Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 1723, 60 L.Ed.2d 208 (1979). “Yet, when equity demands, an unlawfully promulgated regulation can be left in place while the agency provides the proper procedural remedy.” Fertilizer Inst. v. E.P.A., 935 F.2d 1303, 1312 (D.C.Cir.1991) (citations omitted). The Shell Oil court “vacated” and “set aside” the mixture rule. 950 F.2d at 752. The government argues, however, that under the same authority the court had to leave the rule in place, it chose to invalidate the rule only prospectively. Based upon the language in Shell Oil that the EPA may wish to reenact the mixture rule on an interim basis pending full notice and comment to avoid “discontinuity in the regulation of hazardous wastes,” the government asserts that the court must have intended only prospective invalidation because discontinuity would not exist if the rule was void ab initio. 950 F.2d at 752 (emphasis added). We reject the government’s interpretation because it is inconsistent with the language in Shell Oil that specifically" }, { "docid": "7847795", "title": "", "text": "usual remedy for a procedural violation of the A.P.A. is to set the regulation aside. Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 1723, 60 L.Ed.2d 208 (1979). However, in unusual circumstances “an unlawfully promulgated regulation can be left in place while an agency provides the proper procedural remedy.” Fertilizer Institute v. United States Environmental Protection Agency, 935 F.2d 1303, 1312 (D.C.Cir.1991); Chemical Manufacturers Assoc, v. Environmental Protection Agency, 870 F.2d 177, 236 (5th Cir.1989), cert. denied 495 U.S. 910, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990); Western Oil & Gas Assoc. v. Environmental Protection Agency, 633 F.2d 803, 813 (9th Cir.1980). In determining whether an agency’s action should be vacated or not pending rectification of a procedural flaw, the Court must consider (1) the purposes of the substantive statute under which the agency was acting, (2) the consequences of invalidating or enjoining the agency action, and (3) and potential prejudice to those who will be affected by maintaining the status quo. Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402-03, 94 L.Ed.2d 542 (1987). In addition, the Court must consider the magnitude of the administrative error and how extensive and substantive it was. At the crux of this case is the question whether the P.c.c. gnatcateher subspecies exists in such small numbers that the bird and its fragile habitat should receive federal protection under the Endangered Species Act. If the bird meets the criteria for listing, it should receive all the protection accorded under the Act. The release of Dr. Atwood’s research data, and the public comments thereon will permit a more informed debate, and provide a more complete record on which the Secretary will make his final decision. From the release of Dr. Atwood’s data and the Secretary’s evaluation of that data will come one of two outcomes: the bird will either be deemed threatened or not threatened. The Director of the U.S. Fish and Wildlife Service is of the opinion that removal of the P.c.c." }, { "docid": "7847794", "title": "", "text": "case was quoted as saying, “A lot of landowners will look seriously at clearing their land of coastal sage brush to rid themselves of this problem.” Charles McKay, Citing Regulatory Errors Judge Orders Songbird Off Endangered Species List, Wall St. J., May 3, 1994 at B5. Beattie Decl. ¶ 16. Plaintiffs rebut the factual assertions of Director Beattie with the declarations of Boyd Gibbons, Director of the California Department of Fish and Game, and that of Thomas Matthews, Director of Planning for the County of Orange. Those declarations confirm the importance of the N.C.C.P. Act and attest to the fact that local jurisdictions and many landowners are participating in the N.C.C.P. voluntarily and much of the coastal sage scrub habitat remaining is protected under state and local provisions, without the additional protection of federal listing of the P.c.c.. III. Decision The Court believes that the appropriate approach would be to permit the Secretary to continue the listing of the P.c.c. while he takes steps to rectify the procedural flaw in the original listing process. The usual remedy for a procedural violation of the A.P.A. is to set the regulation aside. Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 1723, 60 L.Ed.2d 208 (1979). However, in unusual circumstances “an unlawfully promulgated regulation can be left in place while an agency provides the proper procedural remedy.” Fertilizer Institute v. United States Environmental Protection Agency, 935 F.2d 1303, 1312 (D.C.Cir.1991); Chemical Manufacturers Assoc, v. Environmental Protection Agency, 870 F.2d 177, 236 (5th Cir.1989), cert. denied 495 U.S. 910, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990); Western Oil & Gas Assoc. v. Environmental Protection Agency, 633 F.2d 803, 813 (9th Cir.1980). In determining whether an agency’s action should be vacated or not pending rectification of a procedural flaw, the Court must consider (1) the purposes of the substantive statute under which the agency was acting, (2) the consequences of invalidating or enjoining the agency action, and (3) and potential prejudice to those who will be affected by maintaining the status quo. Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72" }, { "docid": "20119533", "title": "", "text": "Village of Gambell, 480 U.S. 531, 544-47, 107 S.Ct. 1396, 1403-05, 94 L.Ed.2d 542 (1987); NRDC v. Texaco Refining and Marketing, Inc., 906 F.2d 934, 941 (3d Cir.1990). The court should balance plaintiffs’ interests with the interests of the nonmoving party and other affected persons, as well as the public interest. Arthur Treacher’s at 1143. The standards for permanent and preliminary injunctions are the same, except that plaintiffs must show actual success instead of probable success on the merits. Amoco, 480 U.S. at 546 n. 12, 107 S.Ct. at 1404 n. 12. An injunction should be tailored so that it is no broader than is necessary to provide the necessary relief. Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 888 (3d Cir.), on rehearing 809 F.2d 979 (1986), cert. granted 485 U.S. 958, 108 S.Ct. 1218, 99 L.Ed.2d 419, motion denied 488 U.S. 809, 109 S.Ct. 41, 102 L.Ed.2d 21, cert. dismissed 488 U.S. 918, 109 S.Ct. 297, 102 L.Ed.2d 264 (1988). This court should “order that relief it considers necessary to secure prompt compliance with the Act.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 320, 102 S.Ct. 1798, 1807, 72 L.Ed.2d 91 (1982). Not all violations of the Act warrant the imposition of injunction. Weinberger, 456 U.S. at 311-13, 102 S.Ct. at 1802-03. An injunction may be issued under the Act only where plaintiffs have satisfied the standards for irreparable injury, and only after the court has considered the interests of the litigants and the public interest. Texaco, 906 F.2d at 941. However, “[environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco, 480 U.S. at 545, 107 S.Ct. at 1404 (quoted in Texaco at 941). Further, the court may grant an injunction even where plaintiffs have not established that measurable harm will otherwise result. See PIRG v. Powell Duffryn Terminals Inc., 720 F.Supp. 1158, 1167 (D.N.J.1989)." }, { "docid": "7496958", "title": "", "text": "máxi-mums under Emergency Price Control Act of 1942, and explaining that “[ujnless otherwise provided by statute, all the inherent powers of the District Court are available for the proper and complete exercise of that jurisdiction.”); Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987); Rambus, Inc. v. Infineon Tech. AG, et al., 164 F.Supp.2d 743 (E.D.Va.2001) (citing Richmond Tenants Org. v. Kemp, 956 F.2d 1300, 1308 (4th Cir.1992)); see also Lemon v. Kurtzman, 411 U.S. 192, 200-01, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973) (explaining that, “[i]n equity, ... courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests.... ”); Hecht Co. v. Bowles, 321 U.S. 321, 329-30, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944). It is equally well-settled that, upon a proper showing, an injunction is appropriate to remedy violations of the CWA, NEPA, and other environmental statutes. See, e.g., Frank P. Grad, 4 Treatise on Environmental Law, § 9.04[2][b] (Matthew Bender 2000) (noting that, in NEPA suits, “the remedy invariably sued for and frequently granted is an injunction which prohibits the particular agency from proceeding with the project in question until an environmental impact statement is filed that meets the requirements of the Act. The Courts of Appeal of every circuit have upheld the courts’ jurisdiction under the Administrative Procedure Act to grant injunctions to enforce NEPA.”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-20, 102 S.Ct. 1798, 1804-07, 72 L.Ed.2d 91 (reading the CWA “as permitting the exercise of a court’s equitable discretion ... to order relief that will achieve compliance with the Act.”) (emphasis in original); Amoco Prod. Co., 480 U.S. at 542-43, 107 S.Ct. at 1402-03 (discussing traditional equitable balancing approach in context of Alaska National Interest Lands Conservation Act); Sierra Club v. Marsh, 872 F.2d 497, 501 (1st Cir.1989) (explaining that, although there is no presumption in favor of injunction to remedy violations of NEPA, “ ‘traditional’ equity standards” apply); Envtl. Def. Fund v. Froehlke, 477 F.2d 1033, 1037 (8th Cir.1973) (recognizing that “the" }, { "docid": "8017869", "title": "", "text": "1396, 94 L.Ed.2d 542 (1987) . Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) . High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642-643 (9th Cir.2004). . The dissent argues a NEPA violation requires an injunction prohibiting all action pending NEPA compliance. On the contrary, there is no such absolute rule, and were we to impose one, it would run afoul of Supreme Court precedent and our own precedent. The Supreme Court and Ninth Circuit precedents clearly establish that courts must apply the usual equitable factors in determining the scope of an injunction pending NEPA compliance. In Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) and Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-13, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), the Supreme Court held that courts must apply the usual equitable factors in determining the scope of an injunction pending compliance with procedural environmental laws. And in High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642-43 (9th Cir.2004) and Idaho Watersheds Project v. Hahn, 307 F.3d 815, 834 (9th Cir.2002), we held the district court properly considered the usual equitable factors and imposed \"interim measures” amounting to a partial injunction pending NEPA compliance. We have repeatedly held district courts must consider the traditional equitable remedies in fashioning injunctive relief pending NEPA compliance. See, e.g., NRDC v. United States Forest Serv., 421 F.3d 797, 817 (9th Cir.2005); West-lands Water Dist. v. United States DOI, 376 F.3d 853, 877 (9th Cir.2004); National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 739 (9th Cir.2001); Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 732 (9th Cir.1995). Whether we refer to the form of the relief ultimately ordered as a \"partial injunction,” a \"limited injunction,” or an \"injunction” is immaterial. The dissent argues 40 C.F.R. § 1506.1(c) prohibits all action pending NEPA compliance. The regulation does not say that. Instead, it imposes only what it terms “Limitations on actions during NEPA process,” and 40 C.F.R. § 1506.1(c) expressly allows" }, { "docid": "3002640", "title": "", "text": "on it, or receive the benefit of the Navy’s response to criticisms of the plan lodged by NMFS, FWS, and the Corps itself. Consequently, the court concludes that, just as in National Wildlife, “inclusion of [pivotal data] in the administrative record after the close of the comment and hearing period had the effect of shielding the essential data and the agency’s rationale from public hearing and comment.” National Wildlife, 568 F.Supp. at 994. y APPROPRIATENESS OF A PERMANENT INJUNCTION In determining whether to issue an injunction where statutory violations have occurred, the court must engage in a two part analysis. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402-04, 94 L.Ed.2d 542 (1987); Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988). First, the court must determine whether the statute restricts the court’s equity jurisdiction, that is whether the statute would either require or preclude issuance of an injunction to remedy a violation. Village of Gambell, 107 S.Ct. at 1403; Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982). If the court finds that no such limitation can be found either in the statutory language itself or as a necessary and inescapable inference of the statutory text, then the court must engage in traditional equity balancing to determine the appropriateness of an injunction. Village of Gambell, 107 S.Ct. at 1402; Save the Yaak, 840 F.2d at 722. In the instant circumstances, the court concludes that both the language of the CWA and the results of traditional equity balancing require a permanent injunction to ensure compliance with statutory mandates. It seems well established that violations of NEPA, in and of themselves, do not necessitate an injunction to ensure compli- anee; nothing in NEPA indicates that Congress intended to limit a court’s equity jurisdiction. Save the Yaak, 840 F.2d at 722. However, the court finds otherwise in the case of the CWA. Recognizing that a court must not lightly assume that Congress intended to require an injunction, see Village of Gambell, 107 S.Ct. at 1402-03, the" }, { "docid": "16587070", "title": "", "text": "balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Finally, “courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). The Supreme Court has observed “that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it U not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and “tailored to remedy the harm shown.” Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990). B. The Plaintiff Is Entitled to Injunctive Relief 1. Likelihood of Success on the Merits The APA entitles “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... to judicial review thereof.” 5 U.S.C. § 702. Under the APA, a reviewing court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C.Cir.2001). Courts have interpreted this requirement to mean that the decision must be upheld unless it was not supported by substantial evidence. See, e.g., Kisser v. Cisneros, 14 F.3d 615, 619 (D.C.Cir.1994). In making this inquiry, the reviewing court “must consider whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)" }, { "docid": "1621309", "title": "", "text": "v. Village of Gambell, Alaska, 480 U.S. 531, 544-45, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). In eBay, the Supreme Court considered the then-practice of the Federal Circuit of promoting the “ ‘general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances,’ ” eBay, 547 U.S. at 391, 126 S.Ct. 1837 (quoting MercExchange, LLC v. eBay, Inc., 401 F.3d 1323, 1339 (Fed.Cir.2005)), and determined that the practice was inconsistent with “traditional principles of equity,” id. at 394, 126 S.Ct. 1837. The Court vacated the Federal Circuit’s decision, based upon its presumption in favor of permanent injunction, and remanded the case to the district court to consider whether a permanent injunction was warranted under the same four-factor test now in use in this court. Id. at 394, 126 S.Ct. 1837; see id. at 391, 126 S.Ct. 1837 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Amoco Prod., 480 U.S. at 542, 107 S.Ct. 1396). In Amoco Production, the district court denied the complainant Village a preliminary injunction to stop Amoco’s exploratory activities, finding that the Village had not satisfied the “traditional test for preliminary injunetion[s].” Amoco Prod., 480 U.S. at 540, 107 S.Ct. 1396. The Ninth Circuit reversed, finding that, inter alia, the district court had “balanced irreparable harm” improperly. Id. at 541, 107 S.Ct. 1396. In granting an injunction, the Ninth Circuit stated that “ ‘[¡Irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.’ ” Id. (quoting Village of Gambell v. Hodel, 774 F.2d 1414, 1423 (9th Cir.1985)). The Court found that the presumption applied by the Ninth Circuit “is contrary to traditional equitable principles,” id. at 545, 107 S.Ct. 1396, and based on this error and the erroneous evaluation of another injunctive relief prong, the Court found that the Ninth Circuit had “erred in directing the issuance of a preliminary injunction,” id. at 546, 107 S.Ct. 1396. The ease at hand is distinguishable from the eBay and Amoco Production cases because contrary to defendant’s characterization, the acceptance of lost" }, { "docid": "6868356", "title": "", "text": "determining whether to issue an injunction where statutory violations have occurred, the court must engage in a two part analysis. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402-04, 94 L.Ed.2d 542 (1987); Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988). First, the court must determine whether the statute restricts the court’s equity jurisdiction, that is whether the statute would either require or preclude issuance of an injunction to remedy a violation. Village of Gambell, 107 S.Ct. at 1403; Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982). If the court finds that no such limitation can be found either in the statutory language itself or as a necessary and inescapable inference of the statutory text, then the court must engage in traditional equity balancing to determine the appropriateness of an injunction. Village of Gambell, 107 S.Ct. at 1402; Save the Yaak, 840 F.2d at 722. Nothing in NFMA alters the court’s equity jurisdiction. The traditional “basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” Weinberger v. Romero-Barcelo, supra, 456 U.S. at 312, 102 S.Ct. at 1803. In Village of Gambell, supra, 480 U.S. at 545, 107 S.Ct. at 1404, the Court stated: Environmental injury, by its nature, can seldom be adequately remedied by money damages and-is often permanent or at least of long duration, i.e., irreparable. If such-injury is sufficiently likely, there fore, the balance of harms will usually favor the issuance of an injunction to protect the environment. However, the party seeking relief must show not merely a statutory violation, but a probability of injury serious enough to outweigh any adverse effects from the issuance of an injunction. Id. V. FINDINGS OF FACT The evidentiary hearing held from April 30 to May 9, 1991, provided a wealth of information. Expert testimony of high quality from biologists, economists, and others was presented by both sides. From the evidence admitted at the hearing the court makes and enters the following findings of fact:" }, { "docid": "2780936", "title": "", "text": "cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.” Yakus v. United States, supra, 321 U.S., at 440, 64 S.Ct., at 675 (footnote omitted). Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). The Court later summarized its holding in, Weinberger as follows: We reviewed the well-established principles governing the award of equitable relief in federal courts. Id., at 311-313, 102 S.Ct., at 1802-1804. In brief, the bases for injunctive relief are irreparable injury and inadequacy of legal remedies; In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Although particular regard should be given to the public interest, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Id., at 313, 102 S.Ct., at 1803. Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). The review of final agency action is governed by the Administrative Procedure Act under an “arbitrary or capricious” standard. 5 U.S.C. § 706(2)(A). Absent a showing of arbitrary action, a court must assume that an agency has exercised its discretion appropriately. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). An agency’s decision should be overturned if it was “arbitrary, capricious, an abuse of discretion, other otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). The Ninth Circuit has explained review of agency decisions as follows: Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency. Marsh v. Oregon Natural Resources Council, 490 U.S." } ]

[ { "docid": "18753873", "title": "", "text": "“annuity,” or are part of the estate as accounts receivable. An annuity is a “right to receive fixed, periodic payments, either for life or for a term of years,” whereas an account receivable is a “claim against a debtor usually arising from sales or services rendered.” Black’s Law Dictionary 82, 17 (5th ed. 1979); see also In re Howerton, 21 B.R. 621, 623 (Bankr.N.D.Tex.1982) (“an annuity is essentially a form of investment which pays periodically during the life of the annuitant or during a fixed term by contract rather than on the occurrence of a future contingency”). While the payments Debtor claims to be exempt are, strictly speaking, an “annuity,” they are also accounts receivable. We must, therefore, pierce the veil of this arrangement to determine its true nature. We have been unable to find any court that has identified the exact point at which an account receivable becomes an annuity deserving exemption under Louisiana law. In Beisel v. Commonwealth, 338 Pa. 519, 9 A.2d 419, 421 (1940), however, the Pennsylvania Supreme Court provided some instructive words on the difference between an annuity and an account receivable: Its determining characteristic is that the annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be derived. The purchaser of an annuity surrenders all right and title in and to the money he pays for it. On the other hand, where a debtor agrees to pay his creditor in installments at regular intervals, the debt or principal sum itself is due to the creditor although payable only in the manner agreed upon; it is an account receivable in which he has a property interest. Therefore, installment payments of a debt, or payments of interest on a debt, do not constitute an annuity. It is the substance of the arrangement rather than the label affixed to it that determines whether the payments are exempt under the Louisiana statutes as proceeds from an annuity, or accounts receivable, and part of the bankruptcy estate. The $155,196 that made up the principal of the “annuity”" } ]

[ { "docid": "8345899", "title": "", "text": "subject annuity finds a much more specific exemption for payments on account of personal bodily injury. It is a general rule of statutory construction that, a special or more specific provision must prevail over general provisions relating to the same subject matter, absent a manifestation of legislative intent to the contrary. N.D.Cent.Code § 1-02-07; Mid American Real Estate and Investment Corporation v. Lund, 353 N.W.2d 286, 290 (N.D.1984); Bumann v. St. Paul Fire and Marine Insurance Company, 312 N.W.2d 459 (N.D.1981); State v. Goetz, 312 N.W.2d 1 (N.D.1981). Bearing in mind this rule of statutory construction, it is apparent that North Dakota Century Code § 28-22-03.1(4)(b) which concerns payments on account of personal bodily injury, is the more specifically related provision and should apply to this structured tort settlement funded by the subject annuity. Therefore, the structured tort settlement annuity purchased for Ms. Johnson is not exempt under § 28-22-03.1(3) but is more specifically covered and, as the facts demonstrate, is clearly a payment on account of personal bodily injury and covered by the exemption under North Dakota Century Code § 28-22-03.l(4)(b). However, once determining that § 28-22-03.1(4)(b) applies to the subject annuity the issue becomes how much of the annuity payments may be exempted. North Dakota Century Code § 28-11-03.1(4)(b) is identical to the federal exemption contained in Bankruptcy Code section 522(d)(11)(D). Section 28-22-03.-1(4)(b) as does section 522(d)(11)(D) provides that $7,500.00 may be exempted for actual personal bodily injury. The legislative history to the federal exemption indicates that the provision “is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings.” H.R.Rep. No. 595, 95th Cong. 1st Sess. 362, reprinted in 1978 U.S.Code Cong, and Admin. News 5787, 5963, 6318. In re Haga, 48 B.R. 492, 495 (Bankr.E.D.Tenn.1985); In re Territo, 32 B.R. 377, 381 (Bankr.E.D.N.Y.1983). While actual personal bodily injury or personal bodily injury is not defined by the Code, the Debtor’s injuries must be substantial" }, { "docid": "8345893", "title": "", "text": "a relationship to illness, age, disability, etc. as does the federal exemption of section 522(d)(10)(E); However, both the Bankruptcy Code and the North Dakota statute deals with pensions and similar instruments. In deciding the issue of whether a structured tort settlement annuity may be exempted under North Dakota Century Code 28-22-03.1(3) the case of In re Simon, 71 B.R. 65 (Bankr.N.D.Ohio 1987), is instructive. In Simon, the debtor attempted to exempt annuity payments of a structured tort settlement agreement between the debtor and an insurance company under an Ohio exemption statute similar in nature to North Dakota Century Code § 28-22-03.1(3). A creditor bank in Simon objected to this exemption and claimed that the annuity should be exempt under an Ohio exemption dealing with payments on account of personal bodily injury. Id. The Ohio bankruptcy court reasoned that the term “annuity” as used in the Ohio statute, which is akin to the federal exemption in section 522(d)(10)(E) and similar to N.D.Cent.Code § 28-22-03.1(3) deals with retirement, unemployment compensation, alimony, disability payments, and things of that nature. The Simon court stated that considering the exemption statute as a whole “an annuity which is merely in settlement of a tort suit was not contemplated by the drafters. It appears they were concerned mainly with annuities as used in retirement and disability planning.” Id. In addition, the Simon court found that the exemption statute covering personal bodily injury was more specific and therefore, the tort settlement should be covered by that exemption. Id. Therefore, the Simon court concluded that the only section under which the debtor could exempt the tort settlement annuity was the section concerning personal bodily injury. Id. at 67. The court’s reasoning in Simon may be applied to the instant case. It is true that North Dakota Century Code § 28-22-03.1(3) uses the word “annuity”, however, it must be considered within the context of the entire provision. Section 28-22-03.1(3) as does the federal exemption [section 522(d)(10)(E) ] deals with pensions, life insurance, individual retirement accounts (IRA), Keogh Plans, employee pensions, and things of that nature. The type of instruments are" }, { "docid": "8345896", "title": "", "text": "an interest only in the payments themselves and not in any principal fund or source from which they may be derived. The purchaser of an annuity surrenders all right and title in and to the money he pays for it. On the other hand, where a debtor agrees to pay his creditor in installments at regular intervals, the debt or principal sum itself is due to the creditor although payable only in the manner agreed upon; it is an account receivable in which he has a property interest. Therefore, installment payments of a debt, or payments of interest on a debt, do not constitute an annuity. Id. at 1307. The structured settlement agreement between Ms. Johnson and the insurance company created a debtor-creditor relationship. The insurance company has agreed to pay Ms. Johnson a sum of money over time. The fact that the settlement agreement is funded by an annuity, bears little relevance in this debtor-creditor relationship. For example, if the annuity contract were to go in default, Ms. Johnson would still have a right to the payments from the insurer as guarantor of the annuity. The principal sum agreed to in the settlement agreement would still remain due. Therefore, the subject annuity contract merely represents installment payments of the underlying debt between Ms. Johnson and the insurer by way of the settlement agreement. Id. at 1307. It is the substance of the arrangement rather than the label affixed to it that determines whether the payments are exempt under North Dakota law. See, Id. at 1307. Therefore, the annuity payments received by Ms. Johnson are nothing more than interval payments made on an underlying debt, which represents payments on account of personal bodily injury. The decisions in Simon, Young and this court are consistent with a line of cases in which courts have disallowed claimed exemptions of annuity contracts created to pay winners of lotteries. In re Brown, 86 B.R. 944 (N.D.Ind.1988) (annuity payments are part of the bankruptcy estate); In re Miller, 16 B.R. 790, 791 (Bankr.Md.1982) (lottery winnings under which state purchased annuity for benefit of debtor were" }, { "docid": "8345900", "title": "", "text": "under North Dakota Century Code § 28-22-03.l(4)(b). However, once determining that § 28-22-03.1(4)(b) applies to the subject annuity the issue becomes how much of the annuity payments may be exempted. North Dakota Century Code § 28-11-03.1(4)(b) is identical to the federal exemption contained in Bankruptcy Code section 522(d)(11)(D). Section 28-22-03.-1(4)(b) as does section 522(d)(11)(D) provides that $7,500.00 may be exempted for actual personal bodily injury. The legislative history to the federal exemption indicates that the provision “is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings.” H.R.Rep. No. 595, 95th Cong. 1st Sess. 362, reprinted in 1978 U.S.Code Cong, and Admin. News 5787, 5963, 6318. In re Haga, 48 B.R. 492, 495 (Bankr.E.D.Tenn.1985); In re Territo, 32 B.R. 377, 381 (Bankr.E.D.N.Y.1983). While actual personal bodily injury or personal bodily injury is not defined by the Code, the Debtor’s injuries must be substantial enough to qualify as a personal injury. In re Territo, 32 B.R. 377, 381 (Bankr.E.D.N.Y.1983). The parties have agreed that Ms. Johnson suffered a bodily injury which was serious enough to attribute $7,500.00 of compensation. Absent a clear definition under the Bankruptcy Code this court will accept that the injury was both personal and serious. Therefore, because of the serious nature of the injury this court will allow the full $7,500.00 exemption pursuant to North Dakota Century Code § 28-22-03.1(4)(b). For the above stated reasons the objection of Ray Cooperative Credit Union as expressed in its motion for reconsideration is sustained. Upon reconsideration, the Debtors’ claim of exemption in annuity payments stemming from the settlement agreement is limited to $7,500.00 under N.D.Cent.Code § 28-22-03.1(4)(b). IT IS SO ORDERED. . Bankruptcy Code section 522(d)(10)(E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the" }, { "docid": "18797361", "title": "", "text": "support of the debtor and any of his dependents. The Court notes that there is neither Ohio legislative history nor Ohio case law which interprets the “future earnings” exemption created by O.R.C. § 2329.66(A)(12)(d). Hence, because Ohio has adopted virtually the exact language of the federal exemption set forth in 11 U.S.C. § 522(d)(ll)(E), it is appropriate to consult both the legislative history of that provision and the decisional law interpreting it in order to resolve the issue of whether Debtor may properly claim this future earnings exemption. In re Phillips, 45 B.R. 529 (Bankr.N.D.Ohio 1984). The intent of the drafters of 11 U.S.C. § 522(d)(10)(E) is presented in the House Report, which states: Paragraph (10) exempts certain benefits that are akin to future earnings of the debtor. These include social security, unemployment compensation, or public assistance benefits, veteran’s benefits, disability, illness, or unemployment benefits, alimony, support, or separate maintenance (but only to the extent reasonably necessary for the support of the debtor and any dependents of the debt- or), and benefits under a certain stock bonus, pension, profitsharing, annuity or similar plan based on illness, disability, death, age or length of service. Para graph (11) allows the debtor to exempt certain compensation for losses. These include crime victim’s reparation benefits, wrongful death benefits (with a reasonably necessary for support limitation), life insurance proceeds (same limitation), compensation for bodily injury, not including pain and suffering ($10,000 limitation), and loss of future earnings payments (support limitation). This provision in subparagraph (D)(ll) is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings. Those items are handled separately by the bill. H.R.Rep. No. 595, 95th Cong., 1st Sess. 362 (1977), reprinted, in 1978 U.S.Code Cong. & Ad.News, 5787, 6318. The Trustee argues that the future earnings exemption is intended to cover only losses of future earnings arising from actual bodily injury to the debtor. Several bankruptcy court decisions have interpreted" }, { "docid": "23639792", "title": "", "text": "of 11 U.S.C. § 522(d)(10)(E) is limited by a debtor’s right to receive payments under the plan, not to the present receipt of such payments. ... UNDER A STOCK BONUS, PENSION, PROFITSHARING, ANNUITY OR SIMILAR PLAN ... Of those states which allow debtors to take the federal exemptions under 11 U.S.C. § 522(d) only one court has denied an exemption for an IRA under 11 U.S.C. § 522(d)(10)(E) because the debtor exercised control of the IRA funds. In re Pauquette, 38 B.R. 170 (Bankr.D.Vt.1984). The Pauquette court held that the debtor’s individual retirement annuity was not exempt under 11 U.S.C. § 522(d)(10)(E). The court reasoned: The legislative history of section 522(d)(10)(E) speaks to “benefits akin to future earnings of the debtor.” House Report No. 95-595, 95th Cong., 1st Sess. 362 (1977), U.S.Code Cong. & Admin. News 1978, 5787, 6318. The intent is to ensure that such benefits are available for retirement purposes. The test which has developed to determine whether a contract provides benefits akin to future earnings is whether account funds may be used only for the purpose of providing retirement benefits to the contract holder or to his beneficiaries in the event of his death. The test is satisfied where account funds can be diverted to no other purpose than the retirement income of the contract holder: where access to the account funds can be achieved only upon the contract holder’s disability, death, or retirement; where future payments, distributions, or return of capital may not occur except as an incident of disability, death, termination of employment, or retirement. Alternatively, where account funds may be withdrawn at any time by the contract holder, even if any early withdrawal assessment is an incident of the early withdrawal, the courts have unanimously rejected a claim of exemption under § 522(d)(10)(E). Id. at 173-174. The Pauquette court cited the following cases for support: In re Clark, 711 F.2d 21 (3d Cir.1983); Matter of Berndt, 34 B.R. 515 (Bankr.N.D.Ind.1983); In re Lowe, 25 B.R. 86 (Bankr.D.S.C.1982); In re Howerton, 21 B.R. 621 (Bankr.N.D.Tex.1982); In re Talbert, 15 B.R. 536 (Bankr.W.D.La.1981); In re Mace," }, { "docid": "13927829", "title": "", "text": "of such debtor shall be entitled to the same treatment as those specified in subparagraphs (A) and (B) of this paragraph, provided that the exempt or nonexempt status of periodic payments from such a retirement or pension plan or system shall be as provided under subparagraph (E) of paragraph (2) of this subsection; O.C.G.A. § 44-13-100(a)(2)(E) and (a)(2.1) (Supp.1989). Debtor’s annuity fails to meet the exemption requirements of section 44-13-100(a)(2)(E). Debtor is not receiving payments from the annuity which are necessary for his or his dependent’s support. The facts show that the corpus of the annuity rather than periodic payments is in issue. Nor are the requirements of subsection (a)(2.1) met. The plan is maintained by UNUM, not by the State, its political subdivision, or Debtor’s employer. The facts do not show that UNUM is a nonprofit corporation. The plan is supported by Debtor’s funds, not by the State, Debtor’s employer, or any nonprofit organization. Section 44-13-100(a)(2.1)(C) provides that a debtor’s aggregate interest in certain retirement or pension plan funds held by the private sector are entitled to exemption if periodic payments from the plan meet the requirements of subsection (a)(2)(E). In In re Wommack, this Court noted that section 522(d)(10)(E) of the Bankruptcy Code is substantially similar to Georgia exemption subsection (a)(2)(E). Thus, the legislative history of section 522 and cases interpreting it may provide some guidance for the Court in its analysis of section 44-13-100(a)(2)(E). In In re Wom-mack, this Court stated: According to the legislative history of section 522, subsection (d)(10) is designed to allow a debtor to exempt benefits that are akin to future earnings. H.R.Rep. No. 595, 95th Cong., 1st Sess. 362, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6318. The standard used to determine whether a contract provides benefits akin to future earnings is “whether account funds may be used only for the purpose of providing retirement benefits.... ” In re Pauquette, 38 B.R. 170, 173 (Bankr.D.Vt.1984). In applying this standard, courts should consider the strictness of the restraints on withdrawal of funds for present, as opposed to future, needs. In re Pettit," }, { "docid": "10211869", "title": "", "text": "adopting O.R.C. § 2329.-66(A)(10)(b). The O.R.C. is virtually identical to the United States Bankruptcy Code § 522(d)(10)(E). The House Report on that section states: Paragraph (10) exempts certain benefits that are akin to future earnings of the debtor. These include social security, unemployment compensation, or public assistance benefits, veteran’s benefits, disability, illness, or unemployment benefits, alimony, support, or separate maintenance (but only to the extent reasonably necessary for the support of the debtor and any dependents of the debt- or), and benefits under a certain stock bonus, pension, profitsharing, annuity, or similar plan based on illness, disability, death, age or length of service. H.R. Rep. No. 595, 95th Cong., 1st Sess. 362 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News, 5787, 6318. It is clear from the House Report that the key phrase in determining what Congress intended to exempt is “akin to future earnings.” Therefore the court must examine each benefit plan to determine if the payments have the same characteristics as wages paid by the employer. Perhaps the most obvious element of wages is that they are paid for by the employer. The United States Court of Appeals in In the Matter of Johnson, 724 F.2d 1138, 11 BCD 950, 951, BLD 69789 (5th Cir.1984) had to decide if a tax deferred annuity was exempt from the bankruptcy estate under a Texas statute which provided an exemption for life insurance policies. One of the factors considered by that court was that the employee made the contributions to the annuity as opposed to the usual arrangement where the employer pays the benefits. In the present case the debtors in an individual capacity were responsible for making the payments to I.D.S. Another element considered by a number of courts as extremely important is the amount of control the debtor has over the funds. The concern over control is twofold. The court first notes that employees traditionally have no control over employers retirement plans and secondly they discuss the policy of preventing debtors from hiding assets from creditors. See In re Howerton, 21 B.R. 621, 9 BCD 296 (Bankr.N.D.Tx.1982), In re" }, { "docid": "8345892", "title": "", "text": "the Debtors of whether the subject annuity is exempt under North Dakota Century Code § 28-22-03.1(3) as an “annuity” under § 28-22-03.l(4)(b) as a payment on account of personal bodily injury. 2. The Debtor asserts that the annuity is exempt under the provisions of North Dakota Century Code § 28-22-03.1(3) which provides in part: (3). Pensions: annuity policies or plans; life insurance policy which upon the death of the insured would be payable to a spouse ...; investment retirement accounts (IRA’s); Keogh’s and simplified employee benefit plans_ N.D. Cent.Code § 28-22-03.1(3). (Emphasis added). In contrast North Dakota Century Code § 28-22-03.1(4)(b) provides that a debtor may exempt: a payment, not to exceed $7,500.00, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debt- or is a dependent. N.D.Cent.Code § 28-22-03.1(4)(b). The North Dakota exemption statutes have adopted almost identical language to the corresponding Federal Bankruptcy Code provisions. However, section 28-22-03.-1(3) does not contain language requiring “annuities” to bear a relationship to illness, age, disability, etc. as does the federal exemption of section 522(d)(10)(E); However, both the Bankruptcy Code and the North Dakota statute deals with pensions and similar instruments. In deciding the issue of whether a structured tort settlement annuity may be exempted under North Dakota Century Code 28-22-03.1(3) the case of In re Simon, 71 B.R. 65 (Bankr.N.D.Ohio 1987), is instructive. In Simon, the debtor attempted to exempt annuity payments of a structured tort settlement agreement between the debtor and an insurance company under an Ohio exemption statute similar in nature to North Dakota Century Code § 28-22-03.1(3). A creditor bank in Simon objected to this exemption and claimed that the annuity should be exempt under an Ohio exemption dealing with payments on account of personal bodily injury. Id. The Ohio bankruptcy court reasoned that the term “annuity” as used in the Ohio statute, which is akin to the federal exemption in section 522(d)(10)(E) and similar to N.D.Cent.Code § 28-22-03.1(3) deals with retirement, unemployment compensation, alimony, disability payments, and things of that" }, { "docid": "8318202", "title": "", "text": "that are akin to future earnings of the debtor. These include social security, unemployment compensation, or public assistance benefits, veteran’s benefits, disability, illness, or unemployment benefits, alimony, support, or separate maintenance (but only to the extent reasonably necessary for the support of the debtor and any dependents of the debt- or), and benefits under a certain stock bonus, pension, profitsharing, annuity, or similar plan based on illness, disability, death, age or length of service. H.R. Rep. no. 595, 95th Cong., 1st Sess. 362 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News, 5787, 6318. Unfortunately, no court has considered the applicability of this corresponding federal statute, § 522(d)(10)(E), to a structured tort settlement funded by an annuity. Although both exemption statutes use the word “annuity”, it must be considered within the context of the provision. That provision, § 2329.66(A)(10)(b) for Ohio and § 522(d)(10)(E) in the federal statute, deals with retirement, unemployment compensation, alimony, disability payments and things of that nature. “That nature” being payments which are “akin to future earnings of the debtor”. House Report, supra. Notably, the sources of the listed exempt payments are chiefly an employer, former spouse, or a government entity. Consequently, an examination of the provision leads to the inference that an annuity which is merely in settlement of a tort suit was not contemplated by the drafters. It appears they were concerned mainly with annuities as used in retirement and disability planning. Moreover, an examination of the second section under which the Debtor claims exemption, § 2329.66(A)(12)(c), which corresponds to § 522(d)(ll)(D), finds a much more specific exemption for payments compensating the debtor for “personal bodily injury”. Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision. 73 Am.Jur.2d Statutes § 257. This rule of statutory construction is of equal importance in considering the intent behind" }, { "docid": "23639790", "title": "", "text": "the basis that the pension plans in question were not reasonably necessary for the support of the debtor. Unlike the Court of Appeals in Clark, this Court finds ample concern for the Debtor’s long term security in the statute, the legislative history and the decisions of other courts. Both the subject of the statute (i.e., stock bonuses, pensions, profit-sharing plans and annuities) and the purpose of the statute (i.e., exemptions for the basic necessities) look to the future. Even the legislative history speaks of the future when it states: “Paragraph (10) exempts certain benefits that are akin to future earnings of the debtor.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 362 (1977), U.S. Code Cong. & Admin.News 1978, pp. 5787, 6318. Other courts have also found that Congress intended to look to the debtor’s future needs as well as the debtor’s current needs. In re Miller, 33 B.R. 549 (Bankr.D.Minn.1983); In re Sheridan, 38 B.R. 52 (Bankr.D.Vt.1983); In re Flygstad, 56 B.R. 884 (Bankr.N.D.Iowa 1986); In re Grant, 40 B.R. 612 (Bankr.N.D.Tex.1984); and Matter of Boon, 90 B.R. 988 (Bankr.W.D.Mo.1987). While the present-tense wording of the statute may lead some courts to conclude that a debtor must presently be receiving pension payments to qualify for an exemption under 11 U.S.C. § 522(d)(10)(E), this Court believes that such an inference is not based upon the plain meaning of the statute. 11 U.S.C. § 522(d)(10)(E) does not explicitly require the debtor to begin receiving payments at the time the petition is filed. In fact, with the language “right to receive a payment under a stock bonus, pension, profitsharing, annuity, or similar plan” (emphasis added), 11 U.S.C. § 522(d)(10)(E) explicitly leaves the timing of payments to the terms of the debtor’s plan. Furthermore, pension plans typically give participants a right to receive payment before they actually begin to receive payments. This concept is called vesting. Accordingly, this Court disagrees with those courts which limit the scope of 11 U.S.C. § 522(d)(10)(E) to those funds which a debt- or is presently receiving under a stock bonus, pension, profitsharing, annuity or similar plan; the scope" }, { "docid": "18797362", "title": "", "text": "stock bonus, pension, profitsharing, annuity or similar plan based on illness, disability, death, age or length of service. Para graph (11) allows the debtor to exempt certain compensation for losses. These include crime victim’s reparation benefits, wrongful death benefits (with a reasonably necessary for support limitation), life insurance proceeds (same limitation), compensation for bodily injury, not including pain and suffering ($10,000 limitation), and loss of future earnings payments (support limitation). This provision in subparagraph (D)(ll) is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings. Those items are handled separately by the bill. H.R.Rep. No. 595, 95th Cong., 1st Sess. 362 (1977), reprinted, in 1978 U.S.Code Cong. & Ad.News, 5787, 6318. The Trustee argues that the future earnings exemption is intended to cover only losses of future earnings arising from actual bodily injury to the debtor. Several bankruptcy court decisions have interpreted the future earnings exemption in this manner. See, In re Phillips, 45 B.R. at 531; In re Simon, 71 B.R. 65, 67 (Bankr.N.D.Ohio 1987). These courts find support for this interpretation of the future earnings exemption from the following language of the House Report which was quoted above: “This provision in subparagraph (D)(ll) is designed to cover payments in compensation of actual bodily injury, such as loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings.” (Emphasis added). Based upon its careful research of this question, the Court is inclined to disagree with the interpretation of the future earnings exemption urged by the Trustee and followed by the Phillips and Simon courts. First, the Trustee’s reading of the future earnings exemption ignores the plain wording of the statute. On their face, neither O.R.C. § 2329.66 nor 11 U.S.C. § 522(d)(ll)(E) restrict the scope of the exemption to lost future earnings resulting from bodily injury. Second, the" }, { "docid": "4450461", "title": "", "text": "that paragraph with 11 U.S.C. § 522(d)(10)(E), the federal provision on which paragraph (2)(E) was modeled, reveals that § 522(d)(10(E) allows additional exemptions for payments under stock bonus and profit sharing plans. The deliberate exclusion of such plans from the Georgia statute suggests that any interpretation of “similar plan or contract” under (2)(E) should be narrowly construed and limited to those containing the characteristics of pensions and annuities. One of the key characteristics of both a pension and annuity is regularity of payment. Black’s Law Dictionary 1021 (5th ed. 1979) defines pension as a “Retirement benefit paid regularly (normally, monthly) with the amount of such based generally on length of employment and amount of wages or salary of pensioner.” Annuity is defined as “[a] right to receive fixed, periodic payments, either for life or a term of years.” Black’s, supra, p. 82. Partially in recogni tion of this fact, cases interpreting similar state laws and § 522(d)(10)(E) have held that an IRA is not a “similar plan” to a pension or annuity because “annuities and pensions contemplate only future periodic payments whereas an IRA is payable in a lump sum.” See In re Herbert, 140 B.R. 174 (Bankr.N.D.Ohio 1992) (quoting In re Spandorf, 115 B.R. 415, 416 (Bankr.D.Conn.1990) and citing In re Innis 62 B.R. 659, 660 (Bankr.S.D.Cal.1986); In re Gillett, 46 B.R. 642, 643-44 (Bankr.S.D.Fla.1985); In re Fichter, 45 B.R. 584, 537-38 (Bankr.N.D.Ohio 1984); In re Peeler, 37 B.R. 517, 518 (Bankr.M.D.Tenn.1984)). The purpose of § 522(d)(10)(E) is to allow the debtor to exempt benefits which are “akin to future earnings” and which will provide for the debtor when met with circumstances that would inhibit or preclude his wage earning ability. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 362, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6318; 11 U.S.C. § 522(d)(10). Periodic payment plans such as pensions and annuities fulfill that purpose by assuring the debt- or/benefieiary of a future stream of income to compensate for the loss of or reduction in earnings after retirement, disability or illness. At the same time the exemption acknowledges the" }, { "docid": "8345894", "title": "", "text": "nature. The Simon court stated that considering the exemption statute as a whole “an annuity which is merely in settlement of a tort suit was not contemplated by the drafters. It appears they were concerned mainly with annuities as used in retirement and disability planning.” Id. In addition, the Simon court found that the exemption statute covering personal bodily injury was more specific and therefore, the tort settlement should be covered by that exemption. Id. Therefore, the Simon court concluded that the only section under which the debtor could exempt the tort settlement annuity was the section concerning personal bodily injury. Id. at 67. The court’s reasoning in Simon may be applied to the instant case. It is true that North Dakota Century Code § 28-22-03.1(3) uses the word “annuity”, however, it must be considered within the context of the entire provision. Section 28-22-03.1(3) as does the federal exemption [section 522(d)(10)(E) ] deals with pensions, life insurance, individual retirement accounts (IRA), Keogh Plans, employee pensions, and things of that nature. The type of instruments are mainly concerned with retirement or death. Therefore, it is reasonable to infer that the North Dakota legislature intended for “annuities” in the context of retirement instruments be exempted, not annuities based upon tort settlements. A similar result was reached in the Fifth Circuit decision of Young v. Adler, 806 F.2d 1303 (5th Cir.1987). In Young, a debtor attempted to exempt annuity payments from a structured tort settlement agreement. Id. at 1305. The Fifth Circuit concluded that the structured tort settlement agreement was more in the nature of an “accounts receivable” than an annuity as contemplated in the exemption statute. Id. The court in Young defined an annuity as a right to receive fixed periodic payments either for life or for a term of years. Id. at 1306. In contrast, the Young court defined an accounts receivable as a “claim against a debtor usually arising from sales or services rendered.” Id. The Young court further described the difference between an annuity and an accounts receivable by stating: Its [annuities] determining characteristic is that the annuitant has" }, { "docid": "10215221", "title": "", "text": "court stated: While the present-tense wording of the statute may lead some courts to conclude that a debtor must presently be receiving pension payments to qualify for exemption under 11 U.S.C. § 522(d)(10)(E), this Court believes that such an inference is not based upon the plain meaning of the statute. 11 U.S.C. § 522(d)(10)(E) does not explicitly require the debtor to begin receiving payments at the time the peti tion is filed. In fact, with the language “right to receive a payment under a stock bonus, pension, profitsharing, annuity, or similar plan” (emphasis added), 11 U.S.C. § 522(d)(10)(E) explicitly leaves the timing of payments to the terms of the debtor’s plans. In re Cilek, 115 B.R. at 979. This Court agrees with the reasoning advanced by the Cilek court and, therefore, overrules the objections based upon this argument. With respect to the second argument, in In re Chiz, supra, the United States Bankruptcy Court for the District of Massachusetts agreed with the court in Cilek and held that an IRA is a “similar plan” under § 522(d)(10)(E). The court found that Congress considered IRA’s to be “in the same general category as other retirement plans” and “envisioned that the funds would be accumulated during normal working years and enjoyed during normal retirement years.” Id. at 592 and 593. The court noted that IRA’s enjoy similar tax benefits as pensions, profit sharing, and stock bonus plans and, subject to some limitations, a taxpayer’s deposit into an IRA is tax deductible, unlike a savings account. The court further noted that IRA’s accumulate interest tax free, and disbursements from them are taxed as an annuities. Id. at 592-593. The court stated Legislative history points in the same direction. The House Report tells us that “[pjaragraph (10) exempts certain benefits that are akin to future earnings of the Debtor.” H.R.Rep. 595, 95th Cong., 1st Sess. 362 (1977), U.S.Code Cong. & Admin.News 1987, 6318. Because of the tax restrictions on IRA’s, distributions from them are as “akin to future earnings” as are distributions from pension or profit sharing plans. Id. at 593. Indeed the Cilek" }, { "docid": "23639789", "title": "", "text": "and a public charge. [This] purpose has not changed.... H.R.Rep. No. 595, 95th Cong., 1st Sess. 126 (1977) reprinted in 1978 U.S.Code Cong. & Ad.News, 5787, 5963, 6087. The exemption of present Keogh payments, to the extent they are necessary for the support of the debtor, is consistent with this goal. The exemption of future payments, however, demonstrates a concern for the debtor’s long term security which is absent from the statute. Id. For support, the Court of Appeals in Clark cited In re Mendenhall, 4 B.R. 127 (Bankr.D.Or.1980), In re Richard Dale Clark, 18 B.R. 824 (Bankr.E.D.Tenn.1982), and Matter of Kochell, 26 B.R. 86 (Bankr.W.D.Wis.1982). This Court finds no support in the cases cited by the Court of Appeals in Clark for a rule which denies exemptions under 11 U.S.C. § 522(d)(10)(E) unless the debtor is receiving payments at the time of filing. In re Mendenhall, supra, was decided under the Bankruptcy Act; In re Richard Dale Clark, supra, was decided under the Tennessee exemption statute; and Matter of Kochell, supra, was decided on the basis that the pension plans in question were not reasonably necessary for the support of the debtor. Unlike the Court of Appeals in Clark, this Court finds ample concern for the Debtor’s long term security in the statute, the legislative history and the decisions of other courts. Both the subject of the statute (i.e., stock bonuses, pensions, profit-sharing plans and annuities) and the purpose of the statute (i.e., exemptions for the basic necessities) look to the future. Even the legislative history speaks of the future when it states: “Paragraph (10) exempts certain benefits that are akin to future earnings of the debtor.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 362 (1977), U.S. Code Cong. & Admin.News 1978, pp. 5787, 6318. Other courts have also found that Congress intended to look to the debtor’s future needs as well as the debtor’s current needs. In re Miller, 33 B.R. 549 (Bankr.D.Minn.1983); In re Sheridan, 38 B.R. 52 (Bankr.D.Vt.1983); In re Flygstad, 56 B.R. 884 (Bankr.N.D.Iowa 1986); In re Grant, 40 B.R. 612 (Bankr.N.D.Tex.1984); and Matter of" }, { "docid": "13927830", "title": "", "text": "are entitled to exemption if periodic payments from the plan meet the requirements of subsection (a)(2)(E). In In re Wommack, this Court noted that section 522(d)(10)(E) of the Bankruptcy Code is substantially similar to Georgia exemption subsection (a)(2)(E). Thus, the legislative history of section 522 and cases interpreting it may provide some guidance for the Court in its analysis of section 44-13-100(a)(2)(E). In In re Wom-mack, this Court stated: According to the legislative history of section 522, subsection (d)(10) is designed to allow a debtor to exempt benefits that are akin to future earnings. H.R.Rep. No. 595, 95th Cong., 1st Sess. 362, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6318. The standard used to determine whether a contract provides benefits akin to future earnings is “whether account funds may be used only for the purpose of providing retirement benefits.... ” In re Pauquette, 38 B.R. 170, 173 (Bankr.D.Vt.1984). In applying this standard, courts should consider the strictness of the restraints on withdrawal of funds for present, as opposed to future, needs. In re Pettit, 61 B.R. 341, 348, 14 Collier Bankr.Cas.2d 1111, 1118 (Bankr.W.D.Wash.1986); In re Pauquette, 38 B.R. at 174. 80 B.R. at 580. The Court notes that the test for exemp-tibility focuses on the terms and restrictions governing the administration of the annuity plan. Id. Under the annuity plan, Debtor can voluntarily withdraw the proceeds at any time. The Court previously noted that certain withdrawal and tax consequences may result from pre-retirement withdrawals. The Court, however, believes that the annuity does not meet the requirements of section 44-13-100(a)(2)(E). Debtor states that he will suffer an undue hardship if Trustee seizes the funds because Debtor will be taxed on the withdrawal. Trustee, however, concedes that he, and not Debtor, will have to pay certain taxes on the withdrawal and stands ready to do so. See In re Kochell, 804 F.2d 84 (7th Cir.1986). Finally, Trustee contends that the annuity plan does not qualify for exclusion' from property of the estate as a spendthrift trust. Section 541(c)(2) of the Bank ruptcy Code provides: “(2) A restriction on the transfer" }, { "docid": "23639791", "title": "", "text": "Boon, 90 B.R. 988 (Bankr.W.D.Mo.1987). While the present-tense wording of the statute may lead some courts to conclude that a debtor must presently be receiving pension payments to qualify for an exemption under 11 U.S.C. § 522(d)(10)(E), this Court believes that such an inference is not based upon the plain meaning of the statute. 11 U.S.C. § 522(d)(10)(E) does not explicitly require the debtor to begin receiving payments at the time the petition is filed. In fact, with the language “right to receive a payment under a stock bonus, pension, profitsharing, annuity, or similar plan” (emphasis added), 11 U.S.C. § 522(d)(10)(E) explicitly leaves the timing of payments to the terms of the debtor’s plan. Furthermore, pension plans typically give participants a right to receive payment before they actually begin to receive payments. This concept is called vesting. Accordingly, this Court disagrees with those courts which limit the scope of 11 U.S.C. § 522(d)(10)(E) to those funds which a debt- or is presently receiving under a stock bonus, pension, profitsharing, annuity or similar plan; the scope of 11 U.S.C. § 522(d)(10)(E) is limited by a debtor’s right to receive payments under the plan, not to the present receipt of such payments. ... UNDER A STOCK BONUS, PENSION, PROFITSHARING, ANNUITY OR SIMILAR PLAN ... Of those states which allow debtors to take the federal exemptions under 11 U.S.C. § 522(d) only one court has denied an exemption for an IRA under 11 U.S.C. § 522(d)(10)(E) because the debtor exercised control of the IRA funds. In re Pauquette, 38 B.R. 170 (Bankr.D.Vt.1984). The Pauquette court held that the debtor’s individual retirement annuity was not exempt under 11 U.S.C. § 522(d)(10)(E). The court reasoned: The legislative history of section 522(d)(10)(E) speaks to “benefits akin to future earnings of the debtor.” House Report No. 95-595, 95th Cong., 1st Sess. 362 (1977), U.S.Code Cong. & Admin. News 1978, 5787, 6318. The intent is to ensure that such benefits are available for retirement purposes. The test which has developed to determine whether a contract provides benefits akin to future earnings is whether account funds may be used" }, { "docid": "8345895", "title": "", "text": "mainly concerned with retirement or death. Therefore, it is reasonable to infer that the North Dakota legislature intended for “annuities” in the context of retirement instruments be exempted, not annuities based upon tort settlements. A similar result was reached in the Fifth Circuit decision of Young v. Adler, 806 F.2d 1303 (5th Cir.1987). In Young, a debtor attempted to exempt annuity payments from a structured tort settlement agreement. Id. at 1305. The Fifth Circuit concluded that the structured tort settlement agreement was more in the nature of an “accounts receivable” than an annuity as contemplated in the exemption statute. Id. The court in Young defined an annuity as a right to receive fixed periodic payments either for life or for a term of years. Id. at 1306. In contrast, the Young court defined an accounts receivable as a “claim against a debtor usually arising from sales or services rendered.” Id. The Young court further described the difference between an annuity and an accounts receivable by stating: Its [annuities] determining characteristic is that the annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be derived. The purchaser of an annuity surrenders all right and title in and to the money he pays for it. On the other hand, where a debtor agrees to pay his creditor in installments at regular intervals, the debt or principal sum itself is due to the creditor although payable only in the manner agreed upon; it is an account receivable in which he has a property interest. Therefore, installment payments of a debt, or payments of interest on a debt, do not constitute an annuity. Id. at 1307. The structured settlement agreement between Ms. Johnson and the insurance company created a debtor-creditor relationship. The insurance company has agreed to pay Ms. Johnson a sum of money over time. The fact that the settlement agreement is funded by an annuity, bears little relevance in this debtor-creditor relationship. For example, if the annuity contract were to go in default, Ms. Johnson would still have a right" }, { "docid": "8318201", "title": "", "text": "that there should be a general rule of liberality. In effect, when there is a doubt as to the intent of the statute, the interpretation should be construed in favor of the debtor. In re Everhart, 11 B.R. 770 (Bankr. N.D.Ohio 1981); Butz v. Jordan, 3 B.C.D. 888 (S.D. Ohio 1977). On the other hand, the amendments to the Ohio exemption statute have adopted almost identical language to the corresponding federal Bankruptcy Code provisions. These amendments include the exemptions in question in this case. Since there is neither Ohio case law, nor Ohio legislative history concerning the issue before the Court, the Court will look to the intent of Congress when enacting the earlier legislation. From this, the Court may logically infer the intent of the State Legislature in adopting almost identical language. In re Phillips, 45 B.R. 529, 531 (Bankr. N.D.Ohio 1984); Matter of Osburn, 56 B.R. 867, 875 (Bankr. S.D.Ohio 1986). The intent of the drafters of 11 U.S.C. 522(d)(10)(E) is presented in the House Report which states: Paragraph (10) exempts certain benefits that are akin to future earnings of the debtor. These include social security, unemployment compensation, or public assistance benefits, veteran’s benefits, disability, illness, or unemployment benefits, alimony, support, or separate maintenance (but only to the extent reasonably necessary for the support of the debtor and any dependents of the debt- or), and benefits under a certain stock bonus, pension, profitsharing, annuity, or similar plan based on illness, disability, death, age or length of service. H.R. Rep. no. 595, 95th Cong., 1st Sess. 362 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News, 5787, 6318. Unfortunately, no court has considered the applicability of this corresponding federal statute, § 522(d)(10)(E), to a structured tort settlement funded by an annuity. Although both exemption statutes use the word “annuity”, it must be considered within the context of the provision. That provision, § 2329.66(A)(10)(b) for Ohio and § 522(d)(10)(E) in the federal statute, deals with retirement, unemployment compensation, alimony, disability payments and things of that nature. “That nature” being payments which are “akin to future earnings of the debtor”. House Report," } ]

[ { "docid": "9785276", "title": "", "text": "marketing the Resort’s video viewing system to other hotels. We note that PRE did not need formal discovery procedures to establish resulting antitrust injury to the resort or to ascertain the basis for other hotels’ rejection of Irwin’s video system. We reject PRE’s argument that Kenneth Irwin’s declaration provides an initial showing of the injury element. Irwin’s affidavit does not satisfy the requirements of Fed.R.Civ.P. 56(e). The affidavit states in relevant part: I had attempted to develop a market for the sale and installation of video disc player equipment to other hotels for private, in-room, movie viewing. As an RCA representative, I had contacted other hotels in an attempt to install video disc player equipment using the in-room video technology employed at our La Mancha facility. I believe that hotels were reluctant to invest in in-room video viewing systems out of fear of litigation with the counter defendant movie studios. I believe further that larger chains, in particular, were reluctant to make a substantial investment in video technology absent a license from the movie studios. Because Irwin’s declaration is not based on personal knowledge, but on information and belief, his statement does not raise a triable issue of fact regarding antitrust injury. See Taylor v. List, 880 F.2d 1040, 1045 n. 3 (9th Cir.1989). 2. Noerr-Pennington If the bringing of Columbia’s copyright infringement suit violated the antitrust laws, however, the costs of defending the suit would constitute antitrust injury. Rickards, 783 F.2d at 1334-35. We therefore address PRE’s claim that the infringement suit itself violated the antitrust laws. Under the Noerr-Penninaton doctrine, the filing of a lawsuit is immune from the antitrust laws unless the suit is a “sham.” California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972). A sham suit is one that is an abuse of the judicial processes. Id. at 513, 92 S.Ct. at 613. In California Transport, the Supreme Court identified two types of sham activity: “misrepresentations ... in the adjudicatory process” and the pursuit of “a pattern of baseless, repetitive claims.” Id. Thus, in California" } ]

[ { "docid": "22986656", "title": "", "text": "the record.”) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir.1993)). Plaintiff claims that evidence supports the fact that Davis had his hands raised when he stopped the car in the cul-de-sac. Plaintiff claims that evidence supports the fact that Davis posed no threat of serious physical harm to the officers when he was shot. The evidence pointed to for support of both of Plaintiffs alleged additional facts is an affidavit by Willie Hedge (“Hedge”), a witness to the events that occurred in the cul-de-sac. i. According to that affidavit, Hedge, from the front porch of his house on the cul-de-sac, “observed motion in the red car which I believe was [Davis] raising his hands towards the roof of his car in an attempt to surrender.” The district court concluded that this statement was sufficient to create an issue of fact about whether Davis’s hands were in the air. We disagree. The Rules are clear: “Supporting and opposing affidavits shall be made on personal knowledge.” Fed.R.Civ.P. 56(e) (emphasis added). Rule 56(e)’s personal knowledge requirement prevents statements in affidavits that are based, in part, “upon information and belief’ — instead of only knowledge — from raising genuine issues of fact sufficient to defeat summary judgment. See Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir.2000) (“upon information and belief’ insufficient); Fowler v. Southern Bell Tel. and Tel. Co., 343 F.2d 150, 154 (5th Cir.1965) (“knowledge, information and belief’ insufficient); Robbins v. Gould, 278 F.2d 116, 118 (5th Cir.1960) (“knowledge and belief’ insufficient). Likewise, an affidavit stating only that the affiant “believes” a certain fact exists is insufficient to defeat summary judgment by creating a genuine issue of fact about the existence of that certain fact. Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949) (“Belief, no matter how sincere, is not equivalent to knowledge.”); see also Tavery v. United States, 32 F.3d 1423, 1426 n. 4 (10th Cir.1994); Hansen v. Prentice-Hall, Inc., 788 F.2d 892, 894 (2d Cir.1986). Even if the affidavit is otherwise based upon personal knowledge (that is, includes a blanket statement within" }, { "docid": "19016767", "title": "", "text": "rule further specifies that: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, 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. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). Thus, a party cannot overcome a motion for summary judgment based on an averment prefaced “on information and belief.” Such a statement must be disregarded for summary judgment purposes, as it fails to comply with Rule 56(e). Automatic Radio Mfg. Co., Inc. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950); Lowe v. Philadelphia Newspapers, Inc., 594 F.Supp. 123, 126 (E.D.Pa.1984). In the instant case, the Government has presented persuasive evidence suggesting that an employee at the deli accepted food stamps in exchange for cash. The declarations of Inspector Wade set forth the circumstances surrounding the alleged transactions in precise detail. In attempting to overcome the summary judgment motion, Mr. Tziatzios swears that, to the best of his knowledge, no employee ever trafficked in food stamps. As we have discussed above, however, an affidavit predicated “on information and belief’ is insufficient to create a genuine dispute for trial. Accordingly, since there is no genuine dispute as to whether a deli employee accepted food stamps in exchange for cash, we must grant the Government’s motion. An appropriate order follows. ORDER AND NOW, this 30th day of January, 1996, upon consideration of Defendants’ Motion for Summary Judgment, and Plaintiffs Response thereto, it is hereby ORDERED that said Motion is GRANTED." }, { "docid": "7885045", "title": "", "text": "on ‘information and belief’, are not sufficient to create a genuine issue of fact.” Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.1978); accord Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988) (“Because there is no way to ascertain which portions of [the] affidavit were based on personal knowledge, as opposed to information and belief, the affidavit is insufficient under Rule 56.”); Orlik Ltd. v. Helme Products Inc., 427 F.Supp. 771, 778 (S.D.N.Y.1977) (“[Defendants’ affidavit is submitted only upon information and belief. Thus, it fails to satisfy Rule 56(e) ... which requires affidavits to be made ‘on personal knowledge.’ ”). Rule 56(e), Fed.R. Civ.P., states: Supporting and opposing 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 ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, 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. Plaintiff Rosenberg’s affidavit is couched in conclusory language, without any quantification of “saturation” or any proof that defendants flooded the market with prepackaged pints of ice cream, other than the fact that his Kenmore Square Shop was a failure. Affidavits which are “generalized, conclusory and unsubstantiated ... are insufficient to create a genuine factual dispute.” Citizens Environmental Council v. Volpe, 484 F.2d 870, 873 (10th Cir.1973), cert. denied, Citizens Environmental Council v. Brinegar, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974). “Nor may a party rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Insurance Company, 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). Even if plaintiff could show that there was" }, { "docid": "22986657", "title": "", "text": "personal knowledge requirement prevents statements in affidavits that are based, in part, “upon information and belief’ — instead of only knowledge — from raising genuine issues of fact sufficient to defeat summary judgment. See Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir.2000) (“upon information and belief’ insufficient); Fowler v. Southern Bell Tel. and Tel. Co., 343 F.2d 150, 154 (5th Cir.1965) (“knowledge, information and belief’ insufficient); Robbins v. Gould, 278 F.2d 116, 118 (5th Cir.1960) (“knowledge and belief’ insufficient). Likewise, an affidavit stating only that the affiant “believes” a certain fact exists is insufficient to defeat summary judgment by creating a genuine issue of fact about the existence of that certain fact. Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949) (“Belief, no matter how sincere, is not equivalent to knowledge.”); see also Tavery v. United States, 32 F.3d 1423, 1426 n. 4 (10th Cir.1994); Hansen v. Prentice-Hall, Inc., 788 F.2d 892, 894 (2d Cir.1986). Even if the affidavit is otherwise based upon personal knowledge (that is, includes a blanket statement within the first few paragraphs to the effect that the affiant has “personal knowledge of the facts set forth in th[e] affidavit”), a statement that the affiant believes something is not in accordance with the Rule. See Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.1978) (equating “I understand” statement in affidavit to inadmissible “I believe” statements and concluding that statement is inadmissible despite general averment to personal knowledge at beginning of affidavit). The district court’s treatment of the “believe” portion of Hedge’s statement in his affidavit — that Hedge “observed motion in the red car which I believe was [Davis] raising his hands towards the roof of his car in an attempt to surrender” — as sufficient to create a fact issue about raised hands was error. ii. According to the Hedge affidavit: “At no time did [Hedge] observe that the driver of the red car tried to run the deputies over. At no time did [Hedge] observe the driver of the red car aim his vehicle at the deputies. At no" }, { "docid": "15894431", "title": "", "text": "Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir.1995) (“Of course, had the Banks put in any evidence of substance, summary judgment might have been averted. But the Banks’ response to Pahlavi’s evidence was information and belief declarations from their counsel. Those were entitled to no weight because the declarant did not have personal knowledge”); Taylor v. List, 880 F.2d 1040, 1046 n. 3 (9th Cir.1989) (“One of the affidavits submitted by Taylor contained a statement to the effect that the affiant was informed and believed that Belleville was involved in depriving Taylor of access to law clerks and law books. The statement does not raise a triable issue regarding Belleville’s involvement. To raise such an issue, the statement would have to be made on personal knowledge, not information and belief. Fed.R.Civ.P. 56(e)”); Heighley v. J.C. Penney Life Ins. Co., 257 F.Supp.2d 1241, 1251 (C.D.Cal.2003) (“Declarations on information and belief are insufficient to establish a factual dispute for purposes of summary judgment”). The mere fact that the declarants “use ... the magic words T believe,’ ” however, does not automatically render their testimony inadmissible. Rather, the question is whether their statements “lack[] the requisite proof of personal knowledge.” Slade v. Baca, 70 Fed.Appx. 446, 449 (9th Cir. July 8, 2003) (Unpub. Disp.). Personal knowledge can be inferred from a declarant’s position within a company or business. See In re Kaypro, 218 F.3d 1070, 1075 (9th Cir.2000) (“Personal knowledge may be inferred from a declarant’s position,” citing Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d 1322, 1330 (9th Cir.2000)); Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir.1990) (concluding that a CEO’s personal knowledge of various corporate activities could be presumed). Each of the declarants occupies a position at Toys from which personal knowledge of the facts to which he testifies can be inferred. Rooney has been Toys’ Chief Information Officer since 2006. Plaintiffs argue that Rooney has no personal knowledge of payment card industry standards or the software upgrades at issue; his position as CIO, however, raises an inference of personal knowledge. See Morgan" }, { "docid": "15567617", "title": "", "text": "a legal opinion or predicts the future. Those facts alleged on “understanding” like those based on “belief” or on “information and belief”, are not sufficient to create a genuine issue of fact. Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); State of Washington v. Maricopa County, 143 F.2d 871 (9th Cir. 1944), cert. den. 327 U.S. 799, 66 S.Ct. 900, 90 L.Ed. 1024. If Mr. Norden gained knowledge through business records or post trial discovery that Digital’s assets had all been seized by the I.R.S., he should have attached copies of the “papers or parts thereof referred to” in his affidavit so as to properly support his conclusion. It was Avpak’s duty to show affirmatively that the affiant was competent to testify about Digital’s financial status; all we have here is a bare assertion. The lower court nó doubt concluded that Mr. Norden’s bare assertions were not competent evidence under the circumstances or that he was not competent to testify as to the contents of such documents even though he may have been able to lay the foundation for their admission. The mere fact that a single check bounced does not create an inference that Digital could not have paid the C.O.D. price. Neither does the fact (even if we could consider it such) that the I.R.S. has seized all of Digital’s assets. Again, this is a bare unsupported assertion. Further, I.R.S. seizure does not warrant a conclusion that none of the such seized assets will be returned. While all doubt must be resolved in favor of the party opposing the motion for summary judgment, e. g., Daike v. Upjohn Co., 555 F.2d 245 (9th Cir. 1977), there was not sufficient evidence before the Judge for us to say that he should have had a doubt as to the ability of Digital to pay the C.O.D. sum. The trial Court was correct in the disposition of this issue. There was some evidence that the goods were defective; however, the rule stated in Mogul, even if we were to follow it," }, { "docid": "17751024", "title": "", "text": "1033, 108 S.Ct. 1592, 99 L.Ed.2d 907 (1988), the Ninth Circuit affirmed judgment for the government under § 6103 on the grounds that \"section 6103 applies only to information filed with and disclosed by the IRS, and Stok-witz’ tax returns were not obtained directly or indirectly from the IRS.” Nevertheless, it is clear that a United States officer or employee may violate the statute by disclosing return information, previously released by the IRS, even if the information was not received from the IRS directly. Section 6103(a) (\"[N]o officer or employee of the United States, ... shall disclose any return or return information obtained by him in any manner [.]”) (emphasis added); Stokwitz, 831 F.2d at 896 n. 4 (“Section 6103 applies to all who receive information from the IRS, directly or indirectly.\") (emphasis added). Thus, Mr. Stef-fan’s statement in paragraph 3 of his affidavit cannot support summary judgment for the government. We note a further statement in paragraph 12 of Mr. Steffan's affidavit to the effect that “I do not believe that the Internal Revenue Service was the source of the information regarding Ms. Tavery’s income, occupation or tax refunds.” While this statement does deal with the proscription of § 6103(a) against release of return information by the IRS, it is a mere statement of belief and therefore is insufficient to support summary judgment on the source of disclosure issue. Under Fed.R.Civ.P. 56(e), only statements “made on personal knowledge” will support a motion for summary judgment; statements of mere belief must be disregarded. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950) (affidavit in support of motion for summary judgment made on information and belief does not comport with Rule 56(e)); see also Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949) (\"Belief, no matter how sincere, is not equivalent to knowledge.”); Carey v. Beans, 500 F.Supp. 580, 583 (E.D.Pa.1980) (on summary judgment, \"statements [in an affidavit] prefaced by the phrases ‘I believe’ or 'upon information and belief' or those made upon an 'understanding' ... are properly subject to a motion" }, { "docid": "23524368", "title": "", "text": "Kie-wit proposals should be submitted for action of the stockholders. At the October 31 meeting of stockholders the plan of liquidation was adopted, Newhouse’s offer was rejected, and Kiewit’s offer was unanimously accepted. The recitation in Neff’s affidavit heretofore referred to, concerning the alleged approval of the Newhouse contract by 70% of the stockholders, does not purport to be based on personal knowledge. The statements involved are prefaced by such words as “I have also ascertained that * * * ”, “I have found through my attorney’s examination of documents in the possession of Barton H. Kuhns that * * * «i have ajso ascertained through such investigation that * * ”, and “it satisfactorily appears that * * * Such assertions by Neff, totally unsupported by the record and based upon matters beyond his personal knowledge, constituting his conclusions or based upon his interpretation of written documents, and having no probative value, are patently legally frivolous and insufficient to create a genuine issue of material fact within the purview of Rule 56. Rule 56(e), F.R.C.P., provides, inter alia, that “Supporting and opposing 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”. ■ (Emphasis added.) Therefore, in determining whether summary judgment is proper, statements contained in affidavits, which would be inadmissible in evidence (such as statements of opinion, belief and hearsay) must be disregarded. See: Barron & Holtzoff, Federal Practice and Procedure, Vol. 3, Section 1237; United States of America for use of Kolton et al. v. Halpern et al., 3 Cir., 260 F.2d 590; Automatic Radio Mfg. Co., Inc. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312; McClellan et al. v. Montana-Dakota Utilities Co., 8 Cir., 204 F.2d 166, cert. denied, 346 U.S. 825, 74 S.Ct. 43, 98 L.Ed. 350; and Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318, 322. In that portion of the opinion of this court in Minnesota Mining and Manufacturing Co. v." }, { "docid": "8099808", "title": "", "text": "to show that the invention described in Figure 15 of the Barraquer Article was not prior art because polyethylene is inoperable as a haptic material. Freeman submitted the affidavit of Dr. Donald L. MacKeen which, after stating his professional qualifications, stated that: (2) Upon information and belief, the physical structure of polyethylene has alternating crystalline and non-crystalline regions which makes it wholly unsuitable for prolonged implantation in the aqueous humor of the eye as required in intraocular lens devices. (3) Further, upon information and belief, the surface of polyethylene is subject to destructive attack by hydrogen peroxide, a common component of the aqueous humor of the eye. Freeman's Brief in Opposition to Motion 1, app. 5 (emphasis added). This affidavit is insufficient and the Court will strike it. Rule 56(e) of the Federal Rules of Civil Procedure permits parties to supplement memoranda in opposition to summary judgment motions with affidavits which demonstrate that there are genuine issues of material fact. Fed.R.Civ.P. 56(e). However, the rule also states that the 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 ... [the response] must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e) (emphasis added). The MacKeen affidavit clearly does not meet these requirements. First, both statements 2 and 3 indicate that they were made “upon information and belief,” rather than upon MacKeen’s personal knowledge, thus violating the requirement of Rule 56(e). See Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950) (affidavit “made upon information and belief ... does not comply with Rule 56(c)”); Powerlock Floors, Inc. v. Robbins Flooring Co., 280 F.Supp. 627, 630 (D.Del.) (affidavits based upon information and belief are “of no avail to plaintiff”), aff'd., 404 F.2d 875 (3d Cir.1968). The affidavit also does not “show affirmatively that the affiant is competent to testify to the matters therein.” Fed.R.Civ.P. 56(e). Instead, MacKeen merely states his" }, { "docid": "5948502", "title": "", "text": "Germantown Fire Ins. Co., 174 F.2d 799, 805-806 (3d Cir. 1949); Surowitz v. Hilton Hotels Corp., 342 F.2d 596, 604 (7th Cir. 1965), rec’d. on other grounds, 383 U.S. 363, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966). Defendants assert defenses of lack of jurisdiction and legal insufficiency. It is advisable at this point to review the evidence submitted to this Court. Defendants have complied with the mandate of Rule 56(e) and have adduced numerous documents in the form of affidavits and exhibits attesting to their version of the facts. Plaintiff’s papers consist of: (1) The verified complaint made upon information and belief. Because the complaint is verified, it will be regarded as an affidavit. However, it is clear that an affidavit made on information and belief can not support on summary judgment the averments it attempts to uphold. Automatic Radio Manufacturing Co., Inc. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); 6 Moore, Federal Practice, ¶ 56.22 [1], p. 2806 (1965). (2) A brief affidavit in opposition by the attorney for plaintiff. (3) The Memorandum of Law submitted by the same attorney to the contents of which he refers in his affidavit as setting forth the facts. Again, these documents do not meet the standards prescribed by Rule 56(e). Certainly, statements in briefs are not considered as evidence on a summary judgment motion and do not controvert evidence submitted by the movants. Lane v. Greyhound Corp., 13 F.R.D. 178 (E.D.Ky.1952); United States v. Jones, 155 F.Supp. 52, 56 (M.D.Ga.1957); Allen v. Radio Corp. of America, 47 F. Supp. 244, 246 (D.Del.1942). Moreover, even if we were to regard the memorandum as being incorporated by reference into the attorney’s affidavit, the result is an affidavit clearly made without personal knowledge and clearly insufficient. Berkley v. Clark Equipment Co., 22 F.R.D. 487 (E.D.N.Y.1958); Abel v. Morey Machinery Co., 10 F.R.D. 187 (S. D.N.Y.1950); Frost v. Bankers Commercial Corp., 11 F.R.D. 195 (S.D.N.Y.1951), aff’d sub nom. The Constellation (Frost v. Bankers Commercial Corp.), 194 F.2d 505 (2d Cir. 1952). The papers thus present a situation where" }, { "docid": "17751025", "title": "", "text": "Service was the source of the information regarding Ms. Tavery’s income, occupation or tax refunds.” While this statement does deal with the proscription of § 6103(a) against release of return information by the IRS, it is a mere statement of belief and therefore is insufficient to support summary judgment on the source of disclosure issue. Under Fed.R.Civ.P. 56(e), only statements “made on personal knowledge” will support a motion for summary judgment; statements of mere belief must be disregarded. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950) (affidavit in support of motion for summary judgment made on information and belief does not comport with Rule 56(e)); see also Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949) (\"Belief, no matter how sincere, is not equivalent to knowledge.”); Carey v. Beans, 500 F.Supp. 580, 583 (E.D.Pa.1980) (on summary judgment, \"statements [in an affidavit] prefaced by the phrases ‘I believe’ or 'upon information and belief' or those made upon an 'understanding' ... are properly subject to a motion to strike.”); 10A Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d § 2738, pp. 486-89 (1983). . We feel it would be unfair to affirm the summary judgment against Ms. Tavery, as the concurring opinion suggests, on the different theory that she did not produce evidence that the IRS was the source of her return information. That argument was not made below. \"The United States' Brief in Opposition to Plaintiff's Motion for Summary Judgment, and in Support of Its Cross-Motion for Summary Judgment,” I R. Doc. 9, in Proposition III did argue that Ms. Tavery had not shown that the information in question necessarily flowed through the IRS. Id. at 6. But from this, the government concluded only that Ms. Tavery herself was not entitled to summary judgment. The government's position on this point was that: \"A genuine issue of material fact remains: where did Mr. Steffan get the information which he used in the brief filed with the Court?” Id. at 7-8. Then the government brief turned to the grounds on which" }, { "docid": "21642327", "title": "", "text": "party’s pleading, 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. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed. R. Civ. P. 56(e). Jensen’s affidavit was filed in support of Travelers’s motion for partial summary judgment, and as such, it must comport with the requirements of the Federal Rules of Civil Procedure. Rule 56(e) of the Federal Rules of Civil Procedure provides that an affidavit in support of a motion for summary judgment “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). Because affidavits proffered in support of a motion for summary judgment must be based upon personal knowledge, an affidavit based upon “information and belief’ is insufficient as a matter of law. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312 (1950) (affidavit in support of motion for summary judgment made on information and belief does not comport with Rule 56(e)); accord Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir.1988); Tavery v. United States, 32 F.3d 1423, 1426 n. 4 (10th Cir.1994). Furthermore, the court may consider only that evidence that would be admissible at trial. Samuels v. Doctors Hosp., Inc., 588 F.2d 485, 486 n. 2 (5th Cir.1979). Hearsay statements which cannot be categorized as a hearsay exception, conclusory allegations, legal arguments, and statements not based upon personal knowledge, may be stricken. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988) (lack of personal knowledge); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986) (conclusory allegations and legal arguments). With respect to the first argument, the court does not find that the Jensen affidavit is self-serving. Courts have recognized that “conclusory allegations and self-serving affidavits, without support in the" }, { "docid": "15040667", "title": "", "text": "the presentation of facts to the court by a person swearing to have personal knowledge of such facts. See 2A C.J.S. Affidavits § 43. More importantly, where there is a strict statutory requirement that an affidavit be based upon personal knowledge, as in rule 56(e), then an affidavit based on information and belief is insufficient. Automatic Radio Mfg. Co., Inc. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); Hahn v. Frederick, 66 So.2d 823, 825 (Fla.1954). However, where an affidavit is not required by statute or some other rule of court to be based on personal knowledge, it is reasonable that such an affidavit need not necessarily contain personal knowledge in order to be sufficient. United States v. Zagari, 419 F.Supp. 494, 504 n. 29 (N.D.Cal.1976); State Mutual Life Assurance Co. of America v. Peat, Marwick, Mitchell & Co., 49 F.R.D. 202, 213 (S.D.N.Y.1969) (“[I]t has been held that affidavits on information and belief need not be disregarded.”). “[A]n affidavit, in its ordinary sense and usage, may be upon information and belief. In such case, the affiant does not guarantee the accuracy of the data, but he does assume the responsibility of being satisfied upon the best of his information and belief that the data is accurate.” Johnston Broadcasting Co. v. Federal Communications Comm’n, 175 F.2d 351, 354 (D.C.Cir.1949). In the instant case, the statements in the Carmona affidavit which are based on information and belief are relevant to the instant action. These statements contain information concerning Bay State’s business that Mr. Carmona, as an executive, would naturally be expected to receive from other employees within his company. Given that Mr. Carmo-na has made such statements in his affidavit, the Court will assume that he is satisfied upon the best of his information and belief that such statements are accurate. Further, the court finds that these statements, which clearly aver that they are based on information and belief, will not prejudice the Plaintiff. The weight given such statements by the Court will be in accordance with the fact that they are based on information" }, { "docid": "8099809", "title": "", "text": "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 ... [the response] must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e) (emphasis added). The MacKeen affidavit clearly does not meet these requirements. First, both statements 2 and 3 indicate that they were made “upon information and belief,” rather than upon MacKeen’s personal knowledge, thus violating the requirement of Rule 56(e). See Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950) (affidavit “made upon information and belief ... does not comply with Rule 56(c)”); Powerlock Floors, Inc. v. Robbins Flooring Co., 280 F.Supp. 627, 630 (D.Del.) (affidavits based upon information and belief are “of no avail to plaintiff”), aff'd., 404 F.2d 875 (3d Cir.1968). The affidavit also does not “show affirmatively that the affiant is competent to testify to the matters therein.” Fed.R.Civ.P. 56(e). Instead, MacKeen merely states his professional positions without demonstrating any expertise in dealing with polyethylene. Furthermore, the affidavit is in the nature of an opinion or a general denial rather than a document which “set[s] forth specific facts.” Id. Finally, there is evidence that Bradford Kile, Freeman’s attorney, may have admitted that the affidavit was insufficient during discussions with opposing counsel. Motion 4, Certification of Ellen A. Efros at 2. Freeman argues that the affidavit is sufficient because Dr. MacKeen is an expert and the affidavit is based on his “professional knowledge, judgment and opinion” rather than upon information and belief. Freeman’s Brief in Opposition to Motion 4 at 3. He claims that this is sufficient because Rule 702 of the Federal Rules of Evidence permits experts to testify and render opinions as to matters to which they do not have personal knowledge. This argument fails to support the use of such an affidavit to oppose a summary judgment motion. Freeman’s argument fails because Rule 56(e) does not differentiate between affidavits by experts and non-experts and provides no exception for" }, { "docid": "15894430", "title": "", "text": "personal knowledge of the facts recited, or knowledge available from Toys’ business records or from other sources that he believes to be true and correct, plaintiffs’ objection would be well-taken. The disjunctive nature of this statement leaves the reader in doubt as to whether the declarant knows the facts set forth in the declaration or has merely been advised of them by others. See Block v. City of Los Angeles, 253 F.3d 410 (9th Cir.2001) (“The Menkus affidavit appears inadequate under Rule 56(e). Not made on personal knowledge, it did not set forth facts that would be admissible in evidence. It is clear from the affidavit that Menkus was not personally involved in any of the disciplinary suspensions, and that he did not personally review any business records containing information regarding such disciplinary suspensions. Menkus instead relied on information from (unsworn) departmental personnel officers, and the source of these officers’ information is unclear. Rather than set forth facts that would be admissible in evidence, the affidavit was instead based on inadmissible hearsay”); see also Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir.1995) (“Of course, had the Banks put in any evidence of substance, summary judgment might have been averted. But the Banks’ response to Pahlavi’s evidence was information and belief declarations from their counsel. Those were entitled to no weight because the declarant did not have personal knowledge”); Taylor v. List, 880 F.2d 1040, 1046 n. 3 (9th Cir.1989) (“One of the affidavits submitted by Taylor contained a statement to the effect that the affiant was informed and believed that Belleville was involved in depriving Taylor of access to law clerks and law books. The statement does not raise a triable issue regarding Belleville’s involvement. To raise such an issue, the statement would have to be made on personal knowledge, not information and belief. Fed.R.Civ.P. 56(e)”); Heighley v. J.C. Penney Life Ins. Co., 257 F.Supp.2d 1241, 1251 (C.D.Cal.2003) (“Declarations on information and belief are insufficient to establish a factual dispute for purposes of summary judgment”). The mere fact that the declarants “use ... the magic words T" }, { "docid": "22986658", "title": "", "text": "the first few paragraphs to the effect that the affiant has “personal knowledge of the facts set forth in th[e] affidavit”), a statement that the affiant believes something is not in accordance with the Rule. See Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.1978) (equating “I understand” statement in affidavit to inadmissible “I believe” statements and concluding that statement is inadmissible despite general averment to personal knowledge at beginning of affidavit). The district court’s treatment of the “believe” portion of Hedge’s statement in his affidavit — that Hedge “observed motion in the red car which I believe was [Davis] raising his hands towards the roof of his car in an attempt to surrender” — as sufficient to create a fact issue about raised hands was error. ii. According to the Hedge affidavit: “At no time did [Hedge] observe that the driver of the red car tried to run the deputies over. At no time did [Hedge] observe the driver of the red car aim his vehicle at the deputies. At no time did the red car appear to be a threat to any officer on the scene.” The district court concluded that these statements created an issue of fact about whether Davis posed an immediate threat of serious physical harm to the officers in the cul-de-sac when he was shot. We have accepted the first two above-quoted sentences as factual statements, al though they are hotly contested. But, we cannot accept that Hedge’s opinion that “[a]t no time did the red car [Davis] appear to be a threat to any officer on the scene” is outcome determinative for summary judgment. Passing over the usual lurking problems of conclusory opinions in affidavits, the chief reason is that Hedge— unlike the deputies — did not know about the details of the spirited car chase leading up to the cars coming to the cul-de-sac. See United States v. City of Miami, 115 F.3d 870, 873 (11th Cir.1997) (concluding that expert’s opinion — that vestiges of discrimination existed in city fire department — was insufficient to support judgment finding that" }, { "docid": "7885044", "title": "", "text": "with Haagen-Dazs for my store at 520 Commonwealth Avenue, Boston, Massachusetts ... there was explosive growth in the sale of the Haagen-Dazs prepackaged pints to supermarkets and convenience stores.” Paragraph 56 then begins, “Although I do not have the exact dates during which this explosive growth took place, on information and belief, its most active period took place ... during the years 1983 and 1984.” In fact, it appears more likely that plaintiffs’ Kenmore Square Shop failed, not because of competition from prepackaged pints, but because of the proliferation of competing ice cream shops in the same geographic area. Montes Aff. 116. Indeed, plaintiffs have acknowledged that “sales at [the Kenmore Square Shop] were halved and continued to decline” after a Steve’s ice cream store opened nearby four months after their shop began operating. Plaintiffs’ Answers to First Set of Interrogatories at 5. Plaintiffs’ bare assertions about an “explosion” in the sale of prepackaged pints, without more, cannot survive defendants’ motion for summary judgment. “Those facts alleged on ‘understanding’ like those based on ‘belief’ or on ‘information and belief’, are not sufficient to create a genuine issue of fact.” Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.1978); accord Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988) (“Because there is no way to ascertain which portions of [the] affidavit were based on personal knowledge, as opposed to information and belief, the affidavit is insufficient under Rule 56.”); Orlik Ltd. v. Helme Products Inc., 427 F.Supp. 771, 778 (S.D.N.Y.1977) (“[Defendants’ affidavit is submitted only upon information and belief. Thus, it fails to satisfy Rule 56(e) ... which requires affidavits to be made ‘on personal knowledge.’ ”). Rule 56(e), Fed.R. Civ.P., states: Supporting and opposing 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 ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations" }, { "docid": "9933484", "title": "", "text": "Amended Complaint as evidence of the facts alleged therein because it is verified. The Amended Complaint states, in relevant part, as follows: “Pursuant to 28 U.S.C. § 1746, I LUIS CARLOS JOSENDIS declare, under penalty of perjury that the factual allegations contained in paragraphs 13 through 46 are true and correct, to the best of my knowledge and belief.” DE 12, p. 10. It is then signed by Plaintiff. Id. At the summary judgment stage, a verified pleading may serve as an affidavit if it conforms to the requirements of Federal Rule of Civil Procedure 56(e). United States v. Four Parcels of Real Property, 941 F.2d 1428, 1444 n. 35 (11th Cir.1991). The Amended Complaint filed herein cannot be considered at summary judgment because it does not satisfy Rule 56(e). The law in this Circuit is clear that “Rule 56(e)’s personal knowledge requirement prevents statements in affidavits that are based, in part, ‘upon information and belief — instead of only knowledge.” Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir.2002); see also Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir.2000) (“upon information and belief’ insufficient”); Fowler v. S. Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5th Cir.1965) (“knowledge, information and belief’ insufficient) . Thus, because the Amended Complaint does not satisfy Rule 56(e), its allegations cannot be considered at this stage. Plaintiff has filed his Response (DE 23) and Supplemental Response (DE 37) challenging Defendants’ instant Motion. Local Rule 7.5 states that papers opposing a summary judgment motion “shall include a memorandum of law, necessary affidavits, and a single concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.” S.D. Fla. L.R. 7.5.B. The statement of material facts submitted in opposition to a motion for summary judgment must correspond with the order and paragraph numbering scheme used by the movant. Id. 7.5.C. This opposition statement of facts must, where appropriate, controvert the movant’s statement of facts. Failure to controvert a fact alleged by the movant and supported by the record results in the" }, { "docid": "10426019", "title": "", "text": "and Television, 691 F.2d 1344, 1357 (11th Cir.1982) (“It is clear that the Islamic regime now governing Iran has shown a deep hostility toward the United States and its citizens, thus making effective access to the Iranian courts unlikely.”). There is no reason to think that Pahlavi would have had better access to justice. After all, much of the hostility to United States citizens stemmed from this country’s connection to the Shah’s regime, and it is hardly necessary to say that Pahlavi’s connection was, if anything, closer. Of course, had the Banks put in any evidence of substance, summary judgment might have been averted. But the Banks’ response to Pahlavi’s evidence was information and belief declarations from their counsel. Those were entitled to no weight because the declarant did not have personal knowledge. See Taylor v. List, 880 F.2d 1040, 1045 n. 3 (9th Cir.1989); Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir.1991), aff'd, — U.S.-, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); see also Garcia-Franco v. INS, 748 F.2d 518, 519 (9th Cir.1984) (Duniway, J., concurring and dissenting) (“The only affidavit filed was one by [the] attorney.... In it, he repeats what he says in his motion, on information and belief. This was, on its face, a totally insufficient showing. It does not raise any issue_”). In addition, even if the material had been in proper form, the matters addressed by the declaration and the exhibits did not directly come to grips with the question placed at issue: whether Pahlavi could receive a fair trial in Iran. Instead, the information submitted merely indicated that service was made by publication, that Pahlavi should have received notice, and that Iranian experts had considered the claims against Pahlavi. Portions of the written law of Iran were also included. The Banks did submit information to the effect that Pahlavi had argued in an earlier unrelated action that a claim against her would more properly be tried in Iran. Perhaps in so doing the Banks hoped for a kind of judicial estoppel, which would preclude Pahlavi" }, { "docid": "15567616", "title": "", "text": "be attached thereto or served therewith . . ” The Norden affidavit recites: “1. I am the president of Butler Avpak, Inc. and as such have personal knowledge of the facts set forth in this affidavit or have obtained knowledge of said facts from records and reports of employees of Butler Avpak, Inc., which are prepared and kept in the ordinary course of business and over which I have custody and control. 19. The suit filed by AVPAK against Digital in New York has been of little or no aid to AVPAK since, although a default against Digital has been taken, the Internal Revenue Service has seized all of Digital’s assets. I understand that such assets only amount to approximately $2,600.” The preface “I understand” is very different from the normal positive assertions used in the rest of the affidavit, even though many of the assertions are of facts Mr. Norden could only have gained knowledge of through unrevealed records or hearsay. Similar prefaces such as “I believe” are used only when Mr. Norden gives a legal opinion or predicts the future. Those facts alleged on “understanding” like those based on “belief” or on “information and belief”, are not sufficient to create a genuine issue of fact. Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950); State of Washington v. Maricopa County, 143 F.2d 871 (9th Cir. 1944), cert. den. 327 U.S. 799, 66 S.Ct. 900, 90 L.Ed. 1024. If Mr. Norden gained knowledge through business records or post trial discovery that Digital’s assets had all been seized by the I.R.S., he should have attached copies of the “papers or parts thereof referred to” in his affidavit so as to properly support his conclusion. It was Avpak’s duty to show affirmatively that the affiant was competent to testify about Digital’s financial status; all we have here is a bare assertion. The lower court nó doubt concluded that Mr. Norden’s bare assertions were not competent evidence under the circumstances or that he was not competent to testify as to the contents of" } ]

[ { "docid": "6315147", "title": "", "text": "of undue hardship in discharging the educational loans, good faith is implicit in § 523(a)(8). In re Price, 1 B.R. 768, 1 CBC 2d 647, 648-49 (Bkrtcy.D.Hawaii 1980). Good faith has not been demonstrated by the Debtor in this case. She made no effort to contact the Plaintiffs when she left school nor did she attempt to negotiate any repayment programs with the Plaintiffs. She moved into a more expensive apartment and allowed her brother to live there gratuitously. While this Court is not unsympathetic to the Debtor’s sheltering and caring of her brother, it should not allow her to do so at the expense of the educational loan programs. . In applying the four points of the Matthews case, this Debtor’s circumstances do not mandate a discharge of the educational loans. While the Debtor has not accumulated any appreciable wealth, she has obtained steady employment for approximately a year and is currently due to be reviewed for a raise. The Debtor has sufficient income to maintain a minimal standard of living and in fact has a surplus income over expenses which would be available to begin a repayment program. Regarding the repayment program which should be instituted, authority exist to allow this Court to revise the repayment schedule to lessen the financial burden of the monthly payments. In re MacPherson; 19 CBC 178 (W.D.Wis.1978); In re Littell, 6 B.R. 85, 6 BCD 1049 (Bkrtcy.D.Oregon 1980). This Court has also noted the willingness of the Plaintiffs to provide liberal and extended terms for repayment of the respective obligations. This Court directs that each loan authority provide to the Debtor schedules of regular payments spread over ten years. Both Plaintiffs in this case have requested attorney’s fees in various amounts in addition to declaring the debt of the Debtor nondischargeable. It is this Court’s opinion that attorney’s fees are not appropriate in this instance and will not be allowed. The debt of the Debtor with interest at the rate specified in the respective notes and court costs to each Plaintiff is determined to be nondischargeable in bankruptcy." } ]

[ { "docid": "23219233", "title": "", "text": "to repay her educational loans in the future would not represent an “undue hardship.” It is within the proper exercise of the equitable powers of this Court to set forth a payment schedule which takes into account the defendant’s temporary severe difficulties. In re Bowen, 37 B.R. at 173. As this Court has previously noted: While the literal language of the statute does not create such leeway, several bankruptcy courts faced with the same question have concluded that the “either/or” result suggested by the statute is unnecessarily harsh in many less-than-clearcut cases. Several courts have concluded that it is appropriate, and . within the policy of the statute, to enter a judgment which holds the educational loan debt to be non-dischargeable, but restructures repayment of the indebtedness in such a way as to take into account severe but non-permanent difficulties experienced by a debtor. Id. (citing In re Brown, 18 B.R. 219 (Bankr.D.Kan.1982); In re Archie, 7 B.R. 715 (Bankr.E.D.Va.1980); In re Hemmen, 7 B.R. 63 (Bankr.S.D.Ala.1980); In re Littell, 6 B.R. 85 (Bankr.D.Or.1980)); see also In re Medeiros, 86 B.R. at 286 (payments of $50 per month after one year deferral). Accordingly, pursuant to 11 U.S.C. § 523(a)(8), the debt owing to Plaintiff for educational loans made, insured or guaranteed by a governmental unit is not dis-chargeable. The Court shall defer Plaintiffs right to execute on a judgment relating to the educational loans and shall establish a payment schedule which will require the debtor to pay to Plaintiff the sum of $50 on January 15,1992, and on the 15th of each month thereafter until the entire indebtedness of $4017.73 is paid in full. A separate Final Judgment in favor of the Plaintiff will be entered. FINAL JUDGMENT Upon the Findings of Fact and Conclusions of Law separately entered, it is ORDERED: 1. Final Judgment is entered in favor of Plaintiff, The Cadle Company for $4,017.73 and against the Defendant, Sheila Johnnie Mae Webb. 2. Pursuant to 11 U.S.C. § 523(a)(8), this debt for educational loans made, insured or guaranteed by a governmental unit is not dischargeable. 3. Plaintiffs right" }, { "docid": "4687446", "title": "", "text": "speaking through Judge Clive W. Bare, has previously noted: Under 11 U.S.C. § 523(a)(8), a debtor must prove that repayment of the educational loan would impose an undue hardship. Although the statute does not contain a definition of “undue hardship”, the courts have generally agreed that the debtor has the strict burden of proving that payment of these loans would constitute more than a mere hardship or financial adversity. In re Albert, 25 B.R. 98 (Bkrtcy.N.D.Ohio 1982); U.S. v. Brown, 18 B.R. 219 (Bkrtcy.D.Kan.1982) (undue hardship contemplates unique and extraordinary circumstances); In re Abrams, 19 B.R. 64 (Bkrtcy.D.Neb.1982) (more than a present inability to pay); In re Briscoe, 16 B.R. 128 (Bkrtcy.S.D.N.Y. 1981) (certainty of hopelessness). In re Reid, 39 B.R. at 26. The “undue hardship” contemplated by § 523(a)(8)(B) envisions “unique and extraordinary circumstances.” Strauss v. United States of America (In re Strauss), 91 B.R. 872, 873-74 (Bankr.E.D.Mo.1988); Lisanti v. Pennsylvania Higher Education Assistance Agency (In re Lisanti), 77 B.R. 27 (Bankr.W.D.Pa.1987) (Undue hardship signifies a debtor’s income insufficient to maintain a minimum standard of living and permit repayment of the loan, “uniquely difficult circumstances” required). As noted by Chief Bankruptcy Judge Barta: “Generally, mere inability to pay is not a sufficient basis to permit dis-chargeability pursuant to § 523(a)(8), because financial uncertainty exists to some degree in every Chapter 7 case.” In re Strauss, 91 B.R. at 874 (citation omitted). Furthermore, the debtor’s circumstance must continue for the life of the repayment period. Lisanti, 77 B.R. at 28. See also Medeiros v. Florida Department of Education (In re Medeiros), 86 B.R. 284 (Bankr.M.D.Fla.1988) (Undue hardship must be long term). It has not been established that repayment of her student loan obligations will constitute an “undue hardship” on the debtor. She is a college graduate and a registered nurse; she has been steadily employed for ten years; earns in excess of $2,200.00 per month; has no apparent health problems; contemplates remarriage; has a potentially collectible judgment in the amount of $6,500.00 against her former husband, a certified public accountant; and apparently has an income presently sufficient to permit her" }, { "docid": "9538919", "title": "", "text": "installment payment); In re Ziglar, 19 B.R. 298, 300 (Bankr.Ed.Va.1982) (dispositive issue is whether a particular loan is an “educational loan” within the meaning of section 523(a)(8)(A)); In re Brown, 4 B.R. 745, 746 (Bankr.E.D.Va.1980) (court determined that five year nondis-chargeability period begins to run on the date on which a student borrower’s original notes first came due, not the date of default on a subsequent installment note, at which point the entire balance came due). Moreover, several cases cited by Hiatt discuss whether an alteration of the terms of an educational loan constituted a “suspension of the repayment period” within the meaning of section 523(a)(8)(A). See, e.g., In re Gremler, 127 B.R. 202, 204 (Bankr.E.D.Wis.1991); In re Barciz, 123 B.R. 771, 773 (Bankr.N.D.Ohio 1990). Here, however, Hiatt’s loan consolidation did not effect an alteration of the terms of her original loans, but rather extinguished her original loans and replaced them with a new loan. Although one bankruptcy court- case cited by Hiatt does provide direct support for her position, see McKinney I, 120 B.R. at 420-21, we are not persuaded by that court’s reasoning, nor was the district court that reviewed the decision. See McKinney II, 1992 WL 265992, at *2-3; 1992 U.S.Dist. Lexis 14796, at *6-*7, rev’g McKinney I, 120 B.R. at 420-21. The McKinney I bankruptcy court failed to consider that, when a borrower undertakes a consolidation loan, the original loan is repaid in full and the debt is discharged, and also that section 523(a)(8)(A) provides for discharge of a debt only if the loan relating to that debt “first became due” more than five years prior to the bankruptcy filing. We conclude that, in eases in which a debtor has consolidated her educational loans pursuant to 20 U.S.C. § 1078-3, the plain language of section 523(a)(8)(A) requires that the nondisehargeability period commences on the date on which the consolidation loan first became due. Because Hiatt’s consolidation loan first became due within five years of the filing of her bankruptcy petition, her debt to the Commission is not dischargeable under section 523(a)(8)(A). CONCLUSION The judgment is affirmed." }, { "docid": "18497530", "title": "", "text": "would leave the job for a teaching position. If more time goes by during which she does not secure a teaching position, she will be better able to convince an employer (and herself) that she wants to make a career of doing something else. In addition, Hawkins’ children will no longer be dependent on her for support as they grow older. Her oldest child at home is now 16 years old. The court concludes that Hawkins has not met her burden of showing that her present financial situation is likely to continue. Her student loan obligation to ISAC will be excepted from her discharge. Although ISAC objects to the dis-chargeability of Hawkins’ student loan, ISAC indicates it would be willing to accept loan payments based on Hawkins’ ability to pay. ISAC requests the court to fashion a repayment schedule. It suggests a sliding scale plan under which Hawkins would make monthly payments of a certain amount depending on her level of earned income. The court disagrees with ISAC’s conclusion that the court has the power to rewrite the terms of Hawkins’ loan payments. The court’s authority under § 523 is to determine dis-chargeability. This is an all-or-nothing proposition. The court acknowledges that several courts have concluded otherwise. These courts have assumed the power to discharge part of a student loan, fashion a repayment plan or order a deferment of payments. See, e.g., Littell v. Oregon Board of Higher Education (In re Littell), 6 B.R. 85, 89 (Bankr. D.Or.1980) (court ordered each debtor to pay $10 per month until the end of the discharge period); Silliman v. Nebraska Higher Education Loan Program (In re Silliman), 144 B.R. 748, 752 (Bankr.N.D.Ohio 1992) (reduced debt from $6,711.36 to $3,000); Sands v. United Student Aid Funds, Inc. (Matter of Sands), 166 B.R. 299, 313 (Bankr.W.D.Mich. 1994) (court ordered one-year deferment of payments due to debtor’s present medical condition). Some courts rely on 11 U.S.C. § 105 as authority to adjust a repayment schedule or to discharge part of a student loan. In Cheesman v. Tennessee Student Assistance Corp. (In re Cheesman), 25 F.3d 356," }, { "docid": "13787152", "title": "", "text": "that he has not yet taken his medical licensing test but that he expects to take and pass the test in June of 1984, and for the results to be reported within approximately six weeks. Upon completion of his licensing requirements, he will be qualified to work as an emergency room physician. The defendant testified that he intends to seek such employment as soon as he is officially qualified and that he expects that such a position will be available to him at an approximate annual salary of $70,000. Thus, the record as a whole supports a finding that Dr. Bowen can reasonably expect to begin payment of his loan without undue, or indeed any, hardship within the year. The reported cases are explicit to the effect that the basis of hardship must be long-term in order for the Court to find dischargeability under § 523(a)(8), See, e.g. In re Johnson, 5 B.C.D. 532 (Bkrtcy.E.D.Pa.1979), In re Bagley, 4 B.R. 248, 6 B.C.D. 404, 2 C.B.C.2d 251 (Bkrtcy.D.Ariz., 1980), inter alia, in which it is held that in determining the existence of undue hardship, the court must look to the debtor’s future prospects, as well as his current situation. The facts simply cannot support a finding of dis-chargeability. The question remains, however, whether it is within the proper exercise of the equitable powers of this Court to set forth a payment schedule which takes into account the defendant’s temporary severe difficulties. While the literal language of the statute does not create such leeway, several bankruptcy courts faced with the same question have concluded that the '“either/or” result suggested by the statute is unnecessarily harsh in many less-than-clearcut cases. Several courts have concluded that it is appropriate, and within the policy of the statute, to enter a judgment which holds the educational loan debt to be non-dischargeable, but restructures repayment of the indebtedness in such a way as to take into account severe but non-permanent difficulties experienced by a debtor. Several published cases authorize just such a holding by a bankruptcy judge. See, In re Hemmen, 7 B.R. 63 (Bkrtcy.S.D.Ala.1980); In" }, { "docid": "1088998", "title": "", "text": "only if a debtor’s income is substantially greater than the poverty guideline would it become necessary for the Court to evaluate the myriad of factors and circumstances which the courts presently examine. In order to fashion a judgment to meet the equities of the case, some courts have held student loans non-dischargeable but have ordered the debtors to make certain limited payments on the loans. See e.g., In re Love, 33 B.R. 753 (Bankr.E.D.Va.1983) (Court deferred payments until date two years in future or when Debtor’s children graduate from college); In re Littell, 6 B.R. 85 (Bankr.D.Ore.1980) (Court ordered each spouse to pay $10.00 monthly on a portion of the debt), In re Albert, 25 B.R. 98 (Bankr.D.Ohio 1982) (Court set up a detailed payment schedule); In re Archie, 7 B.R. 715 (Bankr.E.D.Va.1980) (Court revised repayment schedule to lessen financial burden of monthly payment). In re Hemmen, 7 B.R. 63 (Bankr.N.D.Ala.1980). (Debtor ordered to apply all net income over $3,600.00 per year to student loan for a period of five (5) years); In re Densmore, 8 B.R. 308, 3 C.B.C.2d 471 (Bankr.N.D.Ga.1980) (Court set up revised payment schedule in judgment and prohibited enforce ment of judgment if payments were made as agreed). An argument can certainly be made that the Court has the power to enter such judgment pursuant to § 105(a) rather than applying a “all or nothing at all” standard, although nothing in § 523(a)(8) provides for more than a ruling on dischargeability. However, this Court is reluctant to enter such a judgment which can be tantamount to involuntarily converting the debtor’s case to a Chapter 13 case. See In re Bryant, 72 B.R. 913, 923, n. 6, supra. The Debtor not the Court should decide if he wishes to file a Chapter 13 case, and affect a composition or extension of nondischargeable debt. In addition, this Court fails to see where it has the power to modify or reform the terms of the loan instrument if nondischargeability is found as this is not a “cramdown” situation. However, the Court is given the power under § 105(a) to" }, { "docid": "13787153", "title": "", "text": "held that in determining the existence of undue hardship, the court must look to the debtor’s future prospects, as well as his current situation. The facts simply cannot support a finding of dis-chargeability. The question remains, however, whether it is within the proper exercise of the equitable powers of this Court to set forth a payment schedule which takes into account the defendant’s temporary severe difficulties. While the literal language of the statute does not create such leeway, several bankruptcy courts faced with the same question have concluded that the '“either/or” result suggested by the statute is unnecessarily harsh in many less-than-clearcut cases. Several courts have concluded that it is appropriate, and within the policy of the statute, to enter a judgment which holds the educational loan debt to be non-dischargeable, but restructures repayment of the indebtedness in such a way as to take into account severe but non-permanent difficulties experienced by a debtor. Several published cases authorize just such a holding by a bankruptcy judge. See, In re Hemmen, 7 B.R. 63 (Bkrtcy.S.D.Ala.1980); In re Brown, 18 B.R. 219 (Bkrtcy.D.Kan.1982); In re Archie, 7 B.R. 715 (Bkrtcy.E.D.Va.1980); In re Littell, 6 B.R. 85 (Bkrtcy.D.Or.1980). Accordingly, we will treat the defendant’s indebtedness as follows: The principal and scheduled interest on indebtedness to both plaintiffs shall be adjudged non-dis-chargeable. Not included in the judgment of non-dischargeability is additional interest which has accrued in the form of late charges. The debt to the Board of Regents is thus found to be $375; the payment schedule set out in the judgment will call for payment of $300 on September 1, 1984, and the balance to be due on October 1, 1984. The judgment in favor of Georgia Higher Education Assistance Corporation shall be for $14,600, to be paid in monthly installments of $316.00 each, beginning November 1, 1984. The defendant requests that the Court retain jurisdiction over this matter to supervise the defendant’s future earning capability and further reschedule his obligation if his earning capacity fails to meet present expectations. This we decline to do; indefinite involvement in the defendant’s affairs following his" }, { "docid": "23445690", "title": "", "text": "or policy tests. An increasing number of cases have indicated that although the facts presented do not require a finding of undue hardship, the Court can reduce the amount owed or revise the payment schedule. In re Brown, 18 B.R. 219 (Bkrtcy.D.Kansas 1982). In re Littell, 6 B.R. 85 (Bkrtcy.D.Or.1980); Matter of Hemmen, 7 B.R. 63 (Bkrtcy.N.D.Ala.1980); In re Archie, 7 B.R. 715 (Bkrtcy.E.D. Ya.1980); Notwithstanding this Court’s opinion that the facts of this case do not support the mechanical test of undue hardship, this Court finds that it would be equitable to reduce the amount of nondischargeable liability by the amount of the accrued interest. The Debtor must only pay the principal amount of Six Thousand Two Hundred Eighty and no/100 Dollars ($6,280.00). Furthermore, according to the Higher Education Act, repayment must be completed within fifteen (15) years after the notes were executed. 20 U.S.C. § 1077 (a)(2)(h). Therefore the Court will set up the following repayment schedule: 1. The note dated May 23, 1973 in the amount of Fifteen Hundred and no/100 Dollars ($1,500.00) shall become due and payable on May 23, 1988. 2. The second note dated December 21, 1973 in the amount of One Thousand and no/100 Dollars ($1,000.00) shall become due and payable on December 21, 1988. 3. The third note dated May 25, 1974 in the amount of One Thousand Two Hundred Eighty and no/100 Dollars ($1,280.00) shall become due and payable on May 25, 1989. 4. The fourth and final note dated February 28, 1977 in the amount of Two Thousand Five Hundred and no/100 Dollars ($2,500.00) shall become due and payable on February 28, 1992. This repayment schedule will enable the Debtor to establish a fund for the repayment of these loans, the first of which is not due until five years hence. This will give the Debtor a chance to stabilize himself before the first payment becomes due. Consequently, based upon the foregoing discussion, it is ORDERED, ADJUDGED and DECREED that the student loan debt to the Defendant is nondischargeable to the extent of Six Thousand Two Hundred Eighty and no/100" }, { "docid": "18497531", "title": "", "text": "to rewrite the terms of Hawkins’ loan payments. The court’s authority under § 523 is to determine dis-chargeability. This is an all-or-nothing proposition. The court acknowledges that several courts have concluded otherwise. These courts have assumed the power to discharge part of a student loan, fashion a repayment plan or order a deferment of payments. See, e.g., Littell v. Oregon Board of Higher Education (In re Littell), 6 B.R. 85, 89 (Bankr. D.Or.1980) (court ordered each debtor to pay $10 per month until the end of the discharge period); Silliman v. Nebraska Higher Education Loan Program (In re Silliman), 144 B.R. 748, 752 (Bankr.N.D.Ohio 1992) (reduced debt from $6,711.36 to $3,000); Sands v. United Student Aid Funds, Inc. (Matter of Sands), 166 B.R. 299, 313 (Bankr.W.D.Mich. 1994) (court ordered one-year deferment of payments due to debtor’s present medical condition). Some courts rely on 11 U.S.C. § 105 as authority to adjust a repayment schedule or to discharge part of a student loan. In Cheesman v. Tennessee Student Assistance Corp. (In re Cheesman), 25 F.3d 356, 360 (6th Cir.1994), cert. denied — U.S. -, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995), the court held that the bankruptcy court had the power under § 105 to grant an 18-month stay of its order discharging a student loan to see if the debtor’s financial situation improved. See also Conner v. Illinois State Scholarship Commission (In re Conner), 89 B.R. 744, 750 (Bankr.N.D.Ill.1988) (court not prevented from “fashioning a more equitable repayment schedule,” citing § 105). Other courts apparently justify their decisions on equitable grounds, with little or no analysis of the lack of express authority in § 523 of the Bankruptcy Code to do other than decide dischargeability. In Littell, without citation, the court explained its decision to revise the debtor’s repayment schedule: Even though it might be undue hardship for a debtor to repay the entire loan, some payment might be feasible. Instead of the all or nothing approach, the courts should consider whether only part of the debt should be nondisehargeable and what monthly payment the debtor could afford. Littell, 6" }, { "docid": "14643586", "title": "", "text": "when debtors’ student loans are nondischargeable, interesting remedies are sometimes fashioned by courts. Some courts have mandated payment schedules for the debtor to follow. See, e.g., United States v. Hemmen (In the Matter of Hemmen), 7 B.R. 63, 67 (Bankr.N.D.Ala.1980) (The bankruptcy court held that the debtor’s student loans might be discharged if the debtor used his best efforts to find a job and applied any income in excess of $3,600 per year, after taxes, to payment of his student loans for a period of five years from maturity of the last loan.); Georgia Higher Educ. Assistance Corp. v. Densmore (In re Densmore ), 8 B.R. 308, 309 (Bankr.N.D.Ga.1980) (no discharge but payment schedule established). Others have discharged only a portion of the total student loan indebtedness. See, e.g., Woyame v. Career Educ. & Mgt. (In re Woyame), 161 B.R. 198, 203 (Bankr.N.D.Ohio 1993) (The court discharged approximately $2,200 of a total of $11,000 in student loans because “allowing the full amount of the debt to be ... nondischargeable would work an undue hardship upon the [debtor].”); Littell v. State of Oregon (In re Littell), 6 B.R. at 89 (Decrying the “all or nothing approach” of some courts, the bankruptcy court ordered one loan discharged and the husband and wife debtors to each pay $10 on the remaining two student loans until the expiration of the five-year period then provided for under § 523(a)(8)(A).). Finally, several courts have ordered deferments of student loan repayment ranging in length from one to four years. In Medeiros v. Florida Dept. of Educ. (In re Medeiros), 86 B.R. 284 (Bankr.M.D.Fla.1988), the court declined the debtor’s request for discharge of her student loans, in part, because of her good earning potential. Nonetheless, the court recognized that at the time of trial, the debtor faced tax liabilities and necessary expenses for surgery and counselling which caused her current expenses to exceed her current income. As a result, the court ordered a one-year deferment of the debtor’s student loans. Similarly, in In the Matter of Roberson, 999 F.2d at 1138, the Seventh Circuit affirmed the bankruptcy court’s" }, { "docid": "23219232", "title": "", "text": "faith efforts to repay the loans. Brunner v. New York State Higher Education Services, Corp., 831 F.2d 395, 396 (2d Cir.1987); In re Garneau, 122 B.R. 178, 179-180 (Bankr.W.D.N.Y.1990); In re Harris, 103 B.R. 79, 80 (Bankr.W.D.N.Y.1989); In re Cahill, 93 B.R. 8, 11 (Bankr.N.D.N.Y.1988); see also In re Medeiros, 86 B.R. at 286; In re Bowen, 37 B.R. at 172-173. In this case, it is clear that Defendant had no financial ability to make payments on the educational loans as of the date of trial. However, there is no evidence that her inability to make payments is permanent. The record demonstrates no additional circumstances indicating a likelihood that her current inability to find any work will extend for any significant period of time. She is not disabled or elderly. No evidence was presented indicating a total foreclosure of job prospects in her area of training. As noted, Defendant is educated, experienced and articulate. Although predicting future income is problematic, Brunner, 831 F.2d at 396, the record supports the conclusion that an obligation for Defendant to repay her educational loans in the future would not represent an “undue hardship.” It is within the proper exercise of the equitable powers of this Court to set forth a payment schedule which takes into account the defendant’s temporary severe difficulties. In re Bowen, 37 B.R. at 173. As this Court has previously noted: While the literal language of the statute does not create such leeway, several bankruptcy courts faced with the same question have concluded that the “either/or” result suggested by the statute is unnecessarily harsh in many less-than-clearcut cases. Several courts have concluded that it is appropriate, and . within the policy of the statute, to enter a judgment which holds the educational loan debt to be non-dischargeable, but restructures repayment of the indebtedness in such a way as to take into account severe but non-permanent difficulties experienced by a debtor. Id. (citing In re Brown, 18 B.R. 219 (Bankr.D.Kan.1982); In re Archie, 7 B.R. 715 (Bankr.E.D.Va.1980); In re Hemmen, 7 B.R. 63 (Bankr.S.D.Ala.1980); In re Littell, 6 B.R. 85 (Bankr.D.Or.1980)); see" }, { "docid": "6937882", "title": "", "text": "negotiate a more favorable repayment schedule with PHEAA. During this period, however, she has had funds for other purposes, such as the purchase of a new car in April, 1987, six months after completing the payments for the car she purchased in 1983. She promptly repaid debts to her family and regularly made payments on her debt to the credit union until it was fully repaid. From her repeated complaint during testimony that she was charged interest during the year that repayment for the student loans was deferred, it appears that the debtor considered the loans a convenience but resented the attendant inconvenience of repaying them. In addition, the student loans represent over 86% of the total scheduled debt, leading to the conclusion that the debtor’s dominant motive in seeking relief in bankruptcy was to evade her student loan obligation. In re Brown, 18 B.R. 219, 223 (Bankr.D.Kan.1982). But for the student loans, it is doubtful that she would be in bankruptcy court at all. The Second Circuit’s undue hardship test can produce a harsh result. The District Court noted, § 523(a)(8) commits a student-borrower to repay a government-guaranteed student loan “regardless of his or her subsequent economic circumstances.” Brunner, 46 B.R. at 756. Application of that test to the facts in this matter result in a determination that the debtor’s obligation to PHEAA is not dischargeable. It is so ordered. . Because this debt became due less than five years before the debtor filed her petition, it is non-dischargeable under § 523(a)(8)(A), as the debtor conceded at the hearing. . Section 523. Exceptions to discharge. (a) A discharge under section 727, ... of this title does not discharge an individual debtor from any debt— (8) for an educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution, unless— (B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents; 11 U.S.C. § 523. . The debtor receives insurance coverage from" }, { "docid": "23219234", "title": "", "text": "also In re Medeiros, 86 B.R. at 286 (payments of $50 per month after one year deferral). Accordingly, pursuant to 11 U.S.C. § 523(a)(8), the debt owing to Plaintiff for educational loans made, insured or guaranteed by a governmental unit is not dis-chargeable. The Court shall defer Plaintiffs right to execute on a judgment relating to the educational loans and shall establish a payment schedule which will require the debtor to pay to Plaintiff the sum of $50 on January 15,1992, and on the 15th of each month thereafter until the entire indebtedness of $4017.73 is paid in full. A separate Final Judgment in favor of the Plaintiff will be entered. FINAL JUDGMENT Upon the Findings of Fact and Conclusions of Law separately entered, it is ORDERED: 1. Final Judgment is entered in favor of Plaintiff, The Cadle Company for $4,017.73 and against the Defendant, Sheila Johnnie Mae Webb. 2. Pursuant to 11 U.S.C. § 523(a)(8), this debt for educational loans made, insured or guaranteed by a governmental unit is not dischargeable. 3. Plaintiffs right to execute upon this Final Judgment shall be withheld if Defendant complies with the following payment schedule. 4. Defendant shall pay the sum of $50.00 on the fifteenth of each month beginning January 15, 1992, to The Cadle Company, c/o Ms. Ruth A. Cadle, 4363 La France Street, Newton Falls, Ohio 44444, until the Final Judgment is paid in full. 5. If the Defendant fails to timely make any payment required by paragraph 4 above, and the failure to make any such payment continues unaccomplished for a period of ten (10) days, Plaintiff may secure an execution upon this Final Judgment, without further hearing, upon filing an Affidavit stating that a payment has not been timely made." }, { "docid": "22131288", "title": "", "text": "lack of scope. While it identifies the legislative purpose of excepting student loans from discharge, the legislative history offers little to define the nature of the exception (undue hardship) to the exception (nondischargeability). That Congress wanted to save the student loan programs and bar the undeserving student borrower from abusing the bankruptcy process does not directly identify how Congress intended the discharge to be granted in cases of undue hardship. The legislative purposes do not illustrate the legislative position on the propriety of partial discharge and other revisions of student loans in undue hardship cases under § 523(a)(8). Nevertheless, some courts have found that revising student loans, partially discharging them, or deferring payments by maintaining or extending the automatic stay, are proper applications of the undue hardship exception to the nondischarge-ability of student loans because such manipulation upholds the policies behind non-dischargeability generally and attributes significance to the fresh start policy at the same time. These courts find that partial discharge of student loans protects the solvency of the student loan programs and deters undeserving debtors while protecting the honest but unfortunate debtor better than the all-or-nothing approach which can lead to harsh results, either for the creditor or the debtor depending on the whether the outcome is all or nothing. See, e.g., Georgia Higher Educ. Assistance Corp. v. Bowen (In re Bowen), 37 B.R. 171, 173 (Bankr.M.D.Fla.1984) (acknowledges that the literal language of the statute does not create the leeway to exercise equitable powers, but concludes that it is nevertheless appropriate and within the policy of the statute to hold the debt non-dischargeable but restructure repayment because the either/or results are unnecessarily harsh). Other courts granting partial discharge and other partial relief under § 523(a)(8) rely on the equitable powers of § 105(a), which provides, in relevant part, “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title ... shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate ... to prevent" }, { "docid": "14643587", "title": "", "text": "the [debtor].”); Littell v. State of Oregon (In re Littell), 6 B.R. at 89 (Decrying the “all or nothing approach” of some courts, the bankruptcy court ordered one loan discharged and the husband and wife debtors to each pay $10 on the remaining two student loans until the expiration of the five-year period then provided for under § 523(a)(8)(A).). Finally, several courts have ordered deferments of student loan repayment ranging in length from one to four years. In Medeiros v. Florida Dept. of Educ. (In re Medeiros), 86 B.R. 284 (Bankr.M.D.Fla.1988), the court declined the debtor’s request for discharge of her student loans, in part, because of her good earning potential. Nonetheless, the court recognized that at the time of trial, the debtor faced tax liabilities and necessary expenses for surgery and counselling which caused her current expenses to exceed her current income. As a result, the court ordered a one-year deferment of the debtor’s student loans. Similarly, in In the Matter of Roberson, 999 F.2d at 1138, the Seventh Circuit affirmed the bankruptcy court’s two-year deferment of the debtor’s student loans. Noting the bleakness of the debtor’s immediate future, the court nonetheless agreed that the debtor had failed to prove that his “dire straits” were more than temporary. Thus, the court found a two-year deferment was reasonable in order to allow the debtor to recover financially. See also Conner v. Illinois State Scholarship Comm’n (In re Conner), 89 B.R. 744, 750 (Bankr.N.D.Ill.1988) (The court ordered a four-year deferment of the debtor’s student loans and required the parties to renegotiate the terms of those loans upon the expiration of that deferment.); Love v. United States (In re Love), 33 B.R. 753, 755 (Bankr.E.D.Va.1983) (The court incorporated the government’s deferment offer into its order, placing a maximum two-and-one-half-year limit on the deferment period.). Although the court in this proceeding cannot discharge the Debtor’s student loans, it may order a deferment based on the Debt- or’s current situation. The Debtor’s current expenses exceed his current income by $50 to $100 per month. See supra note 15 and accompanying text. Moreover, those income" }, { "docid": "22131295", "title": "", "text": "whom a whole discharge seems overly generous (usually due to the debtor’s potential for increased future earnings) appears to have begun with the bankruptcy court’s opinion in Littell v. State of Oregon Bd. of Higher Educ. (In re Littell), 6 B.R. 85, 89 (Bankr.D.Or.1980). The court in Littell offered no authority for its position, but merely held that “[i]nstead of the all-or-nothing approach [prevailing in nearly every case to date], the courts should consider whether only part of the debt should be nondis-chargeable and what monthly payment the debtor could afford.” Id. The court ordered a partial discharge of the debtor’s loans by first reducing the payments and then, interestingly, calculating the number of payments to be made so that payments would terminate at the end of the five year nondischargeable period. Id. Since the Littell opinion in 1980, the number of courts granting partial discharges and other equitable relief under § 523(a)(8) has increased considerably. See, e.g., Wetzel v. New York Higher Educ. Services Corp. (In re Wetzel), 213 B.R. 220, 226-27 (Bankr.N.D.N.Y.1996) (bankruptcy court has discretion to consider the extent to which student loans are nondis-chargeable); Oderkirk v. Northiuest Educ. Loan Ass’n., Fin. Assistance, Inc. (In re Oderkirk), 1995 WL 241338 (Bankr.D.Idaho 1995) (bankruptcy courts have the equitable power to either restructure or partially discharge student loans); Dennehy v. Sallie Mae (In re Dennehy), 201 B.R. 1008, 1012-13 (Bankr.N.D.Fla.1996) (debtor’s student loans nondischargeable, but collection and accrual of interest deferred for two years); Cheesman v. Tennessee Student Assistance Corp. (In re Cheesman), 25 F.3d 356, 360-61 (6th Cir.1994) (debtor’s student loans nondischargeable, but court’s order stayed for 18 months); In re Roberson, 999 F.2d 1132, 1138 (7th Cir.1993) (affirmed bankruptcy court’s order deferring student loans for two years, without comment on the source of authority); Woyame v. Career Educ. & Management (In re Woyame), 161 B.R. 198, 203 (Bankr.N.D.Ohio 1993) (partial discharge of student loans); Griffin v. Eduserv (In re Griffin), 197 B.R. 144, 147 (Bankr.E.D.Okla.1996) (bankruptcy court has the authority to modify the repayment terms and/or the amount owed) (citations omitted); Silliman v. Nebraska Higher Educ. Loan" }, { "docid": "18497533", "title": "", "text": "B.R. at 89. Several courts cite Littell for partial support. See, e.g., Silliman, 144 B.R. at 752; Sands, 166 B.R. at 313. In Georgia Higher Education Assistance Corp. v. Bowen (In re Bowen), 37 B.R. 171 (Bankr.M.D.Fla.1984), the court entered an order restructuring the debtor’s loan payment. While conceding that the literal language of § 523 did not grant such authority, the court cited cases which had concluded this authority was “within the policy” of the statute. Id. at 173. In Matter of Roberson, 999 F.2d 1132, 1134 (7th Cir.1993), the bankruptcy court had denied the dischargeability of the debtor’s student loans, but ordered a two-year deferment of payments. The Seventh Circuit held that the bankruptcy court’s factual findings supported denial of dis-chargeability, without comment on the court’s authority to order a deferment. Id. at 1138. The language of 11 U.S.C. § 523(a)(8) does not authorize the court to fashion a repayment schedule for student loans. Bowen, 37 B.R. at 173. Although it is arguably a more equitable approach, Congress has not given bankruptcy courts the authority to rewrite student loans. See Thad Collins, Note, Forging Middle Ground: Revision of Student Loan Debts in Bankruptcy as an Impetus to Amend 11 U.S.C. § 528(a)(8), 75 Iowa L.Rev. 733, 762 (1990) (proposing amendment to § 523(a)(8) to allow partial discharge, deferral of repayment or restructure of payments). Congress could have provided that student loans will be dis-chargeable “to the extent” excepting such debt will impose undue hardship upon a debt- or and her dependents. Congress used that phrase numerous times elsewhere in the Bankruptcy Code, including three other subdivisions of the dischargeability statute, 11 U.S.C. §§ 523(a)(2), 523(a)(5), and 523(a)(7). The United States Supreme Court has applied a rule of statutory construction by which Congress’ failure to include language is presumed intentional where it has used the language elsewhere in the same statute. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522-23, 104 S.Ct. 1188, 1194, 79 L.Ed.2d 482 (1984). Moreover, the bankruptcy court’s power under § 105 is not a limitless authorization to do whatever seems equitable. The court may" }, { "docid": "1088997", "title": "", "text": "and the federal poverty guidelines published in volume 52, Number 34, page 5430 of the Federal Register on February 20, 1987 pursuant to Fed.R.Evid. 201(b), citing, Mitchell v. Rose, 570 F.2d 129, 132 n. 2 (6th Cir.1978), rev’d on other grounds, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) where it was held the Court could take judicial notice of census figures. The only variation made by the Court was that it used “net income” rather than “gross income” in applying the test, “gross income” being defined as “total annual cash receipts before taxes from all sources” 52 Fed.Reg. § 340 (Feb. 20, 1987); 45 C.F.R. § 1060.2-2(d)(l) (1986). The Bryant Court held that since these poverty guidelines are used as an eligibility criterion for federal assistance programs such income levels are viewed as being bare subsistance levels which cause such persons as being deemed incapable of affording to pay certain necessary services, “undue hardship” exists where the debtor does not have income substantially greater than these guidelines. The Bryant Court added that only if a debtor’s income is substantially greater than the poverty guideline would it become necessary for the Court to evaluate the myriad of factors and circumstances which the courts presently examine. In order to fashion a judgment to meet the equities of the case, some courts have held student loans non-dischargeable but have ordered the debtors to make certain limited payments on the loans. See e.g., In re Love, 33 B.R. 753 (Bankr.E.D.Va.1983) (Court deferred payments until date two years in future or when Debtor’s children graduate from college); In re Littell, 6 B.R. 85 (Bankr.D.Ore.1980) (Court ordered each spouse to pay $10.00 monthly on a portion of the debt), In re Albert, 25 B.R. 98 (Bankr.D.Ohio 1982) (Court set up a detailed payment schedule); In re Archie, 7 B.R. 715 (Bankr.E.D.Va.1980) (Court revised repayment schedule to lessen financial burden of monthly payment). In re Hemmen, 7 B.R. 63 (Bankr.N.D.Ala.1980). (Debtor ordered to apply all net income over $3,600.00 per year to student loan for a period of five (5) years); In re Densmore," }, { "docid": "22131289", "title": "", "text": "debtors while protecting the honest but unfortunate debtor better than the all-or-nothing approach which can lead to harsh results, either for the creditor or the debtor depending on the whether the outcome is all or nothing. See, e.g., Georgia Higher Educ. Assistance Corp. v. Bowen (In re Bowen), 37 B.R. 171, 173 (Bankr.M.D.Fla.1984) (acknowledges that the literal language of the statute does not create the leeway to exercise equitable powers, but concludes that it is nevertheless appropriate and within the policy of the statute to hold the debt non-dischargeable but restructure repayment because the either/or results are unnecessarily harsh). Other courts granting partial discharge and other partial relief under § 523(a)(8) rely on the equitable powers of § 105(a), which provides, in relevant part, “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title ... shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate ... to prevent an abuse of process.” See, e.g., Conner v. Illinois State Scholarship Commission (In re Conner), 89 B.R. 744, 750 (Bankr.N.D.Ill.1988) (Section 105(a) cited as authority without elaboration). However, § 105(a) has been found by some courts to be restricted to exercising equitable powers only within the enumerations of the Code. See Johnson v. First Nat’l Bank of Montevideo, 719 F.2d 270, 273 (8th Cir.1983) (bankruptcy court erred when it stayed a state authority period of redemption pursuant to § 105(a); bankruptcy court’s broad equitable powers may only be exercised in a manner which is consistent with the provisions of the Code). Indeed, the Supreme Court has also said as much. See Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988) (whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code). Accordingly, the question arises whether § 105(a) provides authority for a bankruptcy court to grant an undue hardship discharge under § 523(a)(8) in any manner less than" }, { "docid": "18497532", "title": "", "text": "360 (6th Cir.1994), cert. denied — U.S. -, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995), the court held that the bankruptcy court had the power under § 105 to grant an 18-month stay of its order discharging a student loan to see if the debtor’s financial situation improved. See also Conner v. Illinois State Scholarship Commission (In re Conner), 89 B.R. 744, 750 (Bankr.N.D.Ill.1988) (court not prevented from “fashioning a more equitable repayment schedule,” citing § 105). Other courts apparently justify their decisions on equitable grounds, with little or no analysis of the lack of express authority in § 523 of the Bankruptcy Code to do other than decide dischargeability. In Littell, without citation, the court explained its decision to revise the debtor’s repayment schedule: Even though it might be undue hardship for a debtor to repay the entire loan, some payment might be feasible. Instead of the all or nothing approach, the courts should consider whether only part of the debt should be nondisehargeable and what monthly payment the debtor could afford. Littell, 6 B.R. at 89. Several courts cite Littell for partial support. See, e.g., Silliman, 144 B.R. at 752; Sands, 166 B.R. at 313. In Georgia Higher Education Assistance Corp. v. Bowen (In re Bowen), 37 B.R. 171 (Bankr.M.D.Fla.1984), the court entered an order restructuring the debtor’s loan payment. While conceding that the literal language of § 523 did not grant such authority, the court cited cases which had concluded this authority was “within the policy” of the statute. Id. at 173. In Matter of Roberson, 999 F.2d 1132, 1134 (7th Cir.1993), the bankruptcy court had denied the dischargeability of the debtor’s student loans, but ordered a two-year deferment of payments. The Seventh Circuit held that the bankruptcy court’s factual findings supported denial of dis-chargeability, without comment on the court’s authority to order a deferment. Id. at 1138. The language of 11 U.S.C. § 523(a)(8) does not authorize the court to fashion a repayment schedule for student loans. Bowen, 37 B.R. at 173. Although it is arguably a more equitable approach, Congress has not given bankruptcy courts" } ]

[ { "docid": "18276109", "title": "", "text": "Uniformly, the courts have held to the contrary. A.L.A. Schechter Poultry Corp. v. United States, 1935, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570; Lawson v. Woodmere, 4 Cir., 1954, 217 F.2d 148, 150; Jewel Tea Co. v. Williams, 10 Cir., 1941, 118 F.2d 202, 207; Lipson v. Socony-Vacuum Corp., 1 Cir., 1937, 87 F.2d 265, 267, certiorari granted 300 U.S. 651, 57 S.Ct. 612, 81 L.Ed. 862 certiorari dismissed 301 U.S. 711, 57 S.Ct. 788, 81 L.Ed. 1364. Interference with intrastate activity cannot constitute a violation of the Sherman Act unless its effect on interstate commerce is both substantial and direct. A.L.A. Schechter Poultry Corp. v. United States, supra; Mandeville Island Farms v. American Crystal Sugar Co., 1947, 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328; Local 167 v. United States, 1933, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804. We observed in the earlier case at page 268, 249 F.2d: “There is no allegation in the complaint remotely suggesting that the acts of defendants cast any burden upon interstate commerce. The mere fact that plaintiff at his location in Arkansas may be treating patients from other states who must travel interstate does not result in practic ing his profession in interstate commerce, as the transportation of such patients is incidental. The practice of his profession as disclosed by the allegations of his complaint is neither trade nor commerce within Section 1 of the Sherman Anti-Trust Act, nor are there any allegations in the complaint indicating that the actions of defendants here complained of resulted in a monopoly within the provisions of Section 2 of the Act. Plaintiff has not been prevented from practicing his profession, but in the final analysis his complaint is that he could practice it more profitably but for the acts of the defendants.” (Emphasis supplied.) The case of Spears Free Clinic and Hospital for Poor Children v. Cleere, 10 Cir., 1952, 197 F.2d 125, is on almost all fours with the instant case. Therein the court stated, at page 126: “The practice of the healing arts in Colorado, including chiropractic, is" } ]

[ { "docid": "13463215", "title": "", "text": "343 U.S. at 338-39, 72 S.Ct. 690, at 698. In Spears Free Clinic & Hospital v. Cleere, 10 Cir., 197 F.2d 125, a chiropractic hospital sought damages for injuries that allegedly resulted from the conspiracy of the defendants, members of a Colorado medical society, the State Board of Health, and others, “to monopolize the entire practice of the healing arts within the State of Colorado in the medical profession, to the exclusion and restraint of the practice of chiropractic.” Id. at 126. The hospital alleged specifically that it regularly treated patients from out-of-state and from foreign countries and that the defendants had conspired to restrain this trade by preventing the hospital from being licensed and by interfering with its maintenance and operation. Relying on United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010, and Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, we concluded that the defendants’ conduct had “no . . . substantial 'effect on interstate or foreign commerce.” Id. 197 F.2d at 128. The effect upon interstate commerce was too “incidental or remote” to bring the defendants’ conduct within the proscriptions of the Sherman Act. Id. at 126. Thus, the practice of medicine in Colorado, including the business of the plaintiff hospital, was entirely intrastate in character. Id. The case most directly in point is Riggall v. Washington County Medical Society, 8 Cir., 249 F.2d 266, cert. denied, 355 U.S. 954, 78 S.Ct. 540, 2 L.Ed.2d 530. There the plaintiff, a physician and surgeon, alleged that the members of the defendant medical society had conspired to refuse membership to the plaintiff and that, as a result, he had been prevented in his business from treating as many patients as would have otherwise sought his services. The court affirmed the lower court’s ruling dismissing the action, noting that the treatment of patients who must travel interstate “does not result in [the plaintiff’s] practicing his profession in interstate commerce as the transportation of such patients is incidental.” Id. at 268. Riggall’s complaint was “wholly lacking in allegations essential" }, { "docid": "11567606", "title": "", "text": "290 F.2d at 330. . Nankin Hospital v. Michigan Hospital Service, E.D.Mich.1973, 361 F.Supp. 1199; Doctors, Inc. v. Blue Cross of Greater Philadelphia, E.D.Pa.1973, 360 F.Supp. 693; Hospital Building Co. v. Trustees of Rex Hospital, E.D. N.C.1973, 1973 Trade Cas. ¶ 74,428. . Elizabeth Hospital, Inc. v. Richardson, 8th Cir. 1959, 269 F.2d 167, cert. denied, 361 U.S. 884, 80 S.ct. 155, 4 L.Ed.2d 120; Riggall v. Washington County Medical Society, 8th Cir. 1957, 249 F.2d 266, cert. denied, 355 U.S. 954, 78 S.Ct. 540, 2 L.Ed.2d 530 (1958); Spears Free Clinic and Hospital for Poor Children v. Cleere, 10th Cir. 1952, 197 F.2d 125. . Nor is United States v. Oregon State Medical Society, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978 (1952), to the contrary. There, in a Sherman Act injunction suit brought by the government, the district court had found as fact that “[t]he sale of medical services, by Doctor Sponsored Organizations, as conducted within the State of Oregon, is not trade or commerce within the meaning of Section 1 of the Sherman Anti-Trust Law . . . .” 343 U.S. at 338, 72 S.Ct. at 698, 96 L.Ed. at 987. The Supreme Court upheld this finding as not clearly erroneous, stating, “[t]he appeal brings to us no important questions of law or unsettled problems of statutory construction. Its issues are solely ones of fact.” 343 U.S. at 330, 72 S.Ct. at 694, 96 L.Ed. at 983. In this case, by contrast, no testimony has yet been presented and no facts have been found. . See note 3, supra." }, { "docid": "5871163", "title": "", "text": "to meet the jurisdictional requirements of the Sherman Act. First, any restraint unlawful under Section 1, or any monopoly or attempt to monopolize unlawful under Section 2, must detrimentally affect plaintiff’s “trade or commerce among the several States.” In Page v. Work, 290 F.2d 323, 330 (9th Cir. 1961), cert. denied, 368 U.S. 875, 82 S.Ct. 121, 7 L.Ed. 2d 76, the court pointed out that: “ . . . the test of jurisdiction is not that the acts complained of affeet a business engaged in interstate commerce, but that the conduct complained of affects the interstate commerce of such business.” We have already noted Nankin’s “sale of hospital services” is limited to patients of Dr. Archambault who reside in Wayne County. We find that Nankin is not engaged in interstate commerce nor has it demonstrated that its sale of hospital services has any effect on interstate commerce. Assuming Nankin could demonstrate, and it has not, that a significant number of patients reside outside the state, it would still be excluded from interstate commerce since the sale of hospital care is personal and localized in nature. Riggall v. Washington County Medical Society, 249 F.2d 266 (8th Cir. 1957); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir., 1959); Spears Free Clinic and Hospital v. Cleere, 197 F.2d 125 (10th Cir. 1952). Cf. Marston v. Ann Arbor Property Managers Association, 422 F.2d 836 (6th Cir. 1970); Hotel Phillips, Inc. v. Journeymen Barbers, 301 F.2d 443 (8th Cir. 1962); John Kalin Funeral Homes, Inc. v. Fultz, 313 F.Supp. 435 (W.D.Wash., 1970), aff’d, 442 F.2d 1342 (9th Cir. 1971). A second jurisdictional barrier concerns the exception to antitrust liability created by the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. The Act sets forth as policy that: “. . . the continued regulation . by the several States of the business of insurance is in the public interest. . . .” (15 U.S.C. § 1011) To this end, the Act provides that: “The business of insurance . shall be subject to the laws of the several States. . . . ” ■" }, { "docid": "2375071", "title": "", "text": "way by his exclusion from the . staff . . . Whatever effect the alleged conspiracy might have upon interstate commerce in goods purchased by the plaintiff is insubstantial 513 F.2d, at p. 688. And: . even were we to concede . the interstate character of defendants’ business, we fail to perceive the relevance to the plaintiff’s claim that the defendants adopted a plan, that the plan limited or controlled the membership of the . medical staff . . . and that the plan . . . affected the services which the defendants themselves might provide. The facts alleged by the plaintiff cannot support the proposition that his exclusion from the medical staff has affected, or threatens to affect, the defendants, their hospitals, or through them interstate commerce. The facts do not support the existence of the requisite nexus between the defendants’ conduct and interstate commerce. (Emphasis supplied.) 513 F.2d, at p. 688. Accord: Salco Corp. v. General Motors Corp., Buick Motor Division, supra ; Spears Free Clinic & Hospital v. Cleere, 197 F.2d 125 (10th Cir. 1952); Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341 (9th Cir. 1969); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir. 1959). We hold that Bryan’s interstate commerce allegations have no logical nexus with a Sherman Act restraint of interstate trade or commerce; that the Board and its members are not, in an antitrust sense, engaged in interstate trade or commerce since the conduct complained of is entirely of a local character; that nothing contained in Bryan’s complaint does other than indicate that the acts complained of affect a business engaged in interstate commerce; and, finally, that the complained of conduct does not affect the interstate commerce of such business. WE AFFIRM." }, { "docid": "9387731", "title": "", "text": "States v. Yellow Cab Co., supra; Page v. Work, supra; Las Vegas Merchant Plumbers Assn., supra. Plaintiff’s allegations of fact, which it contends support federal jurisdiction or, at a minimum, raise issues of fact for determination by jury, are stated under “Plaintiff’s Contentions on Disputed Facts,” beginning on page 13, of the Pre Trial Order. The allegations are summarized as follows: that plaintiff and defendants perform mortician services upon dead bodies that have come from outside the state or are shipped outside the state after such services are performed; that plaintiff and defendants regularly purchase mortuary supplies, including caskets, embalming fluid, equipment and other items from sources outside the state; that materials used in making caskets in this state come from outside the state; and that morticians in this state regularly and frequently conduct business correspondence by letter, telephone and telegram with persons outside the state. Defendants contend the alleged activities complained of are wholly intrastate and local in nature and have no direct and substantial effect upon interstate commerce so as to bring them within the purview of the Sherman Act. In considering all of the principal authorities (citations in footnote 1), two decisions of the Eighth Circuit Court of Appeals are most comparable in facts to the present case: Elizabeth Hospital v. Richardson, supra, and Riggall v. Washington County Medical Society, 249 F.2d 266 (1957), cert. den. 355 U.S. 954, 78 S.Ct. 540, 2 L.Ed.2d 530 (1958) [cited in Elizabeth], Plaintiff contends Washington State Bowling v. Pacific Lanes impairs the holding of Elizabeth, although Shepard’s discloses no decision to that effect. Analysis of the opinion in that case shows it does not directly or indirectly hold the principles of Elizabeth inapplicable to the particular facts and circumstances of the present case. Elizabeth is not referred to in the Bowling opinion. In Elizabeth the Eighth Circuit said: “We think that the plaintiff’s operation of a hospital, to include rendition of hospital services to some persons who came from outside the state, is no more engaging in interstate commerce than was Dr. Riggall in rendering medical services to persons who" }, { "docid": "11567605", "title": "", "text": "line dividing cases in which the effect upon interstate commerce is sufficient to permit Congress to prohibit particular anticompetitive activity under the commerce clause from those cases in which it is not sufficient. In this area perhaps more than in most, each case must turn on its own facts. Rasmussen v. American Dairy Association, 9th Cir. 1973, 472 F.2d 517, 526, cert. denied, 412 U.S. 950, 93 S.Ct. 3014, 37 L.Ed.2d 1003; Hospital Building Co., supra. Reversed and remanded. . In Its submission to the district court and in its brief to this court plaintiff, St. Bernard, contended that at least one of these “participating” hospitals, the Oschner Foundation, in fact earns a profit from its services. Because of the nature of the district court’s ruling, discussed infra, no finding or opinion was expressed with respect to this contention. Consequently, we express none. . “The test of jurisdiction is not that the act complained of affect a business engaged in interstate commerce but that the conduct complained of affects the interstate commerce of such business.” 290 F.2d at 330. . Nankin Hospital v. Michigan Hospital Service, E.D.Mich.1973, 361 F.Supp. 1199; Doctors, Inc. v. Blue Cross of Greater Philadelphia, E.D.Pa.1973, 360 F.Supp. 693; Hospital Building Co. v. Trustees of Rex Hospital, E.D. N.C.1973, 1973 Trade Cas. ¶ 74,428. . Elizabeth Hospital, Inc. v. Richardson, 8th Cir. 1959, 269 F.2d 167, cert. denied, 361 U.S. 884, 80 S.ct. 155, 4 L.Ed.2d 120; Riggall v. Washington County Medical Society, 8th Cir. 1957, 249 F.2d 266, cert. denied, 355 U.S. 954, 78 S.Ct. 540, 2 L.Ed.2d 530 (1958); Spears Free Clinic and Hospital for Poor Children v. Cleere, 10th Cir. 1952, 197 F.2d 125. . Nor is United States v. Oregon State Medical Society, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978 (1952), to the contrary. There, in a Sherman Act injunction suit brought by the government, the district court had found as fact that “[t]he sale of medical services, by Doctor Sponsored Organizations, as conducted within the State of Oregon, is not trade or commerce within the meaning of Section 1 of" }, { "docid": "2388599", "title": "", "text": "even when it was written placed primary reliance on a series of cases that were no longer valid. . . . “. . . [S]econd . . . the Spears case is . not in accord with the major relevant decisions which have been handed down since it was written. [Burke v. Ford, 389 U. In each of the cases of Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341, 343 (9th Cir. 1969), Lieberthal v. North Country Lanes, Inc., 332 F.2d 269, 271-72 (2d Cir. 1964), Page v. Work, 290 F.2d 323, 330 (9th Cir. 1961), and John Kalin Funeral Home, Inc. v. Fultz, 313 F.Supp. 435, 438-39 (W.D.Wash.1970), aff’d, 442 F. 2d 1342 (9th Cir. 1971) (per curiam), all relied upon by defendants, there was a specific finding that the business involved was totally local in character and did not extend beyond the boundaries of one state. In fact, in the latter two cases, the business activity was confined to a single county within a state. Those cases held that the purchase of out-of-state supplies for an otherwise purely local business will not, without anything more, support Sherman Act jurisdiction. In this case, as previously noted, the activities of plaintiffs and defendants were on a multi-state scale. “No matter how intrastate the objects of anticompetitive conspirators [might be], they must take their victims’ involvement in interstate commerce as they find them.” Lehrman v. Gulf Oil Corporation, 464 F.2d 26, 36 (5th Cir.), cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972). Moreover, the purchase of out-of-state orthodontic supplies was not merely incidental to plaintiffs’ business; plaintiffs allege that the likely impact on the interstate flow of such goods is sufficiently substantial to confer jurisdiction in this case. See Doctors, Inc. v. Blue Cross of Greater Philadelphia, supra, at 53; and St. Bernard General Hospital, Inc. v. Hospital Service Association of New Orleans, Inc., 510 F.2d 1121 (5th Cir. 1975). Cf. Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 513 F.2d 684 (10th Cir. 1975). Accordingly, defendants’ motions to dismiss Counts I and III" }, { "docid": "2388597", "title": "", "text": "the complained of acts, the administration of an Illinois bar review course, occurred in a market located wholly within one state, and that such incidental activities as advertising, and travel into Illinois of non-Illinois lecturers would “not alter the intra-state character of the course itself.” 353 F. Supp. at 36. Accord, Michigan Bar Review Center, Inc. v. Nexus Corp., 1972 Trade Cas. ¶ 73,891 (N.D.Ill.1972). Other cases relied upon by defendants, Nankin Hospital v. Michigan Hospital Service, 361 F.Supp. 1199, 1210 (E.D. Mich.1973), Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167, 170-71 (8th Cir. 1959), RiggaU v. Washington County Medical Society, 249 F.2d 266, 268 (8th Cir. 1957), and Spears Free Clinic and Hospital v. Cleere, 197 F.2d 125, 126 (10th Cir. 1952),' are cases in which the courts held that the rendering of medical services by a single hospital or a single physician, in a single state, was essentially local in character, despite the fact that some patients came from outside the state for treatment. Cf., Hospital Building Co. v. Trustees of Rex Hospital, supra, at 682. Similarly, in Goldfarb v. Virginia State Bar, 497 F.2d 1, 18 (4th Cir.), cert, granted, 419 U.S. 963 (1974), the court found that the practice of law is generally a local service which may, on occasion, only incidentally be utilized by out-of-state residents. In this case, however, neither plaintiffs’ activities, nor defendants’ alleged restraints are confined to one state. Additionally, not only is there substantial interstate travel by USD I students and faculty, but also there is considerable shipment of orthodontic supplies. Moreover, as a legal matter, the hospital line of cases mentioned above has recently been called into question. In Doctors, Inc. v. Blue Cross of Greater Philadelphia, supra, 490 F.2d at 52, the court found the reasoning in those cases, which stemmed from Spears Free Clinic and Hospital v. Cleere, supra, to be defective in two major respects : S. 320 [88 S.Ct. 443, 19 L.Ed.2d 554] (1967) (per curiam); United States v. Employing Plasterers Association, 347 U.S. 186 [74 S.Ct. 452, 98 L.Ed. 618] (1954).]” “First, the [Spears] opinion" }, { "docid": "5152689", "title": "", "text": "funds from out-of-state brokers to the defendants since such funds move in interstate commerce only when a sale of real estate is completed outside New York State by an out-of-state broker. . While a broker must normally look to the seller for the payment of his commission, the purchaser will be liable for the broker’s commission if he employed the broker and agreed, expressly or impliedly, to pay compensation for the services rendered. Grossman v. Herman, 266 N.Y. 249, 253, 194 N.E. 694, 695-96 (1935); Lee v. Woodard, 259 N.Y. 149, 150, 181 N.E. 81 (1932); Donato v. Baltrusaitis, 56 Misc.2d 935, 290 N.Y.S.2d 659, 665 (S.Ct. Queens Co. 1958). . Several courts have held that the interstate commerce requirement of the Sherman Act is not satisfied by the mere movement of people across state lines to utilize particular services. See, e. g., Diversified Brokerage Services, Inc. v. Greater Des Moines Board of Realtors, supra, 521 F.2d at 1346; Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167, 170-71 (8th Cir.), cert. denied, 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959); Spears Free Clinic and Hospital For Poor Children v. Cleere, 197 F.2d 125, 126-27 (10th Cir. 1952). However, other courts, which sustained jurisdiction under the Sherman Act, have regarded the interstate movement of people as a relevant factor when considered along with other factors. See, e. g., United States v. Jack Foley Realty, Inc., supra; Oglesby and Barclift, Inc. v. Metro MLS, Inc., supra; Mazur v. Behrens, supra. . The Indictment also refers to the interstate movement of contracts and other legal documents. It appears that the contracts and other documents in question are related to the interstate movements already considered. Thus, defendants’ conduct will affect the interstate flow of contracts and other documents to the extent that the other interstate movements are affected. . Even if the amount of referral commissions, relocation service commissions, federally guaranteed mortgages, and people moving in interstate commerce actually increased during the years covered by the Indictment, this would not show that defendants’ conduct does not have an effect upon interstate commerce" }, { "docid": "9387733", "title": "", "text": "likewise came from other states. The fact that some of the plaintiff’s patients might travel in interstate commerce does not alter the local character of plaintiff's hospital. If the converse were true, every country store that obtains its goods from or serves customers residing outside the state would be selling in interstate com merce. Uniformly, the Courts have held to the contrary.” (269 F.2d at page 170) In Riggall the Court stated: “As has been observed, plaintiff’s complaint in substance is that the practice of his profession would have been more profitable to him had the defendants not deprived him of membership in the Washington County Medical Society. Plaintiff was not prevented from practicing his profession and the complaint, we think, is wholly lacking in allegations essential to a cause of action under the Sherman Anti-Trust Act.” (249 F.2d at page 270) Both Elizabeth and Riggall were decisions affirming dismissals by the District Court upon jurisdictional grounds. In the State of Washington a county coroner has jurisdiction over dead bodies in his county only in certain situations specified by state statute. Another recently enacted state statute provides that when a person dies without having made prior arrangements for his funeral and mortician services and no one is willing to make such arrangements, the county coroner is to assign the dead body on an equal rotational basis to funeral homes and mortuaries in the county where the body is found. The jurisdiction of Coroner Fultz over dead bodies is limited to Thurston County. The alleged conspiracy as to the statutory rotational system occurred in and necessarily was operative only in Thurston County. Thus, the alleged conspiracy to monopolize and boycott is directed solely at local activities within Thurston County, i.e., the rotation system and mortuary businesses conducted in Thurston County. No broader objectives of conspiracy are alleged, e.g., price fixing, rigged bidding, etc. Spears Free Clinic and Hospital for Poor Children v. Cleere, 197 F.2d 125 (10th Cir. 1952) . Clearly, the activities complained of are purely local and are not so related to interstate commerce as to be a part" }, { "docid": "2378205", "title": "", "text": "private, has undoubtedly moved into a field of intense commercial activity, that such activity is nevertheless, whether it be that of a hospital or a private physician, purely local in character. Such is the holding in Spears Free Clinic and Hospital for Poor Children v. Cleere, 10 Cir., 1952, 197 F.2d 125, which was cited with approval by the Court of Appeals in Riggall v. Washington County Medical Society, supra, 249 F.2d at page 270. As the court said in the Spears case 197 F.2d at page 126: “The practice of the healing arts in Colorado, including chiropractic, is wholly local in character. The alleged conspiracy and the acts alleged to have been done in furtherance thereof had for their purpose .and object the monopolization and restraint of purely local activities. No price fixing or price maintenance for professional or other services was involved. There was no intent to injure, obstruct or restrain interstate or foreign commerce. The mere fact that a fortuitous and incidental effect of such conspiracy and acts may be to reduce the number of persons who will come from ■other states and countries to the Spears Hospital for chiropractic treatments does not create such a relation between interstate and foreign commerce and such local activities as to make them a part of such commerce.” As the court concludes that the decision of the Court of Appeals for the Eighth Circuit is based upon facts essentially identical to the facts presented in this case, the decision of the Court of Appeals is stare decisis and binding upon this court until its decision is reversed, and for that reason it is unnecessary to review further the cases which impel a refusal of jurisdiction in these circumstances, although it may be said that no decision has been cited to the court which would cast doubt upon the decision in the Riggall case as decided by the Court of Appeals. The court, therefore, must find that it has no jurisdiction based upon any claim under the anti-trust acts, and that no cause of action is stated under those acts. Before" }, { "docid": "2388598", "title": "", "text": "supra, at 682. Similarly, in Goldfarb v. Virginia State Bar, 497 F.2d 1, 18 (4th Cir.), cert, granted, 419 U.S. 963 (1974), the court found that the practice of law is generally a local service which may, on occasion, only incidentally be utilized by out-of-state residents. In this case, however, neither plaintiffs’ activities, nor defendants’ alleged restraints are confined to one state. Additionally, not only is there substantial interstate travel by USD I students and faculty, but also there is considerable shipment of orthodontic supplies. Moreover, as a legal matter, the hospital line of cases mentioned above has recently been called into question. In Doctors, Inc. v. Blue Cross of Greater Philadelphia, supra, 490 F.2d at 52, the court found the reasoning in those cases, which stemmed from Spears Free Clinic and Hospital v. Cleere, supra, to be defective in two major respects : S. 320 [88 S.Ct. 443, 19 L.Ed.2d 554] (1967) (per curiam); United States v. Employing Plasterers Association, 347 U.S. 186 [74 S.Ct. 452, 98 L.Ed. 618] (1954).]” “First, the [Spears] opinion even when it was written placed primary reliance on a series of cases that were no longer valid. . . . “. . . [S]econd . . . the Spears case is . not in accord with the major relevant decisions which have been handed down since it was written. [Burke v. Ford, 389 U. In each of the cases of Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341, 343 (9th Cir. 1969), Lieberthal v. North Country Lanes, Inc., 332 F.2d 269, 271-72 (2d Cir. 1964), Page v. Work, 290 F.2d 323, 330 (9th Cir. 1961), and John Kalin Funeral Home, Inc. v. Fultz, 313 F.Supp. 435, 438-39 (W.D.Wash.1970), aff’d, 442 F. 2d 1342 (9th Cir. 1971) (per curiam), all relied upon by defendants, there was a specific finding that the business involved was totally local in character and did not extend beyond the boundaries of one state. In fact, in the latter two cases, the business activity was confined to a single county within a state. Those cases held that" }, { "docid": "9387732", "title": "", "text": "within the purview of the Sherman Act. In considering all of the principal authorities (citations in footnote 1), two decisions of the Eighth Circuit Court of Appeals are most comparable in facts to the present case: Elizabeth Hospital v. Richardson, supra, and Riggall v. Washington County Medical Society, 249 F.2d 266 (1957), cert. den. 355 U.S. 954, 78 S.Ct. 540, 2 L.Ed.2d 530 (1958) [cited in Elizabeth], Plaintiff contends Washington State Bowling v. Pacific Lanes impairs the holding of Elizabeth, although Shepard’s discloses no decision to that effect. Analysis of the opinion in that case shows it does not directly or indirectly hold the principles of Elizabeth inapplicable to the particular facts and circumstances of the present case. Elizabeth is not referred to in the Bowling opinion. In Elizabeth the Eighth Circuit said: “We think that the plaintiff’s operation of a hospital, to include rendition of hospital services to some persons who came from outside the state, is no more engaging in interstate commerce than was Dr. Riggall in rendering medical services to persons who likewise came from other states. The fact that some of the plaintiff’s patients might travel in interstate commerce does not alter the local character of plaintiff's hospital. If the converse were true, every country store that obtains its goods from or serves customers residing outside the state would be selling in interstate com merce. Uniformly, the Courts have held to the contrary.” (269 F.2d at page 170) In Riggall the Court stated: “As has been observed, plaintiff’s complaint in substance is that the practice of his profession would have been more profitable to him had the defendants not deprived him of membership in the Washington County Medical Society. Plaintiff was not prevented from practicing his profession and the complaint, we think, is wholly lacking in allegations essential to a cause of action under the Sherman Anti-Trust Act.” (249 F.2d at page 270) Both Elizabeth and Riggall were decisions affirming dismissals by the District Court upon jurisdictional grounds. In the State of Washington a county coroner has jurisdiction over dead bodies in his county only in" }, { "docid": "11519514", "title": "", "text": "divided into two categories: (1) those in which the activities complained of are wholly intrastate in character; and (2) those in which the activities occur in the course of interstate commerce. Las Vegas Merchant Plumbers Ass’n v. United States, 210 F.2d 732 (9th Cir. 1954), cert. denied, 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645 (1954); United States v. Pennsylvania Refuse Removal Ass’n, D. C., 242 F.Supp. 794 (1965), aff’d 357 F. 2d 806 (3d Cir. 1966), cert. denied, 384 U.S. 961, 86 S.Ct. 1588, 16 L.Ed.2d 674 (1966). Where the activities are of an intrastate character, in order for there to be a Sherman Act violation, it must be shown that the restraint directly and substantially affects interstate commerce. Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2d Cir. 1964); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir. 1959), cert. denied 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959); Spears Free Clinic v. Cleere, 197 F.2d 125 (10th Cir. 1952); Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F.Supp. 176 (N.D.N.Y.1964). Where the activities are interstate in nature, the interstate commerce issue depends upon whether the restraint is a per se violation of the Act, such as price fixing (United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940)) or division of markets (Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899)), or whether the restraint must meet the test of “unreasonableness” (Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911)). Where there is a per se violation, the effect upon interstate commerce follows as a matter of law and is conclusively presumed. Las Vegas Merchant Plumbers Ass’n v. United States, swpra. There need be no showing of the amount of commerce involved and it is no defense that the amount was small. United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209 (1955); Las Vegas Merchant Plumbers Ass’n v. United States, supra; United States" }, { "docid": "744479", "title": "", "text": "other circuits, as well as by other language of the Supreme Court. The jurisdictional analysis in Page v. Work, 9 Cir., 290 F.2d 323 (1961), seems inconsistent with the Ninth Circuit’s most recent decisions, yet Page continues to be cited with approval in those cases. In Page, the complaint alleged that the defendants eliminated competition in legal advertising in Los Angeles County. The ■ court noted that the defendant newspapers bought newsprint from outside the state, carried some national news and advertising and had some out-of-state subscribers. The court nevertheless concluded that since the claimed restraints were “on a purely local level and were wholly directed to [the] local intrastate market,” 290 F.2d at 330, the jurisdictional requirement of the Sherman. Act was not satisfied. The court said, “The test of jurisdiction is not that the acts complained of affect a business engaged in interstate commerce, but that the conduct complained of affects the interstate commerce of such business.” 290 F.2d at 330. In distinguishing a group of other newspaper cases the court said further, “[i]n all the above cases a restraint of interstate commerce was found which was determinative of federal jurisdiction.” 290 F.2d at 331. There is no question in Page that the locus of the restraint was a consideration in determining jurisdiction. See also, Sun Valley Disposal Co. v. Silver State Disposal Co., 9 Cir., 420 F.2d 341 (1969). Other courts have also found jurisdiction absent where interstate activities were alleged where there was no showing that the restraint operated on the interstate commerce. Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 5 Cir., 469 F.2d 416 (1972); Lieberthal v. North County Lanes, Inc., 2 Cir., 332 F.2d 269 (1964); Elizabeth Hospital, Inc. v. Richardson, 8 Cir., 269 F.2d 167, cert. denied, 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959); Saint Anthony-Minneapolis, Inc. v. Red Owl Stores, Inc., 316 F.Supp. 1045 (D.Minn.1970). The Supreme Court has never decided the question of whether a business with out-of-state activities which engages in a local conspiracy to restrain commerce falls within the jurisdiction of the" }, { "docid": "2388596", "title": "", "text": "than by a motion to dismiss . . . .” For purposes of a motion to dismiss, under Cherney, the district court should assume, without expressly deciding, that the conduct charged constituted a restraint of trade for jurisdictional purposes, unless it appears that “the relation of the subject to interstate commerce and its effect upon it are clearly non-existent.” Id.; accord, Gateway Associates, Inc. v. Essex-Costello, Inc., 380 F.Supp. 1089, 1094 (N.D.Ill.1974); cf., Hospital Building Co. v. Trustees of Rex Hospital, 511 F.2d 678, 686, 687 (4th Cir. 1975) (Winter, J., dissenting); Marks Food Corporation v. Barbara Ann Baking Co., 274 F.2d 934, 936 (9th Cir. 1960). After examining the allegations of plaintiffs’ complaint and affidavit, as well as the memoranda of law submitted by the parties, I have concluded that plaintiffs have made a sufficient showing that the jurisdictional requirements have been met to withstand defendants’ motion to dismiss. The cases relied upon by defendants do not dictate a contrary result. In Rallen v. Nexus Corporation, 353 F.Supp. 33 (N.D.Ill.1973), the court found that the complained of acts, the administration of an Illinois bar review course, occurred in a market located wholly within one state, and that such incidental activities as advertising, and travel into Illinois of non-Illinois lecturers would “not alter the intra-state character of the course itself.” 353 F. Supp. at 36. Accord, Michigan Bar Review Center, Inc. v. Nexus Corp., 1972 Trade Cas. ¶ 73,891 (N.D.Ill.1972). Other cases relied upon by defendants, Nankin Hospital v. Michigan Hospital Service, 361 F.Supp. 1199, 1210 (E.D. Mich.1973), Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167, 170-71 (8th Cir. 1959), RiggaU v. Washington County Medical Society, 249 F.2d 266, 268 (8th Cir. 1957), and Spears Free Clinic and Hospital v. Cleere, 197 F.2d 125, 126 (10th Cir. 1952),' are cases in which the courts held that the rendering of medical services by a single hospital or a single physician, in a single state, was essentially local in character, despite the fact that some patients came from outside the state for treatment. Cf., Hospital Building Co. v. Trustees of Rex Hospital," }, { "docid": "2378202", "title": "", "text": "at page 268, where the court said: “It is to be noted that the complaint is confined to plaintiff’s private medical practice. It charges no economic burden on the public by reason of the alleged acts of the defendants. There is no charge that the rejection of plaintiff’s application for membership in the Washington County Medical Society resulted in the raising or fixing of fees charged the public by other physicians. There is no allegation in the complaint remotely suggesting that the acts of defendants cast any burden upon interstate commerce. The mere fact that plaintiff at his location in Arkansas may be treating patients from other states who must travel interstate does not result in practicing his profession in interstate commerce as the transportation of such patients is incidental. The practice of his profession as disclosed by the allegations of his complaint is neither trade nor commerce within Section 1 of the Sherman Anti-Trust Act, nor are there any allegations in the complaint indicating that the actions of defendants here complained of resulted in a monopoly within the provisions of Section 2 of the Act. Plaintiff has not been prevented from practicing his profession, but in the final analysis his complaint is that he could practice it more profitably but for the acts of the defendants. The Sherman Anti-Trust Act was not primarily to protect the individual but to protect the general public economically, and a private party may not recover under the act unless there has been an injury to the general public economically. Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311; Spears Free Clinic and Hospital for Poor Children v. Cleere, 10 Cir., 197 F.2d 125; United States v. Oregon State Medical Society, D.C.Ore., 95 F.Supp. 103; United States v. Oregon State Med. Soc., 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978; Northern California M[onument] D[ealers] Ass’n v. Interment Ass’n, D.C.S.D.Cal., 120 F.Supp. 93; Kolb v. Pacific Maritime Association, D.C.N.D.Cal., 141 F.Supp. 264.” Although the defendants urge that the plaintiff, Elizabeth Hospital, is merely the alter ego of Dr. Frank" }, { "docid": "12353721", "title": "", "text": "1135 (1969). . American Medical Ass’n v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434 (1943). The Court declined to resolve the question of whether the practice of medicine was a “trade” within the meaning of the Sherman Act. What the Court held was that the sale of health insurance was interstate trade and that a conspiracy among doctors to restrict it violated the Sherman Act. . Riggall v. Washington County Medical Soe’y, 249 F.2d 266 (8 Cir. 1957). . Article 1, section 8, clause 3, of the Constitution of the United States vests Congress with the power “[t]o regulate Commerce with foreign Nations, and among the several States . . . . ” Pursuant to that broad grant of power Congress has enacted the Sherman Antitrust Act, 15 U.S.C. §§ 1-7. . Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal .... 15 U.S.C. § 1. . In enacting the Sherman Act “Congress exercised ‘all the power it possessed.’ ” Apex Hosiery Co. v. Leader, 310 U.S. 469, 495, 60 S.Ct. 982, 993, 84 L.Ed. 1311 (1940). Thus, in construing the jurisdictional provisions of the Act we look to the commerce clause for guidance. United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 297-298, 65 S.Ct. 661, 89 L.Ed. 951 (1945). . 355 F.Supp. at 494. . Hotel Phillips, Inc. v. Journeymen Barbers, Hairdressers, Cosmetologists & Proprietors Int’l Union of Amer., 195 F.Supp. 664 (W.D.Mo.1961). . The fact that some of plaintiff’s patients might travel in interstate commerce does not alter the local character of plaintiff’s hospital. If the converse were true, every country store that obtains its goods from or serves customers residing outside the state would be selling in interstate commerce. Uniformly, the courts have held to the contrary. Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167, 170 (8 Cir. 1959); accord, Spears Free Clinic & Hospital For Poor Children v. Cleere, 197 F.2d 125 (10 Cir. 1952); Kallen v. Nexus Corp.," }, { "docid": "11519513", "title": "", "text": "First, they contend that the jurisdictional requirement of interstate commerce was not met in this case and that the judge’s instructions on the issue were in error. Second, they contend that the trial court’s refusal to permit leading questions in cross-examination of one witness denied them their Sixth Amendment right of confrontation. Third, they object to the admission of certain evidence. We consider these contentions in order. INTERSTATE COMMERCE It is a jurisdictional requirement of the Sherman Act that the acts constituting the violation be “in restraint of trade or commerce among the several States.” (15 U.S.C. § 1) In legal parlance, it is said that the restraint must be upon interstate commerce. Appellants contend that the conspiracy fixing the price of one dishwasher is so insignificant that it does not meet the jurisdictional test of interstate commerce. In considering this contention, we must summarize the law applicable to violations of § 1 of the Sherman Act. For purposes of § 1 of the Sherman Act, conspiracies which are in restraint of trade may be divided into two categories: (1) those in which the activities complained of are wholly intrastate in character; and (2) those in which the activities occur in the course of interstate commerce. Las Vegas Merchant Plumbers Ass’n v. United States, 210 F.2d 732 (9th Cir. 1954), cert. denied, 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645 (1954); United States v. Pennsylvania Refuse Removal Ass’n, D. C., 242 F.Supp. 794 (1965), aff’d 357 F. 2d 806 (3d Cir. 1966), cert. denied, 384 U.S. 961, 86 S.Ct. 1588, 16 L.Ed.2d 674 (1966). Where the activities are of an intrastate character, in order for there to be a Sherman Act violation, it must be shown that the restraint directly and substantially affects interstate commerce. Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2d Cir. 1964); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir. 1959), cert. denied 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959); Spears Free Clinic v. Cleere, 197 F.2d 125 (10th Cir. 1952); Prospect Dairy, Inc. v. Dellwood Dairy Co., 237" }, { "docid": "13463214", "title": "", "text": "L.Ed. 978 the Court reviewed a lower court ruling dismissing an action brought to enjoin the Oregon State Medical Society, eight county medical societies, an Oregon corporation engaged in the sale of prepaid medical care, and eight doctors from monopolizing the business of furnishing prepaid medical care on a contract basis. The lower court had found that the defendants’ conduct did not constitute interstate commerce under either the Sherman Act or the Constitution’s commerce clause. .The Supreme Court affirmed, conceding that across-state-line activities of the doctors’ associations had been shown but noting that the necessary nexus between the restraint itself — the allocation of territories within the state by the doctor-sponsored plans — and those activities had not been shown. 343 U.S. at 338, 72 S.Ct. 690. Thus, despite the Court’s concession that “[t]he Government did show that Oregon Physicians Service made a number of payments to out-of-state doctors and hospitals” for services rendered out-of-state, such payments were capable of being characterized as “few, sporadic and incidental,” ■ and the defendants’ business was wholly intrastate. 343 U.S. at 338-39, 72 S.Ct. 690, at 698. In Spears Free Clinic & Hospital v. Cleere, 10 Cir., 197 F.2d 125, a chiropractic hospital sought damages for injuries that allegedly resulted from the conspiracy of the defendants, members of a Colorado medical society, the State Board of Health, and others, “to monopolize the entire practice of the healing arts within the State of Colorado in the medical profession, to the exclusion and restraint of the practice of chiropractic.” Id. at 126. The hospital alleged specifically that it regularly treated patients from out-of-state and from foreign countries and that the defendants had conspired to restrain this trade by preventing the hospital from being licensed and by interfering with its maintenance and operation. Relying on United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010, and Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, we concluded that the defendants’ conduct had “no . . . substantial 'effect on interstate or foreign commerce.” Id. 197 F.2d" } ]

[ { "docid": "22712158", "title": "", "text": "a device need not await the filing of an infringement action in order to test the validity of a competitor’s patent, but may institute his own suit under the Declaratory Judgment Act. Kerotest Mfg. Co. v. C-O-Two Co., 342 U. S., at 185-186. Other decisions of this type involved removal of restrictions on those who would challenge the validity of patents. Two Terms ago in Lear, Inc. v. Adkins, 395 U. S. 653 (1969), we relied on both lines of authority to abrogate the doctrine that in a contract action for unpaid patent royalties the licensee of a patent is estopped from proving “that his licensor was demanding royalties for the use of an idea which was in reality a part of the public domain.” 395 U. S., at 656. The principle that “federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent,” 395 U. S., at 668, found support in Sears and Compco and the first line of cases discussed above. The holding that licensee estoppel was no longer tenable was rooted in the second line of cases eliminating obstacles to suit by those disposed to challenge the validity of a patent. 395 U. S., at 663-668. Moreover, as indicated earlier, we relied on practical considerations that patent licensees “may often be the only individuals with enough economic incentive to challenge the patentability of an inventor’s discovery.” 395 U. S., at 670. To be sure, Lear obviates to some extent the concern that Triplett prompts alleged infringers to pay royalties on patents previously declared invalid rather than to engage in costly litigation when infringement suits are threatened. Lear permits an accused infringer to accept a license, pay royalties for a time, and cease paying when financially able to litigate validity, secure in the knowledge that invalidity may be urged when the patentee-licensor sues for unpaid royalties. Nevertheless, if the claims are in fact invalid and are identical to those invalidated in a previous suit against another party, any royalties actually paid are an unjust increment to" } ]

[ { "docid": "291102", "title": "", "text": "order to eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary. The Panel further finds that centralization of the actions listed on Schedule B would neither serve the convenience of the parties and witnesses nor further the just and efficient conduct of this litigation at this time. Four of these actions are brought solely against Merck and concern its drug Fosamsax. The fifth action, which involves the drug Actonel, is brought against P & G and Aventis. Both Actonel and Fosamax, so-called oral bis-phosphonates, are used in the prevention or treatment of osteoporosis and are available without prescription. Movants have failed to persuade us that any common questions of fact between the actions against Novartis and the actions against the other defendants are sufficiently numerous to justify Section 1407 transfer of the latter group. Alternatives to transfer exist that can minimize whatever possibilities there might be of duplicative discovery and/or inconsistent pretrial rulings. See, e.g., In re Eli Lilly and Company (Cephalexin Monohydrate) Patent Litigation, 446 F.Supp. 242, 244 (Jud.Pan.Mult.Lit.1978); see also Manual for Complex Litigation, Fourth § 20.14 (2004). For the same reasons, the Panel is persuaded that claims against Merck in three Schedule A actions do not share sufficient questions of fact with the claims against Novartis in those actions to warrant inclusion in the MDL-1760 proceedings. We conclude that the Middle District of Tennessee is an appropriate transferee forum for this litigation. The Middle District of Tennessee has 1) pending actions, including putative nationwide class actions, in which pretrial matters have been proceeding; and 2) the endorsement of some plaintiffs and the common defendant, in the alternative. Furthermore, centralization in this forum permits the Panel to effect the Section 1407 assignment to a suggested transferee district that is currently handling few other multi-district litigation dockets. IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the Middle District of Tennessee are transferred to the Middle District of Tennessee and, with the consent of that court, assigned to" }, { "docid": "12321208", "title": "", "text": "ORDER DENYING TRANSFER JOHN G. HEYBURN II, Chairman. Before the entire Panel: This litigation currently consists of three actions each in the Southern District of Iowa and the District of Nebraska, and one action each in the Central District of Illinois, Northern District of Indiana, Northern District of Iowa, and District of Kansas as listed on Schedule A. Before the Panel is a motion brought, pursuant to 28 U.S.C. § 1407, by defendants Tyson Foods, Inc., and Tyson Fresh Meats, Inc. (collectively Tyson) for coordinated or consolidated pretrial proceedings in the District of Kansas of these ten actions. Plaintiffs in all actions oppose the motion. Certain plaintiffs suggested centralization of some or all of the actions in the District of Kansas, District of Nebraska or Southern District of Iowa if the Panel granted the motion over their objections. Plaintiffs in all actions are or were employed at a Tyson beef or pork processing facility. Plaintiffs allege that Tyson has violated the overtime provision of the Fair Labor Standards Act and parallel state laws by failing to compensate employees for, inter alia, time spent putting on and taking off sanitary and protective clothing worn while performing productive work. On the basis of the papers filed and hearing session held, we are not persuaded that Section 1407 centralization would serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation. Discovery is likely to be plant-specific and proceed on a plant-by-plant basis. Moreover, the actions do not involve overlapping classes, and the actions are at somewhat different procedural stages. The proponents of centralization have failed to convince us that any common questions of fact among these actions are sufficiently complex and/or numerous to justify Section 1407 transfer at this time. Counsel in all actions can avail themselves of alternatives to transfer that may minimize whatever possibilities there might be of duplicative discovery and/or inconsistent pretrial rulings. See, e.g., In re Eli Lilly and Co. (Cephalexin Monohydrate) Patent Litigation, 446 F.Supp. 242, 244 (J.P.M.L.1978); see also Manual for Complex Litigation, Fourth, § 20.14 (2004). IT IS" }, { "docid": "21997976", "title": "", "text": "All plaintiffs oppose transfer. We find insufficient basis for transfer under Section 1407 and, accordingly, deny the motion. Defendant Fotomat contends that these actions share common questions of fact concerning its pricing and merchandising policies and its business relations with the franchisees. Thus, it argues that transfer of all actions to a single district is necessary in order to prevent duplicative discovery and the possibility of inconsistent pretrial decisions. Frankly, we are simply not persuaded by defendant’s arguments and, instead, are inclined to agree with plaintiffs’ contention that the various complaints raise factual issues predominantly unique to each plaintiff’s relationship with defendant, notwithstanding the similarity of the legal issues. But even assuming that some common factual nexus exists among these actions, we are satisfied that with respect to this particular litigation the overall convenience of the parties and witnesses and the just and efficient conduct of the litigation will not necessarily be enhanced by a Section 1407 transfer. Discovery directed toward each plaintiff will be unique whether or not we transfer these actions. And any possibility of duplicative discovery relating to defendant Fotomat can easily be avoided since plaintiffs represented to us that they have already embarked on coordinated discovery efforts and will continue to do so whenever the need arises. Specifically, plaintiffs informed us that they have planned for joint examination of defendant’s records. Also, if there is ever any mutual need for a particular deposition, we suggest that plaintiffs file notices of that deposition in all three district courts involved, thereby making it applicable in each jurisdiction. Moreover, the parties could stipulate that all discovery may be used in every action, which seems especially workable here because all parties have expressed a willingness to streamline pretrial proceedings. Thus, suitable alternatives to Section 1407 transfer are available. Furthermore, relatively few actions are involved in this litigation and counsel advise us that the filing of additional actions is unlikely. Our denial of transfer, however, is without prejudice to the right of any party to seek Section 1407 treatment at a later time, should additional actions be filed. See In re" }, { "docid": "8018525", "title": "", "text": "a danger of duplicative discovery and conflicting rulings on pretrial matters. We find these arguments unpersuasive. Although the scope of the complaint in the Southern District of Texas action is somewhat unclear because of the recent decision concerning the class action allegations in that complaint, we recognize that the two actions before us may at least share some questions of fact concerning TI’s alleged employment discrimination on the basis of national origin against Spanish-surnamed Americans. Nevertheless, only two actions are involved here and we are not convinced that these common factual questions are sufficiently complex or that the accompanying discovery on those issues will be so time consuming as to justify transfer under Section 1407. See In re Southern Railway Employment Practices Litigation, 441 F.Supp. 926 (Jud.Pan.Mult.Lit., filed December 1, 1977); In re Scotch Whiskey, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit.1969). We observe that suitable alternatives to Section 1407 transfer are available to all parties in this litigation, should the need for coordination between the two actions arise. Concerning the possibility of duplicative discovery, for example, notices for a particular deposition could be filed in both actions, thereby making the deposition applicable in each action; the parties could seek to agree upon a stipulation that all discovery relevant to both actions may be used in both actions; and any party could seek orders from the two courts directing the parties to coordinate their pretrial efforts. See In re Commercial Lighting Products, Inc. Contract Litigation, 415 F.Supp. 392, 393 (Jud.Pan.Mult.Lit.1976). See also Manual for Complex Litigation, Part I, § 3.11 (rev.ed.1977). In addition, consultation and cooperation between the two concerned district courts, if deemed appropriate by those courts, coupled with the cooperation of the parties, would be sufficient to minimize the possibility of conflicting pretrial rulings. See In re Southern Railway Employment Practices Litigation, supra, 441 F.Supp. at 926. IT IS THEREFORE ORDERED that the motion to transfer the actions listed on the following Schedule A be, and the same hereby is, DENIED. SGHEnm.E a Northern District of Texas Civil Action No. Equal Employment Opportunity Com- CA3-75-1093-G mission v. Texas Instruments, Inc." }, { "docid": "7641385", "title": "", "text": "544 (Jud.Pan.Mult.Lit.1969). Voluntary cooperation among the parties and the two involved courts to share any common aspects of discovery would serve as a suitable alternative to transfer, the opponents contend. We find these arguments unpersuasive. These two actions arise from the same factual situation and share numerous complex questions of fact concerning the financial condition and the operation of the Utility Authority and concerning the allegedly concerted activities of the various defendants in connection with the distribution and sale of the bonds. Discovery on these complex factual questions will be time-consuming. Transfer under Section 1407 is thus necessary, even though only two actions are involved, in order to prevent duplicative pretrial proceedings and eliminate the possibility of inconsistent pretrial rulings. See In re Ascot Oils, Inc. Securities Litigation, 433 F.Supp. 1118, 1120 (Jud.Pan.Mult.Lit.1977). See generally In re Scotch Whiskey Antitrust Litigation, supra, 299 F.Supp. at 544. Because these actions have been brought on behalf of the same plaintiff class, we emphasize that it is desirable to have a single judge oversee the class action issues in both actions to avoid duplicative efforts in this area. While voluntary coordination of discovery efforts among parties and their counsel is always commendable, transfer of these actions to a single district under Section 1407 will ensure the streamlining of discovery and all other pretrial proceedings as well. See In re Ascot Oils, Inc. Securities Litigation, supra, 433 F.Supp. at 1120. The transferee judge, of course, has the broad discretion to design a pretrial program that will allow discovery on any issues unique to either action to proceed concurrently with the common discovery. See In re Republic National-Realty Equities Securities Litigation, 382 F.Supp. 1403, 1405-06 (Jud.Pan.Mult. Lit.1974). The actions before us are pending in adjacent districts and either district could be described as an appropriate transfer forum for this litigation. On balance, however, we are of the view that the Western District of Oklahoma is preferable. The record before us reveals that the parties, anticipated witnesses and relevant documents in these actions are located throughout Oklahoma and in other states. Since the situs of the" }, { "docid": "19789792", "title": "", "text": "motion without prejudice to the right of any party to move for transfer at a later time. Since each defendant challenges the validity of the Bourns patent, plaintiffs contend that transfer of all actions to the Northern District of Illinois is necessary to prevent duplication of discov ery concerning that common issue, addition, plaintiffs argue that the question of whether they are collaterally es-topped, as a result of the decision in Bourns, Inc. v. Dale Electronics, Inc., supra, from asserting certain claims against these defendants is an issue common to all actions and should be decided by a single judge. Thus, they also urge Section 1407 treatment of this litigation to eliminate the possibility of inconsistent rulings among the potential transferor courts. In Because of the posture of the Allen-Bradley action in Illinois, we are not convinced that transfer of these actions for coordinated or consolidated pretrial proceedings will serve the convenience of the parties and witnesses nor promote the just and efficient conduct of the litigation. It appears from the papers filed before the Panel and oral argument at the hearing held to consider plaintiffs’ motion that discovery in the Allen-Bradley action involving the common issues of patent validity and enforceability is complete and that commencement of trial before the Illinois court is imminent. As a result of the collateral estoppel doctrine enunciated by the Supreme Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), we have consistently denied transfer of actions in patent litigation where one of the actions was proceeding expeditiously toward trial on the common issue of validity. In re Disposable Diaper Patent Validity Litigation, 362 F.Supp. 567 (Jud.Pan.Mult.Lit. 1973); In re Lehman Equipment Co. Patent Infringement Litigation, 360 F.Supp. 1402 (Jud.Pan.Mult.Lit. 1973). Moreover, defendant Allen-Bradley Co. has a motion pending in the Illinois action pursuant to Rule 42(b) of the Federal Rules of Civil Procedure seeking a separate trial on the sole issue of whether the unadjudicated patent claims in Bourns, Inc. v. Dale Electronics, Inc., supra, define an invention separate and distinct from" }, { "docid": "18902907", "title": "", "text": "parties and their witnesses. When only a minimal number of actions are under consideration for transfer under Section 1407, the moving party bears a strong burden to show that the common questions of fact are so complex and the accompanying discovery so time-consuming as to serve the overall convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. See In re Scotch Whiskey Antitrust Litigation, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969). Only two relatively simple contract and tort actions are before us. While we recognize that these actions share common questions of fact, we are not persuaded that the common factual questions are complex enough to warrant transfer. Id. Defendants, and plaintiff as well, can take certain measures in order to avoid duplicative discovery. For example, notices for a particular deposition could be filed in both the Michigan and Indiana district courts, thereby making the deposition applicable in each jurisdiction; defendants could seek a stipulation among the parties that all discovery may be used in both actions; and defendants could seek orders from the two courts directing the parties to coordinate their pretrial efforts. See also Manual for Complex Litigation, Part I, § 3.11 (rev. ed. 1973). Thus, suitable alternatives to transfer under Section 1407 are available to all parties in this litigation. IT IS THEREFORE ORDERED that the motion pursuant to 28 U.S.C. § 1407 to transfer the action listed on the following Schedule A be, and the same hereby is, DENIED. SCHEDULE A Eastern District of Michigan Commercial Lighting Products, Inc. Civil Action v. Industrial Lighting Products Co., No. 571704 et al. Southern District of Indiana Commercial Lighting Products, Inc. Civil Action v. Industrial Lighting Products Co., No. IP75-655-C et al." }, { "docid": "2503338", "title": "", "text": "oppose transfer. We find that although these actions may share some common questions of fact, transfer would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of the actions. Accordingly, we deny transfer. Defendant Luminex contends, in favor of transfer, that the three actions involve identical questions of fact concerning the condition of Lot 128 when it was marketed. Luminex maintains that transfer of these actions to a single district for coordinated or consolidated pretrial proceedings will avoid duplicative discovery relating to Lot 128 and will otherwise prevent inconsistent pretrial proceedings. Although these three actions may share some questions of fact relating to the condition of Lot 128 and to other aspects of Luminex’s manufacturing process, we are not persuaded that these factual questions are complex enough to justify transfer under Section 1407. See In re Scotch Whiskey, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969). Moreover, as movant concedes, these actions involve significant individual factual questions on the issue of liability con cerning the condition of the particular lens used by each plaintiff. Transcript at 5-6. In addition, pretrial proceedings in the action pending in the Western District of Louisiana are well advanced, and it appears that the action will be ready for trial soon. The present posture of that action is an additional reason why transfer of the actions before us would neither serve the convenience of the parties and witnesses nor promote the just and efficient conduct of the actions. See In re Asbestos and Asbestos Insulation Material Products Liability Litigation, 431 F.Supp. 906, 910 (Jud.Pan.Mult.Lit., 1977); In re Braniff Airways, Inc. Employment Practices Litigation, 411 F.Supp. 798, 800 (Jud.Pan.Mult.Lit.1976). IT IS THEREFORE ORDERED that transfer of the actions listed on the following Schedule A be, and the same hereby is, DENIED. SCHEDULE A District of Montana Ellen Jones v. Luminex International, Inc. Civil Action No. 76-67-BLG John Herzog v. Luminex International, Inc. Civil Action No. 76-68-BLG Western District of Louisiana Clara E. Shaddix v. Luminex International, Inc. Civil Action No. CI760647 Judges Becker and Lord took no part in the" }, { "docid": "8697672", "title": "", "text": "We find these arguments unpersuasive. Only two actions are involved here. Although we recognize that these actions involve common questions of fact, we are not convinced that those common factual questions are sufficiently complex or that the accompanying discovery on those issues will be so time consuming as to justify transfer under Section 1407. See In re Scotch Whiskey, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969). In addition, we recognize that the classes certified in the Ohio action and the class for which certification is sought in the Kentucky action overlap. We are convinced, nevertheless, that the circumstances of this litigation do not warrant transfer and that communication and cooperation between the two concerned district courts, if deemed appropriate by those courts, coupled with the cooperation of the parties, would be sufficient to prevent any duplicative discovery and minimize the possibility of conflicting class determinations or other pretrial rulings. See In re Westinghouse Electric Corporation Employment Discrimination Litigation, 438 F.Supp. 937, 939 (Jud. Pan.Mult.Lit., filed October 12, 1977); Manual For Complex Litigation, Part I, § 5.40 (rev. ed. 1977). See also In re Pan American World Airways, Inc. Maternity Leave Policies Litigation, 414 F.Supp. 1232, 1234 (Jud.Pan.Mult.Lit.1976). Another factor weighing against transfer is the relative pretrial status of the two actions. The Ohio action has been pending for over three years and considerable pretrial proceedings have occurred in that action. In contrast, the Kentucky action has been filed recently and pretrial proceedings are in the early stages. Therefore, the just and efficient conduct of each action can best be furthered, and the convenience of the parties and witnesses can best be served, by leaving the actions in their respective districts. See In re Braniff Airways, Inc. Employment Practices Litigation, 411 F.Supp. 798, 800 (Jud.Pan.Mult.Lit.1976). IT IS THEREFORE ORDERED that the motion to transfer the actions listed on the following Schedule A be, and the same hereby is, DENIED. SCHEDULE A Eastern District of Kentucky James L. Stallworth, et al. v. South- Civil Action ern Railway System, et al. No. 76-180 Southern District of Ohio Mzell Williams v. Southern Railway Civil Action" }, { "docid": "22275488", "title": "", "text": "associations and four officials of the AMA were also joined as defendants in Wilk, while four New York medical associations and an official of one of them were joined in New York. . Subsequent protective orders have been entered as well, but they deal primarily with discovery from third parties, and are not the subject of this appeal. . The major purposes of consolidating or coordinating pre-trial proceedings under § 1407 is to “eliminate the possibilities of duplicative discovery and inconsistent pre-trial rulings, and thereby conserve the efforts of the parties and the judiciary”. In re Amerada Hess Corporation Antitrust Litigation, 395 F.Supp. 1404 (J.P.M.L.1975). . The Panel stated We observe that suitable alternatives to Section 1407 transfer are available in order to minimize the possibility of duplicative discovery. For example, the parties may request from the appropriate district courts that discovery completed in any action and relevant to one or more of the other actions be made applicable to those actions; or the parties could seek to agree upon a stipulation that any discovery relevant to more than one action may be used in all those actions. See also In re The Upjohn Company Antibiotic Cleocin Products Liability Litigation, 81 F.R.D. 482 (E.D.Mich.1979); Manual For Complex Litigation, Parts I and II, § 3.11 (rev. ed. 1977). 483 F.Supp. 813. . In its order denying the motion of the State of New York for modification of the protective order, the district court, in part, relied on the fact that, “The cited suggestions made by the Judicial Panel on Multidistrict Litigation cannot reasonably be construed as mandating that such be permitted.” (Emphasis added). Wilk v. American Medical Association, [1980-2] Trade Reg.Rep. (2 Trade Cas.) (CCH) 63,348 (N.D.Ill.1980). As a matter of policy, the Judicial Panel on Multidistrict Litigation construes strictly its statutory authority. There is no reported decision in which the Panel has issued a mandate to a district court, except to transfer or to remand a case. . Our decision on the merits may require the district court to decide whether certain parts of the Wilk discovery are either irrelevant" }, { "docid": "21997977", "title": "", "text": "possibility of duplicative discovery relating to defendant Fotomat can easily be avoided since plaintiffs represented to us that they have already embarked on coordinated discovery efforts and will continue to do so whenever the need arises. Specifically, plaintiffs informed us that they have planned for joint examination of defendant’s records. Also, if there is ever any mutual need for a particular deposition, we suggest that plaintiffs file notices of that deposition in all three district courts involved, thereby making it applicable in each jurisdiction. Moreover, the parties could stipulate that all discovery may be used in every action, which seems especially workable here because all parties have expressed a willingness to streamline pretrial proceedings. Thus, suitable alternatives to Section 1407 transfer are available. Furthermore, relatively few actions are involved in this litigation and counsel advise us that the filing of additional actions is unlikely. Our denial of transfer, however, is without prejudice to the right of any party to seek Section 1407 treatment at a later time, should additional actions be filed. See In re SCM Photocopy Paper Antitrust Litigation, 305 F.Supp. 60, 62 (Jud.Pan.Mult.Lit. 1969); In re Trucking Industry Employment Practices Litigation, 384 F. Supp. 614, 616 (Jud.Pan.Mult.Lit.1974). It is therefore ordered that the motion to transfer the actions listed on the following Schedule A be, and the same hereby is, denied without prejudice to the right of any party to move for transfer at a later date, should additional actions be filed. SCHEDULE A Southern District of Indiana Photovest Corp. v. Fotomat Corp. Civil Action No. IP — 74—705—C Southern District of California James C. Glover, et al. v. Fotomat Corp. Civil Action No. 74 — 539—E Western District of Missouri Arthur E. Stutz, et al. v. Fotomat Corp. Civil Action No. 75CV59-W-2 Donald M. Ogilvie v. Fotomat Corp. Civil Action No. 75CV60-W-1 Griesedieck Enterprises, No. 1, Inc., et al: v. Fotomat Corp. Civil Action No. 75CV61 — W—2" }, { "docid": "22275487", "title": "", "text": "at 813, the State is presumptively entitled to access to all of the Wilk discovery on the same terms as the Wilk plaintiffs. The right to move for access to specific Wilk discovery demonstrably relevant to the New York action, accorded the State by the district court’s order, is of small utility to the intervenor. If counsel for New York knew exactly what documents were relevant to that suit, he would not have needed to request modification of the Wilk protective order at all; he could simply have made a discovery request for those documents before the New York court. Hence, on remand, the burden must be on the parties opposing modification to establish that particular discovery materials in Wilk would be immune from eventual discovery in the New York action, either by irrelevance or privilege. The decision of the district court is vacated, and this case is remanded for proceedings in conformity with this opinion. . Nine national medical associations were originally named as defendants in both Wilk and New York. Two Illinois medical associations and four officials of the AMA were also joined as defendants in Wilk, while four New York medical associations and an official of one of them were joined in New York. . Subsequent protective orders have been entered as well, but they deal primarily with discovery from third parties, and are not the subject of this appeal. . The major purposes of consolidating or coordinating pre-trial proceedings under § 1407 is to “eliminate the possibilities of duplicative discovery and inconsistent pre-trial rulings, and thereby conserve the efforts of the parties and the judiciary”. In re Amerada Hess Corporation Antitrust Litigation, 395 F.Supp. 1404 (J.P.M.L.1975). . The Panel stated We observe that suitable alternatives to Section 1407 transfer are available in order to minimize the possibility of duplicative discovery. For example, the parties may request from the appropriate district courts that discovery completed in any action and relevant to one or more of the other actions be made applicable to those actions; or the parties could seek to agree upon a stipulation that any discovery" }, { "docid": "8697671", "title": "", "text": "in the Kentucky action have moved, pursuant to 28 U.S.C. § 1407, for transfer of the Kentucky action to the Southern District of Ohio for coordinated or consolidated pretrial proceedings with the Ohio action. The named plaintiff in the Ohio action favors transfer. All defendants oppose transfer. We conclude that transfer under Section 1407 would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of this litigation, and, accordingly, we deny the motion to transfer. Plaintiffs in the Kentucky action contend that these actions share numerous complex questions of fact relating to the hiring, promotion, training, testing and seniority practices of the CNO & TP and/or the Southern, and the acceptance by the UTU of an inadequate and discriminatory hiring system for minorities. These plaintiffs also assert that the classes certified in the Ohio action and the class for which representation is sought in the Kentucky action overlap. Therefore, they maintain, transfer is necessary to avoid duplicative discovery and to prevent inconsistent rulings on class action issues. We find these arguments unpersuasive. Only two actions are involved here. Although we recognize that these actions involve common questions of fact, we are not convinced that those common factual questions are sufficiently complex or that the accompanying discovery on those issues will be so time consuming as to justify transfer under Section 1407. See In re Scotch Whiskey, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969). In addition, we recognize that the classes certified in the Ohio action and the class for which certification is sought in the Kentucky action overlap. We are convinced, nevertheless, that the circumstances of this litigation do not warrant transfer and that communication and cooperation between the two concerned district courts, if deemed appropriate by those courts, coupled with the cooperation of the parties, would be sufficient to prevent any duplicative discovery and minimize the possibility of conflicting class determinations or other pretrial rulings. See In re Westinghouse Electric Corporation Employment Discrimination Litigation, 438 F.Supp. 937, 939 (Jud. Pan.Mult.Lit., filed October 12, 1977); Manual For Complex Litigation, Part I, § 5.40" }, { "docid": "8018524", "title": "", "text": "the following forms of employment discrimination at its Dallas and Austin, Texas facilities: (1) discrimination on the basis of race against Blacks through hiring, promotion and discharge; (2) discrimination on the basis of sex against males in hiring and in the maintenance of sex-segregated job classifications; (3) promotion discrimination on the basis of national origin against Spanish-surnamed Americans; and (4) discrimination against females with respect to maternity leave and benefits policy. Plaintiff in the Southern District of Texas action moves the Panel for an order pursuant to 28 U.S.C. § 1407 transferring that action to the Northern District of Texas for coordinated or consolidated pretrial proceedings with the action pending there. TI opposes transfer. We conclude that transfer under Section 1407 would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of this litigation and, accordingly, we deny the motion to transfer. Movant argues that these actions share numerous questions of fact concerning widespread employment discrimination by TI. Thus, movant asserts, absent Section 1407 proceedings, there is a danger of duplicative discovery and conflicting rulings on pretrial matters. We find these arguments unpersuasive. Although the scope of the complaint in the Southern District of Texas action is somewhat unclear because of the recent decision concerning the class action allegations in that complaint, we recognize that the two actions before us may at least share some questions of fact concerning TI’s alleged employment discrimination on the basis of national origin against Spanish-surnamed Americans. Nevertheless, only two actions are involved here and we are not convinced that these common factual questions are sufficiently complex or that the accompanying discovery on those issues will be so time consuming as to justify transfer under Section 1407. See In re Southern Railway Employment Practices Litigation, 441 F.Supp. 926 (Jud.Pan.Mult.Lit., filed December 1, 1977); In re Scotch Whiskey, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit.1969). We observe that suitable alternatives to Section 1407 transfer are available to all parties in this litigation, should the need for coordination between the two actions arise. Concerning the possibility of duplicative discovery, for example," }, { "docid": "2503337", "title": "", "text": "The infections allegedly were caused by a fungus in the solution in which each lens was contained and/or a fungus in the lens itself. The three lenses and the solution in which each lens was contained were purportedly manufactured as part of Luminex Lot No. 128. The Montana plaintiffs charge Luminex with negligence in marketing Lot 128 in a contaminated condition and in failing to test Lot 128 adequately for contamination. Additional counts for relief in the Montana actions are based on the principles of strict liability, breach of express and implied warranties, and misrepresentation of the condition of Lot 128 when sold. Plaintiff in the Louisiana action alleges that Luminex was negligent in designing, manufacturing and/or marketing defective intraocular products, in failing to test the products adequately and/or in failing adequately to warn of the dangers involved in using the products. Luminex moves the Panel for transfer of the three actions to the Central District of California pursuant to 28 U.S.C. § 1407 for coordinated or consolidated pretrial proceedings. Plaintiffs in the three actions oppose transfer. We find that although these actions may share some common questions of fact, transfer would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of the actions. Accordingly, we deny transfer. Defendant Luminex contends, in favor of transfer, that the three actions involve identical questions of fact concerning the condition of Lot 128 when it was marketed. Luminex maintains that transfer of these actions to a single district for coordinated or consolidated pretrial proceedings will avoid duplicative discovery relating to Lot 128 and will otherwise prevent inconsistent pretrial proceedings. Although these three actions may share some questions of fact relating to the condition of Lot 128 and to other aspects of Luminex’s manufacturing process, we are not persuaded that these factual questions are complex enough to justify transfer under Section 1407. See In re Scotch Whiskey, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969). Moreover, as movant concedes, these actions involve significant individual factual questions on the issue of liability con cerning the condition of the particular" }, { "docid": "19295264", "title": "", "text": "to state a claim. These motions have been briefed and oral argument has been requested. E. F. Hutton argues that the disposition of these motions could have a substantial impact on the eventual scope of the issues in Bouch-ard. We find the arguments in opposition to transfer unpersuasive. These four actions share complex questions of fact concerning the financial condition of CORCO, the adequacy of disclosure of that financial condition to the public, and TESORO’s involvement in any questionable non-disclosure of that condition after TESORO assumed control of CORCO through the 1975 tender offer. Though Joseph is brought on behalf of TESORO shareholders, the claims asserted in that action are based on TESORO’s investment in CORCO and, like the other three actions, will necessitate substantial inquiry into the financial condition of COR-CO and the management of CORCO. Our finding of substantial common questions of fact among these four actions is augmented by the presence of nine common defendants, including TESORO, in all four actions. Transfer under Section 1407 is thus necessary to prevent duplicative pretrial proceedings and eliminate the possibility of inconsistent pretrial rulings. See In re Am tel, Inc. Securities Litigation, 447 F.Supp. 466, 466-67 (Jud.Pan.Mult.Lit.1978). While voluntary coordination of discovery efforts among parties and their counsel is always commendable, transfer of these actions to a single district under Section 1407 will ensure the streamlining of discovery and all other pretrial proceedings as well. See In re First National Bank, Heavener, Oklahoma (First Mortgage Revenue Bonds) Securities Litigation, 451 F.Supp. 995, 997 (Jud.Pan.Mult.Lit.1978). We note that each opponent of transfer is a party in only one action, and that it is not uncommon for such parties to oppose inclusion in Section 1407 proceedings. But the Panel must consider the interests of all parties, and must consider multidistrict litigation as a whole in the light of the purposes of Section 1407. See In re Library Editions of Children’s Books, 297 F.Supp. 385, 386 (Jud.Pan.Mult.Lit. 1968). The transferee judge, of course, has the broad discretion to design a pretrial program that will allow discovery on any issues unique to any action" }, { "docid": "19789793", "title": "", "text": "Panel and oral argument at the hearing held to consider plaintiffs’ motion that discovery in the Allen-Bradley action involving the common issues of patent validity and enforceability is complete and that commencement of trial before the Illinois court is imminent. As a result of the collateral estoppel doctrine enunciated by the Supreme Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), we have consistently denied transfer of actions in patent litigation where one of the actions was proceeding expeditiously toward trial on the common issue of validity. In re Disposable Diaper Patent Validity Litigation, 362 F.Supp. 567 (Jud.Pan.Mult.Lit. 1973); In re Lehman Equipment Co. Patent Infringement Litigation, 360 F.Supp. 1402 (Jud.Pan.Mult.Lit. 1973). Moreover, defendant Allen-Bradley Co. has a motion pending in the Illinois action pursuant to Rule 42(b) of the Federal Rules of Civil Procedure seeking a separate trial on the sole issue of whether the unadjudicated patent claims in Bourns, Inc. v. Dale Electronics, Inc., supra, define an invention separate and distinct from that defined in the claims previously adjudicated in that action. If defendant’s motion is granted and defendant prevails on the merits, the decision of the Illinois court could possibly favor the other defendants in their respective actions and obviate the necessity for any further pretrial discovery. Thus, we are not persuaded that the statutory criteria embodied within Section 1407 have been met at this time and are satisfied that suitable alternatives to transfer exist. Nonetheless, our denial of transfer is without prejudice to any party’s right to seek Section 1407 treatment if it feels that future circumstances so require. It is therefore ordered that the motion to transfer the actions listed on the attached Schedule A be, and the same hereby is, denied, without prejudice to the right of any party to move for transfer at a later time. SCHEDULE A District of Rhode Island Bourns, Inc., et al. v. Amperex Electronics Corp. Civil Action No. 74-121 District of Massachusetts Bourns, Inc., et al. v. Carter Manufacturing Corp. Civil Action No. 74 — 2025 —" }, { "docid": "18902906", "title": "", "text": "that the five defendants in that action engaged in a conspiracy to wrongfully induce other Commercial sales representatives to breach their contracts with Commercial. All defendants move the Panel for an order transferring the Indiana action to the Eastern District of Michigan for coordinated or consolidated pretrial proceedings, pursuant to 28 U.S.C. § 1407, with the action pending in that district. Commercial opposes the motion. We find insufficient basis for transfer under Section 1407 and, accordingly, deny the motion. Movants contend that transfer is necessary because the two actions share common factual questions relating to what Industrial and Nelson did, what the sales representatives did and whether the acts of Industrial and Nelson induced the acts of the sales representatives. Movants maintain that except for any additional issues concerning the alleged involvement of Abrams, Blade and Davis in attempts to attract other representatives away from Commercial, all the essential factual questions raised in the Indiana action are involved in the Michigan action. Thus, they assert, transfer will avoid duplicative discovery and unnecessary inconvenience to the parties and their witnesses. When only a minimal number of actions are under consideration for transfer under Section 1407, the moving party bears a strong burden to show that the common questions of fact are so complex and the accompanying discovery so time-consuming as to serve the overall convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. See In re Scotch Whiskey Antitrust Litigation, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit. 1969). Only two relatively simple contract and tort actions are before us. While we recognize that these actions share common questions of fact, we are not persuaded that the common factual questions are complex enough to warrant transfer. Id. Defendants, and plaintiff as well, can take certain measures in order to avoid duplicative discovery. For example, notices for a particular deposition could be filed in both the Michigan and Indiana district courts, thereby making the deposition applicable in each jurisdiction; defendants could seek a stipulation among the parties that all discovery may be used in both actions; and defendants" }, { "docid": "7641384", "title": "", "text": "transfer. In the event transfer is ordered, the opponents of transfer favor the Western District of Oklahoma as the transferee forum. We find that these actions involve common questions of fact and that transfer of the action pending in the Eastern District of Oklahoma to the Western District of Oklahoma for coordinated or consolidated pretrial proceedings with the action pending in that district will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The opponents of transfer admit that these actions involve common questions of fact, but they assert that substantial individual questions of fact concerning the alleged liability of the Ponca City bank in its unique capacity as trustee for the bonds are involved in the Western Oklahoma action. The opponents also maintain that the two actions before the Panel are not exceptional cases, that the issues involved are not unduly complex and that transfer should therefore be denied in accordance with the principles enunciated in In re Scotch Whiskey Antitrust Litigation, 299 F.Supp. 543, 544 (Jud.Pan.Mult.Lit.1969). Voluntary cooperation among the parties and the two involved courts to share any common aspects of discovery would serve as a suitable alternative to transfer, the opponents contend. We find these arguments unpersuasive. These two actions arise from the same factual situation and share numerous complex questions of fact concerning the financial condition and the operation of the Utility Authority and concerning the allegedly concerted activities of the various defendants in connection with the distribution and sale of the bonds. Discovery on these complex factual questions will be time-consuming. Transfer under Section 1407 is thus necessary, even though only two actions are involved, in order to prevent duplicative pretrial proceedings and eliminate the possibility of inconsistent pretrial rulings. See In re Ascot Oils, Inc. Securities Litigation, 433 F.Supp. 1118, 1120 (Jud.Pan.Mult.Lit.1977). See generally In re Scotch Whiskey Antitrust Litigation, supra, 299 F.Supp. at 544. Because these actions have been brought on behalf of the same plaintiff class, we emphasize that it is desirable to have a single judge oversee the class action issues" }, { "docid": "2204534", "title": "", "text": "OPINION AND ORDER PER CURIAM. This litigation consists of two actions: one in the District of Massachusetts and the other in the Eastern District of Michigan. In the Massachusetts action Kollmorgen Corporation is seeking a declaratory judgment that a patent owned by Shipley Company concerning a composition used in the process of coating plastic surfaces with metal is invalid and not infringed by Kollmorgen or any of its licensees. Kollmorgen also alleges that defendant Shipley has violated the federal antitrust laws. Shipley has counterclaimed charging Kollmorgen with infringement of the patent and inducing others to infringe the patent through its licensing activities. Shipley also seeks to have certain Kollmorgen patents declared invalid and alleges that Kollmorgen violated the federal antitrust laws, engaged in unfair competition and was unjustly enriched. The Michigan action is brought by Shipley against Oxy Metal Finishing Corporation for alleged infringement of the same Shipley patent involved in the Massachusetts action. Oxy Metal, a patent licensee of Kollmorgen, has raised the affirmative defense that the Shipley patent is invalid. Shipley moves the Panel for an order transferring the Michigan action to the District of Massachusetts for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the action already pending there. Oxy Metal and Kollmorgen oppose transfer. We find insufficient basis for transfer under Section 1407 and, accordingly, deny the motion. Movant Shipley contends that the issue of validity of the Shipley patent is common to both actions and that transfer is necessary in order to avoid dupli cation of discovery. We agree that the discovery regarding the issue of patent validity will be, for the most part, common to both actions. But we find that with respect to this particular litigation the overall convenience to the parties and witnesses and the just and efficient conduct of the litigation will not necessarily be enhanced by a Section 1407 transfer. Compare In re Disposable Diaper Patent Validity Litigation, 362 F.Supp. 567 (Jud.Pan.Mult.Lit.1973) and In re Lehman Equipment Company Patent Infringement Litigation, 360 F.Supp. 1402 (Jud.Pan.Mult.Lit.1973) with In re Molinaro/Catanzaro Patent Litigation, 380 F.Supp. 794 (Jud.Pan.Mult.Lit., filed" } ]

[ { "docid": "14929652", "title": "", "text": "DECISION HODGSON, Chief Judge: The issue before us is narrow and turns upon the admissibility of a Department of Justice periodical tracing the history, use and effects, both physical and psychological, of hallucinogens and marijuana. The appellant argues that such evidence was irrelevant during sentencing as he was convicted of distributing lysergic acid diethylamide (LSD) and not its use. He also urges that the information given the members regarding marijuana was as well irrelevant and “unduly prejudicial.” We disagree. It is well settled law that the prosecution may present evidence which is directly related to the accused’s conduct so that the sentencing body may accurately understand the repercussions that accompany his criminal acts. United States v. Vickers, 13 M.J. 403 (C.M.A.1982). The fact that the appellant was not convicted of using LSD himself is immaterial as he distributed the drug to a fellow service member who was a potential user. The court was entitled to know the deleterious effects of the contraband on the ultimate consumer whomever he may be. The evidence was properly before the court. United States v. Houston, 4 M.J. 729 (A.F.C.M.R.1979); cf. United States v. Hams, 18 M.J. 809 (A.F.C.M.R.1984) (such evidence improperly admitted on the merits but held harmless error in light of abundant credible evidence of guilt). For the reasons stated the findings of guilty and the sentence are AFFIRMED. FORAY, Senior Judge, and MURDOCK, Judge, concur. Department of Justice, Drug Enforcement, Vol. 6, No. 2 (July 1979)." } ]

[ { "docid": "1186882", "title": "", "text": "in their entirety, we are satisfied that the members were not misled by the error, and that they were in fact given the proper legal principles to guide them in their deliberations. We are fully satisfied that the members understood that the burden of proof rested with the government, and that they could return a verdict of guilty only if convinced beyond a reasonable doubt that Alford knew he was using a controlled substance. See Crumley, 31 M.J. at 24; see United States v. Slack, 12 U.S.C.M.A. 244, 246, 30 C.M.R. 244, 246 (1961). The findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are AFFIRMED. Chief Judge O’BRIEN and Judge PRATT concur. . Article 112a, UCMJ, 10 U.S.C. § 912a. His approved sentence extends to a bad conduct discharge, confinement for six months, total for feiture of all pay and allowances, and reduction to airman basic. . The trial defense counsel did not object to the admissibility of the urinalysis, and it is not raised as an issue on appeal. We thus do not face the issue of whether the consent was voluntary under the circumstances of this case. Mil. R.Evid. 314(e); R.C.M. 905(e); see United States v. Roa, 24 M.J. 297 (C.M.A.1987). . Additionally, we note that before he authenticated the record of trial, the military judge corrected errors on 28 separate pages. He made a correction in the very paragraph that contained the erroneous instruction, two sentences before his misstatement. He did not, however, note the error that is the subject of our review. . The specified issue was: WHETHER THE FINDINGS OF GUILTY TO THE CHARGE AND SPECIFICATION CAN BE SUSTAINED WHEN THE MILITARY JUDGE PROVIDED THE FOLLOWING ERRONEOUS INSTRUCTION ON FINDINGS TO THE MEMBERS: \"UNLESS YOU’RE SATISFIED, BEYOND A REASONABLE DOUBT, THAT THE ACCUSED WAS NOT AWARE THAT HE WAS USING A CONTROLLED SUBSTANCE, YOU MAY NOT FIND HIM GUILTY.’’ . In United States v. Turner, 30 M.J. 1183 (A.F.C.M.R.1990), we commended the military judge for providing written instructions on findings to the court" }, { "docid": "10494205", "title": "", "text": "CBPO in accordance with Air Force regulations. Records of counselling maintained outside the CBPO by direct supervisors are not “personnel records” within the meaning and intent of paragraph 75d, MCM, supra, as implemented; thus, they are inadmissible. United States v. Terrell, 8 M.J. 705 (A.F.C.M.R.1980); United States v. Lund, 7 M.J. 903 (A.F.C.M.R.1979); United States v. Sherwood, 6 M.J. 925 (A.F.C.M.R.1979). Here, a letter of reprimand, clearly admissible by itself, incorporated supervisory material from outside the CBPO. On this record as a whole, we find the probative value of such supervisory-level data outweighed by its prejudicial impact; accordingly, we hold that the military judge abused his discretion in admitting the basic reprimand without first deleting reference to the incidents not recorded in the unfavorable information file. The fact that a matter is properly entered into the accused’s personnel records at the CBPO does not necessarily mean that the entry is also admissible in a court-martial. The military judge should exercise sound discretion in electing whether or not to admit such material. We have considered the second assignment of error and resolve it adversely to the accused. Since evidence was introduced which showed the offense was facilitated by the accused’s duty status and that he abused such status in committing the offense, the trial counsel properly argued such status as an aggravating factor. See United States v. Collins, 3 M.J. 518 (A.F.C. M.R.1977). Reassessing the sentence on the basis of the first assignment of error, we find appropriate only so much of the sentence as extends to a bad conduct discharge, confinement at hard labor for nine months, forfeiture of $199.00 per month for nine months, and reduction to the grade of airman basic. The findings of guilty and the sentence, as modified, are AFFIRMED. EARLY, Chief Judge and MILLER, Judge, concur. . The governing directive is AFR 35-32, Unfavorable Information Files (UIFs), Control Rosters, Administrative Reprimands and Admonitions, 22 September 1975; it provides that certain items should not be placed within the UIF system of personnel records. For example, items should not be entered if they are: (1) trivial (Paragraph" }, { "docid": "411254", "title": "", "text": "Article 66(c), UCMJ, sentence appropriateness review in light of Appellant’s improper confinement for ten days and determine an appropriate remedy. . \"Bridging the Gap” sessions, common in Army practice, are post-trial meetings intended to be used as professional and skill development for trial and defense counsel. See United States v. Copening, 34 M.J. 28, 29 n. * (C.M.A.1992). . Therefore, we granted review of the following issue: Whether the military judge erred in considering the collateral administrative effect of the Army Regional Correctional Facilities’ policy of granting a service member five days of confinement credit per month for sentences which include less than twelve months of confinement in adjudging Appellant’s sentence. 60 M.J. 122 (C.A.A.F.2004) (order granting review). . United States v. McNutt, 59 M.J. 629 (A.Ct. Crim.App.2003). . Accordingly, we also granted review of this issue: Whether the Army Court of Criminal Appeals erred in holding that there was no evidence of extraneous prejudicial information improperly brought to the attention of the sentencing authority and no basis for impeaching Appellant’s sentence under Mil. R. Evid. 606(b). 60 M.J. 122 (C.A.A.F.2004)(order granting review). . 10 U.S.C. §§ 885, 886 (2002). . See R.C.M. 1105, 1107 (convening authority must consider clemency matters submitted by accused before taking final action on sentence). . The military judge’s statements made during the \"Bridging the Gap\" session were first asserted by Appellant in his clemency submission to the convening authority. Appellate Government counsel did not deny that the statements were made when the case was before the Army Court of Criminal Appeals, a fact specifically noted by that court. See McNutt, 59 M.J. at 631. And now before our Court, the unrebutted statements continue to be unchallenged by appellate Government counsel. . 34 M.J. 926 (A.F.C.M.R.1992). . M.R.E. 606(b) prohibits a court member from testifying as to any matter or statement made during deliberations or to the effect of anything upon the member's mind, emotions, or mental processes in deciding the findings or sentence, with three exceptions. \"[A] member may testify on the question whether extraneous prejudicial information was improperly brought to the attention of" }, { "docid": "12102721", "title": "", "text": "no prosecution evidence supports this argument. We find the prosecution’s remarks improper because they were based on matters not found within the record. United States v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252 (1956). However, in this case, we do not find the language so inflammatory as to mandate a rehearing on the sentence. We premise our decision here on three factors. First, a military judge sitting alone is presumed to exercise proper discretion and to distinguish proper from improper remarks. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970); United States v. Adams, 1 M.J. 877 (A.F.C.M.R. 1976). Moreover, the trial defense counsel failed to object to the argument. Normally, such failure to object to matters contained in argument triggers a waiver. United States v. Williams, 8 M.J. 826 (A.F.C.M.R.1980); United States v. Moore, 6 M.J. 661 (A.F.C.M.R.1978); United States v. Davie, 1 M.J. 865 (A.F.C.M.R.1976). Indeed, the absence of objection in this case and defense’s counter-argument suggest minimal impact of assistant trial counsel’s remarks upon the military judge. Finally, lack of harm to the accused is apparent in the fact that the maximum sentence possible in this case extends to a dishonorable discharge, total forfeitures, confinement at hard labor for five years, and reduction to airman basic. Manual for Courts-Martial, 1969 (Revised), para. 127c. Yet the sentence here was far below the maximum authorized. In view of the sentence imposed, we find the accused was not prejudiced. United States v. Thomas, 2 M.J. 263 (A.F.C.M.R.1976); United States v. Adams, supra. We have examined the sentencing arguments carefully and find the prosecution’s argument moderate in tone. Based on the entire record, we find no prejudice to the accused stemming from the remarks of assistant trial counsel. The findings of guilty and the sentence are AFFIRMED. Defense counsel responded in argument that “. . Airman Eck is not a big-time dealer [TJhere is nothing to indicate that Airman Eck was a dealer . . . [AJirman Eck is not as deeply involved in the drug trade or drug traffic or drug use as the prosecution would have you" }, { "docid": "7479638", "title": "", "text": "the record extracts of the statutory and regulatory provisions that governed this trial. Amendments to pay statutes are routine, and amendments to the DoD Pay Manual and to Air Force manuals and regulations are frequent. For example, appellate defense counsel reported to us that the pertinent parts of the Pay Manual had been changed 24 times since a comprehensive revision in 1987! This Court does have statutes and regulations available for its research, but trial personnel ask too much of us if they expect that we will also piece together the historical mosaic of the law on which they rely. The more craftsmanlike practice, and the one which we expect, is to assure that the law governing such a case is captured at trial as it stood at the relevant time in extracts appended to the record as appellate exhibits. Cf. Fed.R.App.P. 28(f). The absence of testimony in this case about entitlement to BAQ and the absence of those extracts suggest that trial counsel completely overlooked the issue. . Having reached this conclusion, we are not required to examine the adequacy of the military judge’s instruction on that element. On this element the military judge instructed simply, \"The second element is: That the property belonged to the U.S. Air Force.” The defense theory was not based on ownership, but was instead based on mistake. Thus, the defense did not ask a more detailed instruction and did not object to the one given. Any deficiency might well have been waived. R.C.M. 920(c), (f). . Sergeant Bost notes that the staff judge advocate’s recommendations related to the convening authority two findings of guilty, one on each of the two original charges separately, even though they were consolidated. He argues that the convening authority might have been less generous because the staff judge advocate’s error made him look more culpable. Thus, his argument is very similar to our analysis of the need for relief from the sentence to cure the findings error. Our action cures the staff judge advocate’s error, just as Congress intended. See United States v. Komorous, 33 M.J. 907 (A.F.C.M.R.1991);" }, { "docid": "5115991", "title": "", "text": "HERMAN, Judge: The accused has been found guilty, despite his pleas, of possession and sale of approximately five pounds of marihuana, as well as conspiracy to sell the same substance, in violation of Articles 134 and 81 of the Uniform Code of Military Justice, 10 U.S.C. §§ 934, 881. Although we affirm these convictions, we decide that a portion of the sentencing argument of the trial counsel to the court members was improper and prejudicial, and we therefore reassess the sentence. Appellate defense counsel’s averment that the convening authority erred in failing to compare this accused’s sentence with that of his fellow conspirator is without merit, as are the remaining errors assigned. The fellow conspirator, Airman Kelley, had been tried by special court-martial by the time of the accused’s trial, and was sentenced to six months confinement at hard labor, forfeiture of two-thirds pay per month for six months (modified to $249.00 per month), and reduction to airman basic. The sentence imposed upon this accused who actually secured the marihuana, was bad conduct discharge, confinement at hard labor for five months, forfeiture of $240.00 per month for five months and reduction to airman basic. In United States v. Capps, 1 M.J. 1184 (A.F.C.M.R.1976), this Court declared that while the appropriateness of a sentence in a particular case is to be determined by its own facts and circumstances, and not m comparison with sentences in other cases, (a) recognized exception to the rule against sentence comparison as a criterion for determining appropriateness are situations involving connected or closely related cases with highly disparate sentences. In the Capps case, the accused received a bad conduct discharge, confinement, forfeitures and reduction to airman basic; his co-actor received only a one grade reduction with a recommendation for suspension of the sentence. In a more recent case, United States v. De Los Santos, 3 M.J. 829 (A.F.C.M.R.1977) we held the staff judge advocate’s post-trial review to be inadequate for failing to advise the convening authority that he must consider the sentence adjudged in a connected case. Although it might have been helpful in complete analysis" }, { "docid": "12099443", "title": "", "text": "smoke a joint of marihuana. Then on July 13, 1983, appellant transferred four hits of LSD to an informant for the Air Force Office of Special Investigations (OSI). This transaction took place at appellant’s on-base residence under controlled OSI observation. The informant turned the drugs over to a special agent, who in turn forwarded the items to the laboratory for testing. Three of the four items were consumed in testing. The fourth was introduced as a prosecution exhibit. Finally, appellant admitted, after proper rights’ advisement, to using and possessing marihuana in his residence during the month of November 1983. He consented to a search of his residence which produced, among other things, drug paraphernalia and marihuana residue in many forms. Appellant also tested positive for tetrahydrocannabinol (THC) by urinalysis. During presentencing, trial counsel requested the military judge to take judicial notice of two extracts (attached to the record as Appellate Exhibits II and III and appended to this opinion) from Drug Enforcement magazine, a periodical published by the Drug Enforcement Agency, Department of Justice. One offers an analysis of the history, nature, and effects of LSD use, while the other discusses the same with respect to marihuana use. Over defense objections under Mil.R.Evid. 201 (dealing with judicial notice), 401 and 402 (on the question of relevance), and 403 (as to probative value), the military judge edited portions of the extracts and took judicial notice of the remainder. Trial counsel was then only allowed to read the retained portions to the court members. Later, those members were instructed to consider what was read to them as evidence with the understanding that they did not have to accept the contents as conclusive. We agree with the court below and reject appellant’s argument that such evidence is irrelevant for sentencing because he was convicted of distributing, not using, LSD. In United States v. Vickers, 13 M.J. 403, 406 (C.M.A.1982), Chief Judge Everett expressed the unanimous view that regardless of the plea, the prosecution after findings of guilty may present evidence which is directly related to the offense for which an accused is to" }, { "docid": "2522869", "title": "", "text": "DECISION ROBERTS, Senior Judge: Tried by a special court-martial in which findings were made and sentence imposed by a military jury, the accused stands convicted, contrary to his pleas of not guilty, of three specifications alleging the possession, transfer, and sale of amphetamines contrary to the provisions of Air Force Regulation 30-2 and possession of hashish in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934. The approved sentence is a bad conduct discharge, confinement at hard labor for six months, forfeiture of $240.00 per month for six months, and reduction to airman basic. Although appellate defense counsel initially submitted this case to the Court without any specific errors being assigned, it is now claimed in supplemental pleadings, the filing of which we have approved, that we should order a rehearing on the sentence imposed below because of the holdings of the Court of Military Appeals in United States v. Mosely, 1 M.J. 350, and United States v. Miller, 1 M.J. 357, which were decided on 19 March 1976. It is urged that those cases compel the conclusion that the trial counsel erred by stating in argument that the jury should consider the extent to which a sentence imposed by them would serve to deter others from committing offenses similar to those of the accused. We do not believe that Mosely and Miller require that a lawfully imposed sentence must be set aside merely because a trial counsel makes reference to the concept of general deterrence as one of the factors to be taken into account in arriving at an appropriate sentence. In our view, the thrust of Mosely and Miller is to condemn the use by trial counsel of the concept of general deterrence as an aggravating circumstance justifying additional penalties which allow “the accused to be punished more severely than he justly deserves.” United States v. Mosely, supra, 1 M.J. 352. In Miller, the rule is expressed that trial counsel may not argue “as to deterrence of others by imposition of a more severe sentence upon the accused than might otherwise" }, { "docid": "12099442", "title": "", "text": "OPINION OF THE COURT SULLIVAN, Judge: Appellant was tried by general court-martial at Mountain Home Air Force Base, Idaho. Pursuant to his pleas, he was found guilty of wrongful distribution of lysergic acid diethylamide (LSD), wrongful possession of marihuana, and two specifications of wrongful use of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced by a panel of officer members to a bad-conduct discharge, confinement for 15 months, forfeiture of $300.00 pay per month for 15 months, and reduction to airman basic. The convening authority approved, and the Court of Military Review affirmed, the findings and sentence. 19 M.J. 640. We granted review of the following issue: WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE FOR SENTENCING APPELLATE EXHIBITS II AND III (EXCERPTS FROM DRUG ENFORCEMENT MAGAZINE AS TO LSD AND MARIHUANA, RESPECTIVELY). The facts of this case are as follows: On July 8, 1983, appellant and two companions drove off Mountain Home Air Force Base to an abandoned Titan III missile site to smoke a joint of marihuana. Then on July 13, 1983, appellant transferred four hits of LSD to an informant for the Air Force Office of Special Investigations (OSI). This transaction took place at appellant’s on-base residence under controlled OSI observation. The informant turned the drugs over to a special agent, who in turn forwarded the items to the laboratory for testing. Three of the four items were consumed in testing. The fourth was introduced as a prosecution exhibit. Finally, appellant admitted, after proper rights’ advisement, to using and possessing marihuana in his residence during the month of November 1983. He consented to a search of his residence which produced, among other things, drug paraphernalia and marihuana residue in many forms. Appellant also tested positive for tetrahydrocannabinol (THC) by urinalysis. During presentencing, trial counsel requested the military judge to take judicial notice of two extracts (attached to the record as Appellate Exhibits II and III and appended to this opinion) from Drug Enforcement magazine, a periodical published by the Drug Enforcement Agency, Department of Justice. One" }, { "docid": "1191149", "title": "", "text": "OPINION OF THE COURT PER CURIAM: Consistent with his pleas, the appellant was convicted by a military judge sitting as a general court-martial of attempted forcible sodomy and forcible sodomy, in violation of Articles 80 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 925 (1982). He was sentenced to a bad-conduct discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to Private El. Pursuant to the terms of a pretrial agreement, the convening authority reduced the period of confinement to twelve months and otherwise approved the adjudged sentence. Although this case was submitted on its merits, there is one matter that deserves discussion. Following arraignment, the trial defense counsel made the following request to the military judge: “Due to the sensitive nature of the charges, we would request that the court be closed for spectators and others in the courtroom dur.ing providency.” Without articulating his reasons, the military judge instructed all spectators to withdraw from the courtroom, with the exception of the company commander and the escorts. In so doing, the military judge abused his discretion. The right of the public and the press to attend criminal trials, including courts-martial, is guaranteed under the first and fourteenth amendments. United States v. Fiske, 28 M.J. 1013 (A.F.C.M.R. 1989) , review denied, 30 M.J. 212 (C.M.A. 1990) . As Judge Cox has noted, “... public confidence in matters of military justice would quickly erode if courts-martial were arbitrarily closed to the public.” United States v. Travers, 25 M.J. 61 (C.M.A.1987). The Manual for Courts-Martial generally provides that “courts-martial shall be open to the public.” Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 806(a) [hereinafter R.C.M. 806(a) ]. Although a military judge has discretion to close a session, absent an overriding inter est articulated in findings, a court-martial must be open to the public. See R.C.M. 806(b), discussion. We conclude that prior to excluding all or portions of the public from viewing a court-martial, the military judge must articulate findings warranting, and limiting as narrowly as possible, the infringement upon the constitutional right of" }, { "docid": "18680942", "title": "", "text": "in the unlikely event that trial counsel had insufficient knowledge of the forthcoming testimony of his witnesses at the time of the defense motion for specificity to comply with the defense motion at the time it was made, he clearly had sufficient knowledge following the testimony of his witnesses, and prior to the close of the open court proceedings for findings. Despite the fact that after viewing the evidence, the military judge must have concluded his earlier denial of the defense motion for specificity was erroneous, he did not require that the charges be amended in conformity with the earlier motion. As a result, one of the offenses of which the accused stands convicted includes both illegal acts and the other includes one. Perforce, findings of guilty should not have been entered or approved as to both offenses; United States v. Maynazarian, 12 U.S.C.M.A. 484, 31 C.M.R. 70 (1961), United States v. Lehman, 5 M.J. 740 (A.F.C.M.R. 1978), United States v. Pratt, 34 C.M.R. 731 (C.G.B.R.1963). The prejudicial effect of such pleading is apparent from the military judge’s ruling that the accused could be sentenced separately on each specification. Accordingly, the finding of guilty as to Specification 5 of Charge II is set aside and dismissed. All other errors alleged by trial and appellate defense counsel, not specifically addressed herein, are without merit. Reassessing the sentence on the basis of the remaining findings of guilty, excluding the erroneously admitted letter of reprimand, we find appropriate only so much thereof as provides for a bad conduct discharge, confinement at hard labor for two years, forfeiture of $100.00 per month for 24 months, and reduction to airman basic. The findings of guilty and the sentence, both as modified herein, are AFFIRMED. EARLY, C.J., and KASTL, J., concur. . This document’s existence in the accused’s unfavorable information file illustrates perfectly our holding in United States v. Dodds, 11 M.J. 520 (A.F.C.M.R.1981), that proper entry into an Unfavorable Information File, does not necessarily mean that the entry is also admissible in a court-martial for pre-sentencing consideration. While Air Force Regulation 30-2, Social Actions Program," }, { "docid": "18680935", "title": "", "text": "DECISION MILLER, Judge: Tried by a military judge sitting alone as a general court-martial, the accused was convicted, contrary to his pleas, of two specifications each of possessing, using and selling cocaine, and one specification each of possessing heroin and amphetamines, in violation of Articles 134 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 892. His sentence consists of a dishonorable discharge, confinement at hard labor for two years, forfeiture of $100.00 per month for 24 months, and reduction to airman basic. Two issues are addressed here. The first, concerns the admissibility of evidence, introduced by the Government in sentencing, that reveals the accused’s participation in a drug rehabilitation program. The second, involves the propriety of alleging an offense on a specific date which is indistinguishable from a continuing offense alleged to have occurred during a period of time inclusive of that date. Finding error with regard to both issues, we dismiss the offending specification and reassess the sentence. Following findings, the Government offered into evidence a letter of reprimand from the accused’s Unfavorable Information File (UIF) for consideration in sentencing. Defense objected because it revealed the accused’s participation in an Air Force drug rehabilitation program. The first paragraph of this document stated: On 16 July 1979 you were entered into the drug rehabilitation program at Zweibrucken Air Base, Germany. A condition of the rehabilitation program is that you are required to submit two urinalysis samples monthly. The sample you sub mitted on 17 July 1979 was found to be positive for amphetamines and the sample you submitted on 31 July 1979 was found to be positive for phenobarbital. In neither case had these substances been medically prescribed. We have previously held that neither confidential drug abuse records themselves, nor the testimony of persons concerning their contents are admissible for the purpose of rebutting testimony consisting of opinion evidence as to rehabilitation potential during the sentencing portion of court-martial proceedings, United States v. Fenyo, 6 M.J. 933 (A.F.C.M.R.1979), pet. denied, 7 M.J. 161 (C.M.R.1979). A year later, when confronted with the admissibility of such confidential records" }, { "docid": "16333456", "title": "", "text": "DECISION KASTL, Senior Judge: The accused, Senior Airman Robbins, argues that he was denied a proper hearing on sentence when the military judge refused to either: (a) compel the prosecution to introduce the accused’s airman performance reports; or (b) make them court exhibits. We disagree and find United States v. Smith, 16 M.J. 694 (A.F.C.M.R.1983) dispositive of this issue; see also United States v. Morgan, 15 M.J. 128 (C.M.A.1983). Accordingly, we affirm. This is another case where the accused’s performance reports have been effectively embargoed from the trial court. In Smith, we first expressed concern over a military court “passing sentence without the benefit of important information.” Following more reflection, we now spell out our earlier concerns. I The accused was found guilty of conspiracy, transfer of various drugs, blackmarketing, larceny, and false swearing, in violation of Articles 81, 92,121, and 134, U.C.M.J., 10 U.S.C. §§ 881, 892, 921 and 934. His sentence is a dishonorable discharge, confinement at hard labor for seven years, total forfeitures, and reduction to airman basic. On appeal, he asserts the following: THE ACCUSED WAS DENIED A PROPER HEARING ON SENTENCE WHEN THE MILITARY JUDGE REFUSED EITHER TO COMPEL THE PROSECUTION TO INTRODUCE THE ACCUSED’S AIRMAN PERFORMANCE REPORTS OR TO MAKE THEM COURT’S EXHIBITS. At the time of trial, the accused’s personnel records contained three performance reports and a letter of evaluation. The prosecution declined to proffer these documents; the military judge then denied a defense motion to compel the Government to either introduce them or — in the alternative— make them court exhibits. In our judgment, we face here two questions in presentencing procedure: (1) what is required by law?; and (2) consistent with the law, what is the most equitable procedure for dealing with such information? II In an excellent appellate defense brief, Major Alexander S. Nicholas has traced the changes in the Manual for Courts-Martial since 1951. As the Court of Military Appeals, explained in United States v. Morgan, 15 M.J. 128, 130-131 (C.M.A.1983): The 1951 Manual for Courts-Martial contained no provision authorizing the trial counsel to present the accused’s personnel records" }, { "docid": "2523289", "title": "", "text": "to what motivated the accused to supply heroin to Roscoe, a purported drug trafficker known to the accused only by virtue of an introduction by his acquaintance Murphy. Whatever the actual motivation, however, need not here detain us, for considering the circumstances as a whole, we are satisfied the defense of agency is not even reasonably suggested. See United States v. Hodge, 48 C.M.R. 576 (A.F.C.M.R.1974), pet. denied, 48 C.M.R. 999 (1974). The evidence in totality convinces us, as it did the military judge, that the accused acted on his own behalf in a most aggressive pursuit of a heroin transaction. One final matter requires our attention. In his closing argument on sentence, the trial counsel alluded to deterrence of others as the basis for his recommendation that, among other penalties, forfeiture of all pay and allowances and confinement at hard labor for five years be adjudged. In the very recent case of United States v. Mosely 1 M.J. 350, decided 19 March 1976, the Court of Military Appeals declared it error for a trial counsel to urge court members to consider the deterrent effect upon others as a basis to increase the sentence otherwise appropriate. Assuming in the present case that trial counsel’s reference to deterrence was improper, upon careful evaluation we see no reasonable likelihood the remarks exerted any adverse influence on the sentence. United States v. Mosely, supra; United States v. Peters, 8 U.S.C.M.A. 520, 25 C.M.R. 24 (1951). The sentence imposed by the military judge, the earlier indicated bad conduct discharge, confinement at hard labor for one year, forfeiture of $240.00 per month for 12 months and reduction to airman basic, was far less than the maximum authorized, and significantly more lenient than urged by the trial counsel. This sentencing action demonstrates to our total satisfaction the military judge was not affected by the improper argument of trial counsel and the error was consequently rendered harmless. For the reasons stated, the findings of guilty and the sentence are AFFIRMED. ROBERTS, Senior Judge, and SANDERS, Judge, concur." }, { "docid": "22723640", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: A general court-martial at Keesler Air Force Base, Mississippi, tried appellant on charges that he had raped a female airman and had forced her to commit sodomy with him, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 925, respectively. Sales pleaded not-guilty; but, by exceptions and substitutions, he was convicted of committing lewd and lascivious acts and of consensual sodomy. The court members sentenced appellant to a bad-conduct discharge, confinement for 6 months, total forfeitures, and reduction to airman basic; and the convening authority approved the findings and sentence. The Court of Military Review concluded that appellant’s conviction for committing lewd and lascivious acts by having “(1) exposed himself by removing his pants; [and] (2) voluntarily participated in a group sexual encounter” was multiplicious with the finding that he had engaged in consensual sodomy. As that court reasoned: Indecent acts with another is a lesser included offense of sodomy. United States v. Cheatham, 18 M.J. 721 (A.F.C.M.R. 1984), and cases cited therein. In our view the language of this finding “fairly embraced” the conduct that resulted in a conviction of consensual sodomy. See United States v. Baker, 14 M.J. 361 (C.M.A.1983). The evidence before the trial court permits no other conclusion. In United States v. Doss, 15 M.J. 409 (C.M.A.1983), the Court of Military Appeals held that multiplicity for findings is apparent where one of the offenses is lesser included of the other. Unpublished opinion at 3. Having decided that only the conviction for consensual sodomy could be affirmed, the Court of Military Review proceeded to “reassess the sentence in light of the error discussed, the offense affirmed and the record before us.” To a request by appellate defense counsel that the punitive discharge be set aside, the court replied that “[g]ood as the accused’s record may be to this point, our reading of the transcript convinces us that the adjudged sentence is clearly appropriate and it is AFFIRMED.” Id. at 3-4. We granted review of the sole issue presented by appellant’s petition: WHETHER" }, { "docid": "12129030", "title": "", "text": "Huitt, 25 M.J. 136 (C.M.A.1987); United States v. Towers, 24 M.J. 143 (C.M.A.1987); United States v. Reynolds, 23 M.J. 292 (C.M.A.1987). We have examined the evidence presented in this record and conclude that it supports the military judge’s conclusion that the challenged members could decide the case based solely on the evidence and without regard to their relationships with the other members. Accordingly, we hold that the Court of Military Review erred as a matter of law in applying a per se disqualification predicated solely on the fact that a senior member of the court-martial is involved in writing or endorsing the effectiveness reports of junior members. Turning to the granted issues, we note that defense counsel attempted to introduce an extract of Air Force Regulation 125-18, which sets forth criteria governing an accused’s eligibility for entry into the 3320th Correction and Rehabilitation Squadron. He particularly wanted to emphasize in argument that as a criterion for eligibility, an accused must have no more than 18 months of approved confinement remaining to be served. We recently observed in United States v. Griffin, 25 M.J. 423 (C.M.A.), cert. denied, — U.S. -, 108 S.Ct. 2849,101 S.Ct. 886 (1988), that an accused should be sentenced without regard to the collateral administrative consequences of the sentence in question. Accord United States v. Quesinberry, 12 U.S.C.M.A. 609, 31 C.M.R. 195 (1962). Therefore, we hold that the military judge’s rulings excluding this evidence were within the bounds of his discretion. The decision of the United States Air Force Court of Military Review as to the sentence is reversed. The record of trial is returned to the Judge Advocate General of the Air Force for resubmission to that court for further review of the sentence. 1 have attempted to fashion an opinion based upon what I believe is a correct interpretation of Article 25, Uniform Code of Military Justice, 10 U.S.C. § 825, and the earlier precedents of this Court. I also have tried to create a rule of law in harmony with constitutional precedents. Wainwright v. Witt, 469 U.S. 412,105 S.Ct. 844, 83 L.Ed.2d 841 (1985)." }, { "docid": "12102720", "title": "", "text": "DECISION KASTL, Judge: In this case, we hold that trial counsel’s argument on sentence before a military judge alone, while improper, was not prejudicial to the rights of the accused. Accused was tried by a general court-martial consisting of a military judge sitting alone for three specifications set under Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The military judge found accused not guilty of one offense but guilty of possession and sale of 405 grams of marijuana. Accused was sentenced to a bad conduct discharge, confinement at hard labor for one year, forfeitures of $299.00 per month for one year, and reduction to airman basic. In the sole assignment of error, accused argues that he was prejudiced by the unfounded argument of the prosecution indicating that accused had previously been a seller of drugs. Specifically, assistant trial counsel asserted in argument that the accused was “no novice to the drug trade” and that he was “in fact not a small-time supplier, but rather an experienced dealer .... ” Accused avers that no prosecution evidence supports this argument. We find the prosecution’s remarks improper because they were based on matters not found within the record. United States v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252 (1956). However, in this case, we do not find the language so inflammatory as to mandate a rehearing on the sentence. We premise our decision here on three factors. First, a military judge sitting alone is presumed to exercise proper discretion and to distinguish proper from improper remarks. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970); United States v. Adams, 1 M.J. 877 (A.F.C.M.R. 1976). Moreover, the trial defense counsel failed to object to the argument. Normally, such failure to object to matters contained in argument triggers a waiver. United States v. Williams, 8 M.J. 826 (A.F.C.M.R.1980); United States v. Moore, 6 M.J. 661 (A.F.C.M.R.1978); United States v. Davie, 1 M.J. 865 (A.F.C.M.R.1976). Indeed, the absence of objection in this case and defense’s counter-argument suggest minimal impact of assistant trial counsel’s remarks upon the military judge. Finally, lack of" }, { "docid": "12099447", "title": "", "text": "207 (C.M.A.1984); United States v. Brown, 11 M.J. 263 (C.M.A. 1981). We have some doubt whether a Drug-Enforcement-Administration publication, as compared to a learned treatise, meets the source requirement of Mil.R.Evid. 201(b)(2) in the context of a drug prosecution. However, it is not clear on the record whether this publication was a source within the meaning of this prong of the rule or simply a convenient vehicle for communicating facts to be judicially noticed under Mil.R. Evid. 201(b)(1). In any event, this issue was not adequately developed at trial and has not been directly pursued on appeal. Mil.R.Evid. 103(a)(1). Turning to appellant’s specific claims, we note that resolution of this case would necessarily require consideration of the entire record of trial for prejudice. See Mil.R. Evid. 103(a). Certain actions taken by the military judge which dampen the effects of the extracts and by defense counsel which reflect an absence of prejudice are readily apparent. First, the members never saw the exhibits because the judge limited trial counsel to oral presentation only. Second, the military judge at the request of the defense deleted what he believed to be irrelevant portions from the extracts. In accord with our earlier discussion on relevance, we believe he excluded all that was necessary. Third, the military judge instructed the members that they could consider the matters judicially noticed, but they did not have to accept them as conclusive. Fourth, prior to taking judicial notice, the military judge provided defense counsel with a fair opportunity to challenge the matters asserted in the extracts. Both extracts contain background information, the accuracy of which could be easily verified or challenged by reference to medical or pharmaceutical literature. Fifth, we note that the record shows that appellant did not at trial, and does not on appeal, identify as inaccurate any of the unedited statements in the extracts. If the true question on this appeal is one involving reliability of information, then appellant did have an adequate opportunity to “set the record” straight. At best, his failure to seize upon the opportunity to meaningfully respond in these circumstances suggests that" }, { "docid": "18660264", "title": "", "text": "(C.M.A.1984) and United States v. Dagger, 23 M.J. 594 (A.F.C.M.R.1986) pet. denied 25 M.J. 241 (C.M.A.1987). See also DA Pam 27-173, Trial Procedure (15 Feb 1987) paragraph 25-5e(2). It follows that— whether the defense contention is correct that the evidence was inadmissible for the reasons stated by trial counsel — it was clearly admissible to show the circumstances surrounding the commission of the crimes. We find the facts of this case clearly distinguishable from those in United States v. Wingart, a lynchpin of the defense effort. In Wingart, the Court of Military Appeals found the military judge erred in admitting slides “of a former young neighbor girl who was an Air Force dependent ... in various stages of undress and in provocative poses.” The photographs had been discovered by the appellant’s ex-wife approximately three years earlier. United States v. Wingart, 27 M.J. at 131. Stale, three-year old material is a far cry from the probative “facts and circumstances” data present in the instant case. Sentence Appropriateness We now address the matter of appropriateness of sentence. The appellant was subject to a dishonorable discharge, 54 years of confinement, and accessory penalties. The military judge sentenced him to a dishonorable discharge and 40 years confinement; he imposed no forfeitures and reduced the appellant to airman first class. It has been aptly said that it is no accident that Justice holds the scales in one hand and the sword in the other. The sword without the scales is brute force; the scales without the sword is but empty theory. Both belong together. We observe that there is perhaps no type of offense more repugnant than sexual abuse involving one’s own child. In our review of an appropriate sentence, we have found no Air Force case for which similar child abuse offenses — however heinous — include such a lengthy term of confinement. See, for example, United States v. Saul, 26 M.J. 568, 575 (A.F.C.M.R.1988). Considering the entire record, we find appropriate only so much of the sentence as extends to a dishonorable discharge, confinement for 30 years, and reduction to airman first class." }, { "docid": "18659753", "title": "", "text": "DECISION MAHONEY, Judge: Pursuant to his pleas, the accused was convicted by special court-martial, military judge alone, of three thefts of personal property, and possession of marijuana and benzphetamine, in violation of Articles 121, 134, and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 921,934, and 892. He was sentenced to a bad conduct discharge, confinement at hard labor for six months, forfeiture of $200.00 per month for six months, and to be reduced to airman basic. At trial, the prosecution attempted to introduce evidence of the accused’s participation in an Air Force drug rehabilitation program for consideration in sentencing. The military judge correctly rejected this evidence. United States v. Cruzado-Rodriguez, 9 M.J. 908 (A.F.C.M.R.1980). No information resulting from or concerning an accused’s participation in an Air Force drug rehabilitation program is admissible in an Air Force court-martial unless a specific basis for its admission is established in accord with applicable directives. United States v. Cottle, 11 M.J. 572, note 6 and accompanying text (A.F.C.M.R.1981). After trial, as a part of the clemency report attached to the review of the staff judge advocate, the accused’s commander stated: I do not feel that Airman Schmenk has any potential for restoration. He was enrolled in the USAF Drug Rehabilitation Program but continued to use drugs. This demonstrates his lack of potential to rehabilitate. Before the review was submitted to the supervisory authority, the defense counsel was afforded the opportunity to comment upon the review, including the added adverse information. United States v. Goode, 1 M.J. 3 (C.M.A.1975); United States v. Vara, 8 U.S.C.M.A. 651, 25 C.M.R. 155 (1958). See, Air Force Manual 111-1, Military Justice Guide, paragraphs 7-3 through 7-6, dated 2 July 1973. Despite the lack of comment on this information in the review of the staff judge advocate, we presume that it was considered by the convening and supervisory authorities in determining the accused’s rehabilitation potential, and in deciding whether further efforts at rehabilitation should be made, or whether clemency should be granted. We have examined the applicable directives and have determined that the convening and supervisory authorities were," } ]

[ { "docid": "9849678", "title": "", "text": "until the time balance and any and all other sums owing by the Buyer to Holder or any judgment thereof are fully paid and all the terms, conditions and agreements herein shall have been fulfilled. * * Sf5 * * * In any jurisdiction where the Uniform Commercial Code is in effect the Buyer grants to Holder a security interest in any or all property wherever located now or hereafter belonging to Buyer or in which Buyer has any interest and agrees that Holder’s security interest created by this agreement secures any and all other obligations owing by Buyer to Holder. Credit Alliance became the holder of the conditional sales contract by assignment, and on January 20, 1975 it filed, in the Office of the Prothonotary of Fayette County, and in the Office of the Secretary of the Commonwealth in Harrisburg, a Pennsylvania Approved Standard Form UCC-I, together with the conditional sales contract. The standard form financing statement contains Box No.. 3, labeled “Maturity Date (optional),” which was left blank. Box No. 5 of the form is labeled “This Financing Statement Covers the Following Types (or items) of Property.” Box 5 was filled in: All machinery, inventory, equipment and goods as described in attached entire agreement &/or in any Schedule prepared in connection therewith. This UCC form together with the attached Security Agreement &/or Schedule are being submitted for filing herewith as a financing statement. In January of 1977 the Bank made a loan to Jebco, intended in part to pay Jebco’s obligation to Credit Alliance. The Bank determined from Credit Alliance the balance due on the conditional sales contract, and Jebco paid that amount by a cashier’s check. Although 12A P.S. § 9-404 (Purdon 1970), now 13 Pa.Cons.Stat.Ann. § 9404 (Purdon 1980 Pamph.), provided that Jebco could require from Credit Alliance a termination statement authorizing the filing officer to remove a financing statement from the files, none was requested. Thus when on January 25, 1977 the Bank filed its financing statement, covering collateral for its loan, including the Fiat-Allis loader and tractor, the Credit Alliance financing statement was still" } ]

[ { "docid": "13572225", "title": "", "text": "no longer purchase money because the debt secured exceeds the price of what is purchased in the transaction that created the security interest. In re Manuel, 507 F.2d at 993. In this situation, the item purchased secures a debt other than the acquisition debt, which precludes the security interest from being purchase money. In re Freeman, 956 F.2d at 255. Hence, Dunn only had an ordinary security interest as its PMSI was destroyed. Thus, as between Dunn and ORIX, ORIX has the superior interest in the equipment as it was the first to file a financing statement covering the loader and dozer. Ala.Code § 7-9-S12(5). B. The transformation rule spoils the bank’s PMSI. As with Dunn’s PMSI, the transformation rule applies to spoil the bank’s alleged PMSI. The bank admits that the debt- or used the proceeds of the bank’s loan to pay off Dunn on the acquisition debt and to extinguish the debt owed to Maxx. (AP Doc. 18). The debtor’s obligation to Maxx was totally unrelated to the purchase of the loader and dozer. (AP Doe. 18). In this situation, the PMSI exceeded the price of the collateral purchased with the proceeds of the loan (i.e. the price of the loader and the dozer.) Moreover, the loader and dozer were security for debt (antecedent debt) that was not created upon the purchase of the equipment. Without question the transformation rule spoils the bank’s PMSI and makes it an ordinary security interest. Since the priority dispute between the bank and ORIX only involves two ordinary security interests, the first-to-file, first-in-right priority rule governs the fight. Ala. Code § 7-9-812(5). ORIX filed a financing statement covering the loader and dozer before the bank did so. ORIX’s security interest was perfected upon the filing of the financing statement. Therefore, ORIX wins the priority conflict and has the superior interest in the equipment. CONCLUSION Considering all the facts, ORIX Credit Alliance’s security interest in the equipment at issue is superior to the Bank of Tuscaloosa’s security interest. As a result, ORIX Credit Alliance has priority over the Bank of Tuscaloosa in asserting" }, { "docid": "13572216", "title": "", "text": "annexed Schedule A and all other goods, chattels, machinery, equipment, inventory, accounts, chattel paper, notes receivables, accounts receivable, furniture, fixtures, general intangibles, and property of every kind and nature, wherever located, now or hereafter belonging to Mortgagor and all proceeds and any distribution thereof and any insurance thereon (all of the foregoing hereinafter referred to as the “Mortgaged Property”), to have and to hold the same unto Mortgagee forever. (Exhibit C to AP Doc. 8) (emphasis added). No other financing statements had been filed against the debtor that covered the loader and dozer prior to the ORIX financing statement. August 7, 1992, the debtor purchased the equipment on credit from Dunn. The debt due from the debtor to Dunn under the sales agreement will be referred to as the acquisition debt. The sales agreement, which included a security agreement, provided that the equipment was security for both the acquisition debt and all other debt and future indebtedness owed or to be owed to Dunn. The security agreement provided that: This Security Agreement secures the payment when due of all Obligations of the Debtor to the Secured Party now or hereafter existing, whether under the Agreement, the Note or otherwise, and whether for principal, interest, fees, expenses or otherwise, and all obligations of the Debtor now or hereafter existing under this Security Agreement. (All such obligations of the Debtor referred to as “Obligations”.) (Underlining for. emphasis) On August 13, 1992, clearly within twenty days after the debtor received possession of the collateral, Dunn timely filed a financing statement covering the equipment with the Alabama Secretary of State (Second UCC filing). (Exhibit D to AP Doe. 8). As of August 7, 1992, Brookwood Sand & Gravel also owed Dunn on other obligations. Both the acquisition debt and the other Dunn indebtedness were, for a time, owed to Dunn simultaneously. The equipment was security for both debts. And collateral on the other debt was security for the acquisition debt. Both debts, for a period of time, were each for tens of thousands of dollars. A financing statement which covered the equipment was filed" }, { "docid": "13572219", "title": "", "text": "to the acquisition of the equipment. The debtor used the remaining proceeds of the bank loan ($33,337.80) to pay off Dunn on the acquisition debt. However, the debtor continued to owe Dunn on other indebtedness. On April 2, 1993, the Bank of Tuscaloosa filed with the Alabama Secretary of State a financing statement against Brookwood covering the equipment (the Fourth UCC filing). The bank’s financing statement was the fourth financing statement filed against the loader and dozer and was filed more than eight months after ORIX’s financing statement had been filed. Dunn concedes that whatever security interests now has in the equipment is inferior to the interest of ORIX. The SBA also makes no claims to priority over ORIX on this equipment. Dunn never assigned to the bank the sales agreement, the acquisition indebtedness, or any security agreement or financing statement it had received in connection with the sale of the equipment. The debtor continues to owe ORIX more than $170,000. CONCLUSIONS OF LAW I. THE BANKRUPTCY COURT MUST APPLY THE TRANSFORMATION RULE TO THE FACTS OF EACH CASE AND DETERMINE IF THE ALLEGED PURCHASE MONEY SECURITY INTEREST (PMSI) IS A TRUE PMSI OR AN ORDINARY SECURITY INTEREST. This adversary proceeding came before the court on the parties’ cross-motions for sum mary judgment. Since the parties have stipulated to all the relevant facts, there is no genuine issue as to any material fact. Consequently, this court is authorized under Fed. R.Bankr.P. 7056 and Fed.R.Civ.P. 56(c) to decide the purely legal question presented and enter judgment in favor of the party entitled to relief as a matter of law. This case hinges on the purchase money status of the bank. The significance of a purchase money security interest (PMSI) is that the state commercial code often gives the holder of a PMSI priority over another secured creditor that has an earlier perfected security interest (SI) in the same collateral. In this case, the collateral at issue is equipment of the debtor. AlcuCode § 7-9-312(4) provides that a secured creditor with a PMSI in collateral other than inventory (e.g. equipment) has priority" }, { "docid": "6280362", "title": "", "text": "equipment, machinery, general intangibles, contract rights, furniture, fixtures and assets of any and every kind, wherever located, now or hereafter belonging to [Debtor] or in which [Debtor] has any interest^] C. ORIX, itself, filed the adversary proceeding that garnered it a right to the debtor’s income tax refund — acting on its security interest in “general intangibles” of the debtor. As noted above, ORIX filed an adversary proceeding to collect a federal tax refund in the net amount of $82,446.46 (AP 93-70194). ORIX claimed a security interest in the income tax refund as a “general intangible”— property of the debtor outside the original equipment. purchase. That suit resulted in an order that grants ORIX the right to the debtor’s $82,446.46 tax refund when it is processed by IRS. (AP Doc. 21 dated October 25, 1993). D. ORIX, itself, objected to the debtor’s sale of collateral other than that which it loaned the debtor money to buy. ORIX objected to the debtor-in-possession’s sale of property other than the heavy equipment it had loaned Delta Resources the money to purchase. On January 8, 1993, (BK Doc. 69), Delta filed a motion for authority to sell property of the estate by private sale free and clear of liens and other interests for minimum stated prices. On January 25, 1993 ORIX objected to Debtor’s motion which included equipment other than that financed by ORIX. (Docs. 99 and 100) On February 8, 1993 an order was entered approving the sale of the collateral, but preserving ORIX’s claimed interest in the collateral. Because ORIX has “actually exercised its rights” against collateral other than the pur chase money collateral, SouthTrust Bank v. Borg-Warner teaches that it “loses its priority status as a purchase money secured lender.” See 760 F.2d at 1243. CONCLUSION The transformation rule is the law in the Eleventh Circuit. Therefore, ORIX’ own actions have cost it its purchase money security interest in Delta Resources’ property and the priority that the PMSI status gave its interest. ORIX is simply a secured creditor. AmSouth Bank, N.A., has a prior perfected security interest in Delta’s machinery and" }, { "docid": "13572224", "title": "", "text": "assets the debtor bought with the proceeds of the creditor’s loan stand as collateral to secure other debt the debtor simultaneously owed the creditor. If the PMSIs of Dunn and the bank are spoiled, then ORIX will have first priority in the dispute and the senior interest in the equipment at issue. II. ORIX HAS THE SUPERIOR SECURITY INTEREST IN THE EQUIPMENT BECAUSE THE TRANSFORMATION RULE SPOILS THE ALLEGED PMSI OF DUNN AND THE BANK ■ A. The transformation rule spoils Dunn’s PMSI. The application of the transformation rule to the Dunn PMSI is straight forward. The parties have stipulated to the fact that the dozer and loader were security for the acquisition debt and other debt Brookwood owed Dunn. (AP Doc. 18). Also, the collateral on the other debt secured the acquisition debt. This is a paradigm illustration of a creditor cross-collateralizing the debts owed to it by a debtor. Though creditors often use cross-col-lateralization to obtain additional security, this credit practice has the detrimental effect of spoiling PMSI status. The security interest is no longer purchase money because the debt secured exceeds the price of what is purchased in the transaction that created the security interest. In re Manuel, 507 F.2d at 993. In this situation, the item purchased secures a debt other than the acquisition debt, which precludes the security interest from being purchase money. In re Freeman, 956 F.2d at 255. Hence, Dunn only had an ordinary security interest as its PMSI was destroyed. Thus, as between Dunn and ORIX, ORIX has the superior interest in the equipment as it was the first to file a financing statement covering the loader and dozer. Ala.Code § 7-9-S12(5). B. The transformation rule spoils the bank’s PMSI. As with Dunn’s PMSI, the transformation rule applies to spoil the bank’s alleged PMSI. The bank admits that the debt- or used the proceeds of the bank’s loan to pay off Dunn on the acquisition debt and to extinguish the debt owed to Maxx. (AP Doc. 18). The debtor’s obligation to Maxx was totally unrelated to the purchase of the loader and" }, { "docid": "6280337", "title": "", "text": "court will attempt to trace the history of this dispute through its various postures as simply as possible. ORIX Credit Alliance, Inc. filed a motion for relief from bankruptcy’s automatic stay December 29,1992. (BK Doc. 48) It sought to enforce what it claimed to be a purchase money security interest (PMSI in credit parlance) against certain equipment purchased at Warrior Tractor and Equipment, and financed by ORIX. That included the following equipment: John Deere 770BH Motor Grader SN 528265 John Deere 544E Wheel Loader SN 534021 John Deere 544E Wheel Loader SN 534267 John Deere 410D Backhoe/Loader John Deere Backhoe/Loader John Deere 892D LC Excavator SN 006297 John Deere 892D LC Excavator SN 006271 John Deere 892D LC Excavator SN 006273 Allied Hoe Pack Model 9801 Compactor SN 8174 Allied Hammer Model 780 SN 1078 LaBounty Shear Model 112 SN 112606 LaBounty Shear Model 112 SN 112534 John Deere 644E Wheel Loader SN 531307 ORIX, itself, stated in the text of the motion that the four notes for purchase of the equipment “also provides that the Debtor grants to the holder of each Note” (ORIX): a security interest in the property and in any and all inventory, goods, equipment, machinery, general intangibles, contract rights, furniture, fixtures and assets of any and every kind, wherever located, now or hereafter[.] Exhibit B to ORIX’s motion was a UCC-1 financing statement filed with the Alabama Secretary of State October 10, 1991 which perfected ORIX’s security interest in the following: All machinery, inventory, equipment, goods and accounts receivable as described in attached entire agreement and/or in any schedule prepared in connection therewith. This UCC form together with the attached security agreement and/or schedule are being submitted for filing herewith as a financing statement. ORIX asked the court for relief from stay because it said its rights in its collateral were not adequately protected and that the excavation equipment was not necessary to the reorganization of the debtor’s excavation business. (The creditor January 4, 1993 amended its motion to delete the two 544E wheel loaders.) Further, on January 25, 1993, ORIX objected (BK Doc. 99)" }, { "docid": "13572217", "title": "", "text": "when due of all Obligations of the Debtor to the Secured Party now or hereafter existing, whether under the Agreement, the Note or otherwise, and whether for principal, interest, fees, expenses or otherwise, and all obligations of the Debtor now or hereafter existing under this Security Agreement. (All such obligations of the Debtor referred to as “Obligations”.) (Underlining for. emphasis) On August 13, 1992, clearly within twenty days after the debtor received possession of the collateral, Dunn timely filed a financing statement covering the equipment with the Alabama Secretary of State (Second UCC filing). (Exhibit D to AP Doe. 8). As of August 7, 1992, Brookwood Sand & Gravel also owed Dunn on other obligations. Both the acquisition debt and the other Dunn indebtedness were, for a time, owed to Dunn simultaneously. The equipment was security for both debts. And collateral on the other debt was security for the acquisition debt. Both debts, for a period of time, were each for tens of thousands of dollars. A financing statement which covered the equipment was filed against the debtor with the Alabama Secretary of State in October of 1992 (the Third UCC filing). This financing statement was subsequently assigned to the Small Business Administration (hereafter the “SBA”). On March 26,1993, the Bank of Tuscaloosa lent the debtor $117,000.00. The bank took a security interest in the loader and dozer as collateral for this loan. (Exhibit I to AP Doc. 8). The bank believed it was receiving a purchase money security interest in the equipment. (Affidavit of James B. Flem-ming, Attachment to AP Doc. 15). The bank did not perform an UCC-11 search before it made the loan to Brookwood. (Affidavit of James B. Flemming, Attachment to AP Doc. 15). The bank was ignorant of the ORIX security interest and financing statement at the time of its loan to the debtor. (Affidavit of James B. Flemming, Attachment to AP Doc. 15). Some $83,657.94 of the proceeds of the bank’s loan were used to extinguish the debt- or’s indebtedness to Maxx Parts & Equipment, Inc. The debtor’s obligation to Maxx was totally unrelated" }, { "docid": "10182168", "title": "", "text": "effect lessee grants to lessor a security interest in the Equipment and any and all inventory, goods, equipment, machinery, fixtures, chattels, furniture, accounts receivable, contract rights, general intangibles, property and assets of any and every kind, wherever located, now or hereafter belonging to Lessee or in which Lessee has any interest, and proceeds thereof, and agrees that any security interest created by this agreement secures any and all obligations of Lessee at any time owing to Lessor, now existing and/or hereafter incurred. The security interest covers all obligations of the Debtor whether “now existing and/or hereafter incurred” and covers collateral “of any and every kind, wherever located, now or hereafter belonging to Lessee”. There is nothing unclear or ambiguous about the language. Accordingly, we hold that the parole evidence of the Debtor will not be admitted and that there is, therefore, no genuine issue of material fact on this issue. II.Orix Perfected Its Security Interest By Filing The June, 1989 Lease As Its Financing Statement. Fifth Third contends that the financing statement filed by Orix in June, 1989 is defective because it does not contain the signature of the Debtor, but has only a copy of the security agreement attached to it. However, pursuant to § 1309.89(A) of the Ohio Revised Code, the copy of the security agreement is sufficient as a financing statement if it contains all the necessary information, is signed by the debtor and the security agreement so provides. The June, 1989 Lease provides “Lessor is hereby authorized to file one or more financing statements or a reproduction hereof as a financing statement”. The filing of a copy of the June, 1989 Lease as a financing statement was proper. Indeed, by the filing of the entire June, 1989 Lease, Fifth Third was clearly put on notice as to the extent of the security agreement held by Orix. Had Fifth Third done a lien search prior to making its August, 1989 loans, it would have seen that the June, 1989 Lease covered all of the Debtor’s assets. III. Orix Acquired a First Priority Security Interest For Its June," }, { "docid": "6280339", "title": "", "text": "to the debtor’s motion to sell various property, including many items which ORIX had not helped finance. (BK Doc. 69, filed January 8,1993) On February 8, 1993, the court entered a document approving the sale — but preserving ORIX’s claimed interest in this collateral. Further, February 11,1993, ORIX filed an adversary proceeding seeking to gain control of a federal income tax return Delta Resources had coming as “a general intangible” — in which ORIX claimed a security interest via its perfection on the alleged purchase money security interest. (AP 92- 72874, Doc. 1) In an October 25, 1993 consent order, the debtor agreed to pay the estimated $82,446.46 tax return over to ORIX when Delta received the refund. The order was signed by counsel for ORIX and Delta Resources and executed by the court. During the course of the dispute over this equipment listed in the motion for relief from stay, two lengthy hearings were held. Am-South asserted its contention that it, and not ORIX was the first lien holder, based on a prior perfected security interest on the equipment in a question. AmSouth’s Claim No. 85 for a total $1,904,-047.43 and the attached documents show a series of security agreements and UCC-1 financing statements (the earliest filed with the Secretary of State in 1987). The last was signed by the debtor January 31,1991. This UCC-1 granted AmSouth a security interest in: All accounts receivable, machinery and equipment of Debtor, whether now owned or hereafter acquired, including any and all additions and accessions thereto and substitutions therefor, including, without limitation, Borrowers’ present fleet of trucks and vehicles and any hereinafter acquired trucks and vehicles, (emphasis added) AmSouth filed this adversary proceeding seeking to have the matter of priority finally decided by the court on March 29, 1993. ORIX’ Proof of Claim No. 109 for $1,039,-436.83 was filed April 12, 1993. It claimed a security interest in Delta Resources’ equipment, inventory, accounts and general intangibles (the category for which it garnered rights to the tax return). As stated above, the UCC-1 financing statement perfecting the interest was filed October 10, 1991" }, { "docid": "6280361", "title": "", "text": "collateral in addition to the machines it had financed were the following items of property of the debtor: (A) Equipment (B) Inventory (C) Accounts (D) General Intangibles In addition, the proof of claim also claimed a security interest in “assets of any and every kind.” Such a description is clearly too broad and general to meet the requirements of Alabama UCC Section 7-9-110 which provides: Sufficiency of Description. For the purposes of this Article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described. (emphasis added) See Barkley Clark, Paragraph 2.9[5][c]; Mongul Enterprises v. Commercial Credit Business Loans, 92 N.M. 215, 585 P.2d 1096 (1978). B. ORIX, itself, cited the additional collateral in its motion for relief from stay. As noted in the statement of facts gleaned from this record ORIX’ motion (Doe. 48) was filed on December 29, 1992 described the “blanket collateral” in Paragraph 2 as follows: a security interest in the property and in any and all inventory, goods, equipment, machinery, general intangibles, contract rights, furniture, fixtures and assets of any and every kind, wherever located, now or hereafter belonging to [Debtor] or in which [Debtor] has any interest^] C. ORIX, itself, filed the adversary proceeding that garnered it a right to the debtor’s income tax refund — acting on its security interest in “general intangibles” of the debtor. As noted above, ORIX filed an adversary proceeding to collect a federal tax refund in the net amount of $82,446.46 (AP 93-70194). ORIX claimed a security interest in the income tax refund as a “general intangible”— property of the debtor outside the original equipment. purchase. That suit resulted in an order that grants ORIX the right to the debtor’s $82,446.46 tax refund when it is processed by IRS. (AP Doc. 21 dated October 25, 1993). D. ORIX, itself, objected to the debtor’s sale of collateral other than that which it loaned the debtor money to buy. ORIX objected to the debtor-in-possession’s sale of property other than the heavy equipment it had loaned Delta Resources the" }, { "docid": "6280338", "title": "", "text": "the Debtor grants to the holder of each Note” (ORIX): a security interest in the property and in any and all inventory, goods, equipment, machinery, general intangibles, contract rights, furniture, fixtures and assets of any and every kind, wherever located, now or hereafter[.] Exhibit B to ORIX’s motion was a UCC-1 financing statement filed with the Alabama Secretary of State October 10, 1991 which perfected ORIX’s security interest in the following: All machinery, inventory, equipment, goods and accounts receivable as described in attached entire agreement and/or in any schedule prepared in connection therewith. This UCC form together with the attached security agreement and/or schedule are being submitted for filing herewith as a financing statement. ORIX asked the court for relief from stay because it said its rights in its collateral were not adequately protected and that the excavation equipment was not necessary to the reorganization of the debtor’s excavation business. (The creditor January 4, 1993 amended its motion to delete the two 544E wheel loaders.) Further, on January 25, 1993, ORIX objected (BK Doc. 99) to the debtor’s motion to sell various property, including many items which ORIX had not helped finance. (BK Doc. 69, filed January 8,1993) On February 8, 1993, the court entered a document approving the sale — but preserving ORIX’s claimed interest in this collateral. Further, February 11,1993, ORIX filed an adversary proceeding seeking to gain control of a federal income tax return Delta Resources had coming as “a general intangible” — in which ORIX claimed a security interest via its perfection on the alleged purchase money security interest. (AP 92- 72874, Doc. 1) In an October 25, 1993 consent order, the debtor agreed to pay the estimated $82,446.46 tax return over to ORIX when Delta received the refund. The order was signed by counsel for ORIX and Delta Resources and executed by the court. During the course of the dispute over this equipment listed in the motion for relief from stay, two lengthy hearings were held. Am-South asserted its contention that it, and not ORIX was the first lien holder, based on a prior perfected" }, { "docid": "13572218", "title": "", "text": "against the debtor with the Alabama Secretary of State in October of 1992 (the Third UCC filing). This financing statement was subsequently assigned to the Small Business Administration (hereafter the “SBA”). On March 26,1993, the Bank of Tuscaloosa lent the debtor $117,000.00. The bank took a security interest in the loader and dozer as collateral for this loan. (Exhibit I to AP Doc. 8). The bank believed it was receiving a purchase money security interest in the equipment. (Affidavit of James B. Flem-ming, Attachment to AP Doc. 15). The bank did not perform an UCC-11 search before it made the loan to Brookwood. (Affidavit of James B. Flemming, Attachment to AP Doc. 15). The bank was ignorant of the ORIX security interest and financing statement at the time of its loan to the debtor. (Affidavit of James B. Flemming, Attachment to AP Doc. 15). Some $83,657.94 of the proceeds of the bank’s loan were used to extinguish the debt- or’s indebtedness to Maxx Parts & Equipment, Inc. The debtor’s obligation to Maxx was totally unrelated to the acquisition of the equipment. The debtor used the remaining proceeds of the bank loan ($33,337.80) to pay off Dunn on the acquisition debt. However, the debtor continued to owe Dunn on other indebtedness. On April 2, 1993, the Bank of Tuscaloosa filed with the Alabama Secretary of State a financing statement against Brookwood covering the equipment (the Fourth UCC filing). The bank’s financing statement was the fourth financing statement filed against the loader and dozer and was filed more than eight months after ORIX’s financing statement had been filed. Dunn concedes that whatever security interests now has in the equipment is inferior to the interest of ORIX. The SBA also makes no claims to priority over ORIX on this equipment. Dunn never assigned to the bank the sales agreement, the acquisition indebtedness, or any security agreement or financing statement it had received in connection with the sale of the equipment. The debtor continues to owe ORIX more than $170,000. CONCLUSIONS OF LAW I. THE BANKRUPTCY COURT MUST APPLY THE TRANSFORMATION RULE TO THE" }, { "docid": "6280360", "title": "", "text": "IS APPARENT THAT ORIX HAS LOST ITS PMSI PRIORITY UNDER THE TRANSFORMATION RULE SouthTrust Bank v. Borg-Warner Acceptance Corp. held that the creditors who actually exercise the future advances and after- acquired property clauses in their security agreements destroy their favored status as holders of a purchase money security interest. ORIX has acted on the claims and clauses which now destroy its PMSI status at least four times in this bankruptcy case. The instances include the following: A.ORIX’ own proof of claim sought payment for obligations secured by property other than the equipment it initially loaned money for. ORIX filed Proof of Claim No. 105 (filed in the Bankruptcy Court Western Division on April 6, 1993); and Proof of Claim No. 109 (originally filed in the Southern District of Alabama on March 31,1993 but later filed on April 12, 1993 in the Western Division of the Northern District of Alabama) in the amount of $1,039,436.83. The ORIX proof of claim claimed purchase money security interests under four separate notes. Included in the purported purchase money collateral in addition to the machines it had financed were the following items of property of the debtor: (A) Equipment (B) Inventory (C) Accounts (D) General Intangibles In addition, the proof of claim also claimed a security interest in “assets of any and every kind.” Such a description is clearly too broad and general to meet the requirements of Alabama UCC Section 7-9-110 which provides: Sufficiency of Description. For the purposes of this Article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described. (emphasis added) See Barkley Clark, Paragraph 2.9[5][c]; Mongul Enterprises v. Commercial Credit Business Loans, 92 N.M. 215, 585 P.2d 1096 (1978). B. ORIX, itself, cited the additional collateral in its motion for relief from stay. As noted in the statement of facts gleaned from this record ORIX’ motion (Doe. 48) was filed on December 29, 1992 described the “blanket collateral” in Paragraph 2 as follows: a security interest in the property and in any and all inventory, goods," }, { "docid": "13572227", "title": "", "text": "an interest in the property at issue in this adversary proceeding. A separate order will be entered which is consistent with these findings pursuant to Fed.R.Bank.P. 7052. DONE AND ORDERED. ORDER DETERMINING PRIORITY OF INTEREST This matter came before the court on cross-motions for summary judgment. Both the plaintiff, ORIX Credit Alliance, and the defendant, Bank of Tuscaloosa, requested that their interests in the equipment at issue be found superior to the opposing party’s interest. The court has reviewed the motions and the supporting materials and finds that ORIX Credit Alliance has first priority in the equipment at issue. As a result of this finding it is hereby ORDERED, DECREED, AND ADJUDGED: 1. That the transformation rule is the applicable law in this circuit for determining whether an alleged purchase money security interest (PMSI) is a true PMSI or is an ordinary security interest. 2. That the transformation rule applies to spoil the PMSI status claimed by the Bank of Tuscaloosa. 3. That Ala.Code § 7-9-312(5) governs the priority dispute between two ordinary secured parties with interests in the same equipment. 4. That the first-to-file, first-in-right priority rule of Ala.Code § 7-9-312(5) gives first priority to the secured creditor that was the first to file a financing statement covering the collateral at issue. 5. That ORIX Credit Alliance was the first secured creditor to file a financing statement covering the equipment at issue. 6. That ORIX Credit Alliance has the superior interest in the equipment at issue as against the Bank of Tuscaloosa. DONE AND ORDERED. . Hence, ORIX obtained a perfected security interest in all after acquired equipment of the debt- or, including the equipment at issue. . This is a second-in-tíme, first-in-right priority rule as the purchase money secured creditor is given the senior interest in the collateral though it was the second creditor to perfect a security interest in the collateral. . Note, however, that the application of the transformation rule only works to destroy the purchase money nature of the security interest. The creditor still has a security interest in the collateral, but it is now" }, { "docid": "6280363", "title": "", "text": "money to purchase. On January 8, 1993, (BK Doc. 69), Delta filed a motion for authority to sell property of the estate by private sale free and clear of liens and other interests for minimum stated prices. On January 25, 1993 ORIX objected to Debtor’s motion which included equipment other than that financed by ORIX. (Docs. 99 and 100) On February 8, 1993 an order was entered approving the sale of the collateral, but preserving ORIX’s claimed interest in the collateral. Because ORIX has “actually exercised its rights” against collateral other than the pur chase money collateral, SouthTrust Bank v. Borg-Warner teaches that it “loses its priority status as a purchase money secured lender.” See 760 F.2d at 1243. CONCLUSION The transformation rule is the law in the Eleventh Circuit. Therefore, ORIX’ own actions have cost it its purchase money security interest in Delta Resources’ property and the priority that the PMSI status gave its interest. ORIX is simply a secured creditor. AmSouth Bank, N.A., has a prior perfected security interest in Delta’s machinery and equipment as well as accounts receivable. However, the bank has no security interest in Delta’s general intangibles. Therefore, AmSouth’s security interest in all the debtor’s accounts receivable and its equipment is superior to that of ORIX Credit Alliance — including the equipment ORIX originally financed for the debtor, and which was the subject of previous contested matters in this court. This memorandum of decision constitutes factual findings and conclusions of law pursuant to Fed.R.Bankr.P. 7052. A separate order will be entered consistent with this opinion on the issue of the transformation rule. Additionally, a separate pretrial will be set on the counterclaim of ORIX (Doe. 18) on the counts of (1) marshalling and (2) subordination; and on its third-party complaint against Navistar Financial Corporation and Concord Commercial Credit Corporation. . Ala.Code § 7-9-312(5) provides as follows: (5) In all cases not governed by other rules stated in this section (including cases of pur chase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4) of this section)," }, { "docid": "6280364", "title": "", "text": "equipment as well as accounts receivable. However, the bank has no security interest in Delta’s general intangibles. Therefore, AmSouth’s security interest in all the debtor’s accounts receivable and its equipment is superior to that of ORIX Credit Alliance — including the equipment ORIX originally financed for the debtor, and which was the subject of previous contested matters in this court. This memorandum of decision constitutes factual findings and conclusions of law pursuant to Fed.R.Bankr.P. 7052. A separate order will be entered consistent with this opinion on the issue of the transformation rule. Additionally, a separate pretrial will be set on the counterclaim of ORIX (Doe. 18) on the counts of (1) marshalling and (2) subordination; and on its third-party complaint against Navistar Financial Corporation and Concord Commercial Credit Corporation. . Ala.Code § 7-9-312(5) provides as follows: (5) In all cases not governed by other rules stated in this section (including cases of pur chase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interest in the same collateral shall be determined according to the following rules: (emphasis added) (a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral, or the time the security interest is first perfected, whichever is earlier, provided there is no period thereafter when there was neither filing nor perfection. (emphasis added) (b) So long as conflicting security interests are unperfected, the first to attach has priority. . Ala.Code § 7-9-312(4) provides: (4) A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral or its proceeds if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within 20 days thereafter. . Ala.Code § 7-9-107 provides: A security interest is a \"purchase money security interest” to the extent that it is: (a) Taken or retained by the seller of the collateral to secure all or" }, { "docid": "13572220", "title": "", "text": "FACTS OF EACH CASE AND DETERMINE IF THE ALLEGED PURCHASE MONEY SECURITY INTEREST (PMSI) IS A TRUE PMSI OR AN ORDINARY SECURITY INTEREST. This adversary proceeding came before the court on the parties’ cross-motions for sum mary judgment. Since the parties have stipulated to all the relevant facts, there is no genuine issue as to any material fact. Consequently, this court is authorized under Fed. R.Bankr.P. 7056 and Fed.R.Civ.P. 56(c) to decide the purely legal question presented and enter judgment in favor of the party entitled to relief as a matter of law. This case hinges on the purchase money status of the bank. The significance of a purchase money security interest (PMSI) is that the state commercial code often gives the holder of a PMSI priority over another secured creditor that has an earlier perfected security interest (SI) in the same collateral. In this case, the collateral at issue is equipment of the debtor. AlcuCode § 7-9-312(4) provides that a secured creditor with a PMSI in collateral other than inventory (e.g. equipment) has priority over a conflicting SI in the same collateral, if the PMSI is perfected at the time the debtor received possession of the collateral or within twenty days thereafter. In this case, the bank is asserting purchase money status and the first priority flowing from that status. The bank did file a financing statement perfecting its SI in the collateral within twenty days of the debtor receiving possession of the equipment. Hence, the bank met the formal requirement of Ala. Code § 7-9-312(4) to gain preemptive priority rights in the equipment. However, ORIX posits that the transformation rule spoils the bank’s PMSI such that the second-in-time, first-in-right priority rule of Ala.Code § 7-9-312(4) is not applicable. Thus, this court must examine the viability of the bank’s claim to purchase money status in light of the transformation rule. The transformation rule is the law in this circuit. The Court of Appeals for the Eleventh Circuit initially adopted the rule in 1975 when it noted that a “purchase money security interest cannot exceed the price of what is" }, { "docid": "13572228", "title": "", "text": "with interests in the same equipment. 4. That the first-to-file, first-in-right priority rule of Ala.Code § 7-9-312(5) gives first priority to the secured creditor that was the first to file a financing statement covering the collateral at issue. 5. That ORIX Credit Alliance was the first secured creditor to file a financing statement covering the equipment at issue. 6. That ORIX Credit Alliance has the superior interest in the equipment at issue as against the Bank of Tuscaloosa. DONE AND ORDERED. . Hence, ORIX obtained a perfected security interest in all after acquired equipment of the debt- or, including the equipment at issue. . This is a second-in-tíme, first-in-right priority rule as the purchase money secured creditor is given the senior interest in the collateral though it was the second creditor to perfect a security interest in the collateral. . Note, however, that the application of the transformation rule only works to destroy the purchase money nature of the security interest. The creditor still has a security interest in the collateral, but it is now an ordinary security interest instead of a purchase money one. . There is no debate regarding the nature of ORIX’s security interest as it is without question an ordinary security interest. . This result follows from the first-to-file, first-in-right rule which governs priority disputes between secured creditors who do not have any preemptive priority rights. Ala.Code § 7-9-312(5). Ala.Code § 7-9-312(5) provides: (5) In all cases not governed by other rules stated in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interests in the same collateral shall be determined according to the following rules: (a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection. (b) So long as conflicting" }, { "docid": "18888760", "title": "", "text": "does not affect this adversary proceeding. . 9A Vt.Stat.Ann. § 9-312(3) provides: (3) A purchase money security interest in inventory collateral has priority over a conflicting security interest in the same collateral if (a) the purchase money security interest is perfected at the time the debtor receives possession of the collateral; and (b) any secured party whose security interest is known to the holder of the purchase money security interest or who, prior to the date of the filing made by the holder of the purchase money security interest, had filed a financing statement covering the same items or type of inventory, has received notification of the purchase money security interest before the debtor receives possession of the collateral covered by the purchase money security interest; and (c) such notification states that the person giving the notice has or expects to acquire a purchase money security interest in inventory of the debtor, describing such inventory by item or type. . 9A Vt.Stat.Ann. § 9-302(1), When filing is required to perfect security interest; security interests to which filing provisions of this article do not apply, provides: (1) A financing statement must be filed to perfect all security interests except the following: (a) a security interest in collateral in possession of the secured party under section 9-305; (b) a security interest temporarily perfected in instruments or documents without delivery under section 9-304 or in proceeds for a 10 day period under section 9-306; (c) a purchase money security interest in farm equipment having a purchase price not in excess of $500; but filing is required for a fixture under section 9-313 or for a motor vehicle required to be licensed; (d) a purchase money security interest in consumer goods; but filing is required for a fixture under section 9-313 or for a motor vehicle required to be licensed; (e) an assignment of accounts or contract rights which does not alone or in conjunction with other assignments to the same assignee transfer a significant part of the outstanding accounts or contract rights of the assignor; (f) a security interest of a collecting bank" }, { "docid": "6280351", "title": "", "text": "and, thus, could be avoided under Section 522(f)(2)(A). Now, some 20 months later, ORIX Credit Alliance, Inc. contends that the transformation rule is not the law in the state of Alabama. ORIX’ argument about what the law should be may well have some merit. If this bankruptcy court were writing on a clean slate, on a question of first impression, it might well reject the transformation rule. However, this court views the Eleventh Circuit’s continued adherence to the rule (readopted within the last 20 months) as binding authority. This court must adhere to the Eleventh Circuit’s position and hold that ORIX’ PMSI has been transformed into a non-purchase money security interest and thus is subordinate to the prior perfected security interest of AmSouth Bank, N.A. As pointed out above, the definition of purchase money security interest in Ala.Code § 7-9-107 (1975) is very narrow: Definitions: “Purchase money security interest.” A security interest is a “purchase money security interest” to the extent that it is (a) taken or retained by the seller of the collateral to secure all or part of its price; or (b) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral of such value is in fact so used, (emphasis added) If a debtor and creditor add additional non-purchase collateral to the collateral in a purchase money security interest, then according to the transformation rule, the PMSI is destroyed. The creditor will still have a security interest, but may be primed by a previously perfected security interest. These issues create disputes primarily in two situations: 1. “Debt Add-On Clauses” — where additional debt is added to the original PMSI debt. 2. “Collateral Add-On Clauses” — where the debtor grants to the secured party a security interest in collateral other than the purchase money collateral. See Gerald T. McLauglin, “Add On” Clauses in Equipment Purchase Money Financing: Too Much of a Good Thing, 49 Fordham L. Review 661-707 (1981); Nathaniel Hansford, The Purchase Money Security Interest in Inventot'y Versus the After-Acquired" } ]

[ { "docid": "16881137", "title": "", "text": "JONES, Circuit Judge. In 1937 the taxpayer received certain stock and stock warrants of the Pittsburgh Hotels, Inc. (hereinafter called the “New Company”) in exchange for second mortgage bonds of the Pittsburgh Hotels Corporation (hereinafter called the “Old Company”) which he had purchased for cash in 1928. The exchange was made pursuant to a plan approved by the District Court in a 77B proceeding for the reorganization of the Old Company. The taxpayer sold his stock and warrants of the New Company in 1939 and in his income tax return for that year took credit for a loss measured by the original cost of his second mortgage bonds in the Old Company less the sum realized from his sale of the stock and warrants. The Commissioner disallowed the deduction and determined a deficiency in tax for the year in question. The Commissioner based his action on the conclusion that the plan of reorganization of the Old Company, approved and carried out in 1937 in the bankruptcy proceeding, was not a reorganization within the meaning of Sec. 112(g) (1) of the Revenue Act of 1936, upon which the taxpayer had relied for his contention that no gain or loss was recognizable from the exchange transaction in the year in which it had taken place, viz., 1937. The Commissioner accordingly ruled that the cost basis of the taxpayer’s stock and warrants for the purpose of determining gain or loss from the sale thereof in 1939 was the original cost of his Old Company bonds reduced by the amount of the loss thereon ascertainable upon the exchange for stock and warrants made in 1937. On the taxpayer’s petition for a re-determination of the deficiency found by the Commissioner, the Tax Court sustained the action of the Commissioner on the authority of Helvering v. Southwest Consolidated Corp., 315 U.S. 194, 62 S.Ct. 546, 86 L.Ed. 789. The petitioner now concedes that the ruling of the Tax Court was correct so far as the applicability of Sec. 112(g) (1) of the Revenue Act of 1936 is concerned. He contends, however, that Sec. 112(b) (5), as" } ]

[ { "docid": "13980398", "title": "", "text": "for redetermination of the liability set forth in the notice of disallowance was filed. The Commissioner moved to dismiss upon the ground that The petition had been filed 92 days after The mailing of the notice. The Tax Court granted this motion but this court reversed the decision and remanded the •case for hearing. Central Paper Co. v. Commissioner of Internal Revenue, 6 Cir., 199 F.2d 902. After the remand the Commissioner ¡filed an answer which contained no affirmative matter. Subsequently and be■fore hearing on the merits, the Commissioner filed a motion for leave to file an ■amended answer appended to the motion. In his amended answer the Commission•er pleaded affirmatively that in his determination of taxpayer’s excess profits tax liability he had failed, in arriving at taxpayer’s average net income for the base period years, to give effect to the reduction in net income for the taxable year 1940 required under the decision in Central Paper Co. v. Commissioner, 6 Cir., 158 F.2d 131, 134; that the making of that adjustment with respect to The income for 1940 and giving effect To the provisions of Section 711(a)(1) •(C) would result in deficiencies in the ■amounts of $23,737.04, $48,855.78 and $23,055.76, respectively, for the fiscal years 1943, 1944 and 1945, claim for which deficiencies was made under Section 272(e); that, if the provisions of Section 711(a)(1)(C) should be held inapplicable, deficiencies would amount to $23,248.91, $47,852.39, and $24,540.50, respectively, for the fiscal years ended 1943, 1944, and 1945, claim for which deficiencies was also made, alternatively, pursuant to Section 272(e). Taxpayer filed a motion to strike the portion of the Commissioner’s amended answer containing the above affirmative matter on the ground that the court did not have jurisdiction to consider those issues or to find the deficiencies as prayed. The Tax Court granted the motion. In the Blue Diamond case the Commissioner’s notice of disallowance was mailed September 29, 1949. Taxpayer filed a petition attacking claimed error in the Commissioner’s disallowance of its claims for relief under Section 722 for the taxable years ended March 31, 1943, 1944, and 1945." }, { "docid": "21527804", "title": "", "text": "Littleton, Judge, delivered the opinion of the court: By order entered May 3,1948, plaintiff’s motion for a new trial was allowed and the findings of fact, conclusion of law and opinion, filed February 2, 1948, were vacated and withdrawn. Plaintiff sues under the provisions of Section 820 of the Bevenue Act of 1938 (52 Stat. 447, 581-583; 3801 Internal Revenue Code) to recover $7,935.58, with interest, overpayment of income tax for the fiscal year ending June 30, 1935. This overpayment, which is admitted, resulted from the erroneous valuation of inventories and the resulting computation of an excessive operating profit, by reason of the inclusion by plaintiff in its inventories of wheat and flour for 1935, of certain amounts representing the value of certain quantities of wheat (apparently on “option” or “call”), to which plaintiff did not have title during such year, and the subsequent exclusion of such amounts by defendant in May 1940, when determining and computing plaintiff’s income and tax liability for the fiscal year ending June 30, 1936. At that time assessments and refunds for the fiscal year 1935 and all prior fiscal years in which the same error was made, were barred by the statute of limitation. An overpayment was computed for 1935, and a deficiency was determined and collected for 1936 by reason of adjustments in income due to the corrections and adjustments made in the inventories for these years. The determination became final in 1944 when the Supreme Court affirmed the decision of the Tax Court in a proceeding involving the deficiency for 1936. Commissioner v. Gooch Milling & Elevator Co., 320 U. S. 418. Within one year thereafter plaintiff filed a claim for refund of the overpayment for 1935, under Section 820, supra. That section is a relief provision and was enacted to relieve both taxpayers and the Government from the unjust effects, in certain cases, resulting from the correction of errors where the operation of other provisions of the revenue laws ordinarily precludes correction of tax results, through refunds or credits or collection of deficiencies, flowing from an erroneously inconsistent position previously maintained" }, { "docid": "13980397", "title": "", "text": "ALLEN, Circuit Judge. The petitions to review in these companion cases arise out of similar proceedings asking for redetermination of excess profits tax liability under Section 722 of the Internal Revenue Code of 1939, 26 U.S.C.A. Int.Rev.Acts, pages 22 et seq., 35, in each of which the Commissioner sought by amended answer to introduce “standard issues” and prayed for the determination of deficiencies. The Tax Court decided that it had no jurisdiction in such a proceeding as to ■so-called “standard issues.” In the Central Paper Company case Taxpayer had filed a claim for refund for The three fiscal years ended June 30, 1943, June 30, 1944, and June 30, 1945, relating to the application of Section '722. In its claim for refund taxpayer .alleged that the excess profits tax liability as determined by the Commissioner computed without the benefit of Section 722 was excessive and discriminatory. On September 6, 1950, the Commissioner in accordance with Section '732, 26 U.S.C.A. Int.Rev.Acts, page 86, forwarded a notice of disallowance of The claim for refund. Thereafter a peTition for redetermination of the liability set forth in the notice of disallowance was filed. The Commissioner moved to dismiss upon the ground that The petition had been filed 92 days after The mailing of the notice. The Tax Court granted this motion but this court reversed the decision and remanded the •case for hearing. Central Paper Co. v. Commissioner of Internal Revenue, 6 Cir., 199 F.2d 902. After the remand the Commissioner ¡filed an answer which contained no affirmative matter. Subsequently and be■fore hearing on the merits, the Commissioner filed a motion for leave to file an ■amended answer appended to the motion. In his amended answer the Commission•er pleaded affirmatively that in his determination of taxpayer’s excess profits tax liability he had failed, in arriving at taxpayer’s average net income for the base period years, to give effect to the reduction in net income for the taxable year 1940 required under the decision in Central Paper Co. v. Commissioner, 6 Cir., 158 F.2d 131, 134; that the making of that adjustment with respect to" }, { "docid": "17923315", "title": "", "text": "LITTLETON, Judge. By order entered May 3, 1948, plaintiff’s motion for a new trial was allowed and the findings of fact, conclusion of law and opinion, filed February 2, 1948, 75 F.Supp. 474 were vacated and withdrawn. Plaintiff sues under the provisions of Section 820 of the Revenue Act of 1938, 52 Stat. 447, 581-583, § 3801, Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 3801, to recover $7,935.58, with interest, overpayment of income tax for the fiscal year ending June 30, 1935. This overpayment, which is admitted, resulted from the erroneous valuation of inventories and the resulting computation of an excessive operating profit, by reason of the inclusion by plaintiff in its inventories of wheat and flour for 1935, of certain amounts representing the value of certain quantities of wheat (apparently on “option” or “call”), to which plaintiff did not have title during such year, and the subsequent exclusion of such amounts by defendant in May 1940, when determining and computing plaintiff’s income and tax liability for the fiscal year ending June 30, 1936. At that time assessments and refunds for the fiscal year 1935 and all prior fiscal years in which the same error was made, were barred by the statute of limitation. An overpayment was computed for 1935, and a deficiency was determined and collected for 1936 by reason of adjustments in income due to the corrections and adjustments made in the inventories for these years. The determination became final in 1944 when the Supreme Court affirmed the decision of the Tax .Court in a proceeding involving the deficiency for 1936. Commissioner of Internal Revenue v. Gooch Milling & Elevator Co., 320 U.S. 418, 64 S.Ct. 184, 88 L.Ed. 139. Within one year thereafter plaintiff filed a claim for refund of the overpayment for 1935, under Section 820, supra. That section is a relief provision and was enacted to relieve both taxpayers and the Government from the unjust effects, in certain cases, resulting from the correction of errors where the operation of other provisions of the revenue laws ordinarily precludes correction of tax results, through refunds or credits or" }, { "docid": "17923320", "title": "", "text": "the expiration of the periods of limitation upon assessment or filing claim for refund for such taxable year. Plaintiff’s return for 1935 was investigated and audited, and a deficiency of $10,-854.98 was assessed and collected April 14, 1937. The return for 1936 was also audited and a deficiency of $8,912.78 was assessed and collected December 28, 1937. In these examinations and audits plaintiff’s inventories and the operating profits determined and shown in connection therewith, were not changed or adjusted. Later, during 1938, a revenue agent made a further investigation and audit in connection with plaintiff’s returns, and reexamined and re-audited plaintiff’s books and records and its tax returns back to July 1, 1928, the beginning of its fiscal year 1929. He found that plaintiff’s inventories of wheat and flour used in the returns for the fiscal years 1929 to 1936, inclusive, for the purpose of determining the amount of taxable income, had been overvalued by reason of the erroneous inclusion in the opening and closing inventories for each year of an amount as cost or value of wheat, to which plaintiff did not have title in such year. After excluding such amounts from the cost or value of the opening and closing inventories for each year, he recomputed plaintiff’s operating profit, net income and tax for each year on the basis of the corrected inventories, and, on June 3, 1939, made a report of his investigation and audit to the Commissioner of Internal Revenue. The Commissioner examined and approved the report in a final determination mailed to plaintiff on May 7, 1940, demanding payment of a further deficiency of $6,663.42 for the fiscal year 1936. This deficiency, together with interest thereon of $2,983.-84, was paid March 11, 1944, after an appeal to the Tax Court. The stipulated facts do not show the amounts of the adjustments made in the inventories and the net income for any of the fiscal years except the fiscal years ending June 30, 1935 and 1936. It is stipulated,\" however, that for the fiscal years 1929 to 1934, inclusive, the overpayments resulting from the decreases in" }, { "docid": "15469363", "title": "", "text": "included in the partnership return the gain from this sale and reported all required pertinent data in respect thereto. The respective partners paid the tax upon their respective shares of the income thus reported. The Commissioner of Internal Revenue, upon examining the partnership returns for the fiscal years ending June 30, 1938, and June 30, 1939, determined that Chil-howee Mills was not a partnership but was an association taxable as a corporation. He thereupon sent a notice of deficiency upon that basis, including among other items in the income for the fiscal year 1939 the gain on the sale of the real estate. Chilhowee Mills appealed to the then United States Board of Tax Appeals. The sole question before the Board was whether the petitioner was taxable as a partnership or, being an association, was taxable as a corporation. The Board held for the petitioner 3 and pointed out in its opinion that it was foreclosed by the pleadings from the question latent in the case of whether the proceeds from the sale of the real estate was to be considered income of the partnership or income taxable as corporate income to the corporation in dissolution. No appeal being taken, the decision of the Board became final. Thereafter, on January 9, 1943, the Internal Revenue Agent in Charge at Nashville, Tennessee, pursuant to the general authority delegated to him by the Commissioner, sent to Chilhowee Mills a statement showing his computation of the distributive net income of the partnership for the fiscal years 1937, 1938 and 1939, and thereafter sent to each of the partners a statement showing his computation of the respective partner’s individual income tax liability upon that basis. In the latter statements, he said: “On June 30, 1937, Chilhowee Mills, Inc., Athens, Tennessee, dissolved and distributed all of its assets in complete liquidation by opening accounts with each of its holders of common stock and crediting to those accounts the entire amount of its capital as represented by the common stock outstanding, and surplus. * * * After dissolution of the corporation, the business was continued as" }, { "docid": "14082998", "title": "", "text": "extraction. The value of a mineral property is the combined value of its component parts. The taxpayer, in order to extract the coal from the culm or refuse hanks, and to wash, size and load it for shipment, erected -an -anthracite breaker and installed other equipment and machinery a!t a cost to it of approximately $150,000. It t-hen proceeded with th-e operations -enumerated, during the taxable years. In ks -return for the fiscal year ended June 30, 1943, the taxpayer computed depletion on a percentage -basis,, land claimed a deduction of about $22,000; in its return for the fiscal year ended June 30, 1944, the taxpayer elected to take depletion on a percentage basis, but did not claim th-e deduction because the question was being -contested by the taxpayer f'or the earlier years. After the -Commissioner disallowed the deduction for depletion for the taxable year ended June 30, 1943, and determined a deficiency upon other grounds' for the fiscal year ended June 30, 1944, the taxpayer filed -a petition for review of the Commissioner’s determination ' with the Tax -Court covering ibot-h years. The Tax Court upheld the Commissioner ■in his determination of deficiencies in excess profits t-ax of $21,552.99 and $5,230.-79 for the fiscal years ended June 30, 1943, and 1944, respectively. The '-Commissioner contends (1) a culm bank is not a “mine”; (2) -extraction of coal from a culm bank is not “mining”; and (3) there i-s absent the -requisite “economic interest” for -depletion allowance. The taxpayer takes the position (1) whether a culm bank is a “mine” is immaterial; (2) extraction of coal from a culm bank is “mining” since Congress, -in amending Section 114(h) (4) by adding paragraph (B), broadened -the definition of the word “mining” to include not merely the extraction of ores or minerals from the ground, but also the ordinary treatment processes norm-ally applied by coal mine operators such as cleaning, breaking, sizing and loading for shipment; and (3) it has the requisite “economic interest.” “(c) The term ‘mineral deposit’ refers to minerals in place. The cost of a mineral deposit is what" }, { "docid": "21337252", "title": "", "text": "LARAMORE, Judge: These are related actions brought by the same taxpayer. The cases were tried separately, but were consolidated for oral argument since they both arise from the same factual situations. In Case No. 367-56, taxpayer seeks to recover $14,-403.14 in interest on amounts of Federal income and excess profits taxes, together with interest thereon, allegedly overpaid in fiscal years ending April 30, 1952 and 1953. The issue involved in this case is whether the amounts remitted were “overpayments” within the meaning of section 3771(a) of the Internal Revenue Code of 1939, so as to entitle taxpayer to interest when these amounts were refunded in 1955. In Case No. 419-56, taxpayer seeks to recover $47,483.09 as alleged overpay-ments of Federal income and excess profits taxes for fiscal years ending April 30, 1951, 1952, 1953 and 1954. Taxpayer’s claims are based on two separate claims for refund. First, taxpayer claims that for the fiscal years ending April 30, 1952 and 1953, the Commissioner of Internal Revenue erroneously and illegally disallowed deductions for interest allegedly paid in each of said years in connection with Federal income and excess profits taxes allegedly overpaid in the years 1952 and 1953. Second, taxpayer claims that the Commissioner erroneously and illegally did not allow it to use the “historical method” of computing its invested capital in determining its excess profits credit which denial allegedly resulted in an overpayment of taxes for the years ending April 30, 1951 through 1954. We shall treat each case separately. A. Case No. 367-56 The facts in this case have been stipulated; it is the legal conclusion from them which is the subject of controversy. The Commissioner of Internal Revenue determined and assessed a deficiency in taxpayer’s excess profits tax for the fiscal year ending April 30, 1942. This assessed deficiency, with interest, was duly paid on February 21, 1949. Taxpayer filed a timely claim for refund. On April 3, 1950, as the Commissioner had taken no formal action with respect to this claim, taxpayer instituted a suit for refund in the U. S. District Court for the Southern District of" }, { "docid": "9537940", "title": "", "text": "worthless loans to Tabacol on June 30, 1971. Respondent contends simply that neither Tabacol’s stock nor any portion of its debts to petitioner was worthless as of June 30,1971. Moreover, respondent argues that even if these items were worthless, petitioner may not increase its deduction for partially worthless debts for its fiscal year ended June 30, 1971, by $129,045, the amount of respondent’s adjustment for fiscal year ended June 30, 1965, since petitioner did not charge off that amount as required by section 166(a)(2). We turn first to petitioner’s contention that section 165(g) entitles it to an ordinary loss deduction of $112,500. Generally, a taxpayer owning stock, which is a capital asset, is entitled to a capital loss in the year in which the stock becomes wholly worthless. Secs. 165(a), 165(g)(1), and 165(g)(2)(A). Under section 165(g)(3), however, a loss incurred by a domestic corporation on wholly worthless stock in an affiliated corporation may be converted from a capital loss to an ordinary loss. Sec. 1.165-5(d)(l), Income Tax Regs. Worthlessness is a factual question and petitioner has the burden of proof to overcome respondent’s determination that its stock in Tabacol did not become worthless in fiscal year ended June 30, 1971. Boehm v. Commissioner, 326 U.S. 287, 294 (1945); Mueller v. Commissioner, 60 T.C. 36 (1973), affd. in part 496 F.2d 899 (5th Cir. 1974); Rule 142(a), Tax Court Rules of Practice and Procedure. We are convinced petitioner has satisfied its burden on this issue. In Morton v. Commissioner, 38 B.T.A. 1270, 1278-1279 (1938), affd. 112 F.2d 320 (7th Cir. 1940), the Board set forth the following standards for determining worthlessness: a loss by reason of the worthlessness of stock must be deducted in the year in which the stock becomes worthless and the loss is sustained, that stock may not be considered as worthless even when having no liquidating value if there is a reasonable hope and expectation that it will become valuable at some future time, and that such hope and expectation may be foreclosed by the happening of certain events such as the bankruptcy, cessation from doing business," }, { "docid": "4184585", "title": "", "text": "$8,000.00. A revenue agent’s report for the fiscal year 1935 showed an overassessment of $7,935.58. The Commissioner, based, on this report, determined a deficiency of $4,731.69‘in income taxes, and a deficiency of $1,931.73 on account of excess profit taxes for the fiscal year ended June 30, 1936. The taxpayer then filed its petition with the United States Board of Tax Appeals for a redetermination of the deficiencies. In its original petition to the Board the taxpayer alleged that the Commissioner had determined its liability for income and excess profits for the year ended June 30, 1936, to be $14,951.85; that it had paid $8,288.43 of such tax, leaving a balance of $6,663.42; that there was in fact no deficiency, but that it was entitled to a refund of $8,288.43; that in determining, the deficiency of $6,663.42 the Commissioner had erroneously reduced petitioner’s inventories at June 30, 1935, in the aggregate amount of $237,104.33, which amount was added to petitioner’s income for the year ended June 30, 1936, but was not deducted from its income in determining its tax liability for the year ended June 30, 1935. Thereafter the taxpayer filed a motion with the Board requesting leave to file an amended petition which contained allegations that the Commissioner used an inventory of $123,424.25 on July 1, 1935, in computing its taxable net income for the year ended June 30, 1936; that if the same inventory were used June 30, 1935, in computing the taxable net income for the year ended June 30, 1935, and no other adjustments were made there would be a net loss for the year and an overassessment of $11,038.73. The amended petition sought alternative relief and asked to have the overassessment for the fiscal year 1935 applied as an offset or recoupment against the deficiencies found for the fiscal year 1936. The motion for leave to amend was taken under advisement pending consideration of the case on its merits. The Board entered findings of fact as follows: “Petitioner is a Nebraska corporation with its principal office in Omaha. Its income tax returns were filed with the" }, { "docid": "2131057", "title": "", "text": "a redetermi-nation of the deficiencies. In late October, the estate moved the tax court to dismiss for lack of jurisdiction so much of the petition that referred to the calendar year ending December 31, 1981. The basis of the motion was that the notice was invalid since it referred to neither tax year ending May 11, 1981 nor tax year ending April 30, 1982. The tax court granted the estate’s motion, noting that its jurisdiction depended upon the commissioner’s issuance of a notice of deficiency. 26 U.S.C. § 6214(a), Rule 13(a), Tax Court Rules of Practice and Procedure. The tax court also noted that any error in the notice relating to the tax year would be ignored if the taxpayer was not misled. However, since both the first page and appended computations showed the same wrong year, the tax court found that the estate was unable to determine which taxable year was referred to in the notice. B. Discussion The statutory notice of deficiency is often referred to as the taxpayer’s “ticket to the tax court.” Corbett v. Frank, 293 F.2d 501, 502 (9th Cir.1961); Midland Mortgage Co. v. Commissioner, 73 T.C. 902, 905 (1980); Baron v. Commissioner, 71 T.C. 1028, 1034 (1979). It affords the taxpayer the opportunity to file a petition with the tax court and seek a redetermination of the deficiency. 26 U.S.C. § 6213(a). The commissioner cannot assess, levy, or begin collection proceedings until the notice has been mailed; until the expiration of the taxpayer’s time to bring a petition; and, if a petition is brought, until the tax court has made a determination. 26 U.S.C. § 6213(a). Once the petition is brought, the tax court has “jurisdiction to redetermine the correct amount of the deficiency.” 26 U.S.C. § 6214(a). The statute does not specify the form or content of the notice. The purpose of the notice “is only to advise the person who is to pay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough.” Olsen v. Helvering, 88 F.2d 650, 651 (2nd Cir.1937) (Hand, L., J.)." }, { "docid": "17738943", "title": "", "text": "for refund filed by the plaintiffs was based upon the following ground as stated therein: “That the income of $8,016.10 in 1937 to Taxpayer’s former wife from an irrevocable trust does not represent income to him and should not be taxed to him.” (The claim for refund of 1938 taxes was the same except for amount and date). It has been several times held that a claim which fairly advises the Commissioner of the nature of the taxpayer’s claim and which is not rejected by the Commissioner because of lack of details, but is acted upon by him as sufficient in its general form complies with the statutory requirement. Lucas v. Fidelity & Columbia Trust Co., 6 Cir., 89 F.2d 945; Reynolds v. McMurray, 10 Cir., 77 F.2d 740; McKesson & Robbins v. Edwards, 2 Cir., 57 F.2d 147; Foster Box Board Co. v. Clarke, D.C.N.D.N.Y., 7 F.Supp. 682. See also Tucker v. Alexander, 275 U.S. 228, 48 S.Ct. 45, 72 L.Ed. 253; United States v. Kales, 314 U.S. 186, 62 S.Ct. 214, 86 L.Ed. 132. In this case the judgment under consideration is one phase of the trust issue and not a separate, independent ground of relief. The amended and supplemental answer raising the issue was not tendered until several months after the case was tried and submitted. The court rules that the claim for refund as filed and as treated by the Commissioner was a sufficient compliance with the statute. 10. The Commissioner erred in making the deficiency income tax assessment against the taxpayer by reason of the $4,800 per year paid by the trustees to Helen Strong Belknap in the years 1937 and 1938 and the taxpayer is entitled to recover the amount which he was caused to pay by reason of such ruling." }, { "docid": "15855069", "title": "", "text": "one and computation of interest only on the net deficiencies due the government. In upholding the commissioner’s position and dismissing the taxpayer’s suit for refund, Judge Martin said: “An analysis of the plaintiff’s computation appears to show that income taxes imposed in Chapter 1 and excess-profits taxes imposed by Chapter 2 have been treated as one type of tax. Since the income taxes and the excess-profits taxes are separate and distinct types of taxes there appear to be no provisions of the Internal Revenue Code to warrant the plaintiff’s treat ment of the two types as one tax for .the purpose of computing interest. Interest was properly computed on the several amounts of excess-profits and declared value excess-profits tax deficiencies for each of the fiscal years 1943 and 1944, sought to be recovered. Interest was also computed and allowed on the overpayments of income taxes for the fiscal years 1943 and 1944 and were included in the overassessment determined for the plaintiff.” This decision, squarely contrary to the position taken below, seems to us persuasive in its reasoning. The concept of separate taxable units is of course a fairly usual one in the revenue law, as we have had occasion to hold only recently with reference to different taxable years. Rosenthal v. C. I. R., 2 Cir., 205 F.2d 505, 511; and see also Helvering v. Pfeiffer, 302 U.S. 247, 58 S.Ct. 159, 82 L.Ed. 231; Arrowsmith v. C. I. R., 344 U.S. 6, 73 S.Ct. 71, 97 L.Ed. 6. So on a taxpayer’s appeal from the commissioner’s determination of a deficiency in tax for 1936, the Board was held without jurisdiction to determine the amount of a 1935 overpayment. C. I. R. v. Gooch Milling & Elevator Co., supra, 320 U.S. 418, 64 S.Ct. 184, 88 L.Ed. 139. In Manning v. Seeley Tube & Box Co., 338 U.S. 561, 70 S.Ct. 386, 94 L.Ed. 346, a taxpayer was held not entitled to a refund of the interest assessed on a tax deficiency which was later abated under the carry-back provisions of the Code by a net operating loss for" }, { "docid": "23536269", "title": "", "text": "volume of net sales than anticipated. At the end of 1973, Talcott refused to make any further loans to Remco, and Remco discontinued operations because of a lack of working capital. Remco ceased operations in January of 1974, and its assets were turned over to Talcott. On its federal income tax return for the fiscal year ending April 30, 1974, taxpayer claimed a deduction in the amount of $3,582,848 as a loss on its investment in the Remco stock and its advances to Remco. This claimed deduction resulted in a net operating loss for which taxpayer claimed carry-over deductions to offset its income for the fiscal years ending April 30, 1971, April 30, 1972, April 30, 1973, June 30, 1974, and June 30, 1975. On audit the Commissioner determined that the losses claimed by taxpayer were capital losses which are deductible only to the extent of capital gains. Since taxpayer had no capital gains in that year, the Commissioner determined that no deduction was permitted. In addition, the Commissioner disallowed taxpayer’s net operating loss deductions for the other fiscal years that had been based on the deductions claimed for April 30,1974 fiscal year. Taxpayer was issued a statutory notice of deficiency to that effect. The Tax Court sustained the Commissioner’s determination. The Tax Court found that taxpayer’s loss on its investment in the Remco stock was capital, rather than ordinary, in nature. The Tax Court also found that taxpayer purchased the Remco stock as an investment and, as a result, taxpayer failed to establish that the purchase fell within the limited, judicially-created exception to the general rule that a loss sustained with respect to stock is treated as a capital loss. See Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 76 S.Ct. 20, 100 L.Ed. 29 (1955). The Tax Court disallowed taxpayer’s claim to a deduction as bad debts under 26 U.S.C. § 166, for the advances it had made to Remco, finding that these advances were not loans but were instead capital contributions. The Tax Court thus concluded that all of taxpayer’s losses were capital in nature which" }, { "docid": "4184584", "title": "", "text": "GARDNER, Circuit Judge. This case is before us on petition to review a decision of the Board of Tax Appeals determining a deficiency in income and excess profit taxes of petitioner for the fiscal year ended June 30, 1936, in the respective amounts of $4,731.69 and $1,931.73. Petitioner is a Nebraska corporation operating flour mills. Following the death of its president on June 11, 1938, an audit of the books showed that all inventories as far back as 1928 had been overstated. The reduced inventory for the fiscal year 1936 was first computed by petitioner’s accountants and later accepted by the Commissioner as the basis for determining tax deficiencies. Petitioner’s income tax return for the fiscal year 1936 reported a net loss, but the Commissioner reduced the opening inventory of July 1, 1935, that being the beginning of petitioner’s fiscal year, by $237,104.33, and the deficiency resulted primarily from that adjustment. Based on these corrected inventories the petitioner had overpaid its income taxes for all the fiscal years 1928 to 1934 inclusive in excess of $8,000.00. A revenue agent’s report for the fiscal year 1935 showed an overassessment of $7,935.58. The Commissioner, based, on this report, determined a deficiency of $4,731.69‘in income taxes, and a deficiency of $1,931.73 on account of excess profit taxes for the fiscal year ended June 30, 1936. The taxpayer then filed its petition with the United States Board of Tax Appeals for a redetermination of the deficiencies. In its original petition to the Board the taxpayer alleged that the Commissioner had determined its liability for income and excess profits for the year ended June 30, 1936, to be $14,951.85; that it had paid $8,288.43 of such tax, leaving a balance of $6,663.42; that there was in fact no deficiency, but that it was entitled to a refund of $8,288.43; that in determining, the deficiency of $6,663.42 the Commissioner had erroneously reduced petitioner’s inventories at June 30, 1935, in the aggregate amount of $237,104.33, which amount was added to petitioner’s income for the year ended June 30, 1936, but was not deducted from its income in" }, { "docid": "4319787", "title": "", "text": "the Tax Court that the trust assignments of 1940 and those of 1941 were substantially alike. We next discuss briefly the various incidents of these agreements. These were treated at some length in the opinion of the Tax Court. These incidents are treated seriatim in the brief for taxpayers, also in the brief for the Commissioner. The taxpayers, we think, fail to appreciate that however slight may be each individual retained right, we are here primarily concerned with the overall picture, the summation of the entire bundle of retained rights. When these are all added together and viewed as a whole, in the light of the surrounding circumstances, they seem to furnish ample warrant for the decision which the Tax Court reached. Very vital is the actual control and conduct of the two businesses, after the agreements, during the tax years in question. And more important here is what was actually done rather than what might have been done under the theoretical power given to the trustees. The taxpayers managed these businesses just as before. Neither services nor capital were contributed, of course, by the schoolgirl daughters. Nor did the co-trustee, Mann, participate in the conduct of these businesses; his activities, purely perfunctory, were confined to the signing of checks and income tax returns. See Central National Bank v. Commissioner, 6 Cir., 141 F.2d 352, 153 A.L.R. 542; Bush v. Commissioner, 2 Cir., 133 F.2d 1005; Helvering v. Elias, 2 Cir., 122 F.2d 171. Profits were indeed allocated to the daughters on the books; yet these were, during the tax years before us, all plowed back in these businesses. And, by the terms of the partnership instruments, any profits not demanded by a partner within 90 days of the close of a fiscal year, were to be credited to capital account and could not thereafter be withdrawn “except in case of mutual agreement”. Quite germane here are these statements of Circuit Judge Phillips in Grant v. Commissioner (Strong v. Commissioner), 10 Cir., 150 F.2d 915, 917, 918: “The question is not whether petitioners could have regained the legal title to" }, { "docid": "11011885", "title": "", "text": "GOODRICH, Circuit Judge. This litigation concerns the taxpayer’s liability for personal holding company surtax for the years 1939 and 1940. It comes to us on an appeal from the decision of the Tax Court in favor of the Commissioner. The taxpayer here concedes all but two points settled against him by the decision of the court below. The first point is that the Transportation Service Associates, Inc., distributed its assets in kind in complete liquidation prior to the close of its fiscal year which ended November 30, 1940. If this position is sustainable, then it had no undistributable profits at the close of the year upon which personal holding company surtax could be laid. Pembroke Realty & Securities Corporation v. Commissioner of Internal Revenue, 2 Cir., 1941, 122 F.2d 252. The Tax Court decided this question against the taxpayer. It started with the proposition that liquidation is a question of fact. Kennemer v. Commissioner of Internal Revenue, 35 B. T. A. 415 (1937), affirmed 5 Cir., 1938, 96 F.2d 177. It then examined the evidence for and against the conclusion that the liquidation was completed prior to November 30, 1940. To show liquidation there were resolutions of the Directors on November 22 adopting a plan of distribution. There were receipts of signed consents of scheduled distribution to the stockholders prior to the end of the taxable year. On the other hand, the taxpayer’s books and its tax return showed that at the end of the taxable year petitioner owned the securities theretofore kept in its portfolio and also showed its liabilities for accounts and notes payable as well as its capital stock liability. In other words, the Tax Court considered the items of evidence which tended to show liquidation prior to November 30 and likewise considered those items tending to show that liquidation did not take place until after the'close of the taxpayer’s fiscal year. From that the conclusion was drawn and the point made 'thato there was no distribution in liquidation prior to the end of the taxable year. It is the Tax Court’s function to draw the conclusion" }, { "docid": "8488248", "title": "", "text": "assumed by plaintiff on April 5, 1937) plus $223,300 (thé fair market value of the 1937 Assets as determined by the Court), a total of $394,161.67. Issue No. 2 — Excess Depreciation It has been stipulated that in determining the gain or loss realized by plaintiff in its fiscal year ended March 31, 1947 on the sale of its South Portland plant to Maine Specialty Co. on September 6, 1946, the Commissioner reduced the cost basis of the assets sold, other than the 1937 Assets, by $30,392.28, which represented depreciation allowed plaintiff on its income tax returns for its fiscal years ended in 1938 through 1940 (years which have been closed) with respect to the 1937 Assets, the basis of which he had determined to be zero. The effect of this was to increase the gain or reduce the loss on the sale by $30,392.28. In the light of Pittsburgh Brewing Co., 1938, 37 B.T.A. 439, 445 (acq.), reversed on other grounds, 3 Cir., 1939, 107 F.2d 155, the Government has conceded that this treatment was erroneous, and this Court so holds. Issue No. 3 — Deduction of Capital Stock Tax It has been stipulated that on or about July 19, 1944 plaintiff filed a capital stock tax return and paid a capital stock tax of $12,500 with respect to its capital stock tax year ended June 30, 1944 and deducted that amount in determining its taxable income for its fiscal year ended March 31, 1945. The Commissioner determined that the deduction allowable on account of capital stock taxes for that fiscal year was only $2,500, which was the amount of capital stock tax paid by plaintiff in its fiscal year ended March 31, 1946 with respect to its capital stock tax year ended June 30, 1945. The stipulation further discloses that plaintiff has consistently accrued and deducted its capital stock tax in the year in which the capital stock tax return was filed and the tax paid. The Government has conceded that the Commissioner’s treatment was erroneous and contrary to Tax Court decisions, which the Commissioner has accepted, and" }, { "docid": "7889721", "title": "", "text": "PICKETT, Circuit Judge. ' This petition asks for a review of a decision of the Tax Court of the United States. It involves a deficiency in the corporate income and declared value excess profits tax of the A. & A. Tool & Supply Company, a dissolved corporation, hereinafter referred to as the taxpayer, for the fiscal year ending June 30, 1942. In his determination, the Commissioner of Internal Revenue found the deficiencies to be: income tax $1,743.14, declared value excess profits tax $1,322.13, excess profits tax $2,176.98. The taxpayer petitioned the Tax Court for a redetermination of the deficiencies. Upon redetermination by that court, the deficiencies in income and declared value excess profits tax w;ere fixed in the amounts of $738.70 and $454.23 respectively. It was found that there was no deficiency in excess profits tax for that year. The taxpayer claims that the Tax Court erred in its consideration of these questions: 1. Should gross sales be reduced by a $1,500 credit allowance on return of sludge pump? 2. Did notes taken in part payment for a drilling rig and other items have a fair market value in excess of 90% of face? 3. Are petitioners entitled to a deduction from gross income of $3,000 for rent? 4. Are petitioners entitled to an increased allowance of $9,345.92 for purchases ? 5. Are petitioners entitled to a deduction from gross income for commissions and expenses of J. Weldon Cornett? At the outset it is contended that the Tax Court erred in assuming that the taxpayer was on a cash basis and not on an accrual basis. There are statements in the court’s decision which indicate that it may have thought that the taxpayer should be considered on a cash basis because of failure to keep books and that it considered some of the above items as though the taxpayer was on a cash basis. The taxpayer, in filing his return and the Commissioner using available books and records in determining the deficiency, considered opening and. closing inventories and other accrued items. Ordinarily when there are inventories to consider, the accrual" }, { "docid": "12650852", "title": "", "text": "Co., 228 U.S. 295, 306, 33 S.Ct. 419, 57 L.Ed. 842; Zonne v. Minneapolis Syndicate, 220 U.S. 187, 31 S.Ct. 361, 55 L.Ed. 428; United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32, 33, 35 S.Ct. 499, 59 L.Ed. 825. In the present case, however, the record shows that during the years 1939 and 1943 the trustees undertook to further or facilitate the progress of the oil exploitation by granting to the lessee a water lease and a release of further water rights, respectively. Under the purpose for which we have held that the trust was created, these were business acts in relation to the realization of profits from the developments on the property. As section 137.31 of Treasury Regulations 64 provides, “any corporation (or association) organized for profit and carrying out any of the purposes of its organization is doing business within the meaning of the (Internal Revenue) Code.” As to the two fiscal years ending June 30, 1939 and June 30, 1942, the trust accordingly had a liability for capital stock taxes, as an association doing business during each of those years. On the basis of what has been said, the judgment is reversed to the extent that it allows recovery of any of the income taxes involved and to the extent that it allows recovery of the capital stock taxes assessed for the two fiscal years ending June 30, 1939, and June 30, 1942. Judgment reversed to extent indicated and cause remanded. COLLET, Circuit Judge (dissenting). I do not concur in the majority opinion for the following reason. It is conceded that the declaration of trust did not require as a matter of law the conclusion that the trust was a taxable association. It is further conceded that the determination of the status of the trust for present purposes rested upon the proper factual conclusion to be drawn from the evidence. The trial court made definite findings on the determinative issue of fact and found from the evidence that the trust was not operated in such a manner that it could be characterized as" } ]

[ { "docid": "8033641", "title": "", "text": "(1) (1964), in that the Company interfered with, coerced, and restrained its employees in the exercise of their rights under Section 7 to organize and bargain collectively. In addition to the customary cease and desist order, the Board set aside the previous certification election, which the-Union had lost by a slim vote, and ordered a new one. Even though there had been no charge or finding of a violation of Section 8(a) (5), which proscribes refusals to'bargain with representatives of employees, the Board later, on the Union’s motion, reopened the proceedings. It was duly found, by both the Examiner and the Board, that prior to the Company’s unfair labor practices a majority of the employees in the appropriate bargaining unit had signed union authorization cards. Cf. Amalgamated Clothing Workers (Hamburg Shirt Corp.) v. NLRB, 125 U.S.App. D.C. 275, 371 F.2d 740 (decided December 15, 1966). In its 1966 Supplemental Decision and Order the Board directed the Company to bargain with the Union without the necessity of a new election. In attacking this bargaining order the-Company relies on the recent Second Circuit case of NLRB v. Flomatic Corp., 347 F.2d 74, 77-80 (1965). In that opinion the court refused to enforce a bargaining order entered to rectify a violation of Section 8(a) (1) alone. Judge Anderson writing for the court stated that “restraint” was indicated in regard to the dictation of the “strong medicine”' of a bargaining order, because of its troublesome tendency to encroach on the employees’ Section 7 right not to organ ize a labor union and the Section 9(c) (1) right to a secret ballot election. .Judge Anderson implies that a bargaining order would be approved only when the Company’s conduct consisted of a “broad-gauged campaign” that was “flagrantly hostile to the organizing efforts” of the Union, where there were “glaring violations.” He states that a bargaining order is inappropriate in the ease of “a borderline, unaggravated § 8(a) (1) violation, standing alone,” resulting in only “a moderate unbalancing of an election by an employer.” The opinion concludes that in such a ease “a more appropriate remedy” is" } ]

[ { "docid": "910008", "title": "", "text": "Co., 386 F.2d 562, 570 (C.A. 4th Cir. 1967); see also NLRB v. Heck's, Inc., 398 F.2d 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e. g., United Steelworkers of America v. NLRB, 126 U.SApp.D.C. 215, 376 F.2d 770 (1967); J.C. Penney Co., Inc. v. NLRB, 384 F.2d 479, 485-486 (C.A. 10th Cir. 1967). 395 U.S. at 613-14, 89 S.Ct. at 1939-1940. By the above discussion, was the Supreme Court advising lower courts of their views as to the Board’s power to issue bargaining orders in exceptional cases “without need of inquiring into majority status,” or was the Court’s decision an intellectual excursion not intended as a sign post giving directions which lower courts should follow in the future? Although several commentators have observed that the Court did not specifically endorse the issuance of bargaining orders in the absence of a card majority, virtually every court that has discussed the issue has stated that a bargaining order may be issued in the absence of a card majority. In NLRB v. Armcor Industries Inc., 535 F.2d 239, 244 (3d Cir. 1976), Judge Rosenn, writing for this court, said: It is by now a familiar refrain that the Gissei court posited a tripartite categorization of unfair labor practices for considering the issuance of bargaining orders without requiring elections. First, in “exceptional cases” marked by “outrageous” and “pervasive” unfair labor practices which eliminate the possibility of holding a fair election, a bargaining order may issue even without showing that the union at one point had a card majority. We agree with Judge Rosenn’s analysis of Gissei that the Board in exceptional cases has the right to issue bargaining orders even where there is no showing that the union at one point had a card majority. Judge Rosenn’s analysis has been repeated almost verbatim in a series of cases in this court, and other courts have" }, { "docid": "11658624", "title": "", "text": "is through the Board’s election procedures, bargaining status may also be established through the employer’s voluntary recognition after the union claims majority status. A third method of establishing union representation is through a Board-ordered recognition without an election. In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court set forth the standards for approving bargaining orders issued by the Board to remedy unfair labor practices committed by an employer during a union campaign. Under Gissel, a bargaining order may issue (1) without a showing that the union at one point represented a majority of the employees, if the employer’s “outrageous” and “pervasive” unfair labor practices have eliminated the possibility of holding a fair election, or (2) in “less extraordinary cases marked by less pervasive practices,” if the union at one point represented a majority of the employees, the employer’s unfair labor practices “have the tendency to undermine majority strength and impede the election processes,” and “the possibility of erasing the effects of past practices and of ensuring a fair election ... by the use of traditional remedies though present, is slight. ...” In the instant case, the Board determined the Company’s misconduct fell within the second standard outlined in Gissel. Thus, before we can consider enforcing the bargaining order issued by the Board, it is necessary to determine whether the Union represented a majority of employees at the time it made its demand. We begin by examining whether Pierce and Ohr were employees of Wards on July 9 since their votes were necessary to maintain a majority. Although the Board normally has wide discretion in supervising the election process and in resolving questions arising during the course of representation proceedings, see, e.g., NLRB v. A.J. Tower Co., 329 U.S. 324, 330-31, 67 S.Ct. 324, 327-28, 91 L.Ed. 322 (1946); National Van Lines, Inc. v. NLRB, 273 F.2d 402, 407 (7th Cir. 1960), no particular deference is due the Board’s conclusion here. In Choc-Ola Bottlers, Inc. v. NLRB, 478 F.2d 461 (7th Cir. 1973), this court reviewed a person’s eligibility to vote" }, { "docid": "2753723", "title": "", "text": "v. S. S. Logan Packing Co., 386 F.2d at 570. See also N. L. R. B. v. Heck’s, Inc., 398 F.2d at 339. The decisions in Heck’s, Gissel, and General Steel were reviewed, reversed and remanded in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). There, the Court, while recognizing that a secret election is the preferred method of ascertaining if a union has majority support, nonetheless approved the issuance and enforcement of a bargaining order in those instances in which we said in Logan and Heck’s that we would enforce the order. But it described a second category of cases in which a bargaining order was also appropriate and should be enforced: The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser showing of employer misconduct is appropriate * * * where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. * * * 395 U.S. at 614-615, 89 S.Ct. at 1940. In addition to describing the second category of cases, the Court pointed out that “there is still a third" }, { "docid": "566708", "title": "", "text": "cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. 395 U.S. at 613-14, 89 S.Ct. at 1939-40 (citations omitted) (emphasis added). The Court thus reinforced its approval of the “Category I” non-majority bargaining order described by the Fourth Circuit by indicating that a showing of majority support is necessary only in “less extraordinary cases” falling into Category II. The Court also described a third category of even less serious offenses in which no bargaining order was appropriate without an election. Id. at 615, 89 S.Ct. at 1941. The Court’s description of Category I cases of outrageous and pervasive violations where a bargaining order is warranted “without need of inquiry into majority status” is characterized by the majority as mere dictum, a palliative to the rejected and presumably dejected Fourth Circuit. I am not as certain" }, { "docid": "910007", "title": "", "text": "union’s majority support. The Gissel court stated in full: Before considering whether the bargaining orders were appropriately entered in these cases, we should summarize the factors that go into such a determination. Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” NLRB v. S.S. Logan Packing Co., 386 F.2d 562, 570 (C.A. 4th Cir. 1967); see also NLRB v. Heck's, Inc., 398 F.2d 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e. g., United Steelworkers of America v. NLRB, 126 U.SApp.D.C. 215, 376 F.2d 770 (1967); J.C. Penney Co., Inc. v. NLRB, 384 F.2d 479, 485-486 (C.A. 10th Cir. 1967). 395 U.S. at 613-14, 89 S.Ct. at 1939-1940. By the above discussion, was the Supreme Court advising lower courts of their views as to the Board’s power to issue bargaining orders in exceptional cases “without need of inquiring into majority status,” or was the Court’s decision an intellectual excursion not intended as a sign post giving directions which lower courts should follow in the future? Although several commentators have observed that the Court did not specifically endorse the issuance of bargaining orders in" }, { "docid": "7846998", "title": "", "text": "nonetheless still have the tendency to undermine majority strength and impede the election procsses. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.” In N.L.R.B. v. Dixisteel Buildings, Inc., 445 F.2d 1260, 1265 (8th Cir. 1971), Judge Bright spoke for this Court in upholding a bargaining order in these words: “In order to justify a bargaining order in the situation where the employer’s unfair practices have not been egregious, the record need show that the Union held a majority at one point, not that the Union held a majority according to signed cards up to the time of the election.” In our opinion, some of the actions of the Company in this case were erroneous and illegal as heretofore set forth, but they were not egregious to the extent that a bargaining order should be enforced in the absence of a showing that the Union once had cards from a majority of the employees. That portion of the Board’s order will not be enforced. The appropriate remedy, as originally urged in the alternative by the General Counsel to the Examiner, was to open and count the votes of Pols-ter, Evans, and Schütz, and in the event the Union did not receive a majority, the election could be set aside and new balloting take place. V. MAKE WHOLE REMEDY The Union urged the Board to require the Company to “make whole” the employees and the Union for benefits of collective bargaining they lost as a result of the Company’s refusal to bargain with the Union. The Board declined on the basis that it lacks the statutory authority to grant such a remedy. In view of our holding that the bargaining order issued by the Board was inappropriate in this case, it logically follows that the suggested make-whole remedy is inappropriate, and we express no opinion" }, { "docid": "566687", "title": "", "text": "“left open the possibility” of issuing bargaining orders without inquiry into majority status in sufficiently egregious cases. Id. at 613, 89 S.Ct. at 1939; see Logan Packing, 386 F.2d at 570 (Board “may have the power” to impose a bargaining order as a remedy for egregious unfair labor practices). Because Logan Packing, in dictum, had raised the possibility of Board-imposed bargaining orders in “exceptional cases” marked by “outrageous” and “pervasive” unfair labor practices, the Supreme Court in Gissel was able to say that “the actual area of disagreement between our position here and that of the Fourth Circuit is not large.” Gissel, 395 U.S. at 613, 89 S.Ct. at 1939. Thus, the High Court’s concentration apparently was on the quality of employer conduct Logan Packing indicated might justify a bargaining order, not on the notion that such an order could issue “without need of inquiry into majority status.” The probability that the High Court referred only casually to dispensing with inquiry into majority status is heightened by the statement the Court made immediately after it set out the Logan Packing dictum: The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. Gissel, 395 U.S. at 614, 89 S.Ct. at 1940. The Court cited two cases as illustrative of the Board’s policy: United Steelworkers of America v. NLRB, 376 F.2d 770 (D.C.Cir.1967), and J.C. Penney Co. v. NLRB, 384 F.2d 479, 485-86 (10th Cir.1967). Both involved employer misconduct designed to destroy the union’s card majority. . A third category Gissel mentioned includes violations not serious or extensive enough to warrant a bargaining order because remedies concededly within the Board’s authority would adequately ensure a fair election. See 395 U.S. at 615, 89 S.Ct. at 1941. . United Dairy I, 242 NLRB at 1040 (Member Penello, concurring in part and dissenting in part), quoted in Conair, 261 NLRB at 1196 (Chairman Van de Water, concurring in part and dissenting" }, { "docid": "566707", "title": "", "text": "be the only way to “effectuate the policies of the Act.” A. The Gissel Decision and Category I Cases In Gissel, the Court decided that a majority of union authorization cards, unambiguous on their face, constituted “convincing evidence of majority support.” If an employer refused to bargain with a union that had obtained a majority of valid cards, and at the same time committed independent unfair labor practices tending to undermine the union’s majority strength and impede the election process, the Board could issue a bargaining order as a remedy even if the union subsequently lost the election. The Court went on to summarize in some detail the factors that determine the appropriateness of a bargaining order in three categories of cases: Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such" }, { "docid": "2753722", "title": "", "text": "authorization cards. We did so because of what we thought was the inherent unreliability of the signed authorization cards. Crawford Mfg. Co. v. N. L. R. B., 386 F.2d 367 (4 Cir. 1967), cert. den., 390 U.S. 1028, 88 S.Ct. 1408, 20 L.Ed.2d 286 (1968); N. L. R. B. v. S. S. Logan Packing Co., 386 F.2d 562 (4 Cir. 1967); N. L. R. B. v. Sehon Stevenson & Co., Inc., 386 F.2d 551 (4 Cir. 1967); N. L. R. B. v. Heck’s, Inc., 398 F.2d 337 (4 Cir. 1968); N. L. R. B. v. Gissel Packing Co., 398 F.2d 336 (4 Cir. 1968); General Steel Products, Inc. v. N. L. R. B., 398 F.2d 339 (4 Cir. 1968). While declining enforcement of the bargaining portion of the orders in those cases, we nonetheless said that in the “exceptional” ease, marked by “outrageous” and “pervasive” unfair labor practices, we would enforce a bargaining order so predicated because the effects of the unfair labor practices could not be eliminated by traditional remedies. N. L. R. B. v. S. S. Logan Packing Co., 386 F.2d at 570. See also N. L. R. B. v. Heck’s, Inc., 398 F.2d at 339. The decisions in Heck’s, Gissel, and General Steel were reviewed, reversed and remanded in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). There, the Court, while recognizing that a secret election is the preferred method of ascertaining if a union has majority support, nonetheless approved the issuance and enforcement of a bargaining order in those instances in which we said in Logan and Heck’s that we would enforce the order. But it described a second category of cases in which a bargaining order was also appropriate and should be enforced: The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser" }, { "docid": "16391318", "title": "", "text": "had been unilaterally promulgated, and to post appropriate notices at its facility. In a separate proceeding, conducted in response to the remand, the Board reconsidered its initial order that directed Hedstrom to bargain with the Union. Relying in part on its findings that Hedstrom had committed subsequent unfair labor practices by coercively interrogating and threatening its employees, as well as on its review of the record in light of the opinion in Hedstrom I, the Board filed a supplementary decision and reinstated its original bargaining order. Hedstrom then petitioned this Court to review and set aside both the supplemental order requiring Hedstrom to bargain with the Union, as well as the separate order relating to the subsequent unfair labor practice findings. The Board cross-applied for enforcement of both orders. We now address these two issues. II. The focal point for decisional analysis of the law pertaining to bargaining orders is the Supreme Court’s discussion in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). In Gissel, the Court declared that a bargaining order may appropriately be imposed in place of a new election not only in cases involving outrageous conduct, but also in other than extraordinary cases that are “marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes.” 395 U.S. at 614-15, 89 S.Ct. at 1940. The Board’s authority to issue a bargaining order on a lesser showing of employer misconduct is appropriate when there is also a showing that at one point the union had the support of a majority of employees. In such a case, a bargaining order serves both to effectuate ascertained employee free choice and to deter employer misconduct. Indeed, the Supreme Court emphasized in Gissel that once it has been shown that the union has achieved majority status, “effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.” 395 U.S. at 614-615, 89 S.Ct. at 1940. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration" }, { "docid": "566627", "title": "", "text": "good) brother” judgment for a majority of employees’ express choice of a bargaining representative? That basic decision, we believe, should be left to Congress, as the organ of government accountable to the people for establishing the main lines of our national labor relations policy. 1. The Gissel dictum The Supreme Court has not yet confronted a case requiring it to decide whether the NLRB has the power to issue a bargaining order where the union has not shown majority status. In NLRB v. Gissel Packing Co., 395 U.S. 575, 613-14, 89 S.Ct. 1918, 1939-40, 23 L.Ed.2d 547 (1969), however, the High Court, citing dictum from NLRB v. S.S. Logan Packing Co., 386 F.2d 562, 570 (4th Cir.1967), appeared to contemplate the possibility of such an order. Gissel itself reversed a Fourth Circuit decision which had refused to sanction a bargaining order despite serious employer misconduct and in face of proof that the union had once obtained authorization cards from a majority of employees. The Court observed, nonetheless, that its views and those of the Fourth Circuit were not far apart: [T]he actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” Gissel, 395 U.S. at 613-14, 89 S.Ct. at 1939-40 [quoting Logan Packing, 386 F.2d at 570) (emphasis added). As the Supreme Court recognized, the Fourth Circuit’s decisions in both Gissel and Logan Packing generally disfavored remedial bargaining orders. Indeed, the Logan Packing dictum indicated the Fourth Circuit’s uncertainty whether" }, { "docid": "22719139", "title": "", "text": "“Board may, . . . upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships.” Frank Bros., supra, at 705-706. Before considering whether the bargaining orders were appropriately entered in these cases, we should summarize the factors that go into such a determination. Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” NLRB v. Logan Packing Co., 386 F. 2d 562, 570 (C. A. 4th Cir. 1967); see also NLRB v. Heck’s, Inc., 398 F. 2d 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a§8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e. g., United Steelworkers of America v. NLRB, 126 U. S. App. D. C. 215, 376 F. 2d 770 (1967); J. C. Penney Co., Inc. v. NLRB, 384 F. 2d 479, 485-486 (C. A. 10th Cir. 1967). The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct" }, { "docid": "566688", "title": "", "text": "set out the Logan Packing dictum: The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. Gissel, 395 U.S. at 614, 89 S.Ct. at 1940. The Court cited two cases as illustrative of the Board’s policy: United Steelworkers of America v. NLRB, 376 F.2d 770 (D.C.Cir.1967), and J.C. Penney Co. v. NLRB, 384 F.2d 479, 485-86 (10th Cir.1967). Both involved employer misconduct designed to destroy the union’s card majority. . A third category Gissel mentioned includes violations not serious or extensive enough to warrant a bargaining order because remedies concededly within the Board’s authority would adequately ensure a fair election. See 395 U.S. at 615, 89 S.Ct. at 1941. . United Dairy I, 242 NLRB at 1040 (Member Penello, concurring in part and dissenting in part), quoted in Conair, 261 NLRB at 1196 (Chairman Van de Water, concurring in part and dissenting in part). Judge Wald suggests that in Sinclair, one of the four cases the Gissel opinion resolved, the Supreme Court in fact approved issuance of a bargaining order without inquiry into the union’s majority status. See Wald dissent at 1392. She apparently reads the Supreme Court’s words, “even in the absence of a § 8(a)(5) violation,” to mean “without need of inquiry into majority status.” We do not comprehend why these statements should be regarded as synonymous. At the time the Court decided Gissel, Board doctrine had it that an employer could in good faith refuse to bargain in face of a union’s proffer of a card majority without committing an § 8(a)(5) violation. See, e.g., Aaron Bros. Co., 158 NLRB 1077 (1966). Thus, an § 8(a)(5) violation required a card majority plus something more — employer bad faith in rejecting a bargaining request. When the Gissel Court, in discussing Sinclair, said a bargaining order could issue “even in the absence of a § 8(a)(5) violation” it likely meant the employer’s bad faith in refusing" }, { "docid": "566629", "title": "", "text": "a nonmajority bargaining order could be reconciled with the statute even in the most egregious circumstances: “[I]n light of the guaranty of [NLRA] § 7 of employees’ rights not to be represented [the use of a nonmajority bargaining order], if ever appropriate, must be reserved for extraordinary cases.” 386 F.2d at 570-71 (footnote omitted) (emphasis added). The Supreme Court’s Gissel dictum, reciting Fourth Circuit dictum, has been read to encompass cases with two characteristics: the employer’s conduct falls into the most egregious category; the union’s campaign at no point achieved a card majority. Cases with these characteristics are commonly described as Gissel “category one” cases. The Supreme Court’s holding in Gissel, however, is confined to a second category, cases in which the union shows that at one point it had majority employee support: The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should re-emphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. 395 U.S. at 614-15, 89 S.Ct. at 1940-41 (emphasis added) (citation omitted). The Court thus anchored its holding in Gissel" }, { "docid": "566628", "title": "", "text": "Circuit were not far apart: [T]he actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in “exceptional” cases marked by “outrageous” and “pervasive” unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” Gissel, 395 U.S. at 613-14, 89 S.Ct. at 1939-40 [quoting Logan Packing, 386 F.2d at 570) (emphasis added). As the Supreme Court recognized, the Fourth Circuit’s decisions in both Gissel and Logan Packing generally disfavored remedial bargaining orders. Indeed, the Logan Packing dictum indicated the Fourth Circuit’s uncertainty whether a nonmajority bargaining order could be reconciled with the statute even in the most egregious circumstances: “[I]n light of the guaranty of [NLRA] § 7 of employees’ rights not to be represented [the use of a nonmajority bargaining order], if ever appropriate, must be reserved for extraordinary cases.” 386 F.2d at 570-71 (footnote omitted) (emphasis added). The Supreme Court’s Gissel dictum, reciting Fourth Circuit dictum, has been read to encompass cases with two characteristics: the employer’s conduct falls into the most egregious category; the union’s campaign at no point achieved a card majority. Cases with these characteristics are commonly described as Gissel “category one” cases. The Supreme Court’s holding in Gissel, however, is confined to a second category, cases in which the union shows that at one point it had majority employee support: The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The" }, { "docid": "7846997", "title": "", "text": "the portion of the Board’s order relating to those four findings will be enforced except as they were used as a basis for the issuance of the bargaining order. IV. THE BARGAINING ORDER The bargaining order issued by the Board was based partially upon its determination that on May 2, 1969, the Union represented a majority of the employees in the bargaining unit. This in turn was premised on the finding that Maxwell and Hardy were supervisors, leaving only 18 in the bargaining unit of which 10 had signed cards. As we have heretofore shown, the bargaining unit actually contained 20 members,- including Maxwell and Hardy, and therefore the Union did not demonstrate that it ever had a majority of the unit as members. The Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547 (1969), stated as follows: “The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary eases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election procsses. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.” In N.L.R.B. v. Dixisteel Buildings, Inc., 445 F.2d 1260, 1265 (8th Cir. 1971), Judge Bright spoke for this Court in upholding a bargaining order in these words: “In order to justify a bargaining order in the situation where the employer’s unfair practices have not been egregious, the record need show that the Union held a majority at one point, not that the Union held a majority according to signed cards up to the time of the election.” In our opinion, some of the actions of the Company in this case were erroneous and illegal as heretofore set forth, but they were not egregious to the extent" }, { "docid": "1517986", "title": "", "text": "Union in fact achieved majority status, we would force the employer to tread the fine line between § 8(a)(2) and § 8(a)(5). If at the time an initial demand is made, the union lacks majority status, the union must notify the employer when in fact it has obtained a card majority from the employees in order to effectuate a valid demand for recognition. Only after such a valid demand does the employer’s obligation to recognize the union arise. Here there admittedly was no valid demand made. We therefore, cannot sustain the Board’s finding of a § 8(a)(5) violation. THE REMEDY The Board, contrary to the A.L.J., ruled that a bargaining order was necessary because of the pervasive nature of the unfair labor practices. Our inquiry into the appropriateness of such a remedy must commence with a discussion of NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). In Gissel the Supreme Court formulated criteria for determining when a bargaining order is appropriate. The Court set forth three categories. The first is the “exceptional” case marked by “outrageous” and “pervasive” unfair labor practices. In such cases, despite the absence of majority status, the union would be entitled to a bargaining order where the coercive effects of the unfair labor practices could not be eliminated by traditional remedies. The second category is where the case is less extraordinary and “marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes.” 395 U.S. at 614, 89 S.Ct. at 1940. The Court continued: “. . The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of" }, { "docid": "1517987", "title": "", "text": "The first is the “exceptional” case marked by “outrageous” and “pervasive” unfair labor practices. In such cases, despite the absence of majority status, the union would be entitled to a bargaining order where the coercive effects of the unfair labor practices could not be eliminated by traditional remedies. The second category is where the case is less extraordinary and “marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes.” 395 U.S. at 614, 89 S.Ct. at 1940. The Court continued: “. . The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of easing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue . . . .” 395 U.S. at 614-615, 89 S.Ct. at 1940. The third and final category presents the case “of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order.” 395 U.S. at 615, 89 S.Ct. at 1940. General Counsel, respondent here, conceded before the A.L.J. that this was not a Gissel category 1 case, but urged the A.L.J. to find it a category 2 case. See, Appendix, 32a. The A.L.J., however, found: “. . . All of the conversations, whether they involved the minor supervisors or Griffiths" }, { "docid": "22719140", "title": "", "text": "traditional remedies, with the result that a fair and reliable election cannot be had.” NLRB v. Logan Packing Co., 386 F. 2d 562, 570 (C. A. 4th Cir. 1967); see also NLRB v. Heck’s, Inc., 398 F. 2d 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a§8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e. g., United Steelworkers of America v. NLRB, 126 U. S. App. D. C. 215, 376 F. 2d 770 (1967); J. C. Penney Co., Inc. v. NLRB, 384 F. 2d 479, 485-486 (C. A. 10th Cir. 1967). The only effect of our holding here is to approve the Board’s use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board’s authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue (see n. 32, supra). We emphasize that under the Board’s remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the" }, { "docid": "16391319", "title": "", "text": "that a bargaining order may appropriately be imposed in place of a new election not only in cases involving outrageous conduct, but also in other than extraordinary cases that are “marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes.” 395 U.S. at 614-15, 89 S.Ct. at 1940. The Board’s authority to issue a bargaining order on a lesser showing of employer misconduct is appropriate when there is also a showing that at one point the union had the support of a majority of employees. In such a case, a bargaining order serves both to effectuate ascertained employee free choice and to deter employer misconduct. Indeed, the Supreme Court emphasized in Gissel that once it has been shown that the union has achieved majority status, “effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.” 395 U.S. at 614-615, 89 S.Ct. at 1940. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensive ness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of easing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. Id Because Gissel expressly delimits the circumstances in which an order to bargain may be appropriately entered, this Court has required the Board to provide, “at the very least, a statement of the reasons leading the administrative agency to impose a bargaining order.” Kenworth Trucks of Philadelphia v. NLRB, 580 F.2d 55, 61 (3d Cir. 1978). The primary purpose of this requirement is to assist a reviewing court in determining whether the standards of Gissel have been satisfied. Since the propriety of a bargaining order depends upon the existence of certain" } ]

[ { "docid": "18968980", "title": "", "text": "“as the work is passed through such rolls with a continuous motion each point, as it comes between the rolls, is heated and the surfaces pressed together,” etc. By way of further description of one of the figures it is said that— “The electric current being now turned on as it passes from one roller to the other and across the point of pressure will heat the work to the welding temperature * * * after which the screw can be given a few more turns to effect a solid union. The work having been thus started, may now be mov ed along through or between the rolls so as to bring successive parts of the joint into position to be pressed and heated at the same time.” In 1893 Thomson obtained a patent (No. 496,019) relating particularly to soldering sheet metal pieces flatwise, either by the use of solder or (when applied to tin plates) by melting the tin sufficiently to establish union thereby. The electrodes, in the form of clamps or otherwise, served not only to supply the necessary heat, but to exert sufficient pressure upon the overlapped sheets to effect their union. A roller electrode is disclosed, performing the double function of heating and pressing, and having its periphery corrugated or grooved. As stated in the specification: “The rollers exert pressure while the current heats the thin metal pieces at successive points between the rollers.” This was, to say the least, electric resistance spot soldering. In 1897 Robinson received a patent (No. 574,942) on so-called projection welding, as specially applied to the welding óf a splice bar to the web of a railroad rail, the splice bar having upon its inner face a number of projections which by the application of the heating current are fused, and by pressure made to form welds between the projections on the bar and the fused opposing portions of the rail. Kfeinschmidt, in 1898, took out a patent (No. 616,436) for a similar process, and by methods not essentially unlike those of Robinson. Whether or not the Thomson so-called lap-welding invention" } ]

[ { "docid": "22250000", "title": "", "text": "on the bar and the fused opposing portions of the rail. Klein-schmidt, in 1898, took out a patent . . . for a similar process, and by methods not essentially unlike those of Robinson. “Whether or not the Thomson so-called lap-welding invention should be regarded as an absolute anticipation of the Harmatta patent, we think the state of the art to which we have. referred left no room for invention in Harmatta. . . . We see no distinction upon principle between plane-face welding and lap-welding; the former certainly embraces the latter. If Thomson’s roller electrode device was capable of welding a line or seam in a metal lap joint, it was readily adaptable to line-welding together coterminous plane-face plates. ... We think Thomson’s lap-welding invention was in essence a welding in points. In fact, his line seam was merely a succession of adjoining points. ... It satisfactorily appears that, although Thomson’s roller electrodes in the form shown in the patent were not practicably adapted to commercial spot-welding as disclosed by the Harmatta patent, they could readily be made to do such spot- welding by the use of suitable projections upon the face of the rolls (Thomson later did spot-soldering by the use of such projections); and assuming that pin electrodes were essential to successful commercial spot-welding, that form of electrodes was old, as illustrated by Thomson’s electric soldering patent. ... In our opinion the art of soldering is analogous to that of welding. ... By the use of enough more heat Thomson’s soldering device could readily have effected spot-welding. ... No essential difference in principle between heating at points and heating in spots is-apparent. Projection welding partakes, though not in so pronounced a sense, of the nature of spot-welding. ... We agree with Judge Dodge [227 Fed. 428] that Harmatta’s idea of ‘making his electric welds small in area rather than large in comparison with the areas of the opposed surface to be joined and isolating them, so as to leave each surrounded by a comparatively large area of unwelded surface,’ does not involve invention in view of the" }, { "docid": "18968978", "title": "", "text": "and of the Circuit Court of Appeals are reported in 227 Fed. 428 et seq., 142 C. C. A. 124. _ The art of electric resistance welding was old and far advanced in 1903, when the Harmatta patent was applied for. Prof. Elihu Thomson, the head of plaintiff company and of its predecessor, was a pioneer in that art. In 1886 he obtained process and apparatus patents respectively (Nos. 347, 140 and 347, 141) for so-called butt welding, which involved the uniting of the abutting ends of metal wires, bars, etc., by applying heat at the joint and the adjacent surfaces by means of electrodes, and pressing the two pieces together when heated to welding temperature. There was here true resistance welding, with pressure of the parts involved, although the electrode did .not exert the welding pressure. In 1889 Thomson obtained a patent (No. 396,015) for electric riveting, which involved the heating of the rivet when in place by means of a current passed through it by the use of electrodes, under pressure thereon, the effect being not only to swage the rivet and weld it to the adjoining metal, but apparently (when desired) to weld together, in part at least, the portions of the plates immediately adjoining the rivet. In 1891 Thomson obtained a patent (No. 444,928) for what is called lap-welding. While the specification states that the invention is specially adapted to the welding of the overlapped edges of plates, it is not so limited, but expressly includes “welding together strips, sheets, plates, or bars of metal where it is desirable to form a joint of considerable length.” According to the specification, “the surfaces to be welded are pressed together to form a union,” the work being fed in the longitudinal direction of the joint “through suitable pressure devices [preferably roller electrodes], the work being properly arranged, so that the pressure devices will press the surfaces to be welded together and simultaneously passing the electric current through the work at the point of pressure.” The electrodes were employed to exert the welding pressure. The specification further states that" }, { "docid": "10341658", "title": "", "text": "293, 311, 4 S. Ct. 455, 28 L. Ed. 433; Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 254, 48 S. Ct. 474, 72 L. Ed. 868. Entirely apart, therefore, from the question of whether plaintiff’s right to a product patent was exhausted or destroyed by the earlier issue of the method patent [Compare Saranac Automatic Machine Corp. v. Wirebounds Patents Co., 282 U. S. 704, 51 S. Ct. 232, 75 L. Ed. 634; Id. (C. C. A.) 37 F.(2d) 830, 836], the elaims of patent No. 1,198,744 here in issue are void for want of proper compliance with Rev. St. § 4888 (title 35, U. S. C. § 33 [35 USCA § 33]). The decree of the District Court is reversed as to patent 1,060,468, and the cause is remanded, with in fractions to enter a decree finding claims 5, 6, 8, 12, and 16 valid and infringed; and said decree of the District Court is affirmed as to claims 1 and 2 of patent 3,196,744. Neither party is awarded costs in this court. 8. The process of welding metal bodies that consists in simultaneously effecting an electrostatic discharge at the surfaces to he weldod and a percussive engagement of said surfaces. 16. The combination with a pair of clamping terminals for metal bodies to bo welded and means for insuring rapid movement of at least one of said terminals to effect percussive engagement of the surfaces to be welded, of means for effecting a discharge of electrical energy between the surfaces to be welded at tho instant percussive engagement thereof. 1. A structure comprising a plurality of metal bodies joined by an electro-percussively formed weld. 2. A structure comprising a plurality of metal bodies joined by an electro-percussively formed malleable weld. On Petition for Rehearing. 1. Patent to Thomson, No. 347,140, was fully considered by the court, but was regarded, as clearly disclosing only mechanism for practicing ihe resistance method of electric welding and as not anticipatory. 2. Wo think that no serious misunderstanding arose from whatever inaccuracy there may have been in statement of" }, { "docid": "10341648", "title": "", "text": "HICKENLOOPER, Circuit Judge. Appellant commenced this action in the District Court, complaining of the infringement by appellee of claims 5, 6, 8,12, and 16, of patent numbered 1,066,468, and claims 1 and 2 of patent numbered 1,196,744, the patents being dated, respectively, July 8, 1913, and August 29, 1916, and both having been issued upon applications by Lewis W. Chubb. Both patents relate to the art of electric welding. Both were held invalid in the District Court, or, if valid, not to have been infringed. Claims 8 and 16 of patent numbered 1,066,468, and claims 1 and 2 of patent numbered 1,196,744, are printed in the margin. Electric welding by the resistance method was very old. The surfaces to be welded were first brought into contact and an electric current was passed through one segment -to the other. The resistance caused by the nonunion of the contacting surfaces generated heat which eventually fused the metal at this location. Tho current was disconnected and pressure exerted, and the weld took place. See patent to Thomson, 347,140, Thomson Spot Welder Co. v. Ford Motor Co., 281 F. 680, 682 (C. C. A. 6); and patent to Perry, No. 670,808. By another method, also, the necessary heat to fuse the metals was supplied by a well-defined electric arc. Seo British patent to Coffin, No. 7185 of 1890. In both of these processes pressure was applied at the moment of the weld; and in both an electric current was employed to produce the heat necessary to fuse the surfaces to be joined. In these respects the prior art methods wore analogous to the method of the patent in suit. Difficulties, however, arose in the use of tho earlier methods to satisfactorily weld unlike metals having widely different melting points, the union tending to be purely a mechanical one in which the metal having* the higher melting point was held incased in a ball of the metal of lower melting point. It was also found that, in the case of metals which formed a very brittle alloy, such as copper and aluminum, the fusion of" }, { "docid": "22250001", "title": "", "text": "could readily be made to do such spot- welding by the use of suitable projections upon the face of the rolls (Thomson later did spot-soldering by the use of such projections); and assuming that pin electrodes were essential to successful commercial spot-welding, that form of electrodes was old, as illustrated by Thomson’s electric soldering patent. ... In our opinion the art of soldering is analogous to that of welding. ... By the use of enough more heat Thomson’s soldering device could readily have effected spot-welding. ... No essential difference in principle between heating at points and heating in spots is-apparent. Projection welding partakes, though not in so pronounced a sense, of the nature of spot-welding. ... We agree with Judge Dodge [227 Fed. 428] that Harmatta’s idea of ‘making his electric welds small in area rather than large in comparison with the areas of the opposed surface to be joined and isolating them, so as to leave each surrounded by a comparatively large area of unwelded surface,’ does not involve invention in view of the prior art. In other words, given the desire for a welding in spots, naturally enough suggested by the prior art and by its commercial development, we think Harmatta’s specific application of the principles of that prior art involved only the skill of the expert mechanic. Not only every principle, but every electric and mechanical process, involved in the Harmatta cláims, was well known in the prior or directly analogous arts, or in mechanical arts generally. We cannot think, in view of the prior art, that invention is to be found in the considerations, separately or collectively, that in Harmatta no bodily movement of the sheets is required, that the current is localized and pressure exerted solely by the electrodes, or by the difference in the form of the electrodes, or by the difference in amount of extruded metal, as compared with some of the earlier applications of resistance welding. Although invention is not necessarily negatived by the fact that each element of the combination is old, the question of fact whether the combination itself involves" }, { "docid": "22249997", "title": "", "text": "We take the following extracts from the well considered opinion of the Circuit Court of Appeals: “ The art of electric resistance welding was old and far advanced in 1903, when the Harmatta patent was applied for. Prof. Elihu Thomson . . . was a pioneer in that art. In 1886 he obtained process and apparatus patents ... for so-called butt welding, which involved the uniting of the abutting ends of metal wires, bars, etc., by applying heat at the joint and the adjacent surfaces by means of electrodes, and pressing the two pieces together when heated to welding temperature. There was here true resistance welding, with pressure of the parts involved, although the electrode did not exert the welding pressure. In 1889 Thomson obtained a patent ... for electric riveting, which involved the heating of the rivet when in place by means of a current passed through it by the use of electrodes, under pressure thereon, the effect being not only to swage the rivet and weld it to the adjoining metal, but apparently (when desired) to weld together, in part at least, the portions of the plates immediately adjoining the rivet. In 1891 Thomson obtained a patent . . . for what is called lap-welding. While'the specification states that the invention is specially adapted to the welding of the overlapped edges of plates, it . . . expressly includes 'welding together strips, sheets, plates, or bars of metal where it is desirable to form a joint of considerable length.’ According to the specification, ‘ the surfaces to be welded are pressed together to form a union,’ the work being fed in the longitudinal direction of the joint ‘ through suitable pressure devices (preferably roller electrodes), the work being properly arranged, so that the pressure devices will press the surfaces to be welded together and simultaneously passing the electric current through the work at the point of pressure.’ The electrodes were employed to exert the welding pressure. The specification further states that ‘ as the work is passed through such rolls with a continuous motion each point, as it" }, { "docid": "12270260", "title": "", "text": "SIMONS, Circuit Judge. The appellant sought remedies for alleged infringement of four patents and appeals from a decree denying it relief. The patents lie in the welding art, were all granted to Riemenschneider and assigned to the appellant. The first is No. 1,810,- 112 for a process'for welding metal tubing, granted June 16, 1931 upon an application filed August 6, 1930. This patent discloses the inventor’s basic concept, and the succeeding patents reveal improvements in the process and apparatus for carrying it out. They were granted on co-pending applications and are No. 1,948,801 granted February 27, 1934; No. 2,061,671 granted November 24, 1936, and No. 2,139,771 granted December 13, 1938. A number of the claims of each of the patents in suit are asserted to be infringed by the assembly and use of a certain welding machine installed by the appellee in 1941, for which the General Electric Company supplied the welding head. The branch of the art to which the inventor applied himself was that of welding tubing by arc welding without the use of welding rods. Concededly, he was not a pioneer in this branch of the art and his inventions concern themselves with improvements for increasing the speed of welding, producing better welds in the case of large diameter tubing, and eliminating much of the manual handling of material required by conventional processes. The steps of his method as first described in his 112 patent, include passing the strip stock through forming dies or rolls by which it is formed into a tubing of desired cross-section, with the edges of the strip brought close together defining an open longitudinal seam. The tube then passes under a plurality of electric arcs arranged for progressive heating. During the passage of the tube past the electrodes the inner surfaces are supported by a welding shoe, and the metal along the seam is melted to a liquid state so that it forms a molten stream or narrow pool confined along the sides by the strip and beneath by the shoe. While the metal is in this molten state the edges of" }, { "docid": "18968991", "title": "", "text": "herein described method of uniting two pieces of metal, consisting in pressing them together while passing a heating electric current from one to the other and localizing the flow of current and the heating throughout the operation in a spot or spots, of circumscribed or limited area as compared with the area of the immediately opposed surfaces so as to limit the union of the pieces to a spot or spots.” “8. The method of electrically welding two plates or sheets of metal together face to face between electrodes, consisting in restricting the area of contact of an electrode with said plates to a spot, passing a heating electric current from said electrode to the co-operating electrode through said spot to heat the work to welding temperature and applying pressure to the work in line with said spot to effect a welding of one plate to the other.” “12. The method of electrically welding two pieces of sheet metal to one another, consisting in pressing the sheets,, together by pressure applied and localized in a distinct well-defined point or spot on the rear surface of a sheet while passing an electric current through them in the line of the pressure, thereby localizing the path of the heating current from one to the other of the meeting surfaces of the sheets to cause the said sheets to be heated to welding temperature by the electric resistance of the work at said spot, and applying pressure localized over said spot whereby the pieces are welded together at a distinct well-defined spot in their meeting surfaces answering the purpose of a rivet.” “17. Metal plates fastened together by a number of distinct or isolated welds on their meeting surfaces and in spots comprising meeting portions of the metal plates, the backs of said plates being practically unaltered in their metallic condition and the spots on the meeting surfaces being separated from one another by distinct unwelded areas.” All italics in this opinion are ours." }, { "docid": "18968976", "title": "", "text": "KNAPPEN, Circuit Judge. Suit for infringement of United States patent No. 1,046,066, December 3, 1912, to Tohann Harmatta, assignor to Thomson Electric Welding Company, which is the predecessor of plaintiff company. The invention relates to that branch of electric resistance welding known as spot welding, by which two sheets of metal are welded together in spots, as a substitute for riveting. Generally speaking, the welding is accomplished by the application of pressure and heating current, localized in spots on the opposite plane facts of the two metal sheets. Specifically, two pointed electrodes are applied to the opposite faces of the sheets, the electrode which feeds the electricity into the work and heats the metal to the welding point being caused to exert the pressure required to accomplish the weld. The specification states that— “The necessary pressure may be exerted at the place of welding by the aid of any of those technical means which are suitable for producing or transmitting pressure—e. g., with a press either direct or by means of indirect transmission by levers; or it may be by means of simple hand levers, that is to say, by means of direct or indirect manual power, or by other means.” The 21 claims of the patent relate some to the process, the others to the product. Plaintiff relies on claims 3, 8, 12, and 17 as typical. They are printed in the margin. The prominent defenses are antici pation, lack of invention, prior public use, and estoppel. The District Court found each of these defenses established and dismissed the bill. 268 Fed. 836. Noninfringement is pleaded but not urged. The patent has been adjudicated in but one other suit, viz., Thomson Electric Welding Co. (plaintiff’s predecessor) v. Barney & Berry, in the First Circuit, decided in 1915. In that case Circuit Judge Dodge, who presided in the District Court, held the patent void for lack of invention. The Circuit Court of Appeals’ held that the patent was not anticipated and that it involved invention, and reversed the judgment of the District Court. The opinions of both the District Court" }, { "docid": "10341650", "title": "", "text": "both metals by the old processes produced points of weakness on each side of the joint where the welded structure was liable to break. The patentee Chubb conceived the idea that, if the heat-produeing electric energy could be applied between tho surfaces to be welded in comparatively enormous volume and for an almost infinitesimal period of time, and these surfaces could simultaneously be brought into percussive contact, both difficulties could be avoided. Both such surfaces would fuse, even though the metals had widely different melting points; but this fusion would be so shallow, and tho film of brittle alloy would be so thin, that a true weld of flexible character would be produced. This is the inventive concept underlying patent No. 1,066,468. By clamping the ends of the wires to be welded in chucks forming tho terminals of his electric circuit, one of which was movable toward the other to effect percussive engagement of the surfaces of the wires, and by the use of a condenser or other reservoir for the storage of electric energy, Chubb obtained an explosive discharge at the very moment of! the percussive contact by which the thus softened or fused surfaces of the wires were forged together. The entire discharge is completed in .00035 of a second. In this time the voltage drops from 207 volts to zero. The power expended rises , from zero to 23,000 watts in .0001 of a second and almost as suddenly decreases, crossing the zero lino with the voltage. This conception seems to us to possess the attribute of distinct novelty, and not to be a mere carrying forward of the old idea, a variation of degree, or improved craftsmanship. The nature of tho wold produced and the speed with which tho operation could be completed marked an advance in the art which was immediately recognized. In addition to the prior art already cited, evidence was also introduced of the use, by plaintiff, for a period of more than two years prior to the application for the patent in suit, of a machine purchased from the Cooper-Hewitt Electric Company" }, { "docid": "19120611", "title": "", "text": "excess of the welding composition which remains unfused and covers the fused composition and metal. Either alternating or direct current, or direct current superimposed on alternating current may be used, but alternating current is preferred. The application states that the process here employed does not depend on the formation of an arc of the usual type: “* * * If, while a weld is being made, the circuit is opened externally of the weld and then closed again while the resistive composition is still molten, the current will immediately resume its flow without any necessity for moving the electrode into contact with the seam as it would be necessary to do to reestablish an arc of the usual .type. The heat for melting the electrode is evidently developed in the conhuctice melt itself. “The conductive welding composition used in our process doubtless performs the protective functions of a flux, but it is much more than a flux, and many compositions which are satisfactory fluxes for arc welding are unsuitable for our purpose. * * *” The District Court said, and we think rightly, that Jones, Kennedy and Rotermund invented something patentable over the prior art of electric welding. He thought their method of welding differed vastly from electric-arc hand welding, either of the bare, or coated rod variety, and that there was “an inventive level-difference” between their method and Robinoff’s automatic welding method. He calls attention to the differences in the physical appearances in the welding zones of the patent, and those of any of the prior art during their operations. “In bare rod and coated rod hand welding, the electric arc creates a blinding glare and there is a great amount of smoke and splatter. In the Robinoff clay flux method constant flashings occur, and the arc is always at least partially visible.” In those of the patent “there is no glare, no open arc, no splatter, and very little, if any smoke, * * *. The truly remarkable difference, however, between what Jones, Kennedy and Rotermund invented and what had gone before is perhaps best manifested by the" }, { "docid": "18968977", "title": "", "text": "or it may be by means of simple hand levers, that is to say, by means of direct or indirect manual power, or by other means.” The 21 claims of the patent relate some to the process, the others to the product. Plaintiff relies on claims 3, 8, 12, and 17 as typical. They are printed in the margin. The prominent defenses are antici pation, lack of invention, prior public use, and estoppel. The District Court found each of these defenses established and dismissed the bill. 268 Fed. 836. Noninfringement is pleaded but not urged. The patent has been adjudicated in but one other suit, viz., Thomson Electric Welding Co. (plaintiff’s predecessor) v. Barney & Berry, in the First Circuit, decided in 1915. In that case Circuit Judge Dodge, who presided in the District Court, held the patent void for lack of invention. The Circuit Court of Appeals’ held that the patent was not anticipated and that it involved invention, and reversed the judgment of the District Court. The opinions of both the District Court and of the Circuit Court of Appeals are reported in 227 Fed. 428 et seq., 142 C. C. A. 124. _ The art of electric resistance welding was old and far advanced in 1903, when the Harmatta patent was applied for. Prof. Elihu Thomson, the head of plaintiff company and of its predecessor, was a pioneer in that art. In 1886 he obtained process and apparatus patents respectively (Nos. 347, 140 and 347, 141) for so-called butt welding, which involved the uniting of the abutting ends of metal wires, bars, etc., by applying heat at the joint and the adjacent surfaces by means of electrodes, and pressing the two pieces together when heated to welding temperature. There was here true resistance welding, with pressure of the parts involved, although the electrode did .not exert the welding pressure. In 1889 Thomson obtained a patent (No. 396,015) for electric riveting, which involved the heating of the rivet when in place by means of a current passed through it by the use of electrodes, under pressure thereon, the" }, { "docid": "19120597", "title": "", "text": "SPARKS, Circuit Judge. Plaintiff charged defendants with infringement of United States Patent No. 2,043,960 issued June 9, 1936, to Union Carbide and Carbon Corporation of New York, assignee of the inventors Lloyd Theodore Jones, Harry Edward Kennedy and Maynard Arthur Rotermund of California, who filed the patent application on October 9, 1935. The patent relates both to a process or method of electric welding, and to compositions for use therein. Of the process or' method claims, numbered 1 to 17 inclusive, all were in issue except claim No. 10. Of the composition claims, those numbered 18, 20, 22, 23, 24, 26 and 27 were in issue. ■The defenses were invalidity and non-infringement. The court held valid and infringed composition claims 18, 20, 22 and 23. and invalid, composition claims number ed 24, 26 and 27. It also held all of the process or method claims in issue invalid. From the decree plaintiff, in cause No.9481, has appealed from the rulings adverse to it, and the defendants, in cause No.9482, have appealed from the rulings adverse to them. The specification states with considerable particularity the disclosures of the art at that time, as patentees then understood them. We refer in substance to the specification in order to get a fair disclosure of the problems which then confronted the applicants, and which they sought to solve. The fact that the patent was issued clothes plaintiff with the presumption of its validity. Among the various ways in which electrical energy had been converted into heat for welding metals, the arc process was the one most generally practiced, a typical example of which is its use to join the abutting edges of steel plates. In the metal-arc variation of the arc process, molten metal, provided by the melting of a metal wire or rod of suitable composition, was introduced between the abutting edges of the plates, and the latter were fused sufficiently to permit the added metal to coalesce with the metal of the plates so that, on cooling, a structurally strong bond resulted. The requisite heat was developed by maintaining either a direct" }, { "docid": "10341659", "title": "", "text": "in this court. 8. The process of welding metal bodies that consists in simultaneously effecting an electrostatic discharge at the surfaces to he weldod and a percussive engagement of said surfaces. 16. The combination with a pair of clamping terminals for metal bodies to bo welded and means for insuring rapid movement of at least one of said terminals to effect percussive engagement of the surfaces to be welded, of means for effecting a discharge of electrical energy between the surfaces to be welded at tho instant percussive engagement thereof. 1. A structure comprising a plurality of metal bodies joined by an electro-percussively formed weld. 2. A structure comprising a plurality of metal bodies joined by an electro-percussively formed malleable weld. On Petition for Rehearing. 1. Patent to Thomson, No. 347,140, was fully considered by the court, but was regarded, as clearly disclosing only mechanism for practicing ihe resistance method of electric welding and as not anticipatory. 2. Wo think that no serious misunderstanding arose from whatever inaccuracy there may have been in statement of the difference of arrangement, in the circuit, of the induction coil of the Coopor-Hewitt machine and the condenser of the patent in suit, which statement was based in kng'e part upon the brief of the appellee who now asks a rehearing. We adhere to the opinion that tho two devices operate upon different principles. The petition for rehearing is denied." }, { "docid": "18968990", "title": "", "text": "later, including his disclosure. of the use of pin-electrodes. The fact also appears in this record that at various times, ranging from two years to five or six years, before the issue of the Harmatta patent, and apparently in ignorance of his asserted invention, various manufacturers put out or used spot-welding machines with commercial success. Some of these uses antedated the issue of the Rietzel patent. These experiences also tend to discredit invention in Harmatta. It follows, in our opinion, from what has been said, that the effect of the great commercial success of the Harmatta invention, in the hands of plaintiff is entitled to little weight upon the question of invention, even were that question otherwise in doubt, which we think it is not. Our conclusion of noninvention makes it unnecessary to consider the alleged McBerty prior use, the defense of equitable estoppel asserted against plaintiff, the standing of the De Eerranti patent, or any of the other defenses presented. The decree of the District Court is affirmed, DENISON, Circuit Judge, dissents. “3. The herein described method of uniting two pieces of metal, consisting in pressing them together while passing a heating electric current from one to the other and localizing the flow of current and the heating throughout the operation in a spot or spots, of circumscribed or limited area as compared with the area of the immediately opposed surfaces so as to limit the union of the pieces to a spot or spots.” “8. The method of electrically welding two plates or sheets of metal together face to face between electrodes, consisting in restricting the area of contact of an electrode with said plates to a spot, passing a heating electric current from said electrode to the co-operating electrode through said spot to heat the work to welding temperature and applying pressure to the work in line with said spot to effect a welding of one plate to the other.” “12. The method of electrically welding two pieces of sheet metal to one another, consisting in pressing the sheets,, together by pressure applied and localized in a" }, { "docid": "22249998", "title": "", "text": "(when desired) to weld together, in part at least, the portions of the plates immediately adjoining the rivet. In 1891 Thomson obtained a patent . . . for what is called lap-welding. While'the specification states that the invention is specially adapted to the welding of the overlapped edges of plates, it . . . expressly includes 'welding together strips, sheets, plates, or bars of metal where it is desirable to form a joint of considerable length.’ According to the specification, ‘ the surfaces to be welded are pressed together to form a union,’ the work being fed in the longitudinal direction of the joint ‘ through suitable pressure devices (preferably roller electrodes), the work being properly arranged, so that the pressure devices will press the surfaces to be welded together and simultaneously passing the electric current through the work at the point of pressure.’ The electrodes were employed to exert the welding pressure. The specification further states that ‘ as the work is passed through such rolls with a continuous motion each point, as it comes between the rolls, is heated and the surfaces pressed together.’ . . . In 1893 Thomson obtained a patent . . . relating particularly to soldering sheet metal pieces flatwise, either by the use of solder or (when applied to tin plates) by melting the tin sufficiently to establish union thereby. The electrodes, in the form of clamps or otherwise, served not only to supply the necessary heat, but to exert sufficient pressure upon the overlapped sheets to effect their union. A roller electrode is disclosed, performing the double function of heating and pressing, and having its periphery corrugated or grooved . . . This was, to say the least, electric resistance spot soldering. In 1897 Robinson received a patent ... on so-called projection welding, as specially applied to the welding of a splice bar to the web of a railroad rail, the splice bar having upon its inner face a number of projections which by the application of the heating current are fused, and by pressure made to form welds between the projections" }, { "docid": "10341649", "title": "", "text": "Thomson Spot Welder Co. v. Ford Motor Co., 281 F. 680, 682 (C. C. A. 6); and patent to Perry, No. 670,808. By another method, also, the necessary heat to fuse the metals was supplied by a well-defined electric arc. Seo British patent to Coffin, No. 7185 of 1890. In both of these processes pressure was applied at the moment of the weld; and in both an electric current was employed to produce the heat necessary to fuse the surfaces to be joined. In these respects the prior art methods wore analogous to the method of the patent in suit. Difficulties, however, arose in the use of tho earlier methods to satisfactorily weld unlike metals having widely different melting points, the union tending to be purely a mechanical one in which the metal having* the higher melting point was held incased in a ball of the metal of lower melting point. It was also found that, in the case of metals which formed a very brittle alloy, such as copper and aluminum, the fusion of both metals by the old processes produced points of weakness on each side of the joint where the welded structure was liable to break. The patentee Chubb conceived the idea that, if the heat-produeing electric energy could be applied between tho surfaces to be welded in comparatively enormous volume and for an almost infinitesimal period of time, and these surfaces could simultaneously be brought into percussive contact, both difficulties could be avoided. Both such surfaces would fuse, even though the metals had widely different melting points; but this fusion would be so shallow, and tho film of brittle alloy would be so thin, that a true weld of flexible character would be produced. This is the inventive concept underlying patent No. 1,066,468. By clamping the ends of the wires to be welded in chucks forming tho terminals of his electric circuit, one of which was movable toward the other to effect percussive engagement of the surfaces of the wires, and by the use of a condenser or other reservoir for the storage of electric energy," }, { "docid": "10341654", "title": "", "text": "U. S. 428, 434, 435, 31 S. Ct. 444, 55 L. Ed. 527. Defendant also contends that percussive engagement of surfaces to be welded is disclosed by patent to Farrensteiner, No. 540, 711, and by the Cooper-Hewitt machine, possibly by the British patent to Coffin No. 7185 of 1890, and that some of the claims in suit (e. g., claims 5, 6,12, and 16) call simply for “an electrical discharge at the surfaces to be welded” preceding, or simultaneous with, the percussive engagement. It is thus urged that these claims read upon and are anticipated by the prior art even though the resistance or electric are methods were there used. The claims must bo- read and construed in the light of the specification, and so liberally interpreted as to uphold and not destroy the right of the inventor in the substance of his invention. See Southern Textile Machinery Co. v. United Hosiery Mills Corp., 33 F.(2d) 862 (C. C.( A. 6); Sun Ray Gas Corp. v. Bellows-Claude-Neon Co., 49 F.(2d) 886 (C. C. A. 6), and eases there cited. So construed and interpreted, the “electrical discharge” called for in the claims must be regarded as the sudden or explosive discharge disclosed by the specification. It is the discharge resulting from the use of a condenser arranged in parallel with the source of energy. It is a discharge radically different, in its effect upon the metal's to be welded, from that used in the resistance and electric arc methods. Chubb was the first to conceive the advantages of this use for the condenser, and in this he should be protected. Under these circumstances we are of the opinion that the earlier methods may not be considered as anticipations, even though in some of them percussive engagement was employed. Compare Gordon Form Lathe Co. v. Walcott Machine Co., 32 F.(2d) 55, 58 (C. C. A. 6). Lastly, it is claimed that the defendant does not infringe because the engagement of the two wires in defendant’s machine is produced by the movement of one of them for a distance of but .006 of" }, { "docid": "22249999", "title": "", "text": "comes between the rolls, is heated and the surfaces pressed together.’ . . . In 1893 Thomson obtained a patent . . . relating particularly to soldering sheet metal pieces flatwise, either by the use of solder or (when applied to tin plates) by melting the tin sufficiently to establish union thereby. The electrodes, in the form of clamps or otherwise, served not only to supply the necessary heat, but to exert sufficient pressure upon the overlapped sheets to effect their union. A roller electrode is disclosed, performing the double function of heating and pressing, and having its periphery corrugated or grooved . . . This was, to say the least, electric resistance spot soldering. In 1897 Robinson received a patent ... on so-called projection welding, as specially applied to the welding of a splice bar to the web of a railroad rail, the splice bar having upon its inner face a number of projections which by the application of the heating current are fused, and by pressure made to form welds between the projections on the bar and the fused opposing portions of the rail. Klein-schmidt, in 1898, took out a patent . . . for a similar process, and by methods not essentially unlike those of Robinson. “Whether or not the Thomson so-called lap-welding invention should be regarded as an absolute anticipation of the Harmatta patent, we think the state of the art to which we have. referred left no room for invention in Harmatta. . . . We see no distinction upon principle between plane-face welding and lap-welding; the former certainly embraces the latter. If Thomson’s roller electrode device was capable of welding a line or seam in a metal lap joint, it was readily adaptable to line-welding together coterminous plane-face plates. ... We think Thomson’s lap-welding invention was in essence a welding in points. In fact, his line seam was merely a succession of adjoining points. ... It satisfactorily appears that, although Thomson’s roller electrodes in the form shown in the patent were not practicably adapted to commercial spot-welding as disclosed by the Harmatta patent, they" }, { "docid": "22249996", "title": "", "text": "thus summarized in its brief: “ Harmatta produced a new result, namely a small round weld (a spot weld) uniting two plane sheets of metal at any place in their meeting faces. This was radically new ... 2. To make this spot weld Harmatta manipulated the articles with which he dealt, namely the sheets, in a new way by indiscriminately superimposing one upon the other and he made his electrodes perform a function, which no electrodes, used in electric welding, had ever before performed. 3. In so doing he carried out a new technical process, that is, the electric current, which generates the welding heat, behaved and operated in an entirely new way, . . . and he applied the welding pressure to a condition, which seemed to make such application impossible.” The opinions of the two District Courts and of the Circuit Court of Appeals for the Sixth Circuit holding that the patent in suit was lacking in invention, are based, in each instance, on a detailed and analytical consideration of the prior art. We take the following extracts from the well considered opinion of the Circuit Court of Appeals: “ The art of electric resistance welding was old and far advanced in 1903, when the Harmatta patent was applied for. Prof. Elihu Thomson . . . was a pioneer in that art. In 1886 he obtained process and apparatus patents ... for so-called butt welding, which involved the uniting of the abutting ends of metal wires, bars, etc., by applying heat at the joint and the adjacent surfaces by means of electrodes, and pressing the two pieces together when heated to welding temperature. There was here true resistance welding, with pressure of the parts involved, although the electrode did not exert the welding pressure. In 1889 Thomson obtained a patent ... for electric riveting, which involved the heating of the rivet when in place by means of a current passed through it by the use of electrodes, under pressure thereon, the effect being not only to swage the rivet and weld it to the adjoining metal, but apparently" } ]

[ { "docid": "4638600", "title": "", "text": "(1) Does the automatic stay apply to defendant’s counterclaim for either: (a) interpleader relief; or (b) declaratory relief? (2) Does the automatic stay apply to actions initiated by the debtor? Before reaching these two disputed issues, it is appropriate to comment generally about the purpose of the automatic stay provisions. The primary purpose of an automatic stay subsequent to the filing of a bankruptcy petition is: to preserve what remains of the debtor’s insolvent estate and to provide a system-matic equitable liquidation procedure for all creditors secured and unsecured ... thereby preventing a chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts. Price & Pierce International, Inc. v. Spicers International Paper Sales, Inc., 50 B.R. 25 (S.D.N.Y.1985) citing In Re Holtkamp, 669 F.2d 505, 508 (7th Cir.1982). Although the scope of the automatic stay is undeniably broad, it does not serve to stay all actions involving the bankrupt party. Rather, the reach of the automatic stay is limited by its purposes. Price & Pierce, 50 B.R. at 26. With these general principles in mind, what follows is a discussion of the two issues as framed by the parties in this action. 1. Defendant’s Counterclaim a. Interpleader Relief There are two subsections of the automatic stay provision which might conceivably apply to defendant’s interpleader claim, 11 U.S.C. § 362(a)(1) and (a)(3). Section 362(a)(1) operates as a stay of: the commencement or continuation ... of a judicial administrative or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this Title or to recover a claim against the debtor that arose before the commencement of this case under this title, (emphasis added) Defendant’s interpleader action is not an action against the debtor. Wells Fargo is not suing the bankrupt plaintiff for damages or seeking a claim to the funds. Rather, the bankrupt party is one of the claimants to the res. Section 362(a)(1) clearly does not act as a bar to the continuation of defendant’s interpleader claim. Section 362(a)(3) operates as a stay" } ]

[ { "docid": "18887829", "title": "", "text": "referral, Honeywell filed a complaint seeking a declaratory order establishing that collection of the alleged undercharges constituted an unreasonable practice. In its complaint, Honeywell did not seek any property of the estate or the debtor. Although TSI is nominally a defendant, the action is in fact an effort by Honeywell to defend itself from claims asserted by TSI. It is within neither the letter nor the spirit of the statute to regard the automatic stay as applying to such an action. The purpose of the stay is “to preserve what remains of the debtor’s insolvent estate and to provide a systematic equitable liquidation procedure for all creditors ... thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ ” In re Holtkamp, 669 F.2d 505, 508 (7th Cir.1982) (citation omitted), quoting In re Frigitemp Corp., 8 B.R. 284, 289 (S.D.N.Y.1981). Honeywell’s action did not assert a claim against the estate or threaten to disrupt the liquidation procedure established by the Code. Accordingly, Honeywell’s action should not be stayed as an action “against the debtor.” 2. Whether Honeywell’s Action is a Pre-Petition Claim Subject to the Stay The stay provided by section 362(a)(1) applies only to pre-petition claims, that is, claims which were or could have been commenced before the bankruptcy petition was filed or claims that arose prior to the filing of the petition. As an alternative argument, Honeywell argues that although the undercharges stem from transactions which took place before the bankruptcy petition, the relationship between the parties was in repose until the audit of TSI. Because the audit was done after TSI’s bankruptcy petition was filed, the undercharge dispute must be treated as a post-petition claim. Honeywell’s position is not supported by the law. Except in the Third Circuit, a claim is considered to arise, for bankruptcy purposes, at “the time when acts giving rise to the alleged liability were performed.” In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986). This is true even though at the time the acts giving rise to liability were performed the claimant" }, { "docid": "10216075", "title": "", "text": "MEMORANDUM OPINION KEENAN, District Judge: This interpleader action was commenced by Price & Pierce International, Inc. (“Price & Pierce”) against Spicers International Paper Sales, Inc. (“SIPSI”) and Pape-teries De Belgique (“Papeteries”), pursuant to 28 U.S.C. §§ 1332 and 1335 and Rule 22 of the Federal Rules of Civil Procedure. On June 6, 1984, this Court issued an Ex Parte Order granting plaintiff-Price & Pierce’s application to deposit the Inter-pleader Fund of $884,047.49 (“Fund”) with the Clerk of the Court. Both SIPSI and Papeteries claim entitlement to the Fund. Price & Pierce has moved for an order of discharge and Papeteries has moved for summary judgment; submission of those motions was completed on March 15, 1985. One week later, on March 22, SIPSI filed a petition in bankruptcy. SIPSI maintains that the instant action is subject to the automatic stay provision of 11 U.S.C. § 362. Price & Pierce and Papeteries disagree. Section 362 of the Bankruptcy Code is designed “to preserve what remains of the debtor’s insolvent estate and to provide a systematic equitable liquidation procedure for all creditors, secured and unsecured ... thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.” In re Holtkamp, 669 F.2d 505, 508 (7th Cir.1982) (citation omitted) (quoting In re Frigitemp Corp., 8 B.R. 284, 289 (S.D.N.Y.1981)). Although the scope of the automatic stay “is undeniably broad,” In re Bialac, 712 F.2d 426, 431 (9th Cir.1983), it does not operate to stay all actions involving the bankrupt. The reach of the automatic stay is limited by its purposes. The automatic stay provision normally applies to actions in which the bankrupt is a defendant. Although SIPSI is a named defendant, its status in that regard is nominal. In making claim to the Fund, SIPSI takes the role of plaintiff in this action. Thus, this is not an action to obtain possession of property held by SIPSI, as required for the invocation of § 362; rather, it is an action to determine whether the Fund, or some part thereof, rightfully belongs to Papeteries or SIPSI." }, { "docid": "16389901", "title": "", "text": "case whether to lift the automatic stay to permit Illinois Central to proceed with its state court third-party complaint against the debtor. Title 11 U.S.C. § 362(a) states in relevant part: (a) Except as provided in subsection (b) of this section, a petition ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; * * * * * * (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;.... 11 U.S.C. § 362(a)(1) and (3) (Callaghan 1988). Section 362(d)(1) further provides: (d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (1) of this section, such as by terminating, annulling, modifying, or conditioning stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; ... 11 U.S.C. § 362(d)(1) (Callaghan 1988). The purpose of the automatic stay is to preserve the debtor’s estate and provide for the orderly distribution of the debtor’s assets “thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ ” Holtkamp v. Littlefield (In re Holtkamp), 669 F.2d 505, 508 (7th Cir.1982) (citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), reprinted in [1978] U.S.Code Cong. & Ad.News 5787, 6296-97 and quoting Litton Systems, Inc. v. Frigitemp Corp. (In re Frigitemp Corp.), 8 B.R. 284, 289 (D.C.S.D.N.Y.1981), citing Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47, 55 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977)). Importantly § 362(d)(1) does not purport to list the exclusive “causes” which merit" }, { "docid": "22906176", "title": "", "text": "to § 105(a) of the Code. For the reasons which follow, this court finds that the automatic stay applies and should not be modified. The motions made by Carpenter and Kowalski are therefore denied. DISCUSSION OF LAW A. The Automatic Stay of § 362 Prohibits Both Carpenter and Kowalski from Proceeding Against J-M Sales in Other Courts Without First Obtaining This Court’s Permission. The filing of a petition under Chapter 11 of the Code operates pursuant to § 362(a) as an automatic stay of: (1)the commencement or continuation including the issuance or employment of process, of a judicial, administrative or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; [and] ... (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title. This section is deemed “one of the fundamental debtor protections provided by the bankruptcy laws.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), reprinted in U.S.Code Cong. & Ad.News 5963, 6296; S.Rep. No. 989, 95th Cong., 2d Sess. 54, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 5840. In Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540, reh’g denied, 430 U.S. 976, 97 S.Ct. 1670, 52 L.Ed.2d 372 (1977), the Second Circuit stated that the stay is designed to prevent a chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts. The stay insures that the debtor’s affairs will be centralized, initially in a single forum in order to prevent conflicting judgments from different courts and in order to harmonize all of the creditors’ interests with one another. Id. at 55. The federal policy underlying the stay is the protection of the debtor’s estate from the “chaos and the wasteful depletion resulting from multifold, uncoordinated and possibly conflicting" }, { "docid": "5127077", "title": "", "text": "vehicle on February 3, 1989. CONCLUSIONS OF LAW [1] The issue before the court is simply whether § 362 of the Bankruptcy Code prevents the movant from proceeding in state court with respect to events occurring after debtor Sherry L. Shuman filed her bankruptcy petition. The language of the statute and the relevant case law makes clear that the automatic stay is inapplicable in the present case. Section 362(a)(1) provides that the filing of a bankruptcy petition operates as a stay, applicable to all entities, of— 1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. (Emphasis Supplied) From the plain language of § 362(a)(1) it is clear that, with respect to judicial actions and proceedings, the statute only stays those proceedings and actions which were instituted or could have been instituted pri- or to the filing of a debtor’s bankruptcy petition. Turner Broadcasting System, Inc. v. Sanyo Electric, Inc., 33 B.R. 996, 999 (D.N.D.Ga.1983). Further, the court finds nothing in the legislative history of § 362(a)(1) to suggest that Congress intended a different result: Section 362(a)(1) of the House amendment adopts the provision contained in the Senate amendment enjoining the commencement or continuation of a judicial, administrative, or other proceeding to recover a claim against the debtor that arose before the commencement of the case. The provision is beneficial and interacts with section 362(a)(6), which also covers assessment, to prevent harassment of the debtor with respect to pre-petition claims. 124 Cong.Rec. Hll,092 (daily ed. Sept. 28, 1978); 124 Cong.Rec. S17,409 (daily ed. Oct. 6, 1978). While the automatic stay of § 362 is a fundamental protection provided to a debtor in bankruptcy, and its scope is undeniably broad, it does not serve to stay all actions ‘involving a bankrupt party. Rett White Motor Sales Co. v. Wells Fargo Bank, 99" }, { "docid": "8622300", "title": "", "text": "by preventing particular creditors from acting unilaterally in self-interest .,. to the detriment of other creditors.” Mar. Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir.1991); see also Chao v. Hosp. Staffing Servs., Inc., 270 F.3d 374, 382-83 (6th Cir.2001) (“The stay helps ‘... prevent[ ] a chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ ” (quoting Holtkamp v. Littlefield (In re Holtkamp), 669 F.2d 505, 508 (7th Cir.1982))) (internal quotation marks omitted). “The purpose of the automatic stay is not to ... ultimately prevent the exercise of the available rights of any party ... [but instead is] to prevent any creditor from becoming a self-determined arbiter of what constitutes property of the estate and what actions are permitted or prohibited by the stay.” Clark v. United States (In re Clark), 207 B.R. 559, 565-66 (Bankr.S.D.Ohio 1997). A. Section 362(a)(1) By its terms, § 362(a)(1) prohibits the commencement or continuation of a proceeding only if it is a proceeding “against the debtor.” 11 U.S.C. § 362(a)(1). As noted above, after the Petition Date, RFF continued the Arbitration Action—and commenced the State Court Action—only against TJI and the Johnsons, not against the Debtor. Despite this, the Debtor argues that RFF’s conduct in prosecuting the Arbitration Action and the State Court Action against TJI and the Johnsons “plainly violate[d]” § 362(a)(1). Enft Mot. at 7. The Debtor claims this conduct is a plain violation of the stay “under prevailing Sixth Circuit law,” Reply at 2, but he errs in two ways. First, the only Sixth Circuit case law the Debtor cites is Amedisys, 423 F.3d 567, which addresses a violation of § 362(a)(3), rather than (a)(1). Second, as explained below, the Debtor’s argument is contrary to prevailing Sixth Circuit case law addressing § 362(a)(1), including Patton, 8 F.3d 343. “The Sixth Circuit has made it abundantly clear that the § 362(a)(1) stay of acts ‘against the debtor’ is to be strictly construed.” In re Cincom iOutsource, Inc., 398 B.R. 223, 226 (Bankr.S.D.Ohio 2008) (citing Patton, 8 F.3d 343). It is" }, { "docid": "8622299", "title": "", "text": "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. 11 U.S.C. § 362(a)(1), (3). The automatic stay applies to arbitration proceedings. See ACandS, Inc. v. Travelers Cas. & Sur. Co., 435 F.3d 252, 259 (3d Cir.2006); see also In re Bunting Bearings, 302 B.R. 210, 213 (Bankr.N.D.Ohio 2003) (“[T]he scope of the automatic stay has been held to encompass postpetition proceedings conducted pursuant to an arbitration clause.”). And because the stay is automatic, “the debtor does not have to make any formal request that it be issued or that it apply to a particular proceeding.” ACandS, 435 F.3d at 259. “Although [non-bankruptcy] court judges generally refrain from proceeding once they are made aware of a bankruptcy filing, the burden is on the creditor not to seek relief ... in violation of the stay.” In re Sutton, 250 B.R. 771, 774 (Bankr.S.D.Fla.2000). The automatic stay not only serves to give the debtor a breathing spell, but it also “protects creditors by preventing particular creditors from acting unilaterally in self-interest .,. to the detriment of other creditors.” Mar. Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir.1991); see also Chao v. Hosp. Staffing Servs., Inc., 270 F.3d 374, 382-83 (6th Cir.2001) (“The stay helps ‘... prevent[ ] a chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ ” (quoting Holtkamp v. Littlefield (In re Holtkamp), 669 F.2d 505, 508 (7th Cir.1982))) (internal quotation marks omitted). “The purpose of the automatic stay is not to ... ultimately prevent the exercise of the available rights of any party ... [but instead is] to prevent any creditor from becoming a self-determined arbiter of what constitutes property of the estate and what actions are permitted or prohibited by the stay.” Clark v. United States (In re Clark), 207 B.R. 559, 565-66 (Bankr.S.D.Ohio 1997). A. Section 362(a)(1) By its terms, § 362(a)(1) prohibits the commencement or continuation of a proceeding only if it is a proceeding “against the debtor.” 11" }, { "docid": "1281527", "title": "", "text": "sale as required by Indiana statute, ordered a private sale without explanation, and no authority has been argued for the proposition that the debtor’s assignment of equity to the Bank as security somehow excused the obligation to follow Indiana foreclosure law. To the contrary, the law is that an assignment of rights in a land contract “amount[s] to nothing more than a mortgage, and it can be enforced only through foreclosure proceedings.” Petz v. Estate of Petz, 467 N.E.2d 780, 782 (Ind.App.1984). Indeed, the Bank itself asked the lower court for permission to continue with its foreclosure, not to conduct a private sale. In short, the lower court was not empowered to bypass the foreclosure action and allow a private sale. Accordingly, because of these factors, when considered either independently or cummulatively, this Court determines that it has jurisdiction to review the merits of the appeal. The issues raised have not been mooted, and the Court will proceed to determine whether the Bankruptcy Court erred in lifting the stay. B. Did cause exist for modifying the automatic stay? 1. Background: Section 362(a) of the Bankruptcy Code provides that upon the filing of a bankruptcy petition, all proceedings or efforts to recover a pre-petition claim are automatically stayed. 11 U.S.C. § 362(a). “Bankruptcy courts impose automatic stays to preserve the remainder of the debtor’s estate as well as to provide an equitable ... procedure for the creditors.” In Re Boomgarden, 780 F.2d 657, 663 (7th Cir.1985). As one court has noted, The automatic stay ... is designed to prevent a chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts. The stay insures that the debtor’s affairs will be centralized, initially, in a single forum in order to prevent conflicting judgments from different courts and in order to harmonize all of the creditors’ interests with one another. Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47, 55 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977). An automatic stay restraining actions against property remains in effect until such" }, { "docid": "6503166", "title": "", "text": "any transfer or other disposition of, or interfering with any property not exempt from the enforcement of a judgment therefrom ... belonging to the judgment debtor.” 735 ILCS 5/2—1402(f)(1). A party who violates the restraining provision of a citation may be punished by the court for contempt. 735 ILCS 5/2-1402(f)(1). The citation under state law and its restraining provision only bars transfer of a debtor’s nonexempt property. Thus, if a debtor uses or spends exempt property, there is no violation of the citation and a bankruptcy debtor should not be subject to contempt charges under state law. Also, it is clear that if a debtor receives property belonging to another from that person after service of the citation, that money is likewise not affected by the citation. While Illinois law provides for commencement of a citation supplementary proceeding, once a judgment debtor files in bankruptcy, the bankruptcy automatic stay goes into effect and proscribes certain actions by a judgment creditor against the debtor. See § 11 U.S.C. § 362. The automatic stay prevents a “chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.” In re Rimsat, Ltd., 98 F.3d 956, 961 (7th Cir.1996). The filing of a bankruptcy petition ... operates as a stay, applicable to all entities of (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. 11 U.S.C. § 362(a)(1). Under the Bankruptcy Code, either the applicable state law or the federal exemptions may be selected pursuant to 11 U.S.C. § 522(b) unless a state chooses to “opt out” of the federal exemption system. The state of Illinois has “opted out” of the federal exemption system. 735 ILCS 5/12-1201. Thus, in order to claim exemptions in bankruptcy, an Illinois debtor must schedule in bankruptcy all property that is asserted to" }, { "docid": "23571513", "title": "", "text": "affirmed the bankruptcy court’s order, noting: While we agree that Congress intended that the automatic stay have broad application, the legislative history to Sec. 362 clearly indicates that Congress recognized that the stay should be lifted in appropriate circumstances. It states: It will often be more appropriate to permit proceedings to continue in their place of origin, when no great prejudice to the bankruptcy estate would result, in order to leave the parties in their chosen forum and to relieve the bankruptcy court from many duties that may be handled elsewhere. Id. at 508, citing S.Rep. No. 989, 95th Cong., 2d Sess. 50, reprinted in 1978 U.S. Code Cong. & Ad.News 5787, 5836. In the present case, PFW has not asserted any prejudice resulting from allowing this counterclaim, and further, it is significant that lifting the stay will leave the parties in the plaintiff, PFW’s chosen forum. Given the procedural history of this case, the court concludes that there are compelling reasons for allowing Gannett to prosecute its compulsory counterclaim in the same forum that PFW has chosen to litigate its claim against Gannett. Furthermore, the court notes that, if the motion to substitute parties had been denied, then PFW would have had to file an adversary proceeding in bankruptcy against Gannett to obtain the requested relief, and Gannett would have been able to assert its compulsory counterclaim against PFW in that proceeding (See Rule 7013, which states that Fed.R.Civ.P. 13 applies in adversary proceedings). The Holtkamp court further noted that the lifting of the stay to permit the continuation of the pending litigation [was] in complete harmony with the Code’s policy of quickly and efficiently formulating plans for repayment and reorganization. The purpose of the automatic stay is to preserve what remains of the debtor’s insolvent estate and to provide a systematic equitable liquidation procedure for all creditors, secured as well as unsecured, ... thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ Holtkamp, 669 F.2d at 508, citing In re Frigitemp Corp., 8 B.R. 284, 289 (S.D.N.Y.1981)." }, { "docid": "1281528", "title": "", "text": "the automatic stay? 1. Background: Section 362(a) of the Bankruptcy Code provides that upon the filing of a bankruptcy petition, all proceedings or efforts to recover a pre-petition claim are automatically stayed. 11 U.S.C. § 362(a). “Bankruptcy courts impose automatic stays to preserve the remainder of the debtor’s estate as well as to provide an equitable ... procedure for the creditors.” In Re Boomgarden, 780 F.2d 657, 663 (7th Cir.1985). As one court has noted, The automatic stay ... is designed to prevent a chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts. The stay insures that the debtor’s affairs will be centralized, initially, in a single forum in order to prevent conflicting judgments from different courts and in order to harmonize all of the creditors’ interests with one another. Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47, 55 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977). An automatic stay restraining actions against property remains in effect until such property is no longer in the estate. § 362(c)(1). The automatic stay, however, is not without flexibility. Section 362(d) of the Code provides two separate grounds for obtaining relief from the automatic stay. The statute reads as follows: On request of a party in interest and after notice and hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. 11 U.S.C. § 362(d). Thus, under § 362(d)(1), relief is available if “cause” is shown. The Code specifically states that the lack of adequate protection is one type of sufficient cause. Under § 362(d)(2), relief from the stay is only available if the debtor does not" }, { "docid": "18887825", "title": "", "text": "petition and is thus not subject to section 362(a)(1). 1. Whether the Undercharge Proceeding Before the ICC Constituted an Action “Against the Debtor” Section 362(a)(1) stays two types of actions: actions “against the debtor that [were] or could have been commenced before the commencement of the case under this title” or actions “to recover a claim against the debtor that arose before the commencement of the case under this title.” In either case, section 362(a)(1) applies only to actions against the debtor. This limitation is consistent with the purposes of section 362(a). That section establishes that a bankruptcy petition shall operate as a stay “of various types of actions to obtain affirmative relief against the debtor or his property.” Holland America Ins. Co. v. Succession of Roy, 777 F.2d 992, 995 (5th Cir.1985). The Senate Report stated: The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy. S.Rep. No. 989, 95th Cong., 2d 54 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5840; see also H.R.Rep. No. 595, 95th Cong., 1st Sess. 174, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6135. Although the proceeding before the ICC was titled Honeywell Inc. v. Transportation Systems International, Inc., Bankrupt, and Transport Audit Service, Inc. and would have been defended by TSI, Honeywell is not a creditor of TSI and did not seek to collect or foreclose on assets of TSI. Indeed, the purpose of that action was to address the propriety of claims being asserted by TSI against Honeywell. Honeywell argues that because its action was defensive it was outside the scope of section 362(a)(1). This argument finds support in Price & Pierce Int’l Inc. v. Spicers Int’l Paper Sales, Inc., 50 B.R. 25 (S.D.N.Y.1985). That case was an interpleader action. Plaintiff Price & Pierce had deposited an interpleader" }, { "docid": "18887828", "title": "", "text": "parties at the time of the initial proceedings will determine whether an action is “against the debtor.” See, e.g., Teacher Ins. & Annuity Ass’n of America v. Butler, 803 F.2d 61, 64-65 (2d Cir.1986); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 62 (6th Cir.1983); Ass’n of St. Croix Condominium Owners v. St. Croix Hotel, 682 F.2d 446, 449 (3d Cir.1982). In each of these cases, however, the courts were considering whether the stay was applicable to an appeal by the debtor in an action originally brought against the debtor by a creditor. Cf. Freeman v. Commissioner of Internal Revenue, 799 F.2d 1091, 1092-93 (5th Cir.1986) (stay not applicable where initial proceeding brought by debtor). The Court holds that section 362(a)(1) was not applicable to Honeywell’s action before the ICC because that action was not “against the debtor,” as provided in that section. Honeywell’s action was a response to claims asserted by the debtor, TSI, for undercharges. Responding to a recent decision by the ICC to accept petitions concerning undercharge disputes without a prior court referral, Honeywell filed a complaint seeking a declaratory order establishing that collection of the alleged undercharges constituted an unreasonable practice. In its complaint, Honeywell did not seek any property of the estate or the debtor. Although TSI is nominally a defendant, the action is in fact an effort by Honeywell to defend itself from claims asserted by TSI. It is within neither the letter nor the spirit of the statute to regard the automatic stay as applying to such an action. The purpose of the stay is “to preserve what remains of the debtor’s insolvent estate and to provide a systematic equitable liquidation procedure for all creditors ... thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ ” In re Holtkamp, 669 F.2d 505, 508 (7th Cir.1982) (citation omitted), quoting In re Frigitemp Corp., 8 B.R. 284, 289 (S.D.N.Y.1981). Honeywell’s action did not assert a claim against the estate or threaten to disrupt the liquidation procedure established by the Code. Accordingly, Honeywell’s action should" }, { "docid": "4753011", "title": "", "text": "administrative expense of the case. The Commis sioner may also request the court to determine the tax liability of the estate pursuant to 11 U.S.C. § 505(c). In addition, the Commissioner has the option to petition the court for relief from the automatic stay pursuant to 11 U.S.C. § 362(d). Finally, the Commissioner could request the court to dismiss the Chapter 11 case or to convert the Chapter 11 reorganization to a case under Chapter 7 pursuant to 11 U.S.C. § 1112. The Commissioner’s interest in prompt payment of state sales and use taxes does not outweigh the vital federal interest in insuring the orderly and efficient administration of the bankruptcy estate through the utilization of the automatic stay. In Holtkamp v. Littlefield, 669 F.2d 505, 508 (7th Cir. 1982), the Seventh Circuit Court of Appeals aptly described the necessity for an automatic stay: “The purpose of the automatic stay is to preserve what remains of the debtor’s insolvent estate and to provide a systematic equitable liquidation procedure for all creditors, secured as well as unsecured, H.Rep.No.595, 95th Cong., 1st Sess. 340 (1977), reprinted in (1978) U.S.Code Cong. & Ad.News 6296-97, thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ In re Frigitemp Corp., 8 B.R. 284, 289 (D.C.S.D.N.Y.1981) citing Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47, 55 (2d Cir. 1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977).” This court accordingly finds that Congress’ enactment of the automatic stay provisions in 11 U.S.C. 362 pursuant to its federal bankruptcy power did not transgress the notions of federalism as contained in the tenth amendment of the United States Constitution. This court also rejects the Commissioner’s contention that the automatic stay as applied to the State of Tennessee violates the eleventh amendment to the United States Constitution. The automatic stay simply delays the Commissioner from enforcing the. State of Tennessee’s tax claim against property of the estate. If the Commissioner initiates an adversary proceeding seeking relief from the automatic stay, the Commissioner is" }, { "docid": "16469667", "title": "", "text": "response brief. Inasmuch as Federal Press failed to file its reply brief within the time required by the court’s Order of January 23, 1989, the court finds that the reply should be stricken from the record. The court further notes that Federal Press’ reply also fails to comply with the briefing schedule to which the parties stipulated. 2. Cross motion for determination that automatic stay does not apply Pursuant to 28 U.S.C. § 157(b)(2)(G) motions concerning the automatic stay are core proceedings which bankruptcy courts may hear and determine. 28 U.S.C. § 157(b)(2)(G) (Callaghan 1988). The court thus concludes that it has jurisdiction to determine whether the automatic stay is applicable to Juarez’ state court action. With respect to the automatic stay 11 U.S.C. § 362(a) provides in relevant part: (a) ... [A] petition ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; * * % ‡ (3)any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; .... 11 U.S.C. § 362(a)(1) and (3) (Callaghan 1988). The purpose of the automatic stay is to preserve the debtor’s estate and provide for the orderly distribution of the debtor’s assets “thereby preventing a ‘chaotic and uncontrolled scramble for the debt- or’s assets in a variety of uncoordinated proceedings in different courts.’ ” Holt kamp v. Littlefield (In re Holtkamp), 669 F.2d 505, 508 (7th Cir.1982) (citing H.R. Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), reprinted in [1978] U.S.Code Cong. & Ad.News 5787, 6296-97, and quoting Litton Systems, Inc. v. Frigitemp Corp. (In re Frigitemp Corp.), 8 B.R. 284, 289 (S.D.N.Y.1981), citing Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47, 55 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct." }, { "docid": "23270620", "title": "", "text": "purposes underlying section 362(a) — debtor protection and creditor protection — are explained in legislative history. Legislative intent in enacting the automatic stay is clear; Congress wanted to stop collection efforts for antecedent debts. Congress meant for the debtor to obtain a fresh start free from the immediate financial pressures that caused it to go into bankruptcy. “The stay is designed to be a defensive shield, affording the debtor the much needed ‘breathing space’ that he presumably lacked during the period immediately preceding the filing of the bankruptcy petition. However, the stay is not designed to be an offensive weapon ...” Turner Broadcasting System, Inc. v. Sanyo Electric, Inc., 33 B.R. 996 (N.D.Ga.1983). The second critical legislative purpose, creditor protection, is served by preventing a chaotic and uncontrolled scramble among creditors claiming the debtor’s assets. Despite the broad scope of the automatic stay, it is not all-encompassing. Subsection 362(a)(1) prevents the commencement or continuation of actions that were or could have been commenced against the debtor before it filed a bankruptcy petition. “Proceedings or claims arising post-petition are not subject to the automatic stay.” Avellino & Bienes v. M. Frenville Co., Inc., (In re Frenville Co., Inc.), 744 F.2d 332 (3d Cir.1984). “The stay simply does not apply to post-bankruptcy events.” Holland America Insurance Co., 777 F.2d at 996. The entire thrust of Appellants’ complaint focuses upon claims which arose after the date of Appellee’s Chapter 11 petition from alleged torts committed in connection with Continental’s attempt to takeover UMDA. Nevertheless, Continental urges that Appellants have been properly stayed from pursuing their cause of action by virtue of subsection 362(a)(1) because the complaint filed in the N.M.I. seeks an accounting. Although an accounting which ordered the 'payment of an antecedent debt might constitute a violation of the automatic stay, and threaten interference with this district’s exclusive jurisdiction over the debtor’s estate, Appellants assert that Continental’s failure to render a proper accounting to Air Mike, both pre-petition and during the pendency of the bankruptcy proceedings, has damaged the creditworthiness of UMDA, and artificially depressed the price of its stock so that" }, { "docid": "6582929", "title": "", "text": "(4) any act to create, perfect, or enforce any lien against property of the estate; (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; (7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and (8) the commencement or continuation •of a proceeding before the United States Tax Court concerning the debtor. 11 U.S.C. § 362(a). The scope of the automatic stay provision of 11 U.S.C. § 362 is broad and encompasses all proceedings, even those not before governmental tribunals. H.R. No. 595, 95th Cong., 2d Sess. (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 6297. Title 11 U.S.C. § 362 freezes the rights of creditors as of the date of the filing of a petition under the Bankruptcy Code in order to protect against the piecemeal distribution of the bankruptcy estate. The automatic stay also operates to ensure that claims against a debtor’s estate are resolved in an orderly fashion in accordance with the priorities scheme of the Bankruptcy Code, and to prevent a “ ‘chaotic and uncontrolled scramble for the debt- or’s assets in a variety of uncoordinated proceedings in different courts.’ ” In re Holtkamp, 669 F.2d 505, 508 (7th Cir.1982) (quoting In re Frigitemp Corp., 8 B.R. 284, 289 (S.D.N.Y.1981)). Section 362(b)(4) and (5) provide: (b) The filing of a petition ... does not operate as a stay— (4) under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power; (5) under subsection (a)(2) of this section, of the enforcement of a judgment, other than a money judgment, obtained in an action or proceeding by a governmental unit to enforce" }, { "docid": "11252689", "title": "", "text": "creates an estate consisting of all — subject to certain exemptions for individual debtors, see 11 U.S.C. § 522 — of the debtor’s property, broadly defined, see 11 U.S.C. § 541, at the moment of the filing and certain other property recaptured by the estate during the bankruptcy proceeding, see, e.g., 11 U.S.C. §§ 547 (preferences), 548 (fraudulent transfers). This property becomes the “pot” from which all claims against the debtor, see 11 U.S.C. §§ 101(5), 502, will be paid pursuant to the Code’s priority scheme, see 11 U.S.C. § 507. Commencement of a suit automatically imposes a broad stay of other proceedings against the debtor and its property. See 11 U.S.C. § 362(a). “The purpose of the automatic stay is to protect creditors in a manner consistent with the bankruptcy goal of equal treatment. The stay of pre-petition proceedings enables the bankruptcy court to decide whether it will exercise its power under § 502(b) of the Bankruptcy Code to establish the validity and amount of claims against the debtor or allow another court to do so.... ” Hunt v. Bankers Trust Co., 799 F.2d 1060, 1069 (5th Cir.1986) (footnotes omitted). The stay helps “preserve what remains of the debtor’s insolvent estate and ... provide a systematic equita ble liquidation procedure for all creditors, secured as well as unsecured, thereby-preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.’ ” Holtkamp v. Littlefield, 669 F.2d 505, 508 (7th Cir.1982). Companies or individuals attempting to reorganize their affairs under Chapter 11 continue to conduct business during the pendency of the proceedings, -with the bankruptcy case designed to give the debtor a second chance by permitting discharge of certain pre-petition debts, payment (over time and under court supervision) of certain pre-petition creditors, and use by the debtor of proceeds from ongoing operations to finance continuing operations and get the debtor back on its feet. A Chapter 11 debtor in possession remains obligated to pay most liabilities arising after commencement of the bankruptcy proceeding: post-petition debts are generally treated as administrative expenses to which" }, { "docid": "23270619", "title": "", "text": "the leading commentator on bankruptcy notes that nothing in the 1984 amendments addresses the exercise of contempt power by the bankruptcy judge, Collier echoes the previously cited authorities. Finally, though not controlling here, this Court’s independent determination is buttressed by the Preliminary Draft of Proposed Bankruptcy Rules (1985). The proposed rules recommend the amendment of present Rule 9020 to require that a motion for contempt be filed in the district court, and limits a sua sponte motion to certification of facts to the district court. In either case, proposed Rule 9020 dispels any lingering notions that a contempt proceeding is a core proceeding. To the extent that the contempt order entered against Hillblom purports to be a final order, it is determined to be inconsistent with the constitutional limitations imposed upon the authority of the Bankruptcy Court and is therefore reversed. VI. The Applicability of the Automatic Stay to Pre-Petition Claims The automatic stay provision is one of the fundamental procedural protections afforded to debtors by the Code. 11 U.S.C. § 362(a). The two critical purposes underlying section 362(a) — debtor protection and creditor protection — are explained in legislative history. Legislative intent in enacting the automatic stay is clear; Congress wanted to stop collection efforts for antecedent debts. Congress meant for the debtor to obtain a fresh start free from the immediate financial pressures that caused it to go into bankruptcy. “The stay is designed to be a defensive shield, affording the debtor the much needed ‘breathing space’ that he presumably lacked during the period immediately preceding the filing of the bankruptcy petition. However, the stay is not designed to be an offensive weapon ...” Turner Broadcasting System, Inc. v. Sanyo Electric, Inc., 33 B.R. 996 (N.D.Ga.1983). The second critical legislative purpose, creditor protection, is served by preventing a chaotic and uncontrolled scramble among creditors claiming the debtor’s assets. Despite the broad scope of the automatic stay, it is not all-encompassing. Subsection 362(a)(1) prevents the commencement or continuation of actions that were or could have been commenced against the debtor before it filed a bankruptcy petition. “Proceedings or claims" }, { "docid": "10216076", "title": "", "text": "procedure for all creditors, secured and unsecured ... thereby preventing a ‘chaotic and uncontrolled scramble for the debtor’s assets in a variety of uncoordinated proceedings in different courts.” In re Holtkamp, 669 F.2d 505, 508 (7th Cir.1982) (citation omitted) (quoting In re Frigitemp Corp., 8 B.R. 284, 289 (S.D.N.Y.1981)). Although the scope of the automatic stay “is undeniably broad,” In re Bialac, 712 F.2d 426, 431 (9th Cir.1983), it does not operate to stay all actions involving the bankrupt. The reach of the automatic stay is limited by its purposes. The automatic stay provision normally applies to actions in which the bankrupt is a defendant. Although SIPSI is a named defendant, its status in that regard is nominal. In making claim to the Fund, SIPSI takes the role of plaintiff in this action. Thus, this is not an action to obtain possession of property held by SIPSI, as required for the invocation of § 362; rather, it is an action to determine whether the Fund, or some part thereof, rightfully belongs to Papeteries or SIPSI. In order to determine whether the stay applies, therefore, the Court must first determine whether the bankrupt is in fact the owner of the Fund. See Amoco Pipeline Co. v. Admiral Crude Oil Corp., 490 F.2d 114, 116 (9th Cir.1974); Shell Pipeline Corp. v. West Texas Marketing Corp., 540 F.Supp. 1155, 1161 (S.D.Tex.1982). This is admittedly not an action, indisputably outside § 362, in which the bankrupt is proceeding against monies held by another party. The monies sought are with the Clerk of the Court. Nonetheless, the right to pursue an interpleader action is not affected by the fact that one of the claimants has filed a petition in bankruptcy. Dakota Livestock Co. v. Keim, 552 F.2d 1302, 1305 (8th Cir.1977); Shell Pipeline, 540 F.Supp. at 1161; but see NLT Computer Services Corp. v. Capital Computer Systems, Inc., 755 F.2d 1253 (6th Cir.1984). Any broader reading of § 362 would not serve the purposes of the section and would unduly handicap the efforts of Price & Pierce and Papeteries to resolve this dispute. Accordingly, SIPSI’s" } ]

[ { "docid": "22229202", "title": "", "text": "defendant from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.” The words “initially present” indicate that the defendant is physically in the courtroom, and may be removed or excluded “from the courtroom” for certain behavior. It would be inconsistent for the word “present” to mean “in sight” in (a), as the dissent suggests, and for the word to mean physically present in the courtroom, which is the import of the language in (b). This inconsistency indicates that the term “present,” as it is used in the Rule, must mean physical existence at the same place. The context of the Rule negates the dissent’s reading of “presence.” The dissent attempts to bolster its conclusion by reference to Rule 2. We do not believe that Rule 2 can aid our construction of Rule 43 in this instance. Rule 2 instructs that: These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. FED. R. CRIM. P. 2. The context of Rule 43 indicates, as explained above, that the term “presence” requires physical presence. Although Rule 2 is a rule of statutory construction, Rule 2 does not require that a Rule be construed in contravention of its clear language. Reference to the Advisory Committee Notes to Rule 43 bolsters the contextual interpretation of the meaning of “presence.” The Advisory Committee Notes are instructive on the drafters’ intent in promulgating the federal rules. See Williamson v. United States, 512 U.S. 594, 614-15, 114 S.Ct. 2431, 2442, 129 L.Ed.2d 476 (1994) (Kennedy, J., concurring) (listing cases taking Advisory Committee Notes as authoritative evidence of intent). The Notes suggest that the drafters of the Rule used “present” to mean physically being in the courtroom. When Rule 43 was adopted, it was meant to codify the right to be personally present. The Notes from the 1944 adoption state: The first sentence of the rule setting forth the necessity of the defendant’s presence at arraignment and trial is" } ]

[ { "docid": "1340485", "title": "", "text": "L.Ed.2d 508 (1993). Following a stylistic change in 2002, see Fed.R.Crim.P. 52 advisory committee note to 2002 amendment, the current version provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Rule 12, by contrast, states that where a motion to suppress evidence is concerned, the motion “must be raised before trial.” Fed.R.Crim.P. 12(b)(3)(C). Section (c) of the Rule permits the district court to “set a deadline for the parties to make” such a motion, and section (e) provides that a “party waives any Rule 12(b)(3) [which includes motions to suppress] defense, objection, or request not raised by the deadline the court sets” (emphasis added), though “[f|or good cause, the court may grant relief from the waiver.” Rule 12’s history is considerably more complex than Rule 52(b)’s. Suppression motions were previously covered by Rule 41(e), which provided that “[a] person aggrieved by an unlawful search and seizure may move the district court ... to suppress [unlawfully obtained evidence],” and that “[t]he motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.” Though Criminal Procedure Rule 41(e) at the outset required a defendant to raise suppression motions before trial or hearing absent cause or permission from the district court, it did not specify the consequences should the defendant fail to do so. The consequence, we presume, would have been forfeiture, not waiver; whereas the intentional relinquishment or abandonment of a known right is typically a waiver, an unintentional failure to assert timely a right is a forfeiture that results in plain error review. See Olano, 507 U.S. at 733-34, 113 S.Ct. 1770; Chavez-Valencia, 116 F.3d at 130. When the provisions governing suppression issues moved to Rules 41(f) and 12 in 1972, they arguably no longer required that motions to suppress be raised before trial. See Chavez-Valencia, 116 F.3d at 130. Rule 41(f) read that “[a] motion to suppress" }, { "docid": "10761322", "title": "", "text": "the party shows good cause. Id. app. B at 5. Thus, the Advisory Committee’s Note about the “existing standard for untimely claims” simply clarifies that district courts should not apply different standards to different 'types of Rule 12(b)(3) motions, as the original proposal had suggested. The Advisory Committee’s Note therefore does not resolve the question now before us: Does the failure to file a timely Rule 12(b)(3) motion result in a waiver, barring all appellate review? To answer that question, we begin with the text of the new Rule 12(c)(3). When interpreting rules, we must give effect to the plain meaning of the text. Perez v. Postal Police Officers Ass’n, 736 F.3d 736, 740 (6th Cir.2013). When examining the plain meaning of the rule, we “ ‘look[ ] at the language and design of the [rule] as a whole,’ ” and “[i]f the [rule’s] language is not clear, we may examine the relevant legislative history.” United States v. Parrett, 530 F.3d 422, 429 (6th Cir.2008) (quoting United States v. Wagner, 382 F.3d 598, 606-07 (6th Cir.2004)). The Advisory Committee’s decision to delete the word “waiver” was quite intentional, as the Advisory Committee explained in its 2014 note. Indeed, one of the primary reasons to eliminate the term “waiver” from the rule was because the committee believed that courts were incorrectly treating the failure to file a timely pretrial motion as an intentional relinquishment of a known right, and therefore an absolute bar to appellate review. During the drafting process, Judge Sutton, the chair of the Standing Committee, emphasized that it was “imperative to get rid of the term hvaiver’ in Rule 12(e),” noting that the language was drafted before Ola-no and “makes no sense now.” April 25, 2013 Advisory Committee Minutes, supra, at 6. The Advisory Committee’s Note about Rule 12 provides additional evidence to support the conclusion that appellate courts are not to presume that a defendant’s failure to file a timely pretrial motion is a waiver. Fed.R.Crim.P. 12, 2014 advisory committee’s note (“Although the term waiver in the context of a criminal ease ordinarily refers to the intentional" }, { "docid": "10761323", "title": "", "text": "Cir.2004)). The Advisory Committee’s decision to delete the word “waiver” was quite intentional, as the Advisory Committee explained in its 2014 note. Indeed, one of the primary reasons to eliminate the term “waiver” from the rule was because the committee believed that courts were incorrectly treating the failure to file a timely pretrial motion as an intentional relinquishment of a known right, and therefore an absolute bar to appellate review. During the drafting process, Judge Sutton, the chair of the Standing Committee, emphasized that it was “imperative to get rid of the term hvaiver’ in Rule 12(e),” noting that the language was drafted before Ola-no and “makes no sense now.” April 25, 2013 Advisory Committee Minutes, supra, at 6. The Advisory Committee’s Note about Rule 12 provides additional evidence to support the conclusion that appellate courts are not to presume that a defendant’s failure to file a timely pretrial motion is a waiver. Fed.R.Crim.P. 12, 2014 advisory committee’s note (“Although the term waiver in the context of a criminal ease ordinarily refers to the intentional relinquishment of a known right, Rule 12(e) has never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request that was not raised in a timely fashion.”). Thus, the drafters apparently believed the term “waiver” was “outdated in light of Olano,” and therefore “changed the term” to give the rule new meaning. See United States v. Rose, 538 F.3d 175, 183 (3d Cir.2008) (relying on the failure to revise Rule 12(e) to eliminate the term “waiver” in 2002, after Olano, when Rule 12(f) was moved to Rule 12(e) and other revisions were made); see also Walker, 665 F.3d at 228 (“We believe that Rule 12(e) says what it means and means what it says ... particularly since Congress amended it in 2002 (after the Supreme Court had made the distinction between waiver and forfeiture pellucid) and left the ‘waiver’ terminology intact.”). The Advisory Committee’s conscious decision to abandon the term “waiver” makes its intent crystal clear: courts may no longer treat a party’s failure" }, { "docid": "1340501", "title": "", "text": "arguments to the District Court, we do not consider them. 1. Rule 12, not Rule 52(b), Controls Though each of Rule 52(b) and Rule 12 appears applicable when read alone, when considered together we believe Rule 12’s waiver provision must prevail. The latter is much more specific than is Rule 52(b); while Rule 52(b) states generally that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” Rule 12(e) singles out motions to suppress, stating that a “party waives any [suppression] defense, objection, or request not raised by the [pretrial] deadline the court sets.” (Emphasis added.) In this context, “we apply the well-settled maxim that specific statutory provisions prevail over more general provisions.” Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir.2006) (internal quotation marks omitted). Thus we avoid “applying a general provision when doing so would undermine limitations created by a more specific provision.” Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Rose counters that Rule 12’s use of the term “waives” is arguably at odds with the Supreme Court’s definition of “waiver” in Olano — the “intentional relinquishment or abandonment of a right.” Olano, 507 U.S. at 733, 113 S.Ct. 1770. Per this argument, failure to comply with Rule 12 could be seen as more akin to a forfeiture — an inadvertent “failure to make the timely assertion of a right” — that would result in plain error review rather than a waiver. Id. Rule 12’s history, however, indicates that its text means what it says. As previously noted, in 1974 the Rules were changed to require — with an explicit threat of waiver — that motions to suppress be raised prior to trial in accordance with the district court’s desired timetable. In 2002, well after Olano, the waiver provision of section (f) was moved to section (e) and its text was revised, but the Advisory Committee kept the term “waiver” in place. See Fed.R.Crim.P. 12 advisory committee’s note to 2002 amendments. Had the drafters thought that term outdated in light" }, { "docid": "10761317", "title": "", "text": "al, supra § 193. Prior to the 2014 rule revision, we were inconsistent as well. Often we treated a party’s failure to file a timely pretrial motion as a “true waiver,” sometimes we considered the failure to file a pretrial motion as a forfeiture subject to plain-error review, sometimes we avoided resolving the proper characterization and conducted plain-error review in the alternative, and sometimes we examined whether the appellant had shown good cause for the failure to file a timely pretrial motion. In an apparent attempt to add some clarity to these muddy waters, the Advisory Committee recently recommended omitting the “non-standard use of the term “waiver’ ” from Rule 12. Advisory Committee on Criminal Rules, Minutes 3 (Apr. 25, 2013) (hereinafter April 25, 2013 Advisory Committee Minutes). The Advisory Committee made clear the reason for the recommended change: New paragraph (c)(3) governs the review of untimely claims, previously addressed in Rule 12(e). Rule 12(e) provided that a party “waives” a defense not raised within the time set under Rule 12(c). Although the term waiver in the context of a criminal case ordinarily refers to the intentional relinquishment of a known right, Rule 12(e) has never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request that was not raised in a timely fashion. Accordingly, to avoid possible confusion the Committee decided not to employ the term “waiver” in new paragraph (c)(3). New paragraph 12(c)(3) retains the existing standard for untimely claims. The party seeking relief must show “good cause” for failure to raise a claim by the deadline, a flexible standard that requires consideration of all interests in the particular case. Rule 12(e). The effect of failure to raise issues by a pretrial motion has been relocated from (e) to (c)(3). Fed.R.Crim.P. 12, 2014 advisory committee’s note. Santana argues that the deletion of the term “waiver” was a “substantive” change to the rule, and therefore we may no longer treat the failure to file a timely pretrial motion as an intentional relinquishment of a known right that forecloses" }, { "docid": "23193199", "title": "", "text": "that Mr. Hamilton was at cross-purposes with Mr. Adolphus; but, at any rate, there was \"mutual dependence and assistance” between Mr. Hamilton, Mr. Gayle, and Mr. Diaz for the benefit of Mr. Barker and his organization. This constitutes \"proof that the conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged.” See Heckard, 238 F.3d at 1231 (emphasis, alterations, and internal quotation marks omitted). . Rule 12 was revised in 2002 and, as a consequence, subsection (e) incorporated the substance of then-subsection (f). But by virtue of this revision, the drafters \"intend[ed] to make no change in the current law regarding waivers of motions or defenses.” Fed. R.Crim.P. 12 advisory committee’s note (2002 Amendments). Therefore, we rely freely on judicial decisions interpreting, and commenting on the effect of, the previous subsection ffi. . We recognize that ''[i]n several cases, we have engaged in plain-error review even after a defendant has failed to make a motion to suppress evidence prior to trial.” Brooks, 438 F.3d at 1240 n. 4. At least some of our sister circuits have strongly questioned the correctness of this approach. See, e.g., Rose, 538 F.3d at 182-83 (\"Though each of Rule 52(b) [providing for plain error review] and Rule 12 [providing for waiver] appears applicable when read alone, when considered together we believe Rule 12's waiver provision must prevail.”). Even though we acknowledge that plain error review is a possible option under our precedent, that does not avail Mr. Hamilton. Our cases counsel that, under the circumstances of this case, either plain error review is inappropriate altogether or a conclusion of plain error is untenable. We have stated that \"plain error review is not appropriate when the alleged error involves the resolution of factual disputes.” United States v. Easter, 981 F.2d 1549, 1556 (10th Cir.1992). The resolution of the Fifth and Fourth Amendment claims that Mr. Hamilton advances on appeal are heavily dependent on the character of the established facts. See Dewitt, 946 F.2d at 1502 (noting that \"the unlawful detention inquiry is fact intensive”). Indeed, Mr. Hamilton’s arguments on" }, { "docid": "10151300", "title": "", "text": "provides.” Fed.R.Crim.P. 12(b)(3). However, “waiver,” as used in Rule 12(e), did not mean the intentional relinquishment of a known right. United States v. Johnson, 415 F.3d 728, 730 (7th Cir.2005). Nonetheless, it barred appellate review unless the defendant established good cause for failing to file a motion to suppress. United States v. Acox, 595 F.3d 729, 731 (7th Cir.2010) (quoting Fed.R.Crim.P. 12(e)); United States v. Murdock, 491 F.3d 694, 698 (7th Cir.2007); Johnson, 415 F.3d at 730-31. While this appeal was pending, Rule 12 was amended, and “[t]he provision addressing the effect of a failure to raise an issue in a pretrial motion, formerly found in Rule 12(e), was relocated to Rule 12(c)(3), effective December 1, 2014.” United States v. McMillian, 786 F.3d 630, 636 n. 3 (7th Cir.2015). The revised rule deleted the reference to “waiver,” because “the rule [did] not contemplate waiver as that term is traditionally used in criminal cases.” McMillian, 786 F.3d at 636 n. 3 (citing Fed.R.Crim.P. 12(c), Advisory Committee’s Note), and now provides: “If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.” Fed.R.Crim.P. 12(c)(3). While Rule 12(c)(3) deleted the reference to “waiver,” “the amendment did not alter the applicable standard,” McMillian, 786 F.3d at 636 n. 3, which means that “[bjefore a court may consider an untimely motion to suppress, ‘a defendant must first establish good cause for the absence of a pretrial motion.’ ” McMillian, 786 F.3d at 636 (quoting Acox, 595 F.3d at 731). On appeal, Dean and Daniels argue they had good cause for failing to bring a motion to suppress because the legal authority supporting their argument was not decided until after pre-trial proceedings were completed. But nothing prevented Dean and Daniels from presenting a Fourth Amendment argument to the district court in a motion to suppress the cell tower location evidence. The defendants knew all they needed to know in order to make the Fourth Amendment argument, as one of first impression. That additional" }, { "docid": "10099774", "title": "", "text": "reject Baldwin’s challenge to the imposition of a two-level enhancement under U.S.S.G. § 3B1.3 for abuse of a position of trust, as well as his challenge to the restitution order. However, because Baldwin’s original sentence exceeded the statutory maximum and the district court lacked authority to correct the error after the seven-day period specified in Rule 35(a) had expired, we Vacate the sentence and Remand for resentencing. . Baldwin also contends that the statute of limitations expired on Count 2 of the indictment, but he has apparently miscalculated. Count 2 charged wire fraud in connection with a letter sent by Baldwin to Piscopo on April 14, 1994. The indictment was returned five years and one week later, well within the statute of limitations as lengthened by virtue of Acting Chief Judge Koeoras' order. . We say “at best” because there is an argument, not made by the government, that under fed. R. Crim. P. 12(b)(3) Baldwin has waived and not merely forfeited his statute of limitations defense. Rule 12(b)(3) specifies motions that must be made before trial; the rule includes motions “alleging a defect in instituting the prosecution” or \"a defect in the indictment or information.” Rule 12(e) provides that matters covered by Rule 12(b)(3) that are not raised by the pretrial motion deadline set by the court are waived, subject to the district court’s authority to grant relief from the waiver “[f]or good cause.\" Other circuits apply Rule 12(b)(3) and the waiver rule of (e) to statute of limitations arguments. United States v. Ramirez, 324 F.3d 1225, 1228-29 (11th Cir.2003); United States v. Gallup, 812 F.2d 1271, 1280 (10th Cir.1987). In this circuit, statute of limitations arguments not timely raised in the district court are considered forfeited, not waived, and are accorded plain-error review. United States v. Ross, 77 F.3d 1525, 1536 (7th Cir.1996). The holding in Ross is premised upon certain language in the advisory committee note to Rule 12(b) suggesting that a statute of limitations defense is among those matters that may, not must, be raised by pretrial motion. Id. The government has not argued that Ross" }, { "docid": "10761318", "title": "", "text": "in the context of a criminal case ordinarily refers to the intentional relinquishment of a known right, Rule 12(e) has never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request that was not raised in a timely fashion. Accordingly, to avoid possible confusion the Committee decided not to employ the term “waiver” in new paragraph (c)(3). New paragraph 12(c)(3) retains the existing standard for untimely claims. The party seeking relief must show “good cause” for failure to raise a claim by the deadline, a flexible standard that requires consideration of all interests in the particular case. Rule 12(e). The effect of failure to raise issues by a pretrial motion has been relocated from (e) to (c)(3). Fed.R.Crim.P. 12, 2014 advisory committee’s note. Santana argues that the deletion of the term “waiver” was a “substantive” change to the rule, and therefore we may no longer treat the failure to file a timely pretrial motion as an intentional relinquishment of a known right that forecloses appellate review. Santana Resp. to Pet. for Rehr’g at 2. In contrast, the government contends that the retention of “ ‘the existing standard for untimely claims’ ” includes reten tion of our prior standard of review — a complete bar to appellate review. Pet. for Panel Rehr’g at 8-9 (quoting Fed. R.Crim.P. 12, 2014 advisory committee’s note). To resolve this dispute, we begin by looking at the government’s argument. Contrary to the government’s claim, the sentence from the 2014 Advisory Committee’s Note does not lead to the ineluctable conclusion that the amendments to Rule 12(c)(3) do not alter the standard of review that appellate courts must apply to Rule 12(b)(3) issues raised for the first time on appeal. The government relies heavily on a topic sentence of .a paragraph that reads as follows: New paragraph 12(c)(3) retains the existing standard for untimely claims. The party seeking relief must show “good cause” for failure to raise a claim by the deadline, a flexible standard that requires consideration of all interests in the particular case. Fed.R.Crim.P. 12," }, { "docid": "10761367", "title": "", "text": "unclear whether[] the waiver resulted only from a failure to raise the issue prior to trial or from the failure to do so by the deadline fixed by the judge. The 1975 change made it clear that the latter view was intended.” Wright et al., supra § 190 n. 24. In 2002, the Advisory Committee moved the contents of Rule 12(f) to Rule 12(e) and made a few stylistic changes, but did not \"intend[] to make [a] change in the current law regarding waivers of motions or defenses.” Fed. R.Crim.P. 12, 2002 advisory committee’s note; see also Wright et al., supra § 190. . Olano was the first time a majority of the Supreme Court differentiated between “waiver” and “forfeiture.” As support, the Court cited a concurrence authored by Justice Sca-lia and numerous law review articles. Olano, 507 U.S. at 733, 113 S.Ct. 1770 (citing Freytag v. Commissioner, 501 U.S. 868, 894 n. 2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Sca-lia, J., concurring in part and concurring in the judgment); Ralph S. Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U. Pa. L.Rev. 473, 474-77 (1978); Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L.Rev. 1214, 1214-15 (1977)). Thus, courts and scholars did not use the terms consistently until the Supreme Court clarified the difference in 1993. . Some courts took the position that \"Rule 12(e) says what it means and means what it say's,” and therefore a party's failure to file a motion before the deadline is a “true waiver” — an intentional relinquishment of a known right — and appellate review is completely foreclosed. United States v. Walker, 665 F.3d 212, 228 (1st Cir.2011); see also United States v. Rose, 538 F.3d 175, 183 (3d Cir.2008) (concluding that failure to file a motion to suppress before the pretrial deadline resulted in a true waiver, unless the appellant showed good cause to excuse the waiver). Other courts have used plain-error review instead. See, e.g., United States v. Robinson, 627 F.3d 941, 957 (4th Cir.2010) (applying plain-error" }, { "docid": "20701802", "title": "", "text": "no chance that the officers could have searched the wrong premises, as they had personal knowledge of McMil-lian’s house. Under these circumstances, the warrant described McMillian’s house with sufficient particularity, and it did not become invalid when Detective Gomez corrected the typographical error with the issuing judge’s permission. In sum, we conclude that the search warrant satisfied the Fourth Amendment’s requirements. III. Conclusion For the reasons stated above, we AFFIRM the district court’s denial of McMil-lian’s motion to quash the search warrant. . A grand jury handed down a superseding indictment on October 18, 2011. McMillian was convicted by a jury of four counts of sex trafficking. According to the government, none of the materials seized from McMillian's house were used in the prosecution of the sex trafficking case. This court recently affirmed McMillian's sex trafficking conviction but vacated the sentence imposed by the district court. United States v. McMillian, 777 F.3d 444, 452 (7th Cir.2015). . Rule 12 was amended while this appeal was pending. The provision addressing the effect of a failure to raise an issue in a pretrial motion, formerly found in Rule 12(e), was relocated to Rule 12(c)(3), effective December 1, 2014. The reference to “waiver” was removed to clarify that the rule does not contemplate waiver as that term is traditionally used in criminal cases. Fed. R. Crim. P. 12(c) advisory committee's note. Because the amendment did not alter the applicable standard, we apply the current version of Rule 12. See United States v. Bennett, 332 F.3d 1094, 1100 n. 2 (7th Cir.2003). . The court of appeals analyzes the good-cause determination for abuse of discretion, because \"the good-cause decision is committed to the district court.” Acox, 595 F.3d at 732. When confronted with a motion that was not presented to the district court, we ask whether the district court would have abused its discretion had it denied a request to present an untimely motion. Id. Where, as here, the defendant has not articulated any rationale that would support a good-cause determination, the district court would not have abused its discretion by refusing to consider" }, { "docid": "1340488", "title": "", "text": "must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver. The advisory committee notes to the 1974 amendment to Rule 12 confirmed that “[subdivision (b) is changed to provide for some additional motions and requests which must be made prior to trial,” and specifically that “[s]ubdivision (b)(3) makes clear that objections to evidence on the ground that it was illegally obtained must be raised prior to trial.” Fed.R.Crim.P. 12 advisory committee’s note to 1974 amendment. Subsequent minor changes notwithstanding, the 1974 amendments resulted in the treatment of suppression motions in Rule 12 that exists today. The waiver provision of section (f) was moved to section (e) in 2002, and its text was revised, but in making the change “the [Advisory] Committee intended] to make no change in the ... law regarding waivers of motions or defenses.” Fed.R.Crim.P. 12 advisory committee’s note to 2002 amendments. B. Our Court’s Decisions Our Court has never explicitly acknowledged the tension between Rule 12’s waiver provision and Rule 52(b)’s plain error provision where suppression issues raised for the first time on appeal are concerned. In one line of cases we have applied waiver and in another we have applied plain error, yet no case in either line refers to any case in the other line during its discussion of the suppression issue, nor to the Rule that arguably presents a different standard. Our waiver cases began with Frank, where we invoked Rule 12(b)(3) to hold that the defendant waived his argument that, inter alia, the warrant did not issue in compliance with Federal Rule of Criminal Procedure 41(a) because he did not raise the issue to the district court. 864 F.2d at 1006. Then, in Velasquez we held that because the defendant did not raise to the district court her argument that her confession was involuntary, we “d[id] not reach the confession issue.” 885 F.2d at 1084 n. 6. And in Martinez-Hidalgo," }, { "docid": "10761329", "title": "", "text": "courts, and not to the courts of appeals. Records available suggest that the Advisory Committee considered and rejected an amendment to include a cross reference to Rule 52 from a draft version of Rule 12(c)(3) because it was “unnecessarily controversial.” Fed. R.Crim.P. 12, 2014 advisory committee’s note. The Criminal Rules Subcommittee minutes reveal why: “The Subcommittee ultimately agreed it was best not to try to tie the hands of appellate courts.” April 25, 2013 Advisory Committee Minutes, supra, at 4; see also May 2013 Report to the Standing Committee, supra, at 5-6 (“The amended rule, like the current one, continues to make no reference to Rule 52 (providing for plain error review of defaulted claims), thereby permitting the Courts of Appeals to decide if and how to apply Rules 12 and 52 when arguments that should have been the subject of the required Rule 12(b)(3) motions are raised for the first time on appeal.”). For that reason, the subcommittee deleted the proposed reference to Rule 52 in order to “allow the appellate courts to determine whether to apply the standards specified in Rule 12(c) or the plain error standard specified in Rule 52 when untimely claims are raised for the first time on appeal.” Id. at 4. When the subcommittee opened the floor to further discussion or proposed amendments, however, Judge Sutton emphasized that “[g]iving district judges more flexibility before trial is very important,” and he stated, “It’s becoming clearer that this is a rule addressed to the district courts.” Id. at 6. In an attempt further to clarify the rule, Judge Sutton suggested that the subcommittee substitute the word “forfeiture” for “waiver.” Id. After discussion, the subcommittee unanimously rejected, the proposal, because some committee members expressed concern that “forfeiture” “was the language of appellate courts, and the rule was principally directed at the district courts.” Id. at 9. Other subcommittee members also noted “the disagreement in the application of forfeiture in the appellate cases” and “that forfeiture is generally associated with the plain error standard, not the good cause/cause and prejudice standards.” Id. In context, the subcommittee members’ primary" }, { "docid": "10761316", "title": "", "text": "— which deletes the former Rule 12(e) and transfers applicable principles to Rule 12(c)(3) —no longer refers to a “waiver.” When the term “waiver” first appeared in Rule 12(b)(2) in 1944, and then moved to Rule 12(f) in 1975, and still later to Rule 12(e), the term “may have been unremarkable,” 1A Charles Alan Wright et al., Federal Practice and Procedure: Federal Rules of Criminal Procedure § 193 (4th ed.2008), because the Supreme Court had not articulated a clear differen tiation between a “waiver” and a “forfeiture.” See United States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Id. at 733, 113 S.Ct. 1770 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Since Olano, the term “waiver” in the context of Rule 12(e) caused great confusion among circuit courts about how the rule restricts appellate review. Wright et al, supra § 193. Prior to the 2014 rule revision, we were inconsistent as well. Often we treated a party’s failure to file a timely pretrial motion as a “true waiver,” sometimes we considered the failure to file a pretrial motion as a forfeiture subject to plain-error review, sometimes we avoided resolving the proper characterization and conducted plain-error review in the alternative, and sometimes we examined whether the appellant had shown good cause for the failure to file a timely pretrial motion. In an apparent attempt to add some clarity to these muddy waters, the Advisory Committee recently recommended omitting the “non-standard use of the term “waiver’ ” from Rule 12. Advisory Committee on Criminal Rules, Minutes 3 (Apr. 25, 2013) (hereinafter April 25, 2013 Advisory Committee Minutes). The Advisory Committee made clear the reason for the recommended change: New paragraph (c)(3) governs the review of untimely claims, previously addressed in Rule 12(e). Rule 12(e) provided that a party “waives” a defense not raised within the time set under Rule 12(c). Although the term waiver" }, { "docid": "21732891", "title": "", "text": "States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995). . Federal Rule of Criminal Procedure 12 was amended in 2014. Prior to the amendment, Rule 12 stated that party motions not brought prior to the trial court’s deadline were waived. Fed. R. Crim. P. 12(e) (effective until Dec. 1, 2014). In contrast, the new rule states: \"If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely.” Fed. R. Crim. P. 12(c)(3). However, “a court may consider the defense, objection, or request if the party shows good cause.” Id. Rule 12(b)(3) motions include pretrial motions requesting the suppression of evidence. Fed. R. Crim. P. 12(b)(3)(C). This change in wording has prompted some Circuits to conclude that plain error review is proper even in the absence of good cause, while others have opted to review unpre-served Rule 12 issues only upon a showing of good cause. See United States v. Burroughs, 810 F.3d 833, 838 (D.C. Cir. 2016) (collecting cases). Given Santiago’s failure to address this issue, we need not address it here. . Santiago styles his claim as a substantive reasonableness challenge. However, he seems to advance, as well as cite case law in support of, both procedural and substantive reasonableness claims. As a result, we will consider procedural reasonableness to the extent that it has any bearing on his sentence. . Santiago’s total offense level was calculated at twenty-three and he had a criminal history category (\"CHC”) of IV. . In United States v. Cortés-Medina, we recently recognized that our precedents expressed in dicta that a series of arrests may '\"legitimately suggest a pattern of unlawful behavior even in the absence of any convictions.'\" 819 F.3d 566, 570 (1st Cir.2016) (citations omitted). Despite our previous statements, we counseled sentencing courts against relying on this dicta moving forward. Id. Nonetheless, we concluded that in the absence of a prior warning, it was not plain error for the district court to consider the defendant’s arrest record. Santiago failed to advance any argument that the district court impermissibly relied on his arrest record during" }, { "docid": "1340502", "title": "", "text": "use of the term “waives” is arguably at odds with the Supreme Court’s definition of “waiver” in Olano — the “intentional relinquishment or abandonment of a right.” Olano, 507 U.S. at 733, 113 S.Ct. 1770. Per this argument, failure to comply with Rule 12 could be seen as more akin to a forfeiture — an inadvertent “failure to make the timely assertion of a right” — that would result in plain error review rather than a waiver. Id. Rule 12’s history, however, indicates that its text means what it says. As previously noted, in 1974 the Rules were changed to require — with an explicit threat of waiver — that motions to suppress be raised prior to trial in accordance with the district court’s desired timetable. In 2002, well after Olano, the waiver provision of section (f) was moved to section (e) and its text was revised, but the Advisory Committee kept the term “waiver” in place. See Fed.R.Crim.P. 12 advisory committee’s note to 2002 amendments. Had the drafters thought that term outdated in light of Olano or other precedent, they could have changed the term to “forfeiture,” but they did not. Moreover, we join the Fifth Circuit’s conclusion in Chavez-Valencia that policy considerations support a waiver approach. See 116 F.3d at 131-32. Allowing a defendant to raise a suppression issue for the first time on appeal absent good cause carries substantial costs that are not outweighed by any attendant benefits. If a defendant has not raised a suppression issue before the district court, the Government (under an assumption that its proffered evidence was admissible) may plausibly conclude during trial that it does not need to accumulate and introduce additional evidence to prevail. Id. at 132. Moreover, on appeal the Government has lost its chance to introduce valuable evidence in opposition to the suppression motion. See id. And we agree with the Chavez-Valencia Court that a choice of plain error review over a waiver approach would do little, if anything, to further the deterrent effect of the exclusionary rule. See id. at 132. The parties spend much time discussing our" }, { "docid": "3753205", "title": "", "text": "a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). If a party waives an argument in the,district court, we will not review it on appeal. See United States v. Pacchioli, 718 F.3d 1294, 1307 (11th Cir. 2013). But if an argument is forfeited because it had not been timely raised in the district court, we generally will review it for the first time on appeal, but only for plain error. See Olano, 507 U.S. at 731, 113 S.Ct. 1770 (holding that the plain error standard of review applies to “errors that were forfeited because not timely raised in district court”). Under the version of Rule 12 that was in effect at the time of the defendant’s trial, Gonzalez was required to raise any non-jurisdictional challenges to her indictment prior to trial, and the failure to do so waived all appellate review. See Pacchioli, 718 F.3d at 1307. Under that version of Rule 12, Gonzalez’s failure to object to the indictment before trial would have waived any challenge to her convictions as multi-plicitous, meaning that she would be barred altogether from raising that challenge on appeal. Id. at 1308. But after Gonzalez’s trial, Rule 12 was amended to provide that a failure to raise a challenge to an indictment prior to trial results in forfeiture, not waiver, of the challenge. See United States v. Sperrazza, 804 F.3d 1113, 1118-19 (11th Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 2461, 195 L.Ed.2d 800 (2016). The current version of Rule 12 then, which went into effect on December 1, 2014, still provides that a defendant must raise a challenge to an indictment prior to trial. See Fed. R. Crim. P. 12(b)(3)(B). But Rule 12 now also provides that the failure to raise a pre-trial challenge to the indictment only renders the motion “untimely.” See Fed. R. Crim. P. 12(c)(3). Thus, if the new version of Rule 12 applies" }, { "docid": "20701803", "title": "", "text": "raise an issue in a pretrial motion, formerly found in Rule 12(e), was relocated to Rule 12(c)(3), effective December 1, 2014. The reference to “waiver” was removed to clarify that the rule does not contemplate waiver as that term is traditionally used in criminal cases. Fed. R. Crim. P. 12(c) advisory committee's note. Because the amendment did not alter the applicable standard, we apply the current version of Rule 12. See United States v. Bennett, 332 F.3d 1094, 1100 n. 2 (7th Cir.2003). . The court of appeals analyzes the good-cause determination for abuse of discretion, because \"the good-cause decision is committed to the district court.” Acox, 595 F.3d at 732. When confronted with a motion that was not presented to the district court, we ask whether the district court would have abused its discretion had it denied a request to present an untimely motion. Id. Where, as here, the defendant has not articulated any rationale that would support a good-cause determination, the district court would not have abused its discretion by refusing to consider an untimely motion. Id. at 733. . Although McMillian also argues that consent was tainted because his arrest was illegal, we have concluded that he has forfeited his challenge to the arrest. . To determine whether consent was tainted, a court considers \"(1) the temporal proximity of the illegal entry and the consent, (2) the presence of intervening circumstances, and, particularly, (3) the purpose and flagrancy of the official misconduct.” Robeles-Ortega, 348 F.3d at 681 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). . Judge Clevert did not expressly rule on the question of probable cause to search for weapons, although he determined that the officers acted in good faith despite any deficiencies in the search warrant." }, { "docid": "3753206", "title": "", "text": "review. See Pacchioli, 718 F.3d at 1307. Under that version of Rule 12, Gonzalez’s failure to object to the indictment before trial would have waived any challenge to her convictions as multi-plicitous, meaning that she would be barred altogether from raising that challenge on appeal. Id. at 1308. But after Gonzalez’s trial, Rule 12 was amended to provide that a failure to raise a challenge to an indictment prior to trial results in forfeiture, not waiver, of the challenge. See United States v. Sperrazza, 804 F.3d 1113, 1118-19 (11th Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 2461, 195 L.Ed.2d 800 (2016). The current version of Rule 12 then, which went into effect on December 1, 2014, still provides that a defendant must raise a challenge to an indictment prior to trial. See Fed. R. Crim. P. 12(b)(3)(B). But Rule 12 now also provides that the failure to raise a pre-trial challenge to the indictment only renders the motion “untimely.” See Fed. R. Crim. P. 12(c)(3). Thus, if the new version of Rule 12 applies to Gonzalez’s double jeopardy challenge, her challenge is forfeited, rather than waived, and we may review it for plain error. See Sperrazza, 804 F.3d at 1119. The Supreme Court’s order amending Rule 12 provides that the 2014 amendment “ ‘shall take effect on December 1, 2014, and shall govern in all proceedings in criminal cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.’ ” Id. at 1120 (quoting Proposed Amendments to the Federal Rules of Criminal Procedure, 572 U.S. (Apr. 28, 2014)). Thus, we apply the new version of Rule 12 to Gonzalez’s double jeopardy claim because she still has a pending proceeding (namely, this appeal), neither party argues that it would be unjust or impractical to apply the new rule, and we can see no reason not to apply the new rule. See id. at 1121. Under the new version of the rule, then, her challenge is forfeited rather than waived. See id. Accordingly, we review for plain error Gonzalez’s claim that Counts 1 and 2 of the indictment and" }, { "docid": "10761324", "title": "", "text": "relinquishment of a known right, Rule 12(e) has never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request that was not raised in a timely fashion.”). Thus, the drafters apparently believed the term “waiver” was “outdated in light of Olano,” and therefore “changed the term” to give the rule new meaning. See United States v. Rose, 538 F.3d 175, 183 (3d Cir.2008) (relying on the failure to revise Rule 12(e) to eliminate the term “waiver” in 2002, after Olano, when Rule 12(f) was moved to Rule 12(e) and other revisions were made); see also Walker, 665 F.3d at 228 (“We believe that Rule 12(e) says what it means and means what it says ... particularly since Congress amended it in 2002 (after the Supreme Court had made the distinction between waiver and forfeiture pellucid) and left the ‘waiver’ terminology intact.”). The Advisory Committee’s conscious decision to abandon the term “waiver” makes its intent crystal clear: courts may no longer treat a party’s failure to file a timely Rule 12(b)(3) pretrial motion as an intentional relinquishment of a known right. The more difficult question is whether the change to Rule 12(c)(3) means that we may review Santana’s claim for plain error. Santana argues that the good-cause standard applies to district courts, and therefore appellate courts are free to consider how the change in the rule impacts appellate review. Santana Resp. to Pet. for Rehr’g at 2. As always, we begin with the text of the rule, keeping in mind that “reasonable [rule] interpretation must account for ‘both the specific context in which language is used’ and ‘the broader context of the statute as a whole.’ ” Util. Air Regulatory Grp. v. EPA, — U.S. -, 134 S.Ct. 2427, 2442,189 L.Ed.2d 372 (2014) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)) (alteration omitted). Federal Rule of Criminal Procedure 1(a)(1) provides that “[t]hese rules govern the procedure in all criminal proceedings in the United States district courts, the United States courts of" } ]

[ { "docid": "4730808", "title": "", "text": "re Baldwin-United Corp., 79 B.R. 321, 337 (Bktcy.S.D.Ohio 1987) (a limited reading is “out of step with the realities” and unrealistic especially in light of the newly enacted damage provisions in 11 U.S. C. § 303(i)); In re Rorabaugh, 62 B.R. 623, 627-28 (Bktcy.D.Kan.1986) (allowing compensation for work involved in the initiation of the involuntary bankruptcy case and for work performed by counsel in substantial efforts made during the bankruptcy case, including preparation of schedules and the statement of affairs of the debtor when debtor was unable to do so). See also 3 Collier on Bankruptcy ¶ 503.04[4] (L. King 15th ed. 1988) (the professional services contemplated by section 503(b)(4) are those “leading to the entry of an order for relief in a liquidation case under chapter 7”). The more reasoned approach in a case such as this is to allow fees and costs incurred by the petitioning creditor for work directly related to the preparation of the petition and, if there is opposition, to reasonable and necessary efforts to pursue the petition to successful conclusion by entry of the order for relief. Such a reading is consistent with the concept that the purpose of allowing the petitioning creditors their attorneys fees and costs is to encourage them to successfully bring the debtor into court so that there may be equitable marshalling and distribution of its assets before they are squandered by the debtor. See, e.g., In re J.V. Knitting, 22 B.R. at 545. I next reach thé questions of whether the expenses of the Bank and Gray, Plant were actual and necessary and whether the fees of Gray, Plant are “reasonable ... based on the nature, the extent and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title ....” 11 U.S.C. § 330. Even though no party has a continuing objection to the Bank’s application, I have an obligation to review it with these criteria in mind. See, e.g., In re Nucorp Energy, Inc., 764 F.2d 655, 658 (9th Cir.1985); In re First" } ]

[ { "docid": "11441024", "title": "", "text": "has already decided the section 326 issue in its Order Granting Trustee’s Motion for Partial Summary Judgment. Regardless, the payments made were sufficient to pay SCB and ELLCO the agreed amounts of their compromised claims, to pay the Trade claims in full, to pay all of the costs of administration of the chapter 11 and the chapter 7 and, if the Trustee’s fee is paid in full, to return a total of $9,735 million to the debenture holders. For his services, Mr. Connolly seeks a fee of $3,044,953, which is the maximum that could be allowed under section 326. Both Harris and the U.S. Trustee (collectively referred to as the “Objectors”) object. II. THE LEGAL STANDARDS FOR FEE ALLOWANCE. The Trustee in this case seeks compensation under sections 326 and 330 of the Code. The version of section 330 which applies to this case provides: After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, ..., the court may award to a trustee, ... (1) reasonable compensation for actual, necessary services rendered by such trustee, ... and by any paraprofessional persons employed by such trustee, ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. The applicable section 326 provides: (a) In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, and three percent on any amount in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. The Trustee urges an interpretation of the those two sections which would" }, { "docid": "8271162", "title": "", "text": "(even though the debtor’s counsel is not a professional appointed to represent the bankruptcy estate): In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. 11 U.S.C. § 330(a)(4)(B). The procedure for allowance of compensation is set forth in Fed. R. Bankr.P. 2016(a). Under Rule 2016(a), counsel must “file an application setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.” Fed. R. Bankr.P.2002(a)(6) provides that at least twenty (20) days notice must be provided for any hearing on a request for compensation in excess of $1,000.00. Typically, applications for compensation must include an itemization of the time expended by the applicant. E.g., In re Smith, 331 B.R. 622, 633 (Bankr.M.D.Pa.2005) (citing In re Fry, 271 B.R. 596, 602 (Bankr.C.D.Ill.2001)). In this district, the procedures of Fed. R. Bankr.P.2016(a) are supplemented by local rules. Local Bankruptcy Rule (“LBR”) 2016-1, sets forth certain procedures for service, notice and disposition of counsel fee applications. LBR 2016-2 also authorizes a summary procedure for certain fee applications in chapter 13 cases. Specifically, if counsel’s total request for compensation (i.e., the sum of the prepetition retainer and the amount requested to be disbursed by the chapter 13 trustee) is $2,000.00 or less, the local rules authorize counsel to file a “short form” fee application, which requires only a description of services and a statement of the total amount of time expended. Id. This summary process is commonly referred to as “no-look” counsel fees. See generally In re Smith, 331 B.R. at 629-30 (discussing policy benefits and dilemmas created by use of “no-look” methodology in allowing compensation, including the need to establish appropriate fee levels for normal and customary services and a procedure for allowing compensation in cases involving reasonable and necessary services that" }, { "docid": "8887425", "title": "", "text": "Harrison-burg on June 22,1987, involving four hours of travel time at her hourly rate of $45.00 per hour. Finally, Ms. Foutz made a trip on June 22, 1987, involving one and a half hours to an undisclosed location. With respect to attendance at court hearings, the fee Application reveals that both Ms. Morana and Ms. Pinchbeck attended the creditors’ meeting with Mr. Beck on June 12,1987. No explanation was offered at hearing on the fee Application as to the necessity for the attendance by both individuals. The fee Application reveals extensive conferences within the firm among partners and associates concerning matters pertaining to the reorganization. However, no explanation has been offered as to the utilization of a particular expertise of any partner or associate in the firm which is of extraordinary value to the debtors or unique to a particular aspect of the case. These eases are relatively large Chapter 11 reorganization proceedings and counsel has estimated to his client and represented to this court at the fee Application hearing that the total fees in the combined cases could approach $100,000.00. The initial fee Application has surfaced a number of issues concerning the allowability of fees and these issues have been addressed by various bankruptcy courts in other parts of the United States. Law Section 331 of the Bankruptcy Code permits counsel for the debtor in possession to apply for interim compensation at least every 120 days after an order for relief in a case has been entered or more often if the court permits. As indicated above, by Order dated September 1, 1987, this court has approved a procedure which would permit counsel to apply on a monthly basis for allowance of fees. 11 U.S.C. § 330 provides the statutory basis for allowance of compensation of the debtor’s attorney. It provides as follows: (1) Reasonable compensation for actual, necessary services rendered by such ... attorney, and by any paraprofessional persons employed by such ... attorney, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services" }, { "docid": "19117892", "title": "", "text": "any type of fee cap at issue in these cases. The bankruptcy court never placed any absolute limit on Geraci’s fees; it instead required him to provide the court with an itemization of the services provided whenever his fee exceeds the presumptively reasonable amount. Chellino, 209 B.R. at 124-25. Given the number of routine, no-asset consumer cases handled by someone like Judge Fines, it is not an abuse of discretion for the court to set a presumptively reasonable fee and then to require documentation to substantiate a fee in excess of that amount. As one leading bankruptcy commentator explained it: A review of attorney’s compensation is most appropriate in a nonbusiness or a consumer case under the Code. Local rules may place a presumptive limit on the amount of fees to be paid to the debtor’s attorney for filing a consumer chapter 7 and chapter 13 ease. By setting a standard maximum fee, courts seek to save time both for themselves and for debtors’ attorneys in cases that are routine and quite similar to each other. Often, based on the [sic] their knowledge of the amount of time and effort necessary for a routine case, courts allow debtors’ attorneys’ fees within the standard maximum without requiring a detailed accounting of time spent. However, an attorney always has the right to demonstrate that additional fees should be awarded if the standard fee does not compensate the attorney fully for the time expended in the ease on an hourly basis. Typically this will occur in cases that are more complex or require more time than the average case. Collier on Bankruptcy ¶ 329.04[1][a], at 329-16 & 329-17. To the extent Geraci suggests that the bankruptcy court’s order applies only to him and not to other bankruptcy practitioners appearing before Judge Fines, the record indicates otherwise. Although the opinion and order entered in these cases refers only to Geraci, the record suggests that Judge Fines utilizes the same presumptively reasonable fee in all similar eases on his docket. In fact, counsel for the United States Trustee told us at oral argument that the" }, { "docid": "8271163", "title": "", "text": "re Fry, 271 B.R. 596, 602 (Bankr.C.D.Ill.2001)). In this district, the procedures of Fed. R. Bankr.P.2016(a) are supplemented by local rules. Local Bankruptcy Rule (“LBR”) 2016-1, sets forth certain procedures for service, notice and disposition of counsel fee applications. LBR 2016-2 also authorizes a summary procedure for certain fee applications in chapter 13 cases. Specifically, if counsel’s total request for compensation (i.e., the sum of the prepetition retainer and the amount requested to be disbursed by the chapter 13 trustee) is $2,000.00 or less, the local rules authorize counsel to file a “short form” fee application, which requires only a description of services and a statement of the total amount of time expended. Id. This summary process is commonly referred to as “no-look” counsel fees. See generally In re Smith, 331 B.R. at 629-30 (discussing policy benefits and dilemmas created by use of “no-look” methodology in allowing compensation, including the need to establish appropriate fee levels for normal and customary services and a procedure for allowing compensation in cases involving reasonable and necessary services that are non-routine). On its face, LBR 2016-2 merely dispenses with the chapter 13 debt- or’s counsel obligation to submit time records with a fee application. In practice, LBR 2016-2 may create a presumptively reasonable counsel fee amount for those chapter 13 cases that achieve the entry of a confirmation order. The next relevant statutory provision is 11 U.S.C. § 503(b)(2). Section 503(b)(2) provides that after notice and hearing, the court may allow administrative expenses, including “compensation and reimbursement awarded under section 330(a) of this title.” Thus, compensation allowed to the debtor’s counsel in a chapter 13 bankruptcy case is an administrative expense allowable under 11 U.S.C. § 503(b), even though counsel is not appointed by the court and represents the interests of the debtor, rather than the interests of the bankruptcy estate. Compare Lamie v. U.S. Trustee, 540 U.S. 526, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (counsel for chapter 7 debtor not entitled to compensation under 11 U.S.C. § 330 unless counsel is employed pursuant to 11 U.S.C. § 327). Finally, there are two" }, { "docid": "1131649", "title": "", "text": "requested fees of $1,000 at confirmation of which $500 was awarded at that time. Counsel subsequently requested an additional $470. The original order in the file indicates that only $250 of this amount was awarded. However, it appears that through a clerical error in the court clerk’s office the true copy returned to the Firm for service did not reflect the reduction in fees. Therefore, the chapter 13 Trustee paid the Firm the full $470 requested. The court has taken no action to rectify this situation nor does it intend to do so, given subsequent events. A copy of the Firm’s retainer agreement was attached to the petition and schedules filed in this case in which the debtor agreed to pay the Firm for attorney services at a billable rate of $100 per hour. As matters stand the Firm has been allowed and has been paid $970.00. On April 1, 1993 the Firm filed a third fee application seeking an additional $370 in fees. No objections were filed to the April 1, 1993 application; therefore no hearing was scheduled. The fee application with attached itemization and the bankruptcy court file were examined by the court and the proposed fee order requesting additional fees was denied in the court’s April 8, 1993 order. Accompanying that Order was the court’s April 8, 1993 letter explaining the reason for the disal-lowance of the fees. That letter relied upon counsel’s representation that a total of $970, rather than $750, had been allowed to that point in time. Interestingly enough, this court concluded that an award of total fees in the amount of $750 would have been appropriate: Pursuant to the new guidelines which the Chapter 13 Trustees will be employing in their review of Debtor’s attorney fees, and consistent with the standard that attorney fees be reasonable, the legal fees for this case should have been no more than $750. Having already received $970, however, you are not entitled to even more fees. April 8, 1993 letter to Attorney Greg Smith. The guidelines used by the chapter 13 trustees essentially embody the “lodestar” factors" }, { "docid": "13934969", "title": "", "text": "cost of operating overhead are not properly chargeable to the bankruptcy estate. Id. The court notes that the future of the instant debtor is uncertain. This interim application covers the first six (6) months of the debtor’s existence, and the debtor’s counsel’s aggregate interim fee requests approximate Two Hundred Thousand Dollars ($200,000.00). While there is no Bankruptcy Code mandate that a hold-back be imposed in every case, the court has discretion to impose a holdback in appropriate cases. In re Wilson Foods Corp., 36 B.R. 317 (Bankr.W.D.Okla.1984). In the instant situation, the court deems that a 25% holdback is appropriate, and in the best interest of the estate. Therefore, interim compensation of 75% will be awarded, and expenses will be allowed in full. Inasmuch as this is an interim application, the court reserves any determination on reasonableness, duplication, travel time, and other issues raised in United States Trustee’s objection until the final fee application. Therefore, the 75% interim compensation and expenses allowed are, however, subject to the proviso that the court may allow final compensation different from the prior aggregate interim awards if such interim awards subsequently prove to have been improvident in light of the totality of all the facts and circumstances. That is, the attorneys for the debtor may have to reimburse the chapter 11 estate if the interim awards ultimately prove to have been improvident. See, e.g. In re Burlington Tennis Associates, 34 B.R. 839 (Bankr.Vt.1983). CONCLUSION Based on the above, interim fees in the amount of One Hundred Fifteen Thousand Six Hundred Fifteen Dollars ($115,615.00) will conditionally be allowed, but a 25% holdback is imposed. Actual expenses of Thirteen Thousand Eighty-two Dollars Ninety-three Cents ($13,082.93) are allowed, with the provision that they may be subject to further reduction and/or disal-lowance when the final application is filed. The objections of the United States Trustee, which are well founded, are reserved until the final fee application. Attorneys fees and expenses are governed by 11 U.S.C. § 503, and are entitled to payment from the estate as a priority administrative expense. IT IS SO ORDERED. . 28 U.S.C. §" }, { "docid": "1131650", "title": "", "text": "no hearing was scheduled. The fee application with attached itemization and the bankruptcy court file were examined by the court and the proposed fee order requesting additional fees was denied in the court’s April 8, 1993 order. Accompanying that Order was the court’s April 8, 1993 letter explaining the reason for the disal-lowance of the fees. That letter relied upon counsel’s representation that a total of $970, rather than $750, had been allowed to that point in time. Interestingly enough, this court concluded that an award of total fees in the amount of $750 would have been appropriate: Pursuant to the new guidelines which the Chapter 13 Trustees will be employing in their review of Debtor’s attorney fees, and consistent with the standard that attorney fees be reasonable, the legal fees for this case should have been no more than $750. Having already received $970, however, you are not entitled to even more fees. April 8, 1993 letter to Attorney Greg Smith. The guidelines used by the chapter 13 trustees essentially embody the “lodestar” factors discussed below. An appropriate order was docketed on April 9, 1993. On April 19, 1993, the Firm filed its notice of appeal with this court. The fee request in Rapp arose under somewhat different circumstances. On June 24, 1992 the order confirming the chapter 13 plan and providing for $1,000 in fees was signed. As is customary in this District, no supporting itemization was provided, although a copy of the Firm’s retainer agreement was also attached to the petition and schedules filed in this case. In this matter, however, the billable rate was $125 per hour. On March 8, 1993 the Firm requested additional fees in the amount of $659.78. Objections to this request were filed by both Creditor Chrysler Credit Corporation and the Office of the U.S. Trustee. By the time of the April 7 hearing Chrysler Credit’s objections had been resolved, leaving only those objections filed by the U.S. Trustee. Arguments were made by Assistant U.S. Trustee Casamatta and Mr. Smith appearing on behalf of the Firm. The Firm filed no response to" }, { "docid": "13934970", "title": "", "text": "different from the prior aggregate interim awards if such interim awards subsequently prove to have been improvident in light of the totality of all the facts and circumstances. That is, the attorneys for the debtor may have to reimburse the chapter 11 estate if the interim awards ultimately prove to have been improvident. See, e.g. In re Burlington Tennis Associates, 34 B.R. 839 (Bankr.Vt.1983). CONCLUSION Based on the above, interim fees in the amount of One Hundred Fifteen Thousand Six Hundred Fifteen Dollars ($115,615.00) will conditionally be allowed, but a 25% holdback is imposed. Actual expenses of Thirteen Thousand Eighty-two Dollars Ninety-three Cents ($13,082.93) are allowed, with the provision that they may be subject to further reduction and/or disal-lowance when the final application is filed. The objections of the United States Trustee, which are well founded, are reserved until the final fee application. Attorneys fees and expenses are governed by 11 U.S.C. § 503, and are entitled to payment from the estate as a priority administrative expense. IT IS SO ORDERED. . 28 U.S.C. § 157(b)(2)(A). . Debtor’s counsel, in its first interim fee application, reserved the right to include additional appropriate fees. . This memorandum opinion does not finally resolve the United States trustee’s objections, which are reserved until the final fee application. .§ 331. Interim compensation. A trustee, an examiner, a debtor’s attorney, or any professional person employed under section 327 or 1103 of this title may apply to the court not more than once every 120 days after an order for relief in a case under this title, or more often if the court permits, for such compensation for services rendered before the date of such an application or reimbursement for expenses incurred before such date as is provided under section 330 of this title. After notice and a hearing, the court may allow and disburse to such applicant such compensation or reimbursement." }, { "docid": "4655973", "title": "", "text": "creditor. Unsecured claims were allowed in the total amount of $54,714 but no dividend was paid because insufficient funds remain in the estate even to compensate the trustee and counsel fully. Debtor’s counsel requested $750 for filing this case. Trustee’s counsel requested $540. The Trustee’s maximum commission is $159. Such maximum assumes sufficient assets remain to pay all fees and expenses in full, which in this case will not occur. Statutory Analysis Compensation of Chapter 7 trustees for services, and reimbursement of the trustees’ expenses, are governed by 11 U.S.C. § 330. Compensation is subject, however, to the limitation contained in 11 U.S.C. § 326. The relevant Code sections, in pertinent part, are set out below: 11 U.S.C. § 330. Compensation of Officers. (a) After notice to any parties in interest and to the United States trustee and a hearing, ... the court may award to a trustee, ... (1) reasonable compensation for actual, necessary services rendered by such trustee, ... and by any paraprofessional persons employed by such trustee, ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a)(1) and (2) (emphasis added). 11 U.S.C. § 326. Limitation on Compensation of Trustee. (a) In a case under chapter 7 or 11, the court may allow reasonable compensa tion under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, and three percent on any amount in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. 11 U.S.C. § 326. The U.S. Trustee has not cited us to, nor are we aware of, any legislative history which amplifies the language of" }, { "docid": "6612872", "title": "", "text": "basis that the Debtor’s estate was not benefitted. In fact, Citibank suggests that many of the services were for the benefit of the five corporate estates. Moreover, Citibank objects to some of the post-petition services as they are allegedly duplicative of the work performed by Raleigh and his counsel. Citibank concludes that $43,441.70 would be an appropriate allowance for compensation, and concurs with Raleigh’s recommended expense reimbursement of $6,294.20. Citibank does not object to the fees charged by the Applicant for pre-petition services, although it suggests that only $80,859.89 should be allowed for that period. The U.S. Trustee objects to the fee application as a whole based upon a lack of benefit to the estate, with the exception of categories nine and thirteen. The U.S. Trustee suggests that the Applicant’s services have hindered the administration of the case and have been superfluous. Moreover, the U.S. Trustee suggests that any compensation allowed be reduced five percent. This reduction is recommended due to the Applicant’s billing practice of minimum .25 hour increments, rather than in tenth of an hour increments, contrary to the local custom and practice followed by the Court. Furthermore, the U.S. Trustee recommends an additional ten percent reduction of fees because the Applicant failed to properly advise the Debtor of his duties under 11 U.S.C. § 521(4) and Bankruptcy Rule 4002(3). The U.S. Trustee objects to the application of the $10,000.00 additional retainer to any criminal work rendered by the Applicant because the statement disclosing the compensation paid referred only to civil bankruptcy work. The U.S. Trustee objects to the reimbursement of expenses in toto. The U.S. Trustee recommends an allowance of $33,019.75 for post-petition compensation and does not object to the fees charged for the pre-petition work. The several objectors, especially Raleigh and Citibank, provided very detailed and specific objections. Rarely does the Court receive from the professionals who are intimately involved and familiar with a case, such particular and defined recommendations with actual dollar amounts specified. Under the Bankruptcy Code, the Court is removed from the case with regard to most administrative matters, but ironically, is required" }, { "docid": "13934966", "title": "", "text": "of circumstances must be considered. In a major case with multiple attorneys involved, some conferencing is essential, however, reductions or disallowances of fees may result in the case of excessive conferencing. In re Wiedau’s, Inc., 78 B.R. 904 (Bankr.S.D.Ill.1987); In re Pettibone, Inc., 74 B.R. 293 (Bankr.N.D.Ill.1987); See also, In re Mansfield Tire & Rubber Co., 65 B.R. 446 (Bankr.N.D.Ohio 1986). Further, where multiple attorneys attend hearings and conferences, there must be a showing that each attorney contributes to the hearing or proceeding. In re Wabash Valley Power Assn., Inc., 69 B.R. 471 (Bankr.S.D.Ind.1987). DUPLICATION In complex cases, there will inevitably be some duplication. While it is difficult for the court to second guess how much of the activity is unnecessary duplication, some standards must be applied to protect the estate. Although some duplication was anticipated at the commencement of the case, less should be required as the case progresses. The court in Matter of Pothoven, 84 B.R. 579, 583 (Bankr.S.D.Iowa 1988) held: “Generally, attorneys should work independently, without the incessant ‘conferring’ that so often forms a major part of many fee petitions”. In re Pettibone Corp., 74 B.R. at 303; In re Amatex Corp., 70 B.R. [624,] at 626 [ (Bkrtcy.E.D.Pa.1985) ]. The bankruptcy estate should not bear the cost of compensating each attorney present at an intra-office conference unless counsel can show that the estate benefitted from each attorney’s special area of expertise. In the absence of a showing of the purpose of the conference and why the conference was essential to efficient management of the case, this court will not award full compensation to each attorney present at the conference. In re Amatex Corp., 70 B.R. at 626. The same reasoning applies to duplicative court appearances. Id. See also, In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 583 (Bankr.D.Utah 1985). When more than one attorney appears in court, no fee or a reduced fee should be sought for non-participating counsel. This court will examine the frequency and length of duplicative services in individual cases to determine whether a reduction in compensation sought is appropriate, (citation omitted). TRAVEL" }, { "docid": "6612882", "title": "", "text": "It suggests an award of only $7,326.00. The Applicant, as counsel to the Debtor, engaged in numerous conferences and telephone calls with not only Raleigh, his counsel, and various creditors’ counsel, but also the trustee for the corporate cases and his counsel. Due to the fact that the Debtor was the sole equity holder in the corporate cases and was asserting his Fifth Amendment privilege, substantial amounts of conferencing was both necessary and reasonable given the need for discovery and information sought by all interested parties. The trustee for the corporate cases has filed claims for those estates in the instant case, as have the objectors. Thus, communications between the Applicant and the trustee in the corporate cases and his professionals, at least indirectly related to, and had some impact on the Debtor’s estate. Due to the close interrelationship among the estates, it would be unnecessarily harsh to disallow reasonable compensation for the Applicant’s time spent with the corporate trustee and his professionals, in light of the Applicant’s voluntarily reduction in this category which covers the non-compen-sable time relating to criminal defense matters. Accordingly, the Court will allow the reduced fees sought in this category in the sum of $8,340.75. 5. Category Five The Applicant seeks $18,793.50 in fees for time expended reviewing and assembling voluminous documents. Raleigh has objected to some of the fees on the basis that the time relates to meetings with the Debtor’s criminal counsel as well as assisting him in reviewing and analyzing the Debtor’s records. Additionally, Raleigh objects to the award of fees for services rendered after the Applicant’s withdrawal on September 18, 1989, other than services provided in connection with the preparation of the fee application. Raleigh recommends an award of $14,265.90. Citibank has objected to the fees under this category on the basis that the Applicant failed to apportion the fees among the several estates as Citibank claims that some of the services benefitted the corporate cases. Similarly, Citibank recommends an award of $14,265.90. The U.S. Trustee objects to the award of any compensation in this category. He argues that these services" }, { "docid": "6519953", "title": "", "text": "of by only the higher or highest paid attorney), “blocked” time (billing several services together in one multi-hour block of time without breaking down the time spent on the individual services, making it difficult to determine whether the services were reasonable and necessary), travel time (billing for local travel time) and fee application time (billing for time spent preparing time sheets and fee applications). With regard to the billing statement of HSJ & C, the Trustee notes charges for local travel time, time spent eating lunch, and fee application time. Furthermore, documentation and detailed statements of services rendered by HSJ & C and PM & T are inadequate, says the Trustee, echoing the Court’s previously stated view. After conferring with the Trustee pursuant to the request of this Court, DD & S has voluntarily agreed to reduce its requested fees by the following amounts: Intra-Office Conferences: $244.00 “Blocking”: 427.00 Travel Time: 225.00 Pee Application Time: 250.00 $1,146.00 The Court approves of these voluntary reductions, which appear in greater detail in a “Stipulation Between United States Trustee and Vinco, Inc. Concerning Attorney’s Fees and Costs” filed in the record. CONCLUSION Section 506(b) of the Code represents a compromise between two competing policies. The subsection’s reasonableness requirement fosters the rehabilitative policy of chapter 11 by preventing an oversecured creditor from opposing a debtor’s reorganization “without regard to the probability of success on the merits at the debtor’s expense.” Matter of Nicfur-Cruz Realty Corp., 50 B.R. 162, 174 (Bankr.S.D.N.Y.1985). On the other hand, section 506(b) unquestionably champions the policy in favor of giving the oversecuréd creditor “the benefit of his bargain.” 3 Collier on Bankruptcy 11506.05, at 506-49 (15th ed. 1986). In In re American Metals Corp., 31 B.R. 229 (Bankr.D.Kan.1983), the court allowed an oversecured creditor’s fee claim in full because it was reasonable under section 506(b). The services provided by the creditor’s attorney were numerous. Among other things, counsel contested the debtor’s motions to use cash collateral and to extend the time in which to file a plan, sought the appointment of an examiner, defended against the debtor’s $350,000.00 breach of" }, { "docid": "7654685", "title": "", "text": "reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. The leading case in this circuit regarding fee awards for debtors’ attorneys is Cle-ware Industries v. Sokolsky, 493 F.2d 863 (6th Cir.1974). As enumerated therein (in the context of a reorganization case), the services which are normally compensable from the estate include the following: [T]he preparation and filing of the schedules and statement of affairs, the petition for arrangement and all other applications and orders which were required except those relating to the operation of the business; appearances on behalf of the debtor in court proceedings; attendance at meetings of creditors to consider the proposed arrangement; preparation of the application and order for confirmation and attendance at hearings thereon; offering of the required proof of the “feasibility” of the arrangement and that it was in the best interests of creditors; and representation of the debtor in other hearings involving the adoption of the arrangement. Cle-ware Industries v. Sokolsky, 493 F.2d at 876. The services summarized in category “A” of the instant application are compen-sable under the Cle-ware standard and the cases interpreting § 330 of the Code. The time in this category involved assisting the debtor in performing duties required under Chapter 7. The time invested in these efforts appears reasonable and necessary in connection with the administration of this estate. See In re Zweig, 35 B.R. 37 (Bankr.N.D.Ga.1983); In re Olen, 15 B.R. 750, 8 BANKR.CT.DEC. (CRR) 555, 5 COLLIER BANKR.CAS.2d (MB) 944 (Bankr.E. D.Mich.1981); 2 L. KING, COLLIER ON BANKRUPTCY II 330.04[3] (15th ed. 1984). Normally, in a Chapter 7 case, the trustee has the duty to examine proofs of claim and to object when appropriate. 11 U.S. C.A. § 704(4)(5)" }, { "docid": "6574260", "title": "", "text": "330(a)(4)(A)(ii). “A bankruptcy court, even though it has approved employment under § 327, must once again review any application for compensation.” Engel, 124 F.3d at 571. “This two-step process — i.e., appointment under § 327 and then compensation under § 330, if and only if, ‘benefit-to-the-estate’ is found — was adopted by Congress to eliminate ‘abuses and detrimental practices’ attributable to ‘attorney control of bankruptcy cases.’ ” Id. at 572 (citing Arkansas, 798 F.2d at 649). In an unpublished opinion, District Judge Bissell recently concluded “that the appointment of a [chapter 11] trustee does not completely obviate the need for a debtor’s attorney, given the trustee’s exclusive, statutorily-defined duties, the Court agrees with the Xebec court that a debtor’s attorney should have to prove some actual, distinct benefit before fees should be allowed.” In re Top Grade Sausage, Inc., No. 99-393(JWB), at 24. See also, In re Sounds Distrib. Corp., 122 B.R. 952, 955 (Bankr.W.D.Pa.1991) (counsel to debtor is. not entitled to compensation from estate assets for services that do not directly benefit the estate); Friedman v. Melp, Ltd. (In re Melp, Ltd.), 179 B.R. 636, 640 (E.D.Mo.1995) (debtor’s attorney may recover fees after appointment of an operating trustee, but only if services provided a benefit to the estate). But if no benefit was conferred on the estate, no allowance will be granted. A “bankruptcy judge d[oes] not have the authority to disregard the ‘benefit-to-the-estate’ requirement of § 330.” Engel, 124 F.3d at 576. Services no matter how “well intentioned, are not compensable from the estate if they deliver no corresponding benefit in the form of value to the estate or in reduction of administrative expenses by obviating the need for Trustee services,” Pine Valley Mach., 172 B.R. at 488. One court has adopted a per-se rule prohibiting allowance to debtor’s counsel for legal services rendered to the debtor after the appointment of a chapter 11 trustee. NRG Resources, 64 B.R. at 647-48 (debtor’s attorney is prohibited from receiving compensation after chapter 11 trustee has been appointed because debtor’s attorney can serve no beneficial purpose for the estate, unless properly" }, { "docid": "9565135", "title": "", "text": "MEMORANDUM AND ORDER WILLIAM A. KING, Jr., Bankruptcy Judge. In this Chapter 11 reorganization case, the law firm of Pepper, Hamilton & Scheetz is counsel to the debtor-in-possession. Counsel has filed an application for interim compensation pursuant to 11 U.S.C. § 331, requesting an interim fee award of $110,730.25 for 1,147 hours of legal services performed for the debtor-in-possession from November 1, 1982 through April 30, 1983, and reimbursement of costs in the amount of $7,911.59. Upon review of the application in accordance with the established caselaw governing awards of counsel fees, we have deducted $15,590.00 from the amount requested, for a net fee award of $95,140.25. No allowance will be made for expenses at this time. The reasons for the reduction in the fee are set forth below. In order to show why the Court finds certain entries in the application unacceptable, we have categorized the disallowed entries into six (6) categories. Counsel will have an opportunity to further amend those entries which are being disallowed for lack of specific information. A. INTRA-OFFICE CONFERENCE TIME Section 330 of the Code provides that the Court shall allow compensation to a professional person only for actual and necessary services rendered. The advice given by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) suggesting that attorneys exercise “billing judgment” when applying to the Court for allowance of fees under sections 330 and 331 in the same manner that they use such judgment when presenting bills to their clients seems appropriate here. In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 583-84, 12 B.C.D. (CRR) 978, 992 (Bankr. D.Utah 1985) We have previously held that the bankruptcy estate should not have to bear the cost of compensating each attorney present at an intra-office conference unless counsel can show that the estate benefited from each attorney’s special area of expertise. In re American International Airways, Inc., 47 B.R. 716, 724 (Bankr.E.D.Pa.1985). In re Bible Deliverance Evangelistic Church, 39 B.R. 768, 777 (Bankr.E.D.Pa.1984). The frequency of the intra-office conferences and the length of time each entails are" }, { "docid": "15727954", "title": "", "text": "his services, a reasonable hourly rate for his services, and the contingent nature of his fee. Harris Trust, by contrast,' argues that this case also presents an important legal issue requiring our de novo review. It asks whether a bankruptcy trustee who does not act as his own litigation counsel may ever be compensated based on a’ percentage-of-the-fund (common fund) methodology. We will exercise de novo review to conclude that under the applicable statutes common fund methodology is not an appropriate form of compensation for a Chapter 7 trustee. 2. Statutory authority Authority for payment of a reasonable fee to a Chapter 7 trustee is found in 11 U.S.C. §§ 326 and 330. Section 330(a) provides that a bankruptcy court may award a trustee (1) reasonable compensation for actual, necessary services rendered by such trustee ... and by any paraprofessional persons employed by such trustee ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. Section 326(a) provides a formula that limits the compensation of a Chapter 7 trustee arrived at under § 330: In a case under chapter 7 ... the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, and three percent on any amount in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims. Under this standard, § 326(a) sets the maximum compensation payable to the trustee; it does not establish a presumptive or minimum compensation. The computation in [§ 326(a)] is a limitation on compensation, not a mandate for minimum commissions. The section states that the court may allow only “reasonable compensation under section" }, { "docid": "12955504", "title": "", "text": "indicates that had this case been fully administered in Chapter 7, non-exempt assets of $54,875.36 would have been disbursed. The trustee computes the percentages set forth in 11 U.S.C. § 326 to that sum to arrive at the fees. The trustee has also filed proof of claim # 15 which appears to duplicate claim # 7. The debtor has objected to the allowance of the trustee’s claim for administrative expenses as set forth above indicating, in the debtor’s objection, that the claim should be allowed in the amount of $205 (reimbursement of trustee’s expenses) as the balance exceeds reasonable compensation as set forth in 11 U.S.C. § 330. ISSUE This court must decide how a Chapter 7 trustee should be compensated when the case has been converted to Chapter 13 and no monies were actually disbursed by the Chapter 7 trustee. DISCUSSION All statutory references are to the Bankruptcy Code, Title 11 United States Code, unless otherwise indicated. Section 330 provides in pertinent part: (a) [T]he court may award to a trustee, (1) reasonable compensation for actual, necessary services rendered by such trustee, ... based on the nature, the extent and the value of such services, the time spent on such services and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. (b) There shall be paid from the filing fee in a case under Chapter 7 of this title, $45 to the trustee serving in such case, after such trustee’s services are rendered. Section 326 provides in pertinent part: (a) In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed fifteen percent on the first $1,000 or less, six percent on any amount in excess of $1,000 but not in excess of $3,000, and three percent on any amount in excess of $3,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding" }, { "docid": "14985430", "title": "", "text": "actual, necessary services rendered by such trustee, examiner, professional person, or attorney ... (emphasis added). Thus, prior to 1994, § 330(a)(1) explicitly authorized an award of fees to the debtor’s attorney. . The cases relied on by the Petitioning Creditors were In re NRG Resources, Inc., 64 B.R. 643 (W.D.La.1986), and In re Friedland, 182 B.R. 576 (Bankr.D.Colo.1995). . See also § 330(a)(4)(A), which provides that \"the court shall not allow compensation for (i) unnecessary duplication of services; or (ii) services that were not (I) reasonably likely to benefit the debtor's estate; or (II) necessary to the administration of the case.” . The court rejected A&K's contention that it had been responsible for reducing the claim of Mission Foods/Fiesta Jiminez by $500,000, found that A&K's opinion that Pro-Snax could qualify as a small debtor was flawed, and noted that Pro-Snax’s Chapter 11 plan was never confirmed. . A&K contends that the district court's remand order—after (1) reversing on § 330 grounds the bankruptcy court's award of fees earned after the appointment of the Chapter 11 trustee and (2) concluding that no exceptions to the American Rule were applicable—merely left the bankruptcy court with a \"mechanical, computational, or ministerial” task to perform, that is, a reduction of the fee award to include only those fees earned before the trustee was appointed. A&K observes that a remand to the bankruptcy court at this juncture would most assuredly result in a second appeal and therefore be a waste of time and other judicial resources, given that their assertion that (1) the order to reverse the $30,000 fee award was based on an incorrect interpretation of § 330, and (2) the standard identified by the district court to determine the appropriate amount (i.e., “[consider the debtor's] degree of success”) will still be live issues. Likewise, the Petitioning Creditors also urge us to assume jurisdiction, claiming that the bankruptcy court's remaining duties are purely computational and require only that the court enter an award of $3,047 to A & K ($13,047 pre-trustee fees minus the $10,000 retainer). In addition, the Petitioning Creditors claim that the" } ]

[ { "docid": "12047604", "title": "", "text": "the trial judge in the record of trial. It concluded, however, that such error did not prejudice appellant because he had denied the other offenses, the prosecution had not introduced any extrinsic evidence of the offenses, and the trial judge had given appropriate limiting instructions. We conclude that the lower court’s holding of harmless error was justified for the reasons stated above. Moreover, the challenged questions were authorized under Mil.R.Evid. 404(b) for several purposes advanced by trial counsel which, for some inexplicable reason, were ignored by the trial judge and the Court of Military Review. In this con text, the above-noted error in the trial judge’s reasoning clearly was harmless beyond a reasonable doubt. Trial counsel initially justified these questions on the basis that the prior acts of misconduct would show appellant’s motive for committing the charged acts. Mil.R.Evid. 404(b). Evidence of motive is relevant within the meaning of Mil.R.Evid. 401 to show the doing of an act by a person as an outlet for that emotion. See generally 1A Wigmore, Evidence § 117 (Tillers rev. 1983). However, the prior acts of conduct must be the type which reasonably could be viewed as “the expression and effect of the existing internal emotion.” Id. at 1696. Moreover, this same motive must be shown to have existed in appellant at the time of the subsequently charged acts. See generally 2 Wigmore, Evidence § 395 (Chadbourn rev. 1979). The prior acts referred to by trial counsel all involved the use of physical violence against different women while appellant was under the influence of alcohol. Such conduct, repeated on numerous occasions, reasonably reflects hostile feelings on the part of appellant towards women. See State v. Abercrombie, 375 So.2d 1170 (La.1979); see also Thiede v. Utah, 159 U.S. 510, 16 S.Ct. 62, 40 L.Ed. 237 (1895), and 2 Wigmore, supra, §§ 396 and 397. The closeness in time of the previous acts to those charged here and the common fact of appellant’s intoxication suggest further that this hostile feeling towards women also existed in appellant at the time of the charged offenses, i.e., April 19," } ]

[ { "docid": "17141940", "title": "", "text": "is admissibility of the testimony of Private Tucker, Cliff Styles, and Tyrone Noble regarding appellant’s prior drug activities. See Mil.R.Evid. 404(b) and 403, Manual for Courts-Martial, United States, 1984. The testimony of these witnesses was essentially that appellant had engaged in at least ten other conspiratorial drug sales and uses within the year preceding the charged offenses. Trial counsel argued, inter alia, that this uncharged misconduct showed appellant’s specific intent, plan or scheme, and motive to join the charged conspiracy to distribute drugs. The military judge admitted the evidence for these reasons. We first must decide whether the uncharged-misconduct evidence in this case served a relevant purpose at appellant’s trial other than showing appellant’s guilt by reason of his bad character. Mil. R. Evid. 404(b). See United States v. Reynolds, 29 MJ 105, 109 (CMA 1989) (fact of consequence). Since appellant was charged with conspiracy between February 9 and 19, 1989, the prosecution was required to show that he then agreed, expressly or impliedly, with his fellow conspirators to commit a crime. See generally United States v. Matias, 25 MJ 356, 362 (CMA 1987), cert. denied, 485 U.S. 968, 108 S. Ct. 1242, 99 L.Ed.2d 441 (1988); United States v. French, 965 F.2d 67, 73 (6th Cir. 1992). See para. 5b(1), Part IV, Manual, supra. Moreover, it was also required to show that appellant agreed to commit the particular crime alleged to be the object of the conspiracy charged in this case, i.e., distribution of cocaine. Finally, we note that appellant broadly denied the government witnesses’ testimony that an agreement to distribute cocaine existed in February of 1989. The uncharged-misconduct evidence showed numerous incidents during the pre ceding year of the conspirators’ needing money or drugs and their response of getting together to buy drugs in D.C. Such repeated unlawful concerts of action circumstantially suggest a tacit agreement or understanding between these persons with respect to unlawfully acquiring drugs. Id. Moreover, existence of such an agreement as late as December 1988 was some evidence that a similar agreement existed between the same conspirators including appellant in February of 1989. Accordingly," }, { "docid": "12115785", "title": "", "text": "for any purpose would be unduly prejudicial. Mil. R. Evid. 403. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); United States v. Owens, 21 MJ 117 (CMA 1985). The judge agreed that Mil. R. Evid. 403 would preclude admission of this evidence in the Government’s case-in-chief to show appellant’s intent under Mil. R. Evid. 404(b). However, he expressly deferred ruling whether such evidence might otherwise be admissible for impeachment purposes under Mil. R. Evid. 609(a) or rebuttal purposes under Mil. R. Evid. 404(a)(1). The judge stated: I believe it is admissible under those factors that I’ve announced. They, at this point, tend to tilt towards admissibility for the Government. I will make a final ruling after we get further in the case, and at the point at which it’s tendered and I see specifically how it arises and what the case looks like at that point in terms of both the government evidence and the defense evidence because some of these factors aren’t truly knowable at this point in terms of how it actually fits into this particular case, but the defense should plan on admissibility of that conviction, because that, unless indicated otherwise, will probably be ruled admissible. But as I said, I’m going to reserve judgment on it until I see the factual context in which it is presented. We note that appellate defense counsel concedes that trial defense counsel could have requested a later Article 39(a), UCMJ, 10 U.S.C. § 839(a), session to resolve these outstanding matters. Thus, a finding of waiver based on counsel’s failure to timely object to this evidence might be appropriate under Mil. R. Evid. 103(a)(1). United States v. Griffin, 25 MJ 423 (CMA 1988). In addition, defense counsel in this case also affirmatively informed the members of this prior conviction in his opening argument on findings and himself adduced evidence of this conviction in his case-in-chief. These tactical forays occurred prior to any use by the prosecution of its evidence of this conviction. See generally Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54" }, { "docid": "1101838", "title": "", "text": "or at any time for this purpose was a sham and not authorized by Mil.R.Evid. 404(b). See generally United States v. Reynolds, 29 MJ 105, 110 (CMA 1989); United States v. Cuellar, 27 MJ 50 (CMA 1988), cert. denied, — U.S. -, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989). We disagree with this argument in the present case for several reasons. First, we note that the military judge initially stated that he would not rule on admissibility of the books until both sides presented their cases. However, it was defense counsel who insisted that the judge rule at the close of the prosecution’s case. United States v. White, 25 MJ 50, 52 (CMA 1987). Second, defense counsel refused to commit himself at that time on the issue of intent or provide any assurances to the judge that he would not dispute that issue. See United States v. Webb, 625 F.2d 709, 710 (5th Cir.1980). Third, there is a legitimate disagreement not only in the various United States Courts of Appeals, but also in the state courts, on whether the intent must be actually disputed before evidence of prior bad acts may be admitted by the Government to show intent. See cases cited in 2 Wigmore, Evidence §§ 307 and 360 (Chadbourn rev.1979). Fourth, the members could have partially disbelieved the victim and found that the acts of sexual intercourse or sodomy were not committed by appellant but that he did engage in other conduct more ambiguous in nature. Then intent would be a material issue in this case. See generally United States v. Beahm, 664 F.2d 414 (4th Cir.1981). Appellant in his final argument suggests this sex-book evidence was so “emotional” or “repulsive” that its admission even for a valid purpose under Mil.R.Evid. 404(b) was unduly prejudicial. Mil.R.Evid. 403. We note that the judge specifically ruled on this question, and his decision should not be lightly disregarded. See United States v. Abel, 469 U.S. 45, 54-55, 105 S.Ct. 465, 470-471, 83 L.Ed.2d 450 (1984). Moreover, he twice instructed the members that they could consider the challenged evidence only on lesser" }, { "docid": "14707545", "title": "", "text": "a similar question of admissibility of uncharged misconduct under Mil.R.Evid. 404(b), is a helpful guide to the case now under our consideration. In Miller, the appellant was convicted of molesting an 8-year-old boy. At trial, the Government introduced evidence under Mil.R.Evid. 404(b) of Miller’s similar misconduct with K, who was 9 years old at the time of the alleged abuse. Although Miller had been tried and acquitted of charges stemming from that incident, we held that the military judge did not abuse his discretion by allowing K to testify to the prior acts. Regarding the purpose of allowing prior wrongs or acts into evidence under 404(b), we held: The first sentence of Mil.R.Evid. 404(b) prohibits propensity evidence. Then the rule states that evidence of “crimes, wrongs, or acts” is admissible “for other purposes, such as proof of motive, opportu nity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” rather than for proof of character. “Accordingly, the sole test under Mil. R.Evid. 404(b) is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime and thereby to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses.” 46 MJ at 65, quoting United States v. Castillo, 29 MJ 145, 150 (CMA 1989). In appellant’s situation, the military judge carefully analyzed the evidence under Mil. R.Evid. 404(b) and determined that the Government had proven the testimony of SA Omo and Dr. Playl was being offered “to show a pattern of behavior of the accused which I take to be a design or system....” In addition to discussing proper purposes, Miller also reiterated the test this Court uses to determine the admissibility of uncharged misconduct. To be admissible the evidence must (1) reasonably support a finding that an accused committed prior crimes, wrongs, or acts; (2) make a fact of consequence more or less probable; and (3) possess probative value that is not substantially outweighed by its danger for unfair prejudice. 46 MJ at 65, citing United States v. Reynolds, 29" }, { "docid": "18956194", "title": "", "text": "United States v. Rhea, all supra. In view of this case law, the military judge in this case did not err in admitting the challenged evidence to show the above-noted intents required to prove the crimes charged in this case. See United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir.1998); contra People of Guam v. Shymanovitz, 157 F.3d 1154, 1158 n. 8 (9th Cir.1998) (discussing military cases). The military judge also admitted the challenged evidence to show appellant’s motive for committing the charged offenses. See generally 2 Wigmore, Evidence §§ 385-87 (Chadbourn rev.1979). Such an evidentiary fact is circumstantial evidence that appel lant did the charged acts. Motive evidence shows the doing of an act by a particular person by evidencing an emotional need in that person which could have incited or stimulated that person to do that act in satisfaction of that emotion. See United States v. Watkins, 21 MJ 224, 227 (CMA), cert. denied, 476 U.S. 1108, 106 S.Ct. 1956, 90 L.Ed.2d 364 (1986). In our view, appellant’s possession of a large number of homosexual materials in his military barracks room on the day of the offense, including some depicting acts similar to those particularly charged, reasonably suggests an emotional need for his committing the charged homosexual-related misconduct, i.e., his sexual desire for junior enlisted men. See United States v. Rhea, supra; see generally 2 Wigmore, supra, § 399. The military judge finally admitted the homosexual-oriented materials to show a plan or design on appellant’s part to commit the charged offenses. He reviewed the proffered tape and related materials and concluded they depicted a plan or method to secure homosexual sex from unsuspecting service-members. See generally United States v. Brannan, 18 MJ 181, 183 (CMA 1984). Materials suggesting sexual abuse of the superi- or-subordinate relationship in the military environment or coercive sexual conduct in a military-type environment rationally support this ruling. See United States v. Miller, 46 MJ 63, 66 (1997). The second question in this case is raised under Mil.R.Evid. 403. It states: Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste" }, { "docid": "18956199", "title": "", "text": "have consented to oral sex with “somebody.” Finally, only as a last resort did he vaguely suggest his own consensual conduct and such equivocation did not clearly remove the intent issues from this case. 26 MJ at 4; see Orsbum, 31 MJ at 188 (no defense concession). We also reject the defense’s discounting of the probative value of this evidence on grounds it was cumulative. First, the purported cumulative evidence, ie., appellant’s pretrial admissions, were more generic in nature and undermined by appellant’s repeated protestations that he was too drunk to remember his actions and intentions on the night in question. See Old Chief, supra at 187-90, 117 S.Ct. at 654. Second, the challenged evidence was specific in nature, particularly with regard to context, ie., oral sex between men in a military or quasi-military setting. Third, the challenged evidence had a nexus to the charged offenses: it was found in appellant’s room on the day in question, a short distance from the alleged attack. We conclude that the challenged evidence retained its high probative value in these circumstances. See United States v. Mann, supra; see generally Old Chief, supra at 190, 117 S.Ct. 644 (admission of prior-crimes evidence to provide coherent “narrative” does not constitute an abuse of discretion under Fed.R.Evid. 403). Finally, even if the challenged pictorial evidence was not highly probative, we conclude that its admission and display to members did not unduly prejudice appellant. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). He was charged with two sexual offenses involving force and a lack of consent on the part of his alleged victim. Yet, despite the coercive homosexual acts portrayed in some of the challenged materials, he was found not guilty of these charges. Cf. Shymanovitz, supra at 1161 (“highly likely” accused found guilty on basis of “highly inflammatory” evidence). In addition, although appellant was found guilty of two sexual offenses not requiring force or a lack of consent, he did not actively dispute the prosecution’s overwhelming proof of his participation in these lesser offenses. Here, there was eyewitness testimony" }, { "docid": "1101839", "title": "", "text": "courts, on whether the intent must be actually disputed before evidence of prior bad acts may be admitted by the Government to show intent. See cases cited in 2 Wigmore, Evidence §§ 307 and 360 (Chadbourn rev.1979). Fourth, the members could have partially disbelieved the victim and found that the acts of sexual intercourse or sodomy were not committed by appellant but that he did engage in other conduct more ambiguous in nature. Then intent would be a material issue in this case. See generally United States v. Beahm, 664 F.2d 414 (4th Cir.1981). Appellant in his final argument suggests this sex-book evidence was so “emotional” or “repulsive” that its admission even for a valid purpose under Mil.R.Evid. 404(b) was unduly prejudicial. Mil.R.Evid. 403. We note that the judge specifically ruled on this question, and his decision should not be lightly disregarded. See United States v. Abel, 469 U.S. 45, 54-55, 105 S.Ct. 465, 470-471, 83 L.Ed.2d 450 (1984). Moreover, he twice instructed the members that they could consider the challenged evidence only on lesser offenses to those charged, which are not the subject of this appeal. In addition, the judge twice instructed the members that they could not consider this evidence to show appellant was a bad man and probably did the charged offenses. In the absence of evidence to the contrary, we must presume the members did not consider this evidence at all with respect to the findings of guilty before us. See United States v. Ricketts, 1 MJ 78 (CMA 1975). Accordingly, reversal on the basis of Mil.R.Evid. 403 is not warranted. United States v. Owens, 21 MJ 117, 124 (CMA 1985). The decision of the United States Air Force Court of Military Review is affirmed. Judge COX concurs. . He was found guilty of raping his daughter on \"divers occasions between 10 August 1984 and 24 April 1985.\" . For example, appellant was found guilty of committing indecent acts under the original charges of rape and sodomy, in Additional Charges I and II. These charges, however, were dismissed on the basis of the statute of limitations;" }, { "docid": "12136633", "title": "", "text": "(a single specification of cocaine use on or about July 7-12, 1991). 9. Turning first to the broader uncharged-misconduct question, we note that the prosecution is not allowed to show that a military accused ingested a drug in the past and, therefore, he probably did it on the charged occasion. Mil.R.Evid. 404(b). However, evidence of prior use of a drug is not barred for all purposes at a court-martial. On the contrary, Mil.R.Evid. 404(b) itself states: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person 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. (Emphasis added.) Accordingly, an initial question in this case is for what purpose was the challenged evidence offered by the prosecution at this court-martial. See also Mil. R.Evid. 105. 10. The record of trial shows that appellant was charged with a single specification of using cocaine between July 7 and 12, 1991. We further note that the prosecution predicated its case on evidence that appellant’s urine was seized on July 12, 1991, and it tested positive for cocaine. Moreover, it was implied from appellant’s pretrial statement (admitted as prosecution exhibit), the defense’s opening statement, and its closing argument that appellant’s defense in this case was innocent or unknowing ingestion. Finally, we note that trial counsel initially stated that his intention was to use this evidence to rebut any suggestion by the defense that appellant’s use of cocaine on the charged date was inadvertent or unknowing. Admission of evidence of prior acts of similar misconduct to rebut a defense of mistake or lack of knowledge is clearly allowed by Mil. R.Evid. 404(b). United States v. Spata, 34 MJ 284-86 (CMA 1992) (rebut defense of innocent ingestion); see generally United States v. Holmes, 39 MJ at 180 (knowledge); United States v. Dorsey, 38 MJ 244, 247 (CMA 1993) (intent); United States v. Brooks, 22 MJ 441 (CMA" }, { "docid": "12136640", "title": "", "text": "abuse, obviously had great potential for prejudicing appellant in his trial for use of cocaine. See also United States v. Huels, 31 F.3d 476, 479 (7th Cir. 1994). Moreover, the military judge failed to instruct the members that the particular use of this evidence was limited to rebutting the defense of innocent ingestion. See United States v. Abel, 469 U.S. 45, 52-53, 105 S.Ct. 465, 469-70, 83 L.Ed.2d 450 (1984); see also United States v. Betts, supra. Finally, the military judge did not give a cautionary instruction to members that they could not use the challenged evidence to show appellant did the charged act. See also United States v. Cousins, 35 MJ 70, 74 (CMA 1992). In these circumstances, we conclude that the judge abused his discretion in concluding that admission of this minimally probative evidence was permitted by Mil.R.Evid. 403. See Government of the Virgin Islands v. Archibald, 987 F.2d 180, 186-87 (3d Cir. 1993); United States v. Doe, 903 F.2d 16, 21-23 (D.C.Cir.1990). 17. Despite this conclusion, we are nonetheless convinced that admission of the evidence of sinusitis and Doctor Sweet’s testimony suggesting appellant was a chronic drug abuser ultimately proved to be harmless error. See United States v. Brooks, 26 MJ at 29; United States v. Betts, 16 F.3d at 760-61. First, we note that the prosecution presented an iron-clad case of guilt based on urinalysis evidence. See United States v. Perry, 37 MJ 363, 365 (CMA 1993). Second, appellant’s attempt to raise the defense of innocent ingestion based on consumption of “crumb cake” during a drinking party, a later feeling that his lips were “numb and tingly,” and the subsequent discovery that a drug dealer attended the party was patently feeble. See United States v. Brooks, supra, cf. United States v. Cousins, supra. Third, we note that the prosecution’s own witness conceded that sinusitis could be caused by a myriad of things besides chronic use of cocaine. Finally, defense counsel substantially diminished the impact of this prosecution evidence through cross-examination of Dr. Sweet which skillfully exploited the obvious weakness of this evidence. Given this state of" }, { "docid": "17141945", "title": "", "text": "previous drug transactions and use was far outweighed by its danger of unfair prejudice to him. See Mil.R.Evid. 403. While the challenged testimony was prejudicial to appellant’s case, the above rule only precludes admission of evidence which is “unduly” prejudicial to the defense. United States v. Owens, 21 MJ 117, 124 (CMA 1985). Moreover, we will not disturb the military judge’s determination on this question absent a clear abuse of discretion on his part. United States v. Cuellar, 27 MJ 50, 54 (CMA 1988), cert. denied, 493 U.S. 811, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989); see United States v. Mukes, 18 MJ at 359 (CMA 1984). In the present case, numerous incidents of uncharged drug misconduct were presented by the Government. However, this evidence was admitted for specific and limited purposes to shore weaknesses in the prosecution’s case occasioned by appellant’s broad testimonial denials. United States v. Silvis, 33 MJ 135, 137 (CMA 1991) . These evidentiary purposes were not directly related to appellant’s character but concerned other relevant circumstantial facts which showed his guilt of the charged offenses. United States v. Owens, supra. Moreover, the judge twice gave appropriate limiting instructions on the permissible uses of this evidence. See United States v. Orsburn, 31 MJ 182, 188 (CMA 1990), cert. denied, — U.S.-, 111 S.Ct. 1074, 112 L.Ed.2d 1179 (1991). Accordingly, we find no prejudicial error occurred in this case. See United States v. Jones, 32 MJ 155 (CMA 1991). See generally United States v. Washington, 969 F.2d 1073 (D.C.Cir. 1992) . II The second granted issue asks “whether appellant was denied a fair trial” because two members of his court-martial “failed to disclose” certain information in response to the military judge’s voir dire. See generally Smith v. Phillips, 455 U.S. 209, 215-18, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). First, appellant contends that this nondisclosure permitted those members to sit on his court-martial although a substantial doubt now exists as to their overall impartiality. See RCM 912(f)(l)(N), Manual, supra. This doubt, he asserts, arises because such nondisclosure suggests these members may have deliberately disregarded the judge’s voir" }, { "docid": "18956200", "title": "", "text": "in these circumstances. See United States v. Mann, supra; see generally Old Chief, supra at 190, 117 S.Ct. 644 (admission of prior-crimes evidence to provide coherent “narrative” does not constitute an abuse of discretion under Fed.R.Evid. 403). Finally, even if the challenged pictorial evidence was not highly probative, we conclude that its admission and display to members did not unduly prejudice appellant. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). He was charged with two sexual offenses involving force and a lack of consent on the part of his alleged victim. Yet, despite the coercive homosexual acts portrayed in some of the challenged materials, he was found not guilty of these charges. Cf. Shymanovitz, supra at 1161 (“highly likely” accused found guilty on basis of “highly inflammatory” evidence). In addition, although appellant was found guilty of two sexual offenses not requiring force or a lack of consent, he did not actively dispute the prosecution’s overwhelming proof of his participation in these lesser offenses. Here, there was eyewitness testimony concerning appellant’s acts from the other soldier involved; DNA evidence of the alleged victim’s semen on appellant’s shirt; and his own pretrial statement effectively acknowledging his physical attraction to the other soldier. See also United States v. LaChapelle, 969 F.2d 632, 638 (8th Cir.1992). In these circumstances, and in view of the judge’s repeated limiting instructions, we conclude that appellant’s claim of unfair prejudice from these sexually explicit materials is not persuasive. Orsbum, 31 MJ at 188; see also Simpson, 152 F.3d at 1249 (nature of charges themselves brings some risk of offending average juror but careful judicial attention can prevent undue prejudice); United States v. Reynolds, 29 MJ 105, 110 (CMA 1989) (unfair-prejudice ruling upheld concerning uncharged sexual misconduct admitted under Mil.R.Evid. 404(b)). The decision of the United States Army Court of Criminal Appeals is affirmed. . Consent is not an element of a sodomy offense in violation of Article 125. See para. 51e, Part IV, Manual for Courts-Martial, United States (1994 edition). Lack of consent, however, does authorize a more severe punishment. Note" }, { "docid": "7250358", "title": "", "text": "several reasons. First, appellant at trial did not object to the challenged testimony of Sergeant Warren on any grounds. Assuming all the above objections were not waived (see Mil.R.Evid. 103(a)), a contention of undue prejudice in this context is difficult to accept. See United States v. Sparrow, 33 MJ 139, 141 (CMA 1991). Second, defense counsel attacked Sergeant Warren’s testimony in his closing arguments for most of the reasons noted above and also obtained an important concession from this government witness as to the practice of inserting cocaine in cigarettes. Fairness does not dictate that appellant have it both ways. See United States v. Holt, 33 MJ 400, 406 (CMA 1991); United States v. Talbert, 33 MJ 244, 247 (CMA 1991). Third, a criminal drug investigator might in some circumstances be qualified to give expert testimony on the physical characteristics and identification of contraband drugs. See United States v. Tyler, 17 MJ 381, 385 (CMA 1984); United States v. Johnson, 575 F.2d 1347, 1360-61 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979). See generally 2 Wigmore, Evidence § 457 at 569-72 (Chadbourn rev.1979). The admission of Sergeant Warren’s testimony thus was not egregious error. Finally, the members were not instructed that Sergeant Warren was an expert, and his testimony fit within the equivocations expressed by the defense expert himself. We find that no plain error existed in these circumstances. See generally Mil.R.Evid. 103(d). II The other issue raised by appellant on this appeal challenges the instructions given by the military judge to the members prior to findings. Appellate counsel argue that these instructions were so inadequate that the members were in effect invited to ignore the defense evidence of innocent ingestion and presume appellant’s ingestion was knowing and conscious. The dissenting judge on the Court of Military Review more clearly articulated purported defects in these instructions. First, he asserted that the judge’s instructions did not clearly delineate the two types of knowledge required for conviction of a drug-possession charge under Article 112a. See United States v. Crumley, 31 MJ 21, 23 (CMA 1990). Second," }, { "docid": "1204207", "title": "", "text": "person or has criminal tendencies and that he, therefore, committed the offense charged. Neither counsel objected to the instructions or requested additional instructions. B. Discussion Appellant contends that the military judge erred by admitting evidence that appellant showered with his daughter and son and showed them pornographic videos. The question on appellate review is whether the military judge abused her discretion by admitting the evidence in question. United States v. Spata, 34 MJ 284, 286 (CMA 1992). We hold that she did not. Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984, provides: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person 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. The categories of admissible evidence listed in MiLR.Evid. 404(b) are illustrative; it is not necessary that “evidence fit snugly into a pigeon hole provided by Mil.R.Evid. 404(b).” The test is “whether the evidence ... is offered for some purpose other than to demonstrate the accused’s predisposition to crime and thereby to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses.” United States v. Castillo, 29 MJ 145, 150 (CMA 1989). In United States v. Reynolds, 29 MJ 105, 109 (CMA 1989), we set out a three-part test for determining admissibility of “404(b)” evidence: 1. Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts? 2. What “fact ... of consequence” is made “more” or “less probable” by the existence of this evidence? 3. Is the “probative value ... substantially outweighed by the danger of unfair prejudice”? (Citations omitted.) The first prong is founded on Mil.R.Evid. 104(b), dealing with relevance conditioned on a fact. The threshold for this prong of admissibility is low. See United States v. Dorsey, 38 MJ 244, 246 (CMA 1993). As the Supreme Court explained in Huddleston v. United States, 485 U.S. 681," }, { "docid": "13045208", "title": "", "text": "Id. “[E]vidence which is offered simply to prove that an accused is a bad person is not admissible” under Mil.R.Evid. 404(b), Manual for Courts-Martial, United States (2000 ed.). United States v. Reynolds, 29 MJ 105, 109 (CMA 1989). Mil.R.Evid. 404(b), however, is a rule of inclusion, not exclusion. “[T]he sole test under Mil.R.Evid. 404(b) is whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime____” United States v. Tanksley, 54 MJ 169, 175 (2000)(quoting United States v. Castillo, 29 MJ 145, 150 (CMA 1989)). As the Supreme Court stated when speaking of Mil.R.Evid. 404(b)’s counterpart, Fed.R.Evid. 404(b): “The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character.” Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). In addition to having a proper purpose, the proffered evidence must meet the standards of Mil.R.Evid. 104(b), 402, and 403. See Reynolds, 29 MJ at 109. Reflecting the combined requirements of these rules, our Court applies a three-pronged test for determining admissibility of other-acts evidence under Mil. R.Evid. 404(b). See id. We evaluate: (1) whether “the evidence reasonably supports a finding by the court members that appellant committed prior crimes, wrongs or acts”; (2) “[w]hat fact of consequence is made more or less probable by the existence of this evidence”; and (3) whether “the probative value [is] substantially outweighed by the danger of unfair prejudice[.]” Id. (internal quotations, ellipses, and citations omitted); see also Tanksley, 54 MJ at 176-77. “If the evidence fails any of the three tests, it is inadmissible.” United States v. Cousins, 35 MJ 70, 74 (CMA 1992); accord Reynolds, 29 MJ at 109. Under the Reynolds analysis, the military judge did not abuse his discretion by admitting the testimony of PVTs CA and F. First, there was more than sufficient evidence for the members to conclude that appellant made the statements to PVT CA. In addition to her testimony, the incidents were confirmed by PVT AA" }, { "docid": "12136632", "title": "", "text": "knowing as well wrongful, the Government feels it’s relevant and should be admitted. (Emphasis added.) 7. The military judge agreed with the Government. The medical records and testimony of Doctor Sweet were later admitted at this court-martial. No limiting instructions were requested by defense counsel or given by the judge concerning the proper use of this evidence by the members. 8. Our starting point in this case is the granted issue. It expressly complains about admission of portions of appellant’s medical records evidencing sinusitis to show that he used cocaine on various occasions between January 1989 and October 1991. However, it also implicitly raises a defense objection to testimony from a prosecution witness, Doctor Sweet, that sinusitis is a symptom of frequent or heavy use of cocaine by snorting it through one’s nose. In sum, the granted issue asserts that it was unfair for the prosecution to use this medical and scientific evidence to picture him as “a chronic cocaine user,” Final Brief at 3, and, on this basis, convict him of the charged offense (a single specification of cocaine use on or about July 7-12, 1991). 9. Turning first to the broader uncharged-misconduct question, we note that the prosecution is not allowed to show that a military accused ingested a drug in the past and, therefore, he probably did it on the charged occasion. Mil.R.Evid. 404(b). However, evidence of prior use of a drug is not barred for all purposes at a court-martial. On the contrary, Mil.R.Evid. 404(b) itself states: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person 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. (Emphasis added.) Accordingly, an initial question in this case is for what purpose was the challenged evidence offered by the prosecution at this court-martial. See also Mil. R.Evid. 105. 10. The record of trial shows that appellant was charged with" }, { "docid": "12115784", "title": "", "text": "and the Court of Military Review also had great difficulty equating this same certificate and successful restoration to service with “a pardon, annulment, certificate of rehabilitation, or other equivalent procedure” within the meaning of Mil. R. Evid. 609(c). Based on the record before us, we find no abuse of discretion in their assessment of this particular service program and appellant’s subsequent performance. See United States v. Ferguson, 776 F.2d 217, 222-23 (8th Cir. 1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986); Wilson v. Attaway, 757 F.2d 1227, 1244 (11th Cir. 1985); United States v. Jones, 647 F.2d 696, 700 (6th Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981); United States v. Wiggins, 566 F.2d 944 (5th Cir.), cert. denied, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978). See generally United States v. Moultak, 24 MJ 316 (CMA 1987). II Turning to the other granted issue, we note that appellant also asserted at trial that admission of evidence of his prior conviction for rape for any purpose would be unduly prejudicial. Mil. R. Evid. 403. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); United States v. Owens, 21 MJ 117 (CMA 1985). The judge agreed that Mil. R. Evid. 403 would preclude admission of this evidence in the Government’s case-in-chief to show appellant’s intent under Mil. R. Evid. 404(b). However, he expressly deferred ruling whether such evidence might otherwise be admissible for impeachment purposes under Mil. R. Evid. 609(a) or rebuttal purposes under Mil. R. Evid. 404(a)(1). The judge stated: I believe it is admissible under those factors that I’ve announced. They, at this point, tend to tilt towards admissibility for the Government. I will make a final ruling after we get further in the case, and at the point at which it’s tendered and I see specifically how it arises and what the case looks like at that point in terms of both the government evidence and the defense evidence because some of these factors aren’t truly knowable at this point" }, { "docid": "12136639", "title": "", "text": "drug abuser. See also Mil.R.Evid. 404(b). We agree. See also United States v. Betts, 16 F.3d at 759 (“poorly disguised propensity argument” prohibited by Fed.R.Evid. 404(b)). 15. In resolving this Mil.R.Evid. 403 question, we first note that our decision in United States v. Ray, 26 MJ at 471, involved a trial by judge alone, who, we presumed, would not be confused by the limited use allowed of this evidence or would not use it unfairly. Appellant’s trial, however, was by members; accordingly, the same presumption is not applicable. E.g., United States v. Deninno, 29 F.3d 572, 577 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1117, 130 L.Ed.2d 1081 (1995); United States v. Johnson, 28 F.3d at 1499. Second, the challenged evidence of sinusitis had limited value to show prior heavy drug use which was further diminished by the fact that Doctor Sweet did not personally examine appellant. See generally United States v. Holmes, 39 MJ at 180-81. 16. On the other hand, the sinusitis evidence, coupled with Doctor Sweet’s testimony on chronic cocaine abuse, obviously had great potential for prejudicing appellant in his trial for use of cocaine. See also United States v. Huels, 31 F.3d 476, 479 (7th Cir. 1994). Moreover, the military judge failed to instruct the members that the particular use of this evidence was limited to rebutting the defense of innocent ingestion. See United States v. Abel, 469 U.S. 45, 52-53, 105 S.Ct. 465, 469-70, 83 L.Ed.2d 450 (1984); see also United States v. Betts, supra. Finally, the military judge did not give a cautionary instruction to members that they could not use the challenged evidence to show appellant did the charged act. See also United States v. Cousins, 35 MJ 70, 74 (CMA 1992). In these circumstances, we conclude that the judge abused his discretion in concluding that admission of this minimally probative evidence was permitted by Mil.R.Evid. 403. See Government of the Virgin Islands v. Archibald, 987 F.2d 180, 186-87 (3d Cir. 1993); United States v. Doe, 903 F.2d 16, 21-23 (D.C.Cir.1990). 17. Despite this conclusion, we are nonetheless convinced that admission" }, { "docid": "12140761", "title": "", "text": "unaware of the activity going on; and (5) in each instance Cuellar placed his hand near the private area of the girl's body. Not only does this testimony of the four young witnesses strongly suggest that he intended to molest Jenny sexually, but also it tends to demonstrate a modus operandi on Cuellar’s part. Under these circumstances, the evidence was admissible under MiLR.Evid. 404(b). See United States v. Mann, 26 MJ 1 (CMA), cert. denied, 109 S.Ct. 72 (1988). Appellate defense counsel also have claimed that the evidence of uncharged misconduct was not “clear and conclusive” and therefore should have been excluded. See United States v. Janis, 1 MJ 395, 397 (CMA 1976). Even if this high standard of proof were applicable, the testimony of the four girls would have met that standard. Moreover, as we interpret Mil.R.Evid. 404(b), it does not require that the evidence of uncharged misconduct be “clear and conclusive,” so in this regard Janis is super-ceded. United States v. Mirandes-Gonzalez, 26 MJ 411 (CMA 1988); cf. Huddleston v. United States, 485 U.S. -, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (interpreting the comparable Federal Rule of Evidence). Under both the Military Rules and the Federal Rules, the judge is not required to make a preliminary finding that the uncharged misconduct occurred. Instead, he “decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.” 108 S.Ct. at 1501. We also disagree with appellant’s argument that the probative value of the previous sex offenses was substantially outweighed by its danger of unfair prejudice to appellant. The decision to admit or reject evidence pursuant to MiLR.Evid. 403 lies within the military judge’s discretion; and unless he has abused his discretion, we will not disturb his ruling. In this case, there was no abuse of discretion in admitting the challenged evidence. Cf. United States v. Hicks, 24 MJ 3 (CMA), cert. denied, — U.S. -, 108 S.Ct. 95, 98 L.Ed.2d 55 (1987) (the military judge did not abuse his discretion in admitting the testimony of four females who all testified to appellant’s previous," }, { "docid": "13526631", "title": "", "text": "of inadmissible uncharged misconduct. Specifically, appellant points to four matters in the statement: (1) an admission that appellant had been involved in minor criminal activity before joining the Corps; (2) an incident at Camp Johnson, North Carolina, during which appellant showed a knife to deter his roommate, PFC Pendegrass, from “messing” with appellant; (3) an incident during which appellant armed himself with a Gerber knife in response to a disagreement with LCpl Hibbard; and (4) a statement that appellant had fired a weapon at a person before appellant became a Marine. Generally, a military judge’s ruling on admissibility of evidence is reviewed for abuse of discretion. See, e.g., United States v. Johnson, 46 MJ 8, 10 (1997). Thus, the challenged action must be “arbitrary, fanciful, clearly unreasonable,” or “clearly erroneous” to be overturned on appeal. United States v. Travers, 25 MJ 61, 62 (CMA 1987). Under Mil.R.Evid. 404(b), Manual, supra, evidence of “other crimes, wrongs, or acts” may be admitted if the proffered evidence: (1) reasonably supports a finding that appellant committed the crime, wrong, or act; (2) makes a fact of consequence more or less probable; and (3) possesses probative value that is not substantially outweighed by the danger of unfair prejudice. See United States v. Miller, 46 MJ 63, 65 (1997). The test for admissibility, therefore, is “whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime and thereby to suggest that the factfinder infer that he is guilty, as charged, because he is predisposed to commit similar offenses.” United States v. Castillo, 29 MJ 145, 150 (CMA 1989). The military judge denied the defense motion to redact the portions of the pretrial statement in question because “blanking out the entire paragraph ... might invite the members to speculate about what is being kept from them and it may cause them to actually infer something adverse to the accused when in fact, he was engaged in a perfectly lawful act.” The court also reasoned that the knife incident involving LCpl Hibbard was logically relevant to show that appellant" }, { "docid": "1087012", "title": "", "text": "“or the more relaxed rules for sentencing.” United States v. Martin, 20 MJ 227, 230 n.5 (CMA 1985), cert. denied, 479 U.S. 917, 107 S.Ct. 323, 93 L.Ed.2d 295 (1986). Military judges “should be particularly sensitive to probative dangers which might arise from the admission of uncharged misconduct evidence during the sentence procedure which, though relevant or even admissible, would unduly arouse the members’ hostility or prejudice against an accused.” United States v. Boles, 11 MJ 195, 201 (CMA 1981). Our standard for review of admission of such evidence is whether the military judge clearly abused his discretion. United States v. Redmond, 21 MJ 319, 326(CMA), cert. denied, 476 U.S. 1105, 106 S.Ct. 1950, 90 L.Ed.2d 359 (1986); United States v. Martin, supra. In appellant’s case, we find that the military judge did err in approving admission of the challenged letter-of-reprimand evidence. Mil.R.Evid. 403. Its probative value as to his military character was significantly reduced because of its obvious reliability problems. In addition, it is difficult to imagine more damaging sentencing evidence to a soon-to-be sentenced thief than also branding him as a sexual deviant or molester of teenage girls. See United States v. Bono, 26 MJ at 242. Finally, defense counsel in his closing argument, at least impliedly, requested that the military judge give some limiting instructions to the members on the proper use of this evidence. The tepid nature of the military judge’s general instructional response neither provided sufficient protection to the appellant in these particular circumstances nor clearly delineated the proper use of this evidence. Mil.R.Evid. 105. Accordingly, we hold that the decision to admit this explosive evidence of sexual perversion in these circumstances was a clear abuse of discretion. See generally United States v. Mirandes-Gonzalez, 26 MJ 411, 414 (CMA 1988) (Sullivan, J., concurring in the result); United States v. Williams, 28 MJ 911, 914-15 (ACMR 1989). Our next concern is whether appellant waived this error by entering into a stipulation of fact that he received a letter of reprimand for indecent acts with one young girl rather than five. We first note that a stipulation" } ]

[ { "docid": "22928811", "title": "", "text": "failure to support a response to a summary judgment motion with affidavits or other documents. Under Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), she argues, all pro se litigants are entitled to such notice. Second, Timms asserts that the defendant was not entitled to summary judgment because genuine issues of material fact remained. Specifically, she claims that issues remained as to whether shé was qualified for the position and as to the intent of the defendant in refusing to reinstate her. In considering these issues we review the record de novo, drawing all reasonable inferences in favor of the non-movant. Rizzo v. Caterpillar, Inc., 914 F.2d 1003 (7th Cir.1990). Summary judgment is proper only if there are no genuine issues of material fact remaining, such that the movant is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). A. Notice to Pro Se Litigants Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), involved a prisoner, suing pro se, who failed to respond to the defendants’ summary judgment motion. The court inferred that the Federal Rules of Civil Procedure forbade a district court to act on a summary judgment motion without giving the non-movant a reasonable opportunity to present counter-affidavits. Id. at 100-01. Further, the court found that “[a] reasonable opportunity presupposes notice.” Id. at 101-02. The court believed that the need to respond to such a motion with affidavits is not obvious to a layman, holding: Since few prisoners- have a legal background, we think it appropriate to lay down a general rule that a prisoner who is a plaintiff in a civil case and is not represented by counsel is entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment. Id. at 102. The court went on to state that defense counsel could provide this notice by including a short and plain statement of the need to respond with their summary judgment motion, giving both the text of Rule 56(e) and an explanation of the rule in ordinary English. Id. However, if defense counsel failed to provide" } ]

[ { "docid": "5481363", "title": "", "text": "before the court ruled on the motion to vacate, Mintz filed a motion for leave to file a summary judgment response instanter, along with a copy of the proposed response. The district judge denied the motion to vacate and the motion to file a belated response, treating them as an effort pursuant to Federal Rule of Civil Procedure 60(b) to obtain relief from a final judgment or order. The district judge did, however, indicate that he reviewed Mintz’s belated summary judgment submission and determined that nothing in it would have affected the grant of summary judgment. On the same date as it denied the motion to vacate, the district court issued a final judgment in favor of Caterpillar pursuant to Federal Rule of Civil Procedure 58. Mintz’s notice of appeal was filed approximately 6 days thereafter. II. DISCUSSION We review the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to Mintz and drawing all reasonable inferences from the evidence in his favor. Huang v. Cont’l Cas. Co., 754 F.3d 447, 450 (7th Cir.2014). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An employer who discriminates against an employee because of his race or retaliates against him for protesting unlawful discrimination violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981. We apply the same standards to Title VII and § 1981 discrimination and retaliation claims. Smiley v. Columbia Coll. Chi., 714 F.3d 998, 1002 (7th Cir.2013). Before getting to the merits, we provide the district court procedural guidance. As noted, the court treated Mintz’s motion to vacate and motion to file a belated summary judgment response collectively as a Federal Rule of Civil Procedure 60(b) motion. But Rule 60(b) provides that district courts “may relieve a party or its legal representative from a final judgment, order, or" }, { "docid": "23407630", "title": "", "text": "of fact, with citations to the record. The defendants did so. The local rule requires parties responding to summary judgment motions to present evidence, with citations to the record, that establishes genuine issues of material fact for trial. Nabozny responded to the defendants’ summary judgment motion by submitting a litany of conclusory statements, largely unsupported by citations to the rec ord. The defendants maintain that absent a more definitive response by Nabozny, the district court relied on the defendants’ proposed findings of fact to grant summary judgment in the defendants’ favor. We strictly enforce local rules, such as the summary judgment rule in this case, holding that when the nonmovant fails to reply in the proper form he concedes the movant’s version of the facts. See Fed.R.Civ.P. 56(e); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). Nabozny’s failure to comply with the local rule entitled the district court to limit its inquiry to whether, viewed in the light of the facts presented by the defendants, judgment is appropriate as a matter of governing law. Fed.R.Civ.P. 56(e); Glass v. Dachel, 2 F.3d 733, 739 (7th Cir.1993). It is unclear whether the district court meant to limit the record to the undisputed facts set forth in the defendants’ summary judgment motion. The district court’s summary judgment order made no mention of the local rule, or Nabozny’s failure to comply with it. For our purposes herein, we need not decide whether the court relied on the local rule. Regardless of what the district court intended, it is clear from the court’s order that it did not limit its review to the defendants’ grounds for summary judgment and proposed findings of fact. For example, the defendants sought summary judgment on Nabozny’s equal protection claims on the basis that Nabozny had failed to allege that any of the defendants participated in or encouraged the harassment that Nabozny suffered. The district court, however, granted summary judgment on Nabozny’s gender equal protection claim on the ground that no evidence in the record suggested that the defendants treated Nabozny differently because of his gender; a" }, { "docid": "22400597", "title": "", "text": "course of litigation. And it tracks the ancient common law axiom that a default is an admission of all well-pleaded allegations against the defaulting party. See generally B. Finberg, Annotation, Necessity of Taking Proof as to Liability Against Defaulting Defendant, 8 A.L.R.3d 1070 (1966). Other default provisions embrace that same philosophy. See, e.g., Fed.R.Civ.P. 4(a) (failure to appear and defend in response to a summons “will result in a judgment by default against the defendant for the relief demanded in the complaint”); cf. Fed. R.Civ.P. 16(f) (failure to attend pretrial conference); Fed.R.Civ.P. 37(b)(2)(C) (failure to obey discovery orders). Motions for summary judgment, however, lack these ancient common law roots. See generally John A. Bauman, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31 Ind. L.J. 329 (1956). They are governed by Rule 56 under which the failure to respond to the motion does not alone discharge the burdens imposed on a moving party. Under Rule 56(c), in addition to showing the absence of a genuine issue of material fact, the moving party must show that he is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Although the failure to respond may allow the district court to accept the movant’s factual assertions as true, see Local Civ. R. 56.2, the moving party must still establish that the undisputed facts entitle him to “a judgment as a matter of law,” see Champion, 76 F.3d at 486. Accordingly, we emphasize that courts, “in considering a motion for summary judgment, must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir.1993). We note too that Local Civil Rule 56.2 of the Southern and Eastern Districts of New York, which prescribes the notice to be provided to pro se litigants opposing summary judgment, is consistent with our holding. The notice must advise pro se litigants who oppose summary judgment that “[t]he claims you" }, { "docid": "5481364", "title": "", "text": "754 F.3d 447, 450 (7th Cir.2014). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An employer who discriminates against an employee because of his race or retaliates against him for protesting unlawful discrimination violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981. We apply the same standards to Title VII and § 1981 discrimination and retaliation claims. Smiley v. Columbia Coll. Chi., 714 F.3d 998, 1002 (7th Cir.2013). Before getting to the merits, we provide the district court procedural guidance. As noted, the court treated Mintz’s motion to vacate and motion to file a belated summary judgment response collectively as a Federal Rule of Civil Procedure 60(b) motion. But Rule 60(b) provides that district courts “may relieve a party or its legal representative from a final judgment, order, or proceeding” for the enumerated reasons. Fed.R.Civ.P. 60(b) (emphasis added). Thus the rule “applies only to ‘a final judgment, order, or proceeding.’” 11 Charles Alan Wright, et al., Federal Practice and Procedure Civil § 2852 (3d ed.1998). It does not limit a district court’s discretion to reconsider “an interlocutory judgment or order at any time prior to final judgment.” Id.; see Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir.2006) (noting that Rule 60(b), “by its terms limited to ‘final’ judgments or orders, is inapplicable to interlocutory orders” and that the district judge’s authority “to reconsider a previous ruling in the same litigation ... is governed by ... the law of the case”). When Mintz filed his motions to vacate and for leave to file a summary judgment response, no final judgment had been entered yet. Thus, Rule 60(b) was inapplicable and the district court had the discretion to reconsider its prior summary judgment ruling in light of Mintz’s belated, response. In any event, despite denying what it erroneously treated as a Rule" }, { "docid": "7399502", "title": "", "text": "require the denial of summary judgment”). In addition, paragraph 28 of Plaintiffs' 56.1 statements, which states that \"Defendants have failed to pay for attorney fees reasonably due and owing to Plaintiffs in this case,” contains a legal conclusion that is not appropriate in a statement of facts. See, e.g., Servin v. GATX Logistics, Inc., 187 F.R.D. 561, 562 (N.D.Ill.1999) (a party may not include legal opinions, legal arguments, or conclusions of law in its statement of facts in support of a motion for summary judgment); see L.R. 56.1(a) (a party moving for summary judgment shall file a \"statement of material facts” entitling it to judgment as a matter of law) (emphasis added). The reasonableness of attorneys fees to be awarded in this case, as well as what attorneys fees are due and owing, are issues of law that are central to this litigation. Nonconformity with the Local Rules and the standing orders of the Court is not without consequence. The Seventh Circuit has “repeatedly held that a district court is entitled to expect strict compliance with Rule 56.1.” Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004) (citing Bordelon v. Chi. School Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir.2000)). \"A district court does not abuse its discretion, when, in imposing a penalty for a litigant’s non-compliance with Local Rule 56. 1, the court chooses to ignore and not consider the additional facts that a litigant has proposed.\" Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir.2005). Accordingly, this Court will not consider portions of Plaintiff’s submissions that are not properly set forth in a Statement of Additional Material Facts or constitute legal conclusions. . The Court notes, however, that it addresses the Board's objection to the 4.0 duplicate hours billed for Lane's preparation in Section VII supra. . Although Plaintiffs state in their response to the Board’s Statement of Material Facts # 41 that inclement weather increased travel times on these days, Plaintiffs fail to properly include these facts in a statement of additional facts as they must under Local Rule" }, { "docid": "19720387", "title": "", "text": "Notes A and B. These amendments altered the payment schedules for the indebtedness to Fondmetal/USA’s benefit, but provided for the immediate accrual of interest on all principal amounts outstanding under the renewal notes. Fondmetal made no payment on Note C, and SVB commenced this suit to recover the monies due. Discussion All doubts must be resolved and all reasonable inferences must be drawn in favor of the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); United States v. One Tintoretto Painting Entitled “The Holy Family with Saint Catherine and Honored Donor”, 691 F.2d 603, 606 (2d Cir.1982). This Circuit has long endorsed a policy of allowing the development of a full factual record through trial of the issues presented, a policy which is limited by the grant of summary judgment. See Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir.1975). The burden faced by the moving party should not, however, be made so insurmountable as to vitiate summary judgment relief. If the opponent to the summary judgment motion fails to allege that there are substantial facts in dispute, his reliance on an unsubstantiated denial of the accuracy of the movant’s affidavits is insufficient to controvert a motion for summary judgment. Project Release v. Provost, 722 F.2d 960, 968 (2d Cir.1983); see WIXT Television, Inc. v. Meredith Corp., 506 F.Supp. 1003 (N.D.N.Y.1980). Fondmetal/USA has interposed legal defenses against the collection on the promissory note, and has requested postponement of the motion pursuant to Rule 56(f) asserting the need for added discovery of information under SVB’s control. Rule 56(f) requires the court to ensure that the parties have a reasonable opportunity to make their record complete before ruling on a motion for summary judgment. Berne Street Enterprises v. American Export Isbrandtsen Co., 289 F.Supp. 195 (S.D.N.Y.1968). However, Rule 56(f) is not a shield against all summary judgment motions. Litigants seeking relief under the Rule must show that the material sought is germane to the defense, and that it is neither cumulative nor speculative. Quaker Chair Corp. v." }, { "docid": "21441599", "title": "", "text": "complaint itself to see whether it is formally sufficient to state a claim”). And the Eleventh Circuit’s cases reflect tension within that circuit on this issue. Compare Rex v. Monaco Coach, 155 Fed.Appx. 485, 486 (11th Cir.2005) (per curiam) (unpublished) (holding that dismissal for failure to comply with a local rule requiring a timely response is appropriate “only as a last resort” when there is a pattern of delay or willful contempt and lesser sanctions would not suffice), with Magluta v. Samples, 162 F.3d 662, 664 (11th Cir.1998) (noting that “the district court could have dismissed the action” under a similar local rule). Cf. Tobel v. City of Hammond, 94 F.3d 360, 362 (7th Cir.1996) (recognizing in the context of failure to respond to a motion for judgment on the pleadings that “the district court clearly has authority to enforce strictly its Local Rules, even if a default results”). Our sister circuits- recognize a similar tension between Local Rule 7(b) and the Federal Rules in the related context of summary-judgment. See Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C.Cir.2015) (Griffith, J., concurring) (collecting cases). Federal Rule 56 places the burden of persuasion on the movant by requiring him to “show[ ]” that he is entitled to summary judgment. Fed.R.Civ.P. 56. This is why a court may grant summary judgment “only if the motion and supporting materials ... show that the movant is entitled to it.” Fed.R.Civ.P. 56(e) advisory committee’s note. There may be a problem when a district court applies its local rules to grant a motion for summary judgment even if the movant has not met that burden under Rule 56 — a burden that does not shift simply because the non-moving party fails to oppose the motion. See Grimes, 794 F.3d at 95-98 (Griffith, J., concurring) (highlighting the tension between this principle and our holding in FDIC v. Bender, 127 F.3d 58, 68 (D.C.Cir.1997)). In line with that concern, the Advisory Committee Note that accompanies Rule 56 explains that “summary judgment cannot be granted by default even if there is a complete failure to respond to" }, { "docid": "11518923", "title": "", "text": "56.1 Statement of Undisputed Material Facts have been abbreviated to “PI. Resp. Corp. 56.1,” and citations to Plaintiff’s Reply to Defendants’ Local Rule 56.1(b) (3)(c) Statement of Additional Facts in Opposition to Wachovia’s Motion for Partial Summary Judgment have been abbreviated to \"PI. Rep. Def. 56.1(b).” Citations to Defendants Neuhauser and Greenblatt’s Local Rule 56.1(b)(3) Response in Opposition to Plaintiff's Motion for Partial Summary Judgment have been abbreviated to \"Neuhauser Resp. 56.1(b),” The Individual and Corporate Defendants' Replies to Wacho-via's Local Rule 56. 1(b)(3) (c) Statements of Additional Undisputed Materia Facts have been abbreviated to “Ind. Rep. 56.1” and \"Corp. Rep. 56.1”, respectively. . Additionally, Paragraphs 32-34 of the ASUF fail to comply L.R. 56.1(a) requiring that the statement of facts consist of \"short numbered paragraphs.\" For example, the \"statement” in paragraph 32 is nearly two pages long. Because of the important function local rules like Rule 56.1 serve in organizing the evidence and identifying disputed facts, a district court has discretion to require strict compliance with those rules. See Koszola v. Bd. of Educ., 385 F.3d 1104, 1109 (7th Cir.2004); Bordelon v. Chi. School Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir.2000); Wal-dridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). . According to Wachovia, Paragraphs 1-9 of its ASUF and Paragraphs 23 and 24 of its Response to the Individual Defendants' Statement of Facts are supportive of its promissory fraud claim and are distinct from Wachovia’s allegations associated with the account intake forms. Ind. Rep. 56.1 ¶ 5-8; PL Resp. Ind. 56.1 ¶¶ 23-24; Resp., p. 5. In reality, only paragraphs 5-9 and 23 and 24 appear to coincide with Wachovia’s remaining fraud claims. . Wachovia voluntarily dismissed its securities fraud claim and sought to amend the common law fraud claim “so as to focus on misrepresentations made by Defendants when the Accounts were opened and not on the securities allegations.” Resp., p. 4. It is precisely those \"misrepresentations” that this Court struck on the basis that they are new facts pleaded for the first time during disposi-tive motions. . The Loop Margin Agreement" }, { "docid": "22434291", "title": "", "text": "to identify the employees and the certificates as part of initial disclosure. See United States Dist. Court for the Central Dist. of Cal. Local R. 6.2; see also Fed.R.Civ.P. 26(a)(1). Pfingston, however, cannot show any resulting prejudice. Pfingston does not claim that he was unfairly surprised by the discovery, such that he was not able to oppose summary judgment adequately. At best, the district court should have barred the MTA from using this information at summary judgment. See Local R. 6.3.2; see also Fed.R.Civ.P. 37(c)(1). However, Pfingston’s action fails apart from any evidence submitted by the MTA. Pfingston simply has not proffered sufficient evidence to make out a prima facie case. The MTA would be entitled to summary judgment even it were barred from using the challenged evidence at summary judgment. Therefore, the MTA’s alleged delay in disclosure is irrelevant. See Yeti By Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). IV Pfingston claims that the district court improperly denied his Rule 56(f) motion for a continuance of the summary judgment motions pending additional discovery. Pfingston filed this action in September 1997. He waited nearly three years to commence discovery, on July 27, 2000, only two weeks prior to the discovery cutoff set by the court’s pretrial order. Pfingston sought to depose three MTA employees as well as to inspect the tanks and detection system. He noticed the inspection for August 3 and the depositions for August 4. The MTA immediately objected, explaining that Pfingston’s proposed dates did not comply with the time requirements of Federal Rule Civil Procedure 34(b). Pfingston did not respond to the MTA’s objection and failed to move to compel discovery. Instead, Pfingston filed a Rule 56(f) motion on August 21, 2000, only a week prior to the date of the summary judgment hearing. The court did not abuse its discretion in failing to grant Pfingston a continuance pending additional discovery. The failure to conduct discovery diligently is grounds for the denial of a Rule 56(f) motion. E.g., Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir.1989) (“A movant cannot" }, { "docid": "23011827", "title": "", "text": "does not so respond, summary judgment, if appropriate, shall be entered against the adverse party, (emphasis added). As explained by the Supreme Court in Adickes v. S.H. Kress & Co., 398 U.S. 144, 160-61, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the burden on the nonmovant to respond arises only if the summary judgment motion is properly “supported” as required by Rule 56(c). Accordingly, summary judgment is “appropriate” under Rule 56(e) only when the moving party has met its initial burden of production under Rule 56(c). If the evidence produced in support of the summary judgment motion does not meet this burden, “summary judgment must be denied even if no opposing evidentiary matter is presented.” Id. at 160, 90 S.Ct. 1598 (quoting Fed.R.Civ.P. 56 advisory committee notes to the 1963 amendments) (emphasis added). If the nonmoving party fails to respond, the district-court may not grant the motion without first examining the moving party’s submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and the moving party is entitled to judgment as a matter of law. If it has not, summary judgment is not appropriate, for “[n]o defense to an insufficient showing is required.” Id. at 161, 90 S.Ct. 1598. B. By failing to file a response within the time specified by the local rule, Murray waived the right to file a response and confessed all facts asserted and properly supported in the summary judgment motion. But Murray’s waiver did not relieve the court of its duty to make the specific determinations required by Fed. R.Civ.P. 56(c). Alternatively, the court can enter judgment as a sanction if warranted. See Reed v. Nellcor Puritan Bennett, 312 F.3d 1190, 1195-96 (10th Cir.2002). While the facts of this case likely support the district court’s entry of sanctions, the court did not consider the Meade factors and dismissed the action solely based on Murray’s failure to comply with a local rule. We reverse and remand with directions .to vacate the May 16, 2001 minute order granting Defendants’ summary judgment motions. We further instruct" }, { "docid": "7399503", "title": "", "text": "with Rule 56.1.” Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004) (citing Bordelon v. Chi. School Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir.2000)). \"A district court does not abuse its discretion, when, in imposing a penalty for a litigant’s non-compliance with Local Rule 56. 1, the court chooses to ignore and not consider the additional facts that a litigant has proposed.\" Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir.2005). Accordingly, this Court will not consider portions of Plaintiff’s submissions that are not properly set forth in a Statement of Additional Material Facts or constitute legal conclusions. . The Court notes, however, that it addresses the Board's objection to the 4.0 duplicate hours billed for Lane's preparation in Section VII supra. . Although Plaintiffs state in their response to the Board’s Statement of Material Facts # 41 that inclement weather increased travel times on these days, Plaintiffs fail to properly include these facts in a statement of additional facts as they must under Local Rule 56.1 in order to give the Board an opportunity to respond and allow the Court to determine if these facts are undisputed. See LR 56.1(b)(3)(C) (explaining that the opposing party’s response must contain a separate statement \"of any additional facts that require the denial of summary judgment”). Thus, as explained in footnote 1 infra, the Court disregards Plaintiffs' additional factual assertions about the weather on the dates in question. . The Board also notes in its Motion for Summary Judgment an objection to 0.10 hours for drafting an email requesting mediation. Because this email and the corresponding fee are not included in either party’s statement of facts, the Court does not address the objection. . From January 2009 to the present, the prevailing prime rate has been 3.25, which is therefore the rate that applies here. See http://www.federalreserve.gov/releases/hl5/ update/." }, { "docid": "2591402", "title": "", "text": "RIPPLE, Circuit Judge. After her discharge, Susan A. Schneiker filed this action against her former employer, Fortis Insurance Company (“Fortis”), for violating the Americans with Disabilities Act (the “ADA”). In her complaint, Ms. Schneiker alleged that Fortis failed to accommodate her alcoholism and severe depression and discharged her because of these impairments. The district court granted summary judgment for Fortis; Ms. Schneiker now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court. I Because the district court granted summary judgment, our review of that judgment is de novo. See Ross v. Indiana State Teacher’s Ass’n Ins. Trust, 159 F.3d 1001, 1012 (7th Cir.1998), cert. denied, — U.S.-, 119 S.Ct. 1113, 143 L.Ed.2d 109 (1999). In our review, we consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party, Ms. Schneiker. See Skorup v. Modern Door Corp., 153 F.3d 512, 514 (7th Cir.1998). Summary judgment is appropriate when the pleadings, depositions, and other materials in the record show that there is no disputed material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In granting summary judgment, the district court relied primarily on the proposed findings of fact submitted by Fortis because Ms. Schneiker had failed to comply with Local Rule 6.05, which required the submission of her own proposed findings of fact in her response to Fortis’ summary judgment motion. Specifically, Local Rule 6.05(b) requires the non-moving party to submit “[a] specific response to the movant’s proposed findings of fact, clearly delineating only those findings to which it is asserted that a genuine issue of material fact exists.” E.D. Wis. R. 6.05(b)(1). To comply with the local rule, the proposed findings of fact must refer to any contested findings of fact by paragraph number and must cite evidentiary materials to support all factual propositions, whether contested or not. The district court found that the proposed findings" }, { "docid": "16549081", "title": "", "text": "them “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). More caution should be exercised in affirming the grant of summary judgment in a discrimination case because “smoking gun” evidence of discriminatory intent is rare and most often must be inferred. See Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001). Yet, this drastic remedy may be proper in such a case where the moving party has submitted facts sufficient to show that the non-moving party’s claim has no merit, and the non-moving party’s attempts to rebut the movant’s facts consist only of “mere allegations or denials” of the facts asserted by the movant. Fed.R.Civ.P. 56(e). II Notice Under Rule 56.2 Forsyth was proceeding pro se at the time the motion for summary judgment was granted, but was represented by counsel when the motion was made and for 13 months thereafter. Rule 56.2 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York states Any represented party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a “Notice To Pro Se Litigant Opposing Motion for Summary Judgment” [ (notice) ] in the form indicated below. Fed. Proc. Rules Service, Dist. Court for the S. & E. Dist. of N.Y., Rule 56.2. The Rule goes on to specify the necessary content of the notice, including, for example, a warning to pro se non-movants that they “must submit evidence, such as witness statements or documents, countering the facts asserted by the [movant] and raising issues of fact for trial.” Id. The Board of Judges of the Southern and Eastern Districts of New York adopted Local Civil Rule 56.2 on November 18, 1999. The adoption of this rule came in response to our decision in Vital v. Interfaith Med. Ctr., where we reiterated the rule regarding notice to pro se litigants: “ ‘[t]he failure óf a district court to apprise [pro se] litigants of the consequences" }, { "docid": "8426404", "title": "", "text": "Marks’ supplemental affidavit as “clearly late.” The court then entered summary judgment in favor of AstraZeneca, concluding that the firm was shielded by Indiana’s learned intermediary doctrine, that without Dr. Marks’ testimony Ziliak had identified no evidence suggesting that AstraZeneca’s warnings were inadequate, and that even if Dr. Marks’ testimony was considered, the warning accompanying Pulmicort was consistent with his opinion of what the warning should have said. Ziliak appeals, contending that the district court abused its discretion in rejecting her evidentiary submission as untimely, that genuine issues of material fact exist concerning whether the warnings accompanying Pulmicort were inadequate, and that the district court misapplied the law. We review de novo the district court’s order granting summary judgment, viewing the facts and making all reasonable inferences that flow from them in the light most favorable to the non-moving parties. Nelson v. Sandoz Pharm. Corp., 288 F.3d 954, 962 (7th Cir.2002). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact for trial and that the moving parties are entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). We review the district court’s decision to disregard an affidavit submitted in support of summary judgment for abuse of discretion. Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir.1998). At the outset, we think it worth noting that a party’s failure to comply with summary judgment evidentiary requirements is traditionally remedied not by dismissing the case, but by excluding the non-conforming submission and deeming the opposing party’s proposed findings of fact admitted and then determining whether those facts entitle the moving party to judgment as a matter of law. E.g., Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 992 (7th Cir.2002); Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1178 (7th Cir.2001); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). That said, even if we ignore the untimeliness of Ziliak’s submission and consider Dr. Marks’ testimony, we can dis cern no genuine" }, { "docid": "23109584", "title": "", "text": "Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). Specifically as to Local Rule 56.1, “[w]e have ... repeatedly held that a district court is entitled to expect strict compliance with [Local] Rule 56.1.” Id. (citing Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir.2000) and Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994)). Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate “statement ... of any additional facts that require the denial of summary judgment.” Local Rule 56.1(b)(3)(B); see also Ammons, 368 F.3d at 817; Smith v. Lamz, 321 F.3d 680, 682 n. 2 (7th Cir.2003); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1312 (7th Cir.1995). A district court does not abuse its discre tion when, in imposing a penalty for a litigant’s non-compliance with Local Rule 56.1, the court chooses to ignore and not consider the additional facts that a litigant has proposed. Midwest Imports, 71 F.3d at 1316. Indeed, as we have stated on a number of occasions, “[a] local rule of a federal district court is written by and for district judges to. deal with the special problems of their court, and we are disposed therefore to give a district judge’s interpretation of his court’s local rules ... considerable weight.” Id. Cichon failed to file a statement of additional facts in opposing Exelon’s motion for summary judgment, and 'admits in his brief that he only identified his proposed facts “in [his] response to [Exelon’s] statement of facts” rather than filing a separate statement of proposed facts. In defense of his failure to submit his own statement of additional facts, Cichon mistakenly takes the position that “[t]here was no need to make such a submission,” because the Northern District of Illinois’ Local Rule 56.1 does not require him to do so. However, as we have noted above, Local Rule 56.1 does require that he make such a submission, that is, as long as he wants the court to. consider his proposed “facts” when" }, { "docid": "19720388", "title": "", "text": "If the opponent to the summary judgment motion fails to allege that there are substantial facts in dispute, his reliance on an unsubstantiated denial of the accuracy of the movant’s affidavits is insufficient to controvert a motion for summary judgment. Project Release v. Provost, 722 F.2d 960, 968 (2d Cir.1983); see WIXT Television, Inc. v. Meredith Corp., 506 F.Supp. 1003 (N.D.N.Y.1980). Fondmetal/USA has interposed legal defenses against the collection on the promissory note, and has requested postponement of the motion pursuant to Rule 56(f) asserting the need for added discovery of information under SVB’s control. Rule 56(f) requires the court to ensure that the parties have a reasonable opportunity to make their record complete before ruling on a motion for summary judgment. Berne Street Enterprises v. American Export Isbrandtsen Co., 289 F.Supp. 195 (S.D.N.Y.1968). However, Rule 56(f) is not a shield against all summary judgment motions. Litigants seeking relief under the Rule must show that the material sought is germane to the defense, and that it is neither cumulative nor speculative. Quaker Chair Corp. v. Litton Business Systems, Inc., 71 F.R.D. 527, 533 (S.D.N.Y.1976). “A ‘bare assertion’ that the evidence supporting a plaintiff’s allegation is in the hands of the defendant is insufficient to justify a denial of a motion for summary judgment under Rule 56(f).” Contemporary Mission, Inc. v. U.S. Postal Service, 648 F.2d 97, 107 (2d Cir.1981). Fondmetal/USA’s three major opposition claims will be considered in light of these summary judgment and Rule 56(f) standards. Conversion claim Fondmetal/USA claims that SVB .is not entitled to collect on the promissory note because it assisted in, or at least had knowledge of, an alleged conversion of certain of Fondmetal/USA’s European accounts receivable by Rathaus’ estranged partner Lofberg and Fondmetall/AB. According to Rathaus, SVB should bear responsibility for the conversion because it was aware that the conversion was taking place and knew that the accounts receivable were the assets which Fondmetal/USA was liquidating to pay the loan installments. Rathaus charges that SVB was Lofberg’s partner in the negotiation of Note A and the related documents, including the Settlement Agreement, which provided" }, { "docid": "15774040", "title": "", "text": "422 (2d Cir.1989) (“Hudson”) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985)). In the present case, the affidavit of plaintiffs attorney, Peter Pryor, contains a general, one-sentence statement that provides no hint at why plaintiff cannot oppose summary judgment without discovery. See Pryor Aff., at ¶ 7. Clearly, such a general, vague, and conclusory request— bereft of reason — is insufficient to satisfy the specific requirements of Rule 56(f). See Fed.R.Civ.P. 56(f); see also Hudson 891 F.2d at 422 (listing four criterion that must be met); Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994) (“Rule 56(f) is not a shield against all summary judgment motions. Litigants seeking relief under the rule must show that the material sought is germane to the defense....”) (internal quotations omitted); United States v. Private Sanitation Ind. Ass’n of Nassau/Suffolk, Inc., 995 F.2d 375, 377 (2d Cir.1993) (affirming Rule 56(f) denial when affidavit did not describe “in specific terms evidence that might be forthcoming and would demonstrate that a genuine issue actually existed”). Although it is sometimes said that Rule 56(f) is a safeguard against premature grants of summary judgment and should generally be applied “with a spirit of liberality,” see 10A Charles A. Wright and Arthur R. Miller, Federal Praotioe and Prooedure: § 2740, at 532 (2d ed.1983), this principle has no application when a plaintiff has had ample opportunity for discovery or when, as here, a plaintiff fails to offer any explanation why discovery is needed to oppose summary judgment. Accordingly, because plaintiff has provided the Court with no basis from which to conclude that discovery is needed to present facts essential to justify her opposition to summary judgment, her Rule 56(f) request is denied. D. Request to Strike Defendants’ Affidavits and Exhibits Plaintiff next seeks to strike the defendants’ affidavits and the transcripts of the BOA hearings submitted in support of their motions for summary judgment. Turning first to the affidavits, plaintiff asserts that they are “hearsay and (that she) should have an opportunity to confront any defendant with respect to the contents" }, { "docid": "22400598", "title": "", "text": "material fact, the moving party must show that he is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Although the failure to respond may allow the district court to accept the movant’s factual assertions as true, see Local Civ. R. 56.2, the moving party must still establish that the undisputed facts entitle him to “a judgment as a matter of law,” see Champion, 76 F.3d at 486. Accordingly, we emphasize that courts, “in considering a motion for summary judgment, must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir.1993). We note too that Local Civil Rule 56.2 of the Southern and Eastern Districts of New York, which prescribes the notice to be provided to pro se litigants opposing summary judgment, is consistent with our holding. The notice must advise pro se litigants who oppose summary judgment that “[t]he claims you assert in your complaint may be dismissed without a trial if you do not respond to this motion.” Id. (emphasis added). This language does not embody a common law default principle, and to the extent that the provision might be construed to do so, it is axiomatic that the Federal Rules of Civil Procedure trump inconsistent interpretations of local rules. See 28 U.S.C. § 2071(a) (mandating that court rules remain consistent with general rules of practice and procedure); Fed.R.Civ.P. 83 (same); Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir.1989) (noting that “a district court cannot provide by local rule that a motion for summary judgment will be automatically granted when the opposing party fails to respond”). Our holding is also consistent with the law of our sister circuits. See, e.g., Jaroma, 873 F.2d at 20 (holding that “the district court cannot grant a motion for summary judgment merely for lack of any response by the opposing party, since the district court must review the motion and the supporting papers to determine wheth er they" }, { "docid": "23369695", "title": "", "text": "REAGAN, District Judge. Larry Boss worked as a general engineer for the H-S. Department of Housing and Urban Development (“HUD”) from 2002 to 2011. Pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII,” 42 U.S.C. §'2000e-16), he sued the HUD Secretary Lon theories of workplace discrimination (Boss' is an African-American), retaliation (for a prior EEOC discrimination complaint), and hostile work environment. The distinct court granted summary judgment against Boss, For the reasons set forth below, we affirm. I. Background Our review of the case requires some preliminary discussion regarding two matters. First, Boss, has challenged the district court’s application of Local Rule 56.1, which controls the presentation of evidence at the summary judgment stage. See N.D. Ill. L.R. 56.1.; Petty v. City of Chi., 754 F.3d 416, 420 (7th Cir.2014). The rule requires a movant to submit a statement of material facts consisting of enumerated, short, numbered paragraphs with specific references to the record. N.D. Ill. L.R. 56.1(a)(3). The non-movant counters with correspondingly numbered paragraphs summarizing the movant’s position, responses (with specific cites to the record), and a statement of any additional facts that support denial of summary judgment. N.D. Ill. L.R. 56.1(b)(3). The district court’s discretion to require strict compliance with Local Rule 56.1 has been upheld time and again. See Petty, 754 F.3d at 420; Benuzzi v. Bd. of Educ. of City of Chi., 647 F.3d 652, 654-55 (7th Cir.2011); Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1109 (7th Cir.2004); Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002). In comparing the district court’s thorough recitation of the facts to Boss’ Rule 56.1 submission, we find no abuse of discretion. Tellingly, Boss could not dredge up a single specific fact that the district court ignored that would have materially altered the Court’s Title VII analysis. Notably, litigants who -challenge a district court’s application of-the Northern District’s Local Rule 56.1 must point to a fact or facts that, (1) should have been considered under the local rule; (2) were not considered; and (3) are material to the" }, { "docid": "15547029", "title": "", "text": "intended form, we note that Waste Management’s Proposed Findings of Fact (PFOF) was a ten-page document containing sixty-five brief, numbered paragraphs. Anders’s response, however, was a sprawling sixty-five page argument that referenced Waste Management’s proposed findings only in passing. After reviewing his submission, the district court found that “[o]n the whole, Anders’[s] response is a disjointed, convoluted, and hopeless mess; his non-compliance with Rule 56.2(b) is more than substantial — it is total” Tr. Rec. 60 at 3 (emphasis in original). Under Civ. L.R. 56(e), the district court rejected Anders’s submitted response to the PFOF and held that there was no “genuine mate rial issue as to any proposed finding of fact to which no response is set out.” In other words, it adopted Waste Management’s proposed findings as the undisputed facts on record. Salvadori v. Franklin School Dish, 293 F.3d 989, 992 (7th Cir.2002); see Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994). We review the district court’s decision for an abuse of discretion, and find no error. See Koszola v. Bd. of Educ., 385 F.3d 1104, 1108 (7th Cir.2004) (citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004)). Additionally, Anders claims that the district court then went outside of the defendant’s legal arguments and proffered findings when granting summary judgment. Were this the case, he would be entitled to rely on the entire record here on appeal. See Nabozny v. Podlesny, 92 F.3d 446, 450 (7th Cir.1996) (finding district court erred in granting summary judgment on grounds and facts not offered by moving party). But the district court committed no such error. Anders appears to argue that because the Order granting summary judgment cited to evidentiary material beyond just the PFOF, e.g. “Drephal Dep. at 19,” that the lower court violated some categorical rule set forth in Nabozny. In Naboz-ny, however, we did not limit our review solely to the PFOF. Instead, we stated that “[i]f the court elects to rely on legal arguments and evidence not incorporated in, or submitted with, the summary judgment motion, the court is obligated to" } ]