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[ { "docid": "20301086", "title": "", "text": "debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.” 11 U.S.C. § 542(a). . \"When property seized prior to the filing of a petition is drawn into the Chapter 11 reorganization estate, the Service’s tax lien is not dissolved; nor is its status as a secured creditor destroyed. The IRS, under § 363(e), remains entitled to adequate protection for its interests, to other rights enjoyed by secured creditors, and to the specific privileges accorded tax collectors.” Id. . Since the only rents at issue here are the rents generated post-petition (i.e. future rents), it would be impossible for equitable title to have transferred to Cl Trust. As discussed below, without a pro tanto credit, equitable title does not transfer until the rents are applied to the debt. . See also Guardian Realty Group, 205 B.R. at 5 (“There is nothing to preclude a debtor from making what is in both form and substance an absolute assignment of rents. For example, if the mortgagor and the mortgagee agreed that certain tenants’ unpaid rents are assigned to the mortgagee with a credit of $10,000 to flow to the mortgagor, the mortgagor has clearly parted with ownership. The mortgagee bears all the risks if the rents go uncollected. If the rents actually collected exceed $10,000 the mortgagor has no right to the excess even after paying the mortgage debt in full. But where (as here or as in Jayson Realty and Commerce Bank) no provision is made for the debtor to get any credit for the rents until the mortgagee collects them, the 'assignment' of rents is in substance for security, not a passing of actual ownership.”) (emphasis in original). . See also Constable Plaza, 125 B.R. at 101-102 (“The issue as to whether or not an assignment of rents clause in a mortgage creates an absolute assignment of the rents upon the mortgage default, or merely an assignment for security purposes, is important in" } ]

[ { "docid": "18883249", "title": "", "text": "for mortgagees to enforce provisions calling for the assignment of rents. The Court’s interpretation of § 697.07 also receives support from existing case law. See generally In re Camelot Associates Ltd.., Partnership, 102 B.R. 161, 165 (Bankr.D.Minn.1989) (“Fla.Stat. § 697.07 makes all Florida assignments of rents into absolute transfers of the ongoing income stream, enforceable after the mortgagor’s default upon the mortgagee’s subsequent written demand”); In re Aloma Square, Inc. 85 B.R. 623, 625-26 (Bankr.M.D.Fla.1988) (prohibiting debtor’s use of cash collateral upon finding that after § 697.07 demand for turnover of rents, lender was not affected by the automatic stay, thereby implying that rents derived from property were not property of that debtor’s estate); Executive Square, Ltd. v. Delray Executive Square Ltd., 546 So.2d 434 (3d DCA 1989) (assignment of rents became absolute upon default and operative upon written demand). In reaching this result, the Court has considered and rejected the Debtor’s contention that the remaining text of § 697.07 supports an interpretation that it does not contemplate an absolute transfer of ownership rights in the rents. The pertinent language of § 697.07 provides that: Upon application by the mortgagee, a court of competent jurisdiction may require the mortgagor to deposit such rents in the registry of the court pending adjudication of the mortgagee’s right to the rents, any payments therefrom to be made solely to protect the mortgaged property and meet the mortgagor’s lawful obligations in connection with the property. Any undisbursed portion of said rents shall be disbursed in accordance with the court’s final judgment or decree. § 697.07, Fla.Stat. (1987). The Debtor’s argument is once again misplaced. The cited language contemplates a scenario in which the mortgagor refuses to turn over the rents after demand. In such case, the mortgagee has the ability to require the mortgagor to deposit the rents into the registry of the court pending adjudication of the mortgagee’s rights, a process which may ultimately take several months. The Court also rejects the Debtor’s argument that notwithstanding the foregoing interpretation of § 697.07, the equities of the case authorize the Court to allow the" }, { "docid": "11712710", "title": "", "text": "mortgaged premises. 554.232 Assignment of rents; validity. Sec. 2. The assignment of rents, when so made, shall be a good and valid assignment of the rents under any lease or leases in existence or coming into existence during the period the mortgage is in effect, against the mortgagor or mortgagors or those claiming under or through them from the date of the recording of such mortgage, and shall be binding on the tenant under the lease or leases upon service of a copy of the instrument under which the assignment is made, together with notice of default as required by section 1. Mich. Comp. Laws Ann. Sections 554.231 and 554.232(West 1988). As set forth in the Michigan statute, complete enforcement of an assignment of rents occurs when five steps have been taken by the mortgagee: (1) execution of the assignment of rents; (2) recording of the assignment of rents; (3) default under the Mortgage; (4) recording of notice of default; and (5) service of the recorded notice of default and the instrument creating the assignment of rents upon the tenants. In re Mount Pleasant Ltd. Partnership, 144 B.R. 727 (Bankr.W.D.Mich.1992). There is no dispute that Connecticut Mutual has taken all the necessary steps to enforce its assignment of rents. The Debtor argues that despite the fact that Connecticut Mutual took all the requisite steps to enforce its assignment of rents, the Rents remain property of the estate. Consequently, Connecticut Mutual only retains a security interest in the Rents. The Debtor relies primarily upon United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 516 (1983), for its proposition. The Debtor alludes to its equitable interest in the Rents and argues that Whiting Pools applies. Connecticut Mutual instead relies upon In re Mount Pleasant Ltd. Partnership, 144 B.R. 727, 734 (Bankr.W.D.Mich.1992), for the proposition that under Michigan law, once a creditor has taken the requisite steps to enforce the assignment of rents, ownership of the Rents is transferred from the mortgagor to mortgagee. This Court agrees with Connecticut Mutual’s interpretation of Michigan law for the following reasons." }, { "docid": "14617145", "title": "", "text": "the right to the rents and was treated as being absolute for as long as the mortgage was in place. The court pointed out that the original recordation of the mortgage constituted the perfection of the mortgagee’s interest in the rents by rendering it superior to subsequently recorded liens or transfers and that the act of taking possession of the premises (including constructive possession) constituted the enforcement of the mortgagee’s rights against the property. The Third Circuit’s opinion supports the inference, however, that rents subject to a valid assignment received during the pre-enforcement period (i.e., before the mortgagee takes constructive possession of the premises by notification to the tenants) should be considered cash collateral under 11 U.S.C. § 363. Before a creditor takes possession of the rents, even after an event of default has occurs, Pennsylvania law holds that the rents continue under the dominion of the mortgagor to be used at its direction. Miners Savings Bank, 140 Pa.Super. at 11-12, 12 A.2d at 813-14. Courts have thus held that under the Bankruptcy Code rents at the pre-enforcement stage should be considered cash collateral, In re Foxcroft Square Co., 178 B.R. 659 (E.D.Pa.1995); Streiker & Co. v. SeSide Co. (In re SeSide Co.), 152 B.R. 878 (E.D.Pa.1993), which a debtor may use only upon reaching an agreement with the creditor or after obtaining a court finding that the creditor’s interest in the rents is adequately protected. See 11 U.S.C. § 363(c)(2)(A) & (B). With these principles in mind, I am ready to address the use of the rents in the present case. First, I believe the law allows the Debtor leeway to draft a plan that takes account of the present use of the rents by the mortgagee-in-possession to amortize the balance owing on the mortgage. In the few instances in which courts have directly addressed the issue, they have held that debtors may not use assigned rents to “fund a plan” of reorganization because the money is not part of the bankruptcy estate. While the cases do not articulate what is meant by stating that the rents may not" }, { "docid": "10708982", "title": "", "text": "no interest whatsoever in the rents. Herein lies the crucial issue on this appeal, which has not been directly addressed by the parties: many of the cases suggest that the distinction between absolute assignments and assignments as additional security is relevant only to the manner in which the security interest must be perfected by the creditor. They do not hold (with few exceptions) that the creditor thereby gains more than a security interest in the rental income. Travelers Indem. Co. v. Grant Assocs. (In re Grant Assocs.), No. M-47 (RJW), 1991 WL 21228, at *4 (S.D.N.Y. Feb.5, 1991) (emphasis original). Thus, even if § 541(a)(6) does not place post-petition rents from estate property in the debtor’s bankruptcy estate, the debtor nonetheless retains some minimal interest in the rents sufficient to make those rents “property of the estate” under § 541(a)(1), which consists of “all legal or equitable interests of the debtor in property as of the commencement of the case.” This is especially true where, as here, the Debtor is still in possession of the Rents because bare possession, alone, constitutes one stick in the bundle of sticks that comprise property rights. See, e.g., Severance v. Patterson, 566 F.3d 490, 512 (5th Cir.2009) (acknowledging that “physical possession” is one of the “crucial stick[s] from the bundle of property rights”). Additionally, an “absolute” assignment of rents that occurs in the context of a mortgage loan cannot possibly transfer fee title because such assignments terminate upon payment in full of the debt. See, e.g., Lyons, 193 B.R. at 648 (“The fact that the assignments are conditioned upon default and will terminate upon satisfaction of the debt indicates that they ... are not an absolute transfer of the Debtors’ interest in the rents to the Bank.”); In re Bethesda, 117 B.R. at 207 (“The Assignment ends upon repayment of the loan. This trigger for termination of the assignment is identical to the trigger which would terminate and release a security interest. Absent a gift to the Borrower, which is not suggested, this is not a trigger one would expect to terminate absolute ownership.”);" }, { "docid": "18595194", "title": "", "text": "Trustee, on the other hand, armed with section 544 asserts that FmHA’s interest in the rents was not perfected prior to the petition and FmHA can not now claim an interest in the same superior to the Trustee’s status as a hypothetical lien creditor. Placing reliance upon the case of In re Gotta, 47 B.R. 198 (Bankr.W.D.Wis.1985) the Trustee submits that the automatic stay prevents FmHA from making a demand for rents post-petition and accordingly, its claim for the 1985 rents as contained within its objection to the Trustee’s February 1985 notice of intent to lease for the 1985 season is invalid. The facts in Gotta are, in at least one respect, significantly different from the facts at bar. The assignment of rents clause in Gotta was, by its terms, to become effective only upon the mortgagee taking possession of the premises. Id. at 200. The automatic stay prevented the mortgagee from taking actual possession of the property, thus preventing the assignment of rents clause from becoming effective. FmHA’s assignment of rents clause in the present instance contains no limitation; neither the specific language of the clause itself nor North Dakota case law requires actual possession as a prerequisite to enforcing the assignment of rents clause. As of the date of the Chapter 7 bankruptcy petition the Trustee became accountable for all property of the estate; such property by virtue of section 541 would include the subject farmland now under lease. The Trustee by virtue of his authority had the power to lease the property consistent with appropriate business practices. Under section 541, however, the estate’s interest in the property is limited to the same extent it was limited in the hands of the Debtor except as enhanced by the Trustee’s avoiding powers. See generally, In re N.S. Garrott & Sons, 772 F.2d 462 (8th Cir.1985). Hence, the Trustee has a present right to post-petition rents subject to whatever pre-petition rights the mortgagee had, providing those rights can survive the Trustee’s avoiding powers. The Trustee, invoking section 544 argues that as a hypothetical lien creditor he can assume the identity" }, { "docid": "14617151", "title": "", "text": "assumption of possession. Randal, 306 Pa. at 1, 158 A. at 865-66; Bulger, 101 Pa.Super. at 176-77. Indeed, where a mortgagee assumes actual possession of premises the debtor would not even be in a position to enter into leases with new tenants because the debtor would be out of the property. By contrast, the mortgagee in the present case did not take actual possession of the premises. The Bank opted instead to take constructive possession by sending notification of the assignment to the tenants then in place and requesting direct payment of the rents. Consequently, the Debtor remained in actual physical possession of the property and retained the ability to lease units to new tenants. Ordinarily, outside of bankruptcy, it would be fruitless for a debtor to enter into new leases because there would be nothing to prevent the mortgagee from sending notification of the rent assignment to the new tenants and gain constructive possession of their units as well. In this case, however, the intervention of bankruptcy leads to a different result. Following the bankruptcy filing, the automatic stay, 11 U.S.C. § 362(a), came into play to enjoin the Bank from further action to enforce its rent assignment against the Debtor or his property. The Bank is thus prohibited, without obtaining relief from the stay, from sending notification of the assignment to new tenants and assuming constructive possession of their units. For that reason, rents paid under postpetition leases are not the property of the Bank pursuant to the assignment of rents. However, that conclusion does not provide a complete answer to the question of whether the Debtor is entitled to use the rents himself. In Mountain View Village, 5 F.3d at 39, the Third Circuit noted that an interest in rents is perfected by the recordation of an assignment and enforced by taking possession of the property. Id. Applying that decision, district and bankruptcy courts have thus concluded that rents paid in the interim period between perfection and enforcement become cash collateral in bankruptcy. Foxcroft Square Co., 178 B.R. at 659; SeSide, 152 B.R. at 878. Pursuant to" }, { "docid": "5502830", "title": "", "text": "rents was deemed proper notice); In re Fluge, 57 B.R. 451 (Bankr.D.N.D.1985) (an objection to the trustee’s notice of intent to lease the property was sufficient). Home Savings makes no assertion that it gave pre-petition notice pursuant to section 546 of its intention to perfect its security interest in rents. It was not until the filing of the present action that Home Savings effectively gave notice in these bankruptcy proceedings, long after the Debtors’ collection of the medicaid funds. Late perfection under section 546 does not give a creditor any rights over amounts collected prior to the late perfection. In re Southern Gardens, Inc., 39 B.R. 671 (Bankr.S.D.Ill.1982) (secured creditor found entitled to post-petition rents, but only after time of demand for sequestration). Consequently, the filing of this adversary proceeding is insufficient, standing alone, to perfect the security interest in the funds collected post-petition by the Debtors. Instead, Home Savings claims that its pre-petition action in asking for a receiver in the state court proceedings was sufficient to perfect the Assignment from Woodstock under paragraph 24.2 of the Lease. Several courts have discussed the type of affirmative action that must be taken by a mortgagee to perfect an assignment of rents when the mortgagor has filed a bankruptcy petition. In a leading case under the former Bankruptcy Act, Judge Merrick stated in In re Michigan Avenue Nat. Bank, 2 B.R. 171 (Bankr.N.D.Ill.1980): We hold that the Illinois law is, and for some time has been, that the mortgagee must be in actual possession in order to be entitled to rents.62 62. As used here actual possession is intended to include actual possession by the mortgagee and any of his agents as well as a receiver appointed with power to collect rents. This possession would commence with the entry of an appropriate order of court and would not be dependent upon physical presence on the premises. 2 B.R. at 185. Judge Merrick held that a mortgagee with an interest in property would have to obtain relief from the automatic stay and obtain possession of the realty before he would be entitled" }, { "docid": "10708981", "title": "", "text": "appropriately, ‘Mickey Mouse.’ It’s still a lien.... ”). The Fifth Circuit has also used the term “absolute” interchangeably with “contingent present assignments.” See id. at 1035-36. The Fifth Circuit has distinguished collateral assignments from absolute assignments in the following manner: A contingent present assignment immediately transfers legal title to rents to the mortgagee but the mortgagor continues to enjoy the rents until the occurrence of a specified condition — usually default. Upon the occurrence of the specified condition, the mortgagee receives the right to enjoy the rents (in addition to the legal title he already possessed). Id. at 1036 n. 2. Based on this reasoning, an absolute assignment leaves the debtor with, at the very least, a possessory interest in the rents before an event of default. As the District Court for the Southern District of New York has reasoned, [T]he finding that the assignment was absolute does not necessarily compel the conclusion, as assumed by both parties, that the lender thereby holds more than a security interest in the rents or that Debtor retains no interest whatsoever in the rents. Herein lies the crucial issue on this appeal, which has not been directly addressed by the parties: many of the cases suggest that the distinction between absolute assignments and assignments as additional security is relevant only to the manner in which the security interest must be perfected by the creditor. They do not hold (with few exceptions) that the creditor thereby gains more than a security interest in the rental income. Travelers Indem. Co. v. Grant Assocs. (In re Grant Assocs.), No. M-47 (RJW), 1991 WL 21228, at *4 (S.D.N.Y. Feb.5, 1991) (emphasis original). Thus, even if § 541(a)(6) does not place post-petition rents from estate property in the debtor’s bankruptcy estate, the debtor nonetheless retains some minimal interest in the rents sufficient to make those rents “property of the estate” under § 541(a)(1), which consists of “all legal or equitable interests of the debtor in property as of the commencement of the case.” This is especially true where, as here, the Debtor is still in possession of the" }, { "docid": "4756830", "title": "", "text": "would neglect the mortgaged property (especially with paying tenants) in the hope of saving a few dollars prior to foreclosure. It is, however, conceivable that a mortgagee would take this \"hard line\" position in an attempt to coerce its mortgagor to surrender the mortgaged property to it. Such draconian tactics are, for better or worse, a reality of the business world. In this instance, Lincoln has certainly bargained for this leverage and, in light of its properly recorded Rent Assignment and its pre-petition demand on the tenants, may now wield it over the Debtor notwithstanding the Debtor’s bankruptcy filing. See Mountain View, supra, 5 F.3d at 38-39; and Union Meeting I, 160 B.R. at 765-67. . The prudent owner standard is employed in order to protect the mortgagor's equity or remainder interest. This consideration is particularly relevant when the mortgagee intends to liquidate its debt through the on-going operations of the property, at which point it would be obligated to return the property to the mortgagor. Myers-Macomber, supra, 271 Pa.Super. at 489, 414 A.2d at 359-60 (\"If the mortgagor should avoid foreclosure by paying off the mortgage debt while the mortgagee is in control of the property, ... the mortgagee must surrender possession to the mortgagor, for the mortgagor has retained his title to the real estate throughout the mortgagee's occupancy.\"). When there is no equity in the property, the underlying debt is nonrecourse, and the mortgagee intends to collect rents only until it can obtain title to and sell the property, as is the case with Lincoln, then the policy concerns giving rise to the prudent owner standard are not implicated. But see In re 499 W. Warren Street Associates, Ltd. P., 142 B.R. 53, 57 (Bankr.N.D.N.Y.1992) (“The ... use of project rents [by the debtor/property owner] is not proscribed where the debtor's sole asset is the collateral, and the creditor is undersecured.\"). . See also 24 P.L.E. 559, 562-63, 570 (1960) (\"If the mortgagee was in possession or collecting rents, he may take credit for his payment [of the property taxes] in accounting for the profits.... A mortgagee" }, { "docid": "18734672", "title": "", "text": "preference. Id. at 38. The court addressed the issue of whether the mortgagee held title to, or merely a security interest in, the rents. It held that, since Pennsylvania is a “title state,” “[t]he rents are not property of the debtor’s estate and are not available for use in a plan of reorganization.” Id. at 38. Like the mortgagee in Mountain View, Lincoln enforced its rights under the Assignment of Rents and notified all tenants in the Property to pay their rent directly to Lincoln prior to the Petition Date. Thus, the rents belong to Lincoln, not the Debtor, and they cannot be used in the Debtor’s Plan. The Debtor argues that the conclusions reached as to the parties’ rights to rents of Mountain View are not applicable to this case because (1) Lincoln consented to the use of cash collateral, while the mortgagee in Mountain View did not give any such consent; (2) Lincoln served notice to the tenants to the payments to it within the 90-day period before the bankruptcy case was filed, while, in Mountain View, the notice was served more than 90 days before the ease was filed; and (3) Lincoln only had constructive possession of the Property, while, in Mountain View, the mortgagee took actual possession of the property. We do not believe that Mountain View is distinguishable from the instant case, as the facts now stand. As noted at page 762 supra, Lincoln’s consent to the Debtor’s use of cash collateral expired by its own terms on August 5, 1993. We perceive nothing in the reasoning of Mountain View to suggest the fact that the mortgagee took actual possession of the property impacted on the court’s result. Compare In re Wynnewood House Associates, 121 B.R. 716, 721-23 (Bankr.E.D.Pa.1990) (a mortgagee obtains constructive possession of rents upon making a demand for payment of same upon the tenants). The significance of Lincoln’s sending the crucial demand notice to tenants within the 90-day preference period is likewise of no present consequence. The fact that a creditor’s action is voidable as a preference does not render that action" }, { "docid": "11712711", "title": "", "text": "of rents upon the tenants. In re Mount Pleasant Ltd. Partnership, 144 B.R. 727 (Bankr.W.D.Mich.1992). There is no dispute that Connecticut Mutual has taken all the necessary steps to enforce its assignment of rents. The Debtor argues that despite the fact that Connecticut Mutual took all the requisite steps to enforce its assignment of rents, the Rents remain property of the estate. Consequently, Connecticut Mutual only retains a security interest in the Rents. The Debtor relies primarily upon United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 516 (1983), for its proposition. The Debtor alludes to its equitable interest in the Rents and argues that Whiting Pools applies. Connecticut Mutual instead relies upon In re Mount Pleasant Ltd. Partnership, 144 B.R. 727, 734 (Bankr.W.D.Mich.1992), for the proposition that under Michigan law, once a creditor has taken the requisite steps to enforce the assignment of rents, ownership of the Rents is transferred from the mortgagor to mortgagee. This Court agrees with Connecticut Mutual’s interpretation of Michigan law for the following reasons. Michigan law allows a mortgagee to exercise its entitlement to collect rents without requiring the mortgagee to first take possession of the mortgaged premises or that a receiver be appointed. Security Trust Co. v. Sloman, 252 Mich. 266, 233 N.W. 216 (1930). An assignment of rents is “not merely an incident to the right of the possession of land, but is a distinct remedy and additional security.” Id. at 273, 233 N.W. 216. The right of the mortgagee to collect rents ceases at the expiration of the period of redemption if the premises are not redeemed. Id. at 274, 233 N.W. 216. However, the mortgagor’s right of redemption is an interest in the future rents and not an interest in the present rents when the Mortgage is in default. In re Mount Pleasant, 144 B.R. at 737. Thus, the mortgagor no longer has any interest in the present rents once a default has occurred. Otis Elevator Co. v. Mid-America Realty Investors, 206 Mich.App. 710, 522 N.W.2d 732 (1994) (creditor could not garnish mortgagor’s interest in" }, { "docid": "13665404", "title": "", "text": "does nothing more than place the rents in the custody of the court until the rights of the parties have been determined. The appointment of a receiver merely denies the mortgagor-assignor the use of the rents pendente lite. But, the debtor’s ownership rights in the property, and in the rents stemming therefrom, are not altered by the appointment of a receiver. See Willows of Coventry, 154 B.R. at 962-63; Blech, 32 Ill.App.2d at 274, 177 N.E.2d at 650; Levin, 255 Ill.App. at 66. In this case, the assignment of rents merely provided Mass Mutual with the right to collect rents from the Property, but did not convey title to those rents. Nor did the appointment of the Receiver effect a conveyance of title to Mass Mutual. Rather, the appointment of the Receiver “did nothing more than deprive debtor its statutory right to possession of the property, ... its ownership interest continued.” Willows of Coventry, 154 B.R. at 962-63 (citations omitted). As the Bankruptcy Court for the District of Columbia stated in In re 5028 Wisconsin Ave. Associates Ltd. Partnership: Steps taken to make choate what is otherwise an inchoate security interest in rents do not alter the character of the mortgagee’s rights in the rents as security for payment of a debt. What such steps do accomplish is to allow the mortgagee to enforce the security interest and to give the mortgagee priority over subsequent judgment lien creditors in the tenants’ fu ture rental payments. The mortgagee’s choate security interest in rents remains a security interest (albeit one with priority), not absolute ownership. 167 B.R. 699, 705 n. 8 (Bankr.D.C.1994). 4. Statutory Construction The plain language of the Bankruptcy Code supports the conclusion that the Debt- or’s ownership rights in the assigned rents were not extinguished. Section 552(b) provides: Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before" }, { "docid": "16288213", "title": "", "text": "similar to those in Commerce Bank. The bank held mortgages containing provisions assigning the rents in the event of default. The owners did default, and the bank sent notice to the tenants informing them that it would be collecting their rents. In doing so, the bank enforced its rights under the mortgage, and obtained constructive possession of the properties and title to the rents. See id. at 39; see also Robin Assocs. v. Metro. Bank & Trust Co. (In re Robin Assocs.), 275 B.R. 218, 221 (Bankr.W.D.Pa.2001) (explaining that “under Pennsylvania law, a mortgagee ... obtains ownership of assigned rents from the moment that notice is served by the mortgagee to a mortgagor’s tenants to commence making rental payments to the mortgagee”); J.H. Streiker & Co. v. SeSide Co. (In re SeSide Co.), 152 B.R. 878, 883 (E.D.Pa.1993) (citations omitted) (“The right of a mortgagee to receive rents, even when the mortgage contains an assignment provision, is grounded on ‘possession’ of the underlying realty. A mortgagee can obtain ‘possession’ of realty and consequently obtain a present right to receive rents ... by taking ‘constructive possession’ of the realty by serving demand notices on the mortgagor’s tenants.”). Therefore, when the debtor filed for bankruptcy protection four months later, it no longer possessed an interest in the rents. B. The Bank’s Appointment as Receiver The lower courts held, and the trustee argues, that Commerce Bank is inapplicable to this situation, because unlike the mortgagee in that case, the bank here sought and was appointed as receiver of the mortgaged properties. The trustee asserts that the bank had several options, including exercising its rights under the assignment of rents provision, requesting that the court appoint a third party receiver, or seeking appointment of itself as receiver. In doing the latter, the trustee contends, the.bank became an officer of the court with a fiduciary duty to turn over the funds to the bankruptcy trustee. A receiver owes a fiduciary duty to the owners of the property under his care. Under the bankruptcy code, a receiver is a custodian “that is appointed or authorized to" }, { "docid": "16288212", "title": "", "text": "Accordingly, we hold that the rents are not the property of the bankruptcy estate. A. Title to the Rents The bank argues that it took the necessary and appropriate steps to obtain legal title to the rents, thereby extinguishing the debtor’s interest in the funds. The bank relies on Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34 (3d Cir.1993). In that case, we considered the ownership of assigned rents in bankruptcy under Pennsylvania law. After the owner of rental properties defaulted on a mortgage, the mortgagee, who held a mortgage containing an assignment of rents provision, obtained constructive possession of the properties by sending notice to the tenants and collecting the rents. The owner then filed for Chapter 11 protection and sought use of the rents. We held that the mortgagee obtained title to the rents by taking the steps that it did, and as a result, the rents were not the property of the debtor’s estate available for use in its reorganization plan. Id. at 38. The facts in this case are similar to those in Commerce Bank. The bank held mortgages containing provisions assigning the rents in the event of default. The owners did default, and the bank sent notice to the tenants informing them that it would be collecting their rents. In doing so, the bank enforced its rights under the mortgage, and obtained constructive possession of the properties and title to the rents. See id. at 39; see also Robin Assocs. v. Metro. Bank & Trust Co. (In re Robin Assocs.), 275 B.R. 218, 221 (Bankr.W.D.Pa.2001) (explaining that “under Pennsylvania law, a mortgagee ... obtains ownership of assigned rents from the moment that notice is served by the mortgagee to a mortgagor’s tenants to commence making rental payments to the mortgagee”); J.H. Streiker & Co. v. SeSide Co. (In re SeSide Co.), 152 B.R. 878, 883 (E.D.Pa.1993) (citations omitted) (“The right of a mortgagee to receive rents, even when the mortgage contains an assignment provision, is grounded on ‘possession’ of the underlying realty. A mortgagee can obtain ‘possession’ of realty and consequently obtain a" }, { "docid": "14617146", "title": "", "text": "at the pre-enforcement stage should be considered cash collateral, In re Foxcroft Square Co., 178 B.R. 659 (E.D.Pa.1995); Streiker & Co. v. SeSide Co. (In re SeSide Co.), 152 B.R. 878 (E.D.Pa.1993), which a debtor may use only upon reaching an agreement with the creditor or after obtaining a court finding that the creditor’s interest in the rents is adequately protected. See 11 U.S.C. § 363(c)(2)(A) & (B). With these principles in mind, I am ready to address the use of the rents in the present case. First, I believe the law allows the Debtor leeway to draft a plan that takes account of the present use of the rents by the mortgagee-in-possession to amortize the balance owing on the mortgage. In the few instances in which courts have directly addressed the issue, they have held that debtors may not use assigned rents to “fund a plan” of reorganization because the money is not part of the bankruptcy estate. While the cases do not articulate what is meant by stating that the rents may not be used to “fund a plan,” the context of the opinions makes clear that the debtors intended to use the assigned rents to meet the their obligations generally under a plan, including the payment of expenses and claims other than those of the mortgagee. It is possible, however, to envision a plan in which assigned rents occupy a narrower role. One example of such a plan, and the only one I could find in a reported case, is discussed in In re Galvin, 120 B.R. 767 (Bankr.D.Vt.1990), where the court confirmed a Chapter 13 plan that, as described by the court, provided for a deduction from the debtor’s monthly mortgage payment of an amount equal to the monthly rental received by the debtor’s mortgagee under an assignment of rents. The court’s analysis of the plan was brief: Although we conclude Bank [the mortgagee] was and is entitled to collect rent directly from Debtors’ Tenant and the rent is not property of Debtors’ estate, we nevertheless conclude Debtors’ plan properly deducted the amount collected by Bank" }, { "docid": "16288217", "title": "", "text": "309 Pa. 340, 163 A. 680, 682 (1932) (explaining that a receiver takes only the interest of owner of the property). Therefore, when it was appointed receiver, the bank took only the debtor’s interest in the property, which no longer included title to the rents. The appointment did not change the debtor’s ownership rights. In addition, New Jersey case law indicates that a receivership appointment does not divest a mortgagee’s legal title to rental funds. In First Fid. Bank, N.A. v. Jason Realty, L.P. (In re Jason Realty, L.P.), 59 F.3d 423 (3d Cir.1995), for example, after the owner’s default, the mortgagee notified tenants that it would be collecting the rents pursuant to the mortgage’s assignment of rents provision. The mort-g'agee then filed an application for appointment of receiver and the owner filed for chapter 11 bankruptcy. We held that, under New Jersey law, the assigned rents were not property of the estate, and not available for use in the debtor’s plan. Id. at 429. Under similar facts in MacArthur Executive Assoc. v. State Farm Life Ins. Co., 190 B.R. 189, 195 (D.N.J.1995), the court held that because the mortgagee held title to the rents, they were no longer property of the bankruptcy estate. Therefore, once title to rents vests in a mortgagee under New Jersey law, a receivership appointment does not convey that property back into the debtors’ estate. In sum, although the bank — as a receiver — took possession and control of the mortgaged properties, it did not obtain any rights to the rents. The bank held title to the rents by enforcing its rights under the mortgage; it took control of the real property through its appointment as receiver. III. Conclusion For the foregoing reasons, we REVERSE the order of the district court, and REMAND for proceedings consistent with this opinion. . The mortgages specified that Lender shall have the right, without notice to Grantor, to take possession of the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the indebtedness. In furtherance" }, { "docid": "11712713", "title": "", "text": "rents after mortgagor defaulted under the terms of its mortgage). Otis Elevator, a case recently decided by the Court of Appeals of Michigan, cited with approval two federal bankruptcy court cases, In re Mount Pleasant Ltd. Partnership, 144 B.R. 727, 733-34 (Bankr.W.D.Mich.1992), and In re Coventry Commons Associates, 143 B.R. 837, 838 (E.D.Mich.1992), which cases interpreted Michigan law for this very issue — ownership of rents in a single asset case. Id. 206 Mich.App. at 713-14, 522 N.W.2d 732. In Coventry Commons, the mortgagee recorded the assignment of rents but failed to record a notice of default and did not send copies of such notice to the tenants. In re Coventry Commons, 143 B.R. at 838. The district court held that the mortgagee had a perfected security interest and, as such, the rents constituted cash collateral. Id. at 839. In a situation more analogous to the present case, the court in Mount Pleasant held that once a mortgagee completed all the necessary five-steps for complete enforcement, the debtor lost any interest in the rents under state law. In re Mount Pleasant Ltd., Partnership, 144 B.R. at 737. Similarly, since Connecticut Mutual had taken all the necessary steps for complete enforcement of its Assignment of Rents, the Debtor has lost its interest in the Rents. This Court remains unconvinced that Whiting Pools mandates a different outcome. The debtor in Mount Pleasant also unsuccessfully made, the same argument. Id. This court is persuaded that Whiting Pools is inapplicable because the Debtor no longer has any interest in the Rents. Whiting Pools only applies when ownership of the seized property has not been transferred. Whiting Pools, 462 U.S. 198, 209, 103 S.Ct. 2309, 2316 (“of course, if a tax levy or seizure transfers ... ownership of the property seized, section 542(a) may not apply.... But those provisions do not transfer ownership of the property_”). Michigan law transfers ownership of the Rents to the mortgagee until the Mortgage is satisfied. The equitable interest the Debtor alludes to as property of the estate was correctly characterized by the Mount Pleasant court as an equitable interest" }, { "docid": "16288211", "title": "", "text": "are property of the bankruptcy estate. Property of the bankruptcy estate is defined as “all legal or equitable interests of the debtor in property as of the commencement of the case” wherever located by whomever held. 11 U.S.C. § 541(a)(1) (2000). Thus, determining whether the rents here are the property of the bankruptcy estate requires an inquiry into whether the debtor had any legal or equitable interests in those rents as of the date of the bankruptcy petition. The bank argues that the debtor’s interest in the rents was extinguished pre-petition when the owner defaulted and the bank exercised its rights under the mortgage’s assignment of rents provision. The trustee, on the other hand, contends that the debtor maintained an interest in the rents because they were collected by the bank in its capacity as a receiver. We conclude that the debtor had no interest in the rents when the petition was filed, because (A) the bank took title to the rents pre-petition, and (B) its subsequent appointment as receiver did not affect that title. Accordingly, we hold that the rents are not the property of the bankruptcy estate. A. Title to the Rents The bank argues that it took the necessary and appropriate steps to obtain legal title to the rents, thereby extinguishing the debtor’s interest in the funds. The bank relies on Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34 (3d Cir.1993). In that case, we considered the ownership of assigned rents in bankruptcy under Pennsylvania law. After the owner of rental properties defaulted on a mortgage, the mortgagee, who held a mortgage containing an assignment of rents provision, obtained constructive possession of the properties by sending notice to the tenants and collecting the rents. The owner then filed for Chapter 11 protection and sought use of the rents. We held that the mortgagee obtained title to the rents by taking the steps that it did, and as a result, the rents were not the property of the debtor’s estate available for use in its reorganization plan. Id. at 38. The facts in this case are" }, { "docid": "7944547", "title": "", "text": "pre-petition lien as the product or profits of the working interest. See B. Clark, The Law of Secured Transactions Under the UCC ¶ 13.03 at S13-2 (1992 Supp.). Under Illinois law, to perfect its interest in rents and profits, upon the mortgagor’s default, the mortgagee must take affirmative action to be placed in possession of the property. In re J.D. Monarch Development Co., 153 B.R. 829, 833-34 (Bankr.S.D.Ill.1993). Once a mortgagee has done so, “he is entitled to future rents [or profits] despite the fact that an intervening creditor has levied the rental income.” In re Gelwicks, 81 B.R. 445, 447 (Bankr.N.D.Ill.1987) (citing Stevens v. Blue, 388 Ill. 92, 57 N.E.2d 451 (Ill.1944)). A creditor ordinarily perfects a lien on rents or profits by initiating foreclosure proceedings that place it in actual possession of the real estate or requesting the appointment of a receiver. When a debtor files for bankruptcy, 11 U.S.C. § 362(a)(4), generally stays “any act to create, perfect, or enforce any lien against property of the [debtor’s] estate.” This provision apparently precludes a creditor from perfecting its lien on rents and profits through a formal legal proceeding, and as a result, the trustee ordinarily could avoid the creditor’s unperfected interest through its powers as hypothetical lien creditor under § 544(a)(1). However, pursuant to 11 U.S.C. § 362(b)(3), 11 U.S.C. § 546(b) provides an exception to the general rule that the petition stays actions to perfect an interest and allow the post-petition perfection of a lien in limited circumstances. Section 546(b) limits a trustee’s § 544 avoiding powers if generally applicable law “permits perfection of an interest in property to be effective against an entity that acquires rights” in the property before the date of perfection. If that law requires that the property be seized or that an action be commenced to perfect the security interest and that action was not taken before the bankruptcy petition was filed, the interest is perfected by postpetition notice. 11 U.S.C. § 546(b). In re Casbeer, 793 F.2d 1436, 1443 (5th Cir.1986). See also Virginia Beach Federal Savings and Loan Association v." }, { "docid": "4788732", "title": "", "text": "trust, the trustee held legal and equitable title, and (ii) although the debtor had an interest in the earnings, this interest was only an interest in personal property and could not subject the land to the jurisdiction of the bankruptcy court. Id. The Langley court rejected the creditor’s argument. Id. at 600. The court held that: [A]t least in a case where the debtors are the only beneficiaries of an Illinois type land trust, the ownership interest makes the res of the trust property of the estate This result is further supported by the fact that the debtors-in-possession succeed, as would the trustee, to all the powers and rights held by the debtors on the date of filing their petition in bankruptcy. ... Further, the debtors have a beneficial interest in the proceeds of the sale of the rest of the trust'. Clearly that interest is property of the estate. Thus even if the property were sold pursuant to a postpetition foreclosure sale, the proceeds would be property of the estate, subject to distribution through the bankruptcy laws. 7& Accordingly, pursuant to both the terms of the Trust and applicable decisional law, the Rents are property of Ameriswiss’s bankruptcy estate. 11 U.S.C. § 541. (B)Notice was given by Frankel pursuant to Fla.Stat. § 697.07 (1991) Fla.Stat. § 697.07 (1991) provides that: A mortgage may provide for an assignment of rents. If such assignment is made, such assignment shall be absolute upon the mortgagor’s default, becoming operative upon written demand made by the mortgagee. Upon application by the mortgagee, a court of competent jurisdiction may require the mortgagor to deposit such rents in the registry of the court pending adjudication of the mortgagee’s rights to the rents, any payments therefrom to be made solely to protect the mortgaged property and meet the mortgagor’s lawful obligations in connection with the property. The Debtor argues that Frankel’s notice pursuant to the foregoing statute was ineffective since Frankel served the notice on the Debtor and not on the Trustee/mortgagor. However, the Court having concluded that the Rents are property of the Debtor’s estate, notice" } ]

[ { "docid": "5335478", "title": "", "text": "amount of protection to workers covered by pension plans. When Congress defined all members of a controlled group as a single “employer,” it clearly intended to prevent a business from limiting its responsibilities under ERISA by the fractionalization of its business operations. In light of this intent, the court finds that Congress did not intend to exclude from its definition of a “trade or business” in § 1301, a rental proprietorship which leases property, under a net lease, to an entity that is under common control. Center City Motors, 609 F.Supp. at 412 (citations omitted); accord United Food, 644 F.Supp. at 638-39. The Saltzes argument in support of their position that their lease of the Property was not a “trade or business” for ERISA purposes is unpersuasive. They do not distinguish Center City Motors or United Food, but rather argue simply that both cases were wrongly decided. Notwithstanding the explicit findings of both courts that the term “trade or business” has no single, well-established meaning in the Internal Revenue Code, they argue that it should be construed by reference to Code and case law decided under it, without considering the different concerns which underlie ERISA. Particularly to the extent that they claim that the Center City Motors court did not consider the legislative history of ERISA or § 1301(b)(1), their argument is incorrect as well as unpersuasive. See Center City Motors, 609 F.Supp. at 412. In summary, because both Center City Motors and United Food appear to be based on sound reasoning, and because the Saltzes have not offered compelling reasons to disregard those cases, their net lease arrangement with the Corporation is held to have been a “trade or business” for the purposes of § 1301(b)(1). The Saltzes are therefore liable as members of a common control group for the Corporation’s withdrawal liability to the Fund. Because notice to one member of the control group is considered as notice to all members, Teamsters Pension Trust Fund v. Allyn Transportation Co., 832 F.2d 502, 506-07 (9th Cir.1987); IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118 (3d" } ]

[ { "docid": "15818960", "title": "", "text": "continued to employ, the road-boring services of CAFI. Counts 31-34 also constituted Racketeering Act 26, which supported the convictions for Counts 1 and 2. Laird argues that his conviction on Racketeering Act 26 and Counts 31-34 was not supported by sufficient evidence. He argues that the government failed to prove his presence at the meeting in which Ann Blackwell, Mar-Len’s project manager, was forced to employ CAFI. Blackwell, however, placed Laird at the scene. This was enough to tie Laird to the scene, because the jury was entitled to disbelieve Laird’s witnesses who testified either that he was out of town or that they did not see him on the premises at the time of the meeting. The jury was also entitled to infer from the evidence that Laird’s constant presence beside Carlock, Sr., was intended to support the extortion of Mar-Len. While Laird did not threaten Blackwell directly, he always accompanied Carlock, Sr., on his visits to the Hackberry site, affirmed Scime-mi’s demands for exorbitant truck rentals, refused to replace Scimemi as master mechanic at the site, and in general provided support by his presence throughout the duration. The outline of his gun through his jacket also indelibly impressed Blackwell during the course of one meeting. Such supportive conduct is sufficient for a conviction under the Hobbs Act. See, e.g., United States v. Ciambrone, 787 F.2d 799 (2d Cir.1986) (defendant’s presence “lent weight and authority to the prior and subsequent threatening conduct and action” and supported the racketeering conviction, even though defendant did not participate in every aspect of the criminal venture). Finally, Laird repeats the sufficiency challenges to his Hobbs Act convictions discussed earlier with regard to Carlock, Sr., and Carlock, Jr., namely that the government failed to prove that Mar-Len had a reasonable fear which the conspirators exploited. Blackwell testified that Mar-Len submitted to the demands of Car-lock, Sr., Laird, and Scimemi because it wanted to prevent union-instigated delays and equipment sabotage and because Blackwell feared them personally. We are persuaded that the evidence sufficiently established that the conspirators exploited fears reasonably held by Mar-Len. D. Scimemi" }, { "docid": "13420811", "title": "", "text": "the employer that is signatory to the pension plan. Section 1301(b)(1) makes no mention whatsoever of an “economic nexus” requirement; the “common control” criterion itself constitutes the only “nexus” requirement imposed by section 1301(b)(1), and the District Court was in error to conclude that any further connection between Incoal and Double A Farms was necessary before Double A Farms could qualify as a “trade or business.” Our decision today does not break new ground; indeed, it accords with most of the circuit court opinions that have discussed the question now before us. See Personnel, 974 F.2d at 793 (“§ 1301(b)(1) does not require an economic nexus other than common ownership as a prerequisite to withdrawal liability”); Slotky, 956 F.2d at 1374 (same); Board of Trustees of the Western Conference of Teamsters Pension Trust Fund v. Ldfrenz, 837 F.2d 892, 895 (9th Cir.1988) (same). But cf Central States, S.E. and S.W. Areas Pension Fund v. Ditello, 974 F.2d 887, 890 (7th Cir.1992) (finding the nexus issue “an open question”). We also note that amicus, Pension Benefit Guaranty Corporation, considers the nexus requirement incompatible with the statutory scheme. See Mead Corp. v. Tilley, 490 U.S. 714, 726, 109 S.Ct. 2156, 2164, 104 L.Ed.2d 796 (1989) (counseling courts to consider the Corporation’s views). C. Disposition on Summary Judgment Although we conclude that the District Court erred in holding that an economic nexus must be established between Incoal and Double A Farms before the latter can qualify as a “trade or business” under section 1301(b)(1), we believe it is inappropriate for this court to render a decision on the merits at this juncture. We therefore remand the case to the District Court. We reach this decision based on the nature of the inquiry that a court must undertake to determine whether an enterprise is a “trade or business” under section 1301(b)(1). That inquiry is made somewhat difficult because— as numerous courts have pointed out — section 1301(b)(1) does not define the phrase “trade or business.” See, e.g., Personnel, 974 F.2d at 794. Section 1301(b)(1) provides only that regulations prescribed under that section “shall be" }, { "docid": "13420826", "title": "", "text": "Johnson 830 F.2d at 1015; accord Connors v. Ryan’s Coal Co., Inc., 923 F.2d 1461, 1468 (11th Cir.1991). In imposing withdrawal liability on any “trade or business” under common control with the signatory employer, Congress made no exception for those who did not foresee the potential extent of that liability, either in setting up the “trade or business” or in choosing a particular form for that “trade or business.” Fourth, the legal form of the disputed enterprise — be it a “partnership,” “corporation,” “joint venture,” “individual owner” or some other type of organization — is not dis-positive of whether the enterprise is a “trade or business.” Indeed, the plain language of section 1301(b)(1) makes this clear, for that section extends liability to all commonly controlled “trades or businesses {whether or not incorporated).” 29 U.S.C. § 1301(b)(1) (emphasis added). Thus, for example, courts have stated that a partnership, such as Double A Farms, can be a “trade or business” under seption 1301(b)(1). See Ryan’s Coal, 923 F.2d at 1466; H.F. Johnson, 830 F.2d at 1015. Of course, the form of organization affects who may be held liable, and the extent to which their assets can be reached. For example, it is black-letter law that “[a]b-sent any limitation in the partnership agreement, partners are personally liable for obligations of the partnership.” Id.; see also UNIF. PARTNERSHIP Act § 15, 6 U.L.A. 174 (1969). In this case, therefore — as the Ad-kinses concede — if the District Court finds that Double A Farms constitutes a “trade or business,” then the Adkinses are personally liable for the withdrawal liability imposed on Double A Farms. Finally, as we have already held, there is no “economic nexus” requirement that an enterprise must meet in order to qualify as a “trade or business.” Indeed, it is not even relevant, let alone dispositive, that there is, or is not, an economic nexus between Double A Farms and Incoal. The proper characterization of the Double A Farms partnership must be made with reference to other factors. III. Conclusion For the foregoing reasons, we hold that the District Court erred" }, { "docid": "15818962", "title": "", "text": "Scimemi was convicted of conspiracy to racketeer and racketeering in Counts 1 and 2, which were supported by the jury’s finding of Racketeering Acts 25-27 charging Scimemi with acts of extortion in violation of La.Rev.Stat. 14:66 and the Hobbs Act. Racketeering Act 25 charged Scimemi with extortion of Mar-Len by threatening to kill James Smith if Mar-Len did not replace him at the Hackberry site. Racketeering Act 26 charged Scimemi with threatening representatives of Mar-Len with work slowdowns, stoppages, and physical harm unless Mar-Len retained the services of CAFI. Finally, Racketeering Act 27 charged Sci-memi with similar conduct in forcing Mar-Len to rent various pieces of construction equipment from Tri-Coast. Racketeering Acts 26 and 27 were also charged as substantive Counts 31-41. Counts 31-34 charged separate payments extorted from Mar-Len on behalf of CAFI, while Counts 35-41 charged the payments made by Mar-Len to Tri-Coast. Scimemi challenges his conviction of all counts. To convict Scimemi of racketeering and conspiracy to racketeer, it is necessary to find that he participated in at least two racketeering acts. The jury found Sci-memi guilty of three. His conviction on Counts 1 and 2 will therefore stand so long as the evidence of any two of these racketeering acts is sufficient. Scimemi first attacks his conviction on Racketeering Act 26 and Counts 31-34, which alleged the extortion of Mar-Len on behalf of CAFI, by presenting only the testimony favorable to his defense. The jury could have reasonably concluded, however, that Carlock, Sr., Scimemi, and Laird forced Mar-Len to retain CAFI despite its inferior performance through subtle threats of economic loss. Blackwell testified that walk-outs and jurisdictional disputes were threatened if Mar-Len made any effort to replace CAFI, and that Car-lock, Sr., told her to keep CAFI because Vernon Causey was “a good boy.” This evidence sufficiently establishes the threats and reasonable fear necessary to support a Hobbs Act conviction. Scimemi also attacks the evidence supporting his conviction under Racketeering Act 27 and Counts 35-41, for extorting rental payments from Mar-Len on behalf of Tri-Coast. We are persuaded that the evidence was sufficient to support the" }, { "docid": "23316277", "title": "", "text": "Fund v. Cullum Cos., 973 F.2d 1333, 1339 (7th Cir.1992) (explaining that a number of MPPAA’s provisions were meant to limit the impact and application of withdrawal liability and that giving these less effect than the plain language requires would distort the statutory scheme). The only way in which we can determine the boundaries on these policies is by examining the statutory language. This explains why we have in the past rejected policy-based interpretations of MPPAA that did not find support in the text. See Trustees of Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Leaseway Transp. Corp., 76 F.3d 824, 830-31 (7th Cir.1996); Johnson, 991 F.2d at 390-91; Cullum Cos., 973 F.2d at 1338-40. Congress demarcated the extent to which the anti-fractionalization policy would be pursued in the text of the MPPAA, such as by not imposing personal liability on shareholders, as explained above. The provision imposes liability only on “trades or businesses,” and those words must be given their ordinary meaning in accordance with established canons of interpretation. Under a proper construction of the language of § 1301(b)(1), a reasonable factfinder could determine that the Fulkersons’ leasing activities do not constitute a trade or business. III. Conclusion The plain meaning of MPPAA precludes considering the passive holding of property in determining whether an activity rises to the level of a trade or business. Thus, the district court committed error by relying only on the fact that the Fulkersons had held the leases for ten years in determining whether the continuity and regularity prong of Groetzinger was satisfied. On remand (to which Circuit Rule 36 will apply) only the actions of the Fulkersons regarding the leasing, rather than mere possession of the leases, should be considered. For the reasons stated herein, we Reverse the decision of the district court and Remand for further proceedings consistent with this opinion. . We also reaffirm that no economic nexus is required between the obligated organization and trades or business under common control because the statute does not impose one. See Personnel, 974 F.2d at 793; Slotky, 956 F.2d" }, { "docid": "20711736", "title": "", "text": "on whether an individual is “in business for himself’ or is “dependent upon finding employment in the business of others.” Mednick v. Albert Enters., Inc., 508 F.2d 297, 301-02 (5th Cir.1975). III. DISCUSSION Because both parties apply the six-factor test set out above, and because we agree that those factors are relevant to determining whether an individual is an employee or independent contractor, we apply them here. We note, however, that these six factors are not exclusive and no single factor is dominant. We view the subsidiary facts relevant to each factor through the lens of “economic dependence” and whether they are more analogous to the “usual path” of an employee or an independent contractor. And of course, in the summary judgment posture of this case, we take reasonable inferences in fa vor of the plaintiffs in determining the facts underlying each factor in the analysis. A. Control The first factor considers the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed. “Control is only significant when it shows an individual exerts such a control over a meaningful part of the business that she stands as a separate economic entity.” Usery, 527 F.2d at 1312-13. The facts, viewed in the light most favorable to plaintiffs, indicate that Knight exercised significant control over plaintiffs such that they did not stand as “separate economic entities” who were “in business for themselves.” Technicians were required to report to a Knight facility by 7:00 to 7:15 each morning. Technicians would turn in equipment from the previous day and submit their work orders, which included the billing codes that determined their pay for particular jobs. These billing codes were set by Knight, and managers could unilaterally change the codes that technicians reported, thereby reducing a technician’s pay. Plaintiffs would also receive a “route” detailing the current day’s work orders, which were generally assigned in two-hour timeslots. Though plaintiffs’ “Independent Contractor Service Agreements” provided that they could “decline any work assignments,” plaintiffs testified that they could not reject a route or a work order within" }, { "docid": "15818961", "title": "", "text": "at the site, and in general provided support by his presence throughout the duration. The outline of his gun through his jacket also indelibly impressed Blackwell during the course of one meeting. Such supportive conduct is sufficient for a conviction under the Hobbs Act. See, e.g., United States v. Ciambrone, 787 F.2d 799 (2d Cir.1986) (defendant’s presence “lent weight and authority to the prior and subsequent threatening conduct and action” and supported the racketeering conviction, even though defendant did not participate in every aspect of the criminal venture). Finally, Laird repeats the sufficiency challenges to his Hobbs Act convictions discussed earlier with regard to Carlock, Sr., and Carlock, Jr., namely that the government failed to prove that Mar-Len had a reasonable fear which the conspirators exploited. Blackwell testified that Mar-Len submitted to the demands of Car-lock, Sr., Laird, and Scimemi because it wanted to prevent union-instigated delays and equipment sabotage and because Blackwell feared them personally. We are persuaded that the evidence sufficiently established that the conspirators exploited fears reasonably held by Mar-Len. D. Scimemi Scimemi was convicted of conspiracy to racketeer and racketeering in Counts 1 and 2, which were supported by the jury’s finding of Racketeering Acts 25-27 charging Scimemi with acts of extortion in violation of La.Rev.Stat. 14:66 and the Hobbs Act. Racketeering Act 25 charged Scimemi with extortion of Mar-Len by threatening to kill James Smith if Mar-Len did not replace him at the Hackberry site. Racketeering Act 26 charged Scimemi with threatening representatives of Mar-Len with work slowdowns, stoppages, and physical harm unless Mar-Len retained the services of CAFI. Finally, Racketeering Act 27 charged Sci-memi with similar conduct in forcing Mar-Len to rent various pieces of construction equipment from Tri-Coast. Racketeering Acts 26 and 27 were also charged as substantive Counts 31-41. Counts 31-34 charged separate payments extorted from Mar-Len on behalf of CAFI, while Counts 35-41 charged the payments made by Mar-Len to Tri-Coast. Scimemi challenges his conviction of all counts. To convict Scimemi of racketeering and conspiracy to racketeer, it is necessary to find that he participated in at least two racketeering acts." }, { "docid": "23316271", "title": "", "text": "the obligated corporation; and (2) it must be a trade or business. The Fulker-sons do not dispute that Tom Fulkerson controlled both Holmes and the leasing. Thus, the only question is whether Tom’s leasing constitutes a trade or business. As in all statutory interpretation cases, we begin with the statutory language. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). Statutory terms or words will be construed according to their ordinary, common meaning unless these are defined by the statute or the statutory context requires a different definition. See Walters v. Metropolitan Educ. Enterprises, Inc., 519 U.S. 202, 207, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997); Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). Section 1301(b)(1) presents no interpretive difficulties when it is used to impute withdrawal liability to another corporation or other formally recognized business organization that is under common control with the obligated entity. However, thorny questions can arise when informal economic activities are claimed to be a trade or business. In these circumstances, given the interpretive principles outlined above and the fact that MPPAA does not define “trades or businesses,” we reaffirm that the test for what constitutes a trade or business established in Commissioner v. Groetzinger, 480 U.S. 23, 35, 107 S.Ct. 980, 94 L.Ed.2d 25 (1987) applies in determining whether an activity is a trade or business for purposes of § 1301(b)(1). See Personnel, 974 F.2d at 794; see also Connors v. Incoal, Inc., 995 F.2d 245, 250-51 & n. 7 (D.C.Cir.1993). For an activity to be a trade or business under Groetzinger, a person must engage in the activity: (1) for the primary purpose of income or profit; and (2) with continuity and regularity. 480 U.S. at 35, 107 S.Ct. 980. While Groetzinger was interpreting only a specific provision in the tax code, its test comports with the common meaning of trade or business and thus can be used more generally. One purpose of the Groetzinger test is to distinguish trades or business from investments, which are not trades" }, { "docid": "15818963", "title": "", "text": "The jury found Sci-memi guilty of three. His conviction on Counts 1 and 2 will therefore stand so long as the evidence of any two of these racketeering acts is sufficient. Scimemi first attacks his conviction on Racketeering Act 26 and Counts 31-34, which alleged the extortion of Mar-Len on behalf of CAFI, by presenting only the testimony favorable to his defense. The jury could have reasonably concluded, however, that Carlock, Sr., Scimemi, and Laird forced Mar-Len to retain CAFI despite its inferior performance through subtle threats of economic loss. Blackwell testified that walk-outs and jurisdictional disputes were threatened if Mar-Len made any effort to replace CAFI, and that Car-lock, Sr., told her to keep CAFI because Vernon Causey was “a good boy.” This evidence sufficiently establishes the threats and reasonable fear necessary to support a Hobbs Act conviction. Scimemi also attacks the evidence supporting his conviction under Racketeering Act 27 and Counts 35-41, for extorting rental payments from Mar-Len on behalf of Tri-Coast. We are persuaded that the evidence was sufficient to support the jury’s conclusion that Scimemi was involved in this extortion. Indeed, according to Davidson, Scimemi was a catalyst for the rentals. Davidson testified that Carlock, Sr., and Scimemi approached him and offered to arrange for his construction equipment to be rented to Mar-Len. At the time, Mar-Len rented its heavy equipment from its parent company, Mar-Len, Inc., a Texas corporation. Davidson testified that Scime-mi stated that he would prevent Texas contractors from making money on the Hack-berry project by disabling Mar-Len’s equipment. Mar-Len then began to suffer equipment difficulties, sabotage and labor problems. Scimemi also repeatedly threatened Blackwell and reminded her of the Ellender Bridge and Jupiter Chemical incidents, insinuating that history could repeat itself at the Hackberry site. His conten tion that the government failed to prove hjs participation in this extortion is meritless. III Defendants also challenge their convictions as products of undue pre-indictment delay and argue that the indictment should have been dismissed for that reason. There is no sixth amendment right to a timely indictment. Protection from delay in indictment must be" }, { "docid": "13420809", "title": "", "text": "and does not dispute here, that it is under “common control” with Incoal. See Incoal, 781 F.Supp. at 53; Brief for Appellees at 21. The only issue before the court, therefore, is whether Double A Farms constitutes a “trade or business” within the meaning of 29 U.S.C. § 1301(b)(1). B. Whether Double A Farms Is a “Trade or Business” In deciding that Double A Farms did not constitute a “trade or business” under section 1301(b)(1), the District Court relied on a determination that there was no “economic nexus” between Incoal and Double A Farms. Incoal, 781 F.Supp. at 54-56. On this point, the decision of the trial court asserts that where an enterprise is not clearly a “trade or business,” but, rather, falls into a ‘“shadowy area’” between a “trade or business” and a ‘“mere investment or hobby,’” a court may take into account the existence, or lack, of an “ ‘economic nexus’ ” between the disputed operation and the principal employer. Id. at 56 (quoting ILGWU Nat’l Retirement Fund v. Minotola Indus., Inc., No. 88 Civ. 9131, 1991 WL 79466, at *5 (S.D.N.Y. May 3, 1991)). Finding “no such nexus, tenuous or direct,” between Incoal and Double A Farms, the trial court held that “it would be inappropriate and not in keeping with the purposes underlying ERISA and MPPAA'to hold that Double A Farms constitutes a trade or business.” Id. This holding constitutes legal error. It is altogether irrelevant, under section 1301(b)(1), whether Double A Farms has an “economic nexus” with Incoal. In this regard, the language of section 1301(b)(1) could not be more plain. That section provides, in relevant part: “For purposes of this sub-chapter ... all employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer.” 29 U.S.C. § 1301(b)(1). • As noted above, this provision imposes two, and only two, conditions precedent to liability: (1) an enterprise must be a “trade or business,” and (2) the enterprise must be under “common control” with" }, { "docid": "16202257", "title": "", "text": "either the trust or the corporate defendants. As noted earlier, liability for withdrawal assessments is joint and several among all trades and businesses under common control. See, e.g., Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 120-21 (4th Cir.1991), and Pension Benefit Guaranty Corp. v. Ouimet Corp., 630 F.2d 4, 11 (1st Cir.1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1356, 67 L.Ed.2d 339 (1981); see also Board of Trustees of Western Conference of Teamsters Pension Trust Fund v. Lafrenz, 837 F.2d 892, 893-95 (9th Cir.1988). We have already found that the trust is liable for the withdrawal assessment obligations of the corporate defendants by virtue of the fact that both it and the corporate defendants are trades and businesses under the common control of Mr. Sexton. The question, then, is whether Mr. Sexton himself may be held personally liable for those obligations, and, if so, under what circumstances. We find for the pension plan trustees on this issue, although for slightly different reasons from those argued. In both their motion for and their reply brief in support of reconsideration of the trial court’s order granting summary judgment to the plaintiffs on count one, the defendants described the trust as an alter ego of Mr. Sexton. The effect of this concession, in our view, is that Mr. Sexton may be held personally liable for the obligations of the trust. The concept of personal liability for the obligations of an entity considered to be an alter ego of an individual is frequently employed in relation to corporations. See, e.g., H. Henn and J. Alexander, Laws of Corporations and Other Business Enterprises § 146 at 351 (3d ed. 1983), and 18 Am.Jur.2d Corporations § 45 at 844-46 (1985); see also Rockney v. Blohorn, 877 F.2d 637, 643 (8th Cir.1989); Connors v. P & M Coal Co., 801 F.2d 1373, 1378 (D.C.Cir.1986); and Annotation, What Constitutes “Employer” for Purposes of Employer’s Withdrawal Liability under Multiemployer Pension Plan Amendments Act of 1980, 95 A.L.R.Fed. 703, especially § 4 at 714-20 (1989). We see no reason why the alter ego concept should" }, { "docid": "21604672", "title": "", "text": "a trade or business of leasing land, I respectfully dissent. Under the MPPAA, all trades and businesses under common control are treated as a single employer. 29 U.S.C. § 1301(b)(1) (1980). Therefore, when an employer incurs withdrawal liability, all trades or businesses under common control with that employer become jointly and severally liable with the employer for the withdrawal liability. Teamsters Pension Trust Fund v. H.F. Johnson, 830 F.2d 1009, 1013 (9th Cir.1987). To prove that Ms. Simmons is personally liable for Alan’s Coal Sales’ withdrawal liability, the trustees must prove that she is associated with a trade or business under common control with Alan’s Coal Sales and that the association results in her being personally liable for that business enterprise’s debts. A. Evidence of Partnership In support of a finding of liability on the part of Ms. Simmons, the trustees argue, and the district court found, that she was a partner with her husband in a cattle farming business that was under common control with Alan’s Coal Sales within the meaning of 29 U.S.C. § 1301(b)(1). Section 1301(b)(1) provides that the term “common control” should be interpreted to be “consistent and coextensive” with the definition for that term set forth by the Secretary of the Treasury under section 414(c) of the Internal Revenue Code. 29 U.S.C. § 1301(b)(1) (1980). Thus, for the purposes of establishing withdrawal liability, a business enterprise may be found to be under common control with the withdrawing employer if it is a member of a “parent-subsidiary group,” a “brother-sister group,” or a “combined group” of businesses under common control with the withdrawing employer. See 26 C.F.R. § 1.414(c)-2 (1990). Although it is not clear from the district court’s opinion, the court must have found that the cattle farming operation was a member of a “brother-sister group,” as there is no evidence that anyone other than George Simmons and Janice Simmons had any ownership interest whatsoever in the cattle farming operation. To support a finding that the cattle farming operation was a member of a “brother-sister group” of business under common control along with Alan’s Coal" }, { "docid": "13420808", "title": "", "text": "pension benefits will not be shifted to the other employers in the plan and, ultimately, to the Pension Benefit Guaranty Corporation, which insures such benefits.” Central States, S.E. and S.W. Areas Pension Fund v. Slotky, 956 F.2d 1369, 1371 (7th Cir.1992); see also I.AM, Nat’l Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 416 (D.C.Cir.1987). The statutory provision at issue in this case, section 4001(b)(1) of ERISA, 29 U.S.C. § 1301(b)(1), extends an employer’s withdrawal liability to all “trades or businesses (whether or not incorporated) which are under common control” with the withdrawing employer. Under section 1301(b)(1), once liability of the principal employer is established, any enterprise that is (1) a “trade or business” and (2) under “common control” with the withdrawing employer is jointly and severally liable for the principal employer’s withdrawal liability. See, e.g., Central States, 5.E. and S.W. Pension Fund v. Personnel, Inc., 974 F.2d 789, 792 (7th Cir.1992). The “common control” element of section 1301(b)(1) is satisfied in this case. Double A Farms did not dispute before the District Court, and does not dispute here, that it is under “common control” with Incoal. See Incoal, 781 F.Supp. at 53; Brief for Appellees at 21. The only issue before the court, therefore, is whether Double A Farms constitutes a “trade or business” within the meaning of 29 U.S.C. § 1301(b)(1). B. Whether Double A Farms Is a “Trade or Business” In deciding that Double A Farms did not constitute a “trade or business” under section 1301(b)(1), the District Court relied on a determination that there was no “economic nexus” between Incoal and Double A Farms. Incoal, 781 F.Supp. at 54-56. On this point, the decision of the trial court asserts that where an enterprise is not clearly a “trade or business,” but, rather, falls into a ‘“shadowy area’” between a “trade or business” and a ‘“mere investment or hobby,’” a court may take into account the existence, or lack, of an “ ‘economic nexus’ ” between the disputed operation and the principal employer. Id. at 56 (quoting ILGWU Nat’l Retirement Fund v. Minotola Indus., Inc., No." }, { "docid": "16202251", "title": "", "text": "L.Ed.2d 260 (1989). We believe that the question of whether the pension plan trustees’ delay was unreasonable is a factual one that could have been raised by the defendants at the time they could have requested arbitration. We hold, accordingly, that by their failure to request arbitration they have waived it as a defense to payment. We therefore affirm the trial court as to this issue. II. “[A]ll employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer.” See 29 U.S.C. § 1301(b)(1). Liability for withdrawal assessments is joint and several as to all such trades and businesses. See, e.g., Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 120-21 (4th Cir.1991), and Pension Benefit Guaranty Corp. v. Ouimet Corp., 630 F.2d 4, 11 (1st Cir.1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1356, 67 L.Ed.2d 339 (1981); see also Board of Trustees of Western Conference of Teamsters Pension Trust Fund v. Lafrenz, 837 F.2d 892, 893-95 (9th Cir.1988). The statutes do not define “trade or business.” The courts considering that phrase “have engaged in an essentially factual inquiry” to determine whether a particular entity should be considered a trade or business for purposes of ERISA. Lafrenz, 837 F.2d at 894 n. 6. The trial court in this case, on motion for summary judgment, held that no genuine issue of material fact existed on the question of whether the Sexton Family Trust was a trade or business under the control of Ronald Sexton. The defendants apparently do not contest the finding of Mr. Sexton’s control over the trust. They do, however, dispute that the trust is a trade or business, arguing that its primary purpose was not to generate income or profit but instead to assist in Mr. Sexton’s estate planning arrangements. The defendants also argue that its income-generating activities were not continuous or regular enough to amount to the acts of a trade or business and that, in any event, those activities had not" }, { "docid": "13420810", "title": "", "text": "88 Civ. 9131, 1991 WL 79466, at *5 (S.D.N.Y. May 3, 1991)). Finding “no such nexus, tenuous or direct,” between Incoal and Double A Farms, the trial court held that “it would be inappropriate and not in keeping with the purposes underlying ERISA and MPPAA'to hold that Double A Farms constitutes a trade or business.” Id. This holding constitutes legal error. It is altogether irrelevant, under section 1301(b)(1), whether Double A Farms has an “economic nexus” with Incoal. In this regard, the language of section 1301(b)(1) could not be more plain. That section provides, in relevant part: “For purposes of this sub-chapter ... all employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer.” 29 U.S.C. § 1301(b)(1). • As noted above, this provision imposes two, and only two, conditions precedent to liability: (1) an enterprise must be a “trade or business,” and (2) the enterprise must be under “common control” with the employer that is signatory to the pension plan. Section 1301(b)(1) makes no mention whatsoever of an “economic nexus” requirement; the “common control” criterion itself constitutes the only “nexus” requirement imposed by section 1301(b)(1), and the District Court was in error to conclude that any further connection between Incoal and Double A Farms was necessary before Double A Farms could qualify as a “trade or business.” Our decision today does not break new ground; indeed, it accords with most of the circuit court opinions that have discussed the question now before us. See Personnel, 974 F.2d at 793 (“§ 1301(b)(1) does not require an economic nexus other than common ownership as a prerequisite to withdrawal liability”); Slotky, 956 F.2d at 1374 (same); Board of Trustees of the Western Conference of Teamsters Pension Trust Fund v. Ldfrenz, 837 F.2d 892, 895 (9th Cir.1988) (same). But cf Central States, S.E. and S.W. Areas Pension Fund v. Ditello, 974 F.2d 887, 890 (7th Cir.1992) (finding the nexus issue “an open question”). We also note that amicus, Pension Benefit" }, { "docid": "9712354", "title": "", "text": "under a net lease was a trade or business under section 1301(b)(1). United Food v. Progressive Supermarkets, 644 F.Supp. 633, 638 (D.N.J.1986); Pension Benefit Guaranty Corporation v. Center City Motors, 609 F.Supp. 409, 412 (S.D.Cal.1984). The Lafrenzes argue that Center City Motors and Progressive Supermarkets are inappo-site because their trucks were not leased to Pre-Mix. However, Anita Lafrenz testified in her deposition that they leased the trucks to Pre-Mix, which in turn leased the trucks to another company. Excerpt of Record, Clerk’s Document 10 at 73-75. Moreover, we agree with the district court that section 1301(b)(1) does not require that commonly controlled businesses be economically related. We thus conclude that the Lafrenz truck-leasing operation is a trade or business under section 1301(b)(1). Finally, the Lafrenzes’ argument that to hold them personally liable for PreMix’s withdrawal liability would inappropriately pierce the corporate veil misses the mark because their liability for the withdrawal liability of Pre-Mix does not derive from their status as shareholders of PreMix. Rather they are liable because of their status as the sole proprietors of an unincorporated trade or business under their common control. We believe that H.F. Johnson, Inc. is controlling authority on this point. In H.F. Johnson, Inc., 830 F.2d at 1014-15, we held that joint venturers may be held personally liable for the withdrawal liability incurred by a corporation under their common control. According to H.F. Johnson, Inc., because joint venturers are not shielded from personal liability, they are personally liable when the joint venture is deemed to be a single employer for the purposes of assessing withdrawal liability. Id. at 1015. This reasoning applies in the sole proprietorship context as well. Thus, we conclude that the Lafrenzes are personally liable for PreMix’s withdrawal liability, not because they are the controlling shareholders in PreMix, but because they are personally liable for the withdrawal liability imputed to their unincorporated truck-leasing operation. The judgment is AFFIRMED. . Pre-Mix’s withdrawal liability under ERISA, 29 U.S.C. § 1381, was determined in a separate action. Board of Trustees of Western Conference of Teamsters Pension Trust Fund v. Lewiston Pre-Mix Concrete," }, { "docid": "9167483", "title": "", "text": "a claim. I also conclude that, contrary to defendants' arguments, Peruvian law could allow veil piercing under these allegations. Instead of having an expressed doctrine as recognized by common law courts, Peruvian law has a form of indirect liability derived from misfeasance. As explained by plaintiffs' expert, a Peruvian lawyer and law professor, the lack of a codified positive legal rule does not preclude derived liability from fraudulent misfeasance under Article 96 of the Civil Code because entities that are organized via \"legal fraud\" violate the public order, thereby allowing for dissolution of the entity similar to veil piercing. ECF 871-121, Espinoza Report at ¶ 5.12. It may be possible to disregard the purpose of limited liability when members of the corporate entity do not act in good faith and the corporate entity frustrates economic expectations associated with the makeup of the legal entity. Id. at ¶ 5.16 n.4. An example of this can occur when fraudulent (unlawful) conduct materializes by harming creditors' economic expectations. Id. When applied in the context of Doe Run, this is the sort of activity at the heart of plaintiffs' claims - the La Oroya Complex was an undercapitalized corporate entity directly controlled by defendants, and the undercapitalization resulted in plaintiffs' harm. Plaintiffs also plead theories of agency as a basis for liability. A principal-agent relationship between two corporate entities is established when there is such domination and control \"that the controlled corporation has no separate mind, will or existence of its own and is but a business conduit for its principal.\" Blackwell Printing Co. v. Blackwell-Wielandy Co. , 440 S.W.2d 433, 437 (Mo. 1969). The following elements show an agency relationship: the agent has the power to alter legal relations, the agent is a fiduciary within the scope of matters entrusted to it, and a principal has a right to control the conduct of the agent. Blanks v. Fluor Corp. , 450 S.W.3d 308, 382-383 (Mo. Ct. App. 2014) (quoting State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002) ). New York law is similar; three elements are" }, { "docid": "2681442", "title": "", "text": "tenuous and general than the control over nonprofessional employees” (James v. Commissioner, 25 T.C. 1296, 1301 (1956)), we remain unpersuaded that even a “tenuous and general” control exists in the case before us. See also Azad v. United States, 388 F.2d 74, 77 (8th Cir. 1968). Rather, it is apparent that the recipient and the worker control the terms of the arrangement. Second, petitioner has no investment in the work facilities. The recipients provide the office space as well as all necessary tools and equipment. Third, petitioner has no opportunity for profit or loss except for the amounts received from the recipient as a setup fee and monthly service rate payments. The profit earned from the efforts of the worker in the recipient’s business belongs solely to the recipient. Fourth, like petitioner’s purported right to reassign workers, petitioner’s right to discharge workers as provided by the COE is, in the context of the worker’s equity interest in the recipient, illusory. Finally, while the parties have labeled the arrangement created by the COE and PLC as an employment relationship between petitioner and the worker, the objective economic reality of the relationship is that petitioner merely performs a bookkeeping and payroll service function, while the worker remains either self-employed or the employee of the recipient. The existence of a contract specifying that an employer-employee relationship exists is only one factor to be considered. Bartels v. Birmingham, supra at 129. In accordance with long-established precedent, we find that the transactions embodied in the COE and PLC lack objective economic substance and are not controlling for tax purposes. See Frank Lyon Co. v. United States, 435 U.S. 561, 573 (1978); Knetsch v. United States, 364 U.S. 361, 367 (1960); Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945); Falsetti v. Commissioner, 85 T.C. 332, 347 (1985). Thus, after a careful review of the administrative record and for the reasons discussed above, we hold that the workers are not common law employees of petitioner. Therefore, petitioner’s plans do not meet the “exclusive benefit” rule of section 401(a)(2). Accordingly, respondent’s determination that petitioner’s plans be" }, { "docid": "22143689", "title": "", "text": "discriminatory intent. For the circumstances of Woodman’s discharge to support such an inference, Woodman was obliged to adduce some admissible evidence indicating defendants’ knowledge as to a significant dis parity between her age and that of the employee to whom her duties were transferred. Neither the release omissions nor any other evidence in the record indicates such knowledge. Accordingly, like the district' court, we conclude that Woodman has failed to demonstrate that the circumstances of her discharge give rise to a reasonable inference of age discrimination as necessary to establish a prima facie case. c. Chris-Craft’s Knowledge of Woodman’s Age Cannot Be Imputed to Defendants Either on a Joint-Employer or Successor-Liability Theory Woodman submits that Chris-Craft and Fox are appropriately viewed as her “joint-employer” in the weeks preceding the merger, so that Chris-Craft’s undisputed knowledge of her age at the time of termination can properly be imputed to Fox. We agree that the evidence, viewed in the light most favorable to plaintiff, could support a finding of a joint-employer relationship. See NLRB v. Solid Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir.1994) (per curiam) (holding that “[a] joint employer relationship may be found to exist where there is sufficient evidence that [one entity] had immediate control over the other company’s employees” and identifying “commonality of hiring, firing, discipline, pay, insurance, records, and supervision” as “relevant factors”) (citing Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d 132, 137 (2d Cir.1985)); see also Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir.2003) (directing district court to apply “economic reality” test to determine whether independent entities function as plaintiffs “joint employer” under FLSA). Nevertheless, Chris-Craft’s knowledge of Woodman’s age- cannot reasonably be imputed to Fox unless Chris-Craft communicated that information to the Fox decision-makers who actually made the discharge decision or unless Chris-Craft itself played a decision-making role in that discharge. As we recently explained in Dawson v. Bumble & Bumble, 398 F.3d at 224-25, an employer’s intent to discriminate must be evaluated by reference to the decision-maker actually ordering the adverse employment action, not to other persons in the" }, { "docid": "13420801", "title": "", "text": "was no economic “nexus” between Double A Farms- and Ineoal. We reverse the decision of the District Court because the so-called “nexus” inquiry the court relied upon is irrelevant to determining whether an enterprise constitutes a “trade or business” under section 1301(b)(1). We decline to decide the case on the merits, however, for we conclude that this case should be reconsidered in the first instance by the trial court. We therefore remand the action to the District Court. I.Background A. Incoal’s Withdrawal Liability Until 1985, Incoal was a Kentucky coal mining corporation, owned in equal shares by Orville Adkins, his spouse Dixie, their son Adam and his spouse Sally. Incoal was signatory to the National Bituminous Coal Wage Agreements of 1978 and 1981, under which it was required to contribute, on behalf of its employees, to the United Mine Workers of America 1950 Pension Plan and 1974 Pension Plan (the “Plans”). The Plans are multiemployer pension plans within the meaning of sections 3(37) and 4001(a)(3) of ERISA, 29 U.S.C. §§ 1002(37), 1301(a)(3) (1988 & Supp. III 1991). In February 1985, Incoal ceased operations, and stopped contributing to the Plans. By letters dated July 5, 1985 (the “Letters”), the Plans assessed withdrawal liability against Incoal in the amount of $810,610.41. See 29 U.S.C. § 1382(2) (1988) (when an employer withdraws from a multiemployer plan, the plan sponsor “shall ... notify the employer of the amount of the withdrawal liability”). The Letters advised Incoal of its rights to request that the Plans review In-coal’s withdrawal liability pursuant to section 4219(b)(2)(A) of ERISA, 29 U.S.C. § 1399(b)(2)(A) (1988), and to initiate arbitration under section 4221 of ERISA, 29 U.S.C. § 1401 (1988). In addition, the Letters notified Incoal that “all members of a commonly-controlled group of trades and businesses are jointly and severally liable” to the Plans for payment of the withdrawal liability. See 29 U.S.C. § 1301(b)(1) (extending employer’s withdrawal liability to all “trades or businesses” that are “under common control” with the employer). In a letter dated July 16, 1985, Incoal advised the Plans that it had depleted its assets and" } ]

[ { "docid": "1933887", "title": "", "text": "impact of a statutory regulation of federal administration, Section 6(a) does not suggest that the appointment of counsel is required. Hyser v. Reed, supra n. 7, 115 U.S.App.D.C. 254, 318 F.2d at 237. A major Board contention is that, functionally viewed, its actions here at issue are exempt from the rule-making procedures because they are either general statements of policy, interpretative rules, or rules relating to agency organization, practice or procedure, all of which are explicitly exempted by Section 4 (a). We now consider each of those categories. Several courts have ruled that agency action cannot be a general statement of policy if it substantially affects the rights of persons subject to agency regulations. Lewis-Mota v. Secretary of Labor, 2d Cir. 1972, 469 F.2d 478, 482; Texaco, Inc. v. Federal Power Commission, 3d Cir. 1969, 412 F.2d 740, 744; National Motor Freight Traffic Ass’n v. United States, D.D.C.1967, 268 F.Supp. 90, 95-97, aff’d, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19; cf., Public Service Commission of State of New York v. Federal Power Commission, 1967, 126 U.S.App.D.C. 26, 373 F.2d 816; rev’d in part on other grounds, 1968, 391 U.S. 9, 88 S.Ct. 1526, 20 L.Ed.2d 388; see also Seaboard World Airlines v. Gronouski, D.D.C.1964, 230 F.Supp. 44. As the cited cases state, that outer boundary of the general policy exemption derives from congressional purpose in enacting Section 4 — that the interested public should have an opportunity to participate, and the agency should be fully informed, before rules having such substantial impact are promulgated. The guidelines which the Board had adopted prior to this action, Rules, supra, at 14-16, were of a kind calculated to have a substantial effect on ultimate parole decisions. They consist of nine general categories of factors, broken down into a total of 32 sub-categories, often fairly specific. Although they provide no formula for parole determination, they cannot help but focus the decision-maker’s attention on the Board-approved criteria. They thus narrow his field of vision, minimizing the influence of other factors and encouraging decisive reliance upon factors whose significance might have been differently articulated" } ]

[ { "docid": "5970609", "title": "", "text": "agency need only find that notice and comment are impracticable, unnecessary or contrary to the public interest. The determinative issues in this case are: 1) whether or not the equal application rule is legislative or interpretative; and 2) if it is legislative, whether or not the agency’s finding of a “serious harm or injury to the public welfare” is sufficient to exempt the issuance of the rule from the notice and comment procedure. Legislative/interpretative The test to be applied in determining whether a rule is legislative or interpretative is subject to conflicting views. Professor Davis argues that the delegated powers of an agency and the agency’s expressed intent in promulgation of the rule are the only relevant factors in making the legislative/interpretative distinction. Thus, if an agency is delegated authority to make law through rulemaking, the agency may issue legislative or interpretative rules. The intent of the Agency in promulgating the rule is determinative of the issue. Kenneth C. Davis, Administrative Law of the Seventies, (Supplementing Administrative Law Treatise) § 5.03 at 147-48 (1976), (hereinafter cited Davis). Under the Davis theory the impact of the rule is not relevant in making the legislative/interpretative determination. Davis, § 5.03-2 at 156; supplement § 5.03 at 9 (1978). The case law, however, generally holds that the primary focus of inquiry in making the legislative/interpretative distinction should be the effect of the rule. If the rule has a “substantial or significant impact” on parties the rule is legislative and therefore subject to the notice and comment provisions; the characterization by the agency is not determinative. See, e. g., Standard Oil Company v. Department of Energy, 596 F.2d 1029, 1061-62, (Em.App.1978); Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 482 (2d Cir. 1972); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 744 (3d Cir. 1969), Reynolds Metals Company v. Rumsfeld, 417 F.Supp. 365, 372 (E.D.Va. 1976), cert. den. 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 84; Saint Francis Memorial Hospital v. Weinberger, 413 F.Supp. 323, 329 (N.D.Cal.1976); Pharmaceutical Manufacturers Ass’n v. Finch, 307 F.Supp. 858, 863-64 (D.Del.1970). The Eighth Circuit has adopted the" }, { "docid": "5722801", "title": "", "text": "capricious.” The decisions of Antionilo and Kimmes foreclose that claim. It should also be noted that the interpretation of an administrative regulation by the officers or agency charged with its administration is to be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). The interpretation of regulation 416.1125(d) is not plainly erroneous. Thus we find that the assessment of in-kind support does not violate the purpose of the Social Security Act and is not arbitrary or capricious. 2. Noncompliance with the Administrative Procedures Act A regulation is invalid if the agency fails to follow procedures required by the Administrative Procedures Act, 5 U.S.C. § 553. U. S. Steel Corp. v. U. S. Environmental Protection, 595 F.2d 207, 210 (5th Cir. 1979); Anderson v. Butz, 550 F.2d 459, 462 (9th Cir. 1977); Hotch v. United States, 212 F.2d 280 (9th Cir. 1954); Carter v. Blum, 493 F.Supp. 368, 372 (S.D.N.Y.1980); Kelly v. United States Department of Interior, 339 F.Supp. 1095, 1100-1101 (E.D.Cal. 1972); City of New York v. Diamond, 379 F.Supp. 503, 518 (S.D.N.Y.1974). Section 553(b) and (d) requires the agency to publish a substantive rule in the Federal Register no less than 30 days before the rule’s effective date, and to provide an opportunity for public comment. Section 553(b)(B) allows an exception “if the agency has ‘good cause’ to believe the process would ‘be impracticable, unnecessary, or contrary to the public interest’ and if the agency publishes reasons for thinking so along with the rules in question.” Western Oil & Gas v. United States E.P.A., 633 F.2d 803, 810 (9th Cir. 1980). The Secretary did not comply with 5 U.S.C. § 553 when he proposed the presumed maximum value (PMV) now in dispute as an amendment to regulation 416.1125. Regulation 416.1125(d) was published for the first time in the Federal Register on" }, { "docid": "21902861", "title": "", "text": "at 1346, (emphasizing that this court did not invalidate the agency’s interpretation in Standard Oil simply because the underlying regulatory scheme could be construed in more than one way); UPG, Inc. v. Edwards, 647 F.2d 147 at 157 nn.24 & 26 (Em.App.1981); Mountain Fuel Supply Co. v. DOE, 656 F.2d 690 (Em.App. 1981). . 596 F.2d at 1063-65 (discussing the retroactivity tests of Securities Comm’n v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947), and Retail, Wholesale and Department Store U. v. N.L.R.B., 466 F.2d 380, 390 (D.C.Cir.1972)). See also Phillips, 449 F.Supp. at 797-98 (applying the same traditional tests rather than basing its decision on any “compelled construction” doctrine). See our discussion infra of retroactivity. . Tenneco Oil Co. v. Federal Energy Administration, 613 F.2d 298 (Em.App. 1979); Longview Refining Co. v. Shore, 554 F.2d 1006 (Em.App.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). . UPG, 647 F.2d at 157. . “Interpretative rules simply state what the statute or regulation has always meant in the opinion of the administrative agency issuing the interpretative rule.” Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082, 1100 (Em.App.1978). . Cf. Central Illinois Public Service Co. v. United States, 435 U.S. 21, 98 S.Ct. 917, 55 L.Ed.2d 82 (1978), where the Supreme Court precluded the IRS from retroactively applying a rule requiring employers to withhold certain taxes; during the relevant time, no regulation and no ruling required withholding and no employer could reasonably have suspected that withholding was required. . Judge Duniway expressed a similar view in Sauder, 648 F.2d at 1347. Closely related to the above argument is Sauder’s contention that the agency’s insistence on a formal unitization agreement is a retroactive requirement and that it would be inappropriate to apply the requirement to his case under the factors stated in Retail, Wholesale and Department Store Union v. NLRB, D.C.Cir., 1972, 466 F.2d 380, 390, and repeated by us in Standard Oil, supra, 596 F.2d at 1963-5. However, we conclude that the agency’s interpretation is not retroactive. It does" }, { "docid": "1683908", "title": "", "text": "hold Revenue Ruling 69-545 invalid because it was issued without compliance with the rule-making procedures required by Section 553 of the Administrative Procedure Act, 5 U.S.C. § 553, as indicated in my dissent to the panel opinion. . American President Lines, Ltd. v. Federal Maritime Comm’n, 114 U.S.App.D.C. 418, 316 F.2d 419, 422 (1968). See Hou Ching Chow v. Attorney-General, 362 F.Supp. 1288, 1292 (D.D.C.1973); Continental Oil Co. v. Burns, 317 F.Supp. 194 (D.Del.1970). Cf. Pacific Gas & Elec. Co. v. FPC, 164 U.S.App.D.C. -, at -, n. 14,---, 506 F.2d 33, at 37, n. 14, 38-40 (1974); Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); California Citizens Band Ass’n v. United States, 375 F.2d 43 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112 (1967). There is nothing in Gibson Wine Co. v. Snyder, 90 U.S.App.D.C. 135, 194 F.2d 329 (1952), which is inconsistent with these cases. There is, I think no one would doubt, a very substantial difference between regulations defining a type of grape and regulations interpreting such legislative phrases as “the public interest” or “tax avoidance purpose.” . See United States v. Cartwright, 411 U.S. 546, 550, 93 S.Ct. 1713, 36 L.Ed.2d 528 (1973); Bingler v. Johnson, 394 U.S. 741, 749-751, 89 S.Ct. 1439, 22 L.Ed.2d 695 (1969); Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831 (1948); Commissioner of Internal Revenue v. O. Liquidating Corp., 292 F.2d 225, 231 (3d Cir.), cert. denied, 368 U.S. 898, 82 S.Ct. 177, 7 L.Ed.2d 94 (1961); Kern v. Granquist, 291 F.2d 29, 32 (9th Cir. 1961). Compare Kurzner v. United States, 413 F.2d 97, 112 (5th Cir. 1969) with O’Neill v. United States, 410 F.2d 888 (6th Cir. 1969). . At 1290 (emphasis added). . See also NLRB v. Wyman-Gordon Co., 394 U.S. 759, 775-780, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (Douglas, J., dissenting)." }, { "docid": "728521", "title": "", "text": "plaintiffs have failed to exhaust administrative remedies by not appealing to the Federal Energy Regulatory Commission (“FERC”) is without merit. Under the plain language of the statute, 42 U.S.C. § 7194(b)(1) (1976 & Supp. II 1978), FERC’s jurisdiction extends only “to a denial of a request for adjustment.” Plaintiffs here appeal from the grant of such exception relief, which falls outside the contemplated limits of FERC review. Both OHA and FERC regulations confirm this clear statutory meaning. Moreover, FERC’s repeated refusals to review OHA decisions granting exception relief render such an administrative appeal futile and therefore unnecessary for jurisdictional purposes. See, e. g„ Weinberger v. Salfi, 422 U.S. 749, 765-67, 95 S.Ct. 2457, 2466-67, 45 L.Ed.2d 522 (1975). The decision in Texaco v. DOE, 460 F.Supp. 339 (D.D.C.1978), appeal dismissed for lack of jurisdiction, 616 F.2d 1193 (Em.App.1979), appeal docketed, Nos. 79-1643 et al. (D.C.Cir., June 25,1979), is distinguishable on its facts and in any event not controlling. Plaintiffs’ objections to the instant decision when it was proposed by OHA were no more than comments from an interested party specifically provided for by regulation. See 10 C.F.R. § 205.62 (1979). To construe these objections as a request for adjustment would, in effect, transform each act of participation in an exception proceeding into a separate adjudicatory event, an obviously unreasonable and unintended result. . Exxon, Mobil, Texaco, Gulf, and other mainland oil companies operate Puerto Rican subsidiaries that market gasoline on the island. Shell P.R. is a subsidiary of a foreign entity, the Royal Dutch/Shell Group, with which plaintiff Shell Oil Company also is affiliated. The parent corporation of Shell P.R. also owns 69 percent of Shell USA, and there is some overlap in Board of Directors membership of the related firms. . See Texaco, Inc. v. Federal Energy Administration, 398 F.Supp. 865, 877 (D.D.C.1975), affirmed, 531 F.2d 1071, 1077 (Em.App.), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). . See 10 C.F.R. §§ 205.2, 205.55 (1979). . See Exceptions and Appeals Guidelines, 7 En. Mngm’t Rep. (CCH) 80,006 (1978). . See, e. g., H.R.Rep.No.539, 95th Cong.," }, { "docid": "14486281", "title": "", "text": "R. B. v. WymanGordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion); Wagner Electric Corp. v. Yolpe, 466 F.2d 1013 (3d Cir. 1972); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740 (3d Cir. 1969); Hotch v. United States, 212 F.2d 280, 14 Alaska 594 (9th Cir. 1954); Kelly v. United States Department of the Interior, 339 F.Supp. 1095 (E.D.Cal.1972); Pharmaceutical Manufacturers Association v. Finch, 307 F.Supp. 858 (D.Del.1970); National Motor Freight Traffic Association, Inc. v. United States, 268 F.Supp. 90 (D.D.C. 1967) (three judge court), aff’d per curiam, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968); Seaboard World Airlines, Inc. v. Gronouski, 230 F.Supp. 44 (D.D. C.1964). As one of the earliest cases to consider the subject stated: “The Acts [the Administrative Procedure Act and the Federal Register Act] set up the procedure which must be followed in order for agency rulings to be given the force of law. Unless the prescribed procedures are complied with, the agency (or administrative) rule has not been legally issued, and consequently it is ineffective.” Hotch, supra, 212 F.2d at 283. As a result, the new regulation is invalid, unless, as the federal defendants claim, it falls within one of the exceptions enumerated in § 553. Section 553(d)(3) provides for publication of the proposed rule thirty days before its effective date, except “as provided by the agency for good cause found and published with the rule.” Section 553(b) requires the agency to publish in the Federal Register “[g]eneral notice of proposed rule making,” except: “(B) When the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The new regulation invokes the “good cause” exception by stating in its preamble: “We find that notice of proposed rule making and delay in the effective date would be contrary to the public interest and accordingly such notice and delay are not required under 5 U. S.C. 553(b) and (d). Because certain governmental entities" }, { "docid": "14486280", "title": "", "text": "on January 21, 1974, to take effect on the date of publication; that is, the thirty day notice of proposed rule making required by the Administrative Procedure Act, 5 U.S.C. § 553, was not given. The Administrative Procedure Act provides that “[gjeneral notice of proposed rule making shall be published in the Federal Register. . . .” (5 U.S.C. § 553(b)) and that “[t]he required publication . . of a substantive rule shall be made not less than 30 days before its effective date. . . .” (id., § 553(d)). The purpose of these requirements is two-fold: “Section 553 was enacted to give the public an opportunity to participate in the rule-making process. It also enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated.” Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 744 (3d Cir. 1969). A plethora of cases hold that an administrative rule which is not promulgated in accordance with these procedures is void. See, e. g., N. L. R. B. v. WymanGordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion); Wagner Electric Corp. v. Yolpe, 466 F.2d 1013 (3d Cir. 1972); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740 (3d Cir. 1969); Hotch v. United States, 212 F.2d 280, 14 Alaska 594 (9th Cir. 1954); Kelly v. United States Department of the Interior, 339 F.Supp. 1095 (E.D.Cal.1972); Pharmaceutical Manufacturers Association v. Finch, 307 F.Supp. 858 (D.Del.1970); National Motor Freight Traffic Association, Inc. v. United States, 268 F.Supp. 90 (D.D.C. 1967) (three judge court), aff’d per curiam, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968); Seaboard World Airlines, Inc. v. Gronouski, 230 F.Supp. 44 (D.D. C.1964). As one of the earliest cases to consider the subject stated: “The Acts [the Administrative Procedure Act and the Federal Register Act] set up the procedure which must be followed in order for agency rulings to be given the force of law. Unless the prescribed procedures are complied with, the agency (or administrative) rule has not been legally issued, and" }, { "docid": "23642956", "title": "", "text": "F.Supp. 452 (D.C.Colo.1954). . Cf. Moving Corporation v. FTC, 290 F.2d 803 (2d Cir. 1961). . National Labor Relations Board v. Wy-man-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) ; Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972) ; Texaco Inc. v. Federal Power Commission, 412 F.2d 740 (3 Cir. 1969) ; Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (D.C.Cir. 1964) ; Ann Arbor Railroad Co. v. United States, 358 F.Supp. 933 (E.D.Pa.1973) ; Kelly v. United States Department of Interior, 339 F.Supp. 1095 (E.D.Cal.1972) ; Gerends v. Butz, 357 F.Supp. 143 (1973). . The FEO in its February 21, 1974, order found inter alia that “the price exemption has no significant impact on the supply of crude oil”, that it “would tend to have a disruptive impact on the national distribution system”, that it was necessary to eliminate the “incentive for state and local governments to seek to enter into agreements or arrangements regarding the sale of covered products which could tend to result in further dislocations in the national distribution system . . . [and! undermine existing supplier relationships and magnify the inflationary effects of the exemption”. . Cf. Mandel v. Simon, 493 F.2d 1239, 1240 (T.E.C.A.1973), supra; University of Southern California v. Cost of Living Council, 472 F.2d 1065, 1069 (T.E.C.A.1972). . Rule 53, Fed.R.Civ.P. . 5A Moore, § 52.03 [2] pp. 2663-64. See e. g. U. S. v. Mississippi Valley Co., 364 U.S. 520, 526, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961) ; United States v. United States Gypsum, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 1147 (1948) ; U. S. v. Richberg, 398 F.2d 523, 526 (5th Cir. 1968) ; University Hills Inc. v. Patton, 427 F.2d 1094, 1099 (6th Cir. 1970) Rowe v. General Motors Corporation, 457 F.2d 348, 351 (5th Cir. 1972). . Baldwin County Elec. Mem. Corp. v. Price Commission, 481 F.2d 920 (T.E.C.A.1973) ; University of Southern California v. Cost of Living Council, 472 F.2d 1065 (T.E.C.A.1972), supra; United States v. Lieb, 462 F.2d 1161 (T.E.C.A.1972)." }, { "docid": "21907540", "title": "", "text": "v. Long Island R. R., -U.S. at----, 102 S.Ct. at 1353-55, 71 L.Ed.2d 547; United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936); bottling mineral water, New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326 (1946); selling liquor, Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307 (1934); the power to allow private citizens to engage in strip mining, Nance v. Environmental Protection Agency, 645 F.2d 701, 716 (9th Cir.), cert, denied, - U.S. -, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981); regulation of air carriers, Hughes Air Corp. v. Public Utilities Commission of the State of California, 644 F.2d 1334 (9th Cir. 1981); regulation and management of game, United States v. Helsley, 615 F.2d 784 (9th Cir. 1979); setting of safety standards for automobiles, Vehicle Equipment Safety Commission v. National Highway Traffic Commission, 611 F.2d 53 (4th Cir. 1979); operation of an oil and gas company, Public Service Company of North Carolina, Inc. v. Federal Energy Regulatory Commission, 587 F.2d 716 (5th Cir.), cert, denied sub nom. Louisiana v. Federal Energy Regulatory Commission, 444 U.S. 879, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979); state regulation of employee benefit plans, Hewlett-Packard Co. v. Barnes, 425 F.Supp. 1294 (N.D.Cal.1977), aff’d, 571 F.2d 502 (9th Cir.), cert, denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978); Standard Oil Co. v. Agsalud, 442 F.Supp. 695, 710-11 (N.D.Cal.1977), aff’d, 633 F.2d 760 (9th Cir. 1980), aff’d, 454 U.S. 801,102 S.Ct. 79, 70 L.Ed.2d 75 (1981); air pollution plans related to highway and bridge regulation, Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir. 1977), and state operation of a telephone company, Puerto Rico Telephone Co. v. FCC, 553 F. 2d 694 (1st Cir. 1977). The Sixth Circuit has suggested that courts, in deciding this question, have considered such factors as whether the activity benefits the community as a whole, whether it was made available to the public at little or no expense, whether it was undertaken for the purpose of public service rather than profit, whether the" }, { "docid": "21902866", "title": "", "text": "1230 (Em.App.1981); UPG, Inc. v. Edwards, 647 F.2d 147 (Em.App.1981), supra; Energy Consumers, Etc. v. Dept. of Energy, 632 F.2d 129 (Em.App.), cert. denied, 449 U.S. 832, 101 S.Ct. 102, 66 L.Ed.2d 38 (1980), supra; Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082 (Em.App.1978), supra; General Crude Oil Co. v. Department of Energy, 585 F.2d 508 (Em.App. 1978), cert. denied, 440 U.S. 912, 99 S.Ct. 1226, 59 L.Ed.2d 461 (1979). . See State of La. v. Department of Energy, 519 F.Supp. 351 (W.D.La.1981), and earlier opinion in same case, 507 F.Supp. 1365, supra, which did not question Ruling 1975-15 in its context, but disapproved retroactive application of later rulings of the agency dealing with reservoir-wide production units claimed to be properties in view of the Louisiana law and the Unit agreements involved there. While the district court applied the “compelled construction” formula now rejected by us as a controlling rule for testing retroactive applicability of interpretations, more significantly it found that the “unit as property” concept applied also to reservoir-described units. We have no such complication in the present case; nor does that case, on the particular merits of which we express no opinion, challenge the concept of the unit’s constituting the “property.” . General Crude, 585 F.2d at 514 (see also appendix to opinion), deals with arguments strikingly similar in several respects to those of the case before us. There the district court had held that an agency decision was inherently arbitrary, not consistent with FEA regulations and directly contrary to the policy objectives of the EPAA. This court reversed. Up to the point General Crude Oil Company established the classification of its oil under review it had applied a different designation (cf. Pennzoil’s treatment of its Tinsley Field production). Immediately prior to the alteration of its practice, the oil company orally consulted with an IRS agent (then involved in the administration of CLC regulations), such informal consultation apparently being instrumental in the change of practice later challenged by the agency. As in the present case the oil company did not request a formal interpretation from" }, { "docid": "21902865", "title": "", "text": "1975-15 as modified on February 1, 1976.” Ruling 1977-2, 42 Fed.Reg. 4409, 4415 (1977). Under Ruling 1975-15, the BPCL, in the case of a pre-1972 unitization, is the total 1972 monthly production from the unit. In the case of a post-1972 unitization, the BPCL is the total 1972 monthly production from all of the leases that now comprise the unit. We intimate no view on the validity of the promulgation of Ruling 1975-15, since the issue was raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877, 49 L.Ed. 826 (1976). Grigsby, 585 F.2d at 1084 n.1. . Taunton Municipal Lighting Plant Group, Inc. v. Department of Energy, 669 F.2d 710 (Em.App.1982); Wiggins Brothers v. Department of Energy, 667 F.2d 77 (Em.App.1981) cert. denied,-U.S.-, 102 S.Ct. 1749, 72 L.Ed.2d 161 (1982); Koch Refining Co. v. U.S. Dept. of Energy, 658 F.2d 799 (Em.App.1981); Mountain Fuel Supply Co. v. U.S. Dept. of Energy, 656 F.2d 690 (Em.App. 1981), supra; Independent Oil v. Department of Energy, 650 F.2d 1230 (Em.App.1981); UPG, Inc. v. Edwards, 647 F.2d 147 (Em.App.1981), supra; Energy Consumers, Etc. v. Dept. of Energy, 632 F.2d 129 (Em.App.), cert. denied, 449 U.S. 832, 101 S.Ct. 102, 66 L.Ed.2d 38 (1980), supra; Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082 (Em.App.1978), supra; General Crude Oil Co. v. Department of Energy, 585 F.2d 508 (Em.App. 1978), cert. denied, 440 U.S. 912, 99 S.Ct. 1226, 59 L.Ed.2d 461 (1979). . See State of La. v. Department of Energy, 519 F.Supp. 351 (W.D.La.1981), and earlier opinion in same case, 507 F.Supp. 1365, supra, which did not question Ruling 1975-15 in its context, but disapproved retroactive application of later rulings of the agency dealing with reservoir-wide production units claimed to be properties in view of the Louisiana law and the Unit agreements involved there. While the district court applied the “compelled construction” formula now rejected by us as a controlling rule for testing retroactive applicability of interpretations, more significantly it found that the “unit as property” concept applied also to reservoir-described units. We" }, { "docid": "18764891", "title": "", "text": "activities assigned to and carried on by the Price Commission). . See Ashland Oil Co. of Cal. v. Union Oil Co. of Cal., 567 F.2d 984 (Em.App.1977), cert. denied, 435 U.S. 994, 98 S.Ct. 1644, 56 L.Ed.2d 83 (1978); United States v. Thriftyman, Inc., 704 F.2d 1240 (Em.App.1983), and United States v. Phoenix Petroleum Co., 727 F.2d 1579 (Em.App.1984) (passing upon the validity of subpoenas issued by DOE in its investigation of violations of EPAA); Mobil Oil Corp. v. Dept. of Energy, 728 F.2d 1477 (Em.App.1983), cert. denied, — U.S.-, 104 S.Ct. 3545, 82 L.Ed.2d 849 (1984); Sohio Petroleum Co. v. Caribou Four Corners, 573 F.2d 1259 (Em.App.1978); Francis Oil and Gas, Inc. v. Exxon Corp., 687 F.2d 484 (Em. App.), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982); and Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375 (10th Cir.1978), cert. denied, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1058 (1979) (construing contracts in the light of the EPAA); Rainey v. Union Oil Co. of California, 732 F.2d 1563, 1564, n. 1 (Em.App.1984) (state law and EPAA claims commingled or interdependent); Citronelle-Mobile, Etc. v. Gulf Oil Corp., 591 F.2d 711 (Em.App.), cert. denied, 444 U.S. 879, 100 S.Ct. 168, 62 L.Ed.2d 109 (1979) (breach of contract claim with counterclaim implicating the EPAA); Mosley v. Nationwide Purchasing, Inc., 485 F.2d 418 (Em. App.1973) (construing the venue statute in ESA case); Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082 (Em.App.1978) (construing the Administrative Procedure Act in connection with a claim under the EPAA); MGPC, Inc. v. Department of Energy, 673 F.2d 1277 (Em.App.1982) (discovery and evidentiary hearing issues implicating an EPAA claim before the district court); and McWhirter Distributing Co., Inc. v. Texaco, Inc., 668 F.2d 511 (Em.App.1981) (considering a claim under the Federal Tort Claims Act for alleged tortious violation by DOE of its own regulations instigating an investigation of a supplier, and disposing of the case on the basis of the EPAA). ESTES, Judge, specially concurring. I concur with the result of Judge Sear’s opinion and with its reasoning as to" }, { "docid": "880976", "title": "", "text": "the effective date, as opposed to mere filing with the office. The common meaning of the word should apply, there being no statutory definition. Clearly “publication” in the Federal Register requires more than mere “filing.” The question remains whether the regulation is wholly void because of the procedural default or whether it may be effective 30 days following the publication of the rule as adopted. We believe that § 553(d) is susceptible of a reasonable construction that the regulation may be saved and held valid after passage of the 30-day notice period. This was the result reached in Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 482 (2d Cir.), and the view indicated also at the conclusion of the Gavrilo-vic opinion. See 551 F.2d at 1106. But see Sannon v. United States, supra, 460 F.Supp. at 468; City of New York v. Diamond, 379 F.Supp. 503, 516 (S.D.N.Y.); cf. Shell Oil Co. v. Federal Energy Administration, 440 F.Supp. 876, 887 (D.Del.), aff’d, 574 F.2d 512, 516 (T.E.C.A.). We thus conclude that the regulation was lawfully effective on and after February 4, 1977. The record is unclear as to what the effect of this holding would be. Consequently we conclude that the district court’s judgment on the plaintiffs’ first cause of action should be vacated and the cause remanded for further proceedings consistent with our holding that the regulation in question was valid, but only beginning on February 4, 1977. III Plaintiffs’ second cause of action alleges that the Secretary violated the terms of his own regulation by not issuing oil and gas leases on these pending applications prior to the effective date of the amended regulation. II R. 5 (¶30). This claim is based primarily on the prefatory language which accompanied the January 5, 1977, publication of the adopted regulation in which the Secretary stated, inter alia, that: We are amending the regulations to change the effective date from July 1, 1976, to February 1, 1977, to give various offices of the Bureau of Land Management additional time to see if necessary work can be completed on pending applications so" }, { "docid": "22421345", "title": "", "text": "parties.” National Motor Freight Traffic Association v. United States, 268 F.Supp. 90, 96 (D.D.C.1976) (three judge court) aff’d per curiam, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968). The APA’s rulemaking procedures “were designed to assure fairness and mature consideration of rules of general application”. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709 (1969). The prior publica tion and opportunity for comment requirements enable “the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated”. Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3 Cir. 1969). (b) Provisions of the Federal Energy Administration Act Sections 7(i)(l)(B) and (C) of the Federal Energy Administration Act, 15 U.S.C. § 766(i)(l)(B) and (C), were applicable to the FEA from the time the FEAA was enacted on May 7, 1974 until they were repealed in 1977 by the Department of Energy Organization Act. Section 7(i)(l)(B) required that notice of any proposed rule or regulation “shall be given by publication” in the Federal Register, and that a “minimum of ten days following such publication shall be provided for opportunity to comment”. Section 7(i)(l)(C) provided that if the rule “is likely to have a substantial impact on the Nation’s economy or large numbers of individuals or businesses, an opportunity for oral presentation of views, data, and arguments shall be afforded. To the maximum extent practicable, such opportunity shall be afforded prior to the issuance of such rule, regulation, or order, but in all cases such opportunity shall be afforded no later than forty-five days after the issuance of any such rule, regulation, or order.” As the court recognized in Phillips Pet. II, these requirements of the FEAA are “more rigorous than those provided for in the APA”. 449 F.Supp. at 799-800. These FEAA notice requirements were construed by this court in Shell Oil Co. v. Federal Energy Administration, 574 F.2d 512, 516 (Em.App.1978), where we held that a regulation which determined prices for unleaded gasoline by reference to those for premium gasoline was invalid for failure to" }, { "docid": "7913444", "title": "", "text": "in a commercial setting: “The command of the Administrative Procedure Act is not a mere formality. Those who are called upon by the government for a countless variety of goods and services are entitled to have notice of the standards and procedures which regulate these relationships. Neither appellants nor others similarly situated can turn to any official source for guidance as to what acts will precipitate a complaint of misconduct. . . .” Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964). . The contention has not been pressed in the present case, but it has been held in other contexts that failure to comply with rule making procedures under APA is fatal to the validity of the rules themselves. See, e. g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969); Pickus v. United States, supra; United States v. Finley Coal Company, 493 F.2d 285 (6th Cir.), cert. denied, 419 U.S. 1089, 95 S.Ct. 679, 42 L.Ed.2d 681 (1974); Wagner Electric Corporation v. Volpe, 466 F.2d 1013 (3d Cir. 1972); Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); City of New York v. Diamond, 379 F.Supp. 503 (S.D.N.Y.1974); Kelly v. United States Department of Interior, 339 F.Supp. 1095 (E.D.Cal.1972); National Motor Freight Traffic Ass’n v. United States, 268 F.Supp. 90 (D.C.D.C. Three Judge Court 1967), aff'd per curiam, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968). Cf. Mobil Oil Corporation v. Federal Power Commission, 157 U.S.App.D.C. 235, 483 F.2d 1238 (1973); Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964), supra. This point goes more to the merits of plaintiffs’ claim; but the mere possibility of such consequence with reference to certain “policies” of the Bureau further supports justiciability in the sense of emphasizing concrete impact upon the appellants and those similarly situated. . The appellants point out in their reply brief with good reason: “Similar difficulties can be expected to bedevil every subsequent effort to resolve defendants’ obligations under the Administrative Procedure Act. If this case is dismissed, every subsequent effort to raise the same issues" }, { "docid": "7220265", "title": "", "text": "Sherman Act has been held applicable to professional sports teams by numerous lesser federal courts. See, e.g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 141-42, 88 S.Ct. 1981, 1985-86, 20 L.Ed.2d 98 (1968); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199 (1951); Radovich v. National Football League, 352 U.S. 445, 449-52, 77 S.Ct. 390, 392-94, 1 L.Ed.2d 456 (1957); Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Linseman v. World Hockey Association, 439 F.Supp. 1315 (D.Conn.1977); Robertson v. National Basketball Association, 389 F.Supp. 867 (S.D.N.Y.1975); Philadelphia World Hockey Club Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 462 (E.D.Pa.1972); Smith v. Pro-Football, Inc., 593 F.2d 1173 (D.C.Cir.1978); Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976), cert. denied, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Los Angeles Memorial Coliseum Commission v. NFL, (“Coliseum II”), 484 F.Supp. 1274 (C.D.Cal.), rev’d on other grounds, 634 F.2d 1197 (9th Cir. 1980); Los Angeles Memorial Coliseum v. NFL,(“Coliseum I”), 468 F.Supp. 154, 164 (C.D.Cal.1979); Bowman v. NFL, 402 F.Supp. 754 (D.Minn.1975); Kapp v. NFL, 390 F.Supp. 73 (N.D.Cal.1974), appeal vacated, 586 F.2d 644 (9th Cir. 1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). Cf. San Francisco Seals Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D.Cal.1974); Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974). We are unpersuaded by the efforts of the district judge to distinguish these cases from the present one. Although many involved player relations or playing sites, which affect competition between member teams, at least one raised issues between leagues. In Radovich v. National Football League, supra, the issue was whether an NFL boycott of a player who had previously accepted employment with a competing pro-football league, the All America Conference, violated § 1 of the Sherman Act. The Court held in Radovich that it did, even though that boycott might not, in the words" }, { "docid": "22421344", "title": "", "text": "F.2d 1005, 1014-15 (Em.App.1975), we held invalid a regulation promulgated without notice which “defined for the first time profit margin violations”. We noted our concern with agency actions which evidenced “a cavalier disregard of procedural requirements”. Our opinion in National Helium Corp. v. FEA, 569 F.2d 1137, 1144-46, (Em.App. 1977), reviewed our prior cases and considered in particular the “good cause” and “interpretative rules” exceptions to the notice and comment requirements of the APA. With respect to the latter exception, we summarized the applicable principles as follows: In construing this exception, rather than rely on a “facile semantic distinction” between interpretative rules and substantive or legislative rules, courts have looked instead to the “basic purpose of [the] statutory requirements [of notice and comment]” in deciding whether the requirements should be imposed. Pharmaceutical Manufacturer’s Association v. Finch, 307 F.Supp. 858, 863 (D.Del.1970). When an agency action has “palpable effects” upon the regulated industry and the public in general, it is necessary to expose that action “to the test of prior examination and comment by the affected parties.” National Motor Freight Traffic Association v. United States, 268 F.Supp. 90, 96 (D.D.C.1976) (three judge court) aff’d per curiam, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968). The APA’s rulemaking procedures “were designed to assure fairness and mature consideration of rules of general application”. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709 (1969). The prior publica tion and opportunity for comment requirements enable “the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated”. Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3 Cir. 1969). (b) Provisions of the Federal Energy Administration Act Sections 7(i)(l)(B) and (C) of the Federal Energy Administration Act, 15 U.S.C. § 766(i)(l)(B) and (C), were applicable to the FEA from the time the FEAA was enacted on May 7, 1974 until they were repealed in 1977 by the Department of Energy Organization Act. Section 7(i)(l)(B) required that notice of any proposed rule or regulation “shall be given by publication” in" }, { "docid": "5970610", "title": "", "text": "cited Davis). Under the Davis theory the impact of the rule is not relevant in making the legislative/interpretative determination. Davis, § 5.03-2 at 156; supplement § 5.03 at 9 (1978). The case law, however, generally holds that the primary focus of inquiry in making the legislative/interpretative distinction should be the effect of the rule. If the rule has a “substantial or significant impact” on parties the rule is legislative and therefore subject to the notice and comment provisions; the characterization by the agency is not determinative. See, e. g., Standard Oil Company v. Department of Energy, 596 F.2d 1029, 1061-62, (Em.App.1978); Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 482 (2d Cir. 1972); Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 744 (3d Cir. 1969), Reynolds Metals Company v. Rumsfeld, 417 F.Supp. 365, 372 (E.D.Va. 1976), cert. den. 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 84; Saint Francis Memorial Hospital v. Weinberger, 413 F.Supp. 323, 329 (N.D.Cal.1976); Pharmaceutical Manufacturers Ass’n v. Finch, 307 F.Supp. 858, 863-64 (D.Del.1970). The Eighth Circuit has adopted the substantial impact test. American Bancorporation, Inc. v. Board of Governors of Federal Reserve System, 509 F.2d 29, 33 (8th Cir. 1974) (citing cases). Since the equal application rule is a legislative rule under either test, the court need not rest its decision solely on either test. The FEA had the authority to promulgate legislative rules concerning the pricing and allocation of fuels. In promulgating the equal application rule the FEA intended to exercise its legislative authority as evidenced by the fact that it expressly sought to rely on the exception to the notice and comment procedures. Thus, the rule is a legislative rule under the Davis test. The rule also has a substantial impact on fuel retailers and resellers. The rule introduced a new method of computing product cost increases which could be “banked.” It had the effect of restricting the cost increase which could be ‘banked” in those instances where the market price fell below the ceiling price. For examples of what constitutes “substantial impact” thereby requiring a notice and comment procedure, see, e." }, { "docid": "23642955", "title": "", "text": "as of tlie earlier date: A three hundred percent increase in the price of uncontrolled oil, which “means that State and local governments are now receiving less than one-half of the true market value for their oil”; based upon revenue estimates and the actions of the Federal Energy Office seeming to assure the continuance of the exemption, State and local governments involved commenced plans to devote millions of dollars to increased secondary recovery operations; proposals were made by prominent State officials to utilize increased revenues for rapid transit and other purposes; basic legislation, such as the Emergency Petroleum Allocation Act, was enacted. . See Buckeye Cablevision, Inc. v. FCG, 128 U.S.App.D.C. 262, 387 F.2d 220, 226 (1967). . See Retail, Wholesale and Department Store Union, 151 U.S.App.D.C. 209, 466 F.2d 380 (1974). . See Woods v. Stone, 333 U.S. 472, 477, 68 S.Ct. 624, 92 L.Ed. 815; University of Southern California v. Cost of Living Council, 472 F.2d 1065 (T.E.C.A.1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590; Fancher v. Clark, 127 F.Supp. 452 (D.C.Colo.1954). . Cf. Moving Corporation v. FTC, 290 F.2d 803 (2d Cir. 1961). . National Labor Relations Board v. Wy-man-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) ; Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972) ; Texaco Inc. v. Federal Power Commission, 412 F.2d 740 (3 Cir. 1969) ; Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (D.C.Cir. 1964) ; Ann Arbor Railroad Co. v. United States, 358 F.Supp. 933 (E.D.Pa.1973) ; Kelly v. United States Department of Interior, 339 F.Supp. 1095 (E.D.Cal.1972) ; Gerends v. Butz, 357 F.Supp. 143 (1973). . The FEO in its February 21, 1974, order found inter alia that “the price exemption has no significant impact on the supply of crude oil”, that it “would tend to have a disruptive impact on the national distribution system”, that it was necessary to eliminate the “incentive for state and local governments to seek to enter into agreements or arrangements regarding the sale of covered products which could tend to result in" }, { "docid": "5722802", "title": "", "text": "462 (9th Cir. 1977); Hotch v. United States, 212 F.2d 280 (9th Cir. 1954); Carter v. Blum, 493 F.Supp. 368, 372 (S.D.N.Y.1980); Kelly v. United States Department of Interior, 339 F.Supp. 1095, 1100-1101 (E.D.Cal. 1972); City of New York v. Diamond, 379 F.Supp. 503, 518 (S.D.N.Y.1974). Section 553(b) and (d) requires the agency to publish a substantive rule in the Federal Register no less than 30 days before the rule’s effective date, and to provide an opportunity for public comment. Section 553(b)(B) allows an exception “if the agency has ‘good cause’ to believe the process would ‘be impracticable, unnecessary, or contrary to the public interest’ and if the agency publishes reasons for thinking so along with the rules in question.” Western Oil & Gas v. United States E.P.A., 633 F.2d 803, 810 (9th Cir. 1980). The Secretary did not comply with 5 U.S.C. § 553 when he proposed the presumed maximum value (PMV) now in dispute as an amendment to regulation 416.1125. Regulation 416.1125(d) was published for the first time in the Federal Register on January 29, 1974. It was preceded by the following preamble: “Notice is hereby given that the rules contained in the following notices of proposed rule making and proposed regulations will be applied in order to administer the supplementary security income program during the period from January 1, 1974 when the new program became effective, until final regulations are adopted.” (Emphasis added.) 39 F.R. 3674. However, the PMV approach now in dispute was not published until October 20, 1975, when the Secretary published a proposed amendment to 416.1125. These new rules were given a limited retroactive effect: “The rules set forth in 416.1125(bX2), (d), and (3) of the proposed amendment pertaining to support and maintenance provided to individuals living in households will be applied by the Social Security Administration with respect to supplemental security income benefits payable for months beginning with December 1974, until a final regulation is adopted.” (Emphasis added.) 40 F.R. 48937-8. The Secretary relies on the “good cause exception” in Section 553(b)(B) for the proposition that the agency could waive the 30-day notice" } ]

[ { "docid": "9893931", "title": "", "text": "concerning Jenkins from several witnesses, including his mother. No subsequent superseding indictment was filed. Jenkins asserts that the government was attempting to obtain more evidence to strengthen its pending case against him, an improper use of the grand jury. See United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979). He argues that the lower court erred in adopting the magistrate’s conclusion that the primary purpose of the testimony was to investigate new charges, with only an incidental effect on the pending prosecution. We said in Gibbons that the grand jury process is abused when the prosecutor uses it “for the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery, although this may be an incidental benefit.” Id. In two in camera hearings, the magistrate found that Jenkins had failed to demonstrate this type of abuse. Jenkins’ conclusory statements in his brief and our review of the record provide us with no reason to disturb that finding. Moreover, Jenkins has not shown how the testimony before the grand jury amounted to prejudice. See Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (dismissal of indictment for prosecutorial misconduct before grand jury subject to harmless error analysis). Jenkins does not argue that the grand jury testimony was employed against him in any fashion or that it had any effect whatsoever on the fairness of his trial based on the indictment issued before any of the purported abuse occurred. His claim of grand jury abuse must therefore fail. Jenkins’ conviction is AFFIRMED. . Doran was retried separately and convicted of seven counts upon a separate, superseding indictment. On appeal, Doran’s conviction on seven counts was affirmed as to five counts, and was reversed on Speedy Trial Act grounds as to the two remaining counts, which had originated in the initial indictment. See United States v. Doran, 882 F.2d 1511 (10th Cir.1989). . The definition of a continuing criminal enterprise in the version of the statute in effect at the time these offenses occurred was found at" } ]

[ { "docid": "7300270", "title": "", "text": "to ensure that the grand jury, a body operating peculiarly under court supervision, is not misused by the prosecutor.... ” Id. (quoting In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir.1985)). Given this reality, appellate tribunals have crafted an intermediate standard-of review for evaluating district court orders accepting or rejecting claims of grand jury abuse. Under that standard, we accord respect to the lower court’s findings, but scrutinize them somewhat less deferentially than we would if either the traditional “abuse of discretion” or “clearly erroneous” rubric applied. See United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994); Fernandez Diamante, 814 F.2d at 71. This intermediate level of appellate scrutiny is akin to what we have in other contexts termed “independent review.” E.g., United States v. Tortora, 922 F.2d 880, 882-83 (1st Cir.1990) (describing independent review as “an intermediate level of scrutiny, more rigorous than the abuse-of-discretion or dear-error standards, but stopping short of plenary or de novo review,” and deeming such review appropriate for appellate oversight of pretrial detention orders). III. ANALYSIS Although the grand jury operates under judicial supervision, it is essentially an independent institution. In recognition of this status, courts afford grand jury proceedings a presumption of regularity. United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943). This presumption attaches even after the grand jury has returned an initial indictment. After all, superseding indictments setting forth new charges or adding new defendants are familiar fare. E.g., United States v. Melendez, 228 F.3d 19, 21 (1st Cir.2000) (superseding indictment added two new defendants); United States v. Pena-Lora, 225 F.3d 17, 23 (1st Cir.2000) (superseding indictment set forth new charges); United States v. Bender, 221 F.3d 265, 267 (1st Cir.2000) (superseding indictment added two counts); United States v. Li, 206 F.3d 56, 59 (1st Cir.2000) (en banc) (superseding indictment added four new defendants). It follows logically that, as a general rule, “evidence obtained pursuant to [an ongoing grand jury] investigation may be offered at the trial on the initial charges.” Leung, 40 F.3d at" }, { "docid": "12703942", "title": "", "text": "the grand jury to testify about additional substantive offenses committed by the indicted defendant or uncharged crimes committed by other individuals. For example, in LaPorta, 46 F.3d at 154-55, 161, the legitimate purpose found to exist was the obtaining of a superceding indictment that contained allegations of violations of federal law not previously charged. In Sasso, 59 F.3d at 351-52, the grand jury was investigating persons not previously charged. In Leung, 40 F.3d at 581-82, the post-indictment subpoena was to obtain bank records as part of an investigation of possible money laundering not previously charged. In Gibbons, 607 F.2d at 1328-29, the post-indictment testimony was designed to identify and charge additional coconspirators. In In re Grand Jury Proceedings, 632 F.2d 1033, 1040-41 (3d Cir. 1980), the subpoenas at issue were intended to aid in the investigation of persons other than the already indicted defendant. Moreover, contrary to the government’s contention, the Sixth Circuit's unpublished opinion United States v. Austin, 202 F.3d 270 (Table), 2000 WL 32017 *7 (6th Cir.) (unpublished), cert. denied - U.S. -, 120 S.Ct. 1984, 146 L.Ed.2d 812 (2000), does not stand for the proposition that the addition of overt acts in a conspiracy case was sufficient to establish that the grand jury was not used solely or predominantly to prepare a pending indictment. In Austin, the superceding indictment also added two new defendants and four new counts, one of which charged an already indicted defendant with a new offense and three of which charged the newly added codefendants. Id." }, { "docid": "7300277", "title": "", "text": "of the indictment not only because their inclusion contemplated new proof but also because their inclusion increased the maximum sentence that could be imposed upon Flemmi in the event of a guilty verdict. A person convicted of a RICO violation ordinarily “shall be ... imprisoned not more than 20 years.” 18 U.S.C. § 1963(a). If, however, “the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment,” then the maximum available penalty stretches to life. See id. The measurement is restricted to those predicate acts charged in the body of the indictment. See United States v. Carrozza, 4 F.3d 70, 81 (1st Cir.1993). In this case, the previous versions of the indictment specified no predicate act that carried a potential sentence of life imprisonment. A murder committed in Massachusetts at the relevant time (and today, for that matter) carries such a penalty. See Mass. Gen. Laws ch. 265, §§ 1, 2 (1959). Thus, the insertion of the murders as predicate acts in the third superseding indictment effectively raised the stakes by increasing the statutory maximum applicable to the existing RICO charges against Flemmi from twenty years to life. To that extent, the indictment entailed greater jeopardy. Cf. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2365 n. 19, 147 L.Ed.2d 435 (2000) (declaring in a related, but not identical, context that any fact that increases the defendant’s exposure beyond the prescribed statutory maximum “is the functional equivalent of an element of a greater offense”). This set of circumstances puts to rest any notion that the government was abusing the grand jury process. Since the third superseding indictment contained charges analogous to a new offense, the investigation leading to it constituted a proper use of the grand jury. Any different result would unfairly hamstring the government in its pursuit of legitimate law enforcement objectives. Let us be perfectly clear. We agine with Flemmi that the appropriate inquiry is a matter of substance, not form. A prosecutor’s renewed resort to the grand jury for evidence-gathering purposes cannot be validated simply by having the grand jury" }, { "docid": "550149", "title": "", "text": "cases in deciding the kind of showing that they would require either from the party challenging the grand jury or from the government. This does not mean that such an inquiry is purely a matter of factual determination concerning the intent of the prosecutors conducting the grand jury investigation, and thus subject to a “clearly erroneous” standard on review. Although a district court’s finding must, of course, be accorded considerable respect and deference, [t]he question of a grand jury’s dominant purpose is not the typical question of historical fact nor even the typical inquiry as to the state of mind of a witness or a party. It is the application of a legal standard designed to ensure that the grand jury, a body operating peculiarly under court supervision [cites omitted], is not misused by the prosecutor for trial preparation. Simels, 767 F.2d 26, 29. The kinds of showings courts have required and the remedies they have considered vary greatly. In In re Pantojas, 628 F.2d 701 (1st Cir.1980), cited by the district court in this case, 626 F.Supp. at 1060 n. 6, a target of a grand jury investigation claimed that the grand jury was being used to collect evidence for use at trial. We rejected the claim and refused to require any special preliminary showing by the government. In Pantojas, however, the allegation was quite unsubstantiated, particularly since the individual making the allegation had not yet even been indicted. See id. at 704. On the other side of the spectrum, a Michigan district court imposed a heavy burden on the prosecution to prove that its primary purpose in a grand jury investigation was not preparation for trial. See United States v. Kovaleski, 406 F.Supp. 267 (E.D.Mich.1976). Such a showing would have had to have been something more than even a full review of the grand jury transcript. The prosecution failed to make such a showing and the court prohibited a grand jury witness from testifying at the upcoming trial. See id. at 270-71. Cf. United States v. Finazzo, 407 F.Supp. at 1132 (court ordered government to furnish detailed in" }, { "docid": "12703866", "title": "", "text": "to testify in an effort to strengthen an existing charge. Sept. 27, 1996 Transcript (“Tr.”) at 50. It is also impermissible to use the grand jury to “freeze” the testimony of a witness, such as a reluctant witness the government fears may change his testimony in the future. United States v. Fisher, 455 F.2d 1101, 1104 (2d Cir.1972); Gibbons, 607 F.2d at 1329; United States v. Jackson, 863 F.Supp. 1449, 1454 (D.Kan. 1994) (citing cases). However, “[t]he courts have made clear that the grand jury is entitled to continue to investigate the indicted defendant, if that investigation is for a purpose other than to discover evidence relating to charges in the pending indictment.” Sara Sun Beale & William C. Bryson, 2 Grand Jury Law and Practice § 10:15 at 52-53 (1986). It is, therefore, permissible for the government to present additional testimony to a grand jury primarily or exclusively to attempt to develop a superceding or separate indictment which will charge an indicted defendant with additional crimes, or charge at least one other person with an offense already alleged in the existing indictment. Gibbons, 607 F.2d at 1328; United States v. LaPorta, 46 F.3d 152, 161 (2d Cir.1994); United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994). “The prosecutor at a trial [of a pending indictment] ... may use evidence incidentally gained from a grand jury primarily investigating other crimes.” Diamante, 814 F.2d at 70 (emphasis added). See also Doe, 455 F.2d at 1273; Gibbons, 607 F.2d at 1328; Beasley, 550 F.2d at 266. It is, however, essential that (1) the government be genuinely investigating another crime, rather than the crime charged in the pending indictment, and (2) the evidence at issue be obtained ineidently in that investigation. The Court of Appeals for the First Circuit has recognized the challenge posed in enforcing the rule that the government may not use the grand jury primarily or exclusively to strengthen a pending ease, but may use at trial evidence incidently gained from a grand jury investigating another crime. Diamante, 814 F.2d at 70-71. See also Siméis, 767 F.2d at 30." }, { "docid": "7300269", "title": "", "text": "third superseding indictments were precisely the same. Id. at 57-60. This meant, the court reasoned, that the embellishments to the indictment were no more than additional evidence of the felonies with which Flemmi already had been charged. Id. at 60. Deploying the grand jury as a mechanism for collecting such information, the court ruled, constituted trial preparation (and, accordingly, sufficed to ground a finding of abuse). Id. at 62 (suggesting that the inclusion of additional predicate acts did no more than “imper-missibly strengthen[ ] already-existing charges”). Deeming suppression a condign remedy, the court granted Flemmi’s motion to exclude the evidence gleaned from Shields and Doe No. 2. II. STANDARD OF REVIEW Claims of grand jury abuse raise a unique set of concerns. The relevant inquiry, strictly speaking, is neither a pure question of fact nor a pure question of law. In re Grand Jury Proceedings (Fernandez Diamante), 814 F.2d 61, 71 (1st Cir.1987). To the contrary, the inquiry most often comprises a hybrid in that it typically involves an “application of a legal standard designed to ensure that the grand jury, a body operating peculiarly under court supervision, is not misused by the prosecutor.... ” Id. (quoting In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir.1985)). Given this reality, appellate tribunals have crafted an intermediate standard-of review for evaluating district court orders accepting or rejecting claims of grand jury abuse. Under that standard, we accord respect to the lower court’s findings, but scrutinize them somewhat less deferentially than we would if either the traditional “abuse of discretion” or “clearly erroneous” rubric applied. See United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994); Fernandez Diamante, 814 F.2d at 71. This intermediate level of appellate scrutiny is akin to what we have in other contexts termed “independent review.” E.g., United States v. Tortora, 922 F.2d 880, 882-83 (1st Cir.1990) (describing independent review as “an intermediate level of scrutiny, more rigorous than the abuse-of-discretion or dear-error standards, but stopping short of plenary or de novo review,” and deeming such review appropriate for appellate" }, { "docid": "12703868", "title": "", "text": "On one hand, prosecutors are generally permitted to utilize grand juries without supervision or interference by the courts, and grand jury proceedings are granted a presumption of regularity. Diamante, 814 F.2d at 70-71. On the other hand, the potential for abuse after a defendant is indicted is substantial because: “The government has at its disposal one of the most effective discovery mechanisms yet devised — the grand jury. This body may call witnesses under compulsory process and examine them in secret under oath, unhampered by the rules of evidence or an adversary counsel’s cross-examination, or in the case of a ‘prospective defendant’ by Fifth Amendment immunity.” Doe, 455 F.2d at 1275 (quoting 8 Moore’s Federal Practice ¶ 16.08[1], at 16-100 (2d ed.1970)). See also Diamante, 814 F.2d at 71. In the instant case, the court assumes, without finding, that the burden of proving grand jury abuse is on Flemmi. Compare Diamante, 814 F.2d at 71 (courts lock at circumstances of particular cases in deciding showing required from party challenging grand jury evidence or from government) and United States v. Kovaleski, 406 F.Supp. 267, 270 (E.D.Mich.1976) (placing burden of proof on government) with Leung, 40 F.3d at 581 (burden of proof on defendant); Thompson, 944 F.2d at 1337 (burden on defendant); Gibbons, 607 F.2d at 1328 (same); United States v. Woods, 544 F.2d 242, 250 (6th Cir.1976) (same). The court also has analyzed individually the government’s purpose in calling each witness whose testimony is now at issue. See Sasso, 59 F.3d at 351; Thompson, 944 F.2d at 1337-39; Simeis, 767 F.2d at 28-29; Matter of Grand Jury Subpoenas Issued May 3, 1991 for Nash, 858 F.Supp. 132, 135 (D.Ariz.1994). In deciding the purpose for which each relevant witness was called, the court has considered the credible direct and circumstantial evidence. See Leung, 40 F.3d at 581 (analyzing, among other things, timing of government actions); Siméis, 767 F.2d at 29 (“timing of the subpoena casts significant light on its purposes”). Based on the facts and analyses set forth below, the court finds that Flemmi has proven that after the return of the" }, { "docid": "5181366", "title": "", "text": "holiday seasons,” but given with a corrupt intent, would be unlawful. To the extent that appellants press their quid pro quo argument, the district court’s instructions adequately addressed that issue. This Court has rejected the argument that the government must “show a direct quid pro quo relationship between [the defendants] and an agent of the agency receiving federal funds.” Castro, 89 F.3d at 1454; Parodies, 98 F.3d at 1289; accord United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir.1998) (a “payment need not be correlated with a specific official act ... the intended exchange in bribery can be ‘this for these’ or ‘these for these,’ not just ‘this for that’ ”). Appellants’ quid pro quo instruction was, therefore, an incorrect statement of the law. The district court correctly explained to the jury that the government was required to prove that appellants acted corruptly in giving things of value to a county official with the intent “to influence or reward” that official “in connection with any business transaction, or series of transactions.” Given these and other instructions charged to the jury, the court did not commit plain error by refusing appellants’ quid pro quo instruction. Paradies, 98 F.3d at 1289. D. Grand Jury Issue Appellants claim that after they were charged in the June 2005 Superceding Indictment, the government abused the grand jury process by subsequently using the grand jury for the primary purpose of preparing for trial on those charges. A defendant claiming grand jury abuse “has the burden of showing that the Government’s use of the grand jury was improperly motivated.” E.g., United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994). While the grand jury cannot be used “solely or even primarily” to gather evidence against an indicted defendant, it can be used to investigate whether a defendant committed crimes not covered in the indictment. E.g., United States v. Brothers Const. Co. of Ohio, 219 F.3d 300, 314 (4th Cir.2000); United States v. Aired, 144 F.3d 1405, 1413 (11th Cir.1998). “[T]he law presumes, absent a strong showing to the contrary, that a grand jury acts within the" }, { "docid": "7300273", "title": "", "text": "on the facts and circumstances of the particular case. To assist in the inquiry, courts have devised certain proxies. Thus, if a grand jury’s continuing indagation results in the indictment of parties not previously charged, the presumption of regularity generally persists. United States v. Gibbons, 607 F.2d 1320, 1328-29 (10th Cir.1979). So too when the grand jury’s investigation leads to the filing of additional charges against previously indicted defendants. In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1041 (3d Cir.1980). These are purposes befitting the accepted institutional objectives of the grand jury, and their presence bears convincing witness to the propriety of the prosecutor’s stewardship. See United States v. Sasso, 59 F.3d 341, 351-52 (2d Cir.1995); In re Maury Santiago, 533 F.2d 727, 730 (1st Cir.1976); United States v. Dardi, 330 F.2d 316, 336 (2d Cir.1964). Cognizant of this line of cases, the court below concentrated on whether the third superseding indictment—which admittedly haled no new parties into court—altered the nature of the charges previously lodged against Flemmi. The court concluded that the indictment charged no new crime. Flemmi, 108 F.Supp.2d at 42. Laying that potential proxy to one side, the court then found that the raison d’etre for the ongoing grand jury investigation was trial preparation, specifically, what the court believed was the government’s desire to bolster its existing case by memorializing the testimony of Shields and Doe No. 2. Id. The district court’s finding of improper purpose flowed irom, and depended upon, its finding that the third superseding indictment did not charge a new offense. See id. at 62. But the court based the underlying finding on a double jeopardy analysis. See id. at 57-60. It asked, in effect, whether Flemmi would be protected from prosecution under the charges laid in the third superseding indictment had he previously been tried under the second. See id. at 61-62. Answering that query affirmatively, the court concluded that the two indictments necessarily charged the same offenses. See id. This approach is innovative, but unsound. The Double Jeopardy Clause “embodies a triumvirate of safeguards: It protects against a second prosecution for" }, { "docid": "22309873", "title": "", "text": "subpoenas that were issued after Leung had been indicted. Leung argues that the Government procured the subpoenas primarily for the impermissible purpose of preparing for trial, and that the bank records therefore should not have been admitted into evidence. She points out that the bank records related to accounts listed under the pending indictment’s third count, concerning forfeitures. In a hearing before the District Court, the prosecutor conceded the sequence of events alleged by Leung but represented that the grand jury subpoenas were issued as part of a continuing investigation into potential money laundering charges against Leung pursuant to 18 U.S.C. § 1956. The District Judge, noting that the subpoenas themselves indicated that they were for the purpose of investigating alleged violations of the money laundering statute, accepted. the Government’s representation. It is, of course, improper for the Government to use the grand jury for the sole or dominant purpose of preparing for trial under a pending indictment. United States v. Vanwort, 887 F.2d 375, 387 (2d Cir.1989), cert. denied, 495 U.S. 906, 910, 110 S.Ct. 1927, 1936, 109 L.Ed.2d 290, 299 (1990); In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir.1985). But where the grand jury investigation is not primarily motivated by this improper purpose, evidence obtained pursuant to the investigation may be offered at the trial on the initial charges. 8 James W. Moore et al., Moore’s Federal Practice ¶ 6.04[5] at 6-106 (1994). Because a presumption of regularity attaches to grand jury proceedings, Hamling v. United States, 418 U.S. 87, 139 n. 23, 94 S.Ct. 2887, 2918 n. 23, 41 L.Ed.2d 590 (1974); United States v. Torres, 901 F.2d 205, 232-33 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990), a defendant seeking to exclude evidence obtained by a post-indictment grand jury subpoena has the burden of showing that the Government’s use of the grand jury was improperly motivated, see United States v. Thompson, 944 F.2d 1331, 1337 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992); United" }, { "docid": "6988865", "title": "", "text": "to both the original Indictment and the Superseding Indictment.” Appellant does not deny that he accepted discovery from the government, and we see no reason to distinguish between the indictment and the superseding indictment for purposes of the reciprocal discovery requirement. 2. Abuse of Grand Jury Process “The law is well settled in this circuit that while the Government may not use the grand jury in place of discovery for the purpose of preparing a pending indictment for trial, it may continue with an investigation.” United States v. Ruppel, 666 F.2d 261, 268-69 (5th Cir.1982), cert. denied, 458 U.S. 1107, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982). The grand jury process is entitled to a presumption of regularity which is not easily overcome. See, e.g., Beverly v. United States, 468 F.2d 732, 743 (5th Cir.1972). In the instant case, it is plain that there was no abuse of the grand jury process. As set out by the government, “it appeared that appellant Arthur intended to use documents from the Seattle Travelers Aid Society that appeared to have been fraudulently altered to support his alibi defense to the Earhart Expressway shootings ... the grand jury was investigating whether the documents were false or had been altered, and, if so was endeavoring to determine the identities of the culpable persons.” Clearly, in a conspiracy of the size and scope of the one indicted herein, the grand jury could be expected to follow up on evidence which tended to implicate additional co-conspirators or indicate that additional crimes had occurred. Arthur has made no showing that the grand jury’s inquiry was not part of a legitimate investigation into a possible additional crime, nor has Arthur shown that he was prejudiced by the investigation. Arthur was able to present his alibi defense at trial. In addition, the primary focus of the government’s impeachment of his alibi — the alteration of the documents — was evident on the face of the documents, and therefore readily discoverable without grand jury process. The grand jury investigation only sought information on a putative crime which came to light during" }, { "docid": "23048112", "title": "", "text": "retained the original count and added a second count alleging that on November 6, 2000, defendants knowingly possessed with intent to distribute and dispense ten grams or more of a mixture or substance containing a detectable amount of LSD. Finally, on June 20, 2001, the grand jury that issued the superseding indictment issued a second superseding indictment expanding the time period of the alleged conspiracy (to August 1999 through November 6, 2000) and adding an alias for each defendant. Defendants moved to dismiss the second superseding indictment on the basis of alleged grand jury abuse. The district court denied that motion. In their respective appeals, Apperson and Pickard contend the district court erred in allowing the filing of the second superseding indictment because that indictment merely “expanded the time of the alleged conspiracy,” rather than “add[ing] any new charges.... ” Pickard Br. at 16. In their view, the primary purpose of the second superseding indictment was simply to strengthen the government’s case against defendants. In sum, defendants effectively argue that the second superseding indictment should have been dismissed as a result of grand jury abuse on the part of the government. “[T]he grand jury process is abused when the prosecutor uses it ‘for the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery, although this may be an incidental benefit.’ ” United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.1990) (quoting United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979)). We review the district court’s factual determinations on this issue “under the deferential clearly erroneous standard.” United States v. Brown, 943 F.2d 1246, 1257 (10th Cir.1991). Further, the trial court’s ruling on the motion to dismiss the superseding indictment “will only be reversed if we find errors in the indictment which prejudiced the defendant.” Id. “Such prejudice occurs ‘if there is some significant infringement on the grand jury’s ability to exercise independent judgment.'” Id. (quoting United States v. Pino, 708 F.2d 523, 530 (10th Cir.1983)). In rejecting defendants’ motion to dismiss the second superseding indictment, the district court in this" }, { "docid": "12703900", "title": "", "text": "of discovering otherwise unavailable evidence that Flemmi and Sa-lemme participated in the murders of the Bennett brothers and Grasso in order to demonstrate that the Enterprise, as alleged from the outset of the RICO charges, engaged in murder. Second, it wanted to increase the prospect of having that evidence admitted at trial by adding the murders as Racketeering Acts. However, because the RICO and RICO conspiracy charges in the Third Superceding Indictment are, as explained below, the same crimes that were alleged previously, the use of the grand jury for these purposes was improper. In this case, the government believed that it was permissible to continue to use the federal grand jury to investigate any “criminal activity” by Flemmi if it had not been charged previously as a substantive count or specific racketeering act. May 23, 2000 Tr. at 71-74. This, however, was incorrect. As explained in § II, supra, after a defendant has been indicted on particular charges, a federal grand jury may investigate him only for “other crimes.” Diamante, 814 F.2d at 70 (emphasis added). Specifically, as the government now concedes, a federal grand jury may properly investigate only potential additional, prosecutable, federal offenses committed by an individual who has been indicted or investigate related crimes committed by others. Sept. 17, 1996 Tr. at 59-60; May 23, 2000 Tr. at 23. See also Gibbons, 607 F.2d at 1328; LaPorta, 46 F.3d at 161; Leung, 40 F.3d at 581. As described earlier, the murders of the Bennett brothers and Grasso in 1967 did not themselves constitute federal offenses. Their relevance to the federal grand jury was as potential proof of the Enterprise alleged in the First Superceding Indictment and its successors, and as potential parts of a pattern of racketeering activity that must be proven to obtain a conviction on a RICO charge. The federal offense to be investigated, however, was a violation of the federal RICO statute, 18 U.S.C. § 1961 et seq. As the government acknowledges, it could not have properly conducted a federal grand jury investigation of the murders of the Bennett brothers and Grasso except" }, { "docid": "7300268", "title": "", "text": "thereupon took the matter under advisement until July 5, 2000. At that time, the court concluded that the only tangible work product of the challenged grand jury sessions — the third superseding indictment— did not alter the fundamental character of the crimes charged because the added materials did not accuse Flemmi of having committed any new federal crime, but merely attributed more predicate acts to him. Flemmi, 108 F.Supp.2d at 41-43. This rendered unavailable a safe harbor that the government had sought to reach and set the stage for further inquiry. The court conducted that further inquiry and found that the government had used the grand jury process in the fall of 1995 and thereafter principally for trial preparation, that is, as a means to “compel and freeze the otherwise unavailable testimony” of Shields and Doe No. 2. Id. at 42. In reaching the conclusion that the safe harbor for “new charges” was unavailable, the court relied on a double jeopardy analysis that indicated, to its satisfaction, that the offenses charged in the second and third superseding indictments were precisely the same. Id. at 57-60. This meant, the court reasoned, that the embellishments to the indictment were no more than additional evidence of the felonies with which Flemmi already had been charged. Id. at 60. Deploying the grand jury as a mechanism for collecting such information, the court ruled, constituted trial preparation (and, accordingly, sufficed to ground a finding of abuse). Id. at 62 (suggesting that the inclusion of additional predicate acts did no more than “imper-missibly strengthen[ ] already-existing charges”). Deeming suppression a condign remedy, the court granted Flemmi’s motion to exclude the evidence gleaned from Shields and Doe No. 2. II. STANDARD OF REVIEW Claims of grand jury abuse raise a unique set of concerns. The relevant inquiry, strictly speaking, is neither a pure question of fact nor a pure question of law. In re Grand Jury Proceedings (Fernandez Diamante), 814 F.2d 61, 71 (1st Cir.1987). To the contrary, the inquiry most often comprises a hybrid in that it typically involves an “application of a legal standard designed" }, { "docid": "7300272", "title": "", "text": "581. Notwithstanding the presumption of regularity, prosecutors do not have carte blanche in grand jury matters. However, a party asserting a claim of grand jury abuse must shoulder a heavy burden. See id.; United States v. Badger, 983 F.2d 1443, 1458 (7th Cir.1993); United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.1990). One way to carry this burden is to show that the government used the grand jury principally to prepare pending charges for trial. See Fernandez Diamante, 814 F.2d at 70 (explaining “that a grand jury may not conduct an investigation for the primary purpose of helping the prosecution prepare indictments for trial”). This proposition is more simply stated than applied. While it is easy to say that the court’s inquiry must focus on the primary purpose underlying the grand jury’s involvement, there is a fíne line between an improper “trial preparation” use of a grand jury and a proper “continuing investigation” use. This fine line is difficult to plot and, in most instances, determining whether a prosecutor has overstepped it will depend on the facts and circumstances of the particular case. To assist in the inquiry, courts have devised certain proxies. Thus, if a grand jury’s continuing indagation results in the indictment of parties not previously charged, the presumption of regularity generally persists. United States v. Gibbons, 607 F.2d 1320, 1328-29 (10th Cir.1979). So too when the grand jury’s investigation leads to the filing of additional charges against previously indicted defendants. In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1041 (3d Cir.1980). These are purposes befitting the accepted institutional objectives of the grand jury, and their presence bears convincing witness to the propriety of the prosecutor’s stewardship. See United States v. Sasso, 59 F.3d 341, 351-52 (2d Cir.1995); In re Maury Santiago, 533 F.2d 727, 730 (1st Cir.1976); United States v. Dardi, 330 F.2d 316, 336 (2d Cir.1964). Cognizant of this line of cases, the court below concentrated on whether the third superseding indictment—which admittedly haled no new parties into court—altered the nature of the charges previously lodged against Flemmi. The court concluded that the indictment" }, { "docid": "22309874", "title": "", "text": "S.Ct. 1927, 1936, 109 L.Ed.2d 290, 299 (1990); In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir.1985). But where the grand jury investigation is not primarily motivated by this improper purpose, evidence obtained pursuant to the investigation may be offered at the trial on the initial charges. 8 James W. Moore et al., Moore’s Federal Practice ¶ 6.04[5] at 6-106 (1994). Because a presumption of regularity attaches to grand jury proceedings, Hamling v. United States, 418 U.S. 87, 139 n. 23, 94 S.Ct. 2887, 2918 n. 23, 41 L.Ed.2d 590 (1974); United States v. Torres, 901 F.2d 205, 232-33 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990), a defendant seeking to exclude evidence obtained by a post-indictment grand jury subpoena has the burden of showing that the Government’s use of the grand jury was improperly motivated, see United States v. Thompson, 944 F.2d 1331, 1337 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992); United States v. Moss, 756 F.2d 329, 332 (4th Cir.1985); 8 Moore, supra, ¶ 6.04[5], at 6-107. In determining the purpose of the grand jury action, this Court must give considerable deference to the relevant findings of the District Court; our review of these findings may, however, be more rigorous than would otherwise be appropriate under the “clearly erroneous” standard. See Simels, 767 F.2d at 29. Leung failed to establish that the disputed grand jury subpoenas were issued for the sole or dominant purpose of aiding the Government in preparing for trial under the pending indictment. Contrary to Leung’s contentions, the timing of the subpoenas does not undermine the presumption of regularity that attaches to the grand jury proceedings. Leung was arrested on June 30, and the existence of her bank accounts was first revealed during the search of her safe-deposit boxes on July 6. The indictment on the narcotics and forfeiture charges was returned eight days after that search, on the last day before a preliminary hearing would otherwise have been required under Fed. R.Crim.P." }, { "docid": "5181367", "title": "", "text": "other instructions charged to the jury, the court did not commit plain error by refusing appellants’ quid pro quo instruction. Paradies, 98 F.3d at 1289. D. Grand Jury Issue Appellants claim that after they were charged in the June 2005 Superceding Indictment, the government abused the grand jury process by subsequently using the grand jury for the primary purpose of preparing for trial on those charges. A defendant claiming grand jury abuse “has the burden of showing that the Government’s use of the grand jury was improperly motivated.” E.g., United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994). While the grand jury cannot be used “solely or even primarily” to gather evidence against an indicted defendant, it can be used to investigate whether a defendant committed crimes not covered in the indictment. E.g., United States v. Brothers Const. Co. of Ohio, 219 F.3d 300, 314 (4th Cir.2000); United States v. Aired, 144 F.3d 1405, 1413 (11th Cir.1998). “[T]he law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.” United States v. R. Enterprises, Inc., 498 U.S. 292, 300, 111 S.Ct. 722, 728, 112 L.Ed.2d 795 (1991); accord Aired, 144 F.3d at 1413. The grand jury did not charge appellants with any crime in its February 3, 2005 Indictment. Appellants were first charged with bribing Chandler and Ellis and obstructing justice in the June 22, 2005 Superceding Indictment. While the Second Superceding Indictment expanded the charges against appellants, the new charges all concerned appellants’ bribery of McNair. Magistrate Judge Putnam concluded that there was no grand jury abuse after holding a pre-trial hearing that included reviewing the transcripts of the USI employees who testified in the grand jury after appellants were first indicted. Although seven USI employees testified before the grand jury in August 2005, Judge Putnam found that only two employees’ testimony addressed charges in the Superceding Indictment. Judge Putnam further found that “[m]ost of the questioning” of those two employees “dealt with payments made or dealings with McNair, not Chandler or Ellis.” Thus, Judge Putnam correctly concluded" }, { "docid": "7300271", "title": "", "text": "oversight of pretrial detention orders). III. ANALYSIS Although the grand jury operates under judicial supervision, it is essentially an independent institution. In recognition of this status, courts afford grand jury proceedings a presumption of regularity. United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943). This presumption attaches even after the grand jury has returned an initial indictment. After all, superseding indictments setting forth new charges or adding new defendants are familiar fare. E.g., United States v. Melendez, 228 F.3d 19, 21 (1st Cir.2000) (superseding indictment added two new defendants); United States v. Pena-Lora, 225 F.3d 17, 23 (1st Cir.2000) (superseding indictment set forth new charges); United States v. Bender, 221 F.3d 265, 267 (1st Cir.2000) (superseding indictment added two counts); United States v. Li, 206 F.3d 56, 59 (1st Cir.2000) (en banc) (superseding indictment added four new defendants). It follows logically that, as a general rule, “evidence obtained pursuant to [an ongoing grand jury] investigation may be offered at the trial on the initial charges.” Leung, 40 F.3d at 581. Notwithstanding the presumption of regularity, prosecutors do not have carte blanche in grand jury matters. However, a party asserting a claim of grand jury abuse must shoulder a heavy burden. See id.; United States v. Badger, 983 F.2d 1443, 1458 (7th Cir.1993); United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.1990). One way to carry this burden is to show that the government used the grand jury principally to prepare pending charges for trial. See Fernandez Diamante, 814 F.2d at 70 (explaining “that a grand jury may not conduct an investigation for the primary purpose of helping the prosecution prepare indictments for trial”). This proposition is more simply stated than applied. While it is easy to say that the court’s inquiry must focus on the primary purpose underlying the grand jury’s involvement, there is a fíne line between an improper “trial preparation” use of a grand jury and a proper “continuing investigation” use. This fine line is difficult to plot and, in most instances, determining whether a prosecutor has overstepped it will depend" }, { "docid": "16197981", "title": "", "text": "more appropriate for resolution in the pending criminal action. (See Opp. at 29.) Subject E’s argument, in view of the grand jury’s continuing investigation and her non-compliance under the 2010 Subpoena, is unavailing. As a general matter, a grand jury’s wide-ranging investigative power “does not end when it indicts a defendant. Instead, a post-indictment action is permitted to identify or,investigate other individuals involved in criminal schemes or to prepare superseding indictments against persons already, charged.” United States v. Meregildo, 876 F.Supp.2d 445, 448-49 (S.D.N.Y. 2012), But “it-is improper to utilize a grand jury for the sole or dominating purpose of preparing an already pending indictment for trial.” United States v. Bin Laden, 116 F.Supp.2d 489, 491-92 (S.D.N.Y. 2000). Subject E bears the burden of rebutting the “presumption of regularity [that] attaches to grand jury proceedings” and must demonstrate that “the Government’s use of the grand jury was improperly motivated.” Bin Laden, 116 F.Supp.2d at 492. Put another way, “absent some indicative sequence of events demonstrating an irregularity, a court has to take at face value the Government’s word that the dominant purpose of the grand jury proceedings is proper.” United States v. Raphael, 786 F.Supp. 355, 358 (S.D.N.Y. 1992). Here, Subject E has failed to offer any sequence of events demonstrating irregularity to rebut the presumption that continued use of a grand jury subpoena, even after an indictment, is proper. Although more than six years elapsed since service of the 2010 Subpoena, the Government’s conduct has not been irregular. A significant portion of that interval was devoted to litigating the question of whether Subject E was exempt by reason of the act of production privilege from responding to the 2010 Subpoena. Following issuance of the Compulsion Order and the Contempt Order, Subject E located and produced two responsive documents. And the Government had to wait for production of the Liechtenstein Documents to piece together its current view that she had not fully complied with her obligations. (Tr. at 10:19-21 (“What I’d say is just that there is some delay.- I believe it was several years before Li[e]chtenstein turned over documents" }, { "docid": "12703867", "title": "", "text": "an offense already alleged in the existing indictment. Gibbons, 607 F.2d at 1328; United States v. LaPorta, 46 F.3d 152, 161 (2d Cir.1994); United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994). “The prosecutor at a trial [of a pending indictment] ... may use evidence incidentally gained from a grand jury primarily investigating other crimes.” Diamante, 814 F.2d at 70 (emphasis added). See also Doe, 455 F.2d at 1273; Gibbons, 607 F.2d at 1328; Beasley, 550 F.2d at 266. It is, however, essential that (1) the government be genuinely investigating another crime, rather than the crime charged in the pending indictment, and (2) the evidence at issue be obtained ineidently in that investigation. The Court of Appeals for the First Circuit has recognized the challenge posed in enforcing the rule that the government may not use the grand jury primarily or exclusively to strengthen a pending ease, but may use at trial evidence incidently gained from a grand jury investigating another crime. Diamante, 814 F.2d at 70-71. See also Siméis, 767 F.2d at 30. On one hand, prosecutors are generally permitted to utilize grand juries without supervision or interference by the courts, and grand jury proceedings are granted a presumption of regularity. Diamante, 814 F.2d at 70-71. On the other hand, the potential for abuse after a defendant is indicted is substantial because: “The government has at its disposal one of the most effective discovery mechanisms yet devised — the grand jury. This body may call witnesses under compulsory process and examine them in secret under oath, unhampered by the rules of evidence or an adversary counsel’s cross-examination, or in the case of a ‘prospective defendant’ by Fifth Amendment immunity.” Doe, 455 F.2d at 1275 (quoting 8 Moore’s Federal Practice ¶ 16.08[1], at 16-100 (2d ed.1970)). See also Diamante, 814 F.2d at 71. In the instant case, the court assumes, without finding, that the burden of proving grand jury abuse is on Flemmi. Compare Diamante, 814 F.2d at 71 (courts lock at circumstances of particular cases in deciding showing required from party challenging grand jury evidence or from government)" } ]

[ { "docid": "5711992", "title": "", "text": "conviction, Bronsztejn was placed on probation. In 1973 the Immigration and Naturalization Service (“INS”) issued an order requiring Bronsztejn to show cause why he should not be deported pursuant to § 241(a)(ll) of the INA. Both the Immigration Judge and the Board of Immigration Appeals found the petitioner deportable. The essence of petitioner’s argument in this proceeding is that a conviction for attempted possession is not a conviction “relating to” the illicit possession of marijuana. Petitioner first contends that the legislation was aimed at drug traffickers rather than users. More importantly, petitioner argues that the construction adopted by the immigration authorities would expand the statute’s coverage, contrary to established rules of construction in deportation cases. In support of his contentions, petitioner emphasizes that attempted possession is a crime different from and less serious than possession and that it is not explicitly mentioned in the text of the statute. It is well settled that Congress has plenary power over the admission of aliens and their right to remain in the United States. Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1953). This Court has recently reaffirmed that “the validity of distinctions drawn by Congress with respect to deportability is not a proper subject for judicial concern.” Oliver v. U. S. Dept. of Justice, I. & N. Serv., supra, 517 F.2d at 428. Thus, if petitioner Bronsztejn is deportable under the language of the statute, this Court has no authority to prevent deportation because of changing social mores regarding marijuana. Be cause deportation is a drastic penalty, however, the statute must be strictly construed. See, e. g., Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948). Although originally directed primarily at narcotics “traffickers,” the legislative history of the INA leaves no doubt that Congress intended a stringent deportation policy regarding drug offenders. The 1952 version of the Act required deportation of addicts, even though they had committed no crime and were later rehabilitated. The 1956 amendments added “possession” as a deportable offense. Finally, in 1960, Congress specifically made the Act" } ]

[ { "docid": "22340426", "title": "", "text": "be “returning [to the United States] after a temporary absence”, and Section 212(c), which requires that the alien have “temporarily proceeded abroad voluntarily and not under an order of deportation.” The Board viewed this as meaning that Congress intended by this clause to require an actual departure and return to this country. 13 I. & N. Dec. at 700. In a brief per curiam opinion, the Ninth Circuit affirmed this construction of the statute. Arias-Uribe v. INS, 466 F.2d 1198 (1972). See also Dunn v. INS, 499 F.2d 856, 858 (9th Cir. 1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975). Although there is nothing in the legislative history of the 1952 Act which indicates that Congress intended to change prior case law in this respect, we agree with the Ninth Circuit that the Board’s interpretation is consistent with the language of Section 212(c). See S.Rep.No. 1137, 82nd Cong., 2d Sess. (1952); H.R.No.1365, 82nd Cong., 2d Sess. (1952); U.S.Code Cong. & Admin.News 1952, p. 1653. It is the petitioner’s contention that if this statutory construction is applied to his case, then he is deprived of the equal protection of the laws as guaranteed by the fifth amendment. He argues that the statute as so applied creates two classes of aliens identical in every respect except for the fact that members of one class have departed and returned to this country at some point after they became deportable. Thus the distinction is not rationally related to any legitimate purpose of the statute. The authority of Congress and the executive branch to regulate the admission and retention of aliens is virtually unrestricted. Lem Moon v. United States, 158 U.S. 538, 15 S.Ct. 967, 39 L.Ed. 1082 (1895); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Enforcement of the immigration laws is often related to considerations both of foreign policy and the domestic economy. Nevertheless “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . ” Galvan v. Press, 347 U.S." }, { "docid": "21842697", "title": "", "text": "requirement is valid under Congress’ broad power to control the admission of aliens. See generally Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). “[I]n the exercise of its broad power over immigration and naturalization, ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’ ” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976)). The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Id. (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953) (other citations omitted)). See also Bertrand v. Sava, 684 F.2d 204, 209-212 (2d Cir. 1982). Imposing the burden on an alien, who has been previously deported, to affirmatively seek permission in the United States Consulate is within Congress’ broad power to control immigration and naturalization. The INS regulation, 8 C.F.R. § 212.4 is consistent with the Congressional mandate. McKay never contacted the United States Consulate to seek application for admission to the United States to appear at his arraignment. McKay’s contention is that the United States must seek to extradite him pursuant to the Treaty of Extradition between the United States of America and Canada, 27 U.S.T. 983, T.I.A.S. No. 8237. McKay’s argument is inconsistent with subsection 17 and 8 C.F.R. § 212.4. The burden is on McKay to seek permission to apply for admission to the United States, even for the limited purpose of appearing at his arraignment. The government argues that McKay’s failure to undertake such action requires the court to consider him a fugitive from justice. McKay further contends that he is not a fugitive from justice because he was “involuntarily deported” by the INS. This circuit recently stated that the intent to flee from prosecution or arrest may be inferred from a person’s failure to surrender to authorities once he learns that charges against him" }, { "docid": "7594910", "title": "", "text": "promises broken is therefore without factual foundation. Compare Geisser v. United States, 513 F.2d 862 (5th Cir. 1975). Petitioners’ remaining arguments must be similarly rejected. The power of Congress to regulate the admission and expulsion of aliens is plenary and, absent patent abuse, not subject to judicial scrutiny. See Kliendienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Bronsztejn v. Immigration and Naturalization Service, 526 F.2d 1290 (2d Cir. 1975). Congress’ decision to mandate the deportation of narcotics offenders is not without rational justification; accordingly, while we may be concerned at the hardship it imposes on the minor offender, we must nevertheless follow its strictures. See Oliver v. United States Dept. of Justice, I. & N. Serv., 517 F.2d 426 (2d Cir. 1975). The same also applies to the immigration judge who cannot exercise discretion and withhold deportation in contravention of the statute. The language of § 1251(a)(ll) is mandatory; once the Attorney General orders a proceeding commenced, the immigration judge must order deportation if the evidence supports a finding under the section. Petitioners’ reliance on Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir. 1976) is misplaced. In Francis,- which dealt with the discretionary relief available under 8 U.S.C. § 1105(a) to an alien convicted of a narcotics offense, the Court held that the statute could not constitutionally distinguish between permanent residents who briefly departed (and thereafter returned) to the United States during the space of at least seven years’ residency here, and those who were also here for at least seven years but who never left the country during that period; in other words, if discretionary relief were available to the former group, it would have to be available to the latter as well on the ground that both groups had completed seven years of residency in America. Since, in the case at bar, neither of the petitioners has been a permanent resident of the United States for a period of seven years, the statute discussed in Francis is clearly inapplicable. Nor does that case support petitioners’ argument that the unavailability of" }, { "docid": "7594911", "title": "", "text": "the section. Petitioners’ reliance on Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir. 1976) is misplaced. In Francis,- which dealt with the discretionary relief available under 8 U.S.C. § 1105(a) to an alien convicted of a narcotics offense, the Court held that the statute could not constitutionally distinguish between permanent residents who briefly departed (and thereafter returned) to the United States during the space of at least seven years’ residency here, and those who were also here for at least seven years but who never left the country during that period; in other words, if discretionary relief were available to the former group, it would have to be available to the latter as well on the ground that both groups had completed seven years of residency in America. Since, in the case at bar, neither of the petitioners has been a permanent resident of the United States for a period of seven years, the statute discussed in Francis is clearly inapplicable. Nor does that case support petitioners’ argument that the unavailability of discretionary relief for narcotics offenders is unconstitutional. In Francis, we held it irrational to distinguish between two categories of narcotics offenders on the basis of a brief visit out of the country. Here, the distinction is between narcotics offenders and other offenders, a distinction that has a reasonable basis. Oliver v. United States Dept. of Justice, I. & N. Serv., 517 F.2d 426 (2d Cir. 1975). The petitions for review are accordingly denied. . We note that both petitioners were represented by counsel during the proceedings. . The pertinent statutory language of § 1251 reads as follows: “(a) Any alien in the United States . . shall, upon the order of the Attorney General, be deported who— (11) is, or . . . has been, a narcotic drug addict, or who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs . (emphasis added)." }, { "docid": "7594908", "title": "", "text": "PER CURIAM: Guan Chow Tok (“Tok”) and Pak Suen Stephen Lai (“Lai”) come before this Court on consolidated petitions for review of a final order of deportation entered on September 12, 1975 by the Board of Immigration Appeals. Mindful of the hardship that deportation entails, we must nevertheless deny the petitions. Tok is an alien and citizen of Mainland China who was admitted into the United States in June of 1969 as a permanent resident. On January 3, 1973 he was convicted of narcotics offenses in the federal district court for the Southern District of New York. After a period of incarceration, he was released on parole. Lai, also a permanent resident of the United States since December of 1970, is a native of Hong Kong. On January 23, 1973, Lai pleaded guilty to narcotics offenses in the federal district court for the Southern District of New York. Lai alleges that he was unaware that his plea of guilty would result in deportation proceedings being brought against him. At their respective deportation hearings, Tok and Lai conceded the factual allegations against them. However, they urged that the immigration judge exercise discretion and withhold deportation on the basis of their cooperation with federal authorities in connection with the criminal cases brought against them in the Southern District, and in consideration of the hardship that deportation would cause their families. Deportation having' been ordered, Tok and Lai turned to this Court, where they argued first, that their cooperation with the authorities had been premised on the government’s promise that deportation would be withheld; second, that 8 U.S.C. § 1251(a)(ll), which mandates the deportation of aliens who have been convicted of narcotics offenses, is an unconstitutional denial of equal protection of the laws because permanent residents are subject to it while citizens are not; and third, that the immigration judge improperly declined to exercise discretion in the disposition of their cases. With respect to petitioners’ first argument, we find no evidence in the record which would indicate that any promise was made by the government regarding the withholding of deportation. Petitioners’ allegation of" }, { "docid": "23079705", "title": "", "text": "it is found to be arbitrary, or capricious, or an abuse of discretion. We note, however, that the exercise of that discretion comes into play only after there has been a preliminary appraisal of refugee status, which involves an issue of fact. Because the abuse of discretion standard is not appropriate for reviewing factual findings regarding eligibility, see Lee v. INS, 541 F.2d 1383, 1385 (9th Cir.1976) (citing Foti, 375 U.S. at 228-29, 84 S.Ct. at 313-14), we hold that substantial evidence must support the finding regarding refugee status. See Sarkis v. Nelson, 585 F.Supp. 235, 237-38 (E.D.N.Y.1984) (relying on dictum in Chun v. Sava, 708 F.2d 869 (2d Cir.1983), to hold that “where the Board denies political asylum not as a matter of discretion, but as a result of its factual determination that petitioners have not demonstrated a well-founded fear of persecution, its determination must be supported by substantial evidence”). However, if the immigration judge finds that the applicant qualifies as a “refugee,” but nonetheless decides to deny the applicant asylum in the exercise of the judge’s discretion, we will not overturn the decision unless it was arbitrary, capricious, or an abuse of discretion. B. Applications for Withholding of Deportation under Section 243(h). Once an immigration judge finds an alien deportable in a deportation proceeding, a specific country is chosen or designated as the country of deportation. The alien can avoid deportation to the designated country, however, by applying within ten days of the deportation order for a temporary withholding of deportation pursuant to section 243(h) of the Immigration Act, 8 U.S.C. § 1253(h) (1982). Prior to the passage of the Refugee Act, the withholding of deportation was at the discretion of the Attorney General. Under the amended version of section 243(h), however, the Attorney General, and hence the immigration judge whose powers derive from the Attorney General, shall not deport or return any alien (other than an alien described in section 241(a)(19)) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality," }, { "docid": "8654576", "title": "", "text": "themselves legitimate, on the availability of a particular entitlement. See Martins v. INS, 972 F.2d 657, 662 (5th Cir.1992) (per curiam). Petitioners’ other constitutional challenges are similarly doomed to failure. The Supreme Court has repeatedly emphasized that ‘“over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909)). Whether an immigration provision is constitutional depends only on the existence of a “ ‘facially legitimate and bona fide reason’ ” for its enactment. Id. 430 U.S. at 794, 97 S.Ct. at 1479 (quoting Kleindeinst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972)). Surely Congress’ decision that aliens convicted of drug trafficking offenses should not receive relief from deportation rests on a facially legitimate and bona fide reason. These provisions therefore withstand our limited judicial review. For the foregoing reasons, the petitions for review are Denied. . For simplicity, we will treat each argument as if raised by both Garcia and Barghouti. . Petitioner Garcia adds that, compared to the bail provisions, the BIA’s interpretation of section 243(h)(2). “flies in the face of fundamental principles of Anglo-American criminal jurisprudence relating to dangerousness.\" He claims that all correctional systems in the United States, federal or state, allow offenders to become eligible for release back into the community once they are no longer dangerous (that is, once they have been rehabilitated). Beyond the fact that the proposed analogy between immigration and criminal processes is less than perfect, Garcia is evidently unaware that the Sentencing Reform Act of 1984 abolished parole in .'¡i federal system. . The United States is not a j m.ioiy to the Convention itself, but it acceded.iu 1968 to the United Nations Protocol Relatim- . ■ die Status of Refugees, which bound the pa.’.ies to comply with Articles 2 through 34 of '. onvention. Following the practice of the Suj^ -..if Court, we" }, { "docid": "7594909", "title": "", "text": "Lai conceded the factual allegations against them. However, they urged that the immigration judge exercise discretion and withhold deportation on the basis of their cooperation with federal authorities in connection with the criminal cases brought against them in the Southern District, and in consideration of the hardship that deportation would cause their families. Deportation having' been ordered, Tok and Lai turned to this Court, where they argued first, that their cooperation with the authorities had been premised on the government’s promise that deportation would be withheld; second, that 8 U.S.C. § 1251(a)(ll), which mandates the deportation of aliens who have been convicted of narcotics offenses, is an unconstitutional denial of equal protection of the laws because permanent residents are subject to it while citizens are not; and third, that the immigration judge improperly declined to exercise discretion in the disposition of their cases. With respect to petitioners’ first argument, we find no evidence in the record which would indicate that any promise was made by the government regarding the withholding of deportation. Petitioners’ allegation of promises broken is therefore without factual foundation. Compare Geisser v. United States, 513 F.2d 862 (5th Cir. 1975). Petitioners’ remaining arguments must be similarly rejected. The power of Congress to regulate the admission and expulsion of aliens is plenary and, absent patent abuse, not subject to judicial scrutiny. See Kliendienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Bronsztejn v. Immigration and Naturalization Service, 526 F.2d 1290 (2d Cir. 1975). Congress’ decision to mandate the deportation of narcotics offenders is not without rational justification; accordingly, while we may be concerned at the hardship it imposes on the minor offender, we must nevertheless follow its strictures. See Oliver v. United States Dept. of Justice, I. & N. Serv., 517 F.2d 426 (2d Cir. 1975). The same also applies to the immigration judge who cannot exercise discretion and withhold deportation in contravention of the statute. The language of § 1251(a)(ll) is mandatory; once the Attorney General orders a proceeding commenced, the immigration judge must order deportation if the evidence supports a finding under" }, { "docid": "22647330", "title": "", "text": "inadmissibility), and not to aliens who remain in the United States (i.e., aliens facing deportation). Tapia-Acuna, 640 F.2d at 225. According to Francis and Tapia-Acuna, it is wholly irrational for Congress to give any advantage to aliens outside the United States that it denies to similarly situated aliens within the United States. We are not convinced that Francis and Tapia-Acuna accorded sufficient def erence to this complex legislative scheme, and therefore reconsider this question, as we are authorized to do en banc. We note at the outset that the statute doesn’t discriminate against a discrete and insular minority or trench on any fundamental rights, and therefore we apply a standard of bare rationality. United States v. Barajas-Guillen, 632 F.2d 749, 752 (9th Cir.1980) (quoting Alvarez v. Dist. Dir. of the U.S. INS, 539 F.2d 1220, 1224 (9th Cir.1976)). Congress has particularly broad and sweeping powers when it comes to immigration, and is therefore entitled to an additional measure of deference when it legislates as to admission, exclusion, removal, naturalization or other matters pertaining to aliens. See Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Boutilier v. INS, 387 U.S. 118, 123-24, 87 S.Ct. 1563,18 L.Ed.2d 661 (1967); Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Our task, therefore, is to determine, not whether the statutory scheme makes sense to us, but whether we can conceive of a rational reason Congress may have had in adopting it. We can: Congress could have limited section 212(c) relief to aliens seeking to enter the country from abroad in order to “create[ ] an incentive for deportable aliens to leave the country.” Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 309 (5th Cir.1999) (quoting LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998)); see DeSousa v. Reno, 190 F.3d 175, 185 (3d Cir.1999). A deportable alien who wishes to obtain section 212(c) relief will know that he can’t obtain such relief so long as he remains in the United States; if he departs the United States, however, he could become eligible for such relief." }, { "docid": "23358636", "title": "", "text": "in support of his claim which would entitle him to relief.’ ” Id. (quoting GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)). III. Discussion The petitioners contend that 8 C.F.R. § 3.2(c)(3)(iii) is unconstitutional for several reasons. Their first assertion that the Attorney General lacks the authority to promulgate the regulation is clearly without merit. Congress has explicitly delegated much of its power over immigration to the Attorney General. See, e.g., 8 U.S.C. § 1103(a)(3); Immigration Act of 1990 § 545(d), Pub.L. No. 101-649, 104 Stat. 4978 (providing Attorney General shall issue regulations limiting time period for motions to reopen and reconsider), reprinted in 8 U.S.C. § 1252 note. Their remaining arguments regarding violations of their due process rights fail to state a legally cognizable cause of action because the petitioners have no constitutionally protected interest under either the Fifth Amendment or the regulation itself. Courts have long recognized Congress’s plenary power over matters of immigration. Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Recognizing that decisions regarding the admission and exclusion of aliens are most appropriately relegated to the political branches of government, courts ensure only that the Executive Branch enforces immigration laws in accordance with the procedural safeguards established by Congress. Id. Moreover, the procedural safeguards are minimal because aliens do not have a constitutional right to enter or remain in the United States. Bassett v. INS, 581 F.2d 1385, 1386-87 (10th Cir.1978) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 586-89, 72 S.Ct. 512, 96 L.Ed. 586 (1952)). When facing deportation, however, aliens are entitled to procedural due process, which provides an “‘opportunity to be heard at a meaningful time and in a meaningful manner.’ ” de la Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir.1994) (internal quotations omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir.1999)) (acknowledging that “[n]umerous courts have recognized” the Due Process Clause protects an alien’s liberty interest in the “fundamental fairness” of a deportation" }, { "docid": "4448985", "title": "", "text": "hearing arising out of a state court conviction for possession of heroin. This circuit held that “[t]he Attorney General is not given discretion by the immigration laws to waive or suspend deportation for narcotics offenders.” Id. at 1199. The literal approach of this circuit in Arias-Uribe was rejected by the Second Circuit in Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir.1976). Francis held that the petitioner was entitled to apply for discretionary relief in a deportation proceeding based on a state court conviction for possession of marijuana, a misdemeanor. The administrative practice of the INS was to apply the discretionary relief statute to aliens convicted of marijuana possession who had departed from and re-entered the United States, but not to aliens who had never made such a departure, regardless of whether the issue arose at the time of readmission. The INS treated its subsequent exercise of discretion as merely a nunc pro tunc correction of the record of reentry. The Second Circuit held that “the Board’s interpretation of Section 212(c) is unconstitutional as applied to this petitioner.” Id. at 273. The court’s rationale was that the interpretation denied due process under the Fifth Amendment, incorporating the equal protection requirement of the Fourteenth Amendment, because as applied the statute drew an arbitrary distinction: Reason and fairness would suggest that an alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time. Id. In Tapia-Acuna v. Immigration and Naturalization Service, 640 F.2d 223 (9th Cir.1981), this circuit decided to follow Francis, because the decision in Arias-Ur-ibe led to different treatment of similarly situated persons in the Ninth and other circuits. Tapia-Acuna was a deportation case arising out of a state court conviction for possession of marijuana. We agreed with Francis that “§ 1182(c), as interpreted in Arias-Uribe and its progeny, creates a distinction that lacks a rational basis.” Id. at 225 (footnote omitted). Specifically referring to subsection 11, the provision relating to narcotic" }, { "docid": "22674506", "title": "", "text": "Opinion by Judge GRABER; Dissent by Judge HAWKINS. GRABER, Circuit Judge: In this immigration case, we are called on to decide whether the adverse credibility findings by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) are supported by substantial evidence in the record. We hold that they are and, accordingly, deny the petition. PROCEDURES BELOW Petitioner entered the United States without inspection on May 1, 1995. The United States Immigration and Naturalization Service (INS) later charged Petitioner with being deportable under former section 241(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(1)(B) (1994) (renumbered § 1227(a)(1)(B)). He conceded deportability but applied for asylum, withholding of deportation, and voluntary departure. After a hearing, the IJ approved Petitioner’s application for voluntary departure, a decision from which no appeal has been taken. However, she denied Petitioner’s application for asylum and for withholding of deportation on the ground that Petitioner had not presented credible evidence in support of his claims. The BIA affirmed the IJ’s order. Petitioner timely sought review of the BIA’s final order, arguing that its adverse credibility finding is not supported by substantial evidence. BURDEN OF PROOF Under section 208(a) of the INA, 8 U.S.C. § 1158(a), the Attorney General has discretion to grant asylum to aliens who qualify as “refugees” under the INA. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 88 (1992). A “refugee” is a person who is unwilling to return to the home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). An alien bears the burden of establishing eligibility for asylum. See Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir.1997). An alien must show by credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution. See Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). The Attorney General must grant withholding of deportation when an alien demonstrates a “clear probability” that, if the alien returns to the home country," }, { "docid": "4448984", "title": "", "text": "Petitioner’s theory is that a body of case law which developed under another subsection of the exclusion statute should be extended to the sawed-off shotgun and machine gun subsection of the deportation statute. Under the narcotics and marijuana subsection, some circuits, including ours, have applied the discretion provision of the exclusion statute to the deportation statute. The subsections relating to narcotics and marijuana are similar in the exclusion and deportation statutes. 8 U.S. C.A. §§ 1182(a)(23), 1251(a)(ll) (West Supp. 1987). Courts have reasoned that it was arbitrary to distinguish between an alien who had never left the United States and thus could be treated only under the deportation statute, and one who took a temporary trip abroad, and thereby fell under the exclusion statute. We distinguish these cases, because Congress provided different treatment between sawed-off shotgun and machine gun offense, and narcotics offenses. The line of authorities at issue begins with Arias-Uribe v. Immigration and Naturalization Service, 466 F.2d 1198 (9th Cir.1972). That petitioner sought discretionary relief under 8 U.S.C. § 1182(c) at a deportation hearing arising out of a state court conviction for possession of heroin. This circuit held that “[t]he Attorney General is not given discretion by the immigration laws to waive or suspend deportation for narcotics offenders.” Id. at 1199. The literal approach of this circuit in Arias-Uribe was rejected by the Second Circuit in Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir.1976). Francis held that the petitioner was entitled to apply for discretionary relief in a deportation proceeding based on a state court conviction for possession of marijuana, a misdemeanor. The administrative practice of the INS was to apply the discretionary relief statute to aliens convicted of marijuana possession who had departed from and re-entered the United States, but not to aliens who had never made such a departure, regardless of whether the issue arose at the time of readmission. The INS treated its subsequent exercise of discretion as merely a nunc pro tunc correction of the record of reentry. The Second Circuit held that “the Board’s interpretation of Section 212(c) is unconstitutional" }, { "docid": "21842696", "title": "", "text": "deportation or removal for an alien who is applying or will apply to a consular officer for nonimmigrant visa or nonresident border crossing card, shall be requested through the consular officer and may be granted only in accordance with section 212(a)(17) [8 U.S.C. § 1182(a)(17) ] and (d)(3)(A) [8 U.S.C. § 1182(d)(3)(A) ] of the Act and § 212.4 [8 C.F.R. § 212.4] of this part. However, the alien may apply for such permission on Form 1-212____ Subsection 17 and 8 C.F.R. § 212.-4(b) provide that an alien who has been arrested and deported and who seeks to reenter the United States seek permission to reapply for admission through the United States Consulate which then makes a recommendation to the Attorney General. The Attorney General decides whether to grant the alien permission to apply for admission. See Landon, supra, 459 U.S. at 26 n. 4, 103 S.Ct. at 326 n. 4; Der-Rong Chour v. INS, 578 F.2d 464, 468 (2d Cir. 1978), cert. denied, 440 U.S. 980, 99 S.Ct. 1786, 60 L.Ed.2d 239 (1979). This requirement is valid under Congress’ broad power to control the admission of aliens. See generally Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). “[I]n the exercise of its broad power over immigration and naturalization, ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’ ” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976)). The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Id. (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953) (other citations omitted)). See also Bertrand v. Sava, 684 F.2d 204, 209-212 (2d Cir. 1982). Imposing the burden on an alien, who has been previously deported, to affirmatively seek permission in the United States Consulate is within Congress’ broad power to control immigration and" }, { "docid": "13505483", "title": "", "text": "from that afforded adult criminals. We therefore do not need to follow the procedural due process analysis used by the Court in Salerno.Nor is it unusual that deportation proceedings, which by nature are not only “purely civil” but also a unique kind of civil proceeding, would feature fewer procedural due process protections than a criminal trial. Id., at 1336. See e.g. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) (deportation is a regulatory measure not a form of punishment). In Mathews v. Diaz, 426 U.S. at 80, 96 S.Ct. at 1891, the Supreme Court noted that in the immigration context “Congress regularly makes rules that would be unacceptable if applied to citizens.” See also Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1478; Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976); Bustos-Torres v. INS, 898 F.2d 1053 (5th Cir.1990) (Miranda warnings not required in deportation context, proceeding is civil not criminal). In the case at bar petitioner is a resident alien facing deportation proceedings, having already been convicted of an aggravated felony and already determined to be presumptively deportable. See 8 U.S.C. § 1252a(c). Therefore, the Court finds that the protections afforded by Salerno are inapplicable here. Rather, the Supreme Court teaches that a Court must uphold the legislation if there is a “facially legitimate and bona fide reason” for the statute’s enactment and that it should not “look behind” that reason. Fiallo, 430 U.S. at 794, 97 S.Ct. at 1479. See e.g. Kleindienst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972). The petitioner, however, contends that the Fiallo standard of review is inapplicable because Fiallo involved an equal protection challenge. Yet, such a criticism is without merit. Recently, in Azizi v. Thornburgh, 908 F.2d 1130, 1133-34 (2d Cir.1990), the Second Circuit Court of Appeals had the opportunity to address both a due process and equal protection challenge to section 5 of the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. §§ 1154(h), 1255(e) (1988). In Azizi the" }, { "docid": "8654575", "title": "", "text": "create entitlements which cannot then be taken away except through the use of fair procedures. See Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). The initial question is whether the INA creates entitlements to either form of relief. Section 208, the asylum provision, certainly does not. It grants the Attorney General discretionary power to decide whether any alien shall receive asylum; asylum, therefore, is not a right. By contrast, section 243(h) is written in mandatory language such that an alien is entitled to withholding if he meets the specified criteria. However, one of those criteria is that the alien must not have been convicted by a final judgment of a particularly serious crime, thereby constituting a danger to the community of the United States. Furthermore, the statute states that aggravated felonies are particularly serious crimes. Thus, petitioners are ineligible for withholding of deportation by the terms of the very statute which creates their “entitlement.” Due process is not violated by the fact that a statute places substantive conditions, themselves legitimate, on the availability of a particular entitlement. See Martins v. INS, 972 F.2d 657, 662 (5th Cir.1992) (per curiam). Petitioners’ other constitutional challenges are similarly doomed to failure. The Supreme Court has repeatedly emphasized that ‘“over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909)). Whether an immigration provision is constitutional depends only on the existence of a “ ‘facially legitimate and bona fide reason’ ” for its enactment. Id. 430 U.S. at 794, 97 S.Ct. at 1479 (quoting Kleindeinst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972)). Surely Congress’ decision that aliens convicted of drug trafficking offenses should not receive relief from deportation rests on a facially legitimate and bona fide reason. These provisions therefore withstand our limited judicial review. For the foregoing" }, { "docid": "11329838", "title": "", "text": "Finally, the Board stated that “[t]he possibility of some economic loss to the ... [petitioners], if deported, is insufficient considering the other circumstances of this case to warrant a finding that a prima facie showing of extreme hardship has been made.” (Record at 4). We agree with the Board that petitioners have not made the necessary prima facie showing to become entitled to a hearing by the immigration judge. We hold that the Board did not abuse its discretion in finding that petitioners did not make a prima facie showing that deportation would result in extreme hardship to themselves or to their United States citizen relatives. The fact that one petitioner has a United States citizen child (who is the grandchild of the other petitioner) alone does not establish a prima facie case for suspension of deportation. The argument that deportation of the parent would amount to de facto deportation of the child and thus violate the constitutional rights of the child has been rejected. Gonzalez-Cuevas v. Immigration and Naturalization Service, 515 F.2d 1222 (5th Cir. 1975); accord Urbano de Malaluan v. Immigration and Naturalization Service, 577 F.2d 589 (9th Cir. 1978). We believe this case is controlled by the Gonzalez-Cuevas case, supra. Accordingly, the motion of the petitioners for reversal of the order of the Board of Immigration Appeals denying their Motion to Reopen is DENIED. . In their brief to this court, petitioners also argue that the Board of Immigration Appeals erred in its decision affirming the immigration judge’s order of deportation. We do not consider this challenge to the order of deportation because it was not timely filed. 8 U.S.C. § 1105a(a)(I) (1976); Gena v. Immigration and Naturalization Service, 424 F.2d 227 (5th Cir. 1970). . 8 U.S.C. § 1254 (1976) reads, in pertinent part: (а) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and— (1) is deportable under any" }, { "docid": "22846768", "title": "", "text": "(1st Cir. 1976). The exercise of this authority must be upheld unless there is an abuse of discretion. Antolos v. Immigration & Naturalization Service, 402 F.2d 463, 464 (9th Cir. 1968). Petitioners argue that it was an abuse of discretion to deny them a longer period of time for their voluntary departure because there were no unfavorable factors in petitioners’ case that weighed against the granting of the time requested. This contention is without merit. No abuse of discretion appears from the record before us. The immigration judge, after considering the absence of unfavorable circumstances, exercised his discretion to grant a three month voluntary departure time. No facts were presented to the immigration judge to support petitioners’ request for a longer period of time. The only reason given the trial court for a 15 month extended voluntary departure was the need for time to prosecute this appeal. The time granted by the immigration judge accomplished this purpose. Petitioners’ contention that minor citizen children are denied equal protection of the laws because they cannot petition for their parents’ admission into the United States, while persons over the age of 21 may do so, has been repeatedly rejected. Rubio de Cacbu v. Immigration & Naturalization Service, 568 F.2d 625, 627 (9th Cir. 1977). The purpose of the age requirement is to prevent wholesale circumvention of the immigration laws by persons who enter the country illegally and promptly have children to avoid deportation. Urbano de Malaluan v. Immigration & Naturalization Service, 577 F.2d 589, 594 (9th Cir. 1978). Petitioners’ argument that the deportation is cruel and unusual punishment in violation of the Eighth Amendment has also been rejected by this circuit. Le Tourneur v. Immigration & Naturalization Service, 538 F.2d 1368, 1370 (9th Cir. 1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 748, 50 L.Ed.2d 757 (1977). [H] It is true, as argued by petitioners, that the deportation of alien parents results in the de facto deportation of their minor citizen children. This consideration alone does not make the deportation of the parents illegal. An alien cannot gain favored status merely because he" }, { "docid": "8566112", "title": "", "text": "that Congress’ 1987 amendment of 8 U.S.C. § 1182(a)(23), adding language that permits exclusion of an alien who the immigration officers know or have reason to believe “is or has been a knowing assistor, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance”, establishes that Correa must not have been covered by the earlier version, which speaks only of traffickers per se and not of aiders or abettors. This argument is equally frivolous. It is premised upon Correa’s post hoc claim that she was merely an “assister, abettor, conspirator or colluder with others” and thus not a trafficker. However, the finding of the Immigration Judge, based on ample evidence and affirmed by the BIA, was to the contrary. Correa next argues that 8 U.S.C. § 1182(a)(23) works an unconstitutional deprivation of her right to equal protection because it subjects the resident alien, normally entitled to deportation proceedings, to exclusion proceedings based merely upon the alien’s having temporarily trav-elled abroad. We reject this argument as well. Over no subject is the power of Congress more complete than it is over the admission of aliens. Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). The power to expel or exclude aliens is a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control. Fiallo v. Bell, 430 U.S. 787, 794-96, 97 S.Ct. 1473, 1479-80, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 518-19, 96 L.Ed. 586 (1952). Indeed, it may well be that Congress can bar aliens from entering the United States for discriminatory and arbitrary reasons, and that the usual constraints of rationality imposed by the equal protection clause do not limit the federal government’s power to regulate immigration. Matter of Longstaff, 716 F.2d 1439, 1442-43 (5th Cir.1983), cert. denied, 467 U.S." }, { "docid": "22340427", "title": "", "text": "if this statutory construction is applied to his case, then he is deprived of the equal protection of the laws as guaranteed by the fifth amendment. He argues that the statute as so applied creates two classes of aliens identical in every respect except for the fact that members of one class have departed and returned to this country at some point after they became deportable. Thus the distinction is not rationally related to any legitimate purpose of the statute. The authority of Congress and the executive branch to regulate the admission and retention of aliens is virtually unrestricted. Lem Moon v. United States, 158 U.S. 538, 15 S.Ct. 967, 39 L.Ed. 1082 (1895); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Enforcement of the immigration laws is often related to considerations both of foreign policy and the domestic economy. Nevertheless “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . ” Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954). It has long been held that the constitutional promise of equal protection of the laws applies to aliens as well as citizens, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Recently, this court reaffirmed the applicability of the equal protection guarantee to deportation proceedings. Noel v. Chapman, 508 F.2d 1023 (2d Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40, 44 U.S.L.W. 3200 (1975). Although the right of a permanent resident alien to remain in this country has never been held to be the type of “fundamental right” which would subject classifications touching on it to strict judicial scrutiny, the Supreme Court has observed that “deportation can be the equivalent of banishment or exile. . . . ” Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17, 19 (1947). Under the minimal scrutiny test, which we consider applicable in this case, distinctions between different classes of persons must be reasonable, not arbitrary, and" } ]

[ { "docid": "22617987", "title": "", "text": "uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action. E. g., Rakas v. Illinois, 439 U. S. 128, 143, and n. 12 (1978); id., at 150, 151 (concurring opinion); id., at 164 (dissenting opinion) ; United States v. Chadwick, 433 U. S. 1, 7 (1977); United States v. Miller, 425 U. S. 435, 442 (1976); United States v. Dionisio, 410 U. S. 1, 14 (1973); Couch v. United States, 409 U. S. 322, 335-336 (1973); United States v. White, 401 U. S. 745, 752 (1971) (plurality opinion); Mancusi v. DeForte, 392 U. S. 364, 368 (1968); Terry v. Ohio, 392 U. S. 1, 9 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U. S., at 361 — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as 'reasonable,’ ” id., at 361— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353. See Rakas v. Illinois, 439 U. S., at 143-144, n. 12; id., at 151 (concurring opinion); United States v. White, 401 U. S., at 752 (plurality opinion). B In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company’s central offices, petitioner obviously cannot claim that his “property”’ was invaded or that police intruded into a “constitutionally protected area.” Petitioner’s claim, rather, is that, notwithstanding the absence" } ]

[ { "docid": "2937281", "title": "", "text": "the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in Katz, supra, neither were they disposi-tive in Hester v. United States, 265 U.S. 57 [44 S.Ct. 445, 68 L.Ed. 898] (1924). Id. — U.S. at —, 103 S.Ct. at 1087, 75 L.Ed.2d at 64 (emphasis added). In Bailey, we said “beeper surveillance of non-contraband personal property in private areas trenches upon legitimate expectations of privacy and constitutes a search or seizure within the meaning of the fourth amendment.” 628 F.2d at 944. Nothing in Knotts erodes that principle as it applies to monitoring beepers located in areas in which the subject of the search exhibits a legitimate expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Bailey, 628 F.2d at 940; United States v. Karo, 710 F.2d 1433, 1439 (10th Cir.1983). We come back, then, to the question we posed on remand— namely, whether defendants Lenk, Sword, or Cassity, had exhibited a legitimate expectation of privacy in those places into which they carried the chemicals containing the beepers. Cassity I, 631 F.2d at 464-65. The district court held that they had. We agree. Because fourth amendment rights are “personal,” Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978), the central inquiry in any suppression hearing is whether the defendant challenging the admission of evidence has shown a legitimate expectation of privacy in the place searched or the thing seized. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Whether a legitimate expectation of privacy exists in a particular item or place is a determination to be made on a case-by-case basis. Brown, 635 F.2d 1207 at 1211. That question in turn entails a two-part inquiry: (1) whether the individual defendant has exhibited an actual subjective expectation of privacy and (2) whether that expectation is one society recognizes as reasonable or legitimate. Katz v. United States, 389 U.S. 347, 362, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring); Smith" }, { "docid": "9930330", "title": "", "text": "of proof of additional evidence to augment the record on this issue. “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Only defendants whose personal Fourth Amendment rights have been violated may benefit from the exclusionary rule’s protections. Rakas v. Illinois, 439 U.S. at 134, 99 S.Ct. at 425. To establish that his Fourth Amendment rights have been violated by an unlawful search, a defendant must show that he had a legitimate “expectation of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980) (emphasis added). The inquiry focuses on the place searched, and while the defendant’s possessory interests in either the premises or the seized goods are relevant, they are not dispositive. -The Supreme Court has “emphatically rejected the notion that ‘arcane’ concepts of property law ought to control the ability to claim the protections of the Fourth Amendment.” Rawlings v. Kentucky, 448 U.S. at 105, 100 S.Ct. at 2561. Moreover, the Supreme Court in United States v. Salvucci overruled the automatic standing rule for possession crimes set forth in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). As noted by the Supreme Court in Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979), the determination of whether a defendant has a “legitimate expectation of privacy” involves two distinct inquiries: The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” ...— whether, in the words of the Katz [Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967)] majority, the individual has shown that “he seeks to preserve [something] as private.” ... The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable’ ” . .. —whether ... the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. (Citations" }, { "docid": "2674593", "title": "", "text": "not violate the Fourth Amendment when they entered Dillard’s duplex and walked to the second floor because Dillard did not have a reasonable expectation of privacy in the common hallway and stairway of his duplex that were unlocked and open to the public. The “capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A person has an expectation of privacy if he has a subjective expectation of privacy, and if society is prepared to recognize that expectation as objectively reasonable. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). In analyzing whether a subjective expectation of privacy is objectively reasonable, this court considers a number of factors: (1) whether the defendant was legitimately on the premises; (2) his proprietary or pos-sessory interest in the place to be searched or the item to be seized; (3) whether he had the right to exclude others from the place in question; and (4) whether he had taken normal precautions to maintain his privacy. See United States v. King, 227 F.3d 732, 744 (6th Cir.2000). ? is no question that Dillard, as a tenant, had a possessory interest in the common hallway and stairway of his duplex and the right generally to exclude anyone who was not a tenant. But because Dillard made no effort to maintain his privacy in the common hallway and stairway, he did not have an objectively reasonable expectation of privacy in those areas. Both doors on the first floor were not only unlocked but also ajar. By not locking the duplex’s doors, Dillard did nothing to indicate to the officers that they were not welcome in the common areas. Moreover, without being able to pass through the hallway and stairway, there was no visible way for the police or anyone else to alert the duplex tenants of their presence. There was no" }, { "docid": "23071279", "title": "", "text": "SEARCH OF 1972 JAGUAR Anthony Peters next challenges the district court’s determination that Peters did not have standing to object to the search of a 1972 Jaguar owned by coconspirator Walter Daniels. Peters’ ability to challenge the search of the Jaguar depends upon whether he can establish a reasonable expectation of privacy in the car. Peters asserts a reasonable expectation of privacy based on his occasional use of the car, on his possession of keys to the car, on his arranging to store the car in his parents’ driveway from December 1982 until the time of its seizure in April 1983, on his paying for repairs to the car, and on his “equitable” interest in the car. As the Supreme Court has stated, “this inquiry ... normally embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy’ — whether ... the individual has shown that ‘he seeks to preserve [something] as private.’ The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as reasonable’ — whether the individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (quoting Katz v. United States, 389 U.S. 347, 353, 351, 361, 88 S.Ct. 507, 512, 511, 516, 19 L.Ed.2d 576 (1967) (citations omitted)). The defendant has the burden of proving a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 101, 100 S.Ct. 2556, 2559, 65 L.Ed.2d 633 (1980). In applying this two-prong test several factors are relevant: [1] whether the defendant has a posses-sory [or ownership] interest in the thing seized or the place searched, [2] whether he has the right to exclude others from that place, [3] whether he has exhibited a subjective expectation that it would remain free from governmental invasion, [4] whether he took normal precautions to maintain his privacy and [5] whether he was legitimately on the premises. United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir.1981), cert." }, { "docid": "18555215", "title": "", "text": "at 511. In defining the criteria to be applied in determining whether a Fourth Amendment “search” had taken place, the Court concluded that governmental intrusion would constitute a search and seizure within the Fourth Amendment only if it “violated the privacy upon which [the defendant] justifiably relied.” Katz, 389 U.S. at 353, 88 S.Ct. at 512. In Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979), the Court noted that an evaluation of governmental action asserted to have impinged upon an individual’s reasonable expectation of privacy embraced consideration of two discrete questions: The first is whether the individual, by his conduct,, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361, 88 S.Ct., at 516 — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351, 88 S.Ct., at 511. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” id., at 361, 88 S.Ct. at 516 — whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353, 88 S.Ct., 512. See Rakas v. Illinois, 439 U.S. [128] at 143-144 n. 12, 99 S.Ct. [421] at 430 [-431 n. 12, 58 L.Ed.2d 387 (1978) ] id., at 1512, 99 S.Ct., at 434 (concurring opinion); United States v. White, 401 U.S., [745] at 752, 91 S.Ct. [1122] at 1126 [28 L.Ed.2d 453 (1971) ] (plurality opinion). See also United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 1085, 75 L.Ed.2d 55 (1983). In the present case, Padin urged that he exhibited a reasonable expectation of privacy when he telephoned the Skippy House because of his leasehold interest in the premises and the telephone directory listing that he had retained in his name and the ultimate control he asserted over the premises, albeit as an absentee landlord. The government argued that since Padin failed to determine the identity of the answering individual before he voluntarily communicated his" }, { "docid": "19920392", "title": "", "text": "You Bin Yang’s Fourth Amendment rights. The magistrate judge denied the defendants’ motion to suppress, holding that Yang had no expectation of privacy in the notebooks once he turned them over to the police. The district court issued an order adopting the magistrate judge’s report and recommendation. On May 2, the defendants entered conditional guilty pleas, reserving the right to appeal the suppression issue. On July 12, the district court sentenced the defendants to 34 months in prison. II. Analysis Yang and his brother contend that the district court erred by denying their motion to suppress. Specifically, Yang and his brother argue that the government violated their Fourth Amendment rights by searching through the contents of the notebooks. The government responds that Yang had no expectation of privacy in the notebooks after he gave them to Officer Schneider. This Court reviews legal determinations related to a motion to suppress de novo and findings of fact for clear error. United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.2006). The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects ... shall not be violated, and no Warrants shall issue, but upon probable cause ...” U.S. Const, amend. IV. The Constitution thus protects against war-rantless intrusions, but only where an individual has a “legitimate expectation of privacy.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Whether an expectation of privacy exists for Fourth Amendment purposes depends upon two questions: 1) whether the individual, by his conduct, has exhibited an actual expectation of privacy; and 2) whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A defendant objecting to a search bears the burden of proving that he or she had a legitimate expectation of privacy in the item searched. United States v. Pitts, 322 F.3d 449, 456 (7th Cir.2003). The Supreme Court has noted that an individual claiming a subjective expectation of privacy must" }, { "docid": "15060971", "title": "", "text": "Rush cannot assert an expectation of privacy in the suitcase because of his disclaimer, but that he can be found guilty of the knowing possession of the narcotics. In assessing Mr. Rush’s contentions, we begin by reiterating that the denial of a motion to suppress will not be overturned on appeal unless it is clearly erroneous. See United States v. Dunigan, 884 F.2d 1010, 1014 (7th Cir.1989); United States v. D’Antoni, 856 F.2d 975, 978 (7th Cir.1988). We shall accept the findings of fact of the district court unless they are clearly erroneous. D’Antoni, 856 F.2d at 978. Law enforcement officers seeking to search private property must respect a “legitimate expectation of privacy” in that property. Rakas v. Illinois, 439 U.S. 128, 142, 99 S.Ct. 421, 429-30, 58 L.Ed.2d 387 (1978). As this court noted in United States v. Peters, 791 F.2d 1270, 1281 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986), the Supreme Court has stated that the determination of whether an individual has such a “legitimate expectation of privacy” “normally embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy’— whether ... the individual has shown that ‘he seeks to preserve [something] as private.’ The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as reasonable’ — whether the individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (quoting Katz v. United States, 389 U.S. 347, 353, 351, 361, 88 S.Ct. 507, 512, 511, 516, 19 L.Ed.2d 576 (1967) (citations omitted)). Other circuits have interpreted the Supreme Court’s direction in identical fashion. See, e.g., United States v. McBean, 861 F.2d 1570, 1573 & n. 7 (11th Cir.1988); United States v. Knox, 839 F.2d 285, 293 (6th Cir.1988), cert. denied, - U.S.-, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989). Here, the first prong of the inquiry resolves the matter. Our colleagues in the Eleventh Circuit have stated the" }, { "docid": "7595569", "title": "", "text": "indisputable after T.L. 0., is the proposition that the Fourth Amendment applies to searches of students conducted by public school officials. 105 S.Ct. at 739-41. Just as students are protected by the Fourth Amendment, teachers are also entitled to the amendment’s protection against unreasonable searches by school officials. See, Gillard v. Schmidt, 579 F.2d 825, 828 (3d Cir.1978) (public school guidance counselor alleging a search of his desk by a school board member properly alleged a violation of the Fourth Amendment). However, in assessing the reasonableness of a job-related search or seizure by a supervisor relative to a government employee, a court will take into account the supervisor’s legitimate oversight responsibilities and the special duties that may be owed by the employee by virtue of his employment. The employee’s protected privacy interest may be less in such circumstances. At bottom, “[wjhether the Fourth Amendment’s prohibition against unreasonable searches and seizures has been violated depends on whether the person asserting a Fourth Amendment violation had a reasonable expectation of privacy in the place searched or the thing seized.” United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983) (citing United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982)). See also, Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (discussing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Thus, given the facts here, the basic question is whether Alinovi had a reasonable expectation of privacy in her term paper. In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court, adopting Justice Harlan’s statement of the rule in his concurrence in Katz v. United States, 389 U.S. at 360-62, 88 S.Ct. at 516-17, announced a two-step test for determining whether a reasonable expectation of privacy exists. The first question is: whether the individual, by his conduct, has “exhibited an actual (subjective) ex- ‘ pectation of privacy”, 389 U.S., at 361 [88 S.Ct. at 516] — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve" }, { "docid": "23397882", "title": "", "text": "one of which Bryda used to open the suitcase wherein approximately 280 grams of cocaine was discovered. Tolbert was then placed under arrest and advised of her rights. On defendant’s motion, the district court suppressed the evidence discovered in the suitcase. The lower court concluded that the search of the luggage without a warrant and in the absence of exigent circumstances violated the defendant’s Fourth Amendment rights. The lower court rejected the government’s contention that Tolbert had abandoned the luggage at the time of the search. The government instituted this appeal. It should be emphasized that the term “abandonment,” as employed herein, does not refer to traditional concepts of property law. The concept of abandonment considered in the present context is a Fourth Amendment issue and the “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.”' Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Thus, the crucial inquiry is “whether governmental officials violated any legitimate expectation of privacy held by the [defendant]” Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980). The Supreme Court has noted that the concept of a “legitimate expectation of privacy” incorporates two elements: The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” [Katz v. United States ] 389 U.S. [347] at 361, [88 S.Ct. 507 at 516, 19 L.Ed.2d 576 (1967) ] whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351 [88 S.Ct., at 511]. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” id. at 361 [88 S.Ct., at 516]— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353 [88 S.Ct., at" }, { "docid": "15723885", "title": "", "text": "to challenge whether the scope of the warrant included the basement area, and we also agree with Defendant that the officer exceeded the scope of the warrant in searching the basement area. 1. Whether Defendant had a Legitimate Expectation of Privacy in the Basement Area of the Two-Family Dwelling Because Fourth Amendment rights are “personal,” see Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the central inquiry in any suppression hearing is whether the defendant challenging the admission of evidence has shown a legitimate expectation of privacy in the place searched or the thing seized. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); see Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Kincaide, 145 F.3d 771, 779 (6th Cir.1998). A determination of whether a legitimate expectation of privacy exists involves a two-part inquiry. “First, we ask whether the individual, by conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he sought to preserve something as private.... Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” See Bond v. United States, 729 U.S. 334, 120 S.Ct. 1462, 1465, 146 L.Ed.2d 365 (2000) (citation, internal quotation marks, and alterations omitted). Whether a legitimate expectation of privacy exists in a particular place or item is a determination to be made on a case-by-case basis. See United States v. Brown, 635 F.2d 1207, 1211 (6th Cir.1980). “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. The courts have considered a number of factors in identifying those expectations which qualify for Fourth Amendment protection. Although the most obvious among the factors is the person’s proprietary or possessory interest in the place to be searched or item to be seized," }, { "docid": "22346699", "title": "", "text": "that end did not happen to penetrate the wall of the booth can have no constitutional significance.” Ibid. In Smith v. Maryland, 442 U. S. 735 (1979), we elaborated on the principles stated in Katz: “Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action. [Citations omitted.] This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ 389 U. S., at 361 — whether, in the words of the Katz majority, the individual has shown that ‘he seeks to preserve [something] as private.’ Id., at 351. The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable,”’ id., at 361— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances. Id., at 353. See Rakas v. Illinois, 439 U. S., at 143-144, n. 12; id., at 151 (concurring opinion); United States v. White, 401 U. S., at 752 (plurality opinion).” 442 U. S., at 740-741 (footnote omitted). The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile: “One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion). See also Rakas v. Illinois, 439 U. S. 128, 153-154, and n. 2 (1978) (Powell, J., concurring); South Dakota v. Opperman, 428 U. S." }, { "docid": "2674592", "title": "", "text": "Id. at 402. We held that, because the district court’s decision rested on a credibility determination, and because the police version was one of two permissible views of the evidence, the district court’s finding was not clearly erroneous. Id. For the same reasons, the district court’s factual findings in this case were not clearly erroneous. Thus, we will as sume that (1) the police officers found both doors on the first floor of Dillard’s duplex unlocked and open, (2) the officers knocked and were let into the apartment voluntarily by Holton, and (3) Holton voluntarily consented to the search of the apartment. B. Dillard’s Fourth Amendment Expectation of Privacy Under these facts, the police officers did not violate the Fourth Amendment. Holton let the officers into the apartment and consented to the search. Although a consent form, signed after a Fourth Amendment violation, cannot be relied upon to cure an otherwise illegal search, see United States v. Lewis, 231 F.3d 238, 241 (6th Cir.2000), no such violation is present in this case. The officers did not violate the Fourth Amendment when they entered Dillard’s duplex and walked to the second floor because Dillard did not have a reasonable expectation of privacy in the common hallway and stairway of his duplex that were unlocked and open to the public. The “capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A person has an expectation of privacy if he has a subjective expectation of privacy, and if society is prepared to recognize that expectation as objectively reasonable. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). In analyzing whether a subjective expectation of privacy is objectively reasonable, this court considers a number of factors: (1) whether the defendant was legitimately on the premises; (2) his proprietary or pos-sessory interest in the place to be searched" }, { "docid": "7595570", "title": "", "text": "thing seized.” United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983) (citing United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982)). See also, Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (discussing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Thus, given the facts here, the basic question is whether Alinovi had a reasonable expectation of privacy in her term paper. In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court, adopting Justice Harlan’s statement of the rule in his concurrence in Katz v. United States, 389 U.S. at 360-62, 88 S.Ct. at 516-17, announced a two-step test for determining whether a reasonable expectation of privacy exists. The first question is: whether the individual, by his conduct, has “exhibited an actual (subjective) ex- ‘ pectation of privacy”, 389 U.S., at 361 [88 S.Ct. at 516] — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351 [88 S.Ct. at 511]. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” Id., at 361 [88 S.Ct. at 516] — whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353 [88 S.Ct. at 512]. See, Rakas v. Illinois, 439 U.S. at 143-44 n. 12 [99 S.Ct. at 430-31 n. 12] (concurring opinion); United States v. White, 401 U.S. [745], at 752 [91 S.Ct. at 1126] (plurality opinion). 442 U.S., at 740-41, 99 S.Ct. at 2580-81 (footnote omitted). See also, United States v. Thornley, supra; United States v. Hershenow, supra. Applying this test to the case at bar, we must reject, as did the district court, Alinovi’s claim to Fourth Amendment protection. The district court, trying the case without a jury, found that Alinovi did not have a reasonable expectation of privacy in her term paper after she brought it to Chris’s core evaluation meeting" }, { "docid": "4865731", "title": "", "text": "protections of the Fourth Amendment, a person must have a “justifiable,” “reasonable,” or “legitimate” expectation of privacy in the place or item searched. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Precisely what makes an expectation of privacy “justifiable,” “reasonable,” or “legitimate,” however, has never been clearly set forth. See O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (“We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.”); Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (“No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant.”); see also Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L.Rev. 476, 490 (2011) (“Supreme Court opinions studiously avoid saying what makes an expectation of privacy ‘reasonable.’ ”). Nevertheless, the standard for evaluating whether a Fourth Amendment search has occurred, first enunciated by Justice Harlan in his concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), is whether “the individual manifested a subjective expectation of privacy” in the place or item searched, and “society is willing to recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). As the Katz majority noted, the first inquiry is whether the individual has shown that “he seeks to preserve [something] as private.” Katz, 389 U.S. at 351, 88 S.Ct. 507. The second inquiry does not ask whether a reasonable person would expect a certain right of privacy, but instead whether “the individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances.” United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081 (citations omitted). Put another way, “[t]he concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts" }, { "docid": "23677631", "title": "", "text": "442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (citations and quotation marks omitted); see also Kyllo v. United States, 533 U.S. 27, 32-33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”); Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied ... and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”). Determining whether one’s expectation of privacy is justifiable involves two separate inquiries: (1) whether the individual demonstrated an actual or subjective expectation of privacy in the subject of the search or seizure; and (2) whether this expectation of privacy is objectively justifiable under the circumstances. Smith, 442 U.S. at 740, 99 S.Ct. 2577 (quotation marks omitted); Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring); United States v. Ferri, 778 F.2d 985, 994 (3d Cir.1985). Second, as the Supreme Court’s recent decision in Jones makes clear, a Fourth Amendment search also occurs where the government unlawfully, physically occupies private property for the purpose of obtaining information. See 132 S.Ct. at 949-52 (stating that the reasonable-expectation-of-privacy test set forth in Katz was “added to, not substituted for, the common-law trespassory test”) (emphasis in original). Under this analysis, we must determine whether the government committed common-law trespass when obtaining the information. See Jones, 132 S.Ct. at 949-52; see also Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (explaining the common-law-trespass test employed prior to Katz). If such a trespass occurs, then the government’s actions constitute a search implicating the Fourth Amendment. See Jones, 132 S.Ct. at 949-52. Here, the District Court erred in dismissing Plaintiffs’ Fourth Amendment claim, as sought to be amended. Courts generally must consider the concrete factual context when determining the constitutional validity of a warrantless search. See Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889," }, { "docid": "417732", "title": "", "text": "Court held that the warrantless eavesdropping “constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id. The Court restated the oft-cited Katz test in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action. E.g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, and n. 12 (1978); id., at 150, 151, 99 S.Ct., at 434, 435 (concurring opinion); id., at 164, 99 S.Ct., at 441 (dissenting opinion); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Couch v. United States, 409 U.S. 322, 335-336, 93 S.Ct. 611, 619-620, 34 L.Ed.2d 548 (1973); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361, 88 S.Ct. at 516—whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351, 88 S.Ct., at 511. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” id., at 361, 88 S.Ct., at 516— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at" }, { "docid": "9930331", "title": "", "text": "Rawlings v. Kentucky, 448 U.S. at 105, 100 S.Ct. at 2561. Moreover, the Supreme Court in United States v. Salvucci overruled the automatic standing rule for possession crimes set forth in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). As noted by the Supreme Court in Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979), the determination of whether a defendant has a “legitimate expectation of privacy” involves two distinct inquiries: The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” ...— whether, in the words of the Katz [Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967)] majority, the individual has shown that “he seeks to preserve [something] as private.” ... The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable’ ” . .. —whether ... the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. (Citations omitted). See also United States v. Mackey, 626 F.2d 684, 687 n. 4 (9th Cir.1980). We apply the above guides to the evidentiary record on appeal. Neither Roni Nadler nor Dorian Nadler had any ownership interest in the Victory Printing business or the building itself. All of the equipment in the shop belonged to co-defendants Kapelnikov and Malka, except for a printing press and a plate maker purchased by Dorian Nadler and Munt expressly for the counterfeiting operation. These items had been suppressed by the District Court. When the agents entered Victory Printing to execute the search warrant at approximately 9:00 p.m. on September 11, 1980, they discovered Munt in the process of manufacturing counterfeit money and placed him under arrest. Dorian Nadler was not inside the print shop at that time. The evidence indicates that at the time of Munt’s arrest, Dorian Nadler parked his vehicle in front of a liquor store next to the print shop, went into the liquor store, started toward the print shop, and then turned back toward a bank" }, { "docid": "19920393", "title": "", "text": "of the people to be secure in their persons, houses, papers, and effects ... shall not be violated, and no Warrants shall issue, but upon probable cause ...” U.S. Const, amend. IV. The Constitution thus protects against war-rantless intrusions, but only where an individual has a “legitimate expectation of privacy.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Whether an expectation of privacy exists for Fourth Amendment purposes depends upon two questions: 1) whether the individual, by his conduct, has exhibited an actual expectation of privacy; and 2) whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A defendant objecting to a search bears the burden of proving that he or she had a legitimate expectation of privacy in the item searched. United States v. Pitts, 322 F.3d 449, 456 (7th Cir.2003). The Supreme Court has noted that an individual claiming a subjective expectation of privacy must exhibit that expectation, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the defendant’s allegedly invasive actions. Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). In other words, Yang must demonstrate that he sought to preserve the contents of the notebooks as private. See United States v. Waller, 426 F.3d 838, 844 (6th Cir.2005). Moreover, a hope of privacy is not an expectation of privacy. California v. Rooney, 483 U.S. 307, 321, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987) (White, J., dissenting). Courts applying the subjective expectation prong have looked to the individuals’ affirmative steps to conceal and keep private whatever item was the subject of the search. See MacWade v. Kelly, 460 F.3d 260, 272 (2d Cir.2006) (noting that “a person carrying items in a closed, opaque bag has manifested his subjective expectation of privacy”); United States v. Davis, 332 F.3d 1163, 1168 (9th Cir.2003) (stating that “by placing his gym bag under the bed, [the defendant] ‘manifested an" }, { "docid": "23397883", "title": "", "text": "99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Thus, the crucial inquiry is “whether governmental officials violated any legitimate expectation of privacy held by the [defendant]” Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980). The Supreme Court has noted that the concept of a “legitimate expectation of privacy” incorporates two elements: The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” [Katz v. United States ] 389 U.S. [347] at 361, [88 S.Ct. 507 at 516, 19 L.Ed.2d 576 (1967) ] whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351 [88 S.Ct., at 511]. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” id. at 361 [88 S.Ct., at 516]— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353 [88 S.Ct., at 512], See Rakas v. Illinois, 439 U.S., at 143-144 n. 12 [99 S.Ct., at 430-431 n. 12], id., at 151 [99 S.Ct., at 434], (concurring opinion); United States v. White, 401 U.S. [745] at 752 [91 S.Ct. 1122 at 1126, 28 L.Ed.2d 453 (1971)] (plurality opinion). Smith v. Maryland, 442 U.S. 735, 741-42, 99 S.Ct. 2577, 2580-2581, 61 L.Ed.2d 220 (1978). See United States v. Bailey, 628 F.2d 938, 941 (6th Cir.1980). Applying these principles to the facts of the case at bar, the Court is constrained to conclude that Tolbert possessed no reasonable expectation of privacy in the suitcase at the time of the search. When Tolbert was approached by the agents, she was entering a taxicab apparently intent on departing the airport without her luggage. This fact alone would not support a finding that she maintained no subjective belief that her bag was secure from government intrusion. An individual may depart from an airport without claiming her luggage for a variety of reasons, with full and legitimate intent to return and claim the" }, { "docid": "17273644", "title": "", "text": "of privacy in the passenger compartment or trunk of the Subaru. Therefore, he cannot successfully challenge the police conduct here. Because the district court erred in suppressing the items seized, we vacate the suppression order and remand the case for further proceedings. A defendant cannot invoke the Fourth Amendment’s protections unless he has a legitimate expectation of privacy against the government’s intrusion. United States v. Jacobsen, — U.S. -, -, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Illinois v. Andreas, — U.S. -, - - -, 103 S.Ct. 3319, 3322-24, 77 L.Ed.2d 1003 (1983); United States v. Knotts, 460 U.S. 276, _, 103 S.Ct. 1081, 1084, 75 L.Ed.2d 55 (1983); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citations omitted). The Supreme Court has on several occasions endorsed the two point test formulated by Justice Harlan in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), to determine if a defendant has a legitimate expectation of privacy. See, e.g., Michigan v. Clifford, — U.S. -, -, 104 S.Ct. 641, 646, 78 L.Ed.2d 477 (1984) (plurality opinion); United States v. Knotts, 460 U.S. at -, 103 S.Ct. at 1084; Smith v. Maryland, 442 U.S. at 740-41, 99 S.Ct. at 2580-81; Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978). Justice Harlan’s test to ascertain whether a legitimate expectation of privacy existed is: [F]irst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). We have little doubt that Roy harbored a subjective expectation of privacy, at least as to the trunk of the Subaru. His locking the weapons and several other items in the trunk of the car indicates as much. See United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982). Therefore, Roy satisfies the" } ]

[ { "docid": "22600725", "title": "", "text": "to them the power and authority to effect the very deprivation complained of here, Burch’s confinement in a mental hospital, and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement. In Parratt and Hudson, the state employees had no similar broad authority to deprive prisoners of their personal property, and no similar duty to initiate (for persons unable to protect their own interests) the procedural safeguards required before deprivations occur. The deprivation here is “unauthorized” only in the sense that it was not an act sanctioned by state law, but, instead, was a “deprivation] of constitutional rights ... by an official’s abuse of his position. ” Monroe, 365 U. S., at 172. We conclude that petitioners cannot escape § 1983 liability by characterizing their conduct as a “random, unauthorized” violation of Florida law which the State was not in a position to predict or avert, so that all the process Burch could possibly be due is a postdeprivation damages remedy. Burch, according to the allegations of his complaint, was deprived of a substantial liberty interest without either valid consent or an involuntary placement hearing, by the very state officials charged with the power to deprive mental patients of their liberty and the duty to implement procedural safeguards. Such a deprivation is foreseeable, due to the nature of mental illness, and will occur, if at all, at a predictable point in the admission process. Unlike Parratt and Hudson, this case does not represent the special instance of the Mathews due process analysis where postdeprivation process is all that is due because no predeprivation safeguards would be of use in preventing the kind of deprivation alleged. We express no view on the ultimate merits of Burch’s claim; we hold only that his complaint was sufficient to state a claim under § 1983 for violation of his procedural due process rights. The judgment of the Court of Appeals is affirmed. It is so ordered. Section 1983 reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage," } ]

[ { "docid": "3025824", "title": "", "text": "its ultimate decision on the ground of “misappropriation,” which was the reason given in the notice letter; the hearing panel was biased; and the hearing panel did not deliberate. However, decisions of the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), indicate that these allegations are insufficient to state a claim under 42 U.S.C. § 1983. 2. Due Process after Parratt/Hudson The Parratt/Hudson doctrine provides that a random, unauthorized deprivation of a property or liberty interest does not violate due process if the state furnishes an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991) (rehearing en banc). In Parratt, a prisoner brought a section 1983 lawsuit against state prison officials after they negligently lost his mail-ordered hobby kit. The prisoner alleged that this deprived him of property without due process of law. The Supreme Court rejected this claim and held that a predeprivation hearing is not always required. Parratt, 451 U.S. at 540, 101 S.Ct. at 1915. The Court noted that the state had provided predeprivation procedures that would have protected the plaintiff’s property interest, but the prison officials failed to follow these procedures. The Court held that situations involving a loss of property caused by random and unauthorized acts of state officials in contravention of established state procedures cannot be predicted. Id. at 541, 101 S.Ct. at 1916. Therefore, the Court concluded that negligent deprivations which occur without a prior hearing do not violate the fourteenth amendment’s due process clause as long as the state provides a “meaningful post-deprivation remedy.” Id. at 544, 101 S.Ct. at 1917. The Court reinforced this holding in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Logan held, however, that the Parratt rationale applies only when the injury is caused by a failure to follow established and adequate state procedures. It does not apply when the state procedures" }, { "docid": "23416074", "title": "", "text": "valid legal finding that patient safety is at issue. Only then does revenge become an acceptable risk and pre-deprivation due process is not required. Here, there is no such finding. We instead must accept as true Dr. Caine’s allegation that the hospital and the other defendants terminated Dr. Caine’s privileges as the core of a personal vendetta. Second, the majority argues that the Parratt/Hudson doctrine, not Zinermon, applies to this case. According to the Par-ratt/Hudson doctrine, when the conduct of state actors is random and unauthorized, the state cannot foresee, predict, or prevent a deprivation resulting from such conduct. In such a situation, post-deprivation procedure is the only process constitutionally required. Zinermon made a strong and sweeping addition to the Parratt/Hud-son doctrine. Here is one aspect of the en banc court going seriously wrong. Under Zinermon, Parratt/Hudson is not applicable when (1) erroneous deprivation is foreseeable, (2) pre-deprivation process is practicable, and (3) challenged conduct is not “unauthorized,” in that the “State delegated to [the state officials] the power and authority to effect the very deprivation complained of” by the plaintiff. Zinermon, 494 U.S. at -, 110 S.Ct. at 989-90. Zinermon, not the narrower Par-ratt/Hudson doctrine, applies to this case. The state can be expected to provide pre-deprivation remedies because the three Zinermon requirements are present. First, the deprivation is foreseeable and comes at a predictable time — when the hospital began termination proceedings. The state can know when the deprivation occurs because procedures are initiated, just as in Zinermon. This is not a case of a single state employee acting on his or her own as in Parratt and Hudson. The state in fact acknowledges that such a deprivation is foreseeable because it attempted to develop procedural safeguards to protect against erroneous deprivation. See Plumer v. State of Md., 915 F.2d 927, 931 (4th Cir.1990). Second, pre-deprivation process is practicable because revenge is at issue — at least at this procedural juncture — not patient safety. Dr. Caine did attach to his original complaint a copy of many hospital records pertaining to his termination. He included a copy of" }, { "docid": "10095377", "title": "", "text": "because of the availability of a similar state tort action. Courts have therefore sought to limit Parratt by making principled distinctions between it and the cases before them. See, e.g., id.; Sullivan v. Town of Salem, 805 F.2d 81 (2d Cir.1986); Sanders v. Kennedy, 794 F.2d 478 (9th Cir.1986); Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc), certiorari denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). One limiting principle is to confine Par-ratt to cases where it is not feasible for the state to provide a hearing before the deprivation occurs. Tavarez, 826 F.2d at 675. For example, in Parratt the Supreme Court found that it was not feasible for the state to provide a pre-deprivation hearing because the loss resulted from “a random and unauthorized act” by a state employee. Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. When a random and unauthorized act causes the loss, a pre-deprivation remedy is ordinarily infeasible, if not impossible, because the officials authorized to grant such a hearing are usually unaware of the deprivation before it occurs. Officials may be unaware of the deprivation before it occurs for either of two reasons. First, the person committing the unconstitutional act may be employed at such a low level of state or local government that the official authorized to grant a pre-deprivation hearing would be unaware of the person’s actions. Second, if the conduct is not the result of some “established state procedure,” Parratt, 451 U.S. at 541, 101 S.Ct. at 1916, the state cannot predict precisely when the loss will occur. And if the state cannot predict when the loss will occur, it cannot provide a meaningful hearing before the deprivation takes place. Id. Thus to determine the feasibility of a pre-deprivation hearing in this case, and therefore the applicability of Parratt, we must consider the position of each defendant in the town and county bureaucracies and the nature of the actions taken. A. Liability of the Civil Town of Clayton The district court dismissed the procedural due process claim against the Civil Town of" }, { "docid": "3025823", "title": "", "text": "the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546, 105 S.Ct. at 1495. The notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Aacen v. San Juan County Sheriffs Dept., 944 F.2d 691, 697 (10th Cir.1991). It must permit adequate preparation for the impending hearing. Id. These minimum constitutional requirements were satisfied in the case at bar. Mr. Hartwick does not deny that he received notice that his contract was being nonrenewed and that he was entitled to a hearing at which he could challenge this decision. He admits that he received a prehearing brief summarizing the Board’s allegations against him. He acknowledges that he was able to present all of the evidence to support his position that he desired at the hearing. Federal due process standards require no more. His complaints about the hearing are that the Board did not base its ultimate decision on the ground of “misappropriation,” which was the reason given in the notice letter; the hearing panel was biased; and the hearing panel did not deliberate. However, decisions of the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), indicate that these allegations are insufficient to state a claim under 42 U.S.C. § 1983. 2. Due Process after Parratt/Hudson The Parratt/Hudson doctrine provides that a random, unauthorized deprivation of a property or liberty interest does not violate due process if the state furnishes an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991) (rehearing en banc). In Parratt, a prisoner brought a section 1983 lawsuit against state prison officials after they negligently lost his mail-ordered hobby kit. The prisoner alleged that this deprived him of property without due process of law. The Supreme Court rejected" }, { "docid": "23068677", "title": "", "text": "summary judgment to the Defendants on Bogart’s § 1983 claim. Specifically, we survey the relevant Supreme Court decisions in Par-ratt, Hudson, and Zinermon. We then explain why, in view of that controlling precedent, Bogart cannot establish her claim for deprivation of her animals in contravention of the procedural aspects of the Due Process Clause of the Fourteenth Amendment. l. In its 1981 Parratt decision, the Supreme Court considered whether an inmate at a Nebraska prison, who ordered $23.50 worth of hobby materials by mail, could sustain a § 1983 procedural due process claim for the negligent loss of the materials by prison officials. 451 U.S. at 529, 101 S.Ct. 1908. The Court was concerned with, inter alia, whether it was practicable for the State to provide a pre-deprivation hearing, and whether the post-deprivation tort remedies provided by the State were constitutionally sufficient. Id. at 537-44, 101 S.Ct. 1908. The Court concluded that the prisoner did not possess a viable § 1983 claim because, in relevant part, “the deprivation did not occur as a result of some established state procedure” but rather “as a result of the unauthorized failure of agents of the State to follow established state procedure,” and because “the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation.” Id. at 543, 101 S.Ct. 1908. Of key significance, the loss of the prisoner’s property was the “result of a random and unauthorized act by a state employee.” Id. at 541, 101 S.Ct. 1908. The Court explained that, because the State could not predict precisely when such a loss would occur, the State could not be expected to provide a meaningful predeprivation hearing. Id. The Court extended its Parratt holding, in its 1984 Hudson decision, to intentional deprivations of property. Hudson, 468 U.S. at 533, 104 S.Ct. 3194. The plaintiff in Hudson, an inmate at a Virginia prison, alleged that a correctional officer had intentionally destroyed some of the prisoner’s noncontraband property during a search of his cell. Id. at 519-20, 104 S.Ct. 3194. The lower courts, including this Court, had" }, { "docid": "18990981", "title": "", "text": "347, 356-57 (Tex.App.2000). However, we need not address the issue of whether a defendant’s entitlement to immunity renders a post-deprivation remedy unavailable because Dr. Stotter is not required to establish the unavailability of post-deprivation remedies in this case. Under the Parratt/Hudson doctrine “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The key word is “unauthorized.” The Supreme Court later clarified that if the deprivation was authorized by the state and the state had an opportunity to provide some type of pre-deprivation remedy, failure to do so implicates the due process clause. Zinermon v. Burch, 494 U.S. 113, 127-30, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). In applying Zinermon, this circuit has held that a § 1983 action for deprivation of procedural due process is barred if a state has adequate post-deprivation remedies and the following conditions exist: (1) the deprivation must truly have been unpredictable or unforeseeable; (2) pre-deprivation process would have been impossible or impotent to counter the state actors’ particular conduct; and (3) the conduct must have been unauthorized in the sense that it was not within the officials’ express or implied authority. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.1991) (en banc). Otherwise, a § 1983 action for deprivation of procedural due process is not barred under the Parratt/Hudson doctrine. Here, the deprivation was both predictable and foreseeable. In fact, not only was it possible for Dr. Bailey to provide a pre-deprivation remedy in this case, he attempted to do so by sending Dr. Stotter a letter giving him an opportunity to remove any personal items from his lab. Moreover, UTSA and Dr. Bailey specifically authorized the" }, { "docid": "1026055", "title": "", "text": "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.” Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). III The district court dismissed Woodard’s due process claim based upon the doctrine articulated in Hudson v. Palmer, sit,pra. The Parratt/Hudson doctrine, as it is known, dictates that a state actor’s random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991) (en banc) (discussing Parratt v. Taylor, 451 U.S. 527, 542-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517, 530-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). “The doctrine is meant to protect the state from liability for failing to provide pre-deprivation process in situations where it cannot anticipate the need for such process because the actions complained about are random and unauthorized.” Brooks v. George County, Miss., 84 F.3d 157, 165 (5th Cir.1996). Woodard contends that the district court erred in applying the Parratt/Hud-son doctrine because she does not allege that Andrus’ actions are random and unauthorized. She also argues that even assuming arguendo that Andrus’ actions were random and unauthorized, the district court erred in holding that she had post-deprivation relief available in the form of a writ of mandamus. Woodard asserts that mandamus is not available under the Louisiana Code of Civil Procedure where, as here, injunctive and declaratory relief is sought. Furthermore, she contends that mandamus is an extraordinary remedy that is generally only available to enforce a duty that is strictly personal to the one seeking enforcement. Because the duty Woodard seeks to enforce is one owed to the general public, she argues she can not show that she has a special interest in having the law enforced, and thus, a mandamus would not be available to her. Finally," }, { "docid": "3905570", "title": "", "text": "refuses to provide due process.” Zinermon, 494 U.S. at 123, 110 S.Ct. at 983. More specifically, in the case of an employment termination case, “due process [does not] require the state to provide an impartial decisionmaker at the pre-termination hearing. The state- is obligated only to make available ‘the means by which [the employee] can receive redress for the deprivations.’ ” Schaper v. City of Huntsville, 813 F.2d 709, 715-16 (5th Cir.1987) (quoting Parrott v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981)) (footnote omitted). In Parrott (and its progeny, Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)), the Supreme Court held that due process did not require pre-deprivation hearings where the holding of such a hearing would be impracticable, that is, where the deprivation is the result of either a negligent or an intentional deprivation of property. All that due process requires, the Court said, is a post-deprivation: “means of redress for property deprivations- satisfying] the requirements of procedural due process.” Parratt, 451 U.S. at 537, 101 S.Ct. at 1914; accord Hudson, 468 U.S. at 533, 104 S.Ct. at 3204. The precedent established by Pa?-ratt is unambiguous: even if McKinney suffered a procedural deprivation at the hands of a biased Board at his termination hearing, he has not suffered a violation of his procedural due process rights unless and until the State of Florida refuses to make available a means to remedy the deprivation. As any bias on the part of the Board was not sanctioned by the state and was the product of the intentional acts of the commissioners, under Par-ratt, only the state's refusal to provide a means to correct any error resulting from the bias would engender a procedural due process violation. It is to an examination of this state remedy-and a determination of whether it satisfies due process-that we now turn. 3- In this case, McKinney failed to take advantage of any state remedies, opting instead to pursue his claim in federal court. In his en banc brief, McKinney asserts that the state remedy-review by" }, { "docid": "14023052", "title": "", "text": "not decide whether the Parratt-Hudson doctrine would bar this aspect of O’Neill’s claim at the present stage or whether further fact-finding and analysis would be necessary to decide whether Parratt-Hudson applies. Affirmed. . Her civil rights action was brought against DSS, Linda Carlisle, then DSS Commissioner, Charles Baker, then Commissioner of Administration and Finance of the Commonwealth of Massachusetts, and Ruth McDermott, the Area Director of the DSS’s Chelsea office. The three individuals, Carlisle, Baker, and McDermott, were sued in both their individual and official capacities. . We understand O'Neill, in light of the undisputed fact that she received the suspension letters that specifically warned of the possibility of termination of employment, to be saying that she did not receive prior explicit notice that the purpose of the December 23 meeting was to terminate her employment. . This is extremely doubtful on a procedural due process claim. See Carey v. Piphus, 435 U.S. 247, 259-64, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). It would make little sense to order an employee reinstated to a position-from which it has been finally determined, in full post-termination proceedings, that she had been validly terminated-because of a flaw in the pre-termination notice and opportunity to be heard. . On January 8, 1998, the district court entered summary judgment on all claims against former Commissioner Baker. The plaintiff does not challenge that dismissal on appeal. . O'Neill has made no claim that the DSS should not be considered an arm of the state for Eleventh Amendment purposes. Therefore, we assume that it is. See Fred v. Roque, 916 F.2d 37, 39 n. 4 (1st Cir.1990). Additionally, O'Neill has offered no evidence that the state has waived its immunity. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, -, 119 S.Ct. 2219, 2226, 144 L.Ed.2d 605 (1999) (setting forth the requirements for finding waiver). . This is not an instance where the need for a pre-deprivation hearing is excused by \"the necessity of quick action by the State.” Par- ratt v. Taylor, 451 U.S. 527, 539, 101 S.Ct. 1908, 68 L.Ed.2d" }, { "docid": "1026054", "title": "", "text": "show the requisite state action necessary to state a claim for a due process violation. As to Woodard’s access to courts claim, the district court held that she failed to state a claim upon which relief could be granted because she did not contend that her ability to sue had been either blocked or delayed by Andrus. Finally, the district court dismissed Woodard’s equal protection claim because she did not allege that Andrus selectively enforced § 841 based upon any impermissible ground. Woodard filed a timely notice of appeal. II Dismissals under Rule 12(b)(6) are reviewed de novo. Hamilton v. United Healthcare of Louisiana, Inc., 310 F.3d 385, 388 (5th Cir.2002). In doing so, well-pleaded factual allegations in the complaint are accepted as true. Herrmann Holdings Ltd. v. Lucent Technologies Inc., 302 F.3d 552, 557 (5th Cir.2002) (quotations and citations omitted). The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff. Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir.1998). The dismissal will be upheld 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.” Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). III The district court dismissed Woodard’s due process claim based upon the doctrine articulated in Hudson v. Palmer, sit,pra. The Parratt/Hudson doctrine, as it is known, dictates that a state actor’s random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991) (en banc) (discussing Parratt v. Taylor, 451 U.S. 527, 542-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517, 530-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). “The doctrine is meant to protect the state from liability for failing to provide pre-deprivation process in situations where it cannot anticipate" }, { "docid": "18990982", "title": "", "text": "113, 127-30, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). In applying Zinermon, this circuit has held that a § 1983 action for deprivation of procedural due process is barred if a state has adequate post-deprivation remedies and the following conditions exist: (1) the deprivation must truly have been unpredictable or unforeseeable; (2) pre-deprivation process would have been impossible or impotent to counter the state actors’ particular conduct; and (3) the conduct must have been unauthorized in the sense that it was not within the officials’ express or implied authority. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.1991) (en banc). Otherwise, a § 1983 action for deprivation of procedural due process is not barred under the Parratt/Hudson doctrine. Here, the deprivation was both predictable and foreseeable. In fact, not only was it possible for Dr. Bailey to provide a pre-deprivation remedy in this case, he attempted to do so by sending Dr. Stotter a letter giving him an opportunity to remove any personal items from his lab. Moreover, UTSA and Dr. Bailey specifically authorized the deprivation. See, e.g., Allen v. Thomas, 388 F.3d 147, 149 (5th Cir.2004) (holding that because personal property was confiscated under authority of prison administrative directive, it was not random or unauthorized); Brooks v. George County, 84 F.3d 157, 165 (5th Cir.1996) (holding that actions according to official policy cannot be considered random or unauthorized). In short, because the alleged deprivation was authorized, the deprivation was foreseeable, Dr. Bailey had an opportunity to provide a pre-deprivation remedy, and he failed to give Dr. Stotter sufficient time to collect his personal items prior to allegedly discarding them, the district court erred in dismissing Dr. Stotter’s procedural due process claim on the basis of the availability of an adequate post-deprivation remedy. The second reason the district court dismissed Dr. Stotter’s procedural due process claim was because, according to the district court, Dr. Stotter failed to identify any particular item that was removed from his lab in which he had a sufficient property interest. We disagree. Property interests protected by the procedural due process clause include, at the very" }, { "docid": "22151776", "title": "", "text": "and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). In some instances, it also has been held that the availability under state law of a post-deprivation hearing or tort remedies completely will satisfy due process and bar a section 1983 claim. See, e.g., Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984) (state tort remedy adequate protection for alleged intentional destruction of prisoner’s property); Parratt v. Taylor, 451 U.S. 527, 541-44, 101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420 (1981) (state tort action sufficient protection for alleged negligent destruction of prisoner’s property), overruled in part, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986) (mere negligence on part of state official cannot work a constitutional deprivation of property); see also Ramsey v. Board of Educ. of Whitley County, Kentucky, 844 F.2d 1268, 1273 (6th Cir.1988) (state contract action adequate remedy for denial of accumulated sick days); Costello, 811 F.2d at 784 (grievance procedure was sufficient remedy for retired police officers’ claims of denial of increase in pension benefits). Recently, in Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), the Supreme Court, seeking to clarify its earlier decisions, identified the circumstances under which the availability of post-deprivation state remedies will bar a section 1983 claim. The Zinermon Court concluded that its earlier decisions in Par-ratt and Hudson stand for the principle that in some instances a deprivation of property may be so random and unpredictable that the provision of pre-deprivation proceedings is impossible. Both Hudson and Parratt involved claims by prisoners who alleged that prison guards had destroyed their property. In those cases, the Court held that the state could not forsee when the deprivation would occur and its ability to provide pre-deprivation process was non-existent. The Zinermon Court contrasted these prior cases with a situation in which the alleged deprivation was predictable, pre-deprivation procedures" }, { "docid": "9182026", "title": "", "text": "facts alleged failed to state a plausible claim that the defendants deprived Tucker of due process. Rather than amend her complaint yet again, Tucker chose to pursue this appeal. II. ANALYSIS We review de novo a district court's grant of a Rule 12(b)(6) motion to dismiss, accepting as true all well-pleaded facts and drawing all reasonable inferences in the plaintiff's favor. Forgue v. City of Chicago , 873 F.3d 962, 966 (7th Cir. 2017). Section 1983 claims are subject to the same plausibility pleading standard as other civil causes of action. See, e.g., McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011). The two elements of a procedural due process claim are \"(1) deprivation of a protected interest and (2) insufficient procedural protections surrounding that deprivation.\" Michalowicz v. Vill. of Bedford Park , 528 F.3d 530, 534 (7th Cir. 2008) (citation omitted). Here, the parties agree the fine deprived Tucker of a protected property interest. At issue is whether the facts she alleged plausibly demonstrate constitutionally deficient procedural protections. A. Availability of Post-Deprivation Relief in State Court Before reaching Tucker's main contentions, we reject her argument that the district court erred in considering her appeal rights under Illinois law. Relying on Zinermon v. Burch , 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), and Parratt v. Taylor , 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Tucker contends post-deprivation remedies may be considered only where the deprivation is the result of \"random and unauthorized\" acts by individual government agents. Tucker's argument mischaracterizes the rule laid down in Parratt and distinguished in Zinermon . In Parratt , the Supreme Court held the government did not offend due process by failing to provide an inmate with a hearing before prison officials inadvertently lost his property in the mail. Such a hearing would have been impossible to schedule given it was the result of a \"random and unauthorized act.\" 451 U.S. at 541-44, 101 S.Ct. 1908. Parratt explained that the general preference for a pre-deprivation hearing does not control where the government is unable to" }, { "docid": "12844842", "title": "", "text": "(1990). Where a deprivation at the hands of a government actor is “random and unauthorized,” hence rendering it impossible for the government to provide a pre-deprivation hearing, due process requires only a post-deprivation proceeding. See Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (loss of a prisoner’s mail-order product was a negligent, random, and unauthorized act by a prison employee, and hence a post-deprivation tort suit was sufficient to satisfy due process); see also Hudson v. Palmer, 468 U.S. 517, 534, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (only post-deprivation remedy is required following intentional destruction of an inmate’s personal property by a prison guard, because the state was not “in a position to provide for predeprivation process”). . We have determined, however, that the “random and unauthorized” exception to the requirement of a pre-deprivation hearing does not apply where the government actor in question is a high-ranking official with “final authority over significant matters.” Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.1983); see also Dwyer v. Regan, 777 F.2d 825, 832 (2d Cir.1985). In Dwyer, we explicitly distinguished Hudson and Parratt as involving “lower-echelon state employees,” Dwyer, 777 F.2d at 832, and in Burtnieks reasoned that categorizing acts of high-level officials as “random and unauthorized” makes little sense because the state acts through its high-level officials, see Burtnieks, 716 F.2d at 988. Relying on Dwyer and Bwrtnieks, DiBla-sio argues that the district court erred in finding that the “random and unauthorized” exception applied to Novello’s various purportedly defamatory statements. We agree. The commissioner of the N.Y. D.O.H. is a high-level state official with final authority on many department matters, including the content of press releases and her own statements in press conferences. Moreover, pursuant to § 230(12)(a), summary suspensions are public upon issuance. Under such circumstances, it would make little sense to characterize her public statements as “random and unauthorized.” Defendants argue that, to the extent that Novello’s statements were false and malicious, she clearly exceeded her authority and, at least to that extent, her statements were random and" }, { "docid": "13261621", "title": "", "text": "procedure.” Parrott, 451 U.S. at 541, 101 S.Ct. 1908. In that circumstance, because “the State cannot predict precisely when the loss will occur,” id., “the State cannot be required constitutionally to do the impossible by providing predeprivation process.” Zinermon, 494 U.S. at 129, 110 S.Ct. 975. This case is not governed by Parrott, but by the ordinary rule that “the Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” Id. at 127, 110 S.Ct. 975. According to Houston’s complaint, the District Attorney refused to return Houston’s firearm after dropping charges pursuant to an “established state procedure.” Parrott, 451 U.S. at 541, 101 S.Ct. 1908. Thus, the deprivation was not “a random and unauthorized act by a state employee” that would make it impossible for the state to predict the deprivation and afford predeprivation process. Id. This conclusion also follows from this circuit’s case law applying the Parrott rule. In Caine v. Hardy, the en banc court held that Parratt bars a § 1988 procedural due process claim only if there are adequate state post-deprivation procedures and each of the following conditions is present: (1) “the deprivation must truly have been unpredictable or unforeseeable”; (2) “pre-deprivation procedures must have been impotent to counter the state actors’ particular conduct”; and (3) “the conduct must have been ‘unauthorized’ in the sense that it was not within the officials’ express or implied authority.” 943 F.2d 1406, 1413 (5th Cir. 1991) (en banc). Not one of these conditions is met here. Even if § 15:41 is construed to be a predeprivation remedy, I still would hold, under a straightforward application of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), that the district court erred in dismissing Houston’s procedural due process claim. In my judgment, the district court undervalued the private interest and overvalued the government’s interest. The district court downplayed the weight of the private interest by reasoning that gun possession “is not a basic necessity of life, such as [welfare benefits] or employment.” But this analysis fails to account for the" }, { "docid": "20694548", "title": "", "text": "relevant part) (agreeing that Parratt did not bar the plaintiffs due process claim based on manufactured evidence and perjured testimony and citing opinions from several circuits that allowed such claims to go forward). No court has accepted the defendants’ argument that the Parratt analysis applies when the plaintiff is alleging that wrongful conduct corrupted fair fact-finding in the criminal justice system. We will not be the first. We will, however, explain further our reasoning for rejecting Parratt as an obstacle to Armstrong’s claims. When Parratt and its progeny are understood properly, it becomes clear that Armstrong can proceed on his claim because the defendants’ actions were not “random and unauthorized” within the meaning of Par-ratt and that state tort law does not provide an adequate remedy. 2. The Rationale for and Scope of Par-ratt and Hudson We start with the rationale for Parratt and Hudson, as explained in those opinions and later cases. In Parratt, prison staff negligently lost some personal property (“hobby materials”) that a prisoner had purchased. The prisoner sued under 42 U.S.C. § 1983 for deprivation of his property without due process of law, arguing that he was entitled to a hearing before a state actor permanently deprived him of his’ property. In a pragmatic decision, the Supreme Court held that the prisoner had failed to state a claim for relief under the Due Process Clause of the Fourteenth Amendment. Parratt, 451 U.S. at 539-40, 101 S.Ct. 1908. A pre-deprivation hearing was not possible, id. at 541, 101 S.Ct. 1908, so a meaningful post-deprivation tort remedy provided all the process that could be expected and thus all the process that was due. Id. at 543, 101 S.Ct. 1908. Also important for present purposes, “the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure.” Id. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court extended the reasoning of Parratt from a claim based on negligence to a" }, { "docid": "5796599", "title": "", "text": "actions of its policy maker, Sheriff Howell, in depriving Brooks of his property without due process. Turner v. Upton County, 915 F.2d 133, 137 (5th Cir.1990), cert. denied 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). d. Application of the Parratt/Hudson Doctrine Appellants urge in their defense that no due process violation has been shown because of the Parratt/Hudson doctrine. Under their version of this doctrine, the mere presence of post-deprivation remedies prevents a due process claim. Such interpretation is blatantly misleading and is not the law. The Parratt/Hudson doctrine dictates that a state actor’s random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991) (en banc) (discussing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). The Parratt/Hudson doctrine is inapplicable to the facts as shown. The doctrine is meant to protect the state from liability for failing to provide predeprivation process in situations where it cannot anticipate the need for such process (when actions are random and unauthorized). Zinermon v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 984-87, 108 L.Ed.2d 100 (1990). Where a municipal officer operates pursuant to a local custom or procedure, the Parratt/Hudson doctrine is inapposite: actions in accordance with an “official policy” under Monell can hardly be labeled “random and unauthorized.” Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 380 (7th Cir.1988). As this Court noted, where employees are acting in accord with customary procedures, the “random and unauthorized” element required for the application of the Parratt/Hudson doctrine is simply not met. Alexander v. Ieyoub, 62 F.3d 709, 713 (5th Cir.1995). Despite Appellants’ urging, we see no application of the Parratt/Hudson doctrine to the facts as presented. Accordingly, we affirm the judgment holding Sheriff Howell liable in his individual and official capacities on this Fourteenth Amendment claim relating to Brooks’s work on pub- lie property." }, { "docid": "22983164", "title": "", "text": "— Dallas 1994, no writ). Bayless offers no factual support for her conclusory allegation that she was acting as Raborn’s agent, rather than in her capacity as the judgment-creditors’ attorney. Even assuming that Bayless was Raborn’s agent, the Davises allege that Bayless seized wom-ens underwear, which would clearly have exceeded the scope of the receiver’s authority to take possession of Dr. Johnson’s property. Because the pleadings indicate that Bayless may have exceeded the authority afforded to the receiver, the district court’s dismissal of the Davises’ damage claims against Bayless and Bayless & Stokes, if not supported by any other ground, must be reversed. PARRATT-HUDSON DOCTRINE: ADEQUATE STATE LAW REMEDIES The district court also relied upon the availability of state law remedies in its decision to dismiss the complaint. “Under the Parratt/Hudson doctrine, a state actor’s random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy.” Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir.1995); see Hudson v. Palmer, 468 U.S. 517, 529-37, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 535-45, 101 S.Ct. 1908, 1913-17, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The doctrine rests on the premise that because the state is unable to predict random and unauthorized conduct, pre-deprivation remedies are infeasible. See Zinermon v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 985-86, 108 L.Ed.2d 100 (1990). In such a case, the provision of adequate state law post-deprivation remedies provides all the due process that is required. Id. Conduct is not random and unauthorized when the state has expressly delegated the power and authority to effect the very deprivation complained about. See Zinermon, 494 U.S. at 136, 110 S.Ct. at 989. Thus, at least as to the search of the storage facility and the order authorizing search of safe deposit boxes, it cannot be said that the defendants’ conduct was random or unauthorized and pre-deprivation provision of notice and hearing" }, { "docid": "7599436", "title": "", "text": "(1961). The second element was also met: Plaintiff’s tenured position was a fundamental property right within the meaning of the Fourteenth Amendment, see Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), and the alleged loss of this position amounted to a deprivation. The crucial inquiry, therefore, is whether that deprivation occurred without due process of law or, more specifically, whether plaintiff was entitled to a pre-deprivation hearing. The district court and defendants rely heavily upon Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt, the Supreme Court rejected the proposition that a state must, in all circum stances, provide a hearing prior to the initial deprivation of property. The Court observed that in most cases where due process requires a pre-deprivation hearing, the deprivation of property results from some established state procedure and “process” can be offered before any actual deprivation takes place. Id. at 537, 101 S.Ct. at 1914. Parratt involved the allegedly negligent mishandling of a prisoner’s package by a prison guard. The prisoner sought to invoke Section 1983 by claiming that the post-deprivation remedy of a tort action against the guard in state court was insufficient and that due process mandated a pre-deprivation hearing. Reasoning that the loss of property resulted from a random and unauthorized act of a state employee and that the state (i.e., presumably those officials in charge of instituting hearings) can hardly predict when such negligent acts will occur, the Court in Parratt ruled that it would have been virtually impossible to provide the prisoner with a meaningful pre-deprivation hearing. Thus, the touchstone in Parratt was the impracticability of holding a hearing prior to the claimed deprivation. Id. at 539-41, 101 S.Ct. at 1914-16. Once the Court found impracticability, its remaining task was to determine whether the post-deprivation remedy of a tort action provided the plaintiff with a meaningful opportunity to be heard. In fact, a tort action would have fully compensated the prisoner for his loss and it was therefore deemed sufficient. Id. at 543-44, 101 S.Ct. at 1916-17." }, { "docid": "8259922", "title": "", "text": "3-4.) We agree that this action must be dismissed, but not for this reason. Defendants cite several cases dismissing section 1983 claims because the plaintiffs had adequate remedy in a state post-termination proceeding. (Id. (citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393(1984); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).) However, these cases dealt with situations in which a property interest was terminated by the arbitrary or unanticipated conduct of a government actor. See Hudson, 468 U.S. at 533, 104 S.Ct.3194 (stating that unauthorized negligent and intentional deprivations of property do not violate the Due Process Clause if pre- deprivation process is impracticable and adequate state post-deprivation remedies are available); Parratt, 451 U.S. at 543, 101 S.Ct. 1908 (finding that inmate whose mail was lost and who brought suit under § 1983 had not alleged a due process violation because his property deprivation did not occur as a result of some established state procedure but because of the unauthorized failure of State agents to follow the established state procedure). In cases where a property interest is terminated in such a way, courts have determined that it is not appropriate to hold the government liable for the lack of a pre-termination procedure because the government could not anticipate the need for one. See Parratt, 451 U.S. at 540—41, 101 S.Ct. 1908 (stating that although the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner, that does not always require a pre-termination hearing if it would be impracticable and at some time a full and meaningful hearing will be available); Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.1984) (determining that due process was not violated when plaintiff was coerced to resign because it was “hard to visualize what sort of prior hearing the Constitution would require the employer to conduct” if the only dispute — whether the resignation was voluntary or involuntary — cannot be determined in advance and the state provides a meaningful post-deprivation hearing). In this instance however," } ]

[ { "docid": "12191593", "title": "", "text": "Fourth Circuit that “[n]either argument is convincing.” Id. Individual circuit panels finding otherwise rely on their own precedent and are at odds with the reasoning and conclusion of our binding precedent, Pawlak. See, e.g., In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (also doubting whether Johnson applies to the Guidelines at all, in part based on the Guidelines’ advisory nature); In re Arnick, 826 F.3d 787, No. 16-10328, 2016 WL 3383487 (5th Cir. June 17, 2016) (same); Donnell v. United States, 826 F.3d 1014, No. 15-2581, 2016 WL 3383831 (8th Cir. June 20, 2016). As Hubbard accurately reasons, “Welch declared unequivocally that Johnson was ‘a substantive decision and so has retroactive effect under Teague in cases on collateral review.’” Hubbard, 2016 WL 3181417, at *6 (quoting Welch, 136 S.Ct. at 1265). Both here and in Hubbard, the Government cites no support for the proposition that the same rule may be substantive and retroactive in one context but procedural and not retroactive in another. Id. Moreover, Hubbard explains that retroactive rules “must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings.” Id. (quoting Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008)). The Supreme Court’s rationale in Welch for finding Johnson retroactive applies equally to the Guidelines. Johnson held a statutory provision of the ACCA unconstitutional, and now that provision may not be used to enhance a sentence. Striking the Guidelines’ residual clause, just like striking the ACCA’s residual clause, would “change[] the substantive reach” of the Guidelines by “altering the range of conduct or the class of persons that the [Guidelines] punish[ ].” Welch, 136 S.Ct. at 1265 (quotation marks omitted) (quoting Schriro, 542 U.S. at 353, 124 S.Ct. 2519). As applied to the Guidelines, Johnson substantively changes the conduct by which federal courts may enhance the sentence of a defendant. “[S]ome crimes will no longer fit the Sentencing Guidelines’ definition of a crime of violence,” explains Hubbard, “and will therefore be incapable of resulting in a career-offender sentencing enhancement.” 2016 WL 3181417, at *7." } ]

[ { "docid": "18084717", "title": "", "text": "“violent felony” under the identically phrased residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). 721 F.3d 435, 437 (7th Cir. 2013). In the first go-round on this appeal, Rollins argued that because the two residual clauses are the same, Miller controls, notwithstanding application note 1 to § 4B1.2, which specifically lists possession of a sawed-off shotgun as a predicate crime of violence. A panel of the court rejected this argument based on United States v. Raupp, which holds that that the application note’s list of qualifying crimes is a valid interpretation of the guideline’s residual clause. 677 F.3d 756, 758-60 (7th Cir. 2012). In the meantime, the government changed its position on two key questions lurking in the background: (1) Does the Supreme Court’s holding in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), apply to the residual clause in the career-offender guideline; and (2) should United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), be overruled? Johnson invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S.Ct. at 2563. Although Johnson logically applies to the mirror-image residual clause in § 4B1.2(a)(2), our decision in Tichenor categorically forecloses vagueness challenges to the Guidelines. 683 F.3d at 364-65. The government previously invoked Tichenor, and Rollins did not ask the court to revisit and overrule it. After the panel issued its opinion, however, the government reversed course and now argues that Tichenor should be overruled and that Johnson's constitutional holding applies to the residual clause in § 4B1.2(a)(2). In light of the government’s concession, the panel vacated its opinion and granted rehearing. In a separate decision also issued today, the en banc court overrules Tichenor and holds that under Johnson, the residual clause in the career-offender guideline is unconstitutionally vague. United States v. Hurlburt, Nos. 14-3611 & 15-1686, 835 F.3d 715, 2016 WL 4506717 (7th Cir. Aug. 29, 2016). That decision undermines Raupp’s rationale and is decisive here. Application note 1 has no legal force independent of the guideline itself; the note’s list of qualifying crimes is valid (or not)" }, { "docid": "661560", "title": "", "text": "that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2555-57, 2563, 192 L.Ed.2d 569 (2015). Arnick seeks application of Johnson to the identically worded residual clause of Section 4B1.2(a)(2). Johnson announced a new rule of constitutional law that has been made retroactive by the Supreme Court to cases on collateral review. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1264-65, 194 L.Ed.2d 387 (2016). However, Johnson did not address Section 4B1.2(a)(2) of the Guidelines. See Johnson, 135 S.Ct. at 2555-57. Nor has the Supreme Court held that a Guidelines enhancement that increases the Guidelines range implicates the same due process concerns as a statute that increases a statutory penalty. See United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); see also United States v. Wilson, 622 Fed.Appx. 393, 405 n. 51 (5th Cir. 2015), cert. denied, —— U.S. ——, 136 S.Ct. 992, 194 L.Ed.2d 13 (2016). We note that even in direct appeals, rather than collateral review as presented here, federal courts of appeals disagree on whether Johnson applies to the Guidelines, demonstrating that the Supreme Court has not decided the question. Compare Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015), and United States v. Maldonado, 636 Fed.Appx. 807, 810-11, 2016 WL 229833, at *3 (2d Cir. Jan. 20, 2016), and United States v. Goodwin, 625 Fed.Appx. 840, 843-44 (10th Cir. 2015) (applying Johnson to Section 4B1.2(a)(2)), with United States v. Matchett, 802 F.3d 1185, 1194-95 (11th Cir. 2015) (Guidelines provisions are not subject to void-for-vagueness challenges). Further, even if Johnson does implicate Section 4B1.2(a)(2), the Supreme Court has not addressed whether this arguably new rule of criminal procedure applies retroactively to cases on collateral review. Arnick has therefore not shown that he is entitled to authorization to proceed based on Johnson. IT IS ORDERED that Arnick’s motion for authorization is DENIED. The Office of the Federal Public Defender’s motion on Arnick’s behalf for the appointment of a Federal Public Defender is also DENIED. The" }, { "docid": "14227680", "title": "", "text": "the application satisfies the stringent requirements of the filing of a second or successive petition,” leaving definitive disposition of that question to the district court (internal quotation marks omitted)). Encinias alleges that one or more of the predicate felony offenses relied on for designating him a career offender qualified for that purpose by virtue of the residual clause in the Guideline’s definition of “crime, of violence,” which encompasses crimes that “involve[] conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). He seeks to challenge his .sentence on the basis of a new rule of constitutional law established in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Supreme Court recently made Johnson’s holding retroactive to cases on collateral review in Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1265-66, 194 L.Ed.2d 387 (2016). Thus, Encinias is entitled to authorization for his challenge to the career-offender Guideline so long as it is properly deemed to be based on Johnson for purposes of § 2255(h)(2). In Johnson, the Court held that the identical residual clause in the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. Specifically, the Court concluded that the “residual clause ... invites arbitrary enforcement by judges”-and thus “[i]ncreasing a defendant’s sentence under the clause denies due -process of law,” Johnson, 135 S.Ct. at 2557. In United States v. Madrid, 805 F.3d 1204 (10th Cir.2015), a-direct criminal appeal,-we held that Johnson’s invalidation'of the unconstitutionally' vague residual clause in the ACCA led to the same result'for the career-offender Guideline: “The concerns ... that motivated the Court in Johnson lead us to conclude that the residual clause of the Guidelines is also unconstitutionally vague. If one iteration of the clause is unconstitutionally'vague, so too is the other.” Id. at 1210; see also In re Robinson, No. 16-11304-D, 822 F.3d 1196, 1198, 2016 WL 1583616, at *2 n. 2 (11th Cir. Apr. 19, 2016) (unpublished) (Martin, J., concurring) (noting every circuit except the Eleventh has held or assumed Johnson applies to the Guidelines)." }, { "docid": "9018356", "title": "", "text": "language of ACCA was unconstitutional, it should have surprised no one that our Court would begin to see challenges to sentences imposed under identical language in the U.S. Sentencing Guidelines. USSG § 4B1.2(a). Yet here again, where prisoners sought to challenge their sentences under this guideline, our Court denied them the chance to present their claims in District Court. In a direct appeal from a sentencing, with full adversarial testing, this Court said Johnson did not apply because the sentences were imposed under a Guideline system that was advisory. United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015) (\"The vagueness doctrine, which 'rest[s] on [a] lack of notice' ... does not apply to advisory guidelines.\"). This is how the process should work. But then another panel of this Court, faced with a prisoner's application to file a second or successive petition, denied Johnson relief even to those who had been sentenced under the mandatory Guidelines. See In re Griffin, 823 F.3d 1350, 1353-56 (11th Cir. 2016) (extending Matchett, 802 F.3d at 1193-96 (11th Cir. 2015) to sentences imposed under the mandatory Guidelines). During this time, many panels, including some I served on, chose to publish our rulings on these applications. See, e.g., In re Smith, 829 F.3d 1276 (11th Cir. 2016) ; In re Colon, 826 F.3d 1301 (11th Cir. 2016) ; Hires, 825 F.3d at 1297 ; Saint Fleur, 824 F.3d at 1337 ; In re Hines, 824 F.3d 1334 (11th Cir. 2016). Under Eleventh Circuit precedent, published rulings are binding on all future panels facing the same issue. United States v. St. Hubert, 883 F.3d 1319, 1328-29 (11th Cir. 2018) (holding published orders on applications to file second or successive habeas motions are binding on all future appellate panels). Some of these panel opinions were decided over dissent, \"which would ordinarily require oral argument under this circuit's rules.\" Williams, 898 F.3d at 1109 n.4 (citing 11th Cir. R. 34-3(b)(3) ) (Martin, J., specially concurring). In a short time span, our Court got thousands of authorization applications raising Johnson claims. But once any panel published a decision" }, { "docid": "17024841", "title": "", "text": "§ 4B 1.2(a) is unconstitutionally vague); United States v. Welch, 641 Fed.Appx. 37, 43 (2d Cir.2016) (summary order) (same). The Court of Appeals for the Seventh Circuit has also indicated in dictum that § 4B 1.2(a)(2) may be unconstitutionally vague. Ramirez v. United States, 799 F.3d 845, 856 (7th Cir.2015) (\"In Johnson v. United States, the Supreme Court held that the identically worded residual clause of the Armed Career Criminal Act is unconstitutionally vague. We have interpreted both residual clauses identically, and so we proceed on the assumption that the Supreme Court's reasoning applies to section 4B1.2 as well. This is a point, however, that neither side has briefed, and it may warrant attention on remand.” (citations omitted)). Finally, it is worth noting that the Court of Appeals for the Eighth Circuit has issued two divided panel opinions on this issue. In United States v. Taylor, 803 F.3d 931 (8th Cir.2015), the court vacated the defendant’s sentence and remanded for resen-tencing. The court acknowledged that although there was circuit precedent holding that the Guidelines were not susceptible to a vagueness attack, that holding was called into question by Johnson. The court left the question to be decided in the first instance by the district court. Id. at 933. However, a later panel of that court found that any such sentencing error was not “obvious” or \"plain” in light of the circuit precedent holding that advisory Guidelines could not be void for vagueness. See United States v. Ellis, 815 F.3d 419, 421 (8th Cir.2016). The United States Supreme Court has recently granted a petition for writ of certiorari on this question that has divided the courts of appeals. See United States v. Beckles, 616 Fed.Appx. 415 (11th Cir.2015), cert. granted, — U.S. -, 136 S.Ct. 2510, - L.Ed.2d -, 2016 WL 1029080 (2016). . The Sentencing Commission has also recognized the connection of the Guidelines residual clause to that of ACCA. The Sentencing Commission has indicated that the \"crime of violence” definition in § 4B1.2 is \"derived from 18 U.S.C. § 924(e).” See _U.S.S.G. app. C, amend. 268 (eff. Nov. 1," }, { "docid": "1318538", "title": "", "text": "COLLOTON, Circuit Judge. Raphael Donnell moves for authorization to file a second or successive motion under 28 U.S.C. § 2255(h). He seeks to challenge a sentence that was imposed in 2008 after the district court applied the career-offender sentencing guideline, USSG § 4B1.1, in calculating Donnell’s advisory sentencing range. Citing Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Donnell seeks to argue that the residual clause of USSG § 4B1.2(a)(2) is unconstitutionally vague and that his sentence should be vacated. This court may authorize a second or successive motion under § 2255 if the movant makes a “prima facie showing” that the motion “contain[s] ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §§ 2255(h)(2), 2244(b)(3)(C); see Kamil Johnson v. United States, 720 F.3d 720, 720 (8th Cir. 2013) (per curiam). A prima facie showing is “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Kamil Johnson, 720 F.3d at 720 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)). The Supreme Court in Johnson announced a new rule of constitutional law. The Court held that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague and that increasing a defendant’s sentence under that clause violated the constitutional right to due process. In Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Court made the new rule of Johnson retroactive to cases on collateral review. Donnell seeks to extend Johnson and Welch by urging that the residual clause of USSG § 4B1.2(a)(2) is also unconstitutionally vague. He further contends that the constitutional rule that he proposes for the sentencing guidelines should be applied retroactively to cases on collateral review. Whether an advisory sentencing guideline is susceptible to a vagueness challenge is an open question in this circuit. See United States v. Ellis, 815 F.3d 419, 421 (8th Cir. 2016). The issue is reasonably debatable, and the answer is not dictated by Johnson. Id." }, { "docid": "10085154", "title": "", "text": "the residual clause in § 4B1.2(a)(l) is unconstitutionally vague. With this holding, we join a growing consensus among the circuits. See Pawlak, 822 F.3d at 907 (applying Johnson to the residual clause in § 4B1.2(a)(2) and finding it unconstitutionally vague); United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (same); United States v. Taylor, 803 F.3d 931, 933 (8th Cir. 2015) (holding that Johnson applies to the career-offender guideline but remanding for determination of the vagueness question). Several other circuits have accepted the government’s concession without further discussion or assumed without deciding that Johnson applies to the career-offender guideline. See United States v. Soto-Rivera, 811 F.3d 53, 59 (1st Cir. 2016) (accepting the government’s concession that the § 4B1.2(a)(2) residual clause is unconstitutionally vague without deciding the issue); United States v. Maldonado, 636 Fed.Appx. 807, 810 & n.1 (2d. Cir. 2016) (assuming without deciding that “the due process concerns that led Johnson to invalidate the ACCA’s residual clause as void for vagueness are equally applicable to the Sentencing Guidelines”); United States v. Townsend, 638 Fed.Appx. 172, 178 & n.14 (3d. Cir. 2015) (invalidating the Guidelines’ residual clause after Johnson without extended discussion of whether the vagueness doctrine applies). One circuit has declined to apply Johnson to the Guidelines. See United States v. Matchett, 802 F.3d 1185, 1194-95 (11th Cir. 2015). C. Remedy For both Hurlburt and Gillespie, the Johnson error produced a Guidelines range that was too high. That’s ordinarily enough to satisfy the prejudice requirement of plain-error review. To establish that the error affected their substantial rights, the defendants must show “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez, 136 S.Ct. at 1343, (internal quotation marks omitted). “When a defendant is sentenced under an incorrect Guidelines range[,] ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Id. at 1345 (emphasis added). This is because the Guidelines “inform and instruct the district court’s determination of an appropriate sentence. In the usual case, then, the" }, { "docid": "16143183", "title": "", "text": "held in Welch v. United States that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). In 2015, this Court issued our decision in United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), and held that the vagueness doctrine, upon which the Supreme Court invalidated the ACCA’s residual clause in Johnson, did not similarly apply to the Sentencing Guidelines. We explained that the vagueness doctrine applies both to statutes that define elements of crimes and to statutes fixing sentences, but noted that “the advisory guidelines do neither.” Id. at 1194. We then emphasized that, because the pre-Guidelines sentencing scheme that gave plenary discretion to sentencing judges did not violate the notice requirement of the Due Process Clause, advisory guidelines that merely “inform a sentencing judge’s discretion also cannot violate the notice requirement.” Id. at 1194-95. Finally, we explicitly rejected Matchett’s policy-based argument that allowing the identically worded residual clause in § 4B1.2(a) to stand would upend the sentencing process by forcing sentencing courts to apply a clause that Johnson determined to lack precise meaning. Id. at 1195. We explained that Although Johnson abrogated the previous decisions of the Supreme Court interpreting the residual clause of the Armed Career Criminal Act, sentencing courts interpreting the residual clause of the guidelines must still adhere to the reasoning of cases interpreting the nearly identical language in the Act. [Match-ett’s] policy concern is properly addressed to the United States Sentencing Commission.... Id. at 1195-96. Before analyzing Griffin’s claims, we point out that an allegation by a petitioner that meets § 2255(h)’s requirements in the abstract only “represent[s] the minimum showing” necessary to file a successive § 2255 motion because, under § 2244(b)(3)(C), the applicant also must make “a prima, facie showing that the application satisfies the requirements of this subsection.” In re Holladay, 331 F.3d 1169, 1173, 1177 (11th Cir. 2003) (quotation marks omitted) (granting a state death-row inmate’s successive application because he had proffered detailed evidence, in satisfaction of § 2244(b)(3)(C), that" }, { "docid": "10085137", "title": "", "text": "not yet decided when the defendants were sentenced, but plain- error review asks whether the error is “plain” at the time of appellate review. Id. at 1130. The defendants maintain that the Johnson error is plain: The two residual clauses are identical, and because the ACCA’s residual clause is unconstitutionally vague, it necessarily follows that the residual clause in § 4B1.2(a)(2) is also unconstitutional. The logic is compelling, but our decision in Tichenor stands in the way. Tichenor held that the Guidelines cannot be challenged on vagueness grounds. 683 F.3d at 364-65. The defendants maintain that Tichenor has been fatally undermined by the Supreme Court’s decisions in Johnson and Peugh. The government agrees, so the parties join forces in asking us to overrule Tichenor, apply Johnson, and invalidate the residual clause in § 4B 1.2(a)(2) as unconstitutionally vague. Of course the parties’ agreement doesn’t relieve us of our obligation to resolve the question ourselves. Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Before proceeding, however, we pause to note two important recent developments. First, the Sentencing Commission has amended the Guidelines to delete § 4B1.2(a)(2)’s residual clause in light of Johnson; the amendment became effective August 1, 2016. 81 Fed. Reg. 4741, 4742 (2016). Second, the Supreme Court has granted certiorari in a case on collateral review to address the precise question presented here: whether Johnson’s holding applies to the residual clause in § 4B1.2(a)(2). Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016)). Beckles will be heard in the Court’s upcoming term and raises additional issues unique to its facts and procedural posture. The Court’s decision is many months away, so we think it best not to hold these cases for Beckles. A. Johnson and § 4B1.2(a)(2)’s Residual Clause The Due Process Clause prohibits the government from depriving a person of life, liberty, or property “under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that" }, { "docid": "661561", "title": "", "text": "rather than collateral review as presented here, federal courts of appeals disagree on whether Johnson applies to the Guidelines, demonstrating that the Supreme Court has not decided the question. Compare Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015), and United States v. Maldonado, 636 Fed.Appx. 807, 810-11, 2016 WL 229833, at *3 (2d Cir. Jan. 20, 2016), and United States v. Goodwin, 625 Fed.Appx. 840, 843-44 (10th Cir. 2015) (applying Johnson to Section 4B1.2(a)(2)), with United States v. Matchett, 802 F.3d 1185, 1194-95 (11th Cir. 2015) (Guidelines provisions are not subject to void-for-vagueness challenges). Further, even if Johnson does implicate Section 4B1.2(a)(2), the Supreme Court has not addressed whether this arguably new rule of criminal procedure applies retroactively to cases on collateral review. Arnick has therefore not shown that he is entitled to authorization to proceed based on Johnson. IT IS ORDERED that Arnick’s motion for authorization is DENIED. The Office of the Federal Public Defender’s motion on Arnick’s behalf for the appointment of a Federal Public Defender is also DENIED. The opinions in this case have been circulated to all active judges on the court. The following members of the court agree that successive 28 U.S.C. § 2255 motions seeking relief under Johnson from the application of U.S.S.G. § 4B 1.2(a)(2) should be denied: Judges Davis, Jones, Smith, Clement, Owen, Southwick, Haynes, Higginson, and Costa. JENNIFER WALKER ELROD, Circuit Judge, dissenting. Dequintan Arnick seeks our permission to file a successive motion under 28 U.S.C. § 2255(h), in which he would argue that his sentence must be vacated in light of the Supreme Court’s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson held that the Armed Career Criminal Act’s (ACCA) residual clause is unconstitutionally vague, and Arnick would ask the district court to extend Johnson’s holding to the identically worded provision of the Sentencing Guidelines that was used to determine his sentence. See U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S. Sentencing Comm’n 2010). Because I would authorize this successive § 2255 motion to proceed, I respectfully dissent. Congress" }, { "docid": "661565", "title": "", "text": "non-foreclosed extensions of Johnson, and all three have authorized the motions to proceed. See In re Hubbard, No. 15-276, 825 F.3d 225, 231, 2016 WL 3181417, at *4 (4th Cir. June 8, 2016) (authorizing successive § 2255 challenge to 18 U.S.C. § 16(b), as incorporated into the Sentencing Guidelines, “because it is for the district court to determine whether the new rule [announced in Johnson] extends to the movant’s case, not for this court in this proceeding”); In re Pinder, No. 16-12084-J, 824 F.3d 977, 979, 2016 WL 3081954, at *2 (11th Cir. June 1, 2016) (authorizing successive § 2255 challenge to 18 U.S.C. § 924(c)(3)(B) because “the law is unsettled on whether the rule announced in Johnson invalidates [the movant’s] sentence”); In re Encimas, No. 16-8038, 821 F.3d 1224, 1226, 2016 WL 1719323, at *2 (10th Cir. Apr. 29, 2016) (holding that challenge to U.S.S.G. § 4B1.2(a)(2) was “sufficiently based on Johnson to permit authorization under § 2255(h)(2)”). In reaching the contrary conclusion, the majority opinion hinges on two inapposite propositions: (1) the Supreme Court has not decided whether the rule of Johnson applies to section 4B1.2(a)(2) of the Guidelines; and (2) even if Johnson did hold by implication that section 4B 1.2(a)(2) is unconstitutionally vague, the Supreme Court has not made that rule retroactive to cases on collateral review. These points miss the mark because the statute does not require that the movant’s winning rule — ie. “section 4B1.2(a)(2) of the Guidelines is imper-missibly vague” — must be “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” It requires only that the movant rely on such a rule, and the rule of Johnson fits the bill. The standard applied by the majority opinion is inconsistent with our cases evaluating successive § 2254 and § 2255 motions that invoke multiple Supreme Court cases in support of a single claim. In those circumstances, we have inquired separately whether each invoked case announced a new constitutional rule that the Supreme Court had made retroactive. See In re Jackson, 776 F.3d 292, 294-96 (5th" }, { "docid": "16143182", "title": "", "text": "prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4Bl.l(a). The Guidelines define “crime of violence” as any offense under federal or state law that is punishable by imprisonment for more than one year and: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague. Johnson, 576 U.S. at-, -, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes clause of the ACCA’s definition of a violent felony. Id. at-, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held in Welch v. United States that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). In 2015, this Court issued our decision in United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), and held that the vagueness doctrine, upon which the Supreme Court invalidated the ACCA’s residual clause in Johnson, did not similarly apply to the Sentencing Guidelines. We explained that the vagueness doctrine applies both to statutes that define elements of crimes and to statutes fixing sentences, but noted that “the advisory guidelines do neither.” Id. at 1194. We then emphasized that, because the pre-Guidelines sentencing scheme that gave plenary discretion to sentencing judges did not violate the notice requirement of the Due Process Clause, advisory guidelines that merely “inform a sentencing judge’s discretion also cannot violate the notice requirement.” Id. at 1194-95. Finally, we explicitly rejected Matchett’s policy-based argument that allowing the identically worded residual clause in § 4B1.2(a) to stand" }, { "docid": "4504725", "title": "", "text": "decided, whether the mandatory Guidelines can be challenged for vagueness in the first instance, let alone whether such a challenge would prevail.’ And it is not for this court acting on collateral review to do so. Indeed, the federal circuits that have considered the issue have unanimously held untimely any challenge raised to the mandatory Guide lines beyond one year after conviction, despite an invocation of Johnson. See Brown, 868 F.3d at 303 (holding that challenge to the mandatory Guidelines is untimely and does not assert a right recognized in Johnson); Raybon v. United States, 867 F.3d 626, 630-31 (6th Oir. 2017) (holding that because the constitutionality of the mandatory Guidelines is “an open question, it is not a ‘right’ that ‘has been newly recognized by the Supreme Court’ let alone one that was ‘made retroactively applicable to cases on collateral review’”); In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (concluding that defendant’s successive petition did not assert a right recognized in Johnson)', see also In re Arnick, 826 F.3d 787, 788 (5th Cir. 2016) (per curiam) (denying authorization to file a successive § 2255 motion relying on a Johnson based challenge to the Guidelines because “Johnson did not address Section 4B1.2(a)(2) of the Guidelines”). We agree with the well-reasoned decisions of our sister circuits and therefore hold that Mr. Greer’s motion is untimely. III. CONCLUSION We AFFIRM, the dismissal • of .Mr. Greer’s § 2255 motion to vacate his sentence. . U.S.S.G. § 4B1.2 (a)(2)’s list of enumerated offenses was amended in 2016. . Mr, Greer did not challenge his previous conviction for second degree burglary of a dwelling, and the government concedes that his previous convictions for escape and third degree assault are not crimes of violence. . The government’s concession that Mr. Greer had asserted á Johnson claim—as well as its initial concession that Johnson invalidated the Guidelines residual clause— stemmed from binding precedent in this circuit that has since been overturned by the Supreme Court, See United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015), abrogated by Beckles v. United States, —" }, { "docid": "12201967", "title": "", "text": "apply to advisory Sentencing Guidelines. Then, in In re Griffin, 823 F.3d 1350, 1354-55, No. 16-12012, 2016 WL 3002293, at *4 (11th Cir. May 25, 2016), we concluded that the “logic and principles established in Match-ett also govern ... when the Guidelines were mandatory.” Alternatively, even if Johnson invalidated the § 4B1.2 residual clause, we concluded that Welch did not make Johnson retroactive for purposes of a successive § 2255 motion based on the Guidelines. In re Griffin, 823 F.3d at 1355-56, 2016 WL 3002293, at *5. Sams has not satisfied the statutory criteria for filing a successive § 2255 motion based on his career-offender enhancement for several independent and alternative reasons. First, Sams has not made a prima facie showing' that Johnson applies to him in light of Matchett’s and Griffin’s precedent that the Sentencing Guidelines cannot be unconstitutionally vague. See id. at 1354-55, 2016 WL 3002293, at *4; Matchett, 802 F.3d at 1195. Second, our precedent holds that Welch does not make Johnson retroactive for purposes of filing a successive § 2255 motion raising a Johnson-based challenge to the Sentencing Guidelines. See In re Griffin, 823 F.3d at 1355-56, 2016 WL 3002293, at *5; see also Welch, 578 U.S. at -, 136 S.Ct. at 1264-65. Third, even if Johnson retroactively applies to the Guidelines, Sams’s claims still fail. Sams’s presentence investigation report (“PSI”) found him to be a career offender because he had the following pri- or felony convictions: (1) 1985 California convictions for seven counts of robbery; and (2) 1985 federal convictions for two counts of bank robbery and two counts of robbery of savings and loan associations. Sams did not object to the PSI’s listing of his convictions or to the fact of these prior convictions. At sentencing, the district court adopted the findings of fact and conclusions of law in the PSI in all respects. Sams also did. not file a direct appeal. Sams’s robbery convictions categorically count as crimes of violence under the Guidelines’ enumerated crimes clause. See U.S.S.G. § 4B1.2 cmt. n.l (stating that “crime of violence” includes, inter alia, “robbery”); In re" }, { "docid": "661559", "title": "", "text": "PER CURIAM: Dequintan Arnick, federal prisoner # 39501-177, moves for authorization to file a successive 28 U.S.C. § 2255 motion. He may file a successive motion if he makes a prima facie showing that his motion “contain[s]” either “newly discovered evidence that ... would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty,” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 897-98 (5th Cir. 2001). Arnick relies on the “new rule” prong of the statute. Arnick’s sentence was based in part on Section 2K2.1(a)(1) of the Sentencing Guidelines, under which one of his prior convictions was deemed a “crime of violence” pursuant to the “residual clause” of Guidelines Section 4B1.2(a)(2), which defines a “crime of violence” for purposes of Section 2K2.1(a)(1). United States v. Arnick, 418 Fed.Appx. 334, 334 (5th Cir. 2011); see § 2K2.1 cmt. n.1. The Supreme Court has held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2555-57, 2563, 192 L.Ed.2d 569 (2015). Arnick seeks application of Johnson to the identically worded residual clause of Section 4B1.2(a)(2). Johnson announced a new rule of constitutional law that has been made retroactive by the Supreme Court to cases on collateral review. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1264-65, 194 L.Ed.2d 387 (2016). However, Johnson did not address Section 4B1.2(a)(2) of the Guidelines. See Johnson, 135 S.Ct. at 2555-57. Nor has the Supreme Court held that a Guidelines enhancement that increases the Guidelines range implicates the same due process concerns as a statute that increases a statutory penalty. See United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); see also United States v. Wilson, 622 Fed.Appx. 393, 405 n. 51 (5th Cir. 2015), cert. denied, —— U.S. ——, 136 S.Ct. 992, 194 L.Ed.2d 13 (2016). We note that even in direct appeals," }, { "docid": "12191591", "title": "", "text": "Supreme Court precedent, we found that “the Guidelines, whether mandatory or advisory, have always been subject to some constitutional limitations,” and thus there is “no legal basis for concluding that the Guidelines are uniquely immune to vagueness challenges.” Id. at 907 (emphasis added). And given the function and substantial effect of the Guidelines, particularly “the Supreme Court’s emphasis on the role of the Guidelines as the legal framework of sentencing, it would be incongruous for us to conclude that the constitutional concerns of notice and arbitrary enforcement” found in Johnson are not triggered by the Guidelines. Id. Therefore, we concluded, “Johnson’s rationale applies with equal force to the Guidelines’ residual clause.” Id. Patrick argues that his entitlement to relief under § 2255 is grounded in both Johnson and Welch. Other circuits have been faced with the same underlying question here: whether Johnson’s application to the Guidelines is retroactive. The Fourth Circuit, with the benefit of the Supreme Court’s guidance in Welch, held that Johnson is retroactive as applied to the Guidelines. See In re Hubbard, 825 F.3d 225 (4th Cir. 2016). Many other circuit panels, from the Second, Fifth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits, have authorized a second or successive petition, finding a prima facie showing that Johnson applies retroactively to the Guidelines. In re McCall, 826 F.3d 1308, 1310, No. 16-12972-J, 2016 WL 3382006, at *1 n.2 (11th Cir. June 17, 2016) (Martin, J., concurring) (compiling cases); see, e.g., In re Encinias, 821 F.3d 1224 (10th Cir. 2016); Blow v. United States, 829 F.3d 170, No. 16-1530, 2016 WL 3769712 (2d Cir. July 14, 2016). In the instant case, as in Hubbard, the Government asserts that Johnson’s, application to the Guidelines is procedural because, unlike application to the ACCA, “(1) it does not change the range of legally permissible outcomes (which are limited by statutory mínimums and máximums) and (2) errors in calculating a defendant’s advisory guidelines range have been characterized as procedural by the Supreme Court.” Hubbard, 2016 WL 3181417, at *6. We are compelled by controlling precedent in Welch and Pawlak to agree with the" }, { "docid": "1318539", "title": "", "text": "F.3d at 720 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)). The Supreme Court in Johnson announced a new rule of constitutional law. The Court held that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague and that increasing a defendant’s sentence under that clause violated the constitutional right to due process. In Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Court made the new rule of Johnson retroactive to cases on collateral review. Donnell seeks to extend Johnson and Welch by urging that the residual clause of USSG § 4B1.2(a)(2) is also unconstitutionally vague. He further contends that the constitutional rule that he proposes for the sentencing guidelines should be applied retroactively to cases on collateral review. Whether an advisory sentencing guideline is susceptible to a vagueness challenge is an open question in this circuit. See United States v. Ellis, 815 F.3d 419, 421 (8th Cir. 2016). The issue is reasonably debatable, and the answer is not dictated by Johnson. Id. Compare, e.g., United States v. Pawlak, No. 15-3566, 2016 WL 2802723, at *3-4 (6th Cir. May 13, 2016), and United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015), with United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), and United States v. Lee, No. 13-10517, 2016 WL 2638364, at *7-10 (9th Cir. May 6, 2016) (Ikuta, J., dissenting). For Donnell’s successive motion to succeed, therefore, the post-conviction court must announce a second new rule that extends Johnson to the sentencing guidelines. Section 2255(h)(2) says that a second or successive motion must be certified “to contain” a new rule of constitutional law that has been made retroactive by the Supreme Court. “To contain” means “to consist of wholly or in part,” to “comprise,” or to “include.” Webster’s Third New International Dictionary 491 (2002). Mere citation of a new rule in a successive motion is not sufficient to justify certification. A movant surely cannot be authorized to pursue a claim unrelated to the new rule simply by citing Johnson and Welch and claiming" }, { "docid": "12201966", "title": "", "text": "the Sentencing Guidelines provides that a defendant is classified as a career offender if (1) he was at least 18 years old at the time of the offense of conviction; (2) the offense of conviction was either a crime of violence or a controlled-substance offense; and (3) he had at least two prior felony convictions of either a crime of violence or a controlled-substance offense. U.S.S.G. § 4331.1(a). The Guidelines define “crime of violence” as any offense under federal or state law that is punishable by imprisonment for more than one year and: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). In United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), this Court held that the vagueness doctrine, upon which Johnson invalidated the ACCA’s residual clause, did not similarly apply to advisory Sentencing Guidelines. Then, in In re Griffin, 823 F.3d 1350, 1354-55, No. 16-12012, 2016 WL 3002293, at *4 (11th Cir. May 25, 2016), we concluded that the “logic and principles established in Match-ett also govern ... when the Guidelines were mandatory.” Alternatively, even if Johnson invalidated the § 4B1.2 residual clause, we concluded that Welch did not make Johnson retroactive for purposes of a successive § 2255 motion based on the Guidelines. In re Griffin, 823 F.3d at 1355-56, 2016 WL 3002293, at *5. Sams has not satisfied the statutory criteria for filing a successive § 2255 motion based on his career-offender enhancement for several independent and alternative reasons. First, Sams has not made a prima facie showing' that Johnson applies to him in light of Matchett’s and Griffin’s precedent that the Sentencing Guidelines cannot be unconstitutionally vague. See id. at 1354-55, 2016 WL 3002293, at *4; Matchett, 802 F.3d at 1195. Second, our precedent holds that Welch does not make Johnson retroactive for purposes of filing a successive § 2255 motion" }, { "docid": "17682629", "title": "", "text": "Booker’s status as a career offender, his criminal history, and other relevant factors. Resentencing Tr. at 7-8 (Jan. 9, 2007) [Dkt. 105]. He intended the sentence to be “less harsh than [he] felt was dictated by the sentencing guidelines, but which was nevertheless appropriate in light of the totality of the circumstances.” Id. at 6. Booker filed this Section 2255 motion in light of the Supreme Court’s decision in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569, made retroactive by Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387. Prior to Johnsonj ACCA defined a violent felony as any felony that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; (2) is burglary, arson, or extortion, [or] involves use of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another, 18 U.S.C, § 924(e)(2)(B). These are known respectively as the “elements clause,” the “enumerated clause,” and the “residual clause.” See Welch v. United States, 136 S.Ct. at 1261; United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). In Johnson, the Supreme Court held that ACCA’s residual clause is unconstitutionally vague and violates due process. 135 S.Ct. at 2557, 2563. The following year, the Supreme Court determined that the holding in Johnson announced a new, substantive constitutional rule that applied retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. at 1264-65. Because the residual clause of U.S.S.G.. § 4B1.2 is identical to the residual clause of ACCA, the D.C. Circuit has held that the residual clause of Section 4BT.2 is also void for vagueness. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016). The Supreme Court subsequently granted certiorari in Beckles v. United States to resolve a circuit split over whether the residual clause of U.S.S.G. § 4B1.2 is void for vagueness and, if so, whether such a rule should' be applied retroactively to reach cases oh collateral review. See 616 Fed.Appx. 415 (11th Cir. 2015), cert." }, { "docid": "10085158", "title": "", "text": "v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), is familiar to all in the federal criminal justice system. Johnson held that the “residual clause” in the Armed Career Criminal Act definition of a violent felony, see 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. The en banc majority now holds that the reasoning of Johnson extends to a similar residual clause in an advisory Sentencing Guideline on career offenders, holding the guideline provision unconstitutionally vague. The majority also overrules United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), which held, correctly in my view, that the advisory Guidelines are not susceptible to vagueness challenges. The majority’s holding is both premature and erroneous. There is no need for us to decide this now. There is already a circuit split, and the Supreme Court is likely to rule on this question in the coming term. See Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2016), cert. granted, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016), which should be argued in the autumn of 2016. We should not hurry to send many eases back to district courts for re-sentencings that may well prove unnecessary. I respectfully dissent. The best course at this point would be for this court simply to wait for the Supreme Court to decide the issue in Beckles. If we must reach the merits now, we should stick with Tichenor and agree with the Eleventh Circuit, which decided in United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), that the so-called “residual clause” in the advisory Guideline definition of a crime of violence, see U.S.S.G. § 4B1.2(a)(2), is not unconstitutionally vague because it is only advisory. Judge Pryor’s opinion in Matchett is careful and persuasive. Doctrinal and practical considerations support that view. After all, how can non-binding advice be unconstitutionally vague? To begin with the doctrine, the residual clauses in the Armed Career Criminal Act and the advisory Sentencing Guidelines have identical language, but their legal effects differ in a fundamental way. That difference should lead to different answers on the" } ]

[ { "docid": "7839506", "title": "", "text": "inoculation and the evidence establishes that the plaintiff has contributed to Medicare. We conclude that such payments are from a “collateral source” under the law of Pennsylvania. Pennsylvania, as well as many other states, permits an injured party to recover medical expenses from a tort-feasor, not withstanding reimbursement of such expenses by the injured party from a third party, if such reimbursement is from a “collateral source” and not from the tort-feasor. Frequently such payments are from health and accident insurance policies carried by or on behalf of the injured party. Under Pennsylvania law, evidence of receipt of such payment is not admissible in a trial for recovery of damages against a tort-feasor. Trump v. Capek, 267 Pa.Super. 355, 406 A.2d 1079 (1979). The defendant concedes that Medicare Part A is largely financed from compulsory taxes. However, the defendant contends that, since Medicare Part B is financed from premium payments by enrollees together with contributions from funds appropriated by the federal government, the payments received by Mr. Titchnell were not from a “collateral source.” In Smith v. United States, 587 F.2d 1013 (3d Cir. 1978), this Court held that Social Security Survivor benefits paid a widow and children should not be deducted from the widow’s damages award from the government under the Federal Tort Claims Act (FTCA). This decision followed United States v. Harue Hayashi, 282 F.2d 599 (9th Cir. 1960), in which the Ninth Circuit held that payment for awards under FTCA come out of unfunded general revenues of the United States whereas Social Security benefits come from a special fund supplied in part by social security tax payments made by the beneficiary or a relative upon whom the beneficiary is dependent. Id. at 603-04. In Smith, this Court stated that “FTCA recoveries come out of general revenues; Social Security benefits are funded almost entirely from employee and employer contributions.” 587 F.2d at 1016. The Fourth Circuit apparently is in accord with the rationale of the Third and Ninth Circuits. It held that benefits paid out of a “special fund” need not be deducted, specifically holding in United States" } ]

[ { "docid": "4953217", "title": "", "text": "entitled to lifetime free care in government hospitals; he has extremely serious physical and mental illnesses. Both Maryland and Colorado recognize the “thin skull” rule: “a tortfeasor must accept his or her victim as the victim is found.” Schafer v. Hoffman, 831 P.2d 897, 900 (Colo.1992). Compensation for loss of medical services would not, of course, be appropriate merely because a plaintiff disliked the care provided by the VA; however, this is a rare case in which plaintiff produced expert testimony supporting a finding that, due to the VA’s own negligence, further treatment in a VA hospital would result in recurrence of his PTSD. The district court’s award of damages thus serves to make plaintiff whole. See Ballow v. PHICO Ins. Co., 878 P.2d 672, 677 (Colo.1994) (“[c]ompensatory damages are awarded in order to make the injured party whole”). The United States did not object in the district court to awarding damages in the form of a trust, with any sums remaining at plaintiffs death reverting to the government. This ensures that plaintiff does not receive a windfall. We have approved reversionary trusts in FTCA cases involving large awards for future medical needs. See Hill v. United States, 81 F.3d 118 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 56, 136 L.Ed.2d 19 (1996); Hull v. United States, 971 F.2d 1499 (10th Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1844, 123 L.Ed.2d 469 (1993). We perceive no error in this aspect of the district court’s award. rv Finally, the United States argues that the $600,000 noneconomic damages awarded by the district court were excessive. We review the award of noneconomic damages for clear error, to determine whether “the award shocks the judicial conscience.” Miller v. United States ex rel. Dep’t of the Army, 901 F.2d 894, 897 (10th Cir.1990). Based on the extent of plaintiff’s physical and emotional injuries he sustained as a result of the VA’s malpractice, we cannot conclude that these noneconomic damage awards were excessive. AFFIRMED. . Ormond’s disease causes scar tissue in the peritoneal cavity which can encase tubular organs or structures between organs," }, { "docid": "7982342", "title": "", "text": "— U.S. at -, 112 S.Ct. at 717 (rejecting government’s view that “duplicative damages would be ‘punitive damages’ because they have the effect of making the United States pay twice”). The Court concluded that awarding future expenses in the light of free care was not punitive. Whether such an award is permissible, the Court indicated, was a matter of state law. Thus, the issue with which we are confronted on remand is not what Congress intended, but rather whether state law, in particular, Wisconsin law, permits double payment. As to the applicability of Wisconsin’s collateral source rule, the government contends, albeit haphazardly, that the rule does not permit the plaintiff to recover twice from the same defendant. It cites no cases (Wisconsin or otherwise), but relies on § 920A of the Restatement (Second) of Torts, which indicates that a double recovery is permissible “so long as they did not come from the defendant or a person acting for him.” Restatement (Second) of Torts § 920A (comment b) (1977). In essence, the government argues that the collateral source rule does not apply because there is no collateral source. Permitting the plaintiff to recover twice for the same injury pursuant to the collateral source rule is generally justified on the ground that the tortfeasor should not be permitted to reap the benefits of the plaintiffs foresight in obtaining coverage for future harm or his good fortune in obtaining compensation gratuitously. Thoreson, 201 N.W.2d at 752. In choosing who should receive the windfall from the “surplus” award, i.e., compensation over and above that necessary to compensate the plaintiff for the injuries sustained by the tortious conduct, the plaintiff is thought to be far more deserving than the defendant. On the other hand, the rule has been held to be inapplicable when the double recovery comes from the same source. Thomas v. Shelton, 740 F.2d 478, 484-85 (7th Cir.1984) (Indiana law); In re Air Crash Near Cerritos, 982 F.2d 1271, 1277 (9th Cir.1992) (California law). After the victim has been compensated by the tortfeasor, it is thought that making the tortfeasor pay the victim" }, { "docid": "7982355", "title": "", "text": "final judgment in the district court but before filing .of the notice of appeal to this court in the first round of litigation. . § 2674 provides in relevant 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. 28 U.S.C. § 2674 (1988). . The government relied entirely on Brooks and its progeny in its brief in the present appeal. At oral argument, however, the government argued that the collateral source rule is inapplicable because the medical expenses will not be paid by a collateral source, and cited as authority the Restatement of Torts. Counsel for the government explained that he believed that this authority was cited in the government's brief before the Supreme Court. Following oral argument, the government submitted copies of the section of its brief citing the Restatement before this court in the earlier appeal. . See, e.g., Leeper v. United States, 756 F.2d 300 (3d Cir.1985); United States v. Gallops, 207 F.2d 48 (5th Cir.1953). . See, e.g., Jennings v. United States, 291 F.2d 880 (4th Cir.1961); United States v. Price, 288 F.2d 448 (4th Cir.1961). . See, e.g., Manko v. United States, 830 F.2d 831 (8th Cir.1987); Berg v. United States, 806 F.2d 978 (10th Cir.1986); Siverson v. United States, 710 F.2d 557 (9th Cir.1983); Titchnell v. United States, 681 F.2d 165 (3d Cir.1982). . See, e.g., Smith v. United States, 587 F.2d 1013 (3d Cir.1978); Coates v. United States, 612 F.Supp. 592 (C.D.Ill.1985). . We note that in Carter v. United States, 982 F.2d 1141, 1145 (7th Cir.1992), we stated that \"Veteran's benefits ... cannot be analogized to payments from a third party, which accumulate with tort awards under the collateral-source rule.” Carter, however, does not control this case. First, Carter dealt with disability benefits already received, not future medical expenses, and Congress has made clear that disability benefits are to be aggregated and offset from" }, { "docid": "7982346", "title": "", "text": "patent that the nature of the'two payments is different. The nature of the first is as a payment from defendant as insurer to the plaintiff insured. The nature of the second is as a payment from defendant as tortfea-sor to the plaintiff as the party injured by the defendant’s negligence. It is axiomatic that the plaintiff is entitled to receive the benefit of her bargain under the insurance contract, irrespective of the fact that the carrier servicing that contract may also be the tortfeasor. ... To set off payments owed by the defendant as insurer against compensation owed by the defendant as tortfeasor allows the defendant to reap a windfall by allowing it to avoid its contractual obligations to the plaintiff. Id. at 1258. These principles have carried over into suits against the government under the FTCA. Although the government failed to tap into this body of law, we note that courts applying the collateral source rule in FTCA suits have looked to the source and nature of the payments received by the plaintiff, even though both payments were made by the government. See generally John F. Wagner, Jr., Annotation, Application of Collateral Source Rule in Actions Under Federal Tort Claims Act (28 U.S.C. § 2674), 104 A.L.R.Fed. 492 (1991). Thus, courts generally have held that state collateral source rules apply against the government in FTCA cases (1) if the .payment to the plaintiff comes from a specially funded source distinct from the unsegregated general revenues of the Federal Treasury, e.g., United States v. Hayashi, 282 F.2d 599 (9th Cir.1960), or (2) if the plaintiff contributed to the government payments and, thus, was entitled to the payments irrespective of the damages award, e.g., Overton v. United States, 619 F.2d 1299 (8th Cir.1980). Under this line of cases, courts have held state collateral source rules applicable when the government payments take the form of civil service sick leave payments, civil service retiree compensation, Medicare payments and social security benefits. With respect to veterans’ medical benefits, however, a number of courts have held that, because the benefits do not come from a" }, { "docid": "7949794", "title": "", "text": "to render the Government liable in tort as a private individual would be under like circumstances.” Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The FTCA “neither creates causes of action against the United States nor provides a means of enforcing federal statutory duties. Rather, it ‘constitutes consent to suit and is fundamentally limited to cases in which a private individual [would be liable] under like circumstances.’ ” United States v. Cundiff, 555 F.3d 200, 217 (6th Cir.2009) (alteration in original). Although the United States government may be liable “in the same manner and to the same extent as a private individual under like circumstances,” the government is not liable for pre-judgment interest or for punitive damages. 28 U.S.C.A. § 2674. Claims under the FTCA involve a two-step analysis. “First the district court applies local law to determine liability and to assess damages. Second, federal law is invoked to bar proscribed recoveries, such as punitive damages.” Palmer v. United States, 146 F.3d 361, 366 (6th Cir. 1998) (quoting Kirchgessner v. United States, 958 F.2d 158, 159 (6th Cir.1992)); see Richards, 369 U.S. at 10, 82 S.Ct. 585 (“We conclude that Congress has, in the Tort Claims Act, enacted a rule which requires federal courts ... to look in the first instance to the law of the place where the acts of negligence took place.”). Thus, liability under the FTCA is usually determined by referencing state law. Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). Because the alleged act of negligence took place in Michigan, we must look to Michigan law. Under Michigan’s No-Fault Act, “victims of motor vehicle accidents ... receive insurance benefits for their injuries as a substitute for their common-law remedy in tort.” Kreiner v. Fischer, 471 Mich. 109, 683 N.W.2d 611, 617 (2004). The No-Fault Act provides that “[t]he owner or registrant of a motor vehicle required to be registered ... shall maintain security for payment of benefits under personal protection insurance.... ” M.C.L.A. § 500.3101(1). In accordance with personal protection insurance (“PIP”)," }, { "docid": "11252371", "title": "", "text": "806 F.2d 978, 984-86 (10th Cir.1986); Siverson v. United States, 710 F.2d 557, 560 (9th Cir.1983); Titchnell v. United States, 681 F.2d 165, 174-76 (3d Cir.1982); see also Application of collateral source rule in actions under Federal Tort Claims Act (28 U.S.C.A. § 2674), 104 A.L.R. Fed. 492 (1991). . In cases under the Federal Tort Claims Act, several courts have invoked their inherent authority in awarding medical damages in the form of a trust, with any sums not expended for medical care reverting to the government. See, e.g., Dickerson v. United States, 280 F.3d 470, 479 (3th Cir.2002); Deasy v. United States, 99 F.3d 354, 360 (10th Cir.1996). This process has been employed to ensure that a plaintiff does not receive a windfall. Deasy, 99 F.3d at 360. Other courts, however, have held that no such authority exists and that damages must be made in a lump-sum award. See, e.g., Frankel v. Heym, 466 F.2d 1226, 1228-29 (3d Cir.1972). Defendant, however, has not requested that the medical damages here be awarded in trust and the court thus need not decide whether it has the authority to do this, and, if so, whether this is an appropriate situation in which to do so. . This figure is calculated by adding $8,080.00, corresponding to the cost of the medical care in the first year, to $15,241.58, corresponding to the present value (using a four percent discount rate) of the annual medical costs to be incurred over the next two years. The four percent discount factor is designed to take into account the earning power of money over the period in question. See, e.g., Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 536-37, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983) (\"It has been settled since our decision in Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485 ...[, 36 S.Ct. 630, 60 L.Ed. 1117] (1916), that ‘in all cases where it is reasonable to suppose that interest may safely be earned upon the amount that is awarded, the ascertained future benefits ought to be discounted in the making up" }, { "docid": "11963921", "title": "", "text": "elements of the award or the proper scope of recovery, is a question of law. See Bartlett v. New York State Bd. of Law Exam’rs, 156 F.3d 321, 331-32 (2d Cir.1998) (“We review the method of calculation of damages de novo and the actual calculation of damages for clear error.” (internal citations omitted)); In re Air Crash Disaster Near Cerritos, Cal., on August 31, 1986, 982 F.2d 1271, 1275 (9th Cir.1992) (“When a legal determination such as the proper elements of an award of damages is reviewed, a de novo standard is applied.”) A. MedAlliance assigns error to the district court because it did not subtract from the damages calculated by the court the $2,041,184 in profits' SCMRI realized after the breach. Defendant asserts that SCMRI received an improper double recovery because it was awarded expectancy damages and also retained post-breach profits from the clinic. We disagree. Colorado follows the general contract law rule that a benefit to the plaintiff as a result of a breach reduces the plaintiffs damages accordingly. See Wells Aircraft Parts Co. v. Allan J. Kayser Co., 118 Colo. 197, 194 P.2d 326, 330 (Colo.1947); Wickland v. Snyder, 39 Colo.App. 403, 565 P.2d 976, 977 (Colo.Ct.App.1977); see also Restatement (Second) of Contracts, § 347(c) & cmt. d (1981); 22 Am.Jur.2d Damages § 522 (1988). However, this rule is not implicated in the instant case because the district court’s method of calculating damages takes into account SCMRI’s post-breach profits. Breach of contract damages are generally measured at the time of breach. See McCoy v. Riley, 771 P.2d 25, 26-27 (Colo.Ct.App.1989). The district court followed this rule, calculating damages by subtracting the market price at breach from the contract price. It used MVI’s offer as the measure of market price. MVI’s offer reflected what a willing buyer would have paid for the clinic as a going concern at the time of the breach, and that present valuation would have necessarily incorporated expected future profits. See Protectors Ins. Serv., Inc. v. United States Fidelity & Guar. Co., 132 F.3d 612, 617 (10th Cir.1998) (applying Colorado law and noting that" }, { "docid": "11963920", "title": "", "text": "record supports a conclusion that SCMRI and MedAlliance clearly and unambiguously waived their right to be bound only by a written purchase agreement. Cf. Burman, 821 P.2d at 919-20 (finding plaintiff impliedly waived provision of real estate purchase agreement requiring delivery of commitments for title insurance policies prior to closing because plaintiff did not object to failure to deliver commitments); Richmond, 781 P.2d at 195 (finding contractor did not waive contractual provision that home owner purchase property insurance for work where only evidence of waiver was that contractor began work without receiving a copy of the owner’s insurance policy). Therefore, we conclude that the district court committed no reversible error in finding that a valid contract existed between MedAlliance and SCMRI as of July 7, 1993. II. Damages We review the amount of a damage award for clear .error and questions of law de novo. See, e.g., Dill v. City of Edmond, Okla., 155 F.3d 1193, 1209 (10th Cir.1998). The methodology a district court uses in calculating a damage award, such as determining the proper elements of the award or the proper scope of recovery, is a question of law. See Bartlett v. New York State Bd. of Law Exam’rs, 156 F.3d 321, 331-32 (2d Cir.1998) (“We review the method of calculation of damages de novo and the actual calculation of damages for clear error.” (internal citations omitted)); In re Air Crash Disaster Near Cerritos, Cal., on August 31, 1986, 982 F.2d 1271, 1275 (9th Cir.1992) (“When a legal determination such as the proper elements of an award of damages is reviewed, a de novo standard is applied.”) A. MedAlliance assigns error to the district court because it did not subtract from the damages calculated by the court the $2,041,184 in profits' SCMRI realized after the breach. Defendant asserts that SCMRI received an improper double recovery because it was awarded expectancy damages and also retained post-breach profits from the clinic. We disagree. Colorado follows the general contract law rule that a benefit to the plaintiff as a result of a breach reduces the plaintiffs damages accordingly. See Wells Aircraft Parts" }, { "docid": "7982347", "title": "", "text": "though both payments were made by the government. See generally John F. Wagner, Jr., Annotation, Application of Collateral Source Rule in Actions Under Federal Tort Claims Act (28 U.S.C. § 2674), 104 A.L.R.Fed. 492 (1991). Thus, courts generally have held that state collateral source rules apply against the government in FTCA cases (1) if the .payment to the plaintiff comes from a specially funded source distinct from the unsegregated general revenues of the Federal Treasury, e.g., United States v. Hayashi, 282 F.2d 599 (9th Cir.1960), or (2) if the plaintiff contributed to the government payments and, thus, was entitled to the payments irrespective of the damages award, e.g., Overton v. United States, 619 F.2d 1299 (8th Cir.1980). Under this line of cases, courts have held state collateral source rules applicable when the government payments take the form of civil service sick leave payments, civil service retiree compensation, Medicare payments and social security benefits. With respect to veterans’ medical benefits, however, a number of courts have held that, because the benefits do not come from a specially funded source and ostensibly because the veteran did not contribute to his medical benefits, the source was not collateral to the damage award and, thus, the collateral source rule was inapplicable. Steckler v. United States, 549 F.2d 1372 (10th Cir.1977); Feeley v. United States, 337 F.2d 924, 934 (2d Cir.1964); United States v. Brooks, 176 F.2d 482 (4th Cir.1949); Green v. United States, 530 F.Supp. 633 (E.D.Wis.1982), aff'd on other grounds, 709 F.2d 1158 (7th Cir.1983); cf. Mays v. United States, 806 F.2d 976 (10th Cir.1986) (Civilian Health and Medical Program of the Uniform Services (CHAMPUS) benefits for certain retired members of the armed services and their dependents), cert. denied, 482 U.S. 913, 107 5.Ct. 3184, 96 L.Ed.2d 673 (1987). But on the crucial point whether the medical benefits are deemed collateral to an FTCA award under Wisconsin law, we are of the view that the Wisconsin Supreme Court would deem these benefits collateral. In Smith v. United Services Automobile Ass’n, 52 Wis.2d 672, 190 N.W.2d 873 (1971), the plaintiff was involved in a" }, { "docid": "9344449", "title": "", "text": "$2,856,100 in damages awarded to the Duplans to cover the extraordinary costs of Zachary’s care. While the district court believed that a trust arrangement was of vital importance to the case, it concluded that it did not have the power to impose a trust. As the government correctly notes, we have held that district courts have inherent authority to impose a trust as part of a judgment in FTCA cases. See Hull v. United States, 971 F.2d 1499, 1504-05 (10th Cir.1992); see also Deasy v. United States, 99 F.3d 354, 360 (10th Cir.1996); Hill v. United States, 81 F.3d 118, 121 (10th Cir.1996). But the fact that district courts generally have such authority does not end our inquiry. Rather, we must determine whether imposition of a trust in the instant case would have been appropriate. An action for wrongful birth is designed to compensate the parents, not the child. See Liddington v. Burns, 916 F.Supp. 1127, 1132 (W.D.Okla.1995) (noting that wrongful birth action is designed to compensate parent plaintiffs for “being deprived of the option of ... making an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child”); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 55 at 370 (5th ed.1984) (stating that wrongful birth claims are brought by parents to recover their own damages). Unlike the situations presented in Hull, Hill, and Deasy, Zachary is not the true plaintiff in this case. While the $2,856,100 portion of the damages award may benefit Zachary, it is not compensation to him for any injury he has suffered. The damages belong to the true plaintiffs, the Duplans, and the district court would have erred in imposing a trust on this award in the absence of their consent. V. The Duplans argue in their cross-appeal that the district court erred in calculating the damages for the Duplans’ emotional distress and for the extraordinary costs of Zachary’s care. We will uphold the district court’s findings concerning the appropriate amount of damages unless they are clearly erroneous. See" }, { "docid": "417320", "title": "", "text": "FTCA for negligent administration of a swine flu inoculation. The evidence established that plaintiff contributed to Medicare, resulting in the court’s conclusion that such payments are from a collateral source under Pennsylvania law. Id. at 174. See also Smith v. United States, 587 F.2d 1013 (3d Cir.1978) (Social Security Survivor benefits paid a widow and children not deducted from widow’s damage award from government under FTCA); United States v. Price, 288 F.2d 448 (4th Cir.1961) (Civil Service Retirement benefits not deductible); and United States v. Brooks, 176 F.2d 482 (4th Cir.1949) (National Service Life Insurance Policy benefits not deductible from FTCA damage award). But see Steckler v. United States, 549 F.2d 1372 (10th Cir.1977) (burden on claimant to trace contributions to the Social Security fund in order to determine the percentage contributed to the fund by the government and ultimately the amount of Social Security payments that could be considered nondeductible). Here, the district court held that “the United States of America has not sustained its burden of proof as to any Medicare benefits which the plaintiff may receive, or be entitled to receive, in the future.” We agree. The record here shows that the United States failed to sustain that burden as to either its contributions or the amount of benefits that Siverson would be expected to receive in the future. Under these circumstances, the district court did not err in refusing to deduct Medicare expenses from the damage award. Medicare Expenses as Punitive Damages. Section 2674 of the FTCA, 28 U.S.C. § 2674, describes the liability of the United States in tort claims cases to be “in the same manner and to the same extent as a private individual under like circumstances, but [the United States] shall not be liable ... for punitive damages.” The government contends to not deduct Medicare expenses from Siverson’s award constitutes punitive damages because the effect is a windfall double recovery for Siverson. The government’s rationale would essentially always find recovery from a collateral source to be “punitive” and ignores the collateral source doctrine’s purpose of preventing a windfall to the defendant. II." }, { "docid": "9344448", "title": "", "text": "an employee of that hospital.” 876 F.2d at 860. Likewise, that Dr. Harper was subject to the government’s rules as a condition of working at the Clinic does not indicate that he was an employee of the government. We are left, then, with the requirement that Dr. Harper be at the Clinic during designated hours, the government’s provision of equipment and office space, and the government’s control over patient records as the sole facts weighing in favor of finding Dr. Harper an employee of the government. Even when viewed together, these particulars are insufficient to demonstrate government control over Dr. Harper’s “detailed physical performance” when balanced against the delineation of responsibility and insurance liability set forth in the contracts and other facts supporting the conclusion that Dr. Harper was an independent contractor. See id. (stating control determination is conducted by balancing competing factors). We therefore reverse the district court’s conclusion that Dr. Harper was a governmental employee. IV. The government last argues that the district court erred in failing to impose a trust on the $2,856,100 in damages awarded to the Duplans to cover the extraordinary costs of Zachary’s care. While the district court believed that a trust arrangement was of vital importance to the case, it concluded that it did not have the power to impose a trust. As the government correctly notes, we have held that district courts have inherent authority to impose a trust as part of a judgment in FTCA cases. See Hull v. United States, 971 F.2d 1499, 1504-05 (10th Cir.1992); see also Deasy v. United States, 99 F.3d 354, 360 (10th Cir.1996); Hill v. United States, 81 F.3d 118, 121 (10th Cir.1996). But the fact that district courts generally have such authority does not end our inquiry. Rather, we must determine whether imposition of a trust in the instant case would have been appropriate. An action for wrongful birth is designed to compensate the parents, not the child. See Liddington v. Burns, 916 F.Supp. 1127, 1132 (W.D.Okla.1995) (noting that wrongful birth action is designed to compensate parent plaintiffs for “being deprived of the option" }, { "docid": "3107890", "title": "", "text": "statute].’ ” Brief in Support of Summary Judgment Motion at 16 (quoting 42 U.S.C. § 1395y(b)(2)(B)). Since the “appropriate Trust Fund” is the only entity entitled to receive reimbursement under the MSPA, the Movants argue that it, and not HCFA, is the party with standing to seek reimbursement from the Debtor. The cases cited by the Movants in support of this argument discuss the effect that the source of government funding (i.e. general revenue fund versus special fund such as social security fund) has on the “collateral source” rule. Id. (citing Berg v. United States, 806 F.2d 978, 985-86 (10th Cir.1986)) and Siverson v. United States, 710 F.2d 557, 560 (9th Cir.1983). However, these cases do not stand for the proposition that the United States lacks standing to bring suit on behalf of a trust fund created by the Government, operated by the Government and funded by taxpayer dollars. The fact is, the MSPA expressly provides that “the United States may bring an action” for recovery thereunder. 42 U.S.C. § 1395y(b)(2)(B)(ii). Moreover, the Medicare program is administered by the Secretary of Health and Human Services. And the Secretary delegated the responsi bility for promulgating regulations under the MSPA to HCFA. 42 U.S.C. § 1395hh(a)(l); 42 C.F.R. § 411.24(b) (“HCFA may initiate recovery as soon as it learns that payment has been made or could be made under worker’s compensation, any liability or no-fault insurance, or an employer group health plan.”). Therefore, the HCFA claim was filed by the appropriate entity. B. Statute of Limitations As explained, the Government’s rights under the MCRA and the MSPA are subrogated to the state law rights of the federal beneficiary. Nevertheless, the state statute of limitations that would otherwise be applicable to the beneficiary’s claim will generally have no impact on the Government’s claim. This result derives from the fact that the Government represents the collective rights of its citizens. And because these rights belong to the public as a whole, they are not subject to forfeiture due to the carelessness or complacency of a governmental official. See, e.g., United States v. Thompson, 98" }, { "docid": "7982356", "title": "", "text": "appeal. . See, e.g., Leeper v. United States, 756 F.2d 300 (3d Cir.1985); United States v. Gallops, 207 F.2d 48 (5th Cir.1953). . See, e.g., Jennings v. United States, 291 F.2d 880 (4th Cir.1961); United States v. Price, 288 F.2d 448 (4th Cir.1961). . See, e.g., Manko v. United States, 830 F.2d 831 (8th Cir.1987); Berg v. United States, 806 F.2d 978 (10th Cir.1986); Siverson v. United States, 710 F.2d 557 (9th Cir.1983); Titchnell v. United States, 681 F.2d 165 (3d Cir.1982). . See, e.g., Smith v. United States, 587 F.2d 1013 (3d Cir.1978); Coates v. United States, 612 F.Supp. 592 (C.D.Ill.1985). . We note that in Carter v. United States, 982 F.2d 1141, 1145 (7th Cir.1992), we stated that \"Veteran's benefits ... cannot be analogized to payments from a third party, which accumulate with tort awards under the collateral-source rule.” Carter, however, does not control this case. First, Carter dealt with disability benefits already received, not future medical expenses, and Congress has made clear that disability benefits are to be aggregated and offset from an FTCA award. 38 U.S.C. § 351; United States v. Kubrick, 444 U.S. 111, 116 n. 5, 100 S.Ct. 352, 356, n. 5, 62 L.Ed.2d 259 (1979). No such provision exists regarding the provision of medical benefits. The plaintiffs in Carter, thus conceded that the benefits should be offset against their recovery in tort. Second, Carter relied on Brooks and made no mention of the Supreme Court's decision in the instant case, which held that nothing under federal law precludes double payment with respect to future medical expenses. Finally, in Carter we were applying Indiana substantive law, whereas here we apply the substantive law of Wisconsin. . The court in Feeley also suggested that application of the collateral source rule to recover the value of free hospital care rendered by the government would seem to embody elements of punitive damages prohibited by the FTCA. Feeley, 337 F.2d at 934. . As we noted, supra note 8, Congress has explicitly limited double recovery under 38 U.S.C. § 351 with respect to veterans' disability payments." }, { "docid": "11252322", "title": "", "text": "court to analyze plaintiff’s monetary claims. 1. Defendant does not contest that, if Ms. Elk experienced emotional injuries as a result of the assault, she should receive any medical treatment needed to treat her condition. Defendant, moreover, does not contest Dr. Manlove’s testimony that such treatment ought to take the form of weekly psychotherapy and monthly pharmacologic management by a psychiatrist through 2011. It implies, however, that the recovery of these expenses should be eliminated as the United States has offered in the past and is prepared to continue to offer Ms. Elk the needed medical care free of charge. Defendant does not provide the rationale for the latter conclusion, presumably operating on the assumption that plaintiff should not recover what she will not be obliged to pay. A similar issue has been presented in cases arising under the Federal Tort Claims Act. In a number of cases, courts have examined this issue under the so-called “collateral source rule,” under which the victim of a tort is allowed to recover for damages caused by the tortfeasor regardless of compensation received from other “collateral sources.” See Leeper v. United States, 756 F.2d 300, 303 (3d Cir.1985). Courts have adopted varying positions where the government was both the tortfeasor and the source of collateral benefits under various statutes, such as the Social Security Act or the Medicare statutes—in some cases, requiring the reduction of awards and in others, not. In each of those cases, however, it was established that the victim was entitled to receive free medical care from the government in the future. See, e.g., Molzof, 6 F.3d at 463. There is, however, no such evidence here and any inferences made, on brief, by defendant’s counsel in this regard are hardly a substitute for that evidence. See Galen Medical Assocs., Inc. v. United States, 369 F.3d 1324, 1339 (Fed.Cir.2004) (“Statements of counsel ... are not evidence.”). Accordingly, the court sees no evidentiary basis upon which to re duce the award for medical costs here to reflect free medical care that Ms. Elk might receive from various agencies or instrumen-talities of the" }, { "docid": "6080556", "title": "", "text": "“only applies specifically to federal district courts”). Therefore, if the court’s jurisdiction over Counts I-IV solely was dependent on Section 1367, the Complaint would have to be dismissed. The Tucker Act, however, provides the court with jurisdiction over each of these claims in so far as they allege, individually and collectively, a breach of the Settlement Agreement. Therefore, the Government’s motion to dismiss on Section 1367 grounds is denied. 6. The United States Court Of Federal Claims Has Jurisdiction To Adjudicate Tort Claims That “Stem From A Breach Of Contract.” Count IV of the Complaint alleges that'Mr. Hall suffered undue hardship, emotional distress, mental anguish, humiliation, and harm to good name and character, and requests damages for physical and emotional distress. See Compl. ¶ 1, 2. The Government argues that such claims “sound in tort,” and, as such, are not subject to the jurisdiction conferred by the Tucker Act. The Government is correct that the United States Court of Federal Claims does not have jurisdiction over tort claims. See 28 U.S.C. § 1491(a)(1) (1994 & Supp. V 1999); see also Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.l997)(“The Court of Federal Claims is a court of limited jurisdiction. It lacks jurisdiction over tort actions against the United States.”). In addition, the court does not have jurisdiction to award damages for emotional distress and pain and suffering. See Pratt v. United States, 50 Fed.Cl. 469, 482 (2001) (“Except in limited circumstances related to common carriers and innkeepers not applicable here, the court cannot award damages for the emotional consequences of a breach of contract because such consequences are speculative as a matter of law.”). It is well established, however, that “where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly within the exclusive jurisdiction of the [United States] Court of Federal Claims.” Awad v. United States, 301 F.3d 1367, 1372 (Fed.Cir.2002) (citing Wood v. United States, 961 F.2d 195, 198 (1992); Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F.2d 351 (5th Cir.1965); Woodbury" }, { "docid": "11252370", "title": "", "text": "acculturation influences the MMPI performance of Native Americans (including significant elevations on F scales) based on its administration to 69 Sioux and urging caution in interpreting their MMPI profiles); Richard Dana, \"Personality Assessment and Native Americans,” 50(3) J. of Personality Assessment 480 (1986) (finding that personality assessments for Native Americans have been culturally inappropriate); R.W. Robin, et ah, \"Use of the MMPI-2 in American Indians,” 15(3) Psychol. Assessment 351 (Sept.2003) (finding clinically significant higher MMPI T-scores on validity and clinical scales that may reflect adverse historical, social, and economic conditions of Native Americans). . Compare Restatement (Second) of Contracts §§ 347, 353 (allowing for the recovery of tort-like damages where \"the breach ... caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result”); see also Pratt v. United States, 50 Fed.Cl. 469, 482 (2001). . See, e.g., Molzof v. United States, 6 F.3d 461, 464-68 (7th Cir.1993); In re Air Crash Disaster, 982 F.2d 1271, 1277 (9th Cir.1992); Berg v. United States, 806 F.2d 978, 984-86 (10th Cir.1986); Siverson v. United States, 710 F.2d 557, 560 (9th Cir.1983); Titchnell v. United States, 681 F.2d 165, 174-76 (3d Cir.1982); see also Application of collateral source rule in actions under Federal Tort Claims Act (28 U.S.C.A. § 2674), 104 A.L.R. Fed. 492 (1991). . In cases under the Federal Tort Claims Act, several courts have invoked their inherent authority in awarding medical damages in the form of a trust, with any sums not expended for medical care reverting to the government. See, e.g., Dickerson v. United States, 280 F.3d 470, 479 (3th Cir.2002); Deasy v. United States, 99 F.3d 354, 360 (10th Cir.1996). This process has been employed to ensure that a plaintiff does not receive a windfall. Deasy, 99 F.3d at 360. Other courts, however, have held that no such authority exists and that damages must be made in a lump-sum award. See, e.g., Frankel v. Heym, 466 F.2d 1226, 1228-29 (3d Cir.1972). Defendant, however, has not requested that the medical damages here be awarded in trust and" }, { "docid": "11809918", "title": "", "text": "§ 46. Although we have held that claims for emotional distress are cognizable under admiralty law, see Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1409 (9th Cir.1994), there appears to be no established maritime standard for evaluating such claims. See Muratore v. M/S Scotia Prince, 845 F.2d 347, 353 n. 3 (1st Cir.1988) (“[T]he district court applied Maine law because there is no rule of law in maritime law on infliction of emotional distress.”); York v. Commodore Cruise Line, Ltd., 863 F.Supp. 159, 164 (S.D.N.Y.1994) (“There is no maritime law concerning plaintiffs’ claim that defendants’ conduct surrounding the subsequent investigation constituted the intentional infliction of emotional distress.”). We have the authority to develop general maritime law regarding claims not directly governed by congressional legislation or admiralty precedent. Chan, 39 F.3d at 1409; see also Thomas J. Schoenbaum, Admiralty and Maritime Law, § 4-1, at 146 (3d ed. 2001) (“When new situations arise that are not directly governed by legislation or admiralty precedent, federal courts may fashion a rule for decision by a variety of methods. Federal courts may, and often do, look to state statutory law and to precepts of the common law which they ‘borrow’ and apply as the federal admiralty rule.” (footnote omitted)). While we do not regard the Restatement (Second) of Torts as the only source of maritime law governing claims for intentional infliction of emotional distress, we recognize that it has been regularly employed by other courts to evaluate intentional infliction of emotion distress claims in federal maritime cases. See, e.g., Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1283 n. 23 (1st Cir.1993); York, 863 F.Supp. at 164; Nelsen v. Research Corp. of Univ. of Haw., 805 F.Supp. 837, 851-52 (D.Haw.1992). We will do the same. Section 46 of the Restatement states in pertinent part: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Comment d elaborates: The cases thus far decided have found liability" }, { "docid": "6080557", "title": "", "text": "Supp. V 1999); see also Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.l997)(“The Court of Federal Claims is a court of limited jurisdiction. It lacks jurisdiction over tort actions against the United States.”). In addition, the court does not have jurisdiction to award damages for emotional distress and pain and suffering. See Pratt v. United States, 50 Fed.Cl. 469, 482 (2001) (“Except in limited circumstances related to common carriers and innkeepers not applicable here, the court cannot award damages for the emotional consequences of a breach of contract because such consequences are speculative as a matter of law.”). It is well established, however, that “where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly within the exclusive jurisdiction of the [United States] Court of Federal Claims.” Awad v. United States, 301 F.3d 1367, 1372 (Fed.Cir.2002) (citing Wood v. United States, 961 F.2d 195, 198 (1992); Blanchard v. St. Paul Fire & Marine Ins. Co., 341 F.2d 351 (5th Cir.1965); Woodbury v. United States, 313 F.2d 291, 295 (9th Cir.1963)). Accordingly, the court has jurisdiction over Plaintiffs claims for damages “sounding in tort” that arise from the USDA’s alleged breach of the Settlement Agreement. Although the court has jurisdiction to adjudicate this claim because it is ultimately one arising in contract, the court has no authority to award Plaintiff damages for “emotional distress and pain and suffering.” Therefore, the portions of the Complaint that seek damages for “emotional distress and pain and suffering” are dismissed. See, e.g., Compl. ¶1133b, c, e; see also id. (Relief Sought H1). CONCLUSION For these reasons, the Government’s Partial Motion to dismiss is GRANTED, in part, and DENIED, in part. The Government is ordered to file an Answer. In the interim, the court will make inquiries to ascertain whether counsel can be obtained to represent plaintiff and file a First Amended Complaint adding a specific citation in Paragraph 1 to the court’s jurisdiction under the Tucker Act and deleting those claims alleging and requesting damages for emotional distress and pain and" }, { "docid": "11252369", "title": "", "text": "there been a significant problem [of administering the MMPI to Native Americans], it would have been discussed in the literature and addressed,” adding that he had never seen such an article. Apparently, though, he had not spent much time looking, as a cursory review of the literature reveals numerous studies and articles over the last three decades questioning the validity of the MMPI and the PAI as administered to Native Americans. See, e.g., D. Pollack, et al., \"Validity of the MMPI with Native Americans,\" 137 Am. J. Psychiatry 946 (1980) (finding significant elevations in Sc, Pd, and Pa scales of Native Americans and a significant cultural affect on MMPI results); Albert Uecker, et ah, \" ‘Indian-ism’ and MMPI Scores of Men Alcoholics,” 41(3) J. of Stud, on Alcohol and Drugs 357 (Mar. 1980) (advising caution in using the MMPI to diagnose Native American psychiatric problems given effect on Hs, Hy, Pt, and & scales); Tom Hoff-mann, \"Measured Acculturation and MMPI-168 Performance of Native American Adults,\" 16(2) J. of Cross-Cultural Psychol. 243 (June 1985) (confirming that acculturation influences the MMPI performance of Native Americans (including significant elevations on F scales) based on its administration to 69 Sioux and urging caution in interpreting their MMPI profiles); Richard Dana, \"Personality Assessment and Native Americans,” 50(3) J. of Personality Assessment 480 (1986) (finding that personality assessments for Native Americans have been culturally inappropriate); R.W. Robin, et ah, \"Use of the MMPI-2 in American Indians,” 15(3) Psychol. Assessment 351 (Sept.2003) (finding clinically significant higher MMPI T-scores on validity and clinical scales that may reflect adverse historical, social, and economic conditions of Native Americans). . Compare Restatement (Second) of Contracts §§ 347, 353 (allowing for the recovery of tort-like damages where \"the breach ... caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result”); see also Pratt v. United States, 50 Fed.Cl. 469, 482 (2001). . See, e.g., Molzof v. United States, 6 F.3d 461, 464-68 (7th Cir.1993); In re Air Crash Disaster, 982 F.2d 1271, 1277 (9th Cir.1992); Berg v. United States," } ]

[ { "docid": "15181301", "title": "", "text": "RUSSELL, Circuit Judge. The cause from which this appeal arises was a suit by the appellee Insurance Commissioner of Pennsylvania, and as such statutory liquidator of the Keystone Mutual Casualty Company (dissolved), seeking to recover from the defendant upon a stated account of premiums alleged to have been collected by him on numerous specified policies under the terms of an agency contract. The total sum claimed to have been withheld was $5,996.03. Appellant Robertson had been the agent at Tallahassee of the Keystone Mutual Casualty Company prior to the time the company failed and its assets were taken over by appellee as statutory liquidator under the laws of Pennsylvania. In his first answer, sworn to by Robertson, and signed by Weaver and Cook as attorneys for the defendant, the defendant admitted “that he withheld monies collected by him belonging to Keystone Mutual Casualty Company (dissolved) two or three months prior to its being declared insolvent, but as to exact amount withheld he does not know. Said monies were withheld from said company by defendant in the belief said company would soon be declared insolvent and that would be his only chance to collect monies due him by said company for services hereinafter set out.” The defendant alleged an indebtedness due him by the plaintiff in the amount of $5,253.00 representing fees and expenses under an alleged agreement whereby the defendant was employed as an adjuster of certain claims against the Casualty Company. He likewise sought recovery of $1,345.88 said to have been paid to another agent to whom he transferred certain of the business at the suggestion of the Casualty Company shortly prior to its being declared insolvent. Judgment was prayed for these sums, against which the defendant offered to have set off plaintiff’s demand, with judgment in his favor for the balance. In answer to the cross>-claim the plaintiff asserted it failed to state a claim upon which relief could be granted; denied the indebtedness; and alleged that if defendant had any claim it was incumbent upon him to file it in the liquidation proceeding in compliance with the" } ]

[ { "docid": "20259461", "title": "", "text": "of promissory or equitable estoppel are met, then a promisee may enforce an otherwise unenforceable contract.” Under Texas law, promissory estoppel requires that “the agreement that is the subject of the promise must comply with the statute of frauds. That is, the agreement must be in writing at the time of the oral promise to sign it.” The district court concluded that Sullivan had failed to allege all the elements necessary to bring his claim within the doctrine of promissory estoppel We assume without deciding that Sullivan’s amended complaint arguably alleged that Leor agreed to sign a specific written agreement. His promissory estoppel claim nevertheless fails because he affirmatively asserted in his response to Leor’s motion to dismiss that no written document was finalized, rendering him unable to satisfy the elements of promissory estoppel. Sullivan cannot now change his position. This admission bars Sullivan from taking a contrary position on appeal. With regard to equitable estoppel, some Texas courts have “refus[ed] to recognize [equitable estoppel] as a distinct cause of action separate from promissory estoppel or fraud.” It is also far from clear that Texas courts recognize “detrimental reliance” as a distinct cause of action. We do not resolve either of these issues here because Sullivan has failed to allege reliance damages. Recovery under an estoppel or reliance theory is “limited to reliance damages,” which “put the promisee in the position he would have been in had he not acted in reliance upon the promise.” Sullivan has not alleged reliance damages, and instead is seeking damages based on the compensation provisions in a draft contract. Sullivan also does not dispute that he was paid a salary for his services. Sullivan has not stated a claim based on an estoppel theory. VI Sullivan further asserts that the district court erred in dismissing his quasi-contract claims for quantum meruit and unjust enrichment. He acknowledges that he received a salary from Leor but contends that this does not preclude him from recovering under a quantum meruit theory since he was not “fully compensated” by Leor. Quantum meruit is an equitable claim whereby one" }, { "docid": "23532100", "title": "", "text": "to transport the bodies of soldiers buried overseas to this country. The plaintiffs were to be paid a commission by a manufacturer of the caskets if it got a contract for their purchase by the government. When the government did not purchase the caskets, the plaintiffs sued the government for a commission or fee on an alleged implied-in-fact contract. We held in that case that the plaintiffs were acting as salesmen or promoters for the manufacturer and expected to get their compensation from it, and that they had no basis for recovery against the government on an implied-in-fact contract theory. Our decision in that case is squarely against the plaintiff in the instant case. In the case before us, the conduct of the parties, as detailed above, shows that the plaintiff did not expect, and the Embassy did not expect, that the government was going to have to pay a commission to the plaintiff if it purchased the HSP plan. The plaintiff was acting as a salesman for the insurance companies he represented, and they were to pay him a commission if they got the business. We hold that there was no meeting of the minds inferred from the conduct of the parties that met the requirements of an implied-in-fact contract between them for the payment of a commission by the Embassy to the plaintiff, and that no such contract was created between them. Therefore, Count II must be dismissed. III. The Claim For Quantum Meruit Compensation As A Consultant In Count III the plaintiff contends that he should be paid compensation on a quantum meruit basis for acting as an insurance consultant for the Embassy. He alleges that the reasonable value of his services, based on custom in the insurance industry is 10% of the premiums for 10 years which in this case would be $360,000. In the alternative, he says that his customary rate of pay for consultation and the reasonable value of his services is $135.00 per hour, and that he spent 1500 hours on this case. Therefore, he alleges that on this basis he should be" }, { "docid": "16984651", "title": "", "text": "PER CURIAM: Plaintiffs-Appellants (“the Robertsons”) sued the Defendants-Appellees, (collectively, “the NMC”) under the Americans with Disabilities Act of 1990 (“the ADA”), as well as other state-law claims, alleging that the NMC had discriminated against Dr. Robertson in firing him. Robertson claims that the NMC failed to make reasonable accommodations for his Attention Deficit Hyperactivity Disorder (“ADHD”). The district court entered summary judgment in favor of the defendants on the claims under the ADA, but remanded the Robertsons’ state-law claims, including a claim under the Louisianians with Disabilities Act (“the LDA”), back to state court for further proceedings. The Robert-sons now appeal from the grant of summary judgment, and the NMC appeals from the remand of the state-law claims. For the following reasons, we affirm. I. Background and Procedural History Plaintiff, Dr. James Robertson, had been a neurologist at the NMC in Baton Rouge since 1981. He was a shareholder in the NMC Corporation and was working under an employment contract until the time of his termination. In May 1994, at the suggestion of one of his colleagues, Robertson was tested and diagnosed with ADHD. Approximately four months later, he was terminated from his employment with the NMC. Robertson contends that he was wrongfully discharged because of his diagnoses of ADHD and that reasonable accommodations were recommended, but never implemented. The NMC contends that certain of Robertson’s work-related problems predated his diagnosis of ADHD, and that those problems resulted in his termination “for cause” as provided in his employment contract. Originally filed in Louisiana state court, the Robertsons filed suit against the NMC and various individual doctors alleging violations of the ADA as well as a similar claim under the LDA and other state-law causes of action. Later, the NMC removed the ease to federal court on the basis of the ADA claim. Upon a motion filed by the NMC, the court granted summary judgment on the ADA claim, finding that no genuine issue of material fact existed on whether Dr. Robertson was a “qualified individual” able to recover under the ADA. Declining to exercise supplemental jurisdiction over the remaining state-law" }, { "docid": "22572340", "title": "", "text": "was annulled by his disbarment, which put him in the same position as if he had voluntarily, wrongfully, and without just cause abandoned the case. “It follows that immediately upon the entry of the decree of disbarment, every contract of employment as attorney, entered into by respondent, was annulled. Such annulment was brought about by his own wrongdoing, and was therefore as much of a voluntary annulment of his contracts of employment as attorney as though he had expressly refused to perform such contracts, or had accepted an office which disqualified him to perform his contracts.” Egan v. Waggoner, 41 S.D. 239, 170 N.W. 142, 143. Upon remand, his complaint was amended, and his bankruptcy trustee sought to recover on a theory of quantum meruit and obtained a judgment for the services performed thereunder to the date of disbarment. The trial court apparently allowed recovery on the contract. On appeal, the court stated the question as follows: “Accepting the law of the case as established on the former appeal, and bearing in mind the essential nature of a contingent fee contract, the question is whether or not an attorney, who has partly, but not substantially, performed a contract for the rendition of personal services, for a compensation payable only in the event of final and successful termination, who has willfully and intentionally abandoned said contract without cause before completion, can recover for services rendered prior to such abandonment, and, if so, upon what basis ?” The court then decided that as the disbarment annulled the contract, he could not recover for part performance under the joint enterprise. Davenport v. Waggoner, 49 S.D. 592, 207 N.W. 972, 974, 45 A.L.R. 1126. The quantum meruit theory was apparently abandoned on appeal. A precisely similar rule was applied by District Judge Patterson (afterwards Circuit Judge) in Re Woodworth, D. C., 15 F.Supp. 291, 293, affirmed, 2 Cir., 85 F.2d 50. The case involved the rights of a disbarred attorney under a contingent fee contract. It was held the disbarment put an end to the contract. “On principle it cannot be doubted that when" }, { "docid": "22860941", "title": "", "text": "appeal. Accordingly, She- hee has failed to set forth a valid equal protection claim against the defendants. IV. For the foregoing reasons, we find that Shehee has not set forth a valid claim that Crosley, Hambrick, Henry, Miner, Lutt-rell, Fleming or Morgan violated a clearly established constitutional right. We therefore REVERSE the judgment of the district court denying qualified immunity to the defendants and REMAND this case to that court for further proceedings in accordance with this opinion. . In Bivens, the Supreme Court held that when \"a federal agent acting under color of his authority” violates the Constitution, the agent’s victim may recover damages against the agent. 403 U.S. at 389, 91 S.Ct. 1999. . In addition to his claims regarding his firing from the commissary, Shehee alleges that Robertson retaliated against him by charging an excessive mark-up on Shehee’s request for ceramics materials that were necessary for participation in a ceramics class. Shehee contends that the typical mark-up would be five percent for materials from a retailer; however, Robertson charged him a twenty-five to thirty percent mark-up typical for materials from a distributor. Shehee claims that Robertson deliberately misclassified Shehee’s order as being one for a distributor so that the excessive mark-up could be charged. Shehee further claims that Robertson knew that he could not afford that amount and, therefore, would be deprived of participation in the ceramics class. . The order inexplicably omitted Henry’s name from that dismissal. Following the court’s reasoning, however, that omission was merely an oversight. . Although Defendant Robertson was named in the notice of appeal, he did not file a brief and apparently has abandoned this appeal. . In Thaddeus-X, we clarified the difference between retaliation claims arising under the Due Process Clause of the Fourteenth Amendment and those arising under a more specific provision of the Constitution. See 175 F.3d at 387. For substantive due process claims, the retaliatory act must \"shock the conscience.” Id. For those claims arising from an enumerated constitutional violation, however, the retaliatory act does not have to reach the heightened standard of shocking the conscience. See" }, { "docid": "6016951", "title": "", "text": "reasonable value of the services rendered would undermine the legislative purpose. Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521, 277 N.Y.S.2d 268, 223 N.E.2d 793 (1966). Thus, overruling a line of intermediate appellate decisions, the court precluded recovery under quantum meruit when the requirements of the Statute of Frauds have not been met. The cited decision would be dis-positive of the instant case were it not for the failure of plaintiff’s counsel to plead the Statute of Frauds as required by F.R.Civ.P. 8(c). As a result, under F.R.Civ.P. 12(h), plaintiff must be held to have waived this objection, and we reach the merits of the intervenors’ claim. Neither side disputes the court’s clearly correct finding of fact that there was no agreement reached between Hunt and Mrs. Hardy-Latham as to the compensation she would pay the finders. In New York, absent Statute of Frauds considerations, “where a litigant fails to establish the right to recover upon an express contract he may, in the same action, recover in quantum meruit.” Smith v. Kirkpatrick, 305 N.Y. 66, 73, 111 N.E.2d 209, 213 (1953). Quantum meruit is available where services are performed pursuant to a contractual relationship and benefits conferred by one party are retained by another. See McKeon v. Van Slyck, 223 N.Y. 392, 119 N.E. 851 (1918). The District Court was therefore correct in adopting a quantum me-ruit approach in the instant case where Hunt and Barnes supplied Mrs. Hardy-Latham the name of a seller and the details of his business under circumstances indicating an agreement to pay for such information should she put it to profitable use. The reasonable valuation of a broker’s commission determined on a quantum meruit basis is a question for the trier of fact. See McKeon v. Van Slyck, supra; Eadie v. Arc Wood Development, 19 Misc.2d 98, 189 N.Y.S.2d 340 (1959); Gibson v. Archer Productions, 281 App.Div. 661, 117 N.Y.S.2d 438 (1952). The District Court did make such a finding here, and under F.R.Civ.P. 52(a) the finding is not to be disturbed unless “clearly erroneous.” The only evidence as to the customary finder’s fee" }, { "docid": "19192990", "title": "", "text": "thus indicating that he was not qualified for a courier position. Further, as with plaintiffs Lewis and Martinez, to the extent that the alleged discriminatory con duct took the form of termination, Robertson’s termination is not a “discharge” for purposes of the ADEA. Together with the absence of any evidence that establishes an inference of age discrimination, FedEx has offered an unrebutted, legitimate, nondiscriminatory reason for terminating Robertson. Although Robertson contends that FedEx improperly applied its policy regarding the use of vacation time when reporting for Temporary Restricted Work and disagreed with one physician’s opinion regarding his ability to work, there is no evidence that FedEx acted differently towards Robertson than it did towards younger couriers, and, as noted, a violation of company policy is insufficient for a finding of age discrimination. For all of these reasons, summary judgment is required as to Robertson’s claims. Plaintiff Nelson’s claim likewise must be dismissed. In fact, Nelson was 39 years old when she was terminated, and thus was not a member of a protected class. Nelson contends that she was “not permitted to return to work” when she recovered, but this bald contention forms an insufficient basis from which to infer an adverse employment action. Moreover, as with Lewis, Martinez, and Robertson, plaintiff Nelson was not qualified for the job in question, because she was injured, and likewise was not “discharged” for purposes of the ADEA. Finally, Nelson has failed to point to any evidence giving rise to an inference of age discrimination. Summary judgment is therefore required. Although each of the plaintiffs’ claims thus fails individually, the Court must also consider whether this changes when they are considered together. But, in fact, they have almost nothing in common that would make such analysis meaningful. To be sure, plaintiffs purport to rely on certain raw numbers and statistics that allegedly demonstrate that a disproportionally small number of FedEx couriers with twenty or more years of service reached full or “normal” retirement age at the company, see PL Exs. 54, 55, thus allegedly giving rise to an inference of age discrimination. Specifically, plaintiffs" }, { "docid": "23438893", "title": "", "text": "Moreland v. Devenney, 72 Kan. 471. As to the attorney’s-right to compensation on quantum meruit: It was the duty of the trustee to employ counsel to bring suit to recover the property belonging to the bankrupt. The fact that the contract between him and his attorney was champertous, even if its terms had been known, could not have been interposed by respondents to defeat the trustee’s suit. Burnes v. Scott, supra; Staub v. Sewanee Coal Co., supra, 509; Robertson v. Cayard, supra, 365; Boone v. Chiles, 10 Pet. 177, 219. They should have handed over the property to the trustee without suit because, as it was adjudged in that case, the bankrupt was the real owner. After judgment went against them in the Chancery Court, they petitioned the bankruptcy court to fix a reasonable fee for the trustee’s attorney. They did not then know of the existence of the contract, and, while they may successfully oppose payment of the amount therein provided for, they have no standing now to object to a reasonable fee. The attorney rendered valuable services in the • prosecution of a proper and legitimate suit. Through his efforts there was recovered more than- enough to pay expenses and debts in full. The trustee joins the attorney in asking that a reasonable fee be allowed. The making of the contract was not malum in se. The attorney’s right to fair and reasonable compensation is not forfeited. Brush v. City of Carbondale, 229 Ill. 144, 152; Stearns v. Felker, 28 Wis. 594, 597; In re Snyder, 190 N. Y. 66, 75; Gammons v. Johnson, 69 Minn. 488; Rust v. Larue, 4 Litt. (Ky.) 412, 428; Elliott v. McClelland, 17 Ala. 206, 209; Holloway v. Lowe, 1 Ala. 246, 248. The respondents cite cases which hold that champerty defeats the attorney’s right to recover on quantum meruit, but we think that they are not applicable to the facts of this case hereinbefore stated. The District Court held that the attorney’s fee should be paid out of the surplus as an expense of administration. It was decided that the suit" }, { "docid": "20120351", "title": "", "text": "such a list. His right to any commission was governed by the terms of the contract, and the record fully supports the conclusion that plaintiff did not reserve his right to the funds under the terms of the contract. Plaintiff’s second theory of recovery in this case is quantum meruit. In this jurisdiction, one cannot recover under quantum meruit when compensation of the parties is covered by a written contract. Standley v. Egbert, 267 A.2d 365, 368 (D.C. 1970) (quantum meruit recovery may not be had when compensation of the parties is covered by express written contract); Leba v. Sills, 175 A.2d 599, 600 (D.C.1961) (it has consistently been held that a plaintiff cannot claim or recover on a quantum meruit theory when the rights of the parties and the basis of compensation are covered by a special contract). Here there is clearly a written agreement outlining plaintiff’s compensation including circumstances in which he would not be paid. Contrary to plaintiffs arguments, there is no indication that the defendant breached this contract, therefore plaintiff is bound by the contract which bars payment on these facts. Under Fed.R.Civ.P. 56(e), a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations and denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial. See also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). This burden requires the non-moving party facing a motion under Rule 56 to introduce “significant, probative evi dence tending to support the complaint”. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1598, 20 L.Ed.2d 569 (1968). In view of the record in this case, the Court concludes that since there is no genuine issue for trial, defendant is entitled to summary judgment. . In the original complaint Merrill Lynch is named as the defendant, however the complaint has been amended to name L.J. Hooker, Merrill Lynch's successor in interest, as the defendant. . The address given on plaintiffs employment" }, { "docid": "18111905", "title": "", "text": "Recovery in quantum meruit is appropriate in order to prevent the unjust enrichment of the party benefited by the work. In re Chateaugay Corp., 139 B.R. 598, 606 (Bankr.S.D.N.Y.1992). In determining the amount of a quantum meruit claim, the court looks not only towards the benefit to the estate, but also to the bargain between the parties and the consideration due the creditor for providing such benefit. In re Ralph Lauren Womenswear, Inc., 197 B.R. at 777. As an initial matter, if the Court were to use the Employment Agreement as a yardstick in determining the value of post-petition services rendered by Arnold to the Company, then the Court notes that, as discussed in Section III(B) above, since Claimant is not entitled to either the Retention Bonus or the Termination Payment pursuant to the terms of the Employment Agreement, such use of the agreement does not benefit Claimant’s quantum meruit argument. Moreover, upon reviewing the post-petition services provided by Claimant to the Company, along with the compensation paid to Claimant in consideration of such services, the Court finds that Claimant has failed to establish that he was paid less than reasonable value for his efforts. The Court notes that Arnold was paid the $125,000 base salary set forth in the Employment Agreement through mid-March 2002, at which time he received a raise of approximately six percent that was not specifically provided for under such agreement. Claimant acknowledged that the raise resulted in his being paid more than the Employment Agreement stipulated. (Hearing Transcript at 18:18-22). Beyond receiving his base salary, Claimant also participated in Enron’s KERP. Claimant received $14,267 pursuant to the KERP, and was eligible to further receive between $100,000 and $200,000 under the KERP’s liquidation incentive program had he remained employed by the Company. (Hearing Transcript at 28:21-29:9). The purpose of the KERP is to enable Debtors to “provide a financial incentive for continued employment and assure its employees that they will be rewarded for dedicated service towards the Debtors’ reorganization effort.” (Debtors’ Motion for Approval of Key Employee Retention Program, March 29, 2002, at 3). “The KERP" }, { "docid": "20259452", "title": "", "text": "OWEN, Circuit Judge: William Sullivan appeals the district court’s dismissal of his state law claims against Leor Energy, LLC and Leor Energy LP (collectively Leor). For the following reasons, we affirm. I This case arises out of a contract dispute between Sullivan and Leor. Sullivan’s First Amended Complaint presents the facts as follows. Leor is an energy company with rights to certain oil and gas properties in Robertson County, Texas. Sullivan was introduced to Leor as a possible candidate to serve as its Chief Executive officer. Numerous discussions ensued for the next two months, and the parties “tentatively agreed” that Sullivan would become the Chief Executive Officer and President of Leor, Sullivan would commit 30% of his time to Leor’s business, and would receive a salary, addition al compensation, and equity in an entity that was to hold the Robertson County properties. Attorneys for Leor prepared drafts of an employment agreement, none of which either party signed. Leor attached to its answer to Sullivan’s Complaint a draft of an employment agreement, which Leor says was the last that the parties discussed. It is lengthy and detailed. The compensation provisions contemplated a base salary of $180,000 per year, a potential discretionary bonus, and a potential equity interest in an entity that was to be formed. Sullivan alleges that Leor promised to sign an agreement and that Sullivan therefore began working for the company. Leor represented to potential investors that Sullivan was its President and CEO, and Sullivan succeeded in securing financing for Leor that would enable it to commence exploration of the Robertson County properties. Shortly after that transaction was consummated, Leor terminated Sullivan’s employment without cause. A written employment agreement had never been executed. Sullivan sued Leor in state court, asserting claims under Texas state law for breach of contract, quantum meruit, unjust enrichment, fraud, equitable and promissory estoppel, and “detrimental reliance.” Leor removed the suit to federal district court based on diversity jurisdiction. The district court dismissed Sullivan’s amended complaint for failure to state a claim. Sullivan now appeals. He contends that the district court erred in concluding that" }, { "docid": "3791478", "title": "", "text": "and he was looking for investments wherever he could get them, and here was a fellow working for Morgan & Company who knew what Morgan & Company was going to do, and he at least thought that very beneficial.” An agreement for such a purpose would appear to be in violation of N.Y.Penal Law § 439, McK.Consol.Laws, c. 40, as defendant here asserts; and plaintiff has indignantly repudiated an insinuation so damaging to his own case and character. There is no suggestion of it in the record. The district judge seems to have been further offended because, as he stated, the defendant attempted to visit him in chambers, either after or, as the judge finally concluded, just before his decision. On this hearing, too, defendant’s counsel raised particular objections to Findings 18-22 — those finding the special contract proved, but too vague to be enforceable— on the grounds that they were inconsistent with the opinion. The judge agreed, holding them inconsistent with his view that no contract had been proved, and saying that the first 17 paragraphs dealing with the claim in quantum meruit were adequate for the recovery in any event. Later, however, he filed an order refusing to make any change in the findings and the judgment was entered on March 28, 1950. As they stand, therefore, there is a certain inconsistency or hiatus in the findings which we should find troublesome were we to accept them as filed. The first 17 set forth in some detail that plaintiff “at the request of defendant” rendered him valuable and beneficial services as “a personal adviser and consultant on financial matters” from April, 1935, to November, 1945, that these services included certain specified activities, that plaintiff is entitled to compensation for them “on a quantum meruit basis,” and that they were of the value of $38,100. There is no finding that the defendant promised to pay for these services ; nor was there any evidence to that effect. As we have seen, plaintiff stated specifically that he did not expect payment for them; he did expect the appointments as officer" }, { "docid": "8831376", "title": "", "text": "if it had not been transferred. . The FDIC also relies on evidence of the conduct of Bank One and the FDIC in an attempt to show that the parties intended that the Assistance Agreement modify in part the P & A Agreement. The court will consider extrinsic evidence of the parties' intent when a contract is found to be ambiguous. Because i 17.7 is unambiguous, the court cannot consider the FDIC’s extrinsic evidence of the parties' intent. . The FDIC's Fed.R.Civ.P. 30(b)(6) witness testified that the parties have not “otherwise mutually agreed” to a further adjustment of the Commencement Balance Sheet. Sherwin Koopmans Dep. at 237. . Because the terms \"manifest error” and \"omission” are separated by a comma, the court concludes that “manifest” only modifies the term “error.” See, e.g., Mitsui Mach. Distribution, Inc. v. Chase Manhattan Leasing Co. (Mich.), 1994 WL 706309, at *4 (Tex.App.1994, no writ). . The court denies the FDIC’s motion to strike Bank One's affirmative defenses to this counterclaim as moot. See supra note 5. . Under Texas law, a plaintiff has a right to recover in quantum valebant the reasonable value of goods sold and delivered as well as a right to recover in quantum meruit the reasonable value of services rendered. 64 Tex. Jur. 3d Restitution and Constructive Trusts §§ 2, 10 (1989). Recovery is based on a quasi-contract or a promise implied in law to pay the plaintiff. Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 154 (Tex.App.1988, writ denied) (citing Truly v. Austin, 744 S.W.2d 934 (Tex.1988)). Bank One asserts that under Texas law, the claim of quantum valebant has evolved into a quantum meruit cause of action. The court agrees with Bank One that in recent years Texas courts have addressed quantum valebant claims less frequently than they have quantum meruit claims. The cases do not indicate, however, that quantum valebant is no longer a distinct cause of action under Texas law. . Given the lack of case law discussing quantum valebant claims and the identical theories behind quantum valebant and quantum memit claims, the court will" }, { "docid": "13632656", "title": "", "text": "resulted in termination of the contract, Mountain States’ termination of DeBlasio was “wholly arbitrary.” The court there fore gave judgment in favor of DeBlasio, granting compensation for work completed prior to termination according to the contract rate. Prejudgment interest on this sum was not allowed. The court also dismissed with prejudice the counterclaims and third party complaints. From this judgment, both parties appeal. II. Money Awards A. Quantum Meruit Damages. In awarding damages to DeBlasio, the court limited recovery to the rates set in the subcontracts. DeBlasio contends that recovery in quantum meruit according to the reasonable value of its performance should be allowed, even in excess of the contract rate. This claim must be rejected. Typically the Washington state courts measure damages for breach of contract according to the contract rate, which reflects the parties’ expectations as to the value of performance. Diedrick v. School District 81, 87 Wash.2d 598, 610, 555 P.2d 825, 833 (1976). This is the general rule of contract law. Restatement of Contracts § 346(2), Comment d, Illustration 8 (1932). Recovery in quantum meruit is appropriate when the breaching party has been unjustly enriched through wrongful conduct. It may also be appropriate when the party aggrieved has been induced to perform to the breacher’s benefit beyond the scope of the contract. For example, applying Washington law this court allowed recovery in quantum meruit against a contractor who had willfully breached a contract and had intentionally induced the subcontractor to continue to perform and even to take over some of the contractor’s duties. Continental Casualty Co. v. Schaefer, 173 F.2d 5, 8 (9th Cir.), cert. denied, 337 U.S. 940, 69 S.Ct. 1517, 93 L.Ed. 1745 (1949). The Schaefer court relied upon a Washington Supreme Court decision allowing recovery in quantum meruit to deprive a tortfeasor of its wrongful gains. Olwell v. Nye & Nissen Co., 26 Wash.2d 282, 286-87, 173 P.2d 652, 654 (1946). In the instant case the court did not find that Mountain States had acted tortiously. Nor did it find that Mountain States had intentionally induced DeBlasio to perform beyond the scope of" }, { "docid": "13431084", "title": "", "text": "argued here — that the attorney was disobedient to instructions and that he acted contrary to the interest of his client. While these charges are denied, their truth or falsity should be determined upon testimony given with the. opportunity of cross-examination, and the issue should not be de7 cided upon affidavits alone. • At sueh a hearing it can be determined whether or not the attorney has so conducted himself in his professional obligations or employment as to deprive him of any recovery. The rule is that, where an attorney has been retained on a specific dontraet and was discharged for a justifiable cause, he may not recover compensation either in an action upon contract or upon a quantum meruit basis. The reason for this rule is that the contract of employment is entire and in order to earn his compensation, the attorney is subject to the same test as every other contract performer; he must show full performance in accordance with his retainer in order to recover the stipulated compensation. Tenney v. Berger, supra; Martin v. Camp,supra. In the Flush Case, supra, this court, speaking through Judge Rogers, pointed out that, “if the application for substitution is based on the misconduct of an attorney, it has been held that the court may direct an unconditional substitution, and order that he give up the papers without payment of his fees, and leave Mm to bring action for his fees” (citing Sloo v. Law, Fed. Cas. No. 12,958). So that both client and the attorney may have a full opportunity to litigate these issues, we shall refer the issues to William Parkin, Esq., to hear and determine. He will determine, first, whether or not the attorney is entitled to any compensation; and, second, if so, how much, having due regard for the contingent character of the employment, the discharge and the reasons therefor, the character of the services rendered and the value thereof. The master will report to the District Court. • Judge HAND concurred in these views, hut, owing to his absence, has not examined this opinion. The order is" }, { "docid": "17874616", "title": "", "text": "to formulate a common law right of contribution when a penalty is assessed under section 6672. Thus, even if this Court construes the cross-claim of Miller and Robertson as alleging a breach of contract or fiduciary duty, the cross-claim still fails to state a claim upon which relief can be granted. Therefore: IT IS ORDERED that the motion of the plaintiffs, American Bank and Trust Company and Jules L. Rebelle, III, to dismiss the cross-claims of Guy W. Miller and George A. Robertson, Jr., for failure to state a claim upon which relief can be granted be, and it is hereby GRANTED. . On April 19, 1984, the Court approved the following Stipulation of Dismissal as to certain claims in the case: “Plaintiffs American Bank and Trust Company and Jules L. Rebelle, III, the defendant United States of America, stipulate and agree as follows: 1. American Bank and Trust Company hereby dismisses its complaint against the United States in this matter, with prejudice; 2. Jules L. Rebelle, III, hereby dismisses its complaint against the United States in this matter, with prejudice; 3. The United States of America dismisses its counterclaims asserted pursuant to 26 U.S.C. § 6672 against plaintiffs American Bank and Trust Company and Jules L. Rebelle, III, with prejudice; 4. The United States of America dismisses its counterclaim asserted pursuant to 26 U.S.C. § 3505(b) against plaintiff American Bank and Trust Company, with prejudice; 5. The parties to this stipulation agree to each bear their respective costs, including any possible attorneys’ fees or other expenses of litigation as against each other; 6. Nothing in this stipulation shall be construed as a waiver by the parties to this stipulation to any conceivable claim or defense which they may have against any other party, and by this stipulation the United States expressly does not waive any claim which it may have against George A. Robertson, Jr., or Guy W. Miller.” Thus, the only claims now pending are the government’s third party claim against Robertson and Miller and Miller’s and Robertson’s cross-claim against American and Rebelle. In view of the Court’s" }, { "docid": "22572343", "title": "", "text": "relinquish the suit by reason of disbarment. His inability to perform his contract is the consequence of his own wrong.” Kimmie v. Term. R. R. Association, 344 Mo. 412, 126 S.W.2d 1197, carries the rule one step further and holds squarely that no recovery may be had on a quantum meruit either. An attorney employed on a contingent fee basis had obtained two successive verdicts for his client, each of which was reversed on appeal. While the case was awaiting a third trial, he was suspended from practice. After another attorney had obtained a settlement for $15,000, the suspended attorney tried to collect compensation both on the contract and on quantum meruit. It was held he could not recover on either theory, because he was like an attorney who abandons a case. See also Moyers v. Graham, 15 Lea, Tenn., 57. Here, as we have seen, the suit is on the contract itself, which required the exercise by appellant of his services as an attorney at law in bringing the claim to final adjudication. The litigation begun by him in the Virginia state and federal courts failed, and immediately thereafter he was disbarred. There was then an apparent hiatus of about four years when, according to appellant’s allegations, he prepared a bill to be introduced in Congress which in turn failed to become a law, and thereafter a nearly similar bill, caused to be offered by Wool, was passed. Jurisdiction was vested in the Court of Claims to hear the cause, and it was in that court, in which appellant by reason of his disbarment some six or seven years prior to the time was unable to appear, that judgment was finally obtained. His case is, therefore, ruled by the decisions which we have mentioned and which we adopt and approve. This leaves only to be noticed appellant’s argument that the court below was not authorized to issue a summary judgment on defendant’s motion. The point is, first, that the court should have considered the case only on appellant’s complaint and should have ignored appellee’s answer and exhibits. But we" }, { "docid": "20259462", "title": "", "text": "or fraud.” It is also far from clear that Texas courts recognize “detrimental reliance” as a distinct cause of action. We do not resolve either of these issues here because Sullivan has failed to allege reliance damages. Recovery under an estoppel or reliance theory is “limited to reliance damages,” which “put the promisee in the position he would have been in had he not acted in reliance upon the promise.” Sullivan has not alleged reliance damages, and instead is seeking damages based on the compensation provisions in a draft contract. Sullivan also does not dispute that he was paid a salary for his services. Sullivan has not stated a claim based on an estoppel theory. VI Sullivan further asserts that the district court erred in dismissing his quasi-contract claims for quantum meruit and unjust enrichment. He acknowledges that he received a salary from Leor but contends that this does not preclude him from recovering under a quantum meruit theory since he was not “fully compensated” by Leor. Quantum meruit is an equitable claim whereby one who provides services to another may recover “based on an implied agreement to pay for benefits received.” Quantum meruit “does not arise out of a contract, but is independent of it.” Recovery should be allowed under this theory when “non payment for the services rendered would result in an unjust enrichment to the party benefited by the work.” The measure of damages in quantum meruit is the “reasonable value of the work performed.” Sullivan has failed to state a claim in this regard. As discussed, he concedes that Leor paid him a salary, and he has alleged no facts suggesting that the salary was unreasonable. As the district court noted, Sullivan is essentially arguing that he was not “fully compensated” since he did not receive the salary and the additional compensation set forth in the unsigned employment contract. But quantum meruit cannot be used to enforce the terms of an unsigned draft of a contract, and Sullivan has alleged no facts showing that the salary was not the “reasonable value” for the services he rendered." }, { "docid": "20259453", "title": "", "text": "the last that the parties discussed. It is lengthy and detailed. The compensation provisions contemplated a base salary of $180,000 per year, a potential discretionary bonus, and a potential equity interest in an entity that was to be formed. Sullivan alleges that Leor promised to sign an agreement and that Sullivan therefore began working for the company. Leor represented to potential investors that Sullivan was its President and CEO, and Sullivan succeeded in securing financing for Leor that would enable it to commence exploration of the Robertson County properties. Shortly after that transaction was consummated, Leor terminated Sullivan’s employment without cause. A written employment agreement had never been executed. Sullivan sued Leor in state court, asserting claims under Texas state law for breach of contract, quantum meruit, unjust enrichment, fraud, equitable and promissory estoppel, and “detrimental reliance.” Leor removed the suit to federal district court based on diversity jurisdiction. The district court dismissed Sullivan’s amended complaint for failure to state a claim. Sullivan now appeals. He contends that the district court erred in concluding that the statute of frauds bars enforcement of the compensation provisions in the unsigned contract. Alternatively, Sullivan argues that he falls within the partial-performance exception to the statute of frauds. He also argues that if the statute of frauds would otherwise apply, the district court erred in dismissing his contention that either promissory estoppel or equitable estoppel bars application of the statute of frauds. He further asserts that the district court erred in dismissing his claims for quantum meruit, unjust enrichment, and fraud, and abused its discretion in dismissing his claims without granting him leave to amend his complaint. II We review de novo a district court’s dismissal under Rule 12(b)(6), accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff. “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.” “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs" }, { "docid": "10031709", "title": "", "text": "government has actually paid in return for the amount of jet fuel Barrett has actually delivered. The object of the contract was not illegal, and the contract cannot be considered void as contrary to public policy. Nor is this a case where the government gratuitously paid money in excess of the amount demanded by the parties’ original express contract. There is no allegation that the CO lacked general authority to contract, and the procuring agency in fact had full authority to award a contract for the services at issue. Furthermore, the government has not alleged that Barrett breached the contracts, and in fact Barrett fully performed all that was expected of it under the parties’ express agreement. The government takes pains to assert that its counterclaims are based on a legal right, as opposed to an attempt merely to invoke the equitable remedy of quantum meruit (which would call for some underlying right to recovery ). The government’s only basis for characterizing the contract payments here as “erroneous overpayments”, however, is a comparison between the actual payments and the payment figures arrived at under the court-created Platt’s EPA clause. The government’s supposed “independent right” to recover in this case is thus dependent both on Barrett’s having sought quantum meruit relief and on the court having devised a substitute EPA clause to help measure the appropriate boundaries of that relief. The government cites no cases, and the court has found none, in which quantum meruit has been used affirmatively by the government in a similar situation to recover monies from a contractor. Indeed, it would be surprising if such cases existed. See Missouri Utilities Co. v. City of California, Mo., 8 F.Supp. 454, 468 (W.D.Mo.1934)(“He who seeks equity must do equity. And the action for money had and received is governed by equitable principles. Neither then could the United States recover from [a contractor] in an action for money had and received, not in the form of a mere gratuity, but upon conditions met and performed”). No equity lies with the government here. It drafted the contract and inserted the defective" } ]

[ { "docid": "11158431", "title": "", "text": "section of the Code, 28 U.S.C. § 1651(a), reading: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” It is asserted that the order denying plaintiffs’ belated claim for a jury trial was improper and constituted an abuse of discretion, wherefore we are asked to issue a writ of mandamus commanding Judge Sweeney to grant to the petitioners a jury trial. Petitioners are no doubt aware from our recent opinion in In re Chappell & Co., Inc., 1 Cir., 1953, 201 F.2d 343 that applications of this sort meet with a very inhospitable reception in this court. We have rejected the notion that 28 U.S.C. § 1651 is a substantive grant to us of jurisdiction to review in our discretion any unappealable interlocutory decision which we may think it would be desirable to review at once, without waiting for an appealable final decision below. The basic purpose of § 1651, and of its statutory predecessors, was to assure to the various federal courts the power to issue appropriate writs and orders of an auxiliary nature in aid of their respective jurisdictions as conferred by other provisions of law. It is recognized that there may be appropriate circumstances for the exercise of power under 28 U.S.C. § 1651, both in cases where our appellate jurisdiction has already attached and in cases where we have merely a potential appellate jurisdiction to review a final decision not yet rendered. An instance of the former is Price v. Johnston, 1948, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, where the court of appeals had jurisdiction of a pending appeal in a habeas corpus case, and it was held that that court had power under the all-writs section to issue a writ in the nature of a writ of habeas corpus to enable the petitioner to appear before the court to argue his case pro se. McClellan v. Carland, 1910, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762, is" } ]

[ { "docid": "11881580", "title": "", "text": "her action in this matter, she seeks to have her job reinstated, to have her full employment benefits restored and back benefits to which she would have been entitled, and she seeks her full costs of litigation, including reasonable attorney’s fees. Not until her post-trial brief in the form of proposed findings of fact and conclusions of law did Harris seek compensatory and punitive damages. Richards contends that this belated demand for damages deprived it of its right to request a jury trial on that claim. “[T]he Seventh Amendment guarantees a jury trial where a plaintiff is seeking legal relief, either compensatory or punitive damages, even though the right to such relief is created by a federal statute.” Moore v. Sun Oil Co., 636 F.2d 154 (6th Cir. 1980), citing Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). To the extent that a plaintiff is seeking legal relief under Section 1981, the parties are entitled to a jury trial. Moore, supra. In an action brought under Title VII and Section 1981, both parties have a right to a jury trial on the legal claims stated under Section 1981. Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316 (8th Cir. 1981); Cf. Amburgey v. Cassady, 507 F.2d 728 (6th Cir. 1974). (Plaintiff, alleging a violation of 42 U.S.C. Section 1983 and seeking both equitable and legal relief, was entitled to a jury trial on the legal issues.) This action originated as one seeking only equitable relief and remained in that posture throughout the pleading stage and the trial. Richards was in no position to assess the situation and demand a jury trial. Had Harris, at some point in the proceedings, amended her pleadings to include a prayer for legal relief, Richards could have then demanded a jury trial. See Bereslavsky v. Kloeb, 162 F.2d 862 (6th Cir.), cert. denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947); Bereslavsky v. Caffey, 161 F.2d 499 (2d Cir.), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947). But Harris failed to take such action" }, { "docid": "11914707", "title": "", "text": "long since been waived. Gulbenkian v. Gulbenkian, 2 Cir., 147 F.2d 173, 158 A.L.R. 990; Fidelity & Deposit Co. of Md. v. Krout, 2 Cir., 157 F.2d 912; Moore v. United States, 5 Cir., 196 F.2d 906; American Fidelity & Cas. Co. v. All American Bus Lines, 10 Cir., 190 F. 2d 234, certiorari denied 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642; F.R. 38(b), (d). In view of this we do not reach the question as to the propriety of conditioning leave to amend on a non-jury trial where the jury-trial right as to the amended claim is otherwise clear, see Parissi v. Foley, 2 Cir., 203 F.2d 454; Westcott v. U. S. Fidelity & Guaranty Co., 4 Cir., 158 F.2d 20; 5 Moore’s Federal Practice 327, 328 (2d Ed. 1951), or as to the applicability or the presently compulsive force of Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; cf. the case below, Bereslavsky v. Socony-Vacuum Oil Co., D.C.S.D.N.Y., 7 F.R.D. 444, 445, 447, also Fanchon & Marco v. Paramount Pictures, 2 Cir., 202 F.2d 731, 734. Petition denied." }, { "docid": "7154258", "title": "", "text": "701, 706, 47 S.Ct. 286, 71 L.Ed. 481. Referring to the 1948 Code the opinion stated: “The recodification of the All Writs Act in 1948, which consolidated old §§ 342 and 377 into the present § 1651(a), did not affect the power of the Courts of Appeals to issue writs of mandamus in aid of jurisdiction. * * Since the Court of Appeals could at some stage of the anti-trust proceedings entertain appeals in these cases it has the power in proper circumstances as here to issue writs of mandamus reaching them.” The statement appears to be particularly pertinent in view of the fact that the dissenting opinion refers with approval to the distinction made in In re Josephson, supra, between the power conferred by the earlier and present day code provisions. This review indicates to us that it was the exceptional circumstances involved in Ex parte Simons, supra, namely the deprivation of the constitutional right of trial by jury, that accounted for the issuance of the writ, rather than the existence of a broader power under the former code than now exists under the present all writs section. In any event we have previously ruled on the question in Bereslavsky v. Kloeb, 6 Cir., 162 F.2d 862, certiorari denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393, in which we issued the writ in order to protect the right of trial by jury. Other Courts of Appeals have ruled likewise. Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, 501, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; Canister Co. v. Leahy, 3 Cir., 191 F.2d 255, certiorari denied 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669. Compare: In re Previn, 1 Cir., 204 F.2d 417, where the right to a jury trial was a matter within the discretion of the Court. Our previous ruling is controlling. Our conclusion to entertain the Applications for the writ brings us to a consideration of whether the action against the Trustee and the Bank is a suit at common law in which the right of trial by jury" }, { "docid": "7154259", "title": "", "text": "power under the former code than now exists under the present all writs section. In any event we have previously ruled on the question in Bereslavsky v. Kloeb, 6 Cir., 162 F.2d 862, certiorari denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393, in which we issued the writ in order to protect the right of trial by jury. Other Courts of Appeals have ruled likewise. Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, 501, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; Canister Co. v. Leahy, 3 Cir., 191 F.2d 255, certiorari denied 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669. Compare: In re Previn, 1 Cir., 204 F.2d 417, where the right to a jury trial was a matter within the discretion of the Court. Our previous ruling is controlling. Our conclusion to entertain the Applications for the writ brings us to a consideration of whether the action against the Trustee and the Bank is a suit at common law in which the right of trial by jury is guaranteed by the Seventh Amendment, or is an equitable action in which trial by jury is not a matter of right. Rule 38(a), Rules of Civil Procedure, 28 U.S.C.; Parsons v. Bedford Breedlove & Robeson, 3 Pet. 433, 446, 447, 7 L.Ed. 732; Grant v. Pilgrim, 9 Cir., 95 F.2d 562, 564, 572-573. There is no difference between the parties about the settled rule that although Rule 2 of the Rules of Civil Procedure provides that there shall be only one form of civil action, it did not abolish the historic distinction between legal and equitable actions. If prior to the adoption of the Rules, an action was legal it remained so under the Rules and is triable by jury as of right; if equitable by nature, it remained so and is not triable by jury as of right. Bereslavsky v. Kloeb, supra, 6 Cir., 162 F.2d 862, certiorari denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393; Bradley v. United States, 214 F.2d 5, 7. It seems clear that Continental’s action against" }, { "docid": "903526", "title": "", "text": "after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.” . 35 U.S.C. § 67 (1946 ed.). . 35 U.S.C. § 70 (1946 ed.). . Bereslavsky v. Caffey, 161 F.2d 499 (2 Cir.), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947); Eastman Kodak Co. v. McAuley, 2 F.R.D. 21, 24 (S.D.N.Y.1941); Bellevance v. Plastic-Craft Novelty Co., 30 F.Supp. 37, 38 (D.Mass.1939). . The principle often appears in dictum later cited as authoritative. See Barton v. Barbour, 104 U.S. 126, 133-134, 26 L.Ed. 672 (1881); Innersprings, Inc. v. Joseph Aronauer, Inc., D.C., 27 F.R.D. 32 (1961); Bellavance v. Plastic-Craft Novelty Co., supra 30 F.Supp. at 38-39. . Rule 2 provides: “There shall be one form of action to be known as ‘civil action’.” . See Packwood v. Briggs & Stratton Corp., 195 F.2d 971 (3 Cir.), cert. denied 344 U.S. 844, 73 S.Ct. 61, 97 L.Ed. 657 (1952), in which we approved judgment n. o. v. after a jury trial because the evidence did not justify the jury’s finding of invention and validity; Nachtman v. Jones & Laughlin Steel Corp., 235 F.2d 211 (3 Cir. 1956), cert. denied 352 U.S. 971, 77 S.Ct. 363, 1 L.Ed.2d 324 (1957), affirming 134 F.Supp. 392, 393-394 (W.D.Pa.1955); Bentley v. Sunset House Distributing Corp., 359 F.2d 140, 143 (9 Cir. 1966), and cases there cited. . See Bereslavsky v. Kloeb, 162 F.2d 862, 863-864 (6 Cir.), cert. denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947); Bereslavsky v. Caffey, 161 F.2d 499, 500 (2 Cir.), cert. denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947); Railex Corp. v. Joseph Guss & Sons, Inc., 40 F.R.D. 119, 123 (D.D.C.1966). . The Revision Notes to § 281 accompanying the Senate Judiciary Report on the Patent Act of 1952 state: “Section 281 serves as an introduction or preamble to the following sections, the modern term civil action is used, there would be, of course, a right to a jury trial when no injunction is sought.” Senate Rep. No." }, { "docid": "6634294", "title": "", "text": "recalled that in areas such as patent, copyright, trademark infringement and unfair competition, where claims both “at law” and “in equity” frequently arise out of the same transaction, the plaintiff alone can control the right to trial by jury merely by the way in which his complaint is framed. See: Bereslavsky v. Kloeb, 6 Cir., 1947, 162 F.2d 862, 863-864; Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, 500, certiorari denied 1947, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, 468; Bruckman v. Hollzer, 9 Cir., 1946, 152 F.2d 730, 731-732; Ross v. Plastic Playthings, Inc., D.C.S.D.N.Y.1956, 138 F.Supp. 887, 888-889; Van Alen v. Aluminum Co. of America, D.C.S.D.N.Y. 1942, 43 F.Supp. 833, 835; Protexol Corp. v. Koppers Co., D.C.S.D.N.Y.1951, 12 F.R.D. 7, 8-9; Berlin v. Club 100, D.C.D.Mass.1951, 12 F.R.D. 129, 130; cf. 4 Pomeroy, Equity Jurisprudence §§ 1354, 1355 (5th ed. 1941). To hold that a plaintiff, by the language of his pleading, can in effect control the mode in which this Court may determine whether or not it has jurisdiction of the subject matter of a cause would appear but a throwback to the days when form ruled over substance. In any event, the problem of whether jurisdictional-fact issues must be submitted to the jury is not necessarily confronted in the case at bar. For here plaintiff invokes the equity jurisdiction of this Court [Briggs v. United Shoe Machinery Co., 1915, 239 U.S. 48, 50, 36 S.Ct. 6, 60 L.Ed. 138], seeking an injunction to restrain future infringement and an accounting of profits derived from past infringement and unfair competition, together with a money judgment incidental to the equitable relief asked. Cf.: Chappell & Co. v. Palermo Cafe Co., 1 Cir., 1957, 249 F.2d 77, 80-82, affirming D.C.D.Mass.1956, 146 F.Supp. 867; Coca-Cola Co. v. Old Dominion Beverage Corp., 4 Cir., 1921, 271 F. 600, 602; Folmer Graflex Corp. v. Graphic Photo Service, D.C.D.Mass.1941, 41 F.Supp. 319, 320; see: Clark v. Wooster, 1886, 119 U.S. 322, 325, 7 S.Ct. 217, 30 L.Ed. 392; Beaunit Mills v. Eday Fabric" }, { "docid": "4127299", "title": "", "text": "1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965). Here, however, there was no waiver of the right. The original complaint requested only injunctive relief and was not triable by jury as a matter of right. The amended complaint requested additional relief in the form of money damages and was triable by jury as a matter of right. The jury demand made in the amended complaint was therefore, timely. See Bereslavsky v. Kloeb, 162 F.2d 862 (6th Cir. 1947), cert. denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947), Bereslavsky v. Caffey, 161 F.2d 499 (2d Cir. 1947), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947). As we have noted before, “[i]n the exercise of sound discretion, the granting of leave to amend can be conditioned in order to avoid prejudice to the opposing party.” Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788, 791 (6th Cir. 1963). A requirement that the amendment be filed by a specified date or that the party amending bear a portion of the additional cost to the opposing party would, in proper circumstances, be reasonable conditions. Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965). The circumstances may even warrant, as was the case in Parissi v. Foley, 203 F.2d 454 (2d Cir. 1953), rev’d on other grounds, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867, the condition that the case continue to be tried to the court, even though the amendment raises issues triable to a jury. But it is our opinion that the circumstances must indeed be exceptional before a party is required to forego his constitutional right to a trial by jury. “The federal policy favoring jury trials is of historic and continuing strength,” Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed. 691 (1963), and any doubt should be resolved in favor of permitting a jury trial. Nice v. Chesapeake and Ohio Ry., 305 F.Supp. 1167, 1185 (W.D.Mich.1969). See AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150 (10th Cir. 1965). Here the amendment" }, { "docid": "5395405", "title": "", "text": "held that the circuit court of appeals should have issued an order to the judge of the circuit court to show cause why a writ of mandamus should not be issued directing him to vacate his stay order. We applied and followed McClellan v. Carland in In re President and Fellows of Harvard College, 1 Cir., 1945, 149 F.2d 69. See also Ex parte United States, 1932, 287 U.S. 241, 245-246, 53 S.Ct. 129, 77 L.Ed. 283. No such situation is presented in the case before us. Our only jurisdiction is a, potential appellate jurisdiction to review a final decision of the district court in the pending action, under 28 U.S.C. § 1291, on which appeal it would of course be our duty incidentally to review any interlocutory rulings or orders in so far as they might have affected the validity of the final judgment under review. The order of Judge Ford now in question does not in any way tend to frustrate or impede our exercise of such eventual appellate jurisdiction. In support of their position, petitioners have cited Bruckman v. Hollzer, 9 Cir., 1946, 152 F.2d 730; Bereslavsky v. Caffey, 2 Cir., 1947, 161 F.2d 499; Bereslavsky v. Kloeb, 6 Cir., 1947, 162 F.2d 862; Canister Co. v. Leahy, 3 Cir., 1950, 182 F.2d 510; Canister Co. v. Leahy, 3 Cir., 1951, 191 F.2d 255. At least some of these cases have distinguishing features. None of them contains much reasoned discussion of the jurisdictional problem and we do not stop to discuss them in detail. It is evident to us that our potential appellate jurisdiction to review a “final decision” in the copyright infringement action pending in the district court is not now in need of any “aid”. Whatever other courts have done, or might do, in a similar situation, we think that we would be playing fast and loose with the very limited authority conferred upon us by 28 U.S.C. § 1651 if by the device of a writ of mandamus we should undertake now to review and set aside the unappealable order by Judge Ford declining" }, { "docid": "14452092", "title": "", "text": "v. North American Co., 299 U.S. 248, 254, 57 S. Ct. 163, 165-166, 81 L.Ed. 153. The granting of the stay ordinarily lies within the discretion of the district court. In an appropriate case, mandamus is available to review a trial court’s grant or refusal of a stay of proceedings. La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, reh. denied, 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 560; Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185; Lutes v. United States District Court for the Western District of Oklahoma, 10 Cir., 306 F.2d 948, cert. denied 371 U.S. 941, 83 S.Ct. 320, 9 L.Ed.2d 275, reh. denied 371 U.S. 970, 83 S.Ct. 550, 9 L.Ed.2d 540. Mandamus, however, is a drastic remedy which will not be permitted for the purpose of reviewing interlocutory orders unless there is a clear abuse of discretion. Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377, reh. denied 352 U.S. 859, 77 S.Ct. 21, 1 L.Ed.2d 69, Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S. Ct. 145, 98 L.Ed. 106; CMAX, Inc. v. Hall, 9 Cir., 300 F.2d 265; Black v. Boyd, 6 Cir., 248 F.2d 156; In re Narragansett Pier Amusement Corp., 1 Cir., 224 F.2d 231, cert. denied 350 U.S. 862, 76 S.Ct. 103, 100 L.Ed. 765. Although it might appear advisable that the trial of the cases now pending be delayed until the appeals involving identical questions are decided, we are convinced that there is no clear showing of abuse of discretion by the trial court in denying the stay, nor do we think that mandamus is appropriate in this case to review the order of consolidation. We have concluded that the demand for a disqualification of one or more of plaintiff’s attorneys in the pending cases in the District Court is wholly without merit and does not warrant further discussion. The request for permission to file petitions for writs of mandamus and prohibition are Denied. . In Parr v. United" }, { "docid": "4156638", "title": "", "text": "v. Railway Co., 105 U.S. 189, 26 L.Ed. 975. But since this action was one in equity when instituted, expiration of the patent during the pendency of the action did not automatically or ipso facto transform the action into one solely at law in the sense that Pneumatic had the absolute right to a trial by jury of the issues of validity and infringement. It was within the sound judicial discretion of the court to retain equity jurisdiction for the purpose of determining-the issues of validity and infringement, and . at the same time grant a trial by jufy of the issue of damages in the event the patent was first sustained as to validity and, infringement. The cases of Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, certiorari, denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355, and Bereslavsky v. Kloeb, 6 Cir., 162 F.2d 862, certiorari denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393, are not to the contrary. In each of those cases, after the patent expired plaintiff amended his complaint so as to seek only money damages; and less than ten days after such amendment, plaintiff demanded trial by jury. Defendant moved to strike the demand; and purporting to act pursuant to Rule of Civil Procedure 38(b), 28 U.S.C.A., the trial court struck it. On mandamus arising out of the first case, and on appeal in the second, it was held in effect that since the demand for trial by jury was made within ten days after the amendment of the complaint, it should not have been stricken on the ground of being made out of time. Here, Hughes did not amend its complaint so as to seek only relief measured in money, and it did not demand a jury trial. It was Pneumatic, the defendant, who sought by its demand for jury trial to have the action discontinued as one in equity and treated as one at law after expiration of the patent. Finally, error is assigned upon the action of the court in denying the demand of Pneumatic for trial by" }, { "docid": "4127298", "title": "", "text": "a refusal to permit the Union to amend its complaint. This determination, however, is not dispositive of this issue. The question remains, if the circumstances do not justify refusal of permission to amend, do they warrant the condition to the amendment that no jury trial would be granted? The right to a jury trial is guaranteed by the Seventh Amendment and “occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). It becomes discretionary with the trial judge to grant a jury trial only when the right has been waived by failure to make a demand. But even when exercising its discretion under Rule 39(b) of the Federal Rules of Civil Procedure, “the court should grant a jury trial in the absence of strong and compelling reasons to the contrary.” Swofford v. B & W, Inc., 336 F.2d 406, 409 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965). Here, however, there was no waiver of the right. The original complaint requested only injunctive relief and was not triable by jury as a matter of right. The amended complaint requested additional relief in the form of money damages and was triable by jury as a matter of right. The jury demand made in the amended complaint was therefore, timely. See Bereslavsky v. Kloeb, 162 F.2d 862 (6th Cir. 1947), cert. denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947), Bereslavsky v. Caffey, 161 F.2d 499 (2d Cir. 1947), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947). As we have noted before, “[i]n the exercise of sound discretion, the granting of leave to amend can be conditioned in order to avoid prejudice to the opposing party.” Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788, 791 (6th Cir. 1963). A requirement that the amendment be filed by a specified date or that the party amending bear" }, { "docid": "10033394", "title": "", "text": "We think not. Since the Fahey decision, we have twice treated our Bereslavsky decision as still valid. Bank Line Ltd. v. United States, 2 Cir., 163 F.2d 133; Abbe v. New York, N. H. & H. R. Co., 2 Cir., 171 F.2d 387, 388. We agree with Moore, 5 Federal Practice (2d ed.) § 39.13[3], that Fahey did not over-rule Simons, since Fahey “did not involve the question of jury or non-jury trial.” Moore remarks that the prerogative writs “may with propriety be utilized to review an interlocutory order determining the mode and sequence of trial in a situation that justifies an- immediate review and where postponement until an appeal from a final judgment might be very prejudicial.” Decided since Fahey, yet in accord with Bereslavsky, are Canister Co. v. Leahy, 3 Cir., 191 F.2d 255, and In re Pan-American Life Insurance Co., 5 Cir., 188 F.2d 833, 834. 2. So we come to the merits of the petition. We assume, arguendo, that, having regard to the nature of the claims asserted in the complaint, petitioners would have been entitled to a jury trial. However, the demand here was too tardy. Rule 38(b) Fed.Rules Civ.Proc., 28 U.S.C.A., says that, in order to obtain such a trial “of right” as to “any issue,” the demand must be made “not later than 10 days after the service of the last pleading directed to such issue.” The last pleading directed to any issue raised by the complaint was petitioner’s answer, filed June 30, denying the complaint’s allegations. For the counterclaim related to a wholly distinct issue. Therefore, although we treat the order of July 10, striking the counterclaim, as the equivalent of a reply thereto, the jury demand, on July 14, was out of time, i. e., more than ten days after June 30. Petition denied on the merits. . See also Bereslavsky v. Kloeb, 6-Cir., 162 F.2d 862; Bruckman v. Hollzer, 9 Cir., 152 F.2d 730. . The effect of Fahey on other types of cases we need not here consider. But see Wolfson, Extraordinary Writs in the Supreme Court, 51 Col.L.Rev." }, { "docid": "14452093", "title": "", "text": "21, 1 L.Ed.2d 69, Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S. Ct. 145, 98 L.Ed. 106; CMAX, Inc. v. Hall, 9 Cir., 300 F.2d 265; Black v. Boyd, 6 Cir., 248 F.2d 156; In re Narragansett Pier Amusement Corp., 1 Cir., 224 F.2d 231, cert. denied 350 U.S. 862, 76 S.Ct. 103, 100 L.Ed. 765. Although it might appear advisable that the trial of the cases now pending be delayed until the appeals involving identical questions are decided, we are convinced that there is no clear showing of abuse of discretion by the trial court in denying the stay, nor do we think that mandamus is appropriate in this case to review the order of consolidation. We have concluded that the demand for a disqualification of one or more of plaintiff’s attorneys in the pending cases in the District Court is wholly without merit and does not warrant further discussion. The request for permission to file petitions for writs of mandamus and prohibition are Denied. . In Parr v. United States, 351 U.S. 513, 520-521, 76 S.Ct. 912, 917-918, 100 L.Ed. 1377; the court, speaking of writs of mandamus and prohibitions to district courts, said: “Such writs may go only in aid of appellate jurisdiction. 28 U.S.C. § 1651. The power to issue them is discretionary and it is sparingly exercised. Bule 30 of the Bevised Buies of this Court and the cases cited therein. This is not a ease where a court has exceeded or refused to exercise its jurisdiction, see Boche v. Evaporated Milk Assn., 319 U.S. 21, 26 [63 S.Ct. 938, 87 L.Ed. 1185], nor one where appellate review will be defeated if a writ does not issue, cf. Maryland v. Soper, 270 U.S. 9, 29-30 [46 S.Ct. 185, 70 L.Ed. 449], Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Boche v. Evaporated Milk Assn., supra, [319" }, { "docid": "15553678", "title": "", "text": "claim under 35 U.S.C.A. § 70, and asks for injunctive relief. Such a construction of the complaint is untenable. Section 70 specifically provides for the recovery of general damages in actions that are brought pursuant to its terms. Thus, once equitable relief is demanded the entire claim falls within, and is disposable under, the provisions of Section 70. .A separate action on the case for damages does not persist. The correct rule is clearly stated in Binger v. Unger, D.C.S.D.N.Y., 1946, 7 F.R.D. 121: “The issues of patent validity and infringement may be tried to a jury where the complaint seeks no injunctive relief or other equitable remedy.” Id. 7 F.R.D. at page 121. Jury trials in patent cases have been denied where an injunction against infringement was part of the relief sought. Bellavance v. Plastic-Craft Novelty Co., D.C.Mass., 1939, 30 F.Supp. 37; see, Beaunit Mills v. Eday Fabric Sales Corp., 2 Cir., 1942, 124 F.2d 563, 565-566. Accord: Bereslavsky v. Kloeb, 6 Cir., 1947, 162 F.2d 862, certiorari denied, 1947, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393; Bereslavsky v. Caffey, 2 Cir., 1947, 161 F.2d 499, certiorari denied, 1947, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355. Plaintiff urges further that defendant’s answer sets up two counterclaims triable by jury, and, inasmuch as the issues of the counterclaims are closely related to those raised by the .complaint, the whole case is, one for a jury. Defendant’s first counterclaim is for a declaratory judgment that plaintiff’s patent is invalid and not infringed. In addition, defendant seeks to have plaintiff enjoined from prosecuting any action charging infringement of the patent.. The second counterclaim asks treble damages under the anti-trust laws for restraints upon competition growing out of plaintiff’s conduct with regard to the allegedly invalid patent and trade secrets. There seems no doubt that, if timely demand is made, this claim is triable by jury as of right. Ring v. Spina, 2 Cir., 1948, 166 F.2d 546, certiorari denied, 1948, 33S U.S. 813, 69 S.Ct. 30, 93 L.Ed. 368; Hartford-Empire Co. v. Glenshaw Glass Co., D.C.W.D.Pa., 1943, 3" }, { "docid": "6634293", "title": "", "text": "for both the parties and the court. To compel the submission of those issues for jury determination is a cumbersome and costly procedure that seems to be plainly contrary to both the spirit and the letter of the Rules. See: Fed.R.Civ.P. 12(b) (1), 12(d), 12(h)(2), 41(b), 43(e), 52 (a). See also Hart and Wechsler, The Federal Courts and the Federal System, 719-723 (1953). Furthermore, as suggested above, the earlier decisions apparently encountered no problem in permitting the trial court to decide jurisdictional issues summarily, even in actions at law triable as of constitutional right to a jury. See: Globe Refining Co. v. Landa Cotton Oil Co., supra, 190 U.S. at pages 541, 547, 23 S.Ct. at pages 754-757; Wetmore v. Rymer, supra, 169 U.S. at page 121, 18 S.Ct. at page 295; Deputron v. Young, 1890, 134 U.S. 241, 250-253, 10 S.Ct. 539, 33 L.Ed. 923; Smith v. Greenhow, supra, 109 U.S. at pages 670-671, 3 S.Ct. at pages 421-422; Williams v. Nottawa, 1881, 104 U.S. 209, 212-213, 26 L.Ed. 719. Finally, it may be recalled that in areas such as patent, copyright, trademark infringement and unfair competition, where claims both “at law” and “in equity” frequently arise out of the same transaction, the plaintiff alone can control the right to trial by jury merely by the way in which his complaint is framed. See: Bereslavsky v. Kloeb, 6 Cir., 1947, 162 F.2d 862, 863-864; Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, 500, certiorari denied 1947, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, 468; Bruckman v. Hollzer, 9 Cir., 1946, 152 F.2d 730, 731-732; Ross v. Plastic Playthings, Inc., D.C.S.D.N.Y.1956, 138 F.Supp. 887, 888-889; Van Alen v. Aluminum Co. of America, D.C.S.D.N.Y. 1942, 43 F.Supp. 833, 835; Protexol Corp. v. Koppers Co., D.C.S.D.N.Y.1951, 12 F.R.D. 7, 8-9; Berlin v. Club 100, D.C.D.Mass.1951, 12 F.R.D. 129, 130; cf. 4 Pomeroy, Equity Jurisprudence §§ 1354, 1355 (5th ed. 1941). To hold that a plaintiff, by the language of his pleading, can in effect control the mode in which this Court" }, { "docid": "11881581", "title": "", "text": "1981, both parties have a right to a jury trial on the legal claims stated under Section 1981. Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316 (8th Cir. 1981); Cf. Amburgey v. Cassady, 507 F.2d 728 (6th Cir. 1974). (Plaintiff, alleging a violation of 42 U.S.C. Section 1983 and seeking both equitable and legal relief, was entitled to a jury trial on the legal issues.) This action originated as one seeking only equitable relief and remained in that posture throughout the pleading stage and the trial. Richards was in no position to assess the situation and demand a jury trial. Had Harris, at some point in the proceedings, amended her pleadings to include a prayer for legal relief, Richards could have then demanded a jury trial. See Bereslavsky v. Kloeb, 162 F.2d 862 (6th Cir.), cert. denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947); Bereslavsky v. Caffey, 161 F.2d 499 (2d Cir.), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947). But Harris failed to take such action until the end of trial and thereby deprived Richards of its right to demand a jury trial. In United States v. Pelzer Realty Co., Inc., 377 F.Supp. 121 (M.D.Ala.1974), aff’d 537 F.2d 841 (5th Cir. 1976), a ease analogous to the one sub judice, the cause, brought under 42 U.S.C. Section 3604, was considered on remand from the United States Court of Appeals for the Fifth Circuit. At that point, for the first time, the Government sought an award of damages. That court stated: While damages, even nominal damages, are proper relief for a violation of the Act, in the opinion of this Court, an award of damages, where none were prayed for or specifically proved and when the pleadings gave the Defendants no hint that damages were to be litigated so that the Defendants might litigate the issue or consider demanding a jury, would be a strange twist of the law in order to accommodate the Plaintiff. 377 F.Supp. at 123. Harris’ argument that the catchall phrase “and such other and further relief as" }, { "docid": "23028725", "title": "", "text": "later order. Beaunit Mills v. Eday Fabric Sales Corp., 2 Cir., 124 F.2d 565, 565; 55 Harv.L.Rev. 861; 20 Tex.L. Rev. 619. Thus here the district court’s suggestion of an amendment indicates no intent to deprive the plaintiff of a jury finally or arbitrarily. Apparently the court was looking for a separate statement of claims, which is largely a matter of trial discretion — even though there is no basis in modern procedure for finding a dichotomy of “causes of action” between law and equity. Cf. Original Ballet Russe v. Ballet Theatre, 2 Cir., 133 F.2d 187; Munson Line v. Green, 2 Cir., 165 F.2d 321; Reeves v. Beardall, 316 U.S. 283, 285, 62 S.Ct. 1085, 86 L.Ed. 1478; Clark, Code Pleading, 2d Ed. 1947, 137, 146-148, 444, 463, 475; F.R. 10(b). And the grant of the right of interlocutory appeal does not settle all issues, e. g., jury waiver, as cf. Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, certiorari denied Caffey v. Bereslavsky, 68 S.Ct. 82, and Bereslavsky v. Kloeb, 6 Cir., 162 F.2d 862, certiorari denied Kloeb v. Bereslavsky, 68 S.Ct. 156, where mandamus was resorted to. Eor the “basic issue test” of the jury-trial right, as explained by Professor Moore, 3 Moore’s Federal Practice 3015, 3016, see Beaunit Mills v. Eday Fabric Sales Corp., supra, 2 Cir., 124 F.2d 563, 566. If be tries to avoid losing his right by bringing separate actions» he will probably be met with the contention that he is splitting his claims and that his first case to go to judgment is ros judi-cata of the other. See cases collected Clark, Code Pleading, 2d Bd.1947, 475, 476." }, { "docid": "4156637", "title": "", "text": "equity-jurisdiction of the court having attached,, expiration of the patent did not take away-that jurisdiction. Expiration of the life of' the patent during the pendency of the action did not oust the court of its equitable-jurisdiction which had already attached. Clark v. Wooster, 119 U.S. 322, 7 S.Ct. 217, 30 L.Ed. 392; Rice & Adams Corp. v. Lathrop; 278 U.S. 509, 49 S.Ct. 220, 73 L.Ed. 480. T-rue, validity and infringement are ultimate facts upon which depend the question of liability for damages; and in actions at law for the recovery of damages for infringement, they are to be decided by the jury. United States v. Esnault-Pelterie, 299 U.S. 201, 57 S.Ct. 159, 81 L.Ed. 123. That rule has appropriate application in an action at law instituted during the life of a patent in which plaintiff seeks only damages for past infringement but no equitable relief by way of injunction or otherwise to prevent future infringement, or in action at law instituted after the expiration of a patent solely for the recovery of damages. Root v. Railway Co., 105 U.S. 189, 26 L.Ed. 975. But since this action was one in equity when instituted, expiration of the patent during the pendency of the action did not automatically or ipso facto transform the action into one solely at law in the sense that Pneumatic had the absolute right to a trial by jury of the issues of validity and infringement. It was within the sound judicial discretion of the court to retain equity jurisdiction for the purpose of determining-the issues of validity and infringement, and . at the same time grant a trial by jufy of the issue of damages in the event the patent was first sustained as to validity and, infringement. The cases of Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, certiorari, denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355, and Bereslavsky v. Kloeb, 6 Cir., 162 F.2d 862, certiorari denied, 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393, are not to the contrary. In each of those cases, after the patent expired plaintiff amended" }, { "docid": "11914706", "title": "", "text": "tolerated under most modern codes, including probably New York, notwithstanding some diversity in the local precedents. See discussion, with citation of cases, in Clark, Code Pleading 250-252 (2d Ed. 1947). But premature demolition of a defense cannot change the nature of the action which constantly remains one to recover on the insurance policies. The specific issue of mistake, in the making of an agreement — unlike fraud, as to which see Bowie v. Sorrell, 4 Cir., 209 F.2d 49— seems one for court and not jury trial under the federal practice. Prudential Ins. Co. of America v. Strickland, 6 Cir., 187 F.2d 67, 70, 71; and see Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235, 242, 43 S.Ct. 118, 67 L.Ed. 232; United States Plywood Corp. v. Hudson Lumber Co., 2 Cir., 210 F.2d 462; Broidy v. State Mut. Life Assur. Co. of Worcester, Mass., 2 Cir., 186 F.2d 490, 496. But in any event, since the actual claim sued upon has remained the same throughout, any right of trial by jury has long since been waived. Gulbenkian v. Gulbenkian, 2 Cir., 147 F.2d 173, 158 A.L.R. 990; Fidelity & Deposit Co. of Md. v. Krout, 2 Cir., 157 F.2d 912; Moore v. United States, 5 Cir., 196 F.2d 906; American Fidelity & Cas. Co. v. All American Bus Lines, 10 Cir., 190 F. 2d 234, certiorari denied 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642; F.R. 38(b), (d). In view of this we do not reach the question as to the propriety of conditioning leave to amend on a non-jury trial where the jury-trial right as to the amended claim is otherwise clear, see Parissi v. Foley, 2 Cir., 203 F.2d 454; Westcott v. U. S. Fidelity & Guaranty Co., 4 Cir., 158 F.2d 20; 5 Moore’s Federal Practice 327, 328 (2d Ed. 1951), or as to the applicability or the presently compulsive force of Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; cf. the case below, Bereslavsky v. Socony-Vacuum Oil Co., D.C.S.D.N.Y., 7 F.R.D." }, { "docid": "14086592", "title": "", "text": "as the usual interlocutory order it is and let review await the time when, if ever, it comes up on an appeal from a final judgment. Cf. McNabb v. Kansas City Life Ins. Co., 8 Cir., 139 F.2d 591. We dealt with a variant of this situation in Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499, certiorari denied 332 U.S. 770, 68 S.Ct. 82. There a motion for a jury trial was denied in a suit on a patent commenced as an action in equity and changed by amendment to a suit at law for damages only. The issue was not, as here, whether to excuse a waiver of a trial by jury but whether the demand for a jury trial was timely as a matter of law/ If Rule 38, F.R.C.P., had been erroneously construed, as we held it had, the plaintiff had undoubtedly been deprived of the right to a trial by jury and forced to a trial which was sure to be abortive. That was the equivalent of a denial by the court to exercise its power to hear and determine the issues as a tribunal constituted in the manner provided by law and we considered the situation sufficiently extraordinary to require a drastic remedy and granted a petition for a writ of mandamus. Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919; Ex parte Simons, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094. It was implicit in our decision that the remedy by appeal was inadequate since it would be effective only after final judgment and the parties would then have been put to the delay and expense of a fruitless trial, cf. Bank Line v. United States, 2 Cir., 163 F.2d 133, 136. Appeal dismissed. L. HAND, Circuit Judge (dissenting). It is true that in Bereslavsky v. Caffey the question, whether an action should be tried to a judge or to a jury, was.one of law; not, as here, of the exercise of discretion. However, although expressions to the contrary can be found, the Supreme Court has said a number of" } ]

[ { "docid": "10589164", "title": "", "text": "or substitute its judgment for that of the jury.” Id. In order to deny judgment as matter of law, however, the court must find more than merely “a scintilla of evidence” favoring the nonmovant, the court must find that “evidence was before the jury upon which it could properly find against the movant.” Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988). III. Discussion of Judgment as a Matter of Law The court grants the defendants’ motion for judgment as a matter of law because the plaintiff did not present any evidence that would suggest that the defendants, or anyone in the world, for that matter, actually knew at any time prior to this lawsuit that a mini-trampoline could cause stress fractures to a user’s lower legs when that user uses the mini-trampoline for an extended period. As will be discussed later, this court finds that Kansas courts would limit a manufacturer’s duty to warn to those dangers about which the manufacturer' actually knew or of which the manufacturer could learn by reasonably studying the state of the' art of knowledge. This court finds that Kansas courts would not extend the duty to warn to those dangers about which a manufacturer could only learn by testing its products to determine dangers arising out of all foreseeable uses. Because no evidence was introduced at trial to show that anyone 'knew, prior to this litigation, of a mini-trampoline’s propensity to cause stress fractures in joggers’ lower legs, there was insufficient evidence to support the jury’s finding that the defendants breached their duty to the plaintiff to warn her that using the mini-trampoline for, jogging could cause, her these injuries. In Kansas, a manufacturer’s failure to warn is measured by whether it was reasonable under the circumstances, whether the claim is based on negligence or “even if the claim is made under the rubric of a strict products liability defect.” Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318, 1324-25 (1986). Therefore, the applicable analysis is based on negligence. Id. 718 P.2d at 1324. Kansas has adopted the" } ]

[ { "docid": "20025305", "title": "", "text": "233 Kan. 38, 661 P.2d 348, 362-63 (1983) (quoting Russell v. G.A.F. Corp., 422 A.2d 989 (D.C.App.1980), which stated \"[a] product can be perfectly made and still require directions or warnings on proper use in order to be safe” and Harris v. Northwest Natural Gas Co., 284 Or. 571, 588 P.2d 18 (1978), which stated \"[a] product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics.\") . Limax argues that because jogging on flat surfaces can cause stress fractures in the feet and legs, yet manufacturers of jogging shoes have no duty to warn, it should have no duly to warn about jogging on a mini-trampoline, especially since Richter is the only person known to have suffered ankle stress fractures. In light of testimony at trial, this argument is unpersuasive. Jogging shoes do not increase the degree of eversion that occurs naturally. Indeed, trial testimony revealed high quality jogging shoes are designed to counter the natural degree of eversion. The mini-trampoline, in contrast, does not counter the natural degree of eversion, or even leave the degree of eversion unaffected. Instead it dangerously accentuates the natural tendency of the foot to evert while jogging because of the angle at which the surface of the trampoline depresses. It is this accentuation that gives rise to the duty to warn. . For example, if Richter had developed through the use of the mini-trampoline hives or a severe skin irritation, in the total absence of testimony in the record that such harm would be foreseeable, under such circumstances, the manufacturer would have no duty to warn. The point is that each case must be decided upon the evidentiary proofs in the record. . The jury could reasonably infer from testimony that Richter did read the only warning that came with the mini-trampoline." }, { "docid": "9702387", "title": "", "text": "judgment as a matter of law. Our review of that legal determination is de novo. Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir.), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). Judgment as a matter of law is appropriate “only if the evidence, viewed in the light most favorable to the nonmoving party, ‘points but one way and is susceptible to no reasonable inferences supporting’ the nonmoving party.” Id. (quoting Zimmerman v. First Federal Savings & Loan Ass’n, 848 F.2d 1047, 1051 (10th Cir.1988)). Kansas substantive law provides that every products liability action must be based on a defective condition in the product, regardless of the theory of recovery. See, e.g., Lane v. Redman Mobile Homes, Inc., 5 Kan.App.2d 729, 624 P.2d 984, 988 (1981). A product, though perfectly designed and manufactured, may be defective if not accompanied by adequate warnings of its dangerous characteristics. See Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348, 362-63 (1983). “In determining warning issues, the test is reasonableness. To impose liability on a manufacturer, the plaintiff must show negligence on the part of the manufacturer.” Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318, 1324 (1986). Thus our inquiry on review is whether, under the standard set out above, legally sufficient evidence existed to support the jury’s finding that Michelin was negligent in failing to place a warning of the hazard in question on the side of its tire. At trial, the Meyerhoffs’ primary theory of recovery was that a warning should have been placed in yellow or some other contrasting color on the sidewall of the tire. To support this theory, their counsel called Loren Forney as an expert witness to testify that it would be feasible to do so. The district court would not allow Mr. Forney to testify to that effect, finding he was not qualified to offer expert testimony on the contrasting color theory. The Meyerhoffs now argue that excluding Mr. Forney’s testimony was error. We review a trial court’s exclusion of expert testimony for abuse of discretion. Broadcort Capital" }, { "docid": "6425263", "title": "", "text": "however, the focus of the inquiry is whether the defendant failed to warn of particular risks that were known or knowable in light of the generally recognized and prevailing scientific and technical knowledge available at the time of manufacture and distribution. Despite the theoretical differences noted in Fibreboard Corp., we have recognized that Colorado has not drawn a “rigid distinction between negligence and strict liability failure to warn concepts.” Romero v. International Harvester Co., 979 F.2d 1444, 1452 (10th Cir.1992). For example, as with all tort claims, the plaintiff must prove the elements of causation and damages. More importantly, “[o]ne critical area of overlap is that, ‘[rjegardless of whether a product liability action is grounded in negligence or strict liability, a plaintiff must prove that the product was defective.’” Perlmutter v. United States Gypsum Co., 54 F.3d 659, 663 (10th Cir.1995) (quoting Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo.1992)). Under either theory, the product must have been defective at the time of sale. See Perlmutter v. United States Gypsum Co., 4 F.3d 864, 869 (10th Cir.1993) (holding that in a negligence claim, there is “no post-sale duty to warn or remedy when the product was non-defective under standards existing at the time of manufacture”); Fibreboard Corp., 845 P.2d at 1175 (stating that “[i]n [strict liability] failure-to-warn cases, a product is not defective and unreasonably dangerous if a particular risk is not known or knowable in light of the generally recognized and prevailing scientific and technical knowledge available at the time of manufacture and distribution”). In this case, the elements of defectiveness and causation were common to all of Oja’s claims. The record on appeal reveals that these two elements were essentially the only elements disputed at trial. To find for Oja on her negligent failure to warn claim, the jury had to find that the PCA hip was defective at the time of sale and caused her injuries. To find for Howmedica on Oja’s strict liability claim, the jury had to find that the PCA hip was either not defective at the time of sale or" }, { "docid": "23244988", "title": "", "text": "prove industry standards, such admission would have been inappropriate. See id. However, Wheeler was attempting to prove not only that the 7720 combine was unreasonably dangerous, but also that Deere provided inadequate warnings of the danger giving rise to his injury. In Wheeler I, we upheld the admission of Deere’s safety committee meeting records to show the company’s awareness of a possible problem and consequent need for a suitable warning. We stated: In Kansas, the imposition of liability upon a manufacturer for inadequately warning a consumer or user regarding the dangers associated with its product is dependent upon the manufacturer’s actual or constructive knowledge of the risk: “[T]he adequacy of a warning is ... judged under a reasonableness standard — even if the claim is made under the rubric of a strict products liability defect.” Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318, 1324-25 (1986). Consequently, the trial judge properly admitted ... exhibits ... which refer to Deere’s awareness of a possible problem.... This evidence is relevant to the issue of whether the combine’s warning as it existed at the time of Wheeler's accident was adequate. 862 F.2d at 1411 (footnote omitted). See also Kan.Stat.Ann. § 60-3305 (1983) (reasonable user or consumer test for adequacy of warning); O’Gilvie v. International Playtex, Inc., 821 F.2d 1438, 1441-42 (10th Cir.1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2014, 100 L.Ed.2d 601 (1988). This reasoning is equally pertinent with respect to the admission of Deere’s design and product safety manuals; they pertain to whether Deere knew of the dangers associated with the vertical auger, sump and cleanout door. Such knowledge is a relevant factor in considering the adequacy of any warning. Deere also argues that the district court erred in allowing Wheeler’s expert, John Sevart, to testify that the combine was dangerous beyond the expectation of the ordinary user. According to Deere, because Sevart’s skill and expertise lay in mechanical engineering and not consumer sampling, his testimony on consumer expectations lacked foundation. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or" }, { "docid": "14169241", "title": "", "text": "the method by which it is conveyed. Id. In the case of mass innoculations, vaccinees must be informed, in clear and simple terms, by the manufacturer of: (1) the reasonably foreseeable risk inherent in the product; (2) reasonable available alternative products (if any) and the reasonably foreseeable risks posed by such alternatives; and, in appropriate cases, (3) the reasonably foreseeable results of remaining untreated. See Johnson, 239 Kan. at 292, 718 P.2d 1318 (Prager, J., dissenting); Unthank v. United States, 732 F.2d 1517, 1521 (10th Cir.1984). The manufacturer’s duty is to warn of all potential dangers which it knew, or in the exercise of reasonable care should have known, to exist. This duty is a continuous one, requiring the manufacturer to keep abreast of the current state of knowledge. Wooderson, 235 Kan. at 405, 681 P.2d 1038. To impose liability on the defendant for inadequate warning, the plaintiff must show negligence on the part of the manufacturer. Johnson, 239 Kan. at 286, 718 P.2d 1318. Accordingly, plaintiffs are precluded from asserting a claim of strict liability for failure to warn and summary judgment will be entered for defendant on that claim. Defendant argues that the warning given was adequate as a matter of law. In this regard, defendant urges the court to find that Johnson is directly on point and requires a finding of adequate warning. This court cannot agree. Johnson must necessarily be limited to its facts on the warning issue. As previously stated, the adequacy of a warning turns on its reasonableness under the circumstances. The Johnson court found that under the circumstances before it, reasonable minds could not differ on the adequacy of the warning. Johnson does nothing to change the factual nature of the inquiry. It is well established in Kansas that whether a warning is adequate is an issue for the trier of fact. Wooderson, 235 Kan. at 409, 681 P.2d 1038. Moreover, the testimony of experts in the field should be considered. Siruta v. Hesston Corp., 232 Kan. 654, 659 P.2d 799 (1983). In this case the plaintiffs will offer evidence that the warning" }, { "docid": "23244987", "title": "", "text": "expert testimony on consumer expectations and momentary forgetfulness. The admission or exclusion of evidence lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Wheeler I, 862 F.2d at 1408. Deere contends that the admission of its design and safety manuals improperly diverted the jury’s attention from reasonable consumer expectations to Deere’s “fault” despite the fact that negligence is not at issue in strict products liability cases. A manufacturer’s compliance with industry standards is irrelevant in a strict products liability case where the determinative question is whether a product is unreasonably dangerous; such standards are germane only in determining a manufacturer’s duty of care under a negligence theory. Rexrode v. American Laundry Press Co., 674 F.2d 826, 831 (10th Cir.), cert. denied, 459 U.S. 862, 103 S.Ct. 137, 74 L.Ed.2d 117 (1982); Raney v. Honeywell, Inc., 540 F.2d 932, 938 (8th Cir.1976). See also McHargue v. Stokes Div., 912 F.2d 394, 395 n. 3 (10th Cir.1990). If Deere’s design and safety manuals were admitted to prove industry standards, such admission would have been inappropriate. See id. However, Wheeler was attempting to prove not only that the 7720 combine was unreasonably dangerous, but also that Deere provided inadequate warnings of the danger giving rise to his injury. In Wheeler I, we upheld the admission of Deere’s safety committee meeting records to show the company’s awareness of a possible problem and consequent need for a suitable warning. We stated: In Kansas, the imposition of liability upon a manufacturer for inadequately warning a consumer or user regarding the dangers associated with its product is dependent upon the manufacturer’s actual or constructive knowledge of the risk: “[T]he adequacy of a warning is ... judged under a reasonableness standard — even if the claim is made under the rubric of a strict products liability defect.” Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318, 1324-25 (1986). Consequently, the trial judge properly admitted ... exhibits ... which refer to Deere’s awareness of a possible problem.... This evidence is relevant to the issue of whether" }, { "docid": "532861", "title": "", "text": "no duty to warn against dangers that are known or should be known by the user. Long, 238 Kan. at 772-73, 715 P.2d at 1028-29; Mays v. Ciba-Geigy Corp., 233 Kan. 38, 58-60, 661 P.2d 348 (1983). If a user is already familiar with the dangerous properties of a product, any additional warning would be superfluous, and the manufacturer’s failure to warn could not be a cause of any injuries resulting from use of the product. See Hall v. Ashland Oil Co., 625 F.Supp. 1515, 1520-21 (D.Conn.1986) (degree of benzene user’s knowledge of specific risk was issue of disputed fact for the jury); Menna v. Johns-Manville Corp., 585 F.Supp. 1178, 1184-87 (D.N.J.1984) (under both strict liability and negligence claims, level of employer’s knowledge or sophistication presents question of fact regarding superseding cause of injury), aff'd, 712 F.2d 895 (3d Cir.1985). In support of its claim that the Coast Guard had actual knowledge of benzene’s dangerous nature, Texaco relies primarily on information contained in the Coast Guard safety manual and on the testimony Kenneth Doolan — the Coast Guard’s manager of industrial hygiene during the relevant times. The Coast Guard safety manual in effect as of November 1973 listed benzene as a “toxic hazard” that could cause injury to blood forming organs. Nowhere in this manual, however, is benzene clearly identified as a cancer or leukemia inducing agent. At most, this manual demonstrates that somewhere within the annals of Coast Guard safety literature there existed information similar to that contained in Texaco’s warning. Defendant produced no evidence that anyone in the Coast Guard’s safety program or at the Yorktown facility understood this language to mean that exposure to benzene could cause cancer. The Kansas Supreme Court has made abundantly clear that a manufacturer may not escape liability for failure to warn simply because a user has some general knowledge of a product’s inherent dangers. Long, 238 Kan. at 772-73, 715 P.2d at 1028-29 (although user knew the reasons and purposes for seat belts, no showing that user appreciated or knew of extreme danger); see also White v. W.G.M. Safety Cory., 707" }, { "docid": "6425262", "title": "", "text": "unless it is “inconsistent on its face such that entry of judgment upon the verdict is plain error.” Hinds, 988 F.2d at 1047. b. Facial Inconsistency “A verdict that resolves separate and distinct causes of action in favor of both parties is not inconsistent on its face.” Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., 948 F.2d 1518, 1522 (10th Cir.1991). In contrast, when “several causes of action are identical and defended on the same ground, a verdict for the plaintiff on one cause of action and for the defendant on another is inconsistent.”' Diamond Shamrock Corp., 791 F.2d at 1425. To determine whether the verdicts in this case are irreconcilably inconsistent, we must examine the relationship between strict liability and negligence under Colorado law. In Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1174 (Colo.1993) (en banc), the Supreme Court of Colorado stated: Under a negligence theory a plaintiff is required to prove that a manufacturer’s failure to warn of a risk fell below an acceptable standard of care. Under a strict liability theory, however, the focus of the inquiry is whether the defendant failed to warn of particular risks that were known or knowable in light of the generally recognized and prevailing scientific and technical knowledge available at the time of manufacture and distribution. Despite the theoretical differences noted in Fibreboard Corp., we have recognized that Colorado has not drawn a “rigid distinction between negligence and strict liability failure to warn concepts.” Romero v. International Harvester Co., 979 F.2d 1444, 1452 (10th Cir.1992). For example, as with all tort claims, the plaintiff must prove the elements of causation and damages. More importantly, “[o]ne critical area of overlap is that, ‘[rjegardless of whether a product liability action is grounded in negligence or strict liability, a plaintiff must prove that the product was defective.’” Perlmutter v. United States Gypsum Co., 54 F.3d 659, 663 (10th Cir.1995) (quoting Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo.1992)). Under either theory, the product must have been defective at the time of sale. See Perlmutter v. United States Gypsum Co., 4" }, { "docid": "9702386", "title": "", "text": "a jury to find that Timpte employees — who were in the business of selling trailers — had some general knowledge that danger could accompany reinflation of a truck tire. As the district court rightly concluded, “[t]his general knowledge is not knowledge of the specific hazard involved in this case, and, even assuming Timpte had some independent duty to warn, is not sufficient to create a jury question.” Appellants’ App. at 30 n. 11. In sum, we find that the Meyerhoffs failed to present sufficient evidence to allow a reasonable jury to find Timpte liable for failing to warn of the hazard that led to their son’s death. Because the undisputed facts show Timpte did not know or have reason to know of the hazard, Timpte had no duty to warn customers of that hazard. For these reasons, we affirm the district court’s grant of summary judgment in Timpte’s favor. 2. Michelin’s Motion for Judgment as a Matter of Law The Meyerhoffs next contend that the district court erred in granting Michelin’s renewed motion for judgment as a matter of law. Our review of that legal determination is de novo. Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir.), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). Judgment as a matter of law is appropriate “only if the evidence, viewed in the light most favorable to the nonmoving party, ‘points but one way and is susceptible to no reasonable inferences supporting’ the nonmoving party.” Id. (quoting Zimmerman v. First Federal Savings & Loan Ass’n, 848 F.2d 1047, 1051 (10th Cir.1988)). Kansas substantive law provides that every products liability action must be based on a defective condition in the product, regardless of the theory of recovery. See, e.g., Lane v. Redman Mobile Homes, Inc., 5 Kan.App.2d 729, 624 P.2d 984, 988 (1981). A product, though perfectly designed and manufactured, may be defective if not accompanied by adequate warnings of its dangerous characteristics. See Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348, 362-63 (1983). “In determining warning issues, the test is reasonableness. To impose liability" }, { "docid": "532989", "title": "", "text": "determining whether other parties were the sole cause of Otis Mason’s exposure to Texaco’s benzene, you are instructed as follows. A negligent act or omission by a party who acts after the first negligent actor is not the sole cause of an injury if the first negligent actor could foresee, or should have reasonably foreseen, the subsequent negligent acts or omissions by these other parties. Thus, if you find that Texaco’s warning was inadequate, and that Texaco could foresee, or should have reasonably foreseen, the subsequent acts or omissions of other parties, then you must find that Texaco caused, either in whole or in part, Otis Mason’s exposure to its benzene. On the other hand, if you find that Texaco’s warning was inadequate, but that Texaco could not foresee, or should not have reasonably foreseen, the subsequent acts or omissions of other parties, then you must find that Texaco did not cause Otis Mason’s exposure to its benzene. . Defendant has also argued that Kansas no longer recognizes strict liability for failure to warn cases. In support, defendant calls attention to Kansas Supreme Court language emphasizing the standard of “reasonableness” under either negligence or strict liability. See Mays v. Ciba-Geigy Corp, 233 Kan. 38, 661 P.2d 348, syl. ¶ 6. (1983); Johnson v. American Cyanamid Co., 239 Kan. 279, 286, 718 P.2d 1318 (1986) (plaintiff must show negligence on the part of the manufacturer in determining warning issues). By emphasizing the \"reasonableness” or “negligence” of the manufacturer, however, the Johnson decision does no more than reaffirm that Kansas strict liability law is thoroughly infused with negligence concepts. See Kennedy v. City of Sawyer, 228 Kan. 439, 448-52, 618 P.2d 788 (1980) (comparative negligence principles are applicable to Kansas strict liability actions); Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 373, 634 P.2d 1127 (1981) (\"strict liability in tort does have a fault basis, therefore subjecting it to comparison with other fault concepts”); Wooderson, 235 Kan. at 403-04, 681 P.2d at 1052 (\"product which is faultlessly designed and manufactured may be nevertheless unreasonably dangerous within the meaning of § 402A if not" }, { "docid": "9702377", "title": "", "text": "to warn claim. We review the grant of summary judgment de novo, applying the same standard applicable in the district court. Koch v. Shell Oil Co., 52 F.3d 878, 880 (10th Cir.1995). Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Id. The Meyerhoffs contend in this appeal that Timpte owed their son a duty to warn him of the danger in question, on two separate grounds. First, they argue that Timpte had a duty to pass on warnings it received from Michelin. Second, they argue Timpte had an independent duty as a product seller to warn of dangers of which it either knew or had reason to know. The Meyerhoffs start with the proposition that “[a] manufacturer’s immediate vendee certainly has a duty to convey adequate warnings that it has received from a manufacturer.” Mason v. Texaco, Inc., 741 F.Supp. 1472, 1489 (D.Kan.1990), aff'd on other grounds, 948 F.2d 1546 (10th Cir.1991), cert. denied, 504 U.S. 910, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992). They argue from this proposition that Timpte owed a duty as a “vendee” to pass on Michelin’s warnings. Timpte, on the other hand, points out that it was not the “immediate vendee” of the Michelin tires and therefore had no such duty. We are bound in this diversity case by Kansas substantive law. Cf. Koch, 52 F.3d at 880. We are therefore controlled by expressions of the Kansas Supreme Court. See, e.g., id. at 884 n. 5. The Kansas decisions make clear that a product seller has a duty to warn its customers of those dangers of which it either knows or has reason to know. E.g., Jones v. Hittle Service, Inc., 549 P.2d 1383, 1391, 1395 (1976); see also Kan. Stat.Ann. § 60-3306 (incorporating rule into products liability statute). This is in fact the second basis the Meyerhoffs assert in support of their argument and the only one we find to" }, { "docid": "3131782", "title": "", "text": "properly analyzed defendant’s motion for summary judgment. IV. Plaintiffs also contend that the district court misconstrued Colorado law to require a finding of product defect in negligent failure to warn claims. As plaintiffs correctly point out, strict liability and negligence are conceptually different theories of product liability. Grasmick v. Otis Elevator Co., 817 F.2d 88, 90 (10th Cir.1987) (applying Colorado law). The difference between negligence and strict liability is the focus of the trier of fact. Under a negligence theory, the reasonableness of the manufacturer’s conduct must be determined. Under a strict liability theory, the determination is whether the product is defective, or, if not defective, unreasonably unsafe, and whether ... a warning was required. Downing v. Overhead Door Corp., 707 P.2d 1027, 1032 (Colo.Ct.App.1985); see also Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1174-75 (Colo.1993). ‘When a manufacturer or seller knows or should know of unreasonable dangers associated with the use of its product [that are] not obvious to product users, it has a duty to warn of these dangers; and a breach of this duty constitutes negligence.” Palmer v. A.H. Robins Co., 684 P.2d 187, 198 (Colo.1984). In the context of a negligent failure to warn claim, the manufacturer’s duty is to warn of dangers that it knew or should have known of. Grasmick, 817 F.2d at 90. Despite the theoretical differences between the two claims, “Colorado caselaw ... suggests that there need not be a rigid distinction between negligence and strict liability failure to warn concepts.” Romero, 979 F.2d at 1452 (referring to Halliburton v. Public Serv. Co., 804 P.2d 213, 217 (Colo.Ct.App.1990), cert. denied, (Jan. 29, 1991) and Downing, 707 P.2d at 1032). “[T]he reasons which impose a duty to warn under [strict liability] also exist where the.claim is based on negligence and, generally, the law applicable to warnings under [strict liability] are instructive in negligence cases as well.” Halliburton, 804 P.2d at 217. One critical area of overlap is that, “[r]egardless of whether a product liability action is grounded in negligence or strict liability, a plaintiff must prove that the product was defective.” Mile Hi" }, { "docid": "20025304", "title": "", "text": "products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk. . See also Menne v. Celotex Corp., 861 F.2d 1453, 1457 n. 3 (10th Cir.1988) (referring to section 402A and comments j and k and stating \"[fjailure to adequately warn of [reasonably foreseeable] hazards renders the product unreasonably dangerous.”); Deines v. Vermeer Mfg. Co., 755 F.Supp. 350, 353 (D.Kan.1990) (\"A product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics.”); Johnson, 718 P.2d at 1323-24 (stating \"There is no claim ... a defective product was delivered .... This leaves the only possible liability in the adequacy of the warning provided by the manufacturer.”); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348, 362-63 (1983) (quoting Russell v. G.A.F. Corp., 422 A.2d 989 (D.C.App.1980), which stated \"[a] product can be perfectly made and still require directions or warnings on proper use in order to be safe” and Harris v. Northwest Natural Gas Co., 284 Or. 571, 588 P.2d 18 (1978), which stated \"[a] product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics.\") . Limax argues that because jogging on flat surfaces can cause stress fractures in the feet and legs, yet manufacturers of jogging shoes have no duty to warn, it should have no duly to warn about jogging on a mini-trampoline, especially since Richter is the only person known to have suffered ankle stress fractures. In light of testimony at trial, this argument is unpersuasive. Jogging shoes do not increase the degree of eversion that occurs naturally. Indeed, trial testimony revealed high quality jogging shoes are designed to counter the natural degree of" }, { "docid": "18565488", "title": "", "text": "to show “the basis for determinations of dangerousness and the anticipated likelihood of injury by the product.” The Hulls disagree, arguing that the adequacy of a warning is almost always a question for a jury. Appellants are correct as far as they go. See Payne, 486 A.2d at 723; Russell v. G.A.F. Corp., 422 A.2d 989, 992 (D.C.App.1980); Ferebee v. Chevron Chemical Co., 552 F.Supp. 1293, 1304 (D.D.C.1982), aff'd, 736 F.2d 1529 (D.C.Cir.1984). They fail to recognize, however, that regardless of whether a failure to warn claim is phrased in terms of negligence or strict liability, there is a threshold question as to whether a duty to warn exists. Payne, 486 A.2d at 721. See also Burch v. Amsterdam Corp., 366 A.2d 1079, 1084 (D.C.App.1976). That determination must rest on evidence that the manufacturer “should have known of a danger sufficiently serious to require a warning.” Russell, 422 A.2d at 992. See also Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 814 (D.C.Cir.1980) (no duty to warn if risk not reasonably foreseeable). See generally Prosser § 99; 1A L. Fumer & M. Friedman, Products Liability § 8.03[1] (1986). Before the Russell and Ferebee courts reached the question of the adequacy of the warnings, plaintiffs had introduced evidence — through expert testimony on the probability and gravity of the particular risks — giving rise to an inference that the risk was both foreseeable and sufficiently serious that a duty to warn existed. See Russell, 422 A.2d at 992; Ferebee, 736 F.2d at 1538. B. Having determined the district court correctly set out elements of the negligence, strict liability and failure to warn claims, we now discuss whether appellants offered sufficient evidence to create a genuine issue of fact as to those elements. The district court granted summary judgment because appellants lacked expert testimony on the dangers of the forklift and the consequences and trade-offs of alternative designs. We agree, of course, that with respect to some matters expert testimony is more than advantageous — it is required. See Simpson v. Chesapeake & Potomac Tel. Co., 522 A.2d 880, 884-85 (D.C.App.1987); District" }, { "docid": "532874", "title": "", "text": "latent dangers associated with a product, a manufacturer cannot escape liability for injury on the grounds that perfect compliance with its instructions would have prevented the injury. Karns v. Emerson Elec. Co., 817 F.2d 1452, 1457 (10th Cir.1987) (quoting Smith v. United States Gypsum Co., 612 P.2d 251, 253 (Okla.1980)). Although a warning should contain precautions or instructions for a product’s safe use, an adequate warning must also inform the user of the result that will follow from the failure to observe these instructions. Ferebee v. Chevron Chem. Co., 552 F.Supp. 1293, 1304-05 (D.D.C.1982), aff'd, 736 F.2d at 1539 (D.C.Cir.1984); Beauchamp v. Russell, 547 F.Supp. 1191, 1195 n. 2 (N.D.Ga.1982) (instructions are not warnings). The reason a user has no specific legal duty to use a product in accordance with the bare, unembellished instructions of an inadequate warning is that such a warning fails to impress upon the reader the nature and gravity of harm that will follow from the failure to observe the instructions. If Texaco had adequately warned of the carcinogenic danger of benzene exposure in terms understandable to the ordinary user, the users of its product might elect not to purchase benzene at all. Indeed, this is precisely the choice made by the Coast Guard when it finally learned of benzene’s carcinogenic propensities. Thus, because a user has no specific legal duty to follow the instructions of an inadequate warning, defendant cannot contend that Mellen’s failure to pass on Texaco’s MSDS was the legal cause of Mason’s injury. For the same reason, the court rejects defendant’s argument that the jury could not reasonably find Mellen to have borne no causal responsibility, even though Mellen did not pass on the information in Texaco’s MSDS. A manufacturer’s immediate vendee certainly has a duty to convey adequate warnings that it has received from the manufacturer. Younger v. Dow Corning Corp., 202 Kan. 674, 451 P.2d 177 (1969); and Kansas law requires that a seller warn of those dangers of which it either knows or has reason to know. Hittie, 219 Kan. 627, 549 P.2d 1383, syl. II4. In this case," }, { "docid": "532860", "title": "", "text": "and a decision as a matter of law is inappropriate. Prince v. Leesona Corp., 720 F.2d 1166, 1169 (10th Cir.1983). Questions regarding the existence of intervening and superseding causes are determined according to the test of foreseeability. Schmeck, 232 Kan. 11, 651 P.2d 585, syl. 11 6. Thus, “[i]f the original actor should have reasonably foreseen and anticipated the intervening act causing injury in the light of the attendant circumstances, his act of negligence would be a proximate cause of the injury.” George v. Breising, 206 Kan. 221, 227, 477 P.2d 983 (1970). Giving due regard to the jury’s findings in these matters, the court turns to the. specific issues raised by defendant. A. The Coast Guard Defendant contends that the Coast Guard knew of the dangers of benzene prior to and during the time Mason started working at the Yorktown facility. Defendant argues that this putative knowledge was a superseding cause of Mason’s death, or at least required the jury to assess some degree of fault to the Coast Guard. Ordinarily, a manufacturer has no duty to warn against dangers that are known or should be known by the user. Long, 238 Kan. at 772-73, 715 P.2d at 1028-29; Mays v. Ciba-Geigy Corp., 233 Kan. 38, 58-60, 661 P.2d 348 (1983). If a user is already familiar with the dangerous properties of a product, any additional warning would be superfluous, and the manufacturer’s failure to warn could not be a cause of any injuries resulting from use of the product. See Hall v. Ashland Oil Co., 625 F.Supp. 1515, 1520-21 (D.Conn.1986) (degree of benzene user’s knowledge of specific risk was issue of disputed fact for the jury); Menna v. Johns-Manville Corp., 585 F.Supp. 1178, 1184-87 (D.N.J.1984) (under both strict liability and negligence claims, level of employer’s knowledge or sophistication presents question of fact regarding superseding cause of injury), aff'd, 712 F.2d 895 (3d Cir.1985). In support of its claim that the Coast Guard had actual knowledge of benzene’s dangerous nature, Texaco relies primarily on information contained in the Coast Guard safety manual and on the testimony Kenneth Doolan —" }, { "docid": "7558812", "title": "", "text": "must be activated within a few seconds of an engine failure. The Superior Court held that inadequate warnings of inherent or latent limitations of a product are sufficient to establish strict liability in tort even absent a defect in the design, manufacture, or preparation of that product, where the inadequate warning proximately caused an injury. In essence, it is the inadequacy or absence of the warning that renders the product defective. See also Greiner v. Volkswagenwerk, AG, supra. Defendants do not dispute that no warning was given to the Days prior.or subsequent to the purchase of their 1968 Micro-bus van. They assert that because the absence of shoulder restraints was obvious to anyone who entered the van, no such warning was required. This is particularly true, according to defendants, in light of the fact that the owner’s manual supplied with the Days’ van disclosed the presence of lap-type belts only, further stating: “Each outboard seat is equipped with a third mounting point to facilitate subsequent installation of combination shoulder/lap belts.” Plaintiffs correctly cite the Restatement (Second) of Torts § 402A, comment j, relating to the duty of a seller to give warnings in order to prevent a product from being unreasonably dangerous. However, the comment further states: “But a seller is not required to warn with respect to products . . . when the danger, or potentiality of danger, is generally known and recognized.” In Dougherty v. Hooker Chemical Corp., 540 F.2d 174 (3d Cir. 1976), decided just one month after Greiner, the Court stated: “. . . [Liability arises when the seller, having reason to know that its product is likely to be dangerous for its intended use, and having no reason to believe that the intended user will realize its dangerous condition, nevertheless fails to exercise reasonable care to inform the user of the dangerous condition.” 540 F.2d at 177. [emphasis supplied] Under the facts of Berkebile I, it was not obvious to the pilot that the autorotation system must be immediately activated to be effective. Similarly, in Greiner it was not obvious that the Volkswagen “Beetle” driven" }, { "docid": "20025303", "title": "", "text": "applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. . Comment j reads, in pertinent part: Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous. Comment k reads: Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.... Such a product, properly ’ prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous .... The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk. . See also Menne v. Celotex Corp., 861 F.2d 1453, 1457 n. 3 (10th Cir.1988) (referring to section 402A and comments j and k and stating \"[fjailure to adequately warn of [reasonably foreseeable] hazards renders the product unreasonably dangerous.”); Deines v. Vermeer Mfg. Co., 755 F.Supp. 350, 353 (D.Kan.1990) (\"A product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics.”); Johnson, 718 P.2d at 1323-24 (stating \"There is no claim ... a defective product was delivered .... This leaves the only possible liability in the adequacy of the warning provided by the manufacturer.”); Mays v. Ciba-Geigy Corp.," }, { "docid": "7505048", "title": "", "text": "collision. As the district court explained, to the limited extent that Appellant’s expert addressed the risks of operating a tractor without a seat belt, that testimony is inadmissible because the issues could be understood'by an ordinary jury. See Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1124 (10th Cir.1995); Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir.1994). Because Appellant has failed to show how the lack of a seat belt on a tractor constitutes a risk.beyond the contemplation of the ordinary consumer, we agree with the district court that the tractor involved in this case was not defective for lack of a seat belt. Therefore the court’s grant of summary judgment in favor of Appellees on the design defect claim was not error. Appellant also disputes the district court’s grant of summary judgment in favor of Appellees with respect to her claim that Appellees failed to give adequate warnings to consumers about the need for a ROPS. A product may be considered “defective if it is placed in the hands of the ultimate consumer without adequate warnings of the dangers involved in its use.” McKee v. Moore, 648 P.2d 21, 23 (Okla.1982). Once again, Oklahoma law requires that we look to the expectations of the ordinary consumer. The duty to warn is only implicated where the manufacturer has no reason to expect ordinary users to discover the danger involved. Duane v. Oklahoma Gas & Elec. Co., 833 P.2d 284, 286 (Okla.1992). Moreover, Oklahoma does not recognize a duty to warn of dangers that are obvious. See Lamke, 709 P.2d at 687; Steele v. Daisy Mfg. Co., 743 P.2d 1107, 1109 (Okla.Ct.App.1987). As discussed above, the danger of falling off of a tractor not equipped with a seat belt is open and obvious to an ordinary consumer. Appellant contends, however, that while the absence of a ROPS (including a seat belt) is obvious, the risk of rollovers is not obvious to the ordinary consumer and, therefore, a warning was required. Nevertheless, as discussed above, Appellant’s burden is specific to seat belts. While Appellant’s experts may" }, { "docid": "532990", "title": "", "text": "In support, defendant calls attention to Kansas Supreme Court language emphasizing the standard of “reasonableness” under either negligence or strict liability. See Mays v. Ciba-Geigy Corp, 233 Kan. 38, 661 P.2d 348, syl. ¶ 6. (1983); Johnson v. American Cyanamid Co., 239 Kan. 279, 286, 718 P.2d 1318 (1986) (plaintiff must show negligence on the part of the manufacturer in determining warning issues). By emphasizing the \"reasonableness” or “negligence” of the manufacturer, however, the Johnson decision does no more than reaffirm that Kansas strict liability law is thoroughly infused with negligence concepts. See Kennedy v. City of Sawyer, 228 Kan. 439, 448-52, 618 P.2d 788 (1980) (comparative negligence principles are applicable to Kansas strict liability actions); Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 373, 634 P.2d 1127 (1981) (\"strict liability in tort does have a fault basis, therefore subjecting it to comparison with other fault concepts”); Wooderson, 235 Kan. at 403-04, 681 P.2d at 1052 (\"product which is faultlessly designed and manufactured may be nevertheless unreasonably dangerous within the meaning of § 402A if not accompanied by proper warnings” and \"[a]s a practical matter, this in determined by application of negligence theory”) (quoting Ortho Pharmaceutical v. Chapman, 180 Ind.App. 33, 50-52, 388 N.E.2d 541 (1979)). Whatever conceptual difficulties may attend this approach, the Tenth Circuit has likewise recognized that the adequacy of a warning in Kansas is \" judged under a reasonableness standard— even if the claim is made under the rubric of a strict products liability defect.’ ” Wheeler v. John Deere Co., 862 F.2d 1404, 1411 (10th Cir.1988) (quoting Johnson v. American Cyanamid Co., 718 P.2d at 1324-25); see abo Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 455 (10th Cir.1982). Thus, there is no basis for the inference that Kansas has abandoned the cause of action of strict liability or its underlying policies as applied to claims of failure to warn. But see Graham v. Wyeth Laboratories, 666 F.Supp. 1483, 1499 (D.Kan.1987) (per Judge Kelly), rev'd on other grounds, 906 F.2d 1399 (10th Cir.1990). . Defendant also objected to the court asking the jury to clarify its first" } ]

[ { "docid": "18285109", "title": "", "text": "of Georgia he could appeal directly to the Supreme Court of the United States.” Thereafter by supplemental letter Solicitor General Slaton stated in pertinent part as follows: “If your Court sustains the District Court Judge and vacates the stay of execution, then the Petitioner in this case will be remanded to the trial judge in the Fulton Superior Court, and the trial judge will refix the date of execution. At that time the Petitioner in this case can then file a habeas corpus in this Court, alleging that his constitutional rights have been violated, and upon filing said habeas corpus, a stay of execution will be granted by the trial judge, which stay of execution will remain in effect until final determination of said habeas corpus regardless if the case goes all the way to the Supreme Court of the United States.” . The Eighth Circuit cited Turberville v. United States, 1962, 112 U.S.App.D.C. 400, 303 F.2d 411, and United States v. Puff, 2 Cir., 1954, 211 F.2d 171, cert. den. 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106, in support of its holding. . One uncertainty, of course, is whether habeas is open to test this claim. Without for a moment casting doubt on the good faith of the Solicitor’s representations to this Court (see note 1, supra), the Georgia Supreme Court, in no way bound by counsels’ positions, may hold that habeas is not available to reach this particular claim of unconstitutionality, As our opinions in Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95, and Smart v. Balkcom, 5 Cir., 1965, 352 F.2d 502, and others reflect, it must be recognized that in contrast to many other jurisdictions, Georgia limits availability of habeas very narrowly." } ]

[ { "docid": "8902912", "title": "", "text": "appellant to file a petition for the writ of habeas corpus in the State Courts. Upon consideration of the facts adduced at a full hearing, the Court made findings of fact and entered conclusions of law on the merits, upon which it was adjudged that no Federal right had been denied to the appellant by the Georgia Courts and the prayer for the writ of habeas corpus should be denied. We think it is clear that the petitioner failed to show an exhaustion of State remedies as required by the statute, and the trial Court therefore erred in holding to the contrary. The admitted failure of the appellant to present to the State Courts by application for the writ of habeas corpus the same contentions as presented to the Federal Court by the present application for the writ of Habeas Corpus can not be excused, nor held to constitute an exhaustion of State remedies, upon the mere surmise or assumption that, since the State Courts found no error in the order overruling the motion for continuance when presented by direct appeal, they would rule to the same effect upon the point presented by habeas corpus that the trial, conviction and sentence were void because the Court lost jurisdiction because of the deprivation of specified Constitutional rights, as now sought to be urged. The purpose of the statute requiring an exhaustion of State remedies and the decisions from which it evolved, evidence clear recognition of the importance of the principle of comity, which properly should, and must, be scrupulously regarded and obeyed to prevent unseemly conflict between the State and Federal Courts, and, additionally, recognition of the rule that “orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by [the Supreme Court of the United States].” Even before the Hawk case, supra, in Johnson v. Wilson, 5 Cir., 131 F.2d 1, in which the petitioner had been convicted of rape and sentenced to death in a State Court of Alabama, this Court affirmed the dismissal of the habeas" }, { "docid": "10374129", "title": "", "text": "the merits of a factual issue, made by a State court of competent jurisdiction . . . shall be presumed to be correct . . . .” in the federal proceeding. The exceptions to this statutory presumption are also technical. Georgia does not constitutionally have to afford prisoners either direct appeals from criminal convictions or a procedure for petitioning for writ of habeas corpus. Estelle v. Borough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377, 380 (1975). By statutorily providing for habeas corpus petitions it has made it mandatory for prisoners desiring to petition a United States District Court pursuant to 28 U.S.C. § 2254 to proceed in state court pursuant to Ga.Code Ann. § 50-127. That this result was intended by this State’s legislature is shown by a seldom found statement of legislative intent included with 1967 Ga.Laws, p. 835, et seq., a complete revision of Georgia’s habeas corpus statute: “Section 1. Statement of Legislative Intent and Purpose. The General Assembly finds that expansion of the scope of habeas corpus in federal court by decisions of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases.” Obviously aiming to eventually try to petition this court pursuant" }, { "docid": "22840999", "title": "", "text": "decisions of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases.” . See notes 14 and 15, infra. . See State of Texas v. Payton, supra, 390 F.2d at 270: “We believe however that principles of comity, of cooperation and of rapport between the two sovereigns require a different disposition. We remand with instructions to deny any relief and dismiss the Writ, without prejudice to Pay-ton’s right to reapply for relief to the State court in which he was convicted.” . See also Woodbury v. Beto, 5 Cir., 1968, 395 F.2d 189; Taylor v. Beto, 5 Cir., 1968, 392 F.2d 566; Beto v. Conley, 5 Cir., 1968, 393 F.2d 497; Waters v. Beto, 5 Cir., 1968, 392 F.2d 74. . See Mobley v. Dutton, 5 Cir., 1967, 380 F.2d 14; Clarke v. Grimes, 5 Cir., 1967, 374 F.2d 550. We said in the Clarice case, 374 F.2d at 552-553 that “in the exercise of comity and good federalism as well as proper federal-state relations, the Georgia state courts should first have an opportunity to rule on this question as presented in this case. It would be unseemly in our dual system of government under these circumstances for" }, { "docid": "6306320", "title": "", "text": "the question of exhausting the available state remedy. This selective waiver practice on the part of the state diminishes our federalism in the area of the obligation of the state to maintain its own system of criminal justice. Our optimism, however, comes from the fact that the problem will not be a recurring one. Georgia has just enacted the new comprehensive post-conviction procedure, effective July 1, 1967, Habeas Corpus Act of 1967, Act No. 562 (S.B. 171), Ga.Laws, pp. 835-839, 1967 Sess., approved April 18, 1967 (see Appendix). Georgia has equipped itself with flexible adequate tools to meet Georgia’s responsibility in the vindication of federal constitutional rights in the trial of criminal cases. This is where it belongs. The role of the Federal Courts will, as it should be, more and more reduced. Reversed and remanded. APPENDIX. AN ACT To amend Code Title 50, relating to habeas corpus, so as to provide a new exclusive procedure for persons whose liberty is being restrained by virtue of a sentence imposed against them by any state court of record; to provide the procedure for the foregoing; and to repeal conflicting laws; and for other purposes. BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: Section 1. Statement of Legislative Intent and Purpose. The General Assembly finds that expansion of the scope of habeas corpus in federal court by decisions of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded" }, { "docid": "22840998", "title": "", "text": "v. State of Florida, S.D.Fla., 1966, 259 F.Supp. 499. . gee Mobley v. Dutton, 5 Cir., 1967, 380 F.2d 14; Clarke v. Grimes, 5 Cir., 1967, 374 F.2d 550. . Reprinted in full as an appendix to McGarrah v. Dutton, 5 Cir., 1967, 381 F.2d 161, 167. . See, for example, Ga.Code § 50-127 (1): “Any person imprisoned by virtue of a sentence imposed by a State court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia or the laws of the State of Georgia may institute a proceeding under this section. * * * ” See the Appendix to McGarrah v. Dutton, supra; cf. 28 U.S.C.A. § 2255. . See Georgia Habeas Corpus Act of 1967, reprinted as an Appendix to Mc-Garrah v. Dutton, supra: “Section 1. Statement of Legislative Intent and, Purpose. The General Assembly finds that expansion of the scope of habeas corpus in federal court by decisions of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases.” . See notes 14 and 15, infra. . See State of" }, { "docid": "13952048", "title": "", "text": "BELL, Circuit Judge. Appellant alleges in his petition for writ of habeas corpus that he was illegally convicted of two crimes in the Georgia courts in that they arose out of the same transaction, and also that his court appointed counsel failed to appeal his conviction. The District Court denied his petition on the ground of failure to exhaust state remedies, but without prejudice to his seeking a writ at an appropriate date in the future. It appears that no relief was sought in the state court having jurisdiction of appellant. The claim for relief apparently involves the denial of counsel on the theory that he had no counsel to perfect the appeal. He also alleges double jeopardy and cruel and inhuman punishment under the Georgia “same transaction” doctrine. See Harris v. State, 1941, 193 Ga. 109, 118, 17 S.E.2d 573, 147 A.L.R. 980. There is no showing that appellant does not have a presently available remedy in the state court. We thus affirm the denial of the writ by the District Court on the basis that appellant deliberately bypassed a state remedy. Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. The test to be applied in determining whether state remedies have been exhausted is well stated in our recent decision of Whippler v. Balkcom, 5 Cir., 1965, 342 F.2d 388: “The current law of exhaustion is, at the very least, this: * * * If the habeas petitioner raises constitutional issues he has never presented to the state courts, and if the applicant may still present those issues, he must first exhaust his state remedies before applying for federal habeas corpus. However, scope of the state remedy may be so narrow as to be inadequate and the possibil ity of State relief may be so uncertain as to make resort to state courts ineffective. Indeed, relief may be foreclosed by state law. When a federal habeas petition raises a new constitutional issue it is necessary, therefore, to examine state law to determine the utility of applying the exhaustion principle.” In this connection, the Georgia" }, { "docid": "7688799", "title": "", "text": "of judicial procedure. Fay v. Noia radically altered the doctrine in holding that an independent state ground does not arbitrarily bar federal review on habeas corpus. This Court, relying on Fay v. Noia, has held the Georgia ground rule of assuming waiver from a failure to make a timely objection will not be allowed to frustrate the federally guaranteed right of a fairly constituted jury. Whitus v. Balkcom, 5 Cir., 1964, 333 F.2d 496. See the excellent discussion of this subject by Judge Bell in Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95, 101. The Attorney General recognizes that in Fay v. Noia, the United States Supreme Court drastically altered the adequate and' independent state ground doctrine. We should not assume, so the argument runs, that the Georgia Supreme Court will be oblivious of Fay v. Noia. But we are not reduced to assumptions or guesses. In Sims v. Balkcom, 1964, 220 Ga. 7, 136 S.E.2d 766, at p. 768, the “This Court has repeatedly voiced its acceptance of the supremacy rule that it is bound by decisions of the Supreme Court of the United States. Although Fay v. Noia does not alter the decisions of this court, we submit that it does compel a re-examination of the court’s position. If the decisions of this court may be counted for naught and the points which it determines on the basis of state procedural grounds may be relitigated and redetermined in the federal system, Defendant feels that it is incumbent upon this court to modify its former holdings in the light of current demands of the prevailing federal law. ink of Fay v. Noia well dried, the Georgia Supreme Court, citing its own pre-Fay v. Noia decisions, said: “The writ of habeas corpus is never a substitute for a review to correct mere errors of law. [Citations omitted.] It is an available remedy to attack a void judgment. [Citations omitted.] Therefore, we will not review in this proceeding alleged errors in holding one commitment hearing when the accused was without counsel, although his appointed counsel requested and obtained another commitment" }, { "docid": "6306318", "title": "", "text": "testimony regarding the specific facts relating to the advice as a basis for the asserted waiver. Here Solicitor General Burgamy, the person who is supposed to have given the advice is deceased. Whether any other person was present who might have knowledge about the critical facts is not clear. We recognize therefore that this may be a situation where the State, on remand for a new hearing is unable to produce evidence sufficient to carry the burden. In that event, the only alternative would be to invalidate the conviction subject to retrial. But this is the consequence of the failure either to provide counsel or establish a knowing waiver. The disposition we make of this case renders it unnecessary to consider the other contentions raised by McGarrah. We reverse the decision of the District Court and remand the cause with directions to hold a further factual hearing for development of specific facts consistent with this opinion. By way of epilogue these comments certainly are in order. They express both disappointment as to the past and optimism for the days ahead. The disappointment comes from the great likelihood that had McGarrah appealed in the Georgia Courts the denial of habeas, the Supreme Court of Georgia would have found that he had been denied his constitutionally protected right to counsel and set aside the conviction. The. Georgia Supreme Court even under its traditional narrow view of habeas would have, and would now, entertain this right to counsel question. Whippler v. Balkcom, 5 Cir., 1965, 342 F.2d 388; Smart v. Balkcom, 5 Cir., 1965, 352 F.2d 502; Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95. The doctrine of comity requires that a federal habeas petitioner exhaust state court remedies that are available to him when he applies for federal habeas corpus relief. Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. Here the appellant utilized his state remedy through the trial court but took no appeal. We could apply the rule of comity and require him to exhaust his still available state remedy but the state has waived" }, { "docid": "10374130", "title": "", "text": "by decisions of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases.” Obviously aiming to eventually try to petition this court pursuant to 28 U.S.C. § 2254, petitioner is now proceeding in state court under Ga.Code Ann. § 50-127 to try to assert every right guaranteed to him by the Constitution of the United States or Georgia and by the laws of Georgia, that possibly was substantially denied him during his Jones County Superior Court trial. Saying that the state procedure in the case of a death row inmate is not only mandated by state law but is also finally determinative of life itself, he comes into this court before being heard in state court on his petition for habeas corpus and asks this court to find and declare under 42 U.S.C. § 1983 that the State of Georgia by failing to appoint and pay a lawyer to represent him and by failing to pay investigative and witness expenses in his habeas corpus proceeding, is denying him his constitutional rights. The defendants vigorously deny that it is constitutionally necessary to appoint counsel for petitioner or pay such expenses. Not only does petitioner assert that the finality of" }, { "docid": "18763091", "title": "", "text": "in their briefs or at oral argument, the court requested supplemental briefing on this issue. Having received and considered those briefs, we are now able to resolve this issue and finally to decide Spencer’s appeal. Although no official legislative history of the Habeas Corpus Act of 1967 exists, the Act by its terms leaves little doubt concerning its purpose: Section 1. Statement of Legislative Intent and Purpose. The General Assembly finds that expansion of the scope of habeas corpus in federal court by desi-sions [sic] of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have [sic] resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases. 1967 Ga.L. 835. Thus it seems quite likely that, as others have concluded, the Georgia legislature was responding directly to the decision of the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and subsequent interpretations thereof by the Fifth Circuit Court of Ap peals. In Fay v. Noia the Supreme Court held that a federal habeas court could only decline to reach the merits of a federal claim on the grounds of an asserted procedural default where the default amounted to a deliberate bypass of state remedies. 372 U.S. at 438-39," }, { "docid": "18763090", "title": "", "text": "of the Habeas Corpus Act of 1967, provided that in such proceedings Rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly and intelligently. 1967 Ga.L. 835, 836 (codified at Ga.Code § 50-127(1)) (amended 1975). The statute was amended by an act approved April 24, 1975, to exempt from the blanket non-waiver rule challenges to the composition of grand or traverse juries. Petitioner was tried in January, 1975, when the 1967 statute was still in effect. The Georgia courts nonetheless applied the amended version of the statute to Spencer’s state habeas petition, thereby failing to accord him the benefit of the non-waiver provision of the 1967 statute. Because the applicability of the 1967 statute to this federal habeas corpus proceeding was of considerable concern to us and had not been addressed by counsel in their briefs or at oral argument, the court requested supplemental briefing on this issue. Having received and considered those briefs, we are now able to resolve this issue and finally to decide Spencer’s appeal. Although no official legislative history of the Habeas Corpus Act of 1967 exists, the Act by its terms leaves little doubt concerning its purpose: Section 1. Statement of Legislative Intent and Purpose. The General Assembly finds that expansion of the scope of habeas corpus in federal court by desi-sions [sic] of the United States Supreme Court, together with other decisions of said court (a) substantially curtailing the doctrine of waiver of constitutional rights by an accused and (b) limiting the requirement of exhaustion of state remedies to those currently available, have [sic] resulted in an increasingly larger number of state court convictions being collaterally attacked by federal habeas corpus based upon issues and contentions not previously presented to or passed upon by courts of this State; that such increased reliance upon federal courts tends to weaken state courts as instruments" }, { "docid": "18763092", "title": "", "text": "for the vindication of constitutional rights, with a resultant deterioration of the federal system and federal-state relations; that to alleviate said problems, it is necessary that the scope of state habeas corpus be expanded and the state doctrine of waiver of rights modified. The General Assembly further finds that expansion of state habeas corpus to include many sharply-contested issues of a factual nature requires that only the superior courts have jurisdiction of such cases. 1967 Ga.L. 835. Thus it seems quite likely that, as others have concluded, the Georgia legislature was responding directly to the decision of the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and subsequent interpretations thereof by the Fifth Circuit Court of Ap peals. In Fay v. Noia the Supreme Court held that a federal habeas court could only decline to reach the merits of a federal claim on the grounds of an asserted procedural default where the default amounted to a deliberate bypass of state remedies. 372 U.S. at 438-39, 83 S.Ct. at 849. The case before the court concerned directly only the doctrine of exhaustion of state remedies, as the petitioner there had properly presented his claim at trial but failed to appeal it thereafter. Applying Fay v. Noia to other cases, however, the Fifth Circuit found it to have announced a new federal standard of waiver of constitutional rights as the appropriate basis for determining not only whether the federal habeas petitioner had adequately exhausted state remedies, but also whether he could be held to have forfeited his federal rights by failing to raise a timely and proper objection in the sentencing court. Whitus v. Balkcom, 333 F.2d 496, 500-01 (5th Cir.), cert denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). See also Cobb v. Balkcom, 339 F.2d 95, 99 (5th Cir.1964); Whippler v. Balkcom, 342 F.2d 388, 391 (5th Cir.1965) (dictum). The conclusion that these are the decisions to which the Habeas Corpus Act of 1967 was intended to respond is bolstered by the notoriety of those decisions in" }, { "docid": "13952049", "title": "", "text": "basis that appellant deliberately bypassed a state remedy. Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. The test to be applied in determining whether state remedies have been exhausted is well stated in our recent decision of Whippler v. Balkcom, 5 Cir., 1965, 342 F.2d 388: “The current law of exhaustion is, at the very least, this: * * * If the habeas petitioner raises constitutional issues he has never presented to the state courts, and if the applicant may still present those issues, he must first exhaust his state remedies before applying for federal habeas corpus. However, scope of the state remedy may be so narrow as to be inadequate and the possibil ity of State relief may be so uncertain as to make resort to state courts ineffective. Indeed, relief may be foreclosed by state law. When a federal habeas petition raises a new constitutional issue it is necessary, therefore, to examine state law to determine the utility of applying the exhaustion principle.” In this connection, the Georgia Supreme Court has long granted relief by way of habeas corpus in cases involving the denial of trial counsel. See Wilcoxon v. Aldredge, 1941, 192 Ga. 634, 15 S.E.2d 873, 146 A.L.R. 365, and the several cases cited in footnote 5, Whip-pier v. Balkcom, supra. Apparently that court has not yet considered the question of denial of counsel on appeal. It is now settled that an indigent defendant is entitled to counsel on appeal. Douglas v. People of State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. And see Pate v. Holman, 5 Cir., 1965, 343 F.2d 546. It is thus not clear that the remedy of habeas corpus will not lie in the state courts under the circumstances of this case. We are aware of the settled rule of the Supreme Court of Georgia that habeas corpus cannot be used as a substitute for appeal, writ of error, or other remedial procedure for correction of errors or irregularities alleged to have been committed by a trial court. See Cobb v." }, { "docid": "22840986", "title": "", "text": "court, as would the attorneys concerned with the case. Most important is the fact that deference to the State court in this case would further reduce the possibility of friction and fortify the rapport between State and Federal Judges and would strengthen the holding of the Texas Court of Criminal Appeals in Ex parte Young, supra, [418 S.W.2d 824] at p. 270, that the duties and responsibilities of State and Federal Judges in the administration of federal constitutional law are coequal.” State of Texas v. Payton, supra, 390 F.2d at 271. We have done it recently in Florida, see Milton v. Wainwright, supra, as in Texas, and we’ve done the same in Georgia. We are aware, of course, that Georgia has imposed rigid, sometimes technical restrictions on its former habeas corpus relief. See McGarrah v. Dutton, 5 Cir., 1967, 381 F.2d 161, 165; Mobley v. Dutton, supra; Whippier v. Balkcom, 5 Cir., 1965, 342 F.2d 388; Smart v. Balkcom, 5 Cir., 1965, 352 F.2d 502; Cobb v. Balk-com, 5 Cir., 1964, 339 F.2d 95. And there may be some who apprehend that the Georgia courts will interpret or apply the new act with a like approach. One source of difficulty has been its restrictive, distinctly non-federal, rule of waiver. But the new Act seems to have expressly adopted the Federal standards of waiver. But until such time as the Georgia Supreme Court interprets it otherwise, either directly or in its application, we credit — as the Full Faith and Credit Clause of the same Constitution commands — the words used in the Act. The statutory structure is a good one. It retains initial responsibility where it belongs. It gives to the state the opportunity for full development of evidentiary facts in its own courts. If a full and fair evidentiary hearing satisfying Fay v. Noia is held it makes unnecessary in most cases any further factual hearing by a federal court if, after state-court denial of post-conviction relief, the petitioner seeks as he then may, federal court habeas review. Following the statutory structure serves a triple public interest. First, the" }, { "docid": "11888575", "title": "", "text": "THORNBERRY, Circuit Judge: Appellant Montos seeks review of an order of the district court denying his petition for a writ of habeas corpus, after an evidentiary hearing where he was represented by court-appointed counsel. To exhaust his state post-conviction remedies, Montos filed a petition for habeas corpus in the City Court of Reidsville, Georgia, which denied relief. Prior to the date on which appellant filed his federal habeas petition, the State of Georgia enacted its new Habeas Corpus Act, Georgia Code § 50-127, effective July 1, 1967. That statute provides that the “superior courts” of the county of confinement shall have “exclusive jurisdiction” of habeas corpus actions. Appellant therefore has failed to exhaust available state post-conviction remedies. Reardon v. Smith, 5th Cir. 1968, 403 F.2d 773 [November 14, 1968]. In several cases where state prisoners seeking federal habeas relief have failed to exhaust state remedies, this Court has affirmed the denial of relief, but without prejudice to the merits of the claims, thereby in effect remanding the matters for initial state court action. Undeveloped factual issues precluded immediate determination of the merits in the absence of an evidentiary hearing which “should be had ordinarily in those state courts where a fully effective, practicable procedure is available under state law.” Peters v. Rutledge, 5th Cir. 1968, 397 F.2d 731, 735. The district court in this case, however, con ducted an evidentiary hearing and there are no factual issues requiring further development. In these circumstances, the principles of comity, justice, and judicial efficiency underlying the exhaustion doctrine, see Peters v. Rutledge, supra, 397 F.2d at 738, do not call for remand to the state courts. Accordingly, we decide appellant’s claim on its merits. Having studied the briefs and record, we are convinced that the judgment of the court below is correct and that summary disposition of the appeal without oral argument is appropriate. Accordingly, the Clerk of this Court has been directed, pursuant to new Rule 18 of the Rules of the United States Court of Appeals for the Fifth Circuit, to transfer this ease to the summary calendar and notify the" }, { "docid": "22841000", "title": "", "text": "Texas v. Payton, supra, 390 F.2d at 270: “We believe however that principles of comity, of cooperation and of rapport between the two sovereigns require a different disposition. We remand with instructions to deny any relief and dismiss the Writ, without prejudice to Pay-ton’s right to reapply for relief to the State court in which he was convicted.” . See also Woodbury v. Beto, 5 Cir., 1968, 395 F.2d 189; Taylor v. Beto, 5 Cir., 1968, 392 F.2d 566; Beto v. Conley, 5 Cir., 1968, 393 F.2d 497; Waters v. Beto, 5 Cir., 1968, 392 F.2d 74. . See Mobley v. Dutton, 5 Cir., 1967, 380 F.2d 14; Clarke v. Grimes, 5 Cir., 1967, 374 F.2d 550. We said in the Clarice case, 374 F.2d at 552-553 that “in the exercise of comity and good federalism as well as proper federal-state relations, the Georgia state courts should first have an opportunity to rule on this question as presented in this case. It would be unseemly in our dual system of government under these circumstances for a federal court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Following this reasoning, we held that Clarke was required to exhaust the state remedy then available to him even though Georgia case law indicated that his attack on the constitutional validity of qualifying jurors for the death penalty would not be successful. Likewise, in Mobley v. Dutton, supra, we held that the Georgia state court was the proper forum, under the new Habeas Corpus Act of 1967, to determine the facts surrounding Mobley’s allegedly coerced confession despite the fact that he had technically exhausted his state remedies by presenting his contentions on direct appeal. . Compare Cobb v. Balkcom, supra, and Smart v. Balkcom, supra, with Strauss v. Grimes, 1967, 223 Ga. 834, 158 S.E.2d 404, and Clarke v. Grimes, 1967, 223 Ga. 461, 156 S.E.2d 91. . Following the first sentence set forth in note 10 supra, § 50-127(1) expressly provides: “Bights conferred or secured by the Constitution of the United States shall" }, { "docid": "20811402", "title": "", "text": "any state process. See “A Handbook of Federal Habeas Corpus” by Ronald P. Sokol, 1965 ed., pages 110-112. Moreover, habeas corpus has been entertained in cases where a speedy trial issue has been invoked before a state trial has been held and there has been a judgment. May v. Georgia (5 Cir. 1969), 409 F.2d 203. See also Kane v. State of Virginia (4 Cir. 1970), 419 F.2d 1369. The threshold question in all federal habeas corpus cases is whether or not a federal habeas corpus applicant has first exhausted his available state remedies before turning to federal courts to seek relief. Such a question is a question of law, not of fact. The exhaustion provision is not one defining power of this Court but one which relates to the appropriate exercise of its power; that is, it is rooted in considerations of comity and not on a want of power or jurisdiction. While the rule of comity between federal and state courts is one of sound public policy and should be applied with a spirit of liberality, its application must depend somewhat on the circumstances of the case before the Court. Plummer v. State of Louisiana (E.D.La.1967), 262 F.Supp. 1021. The requirement that a petitioner of a writ of habeas corpus must have exhausted remedies available in the state courts rests upon regard for the sovereignty of the state, upon considerations of practical efficiency, the interest of the federal courts, and regards for the rights of prisoners. Rose v. Dickson (9 Cir. 1964), 327 F.2d 27. The United States Supreme Court has expressed : “The requirement that state remedies be exhausted before relief is sought in the federal courts is grounded primarily upon the respect which federal courts have for the state judicial process and upon the administrative necessities of the federal judiciary. State courts are duty bound to give full effect to federal constitutional rights and it cannot be assumed that they will be derelict in their duty. Only after state remedies have been exhausted without the federal claims having been vindicated, may federal courts properly intervene. Indeed," }, { "docid": "18763093", "title": "", "text": "83 S.Ct. at 849. The case before the court concerned directly only the doctrine of exhaustion of state remedies, as the petitioner there had properly presented his claim at trial but failed to appeal it thereafter. Applying Fay v. Noia to other cases, however, the Fifth Circuit found it to have announced a new federal standard of waiver of constitutional rights as the appropriate basis for determining not only whether the federal habeas petitioner had adequately exhausted state remedies, but also whether he could be held to have forfeited his federal rights by failing to raise a timely and proper objection in the sentencing court. Whitus v. Balkcom, 333 F.2d 496, 500-01 (5th Cir.), cert denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). See also Cobb v. Balkcom, 339 F.2d 95, 99 (5th Cir.1964); Whippler v. Balkcom, 342 F.2d 388, 391 (5th Cir.1965) (dictum). The conclusion that these are the decisions to which the Habeas Corpus Act of 1967 was intended to respond is bolstered by the notoriety of those decisions in Georgia legal circles in the mid-1960’s and the striking similarity of the terms of the waiver provision of the 1967 statute to the language used by the Supreme Court to describe its holding in Fay v. Noia. The 1967 statute addressed habeas corpus, not direct appeal. The Georgia courts continued to hold consistently that a defendant’s failure to raise a timely constitutional challenge to the composition of a grand or traverse jury array constituted a waiver of the right to raise such a claim later on direct appeal. See, e.g., Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976), Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976); Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975); Young v. State, 232 Ga. 285, 206 S.E.2d 439 (1974); Williams v. State, 232 Ga. 203, 206 S.E.2d 37 (1974); Simmons v. State, 226 Ga. 110, 172 S.E.2d 680 (1970); Miller" }, { "docid": "22840985", "title": "", "text": "We have taken such action in a number of Texas cases by requiring that petitioners now return to state courts to utilize Article 11.07 in which the Texas Courts, responsive to their awareness of the Supremacy Clause, have infused much vigor by making it the exclusive route. In State of Texas v. Payton, 5 Cir., 1968, 390 F.2d 261, instead of remanding to the Federal District Court for further evidentiary hearings on issues as to which the § 2254 exhaustion of remedies was satisfied, we dismissed the writ thereby in effect requiring the petitioner to proceed first in the state court under the new scheme. What we said there for Texas is true for Georgia too. “The State District Court in which Payton was convicted is in the best position to evaluate and weigh the testimony during and circumstances surrounding the trial and hearing on motion for new trial. The witnesses who testified and who may be needed to testify at any additional hearing deemed necessary under this opinion would be readily available to that court, as would the attorneys concerned with the case. Most important is the fact that deference to the State court in this case would further reduce the possibility of friction and fortify the rapport between State and Federal Judges and would strengthen the holding of the Texas Court of Criminal Appeals in Ex parte Young, supra, [418 S.W.2d 824] at p. 270, that the duties and responsibilities of State and Federal Judges in the administration of federal constitutional law are coequal.” State of Texas v. Payton, supra, 390 F.2d at 271. We have done it recently in Florida, see Milton v. Wainwright, supra, as in Texas, and we’ve done the same in Georgia. We are aware, of course, that Georgia has imposed rigid, sometimes technical restrictions on its former habeas corpus relief. See McGarrah v. Dutton, 5 Cir., 1967, 381 F.2d 161, 165; Mobley v. Dutton, supra; Whippier v. Balkcom, 5 Cir., 1965, 342 F.2d 388; Smart v. Balkcom, 5 Cir., 1965, 352 F.2d 502; Cobb v. Balk-com, 5 Cir., 1964, 339 F.2d 95. And" }, { "docid": "6306319", "title": "", "text": "optimism for the days ahead. The disappointment comes from the great likelihood that had McGarrah appealed in the Georgia Courts the denial of habeas, the Supreme Court of Georgia would have found that he had been denied his constitutionally protected right to counsel and set aside the conviction. The. Georgia Supreme Court even under its traditional narrow view of habeas would have, and would now, entertain this right to counsel question. Whippler v. Balkcom, 5 Cir., 1965, 342 F.2d 388; Smart v. Balkcom, 5 Cir., 1965, 352 F.2d 502; Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95. The doctrine of comity requires that a federal habeas petitioner exhaust state court remedies that are available to him when he applies for federal habeas corpus relief. Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. Here the appellant utilized his state remedy through the trial court but took no appeal. We could apply the rule of comity and require him to exhaust his still available state remedy but the state has waived the question of exhausting the available state remedy. This selective waiver practice on the part of the state diminishes our federalism in the area of the obligation of the state to maintain its own system of criminal justice. Our optimism, however, comes from the fact that the problem will not be a recurring one. Georgia has just enacted the new comprehensive post-conviction procedure, effective July 1, 1967, Habeas Corpus Act of 1967, Act No. 562 (S.B. 171), Ga.Laws, pp. 835-839, 1967 Sess., approved April 18, 1967 (see Appendix). Georgia has equipped itself with flexible adequate tools to meet Georgia’s responsibility in the vindication of federal constitutional rights in the trial of criminal cases. This is where it belongs. The role of the Federal Courts will, as it should be, more and more reduced. Reversed and remanded. APPENDIX. AN ACT To amend Code Title 50, relating to habeas corpus, so as to provide a new exclusive procedure for persons whose liberty is being restrained by virtue of a sentence imposed against them by any state court" } ]

[ { "docid": "23273386", "title": "", "text": "reorganization proceedings. See, e.g., In re Rockwood Computer Corp., 61 B.R. 961, 964-65 (Bankr.S.D. Ohio 1986). Tension exists, however, between the need to interpret this statute broadly to effectuate its purposes, In re Russell Transfer, Inc., 59 B.R. 871, 873 (Bankr.W.D.Va.1986), and the requirement that administrative expenses of the estate be kept to a minimum, In re Baldwin-United Corp., 43 B.R. 443, 451-52 (S.D. Ohio 1984). While it has been stated that a substantial contribution consists of services which “foster and enhance, rather than retard or interrupt the progress of reorganization,” In re Richton Int’l. Corp., 15 B.R. 854, 856 (Bankr.S.D.N.Y.1981), recent caselaw indicates that this is a mere starting point for determining whether services are compen-sable under the statute. Among the factors most often considered are the following: 1) Were the services rendered solely to benefit the client, or to benefit all of the parties to the case? In re General Oil Distributors, Inc., 51 B.R. 794, 805 (Bankr.E.D.N.Y.1985) ( ... [A]n incidental benefit to the estate or the estate’s creditors will not provide the basis for an award from the estate. For example, such nonreimburseable services undoubtedly include those rendered in prosecuting a creditor’s claim.); see also, In re Ace Finance Co., 69 B.R. 827, 829 n. 1 (Bankr.N.D.Ohio 1987); In re Rockwood Computer Corp., 61 B.R. 961, 966 (Bankr.S.D.Ohio 1986). 2) Did the services provide a direct, significant and demonstrable benefit to the estates? In re Consol. Bancshares, Inc., 785 F.2d 1249, 1252-53 (5th Cir. 1986); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 569 (Bankr.D.Utah 1985); In re Calumet Realty Co., 34 B.R. 922, 926 (Bankr.E.D.Pa.1983). 3) Were the services rendered duplica-tive of services rendered by attorneys for the committee, the committees themselves, or the debtor and its attorneys? In re Rockwood Computer Corp., 61 B.R. 961, 966 (Bankr.S.D.Ohio 1986). The imprecision of these terms reflects the inherent imprecision of the inquiry generally. Ultimately, what constitutes a substantial contribution must be left to the informed discretion of the Court based upon the time sheets and other relevant evidence, to which we now turn. 1. First National" } ]

[ { "docid": "13848153", "title": "", "text": "interest, the Court has an independent duty to examine attorney’s fee applications. In re Pettibone Corp., 74 B.R. 293, 299-300 (Bankr.N.D.Ill.1987); In re S.T.N. Enterprises, Inc., 70 B.R. 823, 831 (Bankr.D.Vt. 1987); In re Westfall, 73 B.R. 186, 189 (Bankr.W.D.Ark.1986). First, as argued by Paine Webber at the hearing, the Gill Law Firm cannot be compensated for services performed from October 15, 1987, to January 28, 1988, because no order was entered authorizing the Gill Law Firm to represent the estate prior to January 28, 1988. Dwyer & Collora cannot be compensated for any of its services because no order was ever entered approving its employment. An attorney is not entitled to compensation from the estate in a case under chapter 11 unless prior thereto an order is entered approving the employment of the attorney pursuant to 11 U.S.C. § 327(a) and Bankruptcy Rule 2014(a). See Credit Alliance Corp. v. Boies (In re Crook), 79 B.R. 475, 477 (Bankr. 9th Cir.1987); Lavender v. Wood Law Firm, 785 F.2d 247, 248 (8th Cir.1986); Albers v. Dickinson, 127 F.2d 957, 961 (8th Cir.1942); In re Independent Sales Corp., 73 B.R. 772, 775-76 (Bankr.S.D.Iowa 1987); In re S.T.N. Enterprises, Inc., 70 B.R. at 831; In re Jackson, 60 B.R. 593, 600 (Bankr.W.D.Ark.1986); In re McKinney Ranch Associates, 62 B.R. 249, 251 (Bankr. C.D.Cal.1986); In re Amherst Mister Anthony’s Ltd., 63 B.R. 292, 293-94 (W.D.N.Y.1986); In re Schaak Electronics, Inc., 63 B.R. 830, 832 (Bankr.D.Minn.1986); In re Nashville Union Stockyard Restaurant Co., Inc., 54 B.R. 391, 395-96 (Bankr.M.D. Tenn.1985); In re Guy Apple Masonry Contractor, Inc., 45 B.R. 160, 162 (Bankr. D.Ariz.1984); Kressel v. Kotts (In re Schaffer), 34 B.R. 388, 391 (D.Minn.1983); In re Glinz, 36 B.R. 17, 18 (Bankr.D.N.D.1983); 2 Collier on Bankruptcy ¶ 327.02 (15th ed. 1988). As stated in 2 Collier on Bankruptcy 11 327.02 at p. 327-7: When there is no compliance with the Code or rules, a professional may forfeit his right to compensation. The services for which compensation is requested should have been performed pursuant to appropriate authority under the Code and in accordance with an order" }, { "docid": "8345643", "title": "", "text": "absent exceptional circumstances); In re Sinor, 87 B.R. 620, 624 (Bankr.E.D.Cal.1988) ($50 per hour); In re Amatex Corp., 70 B.R. 624, 627 (Bankr.E.D.Pa.1985) ($40 per hour); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988) Qk of hourly rate); In re S.T.N. Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987) (% of hourly rate); In re C & J Oil Co., 81 B.R. 398, 404 (Bankr.W.D.Va.1987) (75% of hourly rate); In re Carter, 101 B.R. 170, 171 (Bankr.D.S.D.1989) (full hourly rate). Non-bankruptcy courts also do not provide a clear direction, see, e.g., United States v. State of Washington, 626 F.Supp. 1405, 1447 n. 23 (W.D.Wash.1985) ($40 per hour); Maciera v. Pagan, 698 F.2d 38, 40 (1st Cir.1983) (V2 of hourly rate); McDonald v. Armontrout, 860 F.2d 1456, 1463 (8th Cir.1988) (V2 of hourly rate); Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 396 (8th Cir.1987) (full hourly rate); Craik v. Minnesota State University Board, 738 F.2d 348, 350 (8th Cir.1984) (full hourly rate). The only principle that is eminently clear from these cases is that the courts have broad discretion in awarding fees, In re Temple Retirement Community, 97 B.R. 333, 336 (Bankr.W.D.Tex.1989). For guidance this Court shall look to § 330(a)(1) of the Bankruptcy Code, which allows “reasonable compensation for actual, necessary services,” 11 U.S.C. § 330(a)(1) (1990), and the principles underlying it. The former Bankruptcy Act's preoccupation with frugality and economy to the estate’s assets was abandoned in the new Code and was replaced by a concern for attracting quality practitioners to the bankruptcy field, Boston and Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890, 897 (1st Cir.1985); In re McCombs, 751 F.2d 286, 288 (8th Cir.1984). Although economy to the estate is still a consideration when determining the appropriateness of fees, Boston and Maine Corp., 778 F.2d at 898; Carter, 101 B.R. at 172; Temple Retirement Community, 97 B.R. at 336-37, this Court has previously held and still believes that bankruptcy courts must “insure that bankruptcy specialists receive no less compensation for the value of their services than their counterparts in other areas" }, { "docid": "22862341", "title": "", "text": "bankruptcy proceeding.” Cohen & Thiros v. Keen Enterprise, supra, 44 B.R. at 573. “The detailed fee applications enable the bankruptcy court to fulfill its obligations to examine carefully the requested compensation in order to ensure that the claimed expenses are justified.” In re Nucorp Energy, Inc., 764 F.2d 655, 658 (9th Cir.1985) (emphasis added). Clearly, the bankruptcy judge has the broadest discretion to review and question applications for compensation. Indeed, he has the inescapable statutory responsibility to do so. To enable the Court to review fee petitions, some organization of the petition is required, and meaningful information is necessary to be collated by subject matter and time value for each project worked on. This Court and several of the other Bank ruptcy Judges in this District routinely require the fee petitions to be organized as required in In re Continental Illinois Securities Litigation, 572 F.Supp. 931 (N.D. Ill.1983), and so required A & F in this case. A. Properly Compensable Legal Services In certain circumstances not applicable here, an attorney may not be awarded any fees at all. For example, an attorney for the debtor or trustee whose appointment has not been approved by the court may not receive any compensation from the estate. See In re Vlachos, 61 B.R. 473, 477-79 (Bankr.S.D. Ohio 1986). Also, an application for attorney’s fees may be denied or reduced where the attorney has a conflict of interest. See, e.g., In re Central Ice Cream, 59 B.R. 476 (Bankr.N. D.Ill.1985); In re N.S. Garrott & Sons, 54 B.R. 221, 225 (Bankr.E.D.Ark.1985). More germane to this case, an attorney is never entitled to professional compensation for performing duties which the Bankruptcy Code imposes upon the trustee. In re Taylor, 66 B.R. 390, 392 (Bankr.W.D.Pa.1986); In re Vlachos, 61 B.R. 473, 479 (Bankr.S.D. Ohio 1986); In re Shades of Beauty, Inc., 56 B.R. 946, 949 (Bankr. E.D.N.Y.1986); In re Minton Group, Inc., 33 B.R. 38, 40 (Bankr.S.D.N.Y.1983). The maximum compensation for trustees is calculated by a percentage of the monies brought into the estate by the trustee’s services. 11 U.S.C. § 326. The duties of a" }, { "docid": "8345642", "title": "", "text": "ORDER W. HOMER DRAKE, Jr., Bankruptcy Judge. On August 10, 1990, counsel for the above referenced Debtors filed an application for interim compensation asking for $20,130.00 for attorney’s fees, including $525.00 for travel time between Atlanta and the Newnan division representing 3.5 hours at Applicant’s full hourly rate of $150.00, plus $493.87 for actual expenses. The United States Trustee’s office filed comments concerning the application on August 20, one of which was that the travel time should not be compensated at a full hourly rate. This particular issue was taken under advisement at a hearing held on September-14. The Bankruptcy Courts in this District have not definitively ruled on whether travel time between the divisions should be compensated at a full hourly rate, nor is there a consensus among the nation’s bankruptcy courts as to how travel time should be compensated, see, e.g., In re Seneca Oil Co., 65 B.R. 902, 909 (Bankr.W.D.Okl.1986) (travel time should not be billed); In re Four Star Terminals, Inc., 42 B.R. 419, 442 (Bankr.D.Alaska 1984) (travel time not allowed absent exceptional circumstances); In re Sinor, 87 B.R. 620, 624 (Bankr.E.D.Cal.1988) ($50 per hour); In re Amatex Corp., 70 B.R. 624, 627 (Bankr.E.D.Pa.1985) ($40 per hour); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988) Qk of hourly rate); In re S.T.N. Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987) (% of hourly rate); In re C & J Oil Co., 81 B.R. 398, 404 (Bankr.W.D.Va.1987) (75% of hourly rate); In re Carter, 101 B.R. 170, 171 (Bankr.D.S.D.1989) (full hourly rate). Non-bankruptcy courts also do not provide a clear direction, see, e.g., United States v. State of Washington, 626 F.Supp. 1405, 1447 n. 23 (W.D.Wash.1985) ($40 per hour); Maciera v. Pagan, 698 F.2d 38, 40 (1st Cir.1983) (V2 of hourly rate); McDonald v. Armontrout, 860 F.2d 1456, 1463 (8th Cir.1988) (V2 of hourly rate); Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 396 (8th Cir.1987) (full hourly rate); Craik v. Minnesota State University Board, 738 F.2d 348, 350 (8th Cir.1984) (full hourly rate). The only principle that is eminently clear from these cases is that" }, { "docid": "10221026", "title": "", "text": "with reference to the factors delineated in Section 330(a)(1). In re Gulf Consolidated Services, Inc., 91 B.R. 414, 420 (Bankr.S.D.Tex.1988). 1. Determining that services were actual and necessary With other courts that have considered the question, this court requires attorneys to set out their services as rendered in sufficient detail for the court to determine what work was done, by whom it was done, how long it took to do, whether there has been any duplication of effort, and what results were achieved. In this way, the court is given the data with which to determine that the compensation requested is for actual and necessary services. 11 U.S. C. § 330(a)(1); Matter of Pontiac Hotel Associates, 92 B.R. 715, 716 (E.D.Mich. 1988) (“requests for fees [must] be carefully itemized in order that the bankruptcy court may eliminate excessive charges, or wasteful services and expenditures of professional time”). Generally, this requires each attorney who works on the case to maintain detailed, contemporaneous time records in sufficient detail to accurately re-create for the court what the firm in fact did for the client. “The detailed fee applications enable the bankruptcy court to fulfill its obligations to examine carefully the requested compensation in order to ensure that the claimed expenses are justified.” In re Nucorp Energy, Inc., 764 F.2d 655, 658 (9th Cir.1985); see also In re Beverly Mfg. Corp., 841 F.2d 365, 370 (11th Cir. 1988); In re Westside Creek Ltd. Partnership, 93 B.R. 177, 180 (Bankr.E.D.Ark. 1988) (citing numerous authorities); Matter of W.T. Grant Co., 85 B.R. 250, 261 (Bankr.S.D.N.Y.1988) (applying similar requirements in a case under the former Bankruptcy Act); In re C & J Oil Co., Inc., 81 B.R. 398, 403 (Bankr.W.D.Va.1987); Matter of Pothoven, 84 B.R. 579, 583-84 (Bankr.S.D.Ia.1988); In re Baldwin-United Corp., 79 B.R. 321, 337 (Bankr.S.D.Ohio 1987); In re Pettibone Corp., 74 B.R. 293, 301 (Bankr.N.D.Ill.1987); In re S.T.N. Enterprises, 70 B.R. 823, 832-33 (Bankr.D.Vt. 1987); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 582 (Bankr.D.Utah 1985). Attorneys who practice regularly in the Western District of Texas are already aware of the standards courts of this" }, { "docid": "13934965", "title": "", "text": "also, In re Hotel Associates, Inc., 15 B.R. 487 (Bankr.E.D.Pa.1981). Further, compensation is not allowed for performing clerical, ministerial, or secretarial services. In re Bonds Lucky Foods, Inc., No. 1, 76 B.R. 664 (Bankr.E.D.Ark. 1986); In re S.T.N. Enterprises, Inc., 70 B.R. 823 (Bankr.D.Vt.1987); but cf. In re Wabash Valley Power Ass ’n., Inc., 69 B.R. 471 (Bankr.S.D.Ind.1987); 11 U.S.C. § 328(b), Cle-Ware Industries, Inc., 493 F.2d at 874. Further, the number of attorneys involved may be excessive in this matter. See, In re Farwell, 77 B.R. 198 (N.D.Ill.1987) (where the use of 13 attorneys was excessive). Fees allocated to research may be limited where the attorney is supposed to be an expert, if research time is excessive, or if it is allocated to routine bankruptcy issues. In re Wittman Eng’g. & Mfg. Co., Inc., 66 B.R. 488 (Bankr.N.D.Ill.1986); In re Parameswaran, 64 B.R. 341 (Bankr.S.D.N.Y.1986). CONFERENCES AMONG ATTORNEYS Interoffice conferencing must be scrutinized to ascertain the contribution to the estate. This has to be viewed on a case by ease basis, and the totality 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" }, { "docid": "23002442", "title": "", "text": "the proceeding before the Court: What amount of compensation has Katten earned in this case? Even if no objections are raised to a fee request, the bankruptcy court is not bound to award the fees sought, and in fact has a duty to independently examine the reasonableness of all fee applications. In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986); In re Pettibone 74 B.R. 293, 299-300 (Bankr.N.D.Ill.1987). Here, of course, the trustee and the United States raise serious questions about the amount of compensation to be awarded Katten. The Court has conducted extensive hearings on those objections and a great deal of evidence has been adduced by both sides. Bankruptcy Rule 2016, which governs compensation for services and expenses, sets forth the information which must appear in a fee application. That information includes: “[A] detailed statement of ... the services rendered, time expended, expenses incurred and ... the amounts requested.” Bankruptcy Rule 2016 (emphasis added). In all fee requests, the fee application is inevitably the starting point for analysis. It is the crucial document in any fee matter. “The primary objective of any fee petition is to reveal sufficient information to enable the Court to determine whether the services rendered were reasonable, actual and necessary.” Pettibone at 301, citing In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 582 (Bankr.D. Utah 1985). “It is beyond question that an attorney applying for fees under any fees statute has an obligation to provide accurate and detailed records for the services for which he or she claims reimbursement.” Stickney Corp. v. Chicago Milwaukee Corp., 840 F.2d 1308, 1318 n. 7 (7th Cir.1988). This Court’s colleague, Judge Jack B. Schmetterer, in a well written analysis, has assembled detailed criteria to be applied in analyzing a fee application such as that submitted by Katten. See Pettibone, 74 B.R. at 301-04. The discussion below sets out some of those criteria. 1. Itemized Daily Entries. A proper fee application must list each activity, its date, the attorney who performed the work, a description of the nature and substance of the work performed, and the time spent" }, { "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": "13912357", "title": "", "text": "with the client; .and 12. Awards in similar cases. Id. at 717-719. As pointed out by Judge Matheson in In re Lederman Enterprises, Inc., 106 B.R. 674 (Bankr.D.Colo.1989), the application of the Johnson standards becomes more difficult when applied to a bankruptcy proceeding where there are a wide variety of issues. More recently the Supreme Court reaffirmed its view that “the Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation.” Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 945, 103 L.Ed.2d 67 (1989). There are other settled points of law concerning the determination of attorneys’ fees. One is that the fee applicant bears the burden of proof in all fee matters. E.g., In re Gray hall Resources, Inc., Case No. 86 B 3547 E, 1990 WL 314011 (Bankr.D.Colo. March 21, 1990); In re Jensen-Farley Pictures, Inc., 47 B.R. 557 (Bankr.D.Utah 1985). Another point is that the entries on the billing statements must contain adequate detail and analysis of each task so that the Court may discern the nature or substance of the services. E.g., Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983); In re Seneca Oil Company, 65 B.R. 902 (Bankr.W.D.Okla.1986). Hence, where services are listed or lumped together without any specific indication of the time spent on each service the explanation is inadequate. See, e.g., In re Beverly Manufacturing Corporation, 841 F.2d 365 (11th Cir.1988). Furthermore, the Court must resolve any uncertainties arising due to inadequate records against the Applicants. E.g., Jensen-Farley, 47 B.R. at 582. As the court noted in In re Kroh Brothers Development Co., 105 B.R. 515, 525 (Bankr.W.D.Mo.1989), The Court should not be required to indulge in guesswork, nor undertake extensive labor to justify a fee for an attorney who has not done so himself. We do not find it to be an unbearable burden to require an attorney seeking compensation to enlighten the Court as to the nature of his toil and the relation it bears to" }, { "docid": "23201186", "title": "", "text": "be compensated. In re Jensen-Farley Pictures, Inc., 47 B.R. 557 (Bankr.D.Utah 1985). Completing time sheets and preparing and presenting motions for reimbursement of fees and expenses can be a tedious task. Such efforts are required to assure that the standards of the Code are followed and to provide an objective basis upon which a court may allow compensation. Some courts provide compensation from the estate for these efforts on the basis that accurate and detailed records assist administration of the estate. In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.1985); In re Jensen-Farley Pictures, 47 B.R. 557 (Bankr.D.Utah 1985); In re Four Star Terminals, Inc., 42 B.R. 419 (Bankr.D.Alaska 1984); In re Advance Press & Litho, Inc., 46 B.R. 700 (Bankr.D.C.Colo.1984). Other courts view this time as a necessary expense of doing business and, therefore, do not allow compensation. In re Hotel Associates, Inc., 28 B.R. 332 (Bankr.E.D.Pa. 1983); Matter of Liberal Market, Inc., 24 B.R. 653 (Bankr.S.D.Ohio 1982); In re Nova Real Estate Inv. Trust, 25 B.R. 252 (Bankr.E.D.Va.1982); In re Absco, Inc., 23 B.R. 250 (Bankr.E.D.Pa.1982); In re Cipriano, 8 B.R. 697 (Bankr.D.R.I.1981). Several of these cases follow the reasoning of civil rights cases regarding attorney fees. The purpose of compensation for efforts to resolve fee issues under 42 U.S. C.A. § 1988 (West 1981) is to encourage attorneys to represent clients who would otherwise be unable to obtain counsel and to act as private attorneys general in vindicating federal civil rights policies. Hernandez v. George, 793 F.2d 264 (10th Cir.1986). The purpose of the Bankruptcy Code provisions allowing compensation are not completely analogous. We are to encourage participation in bankruptcy matters and assure compensation reasonably equivalent to that received by professionals outside the bankruptcy area. It is important that fees be economical but not ‘parsimonious’ so that competent counsel will be available. In re WHET, Inc., 58 B.R. 278 (Bankr.D.Mass.1986). Cases deciding issues related to statutory attorney fees in other areas of law are instructive but not necessarily applicable under the Code. We have held previously that efforts to prepare and present fee applications are not" }, { "docid": "10221027", "title": "", "text": "in fact did for the client. “The detailed fee applications enable the bankruptcy court to fulfill its obligations to examine carefully the requested compensation in order to ensure that the claimed expenses are justified.” In re Nucorp Energy, Inc., 764 F.2d 655, 658 (9th Cir.1985); see also In re Beverly Mfg. Corp., 841 F.2d 365, 370 (11th Cir. 1988); In re Westside Creek Ltd. Partnership, 93 B.R. 177, 180 (Bankr.E.D.Ark. 1988) (citing numerous authorities); Matter of W.T. Grant Co., 85 B.R. 250, 261 (Bankr.S.D.N.Y.1988) (applying similar requirements in a case under the former Bankruptcy Act); In re C & J Oil Co., Inc., 81 B.R. 398, 403 (Bankr.W.D.Va.1987); Matter of Pothoven, 84 B.R. 579, 583-84 (Bankr.S.D.Ia.1988); In re Baldwin-United Corp., 79 B.R. 321, 337 (Bankr.S.D.Ohio 1987); In re Pettibone Corp., 74 B.R. 293, 301 (Bankr.N.D.Ill.1987); In re S.T.N. Enterprises, 70 B.R. 823, 832-33 (Bankr.D.Vt. 1987); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 582 (Bankr.D.Utah 1985). Attorneys who practice regularly in the Western District of Texas are already aware of the standards courts of this district regularly impose for fee applications. The following comments are intended to be instructive rather than exhaustive. Services should be reported to the nearest tenth of an hour, and must not be lumped together. In re Westside Creek Ltd. Partnership, 93 B.R. 177, 180 (Bankr. E.D.Ark.1988). It is not sufficient to simply describe a given service as “telephone call with bank counsel,” for example, without indicating in some way the function or substance of the telephone call. In re Pet-tibone Corp., 74 B.R. at 301, Matter of Pothoven, supra at 584; In re Westside Creek Ltd. Partnership, supra at 180. Counsel should supplement their time records with written narrative that places the services rendered in context so that the court can evaluate the necessity of their rendition. In re Pettibone Corp., 74 B.R. at 300. Attorneys are expected to exercise billing judgment. They should therefore exclude from their applications, prior to their submission, time spent which, upon reflection, is excessive, redundant, unjustifiable, or otherwise unnecessary. This represents no more than the selfsame billing judgment attorneys" }, { "docid": "6945810", "title": "", "text": "the service was provided solely for the client-as-creditor. Richton, 15 B.R. at 856. Moreover, the key bankruptcy policy of similar treatment of similar claims, see Granada Wines, Inc. v. New England Teamsters and Trucking Industry Pension Fund, 748 F.2d 42, 46-47 (1st Cir. 1984); In re Mastercraft Record Plating Co., 32 B.R. 106, 8 Collier Bankr.Cas.2d (MB) 1268 (Bankr.S.D.N.Y.1983), rev’d on other grounds, 39 B.R. 654 (S.D.N.Y.1984), absent highly compelling justification for differentiation, see Teamsters Nat’l Freight Industry Negotiating Committee v. U.S. Truck Co., Inc. (In re U.S. Truck Co., Inc.), 800 F.2d 581, 586 n. 8 (6th Cir.1986); In re Atlanta West VI, 91 B.R. 620, 625, 18 Bankr.Ct.Dec. (CCR) 520, Bankr.L. Rep. (CCH) 1172469 (Bankr.N.D.Ga.1988); In re AG Consultants Grain Division, Inc., 77 B.R. 665, 674 (Bankr.N.D.Ind.1987), not present here, would have lead to the same equal recognition given by U.S.L. in its plan. In addition, the compensation requested for work done in connection with the fee application itself is denied. How that preparation conferred a substantial benefit on the estate is not stated. Regardless of the debate regarding allowance of time spent in preparation of fee applications under § 330 of the Bankruptcy Code permitting fees and expenses to be awarded upon a lesser showing of “actual [and] necessary services,” 11 U.S.C. § 330(a)(1) (1986), compare In re White Motor Credit Corp., 50 B.R. 885, 893 (Bankr.N.D.Ohio 1985) (Applicant not entitled to payment for preparation of allowance application) with In re Nucorp Energy Inc., 764 F.2d 655, 659 (9th Cir.1985), In the Matter of Pothoven, 84 B.R. 579, 586 (Bankr.S.D.Iowa 1988) and In re Wildman, 72 B.R. 700, 710, 15 Bankr.Ct.Dec. 1189 ((Bankr.N.D.Ill.1987) (Such expenses allowed in part), the “substantial contribution” test does not permit such an award. The cases relied upon by Wisehart in support of its request are inapplicable. Neither Gagne v. Maher, 594 F.2d 336 (2d Cir.1979), aff'd, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) nor Robert v. Sobel, 688 F.Supp. 861 (S.D.N.Y.1988) involved §§ 503(b)(3) and (4) and the “substantial contribution” test. In light of U.S.L.’s support of Wisehart’s “substantial" }, { "docid": "13934967", "title": "", "text": "forms a major part of many fee petitions”. In re Pettibone Corp., 74 B.R. at 303; In re Amatex Corp., 70 B.R. [624,] at 626 [ (Bkrtcy.E.D.Pa.1985) ]. The bankruptcy estate should not bear the cost of compensating each attorney present at an intra-office conference unless counsel can show that the estate benefitted from each attorney’s special area of expertise. In the absence of a showing of the purpose of the conference and why the conference was essential to efficient management of the case, this court will not award full compensation to each attorney present at the conference. In re Amatex Corp., 70 B.R. at 626. The same reasoning applies to duplicative court appearances. Id. See also, In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 583 (Bankr.D.Utah 1985). When more than one attorney appears in court, no fee or a reduced fee should be sought for non-participating counsel. This court will examine the frequency and length of duplicative services in individual cases to determine whether a reduction in compensation sought is appropriate, (citation omitted). TRAVEL TIME Courts are divided on how travel time should be treated. Some courts hold that travel time should be compensated at 50% of the attorney’s normal hourly rate. In re Taylor, 66 B.R. 390 (Bankr.W.D.Pa.1986). However, other courts have refused to discount travel time. In re Frontier Airlines, Inc., 74 B.R. 973 (Bankr.D.Colo. 1987). This court has previously held that travel time should be billed at a reduced rate. In re Microwave Products of America, 104 B.R. 900 (Bankr.W.D.Tenn.1989). EXPENSES All expenses must be adequately documented in order to be reimbursed, and must be incurred by a “professional person” under § 327(a) or § 1103, 11 U.S.C. § 330(a). In re Washington Mfg. Co., 101 B.R. 944 (Bankr.M.D.Tenn.1989). Further, time entries for telephone calls, conferences, research, etc., must indicate the persons involved, and the subject matter. In re Pettibone Corp., 74 B.R. 293 (Bankr.N.D.Ill.1982). The actual cost of photocopying, long-distance telephone charges, postal expense, and travel costs may be reimbursed. Matter of Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988). However, charges which are part of the" }, { "docid": "10221018", "title": "", "text": "the independent authority and responsibility to determine the reasonableness of all fee requests, regardless of whether objections are filed.” Matter of Potkoven, 84 B.R. 579, 583 (Bankr.S.D.Ia.1988); In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 585 (Bankr.D.Utah 1985); In re Wilson Foods Corp., 36 B.R. 317, 320 (Bankr.W.D.Okla. 1984); see also 2 Collier on Bankruptcy, para. 328.02 at 328-8 (15th ed.1987); Lavien, Fees as Seen from the Bankruptcy Bench, 89 Com.L.J. 136-138 (March 1984). This duty arises in part from the very wording of the statute, which specifies that, after notice and a hearing, the court may award ... (1) reasonable compensation for actual, necessary services rendered by [the professional] ... 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). The award of fees is discretionary, bounded by (1) whether the compensation is reasonable and (2) whether the services were actually rendered and were necessary. In re Nucorp Energy, Inc., 764 F.2d 655, 658 (9th Cir.1985). Compensation of professionals employed by the debtor is always an appropriate province for judicial scrutiny “to protect the creditors of the estate and the debtor against overreaching by an officer of the court who is in a peculiarly advantageous position to impose on both the creditors and his client.” Bankr.R. 2017, Advisory Comm. Note (1987); 2 Collier on Bankruptcy, para. 329.02 (15th ed.1987). “The numerous limitations imposed by the Bankruptcy Code upon compensation of court-appointed counsel ... are designed to insure the highest standards of ethical conduct and minimize the overhead expenses which can easily deplete a debtor’s estate.” Matter of Consolidated Bancshares, Inc., 785 F.2d 1249, 1255 (5th Cir.1986). A bankruptcy court is also charged with evincing an “over-arching policy of avoiding the waste of the debtor’s estate.” In re Wonder Corp. of America, 82 B.R. 186, 191 (D.Conn.1988), citing" }, { "docid": "23584419", "title": "", "text": "commuting time and no payment will be made for commuting expenses. Going beyond that area, to expenses involved in within-the-Distriet travel to court, some courts do not allow local mileage as an expense. In re UNR Industries, 72 B.R. 796 (Bankr.N.D.Ill.1987); In re Seneca Oil Co., 65 B.R. 902 (Bankr.D.Okla.1986). Others allow local travel at the rate permitted by the Internal Revenue Code. In re S.T.N. Enterprises Inc., 70 B.R. 823 (Bankr.D.Vt.1987); In re C & J Oil Co. Inc., 81 B.R. 398, 404 (Bankr.W.D.Va.1987). Some courts hold that local parking is not compensable. See In re Convent Guardian Corp., 103 B.R. 937 (Bankr.N.D.Ill.1989) and cases cited; In re Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988) (check); In re Carter Enterprises, 55 B.R. 548 (Bankr.C.D.Cal.1985). Others hold that it will be reimbursed. In re C & J Oil Co., 81 B.R. at 404. There is also a split with regard to local cab fare. Compare Boston & Maine Corp. v. Moore, 776 F.2d 2 (1st Cir.1985) and In re UNR Industries, 72 B.R. 796 (Bankr.N.D.Ill.1987) with Timberland Design Inc. v. Federal Deposit Ins. Corp., supra, and In re Beck-Rumbaugh Associates, Inc., 68 B.R. 882 (Bankr.E.D.Pa.1987), aff'd 84 B.R. 369 (E.D.Pa.1987). This Court believes that expenses of travel from the professional’s ordinary place of business within the district to this Court should be reimbursed. They are directly related to the particular matter rather than the general activities of the professional and would not have been incurred except for involvement in the case at hand. Applicants are cautioned, however, that a rule of reason must be applied to such expenses. Subway fares are always reasonable; taxi fares within the city generally so; hired cars or other transportation media may meet with an unfriendly reception from the Court unless specifically justified. If a professional drives to Court, reasonable mileage (the current IRS allowance will be presumed reasonable), tolls, and parking fees are generally allowable. OUT OF TOWN TRAVEL When, under the principle given above, the Court will compensate professionals for travel time away from the District, the reasonable and necessary expenses of that travel" }, { "docid": "23584418", "title": "", "text": "supra: Lexis is an essential tool of the modern, efficient law office. As such, it saves lawyers’ time by increasing the efficiency of legal research. Denial of reimbursement for Lexis charges in a proper case would be an open invitation to law firms to use high-priced attorney time to perform routine research tasks that can be accomplished quicker and more economically with Lexis. Timberland Design Inc. v. Federal Deposit Ins. Corp., 745 F.Supp. at 790. This Court will allow for the reimbursement of computer assisted research. The Court is aware of the potential for abuse of this rule by inexperienced data base users, who will read and/or copy the results of an over-broad search rather than refining it. These expenses will be closely monitored with regard to their cost effectiveness as used by each applicant for reimbursement. TRAVEL EXPENSES (LOCAL) Just as a distinction has been drawn between commuting time, local travel time, and travel time from beyond the district, it is necessary to draw lines between the related expenses. No allowance is made for commuting time and no payment will be made for commuting expenses. Going beyond that area, to expenses involved in within-the-Distriet travel to court, some courts do not allow local mileage as an expense. In re UNR Industries, 72 B.R. 796 (Bankr.N.D.Ill.1987); In re Seneca Oil Co., 65 B.R. 902 (Bankr.D.Okla.1986). Others allow local travel at the rate permitted by the Internal Revenue Code. In re S.T.N. Enterprises Inc., 70 B.R. 823 (Bankr.D.Vt.1987); In re C & J Oil Co. Inc., 81 B.R. 398, 404 (Bankr.W.D.Va.1987). Some courts hold that local parking is not compensable. See In re Convent Guardian Corp., 103 B.R. 937 (Bankr.N.D.Ill.1989) and cases cited; In re Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988) (check); In re Carter Enterprises, 55 B.R. 548 (Bankr.C.D.Cal.1985). Others hold that it will be reimbursed. In re C & J Oil Co., 81 B.R. at 404. There is also a split with regard to local cab fare. Compare Boston & Maine Corp. v. Moore, 776 F.2d 2 (1st Cir.1985) and In re UNR Industries, 72 B.R. 796 (Bankr.N.D.Ill.1987) with" }, { "docid": "10221017", "title": "", "text": "a period of just over six months. A total of 517.90 hours were expended, at an overall average blended rate of $143.80 per hour. The following billing rates are requested in the application: Michael R. Rochelle $195.00/hr. Stephen T. Hutcheson $125.00/hr. [1987]; $145.00/hr. [1988] Patrick J. Neligan $110.00/hr. Pedro V. Hernandez, Jr. $85.00/hr. All travel was billed at one-half the hourly rate of the attorney doing the traveling. Routine services such as reviewing claims, drafting and presenting administrative motions, and maintaining routine communications with the client were handled mostly by Messrs. Hernandez and Hutcheson. Mr. Rochelle was the principal architect of the plan and disclosure statement and conducted the critical negotiations with LeGan, the indenture trustee, and the residents’ council. ANALYSIS In this decision, this court addresses a number of issues common to all fee applications as well as one issue endemic to this fee application. We turn first to the general issues. A. The necessity for independent review by the court At the outset, this court holds with numerous other courts that it “has the independent authority and responsibility to determine the reasonableness of all fee requests, regardless of whether objections are filed.” Matter of Potkoven, 84 B.R. 579, 583 (Bankr.S.D.Ia.1988); In re Pettibone Corp., 74 B.R. 293, 299 (Bankr.N.D.Ill.1987); In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 585 (Bankr.D.Utah 1985); In re Wilson Foods Corp., 36 B.R. 317, 320 (Bankr.W.D.Okla. 1984); see also 2 Collier on Bankruptcy, para. 328.02 at 328-8 (15th ed.1987); Lavien, Fees as Seen from the Bankruptcy Bench, 89 Com.L.J. 136-138 (March 1984). This duty arises in part from the very wording of the statute, which specifies that, after notice and a hearing, the court may award ... (1) reasonable compensation for actual, necessary services rendered by [the professional] ... 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). The award" }, { "docid": "10221028", "title": "", "text": "district regularly impose for fee applications. The following comments are intended to be instructive rather than exhaustive. Services should be reported to the nearest tenth of an hour, and must not be lumped together. In re Westside Creek Ltd. Partnership, 93 B.R. 177, 180 (Bankr. E.D.Ark.1988). It is not sufficient to simply describe a given service as “telephone call with bank counsel,” for example, without indicating in some way the function or substance of the telephone call. In re Pet-tibone Corp., 74 B.R. at 301, Matter of Pothoven, supra at 584; In re Westside Creek Ltd. Partnership, supra at 180. Counsel should supplement their time records with written narrative that places the services rendered in context so that the court can evaluate the necessity of their rendition. In re Pettibone Corp., 74 B.R. at 300. Attorneys are expected to exercise billing judgment. They should therefore exclude from their applications, prior to their submission, time spent which, upon reflection, is excessive, redundant, unjustifiable, or otherwise unnecessary. This represents no more than the selfsame billing judgment attorneys regularly impose upon themselves at the “edit” stage of the billing process before submitting a bill to their private clients. Matter of Pothoven, supra, citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Examples of billing judgment include, by way of example only, billing travel time at one-half their normal hourly billing rate, refraining from billing routine matters at a senior attorney’s premium rate when the service could (or should) have been performed by a junior attorney at that attorney’s lower rate, and billing an amount of attorney time appropriate to the service rendered. When possible, firms are expected to use paralegals and other staff to perform mundane (albeit necessary) tasks such as the preparation of exhibits for trial or the compilation of ballots. Matter of Pothoven, 84 B.R. at 585; In re Amatex Corp., 70 B.R. 624, 627 (Bankr.E.D.Pa. 1985). Attorney conferences are not prohibited, but they must be justified, as they are conducted at a high cost to the estate. See In re Pettibone Corp., 74 B.R. at" }, { "docid": "13848154", "title": "", "text": "127 F.2d 957, 961 (8th Cir.1942); In re Independent Sales Corp., 73 B.R. 772, 775-76 (Bankr.S.D.Iowa 1987); In re S.T.N. Enterprises, Inc., 70 B.R. at 831; In re Jackson, 60 B.R. 593, 600 (Bankr.W.D.Ark.1986); In re McKinney Ranch Associates, 62 B.R. 249, 251 (Bankr. C.D.Cal.1986); In re Amherst Mister Anthony’s Ltd., 63 B.R. 292, 293-94 (W.D.N.Y.1986); In re Schaak Electronics, Inc., 63 B.R. 830, 832 (Bankr.D.Minn.1986); In re Nashville Union Stockyard Restaurant Co., Inc., 54 B.R. 391, 395-96 (Bankr.M.D. Tenn.1985); In re Guy Apple Masonry Contractor, Inc., 45 B.R. 160, 162 (Bankr. D.Ariz.1984); Kressel v. Kotts (In re Schaffer), 34 B.R. 388, 391 (D.Minn.1983); In re Glinz, 36 B.R. 17, 18 (Bankr.D.N.D.1983); 2 Collier on Bankruptcy ¶ 327.02 (15th ed. 1988). As stated in 2 Collier on Bankruptcy 11 327.02 at p. 327-7: When there is no compliance with the Code or rules, a professional may forfeit his right to compensation. The services for which compensation is requested should have been performed pursuant to appropriate authority under the Code and in accordance with an order of the court_ The purpose of the rule requiring prior court authorization of employment is to provide the court with a means of control over administrative expenses (footnotes omitted). Second, Paine Webber objected to the Gill Law Firm’s fee request on the basis that the compensation is not reasonable or necessary as required under 11 U.S.C. § 330(a)(1). A fee application should be specific enough to identify the legal services rendered so that, the Court can determine the difficulty of the case and what results were achieved for the estate. In re Holthoff, 55 B.R. 36, 42 (Bankr.E.D. Ark.1985); Bankruptcy Rule 2016. Counsel should not group all tasks performed in one day into a single billing; otherwise the court is unable to determine whether or not the time spent on a specific task was reasonable. See Brake v. Tavormina (In re Beverly Mfg. Corp.), 841 F.2d 365, 370 (11th Cir.1988); In re Pettibone Corp., 74 B.R. at 302-03; In re Wabash Valley Power Ass’n, Inc., 69 B.R. 471, 479 (Bankr.S.D. Ind.1987); In re WHET, Inc.," }, { "docid": "23584408", "title": "", "text": "independent judicial responsibility to evaluate professionals’ fees. In re First Software Corp., 79 B.R. 108 (Bankr.D.Mass.1987). “The court ... is itself an expert on the question (of attorney’s fees) and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of testimony of witnesses as to value.” In re WHET, Inc., 61 B.R. 709, 713 (Bankr.D.Mass.1986). TRAVEL TIME Some courts hold that travel time cannot be billed, although special exceptions may be made. E.g., In re Grimes, 115 B.R. 639 (Bankr.D.S.D.1990); In re Carter, 101 B.R. 170 (Bankr.D.S.D.1989); Jungkurth v. Eastern Financial Services, Inc., 87 B.R. 333, 337 (E.D.Pa.1988); In re S.T.N Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987); In re Seneca Oil Co., 65 B.R. 902, 909 (Bankr.W.D.Okla.1986); In re Pacific Express, Inc., 56 B.R. 859 (Bankr.E.D.Cal.1985); In re Four Star Terminals, Inc., 42 B.R. 419 (Bankr.D.Alaska 1984). Others allow for one half the attorney’s hourly rate. In re Environmental Waste Control, 122 B.R. 341 (Bankr.N.D.Ind.1990); In re Ginji Corp., 117 B.R. 983 (Bankr.D.Nev.1990); In re Hogg, 103 B.R. 207 (Bankr.D.S.D.1988); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988); In re Taylor, 66 B.R. 390, 397 (Bankr.W.D.Pa.1986). Still others consider 75% of the attorney’s hourly rate appropriate. In re C & J Oil Co., 81 B.R. 398, 404 (Bankr.W.D.Va. 1987). In re Frontier Airlines, Inc., 74 B.R. 973, 977 (Bankr.D.Colo.1987) held that travel time was compensable because it was reasonable and necessary. Accord In re Cano, 122 B.R. 812 (Bankr.N.D.Ga.1991). Approved, In re Microwave Products of America Inc., 102 B.R. 661 (Bankr.W.D.Tenn.1989). The Court feels that “travel time” is a generic within which different species may be differently treated. Commuting time, between an attorney’s residence and primary place of business — the attorney’s usual office — is charged to the business of life and not to the matters handled upon arrival. Travel from office to court may be just a few moments down the hill from Boston’s financial district, or almost 1,800 air miles from Houston, as is the case in one application before the" } ]

[ { "docid": "3541152", "title": "", "text": "claimants in this case occurred, Congress clearly intended the Act to apply to “any cause of action arising before, on, or after the date of enactment.” Pub.L. No. 104-132, § 221(c), 110 Stat. 1214 (codified at 28 U.S.C. § 1605 note). Retroactivity principles therefore are no bar to the application of the state sponsored terrorism exception to this action. See Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62, 68-69 (D.D.C.1998); Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 13-14 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1239, 1247 n. 4 (S.D.Fla.1997). Several suits have been brought under the state sponsored terrorism exception to the FSIA since it has been enacted and codified at 28 U.S.C. § 1605(a)(7). See Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000) (suit arising out of hostage taking in Lebanon); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998) (suit arising out of hostage taking in Lebanon); Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C.1998) (suit arising out of bombing in Israel which killed American student); Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997) (suit arising out of downing of civilian planes by Cuban Air Force); Rein v. Socialist People’s Libyan Arab Jamahiriya, 995 F.Supp. 325 (E.D.N.Y.), aff''d in relevant part, 162 F.3d 748 (2d Cir.1998), cert. denied, 525 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 235 (1999) (suit by survivors of victims of bombing of Pan Am flight 103 over Lock-erbie, Scotland). Section 1605(a)(7) provides an exception to a foreign sovereign’s immunity from suit for actions where money damages are sought against a foreign sovereign for: personal injury or death that was caused by an act of torture, extrajudicial lolling, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such an act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. 28 U.S.C. § 1605(a)(7). Three conditions must" } ]

[ { "docid": "228436", "title": "", "text": "Regier was “tortured” and “taken hostage” as defined above, as Frank was kidnapped and imprisoned for 65 days under deplorable and inhumane conditions. Moreover, the evidence, in particular the testimony of Ambassador Robert Oakley and Dr. Patrick Clawson, leaves no doubt that agents of the Islamic Republic of Iran and MOIS were responsible for the abduction and confinement. It is worth noting in this regard that the Islamic Republic of Iran and MOIS have been found responsible for acts of torture and hostage-taking in a number of cases very similar to this one. See, e.g., Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 234 (D.D.C. 2002); Surette v. Islamic Republic of Iran, 231 F.Supp.2d 260, 267 (D.D.C.2002); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27, 33 (D.D.C.2001); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27, 44 (D.D.C.2001); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107, 113-114 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62, 68 (D.D.C.1998). II. Cause of Action A. Flatow Amendment Having determined that defendants are not immune from suit, the Court must proceed to consider the substantive causes of action asserted. A principal question in this regard is whether Congress has provided a substantive cause of action against a state sponsor of terrorism. The Court of Appeals recently “ñag[ged]” this issue but declined to decide it. See Price, 294 F.3d at 86-87; see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 n. 3 (D.C.Cir.2003); Bettis v. Islamic Republic of Iran, 315 F.3d 325, 330 (D.C.Cir.2003). By way of background, Section 1605(a)(7) of the FSIA initially was enacted as part of the comprehensive 1996 anti-terrorism legislation and was designed to remove sovereign immunity as a defense in cases against certain designated state sponsors of terrorism. The Flatow Amendment, Pub.L. 104-208, div. A, title I, § 101(c) [title V, § 589], Sept. 30, 1996, 110 Stat. 3009-172, codified in 28 U.S.C. § 1605 note, adopted five months after § 1605(a)(7), provides a federal statutory cause of action for such cases. However, whereas § 1605(a)(7) waives the sovereign immunity of foreign" }, { "docid": "21844624", "title": "", "text": "to make further inquiry prior to entering a judgment by default, against Defendants. The FSIA requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to-relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e); see also Flatow v. The Islamic Republic of Iran, et al., 999 F.Supp. 1, 6 (1998). This Court has engaged in a careful review of the evidence presented in this case, in light of Flatow, 999 F.Supp. 1, and the other reported cases under the antiter-rorism provisions of the FSIA. See, e.g., Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C.2002); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1 (D.D.C.2000); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.2000); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997). Based upon the extensive evidence presented, the Court concludes that the plaintiffs have established their claim and right to relief as set forth below. II. FINDINGS OF FACTS The Court received testimony and evidence on the matter of defendants’ liability and plaintiffs’ damages on January 3, 2003. The following findings of fact are based upon the sworn testimony of the plaintiffs’ expert witnesses, Dr. Reuven Paz, Dr. Patrick Clawson, Mr. Ronni Shaked and Dr. Alan Friedman, the testimony of the plaintiffs themselves, and the voluminous exhibits entered into evidence. Plaintiffs have “established [their] claim or right to relief by evidence that is satisfactory to the Court,” as required by 28 U.S.C. § 1608(e). The Court finds the following facts to be established by “clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding.” Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13,16 (D.D.C.2002). (1) Leah Stern was born on June 23,-1928, and was a citizen of the United States at all relevant times," }, { "docid": "1020896", "title": "", "text": "of torture if carried out in the United States. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Elahi, 124 F.Supp.2d at 108 n. 14. All of the requirements contained in § 1605(a)(7) are satisfied in this case and the Court, therefore, has subject matter jurisdiction. Because the Court has subject matter jurisdiction, the service of process achieved here pursuant to § 1608 of the FSIA provides personal jurisdiction over the defendants in this case. 28 U.S.C. § 1330(b); Daliberti v. Republic of Iraq, 97 F.Supp.2d at 53. II. LIABILITY Section 1605(a)(7), as amended, creates a federal cause of action against officials, employees and agents of a foreign state, as well as the state and its agencies and instrumentaHties themselves. See Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 230-31 (D.D.C.2002); Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 24 (D.D.C.2002); Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1, 7 (D.D.C.2000); Daliberti, 97 F.Supp.2d at 43; Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107, 113 (D.D.C.2000). Suits brought under § 1605(a)(7) may be based on conventional common law torts such as assault, battery, and intentional infliction of emotional distress. See, e.g., Stethem v. Islamic Republic of Iran, 201 F.Supp.2d 78, 87 (D.D.C.2002); Hill v. Republic of Iraq, 175 F.Supp.2d 36, 45-46 (D.D.C.2001); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27, 33-37 (D.D.C.2001), aff'd, 315 F.3d 325 (D.C.Cir.2003); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27, 47-50 (D.D.C.2001); Anderson, 90 F.Supp.2d at 113. The torture of the plaintiff POWs, and the resulting personal injury to them and their family members, constitute the traditional torts of assault, battery and intentional infliction of emotional distress. “An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” See Restatement (Second) of Torts § 21(1). The" }, { "docid": "21844623", "title": "", "text": "of material support or resources ... for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency ... ”. 28 U.S.C. § 1605(a)(7). The FSIA further provides that “an official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... shall be liable to a United States national or the national’s legal representatives for personal injury or death caused by acts ... for which the courts of the United States may maintain jurisdiction ... 28 U.S.C. § 1605 note, Civil Liability for Acts of State Sponsored Terrorism. The Defendants, despite being properly served with process pursuant to 28 U.S.C. 1608, have failed to answer or enter an appearance in this matter, and Defendants’ default was entered by the Court on February 13, 2002, pursuant to 28 U.S.C. § 1608(e) and Fed.R.Civ.P. 55(a). Notwithstanding indicia of Defendants’ willful default, however, this Court is compelled to make further inquiry prior to entering a judgment by default, against Defendants. The FSIA requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to-relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e); see also Flatow v. The Islamic Republic of Iran, et al., 999 F.Supp. 1, 6 (1998). This Court has engaged in a careful review of the evidence presented in this case, in light of Flatow, 999 F.Supp. 1, and the other reported cases under the antiter-rorism provisions of the FSIA. See, e.g., Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C.2002); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1 (D.D.C.2000); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.2000); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Alejandre v. Republic of Cuba, 996" }, { "docid": "5711715", "title": "", "text": "Mousa v. Islamic Republic of Iran, Civil Action Number 00-2096(WBB), this Court held the same defendants in the present case jointly and severally liable for the deaths of two other American citizens, Matthew Eisenfeld and Sara Rachel Duker, and for the injuries sustained by Leah Mousa. All three individuals, like Ira Weinstein, were aboard the Number 18 Egged bus when it was bombed on February 25,1996. The defendants, despite being properly served with process pursuant to 28 U.S.C. § 1608, have failed to enter an appearance in this matter. As a result, the Court entered default against the defendants on July 16, 2001, pursuant to 28 U.S.C. § 1608(e) and Federal Rule of Civil Procedure 55(a). Notwithstanding indicia of the defendants’ willful default, however, the Court is compelled to make further inquiry prior to entering a judgment by default against them. As with actions against the federal government, the FSIA requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to relief that is satisfactory to the Court.” 28 U.S.C. § 1608(e). Accordingly, the Court has engaged in a careful review of the evidence presented in this case, in light of Eisenfeld, Mousa, and the other reported cases brought under the antiterrorism provisions of the FSIA. Wagner v. Islamic Republic of Iran, 172 F.Supp.2d 128 (D.D.C.2001); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Daliberti v. Republic of Iraq, 146 F.Supp.2d 19 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C.2000); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1289 (S.D.Fla.1997). Based upon the extensive evidence presented by the plaintiffs, the Court concludes that they have established their claim and right to relief as set forth below. I. FINDINGS OF FACT The Court heard testimony in this matter on December 6 and 7, 2001. The plaintiffs proceeded" }, { "docid": "17963149", "title": "", "text": "Under Rule 60(b) of the Federal Rules of Civil Procedure, a court may relieve a party from a “final judgment, order or proceeding” for a variety of reasons, including error or mistake by the Court, because the “judgment is void,” or “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(a) and (b)(4), (6). The United States has intervened in this case as a defendant and has moved to vacate this Court’s August 17, 2001 judgment on liability on several grounds. This Court vacates that judgment both because it was entered in contravention of the requirements of the FSIA, and because the Court lacked jurisdiction over plaintiffs claims at the time judgment was entered. A. This Court’s Default Judgment on Liability is Vacated on Statutory Grounds. Notwithstanding this Court’s entry of a default on August 17, 2001, the FSIA mandates that a default judgment for a specific monetary amount may not be entered against a foreign state until plaintiffs have “establish[ed] [their] claim or right to relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e). Thus, in order for a court to enter judgment against a foreign state, plaintiffs must put forth satisfactory evidence to support each element of their claim. E.g., Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 n. 3 (D.D.C.2000). Hence, in previous cases brought against Iran under the cause of action created by the Flatow Amendment this Court has consistently held non-jury trials to hear testimony on the issue of liability as well as damages prior to the entry of judgment. See Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998). As of August 17, 2001, the Court had not yet received any evidence and testimony to support the elements of each of plaintiffs’ claims. That evidence was not heard until the bench trial on October 15 and 16, 2001. Therefore, the Court’s entry of default" }, { "docid": "5414674", "title": "", "text": "terrorism. See Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.2000); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C.2000); Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1 (D.D.C.2000); Anderson v. The Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. The Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997). I. Findings of Fact The Court heard testimony on September 4 and 5, 2001. Plaintiff proceeded in a bench trial, and the following findings of fact are based on the sworn testimony and documents entered into evidence in accordance with the Federal Rules of Evidence. Plaintiff has “established [her] claim or right of relief by evidence that is satisfactory to the Court,” as required by 28 U.S.C. § 1608(e). The Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding: (1) Plaintiff Leah S. Mousa is an American citizen who was born and raised in New York; she currently lives in Israel with her husband. (2) On February 25, 1996, Ms. Mousa boarded the Number 18 Egged bus in Jerusalem, Israel, and was on that bus when it was bombed by a terrorist. (3) At or about 6:45 a.m., as the bus came to a stop on Jaffa Street at its intersection with Sarae Yisrael Street, Magid Warda, a passenger on the bus, detonated explosives which, at the direction of HA-MAS, he had carried onto the bus concealed in a travel bag, resulting in a complete destruction of the bus, the deaths of 25 people and severe injuries to 11 others, including the plaintiff. Shrapnel and debris were scattered for more than 100 yards. (4) HAMAS immediately claimed credit for bombing the bus, a claim that was verified in confessions and other statements to Israeli police by Hassan Salameh, the HAMAS member who planned and organized the attack. Mr. Salameh" }, { "docid": "4105742", "title": "", "text": "deciding such a motion, the court must accept all of the complaint’s well-pled factual allegations as true and draw all reasonable inferences in the nonmovant’s favor. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. The court need not accept as true legal conclusions cast as factual allegations. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). 2. Cause of Action Based on Common Law A plaintiff bringing suit under section 1605(a)(7) may base his claim on conventional common-law torts such as assault, battery, and intentional infliction of emotional distress. Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286, 296-97 n. 6 (D.D.C.2003) (Lamberth, J.); Acree v. Republic of Iraq, 271 F.Supp.2d 179, 215 (D.D.C.2003) (Roberts, J.); see also Stethem, 201 F.Supp.2d at 87; Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27, 33-37 (D.D.C.2001) (Lamberth, J.), aff'd, Bettis v. Islamic Republic of Iran, 315 F.3d 325 (D.C.Cir.2003); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27, 47-50 (D.D.C.2001) (Lamberth, J.); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107, 113 (D.D.C.2000) (Jackson, J.); Cicippio v. Islamic Republic of Iran 18 F.Supp.2d 62 (D.D.C.1998) (Jackson, J.). Neither section 1605(a)(7) nor the Flatow Amendment undermines the viability of existing federal and state common-law claims once sovereign immunity is waived. See 28 U.S.C. § 1605(a)(7) & note. The Flatow Amendment created a new statutory cause of action for certain victims of international terrorism, but did not overrule the old common law claims. See 28 U.S.C. § 1605 note. Indeed, none of the cases dealing with the Flatow Amendment or its corresponding legislative history suggest that Congress intended the Flatow Amendment to provide the exclusive cause of action for acts of state-sponsored terrorism. See, e.g., Price v. Socialist People’s Libyan Arab Jamahiriya, 274 F.Supp.2d 20 (D.D.C.2003) (Lamberth, J.) (“Price III”); Cronin, 238 F.Supp.2d 222; Flatow, 999 F.Supp. 1. The plaintiffs common-law claims must therefore co-exist alongside the federal statutory cause of action granted under the Flatow Amendment. The D.C. Circuit recently cautioned district courts about the use of “federal common law” in FSIA cases. Bettis, 315 F.3d 325, 333 (D.C.Cir.2003). Because the FSIA" }, { "docid": "10083017", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW LAMBERTH, District Judge. These actions arise from the August 9, 2001 suicide bombing of a restaurant in downtown Jerusalem, Israel. Plaintiffs, the husband, parents and estate of a woman killed in the attack, allege that the Islamic Republic of Iran (“Iran”) and the Iranian Ministry of Information and Security (“MOIS”) are liable for damages resulting from the attack because they provided material support and assistance to Hamas, the terrorist organization that orchestrated the bombing. As such, defendants are subject to suit under the terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1604. PROCEDURAL HISTORY On October 23, 2002, plaintiffs filed their original complaint seeking redress for their losses under the FSIA. On August 21, 2003, this Court ordered service upon the defendants through diplomatic channels in accordance with 28 U.S.C. § 1608(a)(4). Plaintiffs filed proof of service in accordance with the statutory procedures and sought entry of default on January 5, 2005, the defendants having failed to answer. On June 3, 2005 this Court entered default against the defendants, Iran and MOIS, on November 16, 2005, pursuant to 28 U.S.C. § 1608(e) and Fed.R.Civ.P. 55(a). Notwithstanding the indicia of defendants’ willful default, this Court is compelled to make further inquiry prior to entering a judgment by default against defendants. In addition, FSIA requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e); see also Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 6 (D.D.C.1998) (Lamberth, J.). “In evaluating the plaintiffs’ proof, the court may accept as true the plaintiffs’ uncontroverted evidence.” Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003) (Urbina, J.) (quoting Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000) (Green, J.)) (internal quotations omitted). Plaintiffs’ evidence may also take the form of sworn affidavits or prior transcripts. See Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002) (Lamberth, J.). During the pendency of this action," }, { "docid": "5414700", "title": "", "text": "v. Republic of Iraq, 146 F.Supp.2d 19, 24 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C.2000) (opinion, at 18). The FSIA has been construed to apply to individuals for acts performed in their official capacity on behalf of either a foreign state or its agency or instrumentality. 28 U.S.C. § 1605(a)(7) (the “Flatow Amendment”); 28 U.S.C. § 1605 note; Elahi, 124 F.Supp.2d 97 (opinion, at 19); Flatow, 999 F.Supp. at 12-13. Specifically, Congress amended the FSIA to create an exception to the immunity of those foreign states officially designated as state sponsors of terrorism by the Department of State, if the foreign state so designated commits a terrorist act, or provides material support and resources to an individual or entity which commits such a terrorist act, which results in the death or personal injury of a United States citizen. See 28 U.S.C. § 1605(a)(7); Eisenfeld n Islamic Republic of Iran, 172 F.Supp.2d 1, 8 (D.D.C.2000). Based on the foregoing authority and findings, the Court concludes that it has jurisdiction over the subject matter of this action. B. Personal Jurisdiction This Court has in personam jurisdiction over foreign state sponsors of terrorism under 28 U.S.C. § 1605(a)(7). As was noted in Flatow, the FSIA provides that personal jurisdiction over defendants will exist where a plaintiff establishes the applicability of an exception to immunity pursuant to 28 U.S.C. §§ 1604, 1605, or 1607, and service of process has been accomplished pursuant to 28 U.S.C. § 1608. See Flatow, 999 F.Supp. at 19; Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d at 8. Plaintiff has here demonstrated by clear and convincing evidence that § 1605(a)(7) of the FSIA applies in this action, and service of process was accomplished with the assistance of Swiss Embassy in Tehran. A court must also determine whether the notice provided by service under § 1608 passes constitutional muster. Flatow, 999 F.Supp. at 19; Cicippio, 18 F.Supp.2d at 67 n. 4. Based on a careful review of the pleadings of record in this action, including the complaint, summons, notice of suit, and the certified translations, the" }, { "docid": "5414699", "title": "", "text": "II. CONCLUSIONS OF LAW A. The Foreign Sovereign Immunities Act Controls This Action. As this Court noted in Flatow, an action brought against a foreign state, its intelligence service acting as its agent, and three of its officials, acting in their official capacities, must be brought under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602-1611. Flatow, 999 F.Supp. at 10; see also Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27, 36 (D.D.C.2001). Indeed, the FSIA must be applied in every action involving a foreign state defendant. 28 U.S.C. § 1330; Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). That is, the sole basis for subject matter jurisdiction in an action against a foreign state defendant are the FSIA’s enumerated exceptions to immunity. Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 24 (D.D.C.2001). Accordingly, this Court lacks jurisdiction over this matter unless it falls within one of the FSIA’s enumerated exceptions to foreign sovereign immunity. 28 U.S.C. § 1330(a). See also Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 24 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C.2000) (opinion, at 18). The FSIA has been construed to apply to individuals for acts performed in their official capacity on behalf of either a foreign state or its agency or instrumentality. 28 U.S.C. § 1605(a)(7) (the “Flatow Amendment”); 28 U.S.C. § 1605 note; Elahi, 124 F.Supp.2d 97 (opinion, at 19); Flatow, 999 F.Supp. at 12-13. Specifically, Congress amended the FSIA to create an exception to the immunity of those foreign states officially designated as state sponsors of terrorism by the Department of State, if the foreign state so designated commits a terrorist act, or provides material support and resources to an individual or entity which commits such a terrorist act, which results in the death or personal injury of a United States citizen. See 28 U.S.C. § 1605(a)(7); Eisenfeld n Islamic Republic of Iran, 172 F.Supp.2d 1, 8 (D.D.C.2000). Based on the foregoing authority and findings, the Court concludes that it has jurisdiction over the subject" }, { "docid": "17736733", "title": "", "text": "F.Supp. 1, 29-33 (D.D.C.1998); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000). In Cicippio II, Iran did not appear to contest the claims, and in November 1997, Judge Jackson entered a default and agreed to schedule individual trials for each of the Cicippio II plaintiffs. Prior to Jacobsen’s trial, the Honorable Royce C. Lamberth issued his ruling in Flatow v. Islamic Republic of Iran, in which he held that the Flatow Amendment allowed for punitive damages to be collected directly from a foreign state and awarded solatium damages to family members of Alisa M. Flatow. Disagreeing with Flatow, Judge Jackson ruled that the FSIA precluded an award of punitive damages against a foreign state, but he offered the Cicippio plaintiffs an opportunity to delay the trial so as to amend their complaint to name agents or instrumentalities. The Cicippio plaintiffs declined to amend their complaint, but instead, they withdrew their claim for punitive damages against Iran. (Def.’s Mem. at 7-8.) On August 27, 1998, the Court awarded Jacobsen compensatory damages .in the amount of $9,000,000 against Iran. After trial, efforts were directed at trying to collect on the judgments. On October 28, 2000, the Victims of Trafficking and Violence Protection Act of 2000 became law. See Pub.L.No. 106-386, 114 Stat. 1541 (2000). It established procedures for collecting on judgments against terrorist states by allowing a victim of terrorism, who held, as of July 20, 2000, a final judgment against a terrorist state to receive compensation directly from the United States government. Section 2002(a)(1)(A) of the Act permitted a victim of terrorism to collect “110 percent of compensatory damages” provided he or she “relinquish all rights and claims to punitive damages,” and section 2002(a)(1)(B) allowed compensation of “100 percent of compensatory damages,” but permitted a victim to continue to pursue the recovery of punitive damages that had been awarded. See Flatow v. Islamic Republic of Iran, 201 F.R.D. 5, 10-11 (D.D.C.2001). It is against this backdrop that Jacobsen and" }, { "docid": "17963150", "title": "", "text": "to the Court.” 28 U.S.C. § 1608(e). Thus, in order for a court to enter judgment against a foreign state, plaintiffs must put forth satisfactory evidence to support each element of their claim. E.g., Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 n. 3 (D.D.C.2000). Hence, in previous cases brought against Iran under the cause of action created by the Flatow Amendment this Court has consistently held non-jury trials to hear testimony on the issue of liability as well as damages prior to the entry of judgment. See Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998). As of August 17, 2001, the Court had not yet received any evidence and testimony to support the elements of each of plaintiffs’ claims. That evidence was not heard until the bench trial on October 15 and 16, 2001. Therefore, the Court’s entry of default on liability on August 17, 2001 violated the express provisions of the FSIA. That default order is therefore invalid and is hereby vacated. B. The Default Judgment on Liability Should Also be Vacated Because this Court Lacked Jurisdiction to Hear this Claim at the Time the Judgment Was Entered. The default judgment entered on August 17, 2001 should also be vacated because at the time that judgment was entered on liability for the plaintiffs, this Court lacked jurisdiction to hear plaintiffs’ claims. 1. Prior to the enactment of subsection 626(c), this Court lacked subject matter jurisdiction to hear plaintiffs’ claims. A judgment is void for purposes of Rule 60(b)(4) if the court that rendered it lacked subject matter jurisdiction over the plaintiffs claim, and as such must be vacated by the court. See, e.g., Robinson Eng’g Co. Pension Plan and Trust v. George, 223 F.3d 445, 448 (7th Cir.2000); United States v. Forma, 42 F.3d 759, 762 (2d Cir.1994); Von Dardel v. U.S.S.R., 736 F.Supp. 1, 8 (D.D.C.1990) (court has “no alternative” but to vacate" }, { "docid": "17963189", "title": "", "text": "activity within United States borders, the statute waives immunity for lawsuits arising out of “the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” § 1605(a)(5) (emphasis added). The implications of the plain text of this statute are not altered by the recent addition of Subsection 626(c) or Section 208. Plaintiffs argue that the FSIA as it has been amended by all these statutes, unambiguously creates a cause of action against the state of Iran. The Court can not find plaintiffs’ alleged unambiguous mandate anywhere in the text of these statutes. Subsection 626(c) did not amend the portion of the FSIA created by the Flatow Amendment; it amended only the jurisdictional provision added by the 1996 Anti-terrorism Act. Nothing about Subsection 626(c) independently creates a cause of action against foreign governments. Nothing about Subsection 626(c) alters the language of the Flatow Amendment that provides for a cause of action against “official, employee, or agent of a foreign state.” § 1605 note. Furthermore, as explained above, Section 208 adds only a technical amendment to correct this Judge’s initials in the case number referred to in Subsection 626(c), and creates no substantive law. Plaintiffs make several unpersuasive arguments to support their claim that together these statutes unambiguously create a cause of action against Iran. First, plaintiffs rely heavily on several judgments issued by this Court against foreign governments for violations of the statute at issue here. See Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C.2002); Simpson v. Socialist People’s Libyan Arab Jamahiriya, 180 F.Supp.2d 78 (D.D.C.2001); Wagner v. Islamic Republic of Iran, 172 F.Supp.2d 128 (D.D.C.2001); Daliberti v. Republic of Iraq, 146 F.Supp.2d 19 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C.2000); Price v. Socialist People’s Libyan Arab Jamahiriya, 110 F.Supp.2d 10 (D.D.C.2000); Daliberti v. Islamic Republic of Iran, 97 F.Supp.2d 38 (D.D.C. 2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C.1998). However, even if this" }, { "docid": "10083018", "title": "", "text": "entered default against the defendants, Iran and MOIS, on November 16, 2005, pursuant to 28 U.S.C. § 1608(e) and Fed.R.Civ.P. 55(a). Notwithstanding the indicia of defendants’ willful default, this Court is compelled to make further inquiry prior to entering a judgment by default against defendants. In addition, FSIA requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e); see also Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 6 (D.D.C.1998) (Lamberth, J.). “In evaluating the plaintiffs’ proof, the court may accept as true the plaintiffs’ uncontroverted evidence.” Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003) (Urbina, J.) (quoting Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 100 (D.D.C.2000) (Green, J.)) (internal quotations omitted). Plaintiffs’ evidence may also take the form of sworn affidavits or prior transcripts. See Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 19 (D.D.C.2002) (Lamberth, J.). During the pendency of this action, the United States Court of Appeals for the District of Columbia and other judges of the District Court for the District of Columbia have issued a number of decisions which have implications as to the plaintiffs’ claims and damages, including, but not limited to, whether statutory causes of action exist under FSIA. See Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C.Cir.2004); Acree v. Republic of Iraq, 370 F.3d 41, 59-60 (D.C.Cir.2004). See also Dammarell v. Islamic Republic of Iran, 2005 WL 756090 (D.D.C.2005) (Bates, J.) (“Dammarell II ”); Holland v. Islamic Republic of Iran, 2005 U.S. Dist. LEXIS 40254, Civ. A. No. 01-1924(CKK) (D.D.C.2005) (Kotelly, J.); Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105 (D.D.C.2005) (Bates, J.); Kilburn v. Republic of Iran, 277 F.Supp.2d 24 (D.D.C.2003) (Urbina, J.). In light of these recent changes in law, the Court directed plaintiffs to brief the effect of intervening case law, and they filed a memorandum to that effect on January 11, 2006. Plaintiffs subsequently submitted, on June 11, 2006, their Proposed Findings of" }, { "docid": "5414673", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW BRYANT, District Judge. This action arises from an act of state-sponsored terrorism by a foreign state officially designated by the U.S. Department of State to be a state sponsor of terrorism. Defendants have not entered an appearance in this matter. This Court entered default on December 26, 2000, pursuant to 28 U.S.C. § 1608(d) and Fed.R.Civ.P. § 55(a). As with actions against the federal government, the Foreign Sovereign Immunities Act (FSIA) requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e); see also Flatow v. Islamic Republic of Iran, et al., 999 F.Supp. 1, 6 (D.D.C.1998). Plaintiff has brought this action pursuant to the FSIA, which establishes federal court jurisdiction over foreign states and their officials, agents and employees in certain enumerated instances. In particular, the FSIA creates a federal cause of action for personal injury or wrongful death resulting from acts of state-sponsored terrorism. See Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.2000); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C.2000); Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1 (D.D.C.2000); Anderson v. The Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. The Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997). I. Findings of Fact The Court heard testimony on September 4 and 5, 2001. Plaintiff proceeded in a bench trial, and the following findings of fact are based on the sworn testimony and documents entered into evidence in accordance with the Federal Rules of Evidence. Plaintiff has “established [her] claim or right of relief by evidence that is satisfactory to the Court,” as required by 28 U.S.C. § 1608(e). The Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie" }, { "docid": "5711716", "title": "", "text": "to the Court.” 28 U.S.C. § 1608(e). Accordingly, the Court has engaged in a careful review of the evidence presented in this case, in light of Eisenfeld, Mousa, and the other reported cases brought under the antiterrorism provisions of the FSIA. Wagner v. Islamic Republic of Iran, 172 F.Supp.2d 128 (D.D.C.2001); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Daliberti v. Republic of Iraq, 146 F.Supp.2d 19 (D.D.C.2001); Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97 (D.D.C.2000); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1289 (S.D.Fla.1997). Based upon the extensive evidence presented by the plaintiffs, the Court concludes that they have established their claim and right to relief as set forth below. I. FINDINGS OF FACT The Court heard testimony in this matter on December 6 and 7, 2001. The plaintiffs proceeded in the manner of a bench trial and the following findings of fact are based upon the sworn testimony and documents entered into evidence in accordance with the Federal Rules of Evidence. Plaintiffs have “established [their] claim or right to relief by evidence that is satisfactory to the Court,” as required by 28 U.S.C. § 1608(e). The Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding. (1) Ira William Weinstein was born on December 4, 1942, in the United States of America. He was a United States citizen from the time of his birth until his death on April 13,1996. (2) Plaintiff Susan Weinstein is the widow of decedent Ira Weinstein. She is, and at all relevant times was, a citizen of the United States. She brings this action in her own right, as Co-Administrator of the Estate of Ira Weinstein, and as the natural guardian of plaintiff David Weinstein. (3) Plaintiff Jeffrey A. Miller, who" }, { "docid": "14819697", "title": "", "text": "or wrongful death resulting from acts of state-sponsored terrorism. This Court has engaged in a careful review of the evidence presented in this case, in light of Flatow, 999 F.Supp. 1, and the other reported cases under the antiterrorism provisions of the FSIA. See, e.g., Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.2000); Anderson v. The Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. The Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997). Based upon the extensive evidence presented, the Court concludes that the Plaintiffs have established their claim and right to relief as set forth below. I. FINDINGS OF FACT The Court heard testimony on May 1-2, 2000 and May 22, 2000. The Plaintiffs proceeded in the manner of a bench trial and the following findings of fact are based upon the sworn testimony and documents entered into evidence in accordance with the Federal Rules of Evidence. Plaintiffs have “established [their] claim or right to relief by evidence that is satisfactory to the Court,” as required by 28 U.S.C. § 1608(e). This Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding: (1) Plaintiff Dr. Leonard I. Eisenfeld, a resident of and domiciliary of the State of Connecticut, is the father of decedent Matthew Eisenfeld. He brings this action in his own right, as Administrator of the Estate of Matthew Eisenfeld, and on behalf of decedent’s heirs-at-law, Vicki Eisenfeld, decedent’s mother, Amy Eisenfeld, decedent’s sister, and the Plaintiff, and on behalf of the Estate of Matthew Eisenfeld. (2) Matthew Eisenfeld was born on February 5, 1971, in the United States of America, and was at birth and remained until his death, a citizen of the United States. (3) Arline Duker, a resident and domiciliary of the State of New Jersey, is the mother of the decedent, Sara Rachel Duker. She brings this action in her own right, as Administrator of the Estate of Sara Rachel Duker, and on behalf" }, { "docid": "14819696", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW LAMBERTH, District Judge. This wrongful death action arises from an act of state-sponsored terrorism. Defendants have not entered an appearance in this matter. This Court entered Defendants’ default on November 11, 1999, pursuant to 28 U.S.C. § 1608(e) and Fed. R.Civ.P. 55(a). Notwithstanding indicia of Defendants’ willful default, however, this Court is compelled to make further inquiry prior to entering a judgment by default against Defendants. As with actions against the federal government, the Foreign Sovereign Immunities Act (“FSIA”) requires that a default judgment against a foreign state be entered only after a plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the Court.” 28 U.S.C. § 1608(e); see also Flatow v. The Islamic Republic of Iran, et al., 999 F.Supp. 1, 6 (1998). Plaintiffs bring this, action pursuant to the FSIA, which establishes federal court jurisdiction over foreign states and their officials, agents and employees in certain enumerated instances. In particular, the FSIA creates a federal cause of action for personal injury or wrongful death resulting from acts of state-sponsored terrorism. This Court has engaged in a careful review of the evidence presented in this case, in light of Flatow, 999 F.Supp. 1, and the other reported cases under the antiterrorism provisions of the FSIA. See, e.g., Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.2000); Anderson v. The Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000); Cicippio v. The Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C.1998); Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D.Fla.1997). Based upon the extensive evidence presented, the Court concludes that the Plaintiffs have established their claim and right to relief as set forth below. I. FINDINGS OF FACT The Court heard testimony on May 1-2, 2000 and May 22, 2000. The Plaintiffs proceeded in the manner of a bench trial and the following findings of fact are based upon the sworn testimony and documents entered into evidence in accordance with the Federal Rules of Evidence. Plaintiffs have “established [their] claim or right to relief by evidence that is satisfactory to" }, { "docid": "17736732", "title": "", "text": "be hable to a United States national or the national’s legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code [subsec. (a)(7) of this section] for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in section 1605(a)(7) [subsec. (a)(7) of this section]. The Flatow Amendment expressly provided victims of terrorism with a statutory basis for pursuing legal actions directly against agents and instrumentalities of Iran. In addition, the Flatow Amendment provided a statutory basis for recovery of “solatium” damages (ie., compensation for “hurt feelings or grief,” including mental anguish, bereavement, and grief. BLACK’S LAW DICTIONARY 1397 (7th ed.1999)). Subsequent to passage of the Flatow Amendment, courts have allowed spouses and relatives in direct lineal relationship to victims of terror to pursue legal actions to recover solatium damages. See, e.g., Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 29-33 (D.D.C.1998); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001); Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001); Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C.2000). In Cicippio II, Iran did not appear to contest the claims, and in November 1997, Judge Jackson entered a default and agreed to schedule individual trials for each of the Cicippio II plaintiffs. Prior to Jacobsen’s trial, the Honorable Royce C. Lamberth issued his ruling in Flatow v. Islamic Republic of Iran, in which he held that the Flatow Amendment allowed for punitive damages to be collected directly from a foreign state and awarded solatium damages to family members of Alisa M. Flatow. Disagreeing with Flatow, Judge Jackson ruled that the FSIA precluded an award of punitive damages against a foreign state, but he offered the Cicippio plaintiffs an opportunity to delay the trial so as to amend their complaint to name agents or instrumentalities. The Cicippio plaintiffs declined to amend their complaint, but instead, they withdrew their claim for punitive" } ]

[ { "docid": "18578531", "title": "", "text": "products. “ ‘Each such chain relies upon the exclusivity of its own private label line to differentiate its private products from those of its competitors and to attract and retain the repeat business and loyalty of consumers.’” Id. at 604-05, 92 S.Ct. at 1132. Smaller chains had to have their own lines to compete with larger chains, which accounted for the Topeo program, and needed similar exclusivity for advertising and promotional purposes, which accounted for the market division with respect to the Topeo label. The Supreme Court said, however, “[w]e think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of § 1 [of the Sherman Act].” 405 U.S. at 608, 92 S.Ct. at 1134. The Topeo opinion also clarified United States v. Sealy Corp., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), which had appeared to hold illegal a very similar set of restraints among mattress manufacturers that wished to market a national brand because both price fixing and market division were involved. Sealy was now said to hold that horizontal territorial limitations by themselves were per se unlawful. See 405 U.S. at 609, 92 S.Ct. at 1134. If Topeo and Sealy, rather than Addyston Pipe & Steel, state the law of horizontal restraints, the restraints imposed by Atlas would appear to be a per se violation of the Sherman Act. An examination of more recent Supreme Court decisions, however, demonstrates that, to the extent that Topeo and Sealy stand for the proposition that all horizontal restraints are illegal per se, they must be regarded as effectively overruled. C. The Supreme Court reformed the law of horizontal restraints in Broadcast Music, Inc. v. Columbia Broadcasting System, 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979) (“BMI”), National Collegiate Athletic Association v. Board of Regents, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) (“NCAA”), and Northern Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., — U.S. -, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985) (“Pacific Stationery ”). In BMI, CBS brought suit to" } ]

[ { "docid": "8164596", "title": "", "text": "Inst., 851 F.2d 478, 486 (1st Cir.1988) (citing 7 P. Areeda & D. Turner Antitrust Law ¶ 1500, at 362-63 (1978)), cert. denied, 488 U.S. 1007 (1989). Hence, when we ask if a particular practice is “reasonable” or “unreasonable,” or if the practice is “anticompet-itive,” we use these terms with special antitrust meaning reflecting the “Act’s basic objectives, the protection of a competitive process that brings to consumers the benefits of lower prices, better products, and more efficient production methods.” Id. at 486. In this lexicon, a practice ultimately judged anticompetitive is one which harms competition, not a particular competitor. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 cert. denied, 429 U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977); Brown Shoe Co. v. United States, 370 U.S. 294, 319-20, 82 S.Ct. 1502, 1521-21, 8 L.Ed.2d 510 (1962). Of course, reasonability is of no consequence when certain practices, for example, price fixing, are entirely void of redeeming competitive rationales. These we deem per se illegal under section 1, no offsetting economic or efficiency justifications salvaging them. “This per se approach permits categorical judgments with respect to certain business practices that have proved to be predominantly anticompetitive.” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289, 105 S.Ct. 2613, 2617, 86 L.Ed.2d 202 (1985). The sharp line between per se and rule of reason analysis, however, especially blurs under section 1 when the actors change: In the case of a joint venture, present here in the Visa USA association, competitive incentives between independent firms are intentionally restrained and their functions and operations integrated to achieve efficiencies and increase output. See Joseph F. Brodley, Joint Ventures and Antitrust Policy, 95 Harv. L.Rev. 1523, 1524 (1982). Although virtually any collaborative activity among business firms may be called a joint venture, joint ventures differ from mergers and cartels by the extent to which they integrate the resources of their partners. A cartel constitutes a naked agreement among competitors unaccompanied by any integration of resources. In a joint venture, partners contribute" }, { "docid": "18664261", "title": "", "text": "are to increase production, streamline distribution, and otherwise spur competition. See Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918). It is commonplace that these desirable results are necessarily accompanied by restrictions on competition among the venturers. These restraints may be legitimately ancillary to the larger venture if, and only if, they are “limited to those [restrictions] inevitably arising out of dealings between partners, or necessary (and of no broader scope than necessary) to make the joint venture work.” In re Brunswick, 94 F.T.C. 1174, 1275 (1979), aff'd sub nom. Yamaha Motor Co. v. FTC, 657 F.2d 971 (8th Cir.1981), cert. denied sub nom. Brunswick Corp. v. FTC, 456 U.S. 915, 102 S.Ct. 1768, 72 L.Ed.2d 174 (1982). The CFA asserts that it, unlike the NCAA before it, is an authentic joint selling agency. CFA asserts that it is a truly voluntary organization that permits its constituent members to offer a new and distinct product, a right of first refusal to a specified number of games. CFA cannot discipline its members or otherwise enforce the group will at the expense of members. The restraints imposed serve the individual interests of the members and their only function is to permit the packaging and sale of an otherwise impossible national series of games. If true, these assertions would entitle CFA to further market analysis. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc. 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979); see also Copperweld Corp. v. Independence Tube Corp., — U.S. -, 105 S.Ct. 319, 83 L.Ed.2d 257 (1984) (“joint ventures ... hold the promise of increasing a firm’s efficiency and enabling it to compete more effectively [; s]uch combinations are judged under a rule of reason ... ”). 3. INTERBRAND COMPETITION CFA, ABC, and the Big Eight characterize the challenged arrangements as marketing agreements that impose limited and necessary intrabrand restraints in order to effect a more vigorous interbrand competition. It is clear that a marketing strategy which, by effecting intrabrand efficiencies, increases output and is thus pro-competitive is not ordinarily to" }, { "docid": "3298825", "title": "", "text": "rules controlling who may join a joint venture can be ancillary to a legitimate joint activity and that the NFL’s own policy against public ownership constitutes one example of such an ancillary rule. Finally, we accept the NFL’s claim that its public ownership policy contributes to the ability of the NFL to function as an effective sports league, and that the NFL’s functioning would be impaired if publicly owned teams were permitted, because the short-term dividend interests of a club’s shareholder would often conflict with the long-term interests of the league as a whole. That is, the policy avoids a detrimental conflict of interests between team shareholders and the league. We disagree, however, that these factors are sufficient to establish as a matter of law that the NFL’s ownership policy does not unreasonably restrain trade in violation of § 1 of the Sherman Act. The holdings in Broadcast Music, Rothery Storage, and Northwest Stationers, do not throw the “rule of reason” out the window merely because one establishes that a given practice among joint venture participants is ancillary to legitimate and efficient activity — the injury to competition must still be weighed against the purported benefits under the rule of reason. See, e.g., Broadcast Music, 441 U.S. at 24, 99 S.Ct. at 1565 (holding only that a particular ancillary restraint did not constitute a per se violation of the Sherman Act and remanding for a determination , of the case under a rule of reason analysis); Northwest Stationers, 472 U.S. at 293-98, 105 S.Ct. at 2619 (same); cf. SCFC ILC, Inc. v. Visa U.S.A. Inc., 36 F.3d 958, 964-65 (10th Cir.1994) (rejecting arguments that joint ventures require a “spe- eial” rule of reason review, but finding no violation of Section 1 on the specific facts of the case). One basic tenet of the rule of reason is that a given restriction is not reasonable, that is, its benefits cannot outweigh its harm to competition, if a reasonable, less restrictive alternative to the policy exists that would provide the same benefits as the current restraint. L.A. Coliseum, 726 F.2d at 1396." }, { "docid": "396580", "title": "", "text": "issue of fact on the monopolization and attempt to monopolize claim. THE SECTION ONE ALLEGATIONS Supermarket alleges three violations of section 1 of the Sherman Act: price fixing; group boycott; and conspiracy in restraint of trade. Price fixing is a per se violation of § 1 of the Sherman Act. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979). For a pricing policy to violate § 1, it must result from an illegal agreement. United States v. Miller, 771 F.2d 1219, 1240 (9th Cir.1985). The agreement may be explicit or implicit Parallel pricing does not constitute price fixing. When the pricing behavior cannot be explained as being in the participants’ self-interest, however, parallel pricing may evidence an illegal agreement. Wilcox Development Co. v. First Interstate Bank of Oregon, 605 F.Supp. 592, 594 (D.Or.1985). Some horizontal group boycotts, that is, boycotts between competitors, are per se violations of § 1. Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959); Kaplan v. Burroughs Corp., 611 F.2d 286, 290 (9th Cir.), cert. denied, 447 U.S. 924, 100 S.Ct. 3016, 65 L.Ed.2d 1116 (1980). Before we apply the per se rule, however, a plaintiff must show that the challenged activity “falls into a category likely to have predominantly anticompetitive effects.” See Northwest Wholesale Stationers, Inc. v. Pacific Stationery and Printing Co., — U.S. -, 105 S.Ct. 2613, 2621, 86 L.Ed.2d 202 (1985). However, the unilateral refusal by one trader to deal with another is not a group boycott. An agreement, some concerted effort, is required before a group boycott exists. Fine v. Barry and Enright Productions, 731 F.2d 1394, 1398 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984). A conspiracy to restrain trade also violates § 1. Conduct not deemed a per se violation of § 1 is analyzed under the rule of reason, which asks whether there is an agreement among two or more persons or distinct business entities, the intent of which is to to harm or" }, { "docid": "3298824", "title": "", "text": "and thus not violative of the Sherman Act. We take no issue with the proposition that certain joint ventures enable separate business entities to combine their skills and resources in pursuit of a common goal that cannot be effectively pursued by the venturers acting alone. See, e.g., Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979). We also do not dispute that a “restraint” that is ancillary to the functioning of such a joint activity — i.e. one that is required to make the joint activity more efficient — does not necessarily violate the antitrust laws. Broadcast Music, 441 U.S. at 23-25, 99 S.Ct. at 1564-1565; Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 223-24 (D.C.Cir.1986), cert. denied, 479 U.S. 1033, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987); see also Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 295-96, 105 S.Ct. 2613, 2620, 86 L.Ed.2d 202 (1985). We further accept, for purposes of this appeal, that rules controlling who may join a joint venture can be ancillary to a legitimate joint activity and that the NFL’s own policy against public ownership constitutes one example of such an ancillary rule. Finally, we accept the NFL’s claim that its public ownership policy contributes to the ability of the NFL to function as an effective sports league, and that the NFL’s functioning would be impaired if publicly owned teams were permitted, because the short-term dividend interests of a club’s shareholder would often conflict with the long-term interests of the league as a whole. That is, the policy avoids a detrimental conflict of interests between team shareholders and the league. We disagree, however, that these factors are sufficient to establish as a matter of law that the NFL’s ownership policy does not unreasonably restrain trade in violation of § 1 of the Sherman Act. The holdings in Broadcast Music, Rothery Storage, and Northwest Stationers, do not throw the “rule of reason” out the window merely because one establishes that a given practice among joint venture" }, { "docid": "3298823", "title": "", "text": "values. One NFL owner, Lamar Hunt, acknowledged that increased access to capital can improve a team’s operations and performance. A memorandum prepared by an NFL staff member stated that changes to the NFL’s public ownership policy could contribute to each NFL team’s own financial strength and viability, which in turn would benefit the entire NFL because the league has a strong interest in having strong, viable teams. The NFL presented a large amount of evidence to the contrary and now claims on appeal that Sullivan’s position was based on nothing more than sheer speculation. We have reviewed the record, however, and we cannot say that the evidence was so overwhelming that no reasonable jury could find against the NFL and in favor of Sullivan. We therefore refuse to enter judgment in favor of the NFL as a matter of law. B. Ancillary Benefits The NFL next argues that even if its public ownership policy injures competition in a relevant market, it should be upheld as ancillary to the legitimate joint activity that is “NFL football” and thus not violative of the Sherman Act. We take no issue with the proposition that certain joint ventures enable separate business entities to combine their skills and resources in pursuit of a common goal that cannot be effectively pursued by the venturers acting alone. See, e.g., Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979). We also do not dispute that a “restraint” that is ancillary to the functioning of such a joint activity — i.e. one that is required to make the joint activity more efficient — does not necessarily violate the antitrust laws. Broadcast Music, 441 U.S. at 23-25, 99 S.Ct. at 1564-1565; Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 223-24 (D.C.Cir.1986), cert. denied, 479 U.S. 1033, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987); see also Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 295-96, 105 S.Ct. 2613, 2620, 86 L.Ed.2d 202 (1985). We further accept, for purposes of this appeal, that" }, { "docid": "1377056", "title": "", "text": "probably led the court to forgo the eviden-tiary hearing. I believe it is wise, therefore, to discuss the findings of fact that a court must make before it may apply the per se rule to a case such as this. With regard to the boycott claim, I submit that the Supreme Court’s opinion in Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985), clearly prohibits the application of the per se rule to cooperative buying arrangements unless a court has made certain preliminary findings of fact. In Northwest, the Court held that “[ajbsent ... a showing [of market power or exclusive access to an element essential to effective competition] with respect to a cooperative buying arrangement, courts should apply a rule-of-reason analysis.” 472 U.S. at 297, 105 S.Ct. at 2621; see Live Poultry Dealers’ Protective Assoc. v. United States, 4 F.2d 840, 842-43 (2d Cir.1924) (L. Hand, J.) (Sherman Act forbids “all agreements preventing competition in price among a group of buyers, otherwise competitive, if they are numerous enough to affect the market”). Thus, the district court must make findings of fact with regard to the South Florida Hospital Association's (SFHA) market power and control over access to an essential element of competition. If, for example, the district court finds that the SFHA is merely an association of small hospitals that, as a combined force, accounts for only a small share of the relevant market for temporary nursing services, then the court should hold that the SFHA does not possess market power. Likewise, if the court finds that members of the SFHA could contract independently with temporary nursing agencies, then the court might also hold that the SFHA does not have control over access to an essential element of competition. Cf. Broadcast Music, Inc. v. Columbia Broadcasting Sys., 441 U.S. 1, 23-24, 99 S.Ct. 1551, 1564, 60 L.Ed.2d 1 (1979) (noting that members of a joint sales agency could sell independently). If the court finds either that the SFHA had market power or that it had control over access" }, { "docid": "4111764", "title": "", "text": "per se rules are appropriate only for “conduct that is manifestly anticompetitive,” id., at 50 [97 S.Ct. at 2557], that is, conduct “ ‘that would always or almost always tend to restrict competition and decrease output,’ ” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289-290 [105 S.Ct. 2613, 2617, 86 L.Ed.2d 202] (1985), quoting Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 19-20 [99 S.Ct. 1551, 1562, 60 L.Ed.2d 1] (1979). Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. at 723, 108 S.Ct. at 1519. “The per se rule is a presumption of unreasonableness based on ‘business certainty and litigation efficiency.’ ... ‘Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable.’ ” Atlantic Richfield Co. v. USA Petroleum Co., 110 S.Ct. at 1893 (quoting Arizona v. Maricopa County Medical Society, 457 U.S. 332, 344, 102 S.Ct. 2466, 2473, 73 L.Ed.2d 48 (1982)). “Per se rules are invoked when surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination of the challenged conduct.” National Collegiate Athletic Ass’n v. Board of Regents of University of Oklahoma, 468 U.S. 85, 103-04, 104 S.Ct. 2948, 2961, 82 L.Ed.2d 70 (1984). Price-fixing agreements, for example, typically warrant per se treatment. Id. at 100, 104 S.Ct. at 2959. Thus, the per se approach “permits categorical judgments with respect to certain business practices that have proved to be predominantly anticompetitive.” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289, 105 S.Ct. 2613, 2617, 86 L.Ed.2d 202 (1985). The goal of the inquiry remains constant under either analysis. “Both per se rules and the Rule of Reason are employed ‘to form a judgment about the competitive significance of the restraint.’ ” National Collegiate Athletic Ass’n, 468 U.S. at 103, 104 S.Ct. at 2961 (quoting National Society of Professional Engineers v. United States, 435 U.S. at 692, 98 S.Ct. at 1365). The methodological" }, { "docid": "23073039", "title": "", "text": "have an independent value.” 519 F.Supp. at 584. We agree with this reasoning. NFL rules have been found to violate § 1 in other contexts. Most recently, the Second Circuit analyzed the NFL’s rule preventing its member-owners from having ownership interests in other professional sports clubs. North American Soccer League v. National Football League, 670 F.2d 1249, 1257-1259 (2d Cir.), cert, denied, 459 U.S. 1074, 103 S.Ct. 499, 74 L.Ed.2d 639 (1982). It recognized the cooperation necessary among league members, even characterizing the NFL as a joint venture, but nonetheless applied rule of reason analysis and found the cross-ownership rule violated § 1. Other courts have held the League rules governing player contracts violate § 1 of the Sherman Act. Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C.Cir. 1978); Mackey v. NFL, 543 F.2d 606 (8th Cir.1976); Kapp v. NFL, 390 F.Supp. 73 (N.D.Cal.1974), appeal vacated, 586 F.2d 644 (9th Cir.1978), cert, denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). As noted by the Second Circuit in Soccer League, a finding of single entity status would immunize the NFL from § 1 scrutiny: To tolerate such a loophole would permit league members to escape antitrust responsibility for any restraint entered into by them that would benefit their league or enhance their ability to compete even though the benefit would be outweighed by its anticompetitive effects. Moreover, the restraint might be one adopted more for the protection of individual league members from competition than to help the league. 670 F.2d at 1257. Cases applying the single entity or joint venture theory in other business areas also contradict the NFL’s argument. As stated by the Supreme Court: Nor do we find any support in reason or authority for the proposition that agreements between legally separate persons and companies to suppress competition among themselves and others can be justified by labelling the project a “joint venture.” Perhaps every agreement and combination in restraint of trade could be so labeled. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199,1206 (1951). Timken" }, { "docid": "14349810", "title": "", "text": "control the prices they will charge for their respective goods or services, is among the activities that the Supreme Court has consistently held to be illegal per se. See, e.g., FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 435-36, 110 S.Ct. 768, 781-82, 107 L.Ed.2d 851 (1990); Maricopa, 457 U.S. at 344-47, 102 S.Ct. at 2472-74; Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 646-47, 100 S.Ct. 1925, 1927-28, 64 L.Ed.2d 580 (1980); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Trenton Potteries Co., 273 U.S. 392, 397-98, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1927). The Court has made clear, however, that the test for determining what constitutes per se unlawful price-fixing is one of substance, not semantics. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 8-9, 99 S.Ct. 1551, 1556-57, 60 L.Ed.2d 1 (1979). Per se rules of illegality are judicial constructs, Superior Court Trial Lawyers Ass’n, 493 U.S. at 432-33, 110 S.Ct. at 780, and are based in large part on economic predictions that certain types of activity will more often than not unreasonably restrain competition, Maricopa, 457 U.S. at 344, 102 S.Ct. at 2473 (“Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable.”); Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289, 105 S.Ct. 2613, 2617, 86 L.Ed.2d 202 (1985) (“Th[e] per se approach permits categorical judgments with respect to certain business practices that have proved to be predominantly anticompeti-tive.”); NCAA, 468 U.S. at 103-04, 104 S.Ct. at 2961 (“Per se rules are invoked when the surrounding circumstances make the likelihood of anticompetitive conduct so great as to render unjustified further examination of the challenged conduct.”); Broadcast Music, 441 U.S. at 19-20, 99 S.Ct. at 1562 (In determining whether to characterize conduct as per se unlawful, the Court considers “whether the practice facially appears to be one that would" }, { "docid": "11263070", "title": "", "text": "that set the price for the blanket license it sold (id. at 8, 99 S.Ct. 1551) the Court nonetheless held that per se treatment was inappropriate because rather than being a naked restraint, the blanket license “aecompa- nie[d] the integration of sales, monitoring, and enforcement against unauthorized copyright use” (id. at 20, 99 S.Ct. 1551). And as the Court further explained, “a bulk license of some type is a necessary consequence of the integration necessary to achieve these efficiencies, and a necessary consequence of an aggregate license is that its price must be established” (id. at 21, 99 S.Ct. 1551). While there are few reported cases that apply Section 1 and the ancillary restraints doctrine to cooperative purchasing arrangements, Kartell v. Blue Shield of Mass., Inc., 749 F.2d 922, 925 (2nd Cir.1984) observed that courts had invalidated such arrangements only where “the buyer was typically a ‘sham’ organization seeking only to combine otherwise independent buyers in order to suppress their otherwise competitive instinct to bid up price.” But where in contrast buyers join together in a productive venture, cooperative buying is rarely viewed as a per se unlawful restraint under Section 1 so long as it contributes to the productive enterprise. Northwest Wholesale Stationers thus held that a non-profit wholesale purchasing cooperative that allowed office-supply retailers to “achieve economies of scale in purchasing and warehousing that would be otherwise unavailable to them” (472 U.S. at 286-87, 105 S.Ct. 2613) was (id. at 295, 105 S.Ct. 2613 (internal quotation marks omitted)): not a form of concerted activity characteristically likely to result in predominantly anticompetitive effects. Rather, such cooperative arrangements would seem to be designed to increase economic efficiency and render markets more, rather than less, competitive. And Addamax Corp. v. Open Software Found., Inc., 152 F.3d 48, 52 (1st Cir.1998) held that per se treatment was inappropriate where the alleged anticompetitive conduct — an agreement between a joint venture’s constituent firms as to the price at which the venture would purchase inputs — was ancillary to the joint venture’s productive contribution to the economy. Caremark relies on Broadcast Music, Northwest Wholesale" }, { "docid": "1385628", "title": "", "text": "we adopt much of its reasoning in this opinion. Section 1 of the Sherman Act prohibits “every contract, combination ... or conspiracy in restraint of trade or commerce. ...” 15 U.S.C. § 1. The Sherman Act’s prohibition generally precludes only restraints that are unreasonable. See Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985). The Supreme Court has developed two main analytical approaches for determining whether a defendant’s conduct unreasonably restrains trade: the per se rule and the rule of reason. The rule of reason is the usual method of analyzing conduct under the Sherman Act. See Northwest Wholesale, 472 U.S. at 289, 105 S.Ct. 2613. It requires “the fact finder [to] weight ] all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). Per se analysis is reserved for “ ‘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.’ ” Northwest Wholesale, 472 U.S. at 289, 105 S.Ct. 2613 (quoting Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958)). “The decision to apply the per se rule turns on ‘whether the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output ... or instead one designed to increase economic efficiency and render markets more, rather than less, competitive.’ ” Id. at 289-90, 105 S.Ct. 2613 (quoting Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 19-20, 99 S.Ct. 1551, 1562-63, 60 L.Ed.2d 1 (1979) (further quotations and citations omitted)). Because plaintiffs conceded below that they did not have sufficient evidence to proceed under a theory that defendants’ conduct violated" }, { "docid": "22435378", "title": "", "text": "se nor a quick-look approach is appropriate here, but I apply a substantially different framework than the majority in reaching my conclusion. Recognizing that joint ventures “hold the promise of increasing a firm’s efficiency and enabling it to compete more effectively,” the Supreme Court has concluded that joint ventures should normally be analyzed under a rule of reason, requiring an inquiry into market power and structure and the actual effects of any restraints on trade. Copperweld Corp., 467 U.S. at 768, 104 S.Ct. 2731; see also Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 295-98, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985) (same). “While joint ventures have no immunity from the antitrust laws ..., a joint selling arrangement may ‘mak[e] possible a new product by reaping otherwise unattainable efficiencies.’ ” NCAA v. Bd. of Regents, 468 U.S. 85, 113, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). Accordingly, competitors engaged in joint ventures may be permitted to engage in a variety of activities that would normally be illegal under a per se rule when such activities are necessary to achieve the significant efficiency-enhancing purposes of the venture. For example, price fixing between competitors — generally a per se illegal restraint— may be justifiable in certain circumstances when done as part of a joint venture. See Broad. Music, 441 U.S. at 23, 99 S.Ct. 1551. In short, to protect the efficiency-enhancing potential of joint ventures and cooperatives, the rule of reason is the favored method of analysis for these ventures, preventing courts from intervening before a full market analysis is completed. Nevertheless, a per se or quick-look approach may apply to joint ventures in at least two situations: (1) where a joint venture is essentially a sham, offering no reasonable prospect of any efficiency-enhancing benefit to society, see Addamax Corp. v. Open Software Found., Inc., 152 F.3d 48, 52 (1st Cir.1998); and (2) where a particular challenged restraint is not reasonably necessary to achieve any of the efficiency-enhancing benefits of a joint venture and serves only as naked restraint against competition, see Polk Bros., Inc. v. Forest" }, { "docid": "23073042", "title": "", "text": "(1982); Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 617 (9th Cir.1979), cert, denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 855 (1980). The facts make it clear the NFL does not fit within this exception. While the NFL clubs have certain common purposes, they do not operate as a single entity. NFL policies are not set by one individual or parent corporation, but by the separate teams acting jointly. It is true the NFL clubs must cooperate to a large extent in their endeavor in producing a “product” — the NFL season culminating in the Super Bowl. The necessity that otherwise independent businesses cooperate has not, however, sufficed to preclude scrutiny under § 1 of the Sherman Act. In Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), the Supreme Court rejected the assertion that the AP was immune from section 1 because it was a necessary cooperative of independent newspapers which produced a product its individual members could not. Id. at 26, 65 S.Ct. at 1427, 89 L.Ed. at 2034 (Frankfurter, J., concurring). More recently, the Court found the cooperation required among ostensible competitors in arranging blanket licensing of copyrighted songs precluded only a finding of per se illegality; instead, rule of reason analysis was the proper method to determine the legality of the arrangement. Broadcast Music, Inc. v. Columbia Broadcast System, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979); see also Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). The case of United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), is closely on point. Sealy licensed manufacturers to sell bedding products under the Sealy name and allocated territories to the licensees. The facts showed, however, that this arrangement was not vertical but horizontal; the 30 licensees, owning all of the stock of Sealy, controlled all its operations. 388 U.S. at 352-353, 87 S.Ct. at 1849-1850, 18 L.Ed.2d at 1242. Describing the Sealy organization as a joint venture, the Court nonetheless" }, { "docid": "23171511", "title": "", "text": "among competitors and group boycotts has been fluid. With regard to arrangements among competitors, compare United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129 (1940) (“[ujnder the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se ”), with Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1, 23, 99 S.Ct. 1551, 1564, 60 L.Ed.2d 1 (1979) (“[njot all arrangements among actual or potential competitors that have an impact on price are per se violations of the Sherman Act or even unreasonable restraints”). With regard to group boycotts, compare Klor’s Inc. v. Boradway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959) (“[gjroup boycotts, or concerted refusals by traders to deal with other traders, have long been held to be in the forbidden [per se ] category”), with Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 30-31, 104 S.Ct. 1551, 1567-68, 80 L.Ed.2d 2 (1984) (exclusion of physician from hospital staff privileges not violation of antitrust laws “[wjithout a showing of actual adverse effect on competition” in product market), and Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 296, 105 S.Ct. 2613, 2620, 86 L.Ed.2d 202 (1985) (group boycott was not per se illegal absent proof that buying cooperative possessed market power). Accordingly, we are wary of allowing a trier of fact to draw inferences of intent from the outcome of prior lawsuits in an area so fraught with uncertainty and doubt. Our wariness in this regard is enhanced by the fact that the lawsuits most pertinent to the instant action — involving claims by another league or a team in another league — were in fact won by the NFL. American Football League v. National Football League, 323 F.2d 124 (4th Cir.1963); Mid-South Grizzlies v. National Football League, 720 F.2d 772 (3d Cir.1983). The district court thus acted within its discretion in excluding evidence of" }, { "docid": "3298826", "title": "", "text": "participants is ancillary to legitimate and efficient activity — the injury to competition must still be weighed against the purported benefits under the rule of reason. See, e.g., Broadcast Music, 441 U.S. at 24, 99 S.Ct. at 1565 (holding only that a particular ancillary restraint did not constitute a per se violation of the Sherman Act and remanding for a determination , of the case under a rule of reason analysis); Northwest Stationers, 472 U.S. at 293-98, 105 S.Ct. at 2619 (same); cf. SCFC ILC, Inc. v. Visa U.S.A. Inc., 36 F.3d 958, 964-65 (10th Cir.1994) (rejecting arguments that joint ventures require a “spe- eial” rule of reason review, but finding no violation of Section 1 on the specific facts of the case). One basic tenet of the rule of reason is that a given restriction is not reasonable, that is, its benefits cannot outweigh its harm to competition, if a reasonable, less restrictive alternative to the policy exists that would provide the same benefits as the current restraint. L.A. Coliseum, 726 F.2d at 1396. The record contains evidence of a less restrictive alternative to the NFL’s ownership policy that may yield the same benefits as the current policy. Sullivan points to one proposal to amend the current ownership policy by allowing for the sale of minority, nonvoting shares of team stock to the public with restrictions on the size of the holdings by any one individual. Dividend payments, if any, would be within the firm control of the NFL majority owner. Under such a policy, it would be reasonable for a jury to conclude that private control of member clubs is maintained, conflicts of interest are avoided, and all the other “benefits” of the NFL’s joint venture arrangement are preserved while at the same time teams would have access to the market for public investment capital through the sale of ownership interests. Whether this proposed amendment is indeed a less restrictive, equally beneficial policy, is a jury question we need not reach here. We merely point to it as one factor a jury may consider in its rule of" }, { "docid": "8890857", "title": "", "text": "compete aggressively by making sure that members could offer a “full range of competing products.” (Ex. P-0667; see also Ex. P-1192; Ex. P-0668.) Management responded with a number of significant initiatives offered to member banks specifically to reduce their incentive to partner with American Express. (See Ex. P-0238.) These included, among others, permission for multi-national corporate cards, increasing network support for the Visa premium product, and improving service to merchants. MasterCard responded similarly to American Express on the international level. (See Ex. P-0467.) I. Defendants Have Not Met Their Burden to Come Forward with a Valid Procompetitive Justification to Excuse the Anticompetitive Effects of Their Exclusionary Rules The antitrust laws permit horizontal entities to combine their skills to create a product that could not be created separately, and such ventures may employ reasonable restraints to make the joint venture more efficient. (See, e.g., Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 23-25, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979); Rothery, 792 F.2d at 223-24.) However, the rule of reason still requires an analysis of whether the injury to competition effected by the restraint outweighs its purported benefits. (See, e.g., Sullivan, 34 F.3d at 1102 (holding that a particular ancillary restraint did not constitute a per se violation of the Sherman Act and remanding for a determination of the case under a rule of reason analysis); Northwest Stationers, 472 U.S. at 293-98, 105 S.Ct. 2613 (same); cf. SCFC ILC, Inc. v. Visa U.S.A. Inc., 36 F.3d 958, 964-65 (10th Cir.1994) (rejecting arguments that joint ventures require a “special” rule of reason review, but finding no violation of Section 1 on the specific facts of the case).) While the plaintiff bears the initial burden of demonstrating that the challenged restraint in fact harms competition, once a plaintiff succeeds in establishing the actual adverse effects of an alleged restraint, the burden shifts to the defendant to establish its pro-competitive redeeming virtues. (See Clorox, 117 F.3d at 59.) Here, Plaintiff does not dispute the fact that MasterCard and Visa are legitimate joint ventures. Whereas prior to the creation of the associations," }, { "docid": "22435377", "title": "", "text": "the exclusivity and profit-sharing agreements is to eliminate price competition between the Clubs, the purpose of these agreements is to achieve other significant procompetitive benefits, which outweigh any harm from the price restraint. We must decide then whether the Clubs’ agreement not to compete with each other on price, which is price fixing in a literal sense, should nevertheless be reviewed under a rule of reason in light of MLBP’s other efficiency-enhancing benefits. See Texaco Inc. v. Dagher, 547 U.S. 1, 5, 126 S.Ct. 1276, 164 L.Ed.2d 1 (2006); Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 8-9, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979) (rejecting application of the per se rule to every situation where there is literal price fixing because “[ljiter-alness is overly simplistic and often over-broad” and explaining that “ ‘price fixing’ is a shorthand way of describing certain categories of business behavior to which the per se rule has been held applicable”). For the reasons described below, I join with the majority in concluding that neither a per se nor a quick-look approach is appropriate here, but I apply a substantially different framework than the majority in reaching my conclusion. Recognizing that joint ventures “hold the promise of increasing a firm’s efficiency and enabling it to compete more effectively,” the Supreme Court has concluded that joint ventures should normally be analyzed under a rule of reason, requiring an inquiry into market power and structure and the actual effects of any restraints on trade. Copperweld Corp., 467 U.S. at 768, 104 S.Ct. 2731; see also Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 295-98, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985) (same). “While joint ventures have no immunity from the antitrust laws ..., a joint selling arrangement may ‘mak[e] possible a new product by reaping otherwise unattainable efficiencies.’ ” NCAA v. Bd. of Regents, 468 U.S. 85, 113, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). Accordingly, competitors engaged in joint ventures may be permitted to engage in a variety of activities that would normally be illegal under a per" }, { "docid": "23073043", "title": "", "text": "at 1427, 89 L.Ed. at 2034 (Frankfurter, J., concurring). More recently, the Court found the cooperation required among ostensible competitors in arranging blanket licensing of copyrighted songs precluded only a finding of per se illegality; instead, rule of reason analysis was the proper method to determine the legality of the arrangement. Broadcast Music, Inc. v. Columbia Broadcast System, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979); see also Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). The case of United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), is closely on point. Sealy licensed manufacturers to sell bedding products under the Sealy name and allocated territories to the licensees. The facts showed, however, that this arrangement was not vertical but horizontal; the 30 licensees, owning all of the stock of Sealy, controlled all its operations. 388 U.S. at 352-353, 87 S.Ct. at 1849-1850, 18 L.Ed.2d at 1242. Describing the Sealy organization as a joint venture, the Court nonetheless found it a per se violation of the Sherman Act. See also United States v. Topco Associates, Inc., 405 U.S. 596, 609, 92 S.Ct. 1126,1134, 31 L.Ed.2d 515, 526 (1972) (Court finding a per se violation on facts similar to Sealy). The NFL structure is very similar to that in Sealy. The League itself.is only in very limited respects an identity separate from the individual teams. It is an unincorporated, not-for-profit, “association.” It has a New York office run by the Commissioner, Pete Rozelle, who makes day-to-day decisions regarding League operations. Its primary functions are in the areas of scheduling, resolving disputes among players and franchises, supervising officials, discipline and public relations. The decision involved here on territorial divisions is made by the NFL Executive Committee which is comprised of a representative of each club. Even though the individual clubs often act for the common good of the NFL, we must not lose sight of the purpose of the NFL as stated in Article I of its constitution, which is to “promote and foster the" }, { "docid": "8164597", "title": "", "text": "section 1, no offsetting economic or efficiency justifications salvaging them. “This per se approach permits categorical judgments with respect to certain business practices that have proved to be predominantly anticompetitive.” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289, 105 S.Ct. 2613, 2617, 86 L.Ed.2d 202 (1985). The sharp line between per se and rule of reason analysis, however, especially blurs under section 1 when the actors change: In the case of a joint venture, present here in the Visa USA association, competitive incentives between independent firms are intentionally restrained and their functions and operations integrated to achieve efficiencies and increase output. See Joseph F. Brodley, Joint Ventures and Antitrust Policy, 95 Harv. L.Rev. 1523, 1524 (1982). Although virtually any collaborative activity among business firms may be called a joint venture, joint ventures differ from mergers and cartels by the extent to which they integrate the resources of their partners. A cartel constitutes a naked agreement among competitors unaccompanied by any integration of resources. In a joint venture, partners contribute assets, such as, capital, technology, or production facilities to a common endeavor. This integration of resources creates economic efficiencies that cannot be achieved by naked agreements among competitors. Indeed, the efficiencies created by joint ventures are similar to those resulting from mergers — risk-sharing, economies of scale, access to complementary resources and the elimination of duplication and waste. Joint ventures, however, differ from mergers in a critical way: because they are less integrated than mergers, they allow their partners to continue to compete with each other in the relevant market. Thomas A. Piraino, Jr., Beyond Per Se, Rule of Reason or Merger Analysis: A New Antitrust Standard for Joint Ventures, 76 Minn. L.Rev. 1, 7 (1991) (italics added). The whole becomes greater than the sum of its parts. However, at its center remains an agreement among competitors to eliminate competition in some way. The Supreme Court has recognized this tension in its evolving treatment of allegedly anticompetitive agreements by joint ventures. In Broadcast Music, Inc. v. Columbia Broadcasting, Inc., 441 U.S. 1, 99 S.Ct. 1551," } ]

[ { "docid": "15395393", "title": "", "text": "interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both State and federal courts within a state serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” [citation omitted] 440 U.S. at 55, 99 S.Ct. at 918. The Supreme Court did of course recognize in Butner that “[t]he equity powers of the bankruptcy court play an important part in the administration of bankrupt estates in countless situations in which the judge is required to deal with particular, individualized problems.” 440 U.S. at 55-6, 99 S.Ct. at 918. From the fundamental principles embraced by the Butner opinion, however, as well as from the language of § 105(a) itself, it follows that, absent a specific grant of authority from Congress or exceptional circumstances, a bankruptcy court may not exercise its equitable powers to create substantive rights which do not exist under state law. See In Re Perry, 25 B.R. 817, 821 (Bkrtcy.D.Md.1982); In Re Dunckle Associates, Inc., 19 B.R. 481, 485 (Bkrtcy.E.D.Penn.1982); and cf. In Re Trigg, 630 F.2d 1370, 1375 (10th Cir.1980). To conclude otherwise, and thus to hold that a bankruptcy court may, as a matter of course, suspend the running of a statutory period of redemption pursuant to § 105(a), would be to enlarge the debtor’s property rights beyond those specifically set forth by the Minnesota legislature and by Congress in § 108(b). Despite the broad equitable powers bestowed by § 105(a), we therefore find ourselves in agreement with those courts which have held that § 105(a) may not be invoked to toll or suspend the running of a statutory period of redemption absent fraud, mistake, accident, or erroneous conduct on the part of the foreclosing officer. In Re Martinson, 26 B.R. 648, 654 (D.C.D.N.D.1983); Matter of Markee, 31 B.R. 429, 432 (Bkrtcy.D.Idaho 1983); In Re James, 20 B.R. 145, 150-1 (Bkrtcy.E.D.Mich. 1982); In Re Headley, 13 B.R. 295, 297-98 (Bkrtcy.D.Colo.1981); but cf., Bank of Commonwealth v. Sevan, 13 B.R. 989 (D.C.E.D. Mich.1981); Bank of Ravenswood v. Patzold," } ]

[ { "docid": "10212293", "title": "", "text": "a complete stall first by their appeal to the Vermont Supreme Court and now by seeking relief under § 105(a). They argue that it would be more expedient to have the bankruptcy court determine the issues in the framework of the pending reorganization proceeding. This court takes a dim view of the request which could only result in the relitigation of matters which have been clearly determined by a court of competent jurisdiction after giving full consideration to the rights of the parties. The denial of relief to the movants under § 105(a) will not impair the ability of the bankruptcy court to determine the merit of the reorganization plan which has been submitted by the debtor. Its property is within the jurisdiction of this court and the responsibility of implementing the plan is clearly that of the debtor and not that of guarantors who up to the present time have not acted in any responsible manner. In effect the movants would have the bankruptcy court hold Sugarbush Valley, Inc., the District Environmental Commission and Chittenden Trust Company at bay, suspended in mid-air, while they sit coyly by awaiting manna from heaven in the eternal hope that it will solve their self created financial difficulties. In sum, they are requesting this court to endow them with newly created rights. Even though § 105 does grant to the bankruptcy court broad powers to “issue any order, process, or judgment that is necessary to carry out the provisions of the Bankruptcy Code”, it does not empower this court to fashion substantive rights out of thin air. In Re Perry (Bankr.D.Maryland—1982) 25 B.R. 817, 821. And regardless of the context in which the issue arises, the courts have consistently refused to exercise the power under § 105 to create or increase substantive rights. Johnson v. First National Bank of Montevideo, Minn. 719 F.2d 270, 274 (8th Cir.1983) citing In Re Perry, supra; In Re Dunckle Associates, Inc. (Bankr.E.D.Pa.1982) 19 B.R. 481, 485. The court also considers the observation of Chief Justice Berger most appropriate when he said in Lemon v. Kurtzman 411 U.S." }, { "docid": "10792317", "title": "", "text": "court is vested with broad discretionary power; appellate review is correspondingly narrow. . . . Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair and what is workable. In equity as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities involved in reconciling competing interests . . .” Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151, 161-162 (1973) (Burger, C. J.) The exercise of equity jurisdiction does not grant the Court carte blanche to impose its views upon the parties. The District Court must look to the facts (here, for instance, to ascertain the existence of rules and regulations which govern relations between the parties) and the law, as discussed above, to ascertain whether clear guidelines exist for its action. Finding none, the Court is compelled to undertake the difficult task of balancing the equities, paying heed above all to the public interest which will be furthered or deterred by his ruling. The very foundation of a just society — the rule of law rather than the rule of men — requires that a federal judge disdain his personal inclinations and adhere to the course dictated by the greatest good for that society, paying due heed to the rights of each of its members. This Court takes judicial notice of the fact that it is the nearly universal practice in modern labor relations for a union to waive the right to strike during the term of its collective bargaining agreements. This limited waiver right has been repeatedly recognized and upheld by the federal judiciary, most recently in NLRB v. Magnavox,-U.S. --,-, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974) and Alexander v. Gardner Denver Co., - U.S. -, -, 94 S.Ct. 1101, 39 L.Ed.2d 147 (1974). Those cases which approve the giving up of the right to strike during the term of a negotiated collective bargaining agreement, while not directly in point, are of some persuasiveness for they establish the principle that a union’s right to strike is waivable under" }, { "docid": "684786", "title": "", "text": "(C.A.5, 1973), cert. den. 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973). See generally, “Developments in the Law-Injunctions”, 78 Harv.L.Rev. 994 (1965). Perhaps the most significant single component in the judicial decision whether to exercise equity jurisdiction and grant permanent injunctive relief, is the court’s discretion. Being an extraordinary remedy, it is not granted routinely. “We are dealing here with the requirements of equity practice with a background of several hundred years of history. . . The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied.” Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 591-592, 88 L.Ed. 754 (1944), cited in Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 95 S.Ct. 2069, 45 L.Ed.2d 12 (1975), emphasis added in that case. “In shaping equity decrees, the trial court is vested with broad discretionary power . Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable. ‘Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’ . “In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional roots.” Lemon v. Kurtzman, 411 U.S. 192, 200-201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973). See Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). If this balancing of competing interests is required where constitutional rights are" }, { "docid": "10241735", "title": "", "text": "It is a blend of what is fair and what is just. Flexibility, rather than rigidity, has distinguished it. “In equity, as nowhere else, courts ... look to the practical realities and necessities inescapably involved in reconciling competing interests ...” Lemon v. Kurtzman, 411 U.S. 192, 201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973). Giving “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction,” is “enough to indicate why it would be inequitable” to deny Grant the preference which has been granted to him and to which he is entitled. Bank of Marin v. England, supra, 385 U.S. at 103, 87 S.Ct. at 277. Likewise, it would be, indeed, unjust to fail to allow Grant the priority, for it would be an unjust enrichment to the others having administrative expenses and other claims. Spring Construction Company, Inc. v. Harris, 614 F.2d 374, 378 (4th Cir.1980). A. Viewing the right to grant priority, and the action in granting it as an equitable matter, the Court turns to whether the failure to give notice and hold a hearing as a prerequisite to obtaining the funds is fatal, or whether the Court may ratify the action and grant the priority after the fact. Generally speaking, prior notice is not jurisdictional. The better reasoning holds that the bankruptcy court may approve the loan and grant the priority after the fact, where the loan was for an approvable purpose and benefited the business. In dealing with the priority permitted by § 364(c), In the Matter of EDC Holding Co., 676 F.2d 945, 948 (7th Cir.1982), the Court pointed out that the lender must act in good faith, and the Court could not grant a “special priority without showing that the proceeds of the loan would be used for a proper purpose.” In Wolf v. Nazareth Fair Grounds & Farmers’ Market, Inc., 280 F.2d 891, 892 (2d Cir.1960), dealing with similar provisions of the Bankruptcy Act, the Court said it had previously held that an unauthorized loan may receive priority in such unusual circumstances as would justify equitable relief, as it was not" }, { "docid": "5259575", "title": "", "text": "necessary, what is fair, and what is workable. . In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests . . . . • Id. at 200-01, 93 S.Ct. at 1469 (citations and footnotes omitted). Lemon I (Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)) had held unconstitutional, as a violation of the First Amendment’s Establishment Clause, a state statute which provided for reimbursement of nonpublic sectarian schools for certain secular educational services. Upon remand, the District Court enjoined payment under this statute for any services performed after the date of the decision in Lemon I, but permitted reimbursement for services provided prior to that date. In Lemon II, the Court upheld the District Court’s decree, emphasizing that the schools had incurred expenses in reliance on the statute and would suffer financial hardship if reimbursement were denied. 411 U.S. at 203-04, 93 S.Ct. 1463. The Court further noted that the schools’ reliance was reasonable and in good faith, inasmuch as “Lemon I ‘decid[ed] an issue of first impression whose resolution was not clearly foreshadowed,’ ” and was reinforced by the fact that plaintiffs had not pressed for an injunction suspending payments during the pendency of Lemon I. Id. at 204-07, 93 S.Ct. 1463. Since “[rjestitution is essentially an equitable remedy,” Democratic Central Committee v. Washington Metropolitan Area Transit Commission, 158 U.S.App.D.C. 7, 485 F.2d 786, 825 (1973), cert. denied, 415 U.S. 935, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1974), the general principles governing the shaping and review of equitable decrees are fully applicable to awards of restitution. This court has described the standards which should guide an equity court when a government agency has unlawfully authorized a rate increase by a regulated entity, as follows: Ordinarily . . . the proper disposition on setting aside a rate increase unlawfully ordered by the [agency] would be to compel the regulated company to restore the entire difference between the higher fares collected under the invalid order and the amount that it would have received" }, { "docid": "684787", "title": "", "text": "Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 591-592, 88 L.Ed. 754 (1944), cited in Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 95 S.Ct. 2069, 45 L.Ed.2d 12 (1975), emphasis added in that case. “In shaping equity decrees, the trial court is vested with broad discretionary power . Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable. ‘Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’ . “In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional roots.” Lemon v. Kurtzman, 411 U.S. 192, 200-201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973). See Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). If this balancing of competing interests is required where constitutional rights are at stake, can it be seriously argued that this Court should have a different standard where statutory matters are at issue? We think not. See Essex County Preservation Association v. Campbell, 536 F.2d 956, 962 (C.A.1, 1976); Aluli v. Brown, 437 F.Supp. 602, 611 (D.C.Haw.1977), rev. in part, 602 F.2d 876 (C.A.9, 1979); State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 753-754 (C.A.2, 1977); Ohio v. Callaway, 497 F.2d 1235 (C.A.6, 1974); Conservation Society of Southern Vermont v. Secretary of Transportation, 508 F.2d 927 (C.A.2, 1974), vacated on other grounds and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975); Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033 (C.A.8, 1973). The courts in construing environmental statutes such as NEPA have consistently suggested that the relief afforded be a product of balancing of equities. See Silva v. Romney, 473 F.2d 287 (C.A.1, 1973); Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50 (N.D.Cal.1972), aff’d 487 F.2d 814 (C.A.9, 1973), cert. den. 416 U.S. 974, 94 S.Ct. 2002, 40 L.Ed.2d 564" }, { "docid": "10190375", "title": "", "text": "not this claimant, who cites no authority) invoke 11 U.S.C. § 105(a), which authorizes a bankruptcy court to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title,” to support this principle. However, as to-the proper scope of § 105(a), and, we believe, of whatever other equitable powers a bankruptcy court might have, the Third Circuit Court of Appeals has held, in In re Morristown & E.R.R., 885 F.2d 98, 100 (3rd Cir.1989), that [sjection 105(a) authorizes the bankruptcy court, or the district court sitting in bankruptcy, to fashion such orders as are required to further the substantive provisions of the Code. Section 105(a) gives the court general equitable powers, but only insofar as those powers are applied in a manner consistent with the Code. See Lawrence P. King, COLLIER ON BANKRUPTCY, H 105.04 at 105-15 & n. 5 (15th Ed.1989). Nor does section 105(a) give the court the power to create substantive rights that would otherwise be unavailable under the Code. See Southern Ry. Co. v. Johnson Bronze Co., 758 F.2d 137, 141 (3rd Cir.1985) (holding that a bankruptcy court does not have the authority under § 105 to create a lien to secure payment of environmental cleanup costs when the contract obligating the debtor to pay such costs did not provide for such a lien). Accord, Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 968, 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”). Thus, this court, in In re Amatex Corp., 97 B.R. 220, 225 (Bankr.E.D.Pa.), aff'd sub nom. Amatex Corp. v. Stonewall Ins. Co., 102 B.R. 411 (E.D.Pa.1989), has held that § 105(a) cannot be utilized “as a justification for our proceeding to take otherwise doubtfully authorized judicial actions” In re Telephonies, Inc., 85 B.R. 312, 318 (Bankr.E.D.Pa.1988), or “ ‘as a loose cannon ... to support otherwise insupportable claims.’ ” In re University Medical Center, 82 B.R. 754, 758 (Bankr.E.D.Pa. 1988) (quoting In re Latimer, 82" }, { "docid": "14780904", "title": "", "text": "U.S.C. § 542(a). We agree. The bankruptcy court properly held that neither Handy Andy nor Carl’s was entitled to a setoff pursuant to 11 U.S.C. § 553 because such a setoff requires mutuality of debt. In the Matter of Universal Money Order Co., 3 Bankr.Ct.Dec. (CRR) 905, 906 (Bankr.S.D. N.Y.1977). Nevertheless, the bankruptcy court fashioned a so-called “equitable set-off” invoking its § 105 equitable powers. Generally, the bankruptcy court possesses only the jurisdiction and powers conferred upon it by Congress, and its broad equitable powers may only be used to further the policies and provisions of the Code. Johnson v. First National Bank, 719 F.2d 270, 273 (8th Cir.1983). Section 105(a) provides: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. Unquestionably, § 105 of the Bankruptcy Code allows the bankruptcy court to exercise broad powers in the administration of its cases. It is even broader than Section 2a(15) of the Bankruptcy Act from which it is derived. 2 Collier on Bankruptcy § 105.01 at 105-1 et. seq. (15th ed.1983). Nevertheless, Chapter 1 of the Bankruptcy Code is essentially procedural. It does not set out substantive rights of the parties. 1978 U.S.Code Cong. & Admin.News, 5790. Section 105 is comparable to the All Writs Statute, 28 U.S.C. § 1651. Its purpose is to allow the bankruptcy court to issue equitable orders such as injunctions and stays and to punish for contempt in cases where such actions are consistent with the provisions of the Code. Section 105 does not empower a bankruptcy court to create new substantive rights. United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir.1986); see also In re Perry, 25 B.R. 817, 821 (Bankr.D.Md.1982). The overall structure of the Bankruptcy Code is designed to treat creditors equally. Every setoff by its very nature is a preference. Yet § 553 allows the bankruptcy court to recognize setoffs in certain situations where there is mutuality of debt. Even so, a bankruptcy court may disallow an otherwise proper § 553 setoff if there are compelling reasons for" }, { "docid": "10231184", "title": "", "text": "and possession of its business. The appointment of a trustee is viewed as an extraordinary remedy, for when a trustee is appointed, the trustee displaces current management and assumes the decisionmak-ing functions. In re Casco Bay Lines, Inc., 17 B.R. 946, 952 (Bankr. 1st Cir.1982); In re Cole, 66 B.R. 75 (Bankr.E.D.Pa.1986); In re H & S Transp. Co., Inc., 55 B.R. 786, 790 (Bankr.M.D.Tenn.1985). As a result, the evidence needed to justify the appointment of a trustee must be “clear and convincing” — as opposed to the usual preponderance standard. In re Paolino, 53 B.R. at 401; In re General Oil Distributors, Inc., 42 B.R. at 409. In re Tyler, 18 B.R. 574, 577 (Bankr.S.D.Fla.1982). Finally, although written in reference to section 1104(a)(2), the following statement well articulates how court discretion may be applied when concerned with the appointment of a trustee: In determining whether the appointment of a trustee is in the best interest of creditors, a bankruptcy court must necessarily resort to its broad equity powers. In equity, as no where else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests_ Moreover, equitable remedies are a special blend of what is necessary, what is fair and what is workable. In re Hotel Associates, Inc., 3 B.R. at 345 (citations omitted). III. Movants seek the appointment of a trustee pursuant to § 1104(a)(1), and (2). However, although the motion for appointment makes reference to the best interest language of (a)(2), all of the evidence present ed was designed to show that cause exists under § 1104(a)(1). Therefore, I shall focus upon the question of “cause”. Although the appointment of a trustee is viewed as extraordinary, there are a surprisingly large number of decisions involving issues under 11 U.S.C. § 1104(a)(1). Categorization of these decisions is not straightforward but one commentator has grouped decisions in which the appointment of a trustee has been ordered as follows: conflicts of interest, including inappropriate relations between corporate parents and the subsidiaries; misuse of assets and funds; inadequate recordkeeping and reporting; nonfiling of required" }, { "docid": "22614782", "title": "", "text": "Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944). “Moreover, . . . equitable remedies are a special blend of what is necessary, what is fair, and what is workable. . . Lemon v. Kurtzman., 411 U. S. 192, 200 (1973) (opinion of Burger, C. J.). “In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests ...Id., at 201. The decision whether to grant competitive-type seniority relief therefore requires a district court to consider and weigh competing equities. In any proper exercise of the balancing process, a court must consider both the claims of the discrimination victims and the claims of incumbent employees who, if competitive seniority rights are awarded retroactively to others, will lose economic advantages earned through satisfactory and often long service. If, as the Court today holds, the district court may not weigh these equities much of the language of § 706 (g) is rendered meaningless. We cannot assume that Congress intended either that the statutory lan guage be ignored or that the earned benefits of incumbent employees be wiped out by a presumption created by this Court. B The Court’s concern to effectuate an absolutist conception of “make whole” should be tempered by a recognition that a retroactive grant of competitive-type seniority touches upon other congressional concerns expressed in Title VII. Two sections of the Act, although not speaking directly to the issue, indicate that this remedy, unlike backpay and benefit-type seniority, should not be granted automatically. The first section, § 703 (h), has been discussed in the Court’s opinion. As there noted, the “thrust” of that section is the validation of seniority plans in existence on the effective date of Title VII. The congressional debates leading to the introduction of § 703 (h) indicate a concern that Title VII not be construed as requiring" }, { "docid": "22614781", "title": "", "text": "of losing their jobs entirely — are not the wrongdoers who have no claim to the Chancellor’s conscience, but rather are innocent third parties. As noted above in Part II, Congress in § 706 (g) expressly referred to \"appropriate” affirmative action and “other equitable relief as the court deems appropriate.” And the 1972 Section-by-Section Analysis still recognized that the touchstone of any relief is equity. Congress could not have been more explicit in leaving the relief to the equitable discretion of the court, to be determined in light of all relevant facts and circumstances. Congress did underscore “backpay” by specific reference in § 706 (g), but no mention is made of the granting of other benefits upon ordering reinstatement or hiring. The entire question of retroactive seniority was thus deliberately left to the discretion of the district court, a discretion to be exercised in accordance with equitable principles. “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944). “Moreover, . . . equitable remedies are a special blend of what is necessary, what is fair, and what is workable. . . Lemon v. Kurtzman., 411 U. S. 192, 200 (1973) (opinion of Burger, C. J.). “In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests ...Id., at 201. The decision whether to grant competitive-type seniority relief therefore requires a district court to consider and weigh competing equities. In any proper exercise of the balancing process, a court must consider both the claims of the discrimination victims and the claims of incumbent employees who, if competitive seniority rights are awarded retroactively to others, will lose economic advantages earned through satisfactory and often long service." }, { "docid": "10241734", "title": "", "text": "and the Trustee here was not able to do so — “the Court, after notice and hearing, may authorize the obtaining of credit ... with priority over any or all administrative expenses.” But the courts “do not read these statutory words with the ease of a computer,” for there “is an overriding consideration that equitable principles goyern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 277, 17 L.Ed.2d 197 (1966); Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939). See also Katchen v. Landy, 382 U.S. 323, 327, 86 S.Ct. 467, 471, 15 L.Ed.2d 391 (1966). Bankruptcy courts “deal in a summary way with ‘matters of an administrative character, including questions between the bankrupt and his creditors ... in the ordinary course of the administration of the bankrupt’s estate.’ ” Katchen v. Landy, 382 U.S. at 327, 86 S.Ct. at 471, quoting Taylor v. Voss, 271 U.S. 176, 181 (1926). The essence of equity is the power to do equity. It is a blend of what is fair and what is just. Flexibility, rather than rigidity, has distinguished it. “In equity, as nowhere else, courts ... look to the practical realities and necessities inescapably involved in reconciling competing interests ...” Lemon v. Kurtzman, 411 U.S. 192, 201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973). Giving “overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction,” is “enough to indicate why it would be inequitable” to deny Grant the preference which has been granted to him and to which he is entitled. Bank of Marin v. England, supra, 385 U.S. at 103, 87 S.Ct. at 277. Likewise, it would be, indeed, unjust to fail to allow Grant the priority, for it would be an unjust enrichment to the others having administrative expenses and other claims. Spring Construction Company, Inc. v. Harris, 614 F.2d 374, 378 (4th Cir.1980). A. Viewing the right to grant priority, and the action in granting it as an equitable matter, the Court turns to whether the failure to give notice" }, { "docid": "18557286", "title": "", "text": "a claim against the property as of the date of filing the case. As a matter of policy and constitutional law, this protection extends only to a creditor’s allowed secured claim and the unsecured portion of a claim will not be entitled to protection. ¶ 361.01 at 5. The amount of the allowed secured claim which must be provided adequate protection is determined in accordance with § 506(a) of the Code. See, e.g., In re BBT, 11 B.R. 224, 229 (Bkrtcy.D.Nev.1981). Section 506(a) provides in part that an allowed secured claim of a creditor secured by a lien on property in which the estate has an interest is a secured claim to the extent of the value of the creditor’s interest, and, to the extent that the value is less than the amount of the total allowed claim, the claim is unsecured. 11 U.S.C. § 506(a) (1980). . In Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973), Chief Justice Burger stated: “In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests.... Moreover, equitable remedies are a special blend of what is necessary, what is fair and what is workable.” Id. at 201. See also, In re Hotel Associates, Inc., 3 B.R. 343, 6 B.C.D. 160 (Bkrtcy.E.D.Pa.1980); In re Metro Stores Company, Inc., 4 B.C.D. 886 (Bankr.S.D.N.Y.1978). . The Bankruptcy Act of 1898 was repealed on October 1, 1979, P.L.No.95-598, 92 Stat. 2549 (1978). Section 364 of the Bankruptcy Code is derived from § 344 of the prior Act. Compare 11 U.S.C. § 364 (1980) with 11 U.S.C. § 744 (1978) (repealed). See note 7 supra. . Section 362(d) provides as follows: (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 (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" }, { "docid": "10212294", "title": "", "text": "Chittenden Trust Company at bay, suspended in mid-air, while they sit coyly by awaiting manna from heaven in the eternal hope that it will solve their self created financial difficulties. In sum, they are requesting this court to endow them with newly created rights. Even though § 105 does grant to the bankruptcy court broad powers to “issue any order, process, or judgment that is necessary to carry out the provisions of the Bankruptcy Code”, it does not empower this court to fashion substantive rights out of thin air. In Re Perry (Bankr.D.Maryland—1982) 25 B.R. 817, 821. And regardless of the context in which the issue arises, the courts have consistently refused to exercise the power under § 105 to create or increase substantive rights. Johnson v. First National Bank of Montevideo, Minn. 719 F.2d 270, 274 (8th Cir.1983) citing In Re Perry, supra; In Re Dunckle Associates, Inc. (Bankr.E.D.Pa.1982) 19 B.R. 481, 485. The court also considers the observation of Chief Justice Berger most appropriate when he said in Lemon v. Kurtzman 411 U.S. 192, 201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151: “In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests_ Moreover, equitable remedies are a special blend of what is necessary, what is fair and what is workable.” ORDER Upon the foregoing, IT IS ORDERED that all of the motions for stay under § 105(a) filed by Edwin F. Boitz and Robert C. Pacilli and by Trail End Lodge, Inc. d/b/a Sugarbush Associates Co., Elwyn F. Boitz and Robert C. Pacilli are hereby DENIED." }, { "docid": "10164863", "title": "", "text": "but a comparison of the financial statements dated January 1, 1980 and May 31, 1980, does not support this explanation. On the whole, debtor’s financial statements and Mr. Ruggiere’s sworn testimony concerning them, are confusing, contradictory, and unconvincing, particularly in light of the fact that the sum of $309,488.00 was transferred interest-free to unrelated corporations during a period which immediately preceded the filing of the instant Chapter 11 bankruptcy petition on July 21, 1980. Section 1104 of the Bankruptcy Reform Act, 11 U.S.C. § 1104, governs the appointment of a trustee in a chapter 11 case. Section 1104 provides: (a) At any time after the commencement of the case but before confirmation of a plan, on request of a party in interest, and after notice and a hearing, the court shall order the appointment of a trustee— (1) for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management, either before or after the commencement of the case, or similar cause, but not including the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holder of securities of the debtor or the amount of assets or liabilities of the debtor. As this court held in In re Hotel Associates, Inc., 3 B.R. 343, 6 B.C.D. 160 (E.D.Pa.1980), aff’d, No. 80-4444 (E.D.Pa. January 30, 1981), a determination as to whether to appoint a trustee compels the court to resort to its broad equity powers, and we noted that in equity “... [c]ourts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests.” Id., at 345, relying on Lemon v. Kurtzman, 411 U.S. 192, 200-201, 93 S.Ct. 1463, 1469-70, 36 L.Ed.2d 151 (1973). See also In re Parr, 1 B.R. 453, 5 B.C.D. 1143 (E.D.N.Y.1979). These equitable considerations are directly applicable to consideration of an appointment in the interests of creditors under" }, { "docid": "10164864", "title": "", "text": "of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holder of securities of the debtor or the amount of assets or liabilities of the debtor. As this court held in In re Hotel Associates, Inc., 3 B.R. 343, 6 B.C.D. 160 (E.D.Pa.1980), aff’d, No. 80-4444 (E.D.Pa. January 30, 1981), a determination as to whether to appoint a trustee compels the court to resort to its broad equity powers, and we noted that in equity “... [c]ourts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests.” Id., at 345, relying on Lemon v. Kurtzman, 411 U.S. 192, 200-201, 93 S.Ct. 1463, 1469-70, 36 L.Ed.2d 151 (1973). See also In re Parr, 1 B.R. 453, 5 B.C.D. 1143 (E.D.N.Y.1979). These equitable considerations are directly applicable to consideration of an appointment in the interests of creditors under § 1104(a)(2). Under an appointment for “cause” under § 1104(a)(1), the court’s discretionary powers are necessarily more circumscribed. See In re Anchorage Boat Sales, Inc., 4 B.R. 635, 6 B.C.D. 495 (E.D.N.Y.1980). The court must weigh the various considerations and competing interests carefully under either subsection of § 1104, because the appointment of a trustee is an extraordinary remedy. In re Hotel Associates, Inc., supra. In the instant case, we find that the debtor corporation, under the direction of its president and sole shareholder, has evidenced a sufficient degree of incompetence and gross mismanagement within the meaning of § 1104(a)(1) to justify the appointment of a trustee. The transmittal of more than $300,000 out of the debtor corporation, without interest, security, or a written instrument recording the debt, falls far short of any reasonable standard of business management. This commingling of assets occurred under the auspices of the current management of debtor and the fact that the events preceded the bankruptcy petition is not controlling because § 1104(a)(1) embraces activities “either before or after the" }, { "docid": "5259574", "title": "", "text": "to have left in effect a rent schedule which is the result of a defective decisionmaking process. In the Thompson case, therefore, we must decide not only whether reprocessing of rents charged in the past is necessary in order to allow restitution of any excess amounts paid, but also whether the current rent schedule must be reevaluated, using proper procedures for tenant participation, to ensure that tenants paying rents under that schedule will not be overcharged in the future. In reviewing the decisions of the District Court in these cases, we are mindful of the broad latitude an equity court has in shaping relief. The District Court must be upheld if its actions are reasonable in light of all the circumstances involved. As the Supreme Court stated in Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (“Lemon II’’): In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. . . . Moreover, . equitable remedies are a special blend of what is necessary, what is fair, and what is workable. . In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests . . . . • Id. at 200-01, 93 S.Ct. at 1469 (citations and footnotes omitted). Lemon I (Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)) had held unconstitutional, as a violation of the First Amendment’s Establishment Clause, a state statute which provided for reimbursement of nonpublic sectarian schools for certain secular educational services. Upon remand, the District Court enjoined payment under this statute for any services performed after the date of the decision in Lemon I, but permitted reimbursement for services provided prior to that date. In Lemon II, the Court upheld the District Court’s decree, emphasizing that the schools had incurred expenses in reliance on the statute and would suffer financial hardship if reimbursement were denied. 411 U.S. at 203-04, 93 S.Ct. 1463. The Court further noted that the schools’ reliance was reasonable and in good" }, { "docid": "22292849", "title": "", "text": "any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor. Because both the House Report and the Senate Report dealt with versions of Section 1104(a) that were not enacted into law, there is very little relevant legislative history on the section. Section 1104(a) as enacted, is a compromise between the Senate and the House version and opts for a “flexible standard for appointment of trustees.” In re Parr, 1 B.R. 453, 5 B.C.D. 1143 (E.D.N.Y.1979); 5 Collier on Bankruptcy (15th ed. 1979) 1104.01 at 1104-15. In determining whether the appointment of a trustee is in the best interest of creditors, a bankruptcy court must necessarily resort to its broad equity powers. In equity, as no where else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests. Lemon v. Kurtzman, 411 U.S. 192, 200-201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973); In re Parr, supra. Moreover, equitable remedies are a special blend of what is necessary, what is fair and what is workable. Id. The testimony at trial disclosed that shortly after the time the Fund became mortgagee-in-possession, it engaged Laven-thol and Horwath, an independent accounting firm to conduct an audit examination of the financial statements of the Drake Hotel. Based on the information available, Laventhol and Horwath concluded that the accounting system was totally inadequate to appropriately reflect the financial condition of the debtor. [N.T. 74]. Original records were not available to substantiate entries and the condition of the books and records were such that they were not conducive to the performance of an audit in accordance with generally accepted auditing principles. [N.T. 73-75]. The evidence also revealed that prior to the time the Fund became mortgagee-in-possession, the debtor did not maintain at The Drake Hotel the minimum operating procedures and controls which are absolutely essential to an adequate hotel operation. [N.T. 119-120]. Just recently, the debtor has filed a Proposed Plan of Reorganization with this court. The" }, { "docid": "22292848", "title": "", "text": "units to pay the indebtedness owing to the Fund within nine (9) months. Such payments were not forthcoming and the State Court vacated the stay. The Fund, for the third time, attempted to foreclose but was again stayed by the debtor’s filing of the present Chapter 11 petition. Section 1104 of the Bankruptcy Reform Act, 11 U.S.C. § 1104, governs the appointment of a trustee in a Chapter 11 case. Section 1104 provides: (a) At any time after the commencement of the case but before confirmation of a plan, on request of a party in interest, and after notice and a hearing, the court shall order the appointment of a trustee— (1) for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management, either before or after the commencement of the case, or similar cause, but not including the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor. Because both the House Report and the Senate Report dealt with versions of Section 1104(a) that were not enacted into law, there is very little relevant legislative history on the section. Section 1104(a) as enacted, is a compromise between the Senate and the House version and opts for a “flexible standard for appointment of trustees.” In re Parr, 1 B.R. 453, 5 B.C.D. 1143 (E.D.N.Y.1979); 5 Collier on Bankruptcy (15th ed. 1979) 1104.01 at 1104-15. In determining whether the appointment of a trustee is in the best interest of creditors, a bankruptcy court must necessarily resort to its broad equity powers. In equity, as no where else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests. Lemon v. Kurtzman, 411 U.S. 192, 200-201, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973); In re Parr," }, { "docid": "10792316", "title": "", "text": "101(a)(2) was aimed at preventing “union officials from using their disciplinary powers to silence criticism and punish those who dare to question and complain”. Salzhandler v. Caputo, 316 F.2d 445, 449 (2d Cir. 1963), cert. denied, 375 U.S. 946, 84 S. Ct. 344, 11 L.Ed.2d 275. Its broad terminology has never been used to require a union to prevent a union’s representative officials from taking action well within their delegated powers and will not be here. Finally, plaintiffs contend that defendants have denied them due process and freedom of speech and association and should be held liable under the Constitution of the United States. An identical claim was rejected by Judge Gourley of this Court in Litch v. USWA, 69 LRRM 2843 (W.D.Pa.1968), on the ground that without governmental participation in union activities, a cause of action cannot be stated against the USWA under the fifth or fourteenth amendments. I agree and hold that plaintiffs’ final contention is without merit. BALANCING THE EQUITIES There can be no question that “in shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. . . . Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair and what is workable. In equity as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities involved in reconciling competing interests . . .” Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151, 161-162 (1973) (Burger, C. J.) The exercise of equity jurisdiction does not grant the Court carte blanche to impose its views upon the parties. The District Court must look to the facts (here, for instance, to ascertain the existence of rules and regulations which govern relations between the parties) and the law, as discussed above, to ascertain whether clear guidelines exist for its action. Finding none, the Court is compelled to undertake the difficult task of balancing the equities, paying heed above all to the public interest which will be furthered or deterred by his ruling. The very" } ]

[ { "docid": "22663958", "title": "", "text": "1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee’s statutory representative. B. There are also some intensely practical considerations which foreclose pre-emption of judicial cognizance of fair representation duty suits, considerations which emerge from the intricate relationship between the duty of fair representation and the enforcement of collective bargaining contracts. For the fact is that the question of whether a union has breached its duty of fair representation will in many cases be a critical issue in a suit under L. M. R. A. § 301 charging an employer with a breach of contract. To illustrate, let us assume a collective bargaining agreement that limits discharges to those for good.cause and that contains no grievance, arbitration or other provisions purporting 'to restrict access to the courts. If an employee is discharged without cause, either the union or the employee may sue the employer under L. M. R. A. § 301. Under this section, courts have jurisdiction over suits to enforce collective bargaining agreements even though the conduct of the employer which is challenged as a breach of contract is also arguably an unfair labor practice within the jurisdiction of the NLRB. Garmon and like cases have no application to § 301 suits. Smith v. Evening News Assn., 371 U. S. 195. The rule is the same with regard to pre-emption where the bargaining agreement contains grievance and arbitration provisions which are intended to provide the exclusive remedy for breach of contract claims. If an employee is discharged without cause in violation of such an agreement, that the employer’s conduct may be an unfair labor practice does not preclude a suit by the union against the employer to compel arbitration of the employee’s grievance, the adjudication of the claim by the arbitrator, or a suit to enforce the-resulting arbitration award. See, e. g., Steelworkers v. American Mfg. Co., 363 U. S. 564. However, if the wrongfully discharged employee himself resorts to the courts before the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive" } ]

[ { "docid": "8583809", "title": "", "text": "his employer for breach of a collective bargaining agreement under this section regardless of whether the employee sues the employer, the union, or both. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). To state a claim under Section 301, employees who have exhausted the mandatory remedies provided under collective-bargaining agreements and who have received a final decision under the contract’s terms must allege that the decision is tainted by the union’s bad faith if they wish to bring suit against their employer. Huffman v. Westinghouse Elec. Corp., 752 F.2d 1221, 1223 (7th Cir.1985). “When an employer and a union are parties to a collective bargaining agreement which contains procedures for resolving employment disputes,” in order to maintain an actionable Section 301 claim against the employer, “an employee must establish that the union breached its duty of fair representation[.]” Filippo v. N. Ind. Pub. Serv. Corp., 141 F.3d 744, 748 (7th Cir.1998). Thus, proof of the union’s failure to fairly represent the plaintiff serves as an indispensable predicate or condition precedent to an employee’s Sec tion 301 suit against an employer. Thomas v. United Parcel Serv., Inc., 890 F.2d 909, 915 (7th Cir.1989). Before proceeding in federal court, Evans, as required, exhausted the grievance and arbitration remedies provided in the CBA and received what he considered an unfavorable outcome denying his reinstatement. Parties are bound by whatever grievance remedies they negotiate, Huffman, 752 F.2d at 1225 (citing General Drivers Union v. Riss, 372 U.S. 517, 519, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963)), and — subject to very limited judicial review — will be bound by the result according to the finality provisions of the agreement, DelCostello, 462 U.S. at 163-64, 103 S.Ct. 2281. Therefore, Evans’s claim is barred by the final adverse determination of his claim under the contractual grievance procedure he bargained for unless he shows that the Union violated its duty of fair representation or that the arbitration was a sham, substantially inadequate, or unavailable. See Hines, 424 U.S. at 570, 96 S.Ct. 1048. Here, Evans has not alleged" }, { "docid": "8583808", "title": "", "text": "a defendant and has failed to allege sufficient facts to prove the Union breached its duty of fair representation in handling Evans’s grievance. Specifically, USPS argues that in light of the binding arbitration finding, this suit is a hybrid action which can only succeed if Evans has a meritorious claim against both USPS and the union. In contrast, Evans argues that the Union is not a necessary party because this suit is a straightforward breach of contract claim. Section 301 of the LMRA provides a federal remedy for violations of collective bargaining agreements. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 561, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). It states: [s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). An individual employee may bring suit against his employer for breach of a collective bargaining agreement under this section regardless of whether the employee sues the employer, the union, or both. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). To state a claim under Section 301, employees who have exhausted the mandatory remedies provided under collective-bargaining agreements and who have received a final decision under the contract’s terms must allege that the decision is tainted by the union’s bad faith if they wish to bring suit against their employer. Huffman v. Westinghouse Elec. Corp., 752 F.2d 1221, 1223 (7th Cir.1985). “When an employer and a union are parties to a collective bargaining agreement which contains procedures for resolving employment disputes,” in order to maintain an actionable Section 301 claim against the employer, “an employee must establish that the union breached its duty of fair representation[.]” Filippo v. N. Ind. Pub. Serv. Corp., 141 F.3d 744, 748 (7th Cir.1998). Thus, proof of the union’s failure to fairly represent the plaintiff serves as an indispensable" }, { "docid": "10867494", "title": "", "text": "major accidents. The employee subsequently claimed that the union had breached its duty of fair representation, and claimed both § 301 and § 1337 as jurisdictional bases. The court rejected § 301 as a basis because, given the clarity of the collective bargaining agreement, the employee could not prove that the employer had breached it. Id. at 560-61. The court also rejected § 1337 as a basis because the cause of action was “a quintessential hybrid 301 claim,” in that it necessarily implicated the collective bargaining agreement. Id. at 561-62. The employee had alleged both that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement by firing him. The court stressed that “[i]f the essential nature of [the employee’s] complaint were overlooked, then future plaintiffs would be encouraged to adopt [his] approach and circumvent the [ ] rule simply by artfully pleading 28 U.S.C. § 1337 as a jurisdictional basis.” Id. at 562. Cf. Pratt v. United Auto., Aerospace and Agric. Implement Workers, Local 1135, 939 F.2d 385, 389-90 (6th Cir.1991) (explaining rule, and holding § 1337 confers jurisdiction where employee never alleged that employer breached the collective bargaining agreement). Here, the district court correctly held that no jurisdiction lies under § 1337. Vencl’s suit is a quintessential hybrid § 301 claim. Paralleling White, Vend alleges facts to support an inference that AHR violated the collective bargaining agreement by firing him over an accident. Indeed, Vend based his claim on § 301 before settling with AHR, his amended complaint continues to allege that AHR breached the collective bargaining agreement, and he initially filed a grievance under that agreement. The district court, however, should have exercised jurisdiction under § 301. Unlike the situation in White, the arbitrator in this case never reached the merits of Vencl’s grievance. . He dismissed the grievance solely because Local 18 requested arbitration too late. Therefore, Vend could have presented facts to establish that AHR breached the collective bargaining agreement, thereby satisfying the first element necessary for jurisdiction under § 301. Moreover, and contrary to the district court’s" }, { "docid": "18721519", "title": "", "text": "the Federal Fair Labor Standards Act.” Ill.Rev.Stat. ch. 48, 111004a(2)(F). Having decided whether the plaintiffs were commissioned employees under the federal statute, the judge had automatically decided their status under the state statute as well, and therefore no purpose would have been served by relinquishing jurisdiction to the state courts. Cf. Graf v. Elgin, Joliet & E. Ry., supra, 790 F.2d at 1348. The only other question is whether the judge erred in rejecting the plaintiffs’ claim under section 301 of the Taft-Hartley Act, 29 U.S.C. § 185. This section confers federal jurisdiction over suits for breach of collective bargaining agreements. But where, as is usually the case and was here, the agreement makes arbitration the exclusive remedy for resolving disputes, an employee can sue his employer for breach only if the employee has been unable to obtain relief through the grievance-arbitration procedure because the union has breached its duty to represent the members of the collective bargaining unit fairly. Vaca v. Sipes, 386 U.S. 171, 183-86, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967). The complaint in this case did not allege a breach of the duty of fair representation; and the defendants, in moving for summary judgment on the contract count, attached the affidavit of their director of personnel stating that the plaintiffs had never filed a grievance. If uncontradicted, this affidavit would have required the dismissal of the contract count even if the failure to plead a breach of the duty of fair representation was overlooked. The proof of such a breach is a prerequisite to maintaining a suit against the employer under section 301, and if a worker doesn’t even ask his union to press a grievance for him he can hardly complain that it has failed to represent him. (This is also, and equivalently, the requirement that the worker exhaust his union remedies before bringing suit. See id. at 184, 87 S.Ct. at 913-14.) The plaintiffs riposted, however, with an affidavit by plaintiff Mechmet which states that Grossman, the union griever, refused for years to take any steps to rectify the alleged violation. We shall" }, { "docid": "10867493", "title": "", "text": "employer.” See id. at 84, 110 S.Ct. at 435. In Breininger, for example, the employee alleged that the union represented him unfairly by refusing to refer him to potential employers. The union’s breach did not implicate a collective bargaining agreement. See id. at 71-72, 110 S.Ct. at 427-29. See also Storey v. Local 327, Int’l Brotherhood of Teamsters, 759 F.2d 517, 523 (6th Cir.1985) (holding that § 1337 provides the jurisdictional basis for fair representation suits where no collective bargaining agreement exists). Therefore, § 301 and § 1337 provide different jurisdictional bases depending on whether the controversy involves a breach of the. collective bargaining agreement in addition to a breach of the duty of fair representation. Where the union member produces a “colorable allegation” that the employer breached a collective bargaining agreement, however, jurisdiction lies under § 301, not § 1337. See White, 899 F.2d at 561. In White, the employee was fired over a major accident. The employee lost his grievance because an arbitrator found that the collective bargaining agreement clearly allowed discharge over major accidents. The employee subsequently claimed that the union had breached its duty of fair representation, and claimed both § 301 and § 1337 as jurisdictional bases. The court rejected § 301 as a basis because, given the clarity of the collective bargaining agreement, the employee could not prove that the employer had breached it. Id. at 560-61. The court also rejected § 1337 as a basis because the cause of action was “a quintessential hybrid 301 claim,” in that it necessarily implicated the collective bargaining agreement. Id. at 561-62. The employee had alleged both that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement by firing him. The court stressed that “[i]f the essential nature of [the employee’s] complaint were overlooked, then future plaintiffs would be encouraged to adopt [his] approach and circumvent the [ ] rule simply by artfully pleading 28 U.S.C. § 1337 as a jurisdictional basis.” Id. at 562. Cf. Pratt v. United Auto., Aerospace and Agric. Implement Workers, Local 1135, 939 F.2d" }, { "docid": "23176237", "title": "", "text": "(7th Cir.1990); Fed. R.Civ.P. 56(c). In reviewing this grant of summary judgment, we will view the facts in the light most favorable to the plaintiffs, the nonmoving party. A-Abart Elec. Supply Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1401-02 (7th Cir.1992). B. Relationship Between Contract Claim and Duty of Fair Representation Claims The plaintiffs claim that the Steelworkers Union breached its duty of fair representation in the negotiation, ratification and arbitration processes. This claim is brought under Section 301 of the Labor-Management Relations Act (“LMRA”). See 29 U.S.C.A. § 185. The plaintiffs’ claim against Schwitzer is also brought under Section 301 of the LMRA. See id. This claim is based on breach of the Collective Bargaining Agreement (“CBA”). Article 31 of the CBA, however, requires that employee grievances should be resolved through union/company meetings and that the final step in the grievance process should be binding arbitration. “Courts are not to usurp those functions which collective-bargaining contracts have properly ‘entrusted to the arbitration tribunal.’ ” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976) (citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1345, 4 L.Ed.2d 1403 (1960)). Accordingly, federal courts should review allegations that an employer breached a collective bargaining agreement that con tains an arbitration clause only when the employee can prove that “ ‘the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.’ ” Id. at 566, 96 S.Ct. at 1057 (citing Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967)). Therefore, in order to prevail against Schwitzer, the plaintiffs must show that the Steelworkers Union breached its duty to fairly represent the employees in the arbitration process, and it must show that Schwitzer breached the CBA. Because employees choose their bargaining representative, and because most collective agreements contain mechanisms for resolving employee grievances, courts should be reluctant to construe as a matter of law collective bargaining agreements when evaluating whether a union has violated its duty of fair" }, { "docid": "14845436", "title": "", "text": "against the company (Count I) and the union (Count II). Count I, which sought reinstatement and back pay, charged that the company had fired Graf for the sole and wrongful reason that Graf had sued it under the Federal Employers Liability Act, 45 U.S.C. §§ 51 et seq., for damages allegedly sustained as a result of the accident. Count II, which sought damages of $15,000, charged that the union had negligently failed to prosecute Graf’s grievance. This count originally named Evans as a codefendant but he has been dismissed from the case and Graf does not appeal the dismissal. The union removed the suit to federal district court and moved for summary judgment. The district judge granted the motion and dismissed Count II on the ground that the union had not breached its duty of fair representation. The judge then dismissed Count I on his own initiative because breach of the union’s duty is a precondition to maintaining a suit against the company. Graf’s state court complaint had not indicated under what law he was suing, and in removing the suit the union did not indicate why it thought Graf’s complaint was within the original jurisdiction of the federal district court. After removal Graf filed an amended complaint in the district court, but it was virtually identical to the original one and likewise did not indicate the legal basis for the suit. The district court never stated what it thought the basis of federal jurisdiction was either. There is a natural assumption, based on section 301 of the Taft-Hartley Act, 29 U.S.C. § 185, that all suits to enforce collective bargaining agreements (including suits by individual workers, see Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962)) are within the original jurisdiction of the federal district courts and hence removable under 28 U.S.C. § 1441 if filed in state court. And Graf’s state court complaint, at least if read very liberally, alleges that the union violated' its duty of representation under the collective bargaining agreement and that the company violated the agreement by firing" }, { "docid": "22566215", "title": "", "text": "is deemed to arise under section 301 of the Taft-Hartley Act (or under the Railway Labor Act, if the employer is governed by that act); and second, that this suit is of that character. Section 301 creates a remedy for breach of a collective bargaining agreement. If this suit is deemed to arise under section 301, it is a suit for such a breach. When as in this case the collective bargaining agreement establishes a grievance procedure for processing claims of breach, with arbitration if the grievance procedure does not produce a satisfactory result, and the union is cast in the role of representative of the aggrieved worker in the grievance and arbitration processes, the worker cannot prevail in his section 301 suit merely by showing that his grievance is a just one. That is, he cannot show just that the company violated the collective bargaining agreement. He must also show that by arbitrarily refusing to press his grievance the union violated its duty to represent all members of the bargaining unit fairly. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1563-64, 67 L.Ed.2d 732 (1981). No violation of the duty of fair representation is claimed here. All that the plaintiffs mean by calling the filing of a grievance “futile” is that they don’t think their claim rests on the collective bargaining agreement, and therefore — since the grievance procedure is limited to claims of breach of the agreement — a grievance is a claim of such breach — they don’t think they could possibly get anything by filing a grievance. But-in light of our first decision this is tantamount to a concession that the plaintiffs have no section 301 claim, since such a claim is necessarily founded on the collective bargaining agreement; the only jurisdiction conferred by section 301 is jurisdiction to enforce labor contracts. „ Concession or not; the failure to file a grievance within the thirty-day deadline fixed by the agreement extinguished the plaintiffs’ rights" }, { "docid": "17062774", "title": "", "text": "and initially pursued by local 526 in Bay City. It gradually advanced through the grievance machinery until the international union declined to pursue arbitration nearly two years later. After, the grievance against Allied failed, the plaintiffs filed this action claiming that Allied violated the collective bargaining agreement and that all three union defendants breached the duty of fair representation. Each defendant has now moved for summary judgment and attorney fees under Federal Rule of Civil Procedure 11. I. Plaintiffs’ claim under section 301 of the Labor Management Relations Act requires a breach of a collective bargaining agreement. Palnau v. Detroit Edison Co., 301 F.2d 702 (6th Cir.1962). The collective bargaining agreement states quite unambiguously that Allied had no. obligation to consider the plaintiffs for employment at the Niagara Falls plant until it was notified in writing by the union of their availability for work. There was no duty to look beyond the written list nor to notify the plaintiffs directly. Allied did give adequate notice to the U.A.W. of the openings. Therefore, Allied did not violate the collective bargaining agreement and is entitled to summary judgment. Likewise, none of the union defendants could have breached the duty of fair representation by failing to pursue contractual remedies for the violation and the unions are also entitled to summary judgment on the section 301 claim. II. Although outside the scope of section 301, there does exist a cause of action against a union for breach of the duty of fair representation even where there has been no breach of a collective bargaining agreement. Frenza v. Sheet Metal Workers, 567 F.Supp. 580, 587 (E.D.Mich.1983) citing In re Carter, 618 F.2d 1093 (5th Cir.1980). Such an action is not expressly plead by the plaintiffs but is fairly raised by and may be inferred from the facts alleged. It would be suitably plead through an amendment of plaintiffs’ complaint if, on its face, the amended claim would not be subject to dismissal. Banque de Depots v. National Bank of Detroit, 491 F.2d 753 (6th Cir.1974). Regarding a breach of the duty of fair representation by" }, { "docid": "22160042", "title": "", "text": "§ 185(a) (1982 ed.). We noted that where the union has control of the grievance and arbitration system, the employee-plaintiff’s failure to exhaust his contractual remedies may be excused if the union has wrongfully refused to process his claim and thus breached its duty of fair representation. See Vaca, 386 U. S., at 185-186. “[T]he wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as a bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” Id., at 186. Our reasoning in Vaca in no way implies, however, that a fair representation action requires a concomitant claim against an employer for breach of contract. Indeed, the earliest fair representation suits involved claims against unions for breach of the duty in negotiating a collective-bargaining agreement, a context in which no breach-of-contract action against an employer is possible. See Ford Motor Co. v. Huffman, 345 U. S. 330 (1953); Steele v. Louisville & Nashville R. Co., 323 U. S. 192 (1944). Even after a collective-bargaining agreement has been signed, we have never required a fair representation plaintiff to allege that his employer breached the agreement in order to prevail. See, e. g., Communications Workers v. Beck, 487 U. S., at 743; Czosek v. O’Mara, 397 U. S. 25, 29 (1970). “[A]n action seeking damages for injury inflicted by a breach of a union’s duty of fair representation [is] judicially cognizable in any event, that is, even if the conduct complained of [is] arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit [is] bottomed on a collective agreement.” Motor Coach Employees v. Lockridge, supra, at 299 (emphasis added). Respondent argues that the concern in Vaca that suits against the employer and union be heard together in the same forum is applicable to the hiring hall situation, because any action by petitioner against an employer would be premised not on § 301 but rather on the contention that the" }, { "docid": "12445378", "title": "", "text": "CUMMINGS, Circuit Judge. In this class action, plaintiffs sought damages resulting from defendant’s alleged breach of the collective bargaining contract between it and the Union. Jurisdiction was asserted under Section 301(a) of the Taft-Hartley Act (29 U. S.C. § 185(a)). Commencing in June 1969, defendant, a bricklaying and masonry contractor, employed plaintiffs to do construction work at a Chicago plant of the United States Steel Corporation. Plaintiffs principally claim that in violation of the collective bargaining contract between their Union and defendant, they were deprived of overtime pay, underpaid during straight time, discriminated against in hiring, and deprived of work on certain days. In four counts of the amended complaint, plaintiffs advance variant theories for their ability to maintain a court action despite the existence of a contractual grievance-arbitration remedy which has not been utilized. In Count I, plaintiffs assert that they “presented the grievances enumerated herein to the Union in every possible manner in an attempt to have the Union process them through arbitration * * *.” Count II contains the allegation that the “ ‘Disputes’ clause mandatorily requires the Union to process to settlement or arbitration any grievance,” but the Union “failed to process the grievances in violation of its contractual duty and said violation was in breach of its statutory duty of fair representation.” In Count III, plaintiffs allege that “[t]he ‘Disputes’ clause * * * was not meant to be nor does it purport to be the exclusive remedy, or one that must first be exhausted, before an employee may pursue other means of redress,” so that “resort to this Court irrespective of whether or not grievance procedures were otherwise pursued is permissible.” Count IV alleges that “the defendant and the Union arranged and conspired to illegally ignore the Joint Agreement” and that “this collusion constituted a breach of the Union’s statutory duty of fair representation.” The district court granted the defendant’s motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted, and filed a memorandum opinion reported at 325 F.Supp. 1220. The court held that the disputes" }, { "docid": "8921292", "title": "", "text": "first place. This conclusion is especially pertinent in the field of express courier services. Accordingly, Camporeale’s claims of discrimination based on disability under the HRL must be dismissed as a matter of law against both Airborne and Local 295. c.) The LMRA Claims Against Airborne and Local 295: Camporeale next claims that Local 295 breached its duty of fair representation by not proceeding to a Step 3 arbitration, and also that Airborne breached the collective bargaining agreement with Local 295 by terminating Camporeale. The Court’s jurisdiction with regard to both of these claims is predicated on section 301 of the LMRA, which confers district courts with jurisdiction over suits alleging violations of collective bargaining agreements between unions and employers, without regard to the amount in controversy. (See 29 U.S.C. § 185.) It is settled that an employee may maintain a breach of contract action directly against the employer based upon a collective bargaining agreement, “provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). This is so because failure to prove the union’s breach of fair representation gives rise to the employer’s successful defense of failure to exhaust contractual remedies. (Id. at 183-85, 87 S.Ct. at 913-14.) Thus, when faced with an action such as this where the employee sues both the union and employer based upon breach of the collective bargaining agreement, the first step in the analysis must be whether the union breached its duty of fair representation. If it is shown that the union fairly represented the employee throughout the grievance and in accordance with the terms of the collective bargaining agreement, then the claim against the employer for breach of the agreement necessarily falls. Cf. Capobianco v. Brink’s Inc., 543 F.Supp. 971, 975 n. 3 (E.D.N.Y.1982) (where facts show “employee was fairly represented by his union, the subsidiary claim under § 301 for relief from the arbitration award necessarily falls”), aff'd mem., 722 F.2d 727 (2d Cir.1983)." }, { "docid": "22165337", "title": "", "text": "court erred in entering summary judgment against them on their “hybrid” claim against USX for breach of contract under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. As the Supreme Court explained in DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983), an individual employee may bring suit against his employer for breach of a collective-bargaining agreement. Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement.... [H]owever, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation .... The employee may, if he chooses, sue one defendant and not the other, but the case he must prove is the same whether he sues one, the other, or both. (internal citations and quotation omitted). The plaintiffs argue that, [b]ecause the [Fairfield Works] Agreement is void and unenforceable, USX breached its contractual obligations when USX did not pay members of plaintiff class the full compensation which they should have been paid (from 1984 to date) based on the 1983 Basic Labor Agreement, the 1987 Basic Labor Agreement, and prior practices, without regard to the [Fairfield Works] Agreement. (The Basic Labor Agreement, between USX and the Internationa], governs all of USX’s plants in Canada' and the United States, in the absence of local agreements.) The district court rejected the claim on the same ground on which it rejected the RICO claim — that “the court can find" }, { "docid": "18721518", "title": "", "text": "The district court dismissed the latter two counts also on the defendants’ motion for summary judgment. Although other counts, and a counterclaim, remain pending in the district court, they involve additional parties; so the district court was authorized to enter final judgment on the counts he dismissed under Fed.R.Civ.P. 54(b), and he did so. The dismissal of the state-law count on the merits may seem improper, because when all the federal claims fall out before trial the judge should relinquish jurisdiction over any pendent state law claims (the state law claim in this case was pendent) rather than deciding their merits. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). But like all legal principles, this one mustn’t be, and hasn’t been, see, e.g., Graf v. Elgin, Joliet & E. Ry., 790 F.2d 1341, 1346-48 (7th Cir.1986), pushed to an absurd extreme. Illinois’ counterpart to the Fair Labor Standards Act excepts from its overtime provisions “any commissioned employee as described in paragraph (i) of Section 7 of the Federal Fair Labor Standards Act.” Ill.Rev.Stat. ch. 48, 111004a(2)(F). Having decided whether the plaintiffs were commissioned employees under the federal statute, the judge had automatically decided their status under the state statute as well, and therefore no purpose would have been served by relinquishing jurisdiction to the state courts. Cf. Graf v. Elgin, Joliet & E. Ry., supra, 790 F.2d at 1348. The only other question is whether the judge erred in rejecting the plaintiffs’ claim under section 301 of the Taft-Hartley Act, 29 U.S.C. § 185. This section confers federal jurisdiction over suits for breach of collective bargaining agreements. But where, as is usually the case and was here, the agreement makes arbitration the exclusive remedy for resolving disputes, an employee can sue his employer for breach only if the employee has been unable to obtain relief through the grievance-arbitration procedure because the union has breached its duty to represent the members of the collective bargaining unit fairly. Vaca v. Sipes, 386 U.S. 171, 183-86, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967)." }, { "docid": "23566118", "title": "", "text": "the union presenting the grievance has breached its duty of fair representation, Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), and that section 301 of the Labor Management Relations Act may provide the jurisdictional basis for employee suits against employers and labor organizations. That section provides that “[sjuits for violation of contracts between an employer and a labor organization representing employees . . . may be brought in any district court . . .” 29 U.S.C. § 185(a). The prerequisite for jurisdiction is a contract between an employer and a labor organization. Smith v. Evening News Ass’n, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). However, § 301 creates federal jurisdiction only over parties to the contract, and federal jurisdiction under § 301 is limited to “[sjuits for violation of contracts between an employer and a labor organization . . . 29 U.S.C. § 185. Thus in Aacon Contracting Co. v. Ass’n of Catholic Trade Unionists, 178 F.Supp. 129 (E.D.N.Y.1959), claiming that the defendant union attempted to compel plaintiff to breach a collective bargaining agreement it had with another union, plaintiff attempted to assert federal jurisdiction over the dispute even though there was no contractual relationship between plaintiff and defendant. The complaint was dismissed and the Second Circuit affirmed, 276 F.2d 958 (2d Cir. 1960), on the opinion of the trial judge: “The language of the statute is explicit. It specifically refers to suits for violation of contracts between an employer and a labor organization. In this case there is no contractual relationship between the parties.” 178 F.Supp. at 130. While clearly this does not prevent Sever, as an individual member of a signatory union from claiming under § 301, Smith v. Evening News Ass’n, supra, 371 U.S. at 200, 83 S.Ct. 267, he may only bring suit against the parties signatory to the agreement, and here the Eastern Conference is not a party. The Eastern Conference is not a party to any collective bargaining agreement and represents no employees directly; it has never been a party to" }, { "docid": "18721520", "title": "", "text": "The complaint in this case did not allege a breach of the duty of fair representation; and the defendants, in moving for summary judgment on the contract count, attached the affidavit of their director of personnel stating that the plaintiffs had never filed a grievance. If uncontradicted, this affidavit would have required the dismissal of the contract count even if the failure to plead a breach of the duty of fair representation was overlooked. The proof of such a breach is a prerequisite to maintaining a suit against the employer under section 301, and if a worker doesn’t even ask his union to press a grievance for him he can hardly complain that it has failed to represent him. (This is also, and equivalently, the requirement that the worker exhaust his union remedies before bringing suit. See id. at 184, 87 S.Ct. at 913-14.) The plaintiffs riposted, however, with an affidavit by plaintiff Mechmet which states that Grossman, the union griever, refused for years to take any steps to rectify the alleged violation. We shall assume without having to decide that this submission rectified the plaintiffs’ oversight in pleading. Cf. Fed.R.Civ.P. 15(b). The collective bargaining agreement provides that employees who work more than 40 hours a week shall receive overtime pay at the rate of time and a half. The agreement also requires that an 18 percent service charge be added to all banquet charges and the receipts from it be divided up among the banquet workers. These provisions go back to 1975 but apparently have not been interpreted (except by the plaintiffs) to entitle the banquet waiters to time and a half when they work more than 40 hours a week. One reason may be that the 40 hours are a construct rather than a measure of time actually worked. They are computed by assigning an artificial amount of time to each function performed in a banquet (e.g., 2 hours for setting up, 4 hours for dinner, and 2 hours for cleaning up), even if it doesn’t take so long to perform the function for a particular banquet. The" }, { "docid": "9895935", "title": "", "text": "J., concurring in part and dissenting in part). Schwerman’s final two contentions are that the employees’ complaint failed to state a claim for relief, and that the district court committed reversible error in sua sponte enforcing the arbitrator’s award without holding a trial. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Here, the employees alleged that Schwerman breached the collective bargaining agreement’s provision on employee wages; that they objected to this breach; that the Union and Schwerman submitted the matter to arbitration; that the arbitrator sustained the employees’ grievances; that Schwerman refused to comply with the arbitrator’s decision; and that the Union did not enforce the arbitrator’s decision, breaching its duty of fair representation. Because these allegations, if proven, state a claim against Schwerman, see, e.g., Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903,17 L.Ed.2d 842 (1967), we conclude that the district court properly denied Schwerman’s motion to dismiss for failure to state a claim for relief. The district court erred, however, in summarily disposing of the case because a factual issue remained as to one element of the employees’ claim—whether the Union breached its duty of fair representation. As the courts have made clear, when an employee sues his employer under section 301 for breach of uniquely personal rights created by a collective bargaining agreement, after the employer has settled the controversy with the employee’s union representative pursuant to binding grievance procedures in the collective bargaining agreement, the employee is “required in some way to show that the Union’s duty to represent him fairly ... [has] been breached before he [is] entitled to reach the merits of his contract claim.” United Parcel Services, Inc. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1564, 67 L.Ed.2d 732 (1981); accord," }, { "docid": "22160041", "title": "", "text": "created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union’s duty of fair representation”). We therefore decline to interpret the state-law pre-emption cases as establishing a principle that hiring halls are somehow so different from other union activities that fair representation claims are not cognizable outside of the NLRB. The Court of Appeals below also held that if an employee fails to allege that his employer breached the collective-bargaining agreement, then he cannot prevail in a fair representation suit against his union. See 849 F. 2d, at 999. This is a misstatement of existing law. In Vaca, we identified an “intensely practical consideration],” 386 U. S., at 183, of having the same entity adjudicate a joint claim against both the employer and the union when a wrongfully discharged employee who has not obtained relief through any exclusive grievance and arbitration procedures provided in the collective-bargaining agreement brings a breach-of-contract action against the employer pursuant to § 301(a) of the LMRA, 61 Stat. 156, 29 U. S. C. § 185(a) (1982 ed.). We noted that where the union has control of the grievance and arbitration system, the employee-plaintiff’s failure to exhaust his contractual remedies may be excused if the union has wrongfully refused to process his claim and thus breached its duty of fair representation. See Vaca, 386 U. S., at 185-186. “[T]he wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as a bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” Id., at 186. Our reasoning in Vaca in no way implies, however, that a fair representation action requires a concomitant claim against an employer for breach of contract. Indeed, the earliest fair representation suits involved claims against unions for breach of the duty in negotiating a collective-bargaining agreement, a context in which no breach-of-contract action against an employer is possible. See Ford Motor Co. v. Huffman, 345 U. S. 330 (1953);" }, { "docid": "22186597", "title": "", "text": "the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach of contract suit under § 301, ... but a hybrid § 301/fair representation claim, amounting to a direct challenge to the private settlement of disputes under [the collective-bargaining agreement]” (citations and internal quotations omitted)); see Vaca, supra, 386 U.S. at 185-86, 87 S.Ct. 903 (“We think that another situation when the employee may seek judicial enforcement of his contractual rights arises, if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiffs benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice”). Here, the governing CBAs establish mandatory grievance procedures that must be followed by employees asserting a violation of the terms of the agreements. It is undisputed that Soremekun did not exhaust these contractual procedures; no official grievance form was filed, no formal grievance meeting was held, and no arbitration proceeding was initiated. So-remekun contends, however, that his failure to exhaust contractual remedies must be excused because the Union never gave him a copy of the CBAs, neglected to advise him of the need to file an official grievance form, and arbitrarily dismissed his complaints in violation of its duty of fair representation. These allegations regarding the Union, however, do not appear in Soremekcun’s first amended complaint. Having failed to include the allegations in his complaint, Soremekun cannot" }, { "docid": "7041915", "title": "", "text": "provisions for the arbitration of a union member’s grievances against his employer and require the union member to pursue grievances through the arbitral channels established in the agreement. When the union bound by an arbitration clause, however, refuses to process the member’s grievance, and this failure is due to the union’s intentional misconduct, Hoffman v. Lonza, Inc., 658 F.2d 519, 521 (7th Cir.1981), then the union member has a cognizable claim for breach of the union’s duty of fair representation. The aggrieved union member may then pursue both claims — the claim for breach of the duty of fair representation against the union, and a § 301 claim for breach of the employer’s contractual obligations under the collective bargaining agreement. Thomas, 890 F.2d at 916-917. Because the courts have required that union members bring hybrid suits if they wish to sue their employers under § 301, Local 597 apparently thinks that the obligation to bring a hybrid fair-representation suit runs in both directions. This is simply not the case. In Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 110 S.Ct. 424, 107 L.Ed.2d 388, the Supreme Court held that an employee who alleged that his union breached its duty of fair representation in intentionally failing to refer him for jobs through the union hiring hall did not have to sue the employer under § 301 in order to press his claim against the union. 493 U.S. at 80-83, 110 S.Ct. at 433-34. The Court explained that a suit against the employer is not a prerequisite to a suit against the union: While in Vaca an allegation that the union had breached its duty of fair representation was a necessary component of the § 301 claim against the employer, the converse is not true here: a suit against the union need not be accompanied by an allegation that an employer breached the contract, since whatever the employer’s liability, the employee would still retain a [fair representation] claim against the union. Id. at 82-83, 110 S.Ct. at 434. Where the union has thus assumed contractual duties" } ]

[ { "docid": "6467362", "title": "", "text": "matters of that nature, so that the payments inured to the direct benefit of the bondholders, that such a claim may be preferred to those of the holders of the bonds 'secured by the mortgage. And even then it can be preferred only to the extent of the diversion. As there was no such diversion in the case in hand, the claim of the intervener was inferior in equity to those of the bondholders. Gregg v. Metropolitan Trust Co., 197 U. S. 183, 190, 25 Sup. Ct. 415, 49 L. Ed. 717; Carbon Fuel Co. v. Chicago, C. & L. R. Co., 202 Fed. 172, 174, 120 C. C. A. 460. The expectation of the intervener that its claim would be paid out of the current earnings of the Railway Company is not sufficient to take it from the class of general claims and place it in the class of preferential claims. If such an expectation were sufficient for this purpose, liens of prior mortgages upon railroads ‘would be idle, for nearly all general creditors undoubtedly expect payment out of the current incomes of the companies. Even loans of money to pay current expenses, or to keep a railroad company a going concern, in reliance upon and in expectation of payment out of the current' earnings of the railway company, are ineffectual to transfer claims for their payment, otherwise without equitable preference, to the class of preferential claims. Morgan’s Co. v. Texas Central Railway, 137 U. S. 171, 196, 197, 198, 199, 11 Sup. Ct. 61, 34 L. Ed. 625; United States Trust Co. v. Western Contract Co., 81 Fed. 454, 463, 26 C. C. A. 472, 481; Contracting & Building Co. v. Continental Trust Co., 108 Fed. 1, 4, 47 C. C. A. 143, 146. The order below was right, and it is affirmed." } ]

[ { "docid": "18757309", "title": "", "text": "receiverships; under § 77 the ICC acquired a principal role in reorganizations but the principles of the common law continued to govern most relations among creditors. The rules for equity re-ceiverships permitted courts to enhance the priority of debts incurred as operating expenses within the six months prior to insolvency or necessary to the continued operation of the debtor. See Miltenberger, 106 U.S. at 311, 1 S.Ct. at 162. Courts applied these principles, without extended discussion, to interline balances. E.g., Gregg v. Metropolitan Trust Co., 197 U.S. 183, 25 S.Ct. 415, 49 L.Ed. 717 (1905); Southern Ry. v. Flournoy, 301 F.2d 847, 850-58 (4th Cir.1962); Southern Ry. v. United States, 306 F.2d 119 (5th Cir.1962); In re Tennessee Central Ry., 316 F.Supp. 1103, 1110-12 (M.D.Tenn.1970), vacated on other grounds, 463 F.2d 73 (6th Cir.1972). This approach assumed that interline balances are general, unsecured debts. Not until 1967 did any interline creditor argue that the balances are “trust funds” or otherwise entitled to priority exceeding that available to other operating expenses. In re Central Railroad Co. of New Jersey, 273 F.Supp. 282, 288 (D.N.J.1967), affirmed by adoption, 392 F.2d 589 (3d Cir.1968), brusquely replied: “That they are not trust funds is clear. The relationship among the several carriers engaged in an interline freight movement is that of debtor and creditor.” The Third Circuit took a different path in its en banc decision of 1972. It distinguished among kinds of interline balances. Those for freight and passenger transportation, it concluded, are collected by one carrier and held in trust for others. 486 F.2d at 523-27. (We discuss in Part V the court's grounds for this conclusion.) Other interline balances — per diem car charges (rental of one line’s cars being used by another pending their return), switching charges, and several other categories — the court thought were general unsecured debts, largely because the debtor did not collect a specific charge from customers for these balances and so did not generate a fund. Id. at 527-29. The trust funds for pre-bankruptcy balances must be turned over immediately, the court held, regardless of the" }, { "docid": "3620369", "title": "", "text": "by evidence that there had been a diversion to the benefit of the mortgagee of net earnings after deducting such current expenses. As a general proposition, I understand this to be a correct exposition of the law as applied in this jurisdiction. Illinois Trust & Savings Bank v. Doud et al., 105 Fed. 123, 44 C. C. A. 389, 52 L. R. A. 481; Atlantic Trust Co. et al. v. Dana et al., 128 Fed. 209, 62 C. C. A. 657; Kansas Loan & Trust Co. v. Electric Railway Co. (C. C.) 108 Fed. 702. This ruling is supported by both the weight of authority and reason. Rhode Island Locomotive Works v. Continental Trust Co., 108 Fed. 5, 47 C. C. A. 147; Lackawanna Iron & Coal Co. v. Farmers’ Loan & Trust Co., 176 U. S. 298, 20 Sup. Ct. 363, 44 L. Ed. 475; International Trust Co. v. Townsend Brick & C. Co., 95 Fed. 850, 57 C. C. A. 396; Gregg v. Mercantile Trust Co., 109 Fed. 220, 48 C. C. A. 318; Gregg v. Metropolitan Trust Co., 124 Fed. 721, 59 C. C. A. 637, affirmed in 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717; Niles Tool Works Co. v. Louisville, N. A. & C. Ry. Co., 112 Fed. 561, 50 C. C. A. 390; Wood v. Guaranty Trust Co., 128 U. S. 416, 9 Sup. Ct. 131, 32 L. Ed. 472; Cutting v. Tavares, O. & A. R. Co., 61 Fed. 150, 156, 9 C. C. A. 401; Hunt v. Memphis Gaslight Co., 95 Tenn. 143, 144, 31 S. W. 1006; Mersick v. Hartford, etc., Ry. Co. (Conn.) 55 Atl. 664, 668, 669, 100 Am. St. Rep. 977. It may be conceded that there are expressions in opinions of the Justices of the Supreme Court that certain exceptions should be made, under special circumstances, to the general rule requiring proof of such diversion. It may also be conceded that exceptions at-times have been, and doubtless should have been, made, ex necessitate, in cases of imperious business necessities, such, for instance, as" }, { "docid": "15683657", "title": "", "text": "1184 (C. C. A. 8); Beers v. Equitable Trust Co., 286 F. 878 (C. C. A. 8); Mountain States Power Co. v. A. L. Jordan Lumber Co., 293 F. 502 (C. C. A. 9); Habirshaw Elec. Cable Co. v. Habirshaw Elec. Cable Co, 296 F. 875, 43 A. L. R. 1035 (C. C. A. 2); Palmer v. Bankers’ Trust Co., 12 F.(2d) 747 (C. C. A. 8); Jameson v. Guaranty Trust Co., 20 F.(2d) 808 (C. C. A. 7); Kansas City Terminal R. Co. v. Central Union Trust Co., 28 F.(2d) 177 (C. C. A. 8); In re Alamac Operating Corporation, 42 F.(2d) 120 (C. C. A. 2); Speers, Sand & Clay Works v. American Trust Co., 52 F.(2d) 831 (C. C. A. 4); Bethlehem Steel Co. v. International Combustion Eng. Corporation, 66 F.(2d) 409 (C. C. A. 2) ; Guaranty Trust Co. v. Missouri Pac. R. Co, 238 F. 812 (D. C. E. D. Mo.); St. Louis-San Francisco R. Co. v. McElvain, 253 F. 123 (D. C. E. D. Mo.) ; Guaranty Trust Co. v. Chicago, etc, R. Co., 15 F.(2d) 434 (D. C. N. D. Ill.) ; American S. S. Co. v. Wickwire Spencer Steel Co., 42 F.(2d) 886 (D. C. W. D. N. Y.) affirmed 49 F.(2d) 766 (C. C. A. 2) — also numerous unreported opinions or forms of decrees, among which are Guaranty Trust Co. v. International Typesetting Co. (S. D. N. Y. Feb. 19, 1916); Amer. Steel Foundries v. Chicago, R. I. & P. Ry. Co. (N. D. Ill. June 12, 1917) ; Railway Steel Spring Co. v. Chicago & E. I. R. Co. (N. D. Ill. May 3, 1921) ; and In re Bijur Motor Lighting Co. (by Judge Man-ton sitting in a New York District). The matter involved in this immediate issue is the value of appellant’s interests as a dissenter — this value being its proportion of the entire value. If there had been no reorganization, this entire value would be what ■ was realized at an open fair foreclosure sale. Considering the character and extent of this property as shown" }, { "docid": "18757308", "title": "", "text": "rights; federal law, too, may supply these rights, and the pervasive federal regulation of the rail business requires us to scrutinize federal law with some care. The survey is animated, however, by the principle that we are looking for legal entitlements rather than for the arrangements that seem to us best. We start with the question whether the Bankruptcy Code settles the subject. The trustee says that it does, in his favor. Since the trustee believes that the 1978 Code disposes of the subject by not discussing it, the appreciation of the argument requires a bit of background. Railroads have been turning belly up with great frequency ever since Stephenson’s “Rocket”. Interline operations have been common since the founding of American roads, so the treatment of interline balances also is an old subject. See Miltenberger v. Logansport Ry., 106 U.S. (16 Otto) 286, 293, 1 S.Ct. 140, 146, 27 L.Ed. 117 (1882). Until 1933, when Congress added § 77 to the old Code, 11 U.S.C. § 205 (1976), all railroad bankruptcies were handled as equity receiverships; under § 77 the ICC acquired a principal role in reorganizations but the principles of the common law continued to govern most relations among creditors. The rules for equity re-ceiverships permitted courts to enhance the priority of debts incurred as operating expenses within the six months prior to insolvency or necessary to the continued operation of the debtor. See Miltenberger, 106 U.S. at 311, 1 S.Ct. at 162. Courts applied these principles, without extended discussion, to interline balances. E.g., Gregg v. Metropolitan Trust Co., 197 U.S. 183, 25 S.Ct. 415, 49 L.Ed. 717 (1905); Southern Ry. v. Flournoy, 301 F.2d 847, 850-58 (4th Cir.1962); Southern Ry. v. United States, 306 F.2d 119 (5th Cir.1962); In re Tennessee Central Ry., 316 F.Supp. 1103, 1110-12 (M.D.Tenn.1970), vacated on other grounds, 463 F.2d 73 (6th Cir.1972). This approach assumed that interline balances are general, unsecured debts. Not until 1967 did any interline creditor argue that the balances are “trust funds” or otherwise entitled to priority exceeding that available to other operating expenses. In re Central Railroad Co." }, { "docid": "3620370", "title": "", "text": "318; Gregg v. Metropolitan Trust Co., 124 Fed. 721, 59 C. C. A. 637, affirmed in 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717; Niles Tool Works Co. v. Louisville, N. A. & C. Ry. Co., 112 Fed. 561, 50 C. C. A. 390; Wood v. Guaranty Trust Co., 128 U. S. 416, 9 Sup. Ct. 131, 32 L. Ed. 472; Cutting v. Tavares, O. & A. R. Co., 61 Fed. 150, 156, 9 C. C. A. 401; Hunt v. Memphis Gaslight Co., 95 Tenn. 143, 144, 31 S. W. 1006; Mersick v. Hartford, etc., Ry. Co. (Conn.) 55 Atl. 664, 668, 669, 100 Am. St. Rep. 977. It may be conceded that there are expressions in opinions of the Justices of the Supreme Court that certain exceptions should be made, under special circumstances, to the general rule requiring proof of such diversion. It may also be conceded that exceptions at-times have been, and doubtless should have been, made, ex necessitate, in cases of imperious business necessities, such, for instance, as the payment of balances on traffic arrangements between the bankrupt: and another road, to prevent disruption of the traffic, to the serious detriment of operating the business under the receivership; also, in case of seizure under prior attachment or execution against the bankrupt road, where, good judgment would authorize the court to direct the payment of the lien, or where the necessity of continuing a supply contract is supreme, and its continuance should be conditioned upon paying antecedent claims under the contract, and the like. But no such contingency or administrative policy is presented in the instance of any claim in this, record. There are some other settled rules of law applicable to nearly all of the intervening claims which may here be stated: (1) The fact that the court, in the order appointing the receiver, may have directed that preferential claims, for supplies and materials be paid out of the proceeds of the sale or the corpus of the property in the hands of the purchaser does not control the right of the purchaser" }, { "docid": "23275420", "title": "", "text": "28 U.S.C.A. § 811. National Bank of the Commonwealth v. Mechanics National Bank, 94 U.S. 437, 24 L.Ed. 176; Fowler v. Redfield, Fed.Cas.No.5003; Griffith v. Baltimore & O. R. Co., C.C., 44 F. 574; Id., 159 U.S. 603, 16 S.Ct. 105, 40 L.Ed. 274; Leitch v. Chesapeake & Ohio R. Co., 97 W.Va. 498, 125 S.E. 370. National Bank of the Commonwealth v. Mechanics National Bank, 94 U.S. 437, 24 L.Ed. 176; Fowler v. Redfield, Fed.Cas.No.5003; Griffith v. Baltimore & O. R. Co., C.C., 44 F. 574; Id., 159 U.S. 603, 16 S.Ct. 105, 40 L.Ed. 274; Leitch v. Chesapeake & Ohio R. Co., 97 W.Va. 498, 125 S.E. 370. Louisiana Act 206 of 1916. Guardian, etc., v. Central Glass Co., 5 Cir., 194 F. 851; B. J. Wolf & Sons v. Royal Ins. Co., 5 Cir., 194 F. 853. Massachusetts Benefit Ass’n v. Miles, 137 U.S. 689, 691, 11 S.Ct. 234, 34 L.Ed. 834. Cf. Quebec S. S. Co. v. Merchant, 133 U.S. 375, 376, 10 S.Ct. 397, 33 L.Ed. 656. Massachusetts Benefit Ass’n v. Miles, supra. Holden v. Trust Co., 100 U.S. 72, 25 L.Ed. 567; Town of Ohio v. Frank, 103 U.S. 697, 26 L.Ed. 531; Washington, etc., R. Co. v. Harmon, 147 U.S. 571, 13 S.Ct. 557, 37 L.Ed. 284; Demotte v. Whybrow, 2 Cir., 263 F. 366; United States v. Skinner & Eddy Corp., D.C., 28 F.2d 373; 44 Harvard Law Review 105. Sec. 966 of the Revised Statutes of the United States, 28 U.S.C.A. § 811. Act 206 of the Louisiana Law of 1916. 2nd Employers’ Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U.S. 1, 58, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44. See also 223 U.S. at page 59, 32 S.Ct. at page 179, 56 L.Ed. 327, 38 L.R.A.,N.S., 44, where the court said: “We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion.” Klaxon Co. v. Stentor Co., 313" }, { "docid": "7424304", "title": "", "text": "Co. v. Fidelity Trust Co., 9 Cir., 238 F. 693; Pennsylvania Steel Co. v. New York City Ry. Co., 2 Cir., 216 F. 458, 471. The mortgaged property can be subjected to such claims only to the extent that income has been diverted from their payment to the benefit of mortgaged creditors, which does not here appear. Guaranty Trust Co. v. Albia Coal Co., 8 Cir., 36 F.2d 34. The Commission made no deduction for local real estate taxes, which are a charge against the mortgaged property. Federal income taxes, and other taxes enforceable in personam, are entitled to priority over unsecured claims, even if also enforceable against mortgaged assets. First National Bank v. Proctor, 1 Cir., 40 F.2d 841; Fidelity & Casualty Co. v. Massachusetts Mutual Life Ins. Co., 4 Cir., 74 F.2d 881. Cf. Ormsbee v. United States, D.C., 23 F.2d 926. The total sum of these deductions was quite fair to secured creditors, as it does not include an, additional $40,269 income tax liability asserted against the company, which liability has now been settled by payment of approximately $29,-000, according to counsel’s statement at the argument, though this is not formally in evidence. Nor does it include anything for expenses in this reorganization. Pursuant to the company’s requirements, its customers have made cash deposits for meter installations, extension of mains, etc., aggregating $99,665. These depositors are entitled to repayment thereof when service is discontinued, or at some other fixed time. While perhaps not in all respects a technical trust fund, these claims are clearly entitled to priority of payment out of free assets as against unsecured creditors. As the value of the company’s total assets ($2,625,000) is less than the amount of the company’s secured debt, with accrued interest (approximately $4,007,713, as of May 31, 1942), debenture and note holders, as junior creditors, are entitled to participate in a distribution of assets only to the extent that these are “free” assets not subject to the mortgage lien. Case v. Los Angeles Lbr. Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110; Consolidated Rock Products v." }, { "docid": "12405707", "title": "", "text": "Co. v. Central Union Trust Co., 8 Cir., 294 F. 32, 40; United States v. Johnson, 8 Cir., 98 F.2d 462, 466. Atlantic Trust Co. v. Chapman, 208 U.S. 360, 371-373, 28 S.Ct. 466, 52 L.Ed. 528, 13 Ann.Cas. 1155; Ferguson v. Dent, C.C., 46 F. 88, 96-99; Elk Fork Oil & Gas Co. v. Jennings, C.C., 90 F. 767, 770; State ex inf. Hadley v. People’s United States Bank, 197 Mo. 605, 95 S.W. 867, 869; French v. Gifford, 31 Iowa 428, 480; Radford v. Folsom, 55 Iowa 276, 287, 7 N.W. 604; Harrington v. Foley, 108 Iowa 287, 294, 79 N.W. 64; Cutter v. Pollock, 4 N.D. 205, 59 N.W. 1062, 25 L.R.A. 377, 50 Am.St.Rep. 644; Farmers’ Nat. Bank’ v. Backus, 74 Minn. 264, 267, 77 N.W. 142; Crump & Field v. First Nat. Bank, 229 Ky. 526, 17 S.W.2d 436, 68 A.L.R. 872, and annotations, page 878. See, also, Clark v. Brown, 8 Cir., 119 F. 130, 133. Atlantic Trust Co. v. Chapman, 208 U.S. 360, 372, 373, 28 S.Ct. 406, 52 L.Ed. 528, 13 Ann.Cas. 1155; Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 214, 47 S.Ct. 578, 71 L.Ed. 1002; Central West Public Service Co. v. Craig, 8 Cir., 70 F.2d 427, 435; Close v. Brictson Mfg. Co., 8 Cir., 49 F.2d 751, 756; Noxon Chemical Products Co. v. Leckie, 3 Cir., 39 F.2d 318, 321; Fulp v. McCray, 8 Cir., 21 F.2d 951, 952; McIntosh v. Ward, 7 Cir., 159 F. 66, 68, 69; Couper v. Shirley, 9 Cir., 75 F. 168, 171; State ex inf. Hadley v. People’s, etc., Bank, 197 Mo. 605, 95 S.W. 867, 869; St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 230, 36 S.W. 357, 658, 33 L.R.A. 341. See, also, Bushman v. Barlow, 328 Mo. 90, 40 S.W.2d 637. W. F. Potts Son & Co. v. Cochrane, 5 Cir., 59 F.2d 375, 377, 378; Speakman v. Bryan, 5 Cir., 61 F.2d 430, 431; Fulp v. McCray, 8 Cir., 21 F.2d 951, 952; McIntosh v. Ward, 7 Cir., 159 F. 66, 68, 69; Farmers’" }, { "docid": "12740040", "title": "", "text": "an authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties.” Hart v. B. F. Keith Vaudeville Exchange, 2 Cir., 12 F.2d 341, 47 A.L.R. 775. 8 U.S.C.A. § 56 and 18 U.S.C.A. § 1581; see United States v. Reynolds, 235 U.S. 133, 35 S.Ct. 86, 59 L.Ed. 162; Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191; Clyatt v. United States, 197 U.S. 207, 25 S.Ct. 429, 49 L. Ed. 726; Taylor v. State of Georgia, 315 U.S. 25, 62 S.Ct. 415, 86 L.Ed. 615; Pollock v. Williams, 322 U.S. 4, 62 S.Ct. 415 86 L.Ed. 615. Allegheny Baseball Club v. Bennett, C.C.W.D.Pa., 14 F. 257; Metropolitan Exhibition Co. v. Ewing, C.C.S.D.N.Y., 42 F. 198, 7 L.R.A. 381; Brooklyn Baseball Club v. McGuire, C.C.E.D.Pa., 116 F. 782; Weegham v. Killefer, 6 Cir., 215 F. 289, L.R.A.1915A, 820; American League Baseball Club v. Chase, 86 Misc. 441, 149 N.Y.S. 6; Cincinnati Exhibition Co. v. Johnson, 190 Ill.App. 630; Metropolitan Exhibition Co. v. Ward, 9 N.Y.S. 779. American League Baseball Club v. Chase, 86 Misc. 441, 465, 466, 149 N.Y.S. 6, 19. Cf. Hurd v. Hodge, 334 U.S. 24, 34, 68 S.Ct. 847. That the defendants’ radio contracts are lucrative, see, Pittsburgh Athletic Co. v. KQV Broadcasting Co., D.C., 24 F.Supp. 490; Mutual Broadcasting System, Inc. v. Muzak Corp., 177 Misc. 489, 30 N.Y.S.2d 419. In passing, I note that that ruling is difficult to reconcile with the Mann Act cases; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168; Mortensen v. United States, 322 U.S. 369, 375, 64 S.Ct. 1037, 88 L.Ed. 1331; City of Cleveland v. United States, 329 U.S. 14, 19, 20, 67 S.Ct. 13, 91 L.Ed. 12. St. Louis V. & T. H. R. v. Terre Haute R. Co., 145 U.S. 393, 403, 404, 12 S.Ct. 953, 956, 36 L.Ed. 748; Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411; KVOS, Inc. v. Associated Press, 299 U.S. 269, 279, 57 S.Ct." }, { "docid": "15683656", "title": "", "text": "78 L. Ed. 465. 90 A. L. R. 391; Magann v. Segal, 92 F. 252 (C. C. A. 6) ; Merchants’ Loan & Trust Co. v. Chicago Railways Co., 158 F. 923 (C. C. A. 7) ; Investment Registry, Limited, v. Chicago, etc, R. Co, 212 F. 594 (C. C. A. 7) ; In re Howell, 215 F. 1 (C. C. A. 2); Guaranty Trust Co. v. International Steam Pump Co., 231 F. 594 (C. C. A. 2); Fearon v. Bankers’ Trust Co, 238 F. 83 (C. C. A. 3); Simon v. New Orleans, etc., R. Co, 242 F. 62 (C. C. A. 5); Painter v. Union Trust Co, 246 F. 240 (C. C. A. 6); U. S. & Mexican Trust Co. v. U. S. & Mexican Trust Co., 250 F. 377 (C. C. A. 8); Graselli Chemical Co. v. Aetna Explosives Co., 252 F. 456 (C. C. A. 2); Lane v. Equitable Trust Co., 262 F. 918 (C. C. A. 8); Phipps v. Chicago, etc., R. Co, 284 F. 945, 28 A. L. R. 1184 (C. C. A. 8); Beers v. Equitable Trust Co., 286 F. 878 (C. C. A. 8); Mountain States Power Co. v. A. L. Jordan Lumber Co., 293 F. 502 (C. C. A. 9); Habirshaw Elec. Cable Co. v. Habirshaw Elec. Cable Co, 296 F. 875, 43 A. L. R. 1035 (C. C. A. 2); Palmer v. Bankers’ Trust Co., 12 F.(2d) 747 (C. C. A. 8); Jameson v. Guaranty Trust Co., 20 F.(2d) 808 (C. C. A. 7); Kansas City Terminal R. Co. v. Central Union Trust Co., 28 F.(2d) 177 (C. C. A. 8); In re Alamac Operating Corporation, 42 F.(2d) 120 (C. C. A. 2); Speers, Sand & Clay Works v. American Trust Co., 52 F.(2d) 831 (C. C. A. 4); Bethlehem Steel Co. v. International Combustion Eng. Corporation, 66 F.(2d) 409 (C. C. A. 2) ; Guaranty Trust Co. v. Missouri Pac. R. Co, 238 F. 812 (D. C. E. D. Mo.); St. Louis-San Francisco R. Co. v. McElvain, 253 F. 123 (D. C. E. D. Mo.) ; Guaranty Trust Co." }, { "docid": "23299418", "title": "", "text": "is by no means clear that the facts alleged in Hackner v. Guaranty Trust Co. bearing on plaintiff’s participation in the recovery from debtor’s subsidiary are substantially similar to those which appear in the present record if we include defendant’s affidavits. If necessary, plaintiff could amend, either here or in the district court, when the case is remanded, to include in her complaint that portion of the facts contained in defendant’s affidavits bearing on her participation in such recovery. 28 U.S.C.A. § 777; Federal Rules of Civil Procedure, rule 15(c), 28 U.S.C.A. following section 723c; Smith v. McCullough, 270 U.S. 456, 460, 46 S. Ct. 338, 70 L.Ed. 682; Realty Holding Co. v. Donaldson, 268 U.S. 398, 400, 45 S.Ct. 521, 69 L.Ed. 1014; Norton v. Larney, 266 U.S. 511, 516, 45 S.Ct. 145, 69 L.Ed. 413; Mexican Cent. R. Co. v. Duthie, 189 U.S. 76, 23 S.Ct. 610, 47 L. Ed. 715; Kinney v. Columbia Savings & Loan Ass’n, 191 U.S. 78, 83, 24 S.Ct. 30, 48 L.Ed. 103; Thompson v. Automatic Fire Protection Co., C.C., 151 F. 945; Whalen v. Gordon, 8 Cir., 95 F. 305, 307; In re Plymouth Cordage Co., 8 Cir., 135 F. 1000, 1003; Gregg v. Gier, Fed.Cas.No.5,799; Missouri, Kansas & Texas R. Co. v. Wulf, 226 U.S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355; Atwood v. National Bank of Lima, 6 Cir., 115 F.2d 861, 863: New York Cent. & H. R. R. Co. v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 67 L.Ed. 294; Maty v. Grasseffi Chemical Co., 303 U.S. 197, 200, 201, 58 S.Ct. 507, 82 L.Ed. 745; United States v. Memphis Cotton Oil Co., 288 U.S. 62, 68, 69, 53 S.Ct. 278, 77 L.Ed. 619. But, for the reasons stated in the text, while it is perhaps desirable that plaintiff should thus amend when the case is remanded, such an amendment is not necessary to avoid defendant’s res judicata argument. Each note expressly refers, six times, to the defendant as “trustee.” There is not a syllable in the notes suggesting that the trustee is to be immunized" }, { "docid": "17953246", "title": "", "text": "re Povill, 2 Cir., 105 F.2d 157; Biggs v. Mays, 8 Cir., 125 F.2d 693, 698; In re Resler, D.C., 95 F. 804; In re Stoddard Bros. Lumber Co., D.O., 169 F. 190, 194; In re Strotz, D.O.S.D., Cal., 50 F.Supp. 322, 325. New York Civil Practice Act, § 56. New York Civil Practice Act, § 53; Potter v. Walker, 276 N.Y. 15, 25, 26, 11 N.E.2d 335. § 15(6), Title 49, U.S.C.A. Canton R. R. Co. v. Ann Arbor R. R. Co., 163 I.C.C. 263, 265-206, 267; New York Dock Ry. v. Baltimore & Ohio R. R. Co., 73 I.C.C. 656. Rule 53(e) (2); Barbarino v. Stan-hope S. S. Co., 2 Cir., 151 E.2d 553, 555; Kreste v. United States, 2 Cir., 158 F.2d 575, 577; Guerrini v. United States, 2 Cir., 167 F.2d 352. Restatement of Agency, § 469. Restatement of Agency, § 439(e). Restatement of Trusts, § 244. Gross revenue per ton mile — 3.26 mills. Deducting Peoria switching charges, charges due other roads and per diems, the net revenue is 2.18 mills per ton mile. Average cost per ton mile (all freight) 2.50 Less Danville switching 34 .425 Old Colony R. Co. v. New York, N. H. & H. R. Co., 2 Cir., 98 E.2d 670, reversed on grounds not relevant here, 305 U.S. 578, 59 S.Ct. 647, 83 L.Ed. 364. 254 U.S. 590, 41 S.Ct. 209, 65 L.Ed. 425. 293 N.Y. 442, 57 N.E.2d 825. 289 U.S. 121, 53 S.Ot. 536, 77 L.Ed. 1075. Thompson v. Texas-Mexican Ry. Co., 328 U.S. 134, 148, 66 S.Ct. 937, 945, 90 L.Ed. 1132. Perkins v. Hart, 11 Wheat. 237, 256, 6 L.Ed. 463; Standard Oil Company v. VanEtten, supra, 107 U.S. 325, 332,1 S.Ct. 178, 27 L.Ed. 319. Wootton Land & Fuel Co. v. Owdbey, 8 Cir., 265 F. 91, 99; Judson v. Buckley, 2 Cir., 130 F.2d 174, 183; Garrett v. First Nat. Bank & Trust Co., 5 Cir., 153 F.2d 289, 292. 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255. 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999. 293 F. 591. 77 F.2d 312." }, { "docid": "17953244", "title": "", "text": "Directors, must prove and establish their right to do so.” Ewen v. Peoria & E. R. Company, D.C., 34 F.Supp. 332; 37 F.Supp. 917. 150 N.Y. 410, 44 N.E. 1043, 34 E.R. A. 76, 55 Am.St.Rep. 689. 204 N.Y. 588, 97 N.E. 475. Restatement of Agency, § 392; Restatement of Trusts, § 216(2) (e). 290 F. C98, 702. 254 U.S. 590, 41 S.Ot. 209, 65 L.Ed. 425. 308 U.S. 295, 60 S.Ot. 238, 84 L.Ed. 281. Goldboss v. Reimann, S.D.N.Y., 55 E.Supp. 811, affirmed on opinion below, 2 Cir., 143 E.2d 594; Spiegel v. Beacon Participations, 297 Mass. 398, 8 N. E.2d 895; Everett v. Phillips, 288 N.Y. 227, 43 N.E.2d 18; Helfman v. American Light & Traction Co., 121 N.J.Eq. 1, 187 A. 540. “Fourth. — Within sixty days after the 81st of December, 1800, and each year thereafter, the Cleveland Co. is to make up and state all its receipts for earnings and income from the said lines of railroad operated by it under these presents, and from said purchase money lien, and all its disbursements for interest or rental as aforesaid, and for the cost and expense of using, operating and maintaining said lines of railroad and of complying with the requirements of these presents, and to render proper accounts thereof to the Peoria Co. and to the trustees of its said second mortgage as in said second mortgage required.” Standard Oil Company v. Van Etten, 107 U.S. 325, 333, 334, 1 S.Ct. 178, 27 L.Ed. 319; Bonwit Teller & Co. v. United States, 283 U.S. 258, 265, 51 S.Ct. 395, 75 L.Ed. 1018; Daube v. United States, 289 U.S. 367, 370, 53 S.Ct. 597, 77 L.Ed. 1261; Boise v. Talcott, 2 Cir., 264 F. 61, 66; Leathe v. Title Guaranty Trust Co., 8 Cir., 18 F.2d 41, 49; Kretni Development Co. v. Consolidated Oil Co., 10 Cir., 74 F.2d 497, 500; Restatement of Contracts, § 422 (2); Wiiliston on Contracts, § 1863. Hargadine-McKittrick Dry Goods Co. v. Hudson, 8 Cir., 122 F. 232, 234; In re German-American Improvement Company, 2 Cir., 3 F.2d 572, 575; In" }, { "docid": "17953245", "title": "", "text": "all its disbursements for interest or rental as aforesaid, and for the cost and expense of using, operating and maintaining said lines of railroad and of complying with the requirements of these presents, and to render proper accounts thereof to the Peoria Co. and to the trustees of its said second mortgage as in said second mortgage required.” Standard Oil Company v. Van Etten, 107 U.S. 325, 333, 334, 1 S.Ct. 178, 27 L.Ed. 319; Bonwit Teller & Co. v. United States, 283 U.S. 258, 265, 51 S.Ct. 395, 75 L.Ed. 1018; Daube v. United States, 289 U.S. 367, 370, 53 S.Ct. 597, 77 L.Ed. 1261; Boise v. Talcott, 2 Cir., 264 F. 61, 66; Leathe v. Title Guaranty Trust Co., 8 Cir., 18 F.2d 41, 49; Kretni Development Co. v. Consolidated Oil Co., 10 Cir., 74 F.2d 497, 500; Restatement of Contracts, § 422 (2); Wiiliston on Contracts, § 1863. Hargadine-McKittrick Dry Goods Co. v. Hudson, 8 Cir., 122 F. 232, 234; In re German-American Improvement Company, 2 Cir., 3 F.2d 572, 575; In re Povill, 2 Cir., 105 F.2d 157; Biggs v. Mays, 8 Cir., 125 F.2d 693, 698; In re Resler, D.C., 95 F. 804; In re Stoddard Bros. Lumber Co., D.O., 169 F. 190, 194; In re Strotz, D.O.S.D., Cal., 50 F.Supp. 322, 325. New York Civil Practice Act, § 56. New York Civil Practice Act, § 53; Potter v. Walker, 276 N.Y. 15, 25, 26, 11 N.E.2d 335. § 15(6), Title 49, U.S.C.A. Canton R. R. Co. v. Ann Arbor R. R. Co., 163 I.C.C. 263, 265-206, 267; New York Dock Ry. v. Baltimore & Ohio R. R. Co., 73 I.C.C. 656. Rule 53(e) (2); Barbarino v. Stan-hope S. S. Co., 2 Cir., 151 E.2d 553, 555; Kreste v. United States, 2 Cir., 158 F.2d 575, 577; Guerrini v. United States, 2 Cir., 167 F.2d 352. Restatement of Agency, § 469. Restatement of Agency, § 439(e). Restatement of Trusts, § 244. Gross revenue per ton mile — 3.26 mills. Deducting Peoria switching charges, charges due other roads and per diems, the net revenue is 2.18" }, { "docid": "13720532", "title": "", "text": "the opinion in the Mellon Case “that the indicated purpose of Congress will be best carried out by construing the relevant statutes, so far as may be, with the general intent to preserve the substantive rights of all parties concerned as they would have existed but for Federal control,” is equally appropriate here. We think, therefore, that the rights of the priority creditors are superior to the claims of appellant. Those rights constitute equitable liens upon the estate to the extent of any net income of the receiver, and unmortgaged assets; and, in case of diversion of net operating income, during the six months period prior to receivership, to the payment of accruing interest on mortgage indebtedness or to capital account expenditure, those preferred rights may extend to the corpus itself. Brent v. Bank of Washington, 10 Pet. 596, 9 L. Ed. 547; Fosdick v. Schall, 99 U. S. 252, 25 L. Ed. 339; Burnham v. Bowen, 111 U. S. 776, 4 S. Ct. 675, 28 L. Ed. 596; Gregg v. Metropolitan Trust Co., 197 U. S. 183, 25 S. Ct. 415, 49 L. Ed. 717; Moore v. Donahoo (C. C. A. 9) 217 F. 177; Illinois Trust & Savings Bank v. Doud (C. C. A. 8) 105 F. 123, 52 L. R. A. 481; Chicago & Alton R. Co. v. U. S. & Mexican Trust Co. (C. C. A. 8) 225 F. 940. And these equitable liens may be enforced independently of foreclosure proceedings. Moore v. Donahoo, supra, 217 F. loc. cit. 183. Holding, as they do, preferred rights, under certain conditions, over mortgages of record, it would seem illogical that they should be displaced by this governmental claim of priority,’ which, we think is clearly inferior to the mortgage liens. These equitable rights attached and were a subsisting charge upon the assets of the railroad before the United States, in any view, was in a position to assert and enforce its claim. Marshall, Receiver, v. People of the State of New York, 254 U. S. 380, 41 S. Ct. 143, 65 L. Ed. 315. There are other reasons" }, { "docid": "11978956", "title": "", "text": "capacity is the only real or indispensable defendant. In considering the question of jurisdiction we may disregard the presence of both the United States Fidelity & Guaranty Company and The First National Bank of Danville as party defendants. The bill sets up no basis for discovery as against either of them. See Interstate Refineries, Inc., v. Barry, 8 Cir., 7 F.2d 548, 550. As to Mrs. Loring, individually and as administratrix, the theory of the bill is that plaintiffs are entitled to a discovery of the assets of the deceased in aid of their right to an accounting, settlement and distribution thereof. The High Court of Chancery in England, prior to the adoption of our Constitution and the Judiciary Act of 1789, I Stat. 73, entertained bills of discovery. It follows therefore that the District Court as between plaintiffs and Mrs. Loring, citizens of different States, had jurisdiction where the amount in controversy was, as alleged, more than $3,000 exclusive of interest and costs. Title 28, Sec. 41(1), U.S.C., 28 U.S.C.A. § 41(1); Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80; Toledo, St. Louis & W. Ry. Co. v. Perenchio, 7 Cir., 205 F. 472. The fact that the County Court of Obion County, Tenn., had jurisdiction to settle the estate did not preclude jurisdiction of the District Court. Rich v. Bray, C.C., 37 F. 273, 2 L.R.A. 225. The important question is that of venue. The statute, title 28, Sec. 112(a) U.S.C., 28 U.S.C.A. § 112(a), provides that where the action is between citizens of different States, “suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” The suit was brought in the Western District of Tennessee and no plaintiff was a resident of that district. According to the averments of the bill, Mrs. Loring was not a resident of the Western District. When sued there it was her privilege seasonably to contest the jurisdiction or to waive the question. Seaboard Rice Milling Co. v. Chicago, etc., R. Co., 270 U.S. 363, 365," }, { "docid": "20963073", "title": "", "text": "it must be between plaintiff and the United States Post Office Department, not plaintiff and the Army. There is much language in the cases that the status of the Government in carrying and delivering the mails is that of a bailee to the owner or sender. United States v. National Surety Corp., 8 Cir., 103 F.2d 450, affirmed 309 U.S. 165, 60 S.Ct. 458, 84 L. Ed. 677; United States v. United Fruit Co., D.C., 292 F. 308; United States Fidelity & Guaranty Co. v. United States, 9 Cir., 246 F. 433; United States v. Atlantic Coast Line R. Co., 4 Cir., 215 F. 56; United States v. Hamburg-Amerikan, etc., Gesellschaft, 2 Cir., 212 F. 40, L.R.A. 1917C, 1103; United'States v. American: Surety Company, 4 Cir.,' 163 F. 228. It should be notedj however, that in the cases-' cited, the language used is in response to-contentions of defendants sued by the Government that the Government, not being liable to the owners or senders of lost mail,, had no right to recover. The question of the liability of the Government to the sender of lost mail presented here, was-not in issue in any of these cases. Whatever the status of the Government may be, it is clear that it has a sufficient interest to maintain a suit for loss of or injury to the mails (cases cited,, supra). It has been held that in the event of recovery by the Government, the money is-held in trust, and it is the duty of the Government to turn it over to the owner of the-mail. United Fruit Co. v. United States,. 5 Cir., 33 F.2d 664. This has no bearing on the present case, however, as there has-been no recovery by the Government. Assuming that an implied contract of' bailment exists between plaintiff and defendant because of the tender of shipments to the United States Post Office Department, we come to the question as to-whether the United States is liable to claimant for the partial loss of or damage to fourth class, unprotected mail. The United States, in the carriage and delivery of" }, { "docid": "10573828", "title": "", "text": "facie joint funds of the trust and of Smith personally, which the bank took at the peril of having to repay if, and to the extent that, the trust fund was thereby depleted. United States Fidelity Co. v. Union Bank, etc. (C. C. A. 6) 228 F. at page 451. The proofs show that available funds fell short of discharging Smith’s official liability, and in a large amount. I think, also, that, under the facts of this case, the bank carries the burden of showing that it in fact took only Smith’s personal funds. This would seem to result, not alone from the prima facie situation referred to, but also from the peculiarly better means of information upon the subject presumably possessed by the bank, which could and should have known of the trust condition. Under the faets before us, the bank would not be justified in receiving from the fund payment of its private debt, unless it knew that it was in fact taking only Smith’s personal funds. Cf. Brennan v. Tillinghast (C. C. A. 6) 201 F. at pages 613-615; United States Fidelity Co. v. Union Bank, etc., supra. National Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693; City of Helena v. National Bank, 173 Ark. 197, 292 S. W. 140; Havana Central R. Co. v. Central Trust Co. (C. C. A. 2) 204 F. 546, L. R. A. 1915B, 715; Southern Trust & Commerce Bank v. San Diego Savings Bank, 60 Cal. App. 215, 212 P. 385; Goodwin’s Adm’r v. American National Bank, 48 Conn. 550; Allen v. Fourth National Bank, 224 Mass. 239, 112 N. E. 650; Kendall v. Fidelity Trust Co., 230 Mass. 238, 119 N. E. 861; Munnerlyn, Trustee, v. Augusta Savings Bank, 88 Ga. 333, 14 S. E. 554, 30 Am. St. Rep. 159; Whiting v. Hudson Trust Co., 234 N. Y. 394, 138 N. E. 33, 25 A. L. R. 1470." }, { "docid": "15683655", "title": "", "text": "674, 19 S. Ct. 827, 43 L. Ed. 1130; Ballentyne v. Smith, 205 U. S. 285, 27 S. Ct. 527, 51 L. Ed. 803; In re Metropolitan Ry. Receivership, 208 U. S. 90, 28 S. Ct. 219, 52 L. Ed. 403; Northern Pac. R. Co. v. Boyd, 228 U. S. 482, 33 S. Ct. 554, 57 L. Ed. 931; Kansas City S. R. Co. v. Guardian Trust Co., 240 U. S. 166, 36 S. Ct. 334, 60 L. Ed. 579; Waller v. Texas & P. R. Co., 245 U. S. 398, 38 S. Ct. 142, 62 L. Ed. 362; Southern Pac. Co. v. Bogert, 250 U. S. 483, 39 S. Ct. 533, 63 L. Ed. 1099; Kansas City Terminal R. Co. v. Central Union Trust Co., 271 U. S. 445, 46 S. Ct. 549, 70 L. Ed. 1028; Home B. & L. Ass’n v. Blaisdell, 290 U. S. 398, 54 S. Ct. 231, 78 L. Ed. 413, 88 A. L. R. 1481; First Nat. Bank v. Flershem, 290 U. S. 504, 54 S. Ct. 298, 78 L. Ed. 465. 90 A. L. R. 391; Magann v. Segal, 92 F. 252 (C. C. A. 6) ; Merchants’ Loan & Trust Co. v. Chicago Railways Co., 158 F. 923 (C. C. A. 7) ; Investment Registry, Limited, v. Chicago, etc, R. Co, 212 F. 594 (C. C. A. 7) ; In re Howell, 215 F. 1 (C. C. A. 2); Guaranty Trust Co. v. International Steam Pump Co., 231 F. 594 (C. C. A. 2); Fearon v. Bankers’ Trust Co, 238 F. 83 (C. C. A. 3); Simon v. New Orleans, etc., R. Co, 242 F. 62 (C. C. A. 5); Painter v. Union Trust Co, 246 F. 240 (C. C. A. 6); U. S. & Mexican Trust Co. v. U. S. & Mexican Trust Co., 250 F. 377 (C. C. A. 8); Graselli Chemical Co. v. Aetna Explosives Co., 252 F. 456 (C. C. A. 2); Lane v. Equitable Trust Co., 262 F. 918 (C. C. A. 8); Phipps v. Chicago, etc., R. Co, 284 F. 945, 28 A. L. R." }, { "docid": "1661759", "title": "", "text": "by said defendants. ,4. Said receiver is further directed to apply the rents and profits received from the management and operation of said property in accordance with the further order of this court. . Freedman’s Savings & Trust Co. v. Shepherd, 127 U.S. 494, 8 S.Ct. 1250, 32 L.Ed. 163; Grant v. Phoenix Mutual Life Insurance Company, 121 U.S. 105, 7 S.Ct. 841, 30 L.Ed. 905; Teal v. Walker, 111 U.S. 242, 4 S.Ct. 420, 28 L.Ed. 415; Omaha Hotel Company v. Kountze, 107 U.S. 378, 2 S.Ct. 911, 27 L.Ed. 609; Garden Homes, Inc. v. United States, 1 Cir., 200 F.2d 299; 207 F.2d 459; Tower Grove Bank & Trust Co. v. Weinstein, 8 Cir., 119 F.2d 120; Totten v. Harlowe, 67 App.D.C. 132, 90 F.2d 377, 111 A.L.R. 726; McNamara v. Hart, 8 Cir., 83 F.2d 649; Associated Co. v. Greenhut, 3 Cir., 66 F.2d 428; In re Morris White Holding Co., D.C., 52 F.2d 499; Mortgage Loan Co. v. Livingston, 8 Cir., 45 F.2d 28; Colonial Trust Co. v. Stone Harbor Electric Light & Power Co., D.C., 280 F. 245; In re Clark Realty Co., 7 Cir., 234 F. 576; New York Trust Co. v. Michigan Traction Co., D.C., 193 F. 175; Morrill v. American Reserve Bond Co., C.C., 151 F. 305; In re Banner, D.C., 149 F. 936; Atlantic Trust Co. v. Dana, 8 Cir., 128 F. 209; Central Trust Co. of New York v. Chattanooga, R. & C. R. Co., 5 Cir., 94 F. 275; O’Hara v. Mobile & O. R. Co., C.C., 75 F. 130. . The Court said, 200 F.2d 299, 301-302: “But how much in addition to these matters [inadequacy of the security and the doubtful financial standing of the debtor] must be shown to warrant the appointment of a general receiver we do not need to determine in this case, for up to this point all that has been made to appear, in addition to a clear showing of a valid mortgage and a prima facie indication of a default, are doubts, resting for the most part upon inferences, as to" } ]

[ { "docid": "488808", "title": "", "text": "The government is ordered to provide Rodriguez with an individualized bond hearing pursuant to Section 236(a) within ten days of this Order. If the Immigration Court fails to provide a hearing within ten days, respondents shall pelease Rodriguez from custody. SO ORDERED. . Congress separately provided for the immigration detention of non-citizens after a removal order against them becomes \"administratively final.” 8 U.S.C. § 1231(a)(l)(B)(i). See Guerra v. Shanahan, 14 Civ. 4203(KMW), 2014 WL 7330449 (S.D.N.Y. Dec. 23, 2014) (discussing when a petitioner may be detained pursuant to 8 U.S.C. § 1231 as compared to 8 U.S.C. § 1226). . \"Originally, the authority and duties imposed by [Section 236(c) ] were those of the Attorney General; today, they belong to DHS.” Straker v. Jones, 986 F.Supp.2d 345, 351 (S.D.N.Y.2013) (citing 6 U.S.C. §§ 202, 251, 557; Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir.2010); United States v. Rios-Zamora, 153 Fed.Appx. 517, 520-21 (10th Cir.2005) (\"With the transfer of authority under 6 U.S.C. § 557, as of March 1, 2003, the title 'Attorney Genera! is synonymous with the Secretary of Homeland Security.”)). . Araujo-Cortes v. Shanahan, however, is pending before the Court of Appeals for the Second Circuit. See 14-3719 (2d Cir. filed Oct. 3, 2014). See also Gomez v. Napolitano, 11 Civ. 2682, 2012 U.S.App. LEXIS 27076, at * 1-2 (2d Cir. June 5, 2012) (recognizing that \"the proper interpretation of [Section 236(c) ] is a.weighty question, unresolved in this Circuit\" but dismissing the appeal as moot because a final order of removal had been issued against the petitioner, rendering him detainable under a different provision). . To the extent that the government relies on the opinions of the Third and Fourth Circuits, those Circuits were mistaken in their piecemeal analysis. See Araujo-Cortes, 35 F.Supp.3d at 543-44, 2014 WL 3843862, at *8; Lora, 15 F.Supp.3d at 489; Khoury, 3 F.Supp.3d at 888. . Said another way, \"By failing to detain an alien subject to mandatory detention immediately after his release from non-DHS custody, DHS has already deprived the public of the benefits of mandatory detention. It has allowed an" } ]

[ { "docid": "9523727", "title": "", "text": "the United States, or a foreign country relating to a controlled substance ... other than a single offense involving possession for one's own use of 30 grams or less of marijuana” may be deported). . See 2006 Cert, at 3. See also id. at 12-13 (the booking detail for Martinez’s forty-one day custodial period). . Ret. at 2. . The best evidence for this explanation is that the same indictment number — 468-2003 — appears on (1) the record of Martinez’s 2004 remand and (2) the record of Martinez’s 2006 re-sentencing in connection with his revised plea. See 2006 Cert, at 3-4. . See Notice to Appear, Ex. 4 to Ret. . See Notice of Custody Determination, Ex. 5 to Ret. . 8 U.S.C. § 1226(a). . See id. § 1226(a)(2)(A). . See id. § 1226(a)(2)(B). . See id. § 1226(c)(l)(A)-(D) (enumerating the categories of offense that trigger mandatory detention). . Id. § 1226(c)(1) (emphasis added). . See Lora v. Shanahan, 15 F.Supp.3d 478, 491 (S.D.N.Y.2014) (noting that \"the meaning of the word 'when' in [section 236(c) ] has been litigated extensively in federal courts\"). . See, e.g., Louisaire v. Muller, 758 F.Supp.2d 229, 236 (S.D.N.Y.2010). . See Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). . Straker v. Jones, 986 F.Supp.2d 345, 352 (S.D.N.Y.2013). . Id. . Id. at 352-53. . See id. (Judge Engelmayer). See also Johnson v. Orsino, 942 F.Supp.2d 396 (S.D.N.Y.2013) (Judge Castel); Santana v. Muller, No. 12 Civ. 430, 2012 WL 951768 (S.D.N.Y. Mar. 21, 2012) (Judge Crotty); Guillaume v. Muller, No. 11 Civ. 8819, 2012 WL 383939 (S.D.N.Y. Feb. 7, 2012) (Judge Griesa); Mendoza v. Muller, No. 11 Civ. 7857, 2012 WL 252188 (S.D.N.Y. Jan. 25, 2012) (Judge Sullivan); Gomez v. Napolitano, No. 11 Civ. 1350, 2011 WL 2224768 (S.D.N.Y. May 31, 2011) (Judge Rakoff). . See Araujo-Cortes, 35 F.Supp.3d 533, 2014 WL 3843862 (Judge Hellerstein). See also Louisaire, 758 F.Supp.2d at 235-37 (Judge McMahon); Lora, 15 F.Supp.3d 478 (Judge Peck); Aparicio v. Muller, No. 11 Civ. 437 (S.D.N.Y. Apr. 7, 2011) (oral decision) (Judge Kaplan); Jean v. Orsino, No. 11" }, { "docid": "15455928", "title": "", "text": "third-party doctrine. See Miller, 425 U.S. at 436, 440-44, 96 S.Ct. 1619. Moreover, the third-party doctrine does not require the government to use the third party's records in the same way the third party does. Third parties maintain records in the ordinary course of their own business. See Smith, 442 U.S. at 744, 99 S.Ct. 2577. That business is usually not crime-fighting. See, e.g., id. Thus, law enforcement will almost always use the accessed information for a different purpose and in a different way than the third party. . See, e.g., United States v. Wheeler, No. 15-216, - F.Supp.3d -, -, 2016 WL 1048989, at *11-13 (E.D. Wis. Mar. 14, 2016) (Pepper, J.); United States v. Chavez, No. 3:14-185, 2016 WL 740246, at *2-4 (D. Conn. Feb. 24, 2016) (Meyer, J.); United States v. Epstein, No. 14-287, 2015 WL 1646838, at *4 (D.N.J. Apr. 14, 2015) (Wolfson, J.); United States v. Dorsey, No. 14-328, 2015 WL 847395, at *8 (C.D. Cal. Feb. 23, 2015) (Snyder, J.); United States v. Lang, No. 14-390, 78 F.Supp.3d 830, 834-37, 2015 WL 327338, at *3-4 (N.D. Ill. Jan. 23, 2015) (St. Eve, J.); United States v. Shah, No. 13-328, 2015 WL 72118, at *7-9 (E.D.N.C. Jan. 6, 2015) (Flanagan, J.); United States v. Martinez, No. 13-3560, 2014 WL 5480686, at *3-5 (S.D. Cal. Oct. 28, 2014) (Hayes, J.); United States v. Rogers, 71 F.Supp.3d 745, 748-50 (N.D. Ill. 2014)(Kocoras, J.); United States v. Giddins, 57 F.Supp.3d 481, 491-94 (D. Md. 2014) (Quarles, J.); United States v. Banks, 52 F.Supp.3d 1201, 1204-06 (D. Kan. 2014) (Crabtree, J.); United States v. Serrano, No. 13-58, 2014 WL 2696569, at *6-7 (S.D.N.Y. June 10, 2014) (Forrest, J.); United States v. Moreno-Nevarez, No. 13-0841, 2013 WL 5631017, at *1-2 (S.D. Cal. Oct. 2, 2013) (Benitez, J.); United States v. Rigmaiden, No. 08-814, 2013 WL 1932800, at *14 (D. Ariz. May 8, 2013) (Campbell, J.); United States v. Gordon, No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012) (Urbina, J.); United States v. Benford, No. 09-86, 2010 WL 1266507, at *2-3 (N.D. Ind. Mar. 26, 2010) (Moody, J.);" }, { "docid": "16037362", "title": "", "text": "constitutes a predicate offense under § 922(g)(1), however, does not end with the words 'in any court.’ 'The text’s plain meaning can best be understood by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute.’ ” (citations omitted)), cert. denied, 544 U.S. 1026, 125 S.Ct. 1968, 161 L.Ed.2d 872 (2005); Auburn Housing Auth. v. Martinez, 277 F.3d 138, 144 (2d Cir.2002) (\" 'Statutory construction ... is a holistic endeavor.’ The meaning of a particular section in a statute can be understood in context with and by reference to the whole statutory scheme, by appreciating how sections relate to one another. In other words, the preferred meaning of a statutory provision is one that is consonant with the rest of the statute.” (citations omitted)). . See, e.g., Debel v. Dubois, 13 Civ. 6028, 2014 WL 708556 at *4 (S.D.N.Y. Feb. 25, 2014) (§ 1226(c) \"has recently become the subject of much debate among the federal courts”), rev’d, Dkt. No. 27: Opinion & Order (S.D.N.Y. Apr. 24, 2014); Straker v. Jones, 13 Civ. 6915, 986 F.Supp.2d 345, 351, 2013 WL 6476889 at *4 (S.D.N.Y. Dec. 10, 2013) (noting that “issues about the meaning of this clause” have “been the subject of extensive litigation in the federal courts”). . See, e.g., Debel v. Dubois, 2014 WL 708556 at *4 (“The Second Circuit has not yet opined on the issue and courts are divided as to its meaning.”); see also pages 12-23 below. . It is important to note that \"[a]lthough not explicitly identified as [a] consideration[], the BIA’s [Rojas ] decision appears to be motivated by the fact[ ] that Rojas had only been at liberty for two days.” Debel v. Dubois, 13 Civ. 6028, 2014 WL 708556 at *8 (S.D.N.Y. Feb. 25, 2014) (\"Indeed, what is missing from Rojas is any consideration whatsoever as to whether Congress intended some outer temporal boundary that would curtail ICE’s authority under § 1226(c) in order to ensure the statute did not run afoul of due process.”), rav'd, Dkt. No. 27: Opinion & Order (S.D.N.Y. Apr." }, { "docid": "15490126", "title": "", "text": "take into custody any alien who [meets the requirements of one of subsections (A) through (D) ] when the alien is released,” § 1226(c) (emphasis added), imposes on DHS a deadline within which it must act to exercise its mandatory detention authority. He construes the word “when” to mean that DHS can subject an alien to mandatory detention only if it detains him at, or around, the time he is released from criminal custody for the removable offense. Straker Br. 7-18. If, however, DHS waits to detain the alien, the statutory basis for mandatory detention evaporates. This construction of “when” — which the Court refers to as the “time-limiting” construction — would place Straker outside the reach of the mandatory detention statute. That is because his two qualifying convictions (for possession of crack cocaine, in 2008, and for sale of crack cocaine, in 2009) resulted in noncustodial sentences that were completed long before DHS assumed custody of Straker in 2013. Although no federal appellate court has adopted this construction, a number of courts in this District have adopted it. See Jean v. Orsino, No. 11 Civ. 3682(LTS) (S.D.N.Y. June 30, 2011) (oral decision attached as Appendix A to Straker Br.); Aparicio v. Muller, No. 11 Civ. 0437(RJH) (S.D.N.Y. April. 7, 2011) (same); Louisaire v. Muller, 758 F.Supp.2d 229, 236 (S.D.N.Y.2010); Monestime v. Reilly, 704 F.Supp.2d 453, 458 (S.D.N.Y.2010); Garcia v. Shanahan, 615 F.Supp.2d 175, 182 (S.D.N.Y.2009). So have a number of district courts elsewhere. See, e.g., Castaneda v. Souza, 952 F.Supp.2d 307, 316-17 (D.Mass.2013); Gomez-Ramirez v. Asher, No. C13-196-RAJ, 2013 WL 2458756, at *3 (W.D.Wash. June 5, 2013); Bacquera v. Longshore, No. 13-ev-00543-RM-MEH, 2013 WL 2458756, at *4 (D. Colo. June 4, 2013); Deluis-Morelos v. ICE Field Office Dir., No. 12CV-1905JLR, 2013 WL 1914390, at *5 (W.D.Wash. May 8, 2013); Dighero-Castaneda v. Napolitano, No. 2:12-cv-2367 DAD, 2013 WL 1091230, at *7 (E.D.Cal. Mar. 15, 2013); Bogarin-Flores v. Napolitano, No. 12cv0399 JAH (WMC), 2012 WL 3283287, at *3 (S.D.Cal. Aug. 10, 2012); Ortiz v. Holder, No. 2:11CV1146 DAK, 2012 WL 893154, at *3 (D.Utah Mar. 14, 2012); Khodr v. Adduci, 697" }, { "docid": "16037356", "title": "", "text": "SO ORDERED. . Lora was sentenced to three years probation on the paraphernalia conviction and five years probation on each of the two possession convictions. (Pet. ¶ 35; Lora Aff. ¶ 14.) . \"A person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses ... one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more_Crimi-nal possession of a controlled substance in the third degree is a class B felony.” Penal Law § 220.16(12). . DHS originally charged Lora with being deportable on a second basis, namely, his possession with intent to distribute conviction, an aggravated felony under INA § 237(a)(2)(A)(iii). (Pet. ¶ 40 & Ex. F: Notice to Appear at 3.) ICE later amended Lora’s deportation grounds to eliminate the aggravated felony charge as a result of the vacatur of that conviction. (Dkt. No. 6: Peleg 4/7/14 Aff. ¶ 5.) . Under INA § 240A(a), DHS has the discretion to cancel an alien’s removal if, inter alia, he “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). . Accord, e.g., Straker v. Jones, 13 Civ. 6915, 986 F.Supp.2d 345, 349-50, 2013 WL 6476889 at *3 (S.D.N.Y. Dec. 10, 2013) (citing cases); Louisaire v. Muller, 758 F.Supp.2d at 234; Monestime v. Reilly, 704 F.Supp.2d 453, 456 (S.D.N.Y.2010); Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y.2009). . The government also does not dispute that this case was properly brought in New York since \"jurisdiction over a habeas petition is established at the time the petition is filed” and Lora filed his petition while \"present at the Varick Detention Center in Manhattan.” (Gov't Opp. Br. at 5 & n. 6.) .See, e.g., Debel v. Dubois, 13 Civ. 6028, 2014 WL 708556 at *4 (S.D.N.Y. Feb. 25, 2014) (\"Aliens not subject to mandatory detention pursuant to § 1226(c) fall under § 1226(a), which entitles them to individual bond determinations.”), rev’d, Dkt. No. 27: Opinion & Order, 2014 WL 1689042 (S.D.N.Y. Apr. 24," }, { "docid": "16037357", "title": "", "text": "has the discretion to cancel an alien’s removal if, inter alia, he “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). . Accord, e.g., Straker v. Jones, 13 Civ. 6915, 986 F.Supp.2d 345, 349-50, 2013 WL 6476889 at *3 (S.D.N.Y. Dec. 10, 2013) (citing cases); Louisaire v. Muller, 758 F.Supp.2d at 234; Monestime v. Reilly, 704 F.Supp.2d 453, 456 (S.D.N.Y.2010); Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y.2009). . The government also does not dispute that this case was properly brought in New York since \"jurisdiction over a habeas petition is established at the time the petition is filed” and Lora filed his petition while \"present at the Varick Detention Center in Manhattan.” (Gov't Opp. Br. at 5 & n. 6.) .See, e.g., Debel v. Dubois, 13 Civ. 6028, 2014 WL 708556 at *4 (S.D.N.Y. Feb. 25, 2014) (\"Aliens not subject to mandatory detention pursuant to § 1226(c) fall under § 1226(a), which entitles them to individual bond determinations.”), rev’d, Dkt. No. 27: Opinion & Order, 2014 WL 1689042 (S.D.N.Y. Apr. 24, 2014); Straker v. Jones, 986 F.Supp.2d at 351, 2013 WL 6476889 at *4 (“Section 1226(a) allows federal immigration authorities to detain an alien during removal proceedings, subject to a bond hearing.”). . See, e.g., Straker v. Jones, 986 F.Supp.2d at 351, 2013 WL 6476889 at *4 (\"Section 1226(c), entitled 'Detention of criminal aliens,’ however, provides for mandatory detention of certain criminal aliens. Immigration authorities may not provide such aliens with a bond hearing.”). . \"Originally, the authority and duties imposed by § 1226(c) were those of the Attorney General; today, they belong to DHS.” Straker v. Jones, 986 F.Supp.2d at 351, 2013 WL 6476889 at *4. .The government has discretion to release mandatorily detained criminal aliens \"only in limited circumstances, not applicable here, upon a determination that release is necessary to protect a witness in a criminal matter.” Louisaire v. Muller, 758 F.Supp.2d 229, 235 (S.D.N.Y.2010); see 8 U.S.C. § 1226(c)(2) (setting forth circumstances under which DHS \"may release an alien described in paragraph (1)”). . See also, e.g., Hosh v. Lucero, 680 F.3d 375," }, { "docid": "16037327", "title": "", "text": "detention. (Pet. ¶¶ 69-82.) On April 7, 2014, Lora’s counsel filed an Order to Show Cause and supporting brief. (Dkt. No. 5: Application for Order to Show Cause; Dkt. No. 7: Lora Br.) On April 9, 2014, I held a telephone conference with counsel and ordered the government to submit its opposition by April 28, 2014, and Lora to submit any reply within five days of the government’s filing. (Dkt. No. 8: 4/9/14 Order.) The government’s opposition was received and has been considered. (Dkt. No. 12: Gov’t Opp. Br.) ANALYSIS I. JURISDICTION This Court has subject matter jurisdiction over Lora’s habeas corpus petition under 28 U.S.C. § 2241(c)(3). See, e.g., Louisaire v. Muller, 758 F.Supp.2d 229, 234 (S.D.N.Y.2010) (collecting cases in which courts “exercised jurisdiction to decide similar questions of statutory interpretation under the ... mandatory detention statute”). While the alien detention statute prohibits judicial review of the government’s “discretionary judgment regarding the application of this section,” 8 U.S.C. § 1226(e), “the Supreme Court has held that this provision does not deprive district courts of jurisdiction to hear petitions where, as here, the petitioner challenges the interpretation of ‘the statutory framework that permits his detention without bail.’ ” Debel v. Dubois, 13 Civ. 6028, 2014 WL 708556 at *3 (S.D.N.Y. Feb. 25, 2014) (quoting Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 1714, 155 L.Ed.2d 724 (2003)), rev’d, Dkt. No. 27: Opinion & Order (S.D.N.Y. Apr. 24, 2014). The government does not dispute this Court’s jurisdiction over Lora’s petition. (See generally Dkt. No. 12: Gov’t Opp. Br.) II. STANDARDS GOVERNING INTERPRETATION OF THE MANDATORY ALIEN DETENTION STATUTE This ease requires the Court to determine the meaning of “when the alien is released” as used in the provision governing mandatory detention of “criminal aliens,” 8 U.S.C. § 1226(c)(1). Whether Lora is being detained in violation of the statute — and, thus, whether Lora is entitled to habeas relief — is a question of statutory interpretation. A. The Mandatory Alien Detention Statute, 8 U.S.C. § 1226(c) “[FJederal law contains two distinct provisions governing an alien’s detention while removal proceedings are" }, { "docid": "20585561", "title": "", "text": "No. 14-328, 2015 WL 847395, at *8 (C.D.Cal. Feb. 23, 2015) (Snyder, J.); United States v. Lang, No. 14-390, 78 F.Supp.3d 830, 834-36, 2015 WL 327338, at *3-4 (N.D.Ill. Jan. 23, 2015) (St. Eve, J.); United States v. Shah, No. 13-328, 2015 WL 72118, at *7-9 (E.D.N.C. Jan. 6, 2015) (Flanagan, J.); United States v. Martinez, No. 13-3560, 2014 WL 5480686, at *3-5 (S.D.Cal. Oct. 28, 2014) (Hayes, J.); United States v. Rogers, No. 13-952, 2014 WL 5152543, at *3-4 (N.D.Ill. Oct. 9, 2014) (Kocoras, J.); United States v. Giddins, 57 F.Supp.3d 481, 491-94 (D.Md.2014) (Quarles, J.); United States v. Banks, 52 F.Supp.3d 1201, 1204-06 (D.Kan.2014) (Crabtree, J.); United States v. Serrano, No. 13-0058, 2014 WL 2696569, at *6-7 (S.D.N.Y. June 10, 2014) (Forrest, J.); United States v. Moreno-Nevarez, No. 13-0841, 2013 WL 5631017, at *1-2 (S.D.Cal. Oct. 2, 2013) (Benitez, J.); United States v. Rigmaiden, No. 08-814, 2013 WL 1932800, at *14 (D.Ariz. May 8, 2013) (Campbell, J.); United States v. Gordon, No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012) (Urbina, J.); United States v. Benford, No. 09-86, 2010 WL 1266507, at *2-3 (N.D.Ind. Mar. 26, 2010) (Moody, J.); In re Application of the U.S. for an Order Authorizing the Disclosure of Cell Site Location Info., No. 08-6038, 2009 WL 8231744, at *9-11 (E.D.Ky. Apr. 17, 2009) (Wier, Mag. J.); In re Applications of U.S. for Orders Pursuant to Title 18, U.S.Code Section 2703(d), 509 F.Supp.2d 76, 79-82 (D.Mass.2007) (Steams, J.). But see United States v. Cooper, No. 13-00693, 2015 WL 881578, at *6-8 (N.D.Cal. Mar. 2, 2015) (Illston, J.); In re Application of U.S.for an Order Authorizing the Release of Historical Cell-Site Info., 809 F.Supp.2d 113, 120-27 (E.D.N.Y.2011) (Garaufis, J.). . Two of the state cases do not even Interpret the Fourth Amendment, but instead rely on broader state constitutional protections. See Commonwealth v. Augustine, 467 Mass. 230, 4 N.E.3d 846, 858 (2014) (finding \"no need to wade into the[] Fourth Amendment waters” when the court could rely on article 14 of the Massachusetts Declaration of Rights); State v. Earls, 214 N.J. 564, 70 A.3d" }, { "docid": "4898834", "title": "", "text": "and has taken all well-pleaded allegations as true, as it must at this stage of the litigation. See, e.g., Peralta v. St. Luke's Roosevelt Hosp., No. 14 Civ. 2609 (KPF), 2015 WL 3947641, at *1 n.1 (S.D.N.Y. June 26, 2015). Exhibit A to the FAC, a letter sent on Plaintiff’s behalf on August 1, 2014, has itself five exhibits; for clarity, the Court will use \"Ex. [exhibit designation]” to refer to the exhibits to the FAC and \"Ltr. Ex. [exhibit designation]” to refer to the exhibits to the August l, 2014 letter. The transcript of the pre-motion conference held on June 1, 2016, is referred to as \"June 1 Tr.” (Dkt. #20). The Court notes that several significant documents, including certain of Plaintiff's communications with Defendant that underlie her claims in this lawsuit, were not included as exhibits; for these, the Court relies on Plaintiff's description of the communication. Cf. Kilgore v. Ocwen Loan Servicing, LLC, 89 F.Supp.3d 526, 538 (E.D.N.Y. 2015) (\"To plead a claim under the RESPA, plaintiff must offer proof either by attaching the letter or pleading with specificity such facts—such as when the letter was sent and to whom it was directed, why it was sent, and the contents of the letter—that the Court may determine if the letter qualifies as a [qualified written request] or notice of error.”). For convenience, Defendant’s memorandum of law in support of its motion to dismiss is referred to as “Def. Br.” (Dkt. # 23), Plaintiff's memorandum of law in opposition as “PI. Opp.” (Dkt. # 24), and Defendant's reply as “Def. Reply” (Dkt. # 30). . Plaintiff is careful not to allege that she ever defaulted on her mortgage, either before or after the loan modification. (See, e.g., FAC ¶ 7 (seeking modification \"so that [Plaintiff] would not face the prospect of near certain default in five years”)). . See Griffith-Fenton v. Chase Home Fin., No. 11 Civ. 4877 (VB), 2012 WL 2866269, at *3 (S.D.N.Y, May 29, 2012) (internal citations omitted), aff'd sub nom. Griffith-Fenton v. MERS, 531 Fed.Appx. 95 (2d Cir. 2013) (summary order): HAMP is a" }, { "docid": "15490129", "title": "", "text": "duty under § 1226(c); if an alien who meets the requirements of § 1226(c) is released from criminal custody and DHS does not immediately take him into immigration custody, DHS continues to have the duty, and therefore the authority, to take that alien into custody. The Court refers to this as the “duty-triggering” construction of the “when released” clause. Both federal courts of appeals to consider this question have adopted this construction. See Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 156-61 (3d Cir.2013); Hosh v. Lucero, 680 F.3d 375, 378-84 (4th Cir.2012). So have numerous courts in this District, see Johnson v. Orsino, 942 F.Supp.2d 396 (S.D.N.Y.2013); Santana v. Muller, No. 12 Civ. 430(PAC), 2012 WL 951768, at *4 (S.D.N.Y. Mar. 21 2012); Guillaume v. Muller, No. 11 Civ. 8819(TPG), 2012 WL 383939, at *4 (S.D.N.Y. Feb. 7, 2012); Mendoza v. Muller, No. 11 Civ. 7857(RJS), 2012 WL 252188, at *3 (S.D.N.Y. Jan. 25, 2012); Gomez v. Napolitano, No. 11- Civ. 1350(JSR), 2011 WL 2224768, at *3 (S.D.N.Y. May 31, 2011); Sulayao v. Shanahan, No. 09 Civ. 7347(PKC), 2009 WL 3003188, at *5 (S.D.N.Y. Sept. 15, 2009), and outside of it, see, e.g., Cisneros v. Napolitano, Civil No. 13-700 (JNE/JJK), 2013 WL 3353939, at *1 (D.Minn. July 3, 2013) (adopting report and recommendation); Silent v. Holder, No. 4:12-cv-00075-IPJ-HGD, 2012 WL 4735574, at *2 (N.D.Ala. Sept. 27, 2012); Khetani v. Petty, 859 F.Supp.2d 1036, 1038-39 (W.D.Mo.2012); Garcia Valles v. Rawson, No. 11-C-0811, 2011 WL 4729833 (E.D.Wis. Oct. 7, 2011). As a matter of textual interpretation, although neither reading is conclusive, the Court finds DHS’s reading (that the word “when” triggers its duty and authority to pursue mandatory detention) more persuasive than Straker’s (under which DHS’s authority to achieve mandatory deportation exists only where it takes the alien into custody immediately upon an alien’s release). Section 1226(c)(1) does not expressly put a time limit on DHS’s mandatory detention authority. There were ready ways for Congress to set an outside deadline on agency action: Had Congress so intended, it could have given DHS a timetable to effect a mandatory detention after" }, { "docid": "2244796", "title": "", "text": "of this order, I assume arguen-do that Araujo-Cortes was \"release[d]” in April 2009 when he was sentenced to a three-year term of probation. Araujo-Cortes denies that he was released at all, since he was never taken into custody as a result of his criminal sentence. I note that Araujo-Cortes’ position is supported by this Court’s decision in Masih v. Aviles, 14 CIV. 0928 JCF, 2014 WL 2106497, at *2-4 (S.D.N.Y. May 20, 2014), which held that a non-citizen who has never been subjected to physical custody as a result of a conviction, has not been \"release[d]” and is therefore not subject to' mandatory detention under § 1226(c). I do not consider the issue now though because I rule that Araujo-Cortes is not subject to mandatory detention on other grounds. . See, e.g., Garcia, 615 F.Supp.2d at 180-81 (McMahon, J.) (“For over a decade, courts analyzing § 1226(c) have consistently interpreted the statute to authorize the government to take an alien into custody on or about the time he is released from custody for the offense that renders him removable.”); Scarlett v. U.S. Dep't of Homeland Sec. Bureau of Immigration & Customs Enforcement, 632 F.Supp.2d 214, 219-20 (W.D.N.Y.2009) (collecting cases in which several district courts hold that § 1226(c) does not apply when the alien was not taken into immigration custody at the time of his release); Quezada-Bucio v. Ridge, 317 F.Supp.2d 1221, 1230 (W.D.Wash. 2004) (declining to defer to Matter of Rojas); Lora v. Shanahan, 14 Civ. 2140, 15 F.Supp.3d 478, 2014 WL 1673129 (S.D.N.Y. Apr. 29, 2014) (Peck, J.) (same); Aparicio v. Muller, No. 11 Civ. 437 (S.D.N.Y. Apr. 7, 2011) (Kaplan, J.) (same); Jean v. Orsino, No. 11 Civ. 3682 (S.D.N.Y. June 30, 2011) (Swain, J.) (same). I note, however, that a number of judges, including judges in this district, have rejected this argument. See, e.g., Straker v. Jones, 986 F.Supp.2d 345 (S.D.N.Y.2013) (Engelmayer, J.); Santana v. Muller, 12 CIV. 430 PAC, 2012 WL 951768 (S.D.N.Y. Mar. 21, 2012) (Crotty, J.); Guillaume v. Muller, 11 CIV. 8819 TPG, 2012 WL 383939 (S.D.N.Y. Feb. 7, 2012) (Griesa, J.); Mendoza" }, { "docid": "2244797", "title": "", "text": "that renders him removable.”); Scarlett v. U.S. Dep't of Homeland Sec. Bureau of Immigration & Customs Enforcement, 632 F.Supp.2d 214, 219-20 (W.D.N.Y.2009) (collecting cases in which several district courts hold that § 1226(c) does not apply when the alien was not taken into immigration custody at the time of his release); Quezada-Bucio v. Ridge, 317 F.Supp.2d 1221, 1230 (W.D.Wash. 2004) (declining to defer to Matter of Rojas); Lora v. Shanahan, 14 Civ. 2140, 15 F.Supp.3d 478, 2014 WL 1673129 (S.D.N.Y. Apr. 29, 2014) (Peck, J.) (same); Aparicio v. Muller, No. 11 Civ. 437 (S.D.N.Y. Apr. 7, 2011) (Kaplan, J.) (same); Jean v. Orsino, No. 11 Civ. 3682 (S.D.N.Y. June 30, 2011) (Swain, J.) (same). I note, however, that a number of judges, including judges in this district, have rejected this argument. See, e.g., Straker v. Jones, 986 F.Supp.2d 345 (S.D.N.Y.2013) (Engelmayer, J.); Santana v. Muller, 12 CIV. 430 PAC, 2012 WL 951768 (S.D.N.Y. Mar. 21, 2012) (Crotty, J.); Guillaume v. Muller, 11 CIV. 8819 TPG, 2012 WL 383939 (S.D.N.Y. Feb. 7, 2012) (Griesa, J.); Mendoza v. Muller, 11 CIV. 7857 RJS, 2012 WL 252188 (S.D.N.Y. Jan. 25, 2012) (Sullivan, J.); Gomez v. Napolitano, 11 CIV. 1350 JSR, 2011 WL 2224768 (S.D.N.Y. May 31, 2011) (Rakoff, J.). . I am not the only judge unpersuaded by these decisions. See, e.g., Boquera v. Longshore, 948 F.Supp.2d 1258, 1263-65 (D.Colo. 2013) (rejecting the reasoning of Hosh and Sylvain); Deluis-Morelos v. ICE Field Office Director, No. C12-1905-JLR, 2013 WL 1914390, at *4-6 (W.D.Wash. May 8, 2013) (same); Rosciszewski v. Adducci, 983 F.Supp.2d 910, 916 (E.D.Mich.2013) (same); Khoury v. Asher, C13-1367RAJ, 3 F.Supp.3d 877, 2014 WL 954920 (W.D.Wash. Mar. 11, 2014) (same); Castaneda, 952 F.Supp.2d at 315-17 (same); Sanchez Gamino v. Holder, CV 13-5234 RS, 6 F.Supp.3d 1028, 2013 WL 6700046 (N.D.Cal. Dec. 19, 2013) (same); Castillo v. ICE Field Office Dir., 907 F.Supp.2d 1235, 1239 (W.D.Wash.2012) (rejecting the reasoning of Hosh)) BogarinFlores v. Napolitano, 12CV0399 JAH WMC, 2012 WL 3283287 (S.D.Cal. Aug. 10, 2012) (same). . In Matter of Rojas, the BIA took the position that the “when ... released clause” in § 1226(c)(1)" }, { "docid": "488807", "title": "", "text": "not include non-citizens such as Rodriguez who are taken into DHS custody years after release. B. Violation of Due Process Because Rodriguez is detained under Section 236(a), he must be provided with an individualized bond hearing. The failure to provide him one violates due process. Although detention is a “constitutionally permissible part” of removal proceedings, the proceedings still must respect the requirements of due process. Demore, 538 U.S. at 559, 123 S.Ct. 1708 (citing Zadvydas, 533 U.S. at 695, 121 S.Ct. 2491). “If the government cannot satisfy [the threshold burden of showing the relationship between detention and its purpose,] then the permissibility of continued detention pending deportation proceedings turns solely upon the alien’s ability to satisfy the ordinary bond procedures....” Id. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring). Rodriguez’s “continued detention without an individualized hearing to determine whether he is a flight risk or a danger to the community is inconsistent with the United States Constitution.” Araujo-Cortes, 35 F.Supp.3d at 550, 2014 WL 3843862, at *14. CONCLUSION The petitioner’s habeas corpus petition is GRANTED. The government is ordered to provide Rodriguez with an individualized bond hearing pursuant to Section 236(a) within ten days of this Order. If the Immigration Court fails to provide a hearing within ten days, respondents shall pelease Rodriguez from custody. SO ORDERED. . Congress separately provided for the immigration detention of non-citizens after a removal order against them becomes \"administratively final.” 8 U.S.C. § 1231(a)(l)(B)(i). See Guerra v. Shanahan, 14 Civ. 4203(KMW), 2014 WL 7330449 (S.D.N.Y. Dec. 23, 2014) (discussing when a petitioner may be detained pursuant to 8 U.S.C. § 1231 as compared to 8 U.S.C. § 1226). . \"Originally, the authority and duties imposed by [Section 236(c) ] were those of the Attorney General; today, they belong to DHS.” Straker v. Jones, 986 F.Supp.2d 345, 351 (S.D.N.Y.2013) (citing 6 U.S.C. §§ 202, 251, 557; Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir.2010); United States v. Rios-Zamora, 153 Fed.Appx. 517, 520-21 (10th Cir.2005) (\"With the transfer of authority under 6 U.S.C. § 557, as of March 1, 2003, the title 'Attorney Genera! is" }, { "docid": "488766", "title": "", "text": "determination before an Immigration Judge (“IJ”). The IJ denied the request finding that Rodriguez was subject to mandatory detention without bond pursuant to INA § 236(c). (Resp. Ex. 5: Order of IJ with Respect to Custody.) The IJ scheduled a master calendar hearing for February 23, 2015, to discuss a schedule to address Rodriguez’s anticipated petition for cancellation of removal. II. Habeas Corpus Petition Background On December 12, 2014, Rodriguez filed this petition for writ of habeas corpus. On December .29, 2014, the government filed their response in opposition to Rodriguez’s writ. On January 5, 2015, Rodriguez filed a reply memorandum in support of his petition. The Court heard oral argument in the matter on January 14, 2015. The parties consented to the Court’s jurisdiction of this case, pursuant to 28 U.S.C. § 636(c). DISCUSSION I. Jurisdiction The Court has subject matter jurisdiction to review Rodriguez’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). See, e.g., Lora v. Shanahan, 15 F.Supp.3d 478, 482 (S.D.N.Y.2014); Louisaire v. Muller, 758 F.Supp.2d 229, 234 (S.D.N.Y.2010). The INA precludes judicial review of DHS’s discretionary judgment regarding a non-citizen’s detention or release. 8 U.S.C. § 1226(e). But the statute does not preclude courts from conducting habeas review based on an interpretation of the statutory framework governing immigration detention. Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). See also Henderson v. I.N.S., 157 F.3d 106, 119-22 (2d Cir.1998) (habeas re view extends to statutory questions in the context of immigration removal proceedings). II. Immigration Detention under INA § 236 A. Discretionary and Mandatory Immigration Detention During Removal Proceedings The INA provides for two types of immigration detention during the pendency of removal proceedings. While the “proceedings are in progress, most aliens may be released on bond or paroled.” Zadvydas v. Davis, 533 U.S. 678, 683, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing 8 U.S.C. § 1226). First, Section 236(a) provides for the general immigration detention, “except as provided in subsection (e),” of non-citizens in removal proceedings. DHS has discretion over whether to detain or" }, { "docid": "488778", "title": "", "text": "have resulted in an avalanche of litigation in this circuit and elsewhere. The debate turns on whether “when the alien is released” means (1) immediately, at or near, or within a reasonable time of release, or (2) simply any time after release without temporal limitation. The Court of Appeals for the Second Circuit has yet to address the question. The vast majority of district courts, including those in this District as well as the Court of Appeals for the First Circuit, have favored the first interpretation. See, e.g., Martinez-Done v. McConnell, 56 F.Supp.3d 535, 538-39, 14 Civ. 3071(SAS), 2014 WL 5032438, at *3 (S.D.N.Y. Oct. 8, 2014) (collecting cases); Araujo-Cortes v. Shanahan, 35 F.Supp.3d 533, 14 Civ. 423KAKH), 2014 WL 3843862 (S.D.N.Y. Aug. 5, 2014); Lora, 15 F.Supp.3d 478; Castaneda I, 769 F.3d 32. Fewer courts, including those in this district as well as the Courts of Appeals for the Third and Fourth Circuits, have adopted the temporally unlimited interpretation. See, e.g., Straker, 986 F.Supp.2d 345; Sylvain v. Att’y Gen., 714 F.3d 150 (3d Cir.2013); Hosh v. Lucero, 680 F.3d 375 (4th Cir.2012). This Court joins those courts that have found the word “when” to be unambiguous. Congress commanded DHS to detain certain criminal non-citizens “when ... released” in order to ensure a pipeline from criminal custody to immigration detention to promote important policy interests.- If DHS fails to comply with this statutory directive, as it did here, DHS must present sufficient evidence at a bail hearing that the non-citizen poses a relevant threat or flight risk and should be detained. Rodriguez is entitled to such a hearing. A. Interpreting INA § 236’s Mandatory Detention Scheme To interpret a statute, the Court first looks to the “plain language” used by Congress. In re Ames Dep’t Stores, Inc., 582 F.3d 422, 427 (2d Cir.2009) (citing Universal Church v. Geltzer, 463 F.3d 218, 223 (2d Cir.2006)). See, e.g., I.N.S. v. Car-dozar-Fonseca, 480 U.S. 421, 431-33, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir.2013). Where a statute does not define its terms, the Court applies" }, { "docid": "16037328", "title": "", "text": "jurisdiction to hear petitions where, as here, the petitioner challenges the interpretation of ‘the statutory framework that permits his detention without bail.’ ” Debel v. Dubois, 13 Civ. 6028, 2014 WL 708556 at *3 (S.D.N.Y. Feb. 25, 2014) (quoting Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 1714, 155 L.Ed.2d 724 (2003)), rev’d, Dkt. No. 27: Opinion & Order (S.D.N.Y. Apr. 24, 2014). The government does not dispute this Court’s jurisdiction over Lora’s petition. (See generally Dkt. No. 12: Gov’t Opp. Br.) II. STANDARDS GOVERNING INTERPRETATION OF THE MANDATORY ALIEN DETENTION STATUTE This ease requires the Court to determine the meaning of “when the alien is released” as used in the provision governing mandatory detention of “criminal aliens,” 8 U.S.C. § 1226(c)(1). Whether Lora is being detained in violation of the statute — and, thus, whether Lora is entitled to habeas relief — is a question of statutory interpretation. A. The Mandatory Alien Detention Statute, 8 U.S.C. § 1226(c) “[FJederal law contains two distinct provisions governing an alien’s detention while removal proceedings are pending.” Straker v. Jones, 13 Civ. 6915, 986 F.Supp.2d 345, 351, 2013 WL 6476889 at *4 (S.D.N.Y. Dec. 10, 2013); see 8 U.S.C. § 1226(a), (c). The first provision provides for detention during removal proceedings subject to an individualized bond hearing. 8 U.S.C. § 1226(a). Under the second provision, entitled “Detention of criminal aliens,” aliens falling within certain enumerated categories “shall” be mandatorily detained without a hearing. 8 U.S.C. § 1226(c). “The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply.” Saysana v. Gillen, 590 F.3d 7, 17 (1st Cir.2009); accord, e.g., Castaneda v. Souza, 952 F.Supp.2d 307, 316 (D.Mass.2013) (“[I]ndi-vidualized bond hearings are the norm and mandatory detention is the exception in section 1226.”). In relevant part, the mandatory detention provision of § 1226(c) provides: The Attorney General shall take into custody any alien who— (A) is inadmissible by reason of having committed any offense" }, { "docid": "15490127", "title": "", "text": "District have adopted it. See Jean v. Orsino, No. 11 Civ. 3682(LTS) (S.D.N.Y. June 30, 2011) (oral decision attached as Appendix A to Straker Br.); Aparicio v. Muller, No. 11 Civ. 0437(RJH) (S.D.N.Y. April. 7, 2011) (same); Louisaire v. Muller, 758 F.Supp.2d 229, 236 (S.D.N.Y.2010); Monestime v. Reilly, 704 F.Supp.2d 453, 458 (S.D.N.Y.2010); Garcia v. Shanahan, 615 F.Supp.2d 175, 182 (S.D.N.Y.2009). So have a number of district courts elsewhere. See, e.g., Castaneda v. Souza, 952 F.Supp.2d 307, 316-17 (D.Mass.2013); Gomez-Ramirez v. Asher, No. C13-196-RAJ, 2013 WL 2458756, at *3 (W.D.Wash. June 5, 2013); Bacquera v. Longshore, No. 13-ev-00543-RM-MEH, 2013 WL 2458756, at *4 (D. Colo. June 4, 2013); Deluis-Morelos v. ICE Field Office Dir., No. 12CV-1905JLR, 2013 WL 1914390, at *5 (W.D.Wash. May 8, 2013); Dighero-Castaneda v. Napolitano, No. 2:12-cv-2367 DAD, 2013 WL 1091230, at *7 (E.D.Cal. Mar. 15, 2013); Bogarin-Flores v. Napolitano, No. 12cv0399 JAH (WMC), 2012 WL 3283287, at *3 (S.D.Cal. Aug. 10, 2012); Ortiz v. Holder, No. 2:11CV1146 DAK, 2012 WL 893154, at *3 (D.Utah Mar. 14, 2012); Khodr v. Adduci, 697 F.Supp.2d 774 (E.D.Mich.2010); Scarlett v. U.S. Dep’t of Homeland Sec., 632 F.Supp.2d 214, 219 (W.D.N.Y.2009); Zabadi v. Chertoff, No. C 05-03335, 2005 WL 3157377 (N.D.Cal. Nov. 22, 2005); Quezada-Bucio v. Ridge, 317 F.Supp.2d 1221 (W.D.Wash.2004). DHS reads the word “when” differently — as creating a pre-condition for DHS to exercise its mandatory detention authority, but not as setting a deadline for its use. This interpretation was adopted by the BIA in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). There, the BIA held that “this statutory language impose[s] a duty on the Service to assume the custody of certain criminal aliens and specifie[s] the point in time at which that duty arises.” Id. at 121 (citations omitted). The BIA further explained that the “when released” clause “modifies] the command that the Attorney General [now DHS] shall take into custody certain criminal aliens by specifying that it be done when the alien is released from criminal incarceration.” Id. Under this interpretation, the “when released” clause does not place an expiration date on DHS’s" }, { "docid": "20585560", "title": "", "text": "analysis, in non-trespassory cases, depending on whether the information at issue was voluntarily disclosed to a third party. See Smith, 442 U.S. at 743-44, 99 S.Ct. 2577. Perhaps, in accord with the two lower court cases the majority cites, the Court will someday conclude that, given long-established statutory and common-law protections, the third-party doctrine does not apply to information a patient reveals to a doctor or a client to a lawyer — i.e., that the patient and client do have reasonable expectations of privacy in information conveyed in the course of these confidential relationships. But see 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.7(d) (5th ed. 2012 & Supp. 2014). Clearly, however, the Court has already declined to recognize any reasonable expectation of privacy for information a phone company customer provides to the phone company. See Smith, 442 U.S. at 743-44, 99 S.Ct. 2577. . See, e.g., United States v. Epstein, No. 14-287, 2015 WL 1646838, at *4 (D.N.J. Apr. 14, 2015) (Wolfson, J.); United States v. Dorsey, No. 14-328, 2015 WL 847395, at *8 (C.D.Cal. Feb. 23, 2015) (Snyder, J.); United States v. Lang, No. 14-390, 78 F.Supp.3d 830, 834-36, 2015 WL 327338, at *3-4 (N.D.Ill. Jan. 23, 2015) (St. Eve, J.); United States v. Shah, No. 13-328, 2015 WL 72118, at *7-9 (E.D.N.C. Jan. 6, 2015) (Flanagan, J.); United States v. Martinez, No. 13-3560, 2014 WL 5480686, at *3-5 (S.D.Cal. Oct. 28, 2014) (Hayes, J.); United States v. Rogers, No. 13-952, 2014 WL 5152543, at *3-4 (N.D.Ill. Oct. 9, 2014) (Kocoras, J.); United States v. Giddins, 57 F.Supp.3d 481, 491-94 (D.Md.2014) (Quarles, J.); United States v. Banks, 52 F.Supp.3d 1201, 1204-06 (D.Kan.2014) (Crabtree, J.); United States v. Serrano, No. 13-0058, 2014 WL 2696569, at *6-7 (S.D.N.Y. June 10, 2014) (Forrest, J.); United States v. Moreno-Nevarez, No. 13-0841, 2013 WL 5631017, at *1-2 (S.D.Cal. Oct. 2, 2013) (Benitez, J.); United States v. Rigmaiden, No. 08-814, 2013 WL 1932800, at *14 (D.Ariz. May 8, 2013) (Campbell, J.); United States v. Gordon, No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012) (Urbina," }, { "docid": "488777", "title": "", "text": "(Kennedy, J., concurring). Although the Court’s decision did not articulate limits on the permissibility of mandatory detention, Justice Kennedy stated — in a concurring opinion providing the fifth vote for a majority on the judgment — that: due process requires individualized procedures to ensure there is at least some merit to the [INS] charge and, therefore, sufficient justification to detain [an LPR] pending a more formal hearing .... [S]inee the Due Process Clause prohibits arbitrary deprivations of liberty, [an LPR] such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.... Were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is \"not to facilitate deportation, or to protect against'risk of flight or dangerousness, but to incarcerate for other reasons. Id. at 531-33, 123 S.Ct. 1708 (Kennedy, J., concurring) (citations omitted). III. Analysis Disputes over the meaning of Section 236(c)’s “when ... released” clause have resulted in an avalanche of litigation in this circuit and elsewhere. The debate turns on whether “when the alien is released” means (1) immediately, at or near, or within a reasonable time of release, or (2) simply any time after release without temporal limitation. The Court of Appeals for the Second Circuit has yet to address the question. The vast majority of district courts, including those in this District as well as the Court of Appeals for the First Circuit, have favored the first interpretation. See, e.g., Martinez-Done v. McConnell, 56 F.Supp.3d 535, 538-39, 14 Civ. 3071(SAS), 2014 WL 5032438, at *3 (S.D.N.Y. Oct. 8, 2014) (collecting cases); Araujo-Cortes v. Shanahan, 35 F.Supp.3d 533, 14 Civ. 423KAKH), 2014 WL 3843862 (S.D.N.Y. Aug. 5, 2014); Lora, 15 F.Supp.3d 478; Castaneda I, 769 F.3d 32. Fewer courts, including those in this district as well as the Courts of Appeals for the Third and Fourth Circuits, have adopted the temporally unlimited interpretation. See, e.g., Straker, 986 F.Supp.2d 345; Sylvain v. Att’y Gen., 714 F.3d 150 (3d Cir.2013);" }, { "docid": "9523728", "title": "", "text": "[section 236(c) ] has been litigated extensively in federal courts\"). . See, e.g., Louisaire v. Muller, 758 F.Supp.2d 229, 236 (S.D.N.Y.2010). . See Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). . Straker v. Jones, 986 F.Supp.2d 345, 352 (S.D.N.Y.2013). . Id. . Id. at 352-53. . See id. (Judge Engelmayer). See also Johnson v. Orsino, 942 F.Supp.2d 396 (S.D.N.Y.2013) (Judge Castel); Santana v. Muller, No. 12 Civ. 430, 2012 WL 951768 (S.D.N.Y. Mar. 21, 2012) (Judge Crotty); Guillaume v. Muller, No. 11 Civ. 8819, 2012 WL 383939 (S.D.N.Y. Feb. 7, 2012) (Judge Griesa); Mendoza v. Muller, No. 11 Civ. 7857, 2012 WL 252188 (S.D.N.Y. Jan. 25, 2012) (Judge Sullivan); Gomez v. Napolitano, No. 11 Civ. 1350, 2011 WL 2224768 (S.D.N.Y. May 31, 2011) (Judge Rakoff). . See Araujo-Cortes, 35 F.Supp.3d 533, 2014 WL 3843862 (Judge Hellerstein). See also Louisaire, 758 F.Supp.2d at 235-37 (Judge McMahon); Lora, 15 F.Supp.3d 478 (Judge Peck); Aparicio v. Muller, No. 11 Civ. 437 (S.D.N.Y. Apr. 7, 2011) (oral decision) (Judge Kaplan); Jean v. Orsino, No. 11 Civ. 3682 (S.D.N.Y. Jun. 30, 2011) (oral decision) (Judge Swain). This split is not unique to the Southern District. It is reflected in district courts throughout the country. See Straker, 986 F.Supp.2d at 352-53 (collecting cases). . See Hosh v. Lucero, 680 F.3d 375 (4th Cir.2012). See also Sylvain v. Attorney Gen., 714 F.3d 150 (3d Cir.2013). . See Saysana v. Gillen, 590 F.3d 7, 16-18 (1st Cir.2009) (expressing skepticism about the government’s sweeping interpretation of mandatory detention power under section 236(c)). . See Straker, 986 F.Supp.2d at 357-60; Lora, 15 F.Supp.3d at 491-94. But see Gonzalez-Ramirez v. Secretary of U.S. Dep't of Homeland Sec., 529 Fed.Appx. 177, 181 (3d Cir.2013) (holding that \"because [the alien] was released from pre-conviction custody following his arrest, he was subject to mandatory detention” under section 236(c)). . Matter of West, 22 I. & N. Dec. 1405, 1410 (BIA 2000). . 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). . Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir.2013) (citing Chevron, 467 U.S. at 842, 104 S.Ct." } ]

[ { "docid": "13807791", "title": "", "text": "claims “when the ‘fraud contemplated by the plaintiff ... does not seem to be extraneous to the contract, but rather on fraudulent performance of the contract itself.’ ” Id. (quoting Foodtown v. Sigma Marketing Systems, Inc., 518 F.Supp. 485, 490 (D.N.J.1980)). The court distinguished claims for fraudulent performance from claims for fraudulent inducement and found that only .the former are barred. See id. In Werner & Pfleiderer, the district court, relying on Unifoil, dismissed a commercial party’s claims for common law fraud and fraud under the Consumer Fraud Act. See Werner & Pfleiderer, 697 F.Supp. at 814-15. There, the buyer alleged that the seller sold a machine without disclosing that it did not meet the guaranteed production rates contained in the sales contract. See id. at 814. Because the dispute was “essentially contractual in nature” and the contract provided for a remedy if the machine were defective, the court found only contractual or UCC remedies to be appropriate Id. at 815. However, subsequent New Jersey federal and state cases have permitted fraud claims to stand in breach of contract eases. See Lo Bosco v. Kure Engineering Ltd., 891 F.Supp. 1020 (D.N.J.1995) (individual may sue alleged joint venture partner for fraud as well as breach of contract); First Valley Leasing, Inc. v. Goushy, 795 F.Supp. 693 (D.N.J.1992) (equipment purchaser may bring fraud and Consumer Fraud Act claims alongside breach of contract claim) Coastal Group, Inc. v. Dryvit Systems, Inc., 274 N.J.Super. 171, 643 A.2d 649 (App.Div.1994) (commercial buyer seeking damages for economic losses resulting from defective product could also pursue common law fraud and consumer fraud claims), D’Angelo v. Miller Yacht Sales, 261 N.J.Super. 683, 619 A.2d 689 (App.Div.1993) (consumer buyer of defective, yacht may bring fraud and Consumer Fraud Act claims) Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J.Super. 200, 543 A.2d 1020 (App.Div.1988) (commercial buyer of a defective yacht may seek punitive damages for alleged fraud), aff'd, 118 N.J. 249, 571 A.2d 294 (1990). Many of these courts have noted that the UCC expressly preserves a buyer’s right to maintain a cause of action for" } ]

[ { "docid": "13807788", "title": "", "text": "to warrant dismissal. It is reasonable to infer that a corporation would be familiar with the content of its sales contracts so that any inaccurate representation would be knowingly made. Although Cardinal complains that the consumer fraud count merely recites statutory language, the count specifically incorporates by reference the specific alleged misrepresentations that support the common law claim. These same statements may also form the factual basis for a Consumer Fraud Act violation. The Court finds that the claims are plead with sufficient particularity to permit Cardinal to prepare a responsive pleading. Flori-an has adequately plead the factual predicate for the claims by alleging the nature, context, and content of the misrepresentations. Whether defendant knowingly misrepresented information with the intent that Florian rely on it are matters to be fleshed out during discovery and at trial. III. Whether the Nature of this Action Limits Plaintiff to Contractual Remedies - Cardinal argues that the tort claims are precluded because a commercial party who sues for breach of a sales contract may not recover tort damages for purely economic loss. Defendant relies on three cases to support its position: Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985); Werner & Pfleiderer Corp. v. Gary Chemical Corp., 697 F.Supp. 808 (D.N.J.1988); and Unifoil Corp. v. Cheque Printers & Encoders, Ltd., 622 F.Supp. 268 (D.N.J.1985). In Spring Motors, the New Jersey Supreme Court held that a commercial buyer’s remedy for purely economic loss resulting from the sale of a defective product is under the Uniform Commercial Code (“UCC”) for breach of warranty, not under the tort theories of strict liability or negligence. See Spring Motors, 98 N.J. at 578, 489 A.2d 660. The decision was in large part based on the distinction drawn by the court between tort and contractual principles: The purpose of a tort duty of care is to protect society’s interest in freedom from harm, i.e., the duty arises from policy considerations formed without reference to any agreement between the parties. A contractual duty, by comparison, arises from society’s interest in the performance of promises." }, { "docid": "9606831", "title": "", "text": "Enright Refining Co., 577 F.Supp. 339 (D.N.J. 1983), modified, 751 F.2d 628 (3d Cir.1984). The plaintiff in Enright Refining was a jewelry manufacturer who contracted with the defendant to refine the plaintiff’s scrap gold. During the course of their contractual dealings, the defendant began retaining some of the refined metal in addition to the monetary fee it received to refine the gold. The plaintiff was not informed of this change, the defendant issued reports to plaintiff which concealed this retainage, and the plaintiff continued to use the defendant’s services. Judge Fisher found that the defendant’s retaining of the gold without disclosure was a breach of contract and also constituted fraudulent misrepresentation. See also, Perth Amboy Iron Works v. Am Home, 226 N.J.Super. 200, 543 A.2d 1020 (App.Div.1988) (plaintiff potentially had a fraudulent misrepresentation action based on allegations that defendant’s fraud caused plaintiff to buy a yacht and to retake possession of it after repairs to engine were made); Shaitelman v. Phoenix Mut. Life Ins. Co., 517 F.Supp. 21, 23 (S.D.N.Y.1980) (“Here, the defendant allegedly breached a duty independent of the contract by making affirmative misrepresentations to induce plaintiff’s continuing performance and reliance. Upon these circumstances, a claim for fraudulent misrepresentation pleaded with a claim for breach of contract will survive a motion to dismiss”); cf. H. Rosenblum v. Adler, 93 N.J. 324, 461 A.2d 138, 143 (1983) (“Recovery of economic loss, due to negligent misrepresentation by one furnishing a service, has long been permitted when there existed a direct contractual relationship between the parties ... ”). And in the products context, Senior Judge Cohen held that a tort remedy did exist for a commercial fisherman who alleged that the defendant failed to warn him of a defect it discovered after selling the fisherman a crankshaft for his fishing boat. The crankshaft exploded ad the fisherman suffered economic losses. The court distinguished between a strict liability claim for manufacturing a defective product and an allegation that the defendant failed to warn the plaintiff of a danger it learned about after the sale: Whatever the merits of adopting a rule that views" }, { "docid": "13807790", "title": "", "text": "Generally speaking, tort principles, such as negligence, are better suited for resolving claims involving unanticipated physical injury, particularly thpse arising out of an accident. Contract principles, on the other hand, are generally more appropriate for determining claims for consequential damages that the parties have, or could have, addressed in their agreement. Id. at 579-80, 489 A.2d 660. Spring Motors addressed only the viability of strict liability and negligence claims in a breach of contract case. Defendant cites Werner & Pfleiderer and Unifoil for the proposition that New Jersey law prohibits all remedies grounded in tort in commercial contractual disputes where the plaintiff seeks recovery for purely economic losses. Like Spring Motors, both of these eases involve UCC breach of warranty claims arising from the sale of a defective product. In Unifoil,' the district court dismissed a common law fraud charge stemming from the supply of a product that did not meet the specifications in the purchase order. See Unifoil, 622 F.Supp. at 271. The district court extended the rationale of Spring Motors to preclude fraud claims “when the ‘fraud contemplated by the plaintiff ... does not seem to be extraneous to the contract, but rather on fraudulent performance of the contract itself.’ ” Id. (quoting Foodtown v. Sigma Marketing Systems, Inc., 518 F.Supp. 485, 490 (D.N.J.1980)). The court distinguished claims for fraudulent performance from claims for fraudulent inducement and found that only .the former are barred. See id. In Werner & Pfleiderer, the district court, relying on Unifoil, dismissed a commercial party’s claims for common law fraud and fraud under the Consumer Fraud Act. See Werner & Pfleiderer, 697 F.Supp. at 814-15. There, the buyer alleged that the seller sold a machine without disclosing that it did not meet the guaranteed production rates contained in the sales contract. See id. at 814. Because the dispute was “essentially contractual in nature” and the contract provided for a remedy if the machine were defective, the court found only contractual or UCC remedies to be appropriate Id. at 815. However, subsequent New Jersey federal and state cases have permitted fraud claims to stand" }, { "docid": "13807793", "title": "", "text": "fraud. See N.J.S.A. 12A: 1-103 (“Unless displaced by particular provisions of this Act, the principles of law and equity, including ... the law relative to ... fraud [and] misrepresentation ... shall supplement [the UCC’s] provisions.”). This provision is inconsistent with the expansive interpretation of Spring Motors adopted in Unifoil and Werner & Pfleiderer. See First Valley Leasing, 795 F.Supp. at 700; Coastal Group, 274 N.J.Super. at 178, 643 A.2d 649. Confronted with the “morass” of case law in this area, the Third Circuit commented that “the continuing validity of fraud claims in cases involving frustrated economic expectations under New Jersey law is very complex and troublesome.” Vanguard Telecommunications, Inc. v. Southern New England Tel. Co., 900 F.2d 645, 653 (3d Cir.1990). The New Jersey Supreme Court, though, recently explicitly stated that commercial entities may resort to noncontractual remedies in UCC actions: “In addition to the right to recover under the U.C.C., victims of fraud or unconscionable conduct possess substantial rights to recover for common-law fraud or for violations of various state and federal statutes.” Alloway v. General Marine Indus., 149 N.J. 620, 639-40, 695 A.2d 264 (1997). Unifoil and Werner & Pfleiderer are also readily distinguishable from the present case. Florian does not allege that Cardinal delivered defective goods. Rather it bases its breach of contract claim on the defendant’s nonperformance after February 1, 1997. Also, this is not simply a “garden variety breach of contract case[.]” First Valley Leasing, 795 F.Supp. at 699. Plaintiff contends that, during negotiations, Cardinal misrepresented the extent to which its exclusive arrangement with Four Seasons would impede its ability to deliver the LoE2® glass.This more closely resembles a fraud in the inducement claim which even the Unifoil court acknowledged would be cognizable. See Unifoil, 622 F.Supp. at 271. The factual basis for the alleged fraud is extraneous to the contract — it does not involve nonfulfillment of a warranty or guarantee contained within the contract itself. Nor does it arise from misrepresentation concerning the character of defective goods as was the case in both Unifoil and Werner & Pfleiderer. Instead, the fraud counts fall" }, { "docid": "9606786", "title": "", "text": "the contract, but rather on fraudulent performance of the contract itself.” Id. at 270-71 (quoting Foodtown v. Sigma Marketing Systems, Inc., 518 F.Supp. 485, 490 (D.N.J.1980)); see also, Unifoil Corp. v. CNA Ins. Cos., 218 N.J.Super. 461, 528 A.2d 47, 51 (App.Div.1987). Similarly, Judge Wolin of this district recently dismissed a fraud complaint based on allegations that a party had sold a plastic processing machine with the knowledge that the machine would not meet contractual specification. In so deciding, he followed Cheque Printers and held that fraudulent performance of a contract between two commercial entities, as opposed to fraud extraneous to the contract, is not compen-sable in tort. Werner & Pfleiderer Corp. v. Gary Chemical Corp., 697 F.Supp. 808 (D.N.J.1988). In the power plant context, a federal court has held that a fraudulent breach of contract does not give rise to a separate tort action. In Public Service Co. of N.H. v. Westinghouse Elec. Co., 685 F.Supp. 1281 (D.N.H.1988), the complaint alleged that the defendant fraudulently concealed facts about two failing turbine blades in a steam turbine electric generator which defendant supplied to the plaintiff. The plaintiff contended that if it had been told the true facts it would have had the blades inspected and would have avoided a subsequent breakdown and a resulting shutdown of the power plant. The court indicated that defendant’s duty to warn arose from the terms of the contract, rather than any common law duty. Id. at 1290. The gravamen of plaintiffs fraud claim was that it did not get the benefit of its bargain because the defendant’s withholding of information breached the defendant’s contractual duty to exercise reasonable professional knowledge and judgment. Id. As such, the plaintiff did not have an independent fraud claim under tort law. Instead, these allegations were properly regarded as another way of stating a claim for breach of contract. Id.; see also, Nissho-Iwai Co. Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1550-51 (5th Cir.1984); Flow Industries, Inc. v. Fields Const. Co., 683 F.Supp. 527 (D.Md. 1988); Pandjiris, Inc. v. Sunshine Stainless Tank & Equip., 655 F.Supp. 473" }, { "docid": "9884794", "title": "", "text": "at 19, not that the plaintiff participated in a separate “event” based on statements contained in the contract, as plaintiff currently asserts. Further, damages sought on this count are recoverable as contract damages. As stated above, Holdings is in the position to collect the $200 million payment in damages if they prove breach of the contract and that the payment was part of the consideration for their performance. The allegations make this clear. As this Court has noted, “[i]f the Plaintiffs cannot allege any damages apart from damages also asserted for the fraud in the underlying ... contract ..., this fact alone is an indication that a court should dismiss the charge of fraudulent inducement.” Bruce v. Martin, 1993 WL 148904 (S.D.N.Y.1993) (citing, 725 F.Supp. 1286, 1294 (S.D.N.Y.1989)). New Jersey law is similarly unavailing to Holdings. First Valley Leasing, Inc. v. Goushy, 795 F.Supp. 693 (D.N.J.1992), which Holdings relies upon, does not address alleged fraud in the inducement or any purported misrepresentation of the Defendant’s intention of abiding by his contract. Florian Greenhouse, Inc. v. Cardinal IG Corp., 11 F.Supp.2d 521 (D.N.J.1998), arose from alleged misrepresentation during the negotiation of a contract, but those alleged misrepresentations related to extrinsic facts surrounding the exclusivity of defendant’s existing agreement with another distributor and were not part and parcel of the underlying contract. Lo Bosco v. Kure Engineering, Ltd., 891 F.Supp. 1020 (D.N.J.1995), and Coastal Group, Inc. v. Dryvit Systems, Inc., 274 N.J.Super. 171, 643 A.2d 649 (1994), are likewise distinguishable from the case át bar by virtue of the collateral nature of the alleged misrepresentations. As has been demonstrated, here Holdings attempts to allege fraudulent inducement based on the very terms of the underlying contract. For these reasons, Claim X is dismissed. Conclusion For the reasons stated, the Defendants’ motion to dismiss is granted in part and denied in part. The prima facie tort claim (Claim I) and the tortious interference with contract claim (Claim II) are dismissed, the motion to dismiss the tortious interference with economic advantage (Claim II) is denied, the antitrust claim (Claim III) is dismissed, the RICO claim" }, { "docid": "9606785", "title": "", "text": "Unifoil Corp. v. Cheque Printers and Encoders Ltd., 622 F.Supp. 268 (D.N.J.1985). In Cheque Printers, a third-party defendant moved to dismiss a fraud claim against it. The defendant premised a fraud claim on the theory that the third party knew that the sales contract specified a certain type of foil to be used in making lottery tickets, and knowingly supplied another kind. Judge Stern dismissed the fraud claim: On the fraud claim, [plaintiff] argues that SpringMotors does not directly address allegations of intentionally tortious conduct. That is true; but the reasoning of Spring Motors leads us to conclude that, as between commercial parties, New Jersey will not countenance such claims.... [Plaintiff] also argues that case law demonstrates that an action for fraud will lie, even in the presence of a contract. But such cases deal with fraud in the inducement, not the performance, of a contract. This Court, moreover, has construed the law of New Jersey to prohibit fraud claims when the “fraud contemplated by the plaintiff ... does not seem to be extraneous to the contract, but rather on fraudulent performance of the contract itself.” Id. at 270-71 (quoting Foodtown v. Sigma Marketing Systems, Inc., 518 F.Supp. 485, 490 (D.N.J.1980)); see also, Unifoil Corp. v. CNA Ins. Cos., 218 N.J.Super. 461, 528 A.2d 47, 51 (App.Div.1987). Similarly, Judge Wolin of this district recently dismissed a fraud complaint based on allegations that a party had sold a plastic processing machine with the knowledge that the machine would not meet contractual specification. In so deciding, he followed Cheque Printers and held that fraudulent performance of a contract between two commercial entities, as opposed to fraud extraneous to the contract, is not compen-sable in tort. Werner & Pfleiderer Corp. v. Gary Chemical Corp., 697 F.Supp. 808 (D.N.J.1988). In the power plant context, a federal court has held that a fraudulent breach of contract does not give rise to a separate tort action. In Public Service Co. of N.H. v. Westinghouse Elec. Co., 685 F.Supp. 1281 (D.N.H.1988), the complaint alleged that the defendant fraudulently concealed facts about two failing turbine blades in a" }, { "docid": "4139756", "title": "", "text": "accompanied by fraud requires a plaintiff to show by clear and convincing evidence that (1) the mistake was so great that to enforce the contract would be unconscionable; (2) the mistake must relate to a material feature of the contract; (3) the plaintiffs exercised reasonable care; and (4) the relief afforded must not seriously prejudice the opposing party. Fleming Companies, Inc. v. Thriftway Medford Lakes, Inc., 913 F.Supp. 837, 843 (D.N.J.1995) (citations omitted). Here, defendants claim that there is no issue of mutual mistake and therefore plaintiffs’ reformation claim, if any, must be based on a unilateral mistake accompanied by fraud. Plaintiffs do not refute this point. Indeed, plaintiffs do not even address the reformation claim in their opposition brief to this motion. Accordingly, plaintiffs have failed to present any evidence, much less clear and convincing evidence, that there is anything unconscionable in enforcing the COMPAR contracts, as written, or that the plaintiffs reasonably relied upon statements which were contrary to the express language of the contracts. Accordingly, summary judgment is granted to the defendants as to plaintiffs’ reformation claim. 8. Punitive Damages Plaintiffs seek punitive damages on the first, second, third and fourth causes of action in their Amended Complaint — i.e., for breach of fiduciary duty, negligent misrepresentation and fraud. Amended Complaint ¶ 60(b), Martin Cert. Ex. 1. Plaintiffs correctly state that punitive damages are appropriate in both fraud and breach of fiduciary duty claims. W.A. Wright, Inc. v. KDI Sylvan Pools, Inc., 746 F.2d 215, 217 (3d Cir.1984); Rendine v. Pantzer, 141 N.J. 292, 314, 661 A.2d 1202 (1995); Diaz, 869 F.Supp. at 1168; Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J.Super. 200, 227, 543 A.2d 1020 (App.Div.1988); Sandler v. Lawn-A-Mat Chem. & Equip. Corp., 141 N.J.Super. 437, 449, 358 A.2d 805 (App.Div.1976). However, given that the Court has already decided to grant summary judgment to the defendants on plaintiffs’ fraud, fiduciary duty and negligent misrepresentation claims, whether or not punitive damages are appropriate is Moot. 9. Personal Jurisdiction over CIGNA Corp. Fed.R.Civ.P. 4(e) authorizes a district court to assert personal jurisdiction over" }, { "docid": "6515852", "title": "", "text": "cases.’ ” Dean v. Barrett Homes, Inc., 406 N.J.Super. 453, 470, 968 A.2d 192 (App.Div.2009) (quoting R. Joseph Barton, Note, Drowning in a Sea of Contract: Application of the Economic Loss Rule to Fraud and Negligent Misrepresentation Claims, 41 Wm. & Mary L.Rev. 1789 (2000)), certif. granted, 200 N.J. 207, 976 A.2d 384 (N.J.2009). “The purpose of the rule is to ‘strike an equitable balance between countervailing public policies,’ that exist in tort and contracts law.’ ” Id., (quoting Genady A. Go-rel, Note, The Economic Loss Doctrine: Arguing for the Intermediate Rule and Taming the Tort-eating Monster, 37 Rutgers L.J. 517, 524 (2006)). Generally, the economic loss doctrine prohibits plaintiffs from recovering in tort economic losses to which they are entitled only by contract. Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 310, 788 A.2d 268 (2002). Whether a tort claim can be asserted alongside a breach of contract claim depends on whether the tortious conduct is extrinsic to the contract between the parties. Capitalplus Equity, LLC v. Prismatic Development Corp., No. 07-321, 2008 WL 2783339, at *6 (D.N.J. July 16, 2008) (citation omitted); Touristic Enterprises Co. v. Trane Inc., No. 09-02732(SRC), 2009 WL 3818087, at *2 (D.N.J. Nov. 13, 2009). For instance, a plaintiff may be permitted to proceed with tort claims sounding in fraud in the inducement so long as the underlying allegations involve misrepresentations unrelated to the performance of the contract, but rather precede the actual commencement of the agreement. Metex Manufacturing Corp. v. Manson, No. 05-2948, 2008 WL 877870, at *4 (D.N.J. Mar. 28, 2008); Unifoil Corp. v. Cheque Printers & Encoders Ltd., 622 F.Supp. 268, 271 (D.N.J.1985) (finding that courts have “construed the law of New Jersey to prohibit fraud claims when the ‘fraud contemplated by the plaintiff ... does not seem to be extraneous to the contract, but rather on fraudulent performance of the contract itself.’ ”); but see Kirtley v. Wadekar, No. 05-5383(JAG), 2006 WL 2482939, at *4 (D.N.J. Aug. 25, 2006). In Bubbles N’ Bows, LLC v. Fey Pub. Co, No. 06-539KFLW), 2007 WL 2406980, at *10 (D.N.J. Aug. 20, 2007), this" }, { "docid": "10513397", "title": "", "text": "that LCC was not licensed under the NJFPA because LCC used its own name. See Sara Lee's Memorandum of Law in Opposition to LCC’s Motion for Partial Summary Judgment and in Support of Sara Lee's Motion for Summary Judgment (\"Sara Lee’s Mem.”) at 22 (citing Finlay, 146 N.J.Super. at 219, 369 A.2d 541). Sara Lee's position has been squarely rejected by the New Jersey Supreme Court. See Instructional Systems, 130 N.J. at 354-55, 614 A.2d 124 (finding that \"the inclusion of independently named businesses is implicit in the Act's definition of franchise”); see also Cooper Distributing, 63 F.3d at 273 n. 13 (\"The New Jersey Supreme Court has expressly held that independently-named franchisees may still have a license from the franchisor.”). . The court defined economic loss as encompassing \"actions for the recovery of damages for costs of repair, replacement of defective goods, inadequate value, and consequential loss of profits” as well as \"the diminution of value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.” Id. at 627, 695 A.2d 264 (quotation omitted). . LCC contends that Sara Lee’s negligent misrepresentations \"were not intended to be excluded from the parties’ contract.” See LCC’s Mem. at 36. Interpreting this as an invocation of the rule permitting claims of fraudulent inducement based on statements \"contained in the actual contract\" but not on statements \"which are extraneous to the contract,” see Werner & Pfleiderer Corp. v. Gary Chemical Corp., 697 F.Supp. 808, 815-16 (D.N.J.1988), overruled by Lo Bosco v. Kure Engineering, Ltd., 891 F.Supp. 1020, 1032-33 (D.N.J. 1995), to the extent that this distinction survived Lo Bosco, that rule has been superseded by the reasoning of the New Jersey Supreme Court in Alloway. . Despite the passage of years, courts in New Jersey remain unable to decide whether the existence of substantially equal bargaining power is a question of law for the court or a question of fact for the jury. See Fleming Companies, Inc. v. Thriftway Medford Lakes, Inc., 913 F.Supp. 837, 845 (D.N.J.1995) (finding both" }, { "docid": "4139757", "title": "", "text": "as to plaintiffs’ reformation claim. 8. Punitive Damages Plaintiffs seek punitive damages on the first, second, third and fourth causes of action in their Amended Complaint — i.e., for breach of fiduciary duty, negligent misrepresentation and fraud. Amended Complaint ¶ 60(b), Martin Cert. Ex. 1. Plaintiffs correctly state that punitive damages are appropriate in both fraud and breach of fiduciary duty claims. W.A. Wright, Inc. v. KDI Sylvan Pools, Inc., 746 F.2d 215, 217 (3d Cir.1984); Rendine v. Pantzer, 141 N.J. 292, 314, 661 A.2d 1202 (1995); Diaz, 869 F.Supp. at 1168; Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J.Super. 200, 227, 543 A.2d 1020 (App.Div.1988); Sandler v. Lawn-A-Mat Chem. & Equip. Corp., 141 N.J.Super. 437, 449, 358 A.2d 805 (App.Div.1976). However, given that the Court has already decided to grant summary judgment to the defendants on plaintiffs’ fraud, fiduciary duty and negligent misrepresentation claims, whether or not punitive damages are appropriate is Moot. 9. Personal Jurisdiction over CIGNA Corp. Fed.R.Civ.P. 4(e) authorizes a district court to assert personal jurisdiction over a nonresident to the extent permissible under the law of the state where the district court is located. See Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 (3d Cir.1990); Database America v. BellSouth Advertising & Pub., 825 F.Supp. 1195, 1207 (D.N.J.1993). New Jersey’s long arm statute grants jurisdiction to the full extent allowed by the United States Constitution. See N.J. Civil Practice Rule 4:4-4(b)(l)(C)(3); Associated Business Tel. Systems v. Danihels, 829 F.Supp. 707, 710 (D.N.J.1993). Moreover, in cases where the defendant has properly raised a jurisdictional defense, “the plaintiff bears the burden of demonstrating [that] contacts with the forum state [are] sufficient to give the court in personam jurisdiction.” Mesalic, 897 F.2d at 699 (citations omitted). To meet this burden, plaintiffs can establish that either general or specific jurisdiction exists over the defendant. Id. General jurisdiction exists when the defendant has “continuous and systematic conduct in the forum unrelated to the subject matter of the lawsuit.” Associated Business, 829 F.Supp. at 711. Specific jurisdiction exists when the particular cause of action at issue arose out" }, { "docid": "23319648", "title": "", "text": "98 N.J. 555, 489 A.2d 660 (1985), though not explicitly addressing fraud claims, “leads ... to the conclusion that, as between commercial parties New Jersey will not countenance” claims for fraud other than fraud in the inducement. Unifoil Corp. [v. Cheque Printers and Encoders Ltd.], 622 F.Supp. [268,] 270-71 [(D.N.J.1985)]. Spring Motors held that “as among commercial parties ... contract law, ... provides the more appropriate system [as compared to tort law] for adjudicating disputes arising from frustrated economic expectations.” 489 A.2d at 673. Contrary to this proposition, the New Jersey Superior Court after Spring Motors has upheld fraud claims between commercial parties, see Perth Amboy Iron Works, Inc. v. American Home Assurance Company, 226 N.J.Super. 200, 543 A.2d 1020 (App.Div.1988), [aff'd 118 N.J. 249, 571 A.2d 294 (1990)]. No New Jersey court, though, has explicitly considered whether these claims are barred by Spring Motors. Because we determine that plaintiff fails to allege sufficient facts to support its claim of fraud, making summary judgment proper, we decline to wade into this morass. Vanguard Telecom. v. Southern New England Telephone, 900 F.2d 645, 654 (3d Cir.1990) (Rosenn, J.). The same “morass” exists today. The New Jersey District Courts still hold that fraud claims not extrinsic to underlying contract claims are not maintainable as separate causes of action. See, e.g., Lo Bosco v. Kure Engineering Ltd., 891 F.Supp. 1020, 1033 (D.N.J.1995). New Jersey state courts have not agreed with the District Courts’ interpretation of Spring Motors. The New Jersey Supreme Court still has not decided the issue. We will avoid predicting New Jersey law by deciding the fraud issue on its merits, as we did in Vanguard. 2. Merits Under New Jersey law, legal fraud is “a material misrepresentation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment.” Jewish Center of Sussex County v. Whale, 86 N.J. 619, 432 A.2d 521, 524 (1981). Deliberate suppression of a material fact that should be disclosed is equivalent to a material misrepresentation" }, { "docid": "10513398", "title": "", "text": "which it was manufactured and sold.” Id. at 627, 695 A.2d 264 (quotation omitted). . LCC contends that Sara Lee’s negligent misrepresentations \"were not intended to be excluded from the parties’ contract.” See LCC’s Mem. at 36. Interpreting this as an invocation of the rule permitting claims of fraudulent inducement based on statements \"contained in the actual contract\" but not on statements \"which are extraneous to the contract,” see Werner & Pfleiderer Corp. v. Gary Chemical Corp., 697 F.Supp. 808, 815-16 (D.N.J.1988), overruled by Lo Bosco v. Kure Engineering, Ltd., 891 F.Supp. 1020, 1032-33 (D.N.J. 1995), to the extent that this distinction survived Lo Bosco, that rule has been superseded by the reasoning of the New Jersey Supreme Court in Alloway. . Despite the passage of years, courts in New Jersey remain unable to decide whether the existence of substantially equal bargaining power is a question of law for the court or a question of fact for the jury. See Fleming Companies, Inc. v. Thriftway Medford Lakes, Inc., 913 F.Supp. 837, 845 (D.N.J.1995) (finding both that \"[ujnconscionabilily is a question of law to be determined by the court” and that, ”[w]here no genuine issue of material fact exists, a court may conclude on a motion for summary judgment that a contract is enforceable despite an allegation of unconscionability”); compare Monsanto Co. v. Alden Leeds, Inc., 130 N.J.Super. 245, 253, 326 A.2d 90 (Law Div.1974) (finding that \"unconscionability is a matter of law to be determined by the court, without a jury”) with Lomonaco v. Sands Hotel Casino & Country Club, 259 N.J.Super. 523, 531- 32, 614 A.2d 634 (Law Div.1992) (finding that \"there are genuine issues of material fact which ... may allow a finder of fact to conclude that the circumstances surrounding plaintiff’s entering in to the contracts for credit were such as to render the contracts void or voidable due to ... unconscionability”). Because no material facts are in dispute here, however, I may decide the issue as a matter of law without resolving this conflict. . Counsel for both Sara Lee and LCC, in characteristic fashion, have" }, { "docid": "13807794", "title": "", "text": "v. General Marine Indus., 149 N.J. 620, 639-40, 695 A.2d 264 (1997). Unifoil and Werner & Pfleiderer are also readily distinguishable from the present case. Florian does not allege that Cardinal delivered defective goods. Rather it bases its breach of contract claim on the defendant’s nonperformance after February 1, 1997. Also, this is not simply a “garden variety breach of contract case[.]” First Valley Leasing, 795 F.Supp. at 699. Plaintiff contends that, during negotiations, Cardinal misrepresented the extent to which its exclusive arrangement with Four Seasons would impede its ability to deliver the LoE2® glass.This more closely resembles a fraud in the inducement claim which even the Unifoil court acknowledged would be cognizable. See Unifoil, 622 F.Supp. at 271. The factual basis for the alleged fraud is extraneous to the contract — it does not involve nonfulfillment of a warranty or guarantee contained within the contract itself. Nor does it arise from misrepresentation concerning the character of defective goods as was the case in both Unifoil and Werner & Pfleiderer. Instead, the fraud counts fall squarely within the claims preserved under UCC § 12A:1-103. Furthermore, the parties did not limit, by specification, the remedies available upon breach as they did in Werner & Pfleiderer. To permit Florian to pursue tort remedies does not allow remedies beyond those embraced by the contract. Whether the parties articulated in the contract the available remedies for breach is a factor that courts have emphasized in distinguishing their cases from Werner & Pfleiderer. See Lo Bosco, 891 F.Supp. at 1033; First Valley Leasing, 795 F.Supp. at 700. The fraud counts are neither superfluous nor counterproductive because if the defendant is successful with its defense that it had no contract with Florian as claimed in its answer, the plaintiff may still recover under the alternative theories of common law fraud or consumer fraud. In addition, different remedies are available for the fraud claims. Plaintiff seeks punitive damages for its common law fraud claim and treble damages under the Consumer Fraud Act. Such forms of relief are generally not available for breach of contract where compensatory damages" }, { "docid": "9606784", "title": "", "text": "the contract itself,” Judge Luongo did not “believe that Pennsylvania would superimpose tort law on that contract action merely to allow recovery of punitive damages for breach of the implied contract term.” Id. at 1166. See also Closed Circuit Corporation of America v. Jerrold Electronics, 426 F.Supp. 361, 364 (E.D.Pa.1977) (“[a] claim ex contractu cannot be converted to one in tort simply by alleging that the conduct in question was wantonly done.”); Cincinnati Gas & Elec. Co. v. General Elec. Co., 656 F.Supp. 49, 63 (S.D.Ohio 1986) (“Punitive damages are not appropriate to and may not be awarded in an action for breach of contract and a pleader does not alter what is essentially an action for breach of contract by adding the words wilfully, wantonly and maliciously to a claim”). Nor, argues PECO, does the mere fact that a defendant may have negligently or intentionally misrepresented the nature of its performance of a contract transform a breach of contract into tort. Its argument on this ground is heavily dependent on non-Pennsylvania cases such as Unifoil Corp. v. Cheque Printers and Encoders Ltd., 622 F.Supp. 268 (D.N.J.1985). In Cheque Printers, a third-party defendant moved to dismiss a fraud claim against it. The defendant premised a fraud claim on the theory that the third party knew that the sales contract specified a certain type of foil to be used in making lottery tickets, and knowingly supplied another kind. Judge Stern dismissed the fraud claim: On the fraud claim, [plaintiff] argues that SpringMotors does not directly address allegations of intentionally tortious conduct. That is true; but the reasoning of Spring Motors leads us to conclude that, as between commercial parties, New Jersey will not countenance such claims.... [Plaintiff] also argues that case law demonstrates that an action for fraud will lie, even in the presence of a contract. But such cases deal with fraud in the inducement, not the performance, of a contract. This Court, moreover, has construed the law of New Jersey to prohibit fraud claims when the “fraud contemplated by the plaintiff ... does not seem to be extraneous to" }, { "docid": "23319647", "title": "", "text": "of USR. Keller and Norwest had no duty to disclose to Gleason that Norwest was negotiating to divest USR and Boris. Norwest’s duty under the SPA was limited to offering USR to Gleason before selling it to someone else at substantially similar terms. Norwest argues that it discharged all of its duties to Gleason by making its two offers, and that regardless, New Jersey law does not recognize tort and contract claims based on the same underlying facts. We disagree for reasons set forth below. 1. Concurrent Fraud and Contract Claims No New Jersey Supreme Court case holds that a fraud claim cannot be maintained if based on the same underlying facts as a contract claim. More than ten years ago, we stated that: The question of the continuing validity of fraud claims in cases involving frustrated economic expectations under New Jersey law is very complex and troublesome. The United States District Court for New Jersey unequivocally has held that the New Jersey Supreme Court’s reasoning in Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985), though not explicitly addressing fraud claims, “leads ... to the conclusion that, as between commercial parties New Jersey will not countenance” claims for fraud other than fraud in the inducement. Unifoil Corp. [v. Cheque Printers and Encoders Ltd.], 622 F.Supp. [268,] 270-71 [(D.N.J.1985)]. Spring Motors held that “as among commercial parties ... contract law, ... provides the more appropriate system [as compared to tort law] for adjudicating disputes arising from frustrated economic expectations.” 489 A.2d at 673. Contrary to this proposition, the New Jersey Superior Court after Spring Motors has upheld fraud claims between commercial parties, see Perth Amboy Iron Works, Inc. v. American Home Assurance Company, 226 N.J.Super. 200, 543 A.2d 1020 (App.Div.1988), [aff'd 118 N.J. 249, 571 A.2d 294 (1990)]. No New Jersey court, though, has explicitly considered whether these claims are barred by Spring Motors. Because we determine that plaintiff fails to allege sufficient facts to support its claim of fraud, making summary judgment proper, we decline to wade into this morass. Vanguard Telecom. v." }, { "docid": "6515853", "title": "", "text": "2783339, at *6 (D.N.J. July 16, 2008) (citation omitted); Touristic Enterprises Co. v. Trane Inc., No. 09-02732(SRC), 2009 WL 3818087, at *2 (D.N.J. Nov. 13, 2009). For instance, a plaintiff may be permitted to proceed with tort claims sounding in fraud in the inducement so long as the underlying allegations involve misrepresentations unrelated to the performance of the contract, but rather precede the actual commencement of the agreement. Metex Manufacturing Corp. v. Manson, No. 05-2948, 2008 WL 877870, at *4 (D.N.J. Mar. 28, 2008); Unifoil Corp. v. Cheque Printers & Encoders Ltd., 622 F.Supp. 268, 271 (D.N.J.1985) (finding that courts have “construed the law of New Jersey to prohibit fraud claims when the ‘fraud contemplated by the plaintiff ... does not seem to be extraneous to the contract, but rather on fraudulent performance of the contract itself.’ ”); but see Kirtley v. Wadekar, No. 05-5383(JAG), 2006 WL 2482939, at *4 (D.N.J. Aug. 25, 2006). In Bubbles N’ Bows, LLC v. Fey Pub. Co, No. 06-539KFLW), 2007 WL 2406980, at *10 (D.N.J. Aug. 20, 2007), this Court elaborated on the rationale for the economic loss doctrine, stating that “[t]ort principles, such as negligence, are better suited for resolving claims involving unanticipated injuries, and contract principles are generally more appropriate for determining claims for consequential damages that parties have or could have address[ed] in their agreement.” To be barred by the economic loss doctrine, the claims must be duplicative of those provided for under the U.C.C. Alloway v. General Marine Industries, L.P., 149 N.J. 620, 641, 695 A.2d 264 (1997). Indeed, the New Jersey Supreme Court has held In addition to the right to recover under the U.C.C., victims of fraud or unconscionable conduct possess substantial rights to recover for common-law fraud or for violations of various state and federal statutes. The U.C.C. expressly provides that “[u]nless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant [sic] and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy or other validating or invalidating cause shall supplement" }, { "docid": "10513350", "title": "", "text": "may recover from an immediate seller and a remote supplier in a distributive chain for breach of warranty under the U.C.C., but not in strict liability or negligence.” Id. at 561, 489 A.2d 660. The court premised this conclusion on the distinction between tort law and contract law, concluding that, “[a]s among commercial parties in a direct chain of distribution, contract law, expressed here though the U.C.C., provides the more appropriate system for adjudicating disputes arising from frustrated economic expectations.” Id. at 580,489 A.2d 660. In the wake of Spring Motors, courts in New Jersey have struggled with the viability of fraud claims to recover for economic loss arising out of commercial transactions under the U.C.C. See, e.g., Vanguard Telecommunications, Inc. v. Southern New England Telephone Co., 900 F.2d 645, 654 (3d Cir. 1990) (recognizing the “very complex and troublesome” issue, but “declin[ing] to wade into this morass”); compare, e.g., Unifoil Corp. v. Cheque Printers & Encoders Ltd., 622 F.Supp. 268, 271 (D.N.J.1985) (interpreting Spring Motors to bar claims of fraud in the performance of a contract, but not fraud in the inducement), with Coastal Group, Inc. v. Dryvit Systems, Inc., 274 N.J.Super. 171, 178, 643 A.2d 649 (App.Div.1994) (finding that Unifoil was “based on an overly expansive reading of Spring Motors ”). Courts in New Jersey have generally agreed, however, that only intentional torts are actionable under Spring Motors and have dismissed claims of negligent misrepresentation on that basis. See Hoke, Inc. v. Cullinet Software, Inc., 1992 WL 102715, *2 (D.N.J. Mar. 18, 1992) (“[T]he court is convinced that under New Jersey law, the Spring Motors holding would extend to bar tort suits for negligent misrepresentations inducing the formation of contracts between commercial parties.”); see also Henry Heide, Inc. v. WRH Products Co., Inc., 766 F.2d 105, 109 (3d Cir.1985) (dismissing claim of negligent misrepresentation and reasoning that “[b]e-cause this claim arises out of a sales transaction between commercial entities, it should be analyzed within the framework of the U.C.C. rather than by the rules of nonintentional tort law.”) (emphasis added); Unifoil Corp., 622 F.Supp. at 271 (dismissing claim" }, { "docid": "9606830", "title": "", "text": "loss caused by a defendant’s improper performance of a contract. See, e.g., E.A. Williams, Inc. v. Russo Development Corp., 82 N.J. 160, 411 A.2d 697 (1980) (negligent surveyor held liable for economic loss suffered by property owner); Paris of Wayne, Inc. v. Richard A. Hajjar Agency, 174 N.J.Super. 310, 416 A.2d 436 (App.Div.1980) (real estate broker liable for consequential damages to manufacturing company. Consequential damages representing the loss of the benefit of plaintiff’s bargain were appropriate in tort or contract); but cf. New Mea Const. Corp. v. Harper, 203 N.J.Super. 486, 497 A.2d 534 (App.Div.1985) (homeowner’s counterclaim seeking to attach personal liability to corporate builder’s principal based on her negligent supervision of construction sounds in contract not tort). Further, fraudulent and negligent misrepresentations claims have stood side-by-side with contract claims in New Jersey cases. Rodriguez v. Cardona Travel Bureau, 216 N.J.Super. 226, 523 A.2d 281 (Law Div.1986) (travel agents are fiduciaries and liable for foreseeable loss flowing from their negligence). Such a case was decided by Judge Fisher of our district court. B.F. Hirsch v. Enright Refining Co., 577 F.Supp. 339 (D.N.J. 1983), modified, 751 F.2d 628 (3d Cir.1984). The plaintiff in Enright Refining was a jewelry manufacturer who contracted with the defendant to refine the plaintiff’s scrap gold. During the course of their contractual dealings, the defendant began retaining some of the refined metal in addition to the monetary fee it received to refine the gold. The plaintiff was not informed of this change, the defendant issued reports to plaintiff which concealed this retainage, and the plaintiff continued to use the defendant’s services. Judge Fisher found that the defendant’s retaining of the gold without disclosure was a breach of contract and also constituted fraudulent misrepresentation. See also, Perth Amboy Iron Works v. Am Home, 226 N.J.Super. 200, 543 A.2d 1020 (App.Div.1988) (plaintiff potentially had a fraudulent misrepresentation action based on allegations that defendant’s fraud caused plaintiff to buy a yacht and to retake possession of it after repairs to engine were made); Shaitelman v. Phoenix Mut. Life Ins. Co., 517 F.Supp. 21, 23 (S.D.N.Y.1980) (“Here, the defendant allegedly breached" }, { "docid": "13807789", "title": "", "text": "purely economic loss. Defendant relies on three cases to support its position: Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985); Werner & Pfleiderer Corp. v. Gary Chemical Corp., 697 F.Supp. 808 (D.N.J.1988); and Unifoil Corp. v. Cheque Printers & Encoders, Ltd., 622 F.Supp. 268 (D.N.J.1985). In Spring Motors, the New Jersey Supreme Court held that a commercial buyer’s remedy for purely economic loss resulting from the sale of a defective product is under the Uniform Commercial Code (“UCC”) for breach of warranty, not under the tort theories of strict liability or negligence. See Spring Motors, 98 N.J. at 578, 489 A.2d 660. The decision was in large part based on the distinction drawn by the court between tort and contractual principles: The purpose of a tort duty of care is to protect society’s interest in freedom from harm, i.e., the duty arises from policy considerations formed without reference to any agreement between the parties. A contractual duty, by comparison, arises from society’s interest in the performance of promises. Generally speaking, tort principles, such as negligence, are better suited for resolving claims involving unanticipated physical injury, particularly thpse arising out of an accident. Contract principles, on the other hand, are generally more appropriate for determining claims for consequential damages that the parties have, or could have, addressed in their agreement. Id. at 579-80, 489 A.2d 660. Spring Motors addressed only the viability of strict liability and negligence claims in a breach of contract case. Defendant cites Werner & Pfleiderer and Unifoil for the proposition that New Jersey law prohibits all remedies grounded in tort in commercial contractual disputes where the plaintiff seeks recovery for purely economic losses. Like Spring Motors, both of these eases involve UCC breach of warranty claims arising from the sale of a defective product. In Unifoil,' the district court dismissed a common law fraud charge stemming from the supply of a product that did not meet the specifications in the purchase order. See Unifoil, 622 F.Supp. at 271. The district court extended the rationale of Spring Motors to preclude fraud" } ]

[ { "docid": "21525910", "title": "", "text": "damages by way of a Bivens action. In Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the United States Supreme Court held that an individual may sue federal officials acting under color of authority for violation of that individual’s constitutional rights. Id. at 392-93, 91 S.Ct. at 2002-03. As the court has previously noted, however, “[a]lleged constitutional violations, other than a taking claim under the Fifth Amendment, do not state a cause of action for monetary relief against the United States in the [United States Court of Federal Claims].” Frank’s, 17 Cl.Ct. at 607. Moreover, under § 1491(a)(1) this court has jurisdiction over claims against the United States government, not federal officials. See Frank’s, 17 Cl.Ct. at 607. The court therefore lacks jurisdiction over plaintiffs Bivens claims. D. Injunctive and Declaratory Relief Finally, the court must dismiss plaintiffs claims for injunctive and declaratory relief against federal tax liens and levies. Such relief is beyond the scope of the court’s limited injunctive powers. Pursuant to the Tucker Act, the jurisdiction of the court is, with limited exceptions, restricted to monetary judgments against the United States. The court lacks authority to issue declaratory judgments unless specifically authorized to do so. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Such authorization is lacking with regard to the relief plaintiff seeks. II. Summary Judgment Furthermore, defendant moves for summary judgment with regard to the remainder of plaintiffs complaint. The remaining claims involve: (1) a § 6702 penalty for tax year 1988; (2) income tax assessments and a § 6702 penalty for tax year 1989; and (3) income tax assessments and a § 6702 penalty for tax year 1990. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A fact is considered material if it might significantly affect the outcome of the suit" } ]

[ { "docid": "19847724", "title": "", "text": "by filing a claim for Ms attorney’s fees with the Urnted States Army Claims Service. This claim, and subsequent appeals were reviewed under both the Federal Tort Claims Act and the Military Claims Act. The claim was demed by the claims division. Collins filed sMt in the Urnted States Court of Federal Claims seekmg reimbursement under the Military Claims Act for $15,000 in attorney’s fees. Discussion The trial court, on motion of defendant, dismissed plaintiff’s complaint for lack of jurisdiction. The plaintiff argues on appeal that the court below had jurisdiction of the case under the Tucker Act, 28 U.S.C. § 1491(a)(1), because his suit was upon a claim against the United States under the Military Claims Act (MCA), 10 U.S.C. §§ 2738-37, and section 1491 authorizes the Court of Federal Claims to decide such claims. In making tMs argument, the plaintiff misinterprets the Tucker Act. It is true that the Act waives sovereign immumty of the government, but it does not create any substantive right to recover money damages. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The Supreme Court held in Testan that “entitlement to money damages depends upon whether any federal statute can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained”, citing Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002 (1967). Since the Tucker Act does not mandate the payment of plaintiff’s alleged damages, to recover he must base Ms claim on some other statute that creates a substantive right by mandating the payment of Ms claim. The statute relied upon must grant a right of action with specificity. Testan, at 400, 96 S.Ct. at 954. The plaintiff says that the MCA, supra, meets these requirements and fairly mandates the payment of his claim. The MCA provides in pertment part as follows: Section 2731: In tMs chapter “settle” means consider, ascertain, adjust, determine and dispose of a claim, whether by full or partial allowance or by disallowance. Section 2733(a): Under such regulations as the Secretary concerned may prescribe, he" }, { "docid": "7383558", "title": "", "text": "jurisdiction, the court must dismiss the complaint, and may even do so on its own accord sua sponte. RCFC 12(h)(3). B. Jurisdiction Like for all federal courts (except for the U.S. Supreme Court), the Court of Federal Claims’ jurisdiction need be defined by Congress. See Keene, 508 U.S. at 207, 113 S.Ct. 2035; see also U.S. Const, art. 1, § 8; id. art. 3, §§ 1, 2. In particular, the Indian Tucker Act provides for this court’s jurisdiction over any claim against the United States ... in favor of any tribe, band, or other identifiable group of American Indians ... whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group. 28 U.S.C. § 1505. Claims “which otherwise would be cognizable in the Court of Federal Claims” include those covered by the Tucker Act, 28 U.S.C. § 1491(a)(1)—that is, claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Thus, the Indian Tucker Act “allows a Native American tribe to bring suit in the Court of Federal Claims like any other plaintiff.” Yankton Sioux Tribe, 84 Fed.Cl. at 228. Of course, the Tucker Act and Indian Tucker Act do not themselves create a substantive right enforceable against the United States for monetary relief. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed.Cir.2007) (citing Testan, 424 U.S. at 398, 96 S.Ct. 948). Rather, plaintiff must establish an independent right to monetary damages based upon a money-mandating source within a contract, regulation, statute, or constitutional provision. Id. In Indian trust cases, such as the one sub judice, “this separate substantive right may be found in a" }, { "docid": "6954836", "title": "", "text": "that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act, however, merely confers jurisdiction on the Court of Federal Claims; it does not create a substantive right enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980) (Mitchell I); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. at 953. Stated otherwise, “in order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983) (Mitchell II) (citing United States v. Testan, 424 U.S. at 400, 96 S.Ct. at 954 (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967))); Duncan v." }, { "docid": "16510341", "title": "", "text": "L.Ed.2d 80 (1957)). B. Jurisdiction of the United States Court of Federal Claims The United States Court of Federal Claims is a court of “limited jurisdiction.” United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). The Tucker Act, 28 U.S.C. § 1491, confers upon this court jurisdiction over certain claims against the United States; however, the Tucker Act does not create a substantive right enforceable against the sovereign. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Khan v. United States, 201 F.3d 1375, 1377 (Fed.Cir.2000). Rather, a plaintiff’s claim must be grounded in a contract or arise pursuant to a money-mandating statute, regulation, or provision of the Constitution, such as the Takings Clause of the Fifth Amendment. See 28 U.S.C. § 1491; Testan, 424 U.S. at 397-98, 96 S.Ct. 948. The general rule is that this court has jurisdiction over a case if a claimant makes a non-frivolous allegation that he is “entitled to money from the United States because a statute or a regulation grants him that right,” or because a contract or constitutional provision creates an equivalent right. Ralston Steel Corp. v. United States, 169 Ct.Cl. 119, 340 F.2d 663, 667 (1965); see also Stephenson v. United States, 58 Fed.Cl. 186, 192 (2003) (“[W]e are not empowered by Congress to recognize ‘every claim [against the United States] involving or invoking the Constitution, a federal statute, or a regulation.’ Rather, [we] may only hear claims seeking primarily monetary relief against the United States government based upon ‘money-mandating’ provisions of the Constitution, acts of Congress, or executive regulations, to which the plaintiff alleges a specific entitlement.”) (quotations omitted). As the United States Court of Appeals for the Federal Circuit recently explained: When a complaint is filed alleging a Tucker Act claim ... the trial court at the outset shall determine ... whether the Constitutional provision, statute, or regulation is one that is money-mandating. If the court’s conclusion is that the Constitutional provision, statute, or regulation meets the money-mandating test, the court shall declare that it has jurisdiction" }, { "docid": "3688293", "title": "", "text": "department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, “is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). When a contract is not involved, to invoke jurisdiction under the Tucker Act, a plaintiff must identify a constitutional provision, a statute, or a regulation that provides a substantive right to money damages. See Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). In other words, the plaintiff “must assert a claim under a separate money-mandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States.” James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998). For military personnel, 37 Ú.S.C. § 204 is a money-mandating statute. Section 204 provides that “a member of the uniform service who is on active duty” is “entitled to the basic pay of the pay grade to which assigned.” An officer’s right to pay under section 204 continues until the officer is properly separated from the service. See Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 810 (Ct.Cl.1979) (en banc) (stating that § 204 “confers on an officer the right to pay of the rank he was appointed to up until he is properly separated from the service” and serves as the basis for Tucker Act jurisdiction where a discharge is wrongful). If Tippett’s discharge was involuntary and improper, his statutory right to pay was not extinguished and thus serves as a basis for Tucker Act jurisdiction. See Adkins, 68 F.3d at 1321. If, however, Tippett’s discharge was voluntary, his right to pay ended upon his discharge. He thus would have retained no statutory entitlement to compensation, and consequently no money-mandating provision would support Tucker Act jurisdiction over his claim. See id. An otherwise voluntary resignation or request for discharge is rendered involuntary if it is submitted" }, { "docid": "14050666", "title": "", "text": "(1) it confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States, and (2) it waives the Government’s sovereign immunity for those actions. See U.S. v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II); United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The causes to which the Act applies are claims for money damages against the United States “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages. Mitchell II, 463 U.S. at 216, 103 S.Ct. 2961; Testan, 424 U.S. at 398, 96 S.Ct. 948. In the parlance of Tucker Act cases, that source must be “money-mandating.” See Mitchell II, 463 U.S. at 217, 103 S.Ct. 2961; Testan, 424 U.S. at 398, 96 S.Ct. 948. Under the existing precedent of this court, the issue of whether a source is money-mandating is addressed in a two-step process. See Gollehon Farming v. United States, 207 F.3d 1373, 1378-80 (Fed.Cir.2000) (citing Banks v. Garrett, 901 F.2d 1084, 1087-88 (Fed.Cir.1990)). As a first step, and for purposes of satisfying the jurisdictional requirement that a money-mandating statute or regulation is before the court, the plaintiff need only make a non-frivolous allegation that the statute or regulation may be interpreted as money-mandating. The non-frivolous allegation satisfies the jurisdictional requirement. If, as a second step, the issue of jurisdiction is later pressed and it is subsequently decided that the statute or regulation is not money-mandating, then the case is dismissed for failure to state a claim upon which relief can be granted. Gollehon, 207 F.3d at 1379." }, { "docid": "8828152", "title": "", "text": "to the face of the pleadings____”). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1491 (2012). The Tucker Act affords this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), it does not confer any substantive rights upon a plaintiff, United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States—that is, a money-mandating source within a contract, regulation, statute or eon stitutional provision—in order for the case to proceed. See Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). The CDA is such a money-mandating statute. The CDA confers upon this court the authority to adjudicate a claim for monetary damages arising from “any express or implied contract ... made by an executive agency for ... the procurement of property, other than real property in being.” 41 U.S.C. § 7102(a)(1); cf. Kelley v. United States, 19 Cl.Ct. 155, 160 (1989) (“Under the CDA, the [Court of Federal Claims] has jurisdiction to entertain claims arising from the lease of real property____”). B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim A motion to dismiss pursuant to RCFC 12(b)(6) asserts a “failure to state a claim upon which relief can be granted.” RCFC 12(b)(6). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its" }, { "docid": "11049717", "title": "", "text": "against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (1994). The Tucker Act does not, by itself, create any causes of action against the United States for money damages. See United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Instead, to invoke jurisdiction under the Tucker Act, a plaintiff must identify a contractual relationship, constitutional provision, statute, or regulation that provides a substantive right to money damages. See Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). In other words, the plaintiff “must assert a claim under a separate money-mandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States.” James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998). In his brief, Dr. Khan claims entitlement to monetary relief under 38 U.S.C. §§ 7401, 7431-33 (1994). We conclude that none of these provisions can be interpreted as mandating the compensation that Dr. Khan requests in his first claim, namely the difference between his current retirement benefits and what he would have received had he not retired. Section 7401 of title 38 authorizes the Secretary to appoint medical personnel as necessary to provide medical care to veterans. It does not mention pay, nor does it create a cause of action for monetary damages. Thus, it cannot be construed as a money-mandating statute. See Testan, 424 U.S. at 400, 96 S.Ct. 948 (defining a money-mandating statute as one that “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained”). Sections 7431-33 govern the payment of “special pay” to qualified physicians and dentists in the VHA. Although these provisions mandate the payment of money to qualified employees, such payments are limited to currently employed physicians and dentists. For instance, section 7431(f) states that “[s]pecial pay may not be paid ... to a physician or dentist who" }, { "docid": "14908822", "title": "", "text": "to the plaintiffs’ March 2006 request for a due process hearing, which had been untimely. In its decision letter dated November 17, 2006, the IRS concluded that the levy was appropriate. Pis.’ Ex. 4. DISCUSSION I. Jurisdiction The Court of Federal Claims is a court of “limited jurisdiction.” United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). General jurisdiction of the Court of Federal Claims is derived from the Tucker Act, 28 U.S.C. § 1491 (2000). The Tucker Act provides that an action may be maintained in the Court of Federal Claims only if it is “founded upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Rather, “in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005). See also Testan, 424 U.S. at 398, 96 S.Ct. 948; United States v. Mitchell, 463 U.S. 206, 215-216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002 (1967). Thus, in order to establish jurisdiction, the plaintiffs must allege a money-mandating claim. The issue of whether the plaintiffs have alleged a money-mandating claim has led to some confusion over whether the plaintiffs’ failure to do so leads to dismissal under RCFC 12(b)(1) for lack of jurisdiction or RCFC 12(b)(6) for failure to state a claim upon which relief can be granted. The United States Court of Appeals for the Federal Circuit has recently stated that the Court of Federal Claims should analyze the issue as follows: [W]hen a claim is" }, { "docid": "11040050", "title": "", "text": "was required to make adequate findings of fact and conclusions of law to support its judgment. .This court vacated and remanded the case because the Court of Federal Claims’ “findings of fact and conclusions of law [were] insufficient to enable meaningful appellate review.” Hamlet v. United States, No. 93-5075, slip op. at 2, 14 F.3d 613, 1993 WL 481140 (Fed.Cir. Nov. 23, 1993) (CAFC Hamlet II). Upon remand, the Court of Federal Claims held that Hamlet did not satisfy her burden of proof in establishing the existence of a contract or the breach of that contract. Hamlet v. United States, No. 281-86C, slip op. at 4 (Fed.Cl. Mar. 21,1994) (CFG Hamlet III). The court also held that the 22-PM Manual does not have the “force and effect of law” under Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), and thus could not be interpreted to mandate the payment of money damages for purposes of the Tucker Act, under United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). CFG Hamlet III, slip op. at 4-6. The Court of Federal Claims then sua sponte examined its jurisdiction over Hamlet’s cause of action and concluded that jurisdiction was lacking under the Tucker Act. Id. at 6-8. II This court reviews de novo a dismissal by the Court of Federal Claims for lack of subject matter jurisdiction. Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed.Cir.1992). “The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). In order to invoke jurisdiction under the Tucker Act, a plaintiff must point to a substantive right to money damages against the United States. Id. Hamlet’s complaint contained three counts, each alleging a substantive right to compensation from the United States: (1) a breach of contract claim; (2) a violation of agency regulation claim; and (3) a claim that her removal" }, { "docid": "9417596", "title": "", "text": "claim processed under the Military Claims Act, 10 U.S.C. § 2733. Plaintiff then presented his claim for $10,500 to this court. II A Absent a specific statute vesting the Court of Federal Claims with jurisdiction, see e.g., 28 U.S.C. § 1498 (damage claims for unlicensed use of patents and copyrights), a claim for monetary relief may be predicated only on the Tucker Act, 28 U.S.C. § 1491(a). The Tucker Act grants the Court of Federal Claims jurisdiction to render judgment upon any monetary claim against the United States “founded upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States” in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). While the Tucker Act provides jurisdiction to proceed in this court with a monetary claim against the federal government, United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976), it “does not create any substantive right enforceable against the United States for money damages.” Id. at 398, 96 S.Ct. at 953. See also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); Security Bank & Trust Co. v. United States, 31 Fed.Cl. 589, 593 (1994). Monetary relief may only be granted if it is expressly authorized by a separate statute, a constitutional provision, a regulation or a contract. Testan, 424 U.S. at 400, 96 S.Ct. at 954 (“entitlement to money damages depends on whether any federal statute ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained’ ” (citation omitted)). See also Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed.Cir.1994) (en banc); Appalachian Regional Healthcare, Inc. v. United States, 999 F.2d 1573, 1577 (Fed.Cir.1993); Trayco, Inc. v. United States, 994 F.2d 832, 837 (Fed.Cir.1993); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert, denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). B In order to defeat the motion to dismiss for lack of subject matter jurisdiction, plaintiff must" }, { "docid": "2120177", "title": "", "text": "any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). Therefore, in order to come within the jurisdictional reach of the Tucker Act, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act.”); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed.Cir.2004) (“Because the Tucker Act itself does not provide a substantive cause of action, ... a plaintiff must find elsewhere a money-mandating source upon which to base a suit.”); Khan v. United States, 201 F.3d 1375, 1378 (Fed.Cir.2000) (“[T]he plaintiff ‘must assert a claim under a separate money-mandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States.’ ”) (quoting James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998)). Therefore, a plaintiff must demonstrate that the source of substantive law upon which the claim relies “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Testan, 424 U.S. at 400, 96 S.Ct. 948. In the “parlance of the Tucker Act cases, that source must be ‘money-mandating.’ ” Id. Under the Tucker Act, “[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed" }, { "docid": "15234216", "title": "", "text": "jurisdiction is prescribed by the Tucker Act, 28 U.S.C. § 1491 (2006). Under the Tucker Act, this court’s jurisdiction is limited to monetary claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. § 1491(a)(1) (emphasis added). The Tucker Act is only a jurisdictional statute and does not create any independent substantive rights enforceable against the United States for money damages. See, e.g., United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (“[T]he [Tucker] Act merely confers jurisdiction upon [this Court] whenever the substantive right exists.”). In other words, not every claim involving the United States Constitution or an Act of Congress is recognizable under the Tucker Act. Rather, a plaintiffs claim must be for money damages based on a “money-mandating” source of substantive law. See Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed.Cir.2008). If the court concludes that a plaintiffs claim is not based on a “money-mandating” source of substantive law, then the claim falls outside this court’s jurisdiction. Metz v. United States, 466 F.3d 991, 997 (Fed.Cir.2006). Defendant has filed a Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). A challenge to the court’s “general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999). When deciding a motion to dismiss pursuant to RCFC 12(b)(1), the court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in [the] plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Nevertheless, a plaintiff still bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army" }, { "docid": "13464203", "title": "", "text": "to ‘convert the “arbitrary and capricious” standard into effectively de novo review.’ ” Id. (quoting Murakami\", 46 Fed.Cl. at 735 and citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). The thrust of the Axiom decision, and Murakami, is that this court must exercise restraint when considering whether or not to supplement the administrative record. See id. (favoring a “more restrictive approach” and questioning the vitality of Esch) (citations omitted); Murakami, 46 Fed.Cl. at 735 (stating that the construction of the Esch justifications for allowing supplementation of an administrative record should be “‘extremely limited’ ”) (citations omitted). II. Analysis A. Jurisdiction Pursuant to the Tucker Act, the United States Court of Federal Claims has jurisdiction “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2006). The Tucker Act, however, “does not create any substantive right enforceable against the United States for money damages. The Court of Claims has recognized that the Act merely confers jurisdiction upon it whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (citation omitted). A plaintiff coming before the United States Court of Federal Claims, therefore, must also identify a separate provision of law conferring a substantive right for money damages against the United States. Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (citing Testan, 424 U.S. at 398, 96 S.Ct. 948). 1.Pay and Allowances In the present case, plaintiffs allege that the Military Pay Act, 37 U.S.C. § 204 (2006), provides the money-mandating provision of law for their pay and associated allowances claims. Pis.’ Resp. at 11. Claims for back pay based on § 204 are within the jurisdiction of this court. Metz v." }, { "docid": "21322510", "title": "", "text": "military career and her excellent ratings, she would have been granted an additional period of duty. The Assistant Secretary replied on January 14, 1993, that he found no basis for reopening the case. Thereafter, plaintiff filed a motion for summary judgment in this court on March 8, 1993. Discussion This court turns first to the motion to dismiss. A motion for failure to state a claim upon which relief can be granted is appropriate where the plaintiff could assert no set of facts which would support her claim. Chang v. United States, 859 F.2d 893, 894 (Fed.Cir.1988). Moreover, in reviewing a motion to dismiss under RCFC 12(b)(4), the court must “assume all well-pled factual allegations are true and indulge in all reasonable inferences in favor of the nonmovant.” Gould Inc. v. United States, 935 F.2d 1271, 1273 (Fed.Cir.1991); Coggeshall Development Corp. v. United States, 23 Cl.Ct. 739, 743 (1991). Although this court’s basic jurisdictional grant lies in the Tucker Act, 28 U.S.C. § 1491 (1988), the Act is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” Dehne v. United States, 970 F.2d 890, 893 (Fed.Cir.1992), quoting United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). Therefore, in order to state a claim before this court, plaintiff must assert some money mandating statute or regulation on which to base her claim. Testan, 424 U.S. at 400, 96 S.Ct. at 954. In addition, plaintiff carries the burden of proffering a statute that mandates pay for service never actually performed. Failure to demonstrate such a statute is a failure to state a claim upon which relief can be granted. Dehne, 970 F.2d at 892; Spagnola v. Stockman, 732 F.2d 908, 909 (Fed.Cir.1984). Plaintiff maintains that this court should read the Back Pay Act, 5 U.S.C. § 5596(b) (1988), and 10 U.S.C. § 1552(a) (1988 & Supp. II 1990), in pan materia, to establish a basis for plaintiff’s claim. The Back Pay Act, § 5596 provides: (b)(1) An employee of an agency who, on the basis" }, { "docid": "9430457", "title": "", "text": "that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). I. Mandating Statute. The jurisdiction of this court to entertain claims against the government and grant relief is limited by the extent the United States has waived its sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941); Dynalectron Corp. v. United States, 4 Cl. Ct. 424, 428 (1984). Consent to sue is premised on the Tucker Act, 28 U.S.C. § 1491, which provides that an action may be maintained in this court if and only if it is “founded either upon the Constitution or any Act of Con gress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. § 1491(a)(1). This provision, however, creates no substantive right of recovery, and jurisdiction exists only when predicated upon another money mandating statute or regulation, the violation of which gives rise to a claim for monies due or owing. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (era banc). Plaintiff, referring the court to DOPMATCA, Pub.L. No. 97-22, 95 Stat. 124-138, contends that this threshold jurisdictional requirement has been met. When a statute or regulation “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained,” plaintiff may be entitled to monetary relief Testan, 424 U.S. at 400, 96 S.Ct. at 954. II. Statutory Interpretation. This case presents the issue of whether, under DOPMA and the Technical Corrections Act, plaintiff was entitled to be retired in the rank of eolonel/USAR. Prior to the effective date of DOPMA, plaintiff had been selected for promotion to colonel. However, on January 25, 1982, plaintiff subsequently integrated into the Regular Army as a lieutenant colonel after DOPMA was already in" }, { "docid": "21536053", "title": "", "text": "compensable taking. IV. DISCUSSION In considering a motion to dismiss, the unchallenged allegations of the complaint are construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Moreover, as Plaintiff in this case is pro se, his submissions are construed more leniently than pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977). A. Jurisdiction This Court’s relevant jurisdiction is expressly limited to those causes of action covered by the Tucker Act. The Act provides the Court with jurisdiction “... to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department____” 28 U.S.C. § 1491(a)(1). The Tucker Act confers jurisdiction upon the Court of Federal Claims only in cases where a substantive right to recovery exists. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Absent the existence of a contractual relationship, to establish a right to recovery, a plaintiff must demonstrate that it either (1) seeks a refund of money which it paid to the Government, or (2) that the provision of the Constitution, the statute, the Executive Order, or the regulation upon which plaintiff relies mandates a payment of money which the' Government has unlawfully declined to pay. E.g., Testan, 424 U.S. at 400, 96 S.Ct. at 954 (1976) (citing Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007-09, 178 Ct.Cl. 599, 605-07 (1967)). The Tucker Act constitutes a waiver of sovereign immunity. Testan, 424 U.S. at 399, 96 S.Ct. at 954 (citing United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969)). Id. Therefore, it must be strictly construed. B. Illegal Exaction Claim As Plaintiff seeks the return of the monetary value of his forfeited property, asserting that it was taken in violation of the Double Jeopardy Clause, his claim may qualify as one of illegal" }, { "docid": "3688292", "title": "", "text": "discharge. In addition, he asked the court to direct the Secretary to void and expunge from his records the OER covering the period July 25, 1988, through January 29, 1989, and the two subsequent OERs. On June 26, 1996, the ABCMR denied Tippett’s application for correction of records. As noted above, a year later, the Court of Federal Claims dismissed Tippet’s suit for lack of jurisdiction after it concluded that his discharge was voluntary. This appeal followed. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION I. “Jurisdiction being a question of law,” Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed.Cir.1992), we exercise complete and independent review of the Court of Federal Claims’ conclusion that it lacked jurisdiction to entertain Tippett’s suit. See Adkins v. United States, 68 F.3d 1317, 1321 (Fed.Cir.1995). The Tucker Act gives the Court of Federal Claims “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, “is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). When a contract is not involved, to invoke jurisdiction under the Tucker Act, a plaintiff must identify a constitutional provision, a statute, or a regulation that provides a substantive right to money damages. See Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). In other words, the plaintiff “must assert a claim under a separate money-mandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States.” James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998). For military personnel, 37 Ú.S.C. § 204 is a money-mandating statute. Section 204 provides that “a member of the uniform service who is on" }, { "docid": "21341907", "title": "", "text": "regulations, and failed to meet the deadline for rendering a decision on the plaintiff’s application. Finally, the plaintiff claims that HUD acted fraudulently and negligently. The plaintiff seeks $15 million in damages. The defendant asserts that there is neither a contract nor a money-mandating statute authorizing relief to this plaintiff. Therefore there can be no jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1) (1988). The plaintiff contends that the application fees created a contract obligating HUD to perform a SAMA in accordance with its regulations. The court finds that it has jurisdiction only over El Dorado’s claim for return of its application fees. DISCUSSION For the purpose of ruling on a motion to dismiss under RCFC 12(b)(1), unchallenged allegations in the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989). The complaint should not be dismissed unless it is beyond doubt that the plaintiff can prove no set of facts which would entitle it to relief. Hamlet, 873 F.2d at 1416. The burden of proof to establish that this court has jurisdiction is on the plaintiff. Reynolds v. Army & Air Force Exchange Serv., 846 F.2d 746, 748 (Fed.Cir.1988). The plaintiff alleges that this court has jurisdiction under the Tucker Act. The Tucker Act grants the U.S. Court of Federal Claims jurisdiction “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). It is well settled that the Tucker Act does not by itself create any substantive right against the United States for money damages. It merely confers jurisdiction on the Court of Federal Claims if other authority creates a substantive right to recover money damages. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976)." }, { "docid": "6495779", "title": "", "text": "Jurisdiction Originally enacted in 1887, the Tucker Act, 28 U.S.C. § 1491 (1988 & Supp. IV 1994), serves as the primary jurisdictional statute governing the type of claims reviewable by this court. United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 952-53, 47 L.Ed.2d 114 (1976). This statute provides as follows: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States. 28 U.S.C. § 1491(a)(1). Although this statute confers threshold subject matter jurisdiction on this court by waiving the sovereign immunity of the United States under certain conditions, it does not, ipso facto, confer a substantive right on parties to recover money damages from the government. Testan, 424 U.S. at 398, 96 S.Ct. at 953; United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) (“Mitchell II”); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980) (“Mitchell I ”). It is well established, therefore, that such a substantive right to a payment of money from the government must be made with specificity and arise from either (1) an express or implied contract with the United States, (2) a prior payment made to the government for which a plaintiff seeks a refund, or (3) a federal constitutional, statutory, or regulatory law which “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” Testan, 424 U.S. at 400, 402, 96 S.Ct. at 954, 955; Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967). It is this latter basis upon which plaintiff asserts this court’s jurisdiction over its claim. In short, Stinson contends that, coupled with § 1491, the FCA serves as a federal statute specifically mandating the payment of remedial compensation to qui tam relators such as itself, where the government has recovered proceeds in an “alternate remedy”" } ]

[ { "docid": "10331717", "title": "", "text": "Social Security Act. Id. at 26. 2. Discussion The record raises two concerns. The Court agrees with plaintiffs assertion that the ALJ erred in not including his subjective claims of pain in the hypothetical to the vocational expert and will therefore remand the case for further consideration. The Court raises sua sponte the issue of whether plaintiff knowingly waived his statutory right to counsel at the administrative proceedings and finds that he did not. This Court is not in the position of fact-finder and cannot reweigh the evidence before the ALJ. However, “[t]he ALJ must evaluate all the relevant evidence.” Taylor v. Heckler, 595 F.Supp. 489, 492 (D.D.C.1984) (citing Cotter v. Harris, 642 F.2d 700, 704 (3rd Cir.1981)). “The ALJ’s failure to evaluate probative evidence submitted by plaintiff or to explain why he deemed plaintiffs claim of pain not credible is ‘good cause’ to reverse the Secretary’s decision on grounds that it is unsupported by substantive evidence.” Id. (citation omitted). Defendant asserts that the ALJ “fully considered Plaintiffs allegations of pain and other subjective symptoms.” Defendant’s Motion at 20. While that may be true, the ALJ’s reliance on the vocational expert’s conclusion that plaintiff could perform certain types of available jobs was flawed where the hypothetical lacked any exploration of plaintiffs subjective claims of pain. “Should the ALJ look to the opinion of a vocational expert in determining the claimant’s ability to perform ‘other work’ than he has done before, the ALJ must accurately describe the claimant’s physical impairments in any question posed to the expert.” Simms v. Sullivan, 877 F.2d at 1050. Those impairments include subjective claims of pain. See Diabo v. Secretary of Health, Ed. and Welfare, 627 F.2d 278, 281-82 (D.C.Cir. 1980). Although the ALJ apparently disbelieved the severity of plaintiffs alleged pain, he did not find and, based on plaintiffs testimony and the medical records, could not find that plaintiff suffered no pain. Therefore, the ALJ’s failure to mention altogether plaintiffs subjective claims of pain in the hypothetical to the vocational expert, Record at 82-83, was fatal in light of the circumstances discussed below. See Diabo" } ]

[ { "docid": "462840", "title": "", "text": "treatment, it is not disabling”), citing Purdham v. Celebrezze, 349 F.2d 828, 830 (4th Cir.1965); and Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (evidence of treatment and medical regimen followed by claimant is proper basis for finding of no disability) (Hall, J., concurring for divided panel). In addition to the ALJ’s treatment of the medical records, he properly applied the standard for determining a claimant’s residual functioning capacity based on subjective complaints of pain, and the record contains substantial evidence to support the ALJ’s conclusion that Plaintiffs testimony was not fully credible. The determination of whether a person is disabled by non-exertional pain or other symptoms is a two-step process. “First, there must be objective medical evidence showing the existence of a medical impairments) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir.1996), citing 20 C.F.R. § 416.929(b); § 404.1529(b); 42 U.S.C. § 423(d)(5)(A). If there is such evidence, then the ALJ must then evaluate “the intensity and persistence of the claimant’s pain, and the extent to which it affects her ability to work.” Id. at 595, citing 20 C.F.R. § 416.929(c)(1) and § 404.1529(c)(1). The regulations provide that this evaluation must take into account: not only the claimant’s statements about his or her pain, but also “all the available evidence,” including the claimant’s medical history, medical signs, and laboratory findings; any objective medical evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.); and any other evidence relevant to the severity of the impairment, such as evidence of the claimant’s daily activities, specific descriptions of the pain, and any medical treatment taken to alleviate it. Id. (citations omitted). The record contains evidence of Plaintiffs hypertension, degenerative disc disease and a herniated nucleus pulposus of the lumbar spine, osteoarthritis of the knees, depression, and obesity — conditions which could reasonably be expected to produce some of the pain claimed by Plaintiff — and thus the ALJ essentially found that Plaintiff" }, { "docid": "22567875", "title": "", "text": "doctor even suggest, much less confirm, the bland conclusion of the ALJ that Davis’ impairments cause him abdominal “discomfort” and “infrequent episodes of acute pain”. Material facts in the record were disregarded. The ALJ found that Davis had three impairments, thus failing to consider at least two additional ailments reported both by plaintiff and numerous hospital/physician records. Moreover, although the ALJ correctly stated that plaintiffs physician reported that plaintiffs chronic abdominal pain was not activity-related, Record at 135, the ALJ’s conclusion that this meant plaintiff could resume past employment is illogical. The fact that plaintiff did work in the past during periods of intense pain should not militate against him as the ALJ’s evaluation suggests, but instead should be viewed in favor of his argument. Acknowledging that the ALJ was able to observe plaintiff’s demeanor, and the Court was not, there is recognized value of plaintiff’s subjective testimony. “Evidence of subjective pain is relevant and probative to the law judge’s ultimate determination of disability ... and failure to consider it is ground for remand.” Diabo v. Secretary of Health, Education and Welfare, 627 F.2d 278, 282 (D.C.Cir.1980). Here, while the ALJ did describe and consider some of the plaintiff’s complaints of continual, disabling pain, he concluded, surprisingly, in light of the overwhelming evidence, that Davis’ complaints were “not credible”. Those conclusions he based on his evaluation of the evidence: . .. Claimant’s testimony as to his inability to work and his inability to fulfill the exertional requirements of his prior work is not credible in light of the infrequent and episodic nature of acute pain, the relief that medication brings, and the evidence that claimant maintains full range of motion in all extremities. The undersigned observed that claimant did not exhibit any sign of physical limitation that would be consistent with his subjective complaints of constant disabling pain. More important, while claimant’s condition causes some abdominal discomfort and episodes of acute pain, medical evidence fails to establish the existence of a medically determinable impairment that causes him continual pain that precludes him from engaging in his past work. Reports have" }, { "docid": "14602842", "title": "", "text": "err when she assigned “great weight” to the medical source statement provided by Dr. Kamin but “little weight” to the opinions of Dr. Dawood. b. Credibility Determination Plaintiff argues that the ALJ failed to follow the appropriate legal standard when evaluating Plaintiffs credibility; (Dkt. 7-1 at 27). The Social Security regulations require a two-step process for the ALJ to consider the extent to which subjective evidence of symptoms can reasonably be accepted as consistent with the medical and other objective evidence. Brownell v. Comm’r of Soc. Sec., No. L05-CV-0588 (NPM/VEB), 2009 WL 5214948, at *3 (N.D.N.Y. Dec. 28, 2009). First, the ALJ considers whether the medical evidence shows any impairment “which could reasonably be expected to produce the pain or other symptoms alleged....” 20 C.F.R. § 404.1529(a). Second, if an impairment is shown, the ALJ must evaluate the “intensity, persistence, or functionally limiting effects” of a claimant’s symptoms to determine the extent to which they limit the claimant’s capacity to work. 20 C.F.R. § 404.1529(b). When the objective medical evidence alone does not substantiate the claimant’s alleged symptoms, the ALJ must assess the credibility of the claimant’s statements considering the details of the case record as a whole. 20 C.F.R. § 404.1529(c)(3)(i)-(vii). In the instant case, the ALJ properly applied the two step analysis. First, the ALJ found that Plaintiffs medically determinable impairments could be expected to cause the alleged symptoms. (Dkt. 1-2 at 10). Second, the ALJ determined that Plaintiffs “allegations of disability” were “not entirely credible in light of inconsistent statements.” (Id. at 12). First, Plaintiff contends that the ALJ improperly found that Plaintiffs “statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment” because this improperly meant the ALJ based her credibility determination on her own RFC fíndipg. (Dkt. 7-1 at 27 (quoting Dkt. 1-2 at 10)). This argument has been rejected by this Court. See Diakogiannis v. Astrue, 975 F.Supp.2d 299, 318-19 (W.D.N.Y.2013) (determining the ALJ’s credibility assessment was supported by substantial evidence- where the ALJ assessed the plaintiffs" }, { "docid": "23183728", "title": "", "text": "specific finding as to the degree of limitation in each of the functional areas.” 20 C.F.R. § 416.920a(e)(2). Second, in his decision, see A.R. at 19-20, the ALJ set forth “the significant history ... and the functional limitations that were considered in reaching [the] conclusion about the severity of [plaintiffs] mental impairment[ ],” § 416.920a(e)(2). Finally, we reject plaintiffs argument that the ALJ failed to develop an adequate record regarding her mental impairment because he failed to seek an assessment of her ability to perform certain work-related activities from Dr. Brown. Although the governing regulations provide that a consultative examination report should contain a statement describing the opinion of the medical source about the claimant’s abilities, despite his or her impairments, to perform certain work-related activities, see 20 C.F.R. § 416.919n(c)(6), the regulations further provide that “the absence of such a statement in a consultative examination report will not make the report incomplete.” Id. C. Subjective Complaints Regarding Back Pain. With respect to plaintiffs back pain, the' ALJ did “not find credible the testimony and statements of functional limitations and pain of such severity as to preclude the performance of any substantial gainful activity.”' A.R. at 19'. We conclude that the ALJ’s credibility determination is supported by substantial evidence in the record. “A claimant’s subjective allegation of pain is not sufficient in itself to establish disability.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir.1993). Instead, “[b]efore the ALJ need even consider any subjective evidence of pain, the claimant must first prove by objective medical evidence the existence of a pain-producing impairment that could reasonably be expected to produce the alleged disabling pain.” Id. (citations omitted). As this court has explained: 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" }, { "docid": "15157823", "title": "", "text": "minute hearing was not probative of his ability to perform sedentary work). As the above analysis demonstrates, the ALJ’s decision regarding Woodford’s capacity to perform sedentary work is not supported by substantial evidence, and remand is required. Also, the supplementary evidence Woodford submitted to the Appeals Council indicates that the ALJ’s decision must be reconsidered, as Dr. Ku-lak’s February, 1997 letters directly refute the ALJ’s determination that Woodford is capable of remaining seated for six hours. (Tr. at 9-13). Since the ALJ previously recognized Dr. Kulak as Woodford’s treating physician, (Tr. at 64), the Commissioner is required on remand to apply the treating physician’s rule in reviewing Dr. Kulak’s February, 1997 letters. See Rivera, 923 F.2d at 968. Specifically, he must afford the February, 1997 letters controlling weight, provided that the information in the letters does not contradict evidence already admitted to the administrative record, and the letters’ diagnoses are based on accepted clinical procedures. 20 C.F.R. § 404.1527(d)(2). If the Commissioner determines that the letters should not be afforded controlling weight, he must specifically indicate the weight this evidence is to be given, and the reasons for his decision. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999). Woodford also alleges that the ALJ erred when he found that her subjective pain testimony was overstated and not credible. (PI. Mem. at 28). A claimant’s subjective pain may, when supported by other facts, establish that a claimant has a disability. See 20 C.F.R. § 404.1529(a). The claimant’s testimony regarding subjective pain must be supported by signs and laboratory findings which show that the claimant has a medical impairment which could reasonably be expected to produce the pain. Id. The record indicates that the Commissioner improperly weighed the evidence corroborating claimant’s subjective pain testimony. Woodford testified that she felt knife-like pain and numbness in her left ankle after sitting for fifteen to twenty minutes, and pain in her ankle from swelling. (Tr. at 82, 66-67). The testimony has support in the administrative record, which shows that Woodford repeatedly complained to her doctors about numbness and pain in her left ankle. (See," }, { "docid": "23320667", "title": "", "text": "together, constituted severe impairments that precluded plaintiff from performing her past work as an attorney and a teacher, plaintiff nevertheless retained the residual functional capacity to perform sedentary work. The ALJ found that the objective medical evidence did not support plaintiffs subjective complaints of disabling pain or her allegations of severe functional incapacity. In reaching this conclusion, the ALJ discounted the residual functional capacity assessments and opinions of “permanent” and “total” disability provided by plaintiffs treating physicians. Because the ALJ found that the treating physicians’s opinions were not adequately supported by medically acceptable evidence and were inconsistent with other substantial evidence in the record (including the findings of both independent and state agency physicians), the ALJ determined that the treating physicians’ opinions were not entitled to controlling weight under 20 C.F.R. § 404.1527. After considering plaintiffs allegations of physical disability, the ALJ proceeded to evaluate the medical evidence concerning her mental health. Included in the medical record were reports from plaintiffs psychiatrist, which indicate that Kamerling is depressed, suffers from significant pain, cannot concentrate effectively, and is unable to function effectively in her work as an attorney. The reports state, moreover, that plaintiff was being treated with anti-depressants and supportive psychotherapy. A mental residual functional capacity assessment performed by a state psychologist also indicates that plaintiff suffers from an affective disorder that often limits plaintiffs social functioning and concentration, but that there is no evidence of organic mental, psychotic, personality, or anxiety-related disorders. Kamerling has, throughout the disability determination process, strenuously denied that she has a mental impairment. In his decision, the ALJ observed that the physicians’ and psychologist’s treatment notes, as well as plaintiffs numerous letters to the Office of Hearings and Appeals, indicate that Kamerling suffers from a personality disorder with depression and maladaptive behavior that may preclude her from returning to her past relevant work. The ALJ determined, however, that the written record did not show that Kamerling has a severe mental impairment that prevents her from engaging in substantial gainful activity. Since Kamerling’s claim survived the first four steps of the disability determination inquiry, the burden" }, { "docid": "21689694", "title": "", "text": "“are not entirely credible in fight of the degree of medical treatment required, the reports of the treating and examining practitioners, and the findings made on examination.” AR at 18. Additionally, the ALJ determined that the plaintiffs daily activities are not as “limited to the extent one would expect, given the complaints of disabling symptoms and limitations.” Id. Because the court concludes that the ALJ’s findings regarding the plaintiffs impairments are not supported by substantial evidence, the court remands the matter for further development of the record. Evidence of subjective pain is relevant to the ALJ’s ultimate determination of disability. See Simms, 877 F.2d at 1051. Under the regulations, pain is a symptom and its relevance is governed by 20 C.F.R. § 404.1529. As a threshold matter, objective medical evidence must exist that demonstrates that the claimant has a medical impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. § 404.1529(a). If the medical evidence shows such an impairment, then the ALJ must evaluate the intensity and persistence of the claimant’s symptoms so that the ALJ can determine how the claimant’s symptoms limit his or her capacity for work. See 20 C.F.R. § 404.1529(c). The evaluation of subjective symptoms necessarily involves credibility determinations and such determinations are for the fact-finder. See Brown, 794 F.2d at 706. The ALJ may not reject a claimant’s statements about the intensity and persistence of his or her symptoms or about the effect of the symptoms on his or her ability to work solely because the available objective medical evidence does not substantiate the claimant’s statements. See 20 C.F.R. § 404.1529. All information submitted by the claimant must be considered, including her statements and evidence submitted by the claimant’s treating, examining and consulting physicians. See id. In this case, the ALJ found, with little discussion, that the objective evidence did not substantiate the severity of the plaintiffs symptoms. See AR at 15. The ALJ continued his evaluation, nonetheless, and considered the credibility of the plaintiffs subjective claims. See AR at 13. The ALJ discounted the severity of the" }, { "docid": "19717156", "title": "", "text": "cast doubt on earlier examinations, like that of Dr. DeJesus on May 6, 2008, which found Plaintiff could work without restrictions. Id. at 391. Indeed, no other physician found Plaintiff could work without restrictions. For all of these reasons, the Court concludes the ALJ erred in discrediting the medical opinions of Plaintiffs treating physicians. B. Plaintiffs Credibility Plaintiff also argues the ALJ improperly rejected Plaintiffs description of his pain and the extent of his impairments. A Plaintiffs “subjective [evaluation of his] pain is an important factor to be considered in determining disability.” Perez v. Barnhart, 234 F.Supp.2d 336, 340 (S.D.N.Y.2002) (Knapp, J.) (quoting Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir.1984)); cf. Chase v. Astrue, No. 11-CV-0012, 2012 WL 2501028, at *12 (E.D.N.Y. June 28, 2012) (Mauskopf, J.) (“Evidence of pain is an important element in the adjudication of [disability insurance benefits] claims, and must be thoroughly considered in calculating the functional capacity of a claimant.” (citing, inter alia, Ber v. Celebrezze, 332 F.2d 293, 298-99 (2d Cir.1964))). While an ALJ has the discretion not “to credit [claimant’s] testimony about the severity of [his] pain and the functional limitations it caused,” Rivers v. Astrue, 280 Fed.Appx. 20, 22 (2d Cir.2008), the assessment must be made “in light of medical findings and other evidence,” Mimms, 750 F.2d at 186 (internal quotation marks omitted). “[S]ymptoms, including pain, will be determined to diminish [a claimant’s] capacity for basic work activities to the extent that ... [they] can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4). To that end, the Commissioner has established a two-step inquiry to evaluate a claimant’s contentions of pain. See 20 C.F.R. § 404.1529(c). First, the ALJ must determine whether the claimant suffers from a “medically determinable impairment! ] that could reasonably be expected to produce” the pain alleged. 20 C.F.R. § 404.1529(c)(1). “Second, the ALJ must evaluate the intensity and persistence of those symptoms considering all of the available evidence; and, to the extent that the claimant’s pain contentions are not substantiated by the objective medical evidence, the ALJ" }, { "docid": "21689692", "title": "", "text": "in evaluating the plaintiffs disability claim at Step One. See AR at 11-12. The records include a report from treating physician Dr. Hynes and reports from an examining physician, a podiatrist, and a consulting physician. See id. Several of the physicians whose reports the ALJ cited to, including the examining physician and podiatrist, had only one opportunity to examine the plaintiff. In contrast, the plaintiffs relationship with Dr. Hynes was an ongoing relationship. As such, the ALJ should have accorded controlling, binding weight to the reports of Dr. Hynes and Dr. Endeshaw, the other treating physician. See Williams, 997 F.2d at 1498. At no point, however, did the ALJ differentiate between the evidence from the treating physicians and the evidence from other medical experts. See AR at 11-12. Instead, the ALJ summarily rejected the evidence of all of the physicians as insufficient to demonstrate the existence of a disabling impairment. See AR at 12. Moreover, the ALJ did not cite to the records of one of the treating physicians, Dr. Endeshaw. See AR at 10-18. This oversight is troubling since Dr. Endesh-aw’s records indicate that the plaintiff indeed suffers from diabetes mellitus with neuropathy, a listed impairment that is presumptively disabling. See AR at 179. The ALJ’s decision leaves unanswered the question of exactly what legal standard he applied in weighing the plaintiffs treating physicians’ opinions. Consequently, the court determines that remand is appropriate in this situation to allow the ALJ to reweigh the evidence pursuant to the treating-physician rule. On remand, if the ALJ chooses not to give binding weight to the findings of the treating physicians, then he must explain the reasons for this decision. See Williams, 997 F.2d at 1498. B. The ALJ Failed to Support With Substantial Evidence His Determination That the Plaintiff’s Statements Concerning Her Impairments Are Not Entirely Credible The plaintiff next argues that the objective and subjective evidence fails to support the ALJ’s determination that the plaintiffs claims of pain are not entirely credible. See PL’s Mot. for J. of Rev. at 12-17. The ALJ concluded that the plaintiffs statements regarding her symptoms" }, { "docid": "8246529", "title": "", "text": "adopt the opinions of the state agency physicians or plaintiffs treating physicians (see Pl.’s Mem. Supp. Reversal at 9), it was the ALJ’s duty to consider the entire record rather than to simply adopt the views of one set of physicians. B. The ALJ Properly Evaluated Plaintiffs Subjective Complaints of Pain Plaintiffs second basis for reversal of the SSA’s decision is that the ALJ failed to properly assess his subjective complaints of pain. (PL’s Mem. Supp. Reversal at 10-12.) SSA regulations prescribe a two-step process for determining whether a claimant is disabled by pain. 20 C.F.R. §§ 404.1529, 416.929. “First, the claimant must adduce ‘medical signs or laboratory’ findings evidencing a ‘medically determinable impairment that could reasonably be expected to produce’ the alleged pain.” Butler v. Barnhart, 353 F.3d 992, 1004 (D.C.Cir.2004) (quoting 20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b)). Second, the ALJ must evaluate “the persistence and intensity of the claimant’s pain as well as the extent to which it impairs [his] ability to work.” Id. (citing 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1)). In making this evaluation, the ALJ considers all the available evidence, including the claimant’s history, the medical signs and laboratory findings, and statements from the claimant, physicians, and others. 20 C.F.R. ’§§ 404.1529(c)(1), 416.929(c)(1). Moreover, the step two evaluation requires the ALJ to make a finding on the credibility of the claimant and set forth specific reasons for that finding based on a consideration of the entire record. SSR 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements, 1996 SSR LEXIS 4, at *2-*4 (July 2,1996); Butler, 353 F.3d at 1005. While the ALJ did not explicitly discuss the two-step determination process, he nevertheless made findings that met each of these requirements. Consistent with step one, the ALJ found that plaintiff had “the following severe, medically determined impairment: a back disorder” diagnosed as lumbar spondylosis and radiculopathy. (AR at 19.) Consistent with step two, the ALJ found plaintiff “credible with regard to the presence of some degree of discomfort and his inability to do some types of work,” but “not credible with regard to" }, { "docid": "22753893", "title": "", "text": "two programs. See Coria v. Heckler, 750 F.2d 245, 247 (3d Cir.1984) (noting that “the ALJ could reasonably disregard so much of the physicians’ reports as set forth their conclusions as to worker compensation claims.”). Here, the ALJ recognized the limited significance of Dr. White’s report. Finally, Hartranft argues that the ALJ failed to take account of his subjective symptoms, including pain, in determining that he could still perform the full range of light work. The ALJ determined . that Hartranft had a discernible medical condition that could cause his pain, but that his statements concerning his pain and its impact on his ability to work were not entirely credible in light of the entire record. Allegations of pain and other subjective symptoms must be supported by objective medical evidence. ■ See 20 C.F.R. § 404.1529. Once an ALJ concludes that a medical impairment that could reasonably cause the alleged symptoms exists, he or she must evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects the individual’s ability to work. This obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it. See 20 C.F.R. § 404.1529(c). Here, the ALJ concluded that Hartranft had a discernible medical condition that could reasonably cause the pain Hartranft complained of. However, the ALJ thought that Hartranft’s testimony about the extent of his pain was exaggerated, and that Hartranft could perform light duty work despite his complaints of incapacitating pain. That ruling is clearly supported by substantial evidence in this record. The ALJ cited specific instances where Har-tranft’s complaints about pain and other subjective symptoms were inconsistent with: 1) the objective medical evidence of record; 2) Hartranft’s testimony as to his rehabilitation and medication regimen; and 3) Hartranft’s own description of his daily activities. IV. Accordingly, we will affirm the order of the District Court upholding the ALJ’s decision. . \"Residual functional capacity” is defined as that which an individual is still able to do despite" }, { "docid": "5574393", "title": "", "text": "what weight the ALJ assigned to Dr. Elstein’s opinion or to the opinions of the other physicians who treated or examined Plaintiff. In his decision, the ALJ did not mention, let alone discuss, the opinions of the attending physicians at Community General Hospital and the two consultative examiners. More critically, the ALJ did not recite or apply any of the factors set forth at 20 C.F.R. § 404.1527(d)(2) in evaluating each physician’s opinion. Without the benefit of such analysis, it is impossible to determine whether the ALJ’s decision is supported by substantial evidence. Accordingly, the Court recommends that this portion of the ALJ’s decision be reversed and remanded for further proceedings consistent with this report. B. Assessment of Plaintiffs Residual Functional Capacity (“RFC”) Plaintiff argues that the ALJ’s rejection of her statements regarding the extent of her pain is not supported by substantial evidence. The Court agrees. In order to determine whether a claimant possesses the RFC to perform some less demanding but gainful work that is available in the national economy, the Commissioner must consider all available relevant evidence. Social Security Ruling 96-8p, 61 Fed.Reg. 34474, 34477 (Jul. 2, 1996). Factors to be considered include the following: (1) the claimant’s medical history; (2) medical signs and laboratory findings; (3) the effects of treatment; (4) the claimant’s reports of daily activities; (5) lay evidence; (6) recorded observations; (7) statements from the claimant’s medical sources; (8) the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment; (9) evidence from the claimant’s attempts to work; (10) the claimant’s need for a structured living environment; and (11) any available work evaluations. Id. Because a symptom may cause exertional and/or non-exertional limitations, it may functionally limit the claimant’s ability to work. Social Security Ruling 96-4p, 61 Fed.Reg. 34488, 34489 (Jul. 2, 1996). Thus, the ALJ’s consideration of a claimant’s symptoms, such as pain, is an important step in the determination of the claimant’s RFC. 20 C.F.R. § 404.1545(a). The regulations of the Commissioner clearly state how a claimant’s complaints of pain are to be evaluated. This evaluation includes an" }, { "docid": "16147986", "title": "", "text": "“the claimant’s subjective complaints are found to be inconsistent with an individual experiencing such debilitating symptomology” and that “the clinical and objective fin[dings] are inconsistent with an individual who is unable to perform all substantial activity.” (T. 15). Neither of these statements explains the basis for the ALJ’s credibility determination under 20 C.F.R. § 404.1529 or Social Security Ruling 96-7p. The issue is not whether the clinical and objective findings are consistent with an inability to perform all substantial activity, as the ALJ concluded, but whether plaintiffs statements about the intensity, persistence, or functionally limiting effects of her neck and back pain are consistent with the objective medical and other evidence. Social Security Ruling 96-7p, 1996 WL 374186, at *2. The ALJ did carefully review the various factors relevant to the second step of the credibility determination, including plaintiffs daily activities, the type, dosage, and effectiveness of medications, other treatment to relieve pain, and the fact that no physician has recommended surgical intervention. See 20 C.F.R. § 404.1529(c). Nevertheless, the Court cannot determine whether the ALJ’s findings based on those factors are the result of the proper application of the Regulations and Rulings. In this respect, I make no determination regarding whether the ALJ’s credibility analysis is supported by substantial evidence. On remand, the Commissioner must clarify the basis of his credibility analysis and set forth his findings in accordance with the two-step process outlined in Social Security Ruling 96-7p and 20 C.F.R. § 404.1529. V. Residual Functional Capacity In addition, remand is required because the ALJ’s RFC finding is based on legal error. The ALJ found that plaintiff retained the RFC to perform less than the full range of sedentary work. In reaching this conclusion, the ALJ did not cite to a medical opinion in the record. It is unclear whether the ALJ relied on the opinions of plaintiffs treating physicians, or the opinions of the examining and consulting physicians. In fact, there is very little in the record regarding plaintiffs ability to perform basic work activities. In this respect, the ALJ needs to further develop the record. In" }, { "docid": "19717145", "title": "", "text": "“[a]fter careful consideration of the evidence, the [ALJ found] that the [Plaintiffs] medically determinable impairments could reasonably be expected to cause the alleged symptoms.” Id. at 44. However, the ALJ found that Plaintiffs [statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” Id. As discussed infra, the ALJ did not conduct the multi-factor credibility analysis required under 20 C.F.R. § 404.1529(c)(3). Nor did the ALJ address how Plaintiffs continuous treatment for pain over a more than two-year period, including numerous medications, CESIs, and facet blocks, affects Plaintiffs credibility. III. Alleged Errors by the ALJ Plaintiff argues the ALJ erred at step five of the process when the ALJ concluded that Plaintiff has sufficient residual capacity to perform the full range of light work and therefore is not entitled to disability benefits. Plaintiff points to three specific errors the ALJ allegedly made in reaching this decision: 1) the ALJ failed to give controlling weight to the treating physician’s reports; 2) the ALJ improperly rejected Plaintiffs description of his pain and the extent of his impairments; and 3) the ALJ improperly evaluated the medical evidence. This Court agrees. A. Treating Physician Rule In evaluating the available medical evidence as part of an application for disability benefits, “[t]he law gives special evidentiary weight to the opinion of the treating physician[s].” Clark, 143 F.3d at 118. Specifically, the regulations provide: Generally, [the SSA] give[s] more weight to opinions from [a claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairments) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. 20 C.F.R. § 404.1527(c)(2). For these reasons, the opinion of a treating physician must be given controlling weight on the issue of the nature and severity of a claimant’s impairments, if that opinion “is well-supported by medically acceptable" }, { "docid": "8246530", "title": "", "text": "the ALJ considers all the available evidence, including the claimant’s history, the medical signs and laboratory findings, and statements from the claimant, physicians, and others. 20 C.F.R. ’§§ 404.1529(c)(1), 416.929(c)(1). Moreover, the step two evaluation requires the ALJ to make a finding on the credibility of the claimant and set forth specific reasons for that finding based on a consideration of the entire record. SSR 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements, 1996 SSR LEXIS 4, at *2-*4 (July 2,1996); Butler, 353 F.3d at 1005. While the ALJ did not explicitly discuss the two-step determination process, he nevertheless made findings that met each of these requirements. Consistent with step one, the ALJ found that plaintiff had “the following severe, medically determined impairment: a back disorder” diagnosed as lumbar spondylosis and radiculopathy. (AR at 19.) Consistent with step two, the ALJ found plaintiff “credible with regard to the presence of some degree of discomfort and his inability to do some types of work,” but “not credible with regard to his allegations that he is unable to perform any type of work....” (AR at 21.) This credibility assessment was based on the same evidence on which the ALJ relied for his RFC assessment, including the objective medical evidence and plaintiffs testimony. (See AR at 20-21.) Considering this evidence, the ALJ found that plaintiff experienced moderate pain, which limited him to “work which requires a low stress routine” and that limited his ability to “perform[ ] activities within a schedule and maintain[] regular attendance for reliability purposes and [to] be[] punctual,” as well as his ability to “completef ] a normal work day or workweek without an unreasonable length and number of rest periods.” (AR at 20.) Thus, the ALJ found that due to pain, plaintiff could only perform a limited range of light or alternatively sedentary work. (AR at 20, 24.) In arriving at this conclusion, the ALJ complied with the SSA’s two-step procedure for determining whether plaintiff was disabled by pain, including an appropriate consideration of plaintiffs subjective complaints. C. The ALJ Adequately Developed" }, { "docid": "20257320", "title": "", "text": "record clearly generates an issue as to a particular listing in the LOI and the ALJ fails properly to identify the LOI considered at Step Three, and to explain clearly the medical evidence of record supporting the conclusion reached at that critical stage of the analysis, a remand can be expected to result, except in those circumstances where it is clear from the record which listing or listings in the LOI were considered, and there is elsewhere in the ALJ’s opinion an equivalent discussion of the medical evidence relevant to the Step Three analysis which allows this Court readily to determine whether there was substantial evidence to support the ALJ’s Step Three conclusion. C. Pain Analysis Mr. Schoofield also contends that the ALJ failed properly to evaluate his pain and its effects on his ability to work. The Commissioner submits that the ALJ properly evaluated the allegations of pain in accordance with regulations, citing 20 C.F.R. §§ 404.1529, 416.929. Pain itself can be disabling, and it is incumbent upon the ALJ to evaluate the effect of pain on a claimant’s ability to function. Walker v. Bowen, 889 F.2d 47, 49 (4th Cir.1989). In this Circuit, Mr. Schoofield’s allegations of pain must be analyzed under a two-step process. Craig v. Chater, 76 F.3d 585, 594 (4th Cir.1996). First, there must be objective evidence showing the existence of medical impairment(s) that reasonably could be expected to cause the pain the plaintiff alleges. Id. If a claimant makes this threshold showing, then the intensity and persistence of the claimant’s alleged pain, as well as the extent to which it affects his ability to work, must be evaluated based upon all the evidence in the record. Id. The ALJ’s decision stated: [A]s part of the residual functional capacity assessment, the Administrative Law Judge has considered claimant’s allegations of subjective symptoms and functional limitations. 20 C.F.R. 404.1529, 416.929, Social Security Ruling 86-7p, and Craig v. Chater, 76 F.3d 585 (4th Cir.1996). The Claimant testified that he suffers from a sharp back pain, as well as from a severe anxiety depression that produces suicidal thoughts, irritability" }, { "docid": "23320666", "title": "", "text": "when she fell down several flights of stairs on February 28, 1992. Plaintiff alleged a number of symptoms, including degeneration of spinal discs, problems with her joints, tremors, difficulty concentrating and sleeping, and depression. The SSA denied plaintiffs application initially and upon reconsideration. In denying Kamerling’s request for benefits, the SSA stated that, although plaintiffs physical and emotional problems prevented her from returning to her previous job as an attorney, the medical evidence indicated that plaintiff had the ability to perform work at the sedentary level. Plaintiff appealed, but, after making a request for a hearing before an administrative law judge, Kamerling waived her right to appear and, after being fully advised of her right to counsel, proceeded pro se. No hearing was held and, on January 31, 1995, the ALJ issued a decision finding Kamerling not to be disabled. Applying the familiar five-step sequential evaluation for determining whether a person is disabled, see 20 C.F.R. § 416.920, the ALJ concluded that Kamerling was not disabled because, although plaintiffs physical and emotional symptoms, when considered together, constituted severe impairments that precluded plaintiff from performing her past work as an attorney and a teacher, plaintiff nevertheless retained the residual functional capacity to perform sedentary work. The ALJ found that the objective medical evidence did not support plaintiffs subjective complaints of disabling pain or her allegations of severe functional incapacity. In reaching this conclusion, the ALJ discounted the residual functional capacity assessments and opinions of “permanent” and “total” disability provided by plaintiffs treating physicians. Because the ALJ found that the treating physicians’s opinions were not adequately supported by medically acceptable evidence and were inconsistent with other substantial evidence in the record (including the findings of both independent and state agency physicians), the ALJ determined that the treating physicians’ opinions were not entitled to controlling weight under 20 C.F.R. § 404.1527. After considering plaintiffs allegations of physical disability, the ALJ proceeded to evaluate the medical evidence concerning her mental health. Included in the medical record were reports from plaintiffs psychiatrist, which indicate that Kamerling is depressed, suffers from significant pain, cannot concentrate effectively," }, { "docid": "23275982", "title": "", "text": "for purposes of the Act, see 20 C.F.R. §§ 404.1520, 416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), the ALJ must determine whether a claimant who has a severe impairment nonetheless has the “residual functional capacity” (“RFC”) to perform work available to him. See 20 C.F.R. § 404.1520, 404.1560. A claimant’s RFC is “the most [he] can still do despite [his] limitations.” 20 C.F.R. § 416.945(a)(1). When determining a claimant’s RFC, the ALJ is required to take the claimant’s reports of pain and other limitations into account, 20 C.F.R. § 416.929; see McLaughlin v. Sec’y of Health, Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir.1980), but is not required to accept the claimant’s subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant’s testimony in light of the other evidence in the record. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). The regulations provide a two-step process for evaluating a claimant’s assertions of pain and other limitations. At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). That requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the claimant does suffer from such an impairment, at the second step, the ALJ must consider “the extent to which [the claimant’s] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” of record. Id. The ALJ must consider “[statements [the claimant] or others make about [his] impairment(s), [his] restrictions, [his] daily activities, [his] efforts to work, or any other relevant statements [he] make[s] to medical sources during the course of examination or treatment, or to [the agency] during interviews, on applications, in letters, and in testimony in [its] administrative proceedings.” 20 C.F.R. § 404.1512(b)(3); see also 20 C.F.R. § 404.1529(a); S.S.R. 96-7p. II. The ALJ’s Credibility Determination Purportedly applying this framework, the ALJ found that Genier’s “medically" }, { "docid": "8246528", "title": "", "text": "to the severity of plaintiffs emotional impairments, which barred a judicial award of benefits where, inter alia, plaintiffs treating psychiatrist originally opined that plaintiff was disabled from doing any work but later stated that he might be a “suitable candidate for job training”). Plaintiff also argues that the ALJ ignored Dr. Wallace’s opinions that plaintiffs condition was slowly progressive and that plaintiff was limited in his abilities to walk, stand, stoop, kneel, lift, reach, push, and pull. (Pl.’s Mem. Supp. Reversal at 8.) The record, however, does not support this claim. In his Medical Examination Report, Dr. Wallace indicated that plaintiffs capacities for walking, standing, stooping, kneeling, lifting, reaching, pushing, and pulling were all limited but not entirely precluded. (AR at 194.) Consistent with this opinion, the ALJ found limitations on plaintiffs abilities to engage in essentially all of these activities. Accordingly, plaintiffs contention that the ALJ failed to properly consider the opinions of his treating physicians must fail. While plaintiff contends that the ALJ’s opinion is “without medical basis” because he did not wholly adopt the opinions of the state agency physicians or plaintiffs treating physicians (see Pl.’s Mem. Supp. Reversal at 9), it was the ALJ’s duty to consider the entire record rather than to simply adopt the views of one set of physicians. B. The ALJ Properly Evaluated Plaintiffs Subjective Complaints of Pain Plaintiffs second basis for reversal of the SSA’s decision is that the ALJ failed to properly assess his subjective complaints of pain. (PL’s Mem. Supp. Reversal at 10-12.) SSA regulations prescribe a two-step process for determining whether a claimant is disabled by pain. 20 C.F.R. §§ 404.1529, 416.929. “First, the claimant must adduce ‘medical signs or laboratory’ findings evidencing a ‘medically determinable impairment that could reasonably be expected to produce’ the alleged pain.” Butler v. Barnhart, 353 F.3d 992, 1004 (D.C.Cir.2004) (quoting 20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b)). Second, the ALJ must evaluate “the persistence and intensity of the claimant’s pain as well as the extent to which it impairs [his] ability to work.” Id. (citing 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1)). In making this evaluation," }, { "docid": "21689693", "title": "", "text": "This oversight is troubling since Dr. Endesh-aw’s records indicate that the plaintiff indeed suffers from diabetes mellitus with neuropathy, a listed impairment that is presumptively disabling. See AR at 179. The ALJ’s decision leaves unanswered the question of exactly what legal standard he applied in weighing the plaintiffs treating physicians’ opinions. Consequently, the court determines that remand is appropriate in this situation to allow the ALJ to reweigh the evidence pursuant to the treating-physician rule. On remand, if the ALJ chooses not to give binding weight to the findings of the treating physicians, then he must explain the reasons for this decision. See Williams, 997 F.2d at 1498. B. The ALJ Failed to Support With Substantial Evidence His Determination That the Plaintiff’s Statements Concerning Her Impairments Are Not Entirely Credible The plaintiff next argues that the objective and subjective evidence fails to support the ALJ’s determination that the plaintiffs claims of pain are not entirely credible. See PL’s Mot. for J. of Rev. at 12-17. The ALJ concluded that the plaintiffs statements regarding her symptoms “are not entirely credible in fight of the degree of medical treatment required, the reports of the treating and examining practitioners, and the findings made on examination.” AR at 18. Additionally, the ALJ determined that the plaintiffs daily activities are not as “limited to the extent one would expect, given the complaints of disabling symptoms and limitations.” Id. Because the court concludes that the ALJ’s findings regarding the plaintiffs impairments are not supported by substantial evidence, the court remands the matter for further development of the record. Evidence of subjective pain is relevant to the ALJ’s ultimate determination of disability. See Simms, 877 F.2d at 1051. Under the regulations, pain is a symptom and its relevance is governed by 20 C.F.R. § 404.1529. As a threshold matter, objective medical evidence must exist that demonstrates that the claimant has a medical impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. § 404.1529(a). If the medical evidence shows such an impairment, then the ALJ must evaluate the intensity and persistence" } ]

[ { "docid": "19905834", "title": "", "text": "persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee. 29 U.S.C. § 113(c). The Supreme Court has held that “the critical element in determining whether the provisions of the Norris-La-Guardia Act apply is whether ‘the employer-employee relationship [is] the matrix of the controversy.’ ” Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 712, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982) (quoting Columbia River Packers Ass’n., Inc. v. Hinton, 315 U.S. 143, 147, 62 S.Ct. 520, 86 L.Ed. 750 (1942)). “The test is satisfied where an employer and a union representing its employees are the disputants, and their dispute concerns the interpretation of the collective bargaining agreement that defines their relationship.” Int’l Union United Auto., Aerospace and Agric. Implement Workers of Am. v. Lester Eng’g Co., 718 F.2d 818, 823 (6th Cir.1983). The matrix of the dispute at issue here does not involve the employer-employee relationship, but rather relationships between employees at the plant. At least one other court, moreover, has found the Norris-LaGuardia Act does not bar an internal union dispute over work assignments. See Drywall Tapers & Pointers of Greater New York, Local 1974 v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n, 537 F.2d 669, 674 (2d Cir.1976) (dispute between painters’ union and plasters’ union over work assignment agreement was not covered under the Norris-LaGuardia Act). Thus, the Norris-LaGuardia Act does not bar this court’s jurisdiction. II. Standing Defendants also argue plaintiffs have suffered no injury in fact and therefore lack standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). To demonstrate an injury in fact, a plaintiff must show the injury is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 180, 120 S.Ct. 693. Plaintiffs allege that after the implementation of the Lines of Demarcation, Local 12 resolved several job assignment grievances adversely against machine repairmen that otherwise would have been resolved in their favor." } ]

[ { "docid": "22297168", "title": "", "text": "it required arbitration of the question whether the work stoppage violated the collective-bargaining agreement. New Orleans Steamship Assn. v. General Longshore Workers, 626 F. 2d 455 (1980). However, the Court of Appeals disagreed with the District Court’s conclusion that the provisions of the Norris-La Guardia Act are inapplicable to politically motivated work stoppages. Relying on Buffalo Forge, the Court of Appeals further held that the Employer was not entitled to an injunction pending arbitration because the underlying dispute was not arbitrable. We granted certiorari, 450 U. S. 1029 (1981), and agree with the Court of Appeals that the provisions of the Norris-La Guardia Act apply to this case, and that, under Buffalo Forge, an injunction pending arbitration may not issue. II Section 4 of the Norris-La Guardia Act provides in part: “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute . . . from doing, whether singly or in concert, any of the following acts: “(a) Ceasing or refusing to perform any work or to remain in any relation of employment.” 47 Stat. 70, 29 U. S. C. § 104. Congress adopted this broad prohibition to remedy the growing tendency of federal courts to enjoin strikes by narrowly construing the Clayton Act’s labor exemption from the Sherman Act’s prohibition against conspiracies to restrain trade, see 29 U. S. C. §52. See, e. g., H. R. Rep. No. 669, 72d Cong., 1st Sess., 7-8, 10-11 (1932). This Court has consistently given the anti-injunction provisions of the Norris-La Guardia Act a broad interpretation, recognizing exceptions only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy. See, e. g., Boys Markets, Inc. v. Retail Clerks, 398 U. S., at 249-253; Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U. S. 30, 39-42 (1957). The Boys Markets exception, as refined in Buffalo Forge Co. v. Steelworkers, 428 U. S. 397 (1976)," }, { "docid": "19905832", "title": "", "text": "ORDER CARR, Chief Judge. This is a dispute between machine repairmen and the International Union United Automobile, Aerospace and Agricultural Implement Workers of America, Local. No. 12 (Local 12) regarding the distribution of certain job duties at the Daimler-Chrysler Jeep Plant in Toledo, Ohio. Plaintiffs argue Local 12 breached its duty of fair representation to them, as members. Jurisdiction exists under 29 U.S.C. § 159(a) and 28 U.S.C. § 1337. Pending is plaintiffs’ motion for a preliminary injunction. For the following reasons, that motion will be denied. Background Plaintiffs are machine repairmen at the DaimlerChrysler Toledo Jeep Plant. They are members of Local 12. Local 12 is a collective bargaining association that represents workers at the plant, including inter alia, machine repairmen, electricians, and millwrights. On June 12, 2005, Local 12 and Daimler-Chrysler issued two documents, the Lines of Demarcation, that allocated work at the plant among skilled trade workers, including machine repairmen, electricians, and millwrights. Under these directives, work was shifted from one trade to another. Plaintiffs allege Local 12 breached its duty of fair representation by allocating a disproportionate amount of work previously done by machine repairmen work to be performed thereafter by electricians and millwrights. Discussion I. Jurisdiction As an initial matter, defendants argue this court lacks jurisdiction to issue a preliminary injunction under the Norris-La-Guardia Act, 29 U.S.C. § 101, et seq. Section 101 provides: No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter. 29 U.S.C. § 101. Plaintiffs contend § 101’s jurisdictional bar is inapplicable to this dispute because the parties’ disagreement does not stem from a labor dispute. The Act defines a labor disputes as: The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of" }, { "docid": "14206671", "title": "", "text": "& Lake Erie R.R. Co. v. Railway Labor Executives’ Ass’n, 491 U.S. 490, 514, 109 S.Ct. 2584, 2598, 105 L.Ed.2d 415 (1989); so must the general prohibitions on equity jurisdiction contained in the Norris-LaGuardia Act give way to the more specific grant of such jurisdiction under RICO. More specifically, the Norris-LaGuardia anti-injunction provision must give way to the compelling governmental interest of eliminating the hold of organized crime on labor unions as contemplated by RICÓ. Enforcement of RICO’s policies through the All Writs Act is, therefore, both necessary and proper, even when it results in an injunction against arbitrating the “labor dispute” between Local 1814 and NYSA. A similar approach was taken by Judge Friendly in Letter Carriers, where he sought to reconcile the tensions between a literal reading of the Norris-LaGuardia Act and certain provisions of the subsequently-enacted Landrum-Griffin Act. He concluded that by reading “the Norris-LaGuardia Act as pro tanto amended by the recent trusteeship provisions [of the Landrum-Griffin Act], we ensure the viability of the latter enactment” and create only a limited intrusion on Norris-LaGuardia’s broad prohibition against injunctions; to hold otherwise “would be to render the trusteeship scheme established by Congress in large measure nugatory.” Letter Carriers, 449 F.2d at 919. Accord Drywall Tapers & Painters v. Operative Plasterers’ & Cement Masons Int’l, 537 F.2d 669, 673-74 (2d Cir.1976). These views apply equally to the interplay between Norris-LaGuardia and RICO. Were we to hold other than we do, RICO’s broadly-construed remedial powers would have virtually no vitality in a labor setting. By holding as we do, we give full effect to the specific mandates and policies of the RICO statute while making only a minor intrusion into Norris-LaGuardia’s broad prohibition against injunctions in “labor disputes”. Congress intended this result. Moreover, our recent Star Market decision supports this conclusion. There, we noted that collective bargaining agreements and [a RICO-grounded] Consent Decree address different problems and serve different purposes. The former governs the daily relations between particular employers and their employees, while the latter is an attempt to rebuild the infrastructure of an entire national labor organization [after" }, { "docid": "22297169", "title": "", "text": ". from doing, whether singly or in concert, any of the following acts: “(a) Ceasing or refusing to perform any work or to remain in any relation of employment.” 47 Stat. 70, 29 U. S. C. § 104. Congress adopted this broad prohibition to remedy the growing tendency of federal courts to enjoin strikes by narrowly construing the Clayton Act’s labor exemption from the Sherman Act’s prohibition against conspiracies to restrain trade, see 29 U. S. C. §52. See, e. g., H. R. Rep. No. 669, 72d Cong., 1st Sess., 7-8, 10-11 (1932). This Court has consistently given the anti-injunction provisions of the Norris-La Guardia Act a broad interpretation, recognizing exceptions only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy. See, e. g., Boys Markets, Inc. v. Retail Clerks, 398 U. S., at 249-253; Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U. S. 30, 39-42 (1957). The Boys Markets exception, as refined in Buffalo Forge Co. v. Steelworkers, 428 U. S. 397 (1976), is relevant to our decision today. In Boys Markets, this Court re-examined Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962), which held that the Norris-La Guardia Act precludes a federal district court from enjoining a strike in breach of a collective-bargaining agreement, even where that agreement contains provisions for binding arbitration of the grievance concerning which the strike was called. 398 U. S., at 237-238. The Court overruled Sinclair and held that, in order to accommodate the anti-injunction provisions of Norris-La Guardia to the subsequently enacted provisions of § 301(a) and the strong federal policy favoring arbitration, it was essential to recognize an exception to the anti-injunction provisions for cases in which the employer sought to enforce the union’s contractual obligation to arbitrate grievances rather than to strike over them. 398 U. S., at 249-253. After Boys Markets, the Courts of Appeals divided on the question whether a strike could be enjoined under the Boys Markets exception to the Norris-La Guardia Act pending arbitration, when the strike was not over a grievance that" }, { "docid": "12375716", "title": "", "text": "any person or persons participating or interested in such dispute ... from doing, whether singly or in concert, any of the following acts: (a) Ceasing or refusing to perform any work or to remain in any relation of employment; (e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence; (f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute; (i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified. 29 U.S.C. § 104. However, in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) (Boys Markets), the Supreme Court recognized the following narrow exception to the anti-injunction provisions of the NorrisLaGuardia Act: in order to accommodate the anti-injunction provisions of Norris-LaGuardia to the subsequently enacted provisions of § 301(a) [of the Labor Management Relations Act] and the strong federal policy favoring arbitration, it was essential to recognize an exception to the anti-injunction provisions for cases in which the employer sought to enforce the union’s contractual obligation to arbitrate grievances rather than to strike over them. Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 708, 102 S.Ct. 2672, 2678, 73 L.Ed.2d 327 (1982), citing Boys Markets, 398 U.S. at 249-53, 90 S.Ct. at 1591-94. Under the Boys Markets exception, [a] District Court entertaining an action under § 301 [of the Labor Management Relations Act, 29 U.S.C. § 185,] may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an" }, { "docid": "14206663", "title": "", "text": "falls into one of the established decisional exceptions to the act. 2. “Labor dispute”: the decisional exceptions. As we have noted above, the Supreme Court has recognized two narrow decisional exceptions to the jurisdiction-stripping provisions of the Norris-LaGuar-dia Act. First, the federal courts have jurisdiction to issue injunctions in “labor disputes” when necessary to accommodate Norris-LaGuardia’s “strong policy favoring arbitration”. Jacksonville Bulk Terminals, 457 U.S. at 717 n. 17, 102 S.Ct. at 2682 n. 17; Boys Markets, 398 U.S. at 252-53, 90 S.Ct. at 1593. Second, the federal courts have such equity jurisdiction when necessary to reconcile Norris-LaGuardia with the mandates of a specific federal statute. Jacksonville Bulk Terminals, 457 U.S. at 717 n. 17, 102 S.Ct. at 2682 n. 17; National Ass’n of Letter Carriers v. Sombrotto, 449 F.2d 915, 919 (2d Cir.1971) (Friendly, J.). As an initial matter, it is noteworthy that Local 1814 commenced this case seeking a “reverse Boys Markets injunction”— i.e., an injunction designed to further the Norris-LaGuardia Act’s strong policies favoring arbitration, see, e.g., Niagara Hooker Employees Union v. Occidental Chem. Corp., 935 F.2d 1370, 1376-77 (2d Cir.1991)—against NYSA, to keep it from undertaking further steps toward finalizing the consent judgment. However, the district court not only denied Local 1814 this relief; it also concluded that it had jurisdiction under the RICO statute (utilizing its concomitant powers to preserve its jurisdiction under the All Writs Act) to enjoin the arbitration because RICO—a specific federal statute designed to further an overriding congressional concern—falls within the second decisional exception “carved out” of the Norris-LaGuardia Act. Although Local 1814 has abandoned, on appeal, its request for a “reverse Boys Markets injunction”, it nevertheless argues that in the circumstances presented by this case, only an injunction favoring arbitration, and not an injunction against arbitration, would properly be within the district court's jurisdiction. See Local 1814 brief at 18 (citing Camping Const. Co. v. District Council of Iron Workers, 915 F.2d 1333, 1348 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1684, 114 L.Ed.2d 79 (1991); In re Dist. No. 1—Pacific Coast Dist., Marine Engineers’ Beneficial Ass’n, 723" }, { "docid": "21554041", "title": "", "text": "the arbitration proceedings. B With many statutes our inquiry would end with the discovery of a literal meaning so plain. However, the Supreme Court has made it clear that the Norris-LaGuardia Act is not necessarily to be construed literally in all circumstances. Enacted in 1932, the Norris-LaGuardia Act is one of the oldest surviving pieces of labor legislation in this country. More recent acts providing for more extensive regulation of labor-management relations (such as the Wagner Act, the Taft-Hartley Act, and Title VII of the Civil Rights Act of 1964) have changed the face of labor law in the United States, yet there has been no accompanying revision of the Norris-LaGuardia Act. The courts have thus been left with the task of attempting to accommodate Norris-La-Guardia to later acts in order to create a coherent whole. See generally Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235, 242-53, 90 S.Ct. 1583, 1584-88, 26 L.Ed.2d 199 (1970). The result has been that, in spite of what the Norris-LaGuardia Act says, the Supreme Court has held that federal courts do have jurisdiction to issue injunctions in some labor disputes, even in some of the circumstances covered by section 4’s outright ban. For example, it has long been settled that federal courts have jurisdiction, in spite of the Norris-LaGuardia Act, to compel a recalcitrant employer to honor its agreement to arbitrate. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457-59, 77 S.Ct. 912, 918-19, 1 L.Ed.2d 972 (1957). Moreover, when a union refuses to honor its contractual commitment to arbitrate and instead calls a strike, a federal court may grant a prohibitory injunction against the strike, Boys Markets, 398 U.S. at 253-54, 90 S.Ct. at 1594, as long as the dispute underlying the strike is arbitrable, Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 407-12, 96 S.Ct. 3141, 3147-50, 49 L.Ed.2d 1022 (1976); see also Jacksonville Bulk Terminals, 457 U.S. at 708-09, 102 S.Ct. at 2678. And among the earliest of these accommodation cases were cases in which the Court held that Norris-LaGuar-dia does not prevent courts from" }, { "docid": "14453738", "title": "", "text": "of subsection 502(a)(3) authorizing injunctive relief and the declaration of congressional policy in subsection 2(b). Under subsection 502(a)(3), the persons who may bring a civil action to enjoin violations of ERISA are the participants, beneficiaries and fiduciaries of the employee benefit plan. Employees are empowered to bring suit under subsection 502(a)(3) as participants or beneficiaries, as in the instant case, and trustees of the fund and the fund itself are empowered to bring suit under subsection 502(a)(3) as fiduciaries, as in Northwest Concrete and Central States, Southeast and Southwest Areas Pension Fund v. Admiral Merchants Motor Freight, Inc., 511 F.Supp. 38 (D.Minn.1980), aff'd, 642 F.2d 1122 (8th Cir.1981). Therefore, Congress must have intended, by the specific authorization of injunctive and other appropriate relief in either of these situations under subsection 502(a)(3), to provide for a limited accommodation with the anti-injunction provisions of the Norris-LaGuardia Act. Defendant points out that “the Supreme Court has recently reaffirmed the view that exceptions to the prohibitions of the Norris-LaGuardia Act are to be narrowly construed,” citing Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982). The Supreme Court’s observation, however, reads in full, as follows: “This Court has consistently given the anti-injunction provisions of the Norris-LaGuardia Act a broad interpretation, recognizing exceptions only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy.” Jacksonville Bulk Terminals, 457 U.S. at 708, 102 S.Ct. at 2678 (emphasis added). Subsection 502(a)(3) of ERISA constitutes “specific federal legislation” that requires recognition of a limited accommodation with the strictures of the Norris-LaGuardia Act. In recognizing what has become known as the “Boys Markets exception,” the Supreme Court was not deterred by the failure of Congress to declare in the legislative history or elsewhere that section 301 of the Labor Management Relations Act (hereinafter LMRA), 29 U.S.C. § 185, was intended to provide an exception to the anti-injunction provisions of the Norris-LaGuardia Act. Moreover, as Justice Black correctly noted in dissent, subsection 301(a) “says nothing at all about granting injunctions.” Boys Markets, 398 U.S." }, { "docid": "14206648", "title": "", "text": "his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid and protection; therefore, the following definitions of and limitations upon the jurisdiction and authority of the courts of the United States are enacted. 29 U.S.C. § 102. The Norris-LaGuardia Act is not to “be read in a spirit of mutilating narrowness”, United States v. Hutcheson, 312 U.S. 219, 235, 61 S.Ct. 463, 467, 85 L.Ed. 788 (1941); rather, it is to be given “a broad interpretation”. Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 708, 102 S.Ct. 2672, 2678, 73 L.Ed.2d 327 (1982). See also Jou-Jou Designs, Inc. v. International Ladies Garment Workers Union, 643 F.2d 905, 911 (2d Cir.1981). Despite these general principles of broad application, the Supreme Court has recognized that a district court does have jurisdiction to grant injunctive relief under at least two decisional exceptions to the act: (1) when the Norris-La-Guardia Act must be reconciled with the mandates of a specific federal statute, Boys Markets, 398 U.S. at 251, 90 S.Ct. at 1592; Jacksonville Bulk Terminals, 457 U.S. at 717 n. 17, 102 S.Ct. at 2682 n. 17, and (2) when injunctive relief is necessary to accommodate Norris-LaGuardia’s “strong policy favoring arbitration.” Id. See Boys Markets, 398 U.S. at 252-53, 90 S.Ct. at 1593. Cf. Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 412-23, 96 S.Ct. 3141, 3149-55, 49 L.Ed.2d 1022 (1976) (although the issue of whether a strike violated “no-strike clause” in collective bargaining agreement was ar-bitrable, an injunction of the strike itself not allowed by Norris-LaGuardia). Local 1814 argues" }, { "docid": "14206662", "title": "", "text": "See Burlington Northern R.R. v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 441-42, 107 S.Ct. 1841, 1848-49, 95 L.Ed.2d 381 (1987); Jacksonville Bulk Terminals, 457 U.S. at 712-13, 102 S.Ct. at 2680. Although departures from strict adherence to statutory language are justified in “rare and exceptional circumstances”, see, e.g., Tennessee Valley Authority v. Hill, 437 U.S. 153, 187 n. 33, 98 S.Ct. 2279, 2298 n. 33, 57 L.Ed.2d 117 (1978) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)), normally for this court to narrow the statutory definition of “labor dispute” would run contrary to congress’s, as well as the Supreme Court’s, commands. See Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 369, 80 S.Ct. 779, 783, 4 L.Ed.2d 797 (1960). We thus conclude that the instant controversy falls within the class of cases defined by congress as “labor disputes” under the Norris-LaGuardia Act, since it concerns “terms and conditions of employment”. 29 U.S.C. § 113(c). We next consider whether this labor dispute falls into one of the established decisional exceptions to the act. 2. “Labor dispute”: the decisional exceptions. As we have noted above, the Supreme Court has recognized two narrow decisional exceptions to the jurisdiction-stripping provisions of the Norris-LaGuar-dia Act. First, the federal courts have jurisdiction to issue injunctions in “labor disputes” when necessary to accommodate Norris-LaGuardia’s “strong policy favoring arbitration”. Jacksonville Bulk Terminals, 457 U.S. at 717 n. 17, 102 S.Ct. at 2682 n. 17; Boys Markets, 398 U.S. at 252-53, 90 S.Ct. at 1593. Second, the federal courts have such equity jurisdiction when necessary to reconcile Norris-LaGuardia with the mandates of a specific federal statute. Jacksonville Bulk Terminals, 457 U.S. at 717 n. 17, 102 S.Ct. at 2682 n. 17; National Ass’n of Letter Carriers v. Sombrotto, 449 F.2d 915, 919 (2d Cir.1971) (Friendly, J.). As an initial matter, it is noteworthy that Local 1814 commenced this case seeking a “reverse Boys Markets injunction”— i.e., an injunction designed to further the Norris-LaGuardia Act’s strong policies favoring arbitration, see, e.g., Niagara Hooker Employees Union v." }, { "docid": "9448675", "title": "", "text": "Section 1(b) of the National Master Freight Agreement provides in part: (b) Any matter which has been referred pursuant to Section 1(a) above, or any question concerning the interpretation of the provisions contained in the Master Agreement, shall be submitted to a permanent National Grievance Committee which shall be composed of an equal number of Employer and Union representatives. The National Grievance Committee shall meet quarterly, for the disposition of grievances referred to it, or may meet at more frequent intervals, upon call of the Chairman of either the Employer or Union representatives on the National Grievance Committee.... . Section 4 of the Norris LaGuardia Act provides in part; No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in- any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute ... from doing, whether singly or in concert, any of the following acts: (a) ceasing or refusing to perform any work or to remain in any relation of employment. 29 U.S.C. § 104. The Supreme Court has given the anti-injunction provisions of the Act a broad interpretation “recognizing exceptions only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy.” Jacksonville Bulk Terminals, Inc. v. International Longshoreman’s Association, - U.S. -, 102 S.Ct. 2673, 2678, 73 L.Ed.2d 327 (1982). See, e.g., Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). . The strong federal policy promoting arbitration was enunciated by the Supreme Court in the Steelworkers Trilogy. The Court established the now well-known presumption of arbitrability. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . In Boys Markets, the Supreme Court re-examined Sinclair Refining" }, { "docid": "14206649", "title": "", "text": "708, 102 S.Ct. 2672, 2678, 73 L.Ed.2d 327 (1982). See also Jou-Jou Designs, Inc. v. International Ladies Garment Workers Union, 643 F.2d 905, 911 (2d Cir.1981). Despite these general principles of broad application, the Supreme Court has recognized that a district court does have jurisdiction to grant injunctive relief under at least two decisional exceptions to the act: (1) when the Norris-La-Guardia Act must be reconciled with the mandates of a specific federal statute, Boys Markets, 398 U.S. at 251, 90 S.Ct. at 1592; Jacksonville Bulk Terminals, 457 U.S. at 717 n. 17, 102 S.Ct. at 2682 n. 17, and (2) when injunctive relief is necessary to accommodate Norris-LaGuardia’s “strong policy favoring arbitration.” Id. See Boys Markets, 398 U.S. at 252-53, 90 S.Ct. at 1593. Cf. Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 412-23, 96 S.Ct. 3141, 3149-55, 49 L.Ed.2d 1022 (1976) (although the issue of whether a strike violated “no-strike clause” in collective bargaining agreement was ar-bitrable, an injunction of the strike itself not allowed by Norris-LaGuardia). Local 1814 argues that since this case involves a “labor dispute” as defined in 29 U.S.C. § 113(c), and does not fall within any of the established exceptions to Norris-LaGuardia, Judge Sand acted in excess of his jurisdiction. In rejoinder, both NYSA and the government argue that there is no “labor dispute” here for two reasons. First, the “dispute” will not ripen into an arbitrable “dispute” until Judge Sand signs the consent decree. Second, any “dispute” there might be is not a “labor dispute”, but rather a “RICO dispute”. Both NYSA and the government additionally argue that RICO serves an important federal policy, to which the Norris-LaGuar-dia Act and its underlying policies should yield. We address each of these contentions below. B. Is the dispute arbitrable? A threshold issue is whether the dispute between Local 1814 and NYSA is arbitra-ble; if it is not, our inquiry ends, because any injunction that might issue would enjoin an arbitration which need not occur. See Boys Markets, 398 U.S. at 247-49, 90 S.Ct. at 1590-91. The question of arbitrability “is undeniably" }, { "docid": "22236769", "title": "", "text": "a fact that the union’s refusal to fill container gang orders is a breach of “a provision” in the local agreement, though which provision is not specified. It finds that “the dispute causing the breach” is subject to the agreement’s arbitration procedures, but it does not specify what the dispute is. The injunction indefinitely restrains the union defendants from “any work stoppage,” and it is not limited to work stoppages regarding arbitrable disputes. Finally, the injunction commands all of the union defendants, not just those party to the local agreement, to submit to arbitration under the terms of the local agreement “the dispute concerning the makeup and size of container gangs.” I. Labor Injunction Principles The Norris-LaGuardia Act, 29 U.S.C. § 104(a), forbids courts to enjoin work stoppages “in any case involving or growing out of any labor dispute.” See Jacksonville Maritime Ass’n v. International Longshoremen’s Ass’n, 571 F.2d 319, 323 (5th Cir.1978). The Labor Management Relations Act, 29 U.S.C. § 185(a), however, permits courts to enjoin breaches of collective bargaining agreements. Id. The Supreme Court has found in the Labor Management Relations Act a narrow exception to the strictures of the Norris-LaGuardia Act: where labor and management have, by collectively bargained agreement, contracted to resolve certain disputes by arbitration or other informal dispute resolution mechanism, a union may be enjoined from stopping work until the dispute giving rise to the stoppage has been arbitrated or otherwise resolved in accordance with the parties’ agreement. Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). In Boys Markets, the Supreme Court described its holding as a “narrow one” not intended to “undermine the vitality of the Norris-LaGuardia Act.” Id. at 253, 90 S.Ct. at 1594. The Supreme Court twice has emphasized the narrow contours of the Boys Markets exception to Norris-LaGuardia’s general anti-injunction rule. Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982); Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976). In Jacksonville Bulk Terminals" }, { "docid": "7876965", "title": "", "text": "Markets injunction, the employer has the burden of showing that it is entitled to such an injunction. In re Crowe & Assocs., Inc., 713 F.2d at 215; Plain Dealer Publ’g Co. v. Cleveland Typographical. Union No. 53, 520 F.2d 1220, 1227-28 (6th Cir.1975); Parade Publications, Inc. v. Philadelphia Mailers Union No. 14, 459 F.2d 369, 373 (3d Cir.1972). This court has articulated the analysis to be followed when determining whether a party is entitled to an injunction against a labor strike or work stoppage within the meaning of Boys Markets: First, the controversy must involve or grow out of a labor dispute within the meaning of Section 4 of the [Norris-LaGuardia] Act. Second, a full evidentia-ry hearing must be held. Third, the court must find that the dispute underlying the controversy is subject to binding arbitration under the terms of the collective bargaining agreement. Finally, the traditional equitable bases for injunctive relief must be met. A court has jurisdiction to issue an injunction only where all four of the above steps have been completed and satisfied. International Union United Auto. Workers v. Lester Eng’g Co., 718 F.2d 818, 822 (6th Cir.1983). The parties agree that only the third factor is of relevance in this appeal. Although the parties creatively articulate several issues for us to consider, the essence of their legal dispute can be distilled to one simple question: was the district court correct in denying Allied’s request for an injunction? We agree that the district court did not abuse its discretion below. B. Allied first argues that the district court should have issued the injunction because of a strong congressional policy favoring arbitration of labor disputes, and because Article 7, Section 7(a) of the National Agreement mandates that disputes over conflicting provisions are themselves to be resolved through arbitration. Since Boys Markets, the Supreme Court has emphasized that the anti-injunction provisions of the Norris-LaGuardia Act are to be given a “broad interpretation” and that the Boys Markets exception is to be recognized “only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional" }, { "docid": "21560100", "title": "", "text": "agreement to the “arbitration procedure of that agreement” and, (2) in the event of a dispute as to whether further disputes were within the scope of this injunction, to “seek appropriate declaratory relief as to the scope of this Order.” The injunction enjoined them from (1) “engaging in any work stoppages over any differences or local trouble, concerning either (a) the discipline of employees for excessive absenteeism and/or for participation in illegal work stoppages, and/or (b) any other local issues currently in dispute ..., which the parties are contractually obligated to arbitrate,” (2) “[communicating ... in any manner to express or infer that a work stoppage against or involving [Westmore-land] is in progress,” and (3) “[i]nducing, instructing, persuading or encouraging [Westmoreland’s] employees ... to engage in a work stoppage.” In the event of future work stoppages, the injunction ordered District 28, the local unions, and their respective officers to (1) “[p]roceed immediately to the areas where the work stoppages are taking place and instruct those engaging in the work stoppages ... to cease and desist from such violations of this Preliminary Injunction,” (2) “[c]onduct meetings to inform their members that such work stoppages violate this Preliminary Injunction,” and (3) place “advertisements on area radio stations instructing ... Union members to return to work.” This appeal followed. II. Section 4 of the Norris-LaGuardia Act sharply curtailed the authority of courts to issue restraining orders or injunctions against unions or their members for participation in a strike arising out of a labor dispute. 29 U.S.C.A. § 104 (West 1973). “Congress adopted this broad prohibition to remedy the growing tendency of federal courts to enjoin strikes by narrowly construing the Clayton Act’s labor exemption from the Sherman Act’s prohibition against conspiracies to restrain trade.” Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 708, 102 S.Ct. 2672, 2678, 73 L.Ed.2d 327 (1982) (citations omitted). The Supreme Court has consistently interpreted the anti-injunction provisions of the Norris-LaGuar-dia Act broadly and has recognized exceptions only to accommodate paramount federal policies. Id.; see, e.g., Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398" }, { "docid": "19905835", "title": "", "text": "at the plant. At least one other court, moreover, has found the Norris-LaGuardia Act does not bar an internal union dispute over work assignments. See Drywall Tapers & Pointers of Greater New York, Local 1974 v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n, 537 F.2d 669, 674 (2d Cir.1976) (dispute between painters’ union and plasters’ union over work assignment agreement was not covered under the Norris-LaGuardia Act). Thus, the Norris-LaGuardia Act does not bar this court’s jurisdiction. II. Standing Defendants also argue plaintiffs have suffered no injury in fact and therefore lack standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). To demonstrate an injury in fact, a plaintiff must show the injury is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 180, 120 S.Ct. 693. Plaintiffs allege that after the implementation of the Lines of Demarcation, Local 12 resolved several job assignment grievances adversely against machine repairmen that otherwise would have been resolved in their favor. As a result, they allege they lost work and opportunity for overtime. Additionally, plaintiffs allege the imminent loss of twelve job opportunities in the Nitro Body Shop because of the new job assignments. Thus, plaintiffs have alleged an injury that is actual, concrete, and particularized. Therefore, plaintiffs have standing to pursue a preliminary injunction. III. Preliminary Injunction Plaintiffs ask the court to enjoin Local 12 from implementing the Lines of Demarcation. A court balances four factors when determining whether to issue a preliminary injunction: 1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; 2) whether there is a threat of irreparable harm to the plaintiff; 3) whether issuance of the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting in-junctive relief. Chabad v. City of Cincinnati 363 F.3d 427, 432 (6th Cir.2004); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir.2000). Plaintiffs allege Local 12 acted arbitrarily in developing the Lines of Demarcation thus violating the" }, { "docid": "14453739", "title": "", "text": "Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982). The Supreme Court’s observation, however, reads in full, as follows: “This Court has consistently given the anti-injunction provisions of the Norris-LaGuardia Act a broad interpretation, recognizing exceptions only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy.” Jacksonville Bulk Terminals, 457 U.S. at 708, 102 S.Ct. at 2678 (emphasis added). Subsection 502(a)(3) of ERISA constitutes “specific federal legislation” that requires recognition of a limited accommodation with the strictures of the Norris-LaGuardia Act. In recognizing what has become known as the “Boys Markets exception,” the Supreme Court was not deterred by the failure of Congress to declare in the legislative history or elsewhere that section 301 of the Labor Management Relations Act (hereinafter LMRA), 29 U.S.C. § 185, was intended to provide an exception to the anti-injunction provisions of the Norris-LaGuardia Act. Moreover, as Justice Black correctly noted in dissent, subsection 301(a) “says nothing at all about granting injunctions.” Boys Markets, 398 U.S. at 256, 90 S.Ct. at 1595 (Black, J., dissenting). In subsection 502(a)(3) of ERISA, on the other hand, Congress expressly empowered federal courts to issue injunctions and other appropriate relief in cases brought under that provision, thereby unambiguously expressing Congress’ intent to provide for a narrow accommodation with the Norris-LaGuardia Act’s anti-injunction provisions. In Boys Markets, without the aid of such an unambiguous expression of Congressional intent, the Supreme Court looked to the important federal policy favoring arbitration of labor disputes underlying the statute in question, section 301 of the LMRA, as well as the need to accommodate that policy with the one underlying the Norris-LaGuardia Act. The Supreme Court reasoned, as follows: Clearly employers will be wary of assuming obligations to arbitrate specifically enforceable against them when no similarly efficacious remedy is available to enforce the concomitant undertaking of the union to refrain from striking. On the other hand, the central purpose of the Norris-LaGuardia Act to foster the growth and viability of labor organiza tions is hardly retarded — if anything, this goal" }, { "docid": "9448676", "title": "", "text": "in any relation of employment. 29 U.S.C. § 104. The Supreme Court has given the anti-injunction provisions of the Act a broad interpretation “recognizing exceptions only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy.” Jacksonville Bulk Terminals, Inc. v. International Longshoreman’s Association, - U.S. -, 102 S.Ct. 2673, 2678, 73 L.Ed.2d 327 (1982). See, e.g., Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). . The strong federal policy promoting arbitration was enunciated by the Supreme Court in the Steelworkers Trilogy. The Court established the now well-known presumption of arbitrability. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . In Boys Markets, the Supreme Court re-examined Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962) which held that the Norris-LaGuardia Act precludes a federal district court from enjoining a strike in breach of a collective bargaining agreement. Under Sinclair, the prohibition existed even where the agreement contained provisions for binding arbitration of the grievance concerning which the strike was called. In order to accommodate the anti-injunction provisions of Norris-LaGuardia to the subsequently enacted provisions of § 301(a) of the Labor Management Relations Act and the strong federal policy favoring arbitration, the Court overruled Sinclair. The Court found it essential to recognize an exception to the anti-injunction provisions for cases in which the employer sought to enforce the Union’s contractual obligation to arbitrate grievances rather than to strike over them. Jacksonville Bulk Terminals v. International Longshoremen’s Association, 102 S.Ct. at 2679 (1982). . While recognizing the concept of coterminous interpretation, the Third Circuit crystallized the significance of Buffalo Forge as follows: The relevance of Buffalo-Forge is the recognition that, absent some evidence to the contrary, the quid pro" }, { "docid": "7876966", "title": "", "text": "satisfied. International Union United Auto. Workers v. Lester Eng’g Co., 718 F.2d 818, 822 (6th Cir.1983). The parties agree that only the third factor is of relevance in this appeal. Although the parties creatively articulate several issues for us to consider, the essence of their legal dispute can be distilled to one simple question: was the district court correct in denying Allied’s request for an injunction? We agree that the district court did not abuse its discretion below. B. Allied first argues that the district court should have issued the injunction because of a strong congressional policy favoring arbitration of labor disputes, and because Article 7, Section 7(a) of the National Agreement mandates that disputes over conflicting provisions are themselves to be resolved through arbitration. Since Boys Markets, the Supreme Court has emphasized that the anti-injunction provisions of the Norris-LaGuardia Act are to be given a “broad interpretation” and that the Boys Markets exception is to be recognized “only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy.” Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 708, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982). Allied is correct that congressional policy has long favored the arbitration of labor disputes. See generally Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960). However, it must be remembered that a congressional policy favoring arbitration “does not reflect a congressional policy favoring the issuance of anti-strike injunctions pending arbitration.” Waller Bros. Stone Co. v. United Steelworkers, 620 F.2d 132, 135 (6th Cir.1980). As a corollary point, it is obvious that no congressional policy is furthered by forcing a party to a collective bargaining agreement to arbitrate issues for which it explicitly retained the right to" }, { "docid": "21560101", "title": "", "text": "from such violations of this Preliminary Injunction,” (2) “[c]onduct meetings to inform their members that such work stoppages violate this Preliminary Injunction,” and (3) place “advertisements on area radio stations instructing ... Union members to return to work.” This appeal followed. II. Section 4 of the Norris-LaGuardia Act sharply curtailed the authority of courts to issue restraining orders or injunctions against unions or their members for participation in a strike arising out of a labor dispute. 29 U.S.C.A. § 104 (West 1973). “Congress adopted this broad prohibition to remedy the growing tendency of federal courts to enjoin strikes by narrowly construing the Clayton Act’s labor exemption from the Sherman Act’s prohibition against conspiracies to restrain trade.” Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 708, 102 S.Ct. 2672, 2678, 73 L.Ed.2d 327 (1982) (citations omitted). The Supreme Court has consistently interpreted the anti-injunction provisions of the Norris-LaGuar-dia Act broadly and has recognized exceptions only to accommodate paramount federal policies. Id.; see, e.g., Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 249-53, 90 S.Ct. 1583, 1591-94, 26 L.Ed.2d 199 (1970). The scope of the Boys Markets exception to the Norris-LaGuardia Act, as refined in Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), and Jacksonville Bulk Terminals, is the issue presented here. Under appropriate circumstances, the Boys Markets exception allows federal courts to issue injunctions to enforce mandatory arbitration procedures of collective bargaining agreements. The Supreme Court recognized this exception to the anti-injunction provisions of the Norris-LaGuardia Act after certain provisions of section 301(a) of the Labor Management Relations Act were enacted and because of the strong federal policy favoring the use of arbitration to resolve labor disputes. See United Steelworkers v. American Mfg., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In Boys Markets, the union demanded that" } ]

[ { "docid": "22536147", "title": "", "text": "to controversies “between a State and Citizens of another State.” U. S. Const., Art. III, §2, cl. 1. The “shock of surprise” created by this decision, Principality of Monaco v. Mississippi, 292 U. S. 313, 325 (1934), prompted the immediate adoption of the Eleventh Amendment, which provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Though its precise terms bar only federal jurisdiction over suits brought against one State by citizens of another State or foreign state, we have long recognized that the Eleventh Amendment accomplished much more: It repudiated the central premise of Chisholm that the jurisdictional heads of Article III superseded the sovereign immunity that the States possessed before entering the Union. This has been our understanding of the Amendment since the landmark case of Hans v. Louisiana, 134 U. S. 1 (1890). See also Ex parte New York, 256 U. S. 490, 497-498 (1921); Principality of Monaco, supra, at 320-328, Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 97-98 (1984); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54, 66-68 (1996). While this immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment — an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U. S. 436, 447-448 (1883). This ease turns on whether either of these two circumstances is present. II Section 43(a) of the Lanham Act, 15 U. S. C. § 1125(a), enacted in 1946, created a private right of action against “[a]ny person” who uses false descriptions or makes false representations in commerce. The TRCA amends §" } ]

[ { "docid": "17480395", "title": "", "text": "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” the provisions of the Fourteenth Amendment. Id. § 5. In Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court established a two-part test to determine whether Congress properly abrogated states’ Eleventh Amendment immunity through the exercise of its Section 5 enforcement power: first, a court must determine whether Congress “has unequivocally expressed its intent to abrogate the immunity”; and second, a court must determine whether Congress acted “pursuant to a valid exercise of power.” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114 (citations, quotations, and brackets omitted). The parties agree that Congress expressed its unequivocal intent to abrogate states’ immunity with respect to suits under the ADA. See 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.”)- Thus, we need only determine whether Congress, in enacting the ADA, properly abrogated states’ immunity pursuant to a valid exercise of its Section 5 enforcement powers. In City of Boerne v. Flores,, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court discussed the limitation of congressional enforcement power under the Fourteenth Amendment, emphasizing that this power is “remedial” in nature. See id. at 519, 117 S.Ct. 2157 (“Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.”). The Court went on to hold that there must be “a congruence and proportionality between the injury to be prevented or remedied" }, { "docid": "12534387", "title": "", "text": "entertain a suit brought by an individual against a nonconsenting State. See Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Congress may, however, abrogate the States’ Eleventh Amendment sovereign immunity, so long as: (1) it unequivocally expresses its intent to abrogate the immunity; and (2) it acts “pursuant to a constitutional provision granting Congress the power to abrogate.” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. We agree with the parties and the lower court that Congress has clearly expressed its intent to abrogate the States’ Eleventh Amendment immunity to actions under the FMLA, thus satisfying the first of these two requirements. See 29 U.S.C. §§ 2611(4)(A)(iii), 203(x). The second requirement demands that we determine whether the FMLA is appropriate legislation under § 5 of the Fourteenth Amendment, since this provision of the Constitution is the only currently recognized authority for Congress to abrogate the States’ sovereign immunity. See Seminole Tribe, 517 U.S. at 59, 72-73, 116 S.Ct. 1114. The Fourteenth Amendment provides, in relevant part: Section 1.... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. U.S. Const, amend. XIV. Congress’s enforcement authority under § 5 of the Fourteenth Amendment is remedial and preventative in nature. See City of Boerne v. Flores, 521 U.S. 507, 524, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Section 5 grants Congress “the power to make the substantive constitutional prohibitions against the States effective” but does not award Congress the authority to substantively change the nature of constitutional rights. Id. at 519-522, 117 S.Ct. 2157. Accordingly, legislation is plainly adapted to enforcing the Equal Protection Clause when there is “congruence and proportionality" }, { "docid": "15737123", "title": "", "text": "“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. A state’s immuni ty, however, is not absolute; “Congress may abrogate the State’s Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Garrett, 531 U.S. at 363, 121 S.Ct. 955 (internal quotation marks and citations omitted). The Supreme Court has recognized that “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.” Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (internal citations omitted). Congress, therefore, “may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power.” Garrett, 531 U.S. at 364, 121 S.Ct. 955. We must ascertain, therefore, what constitutes a valid exercise of § 5 power to determine if Congress’ extension of Title VII to the States falls within that grant of authority. The Fourteenth Amendment states, in relevant part: Section 1. ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law. Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. U.S. Const, amend. XIV. Section 5 of the Fourteenth Amendment gives to Congress the right to “enforce the substantive guarantees contained in § 1 by enacting ‘appropriate legislation.’” Garnett, 531 U.S. at 365, 121 S.Ct. 955. This Congressional determination of necessity and propriety is “entitled to much deference.” City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624" }, { "docid": "23421624", "title": "", "text": "the district court’s judgment for KSU on that claim. B. Conversely, we find that Kimel does not alter this Circuit’s conclusion that the EPA constituted a proper abrogation of Eleventh Amendment immunity. See Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833 (6th Cir.1997). 1. The Eleventh Amendment provides that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI. Courts have long read this language to mean “that an un-eonsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Nevertheless, we have recognized that there is no Eleventh Amendment bar in three instances: (1) when the state has consented to suit; (2) when the Ex Parte Young exception applies; and (3) when Congress has properly abrogated states’ immunity. See Nelson v. Miller, 170 F.3d 641, 646 (6th Cir.1999). Whether the Eleventh Amendment bars suits against states under the EPA involves an analysis of this third exception. After Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), Congress can abrogate Eleventh Amendment immunity only under its Section 5 power to enforce the Fourteenth Amendment. Seminole Tribe erected a two-pronged test to determine the validity of Section 5 abrogation. First, we must determine whether Congress “unequivocally expresse[d] its intent to abrogate the immunity.” Id. at 55, 116 S.Ct. 1114. Second, we must determine whether Congress acted pursuant to a valid exercise of Section 5 power. See id. ' As the Court explained in Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), Section 5 “is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Katzenbach went on" }, { "docid": "6945251", "title": "", "text": "Congress also did not act pursuant to a valid grant of authority. Intervenor United States and appellees respond that these issues have already been decided by the Supreme Court and the Eighth Circuit, and that Congress validly abrogated the state’s Eleventh Amendment immunity. The Eleventh Amendment provides that “[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State....” The University of Arkansas has been recognized to have Eleventh Amendment immunity. See Assaad-Faltas v. University of Ark. For Med. Sciences, 708 F.Supp. 1026 (E.D.Ark.1989), affirmed, 902 F.2d 1572 (8th Cir.1990). Congress may abrogate such immunity, however, if it “unequivocally expressed] its intent to abrogate,” by “a clear legislative statement,” and it acted “pursuant to a valid exercise of power.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citation omitted). A. The Supreme Court addressed Title VII abrogation in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). In Fitzpatrick the Court stated that in 1972 “Congress, acting under § 5 of the Fourteenth Amendment, authorized federal courts to award money damages ... against a state government....” Id at 447, 96 S.Ct. 2666. The Court distinguished prior cases where Congress had not exhibited an intent to abrogate the Eleventh Amendment or to allow a suit against a state, and it held that in Title VII “ ‘congressional authorization’ to sue the State as employer is clearly present.” Id. at 452, 96 S.Ct. 2666 (internal citation omitted). Subsequent to Fitzpatrick, this court has consistently held that the 1972 and 1991 Acts abrogated the Eleventh Amendment. See Winbush v. Iowa, 66 F.3d 1471, 1483 (8th Cir.1995) (1991 Act); Greenwood v. Ross, 778 F.2d 448, 452-453 (8th Cir.1985) (1972 Act). Other circuits have reached the same conclusion based on Fitzpatrick. See Johnson v. Univ. of Cincinnati 215 F.3d 561, 571 (6th Cir.2000); In re: Employment Discrimination Litig. Against the State of Ala., 198 F.3d 1305, 1316-17 (11th Cir.1999);" }, { "docid": "21085878", "title": "", "text": "Congress has acted within the proper exercise of its power. Although Congress has the authority to enact legislation under its Article I powers, including its power under the Commerce Clause, such authority does not permit Congress to nullify the States’ Eleventh Amendment immunity. See Seminole Tribe, 517 U.S. at 47, 116 S.Ct. 1114; see also Kimel, — U.S. at-, 120 S.Ct. at 643; College Sav. Bank, 527 U.S. at 672, 119 S.Ct. 2219; Alden v. Maine, 527 U.S. 706, 713-14, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). As such, if the ADA were based solely on Congress’ Article I powers, Lavia would not be able to sue the Commonwealth of Pennsylvania in federal court. Congress does, however, have the authority to abrogate the States’ Eleventh Amendment immunity under its § 5 power to enforce the Fourteenth Amendment. See U.S. Const. amend. XIV, § 5; Kimel, — U.S. at-, 120 S.Ct. at 644; Seminole Tribe, 517 U.S. at 58-59, 116 S.Ct. 1114 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)); College Sav. Bank, 527 U.S. at 672, 119 S.Ct. 2219; Florida Prepaid Post- secondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999); Alden, 527 U.S. at 713-14, 119 S.Ct. 2240. In relevant part, the Fourteenth Amendment provides: Section 1 .... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. To be a valid exercise of § 5 power, Congress must “identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” Florida Prepaid, 527 U.S. at 639, 119 S.Ct. 2199. “Congress’ power under § 5 extends only to enforcing] the provisions of the Fourteenth Amendment.” City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). This power extends" }, { "docid": "10547857", "title": "", "text": "the 1995 hiring and evidence of retaliation after Scott filed her second amended complaint. Scott also challenges the court’s refusal to allow evidence about her claim of age discrimination in the 1995 hiring. Both parties also appeal various issues related to damages. Because the Eleventh Amendment, when applicable, imposes a limitation on our jurisdiction, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996), we turn first to that issue. II The district court held, without explanation, that Congress had abrogated the states’ Eleventh Amendment immunity from suit under the ADEA and that Scott’s ADEA suit was therefore not barred by the Eleventh Amendment. The University disagrees, ar guing that it is immune from suit under the ADEA. “The Eleventh Amendment provides immunity to states from suits in federal court by private persons.” Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.1998), petition for cert. filed, 66 U.S.L.W. 3783 (U.S. May 28,1998) (No. 97-1941). That immunity is, however, not without limit: “A state may consent to be sued in federal court, and in certain circumstances, Congress may abrogate the states’ sovereign immunity.” Goshtasby v. Board of Trustees of the Univ. of Ill., 141 F.3d 761, 765 (7th Cir.1998) (citing Seminole Tribe, 517 U.S. at 63-66, 71 n. 15, 116 S.Ct. at 1128, 1131 n. 15; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976)). In Seminole Tribe, the Supreme Court outlined a two-part inquiry for determining whether Congress has abrogated the states’ sovereign immunity from suit under the Eleventh Amendment in enacting particular legislation: “first, whether Congress ‘has unequivocally expressed its intent to abrogate the immunity,’ and second, whether Congress has acted ‘pursuant to a valid exercise of constitutional power.’ ” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (internal citation omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)). The University contends that in extending the ADEA to the states, Congress satisfied neither of these prongs. A Congress’s intent to abrogate state sovereign immunity “must" }, { "docid": "17059060", "title": "", "text": "nor deny to any person within its jurisdiction the equal protection of the laws.’” Id. (quoting U.S. Const. amend. XIV, § 1). Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” the provisions of the Fourteenth Amendment. Id. (quoting U.S. Const. amend. XIV, § 5). The Martin court then analyzed whether Congress properly abrogated the states’ Eleventh Amendment immunity through the exercise' of its Section 5 enforcement power. The court employed the two-part test established by the United States Supreme Court in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). According to the Seminole Tribe test,' a court must first determine whether Congress “‘has unequivocally expressed' its intent to abrogate the immunity’; and second, a court must determine whether Congress acted ‘pursuant to a valid exercise of power.’ ” Martin, 190 F.3d at 1126 (quoting Seminole, 517 U.S. at 55, 116 S.Ct. 1114). In Martin, the parties agreed that Congress expressed its unequivocal intent to abrogate states’ immunity with respect to suits under the ADA. See 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.”) Thus, the Martin court determined only whether Congress, in enacting the ADA, properly abrogated states’ immunity pur suant to a valid exercise of its Section 5 enforcement power. Id. at 1126-27. In analyzing the issue, the Martin court explained that in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), “the Supreme Court discussed the limitation of congressional enforcement power under the Fourteenth Amendment, emphasizing that this power is ‘remedial’ in nature.” Id. at 1127 (citing City of Boerne, 521 U.S. at 519, 117 S.Ct. 2157) (“Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.”). The Boerne Court held that there must be “ ‘a" }, { "docid": "16106664", "title": "", "text": "Const, art. I, § 14. Absent waiver, AL-DOT is immune from suit unless Congress has abrogated its sovereign immunity. Thus, the court must ask whether Congress: (1) has “unequivocally expresse[d] its intent to abrogate the [state’s] immunity”; and (2) has “acted pursuant to a valid exercise of power.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citations and quotations omitted). The answer to both questions is “no.” First, RCRA does not unequivocally express a congressional intent to abrogate ALDOT’s Eleventh Amendment immunity. In fact, by its very terms, the statute operates within the Eleventh Amendment. It provides that any person may commence a civil action on his own behalf — (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) ... or (B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution. 42 U.S.C. § 6972(a) (emphasis supplied). Second, Congress would not have acted pursuant to a valid exercise of power even if it had clearly intended to abrogate Eleventh Amendment immunity. Congress enacted RCRA pursuant to its Article I Commerce Clause powers. See Rowlands v. Pointe Mouillee Shooting Club, 959 F.Supp. 422, 426 (E.D.Mieh. 1997); United States v. Rogers, 685 F.Supp. 201, 202 (D.Minn.1987). Prior to Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114, the Supreme Court had held that Congress could abrogate a state’s sovereign immunity by enacting legislation under the Commerce Clause, see Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (plurality opinion), or the Fourteenth Amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). However, Union Gas has been overruled, see Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114, and it is now well settled that Congress’ Article I legislative powers cannot trump a state’s Eleventh Amendment immunity. See Kimel v. Florida Bd. of Regents, 528 U.S." }, { "docid": "23128133", "title": "", "text": "Cir.1993). In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55-58, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court set forth a two-part test for determining whether an act of Congress abrogates. states’ Eleventh Amendment immunity: (i) Congress must unequivocally express its intent to abrogate the immunity; and (ii) Congress must act pursuant to a valid exercise of power. Accord Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, - U.S. -, 119 S.Ct. 2199, 2205, - L.Ed.2d - (1999). DOCS does not dispute that the ADA satisfies the first .element under Seminole Tribe. Indeed, in light of 42 U.S.C. § 12202, which provides that a “State shall not be immune under the [Eleventh [Ajmendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of [the ADA],” any such contention would be difficult to maintain. Rather, DOCS focuses on the second Seminole Tribe element, arguing that Congress exceeded its powers under § 5 of the Fourteenth Amendment in enacting the ADA. Recent Supreme Court precedent has clarified that Congress may abrogate states’ Eleventh Amendment immunity pursuant to § 5 of the Fourteenth Amendment but not pursuant to any Article I power such as the Commerce Clause. See Florida Prepaid Postsecondary Educ. Expense Bd., 119 S.Ct. at 2205; Close v. State of New York, 125 F.3d 31, 38 (2d Cir.1997) (“After Seminole, the only source of congressional abrogation stems from the Fourteenth Amendment.”). Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” its substantive provisions, including the Equal Protection Clause. A statute is “appropriate legislation” to enforce the Equal Protection clause if “it is plainly adapted to that end and [if] it is not prohibited by but is consistent with the letter and spirit of the [Constitution.” Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (quotation omitted). In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Court explained that the authority to enforce the Fourteenth" }, { "docid": "11228612", "title": "", "text": "Caring, Inc., 991 F.Supp. 701, 706-07 (D.N.J. 1998). III. SOVEREIGN IMMUNITY The Eleventh Amendment to the United States Constitution provides: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. Since Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Supreme Court has interpreted the Eleventh Amendment to bar claims in federal court against a state by its own citizens, thus applying the bar in both diversity and federal-question cases. See, e.g., Idaho v. Coeur d’Alene Tribe of Idaho, — U.S. -, -, 117 S.Ct. 2028, 2033, 138 L.Ed.2d 438 (1997). Subject to the conditions described in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), however, Congress may abrogate state sovereign immunity and thereby subject states to suit in federal court. To determine whether Congress has properly abrogated the State Defendants’ sovereign immunity, I must answer two questions: (1) has Congress “unequivocally expresse[d] its intent to abrogate the immunity;” and (2) has Congress done so “pursuant to a valid exercise of power.” Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). I will address these questions in turn. See Seminole Tribe, 517 U.S. at 71 n. 15 (“both the doctrine requiring avoidance of constitutional questions, and principles of federalism, require us always to apply the clear statement rule before we consider the constitutional question whether Congress has the power to abrogate”). A. Congressional Intent In 1986, Congress passed the Rehabilitation Act Amendments of 1986, Pub.L. 99-506,100 Stat. 1845, which provide in part: A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act" }, { "docid": "6720851", "title": "", "text": "of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. Under this amendment, a State “is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citation and internal quotations omitted). Further, state agencies are entitled to assert the same Eleventh Amendment immunity as the States themselves. Id. Here, Plaintiff has brought a suit in federal court against a state agency, and the requirements for application of Eleventh Amendment immunity are therefore present. However, there are two ways that a state may be divested of its Eleventh Amendment immunity: (1) “a state may waive its immunity and agree to be sued in federal court,” or (2) “Congress may abrogate a state’s sovereign immunity through a statutory enactment .... ” Close v. State of N.Y., 125 F.3d 31, 36 (2d Cir.1997). It is conceded by both parties that neither of these exceptions applies to the HRL claim. See Mete v. New York State Office of Mental Retardation and Developmental Disabilities, 984 F.Supp. 125, 134 (N.D.N.Y.1997) (McCurn, J.) (holding HRL claim against New York State was subject to Eleventh Amendment immunity). Plaintiffs HRL claim is therefore dismissed. The Court must determine whether an exception applies to the ADA claim. In particular, because there is no assertion that New York has waived immunity, the question presented is whether Congress has abrogated state immunity to claims brought pursuant to the ADA’s employment anti-discrimination provision. [4 — 6] Congress may not abrogate a state’s Eleventh Amendment immunity unless it (1) “ ‘unequivocally express[s] its intent to abrogate the immunity”’; and (2) acts “ ‘pursuant to a valid exercise of power.’ ” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252(1996) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88" }, { "docid": "6926264", "title": "", "text": "unequivocally expresses Congress’ intent to abrogate. See Brown, 166 F.3d at 705. C. We next must decide whether Congress properly exercised its power to abrogate.. This inquiry is begun by ascertaining the basis for Congress’ abrogation. See Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. In the ADA, Congress asserted its intent “to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment ..., in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C.A. § 12101(b)(4) (West 1995). Section 5 of the Fourteenth Amendment vests Congress with the authority to abrogate immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (“[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.” (citation omitted)). Section 5 grants Congress the “power to enforce, by appropriate legisla tion, the provisions of’ the Fourteenth Amendment, including the following portion of § 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const, amend. XIV, §§ 1, 5. In exercising its enforcement power, “Congress is not limited to mere legislative repetition of [the Supreme] Court’s constitutional jurisprudence.” Garrett, 531 U.S. at 365, 121 S.Ct. 955. Rather, “§ 5 is a positive grant of legislative power to Congress.” City of Boerne v. Flores, 521 U.S. 507, 517, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (internal quotation marks omitted);, see id. at 536, 117 S.Ct. 2157 (“It is for Congress in the first instance to ‘determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its conclusions are entitled to much deference.” (alteration in original) (quoting Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966))). Therefore, “legislation which" }, { "docid": "21328451", "title": "", "text": "Id. at 458-59. Finding that Congress therefore failed to properly abrogate Eleventh Amendment immunity, the district court dismissed the suit for lack of subject matter jurisdiction. The placard holders appeal, and the United States has intervened. II. A. The Eleventh Amendment provides that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Although the text of the Amendment seems to restrict only the scope of diversity jurisdiction in federal court, the Amendment has long been interpreted to contain much broader limitations. In Hans v. Louisiana, the Supreme Court recognized that the “suability of a State without its consent” was “not contemplated by the Constitution when establishing the judicial power of the United States.” 134 U.S. 1, 15, 16, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Since that time, the Court has reaffirmed this important principle of federalism embodied in the Eleventh Amendment. See Seminole Tribe, 517 U.S. at 54 n. 7, 116 S.Ct. 1114 (listing cases); Booth v. Maryland, 112 F.3d 139, 141-42 (4th Cir.1997) (reviewing the case law). State sovereign immunity includes the proposition that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Supreme Court has held that Congress has a limited power to abrogate immunity. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Congressional abrogation of immunity must meet two requirements: Congress must “unequivocally express[ ] its intent to abrogate the immunity,” and Congress must act “pursuant to a valid exercise of power.” Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); accord Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. To determine whether Congress has acted pursuant to a valid exercise of power, a court must ask, “Was the" }, { "docid": "17480394", "title": "", "text": "Eleventh Amendment immunity in the ADA was a valid exercise of its Section 5 enforcement powers. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. A state’s Eleventh Amendment immunity from suit is not absolute; either a state may waive its sovereign immunity or Congress may abrogate the states’ sovereign immunity in the exercise of its Section 5 power to enforce the Fourteenth Amendment. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., — U.S. -, -, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999). As the State of Kansas did not waive its sovereign immunity by consenting to suit, its motion therefore depends on whether Congress properly abrogated the states’ immunity through the valid exercise of its Section 5 powers. The Fourteenth Amendment provides in part that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” the provisions of the Fourteenth Amendment. Id. § 5. In Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court established a two-part test to determine whether Congress properly abrogated states’ Eleventh Amendment immunity through the exercise of its Section 5 enforcement power: first, a court must determine whether Congress “has unequivocally expressed its intent to abrogate the immunity”; and second, a court must determine whether Congress acted “pursuant to a valid exercise of power.” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114 (citations, quotations, and brackets omitted). The parties agree that Congress expressed its unequivocal" }, { "docid": "2777674", "title": "", "text": "While the Eleventh Amendment appears to restrict only the federal courts’ Article III diversity jurisdiction, the Amendment has long been understood “to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). Under the Eleventh Amendment, each State in our federal system remains a sovereign entity and may not be sued by an individual without its consent, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citing Hans v. Louisiana, 134 U.S. 1, 13, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Although the Eleventh Amendment grants unconsenting States immunity from suit in federal court, that immunity is not absolute. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999); see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (“[T]he Eleventh Amendment, and the principles of state sovereignty which it embodies, ... are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.”). Congress may constitutionally abrogate the States’ Eleventh Amendment immunity if two criteria are satisfied: (1) Congress must unequivocally express its intent to abrogate the States’ sovereign immunity; and (2) in abrogating that immunity, Congress must act pursuant to a valid exercise of power. See Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. Because the defendants no longer contest Congress’ intent to abrogate the States’ Eleventh Amendment immunity in this case, we need only consider the question of whether the abrogations of sovereign immunity contained in the statutes at issue are valid exercises of congressional power under § 5 of the Fourteenth Amendment. In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court explained that “[¡[legislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not" }, { "docid": "21386312", "title": "", "text": "for summary judgment and the jury’s verdict. II. The Eleventh Amendment provides immunity to states from suits in federal court by private persons. The Eleventh Amendment states that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by 'Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. The Supreme Court has broadly construed the Eleventh Amendment’s narrow language, to embrace the larger principle that a state is granted immunity from suits initiated by private entities or persons in federal court, if the state has not consented to such suits. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996) (“[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms.”) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991)). Congress has the authority to abrogate states’ immunity in certain circumstances pursuant to Congress’ powers under Section 5 of the Fourteenth Amendment. Section 5 provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5. Among the provisions is Section 1’s mandate that [n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Id., § 1. Seminole Tribe established a two-pronged test for determining the validity of Congress’ abrogation of state immunity through the exercise of its Section 5 enforcement power. First, a court must determine whether Congress “unequivocally expresse[d] its intent to abrogate the immunity.”’ Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d" }, { "docid": "12534386", "title": "", "text": "§ 2601(b)(5). The FMLA purports “to balance the demands of the workplace with the needs of families ... in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis.... ” Id. § 2601(b)(1), (4). Ill We review de novo the district court’s order granting the defendant’s motion to dismiss on Eleventh Amendment grounds. See Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 836 (6th Cir.1997). A The Eleventh Amendment to the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. Through its provision of sovereign immunity, the Eleventh Amendment denies the federal courts jurisdiction to entertain a suit brought by an individual against a nonconsenting State. See Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Congress may, however, abrogate the States’ Eleventh Amendment sovereign immunity, so long as: (1) it unequivocally expresses its intent to abrogate the immunity; and (2) it acts “pursuant to a constitutional provision granting Congress the power to abrogate.” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. We agree with the parties and the lower court that Congress has clearly expressed its intent to abrogate the States’ Eleventh Amendment immunity to actions under the FMLA, thus satisfying the first of these two requirements. See 29 U.S.C. §§ 2611(4)(A)(iii), 203(x). The second requirement demands that we determine whether the FMLA is appropriate legislation under § 5 of the Fourteenth Amendment, since this provision of the Constitution is the only currently recognized authority for Congress to abrogate the States’ sovereign immunity. See Seminole Tribe, 517 U.S." }, { "docid": "14106776", "title": "", "text": "otherwise be non-final decisions. Cooper v. New York State Office of Mental Health, 162 F.3d 770, 772 (2d Cir.1998); see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). DISCUSSION We review de novo a district court’s legal conclusion regarding its subject matter jurisdiction on a Rule 12(b)(1) motion. See Cooper, 162 F.3d at 773. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Supreme Court has interpreted the Eleventh Amendment to mean that states, as sovereigns, are immune from suit in federal court absent consent or abrogation of that immunity by Congress. See Seminole Tribe v. Florida, 517 U.S. 44, 54-55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In this case, New York has not consented to suit in federal court, so the defendants are subject to suit in federal court only if Congress, in enacting the EPA, effectively abrogated the States’ sovereign immunity. In order to determine whether Congress has abrogated the States’ sovereign immunity, we ask two questions: first, whether Congress has unequivocally expressed] its intent to abrogate the immunity, id. at 55, 116 S.Ct. 1114; and second, whether Congress has acted “pursuant to a constitutional provision granting Congress the power to abrogate,” id. at 59, 116 S.Ct. 1114. The Court has made clear that Congress may abrogate state immunity when it acts pursuant to its enforcement power under § 5 of the Fourteenth Amendment. See id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). The EPA was passed in 1963 as an amendment to the Fair Labor Standards Act of 1938 (FLSA). See Equal Pay Act of 1963, Pub.L. No. 88-38, 77 Stat. 56 (1963) (codified at 29 U.S.C. § 206(d)). As part of the FLSA, the EPA utilizes the FLSA’s" }, { "docid": "23421625", "title": "", "text": "when Congress has properly abrogated states’ immunity. See Nelson v. Miller, 170 F.3d 641, 646 (6th Cir.1999). Whether the Eleventh Amendment bars suits against states under the EPA involves an analysis of this third exception. After Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), Congress can abrogate Eleventh Amendment immunity only under its Section 5 power to enforce the Fourteenth Amendment. Seminole Tribe erected a two-pronged test to determine the validity of Section 5 abrogation. First, we must determine whether Congress “unequivocally expresse[d] its intent to abrogate the immunity.” Id. at 55, 116 S.Ct. 1114. Second, we must determine whether Congress acted pursuant to a valid exercise of Section 5 power. See id. ' As the Court explained in Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), Section 5 “is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Katzenbach went on to define appropriate Section 5 legislation as legislation that: 1) may be regarded as an enactment to enforce the equal protection clause; 2) is plainly adapted to that end; and 3) is not prohibited by but is consistent with the letter and spirit of the Constitution. See id. The Supreme Court further clarified the extent of Congress’s Section 5 power in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), striking down the Religious Freedom Restoration Act (“RFRA”) because it exceeded that power. The Court concluded that Congress has the authority to remedy and prevent constitutional violations “even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy previously reserved to the States.’ ” Id. at 518, 117 S.Ct. 2157 (citation omitted). Nonetheless, Congress can not enforce a constitutional right by changing the substance of that right. “It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” Id. at 519, 117 S.Ct." } ]

[ { "docid": "22128548", "title": "", "text": "operation of section 502 and Rule 3002 is governed by pre-Code practice. As support, the trustee cites a series of cases that, to some, is the “weight of authority.” Specifically, the trustee cites In re Glow, 111 B.R. 209 (Bankr.N.D.Ind.1990) for the proposition that a claim, tardily filed, in a Chapter 13 case, is not allowable. Id. at 217. The Glow court primarily rests on Wilkens v. Simon Bros., Inc. (In re Wilkens), 731 F.2d 462 (7th Cir.1984). Reliance on Wilk-ens, however, is misplaced. The Wilkens court found that Rule 13-302(e)(2) of the Rules of Bankruptcy Procedure under the Bankruptcy Act of 1898 controlled its decision. The Advisory Committee Note to Rule 13-302(e)(2) explains that the language “of subdivision (e) is adopted from § 57(n) of the Act and retains the time limits on the filing of claims established by the statutory provisions.” Section 57(n) of the Act provided that ... “[cjlaims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed ...” 11 U.S.C. § 93(n) (repealed Oct. 1, 1979) (emphasis added). Section 502 of the Code, on the other hand, does not, by its express terms, exclude late claims. Indeed, the drafters, aware of Section 57(n) and Rule 13-302(e)(2) of Bankruptcy Act of 1898, chose not to include late filed claims as grounds for disallowing claims. Pre-Code practice is hardly relevant where, as here, the Code specifically changes the practice. See, e.g., U.S. v. Ron Pair Enter., Inc., 489 U.S. at 241, 109 S.Ct. at 1030. The Glow court also places heavy reliance on In re Chirillo, 84 B.R. 120 (Bankr.N.D.Ill.1988). The Chirillo court held that a creditor’s claim, filed late, in a Chapter 13 case, is not allowed. The Chirillo court found that [e]ase law supports this construction [of the Rules and Code]. Former Bankruptcy Rule 302(e) contained the same type of bar date as present Rule 3002(e); the only difference is that the former rule allowed six months from the first meeting of creditors instead of 90 days. In re Glow, 111 B.R. at" } ]

[ { "docid": "4709654", "title": "", "text": "Rule 3002 impose upon the IRS an obligation to file its proof of claim in a timely manner, and that the rule should be strictly construed as a statute of limitations. The trustee maintains that if priority claims are not subject to bar dates, the administration of a debtor’s estate will be upset because trustees will be unable to determine with certainty the number and amount of priority claims. This argument persuaded both the bankruptcy and district courts to strip the IRS’s untimely filed § 507 claim of its priority status under § 726(a)(1). However, this argument based upon the Bankruptcy Rules ignores the above-referenced provisions of the current Bankruptcy Code that provide that claims can be both allowed and tardily filed, and do not distinguish priority claims by the timeliness of their filing. Nowhere does the trustee account for the language in subsections (a)(2) and (a)(3) of § 726 which expressly refers to “allowed” claims that are “tardily filed” and, indeed, orders their payment. Plainly, the scheme set forth in § 726(a) imposes no threshold requirement of timely filing for a claim to be “allowed” and thus eligible for payment. The trustee’s argument also ignores the fact that in § 502 of the Bankruptcy Code, the section expressly governing the disallowance of claims, eight specified grounds for disallowance are set forth and untimeliness is not among them. Moreover, § 501 of the Bankruptcy Code addresses the conditions for the filing of proofs of claim without imposing a timeliness requirement. Therefore, to the extent Rule 3002 suggests that a late filed claim must be disallowed, it is inconsistent with the text of §§ 726, 502, and 501. Rule 3002 was derived from the former Rule 302, applicable under the Bankruptcy Act of 1898, eh. 541, 30 Stat. 544. Section 57(n) of the former Bankruptcy Act specifically disallowed claims not filed within six months after the first meeting of creditors, see 11 U.S.C. § 93(n) (1976), and Rule 302(a) accommodated this statutory requirement by providing that a claim had to be filed within the six-month period in order to be allowed." }, { "docid": "1313019", "title": "", "text": "of this title; and (ii) proof of such claim is filed in time to permit payment of such claim; (3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title, other than a claim of the kind specified in paragraph (2)(C) of this subsection; (4) fourth, in payment of any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, arising before the earlier of the order for relief or the appointment of a trustee, to the extent that such fine, penalty, forfeiture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim; (5) fifth, in payment of interest at the legal rate from the date of the filing of the petition, on any claim paid under paragraph (1), (2), (3), or (4) of this subsection; and (6) sixth, to the debtor. . Both sections employ the phrase \"in payment of any allowed unsecured claims, ... proof of which is tardily filed under section 501(a) of this title ...” 11 U.S.C. Sections 726(a)(2)(C) and (a)(3) (emphasis added). . The question then arises: Why does Bankruptcy Rule 3002, as the procedural mechanism for section 501, require that a tardily filed claim be disallowed, when neither section 501(a) or section 502(b) call for such a requirement? The court in In re Hausladen, 146 B.R. 557, 559 (Bankr.D.Minn.1992), offers a possible explanation, as follows: Read together, Rules 3002(a) and 3002(c) do not explicitly say but imply that filing with in the prescribed period is a prerequisite to allowance. This erroneous reading arose when the drafters of the new Rule 3002 hastefully copied the substance of the old Rule 302 without paying any attention to the major change in the underlying statute. Under the Bankruptcy Act, late claims were explicitly disallowed. Section 57(n) of the Act provided that ... '[cjlaims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed ...' 11 U.S.C. § 93(n) (repealed Oct." }, { "docid": "23232399", "title": "", "text": "disallowed under the Code. Because lateness is not an enumerated ground, the court concluded that a claim may not be disallowed for that reason. Hausladen, 146 B.R. at 559. The Minnesota court read Fed. R.Bankr.P. 3002 to be consistent with its interpretation of § 502. Hausladen, 146 B.R. at 560, n. 5. Rule 3002 states: (a) NECESSITY FOR FILING. An unsecured creditor or an equity security holder must file a proof of claim or interest in accordance with this rule for the claim or interest to be allowed.... (c) TIME FOR FILING. In a chapter 7 liquidation, chapter 12 family farmer’s debt adjustment, or chapter 13 individual debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code.... The court stated that Rule 3002 does not explicitly require filing within the 90-day period for the claim to be allowed, although the court recognized that such an interpretation is implied by the rule. Therefore, it concluded, reading the rule to require filing within the 90-day period is erroneous: This erroneous reading arose when the drafters of the new Rule 3002 hastefully copied the substance of old Rule 302 without paying any attention to the major change in the underlying statute. Under the Bankruptcy Act, late claims were explicitly disallowed. Section 57(n) of the Act provided that ... “[cjlaims which are not filed within six months after the first date set for the first meeting of creditors .shall not be al-lowed_” 11 U.S.C. § 93(n) (repealed Oct. 1, 1979) (emphasis added). The old Bankruptcy Rule implemented this time bar. However, a time bar does not expressly exist under the Code or Rules. Hausladen, 146 B.R. at 559 (emphasis in original; footnote omitted). The Minnesota court stated that the 90-day filing deadline established by Rule 3002 relates to the classification of claims as timely or tardy. This classification determines the priority of a claim. In support of its position the court pointed to § 726 of the Code which provides for the payment" }, { "docid": "14184967", "title": "", "text": "(November 30, 1992) claim because they related back to the original claim. The bankruptcy court disallowed the claim for payroll taxes, however, because that claim was of a character different from those set forth in the original proof of claim and thus were untimely filed pursuant to Rule 3002(c). The IRS appealed to the Bankruptcy Appellate Panel of the Ninth Circuit, which affirmed. The flash point of controversy is the power and authority of the bankruptcy court to enforce a claims bar in a Chapter 13 proceeding under Bankruptcy Rule 3002(c), which provides: (c) Time for filing In a chapter 7 liquidation ... or chapter 13 individual’s debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code ... (1) On motion of the United States, a state, or subdivision thereof before the expiration of such period and for cause shown, the court may extend the time for filing of a claim by the United States, a state, or subdivision thereof. Although Bankruptcy Rule 3002 is merely a procedural rule, it has the force of law unless it is in direct violation of a specific statutory provision. The Advisory Committee note to Rule 3002 states in part the following: Subdivision (a) of this rule is substantially a restatement of the general requirement that claims be proved and filed.... Subdivision (c) is adapted from former Bankruptcy Rule 302(e) but changes the time limits on the filing of claims in chapter 7 and 13 cases from six months to 90 days after the first date set for the meeting of creditors ... Former Rule 302 applied to proceedings brought under the Bankruptcy Act of 1898, ch. 541, 30 Stat. 544. Section 57(n) of the 1898 Act specifically disallowed claims not filed within six months after the first meeting of creditors, see 11 U.S.C. § 93(n) (1976), and Rule 302(a) accommodated this statutory requirement by providing that a claim had to be filed within the six-month period in order to be allowed. Prior" }, { "docid": "18597116", "title": "", "text": "No. 5 alleging an administrative expense claim in the amount of $10,000.00. On February 19, 1993, the Service withdrew that claim as having been filed in error. . Federal Bankruptcy Rule 3002 determines the time for filing a claim. . See Footnote 2 supra. . As discussed by the Court in In re Hausladen, 146 B.R. 557 (Bankr.D.Minn.1992), the new Rule 3002 mirrored old Rule 302 without making adjustments for the changes in the underlying statutory provisions. Section 57(n) of the Bankruptcy Act provides that ... \"[cjlaims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed ...\" Id. at 559, citing 11 U.S.C. (repealed Oct. 1, 1979). Under the Act, the time frame for the filing of proofs of claim was a time bar, beyond which the statute specifically precluded the allowance of claims. The applicable rule, Rule 302, implemented the six month time bar. The Bankruptcy Code did not carry forward the time bar of section 57(n). Rather, under Section 502, a proof of claim is presumptively allowed, absent the filing of an objection by a party in interest. § 502. Allowance of claims or interests. (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects. (b) ... if such objection to a claim is made, the court, after notice and a hearing ... shall allow such claim in such amount except to the extent that— 11 U.S.C. § 502 (emphasis added). Section 502 enumerates eight specific grounds for disallowing claims. The court in Hausladen noted that tardy or late filing is not one of the stated grounds for disallowance. \"The words are clear; lateness is not a ground for disallowance under section 502 of the Code.’ \" Hausladen, 146 B.R. at 559, citing In re Horner, 1991 WL 353297 (Bankr.N.D.Ill. Sept. 21, 1991) (dicta); Judge Keith M." }, { "docid": "215274", "title": "", "text": "first date set for the first meeting of creditors shall not be allowed Hausladen, supra, 146 B.R. at 559 (emphasis in original) (citing 11 U.S.C. § 93(n)) (repealed Oct. 1, 1979). Former Bankruptcy Rule 13-302(e)(2) implemented this time bar by adopting the time limits on the filing of claims established by § 57(n) of the Act. Hausladen, supra, 146 B.R. at 561 (citing the Advisory Committee Note to Rule 13-302(e)(2)). The legislative history to the Bankruptcy Reform Act reveals, however, that in revising and modernizing the bankruptcy law “nearly all procedural matters [formerly incorporated in the provisions of the Act] have been removed and left to the Rules of Bankruptcy Proce-dure_ H.R.Rep. No. 595, 95th Cong., 1st Sess. 449 (1977), reprinted in, 1978 U.S.Code Cong. & Admin.News 5963, 6405. Thus, the fact that former § 57(n) of the Bankruptcy Act explicitly disallowed late claims while Code § 502(b) does not, fails to establish an abandonment of the Congressional “bar date” concept in light of the language of Fed.R.Bankr.P. 3002(a). Further, Hausladen’s analogy to the treatment of untimely proofs of claim under Code § 726(a) is not applicable in these proceedings since that provision admittedly only applies in a liquidation case under Chapter 7 and implicates concerns different than those addressed under Chapter 13. Under Code § 726(a)(2)(C)(i) and (ii), the tardily filed claims of creditors without notice or actual knowledge of the bankruptcy case, whose claims are filed in time to permit payment, are grouped with other allowed unsecured non-priority claims, see Code § 726(a)(2), for payment ahead of other tardily filed claims where the creditor had notice but simply missed the bar date. See Code § 726(a)(3). Thus, in a Chapter 7 liquidation, tardily filed claims in the latter category will be paid only after all other claims ahead of it in priority have been paid in full. See also Fed.R.Bankr.P. 3002(c)(6). In direct contrast to Code § 726(a), however, there is no Chapter 13 corollary. Aside from there being a lack of notice, the only basis upon which tardily filed claims might be classified for purposes of treatment" }, { "docid": "13698275", "title": "", "text": "re Hausladen, nearly every court that considered the question under Rule 3002(c) followed the majority view regarding § 57(n) of the Act and old Rule 13-302 that late-filed claims were barred. Assuming that the interpretation of old Rule 13-302 and § 57(n) of the Act was correct, then this interpretation should apply to §§ 501 and 502 and Rule 3002(c) because “Subdivision (c) is adapted from former Bankruptcy Rule 302(e) but changes the time limits on the filing of claims in chapter 7 and 13 eases from six months to 90 days after the first date set for the meeting of creditors.” FED.R.BANKR.P. 3002(c), Adv.Comm. Note. C. The Hausladen Decision Prior to the decision in In re Hausladen, therefore, it was well-settled that late-filed claims were to be disallowed and extensions of time were limited to the situations explicitly described in Rule 3002. The court in Hausladen, however, rejected those principles by allowing late-filed claims in all circumstances. 146 B.R. 557 (Bankr.D.Minn.1992) (en bane). The court rejected the view that timely filing is a prerequisite to allowance. Id. at 559. The court reasoned that when Rules 3002(a) and 3002(e) are read together, they merely imply that timely filing is a prerequisite to allowance. Id. The court explained that it is improper to read these Rules as mandating timely filing as a prerequisite to allowance by concluding that “the drafters of the new Rule 3002 hastefully copied the substance of old Rule 302 without paying any attention to the major change in the underlying statute.” Id. This major change was that the Act contained an express time bar, but the Code does not. Id. The Act, unlike the Code, provided that claims filed after a specified date “shall not be allowed.” See 11 U.S.C. § 93(n) (repealed 1978). There is no similar language in §§ 501 or 502 of the Code. 146 B.R. at 559. The majority of the court’s analysis centered around § 502, however. The court first noted that § 502 exclusively governs the allowance and disallowance of claims and that § 502 lists eight specific grounds for disal-lowance." }, { "docid": "4709655", "title": "", "text": "threshold requirement of timely filing for a claim to be “allowed” and thus eligible for payment. The trustee’s argument also ignores the fact that in § 502 of the Bankruptcy Code, the section expressly governing the disallowance of claims, eight specified grounds for disallowance are set forth and untimeliness is not among them. Moreover, § 501 of the Bankruptcy Code addresses the conditions for the filing of proofs of claim without imposing a timeliness requirement. Therefore, to the extent Rule 3002 suggests that a late filed claim must be disallowed, it is inconsistent with the text of §§ 726, 502, and 501. Rule 3002 was derived from the former Rule 302, applicable under the Bankruptcy Act of 1898, eh. 541, 30 Stat. 544. Section 57(n) of the former Bankruptcy Act specifically disallowed claims not filed within six months after the first meeting of creditors, see 11 U.S.C. § 93(n) (1976), and Rule 302(a) accommodated this statutory requirement by providing that a claim had to be filed within the six-month period in order to be allowed. The current Bankruptcy Code contains no provision comparable to former § 57(n) disallowing late claims. With its statutory underpinning removed and because it now contravenes § 726(a) and other Code provisions, a rule of procedure that disallows claims for untimeliness cannot stand. See In re Gullatt, 164 B.R. 279, (Bankr.M.D.Tenn.1994); In re Hausladen, 146 B.R. 557, 559-61 (Bankr.D.Minn.1992) (both discussing tensions between Rule 3002 and the Bankruptcy Code). While we do not accept the trustee’s argument based on Bankruptcy Rule 3002, we note that even if we did, it would not lead to the result reached by the bankruptcy and district courts. A claim that is disallowed under Rule 3002 would have to be completely expunged, not simply subordinated. The courts’ subordination of the IRS’s “disallowed” claim to the third tier of distribution is also inconsistent with subsection (a)(3)’s identification of claims to be paid under its proviso as “allowed” claims. Neither the trustee nor the lower courts explain how their concept of allowance can be applied to exclude as “disallowed” a claim from subsection" }, { "docid": "3716249", "title": "", "text": "MEMORANDUM KEITH M. LUNDIN, Bankruptcy Judge. The question presented is whether a tardy claim is allowable in a Chapter 13 case. Late filing does not require disallowance. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I Connie and Sandra Gullatt filed Chapter 13 on February 11, 1993. Pursuant to Bankruptcy Rule 3002(c), timely proofs of claim were due before June 16, 1993. On August 16, 1993, the Veterans’ Administration filed proof of an unsecured claim for $13,966.95. The debtors objected to allowance of the V.A.’s claim on the ground it was untimely. II Chief Judge George C. Paine II of this District recently held that a claim in a Chapter 13 case was not disallowed solely because proof was filed after the deadline fixed by Rule 3002(c). In re Sullins, 161 B.R. 957 (Bankr.M.D.Tenn.1993). This conclusion was based on the reasoning of In re Hausladen, 146 B.R. 557 (Bankr.D.Minn. 1992). These debtors and the standing Chapter 13 trustees in this district urge departure from Sidlins based on the reasoning of In re Zimmerman, 156 B.R. 192, 197 (Bankr.W.D.Mich.1993), In re Bailey, 151 B.R. 28, 32 (Bankr.N.D.N.Y.1993), and other decisions contrary to Hausladen. At least five arguments from statutory interpretation support the outcome in Sullins: 1. No provision of the Bankruptcy Code disallows an untimely claim. Section 57n of the former Bankruptcy Act specifically disallowed late claims. Section 502 of the Code mandates that “the court ... shall alloiu ... claim[s]” (emphasis added) unless an enumerated ground for disallowance applies. Late filing is not enumerated. The deletion of § 57n and the enactment of a different statutory scheme in § 502(b) signalled a change in the treatment of late-filed claims in bankruptcy cases under the Code. 2. Sections 501(b) and (c) have vitality only if untimely filed claims are allowable. 11 U.S.C. § 501(a) states (permissibly) that “a creditor ... may file a proof of claim.” (emphasis added). Section 501(b) and (c) permit the debtor, the trustee or a co-debtor to file a proof of claim on behalf of a creditor, “if a creditor does not timely" }, { "docid": "5932191", "title": "", "text": "(siding with Zimmerman over Hausladen); In re Parr, 165 B.R. 677, 681-83 (Bankr.N.D.Ala.) (siding with Zimmerman over Hausladen and also citing a number of other recent supporting decisions); 8 Collier on Bankruptcy ¶ 3002.02[1] (Lawrence P. King ed., 15th ed. 1994) (“Rule 3002 complements §§ 501 and 502 of the Code”). Contra Haus-laden, 146 B.R. at 557 (“section 502 and Rule 3002 are not complementary but independent”). C. Contrary to Hausladen’s reading of the legislative history, this Court finds no indication that the removal from the Code to the Rules of the provision disallowing tardy claims signalled a major change in bankruptcy law. Under the previous Bankruptcy Act, § 57(n) specifically disallowed late filed claims. Former Bankruptcy Rule 302(e) set the time limit for filing Chapter 7 and Chapter 13 claims at 6 months. See Advisory Committee Notes following Rule 3002(c). The Advisory Committee Notes following Rule 3002(c) make clear that the new Rule 3002(e) was simply adapted from former Rule 302(e), with the minor change in the length of time provided for filing. As explained in In re Bailey, 151 B.R. 28 (Bankr.N.D.N.Y.1993), the absence of specific statutory disallowance of tardy claims did not signal a change from the previous law barring tardy claims. Rather, the legislative history of § 501 shows that specific procedural details under the Code were intentionally left for the Federal Rules of Bankruptcy Procedure: “The Rules ... will set the time limits, the form, and the procedure for filing, which will determine whether claims are timely or tardily filed.” Id. at 31, citing H.R.Rep. No. 595 95th Cong., 1st Sess. 351 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6307; see also Historical and Revision Notes following 11 U.S.C. § 501. Further legislative history states that in modernizing the bankruptcy law, “nearly all procedural matters [formerly incorporated in the provisions of the Act] have been removed and left to the Rules of Bankruptcy Procedure.” Bailey, 151 B.R. at 32, (citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 449 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6405). What the legislative history does" }, { "docid": "5932190", "title": "", "text": "ignores is that proper filing of a claim under § 501 is a condition precedent to consideration under § 502. Zimmerman, 156 B.R. at 195. Section 502(a) refers to a claim “proof of which is filed under section 501”; section 502(b) instructs a court to “allow such claim” if it does not come within one of the listed exceptions. If a claim is not properly filed under § 501, a court need not examine the exceptions set out in § 502(b). Section 501 states inter alia that a creditor may file a proof of claim, and that if the creditor fails to timely file, proof of claim may be filed by other specified parties. Sections 501 and 502 are therefore consistent with Rule 3002’s disallowance of late filed claims. This court agrees with Zimmerman ’s conclusion that Rule 3002 is a procedural complement to §§ 501 and 502, rather than Hausladen’s conclusion that Rule 3002 is a conflicting substantive requirement. Zimmerman, 156 B.R. at 197; see also In re Messics, 159 B.R. 803 (Bankr.N.D.Ohio 1993) (siding with Zimmerman over Hausladen); In re Parr, 165 B.R. 677, 681-83 (Bankr.N.D.Ala.) (siding with Zimmerman over Hausladen and also citing a number of other recent supporting decisions); 8 Collier on Bankruptcy ¶ 3002.02[1] (Lawrence P. King ed., 15th ed. 1994) (“Rule 3002 complements §§ 501 and 502 of the Code”). Contra Haus-laden, 146 B.R. at 557 (“section 502 and Rule 3002 are not complementary but independent”). C. Contrary to Hausladen’s reading of the legislative history, this Court finds no indication that the removal from the Code to the Rules of the provision disallowing tardy claims signalled a major change in bankruptcy law. Under the previous Bankruptcy Act, § 57(n) specifically disallowed late filed claims. Former Bankruptcy Rule 302(e) set the time limit for filing Chapter 7 and Chapter 13 claims at 6 months. See Advisory Committee Notes following Rule 3002(c). The Advisory Committee Notes following Rule 3002(c) make clear that the new Rule 3002(e) was simply adapted from former Rule 302(e), with the minor change in the length of time provided for filing. As" }, { "docid": "1313020", "title": "", "text": "tardily filed under section 501(a) of this title ...” 11 U.S.C. Sections 726(a)(2)(C) and (a)(3) (emphasis added). . The question then arises: Why does Bankruptcy Rule 3002, as the procedural mechanism for section 501, require that a tardily filed claim be disallowed, when neither section 501(a) or section 502(b) call for such a requirement? The court in In re Hausladen, 146 B.R. 557, 559 (Bankr.D.Minn.1992), offers a possible explanation, as follows: Read together, Rules 3002(a) and 3002(c) do not explicitly say but imply that filing with in the prescribed period is a prerequisite to allowance. This erroneous reading arose when the drafters of the new Rule 3002 hastefully copied the substance of the old Rule 302 without paying any attention to the major change in the underlying statute. Under the Bankruptcy Act, late claims were explicitly disallowed. Section 57(n) of the Act provided that ... '[cjlaims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed ...' 11 U.S.C. § 93(n) (repealed Oct. 1, 1979). The old Bankruptcy Rule implemented this time bar. However, a time bar does not expressly exist under the Code or Rules, (emphasis original). . The court recognizes that such a creditor is not completely without recourse. 11 U.S.C. Section 523(a)(3) allows a creditor, who is neither listed nor scheduled by a debtor, to have its claim excepted from discharge so that it might pursue the debtor after the discharge in bankruptcy is granted. This provision does not, however, completely protect that creditor. See e.g., In re International Resorts, Inc., 74 B.R. 428, 430 (Bankr.N.D.Ala.1987) (court sustained trustee's objections to untimely claims filed by creditor, who was not listed or scheduled by debtor, even though court acknowledged that creditor would never have any means of collecting its judgment because only a defunct corporation would remain after distribution of assets). . Unfortunately, section 726(a) is not as artfully drafted when dealing with tardily filed priority claims. See e.g., U.S. v. Cardinal Mine Supply, Inc., 916 F.2d 1087, 1089 (6th Cir.1990); In re Rago, 149 B.R." }, { "docid": "14184968", "title": "", "text": "States, a state, or subdivision thereof. Although Bankruptcy Rule 3002 is merely a procedural rule, it has the force of law unless it is in direct violation of a specific statutory provision. The Advisory Committee note to Rule 3002 states in part the following: Subdivision (a) of this rule is substantially a restatement of the general requirement that claims be proved and filed.... Subdivision (c) is adapted from former Bankruptcy Rule 302(e) but changes the time limits on the filing of claims in chapter 7 and 13 cases from six months to 90 days after the first date set for the meeting of creditors ... Former Rule 302 applied to proceedings brought under the Bankruptcy Act of 1898, ch. 541, 30 Stat. 544. Section 57(n) of the 1898 Act specifically disallowed claims not filed within six months after the first meeting of creditors, see 11 U.S.C. § 93(n) (1976), and Rule 302(a) accommodated this statutory requirement by providing that a claim had to be filed within the six-month period in order to be allowed. Prior to the Bankruptcy Reform Act of 1994, the Bankruptcy Code contained no provision comparable to former Section 57(n) disallowing late claims. Yet the legislative history of 11 U.S.C. § 501 indicates that Congress intended to delegate to the Rules of Bankruptcy Procedure the authority to suggest proper time limits: The Rules of Bankruptcy Procedure will set the time limits, the form, and the procedure for filing, which will determine whether claims are timely or tardily filed. The rules governing time limits for filing proofs of claims will continue to apply under section 405(d) of the bill. These provide a 6-month bar date for the filing of tax claims.... In light of the difficult administrative burden on taxing authorities, especially the Internal Revenue Service, in dealing with a bankrupt taxpayer and being required to prepare and file a tax claim, it is anticipated that any amendment to the Rules of Bankruptcy Procedure will not deprive taxing authorities of this amount of time to file proofs of claims. H.R.Rep. No 595, 95th Cong. 1st Sess. 351 (1977);" }, { "docid": "215272", "title": "", "text": "first date set for the meeting of creditors called pursuant to [Code] § 341.... ” Use of the term “shall” indicates that in order to participate in a Chapter 13 distribution a creditor must file a proof of claim within the time limit set out in the Rule. In re Nohle, supra, 93 B.R. at 14. Code § 502(a) provides that a claim, proof of which is filed under Code § 501, will be deemed allowed unless a party in interest objects. The basis upon which such a party may object are provided in Code § 502(b). Untimeliness in filing is not one of them. However, reading these Code sections together with Fed.R.Bankr.P. 3002(a) and (c) this Court concludes that in order for an unsecured creditor’s claim to meet the threshold requirement for allowance under Code § 502(a), a proof of claim must be filed under Code § 501 which comports with Fed.R.Bankr.P. 3002(a) and (c). Failure to meet these simple requirements will result in the claim being disallowed, or more appropriately expunged. Cf. In re Wilson, supfa, 90 B.R. 491 (impliedly holding that a Chapter 13 creditor’s tardy proof of claim was a complete nullity thereby validating the clerk’s refusal to accept such proof of claim for filing after the bar date had passed). Since Erie’s proof of claim did not conform with the time limit prescribed by Rule 3002(c) and the Court is without discretion to extend the period, see In re King, 90 B.R. 155, 158 (Bankr.E.D.N.C.1988) (citing Maressa v. A.H. Robbins Co., Inc., 839 F.2d 220, 221 (4th Cir.), cert. denied, A.H. Robbins Co., Inc. v. Maressa, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 53 (1988)); see also Fed.R.Bankr.P. 9006(b)(3), its claim must be expunged. The Hausladen court finds that the current practice of disallowing late filed claims resulted from improperly carrying over pre-code law into present practice. Hausladen, supra, 146 B.R. at 559. That court observes that under the Bankruptcy Act, late claims were explicitly disallowed: “[s]ection § 57(n)of the Act provided that ... ‘[cjlaims which are not filed within six months after the" }, { "docid": "215273", "title": "", "text": "re Wilson, supfa, 90 B.R. 491 (impliedly holding that a Chapter 13 creditor’s tardy proof of claim was a complete nullity thereby validating the clerk’s refusal to accept such proof of claim for filing after the bar date had passed). Since Erie’s proof of claim did not conform with the time limit prescribed by Rule 3002(c) and the Court is without discretion to extend the period, see In re King, 90 B.R. 155, 158 (Bankr.E.D.N.C.1988) (citing Maressa v. A.H. Robbins Co., Inc., 839 F.2d 220, 221 (4th Cir.), cert. denied, A.H. Robbins Co., Inc. v. Maressa, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 53 (1988)); see also Fed.R.Bankr.P. 9006(b)(3), its claim must be expunged. The Hausladen court finds that the current practice of disallowing late filed claims resulted from improperly carrying over pre-code law into present practice. Hausladen, supra, 146 B.R. at 559. That court observes that under the Bankruptcy Act, late claims were explicitly disallowed: “[s]ection § 57(n)of the Act provided that ... ‘[cjlaims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed Hausladen, supra, 146 B.R. at 559 (emphasis in original) (citing 11 U.S.C. § 93(n)) (repealed Oct. 1, 1979). Former Bankruptcy Rule 13-302(e)(2) implemented this time bar by adopting the time limits on the filing of claims established by § 57(n) of the Act. Hausladen, supra, 146 B.R. at 561 (citing the Advisory Committee Note to Rule 13-302(e)(2)). The legislative history to the Bankruptcy Reform Act reveals, however, that in revising and modernizing the bankruptcy law “nearly all procedural matters [formerly incorporated in the provisions of the Act] have been removed and left to the Rules of Bankruptcy Proce-dure_ H.R.Rep. No. 595, 95th Cong., 1st Sess. 449 (1977), reprinted in, 1978 U.S.Code Cong. & Admin.News 5963, 6405. Thus, the fact that former § 57(n) of the Bankruptcy Act explicitly disallowed late claims while Code § 502(b) does not, fails to establish an abandonment of the Congressional “bar date” concept in light of the language of Fed.R.Bankr.P. 3002(a). Further, Hausladen’s analogy to the treatment" }, { "docid": "4709656", "title": "", "text": "The current Bankruptcy Code contains no provision comparable to former § 57(n) disallowing late claims. With its statutory underpinning removed and because it now contravenes § 726(a) and other Code provisions, a rule of procedure that disallows claims for untimeliness cannot stand. See In re Gullatt, 164 B.R. 279, (Bankr.M.D.Tenn.1994); In re Hausladen, 146 B.R. 557, 559-61 (Bankr.D.Minn.1992) (both discussing tensions between Rule 3002 and the Bankruptcy Code). While we do not accept the trustee’s argument based on Bankruptcy Rule 3002, we note that even if we did, it would not lead to the result reached by the bankruptcy and district courts. A claim that is disallowed under Rule 3002 would have to be completely expunged, not simply subordinated. The courts’ subordination of the IRS’s “disallowed” claim to the third tier of distribution is also inconsistent with subsection (a)(3)’s identification of claims to be paid under its proviso as “allowed” claims. Neither the trustee nor the lower courts explain how their concept of allowance can be applied to exclude as “disallowed” a claim from subsection (a)(1) but reinclude it as an “allowed” claim under subsection (a)(3). We disagree as well with bankruptcy courts in other jurisdictions that have subordinated priority claims to the third tier of distribution based on the tardiness of their filing. See IRS v. Ulrich (In re Mantz), 151 B.R. 928, 930-31 (9th Cir. BAP 1993); In re Elec. Management, Inc., 133 B.R. 90, 92 (Bankr.N.D.Ohio 1991); In re Mayville Feed & Grain, Inc., 123 B.R. 245, 246-47 (Bankr.E.D.Mich.1991). These courts have also read a timeliness requirement into § 726(a)(1) despite the absence of such language in that provision or in others in the Code, and have failed to address the inconsistencies that arise as a result of their narrow reading of § 726(a)(1) to exclude late filed priority claims, their broad reading of § 726(a)(3) to include late filed priority claims, and their construction of Rule 3002 to permit subordination and not disallowance of such claims. Our reasoning is consistent with the construction of § 726(a) set forth by the Sixth Circuit in United States v." }, { "docid": "21604709", "title": "", "text": "filed to affect its status as “allowed” or “disallowed.” Cf. In re Gerwer, 898 F.2d 730, 732 (9th Cir.1990) (“The express enumeration indicates that other exceptions should not be implied.”). A review of the former Bankruptcy Act confirms our judgment that this claim is “allowed” under the Code regardless of when proof of a claim was filed. Section 57(n), 11 U.S.C. § 93(n), provided: ... all claims provable under this Act, including all claims of the United States ... shall be proved and filed in the manner provided in this section. Claims which are not filed within six months after the first date set for the first meeting of creditors, shall not be allowed.... (Emphasis added.) Under section 57(n), a bankruptcy court had no discretion to allow untimely claims such as this to be filed. In re Pigott, 684 F.2d 239, 242 (3d Cir.1982). The Bankruptcy Reform Act of 1978 repealed section 57(n). Vertientes, Ltd. v. Internar Trade, Inc. (In re Vertientes), 845 F.2d 57, 59 (3d Cir.1988). The deliberate omission of the provision disallowing untimely claims, combined with section 501’s silence on the effect of an untimely filing of a claim, confirms Congress intended untimely claims such as this to be allowed under the Code. See Stewart v. Ragland, 934 F.2d 1033, 1037 n. 6 (9th Cir.1991) (Stewart). Rule 3002(c)’s time limits simply demark whether a claim is timely or late for purposes of distribution under section 726. In re Corporation de Servicios Medico-Hospitalarios de Fajardo, Inc., 149 B.R. 746, 750 (Bankr.D.P.R.1993); In re Rago, 149 B.R. 882, 885 (Bankr.N.D.Ill.1992); In re Hausladen, 146 B.R. 557, 560 (Bankr.D.Minn.1992). Rule 3002(c) does not disallow a late claim. It simply divides claims into two categories: timely and late. Ill We now turn to the question of the effect of a failure to comply with Rule 3002(c)’s time limitations on a priority claim’s order of distribution under section 726(a). The IRS’s claim for federal taxes would ordinarily be entitled to first distribution under section 726(a)(1). The IRS contends its claim retains the right to first distribution even though proof of the claim" }, { "docid": "21604708", "title": "", "text": "in stating a claim “is deemed allowed” if filed in accordance with section 501 requires us to conclude that a claim is allowed as long as the requirements of section 501 are met. Section 501 only provides that a claim “may be filed” and imposes no time limit or other qualification on the filing of a claim. We disagree with the district court’s conclusion that section 501 incorporates Rule 3002(c). While Rule 3002(c) mandates a claim be filed within 90 days, section 501 imposes no such requirement. Thus, to construe section 501 as incorporating Rule 3002(c) would create a result at odds with the plain language of the Code. An examination of section 502(b) further supports our conclusion that this claim should be allowed under the Code regardless of when it is filed. That section enumerates categories of claims which are disallowed. None of the categories refer to tardy claims. Section 502(b)’s omission of tardy claims from its recitation of disallowed claims suggests that Congress did not intend for the time in which claims are filed to affect its status as “allowed” or “disallowed.” Cf. In re Gerwer, 898 F.2d 730, 732 (9th Cir.1990) (“The express enumeration indicates that other exceptions should not be implied.”). A review of the former Bankruptcy Act confirms our judgment that this claim is “allowed” under the Code regardless of when proof of a claim was filed. Section 57(n), 11 U.S.C. § 93(n), provided: ... all claims provable under this Act, including all claims of the United States ... shall be proved and filed in the manner provided in this section. Claims which are not filed within six months after the first date set for the first meeting of creditors, shall not be allowed.... (Emphasis added.) Under section 57(n), a bankruptcy court had no discretion to allow untimely claims such as this to be filed. In re Pigott, 684 F.2d 239, 242 (3d Cir.1982). The Bankruptcy Reform Act of 1978 repealed section 57(n). Vertientes, Ltd. v. Internar Trade, Inc. (In re Vertientes), 845 F.2d 57, 59 (3d Cir.1988). The deliberate omission of the provision disallowing" }, { "docid": "11562115", "title": "", "text": "In re Sullins, 161 B.R. 957 (Bankr. M.D.Tenn.1993); Matter of Brenner, 160 B.R. 302 (Bankr.E.D.Mich.1993); In re Jud- kins, 151 B.R. 553 (Bankr.D.Colo.1993); and, In re Rago, 149 B.R. 882 (Bankr.N.D.Ill.1992). On April 5,1994, the Second Circuit decided In re Vecchio, 20 F.3d 555 (2d Cir.1994). In Vecchio, the Second Circuit held that priority claims in Chapter 7 proceedings need not be timely filed to be allowed, and that the Bankruptcy Rules cannot stand to the extent that they conflict with the Bankruptcy Code: Section 726(a)(1) accords priority status to claims specified in § 507 without regard to the timeliness of their filing. In sharp contrast, subsections (a)(2) and (a)(3) of § 726 categorize non-priority unsecured claims into those that are timely filed, those that are tardily filed where the creditor did not have proper notice of the bankruptcy, and those that are tardily filed where the creditor received proper notice of the bankruptcy. Thus, Congress plainly knew how to distinguish between timely and tardily filed claims, yet did not make that distinction for claims filed under § 507. The absence of a timeliness distinction in § 726(a)(1) strongly suggests that this subsection encompasses all priority claims whenever filed. ... The trustee’s argument also ignores the fact that in § 502 of the Bankruptcy Code, the section expressly governing the disallowance of claims, eight specified grounds for disallowance are set forth and untimeliness is not among them. Moreover, § 501 of the Bankruptcy Code addresses the conditions for the filing of proofs of claim without imposing a timeliness requirement. Therefore, to the extent Rule 3002 suggests that a late filed claim must be disallowed, it is inconsistent with the text of §§ 726, 502, and 501.... [BJecause it now contravenes § 726(a) and other Code provisions, a rule of procedure that disallows claims for untimeliness cannot stand. We accept ... that our straightforward reading of § 726(a) results in no penalty for priority creditors who, with notice of the bankruptcy, fail to file their claims within prescribed deadlines. To be sure, the logic of our reading of § 726(a) leads" }, { "docid": "11562116", "title": "", "text": "filed under § 507. The absence of a timeliness distinction in § 726(a)(1) strongly suggests that this subsection encompasses all priority claims whenever filed. ... The trustee’s argument also ignores the fact that in § 502 of the Bankruptcy Code, the section expressly governing the disallowance of claims, eight specified grounds for disallowance are set forth and untimeliness is not among them. Moreover, § 501 of the Bankruptcy Code addresses the conditions for the filing of proofs of claim without imposing a timeliness requirement. Therefore, to the extent Rule 3002 suggests that a late filed claim must be disallowed, it is inconsistent with the text of §§ 726, 502, and 501.... [BJecause it now contravenes § 726(a) and other Code provisions, a rule of procedure that disallows claims for untimeliness cannot stand. We accept ... that our straightforward reading of § 726(a) results in no penalty for priority creditors who, with notice of the bankruptcy, fail to file their claims within prescribed deadlines. To be sure, the logic of our reading of § 726(a) leads to the conclusion that first priority payment could be accorded even to claims filed after the distribution of the estate’s assets. However, we believe that bankruptcy courts can adequately address these concerns through the careful exercise of their discretion over the entry of disgorgement orders.... In addition, bankruptcy courts have authority to subordinate a late filed priority claim under principles of equitable subordination. ... Congress, of course, may wish to consider whether late filing of all or some priority claims in bankruptcy should be penalized. Such legislation, however, is not part of the judicial function.... 20 F.3d at 557-60 (citations omitted). On August 18, 1994, the Ninth Circuit decided In re Pacific Atlantic Trading Co., 33 F.3d 1064 (9th Cir.1994). In Pacific Atlantic Trading, the Ninth Circuit held that a priority tax claim against a Chapter 7 debtor is not barred despite its untimeliness because conflicts between the Bankruptcy Code and the Bankruptcy Rules must be settled in favor of the Code: Whether a claim is “allowed” depends on compliance with sections 501 and 502...." } ]

[ { "docid": "12383773", "title": "", "text": "or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or terms of the plan ... 29 U.S.C. § 1132. In Count 1 of the original complaint, Joyce alleged that: 38. Defendants knew that plaintiff was eligible for long-term disability benefits under defendant’s plan. 39. Defendants should have advised plaintiff that because they did not offer him a suitable position which accommodated his handicap, plaintiff was eligible for benefits under defendant’s long-term disability plan____ 43. The failure of defendants either to place plaintiff in a job which he could perform consistent with his disability or to advise him that he was eligible for long-term disability was a constructive discharge from the company. These allegations come within ERISA § 502. Under subsection (a)(3), individuals may recover for breaches of the fiduciary duties imposed by ERISA. Bixler v. Central Pa. Teamsters Health-Welfare Fund, 12 F.3d 1292 (3d Cir.1993); Varity Corp. v. Howe, - U.S. -, -, 116 S.Ct. 1065, 1074, 134 L.Ed.2d 130 (1996). As Bixler makes clear, if a fiduciary “is aware of the beneficiary’s status and situation,” the fiduciary “has an obligation to convey complete and accurate information material to the beneficiary’s circumstance,” even if the beneficiary does not specifically ask for that information. 12 F.3d at 1300. Joyce’s allegations that RJR knew he was eligible for benefits but failed to so inform him, come squarely within § 502(a)(3). We accordingly affirm the district court’s conclusion that it had removal jurisdiction. We disagree with the district court’s conclusion, however, that ERISA preempts Joyce’s claim that RJR failed to accommodate his disability in violation of the NJLAD. Dist. Ct. Op. at 6. Joyce’s original complaint alleged both that RJR “could have accommodated plaintiffs handicap” and that defendants “failed to make a reasonable accommodation of plaintiffs disability by assigning plaintiff to a suitable position or by restructuring plaintiffs position.” Complaint ¶¶ 41, 42. Contrary to the district court’s conclusion, this claim — at least on the present state of the record — is not" } ]

[ { "docid": "18021051", "title": "", "text": "benefits is under consideration, “the only factor at issue is the degree of seriousness with which the change was in fact being considered.” Fischer II, 96 F.3d at 1538. This factor controls the materiality test: “[T]he more seriously a plan change is being considered, the more likely a misrepresentation ... will pass the threshold of materiality.” Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir.1993) (“Fischer I ”). Serious consideration, therefore, forms the crux of the inquiry. Fischer II, 96 F.3d at 1538-39 (collecting cases); see also Kurz v. Philadelphia Elec. Co., 994 F.2d 136, 140 (3d Cir.), cert. denied, 510 U.S. 1020, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993); Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1163-64 (6th Cir.1988) (“when serious consideration was given to implementing [improved benefits, the company] had a fiduciary duty not to make misrepresentations, either negligently or intentionally, to potential plan participants concerning the [change].”). Specifically, in Fischer II, the Third Circuit held that a company has a fiduciary duty as an ERISA plan administrator to provide truthful information in response to employee inquiries about possible changes to an employee pension benefit plan, once those changes are under “serious consideration.” Fischer II, 96 F.3d at 1538-39. This Court now holds that the trustees of a multiemployer pension fund have that same fiduciary duty of disclosure upon “serious consideration.” As the Third Circuit noted, “[t]he concept of ‘serious consideration’ recognizes and moderates the tension between an employee’s right to information and an employer’s need to operate on a day-to-day basis.” Id. at 1539; see also 120 Cong. Rec. 29,945 (1974) (statement of Senator Long) (“We know that new pension plans will not be adopted and that existing plans will not be expanded and liberalized if the costs are made overly burdensome, particularly for employers who generally foot most of the bill”). The “serious consideration” test, therefore, serves employers’ interests by limiting their obligations to disclose and giving them the freedom to consider possible amendments to their plans. Hockett v. Sun Co., Inc., 109 F.3d 1515, 1523 (10th Cir.1997). A rule requiring earlier" }, { "docid": "18021040", "title": "", "text": "detail below. Plaintiffs, for their part, endeavor to distinguish this case from Fischer II on a number of grounds, in order, presumably, to avoid the undesirable outcome compelled by Fischer II should the Court apply it here. The Court has found no cases in this Circuit (or any other for that matter) applying the Fischer II analysis in a suit against a multiemployer Fund rather than an employer. Therefore, the Court has expended considerable thought and devoted great care to its determination of the appropriate framework for analyzing this case. The Court has considered each of plaintiffs’ arguments against applying Fischer II here, as well as some of its own. A discussion of those issues follows. • A. Fiduciary Duty of Disclosure First, plaintiffs ask the Court to look to a line of cases that addresses the duty of disclosure regarding existing plan benefits and to find the fiduciary duty established therein binding on this defendant. Specifically, plaintiffs argue that Bixler v. Central Penn. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir.1993), should be “the focal point for the Court’s consideration.” Pltfs.’ Brief, at 4. In Bixler, the Third Circuit considered the extent to which an employer’s alleged misinformation or failure to provide relevant information constitutes an actionable breach of fiduciary duty under 29 U.S.C.A. § 1104(a). Id. at 1300. While at first blush, Bixler may appear to control here, a close reading of the case reveals that Bix-ler deals with disclosure regarding existing plan benefits, which is considered a fiduciary act of plan administration. Id. Bixler and its progeny, on which plaintiff likewise relies, are not relevant here for two reasons. First, the causes of action in those cases arose out of communications regarding existing plan benefits. See, e.g., Jordan v. Federal Express Corp., 116 F.3d 1005 (3d Cir.1997) (finding issues of fact sufficient to survive summary judgment on question of whether administrator violated its duty to disclose by providing beneficiary with an incomplete explanation of the terms and conditions of his retirement benefit election under the plan’s current terms); Joyce v. RJR Nabisco Holdings Corp., 126" }, { "docid": "23147733", "title": "", "text": "communications a reference to the reservation of rights clause. Notwithstanding these communications, Unisys denied having created vested medical benefits through its use of the word “lifetime,” and early in this litigation filed a motion for summary judgment seeking dismissal of all of the regular retirees’ claims based on the unambiguous reservation of rights clauses in the plans. On October 13, 1993, the district court granted summary judgment in favor of Unisys on the Sperry retirees’ claim that Unisys had breached its fiduciary duties. In re Unisys, 837 F.Supp. 670, 679-80 (E.D.Pa.1993). At the trial conducted on their contract claim, the Sperry retirees moved for reconsideration of their breach of fiduciary duty claim in light of our decision, rendered during trial, in Bixler v. Central Pa. Teamsters Health and Welfare Fund, in which we held that a direct action for breach of fiduciary duty is available under section 1132(a)(3)(B). Bixler, 12 F.3d 1292 (3d Cir.1994). The retirees argued that “even if the reservation of rights clause in the SPDs were intended to apply to existing retirees [as opposed to active employees], Sperry and later Unisys, had a fiduciary duty to make this point clear.” (A 2284). The district court observed: This is not a case where one or two low level benefits counselors told a few retirees that their benefits would continue for life. The message that medical benefits would last for life was confirmed repeatedly and systematically throughout the Sperry organization, by all levels of management, in writing and verbally. In fact, as the Findings make clear, several high level corporate executives, as well as personnel managers, testified that they believed the [reservation of rights clause] was inapplicable to retirees and counseled individuals accordingly. (A 2284). Although the district court also observed that the summary plan description is the controlling document upon which plan participants must rely and that informal communications cannot alter the terms of a written plan, the court discerned “a strong current in the Third Circuit that recognizes that an ERISA fiduciary may not ‘affirmatively mislead’ plan participants.” Id. (citing Bixler, 12 F.3d 1292, and Fischer v." }, { "docid": "2787375", "title": "", "text": "speaks, it must speak truthfully.” 994 F.2d at 135. This overarching duty of truthfulness forms an important part of our ERISA jurisprudence. See In re Unisys Corp. Retiree Medical Benefit “ERISA” Litig., 57 F.3d 1255, 1266-67 (3d Cir.1995), cert. denied, - U.S. -, -, 116 S.Ct. 1316, 134 L.Edüd 469, 470 (1996); Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292,1302-OS (3d Cir.1994). The rule of truthfulness that we announced in Fischer I focused on the materiality of a plan administrator’s misrepresentations. We defined materiality as a mixed question of law and fact, ultimately turning on whether “there is a substantial likelihood that [the misrepresentation] would mislead a reasonable employee in making an adequately informed decision about if and when to retire.” Id. at 135. We further explained that [¡Included within the overall materiality inquiry will be an inquiry into the seriousness with which a particular change to an employee pension plan is being considered at the time the misrepresentation is made. All else equal, the more seriously a plan change is being considered, the more likely a misrepresentation, e.g., that no change is under consideration, will pass the threshold of materiality. Id. In the current case, as in any case where the misrepresentation in question is the statement that no change in benefits is under consideration, the only factor at issue is the degree of seriousness with which the change was in fact being considered. This factor controls the materiality test: “[T]he more seriously a plan change is being considered, the more likely a misrepresentation ... will pass the threshold of materiality.” Id. Serious consideration forms the crux of the inquiry. See Kurz v. Philadelphia Elec. Co., 994 F.2d 136, 140 (3d Cir.) (“Kurz 7”) (“PECo is entitled to argue ... that the statements it allegedly made were not material because at the time those statements were made, the amendment to the plan was not under serious consideration”), cert. denied, 510 U.S. 1020, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993); Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1163-64 (6th Cir.1988) (“when serious consideration was" }, { "docid": "8560760", "title": "", "text": "F.3d 130, 148 (3d Cir.1999). Section 404(a) of ERISA, 29 U.S.C. § 1104, is the touchstone for understanding the scope and ob ject of an ERISA fiduciary’s duties. Bixler v. Central Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1299 (3d Cir.1993). The section establishes that a fiduciary shall act exclusively for the benefit of participants and “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). The Third Circuit has repeatedly held that a fiduciary in this context may not materially mislead those to whom these statutory duties of loyalty and prudence are owed. In re Unisys Sav. Plan Litig., 74 F.3d 420 (3d Cir.1996); Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 238 (3d Cir.1994); Bixler, 12 F.3d at 1300; Fischer I, 994 F.2d at 135. Thus, a plan administrator breaches its fiduciary duty under ERISA if it makes material misrepresentations to plan participants concerning employee benefits. “Put simply, when a plan administrator speaks, it must speak truthfully.” Fischer I, 994 F.2d at 135. The breadth of the fiduciary duty is not limited to a prohibition of affirmative misrepresentations, as the duty “entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful.” Bixler, 12 F.3d at 1300. Therefore, the failure to give certain relevant information regarding benefits to beneficiaries might lead to liability if the administrator fails to communicate “those material facts, known to the fiduciary but unknown to the beneficiary, which the beneficiary must know for its own protection.” Glaziers & Glassworkers Union Local No. 252 Annuity Fund v. Newbridge Sec., Inc., 93 F.3d 1171, 1182 (3d Cir.1996). The knowledge of the fiduciary may give rise to such a duty to disclose even in the absence of a specific request by the beneficiary because “absent such information, the beneficiary may have no" }, { "docid": "4458850", "title": "", "text": "See, e.g., Unisys, 57 F.3d at 1265-69 (holding that participants in an ERISA-governed plan had stated a claim for breach of fiduciary duty based on the plan administrator’s repeated assurances that plan benefits could not be terminated after their retirement); Howe, 36 F.3d at 753 (“ ‘Misleading communications to plan participants regarding plan administration will support a claim for breach of fiduciary duty.’ ”) (internal alterations omitted) (quoting Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1163 (6th Cir.1988)); Mullins v. Pfizer, Inc., 23 F.3d 663, 669 (2d Cir.1994) (holding that a plan administrator’s affirmative material misrepresentations about proposed future changes to an ERISA-governed plan are actionable as a breach of fiduciary duty under ERISA); Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300-01 (3d Cir.1993) (holding that an ERISA fiduciary’s duty to provide “complete and accurate information” to its beneficiaries “entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful”), quoted in Ervast, 346 F.3d at 1016 n. 10; Drennan v. General Motors Corp., 977 F.2d 246, 251 (6th Cir.1992) (“Misleading communications to plan participants regarding plan administration (for example, eligibility under a plan, the extent of benefits under a plan) will support a claim for a breach of fiduciary duty.”) (internal quotations omitted). As an example, the Third Circuit held in Unisys, under materially indistinguishable circumstances, that participants in an ERISA-governed plan had stated a claim for breach of fiduciary duty based on allegations that the plan administrator had given vague and incorrect answers to them concerning the terms of their plan. Unisys, 57 F.3d at 1265-67. Akin to the Appellants’ allegations in this case, the administrator in Unisys consistently misrepresented the plan over a period of years, both orally and in writing, continually representing to its employees that their medical benefits would continue in retirement for their lifetimes. Id. at 1265-66. Additionally, and also similar to the Appellants’ allegations in this case, the administrator in Unisys was aware that employees relied on these misrepresentations when planning for" }, { "docid": "8560759", "title": "", "text": "and beneficiaries” and “must be sent by a method or methods of delivery likely to result in full distribution.” 29 C.F.R: 2520.104b-1(b)(1). Materials which are distributed by the mails may be sent first, second or third-class mail, but use of second or third-class mail is only acceptable if “return and forwarding postage is guaranteed and address correction required.” (Id.). Any such material that is returned with a corrected address must be re-sent by first-class mail or personally delivered to the participant at his or her work-site. (Id.). b. Section 10k of ERISA Under ERISA, an employer that also serves as a plan administrator, like Defendants in this case, is a fiduciary that is required to “discharge its duties solely in the interests of the participants and beneficiaries.” 29 U.S.C. § 1104(a)(1); Fischer v. Phila. Elec. Co., 994 F.2d 130, 133 (3d Cir.1993) (“Fischer I”). Therefore, when a plan administrator explains plan benefits to its employees, it acts in this fiduciary capacity. Int'l Union, United Auto., Aerospace & Agr. Implement Workers v. Skinner Engine Comp., 188 F.3d 130, 148 (3d Cir.1999). Section 404(a) of ERISA, 29 U.S.C. § 1104, is the touchstone for understanding the scope and ob ject of an ERISA fiduciary’s duties. Bixler v. Central Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1299 (3d Cir.1993). The section establishes that a fiduciary shall act exclusively for the benefit of participants and “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). The Third Circuit has repeatedly held that a fiduciary in this context may not materially mislead those to whom these statutory duties of loyalty and prudence are owed. In re Unisys Sav. Plan Litig., 74 F.3d 420 (3d Cir.1996); Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 238 (3d Cir.1994); Bixler, 12 F.3d at 1300; Fischer I, 994 F.2d at 135. Thus, a plan administrator breaches its fiduciary" }, { "docid": "23147737", "title": "", "text": "8, 1994. II. Section 404(a)(1) of ERISA provides that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries....” 29 U.S.C. § 1104(a)(1). Recognizing this statutory obligation, we have held that in the exercise of these duties, the fiduciary may not materially mislead those to whom the duties of loyalty and prudence are owed. Fischer, 994 F.2d at 135; Bixler, 12 F.3d at 1300; Curcio v. John Hancock Mutual Life Insurance Co., 33 F.3d 226, 238 (3d Cir.1994). In Fischer, we held that a plan administrator may not make affirmative material misrepresentations to plan participants about changes to employee benefit plans. Fischer involved employees who retired shortly before their employer offered an early retirement plan or “retirement sweetener.” Although the company had announced that it might offer such a plan, when employees inquired about its availability, they were told by benefits counselors that “no plan was being considered.” Fischer, 994 F.2d at 132. The benefit counselors were technically telling the truth, since they had not been informed by the corporation that a retirement sweetener was under serious consideration. Nonetheless, we held that a material issue of fact existed as to whether the employer had breached its fiduciary duty to its employees by responding in a misleading fashion to their questions about the sweetener. Id. at 135. We held that, “Put simply, when a plan administrator speaks, it must speak truthfully.” Id. We affirmed this principle in Bixler in holding that a plan administrator has an affirmative duty to “speak when it knows that silence might be harmful.” There the widow of a plan participant contacted her husband’s employer while the COBRA election period was still open, to ask whether there was a death benefit to which she was entitled. We held that: If [the employer’s agent] knew that Mr. Bixler’s death left Mrs. Bixler with substantial unpaid medical expenses and that she could receive reimbursement for those expenses under the Drivers’ plan by signing and returning the COBRA notice that [he] had sent to her husband, we believe the failure" }, { "docid": "2787374", "title": "", "text": "PECo employees announcing his intent to recommend an early retirement package. Based on these findings, the district court held that PECo began seriously considering an early retirement plan on March 12, 1990. The district court entered judgment for those retirees who asked about an early retirement plan and retired alter March 12. It entered judgment for PECo on the claims of those retirees who asked about retirement and retired before that date. Both PECo and the plaintiff class appealed. The plaintiff class appeals the district court’s determination that serious consideration of the early retirement plan did not begin before March 12, 1990. PECo, on the other hand, asserts that serious consideration did not begin until after March 12,1990. II. Our analysis proceeds within the confines of Fischer 1. In that decision, we established the general rule that governs interactions between a eompany-as-fiduciary and its employee-beneficiaries regarding changes in benefits: “A plan administrator may not make affirmative material misrepresentations to plan participants about changes to an employee pension benefits plan. Put simply, when a plan administrator speaks, it must speak truthfully.” 994 F.2d at 135. This overarching duty of truthfulness forms an important part of our ERISA jurisprudence. See In re Unisys Corp. Retiree Medical Benefit “ERISA” Litig., 57 F.3d 1255, 1266-67 (3d Cir.1995), cert. denied, - U.S. -, -, 116 S.Ct. 1316, 134 L.Edüd 469, 470 (1996); Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292,1302-OS (3d Cir.1994). The rule of truthfulness that we announced in Fischer I focused on the materiality of a plan administrator’s misrepresentations. We defined materiality as a mixed question of law and fact, ultimately turning on whether “there is a substantial likelihood that [the misrepresentation] would mislead a reasonable employee in making an adequately informed decision about if and when to retire.” Id. at 135. We further explained that [¡Included within the overall materiality inquiry will be an inquiry into the seriousness with which a particular change to an employee pension plan is being considered at the time the misrepresentation is made. All else equal, the more seriously a plan change is" }, { "docid": "23091212", "title": "", "text": "v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 238 (3d Cir.1994); Bixler v. Central Pa. Teamsters Health-Welfare Fund, 12 F.3d 1292, 1300 (3d Cir.1993); Fischer v. Phila. Elec. Co., 994 F.2d 130 (3d Cir.1993). A plan administrator, like Sieber and other Freedom Forge administrators, acts as a fiduciary when explaining plan benefits and business decisions about plan benefits to its employees. See Unisys, 57 F.3d at 1261 n. 10. An employee may recover for a breach of fiduciary duty if he or she proves that an employer, acting as a fiduciary, made a material misrepresentation that would confuse a reasonable beneficiary about his or her benefits, and the beneficiary acted thereupon to his or her detriment. See id. at 1264. Having made such representations, a company cannot insulate itself from liability by including unequivocal statements retaining the right to terminate plans at any time in the SPDs. See id. Moreover, a fiduciary may not remain silent when he or she knows that a reasonable beneficiary could rely on the silence to his or her detriment. See Bixler, 12 F.3d at 1300 (“Th[e] duty to inform ... entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful.”). The facts of this case, described supra, are so much like those in Unisys, the landmark case in this area, that we need spend but little time addressing this prong of the preliminary injunction standard. In Unisys, as here, the company announced a significant change in its benefit plan scheme, after which beneficiaries were to shoulder the responsibility of paying premiums that had previously been the exclusive responsibility of the company. The Unisys plaintiffs objected, noting that their SPD included the statement that: “Coverage continues for you for life and for your dependents while they remain eligible provided you don’t stop the contributions for their coverage.” 57 F.3d at 1259 (emphasis in original). They also adduced evidence, as here, that they had been informally promised “lifetime” benefits without any reference to a reservations of rights. See id." }, { "docid": "18021052", "title": "", "text": "provide truthful information in response to employee inquiries about possible changes to an employee pension benefit plan, once those changes are under “serious consideration.” Fischer II, 96 F.3d at 1538-39. This Court now holds that the trustees of a multiemployer pension fund have that same fiduciary duty of disclosure upon “serious consideration.” As the Third Circuit noted, “[t]he concept of ‘serious consideration’ recognizes and moderates the tension between an employee’s right to information and an employer’s need to operate on a day-to-day basis.” Id. at 1539; see also 120 Cong. Rec. 29,945 (1974) (statement of Senator Long) (“We know that new pension plans will not be adopted and that existing plans will not be expanded and liberalized if the costs are made overly burdensome, particularly for employers who generally foot most of the bill”). The “serious consideration” test, therefore, serves employers’ interests by limiting their obligations to disclose and giving them the freedom to consider possible amendments to their plans. Hockett v. Sun Co., Inc., 109 F.3d 1515, 1523 (10th Cir.1997). A rule requiring earlier disclosure would risk being overly burdensome and could easily become counter-productive by discouraging employers from considering such proposals in the first place. Bins, 220 F.3d at 1049. The “serious consideration” test also protects participants and béneficiaries by ensuring that they are not deluged with information, while also guaranteeing that they receive the notification they really need in order to properly evaluate their own options with respect to retirement. Fischer II, 96 F.3d at 1539; see also Hockett, 109 F.3d at 1523. As noted above, the trustees of a mul-tiemployer pension fund have the same need to be able to freely consider changes to the pension plan. Therefore, the Court finds that the policy reasons undergirding Fisher II are equally applicable in this case. A. The “Serious Consideration” Standard “Serious consideration” of a change in ERISA plan benefits sufficient to create a fiduciary duty compelling disclosure to employees who inquire occurs when (1) a specific proposal (2) is being discussed for purposes of implementation (3) by senior management with the authority to implement that change. Fischer" }, { "docid": "18021041", "title": "", "text": "be “the focal point for the Court’s consideration.” Pltfs.’ Brief, at 4. In Bixler, the Third Circuit considered the extent to which an employer’s alleged misinformation or failure to provide relevant information constitutes an actionable breach of fiduciary duty under 29 U.S.C.A. § 1104(a). Id. at 1300. While at first blush, Bixler may appear to control here, a close reading of the case reveals that Bix-ler deals with disclosure regarding existing plan benefits, which is considered a fiduciary act of plan administration. Id. Bixler and its progeny, on which plaintiff likewise relies, are not relevant here for two reasons. First, the causes of action in those cases arose out of communications regarding existing plan benefits. See, e.g., Jordan v. Federal Express Corp., 116 F.3d 1005 (3d Cir.1997) (finding issues of fact sufficient to survive summary judgment on question of whether administrator violated its duty to disclose by providing beneficiary with an incomplete explanation of the terms and conditions of his retirement benefit election under the plan’s current terms); Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166 (3d Cir.1997) (recognizing existence, under certain circumstances, of a duty on the part of ERISA fiduciaries to inform beneficiaries about benefits for which they are eligible regardless of whether beneficiary requests such information). Plaintiffs allege here that defendant’s communications regarding proposed benefits were misleading. To rely on cases where the communications at issue went to existing benefits, therefore, is inapposite. There is an obvious difference in the duty owed by an employer or an ERISA fiduciary to its beneficiaries in communications regarding existing versus proposed plan benefits. Indeed, plaintiffs conceded as much at oral argument. See Tscpt. 16:18-17:16; 20:4-12. The following colloquys between plaintiffs’ counsel and the Court demonstrate the shaky ground on which plaintiffs stand in asserting that Bixler et al. control here: Mr. Klausner: Not, your Honor, may I respectfully suggest that the trustees, the minute they walk in the door, in the multi-employer context, lose their loyalty first to their employer. The minute they walk into the board room as a trustee of a multi-employer plan, their first and primary" }, { "docid": "18021039", "title": "", "text": "only with respect to those functions that fall within the scope of ERISA § 3(21)(A).” James F. Jorden et al., Handbook on ERISA Litigation § 3.02[C] (2d ed.1999). Amending, altering or terminating a plan, therefore, does not trigger fiduciary duties regardless of who undertakes those actions. 3. Threshold Analysis The parties disagree about the proper legal framework for deciding this case. Defendant contends that it is found in the Third Circuit opinion of Fischer v. Philadelphia Elec. Co., 96 F.3d 1533 (3d Cir. 1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997) (“Fischer II ”). Fischer II defines when and how a fiduciary duty may attach in connection with communication between an employer or plan sponsor and a beneficiary regarding possible changes in the plan’s benefits. In brief, Fischer II holds that there is no duty of disclosure until a proposed amendment is under “serious consideration,” and, even then, disclosure is only required in response to an inquiry by a beneficiary. The Court will discuss the “serious consideration” test in greater detail below. Plaintiffs, for their part, endeavor to distinguish this case from Fischer II on a number of grounds, in order, presumably, to avoid the undesirable outcome compelled by Fischer II should the Court apply it here. The Court has found no cases in this Circuit (or any other for that matter) applying the Fischer II analysis in a suit against a multiemployer Fund rather than an employer. Therefore, the Court has expended considerable thought and devoted great care to its determination of the appropriate framework for analyzing this case. The Court has considered each of plaintiffs’ arguments against applying Fischer II here, as well as some of its own. A discussion of those issues follows. • A. Fiduciary Duty of Disclosure First, plaintiffs ask the Court to look to a line of cases that addresses the duty of disclosure regarding existing plan benefits and to find the fiduciary duty established therein binding on this defendant. Specifically, plaintiffs argue that Bixler v. Central Penn. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir.1993), should" }, { "docid": "23010344", "title": "", "text": "114 S.Ct. 622, 126 L.Ed.2d 586 (1993). Thus, in Fischer, where the plaintiffs alleged that the defendant misrepresented its intention to establish a “retirement sweetener”, we held that under section 1104(a) “[a] plan administrator may not make affirmative material misrepresentations to plan participants when asked about changes to an employee pension benefits plan. Put simply, when a plan administrator speaks, it must speak truthfully.” 994 F.2d at 135. We also concluded that a misrepresentation was “material” if there was a “substantial likelihood that it would mislead a reasonable employee in making an adequately informed decision about if and when to retire.” Id. Because the content of the communications at issue and whether such communications constituted affirmative, material misrepresentations were questions of fact, we reversed the summary judgment that had been entered for the defendant and remanded the case for trial. Id. Shortly thereafter, in Bixler v. Central Pennsylvania Teamsters Health and Welfare Fund, 12 F.3d 1292 (3d Cir.1994), where the plaintiff claimed that her deceased husband’s employer had engaged in repeated misrepresentations that prevented her from electing to continue medical coverage under COBRA, we considered “to what extent a fiduciary’s alleged misinformation or failure to provide relevant information constitutes a breach of fiduciary duty under § [11]04(a).” Id. at 1300. Guided by, inter alia, section 173 of the Restatement (Second) of Trusts, we concluded that “[the] duty to inform is a constant thread in the relationship between beneficiary and trustee; it entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful.” Id. We acknowledged that “the duty recognizes the disparity of training and knowledge that potentially exists between a lay beneficiary and a trained fiduciary[ ]”, and we further concluded that “the fiduciary’s obligations will not be excused merely because [the beneficiary] failed to comprehend or ask about a technical aspect of the plan.” Id. Finding evidence from which a trier of fact could have inferred that the employer knew that the plaintiff was left with substantial unpaid medical expenses and that she could have" }, { "docid": "18021043", "title": "", "text": "loyalty is to the beneficiaries of the plan and the trust, not the employer that’s paying them to sit in the room. The Court: Can I add something to that? Mr. Klausner: Absolutely. The Court: As to existing benefits. Right? As to existing benefits. Mr. Klausner: That’s what Walling stands for. Tscrpt. 16:22-17:9. The Court: Why do you want to disavow proposed plan benefit versus existing benefits? Mr. Klausner: Because if it’s a proposal, then I will not say to you that [defendant was] obligated to advise anyone. Tscrpt. 20:4-8. Second and relatedly, the Bixler cases implicate the dichotomy discussed above that distinguishes between plan-administration-related acts and business-oriented acts. Communicating with beneficiaries regarding the terms of the plan in effect at the time of the communication clearly falls within the rubric of plan administration and is, therefore, a fiduciary act. As discussed above, amending a plan is not a fiduciary act. It is a managerial or ministerial act that does not trigger any fiduciary duty on the part of the individual or individuals considering changes to the plan. Communications regarding possible changes, therefore, should not be held to the same standard as communications regarding existing benefits. See Jorden et al., Handbook on ERISA Litigation § 3.03[C] (“A fiduciary is liable only with respect to those disclosures that relate to its role or responsibility as a fiduciary.”). B. Single-employer vs. Multiemployer Plans Plaintiffs also attempt to distinguish this case from Fischer II on another basis, namely that the Fund is a jointly managed, mültiemployer plan while the plan in Fischer II was a single-employer plan. As the reader will recall, the Court discussed the difference between the two types of plans supra. Plaintiffs argue that the policy reasons undergirding the Fischer II approach should not apply here because, “[a]s a jointly administered staff-fund, defendant is not acting as an employer, which may have business justifications for not disclosing material information to eligible participants. Rather as fiduciaries [sic], it must act solely in the interest of participants and beneficiaries for the exclusive purpose of providing benefits to participants and their beneficiaries.” Pltfs.’" }, { "docid": "10427889", "title": "", "text": "& Trust Co., 772 F.2d 951, 955 (D.C.Cir.1985) (discussing general standards for fiduciaries). Moreover, fiduciaries breach their duties if they mislead plan participants or misrepresent the terms or administration of a plan. See Anweiler v. American Elec. Power Serv. Corp., 3 F.3d 986, 991 (7th Cir.1993) (as amended). An “ERISA fiduciary has an affirmative duty to inform beneficiaries of circumstances that threaten the funding of benefits.” Acosta v. Pacific Enters., 950 F.2d 611, 619 (9th Cir.1991) (as amended). A fiduciary has an obligation to convey complete and accurate information material to the beneficiary’s circumstance, even when a beneficiary has not specifically asked for the information. See Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir.1993). In this case, not only did Ayres fail to convey complete and accurate information concerning his suspicions with the Plan’s maintenance, but he in fact misled the participants by reassuring them in writing that their funds were earning a “prime interest rate plus two percent,” and that the funds would be available upon the participants’ retirement. Ayres argues that he did not know his statements were false at the time he made them. This does not alter the fact that he had a duty to inform the participants of any and all circumstances that threatened the funding of their pensions. To the extent Ayres failed to respond to the participants’ inquiries forthrightly, his statements could be construed as affirmative misrepresentations that constituted a fiduciary breach. See Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir.), cert. denied, — U.S. —, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993). Ayres argues that the participants submitted no evidence that the certificates contained false information and that therefore the failure of the participants to receive their benefits does not, standing alone, demonstrate that the certificates were false at the time of issuance. If the information in the profit sharing certificates were true and correct at the time they were signed by Ayres, however, then it became Ayres’ duty, not the participants’, to explain what happened to those funds. See 2 McCormick" }, { "docid": "23010343", "title": "", "text": "is that Unisys misrepresented the risks associated with investing monies in the Fixed Income and Insurance Contract Funds through misleading or incomplete communications regarding the Funds’ portfolio once the Executive Life GICs had been purchased, as well as Executive Life’s financial condition in 1990. In view of the district court’s ruling that Unisys’ disclosure obligations are defined solely by section 1104(c), the threshold issue we must consider is whether the plaintiffs’ claim under section 1104(a) may continue. Looking for guidance to our cases regarding ERISA’s fiduciary duty to inform, we note that we have repeatedly held that a fiduciary may not materially mislead those to whom section 1104(a)’s duties of loyalty and prudence are owed. In re Unisys Corp. Retiree Medical Benefit “ERISA” Litigation, 57 F.3d 1255, 1261 (3d Cir.1995); Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 238 (3d Cir.1994); Bixler v. Central Pennsylvania Teamsters Health and Welfare Plan, 12 F.3d 1292, 1300 (3d Cir.1994); Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 135 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993). Thus, in Fischer, where the plaintiffs alleged that the defendant misrepresented its intention to establish a “retirement sweetener”, we held that under section 1104(a) “[a] plan administrator may not make affirmative material misrepresentations to plan participants when asked about changes to an employee pension benefits plan. Put simply, when a plan administrator speaks, it must speak truthfully.” 994 F.2d at 135. We also concluded that a misrepresentation was “material” if there was a “substantial likelihood that it would mislead a reasonable employee in making an adequately informed decision about if and when to retire.” Id. Because the content of the communications at issue and whether such communications constituted affirmative, material misrepresentations were questions of fact, we reversed the summary judgment that had been entered for the defendant and remanded the case for trial. Id. Shortly thereafter, in Bixler v. Central Pennsylvania Teamsters Health and Welfare Fund, 12 F.3d 1292 (3d Cir.1994), where the plaintiff claimed that her deceased husband’s employer had engaged in repeated misrepresentations that prevented her" }, { "docid": "22942124", "title": "", "text": "suit, even offering to pay her legal fees. It retained outside counsel to review the matter and offered his services to her without charge. It continually urged John Hancock to honor the supplemental AD & D, despite John Hancock’s refusal. Somewhere along the way Capital Health had a change of heart, for it now argues that supplemental AD & D was never offered in the first place. These events in our view are demonstrative of extraordinary circumstances. Thus, having satisfied the elements of her equitable estoppel claim and there being no reason to remand for further factual development, we conclude that Mrs. Curcio has established Capital Health’s liability to her in the amount of $150,000. Alternatively, we now briefly address Mrs. Curcio’s argument regarding breach of fiduciary duty. VI. In Fischer we held that a plan administrator may not materially misrepresent, either negligently or intentionally, modifications to an employee pension benefits plan. “Put simply, when a plan administrator speaks, it must speak truthfully.” Fischer, 994 F.2d at 135. See also Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir.1993) (discussing fiduciary’s duty not to misinform); Kurz v. Philadelphia Elec. Co., 994 F.2d 136, 139 (3d Cir.1993) (discussing the holding in Fischer). We further held in Fischer that material misrepresentations would subject a plan administrator to liability for breach of its fiduciary duty. Fischer, 994 F.2d at 133-34 (citing Payonk v. HMW Indus., Inc., 883 F.2d 221 (3d Cir.1989)). We have just found Capital Health responsible for making material misrepresentations for purposes of an equitable theory of relief. It is thus a short step to conclude that Capital Health breached its fiduciary duty. Our analysis rests on the notion that a fiduciary is required to “discharge [its] duties with respect to a plan solely in the interest of the participants and beneficiaries.” 29 U.S.C. § 1104(a)(1). See Fischer, 994 F.2d at 133. Clearly Capital Health did not do so. Therefore, we hold that Mrs. Curcio’s alternate argument provides additional support for our conclusion that Capital Health is liable to Mrs. Curcio for the $150,000 in" }, { "docid": "23147734", "title": "", "text": "[as opposed to active employees], Sperry and later Unisys, had a fiduciary duty to make this point clear.” (A 2284). The district court observed: This is not a case where one or two low level benefits counselors told a few retirees that their benefits would continue for life. The message that medical benefits would last for life was confirmed repeatedly and systematically throughout the Sperry organization, by all levels of management, in writing and verbally. In fact, as the Findings make clear, several high level corporate executives, as well as personnel managers, testified that they believed the [reservation of rights clause] was inapplicable to retirees and counseled individuals accordingly. (A 2284). Although the district court also observed that the summary plan description is the controlling document upon which plan participants must rely and that informal communications cannot alter the terms of a written plan, the court discerned “a strong current in the Third Circuit that recognizes that an ERISA fiduciary may not ‘affirmatively mislead’ plan participants.” Id. (citing Bixler, 12 F.3d 1292, and Fischer v. Phila. Elec. Co., 994 F.2d 130 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993)). Unisys argued that Bixler, supra, and Fischer, supra, were inapposite in a situation where the summary plan description itself informs the participants of the answer to their inquiry regarding benefits. After reviewing Fischer and Bixler, the district court concluded that the evidence supported a breach of fiduciary duty claim. The court stated, “First, it is clear that the highest levels of corporate management at Sperry, and later Unisys, recognized that employees might be under the mistaken belief that ‘lifetime’ meant forever.” The evidence suggested to the court that “by the mid-1980’s, defendant understood the potential for confusion concerning the meaning of ‘lifetime benefits.’ ” The court further observed that the “Defendant then exacerbated this potential [for confusion] with numerous informal communications that discussed lifetime benefits without explicit reference to the [reservation of rights clause].” (A 2289). The court found that the retirees had presented credible testimony that some individuals specifically asked if their benefits would" }, { "docid": "23147736", "title": "", "text": "continue for life and were told they would, without any mention of the reservation of rights clause. (A 2290). When faced with a specific inquiry as to the explanation of benefits, the district court held that “an employer cannot give vague or incorrect answers, especially on a repeated and pervasive basis.” Id. Because the breach of fiduciary duty claim was not directly before the court at trial, it did not hold that a breach in fact occurred. In granting reconsideration of this issue though, the district court concluded that “based on the evidence and the law in this circuit, it seems possible that at least some plaintiffs will be able to sustain a breach of fiduciary duty claim.” (A 2291). Given the complexity of the legal question involved and its uncertainty of the contours of Bixler, the district court certified its decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On July 22, 1994, Unisys filed a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b). We granted Unisys’ petition on August 8, 1994. II. Section 404(a)(1) of ERISA provides that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries....” 29 U.S.C. § 1104(a)(1). Recognizing this statutory obligation, we have held that in the exercise of these duties, the fiduciary may not materially mislead those to whom the duties of loyalty and prudence are owed. Fischer, 994 F.2d at 135; Bixler, 12 F.3d at 1300; Curcio v. John Hancock Mutual Life Insurance Co., 33 F.3d 226, 238 (3d Cir.1994). In Fischer, we held that a plan administrator may not make affirmative material misrepresentations to plan participants about changes to employee benefit plans. Fischer involved employees who retired shortly before their employer offered an early retirement plan or “retirement sweetener.” Although the company had announced that it might offer such a plan, when employees inquired about its availability, they were told by benefits counselors that “no plan was being considered.” Fischer, 994 F.2d at 132. The benefit counselors were technically telling the truth, since they had not" } ]

[ { "docid": "21532283", "title": "", "text": "price alone, unless the inadequacy is so great as to shock the conscience of the chancellor, inadequacy of price, accompanied with other circumstances having a tendency to cause such inadequacy, or indicating any apparent unfairness or impropriety, will justify setting aside the sale. Such additional circumstances may be slight and insufficient in themselves to justify vacating the sale. It has been held that the right of a trustee in bankruptcy to set aside a conveyance made in fraud of creditors vests in the trustee for the benefit of the creditors and is not assignable. Here, the two sons were parties to the fraudulent transfer from the bankrupt. The price bid by them at the sale was inadequate. Under the authorities, there is grave doubt that the trustee could sell his right to set aside the fraudulent conveyance. No person other than the two sons could safely bid at the sale. There were no other bids. The sale was wholly illusory. The action of the trustee in petitioning for leave to make the sale and the order of the referee directing the sale were clearly improvident and worked a legal fraud on the creditors. Under all the circumstances, we think’the order of the referee setting aside the sale and the order of the trial court confirming his action were clearly right. The judgment is affirmed. Sandusky v. First National Bank, 23 Wall. 289, 90 U.S. 289, 292, 293, 23 L.Ed. 155; In re Windsor Square Development, 9 Cir., 91 F.2d 493, 495, 496 ; In re Glory Bottling Co. of New York, 2 Cir., 283 F. 110, 111. In re Receivership of First Trust & Savings Bank, 45 Mont. 89, 122 P. 561, 565; Weeks v. Cornwell, 106 N.Y. 626, 13 N.E. 96, 99; Horse Springs Cattle Co. v. Schofield, 9 N.M. 136, 49 P. 954, 956. Magnes v. Tobias, 337 Ill. 605, 169 N.E. 741, 743; Kentucky Joint Land Bank v. Fitzpatrick, 237 Ky. 624, 36 S.W.2d 25, 26; Northern Investment Corp. v. Coppock, 134 Fla. 168, 183 So. 635, 636; In re Downham Company, 5 W.W. Harr., Del., 294," } ]

[ { "docid": "5961434", "title": "", "text": "v. Iserson, D.C., 294 F. 289; Ellis v. Peak, D.C., 22 F.Supp. 908; Flas v. Illinois Central R.R. Co., D.C., 229 F. 319; Gillette Safety Razor Co. v. Chaffee-Shippers Service, Inc., D.C., 10 F.Supp. 898; Givens v. Wight, D.C.N.D.Tex., 247 F. 233; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 3055; Habermel v. Mang, 6 Cir., 31 F.2d 822, 67 A.L.R. 216; Hill v. Upper Mississippi Towing Corp., D.C., 141 F.Supp. 692; Hourcle v. Air France, 52 A.M.C. 1737, 1738; Jacobson v. Chicago, M., St. P. & P. R. Co., 8 Cir., 66 F.2d 688, 693; President and Directors of Manhattan Co. v. Monogram Associates, Ine., D.C., 81 F.Supp. 739; Strother v. Union Pacific R.R., D.C., 220 F. 731. . Bacon v. Felt, C.C.Iowa, 38 F. 870; Corrao v. Waterman Steamship Corp., D.C.E.D.N.Y.1948, 75 F.Supp. 482; Glens Falls Indemnity Co. v. Atlantic Building Corporation, 4 Cir., 1952, 199 F.2d 60; Greenleaf v. Huntingdon & B. T. M. R. & Coal Co., D.C., 3 F.R.D. 24; Jeub v. B/G Foods, Inc., D.C.Minn., 2 F.R.D. 238; Kratke v. Denver & R. G. W. R. Co., D.C., 15 F.R.D. 4; Kirby v. American Soda Fountain Co., 194 U.S. 141, 24 S.Ct. 619, 48 L.Ed. 911; The Lizzy M. Walker, 4 Cir., 3 F.2d 921; Lundberg v. Prudential Steamship Corporation (Triangle Ship Maintenance), Inc., D.C., 102 F.Supp. 115; O’Neill v. American Export Lines, D.C.S.D.N.Y.1946, 5 F.R.D. 182; Rappa v. Pittston Stevedoring Co., D.C., 48 F.Supp. 911; Summers & Oppenheim, Inc. v. Tillinghost Stiles Co., D.C.N.Y., 19 F.Supp. 230; Tevingtou v. International Milling Co., D.C., 71 F.Supp. 621; Thomas v. Malco Refineries, Inc., 10 Cir., 214 F.2d 881; Thompson v. American Export Lines, Inc., D.C.S.D.N.Y.1953, 15 F.R.D. 125; Trauffler v. Detroit & Cleveland Navigation Co., D.C., 383 F. 256; Tri-Cities Shell & Bldg. Material Supply Co,, Inc., v. Welch, D.C., 93 F.Supp. 944; Wheeler v. Glazier, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301. . His allegations also with reference to that matter are as follows: “Defendant is a corporation, organized and existing under and by virtue of law," }, { "docid": "2471234", "title": "", "text": "opinion, it is hereby ORDERED that the Citizens Fidelity Bank and Trust Company return to the debtor’s estate the prebankruptcy deposit of $6,175.54. IT IS FURTHER ORDERED that the bank be permitted to retain the account proceeds in its possession. This is a final order. Judgment shall be entered accordingly. . Why the financing statement was not filed until three and one-half months after the note and security agreement were executed is not clear, but the delay in filing has no effect on the validity of the bank’s security interest vis-a-vis the trustee. . 4 Collier on Bankruptcy, ¶ 547.15, at 547-50 (15th Ed. 1979). . Dogget v. Chelsea Trust Co., 73 F.2d 614 (1st Cir. 1934); Blue v. Herkimer Nat. Bank, 37 F.2d 663 (2nd Cir. 1930), cert. denied 281 U.S. 750, 50 S.Ct. 354, 74 L.Ed. 1162. . Toof v. City National Bank, 206 F. 250 (6th Cir. 1913); Citizens’ Union National Bank v. Johnson, 286 F. 527 (6th Cir. 1923); In re Merchandise Mart of Columbia, 79 F.Supp. 686 (E.D.S.C.1948); In re Susquehanna Chemical Corp., 81 F.Supp. 1 (W.D.Pa.1948), aff'd, 174 F.2d 783 (3rd Cir. 1949); 4 Collier on Bankruptcy, ¶ 553.15[4], at 553-70 (15th Ed. 1979). . Id. Toof and Citizens’ Union National Bank. . In re Michaelis & Lindeman, 196 F. 718 (D.C.N.Y.1912); In re Susquehanna Chemical Corp., supra note 4. . 11 U.S.C. § 541(a) and § 542(b). . See New York County National Bank v. Massey, 192 U.S. 138, 24 S.Ct. 199, 48 L.Ed. 380 (1904) and First National Bank of Clinton v. Julian, 383 F.2d 329 (8th Cir. 1967). . Id. . 41 Pa.Super. 497 (1910). . 56 F.2d 534 (5th Cir. 1932). . Id. at 537. . Id. . 11 Am.B.R. (N.S.) 311 (N.D.Ohio 1928), quoted in 4 Collier on Bankruptcy, ¶ 553.15[4] at 553-70 n. 33 (15th Ed. 1979). . Id. . American Sugar Refining Co. v. Anderson, 20 F.Supp. 55 (W.D.Ky.1937), aff'd, 107 F.2d 948 (6th Cir.). . Keyes v. Paducah & I. R. Co., 61 F.2d 611, 614 (6th Cir. 1932). . Jennings v. USF&G Co., 294 U.S." }, { "docid": "3000955", "title": "", "text": "It was an enforcement device and not a perfecting device that the Searles employed. We conclude that the equitable lien acquired by the Searles was not contrary to the declared policy of the 1950 amendment, as set forth in the first sentence of sub. a (6) thereof. And, moreover, under the provisions of sub. a (8) of the 1950 amendment, the transfer for security by virtue of the equitable lien must be deemed to have been made on August 13, 1952, when the equitable lien came into being. Accordingly, we conclude that the lien and the delivery of the merchandise in satisfaction thereof did not constitute a preferential transfer. The judgment is affirmed. . Olsen v. Kidman, Utah, 235 P.2d 510; Walker v. Brown, 165 U.S. 654, 664, 17 S.Ct. 453, 41 L.Ed. 865; Union Trust Co. of Maryland v. Townshend, 4 Cir., 101 F.2d 903, certiorari denied 307 U.S. 646, 59 S.Ct. 1044, 83 L.Ed. 1526; Haas v. Rendleman, 4 Cir., 62 F.2d 701, certiorari denied 289 U.S. 750, 53 S.Ct. 695, 77 LEd. 1495; Geddes v. Reeves Coal & Dock Co., 8 Cir., 20 F.2d 48, 54 A.L.R. 282, certiorari denied 275 U.S. 556, 48 S.Ct. 117, 72 L.Ed. 424; Pierce v. National Bank of Commerce, 8 Cir., 268 F. 487, 494; Hutson v. Long Bell Lumber Co., D.C.Mo., 1 F.Supp. 468, affirmed Carson v. Long-Bell Lumber Corp., 8 Cir., 73 F.2d 397, certiorari denied 294 U.S. 707, 55 S.Ct. 352, 79 L. Ed. 1242, rehearing denied 294 U.S. 731, 55 S.Ct. 506, 79 L.Ed. 1261. . Hurley v. Atchison, Topeka & Santa Fe R. Co., 213 U.S. 126, 133, 29 S.Ct. 466, 53 L.Ed. 729; Merchants’ & Mechanics’ Bank of Columbus v. Sewell, 5 Cir., 61 F.2d 814. . Hurley v. Atchison, Topeka & Santa Fe R. Co., 213 U.S. 126, 29 S.Ct. 466, 53 L.Ed. 729; Lockhart v. Garden City Bank & Trust Co., 2 Cir., 116 F.2d 658; Wilson v. Duncan, 5 Cir., 61 F.2d 515; Tatum v. Acadian Production Corp. of Louisiana, D.C., 35 F.Supp. 40. . Seymour v. Wildgen, 10 Cir., 137 F.2d" }, { "docid": "7054697", "title": "", "text": "involved, legislation should receive a construction which permits both to function with a minimum of interference each with the other. Metcalf & Eddy v. Mitchell, 1926, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384. Affirmed. . Title 11 U.S.C.A. § 701 et seq. . California Revenue and Taxation Code, § 6001 et seq. . Consult California State Board of Equalization v. Goggin, 9 Cir., 1950, 183 F.2d 489, certiorari denied 340 U.S. 891, 71 S.Ct. 207. . California Revenue and Taxation Code, § 6051. . California Revenue and Taxation Code, § 6015, as amended by Cal.Stats., 1943, e. 699, § 3, p. 2455, c. 822, § 1, p. 2620. See later amendment Cal.Stats.1949, c. 728, § 1.5. . Cal.Stats.1945, ch. 926, § 1. . “Any receiver, liquidator, referee, trustee, or other officers or agents appointed by any United States court who is authorized by said court to conduct any business, or who does conduct any business, shall, from and after the enactment of this Act, be subject to all State and local taxes applicable to such business the same as if such business were conducted by an individual or corporation * * Act of June 18, 1934, c. 585, 48 Stat. 993. See new Title 28 U.S.C.A. § 960, Act of June 25, 1948, c. 646, 62 Stat. 927. . Title 28 U.S.C.1940 ed. § 124a, see footnote 7, supra. JAMES ALGER FEE, District Judge, (concurring). The power of 'Congress to pass uniform laws in relation to bankruptcies is paramount. International Shoe Co. v. Pinkus, 278 U.S. 261, 263, 49 S.Ct. 108, 73 L.Ed. 318; U. S. Constitution, Art. I, § 8, cl. 4. The statutes so enacted emphasize the necessity of liquidation in order to make distribution of assets. Congress has given the Bankruptcy Court plenary powers to that end. 11 U.S.C.A. §§ 11, 66; Continental Illinois, National Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 675, et seq., 55 SCt. 595, 79 L.Ed. 1110. Acting under these powers, the referee ordered a liquidating sale of certain trucks. A tax on" }, { "docid": "8347723", "title": "", "text": "inception of the proceedings. In re Borgelt (C.C.A.7th) 79 F.(2d) 929, November 23, 1935; In re Hilliker (D.C.) 9 F.Supp. 948; In re Samuelson (D.C.) 8 F. Supp, 473. It follows that the court is not authorized to grant the 3-year extension unless it is made to reasonably appear 'that the lien creditor will not suffer any substantial loss in the value of his security by reason of the delay. The original purpose of Acts of Bankruptcy was to bring about a prompt, equal disposition of the debtor’s property among his creditors, and to relieve the debtor of obligations and responsibilities following a business misfortune, and to permit him to start afresh. However, with the change in the condition of the relationship of debtors and creditors, the scope of original acts has been extended to persons, properties, and different debtor contracts. Bankruptcy was thought to be of such importance when the Constitution was drafted as to authorize the Congress to legislate on the subject; the only restriction being that its laws were to be uniform throughout the Union. Louisville Joint Stock Land Bank v. Radford, supra; Hanover National Bank v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113. Section 77 of the Bankruptcy Act (see 11 U.S.C.A. § 205), providing for railroad reorganization, invades the rights of creditors to a much greater-extent than does the act here in question. The Supreme Court sustained that act in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110, and section 77B (see 11 U.S. C.A. § 207), providing for corporate reorganization, invades the rights of creditors more drastically than the act here. That section has been sustained as constitutional. In re Sterba (C.C.A.) 74 F.(2d) 413; In re New Rochelle Coal & Lumber Co. (C.C.A.) 77 F.(2d) 881; Grand Boulevard Investment Company v. Strauss (C.C.A.) 78 F.(2d) 180. It may be' said that the long period of recognized equity receiverships applicable to both railroads and corporations which postponed the payment of debts of such corporations distinguishes" }, { "docid": "8705699", "title": "", "text": "principle is often applied in judicial sales that a. sale will not be set aside unless there is a bona fide offer of a substantially higher price. Although the District Judge extended time in the apparent hope that one-would be so obtained, no such situation, developed. Appellant assigns as error that, the District Judge did not grant another such continuance. But it is apparent that the District Judge thought advantage was. taken of his leniency. There were indications this was true. Under the circumstances, the District: Judge became suspicious, with apparent-cause, of the whole situation. His avoidance of the sale was proper and is affirmed. However, we do not indicate thereby that the District Judge is to be hampered in the exercise of his discretion. The appellant has caused delay by this proceeding and the circumstances may have entirely changed. The cause is remanded with full discretion of the District Court to hold appellant to its bid or to modify the order here affirmed or to take such other action in the premises as will protect all the interests involved upon appropriate notice. There was no appeal from the provision of the order which vacated the direction of the referee to pay commission to a broker, Joseph Sattler The position taken by the learned District Judge was unquestionably correct, but the matter is not before us for decision. Order affirmed. 11 U.S.C.A. § 67, sub. c. Webster v. Barnes Banking Co., 10 Cir., 113 F.2d 1003, 1005. In re Realty Foundation, Inc., 2 Cir., 75 F.2d 286; In re Klein’s Rapid Shoe Repair Co., Inc., 2 Cir., 54 F.2d 495. In re Burr Mfg. & Supply Co., 2 Cir., 217 F. 16; See also Sturgiss v. Corbin, 4 In re Wolke Lead Batteries Co., 6 Cir., 294 F. 509, 511. Prentice v. Boteler, 9 Cir., 141 F.2d, 175. Currin v. Nourse, 8 Cir., 66 F.2d 137;. Id., 8 Cir., 74 F.2d 273." }, { "docid": "7678467", "title": "", "text": "Drainage District v. Baxter State Bank, 308 U.S. 371, 376-377, 60 S.Ct. 317, 84 L.Ed. 329; McWilliams v. Blackard, 8 Cir., 96 F.2d 43, 45, 46. If they were irrevocable, it was not because of the expiration of the time to appeal, Sandusky v. First National Bank, 90 U.S. 289, 292-293, 23 Wall. 289, 23 L.Ed. 155; Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 135-138, 57 S.Ct. 382, 81 L.Ed. 557; In re Windson Square Development, Inc., 9 Cir., 91 F.2d 493, 496; Webster v. Barnes Banking Co., 10 Cir., 113 F.2d 1003, 1005, but because of the changed circumstances. Stensrud v. Federal Land Bank, 8 Cir., 114 F.2d 1002, 1003, 1004; Union Joint Stock Land Bank v. Byerly, 310 U.S. 1, 8-11, 60 S.Ct. 773, 84 L.Ed. 1041; Reber v. Home Owners’ Loan Corp., 8 Cir., 96 F.2d 77, 78, 79. When the orders of dismissal were entered, the court below had complete jurisdiction of the parties and of the subject matter. The orders stood unchallenged from November 23, 1938, to March 4, 1940. During that period, in reliance upon them, the' deeds of trust were foreclosed. The debtors did not save any equity of redemption. See § 3064, R.S.Mo.1929, Mo.St.Ann. § 3064, p. 1894, and State v. Bird, 232 Mo.App. 652, 110 S.W.2d 386, 387. The holders of the deeds of trust acquired title to the lands. The powers of sale contained in the deeds were exhausted. Schanawerk v. Hobrecht, 117 Mo. 22, 30, 22 S.W. 949, 951, 38 Am.St.Rep. 631; McClung v. Missouri Trust Co., 137 Mo. 106, 117, 38 S.W. 578, 581; and the debtors, under the laws of Missouri, were completely divested of all right, title and interest in the lands. The rule is that an erroneous order made during the progress of a bankruptcy proceeding, although not appealed from, may subsequently be set aside and vacated unless rights have become vested in reliance upon it which will be disturbed by its vacation. Sandusky v. First National Bank, 90 U.S. 289, 292-293, 23 Wall. 289, 23 L.Ed. 155; Wayne United Gas" }, { "docid": "6718471", "title": "", "text": "Cir., 1911, 188 F. 207; In re Hershberger, D.C.Pa.1913, 208 F. 94; Kagan v. Industrial Washing Machine Corp., 1 Cir., 1950, 182 F.2d 139, 146; Eddy v. Prudence Bonds Corp., 2 Cir., 1947, 165 F.2d 157, 160, certiorari denied, Prudence Realization Corp. v. Eddy, 333 U.S. 845, 68 S.Ct. 664, 92 L.Ed. 1128; In re Gotham Can Co., 2 Cir., 1931, 48 F.2d 540; Sehon-Stevenson & Co. v. Union Trust Co., 4 Cir., 1940, 113 F.2d 968; Oppenheimer v. Oldham, 5 Cir., 1949, 178 F.2d 386, 389; In re Macomb Trailer Coach, Inc., 6 Cir., 1952, 200 F.2d 611; In re Chicago, R. I. & P. Ry. Co., 7 Cir., 1946, 155 F.2d 889; Wilson v. Dewey, 8 Cir., 1943, 133 F.2d 962; United States v. Sampsell, 9 Cir., 1946, 153 F.2d 731; Board of Com’rs of Sweetwaters County, Wyo. v. Bernardin, 10 Cir., 1934, 74 F.2d 809; In re Worden, D.C.W.D.Ky.1952, 107 F.Supp. 496. Compare Vol. 3 Collier on Bankruptcy, page 1840 (14th Ed.); Remington Bankruptcy, Vol. 2, page 434 (4th Ed.); and Note 134 A.L.R. 847. . Kagan v. Industrial Washing Machine Corp., supra; Eddy v. Prudence Bonds Corp., 2 Cir., 1948, L. Hand, supra; Sehon-Stevenson & Oo. v. Union Trust Co., supra; Oppenheimer v. Oldham, supra; In re Macomb Trailer Coach, Inc., supra; In re Chicago, R. I. & P. Ry. Co., supra; Wilson v. Dewey, supra; United States v. Sampsell, supra; Board of Com’rs of Sweetwaters County, Wyo. v. Bernardin, supra. . United States v. Sampsell, supra; In re Hershberger, supra; In re Torchia, supra; See also Ticonic Nat. Bank v. Sprague, supra; Oppenheimer v. Oldham, supra; In re Chicago, R. I. & P. Ry. Co., supra; Wilson v. Dewey, supra; San Antonio Loan & Trust Co. v. Booth, 5 Cir., 1924, 2 F.2d 590; Sehon-Stevenson & Co. v. Union Trust Co., supra." }, { "docid": "9916563", "title": "", "text": "Commission may modify any plan which it has approved; and in ■Chicago, R. I. & P. R. Co. v. Fleming, it was held that the court must approve or disapprove the plan in its entirety; that it .alone cannot correct the plan, but may suggest improvements to the Commission. We think the judgment appealed from should be reversed, the injunction dissolved, and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.' Reversed. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433; Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pac. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110; Meyer v. Fleming, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595; In re Retail Stores Delivery Corporation, D.C., 5 F.Supp. 892; In re Straus & Co., Inc., D.C., 6 F.Supp. 547; 11 U.S.C.A. §§ 11 and 46. 11 U.S.C.A. § 205, sub. e(6). Meyer v. Fleming, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595, cited in Gardner v. New Jersey, 329 U.S. 565, 67 S.Ct. 364. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077; Central New England R. Co. v. B. & A. R. Co., 279 U.S. 415, 49 S.Ct. 358, 73 L.Ed. 770; Mandeville v. Canterbury, 318 U.S. 47, 49, 63 S.Ct. 472, 473, 87 L.Ed. 605. In re Worrall, 2 Cir., 79 F.2d 88; In re Marsters, 7 Cir., 191 F.2d 865. Harrison, Trustee, v. Chamberlin, 271 U.S. 191, 46 S.Ct. 467, 79 L.Ed. 897. Compare In re New York, New Haven & Hartford R. Co., 2 Cir., 147 F.2d 40. The Central of Georgia here corresponds to New Haven in that case; South-Western corresponds to the Terminal Company. Palmer v. Massachusetts, 308 U.S. 79, 87, 60 S.Ct. 34, 84 L.Ed. 93, quoted in Smith v. Hoboken R. Co., 328 U.S. 123, 132, 66 S.Ct. 947, 90 L.Ed. 1123, 168 A.L.R. 497; Warren v. Palmer. 310 U.S. 132, 137, 138, 60 S.Ct. 865, 84 L.Ed. 1118. 49 TJ.S.C.A. § 5(11). 11 TJ.S.C.A. §" }, { "docid": "9916562", "title": "", "text": "the plan, shall have full power to put it into effect; and shall do so: the laws of any state to the contrary notwithstanding. Evidently there must be a real or substantial conflict between the plan and any state law before the latter may be disregarded. The execution of the plan is “subject to the supervision and control of the judge,” Sec. 205, sub.f, supra; and this ought to be assurance enough that state authority will be overridden only to the extent necessary to make the plan effective. We have been cited to no provision in the plan that conflicts with any law of Georgia. For the bankruptcy court to hold that a majority vote of the stockholders of South-Western would be sufficient, regardless of state law, would amount to amending the plan in the face of the statute which provides that no plan shall be approved or confirmed by the judge “unless the plan shall first have been approved by the Commission and certified to the court.” The just-cited statute expressly .provides that the Commission may modify any plan which it has approved; and in ■Chicago, R. I. & P. R. Co. v. Fleming, it was held that the court must approve or disapprove the plan in its entirety; that it .alone cannot correct the plan, but may suggest improvements to the Commission. We think the judgment appealed from should be reversed, the injunction dissolved, and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.' Reversed. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433; Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pac. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110; Meyer v. Fleming, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595; In re Retail Stores Delivery Corporation, D.C., 5 F.Supp. 892; In re Straus & Co., Inc., D.C., 6 F.Supp. 547; 11 U.S.C.A. §§ 11 and 46. 11 U.S.C.A. § 205, sub. e(6). Meyer v. Fleming, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595, cited in Gardner v. New" }, { "docid": "3000956", "title": "", "text": "1495; Geddes v. Reeves Coal & Dock Co., 8 Cir., 20 F.2d 48, 54 A.L.R. 282, certiorari denied 275 U.S. 556, 48 S.Ct. 117, 72 L.Ed. 424; Pierce v. National Bank of Commerce, 8 Cir., 268 F. 487, 494; Hutson v. Long Bell Lumber Co., D.C.Mo., 1 F.Supp. 468, affirmed Carson v. Long-Bell Lumber Corp., 8 Cir., 73 F.2d 397, certiorari denied 294 U.S. 707, 55 S.Ct. 352, 79 L. Ed. 1242, rehearing denied 294 U.S. 731, 55 S.Ct. 506, 79 L.Ed. 1261. . Hurley v. Atchison, Topeka & Santa Fe R. Co., 213 U.S. 126, 133, 29 S.Ct. 466, 53 L.Ed. 729; Merchants’ & Mechanics’ Bank of Columbus v. Sewell, 5 Cir., 61 F.2d 814. . Hurley v. Atchison, Topeka & Santa Fe R. Co., 213 U.S. 126, 29 S.Ct. 466, 53 L.Ed. 729; Lockhart v. Garden City Bank & Trust Co., 2 Cir., 116 F.2d 658; Wilson v. Duncan, 5 Cir., 61 F.2d 515; Tatum v. Acadian Production Corp. of Louisiana, D.C., 35 F.Supp. 40. . Seymour v. Wildgen, 10 Cir., 137 F.2d 160; City of New Orleans v. Harrell, 5 Cir., 134 F.2d 399; Ingels v. Boteler, 9 Cir., 100 F.2d 915, affirmed 308 U.S. 57, 521, 60 S.Ct. 29, 84 L.Ed. 78; In re Knox-Powell-Stockton Co., 9 Cir., 100 F.2d 979. . Pennsylvania Co. for Insurance on Lives and Granting Annuities v. United Railways of Havana & Regia Warehouses, D.C., 26 F.Supp. 379; Matsuda v. Noble, 184 Or. 686, 200 P.2d 962; Anderson Buick Co. v. Cook, 7 Wash.2d 632, 110 P.2d 857; Veatch’s Adm’r v. Loverett, 265 Ky. 532, 97 S.W.2d 47; Warren Guarantee Title & Mortgage Co. v. Williams, 27 Ohio App. 505, 161 N.E. 551; Mercantile Ins. Co. of America v. Jackson, 40 Wash.2d 233, 242 P.2d 503; Sloss v. Glaze, 231 Ala. 234, 164 So. 51; Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709; Clatworthy v. Ferguson, 72 Colo. 259, 210 P. 693; Union Nat. Bank of Wilmington v. Topkis Bros. Co., 23 Del.Ch. 59, 2 A.2d 148; Barber v. Beckett, 251 Ala. 569, 39 So.2d 17; Martens v. Martens, 234" }, { "docid": "17771290", "title": "", "text": "price” rule is applicable here, Commodity suffered no injury as a result of the market price applied by the referee. The cause is remanded, with instructions to modify the order allowing the claim of Commodity in accordance with the views herein expressed. . Hereinafter called the Grain Company. . Hereinafter called Commodity. . In re Wright-Dana Hardware Co., 2 Cir., 211 F. 908, 911; 11 U.S.C.A. § 110. . Central States Corp. v. Luther, 10 Cir., 215 F.2d 38, 45, and cases cited in Note 10, infra. . 11 U.S.C.A. § 96, sub. a; 8 C.J.S., Bankruptcy, § 193a, p. 650. . See, however, Inter-State National Bank of Kansas City v. Luther, 10 Cir., 221 F.2d 382; and Central States Corp. v. Luther, 10 Cir., 215 F.2d 38. . In its claim Commodity expressly alleged that the title to the stored milo and wheat, which came into the possession of the trustee, had never passed to the Grain Company and did not pass to the trustee; that neither the Grain Company nor the trustee had any title, legal or equitable, to such milo and wheat, but were merely bailees thereof; and that if the trustee had sold or otherwise disposed of such milo and wheat, the proceeds of such sales were the property of and should be paid to Commodity. . James Talcott, Inc., v. Glavin, 3 Cir., 104 F.2d 851, 853, certiorari denied 308 U.S. 598, 60 S.Ct. 130, 84 L.Ed. 501; Page v. Arkansas Natural Gas Corporation, 8 Cir., 53 F.2d 27, 35, affirmed 286 U.S. 269, 52 S.Ct. 507, 76 L.Ed. 1096; Remington on Bankruptcy, 5 Ed. (Henderson), Vol. 5, § 2200. . Central States Corp. v. Luther, 10 Cir., 215 F.2d 38, 45, and cases cited in note 10. . Goodman v. Northcutt, 14 Or. 529, 13 P. 485; Dole v. Olmstead, 36 Ill. 150, 155-156. . Norton v. Agricultural Bond & Credit Corporation, 10 Cir., 92 F.2d 348, 351, 352, certiorari denied 302 U.S. 763, 58 S.Ct. 409, 82 L.Ed. 592; Commercial Standard Ins. Co. v. Remer, 10 Cir., 119 F.2d 66, 70. . In" }, { "docid": "11959020", "title": "", "text": "as beneficial and assented to by the requisite majority of the creditors. [Citing cases.] In no case of composition is a secured claim affected except when the holder is a member of a class; and then only when the composition is desired by the requisite majority and is approved by the court. Never, so far as appears, has any composition affected a secured claim held by a single creditor. Compositions are comparable to the voluntary adjustment with the mortgagee provided for in paragraph 3 of the FrazierLemke amendment (11 U.S.C.A. § 203(s) (3). They are not analogous to the so-called adjustment compelled by paragraph 7, (11 U.S.C.A. § 203(s)(7).” This view of compositions is foreshadowed by the opinion of the same court in Continental Illinois Nat. Bank v. Chicago, Rock Island & P. Railway Company, 294 U.S. 648, 673, 674, 55 S.Ct. 595, 605, 79 L.Ed. 1110, construing and upholding Section 77 of the Bankruptcy Act, added by the Act of March 3, 1933, 11 U.S.C.A. § 205: “The confirmation and legalization of ‘a scheme of arrangement’ under such circumstances is no more than is done in bankruptcy when a ‘composition’ agreement with the bankrupt debtor, if assented to by the required majority of creditors, is made binding on the non-assenting minority. In no just sense do such governmental regulations deprive a person of his property without due process of law. * * Every member of a political community must necessarily part with some of the rights which, as an individual, not affected by his relation to others, he might have retained”. Compare Kansas City Terminal Railway Co. v. Central Union Trust Co., 271 U.S. 445, 46 S.Ct. 549, 70 L.Ed. 1028; Head v. Amoskeag Manufacturing Co., 113 U.S. 9, 21, 5 S.Ct. 441, 28 L.Ed. 889; Horn v. Ross Island Sand & Gravel Co., 9 Cir., 88 F.2d 64, 66, and In re 333 North Michigan Avenue Building Corporation, 7 Cir., 84 F.2d 936, 940. See also, In re Los Angeles Lumber Products Company, Ltd., D.C., 24 F.Supp. 501, affirmed by the Circuit Court of Appeals for the Ninth" }, { "docid": "1768859", "title": "", "text": "at 11 U.S.C. § 30 (repealed). See G. Glenn, supra note 9, at § 376. . See Meyers v. International Trust Co., 273 U.S. 380, 383, 47 S.Ct. 372, 374, 71 L.Ed. 692 (1926); In re Leight & Co., 139 F.2d 313, 315 (7th Cir.1943); In re Goldberg, 97 F.Supp. 75, 76 (S.D.N.Y.1951). See generally PROTECTIVE COMMITTEE REPORT, supra note 7, at 72-74. . Gerdes, General Principles of Plans of Corporate Reorganization, 89 U.Pa.L.Rev. 39, 43-44 (1940). See generally G. Glenn, supra note 9, at §§ 376-386. . G. Glenn, supra note 9, at § 378. See Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. 447, 452-53, 35 S.Ct. 636, 438, 59 L.Ed. 1042 (1915). . See Matter of Kinnane Co., 221 F. 762, 766 (D.Ohio 1915); Matter of Goldstein, 213 F. 115, 116 (D.Conn.1914); In re Frear, 120 F. 978, 980-81 (N.D.N.Y.1903); In re Rider, 96 F. 808, 809 (N.D.N.Y.1899). . Trost, Business Reorganization Under Chapter 11 of the Bankruptcy Code, 34 Bus.Law 1309, 1328 (1979). . See Continental Illinois National Bank & Trust Co. v. Chicago R.I. & P.R. Co., 294 U.S. 648, 675, 55 S.Ct. 595, 605-04, 79 L.Ed. 1110 (1935); Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. at 447, 35 S.Ct. at 636. . PROTECTIVE COMMITTEE REPORT, supra note 7, at 74. . Act of March 3, 1933, Pub.L. No. 72-420, 47 Stat. 1467, ch. 204, codified at 11 U.S.C. § 202. . Act of June 22, 1938, Pub.L. No. 75-696, 52 Stat. 840, ch. 575 (Preamble). .See generally 9 REMINGTON ON BANKRUPTCY § 3565, at 199 & n. 5, § 3582, at 225 (6th ed. J. Henderson 1955). . G. Glenn, supra note 9, at § 404, n. 28, citing Garrison, Recent Amendments to the Bankruptcy Act, 19 A.B.A.J. 330 (1933). . See General Principles of Plans of Corporate Reorganization, supra note 15, at 40; Note, The Chandler Bill and Section 77B, 23 Iowa L.Rev. 402 (1938). . Blum, The Law and Language of Corporate Reorganizations, 17 U.Chi.L.Rev. 565, 567 (1950). . Israels, Some Problems of Policy and Procedure in the Conduct of Reorganization" }, { "docid": "13114235", "title": "", "text": "S.Ct. 605, 77 L.Ed. 1243. Appellant has petitioned the Referee in Bankruptcy to allow a claim which he asserts against the Receiver, the Debtor Corporations, Pretzer, Landers and the Trust Estate. By using a petition to the Referee in the bankruptcy proceedings rather than formal pleadings as in a plenary action, and in asserting a claim to share in the distribution of the estates, appellant seeks to invoke the summary jurisdiction of the Bankruptcy Court. See Continental Illinois Nat. Bank v. Chicago R. I. & P. Ry. Co., 1935, 294 U.S. 648, 682, 55 S.Ct. 595, 79 L.Ed. 1110; Taylor v. Voss, supra; 8 Collier on Bankruptcy § 3.01. The Bankruptcy Court recognized its jurisdiction in appellant’s claim against the Receiver. That part of the claim was decided on the merits, adversely to appellant, and no appeal having been taken it is not before us. The Referee dismissed appellant’s petition for lack of jurisdiction over Evarts’ dispute with Debtor Corporations, and with Pretzer and Landers, holding that the Bankruptcy Court was without jurisdiction as to dealings outside the bankruptcy proceedings. Section 311 of the Chandler Act, 11 U.S.C.A. § 711, gives the Bankruptcy Court in which a petition for a Chapter XI Arrangement is filed “exclusive jurisdiction of the debtor and his property”. However, inasmuch as Evarts alleged contracts with only Pretzer and Landers at a time when the Debtor Corporations were under the exclusive control of the Receiver, and inasmuch as the Bankruptcy Court did not ratify or approve the employment of Evarts, he has not stated a cause of action against the corporations in bankruptcy. There was no error in the dismissal as to the Debtor Corporations. The Bankruptcy Court has no jurisdiction in controversies between third parties not involving the debtor or his property, 8 Collier on Bankruptcy, § 3.02, n. 2, p. 124; In re Lubliner & Trinz Theatres, Inc., 7 Cir., 1938, 100 F.2d 646; In re Hotel Martin Co. of Utica, 7 Cir., 1938, 94 F.2d 643. It is clear that Pretzer, as an individual, was a third party to the debtor proceedings; and" }, { "docid": "17771291", "title": "", "text": "any title, legal or equitable, to such milo and wheat, but were merely bailees thereof; and that if the trustee had sold or otherwise disposed of such milo and wheat, the proceeds of such sales were the property of and should be paid to Commodity. . James Talcott, Inc., v. Glavin, 3 Cir., 104 F.2d 851, 853, certiorari denied 308 U.S. 598, 60 S.Ct. 130, 84 L.Ed. 501; Page v. Arkansas Natural Gas Corporation, 8 Cir., 53 F.2d 27, 35, affirmed 286 U.S. 269, 52 S.Ct. 507, 76 L.Ed. 1096; Remington on Bankruptcy, 5 Ed. (Henderson), Vol. 5, § 2200. . Central States Corp. v. Luther, 10 Cir., 215 F.2d 38, 45, and cases cited in note 10. . Goodman v. Northcutt, 14 Or. 529, 13 P. 485; Dole v. Olmstead, 36 Ill. 150, 155-156. . Norton v. Agricultural Bond & Credit Corporation, 10 Cir., 92 F.2d 348, 351, 352, certiorari denied 302 U.S. 763, 58 S.Ct. 409, 82 L.Ed. 592; Commercial Standard Ins. Co. v. Remer, 10 Cir., 119 F.2d 66, 70. . In re Samuel Wilde’s Sons, 2 Cir., 144 F. 972; In re Elmore Cotton Mills, D.C. Ala., 217 F. 810, 819; In re Kellar, 1 Cir., 192 F. 830, 832. . Mangan v. United States, 254 U.S. 494, 497, 41 S.Ct. 157, 65 L.Ed. 370; Monte Vista Farmers’ Co-op. Produce Co. v. Bemis Bros. Bag Co., 8 Cir., 294 F. 8, 12, 13; Fadler Co. v. Hesser, 10 Cir., 106 F.2d 904, 907; Riggens v. Pomona Products Co., 82 Ga.App. 636, 61 S.E.2d 682, 684; Gleaner Harvester Corp. v. Anderson, 148 Kan. 836, 84 P.2d 838; 77 C.J.S., Sales, § 91, p. 778. . E. T. C. Corporation v. Title Guarantee & Trust Co., 271 N.Y. 124, 2 N.E.2d 284, 286, 105 A.L.R. 999. . See In re Salmon Weed & Co., 2 Cir., 53 F.2d 335, 79 A.L.R. 379. . See In re Salmon Weed & Co., supra." }, { "docid": "8347724", "title": "", "text": "throughout the Union. Louisville Joint Stock Land Bank v. Radford, supra; Hanover National Bank v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113. Section 77 of the Bankruptcy Act (see 11 U.S.C.A. § 205), providing for railroad reorganization, invades the rights of creditors to a much greater-extent than does the act here in question. The Supreme Court sustained that act in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110, and section 77B (see 11 U.S. C.A. § 207), providing for corporate reorganization, invades the rights of creditors more drastically than the act here. That section has been sustained as constitutional. In re Sterba (C.C.A.) 74 F.(2d) 413; In re New Rochelle Coal & Lumber Co. (C.C.A.) 77 F.(2d) 881; Grand Boulevard Investment Company v. Strauss (C.C.A.) 78 F.(2d) 180. It may be' said that the long period of recognized equity receiverships applicable to both railroads and corporations which postponed the payment of debts of such corporations distinguishes sections 77 and 77B from the act here in question, But when we are dealing with the exercise of’ the constitutional power, it would seem that if the Congress can confer on the bankruptcy courts the power theretofore exercised by courts of equity corporate receiverships, a fortiori it may constitutionally confer on bankruptcy courts for farmers the same power as conferred for corporation. The act under consideration is not in its terms essentially different from the Minnesota Moratorium Law (Laws 1933, c. 339), which was sustained by the Supreme Court in the case of Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481. The Minnesota act may be said to have been sustained as a valid exercise of the police power of the state, justified by an emergency, and that Congress has no such power; but in answer to this, the Congress may exercise its constitutional powers for any purpose for which a state may exercise its powers. Hoke v. United States, 227 U.S. 308," }, { "docid": "4700710", "title": "", "text": "or to prevent an abuse of process.” 11 U.S.C. § 105(a). The usual grounds for injunctive relief such as irreparable injury need not be shown in a proceeding for an injunction under section 105(a). LTV Steel Company, Inc. v. Board of Education (In re Chateaugay Corporation), 93 B.R. 26, 29 (S.D.N.Y.1988); Johns-Manville Corporation v. Colorado Insurance Guaranty Association (In re Johns-Manville Corporation), 91 B.R. 225, 227-28 (Bankr. S.D.N.Y.1988); Garrity v. Leffler (In re Neuman), 71 B.R. 567, 571 (S.D.N.Y.1987); see Henderson v. Burd, 133 F.2d 515, 517 (2d Cir.1943). A bankruptcy court may enjoin proceedings in other courts when it is satisfied that the proceedings would defeat or impair its jurisdiction with respect to a case before it. LTV, at 29, citing In re Johns-Manville Corp., 26 B.R. 420, 425 (Bankr.S.D.N.Y.1983), aff'd, 40 B.R. 219 (S.D.N.Y.), rev’d in part, 41 B.R. 926 (S.D.N.Y.1984); see Continental Illinois National Bank v. Chicago, 294 U.S. 648, 675, 55 S.Ct. 595, 605-06, 79 L.Ed. 1110 (1935); A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 1008 (4th Cir.), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). The federal courts have long been concerned with the integrity of the bankruptcy sale process. Mindful of the need to engender stability and integrity of the sale process, the bankruptcy courts will uphold regularly conducted sales unless they are tinged with fraud, error or similar defects which would in equity affect the validity of any private transactions. In re General Insecticide Co., Inc., 403 F.2d 629, 630-31 (2d Cir.1968); In re Todem Homes, Inc., 51 B.R. 883, 888 (Bankr.S.D.N.Y.1985). But where the integrity of that process has been impugned, the bankrupt cy courts may set aside their own orders pursuant to equitable principles. Lindsey v. Department of Labor (In re Harris Management Co., Inc.), 791 F.2d 1412, 1415 (9th Cir.1986). Sales to fiduciaries are necessarily subjected to heightened scrutiny because they are rife with the possibility of abuse. As the Second Circuit explained when it affirmed a decision of the district court to set aside a sale to the president of one of the" }, { "docid": "16897850", "title": "", "text": "jurisdiction by virtue of § 1337, supra. But the Supreme Court has held that the provisions of §§ 9(f) and (g) of the Act “merely describe advantages that may be gained by compliance with their conditions” and that “no consequences other than those so listed * * * result from noncompliance” and that a labor organization may elect to comply or not comply as it chooses. It follows that the Act does not give plaintiffs the rights they claim. The judgment is affirmed. . Hereinafter called the plaintiffs. . Hereinafter called Lodge No. 83. . Hereinafter called the International Brotherhood. . Talton v. Behncke, 7 Cir., 199 F.2d 471, 473; Dyer v. Occidental Life Ins. Co. of Cal., 9 Cir., 182 F.2d 127, 130, 17 A.L.R.2d 923; Radio Station KFH Co. v. Musicians Ass’n Local 297, 169 Kan. 596, 220 P.2d 199, 205. . Murphy v. Hotel & Restaurant Employees & Bartenders International Union, D.C.Mich., 102 F.Supp. 488; Kriss v. White, D.C.N.Y., 87 F.Supp. 734; Snoots v. Vejlupek, D.C.Ohio, 87 F.Supp. 503; Holman v. Industrial Stamping & Manufacturing Co., D.C.Mich,, 142 F.Supp. 215. . Holman v. Industrial Stamping & Manufacturing Co., D.C.Mich., 142 F.Supp. 215; Amazon Cotton Mill Co. v. Textile Workers Union of America, 4 Cir., 167 F.2d 183. . Toledo P. & W. R. R. v. Brotherhood of Railroad Trainmen, 7 Cir., 132 F.2d 265, 268 (reversed on other grounds, Brotherhood of Railroad Trainmen v. Toledo P. & W. R. R., 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534); In re Lennon, 166 U.S. 548, 553, 554, 17 S.Ct. 658, 41 L.Ed. 1110. . United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 73, 76 S.Ct. 559, 566, 100 L.Ed. 941; National Labor Relations Board v. District 50, United Mine Workers of America, 355 U.S. 453, 462, 463, 78 S.Ct. 386, 2 L.Ed. 2d 401." }, { "docid": "13815731", "title": "", "text": "Land Bank v. Gaines, 290 U.S. 247, 54 S.Ct. 168, 78 L.Ed. 298; West Virginia Rail Co. v. Jewett Bigelow & Brooks Coal Co., D.C., 26 F.2d 503; Continental Illinois National Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110; Mellon v. Michigan Trust Co., 271 U.S. 236, 46 S.Ct. 511, 70 L.Ed. 924; Hatch v. Morosco Holding Co., 2 Cir., 56 F.2d 640, affirmed 2 Cir., 61 F.2d 944; Lewis v. United States, 92 U.S. 618, 23 L.Ed. 513; In re Neff, 6 Cir., 157 F. 57, 28 L.R.A.,N.S., 349, 19 A.B.R. 23; Board of County Commissioners v. Hurley, 8 Cir., 169 F. 92, 22 A.B.R. 209; Muller v. Kling, 149 App.Div. 176, 133 N.Y.S. 614, affirmed 209 N.Y. 239, 103 N.E. 138; In re Eastern Shore Shipbuilding Corp., 2 Cir., 274 F. 893, 48 A.B.R. 110; Beaston v. Farmers’ Bank, 12 Pet. 102, 9 L.Ed. 1017; U. S. v. State Bank of North Carolina, 6 Pet. 29, 8 L.Ed. 308; and Wagner v. McDonald, Federal Housing Administrator, 96 F.2d 273, decided by the Circuit Court of Appeals, Eighth Circuit, on April 27, 1938. While the question involved is not free from doubt due to .conflicting opinions, the weight of authority indicates that the Fed eral Housing Administrator’s claim arises from an expenditure of Government funds; therefore it is a debt due the United States and is entitled to priority over general creditors under Section 64b of the Bankruptcy Act, 11 U.S.C.A. § 104(b). The report of the Referee is confirmed. Settle order on notice." } ]

[ { "docid": "20694711", "title": "", "text": "reasonable opportunity to discover, or should be expected to have discovered, that another of her accounts — Facebook— might similarly have become compromised. We pause to acknowledge that the statutes of limitations governing claims under the CFAA and SCA, as we understand them, may have troubling consequences in some situations. Even after a prospective plaintiff discovers that an account has been hacked, the investigation necessary to uncover the hacker’s identity may be substantial. In many cases, we suspect that it might take more than two years. But it would appear that if a plaintiff cannot discover the hacker’s identity within two years of the date she discovers the damage or violation, her claims under the CFAA and SCA will be untimely. The plaintiff does have the option of initiating a lawsuit against a Jane or John Doe defendant, but she must still discover the hacker’s identity within two years of discovery or a reasonable opportunity to discover the violation to avoid dismissal. This is because we have concluded “that Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities.” Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir.1995). CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for further proceedings. . Sewell’s characterization of her relationship with Bernardin is contained in an affidavit filed with the district court on February 14, 2014. . In her complaint, Sewell describes an email sent in or around August 2011 using her personal contacts list as containing “malicious statements toward Sewell regarding certain sexually transmitted diseases and sexual activities.” Compl. ¶ 19 (J.A. 6). . The defendant styled his motion before the district court as a motion pursuant to Federal Rule of Civil Procedure 12(c). The district court, however, treated the motion as a motion to dismiss pursuant to Rule 12(b)(6). The parties do not raise this as an issue on appeal and, in any event, \"[t]he standard for granting" } ]

[ { "docid": "21804204", "title": "", "text": "or fault resulting from defective judgment, deficient knowledge, or carelessness” or “[a] misconception or misunderstanding.”); Oxford English Dictionary (2d ed. 1989) (“A misconception or misapprehension of the meaning of something; hence, an error or fault in thought or action.”); Webster’s New World Dictionary of the American Language: College Edition 942-43 (1968) (“A fault in understanding, perception, interpretation, etc.”). The same is true in legal dictionaries. The definition from Black’s Law Dictionary cited in Krupski—“[a]n error, misconception, or misunderstanding; an erroneous belief’—implies a lack of intentionality. Earlier editions of Black’s expressly include the modifier “unintentional” in the definition of mistake. The fourth edition, which prevailed in 1966 when Rule 15 was amended to add the “mistake” language, defined the term as “[s]ome unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.” Black’s Law Dictionary 1152-53 (4th ed. 1951) (emphasis added); see also Black’s Law Dictionary 1152-53 (4th rev. ed. 1968) (same). The Heglunds argue that their John Doe pleading qualifies as a “mistake” because it is “a wrong ... statement proceeding from ... inadequate knowledge,” one of the definitions from Webster’s that was cited in Krupski. To be sure, the Heglunds used the John Doe device because they had inadequate knowledge of Scherf s identity, but the inclusion of “John Doe” was not a “wrong statement” in the sense of the definition. The device accurately conveyed that the Heglunds did not know Scherf s identity. The statement was not the result of a misunderstanding or misconception; it was an intentional misidentification, not an unintentional error, inadvertent wrong action, or “mistake.” Other circuits likewise have concluded that a plaintiffs lack of knowledge of a defendant’s identity is not a “mistake” under Rule 15(c). See Smith v. City of Akron, 476 Fed.Appx. 67, 69 (6th Cir. 2012); Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004); Wayne v. Jarvis, 197 F.3d 1098, 1103 (11th Cir. 1999), overruled in part on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc); Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998); Barrow v. Wethersfield Police" }, { "docid": "1589530", "title": "", "text": "on the fact that the Plaintiffs included a reference to B. Reitman Blacktop, Inc. in the Initial Complaint and First Amended Complaint, and because “B. Reitman Blacktop, Inc.” was listed on the Plaintiffs’ W-2 forms. However, this argument reflects a misunderstanding of the “mistake” inquiry, which the U.S. Supreme Court recently clarified in Krupski v. Costa Crociere S.p.A. as follows: Information in the plaintiffs possession is relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake regarding the proper party’s identity. For purposes of that inquiry, it would be error to conflate knowledge of a party’s existence with the absence of mistake. A mistake is “[a]n error, misconception, or misunderstanding; an erroneous belief.” Black’s Law Dictionary 1092 (9th ed. 2009); see also Webster’s Third New International Dictionary 1446 (2002) (defining “mistake” as “a misunderstanding of the meaning or implication of something”; “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention”; “an erroneous belief’; or “a state of mind not in accordance with the facts”). That a plaintiff knows of a party’s existence does not preclude her from making a mistake with respect to that party’s identity. -U.S. - , 130 S.Ct. 2485, 2493-94, 177 L.Ed.2d 48 (2010). Thus, the fact that the Plaintiff may have known of B. Reitman Blacktop, Inc.’s existence, but erroneously believed that B. Reitman Blacktop, Inc. was simply the name under which the Defendants “did business” is precisely the situation that Rule 15(c) anticipates. Finally, the Defendants, without any explanation, contend that because the Plaintiff unduly delayed in seeking to add B. Reitman Blacktop, Inc. as a defendant, the Court should consider the date that the Plaintiffs filed the motion to amend as the date the action was commenced for purposes of the statute of limitations. However, whether to apply the relation back doctrine is not a matter within the Court’s discretion. In Krupski, the Supreme Court held that, “relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge or its timeliness" }, { "docid": "11296459", "title": "", "text": "a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations.”). In order for an amended complaint to relate back under Rule 15(c)(1)(C), the following conditions must be met: “(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it.” Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). Additionally, the second and third requirements must have been fulfilled within 120 days after the original complaint is filed, as prescribed by Federal Rule of Civil Procedure 4(m). See Hogan, 738 F.3d at 517 (indicating that the fourth requirement is met when “ ‘the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and ... the original complaint [was] filed within the limitations period.’ ”) (quoting Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-69 (2d Cir.1995)). There is no dispute that the first two requirements were met. The dispute lies with the third requirement, that the appellees “knew or should have known that the action would have been brought against [them], but for a mistake concerning the proper party’s identity.” Fed. R.CrvP. 15(c)(l)(C)(ii) (emphasis added). The United States Supreme Court construed Rule 15(c)(l)(C)(ii) in Krupski, 560 U.S. 538, 130 S.Ct. 2485. In Krwpski, a cruise ship passenger sued for injuries suffered on the ship. Id. at 541-42, 130 S.Ct. 2485. The complaint named the marketing agent for the carrier as the defendant, rather than the carrier. Id. at 543, 130 S.Ct. 2485. After the statute of limitations had run, she sought to amend her complaint under Rule 15(c)(1)(C) to state her claim against the carrier. Id. at 544, 130 S.Ct. 2485. The Eleventh Circuit Court of Appeals ruled that the proposed amendment did not relate back because" }, { "docid": "18950958", "title": "", "text": "Costa Crociere had constructive notice of the action and had not shown that any unfair prejudice would result from relation back. App. to Pet. for Cert. 14a-18a. But the court found the third condition fatal to Krupski’s attempt to relate back, concluding that Krupski had not made a mistake concerning the identity of the proper party. Id., at 18a-21a. Relying on Eleventh Circuit precedent, the court explained that the word “mistake” should not be construed to encompass a deliberate decision not to sue a party whose identity the plaintiff knew before the statute of limitations had run. Because Costa Cruise informed Krupski that Costa Crociere was the proper defendant in its answer, corporate disclosure statement, and motion for summary judgment, and yet Krupski delayed for months in moving to amend and then in filing an amended complaint, the court concluded that Krupski knew of the proper defendant and made no mistake. The Eleventh Circuit affirmed in an unpublished per curiam opinion. Krupski v. Costa Cruise Lines, N. V., LLC, 330 Fed. Appx. 892 (2009). Rather than relying on the information contained in Costa Cruise’s filings, all of which were made after the statute of limitations had expired, as evidence that Krupski did not make a mistake, the Court of Appeals noted that the relevant information was located within Krupski’s passenger ticket, which she had furnished to her counsel well before the end of the limitations period. Because the ticket clearly identified Costa Crociere as the carrier, the court stated, Krupski either knew or should have known of Costa Crociere’s identity as a potential party. It was therefore appropriate to treat Krupski as having chosen to sue one potential party over another. Alternatively, even assuming that she first learned of Costa Crociere’s identity as the correct party from Costa Cruise’s answer, the Court of Appeals observed that Krupski waited 133 days from the time she filed her original complaint to seek leave to amend and did not file an amended complaint for another month after that. In light of this delay, the Court of Appeals concluded that the District Court did" }, { "docid": "21804200", "title": "", "text": "the claim or defense asserted in the amended complaint arises out of the same conduct, transaction, or occurrence set out in the initial complaint, (2) within 90 days after the original complaint was filed, the party to be added “received such notice of the action that it will not be prejudiced in defending on the merits,” and (3) upon receiving notice, the party to be added “knew or should have known that the action would have been brought against it, but for a mistake con cerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C); 4(m). When those conditions are satisfied, the amended complaint is treated as if it were filed on the date of the original complaint. See Hayes v. Faulkner County, 388 F.3d 669, 675-76 (8th Cir. 2004). The district court concluded that the Heglunds’ amended complaint failed to satisfy the third requirement because the Heglunds’ use of the John Doe pleading device did not qualify as a “mistake.” The parties agree that the Heglunds sued “John Doe” in their original complaint because they did not then know the name of the officer who accessed Jennifer’s information on March 25, 2010. We review de novo the district court’s grant of summary judgment and its interpretation of Rule 15(c). The Heglunds argue that lack of knowledge of the proper party’s identity qualifies as a mistake under Rule 15(c). Scherf and Grand Rapids contend that the Heglunds’ decision to name a John Doe defendant cannot be characterized as a mistake because the Heglunds knew that they lacked knowledge of the defendant’s true identity—there was no misunderstanding or misconception. They argue that the Heglunds intentionally represented their lack of knowledge about the identity of the defendant, so there was no mistake, and the Heglunds’ amended complaint does not relate back under Rule 15(c). In Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010), the Supreme Court reasoned that relation back under Rule 15(c) depends on “what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff" }, { "docid": "21804206", "title": "", "text": "Dep’t, 66 F.3d 466, 469-70 (2d Cir. 1995); Worthington v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993). But see Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977). Although most of these cases predated Krupski, we are not convinced that the Court’s analysis dictates that “mistake” includes wrong acts or statements made with full knowledge that the named party is not the proper defendant. While Krupski concluded that Rule 15(c) focuses largely on what a prospective defendant knew or should have known, the Court was not confronted with an intentional error by a plaintiff that is incompatible with the very definitions of “mistake” that governed the Court’s decision. 560 U.S. at 548-49, 130 S.Ct. 2485. The Heglunds urge us to recognize John Doe pleadings as “mistakes” so that plain tiffs with inadequate knowledge will not be subjected to shorter statutes of limitation than plaintiffs who list the wrong defendant in an original complaint. There may well be sound policy arguments for permitting relation back when a plaintiff amends a John Doe pleading to substitute a real person and can satisfy the other requirements under Rule 15(c). See Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 201 n.5 (3d Cir. 2001). But we think these concerns are best directed to the rulemakers, because it would unduly strain the plain language of the present rule to say that Rule 15(c) encompasses the Heglunds’ amendment. Under Rule 15(c), relation back is permitted only when the action originally is brought against the wrong person because of a “mistake.” Regardless of when Scherf learned of the action or what he knew about whether the plaintiffs would like to have sued him, the Heglunds did not make a “mistake” in the ordinary sense of the word when they intentionally sued “John Doe” while knowing that he was not the proper defendant. The judgment of the district court is affirmed. . The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota. . The Heglunds claim that Scherf’s access of Jennifer's information counts as five separate accesses under the" }, { "docid": "21804202", "title": "", "text": "knew or should have known at the time of filing her original complaint.” Id. at 548, 130 S.Ct. 2485. The Court stated that a plaintiffs knowledge is “relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake.” Id. At the same time, however, the Court affirmed that a plaintiffs deliberate choice, made with a full understanding of the legal and factual situation, is “the antithesis of making a mistake.” Id. at 549, 130 S.Ct. 2485. By contrast, a mistake occurs if a plaintiff knows that two or more parties exist but chooses to sue the wrong one based on a misunderstanding about that party’s status or role. Id. The Court defined mistake as “[a]n error, misconception, or misunderstanding; an erroneous belief.” Id. at 548, 130 S.Ct. 2485 (quoting Black’s Law Dictionary 1092 (9th ed. 2009)). It also described a mistake as “a misunderstanding of the meaning or implication of something”; “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention”; “an erroneous belief’; or “a state of mind not in accordance with the facts.” Id. at 548-49, 130 S.Ct. 2485 (quoting Webster’s Third New International Dictionary 1446 (2002)). We conclude that naming a John Doe defendant is not a “mistake.” Mistake implies inadvertence or a sincere but wrong belief. “Error,” which Krupski recognized as synonymous with mistake, is defined as “an act involving an unintentional deviation from truth or accuracy.” Webster’s Third New International Dictionary 772 (2002) (emphasis added). That same dictionary entry notes that while error and mistake are synonyms, error implies “a deviation from correct ... course,” and mistake “suggests a misunderstanding, wrong decision, or inadvertent wrong action.” Id. (emphases added). The very definition of “mistake” cited in Krupski reflects this meaning when the coordinate subsense of the word is reproduced in full: “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention : an unintentional error.” Id. at 1446 (emphasis added). Other lay dictionaries confirm that “mistake” implies an unintentional error through lack of understanding. See American Heritage Dictionary 1128 (5th ed. 2011) (“An error" }, { "docid": "12296005", "title": "", "text": "that better describe one company than they do the other, only one more accurately applies to HIE: At the time of the complaint, HIE owned 49% of HUE. Allegations 1 and 5 indicate BIE was the intended defendant: BHIC, not HIE, owned the majority of BIE, and HII assigned part of its interest in Contract 20A to the company that, at the time, was named HIE and was owned primarily by BHIC. Thereafter the assignee participated in the conspiracy. This latter datum, which unlike the others reaches the intended defendant’s substantive involvement in the bid rigging, should have led counsel to the conclusion that BIE was the intended defendant. This discussion undoubtedly seems obscure to anyone unfamiliar with the various companies in the Harbert group of companies. When an attorney for several of these companies, however, receives a complaint she knows mistakenly names as the defendant one company in the group, and she represents two other companies in the group with names similar to that of the named defendant, it should be obvious that she needs to consider the history and corporate structure of both companies and to determine which company is the intended defendant. BIE argues the Government and Miller could have determined the correct name because the relevant parts of the structure of the Harbert complex were disclosed in certain financial documents of which they had copies. The appropriate inquiry under Rule 15, however, is what the intended defendant “should have known.” Fed. R.Civ.P. 15(c)(l)(C)(ii). After this case had been submitted the Supreme Court clarified the issue in Krupski v. Costa Crociere S.p.A., 560 U.S.-, 130 S.Ct. 2485, — L.Ed.2d-(2010). In Krupski the plaintiff sued Costa Cruise Lines N.V. instead of the related company Costa Crociere S.p.A. Although the plaintiff could have determined the correct identity of the intended defendant, the Court explained, Rule 15(c)(l)(C)(ii) asks what the prospective defendants knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known.... That a plaintiff knows of a party’s existence does not preclude her from making a mistake with respect to" }, { "docid": "2470513", "title": "", "text": "asks us to apply the relation-back doctrine. The technical pleading errors Quinn asks us to forgive are not the type of errors that relation back is designed to fix, such as misnomer and misidentification. See Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 550, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010); Univ. of Tex. Health Sci Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 400-01 (Tex. 2011). Quinn correctly identified the defendants he wished to sue. The pleading error was failing to allege a federal cause of action until it was too late. In other words, relation back is designed to ameliorate certain kinds of mistakes, but Quinn made a tactical choice to omit his federal claims until March 2009. As a result, the relation-back doctrine does not apply. Finally, Quinn argues the concept of identity of interest saves his federal claims. Quinn adequately describes what it means for parties to share an identity of interest using this court’s decision in Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998): An identity of interest exists when “the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other.” The defendant officers here certainly share an identity of interest with the City. See id. Quinn’s problem, though, is not that he failed to name the proper defendant and now must rely on the officers’ kinship to the City to salvage his claims. His problem is that he sued the correct defendants on the wrong claim and failed to correct his error until the limitations period had expired. The shared identity of interest between the officers and the City is of no consequence. The district court properly dismissed Quinn’s federal claims against the individual defendants. IV. Dismissal of Quinn’s Claims Against the City We review de novo the district court’s grant of the City’s motion to dismiss under Rules 12(b)(1) and 12(b)(6). See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). We analyze this issue in two parts." }, { "docid": "12296006", "title": "", "text": "needs to consider the history and corporate structure of both companies and to determine which company is the intended defendant. BIE argues the Government and Miller could have determined the correct name because the relevant parts of the structure of the Harbert complex were disclosed in certain financial documents of which they had copies. The appropriate inquiry under Rule 15, however, is what the intended defendant “should have known.” Fed. R.Civ.P. 15(c)(l)(C)(ii). After this case had been submitted the Supreme Court clarified the issue in Krupski v. Costa Crociere S.p.A., 560 U.S.-, 130 S.Ct. 2485, — L.Ed.2d-(2010). In Krupski the plaintiff sued Costa Cruise Lines N.V. instead of the related company Costa Crociere S.p.A. Although the plaintiff could have determined the correct identity of the intended defendant, the Court explained, Rule 15(c)(l)(C)(ii) asks what the prospective defendants knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known.... That a plaintiff knows of a party’s existence does not preclude her from making a mistake with respect to that party’s identity. Id. at ——•, slip op. at 8-9. BIE argues for the first time in a footnote in its brief on appeal that the 120-day period in Rule 4(m), referred to in Rule 15(c)(1)(C), started to run when the suit was filed in 1995 rather than when the complaint was unsealed in 2001. We do not ordinarily consider an argument made for the first time on appeal. In any event, as we stated in Hutchins v. District of Columbia, 188 F.3d 531, 539 n. 3 (D.C.Cir.1999) (en banc), “[w]e need not consider cursory arguments made only in a footnote.” 4. Remaining Claims To summarize, the only claims left standing are Miller’s claims concerning Contract 20A, as originally pleaded and subsequently amended, and the Government’s claims concerning the same contract, which relate back to Miller’s claims for purposes of the statute of limitations. All the Government’s and Miller’s claims concerning Contracts 07 and 29 are time barred. B. Preemption BIE, HUE, and BHIC alone argue this ease should have been dismissed because the Foreign" }, { "docid": "18950972", "title": "", "text": "postfiling conduct informs the prospective defendant’s understanding of whether the plaintiff initially made a “mistake concerning the proper party’s identity,” a court may consider the conduct. Cf. Leonard v. Parry, 219 F. 3d 25, 29 (CA1 2000) (“[P]ost-filing events occasionally can shed light on the plaintiff’s state of mind at an earlier time” and “can inform a defendant’s reasonable beliefs concerning whether her omission from the original complaint represented a mistake (as opposed to a conscious choice)”). The plaintiff’s postfiling conduct is otherwise immaterial to the question whether an amended complaint relates back. C Applying these principles to the facts of this case, we think it clear that the courts below erred in denying relation back under Rule 15(e)(l)(C)(ii). The District Court held that Costa Crociere had “constructive notice” of Krupski’s complaint within the Rule 4(m) period. App. to Pet. for Cert. 15a-17a. Costa Crociere has not challenged this finding. Because the complaint made clear that Krupski meant to sue the company that “owned, operated, managed, supervised and controlled” the ship on which she was injured, App. 23, and also indicated (mistakenly) that Costa Cruise performed those roles, id., at 23-27, Costa Crociere should have known, within the Rule 4(m) period, that it was not named as a defendant in that complaint only because of Krupski’s misunderstanding about which “Costa” entity was in charge of the ship — clearly a “mistake concerning the proper party’s identity.” Respondent contends that because the original complaint referred to the ticket’s forum requirement and presuit claims notification procedure, Krupski was clearly aware of the contents of the ticket, and because the ticket identified Costa Croeiere as the carrier and proper party for a lawsuit, respondent was entitled to think that she made a deliberate choice to sue Costa Cruise instead of Costa Croeiere. Brief for Respondent 18. As we have explained, however, that Krupski may have known the contents of the ticket does not foreclose the possibility that she nonetheless misunderstood crucial facts regarding the two companies’ identities. Especially because the face of the complaint plainly indicated such a misunderstanding, respondent’s contention is not" }, { "docid": "5683935", "title": "", "text": "the parties listed as “John Does” in the Tender Adversaries, suggesting that he was in communication with the Producers who later emerged to file the actions at bar. See Feb. 26, 2009 Hr’g Tr. at 20:1-4 [Adv. No. 08-51444, Docket No. 88] (Mr. Ray: “I know John Doe. John Doe is one of my constituents.”). “[W]hen an originally named party and the parties added are represented by the same attorney, the attorney is likely to have communicated to the latter party that he may very well be joined in the action.” Davis, 480 F.Supp.2d at 761. The Court is therefore persuaded that all relevant Producers have been sufficiently aware of the Tender Adversaries. Third, the Producers “knew or should have known that the [claims in the Tender Adversaries] would have been brought against [them],” but for the omission of certain named Producers because of the Tender Parties’ lack of knowledge as to their particular identity. The Third Circuit has held that “a ‘mistake’ is no less a ‘mistake’ when it flows from lack of knowledge as opposed to inaccurate description.” Arthur v. Maersk, Inc., 434 F.3d 196, 208 (3d Cir.2006). Moreover, the United States Supreme Court recently clarified that it is not the Tender Parties’ knowledge as plaintiffs that is relevant, but the Producers’ knowledge as potential defendants. Krupski v. Costa Crociere S.p.A., — U.S. —, 130 S.Ct. 2485, 2488, 177 L.Ed.2d 48 (2010) (finding that the defendant’s state of mind, not the plaintiffs state of mind, is relevant when considering Rule 15(c)). The inquiry is thus whether the Producers who were recently added to the complaints in the Tender Adversaries knew or should have known that they would have been named but for the Tender Parties’ lack of knowledge as to their particular identity. The Court is thus persuaded that all relevant Producers knew or should have known that they were likely to be defendants in the Tender Adversaries, and that they were the parties intended to be captured as “John Does.” Each of these Producers knew or should have known that it was an “individual or entity whose" }, { "docid": "11296460", "title": "", "text": "and ... the original complaint [was] filed within the limitations period.’ ”) (quoting Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-69 (2d Cir.1995)). There is no dispute that the first two requirements were met. The dispute lies with the third requirement, that the appellees “knew or should have known that the action would have been brought against [them], but for a mistake concerning the proper party’s identity.” Fed. R.CrvP. 15(c)(l)(C)(ii) (emphasis added). The United States Supreme Court construed Rule 15(c)(l)(C)(ii) in Krupski, 560 U.S. 538, 130 S.Ct. 2485. In Krwpski, a cruise ship passenger sued for injuries suffered on the ship. Id. at 541-42, 130 S.Ct. 2485. The complaint named the marketing agent for the carrier as the defendant, rather than the carrier. Id. at 543, 130 S.Ct. 2485. After the statute of limitations had run, she sought to amend her complaint under Rule 15(c)(1)(C) to state her claim against the carrier. Id. at 544, 130 S.Ct. 2485. The Eleventh Circuit Court of Appeals ruled that the proposed amendment did not relate back because the plaintiff was made aware of the existence of the correct entity prior to the expiration of the statute of limitations. Id. at 546, 130 S.Ct. 2485. In reversing, the Court held: “relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge.” Id. at 541, 130 S.Ct. 2485. The Court went on to explain that: [b]y focusing on [plaintiffs] knowledge, the Court of Appeals chose the wrong starting point. The question under Rule 15(e)(l)(C)(ii) is not whether [plaintiff] knew or should have known the identity of [the carrier] as the proper defendant, but whether [the carrier] knew or should have known that it would have been named as a defendant but for an error. Rule 15(c)(l)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint. Id. at 548, 130 S.Ct. 2485. We conclude that the district court correctly" }, { "docid": "18950961", "title": "", "text": "have been brought against it, but for a mistake concerning the proper party’s identity.” Rule 15(e)(1). In our view, neither of the Court of Appeals’ reasons for denying relation back under Rule 15(e)(l)(C)(ii) finds support in the text of the Rule. We consider each reason in turn. A The Court of Appeals first decided that Krupski either knew or should have known of the proper party’s identity and thus determined that she had made a deliberate choice instead of a mistake in not naming Costa Crociere as a party in her original pleading. 330 Fed. Appx., at 895. By focusing on Krupski’s knowledge, the Court of Appeals chose the wrong starting point. The question under Rule 15(c)(l)(C)(ii) is not whether Krupski knew or should have known the identity of Costa Crociere as the proper defendant, but whether Costa Crociere knew or should have known that it would have been named as a defendant but for an error. Rule 15(c)(l)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint. Information in the plaintiff’s possession is relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake regarding the proper party’s identity. For purposes of that inquiry, it would be error to conflate knowledge of a party’s existence with the absence of mistake. A mistake is “[a]n error, misconception, or misunderstanding; an erroneous belief. ” Black’s Law Dictionary 1092 (9th ed. 2009); see also Webster’s Third New International Dictionary 1446 (2002) (defining “mistake” as “a misunderstanding of the meaning or implication of something”; “a wrong action or statement proceeding from faulty judg ment, inadequate knowledge, or inattention”; “an erroneous belief”; or “a state of mind not in accordance with the facts”). That a plaintiff knows of a party’s existence does not preclude her from making a mistake with respect to that party’s identity. A plaintiff may know that a prospective defendant — call him party A — exists, while erroneously believing him to have" }, { "docid": "21804205", "title": "", "text": "... inadequate knowledge,” one of the definitions from Webster’s that was cited in Krupski. To be sure, the Heglunds used the John Doe device because they had inadequate knowledge of Scherf s identity, but the inclusion of “John Doe” was not a “wrong statement” in the sense of the definition. The device accurately conveyed that the Heglunds did not know Scherf s identity. The statement was not the result of a misunderstanding or misconception; it was an intentional misidentification, not an unintentional error, inadvertent wrong action, or “mistake.” Other circuits likewise have concluded that a plaintiffs lack of knowledge of a defendant’s identity is not a “mistake” under Rule 15(c). See Smith v. City of Akron, 476 Fed.Appx. 67, 69 (6th Cir. 2012); Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004); Wayne v. Jarvis, 197 F.3d 1098, 1103 (11th Cir. 1999), overruled in part on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc); Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998); Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 469-70 (2d Cir. 1995); Worthington v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993). But see Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977). Although most of these cases predated Krupski, we are not convinced that the Court’s analysis dictates that “mistake” includes wrong acts or statements made with full knowledge that the named party is not the proper defendant. While Krupski concluded that Rule 15(c) focuses largely on what a prospective defendant knew or should have known, the Court was not confronted with an intentional error by a plaintiff that is incompatible with the very definitions of “mistake” that governed the Court’s decision. 560 U.S. at 548-49, 130 S.Ct. 2485. The Heglunds urge us to recognize John Doe pleadings as “mistakes” so that plain tiffs with inadequate knowledge will not be subjected to shorter statutes of limitation than plaintiffs who list the wrong defendant in an original complaint. There may well be sound policy arguments for permitting relation back when a plaintiff amends a John Doe" }, { "docid": "16979590", "title": "", "text": "the party to be added (a) received timely notice of the action such that he would not be prejudiced in maintaining a defense on the merits, and (b) knew or should have known that he would have been named as defendant “but for a mistake concerning the proper party’s identity.” Fed.R.Civ.P. 15(c)(1). The district court concluded that the individual committee members were not on notice that they would have been named as defendants but for a mistake concerning their identity. The court did not abuse its discretion in so holding. In both his original complaint and in his first amended complaint, Tatum named as defendants only RJR and the Committees. Tatum’s decision not to include as defen dants the individual committee members reflected “a deliberate choice to sue one party instead of another while fully understanding the factual and legal differences between the two parties.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). This, the Supreme Court has explained, “is the antithesis of making a mistake concerning the proper party’s identity.” Id. Accordingly, the Court has held that Rule 15(c)’s requirements are not satisfied when, as here, “the original complaint and the plaintiffs conduct compel the conclusion that the failure to name the prospective defendant in the original complaint was the result of a fully informed decision.” Id. at 552, 130 S.Ct. 2485. VII. For the foregoing reasons, we affirm the district court’s holding that RJR breached its duty of procedural prudence and so carries the burden of proof on causation, but vacate the judgment in favor of RJR. We reverse the order dismissing the Benefits Committee and the Investment Committee as defendants, but affirm the order denying Tatum’s motion for leave to amend his complaint to add additional defendants. We remand the case for further proceedings consistent with this opinion. AFFIRMED IN PART, VACATED IN PART, REVERSED IN PART, AND REMANDED. . Thus, as a result of the spin-off, there were two funds holding exclusively Nabisco stock: the Nabisco Common Stock Fund, which existed prior to the spin-off, and" }, { "docid": "23220926", "title": "", "text": "would have been against [her], but for a mistake [on Rios’s part] concerning the proper party’s [Diaz’s] identity.” Fed.R.Civ.P. 15(e)(l)(C)(ii); see also Krupski v. Costa Crociere S.p.A., — U.S. -, 130 S.Ct. 2485, 2493-99, 177 L.Ed.2d 48 (2010) (discussing in meticulous detail how the rule works). Rios has not explained what mistake he made on the proper-party front, nor has he explained how Diaz should have known that he would have sued her in the first place but for his unidentified mistake — again, Diaz was Rios’s supervisor, and he certainly knew her role in the alleged harassment. Cf. Krupski, 130 S.Ct. at 2494-96. He has not met his burden and so can find no refuge under the rule. (d) Municipal Liability Rios has shown that a reasonable jury could find a loss of First Amendment rights premised on political discrimination and free-speech retaliation. But not every loss of a constitutional right triggers municipal liability under § 1983. See, e.g., Connick v. Thompson, — U.S. -, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (discussing, among other cases, Monell, 436 U.S. at 691, 692, 98 S.Ct. 2018). Quite the contrary. Liability only attaches where the municipality causes the deprivation through “an official policy or custom.” Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir.2008). One way of establishing a policy or custom is by showing that “a person with final policymaking authority” caused the supposed constitutional injury. Id. at 941, 942 (adding that municipal liability may turn on a single illegal act by an official possessing final policymaking authority over the relevant subject matter). Like other mayors in Puerto Rico, Santini has final policymaking authority for municipal employment generally. See Rodríguez-García, 610 F.3d at 770. Again, the record shows that trialworthy issues exist concerning Santini’s role in depriving Rios of his right to be free from unconstitutional political discrimination and free-speech retaliation — which means the record supports municipal liability on these two theories of constitutional injury too. See id. And to that extent, summary judgment for the municipality was inappropriate. Reconsideration Rios’s contends that the judge erred by not" }, { "docid": "21804201", "title": "", "text": "they did not then know the name of the officer who accessed Jennifer’s information on March 25, 2010. We review de novo the district court’s grant of summary judgment and its interpretation of Rule 15(c). The Heglunds argue that lack of knowledge of the proper party’s identity qualifies as a mistake under Rule 15(c). Scherf and Grand Rapids contend that the Heglunds’ decision to name a John Doe defendant cannot be characterized as a mistake because the Heglunds knew that they lacked knowledge of the defendant’s true identity—there was no misunderstanding or misconception. They argue that the Heglunds intentionally represented their lack of knowledge about the identity of the defendant, so there was no mistake, and the Heglunds’ amended complaint does not relate back under Rule 15(c). In Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010), the Supreme Court reasoned that relation back under Rule 15(c) depends on “what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint.” Id. at 548, 130 S.Ct. 2485. The Court stated that a plaintiffs knowledge is “relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake.” Id. At the same time, however, the Court affirmed that a plaintiffs deliberate choice, made with a full understanding of the legal and factual situation, is “the antithesis of making a mistake.” Id. at 549, 130 S.Ct. 2485. By contrast, a mistake occurs if a plaintiff knows that two or more parties exist but chooses to sue the wrong one based on a misunderstanding about that party’s status or role. Id. The Court defined mistake as “[a]n error, misconception, or misunderstanding; an erroneous belief.” Id. at 548, 130 S.Ct. 2485 (quoting Black’s Law Dictionary 1092 (9th ed. 2009)). It also described a mistake as “a misunderstanding of the meaning or implication of something”; “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention”; “an erroneous belief’; or “a state" }, { "docid": "18950973", "title": "", "text": "injured, App. 23, and also indicated (mistakenly) that Costa Cruise performed those roles, id., at 23-27, Costa Crociere should have known, within the Rule 4(m) period, that it was not named as a defendant in that complaint only because of Krupski’s misunderstanding about which “Costa” entity was in charge of the ship — clearly a “mistake concerning the proper party’s identity.” Respondent contends that because the original complaint referred to the ticket’s forum requirement and presuit claims notification procedure, Krupski was clearly aware of the contents of the ticket, and because the ticket identified Costa Croeiere as the carrier and proper party for a lawsuit, respondent was entitled to think that she made a deliberate choice to sue Costa Cruise instead of Costa Croeiere. Brief for Respondent 18. As we have explained, however, that Krupski may have known the contents of the ticket does not foreclose the possibility that she nonetheless misunderstood crucial facts regarding the two companies’ identities. Especially because the face of the complaint plainly indicated such a misunderstanding, respondent’s contention is not persuasive. Moreover, respondent has articulated no strategy that it could reasonably have thought Krupski was pursuing in suing a defendant that was legally unable to provide relief. Respondent also argues that Krupski’s failure to move to amend her complaint during the Rule 4(m) period shows that she made no mistake in that period. Id., at 13-14. But as discussed, any delay on Krupski’s part is relevant only to the extent it may have informed Costa Crociere’s understanding during the Rule 4(m) period of whether she made a mistake originally. Krupski’s failure to add Costa Croeiere during the Rule 4(m) period is not sufficient to make reasonable any belief that she had made a deliberate and informed decision not to sue Costa Croeiere in the first instance. Nothing in Krupski’s conduct during the Rule 4(m) period suggests that she failed to name Costa Crociere because of anything other than a mistake. It is also worth noting that Costa Cruise and Costa Cro-ciere are related corporate entities with very similar names; “erociera” even means “cruise” in Italian." }, { "docid": "13865249", "title": "", "text": "for abuse of discretion. Powers v. Graff, 148 F.3d 1223, 1226 (11th Cir. 1998). An amended complaint that adds a party or changes the name of a party “relates back” when: (1) the amendment “arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading”; and (2) within the 120-day period for service provided by Rule 4(m), the new party “received such notice of the action that it will not be prejudiced in defending on the merits” and “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(B), (C)(i)(ii); see also Krupski v. Costa Crociere S.P.A., 560 U.S. 538, 548, 130 S.Ct. 2485, 2493, 177 L.Ed.2d 48 (2010). Constructive notice satisfies Rule 15(c)’s requirements and can be imputed to a new defendant through her attorney if that attorney also represents the parties originally sued. Kirk v. Cronvich, 629 F.2d 404, 407-408 (5th Cir. 1980), abrogated on other grounds by Schiavone v. Fortune, AKA Time, Inc., 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). There is no question that Lindley’s amended claims arose out of the same conduct set out in the original complaint. Taylor asserts, however, that she did not have adequate notice “that [she] would have been named a defendant but for an error.” Krupski, 560 U.S. at 548, 130 S.Ct. at 2493. But Lindley’s original complaint named “Nurse Frida” as a defendant in addition to the Birmingham City Jail and a number of Taylor’s coworkers there. The city attorney investigated the incident and filed pleadings on behalf of other defendants named in the original complaint. Once Lindley corrected Taylor’s name to “Nurse Fredia L. Taylor” in his amended complaint, the city attorney undertook her representation as well. On this record, the district court did not abuse its discretion by imputing notice of the action to Taylor. See Kirk, 629 F.2d at 408. Because Taylor should have known that she was not named in the original complaint due" } ]

[ { "docid": "10524136", "title": "", "text": "*8-11 (N.D.Ga. Apr. 21, 2008); In re Applications of the United States of America for Orders Pursuant to Title 18, United States Code, Section 2703(d), 509 F.Supp.2d 76, 80-81 (D.Mass.2007) (\"Steams Opinion”). For cases reaching the opposite conclusion, see, e.g., In re Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 736 F.Supp.2d 578 (E.D.N.Y.2010); In re Application of the United States of America for Historical Cell Site Data, 747 F.Supp.2d 827 (S.D.Tex.2010) (\"Smith II Opinion”), appeal docketed, No. 11-20884 (5th Cir. Dec. 14, 2011) (oral argument held on Oct. 2, 2012); In re Application of the United State of America for an Order Authorizing the Release of Historical Cell-Site Information, 809 F.Supp.2d 113 (E.D.N.Y.2011) (\"Garaufis Opinion”). All of the cases that have found a reasonable expectation of privacy in historical cell-site data have done so in the context of a government application for an order under the SCA, not in response to a motion to suppress such data after it was obtained. . As noted, this case has been argued in the Fifth Circuit and is still pending. See supra note 9. . Prior to the Supreme Court's decision in Jones, several courts applied this analysis to historical cell-site data and determined that the constitutionality of law enforcement’s actions turned on the duration of the period of surveillance in question. See, e.g., Smith II Opinion, 747 F.Supp.2d at 838-40 (finding government request for cell-site records covering 60-day period constituted a Fourth Amendment search under Maynard mosaic theory); Garaufis Opinion, 809 F.Supp.2d at 126 (finding that Maynard mosaic theory constitutes an exception to third-party doctrine where government sought cell-site records for 113-day period); In re Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 2011 WL 679925, at *2 (E.D.N.Y. Feb. 16, 2011) (\"Orenstein Opinion”) (authorizing government to obtain cell-site data for three windows of time — 3 days, 6 days, and 12 days — because such data would not “be as revealing as the sustained month-long moni toring at issue in Maynard\"); Lamberth" } ]

[ { "docid": "14100186", "title": "", "text": "slice of the user’s life, activities, and associations; the D.C. Circuit has required a search warrant for half as much. If the telephone numbers dialed in Smith v. Maryland were notes on a musical scale, the location data sought here is a grand opera. For these reasons, I arrive by a slightly different path at the same destination as my colleagues from Pennsylvania, New York, Massachusetts, Indiana, and Austin, Texas. Compelled warrantless disclosure of cell site data violates the Fourth Amendment under the separate authorities of Karo and Maynard. Accordingly, the Government’s requests for that information under the SCA are denied. . Government Applications (redacted), Exs. 1-3, at 2. All exhibits cited in this opinion are in an appendix, docketed separately in each Magistrate case referenced in the caption. . In re Application for Pen Register and Trap/ Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747, 759 n. 16 (S.D.Tex.2005) (\"By contrast [to prospective cell site data], historical cell site data more comfortably fits the category of transactional records covered by the SCA”). That observation was offered as a matter of statutory interpretation. At the time it was made, my understanding was that providers rarely kept such records (if at all) beyond a week or two. That is apparently no longer the case; Verizon reportedly keeps such records for at least 12 months. Declan McCullagh, Feds Push for Tracking Cell Phones, CNET, Feb. 11, 2010, http://news. cnet.com/8301-13578_3-10451518-38.html (last visited Oct. 28, 2010). For the reasons expressed in this opinion, that earlier interpretation of the SCA is now constitutionally impermissible. . Government's brief, No. H-10-998M (Dkt. 4). . See In re Application of U.S., 384 F.Supp.2d 562 (E.D.N.Y.2005), on reconsideration, 396 F.Supp.2d 294 (E.D.N.Y.2005) (Orenstein, M.J.); In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747 (S.D.Tex.2005) (Smith, M.J.); In re Application of U.S., 402 F.Supp.2d 597 (D.Md.2005) (Bredar, Mag.); In re Application of U.S., 407 F.Supp.2d 132 (D.D.C.2005) (Facciola, M.J.); In re Application of U.S., 405 F.Supp.2d 435 (S.D.N.Y. 2005) (Gorenstein, M.J.). . See In re Application of U.S., 534 F.Supp.2d" }, { "docid": "8250090", "title": "", "text": "of Telecommunications Records and Authorizing the Use of a Pen Register and Trap and Trace, 405 F.Supp.2d 435 (S.D.N.Y.2005) (hereafter \"Gorenstein SDNY 2005 Opinion ”); In re Application of United States for an Order for Prospective Cell Location Information, 460 F.Supp.2d 448 (S.D.N.Y.2006); In re Application of the United States, 433 F.Supp.2d 804 (S.D.Tex.2006) (hereafter \"Rosenthal SD Tex. 2006 Opinion ”); In re Application of the United States for an Order (1) Authorizing Installation of a Pen Register and Trap and Trace Device and (2) Authorizing Release of Subscriber and Other Information, 2007 WL 3036849 (S.D.Tex. Oct. 17, 2007) (hereafter \"Rosenthal SD Tex.2007 Opinion \") (reversing Magistrate Judge Smith’s denial of application for historic and prospective CSLI). . A District Court’s published consideration of the appropriateness of ex parte Court Orders mandating a CSP’s disclosure to the Government of an individual subscriber’s location information on less than a showing of probable cause first appeared in a brief Order by Magistrate Judge Orenstein of the Eastern District of New York in late August, 2005. See Orenstein EDNY Aug. 2005 Order, 384 F.Supp.2d at 563 (rejecting out-of-hand the government’s asserted reliance on provisions under § 2703(c) and concluding, as matter of apparent first impression, that under “only arguably” permissive subsection, § 2703(d), cell phone that produces CSLI revealing general geographic location is \"tracking device” under § 3117 and therefore not \"the contents of an electronic communication” obtainable under the ECPA without probable cause normally required for a warrant) (emphasis added). Shortly thereafter, Magistrate Judge Smith of the Southern District of Texas issued a thorough Opinion providing an extensive review of the statutory history and concluding that prospective cell site data constitutes \"tracking device information” under the ECPA requiring establishment of probable cause. See Smith SD Tex.2005 Opinion, 396 F.Supp.2d 747. At the same time, Judge Or-enstein had been reviewing his earlier decision and issued a much fuller Opinion which corrected his preliminary misstep. See Oren-stein EDNY Oct. 2005 Opinion (holding that request for prospective cell site information was effectively one for installation of tracking device, requiring at least probable cause). Many other" }, { "docid": "110406", "title": "", "text": "be \"in trouble,” and his statements may be used against him. . In Giddins’s (withdrawn) motion to suppress tangible and derivative evidence, Gid-dins also argues that 18 U.S.C. § 2703(c) does not, by its terms, authorize disclosure of cell site location data. ECF No. 18 ¶ 11. Thus, Giddins does not apparently argue that § 2703(c) is facially unconstitutional, but that, as applied here, Giddins's Fourth Amendment rights were violated when the government used § 2703(c) to obtain his cell site location data without a warrant. . Graham is on appeal to the Fourth Circuit, where it has been pending for almost two years. See United States v. Herevia, No. RDB-13-639, 2014 WL 4784321, at *8 n. 8 (D.Md. September 23, 2014). . Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov't, 620 F.3d 304, 317 (3d Cir.2010) (overturning magistrate judge’s denial of a § 2703(d) court order but stating that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and that \"it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information”). . See, e.g., In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F.Supp.2d 113, 126-27 (E.D.N.Y.2011) (finding that the collection of cell site location data implicated the Fourth Amendment and denying government’s application for a court order under § 2703(d) because it lacked probable cause). . But see Graham, 846 F.Supp.2d at 403 (noting that the GPS surveillance in Jones was conducted without a warrant). Graham quoted from Justice Sotomayor’s concurring opinion in Jones: \"I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool [GPS tracking] so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power and prevent a too permeating police surveillance.” Graham, 846 F.Supp.2d at 403 (quoting Jones, 132 S.Ct. at 956 (Soto-mayor, J., concurring) (internal quotation" }, { "docid": "11174995", "title": "", "text": "EDITH BROWN CLEMENT, Circuit Judge: We are called on to decide whether court orders authorized by the Stored Communications Act to compel cell phone service providers to produce the historical cell site information of their subscribers are per se unconstitutional. We hold that they are not. I. FACTUAL AND PROCEDURAL BACKGROUND In early October 2010, the United States filed three applications under § 2703(d) of the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712, seeking evidence relevant to three separate criminal investigations. Each application requested a court order to compel the cell phone service provider for a particular cell phone to produce sixty days of historical cell site data and other subscriber information for that phone. The Government requested the same cell site data in each application: “the antenna tower and sector to which the cell phone sends its signal.” It requested this information for both the times when the phone sent a signal to a tower to obtain service for a call and the period when the phone was in an idle state. In re Application of the United States for Historical Cell Site Data, 747 F.Supp.2d 827, 829 (S.D.Tex.2010). For each application, the magistrate judge granted the request for subscriber information but denied the request for the historical cell site data, despite finding that the Government’s showing met the “specific and articulable facts” standard set by the SCA for granting an order to compel the cell site data. Shortly thereafter, the magistrate judge invited the Government to submit a brief justifying the cell site data applications. Four days after the Government submitted its brief, the magistrate judge issued a written opinion taking judicial notice of a host of facts about cell phone technology, primarily derived from the testimony of a computer science professor at a congressional hearing, but also including information from published studies and reports and service provider privacy policies. He concluded his opinion by declaring that, based on these facts viewed in light of Supreme Court precedent, “[cjompelled warrantless disclosure of cell site data violates the Fourth Amendment.” Id. at 846. The Government filed objections with" }, { "docid": "4865735", "title": "", "text": "“obtainable under at § 2703(d) order”); In re Applications of the United States, 509 F.Supp.2d 76, 79-80 (D.Mass.2007) (historical cell site location information “clearly satisfies” the definitional requirements of § 2703(c) and is therefore obtainable pursuant to a court order issued under § 2703(d)). Magistrate Judge Gauvey of this Court has noted that the type of data at issue in this case is the “least invasive” type of cellular location information and is “commonly sought” under § 2703. In re Application of the United States, 849 F.Supp.2d 526, 573, No. 10-2188-SKG, 2011 WL 3423370, at *38 (D.Md. August 3, 2011). The Defendants in this case do not challenge the Stored Communications Act’s applicability to the cellular location data at issue. As previously mentioned, the “specific and articulable facts” standard contained in the Stored Communications Act is a lesser one than probable cause. See In re Application of the United States, 620 F.3d at 313-15 (3d Cir.2010). While not contesting the Stored Communications Act’s constitutionality on its face, the Defendants contend that when the historical cell site location information sought is sufficiently extensive and prolonged, any order issued under the Act must be obtained pursuant to a warrant issued on a showing of probable cause. C. The Defendants’ Standing The government initially contends that Defendants Graham and Jordan lack standing- to challenge the acquisition of historical cell site location records under the Fourth Amendment. More specifically, the government argues that because Defendant Jordan supplied a fictitious name and address to his cellular service provider, he has demonstrated an intent to distance himself from that phone and its associated records, and therefore he can claim no legitimate expectation of privacy. See Gov. Supp. Br. at 2, ECF No. 70. The government also argues that because Sprint/Nextel, Inc. keeps the location data in the ordinary course of business, neither Defendant can assert a Fourth Amendment challenge to subpoenas directed at the business records of a third party. Id. at 2-3. In Katz v. United States, the Supreme Court held that “the Fourth Amendment protects people, not places. What a person knowingly exposes to" }, { "docid": "11175013", "title": "", "text": "cf. In re Application of the United States, 620 F.3d at 307-08. Thus, the district court held that all § 2703(d) orders for cell site information were unconstitutional, so it had no discretion to grant such an order. See In re Application of the United States, 620 F.3d at 319 (holding, in a case where the magistrate judge below had not ruled on the constitutionality of the SCA, that a magistrate judge has discretion under the statute to require the Government to seek a warrant). Therefore, we cannot avoid the question of whether the SCA’s authorization of § 2703(d) orders under a “specific and articulable facts” standard is constitutional. 2. The constitutional question The Government and the ACLU focus their analysis of the constitutionality of the SCA as applied to historical cell site data on distinct questions. The ACLU focuses on what information cell site data reveals — location information — and proceeds to analyze the § 2703(d) orders under the Supreme Court’s precedents on tracking devices. In contrast, the Government focuses on who is gathering the data — private cell service providers, not government officers — and analyzes the provision under the Court’s business records cases. The ACLU contends that individuals have a reasonable expectation of privacy in their location information when they are tracked in a space, like the home, that is traditionally protected or when they are tracked for a longer period of time and in greater detail than society would expect. The ACLU relies on the concurrences in United States v. Jones, — U.S.-, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), which concluded that prolonged GPS monitoring of a vehicle could constitute a search, id. at 964 (Alito, J., concurring in the judgment) (joined by Justices Ginsburg, Breyer, and Kagan); see id. at 955 (Sotomayor, J., concurring) (expressly agreeing with Justice Alito’s concurrence on this point). The ACLU points out that individuals are only in vehicles for discrete periods, but most people carry cell phones on their person at all times, making the tracking more detailed and invasive. The Government responds that cell site data are" }, { "docid": "15044185", "title": "", "text": "electronic storage and transfer of funds .... ” Id. § 2510(12). . We acknowledge that numerous magistrate judges and district courts in other jurisdictions have addressed various issues regarding whether the Government can obtain prospective CSLI through the authorization found in § 2703(d) alone or in combination with the pen register and trap and trace statutes (the ''hybrid” theory), and/or whether the Government can obtain historical CSLI through a § 2703(d) order. See, e.g., MJOp., 534 F.Supp.2d at 599-600 (discussing “hybrid” theory and citing cases). Some of those cases hold that the government cannot obtain prospective, i.e., realtime, CSLI through the “hybrid” theory. See, e.g., In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device; (2) Authorizing the Release of Subscriber & Other Info.; & (3) Authorizing the Disclosure of Location-Based Seivs., Nos. L06-MC-6-7, 2006 WL 1876847, at *1 (N.D.Ind. July 5, 2006); In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F.Supp.2d 747, 765 (S.D.Tex.2005); In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. & /or Cell Site Info., 396 F.Supp.2d 294, 327 (E.D.N.Y.2005). Others cases hold that the Government may obtain prospective cell site location information through the \"hybrid” theory. See, e.g., In re Application of the United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel., 460 F.Supp.2d 448, 461 (S.D.N.Y.2006); In re Application of the United States for an Order for Disclosure of Telecomm. Records & Authorizing the Use of a Pen Register & Trap & Trace, 405 F.Supp.2d 435, 449 (S.D.N.Y. 2005). Most relevant here, at least two cases expressly hold that historical CSLI can be obtained through a § 2703(d) order. See In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, & (2) Authorizing Release of Subscriber & Other" }, { "docid": "3495153", "title": "", "text": "his calls. The provider uses this data to properly route his call, while the person he is calling does not receive this information. In re U.S. for Historical Cell Site Data, 724 F.3d at 611-12 (internal quotation omitted). The Court agrees with this reasoning and follows the numerous courts that have held that an individual does not have a legitimate expectation of privacy in historical cell site information and thus the protections of the Fourth Amendment do not attach to it. See United States v. Guerrero, 768 F.3d 351, 360-61 (5th Cir.2014) (noting that historical cell site data is not governed by the Fourth Amendment); Rogers, 71 F.Supp.3d at 750, 2014 WL 5152543, at *4 (“Historic electronic location records fit squarely into the type of records the Supreme Court contemplated in Smith.”). See also United States v. Shah, No. 5:13-CR-328, 2015 WL 72118, at *7 (E.D.N.C. Jan. 6, 2015) (finding that historical cell site information “is not protected by the Fourth Amendment”); United States v. Giddins, 57 F.Supp.3d at 494, 2014 WL 4955472, at *10 (D.Md. Sept. 30, 2014) (the defendant’s “Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under 2703(d)”); United States v. Banks, No. 13-CR-40060-DDC, 52 F.Supp.3d 1201, 1206, 2014 WL 4594197, at *4 (D.Kan. Sept. 15, 2014) (“Because the defendants voluntarily conveyed CSLI to service providers as part of a business transaction, the statutory standard in 2703(d) governs and Fourth Amendment protections do not apply to their [cell site data]”). Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir.2010) (reversing magistrate judge’s denial of an order under Section 2703(d) yet noting that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information”). B. Jones Does Not Apply to the Facts Here United States v. Jones, —" }, { "docid": "4865734", "title": "", "text": "Specifically, the statute states that “a governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity ... obtains a court order for such disclosure under subsection (d) of this section.” Id. § 2703(c)(1)(B). A Section 2703 order “may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” Id. § 2703(d) (emphasis added). It is well established that Section 2703(c)(1)(B) of the Stored Communications Act applies to historical cell site location data. See, e.g., In re Application of the United States, 620 F.3d 304, 313 (3d Cir.2010) (holding that historical cell site location information is “obtainable under at § 2703(d) order”); In re Applications of the United States, 509 F.Supp.2d 76, 79-80 (D.Mass.2007) (historical cell site location information “clearly satisfies” the definitional requirements of § 2703(c) and is therefore obtainable pursuant to a court order issued under § 2703(d)). Magistrate Judge Gauvey of this Court has noted that the type of data at issue in this case is the “least invasive” type of cellular location information and is “commonly sought” under § 2703. In re Application of the United States, 849 F.Supp.2d 526, 573, No. 10-2188-SKG, 2011 WL 3423370, at *38 (D.Md. August 3, 2011). The Defendants in this case do not challenge the Stored Communications Act’s applicability to the cellular location data at issue. As previously mentioned, the “specific and articulable facts” standard contained in the Stored Communications Act is a lesser one than probable cause. See In re Application of the United States, 620 F.3d at 313-15 (3d Cir.2010). While not contesting the Stored Communications Act’s constitutionality on its face, the Defendants contend that when the historical cell" }, { "docid": "15455900", "title": "", "text": "violate the Fourth Amendment. This holding accords with that of every other federal appellate court that has considered the Fourth Amendment question before us. Not one has adopted the Defendants’ theory. Three of our sister courts have expressly held, as we do today, that individuals do not have- a reasonable expectation of privacy in historical CSLI records that the government obtains from cell phone service providers through a § 2703(d) order. See United States v. Carpenter, 819 F.3d 880, 887-89 (6th Cir.2016) (holding that “for the same reasons that Smith had no expectation of privacy in the numerical information at issue [in Smith], the defendants have no such expectation in the [CSLI] locational information here”); United States v. Davis, 785 F.3d 498, 511-13 (11th Cir.) (en banc) (holding that defendant has no “objectively] reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wire-lessly connected his calls”), cert. denied, — U.S. -, 136 S.Ct. 479, 193 L.Ed.2d 349 (2015); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) (In re Application (Fifth Circuit)) (holding that the government can use “[s]ection 2703(d) orders to obtain historical cell site information” without implicating the Fourth Amendment (emphasis omitted)). And although the fourth of our sister courts opined that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way,” it held that “CSLI from cell phone calls is obtainable under a § 2703(d) order,” which “does not require the traditional probable cause determination” necessary for a warrant. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313, 317 (3d Cir. 2010) (In re Application (Third Circuit)). Moreover, even in the absence of binding circuit precedent, the vast majority of federal district court judges have reached the same conclusion. Defendants are forced to rely on four inapposite state eases that either interpret broader state constitutional provisions instead of the Fourth Amendment, or do not consider historical CSLI records, or both." }, { "docid": "11175012", "title": "", "text": "paragraph (d). The default rule remains that the judicial officer ‘shall issue’ an order when the government meets its burden.”). Even if the text of the statute supported the ACLU’s argument that magistrate judges have discretion to require the Government to secure a warrant for cell site information, such discretion would be beside the point here. The district court did not simply decide that the Government must secure a warrant in this case. It held, adopting the magistrate judge’s conclusion, that “[wjhen the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause.... The standard under the Stored Communications Act is below that required by the Constitution.” See also Historical Cell Site Data, 747 F.Supp.2d at 846 (concluding that “[cjompelled warrant-less disclosure of cell site data violates the Fourth Amendment,” despite the fact that historical cell site information clearly falls within a category of data for which the SCA requires only a § 2703(d) order); cf. In re Application of the United States, 620 F.3d at 307-08. Thus, the district court held that all § 2703(d) orders for cell site information were unconstitutional, so it had no discretion to grant such an order. See In re Application of the United States, 620 F.3d at 319 (holding, in a case where the magistrate judge below had not ruled on the constitutionality of the SCA, that a magistrate judge has discretion under the statute to require the Government to seek a warrant). Therefore, we cannot avoid the question of whether the SCA’s authorization of § 2703(d) orders under a “specific and articulable facts” standard is constitutional. 2. The constitutional question The Government and the ACLU focus their analysis of the constitutionality of the SCA as applied to historical cell site data on distinct questions. The ACLU focuses on what information cell site data reveals — location information — and proceeds to analyze the § 2703(d) orders under the Supreme Court’s precedents on tracking devices. In contrast, the Government focuses on who is" }, { "docid": "20585537", "title": "", "text": "cellular provider in any meaningful way,” it held that “CSLI from cell phone calls is obtainable under a § 2703(d) order,” which “does not require the traditional probable cause determination” necessary for a warrant. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313, 317 (3d Cir.2010) (In re Application (Third Circuit)). Even in the absence of binding circuit precedent, the vast majority of federal district court judges have reached the same conclusion. Given this near unanimity of federal authority, the majority is forced to rest its holding on three inapposite state cases and three district court opinions— including one that has been vacated, In re Application of U.S. for Historical Cell Site Data, 747 F.Supp.2d 827 (S.D.Tex.2010), vacated, 724 F.3d 600 (5th Cir.2013), and another that involves only prospective and real-time CSLI, In re Application of U.S. for an Order Authorizing Disclosure of Location Info, of a Specified Wireless Tel., 849 F.Supp.2d 526, 535 & n. 4 (D.Md. 2011). In sum, the majority’s holding-lacks support from all relevant authority and places us in conflict with the Supreme Court and three other federal appellate courts. II. Despite the lack.of support for its position, the majority insists that the third-party doctrine does not apply here. The majority maintains that “a cell phone user does not ‘convey’ CSLI to her service provider at all — voluntarily or otherwise — and therefore does not assume any risk of disclosure to law enforcement.” This is the analytical lynchpin of my colleagues’ holding. By my count, they invoke a cell phone user’s asserted lack of “voluntariness” no less than twenty times in their discussion of the third-party doctrine. But my colleagues’ holding that cell phone users do not voluntarily convey CSLI misapprehends the nature of CSLI, attempts to redefine the third-party doctrine, and rests on a long-rejected factual argument and the constitutional protection afforded a communication’s content. A. With respect to the nature of CSLI, there can be little question that cell phone users “convey” CSLI to their service providers. After" }, { "docid": "12633863", "title": "", "text": "case do not require, or warrant, speculation as to the newer technology. . The maps did. not show any cell tower’s coverage radius or display any cell tower’s sectors. . See, e.g., United States v. Willis, 759 F.2d 1486, 1498 (11th Cir.1985) (motel registration records); United States v. Phibbs, 999 F.2d 1053, 1077 (6th Cir.1993) (credit card statements). Those statements not only show lo- . cation at the time of purchase, but also reveal intimate details of daily life, such as shopping habits, medical visits, and travel plans. . The dissent mistakenly argues that we are faced with \"persuasive ... authority on both sides of the debate.... ” Dissenting Op. at 534 n. 2. To purportedly illustrate this, the dissent cites a Third Circuit decision, but that decision did not hold, as the dissent would, that a search warrant is required to obtain historical cell tower location data. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“In re Application (Third Circuit)\"), 620 F.3d 304 (3d Cir.2010). Rather, after the lower courts denied the government’s § 2703(d) application for historical cell tower data, the government appealed and the Third Circuit actually vacated that denial. Id. at 319. The Third Circuit concluded that the SCA itself gave the magistrate judge the discretionary option to require a warrant showing probable cause and that the discretionary warrant option should \"be used sparingly because Congress also included the option of a § 2703(d) order.” Id. The dissent also cites a Florida Supreme Court decision, but that case involved real-time data and did not involve a § 2703(d) order. Tracey v. State, 152 So.3d 504, 507-08 (Fla.2014). . In the Fifth Circuit case, the court stated that the “contractual terms of service and providers' privacy policies expressly state[d] that a provider uses a subscriber’s location information to route his cell phone calls” and, moreover, “that the providers not only use the information, but collect it.” In re Application (Fifth Circuit), 724 F.3d at 613. The government stresses that MetroPCS's privacy policy, accessible from the" }, { "docid": "3495145", "title": "", "text": "outgoing calls and text messages, for Subject Phone 3, for the period from May 1, 2013, through August 14, 2013. (R. 65, Application at 1.) ANALYSIS Defendant Lang objects to the government’s application for historical cell site information and historical toll record information for Subject Phone 3. Defendant contends that the government must obtain a search warrant to obtain the historical cell site information because he has a reasonable expectation of privacy in this information, thus the Fourth Amendment’s warrant requirement applies. In addition, Defendant argues that the government is not entitled to either the historical cell site information or the toll record information because the government has not established that there are reasonable grounds to believe that it is relevant and material to the ongoing criminal investigation. The Court will address each argument in turn after discussing the Stored Communications Act. I. Stored Communications Act The government seeks these records under the Stored Communications Act. 18 U.S.C. § 2703(d). The Stored Communications Act provides that a court may issue an order for disclpsure of historical cell site records “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). In contrast, an application for a search warrant requires the government to establish probable cause, which is a higher standard. See In re Application of the United States Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313 (3d Cir.2010) (concluding that Section 2703(d) standard was “a lesser one than probable cause.”). In United States v. Rogers, No. 13 CR 952, 71 F.Supp.3d 745, 747-48, 2014 WL 5152543, at *2 (N.D.Ill. Oct. 9, 2014), Judge Kocoras recently thoroughly described historical cell site information. As Judge Kocoras explained: Wireless technology operates through a network of cellular towers that emit radio frequencies capable of carrying the human voice and other data. Cellular phones are able to be located in one" }, { "docid": "3495154", "title": "", "text": "(D.Md. Sept. 30, 2014) (the defendant’s “Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under 2703(d)”); United States v. Banks, No. 13-CR-40060-DDC, 52 F.Supp.3d 1201, 1206, 2014 WL 4594197, at *4 (D.Kan. Sept. 15, 2014) (“Because the defendants voluntarily conveyed CSLI to service providers as part of a business transaction, the statutory standard in 2703(d) governs and Fourth Amendment protections do not apply to their [cell site data]”). Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir.2010) (reversing magistrate judge’s denial of an order under Section 2703(d) yet noting that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information”). B. Jones Does Not Apply to the Facts Here United States v. Jones, — U.S. -, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), does not provide otherwise. In Jones, the Supreme Court held that attaching a GPS tracking device to a vehicle and subsequently monitoring the movement of the vehicle constituted a search under the Fourth Amendment. The Supreme Court found that the government had “physically occupied private property for the purpose of obtaining information” when it “trespas-sorily inserted the information-gathering device” onto the vehicle. Id. at 950, 952. Jones did not rely upon the Smith third party doctrine, “let alone purport to desert or limit it.” United States v. Wheelock, 772 F.3d 825, 829 (8th Cir.2014). Instead, it relied on the government’s trespass into the vehicle where the defendant had an expectation of privacy. While one concurring opinion noted that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” because of the “digital age,” the concurrence did not abrogate the third party doctrine. Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring). See also" }, { "docid": "20585536", "title": "", "text": "that information (historical CSLI) pursuant to § 2703(d) orders, rather than warrants, did not violate the Fourth Amendment. Three other federal appellate courts have considered the Fourth Amendment question before us. Not one has adopted the majority’s holding. Two of our sister courts have expressly held, as I would, that individuals do not have a reasonable expectation of privacy in historical CSLI records that the government obtains from cell phone service providers through a § 2703(d) order. See United States v. Davis, 785 F.3d 498, 511 (11th Cir.2015) (en banc) (holding defendant had no “objective[ly] reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls”); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir.2013) (In re Application (Fifth Circuit)) (holding the government can use “[s]ection 2703(d) orders to obtain historical cell site information” without implicating the Fourth Amendment (emphasis omitted)). And although the third court opined that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way,” it held that “CSLI from cell phone calls is obtainable under a § 2703(d) order,” which “does not require the traditional probable cause determination” necessary for a warrant. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313, 317 (3d Cir.2010) (In re Application (Third Circuit)). Even in the absence of binding circuit precedent, the vast majority of federal district court judges have reached the same conclusion. Given this near unanimity of federal authority, the majority is forced to rest its holding on three inapposite state cases and three district court opinions— including one that has been vacated, In re Application of U.S. for Historical Cell Site Data, 747 F.Supp.2d 827 (S.D.Tex.2010), vacated, 724 F.3d 600 (5th Cir.2013), and another that involves only prospective and real-time CSLI, In re Application of U.S. for an Order Authorizing Disclosure of Location Info, of a Specified Wireless Tel., 849 F.Supp.2d 526, 535 & n. 4 (D.Md. 2011). In" }, { "docid": "14100187", "title": "", "text": "That observation was offered as a matter of statutory interpretation. At the time it was made, my understanding was that providers rarely kept such records (if at all) beyond a week or two. That is apparently no longer the case; Verizon reportedly keeps such records for at least 12 months. Declan McCullagh, Feds Push for Tracking Cell Phones, CNET, Feb. 11, 2010, http://news. cnet.com/8301-13578_3-10451518-38.html (last visited Oct. 28, 2010). For the reasons expressed in this opinion, that earlier interpretation of the SCA is now constitutionally impermissible. . Government's brief, No. H-10-998M (Dkt. 4). . See In re Application of U.S., 384 F.Supp.2d 562 (E.D.N.Y.2005), on reconsideration, 396 F.Supp.2d 294 (E.D.N.Y.2005) (Orenstein, M.J.); In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747 (S.D.Tex.2005) (Smith, M.J.); In re Application of U.S., 402 F.Supp.2d 597 (D.Md.2005) (Bredar, Mag.); In re Application of U.S., 407 F.Supp.2d 132 (D.D.C.2005) (Facciola, M.J.); In re Application of U.S., 405 F.Supp.2d 435 (S.D.N.Y. 2005) (Gorenstein, M.J.). . See In re Application of U.S., 534 F.Supp.2d 585 (W.D.Pa.2008) (Lenihan, M.J.), aff'd No. 07-524M, 2008 WL 4191511 (W.D.Pa. Sept. 10, 2008) (McVerry, D.J.), vacated 620 F.3d 304 (3d Cir.2010); In re Application of U.S., Nos. 1:06-MC-6, 1:06-MC-7, 2006 WL 1876847 (N.D.Ind. July 5, 2006) (Lee, D.J.). . See 18 U.S.C. § 2703(d); In re Applications of U.S., 509 F.Supp.2d 76 (D.Mass.2007) (Stearns, D.J.), reversing 509 F.Supp.2d 64 (D.Mass.2007) (Alexander, M.J.); United States v. Suarez-Blanca, No. 1:07-CR-0023-MHS/AJB, 2008 WL 4200156 (N.D.Ga. Apr. 21, 2008) (Baverman, M.J.); United States v. Benford, No. 2:09CR86, 2010 WL 1266507 (N.D.Ind. Mar. 26, 2010) (Moody, D.J.). . In re Application of U.S., No. 10-MJ-00550(JO), 736 F.Supp.2d 578, 2010 WL 3463132 (E.D.N.Y. Aug. 27, 2010) (holding that historical cell site information is protected by the warrant requirement of the Fourth Amendment). . 615 F.3d 544 (D.C.Cir.2010). . In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records, 620 F.3d 304 (3d Cir.2010). . Id. at 312. . ECPA Reform and the Revolution in Location Based Technologies and Services: Hearing" }, { "docid": "20585562", "title": "", "text": "J.); United States v. Benford, No. 09-86, 2010 WL 1266507, at *2-3 (N.D.Ind. Mar. 26, 2010) (Moody, J.); In re Application of the U.S. for an Order Authorizing the Disclosure of Cell Site Location Info., No. 08-6038, 2009 WL 8231744, at *9-11 (E.D.Ky. Apr. 17, 2009) (Wier, Mag. J.); In re Applications of U.S. for Orders Pursuant to Title 18, U.S.Code Section 2703(d), 509 F.Supp.2d 76, 79-82 (D.Mass.2007) (Steams, J.). But see United States v. Cooper, No. 13-00693, 2015 WL 881578, at *6-8 (N.D.Cal. Mar. 2, 2015) (Illston, J.); In re Application of U.S.for an Order Authorizing the Release of Historical Cell-Site Info., 809 F.Supp.2d 113, 120-27 (E.D.N.Y.2011) (Garaufis, J.). . Two of the state cases do not even Interpret the Fourth Amendment, but instead rely on broader state constitutional protections. See Commonwealth v. Augustine, 467 Mass. 230, 4 N.E.3d 846, 858 (2014) (finding \"no need to wade into the[] Fourth Amendment waters” when the court could rely on article 14 of the Massachusetts Declaration of Rights); State v. Earls, 214 N.J. 564, 70 A.3d 630, 641-42 (2013) (explaining that New Jersey has \"departed” from Smith and Miller and does not recognize the third-party doctrine). And the court in the third state case repeatedly pointed out that it was not considering \"historical cell site location records”— like those at issue here — but \"real time cell site location information,\" which had been obtained, not through a § 2703(d) order, but under an order that had authorized only a \"pen register” and “trap and trace device.” Tracey v. State, 152 So.3d 504, 506-08, 515-16, 526 (Fla.2014). Thus, contrary to my colleagues' charge, it is not the dissent, but rather cases on which the majority relies, thát \"have suggested” that there are different privacy interests in \"real-time” versus \"historical” location information. See id..; see also In re Application of U.S. for an Order Authorizing Disclosure of Location Info, of a Specified Wireless Tel., 849 F.Supp.2d 526, 535-39 (D.Md.2011). . My colleagues also emphasize the general \"sensitivity]” of location information. But to the extent they do so to argue that the third-party doctrine" }, { "docid": "11175005", "title": "", "text": "of the United States, 427 F.2d 639, 642 (9th Cir.1970). The Third Circuit also appears to have based its jurisdiction to review a denial of a § 2703(d) order on § 1291. See In re Application of the United States for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304 (3d Cir.2010); see also Wright, Miller & Cooper, 15B Fed. Prac. & Proc. § 3919.9 (2d ed.) (“Denial of a government application for a search warrant concludes the only matter in the district court.... Appeal is available as from a final decision.”). But see United States v. Savides, 658 F.Supp. 1399, 1404 (N.D.Ill.1987), aff'd sub nom. United States v. Pace, 898 F.2d 1218 (7th Cir.1990) (“[T]he government has no right to appeal if it believes the magistrate erred in denying the warrant.”). We proceed under § 1291, recognizing that an application for this type of order is an independent proceeding, not tied to any current criminal case, and that denying or granting the order finally disposes of the proceeding. B. Fourth Amendment challenge The district court held that the SCA violates the Fourth Amendment because the Act allows the United States to obtain a court order, compelling a cell phone company to disclose historical cell site records merely based on a showing of “specific and articulable facts,” rather than probable cause. We review, this ruling, applying Katz v. United States and its progeny to determine whether the Government’s acquisition of these electronic records constitutes a search or a seizure subject to the Fourth Amendment’s probable cause. 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The SCA regulates disclosure of stored electronic communications by service providers. With regard to compelled disclosure of non-content records or other subscriber information, the Act requires the Government to, as relevant here, secure either a warrant or a court order for the records. 18 U.S.C. § 2703(c). If the Government seeks a court order, such an order: [M]ay be issued by any court that is a court of competent jurisdiction and shall issue only if" }, { "docid": "15044140", "title": "", "text": "OPINION OF THE COURT SLOVITER, Circuit Judge. The United States (“Government”) applied for a court order pursuant to a provision of the Stored Communications Act, 18 U.S.C. § 2703(d), to compel an unnamed cell phone provider to produce a customer’s “historical cellular tower data,” also known as cell site location information or “CSLI.” App. at 64. The Magistrate Judge (“MJ”) denied the application. See In re Application of the United States for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 534 F.Supp.2d 585, 616 (W.D.Pa. 2008) (hereafter “MJOp.”). In doing so, the MJ wrote an extensive opinion that rejected the Government’s analysis of the statutory language, the legislative history, and the Government’s rationale for its request. On the Government’s appeal to the District Court, the Court recognized “the important and complex matters presented in this case,” but affirmed in a two page order without analysis. In re Application of the United States for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, No. 07-524M, 2008 WL 4191511, at *1 (W.D.Pa. Sept.10, 2008). The Government appeals. We have de novo review. See DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir.2007). This appeal gives us our first opportunity to review whether a court can deny a Government application under 18 U.S.C. § 2703(d) after the Government has satisfied its burden of proof under that provision, a task that to our knowledge has not been performed by any other court of appeals. I. The growth of electronic communications has stimulated Congress to enact statutes that provide both access to information heretofore unavailable for law enforcement purposes and, at the same time, protect users of such communication services from intrusion that Congress deems unwarranted. The Stored Communications Act (“SCA”), was enacted in 1986 as Title II of the Electronic Communications Privacy Act of 1986 (“ECPA”), Pub.L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended at 18 U.S.C. §§ 2701-2711 (2010)), which amended the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”), Pub.L. No. 90-351," } ]

[ { "docid": "23406928", "title": "", "text": "cert. denied, 488 U.S. 924, 109 S.Ct. 305, 102 L.Ed.2d 324 (1988). II. Casper contends that the government exercised its peremptory challenges against “minority” jurors in contravention of the Supreme Court’s holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson and its progeny, the Supreme Court set forth the factors necessary to make a prima facie showing of racial discrimination. First, the defendant must show that the challenged jurors were members of a cognizable racial or ethnic group. United States v. DiPasquale, 864 F.2d 271, 277 (3d Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). Then the defendant must show that the relevant facts and circumstances of the case raise an inference that the prosecution used its peremptory challenges to exclude members of the ve-nire from the petit jury on account of their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Relevant circumstances include “(1) the fact that peremptory challenges permit a prosecutor predisposed to discriminate to do so; (2) any other pattern of discriminatory conduct; and (3) any prosecutorial statements.” United States v. Clemons, 843 F.2d 741, 746 (3d Cir.), cert. denied, 488 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988). If the defendant makes out a pri-ma facie case, the burden shifts to the prosecution to come forward with some neutral explanation for challenging black members of the venire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. A race neutral explanation means an explanation based on something other than the race of the juror. Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 1966, 114 L.Ed.2d 395 (1991) (plurality). At this stage the issue focuses on the facial validity of the prosecutor’s explanation. Thus unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. Id. The Batson Court stated that explanations must be “clear and reasonably specific.” 476 U.S. at 98 & n. 20, 106 S.Ct. at 1724 & n. 20. Explanations based on a prosecutor’s mere “good faith” or “intuition” do not" } ]

[ { "docid": "6592690", "title": "", "text": "reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (alteration omitted) (internal quotation marks omitted). The explanation need not be “persuasive, or even plausible.” Id. Showing that discriminatory intent is inherent in the proffered reason as a matter of law requires more than a showing that the prosecutor’s proffered reason has a racially disproportionate'impact, Hernandez, 500 U.S. at 359-60, 111 S.Ct. 1859 (plurality opinion); id. at 373-74, 111 S.Ct. 1859 (O’Connor, J., concurring in the judgment), or is related to the issue of race, see United States v. Payne, 962 F.2d 1228, 1233 (6th Cir.) (“affirm[ing] the district court’s finding that the prosecutor offered a valid neutral explanation” when the prosecutor stated that two black jurors were excused “not because of their race but because of the advocacy groups [NAACP and Black Caucus] to which they belonged”), cert. denied, 506 U.S. 909, 113 S.Ct. 306, 121 L.Ed.2d 229 (1992), and 506 U.S. 1033, 113 S.Ct. 811, 121 L.Ed.2d 684 (1992). Akins argues that “[t]he only inference that could conceivably have supported a strike based upon [Juror D’s] comments is that [she], as an African-American expressing such views, would be more sympathetic to an African-American defendant than a similarly situated white juror.” Appellant Br. at 21. He argues that such inference is contrary to Batson, in which the Court stated that “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.” 476 U.S. at 97, 106 S.Ct. 1712. The Fifth Circuit and the Ninth Circuit have rejected similar arguments that striking a juror because of the juror’s expressed views on race in the criminal justice system is the same as striking the juror because of the juror’s race. See Tolbert v. Gomez, 190 F.3d 985, 987, 989 (9th Cir.1999) (rejecting argument because the defendant “failed to establish that [the juror’s] opinions about the importance" }, { "docid": "23707704", "title": "", "text": "decide ... whether the opponent of the strike has proved purposeful racial discrimination.’ ” Id. (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam)). In United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir.1991), we stated that “the first issue of whether a prima facie case of discrimination exists becomes moot whenever the prosecutor offers a race-neutral explanation for his peremptory challenges and the trial court rules on the ultimate factual issue of whether the prosecutor intentionally discriminated.” Because the district court in this case proceeded, albeit summarily, through each of the three steps of the Batson framework, we will, consistent with our decision in Johnson, focus solely on the last two steps of that framework. Turning first to the government’s proffered reasons for striking the two African-American jurors, we review de novo whether those explanations were race neutral. Nelson, 450 F.3d at 1207. A race-neutral explanation is simply any explanation, no matter how implausible, that is “based on something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The proffered reason need not be “persuasive, or even plausible,” so long as it is facially valid. Purkett, 514 U.S. at 768,115 S.Ct. 1769. We readily conclude that the government offered race-neutral reasons for striking both Juror 134 (the second African-American juror), as well as Juror 3 (the first African-American juror); In particular, the government indicated that it had, taking into account juror attentiveness, decisiveness, intelligence, patience, honesty, and other non-race-based factors, developed a system pursuant to which it rated each of the sixty-four prospective jurors, and that Juror 134 was simply next in line to be struck under its overall ratings of the potential jurors. Aside from its rating system rationale, the government also expressed two related concerns regarding Juror 134: during the death-qualification process, the government had to ask Juror 134 to speak up, and, despite doing so, government counsel was unable to hear some of Juror 134’s answers during that process. As for Juror 3, the" }, { "docid": "23031695", "title": "", "text": "Purkett, steps two and three are independent inquiries that may not be collapsed into one, and “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” 514 U.S. at 768, 115 S.Ct. 1769. There is no dispute that Kesser made a prima facie showing of group bias when he objected that three of the prosecutor’s peremptory challenges were used to exclude the only Native Americans in the pool. It is immaterial that the trial court made no explicit finding that Kesser had satisfied his Batson step-one burden, because “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.” Hernandez, 500 U.S. at 359, 111 S.Ct. 1859 (plurality opinion). The state likewise no longer disputes the presence of one race-based reason for striking Rindels. Without question, the prosecutor’s assessment of how Native Americans employed by a tribe view the criminal justice system reflects stereotypical bias that is inherently discriminatory. To this extent, his explanation is not facially valid. However, the court of appeal identified four other facts upon which the prosecutor’s explanation was also based that are race-neutral. Kesser contends that, assuming these other reasons are indeed race-neutral, their presence does not matter because ethnicity can play no role in the jury selection process. The Supreme Court has never held that a prosecutor’s explanation must be based entirely on race-neutral reasons. “A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror.” Id. at 360, 111 S.Ct. 1859. At this stage, we assume the truth of the proffered reasons, and consider whether, as a matter of law, the challenge violates the Equal Protection Clause. Id. at 359, 111 S.Ct. 1859. The Court has clearly said that the prosecutor’s burden at step two is to come forward with a race-neutral explanation. See Miller-El v. Cockrell, 537 U.S. 322, 328, 123 S.Ct." }, { "docid": "23449016", "title": "", "text": "discussed the framework for analyzing a defendant’s claim of discriminatory use of peremptory challenges, established by Batson in the context of a claim of discrimination based on race: ... Batson ... outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S., at 96-98.... First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id., at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id., at 97-98. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id., at 98. Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859 (plurality opinion). As to the prosecution’s burden to proffer a neutral explanation, the Court has stated that “[ujnless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (internal quotation marks omitted). Discriminatory intent may be found to be inherent where the proffer of a supposedly race-neutral explanation has a racial ingredient. See, e.g., Walker v. Girdich, 410 F.3d 120, 123 (2d Cir.2005) (ordering a new trial where the prosecutor began her proffer by stating that “ ‘one of the main things [she] had a problem with was that this [wa]s an individual who was a Black man with no kids and no family ’ ” (quoting prosecutor) (emphasis in Walker)). Since “ ‘a finding [as to whether there was] intentional discrimination is a finding of fact,’ ” and the “trial court findings ... in this context ... ‘largely will turn on evaluation of credibility,’ ” Hernandez, 500 U.S. at 364, 365, 111 S.Ct. 1859 (plurality opinion) (quoting Batson, 476 U.S. at 98 n.21, 106 S.Ct. 1712) (other internal quotation marks omitted), the trial court’s finding as to whether the prosecutor’s reason was race-neutral may be overturned only if that finding is" }, { "docid": "23567471", "title": "", "text": "proceeding and has failed to post an appeal bond. See United States v. O’Bryant, 775 F.2d 1528, 1532 (11th Cir.1985). . The District Court applied the Guidelines in effect at the time of the offense rather than those in effect at the time of sentencing to avoid ex post facto application of the law. KAREN NELSON MOORE, Circuit Judge, dissenting. I disagree with the majority’s conclusion that the United States has produced a neutral explanation for its use of a peremptory challenge to exclude Juror 298 from Watford’s jury. Accordingly, I respectfully dissent. The majority is correct in stating that Watford must be presumed to have established a prima facie case of purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (holding that a prosecutor’s proffer of a race-neutral justification for a challenged peremptory strike renders moot the question whether the defendant first established a prima facie claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)); Lancaster v. Adams, 324 F.3d 423, 434-35 (6th Cir.2003) (applying the Hernandez rule). The majority errs, however, in stating that, in this case, the government has proffered a race-neutral explanation with regard to Juror 298. On the contrary, the government has admitted that it “struck that one in error,” Joint Appendix (“J.A.”) at 202 (Voir Dire Tr. at 41), because the prosecutor “had a question mark by [the juror’s name] for reasons unknown, ” id. at 202 (Voir Dire Tr. at 41) (emphasis added). Indeed, the prosecutor went even further at the Batson hearing, stating, “I don’t see any reason to strike the person. Probably a good juror.” Id. at 203 (Voir Dire Tr. at 42). The majority misinterprets my argument as holding that “a mistaken belief will not satisfy the second prong of a Bat-son analysis where the peremptory strike appears to be racially based.” Maj. Op. at 912. This characterization obscures the vitally important distinction between a peremptory strike motivated by an erroneous belief and a peremptory strike erroneously exercised. The majority mistakes the latter for the" }, { "docid": "23031699", "title": "", "text": "race-neutral and partly not. If anything, the plurality in Hernandez suggests the opposite. There, the prosecutor offered an explanation — language ability — for striking two prospective jurors that could be impermissible stereotyping, but also explained that their specific responses and demeanor caused him to doubt their ability to defer to the official translation. The Court noted that the prosecutor did not rely on language ability without more, and that whether the race-neutral grounds are pretextual should be sorted out at stage three. 500 U.S. at 360, 363-65, 111 S.Ct. 1859. The Court’s recent opinion in Rice v. Collins, — U.S.-, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), is also instructive. After the defendant had made a prima facie showing of racial discrimination in jury selection, the prosecutor offered various reasons for a strike, including a constitutionally impermissible gender-based reason. Reversing this court’s view that the trial court should have questioned the prosecutor’s credibility because of her attempt to use gender, the Court explained: The panel majority assigned the gender justification more weight than it can bear. The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race. Id. at 6 (emphasis added). Like the Hernandez plurality, Rice indicates that the ultimate burden of persuasion remains on the opponent of the strike to show discrimination even when mixed motives are present. Kesser also argues that our own decisions apply Batson when one of the explanations provided by the prosecutor is not race-neutral, relying upon United States v. De Gross, 913 F.2d 1417 (9th Cir.1990); United States v. Omoruyi, 7 F.3d 880 (9th Cir.1993); and United States v. Bishop, 959 F.2d 820 (9th Cir.1992). These are pre-AEDPA, direct appeal cases that do not illuminate what constitutes clearly established federal law as determined by the Supreme Court. As the Court advised in Williams, “[i]f this Court has not broken sufficient legal ground to establish an asked-for constitutional principle," }, { "docid": "6592689", "title": "", "text": "crime, their thoughts about blacks, and whether they had ever been robbed by a black person.” Groomes, 2000 WL 1133542, at *10; see also R.36, Add. 3 (DVD 3 at 2:05:54-2:08:05, 2:45:20-2:47:55). The state court did not explain its analysis of step two of Batson and referenced the prosecutor’s third proffered reason only when recounting that the trial court “asked [Juror D] about her answers related to race” during the individual voir dire. Groomes, 2000 WL 1133542, at *12. Akins argues that the state court’s conclusion that “the prosecution articulated race-neutral reasons for striking [Juror D],” id., is contrary to the Supreme Court’s decisions in Batson and Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). A race-neutral reason is “an explanation based on something other than the race of the juror.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859 (plurality opinion). “At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (alteration omitted) (internal quotation marks omitted). The explanation need not be “persuasive, or even plausible.” Id. Showing that discriminatory intent is inherent in the proffered reason as a matter of law requires more than a showing that the prosecutor’s proffered reason has a racially disproportionate'impact, Hernandez, 500 U.S. at 359-60, 111 S.Ct. 1859 (plurality opinion); id. at 373-74, 111 S.Ct. 1859 (O’Connor, J., concurring in the judgment), or is related to the issue of race, see United States v. Payne, 962 F.2d 1228, 1233 (6th Cir.) (“affirm[ing] the district court’s finding that the prosecutor offered a valid neutral explanation” when the prosecutor stated that two black jurors were excused “not because of their race but because of the advocacy groups [NAACP and Black Caucus] to which they belonged”), cert. denied, 506 U.S. 909, 113 S.Ct. 306, 121 L.Ed.2d 229 (1992), and 506 U.S. 1033, 113 S.Ct. 811, 121 L.Ed.2d 684 (1992). Akins argues that" }, { "docid": "23031698", "title": "", "text": "that a prosecutor’s exercise of peremptory challenges based in part on racial considerations violates the Equal Protection Clause. They would have held that Bat-son’s requirement of a “neutral” explanation “means just what it says — that the explanation must not be tainted by any impermissible factors.” Id. at 928, 110 S.Ct. 292. However, the Court has not declared this to be the rule, so it cannot be “contrary to ... clearly established Federal law, as determined by the Supreme Court,” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (quoting 28 U.S.C. § 2254(d)(1)) (omission in original), for the California Court of Appeal to proceed to step three. Nor can I say that the court of appeal decision is an “unreasonable application” of Supreme Court law. Kesser maintains that Batson and its progeny have made clear that a state may not voice racism as a factor in selecting a juror but the Court has not held that step three may be skipped if the reasons produced at step two are (or may be construed as) partly race-neutral and partly not. If anything, the plurality in Hernandez suggests the opposite. There, the prosecutor offered an explanation — language ability — for striking two prospective jurors that could be impermissible stereotyping, but also explained that their specific responses and demeanor caused him to doubt their ability to defer to the official translation. The Court noted that the prosecutor did not rely on language ability without more, and that whether the race-neutral grounds are pretextual should be sorted out at stage three. 500 U.S. at 360, 363-65, 111 S.Ct. 1859. The Court’s recent opinion in Rice v. Collins, — U.S.-, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), is also instructive. After the defendant had made a prima facie showing of racial discrimination in jury selection, the prosecutor offered various reasons for a strike, including a constitutionally impermissible gender-based reason. Reversing this court’s view that the trial court should have questioned the prosecutor’s credibility because of her attempt to use gender, the Court explained: The panel majority assigned the gender justification more weight than it" }, { "docid": "23083527", "title": "", "text": "765, 768-69, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. Perry’s clearly inappropriate courtroom behavior and its potential effect on King’s ability to serve as a juror are in no way related to race, and, thus, the proffered reason crosses this modest threshold. See, e.g., Purkett, 514 U.S. at 769, 115 S.Ct. 1769 (finding prosecutor’s explanation that strikes of black jurors were based on beards and long, unkempt hair to be race-neutral for purposes of the second Batson way station). This leaves the third, and final, determination: whether the appellants have proven that the strike constituted racial discrimination. This decision boils down to whether the appellants have convinced the district court that the race-neutral explanation furnished by the government rings hollow. Because the question is intensely fact-driven and the answer often pivots on credibility, appellate tribunals must scrutinize the trial court’s response under a highly deferential glass. See Hernandez, 500 U.S. at 364-65, 111 S.Ct. 1859; Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. In this case, the trier credited the government’s explanation: I have heard the explanation of the Government and I have observed [the prosecutor’s] reaction to Mr. Perry’s applause. And I cannot say that [the prosecutor’s] challenge here is based on race. [His] challenge is based, as he says, on conduct and on the concern that he has — -and quite frankly, that the Court has — as to what effect Mr. Perry’s misbehavior would have on Juror King.... The judge also 'noted that she had observed no pattern of discrimination in the government’s use of its peremptory challenges — a fact that may be entitled to special weight in determining whether a prosecutor’s race-neutral explanation for a peremptory challenge is pretextual. See Hernandez, 500 U.S. at 363, 111 S.Ct. 1859. The appellants urge us to hold that Judge Lisi committed clear error in upholding the prosecutor’s strike. They assert that she misunderstood the applicable legal standard, but the record belies this ipse dixit. They also harp on the prosecutor’s earlier statement that he might consider" }, { "docid": "15464216", "title": "", "text": "state criminal defendant can establish a prima facie case of purposeful racial discrimination in the selection of jurors by showing that he is a member of a cognizable racial group, that a challenge has been exercised to remove a venireperson of the same race, and any additional facts and circumstances from which an inference could be drawn that the prosecutor had used the peremptory challenge in a race-based manner. Batson, 476 U.S. at 96, 106 S.Ct. 1712. The defendant is entitled to rely on the fact that the peremptory challenge process is one in which those who are of a mind to discriminate on the basis of race are able to do so. Id. The burden then shifts to the proponent to articulate a race-neutral reason for the challenge. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Finally, the trial court must determine if the opponent has carried his burden of proving purposeful discrimination. Purkett, 514 U.S. at 767, 115 S.Ct. 1769; Hernandez, 500 U.S. at 359, 111 S.Ct. 1859. The trial court should consider all relevant circumstances including, if applicable, whether the prosecutor has demonstrated a pattern of striking minority veni-re members and whether the prosecutor’s statements and questions during voir dire support an inference of discrimination. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Other relevant circumstances can include “1) the racial composition of the initial group seated and the final jury panel sworn; 2) the number of peremptory strikes allowed each side; and 3) the race of those who were struck or excused from the jury panel throughout the voir dire (whether for cause or by a peremptory challenge), the order of strikes, and by whom they were exercised; [plus] ... the percentage of the ‘cognizable racial group’ in the jury pool, or the racial composition of the district wherein the jury pool is selected.” U.S. v. Sangineto-Miranda, 859 F.2d 1501, 1520 (6th Cir.1988). A trial judge’s conclusion that the challenge was race-neutral is accorded a" }, { "docid": "8391876", "title": "", "text": "mind to discriminate.’ ” Id. (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953)). Ultimately, the defendant, relying on this presumption and other facts, must “raise an inference that the prosecutor used [the practice of peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. Second, once the defendant has raised the necessary inference, “the burden shifts to the state to come forward with a neutral explanation for challenging [potential] jurors.” Id. at 97, 106 S.Ct. 1712. “The government is not required to persuade the court that its reasons for dismissing the juror were well-founded; rather it need only demonstrate that its reasons were race-neutral.” Copeland, 321 F.3d at 599. More specifically, The second step of this process does not demand an explanation that is persuasive or even plausible. ‘At this ... step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ Purkett, 514 U.S. at 767-68, 115 S.Ct. 1769 (quoting Hernandez, 500 U.S. at 360, 111 S.Ct. 1859). Third, the party opposing the strike must demonstrate that the prosecutor's purported explanation is merely a pretext for racial motivation. See McCurdy, 240 F.3d at 521 (describing Batson test). Ultimately, the court must determine \"whether the defendant has carried his burden of proving purposeful discrimination.\" Hernandez, 500 U.S. at 359, 111 S.Ct. 1859. In making this determination, the court presumes that the facially valid reasons proffered by the prosecution are true. Id. at 359-60, 111 5.Ct. 1859. Racially discriminatory purpose or intent must be affirmatively shown by the opponent of the strike. Id. at 360, 111 S.Ct. 1859. The ultimate burden of persuasion always remains with the opponent of the strike. See United States v. McFerron, 163 F.3d 952, 955 (6th Cir.1998). C. Analysis Respondent argues that the district court erred in finding that the decisions of the Michigan trial and appellate courts were contrary to and unreasonable applications of clearly established Supreme Court precedent. The Michigan" }, { "docid": "23031626", "title": "", "text": "(internal quotation marks omitted)). A court need not find all nonracial reasons pretextual in order to find racial discrimination. “[I]f a review of the record undermines the prosecutor’s stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.” Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.2003); see also United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir.1989) (“Thus, the court is left with only two acceptable bases for the challenges .... Although these criteria would normally be adequately ‘neutral’ explanations taken at face value, the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency.”). Ill The “ ‘totality of the relevant facts’ ” in this case includes the prosecutor’s statements about his jury selection strategies and his explanations (racial and nonracial) for striking minority jurors. Hernandez, 500 U.S. at 363, 111 S.Ct. 1859 (quoting Davis, 426 U.S. at 242, 96 S.Ct. 2040). They also include the characteristics of people he did not challenge. “If a prosecutor’s proffered reason for striking a [minority] panelist applies just as well to an otherwise-similar [nonminority] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El, 125 S.Ct. at 2325. The Court in Miller-El applied comparative juror analysis to a case originally tried in 1986, remanded for a Batson hearing in 1988, and appealed under AEDPA in 2000. The Court’s holding means that the principles expounded in Miller-El were clearly established Supreme Court law for AEDPA purposes at least by the time of the last reasoned state court decision in Miller-El, handed down in 1992, before Kesser’s 1993 trial. In this case, an evaluation of the voir dire transcript and juror questionnaires clearly and convincingly refutes each of the prosecutor’s nonracial grounds, compelling the conclusion that his actual and only reason for striking Rindels was her race. The dissent argues that a comparative juror analysis is not warranted here, because Kesser “did not press a comparative analysis at trial and developed no factual basis" }, { "docid": "22290815", "title": "", "text": "States v. Hartsfield, 976 F.2d 1349, 1356 (10th Cir.1992) (citing Powers v. Ohio, 499 U.S. 400, 404-05, 111 S.Ct. 1364, 1367, 113 L.Ed.2d 411 (1991)), cert. denied, — U.S. -, 113 S.Ct. 1344, 122 L.Ed.2d 727 (1993), meeting that burden is irrelevant in cases, such as this, where “the prosecutor offers a race-neutral explanation for [the use of] the peremptory challenges and the trial court rules on the ultimate factual issue of whether the prosecutor intentionally discriminated.” Johnson, 941 F.2d at 1107 (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991)). In the present case, the reasons advanced by the prosecution as to why it elected to strike Ms. Roland are facially race-neutral. The proffered reasons related to the prospective juror knowing the defendant, being acquainted with a witness, and being familiar with the subject matter of the trial. These reasons are clearly unrelated to the race of the venireperson, and this is sufficient under Hernandez and its progeny to constitute a facially race neutral explanation. See Hernandez, 500 U.S. at 359-60, 111 S.Ct. at 1866. Moreover, although the district court believed this was a “close case,” it concluded no Batson violation had occurred. While the defendants may not believe the prosecutor’s reasons were satisfactory, that does not change the fact that those reasons are legally sufficient under applicable precedent to dispel any claim of an equal protection violation. Furthermore, there has been no showing regarding how or why these reasons were pre-textual. In the absence of any evidence of pretext, we simply have no basis for overturning the district court’s finding that there was no intentional discrimination in the jury selection. Our conclusion that no Batson violation occurred is bolstered by the fact the prosecution retained an African-American on the jury. We have previously noted that “although the mere presence of members of a certain race on the final jury does not automatically negate a Batson violation, ... it can be a relevant factor, particularly when the prosecution had the opportunity to strike them.” United States v. Esparsen, 930 F.2d 1461," }, { "docid": "16623878", "title": "", "text": "the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two).” Elem, 514 U.S. at 767, 115 S.Ct. at 1770. Batson’s second step “does not demand an explanation that is persuasive, or even plausible.” Id. at 768, 115 S.Ct. at 1771. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866. As set out above, the state presented the prosecutor’s notes from voir dire, the testimony of Ms. Adams, and the testimony of the prosecutor to establish that Alabama’s reasons for striking six black jurors were valid and race-neutral. After considering the state’s explanations, the District Court concluded the “prosecutor’s explanations for striking jurors are credible, valid and race-neutral.” We cannot say the District Court committed any error in finding that the state satisfied its low burden at Batson’s second step. The explanations offered by the state for its strikes are facially valid and race-neutral. See Elem, 514 U.S. at 768, 115 S.Ct. at 1771 (“It is not until the third step that the persuasiveness of the justification becomes relevant....”). Indeed, Mr. Madison does not dispute that the state’s proffered reasons are race-neutral. Rather, he argues the prosecutor’s reasons were pretextual. C. Batson’s Third Step Once a race-neutral explanation is tendered at Batson’s second step, “the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” Elem, 514 U.S. at 767, 115 S.Ct. at 1770-71. The burden on Mr. Madison at Bat-son’s third step is to prove purposeful discrimination by a preponderance of the evidence. See Johnson, 545 U.S. at 170, 125 S.Ct. at 2417 (“Thus, in describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was improperly motivated.”). The objecting party" }, { "docid": "6592688", "title": "", "text": "of producing a legally sufficient race-neutral explanation under step two of Batson is contrary to clearly established Supreme Court law because the impermissible race-based reason “taints” the other race-neutral reasons. Alternatively, he argues that the legal standard applied by the state court to determine discriminatory intent at step three — requiring that the prosecution’s decision to strike a juror be motivated solely by race — is contrary to clearly established Supreme Court law. The state responds that the prosecutor’s third reason was not impermissibly race based and that the Supreme Court has not required the legal standard that Akins asserts is constitutionally required. a. Batson Step Two: Whether the Prosecutor’s Explanation Was Race Neutral Akins argues that the prosecutor’s third proffered reason was not race neutral and that the impermissible race-based reason “taints” the other race-neutral reasons. The prosecutor stated that the third reason he wanted to strike Juror D is because “she indicated that, if she was a lawyer in this case, she would want to know how a juror felt about blacks and crime, their thoughts about blacks, and whether they had ever been robbed by a black person.” Groomes, 2000 WL 1133542, at *10; see also R.36, Add. 3 (DVD 3 at 2:05:54-2:08:05, 2:45:20-2:47:55). The state court did not explain its analysis of step two of Batson and referenced the prosecutor’s third proffered reason only when recounting that the trial court “asked [Juror D] about her answers related to race” during the individual voir dire. Groomes, 2000 WL 1133542, at *12. Akins argues that the state court’s conclusion that “the prosecution articulated race-neutral reasons for striking [Juror D],” id., is contrary to the Supreme Court’s decisions in Batson and Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). A race-neutral reason is “an explanation based on something other than the race of the juror.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859 (plurality opinion). “At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the" }, { "docid": "7992528", "title": "", "text": "races might react in a case like this. However, the prosecutor’s\" proffered reasons for striking Mandujano and Cerda, which centered on their lack of responsibility, were race neutral. With respect to the third step, Sims first contends that the California Supreme Court did not cure the trial court’s incorrect articulation of the legal standard. Even under de novo review, however, we conclude that the record demonstrates that there was no Batson error. Sims argues that the pretextual nature of the prosecutor’s explanations is manifest in the racially disparate pattern of his peremptory challenges, his explicit race-based strategy, and a comparative analysis of the struck jurors with empaneled jurors. Although discriminatory intent may be inferred from the fact that the prosecutor exercised four of his first twelve peremptory challenges to strike jurors with Hispanic surnames, see Hernandez, 500 U.S. at 363, 111 S.Ct. 1859, at least one Híspame-surnamed member of the venire was empaneled. This might indicate that the prosecutor’s motive \"was non-discriminatory. See Turner v. Marshall, 121 F.3d 1248, 1254 (9th Cir.1997). As we have already discussed, the prosecutor commented that he had no reason to strike minority jurors, and in fact had a black and Hispanic witness. See Hernandez, 500 U.S. at 370, 111 S.Ct. 1859 (noting that the ethnicity of victims and prosecution witnesses could be taken as evidence of the prosecutor’s sincerity). Finally, the prosecutor explained that he struck Cerda and Mandujano because he doubted their capacity to exercise the responsibility of jurors in a capital case. The Supreme Court recently made clear that “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove discrimination to be considered at Batson’s third step.” Miller-El v. Dretke, — U.S. -, -, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005). In Miller-El, comparative analysis undermined the proffered race-neutral bases for striking two black veniremen because non-blacks who served on the jury should have been excluded for the same reasons. However, here, the prosecutor’s explanation for striking Cerda and Mandujano was consistent" }, { "docid": "7992527", "title": "", "text": "out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Third, if a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California, — U.S.-,-, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005) (internal quotations and citations omitted). Here, there is no issue about the first step, as the trial court had no occasion to rule on whether a prima facie case had been made out because the prosecutor moved directly to step two. In these circumstances, “the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Nor is there much of an issue about the second step. Sims acknowledges that the prosecutor’s 'explanation does not need to be persuasive, and argues only that it apparently proceeded from stereotypical assumptions about how jurors of particular races might react in a case like this. However, the prosecutor’s\" proffered reasons for striking Mandujano and Cerda, which centered on their lack of responsibility, were race neutral. With respect to the third step, Sims first contends that the California Supreme Court did not cure the trial court’s incorrect articulation of the legal standard. Even under de novo review, however, we conclude that the record demonstrates that there was no Batson error. Sims argues that the pretextual nature of the prosecutor’s explanations is manifest in the racially disparate pattern of his peremptory challenges, his explicit race-based strategy, and a comparative analysis of the struck jurors with empaneled jurors. Although discriminatory intent may be inferred from the fact that the prosecutor exercised four of his first twelve peremptory challenges to strike jurors with Hispanic surnames, see Hernandez, 500 U.S. at 363, 111 S.Ct. 1859, at least one Híspame-surnamed member of the venire was empaneled. This might indicate that the prosecutor’s motive \"was non-discriminatory. See Turner v. Marshall, 121 F.3d 1248, 1254 (9th Cir.1997). As we have" }, { "docid": "15702757", "title": "", "text": "showed a potentially discriminatory pattern in the peremptory strike of three black panelists. On appeal he has argued that one black panelist, Mr. Taylor, was struck on the grounds that he was young and had no supervisory experience, while Ms. Timkin, a white panelist of the same age who had been in her job for only eight months and also had no supervisory experience was not challenged. Support for the notion that there was purposeful discrimination in the peremptory challenge may lie in the similarity between the characteristics of jurors struck and jurors accepted. Where the principal difference between them is race, the credibility of the prosecutor’s explanation is much weakened. Although Jordon raised this issue in his state court appeals and in his petition below, neither the magistrate’s report nor the district court’s opinion addressed his argument. Jordan’s challenge alleging discrimination in jury selection is sufficient to warrant a determination whether the prosecutor’s proffered reasons were pretextual. The state trial judge presiding at Jordan’s trial was not in a position to make the requisite determination as to discriminatory intent. In an effort to save “an awful lot of time” he ruled summarily on the Batson application after an extremely brief colloquy, and resisted counsel’s efforts to make arguments regarding the peremptory strikes so as to create a full record. The trial judge could not properly decide the third Batson step because he granted counsel no time to identify the relevant facts and assess the circumstances necessary to decide whether the race neutral reasons given were credible and nonpretextual. This cursory treatment of Jordan’s Batson application was not a meaningful inquiry into “the decisive question ... whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365, 111 S.Ct. 1859. When there are many factors available upon which a trial court may rely, it may properly make a determination that the prosecutor did not discriminate on the basis of race, even absent a prima facie showing of discrimination. See id. at 369-70, 111 S.Ct. 1859. We have upheld a trial court’s determination that race neutral" }, { "docid": "12675948", "title": "", "text": "strikes of two African-American men, contending that these strikes demonstrated a “pattern” of removing African-American men that raised an inference of racial discrimination. The government denied that the strikes were racially motivated, but did not offer a race-neutral explanation. The court denied Escobar’s request, reasoning that six or seven African-American individuals remained in the jury box, where sixteen individuals were seated for the purpose of jury selection and that there was insufficient evidence to establish a “pattern” of strikes. The three-part framework that must be applied to equal protection challenges to the government’s use of a peremptory strike is well established. First, a defendant must make a prima facie showing of discrimination in the government’s use of its peremptory strike. See Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. If the defendant fulfills this requirement, the government must then proffer a race-neutral explanation for having challenged the juror. See id. at 97, 106 S.Ct. 1712. Finally, if the government meets its burden of production by proffering a race-neutral explanation, the district court must then decide whether the defendant has carried the ultimate burden of proving that the government’s use of its peremptory strike constituted purposeful discrimination. See id.; Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). In challenging the government’s use of peremptory strikes, the defendant retains the burden of proof throughout. See United States v. Bergodere, 40 F.3d 512, 515 (1st Cir.1994). Although the prima facie case requirement “is not onerous, neither can it be taken for granted.” Bergodere, 40 F.3d at 516. To satisfy his burden of establishing a prima facie case, Escobar was required to have shown, inter alia, “circumstances sufficient ... to raise an inference that the prosecutor struck the venireperson on account of race.” Id. All relevant circumstances are to be considered in determining whether the defendant has established a prima facie case, see Batson, 476 U.S. at 96-97, 106 S.Ct. 1712; Chakouian v. Moran, 975 F.2d 931, 933-34 (1st Cir.1992), and the district court’s ruling on this fact-sensitive question must be upheld unless it is clearly erroneous," }, { "docid": "23255935", "title": "", "text": "must make a prima facie showing that the [proponent] has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the [proponent] to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the [opponent] has carried his burden of proving purposeful discrimination. Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859 (citations omitted). Following the Government’s exercise of two peremptory strikes against African-American venire-persons, Defendant’s counsel raised his Batson claim. The district court then asked the Government to provide a race-neutral justification for striking the prospective jurors. Where, as here, the prosecutor tenders a race-neutral explanation for his peremptory strikes, the question of Defendant’s prima facie case is rendered moot and our review is limited to the second and third steps of the Batson analysis. See United States v. Broussard, 987 F.2d 215, 220 n. 4 (5th Cir.1993) (declining to decide whether defendant had established prima facie case of racial discrimination, where district court required explanation for peremptory strikes). The second step in the Batson burden shifting analysis requires that the Government provide a race-neutral reason for the strike. Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. We analyze the Government’s proffered racially neutral explanation as a legal issue de novo. Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); United States v. Bentley-Smith, 2 F.3d 1368 (5th Cir.1993). “A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror.” Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. At the second stage, the explanation need not be persuasive, nor even plausible, but only race-neutral and honest. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995); United States v. Webster, 162 F.3d 308, 349 (5th Cir.1999). The Government’s articulated reasons for the exercise of its strikes were that one venire-person was witnessed smiling at Defendant, while the other one lived in Defendant’s voting district or ward. Not being based upon" } ]

[ { "docid": "23699023", "title": "", "text": "continuously abused the freedom afforded counsel that his presentation — particularly in summation — was based “on an appeal to passion and prejudice not warranted by the proof.” Missouri-K.-T.R. Co. of Texas v. Ridgway, 191 F.2d 363, 370 (8th Cir. 1951); see also New York Central R.R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706 (1929); Chicago & N.W. Ry. v. Kelly, 84 F.2d 569 (8th Cir. 1936). Appellee argues that some or all of the prejudice caused by Mr. Berg’s many indiscretions were cured by the trial judge’s charge. But where the number and gravity of counsel’s improprieties reach the level presented by this record, the admonitions by the trial judge in the charge and in response to specific objections cannot possibly serve to cure all the prejudice. Brown v. Walter, supra, 62 F.2d 798 at 800; Chicago & N.W. Ry. v. Kelly, supra, 84 F.2d at 576; Altoona Clay Products, Inc., supra, 286 F.Supp. at 903. In answering Mr. Weisman’s objections to Mr. Berg’s conduct during argument of appellees’ post-verdict motion for a new trial, Judge Weinstein observed : Your style [Mr. Weisman] is entirely different from Mr. Berg’s, and, again, without criticizing Mr. Berg, obviously, I prefer your style which is the very careful understated reliable way of handling argument and presentation. Now, Mr. Berg has an entirely different style. It is going a little out of fashion now, but in any case of this kind where it runs as long as it did, the Jury becomes adjusted to that style. If you had mentioned the Mafia, then they would have taken you literally. Mr. Berg’s mentioning the Mafia or using this kind of charge was looked on with a smile by the Jury. They simply didn’t take this kind of analogy seriously. This is the kind of exaggeration that they had come to expect from a flamboyant individual. We cannot accept the trial judge’s conclusion that the jury did not take Mr. Berg seriously as to much, if not all, that he said in his summation. On the contrary, we are persuaded" } ]

[ { "docid": "23643065", "title": "", "text": "the jury, that the jurors seemed to like both lead counsel and their different styles, that the attorneys had done a fine job of livening up a potentially deadening case, that the jury would be able to sort out the evidence from the personalities when they deliberated, and that the court could perceive no real possibilities of prejudice to either party. This is not to say that the court refused to intervene when it perceived counsel approaching the line of possible prejudice. Numerous objections were properly sustained, and the jury was repeatedly admonished that the exchanges of the lawyers were not evidence and were not to be considered in deciding the case. Compare New York Central Railroad Company v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706 (1929); with Koufakis v. Carv-el, 425 F.2d 892, 901, 903 (2d Cir. 1970), on which Sealy heavily relied in its post-trial briefs in the district court. We surely would not bind Sealy thereby, but it is interesting to note that at a point in the trial when nearly half of the cited seriously prejudicial incidents had occurred, Sealy’s lead counsel told the court: I will say this, your Honor, and it may prejudice me if I should ever find myself in a position where I have to appeal here, but I will say it nevertheless. I think you have done a great job of giving the parties just' as fair a trial as a judge could ever do. It also is worth pointing out that although it would not be fair to characterize all (or nearly all) of Ohio’s counsel’s alleged misconduct as responsive to arguable improprieties by Sealy’s counsel, numerous instances can be so described, see Stanczak v. Pennsylvania R. Co., 174 F.2d 43, 48 (7th Cir. 1949), and it can certainly be said that Sealy’s counsel strayed from the straight and narrow on more than a few occasions. Counsel for both sides definitely contributed to keeping the jury awake. At one point relatively late in the trial, the court commended the attorneys as follows: The Court: Gentlemen, I" }, { "docid": "23643068", "title": "", "text": "Co., 173 F.2d 721, 726 (3d Cir. 1949). If the jury were to be prejudiced by such activity it would be just as likely that it would be directed toward the offender. Ultimately we think the common sense of a jury will prevail in most instances and we are not concerned on the present record that that is not the situation. When the jury returned its $6.8 million verdict, the district court queried the attorneys whether he had discretion not to treble the damage award. The court was advised that Congress had left no discretion on that point, and, as the court later stated in arguments on post-trial motions, it was very surprised at that result. During those arguments, Sealy’s counsel told the court that a judgment in excess of $20 million would wipe out Sealy’s net worth and require giving the whole business to Ohio. These factors clearly influenced the court. As it stated in its ruling on the new trial motion: The size of the jury’s verdict was shocking. At the time it was returned I considered it shocking and asked “How did it happen[?]” After reflection on Sealy’s 86 instances of alleged misconduct, the court decided that those instances must have produced prejudice in the jury room, notwithstanding that, as we have noted, the court had consistently throughout the trial, in the context in which the instances occurred and with the benefit of observation of the jury, expressed its view that no prejudice had been created. We have concluded that the district court erred in the decisional result of the search on which it embarked for causative error. In the first place, we cannot read the court’s decision as an exercise of its discretion to weigh the evidence and to find a damage award not fairly supported thereby, for beyond passing comments that some of the damages claimed tended to the speculative, the court engaged in no weighing of the evidence. Indeed, the court’s shock at the size of the full judgment appears to have derived as much from its recognition that trebling was mandatory as from" }, { "docid": "23643066", "title": "", "text": "trial when nearly half of the cited seriously prejudicial incidents had occurred, Sealy’s lead counsel told the court: I will say this, your Honor, and it may prejudice me if I should ever find myself in a position where I have to appeal here, but I will say it nevertheless. I think you have done a great job of giving the parties just' as fair a trial as a judge could ever do. It also is worth pointing out that although it would not be fair to characterize all (or nearly all) of Ohio’s counsel’s alleged misconduct as responsive to arguable improprieties by Sealy’s counsel, numerous instances can be so described, see Stanczak v. Pennsylvania R. Co., 174 F.2d 43, 48 (7th Cir. 1949), and it can certainly be said that Sealy’s counsel strayed from the straight and narrow on more than a few occasions. Counsel for both sides definitely contributed to keeping the jury awake. At one point relatively late in the trial, the court commended the attorneys as follows: The Court: Gentlemen, I am real proud of you. You are doing so much better than I expected. I approached this case with great fear and concern. Mr. Hastings: You thought there were going to be fisticuffs? The Court: Yes, yes. In the month of trial that followed, involving nearly 2400 pages of transcript, only seven additional incidents occurred which Sealy even bothered to include in its list of 86 prejudicial occurrences. All were minor in nature. While we do not condone conduct by counsel not designed to advance his case by properly established procedures, we are also not unmindful that in the heat of advocacy, conduct and words which are exchanged and which when viewed on the cold record appear to be on the unseemly side may very well not be so regarded that way at all by the jury, particularly when they occur in the give and take of a hotly contested and extended lawsuit. “Juries are not so likely to get excited or inflamed by lawyers’ talk as lawyers think they are.” Smith v. Philadelphia Transp." }, { "docid": "19992609", "title": "", "text": "co-opt that — or for you to make the decision. Sitting up there, I think, sure you can reasonably reach the conclusion you’ve reached, but I think sitting down here it’s another matter. 10: I appreciate your opinion, counsel. I expect more of the attorneys who work in this office. As far as the other grounds, I stated before and I’ll say it again, there’s nothing that I’ve said or done that would in any way convince me, even reasonably, that I am unable to be fair and impartial in examining the evidence presented before me and reaching a determination as to disposition — the recommendation of the disposition to the convening authority. Whether that be dismissal of the charges, or general court-martial or anything in between in my capacity. So your objection is noted, but I will not recuse myself. Of course, it is always up to the convening authority to make a determination and, if at all possible, I will have this — your request and the questions and answers leading up to it verbatim. At trial a month later the defense renewed its objection to the investigating officer and moved unsuccessfully that either the charges be dismissed or the Article 32 investigation be reopened. Defense Counsel relied in part on Informal Opinion No. 1474, which was issued on January 18, 1982, by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility. This opinion contains the following advice: Pleading on behalf of a client in an investigative or military magistrate proceeding before an officer exercising command authority over the lawyer should also be avoided whenever practicable. Opinion at 5 (footnote omitted). In denying the defense motion, the military judge found “from the record that there is clear and convincing evidence that no specific prejudice has resulted to the accused in this case.” II This Court perceives nothing in the nature of the duties performed by the executive officer which would have precluded his conducting the fair and impartial pretrial investigation required by Article 32 of the Uniform Code. Moreover, the record gives no indication that Commander" }, { "docid": "13965225", "title": "", "text": "which New York adopts this view — or the view of the trial judge — is a matter not free from doubt; cases pointing in both directions, and in between, are briefly reviewed in the margin. We see little profit in an attempt to reconcile these cases, or to determine which truly represents the law of the state. Even assuming that the judge was wrong in telling the jury that it could not even consider Gruber’s advice on the issue of probable cause, we see no reason for invoking the plain error rule to overturn the verdict. This is not at all a ease “where it is apparent to the appellate court on the face of the record that a miscarriage of justice may occur because counsel has not properly protected his client by timely objection,” Shokuwan Shimabukuro v. Higeyoshi Nagayama, 78 U.S.App.D.C. 271, 140 F.2d 13, 15 (D.C.Cir.), cert. denied, 322 U.S. 755, 64 S.Ct. 1270, 88 L.Ed. 1584 (1944), or one where opposing counsel had prevailed as a result of tactics deliberately designed to prejudice the jury, N. Y. Central R. R. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706 (1929); San Antonio v. Timko, 368 F.2d 983, 986 (2 Cir. 1966). Although the jury was told it could consider the advice of counsel as negating malice, it declined to do so; very likely it would have done the same if it had been told to consider Gruber’s statement on the issue of probable cause — a charge that could not be branded as incorrect under New York law, see fn. 4. Moreover, the positive purposes protected by Rule 51 would have been well served in this case had counsel proposed an alternative instruction or distinctly objected to the one that was given. The purpose of the requirement is “to inform the trial judge of possible errors so that he may have an opportunity to reconsider his rulings and, if necessary, correct them,” Sweeney v. United Feature Syndicate, Inc., 129 F.2d 904, 906 (2 Cir. 1942). Given the dubieties of New York law on this" }, { "docid": "20814274", "title": "", "text": "doubt. I have clients who go to church more, who talk to then-pastor or their priest, who go out with their friends or family members, who confide in — who do actually go see counselors. I have clients who turn to alcohol, a glass of wine before bed. The second factor identified by the court in Whittenburg is that “the district court declined to take any specific curative action.” 561 F.3d at 1131. Here, as in Whittenburg, the district court overruled defense counsel’s timely objection to the improper argument, which told the jury they could appropriately consider the argument in the deliberations they were about to begin. True, the district court’s general instructions included a reminder that counsel’s arguments are not evidence, but this did not dissuade the court in Whittenburg from remanding for a new trial: The district court’s decision to overrule the objection to counsel’s argument and deem it appropriate was never undone and remained the most specific and timely guidance from the court to the jury with respect to the propriety of counsel’s closing remarks. Id. at 1132. We agree. Indeed, in Mor-rissey, we concluded that the district court committed “reversible error ” when it failed to sustain defendant’s objection to an argument that was “an emotional appeal to the jury to punish the company.” 821 F.2d at 1304; see N.Y. Central R.R. v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706 (1929) (“The failure of the trial judge to sustain petitioner’s objection or otherwise to make certain that the jury would disregard the appeal, could only have left them with the impression that they might properly be influenced by it in rendering their verdict, and thus its prejudicial effect was enhanced.”). The third factor identified by the court in Whittenburg is also present in this case — “the size of the damage award, while not beyond the bounds of rationality, suggests] that counsel’s comment had a prejudicial effect.” 561 F.3d at 1132. As we have explained, both the cause and the extent of Gilster’s emotional damages were vigorously contested. Gilster’s testimony was the" }, { "docid": "23643064", "title": "", "text": "denying Sealy a fair trial, however, cannot be made without examining the general context of the trial to determine the possible impact. See 6A Moore’s Federal Practice 159.05[3] at 59-54 (1974). This was a long jury trial of a complex antitrust case. While the challenges and subtleties of antitrust law often hold a strong fascination for lawyers, a trial such as this one could hardly be expected to keep the average lay juror on the edge of his or her seat for twelve weeks. Recognizing this, in fact, the district court and the attorneys for the parties engaged in a running facetious colloquy throughout the trial, the point of which was that jurors might tend to doze off as a trial day wore on, and that by three o’clock some sparks set flying by counsel could be just the thing to regain the jury’s full attention. The court often would advise counsel after a verbal skirmish over some objection or other that “we needed that.” The court repeatedly expressed its view, informed by observation of the jury, that the jurors seemed to like both lead counsel and their different styles, that the attorneys had done a fine job of livening up a potentially deadening case, that the jury would be able to sort out the evidence from the personalities when they deliberated, and that the court could perceive no real possibilities of prejudice to either party. This is not to say that the court refused to intervene when it perceived counsel approaching the line of possible prejudice. Numerous objections were properly sustained, and the jury was repeatedly admonished that the exchanges of the lawyers were not evidence and were not to be considered in deciding the case. Compare New York Central Railroad Company v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706 (1929); with Koufakis v. Carv-el, 425 F.2d 892, 901, 903 (2d Cir. 1970), on which Sealy heavily relied in its post-trial briefs in the district court. We surely would not bind Sealy thereby, but it is interesting to note that at a point in the" }, { "docid": "18298747", "title": "", "text": "comment upon what defendant’s counsel had argued in his summation. Having failed to abide by the discovery rules and the requirements of the pre-trial order, defendant was precluded from calling an expert witness to describe how the vessel’s wake would prevent spray from the waves affecting the work area. Defendant’s counsel, in summation, sought to remedy the lack by supplying the testimony himself. In. those circumstances, plaintiff’s counsel was entitled, in fairness, to argue to the jury that the presence of spray was established by “the undisputed testimony, notwithstanding what you have heard in argument here,” and that there was “no testimony which disputes or contests that fact.” It is, of course, well settled that “[i]mproper or intemperate argument by counsel in summation may necessitate a new trial where it tends to arouse undue passion or prejudice on the part of the jury, thereby depriving the opposite party of a fair trial.” Mileski, supra, at 1171, and cases there cited. The courts should not hesitate to grant relief where counsel indulges in “outrageous argument,” San Antonio v. Timko, 368 F.2d 983 (2d Cir. 1966), or when counsel “repeatedly went beyond the bounds of propriety,” Koufakis v. Carvel, 425 F.2d 892, 901 (2d Cir. 1970). The Supreme Court has mandated a new trial where the record reveals “a bitter and passionate attack on petitioner’s conduct of the case, under circumstances tending to stir the resentment and arouse the prejudice of the jury,” New York Central R.R. Co. v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 303, 73 L.Ed. 706 (1929). But no such improprieties were committed in the case at bar. On the contrary, the comments, which defendant particularly criticizes were justified by the circumstances. Complaints of prejudicial and unfair arguments to the jury are not sufficient to obtain a new trial where the behavior of counsel is not outrageous, and the jury’s verdict is justified, as in the case at bar, by the evidence in the record. Fortunato v. Ford Motor Co., 464 F.2d 962, 971 (2d Cir. 1972). V. The final question raised by the parties is the" }, { "docid": "16983491", "title": "", "text": "railroad company as an employe is an incentive to commit perjury and speak lies, then I say it is also an incentive for other people, that are demanding at your hands a stupendous amount of money, — more money probably than the whole bunch of you have, — I do not know you, — but I say, if that is an incentive for Mr. Bolitho to lie, because he is an employe of this company and wants to be paid for his job, and wants to get that pay check which he earns, then probably other people that are asking for money might possibly have the same incentive.” “Have you ever seen a clearer cut bunch of men than Mr. Hall, Mr. Hanson, and Mr. Carlson? Oh, yes, but Mr. Hall and Mr. Hanson and Mr. Carlson draw their pay checks from the North Western Railroad. They are officers of the North Western Railroad, and therefore they are not believable. The only time that Mr. Davis wants anybody to believe a witness is when he is asking damages, or when he testifies on his side of the case.” Mr. Davis, counsel for the plaintiff, was not on trial, nor had he been a witness. His remuneration and his beliefs as to the credibility v of the witnesses were not in any way material. The remarks should not have been made, and, in so far as the subsequent misconduct of Mr. Davis, if any, was a defense to or bore directly upon these improper statements, we think that the defendant is precluded from taking advantage of what was directly invited or provoked by its own counsel’s misconduct. While improper argument by one counsel may elicit a response by his opponent which is also improper, without requiring a reversal, it does not open up the entire field to improper argument. In New York Central R. Co. v. Johnson, 279 U.S. 310, at page 317, 49 S.Ct. 300, 303, 73 L.Ed. 706, the Supreme Court in reversing this court in a case in which we had held that the misconduct complained of did" }, { "docid": "2967243", "title": "", "text": "some influence upon the verdict.” A statement by counsel for appellant cannot be ignored. With equal disregard of proper conduct, and contrary to the ethics of his profession, counsel stated, “If that is true, then I have the right to show that this man has collected $12,500.00 on his insurance for the leg.” There was no excuse or justification for this highly improper remark, but it does not justify the court in sustaining a judgment that should be reversed because of testimony and remarks persistently made by counsel for appellee and calculated to influence the jury. Misconduct in Closing Argument. In addition to statements of counsel for appellee relative to domestic responsibilities, appellant complains of many other remarks of counsel in his argument to the jury, such as: “The silliest and most dishonest and contemptible defence that I have seen in thirty years,” and “I say that from the very minute this man lay in the hospital, this railroad started out to try and defraud him,” and “claim agent’s trickery,” and “Built up defence,” and the appellant was “hiding behind a dead man,” and “suspicion haunts a guilty man,” and others of a similar nature. Counsel in addressing the jury should confine their remarks to a discussion of the issues in the ease and the evidence in the record; opposing counsel should except to the remarks claimed to be improper; and trial judges should exercise vigilance to prevent improper remarks and appeals to passion and prejudice. New York Central Railroad Company v. Johnson, 279 U. S. 310, 49 S. Ct. 300, 73 L. Ed. 706; Union Electric Light & Power Company v. Snyder Estate Company (C. C. A.) 65 F.(2d) 297. In this case no objections were made or exceptions taken at the time of the argument. Opposing- counsel did not interrupt or request the court properly to instruct the jury pertaining to such remarks. Appellant had a record made of counsel’s entire argument when no record of the argument of appellant’s counsel had been preserved. We are asked to determine the prejudicial character of this argument without knowing what" }, { "docid": "8121566", "title": "", "text": "here, and we don’t want it to spread from 666 Fifth Avenue any further than that building right now. ****** “My time is up, I have done the best I can. I have lived in agony with this man since I got the first notice that this was what was going to happen, this Post article was coming out. I have seen him deteriorating even since it came out, and I have lived in agony along with him, and it may be that the personal firsthand knowledge that I have had since almost living with him and his family every day, I may have said some things or done some things or conducted myself in some manner that was displeasing to you. All I can say, I have done my best, and if I have done any of those things, don’t hold it against Wallace Butts. “You know, one of these days, like everyone else must come to, Wallace Butts is going to pass on. No one can bother him then. The Saturday Evening Post can’t get at him then. And unless I miss my guess, they will put Wallace Butts in a red coffin with a black lid, and he will have a football in his hands, and his epitaph will read something like this: ‘Glory, Glory to old Georgia.’ ” [R, pp. 1321-22.] If this dissent serves no other purpose, it will at least preserve for posterity the colorful peroration last quoted. Seriously, it seems to me that “[t]he public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice.” New York Central R. R. Co. v. Johnson, 1929, 279 U.S. 310, 318, 49 S.Ct. 300, 303, 73 L.Ed. 706. That would be true even if the prejudicial argument had not been followed by a grossly excessive verdict. I submit that the $3,000,000 punitive damage verdict was so clearly the result of passion and prejudice that it could not be cured by remittitur. It is" }, { "docid": "23643063", "title": "", "text": "was engaged in improperly “testifying” in his role as counsel, was improperly arguing to the jury during the taking of testimony, and had made repeated factual errors. Other comments were made between counsel (and definitely not just by Ohio’s counsel) that can only be characterized as either harmless badinage or occasionally angry exclamations of no particular consequence, a number of which appear on Sealy’s list. Counsel also engaged in several argumentative ejaculations that clearly ought not to have been made, two of the most serious of which were “Let’s ask the price fixer the question” and “If the Sealy organization is in favor of it, it is most probably illegal.” We have carefully examined the pertinent portions of the record, and can sum up part of our reactions by saying that some of the items on Sealy’s laundry list were quite arguably unobjectionable, others were objectionable, if at all, only on the basis of their tone, and others were no doubt improper behavior. The decision as to whether those items which were improper produced prejudice denying Sealy a fair trial, however, cannot be made without examining the general context of the trial to determine the possible impact. See 6A Moore’s Federal Practice 159.05[3] at 59-54 (1974). This was a long jury trial of a complex antitrust case. While the challenges and subtleties of antitrust law often hold a strong fascination for lawyers, a trial such as this one could hardly be expected to keep the average lay juror on the edge of his or her seat for twelve weeks. Recognizing this, in fact, the district court and the attorneys for the parties engaged in a running facetious colloquy throughout the trial, the point of which was that jurors might tend to doze off as a trial day wore on, and that by three o’clock some sparks set flying by counsel could be just the thing to regain the jury’s full attention. The court often would advise counsel after a verbal skirmish over some objection or other that “we needed that.” The court repeatedly expressed its view, informed by observation of" }, { "docid": "23012383", "title": "", "text": "make any difference whether it is an American company or whether it is English — this English company stretched out across the pond to Chicago— “Mr. Reeder (interrupting): We object to that argument. We think it is improper argument. We object to it. “The Court: Sustain the objection.” There are two objectionable features contained in the foregoing' excerpts from counsel’s closing argument: First, the remark that the defendant’s doctors “stood there like a bunch of sharks.” Second, the reference to “this English, company,” which could only have been made to emphasize the fact that this was an alien company and to create prejudice against it. References to medical experts as butchers have been condemned. .Ætna Life Ins. Co. of Hartford, Conn., v. Kelley (C.C.A.8) 70 F.(2d) 589, 59.4, 93 A.L.R. 471, and New York Life Ins. Co. v. Doerksen (C.C.A.10) 75 F.(2d). 96, 102, 103. Describing them as standing “like a bunch of sharks” is equally offensive. Remarks tending to create an atmosphere of hostility toward foreign corporations are condemned as an appeal to sectional or local prejudice. New York Central R. R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706. In addition to these remarks, about which the defendant complains, we note that counsel for the plaintiff in his closing argument at one point stated that “there wasn’t any question about his [the insured’s] having fallen, not until -after he had been buried, and not until they tried to cheat' this widow. And that is a strong argument, but I think the evidence-justifies it.” He also kept before the jury the fact that the plaintiff was a widow, referred to. the insured’s estate as “this man’s little estateand closed his argument with the words: “Remember, gentlemen, this is one case for this widow; it is an ordinary case for this company. See justice between them, gentlemen; see that justice is done; and when you go to your jury room, gentlemen, remember that this same situation may occur to any one of you.” In Union Pac. R. Co. v. Field (C.C. A.8) 137 F. 14, at" }, { "docid": "23643072", "title": "", "text": "U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946); Fontana Aviation, Inc. v. Beech Aircraft Corporation, supra, 432 F.2d at 1085-86. Accordingly, we are of the opinion that the district court was mistaken in taking the size of the jury’s award as a demonstration that there must have been prejudice created somewhere. Also, as we have suggested, we have reached the firm conviction that the court erred in finding that there was in fact such prejudice. It should go without saying that we are reluctant to overturn the finding of the district court on such a matter, as we do not have the benefit of having observed the trial and felt its pulse. On the other hand, the considerable deference usually to be accorded to a district court’s evaluation of the effect of misconduct is necessarily reduced in this case, where the court, while observing the trial and perceiving its tone, consistently stated in definite terms its confidence that no prejudice was extant, and only a year later, in ruling on post-trial motions, did the court reverse its view. It is axiomatic that litigation parties are entitled only to a fair trial, not to a perfect one. Our thorough and independent review of the record has convinced us that the district court was right the first time, that it did a commendable job of ensuring that the parties received a fair trial, and that it committed error in applying hindsight to a trial that was by no means perfect but that was free from prejudicial error. Accordingly, in view of the fact that the jury verdict was unnecessarily halved, Sealy was, to say the least, not prejudiced by the district court’s disposition of its new trial motion. The remitted damage judgment in Ohio’s favor is affirmed. III. The District Court’s Denial of Equitable Relief After disposing of the post-trial motions, the district court took additional evidence in hearings on equitable relief and ultimately decided, notwithstanding the jury’s determination that Sealy had violated the antitrust laws, that Ohio was entitled to no equitable relief whatsoever. The legal principles applicable to" }, { "docid": "8121567", "title": "", "text": "can’t get at him then. And unless I miss my guess, they will put Wallace Butts in a red coffin with a black lid, and he will have a football in his hands, and his epitaph will read something like this: ‘Glory, Glory to old Georgia.’ ” [R, pp. 1321-22.] If this dissent serves no other purpose, it will at least preserve for posterity the colorful peroration last quoted. Seriously, it seems to me that “[t]he public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice.” New York Central R. R. Co. v. Johnson, 1929, 279 U.S. 310, 318, 49 S.Ct. 300, 303, 73 L.Ed. 706. That would be true even if the prejudicial argument had not been followed by a grossly excessive verdict. I submit that the $3,000,000 punitive damage verdict was so clearly the result of passion and prejudice that it could not be cured by remittitur. It is difficult in any case to reconcile the practice of remittitur with the constitutional right of a defendant to trial by jury The logic of Professor Carlin’s article on Remittiturs and Additurs (1942), 49 W.Va. LQ 1, 17, 18, quoted in 6 Moore F.P. (2d ed.) 3738-39, seems to me unanswerable. That logic is peculiarly applicable to the circumstances of this case, where only punitive damages are reduced and there is no rule or standard by which the judge can separate any good part of the verdict from the bad. In effect, the remittitur from $3,000,000 to $400,000 represents nothing more specific than the difference between the jury’s and the judge’s sense of “ethical indignation.” The jury’s verdict cannot be recognized in the final judgment. I appreciate that in the federal courts the right to a jury trial is to be determined as a matter of federal law in diversity as well as other actions It is, however, both interesting and instructive to refer to Georgia law. The statute permitting the award of punitive damages, says" }, { "docid": "23012384", "title": "", "text": "or local prejudice. New York Central R. R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706. In addition to these remarks, about which the defendant complains, we note that counsel for the plaintiff in his closing argument at one point stated that “there wasn’t any question about his [the insured’s] having fallen, not until -after he had been buried, and not until they tried to cheat' this widow. And that is a strong argument, but I think the evidence-justifies it.” He also kept before the jury the fact that the plaintiff was a widow, referred to. the insured’s estate as “this man’s little estateand closed his argument with the words: “Remember, gentlemen, this is one case for this widow; it is an ordinary case for this company. See justice between them, gentlemen; see that justice is done; and when you go to your jury room, gentlemen, remember that this same situation may occur to any one of you.” In Union Pac. R. Co. v. Field (C.C. A.8) 137 F. 14, at page 15 (cited with approval in New York Central R. R. Co. v. Johnson, supra, 279 U.S. 310, 318, 49 S.Ct. 300, 73 L.Ed. 706), Judge Walter H. Sanborn, speaking for this court, said: “Under our system of jurisprudence it is the province of the jury in actions at law to try and determine the rights of parties according to the law and the evidence. It is the duty of the court and of its officers, the counsel of the parties, to prevent the jury from the consideration- of extraneous issues, of irrelevant evidence, and of erroneous views of the law, to guard it against the influence of passion and prejudice, and to assure to the litigants a fair and impartial trial. An omission by court or counsel to discharge this duty, or a persistent violation of it, is a fatal error, because it makes the trial unfair. The property of a defendant may not be lawfully transferred to a plaintiff without an impartial trial of the controversies between them. A trial is not fair" }, { "docid": "23643067", "title": "", "text": "am real proud of you. You are doing so much better than I expected. I approached this case with great fear and concern. Mr. Hastings: You thought there were going to be fisticuffs? The Court: Yes, yes. In the month of trial that followed, involving nearly 2400 pages of transcript, only seven additional incidents occurred which Sealy even bothered to include in its list of 86 prejudicial occurrences. All were minor in nature. While we do not condone conduct by counsel not designed to advance his case by properly established procedures, we are also not unmindful that in the heat of advocacy, conduct and words which are exchanged and which when viewed on the cold record appear to be on the unseemly side may very well not be so regarded that way at all by the jury, particularly when they occur in the give and take of a hotly contested and extended lawsuit. “Juries are not so likely to get excited or inflamed by lawyers’ talk as lawyers think they are.” Smith v. Philadelphia Transp. Co., 173 F.2d 721, 726 (3d Cir. 1949). If the jury were to be prejudiced by such activity it would be just as likely that it would be directed toward the offender. Ultimately we think the common sense of a jury will prevail in most instances and we are not concerned on the present record that that is not the situation. When the jury returned its $6.8 million verdict, the district court queried the attorneys whether he had discretion not to treble the damage award. The court was advised that Congress had left no discretion on that point, and, as the court later stated in arguments on post-trial motions, it was very surprised at that result. During those arguments, Sealy’s counsel told the court that a judgment in excess of $20 million would wipe out Sealy’s net worth and require giving the whole business to Ohio. These factors clearly influenced the court. As it stated in its ruling on the new trial motion: The size of the jury’s verdict was shocking. At the time it" }, { "docid": "23346387", "title": "", "text": "may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings. Id. (emphasis added). Atkinson, in turn, cited New York Central R.R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706 (1929), and Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Id. New York Central was a civil jury case in which the Court rejected the contention that counsel’s objection to an allegedly prejudicial summation was not sufficiently specific: The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict uninfluenced by the appeals of counsel to passion or prejudice. Where such paramount considerations are involved, the failure of counsel to particularize an exception will not preclude this Court from correcting the error. Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345. New York Central, 279 U.S. at 318-19, 49 S.Ct. 300 (additional citations omitted). Brasfield was a criminal jury case in which the Court reversed, in the absence of defense counsel’s objection, because the trial court had asked a deadlocked jury to disclose their numerical division without identifying the side favored by the majority. Brasfield, 272 U.S. at 449-50, 47 S.Ct. 135. Brasfield cited several criminal jury cases, 272 U.S. at 450, 47 S.Ct. 135, of which the earliest is Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 41 L.Ed. 289 (1896), where the Court reversed for an unpreserved error in the charge, stating: “[I]f a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it.” Id. at 658, 16 S.Ct. 1127. In" }, { "docid": "23643099", "title": "", "text": "conclusion. . Sealy argues that United States v. Sealy should have been kept out of the trial and that at least an exhibit pertinent thereto that was sent to the jury room mandated a new trial. We agree with Sealy and the district court that Sealy could not form the basis of a collateral estoppel on liability herein, but think it clear from the facts of this case that Sealy was very much a relevant and proper part of the background of this litigation. The exhibit in issue here contained Judge Austin’s findings and conclusions in Sealy both before and after the Supreme Court opinion, and a short precis (approved by the district court herein) of the latter opinion. We agree with the district court and the parties that it would have been better if the jury had not been given Judge Austin’s opinions. (These were apparently left in the exhibit transmitted to the jury accidentally.) We are unable, however, to find any real possibility of prejudice resulting from the transmittal. The exhibit was one of many exhibits sent to the jury. The fact that Sealy had engaged in market allocation was properly known to the jury without the exhibit, and the jury was correctly instructed that if it found Sealy to have continued the practice, it should find a per se violation. As to Judge Austin’s findings that Sealy had also engaged in illegal resale price maintenance, we agree that those facts were of little if any relevance to this case, but Sealy’s own witness, on direct examination, had testified to the prior practice and its illegality. . It follows from our conclusion here that submitting the national accounts program and non-Sealy royalty damages to the jury was only harmless error. . We express no view on the propriety of Ohio’s request that the court order Sealy to divest the acquired licensees to Ohio, other than to say that the court should consider this issue along with all others in deciding what total mix of equitable relief, if any, might be just in the circumstances, and to state that" }, { "docid": "8586928", "title": "", "text": "to set aside the verdict, pointed out that “it had been in no hurry to complete this case,” that it had been prepared to grant a continuance “with respect to the right eye damages,” and that a continuance would have been granted with respect to the mental anguish aspects “had it been requested.” Having rejected this clear opportunity to obtain and present rebuttal medical proof, defendant cannot now complain of any prejudice. We also fail to find any substantial support for the Railroad’s contention that the summation of plaintiff’s counsel so exceeded the bounds of propriety that a new trial was mandated. Improper or intemperate argument by counsel in summation may necessitate a new trial where it tends to arouse undue passion or prejudice on the part of the jury, thereby depriving the opposite party of a fair trial. See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243 (1931); New York Central Railroad Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706 (1929); Koufakis v. Carvel, 425 F.2d 892, 900-905 (2d Cir. 1970); San Antonio v. Timko, 368 F.2d 983, 986 (2d Cir. 1966); Klotz v. Sears, Roebuck & Co., 267 F.2d 53 (7th Cir.), cert. denied, 361 U.S. 877, 80 S.Ct. 141, 4 L.Ed.2d 114 (1959); Brown v. Walter, 62 F.2d 798 (2d Cir. 1933). However, in the present case the references by Mileski’s counsel to the possibility of injury to Mileski’s right eye and to the mental strain that might be suffered as a result of his being limited in the future to reliance upon one eye fell far short of overstepping the bounds of propriety, since they had some evidentiary support in the record. The references by plaintiff’s counsel in his summation to specific amounts of money which in his opinion, the jury should award for pain and suffering fall in a somewhat different category. The problem posed by such statements stems from the unavoidably vague measure of damages which the jury is instructed to apply, i. e., fair and reasonable compensation," } ]

[ { "docid": "23208062", "title": "", "text": "2014(w), was not affected by the 1988 amendments. Although the definition of nuclear incident was altered slightly by the Amendments Act, the parts of that definition pertinent to this case remained constant: The term “nuclear incident” means any occurrence, including an extraordinary nuclear occurrence, within the United States causing, within or outside the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material. ... 42 U.S.C. § 2014(q). . The “arising under” language also appears in the statute which authorizes district courts to hear cases involving federal questions. It states: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Although they contain identical language, the two provisions have been interpreted differently. Section 1331 ... although broadly phrased, has been continuously construed and limited in light of the history that produced it, the demands of reason and coherence, and the dictates of sound judicial policy which have emerged from the [statute’s] function as a provision in the mosaic of federal judiciary legislation. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495, 103 S.Ct. 1962, 1972, 76 L.Ed.2d 81 (1983) (quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 379, 79 S.Ct. 468, 484, 3 L.Ed.2d 368 (1959)). The statutory grant is much narrower than the constitutional grant. Under the statutory grant, a case arises under federal law only if, from the face of the plaintiff's complaint, it is apparent that the plaintiff’s cause of action was created by federal law. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). . The Court in Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), discussed further the idea of a purely jurisdictional statute. In Mesa, the Court reviewed whether allegation of a federal defense was a prerequisite to" } ]

[ { "docid": "6937588", "title": "", "text": "States v. Tittjung, 235 F.3d 330, 335 (7th Cir.2000). Indeed, “[i]t is the duty of this court to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.’ ” EEOC v. Chicago Club, 86 F.3d 1423, 1428 (7th Cir.1996) (citing Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)). Accordingly, if the parties do not do so, then a court must raise the jurisdictional question on its own, as we have done in this case. See Tittjung, 235 F.3d at 335; see also Florio v. Olson, 129 F.3d 678 (1st Cir.1997) (considering sua sponte the question of whether admiralty jurisdiction existed). We review de novo the district court’s legal determination of whether subject matter jurisdiction exists, CCC Inform. Services, Inc. v. Amer. Salvage Pool Assoc., 230 F.3d 342, 345-46 (7th Cir.2000), and we review the district court’s factual determinations for clear error. See Galva Foundry Co. v. Heiden, 924 F.2d 729 (7th Cir.1991). A. Maritime Jurisdiction The Constitution extends to Article III courts the power to hear “all Cases of admiralty and maritime Jurisdiction.” U.S. Const, art. III, § 2. That power was codified at 28 U.S.C. § 1383(1), which provides for “original jurisdiction ... of ... [a]ny civil case of admiralty or maritime jurisdiction.... ” Historically, the only question in determining whether admiralty or maritime tort jurisdiction existed was whether the tort occurred on navigable waters. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531,115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). Over time, the test has been refined. Now, “a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions of location and of connection with maritime activity.” Grubart, 513 U.S. at 534, 115 S.Ct. 1043. There is thus a two-prong test for jurisdiction. The locality test reflects the traditional requirement that a tort occur on navigable waters. The requirement of a connection with maritime activity, also known as the nexus test, raises two issues. The court" }, { "docid": "15378771", "title": "", "text": "for leaving the threatening messages. Gruver managed to escape to a neighbor’s house on land, where he rang the doorbell and asked the man who answered to call an ambulance. Gruver suffered broken ribs and a punctured lung as a result of the fight. He had to be hospitalized for several days due to his injuries. Gruver later reported the incident to the police, and Lesman eventually was arrested. On July 22, 2004, Gruver filed a complaint for damages in federal district court against Robert Lesman, Lesman Fisheries, Inc., and the Sunset Charge pursuant to admiralty and maritime law, citing 28 U.S.C. § 1333, 46 U.S.C. § 10602, and 45 U.S.C. § 56. The complaint charged Les-man with negligence and unpaid wages. Gruver thereafter filed an amended complaint on March 14, 2005, again predicated on admiralty jurisdiction, asserting causes of action for assault and unpaid wages. The parties later stipulated to the dismissal of the wage claims, leaving only Graver’s negligence claim under maritime law for Lesman’s alleged assault. Shortly thereafter, Lesman filed a motion to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The district court granted the motion on August 29, 2005, holding that Graver’s suit must be dismissed because he had failed to establish federal admiralty jurisdiction. Gruver timely appealed the order. II. We review de novo the district court’s dismissal for lack of subject matter jurisdiction. Campbell v. Redding Med. Ctr., 421 F.3d 817, 820 (9th Cir.2005). Federal district courts have original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1); see also U.S. Const, art. III, § 2. Historically, admiralty jurisdiction turned solely on the question of whether the tort occurred on navigable waters. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). Over time, however, the test has been refined. Today, a party seeking to invoke federal maritime jurisdiction over a tort claim must satisfy both a location test and a connection test. Id. at 534, 115" }, { "docid": "19138141", "title": "", "text": "of Liability Act provides a federal cause of action for a vessel owner seeking exoneration or limitation, it “does not provide an independent foundation for federal admiralty jurisdiction.” MLC Fishing, 667 F.3d at 143. That is, the fact that a vessel owner may file a petition for limitation does not mean the district court necessarily has jurisdiction to hear it. Instead, the district court will only have admiralty jurisdiction to hear a petition for limitation if it already has admiralty jurisdiction over the underlying claims that the petition seeks to limit. See id. at 143-44. We therefore ask whether the underlying claims raise a “civil case of admiralty or maritime jurisdiction” that the district court could hear under 28 U.S.C. § 1333(1). Here, the petition seeks to limit liability on underlying claims that sound in tort. We therefore turn to examine the scope of federal admiralty jurisdiction over maritime tort claims. 1. Legal Standard “The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; if it did not, admiralty jurisdiction did not exist.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531-32, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). The location of the tort normally depended on where the plaintiff was harmed — or to use a more lawyerly phrase, where “the substance and consummation of the injury” took place. The Plymouth, 70 U.S. (3 Wall.) 20, 33, 18 L.Ed. 125 (1866). This could occasionally lead to odd results. For instance, the Supreme Court held on multiple occasions that when negligently piloted ships rammed structures on the land, the resulting claims were outside the law of admiralty, because the structures harmed were on the land and not in the water. See, e.g., Martin v. West, 222 U.S. 191, 195-97, 32 S.Ct. 42, 56 L.Ed. 159 (1911) (collision between a steamship and the pier of a drawbridge); Cleveland Terminal & Valley R.R. Co. v. Cleveland S.S. Co., 208 U.S. 316, 319-21, 28 S.Ct. 414, 52 L.Ed. 508 (1908) (collision involving multiple vessels and" }, { "docid": "22385432", "title": "", "text": "and contribution from the city for any resulting loss to Great Lakes. The city, joined by petitioner Jerome B. Grubart, Inc., one of the state-court plaintiffs, filed a motion to dismiss this suit for lack of admiralty jurisdiction. Fed. Rule Civ. Proc. 12(b)(1). The District Court granted the motion, the Seventh Circuit reversed, Great Lakes Dredge & Dock Co. v. Chicago, 3 F. 3d 225 (1993), and we granted certiorari, 510 U. S. 1108 (1994). We now affirm. II The parties do not dispute the Seventh Circuit’s conclusion that jurisdiction as to Counts II and III (indemnity and contribution) hinges on jurisdiction over the Count I claim. See 3 F. 3d, at 231, n. 9; see also 28 U. S. C. § 1367 (1988 ed., Supp. V) (supplemental jurisdiction); Fed. Rules Civ. Proc. 14(a) and (c) (impleader of third parties). Thus, the issue is simply whether or not a federal admiralty court has jurisdiction over claims that Great Lakes’s faulty replacement work caused the flood damage. A A federal court’s authority to hear cases in admiralty flows initially from the Constitution, which “extend[s]” federal judicial power “to all Cases of admiralty and maritime Jurisdiction.” U. S. Const., Art. Ill, § 2. Congress has embodied that power in a statute giving federal district courts “original jurisdiction . . . of. . . [a]ny civil case of admiralty or maritime jurisdiction ... .” 28 U. S. C. § 1333(1). The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; if it did not, admiralty jurisdiction did not exist. See, e. g., Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13902) (CC Me. 1813) (Story, J., on Circuit). This ostensibly simple locality test was complicated by the rule that the injury had to be “wholly” sustained on navigable waters for the tort to be within admiralty. The Plymouth, 3 Wall. 20, 34 (1866) (no jurisdiction over tort action brought by the owner of warehouse destroyed in a fire that started on board a ship docked nearby). Thus, admiralty courts lacked" }, { "docid": "8762129", "title": "", "text": "required before an appeal could be taken from the order, which did not dispose of all claims against all parties. Accord Bank South Leasing, Inc. v. Williams, 769 F.2d 1497, 1500 n. 1 (11th Cir.), vacated on other grounds, 778 F.2d 704 (11th Cir.1985). Here, the district court did not make a determination pursuant to Rule 54(b). However, the district court made clear that the consolidation of the two cases was not for all purposes. The suits were consolidated for limited purposes only, and each retained its separate identity. The parties stipulated that the first action would be tried by a jury; the district court would then decide the exoneration/limitation issue. The two actions were thus essentially severed and did not merge into a single cause. See, e.g., Gulf Coast Fans v. Midwest Electronics Importers, Inc., 740 F.2d 1499, 1506-07 (11th Cir.1984) (appellant was not obligated to wait until all proceedings in both of the cases consolidated were completed because the cases were severed). As such, no certification under Rule 54(b) was necessary. The lower court expressly ordered that case No. 86-890 was dismissed for lack of subject matter jurisdiction. The court explicitly terminated the action for limitation or exoneration, ending that litigation. See Schuurman v. The Motor Vessel “Betty KV,’’ 798 F.2d 442 (11th Cir.1986). The decision of the district court dismissing appellant’s action is thus final and appealable, subject to this Court’s appellate jurisdiction under 28 U.S.C. § 1291. III. ADMIRALTY JURISDICTION A. Background Federal admiralty jurisdiction finds it source in Article III, Section 2 of the United States Constitution, which extends the judicial power “to all Cases of admiralty and maritime Jurisdiction.” Congress implemented this jurisdictional grant in what is now 28 U.S.C. § 1333(1). In tort cases, federal admiralty jurisdiction was traditionally invoked if the tort was “maritime,” i.e., if the wrong occurred on navigable waters. Determination of whether a tort was maritime thus depended upon the locality of the wrong. The Plymouth, 70 U.S. (3 Wall.) 20, 36, 18 L.Ed. 125 (1866). The locality test was long applied as the sole criterion for admiralty tort" }, { "docid": "15378772", "title": "", "text": "to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The district court granted the motion on August 29, 2005, holding that Graver’s suit must be dismissed because he had failed to establish federal admiralty jurisdiction. Gruver timely appealed the order. II. We review de novo the district court’s dismissal for lack of subject matter jurisdiction. Campbell v. Redding Med. Ctr., 421 F.3d 817, 820 (9th Cir.2005). Federal district courts have original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1); see also U.S. Const, art. III, § 2. Historically, admiralty jurisdiction turned solely on the question of whether the tort occurred on navigable waters. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). Over time, however, the test has been refined. Today, a party seeking to invoke federal maritime jurisdiction over a tort claim must satisfy both a location test and a connection test. Id. at 534, 115 S.Ct. 1043. The location test focuses on “whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Id. The connection test has two prongs, each of which must be met for admiralty jurisdiction to be proper: “A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime eommerce[.]” Id. (citation and internal quotation marks omitted). The second prong of the connection test requires us to examine “whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Id. (internal quotation marks omitted). Neither the location test nor the first prong of the connection test are at issue in this appeal. The parties agree the location test is met because the alleged assault took place aboard the Adventurous while the ship was floating on navigable waters. See id. (holding location test may be satisfied by showing tort occurred on navigable water)." }, { "docid": "6895034", "title": "", "text": "initially from the Constitution, which extends federal judicial power “to all Cases of admiralty and maritime Jurisdiction.” U.S. Const, art. Ill, § 2. Congress, in turn, embodied that power in a statute giving federal district courts “original jurisdiction ... of ... [a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1). As the Constitution fixed only the original jurisdiction of the Supreme Court, however, Congress remains free to mold the scope of the federal courts’ admiralty jurisdiction as it pleases, and it does so from time to time. Detroit Trust Co. v. The Thomas Barium, 293 U.S. 21, 48, 55 S.Ct. 31, 79 L.Ed. 176 (1934) (noting that Congress may extend admiralty jurisdiction so long as it keeps within “a proper conception of maritime concerns”). The Judiciary Act of 1789, for example, conferred upon the federal district courts exclusive jurisdiction over all cases arising from seizures made on navigable waters under the laws of impost, navigation, or trade of the United States. See 1 Erastus C. Benedict, Benedict on Admiralty § 109, at 7-21 (2002). Since then, Congress has periodically enacted specific legislation extending the conditions under which the federal courts may exercise their admiralty jurisdiction. For example, in 1948, Congress extended admiralty jurisdiction “to [ ] include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” 46 U.S.C. § 740. Prior to the enactment of § 740, an action in admiralty could not have been maintained against a vessel for damages resulting from its collision with a shore structure. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 532-33, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). Most analogous to this case, in 1920, Congress enacted the Death on the High Seas Act (“DOHSA”), which defined a cause of action in admiralty “[w]henever the death of a person shall be caused by wrongful act ... on the high seas beyond a marine league from the shore.” 46 U.S.C. § 761. On its face," }, { "docid": "15436336", "title": "", "text": "Anderson submitted a written claim seeking damages for his injuries with the Naval Legal Services Office, Mid-Atlantic. The claim was denied on April 10, 2001. Thereafter, on April 18, 2001, Anderson filed a complaint in district court under the FTCA and, alternatively, under the Suits in Admiralty Act (SAA), the Public Vessels Act (PVA), and the EAJA. In each claim, he alleged that the United States negligently failed to provide a safe working environment for him by causing two bombs to be dropped near his work site, and, as a result, he suffered physical and mental injuries. Subsequently, the United States filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), challenging the basis of subject matter jurisdiction, and the district court granted the motion to dismiss with prejudice. This appeal followed. STANDARD OF REVIEW We “[u]ndertak[e] a de novo review of the district court’s dismissal for lack of subject matter jurisdiction.” Ambassador Factors v. Rhein-, Maas- Und See-Schif-fahrtskontor GMBH, 105 F.3d 1397, 1398 (11th Cir.1997). DISCUSSION The United States Constitution authorizes federal courts to hear “all Cases of admiralty and maritime Jurisdiction.” U.S. Const, art. Ill, § 2, cl. 1. “Congress has embodied that power in a statute giving federal district courts ‘original jurisdiction ... of ... [a]ny civil case of admiralty or maritime jurisdiction....’” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (alterations in original) (quoting 28 U.S.C. § 1333(1)). Moreover, in 1948 Congress enacted the EAJA, which extends admiralty jurisdiction to “include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” 46 U.S.C. app. § 740. In such cases, however, “the Public Vessels Act or Suits in Admiralty Act, as appropriate, shall constitute the exclusive remedy for all causes of action arising after June 19, 1948.” Id. I. Anderson contends that his claim against the United States did not arise in admiralty, and, therefore, it was proper under the" }, { "docid": "12537022", "title": "", "text": "Procedure. II. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION STANDARD At the outset of a case, a plaintiff must “establish jurisdiction ... by means of a nonfrivolous assertion of jurisdictional elements .... ” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). When such jurisdiction is challenged, “the party invoking subject matter jurisdiction ... has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction.” Bank One, Texas N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992). Moreover, “any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure before a judge alone.... ” Jerome B. Grubart, Inc., 513 U.S. at 537-538, 115 S.Ct. 1043. Here the Bernsteins claim that subject matter jurisdiction in admiralty rests on two alternative grounds: (1) the incident took place on the navigable waters of the United States, and (2) even if it did not, the Limitation of Liability Act creates an independent basis for the assertion of admiralty jurisdiction. III. ANALYSIS OF ADMIRALTY JURISDICTION PREMISED ON NAVIGABLE WATERS A party seeking to invoke federal admiralty jurisdiction over a tort claim pursuant to 28 U.S.C. § 1333(1) must establish both that the wrong occurred upon the navigable waters of the United States (the “locality test”) and that the activity giving rise to the incident had a substantial relationship to traditional maritime activity (the “nexus test”). See Florio v. Olson, 129 F.3d 678, 680 (1st Cir.1997). As the first ground for their motion to dismiss, the Bergerons contend that Lake Winnisquam, the location of the boating accident, is not part of the “navigable waters of the United States” because it is a land-locked lake located entirely within New Hampshire and, “[bjecause of numerous lockless dams and hydroelectric stations, it is im possible to travel by any type of watercraft from Lake Winnisquam to any other state, to the open ocean, or to any foreign country.” Def.Mem. at 3. As established by the Supreme Court in 1870, waters are “navigable” for the purposes of federal" }, { "docid": "8735950", "title": "", "text": "the houseboat, turned on the air conditioning, and went to sleep. During the night, the Hernandez family was seriously injured by carbon monoxide fumes within the houseboat. Before the Hernandez family filed suit for their injuries, H20 filed its own action in the federal district court seeking to limit its liability under the Vessel Owner’s Liability Act. It now appeals the district court’s dismissal for lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291. We conclude, as did the district court, that the incident which caused injury to the Hernandez family did not have the potential to disrupt maritime commerce; therefore, subject matter jurisdiction predicated upon a claim in admiralty was lacking, and we affirm the district court’s dismissal under Rule 12(b)(1). I Subject Matter Jurisdiction If H20’s action was not properly a suit in admiralty relating to a maritime tort, the district court lacked jurisdiction because this was the only basis for the court’s subject matter jurisdiction. We review de novo a district court’s determination that it lacks subject matter jurisdiction. Wilson v. A.H. Belo Corp., 87 F.3d 393, 396 (9th Cir.1996). ' We review for clear error the district court’s findings of fact relevant to its determination of subject matter jurisdiction. Id. The Constitution provides that “[t]he judicial Power shall extend ... to all Cases of admiralty and maritime Jurisdiction.” U.S. Const. Art. Ill, § 2. Congress has granted federal district courts original, exclusive jurisdiction over “[a]ny civil case of admiralty or 'maritime jurisdiction” in 28 U.S.C. § 1333d). The Supreme Court recently considered when an alleged tort involving a pleasure craft, such as the houseboat in this ease, forms the proper basis for maritime tort subject matter jurisdiction. In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), the Court established a two-pronged “location” and “connection” test for such jurisdiction. Id. at-, 115 S.Ct. at 1048. The “location” part of the test asks whether “the tort occurred on navigable water or whether [the] injury suffered on land was caused by a" }, { "docid": "2343641", "title": "", "text": "by a vessel on navigable waters. On February 27, 2001, the district court granted Total Marine’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), holding that the Scotts failed to make any allegations of facts that could arguably establish jurisdiction under the Jones Act. On June 19, 2001, the district court granted summary judgment in favor of Trump Indiana. While noting it had doubts as to whether Scott was covered by the LHWCA, the court held that, even assuming Scott would be covered by the LHWCA, there was no evidence of any negligence by the Trump Casino. The Scotts filed a timely notice of appeal, challenging the district court’s rulings with respect to Lola Crane, Nichols, and Trump Indiana. The Scotts do not appeal the court’s ruling on Total Marine’s Rule 12(b)(6) motion to dismiss. ANALYSIS A. Lola Crane and Mark Nichols We review a district court’s legal determination as to whether subject matter jurisdiction exists de novo, while the district court’s factual determinations are reviewed for clear error. Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 381 (7th Cir.2001). Article III of the Constitution grants federal jurisdiction over “all Cases of admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2. Under 28 U.S.C. § 1333, “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, .... ” Traditionally, admiralty tort jurisdiction existed only when the tort in question occurred on navigable waters. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531-32, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). However, in 1948, Congress enacted the Extension of Admiralty Jurisdiction Act, 48 U.S.C. app. § 740, which provides, “The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” Following the Extension of Admiralty Jurisdiction Act, courts have established a two-part test to use in determin ing whether admiralty" }, { "docid": "18242692", "title": "", "text": "shall extend ... to all Cases of admiralty and maritime Jurisdiction.” U.S. Const, art. Ill, § 2. Congress has granted federal district courts original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1). “The primary purpose of federal admiralty jurisdiction is to protect commercial shipping with uniform rules of con duct.” Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 298 (2d Cir.2009) (internal citation, quotation marks, and alteration omitted). To determine whether a tort action lies within the federal courts’ admiralty jurisdiction, we apply the two-part test set forth by the Supreme Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,115 S.Ct. 1043,130 L.Ed.2d 1024 (1995): First, the alleged tort must have occurred on or over “navigable waters.” Second, the activity giving rise to the incident must have had a substantial relationship to traditional maritime activity, such that the incident had a potentially disruptive influence on maritime commerce. Vasquez, 582 F.3d at 298 (citing Grubart, 513 U.S. at 534, 115 S.Ct. 1043); see also Admiralty Extension Act of 1948, 46 U.S.C. § 30101(a) (“Extension Act”) (federal admiralty jurisdiction “extends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land”). Applying this standard, we conclude that the ramp on which Velez slipped and fell is properly considered an extension of the land, and that this accident was not “caused by” the vessel or its appurtenances. As an initial matter, it is well established that “[p]iers and docks [are] ... deemed extensions of land” for purposes of determining admiralty jurisdiction, and so “injuries inflicted to or on them [are] ... not compensable under the maritime law.” Victory Carriers, Inc. v. Law, 404 U.S. 202, 206-07, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (footnotes omitted). Similarly, “courts specifically examining the nature of floating docks ... [which] rise and fall with the tides ... have consistently held that they do not possess the characteristics associated with maritime objects.” S. Port Marine," }, { "docid": "15436337", "title": "", "text": "authorizes federal courts to hear “all Cases of admiralty and maritime Jurisdiction.” U.S. Const, art. Ill, § 2, cl. 1. “Congress has embodied that power in a statute giving federal district courts ‘original jurisdiction ... of ... [a]ny civil case of admiralty or maritime jurisdiction....’” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (alterations in original) (quoting 28 U.S.C. § 1333(1)). Moreover, in 1948 Congress enacted the EAJA, which extends admiralty jurisdiction to “include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” 46 U.S.C. app. § 740. In such cases, however, “the Public Vessels Act or Suits in Admiralty Act, as appropriate, shall constitute the exclusive remedy for all causes of action arising after June 19, 1948.” Id. I. Anderson contends that his claim against the United States did not arise in admiralty, and, therefore, it was proper under the FTCA. The FTCA’s waiver of sovereign immunity excludes “[a]ny claim for which a remedy is provided by [the PVA or SSA], relating to claims or suits in admiralty against the United States.” 28 U.S.C. § 2680(d). Thus, if admiralty jurisdiction exists for Anderson’s claim, it cannot be brought under the FTCA. See id. To determine whether a claim falls under admiralty jurisdiction, the United States Supreme Court enunciated two tests, which address the location where the injury occurred and the incident’s connection to maritime activity. Jerome B. Grubart, Inc., 513 U.S. at 534, 115 S.Ct. 1043. [Under] the location test[, a court] must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.... [Under the connection test, a] court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a" }, { "docid": "2343642", "title": "", "text": "379, 381 (7th Cir.2001). Article III of the Constitution grants federal jurisdiction over “all Cases of admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2. Under 28 U.S.C. § 1333, “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, .... ” Traditionally, admiralty tort jurisdiction existed only when the tort in question occurred on navigable waters. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531-32, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). However, in 1948, Congress enacted the Extension of Admiralty Jurisdiction Act, 48 U.S.C. app. § 740, which provides, “The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” Following the Extension of Admiralty Jurisdiction Act, courts have established a two-part test to use in determin ing whether admiralty jurisdiction exists. “A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity.” Grubart, 513 U.S. at 534, 115 S.Ct. 1043. “A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Id (citing 46 U.S.C. app. § 740). The connection with maritime activity assessment, also known as the nexus test, examines two issues, first, whether the incident in question has “a potentially disruptive effect on maritime commerce,” and second, “whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Weaver, 255 F.3d at 382 (internal quotations and citations omitted). We focus first on the location prong. It is undisputed that the alleged tort did not occur on navigable water. Therefore, for admiralty jurisdiction to exist, Scott’s injury must have been “caused by” the vessel Trump Casino. The" }, { "docid": "12537021", "title": "", "text": "on August 15, 1997, Sean Kelly was operating a small motorboat owned by the plaintiffs Gary and Claire Bernstein (the “Bernsteins”) on Lake Winnisquam in New Hampshire. Kelly, who was pulling Michael P. Berger-on, II behind the motorboat in an inner tube, maneuvered in a manner that caused the motorboat to collide with and seriously injure Bergeron. As a result of his injuries, Bergeron and his parents (collectively, the “Bergerons”), filed suit against the Bernsteins in the Superior Court of Massachusetts. In turn, the Bernsteins filed the present petition under the Shipowner’s Limitation of Liability Act, 46 App.U.S.C. § 181 et seq., (“the Act”), in an attempt to limit their liability to the value of the motorboat ($7,000). The suit in the Superior Court has been stayed pending the outcome of this petition. Arguing that this case does not fall under the Court’s admiralty jurisdiction, the sole basis of subject matter jurisdiction asserted in the petition, the Bergerons filed a motion to dismiss the petition pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. II. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION STANDARD At the outset of a case, a plaintiff must “establish jurisdiction ... by means of a nonfrivolous assertion of jurisdictional elements .... ” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). When such jurisdiction is challenged, “the party invoking subject matter jurisdiction ... has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction.” Bank One, Texas N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992). Moreover, “any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure before a judge alone.... ” Jerome B. Grubart, Inc., 513 U.S. at 537-538, 115 S.Ct. 1043. Here the Bernsteins claim that subject matter jurisdiction in admiralty rests on two alternative grounds: (1) the incident took place on the navigable waters of the United States, and (2) even if it did not, the Limitation of Liability Act creates an independent basis for the assertion of" }, { "docid": "19138149", "title": "", "text": "current test for admiralty tort jurisdiction in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). That case involved a tort claim arising from construction work in the Chi cago River. A construction company had used a crane sitting on a barge in the river to drive wooden pilings into the riverbed; it thereby (allegedly) cracked a freight tunnel running under the river, causing water to pour down into the tunnel and flood buildings in downtown Chicago. The flood victims filed a number of tort actions in state court; in response, the construction company filed a petition for limitation of liability in federal district court, invoking the court’s admiralty jurisdiction. Id. at 529-31,115 S.Ct. 1043. The Supreme Court held that this case fell within the scope of federal admiralty jurisdiction. It began by laying out its analytical framework: [A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. Id. at 534, 115 S.Ct. 1043 (internal quotation marks and citations omitted). The Court then proceeded to apply that analysis to the facts before it. It held that the location test was met because the alleged injury, though occurring on land, was proximately caused by a vessel on navigable water; the location of the tort was therefore within the bounds of admiralty as defined by the Extension of Admiralty Jurisdiction Act. Id. at 534-37, 115 S.Ct. 1043; see 46 U.S.C. § 30101(a). It" }, { "docid": "11738058", "title": "", "text": "[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” “Federal admiralty jurisdiction exists giving a court jurisdiction over a dispute if the tort occurs on navigable waters and the tort bears a significant relationship to traditional maritime activity.” Sanders v. Placid Oil Co., 861 F.2d 1374, 1376-77 (5th Cir.1988), citing Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and connection with maritime activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), cited by Venable v. Louisiana Workers’ Compensation Corp., 740 F.3d 937, 944 (5th Cir.2013). For the first prong, the court asks whether the tort occurred on navigable waters or whether injury suffered on land was caused by a vessel on navigable water. Id., id. For the connection prong, the court examines “ ‘the general features of the type of incident involved,’ to determine whether the incident has ‘a potentially disruptive impact on maritime commerce’” and determines “whether the general character of the activity giving rise to the incident shows a substantial relationship to maritime activity.” Id. [citations omitted]; id. Traditionally a plaintiff had three possible options for bringing an admiralty or maritime claim: he could bring his suit in admiralty jurisdiction in federal court under the grant of original and exclusive subject matter jurisdiction under § 1333, typically with no right to trial by jury; he could bring a diversity of citizenship claim in a federal district court, with the right to a jury if one party demands it, and he could limit that jurisdiction with a binding forum-selection clause; or he could assert his claim at law (at common law), grounded in tort or contract, under the saving to suitors clause in a state court. See 14A Charles Alan Wright, et al., Federal Practice and Procedure § 3672" }, { "docid": "5800637", "title": "", "text": "White timely appeals. II. We review de novo the district court’s dismissal of a complaint for failure to establish subject matter jurisdiction. Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994). The authority of federal courts to hear eases in admiralty stems directly from the Constitution, which extends federal judicial power “to all Cases of admiralty and maritime Jurisdiction.” U.S. Const. art. Ill, § 2; Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., — U.S.-,-, 115 S.Ct. 1043, 1047, 130 L.Ed.2d 1024 (1995). Congress has codified this power, vesting in the federal district courts original and exclusive jurisdiction over “[a]ny civil ease of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1). With respect to torts involving vessels, admiralty jurisdiction is confined to actions that satisfy conditions both of location and connection with maritime activity. Grubart, — U.S. at -, 115 S.Ct. at 1048; Sisson v. Ruby, 497 U.S. 358, 362, 110 S.Ct. 2892, 2895-96, 111 L.Ed.2d 292 (1990); David Wright Charter Serv., Inc. v. Wright, 925 F.2d 783, 784 (4th Cir.1991); Foster v. Peddicord, 826 F.2d 1370, 1374 (4th Cir. 1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 766 (1988). Thus, as most recently articulated by the Supreme Court, to satisfy the location test, the tort must occur on navigable waters, or, if suffered on land, at least be caused by a vessel on navigable water. Grubart, — U.S. at-, 115 S.Ct. at 1048 (citing Sisson, 497 U.S. at 362, 110 S.Ct. at 2895). Additionally, in order to meet the requisite connection test, the facts giving rise to the wrong must bear a sufficient connection to maritime activity. Id. This inquiry requires that the court first determine whether “the general features of the type of incident involved” have “a potentially disruptive impact on maritime commerce,” and second, “whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Id. (quoting Sisson, 497 U.S. at 365, 364 n. 2, 110 S.Ct. at 2897, 2896 n. 2) (quotation marks omitted). The district court did not" }, { "docid": "18242691", "title": "", "text": "PER CURIAM: Plaintiff-Appellant MLC Fishing, Inc. (“MLC”) appeals from the district court’s judgment dismissing for want of subject matter jurisdiction MLC’s complaint seeking exoneration from or limitation of liability pursuant to the Exoneration and Limitation of Liability Act (the “Limitation Act”), 46 U.S.C. § 30501 et seq. MLC owns the fishing vessel “Capt. Mike,” which at all relevant times was docked at Capt. Mike’s Marina in Howard Beach, Queens. MLC initiated this limitation proceeding following an accident that took place when Defendant-Appellee Julio Angel Velez, intending to go fishing as a passenger aboard the Capt. Mike, slipped and fell on a ramp leading from the marina to a floating dock that passengers were required to traverse in order to access the vessel. “We review de novo the district court’s dismissal for lack of subject matter jurisdiction.” Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir.2011) (per curiam). “The burden of demonstrating subject-matter jurisdiction lies with the party asserting it....” Mathirampuzha v. Potter, 548 F.3d 70, 85 (2d Cir.2008). The Constitution provides that “[t]he judicial Power shall extend ... to all Cases of admiralty and maritime Jurisdiction.” U.S. Const, art. Ill, § 2. Congress has granted federal district courts original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1). “The primary purpose of federal admiralty jurisdiction is to protect commercial shipping with uniform rules of con duct.” Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 298 (2d Cir.2009) (internal citation, quotation marks, and alteration omitted). To determine whether a tort action lies within the federal courts’ admiralty jurisdiction, we apply the two-part test set forth by the Supreme Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,115 S.Ct. 1043,130 L.Ed.2d 1024 (1995): First, the alleged tort must have occurred on or over “navigable waters.” Second, the activity giving rise to the incident must have had a substantial relationship to traditional maritime activity, such that the incident had a potentially disruptive influence on maritime commerce. Vasquez, 582 F.3d at 298 (citing Grubart, 513 U.S. at 534, 115 S.Ct. 1043); see" }, { "docid": "8762130", "title": "", "text": "court expressly ordered that case No. 86-890 was dismissed for lack of subject matter jurisdiction. The court explicitly terminated the action for limitation or exoneration, ending that litigation. See Schuurman v. The Motor Vessel “Betty KV,’’ 798 F.2d 442 (11th Cir.1986). The decision of the district court dismissing appellant’s action is thus final and appealable, subject to this Court’s appellate jurisdiction under 28 U.S.C. § 1291. III. ADMIRALTY JURISDICTION A. Background Federal admiralty jurisdiction finds it source in Article III, Section 2 of the United States Constitution, which extends the judicial power “to all Cases of admiralty and maritime Jurisdiction.” Congress implemented this jurisdictional grant in what is now 28 U.S.C. § 1333(1). In tort cases, federal admiralty jurisdiction was traditionally invoked if the tort was “maritime,” i.e., if the wrong occurred on navigable waters. Determination of whether a tort was maritime thus depended upon the locality of the wrong. The Plymouth, 70 U.S. (3 Wall.) 20, 36, 18 L.Ed. 125 (1866). The locality test was long applied as the sole criterion for admiralty tort jurisdiction. In fact, [t]he strict locality standard was perfunctorily repeated with such frequency that most courts seemingly lost track of the failure of the Supreme Court to explicitly decide whether maritime tort jurisdiction turned solely on maritime locality. Kelly v. Smith, 485 F.2d 520, 523 (5th Cir.1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). With time, however, and the advent of new technologies, it became apparent that a “purely mechanical application of the locality test” alone did not suffice as a predicate for admiralty jurisdiction. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 258-61, 93 S.Ct. 493, 499-501, 34 L.Ed.2d 454 (1972). The federal courts created exceptions to the strict locality rule, to avoid unjust results in situations where the tort had no maritime locality but did bear a relationship to maritime service, navigation or commerce. Id. at 259, 93 S.Ct. at 500. See, e.g., O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943) (Jones Act applied to" } ]

[ { "docid": "469896", "title": "", "text": "business, because such taxes are not considered derived from the conduct of a trade or business.” General Explanation, supra, at 266; see also id, at 266 n. 60 (“Personal interest does not include interest on taxes, other than income taxes, that are incurred in connection with a trade or business.”) (emphasis added); Miller, 65 F.3d at 690-91. All that the Redlarks have done to support their argument that the Commissioner’s interpretation of the Code is an unreasonable one is to point once again to the consistent practice, prior to 1986, of allowing deductions on income tax deficiency interest of the kind that they seek here. But, as we have explained, the fact that the reasonable construction that an agency adopts in interpreting an ambiguous statute is inconsistent with past interpretations or the past practice of the agency does not, without more, call into question the propriety or the reasonableness of the new construction. See Chevron, 467 U.S. at 863-64, 104 S.Ct. at 2791-92; see also National Muffler Dealers Assoc, v. United States, 440 U.S. 472, 485-86, 99 S.Ct. 1304, 1311-12, 59 L.Ed.2d 519 (1979). Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A) represents a reasonable interpretation of a facially ambiguous statute. It is neither arbitrary, capricious, nor in conflict with any other statutory provision or the purposes of the Code as a whole. That being so, our inquiry is at an end. We REVERSE the decision of the tax court and REMAND for further proceedings consistent with this opinion. REVERSED and REMANDED. . We note that the \"properly allocable\" language was not a part of the Tax Reform Act as originally drafted, but entered the Code by amendment in 1988. Originally, I.R.C. § 163(h)(2) provided: For purposes of this subsection, the term \"personal interest” means any interest allowable as a deduction under this chapter other than'—• (A) interest paid or accrued on indebtedness incurred or continued in connection with the conduct of a trade or business (other than the trade or business of performing services as an employee). I.R.C. § 163(h)(2) (1986). Congress amended this definition in the Technical and Miscellaneous Revenue Act" } ]

[ { "docid": "17356001", "title": "", "text": "ILANA DIAMOND ROVNER, Circuit Judge. On then- income tax returns for 1992 and 1994, Nick and Helen Kikalos deducted as a business expense the interest they paid on tax deficiencies that had been assessed for prior years. The Internal Revenue Service disallowed the deduction pursuant to a temporary regulation that deems interest owed on tax underpayments to be nondeductible personal interest, even if the income giving rise to the tax liability derives from the taxpayer’s business. See Temp. Treas. Reg. § 1.163 — 9T(b)(2)(i)(A), 26 C.F.R. § 1.163-9T(b)(2)(i)(A). Following its decision in Redlark v. Commissioner, 106 T.C. 31, 1996 WL 10243 (1996), rev’d, 141 F.3d 936 (9th Cir.1998), which by a divided vote held that regulation invalid, the tax court concluded that the tax underpayments were properly allocable to Nick Kikalos’ unincorporated business, see 26 U.S.C. § 163(h)(2)(A), and that the interest on the underpayments was therefore deductible as a business expense. Kikalos v. Commissioner, 75 T.C.M. (CCH) 1924, 1932-33, 1998 WL 90729 (1998). The Commissioner of Internal Revenue appeals. In accord with every other circuit that has addressed the issue, we sustain the Commissioner’s determination that interest owed on individual income tax deficiencies is not deductible as a business expense, irrespective of the source of the income giving rise to the tax liability. See McDonnell v. United States, 180 F.3d 721 (6th Cir. May 27); Allen v. United States, 173 F.3d 533 (4th Cir.1999); Redlark v. Commissioner, 141 F.3d 936 (9th Cir.1998); Miller v. United States, 65 F.3d 687 (8th Cir.1995); see also Stecher v. United States, 1998 WL 427369 (D. Col. June 1, 1998); In re Vale, 204 B.R. 716, 739-44 (Bankr.N.D.Ind.1996). We therefore reverse the decision of the tax court in this respect. I. Since 1971, Nick Kikalos has operated a sole proprietorship, Nick’s Liquors, which purveys beer, liquor, and cigarettes to the public. During the relevant tax years, Nick’s Liquors did business at three locations in Hammond, Indiana. Nick and his wife Helen supervised one of the stores, while their son and daughter managed the other two. Hammond is located near the Illinois state line, not" }, { "docid": "20769892", "title": "", "text": "adjustments herein, i.e., accounting errors in applying cash and accrual methods, petitioners have satisfied any such narrow standard. Reise v. Commissioner, supra (cash versus accrual changes); cf. Polk v. Commissioner, supra (involving inventory valuations). We reject respondent’s attack to the extent that it goes beyond the above quotation from Polk and is directed against the pre-section 163(h) decided cases generally. Concededly there is some confusion in the reasoning of the decided cases, but the thrust of their bottomline conclusions is clear. Exceptions will be accorded to the “ordinary and necessary” provision of section 162 only when there is explicit legislative indication that such a result was intended. Thus, we agree with petitioners that there is a consistent body of pre-section 163(h) case law holding that, at least under limited circumstances such as were involved in Standing v. Commissioner, supra, Polk v. Commissioner, supra, and Reise v. Commissioner, supra, deficiency interest is a deductible business expense under section 162 and therefore under section 62(a)(1). See Brennan & Megaard, “Deducting Interest on Noncorporate Trade or Business Tax Deficiencies: Uncertainty Exists Under the New Temporary Regulations”, 13 Rev. of Taxn. of Individuals 22 (1989). With the foregoing as background, we address the critical issue before us, namely, the effect of section 163(h)(2)(A) and section 1.163-8T, Temporary Income Tax Regs., 52 Fed. Reg. 24999 (July 2, 1987), and section 1.163-9T(b)(2)(i)(A), Tern- porary Income Tax Regs., supra, which specifically denies the deduction herein claimed. This case is one of first impression in this Court on this issue. See supra p. 33. We note, however, that the Court of Appeals for the Eighth Circuit in Miller v. United States, 65 F.3d 687 (1995), although agreeing without conclusion as to the pre-section 163(h) state of the law, has accepted respondent’s position and held the temporary regulation a reasonable interpretation of the statute and therefore valid. Initially, we note that temporary regulations are accorded the same weight as final regulations. Peterson Marital Trust v. Commissioner, 102 T.C. 790, 797 (1994). The regulations involved herein were promulgated pursuant to the general authority granted to the Secretary of the Treasury" }, { "docid": "17356014", "title": "", "text": "notice of a “proposed” regulation for rule-making purposes. See 52 Federal Register 48407, 1987 WL 144732 (I.R.S. Dec. 22). What, if anything, has come of that notice in the ensuing twelve years is unknown to us. In the absence of any confirmation that the temporary regulation has, after the fact, undergone the scrutiny that typifies a pre-adoption notice and comment period, one could argue that section 1.163-9T(b)(2)(i)(A) is entitled to no more deference than a proposed regulation. See United Transportation Union-Illinois Legislative Bd. v. Surface Transportation Bd., 169 F.3d 474, 480 (7th Cir.1999) (“Lesser deference may be in order depending on the ‘circumstances surrounding the agency’s adoption of its statutory interpretation.’ ”), quoting Bankers Life, 142 F.3d at 979 (additional citation omitted); David J. Kastanis, Note, Treatment of Computer Software Under the Foreign Sales Corporation (FSC) Provisions of the Internal Revenue Code, 19 Hastings Int’l & Comp. L.Rev. 597, 621 n. 155 (1996). Whatever questions the “temporary” nature of this regulation might raise as to the degree of deference it is owed, the parties themselves have chosen not to pursue them. The Commissioner has flagged the issue but has assumed that the temporary regulation should nonetheless be examined within the Chevron framework. Commissioner Br. at 21. The Kikalos have likewise assumed that Chevron applies. See Kikalos Br. at 14, 15, 23-24. The cases themselves draw no distinction between temporary and final regulations in terms of the deference owed to the regulation. Indeed, each of the other courts of appeals that has addressed this regulation has accorded it full Chevron deference. See McDonnell v. United States, supra, 180 F.3d 721, 722-23; Allen v. United States, supra, 173 F.3d at 537-38; Redlark v. Commissioner, supra, 141 F.3d at 939-40; Miller v. United States, supra, 65 F.3d at 689-90. Deferring to a lesser degree would benefit the Kikalos, who after all are contesting the regulation’s validity. Yet, they have pursued no argument to that end. Instead, they have embraced the tax court’s view that the regulation is in direct conflict with the statute and, consequently, must fall no matter how much deference we" }, { "docid": "20769916", "title": "", "text": "direct one rather than a remote one”, giving State income taxes as an example of a nondeductible expense. Reise v. Commissioner, 35 T.C. 571, 577 (1961), affd. 299 F.2d 380 (7th Cir. 1962). In Maxcy v. Commissioner, 26 T.C. 526 (1956), and Estate of Broadhead v. Commissioner, T.C. Memo. 1966-26, affd. 391 F.2d 841 (5th Cir. 1968), we sustained the disallowance of the deduction for State income taxes on the ground of failure of proof as to the requisite business connection. The judicial history of Miller v. United States, 65 F.3d 687 (8th Cir. 1995), affg. 95-1 USTC par. 50,068, 76 AFTR 2d 95-5162 (D.N.D. 1994), revg. 841 F. Supp. 305 (D.N.D. 1993), shows that the District Court initially entered an order, on cross-motions for summary judgment, holding that sec. 1.163-9T(b)(2)(I)(A), Temporary Income Tax Regs., 52 Fed. Reg. 48409 (Dec. 22, 1987), was invalid. Miller v. United States, 841 F. Supp. 305 (D.N.D. 1993). After further discovery, the District Court entered a decision for the Government on the ground that the deficiency interest could not be found to constitute an ordinary and necessary business expense. Miller v. United States, 95-1 USTC par. 50,068, 76 AFTR 2d 95-5162 (D.N.D. 1994). The court found the taxpayer “chose to operate what is an obviously improper income deferral scheme in order to defer the reporting of substantial amounts of money as taxable income.” Id. 95-1 USTC at 87,232, 76 AFTR 2d a.t 95-5166. The Court of Appeals for the Eighth Circuit then held that, contrary to the conclusion of the District Court, the regulation was valid, and as such, disposi-tive of the taxpayers’ claimed interest deduction. Miller v. United States, 65 F.3d 687 (8th Cir. 1995). Because the District Court’s ultimate conclusion was that the interest at issue was nondeductible personal interest, the Court of Appeals affirmed. Personal interest does not include interest on taxes, other than income taxes, that are incurred in connection with a trade or business. (For the rule , that taxes on net income are not attributable to a trade or business, see Treas. Reg. sec. 1.62 — 1(d), relating" }, { "docid": "20769915", "title": "", "text": "the conduct of a trade or business (other than the trade or business of performing services as an employee), [Tax Reform Act of 1986, Pub. L. 99-514, sec. 511(b), 100 Stat. 2085, 2246.] The amended language, effective for the years in issue, was intended to conform the definition of personal interest to the language of the related passive loss and investment interest limitation provisions, to permit consistent application of a standard for allocation of interest. See S. Rept. 100-445,- at 36 (1988); H. Rept. 100-795, at 35 (1988). There is no indication that the change in language was intended to make any substantive-change in the meaning of the statutory language. The standard adopted by Aaron v. Commissioner, 22 T.C. 1370 (1954), imported the statement in the legislative history of sec. 22(n)(l) of the Internal Revenue Code of 1939 (the predecessor of sec. 62(a)(1)) to the effect that expenses deductible under that section were those “directly incurred in the carrying on of a trade or business” and that “the connection contemplated by the statute is a direct one rather than a remote one”, giving State income taxes as an example of a nondeductible expense. Reise v. Commissioner, 35 T.C. 571, 577 (1961), affd. 299 F.2d 380 (7th Cir. 1962). In Maxcy v. Commissioner, 26 T.C. 526 (1956), and Estate of Broadhead v. Commissioner, T.C. Memo. 1966-26, affd. 391 F.2d 841 (5th Cir. 1968), we sustained the disallowance of the deduction for State income taxes on the ground of failure of proof as to the requisite business connection. The judicial history of Miller v. United States, 65 F.3d 687 (8th Cir. 1995), affg. 95-1 USTC par. 50,068, 76 AFTR 2d 95-5162 (D.N.D. 1994), revg. 841 F. Supp. 305 (D.N.D. 1993), shows that the District Court initially entered an order, on cross-motions for summary judgment, holding that sec. 1.163-9T(b)(2)(I)(A), Temporary Income Tax Regs., 52 Fed. Reg. 48409 (Dec. 22, 1987), was invalid. Miller v. United States, 841 F. Supp. 305 (D.N.D. 1993). After further discovery, the District Court entered a decision for the Government on the ground that the deficiency interest could not" }, { "docid": "469887", "title": "", "text": "business of performing services as an employee).” I.R.C. § 163(h)(2)(A) (emphasis added). In promulgating Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A), the Commissioner took the position that interest on personal income tax deficiencies always constitutes a personal obligation and so is never “properly allocable to a trade or business.” The parties agree that the disputed interest amounts are not deductible under the regulation. The parties disagree vigorously as to whether the regulation constitutes a valid interpretation of the Internal Revenue Code. II. This dispute centers on the meaning of the words, “properly allocable,” in I.R.C. § 163(h)(2)(A). The Redlarks argue that those words refer narrowly and unambiguously to questions of accounting practice. Prior to the addition of § 163(h)(2)(A) to the tax code in the Tax Reform Act of 1986, they explain, there was a consistent body of ease law holding that interest on business-related personal income tax deficiencies was deductible, provided that the deficiencies constituted an ordinary and necessary expense in the conduct of the business. See I.R.C. § 162(a) (“There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business----”); Reise v. Commissioner, 35 T.C. 571, 1961 WL 1350 (1961), affd, 299 F.2d 380 (7th Cir.1962); Polk v. Commissioner, 31 T.C. 412, 1958 WL 1213 (1958), affd, 276 F.2d 601 (10th Cir. 1960); Standing v. Commissioner, 28 T.C. 789, 1957 WL 1159 (1957), affd, 259 F.2d 450 (4th Cir.1958). See also Miller v. U.S., 65 F.3d 687, 690 (8th Cir.1995) (“Prior to the 1986 Tax Reform Act, courts consistently held that tax deficiency interest arising from business income was deductible as an ordinary and necessary business expense under I.R.C. §§ 62(a)(1) and 162.”) It is the Red-larks’ position that Congress incorporated this body of case law into I.R.C. § 163(h)(2)(A) when it used the words, “properly allocable.” Under their reading, those words refer only to the “propriety,” from an accounting standpoint, of “allocating” personal income tax deficiencies to the conduct of a trade or business. The statute must be read, the Redlarks argue, to" }, { "docid": "6608000", "title": "", "text": "That has been accomplished by the enactment of the Section 163(h) prohibition of deductions for “personal interest”-a generic prohibition with limited stated exceptions, which include “interest paid or accrued on indebtedness properly allocable to a trade or business ...” and “investment inter est.” Thus Section 163(h) reads in relevant part: (1) In general.'—-In the case of a taxpayer other than a corporation, no deduction shall be allowed under this chapter for personal interest paid or accrued during the taxable year. (2) Personal interest.—For purposes of this subsection, the term “personal interest” means any interest allowable as a deduction under this chapter other than— (A) interest paid or accrued on indebtedness properly allocable to a trade or business (other than the trade or business of performing services as an employee), (B) any investment interest (within the meaning of subsection (d)).... Tedoris urge that the interest charge for their DISC-related deferred tax liability is not “personal interest” because it comes within each of the Section 163(h)(2)(A) and (B) exceptions (only one of those arguments needs to succeed in order for Tedor-is to prevail). No caselaw has dealt with the precise question whether either of those exceptions applies to such a DISC-generated interest charge. Does the Regulation Control? Because Redlark, 141 F.3d at 939-40 held that the phrase “properly allocable” in Section 163(h)(2)(A) was ambiguous and that the Regulation was a reasonable interpretation of the Code, the Regulation’s validity is beyond question here. Indeed, four other circuits have held that the Regulation is valid and that income tax deficiencies cannot be considered “indebtedness properly allocable to a trade or business” even when the income underlying the deficiency originates from the taxpayer’s own business (in order of decision, Miller v. United States, 65 F.3d 687 (8th Cir.1995); Allen v. United States, 173 F.3d 533 (4th Cir.1999); McDonnell v. United States, 180 F.3d 721 (6th Cir.1999) and Kikalos v. Commissioner, 190 F.3d 791 (7th Cir.1999)). While Redlark involved the deduction of interest payments made on tax deficiencies by a couple running an unincorporated business, the same ambiguous phrase is implicated in this case, where the" }, { "docid": "11278202", "title": "", "text": "(General Explanation of the Tax Reform Act of 1969 is a “compelling contemporary indication” of the effect of a statutory provision). We also note that subsequent legislative actions have not indicated any disagreement with the interpretation of I.R.C. § 163(h)(2)(A) embodied in the regulations. In 1988, Congress amended the definition of “personal interest” in I.R.C. § 163(h)(2)(A), but expressed no dissatisfaction with the rule adopted in the regulations that interest on income tax deficiencies constitutes personal interest per se. See Technical and Miscellaneous Revenue Act of 1988, Pub.L. No. 100-647, § 1005(c)(4), 1988 U.S.C.C.A.N. (102 Stat.) 3342, 3390. Congress’ failure to change a challenged regulation when amending the relevant statutory provision “is an indication that Congress did not perceive the regulation to be unreasonable or inconsistent with Congressional intent.” Hefti v. Commissioner, 983 F.2d 868, 872 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2349, 124 L.Ed.2d 258 (1993). The taxpayers argue that interest on income tax deficiencies arising from business activity has been historically deductible as a business expense under I.R.C. §§ 62(a)(1) and 162 and, because those provisions of the statute were unaltered with the Tax Reform Act of 1986, Congress did not intend to alter case law that had previously allowed the deductibility of such interest. Even if we agreed that the taxpayer’s argument had some logical force, our decision would remain unaltered. Our role here is not to determine whether other reasonable interpretations of the statute exist, but in stead to consider whether the regulation at issue, that noncorporate income tax deficiency interest derived from whatever source is personal interest, is a permissible construction of the statute. Because Temp. Treas.Reg. § 1.163 — 9T(b)(2)(i)(A) is neither inconsistent with the language of the statute nor at odds with the legislative history and directly tracks the statement of the staff committee in the General Explanation, we conclude the regulation represents a permissible construction of the statute. The regulation adopts the reasonable rule that an individual’s income tax liability, regardless of the nature of the income giving rise to the liability, is a personal obligation and that, consequently," }, { "docid": "20769905", "title": "", "text": "deductible charitable contributions, Congress made clear, by statutory provision, that such limitation applied as well to the nondeductibility of charitable contributions as ordinary and necessary business expenses under section 23(a)(2) of the Internal Revenue Code of 1939. Our reluctance is reinforced by the fact that the conference committee report makes it clear, at the outset, that personal interest does not include “interest incurred or continued in connection with a trade or business”. H. Conf. Rept. 99-841, supra at 11-154, 1986-3 C.B. (Vol. 4) at 154; see also S. Rept. 99-313, supra at 804-806, 1986-3 C.B. (Vol. 3) at 804-806. This provides a broad context in which to evaluate the impact of the exception for interest on an indebtedness allocable to the business. Id. We first address the language of the conference committee report. Respondent argues that the word “generally” was intended only to permit deduction of interest on past-due business taxes, such as sales and excise taxes which the regulations specifically exclude from the definition of personal interest. See sec. 1.163-9T(b)(2)(iii)(A), Temporary Income Tax Regs., 52 Fed. Reg. 48409 (Dec. 22, 1987). On this basis, respondent concludes that section 1.163-9T(b)(2)(i)(A), Temporary Income Tax Regs., supra, is reasonable and that additional proof of reasonableness is provided by the statement in the Joint Committee Staff Explanation. See supra p. 43. This approach is also articulated by the Court of Appeals for the Eighth Circuit in Miller v. United States, 65 F.3d 687 (8th Cir. 1995), holding the temporary regulation valid. We think both respondent and the Court of Appeals for the Eighth Circuit overlook the use of the word “deficiencies” in the sentence in the conference committee report. That word has had a long-established and well-known meaning. It has been described as a “term of art”. Bregin v. Commissioner, 74 T.C. 1097, 1101-1102 (1980) (describing “deficiency” as a term of art represented by statutory definition as “the amount by which the income, gift, or estate tax due under the law exceeds the amount of such tax shown on the return”); see also Estate of Mueller v. Commissioner, 101 T.C. 551, 568 (1993)" }, { "docid": "469894", "title": "", "text": "term without calling into question its authority to interpret that term. Id. at 863, 104 S.Ct. at 2792. If an agency’s own previous gloss on an ambiguous statute does not render the statute any the less a proper object of interpretation, neither does the pre vious gloss of a reviewing court do so. See also id. at 841-42, 104 S.Ct. at 2780-81. Having determined that the term, “properly allocable,” is subject to interpretation by the Commissioner, we now must decide whether Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A) represents a reasonable interpretation of the term. We have little trouble in doing so. As the Eighth Circuit noted, the legislative history that attended the enactment of I.R.C. § 163(h) is entirely consonant with the Commissioner’s conclusion that personal income tax obligations are always essentially personal in nature. See Miller, 65 F.3d at 690-91. In explaining the import of I.R.C. § 163(h), the report of the Conference Committee says that “[pjersonal interest also generally includes interest on tax deficiencies.” H.R. Conf. Rep. No. 841, 99th Cong., 2d See. 11-154. There is no suggestion in the report that Congress intended to preserve an exception for interest on income tax deficiencies that arise in the ordinary course of a business. The General Explanation of the Tax Reform Act of 1986 likewise supports the Commissioner’s interpretation of the Code. See Staff of the Joint Committee on Taxation, 100th Cong., 1st Sess., General Explanation of the Tax Reform Act of 1986 266 (Comm. Print 1987). While such post-enactment explanations cannot properly be described as “legislative history,” they are at least instructive as to the reasonableness of an agency’s interpretation of a facially ambiguous statute. See Miller, 65 F.3d at 690; Estate of Wallace v. Commissioner, 965 F.2d 1038, 1050-51 n. 15 (11th Cir.1992); McDonald v. Commissioner, 764 F.2d 322, 336 n. 25 (5th Cir.1985). In this case, the general explanation clearly supports the Commissioner’s interpretation, providing that “[pjersonal interest also includes interest on underpayments of individual Federal, State or local income taxes notwithstanding that all or a portion of the income may have arisen in a trade or" }, { "docid": "20769893", "title": "", "text": "Deficiencies: Uncertainty Exists Under the New Temporary Regulations”, 13 Rev. of Taxn. of Individuals 22 (1989). With the foregoing as background, we address the critical issue before us, namely, the effect of section 163(h)(2)(A) and section 1.163-8T, Temporary Income Tax Regs., 52 Fed. Reg. 24999 (July 2, 1987), and section 1.163-9T(b)(2)(i)(A), Tern- porary Income Tax Regs., supra, which specifically denies the deduction herein claimed. This case is one of first impression in this Court on this issue. See supra p. 33. We note, however, that the Court of Appeals for the Eighth Circuit in Miller v. United States, 65 F.3d 687 (1995), although agreeing without conclusion as to the pre-section 163(h) state of the law, has accepted respondent’s position and held the temporary regulation a reasonable interpretation of the statute and therefore valid. Initially, we note that temporary regulations are accorded the same weight as final regulations. Peterson Marital Trust v. Commissioner, 102 T.C. 790, 797 (1994). The regulations involved herein were promulgated pursuant to the general authority granted to the Secretary of the Treasury by section 7805(a) and not pursuant to specific legislative authority, T.D. 8168, 1988-1 C.B. 80, 83; they are therefore interpretative. An interpretative regulation is owed “less deference than a regulation issued under a specific grant of authority to define a statutory term or prescribe a method of executing a statutory provision.’” United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982) (quoting Rowan Cos. v. United States, 452 U.S. 247, 253 (1981)). An interpretative regulation will be upheld if it is found to “‘implement the congressional mandate in some reasonable manner’ ”. United States v. Vogel Fertilizer Co., supra at 24 (quoting United States v. Correll, 389 U.S. 299, 307 (1967)). Recently, the Supreme Court summarized the standard of review as follows: Under the formulation now familiar, when we confront an expert administrator’s statutory exposition, we inquire first whether “the intent of Con gress is clear” as to “the precise question at issue.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). If so, “that is the end of" }, { "docid": "469893", "title": "", "text": "before we will find that the administering agency has no authority to employ a different construction. The Redlarks have offered no such compelling arguments. Contrary to the Redlarks’ assertions, the fact that courts consistently allowed the type of deduction they are now seeking before the enactment of the Tax Reform Act of 1986 and its implementing regulations does not lend support to the argument that such a deduction must continue to be allowable under the new statute. Congress regularly affords administrative agencies leeway in which to change or modify their regulations in response to changing economic conditions and policy concerns. That is the entire point of a delegation of limited policy-making authority under an ambiguously worded statute. “An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863-64, 104 S.Ct. at 2792. Thus, an agency may “from time to time ehange[ ] its interpretation” of a statutory term without calling into question its authority to interpret that term. Id. at 863, 104 S.Ct. at 2792. If an agency’s own previous gloss on an ambiguous statute does not render the statute any the less a proper object of interpretation, neither does the pre vious gloss of a reviewing court do so. See also id. at 841-42, 104 S.Ct. at 2780-81. Having determined that the term, “properly allocable,” is subject to interpretation by the Commissioner, we now must decide whether Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A) represents a reasonable interpretation of the term. We have little trouble in doing so. As the Eighth Circuit noted, the legislative history that attended the enactment of I.R.C. § 163(h) is entirely consonant with the Commissioner’s conclusion that personal income tax obligations are always essentially personal in nature. See Miller, 65 F.3d at 690-91. In explaining the import of I.R.C. § 163(h), the report of the Conference Committee says that “[pjersonal interest also generally includes interest on tax deficiencies.” H.R. Conf. Rep. No. 841, 99th Cong., 2d See. 11-154." }, { "docid": "469884", "title": "", "text": "FLETCHER, Circuit Judge: The Commissioner of Internal Revenue appeals the decision of the tax court striking down Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A). That regulation disallows the deduction of interest paid on overdue individual income taxes, even when the source of the personal income that gives rise to the tax deficiency is a business or trade. Plaintiffs James and Cheryl Redlark claim that the regulation is in conflict with the relevant provision of the tax code, 26 U.S.C. (“I.R.C.”) § 163(h)(2)(A). A sharply divided tax court accepted the Redlarks’ position. See Redlark v. C.I.R., 106 T.C. No. 2, 1996 WL 10243 (1996). The only other circuit to address this question, however, has concluded that the regulation constitutes a permissible construction of a facially ambiguous statutory provision. See Miller v. U.S., 65 F.3d 687 (8th Cir.1995). We agree with the Eighth Circuit and reverse the decision of the tax court. I. The facts in this case are not in dispute, so we summarize them only briefly. Between 1979 and 1985, James and Cheryl Redlark operated an unincorporated business, Carrier Communications, that installed telephone equipment. The Redlarks kept the books and records of the business using the accrual method of accounting. They reported the income and expenses on their joint federal income tax returns, however, using the cash-basis method of accounting. When the Internal Revenue Service examined the Red-larks’ returns for these years, it determined that extensive adjustments were necessary. After the parties settled several tax shelter issues and corrected various accounting errors, the adjustments resulted in additional assessments for tax, penalties, and interest for the years 1982-84. The interest on these assessments amounted to $361,345 for 1982, $42,279 for 1984, and $42,126 for 1985. The Redlarks made the interest payments in installments from 1987 to 1990. They then claimed deductions on their personal income tax returns for portions of the interest payments: On their 1989 return, they claimed a business expense of $195,463 based on the interest paid in that year on their 1982, 1984 and 1985 tax deficiencies; and in 1990, they claimed $23,323 as a business expense for the interest" }, { "docid": "6608001", "title": "", "text": "in order for Tedor-is to prevail). No caselaw has dealt with the precise question whether either of those exceptions applies to such a DISC-generated interest charge. Does the Regulation Control? Because Redlark, 141 F.3d at 939-40 held that the phrase “properly allocable” in Section 163(h)(2)(A) was ambiguous and that the Regulation was a reasonable interpretation of the Code, the Regulation’s validity is beyond question here. Indeed, four other circuits have held that the Regulation is valid and that income tax deficiencies cannot be considered “indebtedness properly allocable to a trade or business” even when the income underlying the deficiency originates from the taxpayer’s own business (in order of decision, Miller v. United States, 65 F.3d 687 (8th Cir.1995); Allen v. United States, 173 F.3d 533 (4th Cir.1999); McDonnell v. United States, 180 F.3d 721 (6th Cir.1999) and Kikalos v. Commissioner, 190 F.3d 791 (7th Cir.1999)). While Redlark involved the deduction of interest payments made on tax deficiencies by a couple running an unincorporated business, the same ambiguous phrase is implicated in this case, where the question is whether interest on deferred DISC-related tax liability is “properly allocable” to a trade or business. At the outset the Government argues that the Regulation (quoted here with emphasis added) is not only valid but is dispositive of this case: [Personal interest includes interest— (A) Paid on underpayments of individual Federal, State or local income taxes and on indebtedness used to pay such taxes (within the meaning of § 1.168-8T), regardless of the source of the income generating the tax liability. While the Government says that deferred DISC-related tax liability is an “underpayment,” so that the deduction of interest on that amount is prohibited by the Regulation, Tedoris counter that a “deferment” is something distinct from an “underpayment,” hence rendering the Regulation inapplicable. Section 995(f)(6) says that the DISC interest charge is “treated, for purposes of this title, as interest payable under section 6601.... ” But Section 6601, entitled “Interest on Underpayment, Nonpayment, or Extensions of Time for Payment of Tax,” does not enlighten us beyond its heading. Nevertheless both sides seek comfort from" }, { "docid": "469897", "title": "", "text": "485-86, 99 S.Ct. 1304, 1311-12, 59 L.Ed.2d 519 (1979). Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A) represents a reasonable interpretation of a facially ambiguous statute. It is neither arbitrary, capricious, nor in conflict with any other statutory provision or the purposes of the Code as a whole. That being so, our inquiry is at an end. We REVERSE the decision of the tax court and REMAND for further proceedings consistent with this opinion. REVERSED and REMANDED. . We note that the \"properly allocable\" language was not a part of the Tax Reform Act as originally drafted, but entered the Code by amendment in 1988. Originally, I.R.C. § 163(h)(2) provided: For purposes of this subsection, the term \"personal interest” means any interest allowable as a deduction under this chapter other than'—• (A) interest paid or accrued on indebtedness incurred or continued in connection with the conduct of a trade or business (other than the trade or business of performing services as an employee). I.R.C. § 163(h)(2) (1986). Congress amended this definition in the Technical and Miscellaneous Revenue Act of 1988, Pub.L. No. 100-647, 102 Stat. 3342, 3390. That Act replaced the words, \"incurred or continued in connection with the conduct of a trade or business,” with the \"properly allocable\" language that is now before us. Clearly, the original language of the statute would have strengthened, at least to some extent, the Redlark's position that Congress intended for interest incurred on business-related expenses, perhaps including ordinary tax deficiencies on personal income derived from a trade or business, to be deductible. As is so frequently the case, one could use this amendment of the statutory language to craft arguments militating either in favor of a finding of ambiguity, or against it. One could argue, for example, that Congress intended to change the import of § 163 by replacing the original, specific language with the more general \"properly allocable;” or, alternatively, that a change effected in a \"Technical and Miscellaneous Revenue Act” is merely ministerial, such that \"properly allocable” should be read in harmony with the more specific language that preceded it. While we find the" }, { "docid": "11278199", "title": "", "text": "v. United States, 434 U.S. 528, 534-36, 98 S.Ct. 841, 845-46, 55 L.Ed.2d 1 (1978) (upholding regulation that had a “reasonable basis” in the statutory history, even though the taxpayer’s challenge to its policy had “logical force”). Where “the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute. ... Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A, Inc., supra, 467 U.S. at 843, 104 S.Ct. at 2782 (footnotes omitted). III. Turning to the language of the Code itself, I.R.C. § 163(h)(2)(A) generally disallows any deduction for personal interest paid or accrued by a noncorporate taxpayer. Personal interest is defined as any interest with specified exceptions including interest on debt allocable to a trade or business. The provision, however, does not define what constitutes business interest. Therefore, there is an implicit legislative delegation of authority to the Commissioner to clarify whether income tax deficiency interest is “properly allocable to a trade or business.” See Chevron U.S.A., Inc., supra, 467 U.S. at 844, 104 S.Ct. at 2782. On review, we consider whether the agency’s determination is based on a permissible construction of the statute, id. at 843, 104 S.Ct. at 2782, and whether that construction “harmonizes with the statute’s ‘origin and purpose.’ ” United States v. Vogel Fertilizer Co., 455 U.S. 16, 26, 102 S.Ct. 821, 828, 70 L.Ed.2d 792 (1982) (citation omitted). There is little legislative history available regarding the treatment of income tax deficiency interest under section 163(h)(2)(A), but what is available supports the conclusion that Temp. Treas. Reg. § 1.163-9T is a reasonable interpretation of legislative intent. The Conference Report on the Tax Reform Act of 1986 states that “[p]ersonal interest also generally includes interest on tax deficiencies.” H.R.Conf.Rep. No. 841, 99th Cong.2d Sess. 11-154 (1986). Further, the General Explanation of the Tax Reform Act of 1986 (General Explanation), authored by the staff of the Joint Committee" }, { "docid": "11278203", "title": "", "text": "and 162 and, because those provisions of the statute were unaltered with the Tax Reform Act of 1986, Congress did not intend to alter case law that had previously allowed the deductibility of such interest. Even if we agreed that the taxpayer’s argument had some logical force, our decision would remain unaltered. Our role here is not to determine whether other reasonable interpretations of the statute exist, but in stead to consider whether the regulation at issue, that noncorporate income tax deficiency interest derived from whatever source is personal interest, is a permissible construction of the statute. Because Temp. Treas.Reg. § 1.163 — 9T(b)(2)(i)(A) is neither inconsistent with the language of the statute nor at odds with the legislative history and directly tracks the statement of the staff committee in the General Explanation, we conclude the regulation represents a permissible construction of the statute. The regulation adopts the reasonable rule that an individual’s income tax liability, regardless of the nature of the income giving rise to the liability, is a personal obligation and that, consequently, interest owed by such individual because of a failure to pay his tax obligation on time necessarily is also a personal obligation. Thus, contrary to the conclusion of the district court, the provision in Temp.Treas.Reg. § 1.163 — 9T(b)(2)(i)(A) that the interest paid on underpayments of income taxes is per se nondeductible personal interest is valid and, as such, dispositive of taxpayers’ claimed interest deduction in this case. As indicated earlier, the district court declared the regulation is invalid, but nevertheless held that the interest at issue was nondeductible personal interest. Because the district court’s ultimate conclusion corresponds with our foregoing analysis, we affirm the judgment of the district court." }, { "docid": "469886", "title": "", "text": "paid on their 1985 deficiency. These deductions represented the interest payments on the portions of the deficiencies that the Redlarks determined to have resulted from accounting errors and that were thus (they asserted) allocable to Carrier Communications. During an audit of the Redlarks’ 1989 and 1990 returns, however, the Commissioner determined that none of the interest on tax deficiencies was properly deductible. The controlling regulation, Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A), specifies that interest on income tax deficiencies is not attributable to a taxpayer’s conduct of trade or business, regardless of the source of the income, but rather is “personal interest” within the meaning of I.R.C. § 163(h). The issue before us is whether § 1.163-9T(b)(2)(i)(A) is a permissible interpretation of I.R.C. § 163(h). On its face, I.R.C. § 163(h) does not address the deductibility of interest payments on business-related personal income tax deficiencies. The statute simply disallows deductions for all “personal interest,” unless the interest in question is “paid or accrued on indebtedness properly allocable to a trade or business (other than the trade or business of performing services as an employee).” I.R.C. § 163(h)(2)(A) (emphasis added). In promulgating Temporary Treasury Regulation § 1.163-9T(b)(2)(i)(A), the Commissioner took the position that interest on personal income tax deficiencies always constitutes a personal obligation and so is never “properly allocable to a trade or business.” The parties agree that the disputed interest amounts are not deductible under the regulation. The parties disagree vigorously as to whether the regulation constitutes a valid interpretation of the Internal Revenue Code. II. This dispute centers on the meaning of the words, “properly allocable,” in I.R.C. § 163(h)(2)(A). The Redlarks argue that those words refer narrowly and unambiguously to questions of accounting practice. Prior to the addition of § 163(h)(2)(A) to the tax code in the Tax Reform Act of 1986, they explain, there was a consistent body of ease law holding that interest on business-related personal income tax deficiencies was deductible, provided that the deficiencies constituted an ordinary and necessary expense in the conduct of the business. See I.R.C. § 162(a) (“There shall be allowed as a" }, { "docid": "17356025", "title": "", "text": "that regard, it is worth noting that in years since the Commissioner promulgated the temporary regulation, Congress has not seen fit to overrule the Commissioner. Allen, 173 F.3d at 538; Miller, 65 F.3d at 690. III. Temporary Treasury Regulation 1.163— 9T(b)(2)(i)(A) precludes the Kikalos from deducting, as a business expense, the interest accrued on income tax deficiencies assessed for prior tax years. We conclude that the temporary regulation represents a reasonable interpretation of 26 U.S.C. § 163(h)(2)(A), which does not unambiguously resolve the subject. In this respect, we Reverse the judgment of the tax court. We thank the government for its excellent briefs. . The Kikalos had calculated their reported income based on the cash receipts and dis bursements that Nick entered in the proprietorship’s ledgers each business day. However, Nick neglected to retain any records — in particular, cash register tapes or sales receipts — that would have confirmed the amount of their gross income. See 26 U.S.C. § 6001; 26 C.F.R. § 1.446-1 (a)(4). In the absence of such documentation, the Commissioner reconstructed the Kikalos’ income based on an analysis of their bank deposits. See 75 T.C.M. (CCH) at 1932, 1998 WL 90729; see also Mendelson v. Commissioner, 305 F.2d 519, 522 (7th Cir.1962), citing Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933) (Cardozo, X). . The phrase \"properly allocable\" was added to the statute by the Technical and Miscellaneous Revenue Act of 1988, Pub.L. No. 100- ' 647, 102 Stat. 3342, 3390. As enacted in 1986, the statute referred to \"interest paid or accrued on indebtedness incurred or continued in connection with the conduct of a trade or business.... ” 26 U.S.C. § 163(h)(2)(1986) (emphasis ours). Whether the temporary regulation under scrutiny comports with the 1986 language is a matter we need not consider. The parties’ arguments focus on the current statutory language, as does our analysis. See Redlark, 141 F.3d at 940 n. 1. . The underpayment of tax does qualify as \"indebtedness\" for purposes of the statute. See Temp. Treas. Reg. § 1.163-8T(c)(3)(ii), 26 C.F.R. § 1.163-8T(c)(3)(ii); Redlark," }, { "docid": "17356017", "title": "", "text": "not our role to determine the most appropriate interpretation of the statute, but simply to assess whether the regulation reflects a reasonable construction. Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11 (collecting cases). For “Congress has delegated to the Commissioner, not to the courts, the task of prescribing ‘all needful rules and regulations for the enforcement’ of the Internal Revenue Code.” United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449-50, 19 L.Ed.2d 537 (1967), quoting 26 U.S.C. § 7805(a). The first thing we must do, then, is consider whether section 163(h) speaks clearly to the deductibility of interest on income tax deficiencies emanating from the taxpayer’s sole proprietorship. It does not. The statute preserves the deductibility of interest on “indebtedness properly allocable to a trade or business” (emphasis ours), but supplies no test for determining which debts are “properly allocable” to a business and which are not. See Redlark, 106 T.C. at 67, 1996 WL 10243 (Halpern, J., dissenting). For that reason, each court of appeals examining the statute has deemed it to be facially ambiguous. See McDonnell, 180 F.3d 721, 722-23; Allen, 173 F.3d at 536; Redlark, 141 F.3d at 940; Miller, 65 F.3d at 690. Even the tax court majority, after halfheartedly suggesting that the statute might have a plain meaning, conceded ultimately that there was sufficient ambiguity in the language to afford the Commissioner room for reasonable regulatory interpretation. See Redlark, 106 T.C. at 39, 1996 WL 10243. The fact that the members of that court could not agree on a single reading of the statute itself serves as evidence of the statute’s ambiguity. Allen, 173 F.3d at 536. Given the statutory ambiguity, there is, as the Eighth Circuit has observed, “an implicit delegation of authority to the Commissioner to clarify whether income tax deficiency interest is ‘properly alloca-ble to a trade or business.’” Miller, 65 F.3d at 690; see also Redlark, 141 F.3d at 940. That delegation brings us to the second step of the Chevron analysis, where we consider whether the Commissioner has filled the statutory gaps" } ]

[ { "docid": "15020390", "title": "", "text": "of summary judgment de novo and apply the same standards used by the district court. Therefore, summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Further, we note that as the bankruptcy and district court rulings under consideration on this appeal are exclusively conclusions of law, they are subject to de novo review. 2. Criswell’s fraudulent transfer and “an INTEREST OF THE DEBTOR IN PROPERTY” UNDER § 547(b) In the logic of the Bankruptcy Code’s preference-avoiding statutes, the first issue to be decided in this case is the one challenged by Cullen on cross appeal—that is, whether Cullen’s filing of its abstract of judgment constituted a preferential transfer of “an interest of the debtor in property” under 11 U.S.C. § 547(b), given that Criswell had transferred legal title to the relevant properties to the Children’s Trust before Cullen filed its abstract of judgment. In general, § 547(b) permits a trustee to avoid various preferential transfers of the debtor’s property made prior to the commencement of a bankruptcy case. Congress enacted this preference-avoiding section with two intertwined purposes in mind: (1) discouraging creditors from racing to the courthouse to dismember the debtor during his slide into bankruptcy, and (2) facilitating the prime bankruptcy policy of equality of distribution among creditors of the debtor. As one of the leading treatises has observed, the underlying theory for voiding preferences must be distinguished from the rationale for voiding fraudulent transfers: “A preference is an infraction of the rule of equal distribution among all creditors; a fraudulent transfer goes further, and by it the debtor seeks through deceitful means to secure a personal advantage out of what in law should belong to creditors and not to the debtor.” Accordingly, neither the intent nor motive of the parties is relevant in consideration of an alleged preference under § 547(b). Turning now to the application of § 547(b) to the specific facts of this case, we first observe that the definition of “transfer” under the Bankruptcy Code" } ]

[ { "docid": "17622551", "title": "", "text": "§ 547(e)(1)(A). Additionally, § 547(e)(2)(B) provides that: a transfer is made ... at the time such transfer is perfected, if such transfer is perfected after [30 days after such transfer takes effect].... 11 U.S.C. § 547(e)(2)(B). Ute Mesa’s rebanee on § 547(e)(1)(A) in this context conflates perfection of a transfer with the existence of a transfer. As is clear from its text, § 547(e)(1)(A) does not attempt to define a “transfer of real property.” Rather, § 547(e)(1)(A) determines whether a transfer of an interest in property — as defined by § 101(54) and state law — “is perfected” for the purposes of § 547. Likewise, § 547(e)(2)(B) only determines the timing of a transfer for preference purposes; it does not purport to establish whether a transfer has in fact taken effect. The bankruptcy and district courts properly avoided analyzing the effects of the lis pendens under § 547(e)(1)(A). Ute Mesa relies on a Ninth Circuit case, Hurst Concrete Prods., Inc. v. Lane (In re Lane), 980 F.2d 601 (9th Cir.1992), to argue that “perfection” of an interest equates to “transfer” of an interest under § 547. To be sure, the Ninth Circuit painted in broad strokes when it held “that the filing of a valid lis pendens is a transfer within the meaning of the Bankruptcy Code.” Id. at 606. However, the creditor in In re Lane had already recorded a judgment against the debtors before the debtors filed their bankruptcy petition. Id. at 603. The court addressed whether a transfer relates back in time to a bs pen-dens, not whether a bs pendens itself constitutes a transfer. Here, it is uncontro-verted that the Bank did not receive a favorable judgment in the state court action before Ute Mesa filed its Chapter 11 petition, and In re Lane is inapposite. Other decisions support the conclusion that “perfection” and “transfer” are distinct inquiries for preferential transfer purposes. Perfection is a “preliminary determination” that must be made to “estab-bsh[] the date on which a transfer was made,” Grover v. Gulino (In re Gulino), 779 F.2d 546, 549 (9th Cir.1985); it does not" }, { "docid": "17622541", "title": "", "text": "on the property. On May 19, 2010, the Bank filed suit in Colorado state court seeking reformation of the deed of trust and a declaration that it had a first priority lien on the property. Two days later, the Bank filed a notice of lis pendens in the Pitkin County real property records. On August 18, 2010, Ute Mesa petitioned for Chapter 11 bankruptcy relief. Ute Mesa continues as debtor in possession of the property. In April 2011, Ute Mesa filed an adversary proceeding against the Bank seeking to avoid the lis pendens as a preferential transfer. The bankruptcy court granted the Bank’s motion to dismiss, and the federal district court affirmed. Relying upon the bankruptcy court’s analysis, the district court recognized that a “lis pendens does not create a lien, retain title as a security interest, or foreclose on a debtor’s equity of redemption.” Ute Mesa Lot 1, LLC v. First Citizens Bank (In re Ute Mesa), No. 11-cv-01786, 2012 WL 1015757, at *3 (D.Colo. Mar. 28, 2012) (internal quotation omitted). It agreed with the bankruptcy court that, “since a lis pendens only serves the limited purpose of notice, the filing of a lis pendens is not a transfer disposing of or parting with an interest in the property within the meaning of § 101(54)(D)(ii).” Id. at *4 (internal quotation omitted). Thus, no preferential transfer occurred, and Ute Mesa could not avoid the lis pendens. Discussion We review the bankruptcy court’s decision de novo, as it involves only legal questions. Valley Bank & Trust Co. v. Spectrum Scan, LLC (In re Tracy Broad. Corp.), 696 F.3d 1051, 1053 (10th Cir.2012). Ute Mesa argues that the bankruptcy and district courts erred by beginning and ending their analyses with §§ 547(b) and 101(54) of the Bankruptcy Code and Colorado law. Relying on § 547(e)(1)(A), Ute Mesa asserts that a “transfer of an interest in property” occurs when a bona fide purchaser cannot acquire an interest superior to that of a creditor. According to Ute Mesa, because the lis pendens prevents a bona fide purchaser from acquiring an interest in the property" }, { "docid": "22948541", "title": "", "text": "lis pendens to “Foster City Associates” is to this joint venture through which they make their claim. Although the trial court made certain findings with respect to the Fultons’ position, those findings appear to ignore contradictory evidence submitted by the Fultons and do not clearly address the factual theory offered by them. A genuine issue of fact clearly exists as to these issues. The pleadings in the Superior Court action are not contained in the record before us. Apparently because of the trial court’s manifest opinion that the lis pen-dens was not effective as to the trustee, the parties have not placed into evidence an adequate foundation to determine if each of the appellants is protected by the lis pen-dens. Thus, we hold that the record in its present state cannot sustain a summary judgment against any of the appellants. Both the scope of the notice provided by the lis pendens and the relationship of the appellants’ claims to that notice remain unresolved. See Fed.R.Civ.P. 56(c) made applicable by Bankruptcy Rule 756. We do not consider appellee’s argument, which was not argued to the trial court, that Bankruptcy Code § 547 negates the effect of the lis pendens. Appellants contend that even had the Us pendens not been filed, the effect of § 541(d) and various alleged limitations to § 544(a) would defeat the trustee’s claim. Although the interaction of § 544(a)(3) and § 541(d) has been discussed elsewhere, In re Elin, supra, 20 B.R. at 1014-18, in light of our disposition, we need not address these issues. REVERSED and REMANDED for further consideration consistent with this determination. . Section 544(a) provides as follows: (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— (3) a bona fide purchaser of real property from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status" }, { "docid": "17622550", "title": "", "text": "to convey the property without first informing the prospective purchaser of the existence of the Bank’s claim. Accordingly, under Colorado law, the effect of a lis pendens rendering title unmarketable is, on its own, not a transfer of an interest of the debtor in property. II. Perfection vs. Transfer of an Interest in Property Ute Mesa challenges reliance on Colorado law and argues that § 547(e)(1)(A) also plays a determinative role in whether a “transfer of an interest of the debtor in property” has occurred under § 547(b). Aplt. Br. 9. It further argues that § 547(e)(2)(B) sets the date of the transfer as the date of the filing of the lis pendens, because the lis pendens was recorded more than thirty days after the Bank made its loan. Aplt. Br. 8. Section 547(e)(1)(A) of the Bankruptcy Code provides that: a transfer of real property ... is perfected when a bona fide purchaser of such property from the debtor ... cannot acquire an interest that is superior to the interest of the transferee.... 11 U.S.C. § 547(e)(1)(A). Additionally, § 547(e)(2)(B) provides that: a transfer is made ... at the time such transfer is perfected, if such transfer is perfected after [30 days after such transfer takes effect].... 11 U.S.C. § 547(e)(2)(B). Ute Mesa’s rebanee on § 547(e)(1)(A) in this context conflates perfection of a transfer with the existence of a transfer. As is clear from its text, § 547(e)(1)(A) does not attempt to define a “transfer of real property.” Rather, § 547(e)(1)(A) determines whether a transfer of an interest in property — as defined by § 101(54) and state law — “is perfected” for the purposes of § 547. Likewise, § 547(e)(2)(B) only determines the timing of a transfer for preference purposes; it does not purport to establish whether a transfer has in fact taken effect. The bankruptcy and district courts properly avoided analyzing the effects of the lis pendens under § 547(e)(1)(A). Ute Mesa relies on a Ninth Circuit case, Hurst Concrete Prods., Inc. v. Lane (In re Lane), 980 F.2d 601 (9th Cir.1992), to argue that “perfection” of" }, { "docid": "19775240", "title": "", "text": "matter of bankruptcy law, I find that such a recordation did constitute a transfer of an interest in the relevant property and, because that transfer occurred outside the 90 day preference look-back period prescribed by 11 U.S.C. § 547, it may not be avoided by the trustee. Bankruptcy Code section 547(e)(1) defines a transfer of real property for purposes of identifying an avoidable preference in the following manner: “a transfer of real property ... is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee.” 11 U.S.C. § 547(e)(1). Thus the sole matter of contention in this instance is whether Nemeroff s interest in the relevant properties, at the time of the recordation of his Notices of Lis Pendens, was superior to the interest of a hypothetical bona fide purchaser of the real property at any point after the recordation. As Judge Sharp has observed, “[Although bankruptcy law defines what property interests are part of the bankruptcy estate, state law determines whether the debtor has an equitable or legal interest in the property at the time of the bankruptcy filing.” Dickerson v. Central Florida Radiation Oncology Group, 225 B.R. 241, 244 (M.D.Fla.1998). Accordingly, I must look to Florida law for an understanding of just how the relevant lis pen-dens statute operates. More than two decades ago, Judge Weaver of this Court held that “the filing and recording of a lis pendens in the instant case did not create a lien right in favor of the defendant but such lien right only arose at the time of the entry of the state court order in the dissolution of marriage proceedings ...” In re Sierra, 79 B.R. 89, 91 (Bankr.S.D.Fla.1987). I conclude, notwithstanding this precedent, that although Judge Weaver was right in concluding that the mere filing of a notice of lis pendens does not create a lien, the express provisions of 11 U.S.C. § 547(e)(1) do not require that a lien be created in order for" }, { "docid": "17622553", "title": "", "text": "control whether a transfer was made. In Saghi v. Walsh (In re Gurs), the Bankruptcy Appellate Panel of the Ninth Circuit held that: The filing of [a] lis pendens cannot be characterized as a transfer of the debt- or’s property nor can it be characterized as a transfer on account of an antecedent debt. To argue otherwise confuses avoidance of a transfer of an interest in the debtor’s property with avoidance of an act that perfects, as against potential bona fide purchasers, a claim of ownership. Section 547 permits avoidance of the former not the latter. 34 B.R. 755, 757 (9th Cir. BAP 1988). The Ninth Circuit did not disturb this limited holding — that perfection is not itself a transfer — in In re Lane. Simply put, § 547(b) has no effect where there has been “perfection, but no transfer.” Freedom Grp., Inc. v. Lapham-Hickey Steel Corp. (In re Freedom Grp.), 50 F.3d 408, 412 (7th Cir.1995). Ute Mesa raises an additional argument that, even though the Bank had not recorded a judgment before Ute Mesa filed its bankruptcy petition, any eventual judgment is itself a present transfer because it would necessarily “relate back” to the filing of the lis pendens. Aplt. Br. 10-11. However, Ute Mesa did not raise this argument in its complaint, response to the Bank’s motion to dismiss, or opening brief in the district court. We will not permit Ute Mesa to raise it for the first time here. Katz v. Gerardi, 655 F.3d 1212, 1217 n. 3 (10th Cir.2011). AFFIRMED. . In January 2011, Defendant-Appellee First-Citizens Bank & Trust Company acquired United Western Bank's interest in the construction loan and state-court claims. For convenience, we use the term \"Bank” to refer to United Western and First-Citizens collectively. . In a Chapter 11 case, a debtor in possession has all the rights and powers of a bankruptcy trustee, including the power of avoidance under § 547. 11 U.S.C. § 1107(a). . Likewise, § 547(e)(2)(B) is inapposite, as the \"transfer” that the lis pendens perfects is the attachment of the judgment lien arising from the underlying" }, { "docid": "3706537", "title": "", "text": "filed bankruptcy. Consequently, it did not become property of the estate, a fortiori the home’s proceeds are likewise not property of the estate. Mr. Clark has argued that his § 544(a) strongarm powers permit him to avoid the constructive trust. But he does not qualify under that statute’s terms as either a judicial hen creditor or a bona fide purchaser on the date of bankruptcy. Under the Kansas lis pendens statute, third persons, such as the trustee, were charged with notice of the pendency of Wetherill’s state court constructive trust action. Furthermore, recording the prejudgment attachment order with the Johnson County, Kansas, Register of Deeds provided constructive notice. These filings prevent the trustee from claiming on the date of bankruptcy the status of the hypothetical statu tory entities that could otherwise establish priority under § 544(a). Mr. Clark has also argued that § 547(b) operates to avoid the constructive trust and the attachment lien as preferential transfers. These arguments lack merit because neither the trust nor the attachment were a “transfer of an interest of the debtor in property.” Section 547(b) requires a transfer by the debtor before it can operate. The constructive trust was not a transfer by the debtor. The debtor did not own any equitable interest in the home that he could transfer. Although the prejudgment attachment is normally viewed as creating a hen, in this instance it was merely an enforcement tool to protect Wetherill’s already existing equitable ownership in the home. It did not transfer any equitable interest from the debtor because Wetherill already held the equitable ownership of the home. The trustee’s motion for summary judgment is denied. The trustee is ordered to convey the bare legal title to Wetherill forthwith. IT IS SO ORDERED. . Plaintiff Carl R. Clark, Trustee, appears by his counsel, Lentz & Clark, P.A., Overland Park, Kansas. Defendants Leo G. Wetherill and L.G.W. Energy Resources, Inc., appear by their attorney, William S. Robbins, Jr., of Kurlbaum Stoll Seaman Reefer Suter & Mus-toe, P.C., Kansas City, Missouri. Debtor Gary D. Leitner appears by his attorney, Eric C. Rajala, of Overland" }, { "docid": "19775241", "title": "", "text": "property interests are part of the bankruptcy estate, state law determines whether the debtor has an equitable or legal interest in the property at the time of the bankruptcy filing.” Dickerson v. Central Florida Radiation Oncology Group, 225 B.R. 241, 244 (M.D.Fla.1998). Accordingly, I must look to Florida law for an understanding of just how the relevant lis pen-dens statute operates. More than two decades ago, Judge Weaver of this Court held that “the filing and recording of a lis pendens in the instant case did not create a lien right in favor of the defendant but such lien right only arose at the time of the entry of the state court order in the dissolution of marriage proceedings ...” In re Sierra, 79 B.R. 89, 91 (Bankr.S.D.Fla.1987). I conclude, notwithstanding this precedent, that although Judge Weaver was right in concluding that the mere filing of a notice of lis pendens does not create a lien, the express provisions of 11 U.S.C. § 547(e)(1) do not require that a lien be created in order for an interest in the property to be transferred. I find that although Nemeroff did not obtain a lien on the disputed property by virtue of his recording of notices of lis pendens outside the preference period, but that by putting the world on notice of his equitable claim to the properties, he acquired an interest superior to that of a hypothetical future bona fide purchaser. In other words, the trustee as hypothetical bona fide purchaser cannot avoid Nemeroffs interest in the property as to which the notices of lis pendens were filed. Of course, had Nemeroff failed in his state court litigation, the notices of lis pendens would collapse under their own weight and the trustee would prevail. That is not what happened here. The Florida lis pendens statute provides, “[T]he filing for record of such notice of lis pendens shall constitute a bar to the enforcement against the property described ... of all interests and liens ... unrecorded at the time of filing for record such notice of lis pendens.... ” Fla. State. §" }, { "docid": "16858371", "title": "", "text": "the clear and convincing standard is easier to apply then the preponderance standard because we know and feel the clear and convincing standard when we hear and see the proof the parties offer. With this brief and hardly complete generic opuscule on the various standards of proof, we turn our attention to Trustee and Bank’s arguments. A. Standard of Proof Under 11 U.S.C. § 547(b). To establish an avoidable preference, Trustee must prove the following elements, set forth in 11 U.S.C. § 547(b): (1) a transfer of property of the debtor; (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 filing of the petition; (6) that enables such creditor to receive more than it would receive in a Chapter 7 liquidation if the transfer had not been made. In proposing § 547 to Congress, the draftspersons of the Bankruptcy Reform Act of 1978 identified three goals for the preference section of the Act: “First, it lessens the possibility of a scramble among creditors for advantage; second, it promotes equality [of distribution among classes]; and third, it eliminates the incentive to make unwise loans in order to obtain a preferential payment or security.” H.Doc. No. 137, pt. I, 93d Cong., 1st Sess. 202 (1973) (Report of the Commission on the Bankruptcy Laws of the United States). Agreeing with the Commission's findings, the House Committee Report offered the following statement: The purpose of the preference section is two-fold. 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 debtor during his slide into bankruptcy. The protection thus afforded the debtor often enables him to work his way out of a difficult financial situation through cooperation with all of his creditors. Second, and the more important, the preference provision facilitates the prime bankruptcy policy of equality of distribution among creditors of the debt- or. Any creditor that received" }, { "docid": "14517744", "title": "", "text": "at 404-06. V. The final issue is whether Countrywide’s lien was properly avoided. Upon review, we hold that it was. Section 547 allows for the avoidance of preferences, which are transfers of property made by the debtor within the 90-day period preceding the filing of the bankruptcy petition. 11 U.S.C. § 547(b). In order to avoid a transfer as a preference under § 547, the transfer must be: (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)(l)-(5). “[F]or purposes of § 547 of the Bankruptcy Code, a transfer is deemed to have been made at the time the transfer is perfected, if perfection takes place more than 30 days after its creationf.]” Kendrick v. CIT Small Bus. Lending Corp. (In re Gruseck & Son, Inc.), 385 B.R. 799, 2008 WL 1756243, at *8 (6th Cir. BAP 2008) (unpublished table opinion) (citing 11 U.S.C. § 547(e)(2)(B)). In this case, the creation and perfection of Countrywide’s interest in the manufactured home occurred at the time of the state-court judgment, which was filed on June 7, 2007. Dickson filed for Chapter 13 bankruptcy on July 16, 2007, placing the state-court judgment well-within the 90-day preference period. While Countrywide asserts that it perfected its lien outside the preference period through the filing of the lis pendens, as described above, a lis pendens cannot perfect an interest" }, { "docid": "14439231", "title": "", "text": "fees and special damages. Debtor contested the allegations of breach and filed a counterclaim. Defendants’ action was indexed in the Allegheny County records as a lis 'pendens against the real estate but, before trial and for the purpose of avoiding the effects of Debtor’s contemplated bankruptcy filing, Defendants’ petition to receive payment and to cancel the lis pendens was granted by a consent order entered in Common Pleas Court dated February 26, 1987. The consent order conditioned the cancellation of the lis pendens on Debtor paying Defendants $15,500.00 of the proceeds of sale of 203 Springhouse Drive and effecting the return of Defendants’ $3,000.00 earnest money. No additional work was done to the property after Defendants vacated the premises in July, 1986, and it was sold to Donald R. and Rita J. Huckles (hereinafter the Huckles) on February 26, 1987, for $205,000.00. The addendum to the settlement statement utilized at the closing shows payment to Defendants of $15,-500.00 from the sale proceeds. The $3,000.00 earnest money also was returned to Defendants. At the hearing on September 30, 1988, the Trustee withdrew his claim for this amount on the ground that Defendants were entitled to it inasmuch as their mortgage commitment had been withdrawn and, therefore, they had not breached the agreement of sale. The question of whether the siding in fact was defective was never litigated, but, because of our disposition of this adversary, we need not resolve the issue. On March 3, 1987, Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code and, in September of 1987, the instant adversary proceeding alleging an avoidable preferential transfer under 11 U.S.C. § 547 was commenced by the Trustee. DISCUSSION The portions of § 547 of the Bankruptcy Code pertinent to this litigation provide: (b) 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" }, { "docid": "19775239", "title": "", "text": "validity, priority and extent of the Lis Pendens Notices under the Statute. 7. On or about March 30, 2008, the State Court entered a Summary Final Judgment in Favor of Nemeroff (the “Final Judgment”) against the Debtor in the State Court Lawsuit, but only for money damages in the principal amount of $962,247.23, plus interest, with respect to Count I of the Complaint for Breach of Contract. 8. On March 31, 2008, Nemeroff filed and recorded the Final Judgment with the Florida Secretary of State, and obtained a Judgment Lien Certificate. 9. In April, 2008, Nemeroff filed and recorded certified copies of the Final Judgment in each of the four Florida counties where the Properties are located (Bro-ward, Hillsborough, Marion and Duval counties), to record and obtain a judgment lien against each of the Properties. DISCUSSION Though various complexities surround this bankruptcy proceeding, the question at the core of this controversy may be rather simply stated: Did the recording of Notices of Lis Pendens constitute a transfer of the Debtor’s interest in property? As a matter of bankruptcy law, I find that such a recordation did constitute a transfer of an interest in the relevant property and, because that transfer occurred outside the 90 day preference look-back period prescribed by 11 U.S.C. § 547, it may not be avoided by the trustee. Bankruptcy Code section 547(e)(1) defines a transfer of real property for purposes of identifying an avoidable preference in the following manner: “a transfer of real property ... is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee.” 11 U.S.C. § 547(e)(1). Thus the sole matter of contention in this instance is whether Nemeroff s interest in the relevant properties, at the time of the recordation of his Notices of Lis Pendens, was superior to the interest of a hypothetical bona fide purchaser of the real property at any point after the recordation. As Judge Sharp has observed, “[Although bankruptcy law defines what" }, { "docid": "10180278", "title": "", "text": "value of creditor’s collateral. Therefore, the court finds that the amount of creditor’s claim was equivalent to the value of the collateral car and thus, creditor had a fully secured claim. A trustee may only avoid as a preference a pre-bankruptcy transfer which enables one creditor to recover more on his claim than other creditors of the same class. The greater percentage test under § 547(b)(5) serves the prime bankruptcy policy of equality of distribution among creditors of the debtor. The legislative history describes the purpose of the preference section as follows: The purpose of the preference section is two-fold. 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 debtor during his slide into bankruptcy . . . Second, and more important, the preference provisions facilitate the prime bankruptcy policy of equality of distribution among creditors of the debt- or. Any creditor that received a greater payment than others of his class is required to disgorge so that all may share equally . .. H.'R.Rep.No. 595, 95th Cong., 1st Sess., 177-78 (1977), U.S. Code Cong. & Admin. News 1978, p. 6138. Trustee, herein, has failed to carry his burden of proving that the effect of the payments was to enable creditor to obtain a greater percentage of its debt than it would receive under the distributive provisions of the Code. If any one of the elements of a preference under § 547(b), is wanting, a preference has not been established. 4 Collier on Bankruptcy 15th ed. § 547.44 at 547-160. Therefore, it is the conclusion of this Court that the transfers of property of the debtor to the creditor do not constitute voidable preferences under 11 U.S.C. § 547(b) as the trustee failed to prove that the effect of the transfers was to enable the creditor to obtain a greater percentage of its debt than it would receive under the distributive provisions of the Code. Trustee’s complaint to recover the amount of the August 9, 1980, August 22, 1980, and September" }, { "docid": "19735867", "title": "", "text": ".... [and][i]t was also a transfer on account of an antecedent debt.” Appellants’ Br. (Dkt. No. 6) at 17. However, the lis pendens must first be a transfer under New York law before a preferential analysis under the Code is appropriate. Under the Code, “the [Appellants] may avoid any transfer of an interest of the debtor in property.” 11 U.S.C. § 547(b) (2006) (emphasis added). Transfer is defined by the Code as: (A) the creation of a lien; (B) the retention of title as a security interest; (C) the foreclosure of a debtor’s equity of redemption; or (D) each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with— (i) property; or (ii) an interest in property. 11 U.S.C. § 101(54) (2006). Presumably, Appellants’ transfer theory rests on the “creation of a lien” language of Section 101. See 11 U.S.C. § 101(54)(A). As correctly noted by the Bankruptcy Court, states differ as to whether the filing of a Us pendens constitutes a transfer so as to qualify for preferential disqualification under Section 547. See MDO (Dkt. No. 1, Attach.49) at 8-9. New York, however, has consistently held that the filing of a lis pendens is merely a method of giving notice and does not create a lien. See, e.g., In re Am. Motor Club, Inc., 109 B.R. 595, 597 (Bankr.E.D.N.Y.1990) (“A notice of pendency ... does not create a lien or encumbrance on the property. It merely allows the plaintiff to prosecute its lawsuit to the execution of a judgment by putting the world on constructive notice that the property is the subject of a pending lawsuit.”); Simon v. Vanderveer, 155 N.Y. 377, 382, 49 N.E. 1043 (1898) (“ ‘The lis pendens is merely notice of some claim made in respect of the property ... [and] it does not of itself create an incumbrance apart from the equity on which the action is founded.’ ”); Finkelman v. Wood, 203 A.D.2d 236, 609 N.Y.S.2d 655, 656 (1994) (“[N]otice[s] of pendency .... have as their general object the preservation of existing property rights and do not" }, { "docid": "17622543", "title": "", "text": "superior to the Bank’s interest, the lis pendens qualifies as a transfer of an interest in the property. The Bank argues that the first and only step of the analysis is to determine whether an underlying property interest exists under state law. Because a lis pendens is merely a notice and does not constitute a lien, no transfer occurred. We agree. 1. Transfer of an Interest in Property Under § 547 of the Bankruptcy Code, a debtor in possession “may avoid any transfer of an interest of the debtor in property, to or for the benefit of a creditor,” if that transfer occurs within 90 days prior to the filing of the bankruptcy petition. 11 U.S.C. § 547(b)(1), (4). To be an avoidable “preferential transfer,” that transfer must meet certain statutory requirements (§ 547(b)(l)-(5)). Fundamentally, however, the “keystone of a preference is a transfer of the debtor’s property.” 5 Collier on Bankruptcy ¶ 547.05 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.). In pertinent part, the Bankruptcy Code defines a “transfer” as: each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with— (i) property; or (ii) an interest in property. 11 U.S.C. § 101(54)(D). The Bankruptcy Code, however, does not define “property” or “interest in property.” Given this lacuna, “ ‘property’ and ‘interests in property’ are creatures of state law.” Barnhill v. Johnson, 503 U.S. 393, 398, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). See also Bailey v. Big Sky Motors, Ltd. (In re Ogden), 314 F.3d 1190, 1197 (10th Cir.2002). Thus we must look to the property rights attendant to the filing of a lis pendens under Colorado law. A. Colorado Lis Pendens In Colorado, a party may record a notice of lis pendens against real property after initiating an action “wherein relief is claimed affecting the title to real property.” Colo.Rev.Stat. § 38-35-110(1). Recording a lis pendens provides “notice to any person thereafter acquiring, by, through, or under any party named in such notice, an interest in the real property ... that the interest so acquired may be affected" }, { "docid": "6899870", "title": "", "text": "suit in Pennsylvania state court (a consent order to that effect was entered on February 26, 1987) and to lift the lis pendens on the property. That same month Eaton sold the property to another buyer for $205,000. On March 3, 1987 Eaton filed for voluntary bankruptcy under chapter 7 of the Bankruptcy Code. When the trustee had been duly appointed, he filed a timely complaint against the Diethorns, to avoid the transfer as preferential under section 547 of the Bankruptcy Code and to recover the $15,500 for the bankrupt’s estate, thus commencing this adversary proceeding. The proceeding came to trial in the Bankruptcy Court on January 26, 1988 and on December 6, 1988 the court entered a memorandum opinion and order of judgment for the trustee. 93 B.R. 428. By order of July 12, 1989, on appeal, the U.S. District Court for the Western District of Pennsylvania affirmed. II. Section 547 of the Bankruptcy Code specifies when a payment by a bankrupt debtor may be avoided by the trustee. The transfer of the $15,500 from Eaton to the Diethorns does not meet the statutory specifications. To be sure, it was a transfer of Eaton’s property, to or for the benefit of the Diethorns, made while the debtor was presumptively insolvent and within 90 days before the filing of the petition in bankruptcy. See 11 U.S.C. § 547(b)(1), (3), (4) (Supp. V 1987). But it was not “for or on account of an antecedent debt owed by the debtor before such transfer was made.” 11 U.S.C. § 547(b)(2). Eaton paid the $15,500 to the Diethorns in exchange for their undertaking to terminate the lawsuit in Pennsylvania court and so to remove the lis pendens from the property index. What Eaton received was not the freedom from liability on an antecedent debt, but the freedom from the risk of litigation, together with the rise in the value of the property which resulted when the lis pen-dens was lifted. Thus, the exchange also falls within the statutory exception to the trustee’s avoidance powers as set out in subsection (c)(1), since it was" }, { "docid": "14439234", "title": "", "text": "U.S.C. § 101(11). The payment was made to Defendants on account of this debt within 90 days pre-petition. Defendants did not rebut the presumption that Debtor was insolvent at the time. 11 U.S.C. § 547(f), (g). Furthermore, it is almost certain that there will be no distribution to unsecured creditors and that Defendants have received more than they are entitled to under applicable Code provisions. The transfer is prima facie a preferential transfer avoidable by the Trustee. 11 U.S.C. § 547(b)(5)(C). Defendants contest the avoidability of the transfer on several grounds. First, Defendants argue that release of the lis pendens and payment to them by Debtor constituted a contemporaneous exchange for new value given to the Debtor and therefore is not avoidable by the Trustee. See 11 U.S.C. § 547(c)(1)(A). This contention is without merit. “New value” is defined as ... money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation.... 11 U.S.C. § 547(a)(2). By virtue of the consent order entered in the state action, Debtor’s payment was substituted for the allegedly unfulfilled construction obligation. Such a substitution cannot constitute new value when it is made in settlement of a disputed unsecured claim. Defendants do not expressly so state, but it necessarily is implied that they view the indexing of the lis pendens, rather than the payment, as the transfer. De fendants also contend that indexing the lis pendens created a lien and that because the lis pendens was indexed more than ninety days pre-petition, the “lien” is unavoidable. This argument also is without merit. Under Pennsylvania law the indexing of a lis pendens is not a transfer of rights or liabilities nor does it create a lien. It merely serves as notice to third parties that certain real property is involved in litigation and that any interest in that property which" }, { "docid": "17622542", "title": "", "text": "the bankruptcy court that, “since a lis pendens only serves the limited purpose of notice, the filing of a lis pendens is not a transfer disposing of or parting with an interest in the property within the meaning of § 101(54)(D)(ii).” Id. at *4 (internal quotation omitted). Thus, no preferential transfer occurred, and Ute Mesa could not avoid the lis pendens. Discussion We review the bankruptcy court’s decision de novo, as it involves only legal questions. Valley Bank & Trust Co. v. Spectrum Scan, LLC (In re Tracy Broad. Corp.), 696 F.3d 1051, 1053 (10th Cir.2012). Ute Mesa argues that the bankruptcy and district courts erred by beginning and ending their analyses with §§ 547(b) and 101(54) of the Bankruptcy Code and Colorado law. Relying on § 547(e)(1)(A), Ute Mesa asserts that a “transfer of an interest in property” occurs when a bona fide purchaser cannot acquire an interest superior to that of a creditor. According to Ute Mesa, because the lis pendens prevents a bona fide purchaser from acquiring an interest in the property superior to the Bank’s interest, the lis pendens qualifies as a transfer of an interest in the property. The Bank argues that the first and only step of the analysis is to determine whether an underlying property interest exists under state law. Because a lis pendens is merely a notice and does not constitute a lien, no transfer occurred. We agree. 1. Transfer of an Interest in Property Under § 547 of the Bankruptcy Code, a debtor in possession “may avoid any transfer of an interest of the debtor in property, to or for the benefit of a creditor,” if that transfer occurs within 90 days prior to the filing of the bankruptcy petition. 11 U.S.C. § 547(b)(1), (4). To be an avoidable “preferential transfer,” that transfer must meet certain statutory requirements (§ 547(b)(l)-(5)). Fundamentally, however, the “keystone of a preference is a transfer of the debtor’s property.” 5 Collier on Bankruptcy ¶ 547.05 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.). In pertinent part, the Bankruptcy Code defines a “transfer” as: each" }, { "docid": "17622540", "title": "", "text": "KELLY, Circuit Judge. Plaintiff-Appellant Ute Mesa Lot 1, LLC, (“Ute Mesa”) appeals from a bankruptcy court order denying it relief under 11 U.S.C. § 547(b). The narrow issue is whether a notice of lis pendens filed in Colorado can constitute a preferential transfer under 11 U.S.C. § 547(b). Both the bankruptcy and district courts held that a lis pendens is not a transfer because it merely serves as notice of pending litigation. Exercising jurisdiction under 28 U.S.C. § 158(d)(1), we affirm. Background Ute Mesa is a real estate developer in Colorado. In October 2007, it received a $12 million loan from Defendant-Appellee United Western Bank (“Bank”) to finance the construction of a single family home on property it owned in Aspen (“property”). To secure the loan, the Bank prepared a deed of trust incorrectly identifying Ute Mesa’s sole member (Leathern Stern) as the owner rather than Ute Mesa. Because the grantor under the deed of trust was not the owner of the property, the deed of trust was ineffective in giving the Bank a hen on the property. On May 19, 2010, the Bank filed suit in Colorado state court seeking reformation of the deed of trust and a declaration that it had a first priority lien on the property. Two days later, the Bank filed a notice of lis pendens in the Pitkin County real property records. On August 18, 2010, Ute Mesa petitioned for Chapter 11 bankruptcy relief. Ute Mesa continues as debtor in possession of the property. In April 2011, Ute Mesa filed an adversary proceeding against the Bank seeking to avoid the lis pendens as a preferential transfer. The bankruptcy court granted the Bank’s motion to dismiss, and the federal district court affirmed. Relying upon the bankruptcy court’s analysis, the district court recognized that a “lis pendens does not create a lien, retain title as a security interest, or foreclose on a debtor’s equity of redemption.” Ute Mesa Lot 1, LLC v. First Citizens Bank (In re Ute Mesa), No. 11-cv-01786, 2012 WL 1015757, at *3 (D.Colo. Mar. 28, 2012) (internal quotation omitted). It agreed with" }, { "docid": "14517745", "title": "", "text": "(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)(l)-(5). “[F]or purposes of § 547 of the Bankruptcy Code, a transfer is deemed to have been made at the time the transfer is perfected, if perfection takes place more than 30 days after its creationf.]” Kendrick v. CIT Small Bus. Lending Corp. (In re Gruseck & Son, Inc.), 385 B.R. 799, 2008 WL 1756243, at *8 (6th Cir. BAP 2008) (unpublished table opinion) (citing 11 U.S.C. § 547(e)(2)(B)). In this case, the creation and perfection of Countrywide’s interest in the manufactured home occurred at the time of the state-court judgment, which was filed on June 7, 2007. Dickson filed for Chapter 13 bankruptcy on July 16, 2007, placing the state-court judgment well-within the 90-day preference period. While Countrywide asserts that it perfected its lien outside the preference period through the filing of the lis pendens, as described above, a lis pendens cannot perfect an interest in personal property, such as a manufactured home. See Citizens Nat’l Bank, 309 S.W.3d at 795-96. Other than the timing of perfection, Countrywide does not dispute that all of the other requirements of § 547 are satisfied. Accordingly, we hold that Countrywide’s lien on the manufactured home was properly avoided pursuant to § 547. VI. In sum, we hold that Dickson possessed direct statutory standing to avoid Countrywide’s lien pursuant to § 522(h), and that the lien was properly avoided pursuant to § 547. On this basis, we affirm the judgment in favor of Dickson. . Countrywide does not assert that Dickson's manufactured home can be considered an easement, appurtenance, or fixture under Kentucky law. . \"Lis pendens is defined as [a] notice, recorded in the chain of title to real property, ... to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome.\" Greene v. McFarland, 43 S.W.3d 258, 260 (Ky.2001) (internal quotation marks and citation" } ]

[ { "docid": "22708363", "title": "", "text": "the morning, and instructed to return that afternoon. When the jury returned, the Government moved for the discharge of the jury on the ground that a key prosecution witness, for two of the six counts against defendant, was not present. The prosecution knew, prior to the selection and swearing of the jury, that this witness could not be found and had not been served with a subpoena. The trial judge discharged the jury over the defendant’s motions to dismiss two counts for failure to prosecute and to continue the other four. This Court, in reversing the convictions on the ground of double jeopardy, emphasized that “[e]ach case must turn on its facts,” 372 U. S., at 737, and held that the second prosecution constituted double jeopardy, because the absence of the witness and the reason therefor did not there justify, in terms of “manifest necessity,” the declaration of a mistrial. In United States v. Jorn, supra, the Government called a taxpayer witness in a prosecution for willfully assisting in the preparation of fraudulent income tax returns. Prior to his testimony, defense counsel suggested he be warned of his constitutional right against compulsory self-incrimination. The trial judge warned him of his rights, and the witness stated that he was willing to testify and that the Internal Revenue Service agent who first contacted him warned him of his rights. The trial judge, however, did not believe the witness’ declaration that the IRS had so warned him, and refused to allow him to testify until after he had consulted with an attorney. After learning from the Government that the remaining four witnesses were “similarly situated,” and after surmising that they, too, had not been properly informed of their rights, the trial judge declared a mistrial to give the witnesses the opportunity to consult with attorneys. In sustaining a plea in bar of double jeopardy to an attempted second trial of the defendant, the plurality opinion of the Court, emphasizing the importance to the defendant of proceeding before the first jury sworn, concluded: “It is apparent from the record that no consideration was given" } ]

[ { "docid": "23072580", "title": "", "text": "conclude that the court did not commit plain error. VIII A Appellants Elvick and Knutt argue that their trial and conviction for conspiracy violated the Double Jeopardy Clause of the Fifth Amendment because they had already been convicted in North Dakota of conspiracy for their use of the redemption scheme. They did not, however, explicitly raise such an objection at trial. Thus, the government contends that they have waived their right to raise a double jeopardy claim on appeal. Failure to present a double jeopardy challenge constitutes a waiver of that claim. Haddad v. United States, 349 F.2d 511, 514 (9th Cir.1965); see United States v. Broce, 488 U.S. 563, 568, 109 S.Ct. 757, 761, 102 L.Ed.2d 927 (1989) (“the protection against double jeopardy is subject to waiver”) (citing Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987)); see also United States v. Harris, 959 F.2d 246, 251 n. 2 (D.C.Cir.1992). Such a conclusion is particularly apt where, as here, “the [alleged] constitutional error presented itself at the commencement of the second trial.” United States v. Devine, 934 F.2d 1325, 1342-43 (5th Cir.1991). Elvick and Knutt argue that, despite their waiver, we can review their double jeopardy claim for plain error. It is not clear whether we can review for plain error a double jeopardy claim that has been waived. Compare Haddad, 349 F.2d at 514 (failure to plead former jeopardy constitutes waiver) with Devine, 934 F.2d at 1343 (applying plain error analysis where defendant failed to raise double jeopardy claim); Government of the Virgin Islands v. Smith, 445 F.2d 1089 (3d Cir.1971) (same); State v. Miyazaki, 64 Haw. 611, 645 P.2d 1340, 1344 (1982) (same). We do not need to decide, however, whether plain error analysis applies because, even assuming that it does, the appellants’ double jeopardy claim fails. B The appellants characterize their conduct as part of a single conspiracy with a national scope, operated out of North Dakota, with its primary goal being to impede the administration of justice by filing false statements with the IRS. In their view, the Hawaiian defendants were" }, { "docid": "12084331", "title": "", "text": "back the next week and said it had decided to retry count three after all. It is no better off because counts one and four collapsed. The government made what turned out to be a poor concession, not a conditional one. The government argues that, in effect, what occurred was a mistrial. We think this too favorable, but even were it correct, it was the type of mistrial that does not, in the absence of consent, permit reactivation. A mistrial declaration that is not consented to by the defendant must be required by “manifest necessity” or the “ends of public justice,” or it is a bar to further prosecution. See Illinois v. Somerville, 410 U.S. 458, 468-71, 93 S.Ct. 1066, 1072-74, 35 L.Ed.2d 425 (1973). There was no possible necessity here. The more serious question is whether defendant waived the defense of double jeopardy by not pleading it. Double jeopardy is a personal defense that can be waived. United States v. Broce, — U.S. -, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). We note a number of cases in other circuits indicating it may be waived simply by not pleading it. E.g., Paul v. Henderson, 698 F.2d 589, 592 (2d Cir.) (citing cases from seven circuits), cert. denied, 464 U.S. 835, 104 S.Ct. 120, 78 L.Ed.2d 118 (1983). Most of those cases, however, are dicta, and we find none that persuasively addresses the principle that a waiver of a constitutional right must be “voluntary, knowing, [and] intelligent.” United States v. Christian, 571 F.2d 64, 69 (1st Cir.1978). There is no evidence here of knowing. Since it would be an absolute defense, plain error is clearly applicable. The government argues that defendant’s letting count two go to trial was a tactical choice. It says that the presence of count two required it to call Miller, a government informant, as a witness, and that from defendant’s standpoint he was the most vulnerable of the government witnesses, and might prove, net, to be an advantage to defendant. This is a" }, { "docid": "9970862", "title": "", "text": "exhausted and, if so, whether it was properly raised in Tinsley’s federal habeas petition. In the event the claim has been exhausted and preserved, the court should attempt to expand the record to include the prosecutor’s opening statement, should attempt to determine whether Hellings indeed did not make a closing argument, make any other pertinent fact findings and reach its own conclusion on the merits of this claim. B. Tinsley next claims that his second trial violated his rights under the Double Jeopardy Clause of the Fifth Amendment. We disagree. The Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. When a court declares a mistrial without the defendant’s consent, re-prosecution violates the Double Jeopardy Clause unless “there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824); see also Arizona v. Washington, 434 U.S. 497, 500, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). When a court declares a mistrial at the behest of the defendant, however, “the ‘manifest necessity’ standard has no place in the application of the Double Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Rather, if the defendant “requested a mistrial ..., there would be no doubt that if he had been successful, the Government would not have been barred from retrying him,” United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) — with one exception. Namely, when “bad-faith conduct by [a] judge or prosecutor” forces a defendant to move for a mistrial, re-prosecution is barred even though the defendant consented to the mistrial. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). How do these rules apply here? If Tins-ley had not moved for a mistrial, the proper question would be whether the mistrial was a “manifest necessity,” not whether the prosecutor acted in bad faith" }, { "docid": "14430382", "title": "", "text": "(1984). The protection embodied in the Double Jeopardy Clause is a personal defense that may be waived or foreclosed by a defendant’s voluntary actions or choices, including a request for or effectual consent to a mistrial. DiPietro, supra, 936 F.2d at 9. Thus, in the context presently before the court — retrial following the declaration of a mistrial — the key question for double jeopardy purposes is whether the mistrial was declared with the defendant’s consent. United States v. Dinitz, 424 U.S. at 608, 96 S.Ct. at 1080. If a mistrial is declared with the defendant’s consent, she is deemed to have waived any double jeopardy claim she might otherwise have. If, on the other hand, the defendant wishes to proceed to a verdict by the jury empaneled to try her, and the court declares a mistrial over her objection, the double jeopardy clause will bar the defendant’s retrial unless manifest necessity required the court to so act. Id. The only circumstance in which the defendant’s consent to a mistrial does not operate as a waiver of her right to claim double jeopardy is where the prosecutor or the judge intentionally provokes the defendant to request the mistrial. Oregon v. Kennedy, 456 U.S. 667, 678, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982) (citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)). In this criminal trial, the defendant consented to the declaration of a mistrial. After the jury deliberated for a number of hours, it returned with notes requesting further guidance as to the definition of “possession with intent to distribute.” In response, and with the agreement of counsel for the government and the defense, the judge reread the instruction as to Count One. Later, the jury returned with a note indicating they believed they were deadlocked. Once again with the agreement of the defense and the prosecution, a copy of the instruction on their duty to deliberate was sent to the jury along with their note. Finally, on March 8, 1991, the jury indicated that they had reached a unanimous verdict" }, { "docid": "12084330", "title": "", "text": "as another named conspirator. Count three was the same as before, except to be renumbered count two, with count four, in the same terms as before, becoming count three. Defendant went to trial and was duly convicted on all three counts. On counts one and two he was sentenced to ten years each, and on count three, seven years, all to be served concurrently. In addition, he was sentenced to four years supervised release on counts two and three, with a special assessment of $50 on each count. With new counsel, he appeals. Defendant asserts that double jeopardy barred count two. The invalidity of count three of the first indictment did not destroy defendant’s right to claim double jeopardy thereunder. Benton v. Maryland, 395 U.S. 784, 797, 89 S.Ct. 2056, 2064, 23 L.Ed.2d 707 (1969). We have no doubt that he had such a right. On the government's claim to re-prosecute, one need only ask what the court would have said if counts one and four had not been vacated and the government had come back the next week and said it had decided to retry count three after all. It is no better off because counts one and four collapsed. The government made what turned out to be a poor concession, not a conditional one. The government argues that, in effect, what occurred was a mistrial. We think this too favorable, but even were it correct, it was the type of mistrial that does not, in the absence of consent, permit reactivation. A mistrial declaration that is not consented to by the defendant must be required by “manifest necessity” or the “ends of public justice,” or it is a bar to further prosecution. See Illinois v. Somerville, 410 U.S. 458, 468-71, 93 S.Ct. 1066, 1072-74, 35 L.Ed.2d 425 (1973). There was no possible necessity here. The more serious question is whether defendant waived the defense of double jeopardy by not pleading it. Double jeopardy is a personal defense that can be waived. United States v. Broce, — U.S. -, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); Ricketts v. Adamson," }, { "docid": "7790588", "title": "", "text": "six. Both the defendant and the government filed new appeals. The Government’s Appeal We turn first to the government’s cross-appeal of Judge Eubanks’ dismissal of counts one, four, and seven. 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 as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. Under section 3731, an evaluation of the merits of defendant’s double jeopardy claim is necessary in order to determine whether we have jurisdiction to hear the government’s cross-appeal. United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190-91, 57 L.Ed.2d 65 (1978). The law is well settled that if a defendant does not move for or join in a motion for a mistrial, the defendant may only be retried on a showing of “manifest necessity” for the declaration of the mistrial. United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). However, where a defendant consents to a mistrial, there is no bar to retrial unless the government acted in a manner intended to induce a request for a mistrial. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 485 n.12, 91 S.Ct. 547, 557 n.12, 27 L.Ed.2d 543 (1971); United States v. Pollack, 640 F.2d 1152, 1155 (10th Cir. 1981). This court has endorsed the proposition that the double jeopardy clause bars retrial if “bad-faith conduct by the prosecutor, or the judge, prods the defendant into requesting a mistrial.” United States v. Pollack, 640 F.2d 1152, 1155 (10th Cir. 1981); United States v. Brooks, 599 F.2d 943 (10th Cir. 1979); United States v. Leonard, 593 F.2d 951 (10th Cir. 1979); United States v. Nelson, 582 F.2d 1246, 1248-49 (10th Cir. 1978), cert. denied 439" }, { "docid": "22895171", "title": "", "text": "with the time frame of the conspiracy for which he was acquitted. This argument fails to establish that collateral estoppel barred the evidence. L. Mistrial and double jeopardy The defendants next claim that the district court erroneously denied their motion to dismiss the instant prosecution on double jeopardy grounds because there was no manifest necessity for a mistrial in the first case. The defendants reason that the Government induced the mistrial through prosecutorial misconduct by improperly submitting non-admitted exhibits to the first jury. We hold that the record shows that all defendants validly agreed to the mistrial and that there has been no. showing that the Government engaged in intentional misconduct either to induce the defendants’ consent to the mistrial or to avoid an acquittal that it believed was likely- Our review of the denial of a double jeopardy claim following declaration of a mistrial is plenary. United States v. Campbell, 544 F.3d 577, 581 (5th Cir.2008). “We review all factual findings underpinning the district court’s determination for clear error.” Id. Although the Double Jeopardy Clause prohibits a second prosecution following an acquittal, a “ ‘retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.’ ” Id. at 580 (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). The Double Jeopardy Clause will not preclude a defendant from being retried after the district court declares a mistrial over defense objection if the mistrial was justified by a “manifest necessity.” Id. at 580-81; United States v. Palmer, 122 F.3d 215, 218 (5th Cir.1997). If a defendant consents to a mistrial, however, the “manifest necessity” standard is inapplicable and double jeopardy ordinarily will not bar a reprosecution. See Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Palmer, 122 F.3d at 218. The defendant’s consent to a mistrial may be express or implied through a failure to object. Palmer, 122 F.3d at 218. “If a defendant does not timely and explicitly object to a trial court’s sua sponte declaration" }, { "docid": "8617296", "title": "", "text": "denied, 449 U.S. 878, 101 S.Ct. 224, 66 L.Ed.2d 100 (1980); McClain v. Brown, 587 F.2d 389, 391 (8th Cir.1978) (a bar to further prosecution because of former jeopardy is not a jurisdictional defect, but a defense or personal right which must be affirmatively pleaded or is considered waived); United States v. Perez, 565 F.2d 1227, 1232 (2d Cir.1977) (the constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived); United States v. Wild, 551 F.2d 418, 424-25 (D.C.Cir.) (constitutional rights which the defendant may waive include the right not to be twice put in jeopardy), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977); United States v. Buonomo, 441 F.2d 922, 924 (7th Cir.) (constitutional immunity from double jeopardy is a personal right which if not affirmatively pleaded at trial will be regarded as waived), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971). Notwithstanding Menna and our decision in Launius, it is certain that the double jeopardy bar is not absolute. This is nowhere more apparent than in the context of a retrial following a mistrial. Where a mistrial has been declared without the defendant’s request or consent, a new trial may take place so long as there existed a manifest necessity for the mistrial. Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). Similarly, “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). This principle reaches its limits in permitting retrial following an unnecessary mistrial, declared without the defendant’s request or express consent, if the defendant’s statements or silences constitute an implied consent. See United States v. Smith, 621 F.2d 350, 351 (9th Cir.1980), cert. denied, 449 U.S. 1087, 101 S.Ct. 877, 66 L.Ed.2d 813 (1981). The mistrial exceptions to the double jeopardy bar clearly refute the notion that the bar is absolute. The Supreme" }, { "docid": "7790587", "title": "", "text": "was assigned to Judge Luther Eubanks, United States District Judge for the Western District of Oklahoma. Hearings were held on June 30 and July 1, 1981. At these hearings, defendant filed a new motion to dismiss all seven of the original counts on the grounds of prosecutorial and judicial misconduct. Evidence elicited at these hearings revealed the substance of the Thursday night meeting. Judge Eubanks found that because Martinez was not informed about the Thursday night meeting, “the defendant was induced or lead into confessing, stipulating to, or agreeing to a mistrial motion without the benefit of all the facts.” Judge Eubanks held that under these circumstances, defendant’s consent to the motion for mistrial “is no consent at all, because he was not apprised of all the facts in connection with it” and therefore retrial would constitute double jeopardy. Judge Eubanks granted defendant’s original motion to dismiss counts one, four, and seven for which he had been placed in jeopardy. The judge denied the motion to dismiss the previously severed counts two, three, five, and six. Both the defendant and the government filed new appeals. The Government’s Appeal We turn first to the government’s cross-appeal of Judge Eubanks’ dismissal of counts one, four, and seven. 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 as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. Under section 3731, an evaluation of the merits of defendant’s double jeopardy claim is necessary in order to determine whether we have jurisdiction to hear the government’s cross-appeal. United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190-91, 57 L.Ed.2d 65 (1978). The law is well settled that if a defendant does not move for or join in a motion for a mistrial, the defendant may only be retried on a showing of “manifest necessity” for the declaration of the" }, { "docid": "9820098", "title": "", "text": "The Supreme Court recently clarified the appropriate procedure for review by the appellate courts of objections not raised in the district court. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). The Olano Court made it clear that although forfeited rights are reviewable, waived rights are not, even for plain error. Id. at 733, 113 S.Ct. at 1777. (“Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).”). Distinguishing the two, the Court explained that forfeiture is “the failure to make the timely assertion of a right,” whereas waiver is the “relinquishment or abandonment of a known right.” Id. (citations and quotations omitted). The defense of double jeopardy is personal and is capable of waiver. United States v. Broce, 488 U.S. 563, 568, 109 S.Ct. 757, 761, 102 L.Ed.2d 927 (1989). In the context of a plea bargain or guilty plea, it is quite clear that double jeopardy is subject to intelligent and voluntary waiver. See Ricketts v. Adamson, 483 U.S. 1, 11, 107 S.Ct. 2680, 2686, 97 L.Ed.2d 1 (1987) (concluding double jeopardy clause is not implicated where defendant enters a plea bargain); Broce, 488 U.S. at 575, 109 S.Ct. at 765 (finding that guilty plea made voluntarily and intelligently was not subject to collateral attack on appeal). However, in Allen’s case, it appears that he simply failed to raise this issue below, and took no affirmative steps to voluntarily waive his claim. In similar circumstances, three other circuits have concluded that a failure to assert double jeopardy at the trial level constituted a forfeiture of that right, and not a waiver. See United States v. Penny, 60 F.3d 1257, 1261 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996); United States v. Jarvis, 7 F.3d 404, 409-10 (4th Cir.1993), cert. denied, 510 U.S. 1169, 114 S.Ct. 1200, 127 L.Ed.2d 549 (1994); United States v. Rivera, 872 F.2d 507, 509 (1st Cir.), cert. denied, 493 U.S. 818, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989). Absent evidence of a voluntary and intelligent choice" }, { "docid": "22132423", "title": "", "text": "to present a double jeopardy challenge constitutes a waiver of that claim.... It is not clear whether we can review for plain error a double jeopardy claim that has been waived.”); see also United States v. Kearns, 61 F.3d 1422, 1427-28 (9th Cir.1995) (“It is unclear whether we can review Kearns’ double jeopardy claim for plain error. We need not decide whether plain error analysis applies, however, because, even assuming that it does, we reject Kearns’ double jeopardy claim.”) (citation and footnote omitted). In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court noted that the distinction between waiver and forfeiture of a constitutional claim is of consequence in the context of Rule 52(b), which “defines a single category of forfeited-but-reversible error.” Id. at 732, 113 S.Ct. 1770. The Court explained that, “[w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.... Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).” Id. at 733, 113 S.Ct. 1770 (citations and quotations omitted). The Court further noted that, “[i]f a legal rule was violated during the district court proceedings, and if the defendant did not waive the rule, then there has been an ‘error’ within the meaning of Rule 52(b) despite the absence of a timely objection.” Id. at 733-34, 113 S.Ct. 1770. The right against double jeopardy is undoubtedly subject to waiver by a defendant. See Lorenzo, 995 F.2d at 1457 (citing United States v. Broce, 488 U.S. 563, 568-69, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). In the context of a plea bargain or guilty plea, for example, a defendant may intelligently and voluntarily waive his right against double jeopardy. See Broce, 488 U.S. at 575-76, 109 S.Ct. 757 (holding that a voluntary and intelligent guilty plea is not subject to collateral attack on appeal); Ricketts v. Adamson, 483 U.S. 1, 11, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (concluding that the right against double jeopardy is not implicated where the defendant enters" }, { "docid": "22895172", "title": "", "text": "Clause prohibits a second prosecution following an acquittal, a “ ‘retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.’ ” Id. at 580 (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). The Double Jeopardy Clause will not preclude a defendant from being retried after the district court declares a mistrial over defense objection if the mistrial was justified by a “manifest necessity.” Id. at 580-81; United States v. Palmer, 122 F.3d 215, 218 (5th Cir.1997). If a defendant consents to a mistrial, however, the “manifest necessity” standard is inapplicable and double jeopardy ordinarily will not bar a reprosecution. See Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Palmer, 122 F.3d at 218. The defendant’s consent to a mistrial may be express or implied through a failure to object. Palmer, 122 F.3d at 218. “If a defendant does not timely and explicitly object to a trial court’s sua sponte declaration of mistrial, that defendant will be held to have impliedly consented to the mistrial and may be retried in a later proceeding.” Id. The determination of whether a defendant objected to a mistrial is made on a case-by-case basis, and the critical factor is whether a defendant’s objection gave the court sufficient notice and opportunity to resolve the defendant’s concern. United States v. Fisher, 624 F.3d 713, 717 (5th Cir.2010). In the instant case, the record shows that all defense counsel consented to the mistrial either expressly or impliedly. The jury in the first trial of this case clearly struggled to come to a decision. The jurors had deliberated for nineteen days and had been given an Allen charge by the district court when they indicated that they had reached a partial verdict. The jury acquitted defendant Abdulqader on all counts; acquitted defendant Odeh on all counts except for three conspiracy charges, on which it failed to reach a verdict; acquitted El-Mezain on all counts except for the count 1 conspiracy, on which the jury" }, { "docid": "2517611", "title": "", "text": "Double Jeopardy We review the district court’s double jeopardy ruling de novo. United States v. WRW Corp., 986 F.2d 138, 140 (6th Cir.1993). The analytic framework is simple enough. Jeopardy attaches when the original panel is seated and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury, excluding any contemporaneously empaneled and sworn alternates, is barred unless (1) there is a “manifest necessity” for a mistrial or (2) the defendant either requests or consents to a mistrial. United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); United States v. Cameron, 953 F.2d 240, 243 (6th Cir.1992). While the trial court did not formally declare a mistrial, we agree with the parties that what occurred in Watkins’ trial should be treated as a mistrial for purposes of analyzing the double jeopardy question. The original jury did not hear the case through to a verdict, and this fact is the defining characteristic of a mistrial. The government does not argue that there was “manifest necessity” for the mistrial, and the record demonstrates that no mistrial was requested. The issue, then, is whether Watkins consented to the impromptu juror replacement procedure. The thrust of Watkins’ appeal is that her rights to trial by her chosen jury and to freedom from successive prosecutions are “personal” and, therefore, cannot be waived by counsel unless Watkins knowingly, intelligently, and voluntarily authorizes counsel to waive those rights. Cf. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983) (recognizing that criminal defendant “has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal”). Watkins bases this argument primarily on two cases. The first opinion is United States v. Rich, 589 F.2d 1025 (10th Cir.1978), where the Court of Appeals for the Tenth Circuit announced that an attorney lacks authority to waive double" }, { "docid": "23072579", "title": "", "text": "recessed the hearing for two days, in part to allow the appellants to read the indictment. At the next hearing, on December 12,1990, the appellants appeared with their standby counsel, The magistrate judge urged Elvick, Knutt, and Porter to accept the advice of counsel and warned them that they would be “very disadvantaged” without the aid of counsel. The magistrate judge then inquired of counsel whether they had been able to meet with the appellants to discuss and explain the indictment. Knutt’s standby counsel told the court that Knutt had the opportunity to read and review the indictment and that Knutt seemed competent and intelligent enough to understand it. Knutt did not object to counsel’s statements. We recognize that our inquiry must focus on what Knutt understood at the time of his decision, and not what the court said or understood. Balough, 820 F.2d at 1487-88. However, Knutt has not explained how the court’s efforts to warn him about the dangers of representing himself were deficient or what he failed to understand. Thus, we must conclude that the court did not commit plain error. VIII A Appellants Elvick and Knutt argue that their trial and conviction for conspiracy violated the Double Jeopardy Clause of the Fifth Amendment because they had already been convicted in North Dakota of conspiracy for their use of the redemption scheme. They did not, however, explicitly raise such an objection at trial. Thus, the government contends that they have waived their right to raise a double jeopardy claim on appeal. Failure to present a double jeopardy challenge constitutes a waiver of that claim. Haddad v. United States, 349 F.2d 511, 514 (9th Cir.1965); see United States v. Broce, 488 U.S. 563, 568, 109 S.Ct. 757, 761, 102 L.Ed.2d 927 (1989) (“the protection against double jeopardy is subject to waiver”) (citing Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987)); see also United States v. Harris, 959 F.2d 246, 251 n. 2 (D.C.Cir.1992). Such a conclusion is particularly apt where, as here, “the [alleged] constitutional error presented itself at the commencement of the" }, { "docid": "10425322", "title": "", "text": "fair opportunity to offer whatever proof it [can] assemble.” Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). If the government cannot meet its burden of proof at the first trial, the Double Jeopardy Clause prevents the court from withholding the issue from the jury and allowing the government to reprosecute before a more favorable jury. Nonetheless, the Double Jeopardy Clause does not automatically bar retrial when a criminal proceeding is terminated without a final resolution on the merits of the charges. As the Supreme Court has explained: Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Washington, 434 U.S. at 505, 98 S.Ct. at 830. The Supreme Court has long since formulated the following rules for determining whether double jeopardy bars reprosecution after a mistrial. If a judge declares a mistrial over the defendant’s objection or without the defendant’s consent, the defendant cannot be retried unless there was “manifest necessity” for the termination of the first trial. Arizona, 434 U.S. at 509-10, 98 S.Ct. at 832-33; Green, 355 U.S. at 188, 78 S.Ct. at 223-24; United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); United States v. Council, 973 F.2d 251, 255 (4th Cir.1992). However, if the defendant moved for mistrial or otherwise consents to the mistrial, the defendant can be reprosecuted unless he can demonstrate that the prosecutor or judge provoked the mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416 (1982). In this case, the district court did not declare a mistrial; instead, the district court completed most of the trial but failed to try a discrete issue required for conviction of the forfeiture count. Under Rule 31(e), a district court" }, { "docid": "3952417", "title": "", "text": "case of a mistrial declared at the defendant’s request, the manifest necessity standard does not apply. Id. This is because a defendant’s motion for mistrial constitutes an election to forgo the “valued right to have his guilt or innocence determined by the first trier of fact.” Scott, 437 U.S. at 93, 98 S.Ct. 2187 (citing United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)). So too, when a defendant expressly or impliedly consents to a mistrial. United States v. Palmer, 122 F.3d 215, 218 (5th Cir. 1997). And, if a defendant fails to timely object to a mistrial declaration, he is held to have impliedly consented to the mistrial and may be retried in a later proceeding. Id. at 218. When the defense moves for, or consents to, a mistrial, the Double Jeopardy Clause may bar retrial if the government “intended to goad the defendant” into requesting a mistrial. See United States v. Wharton, 320 F.3d 526, 531 (5th Cir.2003) (citation and internal quotation marks omitted). But this standard is exacting. Government misconduct “that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion ... does not bar retrial.” Kennedy, 456 U.S. at 675-76, 102 S.Ct. 2083. Not even the government’s “gross negligence” would prevent a retrial of the defendant. Robinson v. Wade, 686 F.2d 298, 306 & n. 17 (5th Cir.1982). Instead, the Double Jeopardy clause bars retrial only when “bad faith conduct by judge or prosecutor threatens harassment of an accused ... so as to afford the prosecution a more favorable opportunity to convict the defendant.” Dinitz, 424 U.S. at 611, 96 S.Ct. 1075. A prosecutor or judge must specifically act in “bad faith” or must intend to goad the defendant “into requesting a mistrial or to prejudice the defendant’s prospects for an acquittal.” Id. at 611-12, 96 S.Ct. 1075. In this case, we do not need to decide whether Judge Best should have notified the parties of the direction of the jury’s verdict. This is because the critical inquiry is what Judge Best intended" }, { "docid": "12084332", "title": "", "text": "483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). We note a number of cases in other circuits indicating it may be waived simply by not pleading it. E.g., Paul v. Henderson, 698 F.2d 589, 592 (2d Cir.) (citing cases from seven circuits), cert. denied, 464 U.S. 835, 104 S.Ct. 120, 78 L.Ed.2d 118 (1983). Most of those cases, however, are dicta, and we find none that persuasively addresses the principle that a waiver of a constitutional right must be “voluntary, knowing, [and] intelligent.” United States v. Christian, 571 F.2d 64, 69 (1st Cir.1978). There is no evidence here of knowing. Since it would be an absolute defense, plain error is clearly applicable. The government argues that defendant’s letting count two go to trial was a tactical choice. It says that the presence of count two required it to call Miller, a government informant, as a witness, and that from defendant’s standpoint he was the most vulnerable of the government witnesses, and might prove, net, to be an advantage to defendant. This is a thin reed. Just as we reject defendant’s claim, post, that the presence of count two required him, the defendant, to take the stand, neither would the government have to call Miller. We do not accept the government’s claim of conscious choice. The conviction on count two must be vacated. As to counts one and three, defendant made no objections to the charge, but we are now inundated with complaints. We recognize, of course, that a defendant may assert plain error, but we realize, too, that plain error with respect to a matter readily remediable, if not a trap for the court (advertent or inadvertent), gives a defendant a free second bite at the cherry, and is to be narrowly limited. See United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert. denied, — U.S. -, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). An error is not plain unless it sufficiently appears that it would likely have affected the outcome. See United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d" }, { "docid": "6004265", "title": "", "text": "guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded”). The government urges that the controlling law is found in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). In Richardson, the defendant was acquitted on one count but the jury was not able to agree on two other counts, so the district court declared a mistrial as to the remaining counts and scheduled a retrial. The defendant argued that such a retrial was barred by the Double Jeopardy Clause, but the Supreme Court rejected that argument, emphasizing that once a jury is unable to reach a verdict and a declaration of mistrial has been made by the court, the hung jury is not the equivalent of an acquittal. The Court relied on a long line of cases, starting with the opinion of Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), which hold that “a failure of the jury to agree on a verdict [is] an instance of ‘manifest necessity’ which permit[s] a trial judge to terminate the first trial and retry the defendant, because ‘the ends of public justice would otherwise be defeated.’ ” Richardson, 468 U.S. at 323-24, 104 S.Ct. at 3085 (quoting Perez, 22 U.S. (9 Wheat.) at 580). Here, of course, rather than returning a blank verdict form, the jury wrote on the form, “After all reasonable efforts, we, the jury, were unable to reach a verdict on the charge ‘Attempted Aggravated Sexual Abuse.’ ” In resolving this complex question, we begin with what is certain. First, jeopardy did not terminate on the greater offense because the jury could not agree as to that offense and the district court therefore declared a mistrial. See Richardson, 468 U.S. at 323-25, 104 S.Ct. at 3084-86. Second, jeopardy did not terminate on the lesser included offense because of the established rule that a person can be retried for an offense when" }, { "docid": "14430397", "title": "", "text": "to its declaration, the double jeopardy clause will not bar his retrial.) (citing United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978)); United States v. Rivera, 802 F.2d 593, 597 (2d Cir.1986) (The critical double jeopardy inquiry in the mistrial context is whether the defendant sought or consented to the mistrial.); United States v. Mitchell, 736 F.2d 1299, 1300 (9th Cir.), cert. denied sub nom, 474 U.S. 830, 106 S.Ct. 94, 88 L.Ed.2d 77 (1985) (Where defendant consents to a mistrial ... the \"manifest necessity” doctrine does not come into play and as a general rule retrial is permitted because defendant himself has elected to terminate the proceedings and begin afresh.) (citing Oregon v. Kennedy, 456 U.S. at 672, 102 S.Ct. at 2087); United States v. Phillips, 431 F.2d 949, 950 (3d Cir.1970) (Defendant who failed to object to court’s proposal to discharge jury because of irreconcilable disagreement was not entitled to have indictment dismissed on the ground of double jeopardy.). . The note read: The jury has not reached a verdict. There is one juror who says she is not clear. . The text of the note read: Guided by your instructions, and after deliberating eight times, and after discussing the facts of this case we have reach[ed] an unanimous decision for Count II, but the voting for Count I is 10 to 2. The jurors do not desire to change their voting. Please advise us about this matter. .Appellant suggests in a footnote of her brief that she should not have been expected to object on the date the mistrial was declared since the government was given three days to request a retrial. We find these facts irrelevant to the issue of whether or not defendant should be deemed to have waived her double jeopardy claims. The reason a distinction is made between mistrials declared by the court sua sponte and mistrials granted at the defendant's request or with her consent is that a defendant has a right to receive a final judgment from the jury before which she was first" }, { "docid": "22132424", "title": "", "text": "under Rule 52(b).” Id. at 733, 113 S.Ct. 1770 (citations and quotations omitted). The Court further noted that, “[i]f a legal rule was violated during the district court proceedings, and if the defendant did not waive the rule, then there has been an ‘error’ within the meaning of Rule 52(b) despite the absence of a timely objection.” Id. at 733-34, 113 S.Ct. 1770. The right against double jeopardy is undoubtedly subject to waiver by a defendant. See Lorenzo, 995 F.2d at 1457 (citing United States v. Broce, 488 U.S. 563, 568-69, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). In the context of a plea bargain or guilty plea, for example, a defendant may intelligently and voluntarily waive his right against double jeopardy. See Broce, 488 U.S. at 575-76, 109 S.Ct. 757 (holding that a voluntary and intelligent guilty plea is not subject to collateral attack on appeal); Ricketts v. Adamson, 483 U.S. 1, 11, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (concluding that the right against double jeopardy is not implicated where the defendant enters into a plea bargain). In this case, however, Jimenez-Frias failed to raise a double jeopardy claim before the district court but took no affirmative steps to relinquish his right against double jeopardy. Four circuits have concluded in similar circumstances that a failure to assert double jeopardy before the district court was a forfeiture of that right, not a waiver. See United States v. Branham, 97 F.3d 885, 842 (6th Cir.1996); United States v. Penny, 60 F.3d 1257, 1261 (7th Cir.1995); United States v. Jarvis, 7 F.3d 404, 409-10 (4th Cir.1993); United States v. Rivera, 872 F.2d 507, 509 (1st Cir.1989). Absent evidence of a voluntary and intelligent relinquishment by Jimenez-Frias of his right against double jeopardy, his failure to object constituted a forfeiture rather than a waiver of his double jeopardy claim. We may therefore review it for plain error. A district court may declare a mistrial and retry a defendant without violating the prohibition against double jeopardy when there is a manifest necessity for the discharge of the original proceeding. See Arizona v. Washington," } ]

[ { "docid": "22848078", "title": "", "text": "considerations urge that we recognize pendent personal jurisdiction of a district court which has obtained personal jurisdiction over a defendant by reason of a federal claim to adjudicate state claims properly within the court’s subject matter jurisdiction, even though that state’s long-arm statute could not authorize service over the defendants with respect to the state claims. When a federal statute authorizes a federal district court to exercise personal jurisdiction over a defendant beyond the borders of the district and the defendant is effectively brought before the court, we can find little reason not to authorize the court to adjudicate a state claim properly within the court’s subject matter jurisdiction so long as the facts of the federal and state claims arise from a common nucleus of operative fact. The defendant will have to adjudicate the facts of the federal claim, and it could impose only a minimal burden to require the defendant to provide a defense on the factually-related state claim. We agree with the observation that judicial economy and convenience of the parties is best facilitated by a consideration of all legal theories arising from a single set of operative facts____ Once that set of facts and defendants are legitimately before th[e] court ... little would be gained by not requiring a defendant to defend against a certain type of theory superimposed upon those facts. Sohns v. Dahl, 392 F.Supp. 1208, 1218 (W.D.Va.1975). Accordingly, we conclude that under the doctrine of pendent personal jurisdiction, the district court has authority over the defendants to decide both the federal and the state claims alleged against them. In recognizing pendent personal jurisdiction, we join the other circuits that have done so. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993); see also Oetiker v. Jurid Werke, G.m.b.H., 556 F.2d 1, 4-5 (D.C.Cir.1977); Robinson v. Penn Central Co., 484 F.2d 553, 555 (3d Cir.1973). Our recognition of pendent personal jurisdiction should present no constitutional objection any more serious than did pendent jurisdiction involving the court’s subject matter jurisdiction. Once a court has a constitutional case, in the Article III" } ]

[ { "docid": "2938140", "title": "", "text": "other Title VII and state tort claims were dismissed; rather, he contends that subject matter jurisdiction over the state claim was never conferred upon the district court. This case, therefore, concerns the district court’s power to hear state law claims rather than its discretionary exercise of that power. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988). In 1990, Congress codified the common law rules of pendent'jurisdiction under the term “supplemental jurisdiction.” 28 U.S.C. § 1367(a); see also Brazinski v. Amoco Petroleum Additives Company, 6 F.3d 1176, 1182 (7th Cir.1993). Section 1367(a) expressly encompasses both pendent claim and pendent party jurisdiction. Brazinski, 6 F.3d at 1181-82. The statute confers supplemental jurisdiction to the limits Article III of the Constitution permits, authorizing federal courts to hear all -claims that “are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). Accordingly, judicial power to hear both state and federal claims exists where the federal claim has sufficient substance to confer subject matter jurisdiction on the court, and the state and federal claims derive from a common nucleus of operative facts. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Myers v. County of Lake, 30 F.3d 847, 850 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994); see also 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3567.3 (2d ed. 1984 & Supp.1994) (statute ratified and incorporated the Supreme Court’s constitutional analysis in the Gibbs case). A loose factual connection between the. claims is generally sufficient. 13B Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3567.1, at 117 (2d ed. 1984). Sween argues that the Title VII and the assault and battery claims did not arise from a common nucleus of facts because it was not necessary to establish that the assault occurred as Ammerman alleged to prove" }, { "docid": "5957098", "title": "", "text": "which the court tied its exercise of personal jurisdiction to the federal court's subject matter jurisdiction to hear ''actions,'' as provided by 28 U.S.C. § 1332. See Hargrave, 646 F.2d at 719-20. While, as pointed out by the Har-grave court, Sections 1331 and 1332 of Title 28 grant the district courts original jurisdiction over “civil actions” when their requirements are met, Section 1367(a) grants district courts subject matter jurisdiction over \"claims” only. See 28 U.S.C. § 1367(a). . There is no question that application of pendent personal jurisdiction requires a common nucleus of operative fact between the claim over which jurisdiction has been established and the claim over which pendent personal jurisdiction is sought. See Robinson Eng’g, 223 F.3d at 449; Herrmann, 9 F.3d at 1056; Hargrave, 646 F.2d at 719-20; 4A Wright & Miller 3D § 1069.7. . Am Cpt. ¶¶ 72, 87, 167. . See, e.g., Wigand v. Flo-Tek, Inc., 609 F.2d 1028, 1033 (2d Cir.1979) (applying Gibbs test in subject-matter jurisdiction context and reversing the district court’s exercise of jurisdiction when the federal claim rested on events prior to the effective date of a contract while state law claim rested on events occurring after that date). . See Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (\"A 'conspirator must intend to further an endeav- or which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor.”). .The Court has subject-matter jurisdiction over plaintiffs’ claims against Ahmed in Counts One and Two, even though they do not share a common nucleus of operative facts with the federal claim against him in Count Six, pursuant to 28 U.S.C. § 1367(a), which incorporates what formerly was known as \"pendent party jurisdiction.” “Pendent party jurisdiction, as compared to pendent [subject matter] jurisdiction, involves the assertion of 'jurisdiction over parties not named in any claim that is independently cognizable by the federal court.' \" Colonomos v. Ritz-Carlton Hotel Co., LLC, No. 98 Civ. 2633(RCC), 2002 WL 732113," }, { "docid": "16214459", "title": "", "text": "nationwide service of process, the inquiry to determine “minimum contacts” is thus “whether the defendant has acted within any district of the United States or sufficiently caused foreseeable consequences in this country.” Vigman, 764 F.2d at 1316. As a Virginia professional corporation operating in the United States, Wolcott has clearly had such minimum contacts. Constitutional principles of due process are therefore satisfied, and personal jurisdiction over Action and Vanguard’s antitrust claims against Wolcott is proper. III. Pendent Personal Jurisdiction Having established personal jurisdiction over Wolcott for Action and Vanguard’s antitrust claims, we must determine whether the court also has personal jurisdiction over Wolcott with respect to their California state-law claims. Personal jurisdiction must exist for each claim asserted against a defendant. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1289 n. 8 (9th Cir.1977). If the state-law claims against Wolcott are to be heard in the Central District of California, there must be a basis for personal jurisdiction over these claims. For purposes of our analysis, we accept Wolcott’s contention that California’s long-arm statute (which is coextensive with the jurisdiction allowable under the Due Process Clause of the Fourteenth Amendment), see Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998) (citing Cal.Civ.Proc.Code § 410.10), would not allow the exercise of personal jurisdiction over these state-law claims if they were standing alone. Many of our sister circuits have adopted the doctrine of “pendent personal jurisdiction.” Under this doctrine, a court may assert pendent personal jurisdiction over a defendant with respect to a claim for which there is no independent basis of personal jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in the same suit over which the court does have personal jurisdiction. See, e.g., United States v. Botefuhr, 309 F.3d 1263, 1272-75 (10th Cir.2002); Robinson Eng’g Co., Ltd. Pension Plan Trust v. George, 223 F.3d 445, 449-50 (7th Cir.2000); ESAB Group, 126 F.3d at 628-29; IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056-57 (2d Cir.1993); Oetiker v. Werke, 556 F.2d 1, 5 (D.C.Cir.1977); Robinson v." }, { "docid": "5957095", "title": "", "text": "Ex. 22, McRory Dep. 166. . See id. Ex. 24. . Berry Aff. Ex. 20. . 4A Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure: Civil 3D § 1069.7 (2002) (emphasis added) [hereinafter Wright & Miller 3D]; see Anglo Am. Ins. Group, P.L.C. v. CalFed Inc., 916 F.Supp. 1324, 1332 n. 17 (S.D.N.Y.1996). . See Pieczenik, 2000 WL 959753, at *4 (citing Beacon Enter., Inc. v. Menzies, 715 F.2d 757, 764 (2d Cir.1983), in turn citing McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321. 52 N.Y.2d 268, 437 N.Y.S.2d 643, 645, 419 N.E.2d 321 (1981)). . See PL Mem. 44-45 (indicating that the acts of Brickellbush, Satinwood, Sphinx Rock, and Faily in connection with the Timberland & Tiburón Transaction would give the Court long-arm jurisdiction “on the First and Second pendent state law claims”). . Am. Cpt. ¶ 167. . Id. ¶ 173 (“At the January 16, 1997 meeting, Sohrab, Ahmed, Afsar and Schlegelmilch agreed to assist Sohrab's efforts in concealing from plaintiffs the fact that Sohrab was entitled to a significant inheritance from Soley-man and to conceal his interest in the Va-habzadeh family assets overseas.”) . Am. Cpt. ¶ 22(g). . See, e.g., Jazini, 148 F.3d at 184, 185; Barrett, 646 F.Supp. at 1350. . Simon, 86 F.Supp.2d at 120 (quoting Chrysler Capital Corp., 778 F.Supp. at 1268- 69, in turn quoting Dixon, 507 F.Supp. at 350); see also Grove Press, 649 F.2d at 122; Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 199, 522 N.E.2d 40. . PL Mem. 42. . Id. . See, e.g., Grove Press, 649 F.2d at 122 (required showing is that alleged agent “acted in New York ... under some control by ... the nonresident principal” (emphasis added)). . N.Y. C.P.L.R. § 302(a), subd. (3)(i)-(ii) (McKinney 2001). . See supra text accompanying notes 58-59, 133-36. . PI. Mem. 45-46. . E.g., IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993) (holding that, when court has personal jurisdiction over defendant on federal claim by virtue of statute authorizing nationwide service of process, it may" }, { "docid": "433636", "title": "", "text": "Simard, supra, at 1625-26 & nn. 24-26 (collecting cases and explaining how the majority of federal courts have upheld pendent personal jurisdiction); see also Robinson Eng’g Co. Ltd. Pension Plan & Trust v. George, 223 F.3d 445, 449 (7th Cir.2000) (explaining that a district court properly invoked pendent personal jurisdiction over a RICO claim that arose “out of the same nucleus of operative fact” as a federal securities claim); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 628-29 (4th Cir.1997) (analogizing to supplemental subject matter jurisdiction and adopting the doctrine of pendent personal jurisdiction); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993) (explaining that pendent personal jurisdiction may be invoked for related state law claims “even if personal jurisdiction is not otherwise available”); Oetiker v. Jurid Werke, G.m.b.H., 556 F.2d 1, 4-5 & n. 10 (D.C.Cir.1977) (collecting cases and adopting pendent personal jurisdiction); Clapsaddle v. Telscape Int’l, Inc., 50 F.Supp.2d 1086, 1090 (D.N.M.1998) (applying pendent personal jurisdiction principles). Like these courts and commentators, we agree that where claims “arise from the same common nucleus of operative fact” “the inconvenience to a defendant ... is not [necessarily] sufficient to dismiss ... for lack of personal jurisdiction.” 4A Wright & Miller, supra, § 1069.7, at 228. Of course, even where a court could legally exercise pendent personal jurisdiction over a claim, a district court retains discretion. See Oetiker, 556 F.2d at 5 (explaining that a district court has discretion over whether to “exercise jurisdiction over the personal pendent jurisdiction claims”); 4A Wright & Miller, supra, § 1069.7, at 235-36 (explaining that courts have “the discretion to decline to exercise pendent personal jurisdiction”). Generally, when a district court dismisses the federal claims, leaving only supplemented state claims, “the most common response ... has been to dismiss the state claim or claims without prejudice.” Ball v. Renner, 54 F.3d 664, 669 (10th Cir.1995). Indeed, while we have suggested that it is appropriate, perhaps even advisable, for a district court to retain supplemented state claims after dismissing all federal questions when the parties have already expended a great deal of" }, { "docid": "22275293", "title": "", "text": "Because defendants failed to make this argument before the district court, we need not address it on appeal. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.1994). We consider this claim only to clarify the distinction between what a plaintiff asserting jurisdiction under a federal statute must allege to survive a defendant’s 12(b)(1) or 12(b)(2) motion on the one hand, and a defendant’s 12(b)(6) motion on the other. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1055-57 (2d Cir.1993) (comparing jurisdictional standards under 12(b)(1) and 12(b)(2) with 12(b)(6) standards), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). When a jurisdictional motion to dismiss depends, as in this case, on the assertion of a right created by a federal statute, the court should dismiss for lack of jurisdiction only if “the right claimed is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise devoid of merit as not to involve a federal controversy.’” Id. at 1055 (citations omitted); see also Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256 (11th Cir.1997) (dismissal for lack of subject matter jurisdiction is only appropriate when plaintiffs federal claim is “clearly immaterial or insubstantial”). The Second Circuit in Herrmann held that because plaintiffs had asserted a colorable claim under a federal statute, they were entitled to take advantage of that statute’s nationwide service of process provision. 9 F.3d at 1056 (finding jurisdiction under Multi-employer Pension Plan Amendments Act (“MPPAA”)). The Herrmann court therefore proceeded to decide that it had personal jurisdiction over defendants under MPPAA’s nationwide service of process provision before addressing defendants’ motion to dismiss for failure to state a claim under that statute. Id. at 1057 (distinguishing between a “colorable federal claim” and a “federal claim upon which relief can be granted”). We adopt the same approach and conclude that insofar as an asserted federal claim is not wholly immaterial or insubstantial, a plaintiff is entitled to take advantage of the federal statute’s nationwide service of process provision. Because the First American defendants waived their argument challenging Panama’s right to utilize RICO’s nationwide" }, { "docid": "23452500", "title": "", "text": "other operations in Utah. McCluskey v. BellSouth Med. Assistance Plan, 23 F.Supp.2d 1312, 1315 (D.Utah 1998). Applying a “traditional personal jurisdiction test,” the lower court held that defendants lacked “sufficient contacts” with Utah to support the exercise of personal jurisdiction and thus dismissed the suit. Id. On appeal, plaintiffs argue that ERISA, 29 U.S.C. § 1132(e)(2), authorizes nationwide service of process and consequently nationwide personal jurisdiction. They assert that when a court’s jurisdiction is invoked based on ERISA’s nationwide service of process provision, minimum contacts with the forum are unnecessary. Under these circumstances, plaintiffs insist, a federal district court can exercise jurisdiction over defendants as long as defendants have minimum contacts with the United States. Plaintiffs claim that defendants have the requisite minimum contacts because defendants are large corporations carrying on day-to-day business throughout this country. Defendants contend that even if § 1132(e)(2) authorizes nationwide service of process, it does not authorize nationwide jurisdiction. They argue that under the plain language of § 1132(e)(2), personal jurisdiction in ERISA cases is co-extensive with venue and plaintiffs cannot establish either of these procedural requirements. B. Before a federal court can assert personal jurisdiction over a defendant in a federal question case, the court must determine (1) “whether the applicable statute potentially confers jurisdiction” by authorizing service of process on the defendant and (2) “whether the exercise of jurisdiction comports with due process.” Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir.1997); see also Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (finding, in a federal question case, that before a federal court may exercise personal jurisdiction over a defendant, there must be “a basis for the defendant’s amenability to service of summons”). While service of process and personal jurisdiction both must be satisfied before a suit can proceed, they are distinct concepts that require separate inquiries. Willingway Hosp., Inc. v. Blue Cross & Blue Shield, 870 F.Supp. 1102, 1104 (S.D.Ga.1994) (citing 4 Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure § 1063 (1987))." }, { "docid": "433635", "title": "", "text": "of the same case or controversy under Article III of the United States Constitution.”). By contrast, pendent personal jurisdiction is not explicitly authorized by statute and remains, at least in the view of most commentators, “a federal common law doctrine.” 4A Miller & Wright, supra, § 1069.7, at 227 (arguing that § 1367 cannot be read as authorizing pendent personal jurisdiction and explaining that the concept “must be properly understood to be a federal common law doctrine”). However, the majority of federal district courts and every circuit court of appeals to address the question have upheld the application of pendent personal jurisdiction, and we see no reason why, in certain situations, the assertion of pendent personal jurisdiction would be inappropriate. See Starlight Int'l Inc. v. Herlihy, 13 F.Supp.2d 1178, 1185 (D.Kan.1998) (explaining that “every circuit court confronting the issue has ... upheld the principle of pendent personal jurisdiction”); 4A Wright & Miller, supra, § 1069.7, at 228 (explaining that “most federal courts that have dealt with the subject” have adopted the pendent personal jurisdiction doctrine); Simard, supra, at 1625-26 & nn. 24-26 (collecting cases and explaining how the majority of federal courts have upheld pendent personal jurisdiction); see also Robinson Eng’g Co. Ltd. Pension Plan & Trust v. George, 223 F.3d 445, 449 (7th Cir.2000) (explaining that a district court properly invoked pendent personal jurisdiction over a RICO claim that arose “out of the same nucleus of operative fact” as a federal securities claim); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 628-29 (4th Cir.1997) (analogizing to supplemental subject matter jurisdiction and adopting the doctrine of pendent personal jurisdiction); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993) (explaining that pendent personal jurisdiction may be invoked for related state law claims “even if personal jurisdiction is not otherwise available”); Oetiker v. Jurid Werke, G.m.b.H., 556 F.2d 1, 4-5 & n. 10 (D.C.Cir.1977) (collecting cases and adopting pendent personal jurisdiction); Clapsaddle v. Telscape Int’l, Inc., 50 F.Supp.2d 1086, 1090 (D.N.M.1998) (applying pendent personal jurisdiction principles). Like these courts and commentators, we agree that where claims “arise from" }, { "docid": "18375447", "title": "", "text": "Industries, 972 F.2d 580, 585 (5th Cir.1992); Certain Underwriters at Lloyd’s, London and Other Insurers Subscribing to Reinsurance v. Warrantech Corp., 461 F.3d 568, 578-79 & nn. 58 & 59 (5th Cir.2006). .Where a federal statute authorizes nationwide and worldwide service of process and allows for personal jurisdiction over foreigners not present in the United States, here the 1934 Exchange Act, 15 U.S.C. § 78aa, the appropriate analysis is (1) whether the defendant has had constitutionally sufficient minimum contacts with the United States as a whole (in accordance with the due process clause of Fifth Amendment) and (2) whether the exercise of personal jurisdiction is reasonable, i.e., consistent with \"traditional notions of fair play and substantial justice.” Pinker v. Roche Holdings Ltd., 292 F.3d 361, 369-71 & n. 2 (3d Cir.2002); Busch v. Buchman, Buchman & O'Brien, 11 F.3d 1255, 1258 (5th Cir.1994)(called into question, but followed in Bellaire General Hospital v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 825-26 (5th Cir.1996)); In re Alstom SA Securities Litig., 406 F.Supp.2d 346, 398 (S.D.N.Y.2005); SEC v. Softpoint, Inc., No. 95 Civ. 2951 GEL, 2001 WL 43611, *2-5 (S.D.N.Y. Jan. 18, 2001)(‘'The federal securities laws authorize worldwide service of process, see 15 U.S.C. §§ 77v(a) & 78aa, and permit the exercise of personal jurisdiction to the limit of the Fifth Amendment's Due Process Clause.”)(extended discussion). \"Pendent personal jurisdiction exists [over a defendant regarding Plaintiffs’ state-law claims] 'where a federal statute authorizes nationwide service of process, and the federal and state claims 'derive from a common nucleus of operative facts.’' \" High River Ltd. Partnership v. Mylan Laboratories, Inc., 353 F.Supp.2d 487, 495 (M.D.Pa.2005), quoting IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993)(quoting in turn United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). \"Under these circumstances, a district court may exercise personal jurisdiction over the defendant with respect to related state law claims even though personal jurisdiction would not otherwise exist.” Id., citing Int’l Controls Corp. v. Vesco, 593 F.2d 166, 175 (2d Cir.1979). Here Plaintiffs state-law claims involve" }, { "docid": "5957097", "title": "", "text": "exercise pendent personal jurisdiction over related state law claims), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Hargrave v. Oki Nursery, Inc., 646 F.2d 716, 719-21 (2d Cir.1980) (holding that, when court has personal jurisdiction over defendant on state law claim, it may exercise personal jurisdiction on related state law claim); see also Robinson Eng’g Co. Pension Plan & Trust v. George 223 F.3d 445, 449 (7th Cir.2000) (holding that, when court has jurisdiction over foreign defendant on a federal securities claim, it may exercise pendent personal jurisdiction on RICO claim sharing a common nucleus of operative fact). . Without going into excessive detail, it is arguable that a state law claim over which a district court has subject matter jurisdiction only by reason of pendent party jurisdiction, as codified in 28 U.S.C. § 1367(a), is an insufficient anchor for assertion of pendent personal jurisdiction over a federal claim that otherwise could not be heard in the forum state. This view is suggested by the Second Circuit's rationale in Hargrave, in which the court tied its exercise of personal jurisdiction to the federal court's subject matter jurisdiction to hear ''actions,'' as provided by 28 U.S.C. § 1332. See Hargrave, 646 F.2d at 719-20. While, as pointed out by the Har-grave court, Sections 1331 and 1332 of Title 28 grant the district courts original jurisdiction over “civil actions” when their requirements are met, Section 1367(a) grants district courts subject matter jurisdiction over \"claims” only. See 28 U.S.C. § 1367(a). . There is no question that application of pendent personal jurisdiction requires a common nucleus of operative fact between the claim over which jurisdiction has been established and the claim over which pendent personal jurisdiction is sought. See Robinson Eng’g, 223 F.3d at 449; Herrmann, 9 F.3d at 1056; Hargrave, 646 F.2d at 719-20; 4A Wright & Miller 3D § 1069.7. . Am Cpt. ¶¶ 72, 87, 167. . See, e.g., Wigand v. Flo-Tek, Inc., 609 F.2d 1028, 1033 (2d Cir.1979) (applying Gibbs test in subject-matter jurisdiction context and reversing the district court’s exercise of jurisdiction when the" }, { "docid": "3317302", "title": "", "text": "removal of this action was this Court’s exercise of federal question juris diction under 28 U.S.C. § 1331, which serves as an independent basis for subject matter jurisdiction in federal district courts. As already concluded above, valid personal jurisdiction exists over Plaintiffs’ Fair Housing Act claim. The question therefore becomes, if this federal court has valid personal jurisdiction over at least one federal question claim before it, may personal jurisdiction thereby be exercised over all other claims before it? In the federal arena, consideration by courts faced with this question has given rise to a doctrine commonly referred to as pendent personal jurisdiction. That is, where a federal court has valid personal jurisdiction over a defendant for one or more claims, but personal jurisdiction over other claims is lacking, may the court nevertheless require the defendant to respond to all claims on the basis of extending personal jurisdiction over those claims pendent to the action? See 4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1069.7 (3d ed.2002) (discussing history and application of the doctrine). Though there is no reported decision from the Sixth Circuit discussing this doctrine, each of the federal circuit courts presented with the circumstance has applied pendent personal jurisdiction. See Linda Sand-strom Simard, Exploring the Limits of Specific Personal Jurisdiction, 62 Ohio St. L.J. 1619, 1625 & n. 25 (2001). There are differing viewpoints on the doctrine among the federal district courts, though the majority of federal trial courts have applied the doctrine. Simard, supra, at 1626 & n. 26. At least one federal district court within this judicial circuit has approved of and applied the doctrine. Iron Workers Local Union No. 17 Insurance Fund v. Philip Morris Inc., 23 F.Supp.2d 796, 804-05 (N.D.Ohio 1998) (finding exercise of pendent personal jurisdiction over state law claims appropriate where personal jurisdiction existed under RICO’s nationwide service of process provision and state law claims derive from common nucleus of operative fact). Most of the cases thus far that have had occasion to consider the doctrine involved circumstances where the federal statute sued upon authorized nationwide" }, { "docid": "16214460", "title": "", "text": "long-arm statute (which is coextensive with the jurisdiction allowable under the Due Process Clause of the Fourteenth Amendment), see Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998) (citing Cal.Civ.Proc.Code § 410.10), would not allow the exercise of personal jurisdiction over these state-law claims if they were standing alone. Many of our sister circuits have adopted the doctrine of “pendent personal jurisdiction.” Under this doctrine, a court may assert pendent personal jurisdiction over a defendant with respect to a claim for which there is no independent basis of personal jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in the same suit over which the court does have personal jurisdiction. See, e.g., United States v. Botefuhr, 309 F.3d 1263, 1272-75 (10th Cir.2002); Robinson Eng’g Co., Ltd. Pension Plan Trust v. George, 223 F.3d 445, 449-50 (7th Cir.2000); ESAB Group, 126 F.3d at 628-29; IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056-57 (2d Cir.1993); Oetiker v. Werke, 556 F.2d 1, 5 (D.C.Cir.1977); Robinson v. Penn Cent. Co., 484 F.2d 553, 555-56 (3d Cir.1973). Pendent personal jurisdiction is typically found where one or more federal claims for which there is nationwide personal jurisdiction are combined in the same suit with one or more state or federal claims for which there is not nationwide personal jurisdiction. In Data Disc, we noted the jurisdictional issues presented in such a case, but “reserve[d] judgment on this issue until it [wa]s properly before us.” 557 F.2d at 1289 n. 8. Today, we join our sister circuits and adopt the doctrine of pendent personal jurisdiction. We note, in adopting this doctrine, as the Tenth Circuit has recently noted, that “every circuit court of appeals to address the question [has] upheld the application of pendent personal jurisdiction.” Botefuhr, 309 F.3d at 1273. Like the Tenth Circuit “we see no reason why, in certain situations, the assertion of pendent personal jurisdiction would be inappropriate.” Id. When a defendant must appear in a forum to defend against one claim, it is often reasonable to compel that defendant to" }, { "docid": "5957096", "title": "", "text": "was entitled to a significant inheritance from Soley-man and to conceal his interest in the Va-habzadeh family assets overseas.”) . Am. Cpt. ¶ 22(g). . See, e.g., Jazini, 148 F.3d at 184, 185; Barrett, 646 F.Supp. at 1350. . Simon, 86 F.Supp.2d at 120 (quoting Chrysler Capital Corp., 778 F.Supp. at 1268- 69, in turn quoting Dixon, 507 F.Supp. at 350); see also Grove Press, 649 F.2d at 122; Kreutter, 71 N.Y.2d at 467, 527 N.Y.S.2d at 199, 522 N.E.2d 40. . PL Mem. 42. . Id. . See, e.g., Grove Press, 649 F.2d at 122 (required showing is that alleged agent “acted in New York ... under some control by ... the nonresident principal” (emphasis added)). . N.Y. C.P.L.R. § 302(a), subd. (3)(i)-(ii) (McKinney 2001). . See supra text accompanying notes 58-59, 133-36. . PI. Mem. 45-46. . E.g., IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993) (holding that, when court has personal jurisdiction over defendant on federal claim by virtue of statute authorizing nationwide service of process, it may exercise pendent personal jurisdiction over related state law claims), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Hargrave v. Oki Nursery, Inc., 646 F.2d 716, 719-21 (2d Cir.1980) (holding that, when court has personal jurisdiction over defendant on state law claim, it may exercise personal jurisdiction on related state law claim); see also Robinson Eng’g Co. Pension Plan & Trust v. George 223 F.3d 445, 449 (7th Cir.2000) (holding that, when court has jurisdiction over foreign defendant on a federal securities claim, it may exercise pendent personal jurisdiction on RICO claim sharing a common nucleus of operative fact). . Without going into excessive detail, it is arguable that a state law claim over which a district court has subject matter jurisdiction only by reason of pendent party jurisdiction, as codified in 28 U.S.C. § 1367(a), is an insufficient anchor for assertion of pendent personal jurisdiction over a federal claim that otherwise could not be heard in the forum state. This view is suggested by the Second Circuit's rationale in Hargrave, in" }, { "docid": "18375448", "title": "", "text": "SEC v. Softpoint, Inc., No. 95 Civ. 2951 GEL, 2001 WL 43611, *2-5 (S.D.N.Y. Jan. 18, 2001)(‘'The federal securities laws authorize worldwide service of process, see 15 U.S.C. §§ 77v(a) & 78aa, and permit the exercise of personal jurisdiction to the limit of the Fifth Amendment's Due Process Clause.”)(extended discussion). \"Pendent personal jurisdiction exists [over a defendant regarding Plaintiffs’ state-law claims] 'where a federal statute authorizes nationwide service of process, and the federal and state claims 'derive from a common nucleus of operative facts.’' \" High River Ltd. Partnership v. Mylan Laboratories, Inc., 353 F.Supp.2d 487, 495 (M.D.Pa.2005), quoting IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993)(quoting in turn United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). \"Under these circumstances, a district court may exercise personal jurisdiction over the defendant with respect to related state law claims even though personal jurisdiction would not otherwise exist.” Id., citing Int’l Controls Corp. v. Vesco, 593 F.2d 166, 175 (2d Cir.1979). Here Plaintiffs state-law claims involve the same nucleus of facts as their federal law claims under the Exchange Act. In Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), the Supreme Court concluded that a California court had personal jurisdiction over two Florida journalists, who wrote in Florida a libelous article that was published in California about a California resident, based on the effects in California of their Florida-based conduct. That \"effects test” for establishing personal jurisdiction has been applied to the situation where there is a federal statute with nationwide service of process. \"Personal jurisdiction may be exercised over an out-of-state defendant who 'must know, or have good reason to know, that his conduct will have effects in the state seeking to assert jurisdiction over him.' ” Teachers’ Retirement System of Louisiana v. A.C.L.N. Ltd., No. 01 Civ. 11814(MP), 2003 WL 21058090, *8 (S.D.N.Y. May 12, 2003)(concluding that the court could assert jurisdiction over BDO International under a nationwide contacts analysis if BDO International knew or had good reason to know that its actions would" }, { "docid": "22275292", "title": "", "text": "this circuit, and the lack of direction from this court has produced substantial inconsistency for litigants. See BankAtlantic v. Coast to Coast Contractors, Inc., 947 F.Supp. 480, 488 & n. 6 (S.D.Fla.1996) (noting lack of consensus and lack of guidance from this circuit). In addition, the jurisdictional issue in this case was addressed by the district court and was fully litigated by both parties on appeal. The factual record thus is sufficiently developed for us to decide the jurisdictional issue without further fact-finding. Although we recognize that here the jurisdictional issue presents difficult questions, we address this issue because it is properly before us, because it is well presented, and because it has produced conflicting rulings within our circuit. The First American defendants nevertheless contend that we need not decide whether the Fifth Amendment Due Process Clause limits the reach of RICO’s nationwide service of process provision because, having failed to state a claim under RICO, Panama should not be allowed to utilize that statute’s nationwide service of process provision to establish jurisdiction over them. Because defendants failed to make this argument before the district court, we need not address it on appeal. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.1994). We consider this claim only to clarify the distinction between what a plaintiff asserting jurisdiction under a federal statute must allege to survive a defendant’s 12(b)(1) or 12(b)(2) motion on the one hand, and a defendant’s 12(b)(6) motion on the other. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1055-57 (2d Cir.1993) (comparing jurisdictional standards under 12(b)(1) and 12(b)(2) with 12(b)(6) standards), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). When a jurisdictional motion to dismiss depends, as in this case, on the assertion of a right created by a federal statute, the court should dismiss for lack of jurisdiction only if “the right claimed is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise devoid of merit as not to involve a federal controversy.’” Id. at 1055 (citations omitted); see also Garcia v. Copenhaver, Bell & Assocs.," }, { "docid": "22848077", "title": "", "text": "claim may also resolve state claims arising out of the same nucleus of operative fact, the Supreme Court developed the doctrine of pendent jurisdiction. See, e.g., United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Under that doctrine, when a claim authorized by federal law and by Article III of the Constitution is properly in a federal court, and that claim is so related to a state claim not independently subject to federal jurisdiction that the two may be considered “one constitutional case,” the federal court has pendent jurisdiction to adjudicate the state claim. Id. at 725, 86 S.Ct.at 1138. The Court articulated the necessary and proper relationship between the claims that they “must derive from a common nucleus of operative fact.” Id . But even so, pendent jurisdiction is a discretionary power which is exercised in furtherance of “judicial economy, convenience and fairness to the litigants.” Id. at 726, 86 S.Ct. at 1139. The doctrine has since been codified at 28 U.S.C. § 1367. We believe that similar considerations urge that we recognize pendent personal jurisdiction of a district court which has obtained personal jurisdiction over a defendant by reason of a federal claim to adjudicate state claims properly within the court’s subject matter jurisdiction, even though that state’s long-arm statute could not authorize service over the defendants with respect to the state claims. When a federal statute authorizes a federal district court to exercise personal jurisdiction over a defendant beyond the borders of the district and the defendant is effectively brought before the court, we can find little reason not to authorize the court to adjudicate a state claim properly within the court’s subject matter jurisdiction so long as the facts of the federal and state claims arise from a common nucleus of operative fact. The defendant will have to adjudicate the facts of the federal claim, and it could impose only a minimal burden to require the defendant to provide a defense on the factually-related state claim. We agree with the observation that judicial economy and convenience of the parties is" }, { "docid": "22502271", "title": "", "text": ", 564 U.S. 873, 884, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) (in assessing whether \"a defendant has followed a course of conduct directed at [a specific] society or economy,\" a court may determine that the defendant is \"subject to the jurisdiction of the courts of the United States but not of any particular State\"). Accordingly, Schwab has not made a prima facie showing of personal jurisdiction pursuant to the effects test. C. Pendent Personal Jurisdiction As a further alternative argument, Schwab contends that the district court, by virtue of having personal jurisdiction with respect to the Securities Exchange Act claims, should exercise pendent personal jurisdiction over the state-law claims. The doctrine of pendent personal jurisdiction provides that \"where a federal statute authorizes nationwide service of process, and the federal and state-law claims derive from a common nucleus of operative fact, the district court may assert personal jurisdiction over the parties to the related state-law claims even if personal jurisdiction is not otherwise available.\" IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir. 1993) (internal quotation marks and citation omitted). The district court declined to exercise pendent personal jurisdiction here \"on the ground that [Schwab's] federal claims [we]re dismissed at the outset of the litigation.\" LIBOR IV , 2015 WL 6243526, at *24. As discussed below, we disagree with the district court's determination that Schwab cannot state a claim under the Securities Exchange Act, and vacate dismissal of those claims in part with an opportunity to amend on remand. Because pendent personal jurisdiction is a discretionary doctrine, Hermann , 9 F.3d at 1059, and because Schwab needs to amend in order to state a plausible claim, the district court should consider the issue of pendent personal jurisdiction in the first instance. D. Forfeiture As a final effort, Schwab argues that Defendants forfeited their challenge to personal jurisdiction based on their failure to raise that issue in response to the complaints in Schwab's three 2011 actions. The district court rejected that argument, reasoning that \"the present Schwab case is not the same as the ones that were [previously]" }, { "docid": "22848076", "title": "", "text": "in volved. For example, if the claim is based on a federal statute authorizing nationwide service of process, personal jurisdiction may be asserted over a defendant anywhere in the country, whereas if the statute creating the federal claim does not provide for nationwide service of process, process may extend only to the boundaries of the state in which the district lies. This poses an infrequently presented question: If a case includes a claim brought under a federal statute authorizing a nationwide service of process and another claim under a statute or under state law for which nationwide service of process is not available, does the court have personal jurisdiction over the defendant to adjudicate the entire case? A somewhat analogous problem arose in the context of subject matter jurisdiction, which, of course, is quite distinct in principle from personal jurisdiction. See Compagnie des Bauxites, 456 U.S. at 701-05, 102 S.Ct. at 2103-06. Nevertheless, the analogy is useful. To resolve the problem of whether a federal court which is presented with the resolution of a federal claim may also resolve state claims arising out of the same nucleus of operative fact, the Supreme Court developed the doctrine of pendent jurisdiction. See, e.g., United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Under that doctrine, when a claim authorized by federal law and by Article III of the Constitution is properly in a federal court, and that claim is so related to a state claim not independently subject to federal jurisdiction that the two may be considered “one constitutional case,” the federal court has pendent jurisdiction to adjudicate the state claim. Id. at 725, 86 S.Ct.at 1138. The Court articulated the necessary and proper relationship between the claims that they “must derive from a common nucleus of operative fact.” Id . But even so, pendent jurisdiction is a discretionary power which is exercised in furtherance of “judicial economy, convenience and fairness to the litigants.” Id. at 726, 86 S.Ct. at 1139. The doctrine has since been codified at 28 U.S.C. § 1367. We believe that similar" }, { "docid": "5530565", "title": "", "text": "specific jurisdiction. Id. at 568; see also Aerogroup, 956 F.Supp. at 439. The second part of the due process personal jurisdiction test is determining the reasonableness of the exercise of jurisdiction. In undertaking this analysis, the Supi-eme Court has identified the following factors: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies. Metropolitan Life Ins., 84 F.3d at 568 (citing Asahi Metal Indus. Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113-14, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)); see also SEC v. Euro, 1999 WL 76801, at *3. Finally, pursuant to the doctrine of “pendent personal jurisdiction,” a district court can assert personal jurisdiction over parties on related state law claims where “a federal statute authorizes nationwide service of process, and the federal and state claims ‘derive from a common nucleus of operative fact’” even where personal jurisdiction is “not otherwise available.” IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). b. Application to K & W, FASB and EYB 2. Minimum Contacts Analysis K & W, FASB and EYB are alleged to have served as Fund administrators. K & W served as the Administrator beginning in September 1995, pursuant to an agreement signed by Berger and Jan Spiering, President of K & W and Managing Partner of EYB. FASB replaced K & W in February 1997, pursuant to an agreement signed by Berger and Derek Stapley, an EYB principal. These agreements provided that the Administrator would, among other things, maintain records of Fund transactions, disburse payments of the Fund’s costs and expenses, collect subscription payments, keep the Fund’s accounts and those records required by law, prepare monthly financial statements, file any necessary" }, { "docid": "433634", "title": "", "text": "Alan Wright & Arthur A. Miller, Federal Practice & Procedure § 1069.7 (3d ed.2002); Linda Sandstrom Simard, Exploring the Limits of Specific Personal Jurisdiction, 62 Ohio St. L.J. 1619, 1622-27 (2001). In essence, once a district court has personal jurisdiction over a defendant for one claim, it may “piggyback” onto that claim other claims over which it lacks independent personal jurisdiction, provided that all the claims arise from the same facts as the claim over which it has proper personal jurisdiction. Anderson v. Century Prods. Co., 943 F.Supp. 137, 145 (D.N.H.1996). The concept of pendent personal jurisdiction traces its origins to “federal question cases where state law claims were tacked onto federal causes of action under pendent [or supplemental] subject matter jurisdiction.” Id. at 144. Though originally a court-created concept, Congress later endorsed and codified the concept of supplemental subject matter jurisdiction. See 28 U.S.C. § 1367(a) (“[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”). By contrast, pendent personal jurisdiction is not explicitly authorized by statute and remains, at least in the view of most commentators, “a federal common law doctrine.” 4A Miller & Wright, supra, § 1069.7, at 227 (arguing that § 1367 cannot be read as authorizing pendent personal jurisdiction and explaining that the concept “must be properly understood to be a federal common law doctrine”). However, the majority of federal district courts and every circuit court of appeals to address the question have upheld the application of pendent personal jurisdiction, and we see no reason why, in certain situations, the assertion of pendent personal jurisdiction would be inappropriate. See Starlight Int'l Inc. v. Herlihy, 13 F.Supp.2d 1178, 1185 (D.Kan.1998) (explaining that “every circuit court confronting the issue has ... upheld the principle of pendent personal jurisdiction”); 4A Wright & Miller, supra, § 1069.7, at 228 (explaining that “most federal courts that have dealt with the subject” have adopted the pendent personal jurisdiction doctrine);" } ]

[ { "docid": "21457909", "title": "", "text": "Chesapeake, Hefner, and Seven Seas conspired to publish overstated reserve estimates in order to get around the unsecured notes’ limitation on secured debt, the holders of the unsecured notes, including the bondholders, were harmed by the issuance of the secured notes in a way that other unsecured creditors were not. . We note that Chesapeake does not argue that the bondholders, through their claims against Chesapeake, are improperly seeking to recover property of the estate that is merely under the control of Chesapeake (i.e., that any recovery against Chesapeake will really be a recovery of assets that belong to the estate). Rather, Chesapeake's position is that the claims themselves are property of the estate. . A typical fraudulent transfer claim is perhaps the paradigmatic example of a claim that is 'general” to all creditors in Schimmel-penninck’s sense of that term. It is normally the debtor’s creditors, and not the debtor itself, that have the right to assert a fraudulent transfer claim outside of bankruptcy, but in bankruptcy such a claim is usually brought by the trustee, for the benefit of all creditors. This is because the claim is really seeking to recover property of the estate. See In re Mort-gageAmerica, 714 F.2d at 1272." } ]

[ { "docid": "16531981", "title": "", "text": "set forth below and at oral argument, the Motions are hereby DENIED. Background On May 12, 2009, the Trustee filed a complaint (the “Complaint”) against the Picower Defendants alleging, inter alia, that they had received approximately $7.2 billion in withdrawals from BLMIS and knew or should have known that BLMIS was engaged in fraudulent activity. The Complaint sought recovery of the entire amount known at the time of filing to have been transferred from BLMIS to the Pi-eower Defendants throughout the history of the Picower Defendants’ accounts. Compl., ¶¶ 3, 4, 28, 57, 65-67. In February 2010, Adele Fox (“Fox”), a BLMIS customer and creditor of the estate, brought putative class actions in federal court in Florida (the “Florida Actions”) against the Picower Defendants. In that action, she was represented by Beasley Hauser Kramer & Galardi P.A., one of the firms which represents the Class Action Plaintiffs here as well. This Court enjoined the Florida Actions. See Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (“Fox I”), 429 B.R. 423, 437 (Bankr.S.D.N.Y.2010). Shortly thereafter, Fox appealed. On December 17, 2010, the BLMIS Trustee entered into an agreement memorializing the Picower Settlement (the “Settlement Agreement”), which entailed the forfeiture and repayment of approximately $7.2 billion, of which $5 billion was to be paid to the BLMIS Trustee. This represented the return of 100 percent of the net withdrawals received by the Picower Defendants over the lifetime of their investments with BLMIS. In exchange, the Settlement Agreement provides for (i) the release of the Picower Defendants from all claims that the Trustee brought or could have brought against them in connection with BLMIS, as well as (ii) the prevention of putative plaintiffs filing lawsuits that are duplicative or derivative of the claims that the Picower Defendants settled. Specifically, the Settlement Agreement includes the Picower Injunction, which enjoins: [A]ny BLMIS customer or creditor of the BLMIS estate who filed or could have filed a claim, anyone acting on their behalf or in concert or participation with them, or anyone whose claim in any way arises from or relates to BLMIS" }, { "docid": "17543543", "title": "", "text": "any such “particularized” actions aimed at BLMIS customers. They have not alleged, for instance, that the Picower defendants made any misrepresentations to appellants. Appellants respond that their respective complaints allege “that the Picower Defendants’ wrongful conduct ensured the fraud’s success by inducing [them] and other customers to invest (and remain invested) in BLMIS.” Fox Br. 25 (emphasis supplied); see also Marshall Br. 31. We do not think that the complaints can reasonably be read in this way. Allegations that the Picower defendants knowingly reaped the benefits of Madoffs scheme through fraudulent withdrawals, and effected such withdrawals through backdating trades and recording fictional profits, does not amount to a particularized claim that they directly participated in defrauding BLMIS customers by inducing them to invest. (3) Appellants’ final contention is that their complaints are particularized and non-derivative because of the nature of the relief sought. Whereas the Trustee sought the recovery of assets BLMIS transferred to the Picower defendants, appellants seek damages for (1) the loss on the reasonable return on their investments, (2) taxes paid on fictitious gains, and (3) monetary losses should they be sued by the Trustee for the recovery of their own withdrawals from BLMIS — none of which is recoverable in an avoidance action under the Bankruptcy Code. See 11 U.S.C. § 550(a) (“[T]he trustee may recover, for the benefit of the estate, the property transferred, or ... the value of such property....”). Yet appellants’ claimed damages, also suffered by all BLMIS customers, still remain mere secondary harms flowing from the Picower defendants’ fraudulent withdrawals and the resulting depletion of BLMIS funds. Cf. Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, 491 B.R. 27, 36 (S.D.N.Y.2013) (“[Investors’] actions relate to [investment manager’s] fraud on his own investors — not Madoffs fraud at the expense of his customers — and therefore are independent claims based on separate facts, theories, and duties than the Trustee’s fraudulent transfer claims against [investment manager].”). We conclude, therefore, that appellants purported conspiracy-based claims against the Picower defendants are “derivative” of those asserted by the Trustee in his fraudulent conveyance action," }, { "docid": "17543535", "title": "", "text": "to disclose its knowledge of asbestos hazards.” 517 F.3d at 58 (alteration omitted). In the course of the proceedings, the bankruptcy court entered a “Clarifying Order” specifying that these lawsuits were barred by the prior injunction. Id. at 59. We held, however, that such claims were non-derivative. Whereas the Manville I plaintiffs sought “indemnification or compensation for the tortious wrongs of Manville,” the Manville III plaintiffs sought “to recover directly from Travelers ... for [Travelers’] own alleged misconduct,” namely, violations under state law of “an independent legal duty in its dealing with plaintiffs.” Id. at 63; see also Travelers Indem. Co. v. Bailey, 557 U.S. 137, 143 & n. 2, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009). We recently had occasion to apply the distinction drawn in Manville III in another case arising out of the SIPA-liquidation of BLMIS. In JPMorgan Chase, the Trustee sued various financial institutions, alleging that they had aided and abetted Madoff s fraud. 721 F.3d at 59. In holding that the Trustee lacked standing to bring such claims on behalf of BLMIS customers, we noted that the claims were not derivative: they were brought “on behalf of thousands of customers against third-party financial institutions for their handling of individual investments made on various dates in varying amounts.” Id. at 71. In the following section, we explain why the Florida actions are predicated upon secondary harms flowing from BLMIS as in Manville I — rather than upon a particularized injury traceable to the Picower defendants’ conduct — as in Manville III and JPMorgan Chase. B (1) The Trustee’s complaint in this case asserts fraudulent conveyance claims against the Picower defendants under the Bankruptcy Code and New York law. It alleges that the Picower defendants withdrew billions of dollars from their BLMIS aecounts-funds belonging to BLMIS’s defrauded customers — and, because the Pi-cower defendants knew or should have known that they were profiting from such fraud, the withdrawals were thus avoidable. Although state law typically provides creditors with the right to assert fraudulent conveyance claims, [a] typical fraudulent transfer claim is perhaps the paradigmatic example of a" }, { "docid": "17543538", "title": "", "text": "BLMIS’ trading records, see id. at 722, 1349, 2584; and (3) that the Picower defendants knew of fictitious and backdated trading activity in their accounts, see id. at 724, 1359, 2593. See also Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, 477 B.R. 351, 358-78 (Bankr.S.D.N.Y.2012) (chart comparing allegations in Trustee’s complaint with those in the Florida complaints, appended as Exhibit A to the opinion of the Bankruptcy Court). In fact, the Florida complaints cite the factual allegations contained in the Trustee’s complaint in New York’s bankruptcy court multiples times in support of their claims. Appellants rightly note that overlapping allegations may give rise to a multiplicity of claims. As the Fifth Circuit has explained, “there is nothing illogical or contradictory about saying that [a third-party defendant] might have inflicted direct injuries on both the [estate’s creditors] and [the debtor estate] during the course of dealings that form the backdrop of both sets of claims.” In re Seven Seas, 522 F.3d at 587; see, e.g., Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1101 (2d Cir.1988) (finding that a creditor had “standing to bring a RICO claim, regardless of the fact that a bankrupt [debtor] might also have suffered an identical injury” because “[creditor] does not seek recovery for injuries suffered by [debtor] but for injuries it suffered directly”). We are nonetheless wary of placing too much significance on the labels appellants attach to their complaints, lest they circumvent the Net Equity Decision by “pleading around” the automatic stay and permanent injunction. Cf., e.g., Cabin v. Gov’t of Republic of Ghana, 165 F.3d 193, 200 (2d Cir.1999) (“In an effort to plead around the proviso [preserving immunity for torts of misrepresentation] the complaint is cast in terms of the intentional infliction of emotional distress. However cast, the wrongful acts alleged to have caused the injury are misrepresentations .... ”). The only allegations of the Picower defendants’ direct involvement in the Ponzi scheme are that they prepared false documentation, recorded and withdrew fictional profits, and filed false statements in connection with their tax returns. See Joint App’x 1366" }, { "docid": "17543540", "title": "", "text": "(Marshall Complaint); id. at 2600-01 (Fox Complaint). Appellants characterize these allegations as “the Picower Defendants workfing] hand-in-glove with Madoff and BLMIS to perpetrate the Ponzi scheme.” Fox Br. 24; see also Marshall Br. 31. But, as Judge Richard J. Sullivan recently explained in a case predicated upon the same alleged conspiratorial acts, [t]he ... Complaints plead nothing more than that the Picower Defendants traded on their own BLMIS accounts, knowing that such “trades” were fraudulent, and then withdrew the “proceeds” of such falsified transactions from BLMIS. All the “book entries” and “fraudulent trading records” that the Complaints allege refer to nothing more than the fictitious records BLMIS made, for the Pi-cower Defendants, to document these fictitious transactions. In other words, the Complaints plead nothing more than that the Picower Defendants fraudulently withdrew money from BLMIS. A & G Goldman Partnership v. Picard (In re Bernard L. Madoff Inv. Sec., LLC), No. 12 CIV. 6109 RJS, 2013 WL 5511027, at *7 (S.D.N.Y. Sept. 30, 2013) (citation omitted). (2) The case law upon which appellants rely to argue that they have alleged “particularized” injuries directly traceable to the Picower defendants is inapposite. Appellant Marshall draws our attention to Cumberland Oil Corp. v. Thropp, 791 F.2d 1037 (2d Cir.1986), in which we held that a plaintiffs cause of action for conspiracy to defraud “was not merely an artful replead-ing of [fraudulent conveyance] claims.” Id. at 1043. But in Cumberland Oil, the plaintiff did not assert merely the “right ... to recover misappropriated assets,” but “alleged with particularity that misrepresentations of facts [about debtor’s financial health] were made by [defendant] in furtherance of a conspiracy to defraud.” Id. at 1042-43. The complaints here, however, do not allege that the Picower defendants made any such misrepresentations to BLMIS customers. Rather, as in Man-ville I, appellants’ alleged injuries are inseparable from, and predicated upon, a legal injury to the estate namely, the Pi-cower defendants’ fraudulent withdrawals from their BLMIS accounts of what turned out be other BLMIS customers’ funds. Appellant Fox relies on our decision in Hirsch v. Arthur Andersen & Co., and the Fifth Circuit’s" }, { "docid": "17543542", "title": "", "text": "in In re Seven Seas, to argue that her claims allege “particularized” injuries traceable to the Picower defendants. In Hirsch, the Trustee sought to sue Arthur Anderson & Co. for helping perpetuate the debtors’ Ponzi scheme by distributing misleading private placement memoranda to investors. 72 F.3d at 1087-89. And in In re Seven Seas, bondholders alleged that a secured creditor had knowingly used misleading financial information to induce them to purchase unsecured notes issued by the debtor. 522 F.3d at 578-81. In both cases, the Courts held that the claims alleged an injury that was direct, and not merely derivative, of an injury to the debtor. See Hirsch, 72 F.3d at 1094 (holding that the claims “are the property of those investors, and may be asserted only by them and to the exclusion of [the Trustee]”); In re Seven Seas, 522 F.3d at 586 (holding that the claims alleged “a direct injury ... that was independent of any injury to [the debtor]”). As just noted, however, appellants have not alleged that the Picower defendants took any such “particularized” actions aimed at BLMIS customers. They have not alleged, for instance, that the Picower defendants made any misrepresentations to appellants. Appellants respond that their respective complaints allege “that the Picower Defendants’ wrongful conduct ensured the fraud’s success by inducing [them] and other customers to invest (and remain invested) in BLMIS.” Fox Br. 25 (emphasis supplied); see also Marshall Br. 31. We do not think that the complaints can reasonably be read in this way. Allegations that the Picower defendants knowingly reaped the benefits of Madoffs scheme through fraudulent withdrawals, and effected such withdrawals through backdating trades and recording fictional profits, does not amount to a particularized claim that they directly participated in defrauding BLMIS customers by inducing them to invest. (3) Appellants’ final contention is that their complaints are particularized and non-derivative because of the nature of the relief sought. Whereas the Trustee sought the recovery of assets BLMIS transferred to the Picower defendants, appellants seek damages for (1) the loss on the reasonable return on their investments, (2) taxes paid on" }, { "docid": "17543549", "title": "", "text": "heard in bankruptcy when the allegedly favored creditor has filed a claim, because then the ensuing preference action by the trustee become[s] integral to the restructuring of the debtor-creditor relationship.” (internal quotations omitted; brackets in original)). In this case, unlike in Granfinanciera, the Picower defendants filed a proof of claim against the BLMIS estate. In order to rule on that claim, the Bankruptcy Court was required to first resolve the fraudulent transfer issue. Cf. id. at 2617 (noting that the “factual and legal determinations” the bankruptcy court was required to make “were not disposed of in passing on objections to [creditor’s] proof of claim” (internal quotations omitted)). Accordingly, the Bankruptcy Court’s authority under the Bankruptcy Code to approve the settlement between the Trustee and the Picower defendants and to permanently enjoin appellants’ disguised fraudulent transfer claims does not run afoul of Article III of the United States Constitution. CONCLUSION To summarize: (1)Allegations in the Florida actions of a conspiracy between Madoff and the Picower defendants echo those made by the Trustee in his New York action for the recovery of fraudulent transfers. Although common facts can give rise to multiple claims, the Florida actions impermis-sibly attempt to “plead around” the Bankruptcy Court’s injunction barring all “derivative” claims in that they allege nothing more than steps necessary to effect the Picower defendants’ fraudulent withdrawals of money from BLMIS. (2) Appellants have not alleged “particularized” injuries directly traceable to the Picower defendants. The Picower defendants are alleged to have knowingly reaped the benefits of Madoff s scheme through fraudulent withdrawals, but they are not alleged to have made any misrepresentations to induce investments in BLMIS or to have taken any other actions that could reasonably be understood as aimed at BLMIS customers. (3) Although the Florida actions assert claims for damages that are not recoverable in an avoidance action under the Bankruptcy Code, appellants’ claims are still “derivative” of the Trustee’s: they are predicated upon mere secondary harms flowing from the Picower defendants’ fraudulent withdrawals and the resulting depletion of BLMIS funds. (4) The Bankruptcy Court did not run afoul of Article" }, { "docid": "16531991", "title": "", "text": "at BLMIS who, therefore, owed a duty to the Plaintiffs under relevant securities law to prevent their purchasing fraudulent securities. In turn, the Plaintiffs argue their claims are not dupli-cative since (i) their injuries arose when they purchased securities worth less than the amount the Plaintiffs paid to BLMIS, while the Trustee pursued fraudulent transfers from BLMIS to the Picower Defendants, and (ii) this overpayment necessarily precedes BLMIS’s payments to the Picower Defendants. These arguments, however, are unpersuasive. The Class Action Plaintiffs’ claim is inadequately particularized, as the harms alleged are limited to “general direction and control and action to the detriment of all [BLMIS’s] creditors.” Cabrini, 2012 WL 2254386, at *8. Furthermore, all of these arguments, put the cart before the horse: but for the existence of the Ponzi scheme and the Picower Defendants’ withdrawals therefrom, the Plaintiffs would not have “overpaid” in the first instance. Indeed, each of the Plaintiffs’ arguments is based on a common harm: “the Picower defendants withdrawing funds from BLMIS to which they were not entitled.... ” Fox II, 848 F.Supp.2d at 480; see also Fox I, 429 B.R. at 432 (“Whether sounding in bankruptcy, state law or common law, the claims asserted in the Florida Actions seek to redress a harm common to all BLMIS customer claimants and, consistent with the purposes of the automatic stay, belong exclusively to the Trustee.”). Therefore, as was the case in the Fox II decision, “the very essence of the allegations against the Picower defendants is that they paid themselves out of assets that comprised other customers’ accounts.... ” Id. at 480 (noting that “like Picard’s New York Action, [the Plaintiffs allegations] are based upon the same conduct by the Picower Defendants: involvement in the Madoff Ponzi scheme, and the transfer of billions of dollars in BLMIS-held customer funds to the Picower defendants”). 3. Re-litigation of Net Equity Decision Finally, this appears to be yet another attempt by the same counsel to re-litigate this Court’s Net Equity Decision. See SIPC v. BLMIS, 424 B.R. 122 (Bankr. S.D.N.Y.2010) aff'd, In re Bernard L. Ma-doff Inv. Sec. LLC, 654" }, { "docid": "4931540", "title": "", "text": "(see, e.g., Fox Complaint ¶ 3), and cite to the Trustee’s complaint throughout. (See, e.g., Fox Complaint ¶¶ 15-28, 30-31, 37-38, 43, 46, 55, 59-60, 63.) The Florida Actions, like Picard’s New York Action, are based upon the same conduct by the Picower Defendants: involvement in the Madoff Ponzi scheme, and the transfer of billions of dollars in BLMIS-held customer funds to the Picower defendants. The Florida complaints contain no additional allegations of acts by the Picower defendants that were directed toward the Appellants specifically, or any duty owed specifically to the Appellants by the Picower defendants. Put bluntly, the wrongs pleaded in the Florida Actions and in the Trustee’s action are the same. Cf. In re Granite Partners, L.P., 194 B.R. 318, 325 (Bankr.S.D.N.Y.1996) (“To determine [whether a trustee has] standing [to assert a claim], the court must look to the nature of the wrongs alleged in the complaint without regard to the plaintiffs designation, and the nature of the injury for which relief is sought .... ” (citations omitted)); Kramer v. W. Pac. Indus., Inc. 546 A.2d 348, 352 (Del.1988) (cited by Granite Partners, 194 B.R. at 325) (“In determining the nature of the wrong alleged, a court must look to the body of the complaint, not to the plaintiffs designation or stated intention.” (internal quotation marks omitted)) (shareholder derivative suit context). The alleged wrongful acts harmed every BLMIS investor (and BLMIS itself) in the same way: by withdrawing billions of dollars in customer funds from BLMIS and thus substantially diminishing the assets available to BLMIS to pay its customers and creditors, and to continue to function. Indeed, the very essence of the allegations against the Picower defendants is that they paid themselves out of assets that comprised other customers’ accounts, thereby diminishing the value of BLMIS. (See, e.g., Fox Complaint ¶ 73 (“Defendants participated in and profited from the fraud on other BLMIS customers, and ... converted the cash (there were no securities) of other BLMIS account holders to pay themselves these fictitious profits.”).) There is no allegation that the Picower defendants owed any duty directly to" }, { "docid": "17543525", "title": "", "text": "Inv. Sec. LLC), 429 B.R. 423, 430, 433-37 (Bankr.S.D.N.Y.2010). C On December 17, 2010, the Trustee and the Picower defendants entered into a settlement agreement (the “Settlement Agreement”), whereby the Picower defendants agreed to return $5 billion to the BLMIS estate, out of the proceeds of a $7.2 billion civil forfeiture they simultaneously agreed to make to the U.S. Attorney’s Office. In return, the Trustee agreed to release any other claims he might have had against the Picower defendants relating to BLMIS. The Trustee further agreed as part of the settlement to seek a narrowly-tailored permanent injunction from the Bankruptcy Court barring any BLMIS customer from suing the Picower defendants for certain claims arising from or related to Madoffs Ponzi scheme. On December 17, 2010, the Trustee filed his motion for approval of the Settlement Agreement and for a permanent injunction pursuant to Rules 2002 and 9019 of the Bankruptcy Rules and section 105(a) of the Bankruptcy Code. SIPC and the government filed a statement in support of the Trustee’s motion. On January 13, 2011, the Bankruptcy Court approved the Settlement Agreement, and issued the permanent injunction as follows: [A]ny BLMIS customer or creditor of the BLMIS estate who filed or could have filed a claim in the liquidation, anyone acting on their behalf or in con cert or participation with them, or anyone whose claim in any way arises from or is related to BLMIS or the Madoff Ponzi scheme, is hereby permanently enjoined from asserting any claim against the Picower BLMIS Accounts or the Picower Releasees that is duplica-tive or derivative of the claims brought by the Trustee, or which could have been brought by the Trustee against the Pi-cower BLMIS Accounts or the Picower Releasees.... Special App’x 31 (emphasis supplied). At the January 13, 2011 motion hearing, the Bankruptcy Court made clear that, under its interpretation of the injunction, the claims in appellants’ Florida actions were barred as duplicative and derivative of those asserted in the Trustee’s complaint. See Joint App’x 309 (Bankruptcy Court stating that, “[Fox and Marshall’s claims] are subsumed in the prior injunctive paragraph”)." }, { "docid": "20562277", "title": "", "text": "their actions did not affect the estate. Id. at 65, 68. In JPMorgan, the Second Circuit was faced with the question of whether the SIPA liquidation trustee for the estate of Bernard L. Madoff Investment Securities LLC (“BLMIS”) had standing to bring claims against various financial institutions to recover BLMIS customer property for aiding and abetting Madoff s fraud by providing financial services while ignoring ob-' vious warning signs of the fraud. See 721 F.3d at 64-66. The Court again concluded that such claims were not derivative because they were asserted “on behalf of thousands of customers against third-party financial institutions for their independent handling of individual investments made on various dates in varying amounts.” Id. at 71. The claims therefore belonged to those individual customers. In Madoff, a more recent case combining aspects of Manville III and JPMorgan, the Second Circuit considered whether a creditor’s claims against a non-debtor were properly barred as derivative of earlier claims asserted and settled by the BLMIS trustee. There, while settlement talks regarding an adversary proceeding alleging fraudulent transfer, avoidable preferences, and turnover that the trustee asserted against the estate of Jeffrey Picower (one of Madoffs alleged co-conspirators) and related defendants were ongoing, BLMIS customers filed a putative class action against the Picower defendants in the Southern District of Florida alleging claims for, inter alia, civil conspiracy and conversion. Madoff, 740 F.3d at 85. The trustee and the Picower defendants subsequently settled the adversary proceeding, pursuant to which the bankruptcy court issued a permanent injunction that barred any BLMIS customer or creditor from asserting any claim against the Picower de fendants “duplicative or derivative of the claims brought by the Trustee, or which could have been brought by the Trustee.” Id. at 86-87. In contrast to the result in Manville III, the Second Circuit in Madoff ruled that although the plaintiffs alleged different causes of action than the trustee, the injunction nevertheless barred their claims. Id. at 91. The Court reasoned that the plaintiffs’ claims derived from the estate because they did not allege that the Picower defendants took any particularized actions aimed" }, { "docid": "17543541", "title": "", "text": "argue that they have alleged “particularized” injuries directly traceable to the Picower defendants is inapposite. Appellant Marshall draws our attention to Cumberland Oil Corp. v. Thropp, 791 F.2d 1037 (2d Cir.1986), in which we held that a plaintiffs cause of action for conspiracy to defraud “was not merely an artful replead-ing of [fraudulent conveyance] claims.” Id. at 1043. But in Cumberland Oil, the plaintiff did not assert merely the “right ... to recover misappropriated assets,” but “alleged with particularity that misrepresentations of facts [about debtor’s financial health] were made by [defendant] in furtherance of a conspiracy to defraud.” Id. at 1042-43. The complaints here, however, do not allege that the Picower defendants made any such misrepresentations to BLMIS customers. Rather, as in Man-ville I, appellants’ alleged injuries are inseparable from, and predicated upon, a legal injury to the estate namely, the Pi-cower defendants’ fraudulent withdrawals from their BLMIS accounts of what turned out be other BLMIS customers’ funds. Appellant Fox relies on our decision in Hirsch v. Arthur Andersen & Co., and the Fifth Circuit’s in In re Seven Seas, to argue that her claims allege “particularized” injuries traceable to the Picower defendants. In Hirsch, the Trustee sought to sue Arthur Anderson & Co. for helping perpetuate the debtors’ Ponzi scheme by distributing misleading private placement memoranda to investors. 72 F.3d at 1087-89. And in In re Seven Seas, bondholders alleged that a secured creditor had knowingly used misleading financial information to induce them to purchase unsecured notes issued by the debtor. 522 F.3d at 578-81. In both cases, the Courts held that the claims alleged an injury that was direct, and not merely derivative, of an injury to the debtor. See Hirsch, 72 F.3d at 1094 (holding that the claims “are the property of those investors, and may be asserted only by them and to the exclusion of [the Trustee]”); In re Seven Seas, 522 F.3d at 586 (holding that the claims alleged “a direct injury ... that was independent of any injury to [the debtor]”). As just noted, however, appellants have not alleged that the Picower defendants took" }, { "docid": "17543548", "title": "", "text": "As the Court explained in Granfinanciera: There can be little doubt that fraudulent conveyance actions by bankruptcy trustees ... are quintessential^ suits at common law that more nearly resemble state-law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res. They therefore appear matters of private rather than public right. Granfinanciera, 492 U.S. at 56, 109 S.Ct. 2782 (citation omitted). Therefore, according to Marshall, the Bankruptcy Court did not have authority to enter final judgment on the Trustee’s fraudulent transfer claims against the Picower defendants, much less to issue the accompanying order enjoining all duplicative and derivative actions. Yet Granfinanciera held that a fraudulent conveyance claim is a matter of private right when asserted against “a person who has not submitted a claim against a bankruptcy estate.” Id. at 36, 109 S.Ct. 2782 (emphasis supplied). The Court reaffirmed this limitation of Granfi-nanciera’s holding in Stem. See Stern, 131 S.Ct. at 2617 (“[A] preferential transfer claim can be heard in bankruptcy when the allegedly favored creditor has filed a claim, because then the ensuing preference action by the trustee become[s] integral to the restructuring of the debtor-creditor relationship.” (internal quotations omitted; brackets in original)). In this case, unlike in Granfinanciera, the Picower defendants filed a proof of claim against the BLMIS estate. In order to rule on that claim, the Bankruptcy Court was required to first resolve the fraudulent transfer issue. Cf. id. at 2617 (noting that the “factual and legal determinations” the bankruptcy court was required to make “were not disposed of in passing on objections to [creditor’s] proof of claim” (internal quotations omitted)). Accordingly, the Bankruptcy Court’s authority under the Bankruptcy Code to approve the settlement between the Trustee and the Picower defendants and to permanently enjoin appellants’ disguised fraudulent transfer claims does not run afoul of Article III of the United States Constitution. CONCLUSION To summarize: (1)Allegations in the Florida actions of a conspiracy between Madoff and the Picower defendants echo those made by the Trustee in his New York" }, { "docid": "17543536", "title": "", "text": "of BLMIS customers, we noted that the claims were not derivative: they were brought “on behalf of thousands of customers against third-party financial institutions for their handling of individual investments made on various dates in varying amounts.” Id. at 71. In the following section, we explain why the Florida actions are predicated upon secondary harms flowing from BLMIS as in Manville I — rather than upon a particularized injury traceable to the Picower defendants’ conduct — as in Manville III and JPMorgan Chase. B (1) The Trustee’s complaint in this case asserts fraudulent conveyance claims against the Picower defendants under the Bankruptcy Code and New York law. It alleges that the Picower defendants withdrew billions of dollars from their BLMIS aecounts-funds belonging to BLMIS’s defrauded customers — and, because the Pi-cower defendants knew or should have known that they were profiting from such fraud, the withdrawals were thus avoidable. Although state law typically provides creditors with the right to assert fraudulent conveyance claims, [a] typical fraudulent transfer claim is perhaps the paradigmatic example of a claim that is “general” to all creditors .... It is normally the debtor’s creditors, and not the debtor itself, that have the right to assert a fraudulent transfer claim outside of bankruptcy, but in bankruptcy such a claim is usually brought by the trustee, for the benefit of all creditors. This is because the claim is really seeking to recover property of the estate. Highland Capital Mgmt. LP v. Chesapeake Energy Corp. (In re Seven Seas Petroleum, Inc.), 522 F.3d 575, 589 n. 9 (5th Cir.2008). Appellants Marshall and Fox argue that their complaints assert non-derivative conspiracy-based claims predicated upon the Picower defendants’ direct participation in the theft of BLMIS customers’ funds. However, the allegations in appellants’ respective Florida complaints echo those made by the Trustee. With regard to the Picower defendants’ knowledge of the fraud, each complaint alleges: (1) that the Picower defendants’ account supposedly achieved implausibly high rates of return, see Joint App’x 707, 1358, 2584; (2) that, unlike other investors, the Picower defendants were sufficiently close to Ma-doff to be privy to" }, { "docid": "5734896", "title": "", "text": "the debtor, then the cause of action could not have been asserted by the debtor as of the commencement of the case, and thus is not property of the estate.” Schertz-Cibolo-Universal City, Indep. Sch. Dist. v. Wright (In re Educators Group Health Trust), 25 F.3d 1281, 1284 (5th Cir.1994) (citations omitted). A trustee’s exclusive ability to bring causes of action that generally affect all creditors fosters the goals of the automatic stay by promoting orderly resolution of claims and preventing single creditors from achieving preferential recoveries. The Florida Plaintiffs are not seeking to redress a particularized injury or alleging harm caused directly to them by the Pi-cower Defendants. In substance, the Florida Actions seek to redress the depletion of the BLMIS customer property fund, a harm that derivatively injures all customer claimants in the BLMIS liquidation. In no way were the Florida Plaintiffs in privity with the Picower Defendants; rather, they were directly invested with BLMIS. Nowhere do the Florida Plaintiffs contend that the Picower Defen dants owed a separate duty, or caused a separate harm, particularly to them: as admitted in the Florida Complaints, the “action arises from [the Picower] Defendants’ participation in the now admitted massive Ponzi scheme” generally. Florida Compls. at ¶ 1. The Florida Complaints allege that the Picower Defendants “knew or should have known that the funds used to pay [their] fictional profits could have only come from the accounts of other BLMIS customers,” they “converted the cash in other innocent BLMIS customer accounts for their own personal benefit,” and they “agreed with Madoff ... to unlawfully divert and convert the cash of other innocent BLMIS account holders, including Plaintiff and the class members, for the[ir] benefit.” Florida Compls. at ¶¶ 9, 79 (emphasis added). Whether sounding in bankruptcy, state law or common law, the claims asserted in the Florida Actions seek to redress a harm common to all BLMIS customer claimants and, consistent with the purposes of the automatic stay, belong exclusively to the Trustee. Indeed, the Trustee’s pending adversary proceeding against the Picower Defendants alleges, inter alia, that they received fraudulent transfers from" }, { "docid": "17543544", "title": "", "text": "fictitious gains, and (3) monetary losses should they be sued by the Trustee for the recovery of their own withdrawals from BLMIS — none of which is recoverable in an avoidance action under the Bankruptcy Code. See 11 U.S.C. § 550(a) (“[T]he trustee may recover, for the benefit of the estate, the property transferred, or ... the value of such property....”). Yet appellants’ claimed damages, also suffered by all BLMIS customers, still remain mere secondary harms flowing from the Picower defendants’ fraudulent withdrawals and the resulting depletion of BLMIS funds. Cf. Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, 491 B.R. 27, 36 (S.D.N.Y.2013) (“[Investors’] actions relate to [investment manager’s] fraud on his own investors — not Madoffs fraud at the expense of his customers — and therefore are independent claims based on separate facts, theories, and duties than the Trustee’s fraudulent transfer claims against [investment manager].”). We conclude, therefore, that appellants purported conspiracy-based claims against the Picower defendants are “derivative” of those asserted by the Trustee in his fraudulent conveyance action, and, therefore, the Bankruptcy Court was authorized to enjoin those actions. We note that we affirm without prejudice to appellants seeking leave to amend their complaints. There is conceivably some particularized conspiracy claim appellants could assert that would not be derivative of those asserted by the Trustee. That question, however, is not properly before us, and is a question in the first instance for the United States District Court for the Southern District of Florida. C We turn now to whether the Bankruptcy Court, an Article I court, exceeded the jurisdictional limits established by Article III of the United States Constitution. Both appellant Fox and Marshall’s arguments in this regard are premised upon the Supreme Court’s recent holding in Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). In Stem, a widow filed a state law counterclaim in her Chapter 11 bankruptcy case to recover for her stepson’s alleged tortious interference with an inheritance gift she expected from her deceased husband. Id. at 2601. The Court observed that the Constitution generally" }, { "docid": "17543539", "title": "", "text": "1096, 1101 (2d Cir.1988) (finding that a creditor had “standing to bring a RICO claim, regardless of the fact that a bankrupt [debtor] might also have suffered an identical injury” because “[creditor] does not seek recovery for injuries suffered by [debtor] but for injuries it suffered directly”). We are nonetheless wary of placing too much significance on the labels appellants attach to their complaints, lest they circumvent the Net Equity Decision by “pleading around” the automatic stay and permanent injunction. Cf., e.g., Cabin v. Gov’t of Republic of Ghana, 165 F.3d 193, 200 (2d Cir.1999) (“In an effort to plead around the proviso [preserving immunity for torts of misrepresentation] the complaint is cast in terms of the intentional infliction of emotional distress. However cast, the wrongful acts alleged to have caused the injury are misrepresentations .... ”). The only allegations of the Picower defendants’ direct involvement in the Ponzi scheme are that they prepared false documentation, recorded and withdrew fictional profits, and filed false statements in connection with their tax returns. See Joint App’x 1366 (Marshall Complaint); id. at 2600-01 (Fox Complaint). Appellants characterize these allegations as “the Picower Defendants workfing] hand-in-glove with Madoff and BLMIS to perpetrate the Ponzi scheme.” Fox Br. 24; see also Marshall Br. 31. But, as Judge Richard J. Sullivan recently explained in a case predicated upon the same alleged conspiratorial acts, [t]he ... Complaints plead nothing more than that the Picower Defendants traded on their own BLMIS accounts, knowing that such “trades” were fraudulent, and then withdrew the “proceeds” of such falsified transactions from BLMIS. All the “book entries” and “fraudulent trading records” that the Complaints allege refer to nothing more than the fictitious records BLMIS made, for the Pi-cower Defendants, to document these fictitious transactions. In other words, the Complaints plead nothing more than that the Picower Defendants fraudulently withdrew money from BLMIS. A & G Goldman Partnership v. Picard (In re Bernard L. Madoff Inv. Sec., LLC), No. 12 CIV. 6109 RJS, 2013 WL 5511027, at *7 (S.D.N.Y. Sept. 30, 2013) (citation omitted). (2) The case law upon which appellants rely to" }, { "docid": "5734897", "title": "", "text": "harm, particularly to them: as admitted in the Florida Complaints, the “action arises from [the Picower] Defendants’ participation in the now admitted massive Ponzi scheme” generally. Florida Compls. at ¶ 1. The Florida Complaints allege that the Picower Defendants “knew or should have known that the funds used to pay [their] fictional profits could have only come from the accounts of other BLMIS customers,” they “converted the cash in other innocent BLMIS customer accounts for their own personal benefit,” and they “agreed with Madoff ... to unlawfully divert and convert the cash of other innocent BLMIS account holders, including Plaintiff and the class members, for the[ir] benefit.” Florida Compls. at ¶¶ 9, 79 (emphasis added). Whether sounding in bankruptcy, state law or common law, the claims asserted in the Florida Actions seek to redress a harm common to all BLMIS customer claimants and, consistent with the purposes of the automatic stay, belong exclusively to the Trustee. Indeed, the Trustee’s pending adversary proceeding against the Picower Defendants alleges, inter alia, that they received fraudulent transfers from BLMIS that are recoverable for the benefit of all customers. See Trustee’s Compl. at ¶ 5, Picard v. Picower, Adv. Proc. No. 09-01197(BRL), May 12, 2009, at Docket No. 1. Thus, allowing the Florida Actions to proceed against the Picower Defendants for their own independent recoveries on these facts would effectively “convert the bankruptcy proceeding into a race to the courthouse,” and “derail the bankruptcy proceedings.” Fisher v. Apostolou, 155 F.3d 876, 883 (7th Cir.1998). Relying on Highland Capital Mgmt. LP v. Chesapeake Energy Corp. (In re Seven Seas Petroleum, Inc.), 522 F.3d 575 (5th Cir.2008), the Florida Plaintiffs argue unconvincingly that them claims are not property of the estate. In Seven Seas, investors purchased unsecured notes (the “Bondholders”) issued by the debtor, purportedly relying upon certain estimates provided by Ryder Scott Co. (the “Ryder Report”) in making such purchases. Id. at 578. Other investors, including Chesapeake Energy Corp. (“Chesapeake”), purchased senior secured notes that were also issued by the debtor prepetition. Id. at 578-79. During the case, the chapter 11 trustee brought an adversary" }, { "docid": "16531980", "title": "", "text": "BENCH MEMORANDUM DECISION AND ORDER DENYING MOTION OF PICOWER CLASS ACTION PLAINTIFFS FOR A DETERMINATION THAT THE COMMENCEMENT OF SECURITIES CLASS ACTION LAWSUITS AGAINST NON-DEBTOR PARTIES IS NOT PROHIBITED BY A PERMANENT INJUNCTION ISSUED BY THIS COURT OR VIOLATIVE OF THE AUTOMATIC STAY BURTON R. LIFLAND, Bankruptcy Judge. Before the Court are the motions of A & G Goldman Partnership (“A & G Goldman”) and Pamela Goldman (together, the “Class Action Plaintiffs” or “Mov-ants”) , dated December 13, 2011 (the “Motions”). The Motions seek a determination that neither the injunction (the “Pi-cower Injunction”) issued by this Court as part of its order (the “Settlement Order”), dated January 13, 2011, nor the automatic stay provisions of section 362 of title 11 of the United States Code (the “Code”), bar, prohibit, restrict or prevent Class Action Plaintiffs from commencing and prosecuting a securities law class action (the “Class Action”) against the estate of Jeffry Pi- cower and related defendants (the “Picower Defendants”) in the United States District Court for the Southern District of Florida. For the reasons set forth below and at oral argument, the Motions are hereby DENIED. Background On May 12, 2009, the Trustee filed a complaint (the “Complaint”) against the Picower Defendants alleging, inter alia, that they had received approximately $7.2 billion in withdrawals from BLMIS and knew or should have known that BLMIS was engaged in fraudulent activity. The Complaint sought recovery of the entire amount known at the time of filing to have been transferred from BLMIS to the Pi-eower Defendants throughout the history of the Picower Defendants’ accounts. Compl., ¶¶ 3, 4, 28, 57, 65-67. In February 2010, Adele Fox (“Fox”), a BLMIS customer and creditor of the estate, brought putative class actions in federal court in Florida (the “Florida Actions”) against the Picower Defendants. In that action, she was represented by Beasley Hauser Kramer & Galardi P.A., one of the firms which represents the Class Action Plaintiffs here as well. This Court enjoined the Florida Actions. See Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (“Fox I”), 429 B.R. 423, 437 (Bankr.S.D.N.Y.2010)." }, { "docid": "17543537", "title": "", "text": "claim that is “general” to all creditors .... It is normally the debtor’s creditors, and not the debtor itself, that have the right to assert a fraudulent transfer claim outside of bankruptcy, but in bankruptcy such a claim is usually brought by the trustee, for the benefit of all creditors. This is because the claim is really seeking to recover property of the estate. Highland Capital Mgmt. LP v. Chesapeake Energy Corp. (In re Seven Seas Petroleum, Inc.), 522 F.3d 575, 589 n. 9 (5th Cir.2008). Appellants Marshall and Fox argue that their complaints assert non-derivative conspiracy-based claims predicated upon the Picower defendants’ direct participation in the theft of BLMIS customers’ funds. However, the allegations in appellants’ respective Florida complaints echo those made by the Trustee. With regard to the Picower defendants’ knowledge of the fraud, each complaint alleges: (1) that the Picower defendants’ account supposedly achieved implausibly high rates of return, see Joint App’x 707, 1358, 2584; (2) that, unlike other investors, the Picower defendants were sufficiently close to Ma-doff to be privy to BLMIS’ trading records, see id. at 722, 1349, 2584; and (3) that the Picower defendants knew of fictitious and backdated trading activity in their accounts, see id. at 724, 1359, 2593. See also Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, 477 B.R. 351, 358-78 (Bankr.S.D.N.Y.2012) (chart comparing allegations in Trustee’s complaint with those in the Florida complaints, appended as Exhibit A to the opinion of the Bankruptcy Court). In fact, the Florida complaints cite the factual allegations contained in the Trustee’s complaint in New York’s bankruptcy court multiples times in support of their claims. Appellants rightly note that overlapping allegations may give rise to a multiplicity of claims. As the Fifth Circuit has explained, “there is nothing illogical or contradictory about saying that [a third-party defendant] might have inflicted direct injuries on both the [estate’s creditors] and [the debtor estate] during the course of dealings that form the backdrop of both sets of claims.” In re Seven Seas, 522 F.3d at 587; see, e.g., Bankers Trust Co. v. Rhoades, 859 F.2d" } ]

[ { "docid": "23211234", "title": "", "text": "and a “pain diary” covering August 13, 1985, shortly after his current application, to June 25, 1986, the day before the administrative hearing. After considering the evidence, the AU concluded that Harrell was unable to perform his past relevant work as a supply sergeant but that he had the residual functional capacity to perform the physical exertion requirements for light work. Following the current denial of benefits by the AU, the Social Security Administration (SSA) Appeals Council denied review, rendering the AU’s decision the final decision of the Secretary. Harrell then sought review of the Secretary’s decision in federal district court. The matter was referred to a magistrate who, on March 8, 1988, issued a report recommending that the Secretary’s decision be affirmed. The district court adopted the magistrate’s recommendation and entered judgment accordingly on May 19, 1988. Harrell now appeals. II. In reviewing the Secretary’s decision to deny disability and SSI benefits, this court is “limited to a determination that the Secretary’s decision was supported by substantial evidence existing in the record as a whole and that no errors of law were made.” Neal v. Bowen, 829 F.2d 528, 530 (5th Cir.1987). In applying the “substantial evidence” standard, we must carefully scrutinize the record to determine if, in fact, such evidence is present. However, we may not reweigh the evidence in the record, nor try the issues de novo, nor substitute our judgment for the Secretary’s, even if the evidence preponderates against the Secretary’s decision. Id.; Fields v. Bowen, 805 F.2d 1168, 1169 (5th Cir.1986). Substantial evidence means more than a scintilla, but less than a preponderance and is: [S]uch relevant evidence as a reasonable mind might accept to support a conclusion. It must do more than create a suspicion of the existence of the fact to be established, but “no substantial evidence” will be found only where there is a “conspicuous absence of credible choices” or “no contrary medical evidence.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983) (citations omitted). An individual applying for disability and SSI benefits bears the initial burden of proving that he is" } ]

[ { "docid": "12766202", "title": "", "text": "of the Social Security Act, 42 U.S.C. §§ 416(i)(l)(A) and 423(d)(1)(A). On appeal the Appeals Council remanded the case to the administrative law judge because of insufficient evidence to support the decision. On July 2, 1975, a second hearing was held and the administrative law judge once again found no disability. The Appeals Council affirmed on January 26,1976, and the administrative law judge’s decision became the final decision of the Secretary. Knott then sought review in the district court, which granted defendant’s motion for summary judgment. Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .” The only issue before this Court, then, is whether substantial evidence supports the final decision of the Secretary on the question of disability. Rivas v. Weinberger, 5 Cir., 1973, 475 F.2d 255, 257-58, describes our role in reaching this determination: Our function in reviewing fact findings of the Secretary is limited to determining whether there is substantial evidence in the record, considered as a whole, to support them. 42 U.S.C.A. § 405(g); see Ward v. Celebrezze, 5th Cir. 1963, 311 F.2d 115, 116. Substantial evidence is “more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Breaux v. Finch, 5th Cir. 1970, 421 F.2d 687; see 4 K. Davis, Administrative Law Treatise § 29.-02 (1953). See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Hemphill v. Weinberger, 5 Cir., 1973, 483 F.2d 1137, 1139. In short, our role is limited. We cannot reweigh the evidence or substitute our judgment for that of the Secretary. Goodman v. Richardson, 5 Cir.," }, { "docid": "10844747", "title": "", "text": "findings in support of its conclusion. The ALJ entered both the telephone message and the letter into the record, but he did not ask Leavitt or Wells whether this newly presented evidence changed their opinions. On September 8,1976, the ALJ issued his decision finding that Warncke’s impairments did not render him disabled. In particular, the AU stated that Claimant’s impairments, singly .or in combination, have been of such limited severity that taking into account claimant’s age, education, work history and general background claimant can no longer drive a truck but can do such light or sedentary work as dispatcher for a trucking company. Also, he retains the ability to work as a contact lens polisher, electronic equipment assembler, cashier for self-service gas station and telephone sales work. Id. at 17. The ALJ’s decision was affirmed by the appeals council in May 1977. In July 1977 Warncke filed suit in district court. The judge granted the Secretary summary judgment in January 1978, and held that “in this case the Court is of the opinion that there is no doubt that the decision of the Secretary is supported by substantial evidence.” Record, Vol. I, at 79. From this ruling Warncke now appeals. II. Substantial Evidence. In reviewing claims brought under the Social Security Act, we must affirm the Secretary’s decision if it is supported by substantial evidence. 42 U.S.C. § 405(g); Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980). Substantial evidence requires “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). We may not reweigh the evidence or substitute our own judgment for that of the Secretary even if we find that the evidence preponderates against the Secretary’s decision. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Disability is defined by the Social Security Act as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to" }, { "docid": "22011772", "title": "", "text": "MEMORANDUM BLAIR, District Judge. Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for review of a final decision by the Secretary of Health, Education, and Welfare denying her claim for disability insurance benefits. Plaintiff claims that the Secretary’s decision finding no disability is not supported by substantial evidence. Both sides have moved for summary judgment. Alternatively, plaintiff has moved for a remand. Plaintiff filed her application for a period of disability and disability insurance on July 28, 1972. After a de novo hearing before an administrative law judge on January 8, 1974, the judge found that plaintiff was not under a physical or mental impairment sufficiently severe to prevent her from engaging in substantial gainful activity on or before September 30, 1967 — the date she last met the special earnings requirement. Accordingly, the adminis trative judge found that plaintiff was not “disabled” within the meaning of the Social Security Act and therefore held that she was not entitled to benefits. This decision was approved by the Appeals Council on August 6, 1974, and thus became the final decision of the Secretary for purposes of judicial review. Section 405(g) provides that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..” 42 U.S.C. § 405(g) (1970). Hence, judicial review is limited to whether the Secretary applied the correct legal standards, Knox v. Finch, 427 F.2d 919 (5th Cir. 1970), and whether the decision is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “Substantial evidence” has been defined as more than a scintilla but less than a preponderance. Id. at 776. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Further, while the court may not try the ease de novo, “the Court must not abdicate its required function to scrutinize the record' as a whole to determine whether the conclusions reached have a reasonable basis in law.” Hicks v." }, { "docid": "8180252", "title": "", "text": "MEMORANDUM RAYMOND J. BRODERICK, District Judge. This action is brought under Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3), to review a final decision of the Secretary of Health and Human Services denying a waiver of adjustment or recoupment of overpayment in Supplemental Security Income benefits. The decision of the Administrative Law Judge on December 21, 1978 became the final decision of the Secretary in this case when the Appeals Council determined, on May 23,1979, that there was no basis for review under 20 C.F.R. § 416.-1465. The final decision holds that the claimant received Supplemental Security Income of $667.58 in excess of that to which she was entitled; that recovery of the overpayment would defe'at the purpose of Title II of the Social Security Act; but that as the claimant was with fault with regard to the overpayment, repayment of the overpayment would not be waived. This matter is before the Court on cross-motions of the parties for summary judgment. In the alternative, the claimant has requested the record of this case be remanded to the Secretary for a hearing de novo. Title 42 U.S.C. § 405(g) provides in pertinent part that: The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. Thus, in reviewing the Secretary’s decision, the Court’s role is narrowly circumscribed. The sole question is whether there was substantial evidence in the record as a whole to support the finding of the Secretary that the plaintiff was with fault and not entitled to a waiver of recoupment of the overpay ment. “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971); Davis v. Califano, 439 F.Supp. 94 (E.D.Pa.1977); Good v. Weinberger, 389 F.Supp. 350 (W.D.Pa.1975). As our Third Circuit has noted, “substantial means just that and is not the equivalent of a ‘scintilla’.” Hess" }, { "docid": "23244127", "title": "", "text": "affirmed by the Appeals Council and the federal district court. Plaintiff requests that we review the ALJ’s decision of August 7, 1990, stemming from the hearing held on March 14, 1990. In addressing Plaintiffs claim, the ALJ employed the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520(b)-(f). At the first step, the ALJ found that Plaintiff was not working or engaging in substantial gainful activity. At step two, he found that Plaintiff suffered from a severe impairment. At the third step, the ALJ found that Plaintiffs impairment did not meet or equal a listed impairment. The ALJ then decided the case against Plaintiff at the fourth step. The fourth step requires the ALJ to determine whether the severe impairment prohibits the claimant from performing her past relevant work. He found that it did not, stating that, “the evidence, here, supports a conclusion that the claimant is able to return to her past relevant work as a general office clerk, which was light work. She would also be able to work as a, data entry clerk, which was sedentary and semiskilled work.” (Appellant’s Supp.App. at. 13.) Plaintiff contends that the ALJ’s decision on the fourth step was not supported by substantial evidence. II. The role of this court under 42 U.S.C. § 405(g) is to determine whether there is substantial evidence in the record to support the decision of the Secretary, and not to reweigh the evidence or try the issues de novo. See Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.1986). If supported by substantial evidence, the Secretary’s findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support, a conclusion. Id. at 401, 91 S.Ct. at 1427. In holding that Plaintiff was capable of working as an office clerk or data entry operator, the ALJ claimed to rely on Plaintiffs testimony as to her lifestyle and physical capabilities." }, { "docid": "22889244", "title": "", "text": "the meaning of the Social Security Act. The Appeals Council denied Selders’ request for review of the hearing decision. The decision of the AU therefore became the final decision of the Secretary. Selders sought judicial review in the district court pursuant to 42 U.S.C. § 405(g). The magistrate to whom the case was referred recommended granting the Secretary’s motion for summary judgment, concluding that there was substantial evidence to support the Secretary’s conclusion that Selders was capable of performing light or sedentary work. After Selders filed objections to the magistrate’s report, the district court adopted the magistrate’s recommendation thereby granting the Secretary’s motion for summary judgment and dismissing the suit. Selders appeals. III. Selders raises three issues on appeal. First, he claims that decision of the Secretary of Health and Human Services is not supported by substantial evidence. Second, he claims the Secretary did not properly apply the Medical-Vocational Guidelines when determining that Selders was not disabled. Third, Selders claims that the Secretary should have found him to have an impairment substantially equivalent to one in the Listing of Impairments. Substantial Evidence On review, this court’s function is to determine whether substantial evidence exists in the record as a whole to support the Secretary’s factual findings. Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir.1987). If the Secretary's findings are supported by substantial evidence, they are conclusive and must be affirmed. 42 U.S.C. § 405(g); See Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence means that evidence which is relevant and sufficient for “reasonable mind [to] accept as adequate to support a conclusion.” Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983) (citations omitted). This court may not reweigh the evidence or try the issues de novo. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir.1985). Conflicts in the evidence are for the Secretary and not the courts to resolve. Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.1983). As claimant, Selders had the burden of proving that he is disabled within the meaning of the Social Security Act. Fraga v. Bowen," }, { "docid": "12132033", "title": "", "text": "Neal sought judicial review in the Western District of Louisiana by complaint dated August 20, 1986. On April 28, 1987, a United States Magistrate recommended that the Secretary’s motion for summary judgment be granted. On May 10, 1987, the district court adopted the magistrate's recommendation and entered summary judgment in favor of the Secretary. Neal now appeals claiming that his disability did meet the durational requirement of the Social Security Act. He further contends that the Secretary incorrectly relied on the medical vocational guidelines or “grids” contained at 20 C.F.R. Part 404, Subpart P, app. 2, §§ 200.00-204.00 (1987) to determine that he could perform substantial gainful activity and therefore was not disabled within the meaning of the Act. Because we affirm on the first issue, we find it unnecessary to reach the second. II. A claimant under the Social Security Act may seek judicial review pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). Judicial review is limited to a determination that the Secretary’s decision was supported by substantial evidence existing on the record as a whole and that no errors of law were made. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir.1986). The court may not reweigh the evidence nor may it substitute its judgment for the Secretary’s. Fields v. Bowen, 805 F.2d 1168, 1169 (5th Cir.1986). Nonetheless, the court must scrutinize the administrative record to determine if substantial evidence does indeed support the Secretary’s decision. Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir.1983). A claimant for supplemental security income bears the initial burden of demonstrating that he is disabled within the meaning of the Social Security Act. See Fraga v. Bowen, 810 F.2d 1296, 1301 (5th Cir.1987); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983). If the claimant carries his burden, the burden then shifts to the Secretary to show that the claimant is capable of performing substantial gainful activity and is therefore not disabled. Fields v. Bowen, 805 F.2d at 1170. The Secretary makes this determination using a" }, { "docid": "7571141", "title": "", "text": "MEMORANDUM HANNUM, District Judge. Presently before the Court are cross-motions of the parties for summary judgment on an appeal from a final decision of the Secretary of Health, Education and Welfare denying plaintiff’s claim for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended, Title 30 U.S.C. § 901 et seq. The Administrative Law Judge’s decision of June 26, 1975, holding that Albert Yanushefsky is not entitled to benefits became the final decision of the Secretary in this case when the Appeals Council affirmed it on August 27, 1975. Jurisdiction is pursuant to § 413(b) of the Act, Title 30 U.S.C. § 923(b), which incorporates § 205(g) of the Social Security Act, Title 42 U.S.C. § 405(g). Under Title 42 U.S.C. § 405(g), the Court’s role in reviewing the Secretary’s decision is delimited to making a determina tion as to whether there is “substantial evidence” in the record as a whole to support the finding of the Secretary that plaintiff does not qualify for black lung benefits. In this regard, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; ” it is more than a “scintilla” but “less than a preponderance.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971), rehearing denied, 403 U.S. 912, 91 S.Ct. 2213, 29 L.Ed.2d 690 (1971); Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). After a careful review of the record and briefs, and for reasons discussed below, the Court is unable to determine whether or not the Secretary’s decision is supported by substantial evidence, and, therefore, the matter will be remanded to the Secretary for further findings consistent herewith. In order for plaintiff to establish his entitlement to benefits under the Act he must establish that he was a coal miner; that he was totally disabled on or before June 30, 1973, due to pneumoconiosis, which arose" }, { "docid": "22317255", "title": "", "text": "Subpart P, Appendix 2 (1989), that the ALJ erred in failing to use vocational expert testimony, and that the Secretary's conclusion that he could perform “light work” is not supported by substantial evidence. II. Judicial review of a final decision regarding disability benefits under the Social Security Act, 42 U.S.C. §§ 301 et seq. (the “Act”), is limited to determining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclu-sive_”); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.1987). The phrase “supported by substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427 (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). Elaborating on the foregoing definition, this court has defined “supported by substantial evidence” as: evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966), quoted in Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984), and Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.1972). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court’s function to substitute its judgment for that of the Secretary if his decision is supported by substantial evidence. See Laws v. Celebrezze, 368 F.2d at 642; Snyder v. Ribicoff 307 F.2d 518, 529 (4th Cir.1962). Ultimately, it is the duty of the administrative law judge reviewing a case, and not the responsibility of" }, { "docid": "3558972", "title": "", "text": "be engaged in any gainful operation.” After considering these two reports, the Appeals Council affirmed the AU’s decision, which became the final decision of the Secretary. The magistrate, on referral of the case, recommended that the Secretary’s decision be reversed, finding that “the ALJ’s determination that plaintiff had transferable skills is erroneous as a matter of law” because the qualities involved in operating a hi-lo are aptitudes rather than skills. The district court rejected the magistrate’s recommendation, finding substantial evidence to support the Secretary’s decision. Pursuant to 42 U.S.C. § 405(g), judicial review of the Secretary’s decision is limited to determining whether substantial evidence exists in the record as a whole to support the decision. The reviewing court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). The Secretary is charged with finding the facts relevant to an application for disability benefits, and the Secretary’s findings, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). Substantial evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). “Substantiality of the evidence must be based upon the record as a whole” and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Garner, 745 F.2d at 388 (quoting Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 387 (6th Cir.1978)). Once the claimant establishes that he cannot perform his past relevant work, the burden shifts to the Secretary to establish that the claimant retains the residual functional capacity to perform “substantial gainful work which exists in the national economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986); see also Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). Substantial evidence must support a finding that the claimant" }, { "docid": "23346885", "title": "", "text": "940 F.2d 942, 945 (5th Cir.1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). If substantial evidence supports the Secretary’s findings, they are conclusive and must be affirmed. 42 U.S.C. § 405(g) (1988); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990). Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427; Selders, 914 F.2d at 617. It is more than a mere scintilla, and less than a preponderance. Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.1990). “This Court may not reweigh the evidence or try the issues de novo. Conflicts in evidence are for the Secretary and not the courts to resolve.” Selders, 914 F.2d at 617 (citation omitted). We review the district court’s grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate if the record discloses “that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S.Ct. at 2553-54. While we must “review the facts drawing all inferences most favorable to the party opposing the motion,” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986), that party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc.," }, { "docid": "6450202", "title": "", "text": "ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND REMANDING CASE TO SECRETARY. SPENCER WILLIAMS, District Judge. Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Secretary of Health and Human Services denying his application for disability insurance benefits. Both parties have filed motions for summary judgment. Having concluded that the administrative law judge (ALJ) used improper legal standards in weighing the evidence, this court remands, directing the Secretary to act in accordance with this opinion. FACTUAL BACKGROUND Plaintiff is a thirty-three year old man with twelve years of formal education. His work history consists of sporadic periods of employment as a self-employed portrait artist, dishwasher, and street musician. In one six week period in 1967, plaintiff earned $1500 painting portraits. He continued to work intermittently as an artist until 1976 (TR 46), and his last job was as a dishwasher in October, 1978. On August 23, 1978, plaintiff filed an application for supplemental security income, alleging manic-depressive illness as the cause of his inability to work. The Social Security Administration denied plaintiff’s application. On January 21, 1980, after considering the case de novo, the ALJ found the plaintiff not to be disabled under the Social Security Act. The ALJ’s decision became the final decision of the Secretary when it was approved by the Appeals Council on March 20, 1980. GENERAL LEGAL STANDARD Under 42 U.S.C. § 405(g), the jurisdiction of the court is limited to the ques tion of whether the findings of the Secretary are supported by substantial evidence. Hall v. Secretary of Health, Education, and Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979). Applying this test, the court must uphold the Secretary’s determination that plaintiff is not disabled for the purpose of receiving benefits if the findings are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The court’s review is directed to the record as a whole and not merely to the evidence" }, { "docid": "22082538", "title": "", "text": "amend the judgment. Consequently, the district court concluded that all parties had the opportunity to present their positions and that the dividend issue was properly considered. Because the district court’s ruling on plaintiff’s Rule 59(e) motion nullified Martin’s former appeal to this court pursuant to Rule 4(a)(4) , plaintiff Martin filed a sec ond notice of appeal on December 14, 1988, from the June 10, 1988 final judgment of the district court to this court. II. THE LEGAL ORCHESTRATION A. The Critical Review of Martin’s Music Our review of the Secretary’s decision, as that of the district court, is demarcated by a deferential reconsideration of the findings of fact and an exacting examination of the conclusions of law. See Graham v. Bowen, 790 F.2d 1572, 1574-75 (11th Cir.1986). The Act dictates that the Secretary’s factual findings are conclusive if supported by “substantial evidence.” 42 U.S.C. § 405(g) (1982). Therefore, “[w]e may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Secretary;” rather “[w]e must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983) (citations omitted); see Powell ex rel. Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir.1985) (per curiam). Substantial evidence as to the Secretary’s factual findings is more than a scintilla, but less than a preponderance: “[i]t is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth, 703 F.2d at 1239 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)); see McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.1988); Hillsman v. Bowen, 804 F.2d 1179, 1180-81 (11th Cir.1986) (per curiam); Walden v. Schweiker, 672 F.2d 835, 838-39 (11th Cir.1982). Even if the evidence preponderates against the Secretary’s factual findings, we must affirm if the decision reached is supported by substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.1986); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.1986); Bloodsworth, 703 F.2d at 1239. In contrast to" }, { "docid": "23574598", "title": "", "text": "by Sheffel revealed early degenerative disc disease but disclosed good mobility on the lateral flexion and extension views. Baxter was the only witness at the administrative hearing. She submitted her medical records and briefly answered questions posed by the ALJ but was never asked to describe how her injuries and her pain interfered with her ability to work in 1982. It appears that both Baxter and the AU intended that the documentary records would provide the basis for decision. STANDARD OF REVIEW We review de novo the district court’s grant of summary judgment in favor of the Secretary. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989). To survive our review, the findings of the Secretary must be supported by substantial evidence and the denial of benefits must be otherwise free of legal error. Bates v. Sullivan, 894 F.2d 1059, 1061 (9th Cir.1990). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but “less than a preponderance.” Bates, 894 F.2d at 1061. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401, 91 S.Ct. at 1427. We cannot affirm the Secretary by simply isolating a certain amount of supporting evidence. We must consider the administrative record as a whole, weighing evidence that undermines as well as evidence that supports the Secretary’s decision. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir.1990). DISCUSSION The Secretary first argues that Baxter waived her right to appeal because she filed no objections to the magistrate’s report and recommendation. We disagree. In the Federal Magistrates Act, Congress provided that district court judges “shall make a de novo determination of those portions of the [magistrate’s] report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.A. § 636(b)(1) (West Supp.1990). The rule in some circuits is that a party who fails to object to the magistrate’s findings waives the right to contest them on appeal. Thomas v. Arn, 474 U.S. 140, 145-46 & n. 4 106" }, { "docid": "22562084", "title": "", "text": "district court should grant the Secretary’s motion. Although Hollis filed written objections to the recommendation, the district court adopted the magistrate’s report as the finding of the court, granted the Secretary’s motion, and dismissed Hollis’ case with prejudice. Hollis now brings this appeal. II. The scope of our review of the Secretary’s decision to deny Hollis disability benefits and supplemental security income is restricted to two inquiries: (1) does the record contain substantial evidence which supports the Secretary’s position; and (2) did the Secretary apply the proper legal standards in evaluating the evidence? Hollis v. Bowen, 832 F.2d 865, 866 (5th Cir.1987); Underwood v. Bowen, 828 F.2d 1081, 1082 (5th Cir.1987). “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.” Adams v. Bowen, 838 F.2d 509, 511 (5th Cir.1987) (citing Richardson v. Perales, 402 U.S. 389, 401), 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In applying the substantial evidence standard, we must carefully scrutinize the record to determine if, in fact, such evidence is present; at the same time, however, we may neither reweigh the evidence in the record nor substitute our judgment for the Secretary’s. Neal v. Bowen, 829 F.2d 528, 530 (5th Cir.1987). On appeal, Hollis attacks two different aspects of the Secretary’s decision. First, Hollis challenges the legal standard by which the ALT evaluated her assertions of pain. Second, Hollis challenges — as not supported by substantial evidence — the ALJ’s determination that she is capable of performing her past relevant work. We address each of Hollis’ arguments in turn. A. The AU’s Evaluation of Hollis’ Pain Hollis’ challenge to the legal standard used by the ALJ in evaluating her pain centers on 42 U.S.C. § 423(d)(5)(A), which Congress enacted as part of the Social Security Disability Benefits Reform Act of 1984. In pertinent part, section 423(d)(5)(A) reads: An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require. An" }, { "docid": "15089193", "title": "", "text": "MEMORANDUM AND ORDER THEIS, District Judge. This matter is before the court on the Secretary’s motion to affirm and the plaintiff’s motion for summary judgment. This action involves two applications made under the Social Security Act. Plaintiff filed an application for disability insurance benefits under Title II of the Act, 42 U.S.C. § 401 et seq. and an application for supplemental security income (SSI) benefits based on disability under Title XVI of the Act, 42 U.S.C. § 1381 et seq. Plaintiff’s applications were denied initially (Tr. 91-98) and on reconsideration. Tr. 107-15. On October 30,1987, following a hearing, an administrative law judge (ALJ) rendered a decision finding that plaintiff was not under a disability as defined in the Social Security Act. Tr. 15-23. On March 7, 1988, the Appeals Council of the Social Security Administration denied plaintiff’s request for review. Tr. 3-4. Thus, the decision of the AU stands as the final decision of the Secretary. Judicial review is available under 42 U.S.C. §§ 405(g), 1383(c)(3). The standard of review in this case is established by 42 U.S.C. § 405(g), which provides that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, ...” Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). It is not the duty of the court to reweigh the evidence. Garrett v. Califano, 460 F.Supp. 888, 890 (D.Kan.1978); Manigan v. Califano, 453 F.Supp. 1080, 1086 (D.Kan.1978). Substantial evidence, however, must be more than a mere scintilla. Perales, 402 U.S. at 403, 91 S.Ct. at 1428. This court cannot affirm the Secretary’s decision by isolating a few facts and calling them “substantial evidence.” Cline v. Califano, No. 78-4166 (D.Kan., August 31, 1979). It is the court’s duty to scrutinize the entire record to de termine whether the Secretary’s conclusions are rational. Keef v. Weinberger, 404 F.Supp. 1193, 1196 (D.Kan.1975). In applying these standards, the court must keep in mind that the purpose of the Social Security" }, { "docid": "22120664", "title": "", "text": "that she could perform. The Appeals Council denied Cutlip’s request for review, making the ALJ’s decision the final decision of the Secretary. Cutlip then sought judicial review in the district court. A magistrate judge recommended that the Secretary’s decision be reversed, because the Secretary failed to accord proper weight to the opinions of Cutlip’s treating physicians, Cutlip was entitled to a presumption that her disability still exists, and substantial evidence did not support the Secretary’s decision. The district court rejected the magistrate’s recommendation and decided that substantial evidence supported the Secretary’s finding that Cutlip’s medical condition had improved to the extent that she was able to engage in substantial gainful activity. Discussion Pursuant to 42 U.S.C. § 405(g), this court has jurisdiction to review the Secretary’s decisions. Judicial review of the Secretary’s decisions is limited to determining whether the Secretary’s findings are supported by substantial evidence and whether the Secretary employed the proper legal standards. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). This court does not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility. See Brainard v. Secretary of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). In determining the existence of substantial evidence, this court must examine the administrative record as a whole. Kirk, 667 F.2d at 536. If the Secretary’s decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983), and even if substantial evidence also supports the opposite conclusion, see Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (en banc). This" }, { "docid": "23346884", "title": "", "text": "impairment until October 1, 1985. The Appeals Council found that prior to October 1, 1985, Spellman’s impairments limited her to sedentary work which did not expose her to environmental or industrial pollutants. The Appeals Council concluded that Spellman was able to perform her past relevant work prior to October 1, 1985, because it was sedentary, and was performed in a clean environment. The Appeals Council found that the mental demands of Spellman’s job exceeded her residual functional capacity as of October 1, 1985, because her mental impairment became severe after that date. Thus, the Appeals Council concluded that Spellman was disabled beginning October 1, 1985. The district court reopened Spellman’s action, and a magistrate judge found that the Appeals Council’s decision was based on substantial evidence. Adopting the magistrate judge’s findings, the district court granted summary judgment for the Secretary. Spellman appeals. II On review, this Court determines whether substantial evidence exists in the record as a whole to support the ALJ’s factual findings and whether the proper legal standards were applied. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir.1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). If substantial evidence supports the Secretary’s findings, they are conclusive and must be affirmed. 42 U.S.C. § 405(g) (1988); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990). Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427; Selders, 914 F.2d at 617. It is more than a mere scintilla, and less than a preponderance. Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.1990). “This Court may not reweigh the evidence or try the issues de novo. Conflicts in evidence are for the Secretary and not the courts to resolve.” Selders, 914 F.2d at 617 (citation omitted). We review the district court’s grant of a summary judgment motion de novo. Davis v. Illinois Cent. R.R., 921 F.2d 616, 617-18 (5th Cir.1991). Summary judgment is appropriate" }, { "docid": "11008223", "title": "", "text": "MEMORANDUM AND ORDER CROW, District Judge. This is an action to review the final decision of the Secretary of Health and Human Services [42 U.S.C. § 405(g)] denying disability benefits to plaintiff, Alma D. Alford. The case is ripe for decision on the plaintiff’s motion for summary judgment and on the Secretary’s motion to affirm. Plaintiff has been represented by counsel through most of the proceedings at the administrative level and through all the proceedings at the judicial level. On March 11, 1988, plaintiff filed her second application for disability benefits under Title II. She alleged that as of January 6, 1987, she suffered from a disabling condition in her feet, back, knees and arm and had low blood pressure. Plaintiff’s claim was denied initially and on reconsideration. Following a hearing held on January 18, 1989, the administrative law judge (AU) issued his decision finding that the plaintiff was not disabled at any time through February 17, 1989, the date of his decision. On November 8, 1989, the Appeals Council denied the plaintiff’s request for review. Consequently, the AU’s decision stands as the Secretary’s final decision. The court’s standard of review is set forth at 42 U.S.C. § 405(g), which reads that “the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence is more than a scintilla and is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 1427-28, 28 L.Ed.2d 842 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). The court’s duty to assess whether substantial evidence exists: “is not merely a quantitative exercise. Evidence is not substantial ‘if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.’ ” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985)). The court is not to reweigh the evidence or substitute its judgment for that of" }, { "docid": "11544023", "title": "", "text": "1986 before a different AU. This AU, like the first, concluded that McAllister could perform his past work and thus was “not under a ‘disability’ as defined in the Social Security Act at any time through the date of decision.” The Appeals Council adopted the recommended decision of the AU as the final decision of the Secretary of Health and Human Services on September 22, 1986. McAllister thereafter renewed his action in the district court. On January 11, 1988 the district court issued an order, granting the Secretary’s motion for summary judgment and dismissing McAllister’s complaint. McAllister timely appealed. The district court’s jurisdiction to review the final decision of the Secretary was based upon 42 U.S.C. § 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291. DISCUSSION We review the district court’s grant of summary judgment de novo. Paulson v. Bowen, 836 F.2d 1249, 1250 (9th Cir.1988). In reviewing the AU’s denial of disability benefits, we will affirm if the findings are supported by substantial evidence and the Secretary applied the correct legal standards. Id. Substantial evidence means “more than a mere scintilla”, Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but “less than a preponderance”, Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401, 91 S.Ct. at 1427. In determining whether there is substantial evidence to support the AU’s decision, we are required to review the administrative record as a whole, weighing both the evidence that supports and detracts from the AU’s conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986). A. Rejection of Treating Physician’s Opinion At issue in this appeal is whether the AU properly rejected McAllister’s treating physician’s opinion that McAllister was disabled. At the 1984 hearing before the first AU, McAllister’s treating psychologist, Jack Nidever, Ph.D., opined that McAllister was fully disabled for employment due to his psychological problems. At the 1986 hearing before the second AU, Shingsan Chou," } ]

[ { "docid": "18714334", "title": "", "text": "departure of the two employees did not disqualify the plan with respect to coverage and that the analysis of the 1974 contributions would be the same with or without them. These findings are amply supported by the evidence. We conclude, therefore, that the departure of two salaried employees in 1972 was not material to either the coverage or the contribution requirements of the Code. The Commissioner is required to abide by Treasury Regulation 26 C.F.R. § 601.201(1)(5) because it is reasonably based on I.R.C. § 7805(b). Lansons, Inc. v. Commissioner, 622 F.2d 774, 776-77 (5th Cir.1980). Because the departure of two employees in 1972 was not material, the Commissioner abused his discretion by retroactively revoking in 1978 his 1962 ruling, upon which H.T. Boggs relied in 1976 when he rolled over his share in the trust to his IRA. We agree with the conclusion expressed in Lansons, 622 F.2d at 778: “[T]he Commissioner’s failure to abide strictly by his own regulations limiting retroactive revocation of a favorable ruling amounts to an abuse of discretion.” Having sustained the Commissioner’s retroactive revocation of qualification commencing with fiscal year December 1, 1974, the Tax Court held that consequently the trust was not qualified in 1975 and 1976. We cannot accept this result. In the absence of valid retroactive revocation, the trust remained qualified in 1976. The Commissioner cannot rely on his invalid retroactive revocation to disqualify the trust in 1976. The departure of two employees in 1972 was just as immaterial in 1976 as it had been in 1974. Accordingly, we conclude that pursuant to I.R.C. § 402(a)(5), H.T. Boggs could roll over his share of the trust without including it in his gross income. The judgment of the Tax Court is vacated, and the case is remanded to the Tax Court for proceedings consistent with this opinion. . The Tax Court’s opinion is reported as Boggs v. Commissioner, 83 T.C. 132 (1984). . Section 402(a)(5) provided in pertinent part: (A) General rule. If— (i) the balance to the credit of an employee in a qualified trust is paid to him in a" } ]

[ { "docid": "4674954", "title": "", "text": "as unindicted co-conspirators in the case. Based on the testimony at the criminal trials, the IRS began to examine AFI’s tax-exempt status for the years 1976 through 1980. The IRS notified AFI of its concern by a draft technical advice memorandum (“draft TAM”), dated' December 15, 1980. The draft TAM identified eleven issues to be addressed, each constituting a potential ground for revocation. Subsequent to the issuance of the draft TAM, AFI sought and received several extensions of time in which to respond to the draft TAM. AFI filed its response, called a protest, in 1983. AFI challenged the IRS’ use of grand jury materials and testimony from Dr. Head’s criminal trials in its evaluation of AFI’s tax-exempt status. The Fourth Circuit ultimately upheld this practice. United States v. Under Seal, 783 F.2d 450 (4th Cir.1986), cert. denied sub nom, Raven’s Hollow, Ltd. v. United States, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987). In 1988, the IRS completed its determination which had been held in abeyance while the IRS’ use of the grand jury materials and testimony was being challenged. In November 1988, the IRS issued its final TAM, revoking AFI’s exempt status effective January 1,1976, based on its conclusion that AFI was serving the private interests of Dr. Head. The IRS also based the revocation on, its conclusion that AFI was operating as a commercial enterprise. Following a hearing on the United States’ motion for summary judgment, the Court remanded the matter to the IRS. The Court directed the IRS to set forth the facts, with specific citations to the administrative record, on which the IRS had based its revocation decision, in order that the Court could review the IRS’ conclusions. See Memorandum Order, August 21, 1992, 1992 WL 280796. The IRS- filed a compliance document in October 1992. II. A. Network of organizations The IRS revoked AFI’s exempt status based, in part, on the conclusion that AFI was serving the private interests of Dr. Head. This conclusion rests on Dr. Head’s control over a network of organizations, including AFI, that were involved in numerous transactions" }, { "docid": "4674955", "title": "", "text": "grand jury materials and testimony was being challenged. In November 1988, the IRS issued its final TAM, revoking AFI’s exempt status effective January 1,1976, based on its conclusion that AFI was serving the private interests of Dr. Head. The IRS also based the revocation on, its conclusion that AFI was operating as a commercial enterprise. Following a hearing on the United States’ motion for summary judgment, the Court remanded the matter to the IRS. The Court directed the IRS to set forth the facts, with specific citations to the administrative record, on which the IRS had based its revocation decision, in order that the Court could review the IRS’ conclusions. See Memorandum Order, August 21, 1992, 1992 WL 280796. The IRS- filed a compliance document in October 1992. II. A. Network of organizations The IRS revoked AFI’s exempt status based, in part, on the conclusion that AFI was serving the private interests of Dr. Head. This conclusion rests on Dr. Head’s control over a network of organizations, including AFI, that were involved in numerous transactions and exchanges of money, marketable assets and land. At the center of this network was AFI, which was incorporated in 1960 as a Virginia non-stock corporation. Dr. Murdock Head founded AFI. The Foundation applied for tax-exempt status under Section 501(c)(3) of the Internal Revenue Code on August 17, 1962. The Foundation’s application was referred to the Internal Revenue Service National Office, for consideration and exempt status was granted in 1963. Dr. Head served as the unpaid Executive Director of AFI until October 1979. He admitted at his criminal trial that he controlled AFI. Head II, vol. XVIII at 85-86. Airlie Farm was another part of the network. It was acquired by Dr. Head and his then wife Mrs. Head in a series of purchases during the 1950s and 1960s. The Heads operated the partnership known as Airlie Farm until 1976. The Heads acquired as partners nearly 1,200 acres of land located near Warrenton, Virginia, between June 1956 and May 1967. On November 1, 1960, AFI leased approximately 388 acres and buildings thereon from the Airlie" }, { "docid": "20744516", "title": "", "text": "procedure stating the manner in which such discretion would be employed). In Lansons, Inc. v. Commissioner, supra, we held that the Commissioner could not exercise his power under section 7805(b) to retroactively revoke a ruling because his action amounted to an abuse of discretion. Our holding was based on the fact that none of the circumstances set forth in the statement of procedural rules and a revenue procedure, and identified by the Commissioner as warranting such action, were found to exist. Lansons, Inc. v. Commissioner, supra at 787. We held that the Commissioner must observe his published standards on the basis of his longstanding practice of assuring taxpayers that they may rely on rulings issued to them, absent a change in facts. Lansons, Inc. v. Commissioner, supra at 786. The reason the Commissioner publishes a statement of the circumstances under which a ruling will be retroactively revoked “is to provide some certainty for taxpayers and to permit them to rely upon respondent’s rulings. Without such assurance there would be little reason to obtain a ruling.” Pulver Roofing Co. v. Commissioner, 70 T.C. 1001, 1018, 1022 (1978) (Drennen, J., dissenting). In Presbyterian & Reformed Publishing Co. v. Commissioner, supra, we held the retroactive revocation of an exemption letter to be an abuse of discretion where conditions for such action spelled out in a revenue procedure were not met. Presbyterian & Reformed Publishing Co. v. Commissioner, supra at 1089. We reasoned that where the Commissioner “has chosen, in the exercise of his wide discretion, to impose discretionary limits, he must abide by those limits.” Presbyterian & Reformed Publishing Co. v. Commissioner, supra at 1089. In Elkins v. Commissioner, supra, the Commissioner announced that a proposed amendment to a regulation would not be applied under certain specified circumstances. When the regulations subsequently were promulgated, the Commissioner retroactively attempted to change the interpretation set forth in the prior announcement. We held that the Commissioner abused his discretion under section 7805(b), at least with respect to taxpayers who reasonably relied upon the announcement. Elkins v. Commissioner, 81 T.C. at 677, 679-681. We stated that the" }, { "docid": "11463417", "title": "", "text": "21. But Agent Smith spent over 400 hours over the course of three years reviewing materials provided to him regarding the DLC. Id. at 76. His testimony is entitled to some weight. In any event, as noted above, Agent Smith’s testimony simply confirms what the record shows: the DLC acted in material conformity with, and did not otherwise omit or misstate a material fact in, its original application. Accordingly, the retroactive revocation of tax-exempt status for years 1997, 1998, and 1999 violated Treasury Regulation 601.201 and was an abuse of discretion. See Buzzetta Constr., 92 T.C. at 651 (“ ‘[WJhen a taxpayer has put substantial good faith reliance upon an IRS determination of its tax position and when a retroactive revocation of that determination will produce an inordinate adverse effect, the Commissioner’s failure to abide strictly by his own regulations limiting retroactive revocation of a favorable ruling amounts to an abuse of discretion.’ ”) (quoting Lansons, Inc. v. Comm’r, 622 F.2d 774 (5th Cir.1980)) (emphasis added); Thomas G. Faria Corp., 1977 WL 3812, **11-12, 1977 U.S.Ct. Cl. LEXIS 576, at *28-29 (“[I]t must be held that defendant’s retroactive revocation in the present case constitutes a clear abuse of discretion” because the applicable IRS ruling “cannot be retroactively applied to plaintiff without the IRS’s violating its own procedural rules.”); cf Prince Edward Sch. Found. v. Comm’r, 478 F.Supp. 107, 113 (D.D.C.1979) (allowing retroactive revocation of tax-exempt status because such revocation was “consistent with” Treasury Regulation 601.201(n)(6)(i)). Thus, the DLC is entitled to a refund for each of those years. III. CONCLUSION As the Government’s agent acknowledged, and the undisputed facts reveal, the DLC has not omitted or misstated a material fact or operated in a manner materially different from that originally represented. Accordingly, the IRS abused its discretion when it retroactively revoked the DLC’s tax-exempt status. See 26 C.F.R. 601.201(n)(6)(i). In the end, the Government proves too much: by emphasizing the DLC’s original connection to the Democratic Party in an effort to show that the DLC benefits a private group, the Government reveals that the DLC did not operate in a" }, { "docid": "4308885", "title": "", "text": "allocable to VA benefits , the IRS has apparently recognized that all veterans who receive educational benefits should be taxed similarly. This ruling, however, will not be applied retroactively to assess deficiencies for taxpayers who deducted these expenses in prior tax years. Nonetheless, the government argues that it has not drawn an arbitrary distinction because a veteran who receives flight-training allowances must use the entire amount for educational purposes, whereas veterans engaged in other educational pursuits are merely “expected” to use a portion of the benefits for tuition, books, and other costs. Such a distinction is not evident in the statutory scheme: section 1681(a) provides that the allowance is intended to compensate both educational costs and provide for the veteran’s support during the period of enrollment. Moreover, we are not persuaded that this distinction permits retroactive denial of a deduction for some veterans receiving certain educational benefits, while allowing others who received similar educational benefits to retain the advantage of the deduction. This argument ignores the underlying reality: all veterans enrolled in educational programs received tax-free benefits intended to compensate some portion of educational expenses. The government cites Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965), for the proposition that so long as the Commissioner harbors a good-faith belief that a difference in tax treatment is justified, he has not abused his discretion. We decline to read that case so broadly. Dixon arose when the IRS announced that it would follow a Tax Court decision allowing capital gains treatment for the amount realized upon retirement of a particular type of debt security. The Commissioner subsequently revoked this acquiescence, and determined that the new position would be applied retroactively. An exception was created to the retroactivity portion of the ruling in that no deficiency would be assessed for amounts received upon redemption of those instruments purchased between the dates of the two rulings. Petitioners sought favorable capital gains treatment for other types of securities they purchased during that same period. The Court observed that petitioners failed to discharge their burden of demonstrating that the two" }, { "docid": "4682509", "title": "", "text": "point, however, the operation of petitioner’s book sales activity became so substantial and so commercial in nature as to constitute a purpose in and of itself which deprived petitioner of its right to exemption. This change in purpose and mode of operation clearly constitutes a material change. The date to which this revocation should be made retroactive is, however, less certain. The Commissioner has elaborated on his discretionary standards regarding the timing of retroactive revocation in Rev. Proc. 80-25,1980-1 C.B. 667,671 (effective June 30,1980), which reads in part as follows: A ruling or determination letter recognizing exemption may be revoked or modified by a subsequent ruling or determination letter addressed to the organization, or by a revenue ruling or other statement published in the Internal Revenue Bulletin. The revocation or modification may be retroactive if the organization omitted or misstated a material fact, operated in a manner materially different from that originally represented * * * . Where there is a material change, inconsistent with exemption, in the character, the purpose, or the method of operation of an organization, revocation or modification will ordinarily take effect as of the date of such material change. In cases where a ruling or determination letter was issued in error or is no longer in accord with the holding of the Service, retroactivity of the revocation or modification ordinarily will be limited to a date not earlier than that on which the original ruling or determination letter is modified or revoked. [Emphasis added.] Respondent argues that by 1969, petitioner’s operations had changed so materially as to be inconsistent with exemption. It is difficult to pinpoint the year in which the disqualifying change occurred because of its gradual nature, and we are aware that a retroactive revocation will not be disturbed in the absence of an abuse of discretion. Automobile Club v. Commissioner, supra at 184. Where, however, the Commissoner has chosen, in the exercise of his wide discretion, to impose discretionary limits, he must abide by those limits. See Lansons, Inc. v. Commissioner, 622 F.2d 774, 778 (5th Cir. 1980), affg. 69 T.C. 773" }, { "docid": "16672921", "title": "", "text": "agent. The Handbook did not expressly refer to commissions receivable. The IRS promised that it would follow the rules explained in the Handbook until such rules were modified ‘in regulations or other Treasury publications. ’ The Handbook provided that any such modifications adverse to taxpayers would be applied only prospectively. On September 21, 1972, the Commissioner proposed section 1.994-1(e)(3), Income Tax Regs., 37 Fed.Reg. 19625, 19627-19628, and on October 4, 1972, the Commissioner proposed section 1.993- 2(d)(2), Income Tax Regs., 37 Fed. Reg. 20853, 20858. These proposed regulations were the first pronouncements concerning the treatment of commissions receivable, and they both contained the 60-day payment rule. Proposed section 1.994- l(e)(3) was finally adopted on September 29, 1976 (T.D. 7435, 1976-2 C.B. 238) and contained the 60-day rule; proposed section 1.993-2(d)(2) was finally adopted on October 14, 1977 (T.D. 7514, 1977-2 C.B. 266), and incorporated the 60-day rule by reference to section 1.994-1(e)(3). Section 1.993-2(d)(2), Income Tax Regs., was made applicable to taxable years ending after December 31, 1971. 79 T.C. at 1067-1068 (emphasis added). Internal Revenue Regulations are presumed to have retroactive effect. Anderson, Clayton & Co. v. United States, 562 F.2d 972 (5th Cir.), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978). See 26 U.S.C.A. § 7805(b) (1967). Under section 7805(b), the Secretary of the Treasury has broad discretion to limit the retroactive application of Treasury rulings and regulations. “The decision to make a ruling or regulation retroactive will stand unless it constitutes an abuse of discretion.” Wendland v. Commissioner of Internal Revenue, 739 F.2d 580, 581 (11th Cir.1984) (citing Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 710, 1 L.Ed.2d,746 (1957)). An abuse of discretion may be found where the retroactive regulation alters settled pri- or law or policy upon which the taxpayer justifiably relied and if the change causes the taxpayer to suffer inordinate harm. Farms and International' argue that an abuse of discretion occurred because the Commissioner made an explicit promise in the Handbook that (1) the Internal Revenue Service would follow the rules and procedures set" }, { "docid": "18714330", "title": "", "text": "transaction, and (v) the taxpayer directly involved in the ruling acted in good faith in reliance upon the ruling and the retroactive revocation would be to his detriment. Relying on the condition designated as (ii) in the rule, the Commissioner contends that retroactive revocation was permissible because the facts subsequently developed are materially different from the facts on which the ruling was based. The only change of fact that the Commissioner identifies as being material is the departure in 1972 of two salaried employees who were participants in the trust and who were not members of the prohibited group. In 1962, when the trust was established, five employees were cov ered, three of whom were members of the prohibited group. Upon the departure of the two employees in 1972, all of the participants in the trust were members of the prohibited group. The Commissioner argues: “[Tjhis change constituted a material change that warranted the Commissioner’s retroactive revocation of his prior ruling.” Brief at 29. The Tax Court, accepting the Commissioner’s reason for retroactively revoking the 1962 ruling, held: It is clear that respondent has the statutory authority to revoke a ruling retroactively. Sec. 7805(b). We will not disturb respondent’s decision to make the revocation retroactive unless he has abused his discretion____ Respondent has announced that a ruling will not, in the absence of rare and unusual circumstances, be revoked retroactively if certain conditions are met____ Among the numerous conditions imposed by the procedural regulation is that there be no material change in the facts upon which the prior ruling was based. Petitioner has clearly failed to satisfy this condition. The composition of the participants in the trust did change from that extant when respondent issued his favorable ruling in 1962. We cannot say respondent abused his discretion by retroactively revoking the trust’s qualified status. 83 T.C. at 149-50. The Commissioner’s argument overlooks the fact that the company designated the trust and the union pensions as constituting one plan. Therefore, the materiality of the departure of two salaried employees in 1972 has to be examined in light of the combined plan." }, { "docid": "4308877", "title": "", "text": "stipend consisting of a level payment made without consideration of the costs incurred. Because the Commissioner did not indicate that this new ruling would be prospective only, the decision was presumed to be retroactive under 26 U.S.C. § 7805(b) (1982). Subsequently, the IRS reversed its previously held position as to general educational benefits, ruling that no veteran may deduct amounts expended for educational programs that are allocable to tax-free benefits paid by the VA. Rev. Rul. 83-3, 1983-1 I.R.B.10. This later ruling, however, was limited to prospective application only. The IRS audited appellees’ 1977 return, reduced their deduction by the amount received from the VA, and assessed a deficiency of $4,525. On December 30, 1981, appellees paid this amount. After the Commissioner denied their claim for refund, appellees instituted this suit in district court. On cross-motions for summary judgment, the court ruled that plaintiffs were entitled to the refund because the IRS had abused its discretion by retroactively denying a deduction to taxpayers who received educational benefits for flight-training courses while not disallowing the same deduction for those whose entitlement to benefits accrued by reason of their enrollment in other forms of education. Baker v. United States, 575 F.Supp. 508 (N.D.Ga.1983). The United States now brings this appeal. II. DISCUSSION The government argues that Congress has expressly permitted the IRS to apply its decisions retroactively. Section 7805(b) of the Internal Revenue Code provides that the “Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the Internal Revenue laws, shall be applied with retroactive effect.” 26 U.S.C. § 7805(b) (1982). Unless otherwise indicated, IRS rulings' and regulations therefore are presumed to be retroactive. See Anderson, Clayton & Co. v. United States, 562 F.2d 972, 979 (5th Cir. 1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978). Failure to limit rulings to prospective application, however, is reviewable for an abuse of discretion. See Dixon v. United States, 381 U.S. 68, 71-75, 85 S.Ct. 1301, 1303-05, 14 L.Ed.2d 223 (1965); Wendland v. Commissioner, 739 F.2d 580, 581 (11th Cir. 1984). Thus, although retroactivity" }, { "docid": "13448919", "title": "", "text": "1992, Texaco Air, a wholly-owned subsidiary of Texaco Inc., entered into a Purchase Agreement with EJS in order to acquire a 50-percent undivided interest in a Cessna Citation Model S/II fixed-wing jet aircraft, bearing FAA registration number N111QS. It did so in order to become a participant in the NetJets program. Texaco Air also entered into the Management Agreement, the Owners Agreement, and the Interchange Agreement. Under its Management Agreement with EJA, Texaco Air was entitled to use N111QS or any other interchange aircraft, or up to four aircraft at a time, for an average of 400 hours per year, or a maximum of 2000 hours over the five-year term of the agreement. From March 1,1993 until August 31, 1993, Texaco Air used both Nil IQS and also other interchange aircraft. In accordance with the Management Agreement, Texaco Air paid EJA a monthly fee of $22,429 and a fee of $1060 per flight hour. Until April 1, 1993, EJA paid the IRC § 4041(c) fuel tax with respect to fuel consumed on Texaco Air’s flights on N111QS and other interchange aircraft. The Internal Revenue Service (“IRS”) concluded, however, that through its NetJets program, EJA was providing commercial transportation that was taxable under IRC § 4261. The IRS computed the tax that was due for Texaco Air’s flights based upon the hourly rate of $1060 that EJA charged Texaco Air for each hour of flight time. No transportation tax was assessed with respect to the monthly fee that Texaco Air paid whether or not it utilized interchange aircraft. EJA collected the air transportation tax from Texaco Air for the second and third calendar quarters of 1993 and remitted it to the IRS. Thereafter, it filed refund claims in the total amount of $15,674.60. This sum represented the difference between the IRC § 4261 transportation tax which the IRS required EJA to pay with respect to NetJets program flights by Texaco Air between April 1 and August 31, 1993, and the IRC § 4041(c) fuel tax EJA had paid for such flights. The refund claims were disallowed on April 26,1994. On May" }, { "docid": "11463401", "title": "", "text": "novo proceedings.” (citing Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932))). Accordingly, the court’s determination of the plaintiffs tax liability in that context “does not require (or even ordinarily permit) th[e] court to review findings or a record previously developed at the administrative level.” Id. at 6. When the IRS seeks to revoke tax-exempt status retroactively, however, it faces certain restrictions. Under 26 U.S.C. § 7805(b), the Secretary of Treasury “may prescribe the extent, if any, to which any ruling (including any judicial decision or any administrative determination other than by regulation) relating to the internal revenue laws shall be applied without retroactive effect.” 26 U.S.C. § 7805(b)(8) (2006). The Supreme Court has held that the IRS Commissioner has broad discretion, under section 7805(b) and its predecessor, to decide whether to revoke a ruling retroactively and that such a determination is reviewable by the courts only for abuse of that discretion. Automobile Club of Michigan v. Comm’r, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); see also Virginia Educ. Fund v. Comm’r, 85 T.C. 743, 752, 1985 WL 15410 (1985) aff'd, 799 F.2d 903 (4th Cir. 1986). Treasury Regulation 601.201(n)(6)(i), however, limits the Commissioner’s discretion to revoke retroactively a favorable ruling on exempt status: The revocation or modification may be retroactive if the organization omitted or misstated a material fact, operated in a manner materially different from that originally represented, or engaged in a prohibited transaction of the type described in subdivision (vii) of this sub-paragraph [which addresses diverting monies from the exempt purpose]. In any event, revocation or modification will ordinarily take effect no later than the time at which the organization received written notice that its exemption ruling [or] determination letter might be revoked or modified. § 601.201(n)(6)(i) (emphasis added); see also Buzzetta Constr. Corp. v. Comm’r, 92 T.C. 641, 649, 1989 WL 26384 (1989) (“The Commissioner ... has limited his own dis cretion to revoke retroactively a favorable ruling.”); Prince Edward Sch. Found. v. Comm’r, 478 F.Supp. 107, 113 (D.D.C. 1979) (concluding that retroactive revocation of tax-exempt status" }, { "docid": "4308886", "title": "", "text": "tax-free benefits intended to compensate some portion of educational expenses. The government cites Dixon v. United States, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965), for the proposition that so long as the Commissioner harbors a good-faith belief that a difference in tax treatment is justified, he has not abused his discretion. We decline to read that case so broadly. Dixon arose when the IRS announced that it would follow a Tax Court decision allowing capital gains treatment for the amount realized upon retirement of a particular type of debt security. The Commissioner subsequently revoked this acquiescence, and determined that the new position would be applied retroactively. An exception was created to the retroactivity portion of the ruling in that no deficiency would be assessed for amounts received upon redemption of those instruments purchased between the dates of the two rulings. Petitioners sought favorable capital gains treatment for other types of securities they purchased during that same period. The Court observed that petitioners failed to discharge their burden of demonstrating that the two securities could not be rationally distinguished. 381 U.S. at 80, 85 S.Ct. at 1307-08. The Court then hypothesized reasons for the Commissioner’s decision to create an exception to their retroactive ruling concluding that, “It is not for us to pass on the wisdom of any such distinction.” Id. 85 S.Ct. at 1308. “It suffices that on this record we cannot say that the distinction was so devoid of a rational basis that we must now overturn the Commissioner’s judgment.” Id. (emphasis added). Thus, the Dixon Court properly refused to overturn an exercise of discretion when petitioners failed to sustain their burden of establishing why the discretion was abused. Unlike the petitioners in Dixon, plaintiffs here have demonstrated the irrationality of the Commissioner’s action. III. CONCLUSION We conclude that retroactive enforcement of Revenue Ruling 80-173 creates an arbitrary distinction devoid of any rational basis. We hold, therefore, that the Commissioner abused the discretion afforded under 26 U.S.C. § 7805(b). The district court’s ruling is AFFIRMED. . In its answer, the government denied that the flight-training course" }, { "docid": "4308876", "title": "", "text": "amount is statutorily exempt from taxation. 38 U.S.C. § 3101(a) (1982). Although Baker was in effect reimbursed for ninety percent of the tuition, he was permitted to deduct the entire amount he expended pursuant to a 1962 revenue ruling, in which the IRS stated that a deduction for educational expenses need not be reduced by the amount of educational benefits paid by the VA. Rev.Rul. 62-213, 1962-2 C.B.50, revoked by, Rev.Rul. 83-3, 1983-1 I.R.B.10. In 1980 the IRS modified its prior ruling and determined that flight-training expenses would not be deductible to the extent that a taxpayer receives tax-exempt educational benefits from the VA under former 38 U.S.C. § 1677(b). Rev.Rul. 80-173,1980-2 C.B.60. The IRS reasoned that 26 U.S.C. § 162(a) did not permit deduction of an expense for which a taxpayer specifically is reimbursed. With respect to all other VA educational benefits, the Commissioner left his prior ruling intact. The Commissioner distinguished flight-training allowances from payments made for other educational programs, characterizing the former as a tuition reimbursement and the latter as a living stipend consisting of a level payment made without consideration of the costs incurred. Because the Commissioner did not indicate that this new ruling would be prospective only, the decision was presumed to be retroactive under 26 U.S.C. § 7805(b) (1982). Subsequently, the IRS reversed its previously held position as to general educational benefits, ruling that no veteran may deduct amounts expended for educational programs that are allocable to tax-free benefits paid by the VA. Rev. Rul. 83-3, 1983-1 I.R.B.10. This later ruling, however, was limited to prospective application only. The IRS audited appellees’ 1977 return, reduced their deduction by the amount received from the VA, and assessed a deficiency of $4,525. On December 30, 1981, appellees paid this amount. After the Commissioner denied their claim for refund, appellees instituted this suit in district court. On cross-motions for summary judgment, the court ruled that plaintiffs were entitled to the refund because the IRS had abused its discretion by retroactively denying a deduction to taxpayers who received educational benefits for flight-training courses while not disallowing the same" }, { "docid": "11463400", "title": "", "text": "and different benefits to both the public and its private members,” it is not “ ‘primarily’ devoted to the common good as required by even the most liberal reading of § 501(c)(4).” Contracting Plumbers Coop. Restoration Corp. v. United States, 488 F.2d 684, 687 (2nd Cir.1973). 3. Retroactive Revocation Under Treasury Regulation 601.201(n)(6) The IRS may prospectively revoke an organization’s tax-exempt status upon a determination that the organization no longer qualifies as exempt. 26 C.F.R. § 601.201(n)(6)(i) (2006) (“An exemption ruling or determination letter may be revoked or modified by a ruling or determination letter addressed to the organization .... ”). If the organization contests this conclusion after paying taxes due and is unsuccessful in pursuing a refund claim with the IRS, it may file a refund suit in federal court. See generally 15 Mertens, Law of Federal Income Taxation § 58:4 (2008). Such a refund suit is a de novo proceeding. Vons Cos., Inc. v. United States, 51 Fed.Cl. 1, 5 (Fed.Cl.2001) (“We begin with the axiomatic principle that tax refund cases are de novo proceedings.” (citing Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932))). Accordingly, the court’s determination of the plaintiffs tax liability in that context “does not require (or even ordinarily permit) th[e] court to review findings or a record previously developed at the administrative level.” Id. at 6. When the IRS seeks to revoke tax-exempt status retroactively, however, it faces certain restrictions. Under 26 U.S.C. § 7805(b), the Secretary of Treasury “may prescribe the extent, if any, to which any ruling (including any judicial decision or any administrative determination other than by regulation) relating to the internal revenue laws shall be applied without retroactive effect.” 26 U.S.C. § 7805(b)(8) (2006). The Supreme Court has held that the IRS Commissioner has broad discretion, under section 7805(b) and its predecessor, to decide whether to revoke a ruling retroactively and that such a determination is reviewable by the courts only for abuse of that discretion. Automobile Club of Michigan v. Comm’r, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); see" }, { "docid": "4674984", "title": "", "text": "question before the Court is whether these Admissions and the other evidence presented resolve material facts such that only issues of law remain. In summary, the government has made an appropriate record for summary judgment. B. Government’s arguments The government argues that it is not limited to the grounds identified by the IRS in the TAM or the compliance document filed with the Court in October 1992 because this is a de novo proceeding. Instead, the government contends, its Statement of Material Facts is the basis for its motion. The government asserts that it may rely on the facts underlying issues 8, 9, and 10 of the TAM, even though the IRS determined that these issues were not a basis for revocation of AFI’s tax-exempt status. Issues 8 through 10 dealt specifically with transactions between AFI and Raven’s Hollow that occurred prior to January 1, 1970. The IRS’ conclusion regarding these pre-1970 transactions reads as follows: Inasmuch as section 503 of the Code, as it applies to organizations described in section 501(c)(3), was made inapplicable by virtue of the provisions of the Tax Reform Act of 1969, we have concluded that it is not applicable to the facts presented. TAM at ll. AFI asserts, however, that because the Government failed to plead any new grounds, it has waived its rights to assert such new grounds. See Aero Rental v. Commissioner, 64 T.C. 331, 338, 1975 WL 3043 (1975) (issues raised for first time by brief not properly before the court; by not raising new issues, issues are waived). Specifically, AFI argues, issues 8 through 10 and the “potential for abuse” argument involving AFI and Raven’s Hollow, which AFI contends was raised for the first time in summary judgment, cannot be relied upon by the government because the IRS did not rely upon these as a basis for revocation. The IRS based its decision to revoke AFI’s exempt status in part on the conclusion that AFI was serving the private interests of its founder and executive director, Dr. Head. See TAM at 10-11. While the IRS ultimately did not rely on" }, { "docid": "20744515", "title": "", "text": "Cleveland Trust Co. v. United States, 421 F.2d 475, 481-482 (6th Cir. 1970); Geurkink v. United States, 354 F.2d 629, 632 (7th Cir. 1965); Schwager v. Commissioner, 64 T.C. 781, 787 (1975); Collins v. Commissioner, 61 T.C. 693, 701 (1974); Crocker v. United States, 323 F. Supp. 718, 722-723 (N.D. Miss. 1971). See also sec. 601.601(d)(2)(i)(b), Statement of Procedural Rules; Rev. Proc. 89-14, 1989-1 C.B. 814 (definition of a revenue procedure). We have recognized, however, that an abuse of discretion can occur where the Commissioner fails to observe self-imposed limits upon the exercise of his discretion, provided he has invited rebanee upon such limitations. Elkins v. Commissioner, 81 T.C. 669, 677 (1983); Presbyterian & Reformed Publishing Co. v. Commissioner, 79 T.C. 1070, 1089 (1982), revd. on other grounds 743 F.2d 148 (3d Cir. 1984); Lansons, Inc. v. Commissioner, 69 T.C. 773, 786-787 (1978), affd. 622 F.2d 774 (5th Cir. 1980). See also Beneficial Foundation, Inc. v. United States, 8 Cl. Ct. 639 (1985) (Commissioner’s exercise of discretion reviewed for compli- anee with provisions of revenue procedure stating the manner in which such discretion would be employed). In Lansons, Inc. v. Commissioner, supra, we held that the Commissioner could not exercise his power under section 7805(b) to retroactively revoke a ruling because his action amounted to an abuse of discretion. Our holding was based on the fact that none of the circumstances set forth in the statement of procedural rules and a revenue procedure, and identified by the Commissioner as warranting such action, were found to exist. Lansons, Inc. v. Commissioner, supra at 787. We held that the Commissioner must observe his published standards on the basis of his longstanding practice of assuring taxpayers that they may rely on rulings issued to them, absent a change in facts. Lansons, Inc. v. Commissioner, supra at 786. The reason the Commissioner publishes a statement of the circumstances under which a ruling will be retroactively revoked “is to provide some certainty for taxpayers and to permit them to rely upon respondent’s rulings. Without such assurance there would be little reason to obtain a ruling.”" }, { "docid": "4682510", "title": "", "text": "operation of an organization, revocation or modification will ordinarily take effect as of the date of such material change. In cases where a ruling or determination letter was issued in error or is no longer in accord with the holding of the Service, retroactivity of the revocation or modification ordinarily will be limited to a date not earlier than that on which the original ruling or determination letter is modified or revoked. [Emphasis added.] Respondent argues that by 1969, petitioner’s operations had changed so materially as to be inconsistent with exemption. It is difficult to pinpoint the year in which the disqualifying change occurred because of its gradual nature, and we are aware that a retroactive revocation will not be disturbed in the absence of an abuse of discretion. Automobile Club v. Commissioner, supra at 184. Where, however, the Commissoner has chosen, in the exercise of his wide discretion, to impose discretionary limits, he must abide by those limits. See Lansons, Inc. v. Commissioner, 622 F.2d 774, 778 (5th Cir. 1980), affg. 69 T.C. 773 (1978); cf. Pittsburgh Press Club v. United States, 615 F.2d 600, 606 (3d Cir. 1980). In his Rev. Proc. 80-25, the Commissioner has limited the sweep of retroactivity in cases involving a material change to the date of such change. We do not think that such a material change occurred in 1969, and hold that respondent abused his discretion in making the revocation effective in 1969. In 1969, the religious book sales activities were run out of Charles’ home; were just beginning to involve the use of the truck garage purchased by Charles personally; were manned by volunteers; and, even so, produced only a 3-percent net profit margin. Moreover, petitioner received contributions ($11,785) nearly four times as great as its net profits ($3,105) from the sale of religious books. To agree that these facts constitute \"material changes, inconsistent with exemption” would, we think, imply that small profits on sales of goods alone warrant revocation of exempt status, a position we have heretofore rejected. Pulpit Resource v. Commissioner, 70 T.C 594 (1978); Saint Germain Foundation v." }, { "docid": "11463416", "title": "", "text": "stop there. Do you believe that’s consistent with'— A: Definitely. Q: Is that consistent with what activity they engaged in? A: Let me read it again. (Pause in the proceedings.) Yes, that’s- Q. that’s consistent with? A. What they’re doing. Q. With what they’re doing? A. Yes. Q. And the next sentence: “Through the establishment of DLC, these officials and others with similar interests and goals expected to improve the overall contribution of democratic leaders, in the federal and state government, to national policy debate, and to urge upon both the party and the general public new and innovative approaches to policy.” Is that consistent with what you reviewed their actual activities to be? A. Sure, sure. % ‡ # ❖ ‡ Q. So is it fair to say that the DLC accurately described the activity it was going to engage in? A. It sure is. Id. at 57-58. The Government notes, however, that Agent Smith testified that he did not receive all the information that he requested in his examination. Def.’s Opp. Br. at 21. But Agent Smith spent over 400 hours over the course of three years reviewing materials provided to him regarding the DLC. Id. at 76. His testimony is entitled to some weight. In any event, as noted above, Agent Smith’s testimony simply confirms what the record shows: the DLC acted in material conformity with, and did not otherwise omit or misstate a material fact in, its original application. Accordingly, the retroactive revocation of tax-exempt status for years 1997, 1998, and 1999 violated Treasury Regulation 601.201 and was an abuse of discretion. See Buzzetta Constr., 92 T.C. at 651 (“ ‘[WJhen a taxpayer has put substantial good faith reliance upon an IRS determination of its tax position and when a retroactive revocation of that determination will produce an inordinate adverse effect, the Commissioner’s failure to abide strictly by his own regulations limiting retroactive revocation of a favorable ruling amounts to an abuse of discretion.’ ”) (quoting Lansons, Inc. v. Comm’r, 622 F.2d 774 (5th Cir.1980)) (emphasis added); Thomas G. Faria Corp., 1977 WL 3812, **11-12, 1977" }, { "docid": "20744517", "title": "", "text": "Pulver Roofing Co. v. Commissioner, 70 T.C. 1001, 1018, 1022 (1978) (Drennen, J., dissenting). In Presbyterian & Reformed Publishing Co. v. Commissioner, supra, we held the retroactive revocation of an exemption letter to be an abuse of discretion where conditions for such action spelled out in a revenue procedure were not met. Presbyterian & Reformed Publishing Co. v. Commissioner, supra at 1089. We reasoned that where the Commissioner “has chosen, in the exercise of his wide discretion, to impose discretionary limits, he must abide by those limits.” Presbyterian & Reformed Publishing Co. v. Commissioner, supra at 1089. In Elkins v. Commissioner, supra, the Commissioner announced that a proposed amendment to a regulation would not be applied under certain specified circumstances. When the regulations subsequently were promulgated, the Commissioner retroactively attempted to change the interpretation set forth in the prior announcement. We held that the Commissioner abused his discretion under section 7805(b), at least with respect to taxpayers who reasonably relied upon the announcement. Elkins v. Commissioner, 81 T.C. at 677, 679-681. We stated that the Commissioner’s discretion to “apply his regulations retroactively is very broad, but its counterpart is the responsibility to provide taxpayers with adequate guidance as to the extent to which his power will be exercised, or at the very least to avoid misleading them.” Elkins v. Commissioner, 81 T.C. at 681. We find that the same considerations which guided our reasoning in Elkins, Presbyterian, and Lansons are present in the instant case. Respondent published Rev. Proc. 80-51, supra, as a guide to the exercise of his broad discretionary powers to consent to accounting method changes under section 446(e) and to permit spreading the adjustments required under section 481(a) over more than 1 taxable year. See sec. 1.446-l(e)(3)(ii), Income Tax Regs.; sec. 1.481-5, Income Tax Regs. The stated aim of the revenue procedure is to “encourage compliance with proper methods of accounting when a taxpayer is determining taxable income in accordance with one or more methods of accounting that are proscribed by the Code, regulations, decisions of the Supreme Court of the United States, revenue rulings, and revenue" }, { "docid": "18714329", "title": "", "text": "year 1974. The critical question remains whether the Commissioner abused his discretion when in 1978 he retroactively revoked his 1962 ruling effective December 1, 1974. II The Commissioner has authority to revoke retroactively a ruling. See I.R.C. § 7805(b); Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 183-84, 77 S.Ct. 707, 709-10, 1 L.Ed.2d 746 (1957). The Commissioner has limited his discretion to take such action in Statement of Procedural Rules, 26 C.F.R. § 601.201(1)(5) (1985), which provides: Except in rare or unusual circumstances, the revocation or modification of a ruling will not be applied retroactively with respect to the taxpayer to whom the ruling was originally issued or to a taxpayer whose tax liability was directly involved in such ruling if (i) there has been no misstatement or omission of material facts, (ii) the facts subsequently developed are not materially different from the facts on which the ruling was based, (iii) there has been no change in the applicable law, (iv) the ruling was originally issued with respect to a prospective or proposed transaction, and (v) the taxpayer directly involved in the ruling acted in good faith in reliance upon the ruling and the retroactive revocation would be to his detriment. Relying on the condition designated as (ii) in the rule, the Commissioner contends that retroactive revocation was permissible because the facts subsequently developed are materially different from the facts on which the ruling was based. The only change of fact that the Commissioner identifies as being material is the departure in 1972 of two salaried employees who were participants in the trust and who were not members of the prohibited group. In 1962, when the trust was established, five employees were cov ered, three of whom were members of the prohibited group. Upon the departure of the two employees in 1972, all of the participants in the trust were members of the prohibited group. The Commissioner argues: “[Tjhis change constituted a material change that warranted the Commissioner’s retroactive revocation of his prior ruling.” Brief at 29. The Tax Court, accepting the Commissioner’s reason for retroactively revoking the" } ]

[ { "docid": "23684218", "title": "", "text": "that the lessor had a claim of $88,666.39 against the debtor, limited to the rent up to November 4, 1933, the date of the second lease. He refused to grant anything more because he concluded that when the lessor allowed the earnings of the Lake Theatre to be pooled with1 those of the Hippodrome Theatre, it imposed-a risk upon the debtor which as guarantor it had not accepted. Had it not been for this, he would have granted the claim at least up to September 28, 1934, the date fixed by the court as the last day to file claims. This report the judge confirmed. There are two points at issue: First, whether the claim is valid at all under section 77B ; and, if so, whether the damages should go beyond November 4, 1933. Subdivision (b) (10) of section 77B (11 U.S.C.A. § 207(b) (10) defines as creditors in reorganization “all holders of claims of whatever character * * * including claims under executory contracts, whether or not such claims would otherwise constitute provable claims under this Act [title].” Nothing could be more comprehensive and nothing less would serve, because unless all claims can be brought within the plan, preferences will result; if the excluded claim is discharged, the rest are preferred; if it is not, it is preferred. When the petition was filed on June 8, 1934, the lessee had been bankrupt and its trustee had repudiated the lease for over a year; the debtor stood charged as guarantor for the payment of every rental as it fell due month by month; the lessee was not discharged of these, and its discharge would not have affected the guaranty anyway. The lessor had not terminated the lease; it did indeed reenter and relet, but under the provisions we have quoted, which preserved the lease. There is no legal objection to such a stipulation; how far it differs from the common covenant which allows the lessor to reenter and forfeit the term, but also to relet for the lessee’s account, we need not inquire. The important thing is that the" } ]

[ { "docid": "7266756", "title": "", "text": "on the guaranty became fixed. Consequently, liability on the guaranty is no longer contingent because all predicates to enforcement have occurred. b. Is Cobb’s claim liquidated? Section 502(c)(1) may also be employed if a debt is unliquidated. A claim is liquidated “when ... the amount due may be ascertained by computation or reference to the contract out of which the claim arises.” In re Flaherty, 10 B.R. 118, 120 (Bankr.N.D.Ill.1981). More concisely, where a debt is liquidated, only the amount of the liability and not its existence, remains a question. In re Teigen, 228 B.R. 720, 723 (Bankr.D.S.D.1998) (citing United States v. Verdunn, 89 F.3d 799, 802 (11th Cir.1996)). Debtor argues that its debt is unliquidated because the amount Cobb owes to PBB is still unknown. The Court, though, does not find any uncertainty as to liability or amount. At the time of Kent Enterprises’ bankruptcy filing, Debtor became liable for the full amount of the Guaranty regardless of the possibility that Cobb’s debt to PBB would be forgiven. The Court therefore concludes that the debt is neither contingent nor unliquidated for purposes of § 502(c)(1). 5. Does 11 U.S.C. § 502(b)(6) cap the claim of an assignor against a guarantor of a lease? The parties also dispute the amount of the claim that is due to Cobb, if it is due at all. Section 502(b)(6) disallows a claim to the extent that: such claim is the claim of a lessor for damages resulting from the termination of a lease of real property [and] such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining tenn of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates .... 11 U.S.C. § 502(b)(6) (West 2000). Although the language of § 502(b)(6) neither includes nor excludes" }, { "docid": "23379772", "title": "", "text": "the lessee, as in this case. In re Interco, Inc., 149 B.R. 934, 940 (Bankr.E.D.Mo.1993); In re Farley, Inc., 146 B.R. 739, 745 (Bankr.N.D.Ill.1992). Section 502(b)(6) limits the landlord’s claim for damages, which is determined by state law, In re Iron-Oak Supply Corp., 169 B.R. 414, 417 (Bankr.E.D.Cal.1994) (citing Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, (1979)), as well as by the terms of the lease or contract between the parties. In re Financial News Network, Inc., 149 B.R. 348, 350 (Bankr.S.D.N.Y.1993). Section 502(b)(6) provides, in pertinent part: (b) [T]he court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that— (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) The rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; ... This provision is “grounded in principles of ratable distribution”; it balances the interests of landlords against those of other creditors by preventing landlords from receiving a windfall as a result of the filing of the bankruptcy petition. In re Leslie Fay Companies, Inc., 166 B.R. 802, 808 (Bankr. S.D.N.Y.1994). Section 502(b)(6) is designed to compensate a landlord for the loss suffered upon termination of a lease, while not permitting large claims for breaches of long-term leases, which would prevent other general unsecured creditors from recovering from the estate. In re Atlantic Container Corp., 133 B.R. 980, 985 (Bankr.N.D.Ill.1991). The legislative history of this provision indicates that it was considered equitable to limit the lessor’s claims. Historically, the limitation on allowable claims of lessors of real property was based" }, { "docid": "18578600", "title": "", "text": "Bankruptcy Code. In re Burke, 76 F.Supp. 5 (S.D.Cal.1948); Urban Properties v. Benson, 116 F.2d 321 (1940). The landlord’s right to set-off the security deposit with the tenant’s obligations under the lease agreement is established by Section 553 of the Bankruptcy Code. Section 553 creates a right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case against a claim of such creditor against the debtor that arose before the commencement of the case. Since the landlord’s claim for damages is a pre-petition claim, it is a mutual debt which can be offset by the security deposit. This court must determine the amount of damages that can be allowed to be set-off by the security deposit. Section 502 of the Bankruptcy Code was created and codified the holding in the controlling case of Oldden v. Tonto Realty Corp., 143 F.2d 916 (2d Cir. 1944). Section 502(a)(7) provides: (7) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates; This section is designed to compensate the landlord for his loss while not permitting a claim so large as to prevent other general unsecured creditors from recovering a dividend. As in Oldden, the landlord is allowed a claim for his total damages, as limited under sec. 502(a)(7). His claim will be divided into a secured portion for amount covered by the security deposit and the remaining portion can be submitted as an unsecured claim. H.R.Rep. No. 595, 95th Cong., 1st Sess. 353 (1977); S.Rep. No. 989, 95th Cong., 2nd" }, { "docid": "4605754", "title": "", "text": "reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates. 11 U.S.C. § 502(b)(6). The language of § 502(b)(6) does not expressly include or exclude from its application claims of a landlord in the Chapter 11 case of a lease guarantor. The parties have not cited any Eleventh Circuit cases on this issue, and the only Code case on this issue cited by the parties is In re Rodman, 60 B.R. 334 (Bankr.W.D.Okla. 1986). Rodman involved a ten year lease, and the tenant had also been in bankruptcy and had rejected the lease after the lease' had been in effect for less than a year. The total amount remaining due under the lease was $4.8 million, and the claim against the tenant in its bankruptcy had been limited under § 502(b)(6) to $700,-000.00. The Court limited the claim on the guaranty to the amounts described in 11 U.S.C. § 502(b)(6), finding that to allow the creditor its full claim would consume a substantial part of the property of the estate, while it could mitigate its damages by letting the property again. The Court cited the case of Oldden v. Tonto Realty Corp., 143 F.2d 916 (2nd Cir.1944) for the proposition that allowance of landlords’ claims in full did not seem appropriate, since other creditors would suffer proportionately and the claims themselves would often be disproportionate in amount to any damage suffered. Noting that a broad aim of the bankruptcy laws was to provide for as equitable a distribution of assets as is consistent with the type of claim involved, the court concluded that “considering the type of claim involved here equity, if not the literal language of the statute, requires that the limitations pertinent to rent claims" }, { "docid": "23092425", "title": "", "text": "S.Ct. 1673, 1677, 68 L.Ed.2d 80 (1981). The language of section 502(b)(6) provides: § 502. Allowance of claims or interests (b) Except as provided ..., if [a party’s] objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that— (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates;.... 11 U.S.C. § 502(b)(6) (emphasis added). Section 502(b)(6) is not difficult to apply when a lease does not make rent payable in arrears. It limits a lessor’s claim to actual past damages for unpaid rent due under the lease (the meaning of which is the subject of this appeal), § 502(b)(6)(B), plus a maximum, of one year or 159? (not to exceed three years) for the loss of future rent. § 502(b)(6)(A). The problem arises when lease payments are payable in arrears. The term “due” in “any unpaid rent due under such lease” is not defined in the Bankruptcy Code, and has two possible meanings. “It is sometimes used to express the mere state of indebtment, and then is an equivalent to owed, or owing; and it is sometimes used to express the fact that the debt has become payable.” United States v. State Bank of North Carolina, 31 U.S. (6 Pet.) 29, 36, 8 L.Ed. 308 (1832). The question then is whether Congress intended to give lessors damages for unpaid" }, { "docid": "18534712", "title": "", "text": "(Response, p. 2, Doc. No. 476). The responses filed raise issues not properly before the Court at this time, and the Court will only address the following issue presented in the Objection. ISSUE DOES SECTION 502(b)(6) OF THE BANKRUPTCY CODE, 11 U.S.C. § 502(b)(6), LIMIT THE CLAIMS OF LESSORS AGAINST DEBTORS FOR DAMAGES RESULTING FROM TERMINATION OF A LEASE OF REAL PROPERTY WHEN THE CLAIM IS BASED ON A GUARANTY OF THE LEASE? CONCLUSIONS OF LAW After a review of the case law addressing the issue at hand, this Court concludes that section 502(b)(6) applies to limit a claim against a debtor who has guaranteed a lease. The weight of authority supports limiting such claims and the case law holding otherwise involves unique facts not present in this case. Section 502(b)(6) provides, in pertinent part, that the Court shall allow a claim in its full amount “except to the extent that— (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates. 11 U.S.C. § 502(b)(6). The purpose of the claim limitation in section 502(b)(6) is “to compensate the landlord for his loss while not permitting a claim so large ... as to prevent other general unsecured creditors from recovering a dividend from the estate.” 3 Collier on Bankruptcy para. 502.02(7) at p. 502-54 (15th ed. 1991) [citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 353 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 63 (1978)] U.S.Code Cong. & Admin.News 1978, 5787, 5849, 6309; Vause v. Capital Poly Bag, Inc., (In re Vause), 886 F.2d 794, 801-802 (6th Cir.1989). Current" }, { "docid": "1078142", "title": "", "text": "all other similar creditors were paid. It was equitable for the bankruptcy court to order interest in this case and we will affirm that order. III. Computation of Claim: “Without Acceleration” Sunbeam-Oster also asserts that the bankruptcy court erred by failing to reduce the amount of Lincoln Liberty’s claim to net present value when determining “the rent reserved by such lease, without acceleration” under 11 U.S.C. § 502(b)(6). We disagree. Section 502(b)(6) provides a cap on claims which landlords may bring for damages resulting from termination of a lease of real property. Section 502 provides that when objections to a claim are made, the court must determine the amount of the claim as of the date of the filing of the petition, and shall allow the claim in that amount, except to the extent that (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed 3 years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates.... 11 U.S.C. § 502 (emphasis added). This subsection serves to cap a landlord’s claim for damages resulting from termination of a lease. In § 502 it provides that the amount of the cap is to be determined by calculating the rent reserved and the rent due “without acceleration.” The question we now address is the meaning of the word “acceleration.” The bankruptcy court interpreted “acceleration” to have the meaning it commonly carries in leases, i.e., that all rent payments become immediately due and payable upon commission of a material breach by the lessee. Under this interpretation, the rent reserved and due is calculated without application of any clause in the lease providing for acceleration." }, { "docid": "13836744", "title": "", "text": "and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates; . . . . Debtor argues that the limitation of Section 502(b)(6) clearly applies to guarantors of leases. Claimants argue that the plain language of Section 502(b)(6) caps a lessor’s damages against a tenant only, and not against a guarantor. III. Discussion Section 502(b)(6) applies a cap to the “claim of a lessor for damages resulting from the termination of a lease of real property ...” The discussion here concerns the question of whether the lessor’s damages against a guarantor of a lease are to be capped, when both the tenant and the guarantor are Chapter 11 debtors. Section 502 of the Bankruptcy Code governs the allowance of claims or interests. “Subsection (b) prescribes the grounds on which a claim may be disallowed. The court will apply these standards if there is an objection to a proof of claim.” S.Rep. 95-989, 95th Cong., 2d Sess. 62, reprinted in 1978 U.S.C.C.A.N. 5787, 5848. Section 502(b)(6) applies a cap to the “claim of a lessor for damages resulting from the termination of a lease of real property ...” “The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). On its face, Section 502(b)(6) neither includes nor excludes guarantors from the statutory limit on damages. Rather, the statute is directed to the limitation of the amount of a lessor’s damages that may be recovered from a bankruptcy estate, when the damages arise from the termination of a lease The result is not to limit the liability of a particular entity, but to limit the amount of damages the" }, { "docid": "7266757", "title": "", "text": "debt is neither contingent nor unliquidated for purposes of § 502(c)(1). 5. Does 11 U.S.C. § 502(b)(6) cap the claim of an assignor against a guarantor of a lease? The parties also dispute the amount of the claim that is due to Cobb, if it is due at all. Section 502(b)(6) disallows a claim to the extent that: such claim is the claim of a lessor for damages resulting from the termination of a lease of real property [and] such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining tenn of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates .... 11 U.S.C. § 502(b)(6) (West 2000). Although the language of § 502(b)(6) neither includes nor excludes claims of a lessor against a guarantor of a lease, case law strongly indicates that the cap applies to guarantors of leases in bankruptcy, as well as lessees. See In re Clements, 185 B.R. 895, 901 (Bankr.M.D.Fla.1995) (“Although the language of § 502(b)(6) does not expressly mention guarantors, case law has firmly established that it applies to guarantors of leases in bankruptcy, as well as lessees.”); Arden v. Motel Partners (In re Arden), 176 F.3d 1226, 1227 (9th Cir.1999) (“We hold that the Cap, which limits a lessor’s claim for damages resulting from termination of a lease, is applicable to a debtor/guarantor.”); Oldden v. Tonto Realty Corp., 143 F.2d 916, 923 (2d Cir.1944) (“[W]here a guarantor or surety of the lease ... is itself in process of reorganization ... the landlord’s claim must be limited in the same way as if the claim were against the estate of the bankrupt estate of the lessee.”). But see In re Danrik, 92 B.R. 964, 971 (Bankr.N.D.Ga.1988) (holding that § 502(b)(6) did not apply to a guarantor of" }, { "docid": "13015104", "title": "", "text": "counters that capping his claim still would award him $863,937.67. These disparate views are due to conflicting interpretations of § 502(b)(6). A. Section 502(b)(6) caps a landlord’s claim in bankruptcy for damages resulting from the termination of a real property lease. Under § 502(b)(6), a landlord-creditor is entitled to rent reserved from the greater of (1) one lease year or (2) fifteen percent, not to exceed three years, of the remaining lease term. The cap operates from the earlier of the petition filing date or “the date on which [the] lessor repossessed or the lessee surrendered, the leased property.” The landlord also retains a claim for any unpaid rent due under such lease prior to the earlier of those dates. This language reflects Congress’s intent to limit lease termination claims to prevent landlords from receiving a windfall over other creditors. See H.R.Rep. No. 95-595, at 353 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6309 (“[The cap] limits the damages allowable to a landlord of the debtor.... It is designed to compensate the landlord for his loss while not permitting a claim so large (based on a long-term lease) as to prevent other general unsecured creditors from re covering a dividend from the estate. The damages a landlord may assert from termination of a lease are limited.... ”); 4 Collier on Bankruptcy, § 502.03 at 7a (“[The cap is] designed to compensate the landlord for his loss while not permitting a claim so large as to prevent other general unsecured creditors from recovering a dividend from the estate.”). Just over two years into the parties’ ten-year lease, PPIE breached the leasehold agreement by failing to pay rent. Solow gave PPIE ten days to cure its breach. When PPIE did not respond, Solow initiated termination proceedings and filed suit seeking damages for the term of the lease. Since Solow terminated the lease long before PPIE filed its bankruptcy petition, the Bankruptcy Court correctly fixed the date on which Solow accepted PPIE’s surrender of the leased property as the starting point for its § 502(b)(6) calculation. B. Once the § 502(b)(6) calculation is complete," }, { "docid": "1141127", "title": "", "text": "Landlords’ pre-petition claims for physical damage to the Premises and for repair and maintenance expenses constitute claims for “future rent” or “lease termination damages, ” which are subject to a cap or ceiling under § 502(b)(6) of the Bankruptcy Code? 1. Background Under § 365(a) of the Bankruptcy Code, a trustee or debtor-in-possession may, sub ject to court approval, assume or reject any unexpired lease of the debtor. 11 U.S.C. §§ 365(a); 1107(a). Rejection of a lease constitutes a breach of the lease. 11 U.S.C. § 365(g). The Lessor of a rejected lease may terminate the lease and assert a claim against the bankruptcy estate for any damages suffered as a result of the termination. In re Emple Knitting Mills, Inc., 123 B.R. 688 (Bankr.D.Me.1991). This claim is treated as if it arose before the filing of the bankruptcy petition. 11 U.S.C. § 502(g). A Lessor’s claim for damages for termination of an unexpired lease is subject to a statutory cap. Section 502(b)(6) of the Bankruptcy Code provides that “the claim of a lessor for damages resulting from the termination of a lease of real property” is limited to: (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates. 11 U.S.C. § 502(b)(6). According to the legislative history, § 502(b)(6) is designed to compensate a landlord for the loss suffered upon termination of a lease, while not permitting large claims for breaches of long-term leases to prevent other general unsecured creditors from recovering from the estate. S.Rep. No. 95-989, 95th Cong., 2d Sess. 63 (1978); H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 353 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5849, 6308. 2. The Parties’ Arguments The Trustee argues that the Landlords’ claims" }, { "docid": "23379771", "title": "", "text": "the leased premises. Thus, their maximum allowable claim for damages, calculable upon “rent reserved,” should be greater than that allowed by the bankruptcy court, they contend. If the various expenses are not determined to be “rent reserved,” then Appellants alternatively contend that damages arising from nonrental covenants are not subject to the statutory cap contained in § 502(b)(6)(A). The Debtors disagree, and contend that only expenses designated as “additional rents” under the lease terms may be included in “rent reserved” for purposes of the calculation in § 502(b)(6)(A). They further contend that damages resulting from termination of a lease of real property encompass all aspects of the lessee’s nonperformance of obligations under the lease. “Rent Reserved” Under § 502(b)(6)(A) It is well settled that a lessor is entitled to assert a general unsecured claim for damages resulting from a debtor’s rejection of a lease. §§ 365(g)(1), 502(g). Rejection of a lease in bankruptcy constitutes a breach of the lease. § 365(g). This claim is equally effective against a debtor as lessee or as guarantor of the lessee, as in this case. In re Interco, Inc., 149 B.R. 934, 940 (Bankr.E.D.Mo.1993); In re Farley, Inc., 146 B.R. 739, 745 (Bankr.N.D.Ill.1992). Section 502(b)(6) limits the landlord’s claim for damages, which is determined by state law, In re Iron-Oak Supply Corp., 169 B.R. 414, 417 (Bankr.E.D.Cal.1994) (citing Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, (1979)), as well as by the terms of the lease or contract between the parties. In re Financial News Network, Inc., 149 B.R. 348, 350 (Bankr.S.D.N.Y.1993). Section 502(b)(6) provides, in pertinent part: (b) [T]he court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that— (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) The rent reserved by such lease, without acceleration, for the greater of" }, { "docid": "7266758", "title": "", "text": "claims of a lessor against a guarantor of a lease, case law strongly indicates that the cap applies to guarantors of leases in bankruptcy, as well as lessees. See In re Clements, 185 B.R. 895, 901 (Bankr.M.D.Fla.1995) (“Although the language of § 502(b)(6) does not expressly mention guarantors, case law has firmly established that it applies to guarantors of leases in bankruptcy, as well as lessees.”); Arden v. Motel Partners (In re Arden), 176 F.3d 1226, 1227 (9th Cir.1999) (“We hold that the Cap, which limits a lessor’s claim for damages resulting from termination of a lease, is applicable to a debtor/guarantor.”); Oldden v. Tonto Realty Corp., 143 F.2d 916, 923 (2d Cir.1944) (“[W]here a guarantor or surety of the lease ... is itself in process of reorganization ... the landlord’s claim must be limited in the same way as if the claim were against the estate of the bankrupt estate of the lessee.”). But see In re Danrik, 92 B.R. 964, 971 (Bankr.N.D.Ga.1988) (holding that § 502(b)(6) did not apply to a guarantor of a lease where unsecured creditors were fully provided for in the plan and debtor had escrowed more than the amount of creditor’s claim). The main crux of Debtor and Cobb’s dispute, however, is whether § 502(b)(6) applies to assignors of leases. Cobb argues that the section has no application since it is not a lessor of property. The unique fact pattern of this case raises a question of first impression for this Court. Although it is a settled matter that a cap can apply to a lessor’s claim against a guarantor, it is unclear whether a cap can also be applied to an assignor’s claim against a guarantor. This issue must be resolved by looking at the legislative history of the provision. The rationale of the legislature was succinctly explained by the Second Circuit: When one claimant is a landlord holding a long-term lease, its single unsecured claim ... of future rent could devour so much of the debtor’s estate that only crumbs could be left for the other unsecured creditors. Recognizing the potentially distorting" }, { "docid": "6500971", "title": "", "text": "years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property plus (B) any unpaid rent due under such lease without acceleration, on the earlier of such dates.... 11 U.S.C. § 502(b)(6). This section is “designed to compensate the landlord for his loss while not permitting a claim so large ... as to prevent other general unsecured creditors from recovering a dividend from the estate.” H.R. Rep. No. 595, 95th Cong., 1st Sess. 353 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 63 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5849, 6309; see also In re Multech Corp., 47 B.R. 747, 751 (Bankr.N.D.Iowa 1985). Moreover, the legislative comments state that the landlord “will not be permitted to offset his actual damages against his security deposit and then claim for the balance under this paragraph. Rather, his security deposit will be applied in satisfaction of the claim that is allowed under this paragraph.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 354 (1977); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 63-64 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5849, 5850, 6310. Colliers states in this regard: to the extent that a landlord will have a security deposit in excess of the amount of the claim allowed under section 502(b)(6), the excess will be turned over to the trustee to be administered as part of the debtor’s estate. To the extent that the security deposit is less that the amount of the allowable claim as provided for by section 502(b)(6), the security deposit will be applied in satisfaction of the claim thus allowed. 3 Collier on Bankruptcy ¶ 502.02 at 502-62.1 (15th ed. 1989). In calculating CMC’s allowable claim under section 502(b)(6), the maximum amount is to be calculated as follows: the rent for the first year after the petition was filed is based on the sum of $4,000.00 per month for six months plus $4,375.00 per month for six months, which totals $50,250.00. This total" }, { "docid": "18534713", "title": "", "text": "exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates. 11 U.S.C. § 502(b)(6). The purpose of the claim limitation in section 502(b)(6) is “to compensate the landlord for his loss while not permitting a claim so large ... as to prevent other general unsecured creditors from recovering a dividend from the estate.” 3 Collier on Bankruptcy para. 502.02(7) at p. 502-54 (15th ed. 1991) [citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 353 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 63 (1978)] U.S.Code Cong. & Admin.News 1978, 5787, 5849, 6309; Vause v. Capital Poly Bag, Inc., (In re Vause), 886 F.2d 794, 801-802 (6th Cir.1989). Current and pre-Code case law support the conclusion that section 502(b)(6) applies to claims against debtor-guarantors. The court in In re Rodman, 60 B.R. 334 (Bankr.Okla.1986) held that section 502(b)(6) applies to claims based on lease guaranties. In Rodman, the debtor was a guarantor for a lease rejected by a related debtor lessee. The Rodman court, relying on Oldden v. Tonto Realty Corp., 143 F.2d 916, 920 (2d Cir.1944) and other pre-Bank-ruptcy Code case law, reasoned that the “principles of rateable distribution are equally applicable in the case of a debtor-guarantor as they are in the case of a debtor-principal.” (citations omitted) Id. at 335. In Oldden, the Second Circuit ruled that a landlord must deduct the amount of security deposit held from the total claim allowable under the Bankruptcy Act rather than the larger provable claim. The Second Circuit also reviewed the history of the predecessor of section 502(b)(6) and explained the reason for the limitation on a landlord’s claim for future rents due under the lease. [Ajllowance in full of such claims did not" }, { "docid": "4606167", "title": "", "text": "one year, or 15%, not to exceed 3 years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) Any unpaid rent due under such lease without acceleration, or the earlier of such dates. Section 502(b)(6) was designed to compensate a landlord for the loss suffered upon termination but at the same time limit the recovery to a reasonable amount that would not prevent other creditors from recovering from the estate. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 353 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6309. Although some courts take the position, and the trustee so argues, that the damages spoken of in section 502(b)(6) encompass virtually any cost or expense arising in consequence of a breach, others take a more measured view opining that the section is intended to limit only those damages which a lessor would have avoided but for the lease termination. In re Atlantic Container Corp., 133 B.R. 980, 987 (Bankr.N.D.Ill.1991); Contra In re Storage Technology Corp., 77 B.R. 824 (Bankr.Colo.1986). This court believes that the correct application is as expressed by Atlantic Container Corp., supra. The statute applies only to the time period following termination (as opposed to claims arising out of pre-termination arrearages) and only includes damages anticipated to result from a tenant’s failure to fill out the lease term. It does not address damages wholly collateral to the termination event — such things as waste, destruction or removal of leasehold property. A claim can not exceed the greater of one year, or 15%, not exceeding three years of the time remaining in the lease calculated from the earlier of the date of the filing and the date surrendered. See generally, In re Allegheny Intern., Inc., 136 B.R. 396 (Bankr.W.D.Pa.1991); In re McLean Enters., Inc., 105 B.R. 928 (Bankr.E.D.Mo.1989). As with any claim for damages arising out of the breach of a lease, a claim for damages under section 502(b)(6) is subject to mitigation" }, { "docid": "6500970", "title": "", "text": "S.Ct. 292, 81 L.Ed. 324 (1937); In re Goldblatt Bros., Inc., 66 B.R. 337, 345 (Bankr.N.D.Ill.1986). The purpose of section 502(b)(6) and its predecessors is two-fold. First, it ensures that other creditors recover more than the minimal portion of their claims they would receive if landlord claims resulting from termination of leases were allowed in full. Second, it ensures that lessors obtain ■ a reasonable portion of the damages they suffered as a result of an abandonment of a lease by a debtor. Goldblatt Bros., Inc., 66 B.R. at 346. Section 502 was created and codified the holding in the controlling case of Oldden v. Tonto Realty Corp., 143 F.2d 916 (2d Cir.1944). Section 502(b)(6) provides that a claim is to be allowed in full except as follows: (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease or real property, such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property plus (B) any unpaid rent due under such lease without acceleration, on the earlier of such dates.... 11 U.S.C. § 502(b)(6). This section is “designed to compensate the landlord for his loss while not permitting a claim so large ... as to prevent other general unsecured creditors from recovering a dividend from the estate.” H.R. Rep. No. 595, 95th Cong., 1st Sess. 353 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 63 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5849, 6309; see also In re Multech Corp., 47 B.R. 747, 751 (Bankr.N.D.Iowa 1985). Moreover, the legislative comments state that the landlord “will not be permitted to offset his actual damages against his security deposit and then claim for the balance under this paragraph. Rather, his security deposit will be applied in satisfaction of the claim that is allowed" }, { "docid": "13015122", "title": "", "text": "The Atlanta-Stewart Partners and Seasons Apartments courts did not discuss the plain language of § 1124, at issue here, focusing instead almost exclusively on the statute's legislative history. . Section 502(b)(6) provides: [I]f an objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim ... and shall allow such claim in such amount, except to the extent that if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds - (A) the rent reserved by such lease, without acceleration, for the greater of one year, or fifteen percent, not to exceed three years, of the remaining term of such lease, following the earlier of - (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates. 11 U.S.C. § 502(b)(6). . The landlord retains a duty to mitigate the tenant's breach, but any mitigation of damages secured by reletting the premises will offset only the landlord's overall potential recovery, and does not affect the § 502(b)(6) cap. The “overwhelming majority of courts” have held that the § 502(b)(6) statutory cap is not reduced by any amount a landlord has received by reletting the leased premises and mitigating its damages. 5th Ave. Jewelers, 203 B.R. at 381; see also In re Atl. Container Corp., 133 B.R. 980, 990 (Bankr.N.D.Ill. 1991). . In determining the final § 502(b)(6) calculation, the Bankruptcy Court should make a finding of fact as to the exact date of Solow’s termination or PPIE’s formal surrender of the leasehold agreement, and start the calculation from that point. .Solow also contends that even if he had a security deposit, and not a letter of credit, the Bankruptcy Court’s application of the security deposit rule was erroneous because he drew down the letter of credit's proceeds before the Chapter 11 filing. But the § 502(b)(6) cap" }, { "docid": "4605753", "title": "", "text": "of which period was during the first year rent-free period) OR 3. One year’s stated rent $83,421.00 RTIP disputes the applicability of § 502(b)(6), but contends that if § 502(b)(6) applied, the allowable claim would be $100,-909.14 which is the average rent for one year under the Lease. The primary issue in this dispute is whether § 502(b)(6) applies to limit a claim against a debtor who has guaranteed a lease and obtained confirmation of a Chapter 11 plan paying all other unsecured creditors in full. Section 502 of the Bankruptcy Code generally deals with the allowance of claims or interests, and § 502(b)(6) provides that if an objection to a claim is made, the court shall determine the amount of the claim as of the date of the filing of the petition and shall allow the claim in such amount, except to the extent that — (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates. 11 U.S.C. § 502(b)(6). The language of § 502(b)(6) does not expressly include or exclude from its application claims of a landlord in the Chapter 11 case of a lease guarantor. The parties have not cited any Eleventh Circuit cases on this issue, and the only Code case on this issue cited by the parties is In re Rodman, 60 B.R. 334 (Bankr.W.D.Okla. 1986). Rodman involved a ten year lease, and the tenant had also been in bankruptcy and had rejected the lease after the lease' had been in effect for less than a year. The total amount remaining due under the" }, { "docid": "13836743", "title": "", "text": "legal issue of whether Section 502(b)(6) [of Title 11] applies to limit claims against bankrupt guarantors who have guaranteed real property leases ...” See Order Relating to Briefing Schedule, December 17, 1991. II. Section 502(b)(6) Section 502(b)(6) of the Bankruptcy Code states: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim ... as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— . . . . (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds— (A) the rent reserved by such lease without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of— (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates; . . . . Debtor argues that the limitation of Section 502(b)(6) clearly applies to guarantors of leases. Claimants argue that the plain language of Section 502(b)(6) caps a lessor’s damages against a tenant only, and not against a guarantor. III. Discussion Section 502(b)(6) applies a cap to the “claim of a lessor for damages resulting from the termination of a lease of real property ...” The discussion here concerns the question of whether the lessor’s damages against a guarantor of a lease are to be capped, when both the tenant and the guarantor are Chapter 11 debtors. Section 502 of the Bankruptcy Code governs the allowance of claims or interests. “Subsection (b) prescribes the grounds on which a claim may be disallowed. The court will apply these standards if there is an objection to a proof of claim.” S.Rep. 95-989, 95th" } ]

[ { "docid": "23647401", "title": "", "text": "court said: “The evidence which lias been allowed to come before yon should have such weight as in your opinion it is entitled to under the showing that they were going to commit some other crime.” The particular language above adverted to was not excepted to, but the admission in evidence and the display of the articles and instruments to the jury were excepted to and assigned for error. We may properly look to the charge of the court for his reasons, if there given, for the admission of the questioned evidence. In the multiplication of reported cases touching the evidential effect of the possession by the accused of implements and materials adaptable to the commission of the crime in question, it will be found that some courts have admitted such facts for the consideration of the jury when such possession was more or less remote from the time and locus of the crime; but their admissibility depended upon their being connected up with or traced to the res gestae. If the articles found on the defendant had been traced to his possession prior to the burglary or theft, and there had been any evidence tending to show the presence of the defendant about the premises near to the time of the trespass, and the like, the jury might have been advised that such possession of articles and implements, if the evidence tended to show that they were probably used in executing the crime, was a circumstance for their consideration. But the mere possession 18 days after the crime and 19 miles distant from the locus, without any proof of the presence of the defendant in the locality, or the employment of such'articles in the commission of the crime, was not evidence of the defendant’s complicity, nor was it evidence “that they were going to commit some other crime.” The ability to commit a crime does not evidence the act. The mental tendency of a party to commit a crime cannot be heard in court to convict him of another offense committed long anterior to the transaction under inquiry. If" } ]

[ { "docid": "23260027", "title": "", "text": "integrity, or public reputation of judicial proceedings.” The appellate tribunal will examine the record sufficiently to determine whether such has occurred. The question placed before us in this case is whether the admission of evidence without objection, of other non-related, specific acts of criminal misconduct, was so prejudicial as to demand reversal. The normal rule, excepting possibly sex offenses, is that evidence of such acts is not admissible for the sole purpose of tending to prove the defendant committed the crime charged, i. e., to show more likelihood of guilt. The inquiry is not rejected because such evidence is irrelevant, but to the contrary, it is said to weigh too much with the jury to over-persuade them so as to prejudge one with a bad general record and so deny him fair opportunity to defend against a particular charge. It affords the jury an extraneous ethical justification for a finding of guilt. However, the doctrine above stated has not been carried so far as to exclude evidence which has a direct tendency to prove the particular crime for which the accused is indicted, thus, if relevancy can be shown on any other basis than probability of guilt from criminal disposition, such evidence is admissible with the right in the accused to a cautionary instruction if he so requests. The record discloses no such solicitation by the appellants. The common exceptions to the normal rule above stated are: (1) motive, (2) intent, (3) absence of mistake or accident, (4) underlying scheme or design embracing the commission of two or more crimes so related to each other that proof of one logically tends to establish the commission of the crime charged, (5) identity, i. e., the evidence sought to be admitted must tend to show that the person who committed the crime charged is the accused even though incidentally, the defendant is proven guilty of other crimes. Also, if the defendant attempts to prove his innocence by evidence of good reputation, the prosecution may, in rebuttal, present evidence of bad reputation, and in doing so, present evidence of specific criminal acts. The" }, { "docid": "5644795", "title": "", "text": "10 Cir., 487 F.2d 414; United States v. Kochel, 4 Cir., 416 F.2d 370 (per curiam). As a second ground for reversal it is argued that it was improper for the district court to allow the introduction of evidence of past crimes committed by appellant. The specific testimony in question was given by an accomplice in a house burglary which occurred about a year before the bank robbery at issue here. The accomplice stated that he and appellant had stolen a number of guns from the house and that appellant had retained possession of them. Some of these guns were found in or near the getaway car used in the bank robbery. Neither appellant nor the accomplice was ever charged for the offense. The evidence regarding the prior crime was admitted under Fed.R.Evid. 404(b). The rule is specifically exclusionary in one aspect only. It unequivocally and very broadly sets out recognition of the admissibility of prior crimes for other purposes including that of the establishment of identity. The issue of identity was critical here and evidence of possession of the weapons used in the robbery was highly probative of that issue. The fact that such possession was linked to a prior crime does not trigger the exclusionary aspect of the Rule because the evidence was not admitted to establish bad character as such. Nor does the fact that possession of such weapons was established as the fruit of criminal activity occurring a year before the subject crime make such evidence so remote in time as to substantially reduce its probative value. We conclude that the evidence was both material and relevant. Appellant next argues that it was plain error for the district court to omit an “interested witness instruction” in regard to the testimony of the accomplice in the weapons theft. The instruction would have informed the jury to scrutinize the accomplice’s testimony carefully because he had allegedly been promised immunity from prosecution for his testimony. Appellant cites a number of our cases holding that it is plain error to omit such an instruction in these circumstances. United States v." }, { "docid": "23332598", "title": "", "text": "the prosecution’s rebuttal witnesses tended to show the commission of offenses of a nature slightly different from those alleged in the specifications — that is, offenses which do not necessarily constitute other acts of bribery. As was aptly said by Chief Judge Parker in Lovely v. United States, 169 F2d 386 (CA4th Cir): “To bring evidence of other offenses within this rule, the test is not whether they have certain elements in common with the crime charged, but whether they tend to establish a preconceived plan which resulted in the commission of that crime.” Indeed, one scholarly writer recently took occasion to criticize the tendency of courts to seek out legal precedent on which to sustain the introduction of evidence in this field, as a substitute for demonstrating the logical relevance of the proffered evidence in the individ ual case. See, Trautman: Logical and Legal Relevancy — A Conflict in Theory, 5 Vand LR 385. Finally in this connection, the weight to be accorded the testimony in question, the probability that the triers of fact will draw the •inferences proposed, and the circumstance that the accused presented rebuttal testimony tending to explain the incidents and to justify his conduct therein are considerations of no moment whatever in assessing the relevancy of the evidence for the purpose of determining its admissibility. We thus hold that the challenged testimony in the case at bar was properly admissible to show the existence of a plan or scheme embracing the offenses for the commission of which the accused was tried. X The accused had earlier denied the occurrence of one of the incidents about which Greenbaum and Wise testified. Normally a witness — even an accused— may not be impeached by extrinsic evidence on a collateral point. However, the incident reported by the- two officers as rebuttal witnesses was not collateral, since — as we have just seen — it tended to show an overriding criminal plan of which the crimes alleged against Captain Haimson were a part. Thus, the members of the court were entitled to weigh the incident as impeaching the accused’s" }, { "docid": "23647455", "title": "", "text": "the subject of an assignment of error. Iti Commonwealth v. Williams, 2 Cush. (Mass.) 583, on a trial for burglary, a mass of burglar’s tools found in the possession of the accused were received in evidence and exhibited to the jury, though it was conceded that a portion of them were not adapted t'o the commission of the offense. Among them were pistols. It was held not error. State v. Dubois, 49 Mo. 573. Upon a charge of burglary and larceny it was shown that the door of the house had been broken open with burglar’s tools. As part of the evidence against the accused, it was shown that eight days after the crime was committed burglar’s tools were found in a trunk belonging to him, or in his possession, and the tools were produced in court and shown to the jury. It was held that the evidence was properly admitted. In Williams v. People, 196 Ill. 173, 63 N. E. 681, an express office in Chicago was broken into, a trunk broken open, and certain articles stolen. Evidence was admitted that when the accused was arrested 31 days later he had on his person a jimmy and punch, a pair of pliers, and a case knife. In People v. Gregory, 130 Mich. 522, 90 N. W. 414, it was held proper to receive evidence of the finding, more than eight months after a burglary, of burglars’ tools on a farm belonging to the mother-in-law of the accused, but which had been occupied by him alone, also of the finding of part of the stolen property in a room in a house in the city occupied by the accused and his wife, though she claimed it to be her room. As to the finding of the watch in Sorenson’s house 18 days after the burglary: The proof was clear and convincing that the watch was one of those stolen from the safe at the time of the burglary. No explanation consistent with that fact was given in defense. It is, however, queried whether it was admissible and sufficient (wholly different" }, { "docid": "21851782", "title": "", "text": "(D.C.Cir.1968) (dissent) (Supreme Court’s refusal “to come to grips with problem”; others “have avoided the problem”); cf. United States v. Jordan, 399 F.2d 610, 614 (2d Cir. July 30, 1968) (“government had a heavy burden of proving voluntary consent” to search); Carlo v. United States, 286 F.2d 841, 848 (2d Cir.), cert. denied, 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961) (search and seizure; “quantum of proof * * * not that required on a trial of the issue of guilt or innocence”) . In the case before us, the precise weight of the government’s burden may affect the decision on the motion to suppress. We are, therefore, compelled to address the question with some attention. The matter presents inherent practical and theoretical difficulties. The problem will, perhaps, be more clearly exposed by considering a number of simple hypothetical situations. (The terminology used generally follows Michael and Adler, The Trial of an Issue of Fact, 34 Colum.L.Rev. 1224, 1252 (1934) and Michael and Adler, The Nature of Judicial Proof (1931). See also, e. g., Ball, The Moment of Truth: Probability Theory and Standards of Proof, 14 Vand.L.Rev. 807 (1961); James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689 (1941)). In a civil case involving a breach of contract where defendant claims that he did not execute the agreement, the court will admit the alleged written contract if a reasonable man might find that it was signed by or on behalf of the defendant. Admissibility depends purely on the document’s meeting minimum standards of probative force. There may be mixed questions of law and fact relating to “execution” turning on whether, for example, the document was forged or whether the defendant was tricked into signing it. In determining whether the material proposition — the defendant “entered” into the contract— has been established, the jury will consider all of the admitted evidence, including the document before it. If there is some doubt about whether the defendant’s signature was forged, or whether he had authorized an agent to execute it, the jury will consider this doubt in evaluating all the lines" }, { "docid": "23647452", "title": "", "text": "in this case to show directly that Sorenson assented to the proposition at the time. There are many cases upon this subject, each turning upon its special facts and circumstances. In some it is held an assent will be presumed, in others not. Much depends upon the character of the declaration in determining whether silence gives consent. Passing the question whether Sorenson’s assent could be shown by testimony of subsequent occurrences, it is sufficient here to say that the making of the proposition in his presence and hearing was relevant as conveying information of the presence of money and jewelry in the post office at Van Meter, if for no other purpose. If it was relevant for any purpose, it is not to be rejected because irrelevant for another. In State v. Kepper, 65 Iowa, 745, 23 N. W. 301, it was said: “Tho fact that defendant knew that there was money in the house was a proper circumstance to be considered by the jury in determining whether lie is the person who broke and entered it.” Complaint is also made of the admission in evidence and exhibition to the jury of the nitroglycerin, fuses, dynamite caps, etc., found on. Sorenson and Hodge when arrested. As the question is one of admissibility and not of weight, I will pass by the emphasis put upon the fact that the arrest was 18 days after the burglary and the accused were then 19 miles distant from Van Meter. The evidences of the use of a violent explosive in the appearance of the door and lining of the safe, and the gases in the room soon after the burglary, in connection with the testimony as to the way nitroglycerin and other articles found on the accused were commonly used in forcing safes, constitute some proof that’ implements of that character were probably employed in the present case. It is said the ability to commit a crime does not evidence the act. The correct rule, however, is that physical capacity to commit a crime (Thiede v. Utah, 159 U. S. 518, 16 Sup. Ct." }, { "docid": "12083694", "title": "", "text": "was relevant, that it was highly prejudicial, and as such was improperly admitted under Fed.R.Evid. 403. As a second assignment of error, the appellants maintain that the repeated references to, and extraordinary emphasis that was placed upon, their alleged violations of civil banking regulations was a violation of their constitutional rights to due process of law under the fifth amendment. Because we conclude that the appellants’ first point of error has merit and warrants reversal, we do not reach appellants’ second point of error. The appellants argue the district court erred in allowing into evidence some 200 pages of testimony and numerous exhibits which had no bearing on the charges alleged in the indictment. To determine whether the evidence challenged by the appellants was, in fact, irrelevant, recourse must be had to the wording of the indictment. As the appellants correctly contend, under the indictment, the Government needed only to establish the existence of the Hubbard I loan, the Hubbard II loan, the Plano loan, the HLH Joint Venture loans, the representation letter signed by James Hays, and the existence of a conspiratorial relationship between James Hays, Weldon Hays, and Paul Jensen. The appellants urge that had the Government been limited to introducing only the evidence necessary to establish those facts, then the length of the trial would have been reduced substantially and the number of exhibits which were introduced would have been cut by almost one third. More importantly, the appellants contend that the introduction of such irrelevant and prejudicial evidence was reversible error. As defined by the Federal Rules of Evidence, relevant evidence is that evidence which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Evidence which meets this broad standard is known as “logically relevant” evidence. The Federal Rules of Evidence further provide that “[a]ll relevant evidence is admissible,” and that “[ejvidence which is not relevant is not admissible.” Fed.R.Evid. 402. In determining whether evidence should be admitted or excluded on" }, { "docid": "23647402", "title": "", "text": "the defendant had been traced to his possession prior to the burglary or theft, and there had been any evidence tending to show the presence of the defendant about the premises near to the time of the trespass, and the like, the jury might have been advised that such possession of articles and implements, if the evidence tended to show that they were probably used in executing the crime, was a circumstance for their consideration. But the mere possession 18 days after the crime and 19 miles distant from the locus, without any proof of the presence of the defendant in the locality, or the employment of such'articles in the commission of the crime, was not evidence of the defendant’s complicity, nor was it evidence “that they were going to commit some other crime.” The ability to commit a crime does not evidence the act. The mental tendency of a party to commit a crime cannot be heard in court to convict him of another offense committed long anterior to the transaction under inquiry. If he declined to put in issue his character, the prosecution cannot attack it in such fashion. Even evidence of the commission of another offense, at such remote date, even if allied in character to the one under investigation, is inadmissible. Rex v. Birdseye, 4 Carr. Payne, 386; State v. Renton, 15 N. H. 169; Commonwealth v. Wilson, 56 Mass. 590; State v. Meyers, 82 Mo. 558, 52 Am. Rep. 389. This rule, it is true, admits of exceptional instances, as where the subsequent act is so related to its antecedent in character and localitjr as to aid in identifying the actor in both by the connection tending to show “that he who committed the one must have done the other.” Shaffner v. Commonwealth, 72 Pa. 60, 65, 13 Am. Rep. 649; State v. La Page, 57 N. H. 245, 289, 24 Am. Rep. 69; Farris v. People, 129 Ill. 521, 21 N. E. 821, 4 L. R. A. 582, 16 Am. St. Rep. 283; State v. Raymond, 53 N. J. Law, 260, 21 Atl. 328;" }, { "docid": "22863360", "title": "", "text": "a case might be to arouse the jury’s passions to a point where they would act irrationally in reaching a verdict.” And I predict that occasions will arise when we will feel, as appellate judges, that prejudice has resulted and when we shall be compelled by our own verbiage to say that a fine District Judge has been “arbitrary” or, indeed, “irrational,” when all we can really mean is that in the particular case, “substantial prejudice” clearly outweighs “probative value.” As I believe Judge Oakes has demonstrated, this was a weak case in which the proof of identity rested almost entirely on the accomplice’s testimony, given under hope of quite specific reward in the form of a reduced sentence and, perhaps, with some motive to shield another suspect who was a friend. The panel majority is inferentially taxed for not following United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970), a decision which we have no difficulty accepting. There the evidence of guilt was overwhelming, and I would agree that the strong evidence of an arsenal of guns there admitted was, if erroneous, quite harmless. I do not believe that the same applies to a weak case, particularly one where the issue is identity. I do not agree that because evidence of slight probative force in terms of logical relevance exists, it ought to be admitted to supply a needed knockout blow. On the contrary, it is in cases in which the prosecution case is weak where the weighing suggested in Rule 403 comes into sharp focus. In such cases, the “bad man” theory as a ground for conviction should be “outweighed” only if there is a heavier logical connection on the facts than where guilt is overwhelming. In sum, we cannot weigh prejudice except in a “tipping of the scale” context. This does not mean that evidence of strong probative value necessarily should be excluded because the case is otherwise weak. If its logically probative force is strong enough, the circumstance that the evidence will hurt the defendant is obviously not ground for exclusion. The difference of opinion" }, { "docid": "23647459", "title": "", "text": "circumstances on the one hand, and the probative effect thereof on the other, are two different things. The range of the latter is from prima facie proof sufficient for conviction to a remote circumstantial relevancy the weight of which depends largely upon its association with other circumstances. But in every case the evidence should be admitted for the consideration of the jury when it' has any tendency to show the probability of a connection between the accused and the commission of the crime. These principles are elementary, and are so well founded in reason and good sense that one might forbear repeating them did they not appear to afford ample justification for the action of the trial court in the case at bar. Some of,the cases selected at random from many will illustrate their application. Randolph v. State, 100 Ala. 142, 14 South. 792. A man and his wife were jointly indicted and tried for burglary. Thirteen months after the commission of the offense their house was searched when the husband was in jail on another charge, and some of the stolen property was found, though a search made just previous to his arrest failed to reveal anything. It was held this was some evidence for the jury to consider on the charge against him. In People v. Van Dam, 107 Mich. 425, 65 N. W. 277, the house of defendant, who was accused of burglarizing a store, was searched, during his temporary absence, 26 days after the crime was committed, and several articles of merchandise were found. Evidence was admitted showing this fact and the similarity of the articles in kind, shop wear, and exposure to those remaining in the store.. In Bryan v. State, 62 Ga. 179, a burglary and larceny were both committed. The possession of the property 12 days after the theft, not satisfactorily explained, was held admissible on the charge of burglary. In Frazier v. State, 135 Ind. 38, 34 N. E. 817, the claim of the prosecution was that the accused, together with Manning and others, committed the burglary and larceny. As to the" }, { "docid": "23704390", "title": "", "text": "motive. See Note, Evidence of Prior Consistent Statements Admissible for Rehabilitation when Witness’ Testimony Assailed as Recent Fabrication, 45 Calif.L.Rev. 202 (1957). A third view, apparently originating in Judge Cooley’s opinion in Stewart v. People, 23 Mich. 63, 74-76 (1871), rightly considered the problem to be more complex and not susceptible to any bright-line solution. Judge Cooley pointed to a number of situations beyond those of recent fabrication and improper motive where it would outrage common sense to reject the prior consistent statement for rehabilitation. The clearest case was when the making of the inconsistent statement was disputed. Thus, when a person was “testifying in a case where he had spent a considerable period of time and a large sum of money in pursuing an alleged criminal to conviction, and he is confronted with evidence of his own conflicting statements,” he should be entitled to demonstrate “such circumstances of his connection with the case as would make the impeaching evidence appear to be at war with all the probabilities.” Beyond these, “other cases may readily be supposed in which, under the peculiar circumstances, the fact that the witness has always previously given a consistent account of the transaction in question might well be accepted by the jury as almost conclusive that he had not varied from it in the single instance testified to for the purpose of impeachment.” He concluded that “though spch evidence should not generally be received,” its admission “ought not to be set aside except in a clear case of abuse” of discretion. The most cited decision on the subject in this circuit was Judge Learned Hand’s opinion in United States v. Sherman, 171 F.2d 619, 621 — 22 (1948), cert. denied sub nom. Grimaldi v. United States, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738 (1949). In that case, a prosecution for stealing goods in interstate commerce, one Oliva testified that Sherman not only was a party to the theft but drove the truck used to effectuate it. The defense impeached Oliva with a written post-arrest statement in which he had not mentioned Sherman and" }, { "docid": "23647399", "title": "", "text": "393. It is true that Willey claims that he was friendly with Sorenson up to the time of the trial of this case; but that the relation mast have been strained is evident from the fact that he claims Sorenson was principally instrumental in sending him to the penitentiary, and his statement that he had it in mind ever since to “get even” with him for the injury. He testified that his principal occupation was that of fishing, which might account for his accompanying this party on a fishing excursion. Conceding, however, that the credibility of his story was for the jury, the wisdom of the law is again demonstrated in demanding that it should be made to affirmatively appear that the defendant heard and assented to the proposition, and that every reasonable intendment should be indulged in favor of the accused. The government was also indulged, over the objection of the defendant, to show by detective officers that when they arrested the defendant and Hodge, about 18 days after the alleged' burglary and at a point about 19 miles distant from said post office, they found on him a revolver, pieces of fuse, and a bottle containing liquid matter which proved to be nitroglycerin, which he afterwards stated lie used for headache; and that there was found on the person of Hodge a revolver and pieces of fuse, and some skeleton keys, dynamite caps, and a flashlight, proferí of which was made before the jury. As there was nothing to connect the employment of the revolvers and other articles with the burglary, and the possession of them was 18 days after the commission of the offense, we know of no principle of law rendering such facts competent evidence against the defendant on this trial, especially when the evidence disclosed that the defendant worked in coal mines, and such fuse, dynamite caps, and such lights were usable in such work. Rooking to the charge of the court,, it would seem that it was regarded competent as tending to show the defendant might be contemplating the commission of a crime. The" }, { "docid": "21851783", "title": "", "text": "g., Ball, The Moment of Truth: Probability Theory and Standards of Proof, 14 Vand.L.Rev. 807 (1961); James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689 (1941)). In a civil case involving a breach of contract where defendant claims that he did not execute the agreement, the court will admit the alleged written contract if a reasonable man might find that it was signed by or on behalf of the defendant. Admissibility depends purely on the document’s meeting minimum standards of probative force. There may be mixed questions of law and fact relating to “execution” turning on whether, for example, the document was forged or whether the defendant was tricked into signing it. In determining whether the material proposition — the defendant “entered” into the contract— has been established, the jury will consider all of the admitted evidence, including the document before it. If there is some doubt about whether the defendant’s signature was forged, or whether he had authorized an agent to execute it, the jury will consider this doubt in evaluating all the lines of proof bearing on the material proposition. The level of burden of proof (persuasion) with respect to the material proposition will be, since this is an ordinary civil case, a preponderance — that is to say the trier must be convinced, on the basis of his evaluation of the evidence, that the proposition is more probably true than false (50+% probable for purposes of this analysis). Thus, if the trier would have been just convinced that the material proposition was probably true absent this doubt about the authenticity of the document, doubt about this line of proof might sufficiently reduce his evaluation of the probability of the material proposition so that he might find that it was not proven (50% or less probable). The jury’s evaluation of the evidence relevant to a material proposition requires a gestalt or synthesis which seldom needs to be analyzed precisely. Any item of evidence must be interpreted in the context of all the evidence introduced (and often of that reasonably expected which was not produced). In giving appropriate, if" }, { "docid": "23647453", "title": "", "text": "entered it.” Complaint is also made of the admission in evidence and exhibition to the jury of the nitroglycerin, fuses, dynamite caps, etc., found on. Sorenson and Hodge when arrested. As the question is one of admissibility and not of weight, I will pass by the emphasis put upon the fact that the arrest was 18 days after the burglary and the accused were then 19 miles distant from Van Meter. The evidences of the use of a violent explosive in the appearance of the door and lining of the safe, and the gases in the room soon after the burglary, in connection with the testimony as to the way nitroglycerin and other articles found on the accused were commonly used in forcing safes, constitute some proof that’ implements of that character were probably employed in the present case. It is said the ability to commit a crime does not evidence the act. The correct rule, however, is that physical capacity to commit a crime (Thiede v. Utah, 159 U. S. 518, 16 Sup. Ct. 62, 40 L. Ed. 237), or the possession of skill, knowledge, or familiarity with the special means employed in its commission, has a probative value. If the means arc peculiar, and such as men generally are not familiar with or capable of using, evidence that an accused is so equipped is obviously admissible. People v. Brotherton, 47 Cal. 388, 402. We all know that few men are accustomed to handling nitroglycerin or familiar with its use, and few are able t'o force entrance into a steel safe. The fact that each separate article had a lawful use makes of course in favor of the accused, but does not render the evidence inadmissible. It is true the trial court said in its charge to the jury that this evidence might be considered as tending to show the accused were going to commit some other crime. This was evidently inadvertent, and may well be passed by, because counsel at the trial did not direct the court’s attention to it by an exception, nor did they make it" }, { "docid": "21165649", "title": "", "text": "(4) the prior conduct must not be too remote in time. Id. We need address only the first part of the test. The government offered “bad act” testimony from two police officers. Sergeant Kass testified that in June 2003, in connection with a traffic stop of a vehicle in which Rendon-Duarte was riding, two weapons were found stashed in the cover of the sunroof of the car. Lieutenant Gilliam testified that in March 2001, when a car driven by Rendon-Duarte was checked following an accident, a weapon and shell casings were found on the floorboard of the driver’s seat below where Rendon-Duarte had been sitting. The jury was instructed that it could consider this evidence “only as it bears on defendant’s intent, knowledge, absence of mistake or accident, and for no other purpose.” The district court held the evidence admissible, finding a sufficient nexus between these incidents and the conduct with which Rendon-Duarte was charged. It noted that the presence of the guns in the vehicles within easy reach of Rendon-Duarte was probative of absence of mistake as well as plan. We review the district court’s evidentiary rulings for abuse of discretion, considering whether the lower court based its decision on relevant factors and whether there was a clear error of judgment. United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004). Rendon-Duarte argues that the prior-act testimony was improperly admitted because “there is no ‘logical connection’ between the crime to be proved and the prior bad acts other then [sic] propensity to possess guns, an impermissible purpose.” We have held that “the government ... bears the burden of proving a logical connection between appellant’s purported involvement in the previous [act] and a material fact at issue in the crime with which he was charged.” United States v. Mayans, 17 F.3d 1174, 1183 (9th Cir.1994). The material fact at issue here was whether Rendon-Duarte had knowledge of and intent to possess the weapons found in his vehicle. The evidence of the prior acts established only that weapons were found in the cars he drove or rode in. The government’s reliance" }, { "docid": "8081291", "title": "", "text": "comment on appellant’s credibility, but was only a comment on the accuracy of his supposed understanding of the law. In addition, evidence that others shared defendant’s misunderstanding of the law, while relevant to the credibility of that defense, is not automatically admissible. The judge must weigh the marginal contribution against potential prejudice, keeping in mind that the judge remains the jury’s source of information regarding the law. See United States v. Burton, 737 F.2d 439, 443 (5th Cir.1984). United States v. Malquist, 791 F.2d 1399, 1402 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 445, 93 L.Ed.2d 394 (1986), is a similar case. To support his good faith belief, the defendant proffered as evidence copies of the Constitution, Declaration of Independence, portions of a Ninth Circuit opinion, a trial transcript in another person’s prosecution, and six tax protester articles. The Court found no abuse of discretion in the refusal to admit those documents because the court was not obligated to admit legal materials as evidence and the defendant had testified on his reliance upon the documents in support of his defense. See also United States v. Anderson, 577 F.2d 258, 260 (5th Cir.1978). Since the court could have refused to admit the documents altogether, it would not be an abuse of discretion to admit them with a cautionary instruction designed to avoid confusing the jurors about the state of the law. III. Appellant finally contends that the district court erred in giving the following instruction to the jury over his objection: “But if a person acts without reasonable ground for belief that his conduct is lawful, it is for you to decide whether he acted in good faith or whether he willfully intended to fail to file a tax return.” Appellant argues that the district court’s instruction improperly directed the jury to apply an objective test to determine the willfulness of his conduct. In support of this contention, he cites United States v. Burton, 737 F.2d 439 (5th Cir.1984), in addition to cases from other circuits. His reliance is misplaced. In Burton, we reviewed an instruction to the jury" }, { "docid": "469544", "title": "", "text": "S.Ct. at 653-54, 654. . A defendant’s hands-on experience in the drug trade cannot alone prove that he possessed drugs on any given occasion. But it can show that he knew how to get drugs, what they looked like, where to sell them, and so forth. Evidence of a defendant’s experience in dealing drugs—evidence, that is, of his \"bad acts\"—thus may be a \"brick” in the \"wall” of evidence needed to prove possession. See FedR.Evid 401, advisory committee notes. . For a jury to find a defendant guilty of that offense, the government must prove, among other things, that the defendant possessed crack cocaine, that he did so knowingly and intentionally—that is, \"consciously, voluntarily and on purpose, not mistakenly, accidentally or inadvertently\"—and that when the defendant possessed the crack, he had the specific intent to distribute it. See Criminal Jury Instructions for the District of Columbia, Instruction 4.29 (4th ed.1993). . George F. James, Relevancy, Probability and the Law, 29 Cal. L.Rev. 689, 696 n.15 (1941); see also 1 McCormick on Evidence § 185 (John William Strong ed., 4th ed.1992). The advisory committee notes cite and rely upon Professor James’ work and Rule 401 adopts the test of relevancy he proposed in 1941. . For instance, if a defendant were charged with distributing heroin, the government would be hard pressed to demonstrate why evidence of the defendant’s earlier commission of a rape was relevant to anything properly provable under Rule 404(b). TATEL, Circuit Judge, with whom EDWARDS, Chief Judge, WALD, and SILBERMAN, Circuit Judges, join, dissenting: Although Rule 404(b)’s first sentence— “[ejvidenee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith”—restrains prosecutors and sometimes deprives juries of relevant evidence, Congress determined that the Rule’s valuable protection against the prejudice of bad acts evidence outweighs its costs. Substituting its own policy judgment for Congress’, this court now converts Rule 404(b) from a requirement that courts inquire into the purposes of character evidence—“[t]he threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b)" }, { "docid": "7753808", "title": "", "text": "but if ultimately disadvantage results, there was no authority. And the fact that the admissions constituted evidence of the commission of a crime other than the one for which the appellant was on trial does not necessarily render the admissions inadmissible. Relevancy is the test of admissibility of this kind1 of evidence. That is to say, the degree of probative force as weighed against the possibility of undue prejudice determines admissibility. Irrelevant testimony of the commission of some crime other than the one with which a defendant is charged is so highly prejudicial that it is not admissible for that reason. But otherwise relevant testimony is not rendered inadmissible only because of its tendency to show the commission of another crime. Green v. United States, 1 Cir., 1949, 176 F.2d 541, 543. Whether the prejudicial tendency of relevant evidence of the commission of some other crime outweighs its probative value in the case on trial is a matter committed to the discretion of the trial court. Here the evidence of prior graft as a police officer is so logically relevant to prove a continuing source of unreported income that I think the court not only did not abuse its discretion in admitting the evidence but was quite right in doing so. It seems to me that proof of substantial increases in net worth during the prosecution years, coupled with evidence of a thorough but fruitless search for a non-taxable source for those increases, served the dual purpose of providing adequate corroboration for the admissions of graft-taking during pre-prosecution years and in addition warrants the inference that the appellant continued to take graft during the years covered by the indictment. The fact that the appellant’s assignments as a police officer during the prosecution years were different from his previous assignments does not indicate that he did not take graft during the indictment years. I think there can be little doubt that opportunities for graft exist whatever a police officer’s assignments or rank may be. Indeed, with higher rank the opportunities probably would increase. I would affirm on the general line of" }, { "docid": "23647456", "title": "", "text": "certain articles stolen. Evidence was admitted that when the accused was arrested 31 days later he had on his person a jimmy and punch, a pair of pliers, and a case knife. In People v. Gregory, 130 Mich. 522, 90 N. W. 414, it was held proper to receive evidence of the finding, more than eight months after a burglary, of burglars’ tools on a farm belonging to the mother-in-law of the accused, but which had been occupied by him alone, also of the finding of part of the stolen property in a room in a house in the city occupied by the accused and his wife, though she claimed it to be her room. As to the finding of the watch in Sorenson’s house 18 days after the burglary: The proof was clear and convincing that the watch was one of those stolen from the safe at the time of the burglary. No explanation consistent with that fact was given in defense. It is, however, queried whether it was admissible and sufficient (wholly different things) to authorize the jury to infer defendant’s connection with either the burglary or the larceny, and as Sorenson had been placed in jail a few hours before his house was searched, and his wife was then in charge, the lack of civil unity of the marital relation is employed to make the possession of the watch her possession, not his. The possession of stolen property is always admissible on a charge of larceny, and when the property was stolen in connection with a burglary it is also admissible on a charge of the burglary. The probative value of such evidence varies with the circumstances attending the possession, and the proximity or remoteness in point of time from the commission of the crime. If the possession is recent and unexplained, it may have a prima facie effect; if not impaired by other evidence, it may be given controlling weight and alone justify conviction. This principle has been applied in a murder case, the accused being found in possession of property of the deceased two weeks" }, { "docid": "21384041", "title": "", "text": "MILLER, Associate Justice. Appellant was convicted of the crime of incest. Error is assigned in that the District Court (1) admitted evidence of other acts of a similar nature between him and the complaining witness; (2) denied appellant’s, motion that the jury be allowed to view-the premises; and (3) refused instructions, which were requested by appellant. The general rule, applicable in. criminal prosecutions, is that evidence of other offenses than that for which the accused is on trial is inadmissible. In prosecutions for sexual offenses, however, there is a well established exception, the theory of which is that as the mental disposition of the defendant at the time of the act charged is relevant, evidence that at some prior time he was similarly disposed is also relevant. Evidence of prior acts between the same parties is admissible, therefore, as showing a disposition to commit the act charged,, the probabilities being that the emotional predisposition or passion will continue. Such evidence is admissible not only on. authority, but on reason. After the court had instructed the-jury, counsel for appellant requested that the jury be allowed to visit the premises-where the offense occurred. Its refusal to-grant the request is assigned as error. But whether or not a jury shall be permitted to- view the premises is discretionary with the court. The record in the present case does not disclose abuse of this discretion. We are inclined to think the request for a view was more or less an afterthought and “has taken on an enlarged importance since the trial, owing possibly to the exigencies of the appeal.” The trial judge refused to give a prayer requested by appellant concerning reputation, upon the ground that the subject had been covered in the charge already given to the jury. The record reveals that the instruction given, satisfied the requirements of Egan v. United States, upon which appellant relies. The complete charge of the court to the jury was not included in the record on appeal. Except as to the instruction on reputation no exception was taken to the charge as given. A careful examination" } ]

[ { "docid": "20936890", "title": "", "text": "JOSEPH S. LORD, III, District Judge. This is a habeas corpus proceeding, Petitioner has raised unsuccessfully in the state courts the argument that the denial of counsel at his preliminary hearing, at which he pleaded guilty, was a deprivation of his constitutional right to counsel. See Commonwealth ex rel. Parker v. Myers, 414 Pa. 427, 200 A.2d 770 (1964). Lack of counsel at a prelimi. nary hearing constitutes a denial of constitutional rights if, under the circumstances of the particular case, that hearing was a “critical” stage of the proeeedings. In this sense, a preliminary hearing, not normally a critical stage under the procedure of a given state, can nevertheless become critical if events transpire which are likely to prejudice the trial. White v. Maryland 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); DeToro v. Pepersack, 332 F.2d 341, 343 (C.A.4, 1964). In White, relator had plead guilty, without counsel, at the prelimmary hearing. He later changed his , Plea and his uncounseled preliminary guilty plea was used against him. He was convicted. In reversing, the Court said, at page 60 of 373 U.S., at page 1051 of 83 S.Ct.: «* * whatever may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as arraignment under Alabama law. For petitioner entered a plea be-f°re the magistrate and that plea was taken at a time when he had no counsel. * * * ” In United States ex rel. Cooper v. Reincke, 333 F.2d 608 (C.A.2, 1964), speaking of White, the court said, at page 611: “ * * * It is clear that what made the preliminary hearing ‘critical’ was that a guilty plea had been entered and that the plea had been fnst Petitioner at trial. The hearing and plea in this case partook of none of the elements of White. The relator did not change his plea, and an examination of the state record, which I have before me, shows that the preliminary plea was not used or introduced at the hearing to determine the" } ]

[ { "docid": "22963110", "title": "", "text": "1019, 82 L.Ed. 1461 (1938). The effect of Gideon has been to expand the right to counsel and there has also been a widening of the concept of the stage or stages when that right attaches.. We conclude that it is now the law that the right to counsel is present at every critical stage of the proceedings. It has definitely been settled that the right attaches at arraignment where, under state law, that stage is- critical as frequently it must be deemed to be. White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); see Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). More recently, in 1964 the Supreme Court, in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, has held that, under certain circumstances, the right to counsel attaches at the interrogation level. These cases hold that where the right attaches any confession obtained in the absence of counsel must be suppressed independent of any issue of the voluntariness of the confession. In Massiah, the petitioner had already been indicted and was free on bail. Massiah’s alleged partner in crime agreed to cooperate with the police. By prearrangement with the police, a radio transmitter was installed in the partner’s automobile, thereby enabling the police to hear conversations conducted in the car. The partner talked with Massiah in the car and obtained incriminating statements from him. The Supreme Court held that the statements were inadmissible since the police practice offended Massiah’s right under the Sixth Amendment to the protection of counsel, relying on the concurring opinions in Spano, supra. The majority opinion treated this surreptitious- questioning as an interrogation by the police and held that at this point in the proceedings, i. e. post-indictment, Massiah had the right to the assistance of counsel. In Escobedo, the Supreme Court extended the right to" }, { "docid": "19248210", "title": "", "text": "WOOD, District Judge. The relator is presently serving a state imposed life sentence for murder in the first degree. Com. v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1961) He has exhausted his state remedies of habeas corpus. Com. ex rel. Dickerson v. Bundle, 411 Pa. 651, 192 A.2d 347 (1963) He now seeks relief from this Court. We grant the Writ because the relator was denied the assistance of counsel under the Sixth and Fourteenth Amendments to the Constitution of the United States when a statement elicited from him at a “critical stage” of the proceedings was admitted into evidence against him at his trial. On August 15, 1958, a guard in a housing project was found dead in the incinerator room of the project. He had been shot four times. On August 19, 1958, the relator voluntarily surrendered himself to the police. He was questioned and at first denied any part in the killing. The relator was then confronted with a statement given by Spencer Broaddus who admitted his participation in the crime and implicated Dickerson. Thereupon, the relator changed his story and gave the police a written statement admitting that he had hit the guard, but denied that he saw the shooting. Following this statement the relator was given a preliminary hearing on the morning of August 20, 1958, before a magistrate and held for trial. The record affirmatively shows that the relator was never advised of his right to an attorney nor was he so represented at the preliminary hearing. The Pennsylvania Supreme Court does not regard the preliminary hearing as a “critical stage” of the criminal proceedings against the accused. Com. ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965); Com. ex rel. Herge v. Rundle, 415 Pa. 36, 202 A.2d 24 (1964); Com. ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964) Thus, the lack of counsel at such a hearing does not result in a denial of due process. Com. ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965). Following his preliminary hearing the" }, { "docid": "22963109", "title": "", "text": "The Right to Counsel in Minnesota: Some Field Findings & Legal-Policy Observations, 48 Minn.L.Rev. 1 (1963); Enker & Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois, 49 Minn. L.Rev. 47 (1964); Note, An Historical Argument for the Right to Counsel During Police Interrogation, 73 Yale L.J. 1000 (1964). In Spano, supra, four Justices would have reversed the conviction solely because of the absence of the defendant’s counsel at a post-indictment interrogation. Aside from the expansion of the importance of the aid of counsel for the accused in determining the voluntariness of a confession, the Supreme Court has expanded Sixth Amendment protection2 as an independent ground for exclusion of a confession or for granting a new trial. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court held that a criminal defendant in a state court is entitled to the same right to counsel as a criminal defendant in a court of the United States. Compare Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The effect of Gideon has been to expand the right to counsel and there has also been a widening of the concept of the stage or stages when that right attaches.. We conclude that it is now the law that the right to counsel is present at every critical stage of the proceedings. It has definitely been settled that the right attaches at arraignment where, under state law, that stage is- critical as frequently it must be deemed to be. White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); see Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). More recently, in 1964 the Supreme Court, in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, has held that, under certain circumstances, the right" }, { "docid": "6329479", "title": "", "text": "to prejudice the trial. The court in that case found no likelihood of prejudice at the trial. Petitioner cites Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Spano v. State of New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Hamilton v. State of Alabama, supra; White v. State of Maryland, supra, in support of his argument that the need for likely prejudice as a result of events transpiring at pretrial investigations or preliminary hearings, as expounded in prior cases, has been substantially weakened, and in any event, a likelihood of prejudice has been shown in this case. All of these cases turn on a possibility of prejudice and, therefore, are distinguishable. In some, a request for counsel was made; here there was no request. In all, some affirmative prejudice was likely to result. In Spano, Escobedo and Massiah incriminating statements were given; here, petitioner did not testify and gave no statement at the preliminary hearing. In Hamilton, arraignment was a critical stage of the proceeding where the failure to assert certain defenses would result in their loss at the trial; here, this was not true. .In White, a guilty plea taken at a preliminary hearing was later used in the trial which followed a change of plea to not guilty; here, a plea of not guilty was entered at the preliminary hearing. And in Pointer the complaining witness at the preliminary hearing, a stage of proceeding in Texas where pleas are not taken, was absent from the trial and the testimony at the preliminary hearing was used in the trial without the defendant having had an opportunity, through counsel, to cross-examine; here, the witnesses at the preliminary hearing were fully cross-examined at the trial by counsel who had been engaged within a few days of the murder and several months in advance of trial. See United States ex rel. Parker" }, { "docid": "21963020", "title": "", "text": "can not agree with the relator’s second contention challenging the Commonwealth’s failure to provide him with counsel at the Alderman’s Hearing since, absent extraordinary circumstances not present here, a preliminary hearing is not a critical stage of a criminal proceeding in Pennsylvania. See, e. g., United States ex rel. Peterson v. Russell, 266 F.Supp. 93, 94 (W.D.Pa., 1967), United States ex rel. Maisenhelder v. Rundle, 229 F.Supp. 506, 508-509 (E.D.Pa., 1964), aff’d 349 F.2d 592, and Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965). Relator adequately has exhausted all state remedies available for considering his first contention relating to the voluntariness of his guilty pleas, however, and this legal contention, if supported by substantial factual evidence, is, of course, one which can justify a conclusion that he was, and is, detained unconstitutionally. See, e.g., United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508, 514-519 (E.D.N.Y., 1967). After examination of the entire factual record in relator’s case, this Court is convinced that the relator neither knowingly nor voluntarily entered his pleas of guilty to the charges of prison breach and holding a hostage, and, that, accordingly, the relator is entitled to a new trial on those charges. In the absence of any interrogation by the trial court of the relator’s understanding of his guilty pleas, the burden of demonstrating the validity of those pleas rests upon the Commonwealth. See, United States ex rel. Crosby v. Brierley, 404 F.2d 790, 795 (C.A. 3, 1968), and United States ex rel. McCloud v. Rundle, 402 F.2d 853, 857 (C.A. 3, 1968). In sustaining its burden the Commonwealth must show that the “totality of circumstances” present at the time when the relator entered his pleas were such as would indicate that he voluntarily and understandingly pleaded guilty. Among the circumstances to be considered are the following: the relator’s age and background; the consistency, or lack of consistency, in the pleas made by the relator throughout the pretrial and trial stages of the case; the extent, if any, to which the trial court conducted an inquiry into the relator’s understanding" }, { "docid": "6329480", "title": "", "text": "Escobedo and Massiah incriminating statements were given; here, petitioner did not testify and gave no statement at the preliminary hearing. In Hamilton, arraignment was a critical stage of the proceeding where the failure to assert certain defenses would result in their loss at the trial; here, this was not true. .In White, a guilty plea taken at a preliminary hearing was later used in the trial which followed a change of plea to not guilty; here, a plea of not guilty was entered at the preliminary hearing. And in Pointer the complaining witness at the preliminary hearing, a stage of proceeding in Texas where pleas are not taken, was absent from the trial and the testimony at the preliminary hearing was used in the trial without the defendant having had an opportunity, through counsel, to cross-examine; here, the witnesses at the preliminary hearing were fully cross-examined at the trial by counsel who had been engaged within a few days of the murder and several months in advance of trial. See United States ex rel. Parker v. Myers, supra. In Pointer the Court declined to decide whether failure to appoint counsel to represent Pointer at the preliminary hearing unconstitutionally denied him the assistance ■of counsel. Petitioner complains that he did not know he could have recorded the testimony at the preliminary hearing, but it was recorded by the police, was not shown to be false in any detail, and is adverse to the contentions petitioner seeks to advance from his recollection. Under all the circumstances the preliminary hearing was not a critical stage. Petitioner argues that a showing of prejudice is not necessary in a capital case, citing Hamilton v. Alabama, supra. In that decision and in White v. Maryland, supra, which cited Hamilton, the ■Court found that the preliminary hearing was a critical stage based on circumstances which showed a possibility of prejudice at the trial. The language in those cases that “[W]e do not stop to determine whether prejudice resulted” appears to mean that petitioner need not .show he was actually prejudiced at the \"trial, but does not eliminate" }, { "docid": "19224461", "title": "", "text": "opportunity to review alleged .state abuses of federal constitutional .rights”, United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (3d Cir. 1964). However, it is never an “indignity to .state processes” to hold that the particular allegations of state abuses are clearly without merit. See In re Thompson’s Petition, 301 F.2d 659, 660 (3d Cir. 1962). Relator’s assertion that he was illegally arrested, even if true, does not vitiate the constitutionality of his present confinement. Relator is deprived of his liberty today because he was found guilty of burglary and sentenced to imprisonment after indictment and fair trial, not because of any illegality in his initial arrest. Accordingly, no habeas •corpus relief is presently available to relator on this claim. Delano v. Crouse, 327 F.2d 693 (10th Cir. 1964), cert. denied 377 U.S. 1004, 84 S.Ct. 1941, 12 L.Ed.2d 1053 (1964) ; United States ex rel. Hazen v. Maroney, 217 F.Supp. 328 (W.D.Pa.1963); United States ex rel. Williams v. Myers, 196 F.Supp. 280 (E. D.Pa.1961). Relator’s second contention that he was deprived of the assistance of counsel at his preliminary hearing on October 30, 1963, likewise is without any constitutional merit. Lack of counsel at a preliminary hearing constitutes a denial of due process if under the circumstances of the ease the preliminary hearing can be considered a “critical” stage in the criminal proceedings, i. e. a point where the rights of the defendant may be preserved or lost. White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). However, there is nothing in Pennsylvania practice or the record of this case to indicate that relator’s preliminary hearing was a critical stage of the proceedings against him requiring the presence of counsel. See United States ex rel. Maisenhelder v. Rundle, 229 F.Supp. 506 (E.D.Pa.1964); United States ex rel. Parker v. Myers, 233 F.Supp. 563 (E.D.Pa.1964). Relator’s final allegation that he was not represented by “proper legal counsel” at his trial on December 23, 1963, is clearly without merit. A reading of the official notes of testimony of the trial demonstrates that relator was" }, { "docid": "6329477", "title": "", "text": "appearance. The minutes of the preliminary hearing, however, show that Mrs. Strickland’s testimony was substantially the same she gave at the trial. Petitioner has offered the trial testimony of various people, some who testified in accordance with petitioner’s recollection of Mrs. Strickland’s testimony. This testimony is not persuasive. It consists of the testimony of petitioner, his cousin, the stenographer at the preliminary hearing, and Mrs. Strickland. This court finds that petitioner did not request counsel prior to the preliminary hearing. This court also finds that petitioner was not told that he had a right to be represented by counsel. In Hamilton v. State of Alabama, 1961, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. State of Maryland, 1963, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, the Supreme Court of the United States held that a defendant in a criminal case is entitled to representation by counsel at a preliminary hearing when such hearing is or under the circumstances becomes a critical stage in the proceeding against him. The Pennsylvania Supreme Court has held that even in a murder charge, the preliminary hearing is not ordinarily a critical stage in the proceedings, and that a lack of counsel at such a hearing does not violate due process in the absence of unusual circumstances which transform the proceeding into a critical stage. Commonwealth ex rel. Butler v. Rundle, 1965, 416 Pa. 321, 206 A.2d 283; United States ex rel. Maisenhelder v. Rundle, E.D.Pa.1964, 229 F.Supp. 506. In determining whether a preliminary hearing is or has become a critical stage of a proceeding, the cases look to the possible prejudicial effect. Thus, in United States ex rel. Parker v. Myers, E.D.Pa. 1964, 233 F.Supp. 563, aff’d for the reasons stated by the district court, 3 Cir. 1965, 341 F.2d 303, the court in denying a petition for a writ of habeas corpus discussed both the Hamilton and White cases, and noted that a preliminary hearing, not normally a critical stage under the procedure of a given state, can nevertheless become critical if events transpire which are likely" }, { "docid": "8131595", "title": "", "text": "subsequent proceedings. Neither the preliminary hearing nor the arraignment at which he pleaded not guilty were critical stages of the proceedings within the compass of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Appellant was not denied any constitutionally protected right to counsel. United States ex rel. Caccio v. Fay, 350 F.2d 214 (2d Cir. 1965); United States ex rel. Cooper v. Reincke, 333 F.2d 608 (2d Cir. 1964); United States ex rel. Spinney v. Fay, 221 F.Supp. 419 (S.D.N.Y., 1963), aff’d 325 F.2d 436 (2d Cir. 1963). Under California law, appellant’s counsel had the right to examine the transcript of the preliminary hearing prior to trial and to object to its introduction in evidence. People v. Laisne, 163 Cal.App.2d 554, 329 P.2d 725 (3rd Dist.1958). Instead, his counsel stipulated that the People’s case be submitted on the preliminary transcript and thus consented to its introduction as a matter of trial strategy. There is no showing that the complaining witness was not available to testify at the trial had appellant’s counsel deemed it expedient to cross-examine. This case is quite different from Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), on which appellant relies, where the preliminary transcript was admitted only over the strenuous objections of defendant’s counsel. Judge Burke found that appellant consented to waive a jury trial. His unsubstantiated testimony that his counsel waived a jury despite his objection was contradicted by the Clerk’s minutes of the trial. The minutes state that “the defendant, his counsel and the district attorney” consented to waive a jury. Such records are presumed to be regular. Marcello v. United States, 328 F.2d 961 (5th Cir., 1964), cert. denied, 377 U.S. 992, 84 S.Ct. 1916, 12 L.Ed.2d 1045 (1964); cf. United States ex rel. Abair v. Wilkins, 333 F.2d 742 (2d Cir., 1964). Judge Burke expressly rejected appellant’s testimony to the contrary. Credibility was for the District Court. The record supports Judge Burke’s finding. The Clerk’s minutes state that appellant was present at the trial. Judge Burke so found" }, { "docid": "19224462", "title": "", "text": "the assistance of counsel at his preliminary hearing on October 30, 1963, likewise is without any constitutional merit. Lack of counsel at a preliminary hearing constitutes a denial of due process if under the circumstances of the ease the preliminary hearing can be considered a “critical” stage in the criminal proceedings, i. e. a point where the rights of the defendant may be preserved or lost. White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). However, there is nothing in Pennsylvania practice or the record of this case to indicate that relator’s preliminary hearing was a critical stage of the proceedings against him requiring the presence of counsel. See United States ex rel. Maisenhelder v. Rundle, 229 F.Supp. 506 (E.D.Pa.1964); United States ex rel. Parker v. Myers, 233 F.Supp. 563 (E.D.Pa.1964). Relator’s final allegation that he was not represented by “proper legal counsel” at his trial on December 23, 1963, is clearly without merit. A reading of the official notes of testimony of the trial demonstrates that relator was competently and ably defended by Lewis P. Mitrano, Esq. of the Defender Association of Philadelphia. Accordingly, relator’s petition must be denied." }, { "docid": "21963019", "title": "", "text": "of Pennsylvania’s judicial hierarchy. II In his petition here for writ of habeas corpus the relator advances four separate contentions which allegedly support a conclusion that he currently is incarcerated in violation of the Federal Constitution: (1) that his pleas of guilty were neither voluntarily nor understanding^ made; (2) that he was deprived the effective assistance of counsel because he was not represented by counsel at the Alderman’s Hearing; (3) that, in general, his privately-retained counsel represented him in such an unreasonable fashion as to deprive him of his right to the effective assistance of counsel; and, (4) that the indictments on which his conviction was based were illegal. Relator did not advance his third and fourth contentions to the state courts and, particularly since the Commonwealth has not indicated an intention here to waive the exhaustion requirement, it therefore would be inappropriate for this Court to consider either of these contentions at this time. See generally, United States ex rel. Boy ance v. Myers, 372 F.2d 111, 112-113 (C.A. 3, 1967). This Court also can not agree with the relator’s second contention challenging the Commonwealth’s failure to provide him with counsel at the Alderman’s Hearing since, absent extraordinary circumstances not present here, a preliminary hearing is not a critical stage of a criminal proceeding in Pennsylvania. See, e. g., United States ex rel. Peterson v. Russell, 266 F.Supp. 93, 94 (W.D.Pa., 1967), United States ex rel. Maisenhelder v. Rundle, 229 F.Supp. 506, 508-509 (E.D.Pa., 1964), aff’d 349 F.2d 592, and Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965). Relator adequately has exhausted all state remedies available for considering his first contention relating to the voluntariness of his guilty pleas, however, and this legal contention, if supported by substantial factual evidence, is, of course, one which can justify a conclusion that he was, and is, detained unconstitutionally. See, e.g., United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508, 514-519 (E.D.N.Y., 1967). After examination of the entire factual record in relator’s case, this Court is convinced that the relator neither knowingly nor voluntarily entered his" }, { "docid": "19248211", "title": "", "text": "and implicated Dickerson. Thereupon, the relator changed his story and gave the police a written statement admitting that he had hit the guard, but denied that he saw the shooting. Following this statement the relator was given a preliminary hearing on the morning of August 20, 1958, before a magistrate and held for trial. The record affirmatively shows that the relator was never advised of his right to an attorney nor was he so represented at the preliminary hearing. The Pennsylvania Supreme Court does not regard the preliminary hearing as a “critical stage” of the criminal proceedings against the accused. Com. ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965); Com. ex rel. Herge v. Rundle, 415 Pa. 36, 202 A.2d 24 (1964); Com. ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964) Thus, the lack of counsel at such a hearing does not result in a denial of due process. Com. ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965). Following his preliminary hearing the relator was committed to the County Prison. From this point forward under the circumstances of this case the proceedings entered a “critical stage.” Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964) On the afternoon of August 20, 1958, the Detective Bureau desired to question the relator further regarding certain inconsistencies in his statement. A request by letter was made by the police to the District Attorney to have the relator returned to the police for additional interrogation. The District Attorney then requested the court to remove the relator from prison. An order termed a “bring up” was issued and the Clerk of Quarter Sessions Court forwarded his signed order directing the Warden of the County Prison to turn the relator over to the police. Thereafter, on August 20, 1958, the relator was questioned by the police in the presence of Broaddus and several detectives at City Hall. He remained in their custody from 3:16 p. m. until 9:41 p. m. At 7:35 p. m. the relator began his second" }, { "docid": "6329481", "title": "", "text": "v. Myers, supra. In Pointer the Court declined to decide whether failure to appoint counsel to represent Pointer at the preliminary hearing unconstitutionally denied him the assistance ■of counsel. Petitioner complains that he did not know he could have recorded the testimony at the preliminary hearing, but it was recorded by the police, was not shown to be false in any detail, and is adverse to the contentions petitioner seeks to advance from his recollection. Under all the circumstances the preliminary hearing was not a critical stage. Petitioner argues that a showing of prejudice is not necessary in a capital case, citing Hamilton v. Alabama, supra. In that decision and in White v. Maryland, supra, which cited Hamilton, the ■Court found that the preliminary hearing was a critical stage based on circumstances which showed a possibility of prejudice at the trial. The language in those cases that “[W]e do not stop to determine whether prejudice resulted” appears to mean that petitioner need not .show he was actually prejudiced at the \"trial, but does not eliminate the requirement that a possibility of prejudice must be shown from things that happened at the preliminary hearing, thereby making it a critical stage of the proceeding when ■counsel is required. Moreover, in United States ex rel. Parker v. Myers, supra, .and United States ex rel. Maisenhelder v. Rundle, supra, both capital cases, the Court discussed the White and Hamilton ■cases and based its decisions on the absence of a likelihood of prejudice which would convert a preliminary hearing into .a critical stage. On the issue of search and seizure, the petition for a writ of habeas corpus will he granted, but the Commonwealth will he given opportunity either to appeal from this grant of the writ or to retry petitioner. Execution of the writ will, therefore, be stayed for a period of thirty (30) days and if at the end of that period of time the Commonwealth has neither appealed nor initiated proceedings to retry petitioner, the writ will be executed and the petitioner will be released. United States ex rel. Manduchi v. Tracy," }, { "docid": "8122247", "title": "", "text": "Maryland law, it was in this case as ‘critical’ a stage as arraignment under Alabama law. For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel.” Our study of the California preliminary examination procedures made in the light of the pronouncements in Powell, Hamilton and White, convinces us that California’s preliminary examination is not, in and of itself, a critical stage in the judicial proceedings such as to constitutionally require the appointment of counsel. An unrepresented accused cannot plead guilty at such an examination and no incriminating statements made by him at such time can be used against him at a subsequent trial. No defenses which might be asserted at a subsequent trial can be lost at a preliminary examination. “The test is whether that proceeding and what occurred thereat may adversely and prejudicially affect his defense to the charge in a subsequent trial.” United States ex rel. Boone v. Fay, 231 F.Supp. 387 (U.S.D.C.So.Dist.N.Y., 1964). We agree with the following statement appearing in DeToro v. Pepersack, 332 F.2d 341 (4th Cir. 1964), at pages 343-344: “In our view, Hamilton and White teach that an accused is denied rights afforded him under the sixth amendment when he is subjected to an arraignment or to a preliminary hearing without the assistance of counsel, where events transpire that are likely to prejudice his ensuing trial. The Court, in each case, refused to speculate as to whether in fact prejudice actually accrued. “Thus, the thrust of Powell’s admonition that an accused has a right to counsel ‘at every step in the proceedings against him,’ as borne out by subsequent decisions, including Hamilton and White, seems to be that if the effectiveness of legal assistance ultimately furnished an accused is likely to be prejudiced by its prior denial, the earlier period may be deemed a critical stage in the judicial process and a conviction obtained in such circumstances is rendered invalid. We find nothing in the Supreme Court decisions, however, that would permit us to extend the duty of the State to appoint" }, { "docid": "9541622", "title": "", "text": "which a criminal investigation has ended and adversary proceedings have commenced. It is at this point that the constitutional guarantees attach which pertain to a criminal trial.” Id. at 493-94, 84 S.Ct. at 1766. The opinion of the Court in Escobedo v. Illinois, written by Justice Goldberg, represents the high watermark of the movement in the Supreme Court to control police methods of interrogation through the sixth amendment. Justice Goldberg noted that the interrogation took place before the defendant was indicted: But in the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a general investigation of “an unsolved crime.” Spano v. New York, 360 U.S. 315, 327 [79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265] [(1959)] (Stewart, J., concurring). Petitioner had become the accused, and the purpose of the interrogation was to “get him” to confess his guilt despite his constitutional right not to do so. The “guiding hand of counsel” was essential to advise petitioner of his rights in this delicate situation. Powell v. Alabama, 287 U.S. 45, 69 [53 S.Ct. 55, 64, 77 L.Ed. 158] [(1932)]. This was the “stage when legal, aid and advice were most critical to petitioner.” Massiah v. United States, supra, at 204 [84 S.Ct. at 1201-1202]. It was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114] [ (1961) ], and the preliminary hearing in White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193] [ (1963) (per curiam) ]. 378 U.S. at 485, 486, 84 S.Ct. at 1762. In Escobedo the defendant, while in custody, asked to consult with his attorney, and the precise holding is limited to that state of facts: We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that" }, { "docid": "6329478", "title": "", "text": "Supreme Court has held that even in a murder charge, the preliminary hearing is not ordinarily a critical stage in the proceedings, and that a lack of counsel at such a hearing does not violate due process in the absence of unusual circumstances which transform the proceeding into a critical stage. Commonwealth ex rel. Butler v. Rundle, 1965, 416 Pa. 321, 206 A.2d 283; United States ex rel. Maisenhelder v. Rundle, E.D.Pa.1964, 229 F.Supp. 506. In determining whether a preliminary hearing is or has become a critical stage of a proceeding, the cases look to the possible prejudicial effect. Thus, in United States ex rel. Parker v. Myers, E.D.Pa. 1964, 233 F.Supp. 563, aff’d for the reasons stated by the district court, 3 Cir. 1965, 341 F.2d 303, the court in denying a petition for a writ of habeas corpus discussed both the Hamilton and White cases, and noted that a preliminary hearing, not normally a critical stage under the procedure of a given state, can nevertheless become critical if events transpire which are likely to prejudice the trial. The court in that case found no likelihood of prejudice at the trial. Petitioner cites Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Spano v. State of New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Hamilton v. State of Alabama, supra; White v. State of Maryland, supra, in support of his argument that the need for likely prejudice as a result of events transpiring at pretrial investigations or preliminary hearings, as expounded in prior cases, has been substantially weakened, and in any event, a likelihood of prejudice has been shown in this case. All of these cases turn on a possibility of prejudice and, therefore, are distinguishable. In some, a request for counsel was made; here there was no request. In all, some affirmative prejudice was likely to result. In Spano," }, { "docid": "21004455", "title": "", "text": "in Alabama under the 14th Amendment requires that an accused, pleading to a capital charge, have counsel at his side. “Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.” Hamilton v. State of Alabama, supra, 368 U.S. at p. 55, 82 S.Ct. at p. 159. In White, the petitioner, arrested on a charge of murder, pleaded guilty at a preliminary hearing before a Maryland magistrate without having the advice or assistance of counsel. Counsel was later appointed for him and he pleaded not guilty at his formal “arraignment.” The prior plea of guilty at the preliminary hearing was introduced in evidence at his trial, and he was convicted and sentenced to death. The Supreme Court held that “whatever may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as arraignment under Alabama law.” The absence of counsel at the preliminary hearing was a violation of due process and did not depend upon a showing of prejudice. In the instant case we have a petitioner who was protected at all “critical” stages of the criminal proceedings instituted against him. ' His petition ¿lakes the bare assertion that he was not advised of his constitutional rights to counsel at the preliminary hearing which allegation is specifically contradicted by the criminal transcript. (See footnote 2, supra.) Nothing in his petition or in the record of this case indicates to this Court that the absence of counsel at the preliminary hearing deprived the petitioner of due process under the 14th Amendment. ORDER And now, this 21st day of May, 1964, the petition for a writ of habeas corpus is denied without a hearing. . Commonwealth ex rel. Maisenhelder v. Bundle, 414 Pa. 11, 198 A.2d 565 (1964). . This statement is at variance with the criminal transcript of the preliminary hearing which states as follows: “And now, April 1, 1953, the defendant Norman S. Maisenhelder is informed of his eonstituional rights, pleads guilty to the above charge.”" }, { "docid": "6329482", "title": "", "text": "the requirement that a possibility of prejudice must be shown from things that happened at the preliminary hearing, thereby making it a critical stage of the proceeding when ■counsel is required. Moreover, in United States ex rel. Parker v. Myers, supra, .and United States ex rel. Maisenhelder v. Rundle, supra, both capital cases, the Court discussed the White and Hamilton ■cases and based its decisions on the absence of a likelihood of prejudice which would convert a preliminary hearing into .a critical stage. On the issue of search and seizure, the petition for a writ of habeas corpus will he granted, but the Commonwealth will he given opportunity either to appeal from this grant of the writ or to retry petitioner. Execution of the writ will, therefore, be stayed for a period of thirty (30) days and if at the end of that period of time the Commonwealth has neither appealed nor initiated proceedings to retry petitioner, the writ will be executed and the petitioner will be released. United States ex rel. Manduchi v. Tracy, E.D.Pa.1964, 233 F.Supp. 423, 428." }, { "docid": "2375952", "title": "", "text": "83 S.Ct. 1050, 10 L.Ed. 2d 193, he argues that such right attached to the preliminary hearing which petitioner waived. Neither of these cases is of any aid to petitioner’s contention on the facts here. In Hamilton, the defendant, without counsel, entered a plea of not guilty at an arraignment. The Court reversed his later conviction, holding that the defendant was entitled to counsel as under Alabama law arraignment is a “critical stage in a criminal proceeding.” Unlike the instant case, this was so, as the Court pointed out, because it was the only stage in the proceeding at which certain defenses could be invoked. In White, the accused, without counsel at a preliminary hearing, entered a plea of guilty. This plea was introduced by the State against him at a subsequent trial. Under these circumstances, the Court held that the preliminary hearing was a “critical stage of the proceeding.” It is at once apparent that these decisions are not controlling here where the accused waived a preliminary hearing without entering any plea. This distinc tion is abundantly supported by decisions of both the State and Federal Courts subsequent to Hamilton and White. For Federal cases, see United States ex rel. Cooper v. Reincke, 333 F.2d 608 (CA-2); DeToro v. Pepersack, 332 F.2d 341 (CA-4), and Latham v. Crouse, 320 F.2d 120 (CA-10). DeToro is of particular significance not only because of the similarity of facts with those here and the Court’s well reasoned opinion, with which we agree, but also because the prosecution had its origin in a Federal Court of the same State, as did the prosecution in White v. State of Maryland, supra. Among the numerous State Court decisions called to our attention is Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565, where the State Supreme Court held that the failure to appoint counsel at a preliminary hearing did not violate defendant’s constitutional rights. In that case the defendant entered a plea of guilty at the preliminary hearing, when not represented by counsel, and on arraignment entered the same plea, when represented by" }, { "docid": "2375953", "title": "", "text": "tion is abundantly supported by decisions of both the State and Federal Courts subsequent to Hamilton and White. For Federal cases, see United States ex rel. Cooper v. Reincke, 333 F.2d 608 (CA-2); DeToro v. Pepersack, 332 F.2d 341 (CA-4), and Latham v. Crouse, 320 F.2d 120 (CA-10). DeToro is of particular significance not only because of the similarity of facts with those here and the Court’s well reasoned opinion, with which we agree, but also because the prosecution had its origin in a Federal Court of the same State, as did the prosecution in White v. State of Maryland, supra. Among the numerous State Court decisions called to our attention is Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565, where the State Supreme Court held that the failure to appoint counsel at a preliminary hearing did not violate defendant’s constitutional rights. In that case the defendant entered a plea of guilty at the preliminary hearing, when not represented by counsel, and on arraignment entered the same plea, when represented by counsel. We single out this State Court decision for the reason that the defendant there sought Habeas Corpus in a Federal Court on the ground that he was denied the assistance of counsel at the preliminary hearing. The Court reviewed the recent Supreme Court decisions, held that the preliminary hearing was not a “critical” stage of the proceeding and dismissed the petition. United States ex rel. Maisen-helder v. Rundle, D.C., 229 F.Supp. 506. The Supreme Court of Wisconsin, in State ex rel. Offerdahl v. State, 17 Wis.2d 334, 336, 116 N.W.2d 809, 810, held: “There is no constitutional right to be provided with counsel at a preliminary hearing arising under the United States constitution. Odell v. Burke (C.A. 7th Cir. 1960), 281 F.2d 782, certiorari denied, 364 U.S. 875, 81 S. Ct. 119, 5 L.Ed.2d 96. Neither does such a right exist under sec. 7, art. I, Wis.Const., because a preliminary hearing is not a criminal prosecution within the meaning of this constitutional provision.” This brings us to the issue as to whether petitioner’s constitutional" } ]

[ { "docid": "4390139", "title": "", "text": "insured had no servicemen’s indemnity under the terms of the statute because he had in effect National Service Life Insurance in the amount of $10,000, and this figure could have reference only to his National Service Life Insurance. Bew v. United States, 4 Cir., 286 F.2d 570. There is an indication from the Veterans Administration files that Form Number DD 93, and its predecessor, AGO Form Number 41, were believed by some servicemen to be the proper form for changing the beneficiary in their National Service Life Insurance, and were used by them for that purpose. See Widney v. United States, supra. In holding that the execution of an AGO Form 41 by the insured may constitute the positive or affirmative act necessary to accomplish a change of beneficiary, we said in Boring v. United States, supra [10 Cir., 181 F.2d 933]: “Without exception, the courts have held that strict compliance with the regulations to effect a change in beneficiary by the soldier was not required, and that technicalities would be brushed aside in an effort to carry out the declared intent of the insured in this class of cases. See Bradley v. United States, supra [10 Cir., 143 F.2d 573], “A number of cases have been before the courts in which Form AGO 41 was used to effectuate a change in beneficiary, and in all of them the courts have held that the execution of this form for this purpose was sufficient for a valid change of beneficiary, if executed with that purpose in mind.” (Footnote omitted. ) In Foster v. Winingham, 10 Cir., 169 F.2d 46, 47, it was said: “Unless a controlling statutory provision or an effective regulation promulgated under statutory authority exacts otherwise, the intention and purpose of the insured should be given effect in a case of this kind involving the question whether his wife or this daughter is the beneficiary under a policy of National Service Life Insurance if it reasonably can be done. Narrow technicalities not contravening an applicable statutory provision or an effective regulation should be brushed aside in order to effectuate" } ]

[ { "docid": "17558493", "title": "", "text": "to N.S.L.I. policies maturing on or after August 1, 1946, does not limit the assured’s choice of beneficiary. Compare 38 U.S.C. § 717 with 38 U.S.C. § 716. Accordingly, and as the facts now stand, the last formal designation of beneficiary under the policy in issue was that made April 4, 1950 and Ann Arthur is therein designated as principal beneficiary. Plaintiff’s first argument, therefore, must fail. The issue remaining is whether the acts of the assured, if he acted at all, with respect to revocation of the designation of Ann Arthur as principal beneficiary and/or the substitution of Marie Legatie for Ann Arthur as designated beneficiary of the policy was sufficient in law so as to require the United States to give effect thereto. Cotter v. United States, 1948, D.Md., 78 F.Supp. 495. To prove her claim plaintiff must establish (1) that the assured intended to designate his estate, or his wife (plaintiff) as the principal beneficiary, Senato v. United States, 1949, 2d Cir., 173 F.2d 493, and (2) that he affirmatively acted to exercise his right to change the beneficiary. Mitchell v. United States, 1948, 5th Cir., 165 F.2d 758; Collins v. United States, 1947, 10th Cir., 161 F.2d 64, cert. denied, 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866. With respect to the latter, the minimum requirement is that such change be evidenced in writing, Cooper v. United States, 1965, 6th Cir., 340 F.2d 845; Moths v. United States, 1950, 7th Cir., 179 F.2d 824; Cohn v. Cohn, 1948, 84 U.S.App.D.C. 218, 171 F.2d 828, cert. denied, 1949, 336 U.S. 962, 69 S.Ct. 892, 93 L.Ed. 1114, but the writing need not necessarily comply with the literal requirements of the applicable regulations. Boring v. United States, 1950, 10th Cir., 181 F.2d 931; Moths v. United States, supra; Senato v. United States, supra; Roberts v. United States, 1946, 4th Cir., 157 F.2d 906, cert. denied, 1947, 330 U.S. 829, 67 S.Ct. 870, 91 L.Ed. 1278. Ann Arthur alleges that in 1954 or 1955, and prior to the divorce, the assured told her “that he would continue to" }, { "docid": "17134929", "title": "", "text": "established that in order to effectively change a beneficiary in a NSLI policy, the insured must have acted affirmatively in writing. A number of cases have discussed the proof requirements on the element of intent. A writing by the decedent is a minimum requirement whether it be a personal letter, Moths v. United States, 7 Cir., (1950) 179 F.2d 824, or an incorrect form furnished by the Government, Mitchell v. United States, 5 Cir., (1948), 165 F.2d 758; Prose v. Davis, 7 Cir., (1949), 177 F.2d 478, cert. den. 339 U.S. 920, 70 S.Ct. 624, 94 L.Ed. 1344; Bew v. United States, 4 Cir. (1961), 286 F.2d 570, and Phillips v. United States, S.D.Ala. (1965), 238 F.Supp. 59. In Bew, the service-man had, prior to 1956, designated his wife and brother as co-beneficiaries. In April, the insured executed a DD Form 93 naming his wife beneficiary to the extent of $10,000. The Court stated, 286 F.2d page 571 — “This statement was made in a space relating to indemnity payments rather than insurance, but there was no right to indemnity in any such amount and the $10,000 could refer only to insurance.” In Bew, it also was stated at page 572: “ -:<• * * When servicemen are required to execute such a multitude of forms for varying purposes, the fact that his election and exercise of his rights are not expressed on that form having the prescribed color and number should not be a conclusive bar to the implementation of his purpose. When, as here, his purpose and intention clearly appear in the form DD 93, executed in 1956 when he was living with his wife and less than a year preceding his death, we think the Board properly gave it effect as a designation of Joyce as the beneficiary of the entire proceeds of both his insurance policies.” In all similar cases which have come to our attention, the courts have waived aside technicalities in order to give effect to the manifest intention of the insured. In the instant case, the District Court was fully justified in doing" }, { "docid": "11183883", "title": "", "text": "change.” Collins v. United States, 10 Cir., 1947, 161 F.2d 64, 67. See also Boring v. United States, 10 Cir., 1950, 181 F.2d 931; Bradley v. United States, fn. 5, supra, 143 F.2d at page 576. . As observed by Judge Huxman in Boring v. United States, fn. 8, supra, 181 F.2d at page 933: “Without exception, the courts have held that strict compliance with the regulations to effect a change in beneficiary by the soldier was not required, and that technicalities would be brushed aside in an effort to carry out the declared intent of the insured in this class of cases.” . “* * * The expressed intention of the insured to change the beneficiary, standing alone and unaccompanied by some affirmative act, having for its purpose the effectuation of his- intention, is insufficient to effect a change of beneficiary and the courts cannot act when he has not first attempted to act for him self. [Citing authority.] We can only liberally construe that which he has attempted to do in his own behalf, but for some reason has failed to accomplish the desired or intended result. This is a fundamental- rule of equitable jurisprudence which guides and directs equitable proceedings.” Bradley v. United States, fn. 5, supra, 143 F.2d at pages 576, 577." }, { "docid": "23079608", "title": "", "text": "effect only if it is received by the appropriate office prior to the death of the Employee and shall be effective as of the date of receipt of said written notice. * * * “If, at the death of the Employee, there be no designated Beneficiary as to all or any part of the insurance, then the amount of the insurance payable for which there is no designated Beneficiary shall be payable to the person or persons listed below surviving at the date of the Employee’s death, in the following order of precedence: (1) To the widow or widower of the Employee; (2) If neither of the above, to the child or children of such Employee and descendants of deceased children by representations; * * * ”, . 142 F.Supp. at page 322. . To the same effect see Kell v. United States, 5 Cir., 1953, 202 F.2d 143, “The cases are unanimous that in war-risk insurance cases involving change of beneficiary the courts will brush aside all legal technicalities in order to effectuate the manifest intent of the insured * * *. Literal compliance with the provisions of a policy is never necessary. * * ; Moths v. United States, 7 Cir., 1950, 179 F.2d 824, 826, “The clearly expressed intention and purpose of the soldier should control, and should not be thwarted by the fact that all the formalities for making this purpose effective may not have been complied with”; McKewen v. McKewen, 5 Cir., 1948, 165 F.2d 761, 764, “[T]he provisions for written notice of change of beneficiary in such insurance contracts are for the benefit of the insurer. * * * ” ; and Johnson v. White, 8 Cir., 1930, 39 F.2d 793, 796, “It is urged on behalf of appellee that the change of beneficiary was not made in the manner required by the regulations, and that the. change could only be made in the manner as provided. The regulations, however, were largely for the protection of the government, and could be waived by the goverment.” . While the face of the policy had originally" }, { "docid": "22156097", "title": "", "text": "99 A.L.R. 588. The view expressed by the court in the first reference commends itself to us, ‘Form, formality, and legal technicality must give way to common sense and remedial justice, when all doubt is removed as to the intent of the deceased soldier; . and when the purpose of the law has been complied with, there should be no hesitancy in carrying out the express wish of such deceased. The letter is a designation signed by the insured and the fact that it was sent to the mother to make the final designation, in the event of her death, instead of being sent to the bureau for record, should not defeat it.’ (280 F. 235.)” In Claffy v. Forbes, D.C.Wash., 280 F. 233, the insured veteran wrote a letter to his mother, in which, among other things, he said: “I have also made out a $10,000 life insurance to you. If I should be killed, it will be paid to you, $57.50 a month for 20 years, and I wish that if you should not live to get it all that you make it so that Agnes would get it.” The court held that the letter was a sufficient designation of a change of beneficiary and that the fact that it was not received by the Bureau until after the death of the insured veteran did not invalidate the designation. It will be observed that the Claffy case is cited with approval in Kaschefsky v. Kaschefsky, supra. See, also, United States v. Johnson, D.C. Ky., 46 F.2d 549. I am of the opinion that the statement in the report and the delivery of the policy by the insured to the wife constituted affirmative acts intended to effect a change in the beneficiary. For these reasons, I respectfully dissent from that part of the opinion which holds that Annie Mae Bradley is not the beneficiary under the policy." }, { "docid": "4390136", "title": "", "text": "PICKETT, Circuit Judge. The United States issued to Eleuterio De Los Santos a $10,000 National Service Life Insurance policy while he was a member of the armed forces of the United States. On the date of his death in July, 1957, the insured’s sister, Josephine D. Lovato, the plaintiff herein, was named as sole beneficiary of the policy in the designation filed with the Veterans Administration. After the designation of his sister as beneficiary, De Los Santos was married, and two children were bom as a result of this union. The Veterans Administration determined that the insured had effectuated a change of beneficiary of his insurance policy from his sister to his wife, Friedericka De Los Santos. The sister brought this action to recover the proceeds of the policy, and the widow was interpleaded. The trial court agreed with the Veterans Administration, and a judgment was entered awarding the proceeds of the policy to the widow. The sole question presented here is the sufficiency of the evidence to sustain the court’s finding that the insured had effectively changed the beneficiary of the policy. This court has had numerous cases of this nature in which it has held that literal compliance with the technical requirements established by regulation for accomplishing a change of beneficiary is not essential, but it must be established that the insured not only intended to change the beneficiary, but performed some affirmative act to carry out that intention. Blair v. United States, 10 Cir., 260 F.2d 237; Littlefield v. Littlefield, 10 Cir., 194 F.2d 695; Boring v. United States, 10 Cir., 181 F.2d 931; Widney v. United States, 10 Cir., 178 F.2d 880; Collins v. United States, 10 Cir., 161 F.2d 64, certiorari denied 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866; Bradley v. United States, 10 Cir., 143 F. 2d 573, certiorari denied 323 U.S. 793, 65 S.Ct. 429, 89 L.Ed. 632. The findings of the trial court are not to be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a), 28 U.S. C.A.; Boring v. United States, supra; Widney v. United States, supra. A number of" }, { "docid": "4390137", "title": "", "text": "had effectively changed the beneficiary of the policy. This court has had numerous cases of this nature in which it has held that literal compliance with the technical requirements established by regulation for accomplishing a change of beneficiary is not essential, but it must be established that the insured not only intended to change the beneficiary, but performed some affirmative act to carry out that intention. Blair v. United States, 10 Cir., 260 F.2d 237; Littlefield v. Littlefield, 10 Cir., 194 F.2d 695; Boring v. United States, 10 Cir., 181 F.2d 931; Widney v. United States, 10 Cir., 178 F.2d 880; Collins v. United States, 10 Cir., 161 F.2d 64, certiorari denied 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866; Bradley v. United States, 10 Cir., 143 F. 2d 573, certiorari denied 323 U.S. 793, 65 S.Ct. 429, 89 L.Ed. 632. The findings of the trial court are not to be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a), 28 U.S. C.A.; Boring v. United States, supra; Widney v. United States, supra. A number of witnesses, including the insured’s wife, testified that the insured intended to change the beneficiary, and the evidence fully supports the court’s finding as to the insured’s intention. Intention, standing alone, however, is not sufficient to effectuate a change. The question remains as to whether the insured took the affirmative action to carry out his intention which is necessary to effectuate the change. On June 17, 1956 the insured executed a Record of Emergency Data form, designated as “Form No. DD 93”. It is used to provide information as to the person to be notified in case of an emergency and also to designate the beneficiary of certain service connected benefits, including the beneficiary for the servicemen’s indemnity (Act of Apr. 25, 1951, ch. 39, 65 Stat. 33). This form included, in fine print, a statement that this designation did “not affect insurance (NSLI or USGLI) beneficiary designation.” The wife was designated as the beneficiary of the servicemen’s indemnity, and in the space providing for the share to be received, the figure “$10,-000” was inserted. The" }, { "docid": "2049089", "title": "", "text": "to lose itself in the analysis of cases; it should, once in a while, come back to the statute and the regulations thereunder — not to be led astray therefrom by the charity of expression by which a Court may be moved in each case of this character. ****** “Seriously, what is the more to be condemned is that the Court is legislating when it leaves the clear and unambiguous meaning of the statute and the regulations. Step by step, case by case, one gets further and further away from the statute and the regulations; until they are all but gone!” Cohn v. Cohn, 84 U.S.App.D.C. 218, 171 F.2d 828, 829, points out, “the require ment that .there be a writing is the minimum necessary to protect the public, the families and loved ones of servicemen and the interests of the deceased insured veterans themselves against unmitigated fraud. Not only is the requirement reasonable, but it is necessary.” In Bradley v. United States, 10 Cir, 143 F.2d 573, 576, insured’s mother was the named beneficiary. In a confidential report filed by the insured at group headquarters, it is stated that the wife is beneficiary of the Government insurance. The court held that such document was not designed as a notice contemplated by the statute or regulations relating to change of beneficiary and that it did not contain any expression of a desire or intention to change the beneficia ry but at most indicated a belief or understanding that the wife was the beneficiary. The court conceded that the evidence established an intent to change the beneficiary, and then goes on to say: “But the principle which actuates the courts in giving effect to the ascertained intentions of the insured has application only where the party has attempted to act for himself. The expressed intention of the insured to change the beneficiary, standing alone and unaccompanied by some affirmative act, having for its purpose the effectuation of his intention, is insufficient to effect a change of beneficiary and the courts cannot act when he has not first attempted to act for" }, { "docid": "2184996", "title": "", "text": "in the field of National Life Insurance the cases are legion which hold that in judging of the efficacy of an attempted change of beneficiary “the courts brush aside all legal technicalities in order to effectuate the manifest intention of the insured”. Roberts v. United States, 4 Cir., 157 F. 2d 906, 909, certiorari denied 330 U.S. 829, 67 S.Ct. 870, 91 L.Ed. 1278. This case may be cited as typical of this long, unbroken, line of authority. Thus it is abundantly established that a change of beneficiary may be shown by proof of intent to make the change coupled with “positive action on the part of the insured evidencing an exercise of the right to change the beneficiary.” Collins v. United States, 10 Cir., 161 F.2d 64, 67, certiorari denied 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866. In this case it was stated that the requirement of “positive action” is satisfied if “the insured did everything that was necessary on his part to evidence a change in beneficiary.” In Roberts v. United States, supra, 157 F.2d at page 909, it was said that the requirement of positive action was satisfied if the insured “has done everything reasonably within his power to accomplish his purpose, leaving only ministerial acts to be performed by the insurer”. To the same effect is Mitchell v. United States, 5 Cir., 165 F.2d 758, 2 A.L.R.2d 484. In Shapiro v. United States, 2 Cir., 166 F.2d 240, certiorari denied Shapiro v. Shapiro, 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1779, this court indicated concurrence with these cases. In McCollum v. Sieben, 8 Cir., 211 F.2d 708, 712, it was said that the requirement of positive action was satisfied if the insured, “before his death, * * * had done all that reasonably could have been expected of him to bring about the change”. In Senato v. United States, 2 Cir., 173 F.2d 493, 495, this court said that the action taken to carry out his intent was enough “so long as he might reasonably be supposed to have thought it enough.” In" }, { "docid": "14081767", "title": "", "text": "This Court is no stranger to appeals in which we are required to eon- sider whether a change in beneficiary is effective that does not comply with the terms of a National Service Life Insurance' policy. The legal principles furnishing the basis for these holdings are relatively simple and well settled. The cases are unanimous in the view that courts will brush aside legal technicalities in order to effectuate the manifest intent of the insured. Mere intent however is not enough: there must be some affirmative act on the part of the insured evidencing an exercise of the right to change the beneficiary. Ferguson v. Knight, 5 Cir., 1959, 264 F.2d 176. The difficulty comes in determining the kind and degree of affirmative action necessary to effect a change. As stated in Mitchell v. United States, 5 Cir., 1948, 165 F.2d 758, 760, 2 A.L.R.2d 484: “The cases are also unanimous that a mere intent to change a beneficiary is not enough. Such an intent must be followed by some affirmative act on the part of the insured evidencing an exercise of the right to change the beneficiary. Where the courts differ is as to the degree of affirmative action necessary to effect a change. Literal compliance with the provisions of a policy is never necessary.” Again in the Mitchell opinion this Court said: “These insurance cases are difficult of decision. Each must be decided in the light of its own facts. * * * It is said that a combination of intent and act is required, but to say in these insurance cases that though intention to change the beneficiary is proved to the hilt, no effective formal act having been done no change can be held to have been made, is not to brush technicalities very far.” In the instant case the district court found that “the most favorable inference in support of [appellant’s] position * * is that the insured thought his National Service Life Insurance was payable to his estate”; but “mistaken belief, without more, is not sufficient”. The appellant contends that in a record clearly" }, { "docid": "22431961", "title": "", "text": "original of the Government Insurance Report Form filled out by Hardwick: in Nebraska and filed with the War Department, we know to have been lost. Other important papers and documents may also have been lost. The testimony of Hardwick’s brother officer, Lancaster, and Hardwick’s letter written from England to his wife go to strengthen the evidence not only of Hardwick’s intent but also of his belief that he had carried it out. These insurance cases are difficult of decision. Each must be decided in the light of its own facts. The strict law is that a change of beneficiary must be made in writing and in proper form. Where this has not been done, the courts will brush aside technicalities to give effect to the intention of the insured. It is said that a combination of intent and act is required, but to say in these insurance cases that though intention to change the beneficiary is proved to the hilt, no effective formal act having been done no change can be held to .have been made, is not to brush technicalities very far aside. If a man possesssing the degree of literacy required of an officer in the United States Army Air Corps writes, “I have taken out insurance and I have made you the beneficiary,” surely it is subserving technicality to say that this is not sufficient evidence of an exercise of his right to change. True, it is not an actual change; but it is strong, almost incontrovertible, evidence of a change. In the case at bar the facts in combination lead irresistibly to the conclusion that the insured, Hardwick, not only intended to make his wife the beneficiary of his insurance, but had also affirmatively acted to make her such. The judgment appealed from is affirmed. Bradley v. United States, 10 Cir., 143 F.2d 573; Roberts v. United States, 4 Cir, 157 F.2d 906. Bradley v. United States, supra; Roberts v. United States, supra; Johnson v. White, 8 Cir., 39 F.2d 793; Egleston v. United States, D.C., 71 F.Supp. 114. Collins v. United States, 10 Cir., 161" }, { "docid": "14081766", "title": "", "text": "WISDOM, Circuit Judge. The dispute in this case is between the divorced wife and the widow of an insured veteran. Each asserts the right to the proceeds of a National Service Life Insurance policy in the amount of $10,-000. The question for decision is whether the insured, Oliver Stone, effected a valid change of beneficiary from Mary Jane Shackelford, his divorced wife, to Juanita Stone, his widow, in spite of his failure to notify the Veterans Administration of a change of beneficiary. Mrs. Stone, individually and as executrix, sued Mrs. Shackelford and the United States of America under the National Service Life Insurance Act of 1940, 38 U.S.C.A. § 801 et seq., and the World War Veterans Act of 1924, as amended, 38 U.S.C.A. § 445. The district court granted summary judgment for Mrs. Shackelford based on the pleadings, the testimony of Mrs. Stone and her attorney, and the administrative file of the Veterans Administration showing an agency determination in favor of Mrs. Shackelford. Mrs. Stone appeals from the summary judgment. We reverse and remand. This Court is no stranger to appeals in which we are required to eon- sider whether a change in beneficiary is effective that does not comply with the terms of a National Service Life Insurance' policy. The legal principles furnishing the basis for these holdings are relatively simple and well settled. The cases are unanimous in the view that courts will brush aside legal technicalities in order to effectuate the manifest intent of the insured. Mere intent however is not enough: there must be some affirmative act on the part of the insured evidencing an exercise of the right to change the beneficiary. Ferguson v. Knight, 5 Cir., 1959, 264 F.2d 176. The difficulty comes in determining the kind and degree of affirmative action necessary to effect a change. As stated in Mitchell v. United States, 5 Cir., 1948, 165 F.2d 758, 760, 2 A.L.R.2d 484: “The cases are also unanimous that a mere intent to change a beneficiary is not enough. Such an intent must be followed by some affirmative act on the part" }, { "docid": "11183882", "title": "", "text": "evidence of a change of beneficiary. However, the court considered the statement only from the standpoint of its representing in and of itself an attempt to effect the change. Here, as already noted, there was testimony of the insured’s having told his brother that he had sent in a form changing the beneficiary. The confidential statement tends at least to substantiate this declaration. It is not inconceivable that such a form was actually sent but became lost or misplaced in the files of the Administration.” The Shapiro case, fn. 7, supra, involved the use of War Department, Adjutant General’s Office Form No. 41 which without exception has been held to validly effect a change of beneficiary. . “It has been held without exception that a mere intent to change a beneficiary is not enough. Such an intent must be followed by positive action on the part of the insured evidencing an exercise of the right to change the beneficiary. Where the courts diverge is as to the degree of affirmative action necessary to effect a change.” Collins v. United States, 10 Cir., 1947, 161 F.2d 64, 67. See also Boring v. United States, 10 Cir., 1950, 181 F.2d 931; Bradley v. United States, fn. 5, supra, 143 F.2d at page 576. . As observed by Judge Huxman in Boring v. United States, fn. 8, supra, 181 F.2d at page 933: “Without exception, the courts have held that strict compliance with the regulations to effect a change in beneficiary by the soldier was not required, and that technicalities would be brushed aside in an effort to carry out the declared intent of the insured in this class of cases.” . “* * * The expressed intention of the insured to change the beneficiary, standing alone and unaccompanied by some affirmative act, having for its purpose the effectuation of his- intention, is insufficient to effect a change of beneficiary and the courts cannot act when he has not first attempted to act for him self. [Citing authority.] We can only liberally construe that which he has attempted to do in his own" }, { "docid": "17558494", "title": "", "text": "exercise his right to change the beneficiary. Mitchell v. United States, 1948, 5th Cir., 165 F.2d 758; Collins v. United States, 1947, 10th Cir., 161 F.2d 64, cert. denied, 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866. With respect to the latter, the minimum requirement is that such change be evidenced in writing, Cooper v. United States, 1965, 6th Cir., 340 F.2d 845; Moths v. United States, 1950, 7th Cir., 179 F.2d 824; Cohn v. Cohn, 1948, 84 U.S.App.D.C. 218, 171 F.2d 828, cert. denied, 1949, 336 U.S. 962, 69 S.Ct. 892, 93 L.Ed. 1114, but the writing need not necessarily comply with the literal requirements of the applicable regulations. Boring v. United States, 1950, 10th Cir., 181 F.2d 931; Moths v. United States, supra; Senato v. United States, supra; Roberts v. United States, 1946, 4th Cir., 157 F.2d 906, cert. denied, 1947, 330 U.S. 829, 67 S.Ct. 870, 91 L.Ed. 1278. Ann Arthur alleges that in 1954 or 1955, and prior to the divorce, the assured told her “that he would continue to take care of our son, and that I would continue to be the beneficiary of his life insurance which totalled Thirty Thousand ($30,000.00) Dollars, and which included his National Service Life Insurance of Ten Thousand ($10,000.00) Dollars. * * * Under these circumstances, I told him that I had no objection to a divorce. * * * ” (Affid. of Ann Arthur, pp. 2-3). Marie Louise Legatie disputes the aforesaid statement and declares “that she was assured by her husband that the National Service Life Insurance was for her and their son Bruce.” (Affid. of Marie Louise Legatie, p. 3). Such statements, if admissible in evidence, are relevant on the issue of intent, see Hawkins v. Hawkins, 1959, 5th Cir., 271 F.2d 870; standing alone, however, they are insufficient to-establish the fact that the change has, or has not, been made. See Littlefield v. Littlefield, 1952, 10th Cir., 194 F.2d 695; Butler v. Butler, 1949, 5th Cir., 177 F.2d 471. The only evidence in writing that would aid plaintiff herein is the aforementioned Form Number" }, { "docid": "2049092", "title": "", "text": "by acts through which he attempted to accomplish this change. Not only did the insured express his purpose and intention to make this change, but he did everything he might reasonably have been expected to do, under the circumstances, to effectuate such change.” 39 F.2d 793, 796. Bratcher v. United States, 8 Cir, 205 F.2d 953, involved a change of beneficiary by a soldier in the combat zone in Korea. The applicable standards for determining the sufficiency of the affirmative act are thus stated: “The decisions of the courts too have taken a liberal path in according recognition to attempted beneficiary changes in national service life policies. With regard to the limitations and realities of military life, the courts have brushed aside general legal technicalities and have made their consideration a matter of evaluating practicably the substance in each particular situation. While keeping in mind, of course, the burden entitled to be exacted in the establishing of a change in beneficiary designation, they have dealt with a situation hospitably and primarily from the standpoint of the insured, and have in general recognized changes in beneficiaries as having occurred whenever they have found some persuasive indication of an intent on the part of the insured to make such a change and some written step taken by him to that end as an assumed effectuative act.” 205 F.2d 953, 955. In McCollum v. Sieben, supra, we held that the named beneficiary, whom dece dent had divorced and with whom decedent had made a complete property and alimony settlement which did not specifically mention the N.S.L.I. policy, was entitled to the proceeds of the policy. As a basis for our decision, we said: “Evidence of intention to change the beneficiary ‘standing alone and unaccompanied by some affirmative act, having for its purpose the effectuation of his intention, is insufficient to effect a change of beneficiary and the courts cannot act when he has not first attempted to act for himself.’ Bradley v. United States, 10 Cir., 143 F.2d 573, 576, and cases cited therein; * * * ” 211 F.2d 708, 712. Thus," }, { "docid": "22936565", "title": "", "text": "since these writings are supported by the disinterested testimony of the brother officer who assisted the insured to change the beneficiary and saw him execute the document and deliver it to the clerk at the Naval air base. The testimony of the officer was taken by deposition since he feared he would jeopardize his employment if he left his place of business in Macon and went to Norfolk for the trial; but the visit -of the two couples to the air base for th? specific purpose is corroborated by the three survivors, and the recollection of the brother officer is so explicit and circumstantial that we think it ought not be rejected. Moreover, it cannot be disputed that both officers executed the beneficiary slip for the bonus in favor of their wives on December 21, 1942, two days after they were married, because the documents were produced. The discrepancy in the dates in other papers and the failure of the change of beneficiary to reach its destination is easily understood when one considers the volume of business transacted at military posts and the character of the administrative organization thrown together to meet the emergency of war. Whatever doubts are engendered in the case are allayed by the unquestioned authenticity of the documents signed by the insured after his marriage in which he indicated that he had actually made the necessary change long before the present dispute arose. These papers manifest the normal desire of a recently married man to protect his wife, and lead us to the clear conviction that the findings below were erroneous in this respect and should be reversed. We are in accord with the views expressed in Bradley v. United States, 10 Cir., 143 F.2d 573, where it is said that in war risk insurance cases involving change of beneficiary the courts brush aside all legal technicalities in order to effectuate the manifest intention of the insured; and that if he manifests an intent to make a change and has done everything reasonably within his power to accomplish his purpose, leaving only ministerial acts to be" }, { "docid": "14826915", "title": "", "text": "proceedings involves two theories, one being that the divorce court had the power by decree to designate as a beneficiary of a National Service Life Insurance policy one other than that designated by the insured, and the other being that the filing of the complaint in the divorce action in which it was alleged that the insurance policy was community property operated as a lis pendens on the right of the insured to change the beneficiary. In the annotation to Mitchell v. United States, 5 Cir., 1948, 165 F.2d 758, 2 A.L.R.2d 484, the annotator states 2 A.L.R.2d at page 492: “* * * cases dealing with change of beneficiary in ordinary contracts of insurance are of little, if any,- value as authority for cases arising out of an interpretation of the National Life Insurance Act. The reason for their lack of importance as precedents is the fact that a war risk insurance policy is a contract completely statutory in basis, and that the rights and duties of the parties stem not from the rules which govern private life insurance, but from the statutes and regulations passed expressly for war risk insurance.” In the case of Woodward v. United States, 8 Cir., 1948, 167 F.2d 774, at pages 778-779, the Court of Appeals for this circuit stated: “Policies of National Service Life Insurance are, of course, contracts of the United States and possess the same legal incidents as other gov-erment contracts. * * * The validity and construction of such policies present questions of federal .law.” See also McCollum v. Sieben, 8 Cir., 1954, 211 F.2d 708, where it was held that a property settlement and decree of divorce in themselves did not operate to change the beneficiary under a National Service Life Insurance policy. In the case of Dyke v. Dyke, D.C.1954, 122 F.Supp. 529, at pages 535-536, the Court stated: “A life insurance policy in which the right to name or change the beneficiary is reserved to the insured is a contract in which the insurer agrees to pay the death benefit to the beneficiary designated by the" }, { "docid": "17134928", "title": "", "text": "to the authenticity of these documents. They are clearly relevant in determining the intent of the serviceman with respect to his government benefits. They are relevant also to the question of what action he took to implement his intent. Therefore, these documents were properly considered by the Court. Plaintiff’s counsel argues vigorously that the District Court was not authorized in making a number of inferences such as that the serviceman became completely out of touch with his mother, the plaintiff herein. The forms before the District Court as part of the evidence, show that his father continued to reside in Marion, Kentucky, but that the mother’s last name was changed, and that she moved to Indiana. Surely it was not a very violent inference that Cox’s mother had been divorced and was remarried. Furthermore, on four successive forms (Exhibits K through N), Denver Cox failed to include his mother’s address. He had always done so before. It was a permissible inference that Denver did not know his mother’s address on those dates. It is well established that in order to effectively change a beneficiary in a NSLI policy, the insured must have acted affirmatively in writing. A number of cases have discussed the proof requirements on the element of intent. A writing by the decedent is a minimum requirement whether it be a personal letter, Moths v. United States, 7 Cir., (1950) 179 F.2d 824, or an incorrect form furnished by the Government, Mitchell v. United States, 5 Cir., (1948), 165 F.2d 758; Prose v. Davis, 7 Cir., (1949), 177 F.2d 478, cert. den. 339 U.S. 920, 70 S.Ct. 624, 94 L.Ed. 1344; Bew v. United States, 4 Cir. (1961), 286 F.2d 570, and Phillips v. United States, S.D.Ala. (1965), 238 F.Supp. 59. In Bew, the service-man had, prior to 1956, designated his wife and brother as co-beneficiaries. In April, the insured executed a DD Form 93 naming his wife beneficiary to the extent of $10,000. The Court stated, 286 F.2d page 571 — “This statement was made in a space relating to indemnity payments rather than insurance, but there" }, { "docid": "12156569", "title": "", "text": "support this view, but the form actually signed was adequate in its language for that purpose.” Though a regulation of the Veterans Administration required that notice of the change be forwarded “by the insured or his agent,” the appellee is not barred by the fact that notice did not reach the Veterans Administration until after the death of the insured. Appellant contends that by D.C. Code 1940, § 14 — 302, 41 Stat. 567, appellee’s account of her husband’s conversation with the Finance Office clerk should have been excluded. But the cited statute “seeks to protect only persons ‘legally representing the deceased’ against claims which may be fraudulent.” No one is legally representing the deceased in this suit. The statute is inapplicable for the further reason that the change of beneficiary was not a “transaction” between the insured and his wife but between him and his insurer. Affirmed. 54 Stat. 1010, § 602(g), as amended, 38 U.S.C.A. § 802(g). Designation of beneficiary of a “six-months gratuity” payment. The War Department afterwards adopted a different and unambiguous Form No. 41. Roberts v. United States, 4 Cir., 1946, 157 F.2d 906, 909, certiorari denied sub nom. Roberts v. Roberts, 330 U.S. 829, 67 S.Ct. 870, 91 L.Ed. 1278; Collins v. United States, 10 Cir., 1947, 161 F.2d 64, certiorari denied, 331 U.S. 859, 67 S.Ct. 1756, 91 L.Ed. 1866; Mitchell v. United States, 5 Cir., 1948, 165 F.2d 758, 760; McKewen v. McKewen, 5 Cir., 1948, 165 F.2d 761, certiorari denied, 68 S.Ct. 1530; Gann v. Meek, 5 Cir., 1948, 165 F.2d 857, 859; Shapiro v. United States, 2 Cir., 1948, 166 F.2d 240, certiorari denied sub nom. Shapiro v. Shapiro, 68 S. Ct. 1533. Cf. Bradley v. United States, 10 Cir., 1944, 143 F.2d 573, 576, certiorari denied sub nom. Bradley v. Bradley, 323 U.S. 793, 65 S.Ct. 429, 89 L.Ed. 632. Shapiro v. United States, supra note 4, 166 F.2d at page 241. McKewen v. McKewen, supra note 4, 165 F.2d at page 764; Collins v. United States, supra note 4, 161 F.2d at page 68. Duckett v. Duckett, 77" }, { "docid": "22936566", "title": "", "text": "of business transacted at military posts and the character of the administrative organization thrown together to meet the emergency of war. Whatever doubts are engendered in the case are allayed by the unquestioned authenticity of the documents signed by the insured after his marriage in which he indicated that he had actually made the necessary change long before the present dispute arose. These papers manifest the normal desire of a recently married man to protect his wife, and lead us to the clear conviction that the findings below were erroneous in this respect and should be reversed. We are in accord with the views expressed in Bradley v. United States, 10 Cir., 143 F.2d 573, where it is said that in war risk insurance cases involving change of beneficiary the courts brush aside all legal technicalities in order to effectuate the manifest intention of the insured; and that if he manifests an intent to make a change and has done everything reasonably within his power to accomplish his purpose, leaving only ministerial acts to be performed by the insurer, the courts will treat that as done which ought to have been done and give effect to the insured’s will. In the pending case, we have found that the insured not only expressed' his intention to change the beneficiary in the policy, but also set in motion the machinery devised by the United States to accomplish the desired result. In this way he performed the affirmative act for the lack of which the majority of the court in the Bradley case concluded that the change of beneficiary had not been accomplished. Since such an act was performed here, we have no occasion to consider the view expressed by Judge Phillips in his dissenting opinion in that case that the statement in a confidential report of an officer that he has designated his wife as beneficiary is itself sufficient to effectuate the change. Since the judgment in this case must be reversed, we have no occasion to consider the point raised by the United States in its appeal that that part of" } ]

[ { "docid": "23328359", "title": "", "text": "miscarriage of justice if the judgment were permitted to stand. In distinguishing Klapprott and denying relief, the court said: “By no stretch of imagination can the voluntary, deliberate, free, untrammeled choice of petitioner not to appeal compare with the Klapprott situation.” 340 U.S. 200, 71 S.Ct. 212. In the present case the appellants did appeal. They exhausted their remedies in the courts, and when the litigation was concluded, there was a final judgment against them which, according to a later decision, was wrong. The only difference in appellants’ situation and that of Ackermann, is that their appeal was perfected and the judgment became final after the appeal. In attempting to obtain relief from a final judgment, there is no reason why an unsuccessful appellant should be in a better position than one who did not appeal. No cases have been cited, and we have found none, which hold that relief from final judgments may be had under Rule 60(b), or otherwise, which involve property rights, particularly those pertaining to real estate titles. Litigation must end some time, and the fact that a court may have made a mistake in the law when entering judgment, or that there may have been a judicial change in the court’s view of the law after its entry, does not justify setting it aside. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982; Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475; Elgin Nat. Watch Co. v. Barrett, 5 Cir., 213 F.2d 776; Berryhill v. United States, 6 Cir., 199 F.2d 217; United States v. Kunz, 2 Cir., 163 F.2d 344. United States v. Ohio Power Company, 353 U.S. 98, 77 S.Ct. 652, 1 L.Ed.2d 683, did not involve relief under Rule 60(b), and has no application here. Affirmed. . This decision reversed the Supreme Court of Kansas. Walker v. City of Hutchinson, 178 Kan. 263, 284 P.2d 1073. . When this case had run its course in the courts, the City of Wichita entered upon the land and installed a 06 inch water pipeline, and" } ]

[ { "docid": "18709618", "title": "", "text": "“based” on a prior judgment where the earlier opinion is merely precedent for that decision. Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645, 650 (1st Cir. 1972); Wallace Clark & Co. v. Acheson Industries, 394 F.Supp. 393, 395 n.4 (S.D.N.Y.1975). As Professor Moore states: “[Wjhile 60(b)(5) authorizes relief from a judgment on the ground that the prior judgment upon which it is based has been reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that the taw applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.” 7 Moore’s Federal Practice ¶ 60.26[3] at 325 (2d ed. 1975). If any error was committed in following such Courts of Appeals decisions as West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1087 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971), when the defendants’ motions for summary judgment were denied, that error could have been remedied on appeal. A change in decisional law is simply not a ground for relief under Rule 60(b)(5). Lubben v. Selective Service System Local Bd. No. 27, supra. A Rule 60(b) motion cannot be used as a substitute for appeal. Rinieri v. News Syndicate Co., 385 F.2d 818, 822 (2d Cir. 1967); Moore’s Federal Practice, supra, ¶ 60.26[4] at 333-34 (2d ed. 1975). See also Class v. Norton, 507 F.2d 1058, 1063 (2d Cir. 1974). Moreover, the instant final judgments have no prospective application with respect to defendants Eaton and Sargent. The language of Rule 60(b)(5) providing for relief from final judgment when “it is no longer equitable that the judgment should have prospective application” embodies the traditional power of a court of equity to alter an injunctive decree to adapt to new or unforeseen conditions. Mr. Justice Cardozo succinctly noted in United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932), that “a court does not abdicate its power to revoke or modify its mandate if satisfied that what it has" }, { "docid": "16892536", "title": "", "text": "of status which has prospective effect, and there is no reason why in modern times it should not be governed by equitable principles. The decisions under Rule 60 (b)(5) (adopted by the 1948 amendments to the Federal Rules of Civil Procedure) continue this history of equitable adjustment to changing conditions of fact and law. McGrath v. Potash, 199 F. 2d 166, a case decided under subdivision (6), but to which subdivision (5), by the respondent’s admission, was equally applicable, is directly in point. There several aliens obtained a decree from a District Court enjoining the Attorney General from proceeding to deport them without complying with the hearing requirements of the Administrative Procedure Act. Pending appeal by the Government, this Court held in Wong Yang Sung v. McGrath, 339 U. S. 33, that the Administrative Procedure Act did indeed apply to deportation proceedings. Seeing that further resistance would be futile, the Attorney General dismissed his own appeal by agreement. Shortly thereafter Congress overruled the Wong Yang Sung decision and expressly declared that proceedings relative to the exclusion or expulsion of aliens should not be subject to the Administrative Procedure Act. 64 Stat. 1048. The Government then moved under Rule 60 (b) for a dissolution of the injunction against it, relying on this change in law, and the motion was granted. The United States in this case seeks to distinguish that decision by asserting that here “the continuing force of the decree derives from facts fully accrued and litigated in the original judgment.” True enough; but here, as in McGrath, although the facts were fully accrued at the time of the decree and have not changed, the law has (so petitioner asserts) radically changed, and in that situation it is unjust to give the judgment prospective effect. The cases under Rule 60 (b)(5) relied on by the United States are readily distinguishable. In Title v. United States, 263 P. 2d 28, cert. denied, 359 U. S. 989, Elgin Nat’l Watch Co. v. Barrett, 213 F. 2d 776, and Berryhill v. United States, 199 F. 2d 217, it was entirely possible that the" }, { "docid": "6793074", "title": "", "text": "only does the Bankruptcy Court have the power to vacate a final judgment but also may exercise this power very liberally. The only criteria necessary is to “accomplish justice.” Specifically, “Rule 60(b)(6) should be liberally applied to accomplish justice and when a cause is properly within clause (6), the Court has broad legal discretion to grant or deny relief in light of the relevant circumstances.... ” In re Ireco Industries, Inc., 2 B.R. 76, 84 (Bkrtcy.D.Oregon 1979). In short, Rule 60(b)(6) is a reservoir of equitable power to do justice in particular cases where relief is warranted. Matter of Smith, 3 B.R. 224 (Bkrtcy.E.D.Virginia 1980). Unquestionally, therefore, it is well within the jurisdictional ambit of this Court to vacate an order or decree which is res judicata. We are now brought to the question of what circumstances warrant the exercise of this power. The principal purpose of Rule 60(b)(6) is to deal with unforeseen contingencies. The basic policy tension in determining whether a final judgment should be set aside revolves around whether the factual or legal circumstances have changed to such an extent that the Court’s interest in deciding the case on the merits outweighs its interests in orderly procedures and the finality of judgments. When strict adherence to the doctrine of res judicata results in injustice being done in light of changing circumstances, the equitable relief of Rule 60(b)(6) is required. “A Court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” United States v. Swift and Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999. When applied to the facts at hand, it is apparent that a denial of the debtors’ relief founded solely upon res judicata would result in the transformation of the Order issued by this Court on March 17, 1982 into an “instrument of wrong”. After the lifting of the automatic stay but prior to the sheriff’s sale of the debtors’ residence, employment circumstances of the debtors changed dramatically. Not only" }, { "docid": "16892537", "title": "", "text": "exclusion or expulsion of aliens should not be subject to the Administrative Procedure Act. 64 Stat. 1048. The Government then moved under Rule 60 (b) for a dissolution of the injunction against it, relying on this change in law, and the motion was granted. The United States in this case seeks to distinguish that decision by asserting that here “the continuing force of the decree derives from facts fully accrued and litigated in the original judgment.” True enough; but here, as in McGrath, although the facts were fully accrued at the time of the decree and have not changed, the law has (so petitioner asserts) radically changed, and in that situation it is unjust to give the judgment prospective effect. The cases under Rule 60 (b)(5) relied on by the United States are readily distinguishable. In Title v. United States, 263 P. 2d 28, cert. denied, 359 U. S. 989, Elgin Nat’l Watch Co. v. Barrett, 213 F. 2d 776, and Berryhill v. United States, 199 F. 2d 217, it was entirely possible that the remedy by appeal would have been successfully invoked. And in Collins v. City of Wichita, 254 F. 2d 837, a modification of the judgment would have retroactively disturbed existing rights and financial reliance on the judgment. In Scotten v. Littlefield, 235 U. S. 407, relief was denied in a situation virtually identical to this case. But the point actually decided there was that a bill of review would not lie, and it is universally conceded that Rule 60 (b) is not limited to those situations where the old confusing collateral remedies would have been available. In sum, the District Court need “not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” United States v. Swift & Co., 286 U. S. 106, 114-115. It is revolting that petitioner should be subject to deportation because of a decree which he could not successfully have attacked on appeal and which subsequent events may have rendered erroneous. The principle of" }, { "docid": "16611091", "title": "", "text": "the plaintiff expand its chain into Massachusetts and the parties come into direct competition, then it may be that the relief granted would not give the plaintiff adequate protection. But it will be time enough to consider this question when it arises, for the parties are not irrevocably bound by the decree as it stands. If circumstances change the court below is open to the plaintiff to seek modification 'of the present decree under the principle enunciated in United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, in which Mr. Justice Cardozo, speaking for the court, said that even when power to modify a decree of injunction has not been reserved therein, that power nevertheless exists ‘by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need’, and then, after citing cases, continued: ‘The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supeiwision of changing conduct or conditions and are thus provisional and tentative * * * a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.’ See also S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176, 177.” A similar statement appears in the case of Fairway Foods v. Fairway Markets, supra, 227 F.2d at page 198 as follows: “There remains for disposition on this appeal, the injunction which enjoins plaintiff from using the word ‘Fairway’ in the territory now occupied by defendant, should plaintiff at some time in the future act upon its asserted intention of extending its business into such territory. Government by injunction is never favored, and the discretion of the chancellor in favor of granting the writ is withheld except to prevent impending injury or wrong, and is not granted upon" }, { "docid": "7609851", "title": "", "text": "State as to what acts are forbidden and what are permitted. Finally, the State urges that enjoining the State from spending its own funds on the planning and design of West-way constituted an abuse of discretion. Before undertaking to review the district court’s injunction of October 31, it is necessary first to decide what type of injunction it is. DISCUSSION I An injunction is an equitable remedy issued under established principles which guide courts of equity. A preliminary injunction is issued to maintain the status quo until there can be a hearing on the merits. See Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir.1953); Gas & Electric Securities Co. v. Manhattan & Queens Traction Corp., 266 F. 625, 632 (2d Cir.1920), appeal dismissed sub nom Begg v. New York City, 262 U.S. 196, 43 S.Ct. 513, 67 L.Ed. 946 (1923). A final or permanent injunction is granted only after a hearing on the merits, Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir.1967), and may not be changed in the interest of the defendants if the purposes of the litigation as incorporated in the decree have not been fully achieved, United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562 (1968). An injunction is an ambulatory remedy that marches along according to the nature of the proceeding. It is executory and subject to adaption as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change. See United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). Thus, the nature and effect of the decree granting an injunction must be examined first when considering its modification. A trial court’s power to modify, like the power over all its orders, is inherent. Nonetheless Rule 60(b)(5) of the Federal Rules of Civil Procedure has stated this inherent power as a rule by noting that a court may relieve a party from a judgment where" }, { "docid": "22044839", "title": "", "text": "on” a prior judgment within the meaning of Rule 60(b) (5), the prior judgment must be a necessary element of the decision, giving rise, for example, to the cause of action or a successful defense. See, e. g., Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713 (1891), Michigan Surety Co. v. Service Machinery Corp., 277 F.2d 531 (5th Cir. 1960); Block v. Thousandfriend, 170 F.2d 428 (2d Cir. 1948). It is not sufficient that the prior judgment provides only precedent for the decision. “It should be noted that while 60(b) (5) authorizes relief from a judgment on the ground that the prior judgment upon which it is based has been reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.” 7 Moore’s Federal Practice ¶ 60.26[3] at 325. If reliance upon Lane or if Lane itself was in error, this could have been corrected by an appeal of the Lubben injunction. Upon dismissal of the Lubben appeal that decision became final; a change in applicable law does not provide sufficient basis for relief under Rule 60(b) (5). See Title v. United States, 263 F.2d 28 (9th Cir.), cert, denied, 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978 (1959); Collins v. City of Wichita, 254 F.2d 837 (10th Cir. 1958); Berryhill v. United States, 199 F.2d 217 (6th Cir. 1952). III In United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), the Court held that it was the inherent right of a court of equity to modify an injunction in adaptation to changed circumstances which rendered the injunction an instrument of wrong. The clause of Rule 60(b) (5) allowing for relief from the inequitable prospective application of a judgment was designed primarily to incorporate that inherent power, and the clause should be used in light of the Swift decision. “There is need to keep in mind steadily the limits of inquiry" }, { "docid": "22141000", "title": "", "text": "absence of the decree, that the unlawful acts it prohibited will again occur. This Court so held in Dowell, a case in which state defendants sought relief from a school desegregation decree on the ground that the district was presently operating in compliance with the Equal Protection Clause. The Court agreed with the defendants that “a finding by the District Court that the Oklahoma City School District was being operated in compliance with . . . the Equal Protection Clause” was indeed relevant to the question whether relief was appropriate. 498 U. S., at 247. But the Court added that, to show entitlement to relief, the defendants must also show that “it was unlikely that the [school board] would return to its former ways.” Ibid. Only then would the “purposes of the desegregation litigation ha[ve] been fully achieved.” Ibid. The principle, as applicable here, simply underscores the petitioners’ failure to show that the “changes” to which they pointed were sufficient to warrant entirely setting aside the original court judgment. Fifth, the majority mentions, but fails to apply, the basic Rule 60(b)(5) principle that a party cannot dispute the legal conclusions of the judgment from which relief is sought. A party cannot use a Rule 60(b)(5) motion as a substitute for an appeal, say, by attacking the legal reasoning underlying the original judgment or by trying to show that the facts, as they were originally, did not then justify the order’s issuance. Browder v. Director, Dept. of Corrections of III., 434 U. S. 257, 263, n. 7 (1978); United States v. Swift & Co., 286 U. S. 106, 119 (1932) (party cannot claim that injunction could not lawfully have been applied “to the conditions that existed at its making”). Nor can a party require a court to retrace old legal ground, say, by remaking or rejustifying its original “constitutional decision every time an effort [is] made either to enforce or modify” an order. Rufo, supra, at 389-390 (internal quotation marks omitted); see also Frew, supra, at 438 (rejecting argument that federal court lacks power to enforce an order “unless the court" }, { "docid": "22704492", "title": "", "text": "predicate to modification of the meat-packers’ consent decree. Id., at 119. Read out of context, this language suggests a “hardening” of the traditional flexible standard for modification of consent decrees. New York State Assn. for Retarded Children, Inc. v. Carey, 706 F. 2d 956, 968 (CA2), cert. denied, 464 U. S. 915 (1983). But that conclusion does not follow when the standard is read in context. See United States v. United Shoe Machinery Corp., 391 U. S. 244, 248 (1968). The Swift opinion pointedly distinguished the facts of that case from one in which genuine changes required modification of a consent decree, stating: “The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. .. . The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be.” 286 U. S., at 114-115. Our decisions since Swift reinforce the conclusion that the “grievous wrong” language of Swift was not intended to take on a talismanic quality, warding off virtually all efforts to modify consent decrees. Railway Employes emphasized the need for flexibility in administering consent decrees, stating: “There is ... no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.” 364 U. S., at 647. The same theme was repeated in our decision last Term in Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 246-248 (1991), in which we rejected the rigid use of the Swift “grievous wrong” language as a barrier to a motion to dissolve a desegregation decree. There is thus little basis for concluding that Rule 60(b) misread the Swift opinion" }, { "docid": "5419006", "title": "", "text": "its opinions that an injunction may be modified on the basis of a change in the case law. The Court held in System Federation No. 91 v. Wright, 364 U.S. at 642, 81 S.Ct. at 368, that a district court “cannot be required to disregard significant changes in law or fact if it is ‘satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.’ ” 364 U.S. at 647, 81 S.Ct. at 371, quoting United States v. Swift & Co., 286 U.S. at 114-15, 52 S.Ct. at 462. System Federation involved a change in statutory law, but the Court did say in dictum that “[tjhere are many cases where a mere change in decisional law has been held to justify modification of an outstanding injunction. [Citations].” 364 U.S. at 650 n. 6, 81 S.Ct. at 372 n. 6. In Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), the Court was confronted with the refusal of a district court to modify its earlier injunction. The terms of the injunction were inconsistent with the intervening ruling in Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and were also ambiguous. Because of these two factors, the Court held, it was an abuse of discretion for the district court not to modify its earlier injunction. The principal case in this Circuit is Elgin National Watch Co. v. Barrett, 213 F.2d 776 (5th Cir. 1954). In that case, on the basis of the interpretation of the Fair Trade Act announced in Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951), the district court vacated the injunction it had entered almost three years earlier and dismissed the original complaint upon which the final decree of injunction had been entered. This Court held that because the original judgment had not been appealed, it was improper for the district court to vacate the final judgment. This Court affirmed, however, as to the dissolution of the prospective operation" }, { "docid": "23094512", "title": "", "text": "the plaintiff expand its chain into Massachusetts and the parties come into direct competition, then it may be that the relief granted would not give the plaintiff ade quate protection. But it will be time enough to consider this question when it arises, for the parties are not irrevocably bound by the decree as it stands. If circumstances change the court below is open to the plaintiff to seek modification of the present decree under the principle enunciated in United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, in which Mr. Justice Cardozo, speaking for the court, said that even when power to modify a decree of injunction has not been reserved therein, that power nevertheless exists “by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need”, and then, after citing cases, continued: “The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative * * * a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into 'an instrument of wrong.” See also S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176, 177. The decree of the District Court is affirmed. . In addition the plaintiff alleges that it and its associated companies, ail of which have names containing the words Food Fair, are qualified to do business in 47 states of the United States, . We pass consideration of the possibility of a narrower rule applicable to this aspect of the jurisdictional question in cases like Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248 and McNutt v. General Motors, Acceptance Corp., 298 U.S. 178, 50 S.Ct. 780, 80 L.Ed. 1135, in which an element" }, { "docid": "7609852", "title": "", "text": "be changed in the interest of the defendants if the purposes of the litigation as incorporated in the decree have not been fully achieved, United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562 (1968). An injunction is an ambulatory remedy that marches along according to the nature of the proceeding. It is executory and subject to adaption as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change. See United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). Thus, the nature and effect of the decree granting an injunction must be examined first when considering its modification. A trial court’s power to modify, like the power over all its orders, is inherent. Nonetheless Rule 60(b)(5) of the Federal Rules of Civil Procedure has stated this inherent power as a rule by noting that a court may relieve a party from a judgment where “it is no longer equitable that the judgment should have prospective application.” When modifying a preliminary injunction, a court is charged with the exercise of the same discretion it exercised in granting or denying injunctive relief in the first place. But a court may modify a final or permanent injunction only where conditions have so changed as to make such relief equitable, i.e., a significant change in the law or facts. In United States v. Swift, supra, the Supreme Court indicated that modifying a permanent decree in volves a balance between the policies of res judicata and the right of a court to apply modified measures to changed circumstances, or a balance between rights impervious to change as against those tentative and subject to changing conditions. See System Federation v. Wright, 364 U.S. 642, 647-648, 81 S.Ct. 368, 371-372, 5 L.Ed.2d 349 (1961). The Sierra Club argues that the injunction which the State seeks to modify here is not akin to a preliminary injunction. In claiming that the injunction was “final” it argues that modification" }, { "docid": "18709619", "title": "", "text": "in decisional law is simply not a ground for relief under Rule 60(b)(5). Lubben v. Selective Service System Local Bd. No. 27, supra. A Rule 60(b) motion cannot be used as a substitute for appeal. Rinieri v. News Syndicate Co., 385 F.2d 818, 822 (2d Cir. 1967); Moore’s Federal Practice, supra, ¶ 60.26[4] at 333-34 (2d ed. 1975). See also Class v. Norton, 507 F.2d 1058, 1063 (2d Cir. 1974). Moreover, the instant final judgments have no prospective application with respect to defendants Eaton and Sargent. The language of Rule 60(b)(5) providing for relief from final judgment when “it is no longer equitable that the judgment should have prospective application” embodies the traditional power of a court of equity to alter an injunctive decree to adapt to new or unforeseen conditions. Mr. Justice Cardozo succinctly noted in United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932), that “a court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” But the settlement agreements with Eaton and Sargent call for no continuing judicial supervision over the business activities of the defendants. As then Chief Judge Lum-bard held, “Rule 60(b)(5) . . does not cover the case of a judgment for money damages.” Ryan v. United States Lines Co., 303 F.2d 430, 434 (2d Cir. 1962). In return for a release from any claim arising out of the alleged antitrust violations and without admitting any liability, Eaton and Sargent agreed to pay the plaintiffs a liquidated damage sum. When the court had approved the agreement and the money had been paid, the settlement was consummated, and the actions were dismissed with prejudice. Thus, defendants no longer have any interest in the fund. II. Although courts may possess a “reservoir” of equitable power under Rule 60(b)(6) to alter, modify or vacate their judgments, such powers should be exercised only when “extraordinary circumstances” prevented a party from seeking relief through normal channels of trial or" }, { "docid": "22367318", "title": "", "text": "was “crafted with the course of ordinary litigation in mind. Such litigation proceeds through preliminary stages, generally matures at trial, and produces a judgment, to which after appeal, the binding finality of res judicata and collateral estoppel will attach.” Arizona v. California, 460 U.S. 605, 618-19, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Here, however, we review a structural injunction, which involves the ongoing application of changing law to changing circumstances. Because permanent injunctive relief controls future conduct, we are sensitive to the need for modification when circumstances change. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need. The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative.... [A] court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong. United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932) (citations omitted). A change in the law may constitute a changing circumstance requiring the modification of an injunction. System Federation No. 91 v. Wright, 364 U.S. 642, 647-48, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961). An intervening judicial opinion may require modification of an injunction. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 437-38, 96 S.Ct. 2697, 2705, 49 L.Ed.2d 599 (1976) (when intervening clarification of constitutional law reduced obligations of state officials, district court abused its discretion by refusing to modify injunction accordingly). “When a change in the law authorizes what had previously been forbidden, it is an abuse of discretion for a court to refuse to modify an injunction founded on superseded law.” American Horse Protection Association v. Watt, 694 F.2d 1310, 1316 (D.C.Cir.1982). The Fourth Circuit’s decision in Nelson v. Collins, 659 F.2d 420 (4th Cir.1981), is closely analogous to the" }, { "docid": "16892538", "title": "", "text": "remedy by appeal would have been successfully invoked. And in Collins v. City of Wichita, 254 F. 2d 837, a modification of the judgment would have retroactively disturbed existing rights and financial reliance on the judgment. In Scotten v. Littlefield, 235 U. S. 407, relief was denied in a situation virtually identical to this case. But the point actually decided there was that a bill of review would not lie, and it is universally conceded that Rule 60 (b) is not limited to those situations where the old confusing collateral remedies would have been available. In sum, the District Court need “not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” United States v. Swift & Co., 286 U. S. 106, 114-115. It is revolting that petitioner should be subject to deportation because of a decree which he could not successfully have attacked on appeal and which subsequent events may have rendered erroneous. The principle of finality is not offended by modification which disturbs no accrued rights and concerns only future conduct. Accordingly, I would reverse the judgment of the Court of Appeals and remand this case to the District Court with directions to exercise its discretion under Rule 60 (b)(5)." }, { "docid": "2146882", "title": "", "text": "Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 298, 61 S.Ct. 552, 557, 85 L.Ed. 836, 844 (1941); a continuation would be inequitable, New York State Assoc. For Retarded Children, Inc. v. Carey, 706 F.2d 956, 967-69 (2d Cir.1983), cert, denied, — U.S. -, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983); and each side has legitimate interests to be considered, King-Seeley Thermos Co. v. Aladdin Industries, Inc., 418 F.2d 31 (2d Cir.1969). In United States v. Swift, 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932), the Supreme Court states: A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need, (citations omitted). The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. (citation omitted). The result is all on whether the decree has been entered after litigation or by consent, (citation omitted). In either event, a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong. We reject the argument for the interveners that a decree entered upon consent is to be treated as a contract and not as a judicial act. In Swift, the Court characterized the ease before it as one involving rights fully accrued upon facts nearly impervious to change, and accordingly held that modification was inappropriate absent “a clear showing of grievous wrong evoked by new and unforeseen conditions.” Id. at 119, 52 S.Ct. at 464. Where, however, a consent decree involves the supervision of changing conduct or conditions and is therefore provisional, modification may be more freely granted. Over ten years have passed during this litigation and the parties have not achieved the objectives stated in the agreements. The decree in this action must be regarded as “provisional and tentative,” and subject to “changing conduct or conditions.”" }, { "docid": "22044840", "title": "", "text": "corrected by an appeal of the Lubben injunction. Upon dismissal of the Lubben appeal that decision became final; a change in applicable law does not provide sufficient basis for relief under Rule 60(b) (5). See Title v. United States, 263 F.2d 28 (9th Cir.), cert, denied, 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978 (1959); Collins v. City of Wichita, 254 F.2d 837 (10th Cir. 1958); Berryhill v. United States, 199 F.2d 217 (6th Cir. 1952). III In United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), the Court held that it was the inherent right of a court of equity to modify an injunction in adaptation to changed circumstances which rendered the injunction an instrument of wrong. The clause of Rule 60(b) (5) allowing for relief from the inequitable prospective application of a judgment was designed primarily to incorporate that inherent power, and the clause should be used in light of the Swift decision. “There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. . . . Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.” Id. at 119, 52 S.Ct. at 464. (Emphasis added.) The government has not met its burden of demonstrating that inequity results from continued enforcement of the injunction against appellant’s Local Board. Indeed, the conditions of the injunction could have been easily complied with in the year since the dismissal of the Lubben appeal, and compliance at this time would not prejudice the Selective Service System. The Ehlert and Lane decisions were not such subsequent events as to render continued application of the injunction inequitable. IV Rule 60(b) (6)," }, { "docid": "18324355", "title": "", "text": "of the consent decree, validly modified as hereinafter explained. We emphasize that action of the court must rest upon its decrees, not upon the Monitors’ recommendations as such, and is to be embodied in an order of the court, not conveyed by reference to a separate instrument. 4. Validity of the decree of February 9, 1959. As to this decree the principal question is whether it is valid at all. Though founded on the consent decree, it was not itself consented to. In appropriate circumstances a court may modify a consent decree without the consent of the parties. This is not contested here. The applicable principles are set forth by the Supreme Court in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999, where it is said, “The distinction is betwen restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative * -* The result is all one whether the decree has been entered after litigation or by consent * * *. In either event, a court does not abdicate its powers to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong * * *. The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be.” 286 U.S. at pages 114-115, 52 S.Ct. at page 462. See, also, Coca-Cola Co. v. Standard Bottling Co., 10 Cir., 1943, 138 F.2d 788. Defendants read these principles to prevent modification of this consent decree. In this we think they are mistaken. As they say, the plaintiffs attacked the legality of the 1957 elections, and sought a declaration of their invalidity and the calling of new elections under judicial supervision. But it does not follow, as defendants contend," }, { "docid": "22700332", "title": "", "text": "S. 257, 263,. n. 7 (1978); Railway Employees v. Wright, 364 U. S. 642, 648-650 (1961). As we recognized in our unanimous opinion in Browder, “an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” 434 U. S., at 263, n. 7. For in this context, “[w]e are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting.” United States v. Swift & Co., 286 U. S. 106, 119 (1932). Cf. Illinois v. Illinois Central R. Co., 184 U. S. 77, 91-92 (1902) (cautioning against entertaining successive appeals of legal questions open to dispute in an initial appeal, and observing that tolerance of such appeals would allow parties, inter alia, to ‘“speculate on chances from changes in [a court’s] members’ ”) (quoting Roberts v. Cooper, 20 How. 467, 481 (1858)). In short, relitigation of the legal or factual claims underlying the original judgment is not permitted in a Rule 60(b) motion or an appeal therefrom. See 11 Wright, Miller, & Kane § 2863, p. 340 (Rule 60(b) “does not allow relitigation of issues that have been resolved by the judgment.”); see also Fortin v. Commissioner, Mass. Dept. of Public Welfare, 692 F. 2d 790, 799 (CA1 1982) (warning against transformation of Rule 60(b) “modification procedure into an impermissible avenue of collateral attack”). Thus, under settled practice, the sole question legitimately presented on appeal of the District Court’s decision denying petitioners’ Rule 60(b)(5) motion to modify the Aguilar injunction would be: Did the District Court abuse its discretion when it concluded that neither the facts nor the law had so changed as to warrant alteration of the injunction? The majority acknowledges that there has been no significant change in factual conditions. See ante, at 216-217. The majority also recognizes that Aguilar had not been overruled, but remained the governing" }, { "docid": "18458991", "title": "", "text": "or modified. See, e. g., Class v. Norton, 507 F.2d 1058, 1061-62 (2d Cir. 1974). Moreover, relief from a judgment on the latter grounds is restricted to situations where the present judgment is based on the prior judgment in the sense of res judicata or collateral estoppel. Rule 60(b) (5) does not apply where a case relied on as precedent by the court in rendering the present judgment has since been reversed. Title v. United States, 263 F.2d 28, 31 (9th Cir.), cert. denied. 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978 (1959) ; Berryhill v. United States, 199 F.2d 217, 219 (6th Cir. 1952) ; Loucke v. United States, 21 F.R.D. 305 (S.D.N.Y.1957). See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2863 (1973). . Fed.R.Civ.P. 56. . United States v. Southern Ute Indians, 402 U.S. 159, 91 S.Ct. 1336, 28 L.Ed.2d 695 (1971) ; Siegel v. National Periodical Publications, 508 F.2d 909, 913 (2d Cir. 1974) ; Siebring v. Hansen, 346 F.2d 474, 477 (8th Cir.), cert. denied, 382 U.S. 943, 86 S.Ct. 400, 15 L.Ed.2d 352 (1965) ; Kiwi Coders Corp. v. Arco Tool & Die Works, 250 F.2d 562, 568 (7th Cir. 1957) ; Folgueras v. Hassle, 331 F.Supp. 615, 616 (W.D.Mich.1971) ; Stuyvesant Ins. Co. v. Dean Const. Co., 254 F.Supp. 102, 110 (S.D.N.Y.1966), aff’d sub nom. Stuyvesant Co. v. Kelly, 382 F.2d 911 (2d Cir. 1967) ; Moore’s Federal Practice ¶ 0.409 [5]. See United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932) : “We reject the argument that a decree entered upon consent is to be treated as a contract and not as a judicial act.” . Adkins v. Lear, Inc., 67 Cal.2d 882, 891, 64 Cal.Rptr. 545, 549, 435 P.2d 321, 325-26 (1967). . 339 U.S. 827, 836, 70 S.Ct. 894, 94 L.Ed. 1312 (1950). . 395 U.S. at 656, 89 S.Ct. at 1904, citing Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) ; Compco Corp. v. Day-Brite Lighting, Inc.," } ]

[ { "docid": "20887369", "title": "", "text": "trial. The government argues that the eighty-day period was excluded because the court, in the exchange of November 26, 1990, quoted above, granted the defense counsel’s request for a continuance of the trial, and that this grant of a continuance was proper under the “ends of justice” exclusion in 18 U.S.C. § 3161(h)(8). Title 18 U.S.C. § 3161(h)(8)(A) provides for exclusion of: [a]ny period of delay resulting from a continuance granted by any judge ... at the request of the defendant ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. Crawford concedes that the district court had a basis to grant an “ends of justice” continuance because defense counsel requested two weeks to file pretrial motions and informed the court of a possible conflict that counsel would have on December 17, 1990. But, in light of the fact that the court disposed of the only pretrial motion on December 20, Crawford argues the Speedy Trial Act was violated because 1) the court failed to inquire into the reasonableness of the delay, 2) the court failed to explain properly its reasoning for the delay, 3) the court failed to specify the length of the delay when the continuance was granted, and 4) there was no basis for the court to exclude the entire period from December 21, 1990 to March 18, 1991. Under the Speedy Trial Act, a court may grant an “ends of justice” continuance if “the failure to grant such a continuance ... would unreasonably deny the defendant ... continuity of counsel____” 18 U.S.C. § 3161(h)(8)(B)(iv); see also United States v. Cianciola, 920 F.2d 1295, 1299 (6th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2830, 115 L.Ed.2d 1000 (1991). More is required than the mere existence of a basis for the continuance, however. Section 3161(h)(8)(A) of the Act provides that the time during an “ends of justice” continuance is not excludable “unless the court sets forth, in the record of" } ]

[ { "docid": "16706233", "title": "", "text": "defendant.” As detailed above, there are two statutory prerequisites for excluding a continuance from the Act’s 70-day time limit. First, the court must find that the ends of justice served by granting the continuance “outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7). Second, time “shall” not be excludable unless the court “sets forth, in the record ... its reasons for finding that the ends of justice” outweigh the interest of the public and the defendant in a speedy trial. Id. In light of these statutory requirements, Wasson argues that the delays may not be excluded under the Act because the district court failed to make explicit contemporaneous findings on the record justifying the continuances. The government responds that, taken together with the sequence of events culminating in the continuances, the district court’s findings accompanying each continuance suffice under the Act. The requirement of express findings is the “procedural strictness” that counteracts the “substantive openendedness” of the ends-of-justice provision. Zedner, 547 U.S. at 509, 126 S.Ct. 1976. Wasson’s argument boils down to his insistence that to satisfy the Act, the district court’s findings must be both explicit and contemporaneous with the granting of an excludable continuance. But although the Act specifies the need to make findings “in the record,” it does not spell out precisely how the court must effectuate this. Wasson relies heavily on Zedner to support his claim that neither implicit nor after-the-fact findings will support an ends-of-justice continuance. But Wasson overreads Zedner. In Zedner, the Supreme Court concluded that the Act does not permit a defendant to prospectively waive its application. At the district court’s urging, the defendant in Zedner had signed a preprinted waiver form purporting to waive his speedy trial rights “for all time.” Zedner, 547 U.S. at 493-94, 126 S.Ct. 1976. In rejecting the efficacy of the defendant’s waiver, the Court clarified the Act’s requirement for express findings to support a § 3161(h)(7) continuance. Specifically, the government in Zedner had argued that although the district court had never entered an express finding on the record," }, { "docid": "16706229", "title": "", "text": "see also Zedner v. United States, 547 U.S. 489, 497-98, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). The one exclusion relevant to Wasson’s appeal is § 3161(h)(7)(A), which provides that the following periods of delay should be excluded: Any period of delay resulting from a continuance ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). Section 3161(h)(7)(B) also sets forth four nonexhaustive factors which the court “shall consider” in determining whether to grant an ends-of-justice continuance. In particular, subsection (7)(B)(ii) directs the judge to consider “[wjhether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.” As detailed above, the district court relied on the ends of justice and the complex nature of the case when it repeatedly continued Wasson’s trial date. The parties agree that the speedy trial clock began running when Wolgamot was arraigned on May 11, 2007. It is also undisputed that between that date and the commencement of trial on March 2, 2009, 224 days were automatically excluded for the handling of the defendants’ fourteen pretrial motions. See 18 U.S.C. § 3161(h)(1)(D) (excluding delay “resulting from any pretrial motion” from its filing through its disposition); Hills, 618 F.3d at 626-27 (upholding automatic excludability of time between filing and resolution of pretrial" }, { "docid": "23162301", "title": "", "text": "However, the Act provides that several periods of time may be excluded from this 70-day period. 18 U.S.C. § 3161(h). Among the permitted exclusions is delay “resulting from a continuance granted ... on the basis of ... findings that the ends of justice served by [the continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). An “ends of justice” continuance must be granted before “the period sought to be excluded begins to run.” This requires the district judge to “consider the matter at the outset and determine whether the ‘ends of justice’ require that the trial be postponed.” United States v. Janik, 723 F.2d 537, 545 (7th Cir.1983) (quoting United States v. Brooks, 697 F.2d 517, 522 (3d Cir.1982)). The findings required to support such a continuance may be made based upon a variety of permissible factors, 18 U.S.C. § 3161(h)(8)(B), but they may not be based upon “general congestion of the court’s calendar.” 18 U.S.C. § 3161(h)(8)(C). In evaluating the propriety of this continuance we must determine whether it was based on the impermissible consideration of general docket congestion. The district court’s findings supporting the continuance clearly set forth that the large number of defendants and the number of counts involved in the Zambrana case made it unlikely that the trials of all defendants could occur within the prescribed time limits. The court also observed that severance would likely be necessary in some cases and that such severance would more adequately serve the ends of justice, as well as result in some delay. The district judge obviously could have delayed a single multi-defendant trial based upon its complexity. See 18 U.S.C. § 3161(h)(8)(B); United States v. Thomas, 774 F.2d 807, 810 (7th Cir.1985) (Ends of justice continuance appropriate based on complexity of six-defendant case involving extensive documentary evidence). It necessarily follows that delays resulting from the severance essential to preserve individual rights in a specific, complex multiple-defendant proceeding, especially when requested by a defendant, are not to be considered “gener al” docket congestion. Cf. United States v. Brainer, 691" }, { "docid": "11456797", "title": "", "text": "complied with the Speedy Trial Act and that the district court made adequate findings supporting the various ends-of-justice continuances, I respectfully dissent. I concur with the majority’s disposition of the Sixth Amendment speedy trial claim. I. “[C]riminal cases vary widely and ... there are valid reasons for greater delay in particular cases”; therefore, the Speedy Trial Act offers “flexibility” by including “a long and detailed list of periods of delay that are excluded in computing the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Examples of relevant exclusions include a “reasonable period of delay” attributable to a proceedings of a co-defendant, 18 U.S.C. § 3161(h)(6), and delay attributable to an ends-of-justice continuance. 18 U.S.C. § 3161(h)(7). “Much of the Act’s flexibility is furnished by § 3161(h)[ (7) ], which governs ends-of-justice continuances.” Zedner, 547 U.S. at 498, 126 S.Ct. 1976. This provision excludes “[a]ny period of delay resulting from a continuance granted by any judge ... on the basis of ... findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” § 3161(h)(7). It “gives the district court discretion — within limits ... — to accommodate limited delays for case-specific needs.” Zedner, 547 U.S. at 499, 126 S.Ct. 1976. As we have repeatedly emphasized, in granting an ends-of-justice continuance, the district court must set forth, “in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” § 3161(h)(7)(A); United States v. Williams, 511 F.3d 1044, 1056 (10th Cir. 2007) (“The Tenth Circuit [] recognizes the importance of enunciating the ends of justice findings.”) (citation omitted). “[I]t must be clear from the record that the trial court struck the proper balance when it granted the continuance.” Williams, 511 F.3d at 1056 (citing United States v. Spring, 80 F.3d 1450, 1456 (10th Cir.1996)). Although" }, { "docid": "23162300", "title": "", "text": "defendant, Felipe Vega to a term of 78 months, which is the low guideline, or six and one half years on Count 1; and sentence him to a term of four years on Count 2 [sic] to be concurrent.” Vega challenges his conviction and sentence on five separate grounds: (1) that the court refused to dismiss his case pursuant to the Speedy Trial Act; (2) that the procedure for identification of Felipe Vega’s voice was impermissibly suggestive, and the identification itself was unreliable; (3) that tape-recorded conversations were admitted in which speakers were not identified; (4) that the evidence was insufficient to prove Vega’s involvement in the conspiracy; and (5) that the court’s use of the federal sentencing guidelines prior to their effective date violated the constitutional protection against ex post facto laws. III. SPEEDY TRIAL ACT The Speedy Trial Act generally requires that trials in criminal cases commence within 70 days of the filing date of the information or indictment, or from the date of initial appearance, whichever last occurs. 18 U.S.C. § 3161(c)(1). However, the Act provides that several periods of time may be excluded from this 70-day period. 18 U.S.C. § 3161(h). Among the permitted exclusions is delay “resulting from a continuance granted ... on the basis of ... findings that the ends of justice served by [the continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). An “ends of justice” continuance must be granted before “the period sought to be excluded begins to run.” This requires the district judge to “consider the matter at the outset and determine whether the ‘ends of justice’ require that the trial be postponed.” United States v. Janik, 723 F.2d 537, 545 (7th Cir.1983) (quoting United States v. Brooks, 697 F.2d 517, 522 (3d Cir.1982)). The findings required to support such a continuance may be made based upon a variety of permissible factors, 18 U.S.C. § 3161(h)(8)(B), but they may not be based upon “general congestion of the court’s calendar.” 18 U.S.C. § 3161(h)(8)(C). In evaluating the propriety of this continuance" }, { "docid": "11456771", "title": "", "text": "1433. “In setting forth its findings, however, the district court need not articulate facts which are obvious and set forth in the motion for the continuance itself.” United States v. Occhipinti, 998 F.2d 791, 797 (10th Cir.1993) (quotation omitted). While the preferred practice is for the district court to make its findings on the record at the time the continuance is granted, findings made contemporaneously with the granting of the continuance may be entered on the record after the fact if done before the court rules on a defendant’s motion to dismiss. Zedner v. United States, 547 U.S. 489, 506-07 & n. 7, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Toombs claims the district court made insufficient findings as to the seven continuances expressly granted pursuant to the ends-of-justice provision. Fifty days in the approximately twenty-two month period between Toombs’s arraignment and trial date were not excluded by the district court for Speedy Trial Act purposes. Because pursuant to each of the seven challenged continuances the district court excluded over twenty days, if any one of the continuances was granted in error, a violation of the seventy-day requirement of the Speedy Trial Act would exist. 18 U.S.C. § 3161(c)(1). The record is particularly sparse with regard to the district court’s findings underlying two of the ends-of-justice continuances. The May 1, 2007, order states in relevant part: The Court, having been well and duly advised in the premises, finds that the motion should be granted in order for the defense to adequately prepare and for the reasons stated in the motion. The Court further finds that the period of delay resulting from the continuance granted pursuant to this order shall be excludable time as provided for in 18 U.S.C. [§ 3161(h)(7) ] in that the ends of justice served by the granting of such continuance outweigh the best interest of the public and the defendant in a speedy trial. The motion to which this order refers, filed on April 30, 2007, states that a continuance is requested on the following grounds: 1. This case is scheduled for Jury Trial commencing May" }, { "docid": "1377432", "title": "", "text": "Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982); United States v. Corley, 548 F.2d 1043, 1044 (D.C.Cir.1976); S.Rep. No. 1021, 93d Cong., 2d Sess. 40, reprinted in Legislative History at 162. The third factor cited by the court, viz., the burden of the court’s criminal docket, however, is expressly precluded from consideration as justifying an “ends of justice” continuance by the Speedy Trial Act. 18 U.S.C. § 3161(h)(8)(C). See United States v. Nance, supra, 666 F.2d at 355-56. Our review indicates that even though the court improperly considered the burden of its docket in stating its findings in support of a grant of an “ends of justice” continuance, the two permissible factors considered would warrant exclusion of sufficient time to bring the January 17, 1983 commencement of Richmond's trial within the seventy-day period unless the continuance was not based on the district court’s findings as set forth in its January 19, 1983 order. Because the district court did not set forth its findings until after Richmond had moved to dismiss the indictment, the question remains as to whether the district court based the continuance on its findings. The problem that confronts us has been described recently by the Seventh Circuit: If the judge gives no indication that a continuance was granted upon a balancing of the factors specified by the Speedy Trial Act until asked to dismiss the indictment for violation of the Act, the danger is great that every continuance will be converted retroactively into a continuance creating excludable time, which is clearly not the intent of the Act. United States v. Janik, supra, 723 F.2d at 544-45. Accord United States v. Brooks, supra, 697 F.2d at 521-22 (trial court may not grant an “ends of justice” continuance nunc pro tunc to provide after the fact justification for exclusion of delay). Based on our review of the record, we believe that the district court cannot fairly be said to have granted the continuance of the trial date from December 13, 1982 based on the findings that it set forth in the January 19, 1983" }, { "docid": "16706232", "title": "", "text": "unelaborated conclusion that “the ends of justice have been met” pursuant to 18 U.S.C. § 3161(h)(7)(A). The August 22, 2008 continuance was granted in response to the government’s oral motion, made the day after Wolgamot pleaded guilty. In support of its motion, the government cited the complexity of the case and the desire to ensure continuity of government counsel in light of the impending six-month detail in Washington, D.C. Wasson’s counsel added that Wolgamot’s plea “profoundly affects our case” and that going to trial in several weeks would be “very difficult.” After ensuring that Was-son himself had no objection to the continuance and remarking that a long trial in January or February would be problematic on account of the weather, the court granted the continuance and set trial for March 2, 2009. The court found the period of delay to be excludable based on its previous finding that the case was complex and stated that “the ends of justice are served by taking this action which outweighs the best interests of the public and the defendant.” As detailed above, there are two statutory prerequisites for excluding a continuance from the Act’s 70-day time limit. First, the court must find that the ends of justice served by granting the continuance “outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7). Second, time “shall” not be excludable unless the court “sets forth, in the record ... its reasons for finding that the ends of justice” outweigh the interest of the public and the defendant in a speedy trial. Id. In light of these statutory requirements, Wasson argues that the delays may not be excluded under the Act because the district court failed to make explicit contemporaneous findings on the record justifying the continuances. The government responds that, taken together with the sequence of events culminating in the continuances, the district court’s findings accompanying each continuance suffice under the Act. The requirement of express findings is the “procedural strictness” that counteracts the “substantive openendedness” of the ends-of-justice provision. Zedner, 547 U.S. at 509, 126 S.Ct." }, { "docid": "9065185", "title": "", "text": "the many sound grounds for granting ends-of-justice continuances could not be rigidly structured, saw a danger that such continuances could get out of hand and subvert the Act's detailed scheme. The strategy of [ § 3161(h)(7) ], then, is to counteract substantive openendedness with procedural strictness. The provision demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making those findings. Id. at 508-09, 126 S.Ct. 1976. \"[T]he Sixth Circuit has placed great emphasis on the need for a district court to comply with this statutory requirement.\" Greenup v. United States , 401 F.3d 758, 764 n.3 (6th Cir. 2005) ; see, e.g. , United States v. Jordan , 544 F.3d 656, 665 (6th Cir. 2008) (\"We believe that in order to assure that the district court adequately considers whether the ends-of-justice outweigh the public's and defendant's interest in a speedy trial, the district court should also generally hold an adversarial hearing in which both sides participate.\"). \"This Court will not countenance maneuvers aimed at merely paying lip service to the Speedy Trial Act's requirements.\" Brown , 819 F.3d at 815. In this case, the magistrate judge issued an order stating only that \"[t]his matter coming before the court on the stipulation of the parties, it is hereby ... ORDERED that the period from May 23, 2013, to the new date of the preliminary hearing, June 7, 2013 should be excluded in calculating the time within which the defendant shall be indicted under the Speedy Trial Act. 18 U.S.C. § 3161.\" (RE 12, Page ID # 32.) The order did not mention the ends of justice or the interest of the defendant and the public in a speedy trial, let alone any reasons for finding that one outweighed the other. Accordingly, the magistrate judge plainly did not comply with § 3161(h)(7), and that should be the end of the matter. See Zedner , 547 U.S. at 507, 126 S.Ct. 1976. However, the majority attempts to circumvent this conclusion by relying on the joint stipulation, which the magistrate judge attached to its order. According to" }, { "docid": "9065183", "title": "", "text": "magistrate judge and the district court made the statutorily mandated findings necessary to exclude Defendant's time spent in plea negotiations under 18 U.S.C. § 3161(h)(7). This holding is also unpersuasive. By its terms, 18 U.S.C. § 3161(h)(7)(A) permits a court to exclude a period of time by granting an ends-of-justice continuance only if \"the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.\" The provision explains that \"no such period of delay resulting from a continuance granted by the court ... shall be excludable under this subsection unless the court sets forth in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.\" Id. Section 3161(h)(7)(B) then lists \"[t]he factors, among others, which a judge shall consider\" in determining whether to grant an ends-of-justice continuance. Thus, § 3161(h)(7)\"is explicit.\" Zedner v. United States , 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). \"[W]ithout the on-the-record-findings, there can be no exclusion.\" Id. \"[I]f a judge fails to make the requisite findings regarding the need for the ends-of-justice continuance, the delay resulting from the continuance must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed.\" Id. at 508, 126 S.Ct. 1976. In this way, § 3161(h)(7)\"gives the district court discretion-within limits and subject to specific procedures-to accommodate limited delays for case-specific needs.\" Id. at 499, 126 S.Ct. 1976. As the Supreme Court has explained: The exclusion of delay resulting from an ends-of-justice continuance is the most open-ended type of exclusion recognized under the [Speedy Trial] Act and, in allowing district courts to grant such continuances, Congress clearly meant to give district judges a measure of flexibility in accommodating unusual, complex, and difficult cases. But it is equally clear that Congress, knowing that" }, { "docid": "21707587", "title": "", "text": "in SEC v. Johnson, Civil Action No. 05-36(GK), any trial set after February 20, 2008 would have conflicted with the Johnson trial. Thus, after Feb ruary 20, the six-week securities fraud trial in Johnson, and not the failure of the Marshals Service to transport the Government’s witnesses, became the cause of the delay in bringing this case to trial. See 18 U.S.C. § 3161(h)(8)(C) (“no continuance under [Section 3161(h)(8)(A) ] shall be granted because of general congestion of the court’s calendar”). Third, the Government presents new arguments purportedly explaining why two specific periods of time are, in fact, excludable under the Act: February 21, 2006 to March 2, 2006 and September 11, 2007 to September 18, 2007. The Government has provided no explanation for why these arguments were not raised previously, despite several opportunities to do so during the briefing of the Motion to Dismiss. It is now far too late in the proceedings to consider these arguments. Furthermore, the Government asks the Court to make factual findings concerning these continuances that the Court did not, in fact, make at the time and that it cannot, in good conscience, make at this late date. See Zedner, 547 U.S. at 506-507, 126 S.Ct. 1976 (ends of justice continuances must be made on the basis of factual findings “made, if only in the judge’s mind, before granting the continuance ”) (emphasis added). And even if all of this time (seventeen days according to the Government) was excluded, it would not be sufficient to cure the violation of the seventy-day speedy trial clock, as the Court previously found that 112 non-excludable days had elapsed. See Ferguson, 565 F.Supp.2d at 45-46. Finally, the Government correctly points out a minor error in the Court’s calculation of the excludable time for the period between February 6, 2006 and February 8, 2006, which the Court calculated as constituting two excludable days under the Act. Id. at 39-40. However, time excluded due to the filing of a pretrial motion, see 18 U.S.C. § 3161(h)(1)(F), includes the day on which the motion was filed. United States v. Fonseca, 435" }, { "docid": "23052994", "title": "", "text": "to respond to characteristics of individual cases similar to those granted automatic exclusion, the Act permits the trial court to exclude continuances granted when the “ends of justice” outweigh the best interest of the public and defendant in a speedy trial. 18 U.S.C. § 3161(h)(8)(A) (1976). These findings must be set forth in the record. Realizing that broad discretion would undermine the mandatory time limits of the Act, Congress intended that this provision be “rarely used” and enumerated four factors to be considered by the judge in granting an ends of justice continuance, including “[wjhether the failure to grant such a continuance ... would unreasonably deny the defendant or the Government continuity of counsel.” 18 U.S.C. § 3161(h)(8)(B)(iv) (Supp. Ill 1979). The Congress, at the instance of the House of Representatives, further strengthened the Act to prohibit granting an ends of justice continuance “because of general congestion of the court’s calendar,” 18 U.S.C. § 3161(h)(8)(C) (1976) The prohibition recognizes that the entire structure of the Speedy Trial Act is intended to eliminate delays caused by crowded dockets. Continuances should not be granted lightly or as a matter of course. The interests of justice, exception should not be invoked without findings to support it. As is generally the case, on appellate review of a trial court ruling that the ends of justice exception is grounds for a continuance, we do not disturb factual findings underlying the district court’s determination unless they are clearly erroneous, but questions of the correct legal standard are for our de novo review. United States v. Fielding, 645 F.2d 719, 721-22 (9th Cir. 1981). The case presents the issue whether delays occasioned by defense counsels’ scheduling conflicts and previously calendared cases are excludable under the Speedy Trial Act as an “ends of justice” continuance, or rather must be deemed unexcused delays caused by “general court congestion.” In part because the strict mandatory dismissal provisions of the Act have come into effect only recently, the issue has not yet been addressed in this circuit. After computing certain limited delays directly caused by the need to preserve continuity of" }, { "docid": "4277455", "title": "", "text": "the STA is “a long and detailed list of periods of delay that are excluded in computing the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Experience suggests that the provision courts and counsel most often employ to toll the running of the STA’s time clock is the “ends-of-justiee” continuance provided for in § 3161(h)(7). Subsection (h)(7)(A) permits a district court, sua sponte or upon motion, to continue a trial setting and exclude the delay, provided the court, after considering at a minimum the factors set forth in subsections (h)(7)(B)®, (ii), and (iv), places on the record “either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). “Without on-the-record findings there can be no exclusion under § 3161(h)( [7]).” Zedner, 547 U.S. at 507, 126 S.Ct. 1976. In United States v. Doran, 882 F.2d 1511, 1515 (10th Cir.1989), we explained that subsection (h)(7)’s “exception to the otherwise precise requirements of the [STA] was meant to be a ‘rarely used’ tool for those cases demanding more flexible treatment.” Since at least United States v. Gonzales, 137 F.3d 1431, 1434-35 (10th Cir.1998), we have insisted that where a district court grants an “ends-of-justice” continuance pursuant to § 3161(h)(7), the court articulate in some detail its reasons for doing so, lest it engender misuse of the exception. To such end, we have reasoned that “[a] record consisting of only short, conclusory statements lacking in detail is insufficient.... Simply identifying an event, and adding a conclusory statement that the event requires more time for counsel to prepare, is not enough.” United States v. Toombs, 574 F.3d 1262, 1271-72 (10th Cir.2009). Because subsection (h)(7)(A) dictates that the district court grant an “ends-of-justice” continuance only “on the basis of its findings,” the appropriate time for the court to place its findings on the record is just prior to or contemporaneously with the grant of" }, { "docid": "21246737", "title": "", "text": "September 27, continuing the trial date from September 28 to November 9, 2004 for the following reasons: [Considering all of the relevant circumstances, the Court concludes that the motion should be granted in the interest of justice. The Court finds that, under the circumstances presented, the ends of justice outweigh the interest of the public and of the Defendant in a speedy trial and failing to grant a continuance would result in a miscarriage of justice. 18 U.S.C. §§ 3161(h)(8)(A) & (h)(8)(B). A superseding indictment with additional charges was later filed, and on October 25 another order was entered continuing Lucas’s trial to January 4, 2005 on the ground that a “failure to grant additional time might result in a miscarriage of justice.” On December 17 Lucas filed a pro se motion to dismiss all the charges under the Speedy Trial Act. The motion was denied on December 20, and trial began as planned on January 4. Lucas argues that Zedner v. United States, — U.S. -, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), requires a district court to detail its reasons for granting an ends of justice continuance, that the court failed to do so in its September continuance order, and that that violation is not susceptible to harmless error analysis. In the context of Speedy Trial Act rulings, we review a district court’s legal conclusions de novo, its factual findings for clear error, and its ultimate determination for an abuse of discretion. See United States v. Duranseau, 26 F.3d 804, 808 (8th Cir.1994). The district court made explicit findings to support its ends of justice continuance on September 27, finding that “failure to grant [a continuance would] result in a miscarriage of justice.” That factor is one of the permissible reasons for a continuance, 18 U.S.C. § 3161(h)(8)(B)(i), and the court also balanced the ends of justice and the interests of the parties and public. While there could have been more detailed findings, its order was sufficient to show compliance with the Act, particularly in the context of the government’s stated reasons for requesting the continuance. This record" }, { "docid": "7468607", "title": "", "text": "from the STA’s seventy-day mandate with the agreement of the parties. R. 1051 at 54-57; see R. 1057 at 6. The government presented the court with a transcript of the December 7, 2006 hearing at which this had occurred. R. 1051 at 58-59. After reading a portion of that transcript into the record, the court denied Vallone’s motion. R. 1051 at 64. Vallone, now joined by the other defendants, contends that the court erred in denying his motion. As the defendants acknowledge, “certain specified periods of delay are not counted” toward the STA’s seventy-day limit. Defendants’ Joint Br. 23 (quoting Zedner, 547 U.S. at 492, 126 S.Ct. at 1981); United States v. Wasson, supra, 679 F.3d at 944. One such exception, and the one most on point here, is a continuance of the trial date granted based on the court’s finding that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” § 3161(h)(7)(A) (formerly § 3161(h)(8)(A) as noted in O’Connor, 656 F.3d at 636 n. 2). The statute identifies a number of factors that the court must consider in deciding whether such a continuance is warranted. § 3161(h)(7)(B); see Wasson, 679 F.3d at 944. The district judge has broad discretion in weighing the pertinent factors and in determining whether a continuance is warranted. United States v. Rojas-Contreras, 474 U.S. 231, 236, 106 S.Ct. 555, 558, 88 L.Ed.2d 537 (1985); see also United States v. Broadnax, 536 F.3d 695, 698 (7th Cir.2008); United States v. Taylor, 196 F.3d 854, 860 (7th Cir.1999) (citing United States v. Blandina, 895 F.2d 293, 296 (7th Cir.1989)). Counterbalancing that open-ended discretion, however, is “procedural strictness”: The judge must set forth in the record, either orally or in writing, his reasons for concluding that a continuance is warranted by the ends of justice. § 3161(h)(7); Zedner, 547 U.S. at 509, 126 S.Ct. at 1990; see O’Connor, 656 F.3d at 639-40; United States v. Adams, 625 F.3d 371, 378-79 (7th Cir.2010). The defendants’ lead and principal argument on appeal, as it was below," }, { "docid": "13996676", "title": "", "text": "time period may be tolled for certain -reasons enumerated in the Act, which include when the district court grants an ends-of-justice continuance. That is, the court may grant a continuance of the trial date when the “ends of justice” support doing so. The Act therefore excludes, in relevant part, [a]ny period of delay resulting from a continuance granted by any judge ... if the judge granted such' continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests óf the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). . The Act also explains that in granting an ends-of-justice continuance, the court must -consider certain factors, including , (1) whether the, failure to grant the continuance would “result ■ in a miscarriage of justice,” 18 U.S.C. § 3161(h)(7)(B)©; (2) whether due to the nature of -the case (or other factors, including the number of de fendants) the case is too complex to reasonably expect adequate preparation within the time limits, 18 U.S.C.' § 3161(h)(7) (B) (ii); or (3) whether a refusal to continue the case would deny the defendant “reasonable time to obtain counsel” or would unreasonably deny either party “the reasonable time, necessary for effective preparation,” 18 U.S.C. § 3161(h)(7)(B)(iv). The court may not, however, grant a continuance “because of general congestion of the court’s .calendar.” 18 U.S.C. § 3161(h)(7)(C). The Supreme Court has interpreted these provisions to mean that “the Act requires express findings,” which must be made on the record. See Zedner v. United States, 547 U.S. 489, 506-07, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Likewise, we have previously instructed, “[w]hen considering such" }, { "docid": "7468608", "title": "", "text": "F.3d at 636 n. 2). The statute identifies a number of factors that the court must consider in deciding whether such a continuance is warranted. § 3161(h)(7)(B); see Wasson, 679 F.3d at 944. The district judge has broad discretion in weighing the pertinent factors and in determining whether a continuance is warranted. United States v. Rojas-Contreras, 474 U.S. 231, 236, 106 S.Ct. 555, 558, 88 L.Ed.2d 537 (1985); see also United States v. Broadnax, 536 F.3d 695, 698 (7th Cir.2008); United States v. Taylor, 196 F.3d 854, 860 (7th Cir.1999) (citing United States v. Blandina, 895 F.2d 293, 296 (7th Cir.1989)). Counterbalancing that open-ended discretion, however, is “procedural strictness”: The judge must set forth in the record, either orally or in writing, his reasons for concluding that a continuance is warranted by the ends of justice. § 3161(h)(7); Zedner, 547 U.S. at 509, 126 S.Ct. at 1990; see O’Connor, 656 F.3d at 639-40; United States v. Adams, 625 F.3d 371, 378-79 (7th Cir.2010). The defendants’ lead and principal argument on appeal, as it was below, is that the district court did not order the exclusion of time during the time period commencing on February 7, 2007, and ending on May 3, 2007. As the speedy trial clock consequently was running during that period, the defendants reason, the district court was obliged to start the trial no later than April 18, 2007 (seventy days after February 7). The fact that it did not shows that they were deprived of their right to a speedy trial and compelled the district court to grant Vallone’s request that the indictment be dismissed. § 3162(a)(2). We conclude that the defendants have waived this argument. The argument, as we have said, assumes that there was no order at all excluding time between February 7, 2007, and May 3, 2007, such that the speedy trial clock expired in April. This argument overlooks the fact that the court on December 7, 2006, had already continued the trial date from February 7, 2007, on motion of defendants, to October 23, 2007, and had orally excluded time, by agreement. The" }, { "docid": "9065184", "title": "", "text": "to grant an ends-of-justice continuance. Thus, § 3161(h)(7)\"is explicit.\" Zedner v. United States , 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). \"[W]ithout the on-the-record-findings, there can be no exclusion.\" Id. \"[I]f a judge fails to make the requisite findings regarding the need for the ends-of-justice continuance, the delay resulting from the continuance must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed.\" Id. at 508, 126 S.Ct. 1976. In this way, § 3161(h)(7)\"gives the district court discretion-within limits and subject to specific procedures-to accommodate limited delays for case-specific needs.\" Id. at 499, 126 S.Ct. 1976. As the Supreme Court has explained: The exclusion of delay resulting from an ends-of-justice continuance is the most open-ended type of exclusion recognized under the [Speedy Trial] Act and, in allowing district courts to grant such continuances, Congress clearly meant to give district judges a measure of flexibility in accommodating unusual, complex, and difficult cases. But it is equally clear that Congress, knowing that the many sound grounds for granting ends-of-justice continuances could not be rigidly structured, saw a danger that such continuances could get out of hand and subvert the Act's detailed scheme. The strategy of [ § 3161(h)(7) ], then, is to counteract substantive openendedness with procedural strictness. The provision demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making those findings. Id. at 508-09, 126 S.Ct. 1976. \"[T]he Sixth Circuit has placed great emphasis on the need for a district court to comply with this statutory requirement.\" Greenup v. United States , 401 F.3d 758, 764 n.3 (6th Cir. 2005) ; see, e.g. , United States v. Jordan , 544 F.3d 656, 665 (6th Cir. 2008) (\"We believe that in order to assure that the district court adequately considers whether the ends-of-justice outweigh the public's and defendant's interest in a speedy trial, the district court should also generally hold an adversarial hearing in which both sides participate.\"). \"This Court will not countenance maneuvers aimed at merely paying lip service" }, { "docid": "13996677", "title": "", "text": "also explains that in granting an ends-of-justice continuance, the court must -consider certain factors, including , (1) whether the, failure to grant the continuance would “result ■ in a miscarriage of justice,” 18 U.S.C. § 3161(h)(7)(B)©; (2) whether due to the nature of -the case (or other factors, including the number of de fendants) the case is too complex to reasonably expect adequate preparation within the time limits, 18 U.S.C.' § 3161(h)(7) (B) (ii); or (3) whether a refusal to continue the case would deny the defendant “reasonable time to obtain counsel” or would unreasonably deny either party “the reasonable time, necessary for effective preparation,” 18 U.S.C. § 3161(h)(7)(B)(iv). The court may not, however, grant a continuance “because of general congestion of the court’s .calendar.” 18 U.S.C. § 3161(h)(7)(C). The Supreme Court has interpreted these provisions to mean that “the Act requires express findings,” which must be made on the record. See Zedner v. United States, 547 U.S. 489, 506-07, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Likewise, we have previously instructed, “[w]hen considering such a continuance, the trial court must make explicit findings regarding why granting the continuance will strike a proper balance between the ends of justice and the best interest of the public and the defendant in a speedy trial.” United States v. Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993). Rut we have further explained, “[i]n setting forth its findings, however, the district court need not articulate facts ‘which are obvious and set forth in the motion for the continuance itself.’ ” Id. (quoting United States v. Lattany, 982 F.2d 866, 879 (3d Cir. 1992)). And we have clarified that “[i]n determining whether the district court relied on sufficient facts in granting an ends-of-justice continuance, we can look to ‘the oral and written statements of both the district court and the moving party.’” United States v. Loughrin, 710 F.3d 1111, 1119 (10th Cir. 2013) (quoting United States v. Toombs, 574 F.3d 1262, 1271 (10th Cir. 2009)). In considering whether \"there are sufficient ends-of-justice findings in the record, we have distinguished between (1) cases where the record" }, { "docid": "9882651", "title": "", "text": "offered by the defendant or found in the record by this court persuades us that there was plain error in the delay prior to Algienon Tanner’s appear-ánce in the trial venue. Certainly the delay had no impact on the jury’s finding of guilt. In any case, if § 3161(j) had been violated by the government’s lack of promptness, the remedy for such a violation is not dismissal of the indictment, but rather disciplinary sanctions against the government at torney. 18 U.S.C. § 3162(b)(4); United States v. Dawn, 900 F.2d at 1135. The other charge raised by the defendant for the first time herein is that the court’s granting of a continuance in its Order of January 11, 1990 was retroactive, imper-missibly wiping out violations of the Speedy Trial Act after they occurred. As support for his assertion, Mr. Tanner cites United States v. Janik, 723 F.2d 537 (7th Cir.1983). In Janik, this court reviewed a district court’s grant of an “ends of justice” continuance based upon 18 U.S.C. § 3161(h)(8)(A). It concluded that a district judge must make findings that the “ends of justice” require a postponement of the trial. Id. at 545. Although the judge may enter those findings after granting the continuance, he must consider the matter before the period sought to be excluded begins to run; thus a continuance cannot be a nunc pro tunc retroactive justification for previously unauthorized delays. Id. In Algienon Tanner’s case, the district court made proper “ends of justice” findings under this provision in its Order of March 14, 1990 granting the defendant’s motion for continuance due to unavailability of counsel. Such exclusions are valid under 18 U.S.C. § 3161(h)(8)(B)(iv); a continuance on that basis was certainly within the court’s discretion. And since the findings were made contemporaneously with the grant of a continuance, there was no retroactive exclusion. However, Mr. Tanner has not objected to this continuance. The one to which he objects is the continuance approved in the district court’s January 11, 1990 Order. The court’s two justifications for postponing the trial were the ongoing Rule 20 processing of codefendant" } ]

[ { "docid": "2052523", "title": "", "text": "in the value of the lots”); Gilbert v. Nixon, 429 F.2d 348, 354 (10th Cir.1970) (involving fractional working interests in oil and gas leases); Continental Mktg. Corp. v. SEC, 387 F.2d 466, 470 (10th Cir.1967) (involving investment transaction whereby purchasers “bought” beavers but left them at ranches where they would be cared for, with the inducement of reaping “geometric profits” as the beavers reproduced and offspring were sold), cert. denied, 391 U.S. 905, 88 S.Ct. 1655, 20 L.Ed.2d 419 (1968). In addition, two of these cases were issued before Forman explicitly defined “profit” in 1974. Because the Plaintiffs do not meet the profit prong of the Howey test, we find that the EARs are not securities within the meaning of the Securities Act. We therefore reverse the jury’s verdict that PIIGI was liable for RICO securities fraud under Count 1. II. PARTICIPATION OF PIIGI IN RICO ENTERPRISE PIIGI contends that the Plaintiff failed to prove all of the elements of a RICO claim. The defendant was convicted of violating § 1962(c) of RICO which makes it 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 participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c) (emphasis added). To prove a claim under § 1962(c), the Plaintiff must show that PIIGI (1) participated in the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1273 (10th Cir.1989) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L,Ed.2d 346 (1985)). In particular, PIIGI contends that the Plaintiff failed to prove the first element — that it participated in the enterprise’s conduct — and the third element — that there existed a pattern of racketeering activity. We will address PIIGI’s participation in this section, and the existence of a pattern in Part III. “When a jury verdict is challenged on appeal, our review" } ]

[ { "docid": "2079867", "title": "", "text": "defines “racketeering activity” as any act that violates specified state and federal crimes, including mail fraud, wire fraud, and bank fraud. 18 U.S.C. § 1961(1); Resolution Trust Corp., 998 F.2d at 1543. The various acts of racketeering activity described in the statute are often referred to as “predicate acts” because they form the basis for liability under RICO. Bacchus Industr., Inc., 939 F.2d at 891. However, a person does not have to be formally convicted of any predicate act before liability under 18 U.S.C.1962(c) may attach. Condict v. Condict, 826 F.2d 923, 926 (10th Cir.1987) (citing Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). BOMC claims the Title Companies committed the following predicate acts: mail fraud, in violation of 18 U.S.C. § 1341 (Supp.1999), wire fraud, in violation of 18 U.S.C. § 1343 (Supp.1999), and financial institution fraud, in violation of 18 U.S.C. § 1344 (Supp.1999). To establish a claim of mail fraud under 18 U.S.C. § 1341, BOMC must allege: “(1) the existence of a scheme or artifice to defraud or obtain money or property by false pretenses, representations or promises, and (2) use of the United States mails for the purpose of executing the scheme.” Bacchus, 939 F.2d at 892 (citing United States v. Warren, 747 F.2d 1339, 1344 (10th Cir.1984)). The elements of wire fraud are very similar, but require that the defendant “use interstate wire, radio or television communications in furtherance of the scheme to defraud.” Id. (citing 18 U.S.C. § 1343 (1988)). The elements of financial institution fraud include: “(1) that the defendant knowingly executed or attempted to execute a scheme (i) to defraud, or (ii) to obtain property by means of false or fraudulent pretenses, representations or promises; (2) that defendant did so with the intent to defraud; and (3) that the financial institution was then insured by the Federal Deposit Insurance Corporation.” United States v. Rackley, 986 F.2d 1357, 1360-61 (10th Cir.1993) (citing 18 U.S.C. § 1344; United States v. Bonnett, 877 F.2d 1450 (10th Cir.1989)). Clearly, the common thread among each of these crimes" }, { "docid": "10535441", "title": "", "text": "RICO claims against Caesars. III. RICO Conspiracy Claim Plaintiff asserts a private cause of action for treble damages under 18 U.S.C. § 1964(c) based on injury to his person by reason of a violation of 18 U.S.C. § 1962. Plaintiff filed a complaint alleging a conspiracy to violate § 1962(c) prohibited under 18 U.S.C. § 1962(d) which states: “It shall be unlawful for any person to conspire to violate any of the provisions of subsection(s) ... (c) of this section.” 18 U.S.C.A. § 1962(d) (1984). Liability under § 1962(c) requires: (1) the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). In order to establish a pattern of racketeering activity, a plaintiff must allege two or more related predicate acts of racketeering activity. Sun Savings and Loan Association v. Dierdorff 825 F.2d 187, 193 (9th Cir.1987). Title 18 U.S.C. § 1961(1) defines “racketeering activity” to include any act which is indictable under 18 U.S.C. § 1341 (relating to mail fraud) and 18 U.S.C. § 1343 (relating to wire fraud). 18 U.S. C.A. 1961(1) (Supp.1988). This court must determine whether the alleged conspiracy in fact involved the violation of a substantive RICO provision. Here, Plaintiff alleges violation of mail and wire fraud statutes. A. Mail Fraud To allege a violation of mail fraud statute, it is necessary to show, inter alia, that: (1) the defendants formed a scheme or artifice to defraud; (2) the violative act was perpetuated “for obtaining money or property by means'of false or fraudulent pretenses.” 18 U.S.C. § 1341 (1984). Use of the mail with false or fraudulent pretenses for the specific purpose of causing pecuniary loss must be alleged. First Pacific Bancorp, Inc. v. Bro, 847 F.2d 542, 546-47 (9th Cir.1988); see McNally v. United States, 483 U.S. 350, 356-61, 107 S.Ct. 2875, 2879-81, 97 L.Ed.2d 292, 300-02 (1987) (Section 1341 is limited to scope to the protection of property rights, and does not refer to the intangible right of the citizenry to have public officials" }, { "docid": "23415372", "title": "", "text": "of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962(c). The United States has proven this violation by establishing each of the following elements: • The existence of an enterprise; • The enterprise was engaged in, or its activities affected, interstate or foreign commerce; • Each defendant was employed by or associated with the enterprise; • Each defendant conducted or participated, directly or indirectly, in the conduct of the affairs of the enterprise; • Each defendant committed at least two acts of racketeering within 10 years of one another; and • The racketeering acts constitute a pattern of racketeering activity. See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496-97, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); United States v. Hoyle, 122 F.3d 48, 50 (D.C.Cir.1997) (listing elements); United States v. Philip Morris USA, 316 F.Supp.2d 13, 16 (D.D.C. 2004). All the alleged predicate racketeering acts in this case involve mail or wire fraud offenses, in violation of 18 U.S.C. § 1341 or § 1343. The mail fraud statute, 18 U.S.C. § 1341, provides in relevant part: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do, [mails or causes the mailing of any matter] ... shall be fined under this title or imprisoned not more than 20 years, or both. To establish an offense under § 1341 (or § 1343), the plaintiff must prove by a preponderance of evidence the following elements: • The defendant knowingly devised or intended to devise any scheme or artifice to defraud a victim of money or property, or the defendant knowingly devised or intended to devise any scheme for obtaining money or property by means of material false or fraudulent, representations, pretenses, or promises, and • The defendant mailed any matter, or caused the mailing of any matter (or sent or caused to be send by interstate wire transmission)," }, { "docid": "6835817", "title": "", "text": "enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. “A violation of § 1962(c) ... requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. The plaintiff must, of course, allege each of these elements to state a claim.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3284, 87 L.Ed.2d 346 (1985). Racketeering activity is defined by RICO as any act “chargeable” under several generieally described criminal laws, and any act “indictable” under numerous federal criminal provisions, including mail and wire fraud. 18 U.S.C.A. § 1961(1)(A-B). These offenses are commonly referred to as RICO “predicate acts.” The Kerbys allege that the predicate acts committed by the defendants are proscribed by the mail and wire fraud statutes, 18 U.S.C.A §§ 1341, 1343, listed in § 1961(1)(B). “The elements of mail fraud are (1) a scheme disclosing an intent to defraud, and (2) the use of the mails in furtherance of the scheme.” Chisolm v. TranSouth Financial Corp., 95 F.3d 331, 336 (4th Cir.1996) (explaining the elements of mail fraud under 18 U.S.C.A. § 1341). Wire fraud is similar, except that “wire, radio, or television,” rather than the mails, provides the means to further the fraud. 18 U.S.C.A. § 1343. In the context of a RICO action, the mailings or wirings do not have to contain the misrepresentations that defrauded the plaintiff, but must merely be in furtherance of the fraudulent, material misrepresentation upon which the plaintiff justifiably relies to his or her detriment. As the Fourth Circuit recently explained, with a somewhat gruesome metaphor, a civil RICO suit may be maintained, not only in mail fraud cases where the deceitful mailing is the blade rushing down' toward the guillotine victim, but also in cases involving more grandiose schemes to cheat, where the mailing is but part of the frame that holds the blade.... The only caveat is that, where fraud is alleged as" }, { "docid": "22355419", "title": "", "text": "definition requires at least two acts of “racketeering activity” within a ten-year period. § 1961(5). “Racketeering activity” is defined to include mail fraud (18 U.S.C. § 1341) and wire fraud (18 U.S.C. § 1343). 18 U.S.C. § 1961(1). These acts of racketeering activity are often referred to as “predicate acts” because they form the basis for liability under RICO. However, a pattern of racketeering activity is not established merely by proving two predicate acts. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 236, 109 S.Ct. 2893, 2899, 106 L.Ed.2d 195 (1989). Rather, “[t]o establish a RICO pattern it must also be shown that the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity.” Id. 109 S.Ct. at 2901 (emphasis in original). Thus, to properly allege a pattern of racketeering activity as required by RICO, Bacchus must identify a minimum of two instances of racketeering activity as defined in § 1961(1) which amount to, or otherwise constitute a threat of continuing racketeering activity by the enterprise. Bacchus claims that Arvin committed nu merous acts of mail fraud and wire fraud by communicating, through the mail and by telephone, with Arvin sales representatives and with Bacchus. Bacchus claims that Arvin intentionally misrepresented the Bacchus cooler as a fire hazard through its memoranda and by distributing the Phoenix Test Burn tape. Bacchus also claims that Arvin made fraudulent misrepresentations in Arvin’s June 12, 1984 letter to Bacchus in which Arvin agreed to withdraw the Phoenix Test Burn tape. In order to state a claim of mail fraud under 18 U.S.C. § 1841, Bacchus must allege (1) the existence of a scheme or artifice to defraud or obtain money or property by false pretenses, representations or promises, and (2) use of the United States mails for the purpose of executing the scheme. United States v. Warren, 747 F.2d 1339, 1344 (10th Cir.1984). The elements of wire fraud under 18 U.S.C. § 1343 are similar but require that the defendant use interstate wire, radio or television communications in furtherance of the scheme to defraud. See 18 U.S.C." }, { "docid": "8823039", "title": "", "text": "U.S.C. § 1962(c) against Schreck and Stohlton and against LLCP under 18 U.S.C. § 1962(d) for conspiring to violate Section 1962(c). LLCP argues that Plaintiffs fail to allege an underlying claim under Section 1962(c) and, thus, that they fail to allege a claim for conspiracy under Section 1962(d). Schreck and Stohlton join in LLCP’s motion and argue that Plaintiffs fail to allege sufficient conduct by them to state a claim under Section 1962(c). LLCP further moves to dismiss the Section 1962(d) claim on the grounds that Plaintiffs fail to sufficiently allege its involvement in a conspiracy. The essential elements of a civil RICO violation under Section 1962(c) are: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th Cir.2004). “ ‘Racketeering activity’ is defined in 18 U.S.C. § 1961(1)(B) as including any act ‘indictable’ under certain enumerated federal criminal statutes, including 18 U.S.C. § 1341, which makes mail fraud a criminal offense, and 18 U.S.C. § 1343, which makes wire fraud a crime.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1399 (9th Cir.1986). To allege a violation of mail fraud under § 1341, “it is necessary to show that (1) the defendants formed a scheme or artifice to defraud; (2) the defendants used the United States mails or caused a use of the United States mails in furtherance of the scheme; and (3) the defendants did so with the specific intent to deceive or defraud.” Id. (citing Schreiber, 806 F.2d at 1400). To be considered part of the fraud, the use of the mails need not be an essential element of the scheme. Schmuck v. United States, 489 U.S. 705, 710, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). “It is sufficient for the mailing to be ‘incident to an essential part of the scheme’ or ‘a step in [the] plot.’ ” Id. (citing Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 60 L.Ed." }, { "docid": "22838158", "title": "", "text": "sufficiently alleged predicate acts that can serve as a basis for RICO liability. A. Pattern of racketeering activity Plaintiffs allege Defendants engaged in predicate acts of mail fraud, wire fraud and bribery. To establish the predicate act of mail fraud, Bricktown, Inc. and Tal, Inc. must allege “(1) the existence of a scheme or artifice to defraud or obtain money or property by false pretenses, representations or promises, and (2) use of the United States mails for the purpose of executing the scheme.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 892 (10th Cir.1991). See United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995). “The elements of wire fraud are very similar, but require that the defendant use interstate wire, radio or television communications in furtherance of the scheme to defraud.” BancOklahoma Mortgage Corp., 194 F.3d at 1102 (internal quotation omitted). [T]he common thread among ... these crimes is the concept of “fraud.” Actionable fraud consists of (1) a representation; (2) that is false; (3) that is material; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent it be acted on; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance; (8) the hearer’s right to rely on it; and (9) injury. Id. at 1103. Failure to adequately allege any one of the nine elements is fatal to the fraud claim. The particularity requirement of Rule 9(b), Federal Rules of Civil Procedure, applies to claims of mail and wire fraud. Robbins v. Wilkie, 300 F.3d 1208, 1211 (10th Cir.2002); Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 989-90 (10th Cir.1992); Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1362 (10th Cir.1989). Thus, “a complaint alleging fraud [must] ‘set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.’ ” Koch v. Koch Indus., 203 F.3d 1202, 1236 (10th Cir.2000) (quoting Lawrence Nat’l Bank v. Edmonds (In re Edmonds), 924 F.2d 176, 180 (10th Cir.1991)). A plaintiff asserting" }, { "docid": "23154955", "title": "", "text": "could have found that an agreement existed between Mr. Cooper and his coconspirators to violate the law. Accordingly, we conclude that the government presented sufficient evidence to support Mr. Cooper’s conviction under Count 1 for conspiring to defraud. C. Mail Fraud and Wire Fraud Convictions (Counts 58-61, 66, 68-69, 74, 76, 78-79, 83, 87-88, 91-93) Next, Mr. Cooper argues that “the government failed to prove its contention that the Renaissance business was a scheme or artifice to defraud customers and [IMAs],” Aplt. Opening Br. at 39 — in other words, he contends that the evidence it presented regarding the mail and wire fraud charges (Counts 58 through 104) was insufficient. “The elements of federal mail fraud as defined in 18 U.S.C. § 1341 are (1) a scheme or artifice to defraud or obtain property by means of false or fraudulent pretenses, representations, or promises, (2) an intent to defraud, and (3) use of the mails to execute the scheme.” United States v. Welch, 327 F.3d 1081, 1104 (10th Cir.2003). “The first and second elements of federal mail and wire fraud are identical. The third element of wire fraud as defined in 18 U.S.C. § 1343 is the use of interstate wire or radio communications to execute the scheme” — that is, “the use of interstate wire or radio communications,” instead of “the mails,” to “execute the scheme.” Id. (footnote omitted). “One may ‘defraud’ another within the meaning of §§ 1341 and 1343 by depriving another of property or ‘the intangible right of honest services.’ ” Id. (quoting 18 U.S.C. § 1346). Mr. Cooper insists that the first element of the mail and wire fraud charge- — “a scheme or artifice to defraud or obtain property by means of false or fraudulent pretenses, representations, or promises” — -was not satisfied here. Instead, he contends that “the evidence adduced at trial overwhelmingly established that Renaissance not only was a legitimate company, but one dedicated to achieving both excellence in its product and consistency and professionalism in its IMA sales force and affiliate network.” Aplt. Opening Br. at 39. 1. Forfeiture “[I]f a" }, { "docid": "1688160", "title": "", "text": "the Consortium, the enterprise, through a “pattern of racketeering activity” in violation of 18 U.S.C. § 1962. Count IV alleges that the defendants collectively conspired to violate 18 U.S.C. § 1962(b) and 1962(c) in violation of § 1962(d). As relief for the alleged RICO violations, defendants seek an injunction essentially voiding all agreements involving the financing and construction of the plant, in addition to actual damages of $25 million trebled to $75 million. II. Plaintiffs filed their original complaint on December 7, 1989. On February 6, 1990, after all defendants had moved to dismiss under Fed R.Civ.P. 9(b) and 12(b)(6), a conference was held in which I suggested that plaintiffs amend the complaint if they thought such amendment could avoid dismissal under Fed.R.Civ.P. 9(b). Plaintiffs filed an amended complaint on July 9,1990. All defendants renewed their motions and filed additional memoranda of law. To establish a civil RICO claim, plaintiff must plead (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). A pattern of racketeering activity requires the commission within a ten year period of at least two predicate acts that violate laws listed in 18 U.S.C. § 1961(1); these acts must be related and must amount to, or threaten the continued likelihood of, continued criminal activity. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 2899, 106 L.Ed.2d 195 (1989). Section 1961(1) of Title 18 defines “racketeering activity” to include, inter alia, violations of federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343. See O’Malley v. New York City Transit Authority, 896 F.2d 704, 706 (2d Cir.1990) (“To be guilty of mail or wire fraud, defendants must have used the mail or wires as a means to obtain money or property by means of false or fraudulent pretenses, representations, or promises or for purposes of executing a scheme to defraud.”). Therefore, each allegation of a predicate act must meet Rule 9(b)’s standards for particularity. Hecht v. Commerce Clearing House, Inc.," }, { "docid": "23676939", "title": "", "text": "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 participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962. Section 1962(a) makes it illegal to invest the income of racketeering activity. Section 1962(c), by contrast, makes it illegal to engage in racketeering activity. Section 1964(c) provides a person with a civil remedy for injuries to business or property from violations of Section 1962. A RICO plaintiff must demonstrate a “pattern of racketeering activity” consisting of at least two instances of racketeering activity. 18 U.S.C. § 1961(5); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1135 (4th Cir.1993). Mail and wire fraud both qualify as predicate acts under the federal RICO statute. See 18 U.S.C. § 1961(1). The mail fraud statute makes illegal the use of U.S. mail for “any scheme or artifice to defraud, or for obtaining money or property by means of false pretenses.” 18 U.S.C. § 1341 (emphasis added). Similarly, the wire fraud statute makes illegal the use of “wire, radio, or television communication” for “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1343. Samsung alleges a “three-party pass-through fraud structure” wherein SEL committed numerous acts of mail and/or wire fraud on the PTO. Samsung first claims that, long before the ’636 patent issued, SEL targeted Samsung as a defendant for a patent infringement suit. Samsung alleges that a competitor of Samsung, a “VIP” client of SEL, then agreed to pay SEL’s litigation costs in its suit against Samsung. According to Samsung, SEL made material misrepresentations to the PTO using the U.S. mail and withheld material references from the PTO. Samsung claims that this fraud resulted in the improper issuance of the three originally asserted patents, which SEL in turn has employed to extort Samsung and others. Although Samsung concedes that the direct" }, { "docid": "12578926", "title": "", "text": "or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity, id. § 1962(c). RICO defines racketeering activity to include mail fraud in violation of 18 U.S.C. § 1341 and wire fraud in violation of 18 U.S.C. § 1343. See 18 U.S.C. § 1961(1). The mail and wire fraud statutes prohibit the use of those means of communication in furtherance of “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. §§ 1341, 1343. The mailing of false state sales tax returns may constitute mail fraud in violation of § 1341. See, e.g., United States v. Porcelli, 865 F.2d 1352, 1360-61 (2d Cir.), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989); see also United States v. Slevin, 106 F.3d 1086, 1088 (2d Cir.1996) (“Because the[ mail and wire fraud] statutes use the same relevant language, they are analyzed in the same way.”). Generally, two or more related acts of racketeering activity may be considered a “pattern” of racketeering activity. See 18 U.S.C. § 1961(5); United States v. Indelicato, 865 F.2d 1370, 1381-84 (2d Cir.) (en banc), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700 (1989). B. Civil RICO Claims and Proximate Causation The requirement in § 1964(c) that a civil RICO plaintiff show that it was injured in its business or property “by reason of’ the defendant’s RICO violation means that the plaintiff must plead and prove that the violation not only was the logical, or “but for,” cause of the injury but also was its legally cognizable, or proximate, cause. See, e.g., Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 265-68, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992); Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir.2003); Lerner v. Fleet Bank, N.A., 318 F.3d 113, 123 (2d Cir.), cert. denied, - U.S. -, 124 S.Ct. 532. 157 L.Ed.2d 424 (2003); Commercial Cleaning Services, L.L.C. v. Colin Service Systems," }, { "docid": "15502701", "title": "", "text": "motion is for the Court to “identify!] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” 129 S.Ct. at 1950. The Court’s factual recitation set forth above is an attempt to do so. Once the complaint has been winnowed down to only those sufficiently-specific, non-conclusory factual allegations, the Court treats those allegations as true and proceeds to examine whether, under the controlling law, those facts are sufficient to state a claim. 2. RICO and COCCA claims The Court first turns to the Defendants’ challenges to the sufficiency of the pleading of L3’s RICO and COCCA claims. The two statutes are similar and are generally construed according to similar principles. Tara Woods Ltd. Partnership v. Fannie Mae, 731 F.Supp.2d 1103, 1125 (D.Colo.2010). In broad terms, a party asserting a garden-variety RICO or COCCA claim must plead four major elements: (i) conduct; (ii) of an enterprise; (iii) through a pattern of two or more instances; (iv) of racketeering activity. Bixler v. Foster, 596 F.3d 751, 761 (10th Cir.2010). The Defendants first challenge the sufficiency of L3’s allegations of predicate acts of “racketeering activity.” Under RICO, acts which would constitute criminal mail or wire fraud, in violation of 18 U.S.C. § 1341 or § 1343, can constitute “racketeering activity.” 18 U.S.C. § 1961(1) (defining “racketeering activity”). To plead these predicate acts, L3 must plead facts showing: (i) Defendants engaged in a scheme to defraud by means of false pretenses; (ii) the Defendants acted with the requisite intent to defraud; and (iii) the scheme contemplated the use of mail or wire transactions. Burnett v. Amrein, 243 Fed.Appx. 393, 395 (10th Cir. 2007) (unpublished). Under Fed.R.Civ.P. 9(b), allegations of fraud must be pled with particularity, and thus, in alleging the predicate acts of mail and wire fraud, L3 must “set forth the time, place, and contents of the false representation, the identity of the party making the false statement, and the consequences thereof.” Id.; Tal v. Hogan, 453 F.3d 1244, 1263 (10th Cir .2006). L3 attempts to itemize the specific allegations of mail and wire fraud in" }, { "docid": "16623405", "title": "", "text": "et seq.) In order to state a civil RICO claim, a plaintiff must allege that he or she suffered (1) an injury to his or her business or property because the defendant(s), (2) while involved in one or more enumerated relationships with an “enterprise,” (3) engaged in a pattern of racketeering activity or collected an unlawful debt. See 18 U.S.C. §§ 1961-1968 (2000). Predicate Acts of “Racketeering Activity” (18 U.S.C. § 1961(1)) Among the essential elements required to establish civil liability under the RICO statute, plaintiffs must show, inter alia, that the defendants have conducted the affairs of an identifiable “enterprise” through a “pattern of racketeering activity,”- that is, that the defendants have committed a continuous series of related criminal acts in violation of one or more of the statutes listed in 18 U.S.C. § 1961(1) (“racketeering activity” defined). 18 U.S.C. § 1962. See, e.g., BancOklahoma Mortgage Corp. v. Capital Title Co., 194 F.3d 1089, 1100 (10th Cir.1999) (“To establish a civil RICO claim under 18 U.S.C. § 1962(c), [plaintiff] must show that the [defendants] ‘(1) participated in the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.’ Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1541 (10th Cir.1993) (citing Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1273 (10th Cir.1989)).”) Defendants “need not engage in the stereotypical mobster behavior to come within the bounds of civil RICO,” Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 447 (5th Cir.1992) (citing United States v. Turkette, 452 U.S. 576, 580-81, 591, 101 S.Ct. 2524, 69 L.Ed.2d 246(1981)), but they must nevertheless be shown to have participated in continuing criminal violations constituting an identifiable “pattern of racketeering activity.” See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). The Proposed Amended Complaint points to mail fraud (18 U.S.C. § 1341), witness tampering (18 U.S.C. § 1512) and interference with commerce by threats (18 U.S.C. § 1951) as the predicate acts of racketeering activity pertinent to plaintiffs’ claims asserted in this case. (Proposed Amended Complaint at 12.) (a)" }, { "docid": "22838157", "title": "", "text": "§ 201. Specifically, Bricktown, Inc. and Tal, Inc. allege the Developers fraudulently procured the Bricktown redevelopment contract by misrepresenting to the Renewal Authority and the city council that they were backed by Torchmark Corporation. They also allege the Developers “acquired or maintained ... interest in or control over” the Renewal Authority and the city council through bribery. (Appellants’ App., Ex. 1 at 58.) The district court dismissed the subsection (b) claim against the Developers for failure to specifically allege predicate acts and failure to show an interest in or control over the Renewal Authority or the city council. It dismissed the subsection (c) claim against Douglas for failure to specifically allege predicate acts and failure to show a continuing threat to other parties from the alleged RICO activities. The district court also dismissed the subsection (d) claim against the Developers and Douglas for failing to sufficiently allege a predicate violation of subsections (b) or (c). Because subsections (b) and (c) both require allegations of racketeering activity, we first determine whether Bricktown, Inc. and Tal, Inc. sufficiently alleged predicate acts that can serve as a basis for RICO liability. A. Pattern of racketeering activity Plaintiffs allege Defendants engaged in predicate acts of mail fraud, wire fraud and bribery. To establish the predicate act of mail fraud, Bricktown, Inc. and Tal, Inc. must allege “(1) the existence of a scheme or artifice to defraud or obtain money or property by false pretenses, representations or promises, and (2) use of the United States mails for the purpose of executing the scheme.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 892 (10th Cir.1991). See United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995). “The elements of wire fraud are very similar, but require that the defendant use interstate wire, radio or television communications in furtherance of the scheme to defraud.” BancOklahoma Mortgage Corp., 194 F.3d at 1102 (internal quotation omitted). [T]he common thread among ... these crimes is the concept of “fraud.” Actionable fraud consists of (1) a representation; (2) that is false; (3) that is material; (4) the speaker’s knowledge" }, { "docid": "7835725", "title": "", "text": "has adequately met this requirement notwithstanding that its injury did not arise from its participation in a commercial transaction. See Illinois Dep’t of Revenue v. Phillips, 771 F.2d 312, 314-16 (7th Cir.1985) (rejecting the notion that a State government unit suing under RICO is limited to competitive or commercial injuries); but see Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 977-80 (9th Cir.2008) (endorsing the dicta in Town of West Hartford). C. Section 1962(c) Violation As noted above, to state a claim for damages under § 1964(c) a plaintiff must first allege a substantive RICO violation under § 1962(c). See Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). In turn, § 1962(c) makes it “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 participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity....” 18 U.S.U § 1962(c). We discuss the “racketeering activity” and “enterprise” elements of a substantive RICO violation as they relate to these cases in turn. 1. Racketeering Activity “Mail fraud and wire fraud are forms of ‘racketeering activity’ for purposes of RICO.” Anza, 547 U.S. at 454,126 S.Ct. 1991; see also 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud). “To procure a conviction for mail fraud, the government must prove three elements: (1) a scheme to defraud victims of (2) money or property, through the (3) use of the mails.” United, States v. Walker, 191 F.3d 326, 334 (2d Cir.1999), cert. denied, 529 U.S. 1080, 120 S.Ct. 1702, 146 L.Ed.2d 506 (2000). Likewise, a defendant commits wire fraud where he “was one of the participants in a fraudulent scheme which was furthered by the use of interstate transmission facilities.” United States v. Corey, 566 F.2d 429, 431 n. 2 (2d Cir.1977). “Allegations of mail [or wire] fraud must be made with the particularity required by Federal Rule of Civil Procedure 9(b).” McLaughlin, 962 F.2d at 191." }, { "docid": "3814295", "title": "", "text": "have re-pled their RICO, RICO conspiracy, and civil conspiracy claims against a sub-set of the original third-party defendants, including ACE, The Hartford, Liberty Mutual, and Travelers (collectively the “RICO Defendants”). To state a RICO claim under § 1962(c) or (d), a plaintiff must allege: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Jennings v. Auto Meter Products, Inc., 495 F.3d 466, 472 (7th Cir.2007). “Pattern of racketeering activity” is defined in 18 U.S.C. § 1961(5) as the commission of at least two of the predicate acts enumerated in 18 U.S.C. § 1961(1) within a ten year period. In the instant case, plaintiffs allege predicate acts of mail and wire fraud and deprivation of “honest services” fraud. Acts of mail and wire fraud must be pled with particularity under Fed. R.Civ.P. 9(b). The pleading party must explain how the predicate act of mail or wire fraud constitutes “racketeering activity.” Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294, 298 (7th Cir.2003). The elements of mail fraud under 18 U.S.C. § 1341 are: “(1) the defendant’s participation in a scheme to defraud; (2) defendant’s commission of the act with intent to defraud; and (3) use of the mails in furtherance of the fraudulent scheme.” Id. at 299 (quoting United States v. Walker, 9 F.3d 1245, 1249 (7th Cir.1993)); see also Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 923 (7th Cir.1992) (“Plaintiff must plead the “who, what, when, and where’ of the alleged fraud.”). A defendant’s participation in a scheme to defraud with intent to defraud is also an element of an “honest services” mail or wire fraud claim under 18 U.S.C. § 1346. See U.S. v. Fernandes, 272 F.3d 938, 944-45 (7th Cir.2001). Plaintiffs’ claims against defendants stem from five broad, underlying allegations. First, plaintiffs allege that the Pool Board Members declined to participate in the Fund, blocked any states from claiming against the Fund on the Pool’s behalf, and prevented the Pool from making any claims against the Fund. Second, plaintiffs contend that the Pool Board Members suppressed any investigation into premium underreporting by" }, { "docid": "16621712", "title": "", "text": "we now turn to the district court’s decision to dismiss Counts VI through XV of the indictment, ie., the mail and wire fraud counts. Because we have upheld the sufficiency of the Travel Act counts, we need not address the district court’s holding that the mail and wire fraud counts cannot be segregated from the Travel Act counts without improperly amending the grand jury’s indictment in violation of the Fifth Amendment. See United States v. Cusumano, 83 F.3d 1247, 1250-51 (10th Cir.1996) (en banc) (exercising judicial restraint in constitutional adjudication). Instead, we focus on Defendants’ claim, rejected by the district court, that the mail and wire fraud counts fall of their own weight. The elements of federal mail fraud as defined in 18 U.S.C. § 1341 are (1) a scheme or artifice to defraud or obtain property by means of false or fraudulent pretenses, representations, or promises, (2) an intent to defraud, and (3) use of the mails to execute the scheme. See United States v. Haber, 251 F.3d 881, 887 (10th Cir.2001). The first and second elements of federal mail and wire fraud are identical. ' The third element of wire fraud as defined in 18 U.S.C. § 1343 is the use of interstate wire or radio communications to execute the scheme. See United States v. Smith, 133 F.3d 737, 742 (10th Cir.1997). One may “defraud” another within the meaning of §§ 1341 and 1343 by depriving another of property or “the intangible right of honest services.” 18 U.S.C. § 1346. Whether alleging a deprivation of property or honest services or both, a mail or wire fraud indictment must allege a scheme to defraud, an intent to defraud, and use of mail or wire. See United States v. Vinyard, 266 F.3d 320, 326 (4th Cir. 2001). 1. In this case, the mail and wire fraud counts set forth the required elements in the language of the statutes. In addition, each count independently sets forth an alleged interstate or international mailing or wire transfer designed to further the scheme. See supra nn. 6 and 7. Thus, the mail and wire" }, { "docid": "3934030", "title": "", "text": "3853602, at *11 (10th Cir.2015) (observing “Cleveland ... effectively overruled Cronic ”). In post-Cleveland decisions, we have consistently indicated that specific intent to defraud is an element of a § 1341 offense. See United States v. Welch, 327 F.3d 1081, 1104 (10th Cir.2003) (“The elements of federal mail fraud as defined in 18 U.S.C. § 1341 are (1) a scheme or artifice to defraud or obtain property by means of false or fraudulent pretenses, representations, or promises, (2) an intent to defraud, and (3) use of the mails to execute the scheme.”); see also United States v. Porter, 745 F.3d 1035, 1050 (10th Cir.2014) (reiterating elements set forth in Welch); United States v. Schuler, 458 F.3d 1148, 1152 (10th Cir.2006) (same). Even when our decisions construed § 1341 to contain two offenses, they required specific intent to defraud for each of them. See, e.g., United States v. Deters, 184 F.3d 1253, 1257 (10th Cir.1999) (“The essential elements of fraud under 18 U.S.C. § 1341 are (1) the devising of a scheme either to (a) defraud or (b) obtain money through false or fraudulent pretenses, representations, or promises; (2) a specific intent to defraud; and (3) the use of the United States mails to execute the scheme.”); see also Haber, 251 F.3d at 887 (same); United States v. Gigot, 147 F.3d 1193, 1196 n. 2 (10th Cir.1998) (same); United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995) (same). The list of these essential elements indicates specific intent to defraud applies to all § 1341 violations. The Government does not cite any authority that affirmatively indicates specific intent to defraud is not a requirement of an “obtaining money or property” offense. We conclude proof of intent to defraud is required for a scheme to obtain money or property, and the district court erred in failing to include this element in Instruction 17. b. The error was plain Having identified error, we determine the error was plain. We measure plain error at the time of appeal. See United States v. Cordery, 656 F.3d 1103, 1107 (10th Cir.2011). The Supreme Court’s construction of" }, { "docid": "22838156", "title": "", "text": "Douglas under 18 U.S.C. § 1962(d). The elements of a civil RICO claim are (1) investment in, control of, or conduct of (2) an enterprise (3) through a pattern (4) of racketeering activity. 18 U.S.C. § 1962(a), (b), & (c). “Racketeering activity” is defined in 18 U.S.C. § 1961(1)(B) as any “act which is indictable” under federal law and specifically includes mail fraud, wire fraud and racketeering. These underlying acts are “referred to as predicate acts, because they form the basis for liability under RICO.” BancOklahoma Mortgage Corp. v. Capital Title Co., 194 F.3d 1089, 1102 (10th Cir. 1999) (internal quotation omitted). “[A] person does not have to be formally convicted of any predicate act before liability under 18 U.S.C. § 1962[ ] may attach.” Id. In the Second Amended Complaint and RICO Case Statement, Bricktown, Inc. and Tal, Inc. alleged the Developers and Douglas engaged in predicate acts of mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343 and bribery in violation of 18 U.S.C. § 201. Specifically, Bricktown, Inc. and Tal, Inc. allege the Developers fraudulently procured the Bricktown redevelopment contract by misrepresenting to the Renewal Authority and the city council that they were backed by Torchmark Corporation. They also allege the Developers “acquired or maintained ... interest in or control over” the Renewal Authority and the city council through bribery. (Appellants’ App., Ex. 1 at 58.) The district court dismissed the subsection (b) claim against the Developers for failure to specifically allege predicate acts and failure to show an interest in or control over the Renewal Authority or the city council. It dismissed the subsection (c) claim against Douglas for failure to specifically allege predicate acts and failure to show a continuing threat to other parties from the alleged RICO activities. The district court also dismissed the subsection (d) claim against the Developers and Douglas for failing to sufficiently allege a predicate violation of subsections (b) or (c). Because subsections (b) and (c) both require allegations of racketeering activity, we first determine whether Bricktown, Inc. and Tal, Inc." }, { "docid": "3982255", "title": "", "text": "prerequisites for an individual to maintain a RICO claim: the affiliation of a defendant with an enterprise engaged in or affecting interstate commerce, and the involvement in or conduct of the enterprise through a pattern of racketeering activity. See United States v. Vignola, 464 F.Supp. 1091 (E.D. Pa.), aff’d, 605 F.2d 1199 (3d Cir.1979), cert. denied 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980). A. “Pattern of Racketeering Activity” One of the thorniest problems raised in connection with the instant motion stems from the phrase “pattern of racketeering activity.” “Racketeering activity” is defined, in pertinent part, as follows: “any act which is indictable under any of the following provisions of title 18, United States Code: ... section 1341 (relating to mail fraud), section 1343 (relating to wire fraud).” 18 U.S.C. § 1961(1)(B). “Pattern of racketeering activity” is further defined as requiring “at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5). The plaintiff contends that the activities alleged constitute mail and/or wire fraud as defined in 18 U.S.C. §§ 1341 and 1343 and as such constitutes the “pattern of racketeering activity” required by RICO. Defendants, on the other hand, argue that even accepting the plaintiff’s allegations as true, their conduct did not meet the definition of mail or wire fraud and that, in any case, RICO was never intended to be so broad in scope as to encompass the activities described. Because it appears from the allegations of the complaint that the use of the mails is the most significant as going to a “pattern of racketeering activity” we will begin by discussing the requisite elements of mail fraud as they relate to the facts in this case. Mail fraud is defined as follows: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or" } ]

[ { "docid": "3509820", "title": "", "text": "17, 1929, and continued in possession until the United States District Court appointed appellee, trustee of the estate of the debtor.- When in possession of the property said receiver leased the premises to appellant “for the term of the receivership in said causes, commencing on July 21, 1933, unless sooner terminated as hereinafter provided.” The lease also provided for its termination upon sixty days’ notice. On June 29, 1932, upon application of the Attorney General of the State of Illinois and after notice had been published as provided by law, the Superior Court of Cook County entered an order dissolving the 211 East Delaware Building Corporation because of its failure to pay the franchise taxes due November 15, 1931. The property covered by the trust deed constituted all the assets of the corporation. The chief reliance of appellant is upon the fact that the corporation, which is the alleged debtor in the proceedings in the court below, was dissolved by judicial decree pursuant to the statute of the State of Illinois. Appellant argues that upon such dissolution the property passed to the stockholders; the alleged debtor ceased to exist and was thereafter not the subject of an adjudication under sections 77A and 77B of the Bankruptcy Act. Passing without comment the action of the receiver in failing to protect the corporation for which he was in part acting and assuming as between the state and the said corporation the latter was not in esse, it by no means follows that the bondholders could not treat the corporation as an entity subject to adjudication under the Bankruptcy Act or under sections 77A and 77B of said act. That a corporation, thus dissolved, exists for certain purposes, Smith-Hurd Rev. St. Ill. 1931, c. 32, §§ 14, 79, Cahill’s Rev. St, Ill. 1931, c. 32, pars. 14, 79, one of which is to have its estate administered in a court of bankruptcy is the holding of the courts that have passed on this question. Hammond et al. v. Lyon Realty Co. (C. C. A.) 59 F.(2d) 592; In re Double Star Brick Company" } ]

[ { "docid": "16454266", "title": "", "text": "Liebling, but such action was reduced to judgment in the Circuit Court in Cook County, Illinois. The judgment, thus, transformed the claim into a fixed debt. In contrast, the claim available to Canadian Ace against defendants, for the alleged antitrust violations, was never asserted by the corporation or its shareholders, either prior to its dissolution or within the two years thereafter. The Illinois Business Corporation Act § 94 preserves claims existing prior to dissolution if action is commenced within two years after the date of dissolution. The statute does not require that the action be finished within this period and reduced to judgment, but only that it be commenced. In discussing § 14 and § 79 of the Illinois Business Corporation Act (predeces sors to § 94) the Supreme Court of the United States stated: After two years, no proceedings may be initiated on behalf of the corporation in either state or federal courts, but such proceedings as have been instituted during that period in any of these courts may be prosecuted to completion. Chicago Title and Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 128-29, 58 S.Ct. 125, 129, 82 L.Ed. 147 (1937). We recognize the general principle that property of a dissolved corporation passes to its stockholders, who can then maintain an action on the property. (Fletcher, supra, § 8224, 19 Am.Jur.2d Corporations § 1659). However, we conclude that in view of the language within § 94, the unasserted claim here was extinguished after two years and did not pass to the former stockholder. In so holding we maké a distinction between the transfer of a corporate claim reduced to a judgment and a never asserted corporate claim. The former represents a debt, fixed in amount, and is evidenced by a document. It is thus similar to a transfer of tangible property on which an action can be maintained. Brooks v. Saloy, supra. The distinction made here, we think, is consistent with the language of § 94 and the policies behind it. As one commentary on the Illinois Business Corporation Act indicated: [The court in" }, { "docid": "18577327", "title": "", "text": "Ray G. Hughes were in direct contravention to the blanket receivership injunction issued by the state court, and that, therefore, there being no valid authority on the part of the directors and officers to act on behalf of the Debtor, the petition should be dismissed. Relying on In re Joseph Feld & Co., 38 F.Supp. 506 (D.N.J.1941), Movants contend that the resolution authorizing the petition passed at the “Special Meeting of the Board of Directors” on February 3, 1982 was invalid as based on an illegal meeting requiring this Court to decline jurisdiction. Citing Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Building Corporation, 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937), Movants contend, state rather than federal law controls, in the first instance, to determine the capacity of a corporation to avail itself of the benefits of the Bankruptcy Code. This capacity, Movants argue, was lost as a result of the state court injunction, rendering the filing ineffectual. The Court finds both cases inapposite under the circumstances of this ease. In In re Joseph Feld & Co., 38 F.Supp. at 507, the court declined jurisdiction of a voluntary petition in bankruptcy since the meeting of the board of directors authorizing the institution of bankruptcy proceedings did not comport with local law. New Jersey law required due notice to all directors of the time, place and object of a meeting, absent waiver. Since one of the three directors of the corporation neither attended the meeting authorizing the petition, nor was notified of it, the resolution was invalid. Chicago Title and Trust Co., 302 U.S. at 126, 58 S.Ct. at 127 held that a corporation which had been validly dissolved under the laws of the state which created it could not seek reorganization under § 77B of the Bankruptcy Act. The record in this case reveals no deficiencies relating to insufficient notice to directors of the meeting authorizing the filing of the petition under Chapter 11, nor has there been any dissolution of the corporation herein involved. Movants’ reliance on the above authority in support of their motion" }, { "docid": "9686628", "title": "", "text": "that no one but the state can attack the corporate character of the company, none but the state question its existence as a corporation. Appellants put their confidence in Chicago Title & Trust Co. v. Wilcox Bldg. Corp., supra, holding that a court of bankruptcy will not entertain proceedings under section 77B, 11 U.S.C.A. § 207, to reorganize a corporation dissolved by judicial proceedings in accordance with the laws of the state of its creation, the time for winding up under the state law having expired. They put their confidence too, in Rossi v. Caire, 186 Cal. 544, 199 P. 1042, 1046, a decision of the Supreme Court of California holding that a solvent corporation, whose charter had been forfeited for nonpayment of its license tax, and which had been revived under a retrospective statute, may not, over the objection of a stockholder that he is entitled to have the assets distributed, carry on a continuing corporate existence. Appellees insist that neither of the cases are applicable here. They answer the Chicago Title Case by saying that there the corporation had been dissolved by judicial decree, the two years given by statute for it to administer its affairs were ended, and there was no revival of it under statutory provision. Here though the corporation had indeed been dissolved by the Governor’s proclamation as a part of a revenue measure, to collect the corporation taxes, not one year of the three years given by the general statutes of the state for winding up, but only a few months, had expired. The charter had been revived by compliance with the 1937 act, and the effort was not to reorganize the corporation as a continuing concern, but to liquidate and wind it up in bankruptcy. As to the California case, they say that what was there decided was not that an insolvent, dissolved corporation could not be revived so as to -be liquidated in bankruptcy, but that, over the protest of a stockholder timely taken, a solvent dissolved corporation could not be continued in life as a going concern. In that case the" }, { "docid": "6888663", "title": "", "text": "Corp., 323 F.2d 274 (2nd Cir.1963), the Connecticut corporation statute had no time limit in which a dissolved corporation had to wind up its affairs. Therefore, although dissolved, the corporation still existed under Connecticut laws and was permitted to file a bankruptcy petition. In In Re International Sugar Feed Co., 23 F.Supp. 197 (D.Minn.1938), a dissolved Minnesota corporation had three years to wind up its affairs, and within those three years, it filed a bankruptcy petition. The court allowed the filing because the corporation still existed under Minnesota law. Accord, In Re Heark Corp., 18 B.R. 557 (D.Md.1982) (no time limit in Maryland in which dissolved corporations could sue or be sued and therefore corporation still existed when petition filed); In Re Rust Control, Inc., 1 B.R. 303 (W.D.Va.1979) (same, construing Virginia law); Old Fort Improvement Co. v. Lea, 89 F.2d 286 (4th Cir.1937) (same, construing South Carolina law). Two other cases have addressed the Chicago Title holding. In In Re Peer Manor Bldg. Corp., 134 F.2d 839 (7th Cir.1948), a similar Illinois dissolution statute as that presented in Chicago Title was in issue. An involuntary bankruptcy petition was filed more than two years after the corporation was dissolved. Just as in Chicago Title, the dissolved corporation ceased to exist two years after dissolution, and the court accordingly held that an involuntary bankruptcy proceeding could not be brought against a nonexistent corporation. (In subsequent cases, the Seventh Circuit determined that Peer Manor Building Corporation was an unincorporated company or association subject to a bankruptcy proceeding. See In Re Peer Manor Bldg. Corp., 143 F.2d 764 (7th Cir.1944) and 143 F.2d 769 (7th Cir.1944)). In In Re S & T Terry Contractors, Inc., 6 B.R. 84 (N.D.Ill.1980), a dissolved Illinois corporation was not allowed to reorganize under chapter 11.' Without addressing the wisdom of this opinion [see In Re Heark Corp., 18 B.R. 557, 560 (D.Md.1982)], it is distinguishable from the instant case because this Court is not presented with a reorganization petition and because K.S.A. § 17-6913 (1981) would appear to permit reorganization of dissolved Kansas corporations. From all these" }, { "docid": "7318652", "title": "", "text": "R.Civ.P. 11 condemns; it does not permit a plaintiff to ignore a motion for summary judgment properly presented under Fed. R.Civ.P. 56; and it does not permit collection from a firm whose debts have been discharged in bankruptcy, see In re CMC Heartland Partners, 966 F.2d 1143 (7th Cir.1992); In re Chicago, Milwaukee, St. Paul & Pacific R.R., 3 F.3d 200 (7th Cir.1993). It follows that § 9607(a)(2) does not authorize litigation against a defunct corporation, any more than it permits litigation against a deceased person after the estate has been closed. Let us suppose that things are otherwise, that Rule 17(b) does not apply in actions under CERCLA. What federal law would apply? The common law rule is that all litigation by or against a dissolved corporation must be dismissed. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 125, 58 S.Ct. 125, 127, 82 L.Ed. 147 (1937); William Meade Fletcher, 8 Cyclopedia of the Law of Private Corporations §§ 5605, 5610 (1919). Chicago Title & Trust held that the absence of a statute extending corporate existence meant that a dissolved firm could not file suit under federal law. Nothing in CERCLA provides for suit after dissolution, so if federal law applies then the plaintiff class cannot pursue the insurers. Its victory on this issue would be Pyrrhic, unless federal law were deemed to track state law, as in cases such as O’Melveny & Myers v. FDIC, — U.S. -, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994), and United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). This would be particularly appropriate in a case that involves corporate organization, a subject usually addressed under the internal affairs doctrine, a choice-of-law principle calling for resort to the law of the firm’s place of incorporation. CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 89-93, 107 S.Ct. 1637, 1649-51, 95 L.Ed.2d 67 (1987); First National City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 621, 103 S.Ct. 2591, 2597, 77 L.Ed.2d 46 (1983); RTC" }, { "docid": "14155340", "title": "", "text": "PER CURIAM. We affirm in open court the order of the District Court dismissing the petition to vacate the adjudication of The Stabe Corporation as a bankrupt. Though The Stabe Corporation forfeited its corporate existence for failure to file annual reports with the Connecticut Secretary of State, under G.S.Conn., Sec. 33-21 (Rev. 1958), it continued in existence “ * * * so far as may be necessary to enable it to prosecute and defend suits by or against it, close up its affairs, dispose of its property and distribute its assets.” Under this provision The Stabe Corporation retained sufficient corporate power to liquidate its assets by filing a voluntary petition in straight bankruptcy. The statute placed a three year limit on the right of the corporation to seek reinstatement as an active corporation by making good its default and paying a reinstatement fee. No such limitation, however, is placed on the continued existence for winding up and liquidation purposes, in contrast to the Illinois statute in the Wilcox case. Moreover, the Stabe Corporation in the instant case, in contrast to the debtor in the Wilcox case, was not seeking to reorganize or revive its powers as an áetive corporation, but to close up its affairs, dispose of its property and distribute its assets through the liquidation provisions of the Bankruptcy Act. The result reached by the court below accords with the letter and spirit of the statutes . Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Building Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937)." }, { "docid": "2592916", "title": "", "text": "petition of the five per cent intervening preferred stockholders, objecting to the attempted reorganization and to the appointment of permanent trustees, was denied on the 9th ■day of August, 1938, and they appealed on the 6th day of September, 1938. This appeal was within the thirty day period provided by statute and is in time. The motion to dismiss cannot be sustained. Two further questions remain for consideration. First, did the Liberty Royalties Corporation on May 5, 1938 have power to institute a voluntary proceeding for its reorganization under the provisions of .Section 77B; and, second, if it did, does the petition filed by the debtor and the ■evidence in support thereof satisfy the .statutory requirement that the debtor be unable to meet its debts as they mature, and was there necessity for reorganization ? Appellant contends that the corporation is prohibited from maintaining a voluntary action for reorganization by the fact that more than three years prior to .the filing of its petition, its charter had been forfeited for the non-payment of fees to the state of Delaware. It is claimed that the failure to pay these fees automatically forfeited and canceled its charter and its corporate franchises and that .the only power the corporation possessed thereafter was to wind up its affairs within the three year period provided for by ■the laws of Delaware. In support of its contention that such .a corporation ceases to exist, Appellant cites and relies upon Chicago Title & Trust Co. v. 4136 Wilcox Bldg., a Corporation, 302 U.S. 120, 58 S.Ct. 125, 129, 82 L.Ed. 147. This was an Illinois case in which the corporation had lost its charter by failing to pay its license fees. The ■corporation had been dissolved by a decree ■of court. An attempt was made to reorganize the corporation under Section 77B and the Supreme Court said that this could not be done. The Supreme Court decided in that case that under the Illinois law, when a charter ■of a corporation was forfeited for the nonpayment of fees, such corporation ceased to exist; that it was dead;" }, { "docid": "5172140", "title": "", "text": "charter. Like the Fourth Circuit in Old Fort, this court finds that the directors of a corporation that has forfeited its charter have the power to file a proceeding under Chapter 7 of the Bankruptcy Code because Chapter 7 provides a process for orderly liquidation of an estate that is perfectly consistent with Maryland law. See In Re Rust Control, Inc., 1 B.R. 303 (Bkrtcy.W.D.Va.1979) (holding that under Virginia law a corporation with a revoked charter can file a voluntary petition). The timeliness of this petition is not at issue here because the Maryland statute does not place time limits on the winding-up process. Cf. Chicago Title and Trust Co. v. 4136 Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937) (construing Illinois statute that prohibited initiation of legal process on behalf of defunct corporations more than two years after lapse of charter); In Re International Sugar Feed Corp., 23 F.Supp. 197 (D.Minn.) aff’d, 306 U.S. 182, 59 S.Ct. 396, 83 L.Ed. 595 (1938) (construing Minnesota statute allowing corporate existence to continue for three years, for limited purposes). The Richardsons rely upon the case of In Re S & T Terry Contractors, Inc., 6 B.R. 84 (Bkrtcy.N.D.Ill.1980) to support the proposition that when a corporation has its charter revoked by the Secretary of State, it may not, thereafter, file a voluntary petition under the saving provisions of state law. It may be noted that Terry Contractors involved a petition under Chapter 11 of the Bankruptcy Code. Chapter 11 provides the means by which an individual or an entity may reorganize its business affairs and continue to operate the business as a debtor-in-possession. H. Miller and M. Cook, A Practical Guide to the Bankruptcy Reform Act (1979) p. 486. The present case, however, involves the liquidation of the Debtor under Chapter 7. There is an obvious difference between a case on one hand looking to the closing down of a corporation and a case looking to its revival and continuation as a going concern. The language of the Maryland statute specifically contemplates the winding down that is" }, { "docid": "9686627", "title": "", "text": "& Trust Co. v. Wilcox Bldg. Corp., 302 U.S. 120, at page 127, 58 S.Ct. 125, 128, 82 L.Ed. —; (3) if after the dissolution the corporation could have been revived under the 1937 act, this could have been done only by the trustees or the stockholders as a whole, and not, as was done here, by one of the trustees, the president of the company, and there was therefore not only no authority in those who authorized the filing of'the voluntary petition to act for it, but there was no effective revival of the corporate life, and no corporation in existence to be adjudicated. Appellees stand upon compliance with the revival act of 1937 as conclusively established by the receipt and certificate of the Secretary of State. They insist that the payment of and acceptance by the state of the delinquent taxes, evidenced by the issuance of the statutory receipt has, as between the company and the state, fully revived the corporate life ab initio as of the dissolution' in September, with the result that no one but the state can attack the corporate character of the company, none but the state question its existence as a corporation. Appellants put their confidence in Chicago Title & Trust Co. v. Wilcox Bldg. Corp., supra, holding that a court of bankruptcy will not entertain proceedings under section 77B, 11 U.S.C.A. § 207, to reorganize a corporation dissolved by judicial proceedings in accordance with the laws of the state of its creation, the time for winding up under the state law having expired. They put their confidence too, in Rossi v. Caire, 186 Cal. 544, 199 P. 1042, 1046, a decision of the Supreme Court of California holding that a solvent corporation, whose charter had been forfeited for nonpayment of its license tax, and which had been revived under a retrospective statute, may not, over the objection of a stockholder that he is entitled to have the assets distributed, carry on a continuing corporate existence. Appellees insist that neither of the cases are applicable here. They answer the Chicago Title Case by" }, { "docid": "6888660", "title": "", "text": "amount of $4,003.57 representing the balance of an insufficient funds check written by Liberal Mack Sales, Inc. for merchandise, and that no payments have been made to reduce the debt since September of 1981, although bills have been sent and demands have been made for payment. e. R.W. Clingan, Sr., P.O. Box 296, Liberal, Kansas, would testify that he is President of Clingan Tires, Inc. in Liberal, Kansas. Liberal Mack Sales, Inc. is indebted to Clingan Tires, Inc. in the amount of $8,477.80. That this debt is for tires, and that no payments have been made to reduce the debt since September of 1981, although bills have been sent and demands have been made for payment. 4. That the parties agree that the testimony that would have been adduced at a trial shows that the five Petitioning Creditors who would have testified are owed an aggregate of $36,189.53, and that no payments have been made to any of the Petitioning Creditors, by Liberal Mack Sales,.Inc. in the regular course of business since September, 1981.” Thus, faced with an involuntary petition filed by more than three entities with claims totalling over $5,000, the alleged debtor has stipulated that it generally is not paying its debts as they become due. CONCLUSIONS OF LAW A. Jurisdiction. In Chicago Title and Trust Co. v. Forty-One-Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937), the Supreme Court held that a dissolved corporation’s ability to avail itself of the bankruptcy laws depends on how the state in which it was incorporated defined its existence after dissolution. Construing Illinois law in 1937, the court stated dissolved corporations continued their capacity to collect debts, and sue and be sued for two years after dissolution. Forty-One-Thirty-Six Wilcox Bldg. Corp., however, did not attempt to file bankruptcy until five years after dissolution. Therefore, the Supreme Court held it no longer existed under state law and could not file bankruptcy. Chicago Title’s holding is limited in two respects. First, it involved a voluntary petition in bankruptcy, and the Supreme Court expressly did not decide the issue" }, { "docid": "21082882", "title": "", "text": "act prior to the amendment, in that it covers not only corporations, which are insolvent, but also .those, which are merely unable to meet their maturing obligations; and the question arises whether the new section may be interpreted to apply to a dissolved corporation which is insolvent in either sense of the word. The question was decided in the affirmative, so far as an insolvent corporation is concerned, in the case of In re 211 East Delaware Place Bldg. Corp. (D.C.) 7 F.Supp. 892, affirmed on appeal (C.C.A.) 76 F.(2d) 834, where it was held that a petition to reorganize under section 77B might be filed by a corporation although a receiver for it had been appointed by the state court in a proceeding to foreclose a mortgage covering its entire property, and it had been subsequently dissolved by order of the state court for failure to pay its franchise tax. In the subsequent reorganization proceedings it was held, (D.C.) 14 F. Supp. 96, that notwithstanding the decision in Duparquet, Huot & Moneuse Co. v. Evans, supra, the bankruptcy court had jurisdiction under section 77B because the corporation was totally insolvent and all of its property had been put into the hands of a receiver in the state court. Proceedings for reorganization of dissolved corporations were also sustained in Capital Endowment Co. v. Kroeger (C.C.A.) 86 F.(2d) 976, and In re Forty-One Thirty-Six Wilcox Bldg. Corp. (C.C.A.) 86 F. (2d) 667. See, also, Gerdes on Corporate Reorganization, vol. 1, § 54, pp. 167, 168; Remington on Bankruptcy (4th Ed.) 1936 Supp. § 100; Tondel Jr., Corporations Eligible for Relief under section 77B, 21 Minn.Law Review, 144, 159, January, 1937; Bird, Financial Associations under section 77B, 15 Texas Law Review, 65, 77, December, 1936. The only contrary holding, if it may be called such, is In re National Surety Company (D.C.) 7 F.Supp. 959, where it was held that an insurance company which had been dissolved so that its affairs were turned over for settlement to the Superintendent of Insurance of New York, who became vested with all of its property," }, { "docid": "13278458", "title": "", "text": "obtain relief under chapter 11 of the Code. In Chicago Title and Trust Co. v. Forty-One-Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937); In re Liberal Mack Sales, Inc. 24 B.R. 707, 9 BCD 1119 (Bkrtcy.D.Kan.1982); Matter of S & T Terry Contractors, Inc., 6 B.R. 84 (Bkrtcy.N.D.Ill.1980); In re Rust Control, 1 B.R. 303 (Bkrtcy.W.D.Va.1979); In re Heark Corp., 18 B.R. 557, 6 CBC 2d 440 (Bkrtcy.D.Md.1982). Under Vermont law, Fiberglass, as a corporation dissolved by the Secretary of State for failure to file an annual report, is under a statutory duty to wind up its business affairs and liquidate its assets. The relevant provisions of Vermont law are sections 2063 and 2056 of title 11, Vermont Statutes. Section 2063 provides: A corporation ... which fails to file an annual report ... shall cease to exist ... If the terminated corporation does not file an annual report within nine months of its termination ... the secretary of state shall issue a notice of revocation and the corporation shall begin a dissolution in the same manner as if the corporation had filed an intent to dissolve under section 2056 ... Under section 2063, Fiberglass ceased to exist prior to the date, September 25, 1981, that its charter was revoked. Fiberglass should have begun a dissolution as of the date it received the notice of revocation issued by the Secretary of State. Section 2056 describes the requirements of dissolution: (1) The corporation shall immediately cause notice thereof to be mailed to each known creditor of the corporation ... (2) The corporation shall proceed to collect its assets, convey and dispose of such of its properties as are not to be distributed in kind to its shareholders, pay, satisfy and discharge its liabilities and obligations or make adequate provision therefor and do all other acts required to liquidate its business and affairs, and, after paying or adequately providing for the payment of all its obligations, distribute the remainder of its assets, either in cash or in kind, among its shareholders according to their respective rights and" }, { "docid": "6888661", "title": "", "text": "faced with an involuntary petition filed by more than three entities with claims totalling over $5,000, the alleged debtor has stipulated that it generally is not paying its debts as they become due. CONCLUSIONS OF LAW A. Jurisdiction. In Chicago Title and Trust Co. v. Forty-One-Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937), the Supreme Court held that a dissolved corporation’s ability to avail itself of the bankruptcy laws depends on how the state in which it was incorporated defined its existence after dissolution. Construing Illinois law in 1937, the court stated dissolved corporations continued their capacity to collect debts, and sue and be sued for two years after dissolution. Forty-One-Thirty-Six Wilcox Bldg. Corp., however, did not attempt to file bankruptcy until five years after dissolution. Therefore, the Supreme Court held it no longer existed under state law and could not file bankruptcy. Chicago Title’s holding is limited in two respects. First, it involved a voluntary petition in bankruptcy, and the Supreme Court expressly did not decide the issue of involuntary bankruptcy proceedings brought against dissolved corporations. 302 U.S. at 124, 58 S.Ct. at 126. Other courts both before and after Chicago Title have held that involuntary petitions may be brought against a dissolved corporation that is still in existence. In Re 211 E. Dela. Place Bldg. Corp., 76 F.2d 834 (7th Cir.1935); In Re Luftek, 6 B.R. 539, 6 BCD 1083, 2 CBC2d 1351 (E.D.N.Y.1980). This is in accord with the Bankruptcy Code provisions providing that an involuntary chapter 7 petition can be filed against a “moneyed, business, or commercial corporation” if the corporation could have filed a voluntary chapter 7 petition. See 11 U.S.C. § 303(a), 109, 101(30), 101(8). Second, Chicago Title involved the existence of a dissolved corporation under Illinois law. Other courts have construed the law of states other than Illinois and have held that dissolved corporations can file bankruptcy petitions. The various dissolution statutes generally give the dissolved corporation the power to wind up its affairs, and sue or be sued. For example, in Mosaic Tile Co. v. State" }, { "docid": "10143891", "title": "", "text": "withdrawn from the partnership. Cabral’s withdrawal, and the forced dissolution of the partnership which it precipitated, has become the central issue of the litigation. The bankruptcy court dismissed C-TC’s petition as a matter of law for the reason that CTC, as a dissolved partnership, was not eligible for reorganization and could not implement a Chapter 11 reorganization. As the bankruptcy court held, 11 U.S.C. § 109(d) places some limitations on the categories of entities eligible for Chapter 11 reorganization. This statute provides that “[o]nly a person that may be a debtor under chapter 7 ... may be a debtor under chapter 11 of this title.” The bankruptcy court determined that the threshold issue was thus whether CTC, as a partnership in dissolution, was a “person” within the meaning of the bankruptcy code. The definition of a partnership, which is not defined in the bankruptcy code, is a matter of nonbankruptcy law. See Chicago Title & Trust Co. v. 4136 Wilcox Bldg. Corp., 302 U.S. 120, 128-29, 58 S.Ct. 125, 128-29, 82 L.Ed. 147 (1937). In New York a partnership is composed of two or more persons acting as partners. Thus, under New York law, the withdrawal of Richard Cabral, one of C-TC’s two partners, dissolved the partnership. But a dissolved partnership is allowed to “continue[ ] until the winding up of the partnership affairs is completed.” N.Y. Partnership Law § 61 (McKinney 1996). This raises the question of the meaning of “continue.” In Pastor v. State Tax Comm’n, 115 A.D.2d 144, 146, 495 N.Y.S.2d 515 (N.Y.App.Div.1985), the Appellate Division held that § 61 of the New York Partnership Law operates not to “prolong the life of an otherwise unviable entity” but only to allow continuation of the partners’ liability for debts of the partnership. Based on this interpretation, the bankruptcy court found that “the Debtor’s restricted capacity as a partnership in dissolution under New York law is inconsistent with the Debtor’s stated objective in Chapter 11 of obtaining a ‘fresh start.’ ” C-TC contends that the bankruptcy court disregarded the Supreme Court’s insistence that the plain meaning of the Bankruptcy" }, { "docid": "13278457", "title": "", "text": "11 “for cause”. The section lists several examples of “cause”. The listed grounds are nonexclusive. In re Kors, Inc., 13 B.R. 676, 5 CBC 2d 190 (Bkrtcy.D.Vt.1981); In re Alton Tel. Printing Co., 14 B.R. 238, 5 CBC 2d 236, 8 BCD 457 (Bkrtcy.S.D.Ill.1981); In re Lamar Estates, Inc., 6 B.R. 933 (Bkrtcy.E.D.N.Y.1980). Matter of Northwest Recreational Activities, Inc., 4 B.R. 36, 1 CBC 2d 713, 6 BCD 164 (Bkrtcy.N.D.Ga.1980). The totality of the facts will determine whether Fiberglass may obtain the continuing protection of the court, Matter of Levinsky, 23 B.R. 210 (Bkrtcy.E.D.N.Y.1982); In re McLaury, 25 B.R. 30 (Bkrtcy.N.D.Tex. 1982); Matter of Horizon Hospital, Inc., 10 B.R. 672, 7 BCD 682 (Bkrtcy.M.D.Fla.1981); Matter of Nancant, Inc., 8 B.R. 1005, 7 BCD 410 (Bkrtcy.D.Mass.1981), and the court has wide discretion to make an appropriate disposition under section 1112(b). House Report No. 95-595, 95th Cong., 1st Sess. 405 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. The court should look to state law to resolve the issue of whether Fiberglass, as a dissolved corporation, may obtain relief under chapter 11 of the Code. In Chicago Title and Trust Co. v. Forty-One-Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147 (1937); In re Liberal Mack Sales, Inc. 24 B.R. 707, 9 BCD 1119 (Bkrtcy.D.Kan.1982); Matter of S & T Terry Contractors, Inc., 6 B.R. 84 (Bkrtcy.N.D.Ill.1980); In re Rust Control, 1 B.R. 303 (Bkrtcy.W.D.Va.1979); In re Heark Corp., 18 B.R. 557, 6 CBC 2d 440 (Bkrtcy.D.Md.1982). Under Vermont law, Fiberglass, as a corporation dissolved by the Secretary of State for failure to file an annual report, is under a statutory duty to wind up its business affairs and liquidate its assets. The relevant provisions of Vermont law are sections 2063 and 2056 of title 11, Vermont Statutes. Section 2063 provides: A corporation ... which fails to file an annual report ... shall cease to exist ... If the terminated corporation does not file an annual report within nine months of its termination ... the secretary of state shall issue a notice of revocation and the corporation shall" }, { "docid": "2208825", "title": "", "text": "allowed by Kentucky law for the winding up of its business, acquired the title to and became the owners of the judgment which they now seek to enforce. Defendant’s contention that the same limitation period which controlled Imperial’s capacity to sue is also applicable to the stockholders would, if accepted, lead to the anomalous result of creating a bar to the capacity of the stockholders to sue at the same time they acquired title to and became vested with the ownership of the judgment. In other words, the stockholders of Imperial under this theory acquired a right which they could not from the beginning enforce. Defendant in support of his thesis that “state’s laws of limitation must be construed in determining the capacity of the surviving stockholders to sue,” cites Craftsman Finance Mortgage Co., Inc. v. Brown, D.C., 64 F.Supp. 168, and Chicago Title and Trust Co. v. Forty-one Thirty-six Wilcox Bldg. Corp., 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147. These and other like cases which could be cited involve in one form or another derivative actions by stockholders seeking some claim or right for and on behalf of a dissolved corporation. The Wilcox case is illustrative, wherein former stockholders of a corporation which had been dissolved in accordance with the law of Illinois sought its reorganization under Section 77, sub. b of the Bankruptcy Act, 11 U.S. C.A. § 205, sub. b. The court held the proceeding could not be maintained on the basis that the corporation had previously become extinct under procedure prescribed by the law of the state which was controlling. There is great contrast, however, between those cases and the one at bar wherein plaintiffs seek nothing for and on behalf of a corporation now extinct of which they were former stockholders but seek a recovery upon a vested interest which they0acquired by operation of law. In fact, this action was not brought by plaintiffs in their capacity as former stockholders of Imperial, as defendant in his brief so often states. The suit was brought in their individual capacity, and their status as former" }, { "docid": "9686626", "title": "", "text": "forfeiture provision of the 1935 act was merely a revenue measure, and the state could provide by statute for reinstatement of the corporation, upon its payment of the delinquent taxes, denied the motion to vacate the adjudication, and also the motion to dismiss the petition. This appeal challenges that order. By it appellants seek to maintain: (1) That a court of bankruptcy may not take jurisdiction of the assets of a dissolved corporation, to administer them in bankruptcy; (2) that whatever the case generally as to the jurisdiction of a court of bankruptcy over dissolved corporations, where that jurisdiction has been invoked by creditors in involuntary proceedings, Hammond v. Lyon Realty Co., 4 Cir., 59 F.2d 592, jurisdiction was not properly exercised here, because the corporation having been destroyed and the administration of its affairs having been vested in its trustees, those who attempted to file the petition as the act of the corporation were without authority to do so, In re 211 East Delaware Place Bldg. Corp., D.C., 14 F.Supp. 96; cf. Chicago Title & Trust Co. v. Wilcox Bldg. Corp., 302 U.S. 120, at page 127, 58 S.Ct. 125, 128, 82 L.Ed. —; (3) if after the dissolution the corporation could have been revived under the 1937 act, this could have been done only by the trustees or the stockholders as a whole, and not, as was done here, by one of the trustees, the president of the company, and there was therefore not only no authority in those who authorized the filing of'the voluntary petition to act for it, but there was no effective revival of the corporate life, and no corporation in existence to be adjudicated. Appellees stand upon compliance with the revival act of 1937 as conclusively established by the receipt and certificate of the Secretary of State. They insist that the payment of and acceptance by the state of the delinquent taxes, evidenced by the issuance of the statutory receipt has, as between the company and the state, fully revived the corporate life ab initio as of the dissolution' in September, with the result" }, { "docid": "7318651", "title": "", "text": "law. We know from Melrose Distillers, Inc. v. United States, 359 U.S. 271, 79 S.Ct. 763, 3 L.Ed.2d 800 (1959), that state law determines whether a dissolved corporation can be a defendant in a criminal antitrust prosecution; Canadian Ace Brewing Co. v. Joseph Schlitz Brewing Co., 629 F.2d 1183 (7th Cir.1980), holds the same about a civil antitrust case. So is there something specific to CERCLA that overrides Rule 17(b)? The class points to 42 U.S.C. § 9607(a), which says that CERCLA applies “notwithstanding any other provision or rule of law”. The context of this phrase shows, we held in Munster v. Sherwin-Williams Co., 27 F.3d 1268 (7th Cir.1994), that the notwithstanding clause refers only to substantive liability. It does not displace the many ancillary rules that influence how litigation proceeds— § 9607(a)(2) does not, for example, junk the rules of preclusion and allow a plaintiff to sue without regard to prior defeats, cf. Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320 (7th Cir.1992); it does not permit frivolous litigation, which Fed. R.Civ.P. 11 condemns; it does not permit a plaintiff to ignore a motion for summary judgment properly presented under Fed. R.Civ.P. 56; and it does not permit collection from a firm whose debts have been discharged in bankruptcy, see In re CMC Heartland Partners, 966 F.2d 1143 (7th Cir.1992); In re Chicago, Milwaukee, St. Paul & Pacific R.R., 3 F.3d 200 (7th Cir.1993). It follows that § 9607(a)(2) does not authorize litigation against a defunct corporation, any more than it permits litigation against a deceased person after the estate has been closed. Let us suppose that things are otherwise, that Rule 17(b) does not apply in actions under CERCLA. What federal law would apply? The common law rule is that all litigation by or against a dissolved corporation must be dismissed. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 125, 58 S.Ct. 125, 127, 82 L.Ed. 147 (1937); William Meade Fletcher, 8 Cyclopedia of the Law of Private Corporations §§ 5605, 5610 (1919). Chicago Title & Trust held that" }, { "docid": "18963944", "title": "", "text": "Humphreys, Inc. v. United States, 15 CIT 427, 427, 771 F.Supp. 1239, 1241 (1991), aff'd and adopted, 973 F.2d 1554 (Fed.Cir.1992). If the moving party fails to “establish that there was a fundamental or significant flaw in the conduct of the original proceedings,” this will result in the motion being denied: Brookside Veneers, Ltd. v. United States, 11 CIT 197, 199, 661 F.Supp. 620, 622 (1987), rev’d on other grounds, 6 Fed. Cir. (T) 121, 847 F.2d 786, cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988). . Equiflor claims- that the Court overlooked the critical issue in finding that Majui received service of Commerce’s questionnaire because the company had gone out-of business prior to the questionnaire being sent out. Equiflor supports its contention by (1) citing to Chicago Title & Trust Co. v. Forty-one Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 124-25, 58 S.Ct. 125, 82 L.Ed. 147 (1937)(noting that the dissolution of a corporation puts an end to its existence, the result of which may be likened to the death of a natural person), and (2) alleging that, under Colombian law, commercial entities lose all legal, status upon dissolution and liquidation and are therefore incapable of receiving service of documents, and can.only be the subject of legal proceedings that were initiated prior to the act of dissolution. Equiflor Mot. at 4. The issue in Title Co. Was whether a dissolved corporation itself could initiate legal proceedings after the two year post-dissolution period provided by Illinois law. 302 U.S. at 123-27, 58 S.Ct. 125. In contrast, here the administrative review was initiated by Commerce against the company eight months after it was dissolved. The Title Co. court expressed no opinion as to whether proceedings could be instituted against a dissolved corporation. Id. Thus, Title Co. is inapposite. Equiflor’s citations to the Colombian law are also not persuasive. The fact that Majui had “legally dissolved” under Colombian law is not dispositive with respect to Commerce’s determination that the company received the questionnaire. Rather, the question presented is whether Commerce’s conclusion that Majui received its questionnaire and subsequent" }, { "docid": "6888662", "title": "", "text": "of involuntary bankruptcy proceedings brought against dissolved corporations. 302 U.S. at 124, 58 S.Ct. at 126. Other courts both before and after Chicago Title have held that involuntary petitions may be brought against a dissolved corporation that is still in existence. In Re 211 E. Dela. Place Bldg. Corp., 76 F.2d 834 (7th Cir.1935); In Re Luftek, 6 B.R. 539, 6 BCD 1083, 2 CBC2d 1351 (E.D.N.Y.1980). This is in accord with the Bankruptcy Code provisions providing that an involuntary chapter 7 petition can be filed against a “moneyed, business, or commercial corporation” if the corporation could have filed a voluntary chapter 7 petition. See 11 U.S.C. § 303(a), 109, 101(30), 101(8). Second, Chicago Title involved the existence of a dissolved corporation under Illinois law. Other courts have construed the law of states other than Illinois and have held that dissolved corporations can file bankruptcy petitions. The various dissolution statutes generally give the dissolved corporation the power to wind up its affairs, and sue or be sued. For example, in Mosaic Tile Co. v. State Corp., 323 F.2d 274 (2nd Cir.1963), the Connecticut corporation statute had no time limit in which a dissolved corporation had to wind up its affairs. Therefore, although dissolved, the corporation still existed under Connecticut laws and was permitted to file a bankruptcy petition. In In Re International Sugar Feed Co., 23 F.Supp. 197 (D.Minn.1938), a dissolved Minnesota corporation had three years to wind up its affairs, and within those three years, it filed a bankruptcy petition. The court allowed the filing because the corporation still existed under Minnesota law. Accord, In Re Heark Corp., 18 B.R. 557 (D.Md.1982) (no time limit in Maryland in which dissolved corporations could sue or be sued and therefore corporation still existed when petition filed); In Re Rust Control, Inc., 1 B.R. 303 (W.D.Va.1979) (same, construing Virginia law); Old Fort Improvement Co. v. Lea, 89 F.2d 286 (4th Cir.1937) (same, construing South Carolina law). Two other cases have addressed the Chicago Title holding. In In Re Peer Manor Bldg. Corp., 134 F.2d 839 (7th Cir.1948), a similar Illinois dissolution statute" } ]

[ { "docid": "11129733", "title": "", "text": "pending motion and response is limited in scope. The parties agree that good-faith reliance upon an opinion of counsel is relevant to rebutting the claim of willful infringement. They further agree that assertion of the advice-ofeounsel defense operates as a waiver of otherwise applicable attorney-client privilege. The parties disagree, however, concerning the scope of the waiver. Steelcase advances an argument for a broad waiver, which would include not only communications between attorney and client, but also all documents relied upon by counsel in formulating the opinion. Furthermore, Steelcase asserts that any otherwise applicable work product privilege is also waived by assertion of the advice-of-counsel defense. By contrast, Ha-worth argues for a more narrow scope of waiver. Haworth contends that the waiver of privilege extends only to communications from and to counsel concerning the transaction for which counsel’s advice was sought. On this basis, Haworth has withheld from production (as reflected on Haworth’s Rule 26(b)(5) privilege log) numerous documents from counsel’s files and has redacted portions of the documents produced. The legal issue for this court, therefore, is the scope of waiver of the attorney-client privilege when an alleged willful patent infringer asserts advice-of-counsel as a defense. Because the substantive issues in this case are governed by federal patent law, all issues of privilege are governed by federal law as well. Fed.R.Evid. 501. Jurisdiction to determine appeals in this patent action is invested exclusively in the United States Court of Appeals for the Federal Circuit. 28 U.S.C. § 1295. The Federal Circuit has held, as a matter of policy, that discovery and other procedural issues not unique to patent cases should be decided pursuant to the law of the regional circuit where the district court sits. Panduit Carp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1574-75 (Fed.Cir.1984); accord Nike, Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 648 (Fed.Cir.1994). Questions involving the scope of waiver of the attorney-client privilege in patent cases where willful infringement is an issue would appear to be unique to patent litigation. Consequently, this court will be guided by the decisions of the Federal" } ]

[ { "docid": "23091868", "title": "", "text": "apply our own law, rather than the law of the regional circuit. This case involves the extent to which a party waives its attorney-client privilege and work-product immunity when it asserts the advice-of-counsel defense in response to a charge of willful patent infringement. “Federal Circuit law applies when deciding whether particular written or other materials are discoverable in a patent case, if those materials relate to an issue of substantive patent law.” Advanced Cardiovascular Sys. v. Medtronic, Inc., 265 F.3d 1294, 1307 (Fed.Cir.2001). A remedy for willful patent infringement is specifically provided for in the Patent Act, see 35 U.S.C. §§ 284-285; therefore, questions of privilege and discoverability that arise from assertion of the advice-of-counsel defense necessarily involve issues of substantive patent law, see In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 803-04 (Fed.Cir.2000) (applying Federal Circuit law to question of attorney-client privilege between patent attorney and patentee). A EchoStar first challenges the district court’s holding that EchoStar waived , the attorney-client privilege when it asserted its defense in response to the charge of willful infringement. The attorney-client privilege protects disclosure of communications between a client and his attorney. United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989); Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Once a party announces that it will rely on advice of counsel, for example, in response to an assertion of -willful infringement, the attorney-client privilege is waived. “The widely applied standard for determining the scope of a waiver of attorney-client privilege is that the waiver applies to all other communications relating to the same subject matter.” Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed.Cir.2005). EchoStar argues that it did not assert the advice-of-counsel defense because it intended to rely only on an “in-house investigation supervised by in-house counsel.” The district court held that the opinion formed by in-house counsel and conveyed to EchoStar executives, although not a traditional opinion of counsel, constituted a legal opinion. We see no. error in the district court’s determination. EchoStar" }, { "docid": "11780650", "title": "", "text": "cf. Ortho Pharmaceutical Corp., 959 F.2d at 944 (“Counsel’s opinion must be thorough enough ... to instill a belief in the infringer that a court might reasonably hold the patent is invalid, not infringed or unenforceable.” (emphasis added)). Indeed, in McCormick-Morgan, Inc. v. Teledyne Industries, Inc., 134 F.R.D. 275 (N.D.Cal.1991), a case cited by both parties in the present case, the Court specifically denied the alleged infringer’s request to limit “the subject matter scope of its waiver [to] only those specific potential bases for challenging validity or enforceability that [were] the subjects of communications the alleged infringer already had disclosed.” McCormick-Morgan, 134 F.R.D. at 280, on reconsideration, 765 F.Supp. 611, 613 (N.D.Cal.1991) (affirming uncontested portion of Court’s Order regarding subject matter scope of waiver, but reversing on portion of Order concerning temporal scope of waiver). Although the Court noted that the alleged infringer made an explicit waiver, the Court also held that limiting the scope of the waiver as narrow as the alleged infringer had requested would be inconsistent with the case law. Id. Similarly, in Mushroom Associates v. Monterey Mushrooms, Inc., the plaintiff argued that the defendants had waived all attorney-client privilege and work product immunity for documents pertaining to the issue of infringement of the plaintiffs patent by invoking the advice of counsel defense. Mushroom Assoc., 1992 WL 442892, at *1. The defendants urged the Court to define the scope of the waiver more narrowly, such that the scope of the waiver only extended to “willful infringement.” Id. The Court stated: If the defendants’ definition of the scope of willful infringement is simply the September 8, 1989 letter [reflecting the advice of counsel], then the defendants have narrowed the scope too far____ This court finds that the defendants have waived the attorney-client privilege with respect to all documents pertaining to the infringement of the [plaintiffs] patent. Id. at *4 (emphasis added). In the present case, where DuPont Dow requested that counsel provide an assessment on the validity of the ‘107 patent, and DuPont Dow subsequently asserted its reliance upon that opinion of counsel as a defense to plaintiffs" }, { "docid": "9904020", "title": "", "text": "produced to Chiron as a result of the purposeful waiver. Discussion A. The Advice of Counsel Defense in Patent Litigations The extent of waiver of attorney-client and work product materials can only be understood by reviewing the parameters of the advice of counsel defense. If a patentee asserts that a competitor willfully infringed its patent, the competitor may avoid the extraordinary sanctions of a willful infringement by reliance on its counsel’s advice. However, the reliance of the competitor must be reasonable and in good faith. “A critical factor in evaluating the effect of an opinion of counsel on willfulness is the reasonableness of a party’s reliance thereon.” Stryker Corp. v. Davol Inc., 234 F.3d 1252 (Fed.Cir.2000) quoting Graco Inc. v. Binks Mfg. Co., 60 F.3d 785, 793 (Fed.Cir.1995). Thus, the focus of the defense is the state of mind of the competitor-client and not the attorney’s state of mind. While it is true that the legal correctness per se of the opinion will not be at issue in the defense, “ ‘[Counsel’s opinion must be thorough enough, as combined with other factors, to instill a belief in the infringer that a court might reasonably hold the patent is invalid or unenforceable.’ ” Graco, 60 F.3d at 793 (emphasis added by the Graco court). Reasonableness is not analyzed without taking into account the circumstances of the client— the more sophisticated the client, the more stringent the duty of inquiry on the part of the client. That is, reasonableness from the standpoint of an individual lay business person may be different from that of the client comprised, in part, of sophisticated patent attorneys. Eli Lilly & Co. v. Zenith Pharm. Inc., 2001 WL 1397304 *25 (S.D.Ind.2001) (basing the reasonableness inquiry, in part, on the sophistication of the client). B. General Principles of Waiver of Attorney-Client and Work Product Information When Asserting an Advice of Counsel Defense As observed in previous opinions, the district court in a patent litigation shall apply Federal Circuit law when resolving discovery issues that occur in the unique context of patent litigation. However, the advice of counsel defense" }, { "docid": "23091871", "title": "", "text": "asserts that the district court’s order cast too wide a net by including within the waiver’s scope. documents that were never communicated from Merchant & Gould (the attorney) to EchoStar (the client). The district court stated: EchoStar had the benefit of choice, as explained by the Federal Circuit in Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., of whether to introduce [in-house counsel’s] opinion. But once EchoStar chose to introduce the opinion, it opened to inspection all related advice sought and developed regarding EchoStar’s potential infringement of the ’389 patent. Regardless of when the opinions or materials were transcribed or communicated to EchoStar, such information necessarily relates to the opinion being offered by [in-house counsel] and goes to show EchoStar’s state of mind with respect to willful infringement. This is particularly true where, as is the case here, Ech-oStar’s willfulness witness was privy to the substance of the willfulness opinions developed by outside counsel both pre- and post-filing.... TiVo, Inc. v. EchoStar Comm. Corp., No. 2:04-CV-1, at 13 (E.D.Tex. Sept. 26, 2005) (“September Order”). Noting that district courts had ruled differently on whether the waiver of work-product protection covered documents that were not disclosed to the client, the district court discussed the reasons for requiring production of uncom-municated work product: Still, other courts have mandated production of all material regardless of whether they were disclosed, maintaining that the discovery of such information is necessary to uncover what the client was actually told by opinion counsel. See Aspex Eyewear Inc. v. E’Lite Optik Inc., 276 F.Supp.2d 1084, 1092-93 (D.Nev.2003); Novartis Pharms. Corp. v. EON Labs Mfg., Inc., 206 F.R.D. 396 (D.Del.2002). In Novartis, the court stated, “it is critical for the patentee to have a full opportunity to probe, not only the state of mind of the infringer, but also the mind of the infringer’s lawyer upon which the infringer so firmly relied.” Id. at 399. The rationale behind this approach is that, by imposing broad waiver, the advice of counsel defense will only be invoked by “infringers who prudently and sincerely sought competent advice from competent counsel ... ” and" }, { "docid": "15185751", "title": "", "text": "need for discovery in litigation generally. See, e.g., Carl Zeiss Jena GmbH, and Carl Zeiss, Inc. v. Bio-Rad Laboratories, Inc., 2000 WL 1006371 (S.D.N.Y.2000); Fonar Corp. v. Johnson & Johnson, 227 USPQ 886, 3 Fed. R. Serv.3d 145 (D.Mass.1985); Chiron Corp. v. Genentech, 179 F.Supp.2d 1182 (E.D.Ca.2001); Mushroom Assoc. v. Monterey Mushrooms, Inc., 1992 WL 442892 (N.D.Ca.1992); Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 192 USPQ 316 (N.D.Ca.1976). Another line of cases criticizes this approach for failing to recognize Federal Circuit authority on the substantive patent law of willful infringement, and holds that the waiver does not extend to attorney work-product or documents upon which an attorney relied, unless they were disclosed to the client. See, e.g., Steelcase v. Haworth, 954 F.Supp. 1195, 43 USPQ2d 1041 (W.D.Mich.1997); Thorn EMI N. Am., Inc. v. Micron Tech., Inc., 837 F.Supp. 616, 29 USPQ2d 1872 (1993). The court finds the former line of cases more persuasive. The Federal Circuit has held that discovery and other procedural issues not unique to patent cases should be decided pursuant to the law of the regional circuit where the district court sits. Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1574-75 (Fed.Cir.1984); Nike, Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 648 (Fed.Cir.1994). Although the defense of rebanee on advice of counsel to an allegation of willful infringement is an issue that appears unique to patent litigation, rebanee on the advice of counsel defense, in general, is not. “Few areas of privilege law have been as extensively litigated of late as the question of whether a waiver has occurred by virtue of an affirmative reliance on privileged material.” Epstein, The Attorney-Client Privilege and the Workr-Product Doctrine, page 343, Fourth Edition, pubbshed by the American Bar Association, Section of Litigation, 2001. There are many contexts in which the courts have held a party waives the attorney-cbent privilege by affirmatively relying on the advice of counsel to support a claim or defense. See, e.g., Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 615 (2nd Cir.1964), cert denied, 380 U.S. 248, 85 S.Ct." }, { "docid": "23091872", "title": "", "text": "that district courts had ruled differently on whether the waiver of work-product protection covered documents that were not disclosed to the client, the district court discussed the reasons for requiring production of uncom-municated work product: Still, other courts have mandated production of all material regardless of whether they were disclosed, maintaining that the discovery of such information is necessary to uncover what the client was actually told by opinion counsel. See Aspex Eyewear Inc. v. E’Lite Optik Inc., 276 F.Supp.2d 1084, 1092-93 (D.Nev.2003); Novartis Pharms. Corp. v. EON Labs Mfg., Inc., 206 F.R.D. 396 (D.Del.2002). In Novartis, the court stated, “it is critical for the patentee to have a full opportunity to probe, not only the state of mind of the infringer, but also the mind of the infringer’s lawyer upon which the infringer so firmly relied.” Id. at 399. The rationale behind this approach is that, by imposing broad waiver, the advice of counsel defense will only be invoked by “infringers who prudently and sincerely sought competent advice from competent counsel ... ” and “[m]oreover, focusing on the infringer’s waiver rather than state of mind may reduce the chances of legal gamesmanship creeping into the practice of rendering infringement and validity opinions.” Id. “[I]f negative information was important enough to reduce to a memorandum, there is a reasonable possibility that the information was conveyed in some form or fashion to the client.” Beneficial Franchise Co. Inc. v. Bank One N.A., 205 F.R.D. 212, 218 (N.D.Ill.2001). September Order at 11-12. In a subsequent order, the district court further explained why the scope of the waiver should include work product that was not disclosed to EchoStar: Were discovery of “uncommunicated” materials not allowed, accused infringers could easily shield themselves from any unfavorable analysis by simply requesting that their opinion - counsel not send it. This would be unfair. TiVo, Inc. v. EchoStar Comm. Corp., No. 2:04-CV-1, 2005 WL 3024701 at 3 (E.D.Tex. Oct. 7, 2005) (“October Order”). We review the district court’s determination as to the scope of the waiver for an abuse of discretion. In re Pioneer, 238 F.3d at" }, { "docid": "15185734", "title": "", "text": "E’Lite defends the willfulness allegation by asserting that it believed in good faith that it did not infringe the patents and has elected to rely on the opinions of counsel to support this defense. E’Lite has designated its former trial counsel in this case, Attorney Robert Mason, and Mr. John Fischer, a patent attorney who gave E’Lite a written opinion on the Patents-in-suit after the lawsuit was filed, as expert witnesses to support this defense. This dispute involves the extent of the waiver of the attorney-client privilege and work-product immunity in the context of reliance on legal advice as a defense to willfulness. In the current motion Aspex seeks to compel further responses to Request for Production of Document Nos. 5, 10, 11, 14, 17, 19 and 20, to which objections of privilege have been asserted by E’Lite. Aspex also seeks to compel compliance with a subpoena duces tecum served on Attorney Robert Mason prior to his deposition and to compel Mr. Mason to sit for a second session of his deposition, and respond to questions to which privi lege objections and instructions not to answer were given. The parties agree that E’Lite’s reliance on the opinion of counsel as a defense to the allegation of willful infringement results in the waiver of both the attorney-client privilege and work-product doctrine concerning communications and work-product related to the issues of infringement, validity, and enforceability of As-pex’s patents. They dispute the scope of the waiver. Plaintiffs assert that by relying on the advice of counsel defense defendant has waived all attorney-client and work-product privileges concerning all documents in defendant’s possession that relate to the subjects of validity, enforceability and infringement of the Patents-in-suit. Plaintiffs argue this extends to any communications between Mr. Mason and Mr. Fisher, and defendant regarding the subject matter of the Patents-in-suit and all documents relied upon, or work-product created by Mason and Fisher in preparing their opinions. E’Lite argues that the defendant’s state of mind, rather than the attorneys’ state of mind, is the relevant issue in a defense to an allegation of willful infringement, and that the" }, { "docid": "6589069", "title": "", "text": "that information referring to attorney-client communications involving the ’234 patent is shielded from discovery simply because it is in files associated with foreign counterparts. Any such privileged documents must be turned over to Rhodia. To the extent there is an arguable basis for asserting that a document pertaining to the ’234 patent is not subject to discovery, it must be appropriately logged. {See infra at 12.) Similarly, if information pertaining to the '234 patent is contained in opinions or other communications on related U.S. patents and U.S. patent applications, those communications must be turned over or, if a basis for privilege remains, logged. The scope of waiver \"is defined by the subject matter discussed” in the communications regarding the ’234 patent. See Allergan Inc. v. Pharmacia Corp., 2002 WL 1268047 at *2 (D.Del. May 17, 2002). . There is some question of whether the scope of waiver effected by reliance on an advice-of-counsel defense is a matter to be governed by Federal Circuit or regional circuit case law. Compare Aspex Eyewear, Inc. v. E’Lite Optik, Inc., 276 F.Supp.2d 1084, 1092-93 (D.Nev.2003) (regional circuit law controls) with Steelcase, Inc. v. Haworth, Inc., 954 F.Supp. 1195, 1197-98 (W.D.Mich.1997) (Federal Circuit law controls). The better reasoned approach recognizes that questions of waiver are not unique to patent law and are a matter of either state law, as to claims and defenses that arise under state law, or precedent from the regional circuits. See Aspex, 276 F.Supp.2d at 1092-93 (“Although the defense of reliance on advice of counsel to an allegation of willful infringement is an issue that appears unique to patent litigation, reliance on the advice of counsel defense, in general, is not.”); cf. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir.1994) (\"As the claims and defenses ... arise under state law, Federal Rules of Evidence 501 and 1101(c) provide that we should apply state law in determining the extent and scope of the attorney-client privilege.”) . This, of course, is not to say that there will never be circumstances that may warrant an abrogation of the work" }, { "docid": "15185750", "title": "", "text": "have resolved disputes over the scope of the waiver differently. Plaintiffs’ arguments favoring a broad finding of waiver focus on the need to know the underpinnings of the advice received and what it was based upon in order to test the adequacy and competency of the advice rendered, and the reasonableness of E’Lite’s reliance on that advice. Defendant urges the court to find a narrow waiver and focuses its arguments on the principle of patent law that the determination of whether infringement is willful is, by definition, a question of the infringer’s intent. Therefore, defendant emphasizes that, if E’Lite was not privy to the information, it is not relevant or probative of E’Lite’s state of mind. There is a split of authority among the cases that have addressed the scope of the waiver of the attorney-client privilege and work-produce immunity in the context of the defense of reasonable reliance on advice of counsel to an allegation of willful infringement. One line of cases take an expansive view of the scope of a waiver analyzing the need for discovery in litigation generally. See, e.g., Carl Zeiss Jena GmbH, and Carl Zeiss, Inc. v. Bio-Rad Laboratories, Inc., 2000 WL 1006371 (S.D.N.Y.2000); Fonar Corp. v. Johnson & Johnson, 227 USPQ 886, 3 Fed. R. Serv.3d 145 (D.Mass.1985); Chiron Corp. v. Genentech, 179 F.Supp.2d 1182 (E.D.Ca.2001); Mushroom Assoc. v. Monterey Mushrooms, Inc., 1992 WL 442892 (N.D.Ca.1992); Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 192 USPQ 316 (N.D.Ca.1976). Another line of cases criticizes this approach for failing to recognize Federal Circuit authority on the substantive patent law of willful infringement, and holds that the waiver does not extend to attorney work-product or documents upon which an attorney relied, unless they were disclosed to the client. See, e.g., Steelcase v. Haworth, 954 F.Supp. 1195, 43 USPQ2d 1041 (W.D.Mich.1997); Thorn EMI N. Am., Inc. v. Micron Tech., Inc., 837 F.Supp. 616, 29 USPQ2d 1872 (1993). The court finds the former line of cases more persuasive. The Federal Circuit has held that discovery and other procedural issues not unique to patent cases should be decided pursuant" }, { "docid": "15185752", "title": "", "text": "to the law of the regional circuit where the district court sits. Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1574-75 (Fed.Cir.1984); Nike, Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 648 (Fed.Cir.1994). Although the defense of rebanee on advice of counsel to an allegation of willful infringement is an issue that appears unique to patent litigation, rebanee on the advice of counsel defense, in general, is not. “Few areas of privilege law have been as extensively litigated of late as the question of whether a waiver has occurred by virtue of an affirmative reliance on privileged material.” Epstein, The Attorney-Client Privilege and the Workr-Product Doctrine, page 343, Fourth Edition, pubbshed by the American Bar Association, Section of Litigation, 2001. There are many contexts in which the courts have held a party waives the attorney-cbent privilege by affirmatively relying on the advice of counsel to support a claim or defense. See, e.g., Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 615 (2nd Cir.1964), cert denied, 380 U.S. 248, 85 S.Ct. 934, 13 L.Ed.2d 817 (1965) (attorney client privilege waived where the advice of counsel defense raised in an antitrust case and attorney had submitted an affidavit to the Civil Aeronautics Board); Livingstone v. North Belle Vernon Boro., 91 F.3d 515, 537 (3rd Cir.1996) (civil rights plaintiff who asserted she relied on advice of counsel in waiving the right to sue put advice of counsel in issue and waived privilege); United States v. Amlani, 169 F.3d 1189, 1195-96 (9th Cir.1999) (client asserting he discharged attorney for certain reasons cannot invoke the attorney-cbent privilege to deny government counsel access to the information needed to refute claim); Tsai-Son Nguyen v. Excel Corp., 197 F.3d 200 (5th Cir.1999) (executive deponents claiming during deposition that they relied on advice of counsel to substantiate good faith defense to violation of federal law waived attorney-cbent privilege, and opposing counsel could depose the attorneys on whose advice deponents testified they rebed); Johnson v. Rauland-Borg Corp., 961 F.Supp. 208, 211 (N.D.Ill. 1997) (employer who asserted it acted reasonably by employing outside attorney to investigate" }, { "docid": "6589050", "title": "", "text": "received regarding the ’234 patent extends to advice PPG received regarding foreign counterparts to the ’234 patent, and, second, if so, whether it encompasses attorney work product that was never provided to PPG. In few, if any, areas of the law has the tail taken to wagging the dog as vigorously as in the privilege waiver disputes endemic to patent infringement cases. Defendants often rely upon an advice-of-counsel defense when confronting the threat of enhanced damages for willful infringement. The consequent waiver of privileges and protections that the advice-of-eounsel defense entails, however, is now the basis of innumerable disputes like the one at bar, distracting the court and the parties from addressing the fundamental questions of infringement and validity. It seems that a whole subspecialty of opinion practice has developed as part of infringement defense strategy. Litigation resources are heavily invested in delaying the moment when an accused infringer must choose between relying on advice of counsel or maintaining typical privileges, or in seeking bifurcation on the issue of \"willfulness, or in trying to control the scope of waiver, once the advice-of-counsel route is taken. A. Waiver as to Foreign Counterparts The scope of waiver is a particularly frequent point of contention. In this case, however, Rhodia has put an unusual spin on the issue. Rhodia asserts not only the more common claim that the waiver encompasses both attorney-client privileged material and information subject to work product protection, but also that the waiver extends beyond the patent in suit to foreign counterparts. According to Rhodia, the “[wjaiver of privilege with respect to one U.S. patent may extend to other closely-related U.S. patents!!,]” because information by the alleged, infringer about the related patents “may be inconsistent with information obtained about the primary patent[J” and the alleged infringer’s reaction to that inconsistent information “is relevant to the potential infringer’s state of mind and good faith reliance on opinion of counsel.” (D.I. 180 at 4; citing Viskase Corp. v. American Nat'l Can Co., 888 F.Supp. 899 (N.D.Ill.1995).) Rhodia then extends that proposition by asserting that the same logic “applies with equal force to" }, { "docid": "6589053", "title": "", "text": "U.S. patent, and I decline to provide the first. B. Waiver as to Work Product Having determined that the scope of waiver does not extend to privileged information regarding foreign counterpart patents, addressing the second sub-issue raised by Rhodia’s scope-of-waiver argument, i.e., whether PPG’s waiver encompasses both the attorney-client privilege and work product protection, would appear superfluous. However, because Rhodia continues to assert that it is entitled to further explore the work product of PPG’s counsel, I will venture into the conflicting precedent that has grown up around the issue. District courts have taken a variety of approaches to determining the scope of the waiver inherent in an advice-of-counsel defense. Within this district alone at least three different approaches have developed. In Thom EMI North America, Inc. v. Micron Technology, 837 F.Supp. 616 (D.Del. 1993), the court held that the underlying rationale for requiring a waiver of the attorney-client privilege by an accused infringer relying on an advice-of-eounsel defense is that the patentee is entitled to explore the mind set of the accused infringer. Id. at 621 (“Documents and testimony relating to that advice are relevant in that they are probative of the alleged infringer’s intent.”). The court went on to state, however, that the same rationale does not justify expanding the scope of the waiver to encompass the work product associated with counsel’s advice if that work product was never communicated to the client. Id. at 622 (“Counsel’s mental impressions, conclusions, opinions, or legal theories are not probative of [the client’s] ... state of mind unless they have been communicated to that client.”). Accordingly, the court held that reliance on advice of counsel as a defense to a charge of willful infringement did effect a waiver of the attorney-client privilege but not of the protection typically afforded an attorney’s work product. Stating that “there is no such thing as a ‘law of the district!,]’ ” another judge within this district declined to follow the Thorn case. Mosel Vitelic Corp. v. Micron Technology, Inc., 162 F.Supp.2d 307, 311 (D.Del. 2000) (quoting Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366," }, { "docid": "9904019", "title": "", "text": "prior opinion letter issued by the law firm of Lyon & Lyon. Id. at p. 1. Genentech advanced an advice of counsel defense in the ’561 case. Chiron claims that Genentech thereby waived privilege and work product immunity not only with respect to the letters themselves, but also including a multitude of related documents. Categorically, Chiron seeks all documents “that are directly related to the Knobbe opinions,” “that relate to other legal advice it received on the subject matter addressed in the Knobbe opinions,” including those documents related to Gen-entech’s prosecution of the Drebin/Greene Application and “its prosecution of a series of Genentech patents relating to Hercep-tin.” Genentech takes a much narrower view of the scope of waiver occasioned by assertion of the advice of counsel defense. Aside from copies of the opinions themselves, it asserts that “all materials actually communicated to it from [Knobbe] that pertain to the relevant subject matter, and all internal [Genentech] documents referring to the 2000 Opinion or analyzing the ’561 patent,” are the total of documents required to be produced to Chiron as a result of the purposeful waiver. Discussion A. The Advice of Counsel Defense in Patent Litigations The extent of waiver of attorney-client and work product materials can only be understood by reviewing the parameters of the advice of counsel defense. If a patentee asserts that a competitor willfully infringed its patent, the competitor may avoid the extraordinary sanctions of a willful infringement by reliance on its counsel’s advice. However, the reliance of the competitor must be reasonable and in good faith. “A critical factor in evaluating the effect of an opinion of counsel on willfulness is the reasonableness of a party’s reliance thereon.” Stryker Corp. v. Davol Inc., 234 F.3d 1252 (Fed.Cir.2000) quoting Graco Inc. v. Binks Mfg. Co., 60 F.3d 785, 793 (Fed.Cir.1995). Thus, the focus of the defense is the state of mind of the competitor-client and not the attorney’s state of mind. While it is true that the legal correctness per se of the opinion will not be at issue in the defense, “ ‘[Counsel’s opinion must be" }, { "docid": "15185749", "title": "", "text": "Corp. v. Portec. Inc., 970 F.2d 816, 829, 23 USPQ2d 1426 (Fed.Cir.1992); Ortho Pharm. Corp. 959 F.2d at 944-45, 22 USPQ2d 1119; Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, 976 F.2d 1559, 1580-81, 24 USPQ2d 1321 (Fed.Cir.1992); Uniroyal Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1546-47, 19 USPQ2d 1432 (Fed.Cir.1991). IY. Reliance on the Advice of Counsel Defense and Waiver The parties acknowledge that when an accused infringer relies on the advice of counsel defense the accused in-fringer waives the attorney-client privilege and work-product immunity on the subject matter of the defense. The parties dispute the scope of that waiver. A District Court in patent litigation should apply Federal Circuit law in resolving discovery issues that occur in the unique context of patent litigation. Chiron Corp. v. Genentech, Inc., 179 F.Supp.2d 1182, 1185-86 (E.D.Ca.2001). However, the Federal Circuit has not decided the scope of the waiver of the attorney-client privilege and work-product immunity in a discovery dispute where reliance of counsel is asserted as a defense to willfulness, and the district courts have resolved disputes over the scope of the waiver differently. Plaintiffs’ arguments favoring a broad finding of waiver focus on the need to know the underpinnings of the advice received and what it was based upon in order to test the adequacy and competency of the advice rendered, and the reasonableness of E’Lite’s reliance on that advice. Defendant urges the court to find a narrow waiver and focuses its arguments on the principle of patent law that the determination of whether infringement is willful is, by definition, a question of the infringer’s intent. Therefore, defendant emphasizes that, if E’Lite was not privy to the information, it is not relevant or probative of E’Lite’s state of mind. There is a split of authority among the cases that have addressed the scope of the waiver of the attorney-client privilege and work-produce immunity in the context of the defense of reasonable reliance on advice of counsel to an allegation of willful infringement. One line of cases take an expansive view of the scope of a waiver analyzing the" }, { "docid": "6589070", "title": "", "text": "Inc., 276 F.Supp.2d 1084, 1092-93 (D.Nev.2003) (regional circuit law controls) with Steelcase, Inc. v. Haworth, Inc., 954 F.Supp. 1195, 1197-98 (W.D.Mich.1997) (Federal Circuit law controls). The better reasoned approach recognizes that questions of waiver are not unique to patent law and are a matter of either state law, as to claims and defenses that arise under state law, or precedent from the regional circuits. See Aspex, 276 F.Supp.2d at 1092-93 (“Although the defense of reliance on advice of counsel to an allegation of willful infringement is an issue that appears unique to patent litigation, reliance on the advice of counsel defense, in general, is not.”); cf. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir.1994) (\"As the claims and defenses ... arise under state law, Federal Rules of Evidence 501 and 1101(c) provide that we should apply state law in determining the extent and scope of the attorney-client privilege.”) . This, of course, is not to say that there will never be circumstances that may warrant an abrogation of the work product protection. Cf. Eco Manufacturing LLC v. Honeywell Internat’l, Inc., No. 1:03-cv-0170-DFH, 2003 WL 1888988 at *5 n. 2 (S.D.Ind. Apr. 11, 2003) (citing determination in Michlin v. Canon, Inc., 208 F.R.D. 172, 173-74 (E.D.Mich.2002) that work product was properly subject to discovery because counsel had been \"less than forthcoming with the court”); Cytyc Corp. v. Autocyte, Inc., C.A. No. 99-610-SLR, Mem. Order at 2-3 (D.Del. Sept. 13, 2000) (client's decision to engage as trial counsel the same counsel who rendered opinions warranted broadening scope of waiver). . To the extent such materials have already been provided to Rhodia, the court will not try to \"unring the bell.” They are now subject to appropriate use in this case. . The costs associated with searching for documents over such an extended period are open to further discussion. It may be that some cost sharing is warranted. Cf. Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 287-91 (S.D.N.Y. 2003) (discussing in context of electronic discovery factors to be considered in determining whether cost-shifting is appropriate). . PPG" }, { "docid": "2240756", "title": "", "text": "privileged information.”) (citing In re von Bulow, 828 F.2d 94, 101 (2d Cir.1987); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 486 (3d Cir.1995)) (“There is an inherent risk in permitting the party asserting a defense of its reliance on advice of counsel to define the parameters of the waiver of the attorney-client privilege as to that advice. That party should not be permitted to define selectively the subject matter of the advice of counsel on which it relied in order to limit the scope of the waiver of the attorney-client privilege and therefore the scope of discovery. To do so would undermine the very purpose behind the exception to the attorney-client privilege at issue here — fairness.”); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., No. 93 Civ. 6876, 1995 WL 598971, at *4 (S.D.N.Y. Oct. 11, 1995). BMS argues that the subject matter that it would place at issue in raising an advice-of-counsel defense relates only to BMS’s state of mind when engaging in the allegedly illicit conduct, and that BMS therefore deserves a ruling that any uncommunicated documents or documents that were created after the patent infringement suits were filed would not fall within the scope of any waiver of the attorney-client privilege. However, as the Magistrate Judge correctly held, the subject matter that would be placed at issue also includes whether any such reliance was reasonable, a question that can in some circumstances depend on what counsel knew when it rendered its advice. See, e.g., EEOC v. Rekrem, Inc., No. 00 Civ. 7239, 2002 WL 27776, at *2 (S.D.N.Y. Jan. 10, 2002); Matsushita Elecs. Corp. v. Loral Corp., No. 92 Civ. 5461, 1995 WL 527640, at *2 (S.D.N.Y. Sep. 7, 1995). The Magistrate Judge was also correct that some of the allegedly illicit conduct in this ease spanned into the period in which BMS was prosecuting its patent infringement claims, and that some documents from this period would in fairness likely need to be subject to discovery to test any factual assertions BMS might make in raising an advice-of-counsel defense. There are clearly circumstances in which" }, { "docid": "11780644", "title": "", "text": "Id. The general rule regarding the voluntary disclosure of privileged attorney-client communications is that the disclosure waives the privilege as to all other communications on the same subject. Katz v. AT & T Corp., 191 F.R.D. 433, 439 (E.D.Pa.2000). Thus, when a party asserts an advice of counsel defense, it waives the attorney-client privilege with respect to “all communication to and from counsel concerning the transaction for which counsel’s advice was sought.” Applied Telematics, 1995 WL 567436, at * 1 (quoting Saint-Gobain/Norton Indus. Ceramics Corp. v. General Elec. Co., 884 F.Supp. 31, 33 (D.Mass.1995)); see W.L. Gore & Assoc., Inc. v. Tetratec Corp., No. 89-3995, 1989 WL 144178, at *3 (E.D.Pa. Nov.28, 1989). The waiver principle applies to work product immunity as well as to the attorney-client privilege. Id. Therefore, where a party asserts the advice of counsel as an essential element of its defense, work product immunity, like attorney-client privilege, is waived with respect to the subject of that advice. Id.; see Mushroom Assoc. v. Monterey Mushrooms, Inc., No. 91-1092, 1992 WL 442892, at *3 (N.D. Cal. May 19, 1992). As both parties acknowledge, the scope of the waiver is narrowly construed in patent eases. Katz, 191 F.R.D. at 440 (citing Saint-Gobain, 884 F.Supp. at 34; Applied Telematics, 1995 WL 567436, at *2). However, “[c]ourts must also keep in mind that issues of willful infringement are fact questions determined from the ‘totality of the circumstances.’ ” Kelsey-Hayes Co., 155 F.R.D. at 171 (quoting Shiley, Inc. v. Bentley Labs. Inc., 794 F.2d 1561, 1568 (Fed.Cir.1986), cert. denied, 479 U.S. 1087, 107 S.Ct. 1291, 94 L.Ed.2d 148 (1987)). Therefore, in this context, courts should fashion their orders compelling the production of documents on a case by case basis consistent with the principles of fundamental fairness. Kelsey-Hayes Co., 155 F.R.D. at 171. In the present case, to rebut plaintiffs charge that DuPont Dow willfully infringed the ‘107 patent, DuPont Dow states that it obtained and relied on “an oral and later written opinion [of outside patent counsel] stating that the ‘107 patent was invalid under 35 U.S.C. § 102(f) ... and 102(g).”" }, { "docid": "6589068", "title": "", "text": "left to their own devices, and Rhodia’s contentions have done so since the teleconference. (See D.I. 180, 181, 186.) In Rhodia’s post-teleconference submissions, they claim that there are now six issues on the table, encompassing further demands for documents that PPG claims are privileged. The present opinion is largely confined to the issues discussed during the teleconference, with confidence that the guidance provided should resolve the other matters raised by Rhodia. . One hopes that the occurrence of this expensive feature in patent litigation will be reduced after the United States Court of Appeals for the Federal Circuit takes an era banc look at its \"precedent concerning the drawing of adverse inferences, with respect to willful patent infringement, based on the actions of the party charged with infringement in obtaining legal advice, and withholding that advice from discovery.” Knorr-Bremse Systems v. Dana Corp., 344 F.3d 1336, per curiam order (Fed.Cir.2003). But tire day of clarification is somewhere in the future and the present parties require an answer now. . This decision does not, however, mean that information referring to attorney-client communications involving the ’234 patent is shielded from discovery simply because it is in files associated with foreign counterparts. Any such privileged documents must be turned over to Rhodia. To the extent there is an arguable basis for asserting that a document pertaining to the ’234 patent is not subject to discovery, it must be appropriately logged. {See infra at 12.) Similarly, if information pertaining to the '234 patent is contained in opinions or other communications on related U.S. patents and U.S. patent applications, those communications must be turned over or, if a basis for privilege remains, logged. The scope of waiver \"is defined by the subject matter discussed” in the communications regarding the ’234 patent. See Allergan Inc. v. Pharmacia Corp., 2002 WL 1268047 at *2 (D.Del. May 17, 2002). . There is some question of whether the scope of waiver effected by reliance on an advice-of-counsel defense is a matter to be governed by Federal Circuit or regional circuit case law. Compare Aspex Eyewear, Inc. v. E’Lite Optik," }, { "docid": "15185748", "title": "", "text": "nature and extent of the analysis performed by counsel; and 4. What the infringer knew and had concluded about the credibility, value, and reasonableness of the opinion. Johns Hopkins Univ., 152 F.3d at 1364, 47 USPQ2d 1705; SRI Int’l, 127 F.3d at 1464-68, 44 USPQ2d 1422; Thorn EMI N. Am., Inc. v. Micron Tech., Inc., 837 F.Supp. 616, 620, 29 USPQ2d 1872 (D.Del.1993). The Federal Circuit looks to objective evidence of the adequacy of a legal opinion. Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 219 USPQ 569 (Fed.Cir.1983). Factors include whether counsel examined the file history of the complaint, whether the opinion was written or oral, whether the opinion came from in-house counsel or outside counsel, whether the opinion came from a patent attorney, whether the opinion was detailed or merely conclusory, and whether material information was withheld from the attorney. See, e.g., Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1190-93, 48 USPQ2d 1001 (Fed.Cir.1998); SRI Int’l v. Advanced Tech Lab, 127 F.3d at 1464, 1465-67, 44 USPQ2d 1422 (Fed.Cir.1997); Read Corp. v. Portec. Inc., 970 F.2d 816, 829, 23 USPQ2d 1426 (Fed.Cir.1992); Ortho Pharm. Corp. 959 F.2d at 944-45, 22 USPQ2d 1119; Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, 976 F.2d 1559, 1580-81, 24 USPQ2d 1321 (Fed.Cir.1992); Uniroyal Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1546-47, 19 USPQ2d 1432 (Fed.Cir.1991). IY. Reliance on the Advice of Counsel Defense and Waiver The parties acknowledge that when an accused infringer relies on the advice of counsel defense the accused in-fringer waives the attorney-client privilege and work-product immunity on the subject matter of the defense. The parties dispute the scope of that waiver. A District Court in patent litigation should apply Federal Circuit law in resolving discovery issues that occur in the unique context of patent litigation. Chiron Corp. v. Genentech, Inc., 179 F.Supp.2d 1182, 1185-86 (E.D.Ca.2001). However, the Federal Circuit has not decided the scope of the waiver of the attorney-client privilege and work-product immunity in a discovery dispute where reliance of counsel is asserted as a defense to willfulness, and the district courts" }, { "docid": "12378470", "title": "", "text": "717 F.2d at 1390. It is not necessary that the opinions expressed be legally correct; the issue is whether counsel’s opinion is thorough enough to instill a reasonable belief in the mind of the alleged infringer. Ortho, 959 F.2d at 944; Graco, 60 F.3d at 793. 2. Scope of the Waiver of Attorney-Client and Work Product Although the Federal Circuit has not answered the specific question regarding the scope of the privilege waiver that is the consequence of a defendant’s decision to assert that it has reasonably relied on the opinion of its counsel as a defense to willful infringement, the court has made clear that the infringer’s intent, not that of counsel, is the relevant issue. Thorn EMI North America, Inc. v. Micron Technology, Inc., 837 F.Supp. 616, 621 (D.Del.1993). With this principle in mind, the scope to which otherwise privilege materials must be produced by the party asserting the defense must be broad enough “to illuminate that issue, but no broader.” Steelcase, 954 F.Supp. at 1198; Kelsey-Hayes Co. v. Motor Wheel Corp., 155 F.R.D. 170, 172 (W.D.Mich.1991) (in patent cases, courts generally construe the scope of the subject matter waiver narrowly); Johns Hopkins University v. Cellpro, 160 F.R.D. 30, 34 (D.Del.1995) (citing cases for proposition that attorney client privilege is worthy of maximum legal protection). Where, as in this case, Defendants have responded to a claim of willful infringement by offering evidence that they relied reasonably and in good faith on the advice of counsel, they have clearly waived the attorney client privilege as to all communications between counsel and client regarding the advice actually given. Steelcase, 954 F.Supp. at 1198; This necessarily ineludés the formal opinions received by Defendants, which have been produced. In addition, the scope of the waiver encompasses materials beyond the opinions themselves. If there are otherwise privileged documents in the client’s files that refer or relate to counsel’s opinion, e.g., that refer or reflect an absence of reliance by the Defendants on the advice provided by counsel, those documents would be highly relevant and no longer privileged. Thorn EMI, 837 F.Supp. at 621." } ]

[ { "docid": "2616287", "title": "", "text": "the United States Constitution but “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Federal constitutional law, however, “determines whether that interest rises to the level of a ‘legitimate claim to entitlement’ protected by the Due Process Clause.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978) (citations, omitted). It was not argued before us that this distinction limits Loehr’s action under 42 U.S.C. § 1983 on the ground that the limited nature of his state property interests are inadequate to pass the legitimate entitlement bar for interests under the fourteenth amendment. Cf. Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420 (1981) (finding state remedy adequate in part because of the limited nature of the deprivation); Barthuli v. Board of Trustees, 434 U.S. 1337, 1338, 98 S.Ct. 21, 22, 54 L.Ed.2d 52 (1977) (Rehnquist, J., Circuit Justice) (“the Court might conclude that California’s refusal to grant specific performance where there is an adequate remedy at law acts as a limitation upon the expectation of the employee in continued employment”). We therefore will apply the analysis used by the Supreme Court in its employment cases. See Bishop v. Wood, 426 U.S. 341, 344-47, 96 S.Ct. 2074, 2077-79, 48 L.Ed.2d 684 (1976) (Bishop); Perry v. Sindermann, 408 U.S. 593, 601-03, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972) (Perry); Roth, 408 U.S. at 577-78, 92 S.Ct. at 2709-10; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (“The hallmark of property ... is an individual entitlement grounded in state law .... Once that characteristic is found, the types of interests protected as ‘property’ are varied____”). Loehr asserts three interrelated sources for a “legitimate claim of entitlement,” Roth, 408 U.S. at 577, 92 S.Ct. at 2709, to a continued employment as superintendent: his contract, state law, and official Board policy. As Roth makes clear, the importance of a contract as a source of" } ]

[ { "docid": "15255184", "title": "", "text": "935 (1974)). However, “[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the [Fifth Amendment’s] protection of liberty and property,” and “the range of interests protected by procedural due process is not infinite.” Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Identifying the existence* of a protectable property interest requires reference to sources extrinsic to the Due Process Clause. Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source ... that secure certain benefits and that support claims of entitlement to those benefits.” Id. More is required than a mere “unilateral expedition” that the property interest is secured, because no property interest can exist without “a legitimate claim of entitlement to it.” See id. at 577, 92 S.Ct. 2701. Thus, Plaintiffs “federal constitutional claim depends on [him] having had a property right in continued employment” as a HOCALJ. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Roth, 408 U.S. at 576-78, 92 S.Ct. 2701). When an employee asserts a property right in employment, the extent of that interest is “created and defined by the terms of his appointment.” See Roth at 578, 92 S.Ct. 2701. The decisional law is clear that án at-will employee does not have a legitimate entitlement to continued employment because [he] serves solely at the pleasure of [his] employer. Therefore, once a court determines that a public employee “held [his] position at the will and pleasure of the [governmental entity,” such a finding ‘necessarily establishes that [the employee] had no property-interest’ in the job sufficient to trigger due process . concerns. Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir.2005) (citation omitted) (quoting Bishop v. Wood, 426 U.S. 341, 346 n. 8, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)) (citing Chabal v. Reagan, 841 F.2d 1216, 1223 (3d Cir. 1988)); Thomas v. Town of Hammonton, 351 F.3d 108,. 113 (3d Cir.2003) (citing Bishop, 426 U.S. at 346 n." }, { "docid": "13538095", "title": "", "text": "of procedural protection due. See, e. g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (protected liberty interest in parole revocation). If the aggrieved party is determined to have no protected property interest (e. g., job tenure) or in liberty (stemming from the circumstances surrounding the termination of employment), due process itself does not apply, and the party is left with only those procedural protections established by or otherwise binding upon the employing agency. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Our consideration of the property interest claim in the instant case must begin with the landmark companion cases of Roth and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), in which the Supreme Court reviewed the procedural due process claims of two state employees who had not been discharged during their contract periods, but rather had not had their employment contracts renewed for a subsequent term. In Roth, the Court held that a state university professor had no property interest in continued employment when he had been hired only for a fixed term of one academic year, had no formal tenure, and could point to nothing in state law or in his employment contract which might otherwise explicitly or implicitly entitle him to contract renewal. In so holding, the Court explained that a property interest sufficient to trigger due process protection may be created by statute, contract, or less formal “understandings”, but that something more objectifiable than a sanguine expectation is necessary. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is the purpose of the ancient institution of property to protect those claims upon which people rely" }, { "docid": "4620220", "title": "", "text": "McDonald was an employee at will with no legitimate expectation of continued employment and thus not entitled to procedural due process protections. Before the due process protections of the fourteenth amendment become applicable, there must first exist a protectable liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S, 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Malcak v. Westchester Park Dist., 754 F.2d 239 (7th Cir.1985). In the context of government employment, the Supreme Court in Roth held that a public employee must establish more than a “unilateral expectation of employment” 408 U.S. at 577, 92 S.Ct. at 2709. A protectable property interest exists only if a public employee possesses a “legitimate claim' of entitlement” in his position. Id. Under the Roth analysis, the right to procedural due process is inextricably tied to the existence of a protectable property inter est. If no property interest exists, no procedural due process attaches. To determine the existence of a protecta-ble property interest in employment, the court must turn to state law. As discussed by the Supreme Court in Roth: Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Therefore, this court’s examination of McDonald’s due process claim must necessarily begin with Indiana law. If Indiana law creates no “legitimate claim of entitlement” to continued employment, plaintiff lacks a protectable property interest as required by Roth and is not entitled to procedural due process. Indiana Code 33-5-29.5-8(a) governs disposition of plaintiff's due process claim. This section reads: Appointment of personnel; duties, salaries Sec. 8. (a) The senior judge of each division may appoint such number of bailiffs, court reporters, probation officers, and other personnel, as shall in the opinion of the senior judge be necessary to judicially" }, { "docid": "6228559", "title": "", "text": "employee who possesses a property interest in continued employment without due process of law.” Santana v. Calderón, 342 F.3d 18, 23 (1st Cir.2003). We have held that a contractual agreement can give rise to a property interest. Id. at 24 (“A legitimate expectation of continued employment may derive from a statute, a contract provision, or an officially sanctioned rule of the workplace.”). Thus, the relevant question is whether Peña’s contract did in fact create such a protected interest. Peña’s fixed term contract was set to expire on June 20, 2001. He received notice of termination on February 9, 2001. At that time he was contractually entitled to more than five additional months of employment. In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Supreme Court held that an interest in a benefit is a property interest “if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit.” Id. at 601. At least one of our sister circuits has found a legitimate interest in continued employment where a contract provides for a fixed term of employment services. See San Bernardino Physicians’ Servs. Med. Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1408 (9th Cir.1987). Property interests are not created by the Constitution, but rather “they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We need not reach this issue, because even if Peña did have a property interest in his employment for the remaining five months on his contract, his claim fails as to the second requirement for a prima facie case under § 1983 — that his rights were violated by state officials acting under color of state law. Camilo-Robles v. Zapata, 175 F.3d 41, 43 (1st Cir.1999). It is well-established that “only those individuals who participated in the conduct that deprived the plaintiff of his rights can be held liable.” Cepero-Rivera," }, { "docid": "18698219", "title": "", "text": "lost as a result of the alleged violations of his rights, as well as reinstatement and an award of attorney’s fees. All of the defendants and the plaintiff have filed motions for summary judgment. Essentially, the motions and briefs raise three critical issues. First, it is necessary to determine the extent to which Mr. Himmelbrand may claim fourteenth amendment protection. Second, the court must determine which of the defendants named here are properly suable under § 1983. Finally, the court will address the questions of the voluntariness of Mr. Himmelbrand’s resignation and the possible waiver of his rights in executing the resignation letter. I. PROCEDURAL DUE PROCESS In their motions for summary judgment defendants urge that Mr. Himmelbrand is not entitled to a hearing under the fourteenth amendment because he has not been deprived of any interest protected by the constitution. The proper framework for analysis in cases such as this is well known. The Due Process Clause of the fourteenth amendment requires procedural safeguards only where the state deprives a person of a liberty interest or a property interest. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Thus, in order to show that he is entitled to procedural due process under the federal constitution, a terminated public employee must show that in losing his job, he was deprived of a property or liberty interest. The controversy in the instant case has focused on whether Mr. Himmelbrand had a property interest in his employment. The source of the property interests protected by the fourteenth amendment was outlined in Roth, 408 U.S. at 577, 92 S.Ct. at 2709: “Property interests,” the Court explained, “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” When a public employee can demonstrate that he has a “legitimate claim of entitlement to continued employment,” Sindermann, 408" }, { "docid": "21556236", "title": "", "text": "the Supreme Court has found: A person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Although in this case Dr. Faucher operated for over two years without the benefit of a formal contract between the Hospital Authority and herself, the Supreme Court has held that a legitimate claim may arise from “mutually explicit understandings.” Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972). See also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (“Only last year, the Court held that this principle ‘proscribing summary dismissal from public employment without hearing or inquiry required by due process’ also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment,” citing Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418). Thus, we cannot say that the absence of a formal contract between Dr. Faucher and the Hospital Authority disposes of her claim. Dr. Faucher cites Northeast Georgia Radiological Associates v. Tidwell, 670 F.2d 507 (5th Cir.1982) to support her assertion that the scheduling memorandum’s adverse effect on her case load amounted to a deprivation of her protected property interests. In Tidwell, however, a hospital authority actually terminated the appellant’s staff privileges, and the court held that this amounted to a deprivation of a protected interest. No such termination occurred here. Thus, Dr. Faucher’s real claim is that the economic value of her" }, { "docid": "4873170", "title": "", "text": "20TH-21ST CAUSES OF ACTION) SHOULD BE DISMISSED A. Legal Principles of Due Process Claims In order to formulate a claim under the Fourteenth Amendment’s Due Process Clause, a plaintiff must demonstrate that he or she possesses a constitutionally protected liberty or property interest, and that state action has deprived him or her of that interest. See U.S. Const, amend. XIV, § 1; see also, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972) (“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”). Courts “examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (citation omitted), abrogated on other grounds by, Sandin v. Conner, 515 U.S. 472, 484 n. 5, 115 S.Ct. 2293, 2300 n. 5, 132 L.Ed.2d 418 (1995). 1. Property Interest “Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; see also, e.g., Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 38 L.Ed.2d 570 (1972) (“A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such" }, { "docid": "1491367", "title": "", "text": "person must have more than an abstract need or desire” and “more than a unilateral expectation of it. He must instead have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are ... rules or mutually explicit understandings that support his claim of entitlement to the benefit....” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). These entitlements are created by sources independent of the constitution. Castle Rock, 545 U.S. at 756, 125 S.Ct. 2796. Smith has suffered no violation of her right not to be deprived of property without due process because there is no constitutionally-protected property interest in continued military service or the employment benefits that come with military service. See Wilhelm v. Caldera, 90 F.Supp.2d 3, 8-9 (D.D.C.2000) (citing Guerra v. Scruggs, 942 F.2d 270 (4th Cir.1991)) (holding that “denials of re-enlistment as well as discharges prior to the expiration of a term of service” did not violate due process because “there is no protected property interest in continued military service”); see also Knehans v. Alexander, 566 F.2d 312, 314 (D.C.Cir.1977) (finding that there is “no constitutionally protected entitlement to continued active duty as a commissioned officer in the Army”). Further, Smith has not identified any statute, contract, or other independent source of law that entitles her to the property interests she identifies. As such, Smith has failed to allege a constitutionally-protected property interest in the benefits that derive from continued military service. 2. Liberty Interest By alleging that the flag placed on her personnel file had a stigmatizing effect and constituted “harassment, pure and simple” (see 2d Am. Compl. at 3, 29-31), Smith also appears to allege a constitutionally-protected liberty interest in her reputation and good name. See Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (“The Due Process Clause ... forbids arbitrary deprivations of liberty. ‘Where a person’s good name, reputation," }, { "docid": "22995174", "title": "", "text": "PROCEDURAL DUE PROCESS The Fourteenth Amendment prohibits state actors from depriving an individual of life, liberty, or property without due process of law. U.S. CONST, amend. XIV. This case addresses the “property” component of the Due Process Clause. Bailey argues that the process afforded to her by the defendants was constitutionally inadequate. To prevail on her claim, Bailey must first establish that she enjoyed a property interest in her position as Head Start Director. According to Cleveland Bd. of Educ. v. Loudermill, government employees with a protectable property interest in their jobs are ordinarily entitled to pre-depri-vation notice of the charges, an explanation of the employer’s evidence, and an opportunity to present their account of the events. 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985); Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th Cir.1990). Absent a property interest in her position, however, Bailey was not entitled to any pre-deprivation process whatsoever. Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1537 (6th Cir.1994). The existence of a property interest depends largely on state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Government employment amounts to a protected property interest when the employee is “entitled” to continued employment. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Neither mere government employment nor an abstract need or desire for continued employment will give rise to a property interest. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Gregory v. Hunt, 24 F.3d 781, 787 n. 4 (6th Cir.1994). Rather, a property interest exists and its boundaries are defined by “rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S." }, { "docid": "23683913", "title": "", "text": "BUTZNER, Senior Circuit Judge: Frank I. Detweiler appeals from an order of the district court dismissing his complaint for failure to state a cause of action under 42 U.S.C. §§ 1983 and 1985. Detweiler, a nonprobationary employee of the State of Virginia, alleged that he had a property interest in his continued employment; the Virginia grievance procedure pertaining to the discharge of employees does not satisfy the requirements of the due process clause of the fourteenth amendment; the state failed to follow its grievance procedure; and when he undertook to grieve his disciplinary discharge, he was unable to secure favorable witnesses because of intimidation by a state supervisor. We conclude that Detweiler had a property interest that entitled him to the protection afforded by the due process clause, but his attack on the Virginia grievance procedure lacks merit. We also conclude that Detweiler’s complaint of witness intimidation sufficiently alleged a violation of the due process clause. Accordingly, we vacate the judgment of dismissal and remand the case for further proceedings. I The principles applicable to controversies arising out of discharges of state employees who assert a property interest in continued employment are explained in recent decisions of the Supreme Court. The initial question is whether the employee has a property interest. In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Court held that property interests in continued employment “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” See also Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Whether the procedures to which an employee is entitled are delineated by the law and regulations that created his property interest or by the due process clause has divided the Court. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). It appears, however, that a majority of the Court have concluded" }, { "docid": "13112493", "title": "", "text": "Court pronouncements in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), govern plaintiff’s due process rights. Roth held that the Constitution does not require opportunity for a hearing before the nonrenewal of a nontenured teacher’s contract, unless he can show that the decision deprived him of an interest in “liberty” or that he had a “property” interest in continued employment, despite the lack of tenure or a formal contract. Perry v. Sindermann, supra, at 599, 92 S.Ct. 2694. “[T]hat liberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputa tion of an employee.” Arnett v. Kennedy, 416 U.S. 134, 156-7, 94 S.Ct. 1633, 1646, 40 L.Ed.2d 15, 35 (1974). Since the nature of the reasons for plaintiff’s discharge have not been divulged the court feels plaintiff’s reputation is intact. Therefore, she has been deprived of no constitutionally protected liberty. Likewise, the court finds no deprivation of any constitutionally protected property interest. Roth commands that a person must have more than a unilateral expectation of a property interest. Id., 408 U.S. at 577, 92 S.Ct. 2701. He must have a legitimate claim of entitlement to it. Id. These claims are based not on the Constitution, but “are defined by existing rules or understandings that stem from an independent source such as state law . . .”, Id., or by a mutually binding understanding fostered by an employer. Perry v. Sindermann, supra, 408 at 599-600, 92 S.Ct. at 2709, 33 L.Ed.2d at 561. There is no evidence of a “mutually binding understanding” between plaintiff and defendants analogous to the circumstances presented in Perry v. Sindermann, supra. Further there is no indication that this was a contract other than at will, and, thus, according to Virginia law, may be terminated with or without cause at the will of either party to the contract. 12 Michie’s Juris. Master and Servant § 7 (1950). With regards to plaintiff’s defamation claim," }, { "docid": "6786335", "title": "", "text": "actor for the purposes of § 1983. See, e.g., Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986). We engage in a two-step analysis when resolving procedural due process claims. The threshold issue is whether plaintiffs assert a property interest protected by the Constitution. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 574, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Strong v. Board of Educ. of Uniondale Union Free School Dist., 902 F.2d 208, 211 (2d Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 250, 112 L.Ed.2d 208 (1990); Narumanchi v. Board of Trustees of Connecticut State University, 850 F.2d 70, 72 (2d Cir.1988). If a protected interest is identified, the second step is to determine whether the defendants deprived the plaintiffs of that interest without due process. Loudermill, 470 U.S. at 542-43, 105 S.Ct. at 1493-94; Narumanchi, 850 F.2d at 72. We will consider each step in turn. a. Property Interest Property interests subject to procedural due process protection are not created by the Constitution; rather they are created and defined by “existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. In Roth, the Supreme Court stated: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Id. A person’s interest in a benefit constitutes a “legitimate claim of entitlement” if it is supported by contractual or statutory language that might be invoked at a hearing. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Roth, 408 U.S. at 577, 92 S.Ct. at 2709. A collective bargaining agreement is, of course, a contract between employer and employees. As such," }, { "docid": "22995175", "title": "", "text": "depends largely on state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Government employment amounts to a protected property interest when the employee is “entitled” to continued employment. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Neither mere government employment nor an abstract need or desire for continued employment will give rise to a property interest. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Gregory v. Hunt, 24 F.3d 781, 787 n. 4 (6th Cir.1994). Rather, a property interest exists and its boundaries are defined by “rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Thus, to establish a protected interest in her position as Head Start Director, Bailey must be able to point to some statutory or contractual right conferred by the state which supports a legitimate claim to continued employment. Under Kentucky law, certain employees enjoy property interests in their positions by statutory grant. For instance, under Kentucky’s classified service, classified employees with status enjoy property interests in . their jobs. Ky.Rev.Stat. Ann. § 18A.095C2) (Michie 1996); Williams, 24 F.3d at 1537-38 & n. 4. Likewise, certified school employees are entitled to tenure under the Kentucky Teacher Tenure Act and, therefore, can support a legitimate claim of entitlement in their positions. See Ky.Rev. Stat. Ann. § 161.720-.810 (Michie 1994). Bailey does not qualify for the protection of the classified service or the Kentucky Teacher Tenure Act, and no analogous statute exists to grant a similar claim of entitlement to Bailey. Cf. Hooks v. Smith, 781 S.W.2d 522, 523-24 (Ky.Ct.App.1989) (finding that the procedural safeguards provided for nontenured administrators under Ky.Rev.Stat. § 161.765" }, { "docid": "8583163", "title": "", "text": "with back wages, but dismissed the action as to the remaining plaintiffs. Valdez has not appealed. Appellants contend procedural due process demands that they be given a hearing on the reasons for their termination. The requirements of due process apply only to deprivation of interests encompassed within the Fourteenth Amendment’s protection of “property” and “liberty”. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Appellants claim retention of their employment is a protected property right and rely on such cases as Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), where it was held that due process entitles welfare recipients to an adversary hearing before termination of benefits. However, these cases are dissimilar to the area of law now before us and are not persuasive. The types of property protected by the due process clause vary widely and what may be required by that clause in dealing with one set of interests may not be required in dealing with another set of interests. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). In this regard, public office or employment generally is held not to be a property interest within the meaning of the Fourteenth Amendment. See, e. g., Board of Regents v. Roth, supra; Lontine v. VanCleave, 483 F.2d 966 (10th Cir. 1973); Burks v. Perk, 470 F.2d 163 (6th Cir. 1972), cert. den’d, 412 U.S. 905, 93 S.Ct. 2288, 36 L.Ed.2d 970. This rule is not applicable in all situations, as where public employees hold contractual rights to continuing employment under formal tenure grounds. Summary termination of employment, under such circumstances, may well be actionable. Wilderman v. Nelson, 467 F.2d 1173 (8th Cir. 1973). However, the record does not disclose that appellants have any rights to continued employment which could constitute a property interest. They operate under no contract or commission and have no fixed term of employment, and their employment must be considered terminable at will. At best, appellants have a" }, { "docid": "15291601", "title": "", "text": "that no state shall “deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. However, “property,” for purposes of the Fourteenth Amendment, “denotes a broad range of interests that are secured by existing rules or understandings.” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (internal citations and quotations omitted). “Property interests are not created by the Constitution, ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). According to Illinois courts, “[a] person has a property interest in his job where he has a legitimate expectation of continued employment ... based on a legitimate claim of entitlement.” Faustrum v. Board of Fire & Police Comm’rs, 240 Ill.App.3d 947, 181 Ill.Dec. 567, 608 N.E.2d 640, 641 (1993). “To show a legitimate expectation of continued employment, a plaintiff must show a specific ordinance, state law, contract or understanding limiting the ability of the state or state entity to discharge him.” Krecek v. Board of Police Comm’rs of La Grange Park, 271 Ill.App.3d 418, 207 Ill.Dec. 227, 646 N.E.2d 1314, 1318-19 (1995). A “unilateral expectation of continued employment does not create an entitlement that the due process clause protects.” Simpkins v. Sandwich Comm. Hosp., 854 F.2d 215, 218 (7th Cir. 1988). Here, Dr. Draghi has offered no ordinance, contract or other understanding that created a legitimate expectation of employment. Dr. Draghi’s mere status as a Hospital employee does not create a property interest for purposes of the Fourteenth Amendment. Cf. Woodbury v. McKinnon, 447 F.2d 839, 842 (5th Cir. 1971) (“A doctor has no constitutional right to practice medicine in a public hospital.”). We next look to the terms of Dr. Draghi’s provisional appointment at the Hospital to determine whether his “provisional appointee” status created a property interest for purposes" }, { "docid": "13235959", "title": "", "text": "employment, a plaintiff must have more than an “abstract need or desire for it” and more than a “unilateral expectation of it.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Instead, a plaintiff must have a “legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. 2701. The determination whether a particular job action against a public employee implicates a constitutionally protected property interest is a question of law. Barrows v. Wiley, 478 F.3d 776, 780 (7th Cir.2007). Property interests are not created by the Constitution but rather “they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. 2701. In the employment context, a plaintiff generally is required to show that the terms of his employment provide for termination only “for cause” or otherwise evince “mutually explicit understandings” of continued employment. Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir.2003), quoting Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); see also Colburn v. Trs. of Ind. Univ., 973 F.2d 581, 589 (7th Cir.1992). A property interest in employment is “created and defined by the terms of [the employee’s] appointment.” Roth, 408 U.S. at 578, 92 S.Ct. 2701. “Property interests exist when an employer’s discretion is clearly limited so that the employee cannot be denied employment unless specific conditions are met.” Colburn, 973 F.2d at 589-90. Under Wisconsin law, “a dichotomy exists between employment ‘at-will’ and employment which can be terminated only ‘for cause.’ ” Beischel v. Stone Bank School Dist., 362 F.3d 430, 436 (7th Cir.2004). Employment which can be terminated only “for cause” receives due process protections. Id. at 436. In Beischel, the plaintiff sued after her two-year contract was not renewed. In challenging the non-renewal, the plaintiff relied upon a provision in her contract which stated that the contract was governed by Wisconsin statutes which set out procedures to be followed for renewal and non-renewal. Id. at 435-46. This court concluded the plaintiffs" }, { "docid": "16480018", "title": "", "text": "[or her] claim, summary judgment is inappropriate.” Id., citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The fourteenth amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” To invoke procedural due process, a plaintiff must show “the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The property interests required for fourteenth amendment protection are not created by the Constitution, but “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Id. at 577, 92 S.Ct. at 2709. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). A property interest may also be created by implied contract if there are “mutually explicit understandings” that support a person’s claim. Bishop v. Wood, 426 U.S. 341, 344 & n. 6, 96 S.Ct. 2074, 2077 & n. 6, 48 L.Ed.2d 684 (1976), citing Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). A “property interest” may include the right to continued employment. See Roth, 408 U.S. at 572, 577, 92 S.Ct. at 2706-07, 2709. If a public employee can show that she possesses a property or liberty interest in her employment, the due process protections of the fourteenth amendment will be triggered. Vinyard v. King, 728 F.2d 428, 430 (10th Cir.1984), citing Roth, 408 U.S. at 564, 92 S.Ct. at 2703. In the employment context a property interest is generally created in one of two ways: (1) by an independent source such as a state statute securing certain benefits or rights to a public employee; or (2) by an express or implied promise of continued employment. See Shlay v. Montgomery, 802 F.2d 918, 921 (7th Cir.1986). Plaintiff advances two theories to support her claim of wrongful termination: (1) an oral contract of employment which provided for her" }, { "docid": "4873171", "title": "", "text": "U.S. 472, 484 n. 5, 115 S.Ct. 2293, 2300 n. 5, 132 L.Ed.2d 418 (1995). 1. Property Interest “Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; see also, e.g., Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 38 L.Ed.2d 570 (1972) (“A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.”). “While state law creates the underlying substantive interest the plaintiff seeks to vindicate, ‘federal constitutional law determines whether that interest rises to the level of a “legitimate claim of entitlement” protected by the Due Process Clause.’ ” DSI Assocs. LLC v. United States, 496 F.3d at 186 n. 16 (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978)). 2. Liberty Interest “A person’s interest in his or her good reputation alone, apart from a more tangible interest, is not a liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause or create a cause of action under § 1983.” Patterson v. City of Utica, 370 F.3d 322, 329-30 (2d Cir.2004); see, e.g., Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160-61, 47 L.Ed.2d 405 (1976) (“While we have in a number of our prior cases" }, { "docid": "12276521", "title": "", "text": "Orloff, hired by the VA under the authority of 38 U.S.C. § 4114(a). B. The Due Process Clause The threshold inquiry we must make is whether the VA’s actions deprived Orloff of an interest in property or liberty. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). 1. Property Interest in the Appointment To have a property interest in a governmental benefit, including employment, an individual must have an entitlement to the benefit. Id. at 577, 92 S.Ct. at 2709. Entitlements are created by “rules or understandings” from independent sources, such as statutes, regulations, and ordinances, or express or implied contracts. Id.; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). An entitlement may spring from an understanding if the understanding is “mutually explicit.” Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Orloff argues that the nature of his employment relationship with the VA and his twenty years of service created such an understanding. See Stretten v. Wadsworth Veterans Hospital, 537 F.2d at 361, 367 (9th Cir.1976). The VA argues that because Orloff worked past the initial expiration date of his appointment, October 15, 1978, any property interest in that appointment expired and Orloff had no legitimate expectation of a continued appointment sufficient to amount to a property interest. We reject this contention. Despite the apparent expiration date of Orloff’s contract there may have arisen an understanding of continued employment based on prior treatment of Orloff or other VA employees sufficient to constitute a de facto property interest under Perry v. Sindermann, 408 U.S. at 593, 92 S.Ct. at 2694. Furthermore, after the VA initially terminated Orloff on July 3, 1978, it twice postponed his termination, and the final termination occurred after the VA had extended his appointment. A property interest may have been created by: (1) the appointment initially terminated in July, despite the fact that the VA did not implement the termination decision until November; or (2) the indefinite extension of Orloff’s appointment after the initial termination decision. There remain material factual disputes" }, { "docid": "23683914", "title": "", "text": "controversies arising out of discharges of state employees who assert a property interest in continued employment are explained in recent decisions of the Supreme Court. The initial question is whether the employee has a property interest. In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Court held that property interests in continued employment “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” See also Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Whether the procedures to which an employee is entitled are delineated by the law and regulations that created his property interest or by the due process clause has divided the Court. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). It appears, however, that a majority of the Court have concluded that the employee is entitled to the protection afforded by the due process clause. Justice White (concurring and dissenting) stated in Arnett, 416 U.S. at 185, 94 S.Ct. at 1659: “While the State may define what is and what is not property, once having defined those rights the Constitution defines due process, and as I understand it six members of the Court are in agreement on this fundamental proposition.” The second issue, therefore, is what procedures are required by the due process clause when an employee, who has established a property interest in continued employment, is discharged. II We are unable to accept the state’s argument that nonprobationary employees lack a property interest in their jobs and serve at will. Section 7:10 of the Rules for the Administration of the Virginia Personnel Act provides: Except as terms are provided by law, employment in any position held under any appointment may be terminated at any time by the transfer, demotion, layoff or removal of the incumbent by the appointing authority concerned, under the provisions of these" } ]

[ { "docid": "23464600", "title": "", "text": "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” The Court’s role is “to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” “General, conclusory allegations need not be credited, however, when they are belied by more specific allegations of the complaint.” In the fraud context, plaintiffs do not enjoy a “license to base claims ... on speculation and conclusory allegations.” Federal Rule of Civil Procedure 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The Second Circuit has held that, at a minimum, the complaint must identify the statements plaintiff asserts were • fraudulent and why, in plaintiffs view, they were fraudulent-specifying who made them and where and when they were made. This particularity requirement is reinforced by the Reform Act, in which Congress required that all private seeurities class action complaints alleging material misrepresentations or omissions “shall specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading.” In deciding a Rule 12(b)(6) motion, the Court may consider the following materials: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. PROLOGUE The two cases before the Court are part of a large group assigned to this Court by the Multidistrict Panel for consolidated administration. These cases, and the New York Attorney General’s report which precipitated them, brought to specific public attention certain" } ]

[ { "docid": "5020872", "title": "", "text": "discussed more fully below, however, Plaintiffs also must meet the “exacting pleading requirements” of the PSLRA, which requires Plaintiffs to adhere to significantly more stringent pleading requirements. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. —, 127 S.Ct. 2499, 168 L.Ed.2d 179, 2007 U.S. LEXIS 8270 (2007). Generally, district courts should decide the motion to dismiss on the complaint alone, excluding additional evidence, affidavits, exhibits, and factual allegations contained in legal briefs or memoranda. Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000); accord Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir.2002) (reiterating that “a plaintiffs reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court’s consideration of the document on a dismissal motion; mere notice or possession is not enough”). The following materials may, however, properly be considered on a Rule 12(b)(6) motion to dismiss: In re Merrill Lynch & Co. Research Reports Sec. Litig., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (citations omitted), aff'd on other grounds, Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161 (2d Cir.2005), cert. denied, 546 U.S. 935, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005); Mangiafico v. Blumenthal, 358 F.Supp.2d 6, 9 (D.Conn.2005). (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. Under the “incorporation by reference” doctrine, district courts may consider documents submitted by a defendant on a motion to dismiss if the documents are explicitly relied on in and integral to the plaintiffs complaint. I. Meyer Pincus & Assocs., P.C. v." }, { "docid": "20042860", "title": "", "text": "has acted unlawfully.” Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted). The Court notes that, in adjudicating this motion, it is entitled to consider: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (internal citations omitted), affd in part and vacated in part on other grounds sub nom., Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir.2005), vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]he district court ... could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs’ claim”); Brodeur v. City of New York, No. 04 Civ. 1859, 2005 WL 1139908, at *2-3, 2005 U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y. May 13, 2005) (stating court could consider documents within the public domain on a Rule 12(b)(6) motion to dismiss). III. Discussion A. § 1983 Plaintiff asserts several constitutional violations under § 1983. To prevail on a claim under § 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting under the color of state law. 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation" }, { "docid": "14398901", "title": "", "text": "motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court’s function is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The court must accept the plaintiffs well-pled factual allegations as true and draw all reasonable inferences in the plaintiffs favor. Papasan, 478 U.S. at 283, 106 S.Ct. 2932. Thus, a complaint may be dismissed only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In deciding a motion to dismiss, the court may consider exhibits to the complaint, documents incorporated in the complaint by reference, and matters of which judicial notice may be taken, such as public disclosure documents that are required by law to be, and have been, filed with the SEC. Kramer v. Time Warner, Inc., 937 F.2d 767, 773-74 (2d Cir.1991). 2. Section 10(b) of the Exchange Act and Rule 10b-5 The majority of claims asserted under Rule 10b-5, promulgated under Section 10(b) of the Exchange Act, are brought under subparagraph (b), which prohibits fraudulent misstatements or omissions. To state a claim under that provision, a plaintiff must show that the defendant “(1) made misstatements or omissions of material fact; (2) with scienter; (3) in connection with the purchase or sale of securities; (4) upon which plaintiffs relied; and (5) that plaintiffs’ reliance was the proximate cause of their injury.” Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 172 (2d Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005). In addition, the Private Securities Litigation Reform Act of 1995 (“PSLRA”) requires that a complaint alleging misleading statements or omissions under Section 10(b) “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the" }, { "docid": "23464703", "title": "", "text": "examine the prospectus together with the allegations contained on the face of the complaint. We do so ... despite the fact that the complaint contains only ‘limited quotation’ from that document.”). .See International Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (\"Although the amended complaint in this case does not incorporate the Agreement, it relies heavily upon its terms and effect; therefore, the Agreement is 'integral' to the complaint, and we consider its terms in deciding whether [plaintiff] can prove any set ' of facts that would entitle it to relief.”); Cortee Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (\"[T]he district court ... could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs’ claim”); Oppenheimer, 936 F.2d at 762 (\"The prospectus is integral to the complaint.... We therefore decline to close our eyes to the contents of the prospectus and to create a rule permitting a plaintiff to evade a properly argued motion to dismiss simply because plaintiff has chosen not to attach the prospectus to the complaint or to incorporate it by reference.”). . Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (\"[O]n a motion to dismiss, a court may consider 'documents attached to the complaint as an exhibit or incorporated in it by reference ... matters of which judicial notice may be taken, or .., documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.' \") (quoting Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993)); Rothman, 220 F.3d at 88-89; Cortec, 949 F.2d at 47 (\"Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.”). . Rothman, 220 F.3d at 88; Cortec, 949 F.2d at 47 (\"[Wjhen a district court decides a motion to dismiss a complaint" }, { "docid": "3404032", "title": "", "text": "fifty-four additional stores to Sears, Roebuck for up to $621 million. Ultimately, Kmart sold eighteen stores to Home Depot for $271 million and fifty stores to Sears, Roebuck for $575.9 million. Plaintiffs allege that, as a result of these announcements, the price of Kmart common stock rose from its closing price of $54.86 per share on June 3, 2004, the day before the Home Depot announcement, to $88.06 per share on September 29, 2004, the day that Kmart announced that it had finalized the Sears, Roebuck sale. This Action Almost two years later, plaintiffs commenced this action, alleging that defendants violated Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), and SEC Rule 10b-5 thereunder on the theory outlined above. They allege also that Messrs. Lampert and Day were “controlling persons” within the meaning of Section 20(a) of the Exchange Act and therefore are vicariously liable for the company’s allegedly fraudulent acts. Discussion I. Standard Governing Motions to Dismiss In deciding a motion to dismiss, a court ordinarily accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiffs favor. In order to survive such a motion, however, “the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” Although such motions are addressed to the face of the pleadings, the court may consider also (1) documents attached to or incorporated by reference in the complaint, (2) documents “integral” to and relied upon in the complaint, even if not attached or incorporated by reference, (3) public disclosure documents required by law to be, and that have been, filed with the SEC, and (4) facts of which judicial notice properly may be taken under Rule 201 of the Fed.R.Evid. As this is a securities fraud case, the Complaint must satisfy the heightened pleading requirements of Rule 9(b) and the Private Securities Litigation Reform Act of 1995 (“PSLRA”) — it must state the facts and circumstances constituting the alleged fraud with particularity. Thus, it must “(1) specify the statements that" }, { "docid": "20042859", "title": "", "text": "is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court instructed district courts to first “identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” 129 S.Ct. at 1950. Though “legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, if a complaint contains “well-pleaded factual allegations!],] a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 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. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted). The Court notes that, in adjudicating this motion, it is entitled to consider: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (internal citations omitted), affd in part and vacated in part on other grounds sub nom., Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir.2005)," }, { "docid": "6162033", "title": "", "text": "465 U.S. at 106, 104 S.Ct. 900; Dube, 900 F.2d at 595. Finally, the Eleventh Amendment does not provide any immunity for state officials sued in their personal capacity, and therefore dismissal of such claims is not warranted on sovereign immunity grounds. Dube, 900 F.2d at 595. 2. Failure to State a Claim In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), this Court must accept all factual allegations in the complaint as true and make all reasonable inferences in Relator’s favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). In order to survive such a motion, 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, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); ATSI Commc’ns, Inc., 493 F.3d at 98. This assumption of truth applies only to factual allegations and is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.- In determining whether dismissal is warranted, a court is also entitled to consider, as relevant here: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) ..., and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 356-357 (S.D.N.Y.2003) (footnotes omitted), aff'd 396 F.3d 161 (2d Cir.2005), cert. denied 546 U.S. 935, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005); see Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011). i: Plaintiffs § 1988 Due Process Claim Plaintiffs third cause of" }, { "docid": "6267850", "title": "", "text": "to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth two principles for a district court to follow in deciding a motion to dismiss. 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court instructed district courts first to “identify! ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, if a complaint contains “well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Finally, the Court notes that, in adjudicating a motion to dismiss under Rule 12(b)(6), it is entitled to consider the following: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference; (2) documents integral to the complaint and relied upon in it, even if not attached or incorporated by reference; (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint; (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission; and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. See Jones v. Nickens, 961 F.Supp.2d 475, 483 (E.D.N.Y.2013); David Lerner Assocs., Inc. v. Phila. Indem. Ins. Co., 934 F.Supp.2d 533, 539 (E.D.N.Y. 2013), aff'd, 542 Fed.Appx. 89 (2d Cir.2013); SC Note Acquisitions, LLC v. Wells Fargo Bank, N.A., 934 F.Supp.2d 516, 524 (E.D.N.Y.2013), aff'd, 548 Fed.Appx. 741 (2d Cir.2014). B. Immunity to Suit As an initial matter, the Court notes that the Defendants have not sought qualified immunity and therefore that defense is waived for purposes of this motion. Yeshiva Chofetz Chaim Radin, Inc. v. Vill. of New Hempstead by." }, { "docid": "6162034", "title": "", "text": "applies only to factual allegations and is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.- In determining whether dismissal is warranted, a court is also entitled to consider, as relevant here: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) ..., and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 356-357 (S.D.N.Y.2003) (footnotes omitted), aff'd 396 F.3d 161 (2d Cir.2005), cert. denied 546 U.S. 935, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005); see Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011). i: Plaintiffs § 1988 Due Process Claim Plaintiffs third cause of action asserts a claim under 42 U.S.C. § 1983. This section provides: 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.' Notably, § 1983 does not itself provide a source of substantive rights, but insteád provides the mechanism by which a plaintiff may seek vindication of federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Here, Plaintiff alleges that Defendants deprived him of his protected property right not to be terminated from the residency program without a due process hearing in accordance with the terms of his REA, which incorporates the UB GME Grievance Procedures Policy. (Compl." }, { "docid": "12167975", "title": "", "text": "for dismissal of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6), 9(b), and the PSLRA. In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the complaint liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001)). However, “mere conclusions of law or unwarranted deductions” need not be accepted. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994). Furthermore, the truth of factual allegations that are contradicted by documents properly considered on a motion to dismiss need not be accepted. See, e.g., Rapoport v. Asia Elecs. Holding Co., 88 F.Supp.2d 179, 184 (S.D.N.Y.2000). The following materials may be considered on a Rule 12(b)(6) motion: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (footnotes omitted). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In other words, “ ‘the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ ” Eternity Global Master Fund Ltd. v. Morgan" }, { "docid": "6204791", "title": "", "text": "identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir.2006) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)); see Lundy, 711 F.3d at 119. Conclusory allegations of fraud will not survive Rule 9(b)’s heightened pleading standard, and therefore, will be subject to dismissal at the motion to dismiss stage. E.g. Nasso v. Bio Reference Labs., Inc., 892 F.Supp.2d 439, 446 (E.D.N.Y.2012) (citing Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2d Cir.1971)). The Court notes that, in adjudicating a motion to dismiss under Rule 12(b)(6), it is entitled to consider: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents integral to the complaint and relied upon in it, even if not attached or incorporated by reference, (8) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. E.g. Jones v. Nickens, 961 F.Supp.2d 475, 483 (E.D.N.Y.2013); David Lerner Assocs., Inc. v. Phila. Indem. Ins. Co., 934 F.Supp.2d 533, 539 (E.D.N.Y. 2013), aff'd, 542 Fed.Appx. 89 (2d Cir.2013); SC Note Acquisitions, LLC v. Wells Fargo Bank, N.A., 934 F.Supp.2d 516, 524 (E.D.N.Y.2013), aff'd, 548 Fed.Appx. 741 (2d Cir.2014). III. RICO Under RICO, it is “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 participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). Section 1962(d) makes it “unlawful for any person to conspire to violate ... the provisions of subsection ... (c).” 18 U.S.C. §" }, { "docid": "5244280", "title": "", "text": "16, 45. Plaintiffs allege that the market price of 51 job shares was artificially inflated by defendants’ false and misleading statements, and that members of the putative plaintiff class suffered damages as a result. Compl. ¶¶ 46-48. In their second claim, plaintiffs allege that the individual defendants, as. controlling persons of 51job, are liable for their wrongful conduct under § 20(a) of the Exchange Act. II. STANDARD OF REVIEW On a motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6), the district court’s function “is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980); see Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 124 (2d Cir.1991). In reviewing a motion to dismiss, the district court must “take the well-pleaded factual allegations in the complaint as true,” Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), and “draw[ ] all reasonable inferences in the plaintiffs’ favor.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000). The complaint may be dismissed under Rule 12(b)(6) “only if it is clear that no relief could 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, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In reviewing a Rule 12(b)(6) motion, the court may consider the following materials: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of" }, { "docid": "5944092", "title": "", "text": "The federal securities fraud claims (Counts I and II) are time-barred and dismissed with prejudice. The remaining claims against Evans and Zappala are dismissed without prejudice. McQuillin’s motion to dismiss is DENIED IN PART and GRANTED IN PART. Plaintiffs have successfully alleged claims for securities fraud against McQuil-lin for the issuance of false statements relating to the following three of the thirteen fiscal periods that are described in the Complaint: the second quarter of fiscal year 2000 (relating to the Union Carbide transaction); the third quarter of fiscal year 2001 (relating to the PSC transaction); and the fourth quarter fiscal year 2001 (relating to the Yukos transaction). The Complaint, however, fails adequately to plead fraud against McQuillin with respect to financial statements that do not incorporate or reflect data from the three above-mentioned quarterly periods. The Individual Defendants’ motions to dismiss Plaintiffs’ Cross Claims are GRANTED. The Cross Claims are dismissed with prejudice. Plaintiffs are granted leave to replead with respect to claims and allegations that have been dismissed without prejudice. Plaintiffs are directed to advise the Court by April 11, 2008, as to whether they intend to file an amended complaint. If so, the parties are directed to meet and confer regarding a schedule for the filing of an amended complaint and subsequent motions to dismiss, and submit a stipulated schedule, or competing proposed schedules, to the Court by April 25, 2008. SO ORDERED. . In reviewing a Rule 12(b)(6) motion, the court may consider the following materials: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of" }, { "docid": "5020873", "title": "", "text": "Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161 (2d Cir.2005), cert. denied, 546 U.S. 935, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005); Mangiafico v. Blumenthal, 358 F.Supp.2d 6, 9 (D.Conn.2005). (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. Under the “incorporation by reference” doctrine, district courts may consider documents submitted by a defendant on a motion to dismiss if the documents are explicitly relied on in and integral to the plaintiffs complaint. I. Meyer Pincus & Assocs., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991); accord Chambers, 282 F.3d at 152-53; Rothman v. Grregor, 220 F.3d 81, 88 (2d Cir.2000); see also Stuto v. Fleishman, 164 F.3d 820, 826 n. 1 (2d Cir.1999) (finding the district court’s consideration of a document on a motion to dismiss permissible because the document was discussed in the complaint, and thus incorporated by reference); Int’l Audio-text Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (holding that even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint “relies heavily upon its terms and effect,” which renders the document “integral” to the complaint); Cottec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (consideration of documents permissible when there is “undisputed notice to plaintiffs of their contents and [the documents] were integral to plaintiffs’ claim”), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); Philadelphia Parking Auth. v. Federal Ins. Co., 385 F.Supp.2d 280, 285 (S.D.N.Y.2005)." }, { "docid": "5944093", "title": "", "text": "advise the Court by April 11, 2008, as to whether they intend to file an amended complaint. If so, the parties are directed to meet and confer regarding a schedule for the filing of an amended complaint and subsequent motions to dismiss, and submit a stipulated schedule, or competing proposed schedules, to the Court by April 25, 2008. SO ORDERED. . In reviewing a Rule 12(b)(6) motion, the court may consider the following materials: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merritt Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (citations omitted). . Aspen’s fiscal year ends on June 30. . In re Aspen Technology, Inc. Sec. Litig., No. 04-12375-JLT (D.Mass.). . S.E.C. v. Evans et al., No. 07-10027 (D.Mass.). . United States v. McQuillin, No. 07 Cr. 17 (S.D.N.Y.) (McKenna, J.). On March 26, 2007, a little more than a month after this action was filed, McQuillin pleaded guilty to both counts of the information, before Judge McKenna. On October 19, 2007, McQuillin was sentenced to a term of three years' probation, including six months’ home confinement and 28 days of confinement in a community center. In addition, McQuillin was ordered to perform 50 hours of community service and pay a fine of $12,000 in addition to the statutory special assessment of $200. See ECF Doc. No. 11. . In addition to the thirteen press releases issued in connection with the reporting of financial results, the Complaint references a press release that was issued by Aspen in December 1999 announcing the agreement" }, { "docid": "20299771", "title": "", "text": "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 [the complaint] solely relies and ... is integral to the complaint.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)) (emphases in original). Further, the Court may consider “documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, ... and [ ] facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (internal citations omitted), affd in part and vacated in part on other grounds sub nom. Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir.2005), vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]he district court ... could have viewed [the documents] on the motion to dismiss because there was" }, { "docid": "6267851", "title": "", "text": "documents integral to the complaint and relied upon in it, even if not attached or incorporated by reference; (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint; (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission; and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. See Jones v. Nickens, 961 F.Supp.2d 475, 483 (E.D.N.Y.2013); David Lerner Assocs., Inc. v. Phila. Indem. Ins. Co., 934 F.Supp.2d 533, 539 (E.D.N.Y. 2013), aff'd, 542 Fed.Appx. 89 (2d Cir.2013); SC Note Acquisitions, LLC v. Wells Fargo Bank, N.A., 934 F.Supp.2d 516, 524 (E.D.N.Y.2013), aff'd, 548 Fed.Appx. 741 (2d Cir.2014). B. Immunity to Suit As an initial matter, the Court notes that the Defendants have not sought qualified immunity and therefore that defense is waived for purposes of this motion. Yeshiva Chofetz Chaim Radin, Inc. v. Vill. of New Hempstead by. its Bd. of Trs. of Vill. of New Hempstead, 98 F.Supp.2d 347, 357 (S.D.N.Y.2000). With regard to absolute immunity, the Court notes that the Defendants draw no distinction between federal and state-law claims, “nor do they recognize the distinction between New York’s common law immunity principles and the very different guidelines that govern immunity under federal civil rights claims.” Id. at 356; see Cornejo v. Bell, 592 F.3d 121, 130 (2d Cir.2010) (noting that the “issue of immunity ... differs as between the state and federal law”); S. Carolina v. Baker, 485 U.S. 505, 518 n. 11, 108 S.Ct. 1355, 99 L.Ed.2d 592 (1988) (noting the “sources of the state and federal immunities are, of course, different”). Thus, at this stage of the litigation, the Court declines to recognize absolute immunity against the Plaintiffs state law claims. Turning to the Defendants’ arguments in favor of immunity under federal law, “[i]t is by now well established that ‘a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution’" }, { "docid": "5244281", "title": "", "text": "plaintiffs’ favor.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000). The complaint may be dismissed under Rule 12(b)(6) “only if it is clear that no relief could 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, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In reviewing a Rule 12(b)(6) motion, the court may consider the following materials: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (citations omitted). III. ANALYSIS To state a claim under § 10(b) and Rule 10b-5, a plaintiff must “plead that the defendant, in connection with the purchase or sale of securities, made a materially false statement or omitted a material fact, with scienter, and that the plaintiffs reliance on the defendant’s action caused inju ry to the plaintiff.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000). In addition, a claim for securities fraud must satisfy the heightened pleading-requirements of Federal Rule of Civil Procedure 9(b) and the PSLRA. These requirements involve: (1) the particularity of the facts pleaded, and (2) scienter. Defendants contend that plaintiffs’ complaint must be dismissed because it fails to satisfy these requirements. A. Particularity of the Facts Pleaded 1. Legal Standard When a complaint alleges fraud, Rule 9(b) requires that “the circumstances constituting fraud ... shall be stated with particularity.” To satisfy" }, { "docid": "13938105", "title": "", "text": "complaint contains “well-pleaded factual allegations!,] a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 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. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted). The Court notes that in adjudicating this motion, it is entitled to consider: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (internal citations omitted), affd in part and vacated in part on other grounds sub nom., Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir.2005), vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]he district court ... could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs’ claim”); Brodeur v. City of N.Y., No. 04 Civ. 1859, 2005 WL 1139908, at *2-3, 2005 U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y.2005) (stating court could consider documents within the public domain on a Rule 12(b)(6) motion to dismiss). III." }, { "docid": "20299772", "title": "", "text": "[the complaint] solely relies and ... is integral to the complaint.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)) (emphases in original). Further, the Court may consider “documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, ... and [ ] facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (internal citations omitted), affd in part and vacated in part on other grounds sub nom. Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir.2005), vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]he district court ... could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs’ claim”); Brodeur v. City of New York, No. 04 Civ. 1859, 2005 WL 1139908, at **3-4, 2005 U.S. Dist. LEXIS 10865, at **9-10 (E.D.N.Y. May 13, 2005) (court could con sider documents within the public domain on a Rule 12(b)(6) motion to dismiss). C. Summary Judgment The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless “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 judgment as a matter of law.” Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). The court “is not to" } ]

[ { "docid": "21591362", "title": "", "text": "fulfillment of obligations owing to them because of Western’s actions and the injunction remedying them. “[T]he disappearance by merger of a corporate employer ... does not automatically terminate all rights of the [previous] employees ...[;] the successor employer may [still] be required to arbitrate with the union under the [prior] agreement.” John Wiley & Sons, Inc., v. Livingston, 376 U.S. 543, 548, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964). Delta may be free to execute its own policies to other employees, but it is not free to abrogate its predecessor’s obligations to plaintiffs under the injunction. Challenge to Injunctive Relief Delta’s final argument, that petitioners must meet the criteria for injunc-tive relief, is misdirected; the real issue in this case is whether successorship liability attaches. Because the merits of Criswell’s claims have already been adjudicated, and because the obligation is preexisting, the plaintiffs need not make an independent showing for injunctive relief. Nor need they file a new action. That the new employer is not a party to the consent decree is of course irrelevant, for that is the whole point of the successorship doctrine. The question is whether the successorship doctrine applies and, if so, on what rationale. Bates, 744 F.2d at 709. Determination of successorship is a highly fact-specific enterprise, and we find in the record no reason to disagree with the district court’s analysis. See e.g., Howard Johnson Co., Inc. v. Detroit Local Joint Exec. Bd., 417 U.S. 249, 256, 94 S.Ct. 2236, 2240, 41 L.Ed.2d 46 (1974); Bates, 744 F.2d at 709. Delta is a successor to Western for purposes of the Criswell injunction. CONCLUSION The judgment of the district court is affirmed. There is a continuity of operations between the merged airlines, Delta had notice of Western’s obligations, and Delta has the ability to provide relief. The elements for successorship are satisfied. The district court did not err in finding that Delta has succeeded to the position of Western and is therefore bound by the Criswell injunction. AFFIRMED." } ]

[ { "docid": "13667205", "title": "", "text": "be owed the plaintiffs as a result of Packard’s alleged violations. When a company is sold in an asset sale as opposed to a stock sale, the buyer acquires the company’s assets but not necessarily its liabilities; whether or not it acquires them is the issue of successor liability. Most states limit such liability, with exceptions irrelevant to this case, to sales in which a buyer (the successor) expressly or implicitly assumes the seller’s liabilities. Wisconsin, the state whose law would apply if the underlying claim were based on state law, is such a state. Columbia Propane, L.P. v. Wisconsin Gas Co., 261 Wis.2d 70, 661 N.W.2d 776, 784 (2003). But when liability is based on a violation of a federal statute relating to labor relations or employment, a federal common law standard of successor liability is applied that is more favorable to plaintiffs than most state-law standards to which the court might otherwise look. See, e.g., John Wiley & Sons, Inc. v. Liv ingston, 376 U.S. 543, 548-49, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) (Labor Management Relations Act); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184-85, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (National Labor Relations Act); Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir.1986) (Title VII); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture, 920 F.2d 1323, 1327 (7th Cir.1990) (ERISA); EEOC v. G-K-G, Inc., 39 F.3d 740, 747-48 (7th Cir.1994) (Age Discrimination in Employment Act); Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 781 (9th Cir.2010) (Family and Medical Leave Act); cf. Musikiwamba v. ESSI, Inc., 760 F.2d 740, 746 (7th Cir.1985) (42 U.S.C. § 1981 — racial discrimination in contracting). In particular, a disclaimer of successor liability is not a defense. We must consider whether the federal standard applies when liability is based on the Fair Labor Standards Act, and if so whether, properly applied, the standard authorized the imposition of successor liability in this case. Packard provided, and continues under its new ownership by Thomas & Betts to provide, maintenance and emergency technical services for equipment designed to" }, { "docid": "4654835", "title": "", "text": "the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Edüd 176, 177 (1962). Furthermore, the court must consider the entire record in the case, not just those pieces of evidence which have been singled out for attention by the parties. See Clinkscales v. Chevron USA, Inc., 831 F.2d 1565, 1570 (11th Cir.1987). B. Successor Liability The general rule of successor corporate liability is that, when one corporation sells its assets to another, the latter is not responsible for the seller’s debts or liabilities absent an express or implied agreement to assume specific obligations. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182 n. 5, 94 S.Ct. 414, 424 n. 5, 38 L.Ed.2d 388, 402 n. 5 (1973). An exception to this rule is that a successor corporation may be held to answer for the unfair or discriminatory labor practices of its predecessor. Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns Int’l Sec. Serv., Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). The imposition of such liability on a successor corporation does not create new rights in the employee, but merely recognizes that the employee-victim of unfair labor practices is essentially helpless to protect existing rights when ownership of a business changes. E.g., Golden State Bottling Co., supra, 414 U.S. at 181-86, 94 S.Ct. at 423-26, 38 L.Ed.2d at 401-03; In re National Airlines, Inc. 700 F.2d 695, 698 (11th Cir.1983). In the context of the employee/employer relationship, the applicable courts have recognized that congressional policies against unfair and discriminatory labor practices embodied in statutes such as the National Labor Relations Act (“NLRA”), Title VII [42 U.S.C. § 2000e, et seq.], and Section 1981 override common law rules of successor liability. Howard Johnson Co., supra, 417 U.S. at 249, 94 S.Ct. at 2236, 41" }, { "docid": "20402792", "title": "", "text": "statute.” Steinbach, 51 F.3d at 845 (citing Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (NLRA); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323 (7th Cir.1990) (Multiemployer Pension Plan Amendments Act (“MPPAA”)); Sec’y of Labor v. Mullins, 888 F.2d 1448 (D.C.Cir.1989) (Mine Safety and Health Act); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093 (9th Cir.1989) (Age Discrimination in Employment Act); Trustees for Alaska Laborers-Construction Indus. Health & Sec. Fund v. Ferrell, 812 F.2d 512 (9th Cir.1987) (ERISA); Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.1985) (42 U.S.C. § 1981); Bates v. Pac. Mar. Ass’n, 744 F.2d 705 (9th Cir.1984) (Title VII)). As the Connecticut District Court pointed out in Medina, Courts in this Circuit have applied this test in, inter alia, the Title VII context. 760 F.Supp.2d at 269 (citing Molfese v. Fairfaxx Corp., No. 05 Civ. 317, 2006 WL 1438582, at *3 (D.Conn. May 12, 2006) ; EEOC v. Nichols Gas & Oil, Inc., 518 F.Supp.2d 505, 510-11 (W.D.N.Y.2007) ; Abdel-Khalek v. Ernst & Young, LLP, No. 97 Civ. 4514,1999 WL 190790, at *7 (S.D.N.Y. Apr. 7, 1999); Long v. AT & T Info. Sys., Inc., 733 F.Supp. 188, 208 (S.D.N.Y.1990)). The Supreme Court originally applied this broader form of successor liability in the NLRA context “to avoid labor unrest and provide some protection for employees against the effects of a sudden change in the employment relationship.” Steinbach, 51 F.3d at 845 (citing Golden State Bottling Co., 414 U.S. at 182-85, 94 S.Ct. 414; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)); see also Musikiwamba, 760 F.2d at 750-51 (explaining that imposition of successor liability is to ensure that an employee’s statutory rights are not “vitiated by the mere fact of a sudden change in the employer’s business”). FLSA’s provisions regarding employee wages and hours invoke the same concerns as the other laws for which courts have applied the substantial continuity test. The Ninth Circuit noted that “FLSA was passed to protect workers’" }, { "docid": "13386982", "title": "", "text": "its lease, and returned all leased equipment to Hubbard. In March 1992, plaintiffs amended their complaint to add Care as a defendant, on the theory that Care was Hubbard’s successor and could therefore be held liable for Hubbard’s alleged FLSA violations. The district court granted Care’s motion for summary judgement, concluding that Care was not a successor for FLSA purposes. This ruling was properly certified for interlocutory appeal pursuant to Fed.R.Civ.P. 54(b). We review de novo the district court’s grant of summary judgment. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We affirm. II The FLSA, like virtually all employment law statutes, does not discuss whether the liabilities it creates may be passed on to innocent successor employers. However, beginning with cases under the National Labor Relations Act (“NLRA”), federal courts have developed a federal common law successor-ship doctrine that now extends to almost every employment law statute. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (NLRA); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323 (7th Cir.1990) [hereinafter Upholsterers’] (Multiemployer Pension Plan Amendments Act (“MPPAA”)); Secretary of Labor v. Mullins, 888 F.2d 1448 (D.C.Cir.1989) (Mine Safety and Health Act); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093 (9th Cir.1989) (Age Discrimination in Employment Act); Trustees for Alaska Laborers-Construction Industry Health & Sec. Fund v. Ferrell, 812 F.2d 512 (9th Cir.1987) [hereinafter Trustees ] (ERISA); Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.1985) (42 U.S.C. § 1981); Bates v. Pacific Maritime Ass’n, 744 F.2d 705 (9th Cir.1984) (Title VII). Suecessorship ' liability was originally adopted under the NLRA to avoid labor unrest and provide some protection for employees against the effects of a sudden change in the employment relationship. Golden State Bottling Co., 414 U.S. at 182-85, 94 S.Ct. at 424-26; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964). In deciding to extend suecessorship liability to other contexts, courts have recognized that extending liability to successors will sometimes be necessary" }, { "docid": "11778373", "title": "", "text": "the National Labor Relations Act. Id. at 745-46. See Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). From that line of precedent, we distilled three justifications for successor liability that apply with equal force in the context of employment discrimination: (1) the overriding congressional policy against unfair employment practices; (2) the helplessness of the victim to protect his rights when ownership of the business changes; and (3) the ability of the successor to provide relief at a minimum cost. Musikiwamba, supra at 746. Title VII “was explicitly patterned after the NLRA.” Id. at 748. Because in Musikiwamba we confronted only a claim under § 1981, we did not directly address the applicability of the successor liability doctrine in a Title VII case. The decision was premised, however, on the proposition that successor liability applies in the Title VII context. Id. We so hold. We continue to find helpful criteria articulated in Equal Employment Opportunity Commission v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir.1974): (1) whether the successor employer had prior notice of the claim against the predecessor; (2) whether the predecessor is able, or was able prior to the purchase, to provide the relief requested; and (3) whether there has been a sufficient continuity in the business operations of the predecessor and successor. The first two factors are “critical” because of the inequity of holding a successor liable when “the predecessor is fully capable of providing relief or when the successor did not have the opportunity to protect itself by an indemnification clause in the acquisition agreement or a lower purchase price.” Musikiwamba, 760 F.2d at 750. The remaining factor, the degree of continuity between the two enterprises, can be viewed as a variant of the “continuity” exception to the" }, { "docid": "11778372", "title": "", "text": "since, by her own admission, Wheeler did not know how to appraise used cars. April 2 is the date on which all new car salespersons with less seniority than Wheeler were laid off, and no new car salespersons were recalled or hired until May 1981. According to Snyder, Wheeler would have been laid off during this longer period. We see no clear error in the district court’s finding that in light of Wheeler’s sales prowess a reasonable business decision would have been to retain Wheeler and shift another new car salesperson to used car sales. Successor Liability Wheeler contends the application of the successor liability doctrine renders Double K liable for the discriminatory act of Snyder. In Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.1985), we addressed extensively the application of the successor liability doctrine in the context of employment discrimination. We held the successor liabili ty doctrine applies in employment discrimination cases, including those brought under 42 U.S.C. § 1981. The court analogized from cases holding successor employers liable in suits brought under the National Labor Relations Act. Id. at 745-46. See Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). From that line of precedent, we distilled three justifications for successor liability that apply with equal force in the context of employment discrimination: (1) the overriding congressional policy against unfair employment practices; (2) the helplessness of the victim to protect his rights when ownership of the business changes; and (3) the ability of the successor to provide relief at a minimum cost. Musikiwamba, supra at 746. Title VII “was explicitly patterned after the NLRA.” Id. at 748. Because in Musikiwamba we confronted only a claim under § 1981, we did not directly address the applicability of the successor liability doctrine" }, { "docid": "20402791", "title": "", "text": "United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998), “when determining whether liability under CERCLA passes from one corporation to another, we must apply common law rules and not create CERCLA-specific rules.” NSI, 460 F.3d at 205. The court determined that because there was no conflict between the traditional state/common law test for successor liability and the federal interests at issue in CERCLA, the traditional common law test should apply. Id. However, that decision was limited to the CERCLA context. Thus, the Court does not agree with the Kaur court’s conclusion that NSI mandated that the traditional common law successor liability test was appropriate in all circumstances. The NSI decision did not affect the long-standing application of the broader “substantial continuity” test by federal courts in various labor and employment contexts both before and after NSI. As the Ninth Circuit has explained, “beginning with cases under the National Labor Relations Act (“NLRA”), federal courts have developed a federal common law successorship doctrine that now extends to almost every employment law statute.” Steinbach, 51 F.3d at 845 (citing Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (NLRA); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323 (7th Cir.1990) (Multiemployer Pension Plan Amendments Act (“MPPAA”)); Sec’y of Labor v. Mullins, 888 F.2d 1448 (D.C.Cir.1989) (Mine Safety and Health Act); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093 (9th Cir.1989) (Age Discrimination in Employment Act); Trustees for Alaska Laborers-Construction Indus. Health & Sec. Fund v. Ferrell, 812 F.2d 512 (9th Cir.1987) (ERISA); Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.1985) (42 U.S.C. § 1981); Bates v. Pac. Mar. Ass’n, 744 F.2d 705 (9th Cir.1984) (Title VII)). As the Connecticut District Court pointed out in Medina, Courts in this Circuit have applied this test in, inter alia, the Title VII context. 760 F.Supp.2d at 269 (citing Molfese v. Fairfaxx Corp., No. 05 Civ. 317, 2006 WL 1438582, at *3 (D.Conn. May 12, 2006) ; EEOC v. Nichols Gas & Oil, Inc., 518 F.Supp.2d 505, 510-11" }, { "docid": "10021755", "title": "", "text": "to receiving plaintiffs Complaint. Morris Esformes is one of three owners of Leland. He is also a limited partner in Colonial Healthcare, the owner of the real estate, and the company that was inadvertently sued by plaintiff only to be dismissed soon thereafter. Discussion Plaintiff filed its lawsuit against Pavilion and Leland based on a successor liability theory. The United States Supreme Court has applied the doctrine of successor liability in unfair labor practices under the National Labor Relations Act (NLRA). Howard Johnson Co., Inc. v. Detroit Local Joint Executive Bd., 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Golden State Bottling Co., Inc. v. National Labor Relations Board, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). Although the Supreme Court has never ruled on whether its reasoning also applies to discriminatory practices by employers, almost all Circuits have assumed that it does. See Equal Employment Opportunity Comm’n v. MacMillian Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir.1974) (first to apply a successor liability theory under Title VII, reasoning that Title VII was molded to a large degree after the NLRA ); see also, Rego v. ARC Water Treatment Co. of Pa., 181 F.3d 396 (3rd Cir.1999); Rojas v. TK Communications, Inc., 87 F.3d 745 (5th Cir.1996); Equal Employment Opportunity Comm’n v. G-K-G, Inc., 39 F.3d 740 (7th Cir.1994); In re National Airlines, Inc., 700 F.2d 695 (11th Cir.1983); Trujillo v. Longhorn Mfg. Co., Inc., 694 F.2d 221 (10th Cir.1982); Dominguez v. Hotel, Motel, Restaurant & Miscellaneous Bartenders Union, Local # 61, 674 F.2d 732 (8th Cir.1982); Forde v. Kee Lox Mfg. Co., Inc., 584 F.2d 4 (2nd Cir.1978); Slack v. Havens, 522 F.2d 1091 (9th Cir.1975). The doctrine of successor liability is derived from equitable principles, and fairness is the prime consideration in application of the doctrine. Rego v. ARC Water Treatment Co. of Pa., 181 F.3d 396, 401 (3rd Cir.1999); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093, 1094 (9th Cir.1989). It would be grossly unfair, except in the most exceptional circumstances, to impose successor liability on an innocent purchaser when the successor" }, { "docid": "4654836", "title": "", "text": "U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns Int’l Sec. Serv., Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). The imposition of such liability on a successor corporation does not create new rights in the employee, but merely recognizes that the employee-victim of unfair labor practices is essentially helpless to protect existing rights when ownership of a business changes. E.g., Golden State Bottling Co., supra, 414 U.S. at 181-86, 94 S.Ct. at 423-26, 38 L.Ed.2d at 401-03; In re National Airlines, Inc. 700 F.2d 695, 698 (11th Cir.1983). In the context of the employee/employer relationship, the applicable courts have recognized that congressional policies against unfair and discriminatory labor practices embodied in statutes such as the National Labor Relations Act (“NLRA”), Title VII [42 U.S.C. § 2000e, et seq.], and Section 1981 override common law rules of successor liability. Howard Johnson Co., supra, 417 U.S. at 249, 94 S.Ct. at 2236, 41 L.Ed.2d at 46 (NLRA); Golden State Bottling Co., supra, 414 U.S. at 168, 94 S.Ct. at 414, 38 L.Ed.2d at 388 (NLRA); Burns Int’l Sec. Serv., Inc., supra, 406 U.S. at 272, 92 S.Ct. at 2571, 32 L.Ed.2d at 61 (NLRA); John Wiley & Sons, Inc. v. Livingston, 376 U.S. at 543, 84 S.Ct. at 909, 11 L.Ed.2d at 898 (NLRA); Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir.1986) (Title VII); Musikiwamba v. ESSI, Inc., 760 F.2d 740, 745-46 (7th Cir.1985) (Section 1981); In re National Airlines, supra, 700 F.2d at 698 (Title VII); Dominguez v. Hotel, Motel, Restaurant & Misc. Bartenders Union, Local 64, 674 F.2d 732 (8th Cir.1982) (Title VII); EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093-94 (6th Cir.1974) (Title VII). There are, of course, logical reasons behind such conclusions. Unlike a third party’s personal injury claim against a predecessor corporation, for example, an employee’s claim for unpaid wages or benefits is internal and should not be extinguished because of a mere change in the corporation’s external" }, { "docid": "23659772", "title": "", "text": "successor liability, the Court found the imposition of liability to be of relatively minimal economic cost: because “the successor must have notice before liability can be imposed, ‘his potential liability for remedying unfair labor practices is a matter which can-be reflected in the price he pays for the business_’” Id. at 185, 94 S.Ct. at 425, (quoting Perma Vinyl Corp., 164 N.L.R.B. 968, 969 (1967)). Golden State and its progenitor, John Wiley & Sons Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), have provided the foundation for a series of cases in which this court and others have concluded that the balance between the need to effectuate federal labor and employment discrimination policies and the need, reflected in the traditional common law rule, to facilitate the fluid transfer of corporate assets is best struck by the imposition of successor liability. In Musikiwamba v. ESSI Inc., 760 F.2d 740 (7th Cir.1985), this court extended the labor law successorship doctrine to a § 1981 claim for employment discrimination. Three considerations motivated the court’s decision: the existence of an “overriding federal policy against unfair [] employment practices,” the recognition that “the victim of the illegal employment practice is helpless to protect his rights against an employer’s change in the business,” and the recognition that “the successor can provide relief at minimum cost.” 760 F.2d at 746. Similarly, in Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th Cir.1986), we drew upon these justifications to impose liability upon a successor for a predecessor’s Title VII violation. We reasserted our belief that “in the context of Congressional prohibition of discrimination in employment, judicial importation of the concept of successor liability is essential to avoid undercutting Congressional purpose by parsimony in provision of effective remedies.” 794 F.2d at 1237. Relevant to the imposition of liability were the following factors: (1) whether the successor employer had prior notice of the claim against the predecessor; (2)whether the predecessor is able, or was able prior to the purchase, to provide the relief requested; and (3) whether there has been sufficient continuity in the business" }, { "docid": "18745624", "title": "", "text": "with them. We begin by noting the nearly unanimous rule of traditional federal labor law, that absent a near identity of employers and perfect continuity of a single enterprise, a court may not impose the substantive provisions of a collective bargaining agreement between a union and the predecessor employer upon a nonconsenting successor employer. Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, 417 U.S. 249, 264-65, 94 S.Ct. 2236, 2244-2245, 41 L.Ed.2d 46 (1974); Golden State Bottling Co., Inc. v. N.L.B.B., 414 U.S. 168, 181-85, 94 S.Ct. 414, 423-425, 38 L.Ed.2d 388 (1973); N.L.R.B. v. Burns International Security-Services, Inc., 406 U.S. 272, 283-84, 92 S.Ct. 1571, 1580 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Bartenders and Culinary Workers Union, Local 340 v. Howard Johnson Co., 535 F.2d 1160, 1162 (9th Cir. 1976) (and the cases and authorities cited therein). Reference to the particular facts of each acquisition at issue in view of the totality of the circumstances, compels us to conclude that non-carriers and the next operators are not successor employers within the context of the federal labor law. Neither the required degree of employer identity nor the substantial continuity of the business operation are present here. Thus, the terms of the Milwaukee collective bargaining agreements may not be imposed upon these parties who have either expressly or impliedly declined to voluntarily assume the obligations contained within the agreements. RLEA argues that these labor cases are inapplicable and of no effect in these appeals because the cases at bar arise under the Railway Labor Act. We cannot agree. It is the policies enunciated in these decisions which guide us in resolution of this issue of first impression. These policies include those stressed by the Burns Court: (1) freedom of contract under federal labor law (as Burns had not agreed to assume its predecessor’s obligations); (2) inhibition of the free flow of capital if the new employers were to be bound to pre-existing agreements; and (3) freedom of the successor to effect substantial alterations in the operation of" }, { "docid": "12995781", "title": "", "text": "a deeper analysis. The argument’s initial appeal stems from the common understanding of successor liability as a corporate law concept, applied when a corporation reorganizes to ensure that creditors are not defrauded. Successor liability under the FMLA, however, derives from labor law, not corporate law. See infra. Labor cases, whose holdings were later applied to Title VII cases, apply an equitable, policy driven approach to successor liability that has very little connection to the concept of successor liability in corporate law. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184-85, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns Int’l Security Servs., Inc., 406 U.S. 272, 279-87, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Successor liability is imposed in labor law if the court determines that it would be equitable to impose such liability-considering 1) the defendant’s interest, 2) the plaintiffs interest, and 3) federal policy embodied in the relevant statutes in light of the particular facts of the case and the particular duty at issue. See EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1089-91 (6th Cir.1974) (adopting labor approach to successor liability in a Title VII case). a. The principles of federal successor liability applicable to the FMLA originate in federal labor law. The Supreme Court first addressed labor law successor liability in John Wiley & Sons, Inc. v. Livingston, 376 U.S. at 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). In Wiley, the Supreme Court held that the defendant-corporation, formed as the result of a merger, was bound to arbitrate with the plaintiff-union under the arbitration clause of the pre-merger corporation’s collective bargaining agreement. Id. at 548, 84 S.Ct. 909. The Court reasoned that the federally imposed duty to arbitrate labor disputes could not be effectuated if every change in corporate structure relieved employers of the duty to arbitrate. Id. at 549, 84 S.Ct. 909. Concluding that a collective bargaining agreement was not truly a consensual contract to which the ordinary principles of contract law applied, the" }, { "docid": "20402793", "title": "", "text": "(W.D.N.Y.2007) ; Abdel-Khalek v. Ernst & Young, LLP, No. 97 Civ. 4514,1999 WL 190790, at *7 (S.D.N.Y. Apr. 7, 1999); Long v. AT & T Info. Sys., Inc., 733 F.Supp. 188, 208 (S.D.N.Y.1990)). The Supreme Court originally applied this broader form of successor liability in the NLRA context “to avoid labor unrest and provide some protection for employees against the effects of a sudden change in the employment relationship.” Steinbach, 51 F.3d at 845 (citing Golden State Bottling Co., 414 U.S. at 182-85, 94 S.Ct. 414; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)); see also Musikiwamba, 760 F.2d at 750-51 (explaining that imposition of successor liability is to ensure that an employee’s statutory rights are not “vitiated by the mere fact of a sudden change in the employer’s business”). FLSA’s provisions regarding employee wages and hours invoke the same concerns as the other laws for which courts have applied the substantial continuity test. The Ninth Circuit noted that “FLSA was passed to protect workers’ standards of living through the regulation of working conditions,” and concluded that “[t]hat fundamental purpose is as fully deserving of protection as the labor peace, anti-discrimination, and worker security policies underlying the NLRA, Title VII, 42 U.S.C. § 1981, ERISA, and MPPAA.” 51 F.3d at 845. The Connecticut District Court pointed out that the Second Circuit “has observed that the FLSA has a ‘remedial’ purpose, and that ‘Congress intended the statute to have the widest possible impact in the national economy.’ ” 760 F.Supp.2d at 267 (quoting Barfield v. N.Y. City Health & Hosp. Corp., 537 F.3d 132, 142 (2d Cir.2008)) (brackets and quotation marks omitted). In light of these policy considerations, and the Second Circuit’s instruction to use a “flexible” approach in applying FLSA, Barfield, 537 F.3d at 141, the Court agrees with the Ninth Circuit’s conclusion in Steinbach that application of the broader “substantial continuity” standard used in other labor and employment law contexts is appropriate in cases brought under FLSA. 3. The Substantial Continuity Test The substantial continuity test in the labor" }, { "docid": "4654837", "title": "", "text": "L.Ed.2d at 46 (NLRA); Golden State Bottling Co., supra, 414 U.S. at 168, 94 S.Ct. at 414, 38 L.Ed.2d at 388 (NLRA); Burns Int’l Sec. Serv., Inc., supra, 406 U.S. at 272, 92 S.Ct. at 2571, 32 L.Ed.2d at 61 (NLRA); John Wiley & Sons, Inc. v. Livingston, 376 U.S. at 543, 84 S.Ct. at 909, 11 L.Ed.2d at 898 (NLRA); Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir.1986) (Title VII); Musikiwamba v. ESSI, Inc., 760 F.2d 740, 745-46 (7th Cir.1985) (Section 1981); In re National Airlines, supra, 700 F.2d at 698 (Title VII); Dominguez v. Hotel, Motel, Restaurant & Misc. Bartenders Union, Local 64, 674 F.2d 732 (8th Cir.1982) (Title VII); EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093-94 (6th Cir.1974) (Title VII). There are, of course, logical reasons behind such conclusions. Unlike a third party’s personal injury claim against a predecessor corporation, for example, an employee’s claim for unpaid wages or benefits is internal and should not be extinguished because of a mere change in the corporation’s external legal title. In applying the successor liability doctrine, a court must balance the public interest in the enforcement of congressionally established national labor policies against the public interest in maintaining and encouraging the free flow of capital as well as the limited liability principle of corporations. Howard Johnson Co., supra, 417 U.S. at 249, 94 S.Ct. at 2236, 41 L.Ed.2d at 46; Golden State Bottling Co., supra, 414 U.S. at 168, 94 S.Ct. at 414, 38 L.Ed.2d at 388; Burns Int’l Sec. Serv., Inc., supra, 406 U.S. at 272, 92 S.Ct. at 2571, 32 L.Ed.2d at 61; Musikiwamba, supra, 760 F.2d at 745-48; In re National Airlines, supra, 700 F.2d at 698. In striking this balance, the court must consider several factors. First, the court must consider whether the successor employer had’ prior notice of the claim against the predecessor. Second, the court must look at whether the predecessor is able, or was able prior to the purchase, to provide the relief requested. Finally, the court must determine whether there has been sufficient continuity in" }, { "docid": "15396172", "title": "", "text": "260, 695 N.E.2d 1379, 1388-89 (1998); Brandon v. Anesthesia & Pain Management Associates, Ltd., 419 F.3d 594, 599 (7th Cir.2005) (applying Illinois law); Leannais v. Cincinnati, Inc., 565 F.2d 437, 439 (7th Cir.1977); Kaiser Foundation Health Plan v. Clary & Moore, P.C., 123 F.3d 201, 204-05 (4th Cir.1997); Oppenheimer v. Prudential Securities Inc., 94 F.3d 189, 193 (5th Cir.1996). You can purchase all the assets of a company and explicitly decline to assume any of its liabilities, and your declination will be valid unless the transaction is a fraud against creditors or the selling and the purchasing company aren’t meaningfully separate, as in a corporate reorganization. E.g., Gray v. Mundelein College, supra, 231 Ill.Dec. 260, 695 N.E.2d at 1388-89; Leannais v. Cincinnati, Inc., supra, 565 F.2d at 439. RM did not assume the top hat plan’s liabilities; nor, so far as appears, did it connive with Rand McNally to deprive participants of their top hat benefits; nor was it (again so far as appears) a mere continuation of Rand McNally under another name. So Feinberg has not made a case for successor liability — at least under the conventional common law principles of successorship liability summarized above. A complication is that “when a claim arising from a violation of federal rights is involved, the courts allow the plaintiff to go against the purchaser of the violator’s business even if it is a true sale ..., provided that two conditions are satisfied. The first is that the successor had notice of the claim before the acquisition.... The second condition is that there be substantial continuity in the operation of the business before and after the sale, and is satisfied if no major changes are made in that operation.” EEOC v. G-K-G, Inc., 39 F.3d 740, 747-48 (7th Cir.1994); see also Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182-85 and n. 5, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323, 1325-29 (7th Cir.1990); Trustees for Alaska Laborers-Construction Industry Health & Security Fund v. Ferrell, 812 F.2d 512, 515-16" }, { "docid": "15396173", "title": "", "text": "has not made a case for successor liability — at least under the conventional common law principles of successorship liability summarized above. A complication is that “when a claim arising from a violation of federal rights is involved, the courts allow the plaintiff to go against the purchaser of the violator’s business even if it is a true sale ..., provided that two conditions are satisfied. The first is that the successor had notice of the claim before the acquisition.... The second condition is that there be substantial continuity in the operation of the business before and after the sale, and is satisfied if no major changes are made in that operation.” EEOC v. G-K-G, Inc., 39 F.3d 740, 747-48 (7th Cir.1994); see also Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182-85 and n. 5, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323, 1325-29 (7th Cir.1990); Trustees for Alaska Laborers-Construction Industry Health & Security Fund v. Ferrell, 812 F.2d 512, 515-16 (9th Cir.1987). This expands the common law rule for the sake of beneficiaries of federal statutes relating mainly to labor, including pensioners; the common law rule looks only to identity of ownership between seller and buyer and not to identity of operations between a seller and a buyer that may have been dealing at arm’s length. But the federal rule cannot help Feinberg without a showing that “no major changes [were] made in [the] operation” of Rand McNally’s business after the sale to RM. He has attempted no such showing. So his claim against RM under section 502 (nonpayment of ERISA benefits) fails. There may conceivably have been a fraud but if so it is likely to have been committed by Rand McNally rather than by RM. Suppose Rand McNally distributed to its shareholders, in the form of a dividend, all the money it received from the sale of its assets to RM. Because a dividend is not an exchange for reasonably equivalent value, that would be a fraud by Rand McNally on its creditors," }, { "docid": "13667206", "title": "", "text": "(1964) (Labor Management Relations Act); Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184-85, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (National Labor Relations Act); Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir.1986) (Title VII); Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture, 920 F.2d 1323, 1327 (7th Cir.1990) (ERISA); EEOC v. G-K-G, Inc., 39 F.3d 740, 747-48 (7th Cir.1994) (Age Discrimination in Employment Act); Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 781 (9th Cir.2010) (Family and Medical Leave Act); cf. Musikiwamba v. ESSI, Inc., 760 F.2d 740, 746 (7th Cir.1985) (42 U.S.C. § 1981 — racial discrimination in contracting). In particular, a disclaimer of successor liability is not a defense. We must consider whether the federal standard applies when liability is based on the Fair Labor Standards Act, and if so whether, properly applied, the standard authorized the imposition of successor liability in this case. Packard provided, and continues under its new ownership by Thomas & Betts to provide, maintenance and emergency technical services for equipment designed to protect computers and other electrical devices from being damaged by power outages. All of Packard’s stock was acquired in 2006 by Bray, though Packard retained its name and corporate identity and continued operating as a stand-alone entity. The workers’ FLSA suit was filed two years later. Several months after it was filed, Bray defaulted on a $60 million secured loan that it had obtained from the Canadian Imperial Bank of Commerce and that Packard, Bray’s subsidiary, had guaranteed. To pay as much of the debt to the bank as it could, Bray assigned its assets — including its stock in Packard, which was its principal asset — to an affiliate of the bank. The assets were placed in a receivership under Wisconsin law and auctioned off, with the proceeds going to the bank. Thomas & Betts was the high bidder at the auction,- paying approximately $22 million for Packard’s assets. One condition specified in the transfer of the assets to Thomas & Betts pursuant to the auction was that the transfer be “free and clear" }, { "docid": "13386983", "title": "", "text": "v. Artistic Furniture of Pontiac, 920 F.2d 1323 (7th Cir.1990) [hereinafter Upholsterers’] (Multiemployer Pension Plan Amendments Act (“MPPAA”)); Secretary of Labor v. Mullins, 888 F.2d 1448 (D.C.Cir.1989) (Mine Safety and Health Act); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093 (9th Cir.1989) (Age Discrimination in Employment Act); Trustees for Alaska Laborers-Construction Industry Health & Sec. Fund v. Ferrell, 812 F.2d 512 (9th Cir.1987) [hereinafter Trustees ] (ERISA); Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.1985) (42 U.S.C. § 1981); Bates v. Pacific Maritime Ass’n, 744 F.2d 705 (9th Cir.1984) (Title VII). Suecessorship ' liability was originally adopted under the NLRA to avoid labor unrest and provide some protection for employees against the effects of a sudden change in the employment relationship. Golden State Bottling Co., 414 U.S. at 182-85, 94 S.Ct. at 424-26; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964). In deciding to extend suecessorship liability to other contexts, courts have recognized that extending liability to successors will sometimes be necessary in order to vindicate important statutory policies favoring employee protection. Upholsterers’, 920 F.2d at 1326-27; Musikiwamba, 760 F.2d at 746; EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1091 (6th Cir.1974). Where employee protections are concerned, “judicial importation of the concept of successor liability is essential to avoid undercutting Congressional purpose by parsimony in provision of effective remedies.” Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1237 (7th Cir.1986). The FLSA was passed to protect workers’ standards of living through the regulation of working conditions. 29 U.S.C. § 202. That fundamental purpose is as fully deserving of protection as the labor peace, anti-discrimination, and worker security policies underlying the NLRA, Title VII, 42 U.S.C. § 1981, ERISA, and MPPAA. The analysis set forth in the cases extending potential liability under these statutes justifies application of the doctrine here as well. Consequently, we conclude that successor-ship liability exists under the FLSA. We borrow as well the same basic standards used in these other employment contexts. Under the NLRA, successor liabil ity can attach when 1)" }, { "docid": "12344552", "title": "", "text": "contracts between the predecessor and its employees, or, instead, should not be affected by the labor relationships of its predecessor. See Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). A review of these cases indicates that the Court balances the interests of the employees and the employer and labor law policy generally. See, e.g., Howard Johnson Co., 417 U.S. at 262, n. 9, 94 S.Ct. at 2243, n. 9, 41 L.Ed.2d at 56-57, n. 9. Such factors as the extent to which the successor corporation essentially continues the operations of the former corporation and whether the new corporation had notice of the former corporation’s practices and policies are also a part of this inquiry. See, e.g., Golden State Bottling Co., 414 U.S. at 171-174, 94 S.Ct. at 418-420, 38 L.Ed.2d at 395-397. See also, Boeing Co. v. International Association of Machinists and Aerospace Workers, 504 F.2d 307 (5th Cir.1974), cert, denied, 421 U.S. 913, 95 S.Ct. 1570, 43 L.Ed.2d 779 (1975). Of greater importance, however, is the Court’s pronouncement that the test for successor liability is fact specific and must be conducted “in light of the facts of each case and the particular legal obligation which is at issue.” 417 U.S. at 262, n. 9, 94 S.Ct. at 2243, n. 9,41 L.Ed.2d at 56-57,.n. 9. Thus, the Court emphasized that: [t]here is, and can be, no single definition of “successor” which is applicable in every legal context. A new employer, in other words, may be a successor for some purposes and not for others. Id. Although the former Fifth Circuit Court of Appeals and this court have not considered whether the successor liability doctrines enunciated by the Supreme Court in a labor law setting should be applicable" }, { "docid": "23659771", "title": "", "text": "Rather, the Supreme Court and this Circuit have imposed liability upon successors beyond the bounds of the common law rule in a number of different employment-related contexts in order to vindicate important federal statutory policies. In Golden State Bottling, for example, the Supreme Court held that liability under the National Labor Relations Act could be imposed on a successor for a predecessor’s unlawful discharge of an employee. The Court ruled that an employer who substantially assumes a predecessor’s assets, continues the predecessor’s operations without interruption or substantial change, and who has notice of a pending unfair labor practice charge at the time of acquisition can be required to remedy the unfair labor practice. The Board’s remedy in Golden State required reinstatement with back pay of the aggrieved employee. The Court affirmed the Board’s remedial order against the successor in order to promote the free exercise of employees' rights under the NLRA and make whole the victimized employee. Id. at 184-85, 94 S.Ct. at 425-26. Speaking to the economic justifications underlying the common law presumption against successor liability, the Court found the imposition of liability to be of relatively minimal economic cost: because “the successor must have notice before liability can be imposed, ‘his potential liability for remedying unfair labor practices is a matter which can-be reflected in the price he pays for the business_’” Id. at 185, 94 S.Ct. at 425, (quoting Perma Vinyl Corp., 164 N.L.R.B. 968, 969 (1967)). Golden State and its progenitor, John Wiley & Sons Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), have provided the foundation for a series of cases in which this court and others have concluded that the balance between the need to effectuate federal labor and employment discrimination policies and the need, reflected in the traditional common law rule, to facilitate the fluid transfer of corporate assets is best struck by the imposition of successor liability. In Musikiwamba v. ESSI Inc., 760 F.2d 740 (7th Cir.1985), this court extended the labor law successorship doctrine to a § 1981 claim for employment discrimination. Three considerations motivated the" } ]

[ { "docid": "18874547", "title": "", "text": "conspiracy. It is enough that a concert of action is contemplated and that the defendants conformed to this arrangement.” Ambook Enterprises v. Time, Inc., 612 F.2d 604, 614 (2d Cir.1979), cert. dism’d, 448 U.S. 914, 101 S.Ct. 35, 65 L.Ed.2d 1179 (1980), quoting United States v. Paramount Pictures, 334 U.S. 131, 142, 68 S.Ct. 915, 922, 92 L.Ed. 1260 (1948). As the Ambook court noted, the Supreme Court in Paramount “found the point of drawing an inference from conscious parallelism scarcely deserving of elaboration.” Ambook, 612 F.2d at 614. In Apex Oil Co. v. DiMauro, 822 F.2d 246, 253-54 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987), the Court of Appeals has held that: [s]inee mere parallel behavior can be consistent with independent conduct, courts have held that a plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunctions with the parallel acts, can serve to allow a fact-finder to infer a conspiracy. Id., citing In re Plywood Antitrust Litigation, 655 F.2d 627, 633 (5th Cir.1981). “Plus factors” identified by courts, which, in combination with parallel pricing, may support an inference of conspiracy, include a common motive to conspire, actions which were against their own individual business interest absent an illicit agreement, and evidence of coercion. At the stage of a motion to dismiss, a complaint must “allege, at a minimum, the legal and factual theory upon which [the] claim of interdependent conscious parallelism rests.” Levitch v. Columbia Broadcasting System, Inc., 495 F.Supp. 649, 675 (S.D.N.Y.1980). See also, Bogosian v. Gulf Oil Co., 561 F.2d 434, 446 (3rd Cir.1977) (holding that it was sufficient in alleging conspiracy based on conscious parallelism to show a detailed provisions of a parallel lease provisions and that it was unnecessary: for plaintiffs to plead the basis upon which that combination will be proven. The goals of efficient judicial administration are retarded, not advanced, when the pleadings are used as a battleground for legal skirmishes without the necessary factual development upon which to focus decision.) Plaintiffs have not only alleged" } ]

[ { "docid": "20625430", "title": "", "text": "however, plead direct evidence of conspiracy. See Anderson News, 680 F.3d at 183. Conspiracies are rarely evidenced by explicit agreements — they must nearly always be proven through “ ‘inferences that may fairly be drawn from the behavior of the alleged conspirators.’ ” Id. (quoting Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1043 (2d Cir.1976); see also Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 136-37 (2d Cir.2013) (in many antitrust cases, “smoking gun” evidence can be hard to come by, and thus a complaint must set forth sufficient circumstantial facts supporting an inference of conspiracy)). At the pleading stage, plaintiffs here must allege sufficient facts to support (not “prove” or even “demonstrate”) a plausible inference that defendants reached an agreement; a complaint merely alleging parallel conduct alone is not sustainable. Twombly, 550 U.S. at 556, 127 S.Ct. 1955; see also Mayor & City Council of Balt., 709 F.3d at 135-36 (“[Alleging parallel conduct alone is insufficient, even at the pleading stage.”); Anderson News, 680 F.3d at 184. In cases in which there is obvious parallel conduct and the question is whether it is the product of coordinated or unilateral decision making, a plaintiff must allege additional facts that point toward a meeting of the minds. Twombly, 550 U.S. at 557, 127 S.Ct. 1955. Even conscious parallelism in pricing among competitors is not itself unlawful. Id. at 553-54, 127 S.Ct. 1955; In re Publ’n Paper, 690 F.3d at 62. By engaging in conscious parallelism, firms in a concentrated market may lawfully recognize shared economic interests and, in effect, lawfully exercise market power by setting their prices at a profit maximizing, supra-competitive level. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227-28, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). “Plus-factors” may provide the additional circumstances necessary to permit a fact-finder to infer a conspiracy. Examples of plus-factors are a common motive to conspire, actions taken against economic self-interest, and a high level of inter-firm communications. In re Publ’n Paper, 690 F.3d at 62; see also Apex Oil Co. v. DiMauro, 822" }, { "docid": "11994983", "title": "", "text": "Fee Antitrust Litigation, a multi-district class action litigation also pending in the Southern District before Judge Pauley (“the MDL Action”). The plaintiffs in the MDL Action are holders of MasterCard, Visa, and Diners Club (“the Network Defendants”) branded credit cards, which are issued by various prominent banks, including Chase, Citibank, and Bank of America (“the Issuing Banks”). The central allegation made by the plaintiffs in the MDL Action is that the Network Defendants and the Issuing Banks (collectively “the MDL Defendants”) engaged in a conspiracy, in violation of, inter alia, the Sherman Act, 15 U.S.C. §§ 1 et seq., to fix fees charged to cardholders for credit card transactions involving foreign currency at a level well above that which would prevail in a competitive market. The plaintiffs also allege that the MDL Defendants engaged in a concerted effort to conceal the allegedly inflated foreign currency transaction fees from credit card holders. See generally In re Currency Conversion Fee Antitrust Li-tig., 265 F.Supp.2d 385 (S.D.N.Y.2003). The plaintiffs in this action are also holders of MasterCard, VISA, and Diners Club credit cards. They assert claims against American Express Company and certain of its affiliated entities (collectively “Amex”). The plaintiffs’ central allegation is that Amex “has actively conspired with the MDL Defendants to fix, maintain, and conceal the artificially inflated” foreign currency transaction fees alleged in the MDL Action. It is crucial to note that the plaintiffs in this action are not holders of Amex credit cards and therefore do not seek relief as purchasers of Amex products. Rather, Amex is alleged to have “joined, participated, ratified, and materially supported [the] collusive arrangement between and among the MDL Defendants” to charge artificially inflated fees on MasterCard, VISA, and Diners Club transactions involving foreign currencies. In order to obtain their MasterCard and VISA credit cards, each plaintiff enters into a standard cardholder agreement with the Issuing Banks. Of particular import here is that the cardholder agreements include a broad arbitration clause which provides that “[a]ny dispute, claim, or controversy ... arising out of or relating to relating to this Agreement” be settled in an" }, { "docid": "276470", "title": "", "text": "which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). To prove a conspiracy based on consciously parallel behavior, a plaintiff must show: “(1) that the defendants’ behavior was parallel; (2) that the defendants were conscious of each other’s conduct and that this awareness was an element in their decision-making processes; and (3) certain ‘plus’ factors.” Petruzzi’s IGA Supermarkets, Inc. v. Darling-Dela ware Co., Inc., 998 F.2d 1224, 1242-43 (3rd Cir.1993). The plus factors are necessary to showing concerted action because parallel behavior, such as parallel price increases, is often consistent with independent reactions to a competitive market. Apex Oil Co., 822 F.2d at 253; see also Brooke Group Ltd., 509 U.S. at 237, 113 S.Ct. 2578 (noting that “rising prices do not themselves permit an inference of a collusive market dynamic”). The D.C. Circuit has held that to show that parallel behavior is not the result of independent conduct, the plaintiff must (1) show that the “acts by the defendants [are] in contradiction of their own economic interests,” and (2) make a “satisfactory demonstration of a motivation to enter into a conspiracy.” Kreuzer, 735 F.2d at 1488 n. 12.; see also Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n, 663 F.2d 253, 267 (D.C.Cir.1981) (noting that “parallel behavior may support an inference of conspiracy when the alleged co-conspirators have acted in a way inconsistent with independent pursuit of economic self-interest, [but] that inference is warranted only when a theory of rational, independent action is less attractive than that of concerted action”); see also Lukens Steel Co., 454 F.Supp. at 1190-1191. But see Petruzzi’s IGA Supermarkets, Inc., 998 F.2d at 1242 (Third Circuit opinion noting that a range of circumstantial evidence can be a plus factor, “ ‘[f]or example, have they attended meetings or conducted discussions at which they had the opportunity to conspire;" }, { "docid": "276469", "title": "", "text": "of a conspiracy and offer an innocent explanation of the questioned conduct.” Id. “If this explanation is plausible and more logical than a theory of concerted action, then a conspiracy may not be found. At all times, of course, the ultimate burden of persuading the factfinder that a conspiracy exists is on the plaintiff.” Id. “Facing the sworn denial of the existence of conspiracy, it [is] up to plaintiff to produce significant probative evidence by affidavit or deposition that conspiracy existed if summary judgment [is] to be avoided.” Lamb’s Patio Theatre, Inc. v. Universal Film Exchanges, Inc., 582 F.2d 1068, 1070 (7th Cir.1978). Conspiracy may be inferred from evidence of “parallel business behavior” if the evidence tends to exclude the possibility of independent action. Lukens Steel Co., 454 F.Supp. at 1189; see also Apex Oil Co. v. DiMauro, 822 F.2d 246, 253 (2nd Cir.1987); Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 473 (3rd Cir.1985). “Tacit collusion, sometimes called oligopolistic price coordination or conscious parallelism, describes the process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). To prove a conspiracy based on consciously parallel behavior, a plaintiff must show: “(1) that the defendants’ behavior was parallel; (2) that the defendants were conscious of each other’s conduct and that this awareness was an element in their decision-making processes; and (3) certain ‘plus’ factors.” Petruzzi’s IGA Supermarkets, Inc. v. Darling-Dela ware Co., Inc., 998 F.2d 1224, 1242-43 (3rd Cir.1993). The plus factors are necessary to showing concerted action because parallel behavior, such as parallel price increases, is often consistent with independent reactions to a competitive market. Apex Oil Co., 822 F.2d at 253; see also Brooke Group Ltd., 509 U.S. at 237, 113 S.Ct. 2578 (noting that “rising prices do not themselves permit an inference of a" }, { "docid": "3934869", "title": "", "text": "553, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). The |irst “crucial question in a Section 1 case is therefore whether the challenged conduct ‘stem[s] from independent decision or from an agreement, tacit or express.’ ” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.2010) (alteration in original) (quoting Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 98 L.Ed. 273 (1954)). Identifying the existence and nature of a conspiracy requires determining whether the evidence “reasonably tends to prove that the [defendant] and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (internal quotation marks omitted). Parallel action is not, by itself, sufficient to pr'ove the existence of a conspiracy; such behavior could be the result of “coincidence, independent responses to common stimuli, or mere .interdependence unaided by an advance understanding among the parties.” Twombly, 550 U.S. at 556 n. 4, 127 S.Ct. 1955 (internal quotation marks omitted). Indeed, parallel behavior that does not result from an agreement is not unlawful even if it is anticompetitive. See In re Text Messaging Antitrust Litig., 782 F.3d 867, 873-79 (7th Cir.2015); In re Flat Glass Antitrust Litig., 385 F.3d 350, 360-61 (3d Cir.2004). Accordingly, to prove an antitrust conspiracy, “a plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy.” Apex Oil Co. v. DiMauro, 822 F.2d 246, 253 (2d Cir.1987). These additional circumstances can, of course, consist of “direct evidence that the defendants entered into an agreement” like “a recorded phone call in which two competitors agreed to fix prices.” Mayor & City Council of Baltimore, Md. v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir.2013). But plaintiffs may also “present circumstantial facts supporting the inference that a conspiracy existed.” Id. Circumstances that may raise an inference of conspiracy include “a common motive" }, { "docid": "3934870", "title": "", "text": "4, 127 S.Ct. 1955 (internal quotation marks omitted). Indeed, parallel behavior that does not result from an agreement is not unlawful even if it is anticompetitive. See In re Text Messaging Antitrust Litig., 782 F.3d 867, 873-79 (7th Cir.2015); In re Flat Glass Antitrust Litig., 385 F.3d 350, 360-61 (3d Cir.2004). Accordingly, to prove an antitrust conspiracy, “a plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy.” Apex Oil Co. v. DiMauro, 822 F.2d 246, 253 (2d Cir.1987). These additional circumstances can, of course, consist of “direct evidence that the defendants entered into an agreement” like “a recorded phone call in which two competitors agreed to fix prices.” Mayor & City Council of Baltimore, Md. v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir.2013). But plaintiffs may also “present circumstantial facts supporting the inference that a conspiracy existed.” Id. Circumstances that may raise an inference of conspiracy include “a common motive to conspire, evidence that shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators, and evidence of a high level of interfirm communications.” Id. (internal quotation marks omitted). Parallel conduct alone may support an inference of conspiracy, moreover, if it consists of “complex and historically unprecedented changes in pricing structure made at the very same time by multiple competitors, and made for no other discernible reason.” Id. at 137 (internal quotation marks omitted). Because of the risk of condemning parallel conduct that results from independent action and not from an actual unlawful agreement, the Supreme Court has cautioned against drawing an inference of conspiracy from evidence that is equally consistent with independent conduct as with illegal conspiracy — or, as the Court has called it, “ambiguous” evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 n. 21, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Thus, a finding of conspiracy requires “evidence that tends to exclude the possibility” that the defendant was “acting independently.” Monsanto, 465" }, { "docid": "11329364", "title": "", "text": "of § 1 of the Sherman Act.) [emphasis in original], citing Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., supra at 541, 74 S.Ct. at 259-60. Accordingly, it is now settled antitrust law that only when the plaintiff shows the existence of this additional evidence — often referred to as the “plus factors” — does the evidence tend to exclude the possibility that the defendants were actually acting independently. Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1456 n. 30 (11th Cir.1991) (“[A]n agreement is properly inferred from conscious parallelism only when ‘plus factors’ exist.”); Apex Oil Co. v. DiMauro, supra at 253; Petruzzi’s IGA v. Darling-Delaware, supra at 1244 (“courts require plus factors because otherwise the evidence is equally consistent with legal behavior”); In re Coordinated Pretrial Proceedings, supra at 445. By way of example, consciously paralleling conduct may allow for an inference of an agreement if it is also shown that each conspirator acted against its own self-interest, by engaging in the paralleling behavior. See, e.g., Petruzzi’s IGA v. Darling-Delaware, supra at 1242; Reserve Supply v. Owens-Coming Fiberglas, supra at 51; Apex Oil Co. v. DiMauro, supra at 253. Likewise, a high-level of interfirm communications, when viewed in conjunction with paralleling acts, can serve to allow a Jury to reasonably infer a conspiracy. See, e.g., Market Force Inc. v. Wauwatosa Realty Co., 906 F.2d 1167, 1172 (7th Cir.1990); Nichols Motorcycle Supply Inc. v. Dunlop Tire Corp., 913 F.Supp. 1088, 1117 (N.D.Ill.1995), vacated on other grounds, pursuant to settlement (September 18,1995). Nevertheless, where an examination of the proffered “plus factors” leads to an equally plausible inference that merely interdependent behavior is at hand, then there is no triable issue that would preclude a grant of Summary Judgment, so long as there is no evidence which tends to exclude the possibility that the alleged conspirators acted independently. See, Market Force Inc. v. Wauwatosa Realty Co., supra at 1171; Apex Oil Co. v. DiMauro, supra at 254. This is so, because “[a]mbiguous evidence cannot be sent a jury [as] a court may not invite the factfinder to speculate that an agreement" }, { "docid": "12975873", "title": "", "text": "(“Typicality in the antitrust context will be established by plaintiffs and all class members alleging the same antitrust violation as the defendants.”); In re Urethane Antitrust Litig., Polyether Polyol Cases, 251 F.R.D. 629, 640-41 (D.Kan. 2008) (“Urethane II”) (finding typicality in an antitrust price-fixing conspiracy (collecting cases)); see also In re Potash Antitrust Litig., 159 F.R.D. 682, 691 n. 11 (D.Minn. 1995) (same) (collecting cases). 2. Adequacy Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ, P. 23(a)(4). “Adequacy ‘entails inquiry as to whether: 1) plaintiffs interests are antagonistic to the interest of other members of the class and 2) plaintiffs attor neys are qualified, experienced and able to conduct this litigation.’ ” In re Flag Telecom, 574 F.3d at 35 (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000)). “The focus is on uncovering ‘conflicts of interest between named parties and the class they seek to represent.’ ” In re Flag Telecom, 574 F.3d at 35 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). However, “[i]n order to defeat a motion for certification, the conflict must be fundamental.” In re Flag Telecom, 574 F.3d at 35 (internal quotation marks and citation omitted). Relying in part on a footnote in this Court’s decision in Amex I, Defendants contend that Ross and Wachsmuth are adequate class representatives only for cardholders holding the same cards that Plaintiffs actually hold and on which Plaintiffs incurred currency conversion fees at the time the litigation was filed. In Amex I, this Court noted that Ross and Wachsmuth were adequate representatives only for the cards they actually held. See Amex I, 2005 WL 2364969, at *1 n. 1. This holding was based in part on this Court’s prior holding in CCF TV that the named plaintiffs in that action, Chase and Citibank cardholders, were inadequate to represent cardholders of another bank, Pro-vidian, because the plaintiffs there only offered “conclusory statements” that they would adequately protect the interests of the absent" }, { "docid": "12608348", "title": "", "text": "a conspiracy actually existed. As Starr suggests, there are two ways to do this. First, a plaintiff may, of course, assert direct evidence that the defendants entered into an agreement in violation of the antitrust laws. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 323-24 (3d Cir.2010) (“Allegations of direct evidence of an agreement, if sufficiently detailed, are independently adequate” under Twombly). Such evidence would consist, for example, of a recorded phone-call in which two competitors agreed to fix prices at a certain level. But, in many antitrust cases, this type of “smoking gun” can be hard to come by, especially at the pleading stage. Thus a complaint may, alternatively, present circumstantial facts supporting the inference that a conspiracy existed. “[Ejven in the absence of direct ‘smoking gun’ evidence,” a horizontal agreement, such as the one alleged in the case before us, “may be inferred on the basis of conscious parallelism, when such interdependent conduct is accompanied by circumstantial evidence and plus factors.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001); see also Apex Oil Co. v. DiMauro, 822 F.2d 246, 253-54 (2d Cir.1987) (“[A] plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy.”). “These ‘plus factors’ may include: a common motive to conspire, evidence that shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators, and evidence of a high level of interfirm communications.” Twombly v. Bell Atl. Corp., 425 F.3d 99, 114 (2d Cir.2005), rev’d on other grounds, Twombly, 550 U.S. 544, 127 S.Ct. 1955. Generally, however, alleging parallel conduct alone is insufficient, even at the pleading stage. This is Twombly’s contribution. The plaintiffs in that case alleged that defendant telephone companies had “entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and ha[d] agreed not to compete with one another and otherwise allocated customers and markets to one another.” 550" }, { "docid": "7670515", "title": "", "text": "under Section 1 of the Sherman Act, however, “the range of permissible inferences from ambiguous evidence” is limited, id. at 588, 106 S.Ct. 1348, because antitrust laws prohibit only contracts, combinations, or conspiracies— and not independent parallel conduct— that operate unreasonably to restrain trade, see Apex Oil, 822 F.2d at 253. Although “[p]arallel conduct can be probative evidence bearing on the issue of whether there is an antitrust conspiracy,” id., it may also, as the district court in the instant case pointed out, “simply [be] the result of similar decisions by competitors who have the same information and the same basic economic interests,” Twombly, 313 F.Supp.2d at 181. Accordingly, in a Section 1 case where there is no “direct, ‘smoking gun’ evidence,” Todd, 275 F.3d at 198, conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. To sur vive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently. Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (citations omitted, emphasis added)). Thus, on a motion for summary judgment in a case involving alleged violations of Section 1, “courts have held that a plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy.” Apex Oil, 822 F.2d at 253. These “plus factors” may include: “a common motive to conspire,” id. at 254, evidence that “shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators, ” id. (citation and. internal quotation marks omitted), and evidence of “a high level of interfirm communications,” id.; accord Todd, 275 F.3d at 198. B. On Motion to Dismiss. We are reviewing the grant of a motion to dismiss, not the grant of a" }, { "docid": "7670516", "title": "", "text": "to exclude the possibility’ that the alleged conspirators acted independently. Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (citations omitted, emphasis added)). Thus, on a motion for summary judgment in a case involving alleged violations of Section 1, “courts have held that a plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy.” Apex Oil, 822 F.2d at 253. These “plus factors” may include: “a common motive to conspire,” id. at 254, evidence that “shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators, ” id. (citation and. internal quotation marks omitted), and evidence of “a high level of interfirm communications,” id.; accord Todd, 275 F.3d at 198. B. On Motion to Dismiss. We are reviewing the grant of a motion to dismiss, not the grant of a motion for summary judgment, however. To survive a motion to dismiss, as we have explained, an antitrust claimant must allege only the existence of a conspiracy and a sufficient supporting factual predicate on which that allegation is based. As discussed in part II.C. of this opinion, the pleaded factual predicate must include conspiracy among the realm of “plausible” possibilities in order to survive a motion to dismiss. Nagler suggests that a pleading of facts indicating parallel conduct by the defendants can suffice to state a plausible claim of conspiracy. Nagler, 248 F.2d at 325. Thus, to rule that allegations of parallel anticompetitive conduct fail to support a plausible conspiracy claim, a court would have to conclude that there is no set of facts that would permit a plaintiff to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence. Of course, if a plaintiff can plead facts in addition to parallelism to support an inference of collusion — what we have referred to above as “plus factors” at the summary judgment" }, { "docid": "1353860", "title": "", "text": "accord AD/SAT v. Associated Press, 181 F.3d 216, 234 (2d Cir. 1999) (holding that to prove an antitrust violation “an antitrust plaintiff must present evidence tending to show that association members, in their individual capacities, consciously committed themselves to a common scheme designed to achieve an unlawful objective”). However, “[i]t is not necessary to find an express agreement in order to find a conspiracy. It is enough that a concert of action is contemplated and that the defendants conformed to this agreement.” Ambook Enters, v. Time, Inc., 612 F.2d 604, 614 (2d Cir.1979); accord Nas-daq, 894 F.Supp. at 713. Thus, a complaint will withstand scrutiny on a motion to dismiss if it alleges facts that could support an inference of an unlawful agreement. An inference of a horizontal price-fixing agreement can be drawn in the absence of direct “smoking gun” evidence “when such interdependent conduct is accompanied by circumstantial evidence and plus factors such as defendants’ use of facilitating practices. Information exchange is an example of a facilitating practice that can help support an inference of a price-fixing agreement.” Todd, 275 F.3d at 198 (citations omitted); accord Apex Oil Co. v. DiMauro, 822 F.2d 246, 254 (2d Cir.1987); Nasdaq, 894 F.Supp. at 713. Conscious parallelism in pricing is one such circumstance that can provide for an inference of an antitrust conspiracy. Apex, 822 F.2d at 254; Nasdaq, 894 F.Supp. at 713. The Second Circuit has held that to infer a conspiracy from parallel pricing “a plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunction[ ] with the parallel acts, can serve to allow a fact-finder to infer a conspiracy.” Apex, 822 F.2d at 253-54; accord Nasdaq, 894 F.Supp. at 713. “ ‘Plus factors’ identified by courts, which, in combination with parallel pricing, may support an inference of conspiracy, include a common motive to conspire, actions which were against [the conspirators’] own individual business interests absent an illicit agreement, and evidence of coercion.” Nasdaq, 894 F.Supp. at 713-14 (collecting cases). The Second Circuit has also found that “a high level of" }, { "docid": "8848373", "title": "", "text": "at 2590. At the same time, the Court acknowledged that however unlikely th[e] possibility [of such a scheme’s success] may be as a general matter, when the realities of the market and the record facts indicate that it has occurred and was likely to have succeeded, theory will not stand in the way of liability. Id. at 229, 113 S.Ct. at 2591 (citation omitted). Accordingly, an agreement may be proven, even absent proof that it was made express, when, in addition to proof of parallel pricing, there are present additional “plus factors” from which such an inference properly could be made. See Interstate Circuit v. United States, 306 U.S. 208, 222-23, 59 S.Ct. 467, 472-73, 83 L.Ed. 610 (1939). These plus factors include: (1) evidence of conduct that is contrary to the defendants’ independent self-interest; (2) the presence or absence of a strong motive to enter into the alleged conspiracy; (3) the artificial standardization of products; and (4) a high level of interfirm communications. See Apex Oil Co. v. Di-Mauro, 822 F.2d at 254; E.I. DuPont de Nemours, 729 F.2d at 139 n. 10 (citations omitted). Thus, although evidence of parallel conduct between competitors alone is insufficient to prove an agreement or conspiracy, an agreement may properly be inferred from conscious parallelism when these “plus factors” are present. Here, plaintiffs claim that in addition to parallel pricing there is evidence of a number of “plus factors,” including the exchange of future price increase information, advance notice of future price increases, dissemination of current price information, and contacts and communications between defendants. Defendants note in response that the “mere opportunity to conspire does not by itself support the inference that an illegal combination actually occurred.” Capital Imaging Assoc., P.C. v. Mohawk Valley Med. Assoc., Inc., 996 F.2d at 545; see also Oreck Corp. v. Whirlpool Corp., 639 F.2d at 79. They also argue something different by noting that each of the “plus factors” considered independently, such as the dissemination or gathering of price-related information, does not constitute a violation of the Sherman Act. See United States v. Citizens & S. Nat." }, { "docid": "1353861", "title": "", "text": "of a price-fixing agreement.” Todd, 275 F.3d at 198 (citations omitted); accord Apex Oil Co. v. DiMauro, 822 F.2d 246, 254 (2d Cir.1987); Nasdaq, 894 F.Supp. at 713. Conscious parallelism in pricing is one such circumstance that can provide for an inference of an antitrust conspiracy. Apex, 822 F.2d at 254; Nasdaq, 894 F.Supp. at 713. The Second Circuit has held that to infer a conspiracy from parallel pricing “a plaintiff must show the existence of additional circumstances, often referred to as ‘plus’ factors, which, when viewed in conjunction[ ] with the parallel acts, can serve to allow a fact-finder to infer a conspiracy.” Apex, 822 F.2d at 253-54; accord Nasdaq, 894 F.Supp. at 713. “ ‘Plus factors’ identified by courts, which, in combination with parallel pricing, may support an inference of conspiracy, include a common motive to conspire, actions which were against [the conspirators’] own individual business interests absent an illicit agreement, and evidence of coercion.” Nasdaq, 894 F.Supp. at 713-14 (collecting cases). The Second Circuit has also found that “a high level of interfirm communications” is an additional “plus factor.” Apex, 822 F.2d at 253-54; accord In re Plywood Antitrust Litigation, 655 F.2d 627, 633-37 (5th Cir.1981). At the motion to dismiss stage, the complaint must merely allege the “legal and factual theory upon which [the] claim of interdependent conscious parallelism rests.” Nasdaq, 894 F.Supp. at 714 (quoting Levitch v. Columbia Broad. Sys., Inc., 495 F.Supp. 649, 675 (S.D.N.Y.1980)). Thus, viewing the Complaint liberally and as a whole, plaintiffs have alleged sufficient facts to permit a fact-finder to infer that the defendants conspired to set the prices of currency conversion fees as alleged in Count I. Specifically, plaintiffs have alleged that defendants have acted in a parallel fashion, namely that shortly after VISA announced its intention to impose a currency conversion fee, MasterCard changed its original plans for a smaller fee and decided to charge the same amount as VISA. (Comply 110.) According to plaintiffs, defendants charge a minimum 1% currency conversion fee and also impose an additional second tier fee at a higher rate. (Compl.¶¶ 91, 101," }, { "docid": "276471", "title": "", "text": "collusive market dynamic”). The D.C. Circuit has held that to show that parallel behavior is not the result of independent conduct, the plaintiff must (1) show that the “acts by the defendants [are] in contradiction of their own economic interests,” and (2) make a “satisfactory demonstration of a motivation to enter into a conspiracy.” Kreuzer, 735 F.2d at 1488 n. 12.; see also Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n, 663 F.2d 253, 267 (D.C.Cir.1981) (noting that “parallel behavior may support an inference of conspiracy when the alleged co-conspirators have acted in a way inconsistent with independent pursuit of economic self-interest, [but] that inference is warranted only when a theory of rational, independent action is less attractive than that of concerted action”); see also Lukens Steel Co., 454 F.Supp. at 1190-1191. But see Petruzzi’s IGA Supermarkets, Inc., 998 F.2d at 1242 (Third Circuit opinion noting that a range of circumstantial evidence can be a plus factor, “ ‘[f]or example, have they attended meetings or conducted discussions at which they had the opportunity to conspire; have they acted against their own economic best interests; have they engaged in parallel behavior that is economically irrational unless an agreement exists; has at least one participant expressly invited common action by the other’ ”) (quoting William C. Holmes, 1992 Antitrust Law Handbook § 1.03[3], at 154). Generally, conspiracy by conscious parallelism is unlikely because it is difficult to achieve coordination without an express agreement. See, e.g., Brooke Group Ltd., 509 U.S. at 239-240, 113 S.Ct. 2578. Some types of markets, however, lend themselves better to consciously parallel behavior. “Tacit coordination is facilitated by a stable market environment, fungible products, and a small number of variables upon which the firms seeking to coordinate their pricing may focus.” Id. at 238, 113 S.Ct. 2578. Susceptible markets also have inelastic demand, customers with low bargaining power and a homogenous product. See Petruzzi’s IGA Supermarkets, Inc., 998 F.2d at 1232. Here, representatives of each of the gas-producing defendants have submitted affidavits swearing that no conspiracy exists and that each company sets its prices independently. (Defs.’ Opp’n, Ex." }, { "docid": "21531426", "title": "", "text": "or factors required to be proved as a prerequisite to finding that parallel action amounts to a conspiracy.” Areeda, Antitrust Law § 1433(e). They are necessary conditions for the conspiracy inference. Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1314 (3d Cir.1975); Aree-da, § 1434. They show that the allegedly wrongful conduct of the defense was conscious and not the result of independent business decisions of the competitors. The plus factors may include, and often do, evidence demonstrating that the defendants: (1) acted contrary to their economic interests, and (2) were motivated to enter into a price fixing conspiracy. See Petruzzi’s, 998 F.2d at 1242. The concept of “action against self-interest” is ambiguous and one of its meanings could merely constitute a restatement of interdependence. As the court pointed out in Coleman v. Cannon Oil Company, 849 F.Supp. 1458, 1467 (N.D.Ala.1993), refusing to raise or lower prices unless rivals do the same could be against a firm’s self-interest but nevertheless could spring from independent behavior. Similarly, conspiratorial motivation is ambiguous because it “can describe mere interdependent behavior and, therefore, it could mean that interdependent behavior is a Sherman Act Section 1 conspiracy.” Areeda, § 1434(c). Thus, no conspiracy should be inferred from ambiguous evidence or from mere parallelism when defendants’ conduct can be explained by independent business reasons. Once the plaintiffs have presented evidence of the defendants’ consciously parallel pricing and supplemented this evidence with plus factors, a rebuttable presumption of conspiracy arises. Todorov, 921 F.2d at 1456 n. 30. “[T]he mere presence of one or more of these ‘plus factors’ does not necessarily mandate the conclusion that there was an illegal conspiracy between the parties, for the court may still conclude, based upon the evidence before it, that the defendants acted independently of one another, and not in violation of antitrust laws.” Balaklaw v. Lovell, 822 F.Supp. 892 (N.D.N.Y.1993); Todorov, 921 F.2d at 1456 n. 30. In an effort to reinforce their claim of collusive prieefixing, plaintiffs presented the testimony of an expert for the purpose of showing a pattern of parallel price increases in each" }, { "docid": "8848372", "title": "", "text": "whether there is an antitrust conspiracy. However, parallel conduct alone will not suffice as evidence of such a conspiracy even if the defendants ‘knew the other defendant companies were doing likewise.’ More must be shown.”) (citation omitted), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987); E.I. DuPont de Nemours & Co. v. F.T.C., 729 F.2d 128 139 (2d Cir.1984) (“The mere existence of an oligopolistic market structure in which a small group of manufacturers engage in consciously parallel pricing of an identical product does not violate the antitrust laws. ... [Pjrice uniformity is normal in a market with few sellers and homogeneous products.”) (citing Theatre Enter. v. Paramount Film Dist. Corp., 346 U.S. at 539-41, 74 S.Ct. at 259). More recently, the Supreme Court has recognized with regard to predatory pricing, which may be orchestrated similarly to parallel pricing, that “this anticompetitive minuet is most difficult to compose and to perform, even for a disciplined oligopoly.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. at 228, 113 S.Ct. at 2590. At the same time, the Court acknowledged that however unlikely th[e] possibility [of such a scheme’s success] may be as a general matter, when the realities of the market and the record facts indicate that it has occurred and was likely to have succeeded, theory will not stand in the way of liability. Id. at 229, 113 S.Ct. at 2591 (citation omitted). Accordingly, an agreement may be proven, even absent proof that it was made express, when, in addition to proof of parallel pricing, there are present additional “plus factors” from which such an inference properly could be made. See Interstate Circuit v. United States, 306 U.S. 208, 222-23, 59 S.Ct. 467, 472-73, 83 L.Ed. 610 (1939). These plus factors include: (1) evidence of conduct that is contrary to the defendants’ independent self-interest; (2) the presence or absence of a strong motive to enter into the alleged conspiracy; (3) the artificial standardization of products; and (4) a high level of interfirm communications. See Apex Oil Co. v. Di-Mauro, 822 F.2d at 254; E.I." }, { "docid": "23631138", "title": "", "text": "plaintiffs basing a claim of collusion on inferences from consciously parallel behavior show that certain “plus factors” also exist. See In re Baby Food, 166 F.3d at 122; Petruzzi’s, 998 F.2d at 1243. Existence of these plus factors tends to ensure that courts punish “concerted action”-an actual agreement-instead of the “unilateral, independent conduct of competitors.” In re Baby Food, 166 F.3d at 122. In other words, the factors serve as proxies for direct evidence of an agreement. The question then becomes, what are “plus factors” that suffice to defeat summary judgment? There is no finite set of such criteria; no exhaustive list exists. See Id.; Areeda, supra, ¶ 1434a, at 241-42. We have identified, however, at least three such plus factors: (1) evidence that the defendant had a motive to enter into a price fixing conspiracy; (2) evidence that the defendant acted contrary to its interests; and (3) “evidence-implying a traditional conspiracy.” Petruzzi’s, 998 F.2d at 1244. In the context of parallel pricing, the first two factors largely restate the phenomenon of interdépendence. We candidly acknowledged as much in In re Baby Food, 166 F.3d at 122. See also Areeda, supra, ¶ 1434cl, at 245 (“ ‘[Cjonspiratorial motivation’ and ‘acts against self-interest’ often do no more than restate interdependence.”)'; Posner, supra, at 100. Evidence that the defendant had a motive to enter into a price fixing conspiracy means evidence that the industry is conducive to oligopolistic price fixing, either interdependently or through a more express'form of collusion. In other words, it is “evidence that the structure of the market was such as to make secret price fixing feasible.” In re High Fructose Com Syrup Antitrust Litigation, 295 F.3d 651, 655 (7th Cir.2002). Evidence that the defendant acted contrary to its interests means evidence of conduct that would be irrational assuming that the defendant operated in a competitive market. In a competitive industry, for example, a firm would cut its price with the hope of increasing its market share if its competitors were setting prices above marginal costs. Put differently* in analyzing this factor a court looks to “evidence that the" }, { "docid": "20625431", "title": "", "text": "cases in which there is obvious parallel conduct and the question is whether it is the product of coordinated or unilateral decision making, a plaintiff must allege additional facts that point toward a meeting of the minds. Twombly, 550 U.S. at 557, 127 S.Ct. 1955. Even conscious parallelism in pricing among competitors is not itself unlawful. Id. at 553-54, 127 S.Ct. 1955; In re Publ’n Paper, 690 F.3d at 62. By engaging in conscious parallelism, firms in a concentrated market may lawfully recognize shared economic interests and, in effect, lawfully exercise market power by setting their prices at a profit maximizing, supra-competitive level. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227-28, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). “Plus-factors” may provide the additional circumstances necessary to permit a fact-finder to infer a conspiracy. Examples of plus-factors are a common motive to conspire, actions taken against economic self-interest, and a high level of inter-firm communications. In re Publ’n Paper, 690 F.3d at 62; see also Apex Oil Co. v. DiMauro, 822 F.2d 246, 253-54 (2d Cir.1987) (suggesting that allegations that are consistent only with market actors who are aware of and anticipate similar actions by competitors would be insufficient to support the existence of a tacit agreement). In both the JAC and the TAC plaintiffs cite a number of emails and documents from which they assert support an inference of an existing conspiracy. (E.g., JAC ¶¶ 2, 6, 7-8, 15; TAC ¶¶ 473, 476, 479-85, 488, 510, 512-22, 526-27, 529, 531, 533, 537-49, 565-66, 592-96, 605-07.) Plaintiffs cite documents which they assert show that Metro was at the heart of the alleged conspiracy and to have been more active than any other participant. The law does not require that all conspirators have the same level of involvement in a conspiracy, nor that they be involved at precisely the same time or for the same duration. See United States v. Nusraty, 867 F.2d 759, 763 (2d Cir.1989). Plaintiffs also cite documents they argue support an inference that Metro understood and intended that load-out delays would result in" }, { "docid": "12975876", "title": "", "text": "Appeals decision in Amex TV. See Amex IV, 547 F.3d at 148. Second, in contrast to the record that was before this Court when it ruled in CCF IV and Amex I, Plaintiffs have submitted extensive additional factual evidence demonstrating that they have and can continue to adequately and zealously protect the interests of the entire proposed class regardless of issuing bank. See Capitol Records, Inc. v. MP3tunes, LLC, No. 07 Civ. 9931(WHP), 2009 WL 3364036, at *5-6 (S.D.N.Y. Oct.16, 2009) (departing from the law of the case based on new evidence); see also Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999) (“District judges have broad discretion over class definition[,] ... courts are required to reassess their class rulings as the case develops.” (internal quotation marks omitted)). Moreover, a facet of Plaintiffs’ economic evidence is that the alleged conspiracy possessed market power. While not an element of a price-fixing conspiracy claim, it could enable Plaintiffs to show that price fixing was feasible in this market. See In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 655 (7th Cir.2002) (noting that economic evidence that the market structure made price fixing feasible or that the market overall behaved in a noncompetitive manner is important in cases where the noneconomic evidence of collusion is “suggestive rather than conclusive”). This creates a strong incentive for Plaintiffs to prove participation by all (or by as many as possible) of the MDL Defendant Banks in the alleged conspiracy. And the evidence Plaintiffs submit shows that they are endeavoring to do so. Finally, the great weight of authority in price-fixing conspiracy cases, absent special circumstances such as arbitration, holds that the victim of one alleged co-conspirator is adequate to prove liability for victims of all co-conspirators. See In re Vitamins Anti trust Litig., 209 F.R.D. 251, 262 (D.D.C.2002) (“[B]eeause the plaintiffs have alleged an overarching single conspiracy ... all named plaintiffs will have the same incentive to the case as an absentee class member. This incentive is in no way diminished by the fact that ... the named representatives may have used" } ]

[ { "docid": "3597722", "title": "", "text": "PER CURIAM: This appeal concerns denial of a petition for writ of habeas corpus because petitioner failed to exhaust his administrative remedies. We affirm. Petitioner Ivan Gonzalez was convicted on one count of possession with intent to distribute three kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On December 29, 1988 he was sentenced pursuant to pre-guidelines law to five years imprisonment and four years of supervised release. The U.S. Parole Commission calculated a presumptive parole date of May 30, 1990. The U.S. Bureau of Prisons did not, however, release petitioner on this date, and he remains incarcerated. In February 1991 Gonzalez filed in the district court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He asserted that because his presumptive release date had passed, he need not exhaust his administrative remedies before seeking relief from the district court. Courts have original jurisdiction over imposition of a sentence. The Bureau of Prisons is, however, responsible for computing that sentence and applying appropriate good time credit. U.S. v. Martinez, 837 F.2d 861, 865-66 (9th Cir.1988). The Bureau of Prisons has established regulations that set forth the procedures that a prisoner must follow before seeking relief from a district court. U.S. v. Lucas, 898 F.2d 1554, 1556 (11th Cir.1990). Exhaustion of administrative remedies is jurisdictional. Id. Petitioner relies upon cases in which the court resentenced a defendant. Those cases do not deal with computation of sentences by administrative agencies. See e.g., U.S. v. Whittington, 918 F.2d 149 (11th Cir.1990); U.S. v. Jones, 722 F.2d 632 (11th Cir.1983). AFFIRMED. . Gonzalez appealed his conviction, challenging the district court’s denial of his request for a supplemental jury instruction. He did not challenge his sentence. This court affirmed the conviction. U.S. v. Gonzalez, 886 F.2d 1324 (11th Cir. Aug. 28, 1989)." } ]

[ { "docid": "12598960", "title": "", "text": "649 (“The unambiguous jurisdictional terms of §§ 2253(a), (b), and (c)(1) show that Congress would have spoken in clearer terms if it intended § 2253(c)(3) to have similar jurisdictional force. Instead, the contrast underscores that the failure to obtain a COA is jurisdictiorial, while a COA’s failure to indicate an issue is not.”). For all of those reasons, we conclude that our Gonzalez decision is a purely posthumous precedent. It is no longer the law of this circuit that exhaustion of administrative remedies is a jurisdictional requirement in a § 2241 proceeding. Of course, that does not mean that courts may disregard a failure to exhaust and grant relief on the merits if the respondent properly asserts the defense. Skinner, 355 F.3d at 1295 (“We agree with the reasoning of our sister circuits and hold that prisoners seeking habeas relief, including relief pursuant to §• 2241, are subject to administrative exhaustion requirements.”). The exhaustion requirement is still a requirement; it’s just not a jurisdictional one. What its non-jurisdictional nature means is that a court need not inquire into exhaustion on its own. A court has the discretion to accept or reject a concession from the respondent that administrative remedies have been exhausted. See Roberts v. Galen of Va., Inc., 525 U.S. 249, 253, 119 S.Ct. 685, 687, 142 L.Ed.2d 648 (1999) (“[T]he concession of a point on appeal by respondent is by no means dis-positive of a legal issue----”); United States v. Harris, 608 F.3d 1222, 1226 (11th Cir.2010) (accepting the government’s concession that a criminal defendant’s prior conviction was a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(i)); United States v. Linville, 228 F.3d 1330, 1331 n. 2 (11th Cir.2000) (refusing to accept the government’s concession of error on the ground that “[w]e are not required to accept such a concession when the law and the record do not justify it”). And because exhaustion is non-jurisdictional, even when the defense has been preserved and asserted by the respondent throughout the proceeding, a court may skip over the exhaustion issue if it is easier to deny (not grant, of course, but" }, { "docid": "12598950", "title": "", "text": "due process claim failed on the merits. The district court adopted the magistrate judge’s report and recommendation and denied Santiago-Lugo’s petition. II. We review de novo the. district court’s denial of a § 2241 petition, but review its factfindings for clear error. Bowers v. Keller, 651 F.3d 1277,1291 (11th Cir.2011). We are obligated to determine whether the district court had subject matter jurisdiction to consider SantiagoLugo’s § 2241 petition and whether we have jurisdiction to hear his appeal. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir.2007). This Court and the district court must have subject matter jurisdiction over a claim in order to decide it on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102,118 S.Ct. 1003, 1012-16, 140 L.Ed.2d 210 (1998) (instructing that Article III courts must first ensure that they have subject matter jurisdiction over a cause of action before addressing its merits). We start with the jurisdiction issue, asking whether a § 2241 petitioner’s failure; to exhaust administrative remedies is a jurisdictional defect. We conclude that it is not, meaning that even if Santiago-Lugo failed to exhaust his administrative remedies, we and the district court would still have jurisdiction over his claim. The district court reached the opposite conclusion by relying on five decisions from this Court. See Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.2004); Winck v. England, 327 F.3d 1296, 1306 (11th Cir.2003); Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992); United States v. Lucas, 898 F.2d 1554, 1555 (11th Cir.1990); United States v. Mitchell, 845 F.2d 951, 952 (11th Cir.1988). Of those five decisions, only our opinion in Gonzalez actually held that failure to exhaust administrative remedies deprives a court of subject matter jurisdiction over a § 2241 petition, and it only ipse dixited that “[ejxhaustion of administrative remedies is jurisdictional.” 959 F.2d at 212. And Gonzalez reached that conclusion not because § 2241 actually addressed the scope of our jurisdiction over § 2241 petitions, but because we had held in other decisions that exhaustion that was explicitly required by the governing statutes" }, { "docid": "12598965", "title": "", "text": "U.S.C. § 1997e(a). It did not hold, however, that an inmate’s failure to exhaust administrative remedies deprived courts of subject matter jurisdiction over a 28 U.S.C. § 2241 petition or any other type of claim. . Skinner and \"Winck mention Gonzalez’s holding only in dicta. Skinner, 355 F.3d at 1295; \"Winck, 327 F.3d at 1300 n. 1. Lucas and Mitchell predate Gonzalez and do not address § 2241 petitions at all. Lucas, 898 F.2d at 1555; Mitchell, 845 F.2d at 952-53. . Beginning in 2005, 13 years after Gonzalez was decided, Congress enacted a series of amendments to § 2241 aimed at limiting the jurisdiction of courts to hear § 2241 petitions brought by aliens detained as enemy combatants. See Pub.L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2742 (2005); Pub.L. No. 109-163, § 1405(e)(1), 119 Stat. 3136, 3477 (2006); Pub.L. No. 109-366, § 7(a), 120 Stat. 2600, 2635 (2006); Pub.L. No. 110-181, § 1063(f), 122 Stat. 3, 323 (2008). That statutory jurisdictional bar erected by Congress in those amendments, currently found in 18 U.S.C. § 2241(e), is different from the judge-made jurisdictional bar against unexhausted § 2241 petitions set forth in Gonzalez. The latter bar, which has no statutory home, is the only one at issue in the present case. . That Thaler dealt with a different section of the habeas corpus statute and Reed Elsevier dealt with a different statute altogether does not undermine our conclusion that those two decisions abrogated Gonzalez. See United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir.2010) (holding that one of our prior panel precedents involving the Armed Career Criminal Act was undermined to the point of abrogation by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), even though Shepard dealt with a different provision of that Act); United States v. Lopez, 562 F.3d 1309, 1312 (11th Cir.2009) (holding that one of our prior panel precedents about when criminal filing deadlines are jurisdictional was abrogáted by Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), even though Bowles dealt with civil filing" }, { "docid": "22794199", "title": "", "text": "v. Reno, 278 F.Supp.2d 284, 294 (D.Conn.2003) (“[UJnder the St. Cyr decisions, and the Second Circuit’s decision in Rankine [v. Reno, 319 F.3d 93, 100 (2d Cir.2003) ], it is clear that the holding of Buitrago-Cuesta must be read narrowly to allow retroactive application only in cases where the alien defendant’s conviction is the result of a trial.”). In addition, the fact that Theodoropou-los was deported the day after his § 2241 petition was filed raises the question of whether there is still a live “case or controversy” before us. See U.S. Const. Art. III, § 2; cf. Perez v. Greiner, 296 F.3d 123, 125, 126 (2d Cir.1999) (dismissing appeal of habeas challenge to criminal conviction as moot where petitioner had been deported during pendency of appeal and no collateral consequences sufficient to satisfy “case or controversy” requirement could be discerned); United States v. Mercurris, 192 F.3d 290, 294-95 (2d Cir.1999) (dismissing criminal appeal following defendant’s deportation where no concrete collateral consequences could be discerned). Finally, during the pendency of Theodo-ropoulos’s appeal, this court has definitively rejected Theodoropoulos’s constitutional claim on the merits. See Rankine v. Reno, 319 F.3d 93, 100 (2d Cir.2003) (holding that retrospective application of IIRIRA’s repeal of § 212(c) to aliens who, like Theodo-ropoulos, were convicted following a jury trial prior to the elimination of § 212(c) is not impermissibly retroactive). We do not reach any of these issues, however, because we determine that Theo-doropoulos’s failure to exhaust his administrative remedies deprived the district court of subject matter jurisdiction to entertain his habeas petition. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“[When the lower federal court] laek[s] jurisdiction, [the appellate court has] jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.”) (internal quotation marks omitted) (first two alterations in original); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (holding that “there is no unyielding jurisdictional hierarchy” with" }, { "docid": "11750899", "title": "", "text": "(3). Some federal courts have concluded that legislation recently enacted by Congress has stripped the federal courts of their power to exercise jurisdiction under § 2241 over the habeas corpus petitions of deportable and excludable aliens. See, e.g., LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir.1998); Richardson v. Reno, 162 F.3d 1338, 1357 (11th Cir.1998). However, the United States Court of Appeals for the First Circuit has adopted a contrary view of that recent legislation. In Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998), the Court of Appeals held that neither the AEDPA nor the IIRIRA deprived the federal courts of § 2241 jurisdiction over the habeas corpus petitions of persons ordered excluded or deported from the United States. See id. at 123. Other federal courts have agreed. See Sandoval v. Reno, 166 F.3d 225, 237 (3d Cir.1999); Henderson v. INS, 157 F.3d 106, 118-22 (2d Cir.1998); Magana-Pizano v. INS, 152 F.3d 1213, 1221-22 (9th Cir.1998) (per curiam); Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2d Cir.1998); Lee v. Reno, 15 F.Supp.2d 26, 37-39 (D.D.C.1998); Tam v. INS, 14 F.Supp.2d 1184, 1187-88 (E.D.Cal.1998); Barrett v. INS, 997 F.Supp. 896, 900 (N.D.Ohio 1998); Gutierrez-Martinez v. Reno, 989 F.Supp. 1205, 1209 (N.D.Ga.1998); Morisath v. Smith, 988 F.Supp. 1333, 1338-39 (W.D.Wash.1997); Mojica v. Reno, 970 F.Supp. 130, 157 (E.D.N.Y.1997). Therefore, this Court has the power to continue to exercise jurisdiction over habeas corpus petitions filed by aliens pursuant to the statutory grant codified at 28 U.S.C. § 2241. B. Exhaustion of Administrative Remedies Respondents also argue that this Court should decline to hear Hermanow- ski’s plea because he failed to pursue an administrative appeal of the District Director’s denial of bail. This argument is without merit. Hermanowski’s failure to exhaust his administrative remedies does not hamper this Court’s ability to exercise jurisdiction over his Amended Petition for a Writ of Habeas Corpus. The United States Supreme Court has explained: ‘Where Congress specifically mandates, exhaustion is required. But where Congress has not clearly required exhaustion, sound judicial discretion governs.” McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)" }, { "docid": "12598949", "title": "", "text": "it was not his fault that the appeal was untimely. But a unit manager at the Federal Correctional Institution at Talladega, Alabama — the prison to which Santiago-Lugo had been transferred after the initial discipline decision — would not give him the letterhead. The unit manager explained that he could not do so because Santiago-Lugo had not been a prisoner at Talladega when he first requested an administrative remedy. Santiago-Lugo filed no further appeals with the BOP. On December 10, 2012, Santiagoytugo filed a 28 U.S.C. § 2241 habeas corpus petition in the United States District Court for the Northern District of Alabama. The petition, as later amended, sought relief on due process grounds from the disciplinary sanctions that Santiago-Lugo had received because of the cell phone infraction. A magistrate judge issued a report recommending that the amended petition be denied for two reasons. First, Santiago-Lugo had failed to exhaust his administrative remedies, so the district court lacked jurisdiction to hear his petition. Second, even if the court had jurisdiction to hear his petition, Santiago-Lugo’s due process claim failed on the merits. The district court adopted the magistrate judge’s report and recommendation and denied Santiago-Lugo’s petition. II. We review de novo the. district court’s denial of a § 2241 petition, but review its factfindings for clear error. Bowers v. Keller, 651 F.3d 1277,1291 (11th Cir.2011). We are obligated to determine whether the district court had subject matter jurisdiction to consider SantiagoLugo’s § 2241 petition and whether we have jurisdiction to hear his appeal. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir.2007). This Court and the district court must have subject matter jurisdiction over a claim in order to decide it on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102,118 S.Ct. 1003, 1012-16, 140 L.Ed.2d 210 (1998) (instructing that Article III courts must first ensure that they have subject matter jurisdiction over a cause of action before addressing its merits). We start with the jurisdiction issue, asking whether a § 2241 petitioner’s failure; to exhaust administrative remedies is a jurisdictional defect. We" }, { "docid": "8882451", "title": "", "text": "April 27,1998. Boz has remained in custody since some time in 1997 and has been awaiting his removal from the United States since April 1998. In June 1999, more than a year after his removal order had become final, Boz filed a pro se petition for writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2241. In his petition, Boz challenged not the order to remove him from the United States, but rather his indefinite, continued incarceration in the United States. The district court dismissed Boz’s petition for lack of subject matter jurisdiction, and Boz appeals. II. DISCUSSION The district court determined that 8 U.S.C. § 1252(g), which limits judicial review of the removal of aliens, foreclosed habeas relief in this case. We affirm the district court’s determination that it lacked jurisdiction to hear Boz’s appeal, but for a different reason. Consequently, we do not address whether INA § 242(b)(9), 28 U.S.C. § 1252(b)(9) removes the district court’s jurisdiction to hear Boz’s appeal. The district court did not have jurisdiction to hear Boz’s petition because Boz has not exhausted the administrative remedies available to him. See Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (“Exhaustion of administrative remedies is jurisdictional.”). “The general rule is that a challenge to agency actions in the courts must occur after available administrative remedies have been pursued.” Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1561 (11th Cir.1989). However, a petitioner need not exhaust his administrative remedies “where the administrative remedy will not provide relief commensurate with the claim.” Id. The record before us indicates that Boz has not exhausted the administrative remedies available to him and that those remedies may provide the relief he seeks. Once an alien has been ordered removed, the INS has ninety days in which to detain the alien and remove him. See 8 U.S.C. § 1231. This initial ninety days is known as the “removal period.” The Attorney General has the authority to detain an alien beyond the ninety-day removal period for a number of reasons, including if the alien has been" }, { "docid": "16916241", "title": "", "text": "of the Fifth Amendment as well as to certain statutory protections, the district court concluded that those rights were personal to the petitioners and, as such, had to be exhausted administratively before the courts could become involved. Id. This timely appeal ensued. In it, the petitioners assign error to the lower court’s ■ conclusion that it lacked subject matter jurisdiction over their claims and relatedly, to its conclusion that the petitioners are only entitled to judicial review on an individualized basis after exhausting their administrative remedies. Overall, the petitioners urge us to hold that they have stated cognizable claims that are ripe for judicial review and that their action should, therefore, be allowed to proceed in the district court. II. Conscious of our role as a court of limited jurisdiction, we begin our analysis with the multi-part question of whether and to what extent the district court possessed subject matter jurisdiction to hear the petitioners’ claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946). We then turn to the surviving claims. We review a district court’s dismissal for want of subject matter jurisdiction de novo. See, e.g., Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 16 (1st Cir.2006). For that purpose, we give weight to the well-pleaded factual averments in the operative pleading (here, the petitioners’ amended complaint) and indulge every reasonable inference in the pleader’s favor. See Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir.2003). Where, however, those facts are illuminated, supplemented, or even contradicted by other materials in the district court record, we need not confine our jurisdictional inquiry to the pleadings, but may consider those other materials. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.2004); Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002). Our solution to the jurisdictional puzzle may be original, that is, we may affirm an order of dismissal on any ground made apparent by the" }, { "docid": "16606914", "title": "", "text": "authority to permit the exceptions to the exhaustion doctrine to swallow the rule. Id. Thus, we conclude that Winek’s petition is not subject to any of the recognized exceptions to the exhaustion principle he relies on, and, therefore, his petition is barred for failure to exhaust his military remedies. III. CONCLUSION We hold that, while we have jurisdiction to review the merits of a habeas corpus petition brought by a service member seeking to effect his discharge from the military on the terms of his enlistment contract, we will decline to exercise it where the petitioner has failed to exhaust his intramilitary administrative remedies, unless there is some legitimate and compelling reason to excuse the failure. Also, where the interests of comity and our own precedent so counsel, we may consider exhaustion as a defense in this context, even if raised for the first time on appeal. Finally, in determining whether the failure to exhaust is excused under the recognized exception of avoiding irreparable harm to the petitioner, we look to the potential harm that exists at the time we would otherwise require the petitioner to exhaust his administrative remedies, and not necessarily to the time the original petition was filed. In this case, the petitioner failed to appeal his case to the BCNR and no recognized exceptions to the exhaustion requirement apply. Accordingly, we REVERSE the district court’s order granting a writ of habeas corpus, and REMAND with instructions to dismiss without preju dice so that the petitioner may exhaust his military remedies. . By contrast, \"[e]xhaustion of administrative remedies is jurisdictional,” when a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241 for release from a federal prison. Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (per curiam). Also jurisdictional is \"[t]he general rule ... that a challenge to agency actions in the courts must occur after available administrative remedies have been pursued.” Boz v. United States, 248 F.3d 1299, 1300 (11th Cir.2001) (per cu-riam) (internal quotation marks and citation omitted); see also United States v. Lucas, 898 F.2d 1554, 1556" }, { "docid": "23234918", "title": "", "text": "in determining that the PLRA applied to Skinner’s habeas petition. We, like several other circuits, have held that the PLRA does not apply to habeas petitions because (1) habeas petitions are not traditional civil actions; (2) Congress designed the PLRA to reduce frivolous civil actions from prisoners; and (3) the Anti-terrorism and Effective Death Penalty Act (AEDPA), which affects habeas petitions and motions to vacate, was enacted two days after the PLRA. See Anderson v. Singletary, 111 F.3d 801, 803-05 (11th Cir. 1997) (holding that the PLRA’s filing fee provisions do not apply in §§ 2254 and 2255 petitions); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.2001) (stating that the PLRA does not apply to § 2241 petitions); Walker v. O’Brien, 216 F.3d 626, 633-34, 636-37 (7th Cir.2000) (holding that the PLRA does not apply to § 2241 and § 2254 petitions); Blair-Bey v. Quick, 151 F.3d 1036, 1040-42 (D.C.Cir.1998) (holding that the PLRA filing fee provisions do not apply to habeas petitions); Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir.1998) (holding that the PLRA does not apply to § 2241 petitions); McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (same). We have not conclusively determined whether, despite the PLRA’s inapplicability to habeas petitions, a prisoner is still required to exhaust his administrative remedies in all habeas cases. See Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (holding that prisoner who was denied parole was required to exhaust administrative remedies prior to filing § 2241 petition because “[ejxhaustion of administrative remedies is jurisdictional”); see also Irwin v. Hawk, 40 F.3d 347, 349 n. 2 (11th Cir.1994) (detailing the Bureau of Prisons’ administrative remedy procedures and requiring a prisoner to exhaust his claim administratively when seeking injunctive relief). Our sister circuits, however, have consistently held that prisoners must exhaust administrative remedies before habeas relief can be granted. Carmona, 243 F.3d at 630, 632, 634 (addressing § 2241 petition); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994) (addressing § 2241 petition); Little v. Hopkins, 638 F.2d 953," }, { "docid": "16129892", "title": "", "text": "adjudicate at all.” Id. at 1273. Significantly, this is wholly consonant with the Supreme Court’s admonition in Kontrick that the label “jurisdictional” should be reserved only for those prescriptions delineating the court’s adjudicatory authority over classes of cases and persons. See Kontrick, 540 U.S. at 455,124 S.Ct. 906. It should not be applied to prescriptions (or proscriptions) limiting a court’s actions in a case in which the court’s underlying authority to decide the matter is unquestioned. Most recently, in Santiago-Lugo v. Warden, 785 F.3d 467, 471 (11th Cir. 2015), we determined that the Supreme Court had abrogated our prior case law holding that a habeas petitioner’s failure to exhaust all available administrative remedies created a jurisdictional defect. We noted that the “term ‘jurisdiction’ has become ‘a word of many, too many, meanings,’ ” id. at 472 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)), and does not apply to “claim-processing rules” that “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times,” id. (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011)). In short, we said, “where Congress does not say there is a jurisdictional bar, there is none.” Id. at 473 (citing Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161-62, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010)). It is clear that the Supreme Court’s holdings in Kontrick and Eberhart and their rationale have undermined to the point of abrogation our prior holdings that the requirements found in § 851 are jurisdictional in nature. There is no way to reconcile our holding in Harris and the other decisions we have cited with the understanding of what makes a statute “jurisdictional” announced by the Supreme Court. For starters, it is clear that § 851’s notice requirement does not affect the district court’s subject-matter jurisdiction over cases involving offenses against the laws of the United States. To the contrary, that authority is plainly vested in the district courts by" }, { "docid": "16606915", "title": "", "text": "exists at the time we would otherwise require the petitioner to exhaust his administrative remedies, and not necessarily to the time the original petition was filed. In this case, the petitioner failed to appeal his case to the BCNR and no recognized exceptions to the exhaustion requirement apply. Accordingly, we REVERSE the district court’s order granting a writ of habeas corpus, and REMAND with instructions to dismiss without preju dice so that the petitioner may exhaust his military remedies. . By contrast, \"[e]xhaustion of administrative remedies is jurisdictional,” when a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241 for release from a federal prison. Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (per curiam). Also jurisdictional is \"[t]he general rule ... that a challenge to agency actions in the courts must occur after available administrative remedies have been pursued.” Boz v. United States, 248 F.3d 1299, 1300 (11th Cir.2001) (per cu-riam) (internal quotation marks and citation omitted); see also United States v. Lucas, 898 F.2d 1554, 1556 (11th Cir.1990) (per curiam) (action filed pursuant to 18 U.S.C. § 3568 for credit against prisoner's sentence for time spent in custody). . To be clear, we do not suggest, as Winck appears to, that a court may always exercise its discretion in deciding whether to require exhaustion, even where we have previously determined that exhaustion is necessary: [T]he decision whether to require exhaustion is not discretionary in the sense that it can be made solely on the basis of the equities in any given case without regard to authoritative precedent. Rather, judicially-developed exhaustion requirements are \"common law” rules in that the decisions of appellate courts on this issue will govern the subsequent decisions of the lower courts [and other appellate court panels] to which they properly apply. Montgomery v. Rumsfeld, 572 F.2d 250, 254 n. 4 (9th Cir.1978). However, where we have not developed such rules, the outcome of a district court’s exhaustion analysis is reviewed for abuse of discretion. See Doyle, 434 F.2d at 1015; Panola Land Buyers Ass’n v. Shuman, 762 F.2d" }, { "docid": "23234919", "title": "", "text": "486, 490 (5th Cir.1998) (holding that the PLRA does not apply to § 2241 petitions); McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (same). We have not conclusively determined whether, despite the PLRA’s inapplicability to habeas petitions, a prisoner is still required to exhaust his administrative remedies in all habeas cases. See Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (holding that prisoner who was denied parole was required to exhaust administrative remedies prior to filing § 2241 petition because “[ejxhaustion of administrative remedies is jurisdictional”); see also Irwin v. Hawk, 40 F.3d 347, 349 n. 2 (11th Cir.1994) (detailing the Bureau of Prisons’ administrative remedy procedures and requiring a prisoner to exhaust his claim administratively when seeking injunctive relief). Our sister circuits, however, have consistently held that prisoners must exhaust administrative remedies before habeas relief can be granted. Carmona, 243 F.3d at 630, 632, 634 (addressing § 2241 petition); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994) (addressing § 2241 petition); Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.1981) (discussing habeas petitions in general); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850-51 (3rd Cir.1976) (same); Willis v. Ciccone, 506 F.2d 1011, 1014-15, n. 3 (8th Cir.1974) (same). We agree with the reasoning of our sister circuits and hold that prisoners seeking habeas relief, including relief pursuant to § 2241, are subject to administrative exhaustion requirements. Upon review of the record and the parties’ briefs, we conclude that Skinner was required to exhaust his administrative remedies and failed to do so. Because his failure to exhaust administrative remedies resolves this appeal, we decline to discuss the merits of Skinner’s petition. Accordingly, we affirm the judgment of dismissal. AFFIRMED." }, { "docid": "22629051", "title": "", "text": "lacked subject-matter jurisdiction of Gallegos’s § 2241 petition. See Cenante v. United States, 402 Fed.Appx. 886, 887 (5th Cir.2010) (court had subject-matter jurisdiction over § 2241 claim seeking admission into drug rehabilitation program); see also Rublee v. Fleming, 160 F.3d 213, 214-17 (5th Cir.1998); Canajal v. Tombone, 31 Fed.Appx. 155 (5th Cir.2001). B. Now that we have determined that the district court had jurisdiction to consider the claims, we must address the alternative rulings on the merits of the claims because they are now at issue. We thus turn to the question of whether Gallegos was required to exhaust his administrative remedies. We have held that a federal prisoner filing a § 2241 petition must first pursue all available administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993). However, “[ejxceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at 62. 'Here, Gallegos challenges the constitutionality of the BOP regulations. His claim is not that the BOP has erred in its application of the regulation excluding alien detainees from participating in rehabilitation programs and halfway house placements. His argument is that the regulation itself must be struck from the Code of Federal Regulations because it violates the due-process and equal-protection rights, under the United States Constitution, of him and all non-citizens. Thus, it would have been futile for him to make an administrative challenge seeking this relief from those who are charged to enforce the regulation. See Taylor v. United States Treasury Dept., 127 F.3d 470, 477 (5th Cir.1997) (noting exhaustion not required where, inter alia, claimant raises constitutional claim that agency would clearly reject). Our precedent supports Gallegos’s argument and therefore we hold that the district court erred in dismissing these claims for failure to exhaust. Now that the merits of the claims are before us, we will turn to the substance of those claims. C. Gallegos is housed in a facility that segregates" }, { "docid": "12598951", "title": "", "text": "conclude that it is not, meaning that even if Santiago-Lugo failed to exhaust his administrative remedies, we and the district court would still have jurisdiction over his claim. The district court reached the opposite conclusion by relying on five decisions from this Court. See Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.2004); Winck v. England, 327 F.3d 1296, 1306 (11th Cir.2003); Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992); United States v. Lucas, 898 F.2d 1554, 1555 (11th Cir.1990); United States v. Mitchell, 845 F.2d 951, 952 (11th Cir.1988). Of those five decisions, only our opinion in Gonzalez actually held that failure to exhaust administrative remedies deprives a court of subject matter jurisdiction over a § 2241 petition, and it only ipse dixited that “[ejxhaustion of administrative remedies is jurisdictional.” 959 F.2d at 212. And Gonzalez reached that conclusion not because § 2241 actually addressed the scope of our jurisdiction over § 2241 petitions, but because we had held in other decisions that exhaustion that was explicitly required by the governing statutes was jurisdictional with respect to the other inmate claims brought under those statutes. Id. Regardless of how we got there, a number of recent Supreme Court decisions since Gonzalez have undermined it to the point of abrogation. See United States v. Lopez, 562 F.3d 1309, 1312 (11th Cir.2009) (“We remain bound by the rule of our prior precedent unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.”) (quotation marks omitted). The Supreme Court has noted that courts, including it, “have sometimes mischaracterized claim-processing rules or elements of a cause of action as jurisdictional limitations.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S.Ct. 1237, 1243-44, 176 L.Ed.2d 18 (2010). As a result, the term “jurisdiction” has become “a word of many, too many, meanings.” Steel Co., 523 U.S. at 90, 118 S.Ct. at 1010 (quotation marks omitted). Used correctly, “ ‘[jurisdiction’ refers [only] to ‘a court’s adjudicatory authority.’” Reed Elsevier, 559 U.S. at 160, 130 S.Ct. at 1243" }, { "docid": "12598964", "title": "", "text": "charge that was specified in the notice he did receive. Not only are both charges “Greatest Severity Level Prohibited Acts” and subject to the same sanctions, see 28 C.F.R. § 541.3, Table 1 (2015), but the regulations expressly permit a discipline hearing officer to find that an inmate “committed the prohibited act(s) charged, and/or a similar prohibited act{s) as described in the [notice],” id. § 541.8(a)(1) (emphasis added). Santiago-Lugo also asserts that he should have received notice that the “kite” would be used against him at his hearing. But nothing in Wolff’s due process requirements requires advance notice of specific evidence that will be used against a prisoner at a disciplinary hearing. AFFIRMED. . The district court also relied on one Supreme Court decision, see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002), but that reliance was misplaced. The Porter decision held that an inmate had to exhaust administrative remedies before bringing a 42 U.S.C. § 1983 lawsuit under the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a). It did not hold, however, that an inmate’s failure to exhaust administrative remedies deprived courts of subject matter jurisdiction over a 28 U.S.C. § 2241 petition or any other type of claim. . Skinner and \"Winck mention Gonzalez’s holding only in dicta. Skinner, 355 F.3d at 1295; \"Winck, 327 F.3d at 1300 n. 1. Lucas and Mitchell predate Gonzalez and do not address § 2241 petitions at all. Lucas, 898 F.2d at 1555; Mitchell, 845 F.2d at 952-53. . Beginning in 2005, 13 years after Gonzalez was decided, Congress enacted a series of amendments to § 2241 aimed at limiting the jurisdiction of courts to hear § 2241 petitions brought by aliens detained as enemy combatants. See Pub.L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2742 (2005); Pub.L. No. 109-163, § 1405(e)(1), 119 Stat. 3136, 3477 (2006); Pub.L. No. 109-366, § 7(a), 120 Stat. 2600, 2635 (2006); Pub.L. No. 110-181, § 1063(f), 122 Stat. 3, 323 (2008). That statutory jurisdictional bar erected by Congress in those amendments, currently found in 18 U.S.C." }, { "docid": "12598959", "title": "", "text": "of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (Emphasis added.) And § 2241(e)(2) says: [N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (Emphasis added.) Congress knows how to limit courts’ subject matter jurisdiction to decide § 2241 petitions when it wishes to do so. The fact that it did not limit courts’ subject matter jurisdiction to decide unexhausted § 2241 claims compels the conclusion that any failure of Santiago-Lugo to exhaust administrative remedies is not a jurisdictional defect. Cf. Thaler, 132 S.Ct. at 649 (“The unambiguous jurisdictional terms of §§ 2253(a), (b), and (c)(1) show that Congress would have spoken in clearer terms if it intended § 2253(c)(3) to have similar jurisdictional force. Instead, the contrast underscores that the failure to obtain a COA is jurisdictiorial, while a COA’s failure to indicate an issue is not.”). For all of those reasons, we conclude that our Gonzalez decision is a purely posthumous precedent. It is no longer the law of this circuit that exhaustion of administrative remedies is a jurisdictional requirement in a § 2241 proceeding. Of course, that does not mean that courts may disregard a failure to exhaust and grant relief on the merits if the respondent properly asserts the defense. Skinner, 355 F.3d at 1295 (“We agree with the reasoning of our sister circuits and hold that prisoners seeking habeas relief, including relief pursuant to §• 2241, are subject to administrative exhaustion requirements.”). The exhaustion requirement is still a requirement; it’s just not a jurisdictional one. What its non-jurisdictional nature means is that a court need" }, { "docid": "22629050", "title": "", "text": "of discretion a dismissal of a § 2241 petition for failure to exhaust administrative remedies. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994). “In an appeal from the denial of habeas relief, this court reviews a district court’s findings of fact for clear error and issues of law de novo.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.2001). A. We begin by addressing the jurisdictional ruling upon which the district court based its dismissal. Section 2241 is the proper procedural vehicle if a prisoner “challenges the execution of his sentence rather than the validity of his conviction and sentence.” United States v. Cleto, 956 F.2d 83, 84 (5th Cir.1992). Here, Gallegos maintains he is being denied benefits that could result in a one-year reduction in his sentence. As we have noted, participation in the rehabilitation program can result in a reduction in sentence of up to twelve months. A claim challenging the denial of entry into the program therefore is properly raised under § 2241 and the district court erred in concluding it lacked subject-matter jurisdiction of Gallegos’s § 2241 petition. See Cenante v. United States, 402 Fed.Appx. 886, 887 (5th Cir.2010) (court had subject-matter jurisdiction over § 2241 claim seeking admission into drug rehabilitation program); see also Rublee v. Fleming, 160 F.3d 213, 214-17 (5th Cir.1998); Canajal v. Tombone, 31 Fed.Appx. 155 (5th Cir.2001). B. Now that we have determined that the district court had jurisdiction to consider the claims, we must address the alternative rulings on the merits of the claims because they are now at issue. We thus turn to the question of whether Gallegos was required to exhaust his administrative remedies. We have held that a federal prisoner filing a § 2241 petition must first pursue all available administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993). However, “[ejxceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at" }, { "docid": "16129891", "title": "", "text": "subject-matter of the case, nor did it limit the power of the district court to. adjudicate the case, it was not a jurisdictional rule immune to forfeiture. Id. at 16, 19, 126 S.Ct. 403. This was so, even though Rule 33’s timeliness requirement remained both unmistakable and mandatory. Id. at 16-17, 126 S.Ct. 403. Thus, the Court held that Rule 33 is a claim-processing rule that, although mandatory, could be forfeited when, as in that case, it had not been timely raised. Id. at 19, 126 S.Ct. 403. This more-focused conception of jurisdiction was anticipated by our Court in its en banc decision in United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc), abrogated on other grounds by United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005). In Sanchez, we rejected the defendants’ claims that an Ap-prendi error is structural or jurisdictional in the course of concluding that harmless error review applies. Id. at 1272-75. We wrote that “[a] jurisdictional defect occurs only where a federal court lacks power to adjudicate at all.” Id. at 1273. Significantly, this is wholly consonant with the Supreme Court’s admonition in Kontrick that the label “jurisdictional” should be reserved only for those prescriptions delineating the court’s adjudicatory authority over classes of cases and persons. See Kontrick, 540 U.S. at 455,124 S.Ct. 906. It should not be applied to prescriptions (or proscriptions) limiting a court’s actions in a case in which the court’s underlying authority to decide the matter is unquestioned. Most recently, in Santiago-Lugo v. Warden, 785 F.3d 467, 471 (11th Cir. 2015), we determined that the Supreme Court had abrogated our prior case law holding that a habeas petitioner’s failure to exhaust all available administrative remedies created a jurisdictional defect. We noted that the “term ‘jurisdiction’ has become ‘a word of many, too many, meanings,’ ” id. at 472 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)), and does not apply to “claim-processing rules” that “seek to promote the orderly progress of litigation by requiring that" }, { "docid": "12598966", "title": "", "text": "§ 2241(e), is different from the judge-made jurisdictional bar against unexhausted § 2241 petitions set forth in Gonzalez. The latter bar, which has no statutory home, is the only one at issue in the present case. . That Thaler dealt with a different section of the habeas corpus statute and Reed Elsevier dealt with a different statute altogether does not undermine our conclusion that those two decisions abrogated Gonzalez. See United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir.2010) (holding that one of our prior panel precedents involving the Armed Career Criminal Act was undermined to the point of abrogation by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), even though Shepard dealt with a different provision of that Act); United States v. Lopez, 562 F.3d 1309, 1312 (11th Cir.2009) (holding that one of our prior panel precedents about when criminal filing deadlines are jurisdictional was abrogáted by Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), even though Bowles dealt with civil filing deadlines); United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008) (holding that one of our prior panel precedents was undermined to the point of abrogation by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), even though Begay addressed a different crime and a different sentencing law); see also United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) (\"It is the law of this Circuit that a subsequent ' panel is not obligated to follow a prior panel’s decision where an intervening Supreme Court decision establishes that the prior panel decision is wrong.”). . To the extent that other published decisions of this Circuit have held or stated that exhaustion is a jurisdictional prerequisite to § 2241 relief, they too have been undermined to the point of abrogation. See, e.g., United States v. Williams, 425 F.3d 987, 990 (11th Cir.2005); Skinner, 355 F.3d at 1295; Winck, 327 F.3d at 1300 n. 1; Boz v. United States, 248 F.3d 1299, 1300 (11th Cir.2001). . Santiago-Lugo also contends that it" } ]

[ { "docid": "11858826", "title": "", "text": "COLEMAN, Circuit Judge: The American Family Life Assurance Company of Columbus, Georgia, sued Blue Cross and Blue Shield of Florida. The complaint charged that enforcement of a “coordination of benefits” provision contained in defendants’ plans for hospital and surgical benefits violated Section 1 of the Sherman Act, 15 U.S.C. § 1. Specifically, it was urged that the practice constituted boycott, coercion, intimidation, and other prohibited restraints of trade. A plan covering the municipal employees of Miami Beach was especially challenged. After a Bench trial on the merits, the District Court dismissed the complaint, American Family Life Assurance Company of Columbus v. Blue Cross of Florida, Inc.,. 346 F.Supp. 267 (S.D., Fla., 1972). We affirm. It is to be noted that prior to the beginning of this litigation plaintiff had sought temporary and permanent injunc-tive relief against eight large commercial health insurance carriers in the Northern District of Georgia. That case was reviewed by this Court as to the denial of preliminary injunctive relief and the denial was affirmed, American Family Life v. Aetna Life Insurance Company, 5 Cir., 1971, 446 F.2d 1178. That decision, of course, did not go to the merits. The primary business of American Family Life is the sale of cancer plan insurance policies which provide for payment solely in the event of certain expenses incurred in connection with a confirmed diagnosis of cancer. Such payments are made regardless of any benefits paid on the same risk by other insurance companies. Blue Cross, a non-profit corporation, operates a hospital service plan. Blue Shield, likewise a non-profit corporation, operates a medical or surgical plan. Although there is some cavil to the contrary, both of these defendants are clearly subject to the supervision and regulation of the Florida Department of Insurance. The coordination of benefits, sometimes referred to as “COB”, is at the heart of the controversy. COB simply means that if the same hospital, surgical or medical risk is covered by more than one insurance carrier then the company insuring with a COB provision in its policies may reduce the amount of its payments by that payable from" } ]

[ { "docid": "7491666", "title": "", "text": "has intended it to do. In fact, some of the contractual provisions objected to by the plaintiff have been more or less frozen into Blue Cross’ negotiating position by the decisions of the Insurance Department. The terms, “boycott, coercion, or intimidation,” must be interpreted with attention to the structure of the statutory provisions to which they are related. The Sherman Act proscribes practices which are monopolistic or are otherwise unreasonable restraints of trade. The McCarran-Ferguson Act creates an exemption from the Sherman Act provisions, but at the same time allows for an exception to the exemption. In this context, the terms, boycott, coercion, and intimidation, cannot be given as broad a meaning as they might have if used to define unreasonable restraint of trade. Otherwise, the Section 1013(b) exception would all but swallow up the body of the McCarran-Ferguson exemption. The exception must have been aimed at particular known practices in the insurance industry which Congress intended to outlaw irregardless of any efforts undertaken by the state to eliminate them through regulation. In Meicler v. Aetna Casualty and Surety Co., 372 F.Supp. 509 (S.D.Texas 1974) aff’d, 506 F.2d 732 (5th Cir. 1975), the district court stated: “It cannot be disputed that the terms boycott and coercion, as commonly defined, might be construed to encompass the type of activity attributed to defendants in the instant case. An examination of the legislative history of this section reveals, however, that Congress was seeking to regulate a rather narrow area of activity bearing no resemblance to the situation described in Plaintiffs’ Complaint. Section 1013(b) was designed primarily to deal with conspiracies or combinations among insurance companies and agents for the purpose of boycotting or refusing to deal with other insurance companies and agents.” (emphasis supplied) 372 F.Supp. at 513-514. Frankford Hospital’s reliance on Battle v. Liberty Life Insurance Company, 493 F.2d 39 (5th Cir. 1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975), is misplaced. In that case the plaintiff was challenging activities of an insurance company (involving an arrangement with an additional party) that had nothing to do with" }, { "docid": "21999595", "title": "", "text": "the business purpose of limiting the risks involved, since, it is argued, Club members are considered to be better drivers than the general public. Defendants have moved for summary judgment on the ground that the conduct about which plaintiff complains is exempt from federal antitrust laws under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. That Act exempts insurance carriers from federal antitrust suits where the business of insurance is “regulated by State law,” 15 U.S.C. § 1012(b). Plaintiff contends (1) that Missouri State law does not, in fact, regulate the specific conduct alleged to be in violation of the federal antitrust laws, and (2) that plaintiff’s allegations come within the boycott exception to the McCarran-Ferguson exemption, 15 U.S.C. § 1013(b). We find and conclude that the McCarran-Ferguson exemption is applicable here, and that defendants’ motion for summary judgment should be granted. II. THE McCARRAN-FERGUSON EXEMPTION The McCarran-Ferguson Act was the Congressional response to the Supreme Court’s reversal of the doctrine that insurance transactions were not subject to federal regulation under the Commerce Clause. The Fifth Circuit has succinctly stated the historical basis of the act: In 1869 the Supreme Court held that “[ijssuing a policy of insurance is not a transaction of commerce.” Paul v. Virginia, 75 U.S. (8 Wall.) 168, 183, 19 L.Ed. 357 (1869). After that decision, it was widely assumed that congressional regulation of the insurance business was improper. But in 1944 the Supreme Court held that insurance transactions were subject to congressional regulation in general, and the strictures of the anti-trust laws in particular. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). Congress responded to the South-Eastern Underwriters decision with the McCarran-Ferguson Act. That Act “was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation.” Securities & Exch. Comm’n. v. National Securities, Inc., 393 U.S. 453, 459, 89 S.Ct. 564, 568, 21 L.Ed.2d 668 (1969). Congress was particularly concerned lest federal anti-trust laws interfere with the rate-making regulatory schemes" }, { "docid": "6810155", "title": "", "text": "168, 19 L.Ed. 357 (1869). In 1944, however, the Supreme Court repudiated the principle that insurance is not commerce and held that federal antitrust laws could constitutionally be applied to insurance companies. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). This decision left the nation’s insurance companies and the states’ regulatory bodies dumbfounded; suddenly, state taxation and regulation of insurance seemed open to serious constitutional doubts. Federal authorities were loath to assume the burden of substituting national for state supervision of insurance. To .restore some certainty, Congress passed the McCarran-Ferguson Act in 1945. The Act made it clear that state regulation and taxation of insurance could continue. It also narrowed the impact of federal law on the insurance business, stating that “the Sherman Act, . . . the Clayton Act, and . . . the Federal Trade Commission Act . . . shall be applicable to the business of insurance to the extent that such business is not regulated by State law.” 15 U.S.C. § 1012(b). This provision allows the states to engage in a kind of “reverse preemption”, and the states were quick to enact the necessary laws. The parties agree that the defendants’ acts were related to the business of insurance and that Rhode Island effectively regulates that business. Cf. SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969); FTC v. Travelers Health Ass’n, 362 U.S. 293, 80 S.Ct. 717, 4 L.Ed.2d 724 (1960). The controversy in this case centers on an exception to the “preemptive” powers of the states: “Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” 15 U.S.C. § 1013(b). The district court concluded that “despite this provision’s broad wording, which on first glance seems to support the plaintiffs’ position, Congress intended this exception to be narrowly applied and that it does not, in fact, cover the situation presented in this case.” It held that the “boycott, coercion, and intimidation” exception was intended" }, { "docid": "7491667", "title": "", "text": "Aetna Casualty and Surety Co., 372 F.Supp. 509 (S.D.Texas 1974) aff’d, 506 F.2d 732 (5th Cir. 1975), the district court stated: “It cannot be disputed that the terms boycott and coercion, as commonly defined, might be construed to encompass the type of activity attributed to defendants in the instant case. An examination of the legislative history of this section reveals, however, that Congress was seeking to regulate a rather narrow area of activity bearing no resemblance to the situation described in Plaintiffs’ Complaint. Section 1013(b) was designed primarily to deal with conspiracies or combinations among insurance companies and agents for the purpose of boycotting or refusing to deal with other insurance companies and agents.” (emphasis supplied) 372 F.Supp. at 513-514. Frankford Hospital’s reliance on Battle v. Liberty Life Insurance Company, 493 F.2d 39 (5th Cir. 1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975), is misplaced. In that case the plaintiff was challenging activities of an insurance company (involving an arrangement with an additional party) that had nothing to do with the issuing of insurance. The court held that the McCarran-Ferguson Act exemption did not apply to the instant complaint. It explicitly distinguished Travelers Insurance Company v. Blue Cross, supra. In dictum, the court stated that even if the McCarran-Ferguson Act applied, the complaint would survive a motion to dismiss, because of allegations that brought Section 1013(b) into play. The complaint alleged, inter alia, that the defendants threatened to build funeral homes to compete with the plaintiffs’ businesses; threatened physical violence against the plaintiffs and their agents; and threatened to cancel insurance contracts. Frankford Hospital has not alleged threats of physical violence, or threats to build competing hospitals, by Blue Cross. Furthermore, it is undisputed that Blue Cross has not threatened to cancel any contracts but rather has continuously offered to enter into the 1971 and 1974 uniform cost contracts with plaintiffs. Frankford Hospital asserts that the provisions in Blue Cross subscriber contracts which set the rates of reimbursement for services received from non-member hospitals are “coercive.” The district and the circuit court considered virtually the" }, { "docid": "5568979", "title": "", "text": "regulatory scheme is comprehensive and meaningfully administered. Schwartz, supra at 575. Since the plaintiff does not and could not argue that Pennsylvania’s regulatory scheme is a mere sham, the fact that no statute or regulation specifically deals with the practice here in question is irrelevant. C. Boycott, Coercion or Intimidation. The plaintiff’s final contention is that the defendant’s conduct comes within section 3(b) of the McCarran-Ferguson Act, 15 U.S.C. § 1013(b), which provides: Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or any act of boycott, coercion or intimidation. The defendants concede that if the challenged practice is covered by section 3(b) they are subject to suit under the Sherman Act irrespective of state regulation. Monarch Life Insurance Co. v. Loyal Protective Life Insurance Co., 326 F.2d 841 (2d Cir. 1963), cert. denied 376 U.S. 952, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964); California League of Independent Insurance Producers v. Aetna Casualty & Surety Co., 179 F.Supp. 65 (N.D.Cal.1959); Professional and Business Men’s Life Insurance Co. v. Bankers Life Co., 163 F.Supp. 274 (D.Mont.1958); United States v. New Orleans Insurance Exchange, 148 F.Supp. 915 (E.D.La.), aff’d per curiam, 355 U.S. 22, 78 S.Ct. 96, 2 L.Ed.2d 66, reh. denied, 355 U.S. 908, 78 5. Ct. 329, 2 L.Ed.2d 262 (1957). The plaintiff’s theory as to boycott, coercion, or intimidation is that the defendants have coerced new home buyers into the payment of an unnecessary charge for mechanic’s lien coverage by denying them other services .essential to settlement unless such payment is made. The fact that this charge is arrived at by agreement among the defendants also is claimed to amount to a concerted refusal to deal except at a fixed price. The short answer to these contentions is that even if this conduct on the part of the defendants might be characterized as a boycott, coercion or intimidation, section 3(b) was intended to cover a rather narrow area of activity totally foreign to anything involved here. As explained in Transnational Insurance Company v. Rosenlund, 261 F.Supp. 12 (D.Or." }, { "docid": "972385", "title": "", "text": "While the reasoning and facts vary somewhat from case to case our conclusion is also supported by the numerous decisions, in addition to Travelers Insurance and Royal Drug, supra, which have upheld similar arrangements between insurance companies and suppliers of services to insureds, in the face of claims that the practices went beyond the business of insurance and involved boycotts, coercion, or intimidation as well. E. g., Workman v. State Farm Mutual Automobile Ins. Co., Civ. No. 75-1799 (N.D. Cal, Sept. 16,1976) (arrangements between automobile insurance company and automobile body repair shops); Frankford Hospital v. Blue Cross, 417 F.Supp. 1104 (E.D.Pa. 1976) (agreements between medical insurance company and hospitals); Anderson v. Medical Service, 1976 Trade Cas.¶ 60,884 (E.D.Va., Feb. 10, 1976) (contracts between medical insurance company and physicians). The decision of the Fifth Circuit in Battle v. Liberty National Life Insurance Co., 493 F.2d 39 (5th Cir. 1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975), is not to the contrary. In that case, a burial insurance company had entered into a contract with its wholly owned subsidiary, under which the subsidiary agreed to furnish the merchandise and services guaranteed by the burial insurance policies. The subsidiary in turn entered into agreements with a number of funeral homes and directors, establishing those homes as “authorized” providers of services to the insurance company’s policyholders, setting the terms by which the subsidiary would reimburse the homes for those services, and requiring the homes to use certain merchandise supplied or approved by the subsidiary. An antitrust action on behalf of the class of affected funeral homes and directors was brought against the insurance company and its subsidiary, but the trial court granted a motion to dismiss for failure to state a claim, in part on the basis of the McCarran-Ferguson Act. The Fifth Circuit reversed, holding with respect to the McCarran Act defense that further factual development was required before the trial court properly could determine whether the activities in question were part of the business of insurance. See id. at 49-51. In reaching this holding, however, the court" }, { "docid": "6810157", "title": "", "text": "by Congress solely to protect insurance agents or other insurance companies from being blacklisted by combinations of companies, and was not intended to have any bearing on the insurer-insured relationship. It also observed that a contrary holding would vitiate the McCarran-Ferguson Act by, presumably, cutting deeply into the area of regulation which has been given to the states. In so holding, it relied on the only case authorities which had dealt with this issue. Addrisi v. Equitable Life Assurance Soc’y, 503 F.2d 725 (9th Cir. 1974), cert, denied, 420 U.S. 929, 95 S.Ct. 1129, 43 L.Ed.2d 400 (1975); Meicler v. Aetna Cas. & Sur. Co., 506 F.2d 732 (5th Cir. 1975); Transnational Ins. Co. v. Rosenlund, 261 F.Supp. 12 (D.Or.1966). Six other district courts have now taken the same view. Mathis v. Automobile Club Inter-Ins. Exch., 410 F.Supp. 1037 (W.D.Mo. 1976); Proctor v. State Farm Mut. Auto. Ins. Co., 406 F.Supp. 27 (D.D.C.1975); McIlhenny v. American Tit. Ins. Co., 418 F.Supp. 364 (E.D.Pa.1976); Royal Drug Co. v. Group Life and Health Ins. Co., 415 F.Supp. 343 (W.D.Tex.1976); Seasongood v. K & K Ins. Ag’cy, 414 F.Supp. 698 (E.D.Mo.1976), rev’d on other grounds, 548 F.2d 729 (8th Cir. 1977); Frankford Hosp. v. Blue Cross, 417 F.Supp. 1104, 1976-2 Trade Cas. ¶ 61,030 (E.D.Pa.1976). Since we feel compelled to disagree with this rather formidable array of authorities, we first try to summarize as fairly as we can the bases for their decision. We then make our own analysis of the wording of the statute and its legislative history. The line of cases begins with Transnational Ins. Co. v. Rosenlund, supra. Although the Transnational court found that it was not faced with a boycott even within the ordinary meaning of that word, it announced in passing that the boycott provision “was placed in the legislation to protect insurance agents from the issuance by insurance companies of a ‘black-list,’ which would name companies or agents which were beyond the pale. This list, in effect, was a directive to an agent not to write insurance in the name of or for the black-listed company; otherwise," }, { "docid": "18446493", "title": "", "text": "with the companies and written by the agent will be placed with the companies.” While the “first submission” language in Blackley was more favorable to the agent than the “exclusive dealing” language in this case, we nevertheless find Blackley persuasive on the question of whether the acts of the defendants constituted a restraint of trade under the Sherman Act. While they were a restraint on plaintiff they did not exert any anticompetitive effect on the business of insurance. Persons desiring insurance were free to buy the insurance coverage of any competitor. While the actions of the Defendants restricted their own agents, they do not fit the requirements of the term “boycott” as it has been applied in the cases under the McCarran-Ferguson Act. In United States v. South Eastern Underwriters Assn., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 [1944]; United States v. Insurance Board of Cleveland, 144 F.Supp. 684 [N.D.Ohio 1956]; United States v. New Orleans Insurance Exchange, 148 F.Supp. 915 [E.D.La.1957], aff’d p. c. 355 U.S. 22, 78 S.Ct. 96, 2 L.Ed.2d 66 [1957]; Professional & Business Men’s Life Ins. Co. v. Bankers Life Co., 163 F.Supp. 274 [D.Mont.1958]; California League of Independent Ins. Producers v. Aetna Casualty & Surety Co., 179 F.Supp. 857 [N.D.Cal.1959], there was always present an association of competitors who sought to exclude non-member competitors from the market. The courts have restricted the term “boycott” as used in 15 U.S.C. § 1013(b) to mean: “. . . Section 1013(b) was designed primarily to deal with conspiracies or combinations among insurance companies and agents for the purpose of boycotting or refusing to deal with other insurance companies and agents. There is nothing in the legislative history or case law bearing on this section to indicate that it is applicable to a refusal by insurance companies to deal with particular segments of the public except under fixed classifications and premium rates . . Meicler v. Aetna Casualty and Surety Company, 372 F.Supp. 509, 513, 514 [S.D. Tex.1974] (aff’d, 506 F.2d 732 [5th Cir. 1975], also “The word ‘boycott’ as used in this type of legislation," }, { "docid": "4640837", "title": "", "text": "Plus? Yes_ No_ b. If your answer to the previous question is “yes”, please state the amount of punitive damages to be awarded Health Care Plus. $- 35.If you have found plaintiff Wesley Medical Center is entitled to an award of actual damages (even nominal damages) in response to No. 33 above, you are to decide whether to award Wesley Medical Center punitive damages from Blue Cross. a. Is plaintiff Wesley Medical Center entitled to an award of punitive damages for conduct by Blue Cross that was willful or wanton with regard to the rights of Wesley? Yes x No_ b. If your answer to the previous question is “yes”, please state the amount of punitive damages to be awarded to Wesley Medical Center. $750,000.00 John D. Beltz Foreperson Sept. 30, 1986 Date (Dkt. 209.) JURISDICTION BCBSK’s first challenge to this verdict is that the court lacks jurisdiction. (Dkt. 249.) Defendant contends that because the relevant market was defined as “health care financing”, defendant’s conduct is exempt from federal antitrust scrutiny under the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015. The McCarran Act is designed to preserve state regulation and taxation of the “business of insurance.” 15 U.S.C. § 1011. But the Sherman Act and the Clayton Act apply to the “business of insurance to the extent that such business is not regulated by State law,” 15 U.S.C. § 1012(b), and regardless of state regúla tion, the Sherman Act applies “to any agreement to boycott, coerce or intimidate, or act of boycott, coercion or intimidation,” 15 U.S.C. § 1013(b). This statutory scheme erects three requirements which must be met to obtain the McCarran-Ferguson exemption. The challenged practices (1) must constitute the “business of insurance” under § 2(b) [15 U.S.C. § 1012(b) ]; (2) must be regulated by state law pursuant to § 2(b); and (3) must not amount to “boycott, coercion or intimidation” under § 3(b) [§ 1013(b) ]. See Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 124, 102 S.Ct. 3002, 3006, 73 L.Ed.2d 647 (1982); Hahn v. Oregon Physicians Service, 689 F.2d 840, 842 (9th Cir.1982), cert." }, { "docid": "10777335", "title": "", "text": "plaintiff or any other similar company is at perfect liberty to use COB itself at any time it chooses to do so. As the court views COB, therefore, it is simply a new or at least a different product, and upon analysis, plaintiff’s claim of boycott is not based so much on defendants’ bad motive or exclusionary intent as upon the naked claim that the mere employment of a COB limitation at all, at any time, or against any insurance company (including defendants) amounts to boycott in itself. The court simply cannot believe that the mere offering and sale of a new and different product, available to all and forbidden to none, and which reduces the price to the public of a necessary coverage, either constitutes coercion, intimidation, or boycott or that it constitutes any kind of predatory competition within the meaning of antitrust, irrespective of McCarran-Ferguson. Certainly the mere fact that the COB provision was perfected and standardized by defendants through a trade association does not ipso facto make it a boycott or a violation of antitrust. United States v. National Malleable & Steel Castings Co., 1957 CCH Trade cases ¶ 68,890 (N.D.Ohio), aff’d per curiam 358 U.S. 38, 79 S.Ct. 39, 3 L.Ed.2d 44 (1957). We think this is what the Fifth Circuit said and meant when it decided American Family Life Assurance Co. of Columbus v. Blue Cross of Florida, Inc. (5th Cir. Nov. 5, 1973), 486 F.2d 225, a case involving the present plaintiff and indistinguishable from the one here involved. There Judge Coleman, speaking for the court, said: “We think the correct standard for the determination of the issue now before us was enunciated by the Third Circuit in The Travelers Insurance Company v. Blue Cross of Western Pennsylvania, [July 10, 1973], 481 F. 2d 80: ‘The anti trust laws, however, protect competition, not competitors; and stiff competition' is encouraged, not condemned.’ “This statement was preceded by the observation that: ‘In its negotiating with hospitals, Blue Cross has done no more than conduct its business as every national enterprise does, i. e., get the best" }, { "docid": "7491662", "title": "", "text": "coercion or intimidation. Section 1013(b) of 15 U.S.C. provides: “Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” Substantially similar arguments to those advanced by plaintiff in this case were adjudicated in Travelers Insurance Company v. Blue Cross of Western Pennsylvania, 361 F.Supp. 774 (W.D.Pa.1972), aff’d 481 F.2d 80 (3d Cir.) cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). After a lengthy trial the district court dismissed plaintiff’s complaint on the alternative grounds: a) that the defendant could avail itself of the McCarran-Ferguson Act exemption because its contracts with hospitals were part of the business of insurance; these contracts were aggressively regulated by the Commonwealth of Pennsylvania; and the defendant had not, in connection with these contracts, accomplished an unreasonable restraint of trade through boycott, coercion, or intimidation as those terms are defined in 15 U.S.C. § 1013(b); and b) assuming that the McCarran-Ferguson Act exemption did not apply, Blue Cross of Western Pennsylvania did not engage in any unlawful monopolization or restraint of trade. The Third Circuit.affirmed on each of these grounds. It is unnecessary to pass beyond the McCarran-Ferguson Act issue in order to decide the present motion. Travelers held that the rates Blue Cross of Western Pennsylvania charged its subscribers were so interrelated with the terms of Blue Cross’ hospital contracts that the latter should be considered part of the business of insurance. 481 F.2d at 83. That conclusion was based on facts which were alike in all material respects to the undisputed facts in this case. Moreover, the argument that Travelers should be distinguished from the instant case either because it involved a different Blue Cross plan and a different set of negotiations, or because a suit brought by a private insurance carrier presented the questions in a different light than a suit brought by a class of hospitals, was destroyed by the recent affirmance of Doctors Hospital v. Blue Cross of Greater Philadelphia, Civil Action No. 73-1057 (E.D.Pa. Aug. 13, 1975), aff’d per" }, { "docid": "5568980", "title": "", "text": "Life Insurance Co. v. Bankers Life Co., 163 F.Supp. 274 (D.Mont.1958); United States v. New Orleans Insurance Exchange, 148 F.Supp. 915 (E.D.La.), aff’d per curiam, 355 U.S. 22, 78 S.Ct. 96, 2 L.Ed.2d 66, reh. denied, 355 U.S. 908, 78 5. Ct. 329, 2 L.Ed.2d 262 (1957). The plaintiff’s theory as to boycott, coercion, or intimidation is that the defendants have coerced new home buyers into the payment of an unnecessary charge for mechanic’s lien coverage by denying them other services .essential to settlement unless such payment is made. The fact that this charge is arrived at by agreement among the defendants also is claimed to amount to a concerted refusal to deal except at a fixed price. The short answer to these contentions is that even if this conduct on the part of the defendants might be characterized as a boycott, coercion or intimidation, section 3(b) was intended to cover a rather narrow area of activity totally foreign to anything involved here. As explained in Transnational Insurance Company v. Rosenlund, 261 F.Supp. 12 (D.Or. 1966): The legislative history [of the McCarran-Ferguson Act] shows that the boycott, coercion and intimidation exception, was placed in the legislation to protect insurance agents from the issuance by insurance companies of a “black-list,” which would name companies or agents which were beyond the pale. This list, in effect, was a directive to an agent not to write insurance in the name of or for the blacklisted company; otherwise he would be stripped of his agency and not be permitted to write insurance for any of the members of the governing organization of insurance companies. Id. at 26-27. Meicler v. Aetna Casualty and Surety Co., 372 F.Supp. 509 (S.D.Tex. 1974), aff’d 506 F.2d 732 (5th Cir. 1975) is closely on point also. The plaintiffs in Mei-cler advanced essentially the same boycott, coercion, etc., argument made by the plaintiff here: viz., that the insurance companies agreement to reclassify the plaintiffs into a less favorable and thus more costly automobile risk category amounted to a concerted refusal to deal except at a fixed price. In rejecting this" }, { "docid": "15778508", "title": "", "text": "the business of insurance, as used in the Act, was concerned with the relationship between the company and its policyholders and that the laws regulating this relationship, directly or indirectly, were the laws regulating the business of insurance. This was set forth in Securities and Exchange Commission v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). National Life’s regulation of its general agents, the court said, was' part of the “business of insurance.\" Also, the court said that National Life meets the second requirement for a McCarran Act exemption — the regulation by state law. Accordingly, the issue boiled down to whether or not the agreement constituted a boycott or was to coerce or intimidate. In granting the summary judgment the district court held that the evidence failed to establish that this was true and that it was not necessary to determine the case under the narrow view. See Meicler v. Aetna Casualty and Surety Co., 506 F.2d 732 (5th Cir. 1975); Addrisi v. Equitable Life Assurance Society, 503 F.2d 725 (9th Cir. 1974), cert. denied, 420 U.S. 929, 95 S.Ct. 1129, 43 L.Ed.2d 400 (1975); Black v. Nationwide Mutual Insurance Co., 429 F.Supp. 458 (W.D.Pa.1977), aff'd, 571 F.2d 571 (3d Cir. 1978); Blackley v. Farmers Insurance Group, Inc., 1976-2 Trade Cas. 161,061 (D.Utah 1976); Transnational Insurance Co. v. Rosenlund, 261 F.Supp. 12 (D.Or.1966). The more liberal construction of the boycott exception is shown in Barry v. St. Paul Fire & Marine Insurance Co., 555 F.2d 3 (1st Cir. 1977), aff'd, 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978); Monarch Life Insurance Co. v. Loyal Protective Life Insurance Co., 326 F.2d 841 (2d Cir. 1963), cert. denied, 376 U.S. 952, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964); Ballard v. Blue Shield of Southern West Virginia, Inc., 561 F.2d 262 (4th Cir. 1976); Proctor v. State Farm Mutual Automobile Insurance Co., 182 U.S. App.D.C. 264, 561 F.2d 262 (1977). The only decisions in the Tenth Circuit are from district courts. One of these was by Judge Matsch in Western Health Care Corp. v. Colorado" }, { "docid": "6810165", "title": "", "text": "to apply to the relationship between policyholders and their insurers. SEC v. National Securities, Inc., supra, 393 U.S. at 460, 89 S.Ct. 564. The boycott provision presumably also reflects this concern for the insurer-insured relationship. On a broader scale, we note that legislative and judicial exceptions to the general rule favoring free competition have often been narrowed over the years. See, e. g., Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (July 6, 1976) (“state action” exception restricted); Goldfarb v. Virginia State Bar, 421 U.S. 773, 785-88, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (“learned profession” exception questioned); United States v. International Boxing Club of New York, Inc., 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290 (1955) (refusing to extend “baseball” exemption to boxing); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951) (narrow view of Miller-Tydings “fair trade” exception). The McCarran-Ferguson Act is of course a legislative exception to the antitrust laws, and it deserves a fair reading. But the artificial reading of the boycott provision that appellees urge on us can only be characterized as a judge-made expansion of the Act. We think the national commitment to a free market places a special burden on courts to think long and hard before creating such exceptions to the antitrust laws. In short, the usual reading of “boycott, coercion, or intimidation” does not lead to irrationality, nor does it pose a grave danger to state authority. It conforms to the nation’s antitrust policies. We see no reason, therefore, to look to the legislative history for a special and narrow meaning of these words. Nevertheless, in deference to the courts which have found support in that history, we have studied it in detail. The decision in South-Eastern Underwriters, supra, was issued on June 5, 1944. That decision approved an indictment charging that the members of an insurance underwriters’ association “not only fixed premium rates and agents’ commissions, but employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies, and" }, { "docid": "15762224", "title": "", "text": "known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State Law. Sec. 3. (b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation. 59 Stat. 33-34, as amended, 61 Stat. 448 (codified at 15 U.S.C. §§ 1012-1013 (1976)). The Act was passed in response to the decision in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), which overruled Paul v. Virginia, 75 U.S. (8 Wall.) 168, 19 L.Ed. 357 (1869). The latter case had held that a policy of insurance is not a transaction of commerce, and for 75 years it was assumed that federal commerce clause legislation did not apply to the insurance industry. During that time state law had of necessity filled a federal regulatory vacuum. After the South-Eastern Underwriters decision, Congress anticipated that many of those state regulatory laws might be challenged on statutory supremacy or commerce clause grounds, so it enacted the quoted provisions, which in part defer to state regulation. The Act makes applicable to the business of insurance the Sherman and Clayton Acts “to the extent that such business is not regulated by state law.” State regulation may not, however, shield conduct which amounts to boycott, coercion or intimidation. But before the deference to state regulation comes into operation, the conduct must be found to be the “business of insurance.” The McCarran-Ferguson Act contains no definition of the “business of insurance.” The term appears in a statute creating a limited exemption to the antitrust laws, however, and thus falls within the compass of the general rule that even express exemptions from antitrust laws are narrowly construed. Thus the Court has held that the exemption is not applicable to all activities of insurance companies, but" }, { "docid": "972396", "title": "", "text": "our conclusion. The indictment in that case alleged a conspiracy by an association of insurance companies and agents, along with its members, to fix premium rates and monopolize the insurance business. But the indictment also charged additional violations of the Sherman Act, involving practices in aid of the price-fixing and monopolization scheme; and the Supreme Court used the terms “boycott,” “coercion,” and “intimidation” to describe these additional practices. See 322 U.S. at 535-36, 64 S.Ct. 1162, quoted in note 20 infra. It is thus apparent that the boycott provision of the McCarran Act was intended to preserve South-Eastern Underwriters to the extent that the latter subjected acts of “boycott, coercion, or intimidation” to the prohibitions of the Sherman Act. And the Supreme Court’s opinion reveals that, while a blacklist of insurance companies and agents was alleged, another type of boycott was also involved: policyholders of insurance companies that were not members of the association “were threatened with boycotts and withdrawal of all patronage.” We find it hard to believe that Congress would have intended a construction of the boycott provision which excludes from its sweep activities explicitly addressed in the case from which its language is drawn. IV The narrow construction of the boycott provision has the virtue of embodying a bright-line test, at least to the extent that all activities which are not directed against insurance companies or agents automatically fall outside the exception. As a result of our rejection of this construction, we must face the delicate task of determining whether the practices alleged by appellants constitute “boycott, coercion, or intimidation” within the meaning of this provision. The District Court feared that to read the boycott provision to include any of these practices would “emasculate” the antitrust exemption provided by the McCarran Act. 406 F.Supp. at 32, quoting Meicler v. Aetna Casualty & Surety Co., supra, 506 F.2d at 734. See also Addrisi v. Equitable Life Assurance Society, supra, 503 F.2d at 729. Although we recognize that the terms of the provision are not self-defining, and are capable of being read in such a way as to swallow" }, { "docid": "14187883", "title": "", "text": "OPINION OF THE COURT PER CURIAM. This action was commenced by Frankford Hospital against Blue Cross alleging violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and asserting a pendent state claim under Pennsylvania common law. After certifying Frankford as a class representative for purposes of injunctive relief, and after extensive discovery, the district court granted Blue Cross’ motion for summary judgment on the federal claims and declined to exercise jurisdiction over the state law claim. Frankford appealed. The narrative or historical facts are not in dispute. The issue is purely one of law: whether Blue Cross’ conduct is exempted from the Sherman Act by the McCarranFerguson Act, 15 U.S.C. § 1011 et seq. As the district court correctly concluded, that issue is settled by Travelers Insurance Co. v. Blue Cross, 481 F.2d 80 (3d Cir.), cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973), and by Doctors, Inc. v. Blue Cross, 557 F.2d 1001 (3d Cir. 1976). Those cases establish that the “business of insurance” provision of the McCarran-Ferguson Act exempts Blue Cross’ conduct here from the coverage of the Sherman Act unless “boycott, coercion, or intimidation” is demonstrated which would remove the McCarran-Ferguson Act exemption. We agree with the district court that none of these elements was present here. Accordingly, we will affirm the judgment of the district court on the grounds that the McCarran-Ferguson Act exemption applies and that there was no boycott, coercion, or intimidation to remove the exemption. We will also affirm the district court’s refusal to exercise jurisdiction over the state law claim. The judgment of the district court will be affirmed. . 15 U.S.C. § 1012(b) provides: the Sherman Act . . shall be applicable to the business of insurance to the extent that such business is not regulated by State law. . 15 U.S.C. § 1013(b) provides: Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." }, { "docid": "6810156", "title": "", "text": "provision allows the states to engage in a kind of “reverse preemption”, and the states were quick to enact the necessary laws. The parties agree that the defendants’ acts were related to the business of insurance and that Rhode Island effectively regulates that business. Cf. SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969); FTC v. Travelers Health Ass’n, 362 U.S. 293, 80 S.Ct. 717, 4 L.Ed.2d 724 (1960). The controversy in this case centers on an exception to the “preemptive” powers of the states: “Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” 15 U.S.C. § 1013(b). The district court concluded that “despite this provision’s broad wording, which on first glance seems to support the plaintiffs’ position, Congress intended this exception to be narrowly applied and that it does not, in fact, cover the situation presented in this case.” It held that the “boycott, coercion, and intimidation” exception was intended by Congress solely to protect insurance agents or other insurance companies from being blacklisted by combinations of companies, and was not intended to have any bearing on the insurer-insured relationship. It also observed that a contrary holding would vitiate the McCarran-Ferguson Act by, presumably, cutting deeply into the area of regulation which has been given to the states. In so holding, it relied on the only case authorities which had dealt with this issue. Addrisi v. Equitable Life Assurance Soc’y, 503 F.2d 725 (9th Cir. 1974), cert, denied, 420 U.S. 929, 95 S.Ct. 1129, 43 L.Ed.2d 400 (1975); Meicler v. Aetna Cas. & Sur. Co., 506 F.2d 732 (5th Cir. 1975); Transnational Ins. Co. v. Rosenlund, 261 F.Supp. 12 (D.Or.1966). Six other district courts have now taken the same view. Mathis v. Automobile Club Inter-Ins. Exch., 410 F.Supp. 1037 (W.D.Mo. 1976); Proctor v. State Farm Mut. Auto. Ins. Co., 406 F.Supp. 27 (D.D.C.1975); McIlhenny v. American Tit. Ins. Co., 418 F.Supp. 364 (E.D.Pa.1976); Royal Drug Co. v. Group Life and Health Ins. Co., 415 F.Supp." }, { "docid": "18411397", "title": "", "text": "Id. at 127, note 7. Judge Ely notes that the test in the Fifth Circuit more closely approximates the “target area” criterion. . The only case we have been able to uncover that is similar to the instant case is Holly Springs Funeral Home v. United Funeral Service, 303 F.Supp. 128 (N.D.Miss., 1969). In Holly Springs the plaintiffs claimed that the defendant’s sale of burial insurance policies violated §§ 1 and 2 of the Sherman Act and § 3 of the Clayton Act. Holly Springs is not controlling here because, as the court pointed out, the restrictions with whom the policyholder could deal were set forth only in the insurance policy. “A funeral home . has no contractual obligation with anyone; . ” But the funeral homes in the instant case are bound by contracts with Brown-Service to perform services and furnish merchandise. . In determining whether there is state regulation of the insurance business, the courts have adopted varying points of view. In Ohio AFL-CIO v. Insurance Rating Board, 451 F.2d 1178 (6th Cir., 1971), cert. den., 409 U.S. 917, 93 S.Ct. 215, 34 L.Ed.2d 180 (1972), the court stated that the requirement of state regulation under the McCarran Act is satisfied if the state has “ ‘generally authorized or permitted certain standards of conduct.’ ” Id. at 1182. The regulatory scheme was considered sufficient even though it may not have been enforced. In Travelers Ins. Co. v. Blue Cross, 481 F.2d 80 (1973), the court recognized the test set forth in the insurance rating case, but then found that the state regulation was more “aggressive” and encompassing. Because we disagree with the district court for other reasons specified above, we need not determine either the standard or the extent of insurance regulatiqn in Alabama at this time. . 15 U.S.C. § 1013(b) (1970). This provision provides: (b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation. . Unless the private plaintiffs, in the court’s discretion, intervened in the prior suit," }, { "docid": "7491661", "title": "", "text": "own terms, reserved these areas in the first instance for state regulation. Because our decision is firmly grounded on the McCarran-Ferguson Act, we do not discuss Blue Cross’ defense based on Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). McCARRAN-FERGUSON ACT Frankford Hospital has charged Blue Cross with restraining trade, in violation of Section 1 of the Sherman Act, 15 U.S.C. § l, and with monopolizing and attempt ing to monopolize, in violation of Section 2 of that Act. Blue Cross contends that it has not violated the precepts contained in these Sherman Act provisions and, in any case, these rules themselves are inapplicable to the actions herein challenged by the language of the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. Section 1012(b) provides in pertinent part: . . [T]he Sherman Act . .• . shall be applicable to the business of insurance to the extent that such business is not regulated by State Law.” (emphasis supplied) Excluded from the protection of this exemption are certain practices, namely, boycott, coercion or intimidation. Section 1013(b) of 15 U.S.C. provides: “Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” Substantially similar arguments to those advanced by plaintiff in this case were adjudicated in Travelers Insurance Company v. Blue Cross of Western Pennsylvania, 361 F.Supp. 774 (W.D.Pa.1972), aff’d 481 F.2d 80 (3d Cir.) cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). After a lengthy trial the district court dismissed plaintiff’s complaint on the alternative grounds: a) that the defendant could avail itself of the McCarran-Ferguson Act exemption because its contracts with hospitals were part of the business of insurance; these contracts were aggressively regulated by the Commonwealth of Pennsylvania; and the defendant had not, in connection with these contracts, accomplished an unreasonable restraint of trade through boycott, coercion, or intimidation as those terms are defined in 15 U.S.C. § 1013(b); and b) assuming that the McCarran-Ferguson Act exemption did not apply, Blue Cross of Western" } ]

[ { "docid": "22789812", "title": "", "text": "the Amended Complaint asserts in the RICO claims (Counts IV-VII) generally that activities were undertaken by the Group Health Insurance Defendants “with Blue Cross of Florida,” Id. ¶ 47, “together with and/or assisted by Blue Cross of Florida,” Id., or similarly alleges Blue Cross’s cooperation with the Insurer Defendants in these general terms. Blue Cross has moved to dismiss each of the Plaintiffs’ claims against it on the basis of sovereign immunity. The MSP laws plainly do not provide for any action against an administrator or “fiscal intermediary” that is not itself the insurer. See Matranga v. Travelers Ins. Co., 563 F.2d 677, 677 (5th Cir.1977) (holding that in action seeking payment from Medicare for services rendered the Court lacks subject matter jurisdiction over fiscal intermediary under doctrine of sovereign immunity and the real party in. interest is the United States); see also Roberts v. Hay, 1992 WL 206292, No. 92-AR-0212-M (N.D.Ala.1992) (sovereign immunity of fiscal intermediary established by binding precedent in this Circuit). The Plaintiffs argue that Blue Cross is not entitled to sovereign immunity because the claims against it are based on actions exceeding Blue Cross’s authority to act on the government’s behalf. To the extent that the Plaintiffs have pled injury as a result of Blue Cross’s fraudulent conduct under the RICO laws, we agree. In Livingston v. Blue Cross & Blue Shield, 788 F.Supp. 545 (S.D.Ala.1992), aff'd without op., 996 F.2d 314, reh’g en banc denied, 7 F.3d 242 (11th Cir.1993), the plaintiff brought an action against Blue Cross and Blue Shield of Alabama, which acted solely as the carrier or fiscal intermediary on behalf of HHS. The plaintiff, a medical services provider, had been investigated by the defendant for Medicare fraud. This investigation ultimately led to the plaintiff being charged with eight counts of Medicare fraud. However, the plaintiff was found not guilty as to all' of the charges. The plaintiff then brought suit against Blue Cross and Blue Shield of Alabama alleging malicious prosecution. The District Court held, based on binding Former Fifth Circuit precedent, that Medicare fiscal intermediaries are entitled to sovereign immunity." } ]

[ { "docid": "5739319", "title": "", "text": "Authority (“Port Authority”), as an agent of the government of Texas, claimed sovereign immunity under the Texas Tort Claims Act (“Texas Act”). 702 F.2d at 613. The Texas Act, like the CTCA, contained a waiver of state immunity conditioned on the requirement that a plaintiff give notice to the Texas government within six months of the accrual of a cause of action. This condition effectively imposed a six month statute of limitations, rather than the general two year statute of limitations provided by general maritime law. The Port Authority argued that the Texas Act barred the plaintiffs action, and the Fifth Circuit agreed. In an excerpt on which defendant in this case relies heavily, the Fifth Circuit stated, This notice requirement, contained within the Texas Tort Claims Act itself, obviously is a limitation which the state clearly intended to apply to tort claims under the [Texas] Act whether or not they are in state or federal courts or are under state or maritime law. As such it is binding since it is in terms a limit on the waiver of sovereign immunity. Id. at 615. Earlier in the opinion, however, the court clearly had established that the Port Authority enjoyed Eleventh Amendment immunity, id. at 613; and it was not until the court held that the Port Authority' enjoyed Eleventh Amendment immunity that it engaged in an analysis of whether such immunity had been waived based on the state’s claims requirement. The court stated that “[although the claim is in admiralty, the Eleventh Amend ment sovereign immunity of the State of Texas stands [and t]he State of Texas has consented to claims in tort against state governmental entities under the Texas Tort Claims Act.” Id. In Kamani, then, Eleventh Amendment immunity served as a prerequisite for considering the issue of a state’s waiver of immunity. In another case upon which defendant relies heavily, Micomonaco v. State of Wash., 45 F.3d 316 (9th Cir.1995), the plaintiff brought suit under the Jones Act, and the defendant asserted the defense of immunity subject to waiver conditioned on the state’s notice of claims requirement." }, { "docid": "22789814", "title": "", "text": "Id. at 548 (citing Matranga v. Travelers Ins. Co., 563 F.2d 677 (5th Cir.1977); Peterson v. Weinberger, 508 F.2d 45 (5th Cir.), cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975); Peter son v. Blue Cross/Blue Shield of Texas, 508 F.2d 55, 57-58 (5th Cir.), cert, denied,- 422 U.S. 1043, 95 S.Ct. 2657, 45 L.Ed.2d 694 (1975)). However, the Court then explained the reason for this rule as follows: This Court does not read [the above-cited cases] to extend blanket immunity to Medicare fiscal intermediaries. Rather, a more logical interpretation is that the fiscal intermediary is entitled to sovereign immunity to the extent that the government is exposed to financial risk. Support for this interpretation can be found in Anderson v. Occidental Life Ins. Co., 727 F.2d 855 (9th Cir.1984) in which the Ninth Circuit, relying on the Peterson cases and Matranga, held that a Medicare fiscal intermediary was immune from suit “because recovery would come from the federal treasury.” Id. at 856. The court noted that the complaint did not allege “criminal, fraudulent or grossly negligent acts” which would exempt the government from its duty to indemnify the fiscal intermediary. Id. at 587. Id. at 548. In the present case, however, the Plaintiffs’ claims against Blue Cross seek damages against Blue Cross only in the RICO counts. These claims are plainly premised upon both criminal and fraudulent conduct. Thus, the government would not be required to indemnify Blue Cross for any recovery against it, eliminating the basis for sovereign immunity. Therefore, had the Plaintiffs’ claims survived dismissal and summary judgment, supra Parts III.A, III.B., III.D., and III.E., Defendant Blue Cross would not be entitled to dismissal on the basis of sovereign immunity. With respect to the Plaintiffs’ claim for declaratory relief, however, the Plaintiffs have pled, no grounds for inclusion of Blue Cross in that claim. In fact, Blue Cross is mentioned only in the title of Count III, with no allegations whatsoever to tie Blue Cross to the claim. Thus, if the Plaintiffs’ claims had otherwise survived dismissal and summary judgment, Count III of the" }, { "docid": "22789815", "title": "", "text": "“criminal, fraudulent or grossly negligent acts” which would exempt the government from its duty to indemnify the fiscal intermediary. Id. at 587. Id. at 548. In the present case, however, the Plaintiffs’ claims against Blue Cross seek damages against Blue Cross only in the RICO counts. These claims are plainly premised upon both criminal and fraudulent conduct. Thus, the government would not be required to indemnify Blue Cross for any recovery against it, eliminating the basis for sovereign immunity. Therefore, had the Plaintiffs’ claims survived dismissal and summary judgment, supra Parts III.A, III.B., III.D., and III.E., Defendant Blue Cross would not be entitled to dismissal on the basis of sovereign immunity. With respect to the Plaintiffs’ claim for declaratory relief, however, the Plaintiffs have pled, no grounds for inclusion of Blue Cross in that claim. In fact, Blue Cross is mentioned only in the title of Count III, with no allegations whatsoever to tie Blue Cross to the claim. Thus, if the Plaintiffs’ claims had otherwise survived dismissal and summary judgment, Count III of the Amended Complaint, seeking declaratory relief, would be dismissed for failure to state a claim against Defendant Blue Cross. IV. In sum, we find that all four Defendants— including both the Insurer Defendants and Blue Cross — are entitled to summary judgment as to every claim asserted in the Plaintiffs! Amended Complaint because the Insurer Defendants in this case sold no group insurance or plan of insurance within the meaning of the MSP statute. See supra Part III.A. Moreover, we conclude that the Individual Plaintiffs lack standing to maintain claims for breach of contract (Count II) and violations of the RICO statute (Counts IV-VII) because they have suffered no injury, and the Employer Plaintiffs lack standing to bring claims pursuant to the MSP statute (Count I) and for breach of contract (Count II). See supra Part III.B. We further determine that if the Plaintiffs’ MSP cause of action had survived summary judgment, it would be limited to claims for services rendered on February 28,1991, or later, and the RICO claims would be barred entirely by the" }, { "docid": "19661008", "title": "", "text": "extent that the government is exposed to financial risk.” Id. at 547. Although Livingston was decided within the context of a Medicare fiscal intermediary, the court finds no significant distinction from a CHAMPUS fiscal intermediary and that the same analysis should apply to a CHAMPUS fiscal intermediary. The Livingston court’s focus on whether the government is exposed to financial risk is in line with the general approach to analyzing sovereign immunity which is to examine “the nature of the relief which may be provided.” Panola Land Buyers Assoc. v. Shuman, 762 F.2d 1550, 1555 (11th Cir.1985). Another district court in this circuit has applied this analysis and has found that a fiscal intermediary was not entitled to sovereign immunity on a fraud claim. The court’s decision was affirmed by the Eleventh Circuit in a per curiam opinion in which the Eleventh Circuit attached the district court’s opinion as an appendix and stated that it based the affirmance upon the holding and rationale contained in one part of the opinion, and expressed no view as to the rest of the opinion. See Brooks v. Blue Cross and Blue Shield of Florida, 116 F.3d 1364 (11th Cir.1997). The district court’s opinion in Brooks addressed the plaintiffs argument that the defendant was not entitled to sovereign immunity because the claims were based on actions exceeding Blue Cross and Blue Shield’s authority to act on the government’s be half. Id. at 1382. The court stated that it agreed with this argument to the extent that the plaintiffs had pled injury based on fraudulent conduct. Id. The court concluded that because the conduct was not within what the government had agreed to indemnify, the basis for sovereign immunity was eliminated since the government would not have to pay the judgment. Id. In this case, there is no allegation or evidence of an indemnity agreement, so the court need not decide whether or not an indemnity agreement is determinative of sovereign immunity, as at least one district court in Alabama has held. See Livingston, 788 F.Supp. at 547; but see Rochester Methodist Hospital v. Travelers Ins." }, { "docid": "10696200", "title": "", "text": "albeit in the qualified immunity context, the Supreme Court has warned that “a purely functional approach [to the private entity immunity inquiry, as used in Shands,] bristles with difficulty,” because “government and private industry may engage in fundamentally similar activities,” even though private entities are not entitled to immunity. Richardson v. McKnight, 521 U.S. 399, 409, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997). Second, and more importantly, the Medicare cases upon which Shands relied did not accord sovereign immunity to private parties. Instead, Medicare regulations provide that private intermediaries “act on behalf’ of the government, and that the government is “the real party in interest” in any litigation involving the program. See 42 C.F.R. § 421.5(b). Their contracts therefore treat suits against them as against the sovereign governmental entity itself, rather than extending sovereignty to private parties. We have recognized as much. See Kaiser v. Blue Cross of Calif, 347 F.3d 1107, 1117 (9th Cir.2003) (discussing “real party in interest” regulations and citing Shands as part of the Medicare line of cases). There is no such regulatory or statutory provision here. Moreover, the Eleventh Circuit recently recognized that Shands does not support ACCS’s claim to sovereign immunity for its contractual diversion program activities. In Rosario v. American Corrective Counseling Services, Inc., 506 F.3d 1039, 1047 (11th Cir.2007), which is on all fours with this appeal in all relevant regards, the Eleventh Circuit held that even the functional analysis supplied by Shands did not support ACCS’s claimed immunity, holding that “[t]he standard for Eleventh Amendment immunity has never been held to apply simply because an independent contractor performs some government function. ... ACCS is not entitled to Eleventh Amendment immunity.” Id. There is, then, no case of which we are aware in any circuit that would support granting state sovereign immunity to ACCS. III. The law makes clear that state sovereign immunity does not extend to private entities. The district court was therefore right to let this suit proceed. AFFIRMED. . Whether these fees are authorized by statute is in dispute in this litigation and is a question that we do" }, { "docid": "19661006", "title": "", "text": "to defraud claims. Blue Cross and Blue Shield argues that its status as a fiscal intermediary is sufficient to afford it sovereign immunity as to all of Holton’s claims. In support of this argument, Blue Cross and Blue Shield cites this court to Neurological Associates-H. Hooshmand, M.D., P.A. v. Bowen, 658 F.Supp. 468 (S.D.Fla.1987). The court does not find that binding precedent sweeps as broadly as Blue Cross and Blue Shield has argued, however. There is some language in a decision of the forcner Fifth Circuit which suggests that sovereign immunity for fiscal intermediaries includes tort claims regardless of the basis for liability. See Peterson v. Weinberger, 508 F.2d 45, 51 (5th Cir.1975)(stating that the corporate defendants were entitled to sovereign immunity from tort claims because they were Medicare fiscal intermediaries who act as agents at the sole direction of the Secretary of Health, Education and Welfare). The former Fifth Circuit’s discussion must be viewed, however, in light of the court’s finding that “[t]he corporate defendants, as fiscal intermediaries, did no more than act on the instructions received by them.” Id. at 50. In other words, the former Fifth Circuit applied immunity for a tort claim within the context of a case in which it had already determined that the fiscal intermediary was acting in accordance with its instructions from the government. This court finds that the interpretation by two federal district courts of this binding precedent is the better reasoned view than the interpretation proposed by Blue Cross and Blue Shield, which is essentially that fiscal intermediaries have absolute immunity. See Livingston v. Blue Cross and Blue Shield of Alabama, 788 F.Supp. 545 (S.D.Ala.1992), affd without op., 996 F.2d 314 (11th Cir.), reh’g en banc denied, 7 F.3d 242 (11th Cir.1993); Brooks v. Blue Cross and Blue Shield of Florida, No. 95-405-CIV-MARCUS, 1995 WL 931702 (September 22,1995). In Livingston, the court interpreted binding case law and stated that it did not read those cases “to extend blanket immunity to Medicare fiscal intermediaries. Rather, a more logical interpretation is that the fiscal intermediary is entitled to sovereign immunity to the" }, { "docid": "19661009", "title": "", "text": "the rest of the opinion. See Brooks v. Blue Cross and Blue Shield of Florida, 116 F.3d 1364 (11th Cir.1997). The district court’s opinion in Brooks addressed the plaintiffs argument that the defendant was not entitled to sovereign immunity because the claims were based on actions exceeding Blue Cross and Blue Shield’s authority to act on the government’s be half. Id. at 1382. The court stated that it agreed with this argument to the extent that the plaintiffs had pled injury based on fraudulent conduct. Id. The court concluded that because the conduct was not within what the government had agreed to indemnify, the basis for sovereign immunity was eliminated since the government would not have to pay the judgment. Id. In this case, there is no allegation or evidence of an indemnity agreement, so the court need not decide whether or not an indemnity agreement is determinative of sovereign immunity, as at least one district court in Alabama has held. See Livingston, 788 F.Supp. at 547; but see Rochester Methodist Hospital v. Travelers Ins. Co., 728 F.2d 1006 (8th Cir.1984)(indemnity agreement does not create sovereign immunity). Instead, this court must address whether the government is the real party in interest because it would have to pay a judgment against Blue Cross and Blue Shield. Under general principles of agency law, Blue Cross and Blue Shield would be liable for its own wrongful acts outside the scope of its authority. The former Fifth Circuit implicitly recognized the applicability of this general principle to fiscal intermediaries in Matranga v. Travelers Ins. Co., 563 F.2d 677, 677-78 (5th Cir. 1977). There, the court extended sovereign immunity to Travelers Insurance Company as a fiscal intermediary, stating, “Travelers was acting under the direction of the Secretary of Health, Education and Welfare and there is nothing in the record to indicate that Travelers was acting outside the perimeters of its official duties in its dealings with Dr. Matranga.” Id. Such language suggests that, had there been evidence in the record indicating that Travelers was acting outside the perimeters of its official duties, the fiscal intermediary" }, { "docid": "19660998", "title": "", "text": "government because the parties have neither alleged the existence of, nor referred this court to any, indemnity agreement relevant to this case. The court first notes that merely because this court has concluded that Blue Cross and Blue Shield has a colorable defense under federal law for purposes of removal jurisdiction does not preclude this court’s inquiry into whether or not Blue Cross and Blue Shield is entitled to sovereign immunity. Even once a federal court determines that it has subject matter jurisdiction under § 1442(a) because a defendant has invoked sovereign immunity, the court may later determine that the defendant is not in fact entitled to such immunity. See Jamison, 14 F.3d at 238. As was earlier discussed, under § 1442(a)(1), removal jurisdiction exists whenever a color-able defense has been asserted, regardless of the ultimate outcome of the validity of that defense. Id. Binding precedent in this circuit recognizes that fiscal intermediaries under the Medicare program are entitled to sovereign immunity. See Matranga v. Travelers Ins. Co., 563 F.2d 677, 677-78 (5th Cir.1977) ; Peterson v. Weinberger, 508 F.2d 45 (5th Cir.1975). Based on this precedent, a district court in this circuit extended sovereign immunity to CHAM-PUS fiscal intermediaries. See Vanderberg v. Carter, 523 F.Supp. 279, 285 (N.D.Ga.1981), affd without op., 691 F.2d 510 (11th Cir.1982). Fiscal intermediaries are entitled to sovereign immunity, however, only “to the extent that the government is exposed to financial risk.” Livingston v. Blue Cross and Blue Shield of Alabama, 788 F.Supp. 545, 548 (S.D.Ala.1992), ajfd without op., 996 F.2d 314 (11th Cir.), reh’g en bane denied, 7 F.3d 242 (11th Cir.1993). Thus, the court must ask who will pay a judgment. If recovery would come directly from Blue Cross and Blue Shield, Blue Cross and Blue Shield would not be entitled to sovereign immunity. See Rochester Methodist Hosp. v. Travelers Ins. Co., 728 F.2d 1006,1012 (8th Cir.1984). Blue Cross and Blue Shield states that federal regulations make it clear that funds expended for CHAMPUS benefits are federal funds provided to CHAMPUS fiscal intermediaries solely to pay CHAM-PUS claims, and are not a part" }, { "docid": "22167635", "title": "", "text": "administrative procedures in assigning the code. The district court, however, described Pani’s claim as one for negligence “for assigning [Pani] an improper billing code, for failing to verify that code with HHS, and for subsequently reporting to HHS that Pani had filed fraudulent reimbursement claims using that same code.” Pani, 1996 WL 734889, at *4. We limit our review, as we must, to the allegations contained within the four corners of Pani’s complaint. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996)(“ ‘[i]n considering a motion to dismiss for failure to state a claim ... a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference’” (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991))); Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir.1995) (same); Palda v. General Dynamics Corp., 47 F.3d 872, 875 (7th Cir.1995) (same); Doyle v. Oklahoma Bar Ass’n, 998 F.2d 1559, 1566 (10th Cir.1993) (same). Accordingly, the only issue, before us is whether a Medicare carrier is entitled to official immunity for the performance of its duty to investigate and report possible fraud. Several circuits have held that a fiscal intermediary or carrier is entitled to sovereign immunity on the rationale that the suit at issue is really one against the United States because the fiscal intermediary or carrier is a government agent that “act[s] on behalf of the [Medicare] Administrator in carrying out certain administrative responsibilities that the law imposes” and is entitled to indemnification from the United States, which, therefore, is “the real party of interest.” 42 C.F.R. 421.5(b); see, e.g., Brooks v. Blue Cross and Blue Shield, 116 F.3d 1364, 1382-83 (11th Cir.1997) (fiscal intermediary entitled to sovereign immunity only to the extent that government is exposed to financial risk); Anderson v. Occidental Life Ins. Co., 727 F.2d 855, 856-57 (9th Cir.1984) (per curiam) (claim for negligent infliction of mental anguish by medicare carrier barred by sovereign immunity); Matranga v. Travelers Ins. Co., 563 F.2d 677 (5th" }, { "docid": "19660999", "title": "", "text": "Peterson v. Weinberger, 508 F.2d 45 (5th Cir.1975). Based on this precedent, a district court in this circuit extended sovereign immunity to CHAM-PUS fiscal intermediaries. See Vanderberg v. Carter, 523 F.Supp. 279, 285 (N.D.Ga.1981), affd without op., 691 F.2d 510 (11th Cir.1982). Fiscal intermediaries are entitled to sovereign immunity, however, only “to the extent that the government is exposed to financial risk.” Livingston v. Blue Cross and Blue Shield of Alabama, 788 F.Supp. 545, 548 (S.D.Ala.1992), ajfd without op., 996 F.2d 314 (11th Cir.), reh’g en bane denied, 7 F.3d 242 (11th Cir.1993). Thus, the court must ask who will pay a judgment. If recovery would come directly from Blue Cross and Blue Shield, Blue Cross and Blue Shield would not be entitled to sovereign immunity. See Rochester Methodist Hosp. v. Travelers Ins. Co., 728 F.2d 1006,1012 (8th Cir.1984). Blue Cross and Blue Shield states that federal regulations make it clear that funds expended for CHAMPUS benefits are federal funds provided to CHAMPUS fiscal intermediaries solely to pay CHAM-PUS claims, and are not a part of or obtained from the CHAMPUS fiscal intermediaries funds related to other programs or insurance coverage. 32 C.F.R. § 199.1(e). In a previous Memorandum Opinion entered on March 4, 1999, this court concluded that the United States is the real party in interest for any purported breach of contract resulting from Blue Cross and Blue Shield’s administration of CHAMPUS. The court also concluded, however, that it has jurisdiction over any contract claim which does not exceed $10,-000, pursuant to the Tucker Act, codified at 28 U.S.C. §§ 1491 and 1346(a)(1). See Memorandum Opinion, March 4, 1999, at page 8; see also Trauma Service Group v. Keating, 907 F.Supp. 110, 115 n. 5 (E.D.Pa.1995)(stating that the United States has waived its immunity for contract claims under CHAMPUS). On March 15, 1999, Holton filed a stipulation that the amount in controversy for his breach of contract claim is $10,000 or less. Since the government does not have sovereign immunity for the contract claim, and the Tucker Act allows for suits not in excess of $10,000 to proceed" }, { "docid": "19660996", "title": "", "text": "has adequately put in issue the question of whether it was acting as an agent of the United States so as to provide a colorable federal defense of sovereign immunity. Accordingly, this court has jurisdiction in this case pursuant to § 1442(a)(1). B. Asserted Grounds for Dismissal Holton has brought a claim for breach a contract and has brought fraud claims against Blue Cross and Blue Shield. Blue Cross and Blue Shield in turn has moved for dismissal on several grounds including that (1) it is entitled to sovereign immunity as a CHAMPUS fiscal intermediary administering a government benefit plan (2) Holton has failed to exhaust administrative remedies under the CHAMPUS regulatory scheme; (3) Holton failed to state his fraud claims with the particularity required under Fed.R.Civ.P. 9(b); and (5) Holton failed to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). 1. Contract Claim Holton has brought a breach of contract claim against Blue Cross and Blue Shield. Blue Cross and Blue Shield argues that it, like the United States, has sovereign immunity as to this claim and also argues that Holton has failed to exhaust his administrative remedies. The court will first address Blue Cross and Blue Shield’s argument that it is entitled to sovereign iihmunity as a CHAMPUS fiscal intermediary. a. Sovereign Immunity Blue Cross and Blue Shield argues that as an agent of the government it, like the United States, is entitled to sovereign immunity as to the Plaintiffs claims because it acts under the control of Director of OCHAMPUS, and ultimately the Secretary of the Department of Defense. Hol-ton responds that Blue Cross and Blue Shield is not entitled to sovereign immunity because the United States is not the real party in interest in this case. Even though there is precedent outside of the Eleventh Circuit to the contrary, Holton states that he concedes that if there were an indemnity agreement by which a judgment would subject the government to liability, sovereign immunity would be afforded. As Holton points out, however, this court cannot base any decision on possible indemnity by the" }, { "docid": "22167636", "title": "", "text": "Accordingly, the only issue, before us is whether a Medicare carrier is entitled to official immunity for the performance of its duty to investigate and report possible fraud. Several circuits have held that a fiscal intermediary or carrier is entitled to sovereign immunity on the rationale that the suit at issue is really one against the United States because the fiscal intermediary or carrier is a government agent that “act[s] on behalf of the [Medicare] Administrator in carrying out certain administrative responsibilities that the law imposes” and is entitled to indemnification from the United States, which, therefore, is “the real party of interest.” 42 C.F.R. 421.5(b); see, e.g., Brooks v. Blue Cross and Blue Shield, 116 F.3d 1364, 1382-83 (11th Cir.1997) (fiscal intermediary entitled to sovereign immunity only to the extent that government is exposed to financial risk); Anderson v. Occidental Life Ins. Co., 727 F.2d 855, 856-57 (9th Cir.1984) (per curiam) (claim for negligent infliction of mental anguish by medicare carrier barred by sovereign immunity); Matranga v. Travelers Ins. Co., 563 F.2d 677 (5th Cir.1977) (per curiam) (sovereign immunity prevented action against intermediary for alleged misconduct in processing claims); Peterson v. Weinberger, 508 F.2d 45, 51-52 (5th Cir.1975) (sovereign immunity applied to claim of alleged wrongful suspension of payments for fraud); Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F.2d 1073, 1074-75 (D.C.Cir.1973) (claim for unpaid benefits barred by sovereign immunity). Fewer circuit courts have decided the issue of whether fiscal intermediaries and carriers are entitled to official immunity for discretionary acts taken within the scope of their authority under the Medicare Act. See, e.g., Bushman v. Seiler, 755 F.2d 653, 655-56 (8th Cir.1985) (official immunity granted to consultant of Medicare carrier for reporting fraud to carrier); Peterson v. Blue Cross/Blue Shield, 508 F.2d 55, 58 (5th Cir.1975) (holding by implication that employee of both fiscal intermediary and carrier was entitled to official immunity in connection with suspension of payments for fraud). Several district courts, however, have held that fiscal intermediaries and carriers are entitled to official immunity. See, e.g., Midland Psychiatric Assocs. v. United States," }, { "docid": "22167637", "title": "", "text": "Cir.1977) (per curiam) (sovereign immunity prevented action against intermediary for alleged misconduct in processing claims); Peterson v. Weinberger, 508 F.2d 45, 51-52 (5th Cir.1975) (sovereign immunity applied to claim of alleged wrongful suspension of payments for fraud); Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F.2d 1073, 1074-75 (D.C.Cir.1973) (claim for unpaid benefits barred by sovereign immunity). Fewer circuit courts have decided the issue of whether fiscal intermediaries and carriers are entitled to official immunity for discretionary acts taken within the scope of their authority under the Medicare Act. See, e.g., Bushman v. Seiler, 755 F.2d 653, 655-56 (8th Cir.1985) (official immunity granted to consultant of Medicare carrier for reporting fraud to carrier); Peterson v. Blue Cross/Blue Shield, 508 F.2d 55, 58 (5th Cir.1975) (holding by implication that employee of both fiscal intermediary and carrier was entitled to official immunity in connection with suspension of payments for fraud). Several district courts, however, have held that fiscal intermediaries and carriers are entitled to official immunity. See, e.g., Midland Psychiatric Assocs. v. United States, 969 F.Supp. 543, 551-52 (W.D.Mo.1997) (carrier entitled to official immunity for alleged wrongful denial of benefits); C. Jack Friedman, Ph.D. & Assocs., P.C. v. Pennsylvania Blue Shield, 836 F.Supp. 263, 268 (E.D.Pa.1993) (carrier entitled to official immunity for claims based on its report of fraud); Livingston v. Blue Cross and Blue Shield, 788 F.Supp. 545, 549-50 (S.D.Ala.1992) (fiscal intermediary entitled to official immunity for claims arising from intermediary’s instigation of fraud prosecution); Group Health Inc. v. Blue Cross Ass’n, 739 F.Supp. 921, 932-33 (S.D.N.Y.1990) (fiscal intermediary entitled to official immunity for claims based on negligent misrepresentations). In Westfall v. Erwin, 484 U.S. 292, 295-97, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), the Supreme Court held that a federal official is shielded from state-law tort liability for acts that are discretionary in nature and fall within the outer perimeter of the official’s duties. As Westfall made clear, the determination of whether immunity should apply requires a functional inquiry: “immunity attaches to particular official functions, not to particular offices.” Id. at 296 n. 3, 108 S.Ct. 580." }, { "docid": "19660997", "title": "", "text": "sovereign immunity as to this claim and also argues that Holton has failed to exhaust his administrative remedies. The court will first address Blue Cross and Blue Shield’s argument that it is entitled to sovereign iihmunity as a CHAMPUS fiscal intermediary. a. Sovereign Immunity Blue Cross and Blue Shield argues that as an agent of the government it, like the United States, is entitled to sovereign immunity as to the Plaintiffs claims because it acts under the control of Director of OCHAMPUS, and ultimately the Secretary of the Department of Defense. Hol-ton responds that Blue Cross and Blue Shield is not entitled to sovereign immunity because the United States is not the real party in interest in this case. Even though there is precedent outside of the Eleventh Circuit to the contrary, Holton states that he concedes that if there were an indemnity agreement by which a judgment would subject the government to liability, sovereign immunity would be afforded. As Holton points out, however, this court cannot base any decision on possible indemnity by the government because the parties have neither alleged the existence of, nor referred this court to any, indemnity agreement relevant to this case. The court first notes that merely because this court has concluded that Blue Cross and Blue Shield has a colorable defense under federal law for purposes of removal jurisdiction does not preclude this court’s inquiry into whether or not Blue Cross and Blue Shield is entitled to sovereign immunity. Even once a federal court determines that it has subject matter jurisdiction under § 1442(a) because a defendant has invoked sovereign immunity, the court may later determine that the defendant is not in fact entitled to such immunity. See Jamison, 14 F.3d at 238. As was earlier discussed, under § 1442(a)(1), removal jurisdiction exists whenever a color-able defense has been asserted, regardless of the ultimate outcome of the validity of that defense. Id. Binding precedent in this circuit recognizes that fiscal intermediaries under the Medicare program are entitled to sovereign immunity. See Matranga v. Travelers Ins. Co., 563 F.2d 677, 677-78 (5th Cir.1977) ;" }, { "docid": "19661010", "title": "", "text": "Co., 728 F.2d 1006 (8th Cir.1984)(indemnity agreement does not create sovereign immunity). Instead, this court must address whether the government is the real party in interest because it would have to pay a judgment against Blue Cross and Blue Shield. Under general principles of agency law, Blue Cross and Blue Shield would be liable for its own wrongful acts outside the scope of its authority. The former Fifth Circuit implicitly recognized the applicability of this general principle to fiscal intermediaries in Matranga v. Travelers Ins. Co., 563 F.2d 677, 677-78 (5th Cir. 1977). There, the court extended sovereign immunity to Travelers Insurance Company as a fiscal intermediary, stating, “Travelers was acting under the direction of the Secretary of Health, Education and Welfare and there is nothing in the record to indicate that Travelers was acting outside the perimeters of its official duties in its dealings with Dr. Matranga.” Id. Such language suggests that, had there been evidence in the record indicating that Travelers was acting outside the perimeters of its official duties, the fiscal intermediary would not have been entitled to sovereign immunity. Blue Cross and Blue Shield has argued, citing Bowen, that to conduct an inquiry into whether the defendant was acting within the scope of its authority is to confuse sovereign and official immunity. This court does not agree, however, and finds that the line drawn by the court in Livingston between sovereign and official immunity is more persuasive. As the Livingston court explained, sovereign immunity bars all suits, even suits alleging tor-tious conduct, if the suit is an unconsented suit against the sovereign. Livingston, 788 F.Supp. at 548. The key is whether the government is exposed to financial risk. Id. Under this rule, the court is not seeking to determine whether the defendant acted within the scope of its duties to determine whether or not immunity applies, but to determine whether or not the United States will ultimately have to pay a judgment, which in turn determines whether or not immunity applies. In other words, the court does not find that there is a bright line rule" }, { "docid": "10696199", "title": "", "text": "“difficult to evaluate in the context of a private corporation” because “[m]ost ‘arm of the state’ eases address the distinction between local and state control,” rather than the operation of a purely private entity. Id. Only the Eleventh Circuit has ever, as far as we can ascertain, accorded sovereign immunity to a private entity, under an analysis which we do not find persuasive and which, in any event, the Eleventh Circuit has made clear does not accord immunity to ACCS. Shands Teaching Hospital and Clinics, Inc. v. Beech Street Corporation, 208 F.3d 1308, 1311 (11th Cir.2000), provided a private administrator of a state health care plan with sovereign immunity, reasoning that “[t]he pertinent inquiry is not into the nature of a corporation’s status in the abstract, but its function or role in a particular context,” and that the health care plan was essentially controlled by the state. Id. Relying upon eases which it characterized as extending federal sovereign immunity to Medicare providers, Shands extended immunity. Id. Shands was, in our view, doubly in error. First, albeit in the qualified immunity context, the Supreme Court has warned that “a purely functional approach [to the private entity immunity inquiry, as used in Shands,] bristles with difficulty,” because “government and private industry may engage in fundamentally similar activities,” even though private entities are not entitled to immunity. Richardson v. McKnight, 521 U.S. 399, 409, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997). Second, and more importantly, the Medicare cases upon which Shands relied did not accord sovereign immunity to private parties. Instead, Medicare regulations provide that private intermediaries “act on behalf’ of the government, and that the government is “the real party in interest” in any litigation involving the program. See 42 C.F.R. § 421.5(b). Their contracts therefore treat suits against them as against the sovereign governmental entity itself, rather than extending sovereignty to private parties. We have recognized as much. See Kaiser v. Blue Cross of Calif, 347 F.3d 1107, 1117 (9th Cir.2003) (discussing “real party in interest” regulations and citing Shands as part of the Medicare line of cases). There is no" }, { "docid": "19661004", "title": "", "text": "coverage, which would allow the agency to correct its own mistake and provide Holton with coverage without expending more judicial resources. In light of these factors, there is no reason for the court to set a precedent for CHAMPUS plaintiffs to circumvent the administrative process. In fact, another district court which has confronted the question of exhaustion of administrative remedies found that a plaintiff was required to exhaust administrative remedies under CHAMPUS. See Trauma Serv. Group v. Keating, 907 F.Supp. 110, 113-14 (E.D.Pa.1996) Even if the policies underlying exhaustion would be furthered in a particular case, the court will not require exhaustion where 1) the administrative remedy is inadequate because it does not exist, would not provide relief commensurate with the claim, or would unreasonably delay the action; or 2) the claim will clearly be denied or, as in a constitutional attack on the administrative scheme, administrative action will not resolve the merits of the claim. Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1556 (11th Cir.1985); see also Rogers v. Bennett, 873 F.2d 1387, 1393 (11th Cir.1989). In his brief, Holton argues that he is not required to exhaust his administrative remedies because doing so would be futile and because the Defendants clearly violated his statutory rights. Plaintiffs Brief in Response at page 2. Holton has not stated why it would be futile for him to pursue his administrative remedy and the court cannot infer from either his Complaint or his brief any basis for his argument. Establishing a procedure and a forum for resolving unpaid claims is precisely the purpose behind the administrative remedy described in the CHAMPUS regulations. See 32 C.F.R. § 199.10(a). Holton’s second argument also fails because he has alleged that his right to payment has been breached; he has not pointed to any violation of a statutory or constitutional right. Accordingly, Holton’s contract claim is due to be dismissed without prejudice in order to allow him to pursue his administrative remedies. 2. Tort Claims a. Sovereign Immunity Holton also seeks to hold Blue Cross and Blue Shield liable for separate fraud and conspiracy" }, { "docid": "19661005", "title": "", "text": "1387, 1393 (11th Cir.1989). In his brief, Holton argues that he is not required to exhaust his administrative remedies because doing so would be futile and because the Defendants clearly violated his statutory rights. Plaintiffs Brief in Response at page 2. Holton has not stated why it would be futile for him to pursue his administrative remedy and the court cannot infer from either his Complaint or his brief any basis for his argument. Establishing a procedure and a forum for resolving unpaid claims is precisely the purpose behind the administrative remedy described in the CHAMPUS regulations. See 32 C.F.R. § 199.10(a). Holton’s second argument also fails because he has alleged that his right to payment has been breached; he has not pointed to any violation of a statutory or constitutional right. Accordingly, Holton’s contract claim is due to be dismissed without prejudice in order to allow him to pursue his administrative remedies. 2. Tort Claims a. Sovereign Immunity Holton also seeks to hold Blue Cross and Blue Shield liable for separate fraud and conspiracy to defraud claims. Blue Cross and Blue Shield argues that its status as a fiscal intermediary is sufficient to afford it sovereign immunity as to all of Holton’s claims. In support of this argument, Blue Cross and Blue Shield cites this court to Neurological Associates-H. Hooshmand, M.D., P.A. v. Bowen, 658 F.Supp. 468 (S.D.Fla.1987). The court does not find that binding precedent sweeps as broadly as Blue Cross and Blue Shield has argued, however. There is some language in a decision of the forcner Fifth Circuit which suggests that sovereign immunity for fiscal intermediaries includes tort claims regardless of the basis for liability. See Peterson v. Weinberger, 508 F.2d 45, 51 (5th Cir.1975)(stating that the corporate defendants were entitled to sovereign immunity from tort claims because they were Medicare fiscal intermediaries who act as agents at the sole direction of the Secretary of Health, Education and Welfare). The former Fifth Circuit’s discussion must be viewed, however, in light of the court’s finding that “[t]he corporate defendants, as fiscal intermediaries, did no more than act on" }, { "docid": "19661011", "title": "", "text": "would not have been entitled to sovereign immunity. Blue Cross and Blue Shield has argued, citing Bowen, that to conduct an inquiry into whether the defendant was acting within the scope of its authority is to confuse sovereign and official immunity. This court does not agree, however, and finds that the line drawn by the court in Livingston between sovereign and official immunity is more persuasive. As the Livingston court explained, sovereign immunity bars all suits, even suits alleging tor-tious conduct, if the suit is an unconsented suit against the sovereign. Livingston, 788 F.Supp. at 548. The key is whether the government is exposed to financial risk. Id. Under this rule, the court is not seeking to determine whether the defendant acted within the scope of its duties to determine whether or not immunity applies, but to determine whether or not the United States will ultimately have to pay a judgment, which in turn determines whether or not immunity applies. In other words, the court does not find that there is a bright line rule that the agency relationship determines applicability of immunity, but rather that the agency relationship determines whether the government is in fact the party which will have to pay the judgment. In this case, Blue Cross and Blue Shield has claimed that the United States is the real party in interest in the context of a Motion to Dismiss. This court lacks the factual development which existed when the former Fifth Circuit made its ruling in Peterson. The court is simply unable to tell at this point in the proceedings whether or not a judgment which might be rendered on the fraud or conspiracy to defraud claims in this case would or would not ultimately be paid by the government. Accordingly, the court finds that Blue Cross and Blue Shield is not entitled to sovereign immunity on this claim. b. Exhaustion of Administrative Remedies It appears that Blue Cross and Blue Shield intends to argue that Holton’s tort claims are also subject to the exhaustion of administrative remedies requirement. Federal courts have found where an agen" }, { "docid": "19661007", "title": "", "text": "the instructions received by them.” Id. at 50. In other words, the former Fifth Circuit applied immunity for a tort claim within the context of a case in which it had already determined that the fiscal intermediary was acting in accordance with its instructions from the government. This court finds that the interpretation by two federal district courts of this binding precedent is the better reasoned view than the interpretation proposed by Blue Cross and Blue Shield, which is essentially that fiscal intermediaries have absolute immunity. See Livingston v. Blue Cross and Blue Shield of Alabama, 788 F.Supp. 545 (S.D.Ala.1992), affd without op., 996 F.2d 314 (11th Cir.), reh’g en banc denied, 7 F.3d 242 (11th Cir.1993); Brooks v. Blue Cross and Blue Shield of Florida, No. 95-405-CIV-MARCUS, 1995 WL 931702 (September 22,1995). In Livingston, the court interpreted binding case law and stated that it did not read those cases “to extend blanket immunity to Medicare fiscal intermediaries. Rather, a more logical interpretation is that the fiscal intermediary is entitled to sovereign immunity to the extent that the government is exposed to financial risk.” Id. at 547. Although Livingston was decided within the context of a Medicare fiscal intermediary, the court finds no significant distinction from a CHAMPUS fiscal intermediary and that the same analysis should apply to a CHAMPUS fiscal intermediary. The Livingston court’s focus on whether the government is exposed to financial risk is in line with the general approach to analyzing sovereign immunity which is to examine “the nature of the relief which may be provided.” Panola Land Buyers Assoc. v. Shuman, 762 F.2d 1550, 1555 (11th Cir.1985). Another district court in this circuit has applied this analysis and has found that a fiscal intermediary was not entitled to sovereign immunity on a fraud claim. The court’s decision was affirmed by the Eleventh Circuit in a per curiam opinion in which the Eleventh Circuit attached the district court’s opinion as an appendix and stated that it based the affirmance upon the holding and rationale contained in one part of the opinion, and expressed no view as to" } ]

[ { "docid": "8704322", "title": "", "text": "LOKEN, Chief Judge. Former bank officer Jim Thomas was convicted of violating 18 U.S.C. § 1014 by knowingly making a false statement to influence bank action, and of violating 18 U.S.C. § 656 by willfully causing the mis application of bank funds. His sentencing occurred prior to the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). When Thomas raised a Sixth Amendment challenge to the mandatory Guidelines, the district court responded by imposing alternative sentences. Thomas now appeals his conviction, challenging the sufficiency of the evidence and a jury instruction relating to false exculpatory pretrial statements. He also appeals his sentence on various grounds. We affirm the conviction but remand for resentencing in light of Booker. I. Sufficiency of the Evidence Several weeks before Thomas retired as president and branch manager of the Ashdown, Arkansas branch of Regions Bank, he invested $50,000 in EKBA, Inc. During the week before he retired, Thomas served as the initiating loan officer for a $300,000 “lease loan” to EKBA. His actions in causing the Bank to make this loan form the basis for his two counts of conviction. In reviewing his challenge to the sufficiency of the evidence, “we view the evidence and all reasonable inferences therefrom in the light most favorable to the jury’s verdict.” United States v. Flores, 362 F.3d 1030, 1035 (8th Cir.2004). The government presented evidence that Thomas knew the Ashdown branch loan committee could not unilaterally approve the $300,000 loan because a loan in excess of $250,000 must also be approved by the loan committee at the Bank’s regional headquarters in Texarkana. Thomas nonetheless sent a “loan memo” to the Bank’s leasing department in Little Rock stating that the $300,000 loan had been approved by the Ashdown loan committee, knowing that it was leasing office practice to fund a lease loan without verifying that the originating branch had authority to approve the loan. Thus, although the Tex-arkana office neither received nor approved an application for the lease loan, Thomas’s loan memo caused the leasing office to release $300,000 in" } ]

[ { "docid": "19994463", "title": "", "text": "on all counts. During sentencing, the government argued that the overall loss should be the intended loss, excluding any collateral presented by Severson. Severson argued that the money eventually received from the sale of the later-pledged mortgage on the racetrack loan should be applied as collateral to reduce the intended loss. The district court found that the loss amount would be the full amount of the intended loss ($7,136,461.29); it also determined that no credit would be given for any amount received from the racetrack’s sale. Ultimately, the district court found that Severson had a total offense level of 33, with four criminal history points, and a criminal history category of III. This history included one point for prior misdemean- or convictions. The Sentencing Guidelines ranged from 168 to 210 months; the district court sentenced Severson to 140 months’ imprisonment. This timely appeal followed. II. DISCUSSION Severson mounts two attacks on his conviction. He first argues that the government failed to present sufficient evidence of his knowledge of illegality at the time he received three certain loans. Severson also argues that the district court erred by including a “deliberate avoidance” or “ostrich” jury instruction, which allowed the jury to infer that Severson knew of Hardy-man’s fraud when he received the loans. Severson pursues another two-pronged attack on his sentence. He argues that the district court miscalculated the amount at issue when it refused to consider collateral later pledged as security on a loan and that the district court improperly calculated his criminal history level by including prior misdemeanor offenses. A. Conviction Severson challenges only 10 counts of his conviction, which all stem from three particular loans made to Severson. Sever-son argues that the government failed to present sufficient evidence that at the time he received the loans, he was aware that Hardyman had defrauded the bank’s directors by not seeking their approval. A defendant challenging the sufficiency of the evidence must show that “after viewing the evidence in the light most favorable to the prosecution,” no rational trier of fact could have found the essential elements of the crime beyond" }, { "docid": "18864618", "title": "", "text": "STAHL, Circuit Judge. On September 18, 1990, a federal grand jury returned a multiple count indictment against defendant-appellant J. Edward McHugh, a former senior vice-president and loan officer of the Cambridgeport Savings Bank (“CSB”), and defendant-appellant James F. Brennan, a borrower of large sums of money from CSB. The indictment charged both- defendants with one count of conspiracy to commit bank fraud and to willfully misapply bank funds; McHugh with one count of bank fraud, six counts of willful misapplication of bank funds, and four counts of making false entries in bank records; and Brennan with two counts of making false statements to a lending institution, one count of aiding and abetting McHugh’s bank fraud, and six counts of aiding, and abetting McHugh’s- willful misapplication of bank funds. After a twenty-day trial, a jury returned verdicts of guilty against both defendants on most of the counts. It did, however, acquit McHugh on two counts of willful misapplication and Brennan on one count of aiding and abetting a willful misapplication of bank funds. Following the verdict, the trial judge is-\" sued a comprehensive, twenty-seven page memorandum and order denying Brennan’s pending motion for acquittal on all counts charged, but granting McHugh’s pending motion for acquittal insofar as it related to the four counts for making false entries in bank records. After a two-day sentencing hearing, Brennan was sentenced to forty-one months in prison and McHugh was sentenced to a year and a day in prison. On appeal, McHugh and Brennan raise a host of challenges to the trial proceedings. Their complaints can be loosely divided into two categories: (1) there was insufficient evidence to support certain of their convictions, and (2) a number of decisions of the trial judge regarding the parameters of the trial, the admissibility of certain disputed evidence, and the jury instructions constituted reversible error. Brennan also advances miscellaneous arguments that he was victimized by constitutionally infirm legal representation at trial and that his sentence was unlawful. After carefully reviewing the voluminous record in the light of appellants’ contentions, we affirm. I. BACKGROUND Because attempting to recount the" }, { "docid": "7816657", "title": "", "text": "CYR, Circuit Judge. Appellant challenges the concurrent twenty-seven month sentences imposed under the Sentencing Guidelines following his conviction on forty felony counts charging bank fraud, see 18 U.S.C. § 1344, misapplication and embezzlement of bank funds, see 18 U.S.C. § 656, or causing false entries in the records of a federally insured bank, see 18 U.S.C. § 1005. Appellant contends that the district court’s refusal to conduct an evidentiary hearing to deter mine the amount of “victim loss” occasioned by his criminal conduct constituted an abuse of discretion and that the court applied an incorrect legal standard in its calculation of “victim loss.” We affirm. I BACKGROUND Appellant was a Vice President and Senior Lending Officer with the Bank of New England (“BNE”), specializing in commercial real estate loans. All of the crimes for which appellant was sentenced involved misapplications of BNE funds in connection with five commercial real estate loan transactions. II DISCUSSION Generously construed, appellant’s brief presents two issues for consideration. A. Evidentiary Hearing Before the presentence report (“PSR”) was ever submitted, appellant asked the district court to conduct an evidentiary hearing to “determine the amount of loss” occasioned BNE. The request for hearing contained no evidentiary proffer, beyond its conclusory allusion to evidence adduced during the jury trial at which the sentencing judge presided. The district court declined to conduct an evidentiary hearing. The PSR recommended that the “victim loss” calculation be set at approximately $721,000, within the $500,000 to $1,000,000 range for which an eight-level enhancement is indicated. See U.S.S.G. § 2Fl.l(b)(l)(I). Appellant’s entire challenge to the “victim loss” calculation in the PSR consisted of a verbatim reassertion of the grounds stated in support of the previous request for hearing, see supra note 2, once again without an evidentiary proffer. Moreover, throughout the sentencing proceedings defendant proposed no alternative “victim loss” calculation. The ultimate “victim loss” calculation by the district court — “something over $700,000” — closely mirrored the PSR recommendation. The denial of an evidentiary hearing on a sentencing guideline issue is re viewable only for “abuse of discretion.” See United States v. Gerante, 891" }, { "docid": "21563823", "title": "", "text": "PER CURIAM. Paul W. Woods, former President of the federally insured Branch County Bank, appeals his conviction for willful misapplication of bank funds under 18 U.S.C. § 656. The indictment charged him with making and concealing unauthorized loans to himself, as follows: PAUL W. WOODS, defendant herein, being an officer and employee, that is, President of the Branch County Bank (BCB), the deposits of which bank were insured by the Federal Deposit Insurance Corporation (FDIC), did, with intent to injure and defraud the said BCB, willfully and knowingly misapply and convert to his own use TWENTY ONE [sic] THOUSAND THREE HUNDRED EIGHTY-FIVE ($21,385.00) Dollars of the monies, funds and credits of the BCB by making and causing to be made a loan totalling such amount, by executing an Installment Loan Agreement dated July 26, 1983 in the name of Richard King, ... when in truth and fact, as PAUL W. WOODS then well knew he was to receive the proceeds from the loan. The parties stipulated that the bank was insured by FDIC and that Woods was an officer of the bank at the time he authorized the installment loan to King. He signed King’s name on the loan agreement which listed King’s address as “c/o C & F Vending.” Woods had a business interest in C & F; King had no such interest and did not use that address. The bank’s rules limited unsecured loans to its executive officers to a maximum of $25,000, but prohibited them from making loans to themselves without approval from the board of directors. Individuals other than the bank’s officers could obtain unsecured loans to a maximum of $75,000. Woods was authorized to approve loans and each renewal was required to be a new loan. For many years, the bank had provided financing to King. Woods handled the transactions and signed the required notes under an oral “power of attorney.” In 1981, King agreed to loan $3,000 to $5,000 to Woods, who had said that he needed the money to help C & F. Their understanding was that King would borrow the money from" }, { "docid": "21611948", "title": "", "text": "BOWMAN, Circuit Judge. Otha “Buddy” Chandler, Jr. appeals his conviction on one count of causing a false entry to be made in a book, report or statement of a savings and loan association, a violation of 18 U.S.C. § 1006 (1988). We affirm. I. Chandler was Vice President and Senior Commercial Loan Officer of Savers Federal Savings and Loan Association of Little Rock (Savers). In December 1983, he agreed, on behalf of Savers, to purchase ten $100,000.00 loans to assist one of the institution’s customers. Originated by the Bank of Morton, Mississippi, the loans were sold to Savers “without recourse” via participation certificates. Two letters were prepared during the course of this transaction. An officer of the Bank of Morton signed the first letter, which stated that the loans referred to above were purchased “with recourse.” The second letter, signed by Chandler as an agent of Savers, declared that the transfer was made “without recourse.” Chandler placed only the “with recourse” letter in the Savers loan file. When the customer defaulted, Savers attempted to collect from the Bank of Morton. The latter produced the “without recourse” letter, and Savers suffered a one million dollar loss. In December 1988, Chandler was charged in a twenty-two count indictment. Count One, the only count relevant to this appeal, charged him with causing a false entry to be made in the books, reports or statements of Savers, a violation of 18 U.S.C. § 1006. After fourteen days of trial, the jury returned guilty verdicts on Count One, the false entry count, and on four counts of misapplication of funds. Chandler was sentenced to four years of incarceration, with a consecutive four-year term of probation, and fined a total of $15,000.00. On appeal to this Court, Chandler contends that Count One failed to charge an offense under the relevant statute and that the evidence was insufficient to sustain a conviction thereunder. II. Chandler argues that Count One of the indictment “merely alleges that a letter ... was not in the files of Savers. It does not specify by description, or by a copy, a false" }, { "docid": "23491635", "title": "", "text": "UANA DIAMOND ROVNER, Circuit Judge. The defendants in this mail and wire fraud prosecution are former officers of Germania Bank, a St. Louis-based savings and loan association. After a lengthy trial, a jury convicted the bank’s former chief executive officer, Edward L. Morris, and its former chief operating officer, Steven M. Gardner, on two counts of mail (18 U.S.C. § 1341) and one count of wire fraud (18 U.S.C. § 1343) in connection with Germania’s $10 million offering of subordinated capital notes (“Schnotes”) between October 1987 and March 1988. The district court sentenced Morris and Gardner to prison terms of forty-six months, but stayed those sentences during the pendency of their appeals. In challenging their convictions, Morris and Gardner argue that the government’s evidence at trial was insufficient to establish violations of the mail and wire fraud statutes and, alternatively, that they are entitled to new trials due to the government’s failure to produce exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendants also challenge the sentences they received under the Sentencing Guidelines, contending that the district court erred in calculating the amount of loss attributable to their fraud under U.S.S.G. § 2F1.1(b)(1), and in refusing to depart downward from their sentencing range to account for other alleged causes of that loss. For the reasons that follow, we affirm defendants’ convictions and sentences. I. Prior to the deregulation of the savings and loan industry in the early 1980s, Germa-nia had primarily been involved in residential real estate loans. After deregulation, however, the bank expanded its loan portfolio, involving itself in larger multi-family residential and commercial projects. This case involves problems that developed in the bank’s loan portfolio in 1986 and 1987, and particularly the bank’s decisions in taking and in failing to take loss reserves on that portfolio. The crux of the government’s case is that the Executive Committee of Germania’s Board of Directors failed to approve an additional $9.3 million in loan loss reserves recommended by bank management in September 1987 pursuant to an in-depth quarterly review of the bank’s loan" }, { "docid": "6246910", "title": "", "text": "followed by a three-year term of supervised release, and ordered’ him to pay a $1 million fine. The court sentenced Mr. Weidner to concurrent terms of seventy-eight months’ imprisonment, also followed by three years’ supervised release. In this appeal, Mr. Weidner and Mr. Wittig raise a variety of issues relating to the sufficiency of the evidence and the adequacy of the jury instructions. They also challenge their sentences, arguing that the district court erred in calculating the amount of loss and in basing their sentences on factual findings not made by the jury. Although the government’s case was largely circumstantial, we conclude that the evidence was sufficient and that the jury instructions were adequate. However, as to the defendants’ sentencing challenges, we conclude that, in light of the ambiguity of the Guidelines, the district court did err in calculating the amount of the loss. Accordingly we affirm the defendants’ convictions, vacate their sentences, and remand the cases for resentencing in accordance with this opinion and the principles set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). I. BACKGROUND In recounting the relevant facts, we view the record in the light most favorable to the government. See United States v. Radcliff, 331 F.3d 1153, 1157 (10th Cir.2003). A. The Loan Transactions During 2001 and 2002, Mr. Weidner was the .president, chief executive officer, and general counsel of Capital City Bank in Topeka, Kansas. Mr. Wittig was an established Capital City Bank customer with substantial assets: a March 2001 financial statement on file with the bank reported a net worth of $33,921 million. He was the chairman of the board, president, and chief executive officer of Western Resources, Inc., the largest electric utility in Kansas. In 1998, Mr. Wittig borrowed $700,000 to purchase the Landon Mansion in Topeka, Kansas. Two years later, he opened a $1 million line of credit in order to renovate the mansion. By April 2001, Capital City Bank had increased Mr. Wittig’s line of credit to $3.5 million. In early 2001, Michael Earl, another Capital City Bank customer, approached Mr." }, { "docid": "1676257", "title": "", "text": "back to the station with Cooper, and that he had no involvement with Cooper after the time of the paramedic exam. Thus, counsel argued, Markert could not be liable for indifference to Cooper's medical needs, since Cooper had limited this claim to the post-exam period. It is true that Markert did not go immediately to Garrison station; he remained in the Skateland area until approximately 3:30 a.m. However, at that point, he did go back to the station and he did see Paul Cooper there, chained to the detention rail. Markert conceded that Cooper would have been, at that time, at least partially his responsibility. Moreover, when asked if Cooper appeared to be in any distress, Markert stated; “The only distress I remember Mr. Cooper being in was one of probably being there, to begin with, and secondly, saying his stomach hurt and just to make a normal grimace that his stomach hurt.\" Here, too, there is ample evidence to support the jury's finding of liability. . Indeed, defendants themselves rely on this time factor in arguing that there was insufficient evidence to sustain the verdict against Officer Markert. See supra note 1. . The jury was instructed: An injury or damage is proximately caused by an act or failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage. And that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. If you find the defendants committed no wrongful act or if you find that any wrongful act which the defendants did commit, did not proximately cause the injuries complained of by the plaintiff, then you must find in favor of the defendants on the issue of monetary damages____ [I]f the monetary damages claimed by the plaintiff are not related to any action on the part of the defendants, of any of them, then even though the plaintiffs suffered a loss, that loss is not chargeable to these defendants. Thus," }, { "docid": "18776359", "title": "", "text": "Wilpon were successful in obtaining $4.5 million in loans from MNB for the Outrigger project. Loans were made directly to Freedman and Wilpon, to the three newly-formed Outrigger corporations which Freedman and Wilpon controlled, to several other companies controlled by Freedman and Wilpon (including subcontractors on the Outrigger project), and to straw borrowers. Title 12 U.S.C. § 84 prohibits a national bank from lending more than 10 percent of its capital in surplus account to any one borrower or group of related borrowers. MNB’s legal lending limit was $580,000. Despite this limitation, Stefan either approved or obtained approval for over $4.5 million in loans for the Outrigger project. After a three-month trial, the district court acquitted Stefan of a RICO conspiracy charge before sending the case to the jury. The jury subsequently convicted Stefan of five counts of misapplication of bank funds, two counts of wire fraud, two counts of making false statements to a federal bank examiner, one count of mail fraud, one count of interstate transportation of stolen property, and one count of filing a false bank report. Stefan received concurrent sentences of five years probation and 1,000 hours of community service on each count. The jury convicted Freedman on the RICO conspiracy count, nine counts of misapplication of bank funds, two counts of wire fraud, one count of interstate transportation of stolen property, two counts of bankruptcy fraud, and two counts of making false statements on his income tax returns. Freedman received concurrent sentences in the aggregate of seven years. The issues we resolve regard sufficiency of the evidence, admission of evidence, prosecutorial misconduct, indictment sufficiency, and transcript deficiencies. SUFFICIENCY OF THE EVIDENCE Stefan contends that the evidence adduced at trial is insufficient to support his convictions. Freedman adopts Stefan’s argument on the misapplication of bank funds charges and contends that he cannot be convicted of aiding and abetting misapplication of bank funds because the evidence is insufficient to support Stefan’s convictions. In reviewing challenges to sufficiency of the evidence, we must view the evidence in the light most favorable to the government and affirm the convictions" }, { "docid": "7632516", "title": "", "text": "SIMPSON, Circuit Judge: Lloyd W. Sahley was tried before a jury on a seven count indictment, each count of which charged that he made a material false financial statement to a federally insured bank, for the purpose of influencing the action of the bank to approve a loan submitted by him, in violation of Title 18, U.S.C., Section 1014. He was found guilty on three counts, Counts Four, Five and Seven, and acquitted as to Counts One, Two and Three. Count Six was dropped by the government. He was adjudged guilty and sentenced to one year in prison for each of the counts upon which he was convicted, the sentences to run consecutively. On this timely appeal from that judgment of guilty, we affirm the conviction, but vacate the sentence and remand for resentencing. The evidence shows that on July 16, 1973, Sahley, representing himself to be “William George”, met with George Hardesty, the senior vice president of the Merchant’s National Bank, Mobile, Alabama, to obtain a loan to purchase the Town House Motel in Mobile. Mr. Hardesty had Mr. “George” fill out a personal financial statement prior to approval of the loan. All the charges here involved were based on that financial statement. In the financial statement Sahley asserted, inter alia, that he: was not a defendant in any suits or legal actions (Count Four), had investments in Laurels County Country Club in Monticello, New York, worth $640,000 (Count Five), and that his name was William George (Count Seven). Mr. Hardesty granted appellant a loan for $78,000. Sahley defaulted on payments under the loan in May, 1974. The information included in the financial statement was discovered to be false, and Sahley was indicted for these falsifications. Sahley’s appeal raises two major points of error. He first contends that the financial statement was improperly received in evidence, because the subpoena directed to the bank for its production issued without probable cause and was an “unreasonable search” for Fourth Amendment exclusionary purposes. His second contention is that the denial of his attorney’s motion for a continuance violated his constitutional right to" }, { "docid": "1676256", "title": "", "text": "in defendants’ arguments on appeal, and therefore affirm the judgment entered in favor of plaintiff Cooper. Cooper’s attorneys are entitled to the entirety of the fee award ordered by the district court, as well as their reasonable fees incurred in preparation of this appeal. Accordingly, we remand the case to the district court for the sole purpose of determining the additional fees which are now due to plaintiff’s counsel. AFFIRMED AND REMANDED. . Defendant Morseberger, the desk officer at the station, argues that the evidence against him was particularly weak. However, he testified at trial that he was the officer closest to Cooper, on a continuing basis, at the station, and that it was at least partially his responsibility to monitor the detainees. Plaintiff testified that he and the other youths repeatedly complained to the nearby officers — including the desk officer — but that they were ignored or told to shut up. There is ample evidence to support the verdict against Morseberger. At oral argument, Officer Markert’s attorney alleged that Markert did not travel back to the station with Cooper, and that he had no involvement with Cooper after the time of the paramedic exam. Thus, counsel argued, Markert could not be liable for indifference to Cooper's medical needs, since Cooper had limited this claim to the post-exam period. It is true that Markert did not go immediately to Garrison station; he remained in the Skateland area until approximately 3:30 a.m. However, at that point, he did go back to the station and he did see Paul Cooper there, chained to the detention rail. Markert conceded that Cooper would have been, at that time, at least partially his responsibility. Moreover, when asked if Cooper appeared to be in any distress, Markert stated; “The only distress I remember Mr. Cooper being in was one of probably being there, to begin with, and secondly, saying his stomach hurt and just to make a normal grimace that his stomach hurt.\" Here, too, there is ample evidence to support the jury's finding of liability. . Indeed, defendants themselves rely on this time factor" }, { "docid": "21509146", "title": "", "text": "sentence. I. BACKGROUND The government contended that Mbaye and his three co-defendants ran a mortgage-fraud scheme. The general structure of the scheme can be explained by example: a homeowner wants to sell her house for $250,000 but has difficulty selling at that price. A fraudster agrees to buy the house for $400,000 if the seller gives the extra $150,000 right back to the fraudster. The fraudster borrows the purchase money from a bank by lying — he convinces the bank both that the property is actually worth $400,000 and that he has the ability to pay back that amount. The bank has been defrauded. It was convinced by lies to hand out $400,000 and in return it received a security interest worth only $250,000 (or less, since the seller initially had trouble selling at that price). An additional wrinkle: the fraudster doesn’t take out loans in his own name — he finds “straw” purchasers willing to let their names be used, for a small fee. That example roughly describes the transactions in Mbaye’s case. The exact details are unnecessary because Mbaye admits to all of his conduct and admits that the scheme was fraudulent. He contends only that his co-defendants were the fraudsters and he was duped into helping them without knowing they were committing fraud. Because fraud requires a culpable state of mind, he argued at trial that he was innocent and he argues on appeal that the evidence of his guilt was insufficient. The jury rejected his story and convicted him. At sentencing, the judge found that Mbaye had obstructed justice by lying about material facts. That finding increased Mbaye’s offense level and accordingly his Guidelines-recommended sentence. He argues on appeal that the judge’s finding was erroneous and insufficiently explained. With the obstruction-of-justice enhancement, the Guidelines recommended a sentence between 70 and 87 months. The judge imposed one of 35 months, which Mbaye argues is substantively unreasonable because it is too long. II. ANALYSIS A. Evidence Sufficient to Convict In analyzing Mbaye’s challenge to the sufficiency of the evidence, we view the evidence “in the light most favorable" }, { "docid": "3210147", "title": "", "text": "LUCERO, Circuit Judge. Garland Lee Waldroop II, having been convicted of bank fraud and conspiracy to commit bank fraud, appeals his convictions on the basis of insufficient evidence. He also argues that his sentence was imper-missibly enhanced based on judge-found facts in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and that, when enhancing his sentence based on the amount of losses he caused, the district court should have taken into account his civil settlement with the bank he defrauded. None of these arguments is availing. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM Waldroop’s conviction and sentence. I The facts of this ease are rooted in an ill-fated relationship between a banker of questionable ethics and Waldroop, a businessman with the dangerous combination of bad financial luck and tastes that well exceeded his means. As things this combustible often do, the relationship between Mike Mayfield, the banker, and Waldroop ignited and caused hundreds of thousands of dollars of losses to Mayfields’ employer, First State Bank. When he met Waldroop, Mayfield was an Executive Vice President at First State Bank. Mayfield was also involved in an enormous fraudulent loan scheme with a local businessman named Larry Paul that would soon be discovered. However, at the time, he was a respected banker and a man on the rise in the bank. Waldroop, too, was successful, operating his family steel construction business. He was also well known in the literally fast-paced world of competitive midget-car racing. Mayfield recruited Waldroop to join the bank’s “Business Manager” program, which provided bridge financing for small businesses. This allowed small business owners to borrow against their receivables, allowing them to pay their expenses with credit and to repay the bank after they had billed their clients. Waldroop was admitted to the Business Manager program and began receiving credit from First State Bank. In addition to the Business Manager loans, Mayfield approved a number of loans to Waldroop and his businesses, including personal loans that allowed Wal-droop to buy real estate and luxury cars. In total," }, { "docid": "22943458", "title": "", "text": "or not. This failure requires a remand for resentencing. On remand, care should be taken to make sure that Mr. Leichtnam has had an opportunity to read and discuss his PSI report with counsel, including the suggestion in that report that he knew or reasonably should have foreseen that the conspiracy of which the jury found him to be a member involved “approximately four kilos” of cocaine. See United States v. Rone, 743 F.2d 1169 (7th Cir.1984). The fifth and last challenge Leichtnam brings is to his lawyer’s performance at trial. We reject his suggestions that his lawyer was ineffective. His lawyer’s performance left a lot to be desired, but because the jury’s verdict would in all likelihood have been the same, even if his lawyer had been better, Leichtnam was not prejudiced. To sum up, Leichtnam’s conviction on count one for participation in a drug conspiracy is affirmed, but the sentence on count one is vacated and the case is remanded for resentencing. Leichtnam’s conviction on the section 924(c) firearms charge in count two is reversed. . See Stirone, supra, 361 U.S. at 218, 80 S.Ct. at 273 (conviction reversed because evidence and instructions would have permitted conviction based on obstruction of shipments in steel not sand); Weissmati, supra, 899 F.2d 1111 (indictment specified that the RICO enterprise was the DeCavalcante family; conviction might have rested on proof of any \"enterprise”); Adams, supra, 778 F.2d 1117 (indictment specified using a false name; conviction might have been for using a false address); Salinas, supra, 654 F.2d at 322-25 (indictment specified aiding and abetting a bank president in the misapplication of bank funds; conviction might have been for aiding and abetting any bank “officer, director or employee\"); Carbon, supra, 616 F.2d 446 (indictment specified misapplying bank funds by causing a loan to be made for personal use; conviction might have been for misapplying bank funds by causing a loan to be made knowing that it was insufficiently secured and concealing that fact from the bank); Howard, supra, 526 F.2d 1388 (indictment specified inducing two named women to engage in prostitution; conviction" }, { "docid": "13431172", "title": "", "text": "BATCHELDER, Circuit Judge. Arguing insufficient evidence, the appellant James B. Spears appeals his jury conviction for conspiring to defraud a federally insured bank and to influence a loan officer, making false statements to influence a federally insured bank, bribing a bank loan officer, and aiding and abetting. Spears also challenges the district court’s application of the sentencing guidelines finding more than minimal planning and obstruction of justice to support enhancement of his sentence. ■ We affirm the conviction and the sentence enhancement for more than minimal planning. However, we vacate the sentence and remand for resentencing to permit the trial court to make findings consistent with this opinion with regard to enhancement for obstruction of justice. I. Following indictment by the grand jury, a jury convicted the appellant of two counts of knowingly making false statements to influence a federally insured (FDIC) bank in violation of 18 U.S.C. § 1014; bribery of a bank loan officer in violation of 18 U.S.C. § 215(a)(1); conspiracy to knowingly make false statements to a bank and to commit bank fraud and bribery of a bank officer in violation of 18 U.S.C. § 371; and aiding and abetting commission of offenses against the United States in violation of 18 U.S.C. § 2. Spears was acquitted of one count of bank fraud and eight counts of making false statements to an FDIC bank. Spears’s codefend-ant, Jack L. Cooper, was convicted of conspiracy, bribery, and seven counts of making false statements to influence an FDIC bank. Others involved in the charged offenses pled guilty and testified against Spears at his trial. Defendant Robert Sellers pled guilty to a single count of conspiracy. Loan officer Dan Patton pled guilty to corruptly accepting more than $100 from the other defendants with the intent of being influenced in connection with loan transactions. Following a hearing-on Spears’s objections to the presentence report, the trial court sentenced Spears to fifteen months on each count, to run concurrently and to be followed by three years of supervised release. In determining Spears’s sentence, Judge Forester included a two-point enhancement because the offenses involved" }, { "docid": "18864619", "title": "", "text": "the trial judge is-\" sued a comprehensive, twenty-seven page memorandum and order denying Brennan’s pending motion for acquittal on all counts charged, but granting McHugh’s pending motion for acquittal insofar as it related to the four counts for making false entries in bank records. After a two-day sentencing hearing, Brennan was sentenced to forty-one months in prison and McHugh was sentenced to a year and a day in prison. On appeal, McHugh and Brennan raise a host of challenges to the trial proceedings. Their complaints can be loosely divided into two categories: (1) there was insufficient evidence to support certain of their convictions, and (2) a number of decisions of the trial judge regarding the parameters of the trial, the admissibility of certain disputed evidence, and the jury instructions constituted reversible error. Brennan also advances miscellaneous arguments that he was victimized by constitutionally infirm legal representation at trial and that his sentence was unlawful. After carefully reviewing the voluminous record in the light of appellants’ contentions, we affirm. I. BACKGROUND Because attempting to recount the evidence in this case would be both unnecessary and inherently Sisyphean, we cut to the heart of the matter. McHugh was hired by CSB on May 24, 1987, as a senior vice-president and senior loan officer in charge of commercial -lending. At the time of McHugh’s hiring, CSB had a relatively small commercial lending department. Among other things, McHugh was charged with increasing the volume of commercial loans. To that end, CSB’s Board of Investment (“the Board”) provided McHugh with a personal lending-authority of up to $500,000 per borrower. Commercial loans in excess of $500,000 to any single borrower could not, however, be made without prior Board approval. On June 5, 1987, Brennan met with McHugh and requested a $70,000 unsecured loan from CSB. In connection with the requested loan, Brennan provided CSB with a signed Personal Financial Statement (“PFS”). The PFS contained a preamble indicating that the borrower would notify the bank of material changes in his/her financial condition. Evidence introduced at trial revealed that Brennan made statements on his PFS pertaining to his" }, { "docid": "19994457", "title": "", "text": "BAUER, Circuit Judge. Bryan J. Severson was convicted of 28 various counts of money laundering, bank fraud and bank embezzlement and was sentenced to 140 months’ imprisonment. Severson challenges both his conviction and sentence. With regard to his conviction, Severson argues that the government failed to prove his knowledge of illegality on ten counts and that a deliberate avoidance instruction was improperly given to the jury. As to his sentence, Severson argues that the loss was improperly calculated and that prior misdemeanors erroneously enhanced his criminal history. For the following reasons, we affirm Severson’s conviction and sentence. I. BACKGROUND Mark Hardyman was the President of the First National Bank of Blanchardville, Wisconsin (FNBB). FNBB was an FDIC insured financial institution, regulated by the Office of the Comptroller of Currency (OCC). In May 2003, the OCC conducted a regularly scheduled examination of the bank. The OCC examiners’ review revealed that there were violations of the bank’s legal lending limit. The bank examiners determined that the violations pertained to loans that were not being repaid but were being renewed, giving the impression that the loans were not in default. The examiners found that the violations totaled approximately $14,000,000. The OCC closed the bank’s doors. The FBI investigated FNBB’s closing to determine whether any criminal statutes had been violated. What this investigation uncovered was a series of rampant illegalities orchestrated by bank president Hardyman that, ultimately, had milked the bank dry. With the bank in financial trouble, Hardyman sought to mask the bank’s dilapidating condition and to present the illusion of a financially sound bank. For example, his activities included, but were not limited to, intentionally misstating information in internal and external reports, issuing loans without the required Board of Directors approval, renewing uncollectible, non-paid loans, and soliciting bank customers to issue fraudulent checks on essentially nonexistent accounts. Severson was a reoccurring figure in this fraud; we discuss only the facts relevant to his appeal. Severson was the owner of a small tow-truck company who originally financed his business through FNBB. As his business grew, Severson started up other small businesses through similar" }, { "docid": "1676230", "title": "", "text": "HARRISON L. WINTER, Chief Judge: Plaintiff Paul Anthony Cooper sued Baltimore County Police Officers Dyke, Markert and Morseberger for their alleged deliberate indifference to plaintiff’s serious medical needs, in violation of 42 U.S.C. § 1983, and for the pendant state claims of false arrest and negligent provision of medical care. The district court granted defendants’ motion for directed verdict on the negligence count, but submitted the other two causes of action to the jury. The jury awarded Cooper $75,300 on the § 1983 claim ($25,200 in compensatory damages and $50,100 in punitive damages), split equally among the three defendants. Nominal damages of $1 each were assessed against Dyke and Markert on the claim for false arrest (with which Morseberger was not charged). The district court awarded $36,240.01 to plaintiff’s attorneys for their costs, expenses and fees, pursuant to 42 U.S.C. § 1988. Defendants appeal both awards. Defendants contend that the district court erred in denying their motions for a directed verdict and judgment notwithstanding the verdict, that the jury instructions were flawed in several respects, that irregularities in the jury’s deliberation process necessitate reversal, and that the attorneys fee award was improperly calculated. We find no merit in these contentions, and thus affirm. I. Shortly before 3:00 a.m. on December 18, 1982, Paul Cooper, a sixteen year old boy, and several friends were involved in an altercation at Skateland Roller Rink in Owings Mills, Maryland. Cooper received a gunshot wound in the upper chest, under his left arm; his friend James Hill was shot in the hand. Cooper, Hill and others left the area in a van which was soon thereafter stopped by Officers Dyke and Markert. Although several occupants of the van quickly fled the scene, Cooper and Hill walked toward Officer Dyke and told him that they had each been shot. Because of Hill’s visible injury and Cooper’s complaints, Officer Dyke summoned an ambulance. The paramedics arrived within a few minutes and began to examine the boys. During this time, several busloads of people leaving Skateland were stopped by the roadblock set up by the police. The gathering" }, { "docid": "19994464", "title": "", "text": "certain loans. Severson also argues that the district court erred by including a “deliberate avoidance” or “ostrich” jury instruction, which allowed the jury to infer that Severson knew of Hardy-man’s fraud when he received the loans. Severson pursues another two-pronged attack on his sentence. He argues that the district court miscalculated the amount at issue when it refused to consider collateral later pledged as security on a loan and that the district court improperly calculated his criminal history level by including prior misdemeanor offenses. A. Conviction Severson challenges only 10 counts of his conviction, which all stem from three particular loans made to Severson. Sever-son argues that the government failed to present sufficient evidence that at the time he received the loans, he was aware that Hardyman had defrauded the bank’s directors by not seeking their approval. A defendant challenging the sufficiency of the evidence must show that “after viewing the evidence in the light most favorable to the prosecution,” no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Farris, 532 F.3d 615, 618 (7th Cir.2008) (internal citations omitted). Moreover, “we will overturn a conviction based on insufficient evidence only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” Id. In this inquiry, we do not weigh the evidence or second-guess the jury’s credibility determinations. United States v. Stevens, 453 F.3d 963, 965 (7th Cir.2006). The 10 appealed counts share a common element. Counts 9, 10, and 11, which charged bank fraud, required the government to prove that Severson knowingly aided and abetted Hardyman in his scheme with the intent to defraud. 18 U.S.C. § 1344(1) & (2). The second set of counts (counts 18, 19, and 21) charged Severson with bank embezzlement. 18 U.S.C. § 656. These three counts required proof that Severson knowingly aided and abetted Hardyman’s willful misapplication of bank money. The last counts (counts 22, 23, 26, and 27) charged Sever-son with illegal money laundering. 18 U.S.C. § 1957. These laundering counts required that" }, { "docid": "7825198", "title": "", "text": "LUMBARD, Circuit Judge: Domenick Tortora and Theresa Ribaudo appeal from judgments of conviction entered in the District Court for the Eastern District of New York (Johnson, J.). A jury found Tortora guilty of one count of conspiracy to commit bank fraud, one count of bank fraud, and four counts of making false statements on a loan application, and acquitted him on nine additional false statement counts. On October 29, 1993, Judge Johnson sentenced Tortora to five years’ imprisonment, with four and one-half years suspended. The jury found Ribaudo guilty of one count of bank fraud and one count of making false statements on a loan application, and acquitted her on three other counts. On June 11,1993, Ribaudo was sentenced to three years’ probation. On appeal, Tortora argues: (1) that in denying his suppression motion the district court accepted a magistrate judge’s recommendation without reviewing his findings; (2) that a witness’s in-court identification of Tor-tora resulted from an unduly suggestive pretrial identification procedure; and (3) that his trial should have been severed from his co-defendants’ trial because their defenses were antagonistic to his. Ribaudo argues that the district court improperly instructed the jury on a conscious avoidance theory. We affirm Ribaudo’s conviction; we remand Tortora’s case to the district court for a de novo review of the magistrate judge’s recommendation and for further proceedings and entry of judgment. Evidence at trial disclosed the following. In 1986 and 1987, Salvatore Feli conspired with Tortora, Ribaudo, and others to defraud the Independence Savings Bank (“Independence”) in Brooklyn. Feli encouraged his friends and family to file false loan applications for small or non-existent companies. Feli used his relationship with Hans Kratz, vice president and director of commercial loans at Independence, to have the loans approved. The borrowers then paid “finder’s fees” to Feli. Domenick Tortora Tortora, a driver for a car service owned by Feli, took out loans for $20,000 and $75,-000 for a fictitious construction company, and used the proceeds to pay personal debts. In March 1991, Tortora was indicted on multiple counts of conspiracy to commit bank fraud, bank fraud, and making" } ]

[ { "docid": "22700584", "title": "", "text": "the deductions allowed by § 403, the value of the net estate and the tax paid or payable thereon. By § 403 (a) (3) the net estate taxed is. ascertained by deducting, among other things, gifts to charity such as were made in this case. But as those gifts were subject to the life estate of the widow, of course their value was diminished, by the postponement that would last while the widow. lived. The question is whether the amount of the diminution, that is, the length of the postponement, is to be determined by the event as it turned out, of the widow’s death within six months, or by mortality tables showing the probabilities as they stood on the day when the testator died. The first impression is that it is absurd to resort to statistical probabilities when you know the fact. But this is due to inaccurate thinking. The estate so far as may be is settled as of the date of the testator’s death. See Hooper v. Bradford, 17.8 Mass. 95, 97. The tax is on the act of the testator not on the receipt of property by the legatees. Young Men’s Christian Association v. Davis, 264 U. S. 47, 50; Knowlton v. Moore, 178 U. S. 41, 49, and passim; New York Trust Co. v. Eisner, 256 U. S. 345, 348, 349; Edwards v. Slocum, 264 U. S. 61. Therefore the value of the thing to be taxed must be estimated as of the time when the act is done.. But the value of property at a given time depends upon the relative intensity of the social desire for it at that time, expressed in the money that it would bring in the market. See International Harvester Co. v. Kentucky, 234 U. S. 216, 222. Like all values, as the word is used by the law, it depends largely on more or less certain prophecies of the future; and the value is no less real at that time if later the prophecy turns out false than when it .comes out true. See Lewellyn v. Electric Reduction" } ]

[ { "docid": "13094115", "title": "", "text": "the testator’s death and based upon circumstances as they existed on that date. It seems quite clear, therefore, that only those events occurring after the testator’s death which have sufficiently high probative value in establishing or clarifying the circumstances as they existed at the time of testator’s death may properly be considered in making the factual determination as to the probability and extent of the exercise of a right to invade. The fact that lower courts have in several cases admitted evidence of “subsequent” events, would not appear to detract from the validity of the conclusions here reached. In none of these cases was an objection made to the admission of the evidence nor was the issue of admissibility raised on appeal. Certainly, a contrary rule cannot be predicated solely on these omissions. Moreover, in two of these cases, Merchants Nat. Bank of Boston v. Commissioner, supra, and De Castro’s Estate v. Commissioner, supra, the appellate courts determined that the standard was too indefinite and had no occasion to concern themselves with the factual inquiry. In the instant case, most of the evidence the admission of which the defendant resisted, was calculated to impress the jury with the meager likelihood of any future exercise of the right to invade subsequent to the trial. No effort appears to have been made to relate these events and circumstances to the potentiality, on the date of the testator’s death, of the exercise of the right to invade. Indeed, it is difficult to see how an itemization and valuation of property owned by the widow six years subsequent to her. husband’s, death, some of which, admittedly, was obtained after his death, or an arrangement between the widow and her son entered into almost a year subsequent to the testator’s death,. ever could be related back to the significant date. Similarly, an analysis of the soundness of the securities in. the estate on December 31,1952, without a showing that these were the same securities that were in the estate at the time of death would appear to have little relevance to the appropriate inquiry. The" }, { "docid": "10382448", "title": "", "text": "Petitioner's right later io have his share of the residue vested immediately upon testator’s death. At that time petitioner became enriched Jiy its worth which was directly related to and would increase or decline correspondingly with the value of the property. And, notwithstanding the postponement of transfer of the legal title to him, Congress unquestionably had power and reasonably might fico value at the time title passed from the decedent as the basis for determining gain or loss upon sale of the right or of the property before or after the decree of distribution. And we think that in substance it would not be inconsistent with the rules of law governing the descent and distribution of real and personal property of decedents to construe the words in question to mean the date of death. Undoubtedly the basis for the ascertainment of gain or loss on the sale of real estate by an heir or devisee is its value at the time of decedent’s death. That is “ the time of such acquisition.” The decree of distribution necessarily is later than, and has no definite relation to, the time when the real estate passes. And generally specific bequests are handed over to- the legatees soon after the death -of the testator and such property may be and often is sold by them prior to the entry of the decree for final distribution. In such cases gains or losses are to be calculated under these Acts on value at the time of death. No other basis is or reasonably could be suggested. There is nothing in either of the Acts or in their legislative history to indicate a purpose to establish two bases- — (1) value of real estate and specific bequests at time of death and (2) value of other property at date of decree. The rule that ambiguities in tax laws are to be resolved in favor of taxpayers has no application here because it is impossible to determine which basis would impose a greater burden. And neither construction is to be preferred on the ground that the other would" }, { "docid": "2946970", "title": "", "text": "Table II would be used for evaluating the charitable remainder. Table II shows a value factor of .841973 for a charitable remainder postponed for a term of five years (the life expectancy of Mrs. Adler as determined by the District Court) or a value of approximately 84 per cent of the trust estate. The use of Treasury Department actuarial tables for the purpose of determining the present value of future contingent interests in property has been for many years recognized and approved by the Supreme Court. See Simpson v. United States, 252 U.S. 547, 550, 40 S. Ct. 367, 368, 64 L.Ed. 709 (1920). In Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647 (1929), the Supreme Court approved the use of Treasury Department mortality tables in a situation analogous to the present one. There a testator created a trust, giving the residue of his estate to his wife for life with authority to use from the principal sufficient funds to maintain herself. Upon her death he provided for bequests in trust for certain charities. The widow died six months after decedent’s death. The Supreme Court held that the value of the charitable gifts was to be determined by mortality tables showing the probabilities as they stood on the day the testator died, despite the fact that the “uncertain probabilities” had been resolved by the “certain fact” of the widow’s death. The Court said, “Like all values, as the word is used by the law, it [the value of property] depends largely on more or less certain prophecies of the future, and the value is no less real at that time if later the prophecy turns out false than when it comes out true.” 279 U.S. at 155, 49 S.Ct. at 291, 292. The Treasury Regulations and the actuarial tables prescribed thereunder afford a reasonable norm and some degree of certainty in ascertaining the value of property and the consequent tax liabilities of beneficiaries thereof. We recognized the practicality of using the Treasury Regulations formula for computations in the recent case of Estate of" }, { "docid": "13508007", "title": "", "text": "be taxed must be estimated as of the time when the act is done. * * * Tempting as it is to correct uncertain probabilities by-the now certain fact, we are of opinion that it cannot be done, but that the value of the wife’s life interest must b.e estimated by the mortality tables.” The Supreme Court gave effect to the expressed intent of the testator as applied to the situation at the date of his death. It was the testator’s intention that the amount to be used for charities should be the corpus of the trust less a sum which would depend in part upon the life expectancy of the widow. Due to her early death the amount which in fact would be used for charities was larger than the amount which was determinable in accordance with the testator’s intention; but the testator’s expressed intention governed. It follows from the foregoing that the amount of deduction cannot exceed the amount which the testator intends to bequeath to be used for philanthropic purposes, the intention as to amount being governed by the situation at the time of the testator’s death. If in the instant case the testator’s will had allotted one-half of the bequest to non-charitable purposes and one-half to charities, the deduction allowable could not have been increased by the Lodge’s declaration of intention to use the entire bequest for charitable purposes. We approve the following statement of the meaning of the section in question found in the opinion of the Circuit Court of Appeals for the Eighth Circuit in Mississippi Valley Trust Co. v. Commissioner : “The meaning of this language is that the 'testator and he alone must provide for the charitable bequest. It means that the provision by the testator must be one that is definite in ascertainment and that is legally enforceable; it must possess the qualities of a definite command which will define the legal rights of all parties to the property intended to be affected. “As to certainty of statement by the testator, the requirement is not that every feature of the designation" }, { "docid": "13094116", "title": "", "text": "In the instant case, most of the evidence the admission of which the defendant resisted, was calculated to impress the jury with the meager likelihood of any future exercise of the right to invade subsequent to the trial. No effort appears to have been made to relate these events and circumstances to the potentiality, on the date of the testator’s death, of the exercise of the right to invade. Indeed, it is difficult to see how an itemization and valuation of property owned by the widow six years subsequent to her. husband’s, death, some of which, admittedly, was obtained after his death, or an arrangement between the widow and her son entered into almost a year subsequent to the testator’s death,. ever could be related back to the significant date. Similarly, an analysis of the soundness of the securities in. the estate on December 31,1952, without a showing that these were the same securities that were in the estate at the time of death would appear to have little relevance to the appropriate inquiry. The evidence of income received ánd expenditures made- by.,the widow and her state of health during the six years following her husband’s death suffers from the same infirmity. • It can hardly be doubted that the erroneous ' .admission of this evidence, which may well have effected a substitu-r tion in the minds of the jurors of actual events and circumstances occurring after the testator’s death for the jury’s estimate of the likelihood on the date of death of the exercise- of the right to invade principal, resulted in material prejudice to the defendant. Accordingly, the judgment of. the court below must be reversed and a new trial ordered. Reversed and- remanded. . In numerous cases involving powers to invade principal, it has-been held that the standard was so definite and fixed within the meaning of the Ithaca Trust case, that the deduction for the value of the charitable bequest has been allowed. See, e. g., Blodget v. Delaney, 1 Cir., 1953, 201 F.2d 589; Lincoln Rochester Trust Co. v. Commissioner, supra; Hartford-Connecticut Trust Co. v." }, { "docid": "4046317", "title": "", "text": "testator”, and the legal situation for tax purposes must be ad-measured as it “stood on the day when the testator died.” In order to entitle a charitable bequest to tax deductibility, “the testator and he alone must provide for the charitable bequest”; “it must possess the qualities of a definite command which will define the legal rights of all parties to the property intended to be affected”; and, where “there is no mandatory requirement that anything shall pass from the estate to any charitable institution”, the bequest lacks the legal certainty or reality necessary to entitle it to tax deductibility. This is the settled general rule. A bequest to charity, therefore, which, as in the situation here, is conditioned upon the wholly discretionary consent thereto of a third person after the testator’s death, lacks the legal certainty or reality necessary to entitle it to tax deductibility. Since the consent is outside the legal reach or mandate of the will, the tax situation cannot be affected by the fortuitous circumstance that such third person is likely in fact to give his consent to the bequest, or that he subsequently actually does so. The likelihood of any wholly discretionary consent being given is in law a mere speculation. The fortuitous circumstances in the particular situation or relationship which may influence the giving of such a wholly discretionary consent in an individual case are not, as we have pointed out above, data of such certain application and known operation as to afford the basis for a recognized legal result. And since the situation is to be tested by the testator’s acts and mandate, and by the legal certainties or realities existing on the date of his death, the fact that a wholly discretionary consent to a charitable bequest is subsequently given cannot create a tax deductibility by relation back. Appellant argues that Article 47 of Regulations 80 expressly recognizes the right of a conditional bequest to tax deductibility by relation back. The first paragraph of that regulation provides: “If the transfer is dependent upon the performance of some act or the happening of" }, { "docid": "23607951", "title": "", "text": "to statistical probabilities when you know the fact. But this is due to inaccurate thinking. The estate so far as may be is settled as of the date of the testator’s death. The tax is on the act of the testator not on the receipt of property by the legatees. Therefore the value of the thing to be taxed must be estimated as of the time when the act is done... . Tempting as it is to correct uncertain probabilities by the now certain fact, we are of [the] opinion that it cannot be done.. .. 279 U.S. at 155, 49 S.Ct. at 291 (citations omitted). In Ithaca Trust, the bequest was not for a liquidated sum; its value depended on the valuation of the use of property for the life of the testator’s widow. The fact that she died within six months of the date of the testator’s death was held not to be a proper consideration, and her life estate was determined according to mortality tables as of the date of the testator’s death. In contrast, in the present case the amount of the assessment was fixed as of the date of death. Therefore there is even less reason to look to post-death events. The Government denies the force of these arguments, and cites to Jacobs v. Commissioner, in which the Eighth Circuit construed a predecessor to section 2053(a) as requiring the consideration of post-death events when computing the value of claims against the estate. Jacobs, however, is without persuasive force for several reasons. First, Jacobs is distinguishable from the instant case. In Jacobs, the decedent’s will gave his widow a power to elect between two alternatives. Her claim, therefore, was not certain and enforceable; it was contingent. Second, we find the Jacobs court’s analysis of Congressional intent unconvincing. The Eighth Circuit placed heavy reliance on the fact that “claims against the estate” appeared in the same paragraph as funeral and estate administration expenses. The court reasoned that, because funeral and administration expenses necessarily require consideration of post-death events, Congress must also have intended that post-death events be" }, { "docid": "4046316", "title": "", "text": "after payment of all the bequests in the will (including the two charitable bequests here involved), taxes and expenses of administration. It indicates also that at the time of her husband’s death Mrs. Kellogg was possessed of property in her own right exceeding $450,000 in value. It appears further that, on the basis of recognized mortality tables, Mrs. Kellogg had a life expectancy ■ of only 5.88 years after Mr. Kellogg’s death. These circumstances and the close relationship between Mr. and Mrs. Kellogg may, as a practical matter, have created a strong likelihood' or probability that Mrs. Kellogg would give her consent to the payment of the two charitable bequests, but they do not in law constitute data of such certain application and known operation as to give the bequests a legal reality in the will itself. The deductibility of a charitable bequest for estate tax purposes depends upon the legal completeness or legal certainty of what the testator has himself done or mandated in the will. “The tax is on the act of the testator”, and the legal situation for tax purposes must be ad-measured as it “stood on the day when the testator died.” In order to entitle a charitable bequest to tax deductibility, “the testator and he alone must provide for the charitable bequest”; “it must possess the qualities of a definite command which will define the legal rights of all parties to the property intended to be affected”; and, where “there is no mandatory requirement that anything shall pass from the estate to any charitable institution”, the bequest lacks the legal certainty or reality necessary to entitle it to tax deductibility. This is the settled general rule. A bequest to charity, therefore, which, as in the situation here, is conditioned upon the wholly discretionary consent thereto of a third person after the testator’s death, lacks the legal certainty or reality necessary to entitle it to tax deductibility. Since the consent is outside the legal reach or mandate of the will, the tax situation cannot be affected by the fortuitous circumstance that such third person is likely" }, { "docid": "11316819", "title": "", "text": "be computed on the basis of what the charities actually received, not on the basis of what is provided in the will of the decedent.” That is what the statute plainly intends. Section 303(a) (3) allows deduction from a gross estate for “The amount of all bequests, legacies, devises, or transfers, * * * to a trustee * * *, but only if such contributions or gifts are to be used by such trustee * * * exclusively for religious, charitable, scientific, literary, or educational purposes * * (Emphasis supplied.) The Lord Provost was a trustee for the charitable use contemplated by the testator. The amount deductible could not, therefore, exceed the sum which the Lord Provost used exclusively for charitable purposes. Obviously, he could not so use what he did not actually receive. And as a result of the compromise agreement, he received, for the charitable uses contemplated by the testator, only three-fourths of the residuary estate, while the remaining one-fourth went to a use not charitable. By way of answer, petitioner asserts that “Congress intended that the tax should be determined as of the date of the testator’s death and upon the conditions and circumstances existing at that time.” Undeniably, the estate subject to tax is the property which passes from a decedent at death. The estate tax is a tax on the transmission and not on the succession. Knowlton v. Moore, 178 U.S. 41, 48, 49, 20 S.Ct. 747, 44 L.Ed. 969. The decedent’s gross estate is therefore to be determined as of the date of his death. Ithaca Trust Co. v. United States, 279 U.S. 151, 155, 49 S.Ct. 291, 73 L.Ed. 647. But, while a decedent’s gross estate is fixed as of the date of his death, deductions claimed in determining the net estate subject to tax may not be ascertainable or even accrue until the hapoening of events subsequent to death. Such is the case with respect to administration expenses, which are of course an allowable deduction. It is also true with respect to deductions for conditional charitable bequests which cannot be measured until" }, { "docid": "9679386", "title": "", "text": "S.Ct. 506, 65 L.Ed. 963, 16 A.L.R. 660; Edwards v. Slocum, 264 U.S. 61, 44 S.Ct. 293, 68 L.Ed. 564. Therefore the value of the thing to be taxed must be estimated as of the time when the act is done.” The testator made the bequests. Although the wife’s death enhanced the value of the gift to charity, it was not considered by the court. The value was estimated by the “mortality, tables showing the probabilities as they stood on the day when the testator died”. The cases of Humphrey v. Millard, 2 Cir., 79 F.2d 107; Dimock v. Corwin, 2 Cir., 99 F.2d 799, and Commissioner of Internal Revenue v. First National Bank of Atlanta et al., 5 Cir., 102 F.2d 129, are relied upon by the petitioner as showing that supervening events were taken into consideration by the courts in allowing the deductions under the federal estate tax. But in these cases the waivers permitted the testator’s gifts to charity to be completed. In each case the gift to charity was the exact gift which the testator sought to make. In Humphrey v. Millard, supra, the testator in his will bequeathed more than one-half of his estate to charity. Under a New York state statute provision was made that the bequests to charity under certain conditions of more than one-half of the decedent’s estate should be valid only to the extent of one-half and no more. The widow, who was the only person to be benefited by the statute, waived her rights thereunder. The New York courts construed this statute to mean that “only persons directly to be benefited may take advantage of it, and that devises and bequests exceeding one-half of the testator’s estate are not void, but voidable.” The Circuit Court of Appeals allowed the exact gift which the testator set forth in his will as a deduction for the purpose of computing the federal estate tax. The waiver by the widow removed all obstacles to the execution of the testator’s gift to charity. In Dimock v. Corwin, supra, and Commissioner of Internal Revenue v. First" }, { "docid": "972024", "title": "", "text": "example, “as determined by § 20.2031-7,” or an expression of like import. The regulations thus leave room for departure from strict application of the tables. Departure from mortality tables because of unusual circumstances has been consistently allowed in cases involving the determination of the size of charitable remainders for purposes of the charitable deduction from the estate tax. The seminal case in this area, Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647 (1929), is relied on by taxpayers here because it was one in which actuarial tables were employed. The estate in question included a trust with a life estate to the testator’s wife, coupled with a power to invade the corpus, and remainder to charity. The testator’s widow died six months after him, and the contention was advanced that the value of the charitable remainder, deductible for estate tax purposes, should be what it was at the widow’s death rather than what would have been predictable by the use of mortality tables at the time of the testator’s death. The Court, per Justice Holmes, rejected this argument, and concluded that the charitable remainder must be valued as of the date of the testator’s death. The Court stated that value “as the word is used by the law * * * depends largely on more or less certain prophecies of the future, and the value is no less real at that time if later the prophecy turns out false than when it comes out true.” 279 U.S. at 155, 49 S.Ct. at 292. This ease is quite unlike to one in which the life tenant’s death was certain to be imminent at the time of the testator’s death. The next Supreme Court case in this area was United States v. Provident Trust Co., 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793 (1934). There, the testator had established a trust in which his daughter had a life estate, with remainder to her lawful issue and contingent remainders, should she die without issue, to designated charitable institutions. At the date of the testator’s death," }, { "docid": "13508005", "title": "", "text": "intending to favor gifts for altruistic objects, not by specific exemption of those gifts but by encouraging testators to make such gifts. Congress was in reality dealing with the testator before his death. It said to him: ‘If you will make such gifts, we will reduce your death duties and measure them, not by your whole estate, but by that amount, less what you give.’” In Ithaca Trust Co. v. United States the Supreme Court emphasized the 'conclusiveness of the expressed intent of the testator in'the determination of the amount of deduction for gifts to charity. In that case the residue of the estate of the testator was given in trust for the use of his wife for life, the trustee having authority to use from the principal any sum “that may be necessary to suitably maintain her in as much comfort as she now enjoys.” Upon her death the trust fund became bequests in trust for admitted charities. She died six months after the death of her husband. The value of the gifts which would eventually go to charity obviously depended upon the extent of the diminution of the corpus during the lifetime of the widow. Consequently, to determine the amount of deduction allowable for gifts to charity it was necessary to estimate the probable diminution of the corpus, and if the death of the wife had' not occurred until after the payment of the estate tax, clearly the amount of the diminution would have been estimated by the use of mortality tables showing “the probabilities as they stood on the day when the testator died.” The court discussed and disposed of this question as follows: “The first impression is that it is absurd to resort to statistical probabilities when you know the fact. But this is due to inaccurate thinking. The estate so far as may be is settled as of the date of the testator’s death. * * * The tax is on the act of the testator not on the receipt of property by the legatees. * * * Therefore the value of the thing to" }, { "docid": "23607950", "title": "", "text": "at the time of death.... Only claims enforceable against the decedent’s estate may be deducted. (emphasis added). Significantly, the regulation designates “the time of death” as the critical reference point. In addition, it speaks of “enforceable” rather than “enforced” claims. These factors further suggest that post-death events are irrelevant to the computation of certain and enforceable claims against the estate. Accord, Winer, 153 F.Supp. at 943. See also Jacobs v. Commissioner, 34 F.2d 233, 236-37 (8th Cir.) (McDermott, J., dissenting), cert, denied, 280 U.S! 603, 50 S.Ct. 85, 74 L.Ed. 647 (1929). Finally, our construction is consistent with the teaching of Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647 (1929). In Ithaca Trust the Supreme Court considered whether post-death facts should be considered in measuring the value of a charitable gift for the purpose of deducting that value from the gross estate when computing the taxable estate. In holding that post-death events should be ignored, the Court reasoned: The first impression is that it is absurd to resort to statistical probabilities when you know the fact. But this is due to inaccurate thinking. The estate so far as may be is settled as of the date of the testator’s death. The tax is on the act of the testator not on the receipt of property by the legatees. Therefore the value of the thing to be taxed must be estimated as of the time when the act is done... . Tempting as it is to correct uncertain probabilities by the now certain fact, we are of [the] opinion that it cannot be done.. .. 279 U.S. at 155, 49 S.Ct. at 291 (citations omitted). In Ithaca Trust, the bequest was not for a liquidated sum; its value depended on the valuation of the use of property for the life of the testator’s widow. The fact that she died within six months of the date of the testator’s death was held not to be a proper consideration, and her life estate was determined according to mortality tables as of the date of the testator’s" }, { "docid": "2946971", "title": "", "text": "bequests in trust for certain charities. The widow died six months after decedent’s death. The Supreme Court held that the value of the charitable gifts was to be determined by mortality tables showing the probabilities as they stood on the day the testator died, despite the fact that the “uncertain probabilities” had been resolved by the “certain fact” of the widow’s death. The Court said, “Like all values, as the word is used by the law, it [the value of property] depends largely on more or less certain prophecies of the future, and the value is no less real at that time if later the prophecy turns out false than when it comes out true.” 279 U.S. at 155, 49 S.Ct. at 291, 292. The Treasury Regulations and the actuarial tables prescribed thereunder afford a reasonable norm and some degree of certainty in ascertaining the value of property and the consequent tax liabilities of beneficiaries thereof. We recognized the practicality of using the Treasury Regulations formula for computations in the recent case of Estate of Wien, et al. v. Commissioner of Internal Revenue, 5 Cir., 1971, 441 F.2d 32, where we observed that the use of a similar regulation [Section 20.2031-8] “has relieved us of the burden of calculating” such imponderables. The First Circuit likewise commented on the feasibility of using Treasury actuarial tables in McMurtry v. Commissioner of Internal Revenue, 1953, 203 F.2d 659, 667, in which it noted that “[T]ables which have enjoyed such widespread and long-standing use should not be rejected as wholly unreasonable, even though they may perhaps be susceptible of minor improvements in particular respects. Such discrepancies as may exist will no doubt average out in the long run; and while this may sometimes prove to be unfortunate for individual taxpayers, the discrepancies may have to be suffered in the interest of a simplified overall administration of the tax laws.” We agree with Taxpayer’s contention that where there is sufficient evidence regarding the actual life expectancy of a life tenant, the presumptive correctness of the Treasury tables will be overcome. Indeed the Regula tions anticipate" }, { "docid": "10400313", "title": "", "text": "the date of decedent’s death, as well as at the time the will was executed, was a hopeless invalid, almost totally paralyzed and without reason, memory, or personal desires of any kind. He was rapidly deteriorating at the date of decedent’s death and, in the words of his physician, was “just an individual protoplasm.” The evidence is that he was then receiving the maximum of care that could be given him and that there was no reasonable likelihood that there would ever be any increase in the cost of his care and maintenance. As the Tennessee courts had pointed out in construing the will, the trustee was under a duty to preserve the residuary estate for the benefit of the charities named in the will. The remaining question is whether in valuing the charitable bequests the life estate of the decedent’s husband is to be determined with reference to established mortality tables, upon which the respondent relies, or with reference to the actual physical condition of the decedent’s husband at the time of her death. At the date of decedent’s death her husband was seventy-three years of age. The petitioner contends that, in view of the husband’s physical condition, his reasonable life expectancy was not more than one year from the date of decedent’s death. Such was the testimony of the husband’s attending physician and the opinion testimony of other well qualified medical authorities. The United States Supreme Court has said that in making a deduction for a remainder interest bequeathed to charity, such as is here under consideration, “the value thereof must be determined from data available at the time of the death of decedent.” United States v. Provident Trust Co., 291 U. S. 272. We held in the Estate of John Halliday Denbigh,, 7 T. C. 387, that the use of established mortality tables, which are evidentiary only, must give way to the proven facts which show a less life expectancy. There, the life beneficiary was suffering from cancer in an “inoperable, incurable” form and was doomed to die within a year or two, whereas, according to the" }, { "docid": "9679385", "title": "", "text": "at page 291 of 49 S.Ct. 73 L.Ed. 647: “The question is whether the amount of the diminution, that is, the length of the postponement, is to be determined by the event as it turned out, of the widow’s death within six months, or by mortality tables showing the probabilities as they stood on the day when the testator died. The first impression is that it is absurd to resort to statistical probabilities when you know the fact. But this is due to inaccurate thinking. The estate so far as may be is settled _ as of the date of the testator’s death. See Hooper v. Bradford, 178 Mass. 95, 97, 59 N.E. 678. The tax is on the act of the testator not on the receipt of property by the legatees. Young Men’s Christian Association v. Davis, 264 U.S. 47, 50, 44 S.Ct. 291, 68 L.Ed. 558; Knowlton v. Moore, 178 U.S. 41, 49, 20 S.Ct. 747, 44 L.Ed. 969; and passim; New York Trust Co. v. Eisner, 256 U.S. 345, 348, 349, 41 S.Ct. 506, 65 L.Ed. 963, 16 A.L.R. 660; Edwards v. Slocum, 264 U.S. 61, 44 S.Ct. 293, 68 L.Ed. 564. Therefore the value of the thing to be taxed must be estimated as of the time when the act is done.” The testator made the bequests. Although the wife’s death enhanced the value of the gift to charity, it was not considered by the court. The value was estimated by the “mortality, tables showing the probabilities as they stood on the day when the testator died”. The cases of Humphrey v. Millard, 2 Cir., 79 F.2d 107; Dimock v. Corwin, 2 Cir., 99 F.2d 799, and Commissioner of Internal Revenue v. First National Bank of Atlanta et al., 5 Cir., 102 F.2d 129, are relied upon by the petitioner as showing that supervening events were taken into consideration by the courts in allowing the deductions under the federal estate tax. But in these cases the waivers permitted the testator’s gifts to charity to be completed. In each case the gift to charity was the exact" }, { "docid": "10400314", "title": "", "text": "At the date of decedent’s death her husband was seventy-three years of age. The petitioner contends that, in view of the husband’s physical condition, his reasonable life expectancy was not more than one year from the date of decedent’s death. Such was the testimony of the husband’s attending physician and the opinion testimony of other well qualified medical authorities. The United States Supreme Court has said that in making a deduction for a remainder interest bequeathed to charity, such as is here under consideration, “the value thereof must be determined from data available at the time of the death of decedent.” United States v. Provident Trust Co., 291 U. S. 272. We held in the Estate of John Halliday Denbigh,, 7 T. C. 387, that the use of established mortality tables, which are evidentiary only, must give way to the proven facts which show a less life expectancy. There, the life beneficiary was suffering from cancer in an “inoperable, incurable” form and was doomed to die within a year or two, whereas, according to the mortality table, she had a life expectancy of about sixteen years. Those are much like the facts in the instant case, and we think the same principle governs. The evidence is that at the date of decedent’s death the life expectancy of her husband was not more than one year. Actually, he lived only two months. We therefore sustain the petitioner’s contention that the valuation of the life estate, which must he deducted from the charitable bequests, should be based upon a life expectancy of not more than one year. Decision will be entered imder Bule 50." }, { "docid": "13094112", "title": "", "text": "* * * shall not be sufficient to amply provide for her needs,’ ” might fairly be interpreted as indicating that the testator had something more in mind than merely ensuring the preservation of his widow’s customary standard of living, especially as the will contained the further clause, “I especially direct that no one shall have the right to call in question the propriety or the amount so applied for my wife.” In view of the foregoing, we are constrained to conclude that the will, construed as a matter of law, discloses an intention to provide for a continuance of the mode of life and standard of living of the life beneficiary and that, consequently, there is a sufficiently definite and fixed standard to permit ascertainment with reasonable certainty of the value, as of the date of death of the decedent, of the bequest to the charitable remain-dermen. Having reached this determination, it becomes necessary to consider the serious and important question relating to the admission at the trial, over the Collector’s objection, of evidence of events and circumstances occurring after the death of the testator. Those cases which have held the standard of invasion to be sufficiently definite and fixed, appear to require that the probability of the exercise of the right to invade and the extent of the potential invasion, if any, be assessed as of the date of the testator’s death and that this assessment be based upon circumstances as they existed on that date. In Ithaca Trust Co. v. United States, supra, the Supreme Court held that, in determining the value of a life estate prior to a charitable remainder, the life tenant’s life expectancy, actuarially determined as of the date of the testator’s death, controlled, and the fact that the life tenant died prematurely could not be substituted for the actuarial computation. We think the rationale of that decision also renders inadmissible the post-death evidence which was received here. Similarly, in Wells Fargo Bank & Union Trust Co. v. Commissioner, 9 Cir., 1944, 145 F.2d 132, the Court of Appeals reversed a Tax Court ruling" }, { "docid": "13508006", "title": "", "text": "would eventually go to charity obviously depended upon the extent of the diminution of the corpus during the lifetime of the widow. Consequently, to determine the amount of deduction allowable for gifts to charity it was necessary to estimate the probable diminution of the corpus, and if the death of the wife had' not occurred until after the payment of the estate tax, clearly the amount of the diminution would have been estimated by the use of mortality tables showing “the probabilities as they stood on the day when the testator died.” The court discussed and disposed of this question as follows: “The first impression is that it is absurd to resort to statistical probabilities when you know the fact. But this is due to inaccurate thinking. The estate so far as may be is settled as of the date of the testator’s death. * * * The tax is on the act of the testator not on the receipt of property by the legatees. * * * Therefore the value of the thing to be taxed must be estimated as of the time when the act is done. * * * Tempting as it is to correct uncertain probabilities by-the now certain fact, we are of opinion that it cannot be done, but that the value of the wife’s life interest must b.e estimated by the mortality tables.” The Supreme Court gave effect to the expressed intent of the testator as applied to the situation at the date of his death. It was the testator’s intention that the amount to be used for charities should be the corpus of the trust less a sum which would depend in part upon the life expectancy of the widow. Due to her early death the amount which in fact would be used for charities was larger than the amount which was determinable in accordance with the testator’s intention; but the testator’s expressed intention governed. It follows from the foregoing that the amount of deduction cannot exceed the amount which the testator intends to bequeath to be used for philanthropic purposes, the intention" }, { "docid": "10382449", "title": "", "text": "distribution necessarily is later than, and has no definite relation to, the time when the real estate passes. And generally specific bequests are handed over to- the legatees soon after the death -of the testator and such property may be and often is sold by them prior to the entry of the decree for final distribution. In such cases gains or losses are to be calculated under these Acts on value at the time of death. No other basis is or reasonably could be suggested. There is nothing in either of the Acts or in their legislative history to indicate a purpose to establish two bases- — (1) value of real estate and specific bequests at time of death and (2) value of other property at date of decree. The rule that ambiguities in tax laws are to be resolved in favor of taxpayers has no application here because it is impossible to determine which basis would impose a greater burden. And neither construction is to be preferred on the ground that the other would raise serious question as to constitutional validity. The generality of the words used in both Acts indicates intention that the value at the time of death of the decedent was to be taken as the baste in all cases. (Italics supplied.) The above language of the Supreme Court might well be paraphrased and applied with equal finality to the issue here presented, particularly that portion thereof which states that petitioner’s right to have his share of the residue at a later date vested immediately upon testator’s death, that at that time he became enriched by its worth, which was directly related to and would increase or decline correspondingly with the value of the property, that notwithstanding the postponement of transfer of the legal title to him, Congress unquestionably had power and reasonably might fix value at the time title passed from the decedent as the basis for determining gain or loss upon sale of the right or of the property before or after the decree of distribution, that there is nothing in the Revenue Act" } ]

[ { "docid": "2324842", "title": "", "text": "plaintiffs and these defendants, the court exercised supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). Now that the claims over which the court had original jurisdiction are dismissed, the court declines to exercise supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367(c). These claims may more properly be adjudicated by a state court. See Pitts v. Turner and Boisseau, Chartered, 850 F.2d 650, 653 (10th Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989). Plaintiffs’ claims against these defendants are therefore dismissed without prejudice. IT IS, THEREFORE, BY THE COURT ORDERED that the Motion for Summary Judgment filed by defendant Central Kansas Medical Center (Doc. 232) is granted. IT IS FURTHER ORDERED that plaintiffs’ state law claims against defendants William T. King, M.D., Jay S. Sehukman, M.D., and Joseph Gateno, M.D., are dismissed without prejudice. The case is dismissed. Copies of this order shall be mailed to counsel of record for the parties. IT IS SO ORDERED. . Section 1395dd was enacted as part of the Consolidated Omnibus Budget Recommendation Act (COBRA) of 1986, and is sometimes referred to as a COBRA provision. Pub.L. No. 99-272, § 9121, 100 Stat. 82, 164-67 (1986). . In its reply brief, defendant has objected to the affidavits executed by plaintiffs’ expert witnesses both as to their content and that they set forth opinions not fairly disclosed during discovery. Since the court is granting the summary judgment motion, these issues need not be addressed. . The current version of that section reads, \"the individual (or a legally responsible person acting on the individual’s behalf) after being informed of the hospital’s obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility.” This section was amended on December 19, 1989, by P.L. 101-239, and the amendments took effect on July 1, 1990. These amendments are not applicable to the case at bar. See Stevison v. Enid Health Systems, Inc., 920 F.2d 710, 713 n. 3 (10th Cir.1990); Brooker v. Desert Hosp. Corp., 947 F.2d 412, 415 n." } ]

[ { "docid": "10697982", "title": "", "text": "plaintiff] would ordinarily be expected to try them all in one judicial proceeding.’ ” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Yet supplemental jurisdiction over state law claims is a “doctrine of discretion, not of plaintiffs right.” Gibbs, 383 U.S. at 726, 86 S.Ct. 1130. Consequently, “a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. 614. When the federal claims are dismissed before trial and only state law claims remain, the balance of factors to be considered under the supplemental jurisdiction doctrine weigh heavily in favor of declining jurisdiction; therefore, the federal court should usually decline the exercise of jurisdiction over the remaining claims and send them to state court. See id. at n. 7, 108 S.Ct. 614. According to the Fifth Circuit, “[o]ur general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir.1992) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.1989)). Here, the federal claims against all of the defendants have been dismissed and only state law claims remain. Because the federal claims are being dismissed before trial, the factors of judicial economy, convenience, fairness, and comity suggest that this court ought to decline jurisdiction over the remaining state law claims against these defendants. See 28 U.S.C. § 1367(c)(3). Those claims are therefore dismissed without prejudice. III. CONCLUSION Because Rahr had inquiry notice of his section 10(b) and section 18 claims against the defendants more than a year before he filed his suit and because the fifing of Krogman v. Grant Thornton did not toll the statute of limitations with respect to his claims, all" }, { "docid": "2556310", "title": "", "text": "economy, convenience, fairness to litigants, and comity. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Where all federal claims have been dismissed before trial, and especially before discovery on the state claims, these factors shall “point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Shchegol v. Rabinovich, No. 98 Civ. 5616, 1999 WL 398025, at *8 (S.D.N.Y.) (declining to exercise supplemental jurisdiction over state law claims in advance of discovery where plaintiffs could “continue to pursue this action in the state court”); Sanders v. Gold Key Lease, Inc., 906 F.Supp. 197, 202 (S.D.N.Y.1995) (declining to exercise supplemental jurisdiction over state law claims where federal claims were dismissed at a preliminary stage). While the principle as expressed in Co-hill is not “a mandatory rule to be applied inflexibly in all cases,” Cohill, supra, 484 U.S. at 350 n. 7, 108 S.Ct. 614 it is applicable in this case. First, this Court has little interest in resolving a California contract dispute between California parties governed under California law. Contrary to plaintiffs suggestion, this Court’s familiarity with the state law issues is incidental at best. (Plaintiffs Memorandum of Law in Opposition to Defendants’ Cross-Motion for Summary Judgment and in Further Support of Plaintiffs Motion for Summary Judgment (“Pl.’s Opp.”) at 6.) The fact that there are not, as plaintiff claims, any “novel issues of state law” favoring state court adjudication is immaterial in this case, even if it were true. (Id.) Moreover, because the California courts are more familiar with the issues in question, which, according to plaintiff are “straightforward and less complex” than the federal claims, (Pl.’s Rep. Bank at 5), there is unlikely to be a disproportionate expenditure of judicial resources in state court. Judicial economy therefore supports dismissal. Second, the convenience of the parties militates in favor of dismissal, because the parties, as well as the lawyers with experience on matters of California contract law, are located in California. Moreover," }, { "docid": "6076989", "title": "", "text": "coupled with the Court’s discretion to exercise supplemental jurisdiction under § 1367(e), this Court finds that the state law claims remaining in this action are best resolved by the Georgia courts. This is especially true here where the Court is dismissing Plaintiffs’ federal law claim prior to trial. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (dismissal of state law claims strongly encouraged when federal law claims are dismissed prior to trial); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988) (“When federal law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”); Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir.1994) (remanding ease to district court to dismiss plaintiffs state law claims where court had granted summary judgment on plaintiffs federal law claims). The Court finds that judicial economy, fairness, convenience, and comity dictate having these state law claims decided by the state courts. IV. CONCLUSION For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss [3-1] Plaintiffs’ claim under the BHCA for want of subject matter jurisdiction. The Court DISMISSES Plaintiffs state law claims WITHOUT PREJUDICE. The Clerk is directed to enter final judgment in favor of Defendant on Plaintiffs’ claim under federal law. The Clerk is directed to dismiss Plaintiffs’ claims under state law. It is SO ORDERED, this 28th day of November, 1995. /s/ Frank M. Hull Frank M. Hull United States District Judge . Subparagraph (E) of § 1972(2) states as follows: (E) For purposes of this paragraph, the term “extension of credit\" shall have the meaning prescribed by the Board pursuant to section 375b of this title and the term “executive officer” shall have the same meaning given it under section 375a of this title. 12 U.S.C. § 1972(2)(E) (1994). . House Report 95-1383 notes that H.R. 13471, the precursor to FIRIRCA, gave federal banking agencies four major tools to assist" }, { "docid": "11520592", "title": "", "text": "jurisdiction, the court must determine whether to exercise its supplemental jurisdiction over plaintiffs remaining state law claim. Whether to exercise supplemental jurisdiction is within the district court’s sound discretion. See Brinkman v. State Dept. of Corrections, 863 F.Supp. 1479, 1488 (D.Kan.1994). The district court is expressly authorized to decline to exercise supplemental jurisdiction over a state law claim if the court has dismissed all claims over which it had original jurisdiction. 28 U.S.C. § 1367(c)(3). Discretion to try state law claims in the absence of any federal claims should only be exercised in those cases in which, given the nature and extent of pretrial proceedings, judicial economy, convenience, and fairness would be served by retaining jurisdiction. Thatcher Enterprises v. Cache Corp., 902 F.2d 1472, 1478 (10th Cir.1990). Generally, when federal claims are eliminated before trial, the balance of factors to be considered will point towards declining to exercise jurisdiction over the remaining state law claims. Camegie-Mellon Univ. v. Co-hill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). “Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Thatcher Enterprises, 902 F.2d at 1478. The court finds no compelling reason to exercise its supplemental jurisdiction and determines in the interest of comity and federalism that plaintiffs remaining state law claim be heard in state court. See Boone v. Carlsbad Bancorp., Inc., 972 F.2d 1545, 1559 (10th Cir.1992) (district court did not abuse its discretion in declining to exercise supplemental jurisdiction over pendant state law claims where it dismissed federal securities and RICO claims before trial); Urban v. King, 834 F.Supp. 1328, 1334 (D.Kan.1993) (court granted summary judgment on plaintiffs federal claims and declined to exercise jurisdiction over state law claims); Dow v. Terramara, Inc., 835 F.Supp. 1299 (D.Kan. 1993) (same); Taliaferro v. Voth, 774 F.Supp. 1326, 1333 (D.Kan.1991) (same); see also Bonger v. American Water Works, 789 F.Supp. 1102, 1107-08 (D.Colo.1992) (court declined to exercise jurisdiction over state statutory claim where it granted summary judgment in favor of defendant on plaintiffs Title VII claim). Plaintiffs state" }, { "docid": "23362392", "title": "", "text": "from the outset, intervention is not required. See Lierboe, 350 F.3d at 1023; see also Lidie v. California, 478 F.2d 552, 555 (9th Cir.1973) (“[W]here the original plaintiffs were never qualified to represent the class, a motion to intervene represents a back-door attempt to begin the action anew, and need not be granted.”). VI Finally, the Smiths argue that the district court erred in declining to exercise supplemental jurisdiction over their state-law claims. A district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), superseded on other grounds by statute as recognized in Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557 (10th Cir.2000). Because we conclude that the district court properly dismissed all of the federal-law claims and the balance of factors does not tip in favor of retaining the state-law claims, we cannot say that the district court abused its discretion in dismissing the state-law claims without prejudice. VII For the foregoing reasons, the judgment of the district court is AFFIRMED. . MWI has since changed its name to Vertrue, Inc. . Sanford also named West as a defendant, but the district court dismissed all of her claims against West, and we affirmed the dismissal in a prior appeal. See Sanford v. MemberWorks, Inc., 483 F.3d 956, 965 (9th Cir.2007). The claims against West are not at issue in this appeal. . Sanford contends that we need not consider whether she continues to have standing because the Smiths have standing, and \"[i]n a class action, standing is satisfied if at least one named plaintiff meets the requirements” of Article III. Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1215 n. 1" }, { "docid": "20325594", "title": "", "text": "private parties.” McCarthy, 759 F.Supp.2d at 277 (citations omitted); see also Dunn, 137 Fed.Appx. at 389 (merely cooperating in a police investigation does not constitute state action). In addition, “[e]ommunications between a private and a state actor, without facts supporting a concerted effort or plan between the parties, are insufficient to make the private party a state actor.” Fisk v. Letterman, 401 F.Supp.2d 362, 377 (S.D.N.Y. 2005). Plaintiffs general, nonspecific allegations regarding a relationship between the defendants cannot support a finding that Cablevision was a state actor for purposes of a § 1983 conspiracy claim, and thus any such claim must fail. III. State Law claims Having dismissed plaintiffs federal claims, I must decide whether it is appropriate to exercise pendent jurisdiction over her remaining state law claims. “Federal courts, absent exceptional circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case can be disposed of by summary judgment.” Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir.1986). The Second Circuit has further instructed that “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state law claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir.2003) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). As none of these factors favor retaining jurisdiction, I decline to exercise pendent jurisdiction over plaintiffs state law claims. Accordingly, the remaining state law claims against the County defendants (negligence) and the Cablevision defendants (negligent hiring, supervision, and retention) are dismissed without prejudice. CONCLUSION The court finds that the defendants are entitled to judgment as a matter of law, dismissing all federal claims and the state law false arrest and malicious prosecution claims. As to the remaining state claims, the court declines to exercise supplemental jurisdiction. Accordingly, the defendants’ motions for summary judgment are granted, and the Clerk of the Court is directed to close the case." }, { "docid": "11520593", "title": "", "text": "and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Thatcher Enterprises, 902 F.2d at 1478. The court finds no compelling reason to exercise its supplemental jurisdiction and determines in the interest of comity and federalism that plaintiffs remaining state law claim be heard in state court. See Boone v. Carlsbad Bancorp., Inc., 972 F.2d 1545, 1559 (10th Cir.1992) (district court did not abuse its discretion in declining to exercise supplemental jurisdiction over pendant state law claims where it dismissed federal securities and RICO claims before trial); Urban v. King, 834 F.Supp. 1328, 1334 (D.Kan.1993) (court granted summary judgment on plaintiffs federal claims and declined to exercise jurisdiction over state law claims); Dow v. Terramara, Inc., 835 F.Supp. 1299 (D.Kan. 1993) (same); Taliaferro v. Voth, 774 F.Supp. 1326, 1333 (D.Kan.1991) (same); see also Bonger v. American Water Works, 789 F.Supp. 1102, 1107-08 (D.Colo.1992) (court declined to exercise jurisdiction over state statutory claim where it granted summary judgment in favor of defendant on plaintiffs Title VII claim). Plaintiffs state law tort claim for invasion of privacy is therefore dismissed without prejudice. IT IS THEREFORE ORDERED BY THE COURT that defendants’ motions for summary judgment (Docs.36, 39) are granted. IT IS FURTHER ORDERED that plaintiff’s state law tort claim for invasion of privacy is dismissed without prejudice. IT IS SO ORDERED. . In accordance with the applicable summary judgment standard, the facts are uncontroverted or related in the light most favorable to the plaintiff. . See Cragg deposition at 80-81. Plaintiff has not properly set forth the source of Mr. Cragg’s knowledge in the summary judgment record as required by D. Kan. R. 56.1. Nevertheless, the court, viewing the facts that were properly presented in the light most favorable to the plaintiff, assumes Mr. Cragg learned that Mr. Medina is an ex-felon from some improper source. . Plaintiff and the defendants disagree about whether plaintiff is also asserting a claim for the deprivation of due process. Although plaintiff's complaint seems to allege a due process violation, his subsequent papers make clear his intention to assert" }, { "docid": "2556309", "title": "", "text": "California, involve three California parties, and are governed principally by California law. Where it has original jurisdiction over a claim, a federal district court may exercise supplemental jurisdiction over all other claims that are so related to that claim that they form part of the same case and controversy. 28 U.S.C. § 1367(a). Similarly, the district court may decline to exercise jurisdiction if (i) the claim raises a novel or complex issue of state law; (ii) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (iii) the district court has dismissed all claims over which it has original jurisdiction, or (iv) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c) (emphasis added). The decision to dismiss state law claims is left to the discretion of the district judge. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994). In deciding whether to exercise supplemental jurisdiction, the Court should consider whether an exercise of jurisdiction is justified by the interests of judicial economy, convenience, fairness to litigants, and comity. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Where all federal claims have been dismissed before trial, and especially before discovery on the state claims, these factors shall “point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Shchegol v. Rabinovich, No. 98 Civ. 5616, 1999 WL 398025, at *8 (S.D.N.Y.) (declining to exercise supplemental jurisdiction over state law claims in advance of discovery where plaintiffs could “continue to pursue this action in the state court”); Sanders v. Gold Key Lease, Inc., 906 F.Supp. 197, 202 (S.D.N.Y.1995) (declining to exercise supplemental jurisdiction over state law claims where federal claims were dismissed at a preliminary stage). While the principle as expressed in Co-hill is not “a mandatory rule to be applied inflexibly in all cases,” Cohill, supra, 484 U.S. at 350 n. 7, 108 S.Ct. 614 it is applicable in" }, { "docid": "11520591", "title": "", "text": "conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection Clause analysis. We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment.”) (quoting Anderson, 460 U.S. at 786-87 n. 7). At any rate, the defendants have far exceeded their rational basis burden. The defendants have articulated and asserted an important and specifically recognized (not merely legitimate) state purpose for their actions and adduced evidence that their actions were in fact so motivated. The court has found that defendants’ asserted justification passes constitutional muster. Accordingly, defendants are entitled to summary judgment on plaintiffs § 1983 claims. IV. State Law Claims Plaintiffs only remaining claims are for the state law tort of invasion of privacy. The court’s subject matter jurisdiction over this state law claim is predicated on supplemental jurisdiction under 28 U.S.C. § 1367(a). There is no diversity of citizenship. Because the court has dismissed plaintiffs federal claims, those claims over which it had original jurisdiction, the court must determine whether to exercise its supplemental jurisdiction over plaintiffs remaining state law claim. Whether to exercise supplemental jurisdiction is within the district court’s sound discretion. See Brinkman v. State Dept. of Corrections, 863 F.Supp. 1479, 1488 (D.Kan.1994). The district court is expressly authorized to decline to exercise supplemental jurisdiction over a state law claim if the court has dismissed all claims over which it had original jurisdiction. 28 U.S.C. § 1367(c)(3). Discretion to try state law claims in the absence of any federal claims should only be exercised in those cases in which, given the nature and extent of pretrial proceedings, judicial economy, convenience, and fairness would be served by retaining jurisdiction. Thatcher Enterprises v. Cache Corp., 902 F.2d 1472, 1478 (10th Cir.1990). Generally, when federal claims are eliminated before trial, the balance of factors to be considered will point towards declining to exercise jurisdiction over the remaining state law claims. Camegie-Mellon Univ. v. Co-hill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). “Notions of comity" }, { "docid": "23099483", "title": "", "text": "claim should be dismissed, its decision to relinquish jurisdiction over a supplemental state claim will be reversed only for abuse of discretion. See Finz v. Schlesinger, 957 F.2d 78, 83 (2d Cir.) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988)), cert. denied, — U.S. —, 113 S.Ct. 72, 121 L.Ed.2d 38 (1992); Mayer v. Oil Field Sys. Corp., 803 F.2d 749, 757 (2d Cir.1986). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity— will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ., 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7; see also Castellano v. Board of Trustees of the Police Officers’ Variable Supplements Fund, 937 F.2d 752, 758 (2d Cir.) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966)) (“ ‘if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.’ ”), cert. denied, — U.S. —, 112 S.Ct. 378, 116 L.Ed.2d 329 (1991). Here, the district court stated that “the interests of federalism and comity strongly support dismissal of the state law negligence claim” because “the legislative history of the FPA clearly establishes that Congress was determined not to infringe the traditional jurisdiction of the States in the areas of property rights and tort liability.” 786 F.Supp. at 254. Furthermore, we have held that the parties’ judicial economy argument is not dispositive. See Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 564 (2d Cir.) (citation omitted) (“The judicial economy factor should not be the controlling factor, and it may be appropriate for a court to relinquish jurisdiction over pendent claims even where the court has invested considerable time in their resolution.”), cert. denied, — U.S. —, 111 S.Ct. 2829, 115 L.Ed.2d 998 (1991), appeal after remand, In re Ivan" }, { "docid": "18473018", "title": "", "text": "jurisdiction over these remaining claims. In determining whether to continue to retain jurisdiction, district courts consider factors such as judicial economy, convenience, fairness and comity. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1191 (2d Cir.1996). Although a court pos sesses the discretion to retain jurisdiction, “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state law claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir.2003) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)); Baylis v. Marriott Corp., 843 F.2d 658, 665 (2d Cir.1988) (“When all bases for federal jurisdiction have been eliminated from a case so that only pendent state claims remain, the federal court should ordinarily dismiss the state claims.”) (quoting Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the Court, in its discretion, declines to retain jurisdiction over the remaining state law claims given the absence of any federal claims that survive summary judgment, and dismisses such state claims without prejudice. IV. Conclusion For the reasons set forth above, defendants’ motion for summary judgment is granted on the Section 1983 claims. Because the Court declines to exercise supplemental jurisdiction over plaintiffs’ pendent state claims, they are dismissed without prejudice. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. . Where only one party’s Rule 56.1 statement is cited, the opposing party does not dispute that fact or has offered no evidence to controvert that fact. . As noted infra, D.A. disputes that Daniel qualified the statement to him with \"I just heard,” and believed Daniel was the originator of the statement. . As a threshold matter, although both Daniel and Patricia DeFabio have standing to sue, defendants challenge Michael Rusinksy’s standing to sue in this action" }, { "docid": "15723535", "title": "", "text": "at 671, 70 S.Ct. 876; Davis v. United States, 499 F.3d 590, 594 (6th Cir.2007)); Goldberg v. Cablevision Sys. Corp., 281 F.Supp.2d 595, 604 (E.D.N.Y.2003) (“Because the [Declaratory Judgment] Act does not confer subject matter jurisdiction, the plaintiff must have an independent basis for jurisdiction.”). Therefore, Norton cannot rely on Counts 9, 10, and 11 to satisfy federal question jurisdiction. Given the absence of any alternate basis for subject matter jurisdiction, the Court dismisses Counts 9, 10 and 11 without prejudice. See Goldberg, 281 F.Supp.2d at 604 (dismissing remaining claim for declaratory relief after dismissal of other federal claims because court lacked subject matter jurisdiction). J.Remaining State Law Claims (Counts 3 and 7) Having dismissed all claims pled under federal law, the Court declines to exercise supplemental jurisdiction over the remaining state law claims. Where, as here, any federal “claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); see also Oneida Indian Nation of New York v. Madison Cnty., 665 F.3d 408, 437 (2d Cir.2011) (“we have repeatedly said that ‘if a plaintiffs federal claims are dismissed before trial, ‘the state law claims should be dismissed as well.’ ”) (quoting Brzak v. United Nations, 597 F.3d 107, 113-14 (2d Cir.2010)); 28 U.S.C. § 1367(c)(3) (“district courts may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction”). For those reasons, the Court declines to exercise supplemental jurisdiction over Counts 3 and 7 of the Second Amended Complaint and dismisses them without prejudice to being brought in State court. See Oneida Indian Nation of New York, 665 F.3d at 444. IV. CONCLUSION The Court therefore GRANTS the Town Defendants’ motion for judgment on the pleadings and the County Defendant’s motion to dismiss with respect to Plaintiffs claims under 42 U.S.C. § 1983. Counts 1," }, { "docid": "6076988", "title": "", "text": "limit the exercise. In this case, § 1367(c) applies because the Court “has dismissed all claims over which it has original jurisdiction;” namely, Plaintiffs’ claim against Defendant under the Bank Holding Company Act. See 28 U.S.C. § 1367(e) (1994). While § 1367(c) permits a court to dismiss any state law claims where the court has dismissed all the claims over which it had original jurisdiction, the court also can consider other factors. Where § 1367(c) applies, considerations of judicial economy, convenience, fairness, and comity may influence the court’s discretion to exercise supplemental jurisdiction. See Palmer, 22 F.3d at 1569; Executive Software N. Am. v. United States Dist. Court, 15 F.3d 1484, 1493 (9th Cir.1994); New England Co. v. Bank of Gwinnett County, 891 F.Supp. 1569, 1578 (N.D.Ga.1995); Fallin v. Mindis Metals, Inc., 865 F.Supp. 834, 841 (N.D.Ga.1994). Resolution of Plaintiffs’ state law claims depends on determinations of state law. State courts, not federal courts, should be the final arbiters of state law. Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546, 1553 (11th Cir.1992). When coupled with the Court’s discretion to exercise supplemental jurisdiction under § 1367(e), this Court finds that the state law claims remaining in this action are best resolved by the Georgia courts. This is especially true here where the Court is dismissing Plaintiffs’ federal law claim prior to trial. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (dismissal of state law claims strongly encouraged when federal law claims are dismissed prior to trial); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988) (“When federal law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”); Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir.1994) (remanding ease to district court to dismiss plaintiffs state law claims where court had granted summary judgment on plaintiffs federal law claims). The Court finds that judicial economy, fairness, convenience, and" }, { "docid": "3120031", "title": "", "text": "because of the absence of proof that Renner exercised supervisory/managerial authority over Ball. Ball has thus failed to demonstrate the existence of a material factual issue, so that summary judgment was properly granted in Renner’s favor as to Ball’s Title VII claim. And because the issue of supervisory liability has proved dis- positive, we find it unnecessary to consider the alternative grounds relied upon by the district court in support of its ruling. Intentional Infliction of Emotional Distress Now that Bah’s federal claim has dropped out of the picture, her state law claim of intentional infliction of emotional distress is no longer supplemental to any federal question claim. Under those circumstances the most common response to a pretrial disposition of federal claims has been to dismiss the state law claim or claims without prejudice — that is the seminal teaching of United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), reconfirmed in Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988) and repeated in a host of cases such as Sawyer v. County of Creek, 908 F.2d 663, 668 (10th Cir.1990). That concept has been codified in 28 U.S.C. § 1367(c)(3), part of the supplemental jurisdiction enactment in 28 U.S.C. § 1367. There are of course the best of reasons for a district court’s deferral to a state court rather than retaining and disposing of state law claims itself — such factors (taught by Gibbs and repeated in Carnegie-Mellon) as judicial economy, fairness, convenience and comity. As this Court has said in Thatcher Enters. v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir.1990): Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary. Here the “compelling reasons” point strongly in favor of state rather than federal court resolution of the state law claim. We note that Ball is free to pursue her claim in a Wyoming court because even if the statute of limitations would otherwise have run, Wyoming’s saving statute (Wyo.Stat. § 1-3-118" }, { "docid": "542525", "title": "", "text": "made “under color of state law.” Next, the defendants argue that if Dow’s § 1983 claim is dismissed, then the court should decline jurisdiction over her pendent state claims and dismiss the suit. The decision of whether to exercise jurisdiction is within the district court’s discretion. In fact it is expressly authorized to decline supplemental jurisdiction if the court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). In response, Dow contends the defendants will not be harmed if the court retains jurisdiction over the pendent claims. Unless the district court is aware of compelling reasons weighing in favor of exercising supplemental jurisdiction, it should dismiss the suit because notions of comity and federalism demand that a state court try its own lawsuits. Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir.1990). When making such a decision, the district court should consider the nature and extent of pretrial proceedings, judicial economy, convenience, and fairness. Id.; see also Siefkes v. Nichols, 788 F.Supp. 477, 481-82 (D.Kan.1992) (failure to state a claim under § 1983 prompted court to dismiss pendent state law claims). The court finds there is no compelling reason to exercise supplemental jurisdiction over Dow’s wrongful discharge and breach of employment contract claims. Therefore, these claims shall be dismissed. IT IS THEREFORE ORDERED this 6th day of October, 1993, that defendant’s motion for summary judgment (Dkt. No. 57) is granted. Plaintiffs remaining state law claims are dismissed. . Because in most circumstances § 1983 and the Fourteenth Amendment requirements are identical, the analysis of causes of action brought under both are identical. Thus, Fourteenth Amend- merit cases provide guidance for the resolution of § 1983 cases and vice versa. The only distinction between the two arises when there is joint action by private parties and state officials. Lugar, 457 U.S. at 928 n. 8, 102 S.Ct. at 2749 n. 8 (1982)." }, { "docid": "22122764", "title": "", "text": "convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988). This approach was codified at 28 U.S.C. § 1367(e)(3), which provides that a district court “may” (rather than must) decline to exercise jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction.” As a rule of thumb, however, the Gibbs dictum remains valid. When all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims, or remanding them to state court if the action was removed. Carnegie-Mellon, 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7. Accord Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1251 (7th Cir.1994); Purgess v. Sharrock, 33 F.3d at 138; Timm v. Mead Corp., 32 F.3d at 276. This court has consistently applied Gibbs’s amended dictum. Taylor v. First of America Bank-Wayne, 973 F.2d 1284, 1287 (6th Cir.1992) (“when ‘all federal claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction. ...”’ (citing Carnegie-Mellon, 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7)); Aschinger v. Columbus Showcase Co., 934 F.2d 1402, 1412 (6th Cir.1991) (only “overwhelming interests in judicial economy may allow a district court to properly exercise its discretion and decide a pendent state claim even if the federal claim has been dismissed before trial.”); Gaff v. Federal Deposit Ins. Corp., 814 F.2d 311, 319 (6th Cir.1987) (“It is generally recognized that where, as in this case, federal issues are dismissed before trial, district courts should decline to exercise pendent jurisdiction over state law claims.”). A close look at precedent indicates that not all “pretrial dismissals” affect supplemental claims in the same manner. The vast majority of pretrial dismissals, such as a dismissal on a motion for summary judgment, do not affect the trial court’s ability to resolve supplemental claims. But there are two types of pretrial dismissals that appellate courts have scrutinized closely. The first is a dismissal under Rule 12(b)(1). If the court dismisses" }, { "docid": "11049473", "title": "", "text": "“In the usual case in which all federal law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state law claims.” Morse v. University of Vermont, 973 F.2d 122, 127-128 (2d Cir.1992). In this case, the pendent state claim arose from the same set of facts as did the original federal claim. Accordingly, it was properly joined pursuant to 28 U.S.C. § 1367(a). However, once the federal claim was dismissed, under § 1367(c)(3), the remaining state claim becomes subject to dismissal as the court may, in its discretion, decline supplemental jurisdiction over this claim. While the complaint in this case was filed in 1991, a trial date has not yet been set, and the remaining issues are solely based on state discrimination law. Accordingly, based on relevant law, the court declines to exercise subject matter jurisdiction over the state claim. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988) (when “all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity— will point toward declining to exercise jurisdiction over the remaining state-law claims”); Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir.1988) (“the basis for retaining jurisdiction is weak when ... the federal claims are dismissed before trial”); Porras v. Montefiore Medical Center, 742 F.Supp. 120, 127 (S.D.N.Y.1990) (court dismissed pendent state claims based on state employment discrimination law and common law assault where Title VII claims was dismissed on summary judgment prior to trial). Further, as summary judgment has been granted, Defendant’s alternative motions are moot. CONCLUSION Based on the foregoing discussion, Defendant’s motion for summary judgment is GRANTED. Defendant’s motion to dismiss the pendent state claim is also GRANTED. Defendant’s alternative motions are, therefore, moot. SO ORDERED. . S. references are to the page number of the transcript of the deposition of Mary Lou Stetka, dated June 23, 1992. . H. references are to the page number of the" }, { "docid": "11049472", "title": "", "text": "district court must exercise supplemental jurisdiction if the requirements of § 1367(a) are met, unless one of the exceptions set forth in § 1367(c) exist. Wilson v. Roberson, 1993 WL 119695 at *2 (S.D.N.Y. 1993). Under § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it had original jurisdiction. The Second Circuit has held that “absent exceptional circumstances,” where federal claims are disposed of on summary judgment grounds, courts should “abstain from exercising pendent jurisdiction.” Drexel Burnham Lambert v. Saxony Heights Realty, 777 F.Supp. 228, 240 (S.D.N.Y.1991) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986). “Factors to be considered by the court include (1) the length of time the matter has been pending before the federal court; (2) the proximity of the trial date; and (3) the predominance of issues of federal, as opposed to local, concern.” Drexel Burnham Lambert, supra, at 240. “In the usual case in which all federal law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state law claims.” Morse v. University of Vermont, 973 F.2d 122, 127-128 (2d Cir.1992). In this case, the pendent state claim arose from the same set of facts as did the original federal claim. Accordingly, it was properly joined pursuant to 28 U.S.C. § 1367(a). However, once the federal claim was dismissed, under § 1367(c)(3), the remaining state claim becomes subject to dismissal as the court may, in its discretion, decline supplemental jurisdiction over this claim. While the complaint in this case was filed in 1991, a trial date has not yet been set, and the remaining issues are solely based on state discrimination law. Accordingly, based on relevant law, the court declines to exercise subject matter jurisdiction over the state claim. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988) (when “all federal-law" }, { "docid": "6395111", "title": "", "text": "Sch., 132 F.3d 542, 549 (10th Cir.1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), and United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). We generally decline to exercise pendent jurisdiction in such instances because “Motions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.” Ball v. Renner, 54 F.3d 664, 669 (10th Cir.1995) (internal quotation marks and citation omitted). Similarly, Colorado law recognizes “if a plaintiff asserts all of his or her claims, including state law claims, in federal court, and the federal court declines to exercise supplemental jurisdiction [over the state claims], the plaintiff may refile those claims in state court.” Dalai v. Alliant Techsystems, Inc., 934 P.2d 830, 834 (Colo.App. 1996) (relying on 28 U.S.C. § 1367(d), which pertains to supplemental jurisdiction and states the period of limitation for a state claim is tolled while claim is pending in federal court and for thirty days after it is dismissed unless state law provides for a longer tolling period). Having affirmed the district court’s dismissal of the federal issues, only the supplemental or pendent state tort issue of assault and battery is left. We believe this issue is best left for a state court’s determination, including whether Colorado Revised Statute § 13-80-119 and/or § 18 — 1— 707, as applied specifically to peace officers, require either objective or subjective reasonable force, as disputed by the parties. Accordingly, we decline to exercise jurisdiction over Mr. Brooks’s remaining state law claim, and, instead, reverse the district court’s grant of summary judgment on that claim and remand with instructions to dismiss it without prejudice. See Bauchman, 132 F.3d at 549-50; Ball, 54 F.3d at 669. III. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to Deputies Gaenzle and Smith on Mr. Brooks’s federal actions for excessive force and conspiracy and malicious prosecution. We REVERSE the district court’s grant of summary judgment to the deputies on the remaining state law" }, { "docid": "13164691", "title": "", "text": "Because Payne has failed to set forth facts from which a jury might reasonably find either that the stated reasons for his termination were pretext, or that the termination was motivated by retaliation, Defendants are entitled to summary judgment on Payne’s retaliation claim. B. State Law Claims The Court has determined that summary judgment is appropriately granted on all federal claims asserted by both the Plaintiff and the Defendants. Although the Court has discretion to retain jurisdiction over the remaining state law claims, Baddie v. Berkeley Farms, Inc., 64 F.3d 487 (9th Cir.1995), the practice in the Ninth Circuit is to dismiss the state law claims if all the federal claims are dismissed prior to trial. See Danner v. Himmelfarb, 858 F.2d 515, 523 (9th Cir.1988); Carnegie-Mellon v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988) (when federal claims are resolved pri- or to trial, the Court has a “powerful reason” to decline to exercise jurisdiction over the plaintiffs pendent state claims); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). A determination of whether to exercise pendent jurisdiction involves considerations of comity, judicial economy, convenience and fairness to the litigants. Carnegie-Mellon, 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7. During the nearly six months since the state and federal claims were consolidated in federal court on May 30, 1995, all the claims (including the state law claims) have been the subject of extensive discovery and trial preparation, as evidenced by the present motions for summary judgment. If this Court declines to exercise pendant jurisdiction over the state claims, those efforts will not be wasted. Nothing prevents the parties from essentially resubmitting the same briefs, reasserting the same factual and legal arguments, in the state forum. Although there may be some delay involved in recalen-daring the matter in state court, any inconvenience is offset by considerations of comity, which dictate that these purely state law matters are more properly resolved in state court. The state court managed the case for over a year" } ]

[ { "docid": "18729203", "title": "", "text": "and allocate subjects of specialty and clients among them; this “price fixing” and “market division” do not become unlawful just because the firm is new. The benefits of cooperation may be greatest when launching a new venture. Polk Bros, and Forest City were cooperating to produce, not to curtail output; the cooperation increased the amount of retail space available and was at least potentially beneficial to consumers; the restrictive covenant made the cooperation possible. The Rule of Reason therefore applies. Discriminating analysis is necessary. Cf. Harold Friedman Inc. v. Thorofare Markets Inc., 587 F.2d 127, 141-42 (3d Cir.1978) (exclusivity clauses in leases at shopping centers must be assessed under the Rule of Reason); Wesley J. Liebeler, Antitrust Law and the New Federal Trade Commission, 12 Sw.U.L.Rev. 166 (1981) (discussing free riding in shopping centers). The first step in any Rule of Reason case is an assessment of market power. Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 265 (7th Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985); General Leaseways, supra, 744 F.2d at 596 (collecting cases); Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268-69 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1272, 71 L.Ed.2d 461 (1982) (collecting cases applying this principle to restrictive covenants); cf. NCAA, supra, 104 S.Ct. at 2965 (only “naked” arrangements may be condemned without proof of market power); Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 1566-68, 80 L.Ed.2d 2 (1984) (market power is essential even in some per se cases). Unless the firms have the power to raise price by curtailing output, their agreement is unlikely to harm consumers, and it makes sense to understand their cooperation as benign or beneficial. Forest City has not argued that the arrangement in question here affects a substantial portion of any market. It governs two stores on a single site. The stores are surrounded by a vast parking lot; the site apparently attracts customers with cars, the very customers who have many other options within a reasonable distance. There was a full trial," } ]

[ { "docid": "8995905", "title": "", "text": "1 provides: “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. Recovery for a violation of § 1 requires proof of 1) a contract, combination or conspiracy 2) affecting interstate commerce 3) which imposes an unreasonable restraint of trade. Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1158 (5th Cir.1992). The analytical approach to a § 1 claim differs depending on the nature of the challenged conduct. “Certain arrangements are conclusively presumed to be unreasonable restraints of trade, simply by virtue of their obvious and necessary effect on competition.” E.A. McQuade Tours, Inc. v. Consolidated Air Tour Manual Committee, 467 F.2d 178, 186 (5th Cir.1972). Conduct of this type is per se illegal. All other activities are subject to more laborious scrutiny under what is known as the rule of reason. Defendants urge a right to recover for violations of § 1 under both analytical models. The Court will address each claim in turn. a. Per Se Analysis “A tying arrangement is the sale or lease of one product on the condition that the buyer or lessee purchase a second product.” Breaux Bros. Farms, Inc. v. Teche Sugar Co., Inc., 21 F.3d 83, 86 (5th Cir.1994). The desired product is called the ‘tying’ product; the other is the ‘tied’ product. United Farmers Agents Ass’n. Inc. v. Farmers Ins. Exch., 89 F.3d 233, 236 n. 2 (5th Cir.1996) (citing 9 Phillip E. Areeda, Antitrust Law ¶ 1700a (1991)). The essence of a tying claim is forcing. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 13, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). To prove a per se tying claim, a plaintiff must show: 1) the involvement of two separate products or services; 2) the sale of one product or service is conditioned on the purchase of another; 3) the seller has sufficient economic power in the market for the tying product; and 4) an effect on a not" }, { "docid": "9406565", "title": "", "text": "companies have used the color blue, Brady’s advertising in the small and sophisticated wire marker consumer market has been limited, and the alleged marks are not arbitrary and unique but are extremely weak. Therefore, the court finds that Brady may not recover under the Illinois Anti-Dilution Act. III. Antitrust Violations Approximately one and one-half years after Brady filed its complaint in this action, Lem filed an amended answer and counterclaim alleging for the first time that Brady had violated the antitrust laws. According to Lem, Brady filed this action for an anti-competitive purpose, tied leases for its patented Markermatic machines with the pur chase of its wire marker cards, conspired with its distributors to set prices, and discriminated in price, all in violation of the Sherman and Clayton Acts. A. General Antitrust Principles The purpose of antitrust law is to promote economic efficiency through protection of the competitive process, not competitors. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977); Premier Electrical Construction Co. v. National Electrical Contractors Association, Inc., 814 F.2d 358, 368 (7th Cir.1987); Fishman v. Estate of Wirtz, 807 F.2d 520, 536 (7th Cir.1986); Morrison v. Murray Biscuit Co., 797 F.2d 1430, 1437 (7th Cir.1986). This court must interpret and apply the Sherman and Clayton Acts with this fundamental principle in mind. 1. Sherman Act Section 1 Violations Section 1 of the Sherman Act provides that \"every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among several States, or with foreign nations ... shall be illegal.” 15 U.S.C. § 1. In the landmark case of Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911), the Supreme Court clarified that Section 1 prohibits only unreasonable contracts, combinations and conspiracies in restraint of trade. Section 1 prohibits only unreasonable cooperative efforts because a certain type and amount of cooperation may be necessary for efficient production of goods and provision of services. Premier Electrical, at 370; Polk Bros., Inc. v. Forest City" }, { "docid": "13386088", "title": "", "text": "“without any inquiry in individual cases as to their actual competitive effect.” U.S.S.G. § 2R1.1 commentary (background). Such a rule avoids the necessity of making “a burdensome inquiry into actual market conditions” to determine when the conspiracy “involves anticom-petitive conduct.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 15-16 & n. 25, 104 S.Ct. 1551, 1559-60 & n. 25, 80 L.Ed.2d 2 (1984). Thus, in a price-fixing case under the Sherman Act, the government does not have “the burden of ascertaining from day to day whether it has become unreasonable through the mere variation of economic conditions.” United States v. Trenton Potteries Co., 273 U.S. 392, 397-98, 47 S.Ct. 377, 379-80, 71 L.Ed. 700 (1927). The unreasonableness of the prices achieved pursuant to a price-fixing agreement is irrelevant. Broadcast Music, 441 U.S. at 8 n. 11, 99 S.Ct. at 1556 n. 11. Likewise, in Socony-Vacuum Oil Co., the Supreme Court made clear that showing effect or success is not required to establish a violation of § 1 of the Sherman Act: “It is the ‘contract, combination ... or conspiracy, in restraint of trade or commerce’ which § 1 of the Act strikes down, whether the concerted activity be wholly nascent or abortive on the one hand, or successful on the other.” Socony-Vacuum, 310 U.S. at 224 n. 59, 60 S.Ct. at 845-46 n. 59 (citations omitted). “And the amount of interstate or foreign trade involved is not material since § 1 of the Act brands as illegal the character of the restraint not the amount of commerce affected.” Id. (citing Patterson v. United States, 222 F. 599, 618, 619 (6th Cir.), cert. denied, 238 U.S. 635, 35 S.Ct. 939, 59 L.Ed. 1499 (1915); Steers v. United States, 192 F. 1, 5 (6th Cir.1911)). Thus, as the district court in this case recognized, the success of a price-fixing agreement is irrelevant for establishing a violation of § 1 of the Sherman Act. It would be an anomaly to declare price-fixing illegal per se, without regard to its success, merely because of its plainly anti-competitive effect, but to provide" }, { "docid": "21134169", "title": "", "text": "the plaintiffs contend that a liberal construction of the plaintiffs’ class action complaint “strongly” mitigates against its dismissal at the pleading stage. C. Has the Plaintiff Sufficiently Alleged the Required “Antitrust Injury”? Section 1 of the Sherman Act states that “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states ... is declared to be illegal.” 15 U.S.C. § 1. If the plaintiffs establish such a conspiracy, they must prove that the agreement constituted an unreasonable restraint of trade either per se or under the “rule of reason.” Conduct considered per se illegal is present only in a limited type of case. See Continental T.V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). As stated in Capital Imaging Associates, P.C. v. Mohawk Valley Medical Associates, Inc., 996 F.2d 537, 542, 543 (2d Cir.1993), such cases include horizontal and vertical price-fixing, see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 841, 84 L.Ed. 1129 (1940); Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 405, 31 S.Ct. 376, 383, 55 L.Ed. 502 (1911); division of a market into territories, see United States v. Topco Assocs., 405 U.S. 596, 609, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972); and certain tying arrangements, see Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984). In most antitrust cases the plaintiffs must prove an antitrust injury under the “rule of reason.” The plaintiffs must prove “that the challenged action had an actual adverse effect on competition as a whole in the relevant market; to prove it has been harmed as an individual competitor will not suffice.” Capital Imaging, at 543; see, e.g., Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 343-44, 110 S.Ct. 1884, 1893-94, 109 L.Ed.2d 333 (1990); Austin v. McNamara, 979 F.2d 728, 739 (9th Cir.1992). In the Court’s view, the plaintiffs have sufficiently alleged that the defendants’ conduct has had" }, { "docid": "14116177", "title": "", "text": "district court’s order awarding relief on the basis of the defendants’ violation of Section 1 originally awarded TXP $30,624 in damages. Acting upon the defendants’ motion for additional findings of fact to clarify the basis for the damage award, the district court subsequently reduced the single damage award to $10,091.07, which was then trebled to $30,273.21. In addition, the court issued an injunction enjoining the defendants from conditioning the lease of the Omni upon the use of SEATS as a ticketing service. The terms of the injunction permitted TOPCOL to require ticketing services to post a large guarantee bond for each concert as a precondition to selling tickets for an Omni event. Finally, the district court awarded TXP $59,272.50 in attorney’s fees. Final judgment was entered on February 4, 1986. This appeal followed. III. DISCUSSION A. Antitrust Liability Under Section 1 of the Sherman Act Section 1 of the Sherman Act prohibits “[ejvery contract, combination ... or con spiracy in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. The Act unequivocally endorses the economic policy of free and unfettered competition in the open market. See Northern Pacific Railway Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958). In carrying out the letter and spirit of the Act, the courts have consistently struck down as illegal per se certain types of actions and practices which by their nature unreasonably restrain competition and lack any redeeming virtue. Tying arrangements were placed into this category of per se anticompetitive practices long ago. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 608-10, 73 S.Ct. 872, 880-81, 97 L.Ed. 1277 (1953); International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 15, 92 L.Ed. 20 (1947); see also Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 9-10, 104 S.Ct. 1551, 1556-57, 80 L.Ed.2d 2 (1984). A tying arrangement is “an agreement by a party to sell one product [the “tying” product] but only on the condition that the buyer also purchases a different (or “tied”) product.”" }, { "docid": "7421439", "title": "", "text": "372-73; see M & M Medical Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 168 (4th Cir.1992) (en banc) (“A rising share may show more probability of success than a falling share.... [CJlaims involving greater than 50% share should be treated as attempts at monopolization when the other elements for attempted monopolization are also satisfied.”) (citations omitted); see also IIIA Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 807d, at 354-55 (1996) (acknowledging the significance of a large, rising market share to the dangerous probability element). II. SECTION ONE OF THE SHERMAN ACT Section 1 of the Sherman Act prohibits “every contract, combination ..., or conspiracy, in restraint of trade or commerce. ...” 15 U.S.C. § 1. Pursuant to this statute, courts have condemned commercial stratagems that constitute unreasonable restraints on competition, see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Chicago Board of Trade v. United States, 246 U.S. 231, 238-39, 38 S.Ct. 242, 62 L.Ed. 683 (1918), among them “tying arrangements” and “exclusive dealing” contracts. Tying arrangements have been found unlawful where sellers exploit their market power over one product to force unwilling buyers into acquiring another. See Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 12, 104 5.Ct. 1551, 80 L.Ed.2d 2 (1984); Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 6, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 605, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). Where agreements have been challenged as unlawful exclusive dealing, the courts have condemned only those contractual arrangements that substantially foreclose competition in a relevant market by significantly reducing the number of outlets available to a competitor to reach prospective consumers of the competitor’s product. See Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 393 (7th Cir.1984). A. Tying Liability for tying under § 1 exists where (1) two separate “products” are" }, { "docid": "22987966", "title": "", "text": "Klor’s is distinguishable in that it alleges a widespread horizontal and vertical combination. Klor’s expressly stated: “This is not a case of a single trader refusing to deal with another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship.” 359 U.S. at 212, 79 S.Ct. at 709. The Court thus implied that the latter situations do not lend themselves to a per se standard of analysis. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775, reh’g. den., 466 U.S. 994, 104 S.Ct. 2378, 80 L.Ed.2d 850 (1984), reaffirmed that only vertical arrangements accompanying or implementing price-fixing schemes are to be considered per se violations of the antitrust laws; other vertical arrangements are to be tested under the Rule of Reason. See also Car Carriers v. Ford Motor Company, 745 F.2d 1101,1108 (7th Cir.1984), cert, denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Though the Second Amended Complaint alleges that unnamed co-conspirators combined with Gallo and WDI in a concerted refusal to deal, appellant never alleges the existence of a horizontal or vertical arrangement which would trigger a per se analysis. Gallo and WDI are not competitors. Appellant’s claims of discrimination are vertical and nonprice-related. Any arrangement between them involving a group boycott or concerted refusal to deal with Rut-man necessarily consists of a vertical arrangement to which the Rule of Reason applies. Calculators Hawaii, Inc. v. Brandt, Inc., 724 F.2d 1332, 1337 n. 2 (9th Cir.1983). See also Fine v. Barry and Enright Productions, 731 F.2d 1394 (9th Cir.), cert, denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984); Cascade Cabinet Co. v. Western Cabinet and Millwork, 710 F.2d 1366 (9th Cir.1983). IV. SECTION 1 OF THE SHERMAN ACT Count 1 alleges that Gallo violated section 1 of the Sherman Act. This section provides in part: 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. Every person who shall make any" }, { "docid": "17908806", "title": "", "text": "back as 1940, it has been clear that horizontal price-fixing is illegal per se without'requiring a showing of actual or likely impact on a market. Socony-Vacuum Oil, 310 U.S. at 223-224, 60 S.Ct. at 844-845, and its progeny; Areeda & Haverkamp, An titrust Law (1986) § 1610 at 415, 418-419. This is because joint action by competitors to suppress price-cutting has the requisite “substantial potential for impact on competition,” Superior Court Trial Lawyers Ass’n, 493 U.S. at 433, 110 S.Ct. at 780 (quoting Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 16, 104 S.Ct. 1551, 1560, 80 L.Ed.2d 2 (1984)) to warrant per se treatment. The district court would require plaintiff in this case to demonstrate a particular potential for impact on the market,'when one of the purposes of the per se rule is that in cases like this such a potential is so well-established as not to require individualized showings. Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 646-647, 100 S.Ct. 1925, 1927-1928, 64 L.Ed.2d 580 (1980); Broadcast Music, Inc. v. Columbia Broadcasting Systems, Inc., 441 U.S. 1, 7-8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1. The pernicious effects are conclusively presumed. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir.1984), certiorari denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821. (1985). In support of its holding that Denny’s needed to show that the restraint here had a substantial potential for impact on competition in the market as a whole, the district court relied on Family Boating Center, Inc. v. Washington Area Marine Dealers Association, 1982-1 Trade Cas. (CCH) ¶ 64,592, 1982 WL 1815 (D.D.C.1982). In that case, the court refused to apply the per se rule to a case in which the plaintiffs competitors had engaged in concerted action to exclude it from exhibiting at a boat show. The facts in the opinion are sketchy, but the concerted action is characterized as a group boycott, apparently because the defendants — themselves also competitors of plaintiff Family Boating Centers — were the ones who refused to sell it exhibition space." }, { "docid": "3003887", "title": "", "text": "arrangement under Section 1. As ultimately defined by AMI, the alleged tying product consists of the IBM parts necessary to fabricate and install the equivalent of 308X net priced upgrades, and the tied product consists of the engineering services involved in the fabrication and installation of such upgrades. AMI’s Post-Trial Reply Memorandum of Law (hereinafter “A.R.M.”) at 9. I. A tie exists when a seller refuses to sell a product (the tying product) alone and insists that any buyer who wants it must also purchase another product (the tied product). See L. Sullivan, Handbook of the Law of Antitrust § 150, at 431 (1977). “[T]he Sherman Act does not prohibit ‘tying’, it prohibits ‘contracts] ... in restraint of trade’.” Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 21 n. 34, 104 S.Ct. 1551, 1563 n. 34, 80 L.Ed.2d 2 (1984). Only a tying arrangement which imposes an unreasonable restraint of trade is unlawful. Certain tying arrangements are per se unlawful under the antitrust laws; that is, they are deemed unreasonable as a matter of law and “no specific showing of unreasonable competitive effect is required.” Fortner Enterprises v. United States Steel, 394 U.S. 495, 498, 89 S.Ct. 1252, 1256, 22 L.Ed.2d 495 (1969) (“Fortner I”); see generally Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958) (respecting per se unlawful arrangements in general: “[T]here 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.”). A tying arrangement which does not warrant per se condemnation may be found to violate the Sherman Act under a rule of reason analysis. Hyde, 466 U.S. at 17-18, 104 S.Ct. at 1560-61; Bogus v. American Speech & Hearing Ass’n, 582 F.2d 277, 287 (3d Cir.1978). Per se rules and the rule of reason are mechanisms “employed ‘to form a judgment about the competitive significance of the" }, { "docid": "14444671", "title": "", "text": "selling software support with hardware maintenance. This court denied Prime’s motion to stay the injunction pending appeal. II Section 1 of the Sherman Act prohibits “[ejvery contract, combination ... or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. The Supreme Court has consistently held that this provision only proscribes unreasonable restraints of trade. See Business Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). Tying arrangements have long been considered unreasonable restraints of trade. See International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Fortner Enters., Inc. v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969) (Fortner I). A tying arrangement is “an agreement by a party to sell one product but only on the condition that the buyer also purchase a different (or tied) product.” Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Not all sales of two products together constitute an illegal tying arrangement. Jefferson Parish Hosp. Dist., No. 2 v. Hyde, 466 U.S. 2, 11, 104 S.Ct. 1551, 1558, 80 L.Ed.2d 2 (1984).. The packaging of two items together violates the antitrust laws only when a seller has sufficient market power over the tying product such that it can force buyers to purchase the tied product. Id. at 12, 104 S.Ct. at 1558. A plaintiff can establish an illegal tying arrangement under either a per se standard or a rule of reason standard. To establish a per se violation: “1) There must be a tying arrangement between two distinct products or services; 2) The seller must have sufficient economic power in the tying market to restrain appreciably competition in the tied product market; and 3) The amount of commerce affected must be ‘not insubstantial.’ ” Directory Sales Management v. Ohio Bell Tel. Co., 833 F.2d 606, 609 (6th Cir.1987) (quoting Bouldis v. United States Suzuki Motor Corp., 711 F.2d 1319, 1330 (6th Cir.1983)). Even if a per se violation is established, a defendant" }, { "docid": "9406567", "title": "", "text": "Enterprises, Inc., 776 F.2d 185, 188 (7th Cir.1985). Over the years, courts have found certain types of contractual arrangements unreasonable as a matter of law, because they pose an unacceptable risk of stifling competition. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984). Courts presume that these “per se” illegal arrangements are unreasonable without inquiring as to whether the arrangement has had an anticompetitive effect in the relevant market. Jefferson Parish, 466 U.S. at 15-16, 104 S.Ct. at 1560; Brillhart v. Mutual Medical Insurance Co., 768 F.2d 196, 199 n. 2 (7th Cir.1985); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Anti-competitive effect is still a requirement in these cases; however, courts conclusively presume anticompetitive effect because the type of conduct complained of is obviously destructive of free competition. LektroVend Corp. v. Vendo Co., 660 F.2d 255, 265 n. 11 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir.1980). Where the conduct complained of is of a type with which courts have had little experience, or a type which is not manifestly anticompetitive, courts analyzing the conduct under Section 1 apply the rule of reason standard. United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 787-90 (7th Cir.1981). The rule of reason standard requires the plaintiff to show that the defendant’s conduct caused an anticompetitive effect in the relevant market. LektroVend, 660 F.2d at 268. Courts have traditionally applied the rule of reason standard in the majority of Section 1 challenges to allegedly anticompetitive contracts, combinations and conspiracies. U.S. Trotting, 665 F.2d at 787. 2. Sherman Act Section 2 Violations Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, of combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with" }, { "docid": "11910559", "title": "", "text": "This was error. But because the Bogans could not prevail at trial under any characterization of the Agreement, we affirm the District Court’s grant of summary judgment. For the present analysis, we accept arguendo the facts as alleged by the Bogans as non-movants at summary judgment. Thus, we assume plaintiffs’ view of the Agreement as primarily horizontal, rather than vertical. The language of the Sherman Act is broad, prohibiting every contract, combination, or conspiracy in restraint of trade. See 15 U.S.C. § 1. Applying the rule of reason, the Supreme Court has read the Act to forbid only “unreasonable” restraints, as a literal reading would absurdly bar all contracts. See Standard Oil Co. v. United States, 221 U.S. 1, 60, 87, 31 S.Ct. 502, 55 L.Ed. 619 (1911). In particular, not all cooperative conduct has a deleterious effect on competition; indeed, some cooperative arrangements foster rather than harm competition. See, e.g., Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1, 20, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979) (noting that cooperative practices are acceptable if “designed to ‘increase economic efficiency and render markets more, rather than less, competitive’ ” (quoting United States v. United States Gypsum Co., 438 U.S. 422, 441 n. 16, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978))); Board of Trade v. United States, 246 U.S. 231, 240-41, 38 S.Ct. 242, 62 L.Ed. 683 (1918) (noting that futures trading created a public market for grain arrivals). Certain practices, however, are so obviously anticompetitive that courts consider these to be •per se violations of the Sherman Act. The Supreme Court has recognized 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. This principle of per se unreasonableness ... avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint" }, { "docid": "21531409", "title": "", "text": "1 of the Sherman Act. Section 1 provides: “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 hereby declared to be illegal.” 15 U.S.C. § 1. The existence of an agreement is the hallmark of a Section 1 claim. Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 999 (3d Cir.1994). Liability is necessarily based on some form of “concerted action.” Id. Indeed, we have defined a conspiracy as a “conscious commitment to a common scheme designed to achieve an unlawful objective.” Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980). In other words, “ ‘unity of purpose or a common design and understanding or a meeting of the minds in an unlawful arrangement’ must exist to trigger Section 1 liability.” Alvord-Polk, 37 F.3d at 999, (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)). In determining whether certain concerted action amounts to an unreasonable restraint this court applies one of two methods of.analysis. See e.g. Rossi v. Standard Roofing, 156 F.3d 452, 461 (3d Cir.1998). The concerted action is either analyzed (1) through the per se standard, which presumes that the questionable conduct has anticom-petitive effects without comprehensive inquiry into whether the concerted action produced adverse, anticompetitive effects, or (2) through the so-called rule of reason, a case-by-case method that involves consideration of all of the circumstances of a case to decide whether certain concerted action should be prohibited because it amounts to an anti-competitive practice. The analysis to be applied depends on the essence of concerted action in dispute. Id. Generally, price-fixing agreements are considered a per se violation of the Sherman Act. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Per se violations include those types of restraints on competition that are in and of themselves considered unreasonable because “their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed" }, { "docid": "21809034", "title": "", "text": "conduct, not on the actual market effects that conduct may or may not have caused. Per se illegal agreements or practices are those that, “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.” N. Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). In cases alleging per se violations of the Sherman Act, unlike general claims that a particular practice unreasonably restrains trade, courts look to the nature of the agreement or practice, not the actual market effects of that conduct. See id.; Jefferson Par., 466 U.S. at 21, 104 S.Ct. 1551 (“The definitional question depends on whether the arrangement may have the type of competitive consequences addressed by the rule.”). If the challenged conduct, by its nature, is of the type that has been declared presumptively illegal, then the inquiry ends; courts need not, and should not consider the actual market effects. NCAA v. Board of Regents, 468 U.S. 85, 103-04, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) (“Per se rules are invoked when surrounding circumstances make the likelihood of anticompeti-tive conduct so great as to render unjustified further examination of the challenged conduct.” (emphasis added)). In such cases, the harm to competition is presumed. Id. (distinguishing between per se claims and general Sherman Act claims based on “whether the ultimate finding is the product of a presumption or actual market analysis” (emphasis added)). In Jefferson Parish Jefferson Hospital District Number 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984), the Supreme Court stated unequivocally, “[i]t is far too late in the history of our antitrust jurisprudence to question the proposition that certain tying arrangements pose an unacceptable risk of stifling competition and therefore are unreasonable ‘per se.’ ” Jefferson Par., 466 U.S. at 9, 104 S.Ct. 1551. This rule has been endorsed by the Court many times since it was “first enunciated in International Salt" }, { "docid": "2238432", "title": "", "text": "unlawful “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.... ” 15 U.S.C. § 1. Although this provision literally bans every agreement involving interstate commerce, the Supreme Court has interpreted it to prohibit only those contracts that “unreasonably” restrain competition. E.g., United States v. Topco Assocs., Inc., 405 U.S. 596, 606-08, 92 S.Ct. 1126, 1133-34, 31 L.Ed.2d 515 (1972); Standard Oil Co. v. United States, 221 U.S. 1, 55-60, 31 S.Ct. 502, 513-16, 55 L.Ed. 619 (1911). To establish a Section 1 violation, plaintiffs must therefore show “ ‘a combination or some form of concerted action between at least two legally distinct economic entities’ ” that “ ‘constituted an unreasonable restraint of trade either per se or under the rule of reason.’ ” Primetime 21 Joint Venture v. Nat’l Broad. Co., 219 F.3d 92, 103 (2d Cir.2000) (quoting Capital Imaging, 996 F.2d at 542). A court decides which antitrust analysis to apply by first determining whether the challenged agreement falls into a category of conduct that the Supreme Court has found likely to have predominately anticompetitive effects and therefore to be illegal per se. See Maricopa, 457 U.S. at 344-45, 351, 102 S.Ct. at 2473-74, 2476; Bogan v. Hodgkins, 166 F.3d 509, 515 (2d Cir.1999) (citing Northwest Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 298, 105 S.Ct. 2613, 2621, 86 L.Ed.2d 202 (1985)). The Supreme Court has long recognized that a limited class of restraints are so manifestly anticompeti-tive that they are per se violations of the antitrust laws. The judicial rationale for this per se rule is best summarized by Justice Black in the seminal case, Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958): [Tjhere 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. This" }, { "docid": "22582348", "title": "", "text": "1 violation must first establish a combination or some form of concerted action between at least two legally distinct economic entities. Unilateral conduct on the part of a single person or enterprise falls outside the purview of this provision in the antitrust law. See Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984); Belfiore v. New York Times Co., 826 F.2d 177, 181-82 (2d Cir.1987), cert. denied, 484 U.S. 1067, 108 S.Ct. 1030, 98 L.Ed.2d 994 (1988). For that reason, an agreement between a parent corporation and its wholly-owned subsidiary or its agents is not a concerted action for purposes of the Act. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S.Ct. 2731, 2741-42, 81 L.Ed.2d 628 (1984). If a § 1 plaintiff establishes the existence of an illegal contract or combination, it must then proceed to demonstrate that the agreement constituted an unreasonable restraint of trade either per se or under the rule of reason. Conduct considered illegal per se is invoked only in a limited class of cases, see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2551, 53 L.Ed.2d 568 (1977), where a defendant’s actions are so plainly harmful to competition and so obviously lacking in any redeeming pro-competitive values that they are “conclusively presumed illegal without further examination.” Broadcast Music, Inc. v. CBS, 441 U.S. 1, 8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979). Per se violations include, for example, horizontal and vertical price-fixing, see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 841, 84 L.Ed. 1129 (1940); Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 405, 31 S.Ct. 376, 383, 55 L.Ed. 502 (1911); division of a market into territories, see United States v. Topco Assocs., 405 U.S. 596, 609, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972); certain tying arrangements, see Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984); and some group boycotts" }, { "docid": "21565577", "title": "", "text": "of their own monuments. Plaintiff alleges that these practices and the other alleged practices “bear no reasonable relation to the operation and maintenance of a cemetery.” Id. at 17. Under these circumstances, we cannot say beyond doubt that plaintiff can prove no set of facts that would support the claim that defendant cemeteries entered into a “contract, combination or conspiracy” to engage in these practices. We thus turn to whether the allegations listed, reviewed under the same standards, support a claim that the practices alleged constitute an illegal conspiracy in restraint of trade under section 1. The trial court read the complaint as describing only a tying arrangement. A tying arrangement arises when a seller requires the purchaser of one product (the tying product) to also purchase another, distinct product (the tied product). “[Certain tying arrangements pose an unacceptable risk of stifling competition and therefore are unreasonable ‘per se.’ ” Jefferson Parish Hosp. v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984). A tying arrangement is presumed illegal if it meets three criteria: “First, purchases of the tying product must be conditioned upon purchases of a distinct tied product. Second, a seller must possess sufficient power in the tying market to compel acceptance of the tied product. Such power exists where market share is high, or where a seller offers a unique or otherwise desirable product which competitors cannot economically offer themselves. Finally, a tying arrangement must foreclose to competitors of the tied product a ‘not insubstantial’ volume of commerce.” Fox Motors, Inc. v. Mazda Distrib. (Gulf) Inc., 806 F.2d 953, 957 (10th Cir.1986) (citations omitted). The risk posed by such arrangements is that the tied product will be purchased not on its competitive merits but because of its relationship to the tying product, thus depriving consumers of a competitive choice and unfairly disadvantaging competitors in the market for the tied product. See Jefferson Parish Hosp., 466 U.S. at 12, 104 S.Ct. at 1558. The trial court held that Monument Builders failed to allege sufficient market power to support a claim that cemeteries could force" }, { "docid": "5937043", "title": "", "text": "a proportion of the product market which is ‘largely segregated from, independent of, or not affected by’ competition elsewhere.” Id. Therefore, it is.not required that an area encompass a large percentage of all business activity in the relevant product market to be considered economically significant. An area containing only a small percentage of business activity may qualify as being economically significant if the relevant competition in that specific area is insulated from equivalent competition elsewhere. C. Foreclosure of Competition After the relevant market has been identified, it must then be determined whether the arrangement foreclosed competition in a substantial share of the established market. Tampa Elec. Co., 365 U.S. at 327-28, 81 S.Ct. 623. II. Sherman Act Section 1 of the Sherman Act provides that “[e]very 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 hereby declared to be illegal.” 15 U.S.C. § 1 (1997). In order to demonstrate a claim of unreasonable restraint of trade under Section 1, Apani must establish that: (1) the City and CCE engaged in a conspiracy, (2) the conspiracy had the effect of restraining trade, and (3) trade was restrained in the relevant market. Spectators’ Comm. Network Inc. v. Colonial Country Club, 253 F.3d 215, 220 (5th Cir.2001); Johnson v. Hosp. Corp. of Am., 95 F.3d 383, 392 (5th Cir.1996). Apani, as the plaintiff, has the burden of proving all the elements of a Section 1 violation. Id. (citing Jefferson Parish Hosp. Dist. No. 2, v. Hyde, 466 U.S. 2, 29, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984)). As an initial matter, Apani does not contend on appeal that CCE’s actions were per se illegal. Thus, the rule of reason analysis is applicable to Apani’s claim. Doctor’s Hosp. of Jefferson, Inc. v. Southeast Med. Alliance, Inc., 123 F.3d 301, 307 (5th Cir.1997). Under this rule, Apani must demonstrate that the “complained-of actions unreasonably restrained trade.” Id. The court must then balance the “anti-competitive evils of a restrictive practice ... against any proeompetitive benefits or justifications within the" }, { "docid": "18789419", "title": "", "text": "present a record sufficient to support a reasonable finding in his favor, a district court has a duty to grant the motion for summary judgment.” Filco v. Amana Refrigeration, Inc., 709 F.2d 1257,1260 (9th Cir.), cert. dismissed, 464 U.S. 956,104 S.Ct. 385, 78 L.Ed.2d 331 (1983). Section 1 of the Sherman Act, 15 U.S.C. § 1 (1982), prohibits every “contract, combination ... or conspiracy” in restraint of interstate trade or commerce. Independent activity does not violate section 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984). Only unreasonable or undue restraints are prohibited. Standard Oil of New Jersey v. United States, 221 U.S. 1, 58-60, 31 S.Ct. 502, 515-16, 55 L.Ed. 619 (1911). In Standard Oil, the Court applied a rule of reason in examining conduct of parties to determine section 1 violations. Id. at 60, 31 S.Ct. at 515. Unreasonableness is based on the nature of the contract or on the surrounding circumstances that give rise to an inference the parties intended to restrain trade or enhance prices. National Society of Professional Engineers v. United States, 435 U.S. 679, 690, 98 S.Ct. 1355, 1364, 55 L.Ed.2d 637 (1978) (footnote omitted). Certain restraints are so clearly anticompetitive they have been held to be unlawful per se. See, e.g., United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 218, 60 S.Ct. 811, 841, 84 L.Ed. 1129 (1940) (price-fixing). Per se unlawful activities include “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 Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). A. Per Se Violation. Although unilateral action by a manufacturer in terminating a distributor is not usually subject to per se analysis, such action when taken in response to a competing distributor’s complaint and with intent to restrain price competition may be a per" }, { "docid": "9406566", "title": "", "text": "Electrical Contractors Association, Inc., 814 F.2d 358, 368 (7th Cir.1987); Fishman v. Estate of Wirtz, 807 F.2d 520, 536 (7th Cir.1986); Morrison v. Murray Biscuit Co., 797 F.2d 1430, 1437 (7th Cir.1986). This court must interpret and apply the Sherman and Clayton Acts with this fundamental principle in mind. 1. Sherman Act Section 1 Violations Section 1 of the Sherman Act provides that \"every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among several States, or with foreign nations ... shall be illegal.” 15 U.S.C. § 1. In the landmark case of Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911), the Supreme Court clarified that Section 1 prohibits only unreasonable contracts, combinations and conspiracies in restraint of trade. Section 1 prohibits only unreasonable cooperative efforts because a certain type and amount of cooperation may be necessary for efficient production of goods and provision of services. Premier Electrical, at 370; Polk Bros., Inc. v. Forest City Enterprises, Inc., 776 F.2d 185, 188 (7th Cir.1985). Over the years, courts have found certain types of contractual arrangements unreasonable as a matter of law, because they pose an unacceptable risk of stifling competition. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984). Courts presume that these “per se” illegal arrangements are unreasonable without inquiring as to whether the arrangement has had an anticompetitive effect in the relevant market. Jefferson Parish, 466 U.S. at 15-16, 104 S.Ct. at 1560; Brillhart v. Mutual Medical Insurance Co., 768 F.2d 196, 199 n. 2 (7th Cir.1985); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Anti-competitive effect is still a requirement in these cases; however, courts conclusively presume anticompetitive effect because the type of conduct complained of is obviously destructive of free competition. LektroVend Corp. v. Vendo Co., 660 F.2d 255, 265 n. 11 (7th Cir.1981), cert. denied, 455 U.S. 921," } ]

[ { "docid": "17919953", "title": "", "text": "90, 94-95, cert. denied sub nom. First Camden Nat’l Bank & Trust Co. v. Lapinsohn, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968). The Supreme Court granted certiorari in Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977), to resolve the inconsistencies among the state courts. Id. at 37, 98 S.Ct. at 90. Considering the legislative history of § 94, the Court stressed that Congress could not have contemplated the modem system of banking, with its widespread branch offices, when it enacted the National Bank Act of 1864. Id. at 43, 98 S.Ct. at 93. Whereas “established” and “located” would have led to the same venue result in those early days, the Court recognized the distinction between the terms as they pertained to the modem system. Id. at 44, 98 S.Ct. at 93-94. Accordingly, the Court held that state-court venue was proper where the bank maintained an authorized branch, i.e., where the bank was “located.” Id.; see also First Nat’l Bank v. District Court, El Paso County, Colorado, 653 P.2d 1123, 1125 (Colo.1982); At torney Gen. v. Industrial Nat’l Bank, 380 Mass. 533, 534, 404 N.E.2d 1215, 1217 (1980). In Bougas the Supreme Court noted the appearance of the word “located” in two other federal statutes pertaining to national banking associations, one being § 1348. 434 U.S. at 36 n. 1, 98 S.Ct. at 89 n. 1. This suggests that if the Supreme Court were constructing the word “located” as used in § 1348, it would probably find that a national banking association is “located” for diversity jurisdiction purposes in those states where it maintains its branch offices. There are several considerations that support this premise. First, prior to its revision in 1982, § 94 precluded a plaintiff from joining two or more defendant banks in federal court if the banks maintained their principal places of business in different districts. The Supreme Court recognized this dilemma as early as 1962 but stated that the matter should be left to Congress. Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 563, 83" } ]

[ { "docid": "14791183", "title": "", "text": "time they were functionally synonymous because national banks had no branches. See Bougas, 434 U.S. at 42-43, 98 S.Ct. 88. The meaning of the words should reflect the doctrine they effect. In the former venue provision, the words were considered in light of the convenience of the parties. See id. at 44 & n. 10, 98 S.Ct. 88. In the context of diversity jurisdiction, the words should reflect the congressional goal of jurisdictional parity with state banks and corporations. See supra, Part II.B. That goal is not furthered by limiting federal jurisdiction as to national banks where state banks under similar conditions would have access to the federal courts on the basis of diversity jurisdiction. Third, the suggested distinction is troublesome as to venue and jurisdiction in suits by a national bank to enjoin the Comptroller of the Currency. Under § 1348, district courts have original jurisdiction over “any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency....” See 28 U.S.C. § 1348 (emphasis added). Under § 1394, venue over “any civil action by a national banking association to enjoin the Comptroller of the Currency ” is proper “in the judicial district where such association is located.” See 28 U.S.C. § 1394 (emphasis added). If the words must be different, then there must be venue where no jurisdiction exists. I am reluctant to conclude that Congress provided particular jurisdiction in a more limited fashion than it provided particular venue. Finally, if “located” and “established” must have different meanings for purposes of jurisdiction, I note that it was long the rule in federal courts that “established” meant the place of charter and “located” meant the principal place of business. See Bougas, 434 U.S. at 39, 98 S.Ct. 88. That reading follows more closely the jurisdictional prerequisites for state banks than making national banks citizens of each state in which they maintain a branch. 2. The Supreme Court did not intend to define “located” for all statutes. The Iacono court held that the" }, { "docid": "5416808", "title": "", "text": "any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter. All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the states in which they are respectively located. . As the Court observed, § 94 was passed in 1864. At that time, a bank's location and the site of its establishment were one and the same. Branch banks were not yet contemplated. . Also relevant on this point is the fact that § 1348, as first adopted in 1882, was intended to limit NBA's access to federal courts. See Herrmann v. Edwards, 238 U.S. 107, 35 S.Ct. 839, 59 L.Ed. 1224 (1915) (explaining that § 1348's initial precursor was designed to prevent NBAs from using the fact that they are charted under a federal statute as a basis to claim federal question jurisdiction for all cases in which they are involved). . In addition, I note that had Congress intended to limit the citizenship of NBAs to the states of their principal places of business, it could easily have incorporated into § 1348 the language of § 1332(c)(1), which adopts that standard for determining the citizenship of corporations generally. . 12 U.S.C. § 36 defines a “branch” as any branch bank, branch office, branch agency, additional office, or any branch place of business located in any State or Territory of the United States or in the District of Columbia at which deposits are received, or checks paid, or money lent. . The Court recognizes that the question of where an NBA can be deemed a citizen under § 1348 is different from the question of where it is subject to personal jurisdiction. Nevertheless, because the purpose of evaluating an NBA's citizenship is to determine the existence of diversity" }, { "docid": "17919955", "title": "", "text": "S.Ct. 520, 525, 9 L.Ed.2d 523 (1963). Congress subsequently revised § 94 as follows: Any action or proceeding against a national banking association for which the Federal Deposit Insurance Corporation has been appointed receiver, or against the Federal Deposit Insurance Corporation as receiver of such association, shall be brought in the district or territorial court of the United States held within the district in which that association’s principal place of business is located, or, in the event any State, county, or municipal court has jurisdiction over such an action or proceeding, in such court in the county or city in which that association’s principal place of business is located. 12 U.S.C. § 94 (1988) (emphasis added). Section 94 now specifies that venue is proper only where the “association’s principal place of business is located.” Congress clearly intended to limit venue in this situation without raising any doubt as to where a national bank is “located.” Section 1348, on the other hand, uses the word “located” without specifying that only the national bank’s principal place of business shall be taken into account. This indicates that in enacting § 1348 Congress did not intend to limit the citizenship of a national banking association to only the state in which a bank maintains its principal place of business. If Congress had intended such a result, it would have appended “principal place of business” to “located” to remove any ambiguity, as in § 94. Second, § 1348 uses the word “established” in its first paragraph and “located” in its second. As the Supreme Court recognized in Bougas, there is a distinction between the two terms. 434 U.S. at 44, 98 S.Ct. at 93-94. By using each term in a separate provision within one statute, Congress clearly intended to designate two different meanings. It has been generally accepted that “established” means the place where the bank has its principal place of business. Id. at 39, 98 S.Ct. at 91. By contrast, “located” in its most ordinary sense refers to those places where the bank maintains branch offices. Id. at 44, 98 S.Ct. at 93-94. Finally," }, { "docid": "17919954", "title": "", "text": "Paso County, Colorado, 653 P.2d 1123, 1125 (Colo.1982); At torney Gen. v. Industrial Nat’l Bank, 380 Mass. 533, 534, 404 N.E.2d 1215, 1217 (1980). In Bougas the Supreme Court noted the appearance of the word “located” in two other federal statutes pertaining to national banking associations, one being § 1348. 434 U.S. at 36 n. 1, 98 S.Ct. at 89 n. 1. This suggests that if the Supreme Court were constructing the word “located” as used in § 1348, it would probably find that a national banking association is “located” for diversity jurisdiction purposes in those states where it maintains its branch offices. There are several considerations that support this premise. First, prior to its revision in 1982, § 94 precluded a plaintiff from joining two or more defendant banks in federal court if the banks maintained their principal places of business in different districts. The Supreme Court recognized this dilemma as early as 1962 but stated that the matter should be left to Congress. Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 563, 83 S.Ct. 520, 525, 9 L.Ed.2d 523 (1963). Congress subsequently revised § 94 as follows: Any action or proceeding against a national banking association for which the Federal Deposit Insurance Corporation has been appointed receiver, or against the Federal Deposit Insurance Corporation as receiver of such association, shall be brought in the district or territorial court of the United States held within the district in which that association’s principal place of business is located, or, in the event any State, county, or municipal court has jurisdiction over such an action or proceeding, in such court in the county or city in which that association’s principal place of business is located. 12 U.S.C. § 94 (1988) (emphasis added). Section 94 now specifies that venue is proper only where the “association’s principal place of business is located.” Congress clearly intended to limit venue in this situation without raising any doubt as to where a national bank is “located.” Section 1348, on the other hand, uses the word “located” without specifying that only the national bank’s principal place of" }, { "docid": "5416791", "title": "", "text": "estopped from contending the opposite to secure jurisdiction. However, the Court is unable to say on the record as it stands that either of those eases is this ease. First of all, as the complaint in this action makes clear, both BOA and BNY were consistently involved in the disputed transaction. Complaint ¶¶ 6, 11, 12, 14, 15, 17, 19 and Exhibits A-C. While the level of their involvement is not perfectly clear, it appears that it at least rises above that of the citizen parties in L’Europeenne de Banque, supra, cited by plaintiffs, where the Court found that the citizen parties had never dealt directly with the alien parties and had been named because they possessed assets against which plaintiffs hoped to execute a judgment. With respect to previous positions taken by defendants, despite plaintiffs’ insistence to the contrary, there is nothing in defendants’ briefs or affidavits which can be taken as a clear statement that BOA and BNY were not substantially involved in the disputed transaction or have no interests at stake in this action. Accordingly, plaintiffs’ second argument against diversity fails. Plaintiffs’ final argument is that there is not complete diversity because BOA and BNY may both be considered citizens of New York. BNY, as a New York corporation with its principal place of business in New York, is clearly a citizen of New York. 28 U.S.C. § 1332(c)(1). BOA is a national banking association, with its principal place of business in' San Francisco, California. Under 28 U.S.C. § 1348, it is a citizen of the States in which it is located. Plaintiffs argue that because BOA maintains a building and an office in New York, it is located in, and is a citizen of, New York. Of course, if this is true, there is no diversity. Defendants argue that, under § 1348, a national banking association is only “located” where it maintains its principal place of business (and is thus only a citizen of that state). Under the loosest reading of the statute, they say, BOA may not be labeled a citizen of every state in" }, { "docid": "5416792", "title": "", "text": "this action. Accordingly, plaintiffs’ second argument against diversity fails. Plaintiffs’ final argument is that there is not complete diversity because BOA and BNY may both be considered citizens of New York. BNY, as a New York corporation with its principal place of business in New York, is clearly a citizen of New York. 28 U.S.C. § 1332(c)(1). BOA is a national banking association, with its principal place of business in' San Francisco, California. Under 28 U.S.C. § 1348, it is a citizen of the States in which it is located. Plaintiffs argue that because BOA maintains a building and an office in New York, it is located in, and is a citizen of, New York. Of course, if this is true, there is no diversity. Defendants argue that, under § 1348, a national banking association is only “located” where it maintains its principal place of business (and is thus only a citizen of that state). Under the loosest reading of the statute, they say, BOA may not be labeled a citizen of every state in which it maintains offices but only of those states in which it maintains branch banks. Research does not disclose any case above the district court level in which a court has construed the meaning of “located” in § 1348. The leading ease on the issue appears to be Connecticut Nat. Bank v. Iacono, 785 F.Supp. 30 (D.R.I.1992), in which the Court, relying on Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977), held that under § 1348, a national banking association is located in, and therefore a citizen of, every state in which it maintained branch banks. In Bougas, the Supreme Court considered the meaning of “located” as used in 12 U.S.C. § 94, which prescribes venue for suits against national banking associations (“NBA”). Section 94, at the time, provided that a federal court action against an NBA had to be brought in the judicial district where the NBA was “established” and a state court action against a NBA had to be brought in the county or" }, { "docid": "5416795", "title": "", "text": "federal banking statutes, - including § 1348, suggesting that the Court may have viewed its construction as valid for all three statutes. Second, like § 94, § 1348 also contains the word “established” in one paragraph' and the word “located” in another. This calls to mind the Supreme Court’s admonition that there is a difference between those words and counsels against reading them as synonymous. Third, expanding the citizenship of NBAs to include the locations of their branch offices is consistent with the modern trend of construing the diversity jurisdiction narrowly so as to relieve the congestion of the federal courts. Finally, and perhaps most importantly, subsequent to Bou gas, Congress amended § 94 to specify that venue in actions against NBAs lies in the district, county, or city “in which [the NBA’s] principal place of business is located.” 12 U.S.C. § 94 (emphasis added). Clearly, this indicates that Congress appreciated the Bougas holding and knew how to supplant it. The fact that Congress did not similarly amend § 1348 suggests that it was prepared to accept the Bougas construction of “located” for § 1348, particularly in view of the fact that Bougas expressly referenced that statute. Iacono, 785 F.Supp. at 33-34. All of these things persuade me that Iacono was correct in relying on Bougas to hold that under § 1348 an NBA is a citizen of all states in which it has branches. Defendants contend that even if the Court reads § 1348 to make BOA a citizen of all states in which it has branches, the Court should not extend the statute further to make it a citizen of all states in which it maintains offices. The significance of the distinction here is that while BOA maintains an office in New York, it does not maintain a branch. Accordingly, if defendants’ contention is sustained, it is not a citizen of New York and complete diversity exists. The Court cannot sustain defendants’ argument because it can perceive no distinction between branches and offices relevant to determining the citizenship of an NBA under § 1348. Defendants offer no authority" }, { "docid": "5416794", "title": "", "text": "city where the NBA was “located.” Recognizing that “established” and “located” were not synonymous, the Court endeavored to find “the reason behind' the distinction in the words.” 434 U.S. at 44, 98 S.Ct. at 93. The Court ultimately concluded that Congress’ intention in restricting state court suits against NBAs to the city or county in which they were located was to avoid the “untoward interruption of an [NBA’s] business that might result from compelled production of bank records for distant litigation.” Id. The Court then reasoned that allowing banks to be sued where they maintained branch offices did not implicate this concern, particularly in view of modern methods of data processing and transportation. Accordingly, it held under § 94 that an NBA was “located” wherever it maintained a branch. In lacono, the Court offered several reasons in support of applying the Supreme Court’s construction of the word “located” in the former § 94, to the word “located” in § 1348. First of all, in Bougas, the Court expressly noted that “located” appeared in two other federal banking statutes, - including § 1348, suggesting that the Court may have viewed its construction as valid for all three statutes. Second, like § 94, § 1348 also contains the word “established” in one paragraph' and the word “located” in another. This calls to mind the Supreme Court’s admonition that there is a difference between those words and counsels against reading them as synonymous. Third, expanding the citizenship of NBAs to include the locations of their branch offices is consistent with the modern trend of construing the diversity jurisdiction narrowly so as to relieve the congestion of the federal courts. Finally, and perhaps most importantly, subsequent to Bou gas, Congress amended § 94 to specify that venue in actions against NBAs lies in the district, county, or city “in which [the NBA’s] principal place of business is located.” 12 U.S.C. § 94 (emphasis added). Clearly, this indicates that Congress appreciated the Bougas holding and knew how to supplant it. The fact that Congress did not similarly amend § 1348 suggests that it was prepared" }, { "docid": "8464106", "title": "", "text": "Nat’l Bank v. Cooper, 120 U.S. 778, 780, 7 S.Ct. 777, 30 L.Ed. 816 (1887). The 1882 Act was later superseded by the Act of March 3, 1887, § 4, 24 Stat. 552, 554-55, which proclaimed: [A]ll national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State. The language of the 1887 Act, which first included the phrase making national banks “citizens of the States in which they are respectively located” that appears in 28 U.S.C. § 1348, has been consistently interpreted by the Supreme Court to maintain jurisdictional parity between national banks and state banks or other corporations. See Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 565-66, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963) (“Section 4 [of the 1882 and 1887 Acts] apparently sought to limit, with exceptions, the access of national banks to, and their suability in, the federal courts to the same extent to which non-national banks are so limited.”); Petri, 142 U.S. at 650-51, 12 S.Ct. 325 (“No reason is perceived why it should be held that Congress intended that national banks should not resort to Federal tribunals as other corporations and individual citizens might.”). Firstar and the Comptroller argue that this operative phrase should be given the same meaning in the current statute. National banks should be treated like state banks or any other corporation under 28 U.S.C. § 1332. Faul has two primary justifications for the position that a national bank is located in every state where it has a branch. The first is that Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977) held that a bank was “located” wherever it had a branch for purposes of a prior version of the" }, { "docid": "14791184", "title": "", "text": "the Currency....” See 28 U.S.C. § 1348 (emphasis added). Under § 1394, venue over “any civil action by a national banking association to enjoin the Comptroller of the Currency ” is proper “in the judicial district where such association is located.” See 28 U.S.C. § 1394 (emphasis added). If the words must be different, then there must be venue where no jurisdiction exists. I am reluctant to conclude that Congress provided particular jurisdiction in a more limited fashion than it provided particular venue. Finally, if “located” and “established” must have different meanings for purposes of jurisdiction, I note that it was long the rule in federal courts that “established” meant the place of charter and “located” meant the principal place of business. See Bougas, 434 U.S. at 39, 98 S.Ct. 88. That reading follows more closely the jurisdictional prerequisites for state banks than making national banks citizens of each state in which they maintain a branch. 2. The Supreme Court did not intend to define “located” for all statutes. The Iacono court held that the Supreme Court footnote stating that “located” was used in the jurisdictional provision and in a special venue provision suggested that its interpretation would be relevant to all three statutes. See Iacono, 785 F.Supp. at 33. I do not read Bougas so broadly. First, the Court explicitly limited its inquiry to where a national bank “is ‘located,’ within the meaning of § 9k, for purposes of a transitory action brought in a state court, when it conducts banking business at an authorized branch outside its charter county?” Bougas, 434 U.S. at 37-38, 98 S.Ct. 88 (emphasis added). See also id. at 35, 98 S.Ct. 88 (presenting issue of state-court venue); id. at 44 n. 10, 98 S.Ct. 88 (explaining interpretation of § 94 venue). In fact, the Court repeatedly declined to speak to arguably relevant and conflicting portions of the venue statute. For example, the Court recognized potential inconsistencies between its holding and the provision for federal venue, but was “not concerned” with the “federal aspect of venue” and had “no occasion” to consider that part" }, { "docid": "5416793", "title": "", "text": "which it maintains offices but only of those states in which it maintains branch banks. Research does not disclose any case above the district court level in which a court has construed the meaning of “located” in § 1348. The leading ease on the issue appears to be Connecticut Nat. Bank v. Iacono, 785 F.Supp. 30 (D.R.I.1992), in which the Court, relying on Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977), held that under § 1348, a national banking association is located in, and therefore a citizen of, every state in which it maintained branch banks. In Bougas, the Supreme Court considered the meaning of “located” as used in 12 U.S.C. § 94, which prescribes venue for suits against national banking associations (“NBA”). Section 94, at the time, provided that a federal court action against an NBA had to be brought in the judicial district where the NBA was “established” and a state court action against a NBA had to be brought in the county or city where the NBA was “located.” Recognizing that “established” and “located” were not synonymous, the Court endeavored to find “the reason behind' the distinction in the words.” 434 U.S. at 44, 98 S.Ct. at 93. The Court ultimately concluded that Congress’ intention in restricting state court suits against NBAs to the city or county in which they were located was to avoid the “untoward interruption of an [NBA’s] business that might result from compelled production of bank records for distant litigation.” Id. The Court then reasoned that allowing banks to be sued where they maintained branch offices did not implicate this concern, particularly in view of modern methods of data processing and transportation. Accordingly, it held under § 94 that an NBA was “located” wherever it maintained a branch. In lacono, the Court offered several reasons in support of applying the Supreme Court’s construction of the word “located” in the former § 94, to the word “located” in § 1348. First of all, in Bougas, the Court expressly noted that “located” appeared in two other" }, { "docid": "14791179", "title": "", "text": "at 44 & n. 10, 98 S.Ct. 88. In light of modern developments in communication and transportation, the Court held that it would be consistent with the congressional purpose to subject national banks to venue in locations where they maintained branches. See id. at 44, 98 S.Ct. 88. Five years later, Congress amended the venue provision to provide venue in suits by or against national banks under the general provisions of § 1391, unless against the Comptroller of the Currency. See Depository Inst. Act of 1982, Pub.L. 97-320, reprinted, in 1982 U.S.C.C.A.N. 3054, 3082, 96 Stat. 1469. National banks now have federal venue like any other corporation. B. The Rhode Island District Court Read “Located” in § 1348 Based on The Supreme Court Interpretation of “Located” in Former Venue § 94. In 1992, the District Court for the District of Rhode Island confronted the question whether a national bank was a citizen of each state in which it maintained a branch. See Connecticut Nat’l Bank v. Iacono, 785 F.Supp. 30, 31 (D.R.I.1992). The court acknowledged the prior rule that a national bank was a citizen of the state in which it maintained its principal place of business. See id. at 31-32. Nonetheless, the court declined to follow this precedent and held that a national bank was a citizen of every state in which it maintained a branch. See id. at 34. The court relied heavily upon the Supreme Court decision in Bougas. First, the Iacono court noted that the Supreme Court had defined “located” with the understanding that the same word was used in two other provisions of the National Bank Act. See id. at 33. The court reasoned that the Supreme Court interpretation probably would be determinative in those other statutes as well. See id. Second, the court noted that § 1348 provided jurisdiction in different cases depending on where the national bank was “established” as opposed to “located.” See id. The court sought to recognize the distinction between the two terms. See id. Third, the court determined that congressional amendment of the venue statute demonstrated that Congress knew" }, { "docid": "14791177", "title": "", "text": "a national bank is a citizen of every state in which it maintains branches or a substantial presence. See supra, note 5. But see Berkowitz v. Midlantic Corp., 1997 WL 452206, *4 (holding that a national bank is a citizen only of the state of its principal place of business). This movement is attributable to a decision of the District Court for the District of Rhode Island. That decision was dependent, in turn, on a Supreme Court decision construing a now-repealed venue provision. The two will be explained briefly. I will then address the arguments on which other district courts have relied. A. The Supreme Court Held that “Located” in a Venue Provision Included Branch Locations. In 1977, in Citizens & S. Nat’l Bank v. Bougas, the Supreme Court considered the question whether, in a suit against a national bank, venue in state court was proper only in the county in which it maintained its principal place of business or also in another county where the national bank maintained a branch. See 434 U.S. 35, 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977). The Court noted first that the word “located” appeared in two other National Bank Act statutes. See id. at 35 n. 1, 98 S.Ct. 88 (citing the jurisdictional provision, § 1348, and a special venue provision governing actions to enjoin the Comptroller of the Currency, § 1394). The Court noted then that “located” had no unalterable meaning within the law of venue. See id. at 44, 98 S.Ct. 88; see also id. at 39-41, 98 S.Ct. 88 (explaining alternative interpretations). The Court did note that federal venue was proper where the national bank was “established,” while state court venue depended upon where the national bank was “located.” See id. at 44, 98 S.Ct. 88. Without endorsing a precise difference, the Court said that it was obligated to construe the words differently if possible. See id. The Court then considered that congressional enactment of the venue provision was due to concerns about potential inconvenience and unfairness in having a national bank litigate in a distant forum. See id." }, { "docid": "5416796", "title": "", "text": "to accept the Bougas construction of “located” for § 1348, particularly in view of the fact that Bougas expressly referenced that statute. Iacono, 785 F.Supp. at 33-34. All of these things persuade me that Iacono was correct in relying on Bougas to hold that under § 1348 an NBA is a citizen of all states in which it has branches. Defendants contend that even if the Court reads § 1348 to make BOA a citizen of all states in which it has branches, the Court should not extend the statute further to make it a citizen of all states in which it maintains offices. The significance of the distinction here is that while BOA maintains an office in New York, it does not maintain a branch. Accordingly, if defendants’ contention is sustained, it is not a citizen of New York and complete diversity exists. The Court cannot sustain defendants’ argument because it can perceive no distinction between branches and offices relevant to determining the citizenship of an NBA under § 1348. Defendants offer no authority or rationale to support the conclusion that Congress intended NBAs to be “located” only in places where they maintain offices “at which deposits are received, or checks paid, or money lent.” 12 U.S.C. § 36. The more natural reading of “located” is that it includes any place where an NBA maintains a substantial presence. This reading comports with traditional notions of jurisdiction as tied to presence within the forum. See International Shoe v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Additionally, this construction is consistent with the general policy of narrowing diversity jurisdiction and the specific purpose of § 1348 to restrict NBAs’ access to federal courts. See, infra, p. 11-12. It is true that Bougas and Iacono both hold that, other than the site of its principal place of business, an NBA is located where it maintains branches. This, however, is most likely a result of the circumstance that the courts in those cases were presented with facts in which the NBA office claimed to support citizenship was" }, { "docid": "5416797", "title": "", "text": "or rationale to support the conclusion that Congress intended NBAs to be “located” only in places where they maintain offices “at which deposits are received, or checks paid, or money lent.” 12 U.S.C. § 36. The more natural reading of “located” is that it includes any place where an NBA maintains a substantial presence. This reading comports with traditional notions of jurisdiction as tied to presence within the forum. See International Shoe v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Additionally, this construction is consistent with the general policy of narrowing diversity jurisdiction and the specific purpose of § 1348 to restrict NBAs’ access to federal courts. See, infra, p. 11-12. It is true that Bougas and Iacono both hold that, other than the site of its principal place of business, an NBA is located where it maintains branches. This, however, is most likely a result of the circumstance that the courts in those cases were presented with facts in which the NBA office claimed to support citizenship was a branch. Neither court indicated that any particular characteristic unique to a branch, as distinguished from any other form of bank office, was important to its holding. If substantial presence is to be the test for citizenship, certainly BOA meets it with regard to New York. I need go no further than to observe that BOA maintains offices on Madison Avenue, in an office tower bearing its own name, to demonstrate that BOA’s presence here is indeed significant. BOA must therefore be deemed a citizen of New York under § 1348, and because BNY is also a citizen of New York, diversity jurisdiction is defeated. 2. International Banking Jurisdiction As an alternative basis of jurisdiction, defendants allege 12 U.S.C. § 632, which provides for original federal jurisdiction over all suits of a civil nature at common law or in equity to which any corporation organized under the laws of the United States shall be a party, arising out of transactions involving international or foreign banking ... or out of other international or foreign financial operations," }, { "docid": "8464107", "title": "", "text": "L.Ed.2d 523 (1963) (“Section 4 [of the 1882 and 1887 Acts] apparently sought to limit, with exceptions, the access of national banks to, and their suability in, the federal courts to the same extent to which non-national banks are so limited.”); Petri, 142 U.S. at 650-51, 12 S.Ct. 325 (“No reason is perceived why it should be held that Congress intended that national banks should not resort to Federal tribunals as other corporations and individual citizens might.”). Firstar and the Comptroller argue that this operative phrase should be given the same meaning in the current statute. National banks should be treated like state banks or any other corporation under 28 U.S.C. § 1332. Faul has two primary justifications for the position that a national bank is located in every state where it has a branch. The first is that Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977) held that a bank was “located” wherever it had a branch for purposes of a prior version of the venue statute for national banks, 12 U.S.C. § 94 (amended 1982). This holding of Bougas should be used to interpret “located” in 28 U.S.C. § 1848. Furthermore, Bougas itself cited 28 U.S.C. § 1348 as an example of a federal banking statute using the word “located,” 434 U.S. at 36 n. 1, 98 S.Ct. 88, strongly suggesting that the Court intended for its definition to apply to jurisdictional matters. The second argument is that “located” should be given a meaning distinct from “established,” which is used in the first paragraph of 28 U.S.C. § 1348. “Established” appears to refer to a single district. Thus, a bank should be considered to be “established” in the single state where its principal of business is found. See Iacono, 785 F.Supp. at 33. In order to give “located” a different meaning, it must refer to any state where a branch is. We move from the parties’ arguments to our own analysis. As in all statutory construction cases, we begin with the statutory language to determine if it provides a" }, { "docid": "14791180", "title": "", "text": "the prior rule that a national bank was a citizen of the state in which it maintained its principal place of business. See id. at 31-32. Nonetheless, the court declined to follow this precedent and held that a national bank was a citizen of every state in which it maintained a branch. See id. at 34. The court relied heavily upon the Supreme Court decision in Bougas. First, the Iacono court noted that the Supreme Court had defined “located” with the understanding that the same word was used in two other provisions of the National Bank Act. See id. at 33. The court reasoned that the Supreme Court interpretation probably would be determinative in those other statutes as well. See id. Second, the court noted that § 1348 provided jurisdiction in different cases depending on where the national bank was “established” as opposed to “located.” See id. The court sought to recognize the distinction between the two terms. See id. Third, the court determined that congressional amendment of the venue statute demonstrated that Congress knew how to supplant a judicial understanding of “located.” See id. The court determined that the congressional decision not to amend the jurisdictional statute revealed its acceptance of the Supreme Court’s construction of “located” as including states in which branch banks were maintained. See id. Finally, the court observed that there is a preference for limiting diversity jurisdiction generally, and that a broader reading of citizenship therefore ought to be preferred. See id. at 33-34. In a similar vein, subsequent decisions have adopted the foregoing analysis and, in addition, have argued that the original purpose of § 1348 was to restrict federal court jurisdiction, by eliminating automatic federal question jurisdiction. See Bank of N.Y. v. Bank of Amer., 861 F.Supp. 225, 231 & n. 9 (S.D.N.Y.1994). Respectfully, I disagree and will treat the arguments in turn. 1. The difference between “located” and “established” is not disposi-tive. In Bougas, the Supreme Court assumed without holding that “established” meant the place of a national bank’s charter. See Bougas, 434 U.S. at 39, 44, 98 S.Ct. 88. It held" }, { "docid": "10467451", "title": "", "text": "ORDER OF DISMISSAL KANE, District Judge. This is an action on two promissory notes executed by Defendant Pepper Patterson and assigned by the Citizens National Bank of Limón, Colorado to Norwest Bank Minnesota, N.A. (“Norwest”). Norwest invokes the jurisdiction of this court under 28 U.S.C; § 1332(e) based on diversity of citizenship, claiming it is a Delaware corporation with its principal place of business in Minnesota, while Defendant Patton is a citizen of Colorado. Norwest’s contention is wrong as a matter of law. Section 1348 of the same Title provides that “[a]ll national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the states in which they are respectively located.” Under § 1348, a national banking association is located in, and therefore a citizen of, every state in which it maintains a substantial presence, such as branch banks. See Connecticut Nat’l Bank v. Iacono, 785 F.Supp. 30 (D.R.I.1992) (applying National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977) (construing “located” as that term applies to national banking associations under 12 U.S.C. § 94)). See also Bank of New York v. Bank of America, 861 F.Supp. 225, 230 (S.D.N.Y.1994). • This is consistent with the modern trend of construing diversity jurisdiction narrowly to relieve congestion in the federal courts as well as the specific purpose of § 1348 to restrict national banking associations’ access to federal courts. See Bank of New York at 231 & n. 9. The promissory notes in the present case were executed in Colorado by a Colorado citizen in exchange for a loan from a Colorado bank. The notes were assigned to Norwest, a national banking association with a substantial presence and numerous branch offices in Colorado. The collateral over which the dispute arises includes calves, bulls, horses, and a tractor all located in Colorado. Colorado law governs the dispute between the parties. See Colo.Rev.Stat. § 5-l-201(l)(c) (Code applies to loans made and received in Colorado); Compl., Exs. B & C (copies of notes at issue showing Colorado Uniform Consumer Credit Code applies" }, { "docid": "5416809", "title": "", "text": "from using the fact that they are charted under a federal statute as a basis to claim federal question jurisdiction for all cases in which they are involved). . In addition, I note that had Congress intended to limit the citizenship of NBAs to the states of their principal places of business, it could easily have incorporated into § 1348 the language of § 1332(c)(1), which adopts that standard for determining the citizenship of corporations generally. . 12 U.S.C. § 36 defines a “branch” as any branch bank, branch office, branch agency, additional office, or any branch place of business located in any State or Territory of the United States or in the District of Columbia at which deposits are received, or checks paid, or money lent. . The Court recognizes that the question of where an NBA can be deemed a citizen under § 1348 is different from the question of where it is subject to personal jurisdiction. Nevertheless, because the purpose of evaluating an NBA's citizenship is to determine the existence of diversity jurisdiction, traditional notions of jurisdiction are relevant. . United Apparel Distribs. v. Chase Manhattan Bank, N.A., No. 80-CV-1155, slip op. (N.D.Ill. Aug. 4, 1980), cited by defendants for its holding that a bank is not located in a state unless it maintains a branch there, simply assumed the holding of Bougas to be that banks are only located where they have branches and did not offer any analysis as to why this should be so. . Because BOA is organized under the laws of the United States, there is no dispute that the first element is satisfied. . Because defendants are using § 632 as a basis of removal, it is relevant to note that removal statutes are also construed narrowly, with doubts resolved against removability. See Contitrade Services Corporation v. Eddie Bauer Inc., 794 F.Supp. 514, 516 (S.D.N.Y.1992). . E.g., All Service Exportacao v. Banco Bamerindus, 921 F.2d 32 (2d Cir.1990); First Nat. Bank of Boston v. Banco Nacional de Cuba, 658 F.2d 895 (2d Cir.1981); Bank of Canton, Ltd. v. Republic Nat. Bank" }, { "docid": "17919956", "title": "", "text": "business shall be taken into account. This indicates that in enacting § 1348 Congress did not intend to limit the citizenship of a national banking association to only the state in which a bank maintains its principal place of business. If Congress had intended such a result, it would have appended “principal place of business” to “located” to remove any ambiguity, as in § 94. Second, § 1348 uses the word “established” in its first paragraph and “located” in its second. As the Supreme Court recognized in Bougas, there is a distinction between the two terms. 434 U.S. at 44, 98 S.Ct. at 93-94. By using each term in a separate provision within one statute, Congress clearly intended to designate two different meanings. It has been generally accepted that “established” means the place where the bank has its principal place of business. Id. at 39, 98 S.Ct. at 91. By contrast, “located” in its most ordinary sense refers to those places where the bank maintains branch offices. Id. at 44, 98 S.Ct. at 93-94. Finally, there are practical considerations for holding that a national banking association is “located” where the bank maintains branch offices. Because of the immense press of cases flooding the federal court system, there has been increasing interest in limiting diversity jurisdiction. American Sur. Co., 44 F.Supp. at 83; see also 13B Charles A. Wright et al., Federal Practice and Procedure § 3601, at 352-54 (1984) (discussing five arguments in favor of eliminating diversity jurisdiction). Expanding the citizenship of national banking associations to include the locations of their branch offices serves to relieve some of the congestion in the federal courts. For the foregoing reasons this Court concludes that Congress intended that a national banking association with branch offices in Rhode Island is to be regarded as a citizen of Rhode Island for jurisdictional purposes. Since both plaintiff and defendant Raymond are citizens of Rhode Island, diversity of citizenship does not exist in this matter. Therefore, this case must be dismissed for lack of subject matter jurisdiction. III. CONCLUSION AND ORDER Accordingly, defendant Raymond’s motion to dismiss" } ]

[ { "docid": "4458789", "title": "", "text": "is frivolous. B. Calculation of the Regular Rate First, plaintiffs contend that the district court erred in concluding that (1) Wacker “properly” compensated plaintiffs for their time, i.e., applied the proper overtime rate, and (2) Valhalla does not control. The FLSA requires an employer to compensate its employees for overtime “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1) (emphasis added). Calculating the regular rate entails dividing the remuneration paid by the number of hours worked. See 29 U.S.C. § 207(e). • Wacker excluded the • compensation for the lunch period when calculating the regular rate. In this case, it did not err in doing so. Our holding in Valhalla that an employer must include in the regular rate wages voluntarily paid to employees during meal periods, even if such lunch time is not counted as “hours worked,” is not applicable here. Although the Valhalla court did not mention the controlling regulations, the regulation in effect when Valhalla was decided created a presumption in favor of including regularly received payments for hours not worked in -the regular rate under most circumstances. The 1979 regulation provided: Since, however, [payments for hours not counted as work] are part of the employee’s remuneration for his employment, section 7(e) of the Act requires that the compensation paid for such hours he included in his regular rate of pay, unless it appears from all the pertinent facts that the payments are of a type qualifying for exclusion therefrom under the provisions of section 7(e)(2). 29 C.F.R. § 778.320 (1979). In 1981, two years after we decided Valhalla, 29 C.F.R. § 778.320 was amended so as to provide that payments for meal periods not counted as hours worked should generally be excluded in computing the regular rate of pay when the parties have agreed to exclude such activities from hours worked. Id. Section 778.320(b) now provides: [T]he parties may reasonably agree that the time [spent in certain activities] will not be counted as hours worked. Activities of this type include eating meals between" } ]

[ { "docid": "23297716", "title": "", "text": "(10th Cir.1983). The supervisory Plaintiffs have failed to demonstrate a basis for overturning the jury verdict. E. Liquidated damages and attorneys’ fees Finally, Defendant challenges the trial court’s award of liquidated damages and attorneys’ fees. In light of the foregoing discussion, both of these awards should be revisited by the district court. In assessing Plaintiffs’ claim for liquidated damages, the court should be guided by the “good faith” and “reasonable grounds” test as described in Renfro v. City of Emporia, 948 F.2d 1529, 1540 (10th Cir.1991), cert. dismissed, — U.S. -, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992). Of course, in evaluating any claim for attorneys’ fees the court should follow the procedures required by Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983). III. CONCLUSION We conclude: that the district court did not err in submitting to the jury and instructing the jury on the issue of the establishment of a 28-day work period; that the jury verdict finding that the City did establish a 28-day work period was supported by substantial evidence; that the trial court did not abuse its discretion in denying a read-back of the testimony of two witnesses; that the trial court correctly calculated the rate at which Plaintiffs would be compensated for mealtimes, if adjudged com-pensable; the trial court did not err in submitting to the jury the issue of the compensability of meal periods; that the trial court did err in instructing the jury on the applicable standard for determining the compensability of meal periods; that the jury verdict finding that the supervisory Plaintiffs should not be compensated for time spent in preparation for pre-shift briefings should be affirmed; and, that following further proceedings in this case, the district court should reconsider Plaintiffs’ claims for liquidated damages and attorneys’ fees. Accordingly, we AFFIRM in part, REVERSE in part, VACATE the district court’s award of liquidated damages and attorneys’ fees, and REMAND for further proceedings consistent with this opinion. .Plaintiffs also asserted claims under the Kansas Minimum Wage and Maximum Hours law, Kan.Stat.Ann. § 44-1201 et seq., and under a common-law theory of implied contract" }, { "docid": "9285828", "title": "", "text": "MENDOZA, District Judge Marlyn Sali and Deborah Spriggs (\"Sali and Spriggs\") appeal the district court's denial of class certification in this putative class action alleging employment claims against Corona Regional Medical Center and UHS of Delaware, Inc. (collectively \"Corona\"). Sali and Spriggs moved for certification of seven classes of Registered Nurses (\"RNs\") they allege were underpaid by Corona as a result of certain employment policies and practices. The district court denied certification on the basis that (1) Federal Rule of Civil Procedure 23(a)'s typicality requirement is not satisfied for any of the proposed classes because Sali and Spriggs failed to submit admissible evidence of their injuries; (2) Plaintiff Spriggs and proposed class counsel have not demonstrated they will adequately represent the proposed classes; and (3) several proposed classes fail to satisfy Rule 23(b)(3)'s predominance requirement. Because the district court abused its discretion by relying on each of these reasons to deny class certification, we reverse. BACKGROUND Corona operates a hospital in Southern California that employs hourly-wage RNs. Sali and Spriggs are RNs formerly employed by Corona. They assert that a number of Corona's employment policies and practices with respect to RNs violate California law and have resulted in underpayment of wages. They filed this putative class action in California State Court on behalf of \"all RNs employed by Defendants in California at any time during the Proposed Class Period who (a) were not paid all wages at their regular rate of pay; (b) not paid time and a-half and/or double time for all overtime hours worked; and (c) denied uninterrupted, 'off-duty' meal-and-rest periods.\" They allege Corona violated California law by (1) failing to pay all regular hourly wages; (2) failing to pay time-and-a-half for all overtime; (3) failing to pay double time for all hours worked in excess of twelve hours in a day; (4) not providing compliant meal and rest breaks; (5) failing to timely pay all wages due to separated former employees within seventy-two hours of separation; and (6) failing to provide accurate itemized wage statements. Corona removed the case to the United States District Court for the" }, { "docid": "14946359", "title": "", "text": "pay and promotions at its 3,400 retail locations. Id. at 2547-48. The District Court and the Ninth Circuit approved class certification but the Supreme Court reversed holding class certification was not appropriate because plaintiffs failed to establish the existence of a common question. Id. at 2556-57. Wal-Mart’s corporate policy forbade sex discrimination and the company had penalties for denials of equal opportunity. Id. at 2553. The evidence showed that the pay and promotion decisions were made on a local level based on the discretion of individual managers. Id. at 2554. The local supervisors had discretion over employment matters and in a company as large as Wal-Mart, the Court determined that it is unlikely that all managers would exercise their discretion in a common way. Id. at 2554-55. The Court explained that the plaintiffs failed to identify a common mode of exercising discretion that pervaded the entire company. Id. Therefore, the Court reversed the Ninth Circuit holding that Plaintiff had failed to meet the commonality requirement under Rule 23(a)(2). Id. at 2557. 1. Meal and Rest Periods Plaintiffs argue that the common and predominant legal question is whether Millard’s compensation system, including the lack of policy and procedures to pay additional “premium” pay for unprovided meal or rest breaks, is consistent with its obligation under California law. Therefore, according to Plaintiffs, if the time records show that a meal or rest break was not taken then those employees should have been paid the “premium.” Defendants oppose arguing that the class consisting of about 2,600 employees at 15-25 different locations in California was supervised by different Project Managers at each location. Moreover, they contend that this claim is inherently individualized because the Court will need to determine why meal periods were missed for each employee. California Labor Code section 226.7 provides “[n]o employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” Cal. Labor Code § 226.7(a). “If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the" }, { "docid": "21458764", "title": "", "text": "for believing that its acts did not violate the FLSA. Id. § 260. Because the FLSA leaves the decision to depart from the norm of awarding double damages to the district court, see, e.g., Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir.1999), we review only for abuse of discretion, McLaughlin v. Hogar San Jose, Inc., 865 F.2d 12, 14 (1st Cir.1989). The employer’s burden on appeal is especially difficult because we review the district court’s factual findings related to good faith and reasonableness for clear error. See id. (“The district court’s findings of good faith and reasonable grounds are mixed questions of law and fact, which are subject to the strict standard of review of Rule 52(a).”). Here, the district court found that Defendants failed to show good faith or objective reasonableness, referring back to its findings on willfulness with respect to the applicable statute of limitations. See Reich v. Newspapers of New Eng., Inc., 44 F.3d 1060, 1079 (1st Cir.1995) (“The FLSA imposes a two-year statute of limitations unless the violations are shown to be willful, in which case a three-year period applies.” (citing 29 U.S.C. § 255(a))). For statute of limitation purposes, the court found, inter alia, that Defendants “intentionally and consistently failed to keep accurate records of the time worked by its employees[,] ... disguised minimum wage, as well as overtime pay violations, ... did not record the amounts of cash tips[,] ... [and] most salient ... [to] a finding of willfulness, ... [paid] employees ‘off the books.’ ” [19] The district court's willfulness findings are not clearly erroneous, and they adequately support the court’s decision to award liquidated damages. Oasis’s failure to keep adequate payroll records and its intentional manipulation of the records it did keep are sufficient grounds for concluding that Oasis did not act in good faith or with a reasonable belief that it was in compliance with the FLSA. Cf. Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 844 (6th Cir.2002) (“[T]he fact that an employer knowingly under-reported its employee’s work hours could suggest to a [fact" }, { "docid": "15659217", "title": "", "text": "we have explained that “since an appellate court reviews the administrative decision on the identical basis as did the district court, appellate court review need accord no particular deference to the district court’s conclusion as to whether the identical administrative record does or does not support the administrative determination.... ” Louisiana Envtl. Soc’y, Inc. v. Dole, 707 F.2d 116, 119 (5th Cir.1983). This reasoning applies equally in the case at hand, and we therefore accord no deference to the decision of the district court and proceed as though reviewing the decision of the BRB in the first instance. “Our review of Review Board decisions is limited to considering errors of law and ensuring that the Review Board adhered to its statutory standard of review, that is, whether the ALJ’s findings of fact are supported by substantial evidence and are consistent with the law.” Sisson v. Davis & Sons, Inc., 131 F.3d 555, 557 (5th Cir.1998); see also Shell Offshore, Inc. v. Director, OWCP, 122 F.3d 312, 315 (5th Cir.1997); Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir.1995). We review the BRB’s interpretation of the LHWCA de novo. See Equitable Equip. Co. v. Director, OWCP, 191 F.3d 630, 631 (5th Cir.1999). III. MEALS AND LODGING AS WAGES The first question we must address is whether the value of meals and lodging exempted from federal income taxation by section 119 of the Internal Revenue Code (“ § 119 Meals and Lodging”) is included in “wages” under the LHWCA. The LHWCA provides: The term “wages” means the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle C of title 26 (relating to employment taxes). The term wages does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or" }, { "docid": "9620019", "title": "", "text": "the district manager’s store visits translate into actual or constructive knowledge. On the contrary, White testified that when he worked off-the-clock during store hours, other employees “had no knowledge if [he] was on or off the shift.” Doc # 49, Ex A at 119:11-12. Further, White never testified that his district manager observed him working off-the-clock. Rather, White stated that he simply “assumed” that his district manager came to the store when White was not 'present and that he didn’t know what the store manager “looked into.” Id. at 189:6-16; Doc # 43, Ex A at 189:25-190:12. In sum, White has failed to raise genuine issues of fact. Based on White’s “evidence,” the court finds that no reasonable jury could conclude that Starbucks knew about White’s alleged unpaid time. White’s theories for imputing knowledge to Starbucks are pure conjecture. Imputing constructive knowledge would be particularly inappropriate given that White was paid for significant overtime during his brief tenure and admitted that he was never criticized for working overtime. Accordingly, Starbucks’ motion for summary judgment on Wdiite’s first claim for unlawful failure to pay overtime wages (“off-the-cloek claim”) is GRANTED. B Starbucks argues that it is entitled to summary judgment on White’s meal and rest break claims because (1) the claims are untimely under the applicable statute of limitations and (2) Wdiite voluntarily chose to forego his breaks. Doc # 42 at 17-24. The court addresses each argument below. 1 Cal Labor Code § 226.7(a) provides, “No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” Subdivision (b) of section 226.7 further provides that, “If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” (Italics added.) The issue is whether the “additional hour of pay” describes a “wage” or a “penalty.”" }, { "docid": "11963920", "title": "", "text": "record supports a conclusion that SCMRI and MedAlliance clearly and unambiguously waived their right to be bound only by a written purchase agreement. Cf. Burman, 821 P.2d at 919-20 (finding plaintiff impliedly waived provision of real estate purchase agreement requiring delivery of commitments for title insurance policies prior to closing because plaintiff did not object to failure to deliver commitments); Richmond, 781 P.2d at 195 (finding contractor did not waive contractual provision that home owner purchase property insurance for work where only evidence of waiver was that contractor began work without receiving a copy of the owner’s insurance policy). Therefore, we conclude that the district court committed no reversible error in finding that a valid contract existed between MedAlliance and SCMRI as of July 7, 1993. II. Damages We review the amount of a damage award for clear .error and questions of law de novo. See, e.g., Dill v. City of Edmond, Okla., 155 F.3d 1193, 1209 (10th Cir.1998). The methodology a district court uses in calculating a damage award, such as determining the proper elements of the award or the proper scope of recovery, is a question of law. See Bartlett v. New York State Bd. of Law Exam’rs, 156 F.3d 321, 331-32 (2d Cir.1998) (“We review the method of calculation of damages de novo and the actual calculation of damages for clear error.” (internal citations omitted)); In re Air Crash Disaster Near Cerritos, Cal., on August 31, 1986, 982 F.2d 1271, 1275 (9th Cir.1992) (“When a legal determination such as the proper elements of an award of damages is reviewed, a de novo standard is applied.”) A. MedAlliance assigns error to the district court because it did not subtract from the damages calculated by the court the $2,041,184 in profits' SCMRI realized after the breach. Defendant asserts that SCMRI received an improper double recovery because it was awarded expectancy damages and also retained post-breach profits from the clinic. We disagree. Colorado follows the general contract law rule that a benefit to the plaintiff as a result of a breach reduces the plaintiffs damages accordingly. See Wells Aircraft Parts" }, { "docid": "4416093", "title": "", "text": "their employees with pay stubs that include, among other things, the number of hours worked by an employee entitled to overtime compensation. Cal. Labor Code § 226. Employers who “knowing[ly] and intentionally]” fail to comply with this requirement may be liable for damages or statutory penalties. § 226(e). Plaintiffs contend that this statute was violated in this case, because then-pay stubs failed to include their overtime hours. FIE’s only argument that this claim should be dismissed as to all of the plaintiffs is that plaintiffs were exempt from any overtime pay requirements. The Court has rejected that argument for the reasons given above. Accordingly, FIE’s motion is denied to the extent that it seeks to dismiss this claim as to all of the plaintiffs. FIE adds, however, that this claim should be dismissed as to plaintiff Neil Coffman, under the one year statute of limitations for California actions seeking statutory penalties. See Cal. Civ. Proc. § 340(a). FIE notes that Coffman was terminated on March 8, 2006, and was not added to this case until February 26, 2008. Plaintiffs do not dispute these contentions, which clearly place Coffman’s claim beyond the statute of limitations. Accordingly, FIE’s motion is granted to the extent that it seeks the dismissal of Coffman’s claim for pay stub penalties under section 226. D. Breaks and Meal Periods California law also provides for penalties where employers fail to provide employees with adequate meal breaks. Cal. Lab.Code § 226.7. The parties disagree over whether California’s current regulations require that an employer ensure that employees take the required breaks, or whether the employer must simply allow it. The California Supreme Court has recently granted certiorari to consider this question. Brinkley v. Pub. Storage, 167 Cal.App.4th 1278, 84 Cal.Rptr.3d 873 (2008), rev. granted, 87 Cal.Rptr.3d 674, 198 P.3d 1087 (2009). Thus, the Court defers ruling on this state law question until that Court has provided guidance. Accordingly, both parties’ motions for summary judgment are deferred to the extent that they seek judgment on this issue. The parties are ordered to submit a joint letter within twenty days of the" }, { "docid": "22209731", "title": "", "text": "the government’s witness from the Department of Labor who performed the calculations on which the government based its proposed award. The Sabhnanis thus had ample occasion to challenge this witness’s knowledge of the facts of the case and the basis for his figures. We conclude that the defendants were “afforded an adequate opportunity to argue [their] position” and that the district court did not abuse its discretion in declining to hold a full evidentiary hearing. Maurer, 226 F.3d at 152. “In determining the number of hours worked by a live-in worker, the employee and the employer may exclude, by agreement between themselves, the amount of sleeping time, meal time and other periods of complete freedom from all duties.” 29 C.F.R. § 552.102(a). Here, the trial record established that there was no “agreement” between the Sabhnanis and the maids as to periods of free time. To the contrary, the testimony was that at no time were Samirah and Enung afforded “periods of complete freedom from all duties when the employee may either leave the premises or stay on the premises for purely personal pursuits.” Id. The trial testimony further demonstrated that the maids did not habitually get “a reasonable night’s sleep”; in such eases, Department of Labor regulations suggest that “the entire [sleeping] period” should be counted towards the number of hours worked. 29 C.F.R. § 785.22. The district court did not err, much less abuse its discretion, in conclud ing that the trial record shed substantial light on the number of hours worked and that a full hearing was unnecessary. 3. The District Court’s Award of Liquidated Damages Pursuant to 29 U.S.C. § 216(b), the district court calculated a “net back pay” figure for each of the maids and then doubled this figure to arrive at each maid’s total award. Section 216(b) of the FLSA provides that “[a]ny employer who violates [§§ 206 and 207] ... shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as" }, { "docid": "14946365", "title": "", "text": "there was a common policy that pervaded the entire company where Project Managers prevented employees from taking meal breaks and did not authorize and permit employees to take rest breaks. Furthermore, Plaintiffs incorrectly pose the commonality issue under Rule 23(a)(2) as whether Millard’s compensation system or policy and procedure of not paying a “premium” for missed meal and rest is in compliance with California law. Plaintiffs ignore the underlying threshold question of whether Defendants failed to “provide” meal breaks or “authorize and permit” employees to take rest breaks and the reasons why meal and/or rest periods were not taken. Under California law, an employer is required to “authorize and permit” employees to take a 10 minute rest break for every four hours worked and the employer is required to “provide” an opportunity for employees to take a 30 minute meal break when they work more than five hours. Cal. Labor Code § 226.7(a); (Dkt. No. 52-10, Wage Order 4-2001 § 12(A)). The meaning of “provide” under Labor Code sections 226.7 and 512 is currently pending before the California Supreme Court in Brinker Rest. Corp. v. Superior Court, 85 Cal.Rptr.3d 688, 196 P.3d 216 (2008). While this issue is currently pending before the California Supreme Court and because the California Supreme Court has not interpreted the meaning of “provide” in the Labor Code, district courts have concluded that the California Supreme Court would adopt the interpretation of “provide” to mean “make available” not “ensure taken.” As a result, district courts have denied class certification where a plaintiff has failed to show common proof that its employer prevented the putative class from taking required breaks. See Hadjavi v. CVS Pharm., Inc., 2011 WL 3240763 (C.D.Cal.2011) (denying class certification because plaintiffs failed to establish existence of a common core of facts or shared legal issues); Brown v. Federal Express Corp., 249 F.R.D. 580, 587 (C.D.Cal. 2008) (plaintiffs showed no method of common proof to establish Fed Ex’s policies prevented the putative class from taking required breaks); Kenny v. Supercuts, Inc., 252 F.R.D. 641, 646 (N.D.Cal.2008) (denying class certification because individual issues predominate as" }, { "docid": "20301329", "title": "", "text": "See Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir.2001) (“If plaintiffs cannot proceed as a class, some — perhaps most — will be unable to proceed as individuals because of the disparity between their litigation costs and what they hope to recover.”). The district court’s denial of class certification because of manageability concerns also lacks “support in inferences that may be drawn from the facts in the record.” See Hinkson, 585 F.3d at 1262 (internal citations and quotation marks omitted). The putative class and proposed subclasses contain approximately 538 people, and courts routinely certify larger and more complex classes. See, e.g., Ortega v. J.B. Hunt Transp., Inc., 258 F.R.D. 361, 364 (C.D.Cal.2009) (certifying class of “nearly 6,000” employees who alleged that their employer failed to pay minimum wages, provide proper meal and rest periods, provide accurate wage statements, or provide wages due upon termination); Kamar v. Radio Shack Corp., 254 F.R.D. 387, 402 (C.D.Cal.2008) (certifying class of 15,-000 employees who alleged that their employer’s policies violated state reporting time and split-shift regulations). Moreover, as noted above, Medline’s own documents demonstrate the feasibility of calculating damages in this case. Med-line’s electronic payroll records contain much of the data needed to calculate damages. In its notice removing the case from state to federal court, Medline calculated the damages exposure through a review of company payroll records. Through a query of the computerized timekeeping database, Medline’s director of payroll operations calculated the amount of money plaintiff Leyva had lost due to Medline’s rounding policy. The payroll director said the calculation took him “probably an hour and a half,” and that he could repeat the process for the entire class. The district court, or a special master appointed under Federal Rule of Civil Procedure 53, could use a similar method to calculate damages once the court adjudicates liability. Thus, the district court abused its discretion by ignoring the database’s potential to alleviate the burden of determining damages. IV. Conclusion The district court applied the wrong legal standard and abused its discretion when it" }, { "docid": "20301328", "title": "", "text": "110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law....”); Blackie, 524 F.2d at 905 (holding that the need to determine individualized damages does not defeat class certification). Moreover, the district court’s reasoning regarding manageability of the class action is “implausible” under Hinkson’s second step. 585 F.3d at 1263. The district court concluded that class certification is not the superior method of adjudication but did not suggest any other means for putative class members to adjudicate their claims. Indeed, it appears that none exist. The California Labor Code protects all workers regardless of their immigration status or financial resources. California Labor Code § 1171.5; see also Reyes v. Van Elk, Ltd., 148 Cal.App.4th 604, 56 Cal.Rptr.3d 68, 78 (2007). In light of the small size of the putative class members’ potential individual monetary recovery, class certification may be the only feasible means for them to adjudicate their claims. Thus, class certification is also the superior method of adjudication. See Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir.2001) (“If plaintiffs cannot proceed as a class, some — perhaps most — will be unable to proceed as individuals because of the disparity between their litigation costs and what they hope to recover.”). The district court’s denial of class certification because of manageability concerns also lacks “support in inferences that may be drawn from the facts in the record.” See Hinkson, 585 F.3d at 1262 (internal citations and quotation marks omitted). The putative class and proposed subclasses contain approximately 538 people, and courts routinely certify larger and more complex classes. See, e.g., Ortega v. J.B. Hunt Transp., Inc., 258 F.R.D. 361, 364 (C.D.Cal.2009) (certifying class of “nearly 6,000” employees who alleged that their employer failed to pay minimum wages, provide proper meal and rest periods, provide accurate wage statements, or provide wages due upon termination); Kamar v. Radio Shack Corp., 254 F.R.D. 387, 402 (C.D.Cal.2008) (certifying class of 15,-000 employees who alleged that their employer’s" }, { "docid": "9620020", "title": "", "text": "Wdiite’s first claim for unlawful failure to pay overtime wages (“off-the-cloek claim”) is GRANTED. B Starbucks argues that it is entitled to summary judgment on White’s meal and rest break claims because (1) the claims are untimely under the applicable statute of limitations and (2) Wdiite voluntarily chose to forego his breaks. Doc # 42 at 17-24. The court addresses each argument below. 1 Cal Labor Code § 226.7(a) provides, “No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” Subdivision (b) of section 226.7 further provides that, “If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” (Italics added.) The issue is whether the “additional hour of pay” describes a “wage” or a “penalty.” A three-year statute of limitations applies to the former (Cal CCP § 338(a) [“An action upon a liability created by statute, other than a penalty or forfeiture”]), while a one-year statute of limitations governs claims for penalties (Cal CCP § 340(a) [“An action upon a statute for a penalty or forfeiture”]). Starbucks argues that claims under Cal Labor Code § 226.7 are claims for penalties. Doc # 42 at 17. This is incorrect. The California Supreme Court’s April 16, 2007 decision in Murphy v. Kenneth Cole Productions, 40 Cal.4th 1094, 56 Cal.Rptr.8d 880, 155 P.3d 284 (2007) holds that the “additional hour of pay” for failure to provide an employee with meal or rest periods constitutes a “wage,” rather than a “penalty,” and accordingly, is governed by the three-year statute of limitations. Murphy at 1114, 56 Cal.Rptr.3d 880, 155 P.3d 284. White’s employment with Starbucks ended July 9, 2004. White filed the complaint in this matter on June 21, 2006. Accordingly, White’s claim for missed meal and rest breaks is timely. 2 Starbucks next argues" }, { "docid": "4000834", "title": "", "text": "535 (2012), the court held that an employer is obligated to “relieve its employee of all duty for an uninterrupted 30-minute period” in order to satisfy its meal-break obligations, but that the employer need not actually ensure that its employees take meal breaks. If an employee works through a meal break, the employer is liable only for straight pay, and then only when it “knew or reasonably should have known that the worker was working through the authorized meal period.” Id. at 536 n. 19 (internal quotation marks omitted). On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.... The wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks. Id. at 536. We vacate the district court’s Rule 23(b)(3) certification and remand to permit the court to reconsider its analysis in light of Wal-Mart, in light of Wells Fargo and Vínole, and in light of Brinker. Rule 23 provides district courts with broad authority at various stages in the litigation to revisit class certification determinations and to redefine or decertify classes as appropriate. Armstrong v. Davis, 275 F.3d 849, 871 n. 28 (9th Cir.2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-05, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). The district court should consult the entire record of this case in the exercise of that authority. Conclusion We reverse the district court’s class certification under Rule 23(b)(2) for purposes of monetary relief. We vacate and remand for the district court to reconsider its findings of commonality under Rule 23(a) and predominance under Rule 23(b)(3). We also vacate and remand for reconsideration of class certification under Rule 23(b)(2) for purposes of injunctive relief. Because we vacate the district court’s class certification, we do not reach any other issues from trial, including the calculation of damages. REVERSED in part, VACATED, and REMANDED." }, { "docid": "23325626", "title": "", "text": "does not distort the operation of the time limits for filing a notice of appeal under Rule 4. We do not reach or rule on the multiparty case in which limited appeals and cross appeals might leap-frog one another to expand the time for all parties to appeal for an unreasonable period. B. Overtime Calculations. The deputies claim that the district court made three errors in calculating the overtime pay due them under § 7(k) of the FLSA. They claim that the district court erred in calculating their pay on a weekly basis rather than using a 28-day work period, that the district court erred in concluding their meal breaks and three hour rest periods on long weekend shifts were not compensable. We will not disturb the district court’s fact findings unless they are clearly erroneous. However, we review the district court’s application of the FLSA de novo. Section 7(k) of the FLSA creates an exception to the standard wage and hour provisions of the FLSA. It provides special compensation rules for public law enforcement and fire protection departments. Section 7(k) contains two structural concepts not found elsewhere in the FLSA: the “tour of duty” and the “work period.” A tour of duty means a shift or “period of time during which an employee is considered to be on duty.” 29 C.F.R. § 553.220. A work period “refers to any established and regularly recurring period of work which, under the terms of the [FLSA], cannot be less than 7 consecutive days nor more than 28 consecutive days.” 29 C.F.R. § 553.224. Both the tour of duty and the work period impact the determination of compensable hours and overtime compensation under § 7(k) of the FLSA. Under § 7(k)(l)(B), the Secretary of the Department of Labor has determined that the average number of hours worked by law enforcement employees in a 28 day period is 171. 29 C.F.R. § 553.230. Thus a law enforcement employee receives a regular wage for the number of hours worked in a particular work period that bears the same relationship to 171 as the number of" }, { "docid": "3903996", "title": "", "text": "an opportunity to make promotions to supervisory positions: Carol Cross and Joe Clayton. Following Smith’s promotion, Hasham filed his discrimination claim with the EEOC and thereafter with the district court. After a jury trial, Hasham was awarded back pay and compensatory damages. On post-trial motions, the trial judge upheld the jury’s liability verdict while vacating the compensatory damages award and awarded Plaintiff $15,548 in back pay, calculated from the date of his promotion denial, $4,188.48 in interest, the Supervisor I promotion with seniority, calculated from the date of his promotion denial, and attorneys fees and costs. Defendant CBOE appeals. II. ISSUES On appeal, Appellant CBOE argues that the record fails to lend support to a finding of intentional national-origin discrimination; the district court committed reversible error in its evidentiary rulings and jury instruction; and the jury’s verdict was based upon passion and prejudice. III. DISCUSSION A. Intentional National Origin Discrimination CBOE argues that the record fails to support the jury’s finding of intentional discrimination. Noting that the trial court denied CBOE’s motion for a judgment as a matter of law on these grounds, we interpret Appellant’s issue presented for review as a challenge to the court’s denial which we review de novo. See Williams v. Phamacia, 137 F.3d 944, 948 (7th Cir.1998). This Court is limited to deciding only whether the evidence presented at trial, with all the reasonable inferences drawn there from, “is sufficient to support the verdict when viewed in the light most favorable to the [plaintiff].” See Collins v. Kibort, 143 F.3d 331, 335 (7th Cir. 1998). We will overturn a jury verdict for the plaintiff only if we conclude that “no rational jury could have found for the plaintiff.” See Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 629(7th Cir. 1996). Indeed, this standard is applied “stringently in discrimination cases where witness credibility is often crucial.” Williams, 137 F.3d at 948. Hasham’s discrimination claim arises under 42 U.S.C. § 2000e-2(a), which makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such" }, { "docid": "19195188", "title": "", "text": "U.S. Dist. LEXIS 155682, at *88, common questions do not predominate here. 3. Conclusion as to Off-the-Clock Subclass Because Plaintiffs have failed to demonstrate that common questions predominate, the Court denies certification of this subclass. C. Meal Break Subclass Plaintiffs Jimmy Ellison, William Doland and Lynetta Ellison seek to certify a subclass defined as: All non-exempt or hourly paid employees who have been employed at Defendant’s retail stores in the State of California at any time on or after July 29, 2005 until the date of certification. Ellison Mot. at 4-5. Plaintiffs assert that Defendant’s meal break policy violates California law because it does not require Defendant to secure on-duty meal period agreements for employees who are required to remain on the premises during a meal period. See Ellison Mot. at 17. Plaintiffs rely on Labor Code section 512, IWC Wage Order No. 7, and 8 California Code of Regulations section 11070 subdivision 11(c), which provides that “[a]n ‘on-duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.” Plaintiffs also point to Brinker, 53 Cal.4th at 1035, 139 Cal.Rptr.3d 315, 273 P.3d 513 which held that: When someone is suffered or permitted to work ... for five hours, an employer is put to a choice: it must (1) afford an off duty meal period; (2) consent to a mutually agreed-upon waiver if one hour or less will end the shift; or (3) obtain written agreement to an on duty meal period if circumstances permit. Plaintiffs maintain that their “theory of liability is premised on the legality of Defendant’s uniform written meal period policy, which did not obtain on-duty meal period agreements for any employees who were required to stay on the premises during their meal breaks.” Ellison Mot. at 17. The Court concludes that Defendant’s meal break policy does not help Plaintiffs’ case as much as they would like. 1. Relevant Evidence Throughout the relevant time period, Defendant’s uniform written meal break" }, { "docid": "22917279", "title": "", "text": "bankruptcy estate because they did not in any way enhance the property of the bankruptcy estate and the services did not lead to an orderly and timely closing of the bankruptcy case. The court noted that the problems in this regard could have been disposed of very easily had Chamberlain taken an inventory of the estate assets upon confirmation of the plan. The court referred to Chamberlain’s failure to conduct the initial inventory as “a significant omission” and noted that because he failed to take the inventory, it was difficult, if not impossible, for Chamberlain to meet Kula’s allegations with any evidence. The court also noted that because of this failure, it was necessary to hire the third party examiner, Snyder, which cost the estate some $17,000. Again, without making a lodestar calculation, the court concluded that Chamberlain’s reasonable compensation for this time period was $10,000 for services and $2,978.38 for expenses. The net result was that Chamberlain was allowed a total of $46,450.11 in fees and expenses. Since he had already been paid $ 73,096.98, he was required to disgorge $26,-646.87. Chamberlain appeals that order. ARGUMENTS Chamberlain raises five points on appeal which may all be disposed in a discussion of his two primary arguments, namely, (1) the court did not apply the proper standard in determining the appropriate award of compensation; and (2) Chamberlain was entitled to a hearing so as to present live testimony on the disputed factual issues. With one exception, we find no error in the bankruptcy court’s factual findings or conclusions of law; however, for the reasons that follow, we conclude that the case must be reversed and remanded for either a lodestar calculation or a finding that the lodestar method is not appropriate under the circumstances. STANDARD OF REVIEW An appellate court reviews, the bankruptcy court’s findings of fact, whether based upon oral or documentary evidence, for clear error, and reviews legal conclusions de novo. Fed. R. Bankr.P. 8013; First National Bank of Olathe v. Pontow, 111 F.3d 604, 609 (8th Cir.1997). We review the bankruptcy court’s decisions regarding an award of fees" }, { "docid": "14981757", "title": "", "text": "Agency and the employer of the specific provisions of [the California Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.” Cal. Lab.Code § 2699.3(a)(1). ITW and Hobart argue that the letter Alcantar sent them and the Labor and Workforce Development Agency does not include sufficient facts or theories. We agree. Alcantar’s letter is a series of legal conclusions: Our offices have been retained by Joseluis Alcantara [sic] (Plaintiff). Plaintiff is a former employee of ITW Food Equipment Group, LLC aka Hobart Service (Defendant). Plaintiff contends that Defendant (1) failed to pay wages for all time worked; (2) failed to pay overtime wages for overtime worked; (3) failed to include the extra compensation required by California Labor Code section 1194 in the regular rate of pay when computing overtime compensation, thereby failing to pay Plaintiff and those who earned additional compensation for all overtime wages due; (4) failed to provide accurate wage statements to employees as required by California Labor Code section 226; (5) failed to provide reimbursement for work related expenses as required by Labor Code § 2802; and, (6) failed to provide off-duty meal periods and to pay compensation for work without off-duty meal periods to its California' employees in violation of California Labor Code sections 226.7 and 512, and applicable Industrial Welfare Commission orders. Said conduct, in addition to the forgoing, violated each Labor Code section as set forth in California Labor Code section 2699.5. The only facts or theories that could be read into this letter are those implied by the claimed violations of specific sections of the California Labor Code — that Hobart failed to pay wages for time worked, failed to pay overtime wages for overtime worked, failed to include the extra compensation required by § 1194 in the regular rate of pay when computing overtime compensation, and so on. This is insufficient. Section 2699.3(a)(1) was adopted as part of an amendment to PAGA, intended to cure perceived abuses of the Act. As the California Court of Appeal observed, The Senate floor analysis stated “[the amendment] improves" }, { "docid": "14981758", "title": "", "text": "for work related expenses as required by Labor Code § 2802; and, (6) failed to provide off-duty meal periods and to pay compensation for work without off-duty meal periods to its California' employees in violation of California Labor Code sections 226.7 and 512, and applicable Industrial Welfare Commission orders. Said conduct, in addition to the forgoing, violated each Labor Code section as set forth in California Labor Code section 2699.5. The only facts or theories that could be read into this letter are those implied by the claimed violations of specific sections of the California Labor Code — that Hobart failed to pay wages for time worked, failed to pay overtime wages for overtime worked, failed to include the extra compensation required by § 1194 in the regular rate of pay when computing overtime compensation, and so on. This is insufficient. Section 2699.3(a)(1) was adopted as part of an amendment to PAGA, intended to cure perceived abuses of the Act. As the California Court of Appeal observed, The Senate floor analysis stated “[the amendment] improves [the Act] by allowing the Labor Agency to act first on more serious violations such as wage and hour violations and give employers an opportunity to cure less ‘serious’ violations. The bill protects businesses from shakedown lawsuits, yet ensures that labor laws protecting California’s working men and women are enforced— either through the Labor Agency or through the courts.” Dunlap v. Superior Court, 142 Cal.App.4th 330, 338-39, 47 Cal.Rptr.3d 614 (2006) (quoting Calif. S. Rules Comm., Off. of S. Floor Analyses, Bill Analysis for SB1809, at 5-6 (Aug. 27, 2004)). Plaintiff’s letter— a string of legal conclusions with no factual allegations or theories of liability to support them — is insufficient to allow the Labor and Workforce Development Agency to intelligently assess the seriousness of the alleged violations. Neither does it provide sufficient information to permit the employer to determine what policies or practices are being complained of so as to know whether to fold or fight. Thus, we affirm. This conclusion is consistent with our unpublished opinion in Archila v. KFC U.S. Properties, Inc.," } ]

[ { "docid": "23507870", "title": "", "text": "asserted dispute. In short, doubts should be resolved in favor of coverage. Coudert, 705 F.2d at 81 (citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). The United States Arbitration Act, codified at 9 U.S.C. §§ 1-15 (1988), requires that agreements to arbitrate disputes be enforced. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987). A court considering a motion for a stay pending arbitration must determine whether the parties agreed to arbitrate and the scope of their agreement. Id. (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Without question, Fleck agreed to comply with the rules and constitutional provisions of the NYSE and the NASD by signing the U-4 application. See Coudert, 705 F.2d at 81. We consider first whether Fleck’s claim against the Hutton Company is arbitrable. Although appellant suggests that other provisions might require arbitration here, we start with NYSE Rule 347 because that provision, by its terms, was written to cover disputes arising out of the termination of employment. In Coudert, we considered Rule 347 and concluded that it did not apply to an employee’s allegation that her employer falsely stated, after her resignation, that she had been fired for cause. Id. at 80. Appellants, urging us not to follow Cou-dert, note that recent Supreme Court cases demonstrate an increasingly hospitable attitude toward arbitration. For example, Rodriguez De Quijas v. Shearson/American Express, Inc., — U.S. —,—, 109 S.Ct. 1917, 1918, 104 L.Ed.2d 526, (1989) which overruled Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), noted that the “presumption of disfavoring arbitration proceedings” is now “outmoded.” These cases, however, are not totally relevant. For example, Rodriguez, Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), and Mitsubishi all dealt with arbitration agreements that clearly would be binding unless more important federal policies, such as those of the securities and antitrust laws, prevented enforcement. On the other hand, here we are faced with" } ]

[ { "docid": "23106690", "title": "", "text": "395, 404, 87 S.Ct. 1801, 1806, 18 L.Ed.2d 1270 (1967), plaintiffs argue that a district court’s injunction pending arbitration abrogates the agreed-upon role of the arbitrators as adjudicators of the dispute. Moreover, plaintiffs argue that the parties here had agreed to submit claims for preliminary injunctive relief to the arbitrators. Finally, they argue that the ability of NYSE arbitration panels to promptly assemble and rule, and to grant preliminary injunctive relief not substantially different from that of a district court, warrants the fashioning of a “rule of necessity” so that at least in NYSE cases a district court should not have preliminary injunction jurisdiction. The short answer to these arguments is that they come too late in the day in light of controlling precedent to the contrary. In Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co., 749 F.2d 124, 125 (2d Cir.1984) (per curiam), we gave explicit and broad recognition to a district court’s power to grant preliminary injunc-tive relief pending arbitration: We reverse the denial of the preliminary injunction because it appears, from the record before us, that the district court believed its decision to refer the dispute to arbitration stripped the court of power to grant injunctive relief. The fact that a dispute is to be arbitrated, however, does not absolve the court of its obligation to consider the merits of a requested preliminary injunction.... 749 F.2d at 125. See also Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067 (2d Cir.1972) (“in a proper case such as we have here, the' only way to preserve the status quo during the penden-cy of the arbitration proceeding is by the granting of injunctive relief”). Roso-Lino ’s broad language removes any doubt that district court injunctions pending arbitration are available only when the contract expressly so provides. See Erving, 468 F.2d at 1066 n. 1; see also Guiness-Harp Corp. v. Jos. Schlitz Brewing Co., 613 F.2d 468, 472-73 (2d Cir.1980) (contract requires maintenance of status quo until arbitration); Connecticut Resources Recovery Auth. v. Occidental Petroleum Corp., 705 F.2d 31, 33-35 (2d Cir.1983) (same). Courts of appeals elsewhere addressing the" }, { "docid": "13230203", "title": "", "text": "Bradley, 756 F.2d 1048 (4th Cir.1985); Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co., 749 F.2d 124 (2d Cir.1984) (per curiam); Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348 (7th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984)). See also PMS Distributing Co., Inc. v. Huber & Suhner, A.G., 854 F.2d 355, 358 (9th Cir.1988) (citing Teradyne to support holding that Arbitration Act does not strip district court of power to grant writ of possession pending outcome of arbitration). Only the Court of Appeals for the Eighth Circuit appears to have expressly held otherwise. See Merrill Lynch, Pierce, Fenner & Smith v. Hovey, 726 F.2d 1286, 1291-92 (8th Cir.1984) (“where the Arbitration Act is applicable and no qualifying contractual language has been alleged, the district court errs in granting injunctive relief”). See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Scott, No. 83-1480 (10th Cir. May 12, 1983) (vacating by order and without formal opinion a preliminary injunction that the district court had granted pending arbitration); RGI, Inc. v. Tucker & Associates, Inc., 858 F.2d 227, 230 (5th Cir.1988) (where contract clause in arbitrable dispute specified that in the event the dispute was submitted for arbitration, the contract would continue in full force, issuance of preliminary injunction neither conflicted with Hovey (which left open the possibility of an injunction where the parties had contemplated its use beforehand) nor constituted an abuse of discretion). We first consider Amgen’s claim that the language of § 3 of the Arbitration Act expressly prevents the district court from entering preliminary injunctive relief. Section 3 provides: § 3. Stay of proceedings where issue therein referable to arbitration If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the" }, { "docid": "10025037", "title": "", "text": "plaintiff does not contend that his signature was obtained by forgery or fraud. Therefore, plaintiff cannot avoid “the general contract rule that a person of ordinary understanding and competence will be bound by the provisions of a contract that he signs whether or not he has read them.” See Avila Group, Inc. v. Norman J. of California, 426 F.Supp. 537, 540 (S.D.N.Y.1977). See also McMahon, 107 S.Ct. at 2337 (encouraging enforcement of arbitration agreements absent “fraud or excessive economic power”); Genesco, 815 F.2d at 846 (subjective agreement as to arbitration clause held unnecessary). Accordingly, the RICO and § 10(b) claims must be submitted to arbitration. See Byrd, 470 U.S. at 218, 105 S.Ct. at 1241 (Arbitration Act “mandates that district courts shall direct the parties to proceed to arbitration on issues to which an arbitration agreement has been signed.”) (emphasis in original). III. Stay Shearson moves for a stay of the instant proceeding. “The decision to stay the balance of the proceedings pending arbitration is a matter largely within the dis trict court’s discretion to control its docket.” Genesco, 815 F.2d at 856 (citing Moses H. Cone Memorial Hospital, 460 U.S. at 20 n. 23, 103 S.Ct. at 939, n. 23). “Broad stay orders are particularly appropriate if the arbitrable claims predominate the lawsuit and the nonarbitrable claims are of questionable merit.” Id. (citing NPS Communications, Inc. v. Continental Group, Inc., 760 F.2d 463, 465 (2d Cir.1985); S.A. Mineracao Da Trindade-Samitri Utah International, 745 F.2d 190, 196-97). In this case, it is plain that the arbitrable claims predominate the lawsuit. It is also clear that the facts underlying the federal and state claims are the same. See Leone v. Advest, Inc., 624 F.Supp. 297, 303 (S.D.N.Y.1985). Accordingly, the motion for a stay is hereby granted. IV. Conclusion As the Second Circuit has remarked, Although granting defendants’ demand for arbitration at this point may be sanctioning a less efficient means of resolving this dispute, we reemphasize that neither efficiency nor judicial economy is the primary goal behind the arbitration act. Indeed, we have recently stated that a district court may not," }, { "docid": "23031416", "title": "", "text": "circuit. Other circuits, however, have examined the issue in some detail. The Second, Fourth and Seventh Circuits all take the view that a court can, and should, grant a preliminary injunction in an arbitrable dispute whenever an injunction is necessary to preserve the status quo pending arbitration. In Roso-Lino Beverage Distributors, Inc. v. The Coca-Cola Bottling Company of New York, 749 F.2d 124 (2d Cir.1984), the Second Circuit reversed the district court’s denial of a preliminary injunction because it “appear[ed], from the record ..., that the district court believed its decision to refer the dispute to arbitration stripped the court of the power to grant injunctive relief.” Id. at 125. Relying on its decision in Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir.1972), the Second Circuit held that the fact that the dispute was to be arbitrated did not “absolve the court of its obligation to consider the merits of a requested preliminary injunction,” and that the proper course for the district court was to determine whether the dispute was a “proper case” for an injunction. 749 F.2d at 125. Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, involved a suit by a basketball player for rescission of his contract with a professional club. The club counterclaimed, asserting a right to arbitration, and sought injunctive relief. The district court granted a preliminary injunction enjoining the plaintiff from playing for any other club pending determination of the dispute by arbitration. The Second Circuit affirmed, noting that the injunction was the only way to preserve the status quo during the pendency of the arbitration proceeding. Id. at 1067. The Fourth Circuit’s examination of this issue, in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048 (4th Cir.1985), focused on the effect of § 3 of the Arbitration Act on the court’s power to issue preliminary injunctive relief. Section 3 provides that the court shall, upon determination that a dispute is arbitrable, and on application of one of the parties, “stay the trial of the action until such arbitration has been had.” Merrill Lynch sued Bradley," }, { "docid": "23539571", "title": "", "text": "to rely on the Guaranty as a waiver of Armstrong’s arbitration rights must also fail. The Guaranty does not mention the Agreement — much less its arbitration clause — arid the Guaranty’s provisions as to jurisdiction, venue, and waiver of moratorium and stay laws do not constitute the kind of clear and specific waiver required to defeat the express arbitration provision in the Agreement. The complaint in the Connecticut Action relies on Armstrong’s alleged failure to satisfy his obligations (particularly the Closing Conditions) under the Agreement. Armstrong has a right to have issues related to that claim decided in the pending arbitration and is entitled, therefore, to a stay under § 3 of the FAA pending arbitration. B. The Stay of Crisa’s Suit In addition to joining the arguments- raised by plaintiff WorldCrisa, plaintiff Crisa argues that it is not a party to the Agreement and therefore is not bound by the arbitration clause of the Agreement — even if WorldCrisa is. There is authority to the effect that ordinarily such a clause in a contract cannot justify a stay under § 3 of the FAA as to someone who was not a party to the contract. Citrus Mktg. Bd. of Israel v. J. Lauritzen A/S, 943 F.2d 220, 224-25 (2d Cir.1991); Nederlandse Erts-Tankersmaatschappij, N.V. v. Isbrandtsen Co., 339 F.2d 440, 441 (2d Cir.1964); cf. McCowan, 908 F.2d at 1107-08; Sierra Rutile Ltd. v. Katz, 937 F.2d 743, 751-52 (2d Cir.1991) (Mahoney, J., concurring). Ordinary principles of agency and contract law may, however, provide grounds for holding a non-signatory to an arbitration agreement, Thomson-CSF, S.A. v. American Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir.1995) (citing incorporation by reference, assumption, agency relationship, veil-piercing/alter-ego, and estoppel as possible grounds). It is arguable that Crisa could be bound even under these cases. We do not, however, think it necessary to determine the issue. We have' recognized that district courts, despite the inapplicability of the FAA, may stay a case pursuant to “the power inherent in every court to control the disposition of the causes on its docket with economy of time and" }, { "docid": "10025038", "title": "", "text": "control its docket.” Genesco, 815 F.2d at 856 (citing Moses H. Cone Memorial Hospital, 460 U.S. at 20 n. 23, 103 S.Ct. at 939, n. 23). “Broad stay orders are particularly appropriate if the arbitrable claims predominate the lawsuit and the nonarbitrable claims are of questionable merit.” Id. (citing NPS Communications, Inc. v. Continental Group, Inc., 760 F.2d 463, 465 (2d Cir.1985); S.A. Mineracao Da Trindade-Samitri Utah International, 745 F.2d 190, 196-97). In this case, it is plain that the arbitrable claims predominate the lawsuit. It is also clear that the facts underlying the federal and state claims are the same. See Leone v. Advest, Inc., 624 F.Supp. 297, 303 (S.D.N.Y.1985). Accordingly, the motion for a stay is hereby granted. IV. Conclusion As the Second Circuit has remarked, Although granting defendants’ demand for arbitration at this point may be sanctioning a less efficient means of resolving this dispute, we reemphasize that neither efficiency nor judicial economy is the primary goal behind the arbitration act. Indeed, we have recently stated that a district court may not, on considerations of judical economy, refuse to stay the proceedings before it in favor of arbitration. See Seguros Banvenez, S.A. v. S/S Oliver Drescher, 761 F.2d 855, 862 (2d Cir.1985). ‘The preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate, even if the result is ‘piecemeal’ litigation, at least absent a countervailing policy manifested in another federal statute.’ Rush, 779 F.2d at 891 (quoting Byrd, 470 U.S. at 221, 105 S.Ct. at 1242-43). Accordingly, Shearson’s motion to compel arbitration of the RICO and § 10(b) claims is hereby granted and the balance of the litigation, including the action against defendant Travis, is hereby stayed pending the arbitration. . The Magistrate thus did not address the issue of waiver as to the section 10(b) claims. See Report and Recommendation, dated February 10, 1986, at 9. . In its brief, Shearson expressly limited its interlocutory appeal to that portion of this Court’s order which denied its motion" }, { "docid": "488018", "title": "", "text": "claims pending the arbitration of their state law claims. A plaintiff has the right to litigate a ’33 Act claim in a federal court notwithstanding any arbitration agreement with the defendant. See Wilko. This right is substantially diminished if such claims must lay dormant until other claims arising out of the same series of events have been arbitrated. Evidence supporting the federal claims may become stale or unavailable prior to the conclusion of the arbitration. Moreover, delay generally works to the advantage of defendants who may well be inclined to prolong the arbitration unnecessarily in the hope that plaintiffs ultimately will be forced to abandon their nonarbitra-ble claims. If nonarbitrable federal claims are stayed pending the arbitration of other federal or state claims, plaintiffs alleging fraud in securities transactions face the unhappy choice of either forgoing arbitra-ble claims in order to obtain prompt consideration of the other claims or waiting months, if not years, before their nonarbi-trable claims will be heard by a federal court. We therefore cannot reconcile the routine staying of the ’33 Act claims with what was interpreted in Wilko to be a congressional declaration that agreements to arbitrate such federal claims are unenforceable. See 346 U.S. at 437, 74 S.Ct. at 188. Rather, we believe that an agreement to arbitrate state claims and arbitrable federal claims usually should have no effect on the pursuit of overlapping nonarbitrable federal securities claims. We acknowledge that we have previously allowed courts great discretion in staying nonarbitrable state and federal claims pending arbitration of related claims. See, e.g., NPS Communications, Inc. v. Continental Group, Inc., 760 F.2d 463, 466 (2d Cir.1985); Nederlandse ErtsTankersmaatschappij, N.V. v. Isbrandtsen Co., 339 F.2d 440 (2d Cir.1964). In contrast, other courts have recognized the merit in generally allowing arbitration and federal litigation to proceed simultaneously. See, e.g., Girard v. Drexel Burnham Lambert, Inc., 805 F.2d 607, 611 (5th Cir.1986) (holding in light of Dean Witter that district court properly refused to stay litigation of federal securities claims pending arbitration of pendent state claims); Sam Reisfeld & Son Import Co. v. S.A. Eteco, 530 F.2d 679," }, { "docid": "8499485", "title": "", "text": "rule seems to be fairly established that where a party’s request for a status quo injunction pending arbitration is grounded in the words of a contract, specific performance analysis is required. See Connecticut Resources, 705 F.2d at 35; Erving, 468 F.2d at 1066-67. But cf. Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d 1049, 1052-54 (2d Cir.1990) (holding that district court has jurisdiction to issue status quo injunction pending arbitration but not deciding appropriate standard for injunc-tive relief); Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling Co. of N.Y., Inc., 749 F.2d 124, 125 (2d Cir.1984) (per curiam) (where underlying contract did not contain status quo provision, court applied preliminary injunction analysis in deciding whether to issue an injunction pending arbitration). Hence, we hold status quo injunctions pending arbitration are final in nature because the merits of the parties’ underlying dispute will be resolved by an arbitrator. Moreover, when a motion for such an injunction is based on a status quo provision in the parties’ contract, it must be analyzed under specific performance principles. C. Application Before balancing the equities, we examine Nemer’s contract with Eagle Sales to determine initially whether it permits a star tus quo injunction. 1. Contract Language Paragraph 7 is a broad arbitration provision covering any and all disputes between Nemer and Eagle Sales. When disputes under it concern any one of three distinct issues — the legality of terminating Nemer’s franchise, adding a new Jeep-Eagle dealership or relocating an existing Jeep-Eagle dealership — Paragraph 7 requires Eagle Sales to “stay implementation of the decision ... until the decision of the arbitrator has been announced.” In its September 21 order the district court ruled that the language of Paragraph 7 linked the merits of the status quo provision with the merits of the underlying arbitration. Specifically, the trial court held it proper to consider the merits of the underlying dispute because “[Eagle Sale’s] status quo obligations [are] dependent upon Nemer’s invocation of the right to arbitrate the legality of appointing new dealers.” Of course the status quo obligations depend upon the invocation of arbitration;" }, { "docid": "22396615", "title": "", "text": "it too “arises under” the textile sales contracts. Janmort Leasing, Inc. v. Econo-Car International, Inc., 475 F.Supp. 1282, 1292 (E.D.N.Y.1979). Since the sales agreements lie at the heart of both the unjust enrichment and money had and received claims, they must also be resolved through arbitration. 4. Tortious Interference with Contractual Relations In Count VII Genesco alleges that Kakiuchis Japan and America tortiously interfered with its contractual relationship with an executive officer of its purchasing division through repeated acts of commercial bribery. Clearly, Kakiuchis Japan and America’s alleged interference with Genes-co’s employment contract with one of its officers does not “arise under” or “relate to” Genesco’s sales agreements with the defendants. In Altshul Stem, 385 F.2d at 159, we stated that the plaintiff-wholesaler’s allegation that the defendant-manufacturer induced plaintiff’s employee to violate his employment agreement was “on its face unrelated” to the textile sales contracts between the parties. Therefore, we denied arbitration of that claim. Id. Following that logic, Genesco’s tortious interference with contractual relations claim is not subject to arbitration. See Ssangyong, 708 F.2d at 1464 (count alleging a conspiracy to induce breach of a separate third-party contract was not subject to arbitration). Ill A Stay of the Proceedings Having found Counts I, IV, V, VIII and X arbitrable as to both defendants and Counts II and III arbitrable as to Kakiuchi-Japan, we must now decide whether to stay the remaining claims pending arbitration. The decision to stay the balance of the proceedings pending arbitration is a matter largely within the district court’s discretion to control its docket. See Moses H. Cone, 460 U.S. at 20 n. 23, 103 S.Ct. at 939 n. 23. Broad stay orders are particularly appropriate if the arbitrable claims predominate the lawsuit and the nonarbi-trable claims are of questionable merit. See, e.g., NPS Communications, Inc. v. Continental Group, Inc., 760 F.2d 463, 465 (2d Cir.1985); Samitri, 745 at 196-97. Here the district court declined to stay the proceedings because it found that only two of Genesco’s claims were arbitrable. This ruling should be re-evaluated by the district court in light of our opinion for" }, { "docid": "22289043", "title": "", "text": "et seq.; Coca-Cola denied any wrongdoing and claimed that under the distributorship agreement the termination dispute should be arbitrated. The district judge found that the agreement did require arbitration of the termination dispute, and he stayed proceedings on the Robinson-Patman claims until arbitration was completed. Plaintiff’s motion for a preliminary injunction was denied at the same time the judge ordered arbitration. We reverse the denial of the preliminary injunction because it appears, from the record before us, that the district court believed its decision to refer the dispute to arbitration stripped the court of power to grant injunctive relief. The fact that a dispute is to be arbitrated, however, does not absolve the court of its obligation to consider the merits of a requested preliminary injunction; the proper course is to determine whether the dispute is “a proper case” for an injunction. Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067 (2d Cir.1972); see Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). There is no indication in the case before us that the district court made such a determination. Since the district court’s decision was made on the basis of a paper record, without an evidentiary hearing, we are in as good a position as the district judge to determine the propriety of granting a preliminary injunction. See Jack Kahn Music Company v. Baldwin Piano & Organ Company, 604 F.2d 755 (2d Cir.1979). In our circuit a preliminary injunction will be issued when there is 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, 596 F.2d 70, 72 (2d Cir.1979). In the present case this test has been met. The loss of Roso-Lino’s distributorship, an ongoing business representing many years of effort and the livelihood of its husband and wife owners, constitutes irreparable harm." }, { "docid": "8239210", "title": "", "text": "a contractual obligation. Mark Gelfman was not a party to the contract. None of the claims are based on the theory of breached duties, nor does the contract impose upon Gelfman a duty not to infringe upon plaintiffs’ trademarks. h. Trademark Dilution, Fraud in Trademark Application, Tort Because I find that these claims must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), as discussed further below, I do not consider whether they must be arbitrated. 4. Conclusion With the exception of the conversion and fraud claims, plaintiffs’ claims are nonarbitrable, except to the extent that they seek to protect goodwill generated during the course of the contract, and to the extent that they allege that defendants did not have a right to use plaintiffs’ photographs for any purpose. C. Stay Pending Arbitration Pursuant to the FAA, if a matter is arbitrable, a stay of the litigation as to that matter is entered pending completion of the arbitration. See 9 U.S.C. § 3. In addition, issues not subject to arbitration may be stayed “pursuant to the power inherent in every court to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants.” WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 76 (2d Cir.1997) (internal quotation omitted). “Broad stay orders are ... appropriate if the arbitrable claims predominate the lawsuit and the nonarbitrable claims are of questionable merit.” Genesco, 815 F.2d at 856. In this case, the majority of plaintiffs’ claims are non-arbitrable. The two claims requiring arbitration are unrelated to the remaining claims. A broad stay order is therefore inappropriate. The conversion and fraud claims are stayed pending arbitration, and the remaining claims are not stayed. VI. Motion to Dismiss for Failure to State a Claim A. The Lanham Act Claims 1. Lanham Act Section 43(a) of the Lanham Act provides, in relevant part: “(1) Any person who, on or in connection with any ... services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin ..." }, { "docid": "23421078", "title": "", "text": "we have not had occasion to interpret the meaning of § 3, a number of other Circuits have done so. In Bradley, the Fourth Circuit stated: Section 3 does not contain a clear command abrogating the equitable power of district courts to enter preliminary injunctions to preserve the status quo pending arbitration. Instead, § 3 states only that the court shall stay the “trial of the action”; it does not mention preliminary injunctions or other pre-trial proceedings. Certainly Congress knows how to draft a statute which addresses all actions within the judicial power. Furthermore, nothing in the statute’s legislative history suggests that the word “trial” should be given a meaning other than its common and ordinary usage: the ultimate resolution of the dispute on the merits. See Senate Rep. No. 536, 68th Cong. 1st Sess. (1924); H.R.Rep. No. 96, 68th Congress, 1st Sess. (1924). Bradley, 756 F.2d at 1052 (footnote omitted). Based upon its analysis of § 3, the Fourth Circuit held that where a dispute is subject to mandatory arbitration under the Federal Arbitration Act, a district court has the discretion to grant a preliminary injunction to preserve the status quo pending the arbitration of the parties’ dispute if the enjoined conduct would render that process a “hollow formality.” The arbitration process would be a hollow formality where “the arbitral award when rendered could not return the parties substantially to the status quo ante.” Id. at 1053-54 (quoting Lever Bros. Co. v. International Chemical Workers Union, Local 217, 554 F.2d 115, 123 (4th Cir.1976)). Likewise, in Roso-Lino Beverage Distributors Inc. v. Coca-Cola Bottling Co. of New York, 749 F.2d 124 (2d Cir.1984) (per cu-riam), the Second Circuit held that “[t]he fact that a dispute is to be arbitrated, however, does not absolve the court of its obligation to consider the merits of a requested preliminary injunction; the proper course is to determine whether the dispute is a ‘proper case’ for an injunction.” Id. at 125. Furthermore, in Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348 (7th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214" }, { "docid": "5754676", "title": "", "text": "of arbitration proceedings in New York, equity requires that certain preliminary restraints be imposed. Even in a dispute which is considered arbitrable under the Federal Arbitration Act, a district court has the power to order preliminary relief, in order that the arbitration itself is not a “hollow formality.” See Ortho Pharmaceutical Corp. v. Amgen, Inc., 882 F.2d 806, 811 (3d Cir.1989); Roso-Lino Beverage Distributors v. Coca-Cola Bottling Co., 749 F.2d 124, 125 (2d Cir.1984) (per curiam). As Bosworth notes at page 16 of his brief, the Article 13 arbitration clause does not bar the Court from granting preliminary injunc-tive relief. The article states that “[a]ny provisional remedy which, but for this Agreement to arbitrate disputes, would be available at law, shall be available to the parties hereto pending arbitration.” The Third Circuit has stated that a district court, in determining whether to impose preliminary restraints pending arbitration, should use the analysis ordinarily employed for applications for preliminary injunctions. Ortho, 882 F.2d at 812-13. For the following reasons, the Court concludes that such relief is appropriate here. B. Preliminary Injunction Analysis The Third Circuit considers injunctive relief “an extraordinary remedy.” Instant Air Freight v. C.F. Air Freight, 882 F.2d 797, 800 (3d Cir.1989). The moving party must demonstrate (1) a likelihood of success on the merits and (2) the probability of irreparable harm if relief is not granted. In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir.1982). If relevant, the Court may also consider (3) the possibility of harm to other interested persons and (4) the public interest. Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir.1982) (in banc). 1. Likelihood of Success on the Merits Bosworth must establish a “reasonable probability of eventual success in the litigation.” Kershner, 670 F.2d at 443. The Third Circuit has said: [i]t is not necessary that the moving party’s right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits. Oburn v. Shapp, 521 F.2d" }, { "docid": "22289042", "title": "", "text": "PER CURIAM: Plaintiff Roso-Lino Beverage Distributors, Inc. (“Roso-Lino”) appeals from a judgment of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying plaintiffs motion for a preliminary injunction prohibiting defendant The Coca-Cola Bottling Company of New York, Inc. (“Coca-Cola”) from terminating plaintiffs Coca-Cola distributorship, granting defendant’s cross-motion for an order directing the parties to arbitrate the termination dispute, and staying further court proceedings on plaintiff’s other claims. We reverse the denial of plaintiff’s motion and grant a preliminary injunction; we affirm the district court’s order directing the parties to arbitrate, and we affirm the court’s stay of further proceedings. Roso-Lino had held a small Coca-Cola distributorship on the west side of Manhattan for approximately eleven years when, in early August, 1984, it was given notice by Coca-Cola that Roso-Lino’s distributorship was to be terminated one week later. Roso-Lino brought suit claiming that the termination was wrongful and that Coca-Cola had engaged in price discrimination among its distributors in violation of the Robinson-Patman Act, 15 U.S.C. § 13 et seq.; Coca-Cola denied any wrongdoing and claimed that under the distributorship agreement the termination dispute should be arbitrated. The district judge found that the agreement did require arbitration of the termination dispute, and he stayed proceedings on the Robinson-Patman claims until arbitration was completed. Plaintiff’s motion for a preliminary injunction was denied at the same time the judge ordered arbitration. We reverse the denial of the preliminary injunction because it appears, from the record before us, that the district court believed its decision to refer the dispute to arbitration stripped the court of power to grant injunctive relief. The fact that a dispute is to be arbitrated, however, does not absolve the court of its obligation to consider the merits of a requested preliminary injunction; the proper course is to determine whether the dispute is “a proper case” for an injunction. Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067 (2d Cir.1972); see Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). There is no" }, { "docid": "23031415", "title": "", "text": "of these factors, we hold that the district court’s order should be treated as a preliminary injunction appealable under § 1292(a)(1). II. THE EFFECT OF THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-14, ON THE DISTRICT COURT’S POWER TO GRANT PRELIMINARY INJUNCTIVE RELIEF Mostek contends that the policy of the Arbitration Act precludes the grant of preliminary injunctive relief in an arbitrable dispute. The district court has not yet determined whether or not this dispute is arbitrable. If Mostek’s argument is correct, then it clearly would have been an abuse of discretion for the court to issue this injunction before deciding the arbitrability question. If Mostek’s argument is not correct, however, and the Arbitration Act poses no bar to the grant of a preliminary injunction, then whether or not the dispute is arbitrable is irrelevant. Accordingly, the initial question to be determined is whether or not a preliminary injunction can be issued in an arbitrable dispute. The Arbitration Act does not address this issue specifically and it has not previously been ruled upon by this circuit. Other circuits, however, have examined the issue in some detail. The Second, Fourth and Seventh Circuits all take the view that a court can, and should, grant a preliminary injunction in an arbitrable dispute whenever an injunction is necessary to preserve the status quo pending arbitration. In Roso-Lino Beverage Distributors, Inc. v. The Coca-Cola Bottling Company of New York, 749 F.2d 124 (2d Cir.1984), the Second Circuit reversed the district court’s denial of a preliminary injunction because it “appear[ed], from the record ..., that the district court believed its decision to refer the dispute to arbitration stripped the court of the power to grant injunctive relief.” Id. at 125. Relying on its decision in Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir.1972), the Second Circuit held that the fact that the dispute was to be arbitrated did not “absolve the court of its obligation to consider the merits of a requested preliminary injunction,” and that the proper course for the district court was to determine whether the dispute was a “proper" }, { "docid": "8499484", "title": "", "text": "parties—presently before the trial court, but contemplating fur ther proceedings elsewhere — plan to conduct no further litigation in the district court. See Manning v. Energy Conversion Devices, Inc., 833 F.2d 1096, 1100-01 (2d Cir.1987); see also Guinness-Harp, 613 F.2d at 471. Both Nemer and Eagle Sales agree that the merits of their dispute — whether Eagle Sales legally granted four new franchises in the Albany market area — will be litigated in the arbitration forum. Therefore, Nemer’s request was not for a traditional preliminary injunction, and the district court erred in treating it as such. In fact, the circumstances we face are quite similar to those analyzed in Guinness-Harp. In that case a brewery sought to end its relationship with a beer distributor. The parties’ contract called for arbitration of disputes before the brewery terminated its distributor, and the distributor sought an injunction halting termination until arbitration was complete. In granting the injunction, we relied on the contract language and applied the equitable test for specific performance. See 613 F.2d at 471-72. Thus, the rule seems to be fairly established that where a party’s request for a status quo injunction pending arbitration is grounded in the words of a contract, specific performance analysis is required. See Connecticut Resources, 705 F.2d at 35; Erving, 468 F.2d at 1066-67. But cf. Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d 1049, 1052-54 (2d Cir.1990) (holding that district court has jurisdiction to issue status quo injunction pending arbitration but not deciding appropriate standard for injunc-tive relief); Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling Co. of N.Y., Inc., 749 F.2d 124, 125 (2d Cir.1984) (per curiam) (where underlying contract did not contain status quo provision, court applied preliminary injunction analysis in deciding whether to issue an injunction pending arbitration). Hence, we hold status quo injunctions pending arbitration are final in nature because the merits of the parties’ underlying dispute will be resolved by an arbitrator. Moreover, when a motion for such an injunction is based on a status quo provision in the parties’ contract, it must be analyzed under specific performance" }, { "docid": "8239198", "title": "", "text": "dispute concerns Gelfman’s show. Yuri Kuklachev’s right to control the content of the Kuklachev Show did not extend to the Gelfman Show. That there are two different shows at issue sets this case apart from other cases in which the courts have compelled arbitration. In Norcom Electronics, 104 F.Supp.2d 198, a case relied upon heavily by defendants, the court found that a distribution dispute regarding a certain brand of embossing machine related to a contract for the earlier distribution of that same brand of embossing machine, and therefore arbitration was required. Similarly, in Gidatex, 13 F.Supp.2d 420, there was a dispute regarding the distribution of furniture, following an agreement for the distribution of that same brand of furniture. Both Norcom and Gidatex consider disagreements where the subject of the contract was the same item as the subject of the disagreement, unlike in this case. b. Rights to the Moscow Cats Theatre Mark Plaintiffs’ first claim alleges that defendants infringed on plaintiffs’ “Moscow Cats Theatre” mark by promoting and conducting a tour of cat performances produced by Gelfman under the name “Moscow Cats Theatre.” The contract makes no mention of the “Moscow Cats Theatre” mark, nor does it mention intellectual property rights. Plaintiffs allege that they own the “Moscow Cats Theatre” mark, that defendants used this mark in commerce, and that confusion resulted. Two submissions by plaintiffs offered in conjunction with plaintiffs’ motion for a preliminary injunction against defendants indicated that audience members were confused by the Gelfrnan Show based on their long-term familiarity with the plaintiffs’ performances, not due to performances that took place during the 2005 and 2006 seasons while plaintiffs were performing pursuant to the contract. See Letter from Natalya Goncharova, Affidavit of Nina Mavrodi. Therefore, the facts underlying the “Moscow Cats Theatre” claim do not implicate the contract. No contract interpretation is required to adjudicate the parties’ rights to the mark, nor does plaintiffs’ claim of rights to the “Mos-cow Cats Theatre” mark present any question as to the parties’ rights and duties under the contract. c. Copyright Claim eleven of the complaint alleges that defendants copied" }, { "docid": "22396616", "title": "", "text": "at 1464 (count alleging a conspiracy to induce breach of a separate third-party contract was not subject to arbitration). Ill A Stay of the Proceedings Having found Counts I, IV, V, VIII and X arbitrable as to both defendants and Counts II and III arbitrable as to Kakiuchi-Japan, we must now decide whether to stay the remaining claims pending arbitration. The decision to stay the balance of the proceedings pending arbitration is a matter largely within the district court’s discretion to control its docket. See Moses H. Cone, 460 U.S. at 20 n. 23, 103 S.Ct. at 939 n. 23. Broad stay orders are particularly appropriate if the arbitrable claims predominate the lawsuit and the nonarbi-trable claims are of questionable merit. See, e.g., NPS Communications, Inc. v. Continental Group, Inc., 760 F.2d 463, 465 (2d Cir.1985); Samitri, 745 at 196-97. Here the district court declined to stay the proceedings because it found that only two of Genesco’s claims were arbitrable. This ruling should be re-evaluated by the district court in light of our opinion for it to determine on balance whether there should be a stay. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). CONCLUSION To summarize, we affirm the holding of nonarbitrability of the tortious interference with contractual relations claims but remand the claim to the district court to consider whether it should be stayed pending arbitration. Genesco’s unjust enrichment, money had and received, and unfair competition claims against both Kakiuchis Japan and America are within the scope of the parties’ arbitration provisions. Accordingly, we reverse the district court’s denial of a stay as to those claims. We also reverse the district court’s denial of a stay as to Genesco’s fraud, RICO, and Robinson-Patman claims against Kakiuchi-Japan. Finally, we remand Genesco’s RICO and Robinson-Patman claims against Kakiuchi-America to the district court for further proceedings in light of the Supreme Court’s forthcoming decision in Shearson/Ameri-can Express v. McMahon, — U.S. -, 107 S.Ct. 60, 93 L.Ed.2d 20 (1986). Affirmed in part; reversed and remanded in part. . Peel Textiles, Ltd., Genesco’s" }, { "docid": "15603817", "title": "", "text": "185 (1987), the Supreme Court found “no basis for concluding that Congress intended to prevent enforcement of agreements to arbitrate RICO claims.” Id. at 242, 107 S.Ct. 2332; see also, e.g., Gilmer, 500 U.S. at 26, 111 S.Ct. 1647; Genesco, 815 F.2d at 851-852. Having found that Plaintiffs’ RICO claim is arbitrable, the Court notes that Plaintiffs’ “pendent state law claims are also arbitrable.” Norcom Electronics Corp. v. CIM USA Inc., 104 F.Supp.2d 198, 206 (S.D.N.Y.2000) (internal quotation marks and citations omitted). D. Staying or Dismissal of Claims Although staying, and not dismissing, all arbitrable claims is a remedy specifically contemplated by the FAA, see 9 U.S.C. § 3, “[a]ll courts of which we are aware have followed the rule that, [w]here all of the issues raised in the Complaint must be submitted to arbitration, the Court may dismiss an action rather than stay proceedings.” Spencer-Franklin v. Citigroup/Citibank N.A., No. 06 Civ. 3475(GBD)(GWG), 2007 WL 521295, at *4 (S.D.N.Y. Feb. 21, 2007) (internal quotation marks and citations omitted) (second alteration in original) (collecting cases). “Thus, where defendants have sought dismissal rather than a stay, courts in this district have granted dismissal.” Id. (collecting cases); see also, e.g., Mazza Consulting Group, Inc. v. Canam Steel Corp., No. 08 Civ. 38(NGG), 2008 WL 1809313, at *7 (E.D.N.Y. Apr.21, 2008); Valdes v. Swift Transp. Co, Inc., 292 F.Supp.2d 524, 534 (S.D.N.Y.2003); Lewis Tree Serv., Inc. v. Lucent Technologies, Inc., 239 F.Supp.2d 332, 340 (S.D.N.Y.2002); Mahant v. Lehman Bros., No. 99 Civ. 4421(MBM), 2000 WL 1738399, at *3 (S.D.N.Y. Nov.22, 2000). IV. Conclusion For the foregoing reasons, Defendants’ motion to compel arbitration is GRANTED. Accordingly, the Court dismisses the Complaint without prejudice and compels Defendants to arbitrate its claims pursuant to the terms set forth in the Subscription Agreements. Plaintiffs are hereby granted leave to re-file within thirty days after the arbitration is completed if they wish to seek further relief from this Court. The Clerk of Court shall enter judgment accordingly and this case shall be closed. SO ORDERED. . See also infra note 10. . This is in contrast to the substantive" }, { "docid": "15603816", "title": "", "text": "instructions that “there is a presumption of arbi-trability in the sense that [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute,” AT & T Techs., 475 U.S. at 650, 106 S.Ct. 1415 (internal quotation marks and citations omitted) (emphasis added), and that “[d]oubts should be resolved in favor of coverage,” id., the Court finds that Plaintiffs’ claims do not “arise[] from or in connection with the termination of th[e] Subscription agreement.” Accordingly, the Court holds that Plaintiffs’ claims fall within the broadly written arbitration clause that covers “any claim or controversy whatsoever” between the parties. C. Arbitrability of Federal Claims The third inquiry involves the arbitrability of any federal statutory claims asserted. Plaintiffs assert only one federal statutory claim, a violation of RICO. (See Compl. ¶¶ 92-107.) Arbitration agreements relating to RICO claims are indisputably enforceable. In Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), the Supreme Court found “no basis for concluding that Congress intended to prevent enforcement of agreements to arbitrate RICO claims.” Id. at 242, 107 S.Ct. 2332; see also, e.g., Gilmer, 500 U.S. at 26, 111 S.Ct. 1647; Genesco, 815 F.2d at 851-852. Having found that Plaintiffs’ RICO claim is arbitrable, the Court notes that Plaintiffs’ “pendent state law claims are also arbitrable.” Norcom Electronics Corp. v. CIM USA Inc., 104 F.Supp.2d 198, 206 (S.D.N.Y.2000) (internal quotation marks and citations omitted). D. Staying or Dismissal of Claims Although staying, and not dismissing, all arbitrable claims is a remedy specifically contemplated by the FAA, see 9 U.S.C. § 3, “[a]ll courts of which we are aware have followed the rule that, [w]here all of the issues raised in the Complaint must be submitted to arbitration, the Court may dismiss an action rather than stay proceedings.” Spencer-Franklin v. Citigroup/Citibank N.A., No. 06 Civ. 3475(GBD)(GWG), 2007 WL 521295, at *4 (S.D.N.Y. Feb. 21, 2007) (internal quotation marks and citations omitted) (second alteration in original) (collecting cases). “Thus," } ]

[ { "docid": "7659627", "title": "", "text": "to something that may result in injury, if not arrested, averted, or avoided by prompt action, notice should be precise and definite, and be given as soon as possible. Notice of this character may enable the party notified to make proper preparation to meet the emergency. If an event has already occurred, and the situation cannot he changed, and a short delay will produce no material disadvantage, then such notice will be sufficient as will enable a party to make an easy investigation of the causes and attendant circumstances, and thus obtain accurate information as to the transaction. As a general rule, notice to an agent who has conducted or has boon active as a party to a transaction, is sufficient constructive notice to his principal in reference to such matter. In this case, the evidence, if believed, shows that the plaintiff, on the morning after the destruction of the whisky by lire, gave notice of the occurrence to the local agents of the defendant, and they, at his instance, at once communicated the fact to a general agent of the company at Charleston, South Carolina, who, in a short time afterwards, acknowledged the receipt of such letter, and promised to send an examiner to investigate and adjust the matter. The stipulation in the policy required the plaintiff to give written notice of his loss, Jmihmth, to the company. This kind of notice is sufficient, when given with due diligence, under the circumstances of the case. When there are disputes about the attendant facts and circumstances, the jury must determine the matter. When there is no controversy about the facts caused by a conflict of testimony, the court may decide the matter as a question of law. Upon this subject I instruct you that the notice was sufficient, and given in reasonable time, if you believe the uncontradicted testimony of the plaintiff. On the next issue, involving the truth and sufficiency of the proof of loss; the evidence shows that the whisky was destroyed on the night of the twenty-fourth day of December, 1884, and the “proof of loss” was" } ]

[ { "docid": "17792222", "title": "", "text": "the plaintiff in error, broadly stated, is that, by the terms of this provision, the conditions contained in the policy, against alienation and change of possession do not affect his right to recover, because there was not written upon or attached to the policies any statement or writing showing the manner or extent to which such conditions should apply to the interest which he had in the policies as the person to whom the loss thereunder is made payable. This contention is sustained by a number of decided cases, among which are the following: Oakland Home Insurance Co. v. Bank of Commerce, 47 Neb. 717, 66 N. W. 646, 36 L. R. A. 673, 58 Am. St. Rep. 663; Queen’s Insurance Co. v. Dearborn Savings Ass’n, 175 Ill. 115, 51 N. E. 717; Christensen v. Fidelity Ins. Co., 117 Iowa, 77, 90 N. W. 495, 94 Am. St. Rep. 286; Boyd v. Thuringia Insurance Co., 25 Wash. 453, 65 Pac. 785, 55 L. R. A. 165; Edge v. St. Paul Fire & Marine Ins. Co. (S. D.) 105 N. W. 281; Welch v. British Assurance Company, 148 Cal. 223, 82 Pac. 964, 113 Am. St. Rep. 223. These cases all hold that a stipulation in a policy like that above quoted is to be construed as an agreement upon the part of the insurance company issuing it that the conditions of the policy to which the stipulation refers shall not apply to the interest vested in a mortgagee by a memorandum clause, making the loss, if any,, payable to him as his interest may appear, unless the manner in which such conditions are to be applied are expressly stated in some writing indorsed upon or attached to the policy. The contrary was however held by the Circuit Court of Appeals lor the Eighth Circuit in Delaware Ins. Co. v. Greer, 120 Fed. 916, 57 C. C. A. 188, 61 L. R. A. 137, and by Judge Wolverton in Vancouver National Bank v. Law, Union & Crown Ins. Co. (C. C.) 153 Fed. 440. We think the cases last cited announce" }, { "docid": "4216630", "title": "", "text": "the policy was purchased and follow the instructions of the adjuster. He assumed that these professional insurance people would advise him of how to properly file a claim. He was certain that the information given Soileau was sufficient especially since Soileau told him that his claim would be considered and remained silent when specifically requested to advise if any additional information was needed. Soileau was authorized to handle the proof of loss phase of Plaintiff’s claim and was at all times aware of the policy requirements, yet the evidence indicates that he never mentioned proof of loss to Plaintiff during their discussions. Under these facts, can it be said that Defendants waived a formal proof of loss? Texas courts have repeatedly held that this requirement is designed for the benefit or protection of the insurer and may be waived by the company or its authorized agents. 82 Tex.Jur.2d § 381 at 589 (1962). To establish a waiver the insured must show that the insurer, with full knowledge of the facts, did or failed to do something inconsistent with an intention to exercise its rights. King v. Commercial Union Ins. Co. of N. Y., 306 F.Supp. 9 (N.D.Tex.1969). Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. United States Fidelity & Guaranty Co. v. Bimco Iron Corp., 464 S.W.2d 353 (Tex.1971). With respect to waiver the acts of an authorized adjuster are, in effect, the acts of the company. United States Fidelity & Guaranty Co., supra. Under Texas law Soileau’s silence without more would not amount to a waiver. It is well established that mere silence on the part of the insured with knowledge that a loss has occurred and that no proof of loss has been filed is not an intentional relinquishment of the proof of loss requirement or conduct inconsistent with claiming it. This rule has even been applied where the insured was in jail and thus incapable of filing a proof of loss without some assistance from the insurer. Williams v. Bankers Fire and Marine Ins. Co., 277 S.W.2d 742 (Tex.Civ.App.1955)." }, { "docid": "12639231", "title": "", "text": "Co., 300 Pa. 555, 151 A. 285. If the insurer induces the insured to believe that no further action on his part is necessary as a prerequisite to payment, or that action other than submission of proofs would be accepted by the company as a basis of payment, formal proofs may be deemed waived. Hartford Fire Insurance Co. v. Kiser, 4 Cir., 64 F.2d 288. See also National Mutual Fire Insurance Co. v. Sprague, 40 Colo. 344, 353, 92 P. 227; Reliance National Life Insurance Co. v. Wolverton, 88 Colo. 353, 296 P. 793. Even negotiations for an adjustment in the absence of notice to the contrary may be sufficient ground for plaintiff’s assumption that no further or more formal proofs of loss were necessary. Niagara Fire Insurance Co. of New York, N. Y. v. Raleigh Hardware Co., 4 Cir., 62 F.2d 705. And an adjustor going to the scene of a fire loss and informing himself generally as to the situation, has power to waive a formal proof of loss. Firemen’s Insurance Co. v. Brooks, 6 Cir., 32 F.2d 451, 65 A.L.R. 909. Under the circumstances shown by the record, the Court is of the opinion that the submission of formal proofs of loss was waived by the defendant. Such waiver appears not only from the evidence adduced by the plaintiff but also it is indicated by the evidence presented by the defendant. If there is any question as to the sufficiency of the pleadings to make effective this defense of waiver, particularly in view of the amendment already allowed, the pleadings will be deemed further amended to conform to the proof. Passing now to the matter which the Court primarily reserved for further consideration — the amount the plaintiff is entitled to recover herein by reason of the fire loss: I was not, and am not, convinced that the loss is as great as claimed by the plaintiff, nor as little as conceded by the defendant; hence, an examination should be made of the standards by which such loss may be determined and of the evidence indicating its" }, { "docid": "21343338", "title": "", "text": "in the bond has been accomplished. Formal proof of loss would not have added anything in this case to what the surety had already learned from the Department of Banking and Insurance, from the plaintiff company and from its own investigation and examinations. The utmost frankness and fair dealing prevailed between the defendant, on the one. hand, and the department and plaintiff, on the other. There was no express waiver of the necessity of filing a claim, within time, showing the items and dates of loss, but waiver may be inferred from the aets of the parties, and under the circumstances of this ease, failure to file formal proof of loss does not constitute a defense. Higgins v. Fidelity-Phoenix Insurance Co., 107 N. J. Law, 175, 151 A. 869; Hurt v. Employers’ Liability Assur. Corp’n (C. C.) 122 F. 828; Larkin v. Glens Falls Insurance Co., 80 Minn. 527, 83 N. W. 409, 81 Am. St. Rep. 286; Montana Auto Finance Corp’n v. Federal Surety Co., 85 Mont. 149, 278 P. 116; Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. 568; Simons v. Safety Mutual Fire Insurance Co., 277 Pa. 200, 120 A. 822; Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 151 A. 285. It is unnecessary, therefore, to consider the adequacy of the proof of loss and the time within which it should have been filed. On a review of the entire ease, we do not find that the learned District Judge committed error in directing a verdict, for it does not appear that the surety had a defense, and the judgment is affirmed. Case No. 4708. This is an appeal from a judgment entered upon a directed verdict in favor of the New Amsterdam Casualty Company, hereinafter called the defendant, as it was in the District Court. The suit was brought to recover $8,000 on a bond on which the defendant was surety. The condition of the bond was that the nfin-cipals, Paul R. Silberman, Robert D. Gros-man, and Charles M. Grosman, doing business as Silberman & Grosman, attorneys of the Peace Building" }, { "docid": "6016321", "title": "", "text": "is no duty to report. Phoenix Indemnity, supra, 176 F.2d at 247.” As we recently noted in Abilene Savings Ass’n v. Westchester Fire Ins. Co., 461 F.2d 557 (5th Cir., 1972): “The general rule in Texas is that furnishing timely proof of loss, where such is an express requirement of an insurance contract, is a condition precedent to recovery in the absence of waiver or estoppel.” Members Mutual Ins. Co. v. Cutaia, 476 S.W.2d 278 (Tex., 1972). While it is a harsh rule to which the Texas Supreme Court has committed us, it is a rule which recognizes that mitigating circumstances may exist which call for the invocation of the doctrinal policy against forfeitures. Abilene Savings Ass’n v. Westchester Fire Ins. Co., supra, at-. For the insured to prevail (Van Pendley here cannot assert any better claim than the insured), he must present evidence of a reasonable and legally sufficient excuse for failing to provide the notice of loss within the time allowed by the insurance contract, Abilene Savings Ass’n v. Westchester Fire Ins. Co., supra, at note 4; Love v. Northwestern National Life Ins. Co., 119 F.2d 251 (5th Cir., 1941), or he must be able to show by a preponderance of the evidence that the Thomases gave notice within a reasonable time after they knew of the accident and that they did not know of the accident until they received the summons issued in the state action. At the close of appellant’s case the district court was of the mind that appellant had failed to sustain his burden of proof. Wisely, however, he utilized the procedure approved in Malone & Hogan Hospital Foundation v. Boston Ins. Co., 378 F.2d 362 (5th Cir., 1967), and submitted all possible fact questions to the jury. The jury in this case was charged to answer a single unobjected to interrogatory : “Do you find from a preponderance of the evidence that notice of particulars sufficient to identify the insured Homer Lee Thomas, and reasonably obtainable information with respect to time, place and circumstance of the accident in question which occurred on February" }, { "docid": "9684491", "title": "", "text": "estoppel through conduct of an agent is concerned, hinges upon his ability to show that Beere’s conduct would have misled a reasonable man, and did so mislead the plaintiff to his detriment. Since Beere was silent at a time when he would reasonably be required to speak, the court holds that no waiver or estoppel can be founded on this agent’s conduct. This conclusion is re-enforced by the authority of the federal cases holding that the insured, under a policy requiring waiv ers to be indorsed thereon, is put on notici as to the limitations on the agent’s authori ty. Decisions tend to indicate that the courts may ultimately hold that such notice is not conclusive. However, this line of authority bears strongly on the questions of the actual scope of the agent’s authority, the reasonableness of plaintiff’s reliance, and the manner in which the actual exercise of the agent’s authority is to be attested. Sun Ins. Office v. Scott, 284 U.S. 177, 52 S.Ct. 72, 76 L.Ed. 229 ; Eddy v. National Indemnity Co., 9 Cir., 78 F.2d 545; Northwestern Nat. Ins. Co. v. McFarlane, 9 Cir., 50 F.2d 539; Mulrooney v. Royal Ins. Co., 8 Cir., 163 F. 833; Adalian’s, Inc., v. Fidelity-Phenix Fire Ins. Co., 5 Cir., 81 F.2d 226; Fire Ass’n v. Nime, 5 Cir., 9 F.2d 28. Plaintiff also contends that the retention of the unearned premium by the insurance company precludes the defendant from claiming a forfeiture. Plaintiff concedes, and the court construes the cases cited by plaintiff to mean, at most, that the retention constitutes a waiver or raises an estoppel only when the knowledge of the breach of condition is communicated to the insurer or its duly authorized agent before the time of loss, (Goorberg v. Western Assurance Co., 150 Cal. 510, 89 P. 130, 10 L.R.A.,N.S., 876, 119 Am.St.Rep. 246, 11 Ann. Cas. 801) but after the issuance of the policy. Leithauser v. Hartford Fire Ins. Co., 6 Cir., 78 F.2d 320. In this case, there is no sufficient evidence that the defendant, prior to the time of loss, was notified" }, { "docid": "8343106", "title": "", "text": "The premium charged is or should be measured by the hazard assumed. The premium on an insurance contract such as the one involved here which requires prompt notice ought to be one which would be entirely insufficient to carry a policy which provided that notiee should be deemed sufficient if given within two years from the time of the accident. This merely illustrates the importance of giving effect to the terms of the contract of insurance substantially as they are agreed to.” Some of the state courts have adhered to the same rule. In Hagstrom et al. v. American Fidelity Co., 137 Minn. 391, 163 N. W. 670, at page 671, it was stated: “The court below construed the provision of the contract above quoted as one requiring the service of the notice within a reasonable time, and submitted the question of reasonableness to the jury. That view of the contract is in harmony with the authorities, including our own decisions. Fletcher v. Ins. Co., 79 Minn. 337, 82 N. W. 647; Ermentrout v. Girard Fire & Marine Ins. Co., 63 Minn. 305, 65 N. W. 635, 30 L. R,. A. 346, 56 Am. St. Rep. 481; 24 Harvard L. Rev. 580. But we think the question whether the service was made within a reasonable time, the facts not being in dispute, was one of law, and should have been disposed of accordingly. “The object and purpose of this provision of the policy was to afford the company an opportunity to make an early and prompt investigation into the claim of loss or injury, not only to learn and ascertain the facts with respect thereto, but also to protect .itself from a possible fraudulent and fictitious claim. If there he long delay, this purpose of the contract may be wholly defeated, and the insurer deprived of the right to early information in reference to the merits of the claim. The facts may be concealed, witnesses scatter and disappear, rendering a delayed investigation without substantial results. We have heretofore held that the requirement of notice is of the essence of the" }, { "docid": "20948572", "title": "", "text": "at the time of the fire unless it was can-celled prior to that time. The policy covered all interests in the property, and when the loan was discharged the Manns became the beneficial owners of the policy and entitled to enforce it. Hence, defendant’s first contention is rejected. II. Mor can the Court agree with defendant that the policy was cancelled before the fire. The policy provided that it might be cancelled at any time at the request of the insured. Obviously, it was contemplated that the request for cancellation should be communicated to the defendant or to one of its agents. A completely uncommunieated desire for cancellation or a request for cancellation communicated to some third person would not be sufficient. See 45 C.J.S. Insurance § 458, pp. 116-117, and cases there cited. It is established law in Arkansas that, where an insurance company seeks to cancel a policy by the giving of notice as authorized by the instrument, the notice must be communicated to the insured or to his authorized agent, otherwise the attempted cancellation is ineffective. Merrimack Mutual Fire Ins. Co. v. Scott, 219 Ark. 159, 240 S.W.2d 666; Commercial Union Fire Ins. Co. v. King, 108 Ark. 130, 156 S.W. 445. There is no reason to believe that the Supreme Court of Arkansas would not subscribe to the converse of that proposition. Granting defendant’s premises that Mann wished to have the Chartér Oak policy cancelled, that his wife was bound by his wishes, that he directed the Trinity agent, Jackson, to procure a cancellation, and that Jackson’s directives to Wright, either oral or written, were sufficiently definite and unequivocal to effect a cancellation, the fact remains that those directives were not given to an agent of Charter Oak but to an agent of First Federal and Charter Oak did not learn of them until after the fire. Cancellation operates prospectively only, and a request for cancellation communicated to the company after the loss would not be effective to absolve the company from liability already accrued. 45 C.J.S. Insurance § 459, supra; American Employers’ Liability Ins. Co." }, { "docid": "8343108", "title": "", "text": "contract, a condition precedent, and if the delay be such as to defeat the purpose of the contract, and deprive the insurer of the opportunity of an early investigation into the loss, there is a breach of the contract by the insured which will forfeit his right of indemnity.” In Friedman v. Orient Ins. Co., 278 Mass. 596, 180 N. E. 617, at page 618, it is said: “Immediate notice of the loss in writing, required by the terms of the contract, was a condition precedent to recovery in this action. The burden of proving performance, or excuse for nonperformance, was on the plaintiff. Hatch v. United States Casualty Co., 197 Mass. 101, 105, 106, 83 N. E. 398, 14 L. R. A. (N. S.) 503, 125 Am. St. Rep. 332, 14 Ann. Cas. 290; McCarthy v. Rendle, 230 Mass. 35, 119 N. E. 188, L. R. A. 1918E, 111; Wilcox v. Massachusetts Protective Association, Inc., 266 Mass. 230, 165 N. E. 429; Vasaris v. National Liberty Ins. Co. of America, 272 Mass. 62, 66, 172 N. E. 99; Hannuniemi v. Carruth, 278 Mass. 230, 179 N. E. 597, and cases cited.” In Gifford v. New Amsterdam Casualty Co. (Iowa) 248 N. W. 235, at page 236, is the following language: “That notice was given as soon as practicable under the facts and circumstances existing at the time of the accident is not open to doubt. It then becomes a question whether it was given within a reasonable length of time, under all the facts and circumstances.” In Gullo v. Commercial Casualty Ins. Co., 226 App. Div. 429, 235 N. Y. S. 584, at page 588, in a decision by the Appellate Division, the following significant language is found: “The court explicitly charged the jury that, if no such conversation occurred, but .that there was simply a delay from the 18th day of February to March 3d, without any reason for delay in sending the notice, then the jury could not find for the plaintiff. “We agree with the trial court that the written notice given on March 3d, in" }, { "docid": "12639230", "title": "", "text": "claim, during repeated conferences in which invoices, statements and other material which plaintiff attempted to supply were mentioned, and notwithstanding the travel of plaintiff’s representative from place to place in an apparent effort to meet defendant’s requirements, not once did defendant suggest or infer that a sworn proof of loss was desired or expected. On the contrary, it and its representatives indicated by conduct and attitude so strongly as to amount almost to an affirmative representation that settlement would be made without formal sworn proof of loss upon plaintiff’s supplying invoices or upon the elimination of various items for which invoices were not submitted. Failure to promptly pay the amount of the claim was explained repeatedly on grounds other than any failure to submit sworn proof of loss. A waiver may be shown by parol in express terms or by necessary implication, and acts or a course of conduct evidencing a recognition of liability, or a denial of liability on grounds other than the failure to file proof, may constitute a waiver. Fedas v. Insurance Co., 300 Pa. 555, 151 A. 285. If the insurer induces the insured to believe that no further action on his part is necessary as a prerequisite to payment, or that action other than submission of proofs would be accepted by the company as a basis of payment, formal proofs may be deemed waived. Hartford Fire Insurance Co. v. Kiser, 4 Cir., 64 F.2d 288. See also National Mutual Fire Insurance Co. v. Sprague, 40 Colo. 344, 353, 92 P. 227; Reliance National Life Insurance Co. v. Wolverton, 88 Colo. 353, 296 P. 793. Even negotiations for an adjustment in the absence of notice to the contrary may be sufficient ground for plaintiff’s assumption that no further or more formal proofs of loss were necessary. Niagara Fire Insurance Co. of New York, N. Y. v. Raleigh Hardware Co., 4 Cir., 62 F.2d 705. And an adjustor going to the scene of a fire loss and informing himself generally as to the situation, has power to waive a formal proof of loss. Firemen’s Insurance Co. v." }, { "docid": "7835852", "title": "", "text": "time the fire was burning was sufficient to warrant the eobclusion that the proofs of loss were furnished within the time limited by the policy; but this would he a question for the jury. The faitee to submit it to the jury is immaterial, however, in the view that we take of the West Virginia law which we shall presently discuss. And wo agree, also, that the defendants would he held to have waived the condition requiring that proofs of loss be furnished within sixty days, if failure to comply with such condition resulted in a forfeiture under the laws of West Virginia. They entered into neg'otiations with plaintiff looking to an adjustment of the loss. In the course of the negotiations they were furnished by plaintiff with plans and specifications of the burned building and other information usually contained in proofs of loss. By their investigation of the fire and through their dealings with plaintiff, they secured all the information which the proofs were designed to furnish; and the negotiations for an adjustment were, in the absence of notice to the contrary, sufficient ground for plaintiff’s assuming that no further or moro formal proofs of loss were necessary. Plaintiff’s delay in furnishing the proofs of loss was in a very real sense, therefore, tho result of the conduct of the defendants, and it would he unconscionable to allow defendants to take advantage of tho delay. If the provision of the policy requiring proofs of loss within sixty days were a condition of recovery, defendants would be held to have waived it by their conduct, or, what is the same thing, would he estopped to assert it. Concordia Ins. Co. v. School District, 282 U. S. 545, 550, 51 S. Ct. 275, 75 L. Ed. 528; Id. (C. C. A. 10th) 40 F.(2d) 379; Firemen’s Ins. Co. v. Brooks (C. C. A. 6th) 32 F.(2d) 451, 65 A. L. R. 909; Continental Ins. Co. v. Fortner (C. C. A. 6th) 25 F.(2d) 398; Lusk v. American Cent. Ins. Co., 80 W. Va. 39, 91 S. E. 1078; American Ins. Co." }, { "docid": "6224080", "title": "", "text": "notice sufficient to allow Hartford’s surveyor to be represented at all of the damage surveys. The trial judge found that it was undisputed that the insured sent Hartford notices of the accidents prior to the survey of any of the scows, that the latter was represented by a surveyor at the time each survey was conducted on each scow and that all of the scows were jointly surveyed before the insurance policies expired. And he properly concluded that the notice requirement of the policies was therefore fully met. In addition we wish to point out that the insured in a series of notices advised Hartford of specific accidents beginning as early as May 24, 1965. Meetings were held in June and July, 1965, with the brokers at which the recurring accident claims were discussed. While Hartford had no one present from its offices the brokers were the joint representatives for claim purposes. While Hartford took no action on any of these meetings or notices on the ground that none of them individually exceeded $5000.00 in damage, it is admitted that 212 claim letters were filed with it by the insured. These indicate themselves that the losses were heavy and serious. Indeed Hartford conducted surveys on every scow on which damage was reported. At the request of the insured Hartford met with it on January 26, 1966, to discuss the claims. Hartford disclaimed liability after this meeting on the ground of no coverage despite the fact that its right to attend the surveys depended entirely on the continued coverage of the policies and notice of claims thereunder. At no time was there any question raised as to the timeliness of the notices of loss until the amended answer was filed in May, 1968. In a long line of decisions such a course of action raises questions of estoppel and waiver. See Brink v. Hanover Fire Ins. Co., 80 N.Y. 108, 113 (1880); Dobson v. Hartford Fire Ins. Co., 86 App.Div. 115, 83 N.Y.S. 456 (4th Dept. 1903), aff'd, 179 N.Y. 557 (1904); American Merchant Marine Ins. Co. v. Margaret M. Ford" }, { "docid": "2265733", "title": "", "text": "Ginsburg was disabled from following any occupation for which she was suited by education, training, and experience. In summary, then, we hold that the District Court erred in granting judgment notwithstanding the verdict. However, we feel obliged to discuss certain procedural points. First, appellant claims that she is entitled to interest from February 6, 1967 (i. e., from one year after the accident). The rule in Kentucky is that if the amount of damages is liquidated, interest follows as a matter of right. General Accident Fire & Life Assurance Corp. v. Judd, 400 S.W.2d 685, 687 (Ky.1966). Here, the amount of the damages was the principal amount of the policy, a liquidated sum. INA argues that the amount was not liquidated, because in her original prayer for relief in the state court, appellant sought damages over and above the policy amount. However, these claims were not submitted to the jury. Under the circumstances, we determine that appellant’s claim for interest should be granted. Second, appellee contends that plaintiff is barred from recovery by her failure to file timely proof of loss, as required by the policy. Both parties agree that proof of loss was not so filed. Plaintiff claims that this obligation was excused by defendant’s failure to object “specifically and with particularity” as required by Rule 9(c), Fed.R.Civ.P., which reads: In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity. Here plaintiff, in her request for admissions, affirmatively pleaded performance of conditions precedent under the policy. Such a pleading meets the requirements of Rule 9(c). Lumbermens Mut. Ins. Co. v. Bowman, 313 F.2d 381, 387 (10th Cir. 1963). INA made only a general denial of this pleading, and consequently failure to file proof of loss did not become an issue in this case. Ibid. The remaining issue raised by appellee does not merit discussion. Accordingly, we hold that the judgment of the District Court should be reversed, and we remand the" }, { "docid": "9684492", "title": "", "text": "9 Cir., 78 F.2d 545; Northwestern Nat. Ins. Co. v. McFarlane, 9 Cir., 50 F.2d 539; Mulrooney v. Royal Ins. Co., 8 Cir., 163 F. 833; Adalian’s, Inc., v. Fidelity-Phenix Fire Ins. Co., 5 Cir., 81 F.2d 226; Fire Ass’n v. Nime, 5 Cir., 9 F.2d 28. Plaintiff also contends that the retention of the unearned premium by the insurance company precludes the defendant from claiming a forfeiture. Plaintiff concedes, and the court construes the cases cited by plaintiff to mean, at most, that the retention constitutes a waiver or raises an estoppel only when the knowledge of the breach of condition is communicated to the insurer or its duly authorized agent before the time of loss, (Goorberg v. Western Assurance Co., 150 Cal. 510, 89 P. 130, 10 L.R.A.,N.S., 876, 119 Am.St.Rep. 246, 11 Ann. Cas. 801) but after the issuance of the policy. Leithauser v. Hartford Fire Ins. Co., 6 Cir., 78 F.2d 320. In this case, there is no sufficient evidence that the defendant, prior to the time of loss, was notified at its home office or through any of its regular officers or agents (other than Beere) of the circumstances. Nor is there any evidence to show that Beere himself ever informed the company of the facts. Hence it again becomes necessary to prove that Beere’s authority was broad enough to make him a general agent of the defendant, since only through an authorized- agent can knowledge of the removal be deemed in law to have reached the defendant. Eddy v. National Indemnity Co., 9 Cir., 80 F.2d 284, on rehearing. Surratt v. Fire Ass’n, 4 Cir., 43 F.2d 467. However, the court is impelled to find that Beere had no more authority to bind the defendant by receiving notices on its behalf than he did to waive conditions in the policies. Even had such authority been established, a brief consideration of the reason underlying the rule which plaintiff cites will reveal that it is inapplicable here. Such a rule rests on the theory that an insurer cannot retain the benefits, or premium payments, at the" }, { "docid": "8572187", "title": "", "text": "Insurance Co., Ill Mass. 93, 110. In some of the more recent cases it has also been ruled that the provision in question may be waived by acts done by the insurer after the time has expired within which no tice and proofs are required to be submitted, and that no new consideration is necessary to support a waiver of that character. In the case of Prentice v. Insurance Co., 77 N.Y. 483, 489 [33 Am. Rep. 651], where the policy required notice of death to be forthwith given and .full proofs to be submitted within twelve months, and no notice or proofs were submitted for more than two years after the death occurred, Andrews, J., said, in affirming the judgment against the insurer: “ ‘It is now understood to be the doctrine of this court that no new consideration is required to support a waiver by an insurance company of a condition in respect to the time of serving proofs of loss, and that it may be done by acts or conduct occurring subsequently to the breach of the condition indicating an intention to waive such condition, although there is no new consideration, and although there may be no technical estoppel.’ “The same remark was repeated by Church, C. J., in Brink v. Insurance Co., 80 N.Y. 108, 112, and it was further said that— “ ‘The filing of proofs of loss by a specified time is a condition made for the benefit of the company, which it may avail itself of or not; and - if - it determine to waive it, it cannot afterwards recall the waiver, and insist upon the forfeiture.’ “In the case of Goodwin v. Insurance Co., 73 N.Y. 480, 496, the court of appeals of- that state further declared that — • “ ‘When an insurance company, by means of its officers or agents, in response to a claim for a loss, fails to say anything about the time of presenting the proofs after it has expired, but claims some other defense, the presumption is that it does not intend to interpose any" }, { "docid": "7835853", "title": "", "text": "in the absence of notice to the contrary, sufficient ground for plaintiff’s assuming that no further or moro formal proofs of loss were necessary. Plaintiff’s delay in furnishing the proofs of loss was in a very real sense, therefore, tho result of the conduct of the defendants, and it would he unconscionable to allow defendants to take advantage of tho delay. If the provision of the policy requiring proofs of loss within sixty days were a condition of recovery, defendants would be held to have waived it by their conduct, or, what is the same thing, would he estopped to assert it. Concordia Ins. Co. v. School District, 282 U. S. 545, 550, 51 S. Ct. 275, 75 L. Ed. 528; Id. (C. C. A. 10th) 40 F.(2d) 379; Firemen’s Ins. Co. v. Brooks (C. C. A. 6th) 32 F.(2d) 451, 65 A. L. R. 909; Continental Ins. Co. v. Fortner (C. C. A. 6th) 25 F.(2d) 398; Lusk v. American Cent. Ins. Co., 80 W. Va. 39, 91 S. E. 1078; American Ins. Co. v. Dannehower, 89 Ark. 111, 115 S. W. 950; Helvetia Swiss F. Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 P. 242; Teasdale v. City of New York Ins. Co., 163 Iowa, 596, 145 N. W. 284, Ann. Cas. 1916A, 591 and note; 26 C. J. 403; 14 R. C. L. 1348. But the determination of the question as to whether tho proofs of loss were furnished in accordance with the terms of the policy does not depend upon the question of waiver or nice inquiries into the duration of the fire; for under tho law of West Virginia failure to file proofs of loss within the sixty days limited by the policy merely delays and does not bar action. Raleigh Hardware Co. v. Williams, 106 W. Va. 85, 144 S. E. 879, 880; Smith Ins. Agency v. Hamilton Fire Ins. Co., 69 W. Va. 129, 71 S. E. 194; Rheims v. Standard Fire Ins. Co., 39 W. Va. 672, 20 S. E. 670. The provision of the statutory form relating" }, { "docid": "6224081", "title": "", "text": "damage, it is admitted that 212 claim letters were filed with it by the insured. These indicate themselves that the losses were heavy and serious. Indeed Hartford conducted surveys on every scow on which damage was reported. At the request of the insured Hartford met with it on January 26, 1966, to discuss the claims. Hartford disclaimed liability after this meeting on the ground of no coverage despite the fact that its right to attend the surveys depended entirely on the continued coverage of the policies and notice of claims thereunder. At no time was there any question raised as to the timeliness of the notices of loss until the amended answer was filed in May, 1968. In a long line of decisions such a course of action raises questions of estoppel and waiver. See Brink v. Hanover Fire Ins. Co., 80 N.Y. 108, 113 (1880); Dobson v. Hartford Fire Ins. Co., 86 App.Div. 115, 83 N.Y.S. 456 (4th Dept. 1903), aff'd, 179 N.Y. 557 (1904); American Merchant Marine Ins. Co. v. Margaret M. Ford Corp., 269 F. 768 (2 Cir. 1920), and Della-Posta v. New York Casualty Co., 276 App.Div. 770, 771, 92 N.Y.S.2d 523 (2d Dept. 1949). Also see Couch on Insurance 2d, § 26: 305. Having accepted, with the insured’s cooperation, the surveys and other benefits of the notice provision of the policies, Hartford is es-topped to deny the insured’s compliance with that provision. Likewise, Hartford specifically disclaimed liability under the policies on the sole ground that the damage to the scows resulted from inevitable wear and tear consequent upon the carriage of rip rap. By electing to so disclaim on the merits Hartford waived the notice requirement of the policy. See John Alt Furniture Co. v. Maryland Casualty Co., 88 F.2d 36, 39 (8 Cir. 1937); Hartford Fire Ins. Co. v. Daniels, 201 F.2d 787, 789 (9 Cir. 1953); Nationwide Life Ins. Co. v. Shands, 355 F.2d 103 (5 Cir. 1966); Appell v. Liberty Mutual Ins. Co., 22 A.D.2d 906, 255 N.Y.S.2d 545 (2d Dept. 1964), aff’d, 17 N.Y.2d 519, 267 N.Y.S.2d 516 (1966). We have" }, { "docid": "8572186", "title": "", "text": "by the insurer of its right to defend because of such default. The applicable rule in this Circuit was announced by Judge Thayer in Equitable Life Assur. Soc. v. Winning (C.C.A. 8) 58 F. 541, 546, 547, as follows: “It is invariably held that a refusal by an insurer to pay a claim, after a loss has occurred, because of a breach of any of the substantive provisions of the policy, or because the policy was not in force, or because the loss occurred in consequence of a risk not covered by the policy, is in itself a waiver of the provision requiring notice and proofs of loss to be submitted within a specified number of days after the loss occurs. The cases to this effect are almost too numerous for citation, and only a few will be referred to. Tayloe v. Insurance Co., 9 How. [390] 391, 396, 397 [13 L.Ed. 187]; Norwich & N. Y. Transp. Co. v. Western Massachusetts Ins. Co., 34 Conn. 561, 570 [Fed.Cas. No. 10,363], and citations; Thwing v. Insurance Co., Ill Mass. 93, 110. In some of the more recent cases it has also been ruled that the provision in question may be waived by acts done by the insurer after the time has expired within which no tice and proofs are required to be submitted, and that no new consideration is necessary to support a waiver of that character. In the case of Prentice v. Insurance Co., 77 N.Y. 483, 489 [33 Am. Rep. 651], where the policy required notice of death to be forthwith given and .full proofs to be submitted within twelve months, and no notice or proofs were submitted for more than two years after the death occurred, Andrews, J., said, in affirming the judgment against the insurer: “ ‘It is now understood to be the doctrine of this court that no new consideration is required to support a waiver by an insurance company of a condition in respect to the time of serving proofs of loss, and that it may be done by acts or conduct occurring subsequently" }, { "docid": "21343337", "title": "", "text": "that his company would be expected to make good these losses. The information which the resident manager secured, he forwarded to the home office. So it appears that the defendant did have actual knowledge of the facts on which the elaim and proof of loss was or would have been predicated and that this information was given to it as it was discovered. There seems to have been co-operation on the part of the Department of Banking and Insurance and the defendant company “to obtain full restitution.” It was for this purpose that extensions of the time in which to file proof of loss were requested and granted. The purpose of the requirement in the bond that claim be made showing items and dates of losses was to enable the surety to protect itself against the defalcations of the insured. When the surety has actual notice and co-operates to protect itself against loss, it has, in fact, the information which the bond requires to be given it. In such ease, the purpose of the provision in the bond has been accomplished. Formal proof of loss would not have added anything in this case to what the surety had already learned from the Department of Banking and Insurance, from the plaintiff company and from its own investigation and examinations. The utmost frankness and fair dealing prevailed between the defendant, on the one. hand, and the department and plaintiff, on the other. There was no express waiver of the necessity of filing a claim, within time, showing the items and dates of loss, but waiver may be inferred from the aets of the parties, and under the circumstances of this ease, failure to file formal proof of loss does not constitute a defense. Higgins v. Fidelity-Phoenix Insurance Co., 107 N. J. Law, 175, 151 A. 869; Hurt v. Employers’ Liability Assur. Corp’n (C. C.) 122 F. 828; Larkin v. Glens Falls Insurance Co., 80 Minn. 527, 83 N. W. 409, 81 Am. St. Rep. 286; Montana Auto Finance Corp’n v. Federal Surety Co., 85 Mont. 149, 278 P. 116; Pennsylvania Fire Ins." }, { "docid": "8343107", "title": "", "text": "Fire & Marine Ins. Co., 63 Minn. 305, 65 N. W. 635, 30 L. R,. A. 346, 56 Am. St. Rep. 481; 24 Harvard L. Rev. 580. But we think the question whether the service was made within a reasonable time, the facts not being in dispute, was one of law, and should have been disposed of accordingly. “The object and purpose of this provision of the policy was to afford the company an opportunity to make an early and prompt investigation into the claim of loss or injury, not only to learn and ascertain the facts with respect thereto, but also to protect .itself from a possible fraudulent and fictitious claim. If there he long delay, this purpose of the contract may be wholly defeated, and the insurer deprived of the right to early information in reference to the merits of the claim. The facts may be concealed, witnesses scatter and disappear, rendering a delayed investigation without substantial results. We have heretofore held that the requirement of notice is of the essence of the contract, a condition precedent, and if the delay be such as to defeat the purpose of the contract, and deprive the insurer of the opportunity of an early investigation into the loss, there is a breach of the contract by the insured which will forfeit his right of indemnity.” In Friedman v. Orient Ins. Co., 278 Mass. 596, 180 N. E. 617, at page 618, it is said: “Immediate notice of the loss in writing, required by the terms of the contract, was a condition precedent to recovery in this action. The burden of proving performance, or excuse for nonperformance, was on the plaintiff. Hatch v. United States Casualty Co., 197 Mass. 101, 105, 106, 83 N. E. 398, 14 L. R. A. (N. S.) 503, 125 Am. St. Rep. 332, 14 Ann. Cas. 290; McCarthy v. Rendle, 230 Mass. 35, 119 N. E. 188, L. R. A. 1918E, 111; Wilcox v. Massachusetts Protective Association, Inc., 266 Mass. 230, 165 N. E. 429; Vasaris v. National Liberty Ins. Co. of America, 272 Mass. 62, 66," } ]

[ { "docid": "16711976", "title": "", "text": "upon the subject of a remedy .for a violation by a purchaser of the obligations of his contract, and it did not assume to bind the hands of any future legislature that might think proper to deal with the subject. There was no promise or contract expressed in the statute that the State would not enlarge the remedy or grant another on account of the purchaser’s violation of his contract, and we think no such contract is to be implied. A purchaser of lands at the time Phillips purchased had no right to assume that the State would not alter the law in the future so far as to give it another and better or a quicker remedy for a violation of his contract by the purchaser, than existed at the time the purchase was made. To enact laws providing remedies for a violation of contracts, to alter or enlarge those remedies from time to time as to the legislature may seem appropriate, is an exercise of sovereignty, and it cannot be supposed that the State in a case like this, contracts in a public act of its legislature, to limit its power in the future, even if it could do so, with or without consideration, unless the language of the act is so absolutely plain and unambiguous as to leave no room-' for doubt that its true meaning amounts to a contract by it to part with its power to increase the effectiveness of existing remedies as against those who purchase lands while the act remains alive. No such language is to be found in the act in question, and none ought to be implied. We cannot discern the difference in principle between this case and that of Wilson v. Standefer, 184 U. S. 399, which involved a portion of this same legislation. In that case the lands were purchased under the act of 1879, which provided (sec. 12) for a forfeiture‘after judicial inquiry determining the failure of the purchaser to pay the annual installments of interest as they became due. Subsequently the act of 1897, already mentioned, was" } ]

[ { "docid": "22659022", "title": "", "text": "the operation of contracts, to protect the vital interests of the community? Questions of this character, “ of no small nicety and intricacy, have vexed the legislative halls, as well as the judicial tribunals, with an uncounted variety and frequency of litigation and speculation.” ' Story on the Constitution, § 1375. The obligation of a contract is “ the law which binds the\" parties to perform their agreement.” Sturges v. Crowninshield, 4 Wheat. 122, 197; Story, op. cit., § 1378. This Court has said that “ the laws which subsist at the time and place of the making of a contract, and where it is to be performed, .enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its' validity, construction, discharge and enforcement. . . . Nothing can be more material to the obligation than the means of enforcement. . . . The ideas of validity and remedy are inseparable, and both are parts' of the obligation, which is guaranteed by the Constitution against invasion.” Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552. See, also, Walker v. Whitehead, 16 Wall. 314, 317. But this broad language cannot be taken without qualification. Chief JusticeMarshall pointed out the distinction between obligation and remedy. Sturges v. Crowninshield, supra, p. 200. Said he: “ The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” And in Von Hoffman v. City of Quincy, supra, pp. 553, 554, the general statement above quoted was limited by the further observation that “ It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided' no substantial right secured by the'contract is thereby impaired. No attempt has been made to fix definitely" }, { "docid": "3635394", "title": "", "text": "an end to litigation, and to save persons from continual exposure to stale demands. The leading argument against this doctrine, however, is, that statutes of limitation extinguish the remedy only, and not the right, upon contracts. Let us not deceive ourselves; there is no magic in words. Is the proposition, thus laid down, true to the extent, which the purpose, for which it is introduced, requires ? The distinction between a right and a remedy is admitted. But can a right be truly said to exist upon a contract, when all remedy upon it is legally extinguished? Suppose a judgment has passed upon the plea of prescription to a contract in favor of the defendant; there is a perpetual bar of remedy; but could it be said, that the right upon the contract still subsists? The supreme court of the United States,' has recently said, in a very elaborate opinion delivered by the chief justice, “the distinction between the obligation of a contract and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified, as the wisdom of the nation shall direct.” Again: “Statutes of limitation relate to the remedies, which are furnished in the courts. They rather establish, that certain circum stances shall amount to evidence, that a contract has been performed, than dispense ■with its performance. If, in a state where six years may be pleaded in bar to an action of assumpsit, a law should pass, declaring that contracts already in existence, not barred by the statute, should be construed to be within it, there would be little doubt of its unconstitutionality.” Sturgis v. Crowninshield, 4 Wheat. [17 U. S.] 122, 200, 207. And why, may it be asked? Because it takes away all remedy upon the contract, and thereby destroys its obligation. In the opinion of the supreme court, in the case then in judgment, the insolvent laws of states, which absolved the person and future property of the debtor" }, { "docid": "22627812", "title": "", "text": "v. Biddle. The question did not arise under the Constitution of the United States, but under the compact. In the case of Sturges v. Crowninshield, 4 Wheat. 200, the late chief justice says: “ The distinction between the obligation of a contract and the rerhedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” This is the true principle laid down in explicit terms. The doctrine that the remedy constitutes a part of the contract' is a mere abstraction, which cannot be carried into practical ope.ration. If the doctrine-be sound, it secures the means for the' enforcement of the contract at its date. Now does any one. doubt that a state legislature may-abolish imprisonment for debt, as well on past as future contracts ? Here is a modification of the remedy, which takes away a means, and often a principal means, of enforcing the payment of the debt. And yet this is admitted by all .to be a constitutional law. Nor does any one doubt the constitutionality of a statute of limitations. . This operates upon contracts entered into before its enactment, and bars the right of action. Now, if the remedy existing at the time of the contract.is a part of the contract, the state legislature cannot modify the remedy, much less, as by the above statute, take it away. It is no answer to this argument to say, that the statutory bar' is only interposed where the obligee has been grossly negligent. There was no such condition of vigilance at the date of the contract, and if the above argument -be sound, no subsequent action of the legislature can impair its obligation by materially retarding its enforcement, much' less by barring the remedy. The argument in favour of the statute is, that it does not act upon the contract, but withdraws the remedy. Now if this be a constitutional exercise of power by a state" }, { "docid": "11359404", "title": "", "text": "“general welfare” clause of the Constitution (article 1, § 8). Moreover, upon the facts therein dealt with, it was as different from the case at bar as daylight is from dark. Therein, the Supreme Court dealt with a moratorium act of the highest emergency, by the state of Minnesota, passed in the midst of a nation-wide depression, which well-nigh submerged this whole Union. Herein, the vexing act was passed in the midst of an apparent prosperity, which amazed the world. There, the Minnesota act in no wise changed the contract or the remedy, but merely extended the time for a legal resort to that remedy; here, the Missouri act, in the very teeth of the Federal and state Constitutions, violated the obligation of a solemn contract in a vital way. The distinction is not novel. In the ease of Sturges v. Crowninshield, 4 Wheat. 122, loc. cit. 200, 4 L. Ed. 529, the Supreme Court of the United'States long ago said: “The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. “Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” This was seemingly a reference to the nation, but it is equally true of a state. The defendants, of course, had the right to rely upon the validity of the amendment made to section 9911, supra, in 1929. It was their duty to follow it and not question it, and their acts done under it cannot be brought in question, so long as it stands as valid. This court has heretofore had occasion, in an oral opinion rendered in the case of Denison v. Little River Drainage District, to pass upon some of the questions mooted herein, and to discuss them at some length, and reference may be made here to that discussion, if curiosity shall so dictate. It follows from what is said, that the permanent injunction prayed for should issue as prayed, and so" }, { "docid": "22074471", "title": "", "text": "Sturges v. Crowninshield, supra, p. 200. Said he: ‘The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of .the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.’ And in Von Hoffman v. City of Quincy, supra, pp. 553, 554, the general statement above quoted was limited by the further observation that ‘It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.’ ” Later, in Honeyman v. Jacobs, 306 U. S. 539, 542, Chief Justice Hughes, the author of Blaisdell, quoted with approval the following language from the opinion which he had joined in Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U. S. 124, 128: “The legislature may modify, limit or alter the remedy for enforcement of a contract without impairing its obligation, but in so doing, it may not deny all remedy or so circumscribe the existing remedy with conditions and restrictions as seriously to impair the value of the right.” Chief Justice Hughes in the Jacobs case also referred to numerous past cases as having drawn this distinction, including among them Blaisdell. See 306 U. S., at 542. He concluded that “[t]he reasoning of this Court in Richmond Mortgage Corp. v. Wachovia Bank, supra, is applicable and. governs our -decision.” 306 U. S., at 543. 290 U. S., at 439. Ibid. Id., at 440. Mr. Justice Brandéis in discussing Blaisdell the following year said that the statute in that case had been upheld because it had been- found “to preserve substantially the right”" }, { "docid": "16042133", "title": "", "text": "the obligation of the contract itself. As Chief Justice Marshall observed in Ogden v. Saunders, 12 Wheat. 213, 349, the obligation and the remedy originate at different times. “The obligation to perform is coeval with the undertaking to perform; it. originates with the contract' itself, and operates anterior to the time of performance. The remedy acts upon a broken contract, and enforces a preexisting obligation.” The distinction was well expressed by Mr. Justice Harlan, speaking for this,'court, as follows: “It is well settled that while, in a general sense,- the laws in force at the time a contract is made enter into its obligation, parties have no vested right in the particular remedies or modes of procedure then existing. It is true the Legislature may not withdraw all remedies, and thus, in effect, destroy the contract; nor may it impose such new restrictions or conditions as would materially delay or embarrass the enforcement of rights under the contract according to the usual course of justice as established when the contract was made. Neither could be done without impairing the obligation of the contract. But it is equally well settled that the Legislature may modify or change existing remedies or prescribe new modes' of procedure, without impairing the obligation of contracts, provided a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract.” Oshkosh Water Works Co. v. Oshkosh, 187 U. S. 437, 439; citing many previous cases. In Bernheimer v. Converse, 206 U. S. 516, this court held that a statute of Minnesota, enacted for the purpose of giving a more efficient remedy to enforce the contractual liability of stockholders to creditors, by enabling a receiver to maintain an action for the benefit of creditors outside of the jurisdiction of the court appointing him,— a remedy that by the laws of Minnesota was not available at the time the stock liability in question arose, — did not impair the obligation of the contract. Mr. Justice Day, speaking for the court, said, (at p. 530): “Is there anything in the" }, { "docid": "2523204", "title": "", "text": "398, 427, 428, 54 S.Ct. 231, 235, 236, 78 L.Ed. 413 (1934) called attention to the desire of the drafters of the Constitution as found in The Federalist No. 44, and there appears to be little doubt that the drafters intended to restrain the states from enacting debtor relief acts. Widespread economic distress which followed the Revolutionary War caused “an ignoble array of legislative schemes for the defeat of creditors and the invasion of contractual obligations.” When the Contract Clause limitation on the states is considered with the grant of the paramount bankruptcy power to the Congress, the federal bankruptcy power is complete. Very early the Supreme Court applied the Contract Clause to debtor relief laws and other state statutes which impaired the states’ obligations to private citizens. See Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 303, 1 L.Ed. 391 (1795); Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 3 L.Ed. 162 (1810); New Jersey v. Wilson, 11 U.S. (7 Cranch.) 164, 3 L.Ed. 303 (1812); Dartmouth College Case, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 518 (1819). In 1819 the Supreme Court invalidated a New York insolvency law that discharged debtors once they had surrendered property, finding the retroactive effect a violation of the Contract Clause. Sturges v. Crawenshield, 17 U.S. (4 Wheat.) 122, 4 L.Ed. 529 (1819). In Sturges, it was pointed out that the distinction between the obligation of a contract and the remedy given by the legislature to enforce the obligation existed in the nature of things. Without impairing the obligation of contract, the remedy may certainly be modified as the wisdom of the nation shall direct. In 1825 the Supreme Court sustained a debtor relief act that was prospective. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L.Ed. 606 (1825). Chief Justice Marshall attempted but did not convince the Court that the Contract Clause prohibited the state from enacting debtor legislation that was prospective in application. In Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552, 18 L.Ed. 403 (1868) the Supreme Court stated: [t]he laws which subsist at the time" }, { "docid": "10207217", "title": "", "text": "case at bar is a passage quoting a statement which in Blaisdell the Chief Justice quoted from Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552: “the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms.” The Court now quotes this language as the governing law. In the Blaisdell case, however, the Chief Justice followed the quotation with this statement: “But this broad language cannot be taken without qualification.' Chief Justice Marshall pointed out the distinction between obligation and remedy. Sturges v. Crowninshield, supra [4 Wheat. 122], p. 200. Said he: 'The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.’” Home Building & Loan Assn. v. Blaisdett, supra, at 430. And Chief Justice Marshall, elaborating his views of this same subject in his dissenting opinion in Ogden v. Saunders, 12 Wheat. 213, 343, 353, said: “We have, then, no hesitation in saying that, however' law may act upon contracts, it does not enter into them, and become a part of the agreement. The effect of such a principle would be a mischievous abridgment of legislative power over subjects within the proper jurisdiction of States, by arresting their power to repeal or modify such laws with respect to existing contracts.” “We think, that obligation and remedy- are distinguishable from each other. That the first is created by the act of the parties, the last is afforded by government.” Treat v. Orono, 26 Me. 217; Lisso & Bro. v. Natchitoches, 127 La. 283; 53 So. 566; Lynde v. Melrose, 10 Allen (Mass.) 49. And see Upson, Local Government Finance in the Depression, 24 National Municipal Review 503, 506. (“Ordinarily, in important communities tax-title buying" }, { "docid": "22340994", "title": "", "text": "contract <-binds the stockholder to pay to the creditors of the corporation an amount sufficient to pay the' debts of the corporation .which its assets will not pay, up to an amount-equal to the stock held by each shareholder. That is his contract, and the duty which the statute imposes, and that is his obligation. Any statute which took away the benefit of such contract or obligation would be . void as to the creditor, and any attempt to increase the obligation be-, yond that incurred by the stockholder would fall within the prohibition of the Constitution. But there was nothing in the láws of Minnesota undertaking to make effectual the constitutional provision to which we have referred, preventing the legislature .from giving additional remedies to make the obligation of the stockholder effectual, so long as his original undertaking was not enlarged. There is a broad distinction between laws impairing the obligation of contracts and those which simply undertake to give a more efficient remedy to enforce a contract already made. This principle was stated by Mr. Chief Justice Marshall in Sturges v. Crowinshield, 4 Wheat. 122, as follows: - “The distinction between the obligation of a contract and a remedy given by the legislature to enforce that obligation exists in the nature of things, and, without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the Nation may direct.\" The same rule is recognized in Hill v. Merchants’ Ins. Co., 134 U. S. 515, wherein a statute was sustained changing the character of the remedy against stockholders in common to one giving a direct remedy against an individual, stockholder. The principle was clearly enunciated in. Wagoner v. Flack, 188 U. S. 595-603, in which Mr. Justice Peckham, speaking for the court, said: “To enact laws providing remedies for-a violation of con tracts, to alter or enlarge those remedies from time to time as to the legislature may. seem appropriate, is an exercise of sovereignty, and it cannot be supposed that the State in a case like thi§, contracts in a public act" }, { "docid": "11781233", "title": "", "text": "90 ; Davidson v. New Orleans, 96 U. S. 97; Spencer v. Merchant, 125 U. S. 345; Gallup v. Schmidt, 183 U. S. 300, 307; King v. Mullins, 171 U. S. 404. Néither Dolán nor any of the successors to his-title availed of the opportunity to be judicially heard afforded, by the law; and the reason for not doing so clearly appears in the admitted fact that the payments were in arrears for a considerable period of time.' .The teuder made, if it could have had any legal effect at.any time, was manifestly too late after the State hacl declared the forfeiture and sold the land to another.' Upon the whole, we agree with the conclusion of the Supreme Cor;rt of Texas, that no .contract rights of a purchaser under* \"the act of 1879 were impaired’ by the provisions of the subsequent act of 1897 ; that the twelfth section of the act of 1879, was not, in- legal contemplation, a stipulation by the State that the only remedy which might be resorted to by the State was the one therein provided for.; that, in the language of Chief Justice Marshall,' “ the distinction between the obligation of a contract and a remedy given by the legislature to enforce that obligation exists in the nature of things, and without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation may direct.” Sturges v. Crowninshield, 4 Wheat. 122. The judgment of the Court of Civil Appeals for the Third Judicial District of the State of Texas is Affirmed." }, { "docid": "22340995", "title": "", "text": "by Mr. Chief Justice Marshall in Sturges v. Crowinshield, 4 Wheat. 122, as follows: - “The distinction between the obligation of a contract and a remedy given by the legislature to enforce that obligation exists in the nature of things, and, without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the Nation may direct.\" The same rule is recognized in Hill v. Merchants’ Ins. Co., 134 U. S. 515, wherein a statute was sustained changing the character of the remedy against stockholders in common to one giving a direct remedy against an individual, stockholder. The principle was clearly enunciated in. Wagoner v. Flack, 188 U. S. 595-603, in which Mr. Justice Peckham, speaking for the court, said: “To enact laws providing remedies for-a violation of con tracts, to alter or enlarge those remedies from time to time as to the legislature may. seem appropriate, is an exercise of sovereignty, and it cannot be supposed that the State in a case like thi§, contracts in a public act of its legislature to limit its ppwer in the future, even if it could do so, with or. without consideration, unless the. language of • the act is so absolutely .'plain and unambiguous as to leave, no room for-doubt that its true . meaning amounts to. a contract by it to part with its power to increase the effectiveness of existing remedies.’’ See, also, Wilson v. Standefer, 184 U. S. 399; New Orleans City &c. Railroad Co. v. New Orleans, 157 U. S. 219. The liability arising under the constitution of 'Minnesota was such that'legislation was appropriate to make it effectual. We can find nothing in the fact that one legislature has- passed an act which would conclude a subsequent law-making body of equal power fr.om passing hew and additional measures, to make the remedy more effectual. That the first act \"did not accomplish its purpose is evident. Under it stockholders in another State,’who could not be reached'by-personal service, were immune from liability and the entire burden was cast” upon local stockholders. , There was" }, { "docid": "22340996", "title": "", "text": "of its legislature to limit its ppwer in the future, even if it could do so, with or. without consideration, unless the. language of • the act is so absolutely .'plain and unambiguous as to leave, no room for-doubt that its true . meaning amounts to. a contract by it to part with its power to increase the effectiveness of existing remedies.’’ See, also, Wilson v. Standefer, 184 U. S. 399; New Orleans City &c. Railroad Co. v. New Orleans, 157 U. S. 219. The liability arising under the constitution of 'Minnesota was such that'legislation was appropriate to make it effectual. We can find nothing in the fact that one legislature has- passed an act which would conclude a subsequent law-making body of equal power fr.om passing hew and additional measures, to make the remedy more effectual. That the first act \"did not accomplish its purpose is evident. Under it stockholders in another State,’who could not be reached'by-personal service, were immune from liability and the entire burden was cast” upon local stockholders. , There was no provision for a receiver or assignee beginning action outside the State, and it was held -by this court in Hale v. Allinson, supra, that a chancery receiver was powerless to enforce the rights of creditors beyond the borders of the State. In this condition of affairs the State of Minnesota has undertaken to provide a proceeding for the settlement of insolvent corporations which shall ascertain the assets of the corporation, the extent of the indebtedness of the corporation? the amount to which it is necessary, if at all, to call upon the stockholders’ liability. • It is obviously an act intended to make effectual the liability which is incurred by stockholders under the constitution of the State, and it ought not to be rendered nugatory unless substantial objection exists against its enforcement. It operates equally upon all stockholders at home and abroad and assesses all by a uniform rule. We shall proceed to notice some of the specific objections which are urged against the validity of this legislation by stockholders who acquired stock before" }, { "docid": "16042134", "title": "", "text": "done without impairing the obligation of the contract. But it is equally well settled that the Legislature may modify or change existing remedies or prescribe new modes' of procedure, without impairing the obligation of contracts, provided a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract.” Oshkosh Water Works Co. v. Oshkosh, 187 U. S. 437, 439; citing many previous cases. In Bernheimer v. Converse, 206 U. S. 516, this court held that a statute of Minnesota, enacted for the purpose of giving a more efficient remedy to enforce the contractual liability of stockholders to creditors, by enabling a receiver to maintain an action for the benefit of creditors outside of the jurisdiction of the court appointing him,— a remedy that by the laws of Minnesota was not available at the time the stock liability in question arose, — did not impair the obligation of the contract. Mr. Justice Day, speaking for the court, said, (at p. 530): “Is there anything in the obligation of this contract which is impaired by subsequent legislation as to the remedy enacting new means of making the liability more effectual? The obligation of'this contract binds the stockholder to pay to the creditors of the corporation an amount sufficient to pay the debts of the corporation which its assets will not pay, up to an amount equal to the stock held by each shareholder. That is his contract, and the duty which the statute imposes, and that is his obligation. Any statute which took away the benefit of such contract or obligation would be void as to the creditor, and any attempt to increase the obligation beyond that incurred by the stockholder would fall within the prohibition of the Constitution. But there was nothing in the laws of Minnesota undertaking to make effectual the constitutional provision to which we have referred, preventing the legislature from giving additional remedies to make the obligation of the stockholder effectual, so long as his original undertaking was not enlarged. There is a broad' distinction between laws impairing" }, { "docid": "22074470", "title": "", "text": "that the injury wrought may be held to the minimum. On the other hand, statutes or contracts designed to reheve from the rigors of forfeiture are looked upon warmly and construed liberally, so as to afford the maximum relief. And this reciprocal rule applies as well to the great state of Texas as to its humblest citizen.” 231 S. W., at 131. Cf. State v. Walden, 325 S. W. 2d 705 (Tex. Civ. App.). Fletcher v. Peck also made clear that the Constitution forbids impairment of a contract whether the contract be executed or, as here, executory. 6 Cranch, at 136-137. 4 Wheat., at 200. See also, e. g., Honeyman v. Jacobs, 306 U. S. 539, 542, and cases there cited; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 430, 434, and cases there cited at n. 13; Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 439. 4 Wheat., at 197-198. The Blaisdell opinion said, 290 U. S., at 430: “Chief Justice Marshall pointed out the distinction between- obligation and remedy. Sturges v. Crowninshield, supra, p. 200. Said he: ‘The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of .the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.’ And in Von Hoffman v. City of Quincy, supra, pp. 553, 554, the general statement above quoted was limited by the further observation that ‘It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.’ ” Later, in Honeyman v. Jacobs, 306 U. S. 539, 542, Chief Justice" }, { "docid": "16042132", "title": "", "text": "the legislature may by subsequent enactment provide a legal remedy, and thus give vitality to the obligation that the parties intended-to create. Cooley’s Const, him., *293, *374; Sutherland on XT.. S. Const. 428, 429; Ewell v. Daggs, 108 U. S. 143, 151; Gross v. United States Mortgage Co., 108 U. S. 477, 488. Nevertheless, granting, for' the sake of the argument, the contention of-the plaintiff in'error that.the contract in suit, so far as pertains to its obligation; is' of statutory origin, it by no means follows that the provision respect-. ing a preliminary notice to .the obligors, as a condition precedent to suit thereon, although contained in the law as it stood at the time the bond was given, cannot be constitutionally modified by subsequent legislation. The decision must turn, we think, upon the familiar distinction between a law which enlarges, abridges or modifies the obligation of a contract, and a law which merely modifies the remedy, by changing the time or the method in which the remedy shall be pursued, without substantial .interference with the obligation of the contract itself. As Chief Justice Marshall observed in Ogden v. Saunders, 12 Wheat. 213, 349, the obligation and the remedy originate at different times. “The obligation to perform is coeval with the undertaking to perform; it. originates with the contract' itself, and operates anterior to the time of performance. The remedy acts upon a broken contract, and enforces a preexisting obligation.” The distinction was well expressed by Mr. Justice Harlan, speaking for this,'court, as follows: “It is well settled that while, in a general sense,- the laws in force at the time a contract is made enter into its obligation, parties have no vested right in the particular remedies or modes of procedure then existing. It is true the Legislature may not withdraw all remedies, and thus, in effect, destroy the contract; nor may it impose such new restrictions or conditions as would materially delay or embarrass the enforcement of rights under the contract according to the usual course of justice as established when the contract was made. Neither could be" }, { "docid": "2523205", "title": "", "text": "4 L.Ed. 518 (1819). In 1819 the Supreme Court invalidated a New York insolvency law that discharged debtors once they had surrendered property, finding the retroactive effect a violation of the Contract Clause. Sturges v. Crawenshield, 17 U.S. (4 Wheat.) 122, 4 L.Ed. 529 (1819). In Sturges, it was pointed out that the distinction between the obligation of a contract and the remedy given by the legislature to enforce the obligation existed in the nature of things. Without impairing the obligation of contract, the remedy may certainly be modified as the wisdom of the nation shall direct. In 1825 the Supreme Court sustained a debtor relief act that was prospective. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L.Ed. 606 (1825). Chief Justice Marshall attempted but did not convince the Court that the Contract Clause prohibited the state from enacting debtor legislation that was prospective in application. In Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552, 18 L.Ed. 403 (1868) the Supreme Court stated: [t]he laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it as if they were expressly referred to or incorporated in its terms. Nothing can be more material to the obligation than the means of enforcement. .. It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be denied legitimate, and those which, under the form of modifying the remedy, impair substantial right. Every case must be considered upon its own circumstances. In Piqua Branch of the State Bank v. Knoop, 57 U.S. (16 How.) 369, 14 L.Ed. 977 (1854) the Court, when reviewing a retroactive statute, would not permit a state tax exemption which had been granted to be revoked by subsequent statute because of the Contract Clause limitation. Later" }, { "docid": "10207216", "title": "", "text": "Sess., House Doc. No. 9) pp. 26-29. Home Building & Loan Assn. v. Blaisdell, supra, at 434-435. There were three principal ways by which purchasers of tax titles could hold on to the land: (1) By acquiring a valid tax deed. (The tax deeds here were admittedly invalid under the laws existing at the time of forfeiture.) (2) By two years open and adverse possession. (Though over two years had elapsed between the date of purchase and the beginning of this litigation, the courts below found that the purchasers had not availed themselves of this remedy.) (3) By failure of the former landowner to compensate the purchaser for his expenditures. (The order of the court below provided that such compensation be paid.) 6 Cranch. 87, 137. In that case Mr. Justice Johnson denied that the impairment of contract clause, was intended to apply to contracts already fully executed. Id., at 145. That question, however, is not material to the'point here under discussion. The only part of the Blaisdell decision mentioned by the Court in the case at bar is a passage quoting a statement which in Blaisdell the Chief Justice quoted from Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552: “the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms.” The Court now quotes this language as the governing law. In the Blaisdell case, however, the Chief Justice followed the quotation with this statement: “But this broad language cannot be taken without qualification.' Chief Justice Marshall pointed out the distinction between obligation and remedy. Sturges v. Crowninshield, supra [4 Wheat. 122], p. 200. Said he: 'The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the" }, { "docid": "22340993", "title": "", "text": "contention upon which the argument of the plaintiff in error against the constitutionality of this subsequent act rests is that the statute created a contract into which the stockholder entered upon subscribing to or obtaining his stock, which the legislature had no power to change without running counter to the constitutional requirement invalidating laws impairing the obligation of contracts. Constitution, Art. 1, § 10. It may be regarded as settled that upon acquiring stock the stockholder incurred an obligation arising from the constitutional provision, contractual in its nature and, as such, capable of being enforced in the courts not only of that State, but of another State and of the United States, Whitman &c. v. Bank, 176 U. S. 559, although the obligation is not entirely contractual and springs primarily from the law creating the obligation. Christopher v. Norvell, 201 U. S. 216. Is there anything in the obligation of this contract which is impaired by subsequent legislation as to the remedy enacting new means of making the liability more effectual? The obligation .of this contract <-binds the stockholder to pay to the creditors of the corporation an amount sufficient to pay the' debts of the corporation .which its assets will not pay, up to an amount-equal to the stock held by each shareholder. That is his contract, and the duty which the statute imposes, and that is his obligation. Any statute which took away the benefit of such contract or obligation would be . void as to the creditor, and any attempt to increase the obligation be-, yond that incurred by the stockholder would fall within the prohibition of the Constitution. But there was nothing in the láws of Minnesota undertaking to make effectual the constitutional provision to which we have referred, preventing the legislature .from giving additional remedies to make the obligation of the stockholder effectual, so long as his original undertaking was not enlarged. There is a broad distinction between laws impairing the obligation of contracts and those which simply undertake to give a more efficient remedy to enforce a contract already made. This principle was stated" }, { "docid": "22627811", "title": "", "text": "of Kentucky. .Whatever law, therefore, of Kentucky does narrow these rights and diminish these interests, is a- violation of the compact, and is consequently unconstitutional.” And again the court observe : “ The only question, therefore, is, whether the acts of 1797 and 1812 have this effect. ■ It is undeniable that no acts of a similar character were in existence in Virginia at the time when.the compact yvas made; and, therefore, no aid can be derived from the actual legislation of Virginia to support them.” These, acts were held to abridge the rights of the holder under the Virginia title, and, whether remedial or otherwise, were consequently repugnant to thé compact. By the compact, the rights and interests of the Virginia claimant, botinas to their nature and extent, say the court, were to be exclusively determined by the law's of Virginia. In other'words, where rights are to be determined by one law, another and a repugnant law can have no influence upon them. And this was the point adjudged in the case of Green v. Biddle. The question did not arise under the Constitution of the United States, but under the compact. In the case of Sturges v. Crowninshield, 4 Wheat. 200, the late chief justice says: “ The distinction between the obligation of a contract and the rerhedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” This is the true principle laid down in explicit terms. The doctrine that the remedy constitutes a part of the contract' is a mere abstraction, which cannot be carried into practical ope.ration. If the doctrine-be sound, it secures the means for the' enforcement of the contract at its date. Now does any one. doubt that a state legislature may-abolish imprisonment for debt, as well on past as future contracts ? Here is a modification of the remedy, which takes away a means, and often a principal means, of" }, { "docid": "22659023", "title": "", "text": "which is guaranteed by the Constitution against invasion.” Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552. See, also, Walker v. Whitehead, 16 Wall. 314, 317. But this broad language cannot be taken without qualification. Chief JusticeMarshall pointed out the distinction between obligation and remedy. Sturges v. Crowninshield, supra, p. 200. Said he: “ The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” And in Von Hoffman v. City of Quincy, supra, pp. 553, 554, the general statement above quoted was limited by the further observation that “ It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided' no substantial right secured by the'contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances.” And Chief Justice Waite, quoting this language in Antoni v. Greenhow., 107 U.S. 769, 775, added: “ In all such cases the question becomes, therefore, one of reasonableness, and of that the legislature is primarily the judge.” The obligations of a; contract are impaired by a law which renders them invalid, or.releases or extinguishes them (Sturges v. Crowninshield, supra, pp. 197, 198) and impairment, as above noted, has been predicated of laws which without destroying contracts derogate from substantial contractual rights. In Sturges v. Crowninshield, supra, a-'state insolvent law, which discharged the debtor from liability was held to be invalid as applied to contracts in existence when the. law was passed. See Ogden v. Saunders, supra. In Green v. Biddle, 8 Wheat. 1, the legislative acts, which were successfully assailed, exempted the occupant of land from the payment of rents" } ]

[ { "docid": "23694024", "title": "", "text": "where in their judgment such action is necessary to correct an error or remove an injustice, * * * ” [Italics ours.]. This vests jurisdiction to correct the error or to remove the injustice in the Secretaries. The Act says ‘ that they “are authorized to correct any military or naval record where in their judgment such action is necessary” etc. What I have omitted from the above quotation reads: “under procedures set up by them, and acting through boards of civilian officers or employees of their respective Departments.” To me this means nothing more than that the Secretary may seek the aid of this board of civilian officers or employees of his de- partment in order to arrive at a judgment; but, after all, the judgment to be rendered is the Secretary’s judgment. He is not required to bow to the judgment of his subordinate officers and employees unless their judgment coincides with his judgment. If I am correct in this, it cannot be said that the Secretary was arbitrary in adopting the view of the minority and rejecting the view of the majority of this board he had set up. It cannot be said that his action was arbitrary unless the law bound him to accept the judgment of this board, I do not think it does. For the foregoing reasons, I respectfully dissent. LARAMORE, Judge, joins in the foregoing dissenting opinion." } ]

[ { "docid": "23005315", "title": "", "text": "not any individual. Thus, it would make no difference to our conclusion if the officers to whom the Selection Board report was assigned for review should be shown to be entirely different persons from those who reviewed the BCNB decision. We intend, of course, no slur on the impartiality of any officer. It is the JAG as an institution the Congress meant the Secretary not to be “acting through” in the circumstances here involved. Finally, a reading of Hertzog v. United States, sufra, indicates that there may be circumstances under which a Service Secretary may be bound by the fact findings of a Correction Board. That is when they are supported by substantial evidence and there is none to the contrary. If the Secretary weighs conflicting evidence differently from the Board, the application of Proper is more controversial. It may be, 'but we do not now decide, that a Secretary may not refuse relief when a Board points out irrefutably that a mistake of law has been made, adverse to the petitioner. Or it may be he could balk nevertheless if, in view of the overall situation on the entire record, he thinks substantial injustice has not been done. Our decision here does not grapple with these questions, though they are present in the record. The result we reach is based entirely on the failure of the Navy Secretarjr to reach his decision “acting through” a civilian board. In accordance with onr opinion, plaintiff’s motion for summary judgment is granted, defendant’s cross motion is denied and judgment is entered for plaintiff with, tbe amount of recovery to be determined in accordance with Eule 41(c). LaRAMOre, Judge, concurring: I concur in the result reached by the majority opinion on the basis of what I believe to be the rule announced in Proper v. United States, 139 Ct. Cl. 511 (1957). As I read that case, a majority of the court (in which I did not join) held that the Secretary cannot reverse the recommendations by the Board for Correction of Military Eeoords on the basis of a contrary recommendation by a" }, { "docid": "18161800", "title": "", "text": "The Court: So it is clear, Mr. Freedman, I am directing you to proceed to your next question and not to state your reasons for objecting to my last ruling. Now it is your choice. Mr. Freedman: I must state the reasons for my objection, and they are as follows: This witness has not only contradicted himself but it is an absolute conflict between what he said on the stand here and what he said in his deposition, and that is the reason for my objection. I will read to you the part that I think is an absolute conflict. To repeat some of the questions at the bottom of page 60: “Q. Who made that determination? “A. Which determination? “Q. That money should be withheld? “A. The Federal Government. “Q. Was it because of Local 542’s activity? “A. I can’t say that.” That is a direct conflict of what he said from the stand here, and that is my reason. The Court: All right. I consider this to be a wilful violation of my ruling. I have taken into full consideration the cases in this circuit such as United States of America vs. Profitt, 498 F.2d, 1124; United States vs. Schiffer, 351 Fed.2d, 91, and the whole series of cases which are discussed here. I think this is wilful, deliberate misconduct in court, a wilful, deliberate refusal to comply with an order of the Court. I find that Abraham Freedman is guilty of criminal contempt, and I sentence him to 30 days. I will give him an opportunity, if he desires, to file an appeal on that. Otherwise the Marshals can commit him. Mr. Freedman, you can do whatever you wish. Mr. Freedman: I have already done it. The Court: I will give you the right to challenge my sentence. I will give you the right to appeal. I think it is a wilful violation, and it is in contempt. Mr. Freedman: Well, I disagree with Your Honor on the law, and I disagree with the other statements that Your Honor made that I was in continuing contempt. I" }, { "docid": "11276102", "title": "", "text": "salary which is payable at the time of his resignation for the office that he held at the time of his resignation. * * * The question arises, why is Albert Williams Johnson singled out from all the other persons who answer the general description given in the statute ? The answer is plain. He is being punished. And who tried him and found him deserving of punishment? The Committee on the Judiciary of the House of Representatives. The act of June 24, 1946, is a Bill of Pains and Penalties, which, according to the precedents, is a Bill of Attainder, as that expression is used in the Constitution. I think that the act of June 24, 1946, is unconstitutional and is, therefore, no bar to the plaintiff’s action. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L. Ed. 1252; affirming Lovett v. United States, 66 F.Supp. 142, 104 Ct.Cl. 557. The Constitutional power of Congress to try and punish offenses, other than the offense of contempt of Congress, is limited to impeachment of public officers. The Constitution provides for the procedure, which is, in effect, indictment by the House of Representatives and trial by the Senate, a two-thirds vote in the Senate being necessary for conviction. In this case Congress dispensed with the constitutionally authorized procedure, if it was applicable to a resigned judge, as to which I express no opinion, and punished the plaintiff by the enactment of a statute. I think the Constitution forbids it to do that. The- court’s opinion quotes the report of the Committee on the Judiciary of the House of Representatives, which shows that the committee was convinced that the plaintiff was guilty of serious crimes. The court’s opinion also states that the plaintiff was subsequently tried in a criminal proceeding for some of the offenses which had been investigated by the Committee on the Judiciary, and was acquitted. I think both these facts are wholly irrelevant to our decision of the plaintiff’s case. I think the Government’s demurrer should be overruled, but I would limit the hearing of the" }, { "docid": "13953111", "title": "", "text": "November 30,1953, contained the concluding remarks as follows: “ * * * and inasmuch as he rejected terminal leave promotion to. the grade of Major in favor of mustering out pay, no evidence of error or injustice is found.” Whatever the Board or the Secretary of the Army may have thought of this reasoning it does not make the denial of plaintiff’s claim any less arbitrary. Captain Schiffman did not know he was disabled when released from active duty, nor did the Army’s mustering out physical examination reveal this disability.. His choice of mustering out pay in lieu of a promotion was logical, as well as honorable. As he stated before the Correction Board, “I was anxious to take advantage of any legitimate benefits that might, be due me, and, therefore, decided on * * * [that basis] not to accept the majority.” We do not think plaintiff’s choosing the mustering out pay prejudiced his request to have his records corrected. In Uhley v. United States, 121 F.Supp. 674, 128 Ct.Cl. 608 (1954), the officer was in fact permanently disabled, but “was informed by medical officers of the Air Force that his disabilities were not sufficient to make him eligible for retirement and he was released not for physical disability.” Id., 121 F.Supp. at p. 675, 128 Ct.Cl. at p. 609. When Uhley’s condition did not improve he sought a hearing before a retiring board. He was told that “under a ruling of the Comptroller General a retiring board would have no jurisdiction to entertain such an application because plaintiff had been released not for physical disability.” Id., 121 F.Supp. at 676, 128 Ct.Cl. at p. 610. This court held that plaintiff was not bound by his decision to leave the service without first determining his physical fitness. We do not think that Captain Schiffman’s acceptance of the $300 without knowledge of his existing disability should have deprived him of the right to have his records corrected by the Board. In view of what we have said, the Secretary’s denial of plaintiff’s request to have his records corrected to show" }, { "docid": "9891588", "title": "", "text": "would reach the same result. Perhaps I misunderstand what the court means in attaching the consequences it does to a “wrongful course of government conduct,” but I think a lot of others will too. I’m not convinced that this court intended in the opinion in Gila River Pima-Maricopa Indians v. United States, 140 F.Supp. 776, 135 Ct.Cl. 180 (1956), to announce views in conflict with mine. The problem the court addressed there was “wrongs” before August 13, 1946, with “damages” after. P. 185. The portion of the claims of that tribe that is before us now, Appeal No. 4 — 76, involves an alleged wrongful assessment of Indians for irrigation water they believed themselves entitled to receive without charge. I am prepared to believe that the Secretary’s regulations, before August 13, 1946, denying such entitlement “accrued” all at once a claim for recovery of all moneys exacted from the Indians for water both before and after that date. This does not require the “intuitive leap” that the electric range — copying machine situation I have postulated does. I do not think any of the claims in that case did. Our decision on their War Relocation claims, 467 F.2d 1351, 199 Ct.Cl. 586 (1972), reveals no problem of wrongs after August 13, 1946. The court in the volume 135 case quite obviously used the words “continuing claim” when it meant the opposite. The phrase, as used in the cases cited in Judge Davis’ fn. 17, means a claim that does not accrue all at once. It accrues by degrees, whenever a new money payment becomes due. But the court obviously meant by “continuing claim” in the Gila River ease one that did accrue all at once, the result obviously, of a single “wrong.” This was in my view a mere verbal inadvertence that does not require overruling the decision as a precedent but it should induce hesitation in using its language beyond the facts then before the court. An Indian claim that accrued only after August 13, 1946, may be now unenforceable in any tribunal. In general the statutory scheme under" }, { "docid": "14217013", "title": "", "text": "the en banc court have had considerable experience as trial court judges. This court is well versed in looking at a record and deciding whether an outcome of a trial would be different in light of new evidence. It is clear from the appellate record that Kenneth Conley has had more than his “day” in court. After being convicted by a jury, Conley appealed. We upheld the conviction unanimously. United States v. Conley, 186 F.3d 7 (1st Cir.1999). Certiorari was denied. Conley v. United States, 529 U.S. 1017, 120 S.Ct. 1417, 146 L.Ed.2d 310 (2000). Conley appealed again, this time on the grounds of newly discovered evidence. We unanimously reversed the district court because of erroneous legal rulings. United States v. Conley, 249 F.3d 38 (1st Cir.2001). We ended our opinion by stating: “The sentence of the district court, which we affirmed in our prior opinion, shall be executed.” Id. at 47. The sentence was not executed. Conley filed a 28 U.S.C. § 2255 (2000) motion based on essentially the same newly discovered evidence alleged in his prior case. On appeal for a third time, we applied the “law-of-the-case” doctrine in a two to one opinion. Conley’s motion for an en banc was granted and the majority opinion was recalled. I can think of no good reason why we should revisit this case, let alone remand it to a different district court judge. This court has all it needs to decide the Brady issue itself. We have the entire record and we are familiar with it. Moreover, placing the case in the hands of another district court judge can be construed to infer an abdication of our duty of review. Our duty is to review the decision of the district court, not to look to it for help in deciding a difficult legal issue. Judge Tor-ruella’s treatment of the Brady issue is both thorough and correct. Because I believe this court should decide the Brady issue itself, and because I agree with the substance of Judge Torruella’s analysis, I concur in his dissent. My final comment is a direct reply" }, { "docid": "11913322", "title": "", "text": "cause, the District Court was without jurisdiction to proceed to judgment against them by interlocutory order because this required a court of three judges, or by final order since there was neither summons nor voluntary appearance. To permit the judgment to stand is I think, to completely deprive respondents of their day in court and to subject them contrary to settled and established practice to a judgment in personam without process or voluntary appearance. In the concluding sentence of the concurring opinion, it is erroneously said, “There is no complaint that the final decree is wrong either in law or fact.” With deference, the complaint of Appellant is, that the decree is fundamentally wrong, both in law and fact; that entered without jurisdiction it is a nullity and therefore, completely wrong. What the concurring opinion in effect does, is to ignore the fact that the Appellants have had no hearing in the court below on the merits of the issue, and to decide the merits against them, because of their not having appeared below, Appellants correctly confine their complaint here to the fundamental error of entering a decree, without jurisdiction over, them, and wholly correctly, I think, decline to raise or enter into any question as to the merits. I dissent from the result and from the differing, but in my opinion equally invalid, reasons given for it by my colleagues. The order of the Court dated November 7, 1938, directed that the petition be filed; that the council for petitioner give notice to Counsel for all parties of record of the time and place of bearing of the petition, and that the clerk give notice that the petition has been filed and ■ will be heard on November 19, 1938; that if the defendants have any cause why the prayer of the petition should not be granted, they shall appear and file with the clerk not less than five days prior to November 19, an answer to the petition setting forth any cause they have against the granting of it. Form 1.- — Summons To the above-named Defendant: You" }, { "docid": "13807430", "title": "", "text": "an order of this court dated October 2, 1982, Judge Miller, on October 8, 1982, entered a final judgment in accordance with his recommended decision of July 20, 1982. We treat the government’s exceptions to the decision as an appeal from the Claims Court’s final judgment. NICHOLS, Circuit Judge, concurring. I join in the judgment, and in the opinion of the court, except where subsequent remarks may be inconsistent. I fear I may have authored the use of the word “reprehensible” as descriptive of the attorney conduct which might justify an award of counsel fees to a party litigating against the government under 28 U.S.C. § 2412. It seems to cause the present panel some embarrassment. I do not think the panels in Papson v. United States, Ct.Cl. No. 602-80T (order entered June 18, 1982, to be published, 231 Ct.Cl.-), or in Estate of Lillian G. Berg v. United States, 687 F.2d 377 (Ct.Cl.1982), intended to construe the statute as defendant now says that court did construe it, as limited to instances of censurable, or culpable behavior, or measures taken in bad faith. Such a construction would have gone far to nullify the statute and would have been dictum in the cases before the court, when the actions of government counsel had been perfectly reasonable, things such as we ourselves would have done if in their place, probably, though they did not prevail and we would not have either. In Webster’s Unabridged, the preferred meaning of “reprehend” is “voice disapproval of, especially after judgment” and the preferred meaning of “reprehensible” is “worthy of being reprehended.” I continue to believe a court should not award counsel fees unless its attitude towards the conduct of government counsel includes some degree of disapproval, but I presume Judge Friedman would disapprove of conduct he held unreasonable, so there is no disagreement between us in this case. It is probably wise to deep-six use of the word “reprehensible” in this context, because it also has dictionary meanings denoting conduct that really stinks. In other words, it is ambiguous, and what it meant to the Court" }, { "docid": "18230616", "title": "", "text": "of his claim once the petition was filed, and if that department had wished to do so, it could have granted plaintiff’s request to have his retired pay computed under section 402 (d) (2) at that time. The Army has not done so but has elected to defend plaintiff’s claim through its attorneys in the Department of Justice. See Hulse v. United States, 133 C. Cls. 848. Plaintiff’s motion for new trial is granted. Our previous judgment denying plaintiff’s motion for summary judgment and granting defendant’s motion for summary judgment dismissing the petition is vacated. The defendant’s motion for summary judgment is denied. Plaintiff’s motion for summary judgment is granted as to both claims. The amount of recovery will be determined pursuant to Rule 38 (c) of this court. It is so ordered. MaddeN, Judge, concurs. Whitaker, Judge, concurring: I agree with what the court has said relative to plaintiff’s first claim. I also agree with its disposition of the second claim, but only on the ground that the filing of his petition in this court claiming the benefits of the Career Compensation Act constitutes the election required to be made within five years from the passage of that Act. I think it is doubtful whether plaintiff can be excused for not having made the election because of the misinformation given him by the Adjutant General (see Munro v. United States, 303 U. S. 36, 41; and Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380), but I do not think we have to decide this, because I think the filing of the petition constitutes the required election. JoNes, Chief Judge, concurring in part: I agree with, the disposition made of plaintiff’s second claim on the basis stated in the concurring opinion of Judge Whitaker. But I wholly disagree with the action of the majority in overruling the Gilmartin case, 124 C. Cls. 434, which I think correctly states the law. I do not think schooling in the United States Military and Naval Academies should be treated as service in the Army or Navy for any purpose unless it" }, { "docid": "17029087", "title": "", "text": "is legitimate in its place. But Government investigators who can ask improper questions and obtain a discharge for false answers have every incentive to keep on asking such questions. Many employees will trap themselves responding to improper questions with improper answers, not being advised by counsel and knowing no better. I, therefore, believe that the only way to protect employees from improper questions, those the investigator has no right to ask, is to treat false answers the same as refusals to answer. If this is too sweeping for some cases, it is valid where a true answer would enrich the Government files only with derogatory informa tion about the private life of an innocent person, one in no way concerned with, the investigation. I repeat, that none of the above observations apply to cases where a nexus with service interests other than possible disrepute appears. Such a case I assume exists as to the incumbent of a “sensitive” position. Nothing said is intended to apply to any case except the one before the court, and in case of ambiguity should be so construed. I believe, therefore, that Mr. Williams could have successfully challenged the first separation if he had gone about it in proper fashion, and then the second need not have occurred. To me the discharge notice of May 11,1962, set forth in the majority opinion, proclaims its illegality on its own face. If Mr. Williams had answered investigators pressing him to admit these charges with false denials or evasions, I am not sure this would put him out of court. What I think we cannot condone is the affidavit, replete with false and fictitious particulars, which plaintiff concocted and submitted to obtain his reinstatement. I think an award of damages to Mr. Williams would be contrary to 28 U.S.C. §2514. See my views how we should apply this statute as stated, concurring, in Eastern School v. United States, 180 Ct. Cl. 676, 705, 381 F. 2d 421, 438 (1967). As to forfeiture of claims tainted by claimant’s misconduct, compare generally United States v. Acme Process Co., 385 U.S." }, { "docid": "7721701", "title": "", "text": "and reinstated the plaintiff. If it was not bound to do so, it was persuaded by the review and recommendation of the Commission to acknowledge its mistake and reverse its former action. The result of the statutory procedure was then, either that the Navy Department’s decision was, on appeal, reversed by the Civil Service Commission, or that the Navy Department, as a consequence of the appeal and the advice which it received, reversed itself. In either case the writer of this opinion thinks that the normal consequences of a successful ap peal, i. e., that the erroneous original decision is undone and held for naught, should follow. In all the employment situations of which I am aware, the employer bears the burden of a wrongful discharge of an employee. This is true in the case of a contract of employment for a term, a union contract specifying grounds for discharge, or a discharge for union activities in violation of the National Labor Relations Act. I think that Congress did not intend, when it safeguarded carefully the rights of veterans in Government employment in the Act of 1944, to leave the veteran to bear the brunt of a discharge determined by the very procedure set up in that act to have been without cause. The Government reminds us that we have frequently decided that if the procedural steps required by the statutes for the discharge of a civil servant have been followed, we will not review the merits of the administrative decision, in a suit for pay. I think we would not be doing so here, if we were to place our decision upon the ground suggested. The merits of the Navy Department’s original decision were reviewed administratively pursuant to the statute, and the decision adverse to the plaintiff was administratively reversed. I think we would be merely determining the legal question of the effect of that reversal, under the statute. The Government cites ottr recent decision in the case of Ginn v. United States, 110 Ct.Cl. 637. In that case the plaintiff was suspended for making allegedly false statements in" }, { "docid": "5547293", "title": "", "text": "injury that did. One of the doctors felt that he was “somatizing.” In other words, it was all in his head. Affirmed. . The following Fable, by Ambrose Bierce (Collected Writings 559 (1960 ed.)) seems in point: “THE PARTY OVER THERE A Man in a Hurry, whose watch was at his lawyer’s, ashed a Grave Person the time of day. T heard you ask that Party Over There the same question,’ said the Grave Person. ‘What answer did he give you?’ ‘He said it was about three o’clock,’ replied the Man in a Hurry; ‘but he did not look at his watch, and as the sun is nearly down I think it is later.’ ‘The fact that the sun is nearly down,’ the Grave Person said, ‘is immaterial, but the fact that he did not consult his timepiece and make answer after due deliberation and consideration is fatal. The answer given,’ continued the Grave Person, consulting his own timepiece, ‘is of no effect, invalid and void.’ ‘What, then,’ said the Man in a Hurry, eagerly, ‘is the time of day?’ ‘The question is remanded to the Party Over There for a new answer,’ replied the Grave Person, returning his watch to his pocket and moving away with great dignity. He was a Judge of an Appellate Court.” CHAMBERS, Circuit Judge (concurring). I concur in the foregoing opinion. In my judgment the trial judge who saw him found all of the testimony of Ramos untrustworthy. Maybe the trial judge was wrong in doing so, but we are in no position to so find. I desire to say at this time I have come to question our first case of Irish v. United States, 225 F.2d 3. I think we should have affirmed the case on the first hearing. But there judge number one thought it should be reversed, judge number two thought it should be sent back for more findings. (My concurrence with judge number two at the time indicates I could find no one to agree with me.) But in the end the result was reached which I thought should" }, { "docid": "17098435", "title": "", "text": "assume exists as to the incumbent of a “sensitive” position. Nothing said is intended to apply to any case except the one before the court, and in case of ambiguity should be so construed. I believe, therefore, that Mr. Williams could have successfully challenged the first separation if he had gone about it in proper fashion, and then the second need not have occurred. To me the discharge notice of May 11, 1962, set forth in the majority opinion, proclaims its illegality on its own face. If Mr. Williams had answered investigators pressing him to admit these charges with false denials or evasions, I am not sure this would put him out of court. What I think we cannot condone is the affidavit, replete with false and fictitious particulars, which plaintiff concocted and submitted to obtain his reinstatement. I think an award of damages to Mr. Williams would be contrary to 28 U.S.C. § 2514. See my views how we should apply this statute as stated, concurring, in Eastern School v. United States, 381 F.2d 321, 438, 180 Ct.Cl. 676, 705 (1967). As to forfeiture of claims tainted by claimant's misconduct, compare generally United States v. Acme Process Equipment Co., 385 U.S. 138, 87 S.Ct. 350, 17 L Ed.2d 249 (1966). Consequently I would hold that the affidavit precludes Mr. Williams’ recovery in this court regardless of what conclusion we might draw from a mere review, appellate in character, of the CSC proceedings. I reach this conclusion with one eye, too, on Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969), and United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969), which hold that a person can be prosecuted under 18 U.S.C. § 1001 for giving false information to a Government agency on a matter within its jurisdiction, even though it was information the agency could not have demanded. I would rely on these cases more heavily if I were satisfied Mr. Williams’ private life was within IRS jurisdiction, but certainly they cannot go unmentioned. Mr. Justice Harlan's language (in" }, { "docid": "1836953", "title": "", "text": "production after receipt of the stop order and would not have incurred the additional expenses in absence of Government’s promise to allow plaintiff to continue production. See also Irwin & Leighton v. United States, 65 F.Supp. 800, 106 Ct.Cl. 398, 460 (1946). . Jerman v. United States, 96 Ct.Cl. 540 (1942); United States v. National Wholesalers, 236 F.2d 944 (9th Cir. 1956). . Little v. United States, 152 F.Supp. 84, 138 Ct.Cl. 773 (1957). There is little doubt that fraud may be waived by the party affected, but such waiver must be clear and specific. Here, there was no such waiver, even though there was unnecessary delay in taking final action. . Nourso, Jr., Assignee v. United States, 25 Ct.Cl. 7 (1889). LARAMORE, Judge (concurring). I concur with the majority’s conclusion that plaintiff should recover on the basis of the majority opinion. I also concur with the majority that a supplemental agreement resulted. However, I would prefer that plaintiff’s damages should be measured under the clause of the contract which provides for a termination for the convenience of the Government. This is in accordance with my concurring opinion in the cases of John Reiner & Company v. United States, Ct.Cl., 325 F.2d 438, 1963 and Brown & Son Electric Company v. United States, Ct.Cl., 325 F.2d 446, 1963. WHITAKER, Judge (concurring in part and dissenting in part). This is a fraud case the like of which I have never before encountered. Unlike any other one, my sympathies are with those whose agents perpetrated the fraud, and yet I do not think they are legally entitled to what the majority proposes to give them. The officers and agents of the plaintiff on the managerial level took no part in the commission of the fraudulent acts. They did not induce them; they had no knowledge that they would be committed. As soon as they learned of them, they sought to purge the company of the fraud to the full satisfaction of the Government. They have reimbursed the Government for all that it has suffered on account of the fraud, and stand ready" }, { "docid": "17098434", "title": "", "text": "repute flourishes as well as his own. The fact is that the “false statement” charge is a useful means of getting rid of unwanted Government employees, and is legitimate in its place. But Government investigators who can ask improper questions and obtain a discharge for false answers have every incentive to keep on asking such questions. Many employees will trap themselves responding to improper questions with improper answers, not being advised by counsel and knowing no better. I, therefore, believe that the only way to protect employees from improper questions, those the investigator has no right to ask is to treat false answers the same as refusals to answer. If this is too sweeping for some cases, it is valid where a true answer would enrich the Government files only with derogatory information about the private life of an innocent person, one in no way concerned with the investigation. I repeat, that none of the above observations apply to cases where a nexus with service interests other than possible disrepute. appears. Such a case I assume exists as to the incumbent of a “sensitive” position. Nothing said is intended to apply to any case except the one before the court, and in case of ambiguity should be so construed. I believe, therefore, that Mr. Williams could have successfully challenged the first separation if he had gone about it in proper fashion, and then the second need not have occurred. To me the discharge notice of May 11, 1962, set forth in the majority opinion, proclaims its illegality on its own face. If Mr. Williams had answered investigators pressing him to admit these charges with false denials or evasions, I am not sure this would put him out of court. What I think we cannot condone is the affidavit, replete with false and fictitious particulars, which plaintiff concocted and submitted to obtain his reinstatement. I think an award of damages to Mr. Williams would be contrary to 28 U.S.C. § 2514. See my views how we should apply this statute as stated, concurring, in Eastern School v. United States, 381 F.2d" }, { "docid": "15101629", "title": "", "text": "a motion for leave to file an amended petition to convert this case into a class action suit. Given our disposition as above, we think it would be a waste of judicial resources to allow a class action in the litigation at bar. See Clincher v. United States, 205 Ct.Cl. 8, 499 F.2d 1250 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). NICHOLS, Judge, concurring: I fully agree with the court that the instant claim is without merit, if we have jurisdiction to address it. I also agree that we do have such jurisdiction, but my grounds for so stating differ slightly from those of the court. Plaintiff was on active military service until 1980, and according to the terms of 50 U.S.C.App. § 525, he had 6 years after his separation date to sue on any claim against the United States that accrued during his military service. Edmonston v. United States, 140 Ct.Cl. 199, 155 F.Supp. 553 (1957); Berry v. United States, 130 Ct.Cl. 33, 126 F.Supp. 190 (1954), cert. denied, 349 U.S. 938, 75 S.Ct. 783, 99 L.Ed. 1266 (1955). Defendant in the Berry case conceded that limitations were tolled while plaintiff was in military service and only disputed when that service ended. Thus there can be no doubt that under our precedents the present suit is timely as to the entire claim. If, however, we were writing on a blank slate, my reasonings might be slightly different, and in any event, we are hearing this case en banc for the purpose, among others, of overruling our precedents if we determine them to be plainly wrong. The doctrine of strict construction of the consent to be sued was not, it would appear, as highly regarded by the Supreme Court when those cases were decided as it is today; then as often, this court had to be hit in the head by a two by four if it were to take notice of the doctrine, and its doing so sua sponte was not to be expected. This strict construction doctrine is, I think, the" }, { "docid": "7721702", "title": "", "text": "the rights of veterans in Government employment in the Act of 1944, to leave the veteran to bear the brunt of a discharge determined by the very procedure set up in that act to have been without cause. The Government reminds us that we have frequently decided that if the procedural steps required by the statutes for the discharge of a civil servant have been followed, we will not review the merits of the administrative decision, in a suit for pay. I think we would not be doing so here, if we were to place our decision upon the ground suggested. The merits of the Navy Department’s original decision were reviewed administratively pursuant to the statute, and the decision adverse to the plaintiff was administratively reversed. I think we would be merely determining the legal question of the effect of that reversal, under the statute. The Government cites ottr recent decision in the case of Ginn v. United States, 110 Ct.Cl. 637. In that case the plaintiff was suspended for making allegedly false statements in applications for citizenship for himself and another person. Before the administrative proceeding was terminated, the plaintiff brought a separate suit in a United States District Court and obtained a declaratory judgment to the effect that he was an American citizen. Thereupon the Immigration Service reinstated him. We held that he was not entitled to be paid for the period of his suspension. In the Ginn case, the department in which the plaintiff was employed did not, by following the statutory administrative proceeding reach the conclusion that it had suspended Ginn without justification. It merely bowed to the decision of the court in a collateral suit and, in effect, reemployed the plaintiff. I think the Ginn case is distinguishable from the instant one. As appears from the concurring opinion, the other judges think that the Ginn case is indistinguishable from the instant one, and that the plaintiff’s recovery for his second removal cannot properly rest upon the ground which I have suggested. The Act of June 10, 1948, 62 Stat. 354, 5 U.S.C., Supp. III (1950)" }, { "docid": "17098408", "title": "", "text": "inadequacies of his performance or conduct.” This was complied with by the IRS in that plaintiff was informed that he was being dismissed because his continued employment was not in the best interest of the Service. Plaintiff’s course of action should then have been to appeal his dismissal to the Commission within the 15 day limit set by the regulations. Having failed to do this, plain tiff failed to exhaust his administrative remedy, and his dismissal became final. We stated in Friedman v. United States, 310 F.2d 381, 387, 159 Ct.Cl. 1, 11 (1962) cert. denied, Lipp v. United States 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963) , that “Where the statute [regulation] requires that a particular administrative remedy must be exhausted (i. e., a mandatory remedy) * * * the claimant cannot bring suit until he has reasonably exhausted that remedy.” In our present case, plaintiff had 15 days to take his appeal to the Commission, and at the expiration of this 15 days, his dismissal became finalized. Therefore, the latest date from which limitations could begin to run was May 26, 1962. This date was more than six years before this suit was filed on July 30, 1968. Consequently, Count I of plaintiff’s petition is barred by the six year statute of limitations in this court, 28 U.S.C. § 2501 (1964) . Plaintiff argues that his complaint filed with the President’s Commission on Equal Employment Opportunities was sufficient to toll the statute of limitations. His theory is incorrect. This remedy was merely permissive (as opposed to the mandatory remedy set out in the regulations). Limitations were “not deferred or tolled by such optional administrative consideration.” Friedman, 310 F.2d at 388, at 11-12. Count Two Plaintiff’s second count involves his second discharge from the Service on August 12, 1964, less than two years after his reappointment, but at a time when he did have civil service rights. The facts surrounding his second discharge are as follows. On May 11, 1962, the following notice was sent to the plaintiff: In accordance with Section 2.301(c) (1) of the" }, { "docid": "13831653", "title": "", "text": "MADDEN, Judge, concurs. WHITAKER, Judge (concurring). I agree with what the court has said relative to plaintiff’s first claim. I also agree with its disposition of the second claim, but only on the ground that the filing of his petition in this court claiming the benefits of the Career Compensation Act constitutes the election required to be made within five years from the passage of that Act. I think it is doubtful whether plaintiff can be excused for not having made the election because of the misinformation given him by the Adjutant General, see Munro v. United States, 303 U.S. 36, 41, 58 S. Ct. 421, 82 L.Ed. 633; and Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10, but I do not think we have to decide this, because I think the filing of the petition constitutes the required election. JONES, Chief Judge (concurring in part). I agree with the disposition made of plaintiff’s second claim on the basis stated in the concurring opinion of Judge WHITAKER. But I wholly disagree with the action of the majority in overruling the Gilmartin case, 109 F.Supp. 255, 124 Ct.Cl. 434, which I think correctly states the law. I do not think schooling in the United States Military and Naval Academies should be treated as service in the Army or Navy for any purpose unless it is specifically so provided. These schools are maintained wholly at Government expense. Students who receive schooling and training at State and other academies are not permitted to count such training as service in any sense. Yet such schools and academies furnish far more of our officers by number than do both the United States academies. In fact there was such a demand for appointment to the United States academies for educational purposes, and so many were resigning as soon as they had received their commissions immediately after finishing the course that Congress found it necessary to require at least two years’ actual service after graduation before the cadets were permitted to resign their commissions and leave the service. The majority" }, { "docid": "23183674", "title": "", "text": "shall be made within 5 days after determination of guilt or within such further time as the court may fix during the 5-day period.” In plain words, the above rule peremptorily provides that the court shall arrest judgment if the indictment or in formation does not charge an offense. That this was the law prior to March 21, 1946, and at the time of the trial below, is clear from the authorities, except as to the change of time within which such motions may be made. With this minor exception, Rule 34 is merely declaratory of existing law; it does not conflict with 18 U.S.C.A. § 556 or 28 U.S.C.A. § 391, but should be interpreted harmoniously with these procedural statutes ; and neither this rule nor these statutes impaired or restricted the right of an accused to be fully and definitely informed of the particular charge against him. Every defendant in a criminal case has the right to be informed of the essential factual elements of the offense sought to be charged. The Sixth Amendment guarantees it. To withhold essential facts that are required to describe the accusation with reasonable certainty is to deny full information of the nature and cause of the accusation. Upon the subject of the necessity of an indictment or information containing every essential element of the offense, no more direct and positive statement has been found than that of Hutcheson, Circuit Judge, concurring in Grimsley v. United States, 50 F.2d 509, 511, 512, as follows: “The opinion of the majority is an extremely simple and, as I think, correct statement of the principle that two substantial things must concur before a de-feridant may be convicted of a felony in a court of the United States; (1) He must be charged by indictment with the commission of a federal offense; (2) the offense must be proven against him. “I have always supposed that as an in-r dictment without proof cannot support a conviction, so proof without indictment cannot. “That Congress by the Act of February 26, 1919, 28 U.S.C.A. § 391, either intended or has" } ]

[ { "docid": "22349284", "title": "", "text": "421 (1962). It is enough to note that it is now firmly established that a law may be one “respecting an establishment of religion” even though its consequence is not to promote a “state religion,” Lemon v. Kurtzman, 403 U. S. 602, 612 (1971), and even though it does not aid one religion more than another but merely benefits all religions alike. Everson v. Board of Education, supra, at 15. It is equally well established, however, that not every law that confers an “indirect,” “remote,” or “incidental” benefit upon religious institutions is, for that reason alone, constitutionally invalid. Everson, supra; McGowan v. Maryland, supra, at 450; Walz v. Tax Comm’n, 397 U. S. 664, 671-672, 674-675 (1970). What our cases require is careful examination of any law challenged on establishment grounds with a view to ascertaining whether it furthers any of the evils against which that Clause protects. Primary among those evils have been “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Comm’n, supra, at 668; Lemon v. Kurtzman, supra, at 612. Most of the cases coming to this Court raising Establishment Clause questions have involved the relationship between religion and education. Among these religion-education precedents, two general categories of cases may be identified: those dealing with religious activities within the public schools, and those involving public aid in varying forms to sectarian educational institutions. While the New York legislation places this case in the latter category, its resolution requires consideration not only of the several aid-to-sectarian-education cases, but also of our other education precedents and of several important noneducation cases. For the now well-defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause cases. Taken together, these decisions dictate that to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, e. g., Epperson v. Arkansas, 393 U. S. 97 (1968), second, must have a primary effect that neither advances nor inhibits religion, e. g., McGowan v. Maryland, supra; School District" } ]

[ { "docid": "18319481", "title": "", "text": "was less than 4% billion years old. She was unable to locate any substantive teaching material for some parts of Section 4 such as the worldwide flood. The curriculum guide which she prepared cannot be taught and has no educational value as science. The defendants did not produce any text or writing in response to this evidence which they claimed was usable in the public school classroom. The conclusion that creation science has no scientific merit or educational value as science has legal significance in light of the Court’s previous conclusion that creation science has, as one major effect, the advancement of religion. The second part of the three-pronged test for establishment reaches only those statutes having as their primary effect the advancement of religion. Secondary effects which advance religion are not constitutionally fatal. Since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion. The Act therefore fails both the first and second portions of the test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). IV. (E) Act 590 mandates “balanced treatment” for creation science and evolution science. The Act prohibits instruction in any religious doctrine or references to religious writings. The Act is self-contradictory and compliance is impossible unless the public schools elect to forego significant portions of subjects such as biology, world history, geology, zoology, botany, psychology, anthropology, sociology, philosophy, physics and chemistry. Presently, the concepts of evolutionary theory as described in 4(b) permeate the public school textbooks. There is no way teachers can teach the Genesis account of creation in a secular manner. The State Department of Education, through its textbook selection committee, school boards and school administrators will be required to constantly monitor materials to avoid using religious references. The school boards, administrators and teachers face an impossible task. How is the teacher to respond to questions about a creation suddenly and out of nothing? How will a teacher explain the occurrence of a worldwide flood? How will a teacher explain the concept of a relatively recent" }, { "docid": "5406853", "title": "", "text": "the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” Lemon, supra, 403 U.S. at 612-13 (quoting Walz, supra, 397 U.S. at 674). Lemon’s “trilogy of tests has been applied regularly in the Court’s later Establishment Clause cases”; however, as Justice Blackmun pointed out in his majority opinion in Allegheny: “Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion, a concern that has long had a place in our Establishment Clause jurisprudence.” Allegheny, supra, 109 S.Ct. at 3100 (citing Engel v. Vitale, 370 U.S. 421, 436 (1962)). Asking whether challenged action has the purpose or effect of “endorsing” religion helps give content to Lemon’s “primary effect” prong. Application of the Lemon test, and particularly the second prong, is natural in the school-aid context. E.g., Lemon, supra, 403 U.S. at 612; see also Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383 (1985) (“We have particularly relied on Lemon in every ease involving the sensitive relationship between government and religion in the education of our children.”); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 755 (1976) (“the primary-effect question is the substantive [question whether] private educational activities, by whatever procedure, may be supported by state funds”). Outside the school-aid context, the Lemon test itself tends to focus on the question of endorsement. E.g., Allegheny, supra, 109 S.Ct. at 3100; see also id. at 3120 (O’Connor, J., concurring). Even in Ball, supra, a case involving the public financing of classes for nonpublic school students, Justice Brennan cited “endorsement” as one way in which the Lemon primary effect test could be violated: “the challenged public school programs operating in the" }, { "docid": "22996097", "title": "", "text": "now reverse. II The Establishment Clause of the First Amendment has consistently presented this Court with difficult questions of interpretation and application. We acknowledged in Lemon v. Kurtzman, 403 U. S. 602 (1971), that “we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Id., at 612, quoted in Mueller v. Allen, 463 U. S. 388, 393 (1983). Nonetheless, the Court’s opinions in this area have at least clarified “the broad contours of our inquiry,” Committee for Public Education and Religious Liberty v. Nyquist, 413 U. S. 756, 761 (1973), and are sufficient to dispose of this case. We are guided, as was the court below, by the three-part test set out by this Court in Lemon and quoted supra, at 484-485. See Grand Rapids School District v. Ball, 473 U. S. 373, 382-383 (1985). Our analysis relating to the first prong of that test is simple: all parties concede the unmistakably secular purpose of the Washington program. That program was designed to promote the well-being of the visually handicapped through the provision of vocational rehabilita tion services, and no more than a minuscule amount of the aid awarded under the program is likely to flow to religious education. No party suggests that the State’s “actual purpose” in creating the program was to endorse religion, Wallace v. Jaffree, 472 U. S. 38, 74 (1985), quoting Lynch v. Donnelly, 465 U. S. 668, 690 (1984) (O’Connor, J., concurring), or that the secular purpose articulated by the legislature is merely “sham.” Wallace, supra, at 64 (Powell, J., concurring). The answer to the question posed by the second prong of the Lemon test is more difficult. We conclude, however, that extension of aid to petitioner is not barred on that ground either. It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its em ployees, who may then donate all or part of that paycheck to a religious" }, { "docid": "22374283", "title": "", "text": "and to emphasize that nothing in the Court’s opinion diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum. I This Court consistently has applied the three-pronged test of Lemon v. Kurtzman, 403 U. S. 602 (1971), to determine whether a particular state action violates the Establishment Clause of the Constitution. See, e. g., Grand Rapids School Dist. v. Ball, 473 U. S. 373, 383 (1985) (“We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children”). The first requirement of the Lemon test is that the challenged statute have a “secular legislative purpose.” Lemon v. Kurtzman, supra, at 612. See Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973). If no valid secular purpose can be identified, then the statute violates the Establishment Clause. A “The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). The Balanced Treatment for Creation-Science and Evolution-Science Act (Act or Balanced Treatment Act), La. Rev. Stat. Ann. §17:286.1 et seq. (West 1982), provides in part: “[P]ublic schools within [the] state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact.” § 17:286.4(A). “Balanced treatment” means “providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and" }, { "docid": "962702", "title": "", "text": "the same acknowledgment as did the Supreme Court in the oft-cited Lemon opinion: “Candor compels acknowledgment ... that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon v. Kurtzman, 403 U.S. 602 at 612, 91 S.Ct. 2105 at 2111, 29 L.Ed.2d 745 (1971). The following three-part test is applied in Lemon: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster “an excessive government entanglement with religion.” Id. at 612-13, 91 S.Ct. at 2111. The Court has not, however, adhered rigidly to the Lemon test. We quote from the recent nativity-scene opinion: “[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area.” Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984). Another view is that the First Amendment does not prohibit governmental activity of a religious nature so long as the activity is neutral to all religions. One conclusion seems clear: the meaning of the First Amendment is not set in constitutional stone. Whether one applies the “three-pronged” test of Lemon, the less rigid analysis of Lynch, or the views of those who contend that the First Amendment does not prohibit neutral state activity of a religious nature, the Louisiana statue violates the establishment clause. Because it promotes the beliefs of some theistic sects to the detriment of others, the statute violates the fundamental First Amendment principle that a state must be neutral in its treatment of religions. The First Amendment, as applied to the state by the Fourteenth, provides that the state “shall make no law respecting an establishment of religion.” “The Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act” is a “law respecting an establishment of religion.” ADDENDUM SUBPART D-2. BALANCED TREATMENT FOR CREATION-SCIENCE AND EVOLUTION-SCIENCE IN PUBLIC SCHOOL INSTRUCTION § 286.1. Short title This Subpart shall be known as the “Balanced Treatment for Creation-Science and Evolution-Science Act.” Added by Acts" }, { "docid": "22700259", "title": "", "text": "satisfy the prerequisites of Rule 60(b)(5) hinges on whether our later Establishment Clause cases have so undermined Aguilar that it is no longer good law. We now turn to that inquiry. Ill A In order to evaluate whether Aguilar has been eroded by our subsequent Establishment Clause cases, it is necessary to understand the rationale upon which Aguilar, as well as its companion case, School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), rested. In Ball, the Court evaluated two programs implemented by the School District of Grand Rapids, Michigan. The district’s Shared Time program, the one most analogous to Title I, provided remedial and “enrichment” classes, at public expense, to students attending nonpublic schools. The classes were taught during regular school hours by publicly employed teachers, using materials purchased with public funds, on the premises of nonpublic schools. The Shared Time courses were in subjects designed to supplement the “core curriculum” of the nonpublic schools. Id., at 375-376. Of the 41 nonpublic schools eligible for the program, 40 were “‘pervasively sectarian’” in character — that is, “‘the pur-pos[e] of [those] schools [was] to advance their particular religions.’” Id., at 379. The Court conducted its analysis by applying the three-part test set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971): “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” 473 U. S., at 382-383 (quoting Lemon, supra, at 612-613) (citations and internal quotation marks omitted). The Court acknowledged that, the Shared Time program served a purely secular purpose, thereby satisfying the first part of the so-called Lemon test. 473 U. S., at 383. Nevertheless, it ultimately concluded that the program had the impermissible effect of advancing religion. Id., at 385. The Court found that the program violated the Establishment Clause’s prohibition against “government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith” in at least three ways. Ibid. First, drawing upon the analysis in Meek v." }, { "docid": "22374284", "title": "", "text": "421 U. S. 723, 756 (1975) (Powell, J., concurring). The Balanced Treatment for Creation-Science and Evolution-Science Act (Act or Balanced Treatment Act), La. Rev. Stat. Ann. §17:286.1 et seq. (West 1982), provides in part: “[P]ublic schools within [the] state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact.” § 17:286.4(A). “Balanced treatment” means “providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom.” §17:286.3(1). “Creation-science” is defined as “the scientific evidences for creation and inferences from those scientific evidences.” §17:286.3(2). “Evolution-science” means “the scientific evidences for evolution and inferences from those scientific evidences.” §17:286.3(3). Although the Act requires the teaching of the scientific evidences of both creation and evolution whenever either is taught, it does not define either term. “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979). The “doctrine or theory of creation” is commonly defined as “holding that matter, the various forms of life, and the world were created by a transcendent God out of nothing.” Webster’s Third New International Dictionary 532 (unabridged 1981). “Evolution” is defined as “the theory that the various types of animals and plants have their origin in other preexisting types, the distinguishable differences being due to" }, { "docid": "962701", "title": "", "text": "We have carefully considered whether the Louisiana public school system could implement the “Balanced-Treatment Act” in a manner that would not offend the Establishment Clause. We conclude that it could not do so. Arguably, a public school curriculum could give balanced treatment to evolution and creationism without advocating the latter. A study of the Bible for its literary and historic qualities only would not involve advocacy of its content. A study of comparative religion or history of religion could be conducted without advocating the beliefs of any particular religious sect. Curricula such as those would be constitutional. (See School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963)). However, it is clear that the statute under consideration does not contemplate mere objective exposure of the creationism concept as part of a secular program designed to educate students concerning various theories of the origin of man and the universe. In considering whether the “Balanced Treatment Act” violates the Establishment Clause of the First Amendment, we make the same acknowledgment as did the Supreme Court in the oft-cited Lemon opinion: “Candor compels acknowledgment ... that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon v. Kurtzman, 403 U.S. 602 at 612, 91 S.Ct. 2105 at 2111, 29 L.Ed.2d 745 (1971). The following three-part test is applied in Lemon: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster “an excessive government entanglement with religion.” Id. at 612-13, 91 S.Ct. at 2111. The Court has not, however, adhered rigidly to the Lemon test. We quote from the recent nativity-scene opinion: “[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area.” Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 1362, 79 L.Ed.2d 604 (1984). Another view is that the First Amendment does not prohibit governmental activity of a religious nature so long as the" }, { "docid": "22374311", "title": "", "text": "trade or profession to which [it] refer[s].” La. Civ. Code Ann., Art. 15 (West 1952). The only evidence in the record of the “received meaning and acceptation” of “creation science” is found in five affidavits filed by appellants. In those affidavits, two scientists, a philosopher, a theologian, and an educator, all of whom claim extensive knowledge of creation science, swear that it is essentially a collection of scientific data supporting the theory that the physical universe and life within it appeared suddenly and have not changed substantially since appearing. See App. to Juris. Statement A-19 (Kenyon); id., at A-36 (Morrow); id., at A-41 (Miethe). These experts insist that creation science is a strictly scientific concept that can be presented without religious, reference. See id., at A-19 — A-20, A-35 (Kenyon); id., at A-36 — A-38 (Morrow); id., at A-40, A-41, A-43 (Miethe); id., at A-47, A-48 (Most); id., at A-49 (Clinkert). At this point, then, we must assume that the Balanced Treatment Act does not require the presentation of religious doctrine. Nothing in today’s opinion is plainly to the contrary, but what the statute means and what it requires are of rather little concern to the Court. Like the Court of Appeals, 765 F. 2d 1251, 1253, 1254 (CA5 1985), the Court finds it necessary to consider only the motives of the legislators who supported the Balanced Treatment Act, ante, at 586, 593-594, 596. After examining the statute, its legislative history, and its historical and social context, the Court holds that the Louisiana Legislature acted without “a secular legislative purpose” and that the Act therefore fails the “purpose” prong of the three-part test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612 (1971). As I explain below, infra, at 636-640, I doubt whether that “purpose” requirement of Lemon is a proper interpretation of the Constitution; but even if it were, I could not agree with the Court’s assessment that the requirement was not satisfied here. This Court has said little about the first component of the Lemon test. Almost invariably, we have effortlessly discovered a secular purpose for" }, { "docid": "22374282", "title": "", "text": "to be a religious doctrine. 2 App. E-798 — E-799. Of this group, the largest proportion of superintendents interpreted creation science, as defined by the Act, to mean the literal interpretation of the Book of Genesis. The remaining superintendents believed that the Act required teaching the view that “the universe was made by a creator.” Id., at E-799. The Court has previously found the postenactment elucidation of the meaning of a statute to be of little relevance in determining the intent of the legislature contemporaneous to the passage of the statute. See Wallace v. Jaffree, 472 U. S., at 57, n. 45; id., at 75 (O’Connor, J., concurring in judgment). Numerous other Establishment Clause eases that found state statutes to be unconstitutional have been disposed of without trial. E. g., Larkin v. Grendel’s Den, Inc., 459 U. S. 116 (1982); Lemon v. Kurtzman, 403 U. S. 602 (1971); Engel v. Vitale, 370 U. S. 421 (1962). Justice Powell, with whom Justice O’Connor joins, concurring. I write separately to note certain aspects of the legislative history, and to emphasize that nothing in the Court’s opinion diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum. I This Court consistently has applied the three-pronged test of Lemon v. Kurtzman, 403 U. S. 602 (1971), to determine whether a particular state action violates the Establishment Clause of the Constitution. See, e. g., Grand Rapids School Dist. v. Ball, 473 U. S. 373, 383 (1985) (“We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children”). The first requirement of the Lemon test is that the challenged statute have a “secular legislative purpose.” Lemon v. Kurtzman, supra, at 612. See Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973). If no valid secular purpose can be identified, then the statute violates the Establishment Clause. A “The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores," }, { "docid": "962704", "title": "", "text": "1981. No. 685, § 1. History and Source of Law Title of Act: An Act to amend Part III of Chapter I of Title 17 of the Louisiana Revised Statutes of 1950 by adding thereto a new Sub-Part, to be designated as Sub-Part D-2 thereof, comprised of Sections 286.1 through 286.7, both inclusive, relative to balanced treatment of creation-science and evolution-science in public schools, to require such balanced treatment, to bar discrimination on the basis of creationist or evolutionist belief, to provide definitions and clarifications, to declare the legislative purpose, to provide relative to inservice teacher training and materials acquisition, to provide relative to curriculum development, and otherwise to provide with respect thereto. Acts 1981, No. 685. § 286.2. Purpose This Subpart is enacted for the purposes of protecting academic freedom. Added by Acts 1981, No. 685. § 1. § 286.3. Definitions As used in this Subpart, unless otherwise clearly indicated, these terms have the following meanings: (1) “Balanced treatment” means providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom. (2) “Creation-science” means the scientific evidences for creation and inferences from those scientific evidences. (3) “Evolution-science” means the scientific evidences for evolution and inferences from those scientific evidences; (4) “Public schools” mean public secondary and elementary schools. Added by Acts 1981. No. 685. § 1. § 286.4. Authorization for balanced treatment; requirement for nondiscrimination A. Commencing with the 1982-1983 school year, public schools within this state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject" }, { "docid": "16051086", "title": "", "text": "every turn with the teaching of creationism, a religious belief. The statute therefore is a law respecting a particular religious belief. For these reasons, we hold that the Act fails to satisfy the first prong of the Lemon test and thus is unconstitutional. Nothing in our opinion today should be taken to reflect adversely upon creation-science either as a religious belief or a scientific theory. Nothing in our opinion today should be taken to reflect a hostile attitude toward religion. Rather we seek to give effect to the first amendment requirement that demands that no law be enacted favoring any particular religious belief or doctrine. We seek simply to keep the government, qua government, neutral with respect to any religious controversy. See Karen B. 653 F.2d at 901. The words of Chief Judge Charles Clark have special relevance here: “To say that the Constitution forbids what Louisiana ... [has] done is only to give effect to [the] special constitutional solicitude for the vitality of religion in American life.” Karen B., 653 F.2d at 903. The district court’s judgment is AFFIRMED. APPENDIX TITLE 17 GENERAL SCHOOL LAW SUB-PART D-2. BALANCED TREATMENT FOR CREATION-SCIENCE AND EVOLUTION-SCIENCE IN PUBLIC SCHOOL INSTRUCTION § 286.1. Short title This Subpart shall be known as the “Balanced Treatment for Creation-Science and Evolution-Science Act.” § 286.2. Purpose This Subpart is enacted for the purposes of protecting academic freedom. § 286.3. Definitions As used in this Subpart, unless otherwise clearly indicated, these terms have the fol- • lowing meanings: (1) “Balanced treatment” means providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom. (2) “Creation-science” means the scientific evidences for creation and inferences from those scientific evidences. (3) “Evolution-science” means the scientific evidences for evolution and inferences from those scientific evidences. (4) “Public schools” mean public secondary and elementary schools. § 286.4. Authorization for balanced treatment; requirement for nondiscrimination. A. Commencing with the 1982-1983 school year, public schools within" }, { "docid": "14188895", "title": "", "text": "the statute must not foster an ‘excessive government entanglement with religion.’ ” Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2106, 2111, 29 L.Ed.2d 745 (1971). Like the analysis required under the Free Exercise Clause, this Establishment Clause test does not authorize a balancing of competing interests. Rather, if a program violates any one of the Establishment Clause prongs the court must strike the program down. The Lemon test provides guidelines, rather than a precise formula, for identifying instances in which the objectives of the Establishment Clause have been impaired. Meek v. Pittenger, 421 U.S. 349, 359, 95 S.Ct. 1753, 1760, 44 L.Ed.2d 217 (1975). The Supreme Court has, however: particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children. The government’s activities in this area can have a magnified impact on impressionable young minds, and the occasional rivalry of parallel school systems offers an all-too-ready opportunity for divisive rifts along religious lines in the body politic. Grand Rapid School District v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 3223, 87 L.Ed.2d 267 (1985). In this case, the court is satisfied that M.G.L. c. 76, § 1 has a secular legislative purpose and its primary effect neither advances nor inhibits religion. However, the statute as East Longmeadow has sought to apply it to plaintiffs involves an excessive entanglement with religion. Thus, it violates the Establishment Clause. The first prong of the Lemon test is usually satisfied “when a plausible secular purpose for the State’s program may be discerned from the face of the statute.” Mueller v. Allen, 463 U.S. 388, 394-95, 103 S.Ct. 3062, 3067, 77 L.Ed.2d 721 (1983). In this case it is evident that M.G.L. c. 76, § 1 is, in pertinent part, intended to assure that children who attend private schools are adequately educated. This is a well recognized secular purpose. See, e.g., Mueller, 463 U.S. at 395, 103 S.Ct. at 3067; Committee for Public Education 444 U.S. at 653-54, 100 S.Ct. at 846 (1980). This obvious purpose is also a sincere purpose and not" }, { "docid": "16051087", "title": "", "text": "district court’s judgment is AFFIRMED. APPENDIX TITLE 17 GENERAL SCHOOL LAW SUB-PART D-2. BALANCED TREATMENT FOR CREATION-SCIENCE AND EVOLUTION-SCIENCE IN PUBLIC SCHOOL INSTRUCTION § 286.1. Short title This Subpart shall be known as the “Balanced Treatment for Creation-Science and Evolution-Science Act.” § 286.2. Purpose This Subpart is enacted for the purposes of protecting academic freedom. § 286.3. Definitions As used in this Subpart, unless otherwise clearly indicated, these terms have the fol- • lowing meanings: (1) “Balanced treatment” means providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom. (2) “Creation-science” means the scientific evidences for creation and inferences from those scientific evidences. (3) “Evolution-science” means the scientific evidences for evolution and inferences from those scientific evidences. (4) “Public schools” mean public secondary and elementary schools. § 286.4. Authorization for balanced treatment; requirement for nondiscrimination. A. Commencing with the 1982-1983 school year, public schools within this state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact. B. Public schools within this state and their personnel shall not discriminate by reducing a grade of a student or by singling out and publicly criticizing any student who demonstrates a satisfactory understanding of both evolution-science or creation-science and who accepts or rejects either model in whole or part. C. No teacher in public elementary or secondary school or instructor" }, { "docid": "962703", "title": "", "text": "activity is neutral to all religions. One conclusion seems clear: the meaning of the First Amendment is not set in constitutional stone. Whether one applies the “three-pronged” test of Lemon, the less rigid analysis of Lynch, or the views of those who contend that the First Amendment does not prohibit neutral state activity of a religious nature, the Louisiana statue violates the establishment clause. Because it promotes the beliefs of some theistic sects to the detriment of others, the statute violates the fundamental First Amendment principle that a state must be neutral in its treatment of religions. The First Amendment, as applied to the state by the Fourteenth, provides that the state “shall make no law respecting an establishment of religion.” “The Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act” is a “law respecting an establishment of religion.” ADDENDUM SUBPART D-2. BALANCED TREATMENT FOR CREATION-SCIENCE AND EVOLUTION-SCIENCE IN PUBLIC SCHOOL INSTRUCTION § 286.1. Short title This Subpart shall be known as the “Balanced Treatment for Creation-Science and Evolution-Science Act.” Added by Acts 1981. No. 685, § 1. History and Source of Law Title of Act: An Act to amend Part III of Chapter I of Title 17 of the Louisiana Revised Statutes of 1950 by adding thereto a new Sub-Part, to be designated as Sub-Part D-2 thereof, comprised of Sections 286.1 through 286.7, both inclusive, relative to balanced treatment of creation-science and evolution-science in public schools, to require such balanced treatment, to bar discrimination on the basis of creationist or evolutionist belief, to provide definitions and clarifications, to declare the legislative purpose, to provide relative to inservice teacher training and materials acquisition, to provide relative to curriculum development, and otherwise to provide with respect thereto. Acts 1981, No. 685. § 286.2. Purpose This Subpart is enacted for the purposes of protecting academic freedom. Added by Acts 1981, No. 685. § 1. § 286.3. Definitions As used in this Subpart, unless otherwise clearly indicated, these terms have the following meanings: (1) “Balanced treatment” means providing whatever information and instruction in both creation and evolution models the classroom teacher" }, { "docid": "22374312", "title": "", "text": "is plainly to the contrary, but what the statute means and what it requires are of rather little concern to the Court. Like the Court of Appeals, 765 F. 2d 1251, 1253, 1254 (CA5 1985), the Court finds it necessary to consider only the motives of the legislators who supported the Balanced Treatment Act, ante, at 586, 593-594, 596. After examining the statute, its legislative history, and its historical and social context, the Court holds that the Louisiana Legislature acted without “a secular legislative purpose” and that the Act therefore fails the “purpose” prong of the three-part test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612 (1971). As I explain below, infra, at 636-640, I doubt whether that “purpose” requirement of Lemon is a proper interpretation of the Constitution; but even if it were, I could not agree with the Court’s assessment that the requirement was not satisfied here. This Court has said little about the first component of the Lemon test. Almost invariably, we have effortlessly discovered a secular purpose for measures challenged under the Establishment Clause, typically devoting no more than a sentence or two to the matter. See, e. g., Witters v. Washington Dept. of Services for Blind, 474 U. S. 481, 485-486 (1986); Grand Rapids School District v. Ball, 473 U. S. 373, 383 (1985); Mueller v. Allen, 463 U. S. 388, 394-395 (1983); Larkin v. Grendel’s Den, Inc., 459 U. S. 116, 123-124 (1982); Widmar v. Vincent, 454 U. S. 263, 271 (1981); Committee for Public Education & Religious Liberty v. Regan, 444 U. S. 646, 654, 657 (1980); Wolman v. Walter, 433 U. S. 229, 236 (1977) (plurality opinion); Meek v. Pittenger, 421 U. S. 349, 363 (1975); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973); Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472, 479-480, n. 7 (1973); Tilton v. Richardson, 403 U. S. 672, 678-679 (1971) (plurality opinion); Lemon v. Kurtzman, supra, at 613. In fact, only once before deciding Lemon, and twice since, have we invalidated a" }, { "docid": "22374252", "title": "", "text": "with requiring, upon risk of sanction, the teaching of creation science whenever evolution is taught. Id., at 1257. The court found that the Louisiana Legislature’s actual intent was “to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief.” Ibid. Because the Creationism Act was thus a law furthering a particular religious belief, the Court of Appeals held that the Act violated the Establishment Clause. A suggestion for rehearing en banc was denied over a dissent. 778 F. 2d 225 (CA5 1985). We noted probable jurisdiction, 476 U. S. 1103 (1986), and now affirm. II The Establishment Clause forbids the enactment of any law “respecting an establishment of religion.” The Court has applied a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute’s principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). State action violates the Establishment Clause if it fails to satisfy any of these prongs. In this case, the Court must determine whether the Establishment Clause was violated in the special context of the public elementary and secondary school system. States and local school boards are generally afforded considerable discretion in operating public schools. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986); id., at 687 (Brennan, J., concurring in judgment); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 507 (1969). “At the same time ... we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.” Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853, 864 (1982). The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families" }, { "docid": "21557146", "title": "", "text": "practice or statute that fails to meet any of these requirements violates the Establishment Clause. See Edwards, 482 U.S. at 583, 107 S.Ct. at 2577. Only one Establishment Clause case since Lemon has not applied some form of this test. Edwards v. Aguillard, 482 U.S. 578, 583 n. 4, 107 S.Ct. 2573, 2577 n. 4, 96 L.Ed.2d 510 (1987) (referring to Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), which did not involve public schools); see also County of Allegheny v. ACLU, — U.S. -, 109 S.Ct. 3086, 3100 n. 4, 106 L.Ed.2d 472 (1989) (collecting cases that have used Lemon test); Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985) (“We have particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children.”). The district court properly and carefully applied this test and determined that the practice of invocations and benedictions at school graduations ran afoul of the second, “effect,” prong of the Lemon test. A. Secular Purpose The secular purpose prong of Lemon requires us to determine whether the predominant purpose of the practice in question is secular. The question is not whether there is or could be any secular purpose, but rather whether the actual predominant purpose is to endorse religion. Wallace, 472 U.S. at 56, 105 S.Ct. at 2489; see also Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (“The purpose prong ... asks whether the government’s actual purpose is to endorse or disapprove of religion.”). That requirement “is precisely tailored to the Establishment Clause’s purpose of assuring that Government not intentionally endorse religion or religious practice.” Wallace, 472 U.S. at 75, 105 S.Ct. at 2499 (O’Connor, J., concurring). In examining the secular purpose, the Court has examined whether the stated purpose is “sincere and not a sham.” See, e.g., Edwards, 482 U.S. at 587, 107 S.Ct. at 2579 (Louisiana’s creation science act, although purporting to foster ‘ academic freedom,” in fact did not have a secular purpose); Stone, 449 U.S." }, { "docid": "22996096", "title": "", "text": "nor inhibits religion . . . ; finally, the statute must not foster “an excessive government entanglement with religion.”’ Lemon v. Kurtzman, [403 U. S. 602, 612-613 (1971)]. To withstand attack under the establishment clause, the challenged state action must satisfy each of the three criteria. ” Id., at 627-628, 689 P. 2d, at 55. The Washington court had no difficulty finding the “secular purpose” prong of that test satisfied. Applying the second prong, however, that of “principal or primary effect,” the court held that “[t]he provision of financial assistance by the State to enable someone to become a pastor, missionary, or church youth director clearly has the primary effect of advancing religion.” Id., at 629, 689 P. 2d, at 56. The court, therefore, held that provision of aid to petitioner would contravene the Federal Constitution. In light of that ruling, the court saw no need to reach the “entanglement” prong; it stated that the record was in any case inadequate for such an inquiry. We granted certiorari, 471 U. S. 1002 (1985), and we now reverse. II The Establishment Clause of the First Amendment has consistently presented this Court with difficult questions of interpretation and application. We acknowledged in Lemon v. Kurtzman, 403 U. S. 602 (1971), that “we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Id., at 612, quoted in Mueller v. Allen, 463 U. S. 388, 393 (1983). Nonetheless, the Court’s opinions in this area have at least clarified “the broad contours of our inquiry,” Committee for Public Education and Religious Liberty v. Nyquist, 413 U. S. 756, 761 (1973), and are sufficient to dispose of this case. We are guided, as was the court below, by the three-part test set out by this Court in Lemon and quoted supra, at 484-485. See Grand Rapids School District v. Ball, 473 U. S. 373, 382-383 (1985). Our analysis relating to the first prong of that test is simple: all parties concede the unmistakably secular purpose of the Washington program. That program was designed to promote the well-being of the" }, { "docid": "22374250", "title": "", "text": "Justice Brennan delivered the opinion of the Court. The question for decision is whether Louisiana’s “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act (Creationism Act), La. Rev. Stat. Ann. §§17:286.1-17:286.7 (West 1982), is facially in valid as violative of the Establishment Clause of the First Amendment. I The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in “creation science.” § 17:286.4A. No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. Ibid. The theories of evolution and creation science are statutorily defined as “the scientific evidences for [creation or evolution] and inferences from those scientific evidences.” §§ 17.286.3(2) and (3). Appellees, who include parents of children attending Louisiana public schools, Louisiana teachers, and religious leaders, challenged the constitutionality of the Act in District Court, seeking an injunction and declaratory relief. Appellants, Louisiana officials charged with implementing the Act, defended on the ground that the purpose of the Act is to protect a legitimate secular interest, namely, academic freedom. Appellees attacked the Act as facially invalid because it violated the Establishment Clause and made a motion for summary judgment. The District Court granted the motion. Aguillard v. Treen, 634 F. Supp. 426 (ED La. 1985). The court held that there can be no valid secular reason for prohibiting the teaching of evolution, a theory historically opposed by some religious denominations. The court further concluded that “the teaching of ‘creation-science’ and ‘creationism,’ as contemplated by the statute, involves teaching ‘tailored to the principles’ of a particular religious sect or group of sects.” Id., at 427 (citing Epperson v. Arkansas, 393 U. S. 97, 106 (1968)). The District Court therefore held that the Creationism Act violated the Establishment Clause either because it prohibited the teaching of evolution or because it required the teaching of creation science with the purpose of advancing a particular religious doctrine. The Court of Appeals affirmed. 765 F. 2d 1251 (CA5 1985). The court observed that the statute’s avowed purpose of protecting academic freedom was inconsistent" } ]

[ { "docid": "14079569", "title": "", "text": "United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), which requires specific findings to support a perjury enhancement. A sentencing court may enhance a defendant’s offense level under § 3C1.1 “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense.” Perjury can be the basis for a § 3C1.1 increase, but not every instance of false testimony under oath warrants the enhancement. See Dunnigan, 507 U.S. at 94-95, 113 S.Ct. 1111; U.S.S.G. § 3C1.1 application note 2. In order to ensure that the obstruction of justice enhancement does not become a punishment for any defendant who chooses to exercise his right to testify, the district court “must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice, or an attempt to do the same.” Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111. Among the findings required are that the defendant’s misrepresentation was willful, material to the investigation or prosecution of the instant offense, and made with the specific intent to obstruct justice rather than as a result of confusion, mistake or faulty memory. Id. at 94, 113 S.Ct. 1111; see also United States v. Ewing, 129 F.3d 430, 434 (7th Cir.1997); United States v. Agostino, 132 F.3d 1183, 1198 (7th Cir.1997). Our review of the adequacy of the district court’s conclusions under Dunnigan is de novo, and any factual findings are reviewed for clear error. United States v. Gage, 183 F.3d 711, 715 (7th Cir.1999). Although Dunnigan does not impose an inflexible requirement that the sentencing court document its reasoning on each element of the alleged perjury, see United States v. Craig, 178 F.3d 891, 901 (7th Cir.1999), the district court’s findings must “encompass[ ] all of the factual predicates for a finding of perjury.” Id., quoting Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111. The inadequacy of the district court’s findings in this case are illustrated well by a comparison to our holding in Gage. There" } ]

[ { "docid": "7461286", "title": "", "text": "to determine whether the enhancement was warranted. We address each issue in turn, reviewing the district court’s interpretation and application of the Sentencing Guidelines de novo. United States v. Dawkins, 202 F.3d 711, 714 (4th Cir.2000) (“We review the factual findings of the district court for clear error, and we review its legal interpretation of the Sentencing Guidelines de novo.”). II. Jones argues that his conduct does not satisfy § 3C1.1 because the content of the alleged perjury was not related to the investigation, prosecution, and/or sentencing of his drug convictions but instead related to a domestic dispute. (J.A. at 453-54 (detailing sentencing hearing testimony that the shooting incident was not drug-related and was unrelated to the investigation, prosecution, or sentencing of the offenses charged in Jones’s indictment)). We reject Jones’s argument as contrary to § 3Cl.l’s text, commentary, and the relevant case law. Section 3C1.1 of the Sentencing Guidelines provides for a two-level enhancement of the defendant’s base offense level where (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction ...; or (ii) a closely related offense. U.S.S.G. § 3C1.1. The commentary to § 3C1.1 makes clear that the phrase “obstruct ] or impede[ ] ... the administration of justice” in clause (A) of § 3C1.1 includes committing, suborning, or attempting to suborn perjury. U.S.S.G. § 3C1.1 cmt. n. 4(b) (“The following is a non-exhaustive list of examples of the types of conduct to which this adjustment applies: ... (b) committing, suborning, or attempting to suborn perjury .... ”); see also United States v. Dunnigan, 507 U.S. 87, 92, 118 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (“Both parties assume the phrase ‘impede or obstruct the administration of justice’ includes perjury, and the commentary to § 3C1.1 is explicit in so providing.”). This is true regardless of whether the perjurious testimony is given during trial or during a pre-trial proceeding. United States v. Akinkoye," }, { "docid": "2221775", "title": "", "text": "his sen- fencing. On appeal, Martinez challenges the district court’s interpretation of the willfulness requirement,, an issue that we review de novo. United States v. Taylor, 272 F.3d 980, 982 (7th Cir.2001). Section 3C1.1 of the Sentencing Guidelines provides for a two-level upward adjustment if a defendant “willfully obstructs] or impedefs] ... the administration of justice with respect to ... sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. The section’s application notes go on to list numerous types of conduct that qualify as obstructive and to which the adjustment is intended to apply. U.S.S.G. § 3C1.1 cmt. n.3 & 4. Specifically, the notes make clear that “willfully failing to appear, as ordered, for a judicial proceeding” is “conduct to which [the obstruction] adjustment applies.” U.S.S.G. § 3C1.1 cmt. n.4(E). For better or worse, see United States v. Gage, 183 F.3d 711, 717-19 (7th Cir.1999) (Posner, C.J., concurring), we have interpreted § 3Cl.l’s use of the word “willfully” to require a specific intent to obstruct justice. United States v. Nurek, 578 F.3d 618, 623 (7th Cir.2009); United States v. McGiffen, 267 F.3d 581, 591 (7th Cir.2001). In light of the language used in the application notes, however, we have also held that engaging in the conduct listed in the notes (with that conduct’s requisite intent) is often sufficient — on its own — to permit imposition of the adjustment. See, e.g., United States v. Freitag, 230 F.3d 1019, 1026 (7th Cir.2000) (“[A]ll that is required to impose the obstruction of justice enhancement on perjury grounds is that the court make a finding that encompasses the factual predicates for a finding of perjury.” (citing United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)); United States v. Cotts, 14 F.3d 300, 307-08 (7th Cir.1994) (adjustment properly applied so long as the defendant intentionally engaged in the conduct listed in note 4(1) of § 3C1.1). For failure to appear cases, we have concluded that the adjustment is triggered if the defendant knew that he had to appear in court and voluntarily and intentionally failed to do" }, { "docid": "18941927", "title": "", "text": "States v. Hickok, 77 F.3d 992, 1007 (7th Cir.1996) (internal quotation marks and citations omitted). In adjusting Craig’s base offense level, the district court turned to, among others, U.S.S.G. § 3C1.1, which deals with “Obstructing or Impeding the Administration of Justice.” This Sentencing Guideline advises courts to increase the offense level by two levels “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense....” U.S.S.G. § 3C1.1. To apply this enhancement, a district court must make separate findings that “establish a willful impediment to or obstruction of justice, or an attempt to do the same.... ” United, States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). A defendant who merely denies her guilt has not earned the two-level increase. See Hickok, 77 F.3d at 1007. Courts often apply this enhancement for perjury. See id. at 1006; U.S.S.G. § 3C1.1 cmt. 3(b). When instructing courts about this enhancement, the Supreme Court points them toward the federal criminal perjury statute and defines perjury as occurring when a witness, who testifies under oath or affirmation, gives false testimony about a material matter with the willful intent to do so, rather than as a result of mistake, faulty memory, or confusion. See Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111 (citing 18 U.S.C. § 1621(1)). In a perfect world, the district court would always make a separate and clear finding for each element of the alleged perjury, but the Supreme Court has realized that the ideal is not always possible. See id. at 95, 113 S.Ct. 1111. Thus, it has instructed that as long as the district court “makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury,” an appellate court can uphold the enhancement. See id. We find no merit to Craig’s contentions that the district court did not make specific findings in regard to two of the factual predicates necessary for a finding of" }, { "docid": "23630576", "title": "", "text": "two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Section 3C1.1 permits courts to increase a defendant’s offense level if he “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice.” U.S.S.G. § 3C1.1. Perjury is a well-settled example of conduct that warrants an obstruction enhancement. United States v. Bermea-Boone, 563 F.3d 621, 626-27 (7th Cir.2009). A witness commits perjury “if, while under oath, he ‘gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confesión, mistake, or faulty memory.’ ” Id. at 627 (quoting United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)). On appeal, “[w]e review the factual findings underlying the district court’s application of the obstruction enhancement for clear error, and we review de novo whether those findings adequately support the enhancement.” United States v. Anderson, 580 F.3d 639, 648 (7th Cir.2009). The district court found that Vallar committed perjury when he testified that he signed the Miranda waiver because the agents tricked him by presenting the waiver form as a property receipt. In light of testimony from agents present when Vallar signed the waiver indicating that he freely and voluntarily waived his Miranda rights, the district court concluded that Vallar’s testimony was false and that he knew it was false. Vallar raises two challenges. First, he cites United States v, Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), to argue that the district court erred by failing to make sufficient findings that Vallar committed perjury. 507 U.S. at 95, 113 S.Ct. 1111 (“[I]f a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition we have set out. When doing so, it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding. The district court’s determination" }, { "docid": "18941926", "title": "", "text": "Craig’s second challenge to her sentence involves the district court’s increase of her offense level by two levels because it concluded she was less than honest when testifying about her role as a recruiter for Riviera. In reaching its conclusion, the district court relied upon the testimony of two other witnesses and Craig’s 1099 tax forms. It found these sources more credible than Craig’s denial. Craig claims that in reaching this conclusion the district court did not make the required specific findings of perjury. We disagree. Because enhancements under U.S.S.G. § 3C1.1 involve the factual finding that the defendant willfully obstructed or attempted to obstruct justice, we defer to the district court’s conclusions and reverse them only for clear error. See United States v. Agostino, 132 F.3d 1183, 1198 (7th Cir.1997), cert. denied, — U.S.-, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998). We will overturn the district court’s factual findings relating to sentencing “only if our review of the record leaves us with a definite and firm conviction that a mistake has been committed.” United States v. Hickok, 77 F.3d 992, 1007 (7th Cir.1996) (internal quotation marks and citations omitted). In adjusting Craig’s base offense level, the district court turned to, among others, U.S.S.G. § 3C1.1, which deals with “Obstructing or Impeding the Administration of Justice.” This Sentencing Guideline advises courts to increase the offense level by two levels “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense....” U.S.S.G. § 3C1.1. To apply this enhancement, a district court must make separate findings that “establish a willful impediment to or obstruction of justice, or an attempt to do the same.... ” United, States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). A defendant who merely denies her guilt has not earned the two-level increase. See Hickok, 77 F.3d at 1007. Courts often apply this enhancement for perjury. See id. at 1006; U.S.S.G. § 3C1.1 cmt. 3(b). When instructing courts about this enhancement, the Supreme Court" }, { "docid": "14725776", "title": "", "text": "committed perjury, as defined in 18 U.S.C. § 1621. Section 3C1.1 identifies several examples of obstructive conduct that warrant a two-level enhancement, including “committing, suborning, or attempting to suborn perjury.” U.S.S.G. § 3C1.1 cmt. n.4 (B). A defendant commits perjury if, while testifying under oath, he “gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (citing 18 U.S.C. § 1621(1)). To apply the enhancement, a district court should make findings as to false testimony, materiality, and willful intent. United States v. Johnson, 612 F.3d 889, 893 (7th Cir.2010). Although it is preferable for a district court to make separate findings for each element, such findings “are not strictly necessary so long as the court determined that the defendant lied to the judge and jury about matters crucial to the question of the defendant’s guilt.” Id. (quoting United States v. White, 240 F.3d 656, 662 (7th Cir.2001)); accord Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111 (“The district court’s determination that enhancement is required is sufficient ... [if] the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury.”). In this case, the presentence investigation report (PSR) applied the § 3C1.1 obstruction of justice enhancement, relying on the defendant’s denial at trial that the cocaine found in the residence belonged to him. During sentencing, Judge Randa acknowledged that he did not preside over the trial and then applied the following analysis: Relative to the obstruction of justice, the Court is laboring under the same deficieneies-or at least not deficiencies, but certainly not the same position as the trial Judge relative to 3C1.1. And that the analysis of the statements pretrial to the authorities were different than at the trial. The issue is whether or not there was sufficient difference in the versions of post-arrest statements and the trial testimony that resulted in the application of" }, { "docid": "4898243", "title": "", "text": "(citations omitted). Factual findings are reviewed for clear error. United States v. Singh, 483 F.3d 489, 496 (7th Cir.2007) (citing United States v. Ellis, 440 F.3d 434 (7th Cir. 2006)). If the sentence is procedurally sound, it is then reviewed for substantive reasonableness under an abuse-of-discretion standard. United States v. Are, 590 F.3d 499, 530 (7th Cir.2009) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Scott, 555 F.3d 605, 608 (7th Cir.2009)). Obstruction of Justice Section 3C1.1 of the Sentencing Guidelines provides for a two-level enhancement if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1(A) (2009). Committing perjury is specifically listed as an example of conduct that warrants such an enhancement. See U.S.S.G. § 3C1.1 Application Note 4(b). To apply an enhancement on the basis that the defendant perjured himself, the district court should make a finding as to all of the factual predicates necessary for a finding of perjury: false testimony, materiality, and willful intent. United States v. Seward, 272 F.3d 831, 838 (7th Cir.2001) (Seward) (citing United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (Dunnigan)). Although it is preferable to have the district court address each element of the alleged perjury in a clear and separate finding, “separate findings are not strictly necessary so long as the court determined that the defendant lied to the judge and jury about matters crucial to the question of the defendant’s guilt.” United States v. White, 240 F.3d 656, 662 (7th Cir.2001) (White) (citing United States v. Hickok, 77 F.3d 992, 1008 (7th Cir.1996) (Hickok)). To lie, after all, is “to present false information with the intention of deceiving,” American Heritage Dictionary of the English Language (4th ed.2009) — a definition which encompasses two of the three elements of perjury. If the lie occurs under oath and concerns a material issue, it is perjury. This court has upheld obstruction enhancements in the absence of clear, individualized" }, { "docid": "2221776", "title": "", "text": "(7th Cir.2009); United States v. McGiffen, 267 F.3d 581, 591 (7th Cir.2001). In light of the language used in the application notes, however, we have also held that engaging in the conduct listed in the notes (with that conduct’s requisite intent) is often sufficient — on its own — to permit imposition of the adjustment. See, e.g., United States v. Freitag, 230 F.3d 1019, 1026 (7th Cir.2000) (“[A]ll that is required to impose the obstruction of justice enhancement on perjury grounds is that the court make a finding that encompasses the factual predicates for a finding of perjury.” (citing United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)); United States v. Cotts, 14 F.3d 300, 307-08 (7th Cir.1994) (adjustment properly applied so long as the defendant intentionally engaged in the conduct listed in note 4(1) of § 3C1.1). For failure to appear cases, we have concluded that the adjustment is triggered if the defendant knew that he had to appear in court and voluntarily and intentionally failed to do so. See, e.g., United States v. Curb, 626 F.3d 921, 928-29 (7th Cir.2010); United States v. Bolden, 279 F.3d 498, 502 (7th Cir.2002). Martinez seizes on these requirements, arguing that his failure to appear was neither intentional nor voluntary. He first claims that — because he based his decision to abscond on fear — he could not have behaved intentionally and the adjustment could not be applied. This argument misapprehends the intent necessary to trigger the adjustment and flies in the face of our controlling precedent. As we held in Curb, a defendant’s personal motivations for not showing up for sentencing are generally irrelevant to the intent question; rather, it is enough for intent’s sake that the defendant made a conscious decision— regardless of the reason — not to appear, thereby deterring the administration of justice. See Curb, 626 F.3d at 929 (defendant’s decision not to appear was intentional conduct deserving of the adjustment even if motivated by “fear” or “any other emotion”). Martinez neither disputes Curb’s reasoning nor draws a meaningful distinction between the" }, { "docid": "820062", "title": "", "text": "Seals, 419 F.3d at 608. This is not the case here. Savage testified to the existence of the other threats, so the post-conduct threats were not the only evidence in support of his defense. Nor were the post-conduct threats, which were both remote and vague in their meaning, the primary evidence of coercion. Savage’s detailed description of the threats on the morning of July 29, 2003 was the primary evidence. The exclusion of Valdez’s subsequent threats was not so fundamental to Savage’s defense that it had a substantial effect on the jury. C. Obstruction of Justice Enhancement Savage’s third challenge involves the district court’s decision to enhance his sentence by two levels for obstruction of justice. We review de novo the adequacy of the district court’s obstruction of justice findings and any underlying factual findings for clear error. United States v. Carroll, 412 F.3d 787, 793 (7th Cir.2005). A court may impose a two-level enhancement under U.S.S.G. § 3C1.1 if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.” Perjury is the sort of conduct that may warrant an obstruction of justice enhancement. See United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993); see also U.S.S.G. § 3C1.1, cmt. n. 4. Perjury, for enhancement purposes, is defined as giving under oath false testimony concerning a material matter with the willful intent to provide such testimony, rather than as a result of confusion, mistake, or faulty memory. Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (relying on the definition in the federal criminal perjury statute, 18 U.S.C. § 1621). In order to impose the obstruction enhancement, the district court must make independent findings necessary to establish all of three factual predicates for a finding of perjury (false testimony, materiality, and willful intent). Id. at 95, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445. It is preferable, though not absolutely required, for the court to address each element of the" }, { "docid": "22315854", "title": "", "text": "the light most favorable to the Government, and deferring to the jury’s evaluation of the credibility of the witnesses, we are satisfied that there was sufficient evidence to support Hickok’s conviction. Accordingly, there was no manifest miscarriage of justice. See Bo-len, 45 F.3d at 143. B. Sentence Enhancement for Obstruction of Justice As an initial matter, we note that even if the district court had not applied the two-level enhancement of which Hickok complains, it could still have sentenced him to the same term of imprisonment: 33 months. As explained above, supra note 8, the applicable Guidelines range before the enhancement was 27-33 months; while after the enhancement it was 33^41 months. Thus, if this court were to remand Hickok’s case for re-sentencing, it is quite conceivable that the outcome would be identical. Under these circumstances, we are not persuaded that lengthy and detailed appellate consideration of Hickok’s sentencing arguments represents the best or most efficient allocation of scarce judicial resources. Nevertheless, a brief discussion follows. 1. Standard of Review The Sentencing Guidelines permit a sentencing court to enhance a defendant’s offense level by two points if it finds, by a preponderance of the evidence, that the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1; United States v. Brown, 900 F.2d 1098, 1103 (7th Cir.1990) (obstruction of justice need only be established by a preponderance of the evidence). Actual prejudice to the Government as a result of the defendant’s conduct is not required. United States v. Nobles, 69 F.3d 172, 192 (7th Cir.1995). In other words, the defendant’s “ultimate lack of success in obstructing justice will not relieve his responsibility for his attempt to do so.” Id. Perjury is a well-established example of conduct that warrants an enhancement for obstruction of justice. U.S.S.G. § 3C1.1 cmt. 3(b); United States v. Woody, 55 F.3d 1257, 1273 (7th Cir.1995) (citing United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)). One commits perjury if, while under oath, he" }, { "docid": "820063", "title": "", "text": "justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.” Perjury is the sort of conduct that may warrant an obstruction of justice enhancement. See United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993); see also U.S.S.G. § 3C1.1, cmt. n. 4. Perjury, for enhancement purposes, is defined as giving under oath false testimony concerning a material matter with the willful intent to provide such testimony, rather than as a result of confusion, mistake, or faulty memory. Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (relying on the definition in the federal criminal perjury statute, 18 U.S.C. § 1621). In order to impose the obstruction enhancement, the district court must make independent findings necessary to establish all of three factual predicates for a finding of perjury (false testimony, materiality, and willful intent). Id. at 95, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445. It is preferable, though not absolutely required, for the court to address each element of the alleged perjury in a separate and clear finding. Id. If the court fails to address each element clearly, the enhancement will withstand scrutiny if the court makes a finding that “encompasses all of the factual predicates for the finding of perjury.” Id.; United States v. Bass, 325 F.3d 847, 850 (7th Cir.2003). As a threshold matter, the district court did not specifically identify which of the Savage’s statements at trial were, in fact, perjurious. We have remanded for resen-tencing when the district court failed to identify specific statements as perjury. United States v. McGiffen, 267 F.3d 581, 591 (7th Cir.2001); United States v. Seward, 272 F.3d 831, 838-39 (7th Cir.2001). At the sentencing hearing, the government identified two statements as perjury requiring an obstruction enhancement: first, Savage’s testimony that on the morning of July 29, 2003, Valdez threatened to shoot Savage if he did not carry out the drug deal; and second, Savage’s testimony that he told Dr. Rubin and government agents about this threat. The government elicited testimony from Special Agent Brazao and Dr." }, { "docid": "5364310", "title": "", "text": "the defendants’ attempt to exploit the victim’s vulnerability will result in an enhancement even if that vulnerability did not exist at the time the defendant initially targeted the victim.” United States v. Thomas, 62 F.3d 1332, 1345 (11th Cir.1995). When Arguedas targeted Ramos and his church, knowing of their precarious financial situation, he targeted vulnerable victims. Under our Page decision, that alone justifies the sentencing enhancement. Therefore, we need not consider whether Arguedas’s personal relationship with his victim justifies the vulnerable victim enhancement. B. The Obstruction of Justice Adjustment Section 3C1.1 of the Sentencing Guidelines provides for a two-level upward adjustment to a defendant’s offense level “[i]f the defendant willfully obstructed or impeded, or at tempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense. ...” U.S.S.G. § 3C1.1 (1994). Examples of such conduct include providing materially false statements to a judge, or to a law enforcement officer, that significantly obstruct or impede the official investigation or prosecution of the offense. U.S.S.G. § 3C1.1 (1994), comment, (n. 3(f), (g), (h)). This Court reviews the district court’s factual finding that a defendant obstructed justice only for clear error. United States v. Bagwell, 30 F.3d 1454, 1458 (11th Cir.1994). We review the district court’s application of the Guidelines to that factual finding de novo. Id. Although it is preferable that the district court make specific findings as to each alleged instance of obstruction by identifying the materially false statements individually, United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993), it is sufficient if the court makes a general finding of obstruction of justice that encompasses all of the factual predicates of perjury, id.; see also United States v. Dobbs, 11 F.3d 152, 154-55 (11th Cir.1994). In Dunnigan, the district court had not identified specific instances of obstruction. The court had, however, stated that: the defendant was untruthful at trial with respect to material matters in this case. [B]y virtue of her failure to give truthful testimony on material matters that were designed to substantially affect the" }, { "docid": "2221774", "title": "", "text": "timely appealed his sentence. II. Discussion Properly distilled, Martinez’s challenge rests on two grounds. He claims that the district court erroneously applied an obstruction of justice adjustment to his offense level and that his sentence was generally unreasonable. We will review each claim in turn. A. Obstruction of Justice Adjustment Martinez begins by contesting the sentencing adjustment he received for obstruction of justice. The government argued for the adjustment at Martinez’s recent sentencing hearing because he failed to present himself for his initial sentencing hearing, instead absconding for several years. Martinez responded that his flight was motivated by fear of his former gang associates, who he claimed had made threats to retaliate against him in prison, and not by any abstract desire to frustrate justice. As such, Martinez argued that he did not “willfully” obstruct justice, as required for application of the adjustment. The district court agreed that Martinez was motivated by fear, but found that he still acted willfully within the meaning of the adjustment because he voluntarily and intentionally failed to appear at his sen- fencing. On appeal, Martinez challenges the district court’s interpretation of the willfulness requirement,, an issue that we review de novo. United States v. Taylor, 272 F.3d 980, 982 (7th Cir.2001). Section 3C1.1 of the Sentencing Guidelines provides for a two-level upward adjustment if a defendant “willfully obstructs] or impedefs] ... the administration of justice with respect to ... sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. The section’s application notes go on to list numerous types of conduct that qualify as obstructive and to which the adjustment is intended to apply. U.S.S.G. § 3C1.1 cmt. n.3 & 4. Specifically, the notes make clear that “willfully failing to appear, as ordered, for a judicial proceeding” is “conduct to which [the obstruction] adjustment applies.” U.S.S.G. § 3C1.1 cmt. n.4(E). For better or worse, see United States v. Gage, 183 F.3d 711, 717-19 (7th Cir.1999) (Posner, C.J., concurring), we have interpreted § 3Cl.l’s use of the word “willfully” to require a specific intent to obstruct justice. United States v. Nurek, 578 F.3d 618, 623" }, { "docid": "7461287", "title": "", "text": "the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction ...; or (ii) a closely related offense. U.S.S.G. § 3C1.1. The commentary to § 3C1.1 makes clear that the phrase “obstruct ] or impede[ ] ... the administration of justice” in clause (A) of § 3C1.1 includes committing, suborning, or attempting to suborn perjury. U.S.S.G. § 3C1.1 cmt. n. 4(b) (“The following is a non-exhaustive list of examples of the types of conduct to which this adjustment applies: ... (b) committing, suborning, or attempting to suborn perjury .... ”); see also United States v. Dunnigan, 507 U.S. 87, 92, 118 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (“Both parties assume the phrase ‘impede or obstruct the administration of justice’ includes perjury, and the commentary to § 3C1.1 is explicit in so providing.”). This is true regardless of whether the perjurious testimony is given during trial or during a pre-trial proceeding. United States v. Akinkoye, 185 F.3d 192, 205 (4th Cir.1999) (“We have held that perjurious testimony given in pre-trial proceedings may be considered in determining whether to apply the enhancement.”); see also United States v. Adam, 296 F.3d 327, 334 (5th Cir.2002) (holding that obstruction of justice enhancement was warranted for perjury committed during hearing on defendant’s motion to withdraw guilty plea); United States v. Martinez, 169 F.3d 1049, 1056 (7th Cir.1999) (same); United States v. Hover, 293 F.3d 930, 935 (6th Cir.2002) (holding that obstruction of justice en-haneement was warranted for perjury given in prior trial). In a case involving § 3C1.1 prior to its amendment in 1998, this court concluded that the perjurious statements need not be about the offense of conviction; it is enough if the perjurious statements were given “ ‘during the investigation, prosecution, or sentencing of the instant offense.’ ” United States v. Romulus, 949 F.2d 713, 717 (4th Cir.1991) (quoting U.S.S.G. § 3C1.1 and holding that § 3C1.1 enhancement was appropriate for defendant who gave false testimony regarding his age and identity during" }, { "docid": "9278149", "title": "", "text": "First, Savage argues that the district court erroneously applied a 2-level sentencing enhancement for obstruction of justice. The U.S. Sentencing Guidelines Manual (\"U.S.S.G.\") § 3C1.1 (U.S. Sentencing Comm'n 2016) provides for a 2-level enhancement when a defendant \"willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction....\" The enhancement applies when a defendant \"provid[es] materially false information to a judge or magistrate judge\" or \"to a probation officer in respect to a presentence or other investigation for the court.\" U.S.S.G. § 3C1.1 cmt. n.4(F), (H). Before applying a sentencing enhancement for obstruction of justice, the court must find by a preponderance that the defendant: \"(1) gave false testimony; (2) concerning a material matter; (3) with the willful intent to deceive (rather than as a result of confusion, mistake, or faulty memory).\" United States v. Jones , 308 F.3d 425, 428 n.2 (4th Cir. 2002) (citations omitted); see also United States v. Dunnigan , 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Information is \"material\" when, \"if believed, would tend to influence or affect the issue under determination.\" U.S.S.G. § 3C1.1 cmt. n.6. \"In order to have acted willfully within the meaning of this guideline, a defendant must consciously act with the purpose of obstructing justice.\" United States v. Romulus , 949 F.2d 713, 717 (4th Cir. 1991) (internal quotation marks omitted). The sentencing court also \"must specifically identify the perjurious statements and make a finding either as to each element of perjury or 'that encompasses all of the factual predicates for a finding of perjury.' \" United States v. Akinkoye , 185 F.3d 192, 205 (4th Cir. 1999) (quoting United States v. Gordon , 61 F.3d 263, 270 (4th Cir. 1995) ); see also Dunnigan , 507 U.S. at 95, 113 S.Ct. 1111 (providing an example of acceptable specificity when the court stated that \"the defendant was untruthful at trial with respect to material matters,\" and that this untruthfulness was \"designed to substantially affect the outcome of the case\")." }, { "docid": "14725775", "title": "", "text": "administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1 (2010). This obstructive conduct must be “related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense.” Id. At Johnson’s sentencing, Judge Randa determined that an obstruction of justice enhancement applied because Johnson’s pretrial statements to authorities were different from those offered at trial, to such an extent that the differences could not be a result of “mistake or faulty memory.” (Sent. Tr. at 6.) We review a district court’s factual findings for clear error and application of the sentencing guidelines de novo. United States v. McCauley, 659 F.3d 645, 652 (7th Cir.2011). Johnson offers two arguments in favor of reversing the sentencing judge’s decision to apply the § 3C1.1 enhancement. First, Johnson notes that Judge Randa failed to identify a specific statement made by Johnson at trial which was inconsistent with his post-arrest statements. Second, Johnson argues that Judge Randa did not make appropriate findings that he committed perjury, as defined in 18 U.S.C. § 1621. Section 3C1.1 identifies several examples of obstructive conduct that warrant a two-level enhancement, including “committing, suborning, or attempting to suborn perjury.” U.S.S.G. § 3C1.1 cmt. n.4 (B). A defendant commits perjury if, while testifying under oath, he “gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (citing 18 U.S.C. § 1621(1)). To apply the enhancement, a district court should make findings as to false testimony, materiality, and willful intent. United States v. Johnson, 612 F.3d 889, 893 (7th Cir.2010). Although it is preferable for a district court to make separate findings for each element, such findings “are not strictly necessary so long as the court determined that the defendant lied to the judge and jury about matters crucial to the question of the defendant’s guilt.” Id. (quoting United States v. White, 240 F.3d 656," }, { "docid": "34434", "title": "", "text": "his employer, went beyond lying on a 1040 form); United States v. Jagim, 978 F.2d 1032, 1042 (8th Cir.1992) (noting that a § 2Tl.l(b)(2) enhancement is appropriate where the government demonstrates that the scheme is more than a “routine tax-evasion case,” such as falsifying a Form 1040 to avoid paying federal taxes); United States v. Becker, 965 F.2d 383, 390 (7th Cir.1992) (affirming a § 2Tl.l(b)(2) enhancement for the defendant’s conduct in eliminating all bank accounts in his name and depositing his earnings in his son’s account). Although we recognize that Brooks could have taken even more intricate steps to avoid payment of his federal income taxes, we cannot ignore the sophisticated, evasive actions he did take. See United States v. Madoch, 108 F.3d 761, 766 (7th Cir.1997). We, therefore, find no error in the district court’s imposition of a two-point enhancement on this basis. F. Brooks establishes a valid ground for appeal in challenging the district court’s two-point enhancement for obstruction of justice, U .S.S.G. § 3C1.1. Brooks contends that the district court did not make sufficient findings of fact to support an obstruction of justice enhancement. He further argues that the district court lacked a basis for imposing an upward adjustment to his guideline score. We agree on both counts. A district court may impose an enhancement under § 3C1.1 only where the defendant “willfully obstructed or impeded, ... the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” United States v. Eagle, 133 F.3d 608, 611 (8th Cir.1998) (quoting U.S.S.G. § 3C1.1). This section also encompasses committing or suborning perjury. See United States v. Berndt, 86 F.3d 803, 810 (8th Cir.1996); United States v. Gleason, 25 F.3d 605, 608 (8th Cir.1994); U.S.S.G. § 3C1.1, comment. (n. 3(b)). However, before imposing an enhancement under § 3C1.1, a district court “must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice.” United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Although not required, it is preferable for the district court to" }, { "docid": "11176166", "title": "", "text": "bicarbonate in order to establish, for the purposes of Section 2D1.1, that a substance is crack. Accordingly, we cannot say that the district court clearly erred in determining that Mr. Bryant conspired to distribute more than fifty grams of crack cocaine. 3. The district court concluded that Mr. Bryant made material misrepresentations during his first plea withdrawal hearing, in which he claimed that he was pressured into pleading guilty and that his former attorney told him that he was unprepared for trial. Therefore, the district court imposed a two-level enhancement for obstruction of justice under Section 3C1.1 of the Sentencing Guidelines. U.S.S.G. § 3C1.1. We review for clear error the district court’s factual finding underlying the decision to impose the enhancement. United States v. Griffin, 310 F.3d 1017, 1022 (7th Cir.2002). An obstruction of justice enhancement may be imposed when a defendant has “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. The obstructive conduct must be related to the “offense of conviction and any relevant conduct” or a “closely related offense.” Id. “Committing, suborning, or attempting to suborn perjury supports an obstruction enhancement.” Griffin, 310 F.3d at 1023 (citing U.S.S.G. § 3C1.1 cmt. n. 4(b)). “In order to find obstruction based on perjury, the sentencing court must find that the defendant willfully made misrepresentations under oath that were relevant to the prosecution, and specifically intended to obstruct justice.” United States v. Carroll, 412 F.3d 787, 793 (7th Cir.2005) (citing United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)). Mr. Bryant claims that the Government failed to demonstrate that he made false representations with the intent to obstruct justice. Although he admits that the statements he made at the plea withdrawal hearing conflicted with his former attorney’s testimony, he claims that the statements were an honest, though perhaps inaccurate, recollection of his discussions with his attorney. He asserts that his statements were not the result of a specific intent to obstruct justice," }, { "docid": "7709433", "title": "", "text": "loss would still exceed $500,000. Thus, a redetermination of the fraud loss is unjustified. 2. Obstruction of Justice Enhancement In sentencing Freitag, the district court adjusted her offense level upward after concluding that Freitag had obstructed justice within the meaning of U.S.S.G. § 3C1.1 by committing perjury at trial. The district court found that Freitag had lied in testifying about three matters: (1) calls she made to a doctor’s office; (2) the conduct of a federal agent during the investigation; and (3) whether certain (unspecified) conversations with her employees occurred. Freitag challenges the district court’s obstruction of justice ruling on the grounds that the court did not make the necessary findings on the elements of perjury and that at least the first two instances of alleged perjury do not actually qualify as perjury. This court reviews the adequacy of a district court’s perjury findings de novo and reviews a district court’s factual findings that the defendant committed perjury for clear error. United States v. Gage, 183 F.3d 711, 715 (7th Cir.1999). Under the Sentencing Guidelines, perjury at trial constitutes obstruction of justice and subjects a defendant to an upward adjustment in offense level: U.S.S.G. § 3C1.1 cmt. 4; United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). A defendant commits perjury under this provision if he or she “gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111. While it is advisable for a district court to make specific and clear findings on each instance of perjury, all that is required to impose the obstruction of justice enhancement on perjury grounds is that the court make a finding that encompasses the factual predicates for a finding of perjury. Id. at 95, 113 S.Ct. 1111. Freitag first contends that the district court did not make sufficient findings of specific intent with respect to any of the three alleged instances of perjury. However, this position cannot be maintained in face of the" }, { "docid": "3514868", "title": "", "text": "or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1; United States v. Hickok, 77 F.3d 992, 1006 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 1701, 134 L.Ed.2d 800 (1996). The notes to this section list “committing, suborning, or attempting to suborn perjury” as examples of conduct that warrant the enhancement. U.S.S.G. § 3C1.1, application n. 3. Section 3C1.1 applies when a defendant provides false testimony at his own trial “concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993); United States v. Johnson-Dix, 54 F.3d 1295, 1311-12 (7th Cir.1995). A simple denial of guilt, however, is not a basis for an obstruetion-of-justiee enhancement. Hickok, 77 F.3d at 1007 (citation omitted). As a procedural matter, the Supreme Court’s Dunnigan decision requires that “if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice, or an attempt to do the same____” Dunnigan, 507 U.S. at 95, 113 S.Ct. at 1117. Citing these principles, Godinez argues that the district court failed to make a specific finding of perjury and that his testimony was merely a general denial of guilt. We review the district court’s obstruction-of-justice finding for clear error. Johnson-Dix, 54 F.3d at 1312 (citation omitted). Our cases hold that “a district judge deciding whether to apply a sentence enhancement for obstruction of justice need not conduct a mini-trial with respect to each of the defendant’s false statements, nor is it necessary for the sentencing judge to set forth his findings specifically in terms of the elements of perjury.” Hickok, 77 F.3d at 1008. The district court’s findings at Godi-nez’s sentencing hearing were as follows: The Court heard the testimony of Mr. Godinez. Remembers it clearly. And the Court is of the opinion that if a defendant gets" } ]

[ { "docid": "842192", "title": "", "text": "See also Fed.R.Civ.P. 62(c). Turning to the merits of the instant motion, the critical question appears to be whether the SBA has ignored, or clearly intends to ignore, the Court’s admonishment to make a threshold “articulation of the standards or criteria which it utilizes in making its determination of eligibility under 13 C.F.R. § 124.8-1 (1977).” Opinion at 249. In a December 7, 1977 letter, the SBA, apparently for the first time, made it clear to plaintiffs that the standards to be applied would be the eligibility criteria set forth in paragraph 18 of an informally published operating manual. SBA, Office of Business Development, Section 8(a) Program Standard Operating Procedures' at 30-32, para. 18 (Feb. 2, 1976). The government had not identified any operative standards in its original opposition to plaintiffs’ application for preliminary injunctive relief; the Court was unaware of the existence of the paragraph 18 criteria until reviewing the SBA’s opposition to the instant motion. The plaintiffs should not, therefore, read this Court’s November opinion as making an implicit determination of the inadequacy or unlawfulness of these criteria. The paragraph 18 standards are rather detailed, and are not in apparent conflict with the substantive regulation set out in 13 C.F.R. § 124.8-1. There is no reason to fault the agency for pointing to the eligibility standards as the standards which will be applied in this case. The Court’s opinion did not direct, and plaintiffs have not contended, that the SBA should engage in formal rulemaking proceedings in order to make its “threshold articulation of standards.” Administrative agencies are not required to resort to the formal rulemaking procedures of 5 U.S.C. § 553 (1976), i.e., legislative type rulemaking, in order to develop and articulate all policies, procedures, and interpretive rules. As stated in 5 U.S.C. § 553(b): “Except when [formal rulemaking procedures are] required by statute, this subsection does not apply — (A) to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice Where 5 U.S.C. § 553 is inapplicable, the only general statutory requirement for formal publication or advance notice of agency policy," } ]

[ { "docid": "10317545", "title": "", "text": "wrestling teams, resulting from educational institutions’ efforts to comply with Title IX. And, for the reasons set forth in the portions of this opinion addressing Counts I and II, plaintiffs have not met the Article III standing requirements. C. Merits COUNT III While Count III is the only claim for which plaintiffs have made a threshold showing of Article III standing, it is clear on the record before this Court that the allegations relating to Count III are insufficient to confer jurisdiction on this Court. Plaintiffs’ rebanee on this section of the Administrative Procedure Act as conferring jurisdiction on this Court to hear their claims is misplaced for several reasons. First and foremost, Section 553, by its terms, does not apply “to interpretive rules, general statements of policy, or rules of agency organization, procedure or practice” unless notice or hearing is required by statute. 5 U.S.C. § 553(e). Plaintiffs concede that the 1979 Policy Interpretation and proposed 1996 Clarification challenged in their October 1995 submission are “interpretive rules.” Tr. Hr’g 10/15/02 at 52 (“Yeah, they’re interpretive rules, I think both of them, both interpreting the regulation.”). Moreover, plaintiffs ask this Court to construe plaintiff NWCA’s response to the proposed 1996 Clarification as a petition to amend or repeal. However, such a construction would be strained to say the least. Defendant clearly points out that plaintiffs October 1995 letter did not expressly ask DoE to amend or repeal its interpretive rules or the 1975 Regulations. It was clearly filed in response to the draft of the 1996 Clarification, for which the letter of transmittal made abundantly clear that DoE did not intend, by soheiting comments on the sufficiency of the clarification provided, to revisit the substance of the 1979 Policy Interpretation and the Three Part Test. See Tr. Hr’g 10/15/02 at 35; see also Edison Elec. Inst. v. Interstate Commerce Comm’n, 969 F.2d at 1230 (refusing to construe a substantive comment as a petition for rescission, noting that “barring extreme arbitrariness,” courts defer to the agency’s decisions regarding their own dockets); Henley v. FDA, 873 F.Supp. 776, 780 (E.D.N.Y.1995) (noting agency’s" }, { "docid": "23454361", "title": "", "text": "the APA’s notice and comment requirements. 5 U.S.C. § 553(b)(A). Nonetheless, Rivera argues that the district court correctly ruled, under the common law of administrative procedure, that notice and an opportunity for public comment were required because the directive had a substantial impact. The district court’s ruling was based on the holdings of several other courts that even interpretative rules must comply with the notice and comment procedure if they have a “substantial impact.” See, e.g., Pharmaceutical Manufacturers Ass’n v. Finch, 307 F.Supp. 858, 863 (D.Del.1970); 2 K. Davis, Administrative Law Treatise § 7:17 (2d ed. 1979) [hereafter “Davis”]. The theory behind these cases is that, although section 553 does not require the notice and comment procedure for interpretative rules, it also does not prohibit it, and the APA was not intended to cut off the prior developing case law which required agencies to use fair procedure. Davis, § 7:18 at 89. Other courts, however, have rejected the notion that agencies must comply with the notice and comment procedure for interpretative rules which have a substantial impact. See, e.g., Energy Reserves Group, Inc. v. Dept. of Energy, 589 F.2d 1082, 1094 (Temp.Emer.Ct.App.1978). The argument against the substantial impact test is that Congress considered the matter and, in section 553, explicitly excepted “interpretative rules [and] general statements of policy” from the notice and comment procedure. Davis, § 7:18 at 88. Furthermore, agencies now freely issue interpretative rules, and requiring agencies to use the notice and comment procedure would deter them from issuing such rules to the detriment of those who look to the agencies for guidance. Id. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), the Supreme Court east considerable doubt on the viability of those cases holding that the notice and comment procedure may be judicially required even where not required by the terms of the APA. Vermont Yankee concerned the application of section 553. Unlike this case, in Vermont Yankee the notice and comment procedure was required by the APA. The question was whether additional" }, { "docid": "23454360", "title": "", "text": "Auto Workers Union to intervene as parties plaintiff, and then reinstated its judgment. The addition of Volck and the Union as named plaintiffs cured the possible standing problem. The case is now back before this court. II NOTICE AND PUBLIC COMMENT REQUIREMENT Unemployment Insurance Program Letter (“UIPL”) Directive Number 7-81, issued by the Secretary, explains to the states how they are to apply the pension offset rules contained in 26 U.S.C. § 3304(a)(15). Rivera contended in the district court that the directive was invalid because the Secretary had failed to provide notice and an opportunity for public comment. The district court agreed, holding that, regardless of whether the Administrative Procedure Act (“APA”) applied, notice and an opportunity for public comment were required because the directive had “a substantial impact upon the rights of private parties.” 524 F.Supp. at 148. Rivera argues that the district court’s analysis is correct. He apparently concedes that the APA does not require notice and an opportunity for public comment since the directive is an “interpretative rule,” and therefore exempt from the APA’s notice and comment requirements. 5 U.S.C. § 553(b)(A). Nonetheless, Rivera argues that the district court correctly ruled, under the common law of administrative procedure, that notice and an opportunity for public comment were required because the directive had a substantial impact. The district court’s ruling was based on the holdings of several other courts that even interpretative rules must comply with the notice and comment procedure if they have a “substantial impact.” See, e.g., Pharmaceutical Manufacturers Ass’n v. Finch, 307 F.Supp. 858, 863 (D.Del.1970); 2 K. Davis, Administrative Law Treatise § 7:17 (2d ed. 1979) [hereafter “Davis”]. The theory behind these cases is that, although section 553 does not require the notice and comment procedure for interpretative rules, it also does not prohibit it, and the APA was not intended to cut off the prior developing case law which required agencies to use fair procedure. Davis, § 7:18 at 89. Other courts, however, have rejected the notion that agencies must comply with the notice and comment procedure for interpretative rules which have a" }, { "docid": "19195545", "title": "", "text": "rule because it does more than clarify the manufacturers’ existing obligations. Instead, the Coalition contends, the letter reverses agency policy in that it (i) changes the VA’s position as to whether the TRICARE Pharmacy Ben efits Program is covered by the VHCA and (ii) requires that manufacturers pay refunds. It therefore is substantive. The Coalition argues that the VA recognized the Dear Manufacturer letter represents a reversal of policy because it makes statements concerning the policy ramifications for affected industries. The Coalition also contends that the agency action affected “individual rights and obligations” by requiring affirmative actions from all manufacturers and is therefore a substantive rule. Thus, the Coalition argues, the Dear Manufacturer is more than a mere interpretative rule. With respect to the content of the Dear Manufacturer letter, the Coalition contends that the letter must be set aside on two grounds. First, the Coalition argues that the letter is substantively invalid because it relies on erroneous constructions of “procure,” “covered drug,” and “depot” as used in section 8126. Second, the Coalition contends that the letter is procedurally defective because the government did not comply with sections 552(a)(1) and 553 before issuing the letter, and therefore it must be set aside. The government characterizes the Dear Manufacturer letter as an order, which is not referred to in 5 U.S.C. §§ 552(a)(1) or 553 and is therefore not reviewable under 38 U.S.C. § 502. In support of this characterization, the government points out that, in its opening brief, the Coalition frequently characterizes the Dear Manufacturer letter as an order. The government also argues that the Dear Manufacturer letter does not actually represent a decision to require refunds: In actuality, the Secretary decided in October of 2002 to require the refunds. The Dear Manufacturer letter merely implements that de-cisión or provides public notice of that decision. In the alternative, the government argues that even if the Dear Manufacturer letter is a rule rather than an order, it is an interpretative rule for which no notice and comment procedures are required. The letter is interpretative, the government urges, because it merely interprets" }, { "docid": "19195556", "title": "", "text": "Contrary to the government’s arguments, we find that the Dear Manufacturer letter did more than just interpret the VHCA. The establishment of a refund system comprises a form of gap filling that is substantive in nature rather than a mere interpretation of a statutory term. We also reject the government’s argument that the letter merely implements the policy set forth in the White Paper. The White Paper merely proposed an interpretation of section 8126; it did not set forth a refund system and mandate compliance. In contrast, the Dear Manufacturer letter establishes a refund system and requires that manufacturers comply. Further, an agency’s characterization of its actions as interpretative is not dispositive. See Splane, 216 F.3d at 1063. Thus, we find that the VA’s contention that the letter is interpretative does not alter our conclusion that the Dear Manufacturer letter comprises a substantive rule. V. We next determine whether the Dear Manufacturer letter is reviewable under section 502. As required for jurisdiction under section 502, we hold that sections 552(a)(1) and 553 apply to the Dear Manufacturer letter because it is a substantive rule and not an order or an interpretative rule. Contrary to the government’s argument that the Coalition is seeking review of DOD’s actions, the Dear Manufacturer letter was authored by the Acting Executive Director of the VA National Acquisition Center and is therefore “[a]n action of the Secretary” under section 502. We conclude that we have jurisdiction to review the Dear Manufacturer under 38 U.S.C. § 502. VI. Finally, we address the Coalition’s arguments that the Dear Manufacturer letter must be set aside because it is a substantive rule and the agency did not comply with the procedures set forth in sections 552(a)(1) and 553 before issuing the letter. This issue requires little discussion. Under 5 U.S.C. § 706(2)(D), we must set aside an agency action that is made “without observance of procedure required by law.” As seen, section 553 requires that an agency comply with notice and comment procedures before issuing a substantive rule. An agency’s failure to comply with notice and comment proce dures is" }, { "docid": "18720451", "title": "", "text": "to the language actually used by the agency; we have, for example, found decisive the choice between the words “will” and “may.” Compare American Bus, 627 F.2d at 532 (use of “will” indicates statement is in fact a binding norm) with Guardian Federal, 589 F.2d at 666 (use of “may” indicates statement is a “general statement of policy”). Applying these principles to the case at hand, we are persuaded that the FDA action levels are legislative rules and thus subject to the notice-and-comment requirements of section 553. While FDA now characterizes the action levels as policy statements, see, e.g., Supplemental Brief for Appellee at 7 (“In sum, action levels do not bind courts, food producers or FDA.”), a variety of factors, when considered in light of the criteria set out in American Bus, indicate otherwise. First. The language employed by FDA in creating and describing action levels suggests that those levels both have a present effect and are binding. Specifically, the agency’s regulations on action levels explain an action level in the following way: [A]n action level for an added poisonous or deleterious substance ... may be established to define the level of contamination at which food will be deemed to be adulterated. An action level may prohibit any detectable amount of substance in food. 21 C.F.R. § 109.4 (1986) (emphasis added). This language, speaking as it does of an action level “defining]” the acceptable level and “prohibitpng]” substances, clearly reflects an interpretation of action levels as presently binding norms. This type of mandatory, definitive language is a powerful, even potentially dispositive, factor suggesting that action levels are substantive rules. Cf. Cathedral Bluffs, 796 F.2d at 538. Moreover, the regulations provide that an action level may appropriately be established whenever there exist the same conditions required to establish a formal tolerance, if, in addition, the “appropriateness” of the tolerance may change in the near future because, for example, of technological changes. 21 C.F.R. § 109.6(c); see also id. § 109.6(b) (requirements for establishing a tolerance). Second. This view of action levels — as having a present, binding effect — is" }, { "docid": "14731829", "title": "", "text": "Appeals for the Federal Circuit.” 38 U.S.C. § 502 (1994). The Administrative Procedure Act requires agencies to publish certain rules. This advance publication requirement, however, does not apply to all changes in policy, but instead applies to “rules of procedure,” “substantive rules of general applicability adopted as authorized by law,” “statements of general policy,” “interpretations of general applicability formulated and adopted by the agency,” and “each amendment, revision, or repeal” of such a rule. 5 U.S.C. § 552(a)(l)(C)-(E) (1994). Section 553 of title 5 imposes specific requirements on an agency that is involved in “rule making,” as defined by 5 U.S.C. §§ 551(4) and 551(5). The repeal of 38 C.F.R. § 3.101 falls within the statutory definition of rule making. , See 5 U.S.C. § 551(5) (1994). Therefore, 5 U.S.C. § 553 governs the procedures that the agency must use to repeal the regulation. An alleged failure to comply with these requirements clearly falls within the jurisdic tion of this court as defined by 38 U.S.C. § 502: Thus, this court may directly review the agency’s repeal of 38 U.S.C. § 3.101. Ill The agency repealed 38 C.F.R. § 3.101. That section read, in pertinent part: “All decisions will conform to the statutes and regulations of the Department of Veterans Affairs and to the precedent opinions of the General Counsel.” PVA argues that 5 U.S.C. § 553 required the agency to provide the public with notice of, and an opportunity to comment on, this action before its effective date. “Under section 553 of [title 5], certain agency action requires prior public notice and' comment.” See Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 927 (Fed.Cir. 1991). The Administrative Procedure Act provides: (b)General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments____ 5 U.S.C. § 553 (1994). However," }, { "docid": "2775491", "title": "", "text": "to produce radioactive drugs to be dispensed under a prescription — which precisely describes the process by which nuclear pharmacies compound PET radiopharmaceuticals— were not required to register under § 510 of the Act. The Guideline also indicated that if a nuclear pharmacist was not required to register, that other of the Act’s requirements, including the new drug provision and compliance with current good manufacturing practices, would not apply. Syncor filed suit in the district court challenging FDA’s 1995 publication. Syncor brought three claims, alleging that: (1) FDA lacked jurisdiction over PET drugs under the new drug provision of § 505 of the Act, which requires premarket approval for drugs introduced or delivered for introduction into interstate commerce, because PET drugs do not move in interstate commerce; (2) FDA violated the Tenth Amendment to the United States Constitution by regulating pharmacies in the absence of clear congressional authorization to do so, since pharmacy is an area traditionally reserved for state regulation; and (3) FDA violated the Administrative Procedure Act’s requirement that an agency engaged in rulemaking give notice of its proposed ' rulemaking to the public, 5 U.S.C. § 553(b) (1994), and “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” 5 U.S.C. § 553(c) (1994). The district judge granted summary judgment in FDA’s favor on all three claims. We consider the APA claim first since if notice and comment are required we think it prudent to defer deciding the other two issues which presumably would be explored in a future rulemaking. II. The APA exempts from notice and comment interpretative rules or general statements of policy. 5 U.S.C. § 553(b)(3)(A) (1994). Before the district court the FDA characterized its 1995 publication as merely “guidance” (a general statement of policy). The district judge disagreed, concluding that it was a rule, but an interpretative one. Here, FDA concedes that the publication is a “rule,” and adopts the district court’s conclusion. Syncor still contends that the publication is a substantive regulation. We have long recognized that it is quite difficult to distinguish" }, { "docid": "20877785", "title": "", "text": "describing the organization, procedure, or practice requirements of an agency....”); id. § 551(5) (“ ‘[Rjule making’ means agency process for formulating, amending, or repealing a rule.”). Thus, it is clear that the rulemak-ing provisions of the APA apply here. The question is whether Defendants are exempt from complying with specific procedural mandates within those rulemaking provisions. Section 553 of Title 5, United States Code, dictates the formal rulemaking procedures by which an agency must abide when promulgating a rule. Under Section 553(b), “[gjeneral notice of proposed rule making shall be published in the Federal Register.” 5 U.S.C. § 553(b). The required notice must include “(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.” Id. Upon providing the requisite notice, the agency must give interested parties the opportunity to participate and comment and the right to petition for or against the rule. See id. § 553(c)-(e). There are two express exceptions to this notice-and-comment requirement, one of which Defendants argue applies in this case. Pursuant to Section 553(b)(3)(A), the APA’s formal rulemaking procedures do not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Id. § 553(b)(3)(A). On the other hand, if a rule is “substantive,” this exception does not apply, and all notice- and-comment requirements “must be adhered to scrupulously.” Shalala, 56 F.3d at 595. The Fifth Circuit has stressed that the “ ‘APA’s notice and comment exemptions must be narrowly construed.’ ” Id. (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C.Cir.1989)). The APA does not define “general statements of policy” or “substantive rules”; however, the Case law in this area is fairly well-developed and provides helpful guidelines in characterizing a rule. With that said, the analysis substantially relies on the specific facts of a given case and, thus, the results are not always consistent. Here, Plaintiffs’ procedural APA claim turns on whether the" }, { "docid": "9925513", "title": "", "text": "from Chrysler and Guernsey that the Court’s reference to a regulation having the “force and effect of law” is to the binding effect of that regulation on tribunals outside the agency, not on the agency itself. See also Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 929-30 (Fed.Cir.1991) (“A limitation of [agency] discretion, by itself, does not make an agency action ‘substantive.’ ”). In the present case, because Petitioners do not suggest that VAOPGCPREC 14-98 has any binding effect whatsoever outside the agency, on the CAVC, or on this court, their reliance on Guernsey is misplaced. We conclude that VAOPGCPREC 14-98 is an interpretive rule and therefore not subject to the notice and comment procedures of the APA. B Petitioners next argue that, even if notice and comment procedures are not re quired under the APA for the general counsel's opinion in question, the DVA violated the FOIA publication requirements of 5 U.S.C. § 552(a)(1) (1994) by publishing only a synopsis, rather than the entire text, of VAOPGCPREC 14-98 in the Federal Register. The FOIA requires agencies to publish \"substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.\" 5 U.S.C. § 552(a)(1)(D) (1994). General counsel opinions are specifically included in the latter category pursuant to 38 U.S.C. § 501(c), which states: \"[i]n applying section 552(a)(1) of title 5 to the Department, the Secretary shall ensure that subparagraphs (C), (D), and (B) of that section are complied with, particularly with respect to opinions and interpretations of the General Counsel.\" (emphasis added). See also 38 C.F.R. § 14.507(b) (\"Written legal opinions [of the General Counsel] designated as precedent opinions shall be considered by Department of Veterans Affairs to be subject to the provisions of 5 U.S.C. 552(a)(1).\"). The government argues that section 552(a)(1)(D) does not require publication of the legal analysis or basis for interpretive rules. It contrasts section 552(a)(1)(D) with section 553, which sets forth the notice and comment requirement for legislative rulemaking. Because section 553 requires publication of \"a concise general statement" }, { "docid": "18720461", "title": "", "text": "the Supreme Court held in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), FDA enjoys complete discretion not to employ the enforcement provisions of the FDC Act, and those decisions are not subject to judicial review. As this court recently concluded, the “provisions [of the FDC Act] authorize, but do not compel the FDA to undertake enforcement activity; they ‘commit complete discretion to the [FDA] to decide how and when they should be exercised.’ ” Schering Corp. v. Heckler, 779 F.2d 683, 686 (D.C.Cir.1985) (quoting Heckler v. Chaney, 105 S.Ct. at 1658). In light of this principle, CNI’s arguments on the blending issue must fall. Ill In conclusion, we find FDA’s action levels to be invalid in that they were issued without the requisite notice-and-comment procedures, but we reject CNI’s challenge to FDA’s disinclination to initiate enforcement action against certain blended corn. Accordingly, the case is remanded to the District Court for further proceedings not inconsistent with this opinion. It is so ordered. . Aflatoxins are by-products of certain common molds that grow on various crops, including corn. . The APA defines “rule\" as \"the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy____” 5 U.S.C. § 551(4). FDA does not dispute that its action levels are indeed \"rules.” The notice-and-comment requirements of section 553 are thus unquestionably triggered and the only question before us is whether one of the statutory exceptions to notice and comment is applicable. . See also Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 536-37 (D.C.Cir.1986) (\"[T]here is no axiom to distinguish between a regulation and general statements of policy.\"). . The first criterion from American Bus could be read as facially inconsistent with the APA. Specifically, criterion one appears to indicate that interpretative rules must be solely prospective:- \"[C]ourts have said that, unless a pronouncement acts prospectively, it is a binding norm.” 627 F.2d at 529. Since under the APA, interpretative rules can be developed and offered as present indications of" }, { "docid": "18700489", "title": "", "text": "under 42 U.S.C. § 407. Besides depriving claimants of retroactive RSDI benefits in violation of 42 U.S.C. § 407, the Secretary’s policy harms claimants by reducing the amount of past due benefits out of which attorney’s fees can be withheld under 42 U.S.C. § 406(b). In enacting 42 U.S.C. § 406, Congress intended to encourage lawyers to represent disability claimants. See Dawson v. Finch, 425 F.2d 1192 (5th Cir.1970), cert. denied, 400 U.S. 830, 91 S.Ct. 60, 27 L.Ed.2d 60 (1970). The Secretary’s policy contravenes that effort. For these reasons, the court concludes that the Secretary’s policy of delaying the calculation of RSDI benefits is contrary to the Social Security Act. C. The Alleged Violations of the Administrative Procedure Act Plaintiff alleges that the Secretary has violated the APA, 5 U.S.C. § 553, et seq., by issuing provisions of the Program Operations Manual System (POMS) §§ GN02610.005 and GN02610.045, without complying with the formal rule-making and publication requirements. Plaintiff claims that the challenged policies do not fit into any of the limited exceptions to the formal rule-making requirements since these policies are substantive, affecting individual rights and objections. In addition, plaintiff argues that publication in the Federal Register is required under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a), since the provisions contain interpretations of general applicability. The Secretary, on the other hand, contends that the challenged POMS sections do not violate the APA. First, the Secretary contends that she is not barred by the Social Security Administration’s 1971 “statement of policy” which voluntarily assumed the notice and comment procedures of the APA. 5 U.S.C. § 553(a)(2), which exempts from the rule-making requirements matters relating to “grants” or “benefits”, would then apply she argues. Second, even if the court finds as a general rule that the Secretary must follow the notice and comment procedures of the APA, she maintains that 5 U.S.C. § 553(b)(A) exempts the POMS since they are staff instructions which do not change the law as does a substantive rule. Finally, the Secretary contends that the POMS do not violate the FOIA, for they are" }, { "docid": "2775492", "title": "", "text": "rulemaking give notice of its proposed ' rulemaking to the public, 5 U.S.C. § 553(b) (1994), and “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” 5 U.S.C. § 553(c) (1994). The district judge granted summary judgment in FDA’s favor on all three claims. We consider the APA claim first since if notice and comment are required we think it prudent to defer deciding the other two issues which presumably would be explored in a future rulemaking. II. The APA exempts from notice and comment interpretative rules or general statements of policy. 5 U.S.C. § 553(b)(3)(A) (1994). Before the district court the FDA characterized its 1995 publication as merely “guidance” (a general statement of policy). The district judge disagreed, concluding that it was a rule, but an interpretative one. Here, FDA concedes that the publication is a “rule,” and adopts the district court’s conclusion. Syncor still contends that the publication is a substantive regulation. We have long recognized that it is quite difficult to distinguish between substantive and interpretative rules. See Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 587 (D.C.Cir.1997); American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1108-09 (D.C.Cir.1993); see also American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C.Cir.1987) (“spectrum between a clearly interpretive rule and a clearly substantive one is a hazy continuum”); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir.1984) (en banc) (“the distinction between legislative and interpretative rules is enshrouded in considerable smog”) (citation omitted). Further confusing the matter is the tendency of courts and litigants to lump interpretative rules and policy statements together in contrast to substantive rules, a tendency to which we have ourselves succumbed on occasion. See Community Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C.Cir.1987). That causes added confusion because interpretative rules and policy statements are quite different agency instruments. An agency policy statement does not seek to impose or elaborate or interpret a legal norm. It merely represents an agency position with respect to how it will treat" }, { "docid": "18801522", "title": "", "text": "deficient not only for lack of publication in the Federal Register under section 552(a)(1)(D) but also because the A.P.A. rulemaking procedures were not followed by the IHS in its issuance. The A.P.A. rulemaking scheme generally requires that an agency’s adoption of new rules be attended by: advance notice of proposed rulemaking published in the Federal Register; opportunity for interested persons to participate and submit views to the agency; and a statement by the agency as to the rules’ basis and purpose. 5 U.S. C.A. § 553 (1967). Exempt from these general notice and comment requirements are “interpretive rules” and “general statements of policy.” 5 U.S.C.A. § 553(b)(A) (1967). Also, section 553, by its own terms, exempts from its procedural requirements matters “relating to . public property, loans, grants, benefits or contracts.” 5 U.S.C.A. § 553(a)(2) (1967). The IHS policy in question was subject to the general notice and comment requirements of section 553 since no exemptions were applicable. The policy in question effects a substantial change in existing statutes and regulations, and it has a direct and significant impact upon the substantive rights of a segment of the general public. See pp. 659-660 supra. Under these circumstances, the IHS policy statement was not exempt from A.P.A. rulemaking requirements as an “interpretive rule” or a “general statement of policy” within the meaning of section 553(b)(A). See Morton v. Ruiz, supra at 236, 94 S.Ct. 1055; Texaco v. F.P.C., 412 F.2d 740 (3rd Cir. 1969); Anderson v. Butz, supra; Nader v. Butterfield, 373 F.Supp. 1175 (D.D.C.1974); Continental Oil Co. v. Burns, 317 F.Supp. 194 (D.Del. 1970); Pharmaceutical Mfr’s Ass’n v. Finch, 307 F.Supp. 858 (D.Del.1970). Further HEW, the agency of which the IHS is a part, has placed itself under the procedural requirements of section 553 in all its rule-making relating to “public property, loans, grants, benefits or contracts.” 36 Fed.Reg. 2536 (Feb. 5, 1971). Thus, the IHS was bound to comply with A.P.A. rulemaking procedures in this case despite the otherwise applicable exemption found at subsection (a)(2) of section 553. Morton v. Ruiz, supra at 235, 94 S.Ct. 1055; Rodway v." }, { "docid": "18700490", "title": "", "text": "formal rule-making requirements since these policies are substantive, affecting individual rights and objections. In addition, plaintiff argues that publication in the Federal Register is required under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a), since the provisions contain interpretations of general applicability. The Secretary, on the other hand, contends that the challenged POMS sections do not violate the APA. First, the Secretary contends that she is not barred by the Social Security Administration’s 1971 “statement of policy” which voluntarily assumed the notice and comment procedures of the APA. 5 U.S.C. § 553(a)(2), which exempts from the rule-making requirements matters relating to “grants” or “benefits”, would then apply she argues. Second, even if the court finds as a general rule that the Secretary must follow the notice and comment procedures of the APA, she maintains that 5 U.S.C. § 553(b)(A) exempts the POMS since they are staff instructions which do not change the law as does a substantive rule. Finally, the Secretary contends that the POMS do not violate the FOIA, for they are not interpretive rules of general applicability which change existing practice, but are staff instructions which have been available under the applicable section of the FOIA, 5 U.S.C. § 552(a)(2)(C). The challenged POMS sections are clearly rules as defined in 5 U.S.C. § 551(4). Unless specifically excepted by 5 U.S.C. §§ 553(a) or 553(b)(AHB), the POMS sections should have been promulgated with notice and an opportunity for public participation. The challenged provisions are not exempt from the rule-making requirements of the APA under § 553(a), however, even though they pertain to “grants” or “benefits”. The Secretary’s attempt to retract the 1971 waiver is ineffective. See Humana of South Carolina Inc. v. Califano, 590 F.2d 1070, 1084 and n. 104 (D.C.Cir.1978), affirming 419 F.Supp. 253, 260 (D.D.C.1976); Arlington Oil Mills Inc. v. Knebel, 543 F.2d 1092, 1095 n. 6 (5th Cir.1976). Nor are the POM provisions exempt under § 553(b)(A) which excludes “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice....” 5 U.S.C. § 553(b)(A). An interpretive rule is one that simply" }, { "docid": "18720447", "title": "", "text": "21 U.S.C. § 346; (2) the action level violated the Administrative Procedure Act because it constitutes a legislative rule issued without the requisite notice-and-comment procedures, see 5 U.S.C. § 553; and (3) FDA’s decision to permit adulterated corn to be blended with unadulterated corn to bring the total contamination within the action level violated the FDC Act. The District Court granted summary judgment in favor of FDA on each issue. In our initial opinion, we confined ourselves to CNI’s first argument. We concluded that the FDC Act, by stating that FDA “shall promulgate regulations,” 21 U.S.C. § 346, required that FDA issue formal regulations or “tolerances,” rather than informal action levels. Having invalidated the action level on this ground, we concluded that CNI’s APA argument was thus rendered moot and that the blending issue stood in need of reevaluation on remand. See 757 F.2d 354 (D.C.Cir.1985). The Supreme Court reversed our decision, — U.S. -, 106 S.Ct. 2360, 90 L.Ed.2d 959, holding that the FDC Act was not so clear as to preclude FDA’s interpretation of the statute under which the agency could lawfully proceed by way of action levels. 106 S.Ct. 2360 (1986). Since the Court did not reach the APA or blending issues, it remanded the case to this court for “further proceedings consistent with [its] opinion.” Id. at 2366. Thus, with the first issue resolved by the High Court, we must now address the still pending APA and blending issues. I Under the APA, agency rules may be issued only after the familiar notice-and-comment procedures enumerated in the statute are completed. See 5 U.S.C. § 553. It is undisputed that the action level at issue here was promulgated sans those procedures. FDA, however, argues that notice-and-comment requirements do not apply by virtue of subsection (b)(3)(A) of section 553, which carves out an exception for “interpretative rules [and] general statements of policy.” According to the FDA, action levels represent nothing more than nonbinding statements of agency enforcement policy. CNI, on the other hand, argues that the action levels restrict enforcement discretion to such a degree as to constitute" }, { "docid": "19195557", "title": "", "text": "Dear Manufacturer letter because it is a substantive rule and not an order or an interpretative rule. Contrary to the government’s argument that the Coalition is seeking review of DOD’s actions, the Dear Manufacturer letter was authored by the Acting Executive Director of the VA National Acquisition Center and is therefore “[a]n action of the Secretary” under section 502. We conclude that we have jurisdiction to review the Dear Manufacturer under 38 U.S.C. § 502. VI. Finally, we address the Coalition’s arguments that the Dear Manufacturer letter must be set aside because it is a substantive rule and the agency did not comply with the procedures set forth in sections 552(a)(1) and 553 before issuing the letter. This issue requires little discussion. Under 5 U.S.C. § 706(2)(D), we must set aside an agency action that is made “without observance of procedure required by law.” As seen, section 553 requires that an agency comply with notice and comment procedures before issuing a substantive rule. An agency’s failure to comply with notice and comment proce dures is grounds to set aside an agency rule. See Nat’l Org. of Veterans’ Advocates, 260 F.3d at 1375 (“Failure to allow notice and comment, where required, is grounds for invalidating the rule.”). Having found that the Dear Manufacturer letter is a substantive rule, the sole question is whether the agency complied with section 553. It is undisputed that notice and comment procedures of section 553 were not followed before the issuance of the Dear Manufacturer letter. Therefore, we set aside the Dear Manufacturer letter because it is procedurally defective under 5 U.S.C. § 553 and remand the matter to the agency for compliance with the APA’s procedural requirements, including both 5 U.S.C. §§ 552(a)(1) and 553. CONCLUSION For the foregoing reasons, we hold that the Dear Manufacturer letter comprises a substantive rule that was enacted without compliance with the procedures required by the APA. We therefore set aside the letter as procedurally defective and remand the matter to the VA for compliance with the procedures required by the APA. COSTS Each party shall bear its own" }, { "docid": "14190116", "title": "", "text": "a procedural requirement the disregard of which could impair a separate concrete interest’ ”. Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 446 (9th Cir.1994), quoting Lujan, 504 U.S. at 572, 112 S.Ct. at 2142. As a veterinarian, Takhar has a strong claim of a concrete interest in FDA policy on enforcement of veterinary extra-label drug use. The lack of notice and comment, however, does not constitute an injury to Takhar because the FDA was not required to provide notice and comment in issuing these CPGs. The Administrative Procedure Act (APA) generally requires notice-and-comment procedures for the issuance of rules other than “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”. 5 U.S.C. § 553(b)(A). Because the CPGs are “interpretive” rules or policy statements, they are exempt from the notice-and-comment procedure. This court has distinguished between the two types of rules as follows: “Substantive rules are those which effect a change in existing law or policy. Interpretive rules are those which merely clarify or explain existing law or regulations.” Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir.1983) (citation omitted). In determining into which category to place a particular rule, the court “must inquire into the substance and effect of the policy pronouncement”, Anderson v. Butz, 550 F.2d 459, 463 (9th Cir.1977). The CPGs that Takhar challenges are interpretive rules because they do not create any obligations or rights with respect to extra-label veterinary drug use. It is the FDCA itself that makes such use illegal. The challenged CPGs merely set forth which instances of such illegal use the FDA is likely to view as requiring it to take enforcement action and which instances, while technically violative of the statute, will not ordinarily be subject to enforcement action. Thus, these CPGs do not “effect a change in existing law or policy”, Powderly, 704 F.2d at 1098, but rather explain how the FDA will use its limited resources in enforcing existing law. See Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592, 596 n. 27 (5th Cir.1995) (court determination that one CPG was" }, { "docid": "11133782", "title": "", "text": "criteria for entitlement to benefits, we hold that the March 2000 amendment to 38 C.F.R. § 3.57(a)(1)(iii) was, as a matter of law, a substantive change in the law. Under section 553 of title 5, U.S.Code, substantive changes made by administrative agencies in regulations are required to comply with certain “notice and comment” requirements. 5 U.S.C. § 553(b), (c). These requirements include publication of a notice of proposed rulemaking in the Federal Register; an opportunity for interested persons to comment on that notice; and, after consideration of these comments, publication of the final rule with a general statement of its basis and purpose. Id. When the Secretary promulgated the amendment to 38 C.F.R. § 3.57(a)(1)(iii), he announced that that amendment “interpret[ed] statutory provisions and ma[de] non-substantive changes.” 65 Fed.Reg. at 12,116. If the changes were nonsubstan-tive, VA would be exempt from the notice- and-comment rulemaking procedure, under the exemption for interpretative rules. See 5 U.S.C. § 553(A) (except when notice or hearing is required by statute, section 553(b) does not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”). We note that, even if the Secretary’s characterization of the amendment as nonsubstantive were accurate, because the amendment was not subjected to notice-and-comment rulemaking procedures, it would be entitled to deference only in proportion to its “power to persuade,” and would not be given the substantial deference afforded to rules promulgated according to the notice-and-comment procedures. See United States v. Mead Corp., 533 U.S. 218, 231-36, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). In determining whether an agency rule is interpretive or substantive for purpose of the notice-and-comment requirements, the Court need not accept VA’s characterization of the action. See Hemp Indus. Ass’n v. Drug Enforcement Admin., 333 F.3d 1082, 1087 (9th Cir.2003) (court not constrained to accept agency’s characterization of action). Indeed, the interpretive-rule exception to the notice-and-comment rulemaking requirement is narrowly construed. See Reno-Sparks Indian Colony v. U.S. ERA, 336 F.3d 899, 909 (9th Cir.2003)." }, { "docid": "19195546", "title": "", "text": "the letter is procedurally defective because the government did not comply with sections 552(a)(1) and 553 before issuing the letter, and therefore it must be set aside. The government characterizes the Dear Manufacturer letter as an order, which is not referred to in 5 U.S.C. §§ 552(a)(1) or 553 and is therefore not reviewable under 38 U.S.C. § 502. In support of this characterization, the government points out that, in its opening brief, the Coalition frequently characterizes the Dear Manufacturer letter as an order. The government also argues that the Dear Manufacturer letter does not actually represent a decision to require refunds: In actuality, the Secretary decided in October of 2002 to require the refunds. The Dear Manufacturer letter merely implements that de-cisión or provides public notice of that decision. In the alternative, the government argues that even if the Dear Manufacturer letter is a rule rather than an order, it is an interpretative rule for which no notice and comment procedures are required. The letter is interpretative, the government urges, because it merely interprets the VHCA. The government argues that the fact that the letter is “binding” does not make it a substantive rule because interpretative rules are binding interpretations of federal statutes. Thus, the government asserts that the binding nature of a rule does not make it substantive. Even if the Dear Manufacturer letter is a substantive rule, the government contends, we lack jurisdiction under section 502 because the statute only gives the Federal Circuit the authority to review the VA’s actions and not DOD’s actions, which are at issue in the present case. According to the government, this is because DOD is seeking refunds under the Dear Manufacturer letter and, if notice and comment procedures were necessary, it would have been DOD’s responsibility to promulgate regulations in the Code of Federal Regulations. In the event that the case is not dismissed for lack of jurisdiction, the government defends the Dear Manufacturer letter as being substantively valid. Thus, the government defends the letter’s interpretation of the terms “procure,” “covered drug,” and “depot” in section 8126. III. We first" } ]

[ { "docid": "22556835", "title": "", "text": "unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under [an employee benefit plan]_” 29 U.S.C. § 1140 (1982). Section 510 was designed primarily to prevent “unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.” West v. Butler, 621 F.2d 240, 245 (6th Cir.1980). An essential element of plaintiffs proof under the statute is to show that an employer was at least in part motivated by the specific intent to engage in activity prohibited by § 510. Gavalik v. Continental Can Co., 812 F.2d 834, 851 (3d Cir.), cert. denied, — U.S. -, 108 S.Ct. 495, 98 L.Ed.2d 492 (1987); Titsch v. Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), aff'd mem., 742 F.2d 1441 (2d Cir.1983). On the other hand, “[n]o ERISA cause of action lies where the loss of pension benefits was a mere consequence of, but not a motivating factor behind, a termination of employment.” Titsch, 548 F.Supp. at 985; see Gavalik, 812 F.2d at 851 (“Proof of incidental loss of benefits as a result of termination will not constitute a violation of § 510.”); Corum v. Farm Credit Servs., 628 F.Supp. 707, 718 (D.Minn.1986) (plaintiff must show more than “lost opportunity to accrue additional benefits” to sustain a § 510 claim); Baker v. Kaiser Aluminum & Chem. Corp., 608 F.Supp. 1315, 1319 (N.D.Calif.1984) (“The only evidence offered by plaintiff is that if he had not been terminated, he would have been able to accrue additional benefits.”). ERISA does not guarantee every employee a job until he or she has fully vested into a company’s benefit plan. Plaintiff is required to prove more than the single fact that his termination precluded him from vesting into the 75/80 Plan; he must demonstrate Continental’s unlawful purpose in firing him. B. Burdens and Order of Proof Under McDonnell Douglas Because the existence of a specific intent to interfere with an employee’s benefit rights is" } ]

[ { "docid": "6676682", "title": "", "text": "this light, plaintiffs allegations constitute a claim not cognizable under ERISA or are not sufficiently alleged to put defendants on notice so that they can form a responsive pleading. Section 510 of ERISA provides: “It shall be unlawful for any person to discharge ... a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under [an employee benefit plan]....” 29 U.S.C. § 1140 (1982). Section 510 essentially prohibits employers from, inter alia, “discharging ... their employees in order to keep them from obtaining vested pension rights.” Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir.1988) (quoting West v. Butler, 621 F.2d 240, 245 (6th Cir.1980)). Plaintiff claims that her expulsion from the firm interfered with her rights under ERISA by preventing her from continuing to be enrolled in LLL & M’s pension benefit and health and medical plans. However, plaintiffs claim that had she remained as a partner, she would have accrued additional benefits is not cognizable under § 510. Kelly v. Chase Manhattan Bank, 717 F.Supp. 227, 232 (S.D.N.Y.1989); Titsch v. Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), aff'd mem., 742 F.2d 1441 (2d Cir.1983) (“No ERISA cause of action lies where the loss of pension benefits was a mere consequence of, but not a motivating factor behind, a termination of employment.”). See also Gavalik v. Continental Can Co., 812 F.2d 834, 851 (3d Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 495, 98 L.Ed.2d 492 (1987) (“Proof of incidental loss of benefits as a result of a termination will not constitute a violation of § 510.); Corum v. Farm Credit Svcs., 628 F.Supp. 707, 718 (D.Minn.1986) (“[PJlaintiff must show more than lost opportunity to accrue additional benefits,”); Baker v. Kaiser Aluminum & Chem. Corp., 608 F.Supp. 1315, 1319 (N.D.Cal.1984) (“The only evidence offered by plaintiff is that if he had not been terminated, he would have been able to accrue additional benefits.”). Apart from this deprivation, there are no facts alleged to allow the Court to find that plaintiff can prove any" }, { "docid": "22407615", "title": "", "text": "summary judgment dismissing Lightfoot’s claim under ERISA. Section 510 of ERISA provides that “[i]t shall be unlawful for any person to discharge ... a participant or beneficiary [of an employee benefit plan] ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... ” 29 U.S.C. § 1140. There is, however, no cause of action under section 510 where the loss of pension benefits “was a mere consequence of, but not a motivating factor behind, a termination of employment.” Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir.1988). To defeat summary judgment Lightfoot had to adduce some evidence from which a reasonable jury could conclude that Carbide terminated his employment with the intent to reduce his pension benefits. Although Lightfoot’s complaint alleged a “pattern or practice of age discrimination in employment intended to deprive older ... employees of opportunity to optimize the benefits available to them,” he has come forward with no specific facts to support this allegation. He argues on appeal that pre-termination discrimination against him “must” have resulted from Carbide’s desire to interfere with his pension benefits because it had that effect. This is a textbook illustration of the post hoc ergo propter hoc fallacy. See Dister, 859 F.2d at 1117 n. 1 (“[MJere cost savings and proximity to benefits are [insufficient ... to create a genuine issue of fact requiring a trial”); Humphreys v. Bellaire Corp., 966 F.2d 1037, 1044 (6th Cir.1992) (citing Dister). Where an employee’s ERISA claim is based only on a claim that the employee has been deprived of the opportunity to accrue additional benefits through more years of employment, “a prima facie case requires some additional evidence suggesting that pension interference might have been a motivating factor.” Turner v. Schering-Plough Corp., 901 F.2d 335, 348 (3d Cir.1990). Lightfoot has presented no such evidence, and summary judgment was appropriate. 3, Dismissal of pre-termination claims Lightfoot insists that he should have received a pay raise in 1988 when he was promoted to Business Director. Under the ADEA, a plaintiff in a “deferral" }, { "docid": "23552161", "title": "", "text": "to which he is entitled under the provisions of an employee benefit plan, ..., or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... 29 U.S.C. § 1140. The law in this area is well-settled. In Gavalik v. Continental Can Co., 812 F.2d 834 (3d Cir.1987), we outlined the elements of a § 510 claim. We explained that a plaintiff does not have to prove that the only reason that he or she was terminated was an intent to interfere with pension benefits. Id. at 851. However, a plaintiff must “demonstrate that the defendant had the ‘specific intent’ to violate ERISA.” Id. (quoting Watkinson v. Great Atl. & Pac. Tea Co., Inc., 585 F.Supp. 879, 883 (E.D.Pa.1984)). A plaintiff must show that “the employer made a conscious decision to interfere with the employee’s attainment of pension eligibility or additional benefits.” DiFederico v. Rolm Co., 201 F.3d 200, 205 (3d Cir.2000) (internal quotation marks and citation omitted). Proof that the plaintiff lost benefits because of termination alone is not enough. Gavalik, 812 F.2d at 851. Proof that the termination prevented the employee from accruing additional benefits through more years of service alone is not probative of intent. See Turner v. Schering-Plough Corp., 901 F.2d 335, 848 (3d Cir.1990). “Where this is the only deprivation, a pri-ma facie case requires some additional evidence suggesting that pension interference might have been the motivating factor. In this connection, we note that the savings to the employer resulting from the [employee’s] termination [must be] of sufficient size that they may be realistically viewed as a motivating factor.” Id. Such proof can be demonstrated through direct or circumstantial evidence, because the “smoking gun” evidence may be rare. Gavalik, 812 F.2d at 852. When there is no direct evidence, courts use a McDonnell Douglas-Burdine type of burden shifting scheme to determine whether the plaintiffs have proved their case. DiFederico, 201 F.3d at 205. Plaintiffs must first prove their prima facie case by showing “ ‘(1) the employer committed prohibited conduct (2) that was taken for" }, { "docid": "18153964", "title": "", "text": "the language of the Plan, not common law status, that controls.” Rolling v. Am. Power Conversion Corp., 347 F.3d 11, 14 (1st Cir.2003). Plaintiffs’ own complaint alleges, and the plan documents submitted by Defendants confirm, that GTE’s ERISA plans explicitly exclude from participation employees who were not “paid directly” by GTE, without regard for their common-law employment status. Plaintiffs further allege that they were in fact not “paid directly” by GTE, but by third-party payroll agencies. Because they “can prove no set of facts to support [their] claim” for benefits under the ERISA plans, Rockwell, 26 F.3d at 260, the district court properly dismissed Plaintiffs’ claim under ERISA § 502(a)(1)(B). B. Interference with Attainment of Plan Participation Rights Plaintiffs allege that Defendants misclassified them as off-payroll employees for the purpose of interfering with their attainment of plan, participation rights in violation of ERISA § 510, 29, U.S.C. § 1140. That statute provides, in relevant part: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled [under ERISA or an ERISA plan], or for the purpose of interfering with the attainment of any right to which such participant may become entitled. 29 U.S.C. § 1140. The district court held that Plaintiffs could not state a claim for relief under this provision for two independent reasons. “First, an employer may hire employees under terms that render them ineligible to receive benefits given to other employees without violating [ERISA] § 510.” Edes, 288 F.Supp.2d at 59. Plaintiffs argue that the district court’s analysis ignored the language in ERISA § 510 prohibiting employers from discriminating against a participant or beneficiary “for the purpose of interfering with the attainment of any right to which such participant may become entitled ” under an ERISA plan. 29 U.S.C. § 1140 (emphasis added). Plaintiffs argue that whether or not Defendants permissibly excluded them from plan eligibility at the time they were hired as off-payroll employees, Defendants failed to move them to the GTE payroll after they were hired, “for" }, { "docid": "16959702", "title": "", "text": "based on her age or with the specific intent of interfering with her ERISA benefits. With respect to her claim for employee benefits for the period that she served as a consultant, the district court found that Daughtrey worked as an independent contractor, not an employee, and thus was not entitled to any benefits. Similarly, because she was not an employee at the time of her discharge, she could not maintain a claim for age discrimination for her termination in 1988. Finally, because Daughtrey had produced no evidence that she was prejudiced by Honeywell’s failure to provide a timely statement of benefits, the district court granted summary judgment on her claim for penalties under section 1132(c). II. DISCUSSION A. ERISA Claims 1. 1986 Layoff The district court determined that undisputed evidence established that closure of the CPC and the associated layoffs were motivated by Honeywell’s desire to reduce operating expenses. The court held that Daughtrey failed to present evidence that she was terminated with the specific intent of interfering with her employee benefits and granted summary judgment in favor of Honeywell. Section 1140 of ERISA prohibits the discharge of a participant “for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.” 29 U.S.C. § 1140. As anticipated by the district court, under section 1140, “[a] plaintiff must show that the employer had the specific intent to interfere with the employee’s right to benefits.” Seaman v. Arvida Realty Sales, 985 F.2d 543, 546 (11th Cir.1993); see also Owens v. Storehouse, Inc., 984 F.2d 394, 399 (11th Cir.1993). “This standard does not require the plaintiff to show that interference with ERISA rights was the sole reason for discharge but does require plaintiff to show more than the incidental loss of benefits as a result of a discharge.” Seaman, 985 F.2d at 546. Daughtrey supported her allegation that Honeywell intended to interfere with her employee benefits with evidence that three of the four former CPC employees who were later employed by ISS had no vested pension rights. Even within this small sample," }, { "docid": "15360367", "title": "", "text": "remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989). A 12(b)(6) motion must be converted to a motion for summary judgment if “matters outside the pleading are presented to and not excluded by the court.” Fed.R.Civ.P. 12(b). In the present case, the Complaints, attached to Colgate’s motion to dismiss, are themselves pleadings, and the court has not considered matters outside the pleading, which would trigger conversion of the motion to a summary judgment motion. ERISA — Claim Splitting Myers alleges that Colgate violated § 510 of ERISA, which prohibits interference with protected rights under the statute. 29 U.S.C. § 1140. That statute provides: “It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan...” Specifically, plaintiff contends that she was “deprived of her retirement and pension benefits from defendant” as a result of her termination of employment from Colgate, (Dk. 21, Exh. 1, Count I, para. 11), and that her termination “was intentional and as part of defendant’s pattern and practice of firing employees in order to deprive them of their retirement benefits on the pretext of company restructuring.” (Id., para.18.) Colgate has filed a separate motion to dismiss Myers’ ERISA case, alleging that it constitutes improper claim-splitting, and is barred by the applicable statute of limitations. Myers contends that claim splitting only prevents a plaintiff who has failed in an earlier claim from filing a related claim, and has no application to a situation such as this in which different suits are currently pending before the court. Myers also contends that her ERISA claim arises out of a “totally different set' of facts” (Dk. 22, p. 4) yet the only such fact alleged is that" }, { "docid": "23505507", "title": "", "text": "Section 510 of ERISA provides in part that It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, ... or the Welfare and Pension Plans Disclosure Act, ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... 29 U.S.C. § 1140. To avoid summary judgment on a § 510 claim, an employee must show that the employer engaged in prohibited conduct for the purpose of interfering with the employee’s attainment of any right to which he may become entitled under an ERISA-protected plan. Shahid v. Ford Motor Co., 76 F.3d 1404, 1411 (6th Cir.1996); Humphreys v. Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir.1992). The plaintiff must demonstrate that the employer engaged in the prohibited conduct with the specific intent of violating ERISA. Humphreys, 966 F.2d at 1043. The District Court suggested that since plaintiff did in fact obtain extensive medical benefits under Weastec’s health benefits plan and was never denied reimbursement, a reasonable jury could not find that Weastec engaged in prohibited conduct with the specific intent of violating ERISA, However, the statute indicates only that the plaintiff must prove that the defendant engaged in conduct for the purpose of interfering with his rights, not that the employer’s conduct actually had the effect of interfering with his rights. Other courts have recognized that a plaintiffs receipt of ERISA-protected benefits does not preclude an ERISA claim under § 510. See, e.g., Kowalski v. L & F Prods., 82 F.3d 1283, 1287 (3d Cir.1996) (holding that an employee who claims to have been terminated by her employer for having exercised her right to disability benefits raised a cognizable claim under § 510 of ERISA notwithstanding the fact that she received the benefits from her employer prior to termination); Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 881 (9th Cir.1989) (suggesting that a plaintiff may establish a violation of § 510 of" }, { "docid": "17610416", "title": "", "text": "about the impact his health conditions had on their insurance premiums,” and that “[t]his, along with other record evidence, presents sufficient facts whereby the fact-finder could reasonably find that the cost of Coming’s health benefits was at least a factor, and potentially the deciding factor, in the decision to terminate him.” (Doc. 99 at 13-14.) Additionally, Corning asserts that the exhaustion requirement should be excused because resort to administrative remedies would have been futile. (Id. at 12-13.) Section 510 of ERISA provides, in pertinent part: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... 29 U.S.C. § 1140; see Krebs v. Aviation Constructors, Inc., 179 Fed.Appx. 627, 628 (11th Cir.2006) (“ERISA forbids termination of an employee for the purpose of depriving him of ERISA-covered benefits.”). To survive summary judgment, a plaintiff bringing a cause of action under § 510 must show that the employer had the specific intent to interfere with the plaintiffs right to benefits. Krebs, 179 Fed.Appx. at 628; Gitlitz v. Compagnie Nationale Air Fr., 129 F.3d 554, 558 (11th Cir.1997) (“The ultimate inquiry in a § 510 case is whether the employer had the specific intent to interfere with the employee’s ERISA rights.”) (internal quotation omitted); Reynolds v. Int’l Bus. Machs. Corp., 320 F.Supp.2d 1290, 1299 (M.D.Fla.2004). Although Corning is not required to prove that interference with ERISA rights was LodgeNet’s sole reason for his termination, he must show more than the incidental loss of benefits. See Gitlitz, 129 F.3d at 558; Reynolds, 320 F.Supp.2d at 1299; Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1492 (11th Cir.1993) (“Because the evidence offered by Daughtrey shows only the incidental loss of benefits as a result of discharge, the district court properly granted summary judgment[.]”) (internal quotation omitted). He can meet this burden either by showing direct proof of" }, { "docid": "16614498", "title": "", "text": "pension benefit plan within the meaning of ERISA). III. In Count V of his amended complaint, plaintiff alleged that Sentry violated 29 U.S.C. § 1140 by discriminatorily terminating him for the purpose of interfering with his attainment of rights under the “various employee welfare and benefit plans and pension benefit plans at issue here.” Appellant’s App., Vol. I, First Amended Complaint, at 14.' The statute provides in pertinent part as follows: § 1140. Interference with protected rights It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act, or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act. 29 U.S.C. § 1140. On appeal, plaintiff states that his “claim on Count V of his Complaint rests upon plaintiff’s interest in the Golden Careers Plan,” Appellant’s Br. at 27, and argues facts relating solely to that plan, see Appellant’s Reply Br. at 13. Because plaintiff does not argue that his § 1140 claim is based on his right to benefits under the SERP, plaintiff is deemed to have waived any § 1140 claim based on the SERP on appeal. See Dixon v. City of Lawton, 898 F.2d 1443, 1449 n. 7 (10th Cir.1990); Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir.1984). As we held in Part II, supra, the GCBP is not a plan covered by ERISA. Because ERISA does not protect plaintiff’s rights under the GCBP, that plan cannot support a § 1140 claim for interference with protected rights. Therefore, the district court properly entered summary judgment in favor of Sentry on plaintiff’s § 1140 claim. The judgment of the United States District Court for the District of Kansas is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral" }, { "docid": "23440057", "title": "", "text": "that prior to his resignation, Pebler suggested that he request some time off so that he could regain his confidence. Plaintiff, however, has presented no proof showing that Pebler knew that Plaintiff needed leave because he had a nervous disorder. We conclude that Plaintiff learned of his disorder after he resigned from DHL, and that he informed DHL about his condition after his resignation. Because an employee cannot bring a claim under the FMLA unless he notifies his employer of his condition and requests relief during his employment, we hold that the district court properly concluded that Plaintiff could not establish a claim under the FMLA. D. ERISA Claim Plaintiff argues that the district court erred in granting summary judgment to DHL on his ERISA claim because DHL encouraged him to resign or accepted his resignation in order to prevent him from claiming ADA and FMLA benefits. See e.g., Hinton v. Pacific Enterprises, 5 F.3d 391, 392 (9th Cir.1993). ERISA provides that it “shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.” 29 U.S.C. § 1140 (1974). ERISA defines the term “participant” as “any employee or former employee of an employer, ... who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees-” 29 U.S.C. § 1002(7) (1983). The statute grants “participants” a private cause of action. See 29 U.S.C. § 1132(a)(1)(B) (1980). We note that the “‘administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies prior to commencing a suit in federal court.’” Baxter v. C.A. Muer Corp., 941 F.2d 451, 453 (6th Cir.1991) (citing Makar v. Health Care Corp. of Mid-Atlantic, 872 F.2d 80 (4th Cir.1989)). To make a prima facie case under ERISA, a plaintiff must show that (1) his employer engaged" }, { "docid": "9935428", "title": "", "text": "about causation for DPH’s actions as well as the adequacy of Hickman’s notice of her desire for FMLA leave, overlap with the issue of whether DPH’s explanation for Hickman’s employment termination (or voluntary resignation) is pretext for an actual retaliatory purpose. The Court concludes that questions of fact exist and summary judgment on Plaintiffs FMLA retaliation claim is denied. C. ERISA Claims Hickman contends that DPH violated the Employee Retirement Income Security Act of 1974 (“ERISA”), 20 U.S.C. § 1001 et seq., when it allegedly terminated her in retaliation for exercising her right to health benefits and interfered with her entitlement to future benefits. Hickman claims the protection of 29 U.S.C. § 1140, which makes it “unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan .... ” See Heimann v. National Elevator Industry Pension Fund, 187 F.3d 493, 503 (5th Cir.1999). Section 1140 consists two components: (1) an anti-retaliation component, which prohibits an employer from retaliating against an employee for exercising ERISA rights; and (2) an anti-interference component, which prohibits an employer from interfering with an employee’s future rights to benefits. Kirby v. SBC Servs., Inc., 391 F.Supp.2d 445, 455 (N.D.Tex.2005). 1. Retaliation To establish a prima facie claim of retaliation under § 1140, Hickman must establish that DPH fired her in retaliation for exercising an ERISA right or to prevent attainment of benefits to which she would have become entitled under an employee benefit plan. Holtzclaw, 255 F.3d at 260 (citing Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 761 (5th Cir.1996)). Specific discriminatory intent is an essential element of Hickman’s claim. Rogers, 87 F.3d at 761; see also Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62 (1st Cir.2008) (“[WJithout a specific intent requirement, every terminated employee who has exercised his or her right to benefits would, ipso facto, have" }, { "docid": "5094252", "title": "", "text": "consider an employee’s version of events before deciding to terminate that employee, King refused to consider Kowalski’s responses to the investigator’s conclusions. In particular, Kowalski had informed King that she owned a cleaning service, but did not engage in providing cleaning services herself during the period of her disability. Nevertheless, King did not allow Kowalski the opportunity to provide any evidence to support her claim. Kowalski filed this lawsuit alleging that her discharge violated § 510 of ERISA. The district court granted L & F’s motion for summary judgment on the grounds that (1) Kowalski failed to show that L & F’s legitimate nondiscriminatory reason for termination was pretextual; and (2) Kowalski failed to offer any evidence of L & F’s intention to retaliate against her for exercising her right to medical leave benefits. II. As a threshold matter, we must determine whether Kowalski, as a plaintiff suing under § 510 of ERISA, has a cognizable cause of action notwithstanding the fact that she received her ERISA-protected benefits from her employer prior to termination. Our review of this issue of law is plenary. Gavalik v. Continental Can Co., 812 F.2d 834, 850 (3d Cir.1987). Section 510 of ERISA provides that: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. 29 U.S.C. § 1140. Thus, the plain language of § 510 provides a cause of action for employees who have been discharged “for exercising any right” to which employees are entitled to under an ERISA-protected benefit plan. But section 510 also goes further, protecting employees from interference with the “attainment of any right to which [the employees] may become entitled.” We have recognized that Congress enacted § 510 primarily to prevent employers from discharging or harassing their employees in order to keep them from obtaining ERISA-protected benefits. Gava-lik, 812 F.2d" }, { "docid": "9985926", "title": "", "text": "for summary judgment against Reliance. See supra § 1(B). Any further equitable relief would be inappropriate. See Varity, 516 U.S. at 515, 116 S.Ct. 1065; see also Zalduondo, 845 F.Supp.2d at 154-55 (denying the plaintiffs motion to amend her complaint to assert a claim for breach of fiduciary duty against the ERISA plan administrator under section 1132(a)(3) as futile because she had an adequate legal remedy against the insurer under section 1132(a)(1)(B)). C. Count III: Interference with the attainment of rights The second amended complaint seeks to add a claim against PCAOB for interference with the attainment of rights in violation of 29 U.S.C. § 1140. 2d 2d Am. Compl. ¶¶ 81-86. Section 1140 of ERISA provides: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. 29 U.S.C. § 1140. The elements of a cause of action under section 1140 are: “(1) prohibited employer conduct; (2) taken for the purpose of interfering (3) with the attainment of any right to which the employee may become entitled.” May v. Shuttle, Inc., 129 F.3d 165, 169 (D.C.Cir.1997), citing Berger v. Edgewater Steel Co., 911 F.2d 911, 922 (3d Cir.1990). Boster contends that in violation of section 1140, “PCAOB discriminated against the Plaintiff in directing a ‘new process’ aimed specifically and solely at Plaintiff, and intentionally interfered with Plaintiffs attainment of rights under the terms of the Plan.” 2d Am. Compl. ¶ 65; see also id. ¶ 83 (“PCAOB discriminated against Plaintiff for the purpose of interfering with Plaintiffs rights to his STD benefits.”). In the November 1, 2010 email, PCAOB discussed a “new process” for short term disability benefits: “has anyone discussed our new process for STD? We spoke with Joe and Joyce a couple of weeks ago about something that was changed in how we administer the plan for employees" }, { "docid": "22407614", "title": "", "text": "effect of an employee’s termination on any claims he might later assert. Because contract terms are construed against the drafter, see Monica Textile Corp. v. S.S. Tana, 952 F.2d 636, 643 (2d Cir.1991), he argues, silence in the Agreements should not be interpreted as a waiver of his “post-employment claim of damages for unjust enrichment arising from ... wrongful termination as a result of age discrimination.” Appellant’s Brief at 44. This argument conflates ambiguity and omission. The plain language of the Agreements is clear: Lightfoot agreed to an unconditional assignment of any and all inventions created by him while working for Carbide. The unconditional assignment is not rendered ambiguous by the parties’ failure to anticipate specifically how Lightfoot’s employment might end. Thus, while Carbide may indeed have been enriched by Lightfoot’s efforts, we cannot say that such enrichment was unjust. There is no genuine issue of material fact on the issue of unjust enrichment, and the court’s grant of summary judgment on this issue was appropriate. 2. Claims under ERISA The district court also granted summary judgment dismissing Lightfoot’s claim under ERISA. Section 510 of ERISA provides that “[i]t shall be unlawful for any person to discharge ... a participant or beneficiary [of an employee benefit plan] ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... ” 29 U.S.C. § 1140. There is, however, no cause of action under section 510 where the loss of pension benefits “was a mere consequence of, but not a motivating factor behind, a termination of employment.” Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir.1988). To defeat summary judgment Lightfoot had to adduce some evidence from which a reasonable jury could conclude that Carbide terminated his employment with the intent to reduce his pension benefits. Although Lightfoot’s complaint alleged a “pattern or practice of age discrimination in employment intended to deprive older ... employees of opportunity to optimize the benefits available to them,” he has come forward with no specific facts to support this allegation. He argues on appeal" }, { "docid": "11749866", "title": "", "text": "employer’s “sole purpose” was to interfere with pension benefits to prevail on an ERISA § 510 claim, provided he or she shows that it was at least a “motivating factor”). However, a plaintiff does not state a claim under ERISA § 510 merely by showing that a loss of pension benefits was a consequence of his or her dismissal. Dister, 859 F.2d at 1111. “ERISA does not guarantee every employee a job until he or she has fully vested into a company’s benefit plan.” Id. Burke has failed to come forward with any evidence to suggest that Royal terminated his employment to prevent him from accruing additional pension benefits. Further, there is no evidence that Burke was close to the point of vesting. See Humphreys, 966 F.2d at 1044 (holding that termination of plaintiff two months prior to vesting gave rise to inference that discharge was motivated by a desire to interfere with pension benefits). Rather, Burke speculates, without any specific evi-dentiary support, that Royal terminated his employment to avoid incurring the health care costs associated with his diabetes, and to prevent him from accruing any additional retirement benefits. The only basis for Burke’s claim appears to be his assertion that he was fired after his diabetic condition became aggravated, and before his retirement benefits had fully accrued. The Second Circuit recently discussed the fallacy in an argument similar to the one that Burke makes here: Although Lightfoot’s complaint alleged a ‘pattern or practice of age discrimination in employment intended to deprive older ... employees of opportunity to optimize the benefits available to them,’ he has come forward with no specific facts to support this allegation. He argues on appeal that pre-termination discrimination against him ‘must’ have resulted from Carbide’s desire to interfere with his pension benefits because it had that effect. This is a textbook illustration of the post hoc ergo propter hoc fallacy. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir.1997). For these reasons, I respectfully recommend that plaintiffs motion to amend his complaint to add a claim for discrimination under ERISA § 510 be" }, { "docid": "3778939", "title": "", "text": "ERISA fiduciary duty claim and remand. E. ERISA § 510—Interference with Protected Rights Dytrt next contends that the Committee’s denial of her request to revoke her acceptance, forcing her early retirement, interfered with her protected ERISA rights, violating § 510 of ERISA, because her present monthly pension benefits are smaller than they would be if she had retired at a later date. Mountain Bell maintains that the Committee’s denial did not interfere with her protected ERISA rights under § 510. ERISA § 510 provides: It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... ERISA, § 510, 29 U.S.C. § 1140 Section 510 prevents an employer from arbitrarily discharging an employee whose pension rights are about to vest. Lojek v. Thomas, 716 F.2d 675, 680 (9th Cir.1983). A claimant must show that employment was terminated because of a specific intent to interfere with ERISA rights in order to prevail under § 510; no action lies where the alleged loss of rights is a mere consequence, as opposed to a motivating factor behind the termination. Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 881 (9th Cir.1989), cert. denied, — U.S. —, 111 S.Ct. 53, 112 L.Ed.2d 28; Johnson v. United Airlines, Inc., 680 F.Supp. 1425, 1433 (D.Haw.1987); Baker v. Kaiser Aluminum and Chem. Corp., 608 F.Supp. 1315, 1318-19 (N.D.Cal.1984). This court must be particularly cautious when reviewing a district court’s decision to grant summary judgment where issues of intent or motivation are involved. Haydon v. Rand Corp., 605 F.2d 453, 455 n. 2 (9th Cir.1979); Baker, 608 F.Supp. at 1319. However, “a party against whom summary judgment is sought is not entitled to a trial simply because he has asserted a cause of action to which state of mind is a material element. There must be some indication that he can" }, { "docid": "1641113", "title": "", "text": "motion for summary judgment. C. Plaintiffs ERISA Claim Plaintiff also challenges the district court’s grant of summary judgment regarding his claim that UPS violated ERISA § 510, 29 U.S.C. § 1140, by allegedly terminating him to avoid paying long term disability (LTD) benefits. ERISA § 510 makes it unlawful for an employer to: discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... 29 U.S.C. § 1140. In Smith v. Ameritech, 129 F.3d 857 (6th Cir.1997), this Circuit laid out the framework under which an ERISA § 510 claim should be analyzed, providing: To state a claim under § 510, the plaintiff must show that an employer had a specific intent to violate ERISA. In the absence of direct evidence of such discriminatory intent, the plaintiff can state a prima facie case by showing the existence of (1) prohibited employer conduct (2) taken for the purpose of interfering (3) with the attainment of any right to which the employee may become entitled. Id. at 865 (internal citations and quotations omitted). Further, the Smith v. Ameri-tech Court found that in making its prima facie case, a plaintiff must show a causal link between pension benefits and the adverse employment decision. Id. This means that for plaintiffs case, “to survive a defendant’s motion for summary judgment, plaintiff must come forward with evidence from which a reasonable jury could find that the defendant’s desire to avoid pension liability was a determining factor in plaintiffs discharge.” Id. In the case at bar, the district court held that plaintiff failed to establish a prima facie case. In arriving at this conclusion, the district court emphasized the fact that, regardless of what UPS officials may have thought, termination was not a bar to the plaintiff applying for and receiving LTD benefits. Further, the court observed that there was no evidence that plaintiff had ever" }, { "docid": "1641112", "title": "", "text": "against individuals with disabilities so that they could become productive members of the workforce. See 42 U.S.C. § 12101; 29 C.F.R. pt.1630 (1996). However, when the requested accommodation has no reasonable prospect of allowing the individual to work in the identifiable future, it is objectively not an accommodation that the employer should be required to provide. See cases cited in supra note 4. We therefore hold that when, as here, an employer has already provided a substantial leave, an additional leave period of a significant duration, with no clear prospects for recovery, is an objectively unreasonable accommodation. Cf. Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir.1996) (holding that where plaintiff has failed to present any evidence of the expected duration of her impairment as of the date of her termination, a request for medical leave was unreasonable). Because continued leave was an unreasonable accommodation, we find that the plaintiffs ADA claim and his claim under Kentucky’s equivalent provision, Ky.Rev. Stat. Ann. § 344.040, were properly dismissed by the district court on defendant’s motion for summary judgment. C. Plaintiffs ERISA Claim Plaintiff also challenges the district court’s grant of summary judgment regarding his claim that UPS violated ERISA § 510, 29 U.S.C. § 1140, by allegedly terminating him to avoid paying long term disability (LTD) benefits. ERISA § 510 makes it unlawful for an employer to: discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.... 29 U.S.C. § 1140. In Smith v. Ameritech, 129 F.3d 857 (6th Cir.1997), this Circuit laid out the framework under which an ERISA § 510 claim should be analyzed, providing: To state a claim under § 510, the plaintiff must show that an employer had a specific intent to violate ERISA. In the absence of direct evidence of such discriminatory intent, the plaintiff can state a prima facie case by" }, { "docid": "22473731", "title": "", "text": "termination by Pan American Life and National Insurance of the policy, entitling Marc to continued individual coverage under COBRA, 29 U.S.C. § 1161, et seq. Pan American Life and National Insurance contend that Custer cannot bring an action against them under 29 U.S.C. § 1140 because neither of them is her employer, and § 1140, they argue, imposes liability only on an employer. Even if an action under § 1140 is available, they maintain, Custer’s claims amount to nothing more than a claim for benefits. Since Custer has been paid all of the benefits to which she and her son are entitled under the plan, they contend that ERISA imposes no further obligation, including no continuing obligation to provide benefits after Custer’s employer terminated their policy. We address first whether the scope of 29 U.S.C. § 1140 includes claims against persons other than the employer. Section 510 of ERISA provides: It' shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled to under the plan.... 29 U.S.C. § 1140. This section, enforced through § 1132(a)(3), provides a companion to § 1132(a)(1), which provides actions to recover benefits or clarify rights. Together, these provisions protect “rights about to be earned but frustrated due to unlawful employer action, benefits earned but not paid, other rights due a participant but not fulfilled, and future benefits earned but not yet due.” Conkwright v. Westinghouse Electric Corp., 933 F.2d 231, 237 (4th Cir.1991). The defendant in Conkwright was the employer, and, indeed, the primary purpose behind § 1140 is to prevent an employer from taking action against an employee. See id. As written, however, 29 U.S.C. § 1140 states that the proscribed actions are unlawful “for any person.” (Emphasis added). Since both terms, “employer” and “person,” are defined by ERISA, see 29 U.S.C. § 1002(5) and (9), we must" }, { "docid": "19842414", "title": "", "text": "Court holds that before a preexisting conditions exclusion creates a right to continuation coverage, it must exclude or limit coverage for the types of condition or treatment for which the employee requires coverage. 4. Summary Plaintiffs have failed to establish that they are entitled to continuation coverage under the COBRA amendments to ERISA. Accordingly, Defendants’ motion for summary judgment on Counts III and IV must be granted. D. Promissory Estoppel Plaintiffs have stipulated to dismissal of their state promissory estoppel claim on grounds of federal preemption. Accordingly, Defendants’ motion for summary judgment on Count V will be granted. E. Intentional Interference with ERISA Benefits Plaintiffs allege that Defendants’ decision to reduce Schlett to part-time status was motivated by a desire to interfere with her ERISA benefits. It is unlawful to discharge or discriminate against an employee for the purpose of interfering with the attainment of any right to which she may become entitled under an ERISA plan. 29 U.S.C. § 1140. A plaintiff states a cognizable claim for intentional interference with ERISA benefits when she alleges that her employer discharged her for the purpose of depriving her of continued participation in her employer’s company-provided health plan. Fitzgerald v. Codex Corp., 882 F.2d 586, 588-89 (1st Cir.1989); Kross v. Western Elec. Co., Inc., 701 F.2d 1238, 1243 (7th Cir.1983). In order to prevail on such a claim, she must show that her employer had a specific intent to violate ERISA. She need not show that the employer’s sole purpose in discharging her was to interfere with her health benefits, but must show that denial of benefits was a motivating factor in the decision. See Humphreys v. Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir.1992). To evaluate whether an employer has intentionally interfered with an employee’s ERISA benefits, the Court uses an approach similar to that which the Court uses in evaluating discrimination claims. The employee can meet her burden of establishing a prima facie case by presenting either direct or circumstantial evidence of intentional interference with her ERISA rights. To establish her prima facie case by circumstantial evidence, she must show" } ]

[ { "docid": "22727281", "title": "", "text": "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989); see also Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992); McCarthy v. Bronson, 500 U. S. 136, 139 (1991). In this case, consideration of those factors leads us to conclude that the term “employees,” as used in § 704(a), is ambiguous as to whether it excludes former employees. At first blush, the term “employees” in § 704(a) would seem to refer to those having an existing employment relationship with the employer in question. Cf. Walters v. Metropolitan Ed. Enterprises, Inc., ante, at 207-208 (interpreting the term “employees” in § 701(b), 42 U. S. C. § 2000e(b)). This initial impression, however, does not withstand scrutiny in the context of § 704(a). First, there is no temporal qualifier in the statute such as would make plain that § 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase “former employees” does not aid our inquiry. Congress also could have used the phrase “current employees.” But nowhere in Title VII is either phrase used — even where the specific context otherwise makes clear an intent to cover current or former employees. Similarly, that other statutes have been more specific in their coverage of “employees” and “former employees,” see, e. g., 2 U. S. C. § 1301(4) (1994 Supp. I) (defining “employee” to include “former employee”); 5 U. S. C. § 1212(a)(1) (including “employees, former employees, and applicants for employment” in the operative provision), proves only that Congress can use the" } ]

[ { "docid": "23349647", "title": "", "text": "975 F.2d 1412, 1419 (9th Cir.1992). The D.C. and Sixth Circuits have taken a third approach that stakes out a middle ground, holding that “an ‘original source’ must provide the government with the information prior to any public disclosure,” but not requiring the relator to be the cause of the public disclosure. United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 690 (D.C.Cir.1997); see also United States ex rel. McKenzie v. BellSouth Telecomms., Inc., 123 F.3d 935, 942-43 (6th Cir.1997). OBP and the United States urge us to take this middle approach. Although we are about to travel a well-trodden path, our first step remains the same. “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. By its terms, the “original source” exception only requires the relator to “provide[ ] the information to the Government before filing an action under this section which is based on the information.” 31 U.S.C. § 3730(e)(4)(B). Section 3730(e)(4)(B) does not impose any other timing requirement. Nor does § 3730(e)(4)(A). Thus, like the Fourth Circuit and the district court below, we conclude that the plain terms of § 3730(e)(4)(B) begin and end the matter. See Robinson, 519 U.S. at 340, 117 S.Ct. 843 (“Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989))). The government argues that the language of § 3730(e)(4)(B), when read in context, supports its view. Following the D.C. Circuit, the government points to the meaning of the terms “original source” itself, contending that" }, { "docid": "5282297", "title": "", "text": "the district court’s interpretation of the word “disposal,” as used in 42 U.S.C. § 6903(3) and (33), was correct, and thus that the district court properly stated the law. “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. “Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and’ consistent.’ ” Id. at 340, 117 S.Ct. 843 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Here, the meaning of “disposal” under RCRA has a plain and unambiguous meaning. The statute defines disposal as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 6903(3) (emphasis added). Disposal under the statute thus unambiguously refers to the act of discharging, depositing, injecting, dumping, leaking or placing. Humphries’ suggested interpretation, under which disposal refers to the decision to undertake one of these actions, finds no support in the language of the statute. Humphries’ suggested definition would also blur the statutory distinction between storage and disposal. As noted earlier, under RCRA the “term ‘storage’, when used in connection with hazardous waste, means the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste.” 42 U.S.C. § 6903(33) (emphasis added). Under Humphries’ interpretation, one could retain hazardous" }, { "docid": "15224988", "title": "", "text": "dispute on 47 U.S.C. § 252(e)(6), which provides: “In any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 of this title and this section.” The court explicitly held that the disputed GPSC orders were state commission “determinations” made pursuant to section 252 of the 1996 Act. In doing so, however, the district court had to draw two other conclusions, neither of which it mentioned in its dispositive order: first, that the GPSC had the authority to adjudicate the dispute between BellSouth and the CLEC defendants, and second, that this authority derived from section 252 of the 1996 Act. As the following discussion indicates, we disagree with not only the latter, but also the former, of these premises. Instead, we find that the GPSC had no jurisdiction to issue the orders in this case under the federal and state statutory bases it cited in its orders. A. To determine whether the GPSC’s orders constitute “determinations” under section 252 of the 1996 Act, we first look for plain meaning in the pertinent language of that statute. “Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enters., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). As best we can tell, the GPSC rooted its authority under the 1996 Act in 47 U.S.C. § 252(e)(1), which provides: Any interconnection agreement adopted by negotiation or arbitration shall be submitted for approval to the State commission. A State commission to which an agreement is submitted shall approve or reject the agreement, with written findings as to any deficiencies. The plain meaning of this statutory subsection, however, grants state commissions, like the GPSC, the power to approve or reject interconnection agreements, not to interpret or enforce them. It" }, { "docid": "22257157", "title": "", "text": "is broad enough, and has been so construed, as to cover the case before us. The question, then, is whether the express provisions of the HMT statute preclude application of § 2411 to refunds of the tax. As previously noted, the HMT statute in subsection (f) of § 4462 directs that “the [HMT] shall not be treated as a tax for purposes of subtitle F or any other provision of law relating to the administration and enforcement of internal revenue tax-es26 U.S.C. § 4462(f)(3) (emphasis added). If the refund process for the unconstitutionally-levied HMT is not related to the “administration and enforcement” of an internal revenue tax, then § 2411 of Title 28 would appear to be ample authorization for interest to be paid on the refund. If, however, the refund process for this internal revenue tax relates to its administration and enforcement, the plain language of the HMT statute would bar the use of § 2411 as a statutory basis for an award of interest on HMT refunds. This is a question of statutory interpretation. We begin with the language of the statute itself. If that language is clear and unambiguous, then it controls, and we need not — indeed we may not — go further. See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989))); Muwwakkil v. Office of Personnel Management, 18 F.3d 921, 924 (Fed. Cir.1994) (“When statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails.”). To determine whether the statutory language is plain and unambiguous, we look at “the language itself, the specific context in which that language is used, and the broader context of the" }, { "docid": "6619297", "title": "", "text": "action as in other proceedings.... (2)(A) If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered. 28 U.S.C. § 1915 (West 1999). B. Interpreting the Act: The central, indeed sole, issue in this appeal is the scope of § 523(a)(17); specifically, whether this exception to discharge applies to an award of attorney fees in a civil action under state law against a non-prisoner debtor, when those fees were not assessed pursuant to 28 U.S.C. § 1915(b) or (f). The “first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The reviewing court’s “inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Id. (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). whether a statute is ambiguous is “determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843 (citations omitted). The bankruptcy court, looking for “plain meaning,” found § 523(a)(17) unambiguous, and held that the statute “applies, on its face, to any debts imposed by a court for filing fees, or for other expenses associated with respect to a case.” Hough, 228 B.R. at 266. As a result, “attorneys fees and costs assessed by a court against a nonprisoner litigant, who later seeks bankruptcy relief, are clearly excepted from bankruptcy discharge.” Id. While hinting at legislative malpractice, in that Congress may have used language too broad to accomplish its purpose of deterring frivolous lawsuits by prisoners, the bankruptcy court refrained from judicial amendment of what it found to be a “clearly worded statute[,]” id., rejecting the conclusion reached in the only other reported deci sions dealing with" }, { "docid": "1353184", "title": "", "text": "chapter. 11 U.S.C.A. § 1307(b) (West 1993). [0]n request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title ... for cause[.] 11 U.S.C.A. § 1307(c) (West 1993). When confronted with competing motions in a Chapter 13 case that has not previously been converted, “shall” courts dismiss the ease at the debtor’s request under the authority of § 1307(b) or “may” they, notwithstanding the debtor’s request, convert the case to Chapter 7 under the authority of § 1307(c)? Courts are divided over the issue. In re Casteel, 207 B.R. 185, 186-87 (Bankr.E.D.Ark.1997) (collecting cases); In re Greenberg, 200 B.R. 763, 767 (Bankr.S.D.N.Y.1996) (collecting cases); In re Harper-Elder, 184 B.R. 403, 404 (Bankr.D.D.C.1995) (collecting cases). II When construing the provisions of a statute, it is the duty of the judiciary to effectuate the will of Congress. Negonsott v. Samuels, 507 U.S. 99, 103-04, 113 S.Ct. 1119, 1122, 122 L.Ed.2d 457 (1993). This process begins with the language of the statute. Bailey v. United States, — U.S.-,-, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240-42, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)); United States v. Alvarez-Sanchez, 511 U.S. 350, 356-57, 114 S.Ct. 1599, 1603, 128 L.Ed.2d 319 (1994) (citing Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 252-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)). Courts must first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., — U.S. -, -, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). In the absence of express legislative history to the contrary, further inquiry is prohibited “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Id. (quoting Ron Pair Enters., Inc., 489 U.S. at 240, 109 S.Ct. at 1030); accord Reves v. Ernst & Young, 507 U.S. 170, 176-78, 113 S.Ct. 1163, 1169, 122 L.Ed.2d" }, { "docid": "17079697", "title": "", "text": "separate concurrence because on the facts of this case I would go one step further and hold that a creditor’s motivation is not dispositive or even relevant in deciding whether to grant a § 503(b) claim. When interpreting a statute, “[o]ur first step ... is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). This court’s inquiry must end if the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). If the text of the statute includes undefined terms — as is the situation here where Congress failed to fully define “substantial contribution” — we construe those terms to have their ordinary meanings. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). When the plain language of the statute can be interpreted in more than one way, the court must determine the more plausible interpretation of the language Congress chose. United States v. Hohri, 482 U.S. 64, 70, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). As noted in the opinion, § 503(b)(3) provides that “[a]fter notice and a hearing, there shall be allowed administrative expenses including the actual, necessary expenses ... incurred by ... a creditor ... in making a substantial contribution in a case under Chapter 9 or 11 of this title.” Nothing in § 503(b) indicates that a creditor’s motivation has any relevance in whether the creditor can recover fees and expenses under § 503(b). Hall Fin. Group v. DP Partners Ltd. P’ship (In re DP Partners Ltd. P’ship), 106 F.3d 667, 673 (5th Cir.1997) (noting that “nothing in the Bankruptcy Code requires a self-deprecating, altruistic intent as a prerequisite to recovery of fees and expenses under section 503.”). Moreover, the legislative record gives no indication that a creditor’s motivation must be taken into consideration when determining if a “substantial" }, { "docid": "15211288", "title": "", "text": "concluded that “[i]f Congress believes that the regularly staggered terms should be among these protections, then, of course, it is free to make its intention explicit by including express language in the statute.” The United States and Kirsanow filed this appeal. II. Analysis This case involves a pure legal question of statutory interpretation. Our review of statutory interpretation by a district court is de novo. See, e.g., Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999). A. We begin our analysis with the language of the statute. See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)). In determining the “plainness or ambiguity of statutory language” we refer to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. at 846 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 2595, 120 L.Ed.2d 379 (1992); McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991)). The disputed provision, 42 U.S.C. § 1975(c) provides: “The term of office of each member of the Commission shall be 6 years. The term of each member of the Commission in the initial membership of the Commission shall expire on the date such term would have expired as of September 30, 1994.” Appellants contend, contrary to the district court’s holding, that the language of the first sentence of § 1975(c) is ambiguous, as the expression “term of office” is subject to at least" }, { "docid": "11323404", "title": "", "text": "the request for reevaluation was not unreasonable and it did not deny Jervon a free appropriate public education. II. INTERPRETATION OF REEVALUATION PROVISION § 1414(a)(2) Plaintiff challenges the hearing officer’s interpretation of § 1414(a)(2) finding that a reevaluation is necessary only if “conditions warrant” one. (PL’s Compl. at 5, ¶ 15-16.) The hearing officer stated that a school “is not obligated to complete new evaluations upon request” without “some showing that ‘conditions warrant’ a new evaluation,” a statement that plaintiff contests. (Pl.’s Compl. at 5, ¶¶ 15-16.) A court must defer to an agency’s interpretation of a regulation or statute “if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation [or statute].” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). Of course, a regulation and its interpretation are irrelevant if Congress “has directly spoken to the precise question at issue” in the organic statute. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As this Circuit has stated, “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). In determining the “plainness or ambiguity of statutory language” we refer to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843 (citing Estate" }, { "docid": "13264615", "title": "", "text": "whether an eBook of the Translation constitutes a new “derivative work” under the Copyright Act. Section 101 of the Copyright Act defines a “derivative work” as: a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 U.S.C. § 101. The task of statutory interpretation begins “with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). “The first step ‘is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.’ ” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (citing Ron Pair Enters., Inc., 489 U.S. at 240, 109 S.Ct. 1026)). “[The] inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Robinson, 519 U.S. at 340, 117 S.Ct. 843 (internal quotations omitted). Here, the statutory definition of “derivative work” consists of two sentences. The first sentence tells us that a “derivative work” is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed or adapted.” 17 U.S.C. § 101. Accordingly, a “derivative work” is a work based on a preexisting work and that is in one of the listed forms — such as a translation — or in another form in which the pre-existing work is similarly “recast, transformed, or adapted.” A common feature among the forms of works listed in the statutory definition is that each" }, { "docid": "23118642", "title": "", "text": "the majority properly rejected the “ultimate employment action” doctrine this court embraced in Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545-46 (6th Cir.1999), I would be remiss if I failed to point out that such an express rejection of the “ultimate employment action” doctrine effectively overrules Dobbs-Wein-stein. I write separately, however, be cause I disagree with the rule the majority today embraces with respect to what constitutes an adverse employment action within the meaning of Title YII’s anti-retaliation provision, 42 U.S.C.2000e-3(a). Instead, I believe that the appropriate standard is the one articulated in the Ninth Circuit and advocated by the EEOC; i.e., an employer’s retaliatory action is sufficiently adverse for § 704(a) purposes if it would be “reasonably likely to deter [employees] from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir.2000). The “reasonably likely to deter” standard is more consistent with § 704(a)’s statutory language and congressional intent, as well as Supreme Court case law. A. Why the “Reasonably Likely to Deter” Rule is the Appropriate Standard for a Retaliation Case 1. Statutory and Case Law Support The Supreme Court has repeatedly instructed courts, as a first step in interpreting a statute, “to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808, (1997). The inquiry is at an end “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Id. (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). It is readily apparent from a reading of § 704(a) that Congress placed no limitations on the reach of the anti-retaliation provision. Section 704(a) states that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... under this subchapter.” 42 U.S.C. § 2000e-3(a)." }, { "docid": "5690196", "title": "", "text": "S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). If the language of the statute is unambiguous and there is no clear Congressional intent to the contrary, the language is conclusive. In re JKJ Chevrolet, 26 F.3d at 483. Our inquiry must cease if the statutory language is unambiguous and “ ‘the statutory scheme is coherent and consistent.’ ” United States v. Murphy, 35 F.3d 143, 145 (4th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 954, 130 L.Ed.2d 897 (1995) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)). In other words, if the statutory language “ ‘is plain and admits no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.’” Id. There are, however, rare and narrow circumstances permitting courts to look beyond the plain meaning of unambiguous statutes. Id. One such circumstance arises if literal application of the statutory language would produce a result demonstrably at odds with the intent of Congress; in such cases, the intent of Congress rather than the strict language controls. See Ron Pair Enters., Inc., 489 U.S. at 242, 109 S.Ct. at 1031 (“The plain meaning of legislation should be conclusive, except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of the drafters, rather than the strict language controls.”). In such cases, we examine the statute according to conventional rules of statutory construction: we must construe the statute in the context of the entire statutory scheme and avoid rendering statutory provisions ambiguous, extraneous, or redundant; we favor the more reasonable result; and we avoid construing statutes contrary to the clear intent of the statutory scheme. See, e.g., Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473 (4th Cir.1996); Trustees of Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Leaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir.1996). Mindful of these conventional rules of statutory construction, we turn to the statute at hand." }, { "docid": "22142914", "title": "", "text": "the grounds that it •... fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). In interpreting this provision, we must first determine whether its language “has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. “Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Id. at 340, 117 S.Ct. 843 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Our task here is to determine whether Congress intended an action or appeal “that was dismissed on the grounds that it ... fails to state a claim upon which relief may be granted” to count as a strike under 28 U.S.C. § 1915(g) if that dismissal was specifically designated to be “without prejudice.” The language “fails to state a claim upon which relief may be granted” in § 1915(g) closely tracks the language of Federal Rule of Civil Procedure 12(b)(6). Compare Fed.R.Civ.P. 12(b)(6) (listing “failure to state a claim upon which relief can be granted” as grounds for dismissal). When Congress directly incorporates language with an established legal meaning into a statute, we may infer that Congress intended the language to take on its established meaning. United States v. Langley, 62 F.3d 602, 605 (4th Cir.1995) (“It is firmly entrenched that Congress is presumed to enact legislation with knowledge of the law; that is with the knowledge of the interpretation that courts have given to an existing statute.”); see also Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”). When the word “dismissed” is" }, { "docid": "10816562", "title": "", "text": "v. Community Nutrition Inst., 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). The presumption is in favor of permitting review of administrative action, but that presumption can be overcome where “congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme.’ ” Id. at 351 (quoting Ass’n of Data Processing Service Organizations v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). IY. ANALYSIS Defendant has moved to dismiss Plaintiffs complaint, arguing that this Court lacks jurisdiction to entertain Plaintiffs claim because: 1) adjustments to OPPS funding decisions are not subject to judicial review, pursuant to 42 U.S.C. § 1395Í (t)(12)(A), and 2) the administrative remedies available under the Medicare Statute were not first pursued. The Court finds that it lacks jurisdiction to hear Plaintiffs claims pursuant to 42 U.S.C. § 1395Z (t)(12)(A), and thus does not reach Defendant’s second argument. To determine “[w]hether and to what extent a particular statute precludes judicial review,” a Court must look to the statute’s “express language ... the structure of the statutory schemes, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984). Nonetheless, the “first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). 42 U.S.C. § 1395Z (t)(12)(A) states that “there shall be no ... judicial review ... of this title or of the development of the classification system ... including the establishment of groups and relative payment weights for covered OPD [Out Patient Department] services.” The D.C. Circuit has previously interpreted this provision to “clearly preclude judicial review of the Secretary’s adjustments to prospective payment amounts.” Amgen, Inc. v. Smith, 357 F.3d" }, { "docid": "22142913", "title": "", "text": "dismissed for failure to state a claim upon which relief can be granted. Four were dismissed without prejudice and the remaining two were simply dismissed, with one order noting that the dismissal counted as a strike for PLRA purposes. II. McLean’s present appeal challenges the dismissal of his § 1983 action contesting the enactment of AEDPA’s statute of limitations. We reach the merits of his appeal only if he is eligible to proceed without prepayment of fees under § 1915 (the IFP statute). To resolve the eligibility issue, we must determine whether he has fewer than three prior dismissals that count as strikes or, if not, whether he is in imminent danger of serious physical injury. The determination of whether McLean is a three-striker under § 1915(g) turns on whether a dismissal without prejudice for failure to state a claim counts as a strike. We conclude for the following reasons that such a dismissal is not a strike. A. Section 1915(g) includes in its list of strikes an action or appeal “that was dismissed on the grounds that it •... fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). In interpreting this provision, we must first determine whether its language “has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. “Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Id. at 340, 117 S.Ct. 843 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Our task here is to determine whether Congress intended an action or appeal “that was dismissed on the grounds that it ... fails to state a claim upon which" }, { "docid": "15224989", "title": "", "text": "in its orders. A. To determine whether the GPSC’s orders constitute “determinations” under section 252 of the 1996 Act, we first look for plain meaning in the pertinent language of that statute. “Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enters., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). As best we can tell, the GPSC rooted its authority under the 1996 Act in 47 U.S.C. § 252(e)(1), which provides: Any interconnection agreement adopted by negotiation or arbitration shall be submitted for approval to the State commission. A State commission to which an agreement is submitted shall approve or reject the agreement, with written findings as to any deficiencies. The plain meaning of this statutory subsection, however, grants state commissions, like the GPSC, the power to approve or reject interconnection agreements, not to interpret or enforce them. It would seem, therefore, that the 1996 Act does not permit a State commission, like the GPSC, to revisit an interconnection agreement that it has already approved, like the ones in this case. Subsection 252(e)(6) of the 1996 Act lends further credence to this interpretation. That subsection provides that “[i]n any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine wheth er the agreement ... meets the requirements of section 251 of this title and this section.” 47 U.S.C. § 252(e)(6). If section 252 truly provided state commissions with the authority to interpret interconnection agreements, then subsection 252(e)(6) would imply that federal courts have the right to review their decisions. If that were the case, one would expect the district court to review the commission’s construction of the agreement under the applicable state contract law — as the district court did in the instant case. The statute, however, only permits the district court to review" }, { "docid": "22312016", "title": "", "text": "the Fund have waived “the right to file a civil action ... for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001” and that the waiver bars claims for “damages sustained” against non-airline defendants. We affirm the district court’s determination and find plaintiffs’ claim barred by their election of remedies. Plaintiffs assert that the waiver provision does not apply to claims against the defendants because the correct interpretation of that section bars suits against only the airplane-transportation industry. Plaintiffs present three arguments to support their contention: they assert that the district court misinterpreted Congress’s purpose in enacting the Air Stabilization Act; that the waiver provision should be examined in the context of its relationship to the statute and subsequent amendments to the Air Stabilization Act; and that the legislative history of the waiver provision supports a narrower interpretation of that provision than that employed by the district court. The City and Motorola counter that the plain language unambiguously bars the current suit and that the legislative history of the Act further supports their view. When interpreting a statute, the “first step ... is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Further, “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) and McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991)). Thus, we begin with the language of the statute itself. In" }, { "docid": "10816563", "title": "", "text": "the statutory schemes, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984). Nonetheless, the “first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). 42 U.S.C. § 1395Z (t)(12)(A) states that “there shall be no ... judicial review ... of this title or of the development of the classification system ... including the establishment of groups and relative payment weights for covered OPD [Out Patient Department] services.” The D.C. Circuit has previously interpreted this provision to “clearly preclude judicial review of the Secretary’s adjustments to prospective payment amounts.” Amgen, Inc. v. Smith, 357 F.3d 103, 112 (D.C.Cir.2004). Moreover, the D.C. Circuit found that the legislative history comports with a preclusion of judicial review of CMS’s authority to set prospective payment methodologies. “That Congress would use such language of prohibition is unsurprising, for piecemeal review of individual payment determinations could frustrate the efficient operation of the complex prospective payment system.” Id. CMS argues that it has the authority to re-classify and repackage Apligraf with other skin substitute products pursuant to its broad powers to establish groups under 42 U.S.C. § 1395Í (t)(2). Plaintiff agrees that if Apligraf is properly considered a regular OPD service under § (t)(2), then CMS was appropriately acting pursuant to its broad authority to “establish groups” under § (t)(2), and thus § (t)(12)(A) does in fact preclude this Court’s review of the matter. However, Plaintiff argues that Apligraf is not a regular OPD service, and instead should properly be considered a SCOD under 42 U.S.C. § 1395Í (t)(14), for which Congress has required a separate, unpackaged payment mechanism. By grouping Apligraf payments with its surgical procedure," }, { "docid": "1880461", "title": "", "text": "preclude all future use of a negative inference analysis in support of retroactive intent.’”) (quoting State of Nevada v. United States, 925 F.Supp. 691, 693 (1996)). Jeffries compared two chapters of the AEDPA, one expressly retrospective, the other not, to justify not drawing a negative inference to make both retrospective. Section 127 does not have a comparable statutory composition. The application Sellers seek here is “positive” inference; ie., the absence of language specifying Section 127 applies to pending actions means Congress intended it to apply; not the converse, since Congress did not say it, the statute cannot apply to pending cases. The language of the Act alone does not contain an express command or unambiguous directive that the statute is to be applied retrospectively to pending judicial actions brought a State. Amicus and Augustine cite Robinson v. Shell Oil Co., 519 U.S. 337, 340-42, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), and United States v. Lewis, 67 F.3d 225, 228-29 (9th Cir.1995), describing that the first step in statutory interpretation “is to determine whether the language at issue has a plain and unambiguous meaning.” Robinson, 519 U.S. at 340, 117 S.Ct. 843. The “inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Id. (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). “Canons of statutory construction dictate that if the language of a statute is clear, we look no further than that language in determining the statute’s meaning.” Lewis, 67 F.3d at 228. These cases, do not explicitly address legislative retrospectivity and use differing terms to define the review standard.. Compare Robinson, 519 U.S. at 340, 117 S.Ct. 843 (“plain and unambiguous”) and Lewis, 67 F.3d at 228 (“clear”), with Martin, 527 U.S. at 353, 119 S.Ct. 1998 (“unambiguous directive” or “express command”). Steinmeyer cites three cases as authority that the statutory interpretation ceases if the plain language of the statute is clear and unambiguous: Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), United" }, { "docid": "17079696", "title": "", "text": "estate. Cf. In re Christian Life Ctr., 821 F.2d at 1373. As even the Third Circuit has recognized, “[m]ost activities of an interested party that contribute to the estate will also ... benefit that party to some degree, and the existence of a self-interest cannot in and of itself preclude reimbursement.” Lebrón, 27 F.3d at 944. Channel and Price contributed substantially to the reorganization, not “incidentally” or “minimally.” In re Lister, 846 F.2d at 57. The bankruptcy court did not err in approving the Channel and Price administrative claim. AFFIRMED. . Because we affirm the decision to grant Channel’s claim, we note that the practical result in this case would be the same even if Price were not a creditor. The administrative expenses at issue are attorneys’ fees and costs owed to the law firm that represented Price and Channel. The firm does not appear to have divided its billing records between Price and Channel, and Channel could likely have recovered the entire amount on its own claim. BRUNETTI, Circuit Judge, concurring. I write a separate concurrence because on the facts of this case I would go one step further and hold that a creditor’s motivation is not dispositive or even relevant in deciding whether to grant a § 503(b) claim. When interpreting a statute, “[o]ur first step ... is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). This court’s inquiry must end if the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). If the text of the statute includes undefined terms — as is the situation here where Congress failed to fully define “substantial contribution” — we construe those terms to have their ordinary meanings. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). When the plain language of" } ]

[ { "docid": "22649290", "title": "", "text": "the BIA’s adverse credibility finding. In this case, the inconsistencies are the sum total of Mr. Pal’s testimony. And they “involved the heart of his asylum claim,” which rests only on these two incidents, de Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir.1997) (citations omitted). Nor was the IJ’s credibility determination based solely on the fact that the asylum application was less complete than the testimony at the hearing, another basis on which this court has rejected adverse credibility findings. See Aguilera-Cota v. INS, 914 F.2d 1375 (9th Cir.1990). Here, Mr. Pal’s sworn testimony was inconsistent with, not an amplification of, his application. As Mr. Pal bears the burden of establishing his eligibility for asylum, the contradictions in his testimony regarding the heart of his claim support the BIA’s conclusion that he has not done so. Nothing in the record compels otherwise. VI Nothing in the record compels a result different from that reached by the BIA. Accordingly, we deny the Pals’ petition for review of the BIA’s decision. PETITION FOR REVIEW DENIED. . The asylum applications of the children are derivative of those of Mrs. Pal. . We review determinations of the BIA under the highly deferential standard of substantial evidence. See Singh v. INS, 134 F.3d 962 (9th Cir.1998). The BIA’s decision must be affirmed unless the petitioner can establish “that the evidence he presented was so compelling that no reasonable factfinder could fail to find [eligibility for asylum].\" INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). As we have pointed out, the \"strict standard” of substantial evidence review \"bars a reviewing court from independently weighing the evidence and holding that petitioner is eligible for asylum, except in cases where compelling evidence is shown.” Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994). Where, as here, the BIA exercised its power to conduct an independent review of the record, we review the decision of the BIA and not that of the IJ. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). . Also unlike in Campos-Sanchez, Mrs. Pal had" } ]

[ { "docid": "22651782", "title": "", "text": "a summary order adopting, and affirming the IJ’s decision in its entirety, dismissing the appeal in an order dated May 9, 2001. This petition followed. II. Discussion: Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA. Al-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). The standard of review is extremely deferential: “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A)-(B). Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner “must establish that the evidence not only supports that conclusion, but compels it.” Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (citation and internal quotation omitted). The same standard applies to the IJ’s credibility findings. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001); Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). Thus, this court must deny Farah’s petition unless Farah has presented evidence “so compelling that no reasonable factfin-der could find” that he was not credible. Garrovillas v. INS, 156 F.3d 1010, 1015-16 (9th Cir.1998); see also Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. Here, the IJ established a legitimate, articulable basis to question Farah’s credibility and offered specific, cogent reasons for disbelief as required under our law. See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000). These credibility findings went to key elements of the asylum application, including identity, membership in a persecuted group, and date of entry in the United States. Eligibility for asylum depends on the credible establishment of these elements. 8 U.S.C. § 1158(d)(5)(A)(i). We must defer to the IJ’s credibility findings and uphold the denial of asylum relief. Because we affirm the BIA’s determination that Farah failed to establish eligibility for asylum, we also affirm the denial of Farah’s application for withholding of removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000) (“A failure to satisfy the lower standard of proof required to establish eligibility for asylum therefore necessarily results in a failure" }, { "docid": "22696718", "title": "", "text": "“The substantial evidence test is essentially a case by case analysis requiring review of the whole record. Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987) (internal citation omitted). Questions of law raised in a petition for review are reviewed de novo. Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001). When the BIA has reviewed the IJ’s decision and incorporated parts of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s. Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). Ill To be eligible for asylum, Rivera is required to show that she is unwilling or unable to return to her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To demonstrate a well-founded fear of persecution, Rivera must show that she subjectively fears persecution and must “offer ‘credible, direct, and specific evidence in the record’ to show that persecution is a reasonable possibility.” Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995)). Although the substantial evidence standard is deferential, the IJ must provide “specific, cogent reasons” for an adverse credibility finding that bear a legitimate nexus to the finding. Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000). “These reasons cannot be peripheral, but rather must go to the heart of petitioner’s claim.” Desta, 365 F.3d at 745. After careful review of the administrative record, we find that substantial evidence supports the IJ’s credibility determination. The IJ determined, and the BIA agreed, that the numerous inconsistencies between Rivera’s 1997 testimony and her 2004 testimony showed a lack of credibility. Rivera repeatedly gave inconsistent testimony regarding the details of her abduction and those details go to the heart of her claim. Desta, 365 F.3d at 745. These inconsistencies, particularly when viewed cumulatively, deprive her claim" }, { "docid": "16199722", "title": "", "text": "had sexual intercourse with a minor. Third, the IJ denied Sheikh’s asylum claim on the merits. The IJ also denied Sheikh’s claim for withholding of removal, concluding Sheikh failed to meet the higher burden of proof required for such relief. Finally, the IJ denied Sheikh relief under the CAT, because Sheikh failed to prove it was more likely than not he would be tortured by the government if removed to Somalia. The BIA affirmed the IJ’s decision without opinion. Thus, for purposes of our review, the IJ’s decision constitutes the final agency determination. See Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir.2005). II. DISCUSSION A. Asylum and Withholding of Removal Claims Section 208 of the INA gives the Attorney General discretion to grant asylum to an individual who is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). The INA defines a “refugee” as an alien who is unwilling or unable to return to his or her 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.” Id. § 1101(a)(42)(A). An alien petitioning for asylum bears the burden of proving past persecution or a well-founded fear of future persecution. 8 C.F.R. § 208.13(a). A well-founded fear is one that is “both subjectively genuine and objectively reasonable.” Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993) (per curiam). We defer to an immigration judge’s finding regarding a petitioner’s credibility, if that finding is supported by specific, cogent reasons. Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th Cir.2005). “It is well settled that an immigration judge is in the best position to make credibility findings because he [or she] sees the witness as the testimony is given.” Mayo v. Ashcroft, 317 F.3d 867, 871 (8th Cir.2003) (citation omitted). “While minor inconsistencies and omissions will not support an adverse credibility determination, inconsistencies or omissions that relate to the basis of persecution are not minor but are at the heart of the asylum claim.” Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th Cir.2004) (citation omitted). Sheikh argues we should" }, { "docid": "22464069", "title": "", "text": "well as that of their children if they are returned to Pakistan. Although the IJ did not question Petitioners’ credibility, he ruled that Petitioners had not met their burden of proof to warrant asylum or withholding of deportation. First, the IJ explained that none of the threats against Petitioners had been carried out. Second, the IJ stated that Petitioners can safely relocate within Pakistan to avoid any further threats by the MQM. As a result, the IJ denied Petitioners’ applications for asylum and withholding of removal. Petitioners appealed the IJ’s decision to the BIA. Reasoning that Petitioners “failed to establish past persecution” and “failed to establish that it would be unreasonable for them to relocate [within Pakistan],” the BIA affirmed the IJ’s denial of Petitioners’ applications for asylum and withholding of removal. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction over a final removal order pursuant to 8 U.S.C. § 1252(a)(1). We review for substantial evidence the BIA’s decision that Petitioners have not established eligibility for asylum. Cardenas v. INS, 294 F.3d 1062, 1065 (9th Cir.2002). We must uphold the BIA’s decision if it is “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)). The BIA’s decision can be overturned “only where the evidence is such that a reasonable factfinder would be compelled to conclude that the requisite fear of persecution existed.” Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). Because neither the IJ nor the BIA made negative credibility findings, we accept Petitioners’ testimony as true. Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000). We also review for substantial evidence the BIA’s determination that Petitioners have failed to meet the higher burden required for withholding of removal. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). DISCUSSION I. Asylum Section 208(a) of the Immigration and Nationality Act (“INA”) affords the Attorney General discretion to grant political asylum to any alien deemed to be a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is an" }, { "docid": "22801017", "title": "", "text": "reasons explicitly identified by the BIA, and then examine the reasoning articulated in the IJ’s oral decision in support of those reasons. Cf. Rivera, 508 F.3d at 1275(‘When the BIA has reviewed the IJ’s decision and incorporated parts of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.”). Stated differently, we do not review those parts of the IJ’s adverse credibility finding that the BIA did not identify as “most significant” and did not otherwise mention. “We review the BIA’s findings of fact, including credibility findings, for substantial evidence and must uphold the BIA’s finding unless the evidence compels a contrary result.” Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006) (internal quotation marks omitted); see 8 U.S.C. § 1252(b)(4)(B). Under this deferential standard of review, “the IJ or BIA must identify specific, cogent reasons for an adverse credibility finding, and the reasons must .... strike at the heart of the claim for asylum.” Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006) (internal quotation marks and citations omitted). “Minor inconsistencies that reveal nothing about an asylum applicant’s fear for her safety are not an adequate basis for an adverse credibility finding.” Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004) (internal quotation marks and brackets omitted). “An IJ must ... afford petitioners a chance to explain inconsistencies, and must address these explanations.” Singh, 439 F.3d at 1105. III. Discussion The BIA affirmed the IJ based on only four of the reasons the IJ provided in support of his adverse credibility finding. “We independently evaluate each ground cited by the IJ for his adverse credibility findings.” Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir.2004). “So long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the] claim of persecution, we are bound to accept the IJ’s adverse credibility finding.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003). We conclude that the BIA has failed to provide “specific, cogent reasons” in support of the adverse credibility finding. Therefore, the adverse credibility finding is not" }, { "docid": "22722999", "title": "", "text": "denied Mr. Singh’s asylum application and ordered him removed to India. The IJ found that Mr. Singh’s testimony was implausible and not credible. Alternatively, the IJ found that even if Mr. Singh’s testimony were accepted as truthful, he had not demonstrated that he had suffered past persecution because of imputed political opinion. The BIA affirmed in a per curiam decision dated February 25, 2003. The BIA’s opinion included á short footnote denying Mr. Singh’s claim under the Convention Against Torture because he had “not proffered prima facie evidence that it was more likely than not that he would be tortured if he returned to India.” Mr. Singh timely petitioned for review on March 24, 2003. We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). II Mr. Singh contends that his petition for review should be granted because substantial evidence does not support the IJ’s finding that his testimony was not credible. We review adverse credibility determinations for substantial evidence and reverse only if the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Chen v. Ashcroft, 362 F.3d 611, 616 (9th Cir.2004). Although this standard is deferential, the IJ or BIA must identify “specific, cogent reasons” for an adverse credibility finding, and the reasons must be substantial and legitimately connected to the finding. Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996) (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996), superceded by statute on other grounds, 8 U.S.C. § 1252(g) (1996), Pub.L. No. 104-208, 110 Stat. 3009). This means that the reason identified must “strike at the heart of the claim” for asylum. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). “Minor inconsistencies ... that do not relate to the basis of an applicant’s alleged fear of persecution, [or] go to the heart of the asylum claim” do not generally support an adverse credibility finding. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003). An IJ must also afford petitioners a chance to" }, { "docid": "22957066", "title": "", "text": "process rights. See id. Here, the LI did not make a credibility finding. The IJ'5 decision therefore did not put the Abovians on \"notice that [their] credibility was questioned\" or that they should provide the BIA with \"`explanations for alleged discrepancies'\" in their testimony. Pal v. INS, 204 F.3d 935, 938-39 (9th Cir.2000) (quoting Campos-Sanchez, 164 F.3d at 449). As a result, the BIA violated the Abovians' rights to due process. We must therefore remand this matter to the BIA so that Abo-vians will have that opportunity. See Campos-Sanchez, 164 F.3d at 450. Even assuming no due process violation, the BIA's credibility finding is not supported by substantial evidence. To deny asylum on credibility grounds, the BIA must have a \"legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief.\" Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). The BIA found Abovian's testimony to be \"disjointed, incoherent, and implausible.\" This circuit has consistently held that an \"immigration judge is in the best position to make credibility findings because he sees the witness as the testimony is given.\" Id. The BIA does have \"the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of the evidence.\" Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995) (quoting Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991)). But the \"special deference\" accorded to an IJ'5 credibility determination that is based on firsthand observations of the alien's demeanor and assessments of the tone and tenor of the alien's testimony does not apply to the BIA's independent, adverse credibility determination. See Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999) (citing Paredes-Urrestarazu v. INS, 36 F.3d 801, 818-19 (9th Cir.1994)). \"`Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the [BIA] is fatally flawed.'\" Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quoting Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir.1990)). Any reasons put forth in support of an" }, { "docid": "22649413", "title": "", "text": "on account of ... political opinion.’ ” Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993) (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish a well-founded fear of persecution, de Leon must show that his fear is “subjectively genuine and objectively reasonable.” Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996). “An asylum applicant’s candid, credible, and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.” Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992) (internal quotations and citation omitted). The IJ and BIA denied relief because they found de Leon to be not credible. We review the IJ’s and BIA’s credibility findings for substantial evidence and, thus, must uphold the findings “unless the evidence presented compels a reasonable fact-finder to reach a contrary result.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Although we give “substantial deference” to credibility findings, such a finding “must be supported by a specific, cogent reason....” Berroteran-Melendez, 955 F.2d at 1256 (internal quotations and citation omitted). An initial issue presented is whether we review the IJ’s or the BIA’s decision. Generally, if the BIA conducts a de novo review of the record and makes an independent determination about whether relief is appropriate, we review the BIA’s decision. See Yepes-Prado v. INS, 10 F.3d 1363, 1366 (9th Cir.1993). If, however, the BIA reviews the IJ’s decision for an abuse of discretion, we review the IJ’s decision. Id. at 1366-67. In the present ease, it is not clear whether the BIA conducted an independent review of the record and made its own finding that de Leon is not credible or whether the BIA reviewed the IJ’s credibility finding for an abuse of discretion. We, however, need not resolve this issue. Substantial evidence supports both the IJ’s and the BIA’s credibility finding and both set forth specific reasons for the finding. In making the adverse credibility finding, the IJ and the BIA relied on the discrepancies between de Leon’s two applications for asylum and his failure to present a satisfactory explanation for the discrepancies. Generally, minor inconsistencies and minor" }, { "docid": "22698341", "title": "", "text": "The IJ found Zamanov’s explanation for his failure to testify about these incidents before the asylum officer to be “completely inadequate,” stating that Zamanov “knew that he was not telling his complete story. He was asked whether there were any important events which he was not testifying to, and he said that there were not.” On appeal, the BIA adopted and affirmed the decision of the IJ. II. Discussion An adverse credibility determination is reviewed under the substantial evidence standard. See Singh-Kaur v. INS, 183 F.3d 1147, 1149-50 (9th Cir. 1999); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). When an IJ provides a specific reason for an adverse credibility finding, “her judgment merits deference as long as (1) ‘the reasoning employed by the IJ is [not] fatally flawed,’ and (2) the reason is ‘substantial and bear[s] a legitimate nexus to the finding.’ ” Wang v. INS, 352 F.3d 1250, 1258 (9th Cir.2003). The IJ’s reasons for finding Zamanov not credible were substantial, adequately reasoned, and supported by evidence in the record. While “minor inconsistencies” that “reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding,” Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988), inconsistencies regarding events that form the basis of the asylum claim are sufficient to support an adverse credibility determination. See Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990). Testimony about the events leading up to the petitioner’s departure, or about the circumstances that led to the persecution, go to the “heart of the claim.” See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (testimony as to the number of times applicant was arrested before his departure went to the heart of the claim); Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007) (details regarding the event that allegedly spurred the persecution). Material alterations in the applicant’s account of persecution are sufficient to support an adverse credibility finding. See Ceballos-Castillo, 904 F.2d at 520. We have found a material alteration where an asylum applicant presented substantially different accounts" }, { "docid": "22736085", "title": "", "text": "entered without admission or parole. At the removal hearing, Singh conceded removability. At 'a subsequent hearing, the IJ denied Singh’s application for asylum and withholding of removal on the grounds that his testimony lacked credibility. In addition, the IJ rejected Singh’s application for voluntary departure because he had not been physically present in the United States for a year or more. On appeal, the BIA conducted a de novo review of the record and affirmed the IJ’s adverse credibility determination. The BIA cited three reasons for its adverse credibility determination: the omission of Singh’s arm injuries in the doctor’s letter and the inadequacy of Singh’s explanation for this omission; the discrepancy regarding the location of the January 1997 political rally; and Singh’s alleged unresponsiveness to questions at the hearing. Finding Singh’s testimony not credible, the BIA declined to consider the merits of Singh’s asylum and withholding of removal claims, reasoning that “a persecution claim which lacks veracity cannot satisfy the burdens of proof and persuasion necessary to establish eligibility for asylum and withholding of removal.” Singh filed this timely appeal. II. DISCUSSION A. Standard of Review We review the BIA’s denial of asylum for substantial evidence. Al Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We must affirm if the BIA’s determination is “supported by reasonable, substantial, and probative evidence,” and we reverse only if “the evidence [that the petitioner] 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, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Where, as here, the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). B. The BIA’s Adverse Credibility Finding Singh claims that he is entitled to asylum and withholding of removal pursuant to INA § 208(a) and former § 243(h). The credibility of a petitioner’s oral testimony before the IJ is critical for establishing the requisite fear of persecution necessary to grant asylum or withholding of removal. See Salazar-Paucar v. INS, 281" }, { "docid": "22333328", "title": "", "text": "records, and the fliers themselves. Salaam petitions for review. We have jurisdiction pursuant to 8 U.S.C. § 1252. II. Standard of Review Because the BIA conducted a de novo review of Salaam’s eligibility for asylum, we review the Board’s decision. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). We review the factual findings underlying the BIA’s decision, including its adverse credibility finding, under the substantial evidence test. See Arteaga, v. INS, 886 F.2d 1227, 1228 (9th Cir.1988); Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). III. Analysis A. Adverse Credibility Determination Although the BIA rejected the IJ’s adverse credibility determination, the BIA failed to make an explicit credibility finding of its own. The BIA simply commented on the “implausibility” of aspects of Salaam’s testimony and concluded that Salaam had not met his burden of proving eligibility for asylum. Because a finding that testimony is “implausible” indicates disbelief, for the purposes of this appeal, we treat the BIA’s comments regarding “implausibility” as an adverse credibility finding. Cf. Abovian v. INS, 219 F.3d 972, 978 (9th Cir.2000) (reviewing an adverse credibility finding that was based on the BIA’s determination that the petitioner’s testimony was “distracted, incoherent, and implausible”). As this Court has cautioned, however, the BIA should clearly address the issue of credibility whenever the IJ makes a finding that an applicant is not credible. Cf. Cordon-Garcia v. INS, 204 F.3d 985, 993 (9th Cir.2000) (“[W]e strongly encourage the BIA to discuss or expressly adopt, rather than ignore, the IJ’s credibility findings in an asylum case.”). The BIA “ ‘must have a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.’ ” Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quoting Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994)). Any such reason “ ‘must be substantial and bear a legitimate nexus to the finding.’ ” Id. (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996)). This Court reverses an adverse credibility determination that is based on “speculation and conjecture” and is not supported by evidence in" }, { "docid": "22957065", "title": "", "text": "for the KGB/NSC. II. ANALYSIS We review the BIA’s determination that an alien has not established eligibility for asylum or withholding deportation under the substantial evidence standard. See Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Substantial evidence can be found lacking only if the applicant shows that the evidence which 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 Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). \"We review de novo claims of due process violations in deportation proceedings.\" Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.2000). A. Due Process Violation When the BIA decides an asylum case \"based on an independent, adverse, credibility determination, contrary to that reached by the IJ, it must give the petitioner an opportunity to explain any alleged inconsistencies that it raises for the first time.\" Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). To do otherwise, violates the petitioner's due process rights. See id. Here, the LI did not make a credibility finding. The IJ'5 decision therefore did not put the Abovians on \"notice that [their] credibility was questioned\" or that they should provide the BIA with \"`explanations for alleged discrepancies'\" in their testimony. Pal v. INS, 204 F.3d 935, 938-39 (9th Cir.2000) (quoting Campos-Sanchez, 164 F.3d at 449). As a result, the BIA violated the Abovians' rights to due process. We must therefore remand this matter to the BIA so that Abo-vians will have that opportunity. See Campos-Sanchez, 164 F.3d at 450. Even assuming no due process violation, the BIA's credibility finding is not supported by substantial evidence. To deny asylum on credibility grounds, the BIA must have a \"legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief.\" Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). The BIA found Abovian's testimony to be \"disjointed, incoherent, and implausible.\" This circuit has consistently held that an \"immigration judge is in the best position to make" }, { "docid": "22649285", "title": "", "text": "circuit that have overturned an adverse credibility finding by the BIA or IJ despite inconsistencies have involved instances in which the contradictions were minor. See, e.g., Martinez-Sanchez v. INS, 794 F.2d 1396 (9th Cir. 1986) (reversing an adverse credibility finding based on inconsistencies in the number of children the applicant had and the date he joined a paramilitary group); Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir.l988)(reversing an adverse credibility finding based on inconsistencies regarding the date of an incident and the length of time the petitioner hid from a death squad). The inconsistencies in Mrs. Pal’s story are not minor; rather, they go to the heart of her asylum application. The single event of persecution that she alleges is the 1987 rape. The numerous inconsistencies cast serious doubt on whether this event ever occurred. The credibility determination, based on inconsistencies in her testimony and between her testimony and application, finds support in the record. At the very least, the record does not compel the opposite conclusion. Ill Mrs. Pal contends that the BIA violated due process when it affirmed the adverse credibility finding of the IJ, but rested its finding on certain grounds not referenced by the IJ. For this contention she relies on Campos-Sanchez v. INS, 164 F.3d 448 (9th Cir.1999). In Campos-Sanchez, the court held that “the BIA erred in failing to provide Campos-Sanchez with a reasonable opportunity to offer explanations for alleged discrepancies” where the BIA’s adverse credibility finding followed explicit findings of credibility by the INS and the IJ. Id. at 449. The BIA did not rely on the grounds relied on by the IJ to deny Campos-Sanchez asylum; instead it rejected his application for asylum solely on the basis of its adverse credibility finding. See id. at 449-50. In ruling that the BIA must give the petitioner the opportunity to explain any inconsistencies, the court relied on the fact that Campos-Sanchez “had not been advised below that his credibility was questionable, or that any discrepancies appeared to exist.” Id. at 450. Unlike the petitioner in Campos-Sanchez, Mrs. Pal was found not to be credible" }, { "docid": "22957067", "title": "", "text": "credibility findings because he sees the witness as the testimony is given.\" Id. The BIA does have \"the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of the evidence.\" Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995) (quoting Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991)). But the \"special deference\" accorded to an IJ'5 credibility determination that is based on firsthand observations of the alien's demeanor and assessments of the tone and tenor of the alien's testimony does not apply to the BIA's independent, adverse credibility determination. See Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999) (citing Paredes-Urrestarazu v. INS, 36 F.3d 801, 818-19 (9th Cir.1994)). \"`Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the [BIA] is fatally flawed.'\" Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quoting Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir.1990)). Any reasons put forth in support of an adverse credibility finding \"`must be substantial and bear a legitimate nexus to the [credibility] finding.'\" Id. (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996)). As one of two reasons for its adverse credibility finding, the BIA stated that Abovian \"did not support his claims with documentary proof or adequately explain his failure to do so.\" It is well settled in this circuit that independent corroborative evidence is not required from asylum applicants where their testimony is unrefuted. See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984). Here, there is no evidence refuting or in any way contradicting Abovian's testimony. A lack of corroborating evidence is certainly not substantial evidence supporting an adverse credibility finding. The second reason the BIA gave in support of its adverse credibility finding was an alleged inconsistency in Abovian's testimony. Specifically, the BIA noted that “when pressed to testify about specific abuses inflicted by the KGB, the respondent testified that ‘there have been physical abuses in my life but I cannot say it’s the KGB or not and" }, { "docid": "22729682", "title": "", "text": "On April 30, 1996, the BIA issued its decision affirming the IJ’s denial of the application. Garrovillas petitioned for review. ANALYSIS Standard of Review In the instant case, rather than adopting the IJ’s reasoning, the BIA stated that it conducted a “de novo review of the record.” When the BIA has conducted a de novo review, our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). Any error committed by the IJ thus “may be ‘rendered harmless’ by the BIA’s application of the correct legal standard.” Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994) (quoting Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991)). The BIA’s opinion, however, cannot be mere “boilerplate,” and must describe with “sufficient particularity and clarity the reasons for denial of asylum.” Shirazi-Parsa, 14 F.3d at 1427 (quoting Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991)). We review the factual determinations of the BIA under the substantial evidence standard. Shirazi-Parsa, 14 F.3d 1424, 1429 (9th Cir.1994). The court must determine whether the BIA’s conclusion, based on the evidence presented, is “substantially reasonable.” Because the applicant bears the burden of proof to demonstrate eligibility for asylum, this court will reverse “ ‘only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.’ ” Id. at 1427 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). This standard does not “preclude a court from vacating and remanding a ease for further consideration where the BIA’s denial of asylum was based on an error of law.” Kotasz v. INS, 31 F.3d 847 (9th Cir.1994). The BIA’s Credibility Determination Is Not Supported by Substantial Evidence The BIA found that petitioner Garrovillas’s testimony was not credible. We review credibility findings, like other factual determinations, under the substantial evidence standard. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996). The BIA must have “a legitimate articulable basis to question the petitioner’s credibility, and" }, { "docid": "22794937", "title": "", "text": "dismissed Petitioners’ appeals by issuing a one-page per curiam order for each. The BIA found that the IJ’s adverse credibility determination was based on Petitioners’ demeanor and material inconsistencies between each Petitioner’s testimony, Senator Thach’s testimony, and the documentary evidence. The BIA highlighted Petitioners’ failures to mention their participation in the 1998 demonstration in their applications for asylum, their testimonial inconsistency regarding where Prak was on the day Kin was arrested, and the inconsistency regarding whether Senator Thach petitioned Cambodian courts for either Petitioner’s release. Petitioners filed their Petition for Review within the 30-day time limit, giving us jurisdiction under 8 U.S.C. § 1252. II A If the BIA conducts its own de novo review and does not adopt the IJ’s decision as its own, we review the BIA’s decision. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review an adverse credibility finding for substantial evidence. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir.2004). We reverse the BIA’s decision only if the petitioner’s evidence was “so compelling that no reasonable factfinder could find that he was not credible.” Fa-rah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (internal quotation omitted). Our review will require reference to the IJ’s decision because the BIA’s decision in this case accorded significant deference to the IJ’s observations. See Avetova-Elisse va v. INS, 213 F.3d 1192, 1197 (9th Cir. 2002). The substantial evidence standard is deferential, but the BIA must highlight specific and cogent reasons to support an adverse credibility finding. Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). Additionally, any reason given by the BIA in support of its determination must be “substantial and bear a legitimate nexus to the finding.” Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000) (internal quotation omitted). Any inconsistencies relied upon by the BIA must go to the heart of the asylum claim to support an adverse credibility finding. Alvarez-Santos, 332 F.3d at 1254. If the BIA relies on inconsistencies, it must explain the significance of the discrepancy or comment on the petitioner’s evasiveness when asked about it. Bandari v. INS, 227 F.3d" }, { "docid": "22630767", "title": "", "text": "fields. Petitioner’s cousin was nearby on horseback. The men asked the uncle whether he belonged to Petitioner’s family. This question prompted Petitioner’s cousin to flee. Petitioner’s uncle told the men he did not know where she was. When he tried to run away, he was shot, attacked with a machete, and killed. The IJ denied Petitioner’s application for asylum and withholding of deportation, citing in part both credibility concerns and her inability to establish that she suffered any persecution on account of an imputed political opinion. The BIA dismissed Petitioner’s subsequent appeal, but affirmed the IJ’s decision to grant her voluntary departure. DISCUSSION A. Standard of Review Where the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted. Ghaly v. INS, 58 F.3d 1425, 1480 (9th Cir.1995). The IJ’s and the BIA’s credibility findings are reviewed for “substantial evidence,” Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir.1999), as are all other factual findings. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). Substantial evidence is also the governing standard of review for the determination that Petitioner has not established eligibility for asylum. See Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). The “substantial evidence” standard requires this court to uphold the IJ’s and BIA’s findings and decisions if supported by “reasonable, substantial, and probative evidence on the record.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). To prevail, Petitioner must show that the evidence not only supports, but compels the conclusion that these findings and decisions are erroneous. See Singh, 134 F.3d at 966. “This strict standard bars a reviewing court from independently weighing the evidence and holding that petitioner is eligible for asylum, except in cases where compelling evidence is shown.” Id. (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994)) (internal quotation marks omitted). Thus, Petitioner cannot prevail unless she demonstrates that any reasonable factfinder would have to conclude that she is eligible for relief from deportation. See" }, { "docid": "22782670", "title": "", "text": "Lopez’s testimony, the IJ delivered an oral opinion denying Lopez’s request for asylum and withholding of deportation based on the IJ’s negative evaluation of Lopez’s credibility. The IJ gave three reasons for his credibility finding: (1) Lopez did not reference the alleged November 1991 confrontation with the guerillas on his asy lum application, (2) Lopez did not produce corroboration of his story from his mother or his friend Jairo, and (3) Lopez’s account of the guerilla confrontation was in itself hard to believe. The IJ then granted Lopez’s alternative request for voluntary departure. The BIA affirmed the IJ’s decision based on the reasons set forth in the IJ decision and dismissed the appeal. This petition for review followed. ANALYSIS A. Standard of Review When, as here, the BIA clearly incorporates the IJ’s decision and fails to perform an independent review of the record, we review the IJ’s decision. Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995). We review a credibility finding under the substantial evidence standard, Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987), and therefore are required to uphold the IJ’s finding unless the evidence presented compels a reasonable factfinder to reach a contrary result. Abedini v. INS, 971 F.2d 188, 191 (9th Cir.1992). Although this standard is deferential, the IJ must offer “a specific cogent reason” for his adverse credibility finding, Turcios, 821 F.2d at 1399, and the reason set forth must be “substantial and must bear a legitimate nexus to the finding.” Nasseri v. Moschorak, 34 F.3d 723, 726 (9th Cir.1994). Lastly, when the IJ provides specific reasons for the questioning of a witness’s credibility, this court may evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible. Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988). B. The IJ’s Credibility Finding The IJ found that the “credibility of the respondent [was] less than convincing.” (Administrative Record (“A.R.”) at 27). The IJ gave three reasons for this finding: (1) Lopez did not “in any way reference his alleged November, 1991 confrontation with Guatemalan" }, { "docid": "22348294", "title": "", "text": "show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 483-84, 112 S.Ct. at 817; see also Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). Credibility determinations are judged by the same basic standard. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002); Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000); de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997). In that area, however, we have added that the determination “ ‘must be supported by a specific, cogent reason.’ ” de Leon-Barrios, 116 F.3d at 393 (citation omitted); see also Gui, 280 F.3d at 1225; Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.1999). Here Arulampalam’s claim failed because the BIA, in reliance on the IJ’s decision, determined that Arulampalam was not credible. I am unable to say that the determination was not supported by substantial evidence in the record. Moreover, that lack of credibility went to the heart of Arulampalam’s asylum claim. See de Leortr-Barrios, 116 F.3d at 394. Essentially, his manner of testifying, especially his fragmentary way of answering questions and his apparent lack of knowledge of many of the most significant details surrounding his alleged persecution, left his story with a lack of verisimilitude. The IJ could decide that it was made up rather than credible. On this record, I cannot say that “no reasonable factfinder could fail to find” him credible. Elias-Zacarias, 502 U.S. at 484, 112 S.Ct. at 817. Thus, the BIA could properly determine that he was not entitled to asylum. However, I agree that the BIA erred when it determined that Arulampalam was not entitled to relief under the Torture Convention. The standard under that Convention is not identical with the standard for asylum, and a person’s lack of credibility might result in denial of relief under the latter without absolutely foreclosing relief under the former. See Kamalthas v. INS, 251 F.3d 1279, 1282-84 (9th Cir.2001). The IJ erred when he wholly failed to apply the different standard. I, however, do not join the suggestion" }, { "docid": "22736086", "title": "", "text": "Singh filed this timely appeal. II. DISCUSSION A. Standard of Review We review the BIA’s denial of asylum for substantial evidence. Al Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We must affirm if the BIA’s determination is “supported by reasonable, substantial, and probative evidence,” and we reverse only if “the evidence [that the petitioner] 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, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Where, as here, the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). B. The BIA’s Adverse Credibility Finding Singh claims that he is entitled to asylum and withholding of removal pursuant to INA § 208(a) and former § 243(h). The credibility of a petitioner’s oral testimony before the IJ is critical for establishing the requisite fear of persecution necessary to grant asylum or withholding of removal. See Salazar-Paucar v. INS, 281 F.3d 1069, 1073-74 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002). To support an adverse credibility determination, the BIA must have “a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (quoting Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998)). Inconsistencies in the petitioner’s statements must go to “the heart of [his] asylum claim” to justify an adverse credibility finding. Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (alteration in original) (quoting Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990)). “ ‘Minor inconsistencies’ that ‘reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.’” Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988)). Thus, we must determine whether the evidence cited by the BIA supports its adverse credibility finding. Here, the BIA based its finding on alleged inconsistencies regarding the injuries Singh" } ]

[ { "docid": "23220911", "title": "", "text": "series of discriminatory acts, but he does not clearly specify what this series was. What he has done “is hardly a serious treatment of ... complex issue[s]” and is not sufficient to preserve these points for review, Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir.2011) — certainly not when his “brief presents a passel” of other issues, United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (per curiam). See also United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (warning that it is not enough for litigants to mention arguments “in the most skeletal way, leaving the court to do counsel’s work”). The upshot is that these claims are waived. Rios does no better with his procedural-due-process claim, for this reason: He did not give us a complete English translation of the commission proceedings, which we would need to help decide whether process misfired here. So he loses this aspect of his appeal. See, e.g., Rodríguez, 642 F.3d at 37; Tejada-Batista, 424 F.3d at 103. Similar problems affect Rios’s attempt to undo the summary-judgment ruling for Diaz. He suggests that Diaz is solidarily liable, which, again, is a rather complex tolling concept in Puerto Rico law. See, e.g., Rodríguez, 570 F.3d at 406-13. But he devotes only a single sentence in his opening brief to the issue, which simply asserts that he “tolled the statute of limitations” by suing “parties (including the Municipality) solidarily liable with Appellee Diaz.” He does not explain how that concept works generally or how it works here. The net result is that this issue is waived. See, e.g., Town of Norwood v. Fed. Energy Reg. Comm’n, 202 F.3d 392, 404-05 (1st Cir.2000) (emphasizing, yet again, that “developing a sustained argument out of ... legal precedents is the job of the appellant, not the reviewing court”). Finally, Rios does not challenge the judge’s decision dismissing the unnamed defendants from the suit. Consequently, we need say no more about that as well. See, e.g., United States v. Slade, 980 F.2d 27, 30 n. 3 (1st Cir.1992). We move along, then, to" } ]

[ { "docid": "7854255", "title": "", "text": "of an advocate for the prosecution, constantly interjecting in a manner that indicated annoyance and bias against [ ] counsel, preventing appellant from having a fair trial.” Candelaria-Silva Br. at 50. He then argues that “space limitations do not allow,” id., for a complete listing of all such instances of inappropriate judicial con duct. On those occasions in which the lack of paper or failure to recount one instance of judicial bias prevents counsel from arguing his point, our words in United States v. Zannino, 895 F.2d 1 (1st Cir.1990), are most appropriate: [Ijssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.... Judges are not expected to be mindread-ers. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace. Id. at 17 (internal quotation marks and citations omitted). We resist counsel’s request that we conduct “a reading of the entire record with care,” Candelaria-Silva’s Br. at 50, as a task that should have been completed by him in the first place. CONCLUSION For the reasons stated in this opinion, we affirm. . Translated from Spanish, punto means a \"point in time or space.\" Cassell's Spanish Dictionary 649 (6th ed.1968). . Candelaria’s two brothers, Eulalio Candelaria-Silva and Moisés Candelaria-Silva, were found guilty in an earlier trial. His mother, Alicia Silva-Maysonet, plead guilty on March 1, 1996. . Candelaria-Silva was one of thirty-one defendants named in the indictment, but was a fugitive while the indictment was pending and during the first two trials relating to the indictment. As a result, he was tried alone in the third trial." }, { "docid": "17435958", "title": "", "text": "can only be deemed a request for money damages. Even if this relief could be interpreted otherwise, the Court declines to inject claims sua sponte for equitable relief (reinstatement of beneficiary status or restitution, for example) into the Complaint that have been neither pled nor otherwise requested, and then analyze their efficacy. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones. As we recently said in a closely analogous context: ‘Judges are not expected to be mindreaders. Consequently, a litigant has an obligation ‘to spell out its arguments squarely and distinctly’ or forever hold its peace.’ ”) (citing Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988) (quoting Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988))). Plaintiff has made amply clear that he wishes to use § 1132(a)(3) to obtain an injunction (the purportedly “equitable” hook) compelling the Employer to pay him more money. Great-West prohibits this very application of § 1132(a)(3), thereby requiring summary judgment as to Count IV. Conclusion For the foregoing reasons, Defendants’ Motion for Summary Judgment as to all counts of the Complaint is GRANTED. IT IS SO ORDERED. . See 29 U.S.C. § 1001, et seq. . The determination of whether or not a federal statute preempts a state statute or state common law claims is a question of law and not fact. See Carlo v. Reed Rolled Thread Die Co., 49 F.3d 790, 793 (1st Cir.1995); Degnan v. Publicker Industries, Inc., 83 F.3d 27, 29 (1st Cir.1996); Donato v. Rhode Island Hospital Trust National Bank, 52 F.Supp.2d 317, 323 (D.R.I.1999). . 29 U.S.C. § 1132(a)(3) provides: A civil action may be brought— (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such" }, { "docid": "20452344", "title": "", "text": "the district court’s federal jurisdiction over her case. We have warned parties before that trial judges are not “mind readers,” and that “[i]f claims are merely insinuated rather than actually articulated,” courts are not required to make determinations on them. McCoy v. Mass. Inst, of Tech., 950 F.2d 13, 22 (1st Cir.1991); see also Harriman v. Hancock Cnty., 627 F.3d 22, 28 (1st Cir.2010) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990))); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988) (a party has a duty “to spell out its arguments squarely and distinctly ... [instead of being] allowed to defeat the system by seeding the record with mysterious references to unpled claims”). Moreover, even if Colon’s one sentence claim, bereft of any legal citation or factual analysis, could be deemed to have required notice of its potential exposure to the winds of dismissal for failure to state a justiciable claim — further notice, of course, aside from Colón having already sought to amend her complaint and having fully responded to the Municipality’s summary judgment motion (which sought to effectively remove all of her listed causes of action from the court’s consideration, leaving as her only potential “claim” on which to prop herself before the federal court’s jurisdiction her alleged equal protection claim) — “not ... every sua sponte dismissal entered without prior notice to the plaintiff automatically must be reversed.” González-González v. United States, 257 F.3d 31, 37 (1st Cir.2001). “If it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile, then a sua sponte dismissal may stand.” Id. Here, the record shows that Colón already was afforded the opportunity to amend her complaint, into which she planted the seed of an equal protection claim. But she buried and abandoned the seed in the complaint’s jurisdiction section, failing to support" }, { "docid": "21347565", "title": "", "text": "the district court (most likely because no one ordered a transcription of the proceedings). “It is appellants’ responsibility to provide the court with intelligible briefs and appendices sufficient to support their points on appeal, failing which the court in its discretion ... may scrutinize the merits of the case insofar as the record permits, or may dismiss the appeal if the absence of a [record] thwarts intelligent review. Accordingly, ... wherever material uncertainties result from an incomplete or indecipherable record and impede or affect our decision, we resolve such uncertainties against appellants.” Credit Francais International, S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 700-01 (1st Cir.1996) (citations and internal quotation marks omitted). Lennon has not adequately provided a record and his discussion of this claim is a cursory one (including no analysis of the statute that apparently needs to be interpreted and consisting of an assertion that he has established a prima facie case and a citation to an ADEA ease involving a federal employee that did not analyze 29 U.S.C. § 633a, the relevant ADEA section). See generally United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“It is not enough merely to mention a possible argument in the most skeletal way, .leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.”). We decline to disturb the district court’s ruling. We also uphold the district court’s grant of summary judgment on Lennon’s Title VII race and sex discrimination claims. As an initial matter, we find no abuse of discretion in the district court’s denial of Lennon’s motion to strike the declaration of Daniel M. Hartnett. That declaration concerned which ATF employee had official responsibility to fill the Senior Operations Officer position that Lennon claims he was illegally denied. The motion to strike was based on an alleged lack of personal knowledge by the declarant and on the contention that the declaration drew a legal conclusion. However, the district court could reasonably have found that Hartnett, former Deputy Director and Associate Director of Law Enforcement at ATF, was competent to discuss" }, { "docid": "8105050", "title": "", "text": "mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones”. Id. After all, “[J]udges are not expected to be mindreaders. Consequently, a litigant has an obligation ‘to spell out its arguments square and distinctly,’ or else forever hold its peace”. Id., citing Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988) (quoting Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988)). Precisely, this is what plaintiff has attempted in its presentation. Plaintiff has presented an argument moving the Court to accept the existence of a class based on her status as her brother’s sister without providing the necessary skeletal legal backbone in support thereof. The Court shall not develop an argument as to the applicability of class when plaintiff failed in developing an argument of its applicability. U.S. v. Zannino, 895 F.2d at 17. Consequently, plaintiffs arguments as to the existence of said class is deemed abandoned. Hence the Court deems that plaintiff has failed to represent a cognizable, well-defined class by herself nor any invidiously discriminatory animus behind the termination from employment. Furthermore, even if this Court was to follow the standard held at Libertad v. Welch, 53 F.3d 428 (1st Cir.1995) in that women are a protected class for the protections afforded by § 1985(3), plaintiff failed to allege that the instant claim was pursuant to her status as a women. Hence, plaintiff has also failed to meet this threshold element of a civil conspiracy under § 1985(3). The final requisite for a valid § 1985(3) claim pursuant to Aulson requires that plaintiff suffer either an injury to her person or property, or a deprivation of a constitutionally protected right or privilege. This requirement constitutes the most challenging hurdle to surpass. The plaintiff avers that co-defendant RRA infringed her right to maintain a familial association with her brother pursuant to the First and Fourteenth Amendment, in its substantive due process modality. Therefore, the Court must perform a two-step analysis. Firstly, the Court must determine" }, { "docid": "93728", "title": "", "text": "the clause \"whenever he shall deem such termination necessary or advisable in the interests of the United States” provided criteria that could limit this discretion — a question the Court answered in the negative. See 486 U.S. at 600, 108 S.Ct. 2047. . Webster was decided under 5 U.S.C. § 701(a)(2), whether \"agency action is committed to agency discretion by law,” while Bernardo's case is a question of whether § 1252(a)(2)(b)(ii) precludes judicial review under APA § 701(a)(1). See supra note 2. However, we must still determine whether § 1155 is discretionary because § 1252(a)(2)(B)(ii) precludes review of discretionary decisions. Therefore, the analysis of whether under a statute, \"agency action is committed to agency discretion by law,” would apply to the question of whether § 1155 is discretionary. . To the extent the dissent attempts to distinguish Webster by saying \"in the interests of the United States” is \"a policy-driven assessment,” while \"good and sufficient cause” is \"predicated on binary outcomes,” that argument fails. As we have previously explained, the dissent's claim that “good and sufficient cause” has objective meaning is incorrect. . Bernardo does not develop this argument in his brief; he raised it for the first time at oral argument. It is waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). The dissent is incorrect to make an argument waived by the appellants and to which the appellees had no occasion to reply. The dissent counters that our rule of waiver is “not so broad as to engulf 'legal theories.' \" However, our case law is quite settled on this point: \"[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Id.. . As the issue is waived, we decline to reach it. We note, however, that this matter is far less clear-cut than the dissent makes it out to be. . The language of 8 U.S.C. § 1153(b)(4) has been well analyzed by the Third Circuit in Soltane, which concluded that" }, { "docid": "93729", "title": "", "text": "sufficient cause” has objective meaning is incorrect. . Bernardo does not develop this argument in his brief; he raised it for the first time at oral argument. It is waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). The dissent is incorrect to make an argument waived by the appellants and to which the appellees had no occasion to reply. The dissent counters that our rule of waiver is “not so broad as to engulf 'legal theories.' \" However, our case law is quite settled on this point: \"[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Id.. . As the issue is waived, we decline to reach it. We note, however, that this matter is far less clear-cut than the dissent makes it out to be. . The language of 8 U.S.C. § 1153(b)(4) has been well analyzed by the Third Circuit in Soltane, which concluded that the Attorney General’s action of granting preference visas was not discretionary. 381 F.3d at 146-48. The Third Circuit thus held that denial of a visa petition under § 1153(b)(4) was subject to judicial review. Id. We have not surveyed all visa approval statutes, nor have the parties briefed the issue. There are at least seven different types of visa petitions, including at least three different types of employment-based visa petitions. . Because of this disparate language and context, the cases cited by the dissent do not undermine — and if anything support — our conclusion. . We are unaware of any longstanding tradition of judicial review of the revocation of visa petition approvals. Cf. Kucana, 558 U.S. at 237, 130 S.Ct. 827. To be sure, there may have been isolated examples of judicial review of these decisions prior to the enactment of § 1252(a)(2)(B). See, e.g., Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir.1984); Joseph v. Landon, 679 F.2d 113, 115-16 (7th Cir.1982) (per curiam). However, we have been presented with" }, { "docid": "15437801", "title": "", "text": "virtually no argument with respect to this claim. Beyond a few lines of introduction, his argument, in its entirety, is as follows: Mr. King’s constitutional [due process] and contractual claims that he was denied a fair disciplinary hearing are similar, but are not identical. Even if the Town may deny him a court reporter and a public hearing as a matter of constitutional law, these are clear rights under New Hampshire law and therefore should have been provided under his contractual right to a fair hearing. The common law of contracts holds that a contract should be construed to incorporate the law. 17A Am.Jur.2d, Contracts § 346 and § 381 (“[I]t is commonly said that all existing ... applicable ... statements ... at the time a contract is made become part of it and must be read into it.”). Appellant’s Brief, at 41. It is an established appellate rule that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived- It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.... Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.” Willhauck v. Halpin, 953 F.2d 689, 700 (1st Cir.1991) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)); see also Ramos v. Roche Prods., 936 F.2d 43, 51 (1st Cir.1991) (brief must contain full statement of issues presented and accompanying arguments); Continental Casualty Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 375 (1st Cir.1991) (mere mention, without supporting argumentation, that party seeks review of a district court’s ruling is insufficient to raise issue on appeal); Brown v. Trustees of Boston Univ., 891 F.2d 337, 353 (1st Cir.1989) (same). Accordingly, we find King’s contract claim to be waived. He has failed to present any argumentation in support of his claim, and, indeed, has not even stated his contract claim in a manner that we can understand and analyze without guesswork. VI.Conclusion For" }, { "docid": "17679618", "title": "", "text": "(“U/S CC”) and the Bank of New York asserted that the Proponents did not comply with this provision of the Bankruptcy Code because they did not timely deliver ballots to some of the commercial creditors, and in so doing, failed to properly solicit acceptances of the Plan. But the Bank’s and U/S CC’s memoranda lacked any argument on this point. As a result, the Proponents similarly did not discuss it in their responsive memorandum. Moreover, neither the Bank nor the U/S CC raised this objection at the confirmation hearing. The Court therefore concludes that they have waived their right to challenge confirmation on this ground. This situation is analogous to one where a party raises an issue at the trial level but then fails to pursue it on appeal, or where it raises the issue on appeal in a cursory manner with no supporting case law or statutory citations. In either case, the issue not addressed would be deemed waived. It is the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.... Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990) (internal quotations and citations omitted). See also United States v. Reed, 167 F.3d 984, 993 (6th Cir.1999) (relying on Zanni-no, in finding appellant’s argument “forfeited” due to its inadequacy); United States v. Brown, 151 F.3d 476, 487 (6th Cir.1998); Gafford v. General Electric Co., 997 F.2d 150, 167 (6th Cir.1993); Bob Willow Motors, Inc. v. General Motors Corp., 872 F.2d 788, 795 (7th Cir.1989); Brown, 151 F.3d at 492 (Gilman, J., concurring in part and dissenting in part) (“[t]he provisions of [Federal] Rule" }, { "docid": "18042161", "title": "", "text": "Lozada, 130 P.R. Dec. 712). But, this general duty not to act negligently must arise out of conditions separate from the parties’ contract. Id. Therefore, if Plaintiffs damages arise exclusively from Defendants’ alleged breach of contract, Plaintiff does not have a separate cause of action for negligence. Id. And, as noted above, Plaintiff does exactly that: he rests his negligence claim upon Paulen’s alleged contractual duty to promote his program. Furthermore, although the complaint states that “Defendants were, at the very least, negligent for, among other reasons, failing to promote the program in anyway,” (Docket No. 11-1 ¶77), “[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). As such, the court will not ponder as to whether Plaintiff sought to impose another duty upon Defendants. “Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.” Id. (internal quotation marks omitted). Thus, Plaintiffs negligence claim as affirmatively pleaded fails as a matter of law. Accordingly, in light of the aforementioned reasoning, the court hereby GRANTS the motion to dismiss as to Plaintiffs negligence claim and thus DISMISSES said claim. D. Lack of Good Faith Claim With respect to Plaintiffs’ lack of good faith claim, Paulen argues that said claim fails because assuming there was a contract, he acted according to the express terms of the contract by attempting to obtain a television production deal for the program. (Docket No. at 11.) Plaintiff failed to specifically respond to this argument. (See Docket No. 32,) The resolution of this issue is also relatively simple. In the complaint, Plaintiff alleges that Defendants acted in bad faith in both the formation of the contract and in the execution of their duties under the contract because Paulen made false representations about his experience and qualifications and failed to pitch the program as agreed upon." }, { "docid": "15084439", "title": "", "text": "of a motion to continue is one of the factors we look to in assessing whether the lower court acted within its discretion. Id. at 46-47. Accord United States v. Warshak, — F.3d -, -, 2010 WL 5071766, at *24 (6th Cir. Dec. 14, 2010) (no prejudice resulting from denial of continuance when defendant argued that more time might have revealed exculpatory evidence). Similarly, here: Williams’s phantom record remains missing even today, nearly two years after his trial, and speculation about what assistance it might have rendered to his defense falls hopelessly short of establishing, as he must, a likelihood of prejudice. The short of it is that, based on the record before us, the district court acted well within its discretion in refusing any further delay. B. Motion for Acquittal During trial, Williams moved unsuccessfully for acquittal at the close of the evidence. See Fed.R.Crim.P. 29. On appeal, Williams argues that two witnesses, his former girlfriend Howard and one Ortiz, were “impeached to such a degree that no rational jury could have believed them.” For this reason, and based on other alleged deficiencies of the government’s “various witnesses,” Williams claims that he should have been acquitted on the drug charge. We quickly dispatch this argument. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Id. Instead, “a litigant has an obligation ‘to spell out its arguments squarely and distinctly,’ or else forever hold its peace.” Id. (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988)). See also Harriman v. Hancock County, 627 F.3d 22, 27-30 (1st Cir. 2010) (applying Zannino and holding that underdeveloped arguments on appeal are deemed waived). Williams’s argument here consists of a single three-sentence paragraph. In it, he claims broadly that Ortiz and Howard cannot be believed based on impeachment that" }, { "docid": "20452343", "title": "", "text": "to an equal protection claim that we can find in the record is in the jurisdiction section to Colon’s amended complaint, in which she asserts: “Also, the equal protection clause of the U.S. Constitution is proclaimed.” Colón does not include the claim as a separate cause of action in the complaint; she does not incorporate it into her other causes of action; she makes no factual or legal argument in support of this claim in her amended complaint or other subsequent pleading (or even on this appeal); and she makes no reference to it in her opposition to summary judgment motion. See Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 87-88 (1st Cir.2008) (finding no error where district court did not review a “fleeting and inadequate” claim that plaintiff only raised in her complaint’s introductory paragraph, which she did not raise as a separate cause of action, and to which she pled no supporting facts). In short, Colón makes a one-sentence, legally and factually unsupported, emaciated assertion of an equal protection claim to secure the district court’s federal jurisdiction over her case. We have warned parties before that trial judges are not “mind readers,” and that “[i]f claims are merely insinuated rather than actually articulated,” courts are not required to make determinations on them. McCoy v. Mass. Inst, of Tech., 950 F.2d 13, 22 (1st Cir.1991); see also Harriman v. Hancock Cnty., 627 F.3d 22, 28 (1st Cir.2010) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990))); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988) (a party has a duty “to spell out its arguments squarely and distinctly ... [instead of being] allowed to defeat the system by seeding the record with mysterious references to unpled claims”). Moreover, even if Colon’s one sentence claim, bereft of any legal citation or factual analysis, could be deemed to have" }, { "docid": "23451269", "title": "", "text": "9. Did the district court err by dismissing Willhauck[ ]’s constitutional challenge to [Mass.R.Crim.P.] 37(b)(2)? Brief for Appellants at 1. Besides noting the issues that Willhauck has raised on appeal, we also identify the issues that he has chosen not to appeal. We do so in order to comply with our settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.... It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.... “Judges are not expected to be mindread-ers. Consequently, a litigant has an obligation ‘to spell out its arguments squarely and distinctly,’ or else forever hold its peace.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990) (citations omitted). See also Ramos v. Roche Products, Inc., 936 F.2d 43, 51 (1st Cir.), cert. denied, — U.S. -, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991) (brief must contain full statement of issues presented and accompanying arguments); Continental Casualty Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 375 (1st Cir.1991) (mere mention, without supporting argumentation, that party seeks review of a district court’s ruling insufficient to raise issue on appeal); Brown v. Trustees of Boston University, 891 F.2d 337, 353 (1st Cir.1989) (same). As a threshold matter, then, we state the rulings and findings that Willhauck has waived through his failure to present them in his brief. Willhauck has waived appeal of the jury’s August 1987 verdict in favor of MDC officers Halpin and Perry on the issue of liability for the alleged beating. He has waived appeal of the district court’s directed verdicts at the close of plaintiff’s evidence in favor of the Milton and Ded-ham officers involved in the car chase— Officers Moriarty, Galvin, Dietenhofer and Tapsel. He has waived appeal of the October 1985 dismissals of the Milton and MDC officers involved in the alleged nighttime intrusion — Officers Rogers, Callender, Huf-fam and Mills. In addition, Willhauck has waived appeal of the" }, { "docid": "15084440", "title": "", "text": "For this reason, and based on other alleged deficiencies of the government’s “various witnesses,” Williams claims that he should have been acquitted on the drug charge. We quickly dispatch this argument. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Id. Instead, “a litigant has an obligation ‘to spell out its arguments squarely and distinctly,’ or else forever hold its peace.” Id. (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988)). See also Harriman v. Hancock County, 627 F.3d 22, 27-30 (1st Cir. 2010) (applying Zannino and holding that underdeveloped arguments on appeal are deemed waived). Williams’s argument here consists of a single three-sentence paragraph. In it, he claims broadly that Ortiz and Howard cannot be believed based on impeachment that he does not describe in any meaningful detail. Likewise, he claims that testimony from other witnesses, none of whom he identifies, cannot support his conviction based on inconsistencies and other issues that he too does not adequately describe. Because his skeletal argument is plainly insufficient, we deem it waived. C. Sentencing Williams challenges his sentence on several grounds. We examine each in turn, with reference to the 2008 U.S. Sentencing Guidelines Manual (“U.S.S.G.”). See United States v. Roa-Medina, 607 F.3d 255, 257 (1st Cir.2010) (examining sentencing challenge based on guidelines in effect at time of sentence). First, Williams argues that the district court miscalculated the drug quantity attributable to him for purposes of establishing his base offense level. According to Williams, Hebert testified that he purchased from Williams anywhere from 3.5 to fourteen grams of crack per week (and, on one occasion, forty grams) over a two-month period. By Williams’s estimate, that totals sixty-eight grams. But the revised presentence investigation report (PSI Report), which the district court adopted, calculated drug quantity based on Hebert’s purchases" }, { "docid": "18042160", "title": "", "text": "to promote the program in anyway.” (Id. ¶ 77.) This contention is inexorably clear upon reviewing Plaintiffs response to Paulen’s motion to dismiss because he solely argues that Paulen breached the duty under the purported contract between them. (See Docket No. 32 at 6-7.) As such, the resolution of this issue is simple. “Article 1802 negligence applies in cases where the party causing the injury had no prior obligation or duty to the party suffering the injury.” Nieves Domenech v. Dymax Corp., 952 F.Supp. 57, 65 (D.P.R.1996) (citing Ramos Lozada v. Orientalist Rattan Furniture, Inc., 130 P.R. Dec. 712, 1992 WL 755597 (1992)). As such, Article 1802 generally does not apply in the context of commercial transactions. Isla Nena Air Servs., Inc. v. Cessna Aircraft Co., 449 F.3d 85, 88 (1st Cir. 2006). However, “[a] plaintiff may bring a negligence claim based on a contractual relationship when there is both an alleged breach of contract and an alleged breach of the general duty not to negligently cause injury.” Nieves-Domenech, 952 F.Supp. at 66 (citing Ramos Lozada, 130 P.R. Dec. 712). But, this general duty not to act negligently must arise out of conditions separate from the parties’ contract. Id. Therefore, if Plaintiffs damages arise exclusively from Defendants’ alleged breach of contract, Plaintiff does not have a separate cause of action for negligence. Id. And, as noted above, Plaintiff does exactly that: he rests his negligence claim upon Paulen’s alleged contractual duty to promote his program. Furthermore, although the complaint states that “Defendants were, at the very least, negligent for, among other reasons, failing to promote the program in anyway,” (Docket No. 11-1 ¶77), “[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). As such, the court will not ponder as to whether Plaintiff sought to impose another duty upon Defendants. “Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell" }, { "docid": "8105049", "title": "", "text": "from said acts. El Mundo, Inc., 346 F.Supp. at 114. Assuming that the plaintiff has in effect plead a conspiracy with a purpose and that an overt act exists, a § 1985(3) claim requires the complaint be motivated by a class-based, invidiously discriminatory animus behind the conspirators action thus plaintiff must belong to a cognizable, well-defined class. Plaintiff affirms that she belongs to a class based on her status as her brother’s sister, which according to plaintiff, is as much permanent and immutable as her gender, race, age, and ethnic origin. Firstly, the opposition to the Motion to Dismiss is devoid of any legal authority supporting the existence of a class composed by the mere fact of being a sibling. Moreover, it is the law in this Circuit that legal arguments alluded to merely in a perfunctory manner but unaccompanied by a developed argumentation, are deemed abandoned. U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir.1990); Morales Feliciano v. Rullan, 378 F.3d 42, 49 n. 4 (1st Cir.2004). Further, “it is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones”. Id. After all, “[J]udges are not expected to be mindreaders. Consequently, a litigant has an obligation ‘to spell out its arguments square and distinctly,’ or else forever hold its peace”. Id., citing Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988) (quoting Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988)). Precisely, this is what plaintiff has attempted in its presentation. Plaintiff has presented an argument moving the Court to accept the existence of a class based on her status as her brother’s sister without providing the necessary skeletal legal backbone in support thereof. The Court shall not develop an argument as to the applicability of class when plaintiff failed in developing an argument of its applicability. U.S. v. Zannino, 895 F.2d at 17. Consequently, plaintiffs arguments as to the existence of said class is deemed abandoned. Hence the Court deems" }, { "docid": "7854254", "title": "", "text": "are present in many innocent people, do not necessarily reflect actual guilt. In your consideration of this type of evidence you should consider that there may be reasons for defendant’s actions that are fully consistent with innocence. It is up to you as members of the jury to determine whether or not evidence of intentional flight or intentional hiding or evasion shows a consciousness of guilt and the weight or significance to be attached to any such evidence. Tr. 10/29/96 at 1089-90. Although the model jury instruction merely uses the phrase “intentional flight,” the district court employed the additional language “intentional flight or intentional hiding or evasion” to reflect that Candelaria-Silva may have fled prior to the return of the indictment and that his continued absence after he was aware of the charges against him would be a potential basis to infer consciousness of guilt. Despite Candelaria-Silva’s objection, the instruction was properly tailored to the facts of this case. VII. Judicial Bias Candelaria-Silva contends that the “district court overstepped its bounds and assumed the role of an advocate for the prosecution, constantly interjecting in a manner that indicated annoyance and bias against [ ] counsel, preventing appellant from having a fair trial.” Candelaria-Silva Br. at 50. He then argues that “space limitations do not allow,” id., for a complete listing of all such instances of inappropriate judicial con duct. On those occasions in which the lack of paper or failure to recount one instance of judicial bias prevents counsel from arguing his point, our words in United States v. Zannino, 895 F.2d 1 (1st Cir.1990), are most appropriate: [Ijssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.... Judges are not expected to be mindread-ers. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace. Id. at 17 (internal" }, { "docid": "197142", "title": "", "text": "a dispensable nondiverse party). . Formerly 49 U.S.C. § 11707(a)(1). . Despite peppering their briefs with references to allegedly \"intentional” acts committed by the Defendants, Plaintiffs' Second Amended Complaint is devoid of any intentional claims. As such, this writer will not address whether Defendants’ allegedly intentional conduct falls outside the preemptive scope of the Carmack Amendment. . In their opposition briefs, Plaintiffs state that the harms alleged \"are harms to the Yorks personally as a consequence of the defendants’ delivery of the moldy goods into the Yorks’ home,” and that their claims \"are based on defendants’ actions in delivering the mold damaged goods to the York residence after they knew the goods were damaged.” (Emphasis added.) These assertions are at odds with Plaintiffs’ argument that the harms alleged stem from conduct separate and distinct from the transportation process. . Despite asserting negligent brokerage claims against both Defendants Day and Williams, and a negligent bailee claim against Defendant Andrews, Plaintiffs fail to provide support for or develop any legal argument on these points. “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Massey v. Stanley-Bostitch, Inc., 255 F.Supp.2d 7, 16 (D.R.I.2003). Plainly, \" [j]udges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly or else forever hold its peace.” Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988) (internal quotation marks and citation omitted). Here, Plaintiffs failed in their obligation to research, develop, and assert any argument as to the negligent brokerage and bailee claims, and it is not this Court’s role to “cast about blindly” for a basis upon which to deny Defendants’ summary judgment motion as to these claims. See Hadaja, Inc. v. Evans, 263 F.Supp.2d 346, 353 (D.R.I.2003). . In its papers, Defendant Day has agreed to the entry of Final Judgment against it in the amount of $15,000 on the Carmack Amendment claims. . While Plaintiffs did not challenge Defendant" }, { "docid": "11138866", "title": "", "text": "place of business in South Kingstown, Rhode Island. Plaintiff Gregory N. Duckworth is the owner of all of the shares of F/V Reaper, Inc.’s stock and captain of the F/V Reaper vessel. . Plaintiff Canyon Industries, Inc. joined this action on December 6, 1999 when the plaintiffs filed an amended complaint for injunc-tive and declaratory relief. . This Court has jurisdiction to review these rules pursuant to 16 U.S.C. § 1855(f), 5 U.S.C. § 701 et seq., and 5 U.S.C. § 611. . The Fishery Management Plan established a system for the issuance of permits authorizing the fishing of monkfish to address market concerns regarding the over-fishing of monk-fish. See 50 C.F.R. § 648.1 et seq. (1999). . Several Counts in the various Complaints have not been briefed at all in the plaintiffs' consolidated memorandum of law. For all of these, I recommend that the court grant summary judgment to the defendants. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones. As we recently said in a closely analogous context: 'Judges are not expected to be mindreaders. Consequently, a litigant has an obligation 'to spell out its arguments squarely and distinctly' or forever hold its peace.' ”) (citing Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988) (citing Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988))). . “The terms 'overfishing' and 'overfished' mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.” 16 U.S.C. § 1802(29). Maximum Sustainable Yield is in turn defined as the “largest long term average catch or yield that can be taken from a stock under prevailing ecological and environmental conditions.” 50 C.F.R. § 600.310(c)(l)(i). . The C.F.R. states the following regarding Category A permits: (i) Limited access monkfish permits (effective November 8, 1999). (A)Eligibility. A vessel may" }, { "docid": "15559958", "title": "", "text": "the facts in any meaningful way. Few principles are more a part of the warp and woof of appellate practice than the principle that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). We have parroted this principle with a regularity bordering on the monotonous. See, e.g., Fradera v. Mun’y of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006); Cytyc Corp. v. DEKA Prods., Ltd. P’ship, 439 F.3d 27, 32 (1st Cir.2006); Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 687 (1st Cir.1993). These reiterations are not meant to be regarded as empty words: our adherence to this principle imposes on litigants an unflagging obligation to spell out their contentions “squarely and distinctly, or else forever hold [their] peace.” Zannino, 895 F.2d at 17. “[I]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.” Id. In the case at hand, the defendants’ challenge to the compensatory damage awards flagrantly violates this bedrock principle. In the “Argument” section of their brief, the defendants posit that “even if the Court does not grant a new trial, the Court should at least reduce the amount of the damages awarded by the jury.” Appellants’ Br. at 14. They then cite general language from a few cases addressing the court’s authority to order a new trial if a verdict is unreasonably high. See id. After alluding to this case law, the defendants baldly state, in a completely conclusory fashion, that “after reviewing the evidence and testimony presented during the trial [it] is fundamental that the Court review the amount of damages awarded by the jury.” Id. at 16. That is their entire argument on this issue. They at no point attempt to apply the case law to the facts adduced at trial; they at no point marshal the evidence as to the injuries and damages sustained by either Casillas or López; and they at no point discuss, let alone analyze, the" } ]

[ { "docid": "16980828", "title": "", "text": "strict responsibility misrepresentation; (10) contribution/indemnifieation; and (11) breach of contract. This Court may exercise supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. The Court may also decline to exercise supplemental jurisdiction over a claim if “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c); see also, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Insofar as “pendant jurisdiction is a doctrine of discretion, not of plaintiffs right,” Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, McGraw-Edison urges the Court to decline supplemental jurisdiction. It asserts that Raytheon’s state law claims substantially predominate over its federal claims, citing the breadth of evidence needed, the introduction of a jury and possible juror confusion, and the frustration of the expeditious resolution of the federal claims. Some courts find that such considerations weigh strongly against exercising supplemental jurisdiction, while others find these considerations unpersuasive. Compare, e.g., Town of Jaffrey v. Town of Fitzwilliam, 846 F.Supp. 3 (D.N.H.1994) (state claims predominate); United States v. Colorado & Eastern R.B., 832 F.Supp. 304 (D.Colo.1993) (same); Commerce Holding Co. v. Buck-stone, 749 F.Supp. 441, (E.D.NY.1990) (same), with Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1248-49 (D.Conn.1992) (quoting State of N.Y. v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir. 1985)) (“Our Court of Appeals favors the exercise of pendent jurisdiction ... [and has] explicitly held that ‘it is irrelevant that the scope of relief under state law differs from that under federal law.’ ”). This District has noted that the “exercise of pendent jurisdiction in CERCLA claims is favored.” INX Int’l Ink Co. v. Delphi Energy & Engine Management Sys., 943 F.Supp. 993 (E.D.Wis.1996) (Warren, J., presiding). In keeping with the latter view, the Court exercises supplemental jurisdiction over" } ]

[ { "docid": "9553975", "title": "", "text": "and which would require a different showing of proof. Finally, defendant contends that a plaintiff would not ordinarily be expected to try an ADEA claim and tort claim together in one judicial proceeding. Plaintiff counters that the jury would not be confused. Moreover, although the burdens of proof under both laws have been labeled as different, they are similar. Also, the same evidence would be used in both cases, and the Law 100 remedy would merely supplement the remedies available under the ADEA, thereby furthering the congressional purpose of prohibiting discrimination in employment based on age. Plaintiff finally argues that in the interests of fairness and judicial economy, the Court should exercise pendent jurisdiction. We agree with the defendant and dismiss the state law claim. The doctrine of pendent jurisdiction permits a federal court to hear a claim having no independent basis for federal jurisdiction when a federal claim has sufficient substance to confer subject matter jurisdiction, and the federal claim and the non-federal claim derive from a “common nucleus of operative facts.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, -, 108 S.Ct. 614, 618, 98 L.Ed.2d 720, 729 (1988); United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). If considered without regard to the federal or state nature of the claim, plaintiffs claims are such that he would ordinarily expect them to be tried in one judicial proceeding, the federal court has power to hear both claims, assuming the sufficiency of the federal issue. Camegie-Mellon University, 484 U.S. at -, 108 S.Ct. at 618, 98 L.Ed.2d at 729; Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1531 (11th Cir.1980). Once it determines it can exercise pendent jurisdiction, a federal court is not required to exercise such jurisdiction. The doctrine is one of judicial discretion, not of plaintiffs right. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 427 (11th Cir.1984). When determining whether to exercise pendent jurisdiction, a court must consider several factors. First, the court must decide" }, { "docid": "21169815", "title": "", "text": "the courts. See Brzychnalski, 35 F.Supp.2d at 353; Torres v. Gristede’s Operating Corp. 2006 WL 2819730, *17, 2006 U.S. LEXIS 74039, *56 (S.D.N.Y. Sept. 28, 2006) New York law allows plaintiffs to waive their liquidated damages claim for overtime wage class actions “as long as putative class members are given the opportunity to opt out of the class in order to pursue their own liquidated damages claims.” Mascol v. E & L Transportation, Inc., 2005 WL 1541045, at *8, 2005 U.S. Dist. LEXIS 32634, at *26-27 (E.D.N.Y. June 29, 2005); see also Ansoumana, 201 F.R.D. at 95. The court sees no problem with plaintiffs waiving their liquidated damages as long as notice is provided to the Rule 23 class instructing individuals how to opt-out in order to preserve their claims for liquidated damages. 2. The Exercise of Supplemental Jurisdiction over the Rule 23 Class Defendants argue that the simultaneous creation of an FLSA representative action and a Rule 23 New York Labor Law class is an impediment to the exercise of supplemental jurisdiction over the New York Labor Law Claims. Defendants’ contention is without merit. A court may properly assume supplemental jurisdiction over a state claim when the state and federal claims “derive from a common nucleus of operative fact,” such that the parties “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). In addition, a decision to exercise jurisdiction should consider whether “judicial economy, convenience and fairness to litigants” favor hearing the state and federal claims together. Id. at 726, 86 S.Ct. 1130. The Second Circuit has noted, “A federal court’s exercise of pendent jurisdiction over plaintiffs state law claims, while not automatic, is a favored and normal course of action,” Promisel v. First American Artificial Flowers, 943 F.2d 251, 254 (2d Cir.1991). In the present case, the federal and state law claims unquestionably derive from a common nucleus of operative fact and warrant the exercise of supplemental jurisdiction. The federal and state wage and hour claims are essentially the" }, { "docid": "3939448", "title": "", "text": "could award OnePoint damages totaling more than $75,000 should it believe that $66,000 was stolen by the appellees. One-Point has thus met its burden of establishing that its claim under § 604.14 meets the jurisdictional threshold. Because OnePoint has established diversity jurisdiction over its § 604.14 claim, the district court had original jurisdiction over that claim. 28 U.S.C. § 1332 (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds ... $75,000 ... and is between citizens of different States.”). As a result, the district court has supplemental jurisdiction over all of OnePoint’s other claims against Borchert and Catuzzi that are “so related to” the § 604.14 claim “that they form part of the same case or controversy under Article III of the United States Constitution,” even if those claims would not meet the requirements of federal jurisdiction on their own. 18 U.S.C. § 1367(a). “Claims within the action are part of the same case or controversy if they ‘derive from a common nucleus of operative fact.’ ” Myers v. Richland County, 429 F.3d 740, 746 (8th Cir.2005) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). A plaintiffs claims derive from a common nucleus of operative fact if the “claims are such that he would ordinarily be expected to try them all in one judicial proceeding.” Gibbs, 383 U.S. at 725, 86 S.Ct. 1130. OnePoint’s claims against Borchert and Catuzzi all arose from the same set of facts and would ordinarily be expected to be tried together. Consequently, the district court has supplemental jurisdiction over all of One-Point’s claims, unless the claims were properly dismissed for failure to state a claim. B. Minnesota Statute § 609.52 The district court dismissed One-Point’s § 609.52 claim for failure to state a claim upon which relief could be granted. Section 609.52, entitled “Theft,” is a criminal statute without any provision for civil liability and therefore is inapplicable for purposes of enhancing civil damages. We affirm the dismissal. C. Minnesota Statute § 609.53 The district court also dismissed" }, { "docid": "6842063", "title": "", "text": "form, part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve joinder or intervention of additional parties. 28 U.S.C. § 1367(a) (emphasis added). Whether a court has supplemental jurisdiction is determined by the following test: “ ‘a federal court has jurisdiction over an entire action, including state-law claims, wherever the federal-law and state law claims in the case “derive from a common nucleus of operative fact” and are “such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.” ’ ” Kansas Public Employees Retirement Sys. v. Reimer & Roger, Assoc., Inc., 77 F.3d 1063, 1067 (8th Cir.1996) (quoting Camegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) in turn quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966)); see Cossette v. Minnesota Power & Light, 188 F.3d 964, 973 (8th Cir.1999) (“A district court may exercise supplemental jurisdiction over state law claims that arise from the same nucleus of operative fact as the plaintiffs federal claims and when the plaintiff would ordinarily be expected to try all the claims in one judicial proceeding.”) (citing Kansas Public Employees Retirement Sys.); Meyers v. Trinity Med. Ctr., 983 F.2d 905, 907 (8th Cir. 1993); Alumax Mill Prods., Inc. v. Congress Fin. Corp., 912 F.2d 996, 1005 (8th Cir.1990); Appelbaum v. Ceres Land Co., 687 F.2d 261, 262-63 (8th Cir.1982); Wristr-Rocket Mfg. Co., Inc. v. Saunders Archery Co., 578 F.2d 727, 734-35 (8th Cir.1978). In sum, supplemental jurisdiction under subsection (a), is appropriate where the federal-law claims and the state-law claims in the case “derive from a common nucleus of operative fact” and are such that a plaintiff would ordinarily be expected to bring all of the claims in one suit. See Kansas Public Employees Retirement Sys., 77 F.3d at 1067. Once the court has determined supplemental jurisdiction is proper under subsection (a), subsection (c) provides the list of circumstances under which the court can decline to exercise such supplemental" }, { "docid": "1626349", "title": "", "text": "at 823. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), provided the modem formulation of this doctrine of pendent jurisdiction. The issue in Gibbs was whether a claim under the common law of Tennessee could be joined to a claim under the federal Labor Management Relations Act, in a lawsuit against a labor union. The Supreme Court held that because the “state and federal claims [ ] derive from a common nucleus of operative fact ... such that [the plaintiff] would ordinarily be expected to try them all in one judicial proceeding,” pendent jurisdiction could be exercised over the state claim as well as the federal claim. Id. at 725, 86 S.Ct. 1130. Judicial power exists, the Supreme Court held, whenever “the relationship between [the federal law] claim and the state law claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ ” Id. at 725, 86 S.Ct. 1130. Gibbs established a three-part test: the federal claim must confer subject matter jurisdiction, the federal and the state law claims must derive from a common nucleus of operative fact, and the claims must be such that the plaintiff would ordinarily be expected to try them together in one proceeding. But there were limits to the doctrine, based on interpretations of what Congress had intended in conferring jurisdiction on the district courts. Where, for example, Congress provided that certain parties are not subject to suit under federal law except under specified conditions, the conditions cannot be circumvented by joining a related state cause of action. See e.g., Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) (because an individual is unable to sue county under 42 U.S.C. § 1983 for constitutional violations perpetrated by county officials, no federal supplemental jurisdiction exists over related state causes of action against county). Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), presented another example: where, in an action founded on state law, plaintiff sues only one of two" }, { "docid": "22037861", "title": "", "text": "47. Therefore, the district court did not abuse its discretion in granting First Blood and the Greenbergs leave to amend their answer. 3. The Pendent Claims A district court may exercise pendent jurisdiction over state-law claims “whenever the federal-law claims and state-law claims in the case ‘derive from a common nucleus of operative fact’ and are ‘such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.’ ” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). The decision whether to exercise pendent jurisdiction is within the discretion of the district court. Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 563 (2d Cir.), cert. denied, — U.S.-, 111 S.Ct. 2829, 115 L.Ed.2d 998 (1991). In exercising that discretion, a district court is required to “consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdic-tion_” Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. at 619. Although courts adjudicating cases similar to plaintiffs’ have declined to dismiss pendent claims after the federal claims were dismissed, see, e.g., Enercomp, Inc., v. McCorhill Pub., Inc., 873 F.2d 536, 545-46 (2d Cir.1989); Philatelic Found. v. Kaplan, 647 F.Supp. 1344, 1348 (S.D.N.Y.1986), we do not believe Judge Sweet abused his discretion in refusing to exercise pendent jurisdiction over plaintiffs’ state law claims when their federal claims were dismissed before trial. See Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139 (“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”). CONCLUSION The judgment of the district court is affirmed for the foregoing reasons. . Anabasis, Carolco and the defendants added in the amended complaint have been dismissed from the case and are not parties to this appeal. . The Memorandum provides: It is very likely that the" }, { "docid": "23071986", "title": "", "text": "time, by the parties, or by the court sua sponte. See Fed.R.Civ.P. 12(h)(3); Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 72 (2d Cir.1988); Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984). We therefore must consider the issue. A federal court’s exercise of pendent jurisdiction over plaintiff’s state law claims, while not automatic, is a favored and normal course of action. “[I]f, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). A court has the power to exercise pendent jurisdiction over plaintiff’s state claims together with his federal claims if they derive from “a common nucleus of operative fact,” id., and commonly will exercise it if “considerations of judicial economy, convenience and fairness to litigants” weigh in favor of hearing the claims at the same time. United Mine Workers, 383 U.S. at 726, 86 S.Ct. at 1139. The availability of pendent jurisdiction was codified in 1990 at 28 U.S.C. § 1367(a), which states that “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” Promisel’s state law claim under New York Executive Law § 296, which alleges that First American discharged him because of his age, clearly derives from the same nucleus of operative fact as his federal ADEA claim. They both arise from his December 18, 1987, dismissal and replacement by Smith. Yet First American proffers two arguments that Judge Goettel’s decision to exercise pendent jurisdiction should nonetheless be disturbed. First American first argues that 29 U.S.C. § 633(a) prevents a plaintiff from invoking state law in either state or federal court once plaintiff has elected to proceed under the" }, { "docid": "21169816", "title": "", "text": "New York Labor Law Claims. Defendants’ contention is without merit. A court may properly assume supplemental jurisdiction over a state claim when the state and federal claims “derive from a common nucleus of operative fact,” such that the parties “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). In addition, a decision to exercise jurisdiction should consider whether “judicial economy, convenience and fairness to litigants” favor hearing the state and federal claims together. Id. at 726, 86 S.Ct. 1130. The Second Circuit has noted, “A federal court’s exercise of pendent jurisdiction over plaintiffs state law claims, while not automatic, is a favored and normal course of action,” Promisel v. First American Artificial Flowers, 943 F.2d 251, 254 (2d Cir.1991). In the present case, the federal and state law claims unquestionably derive from a common nucleus of operative fact and warrant the exercise of supplemental jurisdiction. The federal and state wage and hour claims are essentially the same and arise out of the same alleged conduct of the defendants. As the Brzychnalski court held in simultaneously certifying an FLSA representative action and a New York Minimum Wage Act Rule 23 class, “The members of both classes performed the same type of work for the same related employers and were deprived of overtime compensation purportedly as the result of the same alleged scheme. There is no reason why the claims should be separately litigated in two different courts.” 35 F.Supp.2d at 354. Nonetheless, defendants argue that the “conflicting purposes and procedures” of the FLSA opt-in requirements and the Rule 23 opt-out requirements render certification of the Rule 23 class inappropriate. Defendants apparently reject the overwhelming authority of cases from this district that have simultaneously certified FLSA and New York Labor Law claims, including, most recently, Torres v. Gristede’s Operating Corp. 2006 WL 2819730, 2006 U.S. LEXIS 74039 (S.D.N.Y. Sept. 28, 2006). See also Ansoumana, 201 F.R.D. 81; Noble, 224 F.R.D. 330, Brzychnalski v. Unesco, Inc., 35 F.Supp.2d 351 (S.D.N.Y.1999); Noble, 224 F.R.D. 330;" }, { "docid": "13748456", "title": "", "text": "jurisdiction that the claims form part of the same case or controversy.” Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir.1998). Moreover, the circuit has held that a discretionary rejection of supplemental jurisdiction is proper “only if founded upon an enumerated category of subsection 1367(c).” Itar-Tass, 140 F.3d at 448 (2d Cir.1998). In order to exercise supplemental jurisdiction, “the federal claims must be substantial and the federal and state claims must ‘derive from a common nucleus of operative fact’ and be such that a plaintiff ‘would ordinarily be expected to try them all in one proceeding.’ ” 55 Motor Ave. Co. v. Liberty Indus. Finishing Corp., 885 F.Supp. 410 (E.D.N.Y.1994) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Based on the jurisdictional statute and prior case law, numerous district courts within this circuit, precisely within the context of environmental law, have recognized their ability to exercise supplemental jurisdiction over pendent state-law claims. See id. (noting the court’s “power to hear the pendent state claims” and exercising discretion to do so); Commerce Holding Co., Inc. v. Buckstone, 749 F.Supp. 441, 446 (E.D.N.Y.1990) (stating that the court possessed power to exercise jurisdiction over pendant state-law claims but declining to do so because of a predominance of state-law issues). At a minimum, then, there is no bar to exercising jurisdiction. The remaining question is whether, in light of this court’s ability to exercise it, it should do so. Claims against both defendants “derive from a common nucleus of operative fact,” Gibbs, 383 U.S. at 725, 86 S.Ct. 1130 (1966), namely, the environmental contamination of the Property. The state law claims, whether arising under contract or tort theories, are relatively straightforward and do not involve exceptionally complicated or difficult questions of law. These issues neither predominate over the federal claims nor appear so difficult or complicated that they ought not be resolved by this court. In this case, exercising jurisdiction appears to avoid bifurcated proceedings and “[n]eedless decisions of state law[, which] should be avoided both as a matter of comity and to" }, { "docid": "23331802", "title": "", "text": "to burgeoning court dockets and argues that it is unfair to “force” pendent claims on the federal courts. We respond to these arguments seriatim. Under the doctrine of pendent jurisdiction, a federal court is empowered to entertain state claims when “[t]he state and federal claims ... derive from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Moreover, when “considered without regard to their state or federal character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then there is power in the federal courts to hear the whole case.” Id. (emphasis in original). The case at bar is exemplary. Here, there was one set of facts alleged in both pleadings, describing a transaction for the sale of F.L.W. Because the Robinson-Patman Act and the law of contracts in the State of Illinois merely provided separate grounds for relief in a single cause of aetion, appellant would ordinarily be expected to bring both remedies together in a single proceeding. It therefore appears that the exercise of pendent jurisdiction would have been appropriate in this case. We fail to discern the unfairness in requiring a plaintiff to join all relevant theories of relief in a single proceeding. The uncertainty over whether a trial judge would exercise pendent jurisdiction does not justify permitting the institution of a multiplicity of proceedings which may have the effect of harassing defendants and wasting judicial resources. If appellant entertained any doubts at the pleading stage, they should have been resolved in favor of joinder. See Federated Department Stores v. Moitie, - U.S. -, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (Blackmun, J., concurring); Woods Exploration and Producing Co. v. Aluminum Company of America, 438 F.2d 1286 (5th Cir. 1971). A dismissal of the claims for relief under federal law in a complaint to which pendent state claims have been joined does not of itself end the litigation. “[I]f it appears that the state issues predominate, whether in terms of proof, of the" }, { "docid": "8941176", "title": "", "text": "639 (1982), quoting Bell v. Hood, 327 U.S. 678, 681-83, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1946). Plaintiff claims that defendants have operated a RICO “enterprise,” Operation Rescue, through a pattern of racketeering activity, including violations of the Hobbs Act, 18 U.S.C. § 1951. The “pattern of racketeering” alleged is the planning and carrying out of trespassory entries and occupations of the Center for the purpose of intimidating the Center, its patients and employees. The gravamen of plaintiff’s complaint is that defendants seek by these occupations to extort from the Center its right and ability to conduct its activities and to extort from the Town its ability to protect the rights of the Center, its patients, and the Town’s citizens. Plaintiff claims injury in the form of overtime expenses, injury to an employee, and interference with ability to provide police, fire and other emergency services to its citizens. There is a basis for pendent jurisdiction. The federal and state claims derive from a “common nucleus of operative fact,” the circumstances of the events at the Center on April 1 and June 17. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 11, 16 L.Ed.2d 218 (1966). They are sufficiently interrelated that plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” Id. The exercise of pendent jurisdiction is discretionary, but a presumption favors exercising jurisdiction where it exists. Miller v. Lovett, 879 F.2d 1066, 1071-72 (2d Cir.1989). Although the court must exercise discretion as to pendent jurisdiction at every stage of the proceedings, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988), on the present record pendent jurisdiction exists and will be exercised over the state law claims. Cf. State of New York v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985) (existence of colorable federal claim authorizes federal court to hear state claims and grant injunction); but see Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139 (where federal claims dismissed before trial, pendent claims ordinarily should be dismissed as well)." }, { "docid": "11086109", "title": "", "text": "Underwriters v. P.F.C. Management Corporation, No. 1:87-CV-273, 1994 U.S.Dist. LEXIS 12958 (W.D.Mich. August 10,1994). The analysis of jurisdiction cannot end here. The plaintiffs were granted leave to amend their complaint and join additional defendants. The City of Milwaukee was added in 1995, as part of the amended complaint. The City of Milwaukee, however, is not third-party defendant, and therefore, the Court’s Decision and Order of August 19, 1996 is inapplicable. In the Court’s Decision and Order dated March 28, 1995, the Court concluded that the plaintiffs amendment adding new parties should relate back “if not to the time of the original complaint, at least to the time that the plaintiffs request to amend was filed.” (Court’s Decision and Order, March 28, 1995 at pgs. 14-15.) Obviously, the Court’s Decision and Order of March 28, 1995, does not solve the presented issue. The original complaint was filed in 1989, before the enactment of Section 1367; plaintiffs request to amend was filed in December, 1991, after the enactment of Section 1367. The Court, therefore, will turn its attention to the underlying principle of Section 1367, pendent jurisdiction. The plaintiffs brought pendent state law claims. The exercise of pendent jurisdiction in CERCLA claims is favored. Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1248 (D.Conn.1992). In Amwana Mills, a landlord was allowed to bring state-law claims pendent to a CERC-LA claim. Id. Similarly, in State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985), the court recognized that federal CERCLA and state nuisance claims “clearly derived from a common nucleus of operative facts and the State would ordinarily be expected- to try them all in one proceeding.” Id. (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). Applying that law here, the court can rightfully exercise jurisdiction over the related state-law claims raised by the plaintiffs. The plaintiffs state-law claims of negligence, nuisance, and property damage relate directly to the same case or controversy of the the federal CERCLA claims. Both the federal and state claims derive from a" }, { "docid": "14090947", "title": "", "text": "all claims in this case would be expected to be tried together. The exercise of supplemental jurisdiction in federal environmental claims, such as RCRA and CERCLA claims, is favored. Green Hills (USA), L.L.C. v. Aaron Streit, Inc., 361 F.Supp.2d 81, 88 (E.D.N.Y.2005); Raytheon Co. v. McGraw-Edison Co., Inc., 979 F.Supp. 858, 866 (E.D.Wis.1997) (citing INX Intern. Ink Co. v. Delphi Energy & Engine Management Systems, 943 F.Supp. 993 (E.D.Wis.1996)). Courts have found that federal environmental and state nuisance claims derive from a common nucleus of operative facts and the plaintiff would ordinarily be expected to try them all in one proceeding. See State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985) (citing Gibbs, 383 U.S. at 728, 86 S.Ct. at 1140). Indeed, all the facts in this case derive from the same nucleus of operative facts, specifically, the operation of a junkyard adjacent to the Parker property, and plaintiff clearly expects to have all claims tried together in federal court. We conclude plaintiffs expectation to resolve all claims together weighs in favor of retaining supplemental jurisdiction over plaintiffs state law claims. Therefore, because the district court had the power to exercise supplemental jurisdiction over plaintiffs state law claims, and because none of the factors enumerated in 28 U.S.C. 1367(c) are persuasively present, we conclude the district court abused its discretion when it dismissed the case for lack of subject-matter jurisdiction. The district court’s order is vacated and it is instructed to hold the new trial on damages as set forth in our earlier decision. IV. CONCLUSION Accordingly, we vacate and reverse the dismissal for lack of subject-matter jurisdiction and remand for a new trial on damages in the district court. We reverse the denial of the motion to show cause as to the solid waste handling permit. We affirm, without prejudice, the denial of the motion to show cause as to the Storm Water Pollution Prevention Plan. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. . This Court reversed only the damage awards as to the state law claims of nuisance, trespass, negligence, negligence per se" }, { "docid": "14090946", "title": "", "text": "the new trial on damages to state court. Plaintiffs argued it would be unfair at this stage of the proceedings to require them to start over in state court. Instead of analyzing why this is not the case, however, the district court explains “having to retry this case in state court must be considered together with the part that [plaintiffs] counsel played in the need to retry the case ... the court charged the jury [in the first trial] as it was requested to do by the plaintiffs.” Since the obligation of ruling on the propriety of jury instructions rests solely with the trial judge, we find this a strange basis for dismissing a case. Furthermore, because plaintiff has prevailed in federal court as to both federal and state law claims, we conclude that fairness to the parties dictates that the district court complete the case by handling the new trial on damages. iv. Whether All Claims Would be Expected to be Tried Together Although not addressed by the district court, we now consider whether all claims in this case would be expected to be tried together. The exercise of supplemental jurisdiction in federal environmental claims, such as RCRA and CERCLA claims, is favored. Green Hills (USA), L.L.C. v. Aaron Streit, Inc., 361 F.Supp.2d 81, 88 (E.D.N.Y.2005); Raytheon Co. v. McGraw-Edison Co., Inc., 979 F.Supp. 858, 866 (E.D.Wis.1997) (citing INX Intern. Ink Co. v. Delphi Energy & Engine Management Systems, 943 F.Supp. 993 (E.D.Wis.1996)). Courts have found that federal environmental and state nuisance claims derive from a common nucleus of operative facts and the plaintiff would ordinarily be expected to try them all in one proceeding. See State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985) (citing Gibbs, 383 U.S. at 728, 86 S.Ct. at 1140). Indeed, all the facts in this case derive from the same nucleus of operative facts, specifically, the operation of a junkyard adjacent to the Parker property, and plaintiff clearly expects to have all claims tried together in federal court. We conclude plaintiffs expectation to resolve all claims together weighs in" }, { "docid": "22799685", "title": "", "text": "3041(a), 126 Cong.Rec. 26,775-76, reprinted in 2 CERCLA Legislative History, supra, at 406-12 — rather than to seek an injunction in federal court — did not give states that authority, even though the National Association of Attorneys General urged Congress to extend the same powers to the states as it gave to the federal government. See 126 Cong.Rec. 26,761-62, reprinted in 2 CERCLA Legislative History, supra, at 307. C. Common Law of Public Nuisance As a preliminary matter, we cannot accept Shore’s suggestion that the district court’s reliance on New York public nuisance law as an alternative basis for the injunction rested on an improper exercise of pendent jurisdiction. The district court had the power to hear the state law claims. The public nuisance claim for abatement and the CERCLA claims clearly “derive from a common nucleus of operative fact” and the State “would ordinarily be expected to try them all in one judicial proceeding.” Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138; accord Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1247 (2d Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980). And we cannot say that the district court abused its discretion in reaching the public nuisance claim. The state law issues do not predominate — particularly if the State’s argument that CERCLA grants injunctive relief is seen as we see it to be colorable — there is no likelihood of confusion; and “interests of judicial economy clearly weighed in favor of trying them together.” Id. See generally 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3567.1 (1984). Moreover, it is irrelevant that the scope of relief under state law differs from that under federal law. See Gibbs, 383 U.S. at 728, 86 S.Ct. at 1140; Rosario, 605 F.2d at 1251. In challenging the decision below, Shore fails to distinguish between a public nuisance and a private nuisance. The former “is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency” and “consists of conduct" }, { "docid": "14090945", "title": "", "text": "on oral argument before this Court. The district court has handed down 18 orders, ruling on more than 40 motions. Clearly, substantial judicial resources have already been committed to the resolution of this case. As such, this case should not be dismissed in the interest of judicial economy. ii. Convenience The district court also found that convenience to the parties would favor dismissal given that the parties have to travel from Newton County to Atlanta to try the case in federal court. However, the distance from the property in question to the federal courthouse in Atlanta is a mere 36 miles. J. Wayne Maddox and Jason Maddox are the only witnesses listed by the defendant, and plaintiffs are prepared to have their witnesses endure the trek to Atlanta. Accordingly we conclude any inconvenience would be minor and would not rise to the level of “exceptional reasons or compelling circumstances” described in 28 U.S.C. § 1367(c)(4). Hi. Fairness to the Parties The district court also found that fairness to the parties would be served by dismissing the new trial on damages to state court. Plaintiffs argued it would be unfair at this stage of the proceedings to require them to start over in state court. Instead of analyzing why this is not the case, however, the district court explains “having to retry this case in state court must be considered together with the part that [plaintiffs] counsel played in the need to retry the case ... the court charged the jury [in the first trial] as it was requested to do by the plaintiffs.” Since the obligation of ruling on the propriety of jury instructions rests solely with the trial judge, we find this a strange basis for dismissing a case. Furthermore, because plaintiff has prevailed in federal court as to both federal and state law claims, we conclude that fairness to the parties dictates that the district court complete the case by handling the new trial on damages. iv. Whether All Claims Would be Expected to be Tried Together Although not addressed by the district court, we now consider whether" }, { "docid": "14282755", "title": "", "text": "related to claims in the action with such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. The court should exercise supplemental jurisdiction over the state law claims against defendant in this case because the state law claims and CERCLA claims clearly derive from a common nucleus of operative fact. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). However, defendant contends that the court should decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) (“section 1367(c)”). Defendant relies upon section 1367(c)(1) and (2), arguing that the court should decline to exercise supplemental jurisdiction because the state law claims raise novel or complex issues of state law and substantially predominate over the federal claims. Defendant’s Memorandum at 27-28. Defendant also suggests that the exercise of supplemental jurisdiction is disfavored, id. at 27, and that “the case law evinces a highly skeptical attitude toward attempts to append state claims to CERCLA actions,” id.; see also id. at 30-35. I disagree. Contrary to defendant’s position, our Court of Appeals favors the exercise of pendent jurisdiction. See Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir.1991) (“A federal court’s exercise of pendent jurisdiction over plaintiff’s state law claims, while not automatic, is a favored and normal course of action.”), cert. denied, — U.S. -, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992). Moreover, our Court of Appeals has specifically authorized the exercise of pendent jurisdiction over state law claims, including claims for common law and statutory nuisance, which were pendent to a CERCLA claim. Shore Realty, 759 F.2d at 1050 (“The public nuisance claim for abatement and the CERCLA claims clearly ‘derive from a common nucleus of operative fact’ and the State ‘would ordinarily be expected to try them all ■ in one judicial proceeding.’ ”). In addition, the state law claims in this case do not raise novel or complex issues of state" }, { "docid": "1980852", "title": "", "text": "315(b) and (c) establish an implied private right of action, this Court has original jurisdiction over Plaintiffs’ claims under those sections. B. Supplemental Jurisdiction Over State Law Claims Federal district courts “have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. ...” 28 U.S.C. § 1367(a). The exercise of supplemental jurisdiction “is a favored and normal course of action.” Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir.1991). Claims form part of the same case or controversy when - they “ ‘derive from a common nucleus of operative fact’ and are such that one would ordinarily expect them to be tried in one judicial proceeding.” People ex rel. Abrams v. Terry, 45 F.3d 17, 23 n. 7 (2d Cir.1995) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). The exercise of supplemental jurisdiction is appropriate when “the facts underlying the federal and state claims substantially overlap ... or where the presentation of [the] federal claim necessarily [brings] the facts underlying the state claim before the court.” Blackrock Balanced Capital Portfolio v. HSBC Bank USA, Nat. Ass’n, 95 F.Supp.3d 703, 708 (S.D.N.Y.2015) (alterations in original) (quoting Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 704 (2d Cir.2000)). In determining whether a district court may exercise supplemental jurisdiction, “the key question is whether the parties would ordinarily be expected to try all of those claims in one judicial proceeding given the common threads running through those claims.” Id. After determining that the exercise of supplemental jurisdiction is appropriate under section 1367(a), a district court must determine whether it should decline to exercise that jurisdiction for one of the reasons enumerated in section 1367(c). See 28 U.S.C. § 1367(c). “Where section 1367(a) is satisfied, ‘the discretion to decline supplemental jurisdiction is available only if founded upon an enumerated category of subsection 1367(c).’ ” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir.2011) (quoting" }, { "docid": "11086110", "title": "", "text": "attention to the underlying principle of Section 1367, pendent jurisdiction. The plaintiffs brought pendent state law claims. The exercise of pendent jurisdiction in CERCLA claims is favored. Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1248 (D.Conn.1992). In Amwana Mills, a landlord was allowed to bring state-law claims pendent to a CERC-LA claim. Id. Similarly, in State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985), the court recognized that federal CERCLA and state nuisance claims “clearly derived from a common nucleus of operative facts and the State would ordinarily be expected- to try them all in one proceeding.” Id. (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). Applying that law here, the court can rightfully exercise jurisdiction over the related state-law claims raised by the plaintiffs. The plaintiffs state-law claims of negligence, nuisance, and property damage relate directly to the same case or controversy of the the federal CERCLA claims. Both the federal and state claims derive from a common nucleus of operative fact, and therefore, should be tried in the same proceeding. - In addition, the state-law claims are neither so novel nor so complex that pendent jurisdiction need be declined. Therefore, applying the concept of common law pendent jurisdiction, the Court has jurisdiction over the plaintiffs state-law claims. The Wisconsin Supreme Court has noted that subject matter jurisdiction is conferred by the State Constitution. Figgs v. City of Milwaukee, 121 Wis.2d 44, 51, 357 N.W.2d 548, 552 (1984). The Court ruled that statutory conditions or conditions precedent have nothing to do with the subject matter jurisdiction of the circuit court. Id. Similarly, the Court here has jurisdiction conferred by a combination of the power of the Constitution of the State of Wisconsin and the principle of pendent jurisdiction, which gives this Court the power to decide the related state-law claims. B. State Law Must be Used to Determine Whether the Fourth, Fiñh and Sixth Claims Against the City of Milwaukee Ought to be Dismissed. Even though the Court has subject matter jurisdiction" }, { "docid": "23195041", "title": "", "text": "for a constructive trust, to quiet title, an accounting, and subrogation merely set forth different forms of relief for the same underlying wrongs. The Republic’s strategy of bringing suit in a number of other jurisdictions is not decisive of the question whether the claims are such that they would ordinarily be tried in one judicial proceeding. The present location of the sought-for funds in banks in various countries is not determinative as to the underlying wrongs alleged in the complaint. The claims brought in this suit would ordinarily be tried in a single case. In both the RICO and non-RICO claims, the Republic alleges that the Marcoses converted public funds while in office. The district court concluded: This Court has pendent jurisdiction over plaintiff’s other claims under state and foreign law in that such claims arise from a common nucleus of operative fact and are so intertwined with other matters pending before the court as to make the exercise of such jurisdiction over these claims appropriate. The district court was correct in asserting pendent jurisdiction over these claims. They derive from “a common nucleus of operative fact” and are such that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The power of a federal court to decide pendent claims is “wide-ranging.” See Carnegie-Mellon Univ. v. Cohill, — U.S. -, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988). The exercise of the power is discretionary but ordinarily the power if it exists is exercised; only exceptionally is the power not employed. See C. Wright, A. Miller & E. Cooper 13B Federal Practice and Procedure § 3567.1 (1984 and 1988 Supp.). The common nucleus of operative facts that binds the RICO and non-RICO claims together is pleaded in paragraph 12, which is incorporated by reference into each claim for relief. To prove the predicates for RICO that allegedly occurred in this country, the Republic will have to prove theft, the acceptance of bribes, extortion, conspiracy, and similar acts in" } ]

[ { "docid": "18595747", "title": "", "text": "appeals. But even under the new provision, “final” does not mean the same thing in bankruptcy as in other federal cases. A proceeding to establish a claim against a bankrupt estate is final for purposes of appeal when it is over and done with, even though the bankruptcy goes on. Hence if the district court had affirmed the bankruptcy judge’s disallowance of the banks’ claims, the affirmance would have been a final decision appealable to us. But the district court did not affirm; it reversed and remanded for further proceedings to figure out not only how much money the banks were entitled to but how much each of them would get from the remaining, and insufficient, assets of the estate. Although a district judge’s decision remanding a case to a bankruptcy judge normally is not final for purposes of appeal, it is final for those purposes if all that remains to do on remand is a purely mechanical, computational, or in short “ministerial” task, whose performance is unlikely either to generate a new appeal or to affect the issue that the disappointed party wants to raise on appeal from the order of remand. Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc., supra, 758 F.2d at 1250; Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir.1985). At the other extreme, an order upholding liability but leaving damages for subsequent determination is not a final order. See, e.g., Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976). Too much is left to do in the trial court (here the bankruptcy court). The likelihood that the proceedings on remand will moot, or at least alter, the issues that would be raised on an appeal from the liability determination, or will raise new issues for appeal and thus lead to multiple appeals if the order on liability is appeala-ble, is too great to make an immediate appeal efficient. Although there is a sense in which the district court’s order is “final” in that court, we rejected that sense in Riggsby and in Firestone. A" } ]

[ { "docid": "17929915", "title": "", "text": "D(3)(b). The district court would then review the findings, conclusions and proposed orders de novo and enter the appropriate orders. § E(2). A case is “related” to a bankruptcy when the dispute “affects the amount of property for distribution [i.e., the debtor’s estate] or the allocation of property among creditors.” In re Xonics, Inc., 813 F.2d 127, 131 (7th Cir.1987); see also Diamond Mortg. Corp. of Illinois v. Sugar, 913 F.2d 1233, 1239 (7th Cir.1990) (suit is related if it has direct and substantial impact on asset pool available for distribution to creditors), cert. denied, — U.S. -, 111 S.Ct. 968, 112 L.Ed.2d 1054 (1991). Considering that the cemetery was the principal asset of Memorial Estates and that the district court’s order of foreclosure and sale of the property provided that Memorial Estates was liable to the Bank for any deficiency after the sale and that Memorial Estates would be entitled to any surplus, it is clear that the foreclosure would have affected Memorial Estates’ bankruptcy estate and that the proceeding was therefore “related.\" Under the Emergency Rule, the bankruptcy court had jurisdiction to hear the “related” foreclosure proceeding and submit findings and conclusions to the district court and the district court had jurisdiction to review those findings and conclusions de novo and enter a final order. Cemco also appeals several orders of the district court regarding the rights to the unused burial plots. However, those appeals are moot because the Bank sold the cemetery to a bona fide purchaser during the pendency of this appeal. It is well settled that “ ‘[i]f an event occurs while an appeal is pending that renders it impossible for an appellate court to grant any relief or renders a decision unnecessary, the appeal will be dismissed as moot.’ ” Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1264 (7th Cir.1986) (quoting Fink v. Continental Foundry & Machinery Co., 240 F.2d 369, 374 (7th Cir.), cert. denied, 354 U.S. 938, 77 S.Ct. 1401, 1 L.Ed.2d 1538 (1957)). Cemco unsuccessfully sought a stay of the enforcement of the district court’s order of foreclosure and" }, { "docid": "13915148", "title": "", "text": "Steel Corp., 784 F.2d 947 (9th Cir.1986), the Ninth Circuit Court of Appeals recognized that 29 U.S.C. § 1344(d)(1)(C), which allows distribution of excess funds to the employer on termination, is an exception to the otherwise rigid rule that plan assets must be held for the exclusive benefit of plan participants. Id. at 951. Further, it identifies these funds as a “reversion.” Id. In Schuck the court was not required to address whether, in fact, the employer had a property interest created by the terms of the plan and trust and, if so, what the nature of that interest was. This court believes that at least by the time of the execution of the Plan amendment, on February 10, 1977, retroactive to April 1, 1976, McGrew held a property interest in the assets of the Plan and Trust. Further, it believes the form of that interest is a reversion. At common law reversions were created by operation of law. If the owner of an estate granted something less than a fee simple that interest not granted remained in the grantor and was a property interest known in the law of estates as a reversion. Although it is a future estate, (the right of possession and enjoyment being deferred) a reversion is a present, vested estate. Reversions may exist in personalty. They are descendible, devisable, alienable and assignable. Am.Jur.2d Estates §§ 171, 172 and 173 (1966) (reprinted from 28 Am.Jur.2d.) A reversion is distinguished from a possibility of a reverter. The latter is also a future interest which remains in the grant- or after he has created a third party pos-sessory estate. The possibility of reverter is not a present vested estate but only the possibility of having an estate at a future time. Estates § 183. Although such possibility of reverter is descendible it is questionable whether it is alienable. Estates § 184. The easiest way to distinguish between a reversion and a possibility of a reverter is to identify the nature of the prior possesso-ry estate created by the grantor. The re-versioner has granted an estate less than fee" }, { "docid": "23448585", "title": "", "text": "award of sanctions is affirmed. B. The debtor did not meet his burden of showing that he should be permitted to withdraw funds for personal use from the bankruptcy estate or that the estate would be adequately protected were he allowed to withdraw monies from his pension plan pri- or to a ruling upon an objection to a claimed exemption and outside any plan of reorganization. Accordingly, the bankruptcy court’s order denying debtor’s motion for use of estate property is affirmed. . Mr. Walter and Mrs. Walter had filed a petition for dissolution of marriage about a year before each of them filed separate Chapter 11 petitions. As of April 11, 1986, they were still legally married, but were living separately and apart. Each of them listed approximately $663,-000 as his/her respective community share of the pension plan on his/her Schedule B-4 (Property Claimed as Exempt). . Debtors were given 48 hours telephone notice of the hearing, which, under California procedures, is called an \"ex parte\" hearing. The moving papers were served on the debtors less than 24 hours before the hearing. . The debtor appeals from an interlocutory order. See In re Mason, 709 F.2d 1313 (9th Cir.1983). Thus, in order for the appeal to proceed, the Bankruptcy Appellate Panel must grant leave to appeal. See 28 U.S.C. § 158(a)(c); B.R. 8001(b). Neither party sought leave to appeal or otherwise raised this issue, but because it affects our jurisdiction, we raise it on our own motion. We find that the denial of the debtor’s motion for use of estate property merits immediate appellate review, since it determines and affects the debtor’s substantive rights and would cause irreparable harm if the debtor had to wait until the bankruptcy court decided this matter. See In re 405 North Bedford Drive Corp., 778 F.2d 1374 (9th Cir.1985). . No trustee has been appointed. The bank has moved for appointment of a trustee. In the meantime, Mr. Walter as debtor in possession has many of the same rights and responsibilities as would a trustee. 11 U.S.C. § 1107." }, { "docid": "10254265", "title": "", "text": "federal government. See, e.g., United States v. Harris, 729 F.2d 441, 445 (7th Cir.1984); United States v. Scott, 784 F.2d 787, 791 (7th Cir.1986) (per curiam); United States v. Wheadon, 794 F.2d 1277, 1285 (7th Cir.1986); Hayle v. United States, 815 F.2d 879, 882 (2d Cir.1987). United States v. Montoya, 716 F.2d 1340, 1343-44 (10th Cir.1983), involved the same type of “weatherization” grant involved in the present case. Practical considerations support characterization of these grant moneys as property of the grantors until expended in accordance with the terms of the grants. For consider how these creditors will fare if the appellants succeed in removing Joliet-Will’s assets from the bankrupt estate. The personal property will be sold, and the proceeds, along with the (other) cash in Joliet-Will’s possession, will be returned to the federal and state agencies that originally awarded the grants. Creditors will apply to the agencies for the payment of their invoices, and any creditor who had made a sale to Joliet-Will that was within the scope of one of the grants would — the government concedes — be entitled to payment out of the recovered grant moneys. Some creditors would, it is true, be left out in the cold because Joliet-Will violated the terms of the grant. For example, in its waning days Joliet-Will sold some of the building materials it had earlier bought, in order to raise cash. These sales were unauthorized. Suppose someone had put down a deposit on some of these materials and lost the deposit when Joliet-Will went broke. He could not recover his deposit from the grant moneys. Nor could someone who had obtained a tort judgment against Joliet-Will — say because one of its drivers had, while on the agency’s business, run him over — collect the judgment out of the grant moneys. These claimants would be unsecured creditors in bankruptcy, but outside of bankruptcy would have no claim against the grant moneys, because the grants do not authorize refunds to buyers of building materials, or payments of accident claims. All Joliet-Will’s creditors who had dealt with it within the term of" }, { "docid": "18573475", "title": "", "text": "this one. In re Klein, 940 F.2d 1075, 1077 (7th Cir.1991); In re Weber, 892 F.2d 534, 537-38 (7th Cir.1989); In re Boomgarden, 780 F.2d 657, 659-60 (7th Cir.1985); In re Riggsby, 745 F.2d 1153 (7th Cir.1984). No matter. The district court’s decision in this case was final in the conventional sense, notwithstanding the remand. By establishing that the bank has a secured claim for $750,000 against the assets of the bankrupt estate, the decision resolved the dispute between creditor and debtor and is therefore final. In re Szekely, 936 F.2d 897, 899-900 (7th Cir.1991); Home Ins. Co. v. Cooper & Cooper, Ltd., 889 F.2d 746,748 (7th Cir.1989). The remand is purely ministerial, as there is no doubt that the requisite documentation exists — indeed, the district court’s reason for reversing the bankruptcy judge’s disallowance of the claim is that the documents had long been part of the record of the bankruptcy proceeding and were known by the trustee. No one had been harmed by the omission to staple them to the proof of claim. The bankruptcy judge’s ruling disallowing the proof of claim without leave to amend had thus been hypertechnical. A remand to correct a purely formal defect is the quintessential ministerial remand, for it is exceedingly unlikely to generate a further appeal and therefore raise the specter, against which the final-decision rule is aimed, of piecemeal appeals. In re Fox, 762 F.2d 54, 55 (7th Cir.1985); Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir.1985). There is a further wrinkle, though: the amended proof of claim that the bank has filed on remand pursuant to the district judge’s order is for more than twice the $750,000 face amount of the original loan. The reason is that the new proof of claim includes claims for interest and for attorney’s fees. The latter is not at all troublesome from the standpoint of finality. The determination of attorney’s fees is a collateral matter which, even when as in this case they are claimed by virtue of contract rather than statute, does not affect the appealability of the underlying claim. Herzog" }, { "docid": "22091609", "title": "", "text": "weeks later on April 21, 2005, they knew that “no final Order and Judgment ha[d] been issued in this matter” because the district court had not quantified the amount of pre-judgment interest owed to Dieser. Continental and CompuCom even noted in their notice of appeal that the district court had not yet determined the amount of pre-judgment interest and stated that they “intend to include in their appeal any award of prejudgment interest.” This statement of intent is insufficient to satisfy the requirement that the notice of appeal be filed “within 30 days after the judgment or order appealed from is entered.” Fed. R.App. P. 4(a)(1)(A) (emphasis added). Continental and CompuCom’s April 21, 2005, notice of appeal was filed prematurely, and they did not file a new notice of appeal after the district court entered the June 2005 order, which disposed of all issues in the case and was a final, appeal-able order. Accordingly, the appeal is dismissed for lack of jurisdiction. . The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern Dis trict of Missouri. . The district court's memorandum opinion of August 26 indicates that the 441-day period encompasses February 27, 2001, through May 14, 2002. . This is not a case where the determination of specific amounts would be “mechanical and uncontroversial,” such that \"only a 'ministerial' task remains for the district court to perform.” St. Mary’s Health Ctr. v. Bowen, 821 F.2d 493, 498 (8th Cir.1987) (quoting Parks v. Pavkovic, 753 F.2d 1397, 1404 (7th Cir.1985)) (holding that an order granting partial summary judgment but not disposing of claims for injunctive relief and for damages was not a final order). As demonstrated by the parties’ submissions to the district court, the determination of the amount of pre-judgment interest by the district court was more than a ministerial task and was controversial. . In Miller, this Circuit also declined to adopt the doctrine of \"cumulative finality,” under which a premature appeal is not dismissed if the district court resolves the case prior to final resolution by the court of appeals. Miller, 369 F.3d at" }, { "docid": "18900528", "title": "", "text": "proceeds then remaining to the debtor and appellant equally. No judgment or decree of dissolution was entered at that time and trial of the dissolution action was scheduled to commence on June 3, 1987. The debtor filed his Chapter 11 petition on May 7, 1987. On July 7, 1987, appellant filed a motion for relief from stay seeking to continue and complete the dissolution action. The bankruptcy court granted limited relief from stay but forbade appellant from obtaining a final determination of any disputed issues regarding the characterization of the estate’s property as “community” or “separate.” In addition, the bankruptcy court stated that relief from stay did not permit the sale, liquidation or other disposition of property of the estate without further order of the court. In April, 1988, the debtor sought authority to sell the residence, to pay encumbrances, costs of sale, broker’s fees and agreed-upon community debts from the proceeds and to disburse one-half of the remaining proceeds to appellant. Appel-lees Bank of America, Tishman West Management Corporation and Donald McCann (collectively, the “appellees”), who were all creditors of the debtor with claims incurred after separation but before any judgment of dissolution, opposed the motion, objecting to the distribution proposed by the debtor. The bankruptcy court authorized the sale, but scheduled an additional hearing on the issues regarding the distribution of the proceeds. Appellant appeared in support of the distribution proposed by the debtor. The bankruptcy court found that the McCoys’ community property had not been divided as of the commencement of the Chapter 11 case and ruled that prior to a decree of dissolution, community property is liable for all debts incurred by the spouses during the existence of the marriage, including those debts incurred by only one spouse after separation. The court further ruled that proceeds from the residence were therefore subject to the claims of the appellees. The bankruptcy court entered a Memorandum Decision, see In re McCoy, 90 B.R. 448 (Bankr.S.D.Cal.1988), and an order to this effect. Appellant filed a timely notice of appeal. ISSUES 1. Whether the state court’s order that the residence" }, { "docid": "16413314", "title": "", "text": "at 1515. The Supreme Court also reasoned that the district court’s decision was final even though the details of the divestiture plan which the District Court would approve were uncertain because any such plan would not affect the outcome of the basic litigation in this case. See Brown, 370 U.S. at 309 n. 15, 82 S.Ct. at 1514 n. 15. The Seventh Circuit employed a similar analysis in Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.1984), a class action case similar to the one at bar. In Parks the district court rendered a decision permanently enjoining the state from requiring parents to pay certain costs for educating their children, it ordered the state to reimburse those parents for such costs since 1978 although it did not determine the amount of reimbursement (which at the time of oral argument was estimated to be between $1.5 million and $3 million), and it certified its decision as a final judgment under Fed.R.Civ.P. 54(b). After noting the general rule that an order that leaves the determination of damages to a future proceeding is not final, the Court noted that such a decision is sufficiently final “if the determination of damages will be mechanical and uncontroversial”, so that the issues presented in the appeal are “very unlikely to be mooted or altered” by the damage computation then an immediate appeal is allowed “[fjor if the further proceedings in the trial court are quite unlikely to make the appeal moot or even affect the issues on appeal, there is no reason to delay the appeal while they are resolved; and the delay may be a source of cost.” Parks, 753 F.2d at 1401-02. Applying this test the Court concluded that “[ajlthough computing the money owed each class member is not automatic, it is mechanical, is unlikely to engender dispute or controversy, and will require no analytic or judgmental determinations that might affect the questions now before us or give rise to other appealable questions” because even in the “unlikely event that any appealable issues arise in computing each class member’s entitlement to damages, they will not" }, { "docid": "15735200", "title": "", "text": "chapter 13 plan that provided full repayment to Warren’s secured creditors and partial repayment (50%) to Warren’s unsecured creditors. (Id., Order Confirming Chapter 13 Plan.) On July 19, 2002, Warren converted her chapter 13 case to a chapter 7 case. (Id., Notice of Conversion.) The present appeal stems from three decisions made by the bankruptcy court after Warren converted her case to chapter 7. On March 31, 2003, Peterson filed a motion to retain a real estate broker, which the bankruptcy court granted on April 10, 2003. (Id., Appellee’s Mot. to Retain Counsel; Order to Retain Counsel.) On April 1, 2003, Peterson filed a motion to sell Warren’s residence, which the bankruptcy court granted on April 24, 2003. (Id., Appellee’s Mot. to Sell Property; Order Authorizing Sale.) On April 21, 2003, Warren filed a motion to reconsider, which the bankruptcy court denied on April 29, 2003. (Id., Appellant’s Mot. to Reconsider; Order Denying Appellant’s Mot. to Reconsider.) On May 9, 2003, Warren appealed all three decisions. LEGAL STANDARDS This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 158. We review the bankruptcy court’s factual findings under a “clearly erroneous” standard and its conclusions of law de novo. In re Smith, 286 F.3d 461, 464-65 (7th Cir.2002). ANALYSIS This case concerns the proper application of 11 U.S.C. § 348(f), which governs the effect of converting bankruptcy cases from one chapter to a different chapter on the valuations of property in the bankruptcy estate. The statute states: (f)(1) Except as provided in paragraph (2), when a case under chapter 13 of this title is converted to a case under another chapter under this title- (A) property of the estate in the converted case shall consist of property of the estate, as of the date of filing of the petition, that remains in the possession of or is under the control of the debtor on the date of conversion; and (B) valuations of property and of allowed secured claims in the chapter 13 case shall apply in the converted case, with allowed secured claims reduced to the extent that they" }, { "docid": "12592557", "title": "", "text": "The court also held that because the LRA provided for FreeStream to be paid directly by Lookout, FreeStream’s contingency fee could never be considered part of the bankruptcy estate. Id. at *5-6. On April 12, the district court issued a clarifying nunc pro tunc order directing the bankruptcy court to distribute the Pennsylvania judgment. Aplt. App. 398-99. The Trustee followed with a motion to certify that order for appellate review, Fed.R.Civ.P. 54(b), which the district court denied. Id. at 402-13. The court held that the Trustee’s motion to certify the April 12 order was procedurally improper. Id. at 409. The court also indicated it would decline to grant any Rule 54(b) motion to certify its April 9 substantive order, reasoning that the order was non-final as to the fraudulent transfer claims. Id. at 409-13. Discussion A. Does this Court Have Appellate Jurisdiction? Contrary to the arguments of the various Defendants, the Kansas federal district court did rule on the applicability of the automatic stay in granting the motions to distribute. Specifically, the court found that the Pennsylvania judgment was not property of GRHC’s estate and, therefore, not subject to the automatic stay. Thus, the district court’s order, which deemed § 362 inapplicable to the judgment proceeds, was essentially an order granting relief from the automatic stay. See Quigley Co., Inc. v. Law Offices of Peter G. Angelos (In re Quigley Co.), 676 F.3d 45, 51 (2d Cir.2012) (holding that a decision on § 362’s applicability is “the equivalent of a decision ... on a motion seeking relief from a stay”); see also Eddleman v. U.S. Dep’t of Labor, 923 F.2d 782, 785 (10th Cir.1991), overruled in part on other grounds by Temex Energy, Inc. v. Underwood, Wilson, Berry, Stein & Johnson, 968 F.2d 1003, 1005 n. 3 (10th Cir.1992). The grant or denial of relief from an automatic stay is generally an appeal-able final order. Franklin Sav. Ass’n v. Office of Thrift Supervision, 31 F.3d 1020, 1022 n. 3 (10th Cir.1994); see 3 Collier on Bankruptcy ¶ 362.13 (collecting cases). We have explained that an immediate appeal “is necessary to" }, { "docid": "18573476", "title": "", "text": "The bankruptcy judge’s ruling disallowing the proof of claim without leave to amend had thus been hypertechnical. A remand to correct a purely formal defect is the quintessential ministerial remand, for it is exceedingly unlikely to generate a further appeal and therefore raise the specter, against which the final-decision rule is aimed, of piecemeal appeals. In re Fox, 762 F.2d 54, 55 (7th Cir.1985); Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir.1985). There is a further wrinkle, though: the amended proof of claim that the bank has filed on remand pursuant to the district judge’s order is for more than twice the $750,000 face amount of the original loan. The reason is that the new proof of claim includes claims for interest and for attorney’s fees. The latter is not at all troublesome from the standpoint of finality. The determination of attorney’s fees is a collateral matter which, even when as in this case they are claimed by virtue of contract rather than statute, does not affect the appealability of the underlying claim. Herzog Contracting Corp. v. McGowen Corp., 976 F.2d 1062,1065 (7th Cir.1992); see also In re Colon, 941 F.2d 242, 244-45 (3d Cir.1991). This is not because a claim of attorney’s fees is unlikely to give rise to an appeal — we see a vast number of such appeals — but because, if it does, the issues presented by the appeal will be unrelated (or largely so) to the issues presented by and decided in the original appeal. The appellate court will thus be spared the burden of duplicative appeals, the burden that the term “piecemeal appeals” denotes. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202, 108 S.Ct. 1717, 1721, 100 L.Ed.2d 178 (1988). The question whether the bank’s demand for interest renders the judgment non-final is dicier. Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1988), holds that a postjudgment motion for prejudgment interest destroys finality. The Court’s reasoning was that prejudgment interest is part of the relief sought by the plaintiff to rectify the defendant’s wrong. Postjudgment" }, { "docid": "10211114", "title": "", "text": "does not have the same meaning in bankruptcy cases as it does in other cases brought in federal court. See, e.g., In the Matter of Fox and Fox, 762 F.2d 54, 55 (7th Cir.1985). We have noted that the different meaning of finality in the bankruptcy context results from the unique nature of bankruptcy cases and may sometimes justify a more liberal reading of finality under section 1293(b). Firestone Tire & Rubber Co. v. Goldblatt Bros., 758 F.2d 1248, 1251 (7th Cir.1985). Thus, we have held that a proceeding to establish a claim against a bankrupt estate will be considered final under section 1293(b) when that proceeding is completed, even though the bankruptcy case continues. In the Matter of Fox, 762 F.2d at 55. In In the Matter of Fox, we held that a district court’s order reversing a bankruptcy court’s disallowance of the claims of two banks against a bankrupt estate was not a final order because the district court reversed and remanded the case for further proceedings to determine how much the banks were entitled to and how much each of them would actually receive from the remaining assets of the estate. Id. at 55-56. We held that if the district court had affirmed the bankruptcy judge’s disallowance of the banks’ claims, however, the district court’s order would have been final. Id. at 55. We concluded that even though a district court’s order remanding a case to a bankruptcy judge would not normally be considered final for appellate purposes, such an order would be final if all that remained to be done on remand was a purely mechanical, computational, or ministerial task that was unlikely to result in a new appeal or to affect issues that the losing party might want to raise on appeal following the remand. Id. The circuits that have examined the issue presented in the present appeal have held that an order by a district court granting or denying an exemption is appealable as a final judgment. See In re White, 727 F.2d 884, 885-86 (9th Cir.1984); John T. Mather Memorial Hospital v. Pearl," }, { "docid": "14433446", "title": "", "text": "Virgin Islands, a tax could be levied in proportion to the in-territory activity. 33 V.I.C. § 41. Because of 13 V.I.C. § 774, non-Virgin Islands trading gross receipts are exempted from the gross receipts tax in § 43(a) even if Virgin Islands business activity gave rise to those receipts. . Plaintiffs claim § 775 is illusory because export property is otherwise exempt from excise taxes under 33 V.I.C. § 42(e)(8). However, § 42(e)(8)’s exemption applies to such property only if the purchaser \"take[s] delivery and actual possession outside the Virgin Islands.” If goods are sold under a contract negotiated in the Virgin Islands, the purchaser is deemed to have taken possession in the Virgin Islands and the exemption does not apply. See 6 V.I.Op.A.G. 38 (June 17, 1968). Thus, § 775’s exemption is broader than the exemption under § 42(e)(8), exempting all export property no matter where it is, in fact, delivered or sold and regardless of where the contract of sale is negotiated. .As we have noted, each FSC has a right to transform these statutory entitlements into contractual guarantees, under 13 V.I.C. § 780. The contracts, which the Lieutenant Governor must provide within 30 days of a request, specify that benefits will not be \"impair[ed] or limit[ed]” and that the government's obligation for benefits is personal to the signatory FSC in consideration of compliance with all rules, laws and regulations and current payment of all taxes and fees. . Although we expressed doubt, by way of a request for additional briefing, that the district court’s order was final within the meaning of 28 U.S.C. § 1291, we agree with the parties that the order sufficiently disposes of the factual and legal issues and that any unresolved issues are sufficiently \"ministerial'' that there would be no likelihood of further appeal. See Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir.), cert. denied, 473 U.S. 906, 105 S.Ct. 3529, 87 L.Ed.2d 653 (1985). We exercise plenary review over the district court's interpretation of 13 V.I.Regs. § 530-3(a) and 13 V.I.C. § 770. Brow v. Farrely, 994 F.2d 1027, 1032 (3d" }, { "docid": "18900527", "title": "", "text": "ASHLAND, Bankruptcy Judge. This appeal concerns the disbursement of the proceeds from the sale of the residence of the debtor and his non-debtor spouse. The bankruptcy court determined that the sale proceeds were community property, were property of the estate, and were liable for debts incurred by either spouse after separation but prior to the dissolution of the marriage and denied a motion for an order authorizing disbursement of one-half of the net proceeds to the non-debtor spouse. We reverse. FACTS The debtor, Jack S. McCoy (“debtor”), and appellant, Sheryl K. McCoy (“appellant”) married on April 5, 1969. The McCoys separated on January 10, 1985. On June 5, 1985, appellant filed a dissolution petition in state court. At that time the community property of the McCoys included their residence located in Coronado, California (the “residence”). In the dissolution action on April 28, 1987, the court ordered that the residence be listed for sale and, upon the sale of the residence, that certain community debts be paid from the proceeds followed by the disbursement of any proceeds then remaining to the debtor and appellant equally. No judgment or decree of dissolution was entered at that time and trial of the dissolution action was scheduled to commence on June 3, 1987. The debtor filed his Chapter 11 petition on May 7, 1987. On July 7, 1987, appellant filed a motion for relief from stay seeking to continue and complete the dissolution action. The bankruptcy court granted limited relief from stay but forbade appellant from obtaining a final determination of any disputed issues regarding the characterization of the estate’s property as “community” or “separate.” In addition, the bankruptcy court stated that relief from stay did not permit the sale, liquidation or other disposition of property of the estate without further order of the court. In April, 1988, the debtor sought authority to sell the residence, to pay encumbrances, costs of sale, broker’s fees and agreed-upon community debts from the proceeds and to disburse one-half of the remaining proceeds to appellant. Appel-lees Bank of America, Tishman West Management Corporation and Donald McCann (collectively, the" }, { "docid": "19923901", "title": "", "text": "to be completed. Because distribution of assets is a ministerial act, see In re Official Comm, of Unsecured Creditors, 943 F.2d 752 (7th Cir.1991), the denial of the motion to dismiss was appropriate for appeal to the district court. See also In re Wade, 991 F.2d 402, 406 (7th Cir.1993) (“A final order in a bankruptcy case, [sic] is one that resolves all contested issues on the merits and leaves only the distribution of the estate assets to be completed.”). The district court’s order was also final and appealable. As mentioned above, the district court reversed the bankruptcy court’s denial of the motion to dismiss and remanded to the bankruptcy court for further proceedings. See RossTousey, 368 B.R. at 768-69. Normally an order dismissing a case is appealable; the issue here is whether the district court’s remand to the bankruptcy court made the district court’s order “non-final.” We have held that “even if the decision of the bankruptcy court is final, a decision by the district court which remands the case to the bankruptcy court for further proceedings is not final unless the contemplated further proceedings are of a purely ministerial character....” Lopez, 116 F.3d at 1192; see also In re Fox, 762 F.2d 54, 55 (7th Cir.1985) (a district court order remanding the case to the bankruptcy court may qualify as final if “all that remains to do on remand is a purely mechanical, computational, or in short ‘ministerial’ task, whose performance is unlikely either to generate a new appeal or to affect the issue that the disappointed party wants to raise on appeal from the order of remand”). Here, the district court reversed and remanded to the bankruptcy court, which had yet to determine whether the debtors had special circumstances sufficient to rebut the presumption of abuse under section 707(b)(2). However, the debtors appealed to this court. When the UST moved to dismiss the appeal due to the issue pending on remand, the debtors responded by stating that they had no special circumstances to raise on remand. Because debtors have stipulated that no special circumstances exist, it appears" }, { "docid": "18766318", "title": "", "text": "(1976); In re Boomgarden, 780 F.2d 657, 659 (7th Cir.1985), we conclude that the order under appeal is final, and that we have jurisdiction of this appeal. We have jurisdiction of appeals from final decisions of district courts in bankruptcy cases. 28 U.S.C. § 158(d); In re Boomgarden, 780 F.2d at 659. “Final” is interpreted more liberally in bankruptcy cases than in other federal cases. In re Barker, 768 F.2d 191, 193 (7th Cir.1985). Orders approving or failing to approve the sale of a debtor’s property are considered final decisions and are immediately appealable. In re Kaiser, 791 F.2d 73 (7th Cir.1986); Sulmeyer v. Karbach Enterprises (In re Exennium), 715 F.2d 1401, 1402-03 (9th Cir.1983); 1 Collier on Bankruptcy 113.03, at 3-156 (15th ed. 1986); see also Gross v. Russo (In re Russo), 762 F.2d 239 (2nd Cir.1985) (jurisdiction assumed without discussion); House Corp. v. Vetter Corp. (In re Vetter Corp.), 724 F.2d 52 (7th Cir.1983) (jurisdiction assumed without discussion). In cases similar to the one before us, other courts of appeals have exerted jurisdiction over appeals of district court orders dismissing appeals of bankruptcy court orders approving sales, Tompkins v. Frey (In re Bel Air Associates), 706 F.2d 301 (10th Cir.1983); Bleaufontaine, Inc. v. Roland International (In re Bleaufontaine, Inc.), 634 F.2d 1383 (5th Cir.1981); as in the case at bar, the appellants in those cases failed to obtain a stay of the sale. The immediate appealability of decisions determining the validity of a sale works to the benefit of the debtor’s estate and creditors. If purchasers at a trustee’s sale of a debtor’s property had to wait until after the entire bankruptcy proceedings were finished to have their property rights determined, undoubtedly a debtor’s property would be worth less than it is under current law. III. Having found subject matter jurisdiction, we must nevertheless dismiss this appeal before reaching the merits. We hold this appeal moot because the sale of the Yacht was authorized under § 363(b) and Three Rivers failed to obtain a stay of the sale. This result is required by 11 U.S.C. § 363(m), which" }, { "docid": "18766317", "title": "", "text": "of the Sommerset III. Three Rivers then appealed to the district court the bankruptcy court's order approving the sale and the turnover order. On the Trustee’s motion, the district court dismissed the appeal as moot because Three Rivers had not obtained a stay of the sale, and, therefore, the district court’s ruling could not affect the sale pursuant to 11 U.S.C. § 363(m). Alternatively, the district court denied the appeal and affirmed the two bankruptcy court orders. On appeal to this Court, Three Rivers claims that the Sommerset III was not property of the debtor’s estate; therefore the sale was not under 11 U.S.C. § 363(b), § 363(m) does not apply, and the district court erred in dismissing the appeal. Appellant argues further that the Trustee’s sale of the Sommerset III is void because the bankruptcy court lacked jurisdiction. The Trustee and the intervenor argue that this appeal is moot. II. First, to dispose of the threshold issue of appellate jurisdiction, Liberty Mutual Insurance v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); In re Boomgarden, 780 F.2d 657, 659 (7th Cir.1985), we conclude that the order under appeal is final, and that we have jurisdiction of this appeal. We have jurisdiction of appeals from final decisions of district courts in bankruptcy cases. 28 U.S.C. § 158(d); In re Boomgarden, 780 F.2d at 659. “Final” is interpreted more liberally in bankruptcy cases than in other federal cases. In re Barker, 768 F.2d 191, 193 (7th Cir.1985). Orders approving or failing to approve the sale of a debtor’s property are considered final decisions and are immediately appealable. In re Kaiser, 791 F.2d 73 (7th Cir.1986); Sulmeyer v. Karbach Enterprises (In re Exennium), 715 F.2d 1401, 1402-03 (9th Cir.1983); 1 Collier on Bankruptcy 113.03, at 3-156 (15th ed. 1986); see also Gross v. Russo (In re Russo), 762 F.2d 239 (2nd Cir.1985) (jurisdiction assumed without discussion); House Corp. v. Vetter Corp. (In re Vetter Corp.), 724 F.2d 52 (7th Cir.1983) (jurisdiction assumed without discussion). In cases similar to the one before us, other courts of appeals have exerted jurisdiction" }, { "docid": "14810029", "title": "", "text": "statutorily permissible only once the property in question has been determined not to be of “inconsequential value or benefit to the estate,” 11 U.S.C. § 542(a), the bankruptcy court cannot finally decide this issue until Seaside Lanes completes the ordered accounting of its assets and liabilities. Only then will the court be able to determine whether the cash value of Shearn Moody, Jr.’s interest is of consequential value or benefit to his bankruptcy estate, and, hence, only then will it be able to resolve with finality the trustee’s claimed entitlement to turnover of that interest. Consequently, there are still issues pending between the trustee and the defendants with respect to the “discrete dispute” represented by the separate adversary action involved here. The existence of these remaining issues, yet to be settled by the bankruptcy court, leads us to conclude that the order entered by the bankruptcy court did not finally determine the rights of the trustee to secure the relief requested in his complaint. We are reinforced in our conclusion by our belief that the result serves the laudatory goal of avoiding piecemeal appeals. See County Management, 788 F.2d at 314; Delta Servs. Indus., 782 F.2d at 1269. Too much is left for the bankruptcy court to do in this case for us to have confidence that no further appeals would be generated from this single adversary proceeding were we to allow an appeal now. The likelihood that the bankruptcy court’s resolution of the issues still pending will alter, or even moot, the issues that would be raised on appeal from the court’s Memorandum and Order is too great to make an immediate appeal efficient. See In re Fox, 762 F.2d 54, 55 (7th Cir.1985) (remand order is not final unless all that remains for bankruptcy court to do is a “purely mechanical, computational, or in short ‘ministerial’ task, whose performance is unlikely to generate a new appeal or to affect the issues that the disappointed party wants to raise on appeal”). The appellants further argue that even if the bankruptcy court order is not technically final for purposes of" }, { "docid": "23243438", "title": "", "text": "5, 2000 order, however, did not reduce the amount of these damages to a sum certain. Prior to the filing of the appellate briefs, GM moved to dismiss the appeal, contending that the District Court’s order was not final for purposes of 28 U.S.C. § 1291, and this motion has been pending before us. Were our finality determination to be based solely on the face of the March 8, 2000 and April 5, 2000 orders, we would be constrained to conclude that the orders were not final under § 1291. Section 1291 of Title 28 authorizes appellate jurisdiction over inter alia \"all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. A final order is one that \"ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). In general terms, a decision that fixes the parties' liability but leaves damages unspecified is not final, and the adjudication of liability is not immediately appealable. See United States v. F.&M. Schaefer Brewing Co., 356 U.S. 227, 233-34, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Bd., 535 F.2d 758, 760 (3d Cir.1976) (per curiam). Although the District Court’s April 5, 2000 order set forth a reasonably precise formula for the determination of damages (i.e., 10% of net profits during a specified period of time), so that one could characterize the unperformed damage calculation as a merely mechanical or ministerial act that would not preclude our exercise of appellate jurisdiction, see Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir.1985) (determining that § 1291 finality exists when \"computing the money owed ... is unlikely to engender dispute or controversy, and will require no analytic or judgmental determinations that might ... give rise to other appealable questions”), our precedent squarely forecloses us from doing so. See Marshak v. Treadwell, 240 F.3d 184, 191 (3d Cir.2001) (holding that an order awarding the defendants damages for trademark infringement in the" }, { "docid": "23243439", "title": "", "text": "of liability is not immediately appealable. See United States v. F.&M. Schaefer Brewing Co., 356 U.S. 227, 233-34, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Bd., 535 F.2d 758, 760 (3d Cir.1976) (per curiam). Although the District Court’s April 5, 2000 order set forth a reasonably precise formula for the determination of damages (i.e., 10% of net profits during a specified period of time), so that one could characterize the unperformed damage calculation as a merely mechanical or ministerial act that would not preclude our exercise of appellate jurisdiction, see Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir.1985) (determining that § 1291 finality exists when \"computing the money owed ... is unlikely to engender dispute or controversy, and will require no analytic or judgmental determinations that might ... give rise to other appealable questions”), our precedent squarely forecloses us from doing so. See Marshak v. Treadwell, 240 F.3d 184, 191 (3d Cir.2001) (holding that an order awarding the defendants damages for trademark infringement in the amount of “the profits [plaintiff] earned in each year, beginning with the first act of infringement in 1970 and ending with the first day of trial testimony in this case” was not final because the damage calculation \"cannot reasonably be characterized as merely ministerial.... [T]he parties here have a long history of contentious litigation, and there is a substantial likelihood that 'one or both parties will dispute the ultimate amount of damages awarded....’ ”); Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 934, 936 (3d Cir.1994) (holding that a civil contempt order directing that an accounting be performed to determine the net profit the plaintiff would have realized absent the defendant's contemptuous conduct was not final, because \"no judgment containing a final dollar amount ha[d] been entered” and because the factual determination of net profit \"will not be easily reached”). In the instant matter, however, the analysis of our appellate jurisdiction is not limited by the face of the March 8, 2000 and April 5, 2000 orders, as subsequent, post-appeal proceedings bear directly on" } ]

[ { "docid": "20717878", "title": "", "text": "telling statement by Philips was made in an attempt to directly distinguish its invention from Feinleib. In essence, the only similarity between the memory unit [in Feinleib] and the record carrier defined in [applicant’s disc] is that they are both optical storage media. There the similarity ends. In applicant’s disc the optical structure is non-transmissive and reflective. Feinleib’s entire memory unit is transmissive (he recovers the information by detecting intensity variations of the light after it has passed through the medium). PH 0751 (emphases in original). Here, Philips used the word “transmissive” to describe the manner in which Feinleib’s memory unit (information structure)functioned, that is, that it read the information in transmission mode. As the intrinsic evidence does not provide a definitive answer to the dispute, the court will finally turn to the extrinsic evidence. As previously emphasized, “[i]n construing claims, the courts focus on what one of ordinary skill in the art at the time of the invention would have understood the term to mean.” Mass. Inst. of Tech v. Abacus Software, 462 F.3d 1344, 1353 (Fed.Cir.2006) (citation omitted). Therefore, the court must determine what a person with an undergraduate degree (or the equivalent) in electrical engineering, physics, or optics would have understood the term “non-transmissive optical structure” to mean in 1972. According to defendants’ expert, Dr. Schlesinger, one of ordinary skill in the art in 1972 would have read the '846 Patent and the prosecution history to unequivocally state that the optical structure does not transmit light. Schlesinger Deck ¶ 6. More specifically, Dr. Schlesinger testified that the hypothetical person skilled in the art in 1972 would have understood that the optical structure should be made “as non-transmissive as possible and practical and that while theoretically and even actually some photons may pass this is irrelevant as they are not seen or detected on the other side of the structure.” Id. ¶ 7. Dr. Schlesinger’s testimony has particular force because he took care to contrast the technology available in 1972, before the CD was invented, to the present-day technology, which is at issue. With this in mind, Dr." } ]

[ { "docid": "20717866", "title": "", "text": "in the field of electrical engineering, physics, and/or optics, with at least some practical experience in optics. 1. “Non-transmissive, radiation reflecting optical structure” This term is at the heart of the dispute. It is found in Claim 1, which recites [a] record carrier containing information which is readable by a beam of radiation, said record carrier comprising a disc-shaped, radiation-transmitting substrate having a pair of planar surfaces on opposite sides thereof, a non-transmissive, radiation reflecting optical structure on one of said planar surfaces of said substrate.... '846 Patent, Col. 5, 11. 61-66 (emphasis added). Defendants urge the court to read this term as meaning that the optical structure “does not transmit radiation such as light. For example, light can not be seen through the disc.” Philips, on the other hand, contends that the term should not be construed to convey a property of the optical structure itself (its relative translucence). Rather, Philips argues that the term should be understood as characterizing the method by which the disc is read (in reflection mode as opposed to transmission mode). Philips proposes that the term be construed as “[a]n optical structure that reflects radiation for reading the information but does not also transmit radiation for reading the information.” The '846 Patent does not provide a definition of “non-transmissive.” Therefore, the court will first look to the teachings of the specification and claim language. A stated object of the invention disclosed in the '846 Patent was to improve on the prior art by provid[ing] a record carrier in which the optical structure is protected against dust particles and damage without the use of a protective layer which is required to satisfy stringent requirements. For this purpose the record carrier according to the invention is characterized in that the optical structure is a radiation-reflecting structure and the carrier substrate is radiation-transmitting, the surface of the carrier substrate more remote from the optical structure forming both the entrance face and the exit face for the read radiation. In this record carrier the carrier substrate itself ensures that dust particles. are sufficiently spaced away from the optical" }, { "docid": "20717870", "title": "", "text": "radiation-reflecting and the substrate radiation-transmitting, whilst the surface of the substrate more remote from the optical structure forms both the entrance face and the exit face for the read radiation, and by coating a surface of the optical structure more remote from the substrate with an additional layer, a simple record carrier is obtained which is well protected against dust particles and damage. Id., Abstract. This in turn is supported by the language of Claim 1, which recites, in part, the diameter of the beam is sufficiently larger than the diameter of said spot [on the optical structure] so that dust particles, scratches and the like on said other surface, do not interfere with the readout of information by the convergent beam focussed to said spot on said optical structure.... Id., Col. 6,11. 20-25. Defendants point in particular to two statements in support of their contention that light does not pass through the optical structure. First, the specification discloses that [t]he optical structure is read in reflection mode, which means that the read beam is modulated by reflection at the optical structure. The additional layer is not traversed by the read beam and is only required to protect the optical structure from damage. Hence this layer need not satisfy exacting requirements. It need not be radiation-transmissive and need not have a constant thickness throughout its surface. In addition, it need not accurately engage the optical structure. Id., Col. 2, 11. 28-36 (emphasis added). Second, defendants make note of the statement that the record carrier may be read in a nondustfree room, for example a living room, for dust particles deposited on the layer 10 have no effect, because the read beam does not pass through this layer. Id., Col. 4, 11. 21-24 (emphasis added). Because the specification and claim language provide no clear answer, the court will turn next to the prosecution history. The '846 Patent issued after almost twenty years of continuation applications. Along the way, Philips was met with repeated rejections by the Examiner, and took appeals to both the Patent and Trademark Office Board of Appeals and" }, { "docid": "20717861", "title": "", "text": "MEMORANDUM AND ORDER ON CLAIM CONSTRUCTION RICHARD G. STEARNS, District Judge. The patent in suit, U.S. Patent No. 5,068,846 ('846 Patent), entitled “Reflective, Optical Record Carrier,” was issued to Pieter Kramer, the former head of the optical research group at plaintiff Koninklijke Philips Electronics N.V., on November 26, 1991. The '846 patent is directed to a record carrier for video and/or audio information. Before the court are the parties’ briefs on claim construction. The court held a claim construction hearing in the Southern District of New York on December 2, 2009, and a subsequent hearing at which Markman issues were addressed on January 22, 2010. BACKGROUND OF THE INVENTION The '846 Patent discloses an optical storage disc consisting of three main structures. The lower surface of the disc is a substrate (also referred to as the “carrier substrate”), which permits the interpenetration or passage of a beam of light. The optical structure is comprised of a number of circular tracks in which data is stored in a pattern of pits and depressions. A protective layer, also called an “additional layer,” is located above the optical structure. The disc described in the '846 Patent is read in reflection mode, as opposed to transmission mode. In reflection mode, a beam of radiation (referred to as the “read beam”) passes through the carrier substrate and is reflected at the optical structure. During the disc’s rotation, the read beam is focused on a fixed point on the optical structure and is modulated in accordance with the sequence of depressions on the track. The read beam passes through a half-silvered mirror, which serves as the reflector. The modulated beam is then intercepted by a radiation-sensitive detector. An electric signal is produced by the detector that corresponds to the information stored in the tracks. A connected electronic means is used to convert the signal into picture and sound. See '846 Patent, Col. 3, 1. 61-Col. 4, 1. 10. Claim Construction “It is a bedrock principle of patent law that the claims of a patent define the invention to which the patentee is entitled the right to" }, { "docid": "20717886", "title": "", "text": ". Courts are not prohibited from \"examining extrinsic evidence, even when the patent document itself is clear.... Rather, [courts merely cannot] rely on extrinsic evidence in claim construction to contradict the meaning of the claims discernible from thoughtful examination of the claims, the written description, and the prosecution history — the intrinsic evidence.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed.Cir.1999) (emphasis in original). . The court understands from Dr. Prucnal’s testimony that a fundamental principle of optics states that \"when light passes from one material to another, some of the light is reflected, some of the light is transmitted, and some of the light is absorbed.” Prucnal Deck ¶ 6. Therefore, it follows that nothing can be absolutely 100 percent non-transmissive. . I am not referring to the parties' proposed constructions of the following additional terms: \"optical structure\"; \"disc-shaped, radiation transmitting substrate”; \"planar surfaces”; \"beam of radiation”; \"tracks”; \"depressions”; \"intermediate areas”; \" 'radiation reflecting' optical structure”; \"additional layer”; and \"modulated radiation.” A court is to confine itself to the construction of only those terms \"that are in controversy, and only to the extent necessary to resolve the controversy.” Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed.Cir.1999). The court finds construction of these terms unnecessary as neither party has demonstrated that the '846 Patent does not adequately define or describe them. . The issue of jury participation in claim construction issues was a controversial one that divided the Federal Circuit in Markman. Although a unanimous Supreme Court considerably narrowed, if not eliminate altogether, the jury’s role in determining how a claim should be defined, the Court left it to the jury to decide, as is the issue here, how that definition should be applied to a claim of infringement. See Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1344 (Fed.Cir.2002) (“A determination of whether properly construed claims literally read on an accused product is a question of fact.”). In the usual case, the Markman construction may well be determinative as the specification of the patent will explain the intent" }, { "docid": "20717872", "title": "", "text": "Interferences (Board) and the Federal Circuit. See In re Kramer, 1991 WL 3392, at *1 (Fed.Cir. Jan. 17, 1991). The original applied-for claim recited a disc-shaped record carrier with a “radiation-reflecting” optical structure. The Examiner rejected this claim over three patents issued to Feinleib: U.S. Patent Nos. 3,665,425 (’425 Patent); 3,696,344 (’344 Patent); and 3,696,386 (’386 Patent) (collectively, Feinleib). Unlike the invention in the '846 Patent, where information is permanently pressed into the disc and cannot be erased or rewritten, Feinleib’s invention contained amorphous material that was recordable and rewritable, that is, actively recorded, erased, and rewritten by a light beam. The '386 Patent explains that the memory is read in the transmission mode, where the light source and the detector are positioned on opposite sides of the disc and the detector reads the differences in the intensity of the light. In response to the rejection over Feinleib, Philips argued that “[ajpplicant’s information structure is totally reflecting and therefore cannot pass light,” contrasting the prior art by arguing that in Feinleib, the light “would tend to pass through the information structure.” Pros. Hist. (PH) 0387 (emphasis added). Philips continued that [ajpplicant achieves dust immunity of the information structure with respect to both the entering and exiting beam by selecting a totally reflecting information structure and a transparent substrate of sufficient thickness that a converging beam focussed as a cone of light on the information structure has a diameter at the entry surface of the substrate that is larger than the dust particles and a diameter at the information structure that is smaller than such dust particles. The exit cone of light thereby has the same diameter at the surface of the substrate. Feinleib is totally unconcerned with dust immunity, since in all of the embodiments shown in the drawings Feinleib locates his transparent information structure near the upper surface of the record carrier, thereby bringing the dust accumulating on the upper surface close to the focus of the radiation beam used for reading. Furthermore, ... the information structure of his non-preferred embodiment is alternately reflecting and transmitting radiation in accordance" }, { "docid": "20717869", "title": "", "text": "layer that covers the optical structure. The specification further discloses that [t]he faces of the optical structure have been made highly reflecting, for example in that after the structure has been pressed in the substrate a metal layer is deposited on it from vapour. The thickness of this metal layer is not of importance. Id., Col. 3, 11. 29-34 (emphases added). Of more than passing significance, this language discloses that the optical structure need only be “highly reflecting.” It does not require that it be impervious to light. This interpretation finds support in the later statement that the thickness of the metal layer deposited by vaporization is of no critical significance. If, as defendants argue, the invention disclosed was concerned with prohibiting light from passing through the optical structure altogether, the thickness of the reflective layer on the optical structure would have been crucial to the task. It is clear (and also undisputed) that the reduction, and preferably the elimination, of dust interference was a goal of the '846 Patent. By making the optical structure radiation-reflecting and the substrate radiation-transmitting, whilst the surface of the substrate more remote from the optical structure forms both the entrance face and the exit face for the read radiation, and by coating a surface of the optical structure more remote from the substrate with an additional layer, a simple record carrier is obtained which is well protected against dust particles and damage. Id., Abstract. This in turn is supported by the language of Claim 1, which recites, in part, the diameter of the beam is sufficiently larger than the diameter of said spot [on the optical structure] so that dust particles, scratches and the like on said other surface, do not interfere with the readout of information by the convergent beam focussed to said spot on said optical structure.... Id., Col. 6,11. 20-25. Defendants point in particular to two statements in support of their contention that light does not pass through the optical structure. First, the specification discloses that [t]he optical structure is read in reflection mode, which means that the read beam is" }, { "docid": "20717868", "title": "", "text": "structure. ’846 Patent, Col. 2, 11. 8-21 (emphasis added). The specification describes prior art disclosed in the “Journal of the S.M.P.T.E.” in November of 1979. This prior art used a protective layer on top of the optical structure that allowed the device to be read only in transmission mode. As the beam had to pass through the protective layer to reach the detector, the protective layer had to meet stringent quality standards. See id., Col. 2,11. 6-7. Claim 1 specifies that the substrate under the optical structure is “radiation transmitting”, id., Col. 5, 1. 63, and that the convergent beam of radiation used to read the disc enters the substrate and passes through it to a focused point on the optical structure. Id., Col. 6, 11. 8-11. The use of the word “transmitting” in conjunction with the word “radiation” signifies that the substrate allows light to pass. From this, defendants argue, it follows that only a wow-transmissive optical structure will do the opposite; that is, not allow light to pass through and reach the additional layer that covers the optical structure. The specification further discloses that [t]he faces of the optical structure have been made highly reflecting, for example in that after the structure has been pressed in the substrate a metal layer is deposited on it from vapour. The thickness of this metal layer is not of importance. Id., Col. 3, 11. 29-34 (emphases added). Of more than passing significance, this language discloses that the optical structure need only be “highly reflecting.” It does not require that it be impervious to light. This interpretation finds support in the later statement that the thickness of the metal layer deposited by vaporization is of no critical significance. If, as defendants argue, the invention disclosed was concerned with prohibiting light from passing through the optical structure altogether, the thickness of the reflective layer on the optical structure would have been crucial to the task. It is clear (and also undisputed) that the reduction, and preferably the elimination, of dust interference was a goal of the '846 Patent. By making the optical structure" }, { "docid": "17350284", "title": "", "text": "and Intellectual Science chose claim 1 of that patent as the representative claim of that group. The district court also ordered defendants to choose paradigm products for each group of patents to provide the trial court context for understanding the technology at issue. Defendants chose Sony’s RCD-W500C and RCD-W1 products and JVC’s XL-R5000BK product as the representative products for the “read-read” patents (the “Sony Paradigm Products” and the “JVC Paradigm Product,” respectively)- Claim 1 of the ’575 patent reads as follows (important limitation underlined): An information processing apparatus with multitasking function, the information processing apparatus comprising: (a) a plurality of turntables, each comprising a disc-setting table for mounting an optical disc; (b) a plurality of optical units, each comprising a driving means and an optical read head, wherein said driving means is provided for moving said optical read head in a radial direction of said optical disc to a predetermined disc position on a surface of said optical disc; (c) means for simultaneously controlling a plurality of said driving means to move a plurality of said optical read heads to a plurality of predetermined disc positions on at least two optical discs for retrieving information stored thereon; (d) a plurality of signal-process systems for converting a plurality of information sets retrieved by said plurality of optical read heads from a compact disc format to the original state of the information; and (e) data transmitting means for transmitting a plurality of the information sets converted by said plurality of signal-process systems to a host computer. After Intellectual Science picked its representative claims — but before claim construction' — JVC, Panasonic, and Sony jointly moved for summary judgment of non-infringement. In support of their motion, defendants relied on a declaration by their expert, Dr. Martin E. Kaliski. Dr. Kaliski opined that the means-plus-function limitation of “data transmitting means” should be construed to require a structure that includes at least a system control bus, an ITDM, a host interface bus, and ROM/RAM. Dr. Kaliski further stated that the accused devices do not have a “data transmitting means” because they lack both an ITDM" }, { "docid": "20717885", "title": "", "text": "response to a question at his deposition about whether in 1971 and 1972 it was a matter of concern whether or not the read beam passed through the information layer (optical structure), Kramer responded, “I don’t know. We couldn’t care less. We couldn't care less. It's just that it should reflect enough that we have a good signal.” Kramer Dep. at 120. . The '425 Patent notes that the disc can also be read in the reflection mode: . The Federal Circuit, in reviewing two decisions of the Board affirming the rejection of the application for obviousness, noted that although Feinleib separately suggested (1) a device that employs an optical structure comprised of depressions formed in a substrate, and (2) an optical structure that operates in the reflective mode, there was no \"teaching which would lead one skilled in the art to use those alternatives together.” In re Kramer, 1991 WL 3392, at *2. The Federal Circuit therefore concluded that it was error for the Examiner to reject the application as obvious over Feinleib. Id. . Courts are not prohibited from \"examining extrinsic evidence, even when the patent document itself is clear.... Rather, [courts merely cannot] rely on extrinsic evidence in claim construction to contradict the meaning of the claims discernible from thoughtful examination of the claims, the written description, and the prosecution history — the intrinsic evidence.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed.Cir.1999) (emphasis in original). . The court understands from Dr. Prucnal’s testimony that a fundamental principle of optics states that \"when light passes from one material to another, some of the light is reflected, some of the light is transmitted, and some of the light is absorbed.” Prucnal Deck ¶ 6. Therefore, it follows that nothing can be absolutely 100 percent non-transmissive. . I am not referring to the parties' proposed constructions of the following additional terms: \"optical structure\"; \"disc-shaped, radiation transmitting substrate”; \"planar surfaces”; \"beam of radiation”; \"tracks”; \"depressions”; \"intermediate areas”; \" 'radiation reflecting' optical structure”; \"additional layer”; and \"modulated radiation.” A court is to confine itself to the construction of" }, { "docid": "20717881", "title": "", "text": "it unnecessary after 1980 to incorporate in the CD-ROM an optical structure that did not transmit light. In post-1980 discs, the optical structure was able to “harmlessly transmit [a fraction of the beam] without the ill effects that were the concern of the '846 [P]atent back in 1972 and 1973.” Id. ¶ 24. CONCLUSION Giving due consideration to the testimony of the witnesses (including Kramer), the court construes the term “non-transmissive” to mean “an optical structure that reduces the transmission of radiant light to the greatest degree practicable consistent with the intended purpose.” This, of course, does not end the matter, and may indeed appear to avoid it. But it is important not to confuse the court’s function under Markman with the role of the jury in deciding a claim of infringement. The court’s obligation is to explain to the jury the meaning of difficult claim terms. Here, as is often the practice in post-Markman patent litigation, the parties have invited the court to expand the scope of the construction to include not only the meaning of the disputed term, but also its significance to the operation of the invention’s structure. As this determination necessarily involves an assessment of the credibility of the witnesses who testified (again including Kramer), the court must decline the invitation. Whether the intent of Philips in making a claim of “nontransmissiveness” was simply to enable a reading of the disc in reflection mode (as it contends), or to correct the reading interference issues eventually resolved by the “Sony solution” (as defendants maintain), is a matter for the jury, and not the court, to decide. , , ORDER The claim term at issue will be construed for the jury and for any other purpose in this litigation in a manner consistent with the above ruling of the court. The parties shall, within ten (10) days of the date of this Order, file a joint motion proposing any adjustments in the existing Scheduling Order necessitated by the court’s unanticipated delay in issuing the decision. The parties might also suggest a possible time frame for the trial of" }, { "docid": "20717871", "title": "", "text": "modulated by reflection at the optical structure. The additional layer is not traversed by the read beam and is only required to protect the optical structure from damage. Hence this layer need not satisfy exacting requirements. It need not be radiation-transmissive and need not have a constant thickness throughout its surface. In addition, it need not accurately engage the optical structure. Id., Col. 2, 11. 28-36 (emphasis added). Second, defendants make note of the statement that the record carrier may be read in a nondustfree room, for example a living room, for dust particles deposited on the layer 10 have no effect, because the read beam does not pass through this layer. Id., Col. 4, 11. 21-24 (emphasis added). Because the specification and claim language provide no clear answer, the court will turn next to the prosecution history. The '846 Patent issued after almost twenty years of continuation applications. Along the way, Philips was met with repeated rejections by the Examiner, and took appeals to both the Patent and Trademark Office Board of Appeals and Interferences (Board) and the Federal Circuit. See In re Kramer, 1991 WL 3392, at *1 (Fed.Cir. Jan. 17, 1991). The original applied-for claim recited a disc-shaped record carrier with a “radiation-reflecting” optical structure. The Examiner rejected this claim over three patents issued to Feinleib: U.S. Patent Nos. 3,665,425 (’425 Patent); 3,696,344 (’344 Patent); and 3,696,386 (’386 Patent) (collectively, Feinleib). Unlike the invention in the '846 Patent, where information is permanently pressed into the disc and cannot be erased or rewritten, Feinleib’s invention contained amorphous material that was recordable and rewritable, that is, actively recorded, erased, and rewritten by a light beam. The '386 Patent explains that the memory is read in the transmission mode, where the light source and the detector are positioned on opposite sides of the disc and the detector reads the differences in the intensity of the light. In response to the rejection over Feinleib, Philips argued that “[ajpplicant’s information structure is totally reflecting and therefore cannot pass light,” contrasting the prior art by arguing that in Feinleib, the light “would tend" }, { "docid": "20717876", "title": "", "text": "is that after the beam passes through the substrate and is intercepted by the information structure it can not thereafter continue through the information structure to the backside of the record carrier where dust particles may also deposit. PH 0492 (emphasis added). Philips attempts to deflect these seemingly conclusive statements by putting the blame on its (prior) prosecuting attorney who, according to Philips, did not fully understand the technology. However, later in the prosecution, after the Examiner rejected the application yet again (on grounds of indefiniteness), Philips’ new attorney argued that [applicant does not see how one can state more clearly that the “optical structure” does not transmit radiation incident on it than by saying that it is “non-transmissive” in the manner specified in the claims. Nor can applicant understand how it could be seriously contended that a man skilled in the art would not be able to determine the meaning of that expression. PH 0621-0622. Philips defined the invention by explaining that [t]he information (such as an audio or video signal) is contained in a plurality of depressions (a) spaced apart in the track direction by intermediate areas (b). A reflective layer (9) extends completely over the intermediate areas (b) and the depressions (a), rendering the entire optical structure reflective and non-transmissive to the incident radiation of the read beam. PH 0744. Philips attempted to differentiate its invention by emphasizing that it read only in reflection mode, a matter that was given scant attention by Feinleib. The second function performed by the substrate is to maintain dust particles, scratches and the like sufficiently far from the plane of the optical structure so that they do not interfere with the read-out of the information. This “dust immunity” results from the fact that in applicant’s construction the optical structure is reflective and is disposed on the surface of the substrate which is remote from the source of the beam, so that the exterior surface (8) of the substrate defines both the entrance plane for the incident beam and the exit plane for the reflected modulated radiation. PH 0745. Perhaps the most" }, { "docid": "20717865", "title": "", "text": "language and most naturally aligns with the patent’s description of the invention [in the specification] will be, in the end, the correct construction.” Id. at 1316 (citation omitted). Claim construction “ascribes claim terms the meaning they would be given by persons of ordinary skill in the relevant art at the time of the invention.” SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1283 (Fed.Cir.2005). The court “indulge[s] a heavy presumption that claim terms carry their full ordinary and customary meaning unless the patentee unequivocally imparted a novel meaning to those terms or expressly relinquished claim scope during prosecution.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed.Cir.2003) (internal citations omitted). “A claim construction that gives meaning to all the terms of the claim is preferred over one that does not do so.” Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed.Cir.2005). The parties agree that one of ordinary skill in the art of the '846 Patent would have been a person with an undergraduate degree or the equivalent in the field of electrical engineering, physics, and/or optics, with at least some practical experience in optics. 1. “Non-transmissive, radiation reflecting optical structure” This term is at the heart of the dispute. It is found in Claim 1, which recites [a] record carrier containing information which is readable by a beam of radiation, said record carrier comprising a disc-shaped, radiation-transmitting substrate having a pair of planar surfaces on opposite sides thereof, a non-transmissive, radiation reflecting optical structure on one of said planar surfaces of said substrate.... '846 Patent, Col. 5, 11. 61-66 (emphasis added). Defendants urge the court to read this term as meaning that the optical structure “does not transmit radiation such as light. For example, light can not be seen through the disc.” Philips, on the other hand, contends that the term should not be construed to convey a property of the optical structure itself (its relative translucence). Rather, Philips argues that the term should be understood as characterizing the method by which the disc is read (in reflection mode as opposed to" }, { "docid": "23430273", "title": "", "text": "we will not dwell further on that question. We will consider only whether the court ultimately interpreted the meaning of the word “passage” correctly in light of our conclusion that it is not a part of the recited “means ... for performing a specified function” for purposes of section 112, ¶ 6, and is therefore itself not subject to the construction called for by that statutory provision. In construing a claim limitation, we look to the claim language, the written description, the prosecution history and, if necessary, extrinsic evidence. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83, 39 USPQ2d 1573, 1576-77 (Fed.Cir.1996). Here, the written description states that the structure for the passage includes non-smooth geometries and a conical shape: Although a threaded configuration is shown for the second section, other non-smooth geometries may be used to remove water vapor and cause that water vapor to be trapped in the second section of the bore. For example, a series of ridges may be included in the interior surface of the second section. Alternatively, the second section of the bore may be conical in configuration. As with the threaded or ridged configuration, the conical shape causes a swirling effect on the water vapor to remove that vapor from the analyte slug. ’557 patent, col. 7, lines 13-22 (emphasis added). The written description also distinguishes over prior art geometries as follows: A number of different geometries for the second section are contemplated, including those having an irregular shaped surface or noneylindrical shape. In contrast, the prior art has generally specified that the pneumatic tubing and passageways between the trap and GC are smooth-called. ’557 patent, col. 7, lines 45-50 (emphasis added). All of the “passage” structures contemplated by the written description are thus either non-smooth or conical. In addition, the description expressly distinguishes over prior art passages by stating that those passages are generally smooth-walled. OI has not identified anything in the prosecution history contrary to those statements. Therefore, we conclude that one skilled in the art reading the claims, description, and prosecution history would conclude that the term “passage” in" }, { "docid": "20717880", "title": "", "text": "Schlesinger noted that, [b]eeause in 1972, each spot on an optical disk directly represented an increment of sound, as did each spot in the groove of a vinyl record, if the optical structure was transmissive then reflections from bubbles and dust over it would have been heard as crackles and pops as was the case for dust or scratches on the surface of a vinyl record. If the optical disk contained video information the result would have been “snow” or speckles on the screen as was the case with Laserdisc throughout the 1970s. Id. ¶ 14. According to Dr. Schlesinger, the problems associated with dust and bubbles were obviated in 1980 when Sony an nounced (and patented) an interleaving and error correcting technology that eliminated the misreading of adjacent spots on the disc that resulted from bubbles, dust, or scratches on the surface. The patent teaching the “Sony solution” was included as an essential licensed patent in the CD licenses granted by Philips. See id. ¶¶ 17-22. According to Dr. Schlesinger, the Sony solution made it unnecessary after 1980 to incorporate in the CD-ROM an optical structure that did not transmit light. In post-1980 discs, the optical structure was able to “harmlessly transmit [a fraction of the beam] without the ill effects that were the concern of the '846 [P]atent back in 1972 and 1973.” Id. ¶ 24. CONCLUSION Giving due consideration to the testimony of the witnesses (including Kramer), the court construes the term “non-transmissive” to mean “an optical structure that reduces the transmission of radiant light to the greatest degree practicable consistent with the intended purpose.” This, of course, does not end the matter, and may indeed appear to avoid it. But it is important not to confuse the court’s function under Markman with the role of the jury in deciding a claim of infringement. The court’s obligation is to explain to the jury the meaning of difficult claim terms. Here, as is often the practice in post-Markman patent litigation, the parties have invited the court to expand the scope of the construction to include not only the" }, { "docid": "20717867", "title": "", "text": "transmission mode). Philips proposes that the term be construed as “[a]n optical structure that reflects radiation for reading the information but does not also transmit radiation for reading the information.” The '846 Patent does not provide a definition of “non-transmissive.” Therefore, the court will first look to the teachings of the specification and claim language. A stated object of the invention disclosed in the '846 Patent was to improve on the prior art by provid[ing] a record carrier in which the optical structure is protected against dust particles and damage without the use of a protective layer which is required to satisfy stringent requirements. For this purpose the record carrier according to the invention is characterized in that the optical structure is a radiation-reflecting structure and the carrier substrate is radiation-transmitting, the surface of the carrier substrate more remote from the optical structure forming both the entrance face and the exit face for the read radiation. In this record carrier the carrier substrate itself ensures that dust particles. are sufficiently spaced away from the optical structure. ’846 Patent, Col. 2, 11. 8-21 (emphasis added). The specification describes prior art disclosed in the “Journal of the S.M.P.T.E.” in November of 1979. This prior art used a protective layer on top of the optical structure that allowed the device to be read only in transmission mode. As the beam had to pass through the protective layer to reach the detector, the protective layer had to meet stringent quality standards. See id., Col. 2,11. 6-7. Claim 1 specifies that the substrate under the optical structure is “radiation transmitting”, id., Col. 5, 1. 63, and that the convergent beam of radiation used to read the disc enters the substrate and passes through it to a focused point on the optical structure. Id., Col. 6, 11. 8-11. The use of the word “transmitting” in conjunction with the word “radiation” signifies that the substrate allows light to pass. From this, defendants argue, it follows that only a wow-transmissive optical structure will do the opposite; that is, not allow light to pass through and reach the additional" }, { "docid": "20717877", "title": "", "text": "a plurality of depressions (a) spaced apart in the track direction by intermediate areas (b). A reflective layer (9) extends completely over the intermediate areas (b) and the depressions (a), rendering the entire optical structure reflective and non-transmissive to the incident radiation of the read beam. PH 0744. Philips attempted to differentiate its invention by emphasizing that it read only in reflection mode, a matter that was given scant attention by Feinleib. The second function performed by the substrate is to maintain dust particles, scratches and the like sufficiently far from the plane of the optical structure so that they do not interfere with the read-out of the information. This “dust immunity” results from the fact that in applicant’s construction the optical structure is reflective and is disposed on the surface of the substrate which is remote from the source of the beam, so that the exterior surface (8) of the substrate defines both the entrance plane for the incident beam and the exit plane for the reflected modulated radiation. PH 0745. Perhaps the most telling statement by Philips was made in an attempt to directly distinguish its invention from Feinleib. In essence, the only similarity between the memory unit [in Feinleib] and the record carrier defined in [applicant’s disc] is that they are both optical storage media. There the similarity ends. In applicant’s disc the optical structure is non-transmissive and reflective. Feinleib’s entire memory unit is transmissive (he recovers the information by detecting intensity variations of the light after it has passed through the medium). PH 0751 (emphases in original). Here, Philips used the word “transmissive” to describe the manner in which Feinleib’s memory unit (information structure)functioned, that is, that it read the information in transmission mode. As the intrinsic evidence does not provide a definitive answer to the dispute, the court will finally turn to the extrinsic evidence. As previously emphasized, “[i]n construing claims, the courts focus on what one of ordinary skill in the art at the time of the invention would have understood the term to mean.” Mass. Inst. of Tech v. Abacus Software, 462 F.3d" }, { "docid": "20717884", "title": "", "text": "emerges from the carrier to be captured by a detector on the converse side of the disc. The beam is modulated by the optical structure during its passage through the carrier substrate. . Defendants state that the term requiring construction is simply \"non-transmissive” without the additional qualifying language supplied by Philips. . The term \"non-transmissive” is also found in Claims 6 and 7. .Defendants' accused products allow varying degrees of light to pass through the optical structure. Therefore, they argue that their products fall outside the scope of the non-transmissive claim of the '846 Patent. . In addition to meeting precise thickness requirements, the protective layer in the prior art was required to \"intimately engage” the optical structure in order to prevent the occurrence of local air bubbles between the optical structure and the protective layer. '846 Patent, Col. 1, 11. 59-65. . This layer is referred to in Claim 1 as a \"reflective layer extending over [the] intermediate areas and [the] depressions [in the optical structure]....” '846 Patent, Col. 6, 11. 6-7. . In response to a question at his deposition about whether in 1971 and 1972 it was a matter of concern whether or not the read beam passed through the information layer (optical structure), Kramer responded, “I don’t know. We couldn’t care less. We couldn't care less. It's just that it should reflect enough that we have a good signal.” Kramer Dep. at 120. . The '425 Patent notes that the disc can also be read in the reflection mode: . The Federal Circuit, in reviewing two decisions of the Board affirming the rejection of the application for obviousness, noted that although Feinleib separately suggested (1) a device that employs an optical structure comprised of depressions formed in a substrate, and (2) an optical structure that operates in the reflective mode, there was no \"teaching which would lead one skilled in the art to use those alternatives together.” In re Kramer, 1991 WL 3392, at *2. The Federal Circuit therefore concluded that it was error for the Examiner to reject the application as obvious over Feinleib. Id." }, { "docid": "20717875", "title": "", "text": "information layer 9. The non-transmissive character of the information layer prevents radiation from interacting with either dust or bubbles trapped between the protective layer 10 and the information layer 9 that would in the Feinleib apparatus scatter or reflect the light passing between reflective portions of Feinleib’s reflecting and transmitting areas of his information structure. It is only by the non-transmissive nature of the information structure in the embodiment of Fig. 2 that permits Applicant to avoid interference by dust particles and also permits Applicant to cover the reflective structure with a protective layer 10 to guard against scratching without the necessity for avoiding bub bles trapped between the information structure and the protective layer. Such bubbles would in all probability form light reflecting and scattering [sites] for scattering or reflecting light passing through the permeable areas of the reflective Feinleib information structure and passing back through that structure to interfere with the reading of the information. PH 0393. Philips further stated, [t]he importance of the non-transmissive carrier of the information structure in applicant’s disc is that after the beam passes through the substrate and is intercepted by the information structure it can not thereafter continue through the information structure to the backside of the record carrier where dust particles may also deposit. PH 0492 (emphasis added). Philips attempts to deflect these seemingly conclusive statements by putting the blame on its (prior) prosecuting attorney who, according to Philips, did not fully understand the technology. However, later in the prosecution, after the Examiner rejected the application yet again (on grounds of indefiniteness), Philips’ new attorney argued that [applicant does not see how one can state more clearly that the “optical structure” does not transmit radiation incident on it than by saying that it is “non-transmissive” in the manner specified in the claims. Nor can applicant understand how it could be seriously contended that a man skilled in the art would not be able to determine the meaning of that expression. PH 0621-0622. Philips defined the invention by explaining that [t]he information (such as an audio or video signal) is contained in" }, { "docid": "20717883", "title": "", "text": "the case to assist the court in adjusting any potentially conflicting commitments in the District of Massachusetts. SO ORDERED. . Of the District of Massachusetts, sitting by designation. . The U.S. subsidiary, U.S. Philips Corporation, is also a plaintiff. Collectively, the entities will be referred to as \"Philips.” . Styled after Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). .In addition to argument from counsel, the court heard testimony, much of it in the nature of tutorials, from Dr. Paul Prucnal, Professor of Engineering at Princeton University, and Robert Freedman, Chief Technology Officer for the Optical Disc Manufacturing Division of Crest National Optical Media Company (on behalf of Philips), and from Dr. T.E. Schlesinger, Professor of Electrical Engineering at Carnegie Mellon University (on behalf of defendants). . The optical structure is also referred to as the “information structure.” In addition, the pattern is sometimes referred to as the “crenulated” or \"crenellated” surface. . In transmission mode, the read beam passes through the surface of the carrier substrate and emerges from the carrier to be captured by a detector on the converse side of the disc. The beam is modulated by the optical structure during its passage through the carrier substrate. . Defendants state that the term requiring construction is simply \"non-transmissive” without the additional qualifying language supplied by Philips. . The term \"non-transmissive” is also found in Claims 6 and 7. .Defendants' accused products allow varying degrees of light to pass through the optical structure. Therefore, they argue that their products fall outside the scope of the non-transmissive claim of the '846 Patent. . In addition to meeting precise thickness requirements, the protective layer in the prior art was required to \"intimately engage” the optical structure in order to prevent the occurrence of local air bubbles between the optical structure and the protective layer. '846 Patent, Col. 1, 11. 59-65. . This layer is referred to in Claim 1 as a \"reflective layer extending over [the] intermediate areas and [the] depressions [in the optical structure]....” '846 Patent, Col. 6, 11. 6-7. . In" } ]

[ { "docid": "1106893", "title": "", "text": "of America took, as collateral for its loan, all the assets of the debtor. The debtor signed two security agreements in May 1983; one for equipment and the other for personal property. The security agreement for personal property granted the Bank of America a security interest in the following described personal property. Included, without limitation, were: A. All rights to the payment of money owed or hereafter acquired by Borrower, whether or not earned by performance including, but not limited to, accounts contract rights, chattel papers, instruments and general intangibles ... Bank of America, therefore, had a security interest in all of debtor’s personal property. The only dispute is to whether they had a perfected security interest in the proceeds from a settlement of a legal dispute with McDonald’s Corporation, Simon Marketing and LAOOC (hereinafter “McDonald’s”). On May 2, 1983, debtor executed a UCC-1 Financing Statement, which was filed on May 23,1983. At the time of filing there was no lawsuit between debtor and McDonald’s. The financing statement covered the following types of property: All furniture, fixtures, equipment, personal property, machinery, inventory and accounts receivable now owned or hereafter acquired. All equipment, now owned or hereafter acquired, including but not limited to all of debtor’s manufacturing and office equipment. The debtor subsequently defaulted on its loan from Bank of America. The SBA honored its guarantee of the loan and the Bank of America assigned to the SBA its interest in the loan as well as the collateral and the documents evidencing its secured interest in the collateral. The Bank of America also filed a UCC-2 form showing the assignment to the SBA. On June 14, 1984 the debtor filed its Chapter 11 bankruptcy petition. The case was subsequently converted to a Chapter 7 liquidation by Order entered November 9, 1984. David Gill was appointed as Chapter 7 trustee. The adversary proceeding involves a dispute between the Chapter 7 trustee and a secured creditor, the United States (on behalf of the U.S. Small Business Administration), over who has the superior lien to the remaining settlement proceeds of an action in state" } ]

[ { "docid": "5172565", "title": "", "text": "9104(7) falls within the third category. This is evidenced by comment 7 of the 1972 comments which states: Rights under life insurance and other policies, and deposit accounts, are often put up as collateral. Such transactions are often quite special, do not fit easily under a general commercial statute and are adequately covered by existing law. Paragraphs (g) and (1) make appropriate exclusions, but provision is made for coverage of deposit accounts and certain insurance money as proceeds. I am persuaded that Meridian did have a properly perfected security interest in the proceeds of the chose in action. A chose in action is personal property. Black’s Law Dictionary defines a chose of action as: A thing in action and is right of bringing an action or right to recover a debt or money. Right of proceeding in a court of law to procure payment of sum of money, or right to recover a personal chattel or a sum of money by action. A personal right not reduced into possession, but recoverable by a suit at law. A right to personal things of which the owner has not the possession, but merely a right of action for their possession. The phrase includes all personal chattels which are not in possession; and all property in action which depends entirely on contracts express or implied. A right to receive or recover a debt, demand, or damages on a cause of action ex contrac-tu or for a tort or omission of a duty. A right to recover by suit a personal chattel. Assignable rights of action ex con-tractu and perhaps ex delicto. Personalty to which the owner has a right of possession in future, or a right of immediate possession, wrongfully withheld. Black’s Law Dictionary at 219 (5th ed. 1979) (citations omitted). Bell had a contractual right to receive payment from Globe per the insurance contract entered into by Globe and Bell. This contractual right to receive payment qualifies as a chose in action. See Merchants National Bank of Mobile v. Ching, 681 F.2d 1383, 1388-89 (11th Cir.1982) (a claim for damages under breach" }, { "docid": "562551", "title": "", "text": "lawsuit arising solely from tort) constitutes a “general intangible” covered by the Bank’s security agreement. See, e.g., Merchants Nat’l Bank of Mobile v. Ching, 681 F.2d 1383, 1388 (8th Cir.1982); Gill v. United States (In re Boogie Enters., Inc.), 79 B.R. 4, 6 (C.D.Cal.1987); Great Western Nat’l Bank v. Hill, 27 Oregon App. 893, 557 P.2d 1367 (1976); Freidman, Lobe & Block v. C.L.W. Corp., 9 Wash.App. 319, 512 P.2d 769 (1973). This rule, the Bank claims, applies even when the lawsuit did not exist at the time the security agreement was entered into and the settlement not reached until after bankruptcy. See Virginia Nat’l Bank v. Phoenix Marine Corp. (In re Phoenix Marine Corp.), 20 B.R. 424, 426 (Bktcy.E.D.Va.1982). Neither Hanson nor the trustee has provided any authority to the contrary. . The law firm of Lindquist & Vennum, counsel who represented debtor in the bankruptcy proceeding, also filed an opposition to the motion for approval of the settlement. Lindquist & Vennum specifically objected to paragraph 15 of the proposed stipulation, believing that it suggested that the claims of Steven Hanson and those of Lindquist & Vennum could somehow be subordinated and deprived of the distributions to which they might rightfully be entitled under sections 507 and 726 of the Bankruptcy Code. Lindquist & Vennum's opposition, however, acknowledged that paragraph 15 might be considered ambiguous and unclear in this respect. In response, the Bank and the trustee have prepared a clarification of paragraph 15 which will become part of the settlement agreement upon the court’s having approved it. That clarification specifically indicates that paragraph 15 in no way is to affect any priority claims and that paragraph 15 applies only to general allowed unsecured claims; clarifies the Bank’s agreement to subordinate its unsecured claim; and makes clear that paragraph 15 in no way affects the claims of Hanson and Lindquist & Vennum as they might be allowed under the Bankruptcy Code. The court’s approval of this settlement is conditioned upon the clarification of paragraph 15 becoming part of the settlement agreement which should alleviate the concerns of Lindquist &" }, { "docid": "5172560", "title": "", "text": "OPINION AND ORDER VanARTSDALEN, Senior District Judge. Introduction Meridian Bank (Meridian) appeals from the decision of Bankruptcy Judge Scholl in which the bankruptcy court concluded Meridian did not have a perfected security interest in the proceeds of a chose in action, 97 B.R. 193 (1989). The debtor, Bell Fuel Corporation (Bell) signed a security agreement with Meridian Bank on February 25, 1985. The security agreement was signed in connection with a Line and Term Loan Agreement to secure payment of sums lent to Bell by Meridian. The security agreement in pertinent part states: Part 6: “Collateral” as used in this Security Agreement refers to the types of property initiated by the Borrower and checked below: (x) ACCOUNTS: Meaning all of [the Debtor’s] present and future accounts, contracts, chattel paper, instruments and documents, and all other rights to the payment of money, including but not limited to any Specific Property described below, whether or not yet earned, for services rendered or goods sold, consigned, leased or furnished by the Borrower, together with all general intangibles, guarantees and securities relating to any of the foregoing, and all returned, reclaimed or repossessed goods the sale, consignment, lease or other furnishing of which shall have given or may give rise to any of the foregoing, including, without limitation, the right of stoppage in transit. (emphasis added). The parties agree that the Bank duly filed financing statements pursuant to the Uniform Commercial Code (U.C.C.) which financing statement recited that a security interest was taken in, inter alia, (a) All Debtor’s equipment, inventory, accounts, contract rights, and general intangibles, whether now or hereafter acquired; (b) All proceeds and all products of the property described in Paragraph (a) above..:. On or about May 7, 1984, a construction contractor performing work on property adjacent to Bell’s facility damaged Bell’s underground pipelines. As a result a substantial quantity of Bell’s oil was lost and its business was interrupted. Bell submitted a timely claim for loss of fuel oil, damage to pipelines, and loss of business to Royal Insurance Company of America and Globe Indemnity Company (Globe) pursuant to a" }, { "docid": "5172564", "title": "", "text": "between Meridian and Bell gave Meridian a security interest in all of Bell’s general intangibles then owned or after acquired. Section 9106 defines a general intangible as, “Any personal property (including things in action) other than goods, accounts, chattel paper, documents, instruments and money.” The official comment to section 9106 states: The term “general intangibles” brings under this Article miscellaneous types of contractual rights and other personal property which are used or may become customarily used as commercial securi-ty_ Note that this catch-all definition does not apply to money or other types of intangibles which are specifically excluded from the coverage of the Article (Section 9-104)_ Section 9104, Uniform Commercial Code provision 9-104, excludes twelve types of transactions from the scope of Article 9. Section 9104’s exclusions fall generally under three main categories: first, transactions that are subject to overriding governmental interests; second, transactions that are nonconsensual; and third, transactions that are out of the mainstream of commercial financing. See W. Hawkland, R. Lord, and C. Lewis, Uniform Commercial Code Series § 9-104:01 (1988). Section 9104(7) falls within the third category. This is evidenced by comment 7 of the 1972 comments which states: Rights under life insurance and other policies, and deposit accounts, are often put up as collateral. Such transactions are often quite special, do not fit easily under a general commercial statute and are adequately covered by existing law. Paragraphs (g) and (1) make appropriate exclusions, but provision is made for coverage of deposit accounts and certain insurance money as proceeds. I am persuaded that Meridian did have a properly perfected security interest in the proceeds of the chose in action. A chose in action is personal property. Black’s Law Dictionary defines a chose of action as: A thing in action and is right of bringing an action or right to recover a debt or money. Right of proceeding in a court of law to procure payment of sum of money, or right to recover a personal chattel or a sum of money by action. A personal right not reduced into possession, but recoverable by a suit at" }, { "docid": "16591504", "title": "", "text": "noted, “[a] thing in action is designated a chose in action and means literally a thing in aetion.” Peavy Lumber Co., 130 So.2d at 340. The term chose in action is utilized throughout the remainder of this opinion. A chose in action is “a personal right to demand money or property by an action.” Peavy Lumber Co., 130 So.2d at 340. The term includes an infinite variety of contracts, covenants, and promises which confer on one party a right to recover a personal chattel or a sum of money from another by action. Sheldon v. Sill, 49 U.S. (8 How.) 441, 12 L.Ed. 1147 (1850). For example, a chose in action includes (i) money due under a contract, Peavy Lumber Co., 130 So.2d at 341, (ii) damages arising from a breach of a contract, Merchants Nat'l Bank of Mobile v. Ching, 681 F.2d 1383, 1389 (11th Cir.1982), (iii) a check, Tillery v. State, 44 Ala.App. 369, 209 So.2d 432, 435 (1968), (iv) an interest in a pension and profit-sharing plan, In re Wilson, 56 B.R. 693, 696 (Bankr.M.D.Ala.1986), and (v) the right to receive payment under an insurance contract and the proceeds from such policy, see Robinson v. Eppes, 252 Ala. 242, 40 So.2d 326, 327 (1949). Additionally, intangible personal property like instruments and securities for the payment of money such as bonds and promissory notes, book entry accounts, an interest in an insurance policy, judgments, and shares of stock are within the perimeters of what is a chose in action. Maricopa County v. Trustees of Arizona Lodge No. 2., 52 Ariz. 329, 80 P.2d 955 (1938). Consideration of what is and is not a chose in action reveals that a treasury note is one of the set of rights to payment of monies within the demarcation of what is a chose in action. The owner of a treasury note does not have possession or actual enjoyment of the monies owed under the terms of the treasury note. He/she only has a right to payment. See, Pan American Production Co. v. United Lands Co., Inc., 96 F.2d 26, 27 (5th" }, { "docid": "14756434", "title": "", "text": "the nature of the legal interest which the taxpayer had in the property, but federal law determines the priority of competing liens). See also Aetna Insurance Co. v. Texas Thermal Industries, 591 F.2d at 1038-39. Under Alabama’s version of the Uniform Commercial Code, an account is “any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper.” 1975 Ala. Code § 7-9-106. Our recent opinion in Merchants National Bank of Mobile v. Ching, 681 F.2d 1383 (11th Cir.1982), provides a helpful background in delineating the boundaries of what constitutes an account. In Merchants National Bank, as in the present case, we were confronted with the question whether certain claims by a contractor constituted an account under Alabama law for purposes of a security interest held by a bank. In finding that one claim was an account, while three others were not, we drew a distinction between a claim for payment that was specifically covered and incorporated in the contractual agreement and those claims for which no contractual provision existed. For example, we found that the contrae tor’s claims for items not listed in the contract or for actions that were taken as a result of the owner’s breach of contract did not constitute an account. Id,., at 1388-89. In contrast, however, we found that the contractor’s claim for payment for rework caused by the owner’s actions was an account because the contract authorized that the contractor “shall be entitled to an equitable adjustment in the event that rework is caused by the actions of others.” Id., at 1386-87. We also held that the determination of when an account comes into existence is not dependent upon whether an exact amount of payment claimed is known; instead, we determined that the relevant inquiry is whether the payment is for services rendered. Id., at 1387. Consequently, in order to determine both whether P & S had an account and when that account arose, we must turn to P & S’s contractual agreement with Atlantic States. C. P & S’s Rights under" }, { "docid": "5172574", "title": "", "text": "the insurance settlement is proceeds. However, it should be noted that even without the “proceeds” language in section 9104(7), the insurance received on the collateral here would still be within Article 9 because section 9104(7) itself does not apply to all forms of insurance policies. Rather, it only applies to “noncommercial” or “special” policies outside the mainstream of commercial financing. See Section 9104 Official Comment 7. The official comment notes that the exclusion goes to “[rjights under life insurance and other policies,” and that such special transactions are adequately covered by existing law. The business interruption insurance which is at issue here is a distinctly commercial type of insurance and one which the Code drafters undoubtedly intended to include in Article 9. The bankruptcy court thought it proper to look at the claim underlying the chose itself. The bankruptcy court made much of the fact that the underlying litigation began when Globe insurance refused to pay Bell’s claim pursuant to the insurance contract. The bankruptcy court noted that if the insurance claim was originally paid to Bell, Meridian would not now be claiming an interest in the proceeds of the litigation settlement. That observation seems irrelevant. The insurance claim was not paid and Meridian had a properly perfected security interest in the chose in action at issue. The statute permits a security interest to be taken in a chose in action, and this court is bound to give the statute its effect. The bankruptcy court’s limitation of a chose in action by looking at the claim underlying the chose is unwarranted. Section 9106 defines general intangibles to include all choses in action not otherwise excluded; it is not limited to choses which are derived from certain underlying claims. Section 9104(11)—Tort Exception The bankruptcy court also held that section 9104(11) excludes from Article 9 a transfer “in whole or part of any claim arising out of a tort.” This section apparently recognizes the general common law rule that tort claims are not assignable. However, section 9104(11) simply is not applicable to this context. Bell sued Globe Insurance in federal court when" }, { "docid": "5172575", "title": "", "text": "to Bell, Meridian would not now be claiming an interest in the proceeds of the litigation settlement. That observation seems irrelevant. The insurance claim was not paid and Meridian had a properly perfected security interest in the chose in action at issue. The statute permits a security interest to be taken in a chose in action, and this court is bound to give the statute its effect. The bankruptcy court’s limitation of a chose in action by looking at the claim underlying the chose is unwarranted. Section 9106 defines general intangibles to include all choses in action not otherwise excluded; it is not limited to choses which are derived from certain underlying claims. Section 9104(11)—Tort Exception The bankruptcy court also held that section 9104(11) excludes from Article 9 a transfer “in whole or part of any claim arising out of a tort.” This section apparently recognizes the general common law rule that tort claims are not assignable. However, section 9104(11) simply is not applicable to this context. Bell sued Globe Insurance in federal court when Globe refused to pay under the insurance contract that protected Bell against business interruption. Bell’s claim was a contract claim pure and simple. See Appeal Exhibit E, Complaint in Civil Action No. 85-2575; see also Polito v. Continental Casualty Co., 689 F.2d 457, 460 (3d Cir.1982) (court recognized that the traditional remedy for failure to pay a claim is for breach of contract). Pennsylvania law states that insurance policies are contracts to pay money. Pennsylvania courts have not followed other jurisdictions which permit tort actions for failure to pay an insurance claim. See D’Ambrosio v. Pennsylvania National Mutual Life Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981), aff'g 262 Pa.Super. 331, 396 A.2d 780 (1978); see also Giovannitti v. Nationwide Insurance Co., 690 F.Supp. 1439 (W.D.Pa.1988) (tracing Pennsylvania law on insurance contract theory). Loss Payee Clause Meridian was not named as the loss payee on the insurance contract at issue. However, since I have concluded that Meridian has a superior interest in the insurance proceeds due to its first priority perfected security interest in" }, { "docid": "6221525", "title": "", "text": "novo. F.D.I.C. v. Ernst & Young, 967 F.2d 166, 169 (5th Cir.1992); Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991) (en bane), cert. denied, — U.S. -, 112 S.Ct. 1280, 117 L.Ed.2d 506 (1992). General Intangible or Instrument The UCC defines a general intangible merely by stating' what is not a general intangible. A general intangible is essentially a bundle of rights such as those inherent in a franchise, a chose in action, a copyright, or an annuity. See Flanigan’s Enterps., Inc. v. Barnett Bank of Naples, 614 So.2d 1198, 1201 (Fla.Ct.App. 5th Dist.1993) (dicta) (citing 73 C.J.S. Property § 15 (1983)); see also In re Holiday Intervals, Inc., 931 F.2d 500, 503 (8th Cir.1991) (land sale installment contract general intangible); In re Nix, 864 F.2d 1209, 1211 (5th Cir.1989) (Keogh plan general intangible); In re Hartman, 102 B.R. 90, 93 (Bankr.N.D.Tex.1989) (one-half partnership interest general intangible); In re Bell Fuel Corp., .99 B.R. 602, 604 (Bankr.E.D.Pa.) (contractual right to receive insurance constitutes chose in action and thus general intangible), aff'd, 891 F.2d 281 (3d Cir.1989); Gold Medal Prods., Inc. v. Love Enterps., Inc., 766 S.W.2d 759, 761 (Mo.Ct.App.1989) (assignment of right to proceeds from pending lawsuit general intangible); cf Smith v. Mark Twain Nat’l Bank, 805 F.2d 278, 285 (8th Cir.1986) (repurchase agreement and certificate of deposit instruments); In re Staff Mortgage & Inv. Corp., 625 F.2d 281, 284 (9th Cir.1980) (promissory note secured by deeds of trust instrument). There is a dearth of case law on the classification of general intangibles. In fact, most of the cases focus on the difference between an account and a general intangible. See, e.g., In re Slippery Rock Forging, Inc., 99 B.R. 679, 681 (Bankr.W.D.Pa.1989) (settlement of preference action found not to be account and by default general intangible). In two of the eases that were faced with the issue of general intangible versus instrument, the courts in each instance tersely concluded that the bundle of rights in question were general intangibles. See In re ESM Government Secs., Inc., 812 F.2d 1374, 1377 (11th Cir.1987) (right to payment of funds" }, { "docid": "562550", "title": "", "text": "is in the best interests of the estate. For the foregoing reasons, IT IS HEREBY ORDERED that: The Stipulation, Release and Agreement dated March 8, 1988, as amended by that certain Clarification of Paragraph 15 as yet undated, by and between the Bank of New England, N.A., the bankruptcy estate of Hanson Industries, Inc., and the trustee of the bankruptcy estate of Hanson Industries, Inc., which settles and resolves the case of “The Bank of New England, N.A., Plaintiff v. Hanson Industries, Inc. and Steven D. Hanson”, (Adv. No. 4-87-0191) is hereby approved. This approval shall in no way affect the continuing rights of Steven D. Hanson in the litigation nor the rights Steven D. Hanson and/or Lindquist & Ven-num may have as claimants, in any status, under the Bankruptcy Code. . One of the areas of contention between the trustee and the Bank is apparently the question of whether the Bank does have a security interest in these proceeds. The Bank argues that the right to proceeds from an impending lawsuit (other than a lawsuit arising solely from tort) constitutes a “general intangible” covered by the Bank’s security agreement. See, e.g., Merchants Nat’l Bank of Mobile v. Ching, 681 F.2d 1383, 1388 (8th Cir.1982); Gill v. United States (In re Boogie Enters., Inc.), 79 B.R. 4, 6 (C.D.Cal.1987); Great Western Nat’l Bank v. Hill, 27 Oregon App. 893, 557 P.2d 1367 (1976); Freidman, Lobe & Block v. C.L.W. Corp., 9 Wash.App. 319, 512 P.2d 769 (1973). This rule, the Bank claims, applies even when the lawsuit did not exist at the time the security agreement was entered into and the settlement not reached until after bankruptcy. See Virginia Nat’l Bank v. Phoenix Marine Corp. (In re Phoenix Marine Corp.), 20 B.R. 424, 426 (Bktcy.E.D.Va.1982). Neither Hanson nor the trustee has provided any authority to the contrary. . The law firm of Lindquist & Vennum, counsel who represented debtor in the bankruptcy proceeding, also filed an opposition to the motion for approval of the settlement. Lindquist & Vennum specifically objected to paragraph 15 of the proposed stipulation, believing that it" }, { "docid": "5172571", "title": "", "text": "the Code clarified the line between “original” and “derivative” insurance interest, that is,-(l) a direct security interest versus, (2) an interest in insurance proceeds arising from the destruction or change in the underlying collateral. Transactions falling in the first class, such as the assignment of cash surrender value of a life insurance policy would be exempt from Article 9 under section 9104(7). Transactions falling in the second class are not the type which the drafters meant to exclude. In PPG Industries v. Hartford Insurance Company, 531 F.2d 58 (2d Cir.1976), the court discussed the difference between original and derivative interests in an insurance policy. The court stated: [I]t should be apparent that this exclusion applies only to situations where the parties to a security agreement attempt to create a direct security interest in an insurance policy by making the policy itself the immediate collateral securing the transaction. For example, § 9-104(g) would be triggered in cases where a debtor uses his life insurance policy as a means for securing a debt owed to the insurer. In contrast, there is no basis for concluding that the statutory exclusion was intended to extend to security agreements which both create a direct security interest in inventory and/or equipment and require the debtor to provide his creditor with further protection by insuring the collateral. PPG, 531 F.2d at 60. See also Nolin Production Credit Ass’n v. Stone (In re Stone), 52 B.R. 305 (Bankr.W.D.Ky.1985) (monies received by debtor from tortfeasor after destruction of collateral was proceeds and therefore subject to the security interest); Virginia National Bank v. Phoenix Marine Corp. (In re Phoenix Marine), 20 Bankr. 424, 426 (Bankr.E.D.Va.1982) (secured party’s perfected security interest in general intangibles covered a chose in action and the secured party subsequently had a perfected security interest in the proceeds that resulted from the settlement of the suit); Kahn v. Capital Bank, 384 So.2d 976 (Fla.App.1980) (section 9104(7), applies to the creation of a security interest in an insurance policy itself, not insurance of collateral); First National Bank of Highland v. Merchants Mutual Insurance Co., 65 A.D.2d 59, 410" }, { "docid": "5172566", "title": "", "text": "law. A right to personal things of which the owner has not the possession, but merely a right of action for their possession. The phrase includes all personal chattels which are not in possession; and all property in action which depends entirely on contracts express or implied. A right to receive or recover a debt, demand, or damages on a cause of action ex contrac-tu or for a tort or omission of a duty. A right to recover by suit a personal chattel. Assignable rights of action ex con-tractu and perhaps ex delicto. Personalty to which the owner has a right of possession in future, or a right of immediate possession, wrongfully withheld. Black’s Law Dictionary at 219 (5th ed. 1979) (citations omitted). Bell had a contractual right to receive payment from Globe per the insurance contract entered into by Globe and Bell. This contractual right to receive payment qualifies as a chose in action. See Merchants National Bank of Mobile v. Ching, 681 F.2d 1383, 1388-89 (11th Cir.1982) (a claim for damages under breach of contract is properly categorized as a chose in action); Gill v. United States (In re Boogie Enterprises), 79 B.R. 4 (C.D.Cal.1987) (lawsuit was a general intangible covered by the financing statement even though no lawsuit had been commenced at the time the financing statement was filed); Virginia National Bank v. Phoenix Marine Corporation (In re Phoenix Marine), 20 B.R. 424 (Bankr.E.D.Va.1982) (proceeds of lawsuit falls within definition of general intangible). When Globe refused to pay the claim, Bell’s cause of action arose. It is unclear from the record exactly when the cause of action arose. Bell brought suit in federal court in July, 1985. Meridian’s security interest arose in February, 1985. If the chose in action existed before February, 1985, it would have been covered by the language that gave Meridian a security interest in all “then existing” general intangibles. If the chose came into being after February, 1985, Meridian would still have a perfected security interest in the general intangible per the “after acquired” property clause in the security agreement. Section 9104(7) excludes" }, { "docid": "5172561", "title": "", "text": "and securities relating to any of the foregoing, and all returned, reclaimed or repossessed goods the sale, consignment, lease or other furnishing of which shall have given or may give rise to any of the foregoing, including, without limitation, the right of stoppage in transit. (emphasis added). The parties agree that the Bank duly filed financing statements pursuant to the Uniform Commercial Code (U.C.C.) which financing statement recited that a security interest was taken in, inter alia, (a) All Debtor’s equipment, inventory, accounts, contract rights, and general intangibles, whether now or hereafter acquired; (b) All proceeds and all products of the property described in Paragraph (a) above..:. On or about May 7, 1984, a construction contractor performing work on property adjacent to Bell’s facility damaged Bell’s underground pipelines. As a result a substantial quantity of Bell’s oil was lost and its business was interrupted. Bell submitted a timely claim for loss of fuel oil, damage to pipelines, and loss of business to Royal Insurance Company of America and Globe Indemnity Company (Globe) pursuant to a business interruption insurance policy. Globe accepted the claim for loss of oil, but rejected the other claims. As a result, Bell filed Civil Action No. 85-2575 in the Eastern District of Pennsylvania in July, 1985. On January 17, 1986, Judge O’Neill concluded that Globe was required to pay for the business interruption losses that occurred as a result of the pipeline damage. However, Judge O’Neill did not determine the amount of damages for which Globe would be liable. Before this liability amount could be determined, Bell filed for bankruptcy on June 16,1988. Bell later agreed to accept $130,000 for the loss and on September 16, 1988, the bankruptcy court approved of this settlement. Ruling Below Meridian’s security agreement, which was signed in February, 1985, covered all of Bell’s general intangibles then owned or after acquired. Meridian’s position is that Bell’s action against Globe was a chose in action and, under Pennsylvania law, a chose in action is a general intangible. See 13 Pa.Cons.Stat. § 9106. Therefore when the chose in action settled, Meridian had a" }, { "docid": "5172576", "title": "", "text": "Globe refused to pay under the insurance contract that protected Bell against business interruption. Bell’s claim was a contract claim pure and simple. See Appeal Exhibit E, Complaint in Civil Action No. 85-2575; see also Polito v. Continental Casualty Co., 689 F.2d 457, 460 (3d Cir.1982) (court recognized that the traditional remedy for failure to pay a claim is for breach of contract). Pennsylvania law states that insurance policies are contracts to pay money. Pennsylvania courts have not followed other jurisdictions which permit tort actions for failure to pay an insurance claim. See D’Ambrosio v. Pennsylvania National Mutual Life Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981), aff'g 262 Pa.Super. 331, 396 A.2d 780 (1978); see also Giovannitti v. Nationwide Insurance Co., 690 F.Supp. 1439 (W.D.Pa.1988) (tracing Pennsylvania law on insurance contract theory). Loss Payee Clause Meridian was not named as the loss payee on the insurance contract at issue. However, since I have concluded that Meridian has a superior interest in the insurance proceeds due to its first priority perfected security interest in the chose in action, the failure of Meridian to actually have itself named as loss payee on the policy is of no moment. Section 9104(8)—Judgment Exception The bankruptcy court mentions that section 9104(8) might possibly be relevant to the present issue. That section excludes transfers of “a right represented by a judgment (other than a judgment taken on a right to payment which was collateral).” However, the bankruptcy court apparently did not rest its decision on that ground. In any event, section 9104(8) generally applies to transfers to a third party by a holder of a right to judgment and is therefore inapplicable in this case. Cross Appeal The Unsecured Creditor’s Committee (Committee) appeals the bankruptcy court’s rejection of its argument that the security agreement relates only to certain general intangibles, that is, general intangibles relating to accounts, contracts, chattel paper, instruments and documents and all other rights to the paymennt of money. The bankruptcy court properly refused to give the security agreement this strained interpretation. The security agreement was obviously intended to reach all" }, { "docid": "16591503", "title": "", "text": "its lien by obtaining possession. Henry Tyler’s lien perfection occurred under Ala.Code § 6-9-40(2) (1993) only if the treasury note is not a thing in action. If the treasury note is a thing in action, the recording of the certificate of judgment did not cause a lien to attach because it is not subject to levy and sale under execution. Just what a “thing in action” is one of the common law concepts usually no longer taught in law school and rarely understood by attorneys. It describes the type of right to personal property for which an owner does not have actual or constructive possession such as a promise by one party to pay monies owed to another. For the owner to obtain possession, a lawsuit must be brought. Peavy Lumber Co. v. O.E. Murchison, 272 Ala. 251, 130 So.2d 338, 340 (1961). Another name used for a thing in action is chose in action. Peavy Lumber Co., 272 Ala. 251, 130 So.2d at 340. These terms are used interchangeably. As the Alabama Supreme Court noted, “[a] thing in action is designated a chose in action and means literally a thing in aetion.” Peavy Lumber Co., 130 So.2d at 340. The term chose in action is utilized throughout the remainder of this opinion. A chose in action is “a personal right to demand money or property by an action.” Peavy Lumber Co., 130 So.2d at 340. The term includes an infinite variety of contracts, covenants, and promises which confer on one party a right to recover a personal chattel or a sum of money from another by action. Sheldon v. Sill, 49 U.S. (8 How.) 441, 12 L.Ed. 1147 (1850). For example, a chose in action includes (i) money due under a contract, Peavy Lumber Co., 130 So.2d at 341, (ii) damages arising from a breach of a contract, Merchants Nat'l Bank of Mobile v. Ching, 681 F.2d 1383, 1389 (11th Cir.1982), (iii) a check, Tillery v. State, 44 Ala.App. 369, 209 So.2d 432, 435 (1968), (iv) an interest in a pension and profit-sharing plan, In re Wilson, 56 B.R." }, { "docid": "5172567", "title": "", "text": "of contract is properly categorized as a chose in action); Gill v. United States (In re Boogie Enterprises), 79 B.R. 4 (C.D.Cal.1987) (lawsuit was a general intangible covered by the financing statement even though no lawsuit had been commenced at the time the financing statement was filed); Virginia National Bank v. Phoenix Marine Corporation (In re Phoenix Marine), 20 B.R. 424 (Bankr.E.D.Va.1982) (proceeds of lawsuit falls within definition of general intangible). When Globe refused to pay the claim, Bell’s cause of action arose. It is unclear from the record exactly when the cause of action arose. Bell brought suit in federal court in July, 1985. Meridian’s security interest arose in February, 1985. If the chose in action existed before February, 1985, it would have been covered by the language that gave Meridian a security interest in all “then existing” general intangibles. If the chose came into being after February, 1985, Meridian would still have a perfected security interest in the general intangible per the “after acquired” property clause in the security agreement. Section 9104(7) excludes “a transfer of an interest or claim in or under any policy of insurance, except with respect to proceeds (section 9306) and priorities in proceeds (section 9312).” The bankruptcy court concluded that the payment of settlement funds pursuant to the chose in action was excluded from Article 9 because the underlying claim in the chose was based on the insurance contract. The bankruptcy court misreads the exclusion here. The exclusion in section 9104(7) does not apply if the transfer of an interest or claim under a policy of insurance is “with respect to proceeds.” Section 9306(a) in pertinent part states: “Proceeds” includes whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds. Insurance payable by reason of loss or damage to the collateral is proceeds except to the extent that it is payable to a person other than a party to the security agreement. (emphasis added). The first sentence of section 9306(a) makes clear that the settlement of the litigation, which produced $130,000.00, was proceeds of the chose in action." }, { "docid": "5172562", "title": "", "text": "business interruption insurance policy. Globe accepted the claim for loss of oil, but rejected the other claims. As a result, Bell filed Civil Action No. 85-2575 in the Eastern District of Pennsylvania in July, 1985. On January 17, 1986, Judge O’Neill concluded that Globe was required to pay for the business interruption losses that occurred as a result of the pipeline damage. However, Judge O’Neill did not determine the amount of damages for which Globe would be liable. Before this liability amount could be determined, Bell filed for bankruptcy on June 16,1988. Bell later agreed to accept $130,000 for the loss and on September 16, 1988, the bankruptcy court approved of this settlement. Ruling Below Meridian’s security agreement, which was signed in February, 1985, covered all of Bell’s general intangibles then owned or after acquired. Meridian’s position is that Bell’s action against Globe was a chose in action and, under Pennsylvania law, a chose in action is a general intangible. See 13 Pa.Cons.Stat. § 9106. Therefore when the chose in action settled, Meridian had a perfected security interest in the proceeds as it was a “general intangible.” The bankruptcy court rejected this rather straightforward analysis on two grounds. First, the bankruptcy court stated, “[T]he ‘business interruption’ loss which underlay the [Bell’s] claim against the insurers here, which generated the fund, appears to be in tort.” 13 Pa.Cons.Stat. § 9104(11). Second, the bankruptcy court concluded that Meridian did not have a perfected security interest in the proceeds of the settlement because the funds came from an insurance policy and were therefore excluded from Article 9 of the UCC (Secured Transactions) which excludes “a transfer of an interest or claim in or under any policy of insurance, except as provided with respect to proceeds (section 9306) and priorities in proceeds (section 9312).” 13 Pa.Cons.Stat. § 9104(7). I conclude that Meridian did have a properly perfected security interest in the proceeds of the chose in action at issue. I will reverse the decision of the bankruptcy court. Discussion The starting point of my analysis is, of course, the statute itself. The security agreement" }, { "docid": "5172563", "title": "", "text": "perfected security interest in the proceeds as it was a “general intangible.” The bankruptcy court rejected this rather straightforward analysis on two grounds. First, the bankruptcy court stated, “[T]he ‘business interruption’ loss which underlay the [Bell’s] claim against the insurers here, which generated the fund, appears to be in tort.” 13 Pa.Cons.Stat. § 9104(11). Second, the bankruptcy court concluded that Meridian did not have a perfected security interest in the proceeds of the settlement because the funds came from an insurance policy and were therefore excluded from Article 9 of the UCC (Secured Transactions) which excludes “a transfer of an interest or claim in or under any policy of insurance, except as provided with respect to proceeds (section 9306) and priorities in proceeds (section 9312).” 13 Pa.Cons.Stat. § 9104(7). I conclude that Meridian did have a properly perfected security interest in the proceeds of the chose in action at issue. I will reverse the decision of the bankruptcy court. Discussion The starting point of my analysis is, of course, the statute itself. The security agreement between Meridian and Bell gave Meridian a security interest in all of Bell’s general intangibles then owned or after acquired. Section 9106 defines a general intangible as, “Any personal property (including things in action) other than goods, accounts, chattel paper, documents, instruments and money.” The official comment to section 9106 states: The term “general intangibles” brings under this Article miscellaneous types of contractual rights and other personal property which are used or may become customarily used as commercial securi-ty_ Note that this catch-all definition does not apply to money or other types of intangibles which are specifically excluded from the coverage of the Article (Section 9-104)_ Section 9104, Uniform Commercial Code provision 9-104, excludes twelve types of transactions from the scope of Article 9. Section 9104’s exclusions fall generally under three main categories: first, transactions that are subject to overriding governmental interests; second, transactions that are nonconsensual; and third, transactions that are out of the mainstream of commercial financing. See W. Hawkland, R. Lord, and C. Lewis, Uniform Commercial Code Series § 9-104:01 (1988). Section" }, { "docid": "4675963", "title": "", "text": "425,000 Net $ 569,243 The court finds that Vistar Bank had a valid security interest in partner contributions of at least $377,889.00, and therefore the debtor correctly subtracted that amount from the liquidation proceeds. Vis-tar Bank’s security interest attached to all of the debtor’s assets, tangible or intangible, including after acquired property. The security agreement listed the following collateral, inter alia, as security for the bank’s loans: general intangibles; choses in action ... rights to receive statutorily mandated contributions; all partnership property and partnership assets, as defined in the Uniform Partnership Act. The court believes Vistar Bank’s security interest probably covered the debtor’s right to receive future contributions from partners to cover any partnership liabilities. On dissolution of a partnership, the part nership has a right to contribution from its general partners if its liabilities exceed the value of partnership property. D.C.Code Ann. § 41-139(1); Neb.Rev.Stat. § 67-340(a). This right constitutes a chose in action. See Black’s Law Dictionary 219 (5th ed. 1979). As a general rule, a security interest in general intangibles includes choses in actions. See D.C.Code Ann. § 28:9-106; Neb.Rev.StatU.C.C. § 9-106. Where the parties include an after acquired property clause, inchoate choses in action are brought within the grasp of the security interest. In re Bell Fuel Cory., 99 B.R. 602, 605-606 (E.D.Pa. aff'd mem., 891 F.2d 281, 282 (3d Cir.1989)); In re Boogie Enters., Inc., 79 B.R. 4 (C.D.Cal.1987); Parker Roofing Co. v. Pacific First Fed. Sav. Bank, 59 Wash.App. 151, 157-59, 796 P.2d 732, 735-36 (Wash.Ct.App.1990); see also Christison v. United States, 960 F.2d 613, 617 (7th Cir.1992); In re Don Connolly Constr. Co., 110 B.R. 976, 978 (Bankr.M.D.Fla.1990). But see Capital Nat’l Bank of New York v. McDonald’s Corp., 625 F.Supp. 874, 878-79 (S.D.N.Y.1986) (security interest in general intangibles does not reach truly inchoate chose in action). In this regard, the parties’ intent controls. Parker Roofing, 59 Wash.App. at 155, 157, 796 P.2d at 734, 735. The after acquired property clause evidences an intent to include inchoate choses of action as collateral. See Bell Fuel, 99 B.R. at 603; Parker Roofing, 59 Wash.App." }, { "docid": "5172572", "title": "", "text": "In contrast, there is no basis for concluding that the statutory exclusion was intended to extend to security agreements which both create a direct security interest in inventory and/or equipment and require the debtor to provide his creditor with further protection by insuring the collateral. PPG, 531 F.2d at 60. See also Nolin Production Credit Ass’n v. Stone (In re Stone), 52 B.R. 305 (Bankr.W.D.Ky.1985) (monies received by debtor from tortfeasor after destruction of collateral was proceeds and therefore subject to the security interest); Virginia National Bank v. Phoenix Marine Corp. (In re Phoenix Marine), 20 Bankr. 424, 426 (Bankr.E.D.Va.1982) (secured party’s perfected security interest in general intangibles covered a chose in action and the secured party subsequently had a perfected security interest in the proceeds that resulted from the settlement of the suit); Kahn v. Capital Bank, 384 So.2d 976 (Fla.App.1980) (section 9104(7), applies to the creation of a security interest in an insurance policy itself, not insurance of collateral); First National Bank of Highland v. Merchants Mutual Insurance Co., 65 A.D.2d 59, 410 N.Y.S.2d 679 (1978) (court concluded that bank had a perfected security interest in proceeds obtained for insurance on collateral). The 1972 Code amendment made it clear that the view expressed by the Second Circuit in PPG as to the original/derivative insurance transfer distinction was a proper one since the definition of proceeds in section 9306(a) was changed to specifically state that insurance proceeds received on collateral were within Article 9. In PPG the collateral involved was inventory that was destroyed by fire with insurance proceeds paid on that collateral. Here the collateral was a chose in action (i.e., the business interruption loss claim), and the proceeds were paid when the case settled. I see no reason to treat the second case differently from the first merely because a chose in action is involved in the second. In sum, section 9104(7)’s exclusion does not apply here because the sum of $130,000 received on settlement of the chose was “proceeds” and therefore outside of section 9104(7)’s exclusion. The analysis can stop here because section 9104(7) tells us" } ]

[ { "docid": "6069314", "title": "", "text": "Supreme Court gave a liberal interpretation of the rule in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), noting that absent undue delay, bad faith, or prejudice to the opposing par ty, the court should allow amendment. Id. at 182, 83 S.Ct. at 230. The Third Circuit Court of Appeals, in Cornell & Co. v. OSHRC, 573 F.2d 820 (3d Cir.1978), stated, “It is well-settled that prejudice to the non-moving party is the touchstone for the denial of an amendment.” Id. at 823; see Heyl & Patterson Intern, v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981); Carey v. Beans, 500 F.Supp. 580, 582 (E.D. Pa.1980). The general presumption in favor of allowing amendment, Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984), can be overcome only by the opposing party showing that the amendment will be prejudicial. Defendant argues that granting the motion will be prejudicial, coming after discovery has been completed with a new discriminatory act and a new legal theory. Furthermore, defendant asserts plaintiff offered the amendments only after the defendant’s motion for partial summary judgment had been filed, in an eleventh hour attempt to avoid what defendant regards as the inevitable outcome of its motion. Prejudice does not mean inconvenience to a party. Moreover, it is obvious that an amendment, designed to strengthen the movant’s legal position, will in some way harm the opponent. In the context of a 15(a) amendment, prejudice means that the nonmoving party “must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely.” Heyl & Patterson Intern., 663 F.2d at 426. Cf. Cornell & Co., 573 F.2d at 825 (court denied the government’s motion to amend as delay was the cause of the defendant’s inability to secure the testimony of vital witnesses). The timing of the motion is not dis-positive. Although a plaintiff should plead specific instances of discrimination and applicable theories at the outset in a civil rights complaint, the failure to do so does" } ]

[ { "docid": "20779180", "title": "", "text": "Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir.2006) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). A court may deny leave to amend when “(1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other parities].” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.1993) (“In the absence of substantial or undue prejudice, denial instead must be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment.” (citation omitted)). To determine futility, we apply the same analysis that would govern a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997). “ ‘Futility’ means that the complaint, as amended, would fail to state a claim upon which relief may be granted.” Id. “If a proposed amendment is not clearly futile, then denial of leave to amend is improper.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1487 (4th ed. 2010). B. Standing to Bring a § 502(a)(2) Claim The “irreducible constitutional minimum” of Article III standing consists of an injury-in-fact, a causal connection between the injury and the conduct complained of, and the likelihood, as opposed to the mere speculation, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury-in-fact requirement exists to ensure that litigants have a personal stake in the litigation. The Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir;2000). The requirement is very generous, requiring only that the claimant allege some, specific, identifiable trifle of injury. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir.2005) (noting that “[w]hile it is difficult to reduce injury-in-fact to a simple formula, economic injury is" }, { "docid": "16266763", "title": "", "text": "test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad. faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc — the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. 371 U.S. at 182, 83 S.Ct. 227 (citation omitted) (emphasis added). These Foman exceptions have been widely accepted as defining the latitude contemplated by “freely given” amendments under RCFC 15(a). See Mitsui Foods, 867 F.2d at 1403; see also Te-Moak Bands of Western Shoshone Indians of Nev. v. United States, 948 F.2d 1258, 1262-63 (Fed.Cir.1991) (ruling that delay of eight years was too long under Rule 15(a) because moving party failed to show reasonableness of neglect and delay). Amendments, including the addition of new plaintiffs, under RCFC 15(a) can relate back to the filing date of the complaint. RCFC 15(c) allows [a]n amendment to a pleading [to] relate[ ] back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation baek; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted ... [ ] The Federal Circuit makes a general inquiry to determine “whether a claim should relate back [by] foeus[ing] on the notice given [to the defendant] by the general fact situation set forth in the original pleading.” Snoqualmie Tribe of Indians v. United" }, { "docid": "23251780", "title": "", "text": "delay in the filing of the Secretary’s motion to amend. This case presents unusual third party issues and has given rise to some legitimate questions as to which regulations govern in this unique factual situation. In order to ensure that the alleged violations are specific as to Arco, the Secretary, in seeking to amend, has attempted to refine the theory upon which liability might be based. The proposed amendment implicates few, if any, new facts. Based on the procedural history and the underlying facts of this case, we do not believe that the record reflects undue delay. Furthermore, we find no support for Arco’s claim of undue delay in the cases which it cites. We turn now to those other factors which may militate against allowing a party the opportunity to amend. As we have noted, these include bad faith, repeated failure to cure a deficiency by amendments previously allowed, the futility of amendment or substantial or undue prejudice to the opposing party. Foman, 371 U.S. at 182, 83 S.Ct. at 230. Our review of the record establishes that the only one of these factors which might reasonably be invoked to defeat the Secretary’s right to amend the complaint is possible prejudice to Arco. We have held that “ ‘prejudice to the nonmoving party is the touchstone for the denial of the amendment.’ ” Bechtel, 886 F.2d at 652, quoting Cornell & Co., Inc., v. OSHRC, 573 F.2d 820, 823 (3d Cir.1978). A mere claim of prejudice is not sufficient; there must be some showing that Arco “was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely.” Id., quoting Heyl & Patterson Int’l, 663 F.2d at 426. We do not believe that Arco has established prejudice sufficient to defeat the Secretary’s right to amend. Arco’s claims of prejudice rest solely on the need to redraft its motion for summary judgment and the possibility that some additional discovery will be required. The mere fact that a summary judgment motion will need to be revised does not, without" }, { "docid": "8452665", "title": "", "text": "not to hold KNA responsible for any injuries or losses incurred (“the Release”). KNA cites “inadvertence” as its excuse for failing to assert the counterclaim earlier. Counterclaims generally must be filed within 20 days after service of the summons and complaint. Fed.R.Civ.P. 12(a). The proposed counterclaims are not timely, having been filed approximately six months after the answers of Forcier and KNA. However, Rule 13(f) provides that [w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. “Rule 13(f)...is interpreted liberally, and amendment is freely granted in order to settle all claims in one action.” Salomon S.A. v. Alpina Sports Corp., 737 F.Supp. 720, 721 (D.N.H.1990). When assessing “excusable neglect”, courts typically consider 1) the good faith of the claimant, 2) the extent of the delay, and 3) the danger of prejudice to the opposing party. Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 n. 10, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Cabana replies that leave should not be granted because the amendments would be futile. Although futility is an adequate reason for denying a motion to amend, see Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996) (“futility” standard mirrors standard for failure to state a claim), here sufficient questions of law and fact exist surrounding the Release and its scope to render the counterclaim for breach of contract not futile. Moreover, the requested amendments will not result in undue delay or prejudice to Cabana because the new counterclaims arise out of the same facts that form the basis of his claims. For that reason, the counterclaims are compulsory, see Fed.R.Civ.P. 13(a), and thus must be asserted or waived in subsequent cases. See 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1430 (1990). Finally, there is no reason to question the good faith of Forcier and KNA here and the motion to amend their answers will therefore be allowed. IV. Motion of" }, { "docid": "19194325", "title": "", "text": "any prejudice that [opposing party] would have suffered as a result.”). Courts should also consider “the length of delay between the latest pleading and the amendment sought” and whether the amendment “would unduly increase discovery or delay the trial.” Djourabchi, 240 F.R.D. at 13 (citing Wright, Miller & Kane, Federal Practice and Procedure §§ 1487-88 (2012)). III. DISCUSSION The defendant seeks leave to amend its Answer to plaintiffs Complaint to include the affirmative defenses of laches and failure to mitigate damages. Def.’s Mot. Am. 1. Courts liberally interpret Rule 15(a) to allow amendment unless doing so would not be in the interest of justice. See, e.g., Firestone, 76 F.3d at 1208 (Rule 15(a) provides “liberal standard for granting leave to amend”); Atchinson, 73 F.3d at 425-26 (district court should grant leave absent some “‘apparent or declared reason’”) (quoting Foman, 371 U.S. at 182, 83 S.Ct. 227). Unlike when a party asks to change a scheduling order, the party seeking to amend its complaint does not have the burden to demonstrate that “good cause exists” for the amendment. Cf. Barnes v. Dist. of Columbia, 289 F.R.D. 1, 1-2 (D.D.C.2012). Instead, courts generally put the burden on the party opposing amendment to show that there is a reason to deny leave. See In re Vitamins Antitrust Litigation, 217 F.R.D. 30, 32 (D.D.C.2003) (“In essence, to show prejudice, the non-movant must show unfairness in procedure or timing preventing the non-movant from properly responding.”); Dooley v. United Technologies Corp., 152 F.R.D. 419, 425 (D.D.C.1993) (The “opposing party must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the amendments been timely.”) (internal quotation marks and citations omitted). A recent opinion by this Court — relied on heavily by the plaintiff — demonstrates how an opposing party can meet this burden. N. Am. Catholic Educ. Programming Found., Inc. v. Womble, Carlyle, Sandridge & Rice, PLLC (“NACEPF”), 887 F.Supp.2d 78, 83 Fed. R. Serv.3d 625 (D.D.C. Aug. 24, 2012) (discussed in Pl.’s Opp’n to Def.’s Mot. Am. 1-2, 16-19). However, the facts in" }, { "docid": "13851998", "title": "", "text": "Duggins v. Steak & Shake, Inc., 195 F.3d 828, 834 (6th Cir.1999); Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir.1997). “Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted.” Wade v. Knoxville Util. Bd., 259 F.3d 452, 458-59 (6th Cir.2001). The Rule does not establish a deadline within which a party must file a motion to amend. See Lloyd v. United Liquors Corp., 203 F.2d 789, 793 (6th Cir.1953) (reviewing a district court’s denial of a motion to amend after the entry of summary judgment). However, the party seeking to amend should “act with due diligence if it wants to take advantage of the Rule’s liberality.” Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306 (6th Cir.2000). Thus, where “amendment is sought at a late stage in the litigation, there is an increased burden to show justification for failing to move earlier.” Wade, 259 F.3d at 459. Courts are especially inclined to deny a motion brought under Rule 15 “if the moving party knew the facts on which the claim or defense sought to be added were based at the time the original pleading was filed and there is no excuse for his failure to plead them.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487 (2d ed.1990); see Wade, 259 F.3d at 459 (finding undue delay where the plaintiff knew the facts forming the basis of the amended claims but failed to plead the claims in the original complaint). The plaintiffs argue that the defendants should not be allowed to amend their affirmative defenses because the request comes too late, that is, six months after the liability opinion was filed, and the amendment would be futile because the PLRA does not apply to them. The Court agrees. The PLRA’s exhaustion requirement reads as follows: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until" }, { "docid": "305899", "title": "", "text": "the denial of an amendment.’ ” Bechtel, 886 F.2d at 652; see Dole, 921 F.2d at 488 (same); Heyl & Patterson International, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir.1981) (same), cert. den., F.D. Rich Housing, Inc. v. Government of the Virgin Islands, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982); Paton v. La Prade, 524 F.2d 862, 875 (3d Cir.1975) (“[Ajbsent resultant prejudice to the opposing party or similar reasons, leave to amend should be freely granted.”); see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 802-03, 28 L.Ed.2d 77 (finding amendment impermissible primarily on ground of prejudice to non-moving party), reh. denied, 401 U.S. 1015, 91 S.Ct. 1247, 28 L.Ed.2d 552 (1971). Where prejudice is asserted as a ground for opposing amendment of a pleading, “it is the opposing party’s burden to prove that such prejudice will occur.” Kiser v. General Electric Corp., 831 F.2d 423, 428 (3d Cir.1987), cert. denied sub nom. Parker-Hannifin Corp. v. Kiser, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 238 (1988). Moreover, “the non-moving party must do more than merely claim prejudice; it must show that it [would be] unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the amendments been timely.” Bechtel, 886 F.2d at 652; see Dole, 921 F.2d at 488. Where undue delay is asserted as a ground for denying leave to amend, “the burden shifts to the [moving party] to demonstrate that the delay resulted from oversight, inadvertence, or excusable neglect.” Dole, 921 F.2d at 487; see Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J.1990) (“Although incidental delay alone is not a sufficient ground to deny a motion to amend, the movant must demonstrate that its delay in seeking to amend is satisfactorily explained.”). In Dole, the Third Circuit considered a case where, as here, discovery was stayed pending decision on a motion for summary judgment. 921 F.2d at 485-86. Two months after discovery was stayed, the plaintiff moved" }, { "docid": "17530777", "title": "", "text": "shall be freely given when justice so requires,” id., “the liberal amendment policy prescribed by Rule 15(a) does not mean that leave will be granted in all cases.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kanq Federal Practice and Procedure § 1487, at 611 (2d ed.1990). Among the adequate reasons for denying leave to amend are “undue delay” in filing the motion and “undue prejudice to the opposing party by virtue of allowance of the amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Grant, 55 F.3d at 5. Here defendant did not consent to the motion, and we find no abuse of discretion in the court’s conclusion that Acosta’s request for leave to file a second amended complaint was preceded by undue delay. Acosta filed the initial complaint on September 20, 1995, and an amended complaint on November 22, 1995. On December 17, 1996, fifteen months after the initial complaint had been filed, and over a year after the first amendment, Acosta filed a motion for leave to file a second amended complaint to add the chair’s manufacturer, Tropitone, as a defendant. By that time, discovery was set to conclude in one month, on January 17, 1997. In addition, the court had approved the parties’ proposed pre-trial order just a week before, on December 5,1996. Hence by the time of the motion for leave to amend, nearly all the case’s pre-trial work was complete. According to the district court’s undisputed estimate, allowing the motion would have resulted in at least an additional four months of discovery and would have delayed trial by at least an additional twelve months. These consequential delays put the ball in Acosta’s court, for when “considerable time has elapsed between the filing of the complaint and the motion to amend, the movant has the burden of showing some ‘valid reason for his neglect and delay.’” Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983) (quoting Hayes v. New England Millwork Distribs., Inc., 602 F.2d 15, 19-20 (1st Cir.1979)). The district court" }, { "docid": "22366030", "title": "", "text": "to amend can be heard, we see no basis for finding any abuse of discretion here. Leave 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.” Foman, 371 U.S. at 182, 83 S.Ct. 227. “Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for the district court to deny the right to amend.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981); see also 6 Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d, § 1487, at 613 (1990 & 2007 Supp.) (citing prejudice to the opposing party as “the most important factor” and “the most frequent reason for denying leave to amend”). In denying Rule 15(a) relief, the district court found that Ruotolo’s delay in seeking leave to amend was inexcusable given the previous opportunities to amend, and the defendants’ burden and prejudice. These findings were well within the bounds of its discretion. When the original complaint was filed in 2003, Ruotolo certainly knew about his own conversation with the PBA back in 2000. Ruotolo seeks to excuse his delay in pleading this conversation on the ground that he did not realize its significance until the Supreme Court spoke in Garcetti. True, Ruotolo was not required to plead every conversation he had as a private citizen; but he may be expected to have pled every such conversation as to which he was asserting unconstitutional retaliation. Nothing in the law pre-Garcetti prevented or inhibited him from pleading the PBA conversation. Even after Ruotolo testified about it at his March 2005 deposition, he evidently did not believe that he suffered unconstitutional retaliation on that account, and therefore did not mention it in his Second Amended and Supplemental Complaint filed in August 2005. “When the moving party has had an opportunity to assert" }, { "docid": "6396489", "title": "", "text": "during the discovery and were not the subject of Plaintiffs discovery and trial preparation.”); 4 Charles A. Wright et al., Federal Practice and Procedure § 1487, at 623-26 (2d ed. 1990) (If an amendment “is proposed late enough” and requires the opponent “to engage in significant new preparation” or results in the “added expense and the burden of a more complicated and lengthy trial,” prejudice may be found.). ' Granting Smith’s motion to amend would have required the State to argue a whole new set of claims, based on completely new theories. The district court certainly would have had to schedule another hearing, and perhaps order more discovery. As the district court noted, the amendment would have required the State’s “lawyers [to] spend additional time, money, and energy laboring in this Court’s trenches.” In sum, Smith’s motion to amend would have required the State to begin anew on a new set of claims a week before trial and would have delayed the resolution of Smith’s case indefinitely. This showing suffices to demonstrate prejudice. See Lone Star, 43 F.3d at 940; Pearson, 863 F.2d at 328; Deasy, 833 F.2d at 41-42. Given the multiple past delays, the late hour of Smith’s motion to amend, and the great additional burdens granting the motion would have placed on the State, the district court did not abuse its discretion in denying the motion. VI. For the foregoing reasons the judgment of the district court is hereby AFFIRMED. . We note that the State failed to address this issue at oral argument, and has not updated its short memorandum on this issue to respond to the five circuit courts (cited above) that have held that the PLRA fee provisions do not apply to habeas proceedings. Accordingly, it is unclear whether the State still opposes Smith’s motion asserting that the PLRA in forma pauperis provisions do not apply to habeas proceedings. See Naddi v. Hill, 106 F.3d 275, 277 (9th Cir.1997) (State of California acknowledges that \"PLRA's revised forma pauperis provisions relating to prisoners do not apply to habeas proceedings.”). However, since the State has not" }, { "docid": "16503725", "title": "", "text": "assert a claim under RICO, 18 U.S.C. §§ 1961 et seq. This claim is a departure from his prior causes of action and consequently would require substantial additional discovery. Discovery in this matter closes December 31, 1999. This additional discovery would necessarily delay the deadlines set in this ease, as trial is set for April 4, 2000 and the pretrial conference is scheduled for January 13, 2000. Current defendants should not be made to defend entirely new causes of action, such as the RICO claim, at this advanced stage of the litigation. Such requirement would be prejudicial. Koch, 127 F.R.D. at 209-11 (denying leave to amend to include a RICO claim where such claim “represent[ed] a substantial departure from the[] previously represented intentions and encompass[ed] more issues than could have ever been reasonably anticipated from the original complaint” and where such claim would cause substantial delay of the trial of the case). Defendants further argue that the addition of the proposed claims changes the allegations in the existing claims. Defendants argue they would be prejudiced by the need to file new motions to dismiss or supplement the currently pending motions to dismiss. Defendants’ motions to dismiss have been on file for more than eight months due to the numerous extensions granted to plaintiff to respond. The Court agrees that filing new or supplemental motions at this advanced stage of litigation would prejudice defendants. Accordingly, the Court finds that allowing amendment, involving new defendants and completely new causes of action would prejudice the opposing parties and the orderly administration of justice. C. Undue Delay It is within the court’s discretion to deny leave to amend for untimeliness or undue delay without a showing of prejudice to the other party. Koch, 127 F.R.D. at 210. Courts look to the reasons for the delay and the presence of excusable neglect. Id. 1. Untimeliness of plaintiff’s motion “Untimeliness in itself can be a sufficient reason to deny leave to amend, particularly when the movant provides no adequate explanation for the delay.” Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1495 (10th Cir.1995). No" }, { "docid": "2907524", "title": "", "text": "their 168-page second amended complaint. The Federal Rules call for courts to “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Justice would not be served by granting relators’ request to file a third amended complaint; rather, such a grant would prejudice the defendants and incen-tivize future unfair amendment tactics. Accordingly, relators’ request to file a third amended complaint is denied on the grounds of undue delay. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (noting that amendments may be denied on the basis of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment”); United States ex rel. D’Agostino v. EV3, Inc., 802 F.3d 188, 195 (1st Cir.2015) (noting that, even though the Rule 15 standard applied — instead of the Rule 16 good cause standard — to a relator’s request to amend a qui tarn complaint, “[l]et us be perfectly clear. We do not suggest that the district court will be compelled to grant the motion to amend on remand. After all, there are myriad reasons that might justify the deni al of a motion for leave to amend, including undue delay, repeated failure to cure deficiencies, or futility.” (citing Foman, 371 U.S. at 182, 83 S.Ct. 227)). “When ’considerable time has elapsed between the filing of the complaint and the motion to amend, the movant has [at the very least] the burden of showing some valid reason for his neglect and delay.’” In re Lombardo, 755 F.3d 1, 3 (1st Cir.2014) (internal quotation marks omitted) (quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983)). The First Circuit has “previously labeled as ’considerable time’ warranting explanation, periods of fourteen months, fifteen months, and seventeen months.” Id. (citations omitted) (citing Grant v. News Grp. Bos., Inc., 55 F.3d 1, 6 (1st Cir.1995) (fourteen months); Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49," }, { "docid": "305900", "title": "", "text": "485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 238 (1988). Moreover, “the non-moving party must do more than merely claim prejudice; it must show that it [would be] unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the amendments been timely.” Bechtel, 886 F.2d at 652; see Dole, 921 F.2d at 488. Where undue delay is asserted as a ground for denying leave to amend, “the burden shifts to the [moving party] to demonstrate that the delay resulted from oversight, inadvertence, or excusable neglect.” Dole, 921 F.2d at 487; see Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J.1990) (“Although incidental delay alone is not a sufficient ground to deny a motion to amend, the movant must demonstrate that its delay in seeking to amend is satisfactorily explained.”). In Dole, the Third Circuit considered a case where, as here, discovery was stayed pending decision on a motion for summary judgment. 921 F.2d at 485-86. Two months after discovery was stayed, the plaintiff moved to amend the complaint. The Third Circuit held that under the circumstances, the plaintiffs actions did not constitute undue delay. Id. at 487. The court reasoned that “any opportunity to develop the factual underpinnings of [plaintiffs] case was arrested when [defendant] moved to stay discovery.” Id. at 487 n. 6. The Third Circuit has further recognized, “mere delay is not by itself enough to justify denial of leave to amend. The delay, to become a legal ground for denying a motion to amend, must result in prejudice to the party opposing the amendment.” Kiser, 831 F.2d at 427; see Howze, 750 F.2d at 1212 (“Delay alone, however is an insufficient ground upon which to deny a motion to amend. Rather, the touchstone is whether the non-moving party will be prejudiced if the amendment is allowed.” (citations omitted)); Cornell & Co., Inc. v. Occupational Safety and Health Review Comm., 573 F.2d 820, 823 (3d Cir.1978) (“Delay alone ... is an insufficient ground to deny an amendment, unless the delay unduly prejudices the non-moving party.”). As stated," }, { "docid": "23464794", "title": "", "text": "have noted that the courts “have shown a strong liberality ... in allowing amendments under Rule 15(a).” Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981) (quoting 3 J. Moore, Moore’s Federal Practice 1115.08(2) (2d ed. 1989)), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court identified a number of factors to be considered in deciding on a motion to amend under Rule 15(a): In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” Id. at 182, 83 S.Ct. at 230; accord, Heyl & Patterson Int’l, 663 F.d at 425; Cornell & Co. v. Occupational Safety and Health Rev. Comm’n, 573 F.2d 820, 823 (3d Cir.1978). This Court has interpreted these factors to emphasize that “prejudice to the non-moving party is the touchstone for the denial of the amendment.” Cornell & Co., 573 F.2d at 823. But the non-moving party must do more than merely claim prejudice; “it must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely.” See Heyl & Patterson Int’l, 663 F.2d at 426 (citing Deakyne v. Comm’rs of Lewes, 416 F.2d 290, 300 (3d Cir.1969)). In the case at bar, the district court refused to grant the appellants’ motion to amend their complaint under Rule 15(a), holding that the “denial to the defendant of the defense of the statute of limitations constitutes prejudice to the defendant.” Bechtel v. Robinson, et al., 123 F.R.D. at 487 (citations omitted), reprinted in Appellants’ App. at 47. We find that the court erred in its holding since Gray should have been equitably estopped" }, { "docid": "3287394", "title": "", "text": "of its odd assortment of facts, in light of which retrospective operation would have worked a “manifest injustice.” The court of appeals emphasized that (1) the plaintiff had lost a full jury trial involving almost the same issues against some other defendants and there was no reason to think a second trial's outcome would differ; and (2) it would likely have concluded its appellate review before the amendment took effect on December 1, 1991 had the plaintiff presented his \"weak” arguments on appeal \"in a more forthright manner.” 956 F.2d at 363. The common thread coursing through both Diaz and Freund is the fact that proceedings in the district court had terminated prior to the effective date of the amendment. Since this special circumstance is missing here, even assuming Diaz and Freund are persuasive, they are inappo-site. . Cf. Bechtel, 886 F.2d at 652 (holding that to show prejudice the party opposing the amendment of a complaint \"must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely\" (internal quotation omitted) (emphasis supplied)), quoted in Dole v. Arco Chem. Co., 921 F.2d 484, 488 (3d Cir.1990); Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920, 923 (3d Cir.1984) (\"The principal test for prejudice ... is whether the opposing party was denied a fair opportunity to defend and to offer additional evidence....” (citations omitted)); Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 n. 19 (3d Cir.1969) (\"Prejudice under [Rule 15] means undue difficulty in prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party.”); see also 6A Wright et al., Federal Practice and Procedure § 1498, at 126 (\"[C]ourt[s] should not give special treatment to the careless or myopic added defendant whose alleged prejudice results from his own superficial investigatory practices or poor preparation of a defense. But at least when the facts relevant to one possible claimant do require a substantially different and more burdensome investigatory effort or when the" }, { "docid": "9571830", "title": "", "text": "Nevada v. U.S., 948 F.2d 1258, 1262-63 (Fed.Cir.1991) (emphasis added) (non-patent case). Thus, the court in Te-Moak Bands focused on the undue delay, standing alone, and the effect of undue delay in terms of risk of prejudice to the non-movant. On the other hand, in a prior decision, Cornwall v. U.S. Construction Manufacturing, Inc., 800 F.2d 250 (Fed. Cir.1986)— a patent case upon which both parties here rely, although they extract from it diametrically opposed principles—the Federal Circuit Court of Appeals also recognized that a court must consider the risk of prejudice to the movant of denial of leave to amend. Relying on Eleventh Circuit precedent, the court in Cornwall reversed a district court’s denial of leave to amend the defendant’s answer to assert patent invalidity. See Cornwall, 800 F.2d at 252-53. After emphasizing “the importance of considering what effect the denial of a motion to amend would have on the mov-ant,” noting that the district court had failed to offer “any justifying reason” for denying leave to amend, and finding that it appeared that the movant would be prejudiced by denial of leave to amend its answer to assert a defense of patent invalidity, the appellate court reversed the district court’s denial of leave to amend. See Cornwall, 800 F.2d at 253. b. Application of the standards Here, the court finds little justification for Donaldson’s failure to assert double patenting as a ground for invalidity of the ’456 patent well before it did so, even if the Eli Lilly decision first made Donaldson aware of the availability of a double-patenting defense to the ’456 patent. See Foman, 371 U.S. at 182, 83 S.Ct. 227 (considering the movant’s “undue delay” as a ground for denying leave to amend); Costello, 958 F.2d at 839 (same);' Te-Moak Bands, 948 F.2d at 1262-63 (same). This is so, because the issue of double-patenting was not newly minted by the Eli Lilly decision; Donaldson only asserted that issue long after the dispositive motion deadline set by Judge Melloy, and well after the parties had completed extensive discovery; Donaldson had twice previously amended its answer and" }, { "docid": "6396488", "title": "", "text": "filed his motion to amend the habeas petition on July 5, 1995. As in Deasy, in this case “the delay was significant, and the motion to amend came right before trial and after discovery was complete.” Id. The timing of the amendment also illuminates the prejudice suffered by the State. On the one hand, “it would have been manifestly unfair to make [the State] go to trial” with a week’s notice and “without having had a fair opportunity to prepare [its] case.” Nat’l Bank of Washington v. Pearson, 863 F.2d 322, 328 (4th Cir.1988). On the other hand, it would have been unfair to make the State “conduct discovery a second time in order to meet [the] newly asserted [claim].” Id. We have held that “[b]elated claims which change the character of litigation are not favored.” Deasy, 833 F.2d at 42; see also Lone Star, 43 F.3d at 940 (finding prejudice because a motion to amend filed “on the last day of discovery would have raised new issues, which were not involved in the case during the discovery and were not the subject of Plaintiffs discovery and trial preparation.”); 4 Charles A. Wright et al., Federal Practice and Procedure § 1487, at 623-26 (2d ed. 1990) (If an amendment “is proposed late enough” and requires the opponent “to engage in significant new preparation” or results in the “added expense and the burden of a more complicated and lengthy trial,” prejudice may be found.). ' Granting Smith’s motion to amend would have required the State to argue a whole new set of claims, based on completely new theories. The district court certainly would have had to schedule another hearing, and perhaps order more discovery. As the district court noted, the amendment would have required the State’s “lawyers [to] spend additional time, money, and energy laboring in this Court’s trenches.” In sum, Smith’s motion to amend would have required the State to begin anew on a new set of claims a week before trial and would have delayed the resolution of Smith’s case indefinitely. This showing suffices to demonstrate prejudice. See Lone" }, { "docid": "4225384", "title": "", "text": "trial court, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Serrano Medina v. United States, 709 F.2d 104, 106 (1st Cir.1983); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 896 (1st Cir.1979), and an order denying leave to amend will be reversed only for an abuse of that discretion, Serrano Medina, 709 F.2d at 106; Johnston v. Holiday Inns, 595 F.2d at 896. We find no such abuse in this case. Isaac offered no reason for the four-year delay in asserting his contract claim and, as the district court noted, it could not be that this claim was newly discovered “since the plaintiff is alleged to be a party to [the] conversations” on which the claim is based. “While courts may not deny an amendment solely because of delay and without consideration of the prejudice to the opposing party, ... it is clear that ‘undue delay’ can be a basis for denial[.]... And where, as here, a considerable period of time has passed between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some ‘valid reason for his neglect and delay’____ Appellant has failed to meet that burden.” Hayes v. New England Millwork, 602 F.2d 15, 19-20 (1st Cir.1979) (citations omitted). See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Moreover, the court was entitled to believe that the new claim would result in undue prejudice to the defendant. If this claim had been allowed, Harvard would have been required to develop evidence of oral representations which occurred 13 years before Isaac’s proposed amended complaint was filed. The district court found that the new claims “very materially change the nature of the complaint”, and that “[t]he mere intervention of new counsel does not justify calling upon the defendant to respond to so stale a claim.” Under these circumstances, we can not say that the district court abused its discretion in refusing the amendment. The refusal of the proferred amendment is affirmed," }, { "docid": "18386001", "title": "", "text": "an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought should, as the rules require, be “freely given.” 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); accord, Heyl & Patterson Intern., 663 F.2d at 425; Cornell & Co. v. Occupational Safety and Health Rev. Comm'n., 573 F.2d 820, 823 (3d Cir.1978). The Third Circuit has interpreted these factors to emphasize that “prejudice to the non-moving party is the touchstone for the denial of an amendment.” Cornell & Co., 573 F.2d at 823; Heyl & Patterson Intern., 663 F.2d at 425. A party’s delay in moving to amend a pleading generally is an insufficient ground to deny an amendment, unless that delay unduly prejudices an opposing party. Cornell & Co., 573 F.2d at 823; Butcher & Singer, Inc. v. Kellam, 105 F.R.D. 450, 452 (D.Del.1984). See also 3 Moore’s Federal Practice 1115.-08[4], at 15-76 (2d ed. 1985) (“[Wjhile laches and unexcused delay may bar a proposed amendment, delay alone, regardless of its length, is not enough to bar it if the other party is not prejudiced.”). In addition, the non-moving party must do more than simply claim prejudice; it must show that it will be unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it otherwise could have offered had the amendment been timely. See Heyl & Patterson Intern., 663 F.2d at 426. Where substantial prejudice is not proven, a court may deny leave to amend only where the non-moving party shows bad faith, dilatory motive, truly undue or unexplained delay, futility, or repeated failure to cure deficiencies by amendment. Id. at 426. In accordance with these principles, the Court first must consider the extent to which granting plaintiffs’ motion will prejudice Equitable. As discussed above, Equitable claims several ways" }, { "docid": "18386002", "title": "", "text": "Co., 573 F.2d at 823; Butcher & Singer, Inc. v. Kellam, 105 F.R.D. 450, 452 (D.Del.1984). See also 3 Moore’s Federal Practice 1115.-08[4], at 15-76 (2d ed. 1985) (“[Wjhile laches and unexcused delay may bar a proposed amendment, delay alone, regardless of its length, is not enough to bar it if the other party is not prejudiced.”). In addition, the non-moving party must do more than simply claim prejudice; it must show that it will be unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it otherwise could have offered had the amendment been timely. See Heyl & Patterson Intern., 663 F.2d at 426. Where substantial prejudice is not proven, a court may deny leave to amend only where the non-moving party shows bad faith, dilatory motive, truly undue or unexplained delay, futility, or repeated failure to cure deficiencies by amendment. Id. at 426. In accordance with these principles, the Court first must consider the extent to which granting plaintiffs’ motion will prejudice Equitable. As discussed above, Equitable claims several ways in which it will be prejudiced: the proximity of trial, the great increase in its potential liability, the tactical advantage conferred on plaintiffs, and the necessity of filing a motion to dismiss and additional discovery requests. The Court finds none of these arguments persuasive. Equitable’s most compelling argument is that plaintiffs’ motion was filed only four months before the scheduled trial date and less than a month before the discovery cut-off date. Cf, e.g., Cornell & Co., 573 F.2d 820 (3d Cir.1978) (administrative board abused its discretion in allowing amendment of complaint which changed legal and factual basis for alleged violation nine days before hearing); Gordon v. Terry, 684 F.2d 736 (11th Cir.1982) (district court properly denied amendment adding RICO claims filed day before scheduled summary judgment hearing), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983). The subsequent indefinite postponement of the trial and extension of the discovery period have vitiated considerably the force of this argument, because defendant now has time to complete any additional preparation. Indeed, it is unclear" } ]

[ { "docid": "18975806", "title": "", "text": "able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Gannett Co. v. De-Pasquale, 443 U.S. 368, 429 n. 10, 99 S.Ct. 2898, 2931 n. 10, 61 L.Ed. 608 (1979) (Black-mun, J., concurring in part and dissenting in part) (quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.)). The litigation involved here is said to serve as a constitutionally protected “form of political expression.” NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963). It is suggested that the federal courtroom in this case is even more clearly a public forum for the parties to the litigation than was the criminal trial at issue in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), where the Supreme Court upheld a First Amendment right of the public and press to observe a criminal trial over the protest of the accused. See also Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984) (holding that the public has a right of access to civil proceedings). However this may be, it has never been suggested that there is a link between the First Amendment interest that a litigant has in his trial as a “form of expression” and the right that the public may have to view that expression on television. Whatever public forum interest may exist in litigation, that interest is clearly a speaker’s interest, not an interest in access to the courtroom. Because the ability of neither General Westmoreland nor CBS to express views at trial is altered by the presence or absence of television cameras, CNN’s public forum argument is, by itself, inapposite. CNN’s constitutional argument rests on its second premise. The second premise in CNN’s constitutional argument is the proposition that the public’s opportunity to see and hear a trial is protected by the First Amendment. We, of course, agree that the public (in this instance, the putative viewers) has First Amendment interests that are independent of the First Amendment interests of speakers (in this instance," } ]

[ { "docid": "4903605", "title": "", "text": "access to judicial proceedings. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court recognized a common law and first amendment right of access to criminal trials. Id. at 573, 580, 100 S.Ct. at 2825, 2829. Subsequently, the Court made it clear that the right of access to judicial proceedings is not limited to trials. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). While the Richmond Newspapers decision did not explicitly find a right of access in the civil context, Justice Burger, in his plurality opinion for the Court, noted that historically both criminal and civil trials have been presumptively open. Richmond Newspapers, 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17. The concurring opinions of Justices Brennan and Stewart also noted the potential application of the Court’s analysis in the civil context. Id. at 590, 599, 100 S.Ct. at 2834-35, 2839-40. This court agrees with the Sixth Circuit’s conclusion that the analysis in Richmond Newspapers applies to both civil and criminal proceedings. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). See also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir.1988) (recognizing public right of access to summary judgment proceedings in defamation suit); Publicker Indust., Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984) (recognizing public right of access to hearing on preliminary injunction); In re Continental Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984) (recognizing public right of access to proceedings on motion to terminate derivative claims in civil suit). While the right of access to judicial proceedings is not absolute, it “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2741 (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824," }, { "docid": "11784787", "title": "", "text": "sentencing proceedings, see United States v. Alcantara, 396 F.3d 189, 199 (2d Cir.2005). Although the Supreme Court has not explicitly recognized a First Amendment right of access outside of the criminal context, the Second Circuit has held that the right applies to civil as well as criminal proceedings, see Westmoreland, 752 F.2d at 23 (finding that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”), and, applying the experience and logic test, has extended this right to encompass docket sheets of civil proceedings, see Hartford Courant, 380 F.3d at 90-96. Other circuits have also concluded that the First Amendment right of access attaches in the civil context. See Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Publisher Indus. Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165 (6th Cir.1983); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). The Second Circuit has not yet addressed whether the First Amendment right of access applies in the context of an administrative proceeding. Both circuits that have been confronted with the issue have held that the right applies to administrative adjudicatory hearings. See Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir.2002); North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002). b. Analysis Plaintiffs claim for a First Amendment right of access to TAB Hearings presents three discrete questions: first, whether the First Amendment right of access, articulated in the context of criminal proceedings and extended to civil proceedings by the Second Circuit, is properly considered at all in the administrative proceeding at issue in this case; second, if the right does so extend, whether an application of the “experience” and “logic” test results in the attachment of a qualified First Amendment right of access; and third, if so, whether TAB’S current “respondent controls” public access policy passes muster under the First Amendment. The Court will address each of these questions in turn. i. Whether" }, { "docid": "22570016", "title": "", "text": "on procedural or jurisdictional grounds. See Flynt v. Rumsfeld, 355 F.3d 697 (D.C.Cir.2004) (addressing and denying the asserted First Amendment right for press representatives to travel with the military on appeal from the district court’s dismissal of the complaint for lack of subject matter jurisdiction). Finally, in its brief to this Court, the State recognized the public’s qualified right of access to court documents. We write only to clarify the narrow issue of whether docket sheets fall within the scope of this qualified right. The right that the plaintiffs assert emanates from our precedents establishing the public’s and the press’s qualified First Amendment right to attend judicial proceedings and to access certain judicial documents. Taken together, these suggest that the media and the public possess a qualified First Amendment right to inspect docket sheets, which provide an index to the records of judicial proceedings. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and its progeny, the Supreme Court recognized that the First Amendment grants both the public and the press a qualified right of access to criminal trials, see id. at 580, 100 S.Ct. 2814, to the examination of jurors during voir dire, see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”), and to preliminary hearings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). The circuits, including ours, have concurred in holding that this right applies to civil as well as criminal proceedings. See Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (asserting that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”); see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988) (holding that the “rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case”); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984) (determining that “the First Amendment embraces a" }, { "docid": "7247588", "title": "", "text": "in that opinion. . Although the Supreme Court has not addressed the right to attend civil trials, each Court of Appeals to examine this question has concluded that Richmond Newspapers applies and that a First Amendment right exists. See, e.g., Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Brown & Williamson Tobacco Co. v. Federal Trade Commission, 710 F.2d 1165 (6th Cir.1983); In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir.1984); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). . The only constitutionalized access requirement vis-a-vis the Executive is that the President \"from time to time give to the Congress Information of the State of the Union.” (U.S. Const.Art. II, § 3.) The Constitution also requires Congress to publish a \"regular Statement and Account of the Receipts and Expenditures of all public Money,” (U.S. Const, art. I, § 9, cl. 7), and instructs each House of Congress to publish a journal of proceedings from which it may withhold \"such Parts as it may in [its] Judgment require Secrecy.” (U.S. Const, art. I, § 5, cl. 3). . The Government submits that First Amendment Coalition actually stands for the opposite proposition: that we should not apply Richmond Newspapers to any administrative proceeding. It asserts that when we said \"[tjhese administrative proceedings ... do not have a long history of openness,\" our emphasis was on \"proceedings.” Such an emphasis would distinguish administrative proceedings from civil and criminal trials, and would imply that no administrative proceeding could make the historical showing neces- . sary under Richmond Newspapers. But this interpretation is both incorrect and misplaced. It is incorrect because the prior sen-ten.ce referred to the \"fundamentally different procedures of judicial disciplinary boards,” id., so that when we said that \"[fjhese administrative proceedings\" lacked history, we clearly referred only to proceedings before judicial disciplinary boards and not to administrative proceedings generally. It is misplaced because even if the Government were correct that administrative proceedings generally lack history, that argument properly addresses the \"experience” prong of the Richmond Newspapers test itself. Our" }, { "docid": "23576567", "title": "", "text": "copy judicial records and documents, subject to supervisory control of courts); Wilson v. American Motors Corp., 759 F.2d 1568, 1570 (11th Cir.1985) (per curiam) (records in civil proceedings); United States v. Martin, 746 F.2d 964, 968 (3d Cir.1984) (all judicial records and documents); In re Knight Publishing Co., 743 F.2d at 235 (sealing court documents in criminal trial); In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d at 780-81 (grand jury ministerial records). But cf. United States v. Webbe, 791 F.2d 103, 107 (8th Cir.1986) (no “strong” presumption in favor of common law right of access). Second, public access to documents filed in support of search warrants is important to the public’s understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on pros-ecutorial or judicial misconduct. Moreover, even though a search warrant is not part of the criminal trial itself, like voir dire, a search warrant is certainly an integral part of a criminal prosecution. Search warrants are at the center of pretrial suppression hearings, and suppression issues often determine the outcome of criminal prosecutions. Pre-trial suppress on hearings, and other kinds of non-trial proceedings in criminal and civil cases, have been held to be subject to the first amendment right of public access by other federal courts of appeals. See In re New York Times Co., 828 F.2d at 113-14 (Second Circuit); In re Application of Herald Co., 734 F.2d 93, 98-99 (2d Cir.1984); United States v. Brooklier, 685 F.2d at 1169-71 (Ninth Circuit); United States v. Criden, 675 F.2d at 557 (Third Circuit); cf. Seattle Times Co. v. United States District Court, 845 F.2d at 1516-17 (Ninth Circuit) (pretrial detention hearing); In re Washington Post Co., 807 F.2d at 389 (Fourth Circuit) (plea and sentencing hearings); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3d Cir.1984) (civil proceedings); In re Iowa Freedom of Information Council, 724 F.2d at 661 (Eighth Circuit) (contempt proceeding); United States v. Chagra, 701 F.2d at 362-64 (Fifth Circuit) (bail hearing). These courts have also extended the first amendment right" }, { "docid": "11784786", "title": "", "text": "at 92, 94-96 (referring to and applying the “experience” and “logic” test). Specifically, the Supreme Court found that its previous “decisions have emphasized two complementary considerations”: first, whether there exists a “tradition” of public access to a type of proceeding that carries “the favorable judgment of experience[ ]” (the experience prong); second, “whether pub- lie access plays a significant positive role in the functioning of the particular process in question” (the logic prong). Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. 2735 (citations and internal quotation marks omitted). The Supreme Court recognized that “[tjhese considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes.” Id. at 9, 106 S.Ct. 2735. In the criminal context, the Second Circuit has found that the First Amendment right of access extends to pre-trial suppression hearings, see Application of The Herald Co., 734 F.2d 93, 99 (2d Cir.1984), plea hearings and plea agreements filed in connection with those hearings, see United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988), and sentencing proceedings, see United States v. Alcantara, 396 F.3d 189, 199 (2d Cir.2005). Although the Supreme Court has not explicitly recognized a First Amendment right of access outside of the criminal context, the Second Circuit has held that the right applies to civil as well as criminal proceedings, see Westmoreland, 752 F.2d at 23 (finding that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”), and, applying the experience and logic test, has extended this right to encompass docket sheets of civil proceedings, see Hartford Courant, 380 F.3d at 90-96. Other circuits have also concluded that the First Amendment right of access attaches in the civil context. See Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir.1988); Publisher Indus. Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165 (6th Cir.1983); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983). The Second Circuit has" }, { "docid": "23576568", "title": "", "text": "pretrial suppression hearings, and suppression issues often determine the outcome of criminal prosecutions. Pre-trial suppress on hearings, and other kinds of non-trial proceedings in criminal and civil cases, have been held to be subject to the first amendment right of public access by other federal courts of appeals. See In re New York Times Co., 828 F.2d at 113-14 (Second Circuit); In re Application of Herald Co., 734 F.2d 93, 98-99 (2d Cir.1984); United States v. Brooklier, 685 F.2d at 1169-71 (Ninth Circuit); United States v. Criden, 675 F.2d at 557 (Third Circuit); cf. Seattle Times Co. v. United States District Court, 845 F.2d at 1516-17 (Ninth Circuit) (pretrial detention hearing); In re Washington Post Co., 807 F.2d at 389 (Fourth Circuit) (plea and sentencing hearings); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3d Cir.1984) (civil proceedings); In re Iowa Freedom of Information Council, 724 F.2d at 661 (Eighth Circuit) (contempt proceeding); United States v. Chagra, 701 F.2d at 362-64 (Fifth Circuit) (bail hearing). These courts have also extended the first amendment right of public access to the documents filed in connection with these protected proceedings. See Seattle Times Co. v. United States District Court, 845 F.2d at 1517 (documents filed in connection with pre-trial detention proceeding); United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988) (plea agreement); In re New York Times Co., 828 F.2d at 114 (documents filed in connection with suppression motions); United States v. Smith, 776 F.2d at 1111-12 (bill of particulars); Associated Press v. United States District Court, 705 F.2d 1143, 1145 (9th Cir.1983) (pretrial documents in general); cf. In re Washington Post Co., 807 F.2d at 390 (affidavits submitted in connection with sentencing hearing). COMPELLING GOVERNMENT INTEREST AND LESS RESTRICTIVE ALTERNATIVES “[Recognition of a qualified First Amendment right of access to the ... papers filed here does not mean that the papers must automatically be disclosed.” In re New York Times Co., 828 F.2d at 116. The first amendment right of public access is not absolute; it is a qualified right. Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2735;" }, { "docid": "20385334", "title": "", "text": "but to related proceedings such as witness testimony, Globe Newspaper, 457 U.S. at 608-10, 102 S.Ct. 2613; the transcripts of voir dire proceedings, Press-Enterprise v. Superior Court, 464 U.S. 501, 505-10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”); and preliminary hearings, Press-Enterprise II, 478 U.S. at 13-15, 106 S.Ct. 2735. Our circuit has further held that the presumption of access applies to other aspects of criminal trials as well, including judicial records such as videotapes of defendants, In re Application of Nat’l Broad. Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir.1980); pretrial suppression hearings, In re Application of the Herald Co. (United States v. Klepfer), 734 F.2d 93, 99 (2d Cir.1984); plea agreements and plea hearings, United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988); information on the payment of court-appointed counsel, United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir.1989); bail hearings, United States v. Abuhamra, 389 F.3d 309, 323-24 (2d Cir.2004); live voir dire proceedings, ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir.2004); and sentencing hearings, United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir.2005). We have also held that the public’s right implies that particular indi viduals may not be summarily excluded from court. Huminski v. Corsones, 396 F.3d 53, 83-84 (2d Cir.2005). Most relevant for the present case, we have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records. Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir.1984); see also Hartford Courant, 380 F.3d at 93 (civil and criminal docket sheets). Significantly, all the other circuits that have considered the issue have come to the same conclusion. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir.1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir.1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th" }, { "docid": "9516426", "title": "", "text": "In applying this test, the Supreme Court has recognized a First Amendment right of access to various aspects of a criminal prosecution. See Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735 (preliminary hearings as conducted in California); Press-Enterprise I, 464 U.S. at 505, 104 S.Ct. 819 (jury voir dire); Globe Newspaper Co., 457 U.S. at 604, 102 S.Ct. 2613 (trial); Richmond Newspapers, Inc., 448 U.S. at 576-77, 100 S.Ct. 2814 (trial). The courts of appeals have also recognized a First Amendment right of access to various proceedings within a criminal prosecution. See, e.g., United States v. Danovaro, 877 F.2d 583, 589 (7th Cir.1989) (proceeding at which guilty plea was taken); United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988) (plea hearings); In re Knight Publ’g Co., 743 F.2d 231, 233 (4th Cir.1984) (trials); United States v. Klepfer (In re Herald Co.), 734 F.2d 93, 99 (2d Cir.1984) (pretrial hearing on motion to suppress); United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir.1983) (pretrial bond reduction hearing); United States v. Brooklier, 685 F.2d 1162, 1167-71 (9th Cir.1982) (jury voir dire, pretrial hearing on motion to suppress, and hearing conducted during trial on motion to suppress); Criden, 675 F.2d at 557 (pretrial suppression, due process, and entrapment hearings). But see Edwards, 823 F.2d at 116-17 (First Amendment right of access does not attach to mid-trial questioning of jurors about potential misconduct). Although neither the Supreme Court nor this court has specifically considered whether the First Amendment applies to a sentencing hearing, the Second, Fourth, Seventh, and Ninth Circuits have done so, and each has concluded that it does. United States v. Alcantara, 396 F.3d 189, 196-99 (2d Cir.2005); United States v. Eppinger, 49 F.3d 1244, 1252-53 (7th Cir. 1995); United States v. Soussoudis (In re Washington Post Co.), 807 F.2d 383, 389 (4th Cir.1986) (plea hearings and sentencing proceedings); CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985) (“The primary justifications for access to criminal proceedings ... apply with as much force to post-conviction proceedings as to the trial itself.”). Relatedly, courts of appeals have also" }, { "docid": "20385335", "title": "", "text": "sentencing hearings, United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir.2005). We have also held that the public’s right implies that particular indi viduals may not be summarily excluded from court. Huminski v. Corsones, 396 F.3d 53, 83-84 (2d Cir.2005). Most relevant for the present case, we have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records. Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir.1984); see also Hartford Courant, 380 F.3d at 93 (civil and criminal docket sheets). Significantly, all the other circuits that have considered the issue have come to the same conclusion. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir.1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir.1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983). This recognition of the right to attend civil trials derives from the fact that the First Amendment, unlike the Sixth, does not distinguish between criminal and civil proceedings; nor does it distinguish among branches of government. Rather, it, protects the public against the government’s “arbitrary interference with access to important information.” Richmond Newspapers, 448 U.S. at 583, 100 S.Ct. 2814 (Stevens, J., concurring). As the district court below aptly noted, “[o]nce unmoored from the Sixth Amendment, there is no principle that limits the First Amendment right of access to any one particular type of government process.” NYCLU, 675 F.Supp.2d at 431 (internal quotation marks omitted). However, neither our Court nor the Supreme Court has had occasion to consider under what conditions, if at all, a qualified right of access attaches to non-trial civil proceedings like the administrative adjudication at issue here. It is to that question that we now turn. A. Applicability of the Experience and Logic Test The NYCTA would have us forgo the Richmond Newspapers test: it argues that administrative proceedings are" }, { "docid": "22287788", "title": "", "text": "courts of appeals also have applied this analysis in recognizing a public right of access to criminal pretrial hearings. See, e.g., Associated Press v. United States District Court, 705 F.2d 1143 (9th Cir.1983) (right of access to pretrial criminal documents); United States v. Chagra, 701 F.2d 354 (5th Cir.1983) (right to attend bail reduction hearings); United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982) (right to attend voir dire and pretrial su-pression hearings); United States v. Criden, 675 F.2d 550 (3d Cir.1982) (right to attend pretrial supression, due process, and entrapment hearings). These cases demonstrate that there is general agreement among the courts that the public’s right of access attaches to decisions “of major importance to the administration of justice.” In re Globe Newspaper Co., 729 F.2d at 52. Several courts have recognized a public right of access to civil as well as criminal trials. See Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 22-23 (2d Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3478, 87 L.Ed.2d 614 (1985); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir.1984); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-79 (6th Cir.1983); see also In the Matter of Continental Illinois Securities Litigation, 732 F.2d at 1308-09 (agreeing with the reasoning of those courts holding that there is a public right of access to civil trials though not specifically recognizing such a right). Other courts, while not explicitly joining those recognizing a right of access to civil trials in general, have recognized a right of access to certain fundamental aspects of civil proceedings. See, e.g., Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir.1985) (presumptive right of access applied to the trial record). The Second and Seventh Circuits have recognized a right of access to reports considered by a court in ruling on pretrial motions that were dispositive of the litigants’ substantive rights. In the Matter of Continental Illinois Securities Litigation, 732 F.2d at 1308-10 (Seventh Circuit); Joy v. North, 692 F.2d at 893 (Second Circuit). These two decisions are particularly relevant here because they recognized a right" }, { "docid": "8166292", "title": "", "text": "483-84, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (“[T]he unconditional phrasing of the First Amendment was not intended to protect every utterance .... The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”); see also Alexander Meikle john, The First Amendment Is an Absolute, 1961 Sup.Ct. Rev. 245, 255 (“The First Amendment ... protects the freedom of those activities of thought and communication by which we ‘govern.’ ”). Though the Supreme Court originally recognized the First Amendment right of access in the context of criminal trials, see Richmond Newspapers, 448 U.S. 555, 100 S.Ct. 2814, the federal courts of appeals have widely agreed that it extends to civil proceedings and associated records and documents. See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Autk, 684 F.3d 286, 305 (2d Cir.2011) (finding a right of access to administrative civil infraction hearings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984) (“We hold that the First Amendment does secure a right of access to civil proceedings.”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) (finding a right of access to litigation committee reports in shareholder derivative suits); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165, 1177 (6th Cir.1983) (holding that the First Amendment limits judicial discretion to seal documents in a civil case). The California Supreme Court has also so held. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 86 Cal. Rptr.2d 778, 980 P.2d 337, 361 (1999). Though we have not expressly held that the First Amendment right of access encompasses civil cases, we have recognized a right of access to executions, documents related to a criminal defendant’s pretrial release, and criminal jury voir dire, among other proceedings. Cal. First Amendment Coal., 299 F.3d at 877 (executions); Seattle Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1519 (9th Cir.1988) (pretrial release documents); United States v. Brooklier, 685 F.2d 1162, 1168-69 (9th Cir.1982) (voir dire). We have also applied the Press-Enterprise" }, { "docid": "20385333", "title": "", "text": "Justice Brennan’s concurrence in Richmond Newspapers offered “two helpful principles” to guide courts in determining whether a qualified right of access attaches to a given government proceeding. Id. at 589, 100 S.Ct. 2814 (Brennan, J., concurring). First, courts should inquire into “experience” (history) and “consider[ ] whether the place and process have historically been open to the ... public.” Press-Enterprise v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”) (internal quotation marks omitted). Second, courts should consider “logic” (functionality) and ask whether public access “plays a significant positive role in the functioning of the particular process in question.” Id. Courts apply this experience and logic test to determine whether a qualified right of public access attaches to a given government forum. See, e.g., Globe Newspaper, 457 U.S. at 605, 102 S.Ct. 2613; Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 94-95 (2d Cir.2004). Reading Richmond Newspapers broadly, the Supreme Court has subsequently held that the First Amendment safeguards a qualified right of access not only to criminal trials but to related proceedings such as witness testimony, Globe Newspaper, 457 U.S. at 608-10, 102 S.Ct. 2613; the transcripts of voir dire proceedings, Press-Enterprise v. Superior Court, 464 U.S. 501, 505-10, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”); and preliminary hearings, Press-Enterprise II, 478 U.S. at 13-15, 106 S.Ct. 2735. Our circuit has further held that the presumption of access applies to other aspects of criminal trials as well, including judicial records such as videotapes of defendants, In re Application of Nat’l Broad. Co. (United States v. Myers), 635 F.2d 945, 952 (2d Cir.1980); pretrial suppression hearings, In re Application of the Herald Co. (United States v. Klepfer), 734 F.2d 93, 99 (2d Cir.1984); plea agreements and plea hearings, United States v. Haller, 837 F.2d 84, 86-87 (2d Cir.1988); information on the payment of court-appointed counsel, United States v. Suarez, 880 F.2d 626, 630-31 (2d Cir.1989); bail hearings, United States v. Abuhamra, 389 F.3d 309, 323-24 (2d Cir.2004); live voir dire proceedings, ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir.2004); and" }, { "docid": "4903606", "title": "", "text": "that the analysis in Richmond Newspapers applies to both civil and criminal proceedings. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). See also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir.1988) (recognizing public right of access to summary judgment proceedings in defamation suit); Publicker Indust., Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984) (recognizing public right of access to hearing on preliminary injunction); In re Continental Ill. Sec. Litig., 732 F.2d 1302 (7th Cir.1984) (recognizing public right of access to proceedings on motion to terminate derivative claims in civil suit). While the right of access to judicial proceedings is not absolute, it “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2741 (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I ”)). The United States and defendants have identified no such “overriding interest.” As discussed above, their concerns about the tainting of potential witnesses and jurors in related future civil and criminal proceedings can be addressed through voir dire and cross-examination. Defendants’ argument with regard to reputation is equally misguided, as numerous courts have ruled that harm to a party’s reputation is not a sufficient justification for the denial of public access to judicial proceedings. See, e.g., Brown & Williamson Tobacco, 710 F.2d at 1179; In re Search Warrant for Northwest EnviroServices, Inc., 736 F.Supp. 238, 239 (W.D.Wash. 1989). Moreover, this action, arising from Congress’ efforts to combat fraudulent claims for public funds, clearly is of great public interest. As such, the argument for public access to these judicial proceedings is stronger still. In re Search Warrant, 736 F.Supp. at 239; In re Coordinated Pretrial Proceedings, 101 F.R.D. at 39. The moving parties’ request to seal documents related to the settlement hearing fares no better. The Ninth Circuit has recognized" }, { "docid": "23302830", "title": "", "text": "(3d Cir.1988) (granting access to evidence introduced at trial). . It has been suggested that the holdings of Wilson v. Am. Motors Corp., 759 F.2d 1568, 1571 (11th Cir.1985) and Brown v. Adv. Eng’g, Inc., 960 F.2d 1013, 1015-16 (11th Cir.1992) are inconsistent with prior precedent. See In re Four Search Warrants, 945 F.Supp. 1563, 1566-67 n. 4 (N.D.Ga.1996) (discussing inconsistencies between and Wilson and Newman v. Graddick, 696 F.2d 796 (11th Cir.1983)). Because we determine that Wilson and Brown are inapplicable to this case, we do not reach this issue. . See supra note 5. . We note that absent a contrary court order or local rule, the default rule under the Federal Rules of Civil Procedure is that discovery materials must be filed with the district court. See Fed.R.Civ.P. 5(d). The prospect of all discovery material being presumptively subject to the right of access would likely lead to an increased resistance to discovery requests. See United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir.1986). . Accord United States v. Amodeo, 71 F.3d 1044, 1048-49 (2nd Cir.1995) (measuring weight of presumption of access by “role of material at issue in the exercise of Article III judicial power”); Rushford v. New Yorker Magazine, 846 F.2d 249, 252 (4th Cir.1988) (noting that summary judgment adjudicates substantive rights and serves as a substitute for trial, and granting access to documents submitted with motion for summary judgment); In re Cont'l Illinois Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) (concluding that where corporation introduced copy of report of special litigation committee in derivative action in connection with motion to terminate claims, access should be granted); Joy v. North, 692 F.2d 880, 893 (2d Cir.1982) (holding that submission of materials in connection with motion for summary judgment precludes assertion of attorney-client privilege or work product immunity). . The district court's analysis focused instead on whether denial of access was narrowly tailored to a compelling governmental interest. See Van Etten v. Bridgestone/Fire. stone, Inc., 117 F.Supp.2d 1375, 1381 (S.D.Ga.2000). The only discussion of Rule 26(c) appears in the district court's alternate holding: \"[e]ven assuming" }, { "docid": "22570017", "title": "", "text": "and the press a qualified right of access to criminal trials, see id. at 580, 100 S.Ct. 2814, to the examination of jurors during voir dire, see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”), and to preliminary hearings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). The circuits, including ours, have concurred in holding that this right applies to civil as well as criminal proceedings. See Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (asserting that “the First Amendment does secure to the public and to the press a right of access to civil proceedings”); see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988) (holding that the “rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case”); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984) (determining that “the First Amendment embraces a right of access to [civil] trials”) (citation and internal quotation marks omitted). Numerous federal and state courts have also extended the First Amendment protection provided by Richmond Newspapers to particular types of judicial documents, determining that the First Amendment itself, as well as the common law, secures the public’s capacity to inspect such records. See, e.g., In re Providence Journal Co., 293 F.3d 1, 10-13 (1st Cir.2002) (holding that the District of Rhode Island’s blanket policy of refusing to file memoranda of law that counsel were required to submit in connection with motions violated the First Amendment); Phoenix Newspapers, Inc. v. United States Dist. Court, 156 F.3d 940, 948 (9th Cir.1998) (determining that the First Amendment requires “release of transcripts [of closed criminal proceedings] when the competing interests precipitating hearing closure are no longer viable”); United States v. Antar, 38 F.3d 1348, 1359-60 (3d Cir.1994) (stating that “the right of access to voir dire examinations encompasses equally the live proceedings and the transcripts which document those proceedings” and observing that “[i]t is access to the" }, { "docid": "15736673", "title": "", "text": "bona fide.” . Given the political climate of the time and its positions in other cases involving Chinese immigrants, it is probable that the Court would have found the reasons for the law “facially legitimate and bona fide.” In The Chinese Exclusion Case, a similar law, although substantive, was upheld. See The Chinese Exclusion Case, 130 U.S. at 589, 9 S.Ct. 623 (finding a law preventing Chinese laborers from entering the United States, even if they had previously lived there and had certificates authorizing their return, constitutional). In The Chinese Exclusion Case, a procedural law was struck down. Accordingly, a higher standard of review must have been used. . It should also be noted that this language concerning terrorism was strictly dicta. In New York Times v. United States, the Court applied no deferential review to the Government’s actions when faced with a national security threat. See New York Times, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822. . In Houchins, Justices Marshall and Black-mun were unable to participate in the case. The Court voted 4-3, with Justice Stewart concurring only in the judgment. Houchins, 438 U.S. at 16-19, 98 S.Ct. 2588. . The Supreme Court has not yet had occasion to address whether there is a First Amendment right to attend civil proceedings, but a number of circuits, including ours in Brown and Williamson, have addressed the issue. All have agreed the governing test is the two-part Richmond Newspapers test and have further agreed that the press and public have a First Amendment right to attend civil proceedings under that test. See, e.g., Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984); Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308; Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983); see also In re Iowa Freedom of Info. Council, 724 F.2d 658, 661-63 (8th Cir.1983). . The lack of alternative means for the public to access the hearings also informs our conclusion. The Court in" }, { "docid": "12652835", "title": "", "text": "best we can. . The writer has expressed general views on the subject- elsewhere. See Robert D. Sack, Speech: ludicial Skepticism and the Threat of Terrorism, 31 W. New Eng. L.Rev. 1 (2009) (adapted from Law Day speech before the Federal Bar Council, New York City, May 1, 2008). . \"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const., Art. Ill, § 1. . The Supreme Court’s case law has been developed largely in the context of criminal cases. It likely also applies to civil proceedings. See, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004) (applying principles of First Amendment rights of access to federal courts to conclude that there is a \"qualified First Amendment right to inspect [civil] docket sheets, which provide an index to the records of judicial proceedings”); Marc A. Franklin, et al., Mass Media Law: Cases and Materials 596 (8th ed.2011) (\"The Supreme Court has not decided whether there is a constitutional right of access to civil trials, but lower courts have assumed that the First Amendment right to attend civil trials is at least as strong as the right to attend criminal trials.” (citing, inter alia, Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984))). .To be sure, there may be aspects of FISC operations that simply do not warrant secret treatment. Cf. Weisman & Steinhauer, supra (reporting that proposed congressional legislation would require the declassification of all significant FISA court opinions). I doubt, though, that in light of the likely scope of these exceptions, they materially affect my overall observations about in camera FISC proceedings. .I use quotation marks around the term \"leak” for reasons adverted to in New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (Sack, J., dissenting): [T]he use of the term “leak” to identify unauthorized disclosures in this context may be unhelpful. It misleadingly suggests a system that is broken." }, { "docid": "15736674", "title": "", "text": "voted 4-3, with Justice Stewart concurring only in the judgment. Houchins, 438 U.S. at 16-19, 98 S.Ct. 2588. . The Supreme Court has not yet had occasion to address whether there is a First Amendment right to attend civil proceedings, but a number of circuits, including ours in Brown and Williamson, have addressed the issue. All have agreed the governing test is the two-part Richmond Newspapers test and have further agreed that the press and public have a First Amendment right to attend civil proceedings under that test. See, e.g., Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984); Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir.1984); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308; Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983); see also In re Iowa Freedom of Info. Council, 724 F.2d 658, 661-63 (8th Cir.1983). . The lack of alternative means for the public to access the hearings also informs our conclusion. The Court in Houchins noted at some length that alternative means existed for gathering information about prison conditions. Houchins, 438 U.S. at 12-16, 98 S.Ct. 2588. Here, there exist no alternative means for the media to learn about deportation proceedings in special interest cases. . Available discretionary relief include the following: (i) adjustment of status, see 8 U.S.C. § 1255; (ii) cancellation of removal (pursuant to IIRIRA of 1996, this procedure replaces and substantially alters two previous provisions— § 212(c) waiver and suspension of deportation), see 8 U.S.C. § 1229b; (iii) asylum, see 8 U.S.C. § 1158; voluntary departure, see 8 U.S.C. § 1229c; and (iv) registry, see 8 U.S.C. § 1259. . At best, the Government's claimed \"historical proof” shows only that in some cases, there may not be much historical record. This does not mean, however, that there was not a historical practice of one kind or the other. In such cases, it makes more sense to look to more recent practice, similar proceedings, and concentrate on the \"logic” portion of the test. . \"Without publicity," }, { "docid": "23686177", "title": "", "text": "courts” in the sense of the ability of a citizen to see and hear, and in that way to participate in, the workings of the justice system. See, e.g., Huminski v. Corsones, 396 F.3d 53, 56 (2d Cir.2005); Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir.2004); ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir.2004); United States v. Graham, 257 F.3d 143 (2d Cir.2001); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16 (2d Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3478, 87 L.Ed.2d 614 (1985); Joy v. North, 692 F.2d 880 (2d Cir.1982). But it follows not at all, we think, from the presumption of openness however gauged that the open nature of the federal courts is properly weighed as a factor in the Bivens analysis. The presumption of openness is just that, a presumption. In can be, and routinely is, overcome. We regularly hear, on the basis of partially or totally sealed records, not only cases implicating national security or diplomatic concerns, see, e.g., Doe, 576 F.3d 95; In re Terrorist Bombings of U.S. Embassies in E. Afr. v. Odeh, 552 F.3d 93 (2d Cir.2008), cert. denied, - U.S. --, 129 S.Ct. 2778, - L.Ed.2d - (2009), but those involving criminal defendants’ cooperation with prosecutors, see, e.g., United States v. Doe, 314 Fed.Appx. 350 (2d Cir.2008) (summary or der), other criminal matters, see, e.g., U.S. v. Silleg, 311 F.3d 557, 560 (2d Cir.2002), probation department reports, upon which federal criminal sentences are to a significant extent typically based, see, e.g., United States v. Parnell, 524 F.3d 166, 168 n. 1 (2d Cir.2008) (per curiam); United States v. Molina, 356 F.3d 269, 275 (2d Cir.2004), child welfare, see, e.g., Sealed v. Sealed, 332 F.3d 51 (2d Cir.2003), trade secrets, see, e.g., In re Orion Pictures Corp., 21 F.3d 24 (2d Cir.1994), and any manner of other criminal and civil matters. Hardly a week goes by, in our collective experience, in which some document or fact is not considered by a panel of this Court out of the public eye. We accommodate the public interest in proceedings" } ]

[ { "docid": "22712893", "title": "", "text": "against any use of compelled testimony in any manner in other jurisdictions but also absolute immunity in these jurisdictions from any prosecution pertaining to any of the testimony given. The rule which the Court does not adopt finds only illusory support in a dictum of this Court and, as I shall show, affords no more protection against compelled incrimination than does the rule forbidding federal officials access to statements made in exchange for a grant of state immunity. But such a rule would invalidate the immunity statutes of the 50 States since the States are without authority to confer immunity from federal prosecutions, and would thereby cut deeply and significantly into traditional and important areas of state authority and responsibility iri our federal system. It would not only require widespread federal immunization from prosecution in federal investigatory proceedings of persons who violate state criminal laws, regardless of the wishes or needs of local law enforcement officials, but would also deny the States the power to obtain information necessary for state law enforcement and state legislation. That rule, read in conjunction with the holding in Malloy v. Hogan, ante, p. 1, that an assertion of the privilege is all but conclusive, would mean that testimony in state investigatory proceedings, and in trials also, is on a voluntary basis only. The Federal Government would become the only law enforcement agency with effective power to compel testimony in exchange for immunity from prosecution under federal and state law. These considerations warrant some elaboration. I. Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U. S. 273. Sueh testimony constitutes one of the Government’s primary sources of information. The privilege against self-incrimination, safeguarding a complex of significant values, represents a broad exception to governmental power to compel the testimony of the citizenry. The privilege can be claimed in any proceeding, be" } ]

[ { "docid": "8585976", "title": "", "text": "the government’s argument, ruling that a plea agreement and an immunity differ markedly so that the holding in Mabry is inapposite. We agree. As the district court correctly analyzed: [A] grant of immunity is different from a plea bargain in that it can never be formalized by a plea of guilty. On the contrary, the very nature of the agreement is the promise on the part of the government to do nothing. In addition, a grant of immunity differs from a plea agreement in that it in no way involves court approval. In the case of a plea agreement, the court in essence executes the agreement by accepting the plea of guilty. In the case of a grant of immunity, however, only two parties are involved. The government alone makes a decision not to prosecute in exchange for testimony which will, hopefully, lead to a greater number of indictments or convictions. The most that one granted immunity can do is to agree to testify and then await the call of the government. The fact that the government has never called upon Plaster to testify does not now entitle the government to breach its part of the bargain. For these reasons, we agree that Mabry is not dispositive. Further, our reliance on Cooper, now displaced by Mabry, was not the sole basis for our holding that, if authorized, the immunity agreement in this case was binding on the government. Even if we leave aside the enforceability of immunity agreements generally when the person granted immunity is not called upon to incriminate himself, the special circumstances of this case — the government’s decision to proceed by an executory agreement, the fact that the immunity agreement was made in the military context and the fact that more than fifteen years has elapsed between the making of the agreement and the government’s attempt to withdraw from it — all lead to the conclusion that it may not be avoided now. Since there is a not clearly erroneous finding that the agreement was authorized, we conclude that the writ of habeas corpus to enforce it" }, { "docid": "8585975", "title": "", "text": "plea. Stated otherwise, a plea bargain is “a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest”, 467 U.S. at 507, 104 S.Ct. at 2546, 81 L.Ed.2d at 442, so that it may be withdrawn. In deciding Mabry, the Supreme Court overruled our decision in Cooper v. United States, 594 F.2d 12 (4 Cir.1979), which we cited in the prior appeal in ruling that the immunity agreement gave rights to Plaster as soon as it was made. 720 F.2d at 351-54. The government argues that an immunity agreement is to be likened to a plea agreement and therefore it may be withdrawn with impunity until the time that the person immunized has acted thereunder to his prejudice by incriminating himself or by giving the testimony against another as promised. The government argues that Plaster did not act under the immunity agreement so that it has remained exec-utory and may be avoided at the government’s option. The district court rejected the government’s argument, ruling that a plea agreement and an immunity differ markedly so that the holding in Mabry is inapposite. We agree. As the district court correctly analyzed: [A] grant of immunity is different from a plea bargain in that it can never be formalized by a plea of guilty. On the contrary, the very nature of the agreement is the promise on the part of the government to do nothing. In addition, a grant of immunity differs from a plea agreement in that it in no way involves court approval. In the case of a plea agreement, the court in essence executes the agreement by accepting the plea of guilty. In the case of a grant of immunity, however, only two parties are involved. The government alone makes a decision not to prosecute in exchange for testimony which will, hopefully, lead to a greater number of indictments or convictions. The most that one granted immunity can do is to agree to testify and then await the call of the government. The fact that" }, { "docid": "16314162", "title": "", "text": "to the terms of any plea bargain or immunity agreement it makes. See Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) (plea agreement); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (plea agreement); In re Arnett, 804 F.2d 1200 (11th Cir.1986) (plea agreement); Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982) (immunity); United States v. Weiss, 599 F.2d 730, 737 (5th Cir.1979) (immunity) (Tuttle, J.) (“To protect the voluntariness of a waiver of fifth amendment rights, where a plea, confession, or admission is based on a promise of a plea bargain or immunity, the government must keep its promise.”). See also Plaster v. United States, 789 F.2d 289 (4th Cir.1986) (immunity); Johnson v. Lumpkin, 769 F.2d 630 (9th Cir.1985) (plea agreement); United States v. Carter, 454 F.2d 426, 427 (4th Cir.1972) (in banc) (immunity) (“if the promise was made to defendant as alleged and the defendant relied upon it in incriminating himself, the government should be held to abide by its terms”). This is true because by entering into a plea agreement the defendant forgoes his important constitutional right to a jury trial, or by testifying under a grant of immunity he forgoes his fifth amendment privilege. In either case courts will enforce the agreement when the defendant or witness has fulfilled his side of the bargain. Although federal law no longer provides for formal, statutory grants of transactional immunity, a prosecutor may, as in this case, informally grant transactional immunity to a witness in return for his cooperation in a criminal case. Similarly, although 18 U.S.C. §§ 6002-6003 provide for court-supervised grants of use immunity, prosecutors may extend such immunity informally as well. Harvey did not receive a formal (statutory) grant of transactional or use immunity, yet because due process requires us to enforce the government’s agreement with Harvey, we apply the same rules and method of analysis to an informal grant of use or transactional immunity as we would to a formal grant. E.g., United States v, Quatermain, 613 F.2d 38, 41 (3d Cir.), cert. denied, 446" }, { "docid": "2922659", "title": "", "text": "normal contract law, Plaster would be entitled to his “expectation” value from fulfillment of the government’s promise that he would be immune from any further prosecution, German or American, arising out of the German murder. Under the present circumstances, it would appear that habeas corpus relief would be required in order to grant Plaster an appropriate and effective remedy. First, simply permitting Plaster to exercise his right to a trial in Germany is to give him no remedy at all for his lost expectation value. In addition, we do not think that an award of monetary damages may seriously be regarded as an appropriate remedy for the breach of a promise not to extradite a person to another country to stand trial for murder. Moreover, the remedy for the breach of the agreement must be tested against principles of fundamental fairness, pursuant to the due process clause of the Fifth Amendment. Plaster in good faith signed the immunity agreement and has never refused to perform his part of the bargain. Instead, as noted above, it was through the sole fault of the government in losing the signed agreement mailed from Rarick to Hart, and in — inexplicably—not having any further communication between Rarick and Hart, that Plaster was never called upon to fulfill his part of the bargain. Some fifteen years then elapsed, during which time Plaster was released from Wisconsin prison and began a productive new life on the well-founded belief that he had put these events behind him. Under these circumstances, we think that fundamental fairness could well require habeas corpus relief and enforcement of the government’s promise not to extradite Plaster to Germany for the 1965 murder. In addition, we do not think that the foreign policy implications of a refusal to extradite Plaster are sufficient to divest the jurisdiction of the district court to grant habeas corpus relief. First, an underlying premise of Reid v. Covert, supra, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, is that the mere presence of treaty obligations is generally insufficient to override constitutional rights. Second, the facts of this" }, { "docid": "2922665", "title": "", "text": "due process clause of the Fifth and Fourteenth Amendments. Thus, we found that principles of contract law, which implicate entirely different concerns of economic efficiency in a situation involving equally strong parties, may not properly be applicable to the prosecutor-defendant agreement context. Indeed, we noted that fundamental fairness under the specific circumstances in Cooper — an unambiguous and reasonable proposal, made by a prosecutor with apparent, and probably actual, authority, relayed to and assented to by the defendant, and withdrawn by sheer fortuity, just before the defense lawyer could accept, because of second-guessing by a superior — required enforcement of the agreement despite its not having been accepted under principles of contract law. We have subsequently held, however, that principles of fundamental fairness are satisfied by the application of normal contract principles in the plea bargain context where the contested issues involve the content of the agreement or the authority of the parties to enter into the agreement See United States v. McIntosh, 612 F.2d 835 (4 Cir.1979). It thus is clear that the breach by the government of an enforceable prosecutor-defendant agreement violates the defendant’s right to due process of law. In the present case, however, the government argues that two fatal flaws, overlooked by the district court, prevented formation of an enforceable agreement. First, the government argues that immunity agreements only become enforceable upon self-incrimination by the accused, and that Plaster never incriminated himself here. In addition, the government submits that the military officials had no actual and/or apparent authority to bind the President of the United States not to extradite Plaster, as the immunity agreement purported to do. The government’s first argument is that the immunity grant made by the Army to Plaster could not become enforceable by him unless and until he incriminated himself, which he never did. The asserted basis for this argument is the rule that once the government grants an individual immunity, he no longer may invoke his Fifth Amendment privilege against self-incrimination. See Murphy v. Waterfront Commission, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609-10, 12 L.Ed.2d 678 (1964). The government reasons" }, { "docid": "2922645", "title": "", "text": "habeas corpus petition. The court then held several hearings at which Hart, Plaster, Lent and York testified, and received into evidence various documents, including Rarick’s deposition. The court also received numerous briefs from the parties. In its opinion, the district court found that article 7 of the 1978 Treaty barred extradition by the United States of American nationals if to do so would violate their constitutional rights. Moreover, the court found that, apart from any restrictions in the treaty, the United States may not, as a matter of constitutional law, extradite an individual if such extradition would violate his or her constitutional rights. Thus, although the district court agreed with the magistrate that the alleged crime fell within the scope of the treaty and that there existed probable cause to believe that Plaster committed the crime, the court proceeded to examine whether Plaster’s extradition would violate his due process rights. The district court, determining that the right to be treated fairly by the government is at the core of the due process clause, barred the proposed extradition, which, in its view, would be in violation of the terms of the immunity agreement between Plaster and the government. Moreover, the court found that the absence of reliance by Plaster upon the immunity agreement (i.e., self-incrimination) would not defeat his right to enforcement of the bargain. Finally, the district court found that Hart had the authority, as a representative of the United States government, to bind the United States government not to extradite Plaster, and that that promise had, in the context of this case, been a reasonable tactical decision for Hart to make. Thus, concluding that extradition would violate the enforceable terms of the immunity agreement and thus Plaster’s right to fundamental fairness, the district court granted the writ of habeas corpus. The United States now appeals. IV — Discussion Before us, the United States advances three principal arguments. First, it contends that the district court exceeded its limited scope of review by inquiring into whether extradition would violate Plaster’s constitutional rights. Second, the government submits that even if extradition would" }, { "docid": "2922666", "title": "", "text": "by the government of an enforceable prosecutor-defendant agreement violates the defendant’s right to due process of law. In the present case, however, the government argues that two fatal flaws, overlooked by the district court, prevented formation of an enforceable agreement. First, the government argues that immunity agreements only become enforceable upon self-incrimination by the accused, and that Plaster never incriminated himself here. In addition, the government submits that the military officials had no actual and/or apparent authority to bind the President of the United States not to extradite Plaster, as the immunity agreement purported to do. The government’s first argument is that the immunity grant made by the Army to Plaster could not become enforceable by him unless and until he incriminated himself, which he never did. The asserted basis for this argument is the rule that once the government grants an individual immunity, he no longer may invoke his Fifth Amendment privilege against self-incrimination. See Murphy v. Waterfront Commission, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609-10, 12 L.Ed.2d 678 (1964). The government reasons that it got no consideration for its promise to grant immunity in the future, in that Plaster’s return promise to testify fully thereafter is nothing more than an ac-knowledgement of his legal duty in that event. Indeed, contends the government, an executory immunity agreement is never enforceable for want of consideration; such an agreement is enforceable only after the defendant’s “performance,” i.e., his self-incrimination. Although we of course do not decide whether executory immunity agreements generally are enforceable by the defendant, we conclude that the present agreement was not void for lack of consideration. First, the decision to proceed by means of an executory immunity agreement was the government’s. That decision may well have reflected a pragmatic realization that willing participants who have agreed in advance to aid the government make better and more cooperative witnesses than do those persons brought into court against their will, given immunity on the spot, and asked questions for which they have not prepared. Second, the government’s argument overlooks the fact that this immunity agreement arose in the military," }, { "docid": "2922667", "title": "", "text": "that it got no consideration for its promise to grant immunity in the future, in that Plaster’s return promise to testify fully thereafter is nothing more than an ac-knowledgement of his legal duty in that event. Indeed, contends the government, an executory immunity agreement is never enforceable for want of consideration; such an agreement is enforceable only after the defendant’s “performance,” i.e., his self-incrimination. Although we of course do not decide whether executory immunity agreements generally are enforceable by the defendant, we conclude that the present agreement was not void for lack of consideration. First, the decision to proceed by means of an executory immunity agreement was the government’s. That decision may well have reflected a pragmatic realization that willing participants who have agreed in advance to aid the government make better and more cooperative witnesses than do those persons brought into court against their will, given immunity on the spot, and asked questions for which they have not prepared. Second, the government’s argument overlooks the fact that this immunity agreement arose in the military, rather than civilian, context. In United States v. Kirsch, 15 C.M.A. 84 (1964), the Court of Military Appeals held that a commanding general has the authority, under the Uniform Code of Military Justice, 10 U.S.C. §§ 801 et seq. (1964 ed.), to grant immunity from prosecution for military offenses to prospective witnesses under his command. 15 C.M.A. at 92-95. The court emphasized that, due to the exigencies inherent in the military context, the immunity power of a commanding general must be construed so as to provide him with the ability to make a valid and binding grant of immunity or even pardon so as to get information from the accused or in any other way to aid the military effort. We thus find that General Shellman’s decision to make a binding immunity agreement was well within the “transcendental nature of the power of a commander having courts-martial authority to exonerate from punishment.” Id. at 92. Moreover, as discussed above, we must examine the propriety of the government’s attempted withdrawal from the agreement not simply as" }, { "docid": "2922669", "title": "", "text": "a matter of contract law, but rather against a standard of fundamental fairness. In this regard, the fifteen years that elapsed between the time that the agreement was signed and the time that the government tried to withdraw from the agreement must be considered. Although Plaster did not incriminate himself, he did for all those years believe, based on the government’s promise, that the incident had been put behind him and that he could start a new life. We think, therefore, that it would be fundamentally unfair to permit' the government to withdraw from the agreement at this late date. Thus, for these reasons, we conclude that the agreement is not invalid for want of consideration. The second principal question is whether General Shellman and Colonel Hart had the authority to include in the immunity agreement a promise, binding on the President of the United States, not to extradite Plaster. Although we have indicated that precise formalisms as to actual authority will not be controlling as regards the enforceability of plea bargains, see United States v. Carter, supra, 454 F.2d at 428, we have held that there must at a minimum be apparent authority. See United States v. McIntosh, supra, 612 F.2d at 837; see also Cooper v. United States, supra, 594 F.2d at 19 (noting the presence of apparent, and probably actual, authority); United States v. Hammerman, supra, 528 F.2d at 330-31. Within the parameters established by the Constitution, the ultimate decision to extradite is, as has frequently been noted, reserved to the Executive as among its powers to conduct foreign affairs. See Escobedo v. United States, 623 F.2d 1098, 1105 (5 Cir.) (citing cases), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980); Peroff v. Hylton, 542 F.2d 1247, 1249 (4 Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977). The “Executive,” however, cannot be construed so broadly as to include all officers of the executive branch of government. Instead, we think it plain that the decision to extradite is reserved to the President and, by a limited delegation of authority," }, { "docid": "8585980", "title": "", "text": "aspects of Plaster’s case independently require issuance of the writ. And unsound, because pledges of immunity — like other prosecutorial contracts — are generally not enforceable unless the recipient has performed his obligation and suffered actual prejudice by some self-incriminating act. Only the extraordinary delay between the offer and withdrawal of immunity justifies a contrary result in this case, and I restrict my concurrence to that narrower ground. If a defendant has not made inculpatory statements on the basis of an offer of immunity, withdrawal of the offer ordinarily will not interfere with the defendant’s right to a fair trial. The majority implies that appellate courts may ignore this absence of prejudice and arrest the criminal process simply because government attorneys have repudiated their offer. The Supreme Court has cautioned against this impulse to place the prosecution on trial, Ma-bry v. Johnson, 467 U.S. 504, 511,104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984) (“The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.”). So long as the accused has not been prejudiced, the government’s etiquette is not dispositive. Irregularities that do not ■affect substantial rights are to be disregarded. See United States v. Mechanik, — U.S.-,-, 106 S.Ct. 938, 942, 89 L.Ed.2d 50 (1986) (and cases cited therein). The correct approach may be found in this court’s leading general statement about the enforcement of immunity agreements: “if the promise was made to defendant as alleged and the defendant relied upon it in incriminating himself and others, the government should be held to abide by its terms.” United States v. Carter, 454 F.2d 426, 427 (4th Cir.1972) (en banc) (emphasis added); see also Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985); Rowe v. Griffin, 676 F.2d 524, 527-28 (11th Cir.1982). Subject to exceptions like the one presented here, the converse of the Carter formulation is equally accurate: if the defendant has not relied upon the promise in incriminating himself, the government should not be held to abide by its terms. United States v." }, { "docid": "2922658", "title": "", "text": "542, makes a limited inquiry into the validity of the § 3184 extraditability determination. B — Power to Grant Habeas Corpus Relief The government’s second argument is that even if an immunity agreement consti tuting a valid executory contract existed and even if extradition would violate that contract, the district court lacked jurisdiction in this habeas corpus proceeding because granting such relief would be an impermissible remedy for that violation. In this regard, the government points particularly to the absence of detrimental reliance by Plaster and to the allegedly weighty foreign affairs implications of a refusal to extradite as reasons why habeas corpus relief should not be available. As to the absence of detrimental reliance or part-performance by Plaster, it is plain that, under normal principles of contract law, each side to an executory contract is entitled to its “expectation” from mutual performance. Neither side is permitted unilaterally to cancel the agreement and demand restoration of the precontract situation simply because the other party has not yet performed or relied to its detriment. Hence, under normal contract law, Plaster would be entitled to his “expectation” value from fulfillment of the government’s promise that he would be immune from any further prosecution, German or American, arising out of the German murder. Under the present circumstances, it would appear that habeas corpus relief would be required in order to grant Plaster an appropriate and effective remedy. First, simply permitting Plaster to exercise his right to a trial in Germany is to give him no remedy at all for his lost expectation value. In addition, we do not think that an award of monetary damages may seriously be regarded as an appropriate remedy for the breach of a promise not to extradite a person to another country to stand trial for murder. Moreover, the remedy for the breach of the agreement must be tested against principles of fundamental fairness, pursuant to the due process clause of the Fifth Amendment. Plaster in good faith signed the immunity agreement and has never refused to perform his part of the bargain. Instead, as noted above, it" }, { "docid": "8585977", "title": "", "text": "the government has never called upon Plaster to testify does not now entitle the government to breach its part of the bargain. For these reasons, we agree that Mabry is not dispositive. Further, our reliance on Cooper, now displaced by Mabry, was not the sole basis for our holding that, if authorized, the immunity agreement in this case was binding on the government. Even if we leave aside the enforceability of immunity agreements generally when the person granted immunity is not called upon to incriminate himself, the special circumstances of this case — the government’s decision to proceed by an executory agreement, the fact that the immunity agreement was made in the military context and the fact that more than fifteen years has elapsed between the making of the agreement and the government’s attempt to withdraw from it — all lead to the conclusion that it may not be avoided now. Since there is a not clearly erroneous finding that the agreement was authorized, we conclude that the writ of habeas corpus to enforce it properly issued. AFFIRMED. . There is, however, evidence in the record that the government’s contention may be factually inaccurate. In the habeas corpus proceeding in the district court, Plaster testified that, after he entered into the immunity agreement on the advice of his then counsel, he was interviewed and gave a detailed accounting of all activities in Germany concerning the charges pending against him and that he did so because he understood that he could never be prosecuted for any information that he gave in the statement, but that he would receive a dishonorable discharge. He said that his interrogators represented that they wanted to settle the matter and make payments to the German family involved. While he does not dispute that he never was called upon to testify against his co-defendants, we were told in oral argument that Burt has been tried and convicted in Germany and that Plaster stated his willingness to testify against him, but Plaster’s offer was refused because he asserted his own immunity. The only evidence to controvert the inescapable" }, { "docid": "8585982", "title": "", "text": "Calimano, 576 F.2d 637, 640 (5th Cir.1978); see also Roe v. United States Attorney, 618 F.2d 980 (2d Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 152, 66 L.Ed.2d 70 (1980). These principles have been most clearly articulated in the closely related context of prosecutorial agreements involving guilty pleas. The Supreme Court has refused to enforce such arrangements after the government has repudiated but before the defendant has been prejudiced: A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of the court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Mabry v. Johnson, 467 U.S. at 507-08, 104 S.Ct. at 2546, overruling Cooper v. United States, 594 F.2d 12 (4th Cir.1979). The same analysis applies to a promise to forbear prosecution in order to secure testimony. A grant of immunity standing alone is also “a mere executory agreement” that is “without constitutional significance;” it is the ensuing privileged statement that implicates the Constitution. The majority tries to avoid Mabry v. Johnson by suggesting several purported differences between a plea bargain and a grant of immunity. Ante at 293. As purely descriptive propositions, these contrasts suffer from a tantalizing imprecision. Immunity may be “formalized” by an incriminating statement just as a plea agreement is “formalized” by a capitulating statement. Both arrangements might commit the government to “do nothing” in some sense: to refrain from prosecution, for example, or to abstain from recommendation at sentencing. And the participation of the court will in each situation depend on the nature of the agreement. More important, the majority advances no reason that these proposed distinctions between an immunity offer and a plea agreement should create any difference in enforcement where the defendant has not prejudiced himself. Nor could the majority bridge this analytic gap, for the principle behind Mabry v. Johnson applies equally to the two cases. A grant of immunity, like a plea bargain, sacrifices constitutional protection from self-incrimination in exchange for prosecutorial protection" }, { "docid": "8585984", "title": "", "text": "from judicial process. The exchange is in either instance sealed only by the disadvantageous acts of the defendant. Not surprisingly, courts usually see immunity agreements and plea bargains as a single legal category. In many cases, the two covenants are integrated in one deal. See, e.g., United States v. Cooper; United States v. Carter; United States v. I.H. Hammerman, II, 528 F.2d 326 (4th Cir. 1975). In other cases, courts rely explicitly on a single set of interchangeable principles to resolve enforcement issues. See, e.g., United States v. Brimberry, 744 F.2d 580, 587 (7th Cir.1984); United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983); Rowe v. Griffin, 676 F.2d at 528. Indeed, this court adopted the same analogy in the earlier appeal in this very case. Plaster v. United States, 720 F.2d 340, 351-54 (4th Cir.1983). The Court’s earlier reasoning remains correct today. If we must address “the enforceability of immunity agreements generally where the person granted immunity is not called upon to incriminate himself,” ante at 293, we should acknowledge that the plea bargain authority is relevant, that Mabry v. Johnson will control most cases, and that, without prejudicial reliance, the defendant usually will not be able to hold the government to its offer. But we need not speak so broadly; we need only decide this case. See Plaster v. United States, 720 F.2d at 353 (“we of course do not decide whether executory immunity agreements generally are enforceable by the defendant”). And this case presents special circumstances that independently justify issuance of the writ. The government promised Plaster immunity approximately fifteen years ago. During that time he has established a home and pursued a career — he has relied on the immunity in making a new life. Fundamental fairness requires that we recognize the long duration of that reliance. For that reason, I concur in the affirmance of the district court’s judgment." }, { "docid": "8585974", "title": "", "text": "term “extradition” in the communications between Hart and the executive branches of the government. It would have been extremely unusual for them to have spoken in terms of a treaty yet to be negotiated and ratified. Extradition is the return of an accused to the place at which he allegedly committed a crime to stand trial on the charges made against him. Certainly this is the substance of what was discussed between Hart and the representatives of the Department of Defense and State. It is a mere matter of semantics as to whether the word “extradition” was used or whether parties spoke of returning Plaster to West Germany for trial. In sum, we conclude that the finding of the district court that the promise not to extradite was authorized is not clearly erroneous. III. Mabry v. Johnson, supra, held that a criminal defendant’s acceptance of a prosecutor’s proposed plea bargain does not create a constitutional right to have the bargain specifically enforced where the prosecutor withdraws the offer prior to the acceptance of the guilty plea. Stated otherwise, a plea bargain is “a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest”, 467 U.S. at 507, 104 S.Ct. at 2546, 81 L.Ed.2d at 442, so that it may be withdrawn. In deciding Mabry, the Supreme Court overruled our decision in Cooper v. United States, 594 F.2d 12 (4 Cir.1979), which we cited in the prior appeal in ruling that the immunity agreement gave rights to Plaster as soon as it was made. 720 F.2d at 351-54. The government argues that an immunity agreement is to be likened to a plea agreement and therefore it may be withdrawn with impunity until the time that the person immunized has acted thereunder to his prejudice by incriminating himself or by giving the testimony against another as promised. The government argues that Plaster did not act under the immunity agreement so that it has remained exec-utory and may be avoided at the government’s option. The district court rejected" }, { "docid": "8585978", "title": "", "text": "properly issued. AFFIRMED. . There is, however, evidence in the record that the government’s contention may be factually inaccurate. In the habeas corpus proceeding in the district court, Plaster testified that, after he entered into the immunity agreement on the advice of his then counsel, he was interviewed and gave a detailed accounting of all activities in Germany concerning the charges pending against him and that he did so because he understood that he could never be prosecuted for any information that he gave in the statement, but that he would receive a dishonorable discharge. He said that his interrogators represented that they wanted to settle the matter and make payments to the German family involved. While he does not dispute that he never was called upon to testify against his co-defendants, we were told in oral argument that Burt has been tried and convicted in Germany and that Plaster stated his willingness to testify against him, but Plaster’s offer was refused because he asserted his own immunity. The only evidence to controvert the inescapable inference that Plaster incriminated himself when he gave the requested statement is an affidavit of the Chief, Foreign Claims Branch, U.S. Army Claims Service, that his personnel would not have sought such a statement, and that, if one were sought, would have not discussed immunity from criminal prosecution, and that settlement of claims and criminal prosecutions were unrelated activities. The Chief, however, claims no actual knowledge of what Plaster’s interrogators said to Plaster. The district court did not resolve this factual issue, and because of our view of the legal effect of the immunity agreement in this case, we find it unnecessary to remand the case for resolution of the conflict. WILKINSON, Circuit Judge, concurring separately: I join in the majority’s decision to affirm the judgment, but I cannot agree with the majority’s decision to rely in part on “the enforceability of immunity agreements generally when the person granted immunity is not called upon to incriminate himself.” Ante at 293. This position is both unnecessary and unsound. Unnecessary, because the court recognizes that the extraordinary" }, { "docid": "8585979", "title": "", "text": "inference that Plaster incriminated himself when he gave the requested statement is an affidavit of the Chief, Foreign Claims Branch, U.S. Army Claims Service, that his personnel would not have sought such a statement, and that, if one were sought, would have not discussed immunity from criminal prosecution, and that settlement of claims and criminal prosecutions were unrelated activities. The Chief, however, claims no actual knowledge of what Plaster’s interrogators said to Plaster. The district court did not resolve this factual issue, and because of our view of the legal effect of the immunity agreement in this case, we find it unnecessary to remand the case for resolution of the conflict. WILKINSON, Circuit Judge, concurring separately: I join in the majority’s decision to affirm the judgment, but I cannot agree with the majority’s decision to rely in part on “the enforceability of immunity agreements generally when the person granted immunity is not called upon to incriminate himself.” Ante at 293. This position is both unnecessary and unsound. Unnecessary, because the court recognizes that the extraordinary aspects of Plaster’s case independently require issuance of the writ. And unsound, because pledges of immunity — like other prosecutorial contracts — are generally not enforceable unless the recipient has performed his obligation and suffered actual prejudice by some self-incriminating act. Only the extraordinary delay between the offer and withdrawal of immunity justifies a contrary result in this case, and I restrict my concurrence to that narrower ground. If a defendant has not made inculpatory statements on the basis of an offer of immunity, withdrawal of the offer ordinarily will not interfere with the defendant’s right to a fair trial. The majority implies that appellate courts may ignore this absence of prejudice and arrest the criminal process simply because government attorneys have repudiated their offer. The Supreme Court has cautioned against this impulse to place the prosecution on trial, Ma-bry v. Johnson, 467 U.S. 504, 511,104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984) (“The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are" }, { "docid": "8585983", "title": "", "text": "ensuing privileged statement that implicates the Constitution. The majority tries to avoid Mabry v. Johnson by suggesting several purported differences between a plea bargain and a grant of immunity. Ante at 293. As purely descriptive propositions, these contrasts suffer from a tantalizing imprecision. Immunity may be “formalized” by an incriminating statement just as a plea agreement is “formalized” by a capitulating statement. Both arrangements might commit the government to “do nothing” in some sense: to refrain from prosecution, for example, or to abstain from recommendation at sentencing. And the participation of the court will in each situation depend on the nature of the agreement. More important, the majority advances no reason that these proposed distinctions between an immunity offer and a plea agreement should create any difference in enforcement where the defendant has not prejudiced himself. Nor could the majority bridge this analytic gap, for the principle behind Mabry v. Johnson applies equally to the two cases. A grant of immunity, like a plea bargain, sacrifices constitutional protection from self-incrimination in exchange for prosecutorial protection from judicial process. The exchange is in either instance sealed only by the disadvantageous acts of the defendant. Not surprisingly, courts usually see immunity agreements and plea bargains as a single legal category. In many cases, the two covenants are integrated in one deal. See, e.g., United States v. Cooper; United States v. Carter; United States v. I.H. Hammerman, II, 528 F.2d 326 (4th Cir. 1975). In other cases, courts rely explicitly on a single set of interchangeable principles to resolve enforcement issues. See, e.g., United States v. Brimberry, 744 F.2d 580, 587 (7th Cir.1984); United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983); Rowe v. Griffin, 676 F.2d at 528. Indeed, this court adopted the same analogy in the earlier appeal in this very case. Plaster v. United States, 720 F.2d 340, 351-54 (4th Cir.1983). The Court’s earlier reasoning remains correct today. If we must address “the enforceability of immunity agreements generally where the person granted immunity is not called upon to incriminate himself,” ante at 293, we should acknowledge that the plea" }, { "docid": "2922646", "title": "", "text": "proposed extradition, which, in its view, would be in violation of the terms of the immunity agreement between Plaster and the government. Moreover, the court found that the absence of reliance by Plaster upon the immunity agreement (i.e., self-incrimination) would not defeat his right to enforcement of the bargain. Finally, the district court found that Hart had the authority, as a representative of the United States government, to bind the United States government not to extradite Plaster, and that that promise had, in the context of this case, been a reasonable tactical decision for Hart to make. Thus, concluding that extradition would violate the enforceable terms of the immunity agreement and thus Plaster’s right to fundamental fairness, the district court granted the writ of habeas corpus. The United States now appeals. IV — Discussion Before us, the United States advances three principal arguments. First, it contends that the district court exceeded its limited scope of review by inquiring into whether extradition would violate Plaster’s constitutional rights. Second, the government submits that even if extradition would violate Plaster’s rights, the district court had no jurisdiction to grant a writ of habeas corpus, because that would, it is alleged, be an impermissible remedy for that violation. Finally, the government argues that, in any event, the district court erred in holding that, as a matter of law, extradition would violate Plaster’s constitutional rights. We consider them seriatim. A — Scope of Review The district court found two bases for its asserted jurisdiction to determine whether extradition would violate Plaster’s constitutional rights. First, the court interpreted article 7 of the 1978 Treaty, which provides that the executive branch of the requested country shall have the power to extradite its own nationals “provided the law of the Requested State does not so preclude,” as barring the extradition of American nationals where such extradition would violate the Constitution or laws of the United States. The government concedes that the district court acted within its proper scope of review in examining whether the terms of the treaty bar extradition, but asserts that the district court misinterpreted the" }, { "docid": "2922668", "title": "", "text": "rather than civilian, context. In United States v. Kirsch, 15 C.M.A. 84 (1964), the Court of Military Appeals held that a commanding general has the authority, under the Uniform Code of Military Justice, 10 U.S.C. §§ 801 et seq. (1964 ed.), to grant immunity from prosecution for military offenses to prospective witnesses under his command. 15 C.M.A. at 92-95. The court emphasized that, due to the exigencies inherent in the military context, the immunity power of a commanding general must be construed so as to provide him with the ability to make a valid and binding grant of immunity or even pardon so as to get information from the accused or in any other way to aid the military effort. We thus find that General Shellman’s decision to make a binding immunity agreement was well within the “transcendental nature of the power of a commander having courts-martial authority to exonerate from punishment.” Id. at 92. Moreover, as discussed above, we must examine the propriety of the government’s attempted withdrawal from the agreement not simply as a matter of contract law, but rather against a standard of fundamental fairness. In this regard, the fifteen years that elapsed between the time that the agreement was signed and the time that the government tried to withdraw from the agreement must be considered. Although Plaster did not incriminate himself, he did for all those years believe, based on the government’s promise, that the incident had been put behind him and that he could start a new life. We think, therefore, that it would be fundamentally unfair to permit' the government to withdraw from the agreement at this late date. Thus, for these reasons, we conclude that the agreement is not invalid for want of consideration. The second principal question is whether General Shellman and Colonel Hart had the authority to include in the immunity agreement a promise, binding on the President of the United States, not to extradite Plaster. Although we have indicated that precise formalisms as to actual authority will not be controlling as regards the enforceability of plea bargains, see United States" } ]

[ { "docid": "1917006", "title": "", "text": "opportunity of the bankruptcy court to judge the credibility of the witnesses.” Bankr.R. 8013. Finally, both “lower courts’ findings * * * are binding upon this court unless clearly erroneous.” In re Long, 774 F.2d 875, 877 (8th Cir.1985). A. Proof of Intent Section 523(a)(2)(A) of the Bankruptcy Code provides: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt&emdash; ****** (2)for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by&emdash; (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. 11 U.S.C. § 523(a)(2)(A). To succeed in a section 523(a)(2)(A) claim, the creditor must prove the following elements: (1) that the debtor made false representations; (2) that at the time made, the debtor knew them to be false; (3) that the representations were made with the intention and purpose of deceiving the creditor; (4) that the creditor reasonably relied on the representations; and, (5) that the creditor sustained the alleged injury as a proximate result of the representations having been made. In re Jenkins, 61 B.R. 30, 39 (Bankr.D.N.D.1986). Creditors bear the burden of proof, Bankr.R. 4005, and must prove each element of their claim by clear and convincing evidence. In re Canon, 43 B.R. 733, 735 (Bankr.W.D.Mo.1984). Moreover, any evidence presented must be viewed consistent with the congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally against the debtor, thus effectuating the fresh start policy of the Code. In re Jenkins, 61 B.R. at 39. These considerations, however, “are applicable only to honest debtors.” In re Hunter, 771 F.2d at 1130. Because direct proof of intent (ie., the debtor’s state of mind) is nearly impossible to obtain, the creditor may present evidence of the surrounding circumstances from which intent may be inferred. See In re Simpson, 29 B.R. 202, 211 (Bankr.N.D.Ia.1983). Accord In re Frye, 48 B.R. 422, 427 (Bankr.M.D.Ala.1985); In re Brown, 55 B.R. 999, 1004 (Bankr.E.D.N.Y.1986). When the creditor introduces circumstantial evidence" } ]

[ { "docid": "6705622", "title": "", "text": "bankruptcy case, the trustee sought to have that debt excepted from discharge on the basis of actual fraud under § 523(a)(2)(A), Footnote 63 in Vickery directs the bankruptcy court as follows: “Upon remand to the bankruptcy court, we note also that we have previously stated that the ‘state law of fraud controls with respect to whether fraud has occurred, while bankruptcy law controls with respect to the determination of nondischargeability.' ” (quoting Lang, 293 B.R. at 513), Because the only issue on appeal in Vickery was the dis-chargeability of the debt, not the validity or amount of the debt, this statement is dicta. . Husky Int'l Elecs., Inc. v. Ritz, — U.S. -, 136 S.Ct. 1581, 1586, 194 L.Ed.2d 655 (2016); Grogan, 498 U.S. at 283-84, 111 S.Ct. 654. . Complaint at 8, in Appellant’s App. at 15. . Order at 6, in Appellant's App. at 155 (\"Hatfield argues that the wrongful death judgment against Promise McLoud can be imposed on Thompson based on a the theory of piercing the corporate veil. ... The Court does.not address such argument as the [Summary Judgment] Motion seemingly assumes that the debt is a debt of Thompson,”). . Husky, 136 S.Ct. at 1587, 1591. . Id. at 1587 (“[in fraudulent conveyance cases], the fraudulent conduct is not in dishonestly inducing a creditor to extend a debt. It is in the acts of concealment and hindrance.”). . Id. at 1586. . Id. (quoting Neal v. Clark, 95 U.S. 704, 709, 24 L.Ed. 586 (1877)); see also In re Vickery, 488 B.R. at 690 (defining \"actual\" fraud as \"involving fraudulent intent,\"). . Id. at 1586. . Id. . Husky, 136 S.Ct. at 1586. . Id. at 1587. . See Id. at 1585-86. . Vickery, 488 B.R. at 690 (quoting Mellon Bank, N.A. v. Vitanovich (In re Vitanovich), 259 B.R. 873, 877 (6th Cir. BAP 2001)). . We need not decide what portion of this conduct would be sufficient to establish actual fraud. . Order at 3-5, in Appellant’s App. at 152-54. Unless otherwise stated, all subsequent facts are drawn from the Order. . Order at" }, { "docid": "4734794", "title": "", "text": "Cir.1985). IV. DISCUSSION A. Dischargeability of Debts Arising from Fraudulent Conduct Section 523 of the Bankruptcy Code enumerates specific exceptions to the discharge-ability of debts. The Bank contends that its judgment debt arises from fraudulent conduct of the Debtor, and as such is non-dischargeable under section 523(a)(2)(A), which provides in relevant part: (a) A discharge under section 727 ... 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. 11 U.S.C. § 523(a)(2)(A). In order to except fraud from dischargeability under section 523(a)(2)(A), the Bank must establish the following four elements: (1) the Debtor obtained money or credit renewed from the Bank through representations which he either knew to be false or made with such reckless disregard for the truth as to constitute willful misrepresentation; (2) the Debtor possessed scienter, i.e. an intent to deceive the Bank; (3) the Bank actually relied on the Debtor’s misrepresentations resulting in loss; and (4) the Bank’s reliance was reasonable. See In re Scarlata, 979 F.2d 521, 525 (7th Cir.1992), citing In re Kimzey, 761 F.2d 421, 423-424 (7th Cir.1985); Dornik v. Maurice, 138 B.R. 890, 895 (Bankr.N.D.Ill.1992), aff'd, No. 92 C 4043, slip op., 1992 WL 308535 (N.D.Ill. Oct. 19, 1992); In re Tapper, 123 B.R. 594, 600 (Bankr.N.D.Ill.1991). The Seventh Circuit has held that an intent to deceive may logically be inferred from a false representation which the debtor knows or should know will induce another to advance money to the debtor. Kimzey, 761 F.2d at 424; FTC v. Austin, 138 B.R. 898, 914 (Bankr.N.D.Ill.1992). The finding of fact as to the fraudulent intent of the debtor will [often] have to be established by circumstantial evidence in most cases as direct evidence of the defendant’s state of mind at the time is seldom expressly indicated. In re Guy, 101 B.R. 961, 978 (Bankr.N.D.Ind.1988), quoting In re Fenninger, 49 B.R. 307, 310" }, { "docid": "1521864", "title": "", "text": "the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of truth. No definite and invariable rule can be laid down as a general proposition defining fraud, and it includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. Stapleton v. Holt, 207 Okla. 443, 250 P.2d 451, 453-54 (Okla.1952). Accord, Mellon Bank, N.A. v. Vitanovich (In re Vitanovich), 259 B.R. 873, 877 (6th Cir. BAP 2001) (“When a debtor intentionally engages in a scheme to deprive or cheat another of property or a legal right,” the debtor has committed actual fraud.) Under these principles, a debtor commits actual fraud for purposes of § 523(a)(2)(A) if the debtor uses a credit card without the actual, subjective intent to pay the debt thereby incurred. E.g., Citibank (South Dakota), N.A. v. Brobsten (In re Brobsten), 2001 WL 34076352 (Bankr.C.D.Ill. Nov.20, 2001); cf. Chase Manhattan Bank (U.S.A.), N.A. v. Carpenter (In re Carpenter), 53 B.R. 724, 730 (Bankr.N.D.Ga.1985) (holding that representation is necessary element of actual fraud and that use of credit card is representation of intent to pay, but finding creditor had not proved subjective intent not to pay). In Citibank (South Dakota), N.A. v. Kim (In re Kim), Civ. No. 1:02-CV-0314-JOF (N.D.Ga. Apr. 1, 2003) (slip opinion), the District Court held that, under First Nat. Bank of Mobile v. Roddenberry (In re Roddenberry), 701 F.2d 927 (11th Cir.1983), actual fraud for purposes of § 523(a)(2)(A) could not be established based on implied representations of intent and ability to pay arising from a debtor’s use of a credit card in the absence of use after the creditor revoked it. This Court has come to the same conclusion. Alam, supra. As explained in Alam, however, these cases do not require a conclusion that actual fraud cannot be established by proof of an actual, subjective intent not to pay a credit card debt when it is incurred. The holdings and analyses of Roddenberry and Kim involve determination of non-dischargeability based" }, { "docid": "1488704", "title": "", "text": "453-54 (Okla.1952). Accord, Mellon Bank, N.A v. Vitanovich (In re Vitanovich), 259 B.R. 873, 877 (6th Cir. BAP 2001) (“When a debtor intentionally engages in a scheme to deprive or cheat another of property or a legal right,” the debtor has committed actual fraud.) Under these principles, a debtor commits actual fraud for purposes of § 523(a)(2)(A) if the debtor uses a credit card without the actual, subjective intent to pay the debt thereby incurred. E.g., Citibank (South Dakota), N.A. v. Brobsten (In re Brobsten), 2001 WL 34076352 (Bankr.C.D.Ill. Nov. 20, 2001); cf. Chase Manhattan Bank (U.S.A.), N.A. v. Carpenter (In re Carpenter), 53 B.R. 724, 730 (Bankr.N.D.Ga.1985) (holding that representation is necessary element of actual fraud and that use of credit card is representation of intent to pay, but finding creditor had not proved subjective intent not to pay). Roddenberry and Kim do not require a different conclusion. Their holdings and analyses involve determination of nondis-chargeability based on implied representations and do not address the issue of actual fraud based on a showing of actual subjective intent not to pay at the time charges are incurred. Thus, if a creditor establishes that a debtor had such an intent (based on evidence other than implied representations), the debt is nondisehargeable because of the debtor’s actual fraud. Although a number of objective facts and circumstances may be relevant to determination of this intent, the ultimate factual issue is the debtor’s subjective intent not to pay. This factual issue cannot be determined by a formulaic use of objective criterion and, critically, is quite distinct from the question of ability to pay. E.g., Brobsten, supra, at *4-5; Alvi, supra, 191 B.R. at 733. See generally, Margaret Howard, Shifting Risk and Fixing Blame: The Vexing Problem of Credit Card Obligations in Bankruptcy, 75 Am. Bankr. L.J. 63, 97-100 (2001). The Court therefore considers whether entry of default judgment is appropriate based solely on the allegation in this complaint that Debtor did not intend to pay when he incurred the debts. As a matter of notice pleading under Fed.R.Civ.P. 8 (applicable under Fed. R. BankR." }, { "docid": "10755849", "title": "", "text": "is used when a creditor alleges actual fraud. In order to except a debt from discharge on the basis of actual fraud, a creditor must establish that (1) a fraud occurred, (2) the debtor intended to defraud, and (3) the fraud created the debt that is the subject of the discharge dispute. Jahelka, 442 B.R. at 669; see also Ryan, 408 B.R. at 157; Scarpello, 272 B.R. at 701; Jairath, 259 B.R. 308, 314. The fraud exception to the dischargeability of debts in bankruptcy does not reach constructive frauds, only actual ones. McClellan v. Cantrell, 217 F.3d 890, 894 (7th Cir.2000); see also Ryan, 408 B.R. at 157. Unlike false pretenses and false representations, “actual fraud” does not require proof of a misrepresentation or reliance. McClellan, 217 F.3d at 892; see also Jahelka, 442 B.R. at 669; Hanson, 432 B.R. at 771. While there is no definite rule defining fraud, “it includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated.” McClellan, 217 F.3d at 893 (internal quotations omitted). C.Intent Scienter, or intent to deceive, is also a required element under section 523(a)(2)(A) whether the claim is for a false representation, false pretenses, or actual fraud. Mayer v. Spanel Int'l Ltd. (In re Mayer), 51 F.3d 670, 673 (7th Cir.1995), cert. denied, 516 U.S. 1008, 116 S.Ct. 563, 133 L.Ed.2d 488 (1995); Pearson v. Howard (In re Howard), 339 B.R. 913, 919 (Bankr.N.D.Ill.2006) (Schwartz, J.). Intent to deceive is measured by the debtor’s subjective intention at the time of the representations or other purportedly fraudulent conduct. See Scarpello, 272 B.R. at 700; see also CFC Wireforms v. Monroe (In re Monroe), 304 B.R. 349, 356 (Bankr. N.D.Ill.2004) (Schmetterer, J.). Subsequent acts of fraud or omissions do not demonstrate that the debtor had the requisite intent at the time the representations were made. Standard Bank & Trust Co. v. Iaquinta (In re Iaquinta), 95 B.R. 576, 578 (Bankr.N.D.Ill.1989) (Squires, J.). An intent to deceive may be established through direct evidence or inference. Monroe, 304 B.R. at 356 (citing In re Sheridan, 57 F.3d 627 (7th Cir.1995))." }, { "docid": "3766350", "title": "", "text": "of the mind, used to circumvent and cheat another[.]” Id. (internal quotation omitted). Hence, a different analysis must be utilized when a creditor alleges actual fraud. Id. The McClellan court opined that because common law fraud does not always take the form of a misrepresentation, a creditor need not allege misrepresentation and reliance thereon to state a cause of action for actual fraud under § 523(a)(2)(A). Id. Rather, the creditor must establish the following: (1) a fraud occurred; (2) the debtor intended to defraud the creditor; and (3) the fraud created the debt that is the subject of the discharge dispute. Id. at 894. The fraud exception under § 523(a)(2)(A) does not reach constructive frauds, only actual ones. Id. The existence of fraud may be inferred if the totality of circumstances presents a picture of deceptive conduct by the debtor that indicates he intended to deceive or cheat the creditor. Cripe v. Mathis (In re Mathis), 360 B.R. 662, 666 (Bankr.C.D.Ill.2006); Sielschott, 332 B.R. at 572. c. Intent Any cause of action under § 523(a)(2)(A) — false pretenses, false representation, or actual fraud- — requires proof that the debtor acted with intent to deceive. Pearson v. Howard (In re Howard), 339 B.R. 913, 919 (Bankr.N.D.Ill.2006). Proof of intent to deceive is measured by the debtor’s subjective intention at the time of the transaction in which the debtor obtained the money, property, or services. Mega Marts, Inc. v. Trevisan (In re Trevisan), 300 B.R. 708, 717 (Bankr.E.D.Wis.2003); see also CFC Wireforms, Inc. v. Monroe (In re Monroe), 304 B.R. 349, 356 (Bankr.N.D.Ill.2004). Therefore, subsequent acts of fraud or omission do not demonstrate that the debtor had the requisite intent at the time the representations were made. Trevisan, 300 B.R. at 717. “Where a person knowingly or recklessly makes false representations which the person knows or should know will induce another to act, the finder of fact may logically infer an intent to deceive.” Jairath, 259 B.R. at 315. Because direct proof of fraudulent intent is often unavailable, fraudulent intent may be inferred from the surrounding circumstances. Hickory Point Bank & Trust," }, { "docid": "21211693", "title": "", "text": "or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud(.) 11 U.S.C. § 523(a)(2)(A). Courts have historically required a creditor to establish the following elements by a preponderance of the evidence: (1) the debtor made a representation to the creditor; (2) the debtor’s representation was false; (3) the debtor possessed scienter, i.e. an intent to deceive; (4) the creditor relied on the debtor’s misrepresentation, resulting in a loss to the creditor, and (5) the creditor’s reliance was justifiable. Field v. Mans, 516 U.S. 59, 74-75, 116 S.Ct. 437, 446, 133 L.Ed.2d 351 (1995); Mayer v. Spanel Intern. Ltd., 51 F.3d 670, 673 (7th Cir.1995). The Seventh Circuit applies an expanded reading of “actual fraud” to include any deceit, artifice, trick, or design involving direct or active operation of the mind, used to circumvent and cheat another. McClellan v. Cantrell, 217 F.3d 890, 893 (7th Cir.2000). In order to prove a claim based on actual fraud, the creditor must prove that: (1) a fraud occurred; (2) the debtor was guilty of intent to defraud, and (3) the fraud created the debt that is the subject of the discharge dispute. Id. at 894. The existence of fraud for non-dischargeability purposes may be inferred if the totality of circumstances presents a picture of deceptive conduct by the debtor which indicates that he or she intended to deceive or cheat the creditor. In re Schmidt, 70 B.R. 634, 641 (Bankr.N.D.Ind. 1986); In re Fenninger, 49 B.R. 307, 310 (Bankr.E.D.Pa.1985). A breach of a contract or a failure ‘to perform some promised act, by itself, will not render a debt nondischargeable under § 523(a)(2)(A), although entering into a contract or promising an act with no intention of performance may support a finding of nondischargeability. In re Faulk, 69 B.R. 743, 750 (Bankr.N.D.Ind.1986). The Plaintiffs’ Amended Complaint alleges the following fraudulent acts: 1. Debtor submitted invoices to Plaintiffs for amounts over and above the amounts" }, { "docid": "6705617", "title": "", "text": "(10th Cir.1995) (quoting Universal Money Ctrs., Inc. v. AT & T Co., 22 F.3d 1527, 1529 (10th Cir.1994) (internal citations omitted)). . Marks v. Hentges (In re Hentges), 373 B.R. 709, 715 (Bankr.N.D.Okla.2007). . Vaughan, 2006 WL 751388, at *2 (quoting Applied Genetics Int'l. Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). . Hentges, 373 B.R. at 715 (citing Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1382 (10th Cir.1980)). . 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8002; 10th Cir. BAP L.R. 8001-3. . Long v. St. Paul Fire and Marine Ins. Co., 589 F.3d 1075, 1078 n. 2 (10th Cir.2009) (\"[0]nce the district court enters a final order, its earlier interlocutory orders merge into the final judgment and are reviewable on appeal.”); Holaday v. Seay (In re Seay), 215 B.R. 780, 785 (10th Cir. BAP 1997) (bankruptcy court's summary judgment order on nondis-chargeability claim under fraud exception, combined with judgment for debtor from trial of claims seeking denial of discharge, disposed of entire complaint, and orders thus were final and appealable). . See Husky Int'l Elecs., Inc. v. Ritz, — U.S. -, 136 S.Ct. 1581, 1586, 194 L.Ed.2d 655 (2016) (holding that actual fraud is a separate ground under § 523(a)(2)(A) for excepting a debt from discharge). The Supreme Court decided Husky after the bankruptcy court issued the Order at issue in this appeal. We rely heavily on Husky in deciding to reverse. . Although the validity of the debt typically is governed by state law, there are circumstances where it may be governed by federal law, and even the Code itself. For example, the debt may be established under bankruptcy law where a money judgment was entered against an individual in a fraudulent transfer adversary proceeding under § 548 in a prior bankruptcy case of a different debtor, and that individual later files his or her own bankruptcy case to discharge that debt. Diamond v. Vickery (In re Vickery), 488 B.R. 680, 684 (10th Cir. BAP 2013), . Resolution Tr. Corp. v. McKendry (In re McKendry), 40 F.3d 331," }, { "docid": "1132571", "title": "", "text": "Moran (In re Moran), 120 B.R. 379, 387 (Bankr.W.D.Va.1990); see also McMillan v. Firestone (In re Firestone), 26 B.R. 706, 714 (1982) (citing Lobato v. Payless Drug Stores, Inc., 261 F.2d 406, 408-09 (10th Cir.1958)). Therefore, I find it unnecessary to consider issues concerning the piercing of the corporate veil of Galaxy-Wide. Section 523(a)(2)(A) of the Bankruptcy Codes excepts from discharge “any 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 ...” 11 U.S.C. § 523(a)(2)(A). It is well settled that the plaintiff challenging dischargeability under § 523(a)(2)(A) bears the burden of proof by a preponderance of the evidence to establish the following common law elements of fraud: (1) that the debtor made misrepresentation or committed other fraud; (2) that at the time the debtor knew the conduct was fraudulent; (3) that the debtor’s conduct was with the intention and purpose of deceiving or defrauding the creditor; (4) that the creditor relied on the debt- or’s representations or other fraud; and (5) that the creditor sustained loss and damage as the proximate result of the representations or fraud. In many cases the most difficult element of fraud to establish is that the debtor intended to defraud the creditor at the time of obtaining money or credit. Since the court seldom has direct evidence of a fraudulent intent, the question of intent must usually be resolved by an examination of surrounding circumstances. In re Fravel, 143 B.R. 1001, 1007 (Bankr. E.D.Va.1992); Central Fidelity Bank and Virginia First Savings Bank, F.S.B. v. Higginbotham (In re Higginbotham), 117 B.R. 211, 214 (Bankr.E.D.Va.1990); Seery v. Basham (In re Basham), 106 B.R. 453, 457 (Bankr.E.D.Va.1989). When a creditor introduces circumstantial evidence which gives rise to an inference the debtor intended to defraud, the debtor cannot overcome that inference with an unsupported assertion of honest intent. In re Fravel, 143 B.R. at 1010 (citations omitted). Additionally, where a person knowingly or recklessly makes false representations which the person knows or should know will induce another to rely on it," }, { "docid": "20919209", "title": "", "text": "has met its burden of proving non-dischargeability. Plaintiff argues that Debtor committed actual fraud when the Debtor told the Plaintiff that he had not received money from Gassman and instead, paid the money to third parties. The fraud necessary to sustain a non-dischargeability action is positive fraud or fraud in fact, involving moral turpitude or intentional wrong. In re Shipe, 41 B.R. 584, 586 (Bankr.D.Md.1984) (citing Matter of Reinstein, 32 B.R. 885, 888 (B.C.E.D.N.Y.1983) citing Neal v. Clark, 95 U.S. (5 Otto) 704, 709, 24 L.Ed. 586 (1887)). Actual fraud has been defined as “any deceit, artifice, trick or design involving direct and active operation of the mind, used to circumvent and cheat another — something said, done or omitted with the design of perpetrating what is known to be a cheat or deception.” In re Marino, 139 B.R. 380, 383 (Bankr.D.Md.1992) (citing Collier on Bankruptcy § 523-09, 532-59-523-61 (15th ed. 1991)). The Debtor misrepresented to Plaintiff that Gassman Corporation had not yet paid Woodall for the services, and that, therefore, Woodall Corporation could not pay the Plaintiff. In fact, Gassman had paid Woodall Corporation. Even if the uncontroverted facts support a finding that the Debtor knowingly made false representations, the Plaintiff has failed to prov.e that the Debtor obtained money, property or services on account of such false representations. Plaintiff argues that the Debtor obtained money properly belonging to the Plaintiff, in continued reliance upon the Construction Trust Statute. The mere fact that statutory liability arises is not sufficient to invoke § 523(a)(2). Money or services must actually come to the debtor because of the false representation. In re Burgess, 955 F.2d 134, 140 (1st Cir.1992); In re De Maio, 159 B.R. 383, 385 (Bankr.D.Conn.1993); In re Shields, 147 B.R. 627, 629 (Bankr.D.Mass.1992); In re Chavez, 140 B.R. 413, 420 (Bankr.W.D.Tex.1992) (citing In re Rippey, 21 B.R. 954, 958 (Bankr. N.D.Tex.1982); In re Fritz, 88 B.R. 434, 435 (Bankr.S.D.Fla.1988)). To invoke § 523(a)(2), the fraud must have existed at the time of, and been the methodology by which, the money, property or services were obtained. “The fraudulent intent must" }, { "docid": "3425475", "title": "", "text": "Rembert, 141 F.3d at 280-81. For purposes of § 523(a)(2)(A), “false representations and false pretenses encompass statements that falsely purport to depict current or past facts.” Peoples Sec. Fin. Co., Inc. v. Todd (In re Todd), 34 B.R. 633, 635 (Bankr.W.D.Ky.1983). “ ‘False pretense’ involves implied misrepresentation or conduct intended to create and foster a false impression, as distinguished from a ‘false representation’ which is an express misrepresentation.” Ozburn v. Moore (In re Moore), 277 B.R. 141, 148 (Bankr.M.D.Ga.2002)(quoting Sears Roebuck & Co. v. Faulk (In re Faulk), 69 B.R. 743, 750 (Bankr.N.D.Ind.1986)). In addition, § 523(a)(2)(A) also addresses “actual fraud” as a concept broader than misrepresentation. See McClellan v. Cantrell, 217 F.3d 890 (7th Cir.2000); Mellon Bank, N.A. v. Vitanovich (In re Vitanovich), 259 B.R. 873 (6th Cir. BAP 2001). “Actual fraud has been defined as intentional fraud, consisting in deception intentionally practiced to induce another to part with property or to surrender some legal right, and which accomplishes the end designed. It requires intent to deceive or defraud.” Vitanovich, 259 B.R. at 877 (quoting Gerad v. Cole (In re Cole), 164 B.R. 951, 953 (Bankr. N.D.Ohio 1993)). A debtor’s intent to defraud a creditor under § 523(a)(2)(A) is measured by a subjective standard and must be ascertained by the totality of the circumstances of the case at hand. Id.; Rembert, 141 F.3d at 281-82. A finding of fraudulent intent may be made on the basis of circumstantial evidence or from the debtor’s “course of conduct,” as direct proof of intent will rarely be available. Hamo v. Wilson (In re Hamo), 233 B.R. 718, 724 (6th Cir. BAP 1999). However, “[i]f there is room for an inference of honest intent, the question of nondischargeability must be resolved in favor of the debtor.” Buckeye Retirement Co., LLC v. Kakde (In re Kakde) 382 B.R. 411, 427 (Bankr.S.D.Ohio 2008). In this case, Plaintiff alleges that Defendant owes him a debt for money obtained through a material misrepresentation, false pretense and/or actual fraud. Plaintiff first argues that Defendant misrepresented that the money withheld from his wages would be used to pay, in" }, { "docid": "3766345", "title": "", "text": "liberally in favor of a debtor. In re Morris, 223 F.3d 548, 552 (7th Cir. 2000); Kolodziej v. Reines (In re Reines), 142 F.3d 970, 972-73 (7th Cir.1998); In re Zarzynski, 771 F.2d 304, 306 (7th Cir. 1985). “The statute is narrowly construed so as not to undermine the Code’s purpose of giving the honest but unfortunate debt- or a fresh start.” Park Nat’l Bank & Trust of Chi. v. Paul (In re Paul), 266 B.R. 686, 693 (Bankr.N.D.Ill.2001). 1. 11 U.S.C. § 523(a)(2)(A) Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. Section 523(a)(2)(A) provides as follows: (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 or an insider’s financial condition[.] 11 U.S.C. § 523(a)(2)(A). Section 528(a)(2)(A) lists three separate grounds for dischargeability: actual fraud, false pretenses, and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr. N.D.Ill.2001). A single test is applied to all three grounds even though the elements for each exception vary under common law. Jairath, 259 B.R. at 314. a. False Pretenses or False Representation In order to except a debt from discharge due to false pretenses or a false representation under § 523(a)(2)(A), a creditor must establish the following elements: (1) the debtor made a false representation of fact (2) which the debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the creditor justifiably relied on the false representation. Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 643 (Bankr. N.D.Ill.2004); Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 710 (Bankr.N.D.Ill.2004). To prevail on a § 523(a)(2)(A) complaint, all three elements must be established. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). Failure to establish any one" }, { "docid": "3425474", "title": "", "text": "the company. Id. Therefore, to the extent that Defendant engaged in tortious conduct as President of the Company, or caused the Company to commit a corporate tort, she may be held personally liable for the resulting injury. A. 11 U.S.C. § 523(a)(2)(A) Section 523(a)(2)(A) excepts from discharge a debt “for money, property, [or] services, ... 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....” In order to except a debt from discharge under this section due to false pretense or false representation, a plaintiff must prove the following elements by a preponderance of the evidence: (1) the debtor obtained money, property, services or credit through a material misrepresentation, either express or implied, that, at the time, the debtor knew was false or made with gross recklessness as to its truth; (2) the debtor intended to deceive the creditor; (3) the creditor justifiably relied on the false representation; and (4) the creditor’s reliance was the proximate cause of loss. Rembert, 141 F.3d at 280-81. For purposes of § 523(a)(2)(A), “false representations and false pretenses encompass statements that falsely purport to depict current or past facts.” Peoples Sec. Fin. Co., Inc. v. Todd (In re Todd), 34 B.R. 633, 635 (Bankr.W.D.Ky.1983). “ ‘False pretense’ involves implied misrepresentation or conduct intended to create and foster a false impression, as distinguished from a ‘false representation’ which is an express misrepresentation.” Ozburn v. Moore (In re Moore), 277 B.R. 141, 148 (Bankr.M.D.Ga.2002)(quoting Sears Roebuck & Co. v. Faulk (In re Faulk), 69 B.R. 743, 750 (Bankr.N.D.Ind.1986)). In addition, § 523(a)(2)(A) also addresses “actual fraud” as a concept broader than misrepresentation. See McClellan v. Cantrell, 217 F.3d 890 (7th Cir.2000); Mellon Bank, N.A. v. Vitanovich (In re Vitanovich), 259 B.R. 873 (6th Cir. BAP 2001). “Actual fraud has been defined as intentional fraud, consisting in deception intentionally practiced to induce another to part with property or to surrender some legal right, and which accomplishes the end designed. It requires intent to deceive or defraud.” Vitanovich, 259 B.R. at 877" }, { "docid": "6705627", "title": "", "text": "Husky 136 S.Ct. at 1589 (a debtor with the requisite intent who commits actual fraud can obtain assets by his or her participation in the fraud rendering the debt nondischargeable under § 523(a)(2)(A)); In re Vickery, 488 B.R. at 691 (\"[T]he Trustee may prevail under § 523(a)(2)(A) if he shows that the debt [owed] is for money obtained by actual fraud”). The Tenth Circuit has not directly addressed the requirement that money, properly, services, or other credit be obtained by the fraud. The Tenth Circuit's decision in Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1373 (10th Cir.1996), which addressed exceptions to discharge under § 523(a)(2)(A) based on false representations, predates Cohen and Husky. . Id. at 222-23. . Id. (the debtor’s liability may exceed the value obtained by the debtor). In Cohen, the Supreme Court used the following example to illustrate § 523(a)(2)(A)’s function of allowing full recovery of all losses arising from fraud; [I]f ... the fraud exception only barred discharge of the value of any money, property, etc., fraudulently obtained by the debt- or, the objective of ensuring full recovery by the creditor would be ill served. Limiting the exception to the value of the money or property fraudulently obtained by the debt- or could prevent even a compensatory recovery for losses occasioned by fraud. For instance, if a debtor fraudulently represents that he will use a certain grade of shingles to roof a house and is paid accordingly, the cost of repairing any resulting water damage to the house could far exceed the payment to the debtor to install the shingles. Id. at 222, 118 S.Ct. 1212. . There is a circuit split regarding whether a debtor must personally receive money, property, services, or other credit. See HSSM # 7 Ltd. P’ship v. Bilzerian (In re Bilzerian), 100 F.3d 886, 890 (11th Cir.1996) (discussing whether a debtor must personally receive money before the exception to discharge of § 523(a)(2)(A) can apply). The first approach requires the debtor personally receive money, property, services, or credit \"through her fraud or use of false pretenses.” Nunnery v." }, { "docid": "20242441", "title": "", "text": "discharge are to be construed strictly against a creditor and liberally in favor of a debtor. In re Morris, 223 F.3d 548, 552 (7th Cir. 2000); Kolodziej v. Reines (In re Reines), 142 F.3d 970, 972-73 (7th Cir.1998); In re Zarzynski, 771 F.2d 304, 306 (7th Cir. 1985). “[Section 523(a)] is narrowly construed so as not to undermine the Code’s purpose of giving the honest but unfortunate debtor a fresh start.” Park Nat’l Bank & Trust of Chi. v. Paul (In re Paul), 266 B.R. 686, 693 (Bankr.N.D.Ill.2001). B. 11 U.S.C. § 523(a)(2)(A) Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. Section 523(a)(2)(A) provides as follows: (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 or an insider’s financial condition[.] 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2)(A) lists three separate grounds for dischargeability: actual fraud, false pretenses, and a false representation. Id.; Bletnitsky v. Jairath (In re Jairath), 259 B.R. 308, 314 (Bankr.N.D.Ill.2001). 1. False Pretenses or False Representation In order to except a debt from discharge under the false pretenses or false representation prongs of § 523(a)(2)(A), the creditor must establish the following elements: (1) the debtor made a false representation of fact; (2) which the debtor (a) either knew to be false or made with reckless disregard for its truth and (b) made with an intent to deceive; and (3) the creditor justifiably relied on the false representation. Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); Baker Dev. Corp. v. Mulder (In re Mulder), 307 B.R. 637, 643 (Bankr. N.D.Ill.2004); Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 710 (Bankr. N.D.Ill.2004). To prevail on a § 523(a)(2)(A) complaint, all three elements must be established. Glucona Am., Inc. v. Ardisson (In re Ardisson), 272 B.R. 346, 357 (Bankr.N.D.Ill.2001). Failure to establish any one fact is outcome determinative. Jairath, 259 B.R." }, { "docid": "12259209", "title": "", "text": "that when Congress used the term “actual fraud” in § 523(a)(2)(A), Congress was referring to the general common law of torts. Id. at-n. 9, 116 S.Ct. at 443 n. 9. Thus, the Supreme Courtis interpretation of the term “actual fraud” reaffirms the Ninth Circuit’s practice of using the common law elements of fraud in exception to discharge cases. C. Applying 11 U.S.C. § 523(a)(2)(A) to Credit Card Cases .. Many courts have acknowledged that credit card debts are different from other types of debts which are discharged for fraud. See, e.g., First Nat’l Bank v. Roddenberry, 701 F.2d 927, 931 (11th Cir.1983); Citibank, S.D., N.A. v. Dougherty (In re Dougherty), 84 B.R. 653, 655-56 (9th Cir. BAP 1988); Nordstrom, Inc. v. Borste (In re Borste), 117 B.R. 995, 996 (Bankr.W.D.Wash.1990). Traditional credit transactions are two-party transactions between the debtor and the creditor. In contrast, credit card transactions involve' three-parties: 1) the debt- or/card holder; 2) the creditor/eard issuer; and 3) the merchant who honors the credit card. The difficulty in credit card cases is for the creditor, who does not deal face-to-face with the debtor, to prove the elements of misrepresentation and reliance. . In applying the common law elements of fraud to credit card cases, courts generally follow one of three legal theories. Hecht’s, A Division of the May Dep’t Stores Co. v. Valdes (In re Valdes), 188 B.R. 533, 535-37 (Bankr.D.Md.1995). The majority approach is the- “implied representation” theory. Chase Manhattan Bank, N.A v. Ford (Matter of Ford), 186 B.R. 312, 318 (Bankr. N.D.Ga.1995). According to this theory, a credit card holder impliedly represents, upon using the credit card, that he has the ability and intention to pay for the goods or services.' Sears Roebuck & Co. v. Faulk (In re Faulk), 69 B.R. 743, 752 (Bankr.N.D.Ind. 1986). The minority approach is the “assumption of the risk” theory. First Nat’l Bank v. Roddenberry, 701 F.2d 927, 932-33 (11th Cir.1983). According to this approach, a card holder makes a false representation to the issuer only when revocation of the card is communicated to the card holder and the card" }, { "docid": "6705623", "title": "", "text": "does.not address such argument as the [Summary Judgment] Motion seemingly assumes that the debt is a debt of Thompson,”). . Husky, 136 S.Ct. at 1587, 1591. . Id. at 1587 (“[in fraudulent conveyance cases], the fraudulent conduct is not in dishonestly inducing a creditor to extend a debt. It is in the acts of concealment and hindrance.”). . Id. at 1586. . Id. (quoting Neal v. Clark, 95 U.S. 704, 709, 24 L.Ed. 586 (1877)); see also In re Vickery, 488 B.R. at 690 (defining \"actual\" fraud as \"involving fraudulent intent,\"). . Id. at 1586. . Id. . Husky, 136 S.Ct. at 1586. . Id. at 1587. . See Id. at 1585-86. . Vickery, 488 B.R. at 690 (quoting Mellon Bank, N.A. v. Vitanovich (In re Vitanovich), 259 B.R. 873, 877 (6th Cir. BAP 2001)). . We need not decide what portion of this conduct would be sufficient to establish actual fraud. . Order at 3-5, in Appellant’s App. at 152-54. Unless otherwise stated, all subsequent facts are drawn from the Order. . Order at 9, in Appellant's App. at 158. . 11 U.S.C. § 523(a)(2)(A) (emphasis added). . Cohen v. de la Cruz, 523 U.S. 213, 216, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). In Husky, the Supreme Court, addressing § 523(a)(2)(A)’s “obtained by” requirement and without citing to Cohen, stated: [T]he recipient of a [fraudulent] transfer— who, with the requisite intent, also commits fraud — can obtain assets by his or her participation in the fraud. If that recipient later files for bankruptcy, any debts traceable to the fraudulent conveyance ... will be non-dischargeable under § 523(a)(2)(A).... [Thus,] at least sometimes a debt 'obtained by' a fraudulent conveyance scheme could be nondischargeable under § 523(a)(2)(A). Husky, 136 S.Ct. at 1589 (internal citations and quotation marks omitted). While these statements could be read to impliedly undermine Cohen’s interpretation of § 523(a)(2)(A)’s \"obtained by” requirement, we are bound to apply the Cohen holding because it; directly and explicitly addresses whether \"obtained by” in § 523(a)(2) modifies \"debts” or \"money, property, services” etc. See United States v. Hatch, 722 F.3d 1193," }, { "docid": "6705606", "title": "", "text": "arising under state law is nondischargeable under § 523(a)(2)(A). B. There are facts in genuine dispute that preclude summary judgment in favor of Thompson on Hatfield’s § 528(a)(2)(A) claim. Once the creditor has established the claim on the debt under applicable law, the court must determine whether the debt is dischargeable. To establish that a debt is excepted from discharge under § 523(a)(2)(A) based on actual fraud, the creditor must show: (a) the debtor committed actual fraud; (b) the debtor obtained money, property, services, or credit by the actual fraud; and (c) the debt arises from the actual fraud. We will discuss each of these elements in turn. But before doing so, will address some of the things these elements do not require. In determining the nondischarge-ability of the debt under § 523(a)(2)(A) based on actual fraud, there is no requirement that a creditor rely on the actual fraud or part with assets or receive credit at the inception of, or concurrently with, the actual fraud. Nor is there a requirement that the debtor’s actual fraud induced the creditor to part with property or extend credit. The First Elements — Actual Fraud The first element of a nondis-chargeability claim under § 523(a)(2)(A) predicated on actual fraud is to show “ac tual fraud.” Showing “actual fraud” has two parts: “actual” and “fraud.” For fraud to be “actual” fraud there must be wrongful intent. Constructive or implied fraud is not actual fraud. “Fraud,” as used in § 523(a)(2)(A), connotes deception or trickery. In Husky, the Supreme Court specifically decided not to adopt a definition of the “fraud” component of “actual fraud” for all times and all circumstances but did give some guidance. Actual fraud does not require that the debtor make any misrepresentations. Further, the debtor must have taken some action in furtherance of the debtor’s wrongful intent. In Husky, the Supreme Court held that the debtor, by causing a corporation he controlled to transfer assets to other entities he controlled for the purpose of impeding collection of a judgment against the trans-feror corporation, committed actual fraud. In Vickery, this Court held" }, { "docid": "17972973", "title": "", "text": "of Salett who had made loans to the company. In April 1981 Salett was seeking refinancing for the company. Salett transfered his interest as a tenant by the entirety in his residence located in Waban, Massachusetts to his wife in June of 1981. At this time the house had a fair market value of $117,000 and mortgages on the house totalled $135,000. Bay ceased operations on June 1, 1981, and filed a chapter 7 bankruptcy petition thereafter. In Count one of its Complaint, the plaintiff seeks to except the debt from discharge under 11 U.S.C. § 523(a)(2)(A) which provides as follows: “(a) A discharge . does not discharge an individual debtor from any debt — ... (2) for obtaining money, property, services, or an extension, renewal or refinance of credit by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition, ...” 11 U.S.C. § 523(a)(2)(A) (Supp.1984). To prevent discharge under this section, the creditor’ must prove that the debtor made knowing false representations with intent to deceive the creditor, and that the creditor relied to his detriment as a result of the representation. In re Simpson, 29 B.R. 202, 209 (Bankr.W.D.Iowa 1983). The plaintiff bears the burden of proving each element by clear and convincing evidence. In re Vissers, 21 B.R. 638, 639 (Bankr.E.D.Wis.1982). Proof of actual fraud requires a showing of intentional wrong. A failure to fulfill a mere promise to pay a debt cannot support a finding of fraud. In re Simpson, 29 B.R. 202, 209 (Bankr.W.D.Iowa 1983); In re Collins, 28 B.R. 244 (Bankr.W.D.Okla.1983). By itself, a failure to pay for goods ordered on credit is not fraudulent. In re Lieberman, 14 B.R. 881 (Bankr.E.D.Va.1981). A debtor’s history of payments to a supplier and his financial condition are relevant in determining whether he intended to pay for merchandise at the time it was ordered. In re Walker, 29 B.R. 355, 358 (Bankr.N.D.Miss.1983). Where a debtor continues to pay for his purchases up until the final purchase, it is difficult for the creditor to establish fraud." }, { "docid": "4706919", "title": "", "text": "2 B.R. 19 (Bkrtcy.1979); In Re Gennaro, 12 B.R. 4 (Bkrtcy.1981). In a § 523(a)(2)(A) action, the creditor has a heavy burden in objecting to the discharge on the ground that the money or credit was obtained by false pretenses, a false representation or actual fraud. In Re Singh, 16 B.R. 449 (Bkrtcy.1982). A creditor seeking to except a debt from discharge must prove by clear and convincing evidence the facts essential to the objection. In Re Colasante, 12 B.R. 635 (D.C.1981); In Re Heil, 14 B.R. 581 (Bkrtcy.1981). Further, exceptions to discharge are to be narrowly construed. In Re LoBosco, 14 B.R. 739 (Bkrtcy.1981). This construction of the exceptions to discharge was used under the Bankruptcy Act and is presently used under the Bankruptcy Code. In Re Iannelli, 12 B.R. 561 (Bkrtcy. 1981); In Re Aldrich, 16 B.R. 825 (Bkrtcy. 1982). Section 523(a)(2)(A) reads, in part, as follows: “(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— * * * * * * (2) for obtaining money, property, services, or an extension, renewal, or refinance of credit, 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 plaintiffs allege the defendants’ actions fall within this section since the defendants made certain representations in connection with this business venture which proved to be false and misleading. The plaintiffs also contend that certain omissions of the defendants misled the plaintiffs in that said omissions concealed material facts. There is no doubt that not all frauds are included within the exception of 523(a)(2)(A), but only those which are involved in the obtaining of money, property, or services by false pretenses or false representations. The frauds involved in the portion of 523(a)(2)(A) are those which in fact involve moral turpitude or intentional wrong; fraud implied in law which may exist without imputation of bad faith or immorality is insufficient. It must further affirmatively appear that such representations were knowingly and fraudulently made. 3" } ]

[ { "docid": "18696500", "title": "", "text": "Not to Revoke Order”), 58 Fed. Reg. 51,057 (1993). Plaintiffs did not appeal Commerce’s determination. In 1994, on May 3rd, Commerce published a notice communicating an intent to revoke the Order if interested parties did not request an administrative review or object to the proposed revocation by May 31, 1994. Intent to Revoke Antidumping Duty Orders and Findings, 59 Fed. Reg. 22,821 (1994). The following day, on May 4th, Grinnell, Ward and Stockham requested an administrative review pursuant to 19 U.S.C. § 1675(a) (1988). Defendants’ Brief at 5. On July 15, 1994, indicating that it had inadvertently omitted listing the Order in its previous initiation notice, Commerce listed the Order among various antidumping duty orders and findings with June anniversary dates for which timely requests for administrative reviews had been made. By such notice, Commerce announced initiation of an administrative review of the Order for the period May 1,1993 through April 30, 1994. Initiation of Antidumping Duty Administrative Reviews and Requests for Revocation in Part, 59 Fed. Reg. 36,160 (1994). On July 22, 1994, for the purpose of conducting an administrative review of the Order, Commerce issued a questionnaire to Industria de Fundicao Tupy. The response date was September 20, 1994, day 60 of the annual review. By letter dated August 8,1994, Industria de Fundicao Tupy requested that Commerce immediately revoke the finding of dumping against malleable cast iron pipe fittings from Brazil. It based its request on the Court’s decision in Kemira Fibres Oy v. United States (“Kemira I”), 18 CIT 687, Slip Op. 94-120 (July 26, 1994). Defendant-intervenors Grinnell, Ward and Stockham, domestic manufacturers of malleable iron pipe fittings, oppose plaintiffs’ motion for injunctive relief. These interested parties were members of the industry group that petitioned for the investigation which resulted in issuance of the Order. Defendant-intervenors’ Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction (“Defendant-intervenors’ Brief”) at 2. Discussion In order for a preliminary injunction to issue, plaintiffs must demonstrate: (1) that it has a likelihood of success on the merits; (2) that there is a threat of immediate and irreparable harm to" } ]

[ { "docid": "16602597", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiff, Neuweg Fertigung GmbH (“Neuweg”), moves pursuant to Rule 56.1 of the Rules of this Court for judgment on the agency record challenging the results of the first administrative review of antifriction bearings from the Federal Republic of Germany as it relates to Neuweg. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review {“Final Results”), 56 Fed. Reg. 31,692 (1991). Plaintiff requests this Court to remand this action to the Department of Commerce, International Trade Administration (“ITA”), for recalculation of Neuweg’s dumping margin by accounting for plaintiffs customer-specific product codes in matching home market and U.S. sales or, in the alternative, to require the ITA to use less punitive “best information available” (“BIA”) as the margin for plaintiffs unmatched sales. In addition, defendant moves pursuant to Rule 12(f) of the Rules of this Court to strike exhibit A of Plaintiff’s Reply to Defendant and Defendant-Intervenors ’ Memoranda in Opposition to Plaintiff’s Motion for Judgment upon the Agency Record (“Plaintiff ’s Reply”) and the references to exhibit A on Pages 5 and 8 of Plaintiff’s Reply. Background Plaintiff requested that the ITA conduct an administrative review of plaintiffs sales of bearings. Administrative Record Germany Public (“AR Germany Pub.”) Doc. 2. ITA sent Neuweg section A of the ant-idumping duty questionnaire which required Neuweg to “[d] escribe your product coding system as it applies to [antifriction bearings]. Provide a key to your product codes, including all prefixes, suffixes, or other notation, which identify special features.” Administrative Record General Public (“AR Gen. Pub.”) Doc. 3. Neuweg provided the requested information in Appendix A.4, Part 2, of its questionnaire response. AR Germany Pub. Doc. 105. When describing its product coding in its section B and C questionnaire responses, Neuweg referred back to Appendix A.4, Part 2, of its section A questionnaire response. AR Germany Pub. Docs. 193, 239. On March 15,1991, the ITA published the preliminary results of the administrative review. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany;" }, { "docid": "18963887", "title": "", "text": "42,862. Commerce instructed Customs to liquidate its entries at the “all others rate” of 3.10 percent. Id. Eden argues that the same reasoning applies to Groex because Groex was liquidated prior to the time that the section C and D responses were due. Eden Brief at 10. Groex, however, unlike My Flowers was fully aware of its reporting requirements. Groex attended Commerce’s seminar in Bogota, received the questionnaires, .hired an accounting firm to help it prepare questionnaire responses, and submitted to Commerce both its section A responses for the fifth and sixth review periods and a no-shipment certification for the seventh review. See Pub. Docs. No. 554, 1693, Def.’s Mem. Opp’n Eden Floral Farms’ Mem. Supp. Mot. J. Agency R., Ex. 4, Ex. 10 at 3. Finally, Eden points to Commerce’s application of the second-tier BIA rate to flower growers that were no longer in business, 61 Fed.Reg. at 42,836, arguing that this treatment is inconsistent with Commerce’s treatment of Groex. But Commerce found that the other producers were never in a position to process Commerce’s information requests. Id. Groex, however, was still in business when it received Commerce’s questionnaires. The Court finds that there is sufficient evidence on the record demonstrating Groex’s refusal to cooperate. Accordingly, Commerce’s application of first-tier BIA to Groex was in accordance with law and was supported by substantial evidence. C. Plaintiff Equiñor Commerce sent a questionnaire covering the fifth and sixth reviews to Sunset Farms (“Sunset”) on April 13, 1994 and a questionnaire covering the seventh review to Flores el Majui (“Majui”) on May 5, 1994. Pub. Doc. No. 1821, Def.’s, Mem. Opp’n Equiflor’s Mem. Supp. Mot. J. Agency R., Ex. 12., In the preliminary results, Commerce assigned first-tier BIA to both Majui and Sunset stating that they “failed to respond to our requests for information.” Preliminary Results, 60 Fed.Reg. at 30,272, On August 11, 1995, Equiflor and Espirit Miami (collectively “Equiflor”) filed a ease brief in the administrative review of the present proceeding. Pub. Doe. No. 1692, Def.’s Mem. Opp’n Equiflor’s Mem Supp. Mot.- J. Agency R., Ex. 9. Equiflor maintained that Majui" }, { "docid": "18696514", "title": "", "text": "court. Therefore, plaintiffs have no recourse against Commerce with regard to 1993. This case is distinguishable from Kemira I in that, in the case at bar, interested parties objected to Commerce’s proposed revocation on at least two occasions and Commerce responded by issuing determinations not to revoke the Order. Hence, plaintiffs had significant opportunity to make their present arguments. If Commerce’s determinations not to revoke the Order were objectionable, plaintiffs should have initiated a counter action. See, e.g., Wear Me Apparel Corp. v. United States, 1 CIT 60 (1980) (where plaintiff knew of impending irreparable harm for months, the Court denied the injunction because a plaintiff “who has not acted diligently to pursue its administrative remedies cannot * * * be permitted to benefit by its past inaction in pursuit of the present application”). However, plaintiffs failed to appeal Commerce’s actions. Plaintiffs’ failure to react maintained the status quo and the Order remained in effect. Further, in this case, unlike in Kemira I, the domestic industry’s 1994 request for an administrative review of the Order was made at a point in time when the Order was still in effect. Moreover, the request for an administrative review was made in conformity with Commerce’s requirements and Commerce properly followed the review initiation process. See 19 C.F.R. § 353.22(a); 19 U.S.C. § 1675a. By their dilatory actions, plaintiffs have shown that any hardship to them is remote and insignificant. Conclusion In sum, plaintiffs have not convinced the Court to grant the extraordinary relief requested. Plaintiffs’ motion for a preliminary injunction is therefore denied and the underlying TRO is dissolved. During the time of the original investigation, Tupy was known as Fundicao Tupy, S.A. The term, \"anniversary month,” refers to the anniversary month of the publication of an antidumping duty order, i.e., “the calendar month in which the anniversary of the date of publication of the order or finding occurs.” 19 C.F.R. § 353.22(a) (1991). The anniversary month in the instant case is May. § 353.25 Revocation of orders; termination of suspended investigation. (d) Revocation or termination based on changed circumstances * * *." }, { "docid": "4662512", "title": "", "text": "review in the anniversary month of the publication of the antidumping duty order. 19 U.S.C. § 1675(a)(1) (1982 & Supp. IV 1986). If no review is requested, a Commerce regulation provides for the unliquidated entries and warehouse withdrawals for consumption to be liquidated at the estimated antidumping duty rate. 19 C.F.R. § 353.53a(d)(l) (1988). See also Horlick & DeBusk, Commerce Procedures Under Existing and Proposed Antidumping/Countervailing Duty Regulations, 22 Int’l Law. 99, 117-18 (1988). Entries, once liquidated, are no longer subject to the effect of a subsequent judicial decision. See 19 U.S.C. § 1516a(c)(l), (e) (1982). In the May 11, 1987 Federal Register, Commerce published notice that pursuant to 19 C.F.R. §§ 353.53a and 355.10 (1987), any interested party could request an administrative review of the antidump- ing order on pipe fittings from Brazil imported into the United States in the period from January 14, 1986 to April 30, 1987. An-tidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 52 Fed. Reg. 17,621 (May 11, 1987). No party requested an administrative review of this first review period. Rather, plaintiffs asked this Court to enjoin liquidation of the entries made during the first review period. In their motion for an injunction, plaintiffs did not challenge the validity of 19 C.F.R. § 353.53a(d), which is the regulation providing for the automatic assessment of antidumping duties at the estimated duty rate. On August 3, 1987 the Court denied the motion for a preliminary injunction: The relevant statutory scheme contemplates that Commerce, in the first instance, be afforded an opportunity to review its determinations in the course of calculating actual dumping margins for a given period. Under the facts of this case, to grant the extraordinary remedy of an injunction would be to improperly reward plaintiffs’ efforts to thwart that scheme. Accordingly, this Court will not exercise its injunctive power to rescue plaintiffs from the consequence of its decision not to initiate the administrative review process. Fundicao Tupy S.A. v. United States, 11 CIT 561, 669 F. Supp. 437, 439 (1987) (Tupy I). In denying the preliminary injunction, Tupy" }, { "docid": "16627798", "title": "", "text": "upheld. 1 Background Quanex argued in its administrative case brief that Dalmine had improperly excluded certain sales of alloy pipe made for boiler tube application that was stenciled to ASTM A-335 specification. Quanex’s Case Brief of May 18, 1995 at 3-10, AR Pub. Doc. 241, Fiche 43, Fr. 1-49. Even though this pipe was used in applications which were excluded from the scope, Quanex submitted that the scope of the petition made clear that “all A-335 pipe, regardless of end use is included in the scope of this investigation____” Id. at 4. Dalmine attached to its reply brief two sets of documents which allegedly contradicted the “new” argument asserted by Quanex. Commerce required Dalmine to delete these documents and any references to them from its reply brief because they constituted “new information” under 19 C.F.R. § 353.31(a). Letter from the Director, Office of Anti-dumping Inves. to Rogers & Wells of May 30, 1995, AR Pub. Doe. 253, Fiche 49, Fr. 42. Dalmine’s new version of its reply brief was in accordance with Commerce’s instructions, and retained its rebuttal to Quanex’s position with respect to scope. See Dalmine’s Redacted Reply Brief, AR Pub. Doe. 255, Fiche 50, Fr. 1. 2 The ITA Properly Rejected Certain Documents Attached To Dalmine’s Reply Brief This Court has recognized that foreign respondents have a right to due process in antidumping proceedings. Sugiyama Chain Co., Ltd. v. United States, 18 CIT 423, 436, 852 F.Supp. 1103, 1115 (1994). This right is limited by the lack of a Constitutional right to import merchandise into the United States or to engage in foreign trade. See American Ass’n of Exporters and Importers-Textile and Apparel Group v. United States, 3 Fed. Cir. (T) 58, 71, 751 F.2d 1239, 1250 (1985) (“No one has a protectable interest to engage in international trade.”). Consequently, parties simply have a right to the procedures set forth in the antidumping statute or in the agency regulations implementing that statute. See Kemira Fibres Oy v. United States, 18 CIT 687, 694, 858 F.Supp. 229, 235 (1994) (“judicial review of administrative determinations can only be meaningful under" }, { "docid": "14910293", "title": "", "text": "from the Republic of Korea, finding margins of 1.47 percent and .90 percent. During the period of the investigations, the average margins at which these classes of merchandise undersold domestic products were 30 percent and 19 percent respectively. On June 27,1984 plaintiffs filed an action contesting the Commission’s determination that an industry in the United States is materially injured by imports of the Korean pipe and tube products. Plaintiffs argue that the affirmative injury determination of the Commission is unlawful since it failed to take into consideration the size of the dumping margins in connection with its causation analysis under 19 U.S.C. § 1677(7)(B). The case is pending before the Court and all issues have been fully briefed. Oral argument was held on July 17, 1986. In accordance with a voluntary restraint agreement entered into by the United States and the government of Korea, the antidumping duty orders were revoked by Commerce for all pipes and tubes exported to the United States on or after October 1, 1984. As a result, only pipes and tubes entered between the publication of October 1983 preliminary dumping determinations and the date of effective revocation remain subject to the antidumping duty orders. In June 1986, petitioner, The Committee on Pipe and Tubes Imports, made a request under 19 U.S.C. § 1675(a) and 19 C.F.R. § 353.53a(a)(5) that Commerce commence an administrative review under section 751. Commerce published notice of its initiation of the administrative review and on October 7,1986 issued questionnaires, requesting that plaintiffs submit within 45 days information relating to the administrative review. Plaintiffs moved for a temporary restraining order and a preliminary injunction on October 28, 1986 to delay the administrative review. The Court denied plaintiffs’ motion for injunctive relief pending a hearing on plaintiffs’ motion for a preliminary injunction. The hearing was held on November 3, 1986. Plaintiffs seek to delay the administrative review under section 751 pending the resolution of their challenge to the legality of the Commission’s final affirmative injury determination. Plaintiffs say they will suffer irreparable harm if required to participate in reviews, since they \"will have to" }, { "docid": "16602678", "title": "", "text": "Commerce that Koyo’s home market sales were below the cost of production. AR (Pub.) Doc. 194. As a result, on September 29, 1983, Commerce issued questionnaires on cost of production covering entries made as early as April 1, 1978, AR (Pub.) Doc. 198, to which Koyo responded on Januapr 11,1984, AR (Conf.) Doc. 144. These responses were verified in April 1984. AR (Conf.) Doc. 153. On March 9, 1984, Commerce issued final results for forty Japanese exporters subject to the September 1,1981 preliminary results, relying on Treasury master lists as “best information available.” Tapered Roller Bearings and Certain Components Thereof From Japan; Final Results of Administrative Review of Antidumping Finding (“TRBs From Japan III”), 49 Fed. Reg. 8,976 (1984). Koyo was not included in these results. Effective October 30, 1984, § 751 of the Tariff Act of 1930 was amended to require annual reviews only when interested parties request reviews within forty-five days. On October 8, 1985, The Timken Company requested reviews of Koyo and NSK, which were performed by Commerce of Koyo and NSK TRBS for the period April 1,1974 to July 31,1984. International Trade Administration; Initiation of Antidump-ing Duty Administrative Review, 51 Fed. Reg. 24,883 (1986). The Federal Register notice informed that final results for these reviews would be issued by July 31,1987. On August 4, 1986, Koyo was asked to supplement data to the questionnaire responses previously submitted. AR (Conf.) Doc. 170. Koyo submitted this information in September 1986. AR (Conf.) Doc. 182. In late 1986 and early to mid-1987, Commerce conducted verifications of this new information which pertained to entries made between April 1, 1974 through July 31,1986. AR (Conf.) Doc. 264. On December 28,1987, Koyo received another questionnaire for entries dating back to April 1974. AR (Pub.) Doc. 332. Koyo objected to this questionnaire, but responded to the request. AR (Pub.) Doc. 326. On March 29,1989, the International Trade Administration (“ITA” or “Commerce”) published section 751(a) preliminary results on Koyo’s entries covering the period from April 1,1974 through March 31,1979, which stated that based on best information available, the weighted average dumping margins for Koyo" }, { "docid": "4662495", "title": "", "text": "Memorandum Opinion Watson, Judge: In this opinion the Court denies plaintiffs’ Motion for Reconsideration of this Court’s Order of July 26, 1988 denying plaintiffs’ Motion to Modify Injunction Pending Appeal. Background On August 11, 1988, plaintiffs filed the subject Motion for Reconsideration of the Court’s Order of July 26, 1988 which denied their Motion to Modify Injunction Pending Appeal dated June 28, 1988. Plaintiffs allege that the Order of July 26 failed to comply with Rule 52(a) of the Rules of this Court. Plaintiffs also allege that the Order conflicts with the recent decision in Ipsco, Inc v. United States, 12 CIT 676, Slip Op. 88-97 (1988), which granted injunctive relief in a similar case. Plaintiffs brought the underlying action contesting both the final determination of the International Trade Administration of the United States Department of Commerce (\"ITA” or Commerce) and the final determination of the United States International Trade Commission on the dumping of malleable cast iron pipe fittings from Brazil which caused material injury to a domestic industry. On January 12, 1988, this Court entered a final judgment on the merits of the case affirming both determinations of the government. See Fundicao Tupy S.A. v. United States, 12 CIT 6, 678 F. Supp. 898 (1988). Prior to that time, plaintiffs moved for a preliminary injunction to enjoin the automatic liquidation of entries made during the first post-order review period and which had become subject to the automatic assessment provision of § 751 of the Tariff Act of 1930, as amended (the \"Act”) and the implementing § 353.53a(d) of Commerce’s Regulations. The Court denied plaintiffs’ motion for preliminary injunction in Fundicao Tupy S.A. v. United States, 11 CIT 561, 669 F. Supp. 437, 439 (1987) (Tupy I), holding that plaintiffs failed to show immediate and irreparable harm because \"[a]ny harm * * * that plaintiffs may suffer if the entries are liquidated is undeniably the result of their failure to utilize the administrative remedy provided.” The Court accepted ITA’s argument that under the 1984 amendment to § 751 of the Act, plaintiffs had the option to request an administrative" }, { "docid": "4662515", "title": "", "text": "the Commission. Plaintiffs appealed Tupy III on January 12, 1988 and moved to enjoin liquidation of entries made during the first review period pending that appeal. On March 14, 1988, the Court of Appeals for the Federal Circuit dismissed on grounds of mootness the appeal from Tupy I and declared that Tupy I should have no precedential value. Fundicao Tupy S.A. v. United States, 841 F.2d 1101, 1104 (Fed. Cir. 1988). However, the Federal Circuit maintained the status quo by stating that because an appeal is pending from Tupy III, \"it would be inappropriate at this time to remand to the trial court with a direction to vacate its order.” Id. On March 16,1988, this Court granted plaintiffs motion for an injunction pending appeal of Tupy III. Fundicao Tupy S.A. v. United States, 12 CIT 231, Slip Op. 88-32 (Mar. 16, 1988) (Tupy IV). The time then arrived to request reviews of merchandise imported during the second review period, May 1, 1987 to April 30, 1988. Notice was again published in the Federal Register that, in accordance with 19 C.F.R. §§ 353.53a and 355.10, administrative reviews would have to be requested not later than May 31,1988. Antidump-ing or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 53 Fed. Reg. 16,178 (May 5, 1988). The notice advised that if no review was requested, Commerce would instruct the Customs Service to assess an-tidumping duties on the Brazilian entries at a rate equal to the cash deposit of (or bond for) estimated an-tidumping or countervailing duties required on those entries at the time of entry, or withdrawal from warehouse, for consumption and to continue to collect the cash deposit previously ordered. This notice is not required by statute, but is published as a service to the international trading community. 53 Fed. Reg. at 16,179. Plaintiffs did not request Commerce to initiate an administrative review before the May 31, 1988 deadline. Instead, plaintiffs moved on June 28, 1988 to modify the injunction pending appeal issued in Tupy IV to include the second review period. On July 21, 1988, yet another" }, { "docid": "11640582", "title": "", "text": "to dispose of a backlog of incomplete reviews of TRBs, Commerce divided the administrative proceedings for Koyo into two parts — one covering the 1974 through March, 1979 review periods, and the other covering the April, 1979 through July, 1985 review periods (later expanded to include the 1985-86 review periods). On June 1, 1990, Commerce published the final results for the 1974 through March, 1979 review periods for Koyo. See Tapered Roller Bearings Four Inches or Less in Outside Diameter From Japan; Final Results of Antidumping Duty Administrative Review, 55 Fed.Reg. 22,369 (1990). On May 13, 1991 Koyo resubmitted its data for the 1979-86 review periods to conform with Commerce’s current computer format. P.R.Doe. No. 719, Fiche 16, Frame 1. On September 17, 1993, Commerce issued a supplemental questionnaire. P.R.Doe. No. 790, Fiche 41, Frames 66-71. Koyo responded to the supplemental questionnaire on November 1, 1993. P.R.Doe. No. 799, Fiche 42, Frame 1. Commerce published the final results for these reviews on November 24, 1994. See Final Results, 59 Fed.Reg. at 56,035. Koyo brought this action pursuant to Rule 56.2 of the Rules of this Court for judgment upon the agency record claiming that the following actions by Commerce were unsupported by substantial evidence on the agency record and not in accordance with law: (1) applying best information available (“BIA”) to sample sales; (2) applying BIA to discounts and allowances; and (3) comparing components split from home market tapered roller bearing sets to cups and cones sold individually in the U.S. market. On January 18, 1993, this Court granted Koyo’s consent application for a preliminary injunction suspending liquidation of entries of TRBs involved in the reviews at issue during the pendency of this litigation. Discussion The Court’s jurisdiction in this action is derived from 19 U.S.C. § 1516a(a)(2) (1994) and 28 U.S.C. § 1581(c) (1994). The Court must uphold Commerce’s final determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1994). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable" }, { "docid": "18696501", "title": "", "text": "the purpose of conducting an administrative review of the Order, Commerce issued a questionnaire to Industria de Fundicao Tupy. The response date was September 20, 1994, day 60 of the annual review. By letter dated August 8,1994, Industria de Fundicao Tupy requested that Commerce immediately revoke the finding of dumping against malleable cast iron pipe fittings from Brazil. It based its request on the Court’s decision in Kemira Fibres Oy v. United States (“Kemira I”), 18 CIT 687, Slip Op. 94-120 (July 26, 1994). Defendant-intervenors Grinnell, Ward and Stockham, domestic manufacturers of malleable iron pipe fittings, oppose plaintiffs’ motion for injunctive relief. These interested parties were members of the industry group that petitioned for the investigation which resulted in issuance of the Order. Defendant-intervenors’ Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction (“Defendant-intervenors’ Brief”) at 2. Discussion In order for a preliminary injunction to issue, plaintiffs must demonstrate: (1) that it has a likelihood of success on the merits; (2) that there is a threat of immediate and irreparable harm to plaintiffs if relief is not granted; (3) that the balance of hardships to the parties favors issuance of the preliminary injunction; and (4) that the public interest would be better served by a grant of the relief requested. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983); Timken Co. v. United States, 11 CIT 504, 506, 666 F. Supp. 1558, 1559 (1987). “If any one of the requisite factors has not been established by plaintiffs, the motion for a preliminary injunction must be denied.” Trent Tube Div., Crucible Materials Corp. v. United States, 14 CIT 587, 588, 744 F. Supp. 1177, 1179 (1990), citing S.J. Stile Assocs. Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261, 646 F.2d 522, 525(1981); Budd Co., Wheel and Brake Div. v. United States, 12 CIT 1020, 1022, 700 F. Supp. 35, 37 (1988). Plaintiffs’ Likelihood of Success on the Merits: Before the Court is the Commerce companion regulation to the anti-dumping laws, 19 C.F.R. § 353.25(d)(4). Plaintiffs make two distinct arguments based on § 353.25(d)(4)" }, { "docid": "16627739", "title": "", "text": "remands to Commerce only on the issue of the calculation of COP and CV with respect to Dalmine’s galvanized products. The Court affirms Commerce’s actions on all other issues. II PROCEDURAL BACKGROUND On June 23, 1994, Quanex filed a petition with Commerce requesting an antidumping investigation of seamless pipe from Italy. Petition from Schagrin Assoc, to Sec. of Commerce (“Petition”), Administrative Record (“AR”) Pub. Doc. 1, Fiche 2-3, Fr. 1. Quanex alleged that seamless pipe was being, or was likely to be, sold in the United States at less than fair value, within the meaning of section 731 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673 (1988). The ITA initiated an antidumping investigation on July 13, 1994, published in Federal Register on July 20, 1994. Initiation of Antidumping Duty Investigations: Small Diameter Circular Seamless Carbon and Alloy Steel Standard, Line and Pressure Pipe from Argentina, Brazil, Germany and Italy, 59 Fed.Reg. 37,025 (“Initiation Notice”). Commerce issued a preliminary negative determination on January 27, 1995. Notice of Preliminary Determination of Sales at Not Less Than Fair Value: Small Diameter Circular Seamless Carbon and Alloy Steel, Standard, Line and Pressure Pipe from Italy, 60 Fed.Reg. 5358 (“Preliminary Determination”). In the Final Determination, however, Commerce determined that Dalmine’s weighted-average dumping margin was 1.84 percent. 60 Fed.Reg. at 31,992. Dalmine and Quanex challenge certain aspects of Commerce’s Final Determination. III DISCUSSION A Standard of Review In reviewing a final ITA determination, this Court will “hold unlawful any determina tion, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B). “Substantial evidence ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the administrative agency’s finding from being supported by substantial evidence.’ ” Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984) (quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026-27,16 L.Ed.2d 131 (1966)). In reviewing an agency’s construction" }, { "docid": "4662513", "title": "", "text": "administrative review of this first review period. Rather, plaintiffs asked this Court to enjoin liquidation of the entries made during the first review period. In their motion for an injunction, plaintiffs did not challenge the validity of 19 C.F.R. § 353.53a(d), which is the regulation providing for the automatic assessment of antidumping duties at the estimated duty rate. On August 3, 1987 the Court denied the motion for a preliminary injunction: The relevant statutory scheme contemplates that Commerce, in the first instance, be afforded an opportunity to review its determinations in the course of calculating actual dumping margins for a given period. Under the facts of this case, to grant the extraordinary remedy of an injunction would be to improperly reward plaintiffs’ efforts to thwart that scheme. Accordingly, this Court will not exercise its injunctive power to rescue plaintiffs from the consequence of its decision not to initiate the administrative review process. Fundicao Tupy S.A. v. United States, 11 CIT 561, 669 F. Supp. 437, 439 (1987) (Tupy I). In denying the preliminary injunction, Tupy I found that any \"immediate and irreparable harm” resulted from plaintiffs’ failure to- employ the available administrative remedy. Id. On August 28,1987, another judge of this Court granted a preliminary injunction in a case with similar facts. OKI Elec. Indus. Co. v. United States, 11 CIT 624, 669 F. Supp. 480 (1987). Oki held that importers did not need to request an administrative review in order to obtain an injunction against liquidation. Oki did not address the decision in Tupy I. Oki was not appealed. Faced with a split of authority within the Court of International Trade, the Court granted an injunction pending plaintiffs’ appeal of the denial of the injunction in Tupy I. Fundicao Tupy S.A. v. United States, 11 CIT 635, 671 F. Supp. 27 (1987) (Tupy II). The merits of this case were decided on January 12, 1988. Fundicao Tupy S.A. v. United States, 12 CIT 6, 678 F. Supp. 898 (1988) (Tupy III), appeal docketed, No. 88-1233 (Fed. Cir. Jan. 12, 1988). Tupy III affirmed the determinations of both Commerce and" }, { "docid": "22258372", "title": "", "text": "NIES, Circuit Judge. Fundicao Tupy S.A. and Tupy American Foundry Corporation (collectively “Tupy”) appeal the United States Court of International Trade’s order in Fundicao Tupy S.A. v. United States, 669 F.Supp. 437 (CIT 1987), denying Tupy’s motion for a preliminary injunction to prevent the government from liquidating certain entries pending the court’s decision on the merits of Tupy’s challenge to the underlying Antidumping Duty Order. In view of the trial court’s intervening judgment on the merits, we dismiss the appeal as moot. I Tupy produces malleable, cast-iron pipe in Brazil and imports it to the United States. The Cast Iron Pipe Fittings Committee petitioned the United States Commerce Department’s International Trade Administration (“Commerce”) and the United States International Trade Commission (“Commission”) for review of the imports, alleging that they injured a domestic industry. Commerce determined Tupy sold at less than fair value (LTFV). 51 Fed.Reg. 10,897 (March 31, 1986). The Commission determined injury to a domestic industry existed. 51 Fed.Reg. 18,670 (May 21, 1986). Accordingly, an Antidumping Duty Order issued. 51 Fed.Reg. 18,640 (May 21, 1986). Thereafter, Tupy’s unliquidated entries were assessed antidumping duties and Tupy paid a deposit, based on the amount of estimated duties assessed, at the time of entry. Before the entries were liquidated, however, Tupy sought to enjoin liquidation pending the Court of International Trade’s decision on the merits of Tupy’s challenge to the underlying Antidumping Duty Order. That challenge asserted that Commerce’s LTFV determination and the Commission’s injury determination were each wrong. The court sat as a three-judge panel (Watson, DiCarlo and Tsoucalas, JJ.) and denied Tupy’s motion for a preliminary injunction, finding that Tupy had failed to prove immediate and irreparable harm, one of the four factors considered in deciding whether to grant such an injunction. See, e.g., Matsushita Elec. Indus. Co. v. United States, 823 F.2d 505, 509 (Fed.Cir.1987) (reversing grant of preliminary injunction, because finding on irreparable harm factor clearly erroneous, without considering other three factors — likelihood of success on merits, balance of hardships, public interest). Noting that Judge Carman had granted a preliminary injunction upon similar facts in OKI Electric" }, { "docid": "18963888", "title": "", "text": "Commerce’s information requests. Id. Groex, however, was still in business when it received Commerce’s questionnaires. The Court finds that there is sufficient evidence on the record demonstrating Groex’s refusal to cooperate. Accordingly, Commerce’s application of first-tier BIA to Groex was in accordance with law and was supported by substantial evidence. C. Plaintiff Equiñor Commerce sent a questionnaire covering the fifth and sixth reviews to Sunset Farms (“Sunset”) on April 13, 1994 and a questionnaire covering the seventh review to Flores el Majui (“Majui”) on May 5, 1994. Pub. Doc. No. 1821, Def.’s, Mem. Opp’n Equiflor’s Mem. Supp. Mot. J. Agency R., Ex. 12., In the preliminary results, Commerce assigned first-tier BIA to both Majui and Sunset stating that they “failed to respond to our requests for information.” Preliminary Results, 60 Fed.Reg. at 30,272, On August 11, 1995, Equiflor and Espirit Miami (collectively “Equiflor”) filed a ease brief in the administrative review of the present proceeding. Pub. Doe. No. 1692, Def.’s Mem. Opp’n Equiflor’s Mem Supp. Mot.- J. Agency R., Ex. 9. Equiflor maintained that Majui could not have received Commerce’s questionnaire since it had gone out of business. Id. at 2. Equiflor also argued that Sunset was experiencing financial and personnel difficulties, therefore, Commerce should have declined to apply first-tier BIA to the company. Id. at 5. In the final determination, Commerce did not alter its decision and once again applied first-tier BIA to both Majui and.Sunset. 61 Fed.Reg. at 42,862-63. Equiflor argues that Commerce should not have assigned a non-cooperative BIA rate to Majui because the company no longer existed on May 5, 1994, when Commerce’s questionnaire in the seventh review (the only review involving Majui) was sent out; therefore, Majui never .received the questionnaire. Equiflor’s Mem. Supp. Mot. J. Agency R. at 3 [hereinafter Equiflor Brief]. The record shows, however, that Majui did receive the questionnaire. See Def.’s Mem. Opp’n Equiflor’s Mot. J. Agency R., Ex. 12. Because substantial evidence exists to show that Majui received Commerce’s questionnaire and did not respond, Commerce’s application of first-tier BIA to Majui was appropriate. Equiflor also argues that Commerce erred in" }, { "docid": "11640597", "title": "", "text": "in a timely manner. Pis.’ Mem.Supp.Mot.JAgeney R. at 23-24. In response, Commerce argues that it properly resorted to BIA after Koyo failed to respond adequately to an information request. Commerce asserts that it gave Koyo the choice to report discounts on a transaction-specific or customer-specific basis and Koyo did not comply with either option. Commerce explains that Koyo provided Commerce with average discount rates for the review periods in question. Commerce further contends that accuracy in calculating the proper dumping margins demanded that discounts be reported on a specific basis. Defs.’ Opp’n to Pis.’ Mot.J.Agency R. at 14-18. Commerce also defends its choice of BIA emphasizing that Koyo did not report accurate discount information and, therefore, Commerce did not reject low margin information in favor of high margin information that was demonstrably less probative of current conditions. Commerce also insists that the highest discount figures used by Commerce were very close to the figures supplied by Koyo. Id. at 18-19. Defendant-intervenor Timken supports Commerce’s position on this issue. Def-Int.’s Opp’n to Pis.’ Mot.J.Agency R. at 19-24. On May 13, 1991, Koyo submitted revised data explaining its method of reporting discounts as follows: Koyo calculated adjustments for discounts based upon its income statements for each year of the POR because the discount programs always applied to a variety of products, including but not limited to the subject merchandise. For this POR, [Koyo] does not have computerized eustomer-by-customer data for either discounts or allowances. Therefore, Koyo calculated a combined discount and allowance factor for each year because these expenses are reported as one expense on [Koyo’s] income statements. The combined discount/allowance factor was calculated by dividing the total discounts and allowances actually granted during the review period by the total value of sales during that review period. This factor was then multiplied by the per-unit sales price for each sale to derive the expense that is reported on the computer tape. P.R.Doc. No. 719, Fiche 16, at C-9. In the supplemental questionnaire dated September 17, 1993, Commerce requested Koyo to “provide documentation of the discount rates in effect during each of the" }, { "docid": "4662496", "title": "", "text": "Court entered a final judgment on the merits of the case affirming both determinations of the government. See Fundicao Tupy S.A. v. United States, 12 CIT 6, 678 F. Supp. 898 (1988). Prior to that time, plaintiffs moved for a preliminary injunction to enjoin the automatic liquidation of entries made during the first post-order review period and which had become subject to the automatic assessment provision of § 751 of the Tariff Act of 1930, as amended (the \"Act”) and the implementing § 353.53a(d) of Commerce’s Regulations. The Court denied plaintiffs’ motion for preliminary injunction in Fundicao Tupy S.A. v. United States, 11 CIT 561, 669 F. Supp. 437, 439 (1987) (Tupy I), holding that plaintiffs failed to show immediate and irreparable harm because \"[a]ny harm * * * that plaintiffs may suffer if the entries are liquidated is undeniably the result of their failure to utilize the administrative remedy provided.” The Court accepted ITA’s argument that under the 1984 amendment to § 751 of the Act, plaintiffs had the option to request an administrative review of the subject entries and thus prevent the alleged \"irreparable harm” of automatic liquidation under 19 C.F.R. § 353.53a(d). The Court found that plaintiffs did not challenge the validity of the regulations, nor did they dispute \"that they were properly notified of the necessity of requesting a review” in order to prevent the automatic assessment of duties. Id. The Court recognized the importance of the issues raised by plaintiffs’ motion for injunctive relief and granted a certification for interlocutory appeal and a stay of its denial of the preliminary injunction pending appeal. See Fundicao Tupy S.A. v. United States, 11 CIT 635, 671 F. Supp. 27 (1987) (Tupy II). When this Court issued its final decision on the merits, however, the Court of Appeals for the Federal Circuit dismissed the interlocutory appeal of our denial of the preliminary injunction on the grounds of mootness. See Fundicao Tupy S.A. v. United States, 841 F.2d 1101 (Fed. Cir. 1988). The stay of the decision denying the preliminary injunction in Tupy I pending the interlocutory appeal became" }, { "docid": "10188719", "title": "", "text": "proceed with an appraisement based on the facts available, and (2) if NTN failed to cooperate with Commerce by not complying to the best of its ability with the request for information, Com merce would use information adverse to NTN’s interest in conducting its dumping analysis. Id. (General Instructions). On September 9, 1996, NTN responded to Commerce’s Questionnaire regarding United States market sample sales as follows: (1) customers requested sample sales; (2) sample sales were reported with a code of “S” and other sales as “X”; (3) the sale was entered as a sample and recorded as a sample on order forms and invoices; (4) due to the quantity of sample sales and limited time to respond, NTN did not have time to review each model’s purchase history; and (5) “NTN is the manufacturer of all the merchandise sold as samples.” NTN’s Questionnaire Resp., Sec. C, at C-43 (Case No. A-588-804, Fiche 202, Frame 90, Proprietary Doc. 24). NTN further responded that certain information concerning sample sales regarding Commerce’s questions three and four was irrelevant. See id. at C-44. Commerce sent a supplemental questionnaire to NTN requesting additional information, however, none of the questions appear to have concerned NTN’s reported sample sales. See Commerce’s Supplemental Questionnaire (Dec. 2,1996) (Case No. A-588-804, Fiche 85, Frame 26, Pub. Doc. 136). Similarly, none of NTN’s responses to the supplemental questionnaire addressed the samples. See NTN’s Supplemental Questionnaire Resp. (Dec. 19, 1996) (Case No. A-588-804, Fiche 89, Frame 28, Pub. Doc. 149). Commerce later verified that NTN’s records identified certain sales as samples and that the sale price for a sample was determined by a salesperson. See Commerce’s Verification Report for NTN (May 8,1997) (Case No. A-588-804, Fiche 96, Frame 47, Pub. Doc. 180, at 5). Subsequently, NTN requested that Commerce exclude its sample sales from its United States sales database pursuant to NSK, 115 E3d at 975. Commerce rejected NTN’s request, noting that although it would follow NSK and “exclude sample transactions, [that is,] transactions for which a respondent has established that there is either no transfer of ownership or no consideration, from" }, { "docid": "18696496", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiffs in this case are Industria de Fundicao Tupy and American Iron & Alloys Corporation (collectively “Tupy”). Industria de Fundicao Tupy is a Brazilian corporation which manufactures malleable cast iron pipe fittings and exports them to the United States through its wholly-owned U.S.-based subsidiary, American Iron & Alloys Corporation. Pursuant to Rule 65 of the Rules of the Court, on September 9, 1994, Tupy applied for a temporary restraining order (“TRO”) and a preliminary injunction to enjoin the Department of Commerce, International Trade Administration (“Commerce”), from conducting an administrative review with respect to Antidumping Duty Order: Malleable Cast Iron Pipe Fittings From Brazil, 51 Fed. Reg. 18,640 (1986) (the “Order”). Plaintiffs seek this relief during the pen-dency of their civil action which challenges Commerce’s right to conduct an- administrative review of the Order for the period May 1, 1993 through April 30,1994. On September 9, 1994, Judge Richard W Goldberg of this court granted plaintiffs’ application for a TRO and scheduled a full hearing for September 13,1994 with respect to plaintiffs’ request for a preliminary injunction. This hearing was rescheduled for September 28, 1994, at which time the Court received oral argument in order to determine whether preliminary injunctive relief would be appropriate. Background On March 31, 1986, Commerce determined that Tupy’s malleable cast iron pipe fittings from Brazil were being, or were likely to be, sold in the United States at less than fair value. Antidumping; Malleable Cast Iron Pipe Fittings, Other Than Grooved, From Brazil; Final Determination of Sales at Less ThanFair Value, 51 Fed. Reg. 10,897 (1986). Subsequently the International Trade Commission found that imports of Tupy’s malleable iron pipe fittings were causing material injury to the U.S. industry which produced the like product. Certain Cast-Iron Pipe Fittings From Brazil, Korea, and Taiwan, 51 Fed. Reg. 18,670 (1986). On May 21, 1986, Commerce issued the antidumping duty order with respect to imports of malleable iron pipe fittings from Brazil. 51 Fed. Reg. 18,640. Commerce did not conduct administrative reviews of the Order in 1987 and 1988. On May 3,1989, during the third annual anniversary" }, { "docid": "18696497", "title": "", "text": "for a preliminary injunction. This hearing was rescheduled for September 28, 1994, at which time the Court received oral argument in order to determine whether preliminary injunctive relief would be appropriate. Background On March 31, 1986, Commerce determined that Tupy’s malleable cast iron pipe fittings from Brazil were being, or were likely to be, sold in the United States at less than fair value. Antidumping; Malleable Cast Iron Pipe Fittings, Other Than Grooved, From Brazil; Final Determination of Sales at Less ThanFair Value, 51 Fed. Reg. 10,897 (1986). Subsequently the International Trade Commission found that imports of Tupy’s malleable iron pipe fittings were causing material injury to the U.S. industry which produced the like product. Certain Cast-Iron Pipe Fittings From Brazil, Korea, and Taiwan, 51 Fed. Reg. 18,670 (1986). On May 21, 1986, Commerce issued the antidumping duty order with respect to imports of malleable iron pipe fittings from Brazil. 51 Fed. Reg. 18,640. Commerce did not conduct administrative reviews of the Order in 1987 and 1988. On May 3,1989, during the third annual anniversary month of the Order, Commerce solicited requests for an administrative review of the Order. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 54 Fed. Reg. 18,918 (1989). The domestic industry did not request an administrative review. On May 8,1990, during the fourth annual anniversary month of the Order, Commerce again solicited requests for administrative review. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 55 Fed. Reg. 19,093 (1990). Again, no requests for a review ensued. On May 2, 1991, during the fifth annual anniversary month of the Order, Commerce published a notice of intent to revoke the Order. Malleable Cast-Iron Pipe Fittings From Brazil, Intent to Revoke Antidump-ing Order, 56 Fed. Reg. 20,193 (1991). On May 30, 1991, the Cast Iron Pipe Fittings Committee, the petitioner in the original investigation, objected to the proposed revocation. Consequently, on June 26, 1991, Commerce determined not to revoke the Order. Malleable Cast Iron Pipe Fittings From Brazil; Determination Not to Revoke Antidumping Duty Order, 56 Fed." } ]

[ { "docid": "2656971", "title": "", "text": "adopted an ad hoc method of determining whether plaintiffs were similarly situated under § 216(b). In particular, I employ the two-step approach to § 216(b) certification adopted by several other courts. First, I must determine whether a collective action should be certified for notice purposes. Then, after discovery is completed and the case is ready for trial, I revisit the issue of certification. At the notice stage, courts following the ad hoc method “require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan____” Id. at 1066 (citing Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.), judgment ajfd. in part, appeal dismissed in part, 862 F.2d 439 (3d Cir.1988), judgment ajfd. and remanded, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). The court then makes a second determination after discovery has been completed and the case is ready for trial. Bayles, 950 F.Supp. at 1066. At this second stage, although not specifically deemed, the “similarly situated” standard is higher. Id. In determining whether plaintiffs are similarly situated after discovery is completed, courts address several factors: (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required by the ADEA before instituting suit. Bayles at 1066 (citing See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987), vacated in part on other grounds, 122 F.R.D. 463 (D.N.J.1988)). I must also consider whether certification would serve the purposes and putative benefits of a collective action under § 216. The Supreme Court has identified main benefits of a collective action under § 216(b): A collective action allows ... plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issue of law and fact arising from the same alleged ... activity. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 486,107 L.Ed.2d 480" } ]

[ { "docid": "12930797", "title": "", "text": "proper test. See, e.g., Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1108 (10th Cir.2001); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001); Moeck v. Gray Supply Corp., No. 03-1950(WGB), 2006 WL 42368, at *4 (D.N.J. Jan.6, 2006); Aguayo v. Oldenkamp Trucking, No. CV F 04-6279 ASI LJO, 2005 WL 2436477, at *2-3 (E.D.Cal. Oct. 3, 2005); Mike v. Safeco Ins. Co. of Am., 274 F.Supp.2d 216, 219 (D.Conn.2003); Realite v. Ark Rests. Corp., 7 F.Supp.2d 303, 308 (S.D.N.Y.1998); Belcher v. Shoney’s, Inc., 927 F.Supp. 249, 251 (M.D.Tenn.1996). The court in Mooney v. Aramco Services Co. described the two-step analysis adopted by most courts: [T]he trial court approaches the “similarly situated” inquiry via a two-step analysis. The first determination is made at the so-called “notice stage.” At the notice stage, the district court makes a decision — usually based only on the pleadings and any affidavits which have been submitted— whether notice of the action should be given to potential class members. Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in “conditional certification” of a representative class. If the district court “conditionally certifies” the class, putative class members are given notice and the opportunity to “opt-in.” The action proceeds as a representative action throughout discovery. The second determination is typically precipitated by a motion for “decertification” by the defendant usually filed after discovery is largely complete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives— i.e., the original plaintiffs — proceed to trial on their individual claims. 54 F.3d 1207, 1213-14 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156" }, { "docid": "1552154", "title": "", "text": "165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). . Id. at 172, 110 S.Ct. 482. . Mooney, 54 F.3d at 1213. . Id. at 1213-14. . Id. at 1214. .Id. . Id. . See Mooney, 54 F.3d at 1214. . Id. at 288. . Id. . See Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir.2001) (finding that the district court did not err in applying the \"ad hoc” two-step approach); Grayson v. K Mart Corp., 79 F.3d 1086, 1096 n. 12 (11th Cir.1996) (\"it is clear that the requirements for pursuing a § 216(b) class action are independent of, and unrelated to, the requirements for class action under [Rule] 23”); King v. GE Co., 960 F.2d 617, 621 (7th Cir.1992) (stating that the § 216(b) procedure preempts the Rule 23 class action procedure). . Barnett v. Countrywide Credit Indus., Inc., 2002 WL 1023161 at *1 (N.D.Tex. May 21, 2002). . Dybach v. Fla. Dept. of Corrections, 942 F.2d 1562, 1567-68 (11th Cir.1991). . Crain v. Helmerich & Payne Int’l Drilling Co., 1992 WL 91946, *2 (E.D.La. April 16, 1992) (quoting Heagney v. European American Bank, 122 F.R.D. 125, 127 (E.D.N.Y.1988)). . Mooney, 54 F.3d at 1213. . Id. at 1213-14. . Id. at 1214. . Id. . See, e.g., Dorsey v. J & V Communication Services, Inc., No. H-04-0496 (S.D.Tex. May 20, 2004) (Harmon, J.) .Id. . Doc. 19 at 1. . Id. at 8. . See, e.g., U.S. Dept. of Labor v. Cole Enterprises, 62 F.3d 775 (6th Cir.1995) (affirming district court's entry of judgment in favor of Secretary of Labor in “off the clock” case and approving use of estimates in calculating back wages due). . See Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001) (\"During this 'second stage’ analysis, a court reviews several factors, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations....”)." }, { "docid": "22815735", "title": "", "text": "therefore make a more informed factual determination of similarity. Id. This second stage is less lenient, and the plaintiff bears a heavier burden. Id. (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001)). In Anderson, we again refused to draw bright lines in defining similarly, but explained that as more legally significant differences appear amongst the opt-ins, the less likely it is that the group of employees is similarly situated. Id. (“Exactly how much less lenient we need not specify, though logically the more material distinctions revealed by the evidence, the more likely the district court is to decertify the collective action.”). We also refused to “specify how plaintiffs’ burden of demonstrating that a collective action is warranted differs at the second stage.” Id. Rather, we emphasized the fact that the “ultimate decision rests largely within the district court’s discretion,” and clarified that in order to overcome the defendant’s evidence, a plaintiff must rely on more than just “allegations and affidavits.” Id. Because the second stage usually occurs just before the end of discovery, or at its close, the district court likely has a more extensive and detailed factual record. In Anderson, we also quoted approvingly of Thiessen, where the Tenth Circuit identified a number of factors that courts should consider at the second stage, such as: “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants] [that] appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations^]” Anderson, 488 F.3d at 953 (quoting with approval Thiessen, 267 F.3d at 1103); see also Mooney, 54 F.3d at 1213 n. 7, 1215-16. Thus, at the second stage, “although the FLSA does not require potential class members to hold identical positions, the similarities necessary to maintain a collective action under § 216(b) must extend beyond the mere facts of job duties and pay provisions” and encompass the defenses to some extent. Anderson, 488 F.3d at 953 (citation and quotation marks omitted). For example, the district court must consider whether the defenses that apply to the opt-in plaintiffs’ claims" }, { "docid": "346964", "title": "", "text": "1219. In making the determination of whether plaintiffs are “similarly situated,” various approaches have been suggested. See Thiessen v. General Electric Capital Corp; 267 F.3d 1095, 1102-03 (10th Cir.2001) (discussing three possible approaches to the “similarly situated” analysis). However, it appears that the majority of courts prefer the ad hoc, two-tiered approach, as described in Mooney v. Aramco Servs. Co., supra, and Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). See, e.g., Hipp, 252 F.3d at 1218-19 (“The two-tiered approach to certification of § 216(b) opt-in classes ... appears to be an effective tool for district courts to use in managing these often complex cases, and we suggest that district courts in this circuit adopt it in future cases.”); Bayles v. American Med. Response of Colo., Inc., 950 F.Supp. 1053, 1067 (D.Colo.1996) (“To the extent that [different approaches yield different results], I would apply the Lusardi approach, which affords flexibility in weighing concerns for judicial economy against unfair prejudice to a defendant tempered by the remedial purposes of the FLSA.”). Under this approach, the district court makes two determinations, on an ad hoc, case-by-case basis. At the first determination, called the “notice stage,” the court makes a decision based on the pleadings and any affidavits that have been submitted, as to whether the class should be certified. Due to the minimal evidence at the court’s disposal, this determination is made based on a fairly lenient standard, and typically results in a “conditional certification” of a representative class. Mooney, 54 F.3d at 1213-14. The second determination is made after discovery is largely complete, usually on a motion for decertification by the defendant. There, the court weighs various factors in making a factual determination as to whether the plaintiffs are similarly situated. Id. In Lusardi, an ADEA class action was brought against the defendant in connection with various work force reductions. While noting the lack of authority on the subject of similarly-situated plaintiffs, the court recognized that the only similarities between the plaintiffs were that they were all present or former employees of Xerox, and were all alleging violations of the" }, { "docid": "14254346", "title": "", "text": "1345. This first look at the appropriateness of the representative action is not rigorous; rather, the Court must only determine that plaintiffs have established a colorable basis for their claim that a class of similarly situated plaintiffs exists. Severtson v. Phillips Beverage Co., 141 F.R.D. 276, 278-79 (D.Minn.1992). In the instant action, the Court conditionally certified a collective action pursuant to the FLSA and authorized notice to potential opt-in plaintiffs. (Doc. No. 71 (October 18, 2004 Order adopting Report and Recommendation granting Plaintiffs’ Motion for Judicial Notice).) In doing so, the Court specifically reserved the issue of whether discovery would “demonstrate that a collective action of Store Managers is not the appropriate manner in which to conduct this litigation” for future consideration. (Id.) The Court specifically noted that “the determination to allow the providing of notice to persons who have been employed as Store Managers by Defendant is based on a less than full and substantial record.” (Id.) At the second stage, now germane, a defendant may move to decertify the class if, after discovery, the evidence shows that members of a conditionally certified class are not similarly situated. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1214, 1214 n. 8 (5th Cir.1995) (ADEA claim). The defendant’s motion to decertify is analyzed under a stricter post-discovery standard. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court de-certifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives — i.e. the original plaintiffs — proceed to trial on their individual claims. Id. at 1214. “During this second stage analysis, a court reviews several factors, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Thiessen v. General Elec. Capital Corp., 267 F.3d" }, { "docid": "318066", "title": "", "text": "of the FLSA does not define the term “similarly situated,” and there is little circuit law on the subject. The Ninth Circuit has not ruled on the issue. As explained in the case of Thiessen v. GE Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir.2001), cert. denied, 536 U.S. 934, 122 S.Ct. 2614, 153 L.Ed.2d 799 (2002), federal district courts have adopted or discussed at least three approaches to determining whether plaintiffs are “similarly situated” for purposes of § 216(b). See, e.g., Mooney v. Aramco, 54 F.3d 1207, 1213 (5th Cir.1995) (discussing two different approaches adopted by district courts); Bayles v. American Med. Response of Colo., Inc., 950 F.Supp. 1053, 1058 (D.Colo.1996). Under the first approach, a court determines, on an ad hoc case-by-case basis, whether plaintiffs are “similarly situated.” Mooney; Thiessen v. GE Capital Corp, 267 F.3d at 1102-1103. In utilizing this approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are “similarly situated.” Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D.Colo.1997). In doing so, a court “require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Mooney; Thiessen v. GE Capital Corp, 267 F.3d at 1103 (quoting Bayles, 950 F.Supp. at 1066). At the conclusion of discovery (often prompted by a motion to decertify), the court then makes a second determination, utilizing a stricter standard of “similarly situated.” See Mooney; Thiessen v. GE Capital Corp, 267 F.3d at 1103. During this “second stage” analysis, a court reviews several factors, including “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required by the ADEA before instituting suit.” Id. Under the second approach, district courts have incorporated into § 216(b) the requirements of current Federal Rule of Civil Procedure 23. See Thiessen, 267 F.3d at 1103; Bayles, 950 F.Supp. at 1060-61 (discussing cases adopting this approach). In a third approach, district courts have suggested" }, { "docid": "3336987", "title": "", "text": "U.S.C. §§ 621-634, which adopts the FLSA collective action procedure, that the FLSA § 16(b) opt-in procedure preempts Rule 23’s class action procedure); Lusardi v. Lechner, 855 F.2d 1062, 1068 n. 8 (3d Cir. 1988) (“Courts have generally recognized that Rule 23 class actions may not be used under FLSA § 16(b).”); cf. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir.2001) (stating that “[u]nlike class actions under Rule 23, ‘[n]o employee shall be a party plaintiff to any such action unless he’ ” opts in (quoting FLSA § 16(b); emphasis added; first brackets added; second brackets in original)), cert, denied 536 U.S. 934, 122 S.Ct. 2614, 153 L.Ed.2d 799 (2002). The court will therefore construe the aspect of plaintiffs motion in which he seeks class certification on his FLSA claim as a motion to certify a collective action pursuant to FLSA § 16(b). The FLSA provides for a class action where the complaining employees are “similarly situated.” 29 U.S.C. § 216(b). The Tenth Circuit has approved a two-step approach in determining whether plaintiffs are “similarly situated” for purposes of FLSA § 16(b). See Thiessen, 267 F.3d at 1105 (applying FLSA § 16(b) in an ADEA case); see generally, e.g., Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 484-85 (D.Kan. 2004) (explaining that the court applies this two-step approach in an ADEA ease). Under this approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are similarly situated. Thiessen, 267 F.3d at 1102. That is, the district court determines whether a collective action should be certified for purposes of sending notice of the action to potential class members. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995). For conditional certification at the notice stage, a court “require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102 (quotation omitted; brackets in original). The standard for certification at this notice stage, then, is a lenient one that typically results in class certification. See Mooney, 54 F.3d" }, { "docid": "23456014", "title": "", "text": "its decision, and makes a factual determination on the similarly situated question.” Mooney, 54 F.3d at 1214, quoted in Hipp, 252 F.3d at 1218. The “similarly situated” standard at the second stage is less “lenient” than at the first, as is the plaintiffs’ burden in meeting the standard. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001) (describing the “similarly situated” standard at the second stage as “stricter” than that applied at the first stage and noting several relevant factors courts consider, including “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants] [that] appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations”), cert. denied, 536 U.S. 934, 122 S.Ct. 2614, 153 L.Ed.2d 799 (2002). Exactly how much less lenient we need not specify, though logically the more material distinctions revealed by the evidence, the more likely the district court is to decertify the collective action. As a district court in this circuit has correctly observed, although the FLSA does not require potential class members to hold identical positions, see Grayson, 79 F.3d at 1096, the similarities necessary to maintain a collective action under § 216(b) must extend “beyond the mere facts of job duties and pay provisions.” White v. Osmose, Inc., 204 F.Supp.2d 1309, 1314 (M.D.Ala.2002). Otherwise, “it is doubtful that § 216(b) would further the interests of judicial economy, and it would undoubtedly present a ready opportunity for abuse.” Id. We also need not specify how plaintiffs’ burden of demonstrating that a collective action is warranted differs at the second stage. It is sufficient to conclude, again quite logically, that at the second stage plaintiffs may — the ultimate decision rests largely within the district court’s discretion — not succeed in maintaining a collective action under § 216(b) based solely on allegations and affidavits, depending upon the evidence presented by the party seeking decertification. The appellants direct the court to evidence in the record they contend undermines the district court’s conclusion. Whether the record contains evidence arguably supporting the appellants’ position is not" }, { "docid": "346963", "title": "", "text": "v. Hoffman-LaRoche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988), affd in part on other grounds and appeal dismissed in part on other grounds, 862 F.2d 439 (3d Cir.1988), aff'd and remanded on other grounds, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). “A determination of whether proposed class members are ‘similarly situated’ is a fact-specific one.” Pines v. State Farm Gen. Ins. Co., No. CV SA 89-631, 1992 WL 92398 at *7 (C.D.Cal. Feb.25, 1992). Recent circuit court decisions have held that the “similarly situated” requirement is more elastic and less stringent than that for joinder under Rule 20(a). Hipp v. Liberty National Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001) (quoting Grayson v. K-Mart Corp., 79 F.3d 1086, 1095 (11th Cir.1996)). “[Plaintiffs bear the burden of demonstrating a reasonable basis for their claim of class-wide discrimination. The plaintiffs may meet this burden, which is not heavy, by making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which successfully engage defendants’ affidavits to the contrary.” Hipp, 252 F.3d at 1219. In making the determination of whether plaintiffs are “similarly situated,” various approaches have been suggested. See Thiessen v. General Electric Capital Corp; 267 F.3d 1095, 1102-03 (10th Cir.2001) (discussing three possible approaches to the “similarly situated” analysis). However, it appears that the majority of courts prefer the ad hoc, two-tiered approach, as described in Mooney v. Aramco Servs. Co., supra, and Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). See, e.g., Hipp, 252 F.3d at 1218-19 (“The two-tiered approach to certification of § 216(b) opt-in classes ... appears to be an effective tool for district courts to use in managing these often complex cases, and we suggest that district courts in this circuit adopt it in future cases.”); Bayles v. American Med. Response of Colo., Inc., 950 F.Supp. 1053, 1067 (D.Colo.1996) (“To the extent that [different approaches yield different results], I would apply the Lusardi approach, which affords flexibility in weighing concerns for judicial economy against unfair prejudice to a defendant tempered by the remedial purposes of the FLSA.”). Under this approach, the" }, { "docid": "3336988", "title": "", "text": "whether plaintiffs are “similarly situated” for purposes of FLSA § 16(b). See Thiessen, 267 F.3d at 1105 (applying FLSA § 16(b) in an ADEA case); see generally, e.g., Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 484-85 (D.Kan. 2004) (explaining that the court applies this two-step approach in an ADEA ease). Under this approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are similarly situated. Thiessen, 267 F.3d at 1102. That is, the district court determines whether a collective action should be certified for purposes of sending notice of the action to potential class members. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995). For conditional certification at the notice stage, a court “require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102 (quotation omitted; brackets in original). The standard for certification at this notice stage, then, is a lenient one that typically results in class certification. See Mooney, 54 F.3d at 1214; Williams, 222 F.R.D. at 485; Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 568 (N.D.Ala.1995), aff'd, 114 F.3d 1202 (11th Cir.1997) (unpublished table opinion). At the conclusion of discovery, the court then revisits the certification issue and makes a second determination (often prompted by a motion to decertify) of whether the plaintiffs are similarly situated using a stricter standard. Thiessen, 267 F.3d at 1102-03. During this “second stage” analysis, a court reviews several factors, including the disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether plaintiffs made any required filings before instituting suit. Id. at 1103. This ease is in its early stages. Although the lawsuit was. filed approximately eight months ago on December 23, 2003, plaintiff did not complete service of process on all of the defendants until three months later in March of 2004. Plaintiff filed his motion to certify the class on May 24, 2004, the day before the initial" }, { "docid": "22805316", "title": "", "text": "of discrimination. Thiessen v. General Elec. Capital Corp., 13 F.Supp.2d 1131 (D.Kan.1998) (Thiessen II). II. Decertification of plaintiff class and dismissal of opt-in plaintiffs Thiessen contends the district court erred in decertifying the plaintiff class and dismissing the opt-in plaintiffs’ claims without prejudice. We review for abuse of discretion a district court’s decision to certify or decertify a class under the ADEA. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir.1995); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51-52 (3d Cir.1989). Under an abuse of discretion standard, we will not disturb the underlying decision unless we have a definite and firm conviction that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances. See Richardson v. Missouri Pacific R.R. Co., 186 F.3d 1273, 1276 (10th Cir.1999). Class actions under the ADEA are authorized by 29 U.S.C. § 626(b), which expressly borrows the opt-in class action mechanism of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) (1994). Section 216(b) provides for a class action where the complaining employees are “similarly situated.” Unlike class actions under Rule 23, “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id. The overriding question here is whether Thiessen and the twenty-two opt-in plaintiffs are “similarly situated” for purposes of § 216(b). Unfortunately, § 216(b) does not define the term “similarly situated,” and there is little circuit law on the subject. Federal district courts have adopted or discussed at least three approaches to determining whether plaintiffs are “similarly situated” for purposes of § 216(b). See, e.g., Mooney, 54 F.3d at 1213 (discussing two different approaches adopted by district courts); Bayles v. American Med. Response of Colo., Inc., 950 F.Supp. 1053, 1058 (D.Colo.1996). Under the first approach, a court determines, on an ad hoc case-by-case basis, whether plaintiffs are “similarly situated.” Mooney, 54 F.3d at 1213. In utilizing this approach, a court typically" }, { "docid": "23456013", "title": "", "text": "Hipp suggested that district courts deciding whethér to certify a collective action engage in a two-stage analysis as described in detail by the Fifth Circuit Court of Appeals in Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir.1995), from which the Hipp court quoted at length. See Hipp, 252 F.3d at 1218. In Mooney, the court noted that at the initial stage the district court’s decision to certify a class is based primarily on pleadings and affidavits. 54 F.3d at 1213-14. In this respect, the first stage resembles the analysis conducted in the Grayson decision. See Grayson, 79 F.3d at 1097-99. Accordingly, at the initial stage, courts apply a “fairly lenient standard” for determining whether the plaintiffs are truly similarly situated. Mooney, 54 F.3d at 1214, quoted in Hipp, 252 F.3d at 1218. At the second stage, which is “typically precipitated by a motion for ‘de-certification’ by the defendant usually filed after discovery is largely complete and the matter is ready for trial[,] ... the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question.” Mooney, 54 F.3d at 1214, quoted in Hipp, 252 F.3d at 1218. The “similarly situated” standard at the second stage is less “lenient” than at the first, as is the plaintiffs’ burden in meeting the standard. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001) (describing the “similarly situated” standard at the second stage as “stricter” than that applied at the first stage and noting several relevant factors courts consider, including “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants] [that] appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations”), cert. denied, 536 U.S. 934, 122 S.Ct. 2614, 153 L.Ed.2d 799 (2002). Exactly how much less lenient we need not specify, though logically the more material distinctions revealed by the evidence, the more likely the district court is to decertify the collective action. As a district court in this circuit has correctly observed, although the FLSA does" }, { "docid": "16944008", "title": "", "text": "1086, 1095 (11th Cir.1996)); Thiessen v. GE Capital Corp., 267 F.3d 1095, 1102 (10th Cir.2001) (stating that similarly situated employees are “victims of a single decision, policy, or plan”). But the certification of a collective action “typically proceed[s] in two stages.” Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n. 2 (5th Cir.2008). The first stage determines whether notice should be given to potential collective action members and usually occurs early in a case, before substantial discovery, “based only on the pleadings and any affidavits which have been submitted.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.2001) (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir.1995), overruled in part on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)). At the first stage, the plaintiff “has the burden of showing a ‘reasonable basis’ for [her] claim that there are other similarly situated employees.” Morgan, 551 F.3d at 1260 (citations omitted). In other words, the plaintiff must make “a modest factual showing” that she and other employees, with similar but not necessarily identical jobs, suffered from a common unlawful policy or plan. Comer, 454 F.3d at 547 (citations omitted); see also Thiessen, 267 F.3d at 1102 (stating that conditional certification requires “substantial allegations” (quotation and citation omitted)). The standard at the initial stage has been called “not particularly stringent,” ' “fairly lenient,” “flexible],” “not heavy,” and “less stringent than that for joinder under Rule 20(a) or for separate trials under 42(b).” Morgan, 551 F.3d at 1261. Under this “fairly lenient” standard, the initial stage analysis “typically results in ‘conditional certification’” of a collective action. Hipp, 252 F.3d at 1218 (citation omitted). Later, when discovery is complete, an employer may move to decertify the collective action. This is the “second” stage, and the court must then “make a factual determination as to whether there are similarly-situated employees who have opted in.” Sandoz, 553 F.3d at 916 n. 2 (citing Mooney, 54 F.3d at 1214); see also Comer, 454 F.3d at 546-47 (explaining that courts" }, { "docid": "16944007", "title": "", "text": "bright lines for determining whether employees are “similarly situated.” See, e.g., Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir.2010) (“[W]e have not adopted any of the varying approaches for determining whether employees’ claims are sufficiently similar to support maintenance of a representative action.”); O’Brien, 575 F.3d at 585 (“We do not purport to create comprehensive criteria for informing the similarly-situated analysis.”); Morgan v. Family Dollar Stores, 551 F.3d 1233, 1260 (11th Cir.2008) (“[W]e [have] explained what the term does not mean — not what it does.”). Generally, however, courts have found that “similarly situated” employees have similar (not identical) job duties and pay provisions, Morgan, 551 F.3d at 1259-60 (citations omitted), and are “victims of a common policy or plan that violated the law,” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 547 (6th Cir.2006) (quoting Roebuck v. Hudson Valley Farms, Inc., 239 F.Supp.2d 234, 238 (N.D.N.Y.2002)); see also O’Brien, 575 F.3d at 584 (“Showing a ‘unified policy’ of violations is not required.”) (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir.1996)); Thiessen v. GE Capital Corp., 267 F.3d 1095, 1102 (10th Cir.2001) (stating that similarly situated employees are “victims of a single decision, policy, or plan”). But the certification of a collective action “typically proceed[s] in two stages.” Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 916 n. 2 (5th Cir.2008). The first stage determines whether notice should be given to potential collective action members and usually occurs early in a case, before substantial discovery, “based only on the pleadings and any affidavits which have been submitted.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.2001) (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213 (5th Cir.1995), overruled in part on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)). At the first stage, the plaintiff “has the burden of showing a ‘reasonable basis’ for [her] claim that there are other similarly situated employees.” Morgan, 551 F.3d at 1260 (citations omitted). In other words, the plaintiff must make" }, { "docid": "318067", "title": "", "text": "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Mooney; Thiessen v. GE Capital Corp, 267 F.3d at 1103 (quoting Bayles, 950 F.Supp. at 1066). At the conclusion of discovery (often prompted by a motion to decertify), the court then makes a second determination, utilizing a stricter standard of “similarly situated.” See Mooney; Thiessen v. GE Capital Corp, 267 F.3d at 1103. During this “second stage” analysis, a court reviews several factors, including “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required by the ADEA before instituting suit.” Id. Under the second approach, district courts have incorporated into § 216(b) the requirements of current Federal Rule of Civil Procedure 23. See Thiessen, 267 F.3d at 1103; Bayles, 950 F.Supp. at 1060-61 (discussing cases adopting this approach). In a third approach, district courts have suggested incorporating into § 216(b) the requirements of the pre-1966 version of Rule 23, which allowed for “spurious” class actions. See Bayles, 950 F.Supp. at 1064. Wynn v. National Broadcasting Co., 234 F.Supp.2d 1067 (C.D.Cal.2002) echoes this two tier analysis. Wynn employed the two tier approach and noted the lenient standard for ruling on class certification at the notice stage. The Eleventh Circuit endorsed this “two-tiered” approach to certification of § 216(b) opt-in classes. See Hipp v. Liberty National Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001) (two tiered approach is an effective tool). Accord Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 680 (D.Kan.2004) (the court will analyze plaintiffs motion under the lenient “notice stage” standard described above and, in doing so, looks to the substantial allegations in plaintiffs first amended complaint and various affidavits filed by plaintiff.); Wren v. Rgis Inventory Specialists, 2007 WL 4532218, *5 (N.D.Cal.2007) (this Court concludes that the appropriate standard for resolving Plaintiffs’ conditional certification motion is the more lenient standard that is applied by the majority of" }, { "docid": "1622640", "title": "", "text": "‘similarly situated’, courts generally do not require prospective class members to be identical. See generally, Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 567 (1995); Mooney v. Aramco Services, Co., 54 F.3d 1207, 1212 (5th Cir.1995); Bunnion v. Consolidated Rail Corporation, Civ. A. No. 97-4877, 1998 WL 372644, at * 17 (E.D.Pa. May 14, 1998). Under the line of cases established by Lusardi the court resolves the similarly situated issue on an “ad hoc” basis by applying a two step analysis. Mooney, 54 F.3d at 1213. During the first or “notice stage”, the court examines pleadings and affidavits in the record to determine whether notice should be given to potential class members. Brooks, 164 F.R.D. at 568 (quoting Mooney, 54 F.3d at 1213-14). “Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class.” Mooney, 54 F.3d at 1214. Once discovery is complete and more factual information is available to the court, the defendant may file a motion to decertify the class. Id. At this juncture, the court uses a higher standard to analyze the similarly situated issue. Thiessen v. General Electric Capital Corporation, 996 F.Supp. 1071, 1080 (D.Kan.1998), class decertified in Thiessen v. General Electric Capital Corporation, 13 F.Supp.2d 1131 (D. Kan.1998). Generally, district courts have applied three factors in the second or post discovery stage to determine whether opt-in plaintiffs are “similarly situated”: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to [the] defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. Thiessen, 996 F.Supp. at 1080. The first factor assesses the opt-in plaintiffs’ job duties, geographic location, supervision and salary. Thiessen, 996 F.Supp. at 1081; Lusardi, 118 F.R.D. at 358-59; Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 569 (N.D.Al.1995). Generally, allegations of an “overarching” policy are insufficient, and plaintiffs are required to produce “ ‘substantial evidence’ ” of a “ ‘sin gle decision, policy or plan’ Thiessen, 996 F.Supp. at 1081 (citing Brooks, 164 F.R.D. at 566.) The" }, { "docid": "318065", "title": "", "text": "which provides: (1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 1. Similarly Situated To determine whether to certify the class, the main issue to be decided is whether the named plaintiffs are sufficiently “similarly situated” to the proposed opt-in plaintiffs that this case may proceed as a collective action. The FLSA allows one or more employees to pursue an action in a representative capacity for “other employees similarly situated” and is known as a “collective action.” 29 U.S.C. § 216(b); Morisky v. Public Serv. Elect. and Gas Co., 111 F.Supp.2d 493 (D.N.J.2000). Section 216(b) of the FLSA does not define the term “similarly situated,” and there is little circuit law on the subject. The Ninth Circuit has not ruled on the issue. As explained in the case of Thiessen v. GE Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir.2001), cert. denied, 536 U.S. 934, 122 S.Ct. 2614, 153 L.Ed.2d 799 (2002), federal district courts have adopted or discussed at least three approaches to determining whether plaintiffs are “similarly situated” for purposes of § 216(b). See, e.g., Mooney v. Aramco, 54 F.3d 1207, 1213 (5th Cir.1995) (discussing two different approaches adopted by district courts); Bayles v. American Med. Response of Colo., Inc., 950 F.Supp. 1053, 1058 (D.Colo.1996). Under the first approach, a court determines, on an ad hoc case-by-case basis, whether plaintiffs are “similarly situated.” Mooney; Thiessen v. GE Capital Corp, 267 F.3d at 1102-1103. In utilizing this approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are “similarly situated.” Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D.Colo.1997). In doing so, a court “require[s]" }, { "docid": "22805318", "title": "", "text": "makes an initial “notice stage” determination of whether plaintiffs are “similarly situated.” Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D.Colo.1997). In doing so, a court “ ‘require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.’ ” Id. (quoting Bayles, 950 F.Supp. at 1066). At the conclusion of discovery (often prompted by a motion to decertify), the court then makes a second determination, utilizing a stricter standard of “similarly situated.” Id. at 678. During this “second stage” analysis, a court reviews several factors, including “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required by the ADEA before instituting suit.” Id. Under the second approach, district courts have incorporated into § 216(b) the requirements of current Federal Rule of Civil Procedure 23. See Bayles, 950 F.Supp. at 1060-61 (discussing cases adopting this approach). For example, in Shushan v. University of Colo., 132 F.R.D. 263 (D.Colo.1990), the district court concluded “that Rule 23(a)’s four prerequisites [numerosity, commonality, typicality, and adequacy of representation] and 23(b)(3)’s requirement that common questions of fact predominate should be used to determine whether plaintiffs are similarly situated.” Bayles, 950 F.Supp. at 1061 (describing Shushan holding). In a third approach, district courts have suggested incorporating into § 216(b) the requirements of the pre 1966 version of Rule 23, which allowed for “spurious” class actions. See Bayles, 950 F.Supp. at 1064 (holding that, because Advisory Committee Notes to the 1966 amendments make clear that the amendments were not intended to affect § 216(b) actions, “if Rule 23’s standards apply ... at all, it must be through Rule 23 as it existed prior to 1966”). Under the pre 1966 version of Rule 23, the “character of the right sought to be enforced for” the class of plaintiffs must be “several,” there must be “a common question of law or fact affecting the several rights,” and “a common relief’" }, { "docid": "22805317", "title": "", "text": "for a class action where the complaining employees are “similarly situated.” Unlike class actions under Rule 23, “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id. The overriding question here is whether Thiessen and the twenty-two opt-in plaintiffs are “similarly situated” for purposes of § 216(b). Unfortunately, § 216(b) does not define the term “similarly situated,” and there is little circuit law on the subject. Federal district courts have adopted or discussed at least three approaches to determining whether plaintiffs are “similarly situated” for purposes of § 216(b). See, e.g., Mooney, 54 F.3d at 1213 (discussing two different approaches adopted by district courts); Bayles v. American Med. Response of Colo., Inc., 950 F.Supp. 1053, 1058 (D.Colo.1996). Under the first approach, a court determines, on an ad hoc case-by-case basis, whether plaintiffs are “similarly situated.” Mooney, 54 F.3d at 1213. In utilizing this approach, a court typically makes an initial “notice stage” determination of whether plaintiffs are “similarly situated.” Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D.Colo.1997). In doing so, a court “ ‘require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.’ ” Id. (quoting Bayles, 950 F.Supp. at 1066). At the conclusion of discovery (often prompted by a motion to decertify), the court then makes a second determination, utilizing a stricter standard of “similarly situated.” Id. at 678. During this “second stage” analysis, a court reviews several factors, including “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; (3) fairness and procedural considerations; and (4) whether plaintiffs made the filings required by the ADEA before instituting suit.” Id. Under the second approach, district courts have incorporated into § 216(b) the requirements of current Federal Rule of Civil Procedure 23. See Bayles, 950 F.Supp. at 1060-61 (discussing cases adopting this approach)." }, { "docid": "14254347", "title": "", "text": "the evidence shows that members of a conditionally certified class are not similarly situated. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1214, 1214 n. 8 (5th Cir.1995) (ADEA claim). The defendant’s motion to decertify is analyzed under a stricter post-discovery standard. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court de-certifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives — i.e. the original plaintiffs — proceed to trial on their individual claims. Id. at 1214. “During this second stage analysis, a court reviews several factors, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001) (ADEA claim) (internal quotation omitted). Analysis The Court does not determine on the pending Motion whether Plaintiffs properly would be classified as exempt employees; rather, the only issue presently before the Court is whether Plaintiffs are similarly situated. See Bradford, 184 F.Supp.2d at 1345. In conducting this analysis, the Court will consider the factors relevant to the second stage of the procedure under § 216(b). See Thiessen, 267 F.3d at 1103. A. Employment and Factual Settings of Plaintiffs Plaintiffs’ theory of their case, for certification purposes, proceeds in two steps. First, they argue that Heartland has implemented a centralized corporate policy whereby tight labor budgets are imposed on individual Jiffy Lube stores. Thus, in accordance with this centralized policy, “[i]n order to keep labor numbers down and within budget, Store Managers were expected to work on the cars and interact with customers rather than pay overtime to the ‘non-exempt’ employees.” (Mem. in Opp’n at 18.) Second, Plaintiffs argue that “[a]s a direct result of [those] policies and practices ... Store Managers" } ]

[ { "docid": "22326337", "title": "", "text": "pursuant to Bankers Trust Co. v. Mollis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), the litigants had waived strict compliance with the separate judgment requirement by proceeding as if a separate judgment had been entered. II. Jurisdiction and Standard of Review We have jurisdiction pursuant to 28 U.S.C. § 1291. Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court and will not be reversed absent an abuse of discretion. SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001). A district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. Bateman v. United States Postal Serv., 231 F.3d 1220, 1223 (9th Cir.2000). III. Discussion Casey spends the bulk of her time on appeal rearguing the merits of the district court’s grant of summary judgment. However, her notice of appeal expressly states she is appealing only the denial of her Rule 60(b) motion. Normally, the merits of a case are not before the panel in reviewing a Rule 60(b) motion. See Wages v. I.R.S., 915 F.2d 1230, 1234 (9th Cir.1990) (“an appeal from a denial of Rule 60(b) relief does not bring up the underlying judgment for review”) (internal quotation marks omitted). There are thus two issues before the court: First, does the fact that the district court did not enter a judgment separate from its summary judgment minute order somehow allow the district court or this court to revisit the merits of the summary judgment ruling; and, second, did the district court abuse its discretion in denying Casey’s Rule 60(b) motion? A. The Separate Judgment Rule Federal Rule of Civil Procedure 58(a)(1) provides that “[ejvery judgment ... must be set forth on a separate document.” It further states that “unless the court orders otherwise, the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when ... the court denies all relief.” Fed.R.Civ.P. 58(a)(2)(A)(iii); but see Fed. R.App. P. 4(a)(7)(B)(“A failure to set forth a judgment or" } ]

[ { "docid": "21549764", "title": "", "text": "did show that judgment had been entered on this date. II We review the district court’s decision to deny the Rule 60(b)(1) motion for an abuse of discretion. Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). Our jurisdiction is grounded in 28 U.S.C. § 1291. III Fed.R.App.P. 4(a)(1) provides that a civil litigant, in a case in which the United States is not a party, must file a notice of appeal within 30 days of entry of judgment. See Zurich Ins. v. Wheeler, 838 F.2d 338, 340 (9th Cir.1988). Judgment was entered on August 20, 1986; therefore, Stevens was required but failed to file notice by September 19, 1986. Nevertheless, Stevens argues that he is entitled to relief under Rule 60(b)(1), which allows the district court to vacate and reenter the summary judgment because of “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). The effect of granting this motion would be, in essence, to restart the appellate clock for purposes of Rule 4(a)(1). Stevens asserts that the clerk’s failure to notify him of the entry of judgment against him, as required by Fed. R.Civ.P. 77(d), justifies a finding of “excusable neglect” under Rule 60(b)(1). Stevens rests his claim entirely on our en banc decision in Rodgers. In Rodgers we held that the district court did not abuse its discretion in granting a Rule 60(b) motion for relief from judgment where plaintiffs did not receive notice of judgment entered against them. In arriving at this conclusion, we emphasized the significance of plaintiffs’ counsel having exercised due diligence in ascertaining whether judgment had been entered. Both parties in that case sought summary judgment, and the district judge took the matter under advisement. Two days later on March 26, 1980, the district judge entered judgment dismissing the action. The clerk of the court failed to notify the parties of the judgment. Plaintiffs’ counsel sent his secretary in April, May, and June to check the docket sheet to determine the status of the case. The entries on the docket sheet were out of sequence and showed as the last entry the" }, { "docid": "22155623", "title": "", "text": "not more than one year after the judgment ... was entered or taken. The savings clause to Rule 60(b) further provides “[tjhis rule does not limit the power of a court to entertain an independent action to ... set aside a judgment for fraud upon the court.” This Court reviews a district court’s denial of a Rule 60(b) motion for abuse of discretion. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.2000). Rule 60(b) relief “is extraordinary and may only be granted in exceptional circumstances.” Id. “Parties seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for an appeal.” Cummings v. General Motors Corp., 365 F.3d 944, 955 (10th Cir.2004). “Accordingly, our review is meaningfully narrower than review of the merits of a direct appeal.” Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir.2000) (internal quotation omitted). “Given the lower court’s discretion, the district court’s ruling is only reviewed to determine if a definite, clear or unmistakable error occurred below.” Cummings, 365 F.3d at 955 (internal quotation omitted). A reviewing court may reverse only if it finds “a complete absence of a reasonable basis and [is] certain that the ... decision is wrong.” Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir.1999) (internal quotation omitted). However, “[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” FDIC v. United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir.1998) (internal quotation omitted). 1. Rule 60(b)(2) The district court decided Rule 60(b)(2) was unavailable because Zurich did not possess any newly discovered evidence. At best, Zurich merely suspects the information it seeks would lead to new documentary evidence. Assuming the new evidence would substantiate Matrix’s alleged concealment of damaging information, Zurich’s motion still fails. For newly-discovered evidence to provide a basis for a new trial under Rule 60(b)(2), the moving party must show “(1) the evidence was newly discovered since the trial; (2) [the moving party] was diligent" }, { "docid": "29773", "title": "", "text": "we conclude that we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The defendants filed two different motions at the district court, in which they raised essentially the same arguments. One of these was a “Motion to Vacate the Consent Decrees,” brought under Rule 60(b) of the Federal Rules of Civil Procedure. Denials of motions to vacate the judgment under Rule 60(b) are appealable as final orders under 28 U.S.C. § 1291. See Stone v. INS, 514 U.S. 386, 401, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351, 1354 (9th Cir.1990); Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1292 (9th Cir.1982). Because consent decrees are considered final judgments, see Stone v. City and County of San Francisco, 968 F.2d 850, 854(9th Cir.1992), we have jurisdiction to review the claims raised in the motion to vacate the consent decrees pursuant to 28 U.S.C. § 1291. We recognize that, in the context of structural litigation, allowing parties to appeal from the denial of motions to vacate consent decrees can create unfortunate incentives. Recalcitrant defendants may file motions to vacate simply to delay the implementation of the decrees in the district court. Many aspects of our judicial system are open to such abuse. However, courts have the appropriate tools to remedy bad faith appeals. In particular, the awarding of attorneys’ fees and sanctions can be an effective deterrent to prevent significant abuse. Cf. Hutto v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (noting that the awarding of attorneys’ fees can vindicate the district court’s authority over a recalcitrant litigant). We must address one additional issue regarding our appellate jurisdiction. Besides the finality issue and Eleventh Amendment immunity claim raised in the motion to vacate, the defendants also seek to appeal what they describe as an expansion of the plaintiff class by the district court. The defendants refer to a portion of the district court’s order denying the plaintiffs’ motion for contempt, in which the district court interpreted a disputed provision of" }, { "docid": "22155622", "title": "", "text": "obligated to do under the terms of the Policy. Zurich requested the district court to grant relief under Fed.R.Civ.P. 60(b); give it an extension of time to appeal from the district court’s order; stay the district court’s order on summary judgment pending appeal; and issue an order compelling Matrix to produce evidence that it had paid the premiums. A. Rule 60(b) Relief Zurich filed a request for relief under Rule 60(b)(2),(3) and (6), which provide: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment ... was entered or taken. The savings clause to Rule 60(b) further provides “[tjhis rule does not limit the power of a court to entertain an independent action to ... set aside a judgment for fraud upon the court.” This Court reviews a district court’s denial of a Rule 60(b) motion for abuse of discretion. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.2000). Rule 60(b) relief “is extraordinary and may only be granted in exceptional circumstances.” Id. “Parties seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for an appeal.” Cummings v. General Motors Corp., 365 F.3d 944, 955 (10th Cir.2004). “Accordingly, our review is meaningfully narrower than review of the merits of a direct appeal.” Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir.2000) (internal quotation omitted). “Given the lower court’s discretion, the district court’s ruling is only reviewed to determine if a definite, clear or unmistakable error occurred below.” Cummings," }, { "docid": "2485260", "title": "", "text": "believable than Ortiz’s sworn statement. The defendants did not appeal from that order. In August and September 1997, the defendants attempted once again to have the default judgments set aside. They filed a motion under Rule 55(c) to set aside the default judgment in the freight case because Sea-Land had failed to provide notice of its application for a default judgment. Cerámica Europa Hato Rey, Inc. also filed motions under Rule 60(b)(4) in both cases, arguing once again that it had not been properly served because Ortiz was not its resident agent. The district court denied both the Rule 55(c) motion and the Rule 60(b)(4) motions on various grounds, and this appeal ensued. We address first the denial of the defendants’ motion under Rule 55(c). District courts enjoy broad discretion in deciding motions to set aside a judgment under this rule, see United States v. One Urban Lot Located at 1 Street A-1, Valparaiso, Bayamon, Puerto Rico, 885 F.2d 994, 997 (1st Cir.1989), and we review such rulings only for abuse of discretion, see Key Bank of Maine v. Tablecloth Textile Co., 74 F.3d 349, 352 (1st Cir.1996). We find no abuse of discretion here. The district court acknowledged that the defendants did not receive the notice required by Rule - 55(b)(2), but concluded that there was nonetheless no “good cause” to set aside the judgment under Rule 55(c). The purpose of the notice requirement in Rule 55(b)(2) is to permit a party to show cause for its failure to timely appear. Since the defendants had already tried, and failed, to effectively explain their failure to timely appear in their earlier motion to set aside the judgment, it would have been senseless for the court to vacate the default judgment in order to give the defendants yet another opportunity. The court’s refusal to engage in such a fruitless exercise can hardly be considered an abuse of discretion. Our review of the denial of the Rule 60(b)(4) motions proceeds along slightly different lines. Normally the decision to grant or deny a Rule 60(b) motion lies within the discretion of the district" }, { "docid": "22124885", "title": "", "text": "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. The district court, without mentioning the Pioneer/Briones test, denied the motion after considering only facts relating to the reason for Bateman’s delay — the third Pioneer/Briones factor. Id. at 1224. We concluded that the district court had failed to engage in the equitable analysis mandated by Pioneer and Briones, and, by ignoring three of the four Pioneer/Briones factors, had abused its discretion in denying Bateman’s Rule 60(b) motion. Id.; see also Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir.2009) (“We conclude that the district court did not identify the Pioneer-Briones standard or correctly conduct the Pioneer-Briones analysis and that this was an abuse of discretion.”). In Pincay, we held that courts engaged in balancing the Pioneer/Briones factors may not apply per se rules. Pincay, 389 F.3d at 855 (“We now hold that per se rules are not consistent with Pioneer.”). Defendants, who had filed their notice of appeal twenty-four days late, asserted that their tardy filing resulted from a calendaring mistake caused by attorneys and paralegals misapplying a clear legal rule. See id." }, { "docid": "11186275", "title": "", "text": "be set aside for excusable neglect pursuant to Rule 60(b)(1) and (b)(6), see Fed. R.Civ.P. 60(b)(1), (6) (“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... [or] (6) any other reason justifying relief from the operation of the judgment.”). Notably, Valdez did not challenge personal jurisdiction or sufficiency of service of process under Rule 60(b)(4). The bankruptcy court conducted a hearing on January 28, 2001 affording Valdez the opportunity to appear and be heard, but Valdez did not appear. The court concluded that Valdez and WorldStar failed to present sufficient evidence to satisfy their burden to set aside the final default judgment. Valdez and WorldStar timely filed Notices of Appeal with the district court and again argued that the final default judgment should be set aside for excusable neglect pursuant to Rule 60(b)(1). They also raised for the first time the claim that final default judgment should be set aside as void for lack of proper service of process pursuant to Rule 60(b)(4), see Fed.R.Civ.P. 60(b)(4) (“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void”). Soon thereafter, the district court concluded that Valdez had not met his burden of demonstrating that the bankruptcy court abused its discretion and affirmed the bankruptcy court’s decision. On appeal, Valdez reprises the same arguments he presented to the district court: that Valdez has demonstrated excusable neglect pursuant to Rule 60(b)(1); and that the final default judgment entered against him is void for lack of proper service of process pursuant to Rule 60(b)(4). II. We will reverse the lower court’s denial of a motion to set aside a default judgment only for abuse of discretion, see Fla. Physician’s Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir.1993) (citing Gibbs v. Air Canada, 810 F.2d 1529, 1537" }, { "docid": "23441534", "title": "", "text": "two passengers, neither of whom were included as parties in Pena’s suit. In addition, the court awarded Pena $10,000 exemplary damages for Seguros’ bad faith, plus court costs and interest on the judgment. Seguros moved to vacate the default judgment under Fed.R.Civ.P. 60(b), on February 16,1983, and the district court denied the motion. The court entered its findings on April 4, 1983, and at that time set aside $4,000 of the award of compensatory damages, thereby disallowing Pena’s recovery for bodily injury to his two passengers, which was not properly recoverable under the policy. Seguros filed a timely notice of appeal. II. DISCUSSION We must resolve two issues in this appeal: (1) Whether the district court abused its discretion by denying Seguros’ motion to vacate the default judgment; and (2) Whether this appeal is frivolous thereby entitling Pena to attorneys’ fees. A. Standard of Review We review the district court’s grant or denial of a motion to vacate a judgment under Rule 60(b) for an abuse of discretion, Plotkin v. Pacific Telephone & Telegraph Co., 688 F.2d 1291, 1292 (9th Cir.1982), and we will reverse a ruling on such motions under Fed.R.Civ.P. 60(b) “only upon a clear showing of abuse of discretion.” Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 685 F.2d 1065,1071 (9th Cir.1982) (emphasis added); affirmed in relevant part, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). B. Policy Considerations While a district judge has discretion to grant or deny a Rule 60(b) motion to vacate a default judgment, that discretion is limited by two important policy considerations. First, Rule 60(b) is remedial in nature and therefore must be liberally applied. See Patapoff v. Vollstedt’s, Inc., 267 F.2d 863, 865 (9th Cir.1959). Second, default judgments are generally disfavored. Whenever it is reasonably possible, cases should be decided upon their merits. Id. As a consequence of these two policies, “ ‘[wjhere timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may" }, { "docid": "15010897", "title": "", "text": "379 (9th Cir.1997) (per curiam), this Circuit held that the equitable test for “excusable neglect” set forth in Pioneer had equal force and application in the Rule 60(b) context. Id. at 381-82, 113 S.Ct. 1489 (overturning the per se rule that “ignorance of court rules does not constitute excusable neglect, even if the litigant appeared pro se ”). In Briones, a former employee brought a pro se discrimination action. The district court dismissed the action after the employee failed to respond to the defendant’s motion to dismiss, and then denied the employee’s Rule 60(b) motion to set aside the judgment. This Cir cuit vacated the district court’s order, holding that its application of the per se rule and its failure to apply Pioneer's equitable factors constituted an abuse of discretion. Id. at 382, 113 S.Ct. 1489 (remanding the case for further proceedings to determine whether the employee’s neglect was excusable). In Briones, this Circuit acknowledged the underlying tension, which presently exists between the cases cited in the District Court opinion, and the holdings of Pioneer and its progeny. The court stated that, although this Circuit seemed to require denial of a Rule 60(b) motion seeking relief from a failure to comply with court rules, this type of “per se rule cannot exist after Pioneer.” Id. Thus, the court recognized the possibility that failure to follow court rules could constitute “excusable neglect” and adopted the equitable analysis set forth in Pioneer. Following Briones, this Circuit held that the district court abused its discretion when it failed to apply the equitable test of Pioneer and Briones in determining whether an attorney’s failure to comply with a filing deadline constituted “excusable neglect.” Bateman v. United States Postal Serv., 231 F.3d 1220, 1222 (9th Cir.2000). In Bateman, the district court denied the plaintiffs Rule 60(b) motion after the plaintiffs attorney failed to respond to the defendant’s summary judgment motion. Id. at 1223. On appeal, this Circuit reversed and remanded to the district court with instructions to grant the Rule 60(b)(1) motion. Id. at 1225. In applying the Pioneer factors, the panel determined that, although" }, { "docid": "8394226", "title": "", "text": "Warfield does not alter this standard, since that case relied on a Rule 41(a)(1)© voluntary dismissal with prejudice to assess the Rule 60 motion for an abuse of discretion. 267 F.3d at 541-42. Because entry into a consent judgment is not analogous to a dismissal with prejudice under Rule 41, we review Northridge’s Rule 60(b)(4) challenge de novo. Id.; see also Gen. Star Nat’l Ins. Co., 289 F.3d at 437. 2. Merits Northridge argues that the consent decree is void because it is invalid under RLUIPA. But in its eagerness to proceed to the merits of its RLUIPA argument, Northridge overlooks the Supreme Court’s recent decision in United Student Aid Funds, Inc. v. Espinosa, — U.S. -, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). In that opinion, the Court explained that “[a] void judgment is a legal nullity.” Id. at 1377 (citing Black’s Law Dictionary 1822 (3d ed.1933)); see also Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 515 (6th Cir.2001) (Batchelder, J., concurring) (“A void judgment is one which, from its inception, was a complete nullity and without legal effect.” (quoting Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1972))). “ ‘A judgment is not void ... simply because it is or may have been erroneous,’ ” Espinosa, 130 S.Ct. at 1377 (quoting Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir.1995); 12 J. Moore et al., Moore’s Federal Practice § 60.44[l][a], at 60-150 to 60-151 (3d ed.2007)), and “a motion under Rule 60(b)(4) is not a substitute for a timely appeal,” id. Otherwise, “Rule 60(b)(4)’s exception to finality would swallow the rule.” Id. The Court then held that “Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.” Id. (emphasis added); see also Antoine, 66 F.3d at 108 (“A judgment is void under [Rule] 60(b)(4) if the court that rendered it lacked jurisdiction over the subject matter, or of the parties," }, { "docid": "22284962", "title": "", "text": "be used as a substitute for an appeal. Benny v. Pipes, 799 F.2d 489, 494 (9th Cir.1986), as amended, 807 F.2d 1514 (9th Cir.1987), petition for cert, filed (June 9, 1987). McCarthy’s contention regarding the exclusion of the affidavit is nothing more than dissatisfaction with a ruling of the court. As such, it would be appropriate for appellate review as opposed to Rule 60(b) relief. See Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.1982) (legal error alone does not warrant Rule 60(b) relief). Moreover, Rule 60(b)(2) addresses “newly discovered evidence which by due diligence could not have been discovered____” McCarthy’s motion dealt with evidence that had been in existence for years. He gave no explanation of why it had not been discovered earlier. We find no abuse of discretion in the court’s denial of the 60(b) motion. 6. Sanctions The government defendants seek attorney’s fees on appeal. We may award attorney’s fees and single or double costs to the prevailing party when an appeal is frivolous. See Fed.R.App.P. 38; 28 U.S.C. §§ 1912, 1927; Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.1985). Title 42 U.S.C. § 1988 also allows an award of attorney fees to prevailing defendants in an action brought under 42 U.S.C. § 1983 when the action is groundless, without foundation, frivolous, or unreasonable. Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). An appeal is frivolous when the result is obvious and the arguments on appeal wholly lack merit. Grimes v. Commissioner, 806 F.2d 1451 (9th Cir.1986). An appeal that lacks merit is not necessarily frivolous. Id. at 1454. Not all of the issues raised by McCarthy were completely without substance. We reject the request for sanctions. AFFIRMED. . We have jurisdiction to consider an appeal from the June 17 judgment because McCarthy’s timely Rule 59(e) motion tolled the time period for filing a notice of appeal. Fed.R.App.P. 4(a)(4); Beaudry. Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 753 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986);" }, { "docid": "2356455", "title": "", "text": "PER CURIAM: Appellant’s notice of appeal was filed six days after entry of the order denying appellant’s motion to set aside the default judgment, but 63 days after entry of the default judgment itself. In a civil case in which the United States is a party, the notice of appeal must be filed within 60 days of judgment unless the period is tolled by the filing of an appropriate motion under Federal Rules of Civil Procedure 50(b), 52(b), or 59. Fed.R.App.P. 4(a). Appellant’s motion to vacate judgment pursuant to Rule 60(b) did not toll the 60-day period. The appeal was therefore untimely as to the underlying default judgment. The only question open to review is whether the district court abused its discretion in denying appellant’s Rule 60(b) motion. Browder v. Director, Department of Corrections, 434 U.S. 257, 263, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978). “An order denying relief under Rule 60(b) is an appealable order, but the appeal brings up only the correctness of the order itself. It does not permit the appellant to attack the underlying judgment for error that could have been complained of on direct appeal. Moreover, the denial of a motion to vacate will be reversed only upon a clear showing of an abuse of discretion . ” (citations omitted). Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 (2d Cir. 1976). See, e. g., Browder v. Director, Department of Corrections, supra; Walker v. Mathews, 546 F.2d 814, 818 (9th Cir. 1976; Pagan v. American Airlines, Inc., 534 F.2d 990, 992-93 (1st Cir. 1976); Burnside v. Eastern Airlines, Inc., 519 F.2d 1127, 1128 (5th Cir. 1975). “[I]n reviewing a lower court’s denial of a motion under Rule 60(b), [the appellate] function is not to determine whether the court was substantively correct in entering the judgment from which relief is sought but is limited to deciding whether the judge abused his discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown . . .” Brennan v. Midwestern United Life Insurance Co., 450 F.2d 999," }, { "docid": "22776585", "title": "", "text": "based upon, respectively, mistake, fraud, and “any other reason justifying relief.” The district -court denied Latshaw’s requested relief. This appeal followed. II. Discussion We review the denial of Rule 60(b) motions for an abuse of discretion. See Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir.1989). Under this standard, we can reverse only if a district court “does not apply the correct law, rests its decision on a clearly erroneous finding of a material fact, or applies the correct legal standard in a manner that results in an abuse of discretion.” Engleson v. Burlington Northern Railroad Co., 972 F.2d 1038, 1043 (9th Cir.1992). A. Rule 60(b)(1) Rule 60(b)(1) provides, “On motion ... the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect.” Latshaw argues that she is entitled to relief under subsection (b)(1) because, but for two mistaken understandings on her part, she would not have signed the acceptance. These alleged “mistakes,” both purportedly originating from Nygaard, were Latshaw’s erroneous beliefs (1) that she might be liable for defendants’ attorneys’ fees if she did not sign the offer of judgment, and (2) that both of her attorneys intended to resign. The district court denied relief, noting that Latshaw’s “decision to execute the acceptance, regardless of whether that decision was founded upon bad advice or misinformation, created a binding contract,” and that Rule 60(b)(1) relief is unavailable to parties who simply misunderstand the legal consequences of their deliberate acts. Our court has not yet determined whether such attorney error can provide grounds to vacate a judgment under the mistake ground of Rule 60(b)(1). We have, however, declined similar requests for relief put forth as “excusable neglect,” which is another ground to set aside a judgment under subsection (b)(1). See Casey v. Albertson’s, Inc., 362 F.3d 1254, 1260 (9th Cir.2004) (“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).”); Engleson, 972 F.2d at" }, { "docid": "23080776", "title": "", "text": "This appeal followed. DISCUSSION A. Standard of Review Federal Rule of Civil Procedure 60(b) governs motions for relief from a final judgment or order and provides six independent grounds for relief. See also Fed.R.Civ.P. 55(c) (providing that default judgments may be set aside in accordance with Rule 60(b)). Only one of these grounds, Rule 60(b)(4), is relevant on this appeal. Under subsection (b)(4), a district court may relieve a party from a final judgment if “the judgment is void.” Fed. R.Civ.P. 60(b)(4). “Whereas we generally review motions pursuant to the provisions of Rule 60(b) for abuse of discretion, we review de novo a district court’s denial of a Rule 60(b)(4) motion.” State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 178 (2d Cir.2004) (citing Central Vermont Public Serv. Corp. v. Herbert, 341 F.3d 186, 189 (2d Cir.2003)). In an earlier decision, our Court had applied an abuse of discretion standard in reviewing the denial of a motion to vacate a default judgment under various subsections of Rule 60(b), including subsection (b)(4). See Old Republic Ins. Co. v. Pacific Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir.2002). Old Republic cited SEC v. McNulty, 137 F.3d 732, 738 (2d Cir.1998), which had correctly applied an abuse of discretion standard to review of the denial of a motion to vacate a default judgment under subsections (b)(1) and (b)(6) of Rule 60. There was no claim in McNulty that the challenged judgment was void, under subsection (b)(4), for lack of jurisdiction. Reliance on McNulty in Old Republic, which challenged a judgment under subsection (b)(4) on the ground of lack of jurisdiction, was therefore ill-advised. We take this opportunity to reconfirm the holdings of State St. Bank and Central Vermont that the de novo standard of review is to be used for review of the denial of a motion to vacate a default judgment challenged, under subsection (b)(4), for lack of jurisdiction. “Under Rule 60(b)(4) a déferential standard of review is not appropriate because if the underlying judgment is void, it is a per se abuse of discretion" }, { "docid": "2485261", "title": "", "text": "Bank of Maine v. Tablecloth Textile Co., 74 F.3d 349, 352 (1st Cir.1996). We find no abuse of discretion here. The district court acknowledged that the defendants did not receive the notice required by Rule - 55(b)(2), but concluded that there was nonetheless no “good cause” to set aside the judgment under Rule 55(c). The purpose of the notice requirement in Rule 55(b)(2) is to permit a party to show cause for its failure to timely appear. Since the defendants had already tried, and failed, to effectively explain their failure to timely appear in their earlier motion to set aside the judgment, it would have been senseless for the court to vacate the default judgment in order to give the defendants yet another opportunity. The court’s refusal to engage in such a fruitless exercise can hardly be considered an abuse of discretion. Our review of the denial of the Rule 60(b)(4) motions proceeds along slightly different lines. Normally the decision to grant or deny a Rule 60(b) motion lies within the discretion of the district court, and review is for abuse of discretion only. See Cotto v. United States, 993 F.2d 274, 277 (1st Cir.1993). However, the First Circuit has held that the district court does not have discretion to deny a Rule 60(b)(4) motion if the challenged judgment was void for lack of personal jurisdiction. See Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir.1988) (“If the judgment is void, the district court has no discretion but to set aside the entry of default judgment.”). This suggests that denial of such a motion should be given de novo review. Although the First Circuit has not expressly adopted this standard of review for the denial of Rule 60(b)(4) motions, a number of other circuits have. See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 591,-L.Ed.2d-, 67 U.S.L.W. 3271 (1998) (No. 98-571) (adopting de novo standard); Wilmer v. Board of County Comm’rs, 69 F.3d 406, 409 (10th Cir.1995) (same); United States v. Indoor Cultivation Equip. from High Tech Indoor Garden Supply, 55 F.3d" }, { "docid": "6647609", "title": "", "text": "21 hearing. When he complained about the judgment, the court suggested he file a motion or appeal. Morris asserted in his “Motion for Reconsideration,” filed September 26, that he was unaware that a complaint had been filed against him because he was having trouble receiving his mail at the address he concedes to have been correct. The court denied the motion, which it treated as seeking relief from the default judgment under Federal Rule of Civil Procedure 60(b). Morris appealed. JURISDICTION The bankruptcy court had jurisdiction via 28 U.S.C. §§ 1334 and 157(b). We have jurisdiction under 28 U.S.C. § 158(a)(1). ISSUE 1. Whether service of process on defendant was effective to establish personal jurisdiction. 2. Whether relief from default judgment was warranted under Federal Rule of Civil Procedure 60(b)(1). STANDARD OF REVIEW Whether a judgment is void for lack of personal jurisdiction is reviewed de novo. Elec. Specialty Co. v. Road & Ranch Supply, Inc., 967 F.2d 309, 311 (9th Cir.1992). Questions of relief under Federal Rule of Civil Procedure 60(b)(1) from a default judgment are reviewed for abuse of discretion. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir.2000); Determan v. Sandoval (In re Sandoval), 186 B.R. 490, 493 (9th. Cir. BAP 1995). DISCUSSION The bankruptcy court was presented with a pro se litigant’s generic “motion for reconsideration” that did not specifically invoke any of the several rules of procedure upon which it might be based, which motion it construed as seeking relief from judgment under Federal Rule of Civil Procedure 60(b). This was an appropriate exercise of the court’s obligation to construe the rules to “secure the just, speedy, and inexpensive determination” of the matter. Fed. R. Bankr. P. 1001. Although the court dealt with the heart of the matter in a craftsman-like manner, Morris’ arguments in this appeal warrant a somewhat finer point on the pencil. Hence, we start by focusing on service of process before turning to the standards for relief from default judgment and for vacating default. I Morris says that he did not receive the summons and complaint that were served" }, { "docid": "22382364", "title": "", "text": "of Emeziem’s absence from the country or his office’s prior request to postpone the summary judgment process during his absence. Emeziem returned to San Francisco on Saturday, August 29, 1998, but did not contact the district court or the government for some 16 days to explain his absence. Emeziem seeks to excuse this lapse based on his recovery from jet lag and the time it took to sort through the mail that had accumulated while he was away. On September 3, 1998, the district court, unaware that Emeziem had ever left the country, issued an order vacating the hearing and granting summary judgment in favor of the Postal Service. Twelve days later, Emeziem wrote a letter to the court asking that it “rescind” the entry of summary judgment. He explained that he had been out of the country and was unaware that a motion for summary judgment had been filed. On September 29, 1998, the court issued an order denying Emeziem’s request because he had not filed a proper motion for relief under Rule 60(b). Emez-iem then filed a Rule 60(b) motion on November 5, which the district court denied on February 5, 1999. Emeziem timely appealed the denial on Bateman’s behalf. We have jurisdiction under 28 U.S.C. § 1291. II. STANDARD OF REVIEW We review for an abuse of discretion the district court’s denial of a Rule 60(b) motion. See Briones, 116 F.3d at 380. A district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. See United States v. Washington, 98 F.3d 1159, 1163 (9th Cir.1996). III. ANALYSIS Rule 60(b)(1) of Civil Procedure provides that a court may relieve a party or a party’s legal representative from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. As discussed above, the Supreme Court held in Pioneer that “excusable neglect” covers negligence on the part of counsel. It then said that the determination of whether neglect is excusable is an equitable one that depends on at least four factors:" }, { "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": "22597529", "title": "", "text": "either party at the following addresses.” This provision could not be clearer. As its title explicitly states, it is a notice provision, and not a venue provision as the Wilsons contend. Therefore, the district court did not base its decision to enjoin the Hawaii proceedings on an erroneous reading of the franchise agreement. IV The Wilsons next assert the district court erred in denying their Rule 60(b) motion for post-judgment relief. We review the denial of Rule 60(b) motion for an abuse of discretion. Community Dental Services v. Tani, 282 F.3d 1164, 1167 n. 7 (9th Cir.2002); Bateman v. Unit ed States Postal Service, 231 F.3d 1220, 1223 (9th Cir.2000). The Wilsons based their request for post-judgment relief on the order of clarification issued by the Hawaii state court on April 30, 2001. That order found the “Louisiana Arbitration Award is void and vacated, effective as of the date of the filing of this Court’s previous order, June 27, 2000.” The Hawaii state court further found that the district court “has no subject matter jurisdiction over these proceedings.” The Wilsons argue that because the arbitration award was void and vacated, so too was the federal district court’s judgment entered on that award, and they were entitled to relief pursuant to Federal Rule of Civil Procedure 60(b)(4) and 60(b)(5). This argument begs the question whether a state court can void a federal court decree nunc pro tunc. The well-established principle is to the contrary, for “[sítate courts have no power to void federal court decrees,” and “[a] federal court may enjoin such impermissible collateral attacks on federal judgments.” Western Systems v. Ulloa, 958 F.2d 864, 868 (9th Cir.1992) (state has no power to declare federal court order “null and void”); Williams Natural Gas Co. v. Oklahoma City, 890 F.2d 255, 264 (10th Cir.1989) (finding error not to enjoin collateral attack by state court on the validity of federal judgment). If that were not enough, the motion was based on an order the Wilsons were properly enjoined from pursuing in the first place. The district court did not abuse its discretion in" }, { "docid": "11186284", "title": "", "text": "delay. Moreover, as we’ve noted, Valdez did not even appear at the bankruptcy court’s hearing on his motion to set aside the final default judgment. Instead, counsel for Valdez submitted an affidavit from Valdez that at most says that he just learned of the lawsuit on November 11, 2000. Nothing in Valdez’s brief affidavit provides any basis,- let alone a sufficient one, for finding an abuse of discretion. Accordingly, we affirm the bankruptcy court’s denial of Valdez’s Rule 60(b)(1) motion to set aside the final default judgment. B. To the extent Valdez raises the additional claim that final judgment is void for lack of proper service of process under Fed.R.CivJP. 60(b)(4) (“Rule 60(b)(4)”), because Valdez did not present this issue in his Rule 60(b) motion to the bankruptcy court, sitting as a trial court, he waived it and we will not address it on appeal. Federal Rule of Bankruptcy Procedure 9024, which incorporates Rule 60(b)(4), permits a party to seek relief from a void judgment or order. See Fed.R.Civ.P. 60(b)(4) (“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void”). The burden of proof in a Rule 60(b)(4) motion rests with the defendant. See Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 154 (5th Cir.1974). Although we review a district court’s Rule 60(b)(4) motion for abuse of discretion, insufficient service of process under Rule 60(b)(4) implicates personal jurisdiction and due process concerns. Generally, where service of process is insufficient, the court has no power to render judgment and the judgment is void. See Varnes v. Local 91, Glass Bottle Blowers Ass’n, 674 F.2d 1365, 1368 (11th Cir.1982) (finding a judgment void under Rule 60(b)(4) where the defendant was not properly served); see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (“An elementary and fundamental requirement of due process in any proceeding ... accorded finality is notice reasonably calculated," } ]

[ { "docid": "22376199", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: In accordance with his negotiated pleas, appellant was convicted by a general court-martial of various drug offenses and sentenced to a dishonorable discharge, confinement for 10 years, total forfeitures, and reduction to the grade of E-l. The convening authority reduced the period of confinement to 5 years but otherwise approved these results. The Court of Military Review affirmed modified findings and the approved sentence. Before the Court of Military Review, appellate defense counsel moved to file 25 documents for consideration by the court on the issue of sentence appropriateness. The documents consisted of letters recommending reduction of the period of confinement. All but two were written by prison officials. Noting that the documents were in the nature of clemency materials, the Court of Military Review denied the motion to file, citing United States v. Castleman, 10 M.J. 750 (A.F.C.M.R.), pet. denied, 12 M.J. 14 (1981), as authority for its action. This Court specified the issue of whether the Air Force decision in Castleman had been subsequently overruled by United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). I In United States v. Castleman, supra, the Court of Military Review held that, in considering an issue of sentence appropriateness, the Court was restricted to matters contained in the “entire record”— which “encompasse[d] the transcript, the documentary exhibits, and the allied papers,” as well as any appellate briefs, including those submitted by trial defense counsel pursuant to Article 38(c), Uniform Code of Military Justice, 10 USC § 838(c). The rule announced in Castleman was based on a long line of earlier cases decided by this Court. See, e.g., United States v. Fagnan, 12 U.S.C.M.A. 192, 30 C.M.R. 192 (1961); United States v. Lanford, 6 U.S.C.M.A. 371, 20 C.M.R. 87 (1955); United States v. Simmons, 2 U.S.C.M.A. 105, 6 C.M.R. 105 (1952). Indeed, in Fagnan one of the documents which we held that the then-Board of Review had properly declined to consider was a report on the accused’s conduct while in post-trial confinement. Castleman and its predecessors relied on a distinction between review of sentence appropriateness" } ]

[ { "docid": "14920804", "title": "", "text": "enunciated by our superior court in United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002) and United States v. Sales, 22 M.J. 305 (C.M.A.1986). For errors of a constitutional magnitude, we must be persuaded beyond a reasonable doubt that our sentence reassessment has rendered the constitutional error harmless. United States v. Boone, 49 M.J. 187, 195 (C.A.A.F.1998). In ruling on the multiplicity issue at trial, the military judge stated his findings were in the alternative and entered for purposes of exigencies of proof. See R.C.M. 907(b)(3)(B) and R.C.M. 307(c)(4), Discussion. He went on to note that he considered the charges multiplicious for sentencing and thus determined the maximum confinement was 10 years—the maximum authorized confinement for involuntary manslaughter (as compared to 7 years for maiming). In sentencing the appellant to a dishonorable discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to the grade of E-l, the military judge noted for purposes of appellate review that the court's sentence would have been “exactly the same” for either offense. Consequently, based upon the military judge’s clear statement of intent, we are satisfied beyond a reasonable doubt that the multiplicious charge had no effect on his determination of an appropriate sentence. The approved findings, as conditionally modified, and the sentence are correct in law and fact and no error prejudicial to the substantial rights of the appellant occurred. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.2000). Accordingly, the conditionally approved findings and the approved sentence are AFFIRMED. . At common law, an accused could not be convicted of murder unless the victim's death occurred within a year and a day of the injury. This common law rule was omitted from military practice in 1951 because it was considered \"archaic.” Legal and Legislative Basis, Manual for Courts-Martial, United States, 269 (1951). . For comparison purposes, we note that the MCM does not define or otherwise address the issue of brain death. However, in United States v. Gomez, 15 M.J. 954, 958-62 (A.C.M.R.1983), the Army Court of Military Review adopted a definition" }, { "docid": "3675152", "title": "", "text": "punishment authorized, we are confident the convening authority would have approved a punishment which includes a forfeiture of two-thirds of his pay per month from the time the sentence was adjudged until he took action on this case. Considering the evidence in the record, we find that a reassessed sentence of a dishonorable discharge, forfeiture of $933.00 pay per month for two months and reduction to the grade of E-l cures the error. We also find, after considering the appellant’s character, the nature and seriousness of the offense, and the entire record, that the reassessed sentence is appropriate. Sentence Severity Finally, the appellant argues a dishonorable discharge is too severe given the members sentenced him to no confinement. We review sentence appropriateness de novo. United States v. Baier, 60 M.J. 382, 383-84 (C.A.A.F.2005). We make such determinations in light of the character of the offender, the nature and seriousness of his offenses, and the entire record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982). Additionally, while we have a great deal of discretion in determining whether a particular sentence is appropriate, we are not authorized to engage in exercises of clemency. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.1999); United States v. Healy, 26 M.J. 394, 395-96 (C.M.A.1988). The appellant was convicted of orally and anally sodomizing a non-consenting victim, offenses considered amongst the most serious crimes recognized by society. We have given individualized consideration to this particular appellant, the nature and seriousness of the offenses, the appellant’s record of service, and all other matters contained in the record of trial. The approved sentence was clearly within the discretion of the convening authority and was appropriate in this case. Accordingly, we hold that the approved sentence is not inappropriately severe. Appellate Delay As this Court was finalizing its separate opinions in this case, the appellant filed a motion asserting that the delay in his case is unreasonable. We agree. The overall delay of more than 540 days between the time the case was docketed at the Air Force Court of Criminal Appeals and completion of review" }, { "docid": "1131447", "title": "", "text": "made an apparently uncorroborated admission to using cocaine. Furthermore, appellant failed to suggest the decision to prosecute was based on any impermissible discriminatory considerations. Assuming appellant’s assertion of error was not waived, he failed even to allege a valid claim of selective prosecution. III. Sentence Appropriateness Appellant submits that the sentence was “disproportionately harsh” because the targets of the investigation were not prosecuted and because he was merely acting as a conduit for the civilian employee to provide the marijuana to the undercover agent. He requests this Court reassess his sentence and find appropriate no greater sentence than a special court-martial could adjudge. In reviewing the appropriateness of a sentence, this court normally will not compare sentences in other cases. United States v. Olinger, 12 M.J. 458, 460 (C.M.A.1982). Courts are also reluctant to review decisions whether to prosecute. United States v. Hagen, 25 M.J. 78, 84 (C.M.A.1987), citing Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 1531, 84 L. Ed.2d 547 (1985). We do not find persuasive appellant’s argument that we should compare his sentence with the fate of individuals who were never charged or convicted of any offense. This Court has for many years acknowledged the seriousness and lack of tolerance of drug offenses in the military. United States v. Toro, 34 M.J. 506 (A.F.C.M.R.1991), aff'd, 37 M.J. 313 (C.M.A.1993); United States v. Branoff, 34 M.J. 612 (A.F.C.M.R.1992), pet. granted, 37 M.J. 61 (C.M.A.1992); United States v. Holt, 28 M.J. 835 (A.F.C.M.R.1989); United States v. Baker, 2 M.J. 360 (A.F.C.M.R.1977), aff'd, 4 M.J. 89 (C.M.A.1977). Appellant, a noncommissioned officer with over 5 years of military service, could not have misunderstood the serious nature of his drug offenses, especially distributing marijuana on a military installation. Appellant entered a pretrial agreement with the convening authority which limited the period of confinement to 4 years. Such an agreement is some indication that appellant thought confinement up to 4 years was appropriate for his offenses. United States v. Hendon, 6 M.J. 171, 174-75 (C.M.A.1979); cf. United States v. Kinman, 25 M.J. 99, 101, n. 4 (C.M.A.1987). We have independently" }, { "docid": "3675150", "title": "", "text": "difficult for the appellant, the military judge did not abuse his discretion by precluding trial defense counsel from discussing the matter during argument. Improper Convening Authority Action The appellant was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and reduction to the grade of E-l. The convening authority approved the sentence as adjudged. The appellant asserts the convening authority’s action violated R.C.M. 1107(d)(2). Specifically, the Discussion to R.C.M. 1107(d)(2) states, “When an accused is not serving confinement, the accused should not be deprived of more than two-thirds pay for any month as a result of one or more sentences by court-martial and other stoppages or involuntary deductions, unless requested by the accused.” The government counsel concedes that by application of the Discussion in R.C.M. 1107(d)(2), and the holding in United States v. Warner, 25 M.J. 64 (C.M.A.1987), forfeiture should have been limited to two-thirds of the appellant’s pay. We agree. We find the approved sentence materially prejudiced the substantial rights of the appellant because it exceeds the maximum authorized. See Article 59(a), UCMJ, 10 U.S.C. § 859(a). We now analyze the case to determine whether we can reassess the sentence. United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002). Before reassessing a sentence, this Court must be confident “that, absent any error, the sentence adjudged would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.1986). A “dramatic change in the ‘penalty landscape’ ” gravitates away from our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.2003). Ultimately, a sentence can be reassessed only if we “confidently can discern the extent of the error’s effect on the sentencing authority’s decision.” United States v. Reed, 33 M.J. 98, 99 (C.M.A.1991). In United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.2000), our superior court decided that if the appellate court “cannot determine that the sentence would have been at least of a certain magnitude,” it must order a rehearing. See also United States v. Poole, 26 M.J. 272, 274 (C.M.A.1988). Although the approved forfeitures exceed the maximum" }, { "docid": "7479632", "title": "", "text": "to violation of Article 121 are set aside. Only so much of the sentence as provides for a bad-conduct discharge, confinement for 1 year, forfeiture of $400 of his pay per month for 12 months, and reduction to E-l is affirmed. Having reassessed the sentence, we now consider the entire record, United States v. Healy, 26 M.J. 394 (C.M.A.1988), and we find the sentence as reassessed not inappropriate. Article 66(c), UCMJ, 10 U.S.C. § 866(c) (1988). Senior Judge LEONARD and Judge RIVES concur. . The crimes alleged are violations of Articles 107 and 121, UCMJ, 10 U.S.C. §§ 907 and 921 (1988), respectively. Sergeant Bost was sentenced to be discharged from the service with a bad-conduct discharge, to be confined for 12 months, to forfeit $500 pay per month for 12 months, and to be reduced to E-l. The convening authority approved the sentence as adjudged. . Article 121 combines several common law theft offenses. In United States v. Dean, 33 M.J. 505 (A.F.C.M.R. 1991), pet. denied, 32 M.J. 308 (C.M.A.1991), we explored the differences that can arise in the three theories in such cases, wrongful taking, wrongful withholding, and obtaining by false pretenses. . See also United States v. Godeau, 44 C.M.R. 438 (A.C.M.R.1971); United States v. Griffin, 41 C.M.R. 440 (A.C.M.R.1969); United States v. Scoles, 32 C.M.R. 614 (A.B.R.1962), reversed on other grounds, 14 U.S.C.M.A. 14, 32 C.M.R. 226 (1953); United States v. Grant, 26 C.M.R. 692 (A.B.R.1958); United States v. Jones, 15 C.M.R. 591 (C.G.B.R.1954); United States v. Wilson, 11 C.M.R. 609 (N.B.R.1953). . See, e.g., United States v. Evans, 34 M.J. 1051 (A.F.C.M.R.1992) (larceny specification defective in that it alleged owner of BAQ to be spouse, not United States); United States v. Roberts, 33 M.J. 819 (N.M.C.M.R.1991) (accused otherwise entitled to BAQ not guilty of wrongful appropriation of it when he failed to spend it to support spouse); United States v. Lemieux, 25 C.M.R. 516 (A.B.R.1957), remanded, 10 U.S.C.M.A. 10, 27 C.M.R. 84 (1958) (one who contributes his own pay to an allotment to another cannot be convicted of having stolen that part of the checks" }, { "docid": "14285859", "title": "", "text": "by an accused may be preferred at the same time. Each specification shall state only one offense.” (Emphasis added.) Consequently, the inclusion of more than one offense in Specification 2 of Charge II violated the rule and resulted in error. United States v. Poole, 24 M.J. 539, 541 (A.C.M.R.), petition granted, 25 M.J. 167 (C.M.A.1987). Trial defense counsel, however, did not object at trial and, by failing to object, waived the error. Poole, 24 M.J. at 541; R.C.M. 905(e). Moreover, a duplicitous specification is only significant with regard to the maximum sentence which may be imposed. Poole, 24 M.J. at 541. Because the military judge advised appellant that the maximum confinement for all offenses was twelve years, which was the lowest possible confinement imposable, and because appellant adhered to his pretrial agreement following further inquiry from the judge, his pleas of guilty were not induced by any misunderstanding of the maximum possible confinement. See United States v. Frangoules, 1 M.J. 467 (C.M.A.1976). III. Sentence United States v. Warner, supra, held impermissible a sentence to forfeiture of all pay and allowances when confinement has not been approved. In Warner, the Court of Military Appeals reduced the forfeiture portion of the sentence to “forfeiture of two-thirds pay as E-l per month until the discharge is executed.” We will similarly reduce the sentence here, but will state the forfeitures as a specific dollar amount per month, as required by R.C.M. 1003(b)(2). IV. Conclusion The findings of guilty and only so much of the sentence as provides for a dishonorable discharge, reduction to the grade of Private El, and forfeiture of $438.00 pay per month until the discharge is executed are affirmed. Executed forfeitures in excess of $438.00 pay per month will be restored to appellant. . The maximum confinement was computed as follows: The judge held Charge I and its Specification (signing a false official record) multiplicious for sentence with Specification 3 of Charge II (unauthorized sale of military property of some value), and limited the maximum confinement to that applicable to the unauthorized sale, one year, rather than the five years authorized" }, { "docid": "7479631", "title": "", "text": "instead of dismissing one. He instructed that the maximum confinement that could be imposed was 5 years, the limit for either charge separately. The members sentenced Sergeant Bost to be discharged from the service with a bad-conduct discharge, to be confined for 1 year, to forfeit $500 of his pay per month for 12 months, and to be reduced to E-l. One is tempted to find no possibility of error affecting the sentence, but there remains the possibility that, within the 5-year limit, the members adjudged a more severe sentence than they would otherwise have adjudged because they based it in part on their findings of fact about the larceny. Meanwhile, unraveling the mystery of BAQ entitlements has taken so long in this case that Sergeant Bost has served his confinement. Accordingly, we will remedy the findings error by relief from the forfeitures adjudged at trial. So much of the findings as state the offense of false official statement in violation of Article 107 are affirmed. So much of the remaining findings as relate only to violation of Article 121 are set aside. Only so much of the sentence as provides for a bad-conduct discharge, confinement for 1 year, forfeiture of $400 of his pay per month for 12 months, and reduction to E-l is affirmed. Having reassessed the sentence, we now consider the entire record, United States v. Healy, 26 M.J. 394 (C.M.A.1988), and we find the sentence as reassessed not inappropriate. Article 66(c), UCMJ, 10 U.S.C. § 866(c) (1988). Senior Judge LEONARD and Judge RIVES concur. . The crimes alleged are violations of Articles 107 and 121, UCMJ, 10 U.S.C. §§ 907 and 921 (1988), respectively. Sergeant Bost was sentenced to be discharged from the service with a bad-conduct discharge, to be confined for 12 months, to forfeit $500 pay per month for 12 months, and to be reduced to E-l. The convening authority approved the sentence as adjudged. . Article 121 combines several common law theft offenses. In United States v. Dean, 33 M.J. 505 (A.F.C.M.R. 1991), pet. denied, 32 M.J. 308 (C.M.A.1991), we explored the differences" }, { "docid": "11383494", "title": "", "text": "not produced any evidence that would put the issue into controversy. The appellant could have properly raised the issue by, for example, providing a statement that he had not been served with a copy of the recom mendation. In the future, when the factual basis that could support an issue is a matter within an appellant’s knowledge, we will expect appellate counsel to investigate the matter before assigning the error. See United States v. Hilow, 32 M.J. 439, 445 n. 2 (C.M.A.1991) (Cox, J., dissenting). The appellant offers no support for his proposition that the staff judge advocate erred by not serving him with the addendum to the recommendation. There is no requirement to serve this addendum on the appellant, since it contains no “new matter.” R.C.M. 1106(f)(7); see United States v. Anderson, 25 M.J. 342 (C.M.A.1987); United States v. Narine, 14 M.J. 55 (C.M.A.1982). Appellate government counsel have submitted an affidavit from the convening authority’s staff judge advocate which satisfactorily explains that all defense submissions were provided to the convening authority for his consideration prior to taking action. See R.C.M. 1107(b). Having examined the record of trial, the assignment of errors, and the government’s reply, we have concluded that the findings and sentence are correct in law and fact, the sentence is appropriate, and no error prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and sentence are AFFIRMED. . The appellant was tried by special court-martial for larceny of money worth more than $100 and for conspiracy to commit larceny. Despite his pleas of not guilty, he was convicted of both charges by a court composed of officer members. The convening authority approved the adjudged sentence of a bad conduct discharge, confinement for 4 months, forfeiture of $250 pay per month for 4 months, and reduction to the grade of E-1. . Appellate government counsel have also provided us with a copy of the accused's receipt for the SJA’s recommendation, which makes it clear in any event that this appellant was properly served with a copy of the SJA’s recommendation." }, { "docid": "1076120", "title": "", "text": "with the entire record in determining sentence appropriateness in this case. See generally United States v. Snelling, 14 M.J. 267 (C.M.A.1982); United States v. Olinger, 12 M.J. 458 (C.M.A. 1982); United States v. Tucker, 29 M.J. 915 (A.C.M.R.1989), pet. denied, 31 M.J. 380 (C.M.A.1990). We agree that some sentence relief is appropriate and will reduce the approved sentence to confinement in addition to reassessing the sentence for the error noted above. We have reviewed the remaining assignments of error and the errors personally asserted by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. The findings of guilty are affirmed. Reassessing the sentence on the basis of the error noted and the entire record, the court affirms only so much of the sentence as provides for a dishonorable discharge, confinement for six years, forfeiture of all pay and allowances, and reduction to Private El. Senior Judge JOHNSON and Judge WERNER concur. . The appellant also asked this court to take judicial notice of the Article 13 litigation in five companion cases, including that of his partner in crime. We declined to do so; however, we did agree to take judicial notice of the sentence in the appellant’s partner’s case, but only for sentence appropriateness purposes. . He also asks for an additional thirty-seven days’ credit for \"restriction tantamount to confinement” and for the government’s failure to have a Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 305 [hereinafter R.C.M.] magistrate’s review of the pretrial restraint. Neither of these bases for credit were raised or litigated at trial. Since these issues were not raised at trial, we find that they were waived. R.C.M. 1001(b)(1); United States v. Kuczaj, 29 M.J. 604 (A.C.M.R.1989); United States v. Bryant, 21 M.J. 811 (A.C.M.R.1988); United States v. Snoberger, 26 M.J. 818 (A.C.M.R.1988), pet. denied, 29 M.J. 289 (C.M.A. 1989); United States v. Berry, 24 M.J. 555 (A.C.M.R.), pet. denied, 25 M.J. 193 (C.M.A. 1987); United States v. Ecoffey, 23 M.J. 629 (A.C.M.R.1986). . United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). ." }, { "docid": "12141082", "title": "", "text": "could qualify for the self-identification program because he or she would just be coming forward to escape a random urinalysis. The appellant’s statement to the first sergeant on 28 December, that he “needed help” with his drug problem qualified him for protection under the self-identification program so that the evidence obtained from him on that date is inadmissible. See AFR 30-2, 4-2(1). There is no question but the appellant used drugs after his entry into the Drug Abuse Control Rehabilitation Program. However, any disciplinary action under the UCMJ for drug abuse under these circumstances must be based “on independently derived evidence.” See AFR 30-2, 4-2b(3)(b). In this context we interpret the phrase “independently derived evidence” as that coming from a source other than the accused. See United States v. Littlehales, 19 M.J. 512 (A.F.C.M.R.1984); affd 22 M.J. 17 (C.M.A.1986); cert. denied 476 U.S. 1174, 106 S.Ct. 2901, 90 L.Ed.2d 987 (1986). We do not consider an accused’s statement admitting drug use or the results of a test of his urine to be “independently derived evidence” within the meaning of this term and under the facts of this case. For the reasons stated, Charge I and two specifications hereafter are set aside and dismissed. See generally United States v. Martinez, ACM 25681, 19 June 1987; pet. granted 26 M.J. 63 (C.M.A.1988) (Whether the military judge erred in admitting evidence derived from appellant’s efforts to obtain help in overcoming his cocaine addiction under the AFR 30-2 self-identification program). Reassessing the sentence on the basis of the error noted and the entire record, we find appropriate only so much thereof as provides for a bad conduct discharge, confinement for 18 months, and total forfeitures. The findings of guilty and the sentence, both as modified, are AFFIRMED. Senior Judge FORAY and Judge HOLTE concur. . The appellant entered a conditional guilty plea to two allegations of using cocaine during the periods 19-28 December 1987, and 25 January —3 February 1988. [Specifications 1 and 2, Charge I], Additionally, he unconditionally pleaded guilty to multiple allegations of forgery and larceny. See R.C.M. 910(a)(2); United States v." }, { "docid": "15275501", "title": "", "text": "for Courts-Martial, United States (1998 ed.); see United States v. Brooks, 49 M.J. 64, 68-69 (1998). After reviewing this petition and the entire record of trial, we find no newly discovered evidence or fraud on the court. The appellant merely wishes to relitigate the facts already before the court-martial or readily available to counsel prior to trial. Even if the appellant’s purported newly discovered evidence had been presented at trial, it would not “probably produce a substantially more favorable result for the accused.” R.C.M. 1210(f); Brooks, 49 M.J. at 70. We find no need to order a factfinding hearing under United States v. Ginn, supra. Accordingly, the appellant’s petition for a new trial is denied. Sentence Appropriateness Finally, the appellant contends that his sentence is inappropriately severe. The appellant raped a junior female Sailor in the barracks after intimidating her with a loaded firearm. Aggravating the offenses are his history of violence and his status as a non-commissioned officer. United States v. Thompson, 22 M.J. 40, 41 (C.M.A.1986). Having carefully reviewed the entire record, we find that the sentence is appropriate in all respects for these offenses and this offender. United States v. Healy, 26 M.J. 394 (C.M.A. 1988); United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982). CONCLUSION Accordingly, we affirm the findings and the sentence, as approved on review below. Senior Judge LEO and Judge NAUGLE concur. . I. A SENTENCE INCLUDING A DISHONORABLE DISCHARGE AND THIRTY YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE. II. WHETHER SGT KIRT SUFFERED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS TRIAL DEFENSE COUNSEL: (A) DID NOT CONTACT ANY OF THE SENTENCING WITNESSES NAMED BY SGT KIRT; AND (B) DID NOT CALL WITNESSES THAT COULD HAVE OVERCOME THE PROSECUTION’S THEORY OF THE CASE AND DID NOT EXAMINE THE PHYSICAL EVIDENCE THAT COULD HAVE REBUTTED PROSECUTION WITNESSES' TESTIMONY. III. TRIAL COUNSEL’S CROSS-EXAMINATION REGARDING APPELLANT’S PRESENCE AT TRIAL IMPROPERLY ATTACKED APPELLANT FOR EXERCISING HIS CONSTITUTIONAL RIGHTS. IV. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR RAPE WHERE THE COMPLAINANT COULD ONLY ACCOUNT FOR 20 MINUTES OF THE ALLEGED INCIDENT WHEN HER TESTIMONY MAKES IT" }, { "docid": "1076129", "title": "", "text": "separated in time from the alleged possession, see United States v. Farrar, 25 M.J. 856 (A.F.C.M.R. 1988), and the second test, which was contemporaneous with possession, showed evidence of tampering which, of course, radically undercuts its probative value. Given these facts, the military judge did not err in denying the discovery request. Ill The appellant’s final assignment of error is that his sentence is inappropriate. He argues that, in light of his unblemished prior record, a bad-conduct discharge is “much too severe.” The appellant, at the time of his offense, was a noncommissioned officer with over 3 years’ service, plus several additional years in the Air National Guard. He was well aware of his responsibilities as a noncommissioned officer and the seriousness of drug abuse in the military setting. After considering the facts and circumstances of the offense of which he was convicted and the entire record, we find his sentence to be appropriate. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Standifer, 31 M.J. 742 (A.F.C.M.R.1990); United States v. Medley, 30 M.J. 879 (A.F.C.M.R.1990); United States v. Holt, 28 M.J. 835 (A.F.C.M.R. 1989). The findings and the sentence are AFFIRMED. Judge CONNELLY concurs. . Although R.C.M. 910(a)(2) requires that the right being preserved by a conditional plea (i.e., the right to further review of a specified pretrial motion or motions) be in writing, no such document appears in this record. As discussed in the concurring opinion, we will nevertheless treat the conditional plea as properly entered. . 10 U.S.C. § 912a. . A \"bindle” is a small folded paper container, normally oblong, frequently used to conceal illicit drugs. . Such offensive use of negative urinalysis evidence would, if allowed, be reversible error. United States v. Arguello, 29 M.J. 198 (C.M.A. 1989). Even in rebuttal, the government cannot use evidence of specific nanogram levels which are below Department of Defense cutoff levels. United States v. Gray, 30 M.J. 231 (C.M.A.1990). PRATT, Senior Judge (concurring): I concur with the lead opinion in all respects, but take this opportunity to discuss a recurring problem with the inappropriate use of conditional" }, { "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": "1131448", "title": "", "text": "should compare his sentence with the fate of individuals who were never charged or convicted of any offense. This Court has for many years acknowledged the seriousness and lack of tolerance of drug offenses in the military. United States v. Toro, 34 M.J. 506 (A.F.C.M.R.1991), aff'd, 37 M.J. 313 (C.M.A.1993); United States v. Branoff, 34 M.J. 612 (A.F.C.M.R.1992), pet. granted, 37 M.J. 61 (C.M.A.1992); United States v. Holt, 28 M.J. 835 (A.F.C.M.R.1989); United States v. Baker, 2 M.J. 360 (A.F.C.M.R.1977), aff'd, 4 M.J. 89 (C.M.A.1977). Appellant, a noncommissioned officer with over 5 years of military service, could not have misunderstood the serious nature of his drug offenses, especially distributing marijuana on a military installation. Appellant entered a pretrial agreement with the convening authority which limited the period of confinement to 4 years. Such an agreement is some indication that appellant thought confinement up to 4 years was appropriate for his offenses. United States v. Hendon, 6 M.J. 171, 174-75 (C.M.A.1979); cf. United States v. Kinman, 25 M.J. 99, 101, n. 4 (C.M.A.1987). We have independently determined the appropriateness of the approved sentence by an individualized consideration of this particular appellant on the basis of the nature and seriousness of the offenses and appellant’s character and military service. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982). We are convinced the sentence is not inappropriate. The findings and sentence are correct in law and fact, and no error prejudicial to the substantial rights of appellant was committed. Articles 59(a), 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and approved sentence are AFFIRMED. Senior Judge JOHNSON and Judge HEIMBURG concur." }, { "docid": "1190829", "title": "", "text": "S.Ct. 2394, 110 L.Ed.2d 243 (1990); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Duga, supra; United States v. Flowers, 13 M.J. 571 (A.C.M.R.1982). III The appellant next maintains that her sentence is unduly severe. Her appellate counsel assert that she “is a first time offender and, aside from the circumstances that resulted in her conviction, she enjoyed an exemplary military record.” In fact, virtually from the time the appellant arrived at her first duty assignment following training, she engaged in a course of reprehensible conduct. Lieutenant Parrillo provided a false statement about her use of drugs; she distributed cocaine to an enlisted member of her organization; she used marijuana with an enlisted subordinate; she solicited an enlisted member of her unit to use cocaine; and she dishonorably engaged in sexual relations with enlisted members of her organization. Her approved sentence to a dismissal from the service, forfeiture of $2,000 pay per month for 18 months, and confinement for 18 months is entirely appropriate. Article 66(c), UCMJ, 10 U.S.C. § 866(c). IV During our initial review of this ease, we discovered that it was not clear from the record whether the convening authority had reviewed the clemency matters submitted by the appellant before he took action. The addendum to the staff judge advocate recommendation merely described the appellant’s clemency submissions, but did not indicate if the submissions were included with the addendum or informed the convening authority that he was required to consider the submissions before taking his action. A staff judge advocate’s recommendation or addendum should make it clear to the convening authority that he is required to consider matters submitted by an accused under R.C.M. 1105(b) or R.C.M. 1106(f)(4). United States v. Craig, 28 M.J. 321 (C.M.A.1989); United States v. Pelletier, 31 M.J. 501 (A.F.C.M.R.1990); United States v. Foy, 30 M.J. 664 (A.F.C.M.R.1990). The convening authority has a statutory duty to consider these matters personally. Article 60(c)(2), UCMJ, 10 U.S.C.A. § 860(c)(2). We ordered the government to show cause why the action of the convening authority was not premature. They provided us" }, { "docid": "14920803", "title": "", "text": "extent that the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity. Whalen v. United States, 445 U.S. 684, 695 n. 10, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). We therefore conclude Congress intended for the malum in se offense to be subsumed and incorporated in Article 119(a)(2), whenever a malum in se offense results in death. We now turn to fashioning an appropriate remedy. We note that military appellate courts have the inherent authority to order a conditional dismissal of a charge which becomes effective when direct review becomes final pursuant to Article 71(c), UCMJ, 10 U.S.C. § 871(c). Britton, 47 M.J. at 202-05 (Effron, J., concurring). Therefore, we conditionally dismiss the maiming charge and its specification subject to final review pursuant to Article 71(c), UCMJ, in order to allow the government to meet the exigencies of proof on the proximate cause issue through final appellate action. Rules for Courts-Martial (R.C.M.) 907(b)(3)(B). Having conditionally dismissed the maiming offense, we now reassess the sentence, adhering to the principles enunciated by our superior court in United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002) and United States v. Sales, 22 M.J. 305 (C.M.A.1986). For errors of a constitutional magnitude, we must be persuaded beyond a reasonable doubt that our sentence reassessment has rendered the constitutional error harmless. United States v. Boone, 49 M.J. 187, 195 (C.A.A.F.1998). In ruling on the multiplicity issue at trial, the military judge stated his findings were in the alternative and entered for purposes of exigencies of proof. See R.C.M. 907(b)(3)(B) and R.C.M. 307(c)(4), Discussion. He went on to note that he considered the charges multiplicious for sentencing and thus determined the maximum confinement was 10 years—the maximum authorized confinement for involuntary manslaughter (as compared to 7 years for maiming). In sentencing the appellant to a dishonorable discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to the grade of E-l, the military judge noted for purposes of appellate review that the court's sentence would have been “exactly the same” for either offense. Consequently, based upon" }, { "docid": "12280254", "title": "", "text": "pet. denied 23 M.J. 266 (C.M.A.1986); R.C.M. 1001(g). In order to constitute plain error, the error must be obvious and substantial and it must have had an unfair prejudicial impact on the members’ deliberations. United States v. Fisher, 21 M.J. 327 (C.M.A.1986). The error in sentencing argument in appellant’s case was obvious and substantial. Senior Judge Ferguson pointed out in Johnson that an accused has a fundamental right to plead not guilty and a plea of not guilty is simply an exercise of an absolute Constitutional protection and improper comment on this right is “intolerable.” 1 M.J. at 215; Cf. United States v. Chaves, 28 M.J. 691 (A.F.C.M.R.1988) (military judge’s instruction including lack of remorse as aggravating factor); United States v. Rogan, 19 M.J. 646 (A.F.C.M.R. 1984) (post-trial review recommending against rehabilitation because of failure to admit guilt). Appellant’s case was intensely litigated and involved two days of trial. At the time of his trial, he was a technical sergeant with over 16 years of excellent service with no prior disciplinary problems. Despite this record, appellant was sentenced to a bad conduct discharge, forfeiture of $466.00 pay per month for six months, and reduction to airman basic. Further, this sentence was imposed by a court consisting entirely of members with no prior court-martial experience. Allowing the court members to deliberate on sentence with an impression that they could consider appellant’s failure to admit guilt as evidence of lack of rehabilitation created a strong possibility of substantial prejudice on the consideration of an appropriate sentence. Since we cannot accurately determine what sentence may have been adjudged absent the prejudicial error, we set aside appellant’s sentence. United States v. Peoples, 29 M.J. 426 (C.M.A.1990). We have examined the record of trial, the assignments of error and the government’s reply. The findings of guilty are correct in law and fact and are affirmed. Having found error which materially prejudiced the substantial rights of the appellant, the sentence is set aside. A rehearing may be held. Senior Judge MURDOCK concurs. Judge RIVES did not participate. We commend the military judge for providing the court" }, { "docid": "12099049", "title": "", "text": "trying to plumb the convening authority’s rationale through post facto affidavits, are not likely to produce a meaningful remedy for the appellant. We choose, therefore, to apply both the Longhofer and the Moore remedies. ' We will review the objective facts extant at the time of the convening authority’s unexplained action to determine whether deferment should have been granted then. We will also consider whether the relief granted on appeal by this court is such that deferment would be appropriate now. Considering the R.C.M. 1101(c)(3) factors, we are convinced that deferment of confinement was not appropriate when the convening authority acted. We base our conclusion on: (1) the obvious deleterious effect on good order and discipline of deferring confinement for a soldier convicted of distributing drugs to other soldiers, (2) the appellant’s mendacity and overall reluctance to accept responsibility for his conduct, (3) the lengthy period of adjudged confinement, (4) the great strength of the evidence militating against relief on appeal, and (5) the imposition of a dishonorable discharge that virtually eliminates the possibility of a return to service for the appellant. Moreover, considering the findings of guilty and the substantial period of appropriate confinement affirmed by this court, we are satisfied that deferment of confinement is not warranted now. We have considered the remaining assertions of error, to include those raised personally by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them to be without merit. The findings of guilty are affirmed. After considering the entire record, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to Private El. Senior Judge WERNER and Judge LANE concur. . We note that the appellant enjoyed an alibi defense wherein his friends, one a “Soldier of the Year,” stretched the truth or peijured themselves for his benefit. Moreover, the appellant himself impeached the findings of guilty-by insisting on the truthfulness of his defense in an unsworn statement during sentencing. However, the appellant did not testify falsely under oath" }, { "docid": "7135686", "title": "", "text": "to object to this argument. Of late, we have reviewed several arguments in which trial counsel seeks to secure an appropriate sentence by showing the appellant menaced the Air Force because of his or her duty. An argument of this sort might seem logically available to prosecutors in every situation. Such an approach ignores a line of respectable precedent from this Court cautioning that — absent evidence an accused’s crimes in any way affected his duty — such argument is impermissible. See, e.g., United States v. Lewis, 7 M.J. 958 (A.F.C.M.R.1979) (flightline duty); United States v. Moore, 6 M.J. 661, pet. denied, 6 M.J. 199 (C.M.A.) (hospital corpsman); United States v. Collins, 3 M.J. 518, 520 (A.F.C.M.R.1977) aff'd. 6 M.J. 256 (C.M.A.) (security policeman). See also United States v. Smith, 28 M.J. 863, 864-865 (A.F.C.M.R.1989), pet. denied 28 M.J. 455 (C.M.A.); United States v. Thomaselli, 14 M.J. 726, 728 (A.F.C.M.R.1982); United States v. Miller, 12 M.J. 559 (A.F.C.M.R.1981), pet. denied, 13 M.J. 36 (C.M.A.1982). These viable precedents are not simply institutional nostalgia; we urge trial practitioners to be cautious in this area. Though we find technical error, we believe no relief is warranted. Failure to object to trial counsel’s argument normally triggers the doctrine of waiver and precludes a claim of error on appeal. R.C.M. 1001(g). In addition, inaction by defense counsel tends to indicate the minimal impact of a prosecutor’s remarks. Finally, the argument was made before a military judge sitting alone. See United States v. Moore, 6 M.J. 661, 664 (A.F.C.M.R.1978) and cases cited. On the facts here, we consider a bad conduct discharge, four months confinement and accessory penalties in a general court-martial to be relatively lenient. We conclude that there was no fair risk that the trial counsel’s remarks substantially affected the military judge’s determination of an appropriate sentence. The findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are AFFIRMED. Senior Judges BLOMMERS and MURDOCK concur." }, { "docid": "3675151", "title": "", "text": "UCMJ, 10 U.S.C. § 859(a). We now analyze the case to determine whether we can reassess the sentence. United States v. Doss, 57 M.J. 182, 185 (C.A.A.F.2002). Before reassessing a sentence, this Court must be confident “that, absent any error, the sentence adjudged would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.1986). A “dramatic change in the ‘penalty landscape’ ” gravitates away from our ability to reassess a sentence. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.2003). Ultimately, a sentence can be reassessed only if we “confidently can discern the extent of the error’s effect on the sentencing authority’s decision.” United States v. Reed, 33 M.J. 98, 99 (C.M.A.1991). In United States v. Harris, 53 M.J. 86, 88 (C.A.A.F.2000), our superior court decided that if the appellate court “cannot determine that the sentence would have been at least of a certain magnitude,” it must order a rehearing. See also United States v. Poole, 26 M.J. 272, 274 (C.M.A.1988). Although the approved forfeitures exceed the maximum punishment authorized, we are confident the convening authority would have approved a punishment which includes a forfeiture of two-thirds of his pay per month from the time the sentence was adjudged until he took action on this case. Considering the evidence in the record, we find that a reassessed sentence of a dishonorable discharge, forfeiture of $933.00 pay per month for two months and reduction to the grade of E-l cures the error. We also find, after considering the appellant’s character, the nature and seriousness of the offense, and the entire record, that the reassessed sentence is appropriate. Sentence Severity Finally, the appellant argues a dishonorable discharge is too severe given the members sentenced him to no confinement. We review sentence appropriateness de novo. United States v. Baier, 60 M.J. 382, 383-84 (C.A.A.F.2005). We make such determinations in light of the character of the offender, the nature and seriousness of his offenses, and the entire record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A.1982). Additionally, while we have a great deal of" } ]

[ { "docid": "12515093", "title": "", "text": "promulgated them, there better be very, very cogent reasons why the Court believes it appropriate in a given case to impose a sentence outside the guidelines. If it was not clear a year after Booker was decided, it is now apparent in light of Rita that the approach described by the district court gives too much weight to the Guidelines. It would be different — and unobjectionable — if the judge had said only that, in light of the discretion he now possesses under Booker and Rita, he was electing to impose a guideline sentence in this particular case unless the defendant could persuade him otherwise. But that is not what the judge said here. Instead, the tenor of his remarks indicated that he felt that there was an outside constraint on his discretion that he was not free to set aside. Moreover, the judge offered another reason, equally troubling, for his choice of sentence. He suggested that Schmitt’s guideline range deserved more weight in the calculus because his crime involved child pornography, a major focus of the PROTECT Act in 2003: Given the fact that Congress has spoken in unmistakable terms, I cannot in good conscience deviate from the advisory sentencing guidelines because of the good things that have been said today about William Schmitt, the good things that appear in the presentence report, and the wonderful things that the professionals have to say about him in terms of lack of pedophilia, lack of pursuing in a physical sort of way those of tender age who otherwise are taken advantage of and appear in these materials. But what I am here to address is the simple reality that Congress has spoken loud and clear, and given the very close proximity to the mandatory sentence that would have otherwise applied, I frankly do not see and do not find any basis to impose other than the sentence called for at the low end of the advisory sentencing guidelines. While we noted in United States v. Grigg, 442 F.3d 560, 564 (7th Cir.2006), that district courts “ought to give respectful attention" } ]

[ { "docid": "6648064", "title": "", "text": "court’s decision to impose a below-guideline sentence was in any way related to the crack/powder disparity. We cannot assume that the district court implicitly considered Johnson’s argument for a reduced ratio merely because it imposed a below-guideline sentence. Rather, we assume only that if the district court had applied a reduced ratio or decided to impose a below-guideline sentence based on the crack/powder disparity, it would have expressly or implicitly indicated as much on the record. Accordingly, we vacate Johnson’s sentence and remand to give the district court an opportunity to consider and address his arguments for a reduced crack-to-powder ratio. The district court need not conduct a complete sentencing hearing, although, as we explain below, we invite it to do so. We reject Johnson’s request for a broader remedy. Relying on Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), he asks us to categorically prohibit the district courts in the Northern District of Illinois from using the 100:1 ratio based on policy considerations indicating the disparity’s unfairness. But Spears does not authorize us to grant such relief. The Court in Spears wrote merely that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Id. at 843-44 (emphasis added); see also United States v. Corner, 598 F.3d 411, 414-15 (7th Cir.2010). That authority resides in district courts, not courts of appeals. See Spears, 129 S.Ct. at 843-44; Kimbrough, 552 U.S. at 91, 110, 128 S.Ct. 558; see also Corner, 598 F.3d at 415 (“We understand Kimbrough and Spears to mean that district judges are at liberty to reject any Guideline on policy grounds— though they must act reasonably when using that power.”). The courts of appeals review sentences for procedural errors and substantive reasonableness, see, e.g., Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. West, 628 F.3d 425, 431 (7th Cir.2010), but we cannot categorically prohibit all sentencing courts from applying a 100:1 ratio. We thus reject Johnson’s final argument related to" }, { "docid": "23187001", "title": "", "text": "v. Bolds, 511 F.3d 568, 578 (6th Cir.2007). A sentence is not procedurally reasonable if the district court “fail[s] to calculate (or improperly calculates]) the Guidelines range, treatfs] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, [or] selects] a sentence based on clearly erroneous facts.... ” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Substantive unreasonableness focuses on the length and type of the sentence and will be found when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Camacho-Arellano, 614 F.3d 244, 247 (6th Cir.2010) (internal citations and quotation marks omitted). Cooper admits that the district court correctly applied the career-offender guidelines, see Cooper Br. at 12, but he argues that we “should hold that application of the Career Offender guideline, at all, produces an unreasonable sentence,” id. at 15 (citing United States v. Newhouse, 919 F.Supp.2d 955 (N.D.Iowa 2013)). District courts may depart downward from a guidelines-recommended sentence, in certain cases, based on a policy disagreement with the Sentencing Commission. See, e.g., Spears v. United States, 555 U.S. 261, 263-64, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Johnson, 553 F.3d 990, 995-96 (6th Cir.2009). We have never held, as Cooper acknowledges, that a district court must depart downward from a guidelines-recommended sentence. See, e.g., United States v. Brooks, 628 F.3d 791, 800 (6th Cir.2011). We refuse to do so now. The career-offender guidelines may be less than perfect, but district courts are best positioned — at least in the first instance — to sift through the facts of an individual case and determine an appropriate sentence for each defendant. In Cooper’s case, the district court met its responsibility. At the sentencing hearing, the district court took considerable time to determine “the sentence that best fits [Cooper’s particular] circumstances.” R. 618 (Cooper Sept. 25, 2012" }, { "docid": "20201443", "title": "", "text": "section 3553(a) to impose the sentence that it did. See Gall v. United States, 552 U.S. 38, 48-49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (affirming below-guideline sentence of probation and recognizing substantial restrictions on liberty imposed by sentence of probation). Under Booker and Gall the district court is required to calculate the applicable sentencing guidelines for the crime and the criminal, and an error in the calculation is a procedural error in sentencing that may require a remand. Booker, 543 U.S. at 259-60, 125 S.Ct. 738; Gall, 552 U.S. at 49-51, 128 S.Ct. 586. At the same time, however, it is clear that errors in calculating the advisory guideline calculations are subject to harmless error analysis. E.g., United States v. Abbas, 560 F.3d 660, 666-67 (7th Cir.2009) (holding guideline error was harmless); United States v. Anderson, 517 F.3d 953, 965-66 (7th Cir.2008) (same); see generally Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (stating before Booker that guideline errors were subject to harmless error analysis). In both Abbas and Anderson, the district courts recognized the disputed guideline issues, stated that their sentences would be the same regardless of how the guideline issues were decided, and provided thoughtful explanations of their reasoning. In such cases, because the sentencing guidelines are no longer mandatory, appellate courts should readily find that guideline errors are harmless. Correct application of the guidelines can present many difficult or esoteric questions, including many that have little to do with the ultimate legal and moral judgment about an appropriate sentence. Since Booker, this court has often recognized that the sentencing judge may impose a reasonable sentence under section 3553(a) regardless of how a difficult guideline issue might be resolved. “When a judge proceeds in this manner, she must make clear that the § 3553(a) factors drive the sentence without regard as to how the prior conviction fits under a particular guideline. Doing so will make the often nit-picking review of issues like this under our now advisory guideline scheme unnecessary.” United States v. Sanner, 565 F.3d 400, 406 (7th Cir.2009)" }, { "docid": "23434654", "title": "", "text": "and his daughter Jody, who both felt compelled to accede to Hill’s demands because of his position and authority over their liquor license. Jody testified that Hill locked her in his office and tried to obtain sexual favors from her while • engaging in lewd behavior (he had his hands down his pants) in exchange for renewal of her license. Because she rebuffed his advances, Hill didn’t issue her the license that day. Jody’s father had to go back a few days later to obtain the license renewal. (The district court credited Jody’s testimony.) The Marsalas didn’t complain about Hill’s behavior for fear, of losing their liquor license and ability to earn a living. II. When reviewing a sentence, regardless of whether the sentence is inside or outside the Guidelines range, we must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.... ” United States v. Abbas, 560 F.3d 660, 666 (7th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Although the Guidelines are advisory, the Supreme Court has stressed that district courts must treat them as “the starting point and the initial benchmark.” Gall, 552 U.S. at 49, 128 S.Ct. 586. The sentencing judge must, therefore, “first correctly calculate the advisory guideline range and then, based on the sentencing factors set out in 18 U.S.C. § 3553(a), decide whether to impose a sentence within that range.” United States v. Nelson, 491 F.3d 344, 347 (7th Cir.2007). Once we are convinced that the sentencing judge followed correct procedure, we then consider the substantive reasonableness of the sentence. United States v. Jackson, 547 F.3d 786, 792 (7th Cir.2008). The sentencing court must not presume that a within-Guidelines sentence is reasonable, but must apply the factors set forth in 18 U.S.C. § 3553(a) in determining a reasonable sentence that is “sufficient, but" }, { "docid": "23208181", "title": "", "text": "POSNER, Circuit Judge. We have consolidated these two sentencing appeals in order to flag a growing problem created by the Booker decision, which in the name of the Sixth Amendment demoted the federal sentencing guidelines to advisory status. Before there were guidelines, a federal judge in picking a sentence ranged essentially at large within the typically broad statutory sentencing limits, appellate review of the choice of sentence within those limits being minimal, even perfunctory. See Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984); United States v. Barnes, 907 F.2d 693, 695 (7th Cir.1990); United States v. Tomko, 562 F.3d 558, 564 (3d Cir.2009). The guidelines sought to narrow judicial discretion by creating sentencing ranges inside the statutory mínimums and máximums and limiting departures from the applicable range. Booker unbound the sentencing judges from the guidelines; and while the judges are still required to consider them, Nelson v. United States, - U.S. -, - - -, 129 S.Ct. 890, 891-92, 172 L.Ed.2d 719 (2009) (per curiam); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009); United States v. Quinones-Medina, 553 F.3d 19, 22 (1st Cir.2009), they may not ignore substantial arguments for deviating, United States v. Castaldi, 547 F.3d 699, 706 (7th Cir.2008), and can if they wish reject the penal theories that inform the guidelines and (within reason) devise and follow a different penal theory. Spears v. United States, - U.S. -, - - -, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007); United States v. Herrera-Zuniga, 571 F.3d 568, 585-86 (6th Cir. 2009); United States v. Russell, 564 F.3d 200, 204 (3d Cir.2009). But this new approach to sentencing, coupled with the requirement that appellate review of sentences is now to be robust, albeit deferential, Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Higdon, 531 F.3d 561, 562-63 (7th Cir.2008); United" }, { "docid": "615337", "title": "", "text": "[gjuideline range ‘necessarily5 complies with § 3553(a)(6).” United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 54, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Here, there is no dispute that the district court correctly calculated the guideline range or that Reyes-Medina’s sentence was within that range. Thus, the district court judge did not need to say a word about § 3553(a)(6)’s application in this case to satisfy the procedural requirement that he give that factor “meaningful consideration.” Reyes-Medina next complains that the district court judge failed to consider his arguments made under § 3553(a)(5). That subsection requires a sentencing court to consider “any pertinent policy statement ... issued by the Sentencing Commission.” 18 U.S.C. § 3553(a)(5). At the sentencing hearing, the district court judge referred to this provision as “a historical relic because that was applicable only at a time when the [sjentencing [gjuidelines themselves were mandatory and, therefore, when they contain policy statements, they were considered by a different standard. That is no longer true because the whole thing is advisory.” Reyes-Medina cries foul, arguing that, even in the post-United States v. Booker world where the guidelines are advisory, see 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentencing court must still give pertinent policy statements “ ‘respectful consideration.’ ” Pepper v. United States, — U.S. -, 131 S.Ct. 1229, 1247, 179 L.Ed.2d 196 (2011) (quoting Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)). But a fair reading of the district court judge’s statement shows that he was merely confirming the post-Booker reality that the guidelines are no longer mandatory. This is especially true with respect to policy statements — even before the Booker decision made the guidelines advisory, the U.S. Sentencing Commission called “ ‘policy statements’ ... merely ‘advisory and hence ‘nonbinding.’ ” United States v. Robertson, 648 F.3d 858, 859 (7th Cir.2011) (quoting, inter alia, United States v. Carter, 408 F.3d 852, 854 (7th Cir.2005)). A fortiori, now, when the entire guidelines are only advisory, the parts" }, { "docid": "7897827", "title": "", "text": "departure for the sentence. Id. “[T]o assume that the same sentence would have been imposed in the absence of the career offender provision,” the Narvaez court explained, “is frail conjecture that evinces in itself an arbitrary disregard of the petitioner’s right to liberty.” Id. (internal citations omitted). Despite the remarkable correlation between the facts and legal posture in Narvaez and this case, the majority gives Narva&z short shrift. It does so, it says, because Narvaez was sentenced before the Supreme Court decided United States v. Booker, when the Guidelines were mandatory and thus the judge was bound by the determination to impose a particular sentence. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The majority, I fear, hangs its precedent-distinguishing hat on an illusory distinction. In Booker, the Supreme Court declared that the U.S. Sentencing Guidelines, which courts before had considered mandatory, were now only advisory. Id. at 245, 125 S.Ct. 738. Booker indeed initiated a sea change in sentencing procedures, but those changes do not affect the error in this case. Both before and after Booker, the first step in sentencing was and is for the sentencing judge to begin the sentencing proceeding by correctly calculating the applicable Guidelines range. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This was “step one” before Booker and remains “step one” now. Our cases post -Booker have routinely held that “although a judge is no longer required to give a Guidelines sentence, he is required to make a correct determination of the Guidelines sentencing range as the first step in deciding what sentence to impose.” United States v. Vrdolyak, 593 F.3d 676, 681-82 (7th Cir. 2010), (citing Gall, 552 U.S. at 50, 128 S.Ct. 586); United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.2009). The Guidelines must be the starting point and the initial benchmark. United States v. Hurt, 574 F.3d 439, 442-43 (7th Cir.2009). In case after case we have emphasized that even after Booker, a failure to initially calculate the Guidelines properly constitutes a legal" }, { "docid": "20177214", "title": "", "text": "total offense level of 48 and a Category I criminal history, the advisory Guidelines range was life imprisonment. We review the district court’s sentencing decision for substantive reasonableness under a deferential abuse-of-discretion standard. United States v. Jones, 641 F.3d 706, 711 (6th Cir.2011) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “‘A sentence is substantively unreasonable if the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.’ ” United States v. Camiscione, 591 F.3d 823, 832 (6th Cir.2010) (quoting United States v. Laipsins, 570 F.3d 758, 772 (6th Cir.2009)). The Supreme Court in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), “re ject[ed] ... an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range” and “also rejected] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Gall, 552 U.S. at 47, 128 S.Ct. 586. However, the Court “permitted] district and appellate courts to require some correlation between the extent of a variance and the justification for it,” United States v. Gross-man, 513 F.3d 592, 596 (6th Cir.2008), explaining that if a sentencing judge “decides ... an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S. at 50, 128 S.Ct. 586. Naturally, “a major departure should be supported by a more significant justification than a minor one.” Id. We “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Pointing out that Richards’ sixteen-year term" }, { "docid": "11431323", "title": "", "text": "one another” for the purpose of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), because the perpetrator could have stopped after the first crime. Robberies 36 days apart are even harder to describe as a “single criminal transaction”. But we need not decide, because the answer does not matter. Policy statement § 5K2.20 deals with departures from the Guidelines, and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made departures obsolete. The Guidelines are no longer binding; judges can use their own penal philosophies. See Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Corner, 598 F.3d 411 (7th Cir.2010) (en banc). Judges must start by correctly calculating the Sentencing Commission’s recommended range. See Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This benchmark helps to prevent unwarranted disparities. 18 U.S.C. § 3553(a)(6). Once the range has been determined, the sentence depends on the judge’s reasonable application of the criteria in § 3553(a), not on the Sentencing Commission’s recommendations about departures in the pre-Booker world. See United States v. Reyes-Medina, 683 F.3d 837, 841-42 (7th Cir.2012); United States v. Moreno-Padilla, 602 F.3d 802, 811 (7th Cir.2010); United States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir.2006). See also, e.g., United States v. Diosdado-Star, 630 F.3d 359, 364-66 (4th Cir.2011); United States v. Gutierrez, 635 F.3d 148, 153 (5th Cir.2011). There is no point spending time on the fine details of the outdated rules limiting departures. We can imagine situations in which a judicial error related to one of the policy statements in the § 5K2 range would be a ground of reversal after Booker. There would be. a problem, for example, if a district judge thought that, because a defendant does not qualify for a departure under a policy statement, the judge is forbidden to consider that circumstance. That" }, { "docid": "22265219", "title": "", "text": "a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “The touchstone of abuse of discretion review in federal sentencing is reasonableness.” United States v. Vargas-Dávila, 649 F.3d 129, 130 (1st Cir.2011). The review process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable. United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). The appellant characterizes his arguments as addressing only the substantive reasonableness of his sentence. But two of them — his claim that the district court failed to recognize its authority to reject the Sentencing Commission’s policy judgments and his claim that the district court shirked its responsibility to consider a sentencing factor enumerated in 18 U.S.C. § 3553(a) — belie this characterization. These claims are appropriately analyzed as part of the procedural reasonableness requirement. See United States v. Stone, 575 F.3d 83, 88-89 (1st Cir.2009); United States v. Rodríguez, 527 F.3d 221, 231 (1st Cir.2008); Martin, 520 F.3d at 92. We begin with them, and then proceed to gauge the substantive reasonableness of the sentence. The appellant asserts that, in composing the federal sentencing guidelines, the Sentencing Commission treated child pornography in a Draconian manner; that the Commission did not adequately differentiate among various types of offenders; and that the guideline ranges for passive child pornography offenses committed by first-time offenders are much too severe. He argues that these incongruities were made known to the sentencing court but the court failed to recognize that it had the authority to deviate from the GSR if it disagreed with the Commission’s policy judgments. This claim of error has its roots in the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). In that case, the court of appeals had ruled that a sentencing court was bound to follow the disparate treatment of crack cocaine and cocaine powder built into the federal sentencing guidelines. The Supreme Court reversed. It explained: A district judge must include the Guidelines range" }, { "docid": "23208182", "title": "", "text": "States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009); United States v. Quinones-Medina, 553 F.3d 19, 22 (1st Cir.2009), they may not ignore substantial arguments for deviating, United States v. Castaldi, 547 F.3d 699, 706 (7th Cir.2008), and can if they wish reject the penal theories that inform the guidelines and (within reason) devise and follow a different penal theory. Spears v. United States, - U.S. -, - - -, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007); United States v. Herrera-Zuniga, 571 F.3d 568, 585-86 (6th Cir. 2009); United States v. Russell, 564 F.3d 200, 204 (3d Cir.2009). But this new approach to sentencing, coupled with the requirement that appellate review of sentences is now to be robust, albeit deferential, Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Higdon, 531 F.3d 561, 562-63 (7th Cir.2008); United States v. Tomko, supra, 562 F.3d at 567, unlike the attitude of almost total deference that prevailed before the guidelines were promulgated, invites defendants to so widen the scope of the sentencing hearing as to place (or at least try to place) an extremely heavy burden on the sentencing judge — as these two appeals illustrate. Defendant Aguilar-Huerta came to the United States from Mexico with his parents when he was a child. At age 17 he pleaded guilty in state court to gang-related drive-by shootings and was sentenced to six years in prison. Paroled after two years, he was deported to Mexico but returned without permission a year later. Two years after that he was arrested and prosecuted for being illegally in the United States after having been deported. 8 U.S.C. § 1326(a). He challenges the 46-month below-guidelines sentence imposed for that offense. The guidelines required a 16-level increase in the defendant’s offense level because he had been deported after being convicted of an aggravated felony, U.S.S.G. § 2L1.2(b)(1)(A)(ii), and this, together with other" }, { "docid": "4275379", "title": "", "text": "present case calls on us to apply the familiar framework for reviewing district court sentencing decisions. We first consider whether the district court committed any procedural error, and then consider whether the sentence was substantively unreasonable. See United States v. Hall, 608 F.3d 340, 346 (7th Cir.2010). As to the procedural inquiry, we ask whether the sentencing court erred by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors ... or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (U.S.2007). But recent case law indicates that the sentencing court need not frame its explanation of a sentence in terms of a departure from the guidelines range, but may instead focus on the appropriateness of the sentence under § 3553. United States v. Bartlett, 567 F.3d 901, 909 (7th Cir.2009) (citing Nelson v. United States, 555 U.S. 350, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009)); see also United States v. Vaughn, 614 F.3d 412, 415 (7th Cir.2010). Questions of procedural error are reviewed de novo. See Hall, 608 F.3d at 346. We review the substantive reasonableness of a sentence for an abuse of discretion, even when it is outside the guidelines. See Gall, 552 U.S. at 51, 128 S.Ct. 586. There is no presumption of unreasonableness merely because a sentence is outside of the suggested guidelines range but rather we ordinarily give the sentencing court deference if “the factors in 18 U.S.C. § 3553(a), as a whole, justify the extent of the variance from the guidelines.” United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009). Under this analysis, “[t]he farther the judge’s sentence departs from the guidelines ... the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005). Again, however, after Bartlett a" }, { "docid": "7897828", "title": "", "text": "in this case. Both before and after Booker, the first step in sentencing was and is for the sentencing judge to begin the sentencing proceeding by correctly calculating the applicable Guidelines range. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This was “step one” before Booker and remains “step one” now. Our cases post -Booker have routinely held that “although a judge is no longer required to give a Guidelines sentence, he is required to make a correct determination of the Guidelines sentencing range as the first step in deciding what sentence to impose.” United States v. Vrdolyak, 593 F.3d 676, 681-82 (7th Cir. 2010), (citing Gall, 552 U.S. at 50, 128 S.Ct. 586); United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.2009). The Guidelines must be the starting point and the initial benchmark. United States v. Hurt, 574 F.3d 439, 442-43 (7th Cir.2009). In case after case we have emphasized that even after Booker, a failure to initially calculate the Guidelines properly constitutes a legal error. See, e.g., United States v. Chapman, 694 F.3d 908, 913 (7th Cir.2012); United States v. Halliday, 672 F.3d 462, 472 (7th Cir.2012); United States v. Baker, 655 F.3d 677, 683 (7th Cir.2011); United States v. Long, 639 F.3d 293, 298 (7th Cir.2011); United States v. Snyder, 635 F.3d 956, 961 (7th Cir.2011). In short, the error that the district court made (and it did indeed err — even the majority admits that) occurred in the sequence of the sentencing procedure unaltered by Booker. Thus, there is no distinction between this case and Narvaez. It is true, of course, that the sentencing court in this case was not required to sentence Hawkins according to the Guidelines calculations. Step two of the sentencing procedure requires the court to consider the factors enumerated in 18 U.S.C. § 3553 to evaluate whether the Guidelines range is truly proper given particular considerations. Gall, 552 U.S. at 49-50, 128 S.Ct. 586. But the harm to Hawkins had already occurred — before the court could even turn to the advisory part" }, { "docid": "23630544", "title": "", "text": "on Counts 4, 25, 33, and 39, to run concurrently. On September 29, 2009, the district court sentenced Pedroza to 360 months of imprisonment on Count 1 and 48 months on Count 12, to run concurrently. II. Analysis A. Pedroza’s Sentence Pedroza challenges his sentence on four grounds. We review de novo whether the district court committed a procedural error, which includes determining whether the district court properly considered the factors in 18 U.S.C. § 3553(a) and mitigating evidence, and whether it improperly treated the guidelines as mandatory or otherwise unduly relied on them. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Coopman, 602 F.3d 814, 817-19 (7th Cir.2010); United States v. Omole, 523 F.3d 691, 697-98 (7th Cir.2008). Next, we review for abuse of discretion whether the sentence is substantively reasonable in light of the factors in § 3553(a). Coopman, 602 F.3d at 819. First, while Pedroza concedes that the district court correctly calculated his guidelines range, he claims that the district court misapplied the factors in § 3553(a) and failed to adequately consider mitigating facts. This argument is vacuous. The district court thoroughly analyzed the factors in § 3553(a) and committed no reversible error in doing so. It discussed the nature and circumstances of the offense — including the amount of drugs involved in the conspiracy, Pedroza’s role in the conspiracy, and the harm from the drugs he distributed — Pedroza’s history and characteristics — including his age and the fact that a guideline sentence would likely ensure that Pedroza would die in prison, that he has a strong family that he loves and supports, and his significant criminal history, including leading a drug distribution ring while imprisoned on a previous conviction — and the need for the sentence imposed to deter, promote respect for the law, provide just punishment, and protect the public from further crimes by Pedroza — including that Pedroza’s previous sentences did not deter him from recidivating, his lack of remorse, and that he has no respect for the laws of the United" }, { "docid": "17096228", "title": "", "text": "is not implicated by changes in advisory Guidelines because the ex post facto clause applies only to laws and regulations that are binding. We acknowledged that sentencing judges will no doubt be influenced by the Guidelines, but explained: The judge is not required — or indeed permitted — to “presume” that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why it’s not correct. All he has to do is consider the guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a). His choice of a sentence, whether inside or outside the guideline range, is discretionary and subject therefore to only light appellate review. The applicable guideline nudges him toward the sentencing range, but his freedom to impose a reasonable sentence outside the range is unfettered. Id. at 794-95 (internal citations omitted); see also Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (in calculating the sentence, the judge “may not presume that the Guidelines range is reasonable”); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply”). After Booker, advisory Guidelines do not limit a sentencing judge’s discretion, and in a discretionary sentencing regime, it would be incongruous to hold that later, more severe Guidelines hold a “substantial risk” of a harsher sentence. Put another way, a sentencing court may take advice from the Sentencing Commission, regardless of when that advice was issued. A sentencing court may consider past and present advisory Guidelines, and even proposed advisory Guidelines that have not yet taken effect. We have reaffirmed our decision in Demaree many times since, see, e.g., United States v. Holcomb, 657 F.3d 445, 448-49 (7th Cir.2011); United States v. Favara, 615 F.3d 824, 829 (7th Cir.2010); United States v. Panice, 598 F.3d 426, 435 (7th Cir.2010); and United States v. Nurek, 578 F.3d 618," }, { "docid": "22820283", "title": "", "text": "of review. A. Standard of review Criminal sentences must be both procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Challenges to the reasonableness of a sentence are reviewed under the deferential abuse-of-discretion standard. United States v. Novales, 589 F.3d 310, 314 (6th Cir.2009). We “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) fac tors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court’s legal interpretation of the Guidelines are reviewed de novo, but its factual findings will not be set aside unless they are clearly erroneous. United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007). “Although the district court need not explicitly reference each of the § 3553(a) factors, there must be sufficient evidence in the record to affirmatively demonstrate that the court gave each of them consideration.” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir.2010) (citation omitted). A sentencing explanation is adequate if it allows for meaningful appellate review, Gall, 552 U.S. at 50, 128 S.Ct. 586, which is accomplished by “settling] forth enough [of a statement of reasons] to satisfy the appellate court that [the sentencing judge] has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The “sentencing judge is not required to explicitly address every mitigating argument that a defendant makes, particularly when those arguments are raised only in passing.” United States v. Madden, 515 F.3d 601, 611 (6th Cir.2008). For sentencing purposes, the Supreme Court has made clear that “[t]he appropriateness of brevity or length, conciseness or detail, ... depends upon circumstances” that are left “to the judge’s own professional judgment.” Rita, 551 U.S. at 356, 127 S.Ct. 2456. If the sentence is deemed procedurally" }, { "docid": "23450828", "title": "", "text": "3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We then examine the sentence for reasonableness. United States v. Abbas, 560 F.3d 660, 666 (7th Cir.2009). Anderson, however, never objected to the district court’s imposition of three years of supervised release. Accordingly, we again apply a plain error test and find Judge Randa’s discussion adequate. To satisfy procedural justice requirements as set out in Gall, a sentencing judge “must correctly understand what the Guidelines recommend.” United States v. Alldredge, 551 F.3d 645, 647 (7th Cir.2008). Moreover, even where a district court makes a mistake, we will affirm a reasonable sentence if the government proves that it would not change on remand. United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009); United States v. Jackson, 549 F.3d 1115, 1118 (7th Cir. 2008); United States v. White, 519 F.3d 342, 349 (7th Cir.2008). Thus, while our precedent implores a judge to announce the suggested guidelines term of supervised release at the beginning of his § 3553(a) analysis to show that he understands the recommendation, United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.2009), any deviation from that approach here is harmless. United States v. Anderson, 517 F.3d 953, 965 (7th Cir.2008) (“An error is harmless if it ‘did not affect the district court’s selection of the sentence imposed.’ ”). In any event, a party who is concerned about the length or conditions of the supervised release portion of the sentence should bring those concerns to the court’s attention before the court imposes the sentence. In Gibbs, we remanded the ease for resentencing because the district judge gave no indication that she was aware that the Guidelines recommended five years of supervised release when she imposed twice that term on appellant. Accordingly, we were “unable to satisfy ourselves that the district court correctly calculated the advisory Guideline range.” 578 F.3d at 695— 96. Here, by contrast," }, { "docid": "8839949", "title": "", "text": "125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a question of law we review de novo. United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009). The Supreme Court in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), described the procedure that a sentencing court is required to follow. First, the sentencing court must correctly calculate the applicable Guidelines range. Gall, 552 U.S. at 39, 128 S.Ct. 586. Then, after giving both parties an opportunity to argue for the sentence they deem appropriate, the sentencing judge should consider all the § 3553(a) factors. Id. at 49, 128 S.Ct. 586. After deciding on the appropriate sentence, the sentencing court must adequately explain the chosen sentence. Id. at 50, 128 S.Ct. 586. “The district court need not address each § 3553(a) factor in checklist fashion, explicitly articulating its conclusion for each factor; rather, the court must simply give an adequate statement of reasons, consistent with § 3553(a), for believing the sentence it selects is appropriate.” United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th Cir.2008). Once we are satisfied that the district court committed no procedural error, we review the substantive reasonableness of the sentence under the abuse of discretion standard. United States v. Coopman, 602 F.3d 814, 819 (7th Cir.2010). A within-Guidelines sentence is entitled to a presumption of reasonableness. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Baker argues that the district court did not expressly discuss the seriousness of his present offense, and to the degree that the judge did so, the judge improperly considered the seriousness in light of Baker’s prior convictions. Ultimately, this argument amounts to Baker’s dissatisfaction with his increased sentence because of his career offender enhancement, which was properly applied and not challenged during the sentencing hearing or on appeal. Section 3553(a) and the career offender guidelines encourage judges to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1) (emphasis added). The district court’s fairly lengthy discussion of Baker’s previous convictions—all" }, { "docid": "23630543", "title": "", "text": "was arrested at his home on May 26, 2005. He waived his Miranda rights and confessed to participating in the drug conspiracy. Hernandez was also arrested on May 26, 2005. After waiving his Miranda rights, he also confessed to various aspects of the charged crimes. Both Vallar and Hernandez moved to suppress their confessions. The district court denied both motions. Curry pled guilty to the conspiracy charge on September 6, 2006. On April 13, 2007, a jury found Pedroza, Hernandez, and Vallar guilty on multiple counts. Hernandez and Pedroza separately filed motions for judgment of acquittal and a new trial in the alternative. The district court denied both motions. On September 12, 2007, the district court sentenced Vallar to 151 months of imprisonment on Counts 1 and 35 and 48 months of imprisonment on Count 37, to run concurrently. On October 28, 2008, the district court sentenced Hernandez to 324 months on Counts 1, 23, 40, and 48, 60 months on Counts 9 and 49, 240 months on Counts 34 and 36, and 48 months on Counts 4, 25, 33, and 39, to run concurrently. On September 29, 2009, the district court sentenced Pedroza to 360 months of imprisonment on Count 1 and 48 months on Count 12, to run concurrently. II. Analysis A. Pedroza’s Sentence Pedroza challenges his sentence on four grounds. We review de novo whether the district court committed a procedural error, which includes determining whether the district court properly considered the factors in 18 U.S.C. § 3553(a) and mitigating evidence, and whether it improperly treated the guidelines as mandatory or otherwise unduly relied on them. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Coopman, 602 F.3d 814, 817-19 (7th Cir.2010); United States v. Omole, 523 F.3d 691, 697-98 (7th Cir.2008). Next, we review for abuse of discretion whether the sentence is substantively reasonable in light of the factors in § 3553(a). Coopman, 602 F.3d at 819. First, while Pedroza concedes that the district court correctly calculated his guidelines range, he claims that the district court" }, { "docid": "7332083", "title": "", "text": "court erred when it failed to follow the proper sequence of events in calculating his guidelines range, failed to enter necessary findings of fact to support its drug quantity calculation, misapplied a firearm possession enhancement, and neglected to reduce Long’s sentence to account for the government’s alleged misconduct during the investigation. We will address each argument in turn. 1. The Procedural Sequence of the Sentencing Hearing Long first contends that the district court erred when it failed to follow the proper sequence of events at the sentencing hearing. We review the district court’s sentencing procedures de novo. United States v. Coopman, 602 F.3d 814, 817 (7th Cir.2010). As the Supreme Court has made clear, a district court should begin a sentencing hearing by calculating the advisory guidelines range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Glosser, 623 F.3d 413, 418 (7th Cir.2010). The court will then subject its proposed sentence to adversarial testing, hearing arguments as to whether the advisory sentence should apply. Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009). Finally, the court will evaluate the § 3553(a) factors and impose sentence, providing an “adequate statement of the judge’s reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005). Long first argues that the district court should have initiated the sentencing hearing by immediately calculating the guidelines range, rather than engaging in a preliminary discussion of the findings in the PSR. As support, Long points us to the Supreme Court’s statement in Gall that “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” 552 U.S. at 49, 128 S.Ct. 586. But Long’s overly literal interpretation of the statement in Gall ignores a crucial concept: namely that a discussion of the PSR and its findings is often an important first step employed by a district court" } ]

[ { "docid": "23328104", "title": "", "text": "18 U.S.C. § 666 does not require a tracing of federal funds to the project affected by the bribe or a showing that the defendant had the authority to administer federal funds. Only two requirements relevant to this appeal must be met to bring a defendant within section 666. First, the defendant must be an “agent” of a “government agency” that receives in excess of $10,000 from the federal government within a one-year period. 18 U.S.C. § 666(b). Second, thé defendant must accept a bribe relating to “any ... transaction ... involving $5,000 or more.” § 666(a)(1)(B) (emphasis added). Contrary to Simas’ contention, the language of the statute does not require the project affected by the bribe to be “ ‘any federally funded transaction involving $5,000.’ ” See United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.) (emphasis added), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988). By enacting section 666, Congress plainly decided to protect federal funds by preserving the integrity of the entities that receive the federal funds rather than requiring the tracing of federal funds to a particular illegal transaction. See id. at 578. As the Fifth Circuit noted: [A]ny reference to federal funds is conspicuously absent from the operative provisions, and it is clear that Congress has cast a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do. Id. at 577. We conclude the government was not required to trace federal funds to the stair-cleaning project to establish Simas’ violation of 18 U.S.C. § 666. D. Ineffective Assistance of Counsel Simas contends he received ineffective assistance of counsel because his trial counsel failed to investigate and pursue an “outrageous government conduct” defense. The more appropriate way to pursue this ineffective assistance of counsel claim is by way of a habeas corpus proceeding. Collateral review is preferable because in such a proceeding a record may be developed to show what counsel did and any resulting prejudice. See United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988). Accordingly, we decline to resolve Simas’ ineffective" } ]

[ { "docid": "6522451", "title": "", "text": "F.2d 572 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), for example, the court stated that while the legislative history manifests a congressional intent to preserve the integrity of federal funds, Congress specifically chose to do so by enacting a criminal statute that would eliminate the need to trace the flow of federal monies and that would avoid inconsistencies caused by the different ways that various federal programs disburse funds and control their administration. Id. at 577. Noting that the subsection that establishes the “$5,000 or more” requirement does not mention federal funds, the court upheld the § 666 conviction of a county supervisor for taking bribes in connection with the granting of contracts for the maintenance of local roads and bridges although the funds corruptly disbursed were not shown to be federal funds. The court stated that “it is clear that Congress has east a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do.” United States v. Westmoreland, 841 F.2d at 574-75, 577; see also United States v. Simas, 937 F.2d 459, 463 (9th Cir.1991) (“By enacting section 666, Congress plainly decided to protect federal funds by preserving the integrity of the entities that receive the federal funds rather than requiring the tracing of federal funds to a particular illegal transaction.”); United States v. Snyder, 930 F.2d 1090, 1091-93 (5th Cir.), cert. denied, 502 U.S. 942, 112 S.Ct. 380, 116 L.Ed.2d 331 (1991). This Court, in dealing with the $5,000 requirement, has held that § 666(a)(1)(B) was applicable where an employee of an organization that, received the requisite more-than-$10,000 in federal program funds accepted a bribe in exchange for attempting, in a joint operation between his organization and another that apparently was not shown to meet the more-than-$10,000 requirement, to cause the expenditure of $5,000 or more by the other organization. See United States v. Bonito, 57 F.3d 167 (2d Cir.1995). In Bonito, the defendant, a landlord and real estate developer, was charged with giving a bribe to one DeMatteo, who was, inter alia, Director" }, { "docid": "16820497", "title": "", "text": "or informant to commit bribery. Our jurisdiction to review these matters is conferred by 28 U.S.C. § 1291 (“final decisions of district courts”) and 18 U.S.C. § 3742 (“review of a sentence”). A. Connection to Federal Dollars Reyes argues that his convictions under 18 U.S.C. § 666 for federal programs bribery must be reversed because the government failed to establish the required connection between the charged criminal acts and federal dollars. Whether under § 666 the requisite nexus between the criminal activity and federal dollars exists is a question of law we review de novo. See United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.1988). Section 666, entitled “theft or bribery concerning programs receiving Federal funds,” provides, in relevant part: (a) Whoever, if the circumstance described in subsection (b) of this section exists— (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof— (B) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.... shall be fined under this title, imprisoned not more than 10 years, or both, (b) The circumstances referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of federal assistance. 18 U.S.C. § 666. In United States v. Westmoreland, we said that § 666 “limits its reach to entities that receive a substantial amount of federal funds and to agents who have the authority to effect such significant transactions.” 841 F.2d at 578. In that case, the defendant was convicted of receiving kickbacks on purchases he made for the county government. We upheld the conviction, noting that the defendant “served as a county supervisor”" }, { "docid": "5862955", "title": "", "text": "Supreme Court notes, “Congress ordinarily adheres to a hierarchical scheme in subdividing statutory sections.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60, 125 S.Ct. 460, 467, 160 L.Ed.2d 389 (2004). After considering the overall statutory scheme, we conclude that the phrase “[t]his section” in § 666(c) is unambiguous and that the statutory scheme is consistent and coherent. Cf. Perry v. First Nat’l Bank, 459 F.3d 816, 820 (7th Cir.2006) (holding that the phrase this section in 15 U.S.C. § 1681m(h)(8) “unambiguously refers to [§ ] 1681m as a whole”). We thus hold that subsection (c)’s exception applies to subsection (b)’s federal-funds threshold. Accord Mills, 140 F.3d at 633 (“[T]he bona fide salary exception of subsection (c) must be read to apply to all of § 666.”); United States v. Nichols, 40 F.3d 999, 1000 (9th Cir.1994) (explaining that § 666(c) “excludes local agencies that receive federal funds only as ‘bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.’ ”). D. Chafin contends that we should vacate his federal-program embezzlement conviction. Applying § 666(c) to § 666(b), he posits that the federal funds designated for payment of the victim advocate’s salary do not count toward the federal-funds threshold. Thus, he concludes, excepting these funds, the government failed to prove that Brooks County received more than $10,000 in federal funds. We disagree and thus affirm his conviction. 1. Having concluded that § 666(c) applies to the whole statute, we must determine what types of payments are excepted from § 666(b)’s federal-funds threshold. Again, we begin with the text. Subsection (c) excepts “bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” Thus, for a salary to be excepted, it must not only be “bona fide” but also “paid ... in the usual course of business.” Subsection (b), on the other hand, limits the statute’s reach to only those covered entities that received “benefits in excess of $10,000 under a Federal program” in a statutorily defined one-year period. See" }, { "docid": "4198591", "title": "", "text": "April 26, 1993. The series of bribes comprising the pattern of racketeering charged in the indictment against Marmolejo and Salinas occurred during these periods. As a result of the bribery scheme between Marmolejo and Beltran, Marmolejo and Salinas were convicted of numerous offenses. A jury found Marmolejo guilty of violating RICO, in violation of 18 U.S.C. § 1962(c), RICO conspiracy, in violation of 18 U.S.C. § 1962(d), two counts of bribery in relation to a program receiving more than $10,000 in federal funds, in violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2, aiding and abetting money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i) and 18 U.S.C. § 2, two counts of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(A)(i), and travel in interstate commerce to promote bribery, in violation of 18 U.S.C. § 1952(a)(3). A jury found Salinas guilty of RICO conspiracy, in violation of 18 U.S.C. § 1962(d), and two counts of bribery in relation to a program receiving more than $10,000 in federal funds, in violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2. Both defendants filed timely notices of appeal. II Marmolejo and Salinas argue several points of error concerning their convictions for bribery under 18 U.S.C. § 666(a)(1)(B), which prohibits theft and bribery by officials of state and local agencies that receive federal funds. We review questions of statutory interpretation de novo. United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988). “Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. ‘[0]nly the most extraordinary showing of contrary intentions’ in the legislative history will justify departure from that language.” United States v. Albertini 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985) (citations omitted) (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984)). Section 666(b) restricts the statute to agencies that receive “in any one year period, benefits in excess of $10,000 under a Federal program involving a" }, { "docid": "10440577", "title": "", "text": "reach the $5,000 minimum and then start the aggregation process again, charging defendant with multiple violations for conduct that occurred in a one-year time frame. Again, nothing in the legislative history shows that Congress intended to reach theft of insignificant amounts by allowing the government to aggregate conduct over an indefinite, expansive period of time. Accordingly, we hold that a natural reading of the statute requires the $5,000 theft to occur during a one-year period. Here, the indictment improperly included numerous incidents of theft over a three-year period as did the evidence presented at trial, and for this reason, neither defendant’s conviction on Count One or Count Two may stand. B. NATURE OF BENEFITS The second issue requiring interpretation of the statute is whether the government must prove that the misappropriated funds came from a federal program. Valentine argues that because the police copy fund involved money that was entirely local in source, her prosecution violates the statute and offends the notion of federalism. Neither the statutory language nor the legislative history supports her argument. After reviewing the provision at issue, the plain language prompted the court in United States v. Westmoreland, 841 F.2d 572, 577 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), to hold that there was no need for the United States to trace stolen money, noting that any “reference to federal funds is conspicuously absent from the operative provision [contained in § 666(a) ].” Accord, United States v. Wyncoop, 11 F.3d 119 (9th Cir.1993); United States v. Coyne, 4 F.3d 100 (2d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994); United States v. Simas, 937 F.2d 459 (9th Cir.1991); United States v. Little, 889 F.2d 1367 (5th Cir.1989), cert. denied, 495 U.S. 933, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990). The legislative history reveals that Congress intended that § 666 would close the gap identified in 18 U.S.C. § 641 which governs general theft of federal property, but only if the property stolen is property of the United States. S.Rep. at 3510. Because prosecution under" }, { "docid": "10440570", "title": "", "text": "of the statute, its legislative history and the purpose underlying its enactment. Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985). The language of the charging statute reads in pertinent part as follows: (a) Whoever, if the circumstance described in subsection (b) of this section exists— (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof— (A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that— (i) is valued-at $5,000 or more, and (ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; ... shall be fined under this title, imprisoned not more that 10 years, or both. (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. (c)This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business. 18 U.S.C. § 666. To bring Valentine within the boundaries of § 666, the government must establish the following elements. First, the government must show that Valentine was an agent of local government at the time of the offense. 18 U.S.C. § 666(a)(1). Here, it is undisputed that Valentine was an agent of city government and the water department. Second, the government must show that Valentine embezzled, stole, fraudulently obtained or willingly converted property worth at least $5,000 which was under the control, care or supervision of the city and water department. 18 U.S.C. § 666(a)(l)(A)(i), (ii). Third, the government must show that the above elements occurred during a time in which the city and the water department received in excess of $10,000 in any one year from a qualifying federal assistance program. 18 U.S.C. §" }, { "docid": "4198592", "title": "", "text": "U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2. Both defendants filed timely notices of appeal. II Marmolejo and Salinas argue several points of error concerning their convictions for bribery under 18 U.S.C. § 666(a)(1)(B), which prohibits theft and bribery by officials of state and local agencies that receive federal funds. We review questions of statutory interpretation de novo. United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988). “Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. ‘[0]nly the most extraordinary showing of contrary intentions’ in the legislative history will justify departure from that language.” United States v. Albertini 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985) (citations omitted) (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984)). Section 666(b) restricts the statute to agencies that receive “in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance or other form of Federal assistance.” 18 U.S.C. § 666(b). The defendants contend that the district court did not have jurisdiction to try the bribery counts under 18 U.S.C. § 666 because Hidalgo County did not receive “benefits in excess of $10,000 under a Federal program” or any “other form of Federal assistance.” Id. The parties dispute whether it is proper, in determining whether Hidalgo County Jail received Federal assistance, to focus on (1) a Cooperative Agreement Plan (CAP), which provided a $850,000 grant for construction at the Hidalgo County Jail, and an Intergovernmental Service Agreement (IGA), which provided that Hidalgo County Jail would house federal prisoners in exchange for their costs, or (2) just IGA. This issue is relevant not only to determine whether the arrangement constituted a Federal program or Federal assistance, but also to determine whether Hidalgo County satisfies the requirement that it received the benefit within a one year period. The plain language of § 666(b) is ambiguous in defining “Federal program” and “Federal assistance.”" }, { "docid": "6522450", "title": "", "text": "accused of, inter alia, taking a bribe in connection with the construction of a county civic center. Although the county received federal funds, it received none that were earmarked for the civic center, and Coyne argued that the more-than-$10,000 jurisdictional amount set out in § 666(b) was therefore not met. We rejected this argument, stating as follows: The statutory language of Section 666 requires proof only that the accused be an agent of a local government that received in excess of $10,000 of federal funds in the one year period. The language neither explicitly nor implicitly requires that the $10,000 be directly linked to the program that was the subject of the bribe. 4 F.3d at 109. In a similar effort to honor Congress’s objective of protecting federal program funds even when their federal character is difficult to show, other Circuits have ruled that the government has no burden to trace the funds with respect to § 666(a)(l)(B)’s requirement that the “[jthing” have a value of at least $5,000. In United States v. Westmoreland, 841 F.2d 572 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), for example, the court stated that while the legislative history manifests a congressional intent to preserve the integrity of federal funds, Congress specifically chose to do so by enacting a criminal statute that would eliminate the need to trace the flow of federal monies and that would avoid inconsistencies caused by the different ways that various federal programs disburse funds and control their administration. Id. at 577. Noting that the subsection that establishes the “$5,000 or more” requirement does not mention federal funds, the court upheld the § 666 conviction of a county supervisor for taking bribes in connection with the granting of contracts for the maintenance of local roads and bridges although the funds corruptly disbursed were not shown to be federal funds. The court stated that “it is clear that Congress has east a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do.” United States v. Westmoreland, 841 F.2d" }, { "docid": "2305603", "title": "", "text": "corrupt transactions at issue affected only private or local monies, their conduct was not intended to be covered under § 666. In addition to legislative history, the defendants cite authority from other jurisdictions that purport to apply this restriction to crimes under § 666. See United States v. Wyncoop, 11 F.3d 119 (9th Cir.1993); United States v. Coyne, 4 F.3d 100 (2d Cir.1993), cert. denied, 510 U.S. 1095, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994); United States v. Cicco, 938 F.2d 441 (3d Cir.1991); and United States v. Westmoreland, 841 F.2d 572 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988). The government claims, however, that “[e]very court to have considered this issue has rejected defendant’s argument attempting to limit the scope of the statute.” Further, it argues that Westmoreland actually supports its position. We agree. First, in construing § 666, we agree with the following expression of the Fifth Circuit: [W]e find the relevant statutory language plain and unambiguous. By the terms of § 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp.1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification. Westmoreland, 841 F.2d at 576 (emphasis added). Other circuits have followed this approach and have established that the government is not required under § 666 to trace the flow of federal funds and assistance to any particular project, such as the airport concession programs. See United States v. Bonito, 57 F.3d 167, 172-73 (2d Cir.1995) (rejecting argument that there must be a link between the corrupt transaction and the" }, { "docid": "5620004", "title": "", "text": "fiduciary of ... an organization charged ... with administering monies or property derived from a federal program, and the recipient’s conduct is related to the administration of such pro-gram____” In short, the legislative history of S. 1630 is unhelpful because the proposed legislation actually contained express limitations to property or conduct related to a program directly funded by the federal government. The failure of the 98th Congress to include such a limitation in Section 666 hardly reflects an intent helpful to Coyne — in fact a contrary inference can be ■ drawn-much less an “extraordinary showing” of such an intent. In so concluding, we agree with the other circuits who have considered the question. In United States v. Little, 889 F.2d 1367 (5th Cir.1989), cert. denied, 495 U.S. 933, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990), the Fifth Circuit held that “if the agency received $10,-000 in any given year, then the agents were subject to Section 666. There is no requirement that the particular program be the recipient of the federal funds.” Id. at 1369 (citing United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.) (stating that Section 666 did not require “the government to trace federal funds to the tainted transactions of a local government agency covered by the statute”), cert. denied, 488 U.S. 820,109 S.Ct. 62, 102 L.Ed.2d 39 (1988)); see also United States v. Simas, 937 F.2d 459, 463 (9th Cir.1991). II. Deprivation of Money or Property on Mail Fraud Counts V and VI Appellant argues that his conduct relating to Counts V and VI, which concern the Kearney transactions, did not deprive Albany County citizens of “money or property.” The government concedes that at the time of the alleged conduct, the mail fraud statute reached only the deprivation of money or property interests. See McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); 18 U.S.C. § 1346 (1988) (adding “scheme or artifice to deprive another of the intangible right of honest services”). However, the evidence was sufficient to show a deprivation of money or property. With regard to the" }, { "docid": "7750503", "title": "", "text": "requires some other connection between the offense conduct and the expenditure of federal funds). Several of our sister circuits have addressed this more broad question. The Seventh Circuit has given § 666 a broad reading, ultimately concluding that “[i]t [was] not [its] part to trim § 666 by giving its text a crabbed reading.” United States v. Grossi, 143 F.3d 348, 350 (7th Cir.), cert. denied, 525 U.S. 879, 119 S.Ct. 185, 142 L.Ed.2d 151 (1998). Likewise, the Sixth Circuit has concluded that “18 U.S.C. § 666 does not require a nexus between the alleged bribes and the federal funding.” United States v. Dakota, 197 F.3d 821, 826 (6th Cir.1999). The Fifth Circuit also has eschewed any nexus requirement. In United States v. Westmoreland, 841 F.2d 572 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), a county supervisor was convicted of accepting bribes and kickbacks in connection with her duty to purchase supplies for the county’s highway construction projects. Id. at 573-74. The county received $222,949 in federal funds, but those funds were segregated and the alleged criminal activity did not affect or implicate federal monies. Id. 575. Nonetheless, the Fifth Circuit concluded that: [b]y the terms of section 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct in any transaction or matter or series of transactions or matters ... concerning the affairs of the local government agency. Id. at 576 (internal quotation omitted). The Fifth Circuit reaffirmed its position in United States v. Moeller, 987 F.2d 1134 (5th Cir.1993), concluding that § 666 required only a nexus between the offense conduct and the agency receiving federal funds and that this nexus was satisfied by § 666(b). Id. at 1137. It confirmed its position more recently in United States v. Lipscomb, 299 F.3d 303 (5th Cir.2002), in an opinion the court itself described as suffering from “tripartite fractionation.” Id. at 305 (Wiener, J.). Despite" }, { "docid": "10440578", "title": "", "text": "After reviewing the provision at issue, the plain language prompted the court in United States v. Westmoreland, 841 F.2d 572, 577 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), to hold that there was no need for the United States to trace stolen money, noting that any “reference to federal funds is conspicuously absent from the operative provision [contained in § 666(a) ].” Accord, United States v. Wyncoop, 11 F.3d 119 (9th Cir.1993); United States v. Coyne, 4 F.3d 100 (2d Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994); United States v. Simas, 937 F.2d 459 (9th Cir.1991); United States v. Little, 889 F.2d 1367 (5th Cir.1989), cert. denied, 495 U.S. 933, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990). The legislative history reveals that Congress intended that § 666 would close the gap identified in 18 U.S.C. § 641 which governs general theft of federal property, but only if the property stolen is property of the United States. S.Rep. at 3510. Because prosecution under § 641 was barred if the title to federal property passed to the recipient agency before the property was stolen or if federal funds were commingled with state funds, the language of § 666 did not specify that the funds misappropriated must be federal. Thus, we find that the statute does not require the government to demonstrate the federal character of the stolen property. The statute addresses the relationship between the federal government and the local government from which the property was stolen, not the relationship between the federal government and the converted property. Moreover, in focusing on the nonfederal entity rather than the property, Congress hoped to encourage local prosecutors to safeguard federal program monies, thereby alleviating yet another problem with protecting federal program funds that resulted because of state or local prosecutors’ reluctance to use their own resources to pursue criminal actions when the federal government was the principal party aggrieved. Congress stated that, in its opinion, “state and local prosecutors were often not inclined to commit their limited resources” because the injured" }, { "docid": "2305604", "title": "", "text": "agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct “in any transaction or matter or series of transactions or matters involving $5,000 or more concerning the affairs of’ the local government agency. 18 U.S.C. § 666(b) (Supp.1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification. Westmoreland, 841 F.2d at 576 (emphasis added). Other circuits have followed this approach and have established that the government is not required under § 666 to trace the flow of federal funds and assistance to any particular project, such as the airport concession programs. See United States v. Bonito, 57 F.3d 167, 172-73 (2d Cir.1995) (rejecting argument that there must be a link between the corrupt transaction and the protection of federal funds), cert. denied, - U.S. -, 116 S.Ct. 713, 133 L.Ed.2d 667 (1996); Coyne, 4 F.3d at 108-09 (stating that the plain language of § 666 “neither explicitly nor implicitly requires that the $10,000 be directly linked to the program that was the subject of the bribe”); United States v. Si-mas, 937 F.2d 459 (9th Cir.1991) (“The broad language of [§ 666] does not require a tracing of federal funds to the project affected by the bribe.”). Furthermore, the plain language of the statute merely requires that the payments be made to an agent of the State which “receives benefits in excess of $10,000 in any one year period.” Because the language in the statute is clear, it would be improper to look to the legislative history for clarification. Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 1149-50, 117 L.Ed.2d 391 (1992). We find the cases cited by defendants to be distin guishable or inapplicable. Accordingly, we decline the invitation to include the suggested \"connection to federal funds\"" }, { "docid": "5862954", "title": "", "text": "scheme.” King v. Burwell, 576 U.S. -, -, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 1300-01, 146 L.Ed.2d 121 (2000)); see also Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 1996, 124 L.Ed.2d 44 (1993) (It is a “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.”). In the end, “[statutory language is ambiguous if it is susceptible to more than one reasonable interpretation.” Med. Transp. Mgmt., 506 F.3d at 1368. Here, although the government offers a number of prudential objections to Chaf-in’s reading of § 666(c), it does not posit that the plain meaning of the phrase this section warrants applying subsection (e)’s exception to only certain parts of § 666. Nor does it contend that the legislative history justifies construing the exception’s scope narrowly. At the same time, as the Supreme Court notes, “Congress ordinarily adheres to a hierarchical scheme in subdividing statutory sections.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60, 125 S.Ct. 460, 467, 160 L.Ed.2d 389 (2004). After considering the overall statutory scheme, we conclude that the phrase “[t]his section” in § 666(c) is unambiguous and that the statutory scheme is consistent and coherent. Cf. Perry v. First Nat’l Bank, 459 F.3d 816, 820 (7th Cir.2006) (holding that the phrase this section in 15 U.S.C. § 1681m(h)(8) “unambiguously refers to [§ ] 1681m as a whole”). We thus hold that subsection (c)’s exception applies to subsection (b)’s federal-funds threshold. Accord Mills, 140 F.3d at 633 (“[T]he bona fide salary exception of subsection (c) must be read to apply to all of § 666.”); United States v. Nichols, 40 F.3d 999, 1000 (9th Cir.1994) (explaining that § 666(c) “excludes local agencies that receive federal funds only as ‘bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.’ ”). D. Chafin" }, { "docid": "2116182", "title": "", "text": "motive, since he paid the gratuities out of his own money and never intended to influence the supervisors. The jury in his trial did not believe him, but instead apparently found that the payments were rewards for past contracts and bait for the granting of future contracts. We will not disturb that verdict. Little also argues that the federal bribery statute should not apply in this case absent proof that the corruption cost would have to be replaced by federal funds. That is, section 666 applies only where the agency involved receives “benefits in excess of $10,000 under a Federal program” in any given year. Sec. 666(b). But this court in U.S. v. Westmoreland, 841 F.2d 572, 576 (5th Cir.), cert. denied, — U.S. —, 109 S.Ct. 62, 102 L.Ed.2d 39 (1989), rejected that argument in another prosecution under “Operation Pretense.” There, the court held that if the agency received $10,000 in any given year, then the agents were subject to Sec. 666. There is no requirement that the particular program be the recipient of the federal funds. Conclusion This Circuit’s construction of McNally defines “property” to include economic information, such as that denied Pontotoc and Monroe counties in this case. Further, future convictions under sec. 1341 will no longer require a substantive “property” loss, so we see no reason to change our Circuit precedent to require one for this ease alone. For these reasons and those stated above, Little’s conviction is in all things AFFIRMED. . The federal mail fraud statute, 18 U.S.C. § 1341, provides: \"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to [use the mails], shall be fined not more than $1000 or imprisoned not more than five years, or both.” . Decisions in other Circuits include the following cases: U.S. v. Ochs, 842 F.2d 515 (1st Cir.1988) (holding that a breach of fiduciary duty is not sufficient property deprivation to constitute" }, { "docid": "2116181", "title": "", "text": "floors. The counties may have been able to get the same materials for less than the maximum price allowed by law. Given this construction, Little’s conviction should stand in this Circuit. But Little makes much of the fact that other Circuits, construing McNally, disagree with the Fifth Circuit. He argues that we should abandon our line of cases to bring our Circuit into step with the others. We decline to do so, and note that the other Circuits are now required to be in line with us. Congress recently enacted 18 U.S.C. § 1346, which became effective November 18, 1988. This new section effectively overrules McNally by eliminating the requirement of property loss. Although Little’s conviction is not affected by section 1346, its passage ensures that this Circuit’s present mail fraud jurisprudence will in the future be the nation’s mail fraud jurisprudence. Bribery Little was convicted on numerous counts of violating 18 U.S.C. § 666, the federal bribery statute. He argues now that his convictions should be overturned because there was no proof of corrupt motive, since he paid the gratuities out of his own money and never intended to influence the supervisors. The jury in his trial did not believe him, but instead apparently found that the payments were rewards for past contracts and bait for the granting of future contracts. We will not disturb that verdict. Little also argues that the federal bribery statute should not apply in this case absent proof that the corruption cost would have to be replaced by federal funds. That is, section 666 applies only where the agency involved receives “benefits in excess of $10,000 under a Federal program” in any given year. Sec. 666(b). But this court in U.S. v. Westmoreland, 841 F.2d 572, 576 (5th Cir.), cert. denied, — U.S. —, 109 S.Ct. 62, 102 L.Ed.2d 39 (1989), rejected that argument in another prosecution under “Operation Pretense.” There, the court held that if the agency received $10,000 in any given year, then the agents were subject to Sec. 666. There is no requirement that the particular program be the recipient of" }, { "docid": "16820498", "title": "", "text": "agent of an organization or of a State, local or Indian tribal government, or agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.... shall be fined under this title, imprisoned not more than 10 years, or both, (b) The circumstances referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of federal assistance. 18 U.S.C. § 666. In United States v. Westmoreland, we said that § 666 “limits its reach to entities that receive a substantial amount of federal funds and to agents who have the authority to effect such significant transactions.” 841 F.2d at 578. In that case, the defendant was convicted of receiving kickbacks on purchases he made for the county government. We upheld the conviction, noting that the defendant “served as a county supervisor” and that the county “received federal revenue sharing funds.” Id. at 575. Later, in United States v. Moeller, 987 F.2d 1134 (5th Cir.1993), we further delineated the reach of § 666, concluding that the “particular program involved in the theft or bribery scheme need not be the recipient of federal funds,” id. at 1137 (citing United States v. Little, 889 F.2d 1367 (5th Cir.1989)). There, the defendants worked for the Texas Federal Inspection Service (“TFIS”), an agency jointly supervised by the Texas Department of Agriculture (“TDA”) and the United States Department of Agriculture. The defendants were alleged to have improperly awarded consulting contracts to supporters of candidates for TDA commissioner. One defendant was an associate director of TFIS; the other held various managerial positions. The district court dismissed the indictment, concluding that TFIS did not receive the statutory amount in federal benefits. On appeal, we reversed, concluding that it was enough that the TDA, which in part was responsible for TFIS, received the level of federal funding required under § 666. Id. at 1137. Applying" }, { "docid": "3316739", "title": "", "text": "or more; shall be fined under this title, imprisoned not more than 10 years, or both, (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant,contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. 18 U.S.C. § 666(a, b). . After the dismissal, the government impaneled a new grand jury that indicted the LaHues for the same alleged conduct under an anti-kickback statute, 42 U.S.C. § 1320a-7b, which criminalizes the acceptance of bribes for Medicare patient referrals. . Part A concerns institutional health providers (hospitals, nursing homes, rural health clinics) and is funded out of Social Security taxes. Payment by Medicare under Part A for services rendered by a hospital or other institution may only be made to the institution, and the institution may not bill the patient directly, except for deductibles and coinsurance. Part A is not implicated under the government’s theory in this case. . We note in this regard that in United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039 (5th Cir.1984), the court expressly grounded its holding on the legislative history of the anti-discrimination statutes, judicial decisions construing them, and regulations adopted under them. See id. at 1042. . We note that § 666(c) refines § 666(b) by carving out certain transactions in the ordinary course of business: \"This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” 18 U.S.C. § 666(c). Cf. United States v. Copeland, 143 F.3d 1439 (11th Cir.1998) (holding § 666(b) inapplicable to defense contractor without referencing § 666(c)). Neither the parties nor the district court addressed § 666(c), however. Since there are no circuit cases addressing § 666(c)'s application to § 666(b), we leave that analysis for another day. See United States v. Grossi, 143 F.3d 348, 350-51 (7th Cir.1998) (declining to decide whether certain payments have met § 666(c) requirements where the parties did not" }, { "docid": "9335546", "title": "", "text": "new statute, section 666, was intended to fill these gaps and “protect the integrity of the vast sums of money distributed through federal programs from theft, fraud, and undue influence by bribery.” Id. at 3511. The emphasis was on protecting federal funds. The report lists three specific cases to which section 666 was intended to apply. In each of these cases, there was an issue as to whether an individual administering federal funds was a “federal official” who could be prosecuted under section 201. There is no indication in the history of section 666 that Congress intended federal law enforcement agencies to police the financial affairs of private entities that do not administer federal funds. The legislative history therefore supports the defendant’s contention that the statute was not intended to cover thefts from institutions like Trend College that do not themselves receive and administer federal funds. The leading case in this circuit interpreting section 666 is United States v. Simas, 937 F.2d 459 (9th Cir.1991), where we held, fully in keeping with the statute’s legislative history, that in order to obtain jurisdiction of a defendant under section 666, the government need not prove that the funds actually stolen by the defendant were of federal origin. So long as the defendant is an agent of an organization that receives more than $10,000 in federal benefits in any given year, it is not necessary that the particular funds stolen be among those “benefits.” See also United States v. Coyne, 4 F.3d 100 (2d Cir.1993) (establishing the same rule in the Second Circuit). In Simas we quoted with approval the opinion of the Fifth Circuit in United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), which had said: “[A]ny reference to federal funds is conspicuously absent from the operative provisions, and it is clear that Congress has cast a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do.” Id. at 577. We stressed in Simas that when Congress enacted section 666, it" }, { "docid": "9335547", "title": "", "text": "history, that in order to obtain jurisdiction of a defendant under section 666, the government need not prove that the funds actually stolen by the defendant were of federal origin. So long as the defendant is an agent of an organization that receives more than $10,000 in federal benefits in any given year, it is not necessary that the particular funds stolen be among those “benefits.” See also United States v. Coyne, 4 F.3d 100 (2d Cir.1993) (establishing the same rule in the Second Circuit). In Simas we quoted with approval the opinion of the Fifth Circuit in United States v. Westmoreland, 841 F.2d 572, 576 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), which had said: “[A]ny reference to federal funds is conspicuously absent from the operative provisions, and it is clear that Congress has cast a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do.” Id. at 577. We stressed in Simas that when Congress enacted section 666, it intended to “protect federal funds by preserving the integrity of the entities that receive the federal funds rather than requiring the tracing of federal funds to a particular illegal transaction.” 937 F.2d at 463. In this case, however, the defendant was employed by an entity that never received any federal funds under the loan programs. Trend College itself received only the indirect benefits associated with increased enrollment of students receiving private loans induced by federal guarantees to the private lenders. Thus, applying section 666 to defendant’s misdeeds would not further the recognized purpose of section 666. The purpose and the language of section 666 are very different from the statute being construed in Grove City College v. Bell, 466 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), on which the district court heavily relied. There, the Court dealt not with a criminal statute, but with civil statutes and regulations designed to eliminate sex discrimination in institutions of higher learning. The statute in question, section 901(a) of Title IX of the Education Amendments of 1972," } ]

[ { "docid": "22601966", "title": "", "text": "of Appellant 19. Having neither the authority nor the inclination to do so, we decline to intrude upon the verdicts. D. Louthian also challenges his below-Guidelines sentence of forty-eight months as being excessive, in view of his age, poor health, and lack of a criminal history. For those reasons, he argues, the district court ought to have departed downward. We are unable, however, to review a sentencing court’s decision not to depart unless the court mistakenly believed that it lacked the authority to do so. See United States v. Brewer, 520 F.3d 367, 371 (4th Cir.2008). Before pronouncing sentence, the court recognized its obligation to “consider any applicable departure policy statements by the Sentencing Commission.” J.A. 1056. The court then considered Louthian’s request for a downward departure under the Guidelines, but concluded that none was appropriate. Because the court understood its authority, but declined to exercise it on the facts of this case, Louthian cannot contest on appeal the court’s failure to depart downward. To the extent that Louthian challenges his sentence as otherwise unreasonable, we are unmoved. We review a court’s sentencing decisions for abuse of discretion only. See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Any sentence that is within or below a properly calculated Guidelines range is presumptively reasonable. See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008). Such a presumption can only be rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors. . See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.2006). Louthian makes no assertion that his forty-eight-month sentence was tainted by procedural flaws, such as errors in calculating the Guidelines range, erroneously treating the Guidelines as mandatory, failing to properly consider the § 3553(a) factors, predicating the sentence on clearly erroneous facts, or failing to adequately explain the sentence. See Gall, 552 U.S. at 51, 128 S.Ct. 586. Meanwhile, we cannot conclude that his sentence was substantively unreasonable. See United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010). We observe that, although" } ]

[ { "docid": "20253985", "title": "", "text": "sentence run consecutively to the undischarged portion of his 30-year Texas murder sentence. “On appeal, we will review a sentence for an abuse of discretion, giving due deference to the district court’s decision.” United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008)(citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. If the sentence is procedurally sound, we “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,” and we “may ... apply a presumption of reasonableness” to a sentence within the advisory Guidelines range. Id. A district court’s decision to impose a consecutive sentence is similarly reviewed for reasonableness. See United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006). After reviewing the record, we can discern no procedural error in the court’s imposition of a 235-month sentence. The district court properly calculated Lomeli’s offense level and criminal history and correctly determined Lomeli’s advisory Guidelines sentencing range. The court then considered the 18 U.S.C. § 3553(a) factors in arriving at the sentence it deemed appropriate, and adequately explained its reasons for sentencing Lomeli at the top of the advisory Guidelines range, citing the seriousness of Lomeli’s past criminal conduct, the fact that this was his second drug-related conviction, and the fact that he is a violent and threatening person. As we explained above, it was not error for the court to consider Lomeli’s criminal history as this did not violate the U.S.-Mexico Extradition Treaty. We next turn to the question of whether the district court committed procedural error in ordering Lomeli’s sentence to run consecutively to the undischarged portion of his Texas" }, { "docid": "2245761", "title": "", "text": "has shown the necessary connection by proving that Lawing was both the owner and driver of the car in which the ammunition was found and by showing that his identification card was beneath the ammunition. See United States v. Singleton, 441 F.3d 290, 296 (4th Cir.2006) (“A person has constructive possession over contraband when he has ownership, dominion, or control over the contraband itself or over the premises or vehicle in which it [is] concealed.”) (quoting United States v. Armstrong, 187 F.3d 392, 396 (4th Cir.1999) (emphasis added)). In light of the fact-specific nature of the constructive possession inquiry, we conclude that these facts were sufficient evidence from which a jury could conclude Lawing possessed the ammunition. Accordingly, the district court did not err in denying the motions to dismiss. C. Lawing lastly contends his sen tence was procedurally unreasonable, contending the district court abused its discretion in finding by a preponderance of the evidence that he possessed a sawed-off shotgun as described by 26 U.S.C. § 5845(a). As a consequence, Lawing argues the district court used the incorrect base offense level, 26, in calculating his advisory Guidelines range. We review a district court’s sentencing decisions for reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). When reviewing whether a district court properly calculated the Guidelines range we “review the district court’s legal conclusions de novo and its factual findings for clear error.” United States v. Layton, 564 F.3d 330, 334 (4th Cir.2009). A sentence is procedurally unreasonable if the district court committed a “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence[.]” Gall, 552 U.S. at 51, 128 S.Ct. 586. “A verdict of acquittal demonstrates only lack of proof beyond a reasonable doubt; it does not necessarily establish the defendant’s innocence.” United States v. Isom, 886 F.2d 736, 738 (4th Cir.1989)." }, { "docid": "3757873", "title": "", "text": "also believes his life sentence is not reasonable in comparison with those imposed on four codefendants who entered guilty pleas and were sentenced to 156 months, 180 months, 108 months, and 132 months, respectively. He succinctly describes the sentencing range he believes is justified by the evidence as follows: “[ a] sentence higher than what the codefendants who pled [guilty] but lower than what the leader [i.e., Ayala] received would have been a ‘reasonable’ sentence.” The government predictably argues that the district court properly followed sentencing procedures and that the sentence is not unreasonable given that it is in accordance with the sentencing guidelines and is appropriate to Cruz’s role in the drug conspiracy. We deal with these challenges seriatim. a. Standard of Review The Supreme Court has clearly delineated the nature and scope of our review of the district judge’s sentencing decision. “[A]ppellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Our “ ‘review process is bifurcated: we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable.’ ” United States v. Leahy, 668 F.3d 18, 21 (1st Cir.2012) (quoting United States v. Clogston, 662 F.3d 588, 590 (1st Cir.2011)). We employ the abuse of discretion standard in reviewing claimed procedural errors and in our consideration of the sentence’s substantive reasonableness. United States v. Politano, 522 F.3d 69, 72 (1st Cir.2008). And we take into account the totality of the circumstances surrounding both procedural and substantive reasonableness. Gall, 552 U.S. at 51, 128 S.Ct. 586. We take up consideration of the procedural and substantive reasonableness of Cruz’s sentence in turn. b. Procedural Reasonableness When we review a sentence’s procedural reasonableness, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen" }, { "docid": "22820282", "title": "", "text": "programs while in prison. Brooks now appeals his overall sentence of 295 months’ imprisonment. II. ANALYSIS Brooks argues that his sentence is unreasonable for four reasons, the last three of which he raises for the first time on appeal: 1. The district court did not address his argument for a lower sentence based on his drug problem, depression, sexual addiction, and the abuse that he suffered as a child. 2. The district court failed to consider the § 3553(a) factors and to adequately explain its reasons for the chosen sentence. 3. “The flaws in the creation of [U.S.S.G.] § 2G2.2” — namely, that it is based on “a series of politically driven congressional amendments aimed at increasing the length of sentences imposed” rather than being based on empirical data — “and its cross-reference to [U.S.S.G.] § 2G2.1 produced a disproportionately punitive sentence.” 4. The district court gave an unreasonable amount of weight to the nature- and seriousness-of-the-offense factors of 18 U.S.C. § 3553(a). We address each argument in turn below after discussing the applicable standard of review. A. Standard of review Criminal sentences must be both procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Challenges to the reasonableness of a sentence are reviewed under the deferential abuse-of-discretion standard. United States v. Novales, 589 F.3d 310, 314 (6th Cir.2009). We “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) fac tors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court’s legal interpretation of the Guidelines are reviewed de novo, but its factual findings will not be set aside unless they are clearly erroneous. United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007). “Although the district court need not explicitly reference each of the § 3553(a) factors, there must be sufficient evidence in the record to affirmatively" }, { "docid": "22850269", "title": "", "text": "using an abuse-of-discretion standard, regardless of “whether [the sentence is] inside, just outside, or significantly outside the Guidelines range.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Our reasonableness review has procedural and substantive components.” United States v. Boulware, 604 F.3d 832, 837 (4th Cir.2010). First, we must determine whether the district court committed any procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586. Only if we determine that the district court has not committed procedural error do we proceed to assess “the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. Appellants argue that the district court committed procedural error because it offered no individualized rationale to justify the sentences it imposed. We are constrained to agree. Because we conclude that the sentences were procedurally unreasonable, we address only the procedural component in this case. A. Section 3553 contains an overarching provision instructing district courts to “impose a sentence sufficient, but not greater than necessary,” to accomplish the goals of sentencing, including “to reflect the seriousness of the offense,” “to promote respect for the law,” “to provide just punishment for the offense,” “to afford adequate deterrence to criminal conduct,” and “to protect the public from further crimes of the defendant.” Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting 18 U.S.C. § 3553(a)). The statute requires a sentencing court to consider numerous factors, such as the Guidelines sentencing range, “the nature and circumstances of the offense,” “the history and characteristics of the defendant,” “any pertinent policy statement” from the Sentencing Commission, and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a); see Kimbrough, 552 U.S. at 101," }, { "docid": "22924884", "title": "", "text": "but denied his other two objections. After applying a full three-level reduction for acceptance of responsibility under U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 3E1.1, the district court determined that the total offense level was 34 and the criminal history category was VI, which yielded a Guidelines range of 262 to 327 months. Acknowledging the advisory nature of the Guidelines, the district court then sentenced defendant to a term of 300 months’ imprisonment. Defendant timely appealed his sentence. II Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court’s sentencing decisions “under a deferential abuse-of-discretion standard,” for reasonableness. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007); United States v. Stephens, 549 F.3d 459, 464 (6th Cir.2008). This inquiry consists of both a procedural and a substantive component. Gall, 128 S.Ct. at 597. First, we must “ensure that the district court committed no significant procedural error.” Id. A sentence is procedurally unreasonable if the district court fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain the chosen sentence. Id. We review the district court’s application of the Sentencing Guidelines de novo and the district court’s findings of fact at sentencing for clear error. United States v. Hunt, 487 F.3d 347, 350 (6th Cir.2007). If the sentence is proeedurally sound, we then must consider “the substantive reasonableness of the sentence imposed.” Gall, 128 S.Ct. at 597. A sentence is substantively unreasonable if the district court “selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir.2008). Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable presumption of substantive reasonableness on appeal. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.2008) (en banc); see also Rita v. United States, 551 U.S. 338, 127 S.Ct." }, { "docid": "22757363", "title": "", "text": "Cir. 2006), for the proposition that “when selecting a sentence outside of the correctly-calculated guideline range, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.” (Appellant’s Br. 15) (quotations omitted). Diosdado-Star asserts Moreland requires “that a court first look to the guidelines’ departure provisions before varying,” (Appellant’s Br. 16), and that this requirement was not overruled by the Supreme Court’s subsequent decision in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Diosdado-Star further contends that he was prejudiced by the district court’s decision to impose a variance rather than a departure because he “had no opportunity to argue against being placed in a higher criminal history category.” (Appellant’s Br. 19). Diosdado-Star also asserts that his sentence is substantively unreasonable because “the extent of the variance ... lacked the ‘compelling’ reasons required to justify sentences that substantially deviate from the advisory guideline range.” (Appellant’s Br. 20-21). This Court reviews a sentence for reasonableness, applying an abuse of discretion standard. Gall, 552 U.S. at 51,128 S.Ct. 586. In reviewing the reasonableness of a sentence, “[w]e must ‘first ensure that the district court committed no significant procedural error....’” United States v. Morace, 594 F.3d 340, 345 (4th Cir.2010) (quoting Gall, 552 U.S. at 51,128 S.Ct. 586). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. “If we find no significant procedural error, we must ‘then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’” Mo-race, 594 F.3d at 345^16 (quoting Gall, 552 U.S. at 51,128 S.Ct. 586). A. Diosdado-Star relies heavily on our decision in Moreland to support his argument that the district court procedurally erred by imposing a variant sentence instead of first applying applicable departure provisions from the Guidelines. In More-land we" }, { "docid": "22427553", "title": "", "text": "rights by penalizing him for exercising a constitutional right. Since the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the federal Sentencing Guidelines have been “effectively advisory,” id. at 245, 125 S.Ct. 738, and appellate review of district court sentences has been for “reasonableness.” In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court explained that appellate review for “reasonableness” involves both procedural and substantive components. The Court first reviews for procedural reasonableness, ensuring] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C. § ] 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Id. at 51, 128 S.Ct. 586. Once the reviewing court determines that the sentence is procedurally reasonable, it proceeds to the second component of the analysis, the substantive reasonableness of the sentence. Id. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness .... 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. Id. Hargrove does not raise any issues challenging the procedural reasonableness of his sentence. Accordingly, we proceed to the substantive reasonableness of his sentence. Ordinarily, we review the substantive reasonableness of a sentence for abuse of discretion. Id. However, the record shows that Hargrove did not object to the district court’s explanation of the sentence imposed. For this reason, the Government asserts that we should review under plain error and relies on this Court’s decision in United States v. Lynn, 592 F.3d 572 (4th Cir.2010), to support its" }, { "docid": "4967123", "title": "", "text": "sentencing memorandum, the court determined that Jones’s offense level was 27 and that with a criminal history category V, his advisory guideline range was 120 to 150 months’ imprisonment. The court then turned to 18 U.S.C. § 3553(a), listed each factor, and explained its view that a guideline sentence was not sufficient. It discussed the nature and circumstances of the offense, Jones’s criminal history and personal characteristics, the seriousness of the offense, the need to protect the public from Jones, and his risk of recidivism. The court found that the § 3553(a) considerations warranted a 30-month upward variance, and imposed a 15-year sentence. As for Hawkins, the court authored a twenty-six-page sentencing memorandum addressing several enhancements to Hawkins’s base offense level. The court determined that Hawkins’s total offense level was 32. With a criminal history category I, Hawkins’s advisory range was 121 to 151 months. The court then addressed the § 3553(a) factors and imposed a 121-month sentence. Finally, the court explained that even if it erred by applying enhancements for use of a minor and obstruction of justice, it would impose a 121-month sentence based on § 3553(a). II. Discussion “[W]e review the imposition of sentences, whether inside or outside the Guidelines range, [under] a deferential abuse-of-discretion standard.” United States v. Hayes, 518 F.3d 989, 995 (8th Cir.2008) (quotation omitted). We “must first ensure that the district court committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Procedural error includes “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Id. “In the absence of procedural error below, we ‘should then consider the substantive rea sonableness of the sentence imposed under an abuse-of-discretion standard.’ ” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A. Appellant Chad Jones Jones challenges" }, { "docid": "22169135", "title": "", "text": "United States v. Foley, 508 F.3d 627, 634 (11th Cir.2007). 2. Under the abuse of discretion standard, we review a district court’s choice of sentence, including the decision to not impose a fine lower than that recommended by the Sentencing Guidelines, for procedural and substantive unreasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Suarez, 601 F.3d 1202, 1223 (11th Cir.2010). To ensure that a sentence is not procedurally unreasonable, we determine whether the district court committed a significant error “such as failing to calculate (or improperly calculating) the Guide lines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence ....” Gall, 552 U.S. at 51, 128 S.Ct. at 597. Although the district court must consider the § 3553(a) sentencing factors, it is not a requirement that it “state on the record that it has explicitly considered each of the section 3553(a) factors or to discuss each of [them].” United States v. McNair, 605 F.3d 1152, 1231 (11th Cir. 2010). When reviewing the district court’s decision for substantive reasonableness, we determine the range of reasonable sentences dictated by the facts of the case, taking into account the totality of the circumstances and giving deference to the district court. See id. “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, 552 U.S. at 51, 128 S.Ct. at 597, “The burden of establishing unreasonableness belongs to the party challenging the sentence.” Suarez, 601 F.3d at 1223. Bio-Med’s fine is procedurally reasonable. The district court said that it “considered the factors set forth in federal law that deal with sentencing, specifically 18 U.S.C. [§ ] 3553(a)” and sentenced Bio-Med “pursuant to the Sentencing Reform Act of 1984.” Any errors in calculating the Guidelines sentencing range were harmless, and the court imposed the correct statutory maximum fine. The fine is also substantively reasonable. In contending that" }, { "docid": "22147501", "title": "", "text": "U.S.C.A. § 3553(a) (West 2000 & Supp.2009). See Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.2008). Sentencing courts are statutorily required to state their reasons for imposing sentence. See 18 U.S.C.A. § 3553(c) (West Supp.2009). Although a comprehensive, detailed opinion is not necessarily required, the court’s explanation must nonetheless be sufficient “to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (“After settling on the appropriate sentence, [the district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”). District courts have “sizeable discretion” when sentencing, Abu Ali 528 F.3d at 266, and appellate review is limited to determining whether the sentence imposed is reasonable, see Gall, 552 U.S. at 40-41, 128 S.Ct. 586. An appellate court’s reasonableness review has procedural and substantive components. The procedural component requires us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Id. at 51, 128 S.Ct. 586. The substantive component of reasonableness review requires us to “take into account the totality of the circumstances.” Id. While we may consider the extent of any variance from the advisory Guidelines range, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. Given the institutional advantages of district courts with regard to sentencing matters, see United States v. Evans, 526 F.3d 155, 166 (4th Cir.), cert. denied, — U.S.-, 129 S.Ct." }, { "docid": "23202315", "title": "", "text": "five-year mandatory minimum would be “unfair and unreasonable.” Id. at 411-12. The government appealed, and Grober cross-appealed. The government argues that the District Court committed procedural error by not adequately addressing its arguments before rejecting the sentencing range § 2G2.2 recommended for Grober. Importantly, the government does not argue that the Court lacked the authority to disagree with § 2G2.2 on policy grounds or that the sentence the Court imposed is substantively unreasonable. Grober argues that the District Court incorrectly believed that it was required to impose the statutory mandatory minimum sentence. II. Jurisdiction and Standard of Review The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review sentences for abuse of discretion, and review them for both procedural and substantive reasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). Where a claim of procedural unreasonableness has been made, we must ensure “that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). For a sentence to be procedurally reasonable, a district court must demonstrate “meaningful consideration of the relevant statutory factors and the exercise of independent judgment,” United States v. Grier, 475 F.3d 556, 571-72 (3d Cir.2007) (en banc), and “respond to colorable arguments with a factual basis in the record,” United States v. Merced, 603 F.3d 203, 224 (3d Cir.2010). A major variance from the Guidelines requires a more significant justification than a minor one. Gall, 552 U.S. at 50, 128 S.Ct. 586. We will affirm a procedurally sound sentence as substantively reasonable “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons" }, { "docid": "7247982", "title": "", "text": "all based on the premise that the district court erred in concluding that Oehne did not invoke his Fifth Amendment rights. Because the district court did not err in reaching this conclusion, Oehne’s challenge to the district court’s denial of his motion to suppress physical evidence obtained from the search of his residence must fail as well. We turn next to Oehne’s challenge to the district court’s sentence. We review all sentences using a “deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (internal quotation marks omitted). Our review has “two components: procedural- review and substantive review.” Id. We “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to’ adequately explain the chosen sentence — including an explanation for any deviation from the. Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We then review the substantive reasonableness of the sentence and reverse only when the district court’s sentence “cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted). None of Oehne’s challenges to the procedural reasonableness of the district court’s sentence is colorable. The district court correctly found that because Oehne pled guilty to two counts which together carry a statutory maximum penalty of fifty years, the guidelines sentence was fifty years or 600 months. See U.S.S.G. § 5Gl.l(a) (“Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”). Oehne does not argue that this calculation was improper. Nor does he contend that the district court improperly treated the Guidelines as mandatory, as the district court explicitly acknowledged that it was not bound by the Guidelines. In fact, the Guidelines recom mended life imprisonment. Moreover, contrary to Oehne’s suggestion on appeal and as explained further below," }, { "docid": "19609827", "title": "", "text": "support the district court's finding, and because we give due deference to the district court's conclusion that the leadership enhancement applies, the district court did not err in applying the leadership enhancement in this case. Accordingly, we affirm the district court's application of the enhancement. III. Substantive Reasonableness Standard of Review This Court reviews sentencing decisions deferentially for abuse of discretion. Gall v. United States , 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Analysis This Court reviews a sentence for reasonableness. United States v. Payton , 754 F.3d 375, 377 (6th Cir. 2014). \"This review has two components: procedural reasonableness and substantive reasonableness.\" United States v. Solano-Rosales , 781 F.3d 345, 351 (6th Cir. 2015). A district court commits a procedural error by \"failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.\" Gall , 552 U.S. at 51, 128 S.Ct. 586. To be substantively reasonable, the sentence \"must be proportionate to the seriousness of the circumstances of the offense and offender, and sufficient but not greater than necessary, to comply with the purposes of § 3553(a).\" United States v. Vowell , 516 F.3d 503, 512 (6th Cir. 2008) (citation and internal quotation marks omitted). \"A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant factors, or gives an unreasonable amount of weight to any pertinent factor.\" United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008) (citing United States v. Webb , 403 F.3d 373, 385 (6th Cir. 2005) ). We \"afford[ ] a rebuttable presumption of reasonableness to a properly calculated, within-Guidelines sentence.\" United States v. Graham , 622 F.3d 445, 464 (6th Cir. 2010) (citing United States v. Vonner , 516 F.3d 382, 389-90 (6th Cir. 2008) (en banc) ). The district court sentenced Sexton to the middle of the Guidelines range after explicitly mentioning and reviewing a number" }, { "docid": "22076639", "title": "", "text": "court concluded that, in order to deter Rivera-Santana, properly protect the public, and promote respect for the law, it was obliged to vary upward to the statutory maximum and impose a sentence of 240 months in prison. The court entered its judgment order on October 8, 2010, and Rivera-Santana has timely appealed. We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). II. We review for reasonableness a sentence imposed by a district court. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In undertaking such a review, “we must first ensure that the district court committed no significant procedural error,” such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” United States v. Diosdado-Star, 630 F.3d 359, 363 (4th Cir.2011) (internal quotation marks omitted). Absent a significant procedural error, our next step is to assess the substantive reasonableness of the sentence imposed. See id. In either event, a “deferential abuse-of-discretion standard” applies to “any sentence, whether inside, just outside, or significantly outside the Guidelines range.” See United States v. Savillon-Matute, 636 F.3d 119, 122 (4th Cir.2011) (internal quotation marks omitted). III. Rivera-Santana maintains on appeal that his sentence is both procedurally and substantively unreasonable. His procedural challenges arise from three separate decisions made by the sentencing court: (1) the upward departure under Guidelines section 4A1.3(a), departing from the PSR-recommended Guidelines range of 57 to 71 months to an advisory Guidelines range of 77 to 96 months (the “criminal history category departure”); (2) the upward departure under Guidelines section 4A1.3(a)(4)(B), further departing to an advisory Guidelines range of 120 to 150 months (the “offense level departure”); and (3) the upward variance, pursuant to 18 U.S.C. § 3553(a), resulting in the statutory maximum of 240 months. Rivera-Santana identifies four instances of procedural error attributable to the two departures" }, { "docid": "15621925", "title": "", "text": "the fire at JB’s Foods in April 2004, but not necessarily in regard to other alleged crimes, does not undermine the jury’s verdict that Bazazpour aided and abetted arson of JB’s Foods on April 22, 2004. C. Challenge to the Reasonableness of the Sentence In his final appellate issue, Bazazpour wages a multi-pronged attack on the effective 240-month prison sentence that the district judge imposed upon him. He contends that the district court erred in calculating his base offense level; that the court should have reduced his sentence due to the duress under which Bazazpour was operating; that the court improperly considered him to be a manager or supervisor of the offenses; and that the court erred in enhancing his sentence for obstruction of justice. We review a district court’s imposition of a sentence for reasonableness, using the deferential abuse-of-discretion standard. See United States v. Pearce, 581 F.3d 874, 384 (6th Cir.2008). Such review “has both a procedural and a substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. A review for substantive reasonableness “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Furthermore, “we may apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce, 531 F.3d at 384, and may not reverse a district court’s sentencing determination simply because we “might reasonably have concluded that a different sentence was appropriate.” Gall, 552 U.S. at 51, 128 S.Ct. 586. 1.Calculation of the loss We first address Bazazpour’s assertion that the district court applied the wrong base offense level under the Guidelines. He claims that" }, { "docid": "20713470", "title": "", "text": "that is something less than knowledge. Finally, we note that we have approved the giving of this instruction “ ‘to show a conspirator’s knowledge of the unlawful aims of a conspiracy.’ ” Williams, 612 F.3d at 508 (quoting United States v. Warshawsky, 20 F.3d 204, 210 (6th Cir.1994), superseded on other grounds as stated in United States v. Myint, 455 Fed.Appx. 596, 604 (6th Cir.2012)). B. Sentencing Mr. Mitchell raises also various objections to the sentence imposed by the district court. We review his sentence for reasonableness, both procedural and substantive, for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cunningham, 669 F.3d 723, 728 (6th Cir.2012). We must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586; see also Cunningham, 669 F.3d at 728 (“Procedural reasonableness review begins with a robust review of the factors evaluated and the procedures employed by the district court in reaching its sentencing deter mination.” (internal quotation marks omitted)). We then consider the substantive reasonableness of the sentence under the totality of the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. 586. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.” Cunningham, 669 F.3d at 733. We give deference to the district court’s sentence to the extent it is justified by the § 3553(a) factors, and we may presume that a within-guidelines sentence is reasonable. Id. 1. Procedural Reasonableness Mr. Mitchell contends that the district court erred by failing to depart downward under United States Sentencing Guideline § 5H1.6, the" }, { "docid": "7733821", "title": "", "text": "failed to give proper weight to the age of Marin-Castano’s 1985 conviction, in accordance with the 18 U.S.C. § 3553(a) factors. We disagree. We find neither procedural error, nor substantive unreasonableness with regard to the district court’s imposed sentence of 46 months’ imprisonment. Because Marin-Castano argues that the court committed both procedural and substantive error, we employ more than one standard of review. First, we conduct a de novo review for any procedural error. United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010). If we determine that the district court committed no procedural error, we review the sentence for substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this circuit, we do apply a presumption of reasonableness to all within-Guidelines sentences. It is not a binding presumption, but it applies in every case and it is the defendant’s burden to overcome it. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (an appellate court may apply a presumption of reasonableness to a within-Guidelines sentence) (citing Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); United States v. Vizcarra, 668 F.3d 516, 527 (7th Cir.2012) (holding that a properly calculated Guidelines sentence is presumed to be reasonable). When addressing a party’s nonMvolous argument, the sentencing court commits procedural error if it “fail[s] to calculate (or improperly calculates]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the 18 U.S.C. § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court must say enough to “satisfy the appellate court that it has considered the parties’ arguments and has a reasoned basis for exercising its own legal decisionmaking authority.” Rita, 551 U.S. at 356, 127 S.Ct. 2456. Furthermore, “the court must address the defendant’s principal arguments that are not so weak as to not merit discussion” United States v. Pulley, 601 F.3d 660, 667 (7th Cir.2010) (citing United States v. Villegas-Miranda, 579" }, { "docid": "9678421", "title": "", "text": "her final issue on appeal, Cure-ton challenges the appropriateness of her 90-month prison sentence. She argues that the district court relied upon an improper presentence investigation report in calculating her Guidelines range and that she should have been deemed a minimal participant, rather than a minor participant, in the conspiracy. She further alleges that when formulating her sentence, the district court failed to give due consideration to the abuse she suffered as a child and erred in basing the sentence on the fact that “actual” methamphetamine was distributed in furtherance of the conspiracy without any expert testimony to establish the purity of the drug. We review a district court’s imposition of a sentence for reasonableness, employing a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008). Such a reasonableness review “has both a procedural and a substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. A review for substantive reasonableness “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. “A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). Furthermore, “we may apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce, 531 F.3d at 384, and may not reverse a district court’s sentencing determination simply because we “might reasonably have concluded that" }, { "docid": "22808446", "title": "", "text": "mandating our holding in Alston are not present here. Accordingly, we agree with the Third Circuit that a sentence imposed following an Alford plea qualifies as a “prior sentence” within the meaning of U.S.S.G. § 4A1.2. See Mackins, 218 F.3d at 269. IV. King additionally argues that the district court imposed a procedurally unreasonable sentence by granting the government’s motion for an upward variance and imposing sentence, without providing an adequate explanation at the sentencing hearing. We conclude that the district court did not err. We review any sentence, whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). However, we must first ensure that the district court has not committed any “significant procedural error,” which includes “failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” United States v. Carter, 564 F.3d 325, 328 (4th Cir.2009) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). The district court must select a sentence based on an “individualized assessment” of the facts presented. Gall, 552 U.S. at 50, 128 S.Ct. 586. Every sentence requires an adequate explanation. United States v. Hernandez, 603 F.3d 267, 271 (4th Cir.2010). When the district court imposes sentence within the Guidelines, “the explanation need not be elaborate or lengthy.” Id. However, when a district court applies a departure provision or variance from the Guidelines range based upon the 18 U.S.C. § 3553(a) factors, “the district court must give ‘serious consideration to the extent’ of the departure or variance, and ‘must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.’” United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir.2011) (quoting Gall, 552 U.S. at 46, 50, 128 S.Ct. 586). The district court must “state in open court” the particular reasons supporting its chosen sentence. 18 U.S.C. § 3553(c). King’s argument that he received a procedurally unreasonable sentence is refuted by the record before us. At the sentencing hearing," } ]

[ { "docid": "11516720", "title": "", "text": "the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter or subchapter III of this chapter. § 1106 Prohibited Transactions (b) Transactions between plan and fiduciary A fiduciary with respect to a plan shall not— (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries. The district court, however, did not reach the merits of Allinder’s breach of fiduciary duty claim. Instead, it relied on Tassinare v. American Nat. Ins. Co., 32 F.3d 220 (6th Cir.1994), for the proposition that the fiduciary duties imposed by ERISA on administrators runs only to the plan itself, as opposed to the individual plan participants. Id. at 222. Because Allinder sought to recover damages from ICP for her own personal benefit, the district court held that she failed to state a claim for a breach of fiduciary duty under § 1132(a)(3). Such reliance upon Tassinare, however, is misplaced because of the Supreme Court’s subsequent decision in Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). In Vanity, the Supreme Court squarely held that § 1132(a)(3) is “broad enough to cover individual relief for breach of a fiduciary obligation.” Id. at 1076. Accordingly, individual plan participants can now bring suit under § 1132(a)(3) in their individual capacity. Id. The district court therefore erred in dismissing Allinder’s breach of fiduciary duty claim on the basis that she brought it in her individual capacity. This error does not ultimately inure to Allin-der’s benefit, however, because her claim for compensatory and punitive damages under § 1132(a)(3)(B)’s provisions for “other appropriate equitable relief’is not viable as a matter of law (see subsection D. below). D. Compensatory and Punitive Damages Under § 1132(a)(3)" } ]

[ { "docid": "23571964", "title": "", "text": "arguing that she had been wrongly denied disability benefits under the applicable ERISA plan. 244 F.3d at 822-23. Under that plan, Allen was not designated as the plan administrator; rather, an insurance company, UNAM, was the named plan administrator. Id. The district court granted summary judgment in favor of the employer, Allen, on the ground that it was not the plan administrator, and on appeal, we reversed. We held that “[t]he key question” was “whether Allen had sufficient decisional control over the claim process that would qualify it as a plan administrator ....” Id. at 824. In holding that Allen did have the requisite level of control to qualify as a plan administrator, we relied on several facts. First, we noted that, although UNAM was the designated plan administrator, “Allen requirefd] its employees to go through its human resources department in order to obtain an application for disability benefits.” Id. We held that that fact “plaee[d] Allen in sufficient control over the process to qualify as the plan administrator notwithstanding the language of the plan booklet.” Id. Moreover, we observed that Allen held itself out to employees as “administering] the Plan, [] processing] all claims and appeals, and [] providing] other administrative services.” Id. This bolstered our determination that Allen was a de facto plan administrator. Finally, we noted that “Allen did carry out its administrative designation by handing out the claim forms itself ... and by fielding questions about the plan from employees.” Id. We found that these facts comprised “sufficient indicators that point[ed] to Allen as a plan administrator.” Id. We also expressly rejected the approach taken by the Second Circuit in Crocco v. Xerox Corp., 137 F.3d 105, 107 (2d Cir.1998), which held that only an entity named in the plan document as an administrator could be a plan administrator. See Hamilton, 244 F.3d at 824. We have also recognized the de facto administrator doctrine in several cases in addition to Hamilton. In Rosen v. TRW, Inc., we reversed the dismissal, for failure to state a claim, of a complaint against an employer not named in the" }, { "docid": "2384855", "title": "", "text": "OPINION ANNOUNCING THE JUDGMENT OF THE COURT GARTH, Circuit Judge: This appeal, which arises from two corporate reorganizations and the consequent termination of a pension plan, requires us to answer the question: do pension plan fiduciaries have a duty under § 404 (29 U.S.C. § 1104) and § 406 (29 U.S.C. § 1106) of the Employee's Retirement Income Security Act (ERISA) to notify the former members of a plan who now claim an interest in a plan surplus, of a termination of the plan prior to the ten day requirement of the Pension Benefit Guaranty Corporation (PBGC) regulations found at 29 C.F.R. 2616 et seq.l We conclude that in the circumstances presented here, no notification was required beyond the 10-day notice mandated by the regulation. The district court granted defendants’ motion for summary judgment and denied the plaintiffs’ motion for partial summary judgment, holding that the duties embodied in § 404 and § 406 did not apply to HMW’s business decision to terminate the pension plan. We affirm. I. The plaintiffs, represented by John J. Hamilton and Paul L. Payonk (“Payonk”), consist of a class of employees or former employees of Hamilton Precision Metals (“Metals”) and of Wallace Silversmiths, Inc. (“Wallace”) who withdrew from a defined benefit pension plan shortly before its termination and, therefore, did not share in the distribution of the surplus of the Plan. The defendants, HMW Industries, Inc., Hamilton Technology, Inc., Clabir Corp., Bernhardt, Kenneth R., Strantz, Gloria G., and Clarke, Henry D., Jr., are alleged to have breached their fiduciary duty by failing to inform Payonk of the impending plan termination and by self-dealing. The relevant facts, none of which are in dispute, have been detailed by the district court in its Memorandum and Order of June 27, 1988. We reproduce the pertinent portions of that recital supplemented by additional facts disclosed in the record. Prior to August 5, 1983, Wallace, Ham-Tech and H-K Exchange, were wholly owned subsidiaries of HMW. The employ ees of these subsidiaries, including Metals, were participants in the HMW plan, an overfunded pension plan that was funded by both employer" }, { "docid": "9596083", "title": "", "text": "do not allege a breach of this duty. . ERISA Plaintiffs correctly note that Crocco dealt with a party seeking to recover benefits under ERISA § 502(a)(1)(B) and not to claims for breach of a fiduciary duty under ERISA § 502(a)(2). ERISA PI. Mem. at 42, n. 61, citing Crocco, 137 F.3d at 107, n. 2. However, there is nothing in the Crocco holding to suggest that a company is liable as a de facto fiduciary for the expressly designated fiduciary duties of its employees. In fact, the Court in In re Bausch & Lomb, Inc. ERISA Litigation, 2008 WL 5234281, at *11 (W.D.N.Y. Dec. 12, 2008), extended Crocco’s holding to the ERISA fiduciary context. ERISA Plaintiffs rely on In re Sprint Corp. ERISA Litigation, 388 F.Supp.2d 1207, 1221 (D.Kan.2004), in which the court found the company to be a fiduciary by virtue of its discretion with regard to plan investments. Such discretion on the part of Bear Stearns is not established here. . The only case cited by Plaintiffs which appears to support their position is Nilles v. Sears, Roebuck & Co., 1997 WL 610339, at *8 (N.D.Ill. Sept. 29, 1997). There, the court held, without citation, that Sears was a fiduciary because the plan administrator was an employee through whom it wielded discretion. Id. This case does not stem the flow of precedent holding that a company is not rendered liable as an ERISA fiduciary for the duties held by its employees. . In Hogan v. Metromail, 107 F.Supp.2d 459, 475 (S.D.N.Y.2000), the Court found that the company did not relinquish control of the plan and may have maintained discretion rendering it responsible for the plaintiffs' injuries. In Hamilton v. Allen-Bradley Co., 244 F.3d 819, 826-27 (11th Cir.2001), the Court found that the company was a named plan administrator and did not dispute the fact that it had discretion rendering it a plan fiduciary. In Dall v. Chinet Co., 33 F.Supp.2d 26, 39 (D.Me.1998), aff'd, 201 F.3d 426 (1st Cir.1999), the Court found that Chinet was liable for actions involving amendment of the plan because it was expressly" }, { "docid": "8739576", "title": "", "text": "dismissed the plaintiffs state law claims. Krohn and Huron Memorial then filed cross-motions for summary judgment on Krohn’s ERISA breach-of-fiduciary-duty claim, in which she alleged that various acts and omissions by Huron Memorial caused her injury. The district court granted Huron Memorial’s motion and entered summary judgment in its favor. From that order, Krohn now appeals. DISCUSSION The parties agree that the UNUM long-term disability policy qualifies as an employee welfare benefit plan under ERISA and that Huron Memorial was the plan administrator and ERISA fiduciary. ■ Plaintiff Krohn raises two arguments on appeal. First, she contends that the district court erred in concluding that Huron Memorial did not breach its fiduciary duty under ERISA by failing to disclose the availability of long-term disability benefits to her spouse when a request for benefit information was made on her behalf. Second, she contends that the district court erred in holding that Huron Memorial did not breach its fiduciary duty by failing to notify UNUM, its long-term-disability insurer, of her claim for benefits after her husband completed and returned the form entitled Initial Application for Disability Benefits. A, The Duty to Inform ERISA imposes high standards of fiduciary duty upon administrators of an ERISA plan. See 29 U.S.C. § 1104(a)(1); Kuper v. Iovenko, 66 F.3d 1447, 1458 (6th Cir.1995). As we have previously explained, ERISA’s fiduciary duty encompasses three components. See Berlin v. Michigan Bell Telephone Co., 858 F.2d 1154, 1162 (6th Cir.1988). The first is a “duty of loyalty” which requires that “all decisions regarding an ERISA plan ‘must be made with an eye single to the interests of the participants and beneficiaries.’ ” Id. (quoting Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.1982)); accord 29 U.S.C. § 1104(a)(1) (requiring a plan fiduciary to “discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries”). Second, ERISA imposes a “prudent person” fiduciary obligation, which is codified in the requirement that a plan fiduciary exercise his duties “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man [sic] acting" }, { "docid": "19925589", "title": "", "text": "under 29 U.S.C. § 1132(a)(3) for breach of fiduciary duty based on a misrepresentation by Liberty, the fiduciary who controlled the claims. However, in this case the § 1132(a)(3) action based on misrepresentation was brought against a fiduciary, El Paso, who did not control the claims. Thus, Gore properly brought his claim of misrepresentation under § 1132(a)(3), since § 1132(a)(1)(B) requires a beneficiary “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,” and it is undisputed that Gore is not entitled to the benefit under the terms of the plan. It should also be noted that this Court in Marks acknowledged in dicta that this circuit will recognize a § 1132(a)(3) claim as separate from a § 1132(a)(1)(B) claim even against the same fiduciary. “Even if Marks could bring a breach-of-fiduciary-duty claim, we have recognized such claims only where the misrepresentation in question involves the availability or extent of plan benefits.” Marks, 342 F.3d at 454 n. 2 (citations omitted). In each case where this circuit has found that a plaintiffs § 1132(a)(3) claim of breach of fiduciary duty is merely a repackaged § 1 132(a)(1)(B) claim, the claims could have been brought under § 1132(a)(1)(B). Here, Gore’s claim of breach of fiduciary duty could not have been characterized as a denial of benefits claim, thus the district court’s dismissal of Plaintiffs § 1132(a)(3) claim was in error. The ruling must be reversed and the case remanded for further proceedings. IV. Civil Penalties ERISA imposes particular duties on a plan administrator to provide information to a plan participant. See 29 U.S.C. § 1024(b)(4). Specifically, a plan administrator shall upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instrument under which the plan is established or operated. Id. An administrator who fails to comply within thirty days" }, { "docid": "23316295", "title": "", "text": "raise an issue of material fact sufficient to survive summary judgment. We also agree with the district court that Hamilton has failed to demonstrate a factual issue arising from the alleged accounting fraud. The record is devoid of any representation or misrepresentation by Segue or Butler about the issue. Because Hamilton cannot demonstrate that he relied on a material misrepresentation, the district court did not err, in granting summary judgment on this issue. Hamilton is correct, however, that fraudulent misrepresentation is also cognizable under a fraudulent concealment analysis. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex.1997) (“Fraud by non-disclosure is simply a subcategory of fraud.”). Hamilton argues that the failure of Segue and Butler to inform him of the accounting problems demonstrates fraudulent concealment of a material fact and thus creates the misrepresentation necessary for his fraudulent inducement claim to go forward. We disagree. “For there to be an actionable nondisclosure fraud, there must be a duty to disclose.” Bradford v. Vento, 997 S.W.2d 713, 725 (Tex.App.—Corpus Christi 1999, pet. granted); see also Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 170 (Tex.App.—Texarkana 2000, pet. denied) (“Silence is equivalent to a false representation where circumstances impose a duty to speak and one deliberately remains silent.”). Therefore, Hamilton must demonstrate that Segue or Butler breached a duty owed to him in order to prevail. Whether such a duty to disclose exists in this case is “entirely a question of law.” See Bradford, 997 S.W.2d at 725 (quoting Hoggett v. Brown, 971 S.W.2d 472, 487-88 (Tex.App.—Houston [14th Dist.] 1997, no writ)). Texas courts have found that “a duty to disclose may arise in four situations: (1) when there is a fiduciary relationship; (2) when one voluntarily discloses information, the whole truth must be disclosed; (3) when one makes a representation, new information must be disclosed when that new information makes the earlier representation misleading or untrue; (4) when one makes a partial disclosure and conveys a false impression.” Id. None of the above situations is present in the instant case. Segue/Butler and Hamilton were not in a fiduciary relationship," }, { "docid": "7874883", "title": "", "text": "that all appellees are Plan fiduciaries. Assuming, arguendo, that this assertion is correct, such does not present reversible error. ERISA’s definition of “fiduciary” is functional in nature, imposing the duties that accompany that status upon any person who “exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets ... [or] has any discretionary authority or discretionary responsibility in the administration of such [a] plan.” 29 U.S.C. §§ 1002(21)(A)(i), 1002(21)(A)(iii). See Firestone Tire & Rubber Co. v. Bruch, — U.S. -, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Fiduciary duties extend to any person to whom a named fiduciary delegates fiduciary responsibilities pursuant to 29 U.S.C. § 1105(c)(1)(B). 29 U.S.C. § 1002(21)(A). Fisher contends that Litton’s reserved right under the Plan to alter its terms and to terminate it, and Metropolitan’s delegated discretion to determine who will receive benefits and in what amount, make both entities fiduciaries under ERISA. Whether Metropolitan, Litton, and Ingalls may be regarded as ERISA fiduciaries, however, need not be resolved because of the district court’s alternative finding that summary judgment was appropriate on the merits of Fisher’s charges that the Litton Plan had fraudulently modified a prior existing plan and that the Litton Plan’s integration provision was illegal. Fisher does not contest this portion of the court’s order. This alternative finding that there was no genuine issue of material fact as to whether a breach of fiduciary duty had occurred and that the appellees were entitled to judgment as a matter of law, makes it unnecessary for us to reach the issue of appellees’ fiduciary status. 2. Section 1132(c) Penalties Fisher asserts that the district court erred in refusing to penalize Metropolitan for its failure to provide him with a copy of the Plan description. ERISA imposes an obligation upon the Plan administrator to, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description ... or other instruments under which the plan is established or operated. 29 U.S.C. § 1024(b)(4). Any" }, { "docid": "555673", "title": "", "text": "owe the plaintiffs the significant duties that our cases place upon such persons. See, e.g., Krohn v. Huron Memorial Hosp., 173 F.3d 542, 547 (6th Cir.1999) (explaining an ERISA fiduciary’s duty of loyalty and duty to disclose pertinent information to plan participants). The district court therefore properly granted summary judgment in favor of the Fines. B. PHP exercised sufficient control over plan assets to qualify as a fiduciary We cannot give the same answer regarding PHP’s status as an ERISA fiduciary. Once again, our inquiry is a functional one, with the task being to determine whether PHP exercised discretionary authority over plan management, or any authority or control over plan assets. See 29 U.S.C. § 1002(A)(21); see also Hamilton, 243 F.3d at 998 (“Only discretionary acts of plan management or administration, or those acts designed to carry out the very purposes of the plan, are subject to ERISA’s fiduciary duties.”). Although the functions that PHP performed as a third-party administrator did not convert it into an ERISA fiduciary, we believe that PHP exercised sufficient control over plan assets to so qualify. 2. Neither its agreement with the Company nor its day-to-day operations made PHP an ERISA fiduciary PHP renews the argument that it made before the district court-that it engaged solely in administrative and ministerial tasks that did not involve the exercise of discretionary authority. Relying on the DOL Bulletin and this court’s decision in Baxter v. C.A. Muer Corp., 941 F.2d 451 (6th Cir.1991) (per curiam), PHP maintains that the tasks it performed are directly in line with those that the Department of Labor and this court have held do not give rise to fiduciary responsibilities. This court in Baxter summarized the DOL Bulletin by explaining “that a person without the power to make plan policies or interpretations but who performs purely ministerial functions such as processing claims, applying plan eligibility rules, communicating with employees, and calculating benefits, is not a fiduciary under ERISA.” Id. at 455. The plaintiff in Baxter alleged that the third-party administrator of his employer’s self-funded healthcare plan had breached its fiduciary duties when it" }, { "docid": "2866901", "title": "", "text": "qualified for his position when he was terminated. It is undisputed that Mr. Hamilton’s congestive heart failure left him totally disabled and that he was, as a result, unable to return to his position. Thus, Mr. Hamilton could not perform the duties of his position and was, therefore, no longer qualified for the position. Indeed, the evidence was clear that Mecca’s decision to discharge Mr. Hamilton was based solely on the fact that Mr. Hamilton could no longer fulfill the duties of his job. Both Gene Peacock, the owner of Mecca, and Bobby Lloyd, the manager of the Savannah store, testified convincingly that they simply had to have someone to take Mr. Hamilton’s place at the Savannah store and that they could not afford to pay two people to do one job. Thus, even if the Court were to assume that the plaintiff had made out a prima facie case, Mecca advanced a clear and compelling non-discriminatory reason for Mr. Hamilton’s discharge and plaintiff failed to prove that the reason was mere pretext. Accordingly, the Court concludes that the plaintiff has not proven intentional interference with ERISA protected rights under § 510. IV. Plaintiff’s Claim that Mr. Hamilton’s Due Process Rights Were Violated ERISA § 503, 29 U.S.C. § 1133 provides: In accordance with regulations of the Secretary, every employee benefit plan shall- (1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and (2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim. The regulations promulgated by the Secretary of Labor to implement this statute require, among other things, that timely written notice be given to the participant setting forth the specific reasons for the denial of a claim, the specific plan provisions relied upon for the denial, a description of any additional information necessary for the" }, { "docid": "13042776", "title": "", "text": "count contains a funda mental flaw. Unlike Count I, which alleges that Diamond misrepresented in its employee handbook the true coverage provided by the insurance policies, Count II alleges that, whether misrepresentative or not, the statements in the employee handbook entitle plaintiff to enforce their terms directly against Diamond pursuant to ERISA, 29 U.S.C. § 1132(a)(1)(B). Yet, to state a claim for breach of fiduciary duty against Diamond for failing to pay the insurance claims, plaintiff must first prove that Diamond acted as a fiduciary in resolving such claims. She cannot. As an employer providing information regarding employee benefit plans, Diamond was acting in a fiduciary capacity with respect to its description of the plan. See 29 U.S.C. §§ 1022, 1104, 1109; Allen v. United Mine Workers of America 1979 Benefits Plan, 726 F.2d 352, 355 (7th Cir.1984); Gors v. Venoy Palmer Market, Inc., 578 F.Supp. 365 (E.D.Mich.1984); Allen v. Atlantic Richfield Retirement Plan, 480 F.Supp. 848 (E.D.Pa.1979), aff'd, 633 F.2d 209 (3d cir.1980). Because the plans clearly provided that the resolution of insurance claims was the function of the participating insurance companies, however, Diamond was not a fiduciary in this regard. Gelardi v. Pertec Computer Corp., 761 F.2d 1323 (9th Cir.1985) (“Once [plaintiff's employer] appointed the Plan Administrator and gave him control over the Plan, [the employer] was no longer a fiduciary because it retained no discretionary control over the disposition of claims.\"); see 29 U.S.C. § 1002(21)(A) ; United Independent Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1262, 1266-67 (7th Cir.1985). Accordingly, plaintiff simply cannot state a claim for breach of fiduciary duty against Diamond for its-or INA's, see 29 U.S.C. § 1105-decision not to honor plaintiff's claim for benefits under the two accidental death insurance policies. Count II is dismissed. The gravaman of plaintiff’s complaint lies in her allegations in Count I that Diamond breached its fiduciary duty under ERISA by misrepresenting in its employee handbook the nature of the coverage provided by the accidental death insurance policies. Since, as noted above, Diamond did have a fiduciary duty to accurately and adequately inform its" }, { "docid": "555672", "title": "", "text": "That is to say, the only acts by the Fines that could give rise to fiduciary liability are ones that the plaintiffs do not allege comprise a breach of duty. Regardless of whether the more lenient functional approach from Kayes or the more demanding Confer standard applies, the plaintiffs have not demonstrated that the Fines exercised the type of discretionary authority identified in § 3(21)(A) of ERISA. They have not shown, for example, that the Fines’ “conduct and authority with respect to [the] ERISA plant]” involved discretionary acts, Kayes, 51 F.3d at 1459, or that the Fines undertook “individual discretionary roles as to plan administration.” Confer, 952 F.2d at 37 (emphasis in original). Because the plaintiffs do not argue that the limited discretionary acts of the Fines gave rise to a breach of duty and because the Fines did not exercise discretionary authority over any other aspects of plan management or plan assets, the district court correctly concluded that the Fines were not ERISA fiduciaries. And because they were not fiduciaries, the Fines did not owe the plaintiffs the significant duties that our cases place upon such persons. See, e.g., Krohn v. Huron Memorial Hosp., 173 F.3d 542, 547 (6th Cir.1999) (explaining an ERISA fiduciary’s duty of loyalty and duty to disclose pertinent information to plan participants). The district court therefore properly granted summary judgment in favor of the Fines. B. PHP exercised sufficient control over plan assets to qualify as a fiduciary We cannot give the same answer regarding PHP’s status as an ERISA fiduciary. Once again, our inquiry is a functional one, with the task being to determine whether PHP exercised discretionary authority over plan management, or any authority or control over plan assets. See 29 U.S.C. § 1002(A)(21); see also Hamilton, 243 F.3d at 998 (“Only discretionary acts of plan management or administration, or those acts designed to carry out the very purposes of the plan, are subject to ERISA’s fiduciary duties.”). Although the functions that PHP performed as a third-party administrator did not convert it into an ERISA fiduciary, we believe that PHP exercised sufficient control" }, { "docid": "23571965", "title": "", "text": "booklet.” Id. Moreover, we observed that Allen held itself out to employees as “administering] the Plan, [] processing] all claims and appeals, and [] providing] other administrative services.” Id. This bolstered our determination that Allen was a de facto plan administrator. Finally, we noted that “Allen did carry out its administrative designation by handing out the claim forms itself ... and by fielding questions about the plan from employees.” Id. We found that these facts comprised “sufficient indicators that point[ed] to Allen as a plan administrator.” Id. We also expressly rejected the approach taken by the Second Circuit in Crocco v. Xerox Corp., 137 F.3d 105, 107 (2d Cir.1998), which held that only an entity named in the plan document as an administrator could be a plan administrator. See Hamilton, 244 F.3d at 824. We have also recognized the de facto administrator doctrine in several cases in addition to Hamilton. In Rosen v. TRW, Inc., we reversed the dismissal, for failure to state a claim, of a complaint against an employer not named in the plan document as an administrator, and permitted the plaintiff to pursue “the claim that the company was the de facto plan administrator and the committee was an inactive entity.” 979 F.2d 191, 193-94 (11th Cir.1992). We held that “if a company is administrating the plan, then it can be held liable for ERISA violations, regardless of the provisions of the plan document.” Id. Similarly, in Garren v. John Hancock Mutual Life Insurance Co., we stated that “[t]he proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan.” 114 F.3d 186, 187 (11th Cir.1997) (per curiam). Each of the foregoing cases, however, is distinguishable from the instant case in a significant respect: Hamilton, Garren, and Rosen applied the de facto administrator doctrine to employers, not to third-party administrative services providers. At issue in those cases were plans with frameworks similar to that in this case: an employer established an ERISA plan and then outsourced responsibility for administering claims to a separate entity. See Hamilton, 244 F.3d at 822-23;" }, { "docid": "3308102", "title": "", "text": "58.) The Complaint also alleges that Defendants Allen and Kramer breached their fiduciary duties by “offering to purchase additional shares so as to entrench their unlawful scheme and acquire such shares at an unfairly low price.” (Compl. ¶ 53; see Compl. ¶ 58.) DISCUSSION Defendants move pursuant to Rule 12(b)(6) to dismiss the Complaint for failure to state a claim. Defendants contend that their decisions regarding the Property and Deepdale are shielded by New York’s business judgment rule and that Plaintiff has not sufficiently alleged a breach of fiduciary duty or corporate waste. I. Legal Standard, on a Motion to Dismiss On a motion to dismiss under Fed. R.Civ.P. 12(b)(6), a court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). A court should not dismiss a complaint for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In this limited task, the issue is not whether a plaintiff will ultimately prevail on his claim, but whether the plaintiff is entitled to offer evidence in support of the allegations in the complaint. Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 62 (2d Cir.1997). A. Matters Outside the Pleadings In resolving a motion to dismiss for failure to state a claim, a court's “consideration is limited to facts stated on the face of the complaint, in documents appended to complaint or incorporated in the complaint by reference, and to such matters of which judicial notice may be taken.” Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991); see Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Such documents are considered to be part of the complaint. Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991). A court may also consider “documents" }, { "docid": "23571963", "title": "", "text": "to administer initial claims and first-level appeals. Accordingly, the appropriate standard of review turns on whether Coca-Cola — acting through the Committee — or Broadspire was the plan administrator. The district court found that Broadspire was the true plan administrator, and consequently applied de novo review, correctly observing that the Plan does not confer discretion upon Broadspire. As explained subsequently, however, we find that Coca-Cola was the plan administrator, that the appropriate standard of review was arbitrary and capricious, and that the district court erred in holding otherwise. C. Whether Broadspire or Cocar-Cola was the Plan Administrator The plan document designates Coca-Cola the plan administrator. Oliver relies on Hamilton v. Mlen-Bradley Co., in which we held that the plan document is not dispositive with respect to the identity of the plan administrator, and that it is necessary to examine “the factual circumstances surrounding the administration of the plan, even if these factual circumstances contradict the designation in the plan document.” 244 F.3d 819, 824 (11th Cir.2001). In Hamilton, a plan participant sued her employer, Allen, arguing that she had been wrongly denied disability benefits under the applicable ERISA plan. 244 F.3d at 822-23. Under that plan, Allen was not designated as the plan administrator; rather, an insurance company, UNAM, was the named plan administrator. Id. The district court granted summary judgment in favor of the employer, Allen, on the ground that it was not the plan administrator, and on appeal, we reversed. We held that “[t]he key question” was “whether Allen had sufficient decisional control over the claim process that would qualify it as a plan administrator ....” Id. at 824. In holding that Allen did have the requisite level of control to qualify as a plan administrator, we relied on several facts. First, we noted that, although UNAM was the designated plan administrator, “Allen requirefd] its employees to go through its human resources department in order to obtain an application for disability benefits.” Id. We held that that fact “plaee[d] Allen in sufficient control over the process to qualify as the plan administrator notwithstanding the language of the plan" }, { "docid": "23579484", "title": "", "text": "who may be eligible participants in severance benefits. In Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 283 (3d Cir.1988), we stated that “ERISA is not a direction to employers as to- what benefits to grant their employees. Rather, ERISA is concerned with the administration of an established plan and its elements.” Likewise, in Nazay, 949 F.2d at 1329, we recognized that “the clear emphasis of the statute is to ensure the proper execution of plans once established.” In Nazay, a certification for hospitalization required by the employer’s health plan had not been obtained by the employee. A waiver had been sought, but was denied by the Administrator of the Plan. Nazay then brought an action claiming that ERISA had been violated, because he had been denied health benefits to which he was entitled under the.Plan. The district court refused to enforce the certification requirement and held for Nazay. In reversing the district court and directing that summary judgment be entered in favor of the employer and the other appellants, we stated: In our view, BSC, as an employer, is free to develop an employee benefit plan as it wishes because the creation of a benefit plan is a corporate management decision unrestricted by ERISA’s fiduciary duties. Therefore, the arbitrary and capricious standard which may attach to fiduciary decisions does not apply. Id. at 1328. In Hamilton v. Air Jamaica, 945 F.2d at 78-79, we also stated that “nothing in ERISA prevents Air Jamaica from providing its employees with benefits on a case by case basis — as long as that limitation is explicitly stated as part of the plan.” It is undisputed that Groscost never received the prior approval which CIOC contends is essential for an employee to obtain severance benefits. The district court in its alternative holding, concluded that the reservation of such broad discretion by CIOC was a violation of ERISA. In light of the earlier expressions of this court in Hlinka, Nazay, and Hamilton, to which we have just referred, we cannot agree. We hold that approvals such as are incorporated into CIOC’s Severance Plan are" }, { "docid": "19925590", "title": "", "text": "of plan benefits.” Marks, 342 F.3d at 454 n. 2 (citations omitted). In each case where this circuit has found that a plaintiffs § 1132(a)(3) claim of breach of fiduciary duty is merely a repackaged § 1 132(a)(1)(B) claim, the claims could have been brought under § 1132(a)(1)(B). Here, Gore’s claim of breach of fiduciary duty could not have been characterized as a denial of benefits claim, thus the district court’s dismissal of Plaintiffs § 1132(a)(3) claim was in error. The ruling must be reversed and the case remanded for further proceedings. IV. Civil Penalties ERISA imposes particular duties on a plan administrator to provide information to a plan participant. See 29 U.S.C. § 1024(b)(4). Specifically, a plan administrator shall upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instrument under which the plan is established or operated. Id. An administrator who fails to comply within thirty days with a request for information from a plan participant may in the court’s discretion be personally liable to such participant ... in the amount of $100 a day from the date of such failure or refusal, and the court may in its discretion order such relief as it deems proper. 29 U.S.C. § 1132(c). ERISA defines the plan administrator as “the person specifically so designated by the terms of the instrument under which the plan is operated.” 29 U.S.C. § 1002(16)(A). “It is well established that only plan administrators are liable for statutory penalties under § 1132(c).” Caffey v. Unum Life Ins. Co., 302 F.3d 576, 584 (6th Cir.2002)(citing Hiney, 243 F.3d at 960; VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 618 (6th Cir.1992)). In Hiney, the Sixth Circuit reiterated that it was clear that a plan administrator cannot be liable for statutory penalties if the request for information was not directed to it. 243 F.3d at 961. The court in Hiney also rejected an agency theory when confronting a claim" }, { "docid": "18212704", "title": "", "text": "Gregg’s eye injury after Gregg reached 19 years of age and after the policy was terminated. Hamilton also sought damages against Altorfer for breach of a contract to provide the benefits in the health plan, and for violating the Employee Retirement Income Security Act of 1974 (ERISA). 29 U.S.C. §§ 1001-1461 (1982). DISCUSSION Hamilton first alleges that the dis-' trict court erred in finding that the health insurance policy did not provide for the payment of benefits for expenses incurred after termination of the policy. The relevant portions of the policy are set forth in the district court’s opinion. Hamilton v. Travelers Insurance Co., 587 F.Supp. 521, 523 (D.Mo.1984). We agree with the district court that “[i]t is clear from the words of the policy that only expenses incurred while the insured is covered will be reimbursed.” Id. at 524. The policy provides coverage for post termination expenses only in limited circumstances inapplicable to Hamilton. Accordingly, the court did not err in finding that the policy did not provide for payment of post termination benefits to Hamilton. See Bartulis v. Metropolitan Life Insurance Co., 71 Ill.App.2d 267, 218 N.E.2d 225 (Ill.App.1966). Hamilton also alleges that the district court erred in ruling that there was no contract between Altorfer and himself to provide the benefits set forth in the health insurance policy. Hamilton’s claim that a contract exists between himself and Altorfer is grounded on a document known as a “summary plan description,” which was distributed to Hamilton as required by ER-ISA. 29 U.S.C. § 1022 (1982). The “summary plan description” booklet does not contain any statement which could conceivably be read as creating an obligation on the part of Altorfer to provide health insurance benefits to Hamilton. As such, we find no error in the district court’s conclusion on this issue. Finally, Hamilton alleges that the district court erred in finding that Altorfer did not violate either a contractual duty, or ERISA by terminating the employee health insurance plan. The “summary plan description” booklet provides that Altorfer, as the plan’s administrator, “may terminate * * * the Plan in whole" }, { "docid": "20640217", "title": "", "text": "Am. Fed’n, 841 F.2d at 665 (employer can be liable if “actively and knowingly participating” in the employee’s breach of a fiduciary duty). Further, though the Kling court agreed with defendants’ arguments that “ERISA imposes a functional definition of fiduciary status ... [and] under the ‘two hats’ doctrine, courts have held that certain actions of an employer ... fall outside the scope of ERISA fiduciary duty,” it also acknowledged that “[defendants have failed to cite a single authority that evinces an intent within ERISA to eliminate the vicarious liability of a corporation for the acts of its employees or agent.” See id. at 146 (citing Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995)). In this case, adopting Kling'''s line of reasoning,, this Court finds that Plaintiffs’ re-spondeat superior claim is applicable to claims brought under ERISA. Accordingly, to make out a claim for Cardinal’s respondeat superior liability, Plaintiffs must show that the Director Defendants breached their duty to Plaintiffs while acting in the course and scope of their employment. See Hamilton, 243 F.3d at 1002. In the Complaint, Plaintiffs allege that, [t]he Director Defendants had a fiduciary duty to appoint as members of the Plan Committee persons with sufficient education, knowledge and experience to inform themselves as necessary to perform their duties as Plan Committee members, including the duty to evaluate the merits of investment options under the Plan, and had an ongoing fiduciary duty to ensure that the persons appointed to the Plan Committee were fully informed and performing their duties properly with respect to the selection of investment options under the Plan and the investment of the assets of the Plan. See Complaint ¶ 104. Then, to assert their claim of that Cardinal is liable for the Director Defendants’ failure to monitor under a theory of respondeat superior, Plaintiffs write, “[t]he Company is liable for the Director Defendants’ breaches of fiduciary duty in connection with the Director Defendants’ failures to properly appoint, monitor and inform the fiduciaries whom they appointed under the doctrine of re-spondeat superior.” Id. ¶ 109. Defendants argue" }, { "docid": "2866917", "title": "", "text": "conversion policy. Furthermore, the Court rejects Mecca’s assertion that Mr. Hamilton had a duty to mitigate his damages by maintaining the conversion policy. “The duty to mitigate damages prevents a party who has been wronged by a breach of contract to accumulate damages by sitting idle. This duty does not permit a party to recover from a wrongdoer those damages which he could have avoided without undue risk, burden or humiliation.” Iron Workers’ Local No. 25 Pension Fund v. Klassic Services, Inc., 913 F.Supp. 541, 546 (E.D.Mich.1996) (citing Calamari & Perrillo, Contracts § 14-15, at 610 (3d ed. 1987)). In order to maintain the conversion policy, Mr. Hamilton was required to pay significantly higher monthly premiums than he would have had to pay for COBRA coverage under the group policy for less coverage (a higher deductible) at a time when he and his family could ill afford these additional expenses. Clearly, this was a burden that Mr. Hamilton was not obliged to undertake in order to mitigate his damages. The Court also rejects Mecca’s contention that it is entitled to set off the $25,-000.00 paid to plaintiff pursuant to her settlement with Provident. Plaintiffs claims against Provident were separate and apart from her claims against Mecca. Mecca was solely responsible for providing Mr. Hamilton with notice of his rights under COBRA and has absolutely no basis to set off plaintiffs settlement with Provident. Accordingly, the Court concludes that Mecca is liable to plaintiff in the amount of $19,059.32 for failing to provide Mr. Hamilton with notice of his right to continuation coverage under the group policy pursuant to COBRA. VI. Mecca’s Liability for Failing to Supply Summary Plan Information Upon Request ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4), provides: The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.... ERISA § 502(c)(1)(B), 29 U.S.C. § 1132(c)(1)(B), in turn provides: Any administrator ..." }, { "docid": "21046368", "title": "", "text": "OPINION COLE, Circuit Judge. Plaintiffs-Appellants Michael Hamilton and the Southern Council of Industrial Workers Health and Welfare Trust Fund appeal the district court’s judgment entered following a bench trial in favor of Defendants-Appellees James W. Carell and various corporations owned, operated, and controlled by Carell, including Diversified Health Management, Inc. (“DHM”). This action stems from the purchase and handling of certain investments by P. Steven Beard, who was employed as Comptroller of DHM but who also performed investment services for the trust fund. Plaintiffs originally filed suit against numerous defendants, most of whom have been dismissed, claiming joint and several liability for breaches of fiduciary duties arising under Title I of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 (1994) et seq. On appeal, Plaintiffs assign error to the district court’s judgment as follows: (1) the district court clearly erred in finding that Carell was not a fiduciary to the trust during the applicable time period; (2) the district court erred in failing to hold DHM liable for Beard’s actions under the doctrine of respondeat superior; and (3) even if respondeat superior liability cannot attach to DHM, the district court erred in declining to ignore the corporate form so as to find the “Carell corporations” liable as a single entity under the doctrine of respondeat superior. For the reasons that follow, we AFFIRM the judgment of the district court. BACKGROUND Plaintiff Southern Council of Industrial Workers Health and Welfare Trust Fund is a joint union-employer Taft Hartley trust fund within the meaning of ERISA, 29 U.S.C. § 1002. Plaintiff Michael Hamilton is an independent fiduciary of the trust fund and was engaged to investigate the investment of trust fund assets in derivative collateralized mortgage obligations (“CMOs”) between August 30, 1993, and April 28, 1994. The trust fund’s “Statement of Investment Principles” provides that investments are to be made in secure instruments only and that “investments of a speculative nature are not to be made regardless of possible return.” It is undisputed that the CMOs at issue here were not suitable investments for the trust fund. Although the" } ]

[ { "docid": "3336338", "title": "", "text": "of this Election Code will be followed throughout the state at every election and in every polling place. But no commission is given for him to conduct and pay for party primaries.” Recent cases of the Supreme Court of the United States Relating to State Restrictions on the Right to Vote Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775,13 L.Ed.2d 675 (1965) involved a constitutional provision prohibiting any member of the armed forces who moved his home to Texas during the course of his military service from voting in an election in Texas so long as he was a member of the armed services. The State of Texas in Carrington made arguments very similar to those asserted by Mr. Symm herein. The state argued it could reasonably be assumed that servicemen were mere transients who would not remain within the state for an extended period. In rejecting the state’s arguments, the Supreme Court said: “. . . ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. ‘The exercise of rights so vital to the maintenance of democratic institutions,’ Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents. Yet, that is what Texas claims to have done here . . .” The Supreme Court in Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) held it unconstitutional for the State of New York to restrict the right to vote in school elections to owners of real property or parents of children attending schools, relying upon earlier language of Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964) wherein it was stated that: “Since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” While pointing" } ]

[ { "docid": "20813477", "title": "", "text": "who “present specialized problems in determining residence,” it presumably was aware of the 1964 statute. We turn therefore to the claim that § 151(b) and (c), more particularly the former, violate the Equal Protection Clause of the Fourteenth Amendment. We start from the proposition, stated in Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965), that a state “is free to take reasonable and adequate steps . to see that all applicants for the vote actually fulfill the requirements of bona fide residence.” We recognize that the Court has taken an increasingly severe approach under the equal protection clause to state laws which restrict the right to vote, compare Drueding v. Devlin, 234 F.Supp. 721 (D.Md.1964), aff’d, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965), with Dunn v. Blumstein, supra, 405 U.S. at 337, 92 S.Ct. 995. However, the Court has time and again reaffirmed its words in Carrington, quoted above, and its further statement in that case, 380 U.S. at 93-94, 85 S.Ct. at 779, “We stress — and this is a theme to be reiterated — that Texas has the right to require that all military personnel enrolled to vote be bona fide residents of the community.” See Kramer v. Union Free School District No. 15, 395 U.S. 621, 625, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Evans v. Cornman, 398 U.S. 419, 421, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Dunn v. Blumstein, supra, 405 U.S. at 343, 92 S.Ct. 995. Indeed, the Court in Dunn acknowledged that “[a]n appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny.” 405 U.S. at 343-344, 92 S.Ct. at 1004. Such a requirement stands, and has been recognized by the Court to stand, on a quite different basis from poll taxes, Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); property ownership, Kramer v. Union Free School District No. 15, supra-, and durational residency requirements," }, { "docid": "665879", "title": "", "text": "13 L.Ed.2d 675 (1965), Wilson v. Symm, 341 F.Supp. 8 (S.D.Tex.1972), and Ballas v. Symm, 351 F.Supp. 876 (S.D.Tex.1972), aff’d, 494 F.2d 1167 (5th Cir. 1974), render the Twenty Sixth Amendment claim insubstantial. The Supreme Court in Carrington invalidated a provision of the Texas Constitution which absolutely prohibited military personnel from establishing voter residency in Texas. In so doing, the Supreme Court observed that only military personnel were subject to an irrebuttable presumption of nonresidency, whereas other groups, such as college students, which also presented “specialized problems in determining residence”, were “given at least an opportunity to show the election officials that they are bona fide residents.” 380 U.S. at 95, 85 S.Ct. at 779. In dealing with the special problems presented by servicemen and students, the Supreme Court emphasized “. that Texas is free to take reasonable and adequate steps ... to see that all applicants for the vote actually fulfill the requirements of bona fide residence.” 380 U.S. at 96, 85 S.Ct. at 780. Defendants argue that the efforts of Symm to determine the true residence of voters through use of a questionnaire falls squarely within the permissible bounds set out in Carrington. The problem with this argument is that the Supreme Court in Carrington did not consider or decide what steps could be reasonably taken to determine the residency of special groups such as college students. The Supreme Court merely held invalid an irrebuttable presumption against such a group. Moreover, Carrington was decided long before the ratification of the Twenty Sixth Amendment. Thus, although the implications of Carrington may render the Twenty Sixth Amendment claim in this case of doubtful merit, the Court cannot say that Carrington is conclusive or that it renders the Twenty Sixth Amendment claim insubstantial. Cf. Whatley v. Clark, 482 F.2d 1230, 1233-34 (5th Cir. 1973), cert. denied, 415 U.S. 934, 94 S.Ct. 1449, 39 L.Ed.2d 492 (1974). Defendants also rely on Wilson v. Symm, supra, and Ballas v. Symm, supra, as rendering the three-judge court claim insubstantial. The Waller County voter registration procedure, including the use of the very same questionnaire as" }, { "docid": "21296593", "title": "", "text": "suffrage may be exercised ... absent of course the discrimination which the Constitution condemns.” Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50-51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) (upholding a race-neutral literacy test because literacy “has some relation to standards designed to promote intelligent use of the ballot”). More recent decisions have given varying degrees of “close constitutional scrutiny” to voter eligibility requirements under the Equal Protection Clause, invalidating many, but not all. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) .(poll tax invalid because “[w]ealth, like race ... is not germane to one’s ability to participate intelligently in the electoral process”); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (categorical disenfranchisement of residents in the military invalid); Kramer, 395 U.S. at 632-33, 89 S.Ct. 1886, and Cipriano v. City of Houma, 395 U.S. 701, 704-706, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (limiting right to vote in local elections to those with special interests invalid); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970) (disenfranchising residents of a federal enclave invalid); compare Dunn v. Blumstein, 405 U.S. 330, 360, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (one year and three-month durational residence requirements invalid), with Marston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973) (fifty-day durational residence requirement valid). By contrast, in Richardson v. Ramirez, 418 U.S. 24, 55, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), the Court rejected a challenge to California laws denying ex-felons the right to vote in part because the Equal Protection Clause of § 1 of the Fourteenth Amendment “could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.” 1. The essential factual predicate for plaintiffs’ facial attack on the Missouri constitutional and statutory provisions at issue is the assertion that an order appointing a full guardian for a Missouri ward found to" }, { "docid": "10552574", "title": "", "text": "must begin our inquiry by determining the proper standard to be applied to the statutes at issue. We look for guidance in cases involving voter qualifications and ballot access. In the context of voter qualifications, traditional equal protection strict scrutiny analysis has been applied. See Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (“ ‘[B]efore that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interest served by it must meet close constitutional scrutiny.’ ”) (quoting Evans v. Cornman, 398 U.S. 419, 422, 90 S.Ct. 1752, 1755, 26 L.Ed.2d 370 (1970)); Hill v. Stone, 421 U.S. 289, 297, 95 S.Ct. 1637, 1643, 44 L.Ed.2d 172 (1975) (Any restrictions other than residence, age, and citizenship must promote compelling state interests.). In applying strict scrutiny, the Supreme Court has invalidated certain measures enacted by states. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (right to vote predicated on $1.50 poll tax violates equal protection); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (striking down white primary laws); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (striking down on equal protection grounds statute that prevented resident military personnel from voting where stationed); and Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (striking down statute that prevented non-property owners from voting in school district election as violative of equal protection). In each of these cases, the state law under attack prohibited an identified class of persons from voting. Obviously, the statutes at issue in this case do not impose such a prohibition, but rather place a burdensome condition on the exercise of the fundamental right to vote. In such cases, the Supreme Court has never clearly determined that strict scrutiny should apply. These murky waters become more lucid to the extent that the Court has distinguished between provisions that result in “an absolute denial of the franchise” and provisions that made, “casting" }, { "docid": "20555728", "title": "", "text": "resident; in short, a six-month residency requirement as presently administered in Indiana adds no real protection against dual voting or colonization. See Hall, supra 90 S.Ct. at 205 (T. Marshall, J., dissenting). Fraud could be prevented by other means less drastic than the denial of the right to vote due to failure to meet the six months durational residence requirement; for example, a certification from a new resident’s former election district to insure that the new voter has not retained registration in his former district may be “necessary” under the compelling interest test. Indiana’s six-month requirement imposes an overbroad burden upon the right to vote. See Hall, supra 90 S.Ct. at 205 (T. Marshall, J., dissenting). Also see Carrington, supra 380 U.S. at 96, 85 S.Ct. 775. With regard to the state’s interest in an “enlightened electorate,” the state does have a greater interest in attempting to have an electorate which is knowledgeable of local and state issues in a general election than would be present if plaintiffs sought only to vote for President and Vice President. The argument that a six months durational residency requirement insures that voters have had the opportunity to become acquainted with local issues has little persuasion in relation to voting for President and Vice President since local issues play such a small part therein. Hall, supra 90 S.Ct. at 204 (T. Marshall, J., dissenting). On the other hand, it is not sufficient to justify the six-month requirement by an alleged need on the part of the state to indoctrinate or impress upon newcomers the local viewpoint. Hall, supra 90 S.Ct. at 204 (T. Marshall; J., dissenting) ; Carrington, supra 380 U.S. at 94, 85 S.Ct. 775. Nor is it permissible for a state to “fence out” from the franchise a sector of the population because of the way it may vote. Carrington, supra 380 U.S. at 94, 85 S.Ct. 775. Assuming arguendo that the state’s interest in insuring that the electorate is “enlightened” is compelling and that Indiana legitimately may limit the franchise to those residents who are familiar with local issues in a" }, { "docid": "20555553", "title": "", "text": "relation” test has consistently been applied. “The States have long been held to have broad powers to determine the conditions under which the right of suffrage may. be exercised.” Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959) “Texas has unquestioned power to impose reasonable residence restrictions on the availability of the ballot. Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817. There can be no doubt either of the historic function of the States to establish, on a nondiscriminatory basis, and in accordance with the Constitution, other qualifications for the exercise of the franchise.” Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L. Ed.2d 675 (1965). See, e. g., Evans v. Cornman, 398 U.S. 419, 421, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Kramer v. Union Free School District, 395 U.S. 621, 625, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 666-667, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Because Ohio’s one-year residency requirement for voting impinges up on no federal constitutional right to vote in state and local elections, there being none, we must apply the “rational relation” test to it. We find that the one-year residency requirement is not unreasonable, and that it is rationally related to promoting a legitimate state interest. Legitimate state interests that could be promoted by such a requirement are: ensuring that those who vote for state and local representatives are familiar with the political candidates and issues, by having been given maximum exposure to the problems of the locality through the media of local communication; preventing individuals, motivated only by a desire to affect the state’s election results, from “moving” into the state shortly before the election is held, voting, and then returning to their foreign domicile; ensuring that the electors have genuine interests in community affairs. The lines drawn by the distinctions are not infallible, but they need not be, so long as they are rationally related to these interests. McGowan v. Maryland, supra. This" }, { "docid": "20555556", "title": "", "text": "why we respectfully believe their opinions are in error. We have already demonstrated that the “rational relation” test has consistently been held applicable to state legislation specifying reasonable conditions of suffrage because the federal Constitution gives no one the right to vote in state and local elections. Therefore, as we have noted, nondiscriminatory conditions of suffrage, used to qualify a general state electorate, will be upheld if they are “rationally related” to promoting a legitimate state interest, because the classifications they create do not impinge upon anyone’s constitutional rights. 'Kramer and its progeny stand for the following proposition: Persons who qualify under a state’s valid election laws (by meeting its conditions of suffrage, i. e., age, residency, and citizenship requirements) have a constitutional right to vote in all state and local elections in which they have an interest. No state legislation or constitution may impinge upon this constitutional right to vote once qualified by “selectively excluding” a class of otherwise qualified electors from voting in any election in which they have an interest, unless the “compelling state interest” test is satisfied; that is, the classification of otherwise qualified voters excluded must be “necessary” to promote a “compelling state interest.” This rule is not without good reason. There is a common element present in all voting rights cases applying the “compelling state interest” test that is not present in the instant case: that is, the clear and present danger that the classification was created by the state for the purpose of, or with the effect of, “ ‘fencing out’ from the franchise a sector of the population because of the way they might vote.” Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965). A state’s act, in carving out a sub-class of otherwise qualified voters from the larger class of those who qualify under the state’s conditions of suffrage, presents a dangerous potential for political abuse. This activity clearly has constitutional overtones, and it is appropriate that it be examined under a standard requiring exacting scrutiny. “It has been repeatedly recognized that all qualified voters" }, { "docid": "22545419", "title": "", "text": "of that class equally does not end the judicial inquiry. “The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose. . . .” McLaughlin v. Florida, 379 U. S. 184, 191. It is argued that this absolute denial of the vote to servicemen like the petitioner fulfills two purposes. First, the State says it has a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community. Secondly, the State says it has a valid interest in protecting the franchise from infiltration by transients, and it can reasonably assume that those servicemen who fall within the constitutional exclusion will be within the State for only a short period of time. The theory underlying the State’s first contention is that the Texas constitutional provision is necessary to prevent the danger of a “takeover” of the civilian community resulting from concentrated voting by large numbers of military personnel in bases placed near Texas towns and cities. A base commander, Texas suggests, who opposes local police administration or teaching policies in local schools, might influence his men to vote in conformity with his predilections. Local bond issues may fail, and property taxes stagnate at low levels because military personnel are unwilling to invest in the future of the area. We stress — and this a theme to be reiterated — that Texas has the right to require that all mili tary personnel enrolled to vote be bona fide residents of the community. But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation. Cf. Gray v. Sanders, 372 U. S. 368. “Fencing out” from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. “[T]he exercise of rights so vital to the maintenance of democratic institutions,” Schneider v. State, 308 U. S. 147, 161, cannot constitutionally be obliterated because of a" }, { "docid": "5346661", "title": "", "text": "some thirty per cent of those eligible to vote in the town election. A violation of the Twenty-Sixth Amendment is said to have occurred. The parties have not adequately argued this point before us and we prefer to leave its resolution, in the first.instance, to the district court. Without attempting to define the boundaries of “abridgement”, we deem it sufficient to state, for now, that it seems only sensible that if a condition, not insignificant, disproportionately affects the voting rights of citizens specially protected by a constitutional amendment, the burden must shift to the governmental unit to show how the statutory scheme effectuates, in the least drastic way, some compelling governmental objective. In other words, the voting amendments would seem to have made the specially protected groups, at least for voting-related purposes, akin to a “suspect class”, to use the contemporary label. Of course, if the court were to find the burden of such a significant nature as to constitute an “abridgement”, it presumably would not take the additional step of considering the adequacy of governmental justification. The passage of a constitutional amendment does not take place lightly. It creates serious problems of accommodation as the Fifteenth Amendment demonstrated. The specific problem faced by college communities with concentrated youth populations was faced in the consideration of the Twenty-Sixth Amendment. To the expressed fears of campus takeovers of small communities —since “the student body [is] composed largely of 18 to 21-year-olds” — the candid response in debate was that if students “satisfy the residency requirement of that town obviously they would be entitled to vote.” 117 Cong.Rec. 7538-39, 7547. This is the same answer that the Court gave to the same concern in Carrington, supra 380 U.S. at 94, 85 S.Ct. at 779: “ ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” See also Dunn, supra, 405 U.S. at 356 n. 28, 92 S.Ct. 995. As Congressman Randall said, “It is quite possible that there may be other laws governing non-Federal elections in the various states which will have" }, { "docid": "6806128", "title": "", "text": "v. Cummings, 412 U.S. at 749, 93 S.Ct. at 2329 (\"From the very outset, we recognized that the apportionment task ... is primarily a political and legislative process.”). . In fact, the Gaffney Court observed that some states \"have congressional districts that vary from one another by as much as 29% and as little as 1% with respect to their age-eligible voters.\" 412 U.S. at 747, 93 S.Ct. at 2328. . As an example of an unconstitutional choice of apportionment base, the Court cited Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). At issue in Carrington was a provision of the Texas Constitution which provided that an active member of the military could vote only in the county where he resided at the time he entered into the service, even if he is domiciled and intends to make his home in a new county. The Court held that the provision violated the Equal Protection Clause because it unreasonably and unjustifiably treated military personnel differently from other transient persons, such as college students, hospital patients, and civilian employees of the United States, who were given at least an opportunity to show election officials that they are bona fide residents of the particular county. Id. at 95-97, 85 S.Ct. at 779-81. . Even Judge Kozinski himself acknowledges that his colleagues in the Garza majority \"may ultimately have the better of the argument. We are each trying to divine from the language used by the Supreme Court in the past what the Court would say about an issue it has not explicitly addressed.” 918 F.2d at 785. . For example, one commentator conducted a thorough analysis of the majority opinion in Garza and concluded that there is no fundamental right of people to equal access to their elected representatives. Scot A. Reader, One Person, One Vote Revisited: Choosing a Population Basis to Form Political Districts, 17 Harv. J.L. & Pub. Pol'y 521, 530-42 (1994). Reader constructed an analogy, under First Amendment precedent, between the right of free access to representatives and the right of free access to a" }, { "docid": "22717441", "title": "", "text": "means that it may require a period of residence sufficiently lengthy to impress upon its voters the local viewpoint. This is precisely the sort of argument this Court has repeatedly rejected. In Carrington v. Rash, for example, the State argued that military men newly moved into Texas might not have local interests sufficiently in mind, and therefore could be excluded from voting in state elections. This Court replied: “But if they are in fact residents, . . . they, as all other qualified residents, have a right to an equal opportunity for political representation, . . . 'Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” 380 U. S., at 94. See 42 U. S. C. § 1973aa-1 (a)(4). Similarly here, Tennessee’s hopes for voters with a “common interest in all matters pertaining to [the community’s] government” is impermissible. To paraphrase what we said elsewhere, “All too often, lack of a ['common interest’] might mean no more than a different interest.” Evans v. Cornman, 398 U. S., at 423. “[Differences of opinion” may not be the basis for excluding any group or person from the franchise. Cipriano v. City of Houma, 395 U. S., at 705-706. “[T]he fact that newly arrived [Tennesseeans] may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State.” Hall v. Beals, 396 U. S. 45, 53-54 (1969) (dissenting opinion). Finally, the State urges that a longtime resident is “more likely to exercise his right [to vote] more intelligently.” To the extent that this is different from the previous argument, the State is apparently asserting an interest in limiting the franchise to voters who are knowledgeable about the issues. In this case, Tennessee argues that people who have been in the State less than a year and the county less than three months are likely to be unaware of the issues" }, { "docid": "22433982", "title": "", "text": "as a condition to the exercise of franchise, the requirement of an oath that the elector did not “teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy.” The Court’s intent was clear — “to withdraw all political influence from those who are practically hostile to” the goals of certain criminal laws. Murphy, supra, at 45; Davis, supra, at 348. To the extent Murphy and Davis approve the doctrine that citizens can be barred from the ballot box because they would vote to change the existing criminal law, those decisions are surely of minimal continuing precedential value. We have since explicitly held that such “differences of opinion cannot justify excluding [any] group from . . . ‘the franchise,' ” Cipriano v. City of Houma, 395 U. S., at 705-706; see Communist Party of Indiana v. Whitcomb, 414 U. S. 441 (1974); Evans v. Cornman, 398 U. S. 419, 423 (1970). “[I]f they are . . . residents, . . . they, as all other qualified residents, have a right to an equal opportunity for political representation. . . . ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” Carrington v. Rash, 380 U. S., at 94. See Dunn, 405 U. S., at 355. Although, in the last century, this Court may have justified the exclusion of voters from the electoral process for fear that they would vote to change laws considered important by a temporal majority, I have little doubt that we would not countenance such a purpose today. The process of democracy is one of change. Our laws are not frozen into immutable form, they are constantly in the process of revision in response to the needs of a changing society. The public interest, as conceived by a majority of the voting public, is constantly undergoing reexamination. This Court’s holding in Davis, supra, and Murphy, supra, that a State may disenfranchise a class of voters to “withdraw all political influence from those who are practically hostile” to the existing order, strikes at the" }, { "docid": "20813473", "title": "", "text": "ch. 1096, effective July 2, 1971. We find little force in plaintiffs’ contention that the singling out of students and certain other classes in § 151(a) is an unconstitutional discrimination. So far as the language, “no person shall be deemed to have gained or lost a residence by reason of his presence . . .,” is concerned, this cannot reasonably be read as outlawing all consideration of “presence”. Obviously the legislature did not mean to deny that a student’s presence in the state meets the element of “physical presence” required to establish a domicile of choice, Restatement (Second) of the Conflict of Laws §§ 15(2) (a), 16 (1971). The words say to us only that presence of a former non-domiciliary as a student within the state is not alone sufficient to supply, nor is absence of a former domiciliary as a student alone sufficient to lose, the required mental element. This reading, which fits comfortably within common law notions of the intention needed for -acquiring domicile, has been adopted by the New York Court of Appeals. Palla v. Suffolk County Board of Elections, supra, 31 N.Y.2d at 47, 334 N.Y.S.2d at 867. We see nothing constitutionally impermissible in New York’s having thus enumerated certain categories of persons who, despite their physical presence, may lack the intention required for voting, persons who, in the Supreme Court’s words, “present specialized problems in determining residence.” Carrington v. Rash, 380 U.S. 89, 95, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965). Indeed, the Court there implicitly approved a Texas statute doing precisely this, so long as persons within the categories, including students, “are given at least an opportunity to show the election officials that they are bona fide residents.” Id. See also 380 U.S. at 91-92 n. 3, 85 S.Ct. 775, 780, and Wilson v. Symm, 341 F.Supp. 8 (S.D.Tex.1972). It is immaterial that the fertile brains of able counsel have been able to conceive of other categories possessing elements of transiency or involuntariness similar to the five listed in § 151(a). It is not a violation of equal protection to select for individual" }, { "docid": "22330754", "title": "", "text": "the President and Vice President, not by the Nation as such, but rather by the individual States, each acting as a community. Hence, the argument goes, each State may legislate to ensure that those voting for its presidential electors are truly members of the state community. The argument is surely correct as far as it goes, and this Court has often reaffirmed the power of the States to require their voters to be bona fide residents. Carrington v. Rash, 380 U. S. 89, 93-94 (1965); Kramer v. Union School District, supra, at 625. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residency is questioned, but because they are recent rather than longtime residents. Nor is it a justification to say that the State has certain parochial interests at stake in the election of a President, and that it may require of its voters a period of residency sufficiently lengthy to impress upon them the local viewpoint. This is precisely the sort of argument that this Court, in Carrington v. Rash, supra, found insufficient to justify Texas’ exclusion from voting in state elections of servicemen who had acquired Texas residency after they had entered the service. The State argued that military men newly moved to Texas might not have local interests sufficiently at heart. This Court replied: “But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation. . . . ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” 380 U. S., at 94. Similarly here, the fact that newly arrived Coloradans may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State. Nor does it suffice to argue that a durational residency" }, { "docid": "8824569", "title": "", "text": "120 P.3d 217 (2005)] of 'resident population,' as used [in] the Hawaii County Charter, as excluding nonresident college students and nonresident military personnel and their dependents from the population base for purposes of apportioning county council districts. The opinion was forwarded to the Commission. Id. (footnote omitted). . Kostick’s Reply relies heavily on Evans v. Common, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970), for the argument that \"all persons” who were counted as Hawaii residents in the Census are entitled to be counted as part of the population basis. Doc. No. 36 at 13-14, Reply at 8-9. Evans, however, addressed a different issue. In Evans, the Court rejected the argument that the residents of a National Institutes of Health (\"NIH”) enclave, who were denied the right to vote, were nonresidents of Maryland. Evans did not sub silentio overrule Bums’s determination that permanent residents or citizens are a permissible districting basis. The NIH employees were concededly residents of the enclave, which the Court held was part of the state and therefore the employees could not be forbidden from voting as state residents. Evans, 398 U.S. at 421-22, 90 S.Ct. 1752. Contrary to Kostick's reading of the case, the Court also reaffirmed prior holdings that permit the imposition of bona fide residency requirements to permit voting, and explained that the right to be counted existed \" ‘if [NIH employees] are in fact residents, with the intention of making [the State] their home indefinitely.’ ” Id. (quoting Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965)). Similarly, Hawaii permissibly seeks to count all of those — and only those — who have \"the intention of making [the State] their home indefinitely.” . The Commission explains that because it does not import prisoners from elsewhere, non-resident prisoners are not included because “convicted felons in Hawaii are highly likely to be 'permanent residents.’ ” Doc. No. 33, Opp’n at 26 n. 6. . In its opposition, the Commission suggests that the Kostick plaintiffs lack standing. Doc. No. 22-23, Opp’n at 16-17. However, the Commission concedes that the" }, { "docid": "5346662", "title": "", "text": "governmental justification. The passage of a constitutional amendment does not take place lightly. It creates serious problems of accommodation as the Fifteenth Amendment demonstrated. The specific problem faced by college communities with concentrated youth populations was faced in the consideration of the Twenty-Sixth Amendment. To the expressed fears of campus takeovers of small communities —since “the student body [is] composed largely of 18 to 21-year-olds” — the candid response in debate was that if students “satisfy the residency requirement of that town obviously they would be entitled to vote.” 117 Cong.Rec. 7538-39, 7547. This is the same answer that the Court gave to the same concern in Carrington, supra 380 U.S. at 94, 85 S.Ct. at 779: “ ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” See also Dunn, supra, 405 U.S. at 356 n. 28, 92 S.Ct. 995. As Congressman Randall said, “It is quite possible that there may be other laws governing non-Federal elections in the various states which will have to be changed to prevent conflict with the proposed intent of this amendment.” 117 Cong.Rec. 7565. The determination whether there is an impermissible conflict with one or more of the goals of this amendment will, should the court reach this issue, admittedly call for sensitive analysis. We cannot say whether or not the election date set by Amherst will prove to be one of the non-federal decisions which are vulnerable under the new amendment. Enough has been said to indicate that this case, appearing no doubt to some as an unnecessary irritant in municipal life, encompasses questions both broad and deep. Judgment vacated; case remanded for further proceedings consistent with this opinion. . Appellees’ brief raises the question whether Sherman is properly a party in this litigation. Although he was not a named member of the alleged class in the complaint filed on January 10, 1973, appellants Walgren and Gluseo amended this original complaint on January 16 to include Sherman. This amendment was, in effect, self-executing under F.R.Civ.P. 15(a) since a responsive pleading, as opposed" }, { "docid": "20813474", "title": "", "text": "Appeals. Palla v. Suffolk County Board of Elections, supra, 31 N.Y.2d at 47, 334 N.Y.S.2d at 867. We see nothing constitutionally impermissible in New York’s having thus enumerated certain categories of persons who, despite their physical presence, may lack the intention required for voting, persons who, in the Supreme Court’s words, “present specialized problems in determining residence.” Carrington v. Rash, 380 U.S. 89, 95, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965). Indeed, the Court there implicitly approved a Texas statute doing precisely this, so long as persons within the categories, including students, “are given at least an opportunity to show the election officials that they are bona fide residents.” Id. See also 380 U.S. at 91-92 n. 3, 85 S.Ct. 775, 780, and Wilson v. Symm, 341 F.Supp. 8 (S.D.Tex.1972). It is immaterial that the fertile brains of able counsel have been able to conceive of other categories possessing elements of transiency or involuntariness similar to the five listed in § 151(a). It is not a violation of equal protection to select for individual inquiry categories of citizens presenting the most obvious problems, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 50-51, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966), as long as the ultimate standard is the same for all, as it is here. Beyond this it is worth noting that § 151(a) is not simply a disenfranchising provision; it may often operate as a franchise preserving provision, as for the New Yorker long absent in the service of the United States or as a student in some other state or foreign country. We likewise reject the contention that § 151(a) violates § 101(a) of the Civil Rights Act of 1964, 78 Stat. 241, 42 U.S.C. § 1971(a)(2)(A), which provides: (2) No person acting under color of law shall— (A) in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices," }, { "docid": "5346654", "title": "", "text": "first address appellants’ equal protection claim under the Fourteenth Amendment. The appellants argue that the town law setting the election date interferes with the equal exercise of the franchise right — i. e., one large, identifiable class is said to have been deprived of the opportunity to visit personally the polls and must utilize instead the allegedly more cumbersome and less effective method of voting by absentee ballot. They add that the right to participate in elections on an equal basis with other citizens has been denominated a fundamental right, Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). They conclude therefore that any infringement of that right must be scrutinized under the compelling interest test. Harper, supra; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). We do not view the compelling interest test as applicable here. There being no allegation that the town has improperly denied absentee ballots to residents requesting them, it has not “totally denied the electoral franchise to a particular class of residents [such that] there [might be] no way in which the members of that class could [make] themselves eligible to vote.” Rosario v. Rockefeller, 93 S.Ct. 1245, 1249 (1973). We believe that the instant case, if considered simply as one in which a large, identifiable class is burdened by the choice of a particular election date, must track the analysis in Rosario, rather than apply the more rigorous compelling interest standard. The Court engaged in three inquiries. It first considered whether" }, { "docid": "22717440", "title": "", "text": "every State must live with this new federal statute, it is impossible to believe that durational residence requirements are necessary to meet the State’s goal of stopping fraud. B The argument that durational residence requirements further the goal of having “knowledgeable voters” appears to involve three separate claims. The first is that such requirements “afford some surety that the voter has, in fact, become a member of the community.” But here the State appears to confuse a bona fide residence requirement with a durational residence requirement. As already noted, a State does have an interest in limiting the franchise to bona fide members of the community. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residence is questioned, but because they are recent rather than longtime residents. The second branch of the “knowledgeable voters” justification is that durational residence requirements assure that the voter “has a common interest in all matters pertaining to [the community’s] government . . . .” By this, presumably, the State means that it may require a period of residence sufficiently lengthy to impress upon its voters the local viewpoint. This is precisely the sort of argument this Court has repeatedly rejected. In Carrington v. Rash, for example, the State argued that military men newly moved into Texas might not have local interests sufficiently in mind, and therefore could be excluded from voting in state elections. This Court replied: “But if they are in fact residents, . . . they, as all other qualified residents, have a right to an equal opportunity for political representation, . . . 'Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” 380 U. S., at 94. See 42 U. S. C. § 1973aa-1 (a)(4). Similarly here, Tennessee’s hopes for voters with a “common interest in all matters pertaining to [the community’s] government” is impermissible. To paraphrase what we said elsewhere, “All too often, lack of a ['common interest’] might mean no more than a different interest.” Evans v. Cornman," }, { "docid": "17080435", "title": "", "text": "meticulously scrutinize any proposal which would deny to some the federally created right to influence the course of a highway in their neighborhood to determine whether this discrimination is “necessary to the accomplishment” of the congressional objective — a federally financed interstate highway system. Appellees argue that Congress intended by enacting Section 23 to bypass the hearing process because hearings would only expose community sentiment adverse to the construction of the Bridge, and that Congress intended that the Bridge be built irrespective of the wishes of the citizens of the District of Columbia. Appellees further argue that to allow a public hearing would cause the local authorities to delay the Bridge, and that Congress meant to preclude hearings for this reason as well. Such a reading of the statute would condemn it as unconstitutional. A legislature may not constitutionally disenfranchise a group of citizens because of their expected views: “ ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. ‘[T]he exercise of rights so vital to the maintenance of democratic institutions,’ * * cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents.” Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed. 675 (1965). In addition to giving closer review to classifications involving individual rights, the Court has also imposed a higher burden of justification on some forms of classification which are “constitutionally suspect” or “traditionally disfavored.” If we were to accept appellees’ reading and interpretation of Section 23, Congress would have excluded from the statutory protection only one group, a totally unrepresented and voiceless minority of citizens. Any legislative classification which singles out for invidious treatment a small group of citizens totally excluded from the political process does not meet the usual deference from this court. The usual deference which courts accord legislative and administrative judgments stems from the confidence which courts have that these judgments are just resolutions of competing interests. In the Carolene Products ease, the Supreme Court pointedly raised the question" } ]

[ { "docid": "17233553", "title": "", "text": "the seller has sufficient economic power with respect to the tying product to restrain free competition in the market for the tied product and if a not insubstantial amount of interstate commerce is affected. United States Steel Corporation v. Fortner Enterprises, Inc., 429 U.S. 610 [97 S.Ct. 861, 51 L.Ed.2d 80] (1977); Kentucky Fried Chicken Corporation v. Diversified Packaging Corporation, 549 F.2d 368 (5th Cir.1977). Additionally, a tie is illegal only if the seller of the tying product has a financial interest in the source of the tied product. Keener v. Sizzler Family Steak Houses, 597 F.2d 453 (5th Cir.1979). Plaintiffs contend the Waffle House franchise is the tying product in this case and that equipment and vending services, which franchisees were required to obtain from an approved source, are the tied products. The Hickman Company was the only approved source for certain equipment, and Metro Distributors, Inc. was the only approved source for vending services. Defendants contend that as to the vending services there are not two separate products which could be tied because vending income, part of which was collected by Metro Distributors, Inc. and paid to Waffle House, was an additional franchise fee and not a separate payment for a product distinct from the franchise. Although such has been held to be the case with respect to lease payments, a license fee, and a security deposit paid to a franchisor, Principe v. McDonald’s Corporation, 631 F.2d 303 (4th Cir.1980), cert. denied, [451] U.S. [970, 101 S.Ct. 2047, 68 L.Ed.2d 349] (May 4, 1981), the court finds that vending services are not such “an essential ingredient of the franchised system’s formula for success” that they should be treated as part of the franchise itself. 631 F.2d at 309. There is some question as to whether a trademarked product has sufficient economic power that it can be an illegally tying product. In Kentucky Fried Chicken Corporation v. Diversified Packaging Corporation, supra, the franchisor conceded this point. A few courts have been presented with the issue, but the question has not been settled as a matter of law. The leading" } ]

[ { "docid": "6279356", "title": "", "text": "support. Where the seller of the tying goods has no interest in the sale of the tied goods, then it is not using its power in the market for the tying item to invade a second market; the sales of the tied goods are independently priced by a separate financial entity who presumably has no power to charge a noncompetitive price. Under such circumstances, tying poses no danger to competition, and courts have universally held that such tying is not actionable. See Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979); Ohio-Sealy Mattress Manu- factoring Co. v. Sealy, Inc., 585 F.2d 821, 834-35 (7th Cir. 1978), cert, denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 377 n.9 (5th Cir. 1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1317-18 (3d Cir. 1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir. 1964), cert, denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Nelligan v. Ford Motor Co., 262 F.2d 556 (4th Cir. 1959); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446 (9th Cir. 1958); Roberts v. Elaine Powers Figure Salons, Inc., 1981-1 Trade Cas. (CCH) 63,976 (E.D.Cal. 1980); Shaeffer v. Collings, 1980-81 Trade Cas. (CCH) 163,666 at 77,576 (E.D.Pa.1980); Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 491 F.Supp. 1199, 1209 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903, 904-05 (E.D.La. 1976); BBD Transportation Co. v. United States Steel Corp., 1976-2 Trade Cas. (CCH) 161,709 at 69,874 (N.D.Cal.1976); Mid-America ICEE, Inc. v. John E. Mitchell Co., 1973-2 Trade Cas. (CCH) 174,681 at 94,990-91 (D.Ore.1973). Centennial has submitted an affidavit indicating that Data General has no financial interest in the tied sales of credit made by Centennial. See Affidavit of William C. Thompson. However, the complaint does allege a financial interest: the tied maintenance services purchased from Data General would be subcontracted to Centennial. Amended Complaint 127(c). Presumably, Data General would receive a discount on the subcontract for maintenance services in return" }, { "docid": "17187900", "title": "", "text": "purchase from someone else. An implicit requirement to a finding that a tying arrangement violates § 1 is that the seller of the tying product must also profit from the sale of the tied product. The district court went on to say that, “[i]n all of the cases addressing this question which the Court is aware of, the courts require that the seller of the tying product must have benefited directly from the sale of the tied product.” And, “[i]n this case, it is clear from the evidence before the Court that none of the monies paid to Bu-cholz, Inc. reached Parkview’s hands. Therefore, the Court finds defendants’ motions for summary judgment as to plaintiff’s § 1 claim well taken.” The district court’s reliance on the “direct economic benefit” rule was well-grounded in antitrust law. Prior to Jefferson Parish, courts ordinarily tested a challenged tying arrangement for section 1 validity by determining whether the provider of the tying product or service derived any direct economic benefit from the arrangement. An absence of direct economic benefit was taken as a determinative indicator that the provider of the tying product or service had no anti-competitive impact upon the market for the tied product or service. See, e.g., Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transp. Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983). These courts dismissed section 1 Sherman Act claims where the seller, accused of providing an alleged tying product or service, did not derive any direct economic benefit from the sale of the product said to be tied. Notable among these decisions is Crawford Transp. Co. in which this court held that Chrysler Corporation “was guilty of no tying arrangement in violation of Section 1 of the Sherman Act”" }, { "docid": "959231", "title": "", "text": "repairs. This economic benefit to the developer defendants, plaintiffs argue, constitutes an economic interest in the sale of management services sufficient to support a tying claim. This question — whether the seller of the tying product has a sufficient interest in sales of the tied product — is not a genuine issue in most tying cases. In the classic tying situation the seller of the tying product also is the seller of the tied product. E.g., United States v. Loew’s, Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962). Frequently, the seller of one product is a subsidiary or affiliate of the seller of the other product. E.g., Fortner Enterprises, Inc. v. U.S. Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). Apart from cases in which the two products are sold by one seller (or by affiliated sellers), illegal tying also has been found where the seller of the tying product receives a commission or rebate on sales of the tied product. E.g., Ohio-Sealy Mattress Mfg. v. Sealy, Inc., 585 F.2d 821 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir.1977); Falls Church Bratwursthaus, Inc. v. Bratwursthaus Mgmt. Corp., 354 F.Supp. 1237 (E.D.Va.1973). In the absence of such payments courts have rejected tying claims, even where — as generally is the case — the seller of the tying product receives some identifiable economic benefit from the challenged arrangement. Keener v. Sizzler Family Steak Houses, 597 F.2d 453 (5th Cir.1979), aff'g in part [1977] 2 Trade Cas. (CCH) 11 61,682 (N.D.Tex.1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309 (3d Cir.1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Robert’s Waikiki U-Drive v. Budget Rent-A-Car, 491 F.Supp. 1199 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903 (E.D.La.1976). In this case plaintiffs allege that" }, { "docid": "5478712", "title": "", "text": "or incorporated into the complaint. Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir.1996). The Court will treat defendants’ Rule 9(b) motion to dismiss for failure to plead fraud with particularity under the same standard as the Rule 12(b)(6) motion. Id. A. Tying Claims A tying arrangement is “ ‘an agreement by a party to sell one product but only on condition that the buyer also purchase a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.’ ” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 461, 112 S.Ct. 2072, 2079, 119 L.Ed.2d 265 (1992) (quoting Northern Pacific R. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958)). An agreement requiring the buyer to purchase the tied product from some third party can also amount to a tying arrangement, if the tying seller receives some economic benefit or has some economic interest in the third party’s sales of the tied product. See White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 104 (4th Cir.1987) (no tie-in because hospital had no economic interest in CT scan interpretation market); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476 (9th Cir.1983) (favorable loans to franchisor from designated supplier created financial interest). But see Gonzalez v. St. Margaret’s House Housing Devel. Fund Corp., 880 F.2d 1514, 1518 (2d Cir.1989) (financial interest in tied prod uct not required because this requirement was never adopted by Supreme Court); Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1579 n. 12 (11th Cir.1991), cert. denied, 506 U.S. 903, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992) (economic interest requirement only applied in and is most needed in franchise cases). Here, plaintiffs’ allegations suffice to suggest that SpeeDee had an economic interest in Mobil’s sales to the franchisees. Plaintiffs allege that defendants formed a joint venture under which Mobil was to provide financial backing for the development of the franchise system and that SpeeDee’s obligations to Mobil, including that its franchisees continue to sell Mobil products exclusively, were" }, { "docid": "23097029", "title": "", "text": "economic interest in the sales of the tied seller, whose products are favored by the tie-in. OhioSealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821, 835 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Warner Management Consultants, Inc. v. Data General Corp., 545 F.Supp. 956, 967 (N.D.Ill.1982). The courts have imposed this economic interest requirement because when the seller of the tying goods has no interest in the sale of the tied product, he is not using his power in the tying product market to invade a second market. Warner Management v. Data General, 545 F.Supp. at 967. This economic interest requirement has also been imposed by courts in the Second, Third, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits. See, e.g., Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) 11 63,089, at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, — U.S.-, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983); Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 712 (11th Cir.1984). In the usual tying arrangement, it is not difficult to establish the economic interest element because the seller of the tying product is also the seller of the tied product. Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1407 (9th Cir.1984). However, courts have held that the tying seller’s economic interest does not have to be so direct as long as the tying seller has some form of economic interest in the sale of the tied product, such as the receipt of a commission or rebate. See, e.g., id. at 1407-08; Roberts v. Elaine Powers, 708 F.2d at 1480-81. Furthermore," }, { "docid": "5478713", "title": "", "text": "v. Rockingham Radiologists, Ltd., 820 F.2d 98, 104 (4th Cir.1987) (no tie-in because hospital had no economic interest in CT scan interpretation market); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476 (9th Cir.1983) (favorable loans to franchisor from designated supplier created financial interest). But see Gonzalez v. St. Margaret’s House Housing Devel. Fund Corp., 880 F.2d 1514, 1518 (2d Cir.1989) (financial interest in tied prod uct not required because this requirement was never adopted by Supreme Court); Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1579 n. 12 (11th Cir.1991), cert. denied, 506 U.S. 903, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992) (economic interest requirement only applied in and is most needed in franchise cases). Here, plaintiffs’ allegations suffice to suggest that SpeeDee had an economic interest in Mobil’s sales to the franchisees. Plaintiffs allege that defendants formed a joint venture under which Mobil was to provide financial backing for the development of the franchise system and that SpeeDee’s obligations to Mobil, including that its franchisees continue to sell Mobil products exclusively, were secured by liquidated damages and 40% of its stock. Not every tying arrangement is illegal. A tying arrangement violates Section 1 of the Sherman Act if the seller has “appreciable economic power” in the tying product market, and the arrangement affects a substantial volume of commerce in the tied product market. Kodak, 504 U.S. at 462, 112 S.Ct. at 2079-80. Under Fifth Circuit authority, plaintiffs may establish that a tying arrangement is illegal per se under the antitrust laws by demonstrating that SpeeDee had sufficient control over the tying market, here allegedly the SpeeDee trademarked franchise for fast lube businesses, to have a likely anticompetitive affect on the tied product market, the sale of lubricant products and related equipment and services to the SpeeDee franchise network. See Breaux Brothers Farms, Inc. v. Teche Sugar Co., Inc., 21 F.3d 83, 86 (5th Cir.1994). Alternatively, plaintiff may prevail by establishing that the arrangement is invalid under the rule of reason, under which plaintiff must allege an actual adverse effect on competition in the tied product market. Id." }, { "docid": "17187901", "title": "", "text": "was taken as a determinative indicator that the provider of the tying product or service had no anti-competitive impact upon the market for the tied product or service. See, e.g., Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transp. Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983). These courts dismissed section 1 Sherman Act claims where the seller, accused of providing an alleged tying product or service, did not derive any direct economic benefit from the sale of the product said to be tied. Notable among these decisions is Crawford Transp. Co. in which this court held that Chrysler Corporation “was guilty of no tying arrangement in violation of Section 1 of the Sherman Act” when it required its dealers to purchase new car delivery services from the company with which Chrysler had an exclusive contract along with new cars the dealers bought. 338 F.2d at 939. This court said: Chrysler owned no transportation companies and had no financial interest in any of the transportation carriers to which it tendered traffic for its 1958 and subsequent models. It did not seek to invade and dominate the automobile transportation carriers’ business. True, Chrysler benefited financially to the extent that it saved millions of dollars in the cost of transportation but it received no direct profits from the transportation carriers. Id. The district court cited Crawford Transp. Co., for its reliance upon the “direct economic benefit” rule. On appeal, Dr. Beard concedes that the district court correctly found that Parkview derives no direct economic benefit from the radiological services provided by Bueholz. He also concedes that if Crawford is a correct statement of the law, his section 1 claim fails. He contends, however, that in Jefferson Parish the Supreme Court overruled sub" }, { "docid": "959232", "title": "", "text": "commission or rebate on sales of the tied product. E.g., Ohio-Sealy Mattress Mfg. v. Sealy, Inc., 585 F.2d 821 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir.1977); Falls Church Bratwursthaus, Inc. v. Bratwursthaus Mgmt. Corp., 354 F.Supp. 1237 (E.D.Va.1973). In the absence of such payments courts have rejected tying claims, even where — as generally is the case — the seller of the tying product receives some identifiable economic benefit from the challenged arrangement. Keener v. Sizzler Family Steak Houses, 597 F.2d 453 (5th Cir.1979), aff'g in part [1977] 2 Trade Cas. (CCH) 11 61,682 (N.D.Tex.1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309 (3d Cir.1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Robert’s Waikiki U-Drive v. Budget Rent-A-Car, 491 F.Supp. 1199 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903 (E.D.La.1976). In this case plaintiffs allege that Arthur Rubloff & Co. conferred an economic benefit upon the developer defendants by concealing defects in Carl Sandburg Village, thereby allowing the developer defendants to sell condominium units quickly and at inflated prices, without making necessary repairs. Plaintiffs analogize this alleged economic benefit to the payment of a kickback, rebate or commission, but the cases rejecting tying claims make it clear that other types of economic benefits are not automatically to be equated with commissions. After considering plaintiffs’ allegations, the parties’ arguments and the case law, the court concludes that plaintiffs do not allege the requisite interest, on the part of the developer defendants, in the sale of management services. The court will address several points raised in plaintiffs’ memoranda. First, plaintiffs rely on the statement by the Court of Appeals in the Sealy case, that “there is no illegal tying arrangement where a ‘tying’ company has absolutely no financial interest in the sales of a third company whose products are favored by the tie-in.” 585 F.2d at 835. (Plaintiffs’ Memo in Opposition, p. 18.)" }, { "docid": "12718881", "title": "", "text": "noncompliance with Texaco’s pricing policy, would in and of itself have a coercive effect on dealers’ pricing independence. . The amended complaint was filed on February 10, 1976 by the original nine Texaco service stations dealers, including Yentsch. . Judge Murphy also' thought he had ’submitted a breach of contract claim to the jury upon which it may have based its decision. Although he initially granted Yentsch’s motion for treble damages, he subsequently vacated the trebling order, apparently on the rationale that one could not be sure whether the jury had decided the case on antitrust or non-antitrust grounds. . Appellant urges us to adopt a sixth test for determining an illegal tying, namely whether the seller of the tying product has a direct economic interest in the market for the tied product. We see considerable logic for using such a criterion, and other circuits have already applied it, see Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979); Ohio Sealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821, 835 (7th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1317-18 (3d Cir. 1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934, 938-39 (6th Cir. 1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965). Nevertheless, we do not decide today whether to incorporate this element into our tying analysis, since appellee’s claim fails on another ground. . One commentator has criticized Fortner II, on the ground that a company’s own efficiency and enterprise resulting in a cost advantage over other competitors should not be adequate to prove sufficient economic power. See Jones, The Two Faces of Fortner: Comment on a Recent Antitrust Opinion, 78 Colum.L.Rev. 39, 45 (1978). . The district court’s charge to the jury on what constitutes an illegal tying arrangement was inadequate. The judge charged as follows: So, turning to the other three tie-ins involving glassware, Coca-Cola and Green Stamps, to prevail on any one of these claims, Plaintiff must prove" }, { "docid": "6279357", "title": "", "text": "971 (1965); Nelligan v. Ford Motor Co., 262 F.2d 556 (4th Cir. 1959); Miller Motors, Inc. v. Ford Motor Co., 252 F.2d 441, 446 (9th Cir. 1958); Roberts v. Elaine Powers Figure Salons, Inc., 1981-1 Trade Cas. (CCH) 63,976 (E.D.Cal. 1980); Shaeffer v. Collings, 1980-81 Trade Cas. (CCH) 163,666 at 77,576 (E.D.Pa.1980); Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 491 F.Supp. 1199, 1209 (D.Haw.1980); Rodrigue v. Chrysler Corp., 421 F.Supp. 903, 904-05 (E.D.La. 1976); BBD Transportation Co. v. United States Steel Corp., 1976-2 Trade Cas. (CCH) 161,709 at 69,874 (N.D.Cal.1976); Mid-America ICEE, Inc. v. John E. Mitchell Co., 1973-2 Trade Cas. (CCH) 174,681 at 94,990-91 (D.Ore.1973). Centennial has submitted an affidavit indicating that Data General has no financial interest in the tied sales of credit made by Centennial. See Affidavit of William C. Thompson. However, the complaint does allege a financial interest: the tied maintenance services purchased from Data General would be subcontracted to Centennial. Amended Complaint 127(c). Presumably, Data General would receive a discount on the subcontract for maintenance services in return for requiring Warner to obtain financing from Centennial. That would give Data General a stake in Centennial’s tied sales. Moreover, Warner has submitted affidavits indicating that Data General explicitly told Warner that it would receive central processing units only if it obtained financing from Centennial. Affidavit of Gary Tauss; Affidavit of Henry A. Warner. Experience suggests that when one business promotes another, there is likely to be some financial incentive motivating the promotion. If Data General would have received financial benefits as a result of Centennial’s tied sales, the tying would be actionable. See Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc, 585 F.2d 821, 834-35 (7th Cir. 1978), cert, denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207,1216 (9th Cir. 1977). Most of the evidence regarding the details of Data General and Centennial’s financial arrangements are in the control of the defendants. In light of Warner’s plausible allegation, supported by affidavits, of a financial relation between Data General and Centennial’s tied sales, and" }, { "docid": "7028137", "title": "", "text": "product — which has been adopted by many of the circuits. See Carl Sandburg Village Condominium Association v. First Condominium Development Co., 758 F.2d 203 (7th Cir.1985) (compiling cases so holding from theThird, Fourth, Fifth, Sixth, Seventh, Ninth and Eleventh Circuit Courts of Appeal). While the Second Circuit has not expressly adopted this element of the test, it has expressed its approval. See Yentsch v. Texaco, Inc., supra, 630 F.2d at 57, n. 15. Additionally, this court has itself recognized the economic interest element in a prior case. See Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) ¶ 63,089 at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed. 687 (1984). The rationale for this economic interest requirement is that where the seller of the tying product has no economic interest in the sale of the tied product he is not using his power in the tying product market to invade a second market, which is the conduct the proscription on tying arrangements is designed to prevent. See Carl Sandburg Village, supra, 758 F.2d at 208. The tying claim presented here is that Miller used its “dominant position in the market for brand name nationally distributed beer” (Amended Complaint ¶ 66.7) to foreclose competition in the market consisting of “common carrier trucking companies licensed to haul beer from Miller’s Fulton brewery and other Miller breweries.” {Id., it 67.1). Put another way, the alleged violation consists of Miller’s “coercion” of its distributors to use only those common carrier trucking companies approved by Miller. {Id. at 1166.8). This tying claim is rather unorthodox, and defendants raise numerous arguments why they should be granted summary judgment on these counts of the complaint. We do not think extended discussion of all the points raised is necessary since there are clearly fatal flaws with respect to several elements of plaintiffs’ case in chief. It is sufficient for purposes of dismissing the tying claim to note that it has not been alleged, nor is there a trace of evidence in the record to indicate, that Miller had any economic" }, { "docid": "7608099", "title": "", "text": "air fare is illegal and therefore “unique,” consumers were not forced into purchasing either it, or a Budget rental car. “[WJhere the buyer is free to take either product by itself there is no tying problem even though the seller may also offer the two items as a unit at a single price.” Hyde, — U.S. at - n. 17, 104 S.Ct. at 1558 n. 17 (quoting Northern Pacific Railway Co. v. United States, 356 U.S. 1, 6 n. 4, 78 S.Ct. 514, 518 n. 4, 2 L.Ed.2d 545 (1958)); see Levicoff v. General Motors Corp., 551 F.Supp. 98, 102 (W.D.Pa.1982), aff'd 722 F.2d 732 (3d Cir.1983). The district court also correctly recognized that the airlines did not have a sufficient economic interest in the tied product for the fly-drives to constitute per se illegal tying arrangements. In the typical tying scheme, the seller of the tying product also sells the tied product. The tying product seller’s interest need not be so direct, how ever, as long as the seller has an economic interest in the sale of the tied product. Elaine Powers, 708 F.2d at 1480; Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir.1977). The airlines did not have an adequate interest in the sale of Budget car rentals. Their interest did not go beyond promoting the package in order to sell airplane seats. Simply because Aloha paid $1.00 less to Budget if its employees sold the package does not change the result that, in all cases, it paid Budget if and when a passenger decided to rent a Budget car after flying on Aloha Airlines. The holding in Elaine Powers does not aid Roberts’ claim. In that case, this court reversed the grant of summary judgment because sufficient factual questions existed concerning whether a franchisor of figure salons had an interest in a bookkeeping service that it required the franchisees to use. In Elaine Powers there was evidence tending to show that the bookkeeping service made direct payments to the franchisor and that the owners of the bookkeeping service were also employees (one" }, { "docid": "23097028", "title": "", "text": "the events related in the complaint. Car Carriers v. Ford Motor, 745 F.2d at 1106; Sutliff v. Donovan, 727 F.2d at 654. The Supreme Court has defined a tying arrangement as an agreement by one party to sell a product (the tying product) to another on the condition that the buyer also purchase a different product (the tied product). Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518-519, 2 L.Ed.2d 545 (1958). In order to establish the per se illegality of a tying arrangement, a plaintiff must show that: (1) the tying arrangement is between two distinct products or services, (2) the defendant has sufficient economic power in the tying market to appreciably restrain free competition in the market for the tied product, and (3) a not insubstantial amount of interstate commerce is affected. Id.; Moore v. Matthews & Co., 550 F.2d 1207, 1212 (9th Cir.1977). In addition, this circuit has held that an illegal tying arrangement will not be found where the alleged tying company has absolutely no economic interest in the sales of the tied seller, whose products are favored by the tie-in. OhioSealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821, 835 (7th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Warner Management Consultants, Inc. v. Data General Corp., 545 F.Supp. 956, 967 (N.D.Ill.1982). The courts have imposed this economic interest requirement because when the seller of the tying goods has no interest in the sale of the tied product, he is not using his power in the tying product market to invade a second market. Warner Management v. Data General, 545 F.Supp. at 967. This economic interest requirement has also been imposed by courts in the Second, Third, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits. See, e.g., Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) 11 63,089, at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, — U.S.-, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984); Venzie Corp. v. United States Mineral Products Co., Inc., 521 F.2d 1309, 1317 (3d Cir.1975); Miller Motors, Inc. v." }, { "docid": "7137673", "title": "", "text": "use the Mister Softee trademark (the tying product) on their purchase of supplies (the tied product) from a designated supplier. Mister Softee claimed that it had no economic interest in the sale of tied products by Ro-Fi, a named defendant, designated supplier of Mister Softee ice cream mix and other merchandise, and operator of a Mister Softee truck depot. The court rejected that claim, holding that Mister Sof-tee was financially involved in the sale of tied products to franchisees. It sold some of the tied products to Ro-Fi and some of the ingredients of the ice cream mix to the dairy which sold the mix to Ro-Fi. In addition, Mister Softee used the tie-in as part of the consideration given to a third defendant to induce that party to act as the regional distributor. Id. at 77,424. These cases suggest that economic interest may take a form other than profit from a direct sale of the tied product by the seller of the tying product. The involvement of a third party in a financial transaction, however, may insulate the seller of the tying product from an allegation of restraint of trade in the absence of evidence that the defendant has an economic interest in the sale of the tied product. In Keener v. Sizzler Family Steak Houses, 597 F.2d 453 (5th Cir.1979), for instance, the court held that the defendant franchisor had no financial interest in the building contractor whom it had designated to build a new franchise restaurant. The franchisor received no income from the contractor’s sales and no rental income from the building. “There is no illegal tying arrangement where a ‘tying’ company has absolutely no interest in the sales of a third company whose products are favored by the tie-in.” Id. at 456. Where, as here, however, there is evidence of direct payments from the third company to the franchisor and one of its employees, a triable issue of fact is presented. Elaine Powers argues that Roberts must raise more than mere allegations to show the existence of a genuine issue of material fact. Roberts does raise" }, { "docid": "23097030", "title": "", "text": "Ford Motor Co., 252 F.2d 441, 446-47 (4th Cir.1958); Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir.1979); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934, 939 (6th Cir.1964), cert. denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d 971 (1965); Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478-81 (9th Cir.1983); Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 712 (11th Cir.1984). In the usual tying arrangement, it is not difficult to establish the economic interest element because the seller of the tying product is also the seller of the tied product. Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1407 (9th Cir.1984). However, courts have held that the tying seller’s economic interest does not have to be so direct as long as the tying seller has some form of economic interest in the sale of the tied product, such as the receipt of a commission or rebate. See, e.g., id. at 1407-08; Roberts v. Elaine Powers, 708 F.2d at 1480-81. Furthermore, the economic interest requirement is not met where a plaintiff merely alleges that the tying seller is receiving substantial revenue as a result of his sale of two products as a package. Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 491 F.Supp. 1199, 1209 (D.Hawaii 1980), aff'd, 732 F.2d 1403 (9th Cir.1984). Thus, plaintiff does not establish the requisite economic interest in the tied product market merely by alleging that the tying seller is receiving a profit from the transaction as a whole. Id. In the present case, the district court held that the Condominium Associations had not alleged the requisite economic interest on the part of the tying sellers of condominium units in the management services (tied product) market. The district court noted that the case law clearly differentiates between cases where the tying and tied product are sold by the same seller and cases where the tying and tied products are sold by different, unaffiliated sellers. In the latter case, the district court held that a plaintiff would have to allege that" }, { "docid": "9759043", "title": "", "text": "SmithKline. This is an untenable position. Lilly had huge, monopoly-type dominance, in the market for Keflin and Keflex — two patented products — and in terms of an antitrust analysis, that is close to the maximum uniqueness possible. Other cases that the Court has examined support its conclusion that Robert’s has not shown the requisite coercion so as to make out a prima facie case of a per se violation of the Sherman Act. Defendant also argues that because neither Aloha nor Pan American had any direct economic interest in the tied product market, there was no tie-in. Robert’s avers that because 1) each fly-drive package sold by Budget increased airline revenues; 2) Budget sometimes paid commissions to Aloha and 3) Budget paid some incentive bonuses to Aloha and Pan American employees, there was the requisite economic interest in the tied product market. The law is straight forward in this area. The tying seller must have an economic interest in the tied market, see Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1216 (9th Cir. 1977), and classically this takes the form of his trying to introduce a product into the tied market. See, e. g., Rodrigue v. Chrysler Motors Corp., 421 F.Supp. 903, 904 (E.D.La.1976). In order for one to establish an illegal tying agreement, it is necessary to show that the tying arrangement involves a seller who not only competes in the tying item’s line of commerce, but also participates for profit in the area of competition to which the tied item belongs. See also Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979) (“There is no illegal tying arrangement where a ‘tying’ company has absolutely no interest in the sales of a third company whose products are favored by the tie-in”); BBD Transportation Co., Inc. v. United States Steel Corp., 1976-2 Trade Cases (CCH) ¶ 61,079 at 69,874 (N.D.Cal. August 25, 1976). Plaintiffs’ allegation that “substantial revenue” flowed to the airlines does not meet the economic interest test. Any time two products are sold as a package, there is presumably some" }, { "docid": "6279355", "title": "", "text": "(E.D.Pa.1976). Here, Warner was a purchaser of the tied items, and the tying arrangement prevented it from entering the market for the tied items. Thus, the injury alleged by Warner is characteristic of the injury that a rule of reason challenge to a tying arrangement addresses. Warner has standing to mount a reasonableness challenge to defendants’ conduct in count II and III of the complaint. Since the only issues Data General raises involve standing, the preceding discussion resolves Data General’s motion to dismiss. However, Centennial has raised two issues unique to it which must be separately addressed. First, Centennial argues that the tying arrangement involving it cannot be actionable, since Data General has no financial stake in Centennial’s tied sales. Warner responds that no such stake is required, and even if it is, Data General did have a financial interest in Centennial’s tied sales of credit. Warner’s position that a tying claim can be brought where the seller of the tying goods has no financial interest in the sales of the tied items is without support. Where the seller of the tying goods has no interest in the sale of the tied goods, then it is not using its power in the market for the tying item to invade a second market; the sales of the tied goods are independently priced by a separate financial entity who presumably has no power to charge a noncompetitive price. Under such circumstances, tying poses no danger to competition, and courts have universally held that such tying is not actionable. See Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979); Ohio-Sealy Mattress Manu- factoring Co. v. Sealy, Inc., 585 F.2d 821, 834-35 (7th Cir. 1978), cert, denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 377 n.9 (5th Cir. 1977); Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1317-18 (3d Cir. 1975); Crawford Transport Co. v. Chrysler Corp., 338 F.2d 934 (6th Cir. 1964), cert, denied, 380 U.S. 954, 85 S.Ct. 1088, 13 L.Ed.2d" }, { "docid": "9759044", "title": "", "text": "(9th Cir. 1977), and classically this takes the form of his trying to introduce a product into the tied market. See, e. g., Rodrigue v. Chrysler Motors Corp., 421 F.Supp. 903, 904 (E.D.La.1976). In order for one to establish an illegal tying agreement, it is necessary to show that the tying arrangement involves a seller who not only competes in the tying item’s line of commerce, but also participates for profit in the area of competition to which the tied item belongs. See also Keener v. Sizzler Family Steak Houses, 597 F.2d 453, 456 (5th Cir. 1979) (“There is no illegal tying arrangement where a ‘tying’ company has absolutely no interest in the sales of a third company whose products are favored by the tie-in”); BBD Transportation Co., Inc. v. United States Steel Corp., 1976-2 Trade Cases (CCH) ¶ 61,079 at 69,874 (N.D.Cal. August 25, 1976). Plaintiffs’ allegation that “substantial revenue” flowed to the airlines does not meet the economic interest test. Any time two products are sold as a package, there is presumably some benefit to both parties. There was an economic interest in the transaction — more particularly the part of the transaction that involved the payment for airfare — but that is not an economic interest in the tied product market. Showing revenue from the transaction as a whole is not enough. Similarly, the fact that Budget provided sales incentives to Aloha and Pan American employees did not result in Aloha and Pan American having an economic interest in the tied market. Plaintiffs’ claim as to rebates paid to Aloha by Budget presents a slightly different problem. The original $7 fly-drive agreement contained a provision that for every package that Aloha sold, Budget would pay Aloha one dollar. In Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc., 585 F.2d 821 (7th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979), the court stated that in order for there to be a tying arrangement, the tying company must have a financial interest in the sales of the tied product. 585 F.2d at 834-35. The" }, { "docid": "7028136", "title": "", "text": "2 L.Ed.2d 545 (1958). Tying arrangements are harmful to competition in that competitors are denied free access to the market for the tied product, “not because the party imposing the tying requirements has a better product or a lower price, but because of his power or leverage in another market.” Id. at 6, 78 S.Ct. at 518. In order to establish an illegal tying arrangement plaintiff must demonstrate: (1) two distinct products or services (tying and tied) are involved; (2) evidence of actual coercion by the seller that in fact forced the buyer to accept the tied product; (3) sufficient economic power in the tying product market to coerce purchaser acceptance of the tied product; (4) anti-competitive effects in the tied market; (5) involvement of a “not insubstantial” amount of interstate commerce in the tied product market. Yentsch v. Texaco, Inc., 630 F.2d 46, 56-57 (2d Cir.1980). There is a sixth element to the test — that the seller of the tying product have some degree of economic interest in the market for the tied product — which has been adopted by many of the circuits. See Carl Sandburg Village Condominium Association v. First Condominium Development Co., 758 F.2d 203 (7th Cir.1985) (compiling cases so holding from theThird, Fourth, Fifth, Sixth, Seventh, Ninth and Eleventh Circuit Courts of Appeal). While the Second Circuit has not expressly adopted this element of the test, it has expressed its approval. See Yentsch v. Texaco, Inc., supra, 630 F.2d at 57, n. 15. Additionally, this court has itself recognized the economic interest element in a prior case. See Esposito v. Mister Softee, Inc., 1980-1 Trade Cas. (CCH) ¶ 63,089 at 77,423-24 (E.D.N.Y. Dec. 14, 1979), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed. 687 (1984). The rationale for this economic interest requirement is that where the seller of the tying product has no economic interest in the sale of the tied product he is not using his power in the tying product market to invade a second market, which is the conduct the proscription on tying arrangements is designed to prevent. See" }, { "docid": "7608095", "title": "", "text": "reason. We agree with and adopt the district court’s reasoning in its opinion reported at 491 F.Supp. 1206-10, 1212-17, and add the following observations. Notwithstanding Roberts’ assertions to the contrary, summary judgment may be appropriate in antitrust actions when there is no “significant probative evidence tending to support the complaint.” First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); see Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, Inc., 637 F.2d 1376, 1381 (9th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 109 (1981). Especially in cases where motive and intent are not determinative, summary judgment may be used in antitrust actions. Roberts v. Elaine Powers Figure Salons, Inc., 708 F.2d 1476, 1478 (9th Cir.1983). Our review, which is de novo, id., convinces us that summary judgment was called for in this case. 1. Per Se Illegal Tying Arrangement Simply stated, a tying arrangement is when “a seller refuses to sell one product (the tying product) unless the buyer also purchases another (the tied product).” Elaine Powers, 708 F.2d at 1478-79. Three primary elements establish a per se illegal tying arrangement: (1) a tie-in between two distinct products or services; (2) sufficient economic power in the tying product market to impose significant restrictions in the tied product market; and (3) an effect on a not-insubstantial volume of commerce in the tied product market. Id. Roberts argues, and we assume, that it had adequate support for the first and third elements. It is the second element which concerned the district court. Another concern of the court involved the related requirement that there must be some modicum of coercion exerted upon the purchaser of the tied product by the seller of the tying product. Id. The court also found another element missing, which is the seller of the tying product must have an economic interest in the tied product for there to be per se illegality. Id. In effect, Roberts reverses the ostensible nature of the fly-drive agreements to fit them into the scheme of per se" } ]

[ { "docid": "6279474", "title": "", "text": "Castleman, — U.S. —, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014): “[Pjhysical force” means force “capable of causing physical pain or injury to another person,” Johnson, 559 U.S. at 140,130 S.Ct. 1265, and “it is impossible to cause bodily injury without using force ‘capable of producing that result.” 134 S.Ct. at 1416-17 (Scalia, J., concurring). “Physical force” is “force exerted by and through concrete bodies,” as opposed to “intellectual force or emotional force,” Johnson, 559 U.S. at 138, 130 S.Ct. 1265, and it need not be applied directly to the body of the victim. Hypothetical scenarios involving no physical contact by the perpetrator (luring a victim to drink poison or infecting a victim with a disease) do not avoid coverage under § 924(e)(2)(B)(i). See Castleman, 134 S.Ct. at 1414-15 (opinion of the Court). Winston’s effort to show daylight between physical injury and physical force is therefore unsuccessful. See United States v. Vinton, 631 F.3d 476, 485-86 (8th Cir. 2011). The district court properly counted the battery conviction as a violent felony. For these reasons, the district court did not err in concluding that Winston had been convicted of at least three violent felonies or serious drug offenses, and that he was subject to enhanced punishment as an armed career criminal. The judgment of the district court is affirmed. . The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas. . The statute provided as follows: la) A person commits battery in the second degree if: (1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person; (2) With the purpose of causing physical injury to another person, he causes physical injury to any person fay means of a deadly weapon other than a firearm; (3) He recklessly causes serious physical injury to another person by means of a deadly weapon; or (4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be: [a member of one of the listed protected classes]. Ark. Code Ann. § 5-13-202(a) (1997)." } ]

[ { "docid": "13824118", "title": "", "text": "threatened use of physical force”); McBride, 826 F.3d at 296 (defining intimidation as \"conduct and words ... calculated to create the impression that any resistance or defiance ... would be met by force”); McNeal, 818 F.3d at 153 (“Bank robbery under. § 2113(a), ‘by intimidation,’ requires the threatened use of physical force.”). .In his opening brief, Wilson argues that § 2113(a) encompasses conduct that does not meet the Supreme Court’s definition of “physical force,” i.e., \"violent force—that is, force capable of causing physical pain or injury to another person[,]” Johnson, 559 U.S. at 140, 130 S.Ct. 1265, because one can be convicted under § 2113(a) for threatening to expose another to a hazardous substance. At oral argument, however, Wilson conceded that that position is untenable in light of our recent opinion in United States v. Chapman, 866 F.3d 129, which was published after Wilson filed his opening brief. Because Chapman forecloses that argument, we do not further address it here. See id. at 133 (“[T]he ‘use’ of ‘physical force,' as used in § 4B1,2(a)(1), involves the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.”). . The proposition that a defendant can be convicted under § 2113(a) without intending to intimidate is not without support in the case law. See United States v. Kelley, 412 F,3d 1240, 1244 (11th Cir. 2005) (explaining that a conviction pursuant to § 2113(a) does not require the defendant \"intend for an act to be intimidating”); United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003) (holding the intimidation element of § 2113(a)1 satisfied \"if an ordinary person in [the teller’s] position reasonably could infer a threat of bodily harm ... whether or not [the defendant] actually intended the intimidation” (first alteration and emphasis in original) (quotation marks and citation omitted)). . See also Harper, 869 F.3d at 626 (rejecting contention that Elonis created a new global definition of “threat” requiring the government prove the same mens rea in criminal statutes other than § 875(c)); Ellison, 866 F.3d at 39" }, { "docid": "14611487", "title": "", "text": "(2014) (Scalia, J., concurring) (bodily injury necessarily involves the use of violent force). Bank robbery by intimidation thus requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard. We see no reason to interpret the term “intimidation” in the federal carjacking statute any differently. To be guilty of carjacking “by intimidation,” the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force. It is particularly clear that “intimidation” in the federal carjacking statute requires a contemporaneous threat to use force that satisfies Johnson because the statute requires that the defendant act with “the intent to cause death or serious bodily harm.” 18 U.S.C. § 2119; see Holloway v. United States, 526 U.S. 1, 12, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (“The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car.”). As a result, the federal offense of carjacking is categorically a crime of violence under § 924(c). AFFIRMED." }, { "docid": "13824119", "title": "", "text": "the intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.”). . The proposition that a defendant can be convicted under § 2113(a) without intending to intimidate is not without support in the case law. See United States v. Kelley, 412 F,3d 1240, 1244 (11th Cir. 2005) (explaining that a conviction pursuant to § 2113(a) does not require the defendant \"intend for an act to be intimidating”); United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003) (holding the intimidation element of § 2113(a)1 satisfied \"if an ordinary person in [the teller’s] position reasonably could infer a threat of bodily harm ... whether or not [the defendant] actually intended the intimidation” (first alteration and emphasis in original) (quotation marks and citation omitted)). . See also Harper, 869 F.3d at 626 (rejecting contention that Elonis created a new global definition of “threat” requiring the government prove the same mens rea in criminal statutes other than § 875(c)); Ellison, 866 F.3d at 39 (adopting the McNeal standard); Campbell, 865 F.3d at 856 (\"Intimidation as an element of a bank robbery does not occur by negligent or accidental conduct. It is caused by an intentional threat of force.”); McBride, 826 F.3d at 296 (\"The defendant must at least know that his actions would create the impression in an ordinary person that resistance would be met by force. A taking by intimidation under § 2113(a) therefore involves the threat to use physical force.”). . Wilson maintains that every circuit court has misread Carter. As explained above, we do not agree with Wilson on that point. Nevertheless, we briefly note three hypotheticals that Wilson poses for his contention that § 2113(a) c.an be violated by negligent or reckless behavior; (1) a defendant could rob a bank with no intent to intimidate based on a sincere belief that the bank teller would simply hand over money on demand based on a bank’s policy to comply with all demands for money, regardless of the perceived seriousness of the threat; (2) a drug addict" }, { "docid": "22941418", "title": "", "text": "commits that offense with poison. Indeed, McNeal and Stoddard have not identified a single bank robbery prosecution where the victim feared bodily harm from something other than violent physical force. We therefore decline to read Woodrwp to mean that a bank robbery victim is “intimidat[ed]” within the meaning of § 2113(a) when she reasonably fears bodily harm from something other than violent physical force. Because intimidation entails a threat to use violent physical force, and not merely a threat to cause bodily injury, Torres-Miguel does not alter our conclusion that § 2113(a) bank robbery is a crime of violence under the § 924(c)(3) force clause. B. In sum, we are satisfied that bank robbery under 18 U.S.C. § 2113(a) is a “crime of violence” within the meaning of the force clause of 18 U.S.C. § 924(c)(3), because it “has as an element the use, attempted use, or threatened use of physical force” — specifically, the taking or attempted taking of property “by force and violence, or by intimidation.” Because bank robbery is a lesser-included offense of § 2113(d) armed bank robbery, armed bank robbery is also a crime of violence under the force clause. McNeal and Stod-dard’s challenge to their brandishing convictions therefore fails at the first step of plain error review, in that the trial court did not err in concluding that armed bank robbery qualifies as a crime of violence. V. Pursuant to the foregoing, we reject each of the contentions of error and affirm the judgments. AFFIRMED . Citations herein to “J.A. _” refer to the contents of the Joint Appendix filed by the parties in this appeal. . Prior to trial, Link entered into a plea agreement with the government, pursuant to which he pleaded guilty to Counts Five and Seven in exchange for his cooperation against McNeal and Stoddard. Link thereafter refused, however, to testify against his coconspirators. ' The trial court found Link in breach of the plea agreement and sentenced him to thirty-five years in prison. Link appealed the judgment, and we affirmed. See United States v. Link, 606 Fed.Appx. 80 (4th Cir.2015)." }, { "docid": "10631361", "title": "", "text": "low threshold of violent force is necessarily satisfied in attempted bank robbery by intimidation. A bank employee can reasonably believe that a robber’s demands for money to which he is not entitled will be met with violent force of the type satisfying Curtis Johnson because bank robbery under § 2113(a) inherently contains a threat of violent physical force. Armour also argues that his conviction should be vacated because robbery under § 2113(d) could be accomplished by “assault.” The jury was instructed here that “assault” means “an intentional attempt to inflict, or threat to inflict, bodily injury upon another person with the apparent and present ability to cause such injury that creates in the victim a reasonable fear or apprehension of bodily harm. An assault may be committed without actually touching, striking, or injuring the other person.” Under § 2113(d), the “assault” putting the victim in fear must be “by the use of a dangerous weapon or device,” so we need not worry about such hypothetical minor injuries as paper cuts or hits from painful snowballs. Cf. Flores v. Ashcroft, 350 F.3d 666, 670, 672 (7th Cir. 2003) (misdemeanor battery with bodily injury not a crime of domestic violence under immigration statute because such minor injuries could satisfy criminal statute). Thus, for the same reasons that robbery by intimidation under § 2113(a) qualifies as a crime of violence under § 924(c), so does robbery by assault by a dangerous weapon or device under § 2113(d). The victim’s fear of bodily harm is necessarily fear of violent physical force that is inherent in armed bank robbery. For these reasons, robbery by intimidation under § 2113(a) and robbery by assault by a dangerous weapon or device under § 2113(d) have as an element the use, attempted use, or threatened use of physical force against the person or property of another and thus qualify as crimes of violence under § 924(c). Accord, In re Sams, 830 F.3d 1234, 1238 (11th Cir. 2016); In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). We" }, { "docid": "7053659", "title": "", "text": "qualify as a “crime of violence” because it does not fit under § 924(c)(3)(A). Jones’s argument that § 924(c)(3)(B) is unconstitutionally vague under Johnson is foreclosed by our en banc decision in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016). In Gonzalez-Longoria, we held that the definition of “crime of violence” found in 18 U.S.C. § 16(b) remains constitutional in the aftermath of Johnson. Gonzalez-Longoria, 831 F.3d at 675-77. The definition of “crime of violence” found in § 16(b) is identical to the definition found in § 924(c)(3)(B); therefore, the definition of “crime of violence” under § 924(c)(3)(B) is not unconstitutionally vague. See United States v. Chapman, 851 F.3d 363, 374-75 (5th Cir. 2017). Further, contrary to Jones’s assertion, carjacking fits under the definition set forth in § 924(c)(3)(A) — it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Section 2119 provides that a person commits an offense when, “with the intent to cause death or serious bodily harm,” he takes a motor vehicle “by force and violence or by intimidation.” 18 U.S.C. § 2119. Jones contends that because carjacking can be committed by intimidation (i.e., fear of bodily harm), and because a threat to cause harm is not the same as a threat to use force, the “use, attempted use, or threatened use of physical force against the person or property of another” is not an element that must be satisfied in order to convict a defendant under the federal carjacking statute. Therefore, Jones argues, carjacking is not a “crime of violence” under § 924(c)(3)(A). Our own precedent, although in the bank robbery context, leads us to conclude that a crime that has as an element a taking “by force and violence or by intimidation” is a “crime of violence” under § 924(c)(3)(A). See United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017) (holding that the bank robbery statute, 18 U.S.C. § 2113(a) — which similarly requires taking property “by force and violence, or by intimidation” — is a crime of violence" }, { "docid": "10140251", "title": "", "text": "have, as an element, the use, attempted use, or threatened use of physical force against the person of another. In United States v. Wright, 957 F.2d 520 (8th Cir. 1992), however, this court held that robbery by intimidation under § 2113(a) categorically involves the threatened use of force: “Intimidation means the threat of force.” Id. at 521 (quotation omitted). Wright thus controls here unless it has been superseded by an intervening decision of the Supreme Court. Harper suggests that Wright was abrogated by Elonis v. United States, _ U.S. _, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), but we see no inconsistency between the two decisions. Elonis held that the crime of transmitting a communication containing a threat under 18 U.S.C. § 875(c) requires proof that the defendant made the communication with the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat, or, possibly, with reckless disregard for the likelihood that the communication would be so viewed. Id. at 2012-13. Harper reasons that because “intimidation” in § 2113(a) does not require proof that the robber intentionally intimidated a victim, see United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003), robbery by intimidation does not have as an element the threatened use of force. In other words, he seems to contend, “threatened use of force” after Elonis requires a specific intent to issue a threat. Elonis did not announce a universal definition of “threat” that always requires the same mens rea. To the contrary, the Court observed that “threat,” as commonly defined, “speak[s] to what the statement conveys — not to the mental state of the author.” 135 S.Ct. at 2008. Elonis held only that a certain criminal statute required proof of a particular mens rea. The Court did not redefine the phrase “threatened use of force” as it appears in the sentencing guidelines. Harper also mentions fleetingly the possibility that a person could be intimidated without a robber threatening to use violent force — that is, force “capable of causing physical pain or injury to another person.” Johnson v. United" }, { "docid": "7053663", "title": "", "text": "case does not authorize us to disregard our Court’s strong rule that we cannot overrule the prior decision.”). . In Brewer, the defendants, who were convicted of bank robbery, argued that a person can commit bank robbery by intimidation without threatened, attempted, or actual use of force. Brewer, 848 F.3d at 715. We concluded that bank robbery necessarily requires at least an implicit threat to use violent force. Id. (\"The kind of ‘intimidation’ that suffices to put a victim in fear of bodily injury during the course of a bank robbery, and which would in turn allow a defendant to complete such a robbery, is the very sort of threat of immediate, destructive, and violent force required to satisfy the ‘crime of violence’ definition. It is hard to imagine any successful robbery accomplished by threatening some far removed reprisal that does not involve physical force.”). Because bank robbery, like carjacking, requires a taking \"by force and violence or by intimidation,” we believe our holding in Brewer is sufficiently analogous to the federal carjacking statute to conclude that carjacking is also a crime of violence under § 924(c)(3)(A). See also United States v. Buck, 847 F.3d 267, 274-75 (5th Cir. 2017)." }, { "docid": "23247913", "title": "", "text": "States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989)). If either robbery by means of violence or by means of intimidation fails to match the force clause definition, the crime is not a violent felony. See Gardner, 823 F.3d at 803. Doctor offers several reasons why South Carolina robbery is not a categorical match, largely focusing on robbery by intimidation. He first contends that a robber may intimidate a victim without “the use, attempted use, or threatened use of physical force.” A review of South Carolina law reveals, however, that intimidation necessarily involves threatened use of physical force. The South Carolina Supreme Court has indicated that a robber intimidates a victim by threatening force. See State v. Mitchell, 382 S.C. 1, 675 S.E.2d 435, 437 (2009) (stating that robbery involves either “employment of force or threat of force”) (quoting State v. Moore, 374 S.C. 468, 649 S.E.2d 84, 88 (Ct. App. 2007)). The issue, then, is whether intimidation under South Carolina law requires the force threatened to be “physical force” within the meaning of the ACCA. The Supreme Court has defined “physical force” as “violent force— that is, force capable of causing physical pain or injury to another person.” Johnson v. United States (“Johnson I”), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). To constitute intimidation in South Carolina, a robbery victim must “feel a threat of bodily harm” based on the defendant’s acts. Rosemond, 589 S.E.2d at 759. We find that these two standards align. There is no meaningful difference between a victim feeling a threat of bodily harm and feeling a threat of physical pain or injury. See United States v. McNeal, 818 F.3d 141, 154 (4th Cir. 2016).. It follows that to constitute intimidation in South Carolina, a robbery victim must feel a threat of physical force based on the defendant’s acts. In other words, a defendant intimidates a victim by threatening physical force. Notably, the South Carolina Supreme Court modeled its definition of intimidation in robbery cases after the one this Circuit uses in federal bank robbery cases under 18 U.S.C. § 2113(a)." }, { "docid": "14611486", "title": "", "text": "Fourth and Fifth Circuits construed “intimidation” in the federal carjacking statute to mean the same thing as its counterpart in the federal bank robbery statute. We agree with the analysis of our sister circuits. We, too, have held that “intimidation” as used in the federal bank robbery statute requires that a person take property “in such a way that would put an ordinary, reasonable person in fear of bodily harm,” which necessarily entails the “threatened use of physical force.” United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) (citation omitted). As a result, in our court, too, federal bank robbery constitutes a crime of violence. Id. We have not addressed in a published decision whether Selfa’& holding remains sound after Johnson, but we think it does. A defendant cannot put a reasonable person in fear of bodily harm without threatening to use “force capable of causing physical pain or injury.” Johnson, 559 U.S. at 140, 130 S.Ct. 1265; see United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 1417, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring) (bodily injury necessarily involves the use of violent force). Bank robbery by intimidation thus requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard. We see no reason to interpret the term “intimidation” in the federal carjacking statute any differently. To be guilty of carjacking “by intimidation,” the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force. It is particularly clear that “intimidation” in the federal carjacking statute requires a contemporaneous threat to use force that satisfies Johnson because the statute requires that the defendant act with “the intent to cause death or serious bodily harm.” 18 U.S.C. § 2119; see Holloway v. United States, 526 U.S. 1, 12, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (“The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the" }, { "docid": "22941415", "title": "", "text": "defendant possessed knowledge with respect to the actus reus of the crime (here, the taking of property of another by force and violence or intimidation).” See 530 U.S. 255, 268, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). Put differently, the prosecution must show that the defendant knew “the facts that ma[de] his conduct fit the definition of the offense.” See United States v. Elonis, — U.S. —, 135. S.Ct. 2001, 2009, 192 L.Ed.2d 1 (2015). Thus, to secure a conviction of bank robbery “by intimidation,” the government must prove not only that the accused knowingly took property, but also that he knew that his actions were objectively intimidating. Bank robbery under § 2113(a) therefore satisfies the criterion we articulated in Garcia in 2006 that, to qualify as a crime of violence, an offense must require either specific intent or knowledge with respect to the use, threatened use,- or attempted use of physical force. '■ c. In our Torres-Miguel decision in 2012, we further examined what it means for a crime to have as an element the “use” of physical force. We concluded that a California statute, which prohibited willfully threatening to commit'a crime that would result in death or great bodily injury, failed to qualify as a crime of violence under Guidelines section 2L1.2. See Torres-Miguel, 701 F.3d at 166. Our ruling rested on the distinction between using physical force and causing bodily injury. We reasoned that “a crime may result in death or serious injury without involving use of physical force.” Id. at 168. Invoking an example offered by the Fifth Circuit in addressing the same question, we observed that threatening to poison someone could contravene § 422(a) without involving the use or threatened use of force. Id. at 168-69. Relying on the distinction we drew in Torres-Miguel between using physical' force and causing bodily injury, McNeal and Stoddard contend that “intimidation,” as we defined it in Woodrwp — words or conduct from which “an ordinary person ... reasonably could infer a threat of bodily harm,” see 86 F.3d at 363 — is not the same as a threat" }, { "docid": "10140253", "title": "", "text": "States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); see United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir. 2012). This argument fails because bank robbery by intimidation requires proof that the victim “reasonably could infer a threat of bodily harm” from the robber’s acts. Yockel, 320 F.3d at 824 (quotation omitted). A threat of bodily harm requires a threat to use violent force because “it is impossible to cause bodily injury without using force ‘capable of producing that result.” United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017) (quoting United States v. Castleman, _ U.S. _, 134 S.Ct. 1405, 1416-17, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring)). The holding of Wright therefore controls: bank robbery by intimidation under § 2113(a) is a crime of violence under the force clause, because it involves a threat ened use of force. See also Allen v. United States, 836 F.3d 894, 894-95 (8th Cir. 2016) (per curiam) (holding that bank robbery in violation of § 2113(a) and (e) is a “crime of violence” under the force clause of 18 U.S.C. § 924(c)(3)(A)). The district court correctly ruled that Harper qualified as a career offender. We need not address whether Harper also qualifies as a career offender because § 4B 1.2(a)(2) enumerates “robbery” as a crime of violence. Cf. United States v. Jenkins, 651 Fed.Appx. 920, 925 (11th Cir. 2016) (per curiam). The judgment of the district court is affirmed. . The Honorable Michael J. Davis, United States District Judge for the District of Minnesota. . Effective August 2016, the Sentencing Commission amended § 4B 1.2(a)(2) to include \"robbery” as an enumerated crime of violence; the previous guideline enumerated \"robbery” as a crime of violence in the commentary. USSG § 4B1.2, comment, (n.l) (2015), Harper committed the bank robbery here in January 2016, but was sentenced in September 2016, so the amended guideline applies unless its -use would violate the Ex Post Facto Clause of the Constitution. USSG § 1B1.11(a), (b)(1). Harper’s current position is that we should apply the amended guideline," }, { "docid": "10140252", "title": "", "text": "2113(a) does not require proof that the robber intentionally intimidated a victim, see United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003), robbery by intimidation does not have as an element the threatened use of force. In other words, he seems to contend, “threatened use of force” after Elonis requires a specific intent to issue a threat. Elonis did not announce a universal definition of “threat” that always requires the same mens rea. To the contrary, the Court observed that “threat,” as commonly defined, “speak[s] to what the statement conveys — not to the mental state of the author.” 135 S.Ct. at 2008. Elonis held only that a certain criminal statute required proof of a particular mens rea. The Court did not redefine the phrase “threatened use of force” as it appears in the sentencing guidelines. Harper also mentions fleetingly the possibility that a person could be intimidated without a robber threatening to use violent force — that is, force “capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); see United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir. 2012). This argument fails because bank robbery by intimidation requires proof that the victim “reasonably could infer a threat of bodily harm” from the robber’s acts. Yockel, 320 F.3d at 824 (quotation omitted). A threat of bodily harm requires a threat to use violent force because “it is impossible to cause bodily injury without using force ‘capable of producing that result.” United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017) (quoting United States v. Castleman, _ U.S. _, 134 S.Ct. 1405, 1416-17, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring)). The holding of Wright therefore controls: bank robbery by intimidation under § 2113(a) is a crime of violence under the force clause, because it involves a threat ened use of force. See also Allen v. United States, 836 F.3d 894, 894-95 (8th Cir. 2016) (per curiam) (holding that bank robbery in violation of § 2113(a) and (e) is a “crime of" }, { "docid": "22941411", "title": "", "text": "physical force.” See 131 F.3d 685, 688 (7th Cir.1997), Moreover, to qualify as intimidation, the degree of “force” threatened must be violent force — that is, force capable of causing physical pain or injury. See United States v. Wagstaff, 865 F.2d 626, 627 (4th Cir.1989) (emphasizing that intimidation occurs “when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts”). . b. Although Johnson addressed the definition of “physical force” under the ACCA force clause, the Supreme Court’s Leocal decision, six years earlier, explained what it means to “use” physical force. In Leo-cal, the Court ruled that a Florida offense of driving under the influence and causing serious injury was not a crime of violence under the force clause of 18 U.S.C. § 16. See 543 U.S. at 9-10, 125 S.Ct. 377. The Court explained that the “key phrase in § 16(a) — ‘the use ... of physical force against the person or property of another’ — most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Id. at 9, 125 S.Ct. 377 (alteration in original). Because the Florida Supreme Court had interpreted the DUI statute as lacking a mens rea requirement, the DUI offense could not qualify as a crime of violence under the force clause. Id. at 7-8, 10, 125 S.Ct. 377. Although Leocal reserved the question of whether a reckless application of force could qualify as a “use” of force, we answered that question two years later by ruling that recklessness was not enough. See Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir.2006). McNeal.and Stoddard insist that bank robbery by “intimidation” is not a crime of violence under the force clause of § 924(c)(3) because, in their view, bank robbery can be committed by recklessly engaging in intimidation. To support that interpretation,-they point to our 1996 decision in United States v. Woodrup, 86 F.3d 359 (4th Cir.1996). Woodrup was convicted of § 2113(a) bank robbery on evidence that he “entered the bank, looked directly at [a] teller ..., walked very quickly across the" }, { "docid": "13824116", "title": "", "text": "v. McNeal, 818 F.3d 141; 157 (4th Cir. 2016) (holding \"bank robbery under ... § 2113(a) is a ‘crime of violence’ within the meaning of ... [the ACCA]”). . The District Court determined that § 2113(a) was a divisible statute because it contained two paragraphs, each containing a separate version of the crime. See Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013) (explaining that a statute is \"divisible” when it \"comprises multiple, alternative versions of the' crime”). Having determined that § 2113(a) was divisible, the District Court applied the modified categorical approach to determine that Wilson was convicted under § 2113(a)’s first paragraph. See id. at 2283-84 (instructing courts to apply the \"modified categorical approach” to divisible statutes). The parties do not dispute those rulings. Accordingly, we proceed straight to the categorical approach, which applies once a court has focused on the relevant statutory provision. Id. at 2285; Brown, 765 F,3d at 188-90. All references to \"§ 2113(a)” throughout this opinion refer only to the first paragraph of § 2113(a). . The word \"intimidate” is defined in the dictionary as \"to make ... fearful” or \"to compel or deter by or as if by threats,” Intimidate, Merriam-Webster Dictionary, https:// www.merriam-webster.com/dictionary/ intimidate (last visited Dec. 4, 2017). . See, e.g., Harper, 869 F.3d at 626 (\"Intimidation means the threat of force.”); Ellison, 866 F.3d at 37 (\"[P]roving 'intimidation' under § 2113(a) requires proving that a threat of bodily harm was made.”); Campbell, 865 F.3d at 856 (\"[Ijntimidation in § 2113(a) means the threat of force.”); Brewer, 848 F.3d at 715 (\"The kind of ‘intimidation’ that suffices to put a victim in fear of bodily injury during the course of a bank robbery, and which would in turn allow a defendant to complete such a robbery, is the very sort of threat of immediate, destructive, and violent force required to satisfy the ‘crime of violence’ definition.”); In re Sams, 830 F.3d at 1239 (quoting and adopting reasoning from United States v. McNeal, 818 F.3d 141, that \"[blank robbery under § 2113(a), ‘by intimidation,' requires the" }, { "docid": "23375131", "title": "", "text": "one take or attempt to take by force and violence or by intimidation, which is what the federal carjacking statute does, satisfies the force clause of § 924(c), which requires the use, attempted use, or threatened use of physical force.” Id (footnote omitted); see United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (reasoning that carjacking by “intimidation” under § 2119 necessarily includes a threat of force and is a crime of violence under § 924(c)(3)(A)). Furthermore, attempted or threatened force against either “the person or property of another” satisfies that elements requirement in § 924(c)(3)(A). Of course, attempted carjacking by “force and violence” (as proscribed in § 2119(1)) is readily recognized as a crime of violence under § 924(c)(3)(A). Yet, our inquiry under the categorical approach must also be whether attempted taking of a car by “intimidation” qualifies, too. The term “intimidation” in the carjacking statute, however, cannot be read-in isolation, but must be considered with the requisite intent under § 2119(1), which is intimidation conduct “with the intent to cause death or serious bodily injury.” Proscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is 'unmistakably a crime of violence also. See United States v. McGuire, 706 F.3d 1333, 1336-38 (11th Cir. 2013) (involving an attempt to disable an aircraft and explaining that an “ ‘active crime’ done ‘intentionally’ against the property of another, with extreme and manifest indifference to the owner of that property and the wellbeing of the passengers” is “unmistakably violent” and “[i]t makes little difference that the physical act, in isolation from the crime, can be done with a minimum of force”); United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (analyzing “intimidation” in the similarly worded bank robbery statute in 18 U.S.C. § 2113(a) and concluding that “intimidation occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts”); see also In re Sams, 830 F.3d 1234, 1238-39 (11th Cir. 2016) (concluding that a §" }, { "docid": "13824117", "title": "", "text": "§ 2113(a). . The word \"intimidate” is defined in the dictionary as \"to make ... fearful” or \"to compel or deter by or as if by threats,” Intimidate, Merriam-Webster Dictionary, https:// www.merriam-webster.com/dictionary/ intimidate (last visited Dec. 4, 2017). . See, e.g., Harper, 869 F.3d at 626 (\"Intimidation means the threat of force.”); Ellison, 866 F.3d at 37 (\"[P]roving 'intimidation' under § 2113(a) requires proving that a threat of bodily harm was made.”); Campbell, 865 F.3d at 856 (\"[Ijntimidation in § 2113(a) means the threat of force.”); Brewer, 848 F.3d at 715 (\"The kind of ‘intimidation’ that suffices to put a victim in fear of bodily injury during the course of a bank robbery, and which would in turn allow a defendant to complete such a robbery, is the very sort of threat of immediate, destructive, and violent force required to satisfy the ‘crime of violence’ definition.”); In re Sams, 830 F.3d at 1239 (quoting and adopting reasoning from United States v. McNeal, 818 F.3d 141, that \"[blank robbery under § 2113(a), ‘by intimidation,' requires the threatened use of physical force”); McBride, 826 F.3d at 296 (defining intimidation as \"conduct and words ... calculated to create the impression that any resistance or defiance ... would be met by force”); McNeal, 818 F.3d at 153 (“Bank robbery under. § 2113(a), ‘by intimidation,’ requires the threatened use of physical force.”). .In his opening brief, Wilson argues that § 2113(a) encompasses conduct that does not meet the Supreme Court’s definition of “physical force,” i.e., \"violent force—that is, force capable of causing physical pain or injury to another person[,]” Johnson, 559 U.S. at 140, 130 S.Ct. 1265, because one can be convicted under § 2113(a) for threatening to expose another to a hazardous substance. At oral argument, however, Wilson conceded that that position is untenable in light of our recent opinion in United States v. Chapman, 866 F.3d 129, which was published after Wilson filed his opening brief. Because Chapman forecloses that argument, we do not further address it here. See id. at 133 (“[T]he ‘use’ of ‘physical force,' as used in § 4B1,2(a)(1), involves" }, { "docid": "22941417", "title": "", "text": "to use physical force. McNeal and Stoddard suggest that a person can commit bank robbery by means other than the use or threatened use of violent physical force, such as “by threatening to poison or expose the teller to a hazardous gas.” See Supp. Reply Br. of Appellants 9. We decline to read Woodrwp as conclusively interpreting “intimidation” to encompass threats to cause bodily injury other than by violent physical force. Plainly, the threat that the teller reasonably perceived from Woodrup’s actions¡ was a threat of bodily harm caused by violent physical force — not by something like poisoning. See Torres-Miguel, 701 F.3d at 168-69. The distinction we drew in Torres-Miguel between using force and causing injury was thus irrelevant .to our decision in Woodrwp. Furthermore, the Woodrup panel had no reason to dwell on whether to define “intimidation” in terms of fear of injury or in terms of a\" threatened use of force. That distinction is irrelevant in the vast majority of bank robbery cases, as it will be the rare bank robbér who commits that offense with poison. Indeed, McNeal and Stoddard have not identified a single bank robbery prosecution where the victim feared bodily harm from something other than violent physical force. We therefore decline to read Woodrwp to mean that a bank robbery victim is “intimidat[ed]” within the meaning of § 2113(a) when she reasonably fears bodily harm from something other than violent physical force. Because intimidation entails a threat to use violent physical force, and not merely a threat to cause bodily injury, Torres-Miguel does not alter our conclusion that § 2113(a) bank robbery is a crime of violence under the § 924(c)(3) force clause. B. In sum, we are satisfied that bank robbery under 18 U.S.C. § 2113(a) is a “crime of violence” within the meaning of the force clause of 18 U.S.C. § 924(c)(3), because it “has as an element the use, attempted use, or threatened use of physical force” — specifically, the taking or attempted taking of property “by force and violence, or by intimidation.” Because bank robbery is a lesser-included offense" }, { "docid": "23375132", "title": "", "text": "or serious bodily injury.” Proscribed criminal conduct where the defendant must take the car by intimidation and act with intent to kill or cause serious bodily injury is 'unmistakably a crime of violence also. See United States v. McGuire, 706 F.3d 1333, 1336-38 (11th Cir. 2013) (involving an attempt to disable an aircraft and explaining that an “ ‘active crime’ done ‘intentionally’ against the property of another, with extreme and manifest indifference to the owner of that property and the wellbeing of the passengers” is “unmistakably violent” and “[i]t makes little difference that the physical act, in isolation from the crime, can be done with a minimum of force”); United States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (analyzing “intimidation” in the similarly worded bank robbery statute in 18 U.S.C. § 2113(a) and concluding that “intimidation occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts”); see also In re Sams, 830 F.3d 1234, 1238-39 (11th Cir. 2016) (concluding that a § 2113(a) offense is a crime of violence under § 924(c)(3)(A)). We can conceive of no plausible means by which a defendant could commit the crime of attempted carjacking absent an attempted or threatened use of force against either a person or property. Applying the categorical approach, we consider “the plausible applications” of the carjack-. ing statute, not mere “theoretical” possibilities of how the carjacking may occur under § 2219(1). See McGuire, 706 F.3d at 1337 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (requiring “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside” the standard)). For all these reasons, we hold that attempted carjacking under § 2119(1) categorically qualifies as a crime of violence under § 924(c)(3)(A). Accordingly, the district court did not err in denying Ovalles’s § 2255 motion. AFFIRMED. . The parties dispute whether Ovalles’s appeal of the denial of her § 2255 motion is barred by the limited appeal waiver in her plea agreement." }, { "docid": "7053660", "title": "", "text": "takes a motor vehicle “by force and violence or by intimidation.” 18 U.S.C. § 2119. Jones contends that because carjacking can be committed by intimidation (i.e., fear of bodily harm), and because a threat to cause harm is not the same as a threat to use force, the “use, attempted use, or threatened use of physical force against the person or property of another” is not an element that must be satisfied in order to convict a defendant under the federal carjacking statute. Therefore, Jones argues, carjacking is not a “crime of violence” under § 924(c)(3)(A). Our own precedent, although in the bank robbery context, leads us to conclude that a crime that has as an element a taking “by force and violence or by intimidation” is a “crime of violence” under § 924(c)(3)(A). See United States v. Brewer, 848 F.3d 711, 715-16 (5th Cir. 2017) (holding that the bank robbery statute, 18 U.S.C. § 2113(a) — which similarly requires taking property “by force and violence, or by intimidation” — is a crime of violence under United States Sentencing Guidelines § 4B1.2, which defines “crime of violence” in exactly the same manner as § 924(c)(3)(A)). To hold otherwise would create a circuit split with at least two of our sister circuits. See In re Smith, 829 F.3d 1276, 1280-81 (11th Cir. 2016) (holding that the elements of carjacking under § 2119 “meet the requirements that the force clause in § 924(c)(3)(A) sets out for a qualifying underlying offense”); United States v. Evans, 848 F.3d 242, 247 (4th Cir. 2017) (holding that the elements of carjacking under § 2119 satisfy § 924(c)(3)(A) and noting that the court is “not aware of any ease in which a court' has interpreted the term ‘intimidation’ in the carjacking statute as meaning anything other than a threat of violent force”). In light of our precedent addressing an analogous statute, we see no reason to create such a circuit split by holding differently from how our sister circuits have held. See Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d 399, 407 (5th Cir." } ]

[ { "docid": "21402662", "title": "", "text": "court exceeded its authority to the extent that it ordered Hoover to surrender the bonds to pay his tax liability. This court held in United States v. Minneman, 143 F.3d 274, 284 (7th Cir.1998), that the Victim and Witness Protection Act (the “VWPA”) does not authorize restitution for Title 26 tax offenses. Thus, because the district court did not have authority to order the payment on the tax liability, Hoover is entitled to modification of the restitution order in that respect. As to the order of restitution to Purdue and reimbursement for the costs of court-appointed counsel, Hoover argues that nothing in the VWPA grants the district court the authority to make this order and, absent express authority, the district court is powerless to act. Hoover relies on United States v. Lampien, in which this court held that an order of restitution requiring a defendant to quitclaim her house to her victim exceeded the district court’s authority under the restitution provision of the VWPA. 89 F.3d at 1322. We held that “a district court is limited to effecting the enforcement of a restitution order only as expressly provided by the VWPA.” Id. At the time of that decision, the VWPA did not expressly authorize a court order authorizing a quitclaim deed. Id. However, Lampien was decided in 1996, before Congress passed the Mandatory Victim Witness Act of 1996, 18 U.S.C. § 3663A(c) (1) (A) (ii), which specifically authorized restitution to the victims of criminal conduct. See United States v. Newman, 144 F.3d 531, 537 (7th Cir.1998). The amended statute applies to defendants convicted on or after April 24, 1996, the effective date of the statute. See 18 U.S.C. § 2248; Newman, 144 F.3d at 537. Hoover was convicted in 1998, so the amended statute applies to him. Thus, there is statutory authority for the restitution order to Purdue, the victim of Hoover’s criminal misrepresentation. Similarly, there is statutory authority for the order of restitution for the costs of Hoover’s court-appointed counsel. Reimbursement for the cost of court-appointed counsel is governed by the Criminal Justice Act, 18 U.S.C. § 3006A(f). See" } ]

[ { "docid": "22786301", "title": "", "text": "findings concerning restitution; it did note, however, that Davenport had no reported assets and thus could not pay a fine. At sentencing, the district court ordered Davenport to make restitution in the full amount set forth on the Government’s list, but made no findings regarding restitution. Although the Mandatory Victims Restitution Act of 1996 (MVRA), see 18 U.S.C.A. § 3663A(a)(l), (c)(l)(A)(ii) (West 2000 & Supp.2005), required the district court to order restitution, Davenport maintains that the court exceeded its authority under the MVRA by ordering restitution not statutorily authorized. See United States v. Bok, 156 F.3d 157, 166 (2d Cir.1998) (holding that restitution is proper only when it is statutorily authorized). Because Davenport failed to object to the order at sentencing, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Davenport must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Davenport makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise ... unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (second alteration in original). The Government concedes that the restitution order is plainly erroneous, and we agree. We first conclude that the district court failed to make factual findings sufficient to support the restitution order. The MVRA requires the district court to consider and make findings with respect to “the financial resources and other assets of the defendant,” his “projected earnings and other income,” and his “financial obligations.” 18 U.S.C.A. § 3664(f)(2) (West 2000); see 18 U.S.C.A. § 3663A(d) (West 2000) (“An order of restitution under this section shall be issued and enforced in accordance with section 3664.”). The district court was also required to “make a factual finding keying the statutory factors to the type and manner of" }, { "docid": "22599290", "title": "", "text": "The parties agree that the provisions of the Mandatory Victim Restitution Act (MVRA) of 1996 apply to this case because Dawkins’ offense conduct occurred after the enactment of the MVRA. See Pub.L. No. 104-132, §§ 201-211, 110 Stat. 1214, 1227-41, codified in relevant part at 18 U.S.C.A. §§ 3663A, 3664 (West Supp. 1999). As is relevant here, the MVRA mandates restitution in the full amount of the victim’s loss for “an offense against property under [Title 18], including any offense committed by fraud or deceit.” 18 U.S.C.A. § 3663A(c)(l)(A)(ii); see id. §§ 3663A(a)(l), 3664(f)(1)(A). Although the sentencing court is required to order full restitution “without consideration of the economic circumstances of the defendant,” 18 U.S.C.A. § 3664(f)(1)(A), the statute also mandates that the court specify the manner and schedule by which the defendant is to pay restitution: Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to section 3572, specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of — ■ (A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant; including obligations to dependents. 18 U.S.C.A. § 3664(f)(2). Dawkins argues that the district court did not satisfy its statutory obligation to specify the manner and schedule by which he was to pay restitution because the court ordered the entire restitution amount immediately due. We, however, consider the district court to have effectively discharged its responsibility to set a payment schedule when it instructed that if Dawkins were unable to pay the full restitution amount immediately, he could pay $200 per month beginning 60 days after his release. We therefore reject this assignment of error. Dawkins also asserts that the district court failed to make certain factual findings. The MVRA clearly requires a sentencing court to consider the factors listed in 18 U.S.C.A. § 3664(f)(2) when determining how restitution is to be paid. Additionally," }, { "docid": "22426126", "title": "", "text": "sentence is illegal and must be vacated. The district court ordered Defendant to pay restitution in the amount of $4,790, but waived a fine because of Defendant’s inability to pay. The district court sentenced Defendant under the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. §§ 3663A-3664. Under the MVRA, “restitution is mandatory-regardless of a defendant’s financial situation-when a defendant is convicted of a crime of violence, an offense against property, or an offense related to tampering with consum er products.” United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir.2000); see also 18 U.S.C. § 3664(f)(1)(B) (explaining that court shall order restitution in full without consideration of defendant’s financial circumstances). Therefore, despite Defendant’s arguments to the contrary, in imposing restitution, the district court was precluded from considering Defendant’s indigence or obligations to his children. Defendant also contends, however, that the district court erred in failing to set up a payment plan. Pursuant to the MVRA, Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to section 3572, specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of (A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant; including obligations to dependents. 18 U.S.C. § 3664(f)(l)(B)(2)(A)-(C) (emphasis added). A restitution order may provide that the defendant pay the amount owed in one lump sum, in period payments or, if economic circumstances dictate, in nominal periodic payments until the restitution amount is paid in full. § 3664(f)(3)(A) and (B). Defendant contends that the district court allowed the BOP to set a payment plan without considering his financial obligations to his dependents or the amount of money he actually earns from his prison job, which he claims in his brief is $15 a month. The government counters that pursuant to 18 U.S.C. § 3792(d), the payment of any restitution must be immediate unless the sentencing" }, { "docid": "22327348", "title": "", "text": "erred by failing to explore her financial circumstances on the record before ordering restitution. Although she suggests that she raised this issue in her “[p]leas for consideration of § 3553(a) factors” (Lessner’s Br. 3), the record shows no contemporaneous objection to any failure to make findings (see J.A. at 493-500). We, therefore, review for plain error. United States v. Diaz, 245 F.3d 294, 312 (3d Cir.2001). Under 18 U.S.C. § 3663A, full restitution is mandatory when an identifiable victim has suffered pecuniary loss and the defendant is convicted of “an offense against property” under Title 18, including “an offense committed by fraud or deceit.” 18 U.S.C. § 3663A(a)(l), (c)(1); see also U.S.S.G. § 5El.l(a)(l). Where there has been an award of full restitution, § 3664(f)(2) requires the sentencing court to “specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid,” with reference to “the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled”; “projected earnings and other income of the defendant”; and “any financial obligations of the defendant[,] including obligations to dependents.” 18 U.S.C. § 3664(f)(2). We have held that a district court commits plain error when, having ordered full restitution, it fails to state on the record the manner and schedule of payments after taking into account the defendant’s financial resources. United States v. Coates, 178 F.3d 681, 684 (3d Cir.1999). The district court’s obligation to comply with § 3664(f)(2) may not be delegated to the probation office. Id. at 684-85. Here, unlike Coates, the District Court specified a payment schedule in its restitution order: [Y]ou shall pay a lump sum payment of at least $234,741.30 within six months of the date of the imposition of the sentence, and another lump sum payment of at least [$]234,741.39 within 12 months of the imposition of this sentence. After you’re released from custody, you are to pay the remaining restitution in monthly installments of $500 to the United States Defense Logistics Agency. (J.A. at 494.) The Court did not, however, explicitly state" }, { "docid": "16000343", "title": "", "text": "any victim is outweighed by the burden on the sentencing process.\" 18 U.S.C. § 3663A(c)(3). While the number of victims here gave the government considerable trouble in compiling a full, accurate list of losses, Cheal has not suggested that this provision applies here. . 18 U.S.C. § 3664(d)(5) uses two phrases whose precise meanings have not been explored by this Court. First, § 3664(d)(5) refers to a \"final determination of the victim’s losses\" but not specifically to the initial order for restitution. Other courts to consider this point have found that “final determination” in this context must mean the initial order itself. \"[T]he provision that a victim may 'petition the court for an amended restitution order’ would have no meaning unless the order had been entered.” United States v. Stevens, 211 F.3d 1, 4 (2d Cir.2000). See also United States v. Jolivette, 257 F.3d 581, 584 (6th Cir.2001); United States v. Maung, 267 F.3d 1113, 1121 (11th Cir.2001); United States v. Grimes, 173 F.3d 634, 639-40 (7th Cir.1999). We agree with these courts, although we note that, elsewhere, § 3664 does distinguish between the determination and the order. See §§ 3664(f)(1)(A) (\"In each order of restitution, the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court ....”) and 3664(f)(2) (\"Upon determination of the amount of restitution owed to each victim, the court shall ... specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid ....”). Second, § 3664(d)(5) keys its time periods to \"sentencing” — \"10 days prior to sentencing,” \"90 days after sentencing” — but does not specify whether this term refers to the sentencing hearing or to the district court’s actual entiy of judgment. We conclude that \"sentencing” in this provision refers to the sentencing hearing for four reasons. First, we read this provision in conjunction with § 3664(d)(1), which requires the government to provide the probation officer with a listing of the amounts subject to restitution \"not later than 60 days prior to the date" }, { "docid": "23004473", "title": "", "text": "189 F.3d 838, 846 (9th Cir.1999). The district court’s factual findings in support of a restitution order are reviewed for clear error. Id. Whether a restitution order is authorized by statute is reviewed de novo. United States v. Laney, 189 F.3d 954, 964-65 (9th Cir.1999). Pizzichiello argues that: (1) the amount of the district court’s restitution order was unsubstantiated; (2) the district court failed to make the required findings regarding Pizzichiello’s ability to pay restitution; and (3) Carreiro’s family members were not “victims” of his offense under the Victim Witness Protection Act (VWPA), 18 U.S.C. §§ 3663-3664, and therefore he cannot be ordered to pay them restitution, absent such a requirement in his plea agreement. Pizzichiello’s first argument is without merit. Ms. Swallow testified at the sentencing hearing as to the amounts claimed for restitution. Her testimony gave the district court a reasonable basis upon which to determine the amounts and purposes of the travel expenses, lost wages, and funeral expenses. Pizzichiello does not dispute the amount taken from Carrei-ro’s bank account. The district court’s findings are not clearly erroneous. See United States v. Miguel, 49 F.3d 505, 511 (9th Cir.1995) (reviewing for clear error the district court’s factual findings underlying a restitution order). Pizzichiello next challenges the district court’s failure to consider his ability to pay restitution. However, as the Government points out, 18 U.S.C. § 3663A requires mandatory restitution to victims of a crime of violence. 18 U.S.C. § 3663A(a)(l). Moreover, restitution must be ordered in “full,” without consideration of the defendant’s economic circumstances. 18 U.S.C. § 3664(f)(1)(a). Thus, Pizzichiello’s challenge is without merit. Finally, Pizzichiello argues that restitution is not authorized to Ms. Swallow because she and the other family members are not “victims” under the statute’s definition of the term. However, we need not resolve this issue. Regardless of whether Carreiro’s family members are “victims” under the VWPA, the statute authorizes the district court to order Pizzichiello to pay restitution. Where the offense results in bodily injury and also in the death of a victim, § 3663(b)(3) authorizes the payment of “necessary funeral and related services”" }, { "docid": "6400662", "title": "", "text": "he concedes that this court may review the decision only for plain error. United States v. Allen, 529 F.3d 390, 395 (7th Cir.2008). Under that standard of review, Dokich must show that the district court committed an obvious error that affected substantial rights. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If Dokich makes that showing, we have discretion to remedy the error, though the Supreme Court has recently stressed that our discretion “ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). While there were problems in the calculations of loss, we conclude that Dokich has not identified any error that resulted in the sort of miscarriage of justice that would require reversal. The Mandatory Victims Restitution Act of 1996 (“MVRA”), requires district courts to order restitution in cases of mail fraud, among other federal crimes. 18 U.S.C. § 3663A(c)(1)(A)(ii); United States v. Pawlinski, 374 F.3d 536, 539 (7th Cir.2004). The statute makes restitution available to victims of fraud to the extent that those victims would have been entitled to recover in a civil suit against the criminal. United States v. Martin, 195 F.3d 961, 968 (7th Cir.1999). While restitution awards typically require a direct causal relationship between the defendant’s personal conduct and a victim’s loss, we have recognized that in the case of mail fraud, a crime that “involves as an element a scheme, conspiracy, or pattern of criminal activity,” the MVRA imposes joint liability on all defendants for loss caused by others participating in the scheme. 18 U.S.C. § 3663A(a)(2); Martin, 195 F.3d at 968-69. As a result, Dokich is jointly responsible to pay restitution for all loss actually caused by Efoora’s fraud. According to Dokich, it is impossible to tell from the confused record of the proceedings below whether the district court’s calculations represent actual or intended loss. Part of the problem is that the calculations are relevant to two distinct parts" }, { "docid": "16694819", "title": "", "text": "653, 663 (7th Cir.2008) (stating that the court may limit the defendant’s allocution to the purpose of Rule 32). The court did not err in refusing to allow Panice to speak at that particular point in the hearing. The court subsequently gave both the defense and the government an opportunity to raise “anything of a factual nature” that was related to the Guidelines calculations. Both sides said they had nothing to raise. Had Panice wanted to present further information regarding the acceptance of responsibility issue, he could have. He didn’t. D. Amount of Restitution Panice challenges the amount of restitution ordered by the district court. We review the district court’s authority to order restitution de novo and review the amount of restitution ordered for an abuse of discretion. United States v. Hosking, 567 F.3d 329, 331 (7th Cir.2009). Panice argues that restitution should not have been ordered to the Receiver victims because the Receiver scheme was not part of the Bank Watch scheme for which he was convicted. He claims that the government failed to prove that the Receiver victims were owed $88,895. And he argues that the amount of restitution ordered for Bank Watch is erroneous because it included $607,509.39 of investor funds for which payment was stopped or which were returned to investors as well as $872,555 that were seized under the forfeiture order. The Mandatory Victim Restitution Act provides that when sentencing a defendant convicted of a certain offense, “the court shall order ... that the defendant make restitution to the victim of the offense....” 18 U.S.C. § 3663A(a)(1). In addition, “[t]he court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.” Id. § 3663A(a)(3); see also United States v. Peterson, 268 F.3d 533, 534 (7th Cir.2001). As described above, Panice entered into a plea agreement in which he agreed to make restitution to the Receiver victims as ordered by the district court. Thus, the court had the authority to order Panice to make restitution to the Receiver victims. To the extent that" }, { "docid": "400723", "title": "", "text": "JOSÉ A. CABRANES, Circuit Judge: In this appeal, we consider, as a matter of first impression in this Circuit, the propriety of substituting a defendant’s gain for his victims’ losses in calculating restitution under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. §§ 3663A-3664. Although we join several of our sister circuits in concluding that such a substitution is error, we decline to exercise our discretion under Federal Rule of Criminal Procedure 52(b) to notice the error in this case because the defendant failed to object to the restitution calculation before the District Court and has not satisfied his burden of persuading us that the erroneous restitution order both “affected [his] substantial rights” and “seri ously a£fect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal citation and quotation marks omitted). The judgment of the District Court is therefore affirmed. BACKGROUND From about August 1998 through October 2006, defendant-appellant Salvatore Zangari worked as a securities broker in the securities-lending departments of, first, Morgan Stanley and, subsequently, Bank of America. As a broker, Zangari’s responsibilities included borrowing and loaning securities on behalf of his employers and their clients in the securities-lending market. As described by a leading commentator: Securities lending is an important and significant business that describes the market practice whereby securities are temporarily transferred by one party (the lender) to another (the borrower). The borrower is obliged to return the securities to the lender, either on demand, or at the end of any agreed term. For the period of the loan the lender is secured by acceptable assets delivered by the borrower to the lender as collateral. Mark C. Faulkner, “An Introduction to Securities Lending,” in Securities Lending & Repurchase Agreements 3-4 (Frank J. Fabozzi & Steven V. Mann eds., 2005). Typically, the collateral — which, in the United States, often takes the form of cash — is valued at 102%-105% of the market value of the loaned securities. Peter Economou, “Risk, Return, and Performance Measurement in Securities Lending,” in Securities Lending &" }, { "docid": "23285626", "title": "", "text": "full amount of the restitution award. Thus, it was essentially delegating the preparation of a payment schedule to the Bureau of Prisons and the probation office. Our sister circuits are split on whether such delegation is lawful, although a majority forbid it. Compare United States v. Porter, 41 F.3d 68, 71 (2d Cir.1994) (delegation not permitted); United States v. Coates, 178 F.3d 681, 685 (3d Cir.1999) (same); United States v. Johnson, 48 F.3d 806, 808 (4th Cir.1995) (same); United States v. Albro, 32 F.3d 173, 174 (5th Cir.1994) (same); United States v. Mohammad, 53 F.3d 1426, 1438-39 (7th Cir.1995) (same); United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir.2001) (same); with Weinberger v. United States, 268 F.3d 346, 360 (6th Cir.2001) (permitting delegation); United States v. Signori 844 F.2d 635, 641 (9th Cir.1988) (same); United States v. Fuentes, 107 F.3d 1515, 1528 n. 25 (11th Cir.1997) (same, but criticizing binding circuit precedent). In our view, such delegation is improper and constitutes plain error. The governing statute is 18 U.S.C. § 3664, entitled “Procedure for issuance and enforcement of order of restitution.” This statute, particularly as amended by the Anti-terrorism and Effective Death Penalty Act (AEDPA) in 1996, clearly contemplates judicial control of restitution payment schedules. Section 3664(f)(2) requires the district court to set a payment schedule based on the defendant’s financial resources. It states: Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to section 3572, specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of— (A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant; including obligations to dependents. The court is able to specify such a schedule because of the information provided in accordance with § 3664(d)(3), which states: Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a" }, { "docid": "6400661", "title": "", "text": "withdraw. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Dokich responded, arguing that even though he had received a below-guidelines sentence, the district court should have sentenced him based on $10 million in loss, not $20-50 million. Although we found no merit in that argument, we noted that there was a conflict between the order imposing restitution in the amount of $55,971,122 and the guidelines calculation, which was based on a maximum of $50 million in loss. Concluding that “[a] restitution award can never exceed the actual loss suffered by victims,” we asked Attorney Kister to proceed with the appeal. She did, and we thank her for her assistance to this court and to her client. II Dokich’s only argument at this point is that the restitution component of the judgment cannot stand, because the court never made a finding that Efoora’s victims actually lost $55,971,122. The remedy, in his view, is to vacate that order and remand for reconsideration. Because Dokich failed to object to the district court’s calculations, he concedes that this court may review the decision only for plain error. United States v. Allen, 529 F.3d 390, 395 (7th Cir.2008). Under that standard of review, Dokich must show that the district court committed an obvious error that affected substantial rights. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If Dokich makes that showing, we have discretion to remedy the error, though the Supreme Court has recently stressed that our discretion “ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). While there were problems in the calculations of loss, we conclude that Dokich has not identified any error that resulted in the sort of miscarriage of justice that would require reversal. The Mandatory Victims Restitution Act of 1996 (“MVRA”), requires district courts to order restitution in cases of mail fraud, among other federal crimes. 18 U.S.C. § 3663A(c)(1)(A)(ii);" }, { "docid": "1453545", "title": "", "text": "the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of— (A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant[,] including obligations to dependents. 18 U.S.C. § 3664(f)(2). Som does not challenge the imposition of restitution, but rather contends that the district court failed in its duty to consider the statutory factors, including his earning capacity, before determining a payment schedule for his payment of restitution. Som is incorrect in asserting that 28 C.F.R. §§ 545.10 & 545.11 and 18 U.S.C. § 3663 required the district court to ascertain his earning abilities before imposing a restitution payment schedule, but he is correct that the district court is required to consider certain statutory factors. As noted earlier, 18 U.S.C. § 3664 instructs the district court that it must consider certain factors before imposing a restitution payment schedule. See 18 U.S.C. § 3664(f)(2). Som did not object below to the installment plan for payment of restitution, and therefore we review the restitution order for plain error. See Fed. R.Crim.P. 52(b). The government concedes that Som’s failure to object below “is no bar to appellate review because improperly ordered restitution constitutes an illegal sentence amounting to plain error.” United States v. Thompson, 113 F.3d 13, 15 (2d Cir.1997) (citations omitted) (failed to raise objection below); see United States v. Kinlock, 174 F.3d 297, 299 (2d Cir.1999) (same). Thus, “ ‘[i]f the record fails to demonstrate that the court considered these mandatory factors, [we] will vacate [the] restitution order.’ ” Kinlock, 174 F.3d at 299-300 (quoting United States v. Giwah, 84 F.3d 109, 114 (2d Cir.1996)); see Thompson, 113 F.3d at 14. If the record reflects that the district court considered the statutory factors, we review the restitution order for abuse of discretion. See Kinlock, 174 F.3d at 300; Thompson, 113 F.3d at 15. “The threshold issue ... is whether the record reflects that the district" }, { "docid": "22413772", "title": "", "text": "the plea agreement, the district court accepted the recommendation of the pre-sentence report and ordered restitution in the amount of $168,195.15. This figure was derived from the losses incurred in the state cases that the court deemed to be relevant conduct. At the sentencing hearing defense counsel made no objection to the amount of restitution ordered and, consequently, we review for plain error. In Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the Court confronted the question whether the Victim and Witness Protection Act of 1982 permitted a court to order a defendant who is charged with multiple offenses but who is convicted of only one to make restitution for losses related to the other alleged offenses. The Court held “that the language and structure of the Act make plain Congress’ intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Id. at 413,110 S.Ct. 1979 (footnote omitted). Congress later amended the restitution provisions to enable a court to order restitution in any criminal case to the extent agreed to by the parties in a plea agreement. 18 U.S.C. § 3663(a)(3); see United States v. Guardino, 972 F.2d 682, 686 n. 6 (6th Cir.1992) (discussing amendment). Defendant cites several cases from this circuit in which we vacated a restitution order because it included losses attributable to crimes to which defendant did not plead guilty and which were not specifically mentioned in a plea agreement. See United States v. Tunning, 69 F.3d 107, 114 (6th Cir.1995) (plain error for district court to order restitution for acts of credit card fraud to which defendant did not plead guilty); United States v. Gifford, 90 F.3d 160, 163 (6th Cir.1996) (error to order restitution to banks that were not defrauded under the offense of conviction); United States v. Comer, 93 F.3d 1271, 1279 (6th Cir.), cert. denied, — U.S. — -, 117 S.Ct. 595, 136 L.Ed.2d 523 (1996) (error to impose restitution based upon losses resulting from a charge of which defendant was" }, { "docid": "3343628", "title": "", "text": "An individual may be convicted for money laundering as long as the financial transactions are conducted with proceeds of the illegal transaction and with the intent to promote the underlying offense. Id. We have regularly upheld money laundering prosecutions based on the reinvestment (“plowing back”) of proceeds. See, e.g., United States v. Diaz, 245 F.3d 294, 305 (3d Cir.2001); United States v. Cefaratti, 221 F.3d 502, 511 (3d Cir.2000); Conley, 37 F.3d at 972. And we have never suggested that proceeds must be net. We see no reason to adopt such a requirement now. We therefore hold that “proceeds,” as that term is used in § 1956, means simply gross receipts from illegal activity. An individual may engage in money laundering regardless whether his or her criminal endeavor ultimately turns a profit. Thus we conclude that Grasso was properly convicted and sentenced for money laundering in violation of § 1956. In the context of our review standard, he has failed to establish error of any sort, let alone plain error. B. The District Court’s Award of Restitution We next address Grasso’s contention that the District Court erred by ordering him to pay restitution because it failed to make factual findings in support of the award. We remand for clarification. The context is that at the time of Gras-so’s sentencing, the Court ordered payment of $49,800' in special assessments, $180,000 in fines, $100,000 in counsel fees, and $761,126.39 in restitution to victims of Grasso’s crimes. According to the pre-sentence report, Grasso at one time had\" assets of $1,127,691.79, of which $900,000 was in “frozen funds.” But because most of the frozen funds.were in market-sensitive securities and brokerage funds, they fluctuated in value. Indeed, from the time of the pre-sentence report’s calculation to the date of sentencing the funds’ value had decreased by more than $200,000, resulting in an apparent shortfall for the payment of restitution. The Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. §§ 3663A-3664, enacted in 1996, requires a sentencing court to order full restitution to identified victims of certain crimes and to specify the manner and order in which" }, { "docid": "10680212", "title": "", "text": "Taylor, 582 F.3d at 566 (quoting United States v. Emerson, 128 F.3d 557, 567 (7th Cir.1997), alterations omitted). Thus, ordering forfeiture in addition to restitution is not an unfair double recovery. In this case, both forfeiture and restitution were mandatory. See 18 U.S.C. §§ 982(a)(2), 3663A(a)(l) (“[T]he court shall order, in addition to ... any other penalty authorized by law, that the defendant make restitution to the victim of the offense .... ”); see also Taylor, 582 F.3d at 566 (holding that by ordering both restitution and forfeiture, “[t]he district court properly adhered to the mandatory language found within the statutory schemes”). Nothing in the statutory scheme permitted the district court to reduce the mandated criminal forfeiture order because the defendant also had to satisfy his obligation to pay restitution. See United States v. Hoffman-Vaile, 568 F.3d 1335, 1344-45 (11th Cir.2009) (rejecting the argument that forfeiture under § 982(a)(7) should be reduced based on restitution); cf. United States v. Alalade, 204 F.3d 536, 540 (4th Cir.2000) (“[T]he plain language of the [Mandatory Victims Restitution Act of 1996] did not grant the district court discretion to reduce the amount of restitution required to be ordered by an amount equal to the value of the property seized from [the defendant] and retained by the government in administrative forfeiture.”). McGinty contends that even if forfeiture in general is mandatory, the district court did not err in refusing to enter a forfeiture money judgment. In particular, McGinty argues that Federal Rule of Criminal Procedure 32.2(b) prohibits the district court from entering both a money judgment and an order forfeiting specific property. Under Rule 32.2(b), “[i]f the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment or directing the forfeiture of specific property without regard to any third party’s interest in all or part of it.” Fed.R.Crim.P. 32.2(b)(2). According to McGinty, the word “or” precludes the district court from entering both a money judgment and forfeiture of specific property. We are not persuaded by this argument. In context, the" }, { "docid": "20407689", "title": "", "text": "See Tannehill, 49 F.3d at 1055-56. In light of our conclusion above that there was sufficient evidence that Rizk knew the conspiracy’s objective, her argument that she did not know the intended purpose of her appraisals is unavailing. A rational jury could have determined beyond a reasonable doubt that Rizk knew the intended purpose was to obtain loans in furtherance of the conspiracy, and that she prepared the inflated appraisals for the purpose of influencing the lenders’ actions. See 18 U.S.C. § 1014. IV Rizk’s final challenge is to the district court’s restitution order that she pay $46,515,846 to the victim lenders. She argues that the order conflicts with a prior civil settlement before the same district judge. The settlement agreement provided that, in exchange for Rizk’s payment of $967,083.68, the policy limit of her errors and omissions insurance policy, the victim lenders would release all claims against Rizk for losses they sustained because of her appraisals. Because Rizk did not raise this issue before the district court, we review again for plain error. United States v. Van Alstyne, 584 F.3d 803, 819 (9th Cir.2009). The Mandatory Victim Restitution Act (“MVRA”) requires a district court, in sentencing a defendant convicted of certain offenses, including an offense against property committed by fraud, see 18 U.S.C. § 3663A(c) (1) (A) (ii), to order restitution to each victim “in the full amount of each victim’s losses.” Id. § 3664(f)(1)(A); see id. § 3663A(a)(l); United States v. Edwards, 595 F.3d 1004, 1012-13 (9th Cir.2010). The MVRA applies even where the victims have received compensation from another source: “In no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution.” 18 U.S.C. § 3664(f)(1)(B). If a victim receives compensation for a loss from insurance or any other source, the MVRA requires the district court to order restitution to “the person who provided or is obligated to provide compensation,” but only after all victims have been fully compensated for their losses. Id." }, { "docid": "20816040", "title": "", "text": "resentencing under the proper Guidelines. IV. The Mandatory Victims Restitution Act directs sentencing courts to order individuals convicted of bank fraud to “make restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(l). Finding the approximately $219,000 loss alleged in the indictment — including the losses from the bank fraud count on which Clark was acquitted — attributable to Clark’s scheme, the district court ordered him to make restitution for the entire amount. Clark argues that the court’s inclusion of losses flowing from the acquitted count violated Supreme Court and D.C. Circuit decisions that limit restitution orders to “the offense of conviction.” See Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (emphasis added); United States v. Dorcely, 454 F.3d 366, 377 (D.C.Cir.2006). In the district court, however, Clark made a very different argument — that the restitution order lacked sufficient evidentiary support. To be sure, Clark did refer to his acquittal, but he never advanced the position he urges here — that nothing in the MVRA authorizes restitution for acquitted conduct. Our review is thus again for plain error. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Contrary to Clark’s contention, neither of the decisions he cites clearly forecloses including acquitted conduct in restitution orders. Although the two decisions do limit restitution to the “offense of conviction,” neither resolves the question we face here: whether restitution is appropriate for acquitted conduct that falls within the scope of other scheme-based offenses of conviction — here, the other three bank fraud counts. The district court thus committed no plain error. See United States v. Lawreys, 653 F.3d 27, 32-33 (D.C.Cir.2011) (“Rarely do we find an error to be plain where this court has not ruled on the question.” (internal quotation marks omitted)). V. For the foregoing reasons, we affirm Clark’s conviction and restitution obligation, vacate his sentence, and remand for resentencing. So ordered. RANDOLPH, Senior Circuit Judge, concurring: I join the opinion of the court but write separately to say a few words about § 3Bl.l(c)" }, { "docid": "19609835", "title": "", "text": "Johnson , 440 F.3d at 849 ). \" 'Because federal courts have no inherent power to award restitution,' restitution orders are proper 'only when and to the extent authorized by statute.' \" Id. (quoting United States v. Evers , 669 F.3d 645, 655-656 (6th Cir. 2012) ). Because Sexton did not object to the amount of restitution, this Court reviews for plain error. United States v. Koeberlein , 161 F.3d 946, 951 (6th Cir. 1998). Analysis Under the Mandatory Victim Restitution Act (\"MVRA\"), \"a district court must order restitution from a defendant convicted 'of an offense against property ... including any offense committed by fraud or deceit' if an identifiable victim has suffered a loss.\" United States v. Gale , 468 F.3d 929, 941 (6th Cir. 2006) (citing 18 U.S.C. § 3663A(a)(1), (c)(1) ). The government \"must prove the bank's loss by a preponderance of the evidence.\" United States v. Kratt , 579 F.3d 558, 565 (6th Cir. 2009) (citing 18 U.S.C. § 3664(e) ). \"In calculating restitution, 'the loss caused by the conduct underlying the offense of conviction establishes the outer limits of a restitution order.' \" Id. (quoting Hughey v. United States , 495 U.S. 411, 420 (1990) ). The district court may hold co-defendants jointly and severally liable for the restitution amount. United States v. Bogart , 576 F.3d 565, 575-76 (6th Cir. 2009) (citing 18 U.S.C. § 3664(h) ). In the plea agreement, the parties agreed to recommend a restitution amount of $2,534,912. The parties reserved the right to \"object or argue in favor of other calculations.\" (R. 154, Plea Agreement, PageID # 441.) The PSR, which was prepared after the plea agreement was entered into, calculated a restitution amount of $2,637,058.32. The district court ordered restitution in the amount of $2,637,058.32. The court explained that the number contained in the plea agreement was lower than the number contained in the PSR because one of the financial institutions was not able to sell some of the collateral for as much as it had originally agreed upon. The court noted that it was a joint and several" }, { "docid": "20407690", "title": "", "text": "States v. Van Alstyne, 584 F.3d 803, 819 (9th Cir.2009). The Mandatory Victim Restitution Act (“MVRA”) requires a district court, in sentencing a defendant convicted of certain offenses, including an offense against property committed by fraud, see 18 U.S.C. § 3663A(c) (1) (A) (ii), to order restitution to each victim “in the full amount of each victim’s losses.” Id. § 3664(f)(1)(A); see id. § 3663A(a)(l); United States v. Edwards, 595 F.3d 1004, 1012-13 (9th Cir.2010). The MVRA applies even where the victims have received compensation from another source: “In no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution.” 18 U.S.C. § 3664(f)(1)(B). If a victim receives compensation for a loss from insurance or any other source, the MVRA requires the district court to order restitution to “the person who provided or is obligated to provide compensation,” but only after all victims have been fully compensated for their losses. Id. § 3664(j)(l). Finally, the amount of restitution is offset by “any amount later recovered as compensatory damages for the same loss by the victim” in civil proceedings. Id. § 3664(j)(2); Edwards, 595 F.3d at 1013. In United States v. Edwards, we rejected a defendant’s contention that a prior bankruptcy settlement precluded a later criminal restitution order. 595 F.3d at 1013. Our holding in Edwards applies to prior civil settlements, because there we affirmed the continued viability of United States v. Cloud, 872 F.2d 846 (9th Cir.1989). In Cloud, a defendant convicted of bank fraud had entered into a prior settlement agreement with the defrauded bank, and the bank had entered into a settlement agreement with its insurer. 872 F.2d at 853. In the agreements, the victims had agreed to release all claims against the defendant. Id. We concluded that neither the bank nor the insurer could waive, through settlement, its “right” to restitution under the Victim and Witness Protection Act (“VWPA”), the predecessor statute to the MVRA, because a purpose of criminal restitution is to" }, { "docid": "22327347", "title": "", "text": "id. at 333 (describing harm to Lessner’s staff).) The Court also noted Lessner’s apparent lack of contrition at sentencing. (Id. at 495-96). Lessner’s ongoing denial of conduct for which the District Court previously found a factual basis, and her invocation of the September 11th attacks and her husband’s December 2001 heart attack as justification for fraudulent acts that began in August 2001, are “inconsistent with acceptance of responsibility.” See U.S.S.G. § 3E1.1 cmt. n. 1(a). According “great deference” to the Court’s finding that this is not an “extraordinary case,” id. cmt. nn. 4, 5, it is absolutely clear that no error was made. D. Whether the Restitution Order Was Improper for Lack of Findings The District Court ordered restitution of $938,965.59, with $234,741.39 due within six months of the imposition of sentence, another $234,741.39 due within twelve months of the imposition of sentence, and the balance due in $500 monthly installments upon Lessner’s release from custody. Noting the PSR’s observation that she lacked the ability to also pay a fine, Lessner argues that the Court erred by failing to explore her financial circumstances on the record before ordering restitution. Although she suggests that she raised this issue in her “[p]leas for consideration of § 3553(a) factors” (Lessner’s Br. 3), the record shows no contemporaneous objection to any failure to make findings (see J.A. at 493-500). We, therefore, review for plain error. United States v. Diaz, 245 F.3d 294, 312 (3d Cir.2001). Under 18 U.S.C. § 3663A, full restitution is mandatory when an identifiable victim has suffered pecuniary loss and the defendant is convicted of “an offense against property” under Title 18, including “an offense committed by fraud or deceit.” 18 U.S.C. § 3663A(a)(l), (c)(1); see also U.S.S.G. § 5El.l(a)(l). Where there has been an award of full restitution, § 3664(f)(2) requires the sentencing court to “specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid,” with reference to “the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled”; “projected earnings and" } ]

[ { "docid": "11647317", "title": "", "text": "130 F.Supp. 412 [motion for new trial granted as to two defendants (Trachtenberg and Charney) who were unable during the trial to meet the false testimony; motion for new trial denied as to those defendants who failed to show that thev could not meet the false trial testimony during the trial]. . Government’s motion to remand granted by the Supreme Court where evidence of a perjurious record attributable to the fraud of the defendants came into the Government’s possession after the Government had petitioned for certio-rari. . After certiorari had been granted (in a case where defendants’ conviction had been affirmed), the Government moved in the Supreme Court to have the case remanded to the district court on the ground that a key Government witness had given testimony in other proceedings before other tribunals and that the Government “now has serious reason to doubt the truthfulness” of the witness in those proceedings (352 U.S. at 4, 77 S.Ct. at 3). The defendants moved for a new trial. The Supreme Court found that— regardless of whether the witness’ untruthfulness constituted perjury or was caused by a psychiatric condition — the witness’ “credibility has been wholly discredited by the disclosures of the Solicitor General” (352 U.S. at 9, 77 S.Ct. at 5); and the Supreme Court ordered a new trial. . United States v. Johnson (1946) 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562; United States v. Costello (2d Cir. 1958) 255 F.2d 876, 879, cert. denied 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551; rehearing denied 358 U.S. 858, 79 S.Ct. 16, 3 L.Ed.2d 93; United States v. Hiss (S.D.N.Y.1952) 107 F.Supp. 128, 136-137, aff’d on opinion below, 201 F.2d 372 (1953), cert. denied 345 U.S. 942, 73 S. Ct. 830, 97 L.Ed. 1368 (1953); Weiss v. United States (5th Cir. 1941) 122 F.2d 675, 691; Cf. United States v. Shotwell Manufacturing Co. (1957) 355 U.S. 233, 242, 78 S.Ct. 245, 251, 2 L.Ed.2d 234 [“A convincing showing is of course necessary to bring these principles into play.”] . United States v. On Lee (2d Cir. 1953) 201" } ]

[ { "docid": "22173100", "title": "", "text": "to concurrent five year sentences and was fined $10,000 on each of these three counts. On appeal, this court affirmed the convictions for 1948 and 1949 but reversed as to 1947. 2 Cir., 221 F.2d 668. The Supreme Court, having granted certiorari limited to the question of the sufficiency of the evidence presented to the grand jury, affirmed. 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397. In May, 1956, pursuant to 28 U.S.C.A. § 2255, the appellant filed a motion for correction of sentence, and the District Court denied the motion. We affirmed. 2 Cir., 239 F.2d 177. The Supreme Court granted certiorari and affirmed. 353 U.S. 978, 77 S.Ct. 1281, 1 L.Ed.2d 1140. In November, 1956, the motion now before us on appeal was filed below. The District Court, after allowing the amendments referred to above and after an extended hearing of appellant’s case, upon a comprehensive and carefully reasoned opinion denied the motion. 157 F.Supp. 461. Wiretap Evidence The district judge concluded that there was no proof that evidence which the Government had introduced at the trial was the fruit of wiretaps and that at any rate there was enough untainted evidence to support the convictions on the counts for 1948 and 1949. We need consider only his further holding that the appellant has not shown that the use of wiretap evidence was not known or could not, with due diligence, have been discovered prior to the trial. The federal courts in varying circumstances have used either of two recognized tests or standards to determine when new trials should be permitted. One of these tests was originally laid down in the case of Berry v. State, 10 Ga. 511, 527, where the court listed the following six requirements: “1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would probably produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only — viz.:" }, { "docid": "23136204", "title": "", "text": "rather small pieces of evidence may bear, in a not altogether insignificant way, on the crucial issue of intent. The colorless stipulated statement of what Gessele would have said if called as a witness was not a satisfactory substitute for the contemporaneous •correspondence, on the availability of which petitioner’s counsel asserts he relied in entering into the stipulation; and neither would secondary evidence •of the contents of the correspondence have been. Giving due weight to all this, we still would be a long way from concluding that the missing correspondence “is so material that it would probably produce a different verdict, if the new trial were granted,” Berry v. State, 10 Ga. 511, 527 (1851)—the test that would apply if petitioner had excusably mislaid the correspondence and had moved for a new trial on finding it. And, on the showing made thus far, it would require minds more indulgent than ours to believe that the missing correspondence would have met the less rigorous standard of Larrison v. United States, 24 F.2d 82 (7 Cir. 1928), that the newly discovered evidence might have produced a different verdict — a test that has been stated to be limited to cases of “recantation or where it has been proved that false testimony was given at the trial,” United States v. Hiss, 107 F.Supp. 128, 136 (S.D.N.Y. 1952), aff’d, 201 F.2d 372 (2 Cir.), cert. denied, 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368 (1953), citing United States v. Johnson, 142 F.2d 588, 591 (7 Cir. 1944); see United States v. Costello, 255 F.2d 876, 879 (2 Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958) — assuming as we do that “might” means something more than an outside chance although much less than the “would probably” of the Berry rule. Although the problem before us is different in two respects from those to which the Berry and Larrison standards were addressed, we have nevertheless thought the reference useful since one of the respects makes petitioner’s position more favorable than that of an applicant for a new trial on" }, { "docid": "23022259", "title": "", "text": "contend that all the payroll cheeks were in face amounts of less than $1,000 and thus were unidentified items attributed by the government to income sources. However, the Slutskys argue, cash transferred to the Nevele Hotel from another partnership to meet payroll needs cannot be considered income to the Hotel, and therefore deposits of the cashed payroll checks actually represent non-income items. And since cashed payroll checks account for more than $1,500,000 in deposits over the relevant three-year period, a sum which exceeds the $1,200,000 which the appellants were accused of not reporting, there is a potential explanation for the discrepancy between the size of the deposits and reported income. As a consequence, they argue that the district court erred in denying their motion for a new trial. Motions for new trials based on newly discovered evidence “are not held in great favor,” United States v. Catalano, 491 F.2d 268, 274 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974). To succeed on such a motion a defendant must show, inter alia, (1) that the evidence was discovered after trial, (2) that it could not, with the exercise of due diligence, have been discovered sooner, (3) that it is so material that it would probably produce a different verdict. United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958), citing Berry v. State, 10 Ga. 511, 527 (1851). We believe that the district court was amply justified in concluding that the Slutskys had not fulfilled the first two requirements, and we need not decide whether, if true, the evidence would have mandated an acquittal. There is no question that the appellants must have known of payroll check-cashing practices at the Hotel. As principals of both the transferor and transferee enterprises, they were actively involved in management and most assuredly would have been aware of large transfers of funds between the concerns. Indeed, the checks effecting the transfers were assertedly made payable to one or the other of the appellants. Thus, assuming that cash" }, { "docid": "22283016", "title": "", "text": "at trial to show that the phone number 728-3814, to which Galvez was referred, was listed to appellant. See United States ex rel. Curtis v. Warden, 329 F.Supp. 333, 336 (E.D.N.Y. 1971). Under these circumstances we reject appellant’s argument that the grand jury indicted the wrong man. The grand jury indicted the Tommy living on the second floor of 3407 Broadway, with a phone number 728-3814. This was the appellant, not his brother. Although the grand jury’s intent would have been clearer if Galvez had before the grand jury identified appellant by photograph, the evidence is nevertheless sufficient to indicate an intent to indict appellant, not his brother. Carcone next claims that the district court erred in denying his motion for a new trial under Rule 33, F.R.Cr.P., based on his post-trial discovery of a letter by Schwartzbach, submitted two years before trial in connection with sentencing of appellant on a different violation, attesting to Schwartzbach’s acquaintanceship for three years with a “Gaetano” Carcone, which is appellant’s correct name, to whom Schwartzbach had rented automobiles. At trial Schwartzbach had testified that he did not recall any occasion when Carcone had used the name “Gaetano” in their dealings. Appellant contends that the letter would have enabled him to impeach Schwartzbach’s credibility as a Government witness against him. In our view the trial judge’s ruling was correct and in accordance with our repeated instructions that such a motion “should be granted only with great caution” and only upon a showing that the evidence could not with due diligence have been discovered before or during trial, that the evidence is material, not cumulative, and that admission of the evidence would probably lead to an acquittal. United States v. Stofsky, 537 F.2d 237, 243 (2d Cir. 1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); United States v. Slutsky, 514 F.2d 1222, 1225 (2d Cir. 1975); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). Here there was no showing that the new evidence could not have" }, { "docid": "3559834", "title": "", "text": "sufficiency of the evidence, principally because, on the five counts of conviction, a jury could have disbelieved Dr. Siddiqi’s self-serving “coverage” testimony and then rationally concluded that, without such coverage, the doctor, who was admittedly out of the country, did not provide a service reimbursable by Medicare. Indeed, that is the most likely explanation for the jury’s verdict—it convicted Siddiqi of only five of 77 counts, and the five counts of conviction were the only counts in the indictment which corresponded to the two-week period Siddiqi was admittedly out of the country. As the government candidly acknowledges in its brief on appeal, “It was the defense of * * * ‘coverage by another physician’ that obviously was rejected by the jury.” Rule 33 of the Federal Rules of Criminal Procedure states that the district court may grant a new trial “if required in the interest of justice”, and it specifically contemplates that such motions may be made based on newly-discovered evidence. The district court’s decision to deny a new trial on the ground of newly-discovered evidence is reviewed for abuse of discretion. See, e.g., United States v. Diaz, 922 F.2d 998, 1006-07 (2d Cir.1990) (citing cases), cert. denied, — U.S. -, 111 S.Ct. 2035, 114 L.Ed.2d 119 (1991). Relief is justified under rule 33 if the defendant makes a showing that the evidence is in fact “new”, i.e., it could not have been discovered, exercising due diligence, before or during trial, and that the evidence is so material and non-cumulative that its admission “would probably lead to an acquittal.” United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980) (citing cases); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); Berry v. State, 10 Ga. 511, 527 (1851) (new evidence will not entitle the defendant to a new trial unless “it would probably produce a different verdict.”). One reason that there was sparse evidence to support Siddiqi’s convictions was that the government’s presentation of this case was fluid, even amoebic. Its initial theory of prosecution was that" }, { "docid": "21897158", "title": "", "text": "Berry v. State of Georgia, 10 Ga. 511, which he quoted as follows: ‘Upon the following points there seems to be a pretty general concurrence of authority, viz: that it is incumbent on a party who asks for a new trial, on the ground of newly discovered evidence, to satisfy the Court, 1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would probably produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only — viz.:—speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness.’ “This is the general rule applicable where there has been no showing of recantation or false swearing and the effect of the newly discovered evidence is considered in its relation to a possible new trial. This rule has been followed in the Federal cases and is of almost universal application among the States.” See also United States v. Marachowsky, 213 F.2d 235, 238 (7th Cir. 1954), cert. denied, 348 U.S. 826, 75 S.Ct. 43, 99 L.Ed. 651. We are here particularly concerned with that part of the Johnson (or Berry) test that the newly discovered evidence is so material that it probably would produce a different result if a new trial were granted. Curran urges that since the Government opposed the motion for separate trials, thereby making it impossible for Curran either to call on Kahn as a witness or to comment on his refusal to testify, there is a degree of governmental culpability which would dilute the stringent probability standard. It is suggested that even if this did not go to the extent involved in Larrison v. United States, 24 F.2d 82 (7th Cir." }, { "docid": "12978409", "title": "", "text": "this objective had been held to be insufficient for a new trial under the test derived from United States v. Costello, 255 F.2d 876 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed. 2d 1551 (1958) and Berry v. State, 10 Ga. 511, 527 (1851); and (2) under the test of Larrison v. United States, 24 F.2d 82 (7th Cir. 1928), it was not satisfied that the testimony of the witness “was false in its material aspects” but was convinced that other, evidence (namely, the testimony of six or seven other witnesses) “overwhelmingly!’ established defendants’ guilt. The grant or denial of a motion for a new trial is largely within the discretion of the trial court. Furthermore, such motions are “not favored and should be granted only with great caution.” United States v. Costello, supra, 255 F.2d at 879. In the present case, the trial court correctly formulated the relevant tests for granting a motion for a new trial and properly applied these tests. There is no contention here that the prosecution wilfully or in bad faith suppressed the evidence relied upon. This new evidence consisted of a mere summary by an agent without medical training of the diagnosis of a Naval doctor. In addition, the psychologist later qualified his original diagnosis in an affidavit, presented in response to the motion for a new trial, in which he stated: (1) that he had never interviewed or had even seen Mangual; (2) that he had no information concerning the nine years of Mangual’s life since his discharge from the Corps; and (3) that in his original diagnosis he had stated that he considered Mangual emotionally rather than mentally unstable. Order affirmed.'" }, { "docid": "12978408", "title": "", "text": "PER CURIAM. This is an appeal from the denial of a motion: (1) for a new trial on the basis of newly discovered evidence; (2) to vacate the judgment of conviction; and (3) for the production of medical records of Hector Mangual, a government witness. The Lombardozzis were tried and convicted in November, 1963, for assault on an FBI agent. This conviction was affirmed by this Court, 335 F.2d 414 (2d Cir.), and a petition for certiorari was denied 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964). In a subsequent proceeding, the defendants obtained an FBI agent’s report concerning a Navy psychologist’s diagnosis of Mangual’s mental and emotional state. They claim that this report, together with Mangual’s medical record during his Marine Corps service from 1951 to 1955, would vitiate his testimony and probably would have produced a different verdict if available at the assault trial. The District Court, in denying the requested relief, concluded that; (1) the defendants sought a new trial merely to impeach the credibility of a witness but that this objective had been held to be insufficient for a new trial under the test derived from United States v. Costello, 255 F.2d 876 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed. 2d 1551 (1958) and Berry v. State, 10 Ga. 511, 527 (1851); and (2) under the test of Larrison v. United States, 24 F.2d 82 (7th Cir. 1928), it was not satisfied that the testimony of the witness “was false in its material aspects” but was convinced that other, evidence (namely, the testimony of six or seven other witnesses) “overwhelmingly!’ established defendants’ guilt. The grant or denial of a motion for a new trial is largely within the discretion of the trial court. Furthermore, such motions are “not favored and should be granted only with great caution.” United States v. Costello, supra, 255 F.2d at 879. In the present case, the trial court correctly formulated the relevant tests for granting a motion for a new trial and properly applied these tests. There is no contention here that the prosecution" }, { "docid": "18913258", "title": "", "text": "and moved to dismiss Count Two (the Continuing Criminal Enterprise count), or in the alternative for a new trial and for some form of discovery of Mojica’s statements. The Court directed counsel to file such motions formally, which was done, and sentenced Cruz on the charges against him. That motion is now before the Court. -DISCUSSION- Defendant’s motion, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, for a new trial is based on the grounds of newly discovered evidence. The alleged newly discovered evidence, presumably, is Mojica’s potential testimony on Cruz’s behalf, and, derivatively, its weight in demonstrating the perjurious nature of Tuli’s testimony. It has long been the law in this Circuit that “motions for new trials are not favored and should be granted only with great caution.” United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). The long-standing test applied to such motions based on newly discovered evidence is clear. . A new trial based on newly discovered evidence will be granted only if the following criteria are met: (1) the evidence must, indeed, be newly discovered, i.e., discovered after trial; (2) the evidence must be such that it could not, with due diligence, have been discovered prior to or during trial; (3) the evidence must be material to the issue of guilt, and not merely for the purpose of impeaching other testimony; (4) the evidence must not be cumulative; and (5) the evidence must be such that it would probably lead to acquittal. See, e.g., United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980); United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); United States v. Slutsky, 514 F.2d 1222, 1225 (2d Cir.1975); Costello, 255 F.2d, at 879; see also, Berry v. State, 10 Ga. 511, 527 (1851). That test is applicable unless the failure of the defendant to discover the evidence sooner was due in some part to prosecutorial misconduct. See United States v. Agurs, 427" }, { "docid": "534646", "title": "", "text": "ROSS, Chief Judge. I. Preliminary Matters. On October 28, 1960, a jury found defendant to be guilty on six counts of an eight-count indictment charging willful evasion of federal income taxes. On November 1, 1960, defendant, appearing pro se, filed a motion for new trial. On November 3,1960, defendant, through his newly retained counsel, filed another motion for new trial, which motion, we take it, supersedes that filed on November 1, 1960. On November 10, 1960, at the request of defendant’s counsel, this Court granted a continuance on the motion for new trial, on the ground that a proper resolution of the motion could not be made until such time as a transcript of the trial record could be made available both to counsel and to this Court. On February 21, 1961 and on March 1, 1961, the parties filed their respective memo-randa of points and authorities in support of or in opposition to the instant motion. Oral argument was had on March 3, 1961, followed by the government’s filing, per stipulation approved by this Court, additional documentation, namely, reports of psychiatrists, to which we refer infra. To begin with, we note that a motion for new trial is addressed to the discretion of this Court. Naval v. United States, 9 Cir., 1960, 278 F.2d 611, 615; Straight v. United States, 9 Cir., 1959, 263 F.2d 811, 813; Adams v. United States, 9 Cir., 1951, 191 F.2d 206, 207; Eagleston v. United States, 9 Cir., 1949, 172 F.2d 194, 200, certiorari denied 1949, 336 U.S. 952, 69 S.Ct. 882, 93 L.Ed. 1107. Furthermore, it is well settled that motions for new trials are not favored. United States v. Costello, 2 Cir., 1958, 255 F.2d 876, 879, certiorari denied, 1958, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551, and that they should be granted only with great caution. United States v. Costello, supra, 255 F.2d at page 879; United States v. Pruitt, D.C.S.D.Tex. 1954, 121 F.Supp. 15, 17, affirmed 5 Cir., 1954, 217 F.2d 648, certiorari denied 1955, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243. Finally, we would" }, { "docid": "11799074", "title": "", "text": "Oir.), cert. denied, 345 U.S. 936, 73 S.Ct. 798, 97 L. Ed. 1364 (1953). . United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562 (1946); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); Weiss v. United States, 122 F.2d 675, 691 (5th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941). . In this instance the Court is applying the . so-called Berry test, Berry v. State, 10 Ga. 511, 527 (1851), and not the Larrison test, Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), applicable in instances of recantation of testimony. Cf. United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). See also, United States v. Johnson, 327 U.S. 106, 110 n. 4, 111 n. 5, 66 S.Ct. 464, 90 L.Ed. 562 (1946). . United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); United States v. On Lee, 201 F.2d 722, 723 n. 3 (2d Cir.), cert. denied, 345 U.S. 936, 66 S.Ct. 464, 90 L.Ed. 562 (1953); United States v. Hiss, 107 F. Supp. 128, 136 (S.D.N.Y.1952), aff’d on opinion below, 201 F.2d 372 (2d Cir.), cert. denied, 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368 (1953). See Mills v. United States, 281 F.2d 736, 738 (4th Cir. 1960). . The defense was conducted with such vigor and ability that the Trial Judge not only commended counsel, but suggested that the younger members of the Bar might well profit by the example of advocacy. Appendix, Defendant’s Brief on Appeal 272a, United States v. Fassoulis, 293 F.2d 243 (2d Cir. 1961). . United States v. Sumpter, 111 F.Supp. 507, 511 (S.D.N.Y.1953), aff’d, 228 F. 2d 290 (1955). See United States v. Bertone, 249 F.2d 156, 160 (3d Cir. 1957). Cf. United States ex rel. Reid v. Richmond, 295 F.2d 83, 89-90 (2d Cir. 1961); United States" }, { "docid": "3559835", "title": "", "text": "evidence is reviewed for abuse of discretion. See, e.g., United States v. Diaz, 922 F.2d 998, 1006-07 (2d Cir.1990) (citing cases), cert. denied, — U.S. -, 111 S.Ct. 2035, 114 L.Ed.2d 119 (1991). Relief is justified under rule 33 if the defendant makes a showing that the evidence is in fact “new”, i.e., it could not have been discovered, exercising due diligence, before or during trial, and that the evidence is so material and non-cumulative that its admission “would probably lead to an acquittal.” United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980) (citing cases); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); Berry v. State, 10 Ga. 511, 527 (1851) (new evidence will not entitle the defendant to a new trial unless “it would probably produce a different verdict.”). One reason that there was sparse evidence to support Siddiqi’s convictions was that the government’s presentation of this case was fluid, even amoebic. Its initial theory of prosecution was that Dr. Siddiqi did not actually administer the chemotherapy; but when Siddiqi pointed out that he did not have to administer the chemotherapy, only supervise it, the government had to face up to the irrefutable facts that the 96500 code stands for administration or supervision and that the indictment alleged that the chemotherapy was administered without Siddiqi’s “participation or supervision”. Of course, the only government witness asked point-blank what “supervision” meant replied that he had “no opinion”. In spite of the government’s inability to provide any definition of “supervision”, it still had a chance to salvage five of the counts—the ones corresponding to Dr. Sid-diqi’s trip abroad—by arguing to the jury that, whatever the elusive term “supervision” means, a doctor who is in another country wasn’t providing it. When the government was met with Dr. Siddiqi’s un-contradicted testimony that Dr. Mufti was covering for him while he traveled, the government seemingly conceded that “coverage exists in this case”—a concession which may well have lulled or misled Siddi-qi as to the need for corroboration of his coverage" }, { "docid": "22173101", "title": "", "text": "had introduced at the trial was the fruit of wiretaps and that at any rate there was enough untainted evidence to support the convictions on the counts for 1948 and 1949. We need consider only his further holding that the appellant has not shown that the use of wiretap evidence was not known or could not, with due diligence, have been discovered prior to the trial. The federal courts in varying circumstances have used either of two recognized tests or standards to determine when new trials should be permitted. One of these tests was originally laid down in the case of Berry v. State, 10 Ga. 511, 527, where the court listed the following six requirements: “1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would probably produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only — viz.: speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness.” The other test was developed in the case of Larrison v. United States, 7 Cir., 24 F.2d 82, wherein the following three requirements were specified: “(a) The court is reasonably well satisfied that the testimony given by a material witness is false. “(b) That without it the jury might have reached a different conclusion. “(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.” 24 F.2d at pages 87-88. The Government contends that the appellant’s motion should be determined by application of the Berry rule, while the appellant urges that the Larrison rule is the" }, { "docid": "22286715", "title": "", "text": "for tactical purposes or, alternatively, the failure to inquire into the existence of an alibi defense was a mistake that could not be “raised to the dignity of a reason for a new trial.” He also held* that the affidavits were not “sufficiently persuasive or solid” to have “probably” led to Silverman’s acquittal if presented at the trial. In United States v. Polisi, 416 F.2d 573, 576-577 (2d Cir. 1969) we stated: “The generally held essentials for a new trial based on newly discovered evidence are the following: (1) the evidence must have been discovered since the trial; (2) it must be material to the factual issues at the trial, and not merely cumulative nor impeaching the character or credit of a witness; (3) it must be of such a nature that it would probably produce a different verdict in the event of a retrial. United States v. Costello, 255 F.2d 876 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958).” Compare Berry v. State, 10 Ga. 511, 527 (1851). The test of the materiality of the evidence stated above, “it would probably produce a different result,” may be likened in certain cases to the test stated in Larrison v. United States, 24 F. 2d 82, 87-88 (7th Cir. 1928), “the jury might have reached a different conclusion.” The application of this latter test has been said to be limited to cases of “recantation or where it has been proved that false testimony was given at the trial.” United States v. Hiss, 107 F. Supp. 128, 136 (S.D.N.Y.1952), aff’d, 201 F.2d 372 (2d Cir.), cert. denied, 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368 (1953); United States v. Miller, 411 F.2d 825, 830 (2d Cir. 1969); United States v. Costello, supra, 255 F.2d at 879. In the case before us these was neither recantation by Chlystun of his testimony nor proof satisfactory to the trial court that his testimony was false. A motion for a new trial is addressed to the discretion of the district judge and our scope of review is accordingly limited." }, { "docid": "11799073", "title": "", "text": "a witness, states he did not recall Estreich’s presence at those conferences. Apart from the fact that this explanation taxes credulity, certain it is that Estreich was available to testify and at best his testimony is cumulative in support of a witness whose credibility was found wanting by the trier of the fact. Moreover, even if the defendant’s excuse that he had no recollection of Es-treich’s presence at the conference, questionable as it is, were accepted, this lapse of memory does not entitle him to a retrial. Finally, this review of the so-called new evidence abundantly establishes that it is of such a nature that even were a retrial to be granted, it is extremely unlikely an acquittal would result. The motion is denied. . United States v. Fassoulis, 293 F.2d 243 (2d Cir. 1961). . 308 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961). ■ • . Compare United States v. Johnson, 327 U.S. 106, 112, 66 S.Ct. 464, 90 L.Ed. 562 (1946); United States v. On Lee, 201 F.2d 722, 723 (2d Oir.), cert. denied, 345 U.S. 936, 73 S.Ct. 798, 97 L. Ed. 1364 (1953). . United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562 (1946); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); Weiss v. United States, 122 F.2d 675, 691 (5th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941). . In this instance the Court is applying the . so-called Berry test, Berry v. State, 10 Ga. 511, 527 (1851), and not the Larrison test, Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), applicable in instances of recantation of testimony. Cf. United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). See also, United States v. Johnson, 327 U.S. 106, 110 n. 4, 111 n. 5, 66 S.Ct. 464, 90 L.Ed. 562 (1946). . United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert." }, { "docid": "626604", "title": "", "text": "Joann Bar-one made a statement of recantation to Attorney Schiano. On April 23, 1987, the district court issued a memorandum decision and order denying the motions. This appeal ensued. II. DISCUSSION Motions for a new trial based upon newly discovered evidence are “ ‘granted only with great caution,’ ” United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975) (quoting United States v, Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958)), cert. denied, 429 U.S. 819, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976), in “ ‘the most extraordinary circumstances.’ ” United States v. Ochs, 548 F.Supp. 502, 512 (S.D.N.Y.1982) (quoting United States v. Fassoulis, 203 F.Supp. 114, 117 (S.D.N.Y.1962) (Weinfeld, J.)), aff'd, 742 F.2d 1444 (2d Cir.1983). Courts are particularly reluctant to grant such motions where the newly discovered evidence consists of a witness recantation as such recantations are “looked upon with the utmost suspicion.” United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1318 (2d Cir.) (quoting United States v. Troche, 213 F.2d 401, 403 (2d Cir.1954) (quoting Harrison v. United States, 7 F.2d 259, 262 (2d Cir.1925))), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). Accordingly, before granting a motion for a new trial on the ground that a witness recanted her trial testimony, a trial court must be satisfied (1) that the testimony recanted was false and material, Sostre, 513 F.2d at 1317; United States ex rel. Rice v. Vincent, 491 F.2d 1326, 1331 (2d Cir.), cert. denied, 419 U.S. 880, 95 S.Ct. 144, 42 L.Ed.2d 120 (1974); (2) that without the original testimony the jury probably would have acquitted the defendant, United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980); Stofsky, 527 F.2d at 246; and (3) that the party seeking the new trial was surprised when the false testimony was given or did not know of its falsity until after the trial, Sostre, 513 F.2d at 1317; Rice, 491 F.2d at 1332; and could not with due diligence have discovered it earlier. Alessi, 638 F.2d at 479; Ochs," }, { "docid": "12422973", "title": "", "text": "offers no reason why the general rule of inadmissibility should not apply to his case. Compare United States v. Glasser, supra, at 1002; United States v. Deaton, 381 F.2d 114, 117 (2d Cir. 1967); United States v. Masino, 275 F.2d 129, 133 (2d Cir. 1960). III. Even if this evidence would have been admissible to impeach Peden on cross-examination, a new trial was properly denied. A motion for a new trial based on newly discovered evidence is addressed to the discretion of the trial court. United States v. Silverman, 430 F.2d 106, 119 (2d Cir. 1970); United States v. Lombardozzi, 343 F.2d 127, 128 (2d Cir.), cert. denied, 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702 (1965); Brown v. United States, 333 F.2d 723, 724 (2d Cir. 1964). It is “not favored and should be granted only with great caution,” United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958), and only when it is evident that the trial judge has abused his discretion. United States v. On Lee, 201 F.2d 722, 724 (2d Cir.), cert. denied, 345 U.S. 936, 73 S.Ct. 798, 97 L.Ed. 1364 (1953). See United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562 (1946). Reversal of the trial court’s order in the circumstances of this case would require a finding by us that the new evidence “is such as would probably produce an acquittal.” United States v. On Lee, supra, 201 F.2d at 724; see also, United States v. Silverman, supra, 430 F.2d at 119; United States v. Polisi, supra, 416 F.2d at 576-577; United States v. Acariño, supra, 408 F.2d at 516; United States v. Faustin, 371 F.2d 820, 821 (2d Cir.), cert. denied, 387 U.S. 935, 87 S.Ct. 2062, 18 L.Ed.2d 998 (1967). This court has several times held that “[t]he discovery of new evidence which merely discredits a government witness and does not directly contradict the government’s case ordinarily does not justify the grant of a new trial.” United States v. Aguillar, 387 F.2d 625," }, { "docid": "22307902", "title": "", "text": "would lead to a different verdict. In the meantime, the government had commenced its own investigation into the Glassers’ financial affairs. After interviewing Glasser and inspecting additional records, the prosecutors on September 12, 1974, informed defense counsel of further discrepancies in Glasser’s previous explanation of the source and size of his bank deposits, revealing that Glasser had deposited additional amounts over a longer period of time (1962-1973), and indicating that his dealings with fur manufacturers may have been broader and in larger amounts than he had previously testified. The defendants again moved for a new trial. Again Judge Pierce, on June 4, 1975, denied their motion. Defendants appeal from their convictions and from the denial of their motions for a new trial. DISCUSSION At the threshold it must be recognized that in the interest of according finality to a jury’s verdict, a motion for a new trial based upon previously-undis-. covered evidence is ordinarily “not favored and should be granted only with great caution.” United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958); United States v. Sposato, 446 F.2d 779 (2d Cir. 1971). Indeed, the standard of review governing most instances of newly-discovered evidence, first enunciated in Berry v. Georgia, 10 Ga. 511, 527 (1851), and steadfastly adhered to for over a century, is that the new evidence will not entitle the defendant to a new trial unless “it would probably produce a different verdict.” See United States v. De Sapio, 456 F.2d 644, 647 (2d Cir.), cert. denied, 406 U.S. 933, 92 S.Ct. 1776, 32 L.Ed.2d 135 (1972); United States v. Polisi, 416 F.2d 573, 577 (2d Cir. 1969); 8A Moore’s Federal Procedure § 33.04(1). In two categories of cases, however, courts have deviated from this “probability” test and permitted new trials based upon a less exacting demonstration of the new evidence’s materiality to the defendant’s conviction. One line of cases looks to the existence of prosecutorial culpability in suppressing or failing to disclose the evidence in question; the other turns upon a witness’s commission of" }, { "docid": "23169426", "title": "", "text": "addition, while his testimony was unclear, Teixeira admitted in those trials either that he did not file an income tax return for 1987, or that he did not file an income tax return for 1988 reporting his 1987 income. As Figueroa contends, this newly produced evidence reflects Teixeira’s bias, interest, and dishonesty. At the outset, we note that “a [Rule 33] motion for a new trial based upon previously-undiscovered evidence is ordinarily ‘not favored and should be granted only with great caution.’ ” United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975) (quoting United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958)), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976). See also United States v. Spencer, 4 F.3d 115, 118 (2d Cir.1993) (new trial is warranted “only in the most extraordinary of circumstances” (citation and emphasis omitted)). A new trial is warranted under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), however, where (1) “the government failed to disclose favorable evidence, and (2) ... the evidence it ‘suppressed’ was material.” United States v. Payne, 63 F.3d 1200, 1208 (2d Cir.1995) (citing Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97). As to the first factor, “evidence whose disclosure is required under Brady may consist not only of exculpatory evidence but also of impeachment evidence.” Id. at 1210 (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985)). As to the second factor, evidence is material generally if it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, — U.S. -, -, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); see also Bagley, 473 U.S. at 678, 105 S.Ct. at 3381-82. Evidence of impeachment is material if the witness whose testimony is attacked “supplied the only evidence linking the defendant(s) to the crime,” United States v. Potrillo, 821 F.2d 85, 90 (2d Cir.1987), or “where the" }, { "docid": "18170508", "title": "", "text": "motion in arrest of judgment. In Larrison v. United States, 7 Cir., 24 F.2d 82, this court announced a proper guide for courts considering motions for a new trial on the ground of newly discovered evidence where witnesses who had testified against the defendant at the trial had recanted, or where the court was reasonably satisfied that their testimony was false. This court said, 24 F.2d at page 88, that if, in such a case, the defendant “was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial,” and that without the false testimony the jury might have reached a different verdict, the motion for a new trial should be granted. But, in United States v. Johnson, 7 Cir., 142 F.2d 588, 592, where, as here, there had been no recantation or false swearing shown, this court followed the generally accepted rules for testing the sufficiency of motions for a new trial in criminal cases on the ground of newly discovered evidence as said rules were stated in Berry v. State of Georgia, 10 Ga. 511, namely: “ * * * 1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would probably produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only — viz.:—speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is-to impeach-the character'br credit of a witness.” • ' Applying these tests to the motion and affidavits here under consideration we cannot say that there was an abuse of discretion by the trial court in denying the motion. The affidavit made by David W. Alla-by states that he was an" } ]

[ { "docid": "22204916", "title": "", "text": "being so, not only does the objection to wagers disappear, but also the principle of public policy referred to, at least in its most convincing form. The danger that might arise from a general license to all to insure whom they like does not exist. Obviously it is a very different thing from granting such a general license, to allow the holder of a valid insurance upon his own life to transfer it to one whom he, the party most concerned, is not afraid to tru'st. The law has no universal cynic fear of the temptátion opened by a pecuniary benefit accruing upon a death. It shows no prejudice against remainders after life estates, even by the rule in Shelley’s Case.' Indeed, the ground of the objection to life insurance without interest in the earlier English cases was not the temptation to murder but the fact that such wagers came to be regarded as a mischievous kind of gaming. St. 14 George III, c. 48. ' On the other hand, life insurance has become in our days one of the best recognized forms of investment and self-compelled saving^ So far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property. This is recognized by the Bankruptcy Law, § 70, which provides that unless the cash surrender Value of a policy like the one before us is secured to the trustee within thirty days after it has been stated the policy shall pass to the trustee as assets. Of course the trustee may have no interest in the bankrupt’s life. To deny the right to sell except to persons having such an interest is to diminish appreciably the value of the contract in the owner’s hands. The collateral difficulty that arose from regarding life insurance as a contract of indemnity only, Godsall v. Boldero, 9 East, 72, long has disappeared. Phœnix Mutual Life Ins. Co. v. Bailey, 13 Wall. 616. And cases in which a person having an interest lends himself to one without any as a cloak to what is in its inception" } ]

[ { "docid": "11348899", "title": "", "text": "remains in the bankrupt, does not pass to the trustee, and the bankrupt’s disposition of it prior to bankruptcy is therefore of no concern to the trustee or the creditors he represents.” Rutledge v. Johansen, 270 F.2d 881, 882 (10th Cir. 1959). “‘[A] transfer of exempt property of a debtor, though it is to a creditor and to apply on an antecedent indebtedness, does not give rise to a voidable preference.’ Remington on Bankruptcy, Vol. 4, § 1678. See also Collier on Bankruptcy, 14th Ed. Vol. 3, § 60.25.” ibid. There are instances, however, when an insurance policy may lose its exempt character. Thus where the bankrupt changes the beneficiary for his personal advantage, the cash surrender value of the policy shall constitute unadministered assets of the bankrupt estate. In Re Messinger, 29 F.2d 158 (2d Cir. 1928). A statute such as Ga.Code Ann. § 56-905 does not seek to protect the bankrupt, but it protects the rights of the beneficiary or assignee of the insurance policy from the creditors of the insured. In Re Messinger, supra. In this case, the insured did not cause the insurance to lose its exempt character by transferring its ownership to claimant, as there is no showing nor finding that the transfer was for his own personal advantage. Upon becoming owner and beneficiary of the insurance policy, claimant had the right to surrender the policy and receive its cash surrender value, and such proceeds were not recoverable by the trustee. Schwartz v. Holzman, 69 F.2d 814 (2d Cir. 1934). The fact that the claimant is a “person so effecting” the insurance on the bankrupt does not remove her from the bounds of protection afforded beneficiaries and assignees of life insurance policies by the statute (Ga.Code Ann. § 56-905). Giving to the statute a liberal interpretation (Schwartz v. Holzman, supra, at 815), this court feels that the statute removes persons effecting insurance on the life of another from its protection only when such “person so effecting” the insurance is the debtor against whom creditors are seeking relief. The mere fact that claimant happens to be" }, { "docid": "18729506", "title": "", "text": "claimed the life insurance policy as exempt on Schedule B-4 of the petition schedules pursuant to N.C.GEN.STAT. § lC-1601(a)(6). The cash value of the policy on the petition date was Six Hundred Sixty-Nine and 50/100 Dollars ($669.50). 5. Within one hundred eighty (180) days of the filing of the bankruptcy petition, Janet E. Sharik, debtor, died, and George Sharik, debtor, as beneficiary under the life insurance policy, has claimed the policy proceeds. 6. The plaintiff-trustee claims ownership of the life inshrance policy proceeds pursuant to 11 U.S.C. § 541(a)(5). ISSUE The issue before the Court is whether the proceeds from the policy of life insurance are property of the bankruptcy estate of George Sharik or the property of George Sharik individually. CONSIDERATION OF ISSUE Pursuant to 11 U.S.C. § 541(a)(5)(C), the Chapter 7 bankruptcy estate includes: An interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date as beneficiary of a life insurance policy or of a death benefit plan. North Carolina General Statute § 1C-1601(a)(6) allows a debtor an exemption in a life insurance policy as provided by Article X, section 5 of the North Carolina Constitution. Where a person insures her own life for the sole benefit of her spouse or chil dren or both, the insurance proceeds, in the event of death, are free from all claims of creditors of the insured, and the policy shall not be subject to the claim of any creditor of the insured during the insured’s life. N.C. CONST, art. X, § 5. Upon filing a bankruptcy petition, a debtor can claim as exempt the value of her life insurance policy. There is no provision, however, that extends the protection of the life insurance exemption to the beneficiary of the policy once the proceeds are in the beneficiary’s hands. The proceeds are treated like any other asset of the beneficiary and are available to his creditors," }, { "docid": "1194952", "title": "", "text": "shall execute any and all documents necessary to to [sic] secure this equitable distribution to the Wife of her one-half share of the joint assets of the parties. Debtor filed her chapter 7 petition on January 27,1993. In schedule C of her petition, debtor claimed as exempt her personal property pursuant to Article X, § 4 Florida Constitution and Section 222.11, Florida Statutes. Subsequently, debtor amended her claim of exemption to include the property settlement with her former husband. The trustee timely objected to debtor’s claim of exemption but abandoned his objections as to all exemptions except the objection to the claim of exemption for debtor’s right to receive funds pursuant to the property settlement pursuant to Section 222.14 Fla.Stat. Conclusions of Law Upon filing a petition in bankruptcy, all interests in property of the debtor becomes property of the estate. 11 U.S.C. § 541. Nonetheless, a debtor may exempt certain property from the estate by filing a claim of exemption. 11 U.S.C. § 522. Florida has opted out of the federal exemption scheme provided in § 522(d), thus debtor’s right to exempt property from the estate is controlled by Florida law. Section 222.20 Fla.Stat. Debtor claims as exempt, pursuant to Fla. Stat. 222.14, the payments received and the right to receive future payments pursuant to the property settlement and judgment. Section 222.14 states in relevant part: The cash surrender value of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor. The sole issue before the Court is whether the property settlement payments provided in the judgment of dissolution of marriage are proceeds of an annuity contract pursuant to section 222.14. The" }, { "docid": "18721452", "title": "", "text": "MEMORANDUM CLIVE W. BARE, Bankruptcy Judge. At issue is whether the debtor is entitled to a homestead exemption under Florida law. Also at issue is whether the debtor is entitled under Florida law to exempt the cash surrender value of certain life insurance policies of which she is the owner and beneficiary. On September 9, 1983, an involuntary chapter 7 petition was filed against the debtor Sonya W. Butcher. Initially, the debtor contested the entry of an order for relief. Some six months later, however, she consented to the entry of an order for relief on March 28, 1984. Shortly thereafter, on April 10,1984, the debtor converted her case to a chapter 11 case. The debtor’s subsequent efforts to obtain confirmation of a plan were unsuccessful. On August 15,1985, upon motion of the Federal Deposit Insurance Corporation, the debt- or’s case was converted back to a chapter 7 case. In her Schedule B-4, the debtor claimed the following property as exempt: Location, Description & so far as relevant to the claim of exemption, present use of property Specify statute creating exemption ■ Value Claimed Exempt Cash Surrender Value of Life Insurance Policies Listed in Schedule B-2(r) Fla. Statutes § 222.14 Full value est[imated] to be in excess of $55,000 Legal Residence at 100 Magnolia Lake Court, Longwood, Florida; being Lot 9 Block C Sweetwater Club Unit 2 in plat book 21, pp. 77-79 in public records Seminole County, Florida Fla. Constitution Article X, § 4 Full value of Debtor’s interest approx value in excess of $337,500.00 Gold Ring with Diamond inset up to the value $1000.00 Fla. Statutes § 222 Full value not to [exceed] $1000 statutory limitation The trustee has objected to the debtor’s claim of exemptions. THE TRUSTEE’S OBJECTION TO THE DEBTOR’S CLAIM OF A FLORIDA HOMESTEAD EXEMPTION When the debtor’s chapter 7 case was initially commenced in September 1983, the Florida homestead exemption statute provided: (a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments" }, { "docid": "12924500", "title": "", "text": "ORDER ON DEBTOR’S MOTION FOR REHEARING AND/OR RECONSIDERATION OF ORDER ON (1) TRUSTEE’S MOTION TO TURN OVER PROPERTY OF THE ESTATE, AND (2) TRUSTEE’S OBJECTION TO DEBTOR’S AMENDED CLAIM OF EXEMPTIONS PAUL M. GLENN, Chief Judge. THIS CASE came before the Court for hearing to consider the Debtor’s Motion for Rehearing. and/or Reconsideration of Order on (1) Trustee’s Motion to Turn Over Property of the Estate, and (2) Trustee’s Objection to Debtor’s Amended Claim of Exemptions. The Debtors, Bruce and Judith Morrison, filed a joint case under Chapter 13 in April, 2006. In September, 2007, more than 180 days after the filing of the peti tion, Bruce Morrison died. In October, 2007, Judith Morrison converted the case to a case under Chapter 7, and in November, 2007, Judith Morrison received the sum of $10,000.00 as the beneficiary of Bruce Morrison’s life insurance policy. Generally, the issue in this case is whether the life insurance benefits are property of Judith Morrison’s bankruptcy estate in her converted ease. The Court previously entered an order determining that the life insurance benefits are property of the estate as “proceeds” of the underlying insurance policy. In the Motion presently before the Court, the Debtor, Judith Morrison, asks the Court to reconsider its Order. Background The Debtors, Bruce W. Morrison and Judith A. Morrison, filed a petition under Chapter 13 of the Bankruptcy Code on April 8, 2006. Approximately one month before the petition was filed, the Debtor, Bruce Morrison, obtained a life insurance policy through his employer. It appears from the record that Bruce Morrison was the insured under the policy, and that Judith Morrison was the beneficiary under the policy. The policy was not disclosed on the Debtors’ Schedule of Assets filed with the petition. On September 22, 2006, the Court entered an Order confirming the Debtors’ Chapter 13 Plan. (Doc. 35). Bruce Morrison died on September 19, 2007, approximately one. year after the Chapter 13 Plan was confirmed, and approximately seventeen months after the petition was filed. (Doc. 46). On October 30, 2007, the Chapter 13 case was converted to a case under" }, { "docid": "2141166", "title": "", "text": "CARL L. BUCKI, Bankruptcy Judge. In this Chapter 7 proceeding, the trustee has objected to a portion of the debtor’s claim of exemption to the cash value of a life insurance policy. Specifically, the trustee contends that a prepetition premium and interest payment was fraudulent and that therefore that payment must enure to the benefit of creditors pursuant to N.Y. Insurance Law § 3212(e)(2)(A) (McKinney 1985). Because this provision applies to instances only of actual and not implied fraud, the trustee’s objection is overruled. Bret Llewellyn, the debtor herein, filed his petition for relief under Chapter 7 of the Bankruptcy Code on March 27, 1998. Among his scheduled assets was an interest in a policy of whole life insurance. On the date of filing, this policy had a gross cash surrender value of $37,753, against which were outstanding loans of $21,400. Thus, the policy’s net cash value totaled $16,353, to which Llewellyn claimed a full exemption. On behalf of creditors, the trustee now asserts an interest in that portion of the cash value which derived from a payment that Llewellyn made to the insurance company during January 1998 in the total amount of $4,729. This sum included an annual premium due by February 1, 1998, in the amount of $3,269, as well $1,460 for interest on the outstanding policy loan. At the time that the debtor made this payment, he was a defendant in an action for money damages. Section 3212 of the New York Insurance Law broadly exempts the value of most insurance policies from administration by a bankruptcy trustee. In particular, subdivision (b)(1) of this statute provides that “[i]f a policy of insurance has been or shall be effected by any person on his own life in favor of a third person beneficiary, or made payable otherwise to a third person, such third person shall be entitled to the proceeds and avails of such policy as against the creditors, personal representatives, trustees in bankruptcy and receivers in state and federal courts of the person effecting the insurance.” This exemption, however, is subject to limitations in subdivision (e) of" }, { "docid": "18598666", "title": "", "text": "ages the cash value is less than the death benefit until year 60 of the policy when the insured reaches age 100. On that date the cash value equals $221,375.00 while the death benefit equals $221,373.00. Thus, the policy is unmatured until such time as the insured dies or attains age 100 and the death benefit (face amount) is payable to the insured. Since the debtor was neither dead nor age 100 on the date of filing, the Court concludes that the single premium increasing whole life insurance policy purchased from the Charter National Life Insurance Company was unmatured, and was exempt pursuant to § 627.6(7) (Code of Iowa 1985) as of the filing of Debtors’ Chapter 7 petition. ■- II. Fraudulent Transfer. The Trustee alleges in his Complaint that the Debtors’ transfer of $25,000 from the sale of real estate to the Charter National Life Insurance Company was made with the actual intent to hinder, delay, or defraud the entities to whom the Debtors were or became indebted, and seeks to avoid the transfer pursuant to 11 U.S.C. § 548(a)(1). The Debtors acknowledge that the proceeds from the real estate sold by them were converted into exempt property in the form of life insurance policies. The Trustee concedes that the conversion of nonexempt property into exempt property is permissible, even on the eve of bankruptcy. The Court recently reaffirmed this principle in In re Ellingson, 63 B.R. 271 (Bkrtcy.N.D.Iowa 1986), which held that the Debtors’ payment of over $39,000 toward the contract balance on their exempt homestead, four months prior to the bankruptcy filing, was not a fraud upon creditors for purposes of 11 U.S.C. § 727(a)(2). In enacting the 1978 Bankruptcy Code, Congress recognized debtors’ rights to convert nonexempt property into exempt property prior to filing a bankruptcy petition. The legislative history is clear that Congress did not intend to change the existing law. Both the House and Senate reports state: As under current law, the debtor will be permitted to convert nonexempt property into exempt property before filing a bankruptcy petition. The practice is not fraudulent as" }, { "docid": "13135609", "title": "", "text": "PRELIMINARY PROCEDURE CHARLES A. ANDERSON, Bankruptcy Judge. This matter is before the Court upon Motion filed by Debtor on 1 April 1983 “to set aside” this Court’s “Order for Payment of Dividends” dated 22 March 1983. On 15 April 1983, the Trustee filed a written “Memorandum Contra Motion of Debtor.” The Court heard the matter on 6 May 1983. The following decision is based upon the parties’ arguments presented at the hearing, and the record, inclusive of the parties’ memoranda. FINDINGS OF FACT As required by 11 U.S.C. § 521(1) and Rules 108 and 110 of the Bankruptcy Rules of Procedure, Debtor timely filed his Schedules with this Court on 30 March 1982 (simultaneously with his Chapter 7 Petition). In Schedule B-4, Debtor claimed an exemption in his homestead, and also listed a number of specific items of personal property as exempt under 11 U.S.C. § 522. Pertinent to the instant matter, Debtor also claimed $800.00 as exempt, as follows: Ohio Revised $400.00 Code § 2329.66(A)(4)(a) other property - money in Petitioner’s possession other property - mise, in Petitioner’s Ohio Revised $400.00 possession Code § 2329.66(A)(17) No objections to Debtor’s exemptions as originally scheduled were pursued. The instant matter involves disposition of money received from the surrender by the Trustee of four life insurance policies for which Debtor is the beneficiary. On 2 July 1982, the Chapter 7 Trustee filed an Application for authority to surrender the policies to the insurer in exchange for their “cash surrender value.” The Court, by Amended Order issued 6 August 1982, granted the Trustee’s Application. On 17 September 1982, the Trustee reported receipt of $1,966.18 from the insurer in exchange for the completed surrender of the policies. The Trustee further reported that the $1,966.18 constituted the total amount available for distribution to creditors, and that no distributions had been made as of that date. On 22 February 1983, the Court issued a Discharge Order “relieving Debtor from all dischargeable debts.” On 22 March 1983, the Court issued an “Order Authorizing Payment of Expenses, Compensation and Distribution of Funds,” wherein the Court essentially authorized payment" }, { "docid": "6810369", "title": "", "text": "the policy. In the Bankruptcy Court, Judge Kaplan sustained the trustee’s objection and ruled that the policies were subject to administration. On appeal to the District Court, the Honorable William M. Skretny affirmed the order of Judge Kaplan. In his written opinion, Judge Skretny did accept a portion of the rationale that I had adopted in Polanowski: As was established by the Second Circuit in In re Messinger, 29 F.2d 158, 161-62 (1928), and reiterated in In re Polanowski, 258 B.R. 86, 89 (Bankr.W.D.N.Y.2001), absent a fraudulent transfer, one spouse may pay for a life insurance policy on his or her life for the benefit of the other spouse, and that policy, including any cash surrender value, is beyond the reach of the creditors of the insured spouse. While the Second Circuit upheld an exemption In re Messinger for the cash value of a life insurance policy as against creditors of the insured/policy owner/debtor, the court did not address whether such an exemption existed as against the creditors of a beneficiary, when that beneficiary is a joint debtor in a bankruptcy case. In re Teufel, No. 02-CV-81S, slip op. at 8 (W.D.N.Y. Sept. 24, 2002). The District Court disagreed with Polanowski, however, with respect to the exempt status of the interest of the beneficiary. Judge Skretny ruled that although section 3212(b)(1) of the Insurance Law created an exemption as against claims of the owner’s creditors, the statute did not insulate the cash value of the life insurance policy from the beneficiary’s creditors. Accordingly, in the context of a joint filing, the bankruptcy estate would include the insurance as a non-exempt asset of the beneficiary. In support of this outcome, Judge Skretny further noted that Insurance Law § 3212(b)(2) created a limited exemption for insurance that a debtor effects not on his or her own life, but on the life of the spouse. Rather than to fit into the exception of subdivision (b)(2), Mr. and Mrs. Teufel each chose to purchase insurance on their own lives. In conclusion, Judge Skretny stated that he declined “the invitation to judicially create an exemption" }, { "docid": "12924501", "title": "", "text": "life insurance benefits are property of the estate as “proceeds” of the underlying insurance policy. In the Motion presently before the Court, the Debtor, Judith Morrison, asks the Court to reconsider its Order. Background The Debtors, Bruce W. Morrison and Judith A. Morrison, filed a petition under Chapter 13 of the Bankruptcy Code on April 8, 2006. Approximately one month before the petition was filed, the Debtor, Bruce Morrison, obtained a life insurance policy through his employer. It appears from the record that Bruce Morrison was the insured under the policy, and that Judith Morrison was the beneficiary under the policy. The policy was not disclosed on the Debtors’ Schedule of Assets filed with the petition. On September 22, 2006, the Court entered an Order confirming the Debtors’ Chapter 13 Plan. (Doc. 35). Bruce Morrison died on September 19, 2007, approximately one. year after the Chapter 13 Plan was confirmed, and approximately seventeen months after the petition was filed. (Doc. 46). On October 30, 2007, the Chapter 13 case was converted to a case under Chapter 7 of the Bankruptcy Code. (Doc. 47). On or about November 22, 2007, Judith Morrison received the sum of $10,000.00 from Aetna Life Insurance Company. The funds represent the proceeds of the insurance policy on Bruce Morrison’s life. Judith Morrison contends that she will not receive any additional benefits under the policy because her husband’s death was the result of a suicide. (Doc. 84, pp. 6-7). On January 3, 2008, the Chapter 7 Trustee filed a Motion to Turn Over Property of the Estate. (Doc. 68). On January 14, 2008, Judith Morrison filed an Amendment to her Bankruptcy Schedules and disclosed a “100% ownership” interest in the insurance policy. She also claimed the interest as exempt pursuant to § 222.13 and § 222.14 of the Florida Statutes. (Doc. 71). On January 22, 2008, the Chapter 7 Trustee filed an Objection to Debtors’ Amended Claim of Exemptions. (Doc. 74). Generally, the Trustee asserts that the proceeds of the life insurance policy are property of the estate pursuant to § 541(a) of the Bankruptcy Code, and" }, { "docid": "9963698", "title": "", "text": "an order converting the case back to Chapter 7 on February 21, 1992). Included in Rundlett’s filed exemptions were the proceeds of the five insurance policies which the debtor claimed were exempt under New York Insurance Law § 3212(b)(2). The debtor moved for summary judgment on her claims that the life insurance proceeds were exempt. In a decision dated June 1, 1992, the bankruptcy court held that, of the $3.5 million exemption sought, the debtor was entitled to an exemption of $603,097.60. Judge Schwartzberg found that the New York statute which exempted life insurance proceeds only applied to the creditors of a spouse-beneficiary if the spouse also held title to the policy. Since the sum of the proceeds of the two policies assigned to the debtor was $603,097.60, that amount was found exempt. In re Rundlett, 142 B.R. 649 (Bankr.S.D.N.Y.1992). This decision was implemented by order dated July 16, 1992. On July 9, 1992, the bankruptcy court issued another decision which attempted to reconcile the fact that, in light of the debt- or’s $1.2 million expenditure of insurance proceeds, there were insufficient funds to account both for the $2,924,903.23 in nonexempt proceeds and $603,097.60 in exempt proceeds. The trustee argued that, as a consequence, the debtor was not entitled to the full $603,097.60 exemption. The bankruptcy court found that Rundlett was indeed entitled to the full exemption and implemented its decision by order issued on the same day. On July 29, 1992, the Chapter 7 trustee commenced an adversarial proceeding to avoid and recover the $130,000 payment to Torell, claiming that the payment was a preferential transfer voidable under 11 U.S.C. § 547(b). Judge Schwartzberg granted summary judgment to the trustee and voided the transfer. In re Mary Jane Rundlett, 149 B.R. 353 (Bankr.S.D.N.Y.1993). Torell has decided not to appeal that decision. Rundlett now appeals Judge Schwartz-berg’s July 16 order which declared only the proceeds of two of the five life insurance policies to be exempt. The trustee cross appeals the bankruptcy court’s July 9 and July 16 orders allowing the debtor the full $603,097.60 exemption claiming that (1) the" }, { "docid": "17383474", "title": "", "text": "MICHAEL J. KAPLAN, Bankruptcy-Judge. This case presents the issue of whether a husband and wife, as joint Chapter 7 debtors who have each “effected” two life insurance policies on their own lives and named their spouse as the beneficiary, may exempt the cash value of the policies under § 3212(b)(1) of N.Y. Insurance Law. The facts of the case are undisputed: the Debtors claim the policies as exempt, and the Chapter 7 Trustee has objected. Briefs have been submitted. The Court finds that § 3212(b)(1) applies, is clear, and does not avail the Debtors. DISCUSSION This appears to be the only case in which such reciprocal policies are addressed in the context of a bankruptcy case in which both of the insureds are debtors in a Chapter 7 case. In cases that do not involve reciprocal policies, or do not involve joint bankruptcy, there have been constructs by which some courts have viewed one spouse as having acted as “agent” for the other so as to give the beneficiary/spouse the benefit of being both the beneficiary and the “effector” or “owner” of the policy on the other’s life, so as to give the beneficiary/spouse the protection of § 3212(b)(2) as against her own creditors. No court, in my view, would ever ignore the agreed facts so as to achieve a “double-deeming” of reciprocal agency, so as to prejudice the creditors of both spouses in a joint bankruptcy case. Indeed, even if two spouses were to document and prove a de jure reciprocal double-agency in the purchase of polices in similar amounts, one would end up asking, “Why?” Each spouse could simply have used the same purchase monies to purchase polices on each other’s life, and brought themselves squarely within § 3212(b)(2). Here the record is clear. Husband owns the policies on his own life and Wife owns the policies on her own life. No deeming of “agency” is sought. There is no conceivable interpretation of the statute or the cases that would exempt the cash surrender value of all of these policies from all of the creditors of each spouse," }, { "docid": "106278", "title": "", "text": "Life Insurance Co. v. Statham, 93 U.S. 24, 30, 23 L.Ed. 789; Vance on Insurance, pp. 260, 262 and cases there cited. One who takes out a policy on his own life, after application in his own name accepted by the company, becomes in so doing a party to a contract, though the benefits of the insurance are to accrue to some one else. Mutual Life Ins. Co. of New York v. Hurni Packing Co., 263 U.S. 167, 177, 44 S.Ct. 90, 68 L.Ed. 235; Vance on Insurance, pp. 90, 91, and 108. The rights and interests thereby generated do not inhere solely in those who are to receive the proceeds. They inhere also in the insured who in co-operation with the insurer has brought the contract into being. * * * The contracts remain his, or his at least in part, though the fruits when they are gathered are to go to some one else.” As said by Mr. Justice Holmes in Grigsby v. Russell, 222 U.S. 149, 156, 32 S.Ct. 58, 59, 56 L.Ed. 133, “Life insurance has become in our days one of the best recognized forms of investment and self-compelled saving. So far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property.” In cases arising under state statutes, where the question is whether there is an indebtedness owing the insured by the company, the majority holding is that the interest of the insured under the policies is not subject to attachment or garnishment. See note 37 A.L.R.2d 271 et seq. In cases arising under the bankruptcy act, 11 U.S.C.A. § 1 et seq., however, where the question is whether the insured has a property interest which vests in the trustee in bankruptcy, it has generally been held that he does have such interest if he has reserved the right to change the beneficiary and the policy has a cash surrender value. Notes 68 A.L.R. 1216 and 1232, 103 A.L.R. 240, 169 A.L.R. 1381 and 1388. This has been expressly decided by the Supreme Court of the United States." }, { "docid": "18729505", "title": "", "text": "MEMORANDUM OPINION THOMAS M. MOORE, Bankruptcy Judge. This matter comes on to be heard upon the complaint to determine the bankruptcy estate’s interest in life insurance proceeds and upon the joint motion for a judgment on the pleadings filed by the plaintiff and the defendant. The material facts are not in dispute. FINDINGS OF FACT 1. George E. Sharik and Janet E. Sharik filed a voluntary Chapter 7 bankruptcy petition on March 14, 1984, and subsequently received their discharge. 2. Algernon L. Butler, Jr., is the duly appointed, qualified, and serving trustee in bankruptcy for the debtors, George Sharik and Janet E. Sharik. 3. On Schedule B-2 of the schedules accompanying the debtors’ petition, a life insurance policy was listed as an asset of Janet E. Sharik. The policy, No. N670738H, was owned by Janet E. Sharik, debtor, and reflected George Sharik, debt- or, as the beneficiary. The policy was issued by Life and Casualty Insurance Company of Tennessee in the coverage amount of Five Thousand and No/100 Dollars ($5,000.00). 4. Janet E. Sharik, debtor, claimed the life insurance policy as exempt on Schedule B-4 of the petition schedules pursuant to N.C.GEN.STAT. § lC-1601(a)(6). The cash value of the policy on the petition date was Six Hundred Sixty-Nine and 50/100 Dollars ($669.50). 5. Within one hundred eighty (180) days of the filing of the bankruptcy petition, Janet E. Sharik, debtor, died, and George Sharik, debtor, as beneficiary under the life insurance policy, has claimed the policy proceeds. 6. The plaintiff-trustee claims ownership of the life inshrance policy proceeds pursuant to 11 U.S.C. § 541(a)(5). ISSUE The issue before the Court is whether the proceeds from the policy of life insurance are property of the bankruptcy estate of George Sharik or the property of George Sharik individually. CONSIDERATION OF ISSUE Pursuant to 11 U.S.C. § 541(a)(5)(C), the Chapter 7 bankruptcy estate includes: An interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled" }, { "docid": "6810368", "title": "", "text": "but limited bases for exemptibility. I felt that the interest of the insured owner was always exempt under subdivision (b)(1), and that the beneficiary held no interest that a trustee could administer. Agreeing with this position was my other esteemed colleague, the Honorable John C. Ninfo, II, in his decision in In re Hickson, No. 00-20130 (Bankr.W.D.N.Y. Aug. 14, 2000). Nonetheless, I recognized the need to resolve the conflict of authority, and urged the parties to appeal my decision in Polanowski. Although no appeal was taken in that case, other litigants obtained a ruling from the district court on a similar dispute in In re Teufel. In Teufel, the trustee objected to a claim of exemption in two polices of whole life insurance. Each of the co-debtor spouses had purchased or “effected” one of these policies in order to insure his or her own life, and each spouse had designated the other as his or her beneficiary. The respective policy owners retained exclusive rights to change beneficiary and to liquidate the cash surrender value of the policy. In the Bankruptcy Court, Judge Kaplan sustained the trustee’s objection and ruled that the policies were subject to administration. On appeal to the District Court, the Honorable William M. Skretny affirmed the order of Judge Kaplan. In his written opinion, Judge Skretny did accept a portion of the rationale that I had adopted in Polanowski: As was established by the Second Circuit in In re Messinger, 29 F.2d 158, 161-62 (1928), and reiterated in In re Polanowski, 258 B.R. 86, 89 (Bankr.W.D.N.Y.2001), absent a fraudulent transfer, one spouse may pay for a life insurance policy on his or her life for the benefit of the other spouse, and that policy, including any cash surrender value, is beyond the reach of the creditors of the insured spouse. While the Second Circuit upheld an exemption In re Messinger for the cash value of a life insurance policy as against creditors of the insured/policy owner/debtor, the court did not address whether such an exemption existed as against the creditors of a beneficiary, when that beneficiary is" }, { "docid": "12060415", "title": "", "text": "of property as exempt, approximately $700,000. In addition, rather than preserving some part of his prior estate, Tveten had converted his homestead, stocks, retained earnings and employee retirement plan into future liquid income which he could cash in immediately after discharge. In re Tveten, 70 B.R. 529, 534 (Bankr.D.Minn.1987). The bankruptcy court concluded from all the facts that there was an intent to defraud. Even if the exemptions are allowed, Tveten’s conduct in transferring the assets amounts to nothing more than an attempt to defraud creditors, and an abuse of the Bankruptcy Code. * * * This is not a case like Forsberg [v. Security State Bank, 15 F.2d 499 (8th Cir.1926) ] where the debtor converted property before bankruptcy in order to take advantage of reasonable exemptions provided by state law. Rather, Tveten converted substantial amounts of property into cash and now claims approximately $700,000 in assets as exempt. Id. at 533-34. Because Tveten was a Chapter 11 proceeding, that court withheld judgment on Tveten’s discharge pending submission of a reorganization plan. Tveten sought interlocutory appeal of the bankruptcy court’s initial findings. The district court treated the bankruptcy court’s conclusions as findings of fact, and affirmed. Norwest Bank Nebraska v. Tveten, 82 B.R. 95 (D.Minn.1987). The Hansons were South Dakota farmers who filed for liquidation under Chapter 7. They sold non-exempt assets to family members for fair consideration. With the proceeds, they purchased two life insurance policies with a combined cash surrender value of $19,955. The Hansons also prepaid $11,033 on their homestead’s mortgage. The bankruptcy court found no extrinsic evidence of fraud and the district court affirmed that finding as not clearly erroneous. Hanson, 848 F.2d at 867-68. In that case, state law limited exempt life insurance proceeds to $20,000 and placed no value limit on the homestead exemption. S.D.Codified Laws Ann. § 43-45-3 (1983) (homestead), § 58-12-4 (1978) (life insurance). We considered these two cases together to decide under federal law what conduct would make discharge unavailable. We recognized that separating ordinary pre-bankruptcy planning from fraudulent action is difficult. The law permits debtors to intentionally transform property" }, { "docid": "18568996", "title": "", "text": "7. Defendant Joseph E. Brown did not have the right to negotiate or dictate the terms of the annuity contract. 8. The Plaintiff made demand upon Defendant Joseph E. Brown for surrender of possession of the payments as and when received pursuant to the annuity contract, and Defendant Joseph E. Brown failed and refused to comply with the Plaintiff’s demand. 9. Defendant Kimberly J. Brown is the wife of Defendant Joseph E. Brown and is the named beneficiary of the above-mentioned John Hancock Mutual Life Insurance Company annuity. 10. The Defendants’ bankruptcy schedules show that there are no priority claims, $19,116.07 in secured claims, and $62,-388.49 in unsecured claims. All other property in the Defendants’ estate has been exempted or is abandonable by the Plaintiff due to outstanding liens. 11. The parties agree that there are no other facts which are relevant in this action, and that this case shall be submitted to the Court for decision based upon the foregoing Stipulation of Facts, without further testimony and upon the Court’s consideration of briefs to be filed herein. The Trustee seeks turnover of the weekly $1,000.00 annuity payments sufficient to pay off Debtors’ creditors. There exists scant case law for the court to base its decision upon. One case cited by the Trustee for the proposition that lottery annuity payments are subject to turnover is In re Koonce, 54 B.R. 643 (Bankr.D.S.C. 1985). In Koonce, the court held that lottery payments, which are property of the estate, may be used to satisfy Chapter 13 creditors in full, where the change in income is dramatic and the case has not been closed, dismissed, or converted. Id. Such a finding is understandable given the policy concerns behind Chapter 13, where a Debt- or makes his or her best effort to repay creditors over approximately three years. 11 U.S.C. § 322. The case at bar, however, is a Chapter 7, where a trustee liquidates the assets of the estate, and after allowing exemption that the debtor may be entitled to, pays a dividend to creditors. The policy concerns of Chapter 7 are different" }, { "docid": "18721468", "title": "", "text": "the proof showed that her primary source of income was from investments which the debtor’s husband had established in the children’s names. The debtor’s husband, according to his testimony, went to Florida “quite a bit” and “lived there in and out.” The extent of the debtor’s husband’s continued support and continued involvement with the family during the relevant time period simply do not permit a conclusion that he had ceased by either September 1983 or even by March 1984 to occupy the position as head of the family which had been his for the past twenty years. Consequently, the debtor is not entitled to assert in her bankruptcy case a homestead exemption under Florida law. THE TRUSTEE’S OBJECTION TO THE DEBTOR’S CLAIM OF EXEMPTION IN CASH SURRENDER VALUE OF LIFE INSURANCE POLICIES The debtor has listed in her schedules a number of life insurance policies which she owns and which insure her husband’s life. She estimates the cash surrender value of the policies as approximately $96,000.00. In addition, in December 1985 the debtor filed an amended Schedule B-4 claiming an exemption in the cash surrender value of a Massachusetts Mutual policy which she also owns and which also insures the life of her husband. The approximate cash value of that policy is $174,000.00. As the basis of her asserted exemption, the debtor relies upon the following Florida statute: The cash surrender values of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor. Fla.Stat. § 222.14 (West Supp. 1986). The trustee objects, contending that the plain language of the statute only exempts the cash surrender value of a life insurance policy from the" }, { "docid": "106279", "title": "", "text": "L.Ed. 133, “Life insurance has become in our days one of the best recognized forms of investment and self-compelled saving. So far as reasonable safety permits, it is desirable to give to life policies the ordinary characteristics of property.” In cases arising under state statutes, where the question is whether there is an indebtedness owing the insured by the company, the majority holding is that the interest of the insured under the policies is not subject to attachment or garnishment. See note 37 A.L.R.2d 271 et seq. In cases arising under the bankruptcy act, 11 U.S.C.A. § 1 et seq., however, where the question is whether the insured has a property interest which vests in the trustee in bankruptcy, it has generally been held that he does have such interest if he has reserved the right to change the beneficiary and the policy has a cash surrender value. Notes 68 A.L.R. 1216 and 1232, 103 A.L.R. 240, 169 A.L.R. 1381 and 1388. This has been expressly decided by the Supreme Court of the United States. Burlingham v. Crouse, 228 U.S. 459, 473, 33 S.Ct. 564, 57 L.Ed. 920; Cohen v. Samuels, 245 U.S. 50, 52-53, 38 S.Ct. 36, 37, 62 L.Ed. 143. In the case last cited, the court adverted to the provision of the bankruptcy act as to the vesting in the trustee of policies payable to the insured, his estate or his personal representative, and said: “It is true the policies in question here are not so payable, but they can be or could have been so payable at his own will and by simple declaration. Under such conditions to hold that there was nothing of property to vest in a trustee would be to make an insurance policy a shelter for valuable assets and, it might be, a refuge for fraud.” The fact that the insured has a property interest in a policy having a cash surrender value and subject to change of beneficiary by him has been recognized in a number of cases in which creditors have resorted to equitable remedies or to supplementary proceedings, which" }, { "docid": "23709219", "title": "", "text": "§ 70 (a) that: “when any bankrupt shall have any insurance policy which has a surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets. . . .” The Tennessee Code (1932) provides: “ 8456. Insurance on husband’s life, effected by himself, goes to wife and children. — Any life insurance effected by a husband on his own life shall, in case of his death, inure to the benefit of his widow and children; and the money thence arising shall be divided between them according to the statutes of distribution, without being in any manner subject to the debts of the husband. “ 8458'. Life insurance or annuity for or assigned to wife or children, or dependent relatives is exempt from claims of creditors. — The net amount payable under any policy of fife insurance or under any annuity contract upon the life of any person made for the benefit of, or assigned to, the wife and/or children, or dependent relatives of such person, shall be exempt from all claims of the creditors of such person arising out of or based upon any obligation created after the effective date of this Code, whether or not the right to change the named beneficiary is reserved by or permitted to such person.” First. As Legg had become totally and permanently disabled before the adjudication, the company’s obligation to make benefit payments monthly thereafter was property of the bankrupt which passed to the trustee, unless specially exempted by the law of Tennessee, or by § 70 (a) of the Bankruptcy Act. It was not exempted by § 70 (a), because the obligation to pay disability benefits is not “ insurance”" } ]

[ { "docid": "18705109", "title": "", "text": "“Martin Act,” N.Y. Gen.Bus.Law §§ 339-a & 352-c (McKinney 1968 & 1984). 2. Motions Before the Court Defendant Alko now moves, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss each of Alko’s claims for failure to state a claim on which relief can be granted. Alternatively, it asks the Court to again dismiss the amended complaint for failure to plead fraud with particularity. Finally, Alko asks the Court to strike the plaintiff’s demand for punitive damages and attorney’s fees. II. Discussion A. The Primary Securities Law Violation 1. Motion to Dismiss for Failure to State a Claim “In order to state a claim for relief under Section 10(b) and Rule 10b-5, a plaintiff must allege that, in connection with the purchase or sale of a security, the defendant, acting with scienter, made a false material representation or omitted to disclose material information and that plaintiff’s reliance on defendant’s actions caused him injury.” Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985). “To establish causation, the plaintiff must show ‘both loss causation —that the misrepresentations or omissions caused the economic harm — and transaction causation — that the violations .in question caused the [plaintiff] to engage in the transaction in question.’ ” Bennett v. United States Trust Co., 770 F.2d 308, 313 (2d Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986) (quot ing Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975)) (emphasis in original). The defendant contends that the complaint does not allege (1) an actionable misrepresentation or omission, (2) reliance, or (3) loss causation. It also argues that the plaintiff’s damages are so speculative as to warrant dismissal of its Rule 10b-5 claim as a matter of law. a. Misrepresentation Alko’s contention that the amended complaint alleges no more than a refusal by Alko to negotiate with Whitbread is incorrect. In fact, the amended complaint alleges a series of false statements by Alko, each of which expressly or implicitly represented to Whitbread that it would eventually have" } ]

[ { "docid": "7704869", "title": "", "text": "recognized as forming the basis of a valid securities claim in a variety of contexts. E.g., Darrell v. Goodson, Parry, Manko & Costa, Inc., No. 78 Civ. 5945(LFM), slip op., 1980 WL 1392 (S.D.N.Y. April 11, 1980); Troyer v. Karcagi, supra, 476 F.Supp. at 1149. Accord In re Catanella and E.F. Hutton and Co. Securities Litigation, 583 F.Supp. 1388, 1413 (E.D.Pa.1984) (“Where a broker is given control of the client’s portfolio, the choice of a broker is tantamount to the choice of securities.”). Accordingly, the Court concludes that the fraud alleged in the complaint was in connection with purchases and sales of securities, within the meaning of section 10(b). c. The Causation Requirement To make out a claim under section 10(b), a plaintiff must establish both loss causation and transaction causation. Civil liability under section 10(b) requires “causation not merely in inducing the plaintiff to enter into a transaction or series of transactions, but causation of the actual loss suffered.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20 (2d Cir.) (citing cases), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1986). Accord, Bennett v. United States Trust Co., 770 F.2d 308, 313 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). Transaction causation focuses on whether the alleged fraud induced the plaintiff to buy the security, while loss causation looks at whether the fraud was responsible for the plaintiffs pecuniary injury. Transaction causation can be thought of as “but for” causation, or reliance. See, e.g., Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 n. 6 (2d Cir.1981); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 and n. 11 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). Where the complaint alleges a failure to disclose material facts, “positive proof of reliance is not a prerequisite to recovery.” Affiliated Ute Citizens v. United States, supra, 406 U.S. at 153-54, 92 S.Ct. at 1472, 31 L.Ed.2d 741 (1972). Rather, proof of materiality coupled with a duty to disclose establishes “causation in fact.” Id." }, { "docid": "8317145", "title": "", "text": "434, 74 L.Ed.2d 594 (1982). Hence, direct reliance is not a prerequisite because it is presumed that “an investor relies generally on the supposition that the market price is validly set and that no unsuspected fraud has affected the price.” Id. Where Seagoing has alleged numerous facts to establish that the Basses 13(d) filings were false and misleading, that the market price of Texaco stock was artificially inflated after the 13(d) filings, and where it further alleges that there was a concomitant drop in such price after Texaco’s announcement of the repurchase agreement of the Basses’ stock, plaintiff has sufficiently pleaded its fraud on the market theory. Moreover, as discussed above, Seagoing also pointed to various events prior to the Basses’ January 18, 1984 13(d) filing to negate the Basses’ stated purpose in their filing that their Texaco purchases were for mere investment. Such allegations of omissions or half-truths are sufficient to invoke the Xlte presumption and to withstand defendants’ motion for dismissal. 4. Loss Causation Defendants maintain that a “successful § 10(b) action requires proof of a causal relationship between defendants’ misrepresentations or omissions and the plaintiff’s losses.” (Defendants’ Memorandum in Support of Their Motion to Dismiss the Amended Complaint or, in the Alternative, to Stay the Action, or for Change of Venue, p. 34). Again, the point is not whether plaintiff will be ultimately successful in its 10(b) action, but whether or not it has adequately pleaded certain 10(b) elements such as causation. “The requirement of ‘loss causation’ derives from the common law tort concept of ‘proximate causation.’ ” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20 (2d Cir.1986), cert. denied sub nom. Arthur Andersen & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). “The generalization is that only the loss that might reasonably be expected to result from action or inaction in reliance on a fraudulent misrepresentation is legally, that is, proximately, caused by the misrepresentation.” Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.1980), cert. denied sub nom. Wood Walker & Co." }, { "docid": "14456246", "title": "", "text": "with” the sale of securities, not whether there was transaction causation. Second, in Bosio, plaintiffs claim was essentially one involving conversion, not securities fraud, and the alleged misrepresentation went merely to the mechanics of the sale and not to any inducement by defendants with respect to the investment purpose of the sale. By contrast, Connors alleges that the promised insurance was a strong inducement in getting him to purchase precious metals from IGBE and to continue participating in the Program. Specifically, he alleges that defendants’ participation in the scheme enabled IGBE to succeed in attracting customers and that defendants knew that the promise of insurance was being used as an inducement. In effect, plaintiff has presented a “but for” argument: “But for the insurance, I would not have purchased the ‘security.’ ” This showing is sufficient. See, e.g., Bennett, 770 F.2d at 314; Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930, 943 n. 23 (2d Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984). (2) Loss Causation Whether plaintiff has satisfied this prong of the causation requirement is more problematic, but the Court concludes that the complaint is adequate. This requirement, as the Second Circuit has explained, “derives from the common law concept of ‘proximate causation’ ” and “in effect requires that the damage complained of be one of the foreseeable consequences of the misrepresenation.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20-21 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 952, 107 S.Ct. 952 (1987) (quotations omitted). Based on the reasoning and the analogousness of the facts in Manufacturers and Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980), the Court concludes that plaintiff has adequately alleged loss causation. As in those two cases, plaintiff has asserted that defendants’ alleged misrepresentations induced him to participate in the Pro gram and that defendants knew that their misrepresentations were being relied upon. As in Manufacturers and Marbury, defendants’ misrepresentations went to the investment quality of the Program," }, { "docid": "4007235", "title": "", "text": "defendant’s misrepresentations not only caused the plaintiff to engage in the transaction in question, but also that they caused the harm suffered. Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988), vacated on other grounds and affd on reconsideration, Wilson v. Saintine Exploration and Drilling Corp., 872 F.2d 1124 (2d Cir.1989); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). While transaction causation requires only a “but for” allegation, see Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986), whether loss causation has been alleged turns upon a question of proximate cause: was the damage complained of a foreseeable result of the plaintiff's reliance on the fraudulent misrepresentation? Marburg Mgmt., Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.), cert. denied, Wood Walker & Co. v. Marburg Mgmt, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). The facts alleged in the complaint in the case at bar adequately allege loss causation. Weiss contends that he transferred stock in WPC to Richard Witteoff in reliance on the Wittcoffs’ misrepresentations concerning their future actions. The complaint alleges that “as a result of the ... misrepresentations and omissions of the Wittcoffs, after approximately August 1989 WPC was saddled with increased costs that eliminated profits.” Complaint 1132. Thus, Weiss’s loss — the devaluation of his own WPC stock — was clearly a proximate result of his reliance on defendants’ promises, since defendants’ failure to fulfill those promises foreseeably caused WPC’s financial condition to deteriorate. Defendants’ argument that loss causation has not been alleged because the alleged misrepresentations related to future actions rather than to present conditions is not persuasive. Channel Master Corp. v. Aluminum Ltd. Sales, 2 A.D.2d 933, 156 N.Y.S.2d 585 (3d Dep’t 1956), on which defendants heavily rely, is clearly distinguishable. For one thing, Channel Master was not a securities fraud case, but dealt with a contract to supply goods. Furthermore, although the court" }, { "docid": "14791831", "title": "", "text": "of the Offering Memorandum, of any reliance by the plaintiffs on the moving defendants’ reputation, or of trading by SGS on the basis of that reputation. Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 62 (2d Cir.1985); Dept. of Economic Dev., supra, 683 F.Supp. at 1478. The preliminary discussions and agreements could not have constituted the “loss causation” that is required in this Circuit. See Manufacturers Hanover Trust v. Drysdale Sec. Corp., 801 F.2d 13, 20 (2d Cir.1986), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930, 943 (2d Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984); Edwards & Hanly v. Wells Fargo Securities Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980). The losses claimed by plaintiffs were caused by their reliance on the fraudulent statements in the Offering Memorandum. The only way that those losses might have been “caused” by the alleged discussions and agreements of the moving defendants would be in a “but for” sense, and such “but for” causation is clearly insufficient to state a Section 10(b) claim. Chemical Bank, supra, 726 F.2d at 943. Additionally, in no sense could the remote pre-purchase activities have contributed to the required “transaction causation— that the violations in question caused the [plaintiff] to engage in the transaction in question.” Schlick v. Penn-Dixie Cement, 507 F.2d 374, 380 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). See also, Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988); Bennett v. United States Trust Co. of New York, 770 F.2d 308, 313 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). In short, the plaintiffs cannot state a claim for relief under Section 10(b). Summary judgment on those claims arising under Section 10(b) is therefore granted in favor of the moving defendants. 2. RICO Claims. Gill & Duffus raises a challenge to the sufficiency of the" }, { "docid": "8851572", "title": "", "text": "The Court also notes, in the context of reliance, that a plaintiff must allege that the act complained of caused the injury in the sense that the alleged section 10(b) violations caused the claimed economic loss. Manufacturers Hanover Trust v. Drysdale Sec. Corp., 801 F.2d 13, 20 (2d Cir.1986) (the necessary “loss causation” is “causation not merely in inducing the plaintiff to enter into a transaction ..., but causation of the actual loss suffered.”), cert, denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985). In observing that the “loss causation” requirement stems from notions of “proximate causation” in tort law, the Second Circuit has explained loss causation as requiring “that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover, supra, 801 F.2d at 20 (citations omitted). The alleged harm here is the amount owing on the promissory note allegedly signed by plaintiff to cover the investment in CSH-1. Plaintiff alleges that investment in CSH-1 would not have been possible if defendants had not misstated plaintiff’s assets and income on the relevant forms. The Court concludes that defendants could reasonably have foreseen that an investment of this type for someone in plaintiff's circumstances would naturally lead to the harm for which relief is now sought. Forging the investment forms and misstating the relevant information are the acts which placed plaintiff in the precarious position she has found herself. The Court thus concludes that loss causation has adequately been pleaded. II. Section 12(2) Claim Defendant argues that plaintiff's section 12(2) claim is time-barred because plaintiff filed the complaint more than one year after she should reasonably have known of the existence of her cause of action. Section 13 of the 1933 Act provides that [n]o action shall be maintained to enforce any liability created under ... section 12(2) [15 U.S.C. § 111 (2) ] unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise" }, { "docid": "16508111", "title": "", "text": "language contained in the PPMs does not shield Arthur Andersen from liability under section 10(b). The court also finds that similar cautionary language attached to the property valuations does not shield Blake and the other non-settling appraiser defendants — American Appraisal Associates, Inc. (“American Appraisal”), Coldwell Banker Commercial Real Estate Group, Inc. (“CB”), and Dixon & Friedman — from section 10(b) liability. 2. Causation Arthur Andersen next argues that it is not hable under section 10(b) because the plaintiffs have failed to properly allege that the projections caused their injury. The court disagrees. To state a claim under section 10(b), a plaintiff must allege that its reliance on the defendant’s statements caused its injury. Royal Am. Managers v. IRC Holding Corp., 885 F.2d at 1015; Gruber v. Prudential-Bache Securities, Inc., 679 F.Supp. 165, 175 (D.Conn.1987). The causation requirement is comprised of two elements: (1) transaction causation — that the defendant’s misrepresentations induced the plaintiffs to invest in the transactions; and (2) loss causation — that the economic harm suffered by the plaintiffs occurred as a result of the misrepresentations. See Citibank, N.A. v. K-H Corporation, 968 F.2d at 1494. Transaction and loss causation have been compared to the elements of causation required in tort law. See Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.) (citing Restatement (Second) of Torts, Sec. 548A (1977)), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Transaction causation parallels the requisite “but for” element in tort law: but for the misrepresentations, the plaintiffs would not have invested. Loss causation resembles the element of proximate cause “because, similar to proximate cause ... a plaintiff must prove that the damage suffered was a foreseeable consequence of the misrepresentation.” Citibank N.A. v. K-H Corp., 968 F.2d at 1495 (citing Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20-21 (2d Cir.1986)). a) Transaction Causation. For purposes of section 10(b), transaction causation amounts to an analysis of materiality. See Gruber v. Prudential-Bache Securities, 679 F.Supp. 165, 176 (D.Conn.1987) (“As long as the misrepresentations are material, transaction causation may be presumed.”). A" }, { "docid": "2526159", "title": "", "text": "the nature and value of the securities pledged as collateral, and should clearly, for reasons of policy and common sense, be within the ambit of the federal securities laws. 2. The Causation Requirement “In order to recover under Section 10(b), a plaintiff must establish that the misrepresentation complained of caused the injury suffered. To establish causation, the plaintiff must show ‘both loss causation — that the misrepresentations or omissions caused the economic harm — and transaction causation — that the violations in question caused the [plaintiff] to engage in the transaction in question.’ ” Bennett v. United States Trust Co. of New York, 770 F.2d 308, 313 (2d Cir.1985) (quoting Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.1974) (emphasis in original), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975)); see also Horwitz v. AGS Columbia Associates, 700 F.Supp. 712, 721 (S.D.N.Y.1988). Thus, the question is whether the loss suffered was a reasonably foreseeable result of the alleged fraud. Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20-21 (2d Cir.1986). The parties do not dispute that Citibank has adequately alleged the transaction causation requirement of Section 10(b) in the complaint. Transaction causation is generally referred to as “but for causation,” meaning that but for the misrepresentation or omission, the losses would not have occurred. Citibank alleges that Fruehauf and Kelsey-Hayes fraudulently misrepresented the amount which Fruehauf received as payment for the subsidiaries, by failing to disclose that it received a $7 million promissory note from Stoecker as part of the acquisition price. Complaint, HU 19-29. Citibank alleges that if it had been aware of Stoecker’s $7 million promissory note to Fruehauf, it would not have executed the secured credit agreement with GAIL. Complaint, UU 21, 25. As the Court must accept Citibank’s allegations as true in the context of a motion pursuant to Rule 12(b)(6), Citibank has adequately pled transaction causation. As to the loss causation, or proximate cause, requirement of Section 10(b), Frue-hauf and Kelsey-Hayes argue that Citi bank has not adequately pled that the alleged fraud caused GAIL’s default" }, { "docid": "18974433", "title": "", "text": "on the market to have “perform[ed] a substantial part of the valuation process performed by the investor in a face-to-face transaction. The market is acting as the unpaid agent of the investor, informing him that given all the information available to it, the value of the stock is worth the market price.” Basic, 485 U.S. at 244, 108 S.Ct. 978 (citation omitted); see DiRienzo v. Philip Services Corp., 294 F.3d 21, 33 (2d Cir.2002). Although the presumption is not absolute, at the pleading stage it satisfies plaintiffs’ burden of alleging transaction causation. See Basic, 485 U.S. at 247, 108 S.Ct. 978; In re Ames Dept. Stores Inc. Stock Litig., 991 F.2d 953, 967 (2d Cir.1993). Loss causation is akin to the concept of “proximate cause” in tort law, “meaning that in order for the plaintiff to recover it must prove the damages it suffered were a foreseeable consequence of the misrepresentation.” Suez Equity, 250 F.3d at 96 (citation omitted); see also Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 21 (2d Cir.1986). The Second Circuit has noted that “[a] foreseeability finding turns on fairness, policy, and ‘a rough sense of justice.’ ” AUSA Life Ins. Co. v. Ernst & Young, 206 F.3d 202, 217 (2d Cir.2000) (quoting Palsgraf v. Long Island R. Co., 248 N.Y. 339, 352, 162 N.E. 99 (1928)). Determining whether a loss was a foreseeable consequence of a particular defendant’s actions is, ultimately, a public policy question, which asks how far back along the causal chain should liability for the plaintiffs’ losses extend. Suez Equity, 250 F.3d at 96; AUSA Life Ins. Co., 206 F.3d at 210. In assessing loss causation allegations, courts ask “was the damage complained of a foreseeable result of the plaintiffs reliance on the fraudulent misrepresentation?” Weiss v. Wittcoff, 966 F.2d 109, 111 (2d Cir.1992) (citation omitted). If the allegations support an inference that a defendant could reasonably have foreseen that the misrepresentation pertained to an issue that would cause the eventual damage, loss causation will be considered adequately pleaded. Suez Equity, 250 F.3d at 98; Citibank, N.A. v. KH" }, { "docid": "2816774", "title": "", "text": "968 F.2d 1489, 1494 (2d Cir.1992) (1 Ob — 5 claim requires a showing of both transactional and loss causation). In a suit for failure to disclose the under-qualifications of a purchasing representative, the Second Circuit held that the omission caused the transaction because it induced the investors to buy the stock and caused the loss because it induced the investor to hold the stock as it declined in value. Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708-710 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Marbury is not applicable here because the undisclosed commissions could not have caused plaintiffs to hold their limited partnerships since there was no secondary market in which the limited partnerships could have been sold. See e.g., T.L. PPM at 16, 21, 30; Defs’ Ex. 1 subscription agreement ¶¶ 3(C)(d), 7. However, in two subsequent cases the Second Circuit changed the focus of loss causation analysis to whether the misstatement or omission goes to the quality of the investment. Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314 (2d Cir.1985); Manufactures Hanover Trust v. Drysdale Securities Corp., 801 F.2d 13, 22 (2d Cir.1986), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). Bennett and Manufactures Hanover Trust indicate that the existence of a secondary market is no longer necessary to establish that fraudulent omissions regarding purchasing representatives caused plaintiffs' loss. Indeed such was. the holding in a case almost identical to the one at bar. Schwartz v. Michaels, 1992 WL 184527, *10 (S.D.N.Y.1992) (J. Patterson). However, since this portion of the complaint does not comply with Rule 9(b), we need not reach this argument. .However, in Adler I the securities fraud allegations were only plead as predicate acts for the RICO claim. Nonetheless they were dismissed for their lack of specificity. .In those cases where Finkle was the purchasing representative for investors prior to 1983, it received no direct commissions. However, Fin-kle’s partners were compensated through an indirect ownership interest in Berg Harmon which gave them a pro-rata interest in the" }, { "docid": "12386878", "title": "", "text": "of the moving defendants except Eddie Antar. 4. Failure to Allege Injury Defendants claim that the complaint is insufficient under section 10(b) because plaintiffs fail to allege that they sold their shares at a loss attributable to the alleged misstatements. To allege injury under section 10(b), plaintiffs must plead both “transaction causation” — that the alleged misstatements caused them to purchase Crazy Eddie securities — and “loss causation” — that they suffered economic loss as a result. E.g., Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20 (2d Cir.1986), cert. denied sub nom. Arthur Andersen & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). Defendants contend that plaintiffs can only allege “loss causation” by claiming to have sold their shares at a loss. The economic losses cognizable under section 10(b) are not limited to the type of out-of-pocket loss envisioned by defendants. The complaint alleges that defendants made materially misleading statements and omissions that caused the price of Crazy Eddie stock to be higher than its true value. Consequently, plaintiffs paid more for the stock than it was worth. Their injury is the difference between the price paid and the true value of the stock when bought. See, e.g., In re Washington Pub. Power Supply Sys., 650 F.Supp. 1346, 1354 (W.D.Wash.1986), aff'd, 823 F.2d 1349 (9th Cir.1987) (plaintiff can recover “the amount paid over the true value.... [T]he injury occurs at the time of purchase”). Packer v. Yampol, 630 F.Supp. 1237 (S.D.N.Y.1986), cited by defendants, is not to the contrary. In that case plaintiffs alleged not only that misrepresentations had inflated the price of the securities they purchased, but that the misrepresentations continued through the date of the pleading. Plaintiffs were thus free to sell their securities at an inflated price and “bail out” of the company unscathed. In this case, plaintiffs allege that the truth has already come to light, making the inflated prices they paid a thing of the past. That allegation is sufficient to establish a section 10(b) injury. Not only is it unnecessary to allege" }, { "docid": "4007234", "title": "", "text": "9, 1990. According to the complaint, the Wittcoffs have continued to run WPC, exploiting it for their own gain. Weiss brought this suit in February 1991, alleging securities fraud in the issuance of WPC stock to Mark Witteoff. Specifically, Weiss alleges that in violation of § 10(b) of the Act, the Wittcoffs made certain misrepresentations to him, in reliance upon which Weiss issued fifty percent of WPC’s common stock to Mark Witt-eoff. As a further result of defendants’ fraudulent acts, Weiss claims, WPC has suffered severe losses, and the value of Weiss’s own holdings in WPC has been greatly reduced. Weiss also asserts pendent claims for fraud, breach of fiduciary duty and conversion. The district court stayed discovery pending decision on defendants’ motion to dismiss. On December 30, 1991, the court issued a one-page order dismissing the complaint “for failure to properly and sufficiently allege loss causation.” DISCUSSION A claim under § 10(b) of the Act requires a showing of both “transaction causation” and “loss causation.” In other words, the plaintiff must show that the defendant’s misrepresentations not only caused the plaintiff to engage in the transaction in question, but also that they caused the harm suffered. Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988), vacated on other grounds and affd on reconsideration, Wilson v. Saintine Exploration and Drilling Corp., 872 F.2d 1124 (2d Cir.1989); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). While transaction causation requires only a “but for” allegation, see Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986), whether loss causation has been alleged turns upon a question of proximate cause: was the damage complained of a foreseeable result of the plaintiff's reliance on the fraudulent misrepresentation? Marburg Mgmt., Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.), cert. denied, Wood Walker & Co. v. Marburg Mgmt, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). The" }, { "docid": "14456247", "title": "", "text": "has satisfied this prong of the causation requirement is more problematic, but the Court concludes that the complaint is adequate. This requirement, as the Second Circuit has explained, “derives from the common law concept of ‘proximate causation’ ” and “in effect requires that the damage complained of be one of the foreseeable consequences of the misrepresenation.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20-21 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 952, 107 S.Ct. 952 (1987) (quotations omitted). Based on the reasoning and the analogousness of the facts in Manufacturers and Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980), the Court concludes that plaintiff has adequately alleged loss causation. As in those two cases, plaintiff has asserted that defendants’ alleged misrepresentations induced him to participate in the Pro gram and that defendants knew that their misrepresentations were being relied upon. As in Manufacturers and Marbury, defendants’ misrepresentations went to the investment quality of the Program, although they did not go to the investment characteristic of the Program. As the Second Circuit noted in another case, the effect of the misrepresentation in Marbury was as follows: “[i]n essence, the stock in question did not have the value represented by the 'broker/ Thus, because the misrepresentation ... both induced the purchase and related to the stock’s value, it could be deemed causally related to the loss.” Bennett, 770 F.2d at 314. Admittedly, the court in Manufacturers and Marbury emphasized the fact that the plaintiffs in each case had had grave misgivings about their investments and were induced to invest anyway by the misrepresentations of the defendants, but the absence of any specific allegation with respect to this factor does not change the conclusion that plaintiff has satisfied the loss causation requirement under the analysis set forth in Manufacturers and Marbury. Furthermore, the more stringent tests set forth in Bennett, 770 F.2d at 313-14; Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61-62 (2d Cir.1985); and Chemical Bank, 726 F.2d" }, { "docid": "3846051", "title": "", "text": "proof “that the violations in question caused the [plaintiff] to engage in the transaction in question.” Grace, 228 F.3d at 45 (quoting Bennett v. United States Trust Co. of New York, 770 F.2d 308, 313 (2d Cir.1985)) (alteration in original). Transaction causation is also referred to as reliance. See Fellman v. Electro Optical Sys. Corp., No. 98 Civ. 6403 LBS, 2000 WL 489713, at *11 (S.D.N.Y. Apr. 25, 2000). Reliance is presumed where plain tiffs invoke, as here, the “fraud on the market” theory. Basic, Inc. v. Levinson, 485 U.S. 224, 245-47, 108 S.Ct. 978, 990-92, 99 L.Ed.2d 194 (1988). Under the fraud on the market theory, “in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.” Id. at 241, 108 S.Ct. at 989 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)). More important, under this theory, misrepresentations can defraud purchasers of stock even if the purchasers do not directly rely on the misrepresentations. Id. However, this presumption of reliance may be rebutted through “[a]ny showing that severs the link between the alleged misrepresentation and ... the price received (or paid) by the plaintiff,” because “the basis for finding that the fraud had been transmitted through market price would be gone.” Id. at 248, 108 S.Ct. at 992. Loss causation requires plaintiffs to prove that “the economic harm that [they] suffered occurred as a result of the alleged misrepresentations.” Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1495 (2d Cir.1992). See also AUSA Life Ins. Co. v. Ernst and Young, 206 F.3d 202, 216 (2d Cir.2000) (“We have consistently said that ‘loss causation in effect requires that the damage complained of be one of the foreseeable consequences of the misrepresentation.’ ”) (quoting Manufacturers Hanover Trust Co. v. Drysdale Secs. Corp., 801 F.2d 13, 20 (2d Cir.1986)). Defendants argue that there is no evidence that the misrepresentations challenged by plaintiffs affected Nortel’s stock price and that plaintiffs thus cannot prove loss causation. Decisions by the Second Circuit addressing loss causation fall into two" }, { "docid": "7704870", "title": "", "text": "cases), cert. denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1986). Accord, Bennett v. United States Trust Co., 770 F.2d 308, 313 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). Transaction causation focuses on whether the alleged fraud induced the plaintiff to buy the security, while loss causation looks at whether the fraud was responsible for the plaintiffs pecuniary injury. Transaction causation can be thought of as “but for” causation, or reliance. See, e.g., Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 n. 6 (2d Cir.1981); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 and n. 11 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). Where the complaint alleges a failure to disclose material facts, “positive proof of reliance is not a prerequisite to recovery.” Affiliated Ute Citizens v. United States, supra, 406 U.S. at 153-54, 92 S.Ct. at 1472, 31 L.Ed.2d 741 (1972). Rather, proof of materiality coupled with a duty to disclose establishes “causation in fact.” Id. Therefore, in an omission case, transaction causation, which is actually reliance, can be inferred from materiality. See generally Madison Consultants v. Federal Deposit Ins. Corp., 710 F.2d 57, 65 n. 6 (2d Cir.1983); In re Catanella and E.F. Hutton and Co. Securities Litigation, supra, 583 F.Supp. at 1414-15. There can be no question under the applicable law that plaintiffs in the instant case have adequately pleaded the causation element of their 10(b) claim. The alleged omissions were clearly material. The Court can properly infer that if Ossorio had disclosed his scheme to use plaintiffs’ funds for the benefit of himself and Drys-dale, plaintiffs would never have permitted the securities transactions set forth above. Furthermore, plaintiffs have alleged that defendants were involved directly in the process by which their funds were diverted. See In re Investors Funding Corp., 566 F.Supp. 193, 202 (S.D.N.Y.1983). The damage plaintiffs complain of must be considered a foreseeable consequence of the alleged fraud. See Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., supra, 801 F.2d at 21; Marbury Mgmt., Inc. v." }, { "docid": "6436009", "title": "", "text": "88 L.Ed.2d 776 (1986). “In addition, to the significance of the misrepresentations in the chain of causation, ‘loss causation’ requires that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 21 (2d Cir.1986), cert. denied sub nom. Arthur Anderson & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); see also Oleck v. Fisher, [1979 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 96,898 at 95,702-03, 1979 WL 1217 (S.D.N.Y.1979), affirmed, 623 F.2d 791 (2d Cir.1980). From these authorities Block concludes that until the tax disallowance he could not attribute any loss to misrepresentations of Touche. However, Block does not allege any fraudulent concealment by Touche, and in the absence of such an allegation, the reasoning in O’Brien v. National Property Analysts Partners, 719 F.Supp. 222, 232 (S.D.N.Y.1989) is applicable. There, the Honorable Peter K. Leisure held that knowledge of facts that lead to an adverse IRS determination — as opposed to the later receipt of a notice to that effect — triggers the running of the statute of limitations: Where an offering memorandum discloses the transactions that subsequently lead to IRS challenges, plaintiffs’ efforts to rely on an IRS report as the source of discovery of fraud are insufficient. 719 F.Supp. at 232 n. 11. In General Builders Supply Co. v. River Hill Coal Venture, 796 F.2d 8 (1st Cir.1986), investors in a coal mining limited partnership brought suit against the promoter, law firm and financial advisor involved in the venture, as well as the accounting firm that reported on a pro forma financial analysis, claiming that they were defrauded because the management of the venture never intended to make a profit, a fact allegedly never revealed to them, thus negating the possibility of their receiving tax benefits. The district court dismissed the complaint, holding that plaintiffs had recognized “storm warnings” of the alleged fraud long before their receipt of IRS notices, and thus concluded that “the statute began to run prior to receipt by the investors of their disallowance" }, { "docid": "8317146", "title": "", "text": "proof of a causal relationship between defendants’ misrepresentations or omissions and the plaintiff’s losses.” (Defendants’ Memorandum in Support of Their Motion to Dismiss the Amended Complaint or, in the Alternative, to Stay the Action, or for Change of Venue, p. 34). Again, the point is not whether plaintiff will be ultimately successful in its 10(b) action, but whether or not it has adequately pleaded certain 10(b) elements such as causation. “The requirement of ‘loss causation’ derives from the common law tort concept of ‘proximate causation.’ ” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 20 (2d Cir.1986), cert. denied sub nom. Arthur Andersen & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). “The generalization is that only the loss that might reasonably be expected to result from action or inaction in reliance on a fraudulent misrepresentation is legally, that is, proximately, caused by the misrepresentation.” Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.1980), cert. denied sub nom. Wood Walker & Co. v. Marbury Management, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Loss causation “in effect requires that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Id. In its complaint, Seagoing made numerous allegations — that prior to the Basses 13(d) filings on January 18, 1984, commencing in May 1982, the Basses initiated discussions with Texaco’s chairman and other directors regarding a buy-back plan by Texaco of the stock held by the Basses. The complaint further alleges that despite their true intention to have Texaco buy back its stock at a “price above the market price,” (amended complaint, 117(c)), as reflected in their prior negotiations with Texaco, the Basses stated in their 13(d) filings only that their purchases were for investment purposes. Seagoing claims that if the Basses had revealed their true intention, to effect a Texaco repurchase, the price of Texaco stock would not have artificially risen. Plaintiff’s purchase of Texaco stock was made with the belief that the market price had not been manipulated, and that" }, { "docid": "6436008", "title": "", "text": "(2d Cir.1973); Dolmetta v. Uintah National Corp., 712 F.2d 15, 19 (2d Cir.1983). Here, plaintiff contends, investors did not suffer a loss attributable to Touche until the IRS disallowed their tax deductions in 1987, citing Zola v. Gordon, 685 F.Supp. 354 (S.D.N.Y.1988), as support for the proposition that the statute of limitations for a § 10(b) claim arising from investment in a tax shelter limited partnership accrues upon receipt of the IRS disallowance notice, as well as Bauman v. Centex Corp., 611 F.2d 1115, 1119 (5th Cir.1980), which dealt with the date of accrual of an action against an accountant in connection with the preparation of a tax return as the date of disallowance. To buttress his position, Block notes that 10b-5 claims require the plaintiff to establish both transaction and loss causation. Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); Bennett v. U.S. Trust Company, 770 F.2d 308, 313 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986). “In addition, to the significance of the misrepresentations in the chain of causation, ‘loss causation’ requires that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13, 21 (2d Cir.1986), cert. denied sub nom. Arthur Anderson & Co. v. Manufacturers Hanover Trust Co., 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); see also Oleck v. Fisher, [1979 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 96,898 at 95,702-03, 1979 WL 1217 (S.D.N.Y.1979), affirmed, 623 F.2d 791 (2d Cir.1980). From these authorities Block concludes that until the tax disallowance he could not attribute any loss to misrepresentations of Touche. However, Block does not allege any fraudulent concealment by Touche, and in the absence of such an allegation, the reasoning in O’Brien v. National Property Analysts Partners, 719 F.Supp. 222, 232 (S.D.N.Y.1989) is applicable. There, the Honorable Peter K. Leisure held that knowledge of facts that lead to an adverse IRS determination — as opposed to the later receipt of" }, { "docid": "8851571", "title": "", "text": "at 198. Even if the account in the present case were not discretionary, since it appears that consent by plaintiff was necessary prior to investment, the knowing forgery and alteration of documents by defendants has the same effect as the purchase of an unsuitable security in a discretionary account. In both cases, defendants have acted with scienter, a principal requirement, see id. (noting that scienter is the chief precondition of liability, not the recommendation), and in both situations the broker is acting on behalf or in the stead of the investor in a fraudulent fashion. Similarly, in Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231 (S.D.N.Y.1983), the Court stated that plaintiff did not need to allege reliance on defendant’s deliberate misstatements in a Discretionary Information Statement concerning plaintiff’s investment objectives “since these statements were designed not to mislead [plaintiff] but to facilitate [defendant’s] fraudulent conduct.” 567 F.Supp. at 1236. In the present case, as well, the alleged misstatements in plaintiff’s investor questionnaire were designed not to mislead plaintiff but to advance defendants’ alleged fraudulent scheme. The Court also notes, in the context of reliance, that a plaintiff must allege that the act complained of caused the injury in the sense that the alleged section 10(b) violations caused the claimed economic loss. Manufacturers Hanover Trust v. Drysdale Sec. Corp., 801 F.2d 13, 20 (2d Cir.1986) (the necessary “loss causation” is “causation not merely in inducing the plaintiff to enter into a transaction ..., but causation of the actual loss suffered.”), cert, denied, 479 U.S. 1066, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985). In observing that the “loss causation” requirement stems from notions of “proximate causation” in tort law, the Second Circuit has explained loss causation as requiring “that the damage complained of be one of the foreseeable consequences of the misrepresentation.” Manufacturers Hanover, supra, 801 F.2d at 20 (citations omitted). The alleged harm here is the amount owing on the promissory note allegedly signed by plaintiff to cover the investment in CSH-1. Plaintiff alleges that investment in" }, { "docid": "16508112", "title": "", "text": "result of the misrepresentations. See Citibank, N.A. v. K-H Corporation, 968 F.2d at 1494. Transaction and loss causation have been compared to the elements of causation required in tort law. See Marbury Management, Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.) (citing Restatement (Second) of Torts, Sec. 548A (1977)), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Transaction causation parallels the requisite “but for” element in tort law: but for the misrepresentations, the plaintiffs would not have invested. Loss causation resembles the element of proximate cause “because, similar to proximate cause ... a plaintiff must prove that the damage suffered was a foreseeable consequence of the misrepresentation.” Citibank N.A. v. K-H Corp., 968 F.2d at 1495 (citing Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13, 20-21 (2d Cir.1986)). a) Transaction Causation. For purposes of section 10(b), transaction causation amounts to an analysis of materiality. See Gruber v. Prudential-Bache Securities, 679 F.Supp. 165, 176 (D.Conn.1987) (“As long as the misrepresentations are material, transaction causation may be presumed.”). A misrepresentation is “material” when it would have misled a reasonable investor about the nature of the investment. I. Meyer Pincus & Associates v. Oppenheimer & Co., Inc., 936 F.2d at 761. This is a liberal standard and “a complaint may not properly be dismissed pursuant to Rule 12(b)(6) (or even pursuant to Rule 56) on the ground that the alleged misstatements or omissions are not material unless they are so obviously unimportant to a reasonable investor that reasonable minds could not differ on the question of their importance.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). In the instant case, the projections clearly fall within this liberal definition of materiality. Therefore, transaction causation may be presumed. b) Loss Causation. With respect to loss causation, it is of course insufficient for a plaintiff to allege that the defendant incorrectly predicted the future, or that some unforeseen event occurred which rendered the investment worthless. See Friedman v. Mohasco Corp., 929 F.2d 77, 79 (2d Cir.1991); Schwartz v. Novo Industri, A/S, 658 F.Supp. 795, 798 (S.D.N.Y.1987). However," } ]

[ { "docid": "8050269", "title": "", "text": "in the federal district court. It is well-established that an express waiver of sovereign immunity must be unequivocal. Coll. Sav. Bank, 527 U.S. at 680, 119 S.Ct. 2219; Pennhurst State Sell. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 88 L.Ed. 1121 (1944). After College Savings Bank, it is clear that any waiver of sovereign immunity by a state must be express and voluntary, and cannot be implied or constructive. 527 U.S. at 682, 119 S.Ct. 2219 (expressly overruling Parden). The Court also emphasized that the test for finding an express waiver is a stringent one. Coll. Sav. Bank, 527 U.S. at 682, 119 S.Ct. 2219. Under this standard we cannot find a general waiver of immunity with respect to Lanham Act and patent claims. State Contracting also claims that Florida has waived its sovereign immunity by defending this litigation, both on its own behalf and as the representative of the alleged private infringers. It is quite clear that those activities do not amount to a waiver. In Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n. 18, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982), for example, the Supreme Court held that “[t]he fact that the State appeared and offered defenses' on the merits does not foreclose consideration of the Eleventh Amendment issue.” See also Allinder v. Ohio, 808 F.2d 1180, 1184 (6th Cir.1987) (holding that the State of Ohio did not waive immunity by generally defending itself when it raised defenses in addition to sovereign immunity). In its answer to the amended complaint, the State of Florida counterclaimed for a declaratory judgment of non-infringement and invalidity of the '288 and '455 patents. State Contracting next asserts that Florida has waived immunity as to the patent claims by filing the counterclaim and by litigating the counterclaim. The question whether the filing of a counterclaim constitutes a waiver of immunity as to the patent claims is substantial, for some courts have suggested that the filing of" } ]

[ { "docid": "22575042", "title": "", "text": "immunity has attributes of both subject-matter jurisdiction and personal jurisdiction. The text of the Eleventh Amendment suggests a limitation on subject-matter jurisdiction: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. See also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (stating that the “greater significance [of the Eleventh Amendment] lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III”). Like other issues relating to subject-matter jurisdiction, Eleventh Amendment immunity may be asserted at any time in litigation. Edelman, 415 U.S. at 678, 94 S.Ct. 1347 (stating that “the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court”); In re Creative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1144 (4th Cir.1997) (considering an Eleventh Amendment defense raised for the first time on appeal). Like personal jurisdiction, however, Eleventh Amendment immunity need not be raised by a court sua sponte, Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), and may be waived by the State altogether, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (stating that “if a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action”); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883) (characterizing the State’s sovereign immunity as “a personal privilege which it may waive at pleasure”). For example, the Court has consistently held that a State’s voluntary appearance in federal court effects a waiver of Eleventh Amendment immunity. Lapides v. Board of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806" }, { "docid": "17019899", "title": "", "text": "interference and participate in an adversarial proceeding, for if it had not taken this action it would have lost its rightful patent to Vas-Cath. The University points out that although the PTO could have and should have initiated this interference while the applications of both parties were pending, the PTO did not do so. Thus the University argues that its initiation of the interference was not a voluntary act, but an act of necessity compelled by the PTO’s grant of a patent to the junior applicant. The University states that its position is supported by the Court’s holding in College Savings Bank that “where the constitutionally guaranteed protection of the State’s sovereign immunity is involved, the point of coercion is automatically passed-and the voluntariness of waiver destroyed-when what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity.” 527 U.S. at 687, 119 S.Ct. 2219. However, the question in this case is not whether the University voluntarily participated in the PTO interference, but whether the University can now bar the appeal of the PTO’s decision in favor of the University. This argument raises issues not of federalism, but of litigation tactics, for it is undisputed that the PTO decision cannot be reviewed in state court. And it is undisputed that no recourse was made to the Eleventh Amendment during the PTO proceeding. As the Ramsey court pointed out: The state voluntarily put itself in the position of being a party in a federal administrative forum whose actions would be reviewed in federal court. The state’s actions expressed a clear choice to submit its rights for adjudication in the federal courts. To permit the state to reverse course would contravene the reasons for the doctrine of waiver by litigation conduct recognized by Lapides 366 F.3d at 16-17. We need not consider whether the University intended to gain an unfair tactical advantage, for “[mjotives are difficult to evaluate, while jurisdictional rules should be clear.” Lapides, 535 U.S. at 621, 122 S.Ct. 1640. We have concluded that when the University initiated and participated in the interference," }, { "docid": "22575043", "title": "", "text": "Washington, D.C., Inc., 119 F.3d 1140, 1144 (4th Cir.1997) (considering an Eleventh Amendment defense raised for the first time on appeal). Like personal jurisdiction, however, Eleventh Amendment immunity need not be raised by a court sua sponte, Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), and may be waived by the State altogether, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (stating that “if a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action”); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883) (characterizing the State’s sovereign immunity as “a personal privilege which it may waive at pleasure”). For example, the Court has consistently held that a State’s voluntary appearance in federal court effects a waiver of Eleventh Amendment immunity. Lapides v. Board of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947); Gunter v. Atlantic Coast Line R.R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906); Clark, 108 U.S. at 447, 2 S.Ct. 878. Given the potential for waiver, the Court has stated that the Eleventh Amendment “does not automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so.” Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (“The Amendment, in other words, enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary’s subject-matter jurisdiction.”). The Court’s treatment of an Eleventh Amendment question in Calderon v. Ashmus, 523 U.S. 740, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998), further indicates that Eleventh Amendment immunity does not limit a federal" }, { "docid": "3772642", "title": "", "text": "designed to alter the federal-state balance.” College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). Second, a State (or in this case, a county) may waive its sovereign immunity by consenting to suit. Id. (citing Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 27 L.Ed. 780 (1883)). The Supreme Court held in Lapides v. Board of Regents of the University System of Georgia that when a State voluntarily invokes the jurisdiction of the federal courts, that entity cannot then claim immunity from suit. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The rule derived from that case is clear: “removal is a form of voluntary invocation of a federal court’s jurisdiction sufficient to waive the State’s otherwise valid objection to litigation of a matter (here of state law) in a federal forum.” Id. at 624, 122 S.Ct. 1640. The decision in Lapides was limited. Specifically, it dealt with a situation where a State had waived immunity from state-court proceedings for state-law claims but nonetheless claimed Eleventh Amendment immunity once it had removed the case to federal court. Id. at 616, 122 S.Ct. 1640. Nevertheless, the Fifth Circuit has interpreted Lapides to extend waiver of immunity “to any private suit which a state removes to federal court” and not just cases involving only state or only federal claims. See Meyers ex. rel. Benzing v. Texas, 410 F.3d 236, 242-43 (5th Cir.2005), cert. denied, Texas v. Meyers, — U.S. -, 127 S.Ct. 2126, 167 L.Ed.2d 862 (2007). Defendant argues that “Defendant has not claimed Eleventh Amendment immunity” (Def.’s Reply ¶ 3). However, there is no other form of immunity that Defendants can claim, since any immunity held by the State or its subdivisions is indistinguishable from that immunity recognized under the Eleventh Amendment. See id. at 251 (citing Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636" }, { "docid": "17019895", "title": "", "text": "individuals or corporations.” Op. at 9. However, here the University did not simply procure a patent through the routine of ex parte examination, but requested the PTO to conduct litigation-type activity, obtaining a favorable agency ruling for which the statute authorizes judicial review. The principles of federalism are not designed for tactical advantage; the Lapides Court recognized the possibility of a state’s “selective use of ‘immunity’ to achieve litigation advantages,” 535 U.S. at 620, 122 S.Ct. 1640 (citing Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 393, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (Kennedy, J., concurring)). The Court stated that “the Court has made clear in general that ‘where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.’ ” Id. at 619 (quoting Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906)) (emphasis in original). The Court in Lapides recognized that there is a distinction between an express waiver of immunity, and waiver by actions taken by the state. See 535 U.S. at 620, 122 S.Ct. 1640 (waiver based on action of removal to federal court). It has long been recognized that a state’s voluntary entry into federal court serves to waive state immunity from federal adjudication of that claim. Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883). The Lapides Court observed that inferred waiver of the Eleventh Amendment “in the litigation context rests upon the Amendment’s presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State’s actual preference or desire.” 535 U.S. at 620, 122 S.Ct. 1640. The University here invoked the statutory system of agency adjudication of a contested claim to patent property. Unlike the situation in College Savings Bank, 527 U.S. at 685, 119 S.Ct. 2219, this is not “a suit by an individual against an unconsent-ing State,” but review of an agency" }, { "docid": "2845340", "title": "", "text": "immunity. Likewise, Ficca and Richer are entitled to Eleventh Amendment immunity for the claims against them in their official capacities. However, a State’s immunity from suit is not absolute. See Lombardo v. Pa., Dep’t of Public Welfare, 540 F.3d 190, 195 (3d Cir.2008). Congress may abrogate a State’s sovereign immunity in enforcing the Fourteenth Amendment, a State may consent to suit by making a clear declaration that it intends to submit itself to federal court jurisdiction, or a state may waive its immunity from suit by invoking federal court jurisdiction voluntarily. Id. at 195-96 (citations omitted). Here, Borrell asserts that Bloomsburg and Ficca in her official capacity waived Eleventh Amendment immunity by having its lawyers enter appearances, (Docs. 5; 8; 9), and by filing a motion to continue a hearing on Borrell’s request for a preliminary injunction. (Doc. 6.) Borrell cites Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883) to support her claim that Eleventh Amendment immunity has been waived in this action. In Clark, “the state of Rhode Island appeared in the cause and presented and prosecuted a claim to the fund in controversy, and thereby made itself a party to the litigation to the full extent required for its complete determination.” Id. at 448, 2 S.Ct. 878. The Supreme Court and the Third Circuit have interpreted Clark as holding that a State’s voluntary appearance in federal court amounts to a waiver of its Eleventh Amendment immunity. See, e.g., Lapides v. Board of Regents of the University of System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (stating in reference to Clark “that more than a century ago this Court indicated that a State’s voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity.”); Lombardo, 540 F.3d at 196 (Clark held that a State’s voluntary intervention in an action in federal court to assert its own claim constituted waiver of its Eleventh Amendment immunity). The Third Circuit has indicated that courts should examine the extent to which a State has participated in the lawsuit and whether" }, { "docid": "2845341", "title": "", "text": "appeared in the cause and presented and prosecuted a claim to the fund in controversy, and thereby made itself a party to the litigation to the full extent required for its complete determination.” Id. at 448, 2 S.Ct. 878. The Supreme Court and the Third Circuit have interpreted Clark as holding that a State’s voluntary appearance in federal court amounts to a waiver of its Eleventh Amendment immunity. See, e.g., Lapides v. Board of Regents of the University of System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (stating in reference to Clark “that more than a century ago this Court indicated that a State’s voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity.”); Lombardo, 540 F.3d at 196 (Clark held that a State’s voluntary intervention in an action in federal court to assert its own claim constituted waiver of its Eleventh Amendment immunity). The Third Circuit has indicated that courts should examine the extent to which a State has participated in the lawsuit and whether it has defended the case on the merits. See Coll. Sav. Bank v. Fl. Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir.1997) (citations omitted). Significantly, immunity “is an issue that may be raised at any time during the pendency of the case,” and “merely because a state appears and offers defenses on the merits of the case [] does not automatically waive Eleventh Amendment immunity.” Id. (citing Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n. 18, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982)). In the instant case, Bloomsburg and Ficca have not waived their Eleventh Amendment immunity. The action was initiated in federal court by Borrell. Defendants appeared only to defend this action, and they raised sovereign immunity at the earliest stages of this litigation. Furthermore, the conduct that Borrell claims amounts to a waiver of immunity, the entry of appearance by Defendants’ attorneys and filing a motion to continue a preliminary injunction hearing, do not sufficiently demonstrate a waiver of Eleventh Amendment immunity. Here, Defendants’ presence" }, { "docid": "17019886", "title": "", "text": "of the University of Missouri to the constitutional immunity of the state is not disputed. Mo. Const. Article IX, § 9(a); Mo.Rev.Stat. § 172.020 (2000). Issues of Eleventh Amendment immunity receive plenary appellate review. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dep’t of Bus. Regulation of Florida, 496 U.S. 18, 30, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 348, 4 L.Ed. 97 (1816); Xechem Int’l, Inc. v. Univ. of Texas M.D. Anderson Cancer Center, 382 F.3d 1324, 1326-27 (Fed.Cir.2004). A The district court held that since there was not a waiver of immunity by the University, Vas-Cath’s suit must be dismissed on Eleventh Amendment grounds. The court relied on Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir.1994), wherein the court addressed the question of whether participation in contested proceedings before the Interior Board of Indian Appeals constituted a waiver by the winning tribe of tribal immunity as to the ensuing appeal by the losing tribe. The court held that the prevailing tribe had not waived its immunity as to the subsequent court action, stating that the Quinault Tribe’s participation in the administrative proceeding, which it had not initiated, was not “the express and unequivocal waiver of tribal immunity that we require in this circuit.” Id. at 1460. By analogy, the Missouri district court held that the University had not waived its immunity as to the subsequent appeal by Vas-Cath of the PTO decision. Vas-Cath points to factual differences from the Quileute case and argues that Supreme Court precedent, applied to the facts of this case, indeed supports waiver. Vas-Cath stresses that the interference contest in the PTO was conducted at the University’s request, that the University fully participated in the PTO proceeding and voluntarily produced state witnesses and documents, that the result was to deprive Vas-Cath of its property, and that no Eleventh Amendment immunity was asserted by the University at any stage of that proceeding. Vas-Cath argues that any immunity was clearly and unequivocally waived when the University provoked and successfully litigated the interference contest, and" }, { "docid": "307324", "title": "", "text": "which it would have been immune in its own courts. See id. at 617-18, 122 S.Ct. 1640 (stating that the Court was not addressing “the scope of waiver by removal in a situation where the State’s underlying sovereign immunity from suit has not been waived or abrogated in state court”). To rely exclusively on Lapides for the conclusion that North Carolina waived its sovereign immunity by voluntarily removing an action from which it would have been immune in its own courts fails to take into account that La-pides dealt with the availability of the narrow immunity provided by the Eleventh Amendment upon removal of “state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings,” id. at 617, 122 S.Ct. 1640, not the portability of sovereign immunity more generally. Nevertheless, the principles animating Lapides shed light on the issue we resolve today. As a basis for its holding, the Lapides Court first examined decisions in which waivers of Eleventh Amendment immunity were found to be effected by a state’s voluntary entry into litigation. See Gardner v. New Jersey, 329 U.S. 565, 573-74, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (holding that when a state files a claim in bankruptcy court “it waives any immunity which it otherwise might have had respecting the adjudication of the claim”); Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284-85, 289, 26 S.Ct. 252, 50 L.Ed. 477 (1906) (holding that state participation in tax collection litigation waived Eleventh Amendment immunity); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883) (holding Eleventh Amendment immunity waived “by the voluntary appearance of the state in intervening as a claimant of the fund in court”). These cases, the Court explained, stood for the general principle that “ ‘where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.’ ” Lapides, 535 U.S. at 619, 122 S.Ct. 1640 (quoting Gunter," }, { "docid": "307325", "title": "", "text": "into litigation. See Gardner v. New Jersey, 329 U.S. 565, 573-74, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (holding that when a state files a claim in bankruptcy court “it waives any immunity which it otherwise might have had respecting the adjudication of the claim”); Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284-85, 289, 26 S.Ct. 252, 50 L.Ed. 477 (1906) (holding that state participation in tax collection litigation waived Eleventh Amendment immunity); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883) (holding Eleventh Amendment immunity waived “by the voluntary appearance of the state in intervening as a claimant of the fund in court”). These cases, the Court explained, stood for the general principle that “ ‘where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.’ ” Lapides, 535 U.S. at 619, 122 S.Ct. 1640 (quoting Gunter, 200 U.S. at 284, 26 S.Ct. 252). Having established this general principle, the Court next acknowledged that unlike the state defendants in Gardner, Gunter, and Clark, Georgia “was brought involuntarily into the case as a defendant in the original state-court proceedings.” Id. at 620, 122 S.Ct. 1640. However, the Court noted, Georgia “then voluntarily agreed to remove the case to federal court. In doing so, it voluntarily invoked the federal court’s jurisdiction.” Id. (citations omitted). The Court was thus faced with determining whether Georgia’s actions fell within the general rule of Gardner, Gunter, and Clark, even though Georgia’s original entry into litigation had been involuntary. See id. (“[Ujnless there is something special about removal or about this case, the general legal principle requiring waiver ought to apply.”). The Court concluded that Georgia’s decision to remove the action triggered the general rule that when a state voluntarily becomes a party to a cause, it cannot then invoke Eleventh Amendment immunity to avoid the litigation. See id. The reasons given by the Court in reaching this conclusion" }, { "docid": "23258541", "title": "", "text": "Lapides v. Bd. of Regents, 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); see generally Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.” (internal citations and quotations omitted)). Nonetheless, the State contends that removal forces a state to appear against its will in the court of another sovereign, and that sovereign.immunity broadly protects “the states’ litigation choices.” It is long-settled, though, that “[a]lthough a State may not be sued without its consent, such immunity is a privilege which may be waived,” Gunter v. Atl. C.L.R. Co., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906), “by consenting to suit.” Coll. Sav. Bank, 527 U.S. at 670, 119 S.Ct. 2219(citing Clark v. Barnard, 108 U.S. 436, 447-448, 2 S.Ct. 878, 27 L.Ed. 780(state’s voluntary appearance in federal court avoids sovereign immunity inquiry)). “[Hjenee where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.” Gunter, 200 U.S. at 284, 26 S.Ct. 252(finding waiver where state sues in federal court). While California’s hope was to avoid the federal forum, it voluntarily appeared in state court to press its claims against the companies, who predictably sought removal to what they perceived to be a more favorable forum for the adjudication of claims involving federal law. Wáiver by litigation conduct “rests upon the Amendment’s presumed recognition of-the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State’s actual preference or desire, which might, after all, favor selective use of ‘immunity’ to achieve litigation advantages.” Lapides, 535 U.S. at 620, 122 S.Ct. 1640 (citing Wis. Dep’t. of" }, { "docid": "17019896", "title": "", "text": "original). The Court in Lapides recognized that there is a distinction between an express waiver of immunity, and waiver by actions taken by the state. See 535 U.S. at 620, 122 S.Ct. 1640 (waiver based on action of removal to federal court). It has long been recognized that a state’s voluntary entry into federal court serves to waive state immunity from federal adjudication of that claim. Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883). The Lapides Court observed that inferred waiver of the Eleventh Amendment “in the litigation context rests upon the Amendment’s presumed recognition of the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a State’s actual preference or desire.” 535 U.S. at 620, 122 S.Ct. 1640. The University here invoked the statutory system of agency adjudication of a contested claim to patent property. Unlike the situation in College Savings Bank, 527 U.S. at 685, 119 S.Ct. 2219, this is not “a suit by an individual against an unconsent-ing State,” but review of an agency adjudication to which the state consented in full adversary proceedings including testimony of state employees and evidence of state documents. In New Hampshire v. Ramsey, 366 F.3d 1 (1st Cir.2004) the court held that when the state voluntarily participated in a federal administrative forum whose action would be reviewed in federal court, the state waived its immunity from that federal court review. In Ramsey the court found waiver because the state gained advantage from its voluntary participation in the federal administrative forum. Id. at 16. We agree that this result, applied to the factual situation now presented, is within constitutional principles. The University argues that Xechem supports its position. In Xechem a private party filed suit against a state university in federal court to change the inventorship of university-owned patents that resulted from a joint research project; the university did not consent to the suit and the Federal Circuit affirmed that the Eleventh Amendment bars the suit. 382 F.3d at 1332. However, the university in Xechem did not request the adjudication, did not initiate and" }, { "docid": "13802216", "title": "", "text": "La-pides’s federal-law claims against the university officials but that the board had waived its Eleventh Amendment immunity by removing the case from state to federal court. Id. at 617, 122 S.Ct. 1640. The board appealed the district court’s Eleventh Amendment immunity ruling, and the Court of Appeals for the Eleventh Circuit reversed. 251 F.3d 1372 (11th Cir.2001). The Supreme Court granted certiorari and reversed, concluding that the State’s action of voluntarily agreeing to remove the case to federal court constituted a form of voluntary invocation of the federal court’s jurisdiction and a waiver of its Eleventh Amendment immunity. Lapides, 535 U.S. at 620, 624, 122 S.Ct. 1640. The Court added, however, that because Lapides had not stated a valid federal claim against the state, its decision did not address whether or how removal would affect federal-law claims or claims in respect to which the state’s underlying sovereign immunity had not been waived or abrogated in state court. Id. at 617, 122 S.Ct. 1640. Nonetheless, the Court concluded that the question that prompted it to grant certiorari, “whether a state waives its Eleventh Amendment immunity by its affirmative litigation conduct when it removes a case to federal court,” was not moot, because Lapides’s state-law tort claims remained pending in federal district court. Id. In view of the differences of opinion among the circuit courts on the certiorari issue, the Court decided to answer the question. Id. 1. Although the Supreme Court in Lapides circumspectly did not address any issue unnecessary to its decision, we believe that Lapides’s interpretation of the voluntary invocation principle, as including the waiver-by-removal rule, applies generally to any private suit which a state removes to federal court. There is no evident basis in law or judicial administration for severely limiting those general principles, or Lapides’s substantial overruling of Ford Motor Co. v. Dep’t of Treasury of State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), to a small sub-set of federal cases including only state-law claims in respect to which a state has waived immunity therefrom in state court. Moreover, there are many" }, { "docid": "17019889", "title": "", "text": "527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) the Court held that Congress does not have authority to abrogate Eleventh Amendment immunity with respect to patent infringement by the states, for “Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations,” id. at 640, 119 S.Ct. 2199, and that the provisions of the Patent Remedy Act are unconstitutional as out of proportion to the supposed remedial object. In the companion case, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) the Court considered state immunity in the context of trademark infringement and explained: Nor do we think that the constitutionally grounded principle of state sovereign immunity is any less robust where, as here, the asserted basis for constructive waiver is conduct that the State realistically could choose to abandon, that is undertaken for profit, that is traditionally performed by private citizens and corporations, and that otherwise resembles the behavior of “market participants.” Id. at 684, 119 S.Ct. 2219. This court, applying these principles in Xechem, 382 F.3d at 1332, held that absent a sufficient showing of lack of remedy under state law, suit against a state university in federal court to obtain correction of inventorship was correctly dismissed on Eleventh Amendment grounds. On this background, we turn to the question of whether the Eleventh Amendment immunizes the University from appeal of the decision in the PTO proceeding in which the University prevailed. Vas-Cath argues that precedent does not authorize the University to bar an appeal by the losing party, while retaining the benefits of the PTO decision. In Lapides v. Board of Regents of Univ. System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), the Court guided the Eleventh Amendment inquiry to “focus on the litigation act the State takes that creates the waiver.” Id. at 620, 122 S.Ct. 1640. In Lapides the state defendant was held to have waived its Eleventh Amendment immunity by voluntarily removing the case from state to federal court. Id. In" }, { "docid": "11660240", "title": "", "text": "be “unambiguous” and “evince a clear choice to submit [its] rights [to] adjudication by the federal courts.” Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 52 (1st Cir.2006) (internal quotation marks omitted). While the Commonwealth has been embroiled in litigation regarding its failure to duly establish a PPS reimbursement payment scheme for the better part of the past decade, the Secretary has repeatedly asserted the Commonwealth’s Eleventh Amendment rights to either litigate certain matters in its courts or otherwise protect its coffers from an imposition of liability. This conduct generally forecloses a finding of consent or waiver. The Supreme Court’s cases are as clear as they are consistent in holding that a State only waives its immunity under the Eleventh Amendment when it voluntarily entreats a federal court to adjudicate its rights. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (holding State waived immunity where it “voluntarily agreed to remove the case to federal court”); Gardner v. New Jersey, 329 U.S. 565, 573-74, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (holding State waived immunity where it “invoke[d] the aid” of bankruptcy court by filing a proof of claim); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883) (holding State waived Eleventh Amendment immunity where it chose to appear as intervenor); see also Ramsey, 366 F.3d at 16 (holding State waived Eleventh Amendment immunity where it invoked jurisdiction of a federal agency whose decisions were subject to review in federal court). That a State is haled into federal court as a defendant against its will and then defends itself once therein will not do. See Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n. 18, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) (“The fact that the State appeared and offered defenses on the merits does not foreclose consideration of the Eleventh Amendment issue.... ”). Here we cannot say that the Secretary voluntarily invoked the jurisdiction of the federal courts or otherwise waived its immunity by litigation conduct. The Commonwealth" }, { "docid": "3772641", "title": "", "text": "a jurisdictional issue.” Def.’s Mot. to Dismiss ¶ 10. The State, its agencies, and its political subdivisions, such as counties, generally enjoy sovereign immunity from state causes of action brought against them by individuals. See, e.g., Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692, 694 (Tex.2003); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002) (citations omitted); Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 248 (Tex.2002), superseded by statute on other grounds as stated in Tooke v. City of Mexia, 197 S.W.3d 325 (Tex.2006). This sovereign immunity encompasses both immunity from suit and immunity from liability. Carrasco v. City of Alvin, No. 14-06-00687-CV, 2007 WL 900790, at *2 (Tex.App. March 27, 2007) (citing Federal Sign v. Tex. Southern Univ., 951 S.W.2d 401, 405 (Tex. 1997), superseded by statute on other grounds). However, this immunity from suit is not absolute. First, Congress may abrogate the State’s immunity by authorizing a suit “in the exercise of its power to enforce the Fourteenth Amendment — an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance.” College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). Second, a State (or in this case, a county) may waive its sovereign immunity by consenting to suit. Id. (citing Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 27 L.Ed. 780 (1883)). The Supreme Court held in Lapides v. Board of Regents of the University System of Georgia that when a State voluntarily invokes the jurisdiction of the federal courts, that entity cannot then claim immunity from suit. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The rule derived from that case is clear: “removal is a form of voluntary invocation of a federal court’s jurisdiction sufficient to waive the State’s otherwise valid objection to litigation of a matter (here of state law) in a federal forum.” Id." }, { "docid": "13802222", "title": "", "text": "principles serving “the judicial need to avoid inconsistency, anomaly, and unfairness” in states’ claims of immunity in all types of federal litigation. 535 U.S. at 620, 122 S.Ct. 1640. Further, a reading of Lapides within the context of the Court’s previous development and application of the voluntary invocation principle convinces us that, just as the Court concluded about the Lapides case, there is nothing special about the present case or its removal, that would justify our taking it out from under the general legal principle requiring waiver. Second, the general applicability of the voluntary invocation principle and the waiver-by-removal rule is demonstrated by their history. As the Lapides opinion observes, “more than a century ago this Court indicated that a State’s voluntary appearance in federal court amounted to a waiver of its Eleventh Amendment immunity.” Id. at 619, 122 S.Ct. 1640 (citing and quoting Clark, 108 U.S. at 447, 2 S.Ct. 878 (“State’s ‘voluntary appearance in federal court as an intervenor avoids Eleventh Amendment inquiry’ ”); Gardner, 329 U.S. at 574, 67 S.Ct. 467 (“[A] State ‘waives any immunity ... respecting the adjudication of a [bankruptcy] ‘claim’ that it voluntarily files in federal court.”); Gunter, 200 U.S. at 284, 26 S.Ct. 252 (“[WJhere a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.”))- “The Court has long accepted this statement of the law as valid, often citing with approval the cases embodying that principle.” Lapides, 535 U.S. at 619, 122 S.Ct. 1640 (citing College Savings, 527 U.S. at 681, n. 3, 119 S.Ct. 2219 (1999) (citing Gardner); Employees of Dept. of Public Health and Welfare of Mo. v. Dep’t of Public Health and Welfare of Mo., 411 U.S. 279, 294, and n. 10, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) (Marshall, J., concurring in result) (citing Clark); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 276, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959) (citing Clark)). Until Ford, the Supreme Court fairly" }, { "docid": "13802215", "title": "", "text": "636 (1999), and Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98-99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), allows Texas to assert its “underlying sovereign immunity from suit in any court,” even after it has waived its “Eleventh Amendment immunity from suit in federal court.” In Lapides, the plaintiff, a professor in the Georgia university system, brought suit against the university board and its officials claiming damages for defamation under state law and for deprivation of his Fourteenth Amendment right to due process under the federal civil rights act, 42 U.S.C. § 1983. 535 U.S. at 616, 122 S.Ct. 1640. It was undisputed that the university board was an arm of the state and that Georgia by statute had waived its immunity from suits based on the state-law claims in state court. Id. at 617, 122 S.Ct. 1640. The board and its officials joined in removing the case to federal district court and sought dismissal. Id. at 616, 122 S.Ct. 1640. The district court held that the doctrine of qualified immunity barred La-pides’s federal-law claims against the university officials but that the board had waived its Eleventh Amendment immunity by removing the case from state to federal court. Id. at 617, 122 S.Ct. 1640. The board appealed the district court’s Eleventh Amendment immunity ruling, and the Court of Appeals for the Eleventh Circuit reversed. 251 F.3d 1372 (11th Cir.2001). The Supreme Court granted certiorari and reversed, concluding that the State’s action of voluntarily agreeing to remove the case to federal court constituted a form of voluntary invocation of the federal court’s jurisdiction and a waiver of its Eleventh Amendment immunity. Lapides, 535 U.S. at 620, 624, 122 S.Ct. 1640. The Court added, however, that because Lapides had not stated a valid federal claim against the state, its decision did not address whether or how removal would affect federal-law claims or claims in respect to which the state’s underlying sovereign immunity had not been waived or abrogated in state court. Id. at 617, 122 S.Ct. 1640. Nonetheless, the Court concluded that the question that prompted it to grant" }, { "docid": "17019890", "title": "", "text": "119 S.Ct. 2219. This court, applying these principles in Xechem, 382 F.3d at 1332, held that absent a sufficient showing of lack of remedy under state law, suit against a state university in federal court to obtain correction of inventorship was correctly dismissed on Eleventh Amendment grounds. On this background, we turn to the question of whether the Eleventh Amendment immunizes the University from appeal of the decision in the PTO proceeding in which the University prevailed. Vas-Cath argues that precedent does not authorize the University to bar an appeal by the losing party, while retaining the benefits of the PTO decision. In Lapides v. Board of Regents of Univ. System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), the Court guided the Eleventh Amendment inquiry to “focus on the litigation act the State takes that creates the waiver.” Id. at 620, 122 S.Ct. 1640. In Lapides the state defendant was held to have waived its Eleventh Amendment immunity by voluntarily removing the case from state to federal court. Id. In College Savings Bank, 527 U.S. at 675-76, 119 S.Ct. 2219, the Court had reaffirmed that the state waives its immunity when it voluntarily invokes federal jurisdiction or makes a clear declaration of its intention to submit itself to federal jurisdiction. And when a state voluntarily invokes federal jurisdiction, it is deemed to have waived its objection not only to the cause of action but also to any relevant defenses and counterclaims. See Regents of the Univ. of New Mexico v. Knight, 321 F.3d 1111, 1126 (Fed.Cir.2003) (the University waived its Eleventh Amendment immunity to the counterclaims by filing suit for a declaration of patent ownership and inven-torship, for “when a state files suit in federal court to enforce its claims to certain patents, the state shall be considered to have consented to have litigated in the same forum all compulsory counterclaims, i. a, those arising from the same transaction or occurrence that gave rise to the state’s asserted claims”). Vas-Cath argues that when the University requested the PTO to conduct an interference proceeding without raising" }, { "docid": "17019900", "title": "", "text": "bar the appeal of the PTO’s decision in favor of the University. This argument raises issues not of federalism, but of litigation tactics, for it is undisputed that the PTO decision cannot be reviewed in state court. And it is undisputed that no recourse was made to the Eleventh Amendment during the PTO proceeding. As the Ramsey court pointed out: The state voluntarily put itself in the position of being a party in a federal administrative forum whose actions would be reviewed in federal court. The state’s actions expressed a clear choice to submit its rights for adjudication in the federal courts. To permit the state to reverse course would contravene the reasons for the doctrine of waiver by litigation conduct recognized by Lapides 366 F.3d at 16-17. We need not consider whether the University intended to gain an unfair tactical advantage, for “[mjotives are difficult to evaluate, while jurisdictional rules should be clear.” Lapides, 535 U.S. at 621, 122 S.Ct. 1640. We have concluded that when the University initiated and participated in the interference, its participation included the ensuing statutory review procedures; the University cannot invoke Eleventh Amendment immunity, after it prevailed, to shield the agency decision from review. D We agree with the district court that Vas-Cath’s naming the individual Curators of the University of Missouri as defendants does not invoke Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Young the Court explained that there must be “some connection with the enforcement of the act, or else [the suit] is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” Id. at 157, 28 S.Ct. 441. We have been directed to no connection between the interference proceeding and actions of the University curators. E The University also argued that Vas-Cath chose the wrong appellate route in proceeding under 35 U.S.C. § 146, and should have appealed directly to the Federal Circuit under 35 U.S.C. § 141. Upon inquiry from the bench, the University’s counsel stated that only “a straight appeal that does" } ]

[ { "docid": "22573551", "title": "", "text": "Snow v. Standard Ins. Co., 87 F.3d 327, 331 (9th Cir.1996). In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court said that when an ERISA plan grants discretionary authority to the plan administrator to determine plan eligibility, the court will ordinarily review a committee’s decision to deny benefits for an abuse of discretion. In Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), the Ninth Circuit held that the plan documents must grant this discretionary authority unambiguously; if the plan fails to do this, the district court must review a committee’s decision de novo. In this case, the retirement plan language unambiguously gives the Committee broad discretion to determine eligibility benefits. It grants the administrative committee the “power” and “duty” to “interpret the plan and to resolve ambiguities, inconsistencies and omissions” and to “decide on questions concerning the plan and the eligibility of any Employee .... ” See Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000) (noting how there “is no magic to the words ‘discretion’ or ‘authority’ ”). Even if a plan, however, provides this discretionary authority, warranting review for an abuse of discretion standard, the courts will apply a heightened standard of review if one of the plan administrators has a “serious” conflict of interest. Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322-23 (9th Cir.1995). Bergt maintains Committee member Kevin Cordell had a serious conflict of interest because he was both a beneficiary of the retirement plan and an administrator. Furthermore, according to Bergt, Laurence Rhodes, a former member of the retirement plan’s administrative committee, said that Cordell told him that Bergt “was trying to get into the ... [retirement plan], and ... as long as [Cordell] had anything to say about it that would not happen.” Also, members of the Committee admitted the underfunding of the retirement plan was a factor in their consideration of Bergt’s claim. This evidence fails to show a serious conflict. Cordell serving as an administrator while also being a beneficiary is" } ]

[ { "docid": "12062213", "title": "", "text": "of discretion standard. Where, as here, the abuse of discretion standard applies in an ERISA benefits denial case, a motion for. summary judgment is, in most respects, merely the conduit to bring the legal question before the district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, do not apply. Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929-30 (9th Cir.2012) (citations, quotation marks omitted). In addition, “judicial review of benefits determinations is limited to the administrative record— that is, the record upon which the plan administrator relied in making its benefits decision[.]” Id. at 930 (internal quotation marks omitted). “[W]hen a court must decide how much weight to give a conflict of interest under the abuse of discretion standard!]] . . the court may consider evidence outside the [administrative] record.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir.2006) (en banc). In considering “evidence outside the administrative record to decide the nature, extent, and effect on the decision-making process of any conflict of interest[,]” id. traditional rules of summary judgment apply, and “summary judgment may only be granted if after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact.” Stephan, 697 F.3d at 930 (internal quotation marks omitted). “[T]he decision on the merits, though, must rest on the administrative record once the conflict (if any) has been established, by extrinsic evidence or otherwise.” Abatie, 458 F.3d at 970. DISCUSSION I. The Court applies “abuse of discretion” review. A denial of benefits by an ERISA plan administrator is reviewed 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). The grant of discretion must be unambiguous. Abatie, 458 F.3d at 963. Here, the LTD policy’s “Allocation of Authority” clause provides that: Except for those functions which the Group" }, { "docid": "22692140", "title": "", "text": "final determinations of eligibility for benefits; interpretation of terms; determinations of claims; and appeals of claims denied in whole or in part under the HFLAC Group [Home Life] policy rests exclusively with HFLAC. (Emphasis added.) Under the applicable precedents, that provision is sufficient to confer discretion on Alta, the plan administrator and successor in interest to Home Life, even though the word “discretion” does not appear. There are no “magic” words that conjure up discretion on the part of the plan administrator. See Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000) (noting that “there is no magic to the words ‘discretion’ or ‘authority’ ”). The Supreme Court has suggested that a plan grants discretion if the administrator has the “power to construe disputed or doubtful terms” in the plan. Firestone, 489 U.S. at 111, 109 S.Ct. 948; see also id. at 115, 109 S.Ct. 948 (noting that if a plan grants an administrator the right to determine eligibility for benefits or to “construe the terms of the plan,” it has discretionary authority), and id. at 111, 109 S.Ct. 948 (stating that Firestone cannot take advantage of the principles of discretion “for there is no evidence that under Firestone’s termination pay plan the administrator has the power to construe uncertain terms or that eligibility determinations are to be given deference”). Moreover, we have repeatedly held that similar plan wording — granting the power to interpret plan terms and to make final benefits determinations — confers discretion on the plan administrator. See, e.g., Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir.2002) (holding that a plan conferred discretion because its terms granted the administrator the “power” and “duty” to “interpret the plan and to resolve ambiguities, inconsistencies and omissions” and to “decide on questions concerning the plan and the eligibility of any Employee” (internal quotation marks omitted)); Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1159 (9th Cir.2001) (holding that a plan providing that the administrator “has the full, final, conclusive and binding power to construe and interpret" }, { "docid": "8811347", "title": "", "text": "the administrator acted within the scope of that discretion. See Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996). If the reviewing court determines that the language of the plan confers discretion on the administrator to determine eligibility or to construe terms of the plan, then a court reviews the decision to deny benefits for abuse of discretion. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 111, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Ellis, 126 F.3d at 232; Haley, 77 F.3d at 89. This deferential standard of review requires that a reviewing court not disturb an administrator’s decision if it is reasonable, even if this Court would have reached a different conclusion. See Bruch, 489 U.S. at 115, 109 S.Ct. 948; Haley, 77 F.3d at 89. Initially we must determine de novo whether the Capital Plan’s terms confer discretionary authority on Paul Revere to make eligibility decisions. See Haley, 77 F.3d at 89; Ellis, 126 F.3d at 232. Because ERISA plans are contractual documents, although regulated, their interpretation is “governed by established principles of contract and trust law.” Haley, 77 F.3d at 88; see Bruch, 489 U.S. at 109-11, 109 S.Ct. 948. As with other contractual provisions, courts construe the plan’s terms without deferring to either party’s interpretation. Bruch, 489 U.S. at 112, 109 S.Ct. 948; see Wheeler v. Dynamic Eng’g Inc., 62 F.3d 634, 638 (4th Cir.1995) (stating that ERISA plans are interpreted “under ordinary principles of contract law”). This Court does not require specific phrases to trigger a particular standard of review. Rather, we examine the terms of the plan to determine if it vests in its administrators discretion either to settle disputed eligibility questions or construe doubtful provisions of the Plan. See de Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir.1989). We will find discretionary authority in the administrator if the plan’s language expressly creates discretionary authority. See Doe v. Group Hosp. & Med. Serv., 3 F.3d 80, 85 (4th Cir.1993) (applying abuse of discretion standard of review when the plan at issue gave “full power" }, { "docid": "23051814", "title": "", "text": "Silver and Jares. II. STANDARDS OF REVIEW We review de novo a district court’s grant of a motion for summary judgment. Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir.2002). We also review de novo “a district court’s choice and application of the standard of review to decisions by fiduciaries in ERISA cases.” Abatie, 458 F.3d at 962. III. DISCUSSION The Plan at issue in this case included broad language granting Metlife discretionary authority to both interpret the Plan and determine eligibility for benefits. We determined nearly identical language unambiguously conferred discretionary authority to administer benefits upon Met-Life in Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 866-67 (9th Cir.2008), and we conclude the same here: the Heald College Long-Term Disability Plan “unambiguously confers discretionary authority on MetLife to administer benefits claims.” Id. at 867. A. Defining the Contours of the Abuse of Discretion Standard Where an ERISA plan confers discretionary authority upon a plan administrator to determine eligibility for benefits, we generally review the administrator’s decision to deny benefits for an abuse of discretion. Abatie, 458 F.3d at 963 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). However, as the parties agree that MetLife operates under a structural conflict of interest as an entity that both determines eligibility for benefits and pays benefits awards, the precise standard of review in this case requires our consideration of Abatie, 458 F.3d 955, and the recent United States Supreme Court opinion in Metro. Life Ins. Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) (MetLife). Where a plan administrator operates under a conflict of interest — in this case, a structural conflict — a court must weigh the conflict “ ‘as a factor in determining whether there is an abuse of discretion.’ ” MetLife, 128 S.Ct. at 2348 (citing Firestone, 489 U.S. at 115, 109 S.Ct. 948) (emphasis in original). As noted in Abatie, consideration of the conflict can “affect judicial review,” and a court is" }, { "docid": "16075135", "title": "", "text": "benefits to an ERISA plan beneficiary. See 29 U.S.C. §§ 1132(a)(1)(B); 1132(e). 2. ERISA benefits determinations are to be reviewed 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). An ERISA benefits determination under a plan that “unambiguously” confers such discretionary authority shall be reviewed under an abuse of discretion standard. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999). In this case, both the MET Policy and UNUM Policy unambiguously confer discretion to determine eligibility for benefits and interpret plan terms. Therefore, the Court reviews the MET and UNUM denials of benefits under an abuse of discretion standard. II. Mitchell’s Claim With MET A. MET’s Conñict of Interest 3. In Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 967-69 (9th Cir.2006), the Ninth Circuit held that district courts should employ a case-by-case approach to abuse of discretion review in ERISA cases. Id. This approach allows district courts to consider the “kind of inherent conflict that exists when a plan administrator both administers the plan and funds it, as well as other forms of conflict.” Id. at 967. 4. The Ninth Circuit has offered guidance on tailoring review to the particular facts and circumstances of a ERISA administrator’s denial of benefits: The level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history. A court may weigh a conflict more heavily if, for example, the administrator provides inconsistent reasons for denial, fails adequately to investigate a claim or ask. plaintiff for necessary evidence, fails to credit claimant’s reliable evidence, or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record. Id. at 968 (citations omitted). 5. Ultimately, the “district" }, { "docid": "22692141", "title": "", "text": "discretionary authority), and id. at 111, 109 S.Ct. 948 (stating that Firestone cannot take advantage of the principles of discretion “for there is no evidence that under Firestone’s termination pay plan the administrator has the power to construe uncertain terms or that eligibility determinations are to be given deference”). Moreover, we have repeatedly held that similar plan wording — granting the power to interpret plan terms and to make final benefits determinations — confers discretion on the plan administrator. See, e.g., Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir.2002) (holding that a plan conferred discretion because its terms granted the administrator the “power” and “duty” to “interpret the plan and to resolve ambiguities, inconsistencies and omissions” and to “decide on questions concerning the plan and the eligibility of any Employee” (internal quotation marks omitted)); Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1159 (9th Cir.2001) (holding that a plan providing that the administrator “has the full, final, conclusive and binding power to construe and interpret the policy under the plan ... [and] to make claims determinations” grants discretion (internal quotation marks omitted)). Many of our sister circuits have come to a similar conclusion. A number of cases hold that when the words give a plan administrator the authority to interpret the plan’s terms and to make final benefits determinations, discretion is unambiguously vested in the administrator. See, e.g., McElroy v. Smithkline Beecham Health & Welfare Benefits Trust Plan for U.S. Employees, 340 F.3d 139, 141 (3d Cir.2003) (holding that the following text conferred discretion: The administrator “reserves the absolute right to interpret” plan provisions and “to make determinations of facts and eligibility for benefits, and to decide any dispute that may arise.”); Shields v. Reader’s Digest Ass’n, 331 F.3d 536, 541 n. 6 (6th Cir.2003) (holding that discretion was granted when the plan provided the administrator had “complete control” over the administration of the Plan, and “the power to construe” the Plan and “determine all questions” that arise under it); Twomey v. Delta Airlines Pilots Pension Plan, 328 F.3d 27," }, { "docid": "5936281", "title": "", "text": "computer systems, and the paucity of documentation in the Clinic’s files. Alta noted that it was prejudiced by Dr. Abatie’s failure to file a claim because of the importance of setting aside reserves, managing the claim, and periodically verifying the continuance of the alleged disability. In addition, Alta concluded that there was insufficient proof that Dr. Abatie was totally disabled from all occupations until his death; it cited this conclusion as a second, additional reason for denying the claim. After a bench trial, the district court held that abuse of discretion review applied and that Alta did not abuse its discretion in denying Abatie’s claim. II When a plan administrator’s denial of benefits is challenged under ERISA, the default rule holds that courts review the administrator’s denial 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). Abatie vigorously argues that we must review Alta’s denial of benefits de novo because the Plan does not adequately grant discretion to Alta. Abatie also argues that even if the Plan does effectively grant Alta discretion, Alta’s behavior manifested a serious conflict of interest which demands heightened review. We address, and reject, each contention. A Only if a plan unambiguously grants discretion to the administrator to determine eligibility will we review an administrator’s denial of benefits for an abuse of discretion. Id.; Kearney v. Standard Ins. Co., 175 F.3d 1084, 1088-89 (9th Cir.1999) (en banc). The standard of review depends on whether the “plan documents unambiguously say in sum or substance that the Plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the Plan[.]” Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000). Although the plan must effectively grant the administrator discretion in interpreting the plan or determining eligibility, there is no requirement that the word “discretion” be used. Id. (observing that “there is no magic" }, { "docid": "16540141", "title": "", "text": "S.Ct. 948, 953, 103 L.Ed.2d 80 (1989) (“Although it is a comprehensive and reticulated statute, ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations.”). The United States Supreme Court, however, in Firestone, addressed the standard of review to be applied in reviewing ERISA benefit determinations, holding 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, 489 U.S. at 115, 109 S.Ct. at 956-57; see also Abatie v. Alta Health & Life Ins. Co., 421 F.3d 1053, 1059 (9th Cir.2005) (“the default rule” is that “courts review [an] administrator’s denial [of benefits] de novo” except where a benefit plan gives the administrator or fiduciary discretion to determine eligibility for benefits or to construe the terms of the plan); Lamantia v. Voluntary Plan Administrators. Inc., 401 F.3d 1114, 1122-23 (9th Cir.2005) (same). If a benefit plan “unambiguously” gives an administrator or fiduciary the discretionary authority to determine eligibility for benefits or to construe the terms of the plan, the denial of benefits is reviewed for an abuse of discretion. Abatie, 421 F.3d 1053, 1059. Accordingly, “[t]he court must examine the specific language of a plan to determine the standard of review.” Shane v. Albertson’s Inc. Employees’ Disability Plan, 2005 WL 1902130 at *1 (C.D.Cal.2005). Indeed, “[t]he standard of review depends on whether ‘the plan documents unambiguously say in sum or substance that the Plan Administrator or fiduciary has authority, power, or discretion to determine eligibility or to construe the terms of the Plan[.]’ ” Abatie, 421 F.3d 1053, 1059 (quoting Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000)); see also Bergt v. Retirement Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir.2002) (“the plan documents must grant this discretionary authority unambiguously”). However, “there is no requirement that the word ‘discretion’ be used.” Abatie, 421 F.3d 1053, 1059. When the standard" }, { "docid": "21229088", "title": "", "text": "1089 (9th Cir.1999). In this case, the Plan provides in relevant part that: The Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious. (AR 0102). The Court concludes that the foregoing language contained in the LTD Plan unambiguously grants discretion to MetLife. Once the Court concludes that the Plan vests discretionary authority in the administrator or fiduciary, the Court must determine whether the administrator or fiduciary is operating under a conflict of interest. Under the Ninth Circuit’s recent en banc decision in Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (2006) in which the Ninth Circuit overruled Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317 (1995), the “[a]buse of discretion [standard of] review applies to a discretion-granting plan even if the administrator has a conflict of interest.” Abatie, 458 F.3d at 965. However, “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’ Restatement (Second) of Trusts § 187, Comment d (1959).” Firestone, 489 U.S. at 115, 109 S.Ct. 948 (quoted in Abatie, 458 F.3d at 965). Where, as here, an insurer “acts as both the plan administrator and the funding source for benefits,” the insurer “operates under what may be termed a structural conflict of interest.” Abatie, 458 F.3d at 965. In the case of such a structural conflict of interest, the Court is to apply an abuse of discretion review which is “tempered by skepticism commensurate with the plan administrator’s conflict of interest.” Id. at 968. As the Ninth Circuit explained in Abatie: The level of skepticism with which a court views a conflicted administrator’s decision may be low if a" }, { "docid": "20850514", "title": "", "text": "illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.’ ” Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir.2011) (citation omitted). “[T]he plan administrator’s decision can be upheld if it is ‘grounded on any reasonable basis.’ ” Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 629 (9th Cir.2009) (citation omitted); Jordan, 370 F.3d at 875. “In other words, where there is no risk of bias on the part of the administrator, the existence of a ‘single persuasive medical opinion’ supporting the administrator’s decision can be sufficient to affirm, so long as the administrator does not construe the language of the plan unreasonably or render its decision without explanation.” Montour, 588 F.3d at 630. An administrator does not commit an abuse of discretion merely because “the record may contain evidence that could support a contrary conclusion.” Ordway v. Metro. Life Ins. Co., 634 F.Supp.2d 1120, 1123 (S.D.Cal.2007). “An ERISA administrator abuses its discretion only if it (1) renders a decision without explanation, (2) construes provisions of the plan in a way that conflicts with the plain language of the plan, or (3) relies on clearly erroneous findings of fact.” Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir.2005). “A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mis take has been committed.” Id. (internal punctuation omitted). If the plan does not grant the administrator discretion to determine benefits, then review of the administrator’s decision is conducted under the de novo standard. Firestone Tire & Rubber Co., 489 U.S. at 115, 109 S.Ct. 948. Under the de novo standard, “[t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir.2006). The normal summary judgment standard applies under de novo review. See Tremain v. Bell Indus., Inc., 196 F.3d 970, 978" }, { "docid": "7614046", "title": "", "text": "income. On the other hand, defendants contend that the Other Income Benefits under the plan include workers’ compensation benefits. Defendants have counterclaimed asserting causes of action for breach of contract, money due and owing, and declaratory relief. DISCUSSION I. Standard of Review Defendants contend that the Court must review its disability determination under an abuse of discretion standard, while plaintiff argues that defendant Hartford has a conflict of interest that warrants less deferential review by the Court. “[A] denial of benefits challenged under [ERISA] § 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.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999). When the plan confers discretion on the plan administrator to determine eligibility for benefits, courts review the denial of benefits for abuse of discretion. Id. The “default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en banc). The ERISA plan at issue here unambiguously provides Hartford with discretion to determine whether a claimant is entitled to benefits. Under the plan, Hartford has “full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy.” AR 723. Plaintiff does not contend that the policy does not confer discretionary authority upon Hartford; instead, plaintiff argues that de novo review should apply because Hartford has an inherent conflict of interest. The Ninth Circuit has held that the abuse of discretion standard of review can be “heightened” by a plan administrator’s conflict of interest. See Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995). There is an apparent conflict of interest where a long-term disability policy is both funded and" }, { "docid": "20850515", "title": "", "text": "decision without explanation, (2) construes provisions of the plan in a way that conflicts with the plain language of the plan, or (3) relies on clearly erroneous findings of fact.” Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir.2005). “A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mis take has been committed.” Id. (internal punctuation omitted). If the plan does not grant the administrator discretion to determine benefits, then review of the administrator’s decision is conducted under the de novo standard. Firestone Tire & Rubber Co., 489 U.S. at 115, 109 S.Ct. 948. Under the de novo standard, “[t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir.2006). The normal summary judgment standard applies under de novo review. See Tremain v. Bell Indus., Inc., 196 F.3d 970, 978 (9th Cir.1999). If “the same entity that funds an ERISA benefits plan also evaluates claims ... the plan administrator faces a structural conflict of interest: since it is also the insurer, benefits are paid out of the administrator’s own pocket, so by denying benefits, the administrator retains money for itself.” Montour, 588 F.3d at 630. Where such a conflict of interest is alleged and the administrator has discretion to decide eligibility for benefits, the abuse-of-discretion standard still applies and the alleged conflict is but one factor in the analysis, with appropriate weight given to the administrator’s determination depending upon the seriousness of the alleged conflict. Id. at 631. “[A] higher degree of skepticism is appropriate where the administrator has a conflict of interest.” Salomaa, 642 F.3d at 676. As the Ninth Circuit has said, The level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history. A court" }, { "docid": "12062214", "title": "", "text": "decision-making process of any conflict of interest[,]” id. traditional rules of summary judgment apply, and “summary judgment may only be granted if after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact.” Stephan, 697 F.3d at 930 (internal quotation marks omitted). “[T]he decision on the merits, though, must rest on the administrative record once the conflict (if any) has been established, by extrinsic evidence or otherwise.” Abatie, 458 F.3d at 970. DISCUSSION I. The Court applies “abuse of discretion” review. A denial of benefits by an ERISA plan administrator is reviewed 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). The grant of discretion must be unambiguous. Abatie, 458 F.3d at 963. Here, the LTD policy’s “Allocation of Authority” clause provides that: Except for those functions which the Group Policy specifically reserves to the Policyholder or Employer, we have full and exclusivé authority to control and manage the Group Policy, to administer claims, and to interpret the Group Policy and resolve all questions arising in the administration, interpretation, and application of the Group Policy. AR 00033. The Ninth Circuit has concluded that this language is effective to confer discretion on a plan administrator. See Harris v. Standard Ins. Co., 320 Fed.Appx. 583, 584 (9th Cir.2009) (holding that nearly identical language in a contract between a plaintiff and Standard Insurance Company was “sufficient to warrant abuse of discretion review”). Nevertheless, Plaintiff argues that Defendant has failed to meet its burden to show that the discretionary authority was actually exercised by the named fiduciary. Plaintiff is correct that, while courts “defer to the decisions of plans in which their language grants discretionary authority, that deference applies only when the decision is made by the body vested with discretion.” Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1105 (9th Cir.2003). Plaintiff’s argument" }, { "docid": "5688369", "title": "", "text": "depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed under a de novo standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if “the benefit plan expressly gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the plan’s terms,” an abuse of discretion standard is applied. Id. at 102, 109 S.Ct. 948. Under this standard, the administrator’s decision will be upheld if is reasonable and supported by substantial evidence in the administrative record as a whole. McKenzie v. General Tel. Co. of Cal, 41 F.3d 1310, 1316-17 (9th Cir.1994). Here, there is no dispute that the Plan confers discretion upon Hartford. Plaintiff asserts, however, that the Court should nonetheless conduct de novo review. He notes that under Abatie v. Alta Health & Life Insurance Co., 458 F.3d 955 (9th Cir.2006) (en banc), violations of ERISA procedure that are “so flagrant as to alter the substantive relationship between the employer and employee” will result in de novo review notwithstanding the plan’s grant of discretionary authority to the administrator. Id. at 971. Hartford’s purported violation of ERISA procedure was its “failure to acknowledge or address” Plaintiffs request for LTD benefits. This request, however, was contained in his appeal of Hartford’s denial of his claim for STD benefits. Plaintiff never filed an independent claim for LTD benefits, and thus Hartford had no obligation to render a separate decision on such a claim. Moreover, for the first twelve months of LTD benefits, the definition of disability is identical under both the STD and the LTD plan. Thus, Hartford’s decision on Plaintiffs appeal was tantamount to a determination that he was not eligible for LTD benefits. Because Hartford did not commit a flagrant violation of ERISA procedures, there is no basis to apply de novo review. Plaintiff argues in the alternative that, even if de novo review does not apply, the circumstances call for a highly skeptical review of Hartford’s decision. This argument is based on Abatie’s holding" }, { "docid": "14015715", "title": "", "text": "receive Social Security Disability benefits. Docket No. 72 (Moody Dec.) ¶ 2. CONCLUSIONS OF LAW I.Standard of Review 1. ERISA provides for judicial review of a decision to deny benefits to an ERISA plan beneficiary. See 29 U.S.C. § 1132(a)(1)(B). 2. ERISA creates federal court jurisdiction to hear such a claim. See 29 U.S.C. § 1132(e). 3. In determining the appropriate standard of review, a court should be guided by principles of trust law, analogizing a plan administrator to the trustee of a common law trust. A benefit determination should be considered to be a fiduciary act, i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries. Metropolitan Life Ins. Co. v. Glenn, — U.S.-,-, 128 S.Ct. 2343, 2347, 171 L.Ed.2d 299 (2008), quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). 4. ERISA benefits determinations are to be reviewed 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. Glenn at 2348; see also Firestone at 115, 109 S.Ct. 948. 5. Where an administrator has retained discretionary authority, “trust principles make a deferential standard of review [i.e., review for abuse of discretion] appropriate.” Glenn at 2348, quoting Firestone at 111, 109 S.Ct. 948. The court must evaluate all the facts and circumstances to make something “akin to a credibility determination about the insurance company’s or plan administrator’s reason for denying coverage under a particular plan and a particular set of medical and other records.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir.2006). 6. An administrator has discretion only where it is “unambiguously retained.” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), quoting Bogue v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir.1992). In this case, the parties agree that defendant retained such discretion. See P-025 (policy provision regarding “interpretation of the policy”). 7. Where a benefit plan gives discretion to an administrator who is operating under a" }, { "docid": "16075134", "title": "", "text": "that review did not suffer from prejudice of late filing. (UNUM 1830.) 46. UNUM conducted another psychiatric review. Dr. Malcolm Spica, P.H.D., determined that Mitchell did not have limitations from a psychiatric perspective. UNUM also had a vocational consultant conduct a vocational review to consider whether Mitchell’s position was consistent with the restrictions outlined by Dr. Schnars. The consultant concluded that Mitchell’s position was sedentary and thus complied with the restrictions. 47. On January 3, 2007, UNUM affirmed denial of Mitchell’s claim on appeal. The letter denying the appeal cited the policy definition of disability. It noted that CBRE informed UNUM that Mitchell never stopped working and was claiming a disability based on reduced ability to earn. Thus, UNUM concluded that did not meet the definition of disability because he “continued to perform a portion of his material and substantial duties” through January 1, 2004, which was the day after termination of the UNUM policy. (UNUM 1856-59.) CONCLUSIONS OF LAW I. Standard of Review 1. ERISA provides for judicial review of a decision to deny benefits to an ERISA plan beneficiary. See 29 U.S.C. §§ 1132(a)(1)(B); 1132(e). 2. ERISA benefits determinations are to be reviewed 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). An ERISA benefits determination under a plan that “unambiguously” confers such discretionary authority shall be reviewed under an abuse of discretion standard. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999). In this case, both the MET Policy and UNUM Policy unambiguously confer discretion to determine eligibility for benefits and interpret plan terms. Therefore, the Court reviews the MET and UNUM denials of benefits under an abuse of discretion standard. II. Mitchell’s Claim With MET A. MET’s Conñict of Interest 3. In Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 967-69 (9th Cir.2006), the Ninth Circuit held that district courts should employ a case-by-case approach to" }, { "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": "1551522", "title": "", "text": "must conduct, pursuant to Rule 52, Federal Rules of Civil Procedure, a bench trial based on the administrative record and such other evidence as the Court admits. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.) (en banc) cert. den. 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). II. Parties’ Motions A. ERISA Standard of Review ERISA provides Plaintiff with a federal cause of action to recover the benefits she claims are due under the Plan. 29 U.S.C. § 1132(a)(1)(B). The standard of review of a plan administrator’s denial of ERISA benefits depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed under a de novo standard. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” an abuse of discretion standard is applied. Id.; Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 (9th Cir.1993). Where discretionary authority has been granted to the plan administrator, the Ninth Circuit has applied an “arbitrary and capricious” standard in determining whether the plan administrator abused its discretion. McKenzie v. General Telephone Co. of California, 41 F.3d 1310, 1314 (9th Cir.1994); Taft, 9 F.3d at 1471, n. 2 (use of the term “arbitrary and capricious” versus “abuse of discretion” is a “distinction without a difference”). Here, the plan grants Liberty discretion to interpret the policy, as well as the power to decide eligibility for benefits. Because the plan grants Liberty this discretionary authority, an arbitrary and capricious or abuse of discretion standard should be applied, unless a conflict of interest triggers the less deferential standard. See, e.g., Taft, 9 F.3d at 1471. If “a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948." }, { "docid": "22692139", "title": "", "text": "the default standard of review. Id.; Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999) (en bane). If de novo review applies, no further preliminary analytical steps are required. The court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits, without reference to whether the administrator operated under a conflict of interest. But if the plan does confer discretionary authority as a matter of contractual agreement, then the standard of review shifts to abuse of discretion. Firestone, 489 U.S. at 115, 109 S.Ct. 948. We have held that, for a plan to alter the standard of review from the default of de novo to the more lenient abuse of discretion, the plan must unambiguously provide discretion to the administrator. Kearney, 175 F.3d at 1090. The essential first step of the analysis, then, is to examine whether the terms of the ERISA plan unambiguously grant discretion to the administrator. Accordingly, we first turn to the text of the plan. The plan at issue here provides: The responsibility for full and final determinations of eligibility for benefits; interpretation of terms; determinations of claims; and appeals of claims denied in whole or in part under the HFLAC Group [Home Life] policy rests exclusively with HFLAC. (Emphasis added.) Under the applicable precedents, that provision is sufficient to confer discretion on Alta, the plan administrator and successor in interest to Home Life, even though the word “discretion” does not appear. There are no “magic” words that conjure up discretion on the part of the plan administrator. See Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th Cir.2000) (noting that “there is no magic to the words ‘discretion’ or ‘authority’ ”). The Supreme Court has suggested that a plan grants discretion if the administrator has the “power to construe disputed or doubtful terms” in the plan. Firestone, 489 U.S. at 111, 109 S.Ct. 948; see also id. at 115, 109 S.Ct. 948 (noting that if a plan grants an administrator the right to determine eligibility for benefits or to “construe the terms of the plan,” it has" }, { "docid": "21229087", "title": "", "text": "63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Parrino v. FHP, Inc., 146 F.3d 699, 703-04 (9th Cir.1998). Venue in the United States District Court for the Central District of California is invoked pursuant to 29 U.S.C. § 1132(e)(2). The parties do not dispute the facts requisite to federal jurisdiction and venue. II. Standard Of Review A “denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator 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). Where the plan vests such discretionary authority in the administrator or fiduciary, the Court reviews the denial of benefits under the plan for an abuse of discretion. Id. However, in order for the abuse of discretion standard to apply, the Plan must unambiguously grant discretion to the administrator or fiduciary. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th Cir.1999). In this case, the Plan provides in relevant part that: The Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious. (AR 0102). The Court concludes that the foregoing language contained in the LTD Plan unambiguously grants discretion to MetLife. Once the Court concludes that the Plan vests discretionary authority in the administrator or fiduciary, the Court must determine whether the administrator or fiduciary is operating under a conflict of interest. Under the Ninth Circuit’s recent en banc decision in Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (2006) in which the Ninth Circuit overruled Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317 (1995), the “[a]buse of discretion [standard of] review applies" } ]

[ { "docid": "2210491", "title": "", "text": "In response, the government maintains that the district court correctly denied the motion for judgment of acquittal because the photographs in question clearly depict sexually explicit conduct. ‘We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the verdict.” United States v. Hawkins, 548 F.3d 1143, 1148 (8th Cir.2008). We will reverse “only if no reasonable jury could have found the accused guilty.” United States v. Flying By, 511 F.3d 773, 776 (8th Cir.2007). “Sexually explicit conduct” in the context of child pornography includes “‘lascivious exhibition of the genitals or pubic area of any person.’ ” United States v. Horn, 187 F.3d 781, 789 (8th Cir.1999) (quoting 18 U.S.C. § 2256(2)(E)). “The meaning of the phrase ‘lascivious exhibition of the genitals or pubic area’ is a matter of law which we review de novo.” Id. But “the question whether materials depict ‘lascivious exhibition of the genitals,’ an element of the crime, is for the finder of fact.” United States v. Rayl, 270 F.3d 709, 714 (8th Cir.2001). “Nudity alone does not fit this description; there must be an ‘exhibition’ of the genital area and this exhibition must be ‘lascivious.’ ” Horn, 187 F.3d at 789; see also 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 statute.”). “A picture is ‘lascivious’ only if it is sexual in nature.” Kemmerling, 285 F.3d at 646. “In attempting to determine the limits of this category of sexually explicit conduct, we find helpful the six criteria suggested in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987).” Horn, 187 F.3d at 789. We have found that “when the child is nude or partially clothed, when the focus of the depiction is the child’s genitals or pubic area, and when the image is intended to" } ]

[ { "docid": "23431693", "title": "", "text": "Poitra’s notable risk for committing sexual offenses in the future and his prior convictions for sexual offenses. First, Poitra’s particular risk of committing future sexual offenses supports the imposition of Special Condition 6. Poitra’s presentence investigation report (PSR) included the findings from a psyehosexual evaluation that was conducted after Poitra’s 2007 conviction for gross sexual imposition. Notably, the report from this evaluation stated that Poitra’s “likelihood of reoffending is high, with [Poitra] clearly being at risk for future similar offending behaviors.” In light of Poitra’s high risk for recidivism, Special Condition 6 is reasonably related and reasonably necessary to Poitra’s rehabilitative process. Second, Poitra’s history of sexual offenses, including his conviction for aggravated sexual abuse in the instant case, also supports the imposition of Special Condition 6. We have repeatedly upheld similar conditions that were imposed on a defendant that had been convicted of a sexual offense. See, e.g., Mayo, 642 F.3d at 631— 32; United States v. Demers, 634 F.3d 982, 985 (8th Cir.2011) (per curiam); United States v. Stults, 575 F.3d 834, 854-55 (8th Cir.2009); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007); United States v. Ristine, 335 F.3d 692, 694-95 (8th Cir.2003). Although none of Poitra’s past offenses have actually involved the use of pornography, such a direct connection is not necessary. An imposed condition of supervised release need only be reasonably related to the section 3553(a) factors. 18 U.S.C. § 3583(d)(1). Prohibiting Poitra’s possession of material that depicts or describes sexually explicit conduct is reasonably related to the “nature and circumstances” of Poitra’s pri- or sexual offenses against minors and to the goal of “protecting] the public from further crimes.” 18 U.S.C. § 3553(a)(1); see also Demers, 634 F.3d at 985 (concluding that a defendant’s “offense and history, including his prior conviction for sexual abuse,” made it unlikely that the imposition of a pornography ban without individualized findings affected the defendant’s substantial rights). The relationship between child pornography and the sexual abuse of children is well documented. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 263, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)" }, { "docid": "23190669", "title": "", "text": "cases, and with decisions from other circuits. In United States v. Simons, the Eighth Circuit recognized that special conditions that prohibit possession of pornographic materials “have often withstood First Amendment challenges” but nonetheless held that a condition prohibiting the defendant “from possessing any material that depicts nudity” involved a “greater deprivation of liberty than [was] reasonably necessary.” 614 F.3d 475, 483, 485 (8th Cir.2010). And the Seventh Circuit in United States v. Siegel, citing Simons, remanded for a district court to reconsider a similar condition restricting the possession of materials containing nudity. 753 F.3d 705, 712-13 (7th Cir.2014). The Seventh Circuit suggested that the prohibition be rephrased to encompass only “material that depicts nudity in a prurient or sexually arousing manner,” which accords with the commonly understood definition of pornography. Id. at 713. D. Limitation on the special condition. The district court intended to restrict Gnirke’s access to “child and adult pornography,” but by applying the definition in 18 U.S.C. § 2256(2) to depictions of adult sexual activity, the condition deprives Gnirke of more liberty than is reasonably necessary. We therefore construe the condition to apply: (1) to any materials with depictions of “sexually explicit conduct” involving children, as defined by 18 U.S.C. § 2256(2), and (2) to any materials with depictions of “sexually explicit conduct” involving adults, defined as explicit sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by Gnirke’s probation officer. Gnirke may not possess such materials, nor may he patronize any place where such materials or entertainment are available. See United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir.2008) (construing a facially broad condition more narrowly to avoid a greater deprivation of defendant’s liberty than was reasonably necessary). Contrary to the concurrence’s suggestion, we believe Gnirke’s condition is “readily susceptible” to this limiting construction because it brings the condition in line with what the district court clearly intended. The concurrence argues that we should remand for the district court to craft a new condition, rather than narrowing the condition on appeal. But both this court and the district court have struggled to describe" }, { "docid": "20033657", "title": "", "text": "restriction upon sexually explicit material may well aid in rehabilitation and protection of the public. Only in the exceptional case, where a ban could apply to any art form that employs nudity, will a defendant’s exercise of First Amendment rights be unconstitutionally circumscribed or chilled.” Id. at 266. However, after discussing the mercurial meaning of the term “pornography,” we held that the provision was (1) overly broad and violated the First Amendment because it “might apply to a wide swath of work ranging from serious art to ubiquitous advertising,” and that it was (2) unconstitutionally vague because “its breadth is unclear.” Id. at 267. Nonetheless, we suggested that “the Constitution would not forbid a more tightly defined restriction on legal, adult pornography, perhaps one that ... borrowed applicable language from the federal statutory definition of child pornography located at 18 U.S.C. § .2256(8).” Id. Several years later, the District Court in Voelker took heed of our suggestion and handed down just such a reformulated restriction relying on 18 U.S.C. § 2256(2). In Voelker, among other holdings, we overturned a lifetime ban on Voelker’s access to sexually explicit material. Voelker had pleaded guilty to possession of child pornography after he was caught briefly exposing his three-year-old daughter’s buttocks over web cam, and later admitted to downloading pornographic images of children. United States v. Voelker, 489 F.3d 139, 142 (3d Cir.2007). The District Court imposed a lifelong term of supervised release which, inter alia, prohibited Voelker from possessing “any materials ... depicting and/or describing sexually explicit conduct as defined at Title 18, United States Code, Section 2256(2).” Id. at 143 (And, see the definition of “sexually explicit conduct” at note 8, supra ). Voelker argued that the condition violated the First Amendment and involved a “greater deprivation of liberty than is reasonably necessary to deter future criminal conduct and protect the public.” Id. at 150. We held in Voelker that a nexus between the restriction and the goals of supervised release was absent. Id. In particular, we explained that “nothing on th[e] record suggests that sexually explicit material involving only adults contributed" }, { "docid": "23431698", "title": "", "text": "F.3d 211, 223-24 (1st Cir.2005) (en banc). For example, if Poitra had timely objected to the imposition of Special Condition 6 before the district court, the court, being alerted to the problem, could have explained the reasons for the condition. With the evidence on the record before us, we believe it would have taken little effort for the district court to do so. But despite the district court’s repeated calls for any questions or objections during sentencing, both before and after the special conditions were imposed, Poitra voiced none. We need not speculate, however, about whether the outcome would necessarily have been different if Poitra had timely objected to Special Condition 6 at trial. The fact remains that relief under plain-error review is an exceptional remedy to be used sparingly and only when justice so requires. Poitra has failed to persuade us that this is such an instance. IV. The judgment of the district court is affirmed. . The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota. . Poitra was required to comply with SOR-NA’s registration requirements because of a 2007 North Dakota juvenile conviction for gross sexual imposition. . Because Poitra failed to object to these statements in the PSR, the district court could assume them to be true and consider them at sentencing. See United States v. Hunter, 505 F.3d 829, 831 (8th Cir.2007). . The special condition imposed in both Wiedower and Boston prohibited the possession of ''pornography,” United States v. Wiedower, 634 F.3d 490, 496 (8th Cir.2011); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007), whereas the special condition at issue here prohibits only the possession of material that describes or depicts \"sexually explicit conduct” as defined at 18 U.S.C. § 2256(2) and 2256(8). Although precisely defining \"pornography” is difficult, see United States v. Simons, 614 F.3d 475, 484 n. 4 (8th Cir.2010), we note that the special condition at issue here is arguably more narrow than a blanket prohibition on all forms of “pornography,” compare United States v. Loy, 237 F.3d 251, 266-67 (3d Cir.2001) (holding that" }, { "docid": "12767274", "title": "", "text": "Wiedower, 634 F.3d 490, 496-97 (8th Cir.2011); Thompson, 653 F.3d at 693-96; United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007); United States v. Ristine, 335 F.3d 692, 694 (8th Cir.2003). Here, given the obvious relationship between the child pornography offense, Deatherage’s likely abuse of young children, and his sordid affair with Alford, the district court did not abuse its discretion by banning possession of all sexually oriented materials during his ten years of supervised release. B. Deatherage next argues that Special Condition 5 is an unreasonable restriction on his important rights to use computer devices and to access the internet because he only used his computer to receive and possess child pornography, like the defendants in Wiedower, 634 F.3d at 497, and in Orame, 422 F.3d at 733. It is true that Deatherage did not use computers to produce or distribute child pornography, but computer use and internet access were central to his child pornography offense as well as his sexual relationship with Alford. The district court learned at the earlier detention hearing that Deatherage had violated a condition of pretrial release that he have no internet access by accessing his “MySpace” page (according to defense counsel, because a friend accessed Deatherage’s MySpace account, again blaming a violation on someone else). Deatherage argues that, under this condition, he “simply will not be able to function in society while on supervision.” But this contention ignores the court’s explanation that the “ban” will be limited, if he so desires, to installing approved computer monitoring devices and consenting to unannounced examination of his computers and storage devices. We have repeatedly upheld limited conditions on computer usage and internet access that were related to the offense or to the defendant’s history. See United States v. Morais, 670 F.3d 889, 895-97 (8th Cir. 2012); United States v. Mayo, 642 F.3d 628, 632-33 (8th Cir.2011); Stults, 575 F.3d at 850, 855-56; Bender, 566 F.3d at 750-52; Boston, 494 F.3d at 668; Ristine, 335 F.3d at 696. Condition 5 was not an abuse of the court’s discretion. C. Deatherage next argues the district court committed" }, { "docid": "23190674", "title": "", "text": "and narrower than the conditions in Simons and Siegel. It is broader because it prohibits patronage as well as possession. But its definition of “sexually explicit conduct” is narrower than the blanket definition of \"nudity” in those cases. . The concurrence incorrectly suggests that our conclusion conflicts with United States v. Mefford, 711 F.3d 923 (8th Cir.2013), United States v. Deatherage, 682 F.3d 755 (8th Cir.2012), and United States v. Thielemann, 575 F.3d 265 (3d Cir.2009). As in Daniels and Rearden, the conditions in Deatherage and Thielemann did not involve the restriction that the probationer not patronize any place where sexually explicit materials are available. See Deatherage, 682 F.3d at 762; Thielemann, 575 F.3d at 270. As we have explained, this part of Gnirke's condition vastly expands its scope. In Mefford, the district court imposed the following two special conditions: (1) \"Defendant shall not access, view, possess, or have under his control any pornography, including any material that depicts or alludes to sexual activity, or sexually explicit conduct as defined by 18 U.S.C. § 2256(2)”; and (2) \"Defendant shall not enter any location where pornography, erotica, or adult entertainment can be obtained or viewed.” Mefford, 711 F.3d at 926. In upholding these conditions, the Eighth Circuit explained: \"The district court intended that Mefford only be prohibited from possessing or obtaining pornography. ... The district court explained that these 'are limited restrictions that serve the purpose of [§ ] 3553(a) while preserving the Defendant’s right to view and/or possess non-obscene material that may contain nudity.’ ” Id. at 927. In other words, the court upheld the condition because it understood it to be limited to what is commonly understood as pornography. See id. at 928. Here, we similarly uphold Gnirke's condition as substantively reasonable when construed as the district court intended. . The Supreme Court's decision in Miller v. California concerned obscenity but recognized that \"[t]he material we are discussing in this case is more accurately defined as ‘pornography’ or 'pornographic materia! ” because that case concerned sex-related obscenity. 413 U.S. 15, 18 n. 2, 93 S.Ct. 2607, 37 L.Ed.2d 419" }, { "docid": "20033658", "title": "", "text": "holdings, we overturned a lifetime ban on Voelker’s access to sexually explicit material. Voelker had pleaded guilty to possession of child pornography after he was caught briefly exposing his three-year-old daughter’s buttocks over web cam, and later admitted to downloading pornographic images of children. United States v. Voelker, 489 F.3d 139, 142 (3d Cir.2007). The District Court imposed a lifelong term of supervised release which, inter alia, prohibited Voelker from possessing “any materials ... depicting and/or describing sexually explicit conduct as defined at Title 18, United States Code, Section 2256(2).” Id. at 143 (And, see the definition of “sexually explicit conduct” at note 8, supra ). Voelker argued that the condition violated the First Amendment and involved a “greater deprivation of liberty than is reasonably necessary to deter future criminal conduct and protect the public.” Id. at 150. We held in Voelker that a nexus between the restriction and the goals of supervised release was absent. Id. In particular, we explained that “nothing on th[e] record suggests that sexually explicit material involving only adults contributed in any way to Voelker’s offense, nor is there any reason to believe that viewing such material would cause Voelker to reoffend.” Id. at 151 (emphasis added). We do not read our precedents as foreclosing the use of conditions banning access to sexually explicit adult materials, particularly when children are victims and are victimized sexually by adults as a means to gratify adult desires. Rather, Loy stood for the proposition that a blanket ban on “all forms of pornography” may be constitutionally infirm, but that more limited provisions “borrowing] applicable language from the federal statutory definition of child pornography,” Loy, 237 F.3d at 267, are permissible. Whatever may be the parameters of “pornography,” see id. at 263-65, the present record transcends the characterization of mere pornography. Here, the record reveals explicit child exploitation and victimization by Thielemann in order to satisfy his sexual appetite for adult men. Unlike in Voelker, there is overwhelming evidence in this record to conclude that Thielemann’s exposure to sexual material, albeit involving only adults, will contribute to future offenses by" }, { "docid": "20033656", "title": "", "text": "a clear nexus to the goals of supervised release. United States v. Loy, 237 F.3d 251, 267 (3d Cir.2001). However, “there are First Amendment implications for a ban that extends to explicit material involving adults.” Voelker, 489 F.3d at 151. When a ban restricts access to material protected by the First Amendment, courts must balance the § 3553(a) considerations “against the serious First Amendment concerns endemic in such a restriction.” Id,. It is evident that the District Court’s restriction in this case would protect children from the predatory conduct of Thielemann and thus could contribute to Thielemann’s rehabilitation. Accordingly, the purposes served by the Special Condition far outweigh any Constitutional concerns raised in Loy and Voelker. In Loy, we rejected a condition which prohibited Loy from possessing pornography. Loy had pleaded guilty to receipt of child pornography. His terms of supervised release included a provision prohibiting him from possessing “all forms of pornography, including legal adult pornography.” Loy, 237 F.3d at 253. We noted that restrictions on sexual materials were generally permissible because “almost any restriction upon sexually explicit material may well aid in rehabilitation and protection of the public. Only in the exceptional case, where a ban could apply to any art form that employs nudity, will a defendant’s exercise of First Amendment rights be unconstitutionally circumscribed or chilled.” Id. at 266. However, after discussing the mercurial meaning of the term “pornography,” we held that the provision was (1) overly broad and violated the First Amendment because it “might apply to a wide swath of work ranging from serious art to ubiquitous advertising,” and that it was (2) unconstitutionally vague because “its breadth is unclear.” Id. at 267. Nonetheless, we suggested that “the Constitution would not forbid a more tightly defined restriction on legal, adult pornography, perhaps one that ... borrowed applicable language from the federal statutory definition of child pornography located at 18 U.S.C. § .2256(8).” Id. Several years later, the District Court in Voelker took heed of our suggestion and handed down just such a reformulated restriction relying on 18 U.S.C. § 2256(2). In Voelker, among other" }, { "docid": "23431694", "title": "", "text": "(8th Cir.2009); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007); United States v. Ristine, 335 F.3d 692, 694-95 (8th Cir.2003). Although none of Poitra’s past offenses have actually involved the use of pornography, such a direct connection is not necessary. An imposed condition of supervised release need only be reasonably related to the section 3553(a) factors. 18 U.S.C. § 3583(d)(1). Prohibiting Poitra’s possession of material that depicts or describes sexually explicit conduct is reasonably related to the “nature and circumstances” of Poitra’s pri- or sexual offenses against minors and to the goal of “protecting] the public from further crimes.” 18 U.S.C. § 3553(a)(1); see also Demers, 634 F.3d at 985 (concluding that a defendant’s “offense and history, including his prior conviction for sexual abuse,” made it unlikely that the imposition of a pornography ban without individualized findings affected the defendant’s substantial rights). The relationship between child pornography and the sexual abuse of children is well documented. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 263, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (O’Connor, J., concurring in part and dissenting in part) (explaining that actual and virtual images of child pornography “whet the appetites of child molesters”); S.Rep. No. 104-358, at 2 (finding that child pornography “is often used as part of a method of seducing other children into sexual activity” and that the “use of child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer”). Moreover, we have previously upheld prohibitions on the possession of adult pornography even if a defendant’s prior sexual offenses have involved children rather than adults. See, e.g., United States v. Wiedower, 634 F.3d 490, 497 (8th Cir.2011); United States v. Boston, 494 F.3d 660, 668 (8th Cir.2007). We reached these conclusions because preventing a defendant — who has a demonstrated sexual interest in children — from possessing all sexually explicit material is reasonably related to preventing the defendant from committing sexual offenses in the future. See Wiedower, 634 F.3d at 497 (upholding a" }, { "docid": "23190673", "title": "", "text": "And we note that the exercise of discretion by Gnirke’s probation officer and the district court in applying the revised condition will be subject to judicial review to the same extent as other conditions of supervised release. CONCLUSION Construed in the manner discussed in the previous section, the district court’s imposition of the special condition restricting Gnirke’s access to sexually explicit materials is AFFIRMED. . This was a federal crime because it occurred on the marine base. 18 U.S.C. § 13. . Lascivious is defined as \"tending to excite lust; lewd; indecent; obscene.” Black’s Law Dictionary (9th ed.2009). . Contrary to the concurrence’s suggestion, we do not conclude that the condition sweeps to broadly because we \"equat[e] tire district court’s use of 'sexually explicit conduct' with 'pornography.' ” Rather, as we have explained, we conclude the condition sweeps too broadly because it defines \"sexually explicit conduct” with reference to 18 U.S.C. § 2256(2) and prohibits Gnirke from patronizing places where materials depicting such conduct may be found. . The special condition here is both broader and narrower than the conditions in Simons and Siegel. It is broader because it prohibits patronage as well as possession. But its definition of “sexually explicit conduct” is narrower than the blanket definition of \"nudity” in those cases. . The concurrence incorrectly suggests that our conclusion conflicts with United States v. Mefford, 711 F.3d 923 (8th Cir.2013), United States v. Deatherage, 682 F.3d 755 (8th Cir.2012), and United States v. Thielemann, 575 F.3d 265 (3d Cir.2009). As in Daniels and Rearden, the conditions in Deatherage and Thielemann did not involve the restriction that the probationer not patronize any place where sexually explicit materials are available. See Deatherage, 682 F.3d at 762; Thielemann, 575 F.3d at 270. As we have explained, this part of Gnirke's condition vastly expands its scope. In Mefford, the district court imposed the following two special conditions: (1) \"Defendant shall not access, view, possess, or have under his control any pornography, including any material that depicts or alludes to sexual activity, or sexually explicit conduct as defined by 18 U.S.C. § 2256(2)”;" }, { "docid": "8395735", "title": "", "text": "be proscribed. See Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The mercurial test for defining obscenity is set forth in Miller v. California: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (internal quotation marks and citations omitted). It is likewise undisputed that “nudity alone is not enough to make material legally obscene.” Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). “[W]here a ban could apply to any art form that employs nudity, ... a defendant’s exercise of First Amendment rights [is] unconstitutionally circumscribed or chilled.” United States v. Loy, 237 F.3d 251, 266 (3d Cir.2000); see also United States v. Simons, 614 F.3d 475, 483 (8th Cir.2010) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)). Guided by this principle, we recently invalidated a special condition of supervised release prohibiting the defendant, a registered sex offender, from possessing “any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material.” Simons, 614 F.3d at 483. We were concerned with the breadth of such a provision, which, if applied mechanically, would prohibit the defendant from “viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo’s David, or Botticelli’s Birth of Venus, all of which depict nudity.” Id. We also rejected the suggestion, urged by the government, that we could entrust the task of curing constitutional infirmity for each individual application of the condition to the probation office. Id. at 485. Our decision in Simons alone would be fatal to special condition 15. The language of special provision 15" }, { "docid": "23190668", "title": "", "text": "human interest and public concern.” Id. Applied literally, the language of the condition would prevent Gnirke from viewing Oscar-winning films like American Beauty and Brokeback Mountain, television shows like The Wire, or sexually explicit works of art that appear in museums; yet such non-pornographie materials receive full protection under the First Amendment. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Because the condition also prevents Gnirke from patronizing places where such materials are available, the burden it imposes extends well beyond possession of what is commonly understood as “pornography” and makes it much more likely that Gnirke will unwittingly violate the condition. The government has not made any specific showing why Gnirke’s access to non-pornographic depictions of adults must be restricted in order to serve the purposes of supervised release, and it is not apparent from the record; therefore, we conclude that the condition as written deprives Gnirke of more liberty than is reasonably necessary. Our conclusion is consistent with the reasoning of our earlier cases, and with decisions from other circuits. In United States v. Simons, the Eighth Circuit recognized that special conditions that prohibit possession of pornographic materials “have often withstood First Amendment challenges” but nonetheless held that a condition prohibiting the defendant “from possessing any material that depicts nudity” involved a “greater deprivation of liberty than [was] reasonably necessary.” 614 F.3d 475, 483, 485 (8th Cir.2010). And the Seventh Circuit in United States v. Siegel, citing Simons, remanded for a district court to reconsider a similar condition restricting the possession of materials containing nudity. 753 F.3d 705, 712-13 (7th Cir.2014). The Seventh Circuit suggested that the prohibition be rephrased to encompass only “material that depicts nudity in a prurient or sexually arousing manner,” which accords with the commonly understood definition of pornography. Id. at 713. D. Limitation on the special condition. The district court intended to restrict Gnirke’s access to “child and adult pornography,” but by applying the definition in 18 U.S.C. § 2256(2) to depictions of adult sexual activity, the condition deprives Gnirke of more liberty" }, { "docid": "23105720", "title": "", "text": "and they have often withstood First Amendment challenges. See, e.g., Stults, 575 F.3d at 854-55 (upholding, on plain error review, a child-pornography defendant’s ban on “accessing, viewing, or possessing any pornographic sexually oriented or sexually stimulating materials”) (quotation and alteration omitted); Boston, 494 F.3d at 667-68 (holding that district court did not abuse its discretion in imposing a ban on “view[ing] or possessing] any form of pornography, sexually stimulating or sexually oriented material”); Ristine, 335 F.3d at 694-95 (upholding, on plain error review, a ban on possessing pornographic materials for a defendant convicted of receiving child pornography). The portion of special condition 13 that prohibits Simons from possessing or viewing material that depicts or alludes to sexual activity or depicts sexually arousing material is very similar to the conditions we upheld in Stults and Boston. As a whole, however, special condition 13 goes beyond those cases, prohibiting Simons from possessing any material that depicts nudity. By its terms, it would prohibit Simons from viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo’s David, or Botticelli’s Birth of Venus, all of which depict nudity. To our knowledge, the Seventh Circuit is the only federal court to have addressed a special condition similar to the one at issue here. In United States v. Holm, 326 F.3d 872 (7th Cir.2003), the defendant had pled guilty to possession of child pornography. Id. at 874. In addition to challenging the constitutionality of his conviction, the defendant challenged a number of his conditions of supervised release, one of which prohibited “possession of material containing nudity.” Id. His discussion of the supervised release issues on appeal, however, was “brief to the point of brushing up against full-blown waiver,” as the “entire discussion of the subject [was] contained within slightly more than a single page” of his brief, and included “no citations to additional material in the record, beyond the court’s judgment itself, that might help to illuminate the basic contours of his claims.” Id. at 877. Nevertheless, the court “look[ed] briefly at [the defendant’s] claims” and affirmed the" }, { "docid": "3565358", "title": "", "text": "here. Our conclusion is generally consistent with our sister circuits’ approaches to this challenging area. See, e.g., United States v. Antelope, 395 F.3d 1128, 1141-42 (9th Cir.2005) (striking down as unconstitutionally vague a supervised release condition banning the possession of “any pornographic, sexually oriented or sexually stim ulating materials”); United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002) (striking down as unconstitutionally vague a supervised release condition banning the possession of “any pornography,” including legal adult pornography, because “a probationer cannot reasonably understand what is encompassed by a blanket prohibition on ‘pornography’ ”); United States v. Loy, 237 F.3d 251, 265 (3d Cir.2001) (striking down as unconstitutionally vague a supervised release condition banning the possession of “all forms of pornography, including legal adult pornography”); Farrell v. Burke, 449 F.3d 470, 486 (2d Cir.2006) (noting that the Second Circuit has “strongly suggested] that the term ‘pornography’ is inherently vague for defendants whose statute of conviction does not define it.” (citing United States v. Simmons, 343 F.3d 72 (2d Cir.2003)); ' United States v. Cabot, 325 F.3d 384 (2d Cir.2003)); see also United States v. Perazza-Mercado, 553 F.3d 65, 74-76 (1st Cir.2009) (vacating a condition of supervised release that banned the “possession of any kind of pornographic material” because the district court did not provide an explanation for this condition, and “no evidence in the record ... justifies the ban”); cf. United States v. Armel, 585 F.3d 182, 185-87 (4th Cir.2009) (holding that sentencing court abused its discretion by imposing an unexplained three-year prohibition on adult “pornography” where defendant had been convicted of threatening federal officials). But see United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007) (upholding the breadth of the supervised release condition in part because the defendant was found guilty of producing child pornography); United States v. Phipps, 319 F.3d 177, 192-93 (5th Cir.2003) (acknowledging that the ban on “sexually oriented or sexually stimulating materials” is “somewhat vague,” but narrowing it so that it does not reach magazines and so that “the prohibition on patronizing sexually oriented establishments refers ... to places such as strip clubs and" }, { "docid": "23105719", "title": "", "text": "that the condition is unconstitutionally vague and overbroad, infringing on what he alleges to be his First Amendment right to view nonobseene material that contains nudity. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); see also United States v. Loy, 237 F.3d 251, 261-62, 266-67 (3d Cir.2001) (holding that a prohibition on possessing pornography violated the defendant’s First Amendment rights because it “might apply to a wide swath of work ranging from serious art to ubiquitous advertising” and “to any art form that employs nudity”); cf. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (noting that “obscene material is unprotected by the First Amendment”). Simons also argues that the condition grants too much discretion to the probation officer in deciding what constitutes “sexual activity” and “sexually arousing material,” and is not sufficiently related to his crime, his criminal history, or the sentencing purposes of 18 U.S.C. § 3583(d)(1). Prohibitions on the possession of pornographic materials are not unusual special conditions, and they have often withstood First Amendment challenges. See, e.g., Stults, 575 F.3d at 854-55 (upholding, on plain error review, a child-pornography defendant’s ban on “accessing, viewing, or possessing any pornographic sexually oriented or sexually stimulating materials”) (quotation and alteration omitted); Boston, 494 F.3d at 667-68 (holding that district court did not abuse its discretion in imposing a ban on “view[ing] or possessing] any form of pornography, sexually stimulating or sexually oriented material”); Ristine, 335 F.3d at 694-95 (upholding, on plain error review, a ban on possessing pornographic materials for a defendant convicted of receiving child pornography). The portion of special condition 13 that prohibits Simons from possessing or viewing material that depicts or alludes to sexual activity or depicts sexually arousing material is very similar to the conditions we upheld in Stults and Boston. As a whole, however, special condition 13 goes beyond those cases, prohibiting Simons from possessing any material that depicts nudity. By its terms, it would prohibit Simons from viewing a biology textbook or purchasing an art book that contained pictures" }, { "docid": "22202251", "title": "", "text": "Cir.2001); see also United States v. Boston, 494 F.3d 660, 668 (8th Cir.2007) (holding that \"the condition in prohibiting his access to sexually explicit material involving adults is not overly broad” for defendant convicted of producing child pornography in light of his \"history of sexual offenses”). . United States v. Salinas, 480 F.3d 750, 756 (5th Cir.2007) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). . See, e.g., United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir.2008) (reviewing for plain error); Boston, 494 F.3d at 667-68 (reviewing for abuse of discretion). . See Salinas, 480 F.3d at 759. . United States v. Phipps, 319 F.3d 177, 193 (5th Cir.2003). . Id. . 274 F.3d at 167. . Id. at 166-67 (quoting United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994)). . Compare United States v. Stults, 575 F.3d 834, 854-55 (8th Cir.2009) (conducting plain error review and concluding that law was unsettled as to whether the term “pornography” as used in a condition of supervised release was too vague), United States v. Rearden, 349 F.3d 608, 619-20 (9th Cir.2003) (holding that condition prohibiting possession of “sexually explicit conduct” as defined in 28 U.S.C. § 2256(2) “is neither vague or overly broad”), and United States v. Simmons, 343 F.3d 72, 80-83 (2d Cir.2003) (holding that condition prohibiting possession of “pornographic material” gave adequate guidance of what was prohibited in light of the definitions in 28 U.S.C. § 2256 of pornography and sexually explicit conduct), with United States v. Voelker, 489 F.3d 139, 152 (3d Cir.2007) (recounting that a prior decision vacated a ban encompassing legal and illegal pornography because it was found to violate \"due process rights by 'failing to provide [the defendant] with adequate notice of what he may or may not do, chilling First Amendment rights in the process’ ”) (quoting United States v. Loy, 237 F.3d 251, 267 (3d Cir.2001)), and United States v. Antelope, 395 F.3d 1128, 1141-42 (9th Cir.2005) (holding that \"any pornographic, sexually oriented or sexually stimulating materials” was impermissibly vague)." }, { "docid": "13353786", "title": "", "text": "materials solely based on the defendant’s membership in the class of sex offenders, Bender, 566 F.3d at 752, whereas the district court here imposed the ban on pornography after a discussion of Demers’s background and characteristics, including his prior child pornography arrests and domestic battery offenses, citing “the need to curb any tendency you might have to further engage in child pornography efforts or abuses.” Moreover, even were we to find that the district court erred in not conducting a sufficiently individualized determination, that error likely would not “affect[ ] substantial rights,” Davis, 452 F.3d at 994, since Demers’s offense and history, including his prior conviction for sexual abuse, make it unlikely that he could carry his burden of showing that the condition would not have been imposed in any event. Cf. Curry, 627 F.3d at 315 (holding that a condition banning pornography prejudiced the defendant because there was a “reasonable probability” that the condition would not have been imposed had the district court conducted a sufficiently individualized determination, given that the defendant’s conviction was for a “registration offense, not a sexual exploitation offense”). Demers also argues that special condition 7 is overbroad and a greater-than-necessary restriction of his First Amendment rights. In Boston, we upheld an equally-extensive condition against a claim that it was overbroad, noting that “[gjiven [the defendant’s] history of sexual offenses and the desire to deter him from this conduct in the future, the condition in prohibiting his access to sexually explicit material involving adults is not overly broad.” Boston, 494 F.3d at 668; see also Ristine, 335 F.3d at 694-95; (upholding a similar restriction as “appropriately tailored” given the defendant’s “obsession with or addiction to child pornography”). To be sure, we have struck down as overbroad conditions that restrict access to “any material ... that ... alludes to sexual activity,” United States v. Kelly, 625 F.3d 516, 519-22 (8th Cir.2010), or “any material ... that contains nudity,” United States v. Simons, 614 F.3d 475, 483-85 (8th Cir.2010). However, it was the breadth of these restrictions, which potentially prohibited access to “a biology textbook,” id. at" }, { "docid": "23431699", "title": "", "text": "was required to comply with SOR-NA’s registration requirements because of a 2007 North Dakota juvenile conviction for gross sexual imposition. . Because Poitra failed to object to these statements in the PSR, the district court could assume them to be true and consider them at sentencing. See United States v. Hunter, 505 F.3d 829, 831 (8th Cir.2007). . The special condition imposed in both Wiedower and Boston prohibited the possession of ''pornography,” United States v. Wiedower, 634 F.3d 490, 496 (8th Cir.2011); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007), whereas the special condition at issue here prohibits only the possession of material that describes or depicts \"sexually explicit conduct” as defined at 18 U.S.C. § 2256(2) and 2256(8). Although precisely defining \"pornography” is difficult, see United States v. Simons, 614 F.3d 475, 484 n. 4 (8th Cir.2010), we note that the special condition at issue here is arguably more narrow than a blanket prohibition on all forms of “pornography,” compare United States v. Loy, 237 F.3d 251, 266-67 (3d Cir.2001) (holding that a ban on the possession of pornography could apply to \"any art form that employs nudity,” including medical textbooks), with United States v. Wallenfang, 568 F.3d 649, 656-58 (8th Cir. 2009) (clarifying that material depicting \"sexually explicit conduct,” as defined by section 2256, does not include material containing mere nudity alone, but only material that is “sexual in nature” (quotation omitted))." }, { "docid": "23431695", "title": "", "text": "(O’Connor, J., concurring in part and dissenting in part) (explaining that actual and virtual images of child pornography “whet the appetites of child molesters”); S.Rep. No. 104-358, at 2 (finding that child pornography “is often used as part of a method of seducing other children into sexual activity” and that the “use of child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer”). Moreover, we have previously upheld prohibitions on the possession of adult pornography even if a defendant’s prior sexual offenses have involved children rather than adults. See, e.g., United States v. Wiedower, 634 F.3d 490, 497 (8th Cir.2011); United States v. Boston, 494 F.3d 660, 668 (8th Cir.2007). We reached these conclusions because preventing a defendant — who has a demonstrated sexual interest in children — from possessing all sexually explicit material is reasonably related to preventing the defendant from committing sexual offenses in the future. See Wiedower, 634 F.3d at 497 (upholding a prohibition on the possession of adult pornography where defendant displayed only an affinity for child pornography because the condition helped reduce the “chance he will relapse into this dark world”); Boston, 494 F.3d at 668 (concluding that a condition against accessing “any form of pornography, sexually stimulating or sexually oriented material” was not overly broad in light of the defendant’s history of sexual offenses against children and the need to deter his conduct in the future). Here, Poitra has not only demonstrated a sexual interest in children, but he has actually gone so far as to sexually abuse them. See United States v. Johnson, 446 F.3d 272, 283 (2d Cir.2006) (explaining the increased importance of needing to prevent future behavior of a defendant that has previously gone beyond mere access to child pornography and has actually sexually abused children). Therefore, preventing Poitra’s possession of all material that depicts sexually explicit conduct is reasonably related to help ensure that Poitra does not commit a similar act in the future. In summary, we conclude that relief under" }, { "docid": "12767273", "title": "", "text": "that includes the court’s careful findings of fact, little additional explanation was needed to make the need for carefully tailored special conditions “discernable from the record.” A. Turning to the specific conditions at issue, Deatherage first argues that Special Condition 4 was an abuse of the court’s discretion because it includes a ban on adult pornography not supported by individualized findings and imposing a greater deprivation of liberty than necessary. We carefully review broad bans on possessing sexually explicit materials because they implicate important First Amendment rights. See, e.g., United States v. Kelly, 625 F.3d 516, 520-22 (8th Cir.2010). Thus, in United States v. Bender, 566 F.3d 748, 752 (8th Cir.2009), we vacated a broad ban on adult pornography explained only by the district court’s opinion that “a sex offender doesn’t have any business looking at Playboy magazine.” But we have upheld conditions that were obviously relevant to the child pornography offense at issue or to the defendant’s history' and characteristics. See United States v. Anderson, 664 F.3d 758, 768-69 (8th Cir.2012); United States v. Wiedower, 634 F.3d 490, 496-97 (8th Cir.2011); Thompson, 653 F.3d at 693-96; United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007); United States v. Ristine, 335 F.3d 692, 694 (8th Cir.2003). Here, given the obvious relationship between the child pornography offense, Deatherage’s likely abuse of young children, and his sordid affair with Alford, the district court did not abuse its discretion by banning possession of all sexually oriented materials during his ten years of supervised release. B. Deatherage next argues that Special Condition 5 is an unreasonable restriction on his important rights to use computer devices and to access the internet because he only used his computer to receive and possess child pornography, like the defendants in Wiedower, 634 F.3d at 497, and in Orame, 422 F.3d at 733. It is true that Deatherage did not use computers to produce or distribute child pornography, but computer use and internet access were central to his child pornography offense as well as his sexual relationship with Alford. The district court learned at the earlier detention hearing" } ]

[ { "docid": "15180815", "title": "", "text": "he in fact had been knowingly cooperating with the United States government. A conviction for exportation of arms, munitions, or military equipment or services without the required validated export license carries a base offense level of 22, except that a base offense level of 14 applies if “the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.” USSG § 2M5.2. Application Note 1 to this section provides that “[t]he base offense level assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. In the unusual case where the offense conduct posed no such risk,, a downward departure may be warranted.” Hendron argues that'in a sting operation which the government controls, there is no “potential to be harmful” within the meaning of this provision. This issue is apparently one of first impression. Even if we agreed with Hendron’s interpretation of this application note, our agreement would establish only, in the language of the note, that “a downward departure may be warranted,” a determination committed to the unreviewable discretion of a sentencing court unless the court mistakenly believes that it lacks the authority to depart downwardly. See, e.g., United States v. Whittaker, 999 F.2d 38, 43 (2d Cir.1993). In this case, Judge Nickerson explicitly rejected Hendron’s interpretation of the application note, ruling that Hendron’s “knowledge and intent” were decisive, thereby effectively concluding that the application note did not authorize him to make a downward departure. We therefore regard this determination as subject to appellate review. We agree, however, with Judge Nicker-son’s ruling. The sensible interpretation of the application note, in assessing an individual defendant’s eligibility for the extraordinary lenience of a downward departure, is to address the normal potential of the offense conduct as perceived by that defendant. The “offense conduct” in this case included an attempt to sell items on the United States Munitions List to Iraq, a nation which the Secretary of State has designated, pursuant to 22 U.S.C. § 2780(d), to have repeatedly" } ]

[ { "docid": "17657985", "title": "", "text": "United States v. Marinan, 32 F.3d 1209, 1212-13 (7th Cir.1994). The twelfth juror’s assent to the verdict rendered the verdict final. Marinan, 32 F.3d at 1213. Juror testimony regarding the jury’s deliberations is not admissible to impeach the verdict unless an extraneous influence was alleged to have affected the jury. Fed.R.Evid. 606(b); Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 2748, 97 L.Ed.2d 90 (1987); Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 269, 126 L.Ed.2d 220 (1993). The jurors’ comments are barred by Rule 606(b). III. Muthana contends that the district court erroneously applied Guideline § 2M5.2 to his conviction rather than Guideline § 2K2.1. Guideline § 2M5.2(a)(l) establishes a base offense level of twenty-two and applies to offenses involving the “exportation of arms, munitions, or military equipment or services without [a] required validated export license.” The version of Guideline § 2K2.1(a)(7) effective November 1, 1993, establishes a base offense level of twelve and applies to offenses involving unlawful receipt, possession, transportation of, or transactions involving, firearms or ammunition. Mutha-na’s challenge to the district court’s interpretation of the Sentencing Guidelines is a question of law which we review de novo. United States v. Ford, 21 F.3d 759, 765 (7th Cir.1994); United States v. Gaines, 7 F.3d 101, 103 (7th Cir.1993). In United States v. Galvan-Revuelta, 958 F.2d 66, 68-69 (5th Cir.1992), the Fifth Circuit rejected an argument identical to Mutha-na’s. The defendant in Galvan-Revuelta was convicted of exporting 10,181 rounds of various caliber ammunition in violation of 22 U.S.C. § 2778(b)(1)(A). Id. at 67. The court held that the district court correctly applied Guideline § 2M5.2 to the defendant’s conviction rather than Guideline § 2K2.1. Id. at 69. We agree with the Fifth Circuit’s conclusion that Guideline § 2M5.2 properly applies to violations of 22 U.S.C. § 2778 involving ammunition. The statutory index of the Guidelines, United States Sentencing Commission, Guidelines Manual, App. A (Nov.1993), states that Guideline § 2M5.2 is the only Guideline applicable to offense conduct in violation of 22 U.S.C. § 2778. Muthana was convicted" }, { "docid": "21894905", "title": "", "text": "not to respond to any letter without being certain of its authenticity. As for Reid’s knowledge of the objective of the anti-helicopter conspiracy, we need only point to her arrangement of and participation in the telephone conversation of December 15, 1988, in which Quigley requested Johnson’s help in developing a missile system to destroy British helicopters. That Reid introduced Johnson to Quigley on the occasion of this exchange and, thereafter, corresponded with Quigley regularly on the subject of her joining a rocketry society so that she might learn to operate rocket motors, would permit a reasonable jury to infer her knowledge and approval of the proposed bombing of the helicopters at Aldergrove. Given the profusion of evidence of Reid’s direct participation in the conspiracies charged, we cannot say that the jury unreasonably concluded that she understood and assented to their underlying purposes. See Zannino, 895 F.2d at 9. VIII. The Johnson and Quigley Sentences Johnson and Quigley attack the legality of their sentences on several fronts. We consider each in turn. A. Sophisticated Weaponry The government and appellants agree that U.S.S.G. § 2M5.2, “Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License,” was the applicable guideline for determining the sentences of Johnson and Quigley on Counts One and Two. Johnson, however, on behalf of himself and Quigley, objects to the district court’s determination that appellants’ conduct involved a conspiracy to export “sophisticated weaponry” such that a base offense level of 22, rather than 14, was appropriate. The gist of appellants’ argument is that the “defense articles” forming the basis of the illegal exportation offense charged in Count One may not be classified as “sophisticated” or, for that matter, as “weaponry,” since “virtually every item [appellants were] alleged to export was readily available at hobby shops and consumer-oriented electronics stores, and ... had common, nonmilitary applications.” Johnson Opening Brief at 38. We are unpersuaded, to say the least, by appellants’ cast of the facts. It is precisely their skill in making extraordinary the ordinary that warrants a finding of “sophistication” under § 2M5.2. As the Probation" }, { "docid": "5449787", "title": "", "text": "defined. As such, he argues that the two-tier classification set up by the United States Munitions List, 22 C.F.R. § 121 et seq., pursuant to provisions of the Arms Export Control Act, 22 U.S.C. § 2778, should be adopted to interpret this term. As interpreted, “sophisticated weaponry” would then be those items designated on the Munitions List as “significant military equipment.” See 22 C.F.R. §§ 120.19(a), 121.1(b). He concludes by demonstrating that the items listed in the indictment are in Category VIII(j) of the Munitions List, and are not designated as significant military equipment. The F-4 Phantom itself, listed in Category VIII(a), is so designated. Before turning directly to interpretation of this term, we note that the only decision to analyze § 2M5.2, either before or after its amendment, is an unpublished district court decision. See United States v. Behrmann, No. 89-0445 (D.D.C. May 10, 1990) (available at 1990 U.S.Dist. LEXIS 5658). In Behrmann, the district court was squarely faced with construction of the phrase “if sophisticated weaponry was involved” as applied to five gyroscopes capable of both military and non-military application. The district court ruled that the guideline was ambiguous, and that the rule of lenity demanded construction in favor of the defendant. See United States v. Bat-chelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755 (1979); Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). The district court went further, noting that the government failed to prove by a preponderance of the evidence that the gyroscopes in question were “sophisticated weaponry”— however that term was to be defined — or that sophisticated weaponry was either involved or was closely linked to the gyroscopes. The district court found instead that the only known use of the model gyroscope involved was the stabilization of antennas on vessels used to track launches from the Kennedy Space Center. That is not this case. The government’s proof demonstrated that the venturi heater is designed as a structure control item located in the vertical fin of the F-4 Phantom, its purpose being to protect" }, { "docid": "5763929", "title": "", "text": "not merely that export would be contrary to law. He also asserts that it would be impossible for a defendant to “willfully violate” a statute of which he was unaware. The district court might have better instructed the jury had it instructed both times as the defendant suggests; as noted, its initial instruction was of that tenor. But we think it an excess of formalism to suggest that there is a functional difference between the two charges. If the defendant knew that the export was in violation of the law, we are hard pressed to say that it matters what the basis of that knowledge was. There may be some cases in which one approach will fit better than the other. Certainly knowledge of the licensing requirement will likely be the focal point in most cases, rendering the dispute somewhat academic. But we think that the court did not err in instructing the jury that it could convict if it found that defendant knew that the export was illegal. See Murphy, 852 F.2d at 7. Thus, we conclude that the district court’s supplemental charge was not error, and consequently we hold that it was not plain error. IV. THE SENTENCING ISSUES A. Was “Sophisticated Weaponry” Involved? Section 2M5.2 of the Sentencing Guidelines, entitled “Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export Li cense,” now modified, provided at the relevant time for two distinct base offense levels for the covered offenses. If “sophisticated weaponry” was involved, the base offense level was 22. Otherwise it was 14. Following a sentencing hearing, the district court found that the optical receivers and infra-red domes constituted sophisticated weaponry, and fixed the base offense level at 22. Defendant argues that the government failed to prove that these items were sophisticated weaponry, posing the issue as one of law (subject to plenary review), rather than one of fact (subject to a clearly erroneous standard). Defendant argues by way of comparison to other items on the Munitions Control List, and asserts that, by “contemporary military or scientific standards,” neither the optical receivers nor" }, { "docid": "17657988", "title": "", "text": "Note are not an exclusive list of the defense articles subject to Guideline § 2M5.2. Galvan-Revuelta, 958 F.2d at 68. The Application Note list is merely exemplary of the items found in the United States Munitions List, which spans almost nine pages of condensed print in the Code of Federal Regulations. And the ammunition found in Muthana’s parcels is included within the Munitions List. 22 C.F.R. § 121.1 Category III. Muthana next contends that, even if Guideline § 2M5.2 applies to his conviction, the district court erred by applying Guideline § 2M5.2(a)(l) rather than Guideline § 2M5.2(a)(2). Guideline § 2M5.2(a)(2) establishes a base offense level of fourteen “if the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.” Muthana’s offense involved approximately 56,000 rounds of ammunition, so Guideline § 2M5.2(a)(2) does not apply. Muthana also challenges the district court’s discretionary refusal to depart downward from the Guidelines because his offense conduct posed no risk of harm to a security or foreign policy interest of the United States. See U.S.S.G. § 2M5.2, comment, (n. 1). We have no jurisdiction over a district court’s discretionary refusal to depart downward from the Guidelines. E.g., United States v. Wright, 37 F.3d 358, 360-61 (7th Cir.1994). Muthana’s final challenge to his sentence is that the government engaged in “sentencing entrapment,” more appropriately referred to as sentencing manipulation, by allowing him to continue to purchase firearms and ammunition from Shore Galleries. Sentencing manipulation, as distinct from a claim of outrageous government conduct — a theory of due process unavailable to criminal defendants in this circuit, United States v. Boyd, 55 F.3d 239, 241-42 (7th Cir.1995)— occurs “when the government engages in improper conduct that has the effect of increasing a defendant’s sentence.” United States v. Okey, 47 F.3d 238, 240 (7th Cir.1995). Although it is an open question whether these claims are even cognizable in this circuit, id., Muthana’s claim is completely without merit. The government had absolutely nothing to do with his firearms and ammunition purchases. Muthana essentially asserts that the government should have" }, { "docid": "17657987", "title": "", "text": "of violating 22 C.F.R. § 127.2(a) (1993), a Department of State regulation issued under 22 U.S.C. § 2778. Guideline § 2M5.2 therefore applies to his conviction unless this is an “atypical case” in light of the offense conduct and the statute. U.S.S.G.App. A intro, comment.; see Galvan-Revuelta, 958 F.2d at 68. This ease is not atypical because Muthana’s offense involved only ammunition. Application Note One of Guideline § 2M5.2 makes clear that the Sentencing Commission intended the Guideline to apply to these offenses: Under 22 U.S.C. § 2778, the President is authorized ... to control exports of defense articles and defense services that he deems critical to a security or foreign policy interest of the United States. The items subject to control constitute the United States Munitions List, which is set out in 22 C.F.R. Part 121.1. Included in this list are such things as military aircraft, helicopters, artillery, shells, missiles, rockets, bombs, vessels of war, explosives, military and space electronics, and certain firearms. Contrary to Muthana’s position, the items set forth in the Application Note are not an exclusive list of the defense articles subject to Guideline § 2M5.2. Galvan-Revuelta, 958 F.2d at 68. The Application Note list is merely exemplary of the items found in the United States Munitions List, which spans almost nine pages of condensed print in the Code of Federal Regulations. And the ammunition found in Muthana’s parcels is included within the Munitions List. 22 C.F.R. § 121.1 Category III. Muthana next contends that, even if Guideline § 2M5.2 applies to his conviction, the district court erred by applying Guideline § 2M5.2(a)(l) rather than Guideline § 2M5.2(a)(2). Guideline § 2M5.2(a)(2) establishes a base offense level of fourteen “if the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.” Muthana’s offense involved approximately 56,000 rounds of ammunition, so Guideline § 2M5.2(a)(2) does not apply. Muthana also challenges the district court’s discretionary refusal to depart downward from the Guidelines because his offense conduct posed no risk of harm to a security or foreign policy interest of" }, { "docid": "13419854", "title": "", "text": "The probation officer prepared and filed a presentence investigation report (PSI) for each defendant. The offense level computation was the same for all defendants. In the PSIs, the probation officer noted that Count I charged a conspiracy with four objects. Citing Application Note 9 to § 3D1.2 of the Sentencing Guidelines, the probation officer treated Count I “as if it were four counts, each charging conspiracy to commit one of the substantive offenses.” (PSI at ¶ 56). Two of the objects involved violations of the transporting and receiving statute and two involved violations of the Arms Export Control Act. Section 2K1.6 of the Guidelines provides a base level of 18 for transporting or receiving explosives with felonious intent. Section 2M5.2 provides a base level of 22 for the exportation of arms without the required export licenses. The probation officer grouped these offenses together pursuant to § 3D 1.2(b) and assigned a base offense level of 22, concluding that 22 U.S.C. § 2778 was the most serious of the offenses in the group. See U.S.S.G. § 3D1.2(a). The defendants objected to the probation officer’s use of a base offense level of 22. They argued that the evidence was insufficient to support a conviction for conspiracy to violate the Arms Export Control Act and that the offense level for violations of 22 U.S.C. § 2778 was therefore inappropriate to determine their sentences. They insisted that the base offense level of 18 for violations of the transporting and receiving statute was appropriate. The defendants’ sentencing hearing was conducted in two parts and before two judges. The first portion of the defendants’ sentencing hearing was held on February 22, 1991, before Judge Jose A. Gonzalez, who had presided over the defendants’ trial. Judge Gonzalez found that the offense level for each defendant was 22, and that the guideline range was 41 to 51 months. He then overruled defense objections to the PSIs. Because the defendants complained that they had not had an opportunity to review and respond to the probation officer’s second addendum to the PSIs, Judge Gonzalez agreed to proceed with their sentencing" }, { "docid": "20472025", "title": "", "text": "sentence. We review the district court’s interpretation of the Guidelines de novo. United States v. Garcia-Guerrero, 635 F.3d 435, 438 (9th Cir.2011). The relevant Guideline, U.S. Sentencing Guidelines Manual § 2M5.2, “Exportation of Arms, Munitions, or Military-Equipment or Services Without Required Validated Export License,” reads: “(a) Base Offense Level: (1) 26, except as provided in subdivision (2) below; (2) 14, if the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.” PVS-14 devices are not “non-fully automatic small arms” within the plain meaning of U.S. Sentencing Guidelines Manual § 2M5.2(a)(2). First, the examples listed — “rifles, handguns, or shotguns” — are instructive as to the meaning of non-fully automatic small arms, and those examples are not similar to PVS-14 devices. See U.S. Sentencing Guidelines Manual § 2M5.2(a)(2). Second, the modifier “non-fully automatic” suggests that the relevant arms are firearms, a description which excludes PVS-14 devices. See generally Webster’s Third New International Dictionary 148 (1986) (defining “automatic,” inter alia, as “of a firearm ”). Consequently, PVS-14 devices do not qualify for the base offense level of fourteen. The district court correctly calculated Carper’s sentence using the base offense level of twenty-six for PVS-14 devices. A second possible issue is whether the district court abused its discretion by not departing from the Guidelines on policy grounds in imposing Carper’s sentence. Carper failed to raise this issue before the district court, so we review for plain error. See United States v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir.2010). The district court did not abuse its discretion by following the Guidelines. A district court may vary from the Guidelines if it disagrees with them on policy grounds and the Sentencing Commission fails to exercise “its characteristic institutional role” in their development. Kimbrough v. United States, 552 U.S. 85, 109-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). There is, however, no obligation for a district court to do so. See United States v. Henderson, 649 F.3d 955, 964-65 (9th Cir. 2011). The district court here gave no indication that it disagreed with U.S. Sentencing" }, { "docid": "22894101", "title": "", "text": "range is applicable. Section 2778(c). See note 2 supra. He asserts that he may have been eligible for a three-level reduction under U.S.S.G. § 2X1.1, entitled “Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)”, because it was only an attempt to carry out the prohibited behavior. However, the government argues that U.S.S.G. § 2Xl.l(b)(l) does not, and would not, apply to Castro-Trevino’s case for two distinct reasons: (a) this provision only applies to attempts which are not included within the offense guideline; and (b) attempts do not warrant a three-level reduction when “defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant’s control.” U.S.S.G. § 2X1.1(b)(1). First, the government contends that § 2M5.2 includes attempts to commit a violation of 22 U.S.C. § 2778(c) since it covers the entire offense, which by its terms includes all the regulations issued thereunder. As discussed supra, 22 C.F.R. § 127.1(a)(1), issued under 22 U.S.C. § 2778(a), provides: “It is unlawful to export or attempt to export from the United States any defense article ... for which a license or written approval is required ....” Therefore, it is contended, § 2X1.1 does not apply to this offense because the attempt is already included within the ambit of § 2M5.2 since it is, by way of 22 C.F.R. § 127.1, a primary violation of the statute dealt with by § 2M5.2. We need not resolve this contention, because we agree with the government’s second contention, namely that the sole reason Castro-Trevino was not able to export the ammunition was due to his apprehension by ICE agents at the border. His voluntary confession did not cause his apprehension or interruption of the event because ICE agents had been monitoring his purchases that day. Thus, under § 2X1.1(b)(1) the three level reduction is not available. Additionally, contrary to Castro-Trevino’s assertions, U.S.S.G. § 2Xl.l(b)(2) does not apply because the indictment does not allege conspiracy and conspiracy is not a lesser-included offense of the offense charged. Finally, Castro-Trevino received the lowest sentence within the applicable guideline" }, { "docid": "21894906", "title": "", "text": "government and appellants agree that U.S.S.G. § 2M5.2, “Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License,” was the applicable guideline for determining the sentences of Johnson and Quigley on Counts One and Two. Johnson, however, on behalf of himself and Quigley, objects to the district court’s determination that appellants’ conduct involved a conspiracy to export “sophisticated weaponry” such that a base offense level of 22, rather than 14, was appropriate. The gist of appellants’ argument is that the “defense articles” forming the basis of the illegal exportation offense charged in Count One may not be classified as “sophisticated” or, for that matter, as “weaponry,” since “virtually every item [appellants were] alleged to export was readily available at hobby shops and consumer-oriented electronics stores, and ... had common, nonmilitary applications.” Johnson Opening Brief at 38. We are unpersuaded, to say the least, by appellants’ cast of the facts. It is precisely their skill in making extraordinary the ordinary that warrants a finding of “sophistication” under § 2M5.2. As the Probation Department suggested, in a report adopted by the district court, “the ability to take readily available items and ... using knowledge and skills gained through extensive education and on the job training ... rework them so that they become a radio controlled detonating device,” underscores the sophistication of appellants’ handiwork. See also United States v. Nissen, 928 F.2d 690, 694 (5th Cir.1991) (components “ ‘involved’ in a tangible way with ‘sophisticated weaponry,’ ” are “sophisticated weaponry” within meaning of § 2M5.2). When reviewing a sentence under the guidelines, we accept the factual findings of the district court unless they are clearly erroneous. See 18 U.S.C. § 3742(e); United States v. Pilgrim Market Corp., 944 F.2d 14, 15-16 (1st Cir.1991). There was no error in the district court’s finding that appellants dealt in “sophisticated weaponry.” B. The Upward Departure Appellants also argue that the district court wrongly departed upward from the guidelines sentencing range by considering factors that are not, according to appellants, “aggravating circumstances” permitting such departures. See U.S.S.G. § 5K2.0. At disposition, the district" }, { "docid": "5449786", "title": "", "text": "are similarly unavailing where the defendant is actively and willingly participating in the criminal conduct leading to his arrest. United States v. Kaufman, 858 F.2d 994, 1002 (5th Cir.1988); Arteaga, 807 F.2d at 427 (“[T]he outrageous-conduct defense requires not only government overinvolvement in the charged crime but a passive role by the defendant as well.”). Accordingly, Nissen’s claim of a due process violation is meritless. B The guideline applicable to Nissen’s offense is U.S.S.G. § 2M5.2. While this guideline was amended effective November 1, 1990, at the time of Nissen’s sentencing, § 2M5.2 provided for a base offense level of 22 “if sophisticated weaponry was involved.” Otherwise, the base offense level was 14. The district court reasoned that, even though the venturi heater is not in itself a sophisticated weapon, sophisticated weaponry was involved — the F-4 Phantom aircraft for which the heater was designed. The district court chose the base offense level of 22 for Nissen’s crime. Nissen argues that this choice was error. He points out that the term “sophisticated weaponry” is not defined. As such, he argues that the two-tier classification set up by the United States Munitions List, 22 C.F.R. § 121 et seq., pursuant to provisions of the Arms Export Control Act, 22 U.S.C. § 2778, should be adopted to interpret this term. As interpreted, “sophisticated weaponry” would then be those items designated on the Munitions List as “significant military equipment.” See 22 C.F.R. §§ 120.19(a), 121.1(b). He concludes by demonstrating that the items listed in the indictment are in Category VIII(j) of the Munitions List, and are not designated as significant military equipment. The F-4 Phantom itself, listed in Category VIII(a), is so designated. Before turning directly to interpretation of this term, we note that the only decision to analyze § 2M5.2, either before or after its amendment, is an unpublished district court decision. See United States v. Behrmann, No. 89-0445 (D.D.C. May 10, 1990) (available at 1990 U.S.Dist. LEXIS 5658). In Behrmann, the district court was squarely faced with construction of the phrase “if sophisticated weaponry was involved” as applied to five gyroscopes" }, { "docid": "17657986", "title": "", "text": "or transactions involving, firearms or ammunition. Mutha-na’s challenge to the district court’s interpretation of the Sentencing Guidelines is a question of law which we review de novo. United States v. Ford, 21 F.3d 759, 765 (7th Cir.1994); United States v. Gaines, 7 F.3d 101, 103 (7th Cir.1993). In United States v. Galvan-Revuelta, 958 F.2d 66, 68-69 (5th Cir.1992), the Fifth Circuit rejected an argument identical to Mutha-na’s. The defendant in Galvan-Revuelta was convicted of exporting 10,181 rounds of various caliber ammunition in violation of 22 U.S.C. § 2778(b)(1)(A). Id. at 67. The court held that the district court correctly applied Guideline § 2M5.2 to the defendant’s conviction rather than Guideline § 2K2.1. Id. at 69. We agree with the Fifth Circuit’s conclusion that Guideline § 2M5.2 properly applies to violations of 22 U.S.C. § 2778 involving ammunition. The statutory index of the Guidelines, United States Sentencing Commission, Guidelines Manual, App. A (Nov.1993), states that Guideline § 2M5.2 is the only Guideline applicable to offense conduct in violation of 22 U.S.C. § 2778. Muthana was convicted of violating 22 C.F.R. § 127.2(a) (1993), a Department of State regulation issued under 22 U.S.C. § 2778. Guideline § 2M5.2 therefore applies to his conviction unless this is an “atypical case” in light of the offense conduct and the statute. U.S.S.G.App. A intro, comment.; see Galvan-Revuelta, 958 F.2d at 68. This ease is not atypical because Muthana’s offense involved only ammunition. Application Note One of Guideline § 2M5.2 makes clear that the Sentencing Commission intended the Guideline to apply to these offenses: Under 22 U.S.C. § 2778, the President is authorized ... to control exports of defense articles and defense services that he deems critical to a security or foreign policy interest of the United States. The items subject to control constitute the United States Munitions List, which is set out in 22 C.F.R. Part 121.1. Included in this list are such things as military aircraft, helicopters, artillery, shells, missiles, rockets, bombs, vessels of war, explosives, military and space electronics, and certain firearms. Contrary to Muthana’s position, the items set forth in the Application" }, { "docid": "5449785", "title": "", "text": "bargain. In any event, all parts subject to use on the F-4 Phantom are subject to licensing requirements. See 22 C.F.R. § 121.1 (category VIII(j)). The evidence from over 600 taped conversations overwhelmingly demonstrates both knowledge and intent by Nissen to supply arms and munitions illegally to the Iranian government. Agent Pena testified that Nissen suggested using the venturi heaters as a test sale to enhance his credibility as an arms supplier because it is difficult to acquire. Arab testified that he knew an export license was necessary to export the heaters out of the United States, and that he had apprised Nissen of this fact. Arab specifically testified that “every time it came up as to the legality of it [exporting the venturi heaters] Mr. Nissen said there were ways around the problem.” Nissen’s brief concedes the above facts, but implores us to consider the government’s conduct in a vacuum. However, the threshold, question regarding entrapment is the defendant’s predisposition to commit the crime, which has been abundantly demonstrated. Allegations of outrageous government conduct are similarly unavailing where the defendant is actively and willingly participating in the criminal conduct leading to his arrest. United States v. Kaufman, 858 F.2d 994, 1002 (5th Cir.1988); Arteaga, 807 F.2d at 427 (“[T]he outrageous-conduct defense requires not only government overinvolvement in the charged crime but a passive role by the defendant as well.”). Accordingly, Nissen’s claim of a due process violation is meritless. B The guideline applicable to Nissen’s offense is U.S.S.G. § 2M5.2. While this guideline was amended effective November 1, 1990, at the time of Nissen’s sentencing, § 2M5.2 provided for a base offense level of 22 “if sophisticated weaponry was involved.” Otherwise, the base offense level was 14. The district court reasoned that, even though the venturi heater is not in itself a sophisticated weapon, sophisticated weaponry was involved — the F-4 Phantom aircraft for which the heater was designed. The district court chose the base offense level of 22 for Nissen’s crime. Nissen argues that this choice was error. He points out that the term “sophisticated weaponry” is not" }, { "docid": "5763930", "title": "", "text": "Thus, we conclude that the district court’s supplemental charge was not error, and consequently we hold that it was not plain error. IV. THE SENTENCING ISSUES A. Was “Sophisticated Weaponry” Involved? Section 2M5.2 of the Sentencing Guidelines, entitled “Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export Li cense,” now modified, provided at the relevant time for two distinct base offense levels for the covered offenses. If “sophisticated weaponry” was involved, the base offense level was 22. Otherwise it was 14. Following a sentencing hearing, the district court found that the optical receivers and infra-red domes constituted sophisticated weaponry, and fixed the base offense level at 22. Defendant argues that the government failed to prove that these items were sophisticated weaponry, posing the issue as one of law (subject to plenary review), rather than one of fact (subject to a clearly erroneous standard). Defendant argues by way of comparison to other items on the Munitions Control List, and asserts that, by “contemporary military or scientific standards,” neither the optical receivers nor the domes satisfy the Guidelines definition of “sophisticated weaponry.” Alternatively, defendant argues that if the base offense level is to be selected not on the basis of whether the components are sophisticated weaponry, but rather on the grounds that they are designed for use as part of such weaponry, the Sidewinder missile is still not sophisticated weaponry by contemporary military or scientific standards. Additionally, defendant attacks the articulated grounds of the district court’s decision by arguing that just because Taiwan was interested in copying the DSU-15, it does not necessarily follow that the item was “sophisticated” for “a simple item may have very precise specifications.” Finally, arguing that this specific Guideline is ambiguous, defendant appears to ask us to invoke the rule of lenity. See United States v. Behrmann, 1990 WL 304063, 1990 U.S. Dist. LEXIS 5658 (DDC). The government bears the burden of proving the facts necessary to justify the upward adjustment by a preponderance of the evidence. See United States v. McDowell, 888 F.2d 285, 291 (3d Cir.1989). To meet this burden, the" }, { "docid": "17657975", "title": "", "text": "The jury found Muthana guilty on Count Two of the indictment and not guilty on Count One. The jury was unable to reach a verdict on Count Three, which the district court dismissed on the government’s motion. The district court applied Guideline § 2M5.2(a)(l) over Muthana’s objection and sentenced him to forty-one months’ imprisonment followed by two years of supervised release. II. Muthana first challenges the sufficiency of the evidence to support his conviction on Count Two. Muthana bears a “heavy burden” in making this claim. United States v. Olson, 978 F.2d 1472, 1478 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1614, 123 L.Ed.2d 174, 175 (1993). In reviewing his challenge, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). We may reverse a conviction “ ‘only when the record is devoid of any evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt.’ ” United States v. Johnson, 26 F.3d 669, 684 (7th Cir.) (citation omitted), cert. denied, — U.S. -, 115 S.Ct. 344, 130 L.Ed.2d 300 (1994). Section 38 of the Arms Export Control Act, 22 U.S.C. § 2778, authorizes the President to control exports of defense items through a licensing system administered by the Department of State. The items which require a license to export are designated as “defense articles” and set forth in the United States Munitions List, 22 C.F.R. § 121.1. The Act proscribes a person from exporting a defense article without a license unless certain exceptions apply. 22 U.S.C. § 2778(b)(2). A Department of State regulation in effect at the time of the offense of conviction provides in relevant part: It is unlawful to use any export or intransit control document containing a false statement or misrepresenting or omitting a material fact for the purpose of exporting any defense article" }, { "docid": "21894910", "title": "", "text": "sentencing court may impose a sentence outside the range recommended by the guidelines if it finds any aggravating or mitigating circumstance “ ‘of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’ ” § 5K2.0 (quoting 18 U.S.C. § 3558(b)). While the district court did not specifically advert to §§ 5K2.8 or 5K2.0, we are free to consider their applicability. See Acha v. United States, 910 F.2d 28, 30 (1st Cir.1990); Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.1984) (court of appeals free to affirm based on any ground supported by the record). The court did rely expressly upon § 5K2.14, which authorizes departures for the endangering of the public welfare and national security, and on § 2M5.2, which permits departures where an extreme amount “of planning or sophistication” or “multiple occurences,” or a threat to national security is found. § 2M5.2, comment. (n.2). Appellants argue that the district court erred in deeming the threat to national security and the potential for death and destruction produced by appellants’ conduct “aggravating circumstances,” because, according to appellants, these factors were adequately taken into account by the Sentencing Commission in establishing the guidelines. Appellants note that the Arms Export Control Act underlying Counts One and Two of the indictment was enacted in “furtherance of world peace and the security and foreign policy of the United States,” 22 U.S.C. § 2778(a)(1), and that § 2M5.2 of the guidelines, prescribing the base offense level for the arms export offenses, presumes the existence of a threat to national security and the potential for death and destruction. They similarly attack the court’s reliance upon appellants’ terroristic purpose in the departure determination, claiming that their convictions for the offense charged in Count Four were predicated upon terrorist activity, namely, their “aiding a faction and body of insurgents.” We find no merit to these arguments. Their logic would require that an internationally trained terrorist bent on murdering scores of innocent civilians be sentenced no more severely than an unlicensed arms dealer; and that one who would provide arms" }, { "docid": "17657974", "title": "", "text": "(1993). Count Two charged Muthana with knowingly and willfully using an export control document containing a false statement and omitting a material fact to export defense articles. 22 U.S.C. § 2778(c); 22 C.F.R. §§ 127.2, 127.3 (1993). Count Three charged Muthana with knowingly and willfully delivering firearms and ammunition to a common carrier for transportation and shipment in interstate and foreign commerce without written notice to the carrier. 18 U.S.C. §§ 922(e), 924(a)(1)(D). Muthana pleaded not guilty and testified in his own defense at trial. Muthana testified that he was unable to read or write English and could speak English only on a limited basis. With respect to his taped conversations with Kupsche, Muthana testified that he believed that Kupsche, not him, was required to obtain a license to export the ammunition. Muthana admitted that he lied to Miehalarias about the parcels when Michala-rias was preparing the waybill but testified that he later told Meyhoefer that the parcels contained ammunition. Muthana also testified that he concealed the ammunition in honey to avoid Jordanian government authorities. The jury found Muthana guilty on Count Two of the indictment and not guilty on Count One. The jury was unable to reach a verdict on Count Three, which the district court dismissed on the government’s motion. The district court applied Guideline § 2M5.2(a)(l) over Muthana’s objection and sentenced him to forty-one months’ imprisonment followed by two years of supervised release. II. Muthana first challenges the sufficiency of the evidence to support his conviction on Count Two. Muthana bears a “heavy burden” in making this claim. United States v. Olson, 978 F.2d 1472, 1478 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1614, 123 L.Ed.2d 174, 175 (1993). In reviewing his challenge, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). We may reverse a conviction “ ‘only when the" }, { "docid": "17657984", "title": "", "text": "waybill; the jury may have rationally concluded that Muthana did not know that he was required to obtain a license to export firearms and ammunition, but that he was aware that lying on an export control document was illegal. The verdicts thus are not necessarily inconsistent. Even taking Muthana’s argument for all that it may be worth, his claim nevertheless fails. A conviction by a jury on one count cannot be reversed simply because it was inconsistent with the jury’s verdict of acquittal on another count. United States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471, 479, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Lahey, 55 F.3d 1289, 1296 (7th Cir.1995); United States v. Scop, 940 F.2d 1004, 1007 (7th Cir.1991). Muthana’s asserts that post-verdict comments by jurors expressing confusion concerning the district court’s willfulness instruction require reversal. The comments were made on the record after the jury had been polled on Count Two upon Muthana’s timely request. Fed.R.Crim.P. 31(d); United States v. Marinan, 32 F.3d 1209, 1212-13 (7th Cir.1994). The twelfth juror’s assent to the verdict rendered the verdict final. Marinan, 32 F.3d at 1213. Juror testimony regarding the jury’s deliberations is not admissible to impeach the verdict unless an extraneous influence was alleged to have affected the jury. Fed.R.Evid. 606(b); Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 2748, 97 L.Ed.2d 90 (1987); Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 269, 126 L.Ed.2d 220 (1993). The jurors’ comments are barred by Rule 606(b). III. Muthana contends that the district court erroneously applied Guideline § 2M5.2 to his conviction rather than Guideline § 2K2.1. Guideline § 2M5.2(a)(l) establishes a base offense level of twenty-two and applies to offenses involving the “exportation of arms, munitions, or military equipment or services without [a] required validated export license.” The version of Guideline § 2K2.1(a)(7) effective November 1, 1993, establishes a base offense level of twelve and applies to offenses involving unlawful receipt, possession, transportation of," }, { "docid": "5449778", "title": "", "text": "PER CURIAM: Karl Erik Nissen was convicted and sentenced for conspiring, 18 U.S.C. § 371, and violating the Arms Export Control Act, 22 U.S.C. § 2778, and interpretive regulations. He argues that, because of alleged due process violations by the government in the conduct of its investigation, the charges against him should be dismissed. He also challenges the district court’s interpretation and application of the guideline cover-mg his offense, U.S.S.G. § 2M5.2. We affirm. I United States Customs officials in Corpus Christi, Texas, set up an undercover business called Plane Things, Inc., primarily to ferret out persons dealing in controlled substances and transporting it by aircraft. John Danielson, an individual working undercover for U.S. Customs, was the manager of Plane Things. Two aircraft brokers put Danielson in contact with Nissen’s co-defendants, Ronald Arab and his wife. The Arabs and Nissen were attempting to negotiate the purchase of military equipment for export. Nissen, a resident and citizen of Sweden, had come to the United States with a large list of military parts he wished to procure. He gave this list to Arab, who passed it to Daniel-son, who ultimately passed it to the U.S. Customs case agent, Alonzo Pena. Among other things, the list included C-130 aircraft, various military aircraft parts, Stinger missiles and rifles. Agent Pena determined the parts were on the United States Munitions List, see 22 C.F.R. § 121 et seq., that can only be dealt with by licensed exporters. Because of Nissen’s foreign citizenship, Pena realized that Nissen could not be licensed to make such exports. Licenses to sell or trade to Iran military aircraft parts and arms or defense articles from the Munitions List clearly would not be given by the State Department. The licensing requirements include the filing of an end-user certificate, a statement by the applicant attesting to the truth of the designated ultimate user, and of the applicant’s intent not to divert the arms from the intended use attached to an application for a State Department license to export munitions. See Arms Export Control Act, 22 U.S.C. § 2778, and interpretive regulations, 22" }, { "docid": "20472024", "title": "", "text": "to export merchandise in violation of 18 U.S.C. § 554 and 18 U.S.C. § 371; (2) exporting a defense article without a license, in violation of 22 U.S.C. § 2778; and (3) and (4) two sales of merchandise, prior to exportation, knowing the merchandise was intended for exportation contrary to 22 U.S.C. § 2778, in violation of 18 U.S.C. § 554. Carper pled guilty to the four counts without the benefit of a plea agreement. At sentencing, the court considered the sentencing factors set out in 18 U.S.C. § 3553(a). The court then granted a variance, going below the Sentencing Guidelines range because of Carper’s military service and because there was little to no likelihood of recidivism. (The court did not grant Carper’s other variance requests, however.) The sentence imposed was thirty-six months imprisonment and three years supervised release. The court also ordered restitution of $7214 and a $400 special assessment. Carper timely appealed his sentence. ANALYSIS The main issue on appeal is whether the district court correctly interpreted the Guidelines in calculating Carper’s three-year sentence. We review the district court’s interpretation of the Guidelines de novo. United States v. Garcia-Guerrero, 635 F.3d 435, 438 (9th Cir.2011). The relevant Guideline, U.S. Sentencing Guidelines Manual § 2M5.2, “Exportation of Arms, Munitions, or Military-Equipment or Services Without Required Validated Export License,” reads: “(a) Base Offense Level: (1) 26, except as provided in subdivision (2) below; (2) 14, if the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns), and the number of weapons did not exceed ten.” PVS-14 devices are not “non-fully automatic small arms” within the plain meaning of U.S. Sentencing Guidelines Manual § 2M5.2(a)(2). First, the examples listed — “rifles, handguns, or shotguns” — are instructive as to the meaning of non-fully automatic small arms, and those examples are not similar to PVS-14 devices. See U.S. Sentencing Guidelines Manual § 2M5.2(a)(2). Second, the modifier “non-fully automatic” suggests that the relevant arms are firearms, a description which excludes PVS-14 devices. See generally Webster’s Third New International Dictionary 148 (1986) (defining “automatic,” inter alia, as “of a firearm ”). Consequently," } ]